Carnegie-Illinois Steel Corp.

I In the Matter Of CARNEGIE-ILLINOIS STEEL CORPORATION (GARY STEEL " WORKS ) and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER 44 Cases Nos. 13-C-2799 and 13-C-3048.-Decided June 30,1949 DECISION AND ORDER On March 15, 1948, Trial Examiner Charles E. Persons issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Carnegie-Illinois Steel Corporation (Gary Steel Works), Gary, Indiana, had engaged and was engaging in certain unfair labor practices,', and recommending, that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermedi- ate "Report attached hereto. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting brief.2 .The Board has reviewed the rulings made by. the, Trial. Examiner and finds that no prejudicial error was committed. The rulings are hereby "affirmed. The Board has considered the Intermediate Report, the exceptions and briefs filed herein, and the entire record in the case. To the extent that they are consistent with this Decision and Order, the Board -adopts the findings, conclusions, and recommendations of the Trial Examiner.3 The Trial Examiner found that the Respondent discriminatorily discharged or suspended 89 of its supervisory employees, and dis- criminatorily demoted another, Rudolph Mihelic, thereby violating Section 8 (3) and 8 (1) of the Act. The Examiner recommended rein- statement of these employees with back pay. We do not agree with these findings or recommendations, except as to Mihelic. _ • 1. The Examiner found that a few of the 89 supervisors did not report for work on January 20, 1946, and that the rest of them, singly 'Those provisions of Sections 8 (1) and 8 ( 3) of the National Labor Relations Act which the Trial Examiner found were violated are continued , as amended , in Sections 8 (a) (1) and 8 (a) (3) of the amended Act. 2 Briefs and exceptions were filed also by the General Counsel and counsel for the dis- charged employees. '' The Respondent's request for oral argument before the Board is denied, as the issues are fully set forth in the record and briefs filed with the Board. 84 N. L. R. B., No. 99. 851 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or in groups, left their employment in the Respondent's Gary Steel Works between January 20 and February 2, 1946, during a strike of rank-and-file employees called by United Steelworkers of America. In most cases these supervisors were instructed by the Respondent to work during the Steelworkers' strike at. nonsupervisory jobs, but in every case, however, the purpose of the work assignment was solely to prevent serious damage to plant equipment during the Steelworkers' strike'and. to maintain essential, services to the city. -of: Gary. - Apart from this, the Respondent made no effort during the rank-and-file strike to continue its normal production operations. Assuming, with- out deciding, that in all cases the{supervisors, in refusing to work, en- gaged, as the Examiner found, inconcerted activities, we do not agree that on the facts in this case such activities are protected by the Act. 'The' Examiner found that in failing-to report, or in leaving their assignments, the supervisors were motivated by one or more of the fol- lowing considerations : ' (a)' Adherence to the strike policy statement of 'Chapter 44 of Fore- man's Association of America, to which virtually all the discharged supervisors belonged. (This policy statement announced that the members of Chapter 44 'would not "scap'-' by performing nonsuper- visory work- during the Steelworkers' strike, and that the Chapter was opposed to staying in the plant 24 hours a day during that strike.) '(b) Dissatisfaction with living conditions in the plant. (c)' Disinclination, for'personal or family reasons, to stay in the plant 24 hours a day. We'find that,` whatever the -reason for their action, under the special circumstances of1hi's case, the-supervisors' failure to report for, or re- main at, work was such a serious breach of their duty-to the Respond- ent as to remove them from the'protection of the Act. - The supervisors undeniably had' a right to 'strike or to quit - their work for any reason whatsoever. 'However, in determining whether the supervisors', actions come "within the `protection- of the Act, the Board is not free to disregard the impact of their conduct on the in- terests of their' employer. It is well settled 'that the Act does not pro- tect concerted activities of employees which violate property 4 or con- tract 5 rights of the employer,, or which are designed to compel illegal conduct by him," or which are otherwise, contrary to law.7 These cases 4 N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240 ; N. L. R. B. v. Clinchfleld Coal Corp., 145 F. ,(2d) 66 (C. A.,4). • - ON. L. R. B. v. Sands Mfg. Co., 306 U. S. 332; Hazel-Atlas Glass Co. v . N. L. R. B., 126 F. (2d) 598 (C. A;,4) ;,United Biscuit -Co. v. N. L.-R. B., 128 K. (2d) 771 (C. A. 7) ; Matter of Scullin Steel Co., 65, N., L. R: B. 1294; Matter of Fafnir Bearing Company, 73 N. L. R. B. 1008; Matter of National Electrsc Products Corporation, 80 N. L. R. B. 995. 6 Matter of American News Company, Inc., 55 N L R B. 1302. - Southern S. S. Co. v. N. L. R B., 316 U. S. 31 ; N. L. R. B. v. Perfect Circle Co., 162 F. (2d) 556 (C. A. 7) ; N. L. R. B. v. Indiana Desk Co., 149 F. (2d) 987 (C. A. 7). CARNEGIE-ILLINOIS STEEL CORPORATION 853 establish that the reinstatement rights of employees discharged for concerted activities cannot be considered in a vacuum, but must be de- termined in the context of their legal duties and responsibilities. I Accordingly, in the case at bar, we believe the complainants owed a duty to the Respondent, inherent in their position as supervisors, to comply with all reasonable instructions designed to protect the Re- spondent's physical plant from imminent damage or destruction. Certainly, if the supervisors had been discharged for wilfully or neg- ligently damaging the Respondent's blast furnaces or coke ovens, we would have no hesitation in finding that such discharge was for good cause. It would have been no defense that such action was taken in concert with other supervisors or in furtherance of a strike by super- visors or other employees. The case is no different in principle if, as in the case at bar, the supervisors, knowing that the furnaces and ovens, unless properly banked or closed -down, would suffer serious iiamage,8 deliberately and concertedly, and contrary to their employ- er's instructions, refuse to cooperate with other supervisors in the work necessary to prevent such damage. Steelworkers itself-recog- nized the exigency of the situation and the need for "standby" work during the rank-and-file strike, agreeing to permit such work to be done, provided that it was done'only by members of Steelworkers. And the overwhelming majority of the supervisors, both members and nonmembers of the Association, remained at their posts throughout Steelworkers' strike .9 It is true that in this case, insofar as appears from the record, the Respondent was able to avoid damage to its plant, due, presumably, to the efforts of those supervisors who remained at work. However, that fact does not, in our opinion, mitigate the seri- ousness of the breach of discharged supervisors in this case. In the Southern Steamship case,. supra, in denying reinstatement to seamen who had refused work assignments on a vessel moored to a dock, the Supreme Court referred to the hazards from fire and colli- sion-to which the strike exposed the vessel, stating: It is not enough to say that, in the case before us, the strikers did not prevent these precautions [i. e., against fire,' etc.] from being taken ; only the, efforts of others averted the dangers to which they opened the door. (P:'46.) 8 As to the possible extent of such damage , the record indicates that it would have taken a year to repair a single battery of coke ovens and an expenditure of 30, million dollars to restore the entire coke plant to operation ; that, if the Respondent 's , 10, operating blast furnaces had been suddenly abandoned , the repair of the resulting damage might have cost 40 million dollars. 9 The record shows that of approximately 1400 supervisors in, the Respondent's employ at the , time, of Steelworkers' strike, about 900 of whom were , members of the Association, only about 100 failed to report for, or remain , at, work. , 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Similarly, in the case at bar, the supervisors' conduct may not be excused because the efforts of others averted the dangers to which they opened the door. In Matter of Greater New York Broadcasting. Corporation,- , in denying reinstatement to a chief engineer who had failed to report for work during a strike, after leading his employer to believe that he would do so, the .Board stressed the fact that, in view of the chief engineer's special supervisory functions, the employer was entitled to have in his position a person of "complete reliability." So, in the instant case, in view of the peculiar susceptibility of the Respondent's plant to crippling damage from an abrupt shut-down of its operations, the Respondent was entitled to have in supervisory, positions persons on whom it could depend for emergency duty to forestall destruction of key plant facilities, and it was not unlawful for it to discharge those of its supervisors who, by walking out or failing to report during the rank-and-file strike, demonstrated their lack of dependability in an emergency. The rule of the Greater New York Broadcasting case is particularly applicable to those of the supervisors herein, who, like the chief engineer in that case, led their employer to believe by promises or conduct that they would stay in the plant throughout the rank-and-file strike." For all these reasons, we find that the 89 supervisors were not unlaw- fully discharged or suspended. Our finding is not to be construed as a holding that any action whatsoever contrary to his employer's eco- nomic interests, through a strike or otherwise, will cause a supervisor to forfeit the protection of the.Act prior to amendment. - Our decision in the case at bar is to be construed as confined to the particular facts of the supervisors' conduct involved therein, which conduct consti- tuted a threat to the Respondent's physical plant. 2. Rudolph Mihelic. Mihelic, a supervisor, was excused by the, Respondent from duty during Steelworkers' strike. Several weeks after the end of the strike, Mihelic joined with a ,number of, rank- and-file employees in petitioning Respondent to reconsider the sus- 30 48 N L. R B. 718 , 720. - "In the Greater New York Broadcasting case the Board said , in part : . . . although Study at first led Kay [a management representative ] to believe that he would assist in returning the station to the air , he subsequently refused to do so. thereby engaging in deceptive conduct inconsistent with his duty to respondent as chief - engineer, So, in the *present case,- ive find that those of the discharged supervisors who by their promises 'oi' conduct led tlie• Employer to believe ` that they would carry out their assign' ments during the strike , and failed to do so , engaged in deceptive conduct inconsistent with their duty to the Employer as supervisors We do not, as our colleagues seem to suggest, regard the supervisors ' promises or'conduct as equivalent to a no-strike contract, but cite such promises and` conduct only for the "purpose of showing the applicability of the Greater New York Broadcasting case to 'this case. ' 0 CARNEGIE-ILLINOIS STEEL CORPORATION 855 pension of 20 supervisors. For this action Mihelic was reduced in rank and pay on or about March 22, 1946. In protesting, in concert with other employees, the suspension, how- ever justifiable, of his fellow supervisors, Mihelic was engaging in concerted activities protected by the Act.'- Accordingly, we agree with the Trial Examiner's finding that Mihelic's demotion was unlaw- ful, and we will order that he be reinstated to his former position and be made whole for the loss of pay resulting from his demotion. THE REMEDY The Respondent contends that, as the unfair labor practices herein involve only supervisors who are no longer protected by the amended Act, the Board lacks jurisdiction to issue any remedial order in the case at bar, and, alternatively, that any such order would not effec- tuate the policies of the Act. Similar contentions were rejected by the Board in Matter of Republic Steel Corporation',3 and we are bound by that decision. However, in that case, we held that it would contravene the policy of the amended Act to issue an order requiring the Respondent in that case to cease and desist from engaging in the future in unfair labor practices with respect to its supervisors. Such an order, it was pointed out, would have effect of enjoining conduct which was no longer unlawful. For this reason, we will not include in our order herein the "cease-and-desist" provisions usually included in our re- medial orders in cases of discrimination against nonsupervisory employees. ORDER Upon the entire record in the case, and pursuant to Section 10 (c)" of the National Labor Relations Act,-as amended, the National Labor Relations Board hereby orders that the Respondent, Carnegie-Illinois Steel Corporation, Gary, Indiana, its officers, agents, successors, and assigns, shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Restore Rudolph Mihelic to the position from which he was discriminatorily demoted or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Mihelic whole for any loss of pay resulting from the Respondent's discriminatory action. "Cf. Sax d/b/a Container Mfg. Co.'v. N L. R B., 171 F. 2d 769 (C. A. 7). See Matter of Dorsey Trailers, Inc, 80 N L. R. B. 478 18 77 N. L. R. B. 1107. 856 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that in all other respects the complaint herein be, and it hereby is, dismissed. CHAIRMAN HERzOG and MEMBER HOUSTON dissenting : The 89 supervisors were admittedly "employees" under the Wagner Act, and were discharged in 1946, before that statute was 'amended, because they engaged in concerted -activities for their mutual aid or protection.14 That such activity by supervisors, absent special cir- cumstances, was' protected by Section '7 of the Wagner Act, under which' this case arose, is established in numerous Board and Court decisions.ls Our colleagues do not question the Board's power to reinstate these foremen 'today -because of the 1947 amendments. 'The 'issue is only whether the circumstances existing here are so special as to warrant a ,denial 'of the Act's protection for other rea- sons. The majority withholds that protection primarily because of its view- that the supervisors "owed a duty . . . to protect the Re- spondent's physical plant from imminent damage," and because their conduct "constituted a threat to the Respondent's physical plant." They apparently overlook the fact that the so-called threat to, the physical plant was at least as much due to the Respondent's prior refusal to accept the Steelworkers' offer to supply union members to man the essential parts of the plant as it was to the supervisors here in question. In our view, none of these considerations distinguishes this case from numerous decisions in which the Board and the Courts pro- tected the rights guaranteed employees, even though the exercise of those rights threatened the employer's plant with "crippling damage from an abrupt shut-down." This Board has not hitherto limited supervisors in exercising tradi- tional rights as employees to instances where their employer' s opera- tions would not be seriously affected. A threat to the Respondent's physical ,plant is a possible"concomitant of any concerted "quitting of work." 18 It is` 'no more analogous to "wilfully or negligently dam- 16 At the end of their shifts, 'the locked-in supervisory employees , in protest against. their living conditions and the nonsupervisory tasks assigned them left the factory with the 'expectation and intention of returning to their regular jobs when the rank-and-file strike was settled. 16 See, for example, N. L. it. B. v. Fruehauf Trailer Company , 301 U. S. 49, 55, enfg. 1,N. L. R. B.,68,'76 (joining and'a@sisting a;,labor organization ) ; N. L. it. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 346-7, enfg.' 1*.N. L. R. B. 201, 222-225 (refusal to work during strike by rank-and -file union to which the supervisor belonged). 16•Despite foreseeable detriment to the employer, "mere quitting of work" on the part of any group of employees was "recognized as lawful ." N. L. R. B. v. Fansteel Metallur- gical Corp., 306 U. S. 240, at 256. See also N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, at 43. - CARNEGIE-ILLINOIS STEEL CORPORATION 857, aging"- property in the case of supervisors than in the case of rank- and-file employees whose right to strike is similarly circumscribed.17 We are not here confronted with a situation in which supervisors were asked to perform tasks during a strike for which they were hired or were peculiarly qualified. The special obligations of super- visors under such conditions are not applicable where, as here, the supervisors were suddenly asked to perform tasks of the striking rank-and-file employees rather than supervisors' own duties. Matter of Greater New York Broadcasting Corp., 48 N. L. R. B. 718, relied on by the majority, is distinguishable on this ground. There the chief engineer was asked to perform work consistent with .that which he had agreed to do: to supervise strikebreakers, and not, as here, to perform nonsupervisory strikebreaking work."' If the majority's decision meant that supervisors must do' supervisory work during a rank-and-file strike, then we might well agree. There is no such limitation however in its decision and we cannot agree that, because some possibility of damage to the plant exists, these supervisors must be held to an obligation more rigorous than ever before imposed 19 INTERMEDIATE REPORT Mr. Robert E. Ackerberg, for the Board. Knapp, Cushing, Hershberger and Stevenson, by Messrs. Paul R. Conaghan, F. T. Brandt, William Fullager and George Venca, of Chicago, Ill., for the Respondent. Mr. Fred L. Williams and Mr. Hillary E. Jones, of Gary, Ind., for the Association. Mr. Arthur J. Goldberg , of Chicago, Ill., for the Complainants. STATEMENT OF THE CASE On a first amended charge duly filed on October 8, 1946, in Case No. 13-C-2799 by the Foreman's Association of America, Chapter 44, herein called the Asso- ciation, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region, issued its complaint on October 11, 1946, against Carnegie-Illinois Steel Corporation (Gary Steel Works), herein called the- Respondent. On October 18, 1946, the Association filed a further charge against the Respondent in Case No. 13-C-3048. The Board on October 17, 1946, consolidated these cases and the new allegations became Section 8 (a) 'IN. L. R. B. v Fansteel Metallurgical Corp, supra, and Southern Steamshep Co. v. N. L. R. B., 316 U. S 31 (involving an act by rank-and-file constituting both a Federal crime and a breach of the maritime articles). 18 It may be also noted that, in effect, the majority decision gives the employer the benefit of a no-strike contract, although these foremen enjoyed no collective agreement whatever Yet this Board has recently held that an express waiver of the right to strike is required to remove strikers from the protection of the Act. Matter of Dorsey Trailers, Inc., 80 N. L. R. B. 478. 1 1 ' - 19 See Matter of Soss Manufacturing Company, 56 N.. L. R. B..348, 353, cited with approval in Packard Motor Car Co. v. N. L. R. B., 330 U. S. 485. 858 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD of the complaint previously issued.' The amended complaint alleges that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and of the amended complaint, the charges upon which they- were based, together with notice of hearing thereon were duly served on the Respondent and the Association. With respect to the unfair labor practices the amended complaint alleges in substance that the Respondent (1) on or about February 15, 1946, suspended 97 named supervisors,2 herein collectively referred to as the complainants, and discharged them on or about March 18, 1946, with certain noted exceptions, and thereafter failed and refused to reinstate them because these supervisors: a. Engaged in concerted activities for their mutual aid and protection against unsafe, unusual, and unwholesome living and working conditions in the Gary Steel Works'; b. Engaged in concerted activities for their mutual aid and protection against intolerable personal and family sacrifices and distress caused by said living and working conditions ; c. Engaged in concerted activities for their mutual aid and protection by their maintaining a neutral position in that they refused to work as strikebreakers; d. Joined and assisted Chapter 44 and engaged in concerted activities on its behalf, and e. Refused to engage in unneutral activites against the, United Steel- workers of America, CIO. . . . and its subordinate Local No. 1014 by their refusal to act as strikebreakers (2) On or about March 22, 1946, demoted Rudolph Mihelic, a supervisory em- ployee, to a position carrying less pay and authority and thereafter failed and refused to reinstate him because Mihelic : a. Signed a petition dated March 12, 1946, requesting Respondent -to reinstate suspended foremen ; b. Engaged in concerted activities with other employees for their mutual aid and protection by signing the said petition ; c. Joined and assisted Chapter 44. (3) By these acts the Respondent discriminated in regard to the hire and tenure of employment of the supervisors listed in Appendix A and of Mihelic. (4) Discouraged concerted activities and membership in Chapter 44 and in Steelworkers and its Local 1014. - ( 5) By these acts interfered with, restrained; and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Ong October 29, 1946, at the hearing, the Respondent duly filed its answer in which it admits that certain facts pertaining to its corporate organization as 'The complaint was further amended at the hearing without objection , to correct errors disclosed in the course of the hearing , as follows : to read that the United States Steel Corporation was incorporated under the laws of the State of New Jersey instead of Delaware ; and in paragraph 7: changing the date of Respondent 's notification to Local 1014 from "January 19, 1946 in the evening" to "January 20, 1946 in the morning " ; adding the qualifying phrase "although most of them were requested by respondent to do so" to the statement that the complainants refused "to perform strike breaking work"; and by the substitution of the phrase "the presence of" for "physical obstruction to entry caused by." 2 These supervisors are listed in "Appendix A" of this report. CARNEGIE-ILLINOIS STEEL CORPORATION 859 stated in the complaint are substantially correct and that on February 15, 1946, it suspended substantially all of the 97 supervisory employees named in the complaint. The answer further admits that on March 18, 1946, it discharged 82 of these complainants.' However, the Respondent contests the jurisdiction of the Board, denies that the Association was a labor organization within the meaning of the Act, and specifically denies the commission of any unfair labor practices The answer states that neither the Respondent nor the complainants during the period from January 20 through February 15, 1946, were engaged in operations which have a colse, intimate, and substantial relation to trade, traffic and commerce among the several States and foreign countries or which tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. Further it states that "neither the Board, its agents nor the Association, and its representatives and officers, are authorized to file the complaint for grievances and alleged unfair labor practices. Respondent demands strict proof and specific written authority as of October 28, 1946, from each and every [complainant] granting authority to specific agents of the Board to prosecute this complaint before other agents of the Board." The answer states affirmatively that "substantially all of the [complainants] disobeyed reasonable requests of the Respondent to perform their duties and were dis- charged for cause." Pursuant to notice, a hearing was held before the undersigned, Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Examiner. This hearing began at Gary, Indiana, on October 28, 1946. It was recessed on October 30 to November 6, 1946, because of a death in the family of the Board's counsel: On November 13, 1946, Respondent's counsel refused to continue sitting in Gary because of certain happenings within and without the hearing room not germane to, the issues under litigation, which he felt constituted threats to his personal safety. The Board, after investigation, ordered, overruling its Trial Examiner, that the hearing be resumed on December 9, 1946, at Chicago, Illinois, and that certain testimony taken on the afternoon of November 13, 1946, in the absence of Respondent's counsel, be stricken from the record Hearing was held at Chicago from December 9 through December 11, 1946, when the Board completed its presentation in chief. On motion of the Respondent the hearing was recessed until January 6, 1947. Thereafter the Board by telegraphic notice indefinitely postponed' the hearing pending decision in the Supreme Court of the Packard Motor Car Company case.5 On March 21, 1947, the undersigned ordered that the hearing be resumed on April 28, 1947. The hearing was concluded by sitting from that date, through May 12, 1947. The Board and the Respondent were represented by counsel and the Association by two of its officials. The. com- plainants also were represented by counsel' Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upo i the issues was afforded all parties. At the beginning of the hearing the Respondent renewed a motion to dismiss for reasons stated, previously -presented to the Board's Regional Director, and referred by that official to the undersigned This motion had been expressly incorporated in Respondent's answer by reference. This motion was denied. it was renewed during the hearing and again denied. At the close of the hearing 3 Listed in "Appendix B" of this report. This list was furnished to the Board by the Respondent 4 Confirmed by a Hunt pro time order by the undersigned Issued on February 24, 1947. ' Packard Motor Car Co. v N. L R. B., 330 U. S. 485. The attendance of complainant's counsel was limited to the hearing days in October 1946. 860, DECISIONS OF NATIONAL LABOR RELATIONS: BOARD Respondent again renewed this motion at,which time it was taken under advise, ment and is now disposed of by the findings, conclusions,, and recommendations in this Intermediate Report. Respondent further moved to strike from the com- plaint the allegation that the Respondent had engaged in unfair labor practices against the Steelworkers under the provisions of Section 8, (1) of the Act. This motion was denied. Motions made by the Board, at this time, to strike certain sections of the answer were denied. On or about December 14, 1946, Respondent submitted a motion to the Board that. the proceeding-be continued generally until after the United States Supreme Court rendered its, decision in the Packard case.? On December 20, 1946, the Board issued an order denying this motion. On the reopening of the hearing on April 28, 1947, the Respondent moved that the complaint be dismissed as to 46 complainants who had not been called as witnesses by the Board. This motion was denied. After the receipt of all testi- mony the Board moved to dismiss the complaint as to Leonard B. Girard. This motion was granted without objection. The Board further moved to conform the pleadings to the evidence adduced as to formal errors not going to matters of substance. This motion was granted. On June 25, 1947, after the hearing had been closed, the Respondent submitted a motion, with a supporting brief, to dismiss the complaint for lack of jurisdic-, tion. In general the motion was predicated on the fact that the Labor Manage- ment Relations, Act of 1947 removes supervisors from the protection of the Act. This motion was contested by the Board. It remained under advisement until De- cember 22, 1947, when it was denied in an order by the undersigned duly served on- the parties. In this order the parties were notified that January 30, 1948, would be the final date for the receipt of briefs for the Trial Examiner's consideration. Briefs were duly received from the Board and counsel for the complainants. The Respondent duly submitted a brief and proposed findings and conclusions.' On the entire record in the case and from his observation of the witnesses, the undersigned makes the following: , FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The Respondent, Carnegie-Illinois Steel Corporation (Gary Steel Works), is a corporation duly organized under the laws of the State of New Jersey having its principal 'office at Pittsburgh, Pennsylvania, and a district office at Chicago, Illinois: , Carnegie-Illinois Steel Corporation is the largest subsidiary of the, United States Steel Corporation, also a New Jersey corporation. The Gary Steel ° See footnote 5, supra. ' The Respondent submitted 14 proposed findings. After consideration of the entire record, Nos 6, 11, 13, and 14 are rejected either wholly or in part. The others are substan-' tially accepted with the qualifications or modifications indicated by the findings, conclu- sions, and recommendations embodied in this Intermediate Report. Respondent's 5 pro- posed conclusions are rejected. The undersigned also received from an official of the Steelworkers a Disclaimer and Motion to Strike allegations in the complaint that the Respondent had engaged in unfair labor practices against that organization. This motion is clearly untimely in submission. Officials of Steelworkers were present in the hearing room on the first days of hearing and fully cognizant of these allegations in the complaint - Because of its untimely submission and of the disposition made of the matter herein, the undersigned finds it unnecessary to rule on, the Steelworkers' motion. 9 The data here presented are based on-allegations in the complaint admitted by the Respondent in its answer and on uncontroverted testimony. • CARNEGIE-ILLINOIS STEEL CORPORATION 861 Works, with which this proceeding is exclusively concerned, is the largest steel plant in the United States. The principal raw materials used at Respondent's Gary plant are limestone, coal, and iron ore. _ The limestone is received by water at Respondent's docks from Calcite, Michigan. The coal is mined in West Virginia and Kentucky, transported by railroads to Lake Erie ports, transshipped to steamboats and delivered at Respondent's docks. The iron ore originates either in Michigan or Minnesota, most of it from the Mesabi Range in Minnesota. The annual tonnage of these raw materials received is approximately 15,000,000. Approxi- mately 3,750,000 tons of steel products are produced annually at the Gary plant. About 80 to 85 percent of these products are sold in undetermined proportions in the States of Michigan, Ohio, Indiana, Illinois, and Wisconsin. Some steel is shipped by water but the bulk of it is delivered by rail. Respondent, at the hearing and in its brief, contends that the Board "is with- out jurisdiction in this case as at all times mentioned in the complaint, Re- spondent was not engaged in `commerce' as defined in the Act." The Respondent introduced credited testimony and exhibits to show that shipments from the Gary plant ceased during the period from 4: 45 a. in. Sunday, January 20, 1946, until 9: 50 p. in. February 28, 1946. No shipment came into the plant from 5 p. in. January 20, 1946, until the morning of February 20, 1946. The under- signed notes that during this period the Respondent drew on its coal in stock to continue operations in three batteries of coke ovens. It is inferred that the coke produced was later used in the plant's normal operations. Further iron ore, limestone, and coke were used in the operation of two blast furnaces. The pig iron produced was cast into pigs and stored. Later it was used in the production of steel. Manifestly such a temporary partial interruption of normal operations does not remove a plant from its position and functions in interstate commerce. Hence the undersigned -finds that this contention of Respondent has no merit. It is found on the basis of the facts stated above that the Respondent's opera- tions in commerce establish the jurisdiction of the Board. II. THE LABOR ORGANIZATIONS INVOLVED The Foreman's Association of America, an unaffiliated organization, and its subordinate, Chapter 44; the United Steelworkers of America, affiliated with the Congress of Industrial Organizations and its Locals No. 1014 and No. 2695, are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events . 1. The Steelworkers strike The events which culminated in the steel strike of 1946 were initiated by a demand for a $2 per day wage increase presented to officials of the United States Steel Corporation in conferences with, the C. I. O. by the C. I. O. president, Phillip Murray, on October 10 and 11, 1945. The C. I. O. demanded an immediate answer. Vice-President John A. Stephens of the corporation "gave a negative reply with supporting arguments under date of October 23, 1945, when a further confer- ence was had. When negotiations were broken off, United States Secretary of Labor Schwellenbach on November 11, 1945, intervened and requested the parties to resume meetings with the aid of a special conciliator to be appointed by him. This suggestion failed of result and an election under the provisions of the Smith- 853396-50-vol. 84-58 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Connally Act, in which both Locals 1014 and 2695 participated , was held on November 28, 1945. A majority of the votes cast favored a strike and the unions set January 14, 1947, for its initiation . When the Corporation was provisionally offered an increase of $4 per ton in steel ceiling prices, negotiations were re- sumed on January 10 and 11, 1946. The Corporation first offered 121/2 cents an hour increase and later raised this to 15 cents. Murray speaking for the Steelworkers, reduced the union demand from 25 to 20 cents an hour. When the Fact Finding Board in the General Motors case recommended a wage in- crease of 191/2 cents an hour , Murray adopted that figure . Neither party would make further concessions and bargaining ceased. President Truman then sum- moned the parties to Washington . It was arranged that the strike be post- poned from January 14 to January 21 , 1946, and negotiations were resumed. On January 17 an impasse had been reached. President Truman proposed a com- promise on the basis of a wage increase of 18% cents an hour. This proposal the Corporation rejected. The strike followed. on January 21. After the Govern- ment made further concessions in the price levels imposed on steel producers, settlement was reached effective February 18, 1946, on the basis of an 181/2 cents per hour increase in wages. A supplemental agreement which incorporated the provisions of the strike settlement was executed on February 15, 1946, between five subsidiaries of the Corporation , of which the Respondent was one, and the Steelworkers. It provided , inter alia, that the agreement currently in force between the parties was supplemented and continued . A wage increase for each employee of 91/4 cents for each hour worked between January 1 and February 15, 1945, and for 181/2 cents per hour increase after February 15, 1945, was then made effective. 2. Gary Steel Plant The Gary Steel Plant is the only plant involved in this proceeding. It is sit- uated on the southernmost tip of Lake Michigan, in the city of Gary, Indiana. It covers an area of 1,400 acres, -about 23/4 miles long and 11/2 miles wide. In general the plant has six main divisions: the coke plant; the blast furnaces; the open hearth furnaces ; the central mills, the west mills and the maintenance shops. The coke ovens include 15 batteries and a total of 1,055 ovens. This :is the second largest such installation in the world. Here a mixture of low volatile and high volatile coal is subjected to intense heat for 16 hours. The volatile matters pass off in gaseous form and furnish various byproducts. The residue is coke used in the blast furnaces. There are 12 blast furnaces arranged in pairs with their 40 stoves between. This is the largest blast furnace installation in the world. - Iron, limestone, and coke are charged into the top of the furnaces and air, heated to 1,000 degrees Fahrenheit, is forced through the furnace. At intervals of 6 hours the furnaces are tapped at the bottom and molten iron and slag drawn off. The iron 'flows into a massive ladle and is conveyed at once to the open ' hearth' furnaces. There are 53 such furnaces housed in 5 large buildings Scrap iron and var- ious minerals are added to the molten iron in quantities determined on the basis of the specifications as to chemical and physical properties desired. Heat'is developed above the "bath" of liquid iron by burning oil or gas. A "heat" re- quires about 12 hours. The molten steel is poured into large molds and allowed to solidify into ingots. These are taken to the soaking pits and heated to the degree that prepares them for the rolling mills. ' CARNEGIE-ILLINOIS STEEL "CORPORATION 863 At the central mills the primary rolling is done. Here are fashioned slabs, billets and blooms of shapes and dimensions desirable for rolling into final shapes in the west mills. Here also are railroad rail mills and a plate mill which, during the late war, made armor plate for the United States Army and Navy." The west mills include a wheel mill and an axle mill making railroad wheels and axles and 13 "merchant mills." The merchant mills roll steel to customer's specifications and make a great variety of products. They are furnished with billets from a common billet yard and discharge their products into a common warehouse for final inspection, preparation, and shipment. The warehouse covers 1,900,000 feet of floor space, is half a mile long and can accommodate 120 railroad cars for loading out products. Subsidiary to these main divisions are various collateral installations. There .are some 250 miles of railroad track, and 30, miles of roadways to serve these coke ovens, furnaces, and mills. The maintenance division has numerous shops to care for upkeep of buildings and equipment. The power and fuel division pumps water,. produces steam, and operates fans to furnish air currents. There .are miles of pipe for water supply, mains for gas transmission, and equipment for heating plant and buildings Hospital and restaurant service is maintained. Coke oven gas is furnished to the city of Gary for domestic and industrial pur- poses and blast furnace gas drives engines which produce 25-cycle current for the pumping station which furnishes the Gary water supply. 3. The supervisory organization The supervisory hierarchy in the Gary plant is headed by General Superin- tendent Stephen M. Jenks. As the top executive officer, Jenks exercises general 'superivsion over all operations. He has two assistant general superintendents : Arthur Hjortsberg, who is in charge of all direct operations in steel making, .and Edwin H. Gott who has charge of the service departments. There are six 'divisional superintendents. At the time of the strike, they were : Edward A. Brown : Power and Fuel Lloyd F. Burress : Coke W. S. McNab : Blast Furnaces and Docks J. J. Golden : Open Hearth and Central'Mllls J. N. Quinlan : West Mills A. F. Giese : Maintenance. The maintenance divisional superintendent has charge of all shops. Those listed in the record are : machine, boiler, forge, welding, paint, carpenter, pat- tern, electric, line department,, pipe, rigger, and foundry. Each shop, as a gen- ,eral statement, has a general foreman as its chief with such assistant general foremen, foremen, and assistant foremen as the number of employees and the nature of operations necessitates. The number of employees in these shops ranges from 30 in the smallest, the pattern shop, to approximately 800 in the largest, the machine shop. Gott gave the following testimony relative to super- visory organizations in the shops : Well, there are considerable variations, depending on the operation. In the machine shop, as an example, there is a general foreman with two io Uncontroverted and credited testimony stated that about 1,000 employees and 100 supervisors were so employed during the war years. 864 DECISIONS OF NATIONAL, LABOR RELATIONS -BOARD assistant general foremen. The • assistant general- foremen have divided areas within the shop. One assumes the responsibility for the north half of the shop and one assumes responsibility for the south half of the shop. Each of the assistant general foremen in turn have foremen and assistant foremen directly under them supervising specific areas within their half of the shop. It is, however, possible for an assistant general foreman to give direct order to a wage earner. He may also give his order directly to the supervisor, depending upon the circumstances and, conditions. Generally, he would try and deal through his foreman. As the table above suggests divisional superintendents have broad areas to supervise. They may have one or several assistants. Departments within the division are normally supervised by superintendents. General foremen have charge of smaller operations. They may be held responsible for round-the- clock supervision of their assignments . Normally they work on the day shift and have turn" foremen under them to directly supervise the night shifts. How- ever, general foremen may supervise night shifts in extensive or important opera- tions. Illustrative of a divisional set-up is the staff organization presented in his' testimony by Divisional Superintendent Brown of the power and fuel division : Assistant divisional superintendent: Harold Middlebrook Superintendents: George Ellman :Maintenance Benjamin Morrison : Power production Fred Corbin : Fuel General foremen : H. H. Dahlheim : Steam production J. W. Harrington : Gas engines, and gas washers T. W. Haws : Train motors and substation A. A. Schmidt : Steam maintenance Fred Holifield : Gas engine maintenance Edward Fleming : Electrical maintenance Other officials : - William Barmore, Head Industrial Relations William Beveridge, Charge clerical force , In addition to these "staff- supervisors, the division has a complement of as- sistant general foremen, foremen, and assistant foremen. -,:Foremen's operational duties are described by Forest:J. Smith, superintendent df industrial relations at the Gary plant as follows : Well, the duties' generally of a' foreman are primarily to see to it that the production process flows, that the employees are properly scheduled, that they are advised of the schedule of product coming to them, and that the product flows away from them, the handling of discipline, handling per- sonnel, all the matters involved in such handling. The assistant foreman's duties are indicated by his title. "He assists the fore- man " When the foreman's area is too large for him to supervise personally, he "The terms "turn foreman" and "foreman" connote similar responsibilities , authority and salaries In.general , foreman is applied to day-shift operations ; turn foreman to round-the-clock operation. CARNEGIE-ILLINOIS' STEEL CORPORATION 865 assigns a portion, of iti to his assistant. In the main departments, and elsewhere, as the record indicates, assistant foremen are in charge of gangs of employees assigned to particular tasks. Average monthly remuneration of nonsupervisory employees in the fourth quarter of 1945 was $170 in base. pay and $193 with the addition of incentive pay. Similar figures for assistant foremen paid on an hourly basis were $213 and $224; assistant foremen paid on a salary basis received $260 per month. For foremen average base pay was $280; assistant general foremen received $315, and general foremen $386. Salaried foremen are expected to assist in emergen- cies without additional pay for overtime worked. Their salaries are not subject to reduction or stoppage in periods of low operation or during excusable absences. Forest J. Smith, superintendent of industrial relations at the Gary plant, esti- mated the number of supervisors at the various levels as: department superin- tendents, approximately 30; assistant department superintendents, 30; general foremen, 75 to 100; foremen (including turn foremen), 800; assistant foremen, 400.'$ Advance in the industrial hierarchy is by promotion from within. Few super- visors even of the lowest rank are hired as such. Instead all vacancies are filled by promotion from the next lowest rank. As Smith testified, "That is a pattern in the steel business. You hire at the bottom'and you promote from within for many reasons." 14 A foreman's authority at the Gary plant affects hiring, promotion, discipline, and discharge. Applicants for employment are "screened" by the personnel department and referred to the foreman to whose requirements, in the judgment of the personnel officials, the applicant's qualifications are best adapted. The foreman may, and frequently does, reject the applicant if not favorably impressed with his abilities. The foreman's decision is rarely reviewed by his superiors. Promotions are made by the foremen, after reviewing the qualifications of the candidates, with advice from informed assistant foremen and the general fore- man interested. The foreman also makes proper representation to the pay-roll department to effect appropriate change on the promoted employee's time card. Discharges are-governed by provisions of the agreement between the Respondent and the Steelworkers. Final action is reserved to the management. But the foreman normally initiates action by temporarily suspending the employee. After giving opportunity for a hearing the management may discipline, transfer or discharge the employee. Grievances during the period material in this proceeding were handled under the provisions of the agreement between the Steelworkers and the Respondent executed in 1945.35 These provisions gave the supervisors a position of large importance. As there provided the aggrieved employee might take up his grieve 12 The general average for all assistant foremen was $226 per month. 13 Smith made the total, as of January 1946, 1500. The record indicates , however, that this total included 100 plant protection employees. The 98 complainants included 1 general foreman , 2 assistant general foremen, 55 fore- men, 32 assistant foremen, and 8 not classified. Those unclassified included 3 assistant yardmasters, 2 special engineers , a lubrication engineer, a fire inspector and a sched- ule clerk. ' 14 When asked whether employees in the steel industry, devoted themselves to it as a career for long periods of time, Smith replied, "I can only say that some do and some don't. At the present time not enough do. We are having a turnover that we don't like." 1 15 See 4 next below. 866 DECISIONS OF NATIONAL LABOR- RELATIONS •BOARD ance informally with his foreman either with or without the presence of the union committeeman as the employee elected. If a satisfactory settlement was not reached in this informal discussion, the employee was entitled, as Step 1 in the formal procedure, to have his grievance stated in writing and, presented to his foreman by the appropriate member of the Steelworkers' Grievance Com- mittee. At such presentation the employee may or may not be present as he chooses. The foreman inserts his disposition of the grievance and returns the form to the committeeman. If not satisfied the employee aggrieved has right of appeal within 10 days to his department superintendent. At Step 2, the matter is discussed by the Steelworkers' committeemen and the superintendent and a written decision promptly rendered. Further steps provide for appeal to the general superintendent and again to the superintendent of industrial relations and, finally, for proceedings before a Board of Conciliation and Arbitration , Un- assailed and credited testimony by Forest J. Smith, superintendent of industrial relations at the Gary Steel Works, presents an estimate of not over 50 written grievances per month. Smith further testified that grievances settled informally with the immediate supervisors might be "ten times that many per month." 4. Collective bargaining at, the Gary plant The Respondent first executed a collective bargaining agreement with a union, the Amalgamated Association of Iron, Steel and Tin Workers of North America, on March 2, 1937. This agreement recognized the Union only as the collective bargaining agency for its members. On March'17, 1937, a detailed working agree- ment was executed . This contract was to expire on February'28, 1938. It was continued, on February 9, 1938, subject to mutual notification, by contracts entered into by the Respondent with the Steelworkers Organizing Committee, CIO, successor to the Amalgamated. At this time the Respondent was careful to notify its employees that "the open shop policy of the Corporation continues as heretofore" and that the agreement executed was "in accordance with the con- tinuing policy of the company" stated as follows : The Company recognizes the right of its employees to bargain collectively through representatives freely chosen by them without dictation, coercion or intimidation in any form or any sort. It will negotiate and contract with the representatives of any group of its employees so chosen and with any organization as the representative of its members. The right to work is not dependent on membership or non-membership in any organization, and is subject to the right of every employee freely to bargain in such manner and through such representative, if any, as he chooses. As of April 1, 1941, the foregoing agreements were replaced by a new contract between the Respondent and the Steelworkers Organizing Committee, CIO. This continued the provision that the Union represented only its members. It was to continue effective subject to due notice by either party. On September 1, 1942, the Respondent and the newly formed United Steelworkers of America, CIO, ex- ecuted a new agreement. Under the provisions of a Board certification 16 the Steelworkers became the exclusive bargaining representative of all employees in the Respondent's plants with certain exclusions of which clerical and salaried la in case No. 3400, decided April 14, 1942, 40 N. L. R B. 532, the appropriate unit was defined as, "All employees of the [Respondent's Gary plant] excluding foremen , assistant foremen, supervisors in charge of any class of labor, watchmen , guards, and clerical and sal a r i e dhe mplo ye a s." CARNEGIE-ILLINOIS STEEL CORPORATION 867 workers and supervisory employees were most important. In conformance with a directive of the National War Labor Board, dated August 26, 1942, this contract provided for "maintenance of membership" "as a condition of employment" and for the check-off of initiation fees and,monthly dues of members- of the Steel- workers. This departure from its former open-shop policies was accepted at the time in an official statement to the N. W. L. B by the Respondent reading, in part: The acceptance is predicated on one premise only ; namely, that the coun- try is at war and that your Board, created by the President of the United States of America, has ordered this Company to do certain things embodied in your directives. For the period of the contracts now under negotiation, this Company bows to your decision and accepts that which it considers unnecessary, undesirable and subversive of'the workers' individual freedom. As of March 13, 1945, a new agreement was executed between the Respondent and the Steelworkers. This embodied the contract provisions in effect at the time of the events with which this proceeding is immediately concerned. It con- tinued the provisions for recognition of the Steelworkers as exclusive representa- tive and for maintenance of membership and check=off." Section 10, entitled "Management," is quoted in full because of the importance ascribed to its pro- visions by the Respondent during this proceeding. The management of the works and the direction of the working forces, including the right to hire, suspend, or discharge for proper cause, or transfer, and the right to relieve employees from duty because of lack of work or for other legitimate reasons, is vested exclusively in the Company, provided that this will not be used for purposes of discrimination against any members of the Union. About 1942 the Steelworkers began an organizational campaign among the salaried clerical, office workers, and white collar workers in the Gary plant. The members enrolled were organized in Local 2695 A consent election was held on petition of this Local on November 18, 1943, and the Steelworkers was certified by the Board as exclusive bargaining agent of these workers on December 2, 1943.18 During the pendency of this case the parties had entered into an "Interim Agreement" on November 16, 1943. This was terminated by the execution of a formal agreement on August 28, 1945, closely parallel as to provisions, with the agreement entered into that year by the Respondent and Local 1014. The management section is included verbatim and provisions for the maintenance of membership and check-off are incorporated under a directive from N. W. L. B. of August 6, 1945. 5. Negotiation preceding the strike at the Gary plant At the instance of Joseph Goin, director of Steelworker's subdistrict 1, which includes Gary, a conference was arranged on December 20, 1945, between repre- sentatives of the Respondent and of the Steelworkers.' In addition to Goin, John Mayerik, president of Local 1014 and chairman of its grievance committee, 11 As stated in the contract maintenance of membership and the check-off were included in conformance with a new directive of N. W. L. B. issued on November 25, 1944 18 This Is Case No. 13-R-2103. It is not , reported in the volumes of printed decisions. The facts-stated'above are.fTom the Board 's records. 868 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD and Peter Villastrigo, secretary of the grievance committee," represented the Steelworkers. The Respondent's representatives were George H. Dowding, direc- tor of industrial relations in the Chicago district, with whom Goin had made arrangements for the meeting, Jenks, Gott, Hjortsberg, and Forest Smith, super- intendent of Industrial Relations in the Gary plant. The parties were in agree- ment that the impending strike must be. conducted in such a manner that the plant would be protected from unnecessary damage and kept in condition to allow prompt resumption of operations when the strike was over. They also agreed that there should be such limited operation of the plant as would allow the fulfillment of these objectives, and permit the Respondent to meet its obliga- tions to the City of Gary for the supply of coke oven gas for domestic and industrial uses and of 25 cycle electric current for the operation of the pumping station which furnished the city's water supply. Jenks indicated that to furnish gas for plant purposes and for the City of Gary it would be necessary to operate three batteries of coke ovens 20 Two blast furnaces would be necessary to produce blast furnace gas used in producing the 25 cycle electric current used by the Gary 'pumping station and for various plant uses, mainly for heating. It was explained that iron produced by these blast furnaces would not be further processed but would be cast into pigs and stored. The Union representatives demurred somewhat at the extent of the proposed operations but accepted Jenks' explana- tion that it was essential to the safety of the plant to produce gas in sufficient quantity to maintain such temperatures in all the- coke ovens- as would allow the walls, built of silica brick, to cool very gradually. Further Jenks stated that while one blast furnace would produce gas enough for minimum uses, it was necessary to have some surplus productive capacity so that, in case of inter- ruption of operations in one blast furnace, the supply of gas would not be depleted- to an extent that the gas mains would draw in air.21 Such mixture of gas and air engenders a dangerously explosive condition. The parties agreed that employees of contractors doing construction work in the plant would be allowed to continue their work and that their union membership cards would be acceptable as passes. Goin stated that the Union proposed to establish picket lines and inquired where the Respondent's property lines at the entrances were located. He was told that plant boundaries would be marked by a painted line on the pavement: Goin stated that supervisors of the rank of foremen and higher would be admitted to the plant, "provided they would not attempt to do production and maintenance work," on the showing of acceptable passes. This proposal was challenged by Respondent's representatives who pointed out that assistant foremen, whom Goin proposed to exclude, were not eligible for membership in the Steelworkers and did not come within its control. Goin' neither contested the statement nor withdrew from his stated position. Respondent's representatives made similar objections to the Steelworker's assumption of control over plant protection employees who were not included within its jurisdiction. Goin replied, as he testified, that he thought Steelworkers had sufficient dues paying members among the plant pro- tection employees to cover the plant but that if this proved not to be the case a le The salaried workers were not represented at this initial meeting although Local 2695 had participated in the strike vote. When attention was called to this omission it was agreed that their representatives would attend subsequent meetings. 20 A battery contains about 75 ovens. The Gary plant contains 15 batteries comprising an, aggregate of 1,055 ovens. ' 21 These mains are from 4 to 6 feet in diameter. , CARNEGIE-ILLINOIS STEEL CORPORATION 869 special arrangement would be made. The Steelworkers proposed that the Re- spondent present lists of qualified workers. It was made clear that the names of non-union men would be struck from these lists and that the Steelworkers did not expect to allow such employees to pass the picket line.22 At a subsequent meeting on January 5, 1946, Jenks protested stating as his credited testimony reads, We stated that it had always been our practice in partial operation of any kind to divide the work equally among those who normally, performed the work, and those who were capable of performing it.23 I don't recall any objec- tion. I do recall definitely making that comment. On January 8, 1946, Smith and Jenks for the Respondent met Mayerik and Villastrigo for the Steelworkers and delivered duplicate lists of qualified main- tenance and production workers. Either at this time or at another meeting sim- ilar lists of qualified salaried workers were delivered to Local 2695. The original lists delivered to Steelworkers contained 3,046 names of whom 2,679 were. iden- tified as union members by the Respondent on reference to authorizations for the check off of union member's dues. It was the Steelworkers declared policy to strike off all union officials and picket captains. Goin also testified that it was proposed "to eliminate all non-union people, and possibly union members who could not be trusted to 'be inside of the plant during a strike situation." The Steelworkers also struck off 292 of 387 non-union employees.24 On the salaried worker lists as submitted by the Respondent, 192 names were included ; 98 were union members while 94 were not. Local 2695 officials struck off, 3 union members and 93 non-union. On January 11, 1946, representative of Local 1014, and on the following day those of Local 2695, returned lists with indication of names of employees not acceptable to the locals for admission to the plant during the strike and requested the Respondent's representatives to prepare detailed schedules of positions to be filled during the first week of the strike with a definite assignment of em- ployees for each turn. This information was needed in order that passes might be filled out for each employee so designated. Discussions continued on January 12, 1946. At this time the Respondent's representatives acceded, with certain reservations, to Steelworkers' request that members of the grievance committee have entry to the plant during the strike. The Steelworkers expressed purpose was that the committeemen might assure themselves that supervisors in the plant were not performing the work of their constituents. On the evening of the 12th word was received of the postponement of the strike until January 21. The final meeting of the conferees occurred on January 20 about 10 a. in. Jenks, Smith, Gott and Hjortsberg represented the Respondent; Mayerick, Villastrigo, the Steelworkers and Lawson Neely, President of Local 2645, the salaried workers. Jenks brought with' him detailed schedules prepared for the 22 As Goin testified : "We certainly had no intention of issuing passes to non-union people to work in a struck plant." 23 Of similar import is Dowding's testimony, The idea was'ithat employees regularly performing that work would continue to perform it during the strike. 24 The record shows that the Steelworkers' officials had difficulty in identifying the employees because of the different spellings of names on the Respondent's,and their lists. This seemingly accounts for the passing of some non-union, employees. The Respondent's check on non-union employees may have contained errors since its lists were somewhat out 'of date.'' 870 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD first week's operation under strike conditions. His testimony as to what then happened is fully corroborated by Smith and is recorded as follows : After that the union asked if the working schedules were ready, and I pointed to a pile on my desk, and said, "They are ready'." I said, "Before presenting these schedules to you I must reiterate that we are clearly adher- ing to our policy of scheduling all employees, regardless of membership in the union." * * * * * * We stated that we had looked over the lists and the names they had drawn red lines through as indicating they would not pass through the picket lines, and stated that we had been of the hopeful opinion that' they would not adhere to- that position, as their' contract *ith the company did not include designating who could work in the plant. We stated that we had a definite obligation to all employees to schedule them without regard to membership in the union and that if we made sched- ules up which did not include people because they_ did not- belong to the union, we would not be acting in accordance with our contract with the union, we would not be acting in accordance with our policy, and we would not be acting in good faith with all of our employees. Mr. Mayerick stated that they definitely would not pass anybody through the'picket lines except those that they agreed should pass through, and that the company could not select the people to work that they wished to work. I asked him if he would be certain that he wished to stand on that position, as I felt it was a very serious move and very different from the normal posi- tion, and different from the signed agreement with the company, which had been signed only a few months before. There was some little discussion among the union representatives, and they stated definitely that that was their position. My recollection is that they removed a paper from their pocket and read out of it something which they said was their strike policy and which stated that nobody shall pass picket lines except members of the union or those approved by the strike committee. I said that under those circumstances there was no use in us giving them the schedules, and they said, "Well, what are you going to do?" And I said, "Well, what can we do?" I said, "We will-have to assume the responsi- bilities which this company has to the public and to its employees and to its owners without the assistance we had expected from the wage earners." Mayerick's testimony as to the final conference, which was in effect corro- borated by that of Villastrigo and Neely, while less elaborate in statement, is in substantial agreement with that of Jenks. It reads, Well, they didn't go into any discussion, and we got right down to busi- ness quickly. They told me the schedules were ready, but that the union had to agree to one principle, that we allow non-union men as well as union men in the plant, without any distinction. To that I objected. I said, "I can't agree to that principle." * * * * But I told him [Jenks] since you have got the schedules ready that we possibly will agree to the schedules and we won't have to agree to any principle, and ;if we haven't got qualified people to cover the necessary maintenance and production jobs that would be necessary to safeguard that CARNEGIE=ILLINOIS- STEEL CORPORATION 871 plant-and the city, that-we would sit down and negotiate who should go on that job and I am sure we could reach some agreement. The management-just wanted a statement from,me that I had to,agree to that one principle, and in about fifteen or twenty minutes,the meeting broke up. That was the first time, and it sort of took me off my feet. They said to me that that is the company policy and that I would have to agree to it. When the parties separated Mayerick expressed an intention to set up picket lines immediately. However Goin insisted that the strike plan be followed and -lines were not established until about 9 p. m. Mass picketing was maintained until February 16, 1946. During this period the Steelworkers made every effort to enforce a complete blockade. As Goin frankly testified, When the strike actually began we put a picket line around the plant... . We stopped everybody from going into the plant. We had about 2,500 con- struction workers we had already made arrangements' to pass through the lines. We cancelled their passes. - We -cancelled every -pass issued and put a mass -picket line around the, plant and prohibited any entrance into the plant. ' . . anybody. It didn't,make any difference who it was. Nobody would go in 26 To this policy of rigid exclusion exceptions were made after the. first week. Railroad trainmen were passed to operate locomotives in the plant. Passes were issued to priests and ministers on their request ; to the mayor of Gary who made efforts to mediate the strike issues ; to service men on furlough who had relatives in the plant and to a representative of the Labor Commissioner's Office of the State of Indiana.2° 6. The Association and the Steelworkers strike Chapter 44 of the Association, whose membership is confined to supervisors employed by the Gary plant, was organized at a date not definitely fixed in the record but prior to August 1943. In June 1944 a supply of Association buttons was received which the record indicates were freely worn in the plant by members. At the time of the strike Chapter 44 had between 800 and 900 members. On November 28, 1944, its president, Hillary E. Jones;, wrote to General, Superintendent -Jenks claiming to represent a "majority of the Foremen employees of the Gary Works" and asking for an "opportunity to discuss with you our mutual problems." Jenks replied on December 4,1944, stating, It is management's position that organization procedures, applicable to all members of the management group of which foremen, as you well know, are' 25 Goin said of Superintendent Jenks, "We have no objection to Mr. Jenks going home, but we do object to him going back to work, if he wants to go home he can go home." 26 As appears above the undersigned does not agree with the Board's contention that the 'Respondent, as stated in the Board's brief, manifested "fraud and deceit" and a "mon- strous lack of bad faith in bargaining" in these negotiations. The lists with indication of workers not acceptable to the Steelworkers were returned on January-ll and 12, 1946. On the latter date in the evening word was received of the strike postponement. There- after, Jenks and management generally, hoped that a strike would be averted. This accounts for delay in coming to a "showdown" on the issue of the non- union , employees and their right to equal consideration with union, members for strike duty. Other issues similarly in abeyance were the Steelworkers plan to exclude assistant foremen and non- member plant protection employees. It is noted also, that the , Steelworkers withdrew from its promise to admit employees of construction contractors. 872 DECISIONS OF -NATIONAL: LABOR- RELATIONS BOARD a part, make possible the discussion and settlement of any problem which a supervisor may feel confronts him. Problems not settled with the immediate superior of any given foreman, or other supervisor can, of course, through proper organizational channels, be presented-to this office for consideration and final determination. Under the circumstances, therefore, I wish to advise you that it would be contrary to my own fundamentals of management to meet with you or mem- bers of your organization as representatives of any supervisors of this plant. On April 20, 1945, Jones again-wrote to Jenks stating that the supervisory employees in the Gary plant were members of Chapter 44 and had selected the Association as their representative for the purposes of bargaining collectively with the Respondent. He asked for a conference "for the purposes of recog= nition and, the, start of negotiation for an agreement." Jenks replied under date •of-April 28,-1945, recalling his earlier statement in which he had "advised that representation of a fellow supervisor by intermediaries was not in accord with [his] philosophy of management." The letter, concludes : My position has not changed and, accordingly, I cannot arrange, as you request, a meeting to discuss recognition of the Foreman's Association r, On June 30, 1945, the Association through Fred L. Williams, its Indiana Regional' Director and a representative of record in this proceeding, filed a Peti- tion for Certification of Representatives with the Board.28 No hearing was held 'and on November 5, 1945, the Association through its First Vice-President William Valiance -requested the withdrawal of the petition without prejudice. The case was closed on November 20, 1945, by Board action." On December 8, 1945, Stuenkel, as chairman of the negotiating committee of Chapter 44 wrote to Jenks requesting a meeting to discuss a grievance relating to the discharge of a battery foreman. Jenks gave credited testimony that this letter was received at "a very busy time." After investigating the matter and .after "developing all the facts" Jenks drafted a reply to Stuenkel which was not sent since Stuenkel had been suspended. After consideration of the impending Steelworkers strike and the position of Association members in such a contingency, Chapter 44 on December 17, 1945, at a Chapter meeting with 300 to 350 members present unanimously passed a State- ment of Policy on the Steelworkers strike. This policy, was mimeographed in the following form : STATEMENT OF POLICY OF CHAPT. #44, F. A. A. ON U. S. W. A. STRIKE On the basis of the policy of the U. S. W. A. as regards supervisory and management employees, maintenance of essential services and protection of mill equipment during the strike; the policy of Gary Works Chapter #44 as concerns the position of its members during this strike will be as follows : 1., There will,be no scabbing-only normal duties will be performed. No production work will be engaged in. Foremen and supervisors will not do rank and file work. m Undisputed ' testimony by Jenks shows that on his initiative he had an hour long conference with Jones at the time he answered Jones's second letter Each adhered to the position stated in this correspondence. - ReThis was Case No. 13-R-3174.' 21 The date of closure is from the Board's records. - ' CARNEGIE-ILLINOIS. STEEL CORPORATION 873 2. Foremen and supervisors will work their normal scheduled hours but no more except in case of emergencies which involve protection of equip- ment and maintenance of essential services to the community but not on production work. 3. We are opposed to staying in the mill twenty-four (24) hours a day during the period of the strike. It is unsanitary, unhealthy and deprives us of contact with our families. Furthermore, acceptance by the management of the offer by the U. S. W. A. to maintain essential services and equipment will make any such action unnecessary. 4. F. A. A. Foremen will present membership cards along with their mill passes when asked to by U. S. W. A. pickets. New 1946 membership cards, paid up in January, will be acceptable. 5. If U. S. W. A. pickets refuse passage into the plant to foremen, F. A. A. foremen will not attempt to pass-through the picket line. 6. Should any situation arise, making a change in our policy necessary, a mass meeting will be called and policy will be formulated to meet the new situation. Passed unanimously by the membership attending the special meeting held Monday, December 17, 1945 at chapter headquarters, 567 Broadway, Gary, Ind. IT SHOULD BE UNDERSTOOD THAT THE MEMBERSHIP OF GARY WORKS CHAPTER #44, F. A. A. IS NOT ON STRIKE AND THIS STATE- MENT OF POLICY IS ISSUED ONLY FOR INFORMATION TO OUR MEMBERS. Copies were sent by mail to each member of Chapter 44, and the statement of policy was further publicized by a news story inserted, on January 12, 1946, in the Gary daily newspaper by officials of Chapter 44. On January 20, 1946 Williams consulted by long distance telephone with National President Keys of the Association at Detroit, Michigan.. After investi- gation of the local situation, and consultation with the officers of Chapter 44, he called Jenks in the plant about 4 a. in. January 21. Jenks was not available but the call was taken by Assistant General Superintendent Hjortsberg. In Williams' -credited testimony is recorded the following account of this conversation : Well, I told Mr. Hjortsberg that I was calling in behalf of the membership of Chapter 44 of our Association, and that I fully realized, or I believed that I fully realized the situations that existed, that I wanted him to realize the conditions under which he had called the membership of our chapter to come under that because of the emergency involving utilities for the citizens of Gary, that we were perfectly willing to allow our membership to carry on under those particular conditions for a certain period of time, for a reasonable length of time, and that I believed that a reasonable length of time was as of six o'clock that evening. Hjortsberg asked me if I understood under what.conditions they were asking these men to do this work. . . and I told him that I thought -I had, but he might be able to explain it a little bit farther.' He stated to me that the striking union was not furnishing the men to do the work. I told Mr. Hjortsberg that that was entirely a question between manage= ment and the striking union, and we did not care to become involved in it. 874 DECISIONS OF NATIONAL, LABOR.: REL'ATIONS."BOARD He says, "Is that all you have got to say?" I said,'"Yes," He'says, "All right, good bye." '0 Testimony given by Hjortsberg substantially is in accord with the foregoing account. His testimony reads in part : He [Williams] wanted to tell me that the Association members were not going to work on wage earner's jobs for any extended period of time... . . I told him he knew that we had not been able to get any satisfactory ar- rangements with the union to get maintenance work taken care of by regular wage earners, and that therefore it was a necessity for us to work supervisors in the plant. I think he then told me . . . that he was going to call out the supervisors from the plant at six p. in. that evening. On. Monday, January 21, the Association was engaged in informing its members in the'plant that'they were expected to'cease doing the work of production and' maintenance employees by 6 p. m: that day. Such messages reached some work- ers in the plant over the radio that afternoon and Association members both within and without the plant endeavored to convey this message to fellow mem- bers over the telephone. Jones, president of Chapter 44, learned of the 6 p. in. deadline over the radio while in the plant about 1 p. in. Monday. It was his testimony that thereafter he discussed the matter with 25 to 30 members of the Association. Stuenkel was outside the plant on Monday and he and others in the Association made very considerable efforts to reach members of the Associa- tion by telephone and through representations made to wives of members.' After the settlement of the Steelworkers strike the Association procured sig- natures to communications to Jenks reading, We the undersigned, foremen of the Gary Works, of the Carnegie, Illi- nois Steel Corporation, have at all times held ourselves ready to fulfill our jobs from which we were suspended by the orders of said corporation, and shall continue to hold ourselves ready to perform our said jobs We hereby request and urge the management of said Gary Works, Carnegie-Illinois Steel Corporation, to immediately reinstate us to our positions. We request a reply to this communication at your earliest convenience. These letters were in mimeographed form with space provided for the affixing of ten signatures. The earliest entered on the record carries the date of Feb- ruary 26, 1946, and'the-latest that of March 7, 1946 By reference to the date of the suspension and'of the discharge letters- set, forth in the following sections it' will be found that this application for reinstatement was sent after the date of'the suspension letter and' prior to that of the discharge letter. Respondent admitted the receipt of such letters, but did not produce them for the record. In consequence evidence as to the number of signatures is incomplete. Of 52 com- plainants, who appeared as witnesses, 38 gave unassailed and credited testimony that they had signed such letters. The Respondent made no direct answer to these communications. 3" Complainant Stuenkel, who was present with Williams when this telephone conversa. tion was made, gave testimony which fully corroborated Williams'. ffi These activities of Jones and Stuenkel as tliey'touch complainants are set forth below in the discussion of the Power and Fuel group t - " CARNEGIE-ILLINOIS- STEEL CORPORATION ' 875 B. Disc? inunatory suspensions and discharges of supervisors The 96 supervisors,32 whose cases are discussed in this section, were all sus- pended and 82 of them were discharged as a result of their failure or refusal to remain in the plant during the Steelworkers strike and perform duties as- signed to them by the Respondent. As a general statement each of them was interviewed individually by a superior in his division or department in the week preceding January 14, 1946, and told of the plans for limited operations in the event of a strike by production, maintenance, and salaried workers. He was asked whether, in the event that the plan to have rank and file employees carry on lim- ited operations failed, he would be willing to remain in the plant and assist in performing the work found necessary by the Respondent. In the week following the strike's postponement the supervisors were again interrogated and their attitude toward such duty during the strike checked. Suspension letters were sent out under date of February 15, 1946, reading as follows : DEAR SiR : Your conduct in leaving your position and assigned duties during the current strike has caused management to suspend you from all further duty until you are otherwise notified. Upon the termination of the strike, your case will be carefully investigated, and should the evidence dis- close that you, in management's judgment, were derelict in your duty, you will be promptly terminated. On the other hand, should the evidence prove otherwise, your case will be handled accordingly. Each supervisor suspended was afforded an opportunity to appear before a committee of three Respondent officials 33 Jenks headed each such committee. With him sat either Gott or Hjortsberg and a divisional or departmental super- intendent of the supervisor appearing As a general statement the supervisor suspended was asked to state any circumstance or make any explanation which might be expected to explain his failure to accept and perform his strike assign- ment. In the following discussion reference is made to such interviews only when unchallenged statements of events there throw light on the motives which in- duced the supervisors either to fail to report or to leave the plant. The 82 discharge letters read as follows : DEAR SIR : You were heretofore notified that you were suspended as of February 15, 1946. In accordance with our letter to you advising you of your suspension, we have carefully reviewed the evidence surrounding your case, and,our conclusipn,is that; your, failure toiperform your responsibilities to this company, during the emergency created by the recent strike, warrants termination of your employment with this company. You are therefore dis- charged, effective day March 18, 1946. "This excludes Nick Miller and Mibelic whose cases are discussed in the following section. ^ As appears below a few supervisors declined to appear. Gott testified that in these termination interviews consideration was given to four points : 1. Did the men promise to remain in the plant and assist in the work necessary to supply fuel and power to the city of Gary, and protect the property ; 2. Did he perform the assigned work ; 3. If not, did he offer any reasons why he could not ; 4. Were there any mitigating circumstances surrounding the case. Jenks , gave testimony to' similar ' effect. 876 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD As you undoubtedly are aware, should you be reemployed at Gary Steel Works, or at any subsidiary of the United States Steel Corporation, within a period of six months from the date of your suspension, your continuous service record will be unaffected. At the hearing it was stipulated that these suspension and discharge letters were written by Jenks and that each was signed by an official of superintendent's rank in the department or division in which the supervisor was employed and thereafter approved by Jenks as general superintendent. - The 96 complainants are grouped for convenience. The strike experience of each group will be discussed seriatim. 1. Power and Fuel Division Of the six supervisors listed here, E. F. Emerson, Hillary Jones, Thomas F. Quarnstrom, and Leon H. Stuenkel appeared as witnesses; M. F. Bennett and W. B. Sanders, Jr.," did not give testimony. All of these supervisors were mem- bers of Chapter 44. Jones had been president since June 1943. He had also been a member of the Association's National Executive Board in 1944 and 1945. Stuen- kel was Membership Director of the Association and a member of the Committee of Chapter 44 which directed its policy during the Steelworkers strike. Emerson had been an Executive Board member of Chapter 44 in 1944 and a trustee in 1945. The prominence of Jones, Emerson and Stuenkel as Association officers was admittedly known to Respondent's of6cials.95 Data relative to these super- visors is_set forth in the following table: Rating Rating First hired Made super- Approximate number supervised Special strike assign- meat Bennett_______ Foreman________ 1926___________ ________________ ______________ Fireman, No. 4 boilei house. Emerson ______ General turn 1926___________ 1919___________ 36 to 50______ Turbine engineer, No. foreman 5 power house. Jones__________ Assistant °gen- Mar. 26, 1926__ Mar. 26, 1926__ 327__________ Supervise operation of eral foreman No. 2 pump station. Quarnstrom___ Special engineer- 1939___________ 1944___________ 4------------ Sanders ------- -----do----------- ---------------- ---------------- -------------- Stuenkel------ Fireman________ March 1936_:_ 1940___________ Ste 10_______ No. 4 boiler house. E. A. Brown was Divisional Superintendent; William J. Barmore was his assistant ; J. W. Harrington was General Foreman of the Gas Engine, and Gas Washers Department. He was Jones' immediate superior. Edward Flem- ing was general foreman of the department of electrical maintenance and oper- ation. His assistant general foreman was Arthur F. Loverich. Loverich relieved Jones on his strike assignment on Monday, January 21, 1946, and'thereafter re- ported to Fleming as, to conditions found there. Fred A. Corbin was superintend- ent of the fuel department. Stuenkel worked under his supervision and directed the work of Quarnstrom and Sanders. Harry H. Dahlheim was superintendent of the steam production department in which Emerson and Bennett were em- ployed. All the'officials identified'in this paragraph gave testimony. In addition Elmer E. Cando testified concerning sleeping and eating facilities in the plant during the first days of the strike. 84 This name was frequently misspelled as Saunders in the transcript of testimony. 96 Brown admitted that he knew of the Association membership of Jones, Emerson, and Stuenkel at the time they were suspended. CARNEGIE-ILLINOIS STEEL CORPORATION 877, Brown called his divisional staff,-consisting, of superintendents and general foremen, together on January 11 or 12, 1946, and told them of the plans for limited operations during the strike and the possibility that rank and file em- ployees might not be available to man the plant. He instructed the officials present "to talk to each of the 65 supervisors personally" and find out whether they would be willing in such an eventuality "to carry on operations only to the extent of protecting the City of Gary and our plant properties." In accordance with Brown's instruction Harrington questioned Jones on January 12. As Har- rington testified Jones then said that he did not think it would be necessary for the supervisors to operate the plant ; "that he would wait and see." Jones testified that his only notification of the possibility that he would be called upon for strike duty came through a general meeting held by Brown shortly before January 14, 1946, and attended by about 50 supervisors at which Brown made statements similar to those outlined above as made to his divisional staff. Brown testified positively that no such general meeting was held and further testified that Harrington reported to him after questioning Jones that Jones had said "he would stay in the plant until it was put in down order or non-operative order, and would have to wait and see what he would do after that." In this state of the record and influenced to some degree by the uncertainty of Jones' memory of other occurrences at the time, the undersigned f nds that he was mistaken in his testimony given at this point. The testimony of Brown and Harrington is credited as substantially correct. Jones was on duty Sunday, January 20, 1946. He was instructed by Harrington to supervise and instruct the supervisors assigned to operate No. 2 pump station. This work fell within the area of his regular duties as an assistant general foreman. Jones accepted this assignment and remained there from 11 p. m. Sunday to 7 or S a. m. Monday. Thereafter he had a period of rest and got somq sleep. Jones testified that he heard a radio broadcast about 1 p. in. on Monday, January 21, telling of the 6 o'clock deadline established by the Association for supervisors remaining in the plant. He further testified that he received about 50 telephone calls that day relating solely to Association matters. He named, referring to the list of complaints, Emerson of this group, and Brabazon, Clem- ents, Elwood, Ensweiler, and Ramos from other departments discussed below, as among the 25 to 30 members with whom he had discussed the radio announce- ment. In the afternoon of that day Divisional Superintendent Brown -had received notification that the Association members were summoned to leave the plant at 6 p. m. He telephoned to Jenks and suggested that it might,be well to question Jones, in view of his position in the Association and his "veiy important key position in the division" as to his intentions. Jenks approved the plan. When Jones was summoned he asked, and }vas granted, permission to bring General Foreman Harrington with him. They came to Brown's office about 5: 15 p. m. on January 21. Brown then asked Jones "whether he was going to stick with us or whether he was not, or whether he was going to try to take other supervisors out with him'." Brown .testified that he "could not get a direct answer from Jones." Harrington testified that Jones said he was going out but would return later. Jones' testimony in point here reads: I told him [Brown] I had been in there thirty-six hours and I wasn't feeling so good. I had two hours' rest during that period, and I was going home to s 9s Brown further testified that Jones said in turn ; that he was sick and tired and wanted to go home ; that he thought he would do more good to management if he was outside ; that he had a responsibility to his wife , and that he lacked suitable clothing. 853396-50-vol. 84-59 878 DECISIONS' OF NATIONAL, LABOR RELATIONS'. BOARD t, get some rest and suitable clothing. He says, "If you leave the mill and you can not get through the picket lines your pay will be stopped." I told him I was still going to leave the mill, that I didn't care to stay in there under those conditions, and if I did get back through the picket lines I wouldn't stay in the mill twenty-four hours a day. He said, "If you do leave the mill, do not stop at the picket lines." Jones then left the plant at 6: 30 p. m. He was scheduled to resume his assign' ment at No. 2 pumping station at 7 that evening. Stuenkel, Quarnstrom, and Sanders, were questioned by Superintendent Corbin about January 12, 1946, as to their Willingness to accept strike assignments. Stuenkel gave the following testimony as to an interview held with Corbin "some weeks" before the first strike date : e ,I was asked if I would agree to work in the mill and help maintain the equipment and essential services in the event that it were necessary„ and I was also asked if I would be willing to live in the mill -4wenty-four hours a day if that were necessary. , j replied to the first question that I. would do everything in my power to assist in protecting the mill equipment and anything I could do to help man- agement. However I would not scab on the rank and file. To the second question I answered by saying that I didn't care to live away from my family in the mill for twenty-four hours a day, but that whether I ,would-consider that or not would depend upon the circumstances at the time. Stuenkel testified that he was again questioned by Corbin about January 12, 1946, and pressed to give a definite answer whether or not he would work during the strike. He stated that he refused to answer yes or no but gave-a conditional answer to the effect that it depended entirely on the circumstances under which th'e strike began. Quarnstrom's testimony was positively stated. It reads : They [Corbin and his assistant, Haubvic], asked me if I would be willing to come into the plant and stay twenty-four hours a day during the strike and I told them no. I told them I had a wife and home that I owed pro- .jtection to, and therefore that was more important to me. s s s s s s s s, ywe11, .I ,said that in the case of an emergency I would return to the mill and give them any assistance that I could, and also asked if there would be and so-called hard feelings due to my leaving the mill. I was told no, thee only, thing would be that I would lose my pay for the period of the strike. -,Sander"s did not testify but his stand in these matters is contained in unas- sailed 'and ,credited testimony by Brown. It reads : From.Leon Stuenkel was the report that he would stand by until the plant was, as we generally term it, "put to bed," or until operations were down to a non-operating level, but that he would not stay in the plant twenty-four "hours a day and-would' not do any work of the rank and file employees. CARNEGIE-ILLINOIS' STEEL CORPORATION' 879 Mr. Thomas Quarnstrom stated that he would not under any circumstances work twenty-four hours a day or take the job or position -of .a rank and file worker. Mr. Sanders made that identical statement 37 Quarnstrom and Sanders were excused by Corbin on Saturday evening Quarnstrom because he had contracted flu and Sanders because he wished to go to Lafayette, Indiana, some ¶135 miles distant, to attend a basketball game. Neither returned to the mill during the strike. Quarnstrom' whose credited testimony was that he took to his bed Saturday evening and remained there until Tuesday p. m., was visited by Barmore on Wednesday, and asked, as Barmore testified : Will you, if we can obtain pasage into the mill . . . without any danger to yourself or without going through a picket line,'would you be willing to go back to the mill and assume the duties that would be assigned to you by supervision?' He said, "No, Bill . . . I won't go back ihto the mill and work while there is a strike going on." Quarnstrom's testimony agreed as to the essential fact that he declined to return. However his statement was "I told him I did not feel well enough to go back. So he made the statement that he would return and tell Mr. Corbin and Mr: Brown of my statement." Sanders was not reached on January 20, 1946, when Corbin made attempts to telephone him both at his home and at Lafayette. He was, however, reached by telephone at Lafayette on January 28, 1946 Brown's undisputed and credited testimony is that he then told Sanders he could be gotten into the plant, and asked him if he would return to his employment. Sanders asked under what condi- tions he would work and was told ','that the supervisors were, staying in 24 hours a day and that they were taking over the operations." 3° Sanders stated that he would not come back under these conditions. Stuenkel fulfilled his duties on Sunday, January 20, 1946. On leaving about 5 that evening he told Corbin that he wos going home and would return in the morning "if he could get through the picket lines." Earlier in the day when Stuenkel refused to remain in the plant or to do rank and file work Corbin warned him, saying, "Well, in that case, Stuenkel, I doubt if the company will pay your salary during the strike." On Monday morning Stuenkel was stopped at the picket line. He telephoned to Corbin saying that he would be unable to report for his assigned duty. As Stuenkel testified, Corbin said "he guessed under 87 Corbin also testified, as to Sanders' reply : Mr. Sanders replied that he would not stay in the plant 24 hours a day, nor would he do any work that was normally done by any of the rank and file workers Corbin also stated that the answers of Stuenkel, Quarnstrom, and Sanders were "sub- stantially the same " 88 Barmore disclaimed knowledge of possible means of entering the plant Brown testi- fied that four supervisors were excused because of special circumstances. Three of these supervisors , after a period of absence , returned to the plant and remained until the strike's close. _ 89 This quotation is from Brown 's testimony. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances they would have to find somebody else to take my place, and I agreed they would." Stuenkel admitted that he had been active in promoting the movement of foremen from the plant. He testified that he had telephoned to "probably twelve" foremen on Sunday, the last day he was in the mill. He told them, as his testi- mony reads : I told them to the best of my knowledge management was refusing to let the rank- and file workers maintain the essential utilities, although the rank and file union was perfectly willing and ready to maintain, come in and maintain them. Therefore that released us from all responsibility except for a matter of shutting down equipment to prevent damage to the mill. I told them to get out of the mill as long as we had completed our re- sponsibilities in connection with shutting down the equipment to prevent damage. Stuenkel named Hampton, Jones, and Templin, of the complainants, among those to whom he gave this message. He testified further that he talked personally with "probably another dozen supervisors. He named, among other supervisors, Templin, Bennett (see below in this section) and Ciochetti of the complainants. Stuenkel was asked whether he told the supervisors with whom he talked "to spread the news among the other . . . supervisors in the plant." He replied, "I most certainly did." It will be remembered that Stuenkel was a member of the Association committee which was charged with the duty of administering that organization's publicized policy to control the actions of its members during the Steelworkers strike. It follows that his activities just described were official in character. After leaving the plant Stuenkel continued his activities. H,i telephoned to several supervisors within the plant but so far as his memory served, did not reach any of the complainants. Stuenkel's testimony as to what he told the supervisors reached at this time reads : I probably told them that management had pulled the wool over their eyes and was making suckers out of them, that the rank and file weren't very pleased about their staying in there, and reminded them that they would have to work with these same men after they get back in the mill. The same men they had worked with through the war and made such mar- velous production records with., I told them what the men were saying of them and asked them to act like men and come out. Stuenkel also admitted in his testimony that he had telephoned "very delicately", to "not over ten" wives of foremen who were known to have remained in the plant. In these calls he asked the wives "to try to persuade them' [the super- visors] to come out." Stuenkel had a share in selecting and instructing other Association members who make similar calls. Those selected were urged "to be gentlemen and very diplomatic" and not make such calls later than 9 p. m. In all these activities Stuenkel freely sought advice from officials of the Steel- workers. He felt handicapped by his inexperience in strike activity and was disconcerted by the failure of supervisors , members of the Association, to follow the strike policy which they recently had voted for enthusiastically and unani- mously." 11 As Stuenkel testified , by late Sunday evening "we had counted noses and realized that men we thought had some courage didn't have the courage of their convictions anyway." CARNEGIE-ILLINOIS STEEL CORPORATION 881 Bennett and Emerson worked in the steam production department. They were notified by their superintendent, Dahiheim, about January 12, 1946, of the possibility that they might be expected to stay in the plant. Dahiheim testified as follows : So I visited each foreman at his office and told him that he probably knew as well as I did that there was a strike impending and explained to him that we would probably have to run some of the boiler houses and power houses and if the rank and file workers did not .report at that time that we might have to operate these boilers and engines. I also told them that it might be necessary, to stay in the plant to do this. Emerson, whose testimony substantially agrees with that of Dahiheim just quoted, stated that he answered affirmatively. Brown testified that Dahiheim reported that Bennett had replied that "he would do his duty." Bennett's state- ment to Dahlheim, as recorded in the latter's credited testimony, that Bennett came to his office about 9 p. in. Sunday and "said that he had changed his mind about staying" shows that his answer earlier had also been an affirmative one. Dahlheim further testified that Bennett explained that "it was against [his] principles to stay." From Dahlheim's testimony it appears that Bennett felt the Respondent was responsible for the failure of rank and file employees to be on the job. Bennett left the plant about 11 p. in. Sunday, January 20, 1946. Emerson accepted his strike assignment and worked the turn from 7 a. m. until 7 p. in. Monday. About 5 that afternoon Jones, president of Local 44, told Emerson over the telephone that the Association was calling on its members to leave at 6: 30 p. m. Emerson thereupon notified Dahiheim by telephone that he was leaving when his relief came on at 7 p. in. Dahiheim warned him that "all the foremen that leave will not be paid." Emerson turned in his keys and left the plant about 6: 30 p. in. on Monday. Each of the six supervisors in this group received the suspension letter. Except Sanders, each had a hearing before Jenks and other officials and these five men were discharged as of March 18, 1946. Brown called Sanders on March 8, 1946, by telephone, and asked if he would appear for an interview with Jenks. Sanders told Brown that he had accepted another job and when asked "Do you then desire to be terminated?" said "Yes." 91 Emerson's testimony contains the following unassailed and credited testimony concerning his interview before Jenks and other officials : Well, Mr. Jenks, he said that he was surprised that I had left the plant, that I was about the highest paid man that did go out. I had been advanced and he couldn't understand why I left. Well, I told him the reason I did leave was because I was put on rank and file work and I wouldn't double-cross a man while he was on strike. Mr. Gott asked me if I knew the law on leaving the power plant while the plant was in operation. I told him I did, but I didn't leave the plant while it was in operation. My responsibility ceased when I was relieved. "Well," he says "You were supposed to go back the next morning." The positions of Emerson, Jones, Quarnstrom, and Sanders had not been filled at the time of the hearing because of changes made in the postwar reorganization. 41 The findings in this paragraph are based on unassailed and credited testimony by Brown Gott testified as to Sanders, "Mr. Sanders quit during the strike, and we received notice of his quitting." 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bennett had been replaced by the transfer of another turn foreman ; Stuenkel, by promotion of another supervisor. Bennett was rehired as a laborer on June 18, 1946. - Each member of this group of six supervisors was an Association member. Three of them held positions of prominence in Chapter 44. Jones and Stuenkel were active in organizing a movement of supervisors out of the plant on'January 20, 1946, and thereafter. All declined to work at rank and file employment and to remain in the plant for 24 hours a day. Each on leaving was warned that his pay would be stopped but to none as suggestion made of further penalty.42 It is clear that they engaged in concerted activity and that as defined in Section 2 (3) of the Act they retained their status as employees since, clearly, each was an "individual'whose work [had] ceased as a consequence of, or in connection with a current labor dispute * * * and who [had] not obtained any other regular or substantially equivalent employment." It is found that the status of these six supervisors during the strike period was that of economic strikers. As such, under the Board's well established policies, they were not entitled to pay during the' period in which they were ,in strike status, and they were entitled to rein- statement-when the strike closed. Sanders, however, plainly stated that he was not interested in reinstatement and that he had quit his employment with the Respondent. He was not discharged and his suspension was of even date with the close of the strike. The undersigned finds that he was not discriminatorily -treated. The suspension of Bennett, Emerson, Jones, Quarnstrom, and Steunkel on February 15, 1946, was, in effect, a refusal to reinstate them when the strike closed. Each of them was discriminatorily discharged on March 18, 1946, and thereafter refused reinstatement. By these acts Respondent violated Section 8 (3) of the Act. 2. Blast Furnace auxiliaries This group included four supervisors: Frank L. Banaski, Albert A. Fink, Yosif Spirovich, and Leonard B. Girard. Only Banaski and Spirovich were called to testify. Data as to the four supervisors is tabulated as follows : Rating First hired Made super- Approximate number Special strike assign- visory supervised ment Banaski------- Labor foreman-- 1940 ----------- Late 1940 ------ 7 to 15 ------- Hooker. Fink---------- -----do----------- ---------------- 3 to 4 years---- -------------- Dumping cinders. i Spirovich-----_ Track foreman-- September1939 ---------------- 5 to 15 ------- Did not report Girard --------- Labor foreman-- ---------------- ---------------- -------------- Helper at pig machine. A. D. Shanklin, superintendent of' the Blast Furnace auxiliaries and Ralph Scurlock, general foreman of the Stockton yards where Banaski, Fink, and Spiro- vich worked, testified as to them. Girard's case was covered in testimony by Division Superintendent, W. S. MacNab. Each of the complainants listed was twice questioned as to his availability for strike service. It appears' that on each occasion all expressed willingness to work during the strike except Spirovich. He testified that he first stated-that he would consider the matter and later demurred on the, score of :being troubled with . rheumatism and of 'concern for 41 Jones was so warned by Brown on leaving, and asked, "Does that mean I am dis- charged or terminated?" Brown replied, "Oh, no, not necessarily that. Just that your pay will be stopped." . , c.. ,=CARNEGIE-ILLINOIS STEEL CORPORATION 883 his family." Shanklin testified that on each occasion all his supervisors answered affirmatively. -However MacNab testified as to Spirovich that Shanklin on the first occasion, stated that he had agreed to remain and do whatever work was .necessary. As to the second interrogation MacNab testified that Shanklin reported that Spirovich said "that he would see . . . or think- about it. In 'other words-not a definite reply.". In.:this state of the record the undersigned credits Spirovich's testimony. Since each of the four supervisors"acted inde- pendently their cases will be discussed in turn" Banaski reported as directed in January 20. He was assigned to. work as a "hooker," at first with a crane, and later in the pig iron yard. He worked a full shift" on each day up to and including Friday. He had received word on Monday that his child was ill. The Respondent's visiting nurse went to his home that day and found the child had chicken pox but was better and able to be about the house. This was reported promptly to Banaski. Similar reports were made on Tuesday and Wednesday. On the latter day the nurse reported that the child was'so 'far recovered that further visits would be unnecessary. During'the week also the Respondent arranged for the delivery of 2 tons of coal to the Banaski home. Banaski, however, became increasingly anxious and on Friday, after a telephone conversation with his wife who told "him that a second child' had contracted the disease, announced that he was going home. Shanklin refused'to sanction his leaving and warned that his pay would stop and he "might.be out of a job." 45 Banaski left for home about 4': 30 Saturday. He made an effort to return on Sunday morning following but was turned back by the picket'line. He reported by phone to Shanklin asking if he would advise as to how he could come in. Shanklin replied that he "did not care to give him any advice about how to come in 'the mill." Fink was assigned to night work dumping cinder ladles. He finished a shift Sunday night, working from 11 p. in. to 7 a. in., and worked a full shift on Monday, Tuesday and Wednesday nights. Thereafter he complained that he was worried about his family with whom he could not communicate since he had no telephone in his home. Both Shanklin and MacNab refused to sanction his leaving the plant and endeavored to dissuade him from doing so. Shanklin testified that MacNab told Fink he [MacNab] "could not be responsible for the consequences" if Fink persisted in his expressed purpose to leave. However, Fink left about 7: 30 a. in. Tlin'rsday. Heyreappeared in the plant Thursday evening, February 7; and stated to Shanklin, "Well, I am here ready to go.to work."" After a consultation with MacNab, Shanklin sent Fink home. Spirovich, although he was duly notified and promised to do so, did not report for strike duty as directed.47 His testimony was that he fell ill at midnight Janu- ary 19, and was confined to bed for 3 weeks, under a doctor's care. Shanklin 48 Spirovich's testimony reads : I told him, I am afraid to,stay because I have four children and a wife. 4a Banaski testified that on the first occasion Shanklin said, "that if we weren't at the Stockton department Monday morning when the first strike was supposed to have been pulled, that we might as well go and get our pay, we.was out"of'a job." He,further testis fled,that Shanklin later told the supervisors to disregard this statement. Shanklin denied this testimony, but after considering the demeanor of the witnesses and 'in view of other discrepancies in Shanklin's testimony the undersigned credits Banaski's statement. . 45 The quotation is from Shanklin's testimony. Banaski admitted being told by Shanklin thtyt "hecwould not,be responsible for my job." - " 46 Shanklin so testified - - , 47 Spirovich testified that Shanklin said in his second interview, "If you don't stay we are going to terminate you." 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'sent Supervisor J. J. Little to Spirovich's home to inquire as to the reason for his absence. Little found no one there but interviewed Spirovich's father-in-law at his place of business and reported to Shanklin that this, relative stated that after consultation "the family had decided that Joe [Spirovich] would not come back to work." Girard's work was directly, in connection with the blast furnace. The other three supervisors in this group worked in the Stockton yard. Girard duly reported and was assigned to general labor work at the pig machine, He worked continuously until February 2, when he reported sick. On examination at the plant hospital he was found to have a low fever and it was' recommended that he be relieved from duty. Girard insisted on going home. MacNab's testimony at this point reads: I cautioned him that'if he left the plant against the doctor's instructions or advice, that I wouldn't be able to protect his job or his pay., He said [it] didn't make any difference, he was going home, and he left the plant. Each of these supervisors received the form notice of suspension. Banaski and Spirovich were discharged. Fink was called in and offered reinstatement in his old position, effective on March 20, 1946. Fink accepted this offer. He received no back pay. Girard was offered reinstatement, with full back pay, effective March 20, 1946. At the time he had accepted a position with the American Bridge Company and at his request he was transferred as of that date to that Company. He received full back pay from the Respondent. As noted above his name was struck from the complaint on motion by the Board's attorney. Both Banaski and Fink applied to Shanklin and MacNab for rein- statement on the day after the strike was over. They were told the matter was in the hands of management and they would be informed when a decision was reached. . The position of Banaski had ,not been filled at the close of this hearing since the number of incumbents in his rating had been reduced. Spiro- vich's post had been filled by promotion of a labor foreman. Banaski did not join the Association ; Spirovich joined in February 1946 after the strike settlement. Under the circumstances set forth above the undersigned finds,'after consideration of the full record that Banaski, Fink, and Spirovich in leaving their posts, in effect, joined the strikers. Fink's status as. a striker ceased when he made an unconditional offer to return on February 7, 1946; that of Banaski and Spirovich when the plant reopened on February 18, 1946. It is found that Banaski, Fink, and Spirovich was discriminatorily suspended; that Fink was discriminatorily refused reinstatement from February 7,' 1946, until. March 20, 1946; and that Banaski and Spirovich were discriminatorily discharged on March 18, 1946, because they joined in concerted activity with other supervisors in refusing to serve during the Steelworkers strike. 3. Open Hearth 'Transportation , The function of this department is to handle transportation incidental to the operations of the open hearth division. It is equipped with 31 locomotives, 31 locomotive cranes and a complement of cars, trucks, and automobiles. The rail equipment is of standard gauge fitted to supplement the service rendered by the railroad serving the plant. Raw materials consisting mainly of limestone, scrap iron, and iron ore are delivered to the open hearth furnaces and the molten metal produced is poured into molds placed on stools on ingot cars. These cars CARNEGIE-ILLINOIS STEEL CORPORATION 885 are then moved to the soaking pits or storage yards. The debris from the open hearths and the slag is also transported to the "skull crackers" where it is broken. A portion of the slag and the scrap iron salvaged is brought back to the furnaces and recharged. Thomas J. Griffin 48 is superintendent of transportation. His assistant is J. A. McKerlie. The department has 58 supervisors working in 3 subdivisions. The first is the locomotive shop of which Elmer C. Bauer is general foreman and John P. Siebenhaar is assistant general foreman. There are 10 supervisors employed here including 5 of the complainants ; A. M. Andrews, John Friedrich, Robert E. Hampton, Joseph Insogna, and J. Ryan. The second subdivision is ingot transportation of which, John Kaminski is general foreman. This subt division employed 17 supervisors including John C. Ciochetti,49 Frank B. Elwood, and J. Wallace Sword. The third subdivision was the garage which employed 11 supervisors. Since none of the complainants worked'there its organization is not material here. Griffin, McKerlie, Bauer, Siebenhaar, and Kaminski appeared and gave-testimony as did complainants, Ciochetti, Friedrich, Hamptod, Insogna, and Sword. The record discloses that Ciochetti, Friedrich, Hampton, Insogna, and Sword were Association members., Other data concerning the group are tabulated as follows : Rating First hired ' Made super- visory Approximate number supervised Specialstnke assign- ment f Andrews ------ Assistant fore- ---------------- ---------------- -------------- Crane operator. • Ciochetti-----_ man. Assistant yard- - . 1936----------_ 434 years ------ 20--------- -_ Drive car. - master. t i Elwood-------- Friedrich EO---- -----do----------- Assistant fore- ---------------- 1925 ----------- ---------------- 4 years -------- -------------- 5 to 25 ------- Do, Maintain cranes, Hampton ------ man. Foreman -------- 1923 ----------- 21 years------- -------------- Crane hostler. 1nsogna -------- -----do--------- - 1917---------- 1930----------- -------------- Do. Ryan---------- -- -----do--------- -------- ---- ---------------- -------------- Maintain cranes. Sword---------- Assistant yard- Nov. 30, 1936-- May or June 8 to 14 ------- Drive car. . master. 1940. Each of these supervisors was interviewed by Griffin on January 12, 1946, in the presence either of McKerlie or the general foreman of the subdivision involved. Griffin testified that he tried to make these interviews " as brief' as possible." He stated the content of the interview as follows : rl 1' Well, generally,,I, told them about the lists being, submitted to the union, the list of the rank and file workers. And I said if the lists were approved that'supervision would do no work ordinarily done by the rank 'and file work- ers. However, if the lists were not approved and there was'a'strike, that I would like him to stay in the plant and take care of any contingency for the duration of - the strike,' and that I wanted him 'to work as management directed. It was Griffin's testimony that all "replied or indicated that they'wduld."' ' He further testified that Insogna stated he was afraid that someliod r'would throw 98 Griffin's name was sometimes erroneously reported as Griffith in the transcript of testimony. 48 Ciochetti's name had been legally changed to Charles. He testified under his newly assumed name. 50 Friedrich's name was sometimes erroneously reported as Fredrickson. 886 DECISIONS OF NATIONAL LABOR RELATIONS'-BOARD it bomb at his house and that "Friedrich said he was scared." Bauer fully con- firmed this testimony.51 -The supervisors who appeared as witnesses : Ciochetti, Friedrich, Hampton; Insogna, and Sword all denied generally that they had either promised at any time to stay in the mills for the duration of the strike or that they had 'agreed' to accept any assignment given them - under such conditions. More specificallg Ciochetti testified that on January 12 Griffin in the presence of Kaminski told him that "if there was a strike the C. I. 0. was going to man the necessary facilities during the strike, and that as- supervisors we would present our supervisors' cards at the gate and we would be allowed to pass in and out on our scheduled turns." He further stated positively "That is all that was said." Friedrich's testimony in point reads : Well, I told him [Griffin] that I was willing to stay under the conditions of our shop, locomotive shop, that we would see that everything was drained according to the cold weather and other conditions, and that I was not willing to stay in for the duration. I asked him further if he could tell me how long the strike would last and well, of course, he didn't know, he said. Insogna gave testimony-recorded as follows : _ Well, Mr. Griffin says that he would like for me to stay in, for us boys to stay in, and he didn't want me to as much as pick up a hammer, he didn't want us to do nothing. - - - When Insogna demurred to staying in the plant Griffin again assured him as Insogna testified that his' stay would only be precautionary and that he would not be expected to work. Hampton's testimony as to this interview is recorded as follows : He told me the strike was coming off and that it was the wish of the com-' pany that I should stay in tliere.` -,So I told him that I had responsibilities at home. I had fires to attend to and I couldn't see' how I could stay in there. And he insisted that I would have to stay in there. So I asked him to give me time to consider it,' which he did:" " Hampton's further testimony , was, that after conferring on, the, matter with, his wife, he told Griffin, if youhave an,^emergency here I will stay for that ewer` gency, but as soon as the emergency is over I am going home." Finally; Sword gave testimony pertinent here which reads : ;, . Mr., Griffin made a ,statement that the supervisors were being asked to come in and . stay in the plant: for twenty-four hours, and that they were depending on ,the.uniog _supplying the men to man these jobs., The,super- ,visors would -be gxvvn a pass and we could come back and forth , in and out sx Bauer corroborated Griffin as to Insogna , Hampton, Ryan, Andrews, and Friedrich. His testimony,relative to the- interviews read:: i i Well„ he.,GGrifiinl stated that a list bad been submitted or was to be submitted to ' the union for their approval to allow lank and file men to come into the plant and ,maintain the facilities required to furnish the city of Gary with utilities, and if this was refused -he asked each one if they would stay in the plant for the duration," and, as I said before, if the list was not approved to work at management's direction at an'y job necessary to see that these utilities were provided. In all instances the final answer was, Yes, they would remain in if necessary. CARNEGIE-ILLINOIS STEEL CORPORATION 887' of work through the picket line, and'also that if there was no need for us; we would have been allowed to stay at home and would receive our base'pay through the mail. Sword stated further that nothing was said about the kind of work supervisors would be expected to. do. 'After considering this conflicting testimony and the demeanor of the wit- nesses concerned in the light of the entire record, the undersigned*concludes'and finds that the discrepancies arise from two causes ; the varying emphasis placed by supervisors'and management on the probabilities that rank and file workers would perform the essential work during the strike and second, the natural propensity of human memories to gloss past conversation to fit divergent interests as they clearly appear later. The witnesses are absolved from intent to mis- represent. Beyond that the undersigned does not feel obligated to go. The essential and material facts here are the actions taken by the complainants, at a later date. The supervisors were summoned to the plant on Sunday, January 20. They were advised to bring clothing for an indefinite stay. Bauer, as he admitted in his testimony, failed to notify Insogna and Friedrich to bring extra clothing. At their insistence they were allowed to return home about 3 p. in. on Sunday to inform their wives of,the situation, and get necessary clothing. At about this time also five supervisors were excused from strike duty. Griffin gave the following explanation in his testimony : ' Christoph's health was not so good and we knew that and as a consequence we did not keep him. Cherry, I did not feel would make a very. good driver. We excused him: Yokum and Szikos were the newest supervisors. They. had only been on a short while and with them that was probably the main reason for permitting them to go. Sullivan asked to-be excused if we did not need him ; that he had a small farm out in the country and he should like to look after it if we did not have to have him. He was excused because of that. Over all, they were excused because we did not need them. That was the main thing. They all had agreed to work at management's direction. Griffin interviewed each of the remaining supervisors agaiii'individually and gave each of them a definite, assignment. As set forth above Ciochetti, Elwood and Sword were instructed that they would drive cars. No "definite work was given them until shortly after` midnight Sunday when McKerlie 'telephoned to say he needed some drivers and would be right over. When he arrived after some preliminaries, not material here, he stated to Ciochetti, Elwood, Sword and Supervisor Yovich that they would have to drive trucks. As Ciochetti testified : V - Well we told him he would have to get the rank and file to drive the trucks and we would supervise it, but as far as driving the trucks ourselves, we wouldn't do it, that was doing rank and file work. McKerlie's testimony substantially corroborates this statement. On Monday morning about 10 o'clock McKerlie returned and told Ciochetti, Ellwood and Sword that because of interference by the pickets the crews.of-the railroad serving the plant could not function. In consequence it would be nec- essary for the Respondent to operate some diesel engines. McKerlie asked these supervisors if they would act as switch men. Ciochetti testified as to the supervisor's position at this time, "Well, we had all agreed, all nine men, not 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to stay in the plant. We were all going out on a six o'clock deadline."' Mc- Kerlie's, testimony in point here reads : They told me if I could get somebody to switch on the engines that they would supervise the movements. Shortly after 1 p. in. Griffin arrived and interviewed the three men individually. Griffin testified, regarding these interviews as follows : I asked [Elwood] why he didn't fill his assigned job . . . and he said that he came from a union family and as I recollect he said he had a brother working on the railroad and that it would kill him [or he would kill him], if he did take somebody else's job. I told •[Ciochetti] that I thought he was making a mistake, throwing away some very go'od' opportunities, but he said he came from a union family and he couldn't face them if he worked. Mr. Sword . . . was very brief. He just said that he would not work. Griffin told each of these supervisors that if he would not work he would have to go home and that he would not be paid. They nevertheless left the plant about 3 p. m." , The five supervisors in the locomotive shops were given assignments, as set forth in the tabular presentation above, in connection with operating or main- taining cranes. They undertook these duties and for the most part completed a 12-hour turn. Those who testified stated that they found the facilities for sleeping and meals unacceptable. On Monday Hampton received a telephone .call from Supervisor Stuenkel, who was a member of the Association's policy committee." As Hampton's testimony reads : He told me they had given the company twenty-four hours . He said he knew that I was scabbing on the job and that I had to come on out of there, that I did not belong in there. That is just what he told me. Hampton checked the matter with Hillary Jones, president of Chapter 44 of the Association, and communicated this message to his associates in the loco- motive shops and, as he testified, they "came to an understanding that we were doing rank and file work and we couldn't stay in there." Hampton testified he then told Slebenhaar "I had decided to go home, as I was scabbing on the job and I didn't like that. Furthermore, I had to come back and work with them." Siebenhaar telephoned to Bauer and he in turn to Griffin. Gott had formerly been in this department and accompanied Griffin as did McKerlie. Gott then 52 The undersigned notes, in this connection, that Clochetti had been urged by Stuenkel to follow the strike policy adopted by the Association and that Elwood had been similarly approached by Jones. Kaminski gave the following testimony pertinent at this point : Mr. Elwood said, "You are laying me off. Will you give me a slip that you are laying me off?" And Mr. Griffin told him, "I am not laying you off. I have work for you to do, and if you don't drive a car 'I can't give you anything else. You will have to go home."' 54 Hampton's testimony at this point corroborates that of Stuenkel• set forth above. t - CARNEGIE-ILLINOIS STEEL CORPORATION '889 'interviewed each of the men in the presence of Griffin and McKerlie. Griffin's credited testimony relative to these interviews is recorded as follows : The first one was Mr. Hampton. Mr. Gott asked him what was the matter that he was going home leaving his assigned job and he answered that he had received a telephone call ; there was no alternative but to go.66 * * * * * * ... Joe Insogna . . . was the next one and when he was asked why he was, leaving he said he was afraid someone would throw a bomb on his house. * * * * * * * I think Mr. Andrews was the next and he was asked why and he said he would not scab on the job. He was going home he said, and Mr. Gott told him that he wasn't scabbing and he tried to assure him but he wouldn't listen. Friedrich came in then. He said he was scared. * * * * * * * The last one to come in was Ryan and he was asked about staying. Why, one thing and another and he was also asked if anybody had threatened him and he said that he didn't want to answer that question...: We did think that he seemed to be a little afraid of something. . . . 68 Gott told each of the men that he was taking a very serious step ; that it had always been the responsibility of supervisors to work as management directed and that they would not be paid if they left. However, the five supervisors left at the conclusion of their interviews about 7 p. in. on Monday, January 21, 1946. All of the eight men in this group received suspension letters. All were inter- viewed thereafter by a committee headed by Jenks, and all were subsequently discharged, except Ryan. Ryan had lost an eye while in service of the Respond- ent. He found difficulty in getting employment because of this disability. He appealed to Bauer for consideration. Bauer interceded with Griffin and Gott. As a result he was reinstated in his position effective March 20, 1946. Griffin explained in his testimony, "The fact that the man had lost an eye in our plant, even though he had been paid compensation for it, we still felt that that did entitle him to some consideration, and that was the reason for reinstating him." Andrews, Ciochetti, Elwood, Friedrich, and Sword were not replaced due to changes in organization. Hampton and Insogna were replaced by promotions of other supervisors. 0 Hampton's version was : - Well, Mr. Gott wanted to know why I was leaving the plant. He said, "You were going to stay for the emergency." I told him, " as far as I am concerned the emergency is over. You had twenty-four hours to get these men on the job," and I says, "the emergency is over as far as I am concerned. I says furthermore, I told him, that I was doing rank and file work and I didn't like it. I also told him it was a serious thing, too, because I would have to come back and work and these men afterwards would make it pretty tough for me because I would be taking away their bread and butter. I didn't say anything else. He told me if I went out that he didn't know when the company would need me. ee McKerlie stated the replies of these supervisors succinctly, as follows : Well Insogna came in and said he was afraid that somebody might bomb his home or injure his family, and Andrews said that he wouldn't scab on the job, and Friedrich just appeared to be scared., Friedrich and Ryan said that they just couldn't work. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from this statement of events that the eight supervisors in the group acted concertedly and were guided by the policy laid down by Chapter 44. ,Each of the five supervisors who appeared as witnesses stated that he knew and approved of this strike policy. Stuenkel telephoned to both Ciochetti and Hamp- ton, on Monday, January 21, 1946, and reminded them forcibly of their obligations under Chapter 44's policy. Hampton checked the 'matter with Jones. Elwood had also been reached by Jones. It is clear from the record that the subgroups of,three and five thereafter discussed the matter and agreed as groups to leave at 6 p. m. that day. In doing so they assumed the status of strikers and were clearly entitled under the Board's well established policies to reinstatement on February 18, 1946. It is found that the failure to so reinstate them and their ,discharges, except Ryan, and subsequent refusals to reinstate them, were dis- criminatory. Ryan was discriminatorily refused reinstatement from February 18, 1946, to March 20, 1946, the date of his reinstatement. - 4. Billet and Forty-Inch Blooming Mills of the 21 supervisors listed, Steven N. Barrick, B. J. Byrne, Marion Coons, -Frank,Ensweiler, William Fisher, Theodore Gielniali, Daniel J. Keserich, Nicholas J. Keserich, and William Pendleton appeared as witnesses. All were members of the Association. The following table gives data regarding these supervisors : Rating First hired Made super- visory Approximate number supervised Special strike assign-' went Ban, Albert___ Assistant yard ________________ ________________ ______________ Coke plant. foreman Barrfck________ Yard foreman--- June 1925----- une19 1939----------- About500___ Do Byrne --------- Turn foreman ___ 1929_- 1932___________ About 325___ Not 'assigned, physi- cally unfit Coons _ ________ Yard foreman--- June29,1933___ 1941___________ 8____________ Canteen work Ensweiler_____ Turn foreman--- Sept. 9,1916 --- July 1, 1941___ 200__________ Not assigned. Fisher_________ Yard foreman--- 1928___________ 1941___________ 40 to 50______ Coke plant. Fusick, John Assistant yard ________________ ________________ -------------- foreman. Gielmak_______ _ do__________ November 1938 ----------- About 100___ Coke plant; scrubber 1925 operator Gorman , Yard foreman--- ---------------- ---------------- -------------- Coke plant. ,Charles C. Gregor, Ste - -----do---------- ---------------- ---------------- -------------- Do. phen. Guba, Mike_-_ Zoneforeman___ ________________ ________________ __ Keserich, D___ Assistant gen- 1918___________ 1926___________ About 500___ Not assigned. eral foreman. Keserich,John Turn foreman ___ ________________ ________________ -------------- E. Keserich, N. J_ Assistant yard July 2, 1933 --- 1942 or earlier.. 30 to 40____ __ - Coke plant. L o w r y , foreman Yard toreman--- ---------------- ---------------- -------------- Do Milton - Majchrzak, Zone foreman ___ ________________ ________________ -------------- John S. Nawrocki, Assistant yard _ foreman. Pendleton----- Yard foreman ___ 1929___________ 1938___________ 125 ---------- Coke plant, gas tender. Smith, Lance-_ Zone.foreman___ ________________ __-------------- S w i g o n , Assistant yard ---------------- --------------- Phillip foreman. Williams, -----do---------- ---------------- ---------------- -------------- David. Testimony was given by T. J. Connors, superintendent of the department, by Charles J. "Chuck" Harris, his assistant superintendent, and by Mike Ervin," ,general yard foreman. On instructions by J. J. Golden, division superintendent, 57 Ervin's name was frequently carried as Erwin. CARNEGIE-ILLINOIS STEEL CORPORATION 891 on Friday, January 11, 1946, Connors and Harris interviewed each of their 74 supervisors on that day and Saturday following. Connors questioned 54 asking each of them whether in the event of a strike they would be willing to protect the .plant facilities and see that the public utilities for the city of Gary were main- tained.o8 He did not state the exact nature of the work each individual would be asked to perform., Harris interviewed some 20 or 22 supervisors, on the same day. It was his testimony that he asked each of them, in effect : In case the CIO calls a strike and an agreement is not reached, or main- tenance men do not take care of the utilities and the upkeep of the mills, will you, as a supervisor agree to stay in the plant and do whatever job manage- ment deems necessary for an indefinite stay. Connors testified that the supervisors whom he interviewed -!'all acquiesced" ; Harris, that all,, gave affirmative answers except Ensweiler, who gave as a reason for his unwillingness to agee that he had to care for. 'tourist "cabins and a filling station which he had developed for his son., These enterprises required Ensweiler's attention since his son was in the armed services. Ensweiler testi- fied that he further said, "I don't care about working, doing any' rank and file work. I wouldn't mind taking care of my own job, if I can go to and from work." Harris and Connors called Ensweiler in again and received his reluctant assent. - Most of the supervisors in this group, who testified,,were well inforffied of the Association's strike policy and approved of it.69 Typical 'expressions of supervisors' attitudes are quoted below : - • ^ ' ' Pendleton testified that Connors put the matter to him by'asking,,'fin case 11 - the CIO would not furnish men at the coke plant would I be willing to go over there and do rank and file work?" Whereupon Pendleton said only,-that he "did not think that the CIO would refuse to give the men' [for] the.work that needed to be done." ' Byrne in his testimony stated that Connors in the week before January -1.4, 1946, told him they expected an emergency at the coke plant and asked if he 'would be willing to go there. Byrne's further testimony-reads : I told him, "No, I couldn't if there was any manual labor, connected with it, I couldn't do it. I wasn't able."I He says, "Well there will be no- manual labor 'connected to it." 'Byrne suffered from gallstones and-this disability was known to Connors. - 'Gielniak testified that he was asked by Connors before January 14, 1946, if he would help out during the strike to protect company property and that he replied that he would if he did not have to sleep in the mill. It was Gielniak's .further testimony that Connors replied,' "O. K." and that nothing further was .said. . . ' D. Keserich's testimony in point here reads : So I, came in there and he'[Connors on January 11] said, "-You know there is a strike going on?" and I said, "Yes." He says, "What about you doing 68 Connor's testimony lacked In exactitude and specificity. The,nature of his recorded testimony suggests that his statement of the matter to the; supervisors in these brief inter- views might not have been clearly put. Thus Barrick, when asked whether he approved of, every word of the strike policy, replied : "At the time, absolutely." Again on being asked, "You subscribed to the policy 100 percent?" Barrick replied, "From what I had seen and heard after I had walked out, absolutely." Coons, although an Association member, was an exception It was his credited testimony that he did not know of the Association's strike policy. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance work while the strike is`going on ?" I says, "Well, there is no need of that. We are going to have rank and file workers come in and do that." So he says , "Well, you know, how it is. You know how the CIO is. They may not go through with it." So I said, "Well , that ain't the way I heard it." So then we got to talking, and I said, "for how long would we have to do that." Well, he said it wouldn't be over twenty-four hours. I said, well, for twenty-four hours I would help out in an emergency . "Otherwise , I don't care to stay in here and live in here." 0° Barrick testified that he was asked by Connors about January 7, 1946, if he would do maintenance and production work if the Union refused to do so. His further testimony reads : My answer was that upon good authority I had understood that the union would not refuse to do maintenance work: He came back with an answer, I believe, pertaining to, "Well, what would you do if the union would refuse?" There was a little dispute therein a way because I insisted that my under- standing was that the union would not refuse, and I guess he gave up and let it go at that.' Fisher testified that Harris asked him whether he would be willing to stay in long enough to see if the Steelworkers furnished enough men to do the main- tenance work . Fisher's further testimony is recorded as follows : I said, "Well, lets put it this way, Chuck ; The strike starts at midnight, and' if the union puts in enough men at midnight, the day turn and the four 'to twelve, I will be allowed to go home after that?" ' , He said "Yes." I said, "Under those conditions, yes." Both Coons and N. Keserich admitted telling Connors that they would be willing ,to work. Since the foregoing statements .by Board witnesses are detailed and specific, mutually corroborative and were unshaken in searching cross-examination they ate'accepted by-the undersigned. Insofar as testimony by Connors and Harris conflicts with this testimony it is rejected. When word was received of the strike 's postponement about 6 p. in . Saturday, the department was promptly replaced in operation . Connors fell ill and was absent during the strike period. On January 19, Saturday , Harris received in- structions to call all supervisors to the plant on Sunday . Accordingly , he ordered those on the day and .afternoon turns to report at 8 a. in. and those on the night turn-to report at noon . That morning in conference with O. A. Clarke , assistant division superintendent , and,A. D. Beers, superintendent of the Central Mills, Harris was instructed that only 40 of his supervisors would be needed . He,was 1 60 Connors denied that there was mention of a 24-hour period. -After considering the .testimony of these two witnesses the undersigned credits Keserich's testimony. 61 Barrick further developed his standpoint under cross-examination, saying Well, . . . I as one of the members had approved of that [the strike policy] a week prior to the 14th that would be in January [1946], and my interpretation of that was that it was upon our judgment whether the company or the union would be responsible and my judgment was in this particular case that the company was respon- sible . . . [for] breaking negotiations so the men could not maintain'the proper facilities - Later Barrick testified If I considered the company responsible I wouldn't do any rank. or file work or sleep within the plant. Anyhow I wouldn't sleep in the plant regardless CARNEGIE-ILLINOIS STEEL CORPORATION 893 authorized to select those to be excused and to inform them that they would receive their base pay as long as the strike was in effect. They were instructed that they were subject to call and to make such arrangements that they could be reached by telephone. Harris selected certain groups of supervisors of short service to be excused and gave preference to those who had no supervisors under them. He excused 7 inspection foremen, 4 roller supervisors, 4 turn rollers and 17 zone foremen. While conferring with the last group he was told that 3 supervisors had not reported. He thereupon called for 3 volunteers from this group. As he testified he was surprised by a certain lack of enthusiasm in the response given. But 3 supervisors, Guba, Majchrzak and Smith finally agreed to remain. A few supervisors were excused because of illness. Harris in his testimony accounted for 31 supervisors, whom he excused.62 It appears that the majority of them were members of the Association. During the afternoon about 14 supervisors were sent to the coke plant and interviewed by officials there. Not all were given definite assignments. All returned to their own area. Some cots were set up. Mattresses were too few in number and dirty. Blankets were in inadequate supply. The supervisors also had difficulty in getting served at the canteens. Long waits in the cold preceded service in the cafeterias and the food was scanty in variety and poorly prepared 88 Most of the men retained were members of the Association and well informed of its strike policy. There was increasing discontent which culminated in a decision to leave the plant. Harris was informed by Ervin of this decision and interviewed the men before their departure. He agreed that the supply of cots and mattresses was inadequate and that the mattresses were in an insanitary condition. Harris further testified that "he took their word for it" when they voiced complaints about the facilities for feeding the supervisors. The super- visors testified that he stated he could not blame them for leaving and wished he might go with them.84 When the men prepared to leave, Ervin protested that he would be left without assistance in protecting the area. It was then agreed that N. Keserich and Swigon, whose regular turn was from 12 midnight to 8 a. in. would remain and act as fire patrol. Those listed above, except N. Keserich, Swigon, and Coons, then left the plant about 10: 30 p. in. Keserich and Swigon performed their patrol duties and left shortly after 8 a. in. Monday. None of these supervisors returned during the strike. Such of them as attempted to enter the plant on Monday 'morning, and thereafter, were turned hack by the pickets. Coons had been ill with the flu and had returned to duty a week before the strike began. He was not assigned to any duty on Sunday. On leaving, the supervisors awakened him and told him of their decision. Although urged to go with them he declined. On Monday, he was sent to the coke plant but having - 61 Harris stated that 37 were excused and it is possible that his listing was incomplete. At another point he testified that the total excused was "around 35 to 40." In general his mathematical computations in discussing the event of the strike were uncertain. 63 The food situation was so difficult that several of the supervisors left the plant, although refused permission by Ervin, ate dinner at a nearby restaurant and on return- ing brought 16 pork chop sandwiches for their associates. 04 Fisher's testimony at this point reads : Well we told Harris that we were going home, and we were willing to come back at the regular scheduled time. He made a call. I would like this to go on the record, that when we made a complaint to Harris, he agreed with us that conditions was bad, and he said, "I wouldn't mind going home myself with, you." D. Keserich testified that Harris said , "I don't blame you guys a damn bit. I wouldn't sleep in there myself." 853396-50-vol. 84-60 894 DECISIONS OF. NATIONAL, LABOR RELATIONS, BOARD an erroneous assignment he was not retained . About 10:30 he was sent to the main canteen. He worked there from 11:30 a. am. on Monday until 7 a. in. Tuesday. He was expected thereafter to work the night shift from 7 p. in. to 7 a. in He contracted a cold and on arriving at the canteen at 7 p. in. Tuesday decided to go home because of his illness. Neither Harris nor Ervin, could be reached. Coons thereupon left word for Harris with Paul Loy, the mill labor foreman, that he "was going out and wouldn't be back until after the strike." He left shortly after 7 p. in. Tuesday, January 22,1946. When the men left plant Harris stated, after conferring with Clarke, that their pay would be stopped. Ensweiler then inquired if that meant they were dis- charged. Harris replied, "No, absolutely not." 85 Each member of this group received a suspension letter and was offered an opportunity to appear before Superintendent Jenks and other officials. D. Keserich and Fusick did not appear. Harris testified that Keserich stated he was "not interested" ; Fusick said only that he was "not coming." Keserich testified that he was of the opinion that the hearing was of the nature of a kangaroo court. Under cross-examination he explained : That is when you don't have nobody' representing you. You are just guilty bet ore you start. That is the way I always take it. For the light thrown on the conflicting attitude of supervisors and manage- ment, testimony regarding two termination interviews is included here. 'Fisher testified that he was asked by Jenks why he left,the plant. His answer was that he had two reasons for leaving ; sickness in his family and the sleeping and eating facilities in the plant. He denied that any pressure had been exercised to cause him to leave,the plant. When asked if he came out to help the CIO win the strike he replied in the negative, saying that he had nothing to do with the CIO.HB N. Keserich gave the following testimony relative to his interview with Jenks and other officials. It reads : Mr. Jenks asked me why I left the plant, and I told him that I had just returned, from 'three year's overseas., I just had been home over three months, and I didn't feel that I should stay in the plant during the strike. I didn't know how' long it would last,' and I told him, that no one asked me personally to stay in the plant anyway. He laughed about that and said no one asked him to stay either personally, but he stayed. Each of these 21 supervisors was discharged on or about March 18, and none had been reinstated at the 'time of the hearing. Of this group Ban was rehired on June 21, 1946, as a laborer, Coons on June 17, 1946, as a burner, Ensweiler on June 24, 1946, as a pipefitter's helper,' N. Keserich on June 24, 1946, as a laborer at the merchant, mills, Pendleton on, August 8, .1946, ,as, a laborer, and ,Swigon on June 21, 1946, as an oiler. At the time of the hearing's close all were still'employed at'these•ratings except Ensweiler who'quit after 3-weeks because; m Barrick so testified and his undenied statement is credited by the undersigned. 00 Assistant Chief Engineer Hugh Smyth testified that at a chance meeting with Fisher after the strike had been settled , Fisher ascribed his leaving the plant to the fact that "some of the boys had had a few drinks and got hotheaded and started to go out " Fisher then left because he did not want to be left alone in the plant . It was Smyth's further testimony that Fisher stated "he didn't think it was a wise move he made " - c - CARNEGIE-ILLINOIS- STEEL CORPORATION' , - 895 as^he-testified, he could not stand the humiliation of his lower rating. Keserich had been made a hooker at a slighter higher rate of pay. Fisher gave un- assailed and credited testimony, that on application to Personnel Director Goetze for reemployment after-receiving his discharge letter, he was told, as his testimony reads : There wasn't even a laborer's job for me. I was told that very specifi= - cally." Ban, Byrne, Fisher, Gielniak, Gorman, Greger, N. Keserich, J. Keserich, Lowry, Pendleton and Williams had been replaced mainly by promotions from lower ratings.B7 The position of Barrich, Coons, Ensweiler, Fusick, Guba, D. Keserich, Majchrzah, Nawrocki, Smith and Swigon had been eliminated -during the postwar reorganization. It is very clear that all of the 21 supervisors in this group, except Coons, acted concertedly in leaving the plant. They were motivated in the first in- stance by the unacceptable conditions in the plant, particularly by the inadequate facilities for sleeping and eating. However by the testimony of Board wit- nesses, it appears that they were well informed as to the Association's publicized policy and were in sympathy with its provisions. Coons made an effort to fulfill his promise ,to remain in the plant but on Tuesday, January 22. 1946, decided, because of illness, .to go home. As Jenks pointed out in his final interview with 'Coons, he might have availed himself of plant hospital facilities and thus have been available for further duty when recovered. By electing rather to go home Coons, in effect, became a striker and joined his 20 associates of this group. It is found on the above, statement of facts that the Respondent in refusing re- instatement to these 21 supervisors oa February 18, 1946, when the strike was settled and thereafter discharging them; and subsequently refusing to reinstate them, discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment. - 5. Forty-four Inch Blooming Mill and Thirty-six Inch Slabbing Mill , There were seven supervisors in this group. One, Arthur J. Arthur was a group leader in the accounting department. He was closely associated with the six -other supervisors. both in his employment and in his activities during the strike. He. is the only supervisor in the accounting department involved in this pro- ceeding. For convenience he is included with this group. Arthur J. Arthur appeared as a witness as did his immediate supervisors, Presley W. Ray, a bureau chief, and Henry B. Curtice, an assistant works auditor. C. H. •("Red") Arthur, James E. Long, F. T. Reberg and J. J. Zromkowski gave testimony, which was in general agreement with that given by their supervisors, Richard Lanahan, assistant superintendent and Scott V. Elliott, superintendent of the mills with which we are here concerned. All five of the complainants who testified -were members of the Association. Neither Delbert ("Doc"), Conquest nor Robert Sykora gave testimony. Their cases were covered in the testimony of .Lanahan and Elliott and of other complainants. 87 Exceptions were Gielniak and Williams, whose posts were filled by zone foremen, and Pendleton, who was replaced by a returned veteran of equal rank. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Available data as to employment status of the supervisors is included in the following table : Rating First hired Made super- y vtsor Approximate number supervised Special strike assign- meat Arthur, A. J___ Group leader---- Aug. 10, 1943__ Approximate- 30______.____ ly 2 years. - Arthur, C. R__ Assistant yard 1925___________ 1939___________ 6 to 8________ Coke plant gas tender. foreman. Conquest------ Yard turn fore_ _ Patrol duty. man Long__________ Assistant yard Oct. 15,1936-- 1941___________ ______________ Coke plant gas tender. foreman. Reberg________ Yard turn fore- April 8,1928 --- 1931___________ 150__________ Patrol duty. man. Sykora________ Assistant yard _ plant gas tender foreman. Zromkowski88 Yardforeman__ Apr1929_ October 1938_ 26anda"big o 1boiler. crew". - It appears, and the undersigned finds, that the supervisors of production work- ers in these mills numbered approximately 32. Each of them was questioned individually by Elliott, as he testified, on approximately January 11, 1946, "In the case of a steel strike would you be willing to stay in the plant to protect the company property and do any job that might be assigned to you." Each of the men listed above assented to this inquiry. Late Saturday, January 19, the supervisors were instructed to be in the mill by noon Sunday. About 8 were excused from strike duty mainly for sickness, either of the supervisor excused or of members of his family. Three South Yard foremen were excused as a unit. First instructions were that foremen were to do general patrol duty on their regular turns. Later 4 were assigned the duties at the coke plant set forth above. The turns were 12 hours long and the men found the unaccustomed duties both disagreeable and arduous. Long incurred blistered feet while working on the top of a coke oven. Reberg contracted a severe cold which, after he had left the, plant, developed into a case of double pneumonia necessitating a consider- able period of hospital treatment. All the men were dissatisfied with the arrange- ments for eating and sleeping. They were given cots and 2 blankets but had no mattresses. After working one turn they decided as a group on the evening of Monday, January 21, to leave the mill and go home. Sykora was working on the night shift from 7 p. in. to 7 a. in. When leaving for his shift, Sykora told C. R. Arthur, as Arthur testified, "Red, I think the gang is going home. If we do, don't you 'leave me out here alone. I am going too." Arthur notified Sykora of the group's intention about 8 p. in. saying, "The gang has -decided to go home." Shortly thereafter Sykora abandoned his employment and came to the mill. Elliott had been notified of the group's intentions and came to the mill office. He then interviewed the 6 supervisors under his direction individually and warned each of them, "As soon as you go out that door you are quitting your job, as far as I am concerned and you are off the payroll." The statements of the complainants on leaving are included here for the light they throw on their motives in leaving their assignments., Elliott' testified that Zromkowski gave him as a reason "that he was afraid for his wife and family, that he was the 61 Erroneously reported as Zromski in various instances in the transcript of testimony. •CARNEGIE-ILLINOIS STEEL CORPORATION 897 only supervisor living in the town of New Chicago and he worried ' for his wife and children out there." Conquest and Reberg as the table above shows had not been assigned to special strike work . They had done patrol or fire watch duty in their regular area. Elliott pointed this out to them and stated that in his opinion it was foolish for them to leave under these conditions . Each, as Elliott testified , gave no explana- tion but insisted on going home. Reberg's testimony is not widely at variance. However, he testified that he told Elliott that he had a bad cold and was physi- cally unfit to remain in the plant . Reberg further testified that in response to an accusation by Elliott that he was responsible for the group 's leaving, he dis- claimed acting as a leader . Reberg testified that he reminded Elliott that mem- bers of the group were "all intelligent men. They knew their own minds." C. R. Arthur, as Elliott testified , stated that he "didn't want to get his head cracked in" and "didn't want to have any trouble " Arthur's own testimony is of somewhat similar import . It is recorded as follows : Well, Scott, that is a hell of a job over there . I don't want to walk down the street here and expect to be stuck in the back with a knife some time or another and I don't want to be called a scab the rest of my life, and I am going home.70 Elliott testified as to Long that he gave no reason for leaving but "simply had his mind made up he was going home." Long's testimony is definitely stated and conflicts with Elliott's version. It is recorded as follows : I walked in there and [Elliott ] said, "Do you know what you are doing, Long?" I says to him, "Mr. Elliott, I have burned my feet. I would like to go to the hospital," and he says, "You are fired." That is all that was said. After, considering the demeanor of those witnesses in the light of the entire record the undersigned accepts Long's version of this incident. Elliott testified that he took Sykora to task for leaving his post , during his night turn on duty. It was Elliott 's further unassailed and credited testimony that Sykora endeavored to excuse himself on the ground that the other yard fore- men were going home and he did not wish to stay alone. A. J. Arthur decided to accompany the group. He announced his intention to his immediate superior, Ray, and had an interview with him between 9 and 9:30 p. in. Ray's credited version of this interview reads in part : He [Arthur] said, well, he was worrying about his family and at the time that he told me that he would stay in he thought that everyone-I took it to mean all supervisors-were going to stay in the plant. - He said he had thought the matter over and that he hated to do it, but he felt like that the only thing for him to do was to go home. I told him that I had 6° Zromkowski's testimony is in substantial agreement . It reads : So far as being loyal to you and 44 and 36 and doing my regular work, I am a hundred percent, but doing rank and file work is out. . . . I also told him I was worried about my family living out in the country, my wife and three small children, with no phone at home and I was going home. 70 It was Arthur's testimony that at his interview before Jenks and others he said : I don't believe in going out there and scabbing on somebody else's job and living-I just couldn't see it living under them conditions. I just couldn't see it. 898 DECISIONS OF NATIONAL' LABOR -RELATIONS *BOARD always considered him a good supervisor and that I hated to see him take that step, because I didn't know what it would mean, what stand the management would take, but I definitely told him that if he did walk off of his assigned job that his pay would stop immediately' and that his future status as a, supervisor would probably be in jeopardy." Each of the seven men received the form suspension letter, was accorded an interview before Superintendent Jenks and other officials and was sent the form discharge letter. At the time of the hearing A. l'. Arthur had been rehired on August 7; 1946, as clean-up laborer. He later became a "hooker." C. R. Arthur and Zromkowski were hired as inspectors on June 25 and June 20, 1946, respec- tively. All six of the production supervisors' positions had been terminated in the postwar reorganization. None of them had been replaced at the time of ' the hearing. A. J. Arthur had been replaced by the promotion of a senior clerk on the mill staff. Upon the foregoing statement of facts, and after consideration of the full record, the undersigned concludes and finds that the seven supervisors in this group are shown to have left their employment concertedly because of dissatis- faction with its conditions. On leaving they entered the status of strikers. As such they were entitled to reinstatement when they abandoned ' the strike. This was true on February 18, 1946 . The Respondent's refusal to so reinstate them at that date and thereafter was clearly. an unfair labor practice under the pro- visions of Section 8 (3) of the Act; the same finding applies to their discharge on March 18, 1946. 6. Central Mills Repair Crew Jesse E. Clements, Hugh G. Mansfield, Stuart L. McDoniel and James P_ Muldoon appeared as witnesses. Park G. Oldham did not give testimony. Each of these supervisors was a member of the Association. Assistant Superintendent O. A. Clarke and his Acting Assistant Superintendent J. L. Ferguson also testified.' The basic facts about the employment records of the men are recorded below. Rating First hired Made super- visory Approximate number supervised Special strike assign- went Clements-_---_ Foreman -------- 1918-------- --_ May 1, 1942--- 6 to 100 ------ Coke plant Mansfield----_ Assistant gen- 1924 ----------- 1941 ----------- 10 to 15 ------ No. 2 power house. eral foreman McDoniel_--__ Lubricating en- June 18, 1936-- Jan. 29, 1945--- 15 pipefit - No. 1 coke plant. Muldoon ------ gineer. Foreman -------- Winter 1934 --- Jan. 28,1945 --- ters 50 to 200 ----- Not assigned. Oldham------- General fore - ---------------- ---------------- -------------- No. 8 boiler house. man. This was a closely integrated group. General Foreman Oldham had Mansfield as- his' assistant, and Turn Foremen 'Clements, Muldoon and Charlie Storts as well as Foreman McDoniel we're under Mansfield : 'Storts did not join the others but remained in the plant during the strike. McDoniel and Muldoon were first employed in•the Sheet and Tin plant and were transferred to Gary Steel Works; good super- ''-'n Arthur's account agrees that Ray told him; "I always considered you a visor," and "I don't know just what will happen , just' what stand the management will take on your walking out of the mill like this." rs The titles stated are those held at the time of the strike . When they testified Clarke had been ,,promoted.to superintendent and Ferguson was assistant-superintendent. i' CARNEGIE-ILLINOIS STEEL CORPORATION ' 899 McDoniel about the time of his promotion 'to supervisory status,and Muldoon in 1936. Mansfield, Clements and Muldoon had been members of the Union of production workers while in a nonsupervisory status and retained the point of view of staunch unionists. Clements had been a grievance committeeman. He testified that he stated his position vigorously to Clarke when promoted to super- visory rank. Testimony pertinent here is recorded as follows : When I went on as supervisor, I told the man who appointed me, [Clarke] that I wanted it definitely understood that any time he requested' me, or anyone else, to do rank and file work that I would consider my job as ter- minated. I said, "We might as well understand that before I go on the job." I said, you know the position I came from so we might as', well have no misunderstanding, because if you ever expect that you might as well get somebody else for your foreman." - As set forth above all of these supervisors were members of the Association. Clements was chairman of the executive board and a member of the policy committee set up for the Steelworkers strike. Those who testified stated that they understood its strike policy. They were twice interrogated before-the'strike as to their attitude regarding strike duty. They were for the most part non- committal. Clements testified that he told General Foreman ^A. E. Pratt when interviewed "right after the first of the year" : Well you might just as well go,back and tell him [Clarke] this, that my position has not changed any since I took this job, and I told him at that time I wouldn't do rank and file work, that I would not be a scab for, him or anybody else. My, position hasn't changed any. I will come out and perform my duties, if that is what they, want, as a foreman., If they don't I will stay home. Clements gave further testimony regarding an interview with Clarke the date of which he fixed as January 11, 1946: I said, "I am willing to work during any emergency in my capacity as foreman." But I said, "Now, if they think they are going to get me here in the plant to be a strike breaker or do rank and file work, you might just as well forget it now even if it means my. job." , Clarke's testimony in substance corroborates Clements at this point.- This group reported to the plant on Sunday, January 20, on direction of Oldham: They were. given, assignments, except Muldoon. These they promptly refused. Pertinent. testimony by Mansfield reads: I told" him ' (Ferguson') that I refused to be a 'strike breaker because of the stories I had read in the newspapers. . . . Under those circumstances, I could not take that job because in 'the eyes of the 106 men I would be a strike' breaker.T - ' ' ' , , I ' Again referring to a later period in the day, Mansfield testified : , Mr. Ferguson said : "That is not the reason; I know you are listening and taking' ordersi from, the ,Foreman's Association of America." ' I told him; 73 Clarke denied this testimony, but after consideration of the full record and the de- meanor of these witnesses the undersigned accepts it. It is noted 'that although Clarke denied various testimony of these supervisors, their statements are in general agreement with testimony by Ferguson. •f7S.Ferguson7tGs,ti&ed that, Mansfieldistated; "that he,could•not stay. . ; , „because of the attitude his men would take toward him if he did." 900, DECISIONS OF NATIONAL ; LABOR RELATIONS BOARD "I did not, although ,I was a member of that organization ." He said, "Man agement didn't have no right to belong to that organization ." I told him I didn't think. I was management. He said I was, I was part of manage- ment, and if I did belong to the [Association ], if management would take orders from them, then who was there left to operate the steel plant. Under cross-examination-Mansfield gave the following testimony : Q. You didn 't think then on January 21-that you were actually fulfilling the requirements of your position of assistant general foreman in charge of maintenance? A. I sure did. But I think the corporation didn't think so. But I did. My job was assistant general foreman of the Central Mills maintenance department, not being a working man in No. 2 power house, which is,a different department altogether. McDoniel gave testimony of similar import, reading : I was assigned by.Mr . Ferguson to the No. 1 coke plant.. .. . It was, to be rank and file work and I told Mr. Ferguson that I could not consider it. Under cross-examination McDoniel testified that he decided when the Association defined its policy on December 17, 1945, ."that I would follow the policy of our union." I made that clear to Mi . Ferguson that if it was rank and file work I did ,not intend to do it, because that was our policy, but if they brought the union men in to work then I would have worked right along with- the union men in a, supervisory capacity, , if they put me in -such a capacity, but I could not take over another man's job. Muldoon testified as follows : When he [Ferguson] asked me my position, I told him that I would do anything at all as far as my position was concerned. I would work in that plant twenty-four hours if necessary ; in my own capacity as long as they were willing to send the rank and file men in to do the work . . . but I didn't intend to stay there and sleep in there. I said [to Ferguson] "If I am going to be assigned to the coke plant,"-and he said, "You possibly will be"-I won't take, it. I will leave now rather than cause embarrass i ment later on." As both Muldoon and Ferguson testified Muldoon was thereafter sent to the slab mill office with Storts. This was to keep them apart from Clements and Mansfield whom Ferguson characterized by saying, "They are just a little too radical." Under cross-examination Muldoon testified : I made up my mind that I refused to do any work, such as in the category as a scab or strike-breaker, work in the coke plant or any other place. While Clements did not immediately state his attitude being hesitant to do so since, .as he` testified , he had previously had a heated conversation with Fer- guson, he did not accept his assignment and left with the group. Ferguson's- testimony was that Clements said, "that he had always been a good union man and.he was not going to scab on the Union." Ferguson testified that he had a conference with each of the men regarding, their refusal to accept assignments . Oldham,'he stated, "had very , little to say, ' CARNEGIE-ILLINOIS STEEL CORPORATION 901 he expressed his opinion that he did not wish to stay in the plant." Oldham gave-as a reason, "that he would not scab on the union." About 10 p. in., these supervisors who had been instructed to report for duty at 11 called Ferguson and announced their intention to leave the plant. He endeavored to dissuade them and warned them that if they refused to take up their assigned duties their pay would stop. McDoniel asked if this meant that he was fired ? Ferguson replied as McDoniel's testimony reads : No, that it did not mean that I was fired, that I would just wait until I would be notified. The group left the plant between 11 and 12 p. in., January 20. None made any effort to return and none had been rehired before the close of the hearing in this proceeding. In the cases' of Mansfield and McDoniel their positions had been eliminated in reorganization of the supervisory forces. In consequence they were not replaced. In the case of Clements, Muldoon, and Oldham the job-content of their positions was changed. In each case the remaining duties were assumed by a supervisory employee whose former position had been eliminated. It is clear that the five members of this group refused their assignments and left the plant inprotest against Respondent's requirement that they do rank-and- file work. By so doing they become economic strikers. Respondent by refusing them reinstatement on February 18, 1946, and thereafter and by discharging them on March 18, 1946, discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment and discouraged membership in the Association. 7. West Mills John Binder, John F. Sprusanskp, and John Zulka•'b gave testimony as Board witnesses. Each was a member of the Association. Data as to their employment is presented below. Rating First hired Made super- Approximate number Special strike assign- wsory supervised ment Binder -------- Maintenance May 15, 1945-- 1923 - ---------- 10 to 12------ foreman. Sprusansky---- -----do----------- 1925----------- 1938----------- 33----------- Zulka-- ------- ----- do----------- 1912 ----------- 1924 ----------- 15 to 17 ------ Patrol duty. George T. Tree, who, as assistant to Division Superintendent Quinlan, was in charge of west mill maintenance, and his general foreman, Herman F. Hoff- meister, testified as witnesses for the Respondent. There also is passing reference to these supervisors in the testimony of Division Superintendent Quinlan. Treat- ment of the group presents little difficulty since the testimony is pleasantly free from conflicts. Tree interviewed each of his supervisors about January 8 or 9, 1948, relative to their willingness to remain in the plant and accept assign- ments if the rank and file employees did not furnish the labor needed. Binder told Tree that he could not remain in the plant since his wife suffered with asthma and he was responsible for her care at night. Sprusansky and Zulka at this time agreed to Tree's proposition. However, Sprusansky contracted a severe cold because of exposure to cold and wet on January 12, 1946, while draining the mills 75 Zulka's name was carried on Respondent's records as Zula. It so appears on the formal papers in the proceeding and in the transcript of testimony. 902 DECISIONS -OF NATIO,NAL, LABOR; RELATIONS BOARD in preparation for the strike set-for January 14. He reported sick and went home with the approval of Superintendent Tree on that date.R° Further evidence that management was cognizant of'his sickness and approved of his absence is pre- sented in testimony by Hoffmeister that he gave Sprusansky's sister his pay check on the evening of Wednesday, January 17, 1946. Binder and Zulka,-reported at the plant as instructed on January'20, 1946. Sprusansky was reached by telephone and stated-that he was still unwell but would come in the following morning. On Monday he-was stopped by the pickets and did not thereafter report for duty. Binder worked until 3 p. m., 'the regular end of his shift and then returned home. He was absent during-the remainder of the strike period. Zulka accepted an assignment to patrol'the four gas engine houses,,from 12 midnight Sunday until noon Monday. About the middle of this shift Zulka became ill from breathing gas fumes. He remained on-duty until noon Monday when he asked Hoffmeister to send hint to the plant hospital. Hoffmeister did so and he secured emergency treatment. The plant doctor advised him to return to his office and "keep away from-the. gas.-" Zulka insisted' rather on going-home. He prevailed on the' driver, who had'instructions to 'remain with him, to take him to the Broadway entrance of the plant. He was passed through the picket line and placed on a bus. He had out-patient treatment as Respondent's patient in a Gary hospital. After 2 weeks Zulka felt fit for duty and attempted to enter the plant. He was stopped by pickets and performed no further strike duty. ,All three of these supervisors were suspended. Each had a hearing before Jenks and other officials. As a result, it-was determined to discharge, Sprusansky and to reinstate Binder and Zulka. The reinstatements were effective as`of March 20, 1946. They carried no back pay. Zulka gave the following testimony re- garding his reinstatement : When I come to the office Mr. Tree talked to me.' He said, "Zulka, you know there was some misunderstanding between you and the management." "Well," I says, "I don't know." Then, he said, "Is it all right for you to work?" I said, "Yes." He said, "Can you go on the same job like you was doing?" I said, "Yes, sir." Then he said, "No pay, no back pay." I told him it was all right. At the time of the hearing Sprusansky's position had not been filled since- his duties had been absorbed by putting additional work'oii other supervisors. Under the circumstances stated above it is clear that these supervisors were in the status of strikers during the period of the steel strike. In its letter of suspen- sion the Respondent refers to the conduct of supervisors in leaving their position and assigned duties. It was on that basis that Sprusansky was discharged, and Binder and Zulka had an unpaid period before their reinstatement on March.20, •1946. The undersigned concludes and finds that the discharge and refusal to reinstate Sprusansky and-the refusal to reinstate Binder and Zulka from February 18, 1946, to March 20, 1946, were discriminatory and violative,of Section 8 (3), of the Act. `k 8. Maintenance Department - The 12 supervisors listed in this group are all from the machine shop except 2: ,Martin Danecki was a molder foreman in the foundry and John C. Hanzall ali assistant foreman in the pipe shop. Four rigger foremen might logically be in- eluded here but are given separate treatment immediately below since they acted 76 Sprusansky testified that Tree,,said, "You go on home aud ,stay home until you are well enough to come back. , i CARNEGIE-ILLINOIS STEEL CORPORATION 903 as a closely integrated group. The foundry and the pattern shop had been under the supervision of the superindendent of maintenance shops, Robert L. Williams, before-the strike but later were. transferred to a separate department under Superintendent William Riddle. These officials and Leon Killigrew, general foreman of the machine shop gave testimony as Respondent's witnesses. Of the complainants : John Bartal, Hugh G. Brabazon, John H. Charlesworth,'George W. Copley, Eric F. Erickson, and John A. Perunko appeared as Board witnesses. All were members of the Association, .Charles Albrecht, Willy Buhman, W. W. Camp. Denecki, Hanzal, and Felix Rodriguez did not testify. The following table carries data as to these supervisors' employment with the Respondent. Rating First hired Made super- visory Approximate number supervised Special strike assign- ment Albrecht Foreman -------- --------------- 1942 ----------- Mbr-________ ------ Bartal_________ Assistant fore- 1922___________ ________________ 50 to 60______ Coke plant. i Brabazon-_____ ___--do---------- 1928___________ 1941___________ ______________ No 4 boiler house Buhman ------ -----do---------- ---------------- ---------------- -------------- Camp--------- -----do---------- ---------------- ---------------- -------------- Charlesworth ---do---------- 1917----------- 1926----------- ------------- Do. - Copley-------- - -----do---------- 1927---------- 1936----------- 20 to 25 ------ No. 2 and 3 blowing engine house. Danecki Molderforeman- ---------------- ---------------- -------------- _______ Eiickson------ Assistant fore- April 1922_____ 1939___________ 80 to 100_____ No 4 boiler house man Hanzal-------- Perunke--_____ ---- do------ Labor foreman_ _ ---- _ --- 1933___-___ -------------- 70___________ Not assigned. Rodriguez ____ Assistant fore- ________________ 1942 ----------- ____________-- man. It was Williams' credited testimony that he personally interviewed the 26 supervisors in the machine and pipe shop during the week of January 8, 1946. Finding that he would be unable to conduct such interviews with each of his approximately 110 supervisors he then delegated this duty to the general fore- men of the other shops. Williams testified that he discussed the plans for the impending strike with his general foreman in a "routine meeting" early in Janu- ary 1946. In his individual interviews beginning January 8, Williams, after ex- plaining that negotiations were going on with the Steelworkers, asked "if the worse came to worse . . . could I depend -upon [the supervisor] to help with the necessary maintenance work if an emergency should occur and [he] would be needed" Williams testified that Brabazon. at this, time said "• he didn't know, he would think it over." In the following week Williams again checked with the same supervisors to see if their expressed positions had changed. At this time, as Williams testified, Brabazon replied, "he didn't know, that the union [Asso- ciation] would tell him what to do." Williams' testimony contained no reference to refusals to serve by other supervisors during these interviews. His testi- mony and that of supervisors appearing as witnesses agreed in stating that he told them service during the strike would be entirely voluntary" Some of the supervisors, however, when asked, "At any time that you were supervisor did you make any written or oral pledge to the respondent's manage- ment to the effect that you would live in the mill twenty-four hours a day as long as any strike would last ?" gave answers in the negative. While they gener- 77 Brabazon testified that he told Williams he,would not be able to stay in the plant, since he ,was, under I treatment for stomach ulcers and would not be able to maintain his diet as ordered by his doctor if he ate at the plant's cafeteria. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ally admitted 78 having answered Williams' inquiry affirmatively they explained that they did not regard their promise as covering the broad ground expressed in the generalized question quoted. Erickson's succinct statement is in point here. His testimony reads : I was asked if I would stay in the shop during the emergency and the emergency to me, at the time was until the rank and file had got things in order and got going and I said I would. The supervisors were summoned to the plant on Sunday, January 20, 104G Williams met them, beginning about 2: 15 p. in., in 3 groups of 30 or more each. He testified that he then said : I informed them, as I -always informed the foremen of anything that came up which was beneficial to them, I informed them that negotiations had broken down between the company and the union, and that I had been called from home right after dinner, and that they were preparing to oper- ate the plant on an emergency basis, because there was no one else to operate the plant in order to maintain the equipment, to furnish the utilities, why it was up to us, the supervisors. In the first of these meetings Brabazon asked Williams whether staying in the plant was on a voluntary basis. Williams testified, as to his reply : My statement was that their staying in was voluntary, and I could not make them stay, I could not make 110 people stay if they did not want to. Brabazon then asked further, with reference to a statement by Williams that their pay would be stopped if they left the plant, "Did that mean that a man was fired if he left the plant " Williams indicated that it did not saying, "I didn't say that." Strike assignments were made by the general foremen " About 5 p. m. Bra- bazon, Charlesworth, and Erickson notified Killigrew that they would not accept any assignment to do rank-and-file work, and that they intended to leave the plant : 80 Erickson's refusal of his assignment made to Killigrew was couched in jocular language 81 As Killigrew testified, both Brabazon and Charlesworth definitely said that they "would not accept any assignment outside the shop." Killigrew thereupon sent them to Williams. As their testimony and that of Williams agrees in stating Williams endeavored to dissuade them. Division Superintendent A. F. Giese together with his assistant, Eddy, was present and suggested that the men take 30 minutes to think the matter over. When they returned and persisted in their position, it was Williams' testimony that he told 18 The record contains no direct reference to Danecki, who did not testify, in this connec- tion. At the time he was under Williams' general supervision, but supervisors in the foundry were not interviewed by Williams Riddle; general foreman, at the time did not testify regarding any interview with Danecki before January 20, 1946. 7e Two supervisors were excused for reasons not stated on the record. Williams "thought" two more were later excused. 80 Charlesworth's testimony in point here reads : That was about 4:30 and I told him [Killigrew] that I didn't intend to do rank and file work in another department. So he said I would have to go up and see Mr. Williams. 11 It was Killigrew's credited testimony that when given an assignment Erickson said : I thank , you for assigning me to No. 4 boiler house. It is a nice place to work although-financially I am not able 'at this time„I will have to'refuse the assignment. CARNEGIE-ILLINOIS STEEL CORPORATION 905 them, "Your pay stops right now, so far, as I am concerned you are through... Williams prevented these supervisors from returning to the plant and instructed them to leave immediately. They left as a group about 6 p. m. Copley also refused his assignment. Killigrew's credited testimony regarding their interview is recorded as follows : Copley said he was very much concerned about the attitude Of the people that he would be meeting, that is, people who were working at the location, he was somewhat concerned about his safety, and he didn't know how he would get along, and he wanted to know if he must make his decision right then, and I told him he had time to think it over and he left the office. Killigrew later sent Copley to Williams. On arriving at Williams' office he was told that he was making a mistake and to take 20 minutes for further considera- tion. On returning,to the office Copley found there, Giese, Eddy, and the three supervisors discussed above. Giese asked Copley what he intended to do and Copley replied that he was going home. Giese stated that if everybody acted similarly the hospital and households of Gary would be without lights and water. Copley replied that his conscience told him the right thing to do was go home. Giese then dismissed Copley saying, "If we ever need you we will send for you." As Copley left Williams followed and warned him that his pay would stop as of that date. Copley left the plant about 6 p. m. Sunday. Albrecht, Bartal, and Rodriguez left the plant as a group on Monday afternoon, January 21. Bartal, the only one of the three to appear as a witness, testified that on the preceding day about 7 or 8 p. m. he went to Williams accompanied by Buhman, Perunko, and Rodriguez and they told Williams, "that we wouldn't stay, that we wanted to go home." He advised them that they were acting too hurriedly and to take further time "to think it over." They agreed to remain for 24 hoilrs longer. Next day about 5 p. m. Bartal returned to Williams and, as Bartal -testified, "told him I didn't want to stay in the mill any longer. I wanted to be with my wife and family, and I was sick from not being able to get any food and no sleep." Williams' credited testimony is that Albrecht and Rodriguez were in the office that afternoon with Bartal. It was Williams' testi- mony that he was particularly concerned since all three of these supervisors had been elevated to supervisory rank on his recommendations. Williams stated that Rodriguez, on being pressed for a reason for leaving, said that his brother- in-law,, identified as Supervisor Theodore Gielniak; 2 had called him on the tele- phone and "told him that he had better get the hell out of the mill by six o'clock." This testimony by Williams is corroborated by Bartal's testimony that he had heard on Monday while in the mill, of the Association's 6 o'clock deadline. He testified that he thought Perunko had told him. Perunko confirmed his testi- mony but stated that he had said it was a rumor in the plant. As a machinist and lathe hand in the Gary plant Bartal had'been a member of the Steelworkers. Despite Williams' protest that Albrecht, Bartal, and Rodriguez were making a bad mistake and that "if they left so far as [he] was concerned, they were through," they insisted on leaving. The only evidence as to Buhman's actions during the strike is contained in credited testimony by. Williams. Buhman came to Williams in the afternoon of January 21 and stated that he was "worried about what has been going on out- side." He stated that his wife had received a telephone call from a person 92 Gielniak was an assistant' foreman in the'Billet and Forty-Inch Blooming Mills. He is a complainant in this proceeding and his strike activity is discussed with that group. 906 DECISIONS OF NATIONAL - LABOR ' REL'ATIONS' BOARD whose identity ' he did' not know; but who was endeavoring to -persuade 'her to induce him to leave the plant. Buhman announced his intention to seek out Hillary Jones , president of Local 44 , "to find out what this is all about." On returning Buhman told Williams that he had decided to go home. Williams warned him that his pay would be stopped and he was through so far as Williams was concerned but Buhman left that afternoon. Findings as to Camp also rely on credited testimony by Williams . Camp had been noncommittal and well supplied with excuses when asked by Williams about his willingness to work during the strike . He did not respond to the call for Sunday, January 20, 1946. On Monday Camp telephoned to Williams stating that both he and his wife were ill and that he could not get through the picket line. Camp called again on the following day and was told by Williams that if Williams ever had need of his services he would be notified. Camp did not thereafter report for duty until the day after the strike ended when he returned to his work place 'and resumed his duties . On discovering his presence there Williams reminded him of the previous statement that he could be'notified'if needed and dismissed him. Perunko, as his testimony and that of Williams agreed in stating , came to Williams' office on Monday about 3 p. in. and stated that since his daughter was ill and might require an operation , he felt obliged to leave the plant. As Williams stated in his testimony he "was tolerant and sympathetic toward Mr. Perunko, feeling that his statements were correct and proper and that [Williams] might have acted the same under the same circumstances ." Although Perunko ex- pressed confidence that he would be able to pass the picket line and promised to return he did not do so during the continuance of the strike Hanzal did not appear as a witness nor were his actions during the strike referred to by other Board witnesses . Williams gave credited testimony to the effect that although Hanzal had readily assured him that he could ' be depended on in any eventualities he did not report on January 20, 1946. Efforts to reach him on that day were unavailing . His wife stated that he was out of town. Danecki did not testify . Williams and Riddle, superintendents of the Foundry, gave credited testimony that Danecki did not report to the plant on Sunday, January 20, 1946. Riddle called about 9: 30 that morning and was told by Danecki's wife that her husband was "feeling sick and nervous ." On the follow- ing day Riddle called again and Mrs. Danecki repeated the statement given earlier. Riddle stated ' at the time that Danecki's pay would probably be stopped. All of the 12 men in this group received suspension letters, were given a hear- ing before Jenks and' other Respondent's' officials and' all except Danecki were discharged on or about March 18, 1948. ' Albrecht, Bartal, Brabazon , Buhman, Camp, Charlesworth, Hanzal, and Perunko were not replaced because of a reduction from approximately 110 to 87 supervisors in the maintenance shops. Copley, Danecki , Erickson, and Rodriguez were replaced. At the hearing before Jenks, Danecki claimed that he was ill and unable to serve during the strike. A check up at'the plant hospital sustained Danecki and disclosed that he was still incapacitated. Danecki then applied for a pension on the grounds of disability. The United States Steel Pension Board approved his application and on Febru- ary 28, 1946, Danecki was placed on pension effective as of February 1, 1946. He received no pay for the period, January 20 to February 1, 1946. At the time of the hearing Buhman had been rehired as of July 17, 1946 as a maintenance man. It is clear from the data set forth above that these 21 supervisors , - except Danecki, whether they left individually or, in groups, were motivated by dissatis-. c ' ' CARNEGIE-ILLINOIS STEEL CORPORATION 907 faction with the assignments given them and by disinclination to do rank-and-file work during the strike. Of the 6 who gave testimony, only Bartal, Charlesworth, and Erickson had knowledge of the policy laid down by the Association. -Perun- ko heard of the Monday 6 p. in. deadline and communicated this "rumor" to Bartal. Jones had also reached Brabazon by telephone after hearing the radio announcement of the deadline on Monday. Buhman consulted Jones that day and was confirmed in his intention to leave the plant. He had previously learned of Association attempts to influence him to leave the plant through telephone messages to his wife. Rodriguez had been previously advised to leave by Giel- niak, his brother-in-law and fellow Association member. Gielniak, who was well informed of the Association policy had left the plant in' a group of 18 on Sunday evening. Under the circumstances the undersigned concludes and finds that the 11 supervisors, in effect, struck an January 20 and 21, 1946. He further finds that Respondent's failure to reinstate them on February 18, 1946; its dis- charge of them on March 18, 1946, and subsequent refusal to reinstate them, were discriminatory and violative of Section 8'(3) of the Act. ' Since Danecki,'at'his own request, was placed on disability pension effective February 1, 1946, it is found that the Respondent did not discriminate as to him. 9. Rigger Shop In January 1946 there were nine employees of supervisory rank below the rating of general foreman in the rigger shop. The general foreman at that time was Carl Schoonover. He appeared as a witness for the Respondent as did the superintendent of the maintenance shop, Williams. Of the four supervisors discharged Nelson H. Miller and Howard L. Spicer gave testimony at the hearing. Both were members of the Association. Stephen, Stajduhar and Louis Warner did not-testify.' Available data'as'to their' employment records are tabulated below : Rating First hued. - Made super- Approximate number Special strike assign- visory supervised ment Miller --------- Assistant fore- Feb. 14, 1926-- 1940 ----------- 5 to 9-------- None Spicer--------- man -----do---------- April 1936----- 1940----------- 4------------ Do.. Staldubar----- -----do'---------- ------------`---- --------------- -------------- Warner-------- -----do---------- --------------- ---------------- ----------=--- The record,shows -that the nine supervisors in this shop were interviewed by Schoonover on or -about' January 8, 1946. He testified regarding this interview as follows: r They were told there was a possibility of a strike, and if so, it would be necessary to operate certain facilities in order to supply the city with gas, light and water. They were told that they would not be asked to do any- thing else but those duties. They agreed to stay in the plant. Miller testified that Williams met a group of about 100 supervisors a week before January 14, 1946, and asked them if they would,stay in there and help to maintain the mill during the strike. Miller said as to the response : "We told them Yes." ' Spicer's testimony conflicted in some respect with the above statements. He said of the group meeting: "That didn't 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .close the deal, because we told him on the spur of the moment we wouldn't stay in." Further testimony by Spicer reads : Well, I told ... Carl Schoonover ... that I wouldn't stay in the mill; because my wife had just had a child and she was in no condition to be left alone ; with a new baby there was additional work around the house. He [Schoonover] got kind of embarrassed. He didn't say anything. He was so dead sure I would stay in. He didn't say anything. After considering this conflict of testimony in the light of the entire record and particularly later events and statements' by the witnesses directly involved the undersigned is persuaded and finds that Spicer refused to remain in the plant as he testified. These four complainants all responded to the call and came to the plant on Sunday, January 20. On that day they were occupied in distributing cots and bedding. In such distribution they did not fare well and sleeping accommoda- tions that night were bad. The quarters were cold, and they had few blankets and no mattresses. Getting meals also involved long waits in the cold, and food was scanty and ill prepared. On Monday the supervisors heard a radio broadcast which stated that the Association had notified the Respondent of a deadline at 6 p. in. that day for supervisors working in the plant. Spicer also heard through Supervisor Arnold M Andrews 93 that Hillary Jones was going home at 6 o'clock. As Spicer testified, "that made it authentic with us fellows." About 5 o'clock Miller, Spicer, Stajduhar, and Warner told Schoonover that they were going home s. Schoonover consulted with Williams and instructed the four supervisors to go to Williams' office. Spicer acted as spokesman. He testified as follows regarding the interview : We went over to see Bob [Williams], and we told Bob that we were going home, and he wanted to know why. I told him because the F. A. A. had called us out. He said that if we left the plant, that we couldn't get back in, because the pickets wouldn't let us in. We said we thought we might be able to get back. We were going out anyway, and we would be back the next morning. He said that we couldn't get back in, and he told us our pay would stop. We left them at about 5: 30 o'clock. Q. Had Mr. Williams said anything to you about being fired or discharged if you left the mill? - A. Well, Louis Warner, as we walked out, he asked Williams and I said, "Bob, we are going out and we will be back tomorrow." Bob said that is out of our hands whether you are quitting or being fired, it is out of our hands." Williams' testimony agrees in stating that Spicer gave the reason quoted above for leaving. Further, Williams testified that he questioned each supervisor in "Andrews was a complainant His case is discussed in the Transportation group 11 Schoonover's testimony reads : "I asked them why they were going home. They told me theyhad been called out by their union " sa Miller testified that the group told Schoonover "that we were going home, that we had heard on the radio that the FAA called us out and we were going out." He further testi- fied as to his reasons for leaving : Well, the first night in the wash house was enough to chase me out of there. I pretty hear froze to death. That first night was all I wanted., I had one blanket on a cot and I went to bed with all the clothes I could get in. . . . That wasn't fit for nobody. CARNEGIE-ILLINOIS STEEL CORPORATION 909 the, group of four and received confirmation of Spicer's statement. Williams testified that he told them that if they walked out they were through so far as he was concerned. Schoonover's testimony was, that on Williams' instructions, he told the four supervisors only that if they left their pay would be stopped. They left as a group about 6 p. in. Monday, January 21, 1946. None of them returned during the strike. Such of them as attempted to do so were stopped by the pickets. Each of these complainants received the suspension letter, had an interview with Jenks and other officials, and was discharged on March 19, 1946. Spicer gave unassailed and credited testimony regarding his final interview with Jenks, Gott, and Williams. Jenks called me down and asked me if I could give him any information, further information, that would help my cause. I told him my wife was sick and that we had a new baby in the house, but I went out for the F. A. A. so I guess that was all cancelled so far as the first part was concerned. He told me he thought I was a deserter that I didn't stick to my post. He said he had to stick to his, but I didn't. I told him I didn't think I was part of management. He told me I was because I didn't belong to the C. I. O. He said that he almost got fired because he hired fellows that wouldn't stick to him, and he said that his superiors said if he had lined up with the right type of men they wouldn't have deserted him during the steel strike. . At the time of the hearing none of these supervisors had been replaced. The number of permanent supervisors in the rigger shop had been reduced from nine to five. On occasions when some the five were absent or when the number of rigger gangs exceeded five, temporary appointments as supervisors were made from the rigger crews. Such temporary appointments carried an advance in pay of about 8, cents an hour. Spicer was working as a bridge worker with the Amer- ican Bridge Company. Miller, Stajduhar, and Warner had been rehired by the Respondent as riggers : Miller on July 19, Stajduhar on August 6, and Warner on July 22, 1946. Supervisors N. H. Miller, Spicer, Stajduhar, and Warner left their employment in Respondent's Gary plant in accordance with the Association's strike policy and the declaration of a 6 p. in. deadline on January 21, 1946. They acted concertedly in thus assuming the status of strikers. The Respondent's failure and refusal to reinstate them on February 18, 1946, and its action in discharging them on March 18, 1946, and subsequently refusing to reinstate them are, accordingly, discrim- inatory under Section 8 (3) of the Act. 10. Mason Department There are two types of supervisors in the Mason Department : labor foremen who supervise laborers who handle brick and do rough work around brick-laying operations and supervisors of bricklayers who are skilled craftsmen. As indi- cated in the tabular statement 11 of the 13 supervisors in this group were labor foremen. Simon Benjamin and Frank R. Ramos were assistant division fore- men. Benjamin, Joseph Duque, Frank Lazzaro, Guiseppe Lazzaro, Nick Lincich, Hugh McConnell, and Ramos gave testimony at the hearing as Board witnesses. All, except Benjamin were Association members. John C. Buncich, Candido 853396-50-vol. 84-61 910 DECISIONS' OF -NATIONAL LABOR' RELATIONS--BOARD Candiano, S.'Coveris, Hippolito Gonzales , Peter Jurichich, and P. Trbojevic did not appear as witnesses. Tlie following table gives data as to their employment : Rating Rating 'First hired Made super- Approximate number supervised Special strike assign- went Benjamin---- _ -Assistant diva! 1910--------- -- 1920----------- 24 to 50------ Coke plant. I lion foreman: - - , Buncich------- Labor foreman-- ---------------- --------------- -------------- Do Candiano ------ -----do----------- ---------------- ---------------- -------------- -Do Coverts- ------- -----do----------- ---------------- ---------------- -------------- Do Duque-------- ----- do----------- 1936----------- 1943 ----------- 15 to 20------ ' Do. Gonzales------ -----do----------- ---------------- ---------------- -------------- Do. Jurichich ----- -----do----------- ----------- ------ ---------------- -------------- Do. Lazzaro, F ---- -----do----------- 1916----------- 1917------ ---- 12---------- Do. Lazzaro, G ---- -----do---------- 1919----------- 1925 ----------- -------------- Do. Lmcich -------- -----do----------- -1899 ----------- ---------------- 12----------- Do. McConnell---_ -----do----------- 1925----------- 1927 ----------- 18 to 20------ Do Ramos------_ Assistant divi- 1925---- _------ October, No- 30 ----------- No. 5 blast furnace. sion foreman . v e m b e r, 1939. Trbolevic-----_ Labor foreman-- ---------------- ---------- ----- -------------- Coke plant. Nick Miller was also a supervisor in this department. He is reserved for separate treatment since his case involved features not pertinent to the group. H. J. Lankford,` superintendent of the department gave testimony as Respond- ent's witness. Lankford testified that he had twice called in his 61 supervisors, on January 4, 5, and 6, 1946, and oft January 14, 1946, interviewing them individu- ally, His testimony at this point reads : I called them in and told them it looked [like] a strike might be possible. I told them, of course, it was very necessary that they maintain some of that work that kept the utilities in the city of Gary running. I asked them if they would be willing to stay in the plant and help do any work that might be asked of them and maintained in certain parts of the plant and facilities necessary for gas and water in the city of Gary. I told them that it might be necessary that we would be expected to work any place in the plant. Right then I didn't know what department, but we would be expected to work any place in the plant. Every man stated that he could be depended on to stay there and would do anything that he would be asked to do. They were satisfied to do anything they could do. Most of the supervisors who testified gave a different version of these interviews.87 Each stated in response to generalized questions that he had never agreed to remain -in the plant- for 24 hours, a day nor to perform any work assigned by the Respondent. ' Specifically they.testified as quoted below : Benjamin : , - - , He [Lankford] says,'""Anybody want to stay, all right. If he don't we ain't' gbing' to make a'man stay that he don't want" In other words, he don't say we want to go home we lose the job: He don't say nothing. He say, "You fellows want to stay, all right; if you don't all right." ac Lankford's name was frequently reported as Langford He was a striking example of the Respondent's policy of pioniotion from within He had been, in turn, a bricklayer, foreman, general foreman, assistant superintendent, and superintendent 11 G Lazzaro did not testify regarding interviews before January 20 CARNEGIE-ILLINOIS STEEL CORPORATION 911 I told him I got wife and little kid going school there. I got to take care of house there, give heat, I got nobody home. . . I told, him, if you let me have a pass I come daytime and work and night time go home and take care of my building . . . He don't say nothing. He told me you want to stay, all right, if you don't, go home, so. Duque : He [Lankford to 4 foremen] say that we had to stay in and see that they keep the utilities for the city, you know, so in case the strike would goon the city would have some fuel and all that stuff, see, and he asked us to stay in there. Q. Did any of the men or did you say anything? A. No we didn't say anything we just listen to him talk. F. Lazzaro : The first meeting we had was Mr. Lankford. I think it was January 11 or 12th, they called me to the office. They told us if we were going to stay in the mill only for twenty four hours. Q Did you say anything at that time? A. No, we told him it was all right for twenty-four hours, so he said we could just go in the mill for twenty-four hours, we didn't have to do anything but stay in there in case of an emergency. He said then you can see how about coming into the mill, and then you fellows can go in and out and he also said in case there is a picket line outside on Broadway the fellows should go home, go back home and call up the office and tell them the reason why they could not go in and you would still receive five days pay a week. Lincich : He [Lankford] said we got to stay in and keep the coke oven and blast furnace. . . . So I told him right the first time I can't stay in because my family won't stand it I stay in, and he told me everybody got some kind of excuse. Well, that is all that was said. McConnell: Mr Lankford asked us [a group of 8 or 9 supervisors] if we would stay in the mill for twenty-four hours until the CIO men made appearance on the three different turns, just to make sure that they were coming into work. We agreed, or I agreed, rather, that that was all right, and I asked him if after that we would be allowed to go home and get a regular eight hour schedule, and he said, yes, that would be all right. McConnell further testified that the kind of work the supervisors would be expected to do "was never mentioned." Ramos (as to the first interview) : He [Lankford] was asking me, he was told me what this was planning to do, they was planning if the strike was coming, a man was willing to stay, will stay in the mill, and get six days' pay with overtime. The ones that didn't want to stay will only get forty hours pay. It was no obliga- tion for nobody to stay there if you are not willing to do so. I say, "Regardless of my year, five years hard work ; ten and twelve hours, six and seven days, and I not get vacation for such a long time, I 0 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was willing to stay out and take a rest, I was very tired." A year. before that I had an operation and I wasn't quite well yet. * * * * * * * He said he couldn't tell me, if I really should stay out or in. It was up to me what to do. Ramos further testified to a second interview of the same purport "about a week of a few days" later. On Sunday, January 20, the 61 supervisors all were notified of a meeting to be held by Lankford at 10 a. in. He was delayed and the meeting took place about 2 p. m 98 Testimony as to what then took place is in substantial agree- ment. Lankford's testimony pertinent here Is recorded as follows : I called all the foremen into the conference room and explained to them that it seemed that all negotiations were off and that we would be expected to stay in the mill. All but one of my foremen was there. Robert Solman didn't get there, but all the rest of them was there. They all agreed to stay except ten men90 Lankford stated that 10 supervisors refused. He named 9; McConnell, Ben- jamin, Gonzales, Candiano, Lincich, Duque, Trbojevic, Jurichich, and F. Lazzaro. Since he later gave full explanations for Buncich, Coveris and Ramos and made no mention of G. Lazzaro it is evident that the latter was inadvertently omitted from the list. This inference is further supported by the testimony of G. Lazzaro. The undersigned so finds 90 Lankford further testified that McConnell stated that his wife was to have an operation and his presence was therefore needed at home ; Gonzales said that "he was just out of the Army and he had been cooped up enough" ; [Coveris] 01 that he had just married a young wife and thought his place was at home and Benjamin that he owned a flat and must be at home to do janitor work. The testimony of McConnell and Benjamin confirmed these statements of Lankford. As to the other six supervisors Lankford testified that each said he would come to work only if he could go home and return daily. They re- fused to stay in the plant. Those among these supervisors who testified stated, and Lankford agreed, that they were sent to Assistant Superintendent Joe Rensel and questioned further as to their attitude. Each maintained his previously expressed position. They were warned that if they left the plant their pay would stop. About 3 p. in. Lankford under competent instructions sent 21 men, to the Coke plant, including the 10 listed above, and Coveris and Ramos, to receive work assignments. Of the 10 only Gonzales talked to the official in charge at the coke plant. Gonzales was told, "If any of you fellows don't intend to stay in the mill don't wait around here. You fellows go home." 92 Gonzales repeated this to the group. As Lankford testified, "They all left the coke plant and returned to the 88 Lankford testified that the meeting occurred about 12 :30 p m. 89 Ramos gave the following testimony as to the Sunday interview : This time he [Lankford] say we will have to stay in there. Who wants to stay, who don't want to stay, go on, there will be no pay It all reverse the time before He say it was going to be forty hours for the foremen to stay out and this time he say there be no pay for them guys who went out 00 Lankford excused but one supervisor, Victor Salmi, Sr., because his wife was alone in a remote house. ' Lankford is recorded as having used Candiano's name at this point The undersigned finds an obvious error here, since the details given indicate Coverls. oz This quotation is from F. Lazzaro's testimony. CARNEGIE-ILLINOIS STEEL CORPORATION ' ' 913 wash house and changed their clothes and went out of the plant." , The super- visors among the 10, who testified, gave lists which differed somewhat. It seems clear that the two Lazzaros, McConnell, Gonzales, Jurichich and Trbojevic left as a group.' None returned during the strike although some came to the plant and were turned back by the pickets. It was Lankford's undenied and credited testimony that Buncich came back from the coke plant and on returning stated that he would stay in the plant. He proposed to go home and get his clothes and return at once. Lankford offered to provide transportation but Buncich insisted on being on his own. As Lank- ford testified : "I haven't seen John [Buncich] since that day." Ramos, as his testimony and that of Lankford agrees in stating, worked at his assignment on Monday. That day his wife called twice and urged him to come home. Their child, an infant, was ill. About 9. 30 that night, Ramos, after notifying Lankford, and his General Foreman Reed, left the plant. Ramos testified without contradiction, and the undersigned finds, that at this time he had an interview with his General Foreman Reed. The testimony in point : He [Reed] told me, he said, "Did you know anybody, leaving the plant right now?" I said, "Yes, some guys leaving the plant." He said, "Well, all them guys, all the Foreman American Association, they are all going to get fired." So I said, "Well, that's too bad if you are going to fire me too, after I work over here twenty-one years," I said, "and you are going to act that way when I came back after the strike. . .." * * * * * * * He said, "You better think that over" and that was all. Ramos' testimony shows that he knew of the Association strike policy and he had heard at a meeting of the Association that "the boys say they will come out at 6 o'clock." It will be remembered that he was one of those admonished, by Jones on Monday regarding the Association's policy. Coveris worked Monday, Tuesday, Wednesday, and Thursday as assigned. On Thursday he came to Lankford and stated that he had decided to go home. When asked why, he stated that he thought that going home and staying with his wife would be better than staying in the plant. Coveris' case and that of Candiano are more fully explained in their interview after being suspended. Jenks testified, and his testimony is credited, that Coveris when interviewed before him had stated that on leaving the plant he had told an assistant super- intendent that he was leaving for home reasons. The superintendent offered to put him in touch with his family but he said only, "No, I have to go." Jenks' further testimony in point here reads : Now, in our interview he stated that he did not want to tell at that time all the reasons why he was leaving, but that he just had a new wife. He was a young fellow and they had only been married a short time and she came from out of town, and they were living at his home. To the best of my recollection, his father was very antagonistic to his bride and he was 93 Of the other, Duque testified that he left alone about 3: 30 Sunday P. M., January 20; Lincich that after refusing an assignment at the coke plant he worked overtime until 7 p. in. Sunday and went home alone immediately thereafter ; Benjamin that he finished a regular turn at 3: 30 Sunday and after changing his clothes went home ; Candiano did not testify and there is nothing in the record to indicate the time of his leaving the mill. It is clear that be did not work during the strike. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worried that his father would drive her out of the house and he would, lose his wife. We thought he was wrong in not telling us before he left more than he did and perhaps allowing us to help him make some arrangements and then come back in. We did believe that the circumstances that he described, had they been described before he left, he, would have been excused, but they 'were not. That is the best explanation I can remember on that case, Sir. As to Candiano, Jenks testified that he came to the interview with his naturalization papers which indicated that he had passed his 65th birthday when the strike began.9! Respondent verified this fact and retired him effective April 10, 1946. This was the date when Candiano's right to retirement was finally established rather than that on which he was entitled to retire. The established rule is that an employee is retired for age on his 65th birthday or on the first of the following month. Jenks, absolved Candiano of any intent t0 deceive, ex- plaining that his command of English was limited and that he might easily have been misunderstood by the clerk who recorded the data. All of the 13 supervisors in this group received the form suspension letter. All except Candiano, Coveris, Lincich, and Trobojevic were discharged after being interviewed by Jenks and other officials. As set forth above Candiano was placed on pension as of April 10, 1946. Coveris was reinstated to his position with back pay from February 18, 1946. Lincich was nearly 65 years of age. He was reinstated as of April 1, 1946, without back pay, and was retired on a pension on August 27, 1946.°` Trobojevic was,also near retirement age. He was reinstated without back pay as of April 1, 1946, and retired, at age 65, on, July 15, 1946, under the Respondent's pension plan. Of the nine supervisors terminated, Benjamin, Buncich, Gonzales, Jurichich, F. Lazzaro, and McConnell were replaced The positions held by them were not affected by the reorganization from the war set up. The posts of Duque, G. Lazzaro and Ramos were eliminated and no replacements were made.DO Four of this group were, rehired as laborers : Duque on July 16, 1946; F. Lazzaro and G Lazzaro on June 18 and June 24, 1946, respectively ; and McConnell on July 15, 1946.97 The undersigned finds that these 13 complainants left their employment, under circumstances set forth above, because they were dissatisfied with the conditions. In effect they went on strike intending to return when conditions returned to normal. Since Coveris was reinstated with back pay to February 18, 1946, the date that the plant reopened and Candiano had enjoyed some 2 years' employment after he had reached the age of retirement, the undersigned finds that neither had been discriminatorily treated. While Lincich and Trobojevic were reinstated as of April 1, 1946, they had been discriminatorily refused such reinstatements since February 18, 1946, and the undersigned finds are entitled to back pay for that period. As to the nine remaining complainants in the group it is found that the Respondent discriminatorily refused to reinstate them to their former posi- tions on February 18 and discriminatorily discharged them on March 18, 1946, and thereafter refused to reinstate them, thus violating the provisions of Section 8 (3) of the Act. 94 Gott testified that Candiano 's papers indicated he had passed the pension age of 65 some 2 years before the strike began 95 These findings are based as unassailed and credited testimony by Lankford. 95 Lankford testified that the number of employees in the department dropped from a war- time peak of 800 to 546 in January 1946. It was therefore necessary to reduce the num- ber of supervisors to be in proportion to the force 97 The dates are from the Respondent's records. Lincich's testimony is in substantial agreement with these findings. I CARNEGIE-ILLINOIS STEEL CORPORATION 915 11. Construction Department There were 4 complainants from this group. Sanford • E. Flood, a' foreman, Mike Kalember, an assistant foreman, and Mike Tatalovich, a labor foreman, did not testify. John Rau gave testimony. He was first hired in 1924, made super- visor in 1927 and supervised "around 20" employees. The department superin- tendent, D. F. Mowry, was incapacitated by illness at the time of the hearing. His assistant, Carl Johnson, testified as a witness called by the Respondent. Rau testified that Mowry asked him about January 12, 1946, if he would be willing to stay in the plant and advised him, "Bring some clothes along." At this time Rau agreed to do so. On January 20, 1946, 22 of the 25 supervisors were reached by telephone and instructed to come to the plant. They were told to bring clothing and other necessities and be prepared to remain in the plant. The 4 supervisors listed here were all reached and came to the plant. It was Rau's credited and uncontroverted testimony that the supervisors were told by Mowry, in the presence of Johnson, at a meeting•about 10 or 11 a. m. on that day that they would have to remain in the plant. Rau then'told Mowry,' as Rau's testimony reads : • I told bim I wouldn't stay in the plant. I wouldn't do no rank and file work. Mowry then assured Rau that lie would only be asked to serve in an emergency. .Flood was told about 4 p. m. Sunday by Mowry in the presence of Johnson 9a that' 'it would be necessary for him to stay in the plant and assist in maintaining the utilities for the city of Gary. Flood stated that there were "too many strings attached to it," and that he was going home. ' • He was warned that if he left the plant his pay would be stopped but persisted in his intention and left the plant immediately. Kalember came to Mowry' Sunday afternoon and asked to be excused from -duty during the strike unless he would be able to go back and forth-each day. He explained that he had a small farm, stocked with cows and chickens and that he cared for an aged brother at his home. Because of these responsibilities he felt that he would be unable to remain in the plant. Kalember went home about 2: 30 Sunday afternoon. Johnson testified that representatives of the Respond- ent investigated Kalember's home condition and confirmed his statements. Tatalovich remained in the plant Sunday night. He was oppressed with fears as to his personal safety there and concerned about his wife who lived•in an apartment house where several families of striking steelworkers were housed. About 7: 30 Monday morning Tatalovich told Mowry of his fears. He was warned that his pay would stop if he left the plant. Nevertheless he went home, about that time. Rau was not assigned any duties on Sunday. On Monday evening he was sent to the No. 4 boiler house and assigned to duty there as a water tender. He was .responsible for maintaining proper water level in 12 boilers, Rau, protested to Johnson that "he did not like to go and work on other people's work." 100 Johnson ' assured him that it was to be considered an emergency assignment and that ,supervisors had responsibilities to;protect the property of the plant, and to main- tain utilities for the families in Gary. Rau worked a 12-hour shift Monday night. This was familiar work to Rau who had performed similar duties, during the 99 Findings as to Flood , Kalember, and Tatalovich are based ,on unassailed and credited testimony by Johnson. 90 Johnson was unable to explain this expression by Flood . •, „ , 100 This quotation is from Johnson's testimony. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD depression years about 1932 and 1933. On Tuesday morning Rau went to Mowry and told him, as Rau's credited testimony is recorded : I told him I wouldn't do no rank and file work. I called it scab work. I said, "I would like to go home." Mowry advised that he lie down and get some sleep and thereafter think it over. Rau testified, "So I laid down and thought it over." Rau testified at another point ,in his testimony that his period of reflection was limited to a "couple of minutes." He went home about 11 a. m. Tuesday. About 2: 30 that afternoon he telephoned to Mowry and announced that he was at home and was not coming back10' It appears in the record that Rau was well informed of the Association's strike policy and that he had learned on Monday evening that Bennett and Emerson, who had assignments at the boiler houses, had left the plant 10' The four supervisors in this group received the suspension letter. Flood, Rau, ,and Tatalovich were discharged as of March 18, 1946, after an interview with Jenks and other Respondent officials.'03 Kalember, after his interview with Jenks, was offered a disability pension. He was much distressed and asked Mowry and Gott to visit his home and view the conditions there. After doing so it was 'decided, with the approval of Mowry and Johnson, to reinstate Kalember to his position. This was done as of March 25, 1946. Kalember was given back pay to February 18, 1946, the day that operations were resumed after the strike. Flood, Rau, and Tatalovich had not been replaced at the closing date of the hearing. Their duties had been absorbed by the remaining foremen in the Construction Department. Tatalovich had been rehired as a helper on vessels at the ore docks. On these facts the undersigned finds,that these four supervisors were in the status of strikers after leaving the Gary plant. However Kalember was not dis- criminatorily treated since he was, in effect, reinstated as of the date operations ,were resumed. - Flood, Rau, and Tatalovich were discriminatorily refused rein- statement to, their former positions on that date and thereafter. Thus the Re- spondent violated the provision of Section 8 (3) of the Act. 12. Production Planning Peter Lesko's rating was assistant production supervisor of Shipping and Order Services. Foster J. Turner was a schedule clerk. Question might be raised as to Turner's supervisory status. However, the Respondent admits that all complain- ants held such 'status.10' Neither Lesko nor Turner appeared as witnesses. Factual matter in the record regarding'them was'furnished by the superintendent of production planning, Andrew W. Krowell and Production Supervisor Robert F.'Nicholson who appeared as Respondent's witnesses. The following findings 101 Rau testified on direct examination that he had notified Mowry before leaving. Under ,cross-examination he chapged this detail as stated above. The undersigned finds this a simple mistake and ascribes no intention to misstate the facts to Rau. "'Both Bennett and Emerson are complainants. Their cases are discussed above in the Power and Fuel department group 1, 1 101 Johnson testified that Mowry signed the letters of suspension and discharge because these supervisors "failed to perform their duties during the strike emergency." He further testified that he had knowledge of this because be had discussed with Mowry the question of whether the supervisors should be suspended and later discharged. '"Respondent's , counsel stated at the hearing : I will say this, that they [the complainants] were all supervisors and they all had a supervisor's pass. That for many years they were considered, or the positions which they held were considered, by Gary Steel Works to be that of a supervisor , and they were so treated and so paid and were given privileges accordingly. CARNEGIE-ILLINOIS STEEL CORPORATION 917 are based on their uncontroverted and credited testimony and on certain exhibits, introduced by the Respondent containing data from its official records. The 41, supervisors in the department were interviewed individually by Krowell between January 9 and 20,1946. Krowell stated that he told each of them that "a strike may develop and it may be necessary for supervisors to protect the plant and protect the utilities in [Gary] " He further testified that with the exception of Turner, they all agreed in stating "That they all would fulfill their duties as a supervisor in such an event." Turner stated that he would work "if he had to but he didn't want to work." Turner was also interviewed by Nicholson with reference to strike duty. Nicholson testified as to Turner's answer, "He [Turner] told me that he was willing to stay in the plant, though he didn't particularly care to, but he would do so." Both Lesko and Turner were notified to report on Sunday,, January 20, 1946. Lesko promised to do so but did not. Turner reported and stated that he had necessary clothing for strike duty in his car. He voiced objection to Krowell against "being housed up for the duration of the strike ." He further stated that he would only work if he had to. When told, as Krowell testified, "that he didn't have to work unless he wanted to," Turner immediately left the plant. Both Lesko and Turner were suspended. When notified, about a week after the strike, to appear before Jenks for a hearing, Lesko declined to attend stating that "he didn't want any part of it." He had purchased a store in Gary. Under these circumstances he was carried on Respondent's records as having quit his employment. Turner appeared before the hearing committee and was later discharged as of March 18, 1946. Lesko's position was "modified" in the postwar reorganization and he had not been replaced at the time of the hearing . Turner's position was filled by promotion of another employee. Turner was rehired on July 18, 1946, as a laborer but "quit shortly thereafter." On the above findings of fact the undersigned concludes and finds that Lesko abandoned his employment prior to the close of the strike. It follows that he was not discriminated against by the Respondent.- Turner assumed the status of a striker on January 20, 1946. He was entitled to reinstatement on February 20, 1946. By refusing to reinstate him on that date and thereafter and by dis- criminatorily discharging him on March 18, 1946, the Respondent violated Section 8 (3) of the Act 106 13. Miscellaneous These supervisors are from different departments and their cases are unrelated. Their activities during the strike will be set forth seriatim. William H. Barrick, an assistant general foreman in the rail mill, did not appear as a witness . The only information available in the record regarding him is contained in the unassailed and credited testimony of Superintendent Ralph W. Dickson of the rail mill. Barrick's exceptionally high rating should be noted. He was questioned regarding his availability for strike duties on 2_ occasions by Dickson , as were all of the 42 supervisors in the rail mill . Dickson testified as to Barrick's reply, "He said he was willing to do anything he would be asked to do." When summoned on January 20, 1946, Barrick for the third time indicated that "he would stay and perform any work within the plant." He was on his regular assignment that day from 8 a. in. to noon supervising the unloading 106 The undersigned attached no significance to testimony by Milton Marquardt , super- visor of service for the Respondent, that 'Turner stated he had told representatives of the' Association he was not interested in joining them in protesting the discharges. 918' DECISIONS * OF NATIONAL- LABOR RELATIONS' BOARD of "slow cool cars." In the afternoon and until 11: 30 p. in. he assisted in pre- paring sleeping facilities for the supervisors within the mill. Just before mid- night he asked for a'private conversation with Dickson and announced that he would have to leave since he could not let his billet mill friends down. He and - Dickson had a lengthy interview in which Dickson attempted to dissuade him from leaving. At this time and later, at his termination interview before Jenks, Barrick stated that after he had done rank and file work in the billet mill during. a strike'some years previously his friends among the supervisors *had not included him in'plans for parties and picnics and that "he didn't want that to happen. again." The content of Barrick's job was changed in the reorganization of the super- visory hierarchy after the war. He has been replaced by promotion of another supervisor. Howard Campbell, an inspection foreman, was attached to the rail mill and Frank Lach, also an inspection foreman, to the plate mill. Neither appeared as a witness and information regarding them is derived from the testimony of Hugh Smyth, assistant chief engineer in charge of* inspectors and Orville W. Ingram, general inspection foreman. Smyth interviewed his 18 supervisors, in- cluding Campbell and Lach, individually, starting before January 14, 1946. None refused to serve, if needed during the strike. The supervisors were sum- moned to the plant on January 20 As Smyth testified, Campbell came to him about 9: 30 a. in. Monday and stated that he was uncertain whether he should remain: When pressed to give his reasons Campbell, said that after the strike he, would have to work with those who had gone out and they would make life miserable for him when he came back. Smyth instructed Campbell to think it- over. Campbell later told -Smyth "I will stick. If I do change my mind I will come over and talk to you." Smyth later' sought for him unsuccessfully with intenttto'give him a special strike assignment. On returning to the office Smyth was informed that Campbell had telephoned from outside the plant saying he did, not intend to return for the duration of the strike. Lach was found at his church, on January 20, 1946, by his immediate supervisor, General Foreman Ingram. He came to the plant and agreed to remain during- the strike. 'About 3 p. m: that day, however, he returned his meal books to Smyth and announced that he was not going to stay. When pressed for a reason Lach stated to Smyth that lie had previously "made arrangements" with his wife that he would not stay in the plant over 48 hours.'08 Having decided the strike would' last longer than that he had determined to leave at once. Both Campbell and Lach were suspended. When Campbell had an interview with Jenks and other officials it was discovered that at the time he left the plant both his wife and his child were seriously ill. After consideration of his case it was determined to offer Campbell reinstatement without back pay. This decision was communicated to Campbell "about the middle of March" 1946, who reported that he had accepted another job and would not return: Lach returned to the plant either February 18 or 19, 1946, after the strike settlement and told Ingram that "he had come out to work." Ingram disclaimed authority to put him to work and sent him home. Campbell had not been replaced because two night turns had been consolidated and his position eliminated. Lach's position had been filled by the promotion of another supervisor. _ _John C. Keneally, a fire inspector, gave testimony as a witness for the Board. William H. DeGan, superintendent of plant protection, appeared as Respond- 106 These findings are made on unassailed testimony by Smyth and -Ingram. • CARNEGIE-ILLINOIS STEEL CORPORATION 919 ent's witness as did Glenn W. Covalt, general assistant to Superintendent Jenks, who among other duties, supervised the plant protection department. He had signed Keneally's suspension and discharge letters and his testimony was confined to those matters. As fire inspector of the coke plant, a particularly hazardous department, Keneally held an important post. Briefly stated his duty was general inspection of all fire fighting equipment, to exercise general oversight there and order the correction and "clean up" of dangerous conditions. He in- structed the employees on fire hazards, on methods of fire prevention and on the use of fire equipment. Keneally had been first vice president of Local 44 for the year ending in December 1946. He habitually wore his union button in the plant and regularly attended Association meetings. He was well informed of the Association's strike policy. On January 20, 1946, Keneally was called to the plant at 6 p. m. DeGan told him that he would be on duty on 12-hour shifts from 6 a. in. to 6 p. in. begin- ning next morning, and that he was depending on Keneally to protect the fire equipment at the coke plant. DeGan suggested that he remain in the plant that night. To this Keneally demurred saying that he understood that supervisors would be passed by the pickets. He said, "I will be here at six o'clock in the morning," and that he "would take care of crossing the picket line." "' Keneally then went home. At 5 a. in -Monday he went to the plant entrance and was turned back by the pickets. He returned home and called up Fire Chief Joseph Lump, his immediate superior, and stated that he had been down to the picket line which "looked pretty heavy" to him and that he could not get through. As Keneally testified Lump said, "Well, don't worry, John, the strike will be all over in two or three days." Keneally made no further effort to return to the plant. He took part in strike activities and on one occasion sat on the platform with six or seven other supervisors, who were Association members, at a meet- ing held by the Steelworkers. Keneally received a suspension letter and later had an interview with a com- mittee composed of Jenks, Hjortsberg, and DeGan. Keneally then 'stated that he felt as a matter of principle he should not cross the C. I. O. picket line to enter the plant. He was discharged effective March 18, 1946. On July 17 following, he applied to Employment Manager Goetze for employment. Keneal- ly's unassailed and credited testimony was that Goetze said to him, "I can't even give you a laboring job, not until I get the word from higher-ups." On July 17, 1946, Keneally had a further conversation with Goetze by telephone in the course of which Goetze told him, "You come directly under Steve Jenks, you will have to get your job through [him]. You are holding a pretty big position in the Foreman's Association for me to tell you anything." 108 Keneally's job was not filled since it was necessary only under war conditions. His duties were absorbed by other supervisors. Reece A. Shepard, a screening station foreman at the coke plant did not testify. Information in the record regarding his strike record and discharge comes from uncontroverted and credited testimony by Neil McDonald, who, at the time of the Steelworkers strike, was general battery foreman in the coke plant and was then. Shepard's superior. McDonald interviewed Shepard on January 12, 1946, and secured his promise to remain in the plant during the strike. On January-20 Shepard was assigned to duty as a gas tender in the coke plant. This was work with which his supervisory duties had made him fully. 107 The quotations are from Keneally's testimony. 108 Keneally so testified. 920 DECISIONS OF, NATIONAL' LABOR RELATIONS BOARD familiar. Shepard accepted this assignment and worked three turns. On Janu= ary 24 he came to McDonald and stated that he had received a telephone call to' the effect that his child was sick. After some conversation McDonald estab- lished a telephone connection with Shepard's wife. She assured him that the child was not sick and nothing was wrong. Nevertheless Shepard insisted on leaving the plant saying, "I am going home anyway. I am fed up on every- thing.", Although he was warned that his pay would be stopped and that he could be given no assurance that his job would remain open, Shepard left the plant that evening and rendered no further service during the strike. . Shepard received the suspension and discharge letters. He had not been reemployed at the time of the hearing nor had his post been filled. In the reorganization the number of supervisors in his functions had been reduced from 10 to 8. Russell Stewart was a "hot top" foreman at the open hearth furnaces. He did not give testimony. The findings regarding him are drawn from uncon- troverted and credited testimony by Oscar Pearson, assistant superintendent of steel production. It was Pearson's testimony that his subordinate, D. A. Scull, general foreman in Stewart's unit reported to him that he had inter- viewed the seven foremen under him. Scull reported that all of them were will- ing to remain in the plant if needed and to accept such assignments as were required. On January 20, 1946, these seven foremen were summoned and re- ported around 9 a. in. At the time the group, which, included Stewart, asked that Pearson give them some description of the type of work to which they would be assigned. Pearson told them it had not yet been decided what they would•be asked to do but assured them they would not be assigned to any work they were not capable of handling. The group asked for time to consider. After about an hour and a half they returned. All expressed willingness to accept assignments except Stewart. He said "that he did not care to accept any work that was normally performed by production and maintenance workers, regard- less of the necessity for supplying electricity and gas to the City of Gary." Pearson's further testimony at this point is recorded as follows : I told Mr. Stewart that it was his responsibility to accept these assign- ments and perform this work, and the only facilities that were being op- orated were those absolutely necessary to supply the electricity and gas to the City of Gary, and that he would not be assigned to any job that he could not perform safely and properly. Stewart persisted in his stand and left the plant about 11 a. in. January 20, 1946. He performed no service during the strike. . Stewart received the suspension letter. Despite this fact he came to Pearson's office a day or two after the strike was over and requested that he be placed back on schedule. Pearson told him that since he had been suspended it was not possible to comply with his request. On February 27, Stewart had an inter- view before Jenks and subsequently he was discharged. He had not been reem- ployed at the date of the hearing. His post had been filled by reinstatement of a returned serviceman who had been a hot top foreman before his induction into the armed services. Both Richard Templin, a foreman in the 160-inch plate mill, and his general foreman, A. J. Waser, gave testimony. Templin had been a supervisor since 1940. He directed the work of about 90 employees. They agreed that Waser on January 11, 1946, interviewed the 23 supervisors under him, including Templin, regarding the possibility that the supervisors would be called on for strike duty. CARNEGIE-ILLINOIS STEEL CORPORATION -921 IVaser testified, "I asked them if they would stay in the plant for the duration of the strike to protect the plant and to do any work that was necessary to keep the utilities going in Gary." He stated that each of the supervisors gave the same answer, "Yes." Templin testified that when questioned by Waser he had stated that he did not know whether he would remain or not whereupon Waser gave him 30 minutes to make up his mind. Under these conditions, it was Temp- liir's testimony that he refused to answer the question. On January 20 the supervisors reported for duty as instructed. Waser excused all supervisors, 15 in number, below the rank of turn foreman. Foreman Babcock was also excused) because under the doctor's care.'"' Waser testified that Templin then volunteered to remain. However, Templin's testimony reads : I told him the only conditions I would stay under was that I would not do rank and file work, and I would only stay as long as I thought I could, put up with it. Those were the conditions I gave him. After consideration of the record and the demeanor of these witnesses in -the fight of Templin's later actions, the undersigned accepts Templin's testimony on this point. Templin remained in the plant on Sunday -night. He had no assignment beyond the normal duty of fire patrol falling to supervisors when the plant is down. He found the sleeping conditions unacceptable and the services in the restaurants very slow. On Monday about 8 a. m. he went to Waser and stated that he intended to go home. Waser reproached him for breaking his promise. Templin admitted in his testimony that he had agreed to stay 48 hours. Waser warned Templin that his pay would be stopped. On Templin's asking where he would stand when the strike was over, Waser re- plied, "When the strike is over your job is here the same way, except you don't get paid while the strike is in progress." Templin then left the plant about 9 a. M.119 Templin joined the Association in 1943. He was familiar with and approved the strike policy of that organization As set forth above he had been urged by Stuenkel on January 20, 1946, to follow the Association's strike policy. It is clear that his action in leaving the plant was, in part, influenced by its provisions. Templin made no effort to return. He was suspended and after an interview with Jenks and other officials was discharged effective March 18, 1946. His position was filled by the promotion of another supervisor. On the foregoing findings of fact the undersigned finds that Barrick, Lach, Keneally, Shepard, Stewart, and Templin were discriminatorily suspended, later discharged, and refused reinstatement by the Respondent on February 18, 1946, and thereafter. As economic strikers they were entitled to return to their jobs after the termination of the steel strike on that date It is noted that two super- visors in this group, Lach and Stewart made timely application for reinstate- ment and were refused. Campbell was discriminatorily suspended but he re- fused reinstatement about the middle of March 1946. Respondent's discrimina- tory treatment of Campbell is found to have been limited to the period from February 18, 1946, to Respondent's offer of reinstatement to him. 109 Templin testified that about half of the 16 excused were Association members 1° Waser stated that the interview occurred about 2 p. in The difference in hours has.. no material significance and the undersigned accepts Teuiphn's memory of this fact 922 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD C. The discriminatory demotion of Zone Foreman Rudolph -Mihelic Rudolph Mihelic was first hired by the Respondent on July 7, 1933. He left his employment in 1935 in order to attend school but returned in 1936. He had been of supervisor's rank for 8 to 10 years at the time of the strike when he was zone foreman in the 18-1 and 18-2 yards of the Central Mills. There he supervised the work of 55 men conditioning and rolling steel and distributing it to different parts of the plant. Mihelic joined the Association, and served that organization for 2 years as recording secretary. He was excused from duty - during the strike by Assistant Superintendent Harris on January 20, 1946. At the time Harris stated that he knew Mihelic was a member of the Association. During the strike Mihelic received his base pay for 40 hours weekly. After the strike settlement Mihelic returned to his duties as zone foreman and was paid the same salary as he had received prior thereto. There is no suggestion in the record nor in Respondent's brief, that Mihelic was not a capable and efficient zone foreman."' Mihelic signed a petition addressed to E. E. Moore as Superintendent of Indus- trial Relations for the Respondent. The petition, which was dated March 12, 1946, requested reconsideration of the action taken in suspending 20 yard fore- men of the Billet Mill at the Gary Plant. A copy of the petition in evidence has nearly 350 names attached. General Superintendent Jenks replied for the Re- spondent on March 31, 1946, expressing appreciation of the interest taken by the employees who had signed the petition but declaring that responsibility for'action taken could not "be shared with anyone not within the management group." Mihelic was the only supervisor who signed this petition. In preparing the petition and Jenks' reply for distribution through the interplant mail, to em- ployees interested, the Respondent omitted Mihelic's name from the list of signers. At a date in March not definitely fixed in the record Mihelic was called to a conference with A. D. Beers, superintendent of the Central Mills, T. J. Connors, superintendent of the billet and 40-inch mills and Mike Ervin, general foreman "' What then transpired is set forth in undisputed and credited testimony by Mihelic as follows : Mr. Beers was the first one that asked me, "Did you sign the petition?" I said I did, and Mr. Connors retaliated by saying, "You know, you had no business signing that petition," and I told him I worked with these men for quite a number of years and they are all friends of mine and I saw no harm in signing the petition. . . . Then Mr. Connors told me that didn't I know that there was an order issued by Mr. Wilkins, the former super- intendent of the Central Mills, to the effect that we were not supposed to let petitions go out throughout the yards like that, . . . Well, I think it was at . . . the close of that meeting that they told me, since I did this, signed this original petition there asking for these fore- men to get back, why, I would be demoted from my present job as 18-1 and 18-2 zone foreman to plate mill zone foreman, which pays much less money. Milielic testified that this -transfer involved loss of $16 per 2 weeks pay period in his salary check, and that such loss had continued to the date of his testi- mony, December 11, 1946. 111 The findings in this paragraph are based on undisputed and credited testimony by Mihelic. 112 Beers did not testify . Connors, his assistant , Charles H. Harris and Ervin were called as witnesses by the Respondent. None mentioned this interview in his testimony. CARNEGIE-ILLINOIS STEEL CORPORATION - , '923 The Respondent-did not controvert Mihelic's statements during the hearing and gave no other explanation for his demotion than that contained in his testimony. In its brief Respondent states, Mihelic was the only supervisory employee in the entire plant whose name appeared in the petition. By this act, Mihelic placed himself in the position of substituting his judgment for the well considered one of management. * * * In aligning himself with production and maintenance employees in opposition to the considered stand taken by management, lie demonstrated to his superiors that he lacked the capacity to properly understand and inter- pret directives of management which this new position of Turn Foreman demanded of him in greater degree and that he had a misconception as to his allegiance and responsibility. Consequently, Mihelic was informed that he would be returned to his position of Plate Mill Zone Foreman. In this state of the record the undersigned concludes and finds that Rudolph Mihelic was transferred, and demoted to a supervisory position carrying ,lower remuneration on or about March 22, 1946,1' because he acted in concert with other employees in signing a petition asking for reinstatement of suspended Asso- ciation members. By such action Respondent discriminated in regard to Mi- belic's hire and tenure of employment and the term and conditions of his employ- ment and discouraged membership in a labor organization. By this demotion the Respondent interfered with, restrained, and coerced, its employees in the exercise of rights guaranteed in Section 7 of the Act. D. The alleged discriminatory demotion of Assistant Foreman Nick Miller Nick Miller was hired by the Respondent in February 1925 as a bricklayer. He served as an assistant division foreman for about 4i/2 years prior to his termination on April 15, 1946. This service was interrupted by a period of 16 months in the Armed Services. On his return to the Gary plant on January 25, 1945, he was restored to his position. In May, Miller decided to attend school taking advantage of the provisions of the "G. I. Bill of Rights." He requested of his superintendent, Howard Y. Lankford, that he be allowed to work Saturdays and Sundays in order that he might have the week days free for his school work. Lankford demurred because of the difficulty of fitting such hours into the sched- ules of the Mason Department. However it was arranged that Miller transfer on June 9, 1945, to the Power and Fuel division and work on instrument, repairs. This work was in line with his school courses relating to the maintenance of airplane instruments. On his new assignment Miller became a • maintenance worker and lost his supervisory status. He testified that his pay was reduced by $3.10 per day., The provisions of the contract currently in force between the Steelworkers and the Respondent provide for a probationary period of 3 months. After completion of this period the employee receives "full continuous service credit from the date of hiring." As he approached the end of 'this probationary period Miller became concerned lest he lose his seniority as a supervisory employee and be rated as a production and maintenance worker. He applied to Gott for a transfer back to his posi- tion in the Mason Department, stating that he had not realized that his transfer might cause a break in his seniority there. Gott interceded with Lankford who agreed to the transfer, effective September 9, 1945, and arranged that Miller 11 This date was not exactly fixed in the record. The undersigned adopts the date stated In the complaint to which the Respondent has not objected, , I , 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work as assistant division foreman on Saturdays and Sundays while completing his school work. Later Miller was able to work Fridays in addition. As the strike became imminent Lankford interviewed Miller-on January 6 and 13, asking him what his attitude would be toward remaining in the plant and doing maintenance work in case the plan to have the Steelworkers pass employees for this service failed. Lankford's testimony as to Miller's answer, reads: - He assured me at that time that he would be there regardless of what happened. I depended on him being in that plant if we needed him. Miller's testimony is in substantial agreement. It reads: So I told him, "If it really comes down to a point where they have to shut the lights and power off, then I will stay in the plant to do my best to carry ,on with the lights in town. Miller worked his regular 3 days on January 11, 12 and 13, 1946. However, he reported himself sick on January 18 and did no work on that week end. He testified as to his illness, "I was weak, I had a cold and was run down." His foreman, Joe Rensel, telephoned Miller on January 20, 1946, and asked him, as Miller testified, if he could "come out to the plant prepared to stay, with the necessary clothing " Miller replied that he was not well enough to do so. -After recovering from his cold Miller on either January 23 or 24, called Lank- ford by telephone and inquired whether he could return to work. Lank- ford assured him that he would be glad to have him do so. However, Miller found that he could not pass the picket line. On February 25 Miller returned to his regular assignment. His school work has been completed at about the time the strike began. He was directed to report to Lankford who told him that it was necessary to reduce the number of super- visory employees because of a reduction in the number of production and main- tenance workers in the department. Lankford's unassailed and credited testi- mony was that the force had been reduced from a war-time peak of 800 wage earners to 546, and that Miller was the last man appointed as a supervisor. Lankford testified further that four other foremen were reduced to rank and file work at this time and that no supervisors had been appointed in the depart- ment since Miller's demotion with the exception of two appointments pending at the time of the hearing, made to fill vacancies created by retirements. Miller accepted demotion to wage earner status as a bricklayer "under pro- test." He worked thereafter from February 25 until April 15, when, as he testified, he "voluntarily quit" because "the work got too heavy for me." The Board contends that Miller's demotion on February 25, 1946, was dis- criminatory and motivated by his joining and assisting Chapter 44, engaging in concerted activities and refusing to engage in unneutral activities agaihst Local 1014 and Steelworkers. Miller was a member of Chapter 44 and had been elected a second vice president. The record contains no other evidence of activities by him in behalf of Chapter 44. The undersigned accepts Miller's testimony that his failure to report in the plant on January 20, 1946 was due to his illness and had no reference to the strike policy of Chapter 44, to the concerted activities of other supervisors, or to any disinclination on,his part to participate in unneutral activities against Local 1014 and the Steelworkers. This attitude is confirmed by his offer to,return made to Lankford on January 23 or 24. Since the Re- spondent did not suspend Miller, it is a justified inference that it did not regard him as a participant in the activities for which 96 supervisors were suspended. CARNEGIE-ILLINOIS STEEL CORPORATION 925 The. record justifies the Respondent in its contention that Miller's demotion 114 was based on shrinkage in the number of employees in the Mason Department. At least three other supervisors `5 discharged after the strike were not replaced. -Miller accepted his demotion and worked for 6 weeks thereafter. He requested and received a 2-weeks vacation and thereafter quit his employment without notice or explanation to the Respondent. In this state of the record the undersigned concludes and finds no merit in the Board's contention that Nick Miller, was discriminatorily demoted. It will accordingly be recommended that so much of the complaint as advances this allegation, be dismissed. E. Alleged discouragement of concerted activities and membership in Steel- workers and its Local 1014 The complaint alleges that Respondent's action in suspending 96 supervisors on February 18, 1946, and discharging 82 of them on March 18, 1946, had the effect of discouraging concerted activities and membership in Steelworkers and its Local 1014. In support of this contention the Board offered no evidence beyond that advanced to establish the fact of the discriminatory suspensions and dis- charges as set forth above. The undersigned notes that in the settlement agreement executed on February 15, 1946, the Steelworkers effectively disassociated itself from the Association. While the Steelworkers agreed not to "discriminate against any employees who opposed or did not participate in the strike," its representatives signed a settle- ment agreement which imposed a parallel obligation on the Respondent ap- plicable only to employees represented by the Steelworkers. Since the Steel- workers thus disassociated themselves from the Association at the end of the strike the undersigned cannot find that failure to recall Association members was a discouragement of Steelworkers' membership and activities. It will ac- cordingly be recommended that so much of the complaint as refers to this allega- tion be dismissed. F. Respondent's contentions 1. Respondent argues that an integrated steel plant presents problems both in operation and during the suspension of operations which differentiate such a plant from those in other industries and impose special obligations on super- visors as part of management. At the hearing and in its brief Respondent con- tended that those considerations make the decision of the United States Supreme Court in the Packard Motor Car Company case inapplicable in the instant pro- ceeding. In its presentation Respondent furnished several illustrations of the special difficulties encountered in shutting down a steel plant and maintaining it there- after, placing emphasis on the great potential financial losses involved. Super- intendent Lloyd F. Burress, who has had charge of the Gary coke plant for over 30 years, testified that operational temperatures rise to 1,900 degrees Fahrenheit. When the coke ovens go out of production they must be cooled as gradually as possible. The walls are built of silica brick which being sensitive to temperature changes may_crack and, under extreme conditions, collapse. Critical tempera- tures in the cooling process are between 1,000 and 400 degrees Fahrenheit. It is 114 Lankford testified, "We don't consider it a demotion. You have to have that flexibility, of course, to balance our force, and we do not consider it a demotion." 116 Duque, G. Lazzaro, and Ramos. 853396-50-vol 84-62 _926 DECISIONS'OF. NATIONAL LABOR RELATIONS, BOARD customary to maintain temperatures of 1,600 degrees at the center of the bat- Aeries ranging down to 1,200 to 1;100 degrees ^ at the outside flues. Should the coke ovens be suddenly abandoned and the brick walls so damaged .as to require rebuilding, it was General Superintendent Jenks' testimony that rebuilding a single battery of coke ovens would require a year and that to com- pletely rebuild the coke plant would involve an expenditure "in the neighborhood of thirty million dollars." Closing down the operation of blast furnaces presents similar difficulties. The .materials in process must be drawn off, the furnace charged with coke, and all orifices closely sealed. Under the most favorable conditions but 2 blast furnaces can be banked daily. Hence to close down 10 of the 12 blast furnaces at the Gary plant requires 5 days. In the extreme event that the blast furnaces are aban- doned in the midst of operations either the material in process will "freeze," i e., solidify by cooling, in the furnace involving a lengthy and difficult process of cutting out the solidified mass, or at the worst the furnace walls may be damaged or destroyed. Rebuilding the brick lining is a lengthy and expensive operation. Rebuilding a blast furnace costs 4 million dollars without auxiliary equipment 10 The open hearth furnaces must similarly be cooled down as gradually as possible from the intense heat involved in normal operations in order to avoid damage to the brick work. Since the strike occurred in the middle of winter, special precaution had to be .taken to provide heat and power enough to prevent cooling and freezing with resultant damage to water and steam pipes which could not readily be drained. Special difficulties resulted from the character of the steam pipes which had been installed with gasketed and bolted joints. If such equipment had been allowed to cool to winter temperatures the resulting stresses of contraction would have broken these joints and entailed heavy financial loss for repairs. It would also have caused delay in the resumption of operation when the strike terminated. Much of the estimated 4 or 5 miles of water conduits . .. in the plant were buried in the ground and could not be drained. Under severe weather conditions it was necessary to force the.water to circulate in ,order to avoid freezing. Serious hazards arise if gas mains are allowed to go down to zero pressure. Air entrainment at the various outlets in the pipes and mains results in an explosive .mixture of gas and air with danger to equipment and to the lives and limbs of personnel. In the Gary plant the extent and size of gas lines magnifies these dangers. There are "miles and miles" of coke oven gas pipes and mains from 4 to 30 inches in diameter. Each oven has numerous burners which ignite from the heat in surrounding brick work. Failure of pressure would result in 'prompt entrainment of air. There are also several miles of blast furnace gas lines. The principal main is 8 feet in diameter. From this main 54 gas engines, 42 blast furnace stoves and 11 boilers with fans, are supplied. Failure of pressure at any point here might easily entail air entrainment and disastrous consequences. Testimony regarding, hazards encountered in the production of coke and by- products was given by Superintendent Burress. Under normal conditions the 15 batteries comprising 1,055 ovens produce daily, as byproducts of coke produc- tion, approximately 90,000 gallons of tar, around 38,000 gallons of benzol products, and about 300,000 pounds of ammonia sulphate. The benzol products are refined ue Jenks so testified. 17 Superintendent :Brown termed this estimate a "guess." 'CARNEGIE-ILLINOIS STEEL CORPORATION 927 into benzol, toluol, xylol, heavy solvent naphtha, and naphthalene. Benzol, toluol, and xylol are highly inflammable hydrocarbons which .have the appearance of gasoline. All are highly volatile. Benzol has a boiling point of about 80.2 degrees centigrade ; toluol of 110 degrees, and xylol of about 135 degrees. • Vapors from these oils are toxic and very inflammable. If mixed with an appropriate amount of air and ignited they burn with explosive violence like gasoline. It is highly important that such products be handled with intelligent care and confined in the receptacles and tanks provided in order to avoid disastrous explo- sions. At the outbreak of the strike from 250,000 to 275,000 gallons of benzol and 50,000 gallons of toluol were in storage at the Gary plant. Respondent argues that their presence in the plant with resultant hazards imposed a duty on super- visors to remain at their posts during the strike. In a similar vein Edward A. Brown, superintendent of the Power and Fuel Division, testified as to the dangers in the interrelated and closely integrated Gary plant of failures in any facility "starting a very quick and vicious cycle of destruction." The facilities which Superintendent Brown had in mind are water, used in enormous quantities daily,1' steam and electric power ; blowing air ; blast furnace gas and coke oven gas. This matter can most effectively be presented by quotation from Brown's testimony. It reads as follows : For instance, if our water should fail either due to steam failure or electric power failure, starting at the water, if the water should fail our blast fur- naces would immediately be in deep distress due to the large amount of copper coolers that are dependent on that water. They immediately, in order to protect themselves, should the water fail, call for stoppage or reduc- tion of the wind that blows them in order to stop production and protect themselves. In fact, if that gas failed, nearly all, all in a great many cases, of our blowing engines themselves would be without water, and the same as in a regular automobile would stop in a matter of a very few minutes due to overheating. So that should the water pumpage fail, the blast fur- naces refuse their wind or the wind be reduced through the blowing engine failure, the gas production would stop or go down to almost nil in very short order. With that failure of gas and being dependent on it largely and in many cases fully, our steam production would immediately be in distress, and our steam pressure would go down, not only in the sense that it could not continue to produce steam for electric power and direct purposes, but in going down its own pumps that supplied it to make steam would fail due to the lowering of steam pressure, and there we would be in the condition of immense boiler plants with their furnaces heated to high temperatures failing to get water and all set for actual property destruction and personal injury, or worse. As the steam would fail in this circle of events, we would cease to make electric power on our turbo generators, and by the gas failure, or water failure, our electric gas power engines are already down, our electric power would immediately probably be wiped out due to the severe jolts the system would take and inability to unload it fast enough. Carrying that farther, our coke plant is supplied by power from the steel plant. Its pumping station would by immediately left powerless, and you would start into a train of events at the coke plant, which is a separate affair. l8 Brown gave the details as 240 million gallons of service water daily ; 80 to 120 million gallons for turbo generators, and 54 million gallons for the coke plant. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Now, this ,train, this circle of events are illustrated in the start as starting in the pumping station. It can start at any one of these places , electric power failure, failure in a blowing house, failure in electric power station, any of them , can start this same train of events. The vicious part of it is that this can happen in nearly no time at all. I have known on two occasions a plant running along normally that with just a single mis-move-in one case it was the failure of one employee; not a failure of an employee , but an employee that made a false move-one false move, [threw] a perfectly running plant into total shut-down. When 1 say total shut-down , I am not only talking about our own power and utility facilities, but I am talking about the steel plant as a whole. That plant has been shut down inside of ten minutes so that there was no water , electric power, gas, steam , blowing air or any of the utilities . It can happen that quick . In one instance I speak of in that ten minutes blast mains have been destroyed , dust catchers blown up and injury and fatality. I have seen the same thing happen twice. It is Respondent's argument that its supervisors , as a constituent part of man- agement, are obligated by their individual contracts to be always immediately available for duty whenever emergency conditions arise in the plant. As stated by Respondent's brief : - The duty imposed on supervisors at Gary Steel Works of being on call at all times for emergency turnout work arises from the individual employ- ment contracts between Respondent and its supervisors in which it is incor- porated by custom and usage. The record shows this practice of relying on supervisors in plant emergencies to have been of such long standing and relied upon so often at Gary Steel Works as to have become common knowl- edge to all of the complainants herein. Respondent has shown that supervisory employees at Gary Steel Works, and throughout all of the steel industry , have customarily performed rank and file work in periods of emergency caused by labor disputes , mechanical breakdowns or any other factor disturbing to normal production ' activities. Their duty to perform such work is inherent in a supervisor's contract of employment and is the essence in any consideration of a supervisor's respon- sibilities. This duty is not abridged by any provision of the [Act] or decisions arising thereunder. Each supervisor was free to terminate his employment with Respondent at any time he felt the hazards involved in his job were greater than he desired to endure, but , on the other hand, as long as any supervisor chose to remain an employee of Respondent , he owed a duty to the Respondent to fulfill faithfully and efficiently all assignments given to him. The undersigned finds it unnecessary to present in detail the evidence Respond- ent adduced in support of its contention that its supervisors had habitually made themselves available to protect and reestablish plant facilities under emergency conditions. It is accepted arguendo that this was the established practice. Nevertheless the undersigned finds no^merit in Respondent 's further contentions that its supervisors were obligated to continue to render such service at Respond- ent's orders and had no right collectively to dissent from such an order nor col- 'lectively to bargain as to the modification or termination of this alleged feature CARNEGIE-ILLINOIS STEEL CORPORATION 929 •of contracts individually assumed. Here lies the crux of the instant proceeding. Respondent's contention runs counter to (a) the basic philosophy governing all labor relations in this Republic and (b) to the underlying policy of reliance on collective bargaining which finds expression in the Act. (a) Our society carries its belief in the soundness of the inherent right of free men to strike to the extreme limit of tolerating strikes in basic industries. The background of this proceeding furnishes a pertinent illustration with its month long nation-wide stoppage in the 'basic steel industry. Similarly strikes are tolerated in the coal industry, in the transportation industries and in public utilities. Judicial notice may be taken of the recent strike stoppage in public utilities in the Pittsburgh area. Great hardship, business disturbance, and finan- cial loss resulted. Nevertheless the strikers incurred no penalty of discharge. for exercising their inherent rights as free men to quit their posts collectively when dissatisfied with the conditions of their employment. When strikes, in basic industries are closed the strikers return to their posts. Respondent acquiesced, in such a policy and shared in such a settlement after the steel strike. (b) The Act under which this proceeding was initiated declares that it is the policy of our government to protect the exercise "by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating the terms and conditions of their employ- ment or other mutual aid or protection." It states that the term "employee" "shall include any individual whose work has ceased as a consequence of, or in connection with any current labor dispute," and declares in Section 7, "Employees shall have the right to self-organization to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection." It is further provided in Section 13, "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike." I That the supervisor complainants here were entitled to benefit from these pro- visions was unequivocally and definitively stated by the United States Supreme Court in the Packard Motor Car Company 1B case handed down on March 10, 1947, while this proceeding was in the hearing stage. This decision aptly applies to and refutes the contentions from Respondent's brief quoted above. The Court said, in language especially apposite here : Even those who act for the employer in some matters, including the service of standing between management and manual labor, still have in- terests of their own as employees. Though the foreman is the faithful representative of the employer in maintaining a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, hours, seniority rights or working conditions. He does not lose his right to serve himself in these respects because he serves his master in others. And we see no basis in this Act whatever for hold- ing that foremen are forbidden the protection of the Act when they take collective action to protect their collective interests. The company's argument is really addressed to the undesirability of per- mitting foremen to organize. It wants selfless representatives of its interest. It fears that if foremen combine to bargain advantages for themselves, they will sometimes be governed by interests of their own or of their fellow I'D 67 S Ct. 789. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen, rather than by the company's interest. There is nothing new in this argument. It is rooted in the misconception that because the employer has the right to wholehearted loyalty in the performance of the contract of employment, the employee does not have the right to protect his inde-, pendent and adverse interest in the terms of the contract itself and the conditions of work. But the effect of the National Labor Relations Act is otherwise, and it is for Congress, not for us, to create exceptions or qualifications at odds with its plain terms. The'undersigned concludes and finds after consideration of the entire record that the acts of the complainants as set forth above, were manifestations of the freedom accorded free men to concertedly leave their employment; such action clearly fell within the concerted activities protected by the Act and the suspensions, discharges, refusal to reinstate and demotion by the Respondent, found discriminatory above, as plainly violate its provisions. Accordingly, it is found that. the Respondent refused to reinstate the supervisors listed in Appendix B on February 18, 1946, discharged them on March 18, 1946, and thereafter refused to reinstate them, suspended the supervisors listed in Ap- pendix C and refused to reinstate them during the periods respectively stated, because they acted concertedly in leaving their employment during the Steel- workers' strike. By these acts Respondent discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment, discouraged membership in a labor union and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Respondent further contends that under the Labor Management Relations Act of 1947, "it is now contrary to the national policy for the Board to treat supervisors as employees for the purpose of organizational activity. The Board, acting for the public, has no right and there is no remedy to order Respondent to take any action with respect to its supervisors." Decisions by the Board in Briggs Manufacturing Company 1.° and in Marshall and truce Company 1.1 are decisive of this contention. In the latter case, the Board said : But clearly Congress made no provision in the amendment for absolving employers of liability for unfair labor practices committed prior to such amendment. Indeed, the legislative history indicates a contrary intent, for Congress expressly considered and rejected a proposal which would have had the effect of prohibiting entry by the Board or enforcement by the courts of any order based on prior unfair labor practices unless the conduct involved continued to be an unfair labor practice under the amending statute. To this extent therefore, the new law does not operate retroactively. In view of the foregoing, we are of the opinion that the general savings statute must be held to preserve "all liabilities" arising under the National Labor Relations Act prior to amendment. Accordingly, the Board unani- mously concludes and finds as a matter of law that the enactment of the recent amendments does not impair our power to adjudicate the present case, or any other case which may have arisen prior to such amendments, and to issue an appropriate order therein. These rulings by the Board are sustained by action of the United States Supreme Court in Edward G. Budd Manufacturing Company... in denying certiorari on the decision of the Sixth Circuit Court of Appeals so far as it 1.0 75 N. L. R. B. 569, December 12, 1947. 1.1 75 N. L. R. B. 90. October 24, 1947. See also cases cited therein. s= 68 S. Ct. 262. December 15, 1947. CARNEGIE-ILLINOIS "STEEL' CORPORATION 931• relates torthe discharge of a supervisor: The Supreme Court's action was taken after consideration of the impact of the Labor Management, Relations Act of 1947, on the lower court's enforcement of the Board's decision which ordered reinstatement and back pay for a supervisor found to have been discriminatorily discharged. In the light of these precedents the undersigned finds no merit in this contention of the 'Respondent. 3. Finally, Respondent contends that action in United States District and Circuit Courts in other proceedings which found that certain-of the complainants, were discharged "'for cause" are binding on the Board. The'undersigned.flnds; this contention to be without merit. He does not feel it necessary to discuss the argument presented by-the Respondent in detail since the Act provides in See-, tion 10 (a) that the Board's power to prevent any person from engaging in any unfair labor practice is exclusive and "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement,- code, law or otherwise." IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations described in Section I, have a close, intimate, and' substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the- free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the undersigned will-recommend that it cease and desist therefrom and take cer- tain affirmative action found necessary to effectuate the policies of the Act. 'It has been found that the Respondent refused to reinstate the supervisors listed in Appendix h on the resumption of operations on February 18, 1946, discharged them on March 18, 1946, and thereafter refused to reinstate them and similarly refused to reinstate on February 18, 1946,128 the' supervisors listed in Appendix C until the dates stated for each supervisor, thus unlawfully discrim- inating in regard to their hire and tenure of'employment and the terms and con- ditions of their employment. It will accordingly be recommended that the Respondent be ordered to offer the supervisors listed in Appendix B immediate and full reinstatement to their former or a substantially equivalent position1"• without prejudice to their seniority or other rights and privileges. It' will be further recommended that the Respondent make whole the supervisors listed in Appendix B and Appendix C for any loss of pay they may have suffered by reason of Respondent's discriminatory action'•by payment to them of a sum of money equal - to the amount =they-normally would have earned as wages from March 18, 1946; to the date of reinstatement'in the case of supervisors listed in Appendix C and to the date of Respondent's offer of reinstatement to supervisors listed in Appendix B less their net earnings during said periods."' 123 Except that the date of such refusal for Albert A. Fink was February 7, 1946. 324 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence , then to a substantially equivalent position . See Matter of The Chase National Bank of the City of New York, ,San. Juan, Puerto Rico, Branch, 65 N L. R. B. 827. 125 Matter of Crossett•,Lumber' Co , 8 N. L. R -B.1440, 497-498. ' 932' DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has 'further found that the Respondent discriminatorily: demoted Rudolph Mihelic on or about March 22, 1946, and thereafter refused to reinstate •him in his former position because of his participation in concerted- activities, thereby unlawfully discriminating in regard to his hire and tenure of employment and the terms and conditions of his employment. It will accord- ingly be recommended that Respondent be required to offer him immediate and full reinstatement to the position from which he was demoted, or a substantially equivalent position, without prejudice to his seniority or other rights and priv ileges. It will be further. recommended that Respondent make Mihelic whole for any loss of pay he may have suffered because of Respondent's discriminatory action by payment to him of a sum of money equal to the amount his earnings. were diminished because of his demotion. Respondent's discharge of 82 complainants for their participation in concerted activity being an offense which strikes at the heart of the Act,16 the undersigned is convinced that such unfair labor practices are potentially related to the other unfair labor practices proscribed by the Act, and that danger of their commission in the future is to be anticipated from the Respondent's proven past offenses. In order therefore, to make effective the interdependent guarantees of Section 7 of the Act, the undersigned will recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of the employees which are protected by the Act. Upon the basis , of the foregoing findings, of fact, and upon the entire record in the case the undersigned makes the following: CONCLUSIONS OF LAW 1. Foreman's Association of America and its Chapter 44; United Steelworkers of America and its Locals Nos. 1014 and 2695 are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of the supervisors listed in Appendices B and C and by the demotion of Rudolph Mihelic 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 commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by the demotion of Nick Miller; nor by the suspension of supervisors Candido Candiano, S. Coveris, Martin Danecki, Mike Kalember, Peter Lesko, and William B. Sanders, Jr., nor, has it interfered with, restrained, or coerced United Steelworkers of America. RECOMMENDATIONS On the basis of the-foregoing findings of fact and conclusions of law, the under- signed recommends that the Respondent, Carnegie-Illinois Steel Corporation, (Gary Steel Works),.its officers, agents, successors, officials, and assigns, shall: 126 N. L. R. B. v. Entwistle Manufacturing Co., 120 F ( 2d) 532, 536 (C. C A. 4). See also. N. L. R B. v. Automotive Maintenance Machinery Co 116 F. (2d) 350, 353 (C. C. A. 7) ; May Department Stores Company v.,N. L. R. B., 66 Sup. Ct. 203, 213, 326,U. S 376; see N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 437. CARNEGIE-ILLINOIS STEEL CORPORATION 933 1. Cease and desist from : (a) Discouraging membership in Foreman's Association of America, or any other labor organization, by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join or assist Foreman's Association of America, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for'the-purpbse of collective bargaining or other mutual aid or protection as' guar- anteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to the supervisors listed in Appendix B reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other 'rights and privileges ; (b) Make whole those supervisors and those listed in Appendix- C for any loss ,of pay they may have suffered by reason 'of Respondent's discriminatory action against them ; ... (c) Restore Rudolph Mihelic to the position from which he was discriminatorily demoted or to a .substantially equivalent position without prejudice to his senior- ity or'other rights and privileges ; (d) Make Mihelic whole for any loss of pay resulting from Respondent's dis- criminatory action ; (e) Post at its Gary, Indiana, plant, copies of the notice attached hereto marked "Appendix D." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the Respondent's representative, shall be posted immediately by the Respondent upon receipt thereof,and main- tained by it for sixty (60) consecutive clays thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. , Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; - - (f) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the Respondent notifies the 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 insofar as it alleges that the Respondent discriminatorily demoted Nick Miller ; discriminatorily treated Candido Candiano,, S. Coveris, Martin Danecki, Mike Kalember, Peter Lesko and William,B. Sanders, Jr., and interfered with, restrained, or coerced the Steelworkers. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case 127 The undersigned finds it unnecessary to include qualifications of these recommenda- tions because of reorganization of the supervisory force on reconversion to peacetime conditions . Testimony by Gott, assistant to Jenks, is credited to the effect that surplus .,supervisors , while they may be assigned to rank and -file-work are . carried on the pay roll as "red circled positions" and suffer no decrease in remuneration. 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six 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 six copies of a brief in support thereof;' hereof ; and any party may, within the same period, file an orginal and six copies of a brief in support of the Intermediate Report. Imme- diately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy, thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.56, 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 service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- ,mended order herein contained shall , as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and .order, and all objections and exceptions thereto shall be deemed waived for all purposes. Dated March 15, 1948. CHARLES E. PERSONS, Trial Examiner. APPENDIX A Albrecht, Charles Andrews, Arnold M. Arthur, Arthur J. Arthur, Clarence R. Ban, Albert 'Banaski, Frank L. Barrick, Steven N. Barrick, William M. Bartal, John Benjamin, Simon Bennett, Maurice F. Binder, John Brabazon, Hugh G. Buhmann, Willy J. Buncich, John Byrne, Bernard J. Camp, William W. Campbell, Howard Candiano; Candido Ciochetti (Charles), John C. Charlesworth, John H. Clements, Jesse E. I Conquest, Delbert Coons, Marion Copley, George H. Coveris, S. Danecki; Martin Duque, Joseph Elwood, Frank R. Emerson, Elliott F. Ensweiler, Frank Erickson, Eric F. Fink, Albert A. Fisher, William ' Flood, Sanford E. Friedrich, John Fusick, John Gielniak, Theodore B. Girard, Leonard B., Gonzales, Hipolito Gorman, Charles'C.' Gregor, Stephen Guba, Mike, Jr. Hampton, Robert C. Hanzal, John C. 'Insogna, Joseph', Jones, Hillary E. Jurichich, Peter Kalember, Mike Kenealy, John C. Keserich, Daniel J. Keserich, John E. Keserich, Nicholas J. Lach, Frank ' CARNEGIE-ILLINOIS STEEL CORPORATION Lazzaro, Frank Lazzaro, Guiseppe Lesko, Peter Lincich, Nick Long, James E. Lowry, Milton McConnell, Hugh L. McDoniel, Stuart L. Majchrzak, John, S. Mansfield, Hugh G. Miller, Nelson H. Miller, Nick Muldoon, James P. Nawrocki , Benjamin Oldham, Park G. Pendleton , William Perunko, John A. Quarnstrom, Thomas F. Ramos, Frank R. Rau, John Reberg, Fred F. Rodriguez, Felix Albrecht, Charles Andrews, Arnold M. Arthur, Arthur J. Arthur, Clarence R. Ban, Albert Banaski, Frank L. Barrick, Steven N. Barrick, William M. Bartal, John Benjamin, Simon Bennett, Maurice F. Brabazon, Hugh G. Buhmann, Willy J. Buncich, John Byrne, Bernard J. Camp, William W. 'Ciochetti, (Charles) John C. Charlesworth, John H. Clements, Jesse E. Conquest, Delbert Coons, Marion Copley, George H. Duque, Joseph Elwood, Frank R. Emerson, Elliott F. Ensweiler, Frank Ryan, J. Sanders, William B., Jr. Shepard; Reece A. Smith, Lance Spicer, Howard L. Spirovich, Yosif Sprusansky, John F. Stajduhar, Steve Stewart, Russell Stuenkel, Leon H. Swigon, Philip Sword, J. Wallace Sykora, Robert Tatalovich, Mike Templin, Richard E. Trbojevic, Peter Turner, Foster J. Warner, Louis Williams, David Zromkoski, Joseph J.. Zulka (Zula), John S. APPENDIX B Erickson, Eric F. Fisher, William Flood, Sanford E. Friedrich, John Fusick, John Gielniak, Theodore B. Gonzales, Hipolito Gorman, Charles G. Gregor, Stephen Guba, Mike, Jr. Hampton, Robert C. Hanzal, John C. Insogna, Joseph Jones, Hillary E. Jurichich, Peter Kenealy, John C. Keserich, Daniel J. Keserich, John E. Keserich, Nicholas J. Lach, Frank Lazzaro, Frank Lazzaro, Guiseppe Long, James E. Lowry, Milton McConnell, Hugh L. M'cDoniel, Stuart L. 935 936 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Majchrzak , John S. Mansfield , Hugh G. Miller, Nelson H. Muldoon, James P. Nawrocki, Benjamin Oldham, Park G. Pendleton, William Perunko, John A. Quarnstrom , Thomas F. Ramos, Frank It. Rau, John Reberg, Fred. F. Rodriquez, Felix Shepard, Reece A. Smith, Lance Spicer, Howard L. Spirovich, Yosif Sprusansky, John F. Stajduhar, Steve Stewart, Russell Stuenkel, Leon H. Swigon, Philip Sword, J. Wallace Sykora, Robert Tatalovich, Mike Templin, Richard E. Turner, Foster J. Warner, Louis Williams, David Zromkoski , Joseph J. APPENDIX C Binder, John, Feb. 18, 1946 , to Mar. 20, 1946. Campbell, Howard, Feb. 18, 1946, to Mid-Mar. 1946. Fink, Albert A., Feb. 7, 1946, to Mar. 20, 1946. Lincich , Nick, Feb. 18, 1946, to Apr. 1, 1946. Ryan, J., Feb. 18, 1946, to Mar. 20, 1946. Trbojevic, Peter, Feb. 18, 1946,-to Apr. 1, 1946 . Zulka ( Zula ), John S., Feb . 18, 1946, to Mar. 20, 1946. APPENDIX D NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self-organization , to form labor organizations , to join or assist FoREMAN's AssocIATION OF AMERICA, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination. Albrecht; Charles Ban, Albert Andrews, Arnold M. Banaski, Frank L. Arthur, Arthur J. Barrick, Steven N. Arthur, Clarence R. Barrick, William M. CARNEGIE-ILLINOIS STEEL CORPORATION ' Bartal, John Benjamin, Simon Bennett, Maurice F. Brabazon , Hugh G. Buhmann, Willy J., Buncich, John Byrne, Bernard J. Camp, William W. Ciochetti , ( Charles ) John C. Charlesworth, John H. Clements, Jesse E. Conquest, Delbert Coons, Marion Copley, George-H. Duque, Joseph Elwood, Frank R. Emerson, Elliott F. Ensweiler, Frank Erickson , Eric F. Fisher, William Flood, Sanford E. Friedrich, John Fusick, John Gielniak , Theodore B. Gonzales , Hipolito Gorman, Charles G. Gregor, Stephen Guba, Mike, Jr. Hampton, Robert C. Hanzal, John C. Insogna, Joseph Jones, Hillary E. Jurichich, Peter Kenealy, John C. Keserich, Daniel J. Keserich , John E. Keserich , Nicholas J. a Lach, Frank Lazzaro, Frank Lazzaro, Guiseppe .Long, James E. Lowry, Milton McConnell, Hugh L. .McDoniel, Stuart L. Majchrzak, John S. -Mansfield, Hugh G. Miller, Nelson H. Muldoon, James P. Nawrocki, Benjamin Oldham, Park G. Pendleton, William Perunko, John A. Quarnstrom, Thomas F. Ramos, Frank R. Rau, John Reberg, Fred F. Rodriquez, Felix Shepard, Reece A. Smith, Lance Spicer, Howard L. Spirovich, Yosif Sprusansky, John F. Stajduhar, Steve Stewart, Russell Stuenkel, Leon H. Swigon, Philip Sword, J. Wallace Sykora, Robert Tatalovich, Mike Templin, Richard E. Turner, Foster J. Warner, Louis Williams, David Zromkoski, Joseph J. 937 WE WILL MAKE whole the employees previously reinstated named below for any loss of pay suffered as a result of the discrimination. Binder, John Ryan, J. Campbell, Howard Trbojevic, Peter Fink, Albert A. Zulka (Zula), John S. Lincich, Nick All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. CARNEGIE-ILLINOIS STEEL CORPORATION (GARY STEEL WORKS), Employer. By ------------------------------------'----- (Representative) (Title) Dated---------------------------- NOTE : Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. a