Inland Steel Co.

National Labor Relations Board - Board Decisions

Nov 12, 1938

9 N.L.R.B. 783 (N.L.R.B. 1938)

In the Matter Of INLAND STEEL COMPANY and STEEL WORKERS OR-
GANIZING COMMITTEE AND AMALGAMATED ASSOCIATION OF IRON,
STEEL, AND TIN WORKERS OF NORTH AMERICA, LODGE Nos. 64, 1010,
and 1101
Case No. C-05?.-Decided November 10, 1938
- Iron and Steel Industry-Interference, Restraint, or Coercion: anti-union
statements by supervisory officials-Unit Appropriate for Collective Bargain-
ing: production, maintenance, and transportation workers, with certain cate-
gories excluded ; two plants 25 miles apart included in one unit ; common man-
agement ; labor policies centrally determined ; desires of employees-Repre-
sentatives: proof of choice; membership cards checked against pay roll-Col-
lective Bargaining: announcement at outset of negotiations that company re-
fused to enter into signed agreement with union ; duty of employer under
circumstances to embody understandings reached with union in signed agree-
ment-Company-Dominated Union: outgrowth of admittedly illegal employee
representation plan ; solicitation for membership therein by supervisory 'of-
ficials of company ; contrasting hostility toward legitimate union ; disestablished,
as agency for collective bargaining. -
Mr. I. S. Dorfman, for the Board.
Mr. Ernest S. Ballard, Mr. Frederic Burnham, Mr. Herbert A.
Friedlich,, and Mr. Ralph E. Bowers, all of Chicago, Ill., for the
respondent.
Mr. Lee Pressman, and Mr. Anthony Wayne Smith, of Washing-
ton, D. C., for the S. W. O. C.
Mr. Maurice E. Crites, of Hammond, Ind., for the Independent.
Mr. Lewis M. Gill, and Mr. Aaron Lewittes, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed jointly by the Steel
Workers Organizing Committee, herein called the S. W. O. C., and
the Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge Nos. 64, 1010, and 1101, the National Labor
Relations Board, herein called the Board, by the Regional Director
9 N. L. R. B., No. 73.
783
784 NATIONAL LABOR RELATIONS BOARD
for the Thirteenth Region (Chicago, Illinois) issued its complaint
and notice of hearing dated June 12, 1937, against the Inland Steel
Company, Chicago, Illinois, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. The complaint
alleged in substance that on June 8, 1937, and at all times thereafter,
the S. W. O. C. represented a majority of the respondent's employees
in an appropriate unit; that. the respondent, by refusing to enter
into a signed agreement with the S. W. O. C. regardless of the
terms proposed, had refused and was refusing to bargain collectively
with the S. W. O. C.; that the respondent had initiated, dominated,
interfered with, and, contributed support to the Steel Workers Inde-
pendent Union, Inc., herein called the Independent, a labor organ-
ization, and was continuing to dominate, interfere with, and support
the Independent; and that the respondent had urged and warned its
employees to refrain from joining or retaining membership in the
S. W. O. C. and was continuing to do so. The complaint and accom-
panying notice of hearing were duly served upon the respondent.
On June 18, 1937, the respondent filed an answer to the complaint,
admitting certain allegations as to the nature of its business, but
denying that it had engaged in or was engaging in the unfair labor
practices as alleged. Particularly, it admitted that it had refused to
sign an agreement with the S. W. O. C., but set forth a number of
reasons for such refusal, and denied that it had refused to bargain
collectively with the S. W. O. C. at any time.
After two postponements, notices of which were duly served upon
the parties, the hearing opened in Chicago, Illinois, on June 28, 1937,
before Charles A. Wood, the Trial Examiner duly designated by the
Board. On July 15, 1937, the Board rested its case. The hearing was
closed on October 13, 1937.
The Board, the respondent, and the Independent were represented
by counsel and participated in the hearing. The Independent was
permitted to intervene on the questions relating to it raised by the
complaint. Full opportunity to be heard, to examine and cross-ex•
amine witnesses, and to introduce evidence bearing on the issues was
afforded all parties.
On October 11, 1937, just before the hearing closed, the Board,
acting pursuant to Article II, Section 37, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
the proceedings in the case transferred to and continued before it.
After the hearing had closed, the respondent made various motions
DECISIO\TS AND ORDERS 785n
to incorporate in the official record the transcript of certain off-the-
record proceedings, said transcript having been made at the hearing
by the official reporter but kept apart from the official record. Said
motions were referred to the Trial Examiner for ruling, and on Feb-
ruary 7, 1938, the Trial Examiner denied the motions on the ground
that they did not appear to include all the proceedings had off the
record, the denial being without prejudice to renewal of motions by
the respondent upon a complete transcript of all the off-the-record-
proceedings. On February 21, 1938, the respondent renewed its mo-
tions and moved for the incorporation into the official record of
certain additional off-the-record material, which, the respondent al--
leged on information and belief, made complete the off-the-record.
material proposed to be incorporated. The Board hereby orders in-
corporated into the official record all of the off-the-record proceedings-
covered by the respondent's various motions as set forth above. Dur-
ing the course of the hearing, hundreds of exhibits were offered into-
evidence. All such exhibits which were neither admitted nor rejected
by the Trial Examiner are hereby admitted into evidence. All of the
objections to the admission of evidence not passed on by the Trial
Examiner are hereby overruled. We have reviewed the rulings of the
Trial Examiner on motions and on objections to the admission of
evidence and find that no prejudicial errors were committed. The,
rulings are hereby affirmed.
On April 5, 1938, the Board issued a Decision and Order in the
case. On May 12, 1938, the Board vacated its Decision and Order.
On June 7, 1938, the Board issued Proposed Findings, Proposed-
Conclusions of Law, and Proposed Order in the case, serving them-
on the parties and affording opportunity for the filing of exceptions
and briefs, and for oral argument. Subsequently, briefs and excep-
tions to the Proposed Findings, Proposed Conclusions of Law, and
Proposed Order were filed by the respondent and the Independent-
Oral argument was had before the Board in Washington, D. C., on_
August 22. The respondent, the Independent, and the S. W. O. C.
appeared by counsel and participated.
Following the issuance of the Board's Proposed Findings, the re-
spondent filed with the Board a motion to dismiss the complaint and
a prayer for a further hearing for the purpose of establishing that
the Board had abdicated its function of deciding the ease and had
turned such function over to subordinates. The motion and the
prayer are hereby denied. The Board has fully considered the excep-
tions to the Proposed Findings, Proposed Conclusions of Law, and
Proposed Order, and, except as they are consistent with the findings,
conclusions, and order set forth below, finds no merit in them.
786 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Inland Steel Company, the respondent, is a Delaware corporation
having its principal office and place of business in Chicago, Illinois.
At its plants in Indiana Harbor, Indiana, and Chicago Heights,
Illinois, which are the only plants involved in this case, the respondent
is engaged in the manufacture, sale, and distribution of semi-finished
and finished steel products, pig iron, and coke. It is also engaged,
through various subsidiaries, in the mining of iron ore and coal and in
the operation of freight vessels on the Great Lakes. Based on ingot
capacity, the respondent ranks eighth among the steel companies in
the United States, accounting for over three per cent of the total gross
ingot capacity of all such steel companies. It supplies nearly every
important steel consuming industry. In the course of its operations,
it obtains from States other than the States of Illinois and Indiana
various raw materials, including iron ore, limestone, coal, tin, oil,
and a wide variety of other materials. In 1936, the respondent's prod-
ucts were distributed as follows: 3.5 per cent in Indiana, 37.1 per cent
in Illinois, 17.5 per cent in Michigan, 15.3 per cent in Wisconsin, and
26.6 per cent in other States. In its answer to the complaint the
respondent admits that "in the course of its business at its Indiana
Harbor and Chicago Heights plants it causes and has caused large
quantities of raw materials to be purchased and transported in inter-
state commerce to its plants and large quantities of finished products
to be sold and transported in interstate commerce from those plants."
It is clear that the respondent is engaged in interstate commerce
on a vast scale.
IT. THE ORGANIZATIONS INVOLVED
The Steel Workers Organizing Committee is a special committee
set up in June 1936 for the purpose of organizing workers in the steel
industry along industrial lines., A working arrangement with the
Amalgamated Association -of Iron, Steel and Tin Workers of North
America provides for the S. W. O. C. setting up lodges of the Amalga-
mated. There are two lodges of the Amalgamated in the respondent's
plant at Indiana Harbor, and one in the Chicago Heights plant.
The functions of the S. W. O. C. and the Amalgamated are woven
lA copy of the "Memorandum of Agreement" between the Amalgamated and the Com-
mittee for Industrial Organization was introduced into evidence as Board Exhibit No 8
It provides for the establishment of the S W 0 C, which has "power to handle all
matter relative to the organizing campaign, other than the issuance of charters" It
further provides that "The Committee and the officers of the Amalgamated Association
shall have exclusive power to deal with the steel companies in order to reach agree-
ments, . . "
DECISIONS AND ORDERS 787
together. Delegates elected by the lodges participate in annual
S. W. 0. C. conventions. Workers who join are, for all practical pur-
poses, members of both the Amalgamated and the S. W. 0. C.2 We
find that both the Amalgamated and the S. W. 0. C. are labor organi-
zations. With certain exceptions noted below, the S. W. 0. C. admits
to membership all production, maintenance, and transportation em-
ployees of the respondent engaged in nonsupervisory capacities.
Steel Workers' Independent Union, Inc. is an unaffiliated labor or-
ganization . It admits to membership employees of the respondent at
its Indiana Harbor plant other than company officials and employees
who have the authority to employ, discharge, or discipline other em-
ployees. Employees of the respondent at the Chicago Heights plant
.are apparently not admitted by the Independent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The S. W. 0. C. urges a single unit to comprise both plants, while
the respondent would have us segregate each plant in a separate bar-
gaining unit. The Indiana Harbor plant is some 25 miles away from
the Chicago Heights plant. The Indiana Harbor plant employs more
than 12,000 persons in the manufacture of coke, steel, and a wide
variety of semi-fabricated and fabricated steel products. The Chicago
Heights plant employs only about 500 men and engages in the more
limited activity of rerolling old steel rails into merchant bars, rein-
forcing bars, and fence posts. The manufacturing processes of the
two plants are independent of each other except for a negligible trans-
fer of rejected rails from the larger to the smaller plant for rerolling.
While a number of occupations are common to both, relatively few
men can transfer from one plant to the other, or from one mill to an-
other at Indiana Harbor, because each department operates with
specialized material and equipment. The respondent could abandon
the smaller plant and transfer the work to the larger by rearranging
the latter somewhat.
The respondent's executive offices, located in downtown Chicago,
coordinate all the activities of the Company. The operating autono-
my, enjoyed by the works manager of each plant, is not without limi-
2 Membership cards introduced into evidence are headed "Amalgamated Association of
Iron. Steel , and Tin workers of North America ( Steel Workers Organizing Committee)"
and contain the follo\\ing provision
I hereby accept membeiship in the Amalgamated Association of Iron, Steel, and
Tin Workers of North America, through the Steel Workers Organizing Committee,
and of my own free will hereby authorize the Steel Workers Organizing Committee,
its agents or representatives to act for me as a collective baigaining agency in all
natters pertaining to rates of pay, wages, hours of employment , or other conditions
of employment
134068-39-vol. ix-51
788 NATIONAL LABOR RELATIONS BOARD
tation, since both must report to the same executive officer. The
Chicago offices settle the board questions of labor policy, including
wages, hours, and basic working conditions. Substantially similar
general labor regulations apply to both plants. Though each plant
has a different basic wage rate, changes in both have occurred
simultaneously.
Under the N. R. A. codes the plants were in distinct districts. Each
plant had its own Representation Plan. However, the separate Repre-
sentation Plans, subsequently abandoned because in violation of the
Act, are not shown by the record to have had a successful collective
bargaining history during their short career. The S. W. O. C. has
admitted employees in both plants to membership in its organization
from its very inception. Company spokesmen and S. W. O. C. repre-
sentatives clearly included both plants in the negotiation for a signed
agreement, which we discuss below.
During the depression, the respondent actually contemplated aban-
doning the plant at Chicago Heights and transferring the work to
the other plant. When the Chicago Heights employees requested a
wage increase, the Company argued that the Indiana Harbor plant
could do the work more cheaply. This the men construed as a threat
to move the plant if they persisted in their demands.
While we do not decide that the argument was intended as a threat,
we cannot reject the men's request for a unit large enough to cope
with the potential danger. The Act directs the Board to select a
unit which will "insure to employees the full benefit of their right to
self-organization and to collective bargaining." Accordingly, we must
give great weight to the preference of the employees, expressed
through freely chosen representatives, found below to represent a
majority at each plant. On this record each plant might constitute a
unit appropriate for collective bargaining if the men did not indi-
cate a different choice. We cannot condemn as unreasonable the feel-
ing that the respondent's power to pit group against group forced
the men to choose between protective combination and destructive
competition. The common ultimate management, especially in labor
matters, gives the employees of both plants a strong community of in-
terest. Under these circumstances unitary employer control may be
matched by unitary employee representation. The respondent's wit-
nesses did not deny that a single unit would be feasible. The Indiana
Harbor plant works manager testified he had no objection to a single
unit if that is what the men wanted. We find that both plants together
constitute the appropriate unit.
The S. W. O. C. contended that supervisory and clerical employees,
timekeepers, technical engineers, technicians, draftsmen, chemists,
watchmen, nurses, bricklayers, truck drivers, and monthly paid em-
ployees, should be excluded from the appropriate unit.. The evidence
DECISIONS AND ORDERS 789
showed that shortly after the beginning of 1937 the S. W. O. C. started
to exclude men in these categories from membership in its organization.
The respondent urged that all but "management" supervisors be
included in the appropriate unit.
The respondent's witnesses attempted to distinguish so-called man-
agement supervisory employees-superintendents, assistant superin-
tendents, management foremen-from so-called non-management
supervisory employees-non-management foremen, subforemen, push-
ers, strawbosses, and leaders-on the ground that the former exercise
initiative and judgment, and hire and discharge; while the latter
transmit detailed orders, sometimes work alongside their subordinates,
and cannot hire or discharge. Without denying to the respondent the
privilege of distinguishing between the two classes of supervisory
employees for its own purposes, we find the distinction arbitrary for
the purpose of determining the appropriate unit hi this case. Every
instance of hiring or discharging by a management supervisory em-
ployee is automatically reviewed at least once before becoming final.
At the same time, non-management supervisory employees have the
power to recommend hiring or discharging and their recommendations
are given weight. The difference between an effective power subject
to an automatic review and an advisory power entitled to weight is in-
substantial. Further, the respondent expects to enforce discipline
through the non-management supervisory employees as well as through
the management supervisory employees. Courses sponsored by the
Company for foremen were open to men in both classes. Manage-
ment supervisors are drawn almost exclusively from the ranks of
non-management supervisors. In many cases, a non-management
supervisory employee has a number of other non-management super-
visory employees subject to his orders. Clearly, both categories of
supervisors are closer to management than to the men. Accordingly
we shall exclude non-management supervisory employees as well as
management supervisory employees from the appropriate unit.
The Indiana Harbor plant has a number of truck drivers and brick-
layers. The S. W. O. C. would exclude them from the appropriate
unit because they have their own established craft unions. The truck
drivers and bricklayers have not indicated any desire to be included.
We shall exclude them. At Chicago Heights there are no bricklayers.
One employee acts as part bricklayer, part handyman. He is eligible
to membership in the S. W. O. C. We shall include him in the
appropriate unit.
While the vast majority of production employees are paid by the
day or hour, several are paid by the month. As a rule, the monthly
paid employees are more skilled and more difficult to replace; in the
case of lay-offs, they are retained longer than the hourly men; they
receive longer vacations; also, there are indications that some of them,
790 NATIONAL LABOR RELATIONS BOARD
though not so designated, do occupy supervisory positions. Never-
theless, they work alongside the men, are an integral part of the pro-
duction process, and are not clearly supervisory employees. Follow-
ing our usual practice we shall not exclude non-supervisory production
employees merely because they are paid by the month. M
The respondent's witnesses classified clerical employees as wholly
clerical or partially clerical. In addition to their writing duties, some
partial clerks disburse materials, others run errands, still others help
set gauges or chalk lines, and still others discharge managerial, ad-
ministrative, or technical functions. However, the slab recorders,
in addition to their recording duties, also engage in the manual labor
of unloading slabs, and should, therefore, be included in the appro-
priate unit. Except for the slab recorders, we see no reason for con-
sidering the partially clerical as anything but clerical employees.
The justification for excluding, clerical employees from the bargain-
ing unit in this kind of case is stated in prior decisions of the Board.
Following our usual practice, we shall exclude them as well as the so-
called wholly clerical employees, managerial and office help, time-
keepers, technical engineers, technicians, draftsmen, chemists, watch-
men, and nurses.
We find that the production, maintenance, and transportation
workers in the plants at Indiana Harbor and Chicago Heights, exclud-
ing supervisory and clerical employees, managerial and office help,
timekeepers, technical engineers, technicians, draftsmen, chemists,
watchmen, nurses, truck drivers, and bricklayers, constitute a unit
appropriate for the purposes of collective bargaining and that said
unit insures to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
2. Representation by S. W. O. C. of the majority in the appropriate
unit
On May 26, 1937, the S. W. O. C. called a strike which lasted
throughout the month of June. The strike closed both plants. It is
undisputed that on June 8, 1937, the date of the alleged refusal to
bargain, the labor dispute was current, and the strikers were
employees within the meaning of Section 2 (3) of the Act.
The respondent produced pay rolls in effect on May 26 which classi-
fied the occupations of its employees, giving the number in each cate-
gory and the total number working at each plant.3 They show a total
of 12,432 employees for Indiana Harbor and 496 for Chicago Heights.
Applying the above findings on the appropriate unit, we find that
8 Board Exhibit No 77 for the Indiana Harbor plant and Board Exhibit No 222 for
the Chicago Heights plant.
DECISIONS AND ORDERS 791
1,862 persons in the larger plant and 56 persons in the smaller plant
fall within one or more of the excluded categories.4
Proof of membership in the S. W. 0. C. on June 8 included stipula-
tions and testimony. It was stipulated that 6,135 employees, on the
Indiana Harbor pay roll on June 8, signed union cards on or before
that date.' These cards designated the S. W. 0. C. as collective bar-
gaining agent,6 and the evidence shows that the men became members
upon signing. By further stipulation, the names of a number of men,
admittedly on the Indiana Harbor pay roll throughout the strike, ap-
peared on union cards in the possession of the S. W. 0. C. on or before
the date of the alleged refusal to bargain.7 However, Company coun-
sel disputed the authenticity of these signatures because they were
printed and therefore not comparable with specimen signatures on
company records. The undisputed evidence shows that 89 of these
appeared on the membership roll and paid dues, thus establishing their
designation of the S. W. 0. C.8 By stipulation in lieu of testimony,
182 other persons, on the pay roll on June 8, were members of the
S. W. 0. C. on that date.' A final group of 45 persons testified that
they were Indiana Harbor plant employees and S. W. 0. C. members,
on June 8.10 The respondent checked the occupations of the S. W.
0. C. members, falling in some one of the above classes, and produced
evidence to show that 191 must be deducted from the S. W. 0. C.
total because excluded from the appropriate unit." A further check
,'The following table gives the number in each excluded category, except that a person
barred from the appropriate unit for more than one reason, is placed in only one category,
in order to make the table non-duplicating.
Excluded Category
Indiana
Harbor
Chicago
Heights
Supervisory, including superintendents, assistant superintend-
ents, foremen, subforemen, pushers, strawbosses, and leaders_ 780 31
Manageiial and office help, including timekeepeis, watchmen,
and nurses------------------------------------------- 375 5
wholly and partially clerical----------------------------- 396 19
Technical engineers, technicians, draftsmen, and chemists----- 174 1
Bricklayers---------------------------------------------- 116 0
Truck drivers and hospital chauffeur----------------------- 21 0
Totals-------------------------------------------- 1,862 56
Grand total----------------------------------------------------- 1,918
5Board Exhibit No 77 lists their names and Respondent Exhibit No 47 states their
occupations
°Board Exhibit Nos 79, 80, 81
7 Board Exhibit No 73 lists their names
8 Board Exhibit No 78 lists their naives and Respondent Exhibit No 48 states their
occupations. The list includes 91 names, but Austin Tillotson already appears on
Board Exhibit No. 72 and Nick Christy wwas not found on the respondent's pay roll
U Board Exhibit No 485 lists the names and the occupations. The list includes 189
persons but seven of these could not be found on the pay roll Respondent Exhibit No. 521
names these seven.
11 Board Exhibit No. 483 lists the names and occupations of 44. Edward McDonald is
the 45th (R 13025).
11 Respondent Exhibit No. 40 (except for page 10) lists 195 but 5 belong in the appro-
priate unit: 3 slab recorders (pages 2. 7. 8), 1 gardener (page 8), and 1 janitor (page 8)
A foreman listed in Board Exhibit No. 72, but not on Respondent Exhibit No. 40, is the
191st. (R. 13172.)
792 NATIONAL LABOR RELATIONS BOARD
shows that 35 more must also be deducted because not in the appropri-
ate unit 12
The respondent called some 700 witnesses to testify that, after
joining the S. W. 0. C. and before June 8, they joined the Inde-
pendent.' Where men join one union, then, subsequently, of their
own free will, join a rival union, before a refusal to bargain
occurs, it is usually fair to infer that the men have revoked the
collective bargaining agency of the first and cannot be counted
toward the majority which it must have on the date it alleges
a refusal to bargain. We find below, however, that the respondent
dominated and interfered with the formation and administration
of the Independent. It is incongruous to assert that the designa-
tion of a company-dominated union represents a free choice. The
self-contradiction is especially apparent here, where a large number
testified they joined the Independent because it was sponsored by
the respondent, or because they were solicited by the respondent's
supervisors; where numerous others testified that in their opinion
when they joined the Independent, the Company favored the In-
dependent and opposed the S. W. 0. C.; and where very many
others testified that they joined the Independent only to return to
work. To recognize these as defections from the S. W. 0. C. would
be to permit the respondent to violate Section 8 (5) of the Act
with impunity by the simple expedient of violating Section 8 (2).
Even if we were to recognize these defections as acts of free
choice, which we do not, the majority of the S. W. 0. C. on June 8
would still be definitely established. Thus on the respondent's theory
we should deduct from the S. W. 0. C. total all those in the appro-
priate unit who testified that when they joined the Independent
they wanted it as their union, that they joined it after they signed
for the S. W. 0. C., and on or before June 8. Nineteen persons in
the group called by the respondent have already been deducted
above from the S. W. 0. C. total because not in the appropriate
unit.13 Another eight testified they never joined the S. W. 0. C.14
These were admittedly instances of mistaken identity, since the re-
spondent stipulated that persons with these names did join the
S. W. 0. C. on or before June 8. Eight persons, who by stipula-
tion joined the S. W. 0. C. on or before the date of the alleged
refusal to bargain, testified they joined the S. W. 0. C. after the
Independent.15 A bloc of 26 testified that though they joined the
Independent they remained members of the S. W. 0. C. or wished
12 Board Exhibit No. 485 and Respondent Exhibit Nos 47, 48. Appendix A annexed
hereto lists their names
"Appendix B annexed hereto lists their names.
14 Steve Simon, Mike Kesilis , Robert Smith , Charles Knerr, George Bogdan, Grandberry
Goode, Seabron Johnson, Valentine Bolog'
15J. Segura , Max Marchuk , Arthur Stewart, Frank Sutkowski, Louis Holewinski, Fred
Stafford, Mike Vorski, Robert Adams
DECISIONS AND ORDERS 793
the S. W. O. C. to represent them, from the time they joined the
S. W. O. C. to and including June 8.16 Finally, 93 testified that
they did not join the Independent until after June 8.17 Obviously,
none of the numbers in these five categories are to be deducted from
the S. W. O. C. count. While in the case of a great number of
the respondent's witnesses, the testimony was not clear enough to
show whether designation of the Independent occurred before or
after June 8, we shall treat these as having occurred before, for the
purposes of this calculation. Accordingly, on the respondent's theory
we should deduct 548 from the S. W. O. C. membership, as in-
stances of defection before June 8, or as cases where the card
signatories never did desire to designate the S. W. O. C.18
The respondent also produced evidence to show that 58 Indiana
Harbor employees, not already excluded from the S. W. O. C. total,
had chosen both the S. W. O. C. and the Independent on or before
June 8, the evidence not showing which union the men selected last.19
For the purposes of this calculation, we should exclude them to,"
from the S. W. O. C. count. Thus, in all, 832 should be deductea
from the S. W. O. C. total at Indiana Harbor.20
By stipulation, 281 Chicago Heights employees, on the pay roll
on June 8, had signed cards by that date.21 The evidence shows
that these men became members of the S. W. O. C. upon signing.
Fifty-five persons testified that they were Chicago Heights employees
and S. W. O. C. members on the date of the alleged refusal to
bargain.22 The respondent checked the occupations of these men
and produced evidence to show that four are not in the unit which
we have found to be appropriate.23
10 Appendix C annexed hereto lists their names.
17 Appendix D annexed hereto lists their names.
16 This also includes the names listed on Respondent Exhibit No. 520.
Purported defections from S. W. 0. C. prior to June 8- ----------------- 702
Deduct persons in the five above -mentioned categories-------------------- 154
548
19 Respondent Exhibit No. 41 lists 60, but Baldomero Alvarado has been deducted above
because not in the appropriate unit and Cruz Delgado has been deducted above as a case
of defection from the S. W. 0. C. before June 8.
S. W. 0. C. members excluded from the appropriate unit :
By company check (see above, page 7) ------------------------------ 191
By further check (see above, page 7) ------------------------------ 35
- 226
Defections from S W. 0. C. prior to June 8:
Witnesses (see above, note 18) ------------------------------------ 548
Names on Respondent Exhibit No. 41 (see note 19) ----------------- 58
- 606
Total deductions---------------------------------------------------- 832
21 Board Exhibit No. 82 ( first six sheets ) lists their names and Respondent Exhibit No.
49 states their occupations.
22 Board Exhibit No 484 lists their names and occupations
23 Respondent Exhibit No . 40 (page 10 ) lists six , But the so -called bricklayer belongs
in the appropriate unit, and the assistant foreman has not been included in the above
S. W. 0. C. count.
794 NATIONAL LABOR RELATIONS BOARD
As shown by the table in the footnote, the deductions demanded by
the respondent's theory leave the S. W. O. C. with a majority of the
employees comprising each plant's portion of the unit as well as a
majority of 446 in the whole unit.24 As we have held above, we
cannot recognize the designations of the company-dominated Inde-
pendent as valid defections from the S. W. O. C. Therefore, the
S. W. O. C.'s majority was considerably greater than 446. We,
therefore, find that on June 8, 1937, the S. W. O. C. was the duly
designated representative of the majority of the employees in an
appropriate unit. Pursuant to Section 9 (a) of the Act, it was,
therefore, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment.
3. The refusal to bargain collectively
The complaint alleges that on June 8, 1937, the respondent refused
to enter into a signed agreement with the S. W. O. C., regardless
of the terms proposed, thereby refusing to bargain collectively as
required by the Act. The respondent's answer avers that while it
did announce that it did not propose to enter into a signed contract
with the S. W. O. C., it stood ready on June 8 and at all other
times to enter into collective bargaining with the S. W. O. C. Before
considering the fundamental question thus raised, we shall briefly
describe the surrounding circumstances.
On March 17, 1937, the Carnegie-Illinois Steel Corporation entered
into a signed contract with the Steel Workers Organizing Committee.
The agreement pertained only to members of the union. Immedi-
ately thereafter the S. W. O. C. initiated an organizational drive on a
tremendous scale, entering into hundreds of signed contracts with
steel companies, large and small, throughout the country. It is a
matter of common knowledge that a conspicuous exception to this
widespread inauguration of contractual relationships was the so-
called "Little Steel" group. The respondent was in this group.
With this general background in mind, we turn to the negotiations
between the respondent and the S. W. O. C.
u Employees were : Indiana
Harbor
Chicago
Heights
Both
plants
Total pay roll__________________________________ 12, 432 496 12, 928
Deduct excluded categories_______________________ 1, 862 56 1, 918
In appropriate unit________________________ 10,570 440 11,010
S. W. O. C gross membership_____________________ 6, 451 336 6,787
Deduct defections and excluded categories---------- 832 4 836
S W. O. C. net membership ________________ 5, 619 332 5, 951
Fifty per cent of appropriate unit----------------- 5, 285 220 5, 505
Majority in unit_ _________________________ 334 112 446
DECISIONS AND ORDERS 795
a. The negotiations
About the middle of April 1937, a group including William Mai-
hofer and William Thomas ( president of the two S. W. O. C. lodges
at Indiana Harbor), Nicholas Fontecchio (a S. W. O. C. organizer)
and certain others met with James H. Walsh, works manager of the
Indiana Harbor plant , and presented him with a copy of the
Carnegie -Illinois contract for his consideration . Walsh told the
group that he would have to submit the proposed contract to the
respondent 's attorneys for their views before proceeding further.
Thereafter, the negotiations were carried on principally by Van A.
Bittner, Regional Director, Western Area, for the S. W. O. C., and
related to both the Chicago Heights and Indiana Harbor plants.
On May 4, 1937 , Bittner addressed a letter to P. D. Block, president
of the respondent , requesting a conference for the purpose of negotiat-
ing an agreement . A copy of the Carnegie -Illinois contract was
enclosed. The letter was referred to Walsh, who arranged a meeting
with Bittner for the morning of May 14. At that time , Walsh and
DeHoll ( assistant works manager at Indiana Harbor) met with
Bittner and Fontecchio. Walsh indicated then that he saw no reason
for signing an agreement , alleging that the respondent 's wages and
hours were already equal to those in effect at Carnegie -Illinois. How-
ever, he deferred any definite answer until a Mr. Ryerson , a member
of the respondent 's executive committee, who was abroad at the time,
could be consulted.
Ryerson returned on May 23 , and another meeting was arranged
for May 25 . On May 24, at the downtown offices of the respondent,
a majority of the respondent 's executive committee held a meeting to
determine the respondent 's position . Among those members of the
executive committee present were L. E. Block, P. D. Block, E. J.
Block, Ryerson , Randall , Sykes, Walsh, DeHoll . and Ballard, the
respondent 's counsel . It was decided to refuse to enter into a signed
agreement with the S. W. O. C., and Walsh was clothed with author-
ity to convey this official decision to the S. W. O. C. representatives
at the meeting the following day.
On May 25, Walsh and DeHoll met with Bittner, Fontecchio,
Maihofer , Thomas, and Louis Gromola , president of the S. W. O. C.
lodge at the Chicago Heights plant. At the outset of the conference,
Walsh announced the respondent 's decision relative to signing an
agreement . He then showed the conferees a "statement of policy" 25
prepared by the respondent, but the S. W. O. C. contingent indicated
that they regarded it as a completely unsatisfactory substitute for a
signed agreement , since it was unsigned , had no fixed duration, and
21 Board Exhibit No. 15
796 NATIONAL LABOR RELATIONS BOARD
contained a procedure for adjustment of grievances which was
repugnant to the S. W. O. C. representatives. However, there was
little discussion of the terms of either the Carnegie-Illinois contract
or the respondent's statement of policy.
The respondent's refusal to enter into a signed agreement broke up
the negotiations summarily. On May 26, 1937, the S. W. O. C.
called a strike, and operations in the two plants came to a virtual
standstill. On June 8, 1937, Bittner sent a telegram to P. D. Block,
reading as follows :
The Steel Workers Organizing Committee claims to represent
a majority of the workers in your plants located at Indiana
Harbor and Chicago Heights and is prepared to prove it to you
by a check of its own books and membership cards against your
payroll. Since the Steel Workers Organizing Committee repre-
sents a majority it is entitled under the National Labor Relations
Act to bargain collectively with you as the exclusive representa-
tive of all your employees. We therefore demand that you
immediately set a time and place for collective bargaining
negotiations looking toward a signed agreement as required
under said National Labor Relations Act. Please advise.26
The issue was immediately joined. On the same day Walsh sent to
Bittner a telegram reading as follows:
Acknowledging on behalf of Mister P. D. Block your telegram.
I am sure you will recall that at our last conference I made it
entirely clear that we would meet with the Steel Workers
Organizing Committee at any time for purposes of collective
bargaining but that we did not propose to make a signed con-
tract with that committee and that the National Labor Relations
Act does not require the signing of a contract. That is still our
position.27
This reply foreclosed the question as to a signed contract. It will
be noted that the respondent did not raise any question as to the
representative authority of the S. W. O. C.
Subsequently, representatives of the respondent, along with repre-
sentatives of the Republic Steel Corporation, the Youngstown Sheet
and Tube Company, and the Bethlehem Steel Corporation, met with
the Federal Steel Mediation Board. All four of the companies, in-
cluding the respondent, refused to recede from the position that they
would not enter into any agreement, written or oral, with the
S. W. O. C.28
2e Board Exhibit No. 16.
27 Board Exhibit No. 17
28 See Report of Federal Steel Mediation Board to Secretary of Labor Frances Perkins.
Board Exhibit No- 449.
DECISIONS AND ORDERS 797
The strike was ended July 1, 1937, pursuant to a "truce" arrange-
ment in which Governor Townsend of Indiana participated, but no
agreement was entered into by the respondent with the S. W. 0. C.
b. Whether the respondent's refusal to enter into a signed agreement
was, under the circumstances, a refusal to bargain collectively within
the meaning of Section 8 (5) of the Act.29
There is one matter which beclouds the issue and should be dis-
posed of at the outset . The respondent contends that the Act does
not compel an employer to reach an agreement , and urges this in
support of its contention that it has complied with the law . It is, of
course, true that the Act does not require an employer to agree to
any particular " terms. If honest and sincere bargaining efforts fail
to produce an understanding on terms, nothing in the Act makes
illegal the employer's refusal to accept the particular terms sub-
mitted to him. But here there was no issue over terms which ap-
peared incapable of solution . The S . W. 0. C. representatives
expressed to the respondent their confidence that any differences as
to terms could be satisfactorily ironed out . Wilfred Sykes, assist-
ant to the president of the respondent , testified : "The terms were
not discussed . The only question before the executive committee
was: Would we make a contract with the S. W. 0. C ." We see no
reason for requiring the parties to go through the motions of nego-
is The respondent , in its brief , asserts that the question of whether it refused to bargain
collectively cannot properly be considered , because the S. W. 0. C. did not phrase its re-
quest for bargaining negotiations so as to outline with precise accuracy the appropriate
unit, and because at that time the S. W. 0. C. had not proved its majority . It is further
alleged in the brief that any one of 16 ,385 different units might be found to be appropriate,
and that it is grossly unjust to require the respondent to determine in advance which unit
is proper . In view of the respondent ' s absolute silence as to the unit or the majority
during the conversations with the S. W. 0. C., we do not take these contentions seriously.
An analogous claim was made in the Remington-Rand case and conclusively answered by
the Second Circuit Court of Appeals :
The respondent answers that it had no official or conclusive information that the
Joint Board was the duly accredited bargaining representative of the men , and that
it could not have had until the Labor Board had itself so decided . . . In the case at
bar even though the respondent were in doubt as to the Joint Board's authority, that
doubt did not excuse it ; for it is quite plain that its position was not based upon any-
thing of the sort but upon its unwillingness to treat with "outside" representatives
of its employees ; that is to say , to recognize the solidarity of the craft as such. The
greater included the less , and having taken that position , it may not now say that
it could not know whether the Joint Board was properly accredited . It made no effort
to learn the facts and took the chance of what they might be. National Labor
Relations Board v. Remington -Rand, Inc., 94 F. ( 2d) 862
See also National Labor Relations Board v. Giles - Coleman Lumber Company, 98 F. (2d)
18, in which the Ninth Circuit Court of Appeals stated • "Respondent made no objection
to the contract on the basis of the propriety of the unit for which it was being presented.
The Board was entitled to draw the inference that that respondent 's refusal to negotiate
with the Union was motivated , not by doubt as to the appropriate unit, but by a rejec-
tion of the collective bargaining principle."
The same comment may be made here ; the respondent 's position was based not upon
any doubt as to the unit or as to the S. W 0 C. majority , but upon its unwillingness to
enter into a signed agreement.
798 NATIONAL LABOR RELATIONS BOARD
tiating detailed terms in order to raise before the Board the funda-
mental question on which they differed. The question raised squarely
by the facts in this case, and to which we now address ourselves, is
whether the respondent's refusal in advance to embody whatever
terms might be reached in a signed agreement constituted a failure
to bargain collectively within the meaning of the Act.
Before considering whether it was the respondent's obligation to
embody terms in a signed agreement, we must decide whether the
collective bargaining requirement of the Act involves a willingness
to embody terms in any kind of an agreement. The contention that
the Congress intended to guarantee merely the "barren right of dis-
cussion" was raised in Matter of St. Joseph Stock Yards CoInpatay,3°
and we rejected the contention. In our decision iii that case, we
reviewed the relevant precedents in the decisions of the old National
Labor Relations Board, which handled problems arising under Sec-
tion 7 (a) of the National Industrial Recovery Act.31 We cited the
decisions of that Board in the Houde Engineering Corporation 32 and
National Aniline d Chemical Company 33 cases, as well as in other
cases, determining that "collective bargaining" as used in Section 7
(a) meant a process of negotiations looking toward the making of
agreements. We further pointed out that the similarity in wording
of the present Act and Section 7 (a) indicated clearly that the Con-
gress in Section 7 and Section 8 (5) of the Act intended its language
to carry the same obligation. We found that the Reports of the
Congressional Committees on the Act supported this interpretation.
The House Report, we pointed out, speaks of Section 8 (5) as de-
signed to "encourage collective bargaining and the making of agree-
ments," 34 and the Senate Report states : "The object of collective
bargaining is the making of agreements that will stabilize business
conditions and fix fair standards of working conditions." 35 We had
the following to say as to the attitude of employers who refuse to
enter into agreements of any kind with unions :
The solution of the problem lies in the recognition of that
attitude. Such an attitude grows out of an antipathy toward
organization of workers and a refusal to concede that the policy
of the United States shall be the policy of the respondent. It
is designed to thwart and slowly'stifle the Union by denying to it
SO Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 1;9, 2 N. L R B. 39
81 Section 7 (a) guaranteed to employees "the right to organize and bargain collectively
through representatives of their own choosing."
32 Matter of Houde Lngtinee,sup Corporation, 1 N. L R. B. (Old) M.
33 Matter of National Aniline & Chemical Company, 1 N. L. R B (Old) 114.
8' House Report of Committee on Labor, 74th Congress, 1st Session, Report No. 1147,
at p 20
35 Senate Report of Committee on Education and Labor, 74th Congress, 1st Session,
Report No. 573, at p 13
DECISION'S AND ORDERS 799'
the fruits of achievement. It is based upon the knowledge that
in time employees will grow weary of an organization which
cannot point to benefits that are openly credited to its aggressive-
ness and vigilance and not to an employer's benevolence which
on the surface may appear genuine but in truth is forced upon
the employer by the organization. To many his unwillingness
to enter into an agreement with a labor organization may seem
no more than a harmless palliative for the employer's pride and
to amount only to a petty refusal to concede an unimportant
point purely as a face-saving device. But the frequency with
which the old Board was compelled to denounce such a policy
on the part of employers indicates its potency as a device subtly
calculated to lead to disintegration of an employee organization.
Viewed from the other side, the main objective of organized
labor for long has been the collective agreement and the history
of organization and collective bargaining may be written in
terms of the constant striving for union recognition through
agreement. In many cases employees have left their employ-
ment and struck solely because of the employer's refusal to
enter into a collective agreement. An objective which has been
so bitterly contested by employer and employee, that has been
the cause of many long and costly strikes, must be evaluated in
the light of the conflict it has produced.
We concluded that the respondent in that case had engaged in an
unfair labor practice within the meaning of Section 8 (5) of the
Act by refusing to embody understandings in any kind of an agree-
ment with the union.
We reaffirm our decision in the St. Joseph case, and hold that an
essential element of the collective bargaining process is a willing-
ness to embody the results of negotiations in some kind of an agree-
ment with the representatives of the employees. In the present case,
the facts raise the further issue of whether the respondent, under
the circumstances, violated Section 8 (5) by refusing to enter into a
signed agreement.
In its brief, the respondent contends that it "bargained to an im-
passe on the question of signing." This contention can only be valid
if the "question of signing" was, under the circumstances, a subject
matter for negotiations-in other words, a concession which the
respondent could withhold in consonance with its duty to bargain
collectively in good-faith. We do not believe that to have been the
case.
At the hearing considerable testimony was taken as to the practice
of "collective bargaining" in the past and in the present. David
J. Saposs, Chief Economist for the Board, testified for the Board,
and Professor Raleigh W. Stone, Associate Professor of Industrial
800 NATIONAL LABOR RELATIONS BOARD
Relations at the University of Chicago, testified for the respondent.
A great deal of documentary evidence was introduced in connection
with this testimony.
On most of the factual material, these two witnesses were in snb-
stantial agreement. Mr. Saposs testified that the signed agreement
was the prevailing practice in collective bargaining today, and a large
number of exhibits were introduced showing the extent to which
signed agreements have been entered into in various fields of indus-
try. Professor Stone did not seek to deny that signed agreements
are in widespread use today. He was able to cite only one instance
of an oral agreement between a union and an employer covering a
large plant. He conceded the accuracy of Mr. Saposs' testimony
that signed agreements today include a wide variety of detailed pro-
visions on such matters as wages, hours, compensation for overtime,
holidays, vacations, apprenticeship, seniority, procedure in lay-offs,
health and safety regulations, machinery for the adjustment of
grievances, and provisions for duration and renewal of agreements.
Highly significant is the testimony given by Mr. Saposs and Pro-
fessor Stone on the reasons for employers declining to enter into
signed agreements. Mr. Saposs testified that while there have been
some instances of unions not pressing for signed agreements, due to
the fact that only a few employees were involved or that the employer's
customers were so violently anti-union that a secret arrangement
was preferable, the employers who refuse to sign agreements
are generally those who have traditionally fought unionization
at every turn and who have fostered company-dominated unions.
Their refusal to enter into signed agreements he ascribed to an un-
willingness to deal with bona fide unions at all, and to a feeling that
if they can withhold signed agreements, their desire to render unions
ineffective can better be accomplished. He also pointed out that such
employers very often welcome opportunities to sign agreements with,
company-dominated labor organizations.
Professor Stone largely concurred in this testimony. He con-
ceded that the steel industry has been traditionally anti-union and
that employers have been swayed by the feeling that a refusal to
enter signed agreements may render unions ineffectual. However,
he insisted that an employer is nevertheless bargaining in good faith
when he refuses to enter a signed agreement, even though his pri-
mary reason may be a fear of lending prestige to the union. In this
connection, it is interesting to note his further testimony that he
would regard an employer as bargaining in good faith even though
he refused to negotiate with the representatives chosen by his em-
rloyees, provided he felt that the representatives were not proper
persons with whom to deal. He made one exception in the case of
representatives certified by the Board.
DECISIONS AND ORDERS 801
In the circumstances shown in this case , we cannot find any justi-
fication for saying that while the respondent was obligated to em-
body terms in some sort of an agreement , it was privileged to with-
hold a signed agreement . We take judicial notice of the fact, which
is also shown by the record , that in circumstances like those here in-
volved-when the bargaining is directed toward a comprehensive set
of terms covering labor relations in a large industrial plant-the pre-
vailing practice is reduction of such terms to a signed collective agree-
ment. We do not say that an oral agreement under such circum-
stances would be invalid , if acceptable to both parties , but the dif-
ficulties inherent in an oral agreement in a situation of this sort are
manifest . An attempt to rely on memory alone would undoubtedly
pave the way for prolonged haggling over what actually was agreed
to. It seems clear to us that conformance in good faith to the pro-
cedure of collective bargaining requires a willingness to enter into a
signed agreement under circumstances like these . The great steel
strikes of the summer of 1937 , of which the strike of the respondent's
employees was a part , bear testimony to the fact that negotiation
without a willingness to enter a signed agreement under such cir-
cumstances is regarded by workers as an empty procedure . Unions
justifiably feel that full recognition of their status as collective bar-
gaining agencies on an equal footing with employers cannot be at-
tained if they are denied the type of contractual relationships which
characterize ordinary business dealings. In insisting on a signed agree-
ment, the S. W. O. C. was merely asking what any prudent business-
man would expect as a matter of course from those with whom he
deals. The respondent , in dealing with a large automotive concern,
would be expected to refrain from the obvious impropriety of re-
buffing an attempt to enter into a signed agreement embodying terms
of any magnitude and complexity . Such conduct is simply not en-
gaged in between concerns dealing as equals. Obviously the re-
spondent regards dealing with a union as another matter . It seeks
to yield as little as possible to the S. W. O. C. demand for recogni-
tion, and that grudgingly . We see in the respondent 's conduct noth-
ing calculated to encourage in unions a sense of responsibility, no ac-
ceptance of the S. W. O. C . as a party with equal dignity at the
conference table.
That the respondent 's rejection of the possibility of a signed agree-
ment was not in good faith but was based fundamentally on anti-
union bias is' made clear by the reasons which it brings forward as
having motivated its refusal to enter into a signed agreement.
Briefly, these purported reasons were as follows : A signed agreement
could coerce employees into joining the S . W. O. C., would lead
to the closed shop and check -off, and would undermine morale and
efficiency in the plant ; signed contracts with the S . W. O. C.' have
802 NATIONAL LABOR RELATIONS BOARD
not brought industrial peace, are not necessary to prevent misunder-
standing , and are not required by the Act; the S. W. 0. C. is an
irresponsible organization.
We see no compelling force in any of these suggested reasons. The
assertion that the S. W. 0. C. is an unfit agency with which'to enter
into contractual relations appears specious in view of that organiza-
tion's well-established position in the steel industry. However, we
refrain from looking into the question of whether they are based on
credible facts. Assuming them to have been the actual reasons moti-
vating the respondent's decision, we do not feel that they afford any
basis for adopting the respondent's contention that it was justified
in its action. If the alleged irresponsibility of the S. W. 0. C. be a
valid reason for declining to enter a signed agreement, it would
similarly be a valid reason for refusing to deal with the S. W. 0. C.
at all. In this general connection, we may cite a portion of the de-
cision of the United States Circuit Court of Appeals for the Second
Circuit in the Remington-Rand case, as follows :
There remains only the defense raised by the respondent that
the union has disqualified itself by its own misconduct from ap-
pealing to the Board . . . though the union may have mis-
conducted itself, it has a locus poenitentiae ; if it offers in good
,faith to treat, the employer may not refuse because of its past
sins.36
While the facts in the Remington-Rand case were not the same as
those before us here, the above language is generally applicable. An
employer is not privileged to deny collective bargaining to his em-
ployees merely, because he views the union which represents them as
irresponsible; and the alleged irresponsibility is likewise irrelevant
in determining whether the respondent was under an obligation to
embody understandings in a signed agreement.
The other reasons are subject to similar treatment. They all reveal
the respondent's distaste for having in its plants an effective labor
organization. The allegations that a signed agreement would lead to
a closed shop, the check-off, or to loss of morale are mere speculations,
without relevance to the question before us. In considering whether
or not the respondent was under an obligation to embody understand-
ings in a signed agreement, we deem it irrelevant that the respondent
visualizes results obnoxious to it if it enters into collective bargain-
ing-so defined. Implicit in all the reasons given is an undercurrent of
fear that a signed agreement would be used as an organizational aid.
Wilfred Sykes, assistant to the president of the respondent, testified
that "we did not feel that we should do anything that could,be taken
as an endorsement" of the S. W. 0. C. It is evident from the re-
8National Labor Relations Board v. Remington -Rand, Inc., 94 F. (2d) 862.
DECISIONS AND ORDERS 803
spondent 's own argument that the underlying reason for its refusal
to enter into a signed agreement was that it was anxious to forestall
the organization of its employees into the S. W. O. C.
Our interpretation of Section 8 (5), as applied to the facts in this
case , may be summed up as follows :
Section 8 ( 5) of the Act requires an employer to accept the proce-
dure of collective bargaining in good faith , and the nature of this
obligation must be determined in the light of the prevailing practice
of collective bargaining and the spirit and purpose of the Act as a
means of avoiding industrial strife. We regard it as well settled that
collective bargaining in good faith requires a willingness to consum-
mate the negotiations, if successful, by entering into some sort of an
agreement. And Ave hold that under circumstances such as are pre-
sented here, it is the employer's obligation to accede to a request that
understandings reached be embodied in a signed agreement. The
present controversy is projected on the background of a long struggle
by labor organizations to attain full recognition of their right to
recognition as collective bargaining agencies with a dignity equal to
that of the employers with whom they deal. We take judicial notice
of the fact that today thousands of employers have accorded unions
their right to normal contractual relationships, and that, as is shown
by the record, the signed collective bargaining agreement is the pre-
vailing practice. From the viewpoint of harmonious and cooperative
labor relations , as well as of sensible business practice , the importance
of embodying understandings in signed agreements is obvious.
Whether there may be, in some future case, circumstances indicating
that the employer there involved may under the Act decline to em-
body understandings in a signed agreement , we need not here decide.
It is certain that we are not confronted with such circumstances in
this case . To say that there is something impracticable about a signed
collective bargaining agreement with a large steel manufacturing
concern, justifying an exception from the general practice , would be
to shut our eyes to facts of common knowledge concerning recent
labor history. As a matter of fact, the reasons advanced by the re-
spondent , considered in connection with the factual background of the
current dispute , indicate clearly that the respondent was and is
motivated in its action by a desire to check the progress of the S.
W. O. C. in its plants.
We find that the respondent has refused to bargain collectively
with the S . W. O. C. as the exclusive representative of its employees
in an appropriate unit, and has thereby engaged in an unfair labor
practice within the meaning of Section 8 ( 5) of the Act. By such
refusal the respondent also interfered with, restrained , and coerced
its employees in the exercise of the rights guaranteed by Section 7 of
134068-39-vol ix-52
804 NATIONAL LABOR RELATIONS BOARD
the Act, and engaged in an unfair labor practice within the meaning
of Section 8 (1) of the Act.
B. Steel Workers' Independent Union, Inc.
The complaint alleges that the respondent fostered, promoted and
encouraged the formation and growth of the Independent, dominated
and interfered with the administration thereof, and contributed
financial and other support thereto. The respondent's answer denied
these allegations.
1. Background : the representation plans
The appearance and activities of the Independent cannot be in-
telligently considered without some understanding of the Employee
Representation Plans which were in operation in the respondent's
plants from June 1933 until April 1937.
Some time in June 1933 Employee Representation Plans were in-
stituted by the respondent both at the Chicago Heights plant and
at the Indiana Harbor plant. Apparently set up in purported com-
pliance with the requirements of Section 7 (a) of the National Indus-
trial Recovery Act, these Plans were substantially identical. In each
case officials of the respondent called in a group of employees and
advised them of the management's willingness to have representation
plans set up. The men were told to nominate representatives, which
they did. The Plans themselves were drawn up by the respondent,
printed, and distributed to employees. Printed copies of the Plans,
which were introduced into evidence, reveal that up until the time of
the decisions of the Supreme Court in April 1937 upholding the con-
stitutionality of the Act, the respondent's employees were enjoying
the dubious benefits of out-and-out company-dominated unions. We
need not dwell at undue length on the nature of the Plans, which
followed a familiar pattern.
Representatives, elected from various departments, comprised a
Workmen's Council. The respondent undertook to afford "the nec-
essary facilities for the proper carrying out of the voting." Griev-
ances were to be referred ato successively higher officials of the re-
spondent when necessary, but there was no provision for arbitration
in, case these successive appeals were in vain. The Representatives
under the Plans were paid by the respondent for their services as
such.'' There were no dues. Certain changes were effectuated prior
to the passage of the Act, but no substantial alteration in the set-up
occurred before April 20, 1937. As will appear presently, the re-
spondent quickly acknowledged the illegitimacy of the Plans after
the Supreme Court decisions.
$'' Louis Gromola, a former Representative at the Chicago Heights plant, testified as to
these payments : "Well, the way I considered it, it was sort of graft . It was easy money."
DECISIONS AND ORDERS 805
On April 20, 1937, a significant meeting took place. All the Rep-
resentatives under the Plan at Indiana Harbor attended, bringing
with them some other workers. Walsh, works manager of the Indi-
ana Harbor plant, DeHoll, assistant works manager, and Roulfs,
superintendent of industrial relations at Indiana Harbor, were pres-
ent on behalf of the respondent, as was Ballard, the respondent's
attorney. The group assembled in the meeting room in the plant
which had been used for the Council meetings under the Plan.
Respondent Exhibit No. 22 is a copy of a transcript of the pro-
ceedings at this meeting, prepared for the respondent by a stenogra-
pher who was present. The document throws considerable light on
this phase of the case.
DeHoll opened the meeting by pointing out to the employees that
the action of the Supreme Court in upholding the Act had rendered
illegal the relationship between the Plan and the respondent. He
then introduced Ballard, who discussed the various provisions of
the Act and then submitted himself to questioning. The question-
ing was largely concerned with the modus operandi by which the
Representatives might, within the law, set up an inside organization.
If the Representatives needed any prodding toward the formation of
a successor to the Representation Plan, it was supplied by DeHoll's
comment that "if certain men or groups of men feel that it is to
the advantage of our personnel in general to form an organization
among our men with which we can collectively bargain, within the
terms of the law, it is up to them to start forming such organiza-
tion." It was clear from the surrounding circumstances that DeHoll
was referring not to the S. W. O. C., but rather to an inside organiza-
tion. The Representatives present took up this cue, and plied Ballard
with questions relating to the technique of wiping out the stigma of
company domination and continuing on substantially as before. Re-
ferring to a set of the bylaws of the Representation Plan, which
he had in his brief case, Ballard observed : "I don't think there is
anything in here that you can't do if you want to, if you do it
yourself." He further warned: "You have to do a careful job and
take it outside and start all over." Questions and answers referred
to the possible formation of a "representative association", "em-
ployees' association." One of the employees, Meade, keynoted the
discussion as follows :
It seems to me it would be a legal thing to have a group of
shop stewards, you might call them. We may have a shower
bath that is out of adjustment and we'may need some new lockers
and we might have improper lighting conditions on a walkway
in the mill, that might be taken up with shop stewards without
interfering with hours, wages and such things as that . . . Now,
806 NATIONAL LABOR RELATIONS BOARD
the way. I look at the thing, it may be wrong, I don't know,,
but as far as wages, hours, and agreements, etc., are concerned,
it begins to look like Congress will set up another NRA and
they will take care of it and the least employees say about that
the better. We should have an organization that is going to
continue to function along the lines of this present employees rep-
resentative association to take care of our 11,500 employees we
have here.
Immediately following the adjournment of the meeting, a group
of the Representatives under the Plan congregated to consider ways
and means of setting up the successor organization. Albert Smith,
who until that time had been Chairman under the Representation
Plan, presided. Jack Greenberg, a former Representative, averred
that "we're not licked yet," and urged the others not to "let a good
thing like this drop." Henry Kutzer, a former Representative who
later joined the S. W. 0. C., registered his dissent, pointing out that
the employees might well say : "That's nothing but a company
union, anyway, with all the Representatives at the head of it."
Daniel Callis, an assistant foreman in the pipe shop at Indiana
Harbor, and a former Representative, suggested that they meet at
his home that evening in order to map out a course of action. Sev-
eral such meetings were held, and the Independent finally emerged.
The former Representatives under the Plan carried the brunt of
setting it up, although one McDevitt, an employee who had not
been a Representative, was brought in to act as president. The
Independent was incorporated. No mass meetings were held. Callis
conceded at the hearing that "the primary purpose of forming the
Independent was to fight the C. I. 0."
During the strike, which began on May 26, 1937, the Independent
became the spearhead of a back-to-work movement.
With these events in mind, we turn to the acts of favoritism and
solicitation by supervisory officials on behalf of the Independent, acts
which went hand in hand with anti-S. W. 0. C. activity by
supervisors.
Nick Kosich, an employee in the galvanizing department at the
Indiana Harbor works, testified that Earl Baughamer, his general
foreman, approached him during the strike and urged him to join
the Independent in order to effectuate the back-to-work movement.
Kosich tentatively yielded to Baughamer's exhortations, swayed pri-
marily by the latter's repeated emphasis on the fact that joining the
Independent was a step which could be taken free of charge. Kosich
testified that he commented : "Might as well, if it don't cost nothing,
maybe don't worth nothing neither." It happened that Kosich, upon
further reflection, did not join the Independent, however. Baug-
DECISIONS AND ORDERS 807
Hamer testified at the hearing and did not deny having attempted
to enroll Kosich in the Independent ranks, although he denied hav-
ing pressed the point with any particular vigor. On cross-examina-
tion, it was revealed that Baughamer 's pro-Independent activities
were not limited to the Kosich incident. He admitted having ap-
proached at least one other employee relative to joining the Inde-
pendent, and further testified that he had on occasion accompanied
Harold Elder and Robert Smith , both foremen in the pickling de-
partment , while they engaged in organizational activities on behalf
of the Independent during the strike. It is significant that the
respondent, while attempting to disclaim responsibility for the ac-
tions of most of the supervisory officials on the ground that they are
not "management foremen ," concedes that Baughamer is within the
latter classification.
Arthur Schroeder, electrical foreman in the cold strip and tin
mill, who is admitted by the respondent to be a "management fore-
man," testified on cross-examination that he, too, had talked to vari-
ous employees about joining the Independent . These discussions
occurred at his home , at the employees ' homes, and at beach parties.
One of the most zealous of the Independent adherents among the
supervisory officials was William Jerome, finishing end foreman in
the 14-inch mill at Indiana Harbor. The respondent concedes his
status as "management foreman." Jerome, called as a witness for
the respondent, openly admitted that he had been an enthusiastic
proponent of the Independent . During the strike, he canvassed
from 75 to 100 employees at their homes , endeavouring to enlist
them in the Independent . He was in active contact with the Inde-
pendent headquarters during this period, getting the names and
addresses of employees therefrom . He was himself a member of the
Independent.
Previous to the strike , supervisory officials had already busied
themselves with the task of promoting the Independent. A sig-
nificant incident occurred about a week before the strike began.
Charles Nalon, track foreman in the new construction department,
secured a number of Independent cards from Mahoney, a foreman
in the same department . Mahoney was a member of the Indepen-
dent. Nalon then distributed the cards to some of the men in the
department . Valdez, one of the men under him , testified that he
berated Nalon for promoting the Independent in that fashion, and
called Nalon's attention to the illegality of his activities . Valdez
further testified that Nalon replied : "Well, I cannot help it because
they send them to me from the office, I have got to do what they tell
me to do." Nalon testified and offered no rebuttal as to this conver-
sation. The respondent classifies Nalon as a "management
foreman."
808 NATIONAL LABOR RELATIONS BOARD
Yet another "management foreman" who assisted in pushing the
Independent was Clyde Chrisle, general labor foreman in the coke
department at Indiana Harbor. Apoliano Lara, a laborer in that
department, testified that some time before the strike Chrisle had
advised him that if he wanted to join the Independent, some appli-
cation cards were on Chrisle's desk. He also testified that Chrisle
supplemented this suggestion with a denunciation of the C. I. 0.,
averring that men joining it were wasting their money. Chrisle
testified and did not deny the incident, admitting that he had ex-
pressed to Lara his feeling that paying dues to the C. I. 0. was a
waste of money. Chrisle went on to testify that an Independent
organizer, whose name he did not know, had left a number of Inde-
pendent cards in a drawer in his (Chrisle's) desk. Chrisle had,
upon the organizer's allegation that he wanted to line up the men
in the department for the Independent, given his approval by telling
him he could ask the men then and there.
There are a number of instances, shown by the testimony of wit-
nesses called by the Board, of solicitation for the Independent by
supervisory officials such as assistant foremen or leaders. For ex-
ample, Dario Corona, a "leader" in the open hearth No. 2 depart-
ment at Indiana Harbor, freely admitted attempting to enroll Leyva,
a laborer under him, in the Independent. Likewise, Charles Boyd,
assistant turn foreman in the pickle house, cold strip mill, with 19
men working under him, testified that he was a member of the
Independent and that he was active in rounding up support for
the back-to-work movement by soliciting members for the Inde-
pendent. The respondent denies that any but "management fore-
men" are true representatives of the management, and does not
deem Corona or Boyd to be within this exclusive classification. As
we have pointed out in Section III-A-1 above, assistant foremen
and leaders, although having no outright power to hire and dis-
charge, do have supervisory authority over substantial groups of
men, and are to be regarded as representatives of the management;
the distinction set up by the respondent between "management" and
"nonmanagement" supervisors is insubstantial.
The evidence also shows that solicitation on behalf of the Inde-
pendent prior to the strike was conducted in the plant, during work-
ing hours, on a large scale. Jack Greenberg, a former Representative
under the Representation Plans, admitted that he spent several days
before the strike going through the plant at Indiana Harbor and
signing up men in the Independent. Arthur Christopher, also an
ex-Representative, likewise admitted that he solicited widely in the
plant, during working hours, for the Independent. The testimony
of many other witnesses at the hearing shows that these organiza-
DECISIONS AND ORDERS 809
tional efforts during working hours were wide-spread. Joseph An-
drews and Joseph Cutting, two other former Representatives, were
also active in soliciting for the Independent in the plant before
the strike.
The respondent put on the stand certain foremen who had been
identified by Board witnesses as present when some of this solici-
tation occurred, and these foremen denied knowledge of the solicita-
tion, or alleged that they had warned the men against the soliciting
in the plant. We need not decide whether this testimony is credible,
as to the instances of solicitation cited by the Board's witnesses. The
testimony of the respondent's own witnesses, employees called to
the stand to disprove the S. W. O. C. majority, establishes con-
clusively that solicitation for the Independent in the plant was so
wide-spread that it could not have been carried on as it was without
the at least tacit assent of supervisory officials. Furthermore, the
testimony of the respondent's witnesses removes all doubt as to
solicitation for the Independent, on a broad scale, by supervisory
officials themselves. We will cite a few examples of the testimony
elicited on cross-examination of the respondent's witnesses.
Frank Vojvoda, a worker in the galvanizing department at the
Indiana Harbor plant, testified : "Boss tell me go to Independent, all
work over there, and so got I join to Independent." Although he
did not know the last name of his boss, whom he referred to as
"Harold", he was very clear that this person was "the regular boss",
"the big foreman". He testified further : "I think if boss tell me,
that would be good for me, because I am poor worker down there.
I was scared I going to lose job, yes."
Alfred Owens testified that his "boss" gave him an Independent
card, inquiring as to whether he wanted to join "a good union".
He further testified that his boss had in his hand a sizeable stack
of Independent cards with which he signed up "our whole crew".
Wilbur Hasse, while at work in the machine shop one day, was
given an Independent card by one Marvin Carrier, who is a ma-
chinist in the same department as Hasse. Hasse testified that
Carrier spent about 3 days passing out cards to the various workers
in the department; Hasse estimated that he himself saw Carrier
solicit about half of the 140 workers in the department. William
Queer is the-foreman in that department; Hasse testified that Queer
was present in the department during these 3 days, and that Queer
could not have helped seeing the cards being passed around. There
is no evidence that Carrier was in any way impeded in his zealous
organizational efforts on company time. Queer testified that he had
seen no solicitation in the plant; under the circumstances, we do
not regard the denial as credible.
810 NATIONAL LABOR RELATIONS BOARD
Edward Williams testified that lie signed an Independent card
in the storeroom at the Indiana Harbor plant. The card was given
to him by his foreman, Thomas Carlan, who had with him a stack
of such cards about half an inch thick. John Gordon, a carpenter,
testified that his foreman gave him an Independent card to sign,
and that such cards were on the foreman's desk for several days.
William Posthumus, a laborer in the-new construction department
at Indiana Harbor, testified that a pipe fitter by the name of Col-
lins canvassed the men at work in his department for an entire
week prior to the strike. The following portion of his testimony,
given on cross-examination, is revealing :
Q. And in your own mind likewise did you think that the
company was for or against the Independent union?
A. I think they was for the Independent union.
Q. That was pretty clear, was it not?
A. Yes.
Q. It was especially clear, was it not, from the fact that this
pipe fitter went around
A. Yes.
Q. (Continuing.) During the entire week?
A. Yes.
Q. With everybody looking on?
A. Yes.
Q. Your foreman saw him soliciting members for the Inde-
pendent, did he not?
A. Yes, he did, yes, sir.
Q. And the superintendent saw him soliciting members?
A. Yes.
Q. Was he reprimanded by either one of them?
A. No, he wasn't.
The foreman in question was Harry Souder, and the superintendent
was named McCluskey.
Gavina Trinidad, another laborer at Indiana Harbor, testified as
follows on direct examination by counsel for the respondent :
I want to be in the Independent because my foreman told me
if I want to be on my work, I have to be on the Independent.
Cody Tarter, a steel tracer in the Indiana Harbor plant , testified
as follows on cross-examination :
Q. Didn't you see Independent cards being passed around in
the mill quite widely and in the presence of the foreman?
A. I did.
DECISIONS AND ORDERS 811
Q. And didn't that mean to you that management was in
favor of the Independent.
A. I think so.
Q. Didn't you think of the Independent in terms of a company
union?
A. They were more so than the C. I. 0.
Q. Much more so, were they not?
A. Yes, sir.
Trial Examiner WOOD. What do you mean by a company
union, Tarter?
The WITNESS. Well, I think it would be one that was backed
by the company.
Audrey Cummings, a welder, testified that he was given an Inde-
pendent card by a foreman, one "Scotty." This foreman had been
present while a week-long campaign for the Independent took place
in the welding department. Maxwell Moffitt, locomotive crane oper-
ator, testified that William Sterns, a foreman of the mechanics in
the car shop, gave him an Independent card to sign.
Numerous other employees, also called as witnesses by the re-
spondent, testified similarly on cross-examination that they had been
solicited by persons in supervisory positions, or that they had ob-
served open solicitation for the Independent in the plant.
These acts of open favoritism had their natural effect. A large
number of the respondent's witnesses testified variously on cross-
examination that they thought the Independent was a company
union, was backed by the company, favored by the, company over the
C. I. 0., that they joined the Independent so that they would stand
in well with the company, and so on. We need not go into a de-
tailed exposition of that testimony. The record is replete with it.
It is true that such testimony is not binding on the respondent, but
it is relevant, we think, as revealing the effect of the activities for
which the respondent was indubitably responsible.
Along with this display of favoritism for the Independent went
numerous clear indications of the hostility of supervisory officials
toward the S. W. O. C. Melvin Spangler, a feeder in the cold strip
department, was engaged in conversation during the strike by John
Evans, mill foreman in that department. Evans' own testimony reveals
that he questioned Spangler as to whether he was a member of the
C. I. 0., and as to his activities on the picket line.. He then asked
Spangler when he was going back to work. Upon Spangler's aver-
ment that he would return to his job after the strike was over, Evans
warned him that he might not have a job after the strike. William
Tracy, a worker in the boiler room, was reminded by William Perry,
812 NATIONAL LABOR RELATIONS BOARD
superintendent of the power department, that "after all the company
gives you your bread and butter." This was after Tracy had told
him that he was a member of the C. I. O. and was going to "stick
with them." The strike was on at the time. Perry testified, and did
not deny the statement. John Hayes, an operating foreman in the
power department, freely admitted that he had discussed the S. W.
0. C. with many of the 120 men who worked under him, and that
he had fully conveyed to them his dislike for the organization.
The record also reveals other incidents of anti-S. W. O. C. state-
ments by persons in supervisory positions. The natural effect of
such pronouncements was to discourage membership in the S. W. O. C.,
and these incidents likewise lent added significance to the pro-Inde-
pendent activities discussed above.
The respondent contends that it cannot be held responsible for the
unauthorized acts of its foremen, and stresses its posted notices and
oral instructions setting forth a neutral attitude toward organizational
activities. There are several fallacies in this contention. In the first
place, the respondent must realize that employees customarily give
small credence to general notices of purported neutrality when con-
fronted with unmistakable acts of favoritism on the part of the repre-
sentatives of the management with whom they have closest contact.
Secondly, it is without significance that in such circumstances the high
executives of a company may maintain an impartial attitude. Fore-
men are company representatives as well; in fact, their acts may well
have a greater effect on employees than posted generalities by high
executives. If some foremen engage in discriminatory conduct, it is
irrelevant that other foremen or higher officials have kept aloof. The
respondent is responsible for the acts of its representatives, for the
effect on employees of coercive acts of foremen is telling, whether or
not the acts have specific sanction from above. To remove the effect
of such discriminatory tactics, vigorous remedial measures, clearly
brought to the attention of the employees, are obviously required.
We see in this record no evidence of any such effective action to offset
the pro-Independent campaign of supervisory officials. Finally, de-
spite the statements of company policy, we cannot overlook uncontra-
dicted evidence belying the respondent's claim that its higher officials
maintained the neutral attitude ascribed to them.
Serafino Formentini, an employee of the respondent and recording
secretary of Lodge 64 at Chicago Heights, testified that in August
1936 Strauss, a vice president of the respondent, called together several
departments at the Chicago Heights plant and read them a letter from
P. D. Block, president of the respondent, to the effect that the re-
spondent was opposed to unionization and would rather close down
than recognize a union. The letter was not,, introduced into evidence,
so we do not have the precise verbiage before us, but it was clearly
DECISIONS AND ORDERS 813
within the respondent's power to contradict this testimony if it was
erroneous. No such contradiction was offered.
James H. Walsh, works manager of the Indiana Harbor plant, and
the official who represented the respondent in the conferences with the
S. W. 0. C. representatives, is clearly a high executive of the respond-
ent. Early in April 1937 he called in William Maihofer, president
of one of the lodges in the Indiana Harbor plant, to his office. After
assuring Maihofer that he ww ould meet with the S. W. 0. C. committee
as had been requested in a letter, Walsh engaged him in a general
discussion of the S. W. 0. C. Maihofer testified that Walsh began :
"Now, Maihofer, just between you and I, just why do these men join
the union?" After Maihofer cited as reasons the desire for job security
and better wages and working conditions, Walsh went on, according to
Maihofer's testimony, and averred that the union organizers were out-
siders looking toward their own interests only, indifferent toward the
welfare of the men in the plant, and that the respondent's beneficent
tendencies toward the men rendered superfluous any union activity.
Walsh testified as to this conversation, and conceded that he questioned
Maihofer as to "just why he would join an outside union as against
joining something in his own plant". Walsh explained his question-
ing on the ground that he wanted to know what was wrong with con-
ditions in the plant that would "make a young man leave and join up
with an organization, a labor union outside of the plant when there
was a labor union or representation plan inside the plant". From the
above testimony, we are convinced that Walsh made known to Mai-
hofer his distaste for "outside" unions as compared to "inside"
organizations.
John Davila, a laborer at. the Indiana Harbor plant, was called to
the main office late in November 1936 by Roulfs, the superintendent
in charge of industrial relations. Davila is a Mexican. Roulfs in-
formed him that the respondent wanted to form a Mexican band from
the men in the plant, and asked him if he would participate. Upon
Davila's protestation that he was devoid of musical skill, Roulfs turned
to the subject of membership in the S. W. 0. C., asking Davila if he
belonged to the Union. Davila said that he did, whereupon Roulfs
averred that the S. W. 0. C. was "no good", and pointed out that in
case a strike should eventuate, the respondent could shut down the
mill and weather the conflict more easily than could the strikers. He
went on and inquired as to how many members there were in the
S. W. 0. C. Unable to elicit any information from Davila on that
score, he terminated the interview. The respondent did not controvert
Davila's testimony.
It is true that these latter incidents occurred before the Independ-
ent appeared on the scene. However, their effect persisted, and as
814
NATIONAL LABOR RELATIONS BOARD
a matter of fact, the respondent takes the position that its policies
continued unchanged from the time these events occurred.
We conclude from the above facts that high executives of the
respondent not only did not maintain a neutral attitude, but that they
communicated to employees their anti-union views.
Upon all the evidence, we find it impossible to conclude that the
Independent was free from the sponsorship of the respondent. It
emerged from the Representation Plans, which were patently illegal.
The Representatives under the Plans took the initiative in setting
up the Independent, spurred on by the suggestion of DeHoll that
it was up to the men to form an inside organization if they so
desired. Wide-spread solicitation in the plant, during working
hours, was carried on with impunity. Admittedly conceived as a
buffer to the S. W. 0. C. organizational drive, the Independent blos-
somed forth during the strike as a back-to-work movement, aligning
itself completely with the respondent's desires. And while the super-
visory officials of the respondent were making clear their antagonism
toward the S. W. 0. C. on the one hand, management representatives
played a significant role in the campaign for membership in the
Independent. The effect of all this was clearly revealed in the testi-
mony of many of the respondent's own witnesses, who stated that
they regarded the Independent as company-sponsored.
We find that the respondent has dominated and interfered with
the formation and administration of the Independent, and has con-
tributed support to it, and has thereby engaged in unfair labor prac-
tices within the meaning of Section 8 (2) of the Act. We also find
that by such illegal sponsorship of the Independent, coupled with the
anti-S. W. 0. C. activities discussed above, the respondent has inter-
fered with, restrained and coerced its employees in the exercise of
the rights guaranteed by Section 7 of the Act, and has thereby
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
THE REMEDY
The respondent having engaged in unfair labor practices, we shall
order the respondent to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act and
DECISIONS AND ORDERS 815
to restore as nearly as possible the situation that existed prior to the
commission of the unfair labor practices.
The respondent has unlawfully sponsored and supported the Inde-
pendent. That organization cannot, in view of the circumstances,
operate as a true representative of the employees, and we shall order
it disestablished. We now come to the appropriate remedy for the
respondent's refusal to bargain collectively.
The respondent sought to establish, through two offers of proof,
that after June 8, 1937, the date of the unlawful refusal to bargain,
the S. W. 0. C. lost its majority. If we are to administer the Act
properly, we cannot attach significance to the offers of proof thus
brought forward. In the first place, the offers do not show on their
face any sufficient ground for us to conclude that the representative
authority of the S. W. 0. C. was lost. Thus, one offer of proof
was designed to show that 225 employees who were represented by
the S. W. 0. C. on June 8 thereafter died or left the company's
employ. As we have found above, the S. W. 0. C.'s majority on
June 8 was well in excess of 446, so that this offer would not suffice
to overturn the majority. The second offer was designed to prove
that 1,218 employees who were represented by the S. W. 0. C. on
June 8 thereafter voluntarily joined the Independent and wished
no further connection with the S. W. 0. C. As we have said above,
we cannot consider designations of a company-dominated organiza-
tion as constituting valid defections from the S. W. 0. C. To do
so would be to allow the respondent to evade its duty under Section
8 (5) by the simple expedient of violating Section 8 (2). Accord-
ingly, this offer does not show on its face any facts which would
affect our order.
But our order is to be based not alone upon the foregoing con-
siderations. Section 10 (c) of the Act authorizes the Board, upon
finding that a person "has engaged in or is engaging in" an unfair
labor practice, to order such person "to take such affirmative ac-
tion . . . as will effectuate the policies of this Act." This section is
designed to enable the Board to restore, as nearly as possible, the
status quo had the wrongs not been committed. The necessary delays
incident to the adjudication of a dispute have postponed the Board's
order until a time considerably subsequent to the original wrongful
refusal to bargain. The refusal to bargain collectively disrupts the
morale of the men, has a deterring effect upon the organizational
activity of the union and a discouraging influence on members al-
ready gained which tends to induce them to drop from the ranks. In
fact, we have seen that forestalling the organization of its employees
into the S. W. 0. C. was the primary purpose of the respondent in
its refusal to enter into a signed agreement. If an order to bargain
816 NATIONAL LABOR RELATIONS BOARD
collectively cannot be deemed an appropriate remedy for the refusal
to bargain collectively unless the S. W. O. C.'s majority is kept
intact until the Board can issue a decision, the plain policy and in-
tent of the Act will be defeated. The respondent would be permitted
further to evade the obligation of Section 8 (5) by profiting from
the discouraging effects of its already accomplished violation of that
very obligation. We cannot concede the validity of such a doctrine
of futility, and we hold that to effectuate the policies of the Act, the
respondent's refusal to bargain must be remedied by an order to
bargain, based on the majority obtaining on the date of the refusal
to bargain .311 In addition, since the principal issue in this case was
the respondent's refusal to enter into a signed agreement regardless
of the terms, and since we have found that this constituted a refusal
to bargain collectively, we shall address our order specifically to the
wrong sought to be remedied, and order the respondent to embody
any understandings reached in a signed agreement upon request.
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee and Steel Workers' In-
dependent Union, Inc., are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of, and contributing support to the Steel
Workers' Independent Union, Inc., has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of
the Act.
3. The production, maintenance, and transportation workers em-
ployed by the respondent at its Indiana Harbor and Chicago Heights
plants, excluding supervisory and clerical employees, managerial and
office help, timekeepers, technical engineers, technicians, draftsmen,
chemists, watchmen, nurses, truck drivers and bricklayers, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
4. Steel Workers Organizing Committee was on June 8, 1937, and
at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
5. By refusing and continuing to refuse to bargain collectively
with Steel Workers Organizing Committee as the exclusive repre-
sentative of the employees in the above-stated unit, the respondent
'"A similar conclusion has been reached in many prior decisions of the Board. See,
for example, Matter of Bradford Dyeing Association and Textile Workers Organizing
Committee, 4 N L R B 604 ; Matter of Somerset Shoe Company and United Shoe Workers
of America , 5 N. L R B. 486; Matter of Burnside Steel Foundry Company and Amalga-
mated Association of Iron, Steel and Tin Workers of North America , 7 N L R. B. 714
DECISIONS AND ORDERS 817
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
6. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the re-
spondent, Inland Steel Company, Chicago, Illinois, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the ad-
ministration of Steel Workers' Independent Union, Inc., or with
the formation or administration of any other labor organization of
its employees, and from contributing support to Steel Workers' In-
dependent Union, Inc., or any other labor organization of its
employees;
(b) From refusing to bargain collectively with Steel Workers
Organizing Committee as the exclusive representative of the pro-
duction, maintenance, and transportation workers employed at its
Indiana Harbor and Chicago Heights plants, excluding supervisory
and clerical employees, managerial and office help, timekeepers, tech-
nical engineers, technicians, draftsmen, chemists, watchmen, nurses,
truck drivers and bricklayers;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from Steel Workers' Independent
Union, Inc., as a representative of any of its employees for the pur-
poses of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or other con-
ditions of employment, and completely disestablish Steel Workers'
Independent Union, Inc., as such representative;
818 NATIONAL LABOR RELATIONS BOARD
(b) Upon request, bargain collectively with Steel Workers Organ-
izing Committee as the exclusive representative of the production,
maintenance, and transportation workers employed at its Indiana
Harbor and Chicago Heights plants, excluding supervisory and
clerical employees, managerial and office help, timekeepers, tech-
nical engineers, technicians, draftsmen, chemists, watchmen, nurses,
truck drivers and bricklayers, in respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if
an understanding is reached on such matters, embody said under-
standing in a signed agreement;
(c) Post immediately notices to its employees in conspicuous places
throughout its Indiana Harbor and Chicago Heights plants stating
(1) that the respondent will cease and desist as aforesaid; (2) that
the respondent withdraws and will refrain from all recognition of
Steel Workers' Independent Union, Inc., as a representative of its
employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, rates of pay, wages, hours of employ-
ment, or other conditions of employment, and that the respondent
completely disestablishes it as such representative;
(d) Maintain such notices for a period of at least thirty (30) con-
secutive days from the date of the posting;
(e) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
APPENDIX "A"
From Board Exhibit No. 485:
From Respondent Exhibit
Robert Arnold
Byron Van Asdall
Evar Asplund
Charles Beck
Leonard Blumenthal
Vito Cirrincione
George Danciu
J. Jesse Davis
Nick Dimos
Mike Dzarnko
Erik Erickson
Enrique Flores
Harry Gil
Florian Glowacki
A. Gonzalez
Clarence Haan
Jesse Ortiz.
No. 47:
Mike Ivanovich
Dan Kelemen, Jr.
Andrew Kolsen
Frank Kula
Manuel Mendoza
Roy J. Messer
Jose Montemayor
Miguel Parra
Florence Tuesada
Steven Rakos
Charles Reed
Clifford Shaffer
Robert Simpson
Stephen Synko
Gust Takles
Harold A. Tolley
From Respondent Exhibit No. 48: May Billy, L. L. Nelson.
DECISIONS AND ORDERS
APPENDIX "B"
John Bobalik
John Sewik or Sewich
Elmer Johnson
Peter Haluska
Paul Clack
Florence Motz
Edward Williams
Urban Krahn
Paul Regenovich
Richard Osenbaugh
Daniel K. Levan
Warren Anderson
B. G. Alvarado
James Brown
Elmer Dillon
E. E. Gant
Paul Yalovay
John Carabulea
Joseph Krsek
APPENDIX "C"
Frank Vojvoda
Joe Mazas
Mathew Witezak
Slavako Oprich
George Suten
Oliver Larkin
Frank Riith
Tully F. Gurley
George Ansorge
Walter Gedwill
Mike Ciarmoli
Adam Stasak
Roy F. Crews
Richard Suchanik
Frank Blaszczyk
Ricardo Sotelo
Noel Brothers
Jin Espinosa
San Rogick
Russell L. Turner'
James Gianopoulos
Finis G. Wilson
Jose Castillo
Carl V. Johnson
John Sirbu
John Tomczak
APPENDIX "D"
Sam Flitar
Arthur Culp
John Bozek
Walter Blinston
Ignatius Solecki
Leslie Zimmerman
Peter J. Oster
Vallie Morgan
Ramon Derber
Joe Burzinski
Kenneth Peters
Farrell Farris
Angelo Vendramini
Bruno Prucy
George Sweat
134068-39-vol ix-53
Adam Przybysz
Andrew Black
James Brown
James A. Novak
George Rava
Stanley Kaminski
Walter Scharfenberg
Jose R. Gutierrez
John Babetz
Mike Ademic
Juan Magana
William J. Neal
Edward Jelenicki
Robert Darnell
Robert McMillen
819'
820 NATIONAL LABOR RELATIONS BOARD
Louis Ornelas
Joe Fertell
Andrew Lampi
Theodore Dolatowski
Allen Bradberry
Claude Lorenzen
Floyd Swanson
Tony Normant
James Jones
Tom Fus
Frank Kotas
Joseph Pedziwiati
Paul Guzman
Joseph Maicher
Francis X. Walsh-
Earl C. Garrard
Joseph Henderson
Ray Williams
Paul Rhodes
Martin Young
Samuel Keminsky
Albino Lopez
Harry Gloich
Arthur Thomas
Joseph J. Macrowich
Anthony Long
Albert Planer
Cyril H. Lloyd
Frank Bonzy
Clyde Hardesty
Emmitt Butler
John Williams
Rade Vrcel
Theodore W. Belmont
Lee Smith
Carl Stanley
Junior Thompson
Elmer Harris
Virgil Johnson
Lester Lincoln
Joe Pavlik
John Grabowski
Arthur Morgan
John Rudeski
William Brumels
Herbert Dust
Jack Dixon
Achin Gbicosan
Joseph Henderson
Silas Jeffers
Walter Kulig
Theodore Libeg
Robert H. Manaugh, Jr.
Lloyd Neeley
Alex Pacala
John Philip
Frank Schultz
Charles Sikes
Clarence Wilson
Robert Harper
James Fleming
John Jordan
John Frankovich