Kentucky Tennessee Clay Co.

In the Matter of KENTUCKY TENNESSEE CLAY COMPANY, A CORPORA- TION and INTERNATIONAL UNION OPERATING ENGINEERS, LOCAL 181, AFFILIATED WITH TIDE A. F. OF L. and INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA LOCAL 1214, AFFILIATED WITH THE A. F. OF L. Case No. C-2468.-Decided April 26, 10.E DECISION AND ORDER On December 24, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and that it had not engaged in certain other unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative .'action, as set out-in the copy of the Intermediate Report attached thereto, and that, the com- plaint be dismissed as to the remaining allegations. Thereafter,' the respondent filed exceptions to the Intermediate Report and a -brief in support of the exceptions. Oral argument, in which only the respondent participated, was had before the Board on April 15, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The `rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and qualifications noted below : . 1. The Trial Examiner found that Brack Clapp was laid off from May, 18 to May 26, 1942, because of his leadership of the miners, and his union interest and activity. We do not concur in this finding. While the matter is not entirely free from doubt, we feel that the evidence is insufficient to warrant a finding that Clapp was a leader of the miners and engaged in union activity prior to his lay-off, and that the respondent had knowledge of such leadership and-activity. We find, therefore, that the allegation of the complaint that Clapp was discriminated against, within the meaning of Section 8 (3) of the Act, is without support. 49 N. L R. B, No. 31. ' 252 KELNNT'U,CKY T'ENi1VESSEE CLAY. CtiMPANY ORDER ` 253 Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Kentucky Tennessee Clay Company, a corporation, Mayfield, Kentucky, its officers, agents, suc-' cessors, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, 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) Post immediately in conspicuous places at its mine at May- field, Kentucky, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1• of this Order; (b) Notify the Regional Director for the Fourteenth Region in writing within ten, (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges (1) that the 'respondent discriminated against Brack Clapp within the meaning of Section 8 (3) of the Act, and (2) that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed. INTERMEDIATE REPORT 311 Ben E Cooly. fur the Board Messrs. Seth 1' Boaz arid John Th Mr,Donald, of Ma^fielcl, Ky, and Fiancis if. Cailee and Richard F. Moll, of St. Louis, Mo, for the respondent Mr. Leslie Atherton, of Paducah , Ky, for the Engineers. Mr. Joseph S. Freeland and Mr. W. G. McCloud, of Paducah, Ky., for the Hod Carriers. STATEMENT OF THE CASE Upon a first amended charge duly filed on August 15, 1942, by the International Union Operating Engineers, Local 181, A. F. of L., herein called Engineers, and International Hod'Carriers, Building and Common Laborers Union of America, Local 1214, A. F. of L., herein called Hod Carriers, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eleventh Region (Indianapolis, Indiana ), issued its complaint dated November 12, 1942, against Kentucky Tennessee Clay Company, a corporation, Mayfield , Kentucky, hereni 264 - DECISIONS-=OF-NATJIONAL LABOR RELATIONS BOARD 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), (3) and ( 5) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, charge, first amended charge , and notice of hearing thereupon were duly served upon the respondent and the Unions.' With respect to the unfair labor practices , the complaint alleged, in substance, that the respondent : ( l) from on or about February 20, 1942, down to the time .of issuance of the complaint, engaged. nn a preconceived and continuous course of action 'for the purpose of interfering with the selforganization of its em- ployees, by stating that it would never sign an agreement with the Unions, that it would shut down its plant if the Unions came in, that there was no reason for its employees to organize , that it disliked outsiders to tell it what to do, that the employees would not favor the Unions; and that the Unions would drive everybody crazy ; by interrogating employees about the Unions and union meet- ings; advising them that there would never be a closed -shop in the respondent's mine and informing employees that those retained after a lay-off were opposed to the Unions ; urging employees to consult their foremen before signing union application cards; proposing- a wage increase as an inducement to an em- ployee to abandon his union membership ; attending union meetings and offering a bribe to a union leader to abandon a union:-' (2) teenunated the employment on or about February 24, 1942, of three named individuals' for the reason that each of the said employees engaged in concerted activities for the purposes of collective bargaining and other mutual aid or protection ; (3) terminated the employment of three other named individual' on.or about May 18, 1942 , because they engaged in concerted activities for the purposes of collective bargaining and other mutual aid or protection ; (4) on or about June 22, 1942, and at all times thereafter, refused to bargain collectively 'with the Unions as the exclusive representatives of its employees,in it unit appropriate for collective bargaining, although the Unions on or about June 17, 1942 , became and at' all times there- after have been the duly designated representatives of a majority of the em- ployees in such unit ; and (5 ) by these acts , interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. ' On November ] 8, 1942, the respondent filed its motion for extension of date of hearing On November 19, the respondent filed motions to dismiss and to make the complaint more definite and certain . By order dated November.19, 1942, the Regional Directpr denied the respondent 's motion for extension of date of hearing, but did not pass , upou the motions to dismiss and to make the complaint more definite and certain . In its answer filed November 23, 1942, the respondent denied that it had engaged in or was engaging in the alleged unfair labor practices. - Pursuant to notice, a hearing was held from November 23 to 25, 1942, at May- field, Kentucky, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Acting Chief Trial Examiner. The Board and the respondent were represented by counsel , the Hod Carriers by their counsel and business 'Hereafter, when i efeience is made to the Engineers and Hod Carriers , or to joint action taken by them , both oiganieations will be referred to collectively as the Unions. 2 This latter allegation inns, on motion-of the Roam d 's counsel, stricken from the complaint. _ 3 Theodore Brooks, Monk Wilson, and Goebel Jackson. 4 Biack Clapp , Lon Lawrence , and Bernice Prince.: .KENTUCKY TENNESSEE CLAY COMPANY, - 255 agent, and the Engineers by their representative All parties participated in the hearing Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded the parties. At the commencement of the hearing, the respondent's motion to dismiss, previously filed with the Regional Director, was denied The respondent re- newed its motion to make the complaint more definite and certain, which motion was granted in part and the undersigned directed the Board's counsel to furnish the respondent those particulars in conformity to the ruling. At the conclusion of the Board's case, counsel for the Board moved to dismiss, without prejudice, the allegations of the complaint as to the discriminatory dis- charge on February 24. 1942. of Theodore Brooks, Monk Wilson and Goebel Jackson and the discriminatory lay-otf on May 18, 1942 of Lon Lawrence and Bernice Prince Both motions were granted over the respondent's objection that they should have been granted with prejudice At the conclusion of the hearing, the motion of counsel for the Board to conform the pleadings to the proof as to matters of form was gi anted without objection Counsel for the respondent made seveaal motions to dismiss the complaint in ifs entirety or, in the alternative, to dismiss certain portions thereof The undersigned denied these motions in part and reserved ruling on the remaining poitaon of such motions All motions are disposed of as hereinafter indicated. All counsel were afforded an oppol tunity to argue orally and to file hiiefs with the undersigned None of the parties argued orally,or filed briefs. Upon the entire record thus made and from his observation of the witnesses, the nndersig'aed makes. on addition to the foregoing, the following; FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent. Kentucky Tennessee Clay Company, a Delaware corporation, operates a clay mine six miles south of tllavheld, Kentucky, where it produces wall and refractory lire clay ' For the 12 mouths preceding November 17, 1942, the re- spondent purchased, foi use at its, Mayfield mine, raw materials valued at approx- imately $19,000, approximately all of which was received from sources outside the State of Kentucky During the same pea iod the respondent sold products produced at its Mayfield mine valued in excess of $100,000 approximately all of which were shipped to destinations on the State of Kentucky The respondent uses the trade mark "K-T" on its processed clay For the purpose of this proceeding the respondent stipulated that it was engaged in interstate commerce.' At the time of the hearing the respondent employed at its Mayfield mine ap- proximately Ill employees - II. THE ORGANIZATIONS INVOLVED International Union Operating Engineers, Local 181, and International Hod Car- riers, Building and Common Laborers Union of America, Local 1214, both affiliated with the American Federation of Labor, are labor organizations admitting to men-' bership employees ,of the respondent. O The findings in the paragraphs above of this section ale based upon a stipulation entered into between counsel for the Board and the respondent. 256 DEICISION,S OF NATIONAL LABOR RELATIONS BOARD III THE UNFAIR LABOR PRACTICES A Interference, rests aint, and coei ci,on 1. The events prior to June 3, 1942 ,The respondent's employees at Mayfield are engaged in the extraction and processing of clay They may be divided in the main into three classifications- "top" men who remove the earth's surface above the clay strata, miners who ex- tract the clay, and the miscellaneous employees who work around pulverizing equipment, mechanical equipment, storage sheds, and load the finished products into freight cars The miners had indicated an interest in organizing activity in 1940, and on one occasion in the early summer of,1941 attempted to hold a meeting of the employees. Interest in organizing was renewed in 1942 when the New York- Foundation Company commenced the construction with union labor, of a shell loading plant for National Fireworks, Iue, herein called National, at Viola, nearby Mayfield. In February 1942, a committee of employees, Brack Clapp, Goebel Jackson and Norman McCreary, was chosen by the miners to request a wage increase from the respondent and met with It W. Greene, the respondent's manager. Greene told the committee that their request would receive his con- sideration ° No increase however, resulted from the interview. Sometime in the spring of 1942, Roy Willes, the mine foreman, stated to Clapp, that: "The Union was getting pretty close," and made some slighting remarks about unions T On May 18, 1942, the respondent laid off 14 miners for reasons which are here- inafter discussed. The same day, Wilkes remarked to Ben Johnson, a miner, in The prey:nce of other miners: "The Union is getting pretty hot around h -ere. If anybody brings any Union papers to you all to sign see me before you sign them. I think now I have got all the men that will join the Union laud off.' The next day, Wilkes told Weldon McClure: "Bucket,' we are threatened with the Union in Mayfield, and if a man comes around to you to sign, you ate not to sign until you, seeime"'0 At or about this time Wilkes was asked by Clayton Nunley, "if the Union was the reason" for their lay-off Wilkes replied: "They ought to read between the lines " 13 Lon Lawrence, one of the miners laid off on May 18. was recalled to work May 25, 1942, on which day he had a conversation with Greene in the latter's office He testified that Greene asked him if he "was out for a union" and then Greene stated: "A union would just inn anybody crazy I would be ready to quit if a union cone here. It would run a fellow crazy." With respect to this alleged incident Greene testified as follows: Q Now, do you remember a conversation with Lon Lawrence on or about the 26th of May, Lon Lawrence? A. I do. "This action was evidently taken following the circulation of a petition about February 20, 1942, among all the employees iequesting that the respondent grant a wage increase. T This finding is based on the testimony of Clapp. Wilkes denied it. Wilkes denied ever mentioning the Unions at any time to any employees and was not on the whole and for reaa,)ns hereafter indicated, a credible witness. This is based upon Johnson's testimony, }vhich was denied by Wilkes. McClure's nickname. 1" This finding is based on McClure's testimony, denied by Wilkes., 11 This finding is based on Nunley's testimony likewise denied by Wilkes. KENTUCKY TENNESSEE CLAY COAIPANY ' 257 Q He testified in substance that he had a conversation with you in your office at the company. Did you state that you didn't want a Union because you would have nothing to say and that the Union would run anybody crazy? A. I heard his testimony. No, I don't recall I said a thing. Q. Do you recall his coming to your office at all? A. No. The undersigned credits the testimony of Lawrence and finds Greene to have made the statements as testified to by Lawrence. Brack Clapp, laid off on May 18, 1942, returned to the mine on May 25, to obtain his social security card. He testified that ,when he attributed his lay-off to his union activity Green replied, "Damn the Union", and stated that he had run the.mine for\40 years, and -would quit his job rather than permit a union to dictate what. he, w.is to do Greene admitted that he exclaimed, "Damn the Union", when Clapp ascribed the lay-off to his union activities, but denied the other anti-union remarks attributed to him by Clapp He testified that he was busy at the moment but explained to Clapp why it was necessary to reduce the force and that Clapp and the others had been selected for lay-off byWilkes be- cause they "could best get a position in a defense plant" where the respondent "understood there was an abundance of temporary work." The undersigned was not altogether impressed by Clapp's testimony yet its substance finds cor- roboration in and is consistent with the testimony of Lawrence cited above and with Greend's annnus towards the Unions as revealed on other occasions. It may be,. as Greene sought to make clear at the hearing, that his expletive was made in exasperation and annoyance with Clapp personally. Nevertheless, for the reason above stated the undersigned credits Clapp's testimony and finds Greene to have made the remarks on this occasion substantially as testified ,to by, Clapp Following the return to work about May 26 of most of the men previously laid off on May 18, Clapp visited the Unions' representatives at Paducah. Thereafter, the employees decided to hold a meeting to organize a union. The first meeting was held on" the night of June 2, 1942, at the home of employee Roscoe Hawkins. Hawkins' home was selected to avoid observation because of its isolated position. Wilkes was informed by Clayton Nunley that the employees were going to hold the meeting to organize it union Witnesses estimated that from 65 to 90 em- ployees attended the meeting On the night of June 2, Wilkes visited the home of employee Jesse Hopkins and asked Hopkins it lie was going to attend the meeting. Hopkins told Wilkes that he was not going to the meeting whereupon, Wilkes asked him if he would attend and "find out what happened." Hopkins refused to do so" Thereafter, Wilkes and Robert 0. Wilford employed in the respondent's office; went to the meeting in Wilkes' car. Wilkes admitted that he went to the meeting "to see who was there and what they was doing." When they arrived, Wilford asked what the employees were doing and was informed that the men had come to the meeting "to try to organize." Wilford told them that he hated to see the employees do that; that neither the respondent nor the employees wanted a union; that thus far both the respondent amid the employees had progressed without a union; that union organizers would "fool" the employees; and that if any employee was not satisfied Wilford would be glad to listen to him. The 12 Wilkes admitted that he asked Hopkins to attend the meeting. 258 DECISIONS OF'NATIIONAL LABOR RELATIIONS BOARD foregoing findings with respect` to Wilford's statements are based upon the •testimony•of Byron-•Webber'and Goeble Legate" I -Wilkes also spoke to the employees at the meeting. According to Goeble Legate, Wilkes stated: "Good Evening, boys Boys, I aim sorry but, I don't believe you boys are doing the right thing. I feel like the company would take care of you better than outsiders would.", Wilkes admitted that he might have asked "What are you doing, boys" but denied any other statements and attributed all the "talking" to Wilford. The undersigned finds Wilkes to have made -the remarks as testified to by Legate. - 2. The events of June 3, 1942 Following the lileeting, Wilkes returned to the mine and reportediwhat had taken place to Greene. The next morning. June-3, when employee Howard Heiison reported for work at about 7:15 he found Green in the litter's' office. Greene asked Henson if he had attended the meeting. Greene wanted td know the number of employees present and what they intended to do and if Henson believed the employees would organize. Henson told Greene the purpose of the meeting was to organize a union. Greene replied that there ought not to be a union at the mine and that it could not "help the Bien" for the reason that lie could not afford to work under a closed-shop " Immediately thereafter Greene told Wilkes that he wanted to talk to some of the miners and ordered him to send some of the miners to his office Hawkins was therefore sent to Greene's office. Greene told Hawkins that lie,had heard about -the meeting at his home. Hawkins answered that he did not care to discuss It and Greene remarked that this was "perfectly' all right." Greene added that the respondent could not afford to,increase wages, asked if the employees would not prefer to have Greene "taking care" of them rather than pay clues to a union- and stated to Hawkins that if the employees joined a union they could not bring their troubles to him, for he would quit >J Wilford admitted that he stated he could not make as good a speech as a labor organ- izer , that the respondent could not keep the employees from joining a union ; that the re- spondent was hatdpressed $nancially rind Gieene could be depended upon "to take care of them, if they would give him time" ; and lie hoped "they would give serious consideration before they got us all in a mess " At the hearing, the respondent maintained that Wilford was not a supervisory employee. Obie Snow characterized Wilford as "one of the head mien" and he and other Board witnesses testified that Wilford hired employees, gave in- sti actions to foienien and issued insti actions to employees ' Wilford is Greene's nephew and has been connected with the respondent of its predecessor in business since 1922 . He is a stockholder in the respondent corporation and receives a salary of $200 a,month. Wilford works in the respondent's office doing general office work, makes out pui•chase,orders and watches over texture of clay, its moisture content and packing In his testimony he admitted that he has recommended the hiring of employees to foremen ; instructed em- ployees , assumed responsibility for decisions in the absence of Greene and participated with Greene and other officials of management in consideration of problems affecting the mine and its operation. Wilford did not deny the testimony that he has issued instructions to foremen The undersigned finds Robert 0 Wilford to be a supervisory employee and as such, the respondent is responsible for his acts. See N. L. R B v. Link-Belt Co., 311 U S. 584 ; Intel national Association of Machinists v N. L, R B., 311 U. S. 72, N. L R B. v Jahn & Oilier Engraving Company, 123 F. (2d) 589 (C C. A 7). 14 These findings are based on IIenson 's testimony Greene testified that he regarded Ilenson as a "truthful man" and one who would not "willingly, wilfully make a misstate- ment " He testified further that he must have seen Henson in the office that morning but could net recall any conversation with him These findings are based on Hawkins' testimony. Greene admitted' calling Hawkins to his office ; that lie asked Hawkins "what -his difficulty was" ; that Hawkins replied that due to the rise in cost of living the miners were demanding more money to which Greene replied that he was thinking of raising the rate for mineis. KENTUCKY TENNESSEE CLAY COMPANY : 259 Following Hawkins'"return to the mine, the miners decided that what Greene had to-say to one'coulcl be said to alll. Accordingly,, they left them work and gathered outside the respondent's office. Wilford was asked to call Greene out to speak to the assembled employees. Five' employees " testified on behalf of the Board, in substance, that Greene stated he could see no reason why men wanted to join a union and pay dues to someone who would dictate to Greene and the employees, that the respondent was paying 2 cents an hour above the Union scale, and was hot going to pay any more In addition. Ben Johnson, a credible witness, testified that Greene remarked that he could look after the employees' welfare "better than somebody [they] didn't know anything about" Greene admitted at the hearing that he asked what was "the trouble all about": that in reply to a request for,a raise he stated the price of the respondent's product was frozen ; that the respondent's wages, were until recently, above the level in the area but would be increased 2 cents to reach this level: that the Federal income tax returns did not reflect the profits accruing to the respondent's stockholders; and that it was the respondent's policy to listen to individual or collective complaints and seek their anucable adjustment. He denied to his knowledge any mention or reference to unions The undersigned believes that what Greene said on this occasion lies somewhere between what he admittedly said and what the employees testified he said. ,Greene had previously that morning questioned Henson and Hawkins about the meeting of June 2 and expressed his interest in the organizing activity of his employees. He had moreover, as heretofore found, expressed the opinion that union, affiliation would not help the employees and if the employees joined a union Greene would not hear their complaints for he would quit. Moreover, the very circumstances of the meeting, following as it did Wilkes interference with the employees' rights and his report to Greene, indicates that Greene took advantage of the occasion to impress upon the employees his opposition to their organizing activity and union interests The undersigned so finds. Following Greene's talk to the employees, Wilford asked Byron Webber if the employees world be "sore"- if Wilford was observed ,talking to Webber Wilford then asked if Webber thought he "could take 60 cents an hour and stop the Union?" Webber replied : "If you [Wilford] let me pick one man and you' pick one man, the three of us will see what we can do " Webber selected Paul Camp and Wilford asked if "Legate, the deputy", would satisfy Webber. Wilford finally said lie would consult Greene ,in(] let Webber know `the very best figures he will give you " Later that day Wilford told Webber that he had not seen Greene and the incident closed" On the night of Jude 3, 1942, the eniplmees held their second meeting at the ]ionic of Hawkins At this meeting. attended by the Unions' representatives from Paducah. -a majority of the respondent's employees affixed their signatures to nnrrx3ographed application sheets of the Hod Carriers. 3, Further acts of interference because of union membership In September 1942, employees Paul Camp and Byron Webber filed applica- tions for positions with National at its defense plant in Viola W. A Rex, National's personnel manager, thereupon mailed the respondent a form inquiry, soliciting information concerning the experience, habits, and conduct of the two employees In Camp's case, Greene in reply to National's inquiry, 2 Why did applicant leaze your employ, wrote' "Is still working for us, day labor. Was on "Brack Clapp, Goeble Legate, Ben Johnson Cory Clapp and Clarence Nnnley 17 These findings are based on Webber's uncontradicted and credible testimony. 5.t1647-43-vol 49-18 i a 26O DECISIONS OF NATIONIAL LABOR RELATIONS BOARD strike,with manyothers,for 2 months,,demanding '40% wage 'increase." In further reply to National's question, 5. Do you know anything which might make appli- cant an undesirable employee for this connpavy, Greene wrote : "No, except above answer to No. 2 question." In Webber's case, Greene wrote , in answer to question 2 above:."Has not left our employ EXCEPT that he Signed up with Union, went out on strike for 8 weeks. Is now working" ; and in reply to question 5 above : "Was one of the leaders in our labor difficulties " Greene. also added to the personnel inquiry on Webber : "Strikers demanded 40 %o wage increase and closed shop. Got neither." 1e When Camp returned to inquire about his application he was told by Rex that he was a "trouble maker" and National would continue their investigation of his experience. He was not hired. Greene testified , that in view of the non-strike policy adopted by the two major national affiliated labor organizations, "any leader or striker would be an undesirable employee".19 Greene's conduct in this instance reveals his attitude towards the union mem- bership and activity of the respondent's employees By this conduct, Greene in effect, warned the employees against continuing their union membership and participating in concerted activities sanctioned by the Act. The undersigned finds that the respondent thereby engaged in a violation of the Act. - Conclusions with respect to interference, restraint, and coercion The undersigned finds that the respondent by disparaging the Unions, their leaders and members, advising employees to consult their foremen before joining, :a union, attending union meetings and urging employees not to organize ; referring to labor organizers as outsiders; questioning employees about the Unions, their meetings and the employees -interest therein; offering a wage increase to an employee as an inducement to abandon his union membership : and by stressing the undesirability of union members as employees because of such membership and concerted activities, thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act B. The disci incinzatoi i/ joy-off of Brack Clapp The complaint alleged the discriminatory lay-off of Clapp on May 18, 1942. Clapp is a clay miner and has been in the employ of the respondent or its prede- cessor for about 18 years. He was admittedly one of the respondent's "best, diggers " He testified without coiitradiction that on or about May 25, 1942, Greene told him that he was "about as good" a miner as worked for the respondent and that with respect to production for 1941, Clapp stood "second best" There is no evidence of dissatisfaction or cause for complaint concerning Clapp's ability and conduct as e miner. 19 The undersigned sustained the respondent 's objection to a question concerning Webber's alleged conveisation with Rex and what Greene had told Rex Thereupon the Board offered to prove that if Webber were permitted to testity he would testify that Rex told him that lie [Rex] had received a tepoit fioin Greene "to the effect that he had been active in Union affairs, and was a trouble maker , and that Mr. Rex told him [Webber] that on that account lie could not and would not employ him " Webber stated that was the substance of what his testimony would be The.respondent renewed its objection and was sustained Thereupon counsel for the Board offered in evidence as an exlubit the form ingmiy fiom National to the respondent containing Greene's answers quoted in part above Upon presentation of this document, the undeisigned reversed his piemions ruling, omeiiuled the'oblection , accepted the offer and admitted the offered exhibit Webber, however, was not questioned thither about his conversation with Rex. in The above findings are based on the testimony of Gi_eene, Camp and corroboi ative doennieutaiy evidence KE\'1 UCKY TENNESSEE CLAY CIGMIPANY 261 In the summer of 1941, Clapp displayed his interest in orkaiiizing activity-by attempting with others to hold a union meeting . In February 1942, Clapp was one of a committee of three chosen by the ininers to seek a wage increase'from Ureene. Although there i s evidence of the employees' continuing interest in organizing between February and May 18 , 1942, the date of the lay-off, there is no evidence of Clapp 's particular activity in connection therewith during this latter period Clapp joined the Hod Carriers on June 3, 1942, at the second meeting held at Hawkins' home. On May 18, 14 miners, including Clapp, were laid off Wilkes, who notified the miners of their lay-off, slid not indicate any reason why Clapp in particular Was among those selected, other than,that it was due to the "facts of the busi- ness,',"' On May 25, when Clapp returned to the mine"office to obtain his social security card, lie asked Greene why lie had been laid off in view of his length of service , ability as a miner , and good production record. Clapp . testified that Greene made no answer to this inquiry, whereupon Clapp asserted that because of interest aroused by organizing activity at National, Clapp had been selected for lay-off because of the respondent 's belief that he "was in favor of organized labor": possessed an "influence over a bunch of the men in the mine ," and that by thus selecting Clapp, the respondent hoped to intimidate the rest of the ein- ployees It was in response to this that Greene admittedly said: "Damn the Union." which remark has been credited above. The respondent presented documentary evidence and oral testimony to justify the lay-off of 14 miners," including Clapp, on May, 18, 1942. Late in April 1942, Royal Bennett, the loading foreman , informed Wilkes , that the respondent's stor- age bins housing Kentucky # 12 Black Ball and Kentucky Special Ball clays were fall. Therefore , on May 4 the respondent reduced its work week from 5 to 4 S-hour days. On May 11, a further reduction in the work week to 4 7 -hour days was made. This latter reduction in hours chid not suffice to reduce the over- stock in the above-mentioned clays and the respondent therefore decided on Ilay 18 to lay off 14 miners. The respondent's reason for the lay-off of the ininers is persuasive in so far as indicating a general over-all necessity to reduce its pioduction and acquire additional storage space for its clays It is not, however, as fully persuasive as grounds for the selection of Clapp As found heretofore , Clapp was one of the respondent's best niineis NNliose qualifications - placed him among the foremost in the production of clay In selecting hum for lay -off he was passed over in favor of men with less experience , length of , service and ability. This was a de- parture from what appears to have been the respondent 's rather general seniocity policy to retain older men in length of service when other work factors were of equal importance At the hearing, both Greene and Wilkes testified that those laid off on May 18, including Clapp , were selected because in Wilkes' opinion they were best suited to obtain positions in a nearby defense industry. This testimony seems hardly credible in view of the respondent's other assertion that the miners were told the lay-offs were temporary and that they would be re- 2 This finding is based on Clapp's testimony . Wilkes testified that . Clapp was laid off .ber a.ise he , 'selected the men who could better get jobs elsewheie " 21 The record iefei s to the lay-otf of 15 miners llocunientary eiidence shows the lay- off of one miner on May 7 nod of 14 on May. 18, 1942. 23In negotiations pith the Unions , which is separately cohsidered ' below in connection with the allegation that the respondent iefused to bargain , the respondent asserted that -its policy was to retain olden mew-in length of-service Niheie other factors such as abiliti and experience could be accorded equal iieiglit 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called to work. A temporary lay-off of a week is hardly consistent with the as-, serf ion that the laid-off men were selected because of their apparent ability to, secure jobs in a defense industry , where presumably shortage of labor might result in fairly permanent employinent.n , Although 11 of the miners including Clapp , were reinstated at various dates between M •iy 26 and September 22, 1942 , thus indicating that lack of storage fa- cilities prior thereto , i equired a lay-off of some miners , this nevertheless, does not fully explain the respondent 's reasons for selecting Clapp Nor does it satis- factorily dispel the evidence of discfimination found in Wilkes' anti-union state- ments on the very day the miners were laid off, heretofore referred to, particularly his remarks to Ben Johnson . credited above : "I think now I have got Al the men that will join the Union laid off" The undersigned is of the' opinion that the respondent 's production require- ments and lack of storage space served as a pretext'for the lay -off of Clapp, and finds that in selecting Clapp for lay-off the respondent was motivated largely by a desire to discipline an employee who, in its opinion appeared to be the prin- cipal union influence among the miners, thereby warning the employees to cease their interest in unions and refrain from union membership and concerted activity Under the circumstances , the unde rsigned concludes and finds that the respond- ent laid off Clapp on May 18. 1942 , not because of its production requirements, or that Clapp appeared best able to secure work elsewhere but because Greene and Wilkes, its responsible agents , were opposed to his ' leadership of the miners, his union interest, and activity By thus laying off Clapp the respondent discrim- inated in regard to his hire and tenure of employment , and thereby dis- couraged membership in the Unions and interfered with , restrained , and coerced its employees in the exercise of the iights guaranteed in Section 7 of the Act C The alleged refusal to baagain collectively - 1. The appropriate unit The complaint, alleged that "all production and maintenance employees of the Respondent at its Graves County, Kentucky- plant,,but excluding clerical and supervisory employees, constitutes a unit appropriate for the purposes of collec- tive bargaining . . The respondent in its answer stated "that it is without - knowledge as to whether" the unit alleged by the complaint is appropriate but did not offer any testimony to the contrary. , All of the respondent's production and maintenance employees are involved in a continuous integrated process from the removal of top soil and the extrac- tion of clay, to its final disintegration, packing and shipping The top soil is removed by power, the operators and laborers involved in the operation receiving hourly wages of from 48 to 92 cents per hour. The clay is extracted by miners who are paid from 25 to 61 cents per ton of clay mined. The remaining employees are hourly paid and employed in the final preparation of clay for shipment, or in the maintenance of equipment used therefor. The m ineis are under the super- vision of Roy Wilkes; employees who work in and around the disintegrators and storage sheds are under supervision of Noble Alexander, loading foreman, and construction and maintenance men receive orders from Ira Keel. In June 1942, the respondent employed approximately 105 men, excluding supervisory and clerical employees, all of whom were eligible to join the Unions. xa Presumably, it would require more than one week .to secure a position in a war indus- try•because of the personal investigation made necessary by defense and safety require- nients. KENTUCKY TENNESSEE CLAY IGOnZPANY- 263 The undersigned finds that the production and maintenance employees;.but excluding stipe'ivisors and clerical employees, constituted at all times material herein, and that they now constitute, a unit appropriate for the purposes of collective bargaining with respect to wages, rates of pay, hours of employment, .and other conditions of employment, and that the said unit insures to employees of the respondent the full benefit of their right to self-organization andto collec- tive bargaining and otherwise effectuates the policies of the Act. 2 Designation of the Unions by a majority of the employees in the appropriate unit Employees in the above unit found appropriate became interested in the Unions in the spring of 1942. On June 2, 1942, they held their first meeting attended by between 65 and 90 employees to organize the Unions. On June 3, a substantial majority of the employees affixed their signatures to- mimeographed application sheets of the Hod 'Carriers.' On June 17, 1942, the respondent's employees went out on strike and refused to return to work until the respondent recognized the Unions as the exclusive bargaining representatives. Thereupon, the re- spondent's attorney Richard F. Moll, gave to the Unions a statement in writing iecognizing-"the Hodcarriers.and Common,.Labor.,,Local No., 1214 and Interna- tional Union of Operating Engineers as the exclusive bargaining agencies for its production employees". Thereafter, down to and including October 8, 1942, the respondent and Unions engaged in numerous bargaining conferences at which the respondent's representatives accepted as a fact the Unions' statement that all but six employees belonged to the Unions. At the hearing, counsel for the respondent stated that the respondent "has never raised" the issue of the Unions' -majority and expressed the opinion that it was not in any position to raise the issue subsequent to recognition nor did it have any intention "of abating or impairing in any way the recognition" accorded the Unions on June 17, 1942. The undersigned finds that on June 17, 1942, and at all times thereafter, the Unions were the duly designated representatives of a majority of the employees in the appropriate unit, and that, by virtue of Section 9 (a) of the Act, they were the exclusive representatives of all of the employees in the .unit for the purposes of collective bargaining. 3. The alleged refusal to bargain A. The negotiations Pursuant to the Unions' request, representatives of the Unions and the respondent met in their first bargaining conference on June 22, 1942. The respondent was represented by Greene and its attorneys, J. W. McDonald and Moll; The Hod Carriers by McCloud and a committee of employees and the Engineers by Mossberger and employee representatives. The Unions submitted proposed agreements each containing provisions for a closed-shop. The re- spondent immediately opposed this provision, requesting that the question be passed for a discussion of other clauses in the agreements. McCloud, how- ever, stated : "If there ain't no closed shop, there ain't no 'contract." The 24 This finding is based upon the testimony of Board Witnesses, not disputed by the respondent, and the mimeographed applications of the Rod Carriers introduced in evidence which bear the apparently genuine signatures of 84 employees. The respondent did not "hiect to the admission of this document and offered no evidence that the signatures on the sheets were not genuine. See N. L. R. B. v Somerset Shoe Co, 111 F. (2d) 681 (C. C. A. 1). 264 'DECISIONS OF NA'T'IONAL LABOR, , RELATIONIS -BOARD union representatives stated that it would be "wasting time" to discuss other provisions unless the respondent would agree to a closed-shop.. Nevertheless, it was agreed that the respondent would formulate a wage proposal in the nature of a counteroffer and which the respondent agreed would be retroactive to June 17. The respondent also expressed its readiness to adopt the provisions in the Unions' agreement 2a pertaining to: (1) replacement of employees in case of machine break-downs; (2) an 8-hour day and 48-hour week with time and one-half for work done'beyond 8 hours in one day; (3) bi-monthly wage pay- ments; and (4) holidays. The respondent opposed the Engineers' provision providing for arbitration of employee grievances, and offered to submit a formula for settling grievances at the meeting. On June 25, after Greene had conferred with the respondent's Board of Directors, the respondent submitted two identical counterproposals, one to each of the unions. Therein the respondent' accorded exclusive recognition to each union, offered -to _increase existing wage scales 10 percent retroactive to June 22,26 accepted the Unions' proposals respecting hours, holidays, and ,in•other minor respects, rejected they closed-shop, and proposed with respect to seniority and arbitration that in the event of a lay off, retention of employees shall "lie with the company" and that disputes between the respondent and the unions or between the respondent and employees be composed through nego- tiation and discussion between the respondent, the union or the aggrieved employee, failing which, the union might at its option on 30 days' notice ter- minate the agreement. The Unions rejected the respondent's offer of a 10 percent wage increase as insufficient. and stated that unless they obtained a closed-shop they "might as well go home." The respondent would not concede a closed-shop and stated that business conditions did not permit more than a 10 percent increase in wages which it was willing to put into effect at once. The Unions also rejected the respondent's offer to increase wages 10 percent retroactive to April 1, 1942. Thus at the close of the second conference the parties were in such wide dis- agreement on issues of the closed-shop and wages that there was little or no discussion of the other differences between the parties on matters such as 22 The two agreements were substantially alike making due allowance for different employees sought to be covered under the agreements, in the case of the Engineers ; machine operators. firemen, oilers, and mechanics, and in the care of the Hod Carriers, miners, common laborers, and drivels. It seems to have been generally understood by the parties that where the respondent accepted a provision in one agreement it would accept or deal similarly with the other union on such matteis as hours, holidays, bi-monthly payments, etc. - 2° The Hod Carriers had proposed the foi- Comparable existing rates disclosed by the lowing rates : record were : Ball clay, 85¢ per 2000 lb ton 610 per 2100 lb. ton Sagger clay, 500 per 2000 Ib. ton 250 per 2100 lb ton Waste per car, 35¢ per 2000 lb ton 18¢ per car General laborers, 700 per hour , 48¢ per hour The Engineers proposed the following hourly wage rates : Crane operator, 850 per hour, 920 per hour Scoop operator, 85¢ per hour Drum hoist operator, 75¢ per hour 65¢ per hour Bulldozer operator, 75¢ per hour Punip operator, 75¢ per hour _ High lift operator, 75¢ per hour Drill operator, 75¢ per hour Welder or mechanic, 750 per hour 48¢ per hour Diesel machine, 75¢ per hour . Crusher plant, 75¢ per hour Fireman and oiler, 750 per hour KENTUCKY TENVESSEE CLAY COMPANY 265 seniority and arbitration . The outcome of this conference was reported to the employees,.who thereupon decided to strike. A picket line was thereafter estab- lished, the mine closed down , and the employees remained out on strike until' August 20, 1942 - On June 27, W C. Burrows, Kentucky Commissioner of Industrial Relations, assigned T. B. McConnell to effect settlement of the dispute at the respond- ent's mine. McConnell conferred with representatives of both the respondent and the Unions at Mayfield on July 1 and 2, 1942 Thereat , the respondent submitted its proposed seniority clause." This was rejected and the Unions stated that - nothing but a closed-shop contract was acceptable . This the re- spondent would not grant, whereupon the conference concluded. On July 10, the parties met again on call , of Mossberger of -the Engineers, the same representatives being present together with a delegation from the Central Trades and Labor Council of Paducah and R . E. Bailey of the Kentucky Conciliation Service Mossberger stated the Unions were present to see if "some kind of settlement " could be reached, and were willing to concede "some points- that is in, the contract ,- providing that , the Company would- •grant them the closed shop." Moll stated that the respondent 's position respecting the closed-shop was not changed ; that it was none of "its business" whether the employees joined a union or not; and it believed it to be improper to tell the few non-union employees that "you have got to join the union," in order to work at the mine . Thereupon , the Unions stated their willingness to accept the open-shop clause of the respondent 's counterproposal provided the respond- ent would agree to hire all new employees through the Union and to give the Unions 48 hours in which to supply the new employees, failing in which, the respondent was free to hire anyone it chose. Moll asserted this proposal was "but a variation of the closed shop" and there was no point in signing a contract which the respondent believed to be "open shop and the union con- siders closed shop." The Unions insisted that the closed -shop was necessary to protect their membership' and prevent its dilution through the hiring of new non-union employees. Discussion thereupon, passed to another issue in conflict , that of an acceptable seniority clause. The respondent asserted its willingness to accept a provision which was consistent with its claimed policy, that where all factors such as ability and knowledge were equal , the respondent would recognize length of service as the determining factor in selection of men for lay off. Bailey ex- pressed , the opinion that such provision permitted the respondent to determine lay-offs without consultation with the Unions and suggested that the seniority clause provide for departmental seniority ' This suggestion was unacceptable to the respondent , it contending in the case of the miners , for example, that the oldest men in point of service were frequently the least efficient miners and in the final analysis for the respondent to manage its affairs successfully and efficiently it would have to keep "the best workers on the job." Differences over wages and arbitration did not play any real part in the discussion at the conference which ended with the parties still in disagreement on the issues of a closed-shop and seniority. "The proposed seniority clause was in the following language: "In- cases of increase or decrease of forces, discharges, lay-offs, the Company, in its discretion, will give due regard to such factors as length of service, knowledge, ability, physical fitness and usefulness to the Company If in the opinion of the Company the other factors are equal, length of service shall govern " "This would bieak down the iespondent's operations into three major work classifica- tions, i. e, miners, common laborers working "on top"'in soil removal, and mechanics and maintenance employees. - 266 DECISIONS OF NATIONAL LABOR RELATION S BOARD. The parties returned to 'conference again on July 28 at the request of the Unions At the outset the -Unions- amended, their original closed-shop clause .to now provide : "In the case where new employees are required the Company shall have the right to select such employees from this vicinity, provided : That the said new employee shall within ten (10) days become a member of said , local ,,unions. The company shall consult the Steward on employing of new employees" Previously the Unions had agreed to accept the respondent's open-shop proposal provided however that all hiring of new employees be done through the Unions. Moreover, the Unions insisted that non-union members presently employed would have to join the Unions. All parties reached sub- stantial agreement on the Unions' proposals pertaining to: (1) replacement of employees in case of machine breakdowns; (2) length of work day, work week, and overtime pay; (3) bi-monthly payment of wages; (4) observance of national holidays and Sundays and payment of overtime for work performed on those days; and (5) employment of individuals in case of emergencies. Then the Unions offered the following new seniority clause. "Departmental seniority will be-observed wherever possible and in case of reduction of force the last man to be employed shall be the. first to be laid off " The respondent again asserted that its policy was to follow seniority where it was profitable to'do so.; that it had retained "old men"' but it could not accept this "rigid rule." The parties thereupon turned to a discussion of the arbitration clause contained in the original'agreement submitted by the Engineers. The respondent urged its criginal objection to the clause, that it could not permit disputes that arose ,over the terms and conditions of a contract to be decided "by a third party, or stranger you might say to the transaction." Before the conference closed the Unions indicated their willingness to "concede some on the wages" provided greement could be reached on the other issues in controversy but the meeting ,adjourned with the parties still in disagreement over a closed-shop, seniority, a grievance or arbitration procedure and wages, and with the charge leveled by the Unions that the respondent had failed to bargain and to make any concessions. In an effort to settle the strike and reach agreement on a contract the parties met on August 1, with T. B McConnell of the Kentucky Industrial Relations Commission and J. G. Walsh representing the United States Concilial ion Service. Moll stated that the principal issue in controversy was the closed-shop to which the respondent could not agree. Walsh asked if the respondent would accept a proposal providing for arbitration or establishing a grievance procedure. The respondent's position was, substantially as in previous conferences, that it and the Unions were in a better position to adjust disputes than an "outsider," 'and if the parties could not agree the Unions could terminate the contract thus restoring their right•to strike. Walsh attempted svithout successrto persuade the respondent,,,, that it was its duty to reach an agreement that would avoid a strike, and that arbitration was a just and reasonable method of settling disputes. The Unions now expressed their willingness to accept "the open shop proposi- tion" in the respondent's counterproposal, provided the respondent would accept the Unions' departmental seniority zs and arbitration clauses The respondent stated that the two clauses submitted on seniority and arbitration were the same as previously 'discussed and rejected and the respondent's position remained the same The respondent reoffered its seniority proposal previously submitted on r "The proposed clause read : "Departmental seniority shall pi evail and ability and ex- perience shall be taken into consideration in promotion of employees In the event of reduction in forces the last man employed in the department shall be the first laid off" The Unions agreed without discussion that any contract signed would contain a no-strike Manse. KENTUCKY TEN1NESSEE CLAY COMPANY 267 July 230 Moll admitted that it left all discretion respecting seniority in the ,respondent's hands but asserted that this was as it should be. This was unac- ceptable to the Unions and the deadlock on seniority remained. The union repre- sentatives stated that they had nothing else to submit or suggest by way of seniority and arbitration clauses and yet protect their interests. Moll suggested that a change' in atmosphere brought about by resumption of operations 'at the mine might be conducive to further negotiations but the Unions were unwilling to abandon the strike without a contract. The respondent, however, stated that it would "continue to bargain . . , and try to negotiate a contract" if the men returned to work The Unions did not insist on the exact language of their proposed seniority or arbitration clauses but asked that their concession with respect to the closed-shop "should be accompanied with a concession on the part of the Company on the issue of seniority and grievance procedure." The respondent asserted it was a "waste of time to meet and rehash the same old issues" and expressed doubt that a panel of three conciliators, as suggested by Walsh, could accomplish anything. However,, all."parties accepted- •Walsh's panelu,suggestion. and the conference concluded 81 In compliance with Dr. Steelman's request the parties met on the morning of September 3, 1942, before a panel of the United States Conciliation Service. The union representatives stated the parties were still in disagreement over clauses respecting a closed-shop or maintenance of membership, wages, arbitration, and seniority. Mossberger renewed the wage demands of the Engineers 38 McCloud, for the Hod Carriers, cut its demands,5 cents per ton' for clay mined but re- peated the previous demand for 70 cents an hour for common laborers. The Unions renewed their offer to abandon the closed-shop provided the respondent would accept a satisfactory seniority and arbitration clause. The respondent withdrew its previous offer of a 10 percent increase in wages but this appears to have been done in order to permit the respondent to incoiporate, in a single written document all of its previous offers and concessions. At the afternoon session the respondent renewed its offer to grant the seniority clause presented on, July 2 3} This the Unions again rejected. The respondent informed the panel that the Union's proposed arbitration clause was rejected and declined to make any counteroffer on this subject or to reveal to the panel its financial statements but agreed to furnish a schedule of wages paid employees at its other mines. The Unions undertook to return to the next meeting with data showing wages paid employees under contract with the Unions in the other clay mines or comparable industries. The final conferences in the long history of negotiation were held before another panel 'of conciliators on October 7 and 8, 1942. The respondent submitted its second proposed written agreement which provided for : union recognition ; a 30 See footnote 27, supra. 31 On August 12, 1942 , the parties met again in the offices of the respondent's attorneys to arrange for the loading of several cars of clay to be shipped to the respondent's customers On August 17, Dr. J. R Steelman, Director of the United States Conciliation Service, wired all parties urging that work be resumed ininiediately pending settlement of the dispute and inviting the parties to meet before a special conciliation panel on September 3 in Mayfield. On August 19, the parties conferred to arrange for the reopening of the plant. As a result s"of<this'conterence•tlie,enrployeesveturned=to'work and=the mine 'reopened'-August 20, 1942. It would appear that all striking employees were reinstated. 32 See footnote 26, supra. 1-1 See footnote 26, supra It is not clear whether the reduction pertained to a ton of 2,000 pounds or 2,100 pounds , the respondent's payments being based on a ton of 2,100, pounds. - 34 See footnote 27, supra. 268 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD 10 percent wage increase subject to the approval of the National War Labor Board effective as of the pay week next succeeding the execution of the contract ; 83 an 8-hour, day and 40-hour week with overtime substantially as sought by the Unions ; a holiday provision identical with the Unions' proposals ; a seniority clause ; and a grievance clause which gave the Unions the right to terminate the contract in the event agreement was not reached but which did not provide for. arbitration. The Unions prepared a counterproposal in the form of amendments to the respondent's proposed written agreement, which struck the open-shop provision of the respondent's agreement ; added a provision requiring all non- union employees and all those to be hired to become union members in 10 days ; substituted various wage rates some higher and others lower than rates previously submitted by the Unions ; added a straight departmental seniority clause;, an arbitration clause; made wage increases retroactive to June 17 and sought vacations with pay for employees of more than one year's service. On October 8 the respondent rejected all of the Union's amendments to the respondent's proposed agreement and the Unions submitted their "rock-bottom" offer which demanded wage increases retroactive to June 17, 19,12; made some. concessions on wage rates ; S0 demanded a maintenance of membership clause ; a voluntary check-off of union dues :; seniority , arbritration, and agreed to the withdrawal of pending charges. The Unions' "rock-bottom" offer was not ac- ceptable and the respondent proposed an immediate 10 percent wage increase to be effective regardless of whether the parties agreed upon an entire contract. The Unions requested that the hearing be adjourned until this latter offer could. be,submitted to their members . On October 30, the respondent was informed that both Unions had rejected the respondent 's offer to increase wages by 10 percent. This ended ,all negotiations between the parties B. Concluding, findings _ The findings made above with re:.pect to the negotiations between the parties are based upon verbatim 'transcripts of bargaining conferences and 'a stipula- tion entered into between counsel for the respondent and the Board. Thus, no conflict of fact is presented and the sole question is therefore one of law- ° The respondent submitted to the panel a schedule of wages paid at its three other mines which indicated that in trio of the mines common laborers received 53 cents an hour, 3 cents more than at Mayfield but substantially less than the 70 cents an hour that the Unions were demanding. ' ° Proposed October 8 Irod Carriers Proposed June 22: Hod Carriers 70i' per ton Ball clay 850 ton 400 per ton Sagger clay 500 ton - 300 per ton waste per car 350 Laborers 550 per hour Laborers 700 per hour Engineers Engineers 850 per hour Crane operator 850 per hour .850 " " Scoop 850 750 " Hoist " 750 750 " Bulldozer " 750 750 " Welder or Mechanic 750 " " 700 High lift operator 750 " " 700 Diesel oper ator 750 " " 730 " Pump " 750 " u fi00 " Crusherplant " 750 Drill " 750 " Firemen & Oilers 650 " " KENTUCKY TE\iNESSEE CLAY ICOIIIPANY 269, whether the respondent violated its statutory duty to bargain collectively with - the Unions. While it is true that the respondent accorded the Unions exclusive recogni- tion following a strike called by the union members to force this result, this recognition was never withdrawn and the respondent met thereafter whenever requested with the Unions. It is abundantly clear that the Unions had ample, opportunity to formulate and present their demands and argue in support of them. The respondent likewise answered fully at every opportunity , the, Unions' demands and presented its own reasons for rejecting the Unions ' proposals Moreover, the respondent in its two written counteroffers indicated those terms and provisions of the Unions ' agreements upon which it would enter into a written collective bargaining contract , as well as its own substitutions for the Unions' demands on seniority and arbitration. The Board and the courts have on frequent occasion stated that the duty imposed by the Act is not' limited to formal recognition of a union, participa- tion in bargaining conferences , and the expressed willingness to sign an agree went when reached. The parties must make a sincere effort to explore the total situation , adjust differences, and reach a common understanding, but the employer need not capitulate to the demands made of him.' The record does not indicate a refusal on the respondent 's part to find a basis for common understanding . At the very outset of negotiations , the Unions' demand for a closed-shop atose as a barrier to agreement . The Unions' with- drawal of this demand was as stated by their attorney , a "horse trade" to ob- tain concessions from the respondent on seniority and arbitration The respond- ent would grant no concession on arbitration although it did ofter a grievance procedure which nn as unacceptable to the Unions . Likewise, the respondents' proposed seniority clause, which in its judgment it considered fair to all the employees and permitted efficient mine operation was unacceptable. The Unions' withdrawal of its closed-shop demand was never a final and forthright concession . Except for the "rock -bottom" demand of a maintenance of union membership clause submitted on October 8, the issue of a closed-shop always arose at the various conferences . As late as October 7. the Unions were demanding that all non-union employees and those to be hired must join the Unions as a condition of employmeint. Finally, on October 8,' a maintenance of union membership clause was demanded together with a voluntary check-off of union dues , which latter issue was injected for the first time. The wage question at no time appeared as an issue in any way determina- tive of the final course of negotiations . During all the negotiations matters stood at an impasse on questions wholly unrelated to the issue of wages. Throughout , the parties were in substantial disagreement only as to issues aris- ing in connection with the Unions ' demands for a closed -shop or some sort of union maintenance, seniority, and arbitration . On these issues, basic to success- ful and final agreement, the parties were hopelessly deadlocked and in disagnee- went The undersigned is of the opinion that but for the unreconcilable position taken in regard to the closed-shop ; seniority, and arbitration , the negotiations would have resulted in an agreement satisfactory to all the parties - The undersigned in reaching the above conclusions has considered the ex- pressions of antipathy of Greene towards the Unions during their organizing period. The record is singularly free , however, of any evidence that' this antipathy hampered or impeded the bargaining coiferencds , prolonged the strike, n Art Metal Construction Co v N. T,. R. B . 110 F . (2d) 148 (C C. A 2) ; N L R. B. V. Highland Park llJfq. Co , 110 F ( 2d) 032 (C. C. A 4) , N. L R B. v Express Publishing Co„ Ill F ( 2d) 588 (C. C. A 5) 270 D'EOISIONS OF NATIONAL LABOR, RELATIONS BOARD - f -or,interfered in any way,with the-abandonment 6f-the strike and the empla-Vees' return to work. Indeed, as mentioned above, after settlement of the strike, negotiations continued thereafter for almost 2 months In view of the foregoing and upon the entire record herein the undersigned. finds that the respondent did not refuse to bargain collectively with the Unions within the meaning of the Act "s IV. THE EFFFCT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in-Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and_ obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor- practices, it will be recommended that it cease and desist therefrom and take- certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the status quo existing prior to the commission of the unfair labor practices. The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Brack Clapp because of his union interests and concerted activity To effectuate the policies of the Act, the undersigned will recommend that the respondent make himwhole for any loss of pay lie has suffered by reason of his lay-off on May 18, 1942 , by payment to him of a sum of money equal to that amount which lie would normally have earned as- wages from the date of his lay-off on May 18, 1942 to May 26, 1942, the date of his reinstatement, less his net earnings" during said period.* The undersigned has found above that the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by disparaging the Unions , their , leaders ' acid members, by attending union meetings and urging the employees not to organize , by question- ing employees about the Unions, ' by offering ' a wage increase to an employee to induce his abandonment of union membership, and in general by stressing the, undesirability of organizing the Unions or becoming members thereof. - Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : I CONCLUSIONS OF LAW 1 International Union Operating Engineers Local 181, and International Hod Carriers, Building and Common Laborers Union of America Local 1214, both affiliated with the American Federation' of Labor. 'are labor organizations, within the meaning of Section 2 (5) of the Act. se See Matter of Montgomery Waid & Co., Incorporated and United Mail Older, Ware- house and Retail Employees Union , Local ?0 (C. I. 0.), 39 N L It B. 229 39 By "net earnings ". is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection`with`obtaining w ork and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber- and Sawmill Workers Union, Local 1590, 8 N . L. R B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U S. T. KENTUCKY TE-I iNESSEE CLAY COMPANY 271 2 By discriminating in regard to the hire and tenure of employment of Brack Clapp and thereby discouraging membership in International Union Operating, Engineers, Lo- cal 181, and International Hod Carriers, Buildirig,and Common Laborers Union of America Local 1214, both affiliated with the Ameri- can Federation of tabor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) 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 unfair labor practices are unfair labor practices affecting coin meice, within the meaning of Section 2 (6) and (7) of the Act. ,5 At all times from June 17, 1942, to October 1942, International Union Operating Engineers Local 181, and International Hod Carriers, Building and Common Laborers Union of America Local 1214, both affiliated with the Ameri- can Federation of Labor, were the exclusive representatives of all production and maintenance employees of the respondent at Mayfield, Kentucky, excluding supervisors and clerical employees, for the purposes of collective bargaining, nn ithin the meaning of Section 9 (a) of the Act. 6 , The respondent has not refused to bargain collectively with the Unions and has not engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. , RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondent, Kentucky Tennessee Clay Com- pany, a corporation, Mayfield, Kentucky, and its officers, agents, successors, and assigns shall: - 1 Cease and desist from : (a) Discouraging membership in International Union Operating Engineers, Local 151. and International Hod Carriers, Building and Common Laborers Union of America Local 1214, both affiliated with the American Federation of Labor, or in any other- labor o ganization of its employees, or in any other manner discriminating i in regard to their hire and tenure of employment or anv term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing its em- ployees 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 hargaining, or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2 Take the following affirmative action which the undersigned i finds will effectuate the policies of the Act : ,(a) Make whole Brack Clapp, for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from May 18, 1942 to May 20, 1942, less his net earnings40 during said period; (b) Post immediately in conspicuous places at its mine at Mayfield, Kentucky, 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 40 See footnote 39, sups or 272 DECISIONS OF NATIONAL LABOR REL'ATIO'NS BOARD engage in the conduct from which it is recommended that it cease and desist in,paragraph 1 (a)'and (b) of these recommendations; (2) that the respondent will take the affirmative aclion set forth in paragraph '2 (a) of these recommen- dations ; (3) that the respondent's employees are free to become or remain members of International Union Operating Engineers, Local 181, and Interna- tional Hod Carriers, Building and Common Laborers Union of America, Local 1214, both affiliated with the American Federation of Labor, and that the re- spondent will not discriminate against any employee because of membership or activity in those or any other labor organizations; (c) Notify the Regional Director for the Eleventh Region in writing within ten (10) days from the receipt of this Intermediate Report of what steps the respondent has taken to- comply herewith. It'Is further recommended that unless on or before ten (10) days from the ieceiptof this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent,to take the action aforesaid. ' It is further recommended that the complaint be dismissed in so far as it alleges that the respondent has engaged in or is engaging in unfair labor prac- tices by its refusal to bargain with the International Union Operating Engineers. Local 181, and International Hod Carriers, Building and Common Laborers Union of America, Local 1214, both affiliated with the American Federation of Labor. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board=Series 2-as amended, effective October 28, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant'to Section 32 of Article II of said Rules and Regulations , file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the Record or proceeding (including rulings upon all motions or objections) as he relies upon. together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue "orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Dated December 24, 1942 MosTIMER RIEMER, Trial Exantianer.