United Steel Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1943

50 N.L.R.B. 752 (N.L.R.B. 1943)

In the Matter of UNITED STEEL FABRICATORS , INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS (AFL) • and INDEPENDENT METAL
WORKERS UNION ( PARTY TO THE CONTRACT)
Case No. C-2566.-Decided June 22, 19113
Mr. John W. Coddaire, Jr., for the Board.
Mr. David A. Taggart, of Wooster, Ohio, for the-respondent.
Mr. Alton H. Etling, of Wooster, Ohio, for the Independent.
Mr. P. A. Trant, of Pittsburgh, Pa., and Mr.. Ralph Rust, of Mans-
field, Ohio, for the I. A. M.
Mr. Gerard J. Manacle, of counsel to the Board.
DECISION
AND
ORDER
Y
STATEMENT OF THE CASE
Upon an amended charge duly-filed on December 4, 1942, 'by the
International Association of Machinists, herein called the I. A. M.,,,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint, dated February 8, 1943, against United Steel Fabrica-
tors, Inc., Wooster, Ohio, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section, 8 (1) and
(2) and S@ction 2 (6)'and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent,
the I. A. M., and the Independent Metal Workers Union, herein called
the Independent.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent : (1) since August 1942 has domi-
nated, interfered with, and supported the formation and adminis-
tration of the Independent; (2) since September 1941 the respondent
in various ways exhibited opposition to an outside union, warned and
-threatened the employees with discharge, reduction in wages, and the
i At the time of the hearing , the I . A. M. was still affiliated with the A . F. of L ; since
then, this affiliation has been terminated . References in the record to the A F. of L will
be designated in this decision as I. A M.
50 N. L. R. B., No. 106.
752
UNITED STEEL FABRICATORS, 'INC . 753
closing of the plant for adhering to the I. A. M. or if the' I.-A,.-M.,
succeeded in organizing the plant, and urged employees to join the
Independent; and (3) by the foregoing and, other specified -acts, the
respondent interfered with, restrained, and coerced its employees -in
the, exercise of the'rights guaranteed in Section 7 of the Act.' On
February 18, 1943, the respondent filed an answer admitting certain
allegations of the complaint, but denying the unfair labor practices
alleged. The Independent filed no answer.
Pursuant to notice a hearing was held on February 24, 25, and 26,
1943, at Wooster, Ohio, before William Strong, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respond-
ent, the Independent, and the I. A. M. were •representeds,and partici-
pated in the hearing.. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties. At the close of the hearing, a motion
to amend the complaint to conform to the proof as to dates, names,
and minor particulars was granted without objection. Rulings were
made by the Trial Examiner during the course of the hearing on vari-
ous other motions and on objections to the admission of evidence. The
Board has reviewed .the rulings and finds that no prejudicial errors
were committed. The rulings of the Trial' Examiner are hereby
affirmed.
On March 30, 1943, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the parties, in which-he
found that the respondent had engaged in and was engaging in unfair
labor practices within the meaning of Section 8 (1) and Section 2 (6)
and (7) of the Act; and recommended that the respondent cease and
desist therefrom and take certain affirmative action to effectuate the
policies of the Act. He further recommended that the complaint be
dismissed insofar as it alleged that the respondent had engaged in and
was engaging in unfair labor practices within the meaning of Section
8.(2) of the Act.
On April 20, 1943, the I. A. M. filed exceptions to the Intermediate
Report, and a brief in support thereof.- No request for oral argument
was made by any of the parties. The Board has considered the said
exceptions 'and brief, and except insofar as they are inconsistent with
the findings and conclusions set forth below, finds the exceptions to
have merit.
Upon the entire record in'the case, the Board makes the following:
FINDINGS OF FACT _
1. THE BUSINESS OF THE RESPONDENT
The 'respondent, an Ohio, corporation, is engaged in the manufac-
ture of landing mats, pontoon balk, drainage pipe, and other products
754' ' DiCISIONS OF NATIONAL LABOR RELATIONS BOARD;
I
at Wooster, Ohio. During 1942, approximately 75 percent of the total
raw materials purchased by the respondent, valued at approximately
$3,100,000, were purchased outside the State of Ohio. During the same
period, the respondent's sales amounted to- approximately $5,785,000,
of which approximately 90 percent. represented shipments of its fin-
ished products to points outside the State of Ohio. The respondent
concedes that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED ,
International Association of Machinists is a labor organization
admitting to membership employees of the respondent.
Independent Metal Workers Union is a labor organization admitting.
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
Domination of, interference with, and, support to, the Association;
interference, restraint, and coercion
A. Chronology of, events
During the summer of fall of 1941, according to the uncontradicted
testimony of Frank Moller, an employee of the respondent, Moller,
and two other employees were discussing the advisability .of going to
the respondent's office and requesting wage raises. Moller expressed
the opinion that individual requests would be ineffective, but that a
collective request might be successful. On the next day, according
to Moller, William McKinstry, the respondent's general foreman,
informed Moller that he had heard Moller "was trying to organize
a union in, the plant," and warned him that if this were 'true Moller
"probably wouldn't be there very long." McKinstry denied having
made such statements. Upon the basis of the entire record, we credit,
as did the Trial Examiner, the testimony of Moller and find that the
incident occurred, and that McKinstry made the statements, sub-
stantially as testified, to by Moller.
In the early part of July 1942, Moller, Max Kline, Eugene,Franks,
and a few other employees met with P. A. Trant, an I. A. M. organizer,,
relative to organizing the respondent's employees. During July this,
group held other meetings to which the respondent's employees were,
invited. Finally, at a meeting, held on August 1, 1942,, an organizing
pommittee was appointed and plans were formulated for a membership
icampaign.2
' Tbis meeting was attended by Burl Christopher and an unidentified employee, who
were "pushers" or "relief men" in the respondent's plant, and, as found by the Trial
Examiner , exercised a limited degree of supervisory power Christopher merely listened
to the proceeding, while the unidentified 'employee asked many questions . There is no
evidence that employees in this capacity were to be excluded from the meeting , or that
UNITED STEEL FABRICATORS, INC. 755,
A few days prior to August 1, 1942, the Independent made its first
appearance. Its genesis is shrouded somewhat in mystery. 'Em-
ployee George Robison testified that he and employee Harold Forrer
decided to organize an unaffiliated organization, and, for the first time,
a "couple of days before" August 1, revealed their purpose to the other
employees when, they "spread the word" in the plant that a meeting
would be held on August 1.3 After first denying that he was aware
of the organizational efforts of the I. A. M. during July, Robison
admitted that he had heard "some" about it, but stated that this was
"not exactly" the reason he and Forrer inaugurated the Independent
movement., At 'the same time Robison and Forrer also circulated
through the plant during working hours, soliciting signatures to peti-
tions indicating that the signers thereof desired to form an unaffiliated
organization, which later became the Independent. Employee Kline
testified that he saw Robison "taking a paper around and getting
people to sign it" during working hours. He further testified that
he saw Foreman G. W. Greenwald examine the paper and return
it to Robison. Robison testified that Greenwald directed him to
cease circulating the petition in the plant. Although Greenwald,
called as a witness for the Independent, testified at great length on
other matters, no testimony was adduced from 'him with respect to
this incident. Upon the basis of the entire record, particularly
Robison's poor showing as a witness, Greenwald's failure to corrobo-
rate Robison, and the respondent's subsequent laxity- with respect to
the activities engaged in by Independent representatives on company
time and property,, as hereinafter shown, we, like the Trial Examiner,
do not credit the testimony of Robison and credit the testimony of
Kline. We further find, upon the basis'of the entire record,, that the
respondent permitted the circulation of this petition on company
time and property. I ,
Approximately 130 employees attended the August 1 meeting of the
Independent, which Robison described as a little "get-together"meet-
ing" where they "talked it over, and there seemed a lot of them
thought they would like he Independent Union," so they "got it under
way." Various men addressed the meeting, including Alton H. Et-
ling, the Independent's coun'sel,4 who urged the employees not to join
they were asked to leave the meeting. There being no other evidence in the, record of
surveillance , we find , as did the Trial Examiner , that the evidence fails 'to sustain the
allegations of surveillance contained In the complaint.
s Robison was the only witness to testify concerning the genesis of the Independent.
He was reluctant , evasive and equivocal to such a degree that no clear picture can be.
obtained from his testimony as to the events leading to the formation of the Independent
His testimony was constantly punctuated by such terms as "maybe ," "I guess ," "I suppose "
"I don't know," and "I forgot," and , as the Trial Examiner found, Is entitled to little
credence. Forrer did not testify, and no showing was made as to his unavailability.
Robison testified that he did not know who invited Etling to the meeting.
756 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 1
any national labor organization. At the conclusion of the meeting,
beer and sandwiches were served.5
-The Independent held' another meeting` on August 12, according to
employee Russell Caldwell, at which a temporary organization was
effected and temporary officers were elected. Caldwell, and 'employee
Warren Weigel were elected temporary president and secretary, re-
spectively. Nothing further was accomplished at this meeting.
From this ' point on, Caldwell appeared completely to control the
affairs of the Independent.
Subsequently, and prior to September 1, 1942, according to Cald-
well, "quite a bit of rivalry" developed between the Independent and
the'I. A. M. Caldwell "and Weigel had membership cards printed,
apparently without specific authority from the Independent, and di-
rected the distribution of these cards among the employees for their
signatures. This was done on the street in front of the plant as'the
employees entered or left the plant. Many leaflets were likewise cir-
culated among the employees by both organizations during this,
period. Caldwell was the author of all Independent leaflets so cir-
culated. On a number of occasions during this period, Caldwell,
Weigel, Robison, and other Independent members, left the plant one-
half to three-quarters of an hour before.the termination of their shifts,
at times without permission, in order to engage in this activity.e An
attempt was made, to show that the respondent during that period
permitted the 'employees a' large degree ,of freedom in ringing out
early without permission. Two foremen testified, however, that em-
ployees so doing would be "bawled out." Nevertheless, although
these employees punched out their cards and thus indicated that they
had left early, and although during the time they were absent they
6 Robison testified that he and Forrer paid for all the expenses of the meeting, the
amount of which he could not'lecall at first; later he testified that he paid as his share
,"not much ten or fifteen, dollars I suppose" They were not reimbursed for this expendi-
ture. Russell Caldwell, president of the Independent, testified that he once asked Robison
how he took care of the expenses and that Robison replied . "I am not free to tell you how "
An insurance broker, George E Wertenbeiger , who sells insurance to the respondent,
testified that he had purchased and paid for the beer at the request of a stranger who
represented himself as an employee of the respondent Wertenberger then pointed out
Robison in the bearing room as the "stranger ." At the conclusion of his testimony, Rohl-
,son took the stand to deny that he had solicited the beer from Wertenberger . The latter
thereupon resumed the stand to retract his identification of Robison It is interesting to
note that Robison requested the Independent, according to the testimony of Caldwell, to
,reimburse him for the time -lost from work which he spent in arranging the first meeting
but never asked reimbursement for the expenses incurred in holding the meeting
0 Caldwell testified that on one occasion he "rang out " about 15 or 20 minutes early,
without having requested permission ; his testimony further indicates that other members
of the Independent went out before their shifts terminated to distribute literature . Weigel
testified that he rang out 45 minutes early on one occasion after asking the foreman's
permission . The foreman asked Weigel whether he was eiek , and Weigel replied that he
had "felt better." Weigel, further testified , that it is possible that he punched out early
more than once Robison testified that he rang out a half hour early three or four times,
after lying "a little"" to the "boss" by telling the latter he had something to do at home
All the above employees on those occasions , however , never went Home, but remained on
the street in front oflthe plant passing out the Independent leaflets.
UNITED STEEL FABRICATORS, INC. 757
conducted, their Independent activities on the street in front of the
plant, they were never reprimanded. It is incredible that this con-
duct repeated over a period of 3 weeks, and the purpose thereof, could
so escape the attention of the respondent. We find, therefore, that
the respondent departed from its usual practice and permitted em-
ployees to leave their work'early in order to engage in Independent
organizational activities, thereby facilitating the promotion of the
Independent. I
About the middle or latter part of August, Caldwell, according to
his testimony, "on his own authority" arranged a meeting of the
I. A. M. and Independent representatives in the plant timekeeper's
office during working hours in order to avert an alleged altercation
between the two organizations outside the plant at the end of the shift.?
Caldwell further testified that he had directed a "relief-man," whose
identity he could not recall, to notify I. A. Al. members Kline, Franks,
and Fry, who had riot theretofore been notified of the meeting, to go
to the timekeeper's office. According to Kline's uncontradicted testi-
mony, however, Foreman Greenwald, without revealing the purpose,
directed Kline and Franks to report to the timekeeper's office. When
Kline and Franks arrived at the office, they found Fry and-Inde-
pendent members' Caldwell, Weigel, and Forrer there. Caldwell
testified that he spoke to them of his anticipation of trouble at the end
of the shift and of means to avert it. Kline corroborated Caldwell
to that extent. Kline further-testified that he told Caldwell that "we
never said anything about any rough stuff at all . . . we didn't count
on that kind of stuff." According to Kline, Caldwell then discussed
the merits of the Independent over the I. A. M., stating that the
I. A. M. was not "quite as good as the Independent," that the Inde-
pendent could obtain more benefits for them, and that they were foolish
for following the I. A. M. Caldwell denied making the latter state-
ments. The meeting lasted over half an hour, and during its progress
Foremen Crabtree and Davidson came in and listened to the discussion
for some time. Then, according to Caldwell and Crabtree, the lat-
ter inquired why they were meeting on company time, informed then
that the respondent did not permit such meetings, and warned them
of discharge if it were repeated or if they distributed any literature
on company time and property. Kline, however, testified that after
Crabtree entered, they became engaged in a- heated discussion, and
thereupon Crabtree merely admonished them against fighting, and
added that if there were any fights he would "throw them out."
Independent member Weigel corroborated Kline to the extent that he
could not recall,Crabtree reprimanding them for holding the meet-
7 Outside of Caldwell 's testimony that he had beard rumors of the altercation, there is
not the slightest evidence to indicate that any such trouble was impending at this time ;
nor did any occur.
536105-44-vol. 50-49
758 DECISIONS OF NATTONAL LABOR RELATIONS BOARD,
ing. ` Upon the basis of the entire record , we credit the testimony of
Kline, as did the Trial Examiner, and find that the meeting occurred
%substantially as he testified. -
That Foreman Greenwald was aware of the arrangements for the
meeting is further evident from the following uncontradicted testi-
mony of employee Moller. Moller, who Was secretary of the I. A. M.
organizing committee, heard that Greenwald had directed I. A. M.
members Kline, Franks, and Fry to go to the timekeeper's office, and
Moller saw them in there with Independent members Caldwell, Weigel,
and Forrer. Moller went to Greenwald; told him that he [Moller]"
assumed that Greenwald had sent the I. A. M. members to the office
so that the Independent members could try to "convert them into
their Union"; and that since he [Moller] "was deeply interested in
the A. F. of L. J. A. M.]," he would "like to go in too." Without
denying the truth of Moller 's accusations , Greenwald refused to
permit Moller to go into the office . We credit the foregoing undis-
puted testimony of Moller. Upon the basis of the entire record, and
particularly Greenwald's failure to deny the foregoing, incident as
related by Moller, we find that the respondent permitted and aided
Caldwell to call this meeting under the pretext of considering antici-
pated trouble , which it knew had no basis'in fact, for the purpose of
furthering the organizational efforts of the Independent.
Moller was one of the most active I. A. M. members in the plant.
His duties involved the wheeling of scrap from the' various machines
in the plant out to the yard. In the course of his work , which took
him to various parts of the plant, he engaged in conversation with the
other employees. Although he had thus conversed with other em-
ployees since he commenced to work for the respondent in May 1941,
he had never been reprimanded prior to his affiliation with the I. A. M.
Late in August 1942, however, Foreman Greenwald admittedly
warned him that he wanted Moller to "cut that out." -Moller testified
that he thereupon accused Greenwald of reprimanding him because
of his I. A. M. activities . According to Moller, Greenwald stated
that "he didn 't care what organization I belonged to, but he did feel
strongly for anyone who was -working for the A. F. of L. J. A. M.]
because they wouldn't be there long, and he also said if the A. F. of L.
[I. A. M.] got into the plant the Company would mole the plant to
Marion, or they would cut the wages and the hours, and he. said he
wasn 't in favor of a Union , but there was an Independent Union in
the shop for steel fabricators only. He worked in that shop and the
Independent Union was very good for the men ." Greenwald denied
making the hereinabove quoted statements . Upon the entire record,
we credit the testimony of Moller , as did the Trial Examiner, and
'find that Greenwald made the statements above attributed to him by,
Moller.
UNITED STEEL FABRICATORS, INC." 759
On the other hand, according ' to the uncontradicted testimony of
Moller, Caldwell, the leader of the Independent, who was employed in
the maintenance department and whose duties took him throughout,
the plant, talked to Moller on one occasion during working hours.
about the advantages of the Independent over the I. A. M. Moller
further testified that he had observed Caldwell talking to different
employees on "quite a few occasions" during working hours during
August. Caldwell admitted that he occasionally stopped to talk to-
employees who wanted to talk to him about the "union." Caldwell
was never reprimanded for thus talking "union" during working
hours.
In the middle of August 1942, Beckler,8 foreman of the shipping
department, engaged in conversation, with Moller in the presence of
other employees. According to Moller's uncontradicted testimony,
Beckler stated that his superior, Franks, had advised Beckler "that
if he caught,any of the boys that wore A. F. of L. [I. A. M.] buttons
that he would give him any excuse to fire them, to send them into the
office." We credit the foregoing testimony of Moller, as did the
Trial Examiner, and find that Beckler made the statement attributed
to him by Moller.
Employee Donald Rodgers signed an I. A. M. card in August and
wore one of its badges in the plant. He testified that about this time
Foreman Crabtree commented that he noticed Rodgers was wearing
an I. A. M. badge. ' Rodgers replied, "Yes, 'sir, but it don't necessarily
mean anything." Crabtree then advised Rodgers, "Well, you .better
take it off"; whereupon Rodgers, accepting this as "friendly advice,"
removed the badge. Crabtree, admitting such a conversation about
the- badge, denied, however; advising Rodgers to remove the badge.
He testified that he remarked that he was "neutral in this," but that
he hoped they would get "the thing settled because they are raising the
devil with production." Upon the entire record, we credit the testi-
mony of Rodgers, as did the Trial Examiner, and find that Crabtree
made the statements attributed to him by Moller.
In contrast to the * tolerance' accorded the Independent in permit-'
ing the circulation on company time and property of the petition by
Robison was the treatment accorded to employee Kline who, in Au-
gust, distributed some I. A. M. literature in the plant,rest room on his
own time. According to Kline, Foreman Greenwald reprimanded
him and threatened to discharge him if he repeated this activity.
Greenwald then reported the incident to Superintendent Johnson,
who summoned Kline, and, according to Kline, discharged him. Kline
further testified that before the end of the shift, Johnson rescinded the
discharge. Johnson admitted that he reprimanded Kline, but denied
8 Moller referred to Beckler as "Becker " Foreman Crabtree testified, however, that the
correct name is Beckler . Beckler did not testify.
760- DECISIONS OF - NAT1]ONAL 1ABOR -RELATIONS BOARD
discharging him and then rescinding the discharge. Upon the entire
record we credit Kline's testimony, as did the Trial 'Examiner, and
find that the incidents occurred as described by him. '
Greenwald testified that Kline distributed the literature during
working hours in the rest room to 8 or 10 employees, all of whom were
there improperly, as he "supposed," because of Kline's "request to
come to the A. F. of L. J. A. M.]." -He testified that he selected Kline
for the reprimand because Kline "was the ringleader." 9 Since em-
ployees were permited to go to the rest room at various times during
working hours, there was nothing to indicate that Kline was not there
for a permissable reason, and that the other employees were not there
improperly. Nevertheless, Kline was the only employee reprimanded,
or disciplined. Upon the entire record, we find, as did the Trial
Examiner, that Kline was properly in the rest room and that he was
reprimanded and discharged because of his •I. A. M, activities.
On August 25, the Independent had another meeting at which Cald-
well read a constitution which was adopted. No other Independent
meetings were held in August, and the record does not indicate that
the matter of recognition or of a contract with the respondent was
specifically considered at any of the afore-mentioned meetings. Never-
theless, according to Caldwell, when he and the other temporary
officers determined, on September 1, that a majority of the employees
had signed membership cards in the Independent, they decided forth-
with to demand bargaining rights from the respondent. Conse-
quently, on that day, and without first 'having called a meeting of the
Independent to discuss the matter, they went into the office of W. C.
Martin, president of the respondent, submitted the cards to him, and
demanded bargaining rights for the Independent.
Although the record does not show that any arrangements had been
made for this meeting, and Martin testified that until the cards had
thus been submitted to him in his office he had not "directly known"
that the Independent had been organizing, there immediately ensued
a comparison of the names on the cards with the pay-roll records.
Three other officials of the respondent aided Martin in this task, which
lasted 4 hours. The respondent had the signatures of only 15 percent
of its employees on its records, and these, signatures were compared
to corresponding signatures on the cards 10 The remainder were
checked against the pay-roll records. Although Martin admitted that
he was not certain that the employees actually signed the cards, never-
theless, without making any effort to determine whether the signa-
tures on the cards, which were checked against the pay roll, were
authentic, the respondent accepted 270 of the 300 or more cards pre-
9 While Greenwald did not qualify the term "ringleader," It is areasonable inference,
and we find, that Greenwald meant an I. A. M . "ringleader."
19 It was not shown what number of the signatures on the cards corresponded to the 15
percent of the signatures which the respondent had on its records.
UNITED STEEL FABRICATORS, INC. 761
sented 11 and immediately recognized the Independent as the bargain-
ing agent for all of its employees.
On September -4, the Independent and the respondent conferred
relative to a contract. While this conference was in progress, P. A.
Trant, I. A. M. organizer, telephoned the respondent's plant and asked
to speak to President Martin. The operator told him that Martin
was in conference and could not be disturbed. Trant thereupon told
her who he was and whom he represented, and requested her to ask
Martin to telephone him on an important matter. Failing to receive
any call, Trant sent Martin a telegram that same day, informing him
that a number of employees had designated the I. A. M. as their bar-
gaining agent. Martin did not reply. Trant unsuccessfully attempted
to talk to Martin on a number of subsequent occasions. Martin testified
that, although he knew of Trant's calls and had received the telegram
which, he admitted, might have been a claim of conflicting repre-
sentation, he made no effort to communicate with Trant because he
"didn't know the gentleman and never met him before," and that
"he didn't know what he represented.", The telegram clearly indicated
the latter. While admitting further that "it appeared" that there
were two unions competing for the allegiance of the respondent's em-
ployees, Martin made no effort' to determine whether some of the
employees, whose signatures appeared on the membership cards sub-
mitted to the Independent, did not also belong to the rival labor or-
ganization. Instead, he continued to confer with the Independent
relative to a contract.
In all, about three or four conferences were held. Caldwell, the
Independent's president, was paid for the time spent at these con-
ferences as well as for the 4 hours consumed in checking the Inde-
pendent's membership cards. While Caldwell testified that the In-
dependent did not submit any proposed draft of an agreement, Martin
stated that such a proposed draft was submitted. We credit the tes-
timony of Caldwell and find that the Independent did not submit a
proposed draft of any agreement. With respect to a closed shop, Mar-
tin testified that "the question was raised as to whether or not we
should have a closed shop, and after reviewing the Wagner Act, and
what not, why, the only thing that seemed left for us to do was to
comply with their wishes, which we did." With respect to the discus-
sion on wages, Martin testified, "I asked the Independent to give us
specific cases. They felt some men in the shop should have a higher
rate of pay, and I asked them to name the men, let him talk to his
foreman, and have the foreman recommend it to us, and we would
either act favorably or against."
' At this time„ according to Martin, the respondent had 550 employees, of whom about
80 were office employees and supervisors, neither group being eligible to membership in the
Independent.
762 ' -DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD"
By Septernaer, 16, the parties were in agreement' upon a contract
which, among other things, provided for exclusive recognition, a
closed shop, and a check-off of the Independent's monthly dues. The
contract was approved and ratified that night at a special meeting of
the Independent called by the temporary officers. Caldwell admitted
that this was the first meeting at which the employees were informed of
the contract and its provisions. There is no provision in the contract
for a grievance machinery although Caldwell admitted that a griev-
ance procedure is a fundamental part of a contract and that without
it there is no contract. Nor does the contract provide any method for
'the handling of disputes or matters arising out of the contract. The
following day, September 17, the contract was executed. From then
on, employees were-required to join the Independent on penalty of
discharge. Upon the entire record, particularly the conflicting testi-
k
mony of Martin and Caldwell with respect to the submission of a
proposed draft agreement by the Independent, the circumstances
under which, negotiations were ,conducted, the nature of the negotia-
tions, the manner in which the contract was submitted for approval
by the membership at large, the terms of the' contract, and the omis-
sion of a grievance machinery, we find that no genuine collective
bargaining took place and that the contract was negotiated and exe-
cuted for the purpose of entrenching the Independents as a bar to its
rival, the I. A. M.
Permanent officers- for the Independent were elected in October
1942. At one of the elections for a committeeman, which was con-
ducted at the plant during the lunch hour, about 5 weeks prior to
the Board, hearing, Assistant Foreman Scales counted the ballots,
'according to the uncontradicted testimony of employee George Fair-
hurst in whose department the election was held. Upon the entire
record, particularly the respondent's failure to refute the testimony of
Fairhurst, we, like the Trial Examiner, credit the testimony of Fair-
hurst with respect to the conduct of the election and find that, at the
time of the ,election, Scales was a supervisory employee for whose
conduct the respondent was responsible. ' ^
B. Conclusions
'The, Trial Examiner, after finding many of the same facts outlined
above, concluded that the respondent's conduct "comprised a substari-
tial measure of support to the Independent" and that "the e'mployees'
choice of the Independent as their collective bargaining agent was
not made under circumstances which accorded them that freedom of
selection which is contemplated and guaranteed under the Act." He
further concluded that the findings set forth in his report "fail to show
such a degree of violation of the Act as to require total disestablish
11
UNITED STEEL FABRICATORS, INC. 763
ment of the Independent as a collective bargaining agent." In arriv-
ing,at this conclusion, however, the Trial Examiner failed to resolve
conflicts in certain testimony or to give weight to certain testimony
or to make findings upon such testimony or to draw inferences from
or make findings based upon certain facts recited in his report, all of
which, as set forth in the chronology of events, is further' indicative
of the respondent's domination of and interference with the Independ-
ent. Consequently, we are unable to agree with the Trial Examiner's
final conclusion.
As early as 1941, the respondent plainly indicated that it was
opposed to genuine self-organization among its employees. Not until
the I. A. -M. attempted to organize the employees in 1942 did the
Independent make its appearance. The mystery surrounding the
genesis of the Independent in itself casts grave reflection upon its
validity. In any event, the respondent gave initial support to the,
Independent by permitting the circulation of a petition for its forma-
tion on company time and property. Thereafter, it facilitated and
supported its,membership campaign by permitting the Independent
organizers to leave work before the end of the shift, contrary to its
prior practice of reprimanding employees for engaging in such con-
duct, and by arranging to have the Independent representatives hold
a meeting on company time and property for the purpose of attempt-
ing to win over to its cause the I. A. M. adherents. Further sub-
stantial support was given to the Independent by the respondent's
expressions of hostility to the I. A. M. and its adherents and by the
unequal treatment accorded to the members of the two competing
organizations. In threatening employees with discharge, lower wages
and less work, and the moving of the plant if they wore I. A. M.
badges, or if the I. A. M. succeeded in organizing the plant, in advis-
ing employees to remove their I. A. M. badges, and in urging them to
join the Independent, the respondent plainly indicated that it was
backing the Independent in opposition to the I. A. M. and that it would
be to the employees' advantage to join the Independent. These threats
and warnings; coupled with the assistance and support rendered to the
Independent in its critical formative stage and at a time when/the
I. A. M. was struggling fora foothold, ,were most effective and con-
tributed materially to the success of the Independent organizers in
securing the signatures of a majority of the respondent's employees.
The respondent's favoritism towards and support of the Independent
is further evidenced by the disparity in its treatment of the Independ-
ent and the I. A. M. members. Thus, while permitting employees
Forrer and Robison to circulate an Independent petition on company
time and, property, the respondent reprimanded and discharged em-
ployee Kline for handing out a few I. A. M. leaflets while properly
11
n
764 DECIiSIOOr S OF NATTONAL LABOR RELAT1ONS BOARD,
in the plant rest room.12 Culminating the respondent's efforts to
frustrate the organizational activities of the I. A. M., was the respond-
ent's unseemly hasty execution, without prior genuine collective bar-
gaining and with full knowledge of the I. A. M.'s possible conflicting
membership claim,1° of a contract granting the Independent exclu-
sive recognition, a closed shop, and a check-off of monthly dues. The
promptness with which the respondent agreed to grant 'the Inde-
pendent a check-off of dues and a closed shop, while at the same time
utterly ignoring the I. A. M.'s representation claim, demonstrates,
and we find, that the respondent agreed thereto in order to entrench
the Independent among the employees and to insure its financial sta-
bility. Under these circumstances, we find that the closed shop and
check-off constitute support to the Independent proscribed by the Act.
Thereafter, the respondent participated, through Assistant Foreman
Scales, in an Independent election held at the plant.
Viewing the record in its totality and considering the circumstances,
heretofore related, cumulatively and compositely, we are convinced
and find that the respondent has dominated and interfered with the
formation and administration of, and contributed support to, the In-
dependent; and that thereby, and by the anti-union statements and
conduct of Superintendent Johnson, General Foreman McKinstry and
Crabtree, and Foreman Greenwald and Beckler, outlined above,, the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. We
further find that the contract of September 17, 1942, having been
entered into with an organization unlawfully dominated, interfered
with, and supported by the respondent, is illegal and void.
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 respond-
ent described in Section I, above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce
and the frees flow of commerce. -
V. THE REMEDY
Having found that the respondent has engaged in and is engaging
in-unfair labor practices, we shall order it to cease and desist there-
ii The respondent contended that Wine's conduct violated an unpublished rule, pro-
hibiting the distribution of literature in the plant The Trial Examiner found that the
rule violated the Act. We find it unnecessary to determine whether the rule, per se, is a
violation of the Act since it is clear , as we find in the text, that the rule was discrimina-
torily applied as between Independent and I. A. M members.
,13 Aside from the telegram received from I A M. organizer Trant , Martin admitted that,
by "hearsay" from forgotten sources, he had known of the A. F. of L. organizational
-UNITED STEEL FABRICATORS ,, INC . - , '765
from'and to take certain affirmative action designed to effectuate the
policies of the Act. _ ,
We have found that the respondent has dominated and interfered
with the formation and administration of, and contributed support
to, the Independent. We find that the effects and consequences of
such domination, interference, and. support render the Independent
incapable of serving the respondent's employees as a genuine collec-
tive bargaining agency, and that the recognition of the Independent
as the bargaining representative of the respondent's employees con-
stitutes a continuing obstacle to the free exercise by the employees of
their right to self-organization and to bargain collectively through
representatives of their own choosing. We shall order the respondent
to withdraw all recognition from and to completely disestablish the
Independent as a representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of
employment.
We have also found that the contract between the respondent and
the Independent, dated September 17, 1942, is invalid because it was
made with a labor organization which had been assisted by unfair labor
practices. We shall therefore order the respondent to cease and desist
from performing or giving effect to such contract, as well as to any,
extension, renewal, modification, or supplement thereof, or any super-
seding contract which may now be in force with the Independent
relating to grievances, 'labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment. Nothing herein,
however, shall be deemed to require the respondent to vary or abandon
those wage, hour, seniority, and other substantive features of its rela-
tions with the employees themselves, which the respondent may have
established in performance of the contract, as extended, renewed,
modified, supplemented, or superseded.
We are of the opinion that, under the, circumstances of this case,
the respondent should be ordered to reimburse each employee for any
amounts which the respondent has deducted from his wages for dues
in the Independent. The respondent concluded a closed-shop' con-
tract with the Independent, a company dominated and supported,
organization, thus compelling its employees to become and remain
members of the illegal organization. Employees were threatened with
discharge unless they joined the Independent. The check-off pro-
vision, a device by which the respondent assured the financial stability
of the company-dominated and supported organization, could no
more be avoided by the employees than could the compulsory member-
ship requirement. We find that the monies thus deducted from the
activities during the summer ; he further admitted being informed by supervisors that the
employees were passing out literature in behalf of "all unions," and that he knew there
were a couple of rival organizations struggling for the employees ' allegiance.
I
766,. DE'OISTONS OF 'NA'TMONAL LNBO R RELATIONS BOARD
wages of the employees constituted the price of retaining their jobs, a
price coerced from them for the respondent's purpose of supporting
and maintaining the organization which the respondent had domi-
nated and supported in' order to thwart bona fide representation., We
further find that, as a result of the imposition of the illegal closed-
shop and check-off requirements, the employees suffered a definite loss,
and deprivation of wages equal to the amounts deducted from their
wages and paid over to the Independent. It is appropriate that the
employees be made whole by reimbursement of amounts exacted from
them for illegal purposes. We find that in these circumstances,14 the
effects of the unfair labor practices may,be fully remedied and the
purposes and policies of the Act may be completely effectuated only
by restoring the status quo. Hence, we shall- order the respondent
to reimburse its employees for the amounts deducted from their wages
for dues in the Independent 15
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:-
CONCLUSIONS OF LAW
1. International Association of Machinists and Independent Metal
Workers Union are labor organizations within the meaning of Section
2,(5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of and contributing support to the Independent Metal Work-
ers Union, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act. '
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging 'in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4., The aforesaid 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 above 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 respond-
ent, United Steel Fabricators, Inc., Wooster, Ohio, and its,officers,
agents, successors, and assigns shall:
14 The propiiety of an order requiring reimbursement of dues deducted from wages de-
pends upon the particular circumstances of the case . In the particular circumstances of
this case, we regard the dues reimbursement requirement peculiarly "adapted to the
situation which calls for redress." N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S.
333, 348 ,; Virginia Electric & Power Co. v. N. L. R. B , 314 U S. 469 ; cf . Matter of Abraham
B Karron, d b a. Pennsylvania Handbag Frames Manufacturing Company, 38 N. L. R. B.
838, 862; note 27.
Iu See Virginia Electric if Power Co V N. L R. B., 63 S. Ct. 1214, affirming 132 F. (2d)
390 (C. C. A. 4).
UNITED STEEL FABRICATORS, INC. 767
1. Cease and desist from: -'
(a) Dominating or interfering with the administration of Inde-
pendent Metal Workers Union, or with the formation or administra-
tion of any other labor organization of its employees, and from con-
tributing any support to said labor organization or any other labor
organization of its employees;
(b) Recognizing or in any manner dealing with Independent Metal
Workers Union as the representative of any of its employees for the,
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment;
(c) Performing or giving effect to the contract of September 17,
1942, 'with Independent Metal Workers Union, or to any extension,
renewal, modification, or supplement thereof, or to any superseding
contract with said organization which may now be in force;
-'(d) 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 purposes 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 and withhold all recognition from the Independent
Metal Workers Union, as the representative of any of its employees for
the purposes of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, and completely disestablish the Independ-
ent as such representative;
(b) Reimburse each of -its employees for all the dues, if any, which
it has deducted from his or her wages on behalf of the Independent
Metal Workers Union;
(c) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees'stating: (1) that the
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order,
and (2) that the respondent will take the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith. - '
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.