Granite City Steel Co.

In the Matter of GRANITE CITY STEEL COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT No. 9 and UNITED STEEL- WORKERS OF AMERICA , CIO, PARTY TO THE CONTRACT Case No. 14-C-1296.-Decided December 16, 1949 DECISION AND ORDER On April 21, 1949, Trial Examiner Peter F. Ward issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the United Steelworkers of America, CIO, herein called the CIO, filed exceptions to the Intermediate Report and supporting briefs. The several requests, made herein, for oral argument, are hereby de- nied as the record, including the exceptions and briefs, in our opinion adequately presents the issues and the positions of the parties. In view of our decision herein, we also hereby deny the Respondent's motion to reopen the record for the purpose of taking additional evidence. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs,'- and the entire record in the case, and, except to the extent consistent with the Decision and Order herein, hereby rejects the findings,' conclusions, and recom- mendations of the Trial Examiner, for the reasons noted below. The complaint alleges in substance that the Respondent (1) dis- criminated against IAM strikers by discharge and otherwise; (2) assisted the CIO by bargaining with it; and (3) refused to bargain with the IAM. 'Including briefs filed by the General Counsel and by the International Association of Machinists, herein called the IAM,'the charging union. 87 NLRB No. 122. 894 GRANITE CITY STEEL COMPANY 895 The Respondent, operating a fabricating steel plant, employs over 2,000 workers. Of these, about 200 are maintenance machinists who have been represented by the IAM for at least 10 years under separate contracts. The production workers have been and are now repre- sented by the CIO. In March 1946, the TAM called a strike of 'the machinists to enforce a demand for premium pay for Saturday and Sunday work as such, resulting in a complete shutdown of the plant. This strike was set- tled in August 1946, when the IAM and the Respondent signed a union-shop contract,' agreed separately on a work schedule,3 and submitted the demand for premium pay to arbitration' 2 The contract provided in part: 6. Adjustment of Grievances: Should any dispute arise over the interpretation or application of this agreement, there shall be no stoppage of work until the'procedure here outlined shall have been exhausted. * * * * * * * Step No. 4. If grievance is not settled by the aforesaid process, such grievance shall be submitted to a representative appointed by [the Union] and a representative ap- pointed by the Company. Such parties shall endeavor to settle amicably such griev- ance. If said parties fail to adjust such grievance, they shall then agree upon some method for the final disposition thereof. (Emphasis added.) The work schedule took the form, at least in part, of a chart, known as the ABC schedule, depicting a 3-week period in which an employee worked 15 days, including two Saturdays and one Sunday. The Respondent and the IAM disagree as to whether there was an oral agreement, supplementing the chart, 'according to which the chart did not apply to certain machinists who either were not required to work at all on Saturday or Sunday or on as many Saturdays or Sundays as those covered by the chart. The IAM contends that 'there was no such oral agreement. The Trial Examiner did not resolve this disagreement as to whether the ABC schedule constituted the entire agree- ment with respect to work schedules or whether the ABC schedule agreement was supple- mented by an oral agreement according to which certain machinists would work on a Monday through Friday schedule while still others were to work on a so-called Roll Grinder's schedule which required Saturday and Sunday work, but less than that required on the ABC schedule. The record discloses credible testimony by company representatives who participated in the contract negotiations and by JAM machinists who attended the JAM meeting at which the agreements reached were ratified that it was understood that not all machinists would work on the ABC schedule. The only witnesses who testified that all machinists were to work on the ABC schedule, and none other, were IAM officials, Ryan and Webber. Webber did not participate in the negotiation of the work schedule. Ryan was not present throughout all the negotiations concerning the work schedules, but he testified that while he was present, he heard the chairman of the IAM's shop committee state that his understanding was that the ABC schedule was to apply to everyone, and that no representative of the Respondent objected. While this is not specifically denier], Ryan was not present throughout the negotiations, and the record does not show at what stage of the negotiations the alleged statement of the IAM shop chairman was made. We do not credit the testimony of Ryan and Webber. In any event, from August 12, 1941;, the date of ratification of the contract, to March 24, 1947, when the strike hereinafter referred to began, all machinists did not work on the ABC schedule; rather, about 46 of them worked on one of the two other schedules without any complaint or protest from the IAM. Accordingly, we find that the A13C schedule was not intended to cover all ma- chinists, but was supplemented by the two other schedules mentioned above. 4 The three agreements, namely, the basic contract, the work schedule, and the arbitration agreement, were made on August.8 and ratified by the IAM membership on August 12, 1946. The arbitration agreement provided that the arbitration decision shall be "final and binding upon the parties" and "shall become part of the working agreement between the parties, and shall be effective until June 30, 1947" (the expiration date.of the basic contract). 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March 1947, the arbitrators made an award denying premium pay. About a week later, on March 17, the IAM notified the Respondent that, beginning a week hence, all machinists would work in accordance with the "agreed" work schedule, i. e., the chart, and none other. In reply, the Respondent stated that, pursuant to Step 4, Section 6 of the contract, it had designated a representative to adjust the matter. On the next day, March 21, IAM representatives met with the Respond- ent's representatives. The meeting ended without an agreement. At this meeting, which lasted about 2 hours, the IAM repeated its strike ultimatum. The Respondent's position was that it needed more time to consider the matter; the IAM was willing to postpone negotiations only if the Respondent placed all machinists on the work schedule represented by the chart, pending further negotiations, but this the Respondent was unwilling to do.-' There was no mention at this meet- ing of any other method for disposition of the grievance, and no arrangement for a further meeting was made. Thereafter, the IAM called a strike; 6 the Respondent discharged those strikers who failed to report for work by a given deadline and denied seniority status to a small group of strikers whom it thereafter rehired. The Trial Examiner rejected the Respondent's defense that it was justified in disciplining the strikers because the IAM had breached the basic contract in not exhausting the grievance procedure before resort- ing to strike action, and he concluded that the Respondent discrimi- nated against the strikers because of their participation in the strike. The Trial Examiner based his conclusion that the IAM had not breached the contract upon the following : (1) that the no-strike clause of Paragraph No. 6, set forth above, was inapplicable because the work schedule agreement was not part of the contract and there- fore the dispute concerning the work schedule did not "arise over the interpretation or application of this agreement," (2) that there was 5'There is uncontradicted testimony, which we credit, that compliance with the TAM's demand would have required extensive revision of existing work schedules and would have required the employment of 48 or 49 additional employees, entailing an additional labor cost of approximately $60,000 annually , and it would have resulted in more week -end work than before. That the TAM understood the Respondent' s position in this respect is re- flected by the fact that, in its strike ultimatum of March 17, the TAM stated that it was giving the Respondent 1 week's time in which to revise its work schedules and by un- denied testimony, which we credit, that, at an TAM membership meeting called to discuss the arbitrators' award, TAM officials explained that they were insisting that all machinists work on the ABC schedule because ". . . the Company could not operate without working the men like they [TAM officials] wanted to [namely, in accordance with the schedules agreed to in August 1946, but with premium pay ] . . . We have got them now with their back to the wall." B About 46 machinists failed to report 'for work on March 24. Two more machinists, Williams and Crocker, failed to report for work on April 21. Later the same day, the remaining approximately 150 machinists struck. GRANITE CITY STEEL COMPANY 897 no breach of the work schedule agreement itself because that agree- ment did not contemplate that the schedule would be effective for any time certain ; and (3) assuming that the work schedule was part of the contract (a) the IAM was under no obligation to "agree upon some method for the final disposition" of the grievance and (b) the IAM in fact exhausted the grievance procedure by the negotiations which occurred. The Trial Examiner found that the work-schedule agreement was not part of the basic contract, and that the work-schedule agreement did not contemplate that the schedule would be effective for any time certain for the following reasons : (1) there was "no evidence indi- cating that the parties intended that the work schedule ... was to become a part ..."; (2) it "is most unlikely that the Respondent would have agreed to make the work schedule a definite part of the contract since an [arbitration] decision [adverse to the Respondent] would have required" it "to pay on the average time and one-half for 1 day in every 5 worked by the men ;" and (3) the IAM members did not understand that, by voting approval of the [work] schedule, they thereby agreed that they would have to continue working until June 30, 1947 (the date of expiration of the contract) as the minutes of the meeting of the IAM employees then on strike disclosed that they voted "to return to work pending [the arbitration] decision." The Trial Examiner's reasons that it is unlikely that the Respondent would have Agreed to make the work schedule a part of the basic contract because an adverse arbitration decision would have imposed on it the burden of paying premium pay for Saturday and Sunday work overlooks that this was, in our opinion, a calculated risk which the Respondent assumed by its agreement to arbitrate. At the time the agreement was made in August 1946, the Respondent had on its hands a shut-down plant resulting from a strike which had run about 150 days; the IAM was opposed to Saturday or Sunday work and was insisting on premium pay as a means of inducing the Respondent to eliminate or reduce the amount of week-end work; however, the Respondent's plant operations required week-end work. Under these circumstances, the parties settled the strike by compromise, i. e., the ABC schedule represented the maximum amount of Saturday and Sunday work (less than that theretofore required) and the matter of premium pay would be decided by arbitration. The Trial Examiner's argument that the IAM members did not understand that they would have to adhere to the ABC schedule until the expiration of the contract, in view of the minutes of the IAM meeting, referred to above, disregards the fact that the arbitration 87735950-vol. 87-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement provided that the arbitration "decision shall become part of the working agreement between the parties, and shall be effective until June 30, 1947" and that the contents of the minutes was not communicated to the .Respondent and thus was not binding on it. Moreover, we read the minutes as meaning that the IAM members would return to work on the basis of the agreed work schedule, with premium pay for week-end work dependent upon the outcome of arbitration. While the record contains no direct evidence with respect to this issue, the following factors indicate that the parties intended to make the work-schedule agreement part of the basic contract : (1) they were both made at the same time as part of the same transaction;. (2) they deal with subject matters which are related; (3) the arbitration agreement provided that the arbitration decision shall be binding on the parties and effective until the end of the contract term; and (4) both parties treated the work-schedule agreement as part of the con- tract by handling the work-schedule-dispute as a grievance under the contract. In view of the foregoing, we conclude that the work-sched- ule agreement was part of the basic contract of August 8, 1946, and like the basic contract, was in full force and effect until June 30, 1947, and that the dispute concerning the work schedule did "arise over the interpretation or application of this agreement" within the mean- ing of the contract. We are thus confronted with the basic issue whether the IAM breached the contract by resorting to strike action without exhausting the grievance procedure of the contract, as the Respondent contends. As indicated above, the contract prohibited work stoppages in case of any dispute arising from interpretation or application of the con- tract until the grievance procedure of the contract shall have been exhausted. The contract further provided that, when a grievance reached Step 4, the parties should (a) "'endeavor to settle" such grievance by negotiation between union and employer representatives, failing which, they should then (b) "agree" upon some method of final disposition. The Respondent contends'that the IAM neither raised the work- schedule matter in good faith nor negotiated with respect to it in a good faith effort to settle it in the conference of March 21 with man- agement. The Respondent bases this contention on the following : The IAM well knew that the work-schedule agreement did not require all machinists to work on the ABC schedule; the IAM threatened to strike to compel the Respondent to pay premium pay notwithstanding the arbitration decision denying it; the one conference which took place plasted only about 2 hours; at the conference the IAM.in sub- . GRANITE CITY STEEL COMPANY 899 stance merely reiterated its strike ultimatum and refused to grant further time to the Respondent to settle the matter by further negotia- tion, although the IAM knew that the Respondent could not accede to the demand that all machinists work on the ABC schedule without seriously disrupting the Respondent's operations in the manner indi- cated above. Without regard to the IAM's motives, we are of the opinion that, under the circumstances disclosed by this record, the IAM did not "endeavor to settle" the work schedule dispute by negotiation between union and employer representatives within the meaning of the con- tract. There was only one meeting between union and employer rep- resentatives; that meeting lasted only about 2 hours; the Respondent requested additional time in which to consider the IAM's demand, a reasonable request under the circumstances ; the IAM, however, refused to grant such additional time unless the Respondent first capitulated to the IAM's demand in the manner stated above, an unreasonable condi- tion under the circumstances, and merely reiterated in substance its strike ultimatum. In view of the foregoing, we conclude that the IAM failed to comply with clause (a), above, and that it therefore breached the contract by striking without complying in this regard with the grievance procedure of the contract. In any event, we are also of the opinion that the IAM breached the contract by not complying with clause (b) of the grievance procedure referred to above. The Trial Examiner concluded that the IAM was under no legal obligation to "agree upon some method for the final disposition" of the grievance because, in law, an agreement to make an agreement in the future has no legal force, and that, in any event, the IAM had exhausted the grievance procedure of the contract in that, at the meeting of union and company representatives on March 21, they "were unable to settle the dispute and were unable to mutually agree on a method of settlement." The Trial Examiner's conclusion that clause (b) imposed no legal obligation upon the IAM to agree upon some method of settlement falls short of being a complete answer to the Respondent's position in this case. The Respondent does not contend that the final stage of Step 4 of the grievance procedure re- quired the parties to agree on any method of settlement. It contends that clause (b) required the IAM to endeavor in good faith to reach such an agreement. We agree with this interpretation of the contract. Effect should be given to every provision of an agreement if a reasonable meaning can be attributed thereto. The express terms of the contract establish .that the parties intended the IAM to be entitled to resort to strike action under certain circumstances, namely, if and when it exhausted 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the grievance procedure. If clause (b) be construed to require all agreement, the IAM would not have been entitled to strike under any circumstances, because grievances would always have had to be settled by a method of settlement agreed upon. We also believe that the con- struction of clause (b) urged upon us by the Respondent is a reason- able one. In addition to reflecting the intent of the parties to the contract, it is in harmony with the traditional scheme of collective bargaining which, while not requiring an agreement, obligates parties to try in good faith to reach one. Adopting this construction of clause (b), as we do, it is clear that the IAM did not comply with its terms. The Trial Examiner's finding that the parties were "unable" to agree on another method of settlement has no basis in fact, as there was no effort whatsoever made to reach agreement on any other method of adjustment-indeed, the matter was not even broached. However, the General Counsel contends that the IAM was excused from comply- ing with this condition precedent to the exercise of the right to strike, because the Respondent did not request arbitration or any other method of settlement. This argument overlooks the fact that it was the IAM, not the Respondent, that contracted not to strike without first exhaust- ing the grievance procedure, and it was the IAM, not the Respondent, that was seeking to take affirmative action. We therefore reject this contention. In view of the foregoing, we conclude that the IAM failed to coin- ply with clause (b), as well as clause (a), and that it therefore breached the contract by striking without complying in this addi- tional regard with the grievance procedure of the contract. We fur- ther conclude that the strikers' activity was not within the protection of the Act, because they breached clause (a) and clause (b) of the contract referred to above, or either of them, and that the Respond- ent's conduct in discharging the strikers was not violative of the Act. Included among the strikers were seven foremen. While the f ore- men were not covered by the contract because they were not in the same bargaining unit, they were IAM members. The record does not disclose on what schedules they worked, or how an adjustment of the work-schedule dispute would affect their interests. However, the seven foremen were among the group who struck on April 21; and, so far as appears, there was no dispute as between the foremen vis a vis the Respondent. Not only do the foregoing facts serve to rebut presumption, assuming that one may validly be invoked, that the any concerted activities of the seven foremen were for their own mutual aid and protection, but they fully convince us, and we find; that the foremen struck solely in the interest and aid of the rank-and-file ma- chinists who, we have found, were engaging in an unprotected, con- GRANITE CITY 'STEEL COMPANY 901 certed activity. Upon the foregoing facts, we find that such activity of the foremen 7 was not protected by the Act. Accordingly, we shall also dismiss the complaint as to them 8 After March 24, certain of the striking machinists who returned to their jobs shifted their affiliation to the CIO; in addition, the Re- spondent hired new machinists who joined the CIO, and transferred production workers who belonged to the CIO to jobs in the machinists' unit. Between March 26 and April 2, 1947, there were several meet- ings between the Respondent and the CIO with respect to matters relating to the March 24 strike.' Following April 2, no further meet- ings between the Respondent and the CIO were concerned with the machinists' unit until sometime after the April 21 strike. Sometime after April 21, the Respondent met with the CIO concerning the job tenure of CIO production employees who transferred to work in the machinists' unit. On May 29, 1947, when a majority of the employees in a reconstituted machinists' unit had designated the CIO as bar- gaining representative, the Respondent entered into a union-shop contract with the CIO covering the machinists as well as the produc- tion workers. Subsequently, when the IAM sought to negotiate a new contract on behalf of the machinists, the Respondent refused. to bargain with the IAM. The Trial Examiner found that from March 25 to June. 6, 1947, the Respondent unlawfully bargained with the CIO in negotiations which resulted in assurances (1) that returning strikers would be treated as permanent employees; (2) that transfer of employees from the production unit to the machinists' unit would be on a permanent basis; and (3) that, although full seniority would not be granted to late-returning strikers, the subject could be discussed later. Having found that the discharge of the strikers was invalid, the Trial Exam- iner concluded therefore that the IAM retained its majority status, and found that the Respondent's refusal to bargain with the IAM was unlawful. The Respondent contends that the discussions between March 24 and April 21 between the Respondent and the CIO, as set forth in the Intermediate Report, do not rise to the stature of collective bargaining but rather involved essentially a series of questions and answers, the CIO asking the questions, and the Respondent answering them. We find that the Respondent did not extend any recognition to the CIO ' we leave open the question of whether the protection of the Act is to be accorded to rank-and-file employees who stand in the position of the foremen in this case. 8 Member Murdock , who has signed this opinion because in agreement with it in all other respects, has filed a separate dissent on this point. B At this time the CIO had a closed-shop contract with the Respondent covering produc- tion employees, and negotiations were in progress for renewal of this contract. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the April 21 strike, but merely expressed company policy which was formulated independently of any dealings with the CIO. The Respondent further contends that it was justified in bargaining with the CIO after April 21 in disregard of the IAM because the IAM' had lost its majority status as a result of the discharges. As we have found that the discharges were valid, this contention has merit. As the TAM had lost its majority status, and a majority of the machinists had shifted their allegiance to the CIO, the Respondent was free to enter into the union-shop contract of May 29 covering production employees and the machinists.10 In view of the IAM's loss of majority status, as set forth, the Re- spondent was justified in refusing to bargain with that labor- organization. As the Respondent has not engaged in any of the unfair labor practices alleged, we shall dismiss the complaint in its entirety. 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 complaint herein against. Granite City Steel Company, Granite City, Illinois, be, and it hereby is, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. MEMBER MURDOCK, dissenting in part : . I have signed the majority opinion because I approve of its disposi-- tion of all issues of the case except for the finding that the concerted activity of the'seven foremen who struck was not protected by the Act. I cannot agree with the disposition of that issue and the reasons for my- disagreement follow : In my view the party who asserts that any concerted activity of employees 11 which could reasonably be deemed for "mutual aid or pro- tection" is not protected for some reason, has the burden of proof to establish such affirmative defense by a preponderance of the evidence. In other words, there is a presumption of validity attaching to. such concerted activity which must be successfully rebutted. I do not to Under the circumstances of this'ease , we find that the production workers and the maintenance machinists , either singly or in combination , constitute an appropriate unit for the purpose of collective bargaining. 11 Foremen , of course , were "employees" under the Act at the time the events of this case took place and concededly we must decide . the question of the protected character of their activity in accordance with the law as it was then. GRANITE CITY STEEL COMPANY 903 believe that the burden of proof of showing that the concerted activ- ity of those foremen was unprotected has been met by the respondent in this case: The record here is singularly lacking in evidence with respect to the circumstances surrounding the foremen's absence from work, includ- ing, of course, their motives. All that the record actually shows is the bare fact that seven foremen found by the Trial Examiner to be members of the IAM but not in the bargaining unit, were "among those who struck on April 22." 12 My colleagues curiously refer to the absence of any evidence as to whether the foremen's own work was affected by the adjustment of schedules, as a rebuttal of any presump- tion that their concerted activity was in their own interests. The majority finds, apparently on the single evidentiary fact of the TAM membership of the foremen, that they "struck solely in the interest and aid of the rank and file machinists who . . . were engaging in an un- protected concerted activity" in striking in breach of the contract. On the kind of a record that is before us, I. am unable to see where there is sufficient evidence to support a finding that the foremen acted solely in the interest of the rank and file rather than for their own interests. Moreover, even assuming, arguendo, that the foremen had no personal interest in the dispute over the work schedules but stayed away from work solely because of sympathy with the rank and file, I cannot accept my colleagues' view that such concerted activity would not come within the protected scope of the phrase "or other mutual aid or protection" in Section 7 of the Act. In the Peter Cailler Kohler Swiss Chocolates Co." case, the Court of Appeals for the Second Cir- cuit held that employees could even engage in protected concerted ac- tivity in behalf of nonemployees (dairy farmers), such activity being nonetheless for the "mutual aid or protection" of the employees them- selves as the farmers presently aided might reciprocate when their help was needed by the employees at some future time. The theory of recip- rocal "mutual aid" between different groups of employees, to which the court analogized the case before it, was stated by the court as follows : When all the other workmen in at shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved work- man is the only one of them who has any immediate stake in 12 The Respondent sent them telegrams stating that "Your absence from work together with other employees in a similar position constitutes cause for discharge," and that their employment would be terminated if they did not report for the next shift in accord with the new schedules. is 130 F. 2d 503, 505. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid" in the most literal sense, as nobody doubts. So too of those engaging in a "sym- pathetic strike," or secondary boycott; the immediate quarrel does not itself concern them, but by extending the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased. [Emphasis supplied.] This right of one group of employees to take concerted action for reciprocal "mutual aid and protection" on behalf of another group was clearly not lost in the instant case simply because the first group consisted of foremen. In the Packard Motor Car Company 14 case the Board stated that "it was to be expected" that associations of fore- men and of rank and file "will express moral sympathy for the organ- izational efforts of one another and will, on occasion, even refuse to cross the picket line established by the other during a strike." Simi- larly, in the L. A. Young Spring and Wire case15 with reference to the refusal of supervisors to cross a rank and file picket line, the Board said, "It is almost a rule of trade union ethics for one labor union to respect a picket line established by another." For all that appears from the record in the instant case, the failure of the foremen to report for work may have stemmed from nothing more than this repugnance to cross a picket line. It is not entirely clear from their opinion whether my colleagues' conclusion that the foremen's concerted activity was unprotected rests simply on their finding that the foremen were acting solely in the interests of the rank and file, or whether they held such sympathetic concerted activity as also unprotected for the reason that the primary rank and file strike which was in breach of the contract was an un- protected activity. If the latter holding is intended in the majority decision I likewise cannot agree with that. There is no showing in the record that the foremen, who were not in the unit and not covered by the contract, had knowledge of its terms or were advised by the employer or otherwise had knowledge that-the rank and file strike was in breach of the contract. I cannot subscribe to the doctrine that any group of employees who sympathetically respect a picket line estab- lished by another group, lose the protection normally accorded such concerted activity if the primary strike activity is unprotected because 14 61 NLRB 4 , 16 (later complaint case based thereon , 64 NLRB 1212 , enforced 157 F. 2d 80 (C. A. 6 ) and affirmed 330 U. S. 485). 15 70 NLRB 64. GRANITE CITY STEEL COMPANY 905 in breach of a contract, regardless of their lack of knowledge 16 of the unprotected character of the primary activity. . Inasmuch as the foremen here were discharged for striking, and the employer has failed to sustain the burden of proving its affirma- tive defense that their concerted activity was unprotected , the cus- tomary finding of a violation of the Act for discriminating against employees because they have engaged in concerted activity, should follow. INTERMEDIATE. REPORT Mr. Glenn L. Moller, for the General Counsel. Messrs. Ethan A. H. Shepley and William R. Bascom; Shepley, Kroeger, Fisse & Ingamells, of Counsel, all of St. Louis , Mo., for the Respondent. Mr. George Gratz, of Milwaukee, Wis., and Mr. Patrick P. Ryan, of St. Louis, Mo., for the IAM. Mr. John H. Martin, of St. Louis, Mo., and Mr. Lloyd McBride, of Granite City, Ill., for the CIO. STATEMENT OF TILE CASE Upon an amended charge duly filed February 17, 1948, by International Associa- tion of Machinists, District No. 9, herein called the IAM, the General Counsel of the National Labor Relations Board' by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued a complaint dated June 9, 1948, against Granite City Steel Company, Granite City, Illinois, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, prior to amend- ment, herein called the Act, and Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Act, as amended (Public Law 101. 80th Cong., Ch. 120, 1st Sess. ), herein called the amended Act. Copies of the complaint, with charge attached, and notice of hearing thereon were duly served upon the Respondent, the IAM, and the United Steelworkers of America, CIO, party to the contract, herein called the CIO. With respect to the unfair labor practices, the complaint alleged in substance that : (1) On or about March 24, 1947, the employees named in Schedules A and B struck, and on or about April 22, 1947, the employees named in Schedules C and D struck ; that the strike of March 24, 1947, was prolonged by, and the strike of April 22 was both caused and prolonged by, certain unfair labor practices of Respondent referred to below ; that on or about March 25, 1947, Respondent dis- charged the employees named in Schedules A and B; (2) on or about April 22, 1947, the Respondent discharged employees named in Schedules C and D ; that upon application for reinstatement by the employees named in Schedules B and D, the Respondent reemployed said employees by hiring them as new employees and thereby deprived them of their prior seniority status; (3) on or about April 21, 1947, the Respondent discriminatorily discharged George E. Crocker and Clif- ford H. Williams and since that date has failed and refused to reinstate them ; (4) on or about June 6, 1947, and at all times material herein, a unit consisting 3' Compare my dissenting opinion in Howland Dry Goods Company, 85 NLRB 1037. On the facts in the instant case one does not reach the more difficult question whether sym- pathetic concerted activity undertaken with knowledge that the primary strike is in breach of contract, becomes tainted by the infirmity of the primary strike and is also unprotected. i The General Counsel and his representative at the hearing are referred to as the Gen- eral Counsel and the National Labor Relations Board is referred to as the Board. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all machinists, machinist apprentices, machinist helpers, electric and acetylene welders, cutters or burners, steel-clad welders, toolroom attendants, roll grinders, roll turners, shear blade or knife grinders, shot blasters, car repairmen, car repair- men helpers, crane men in the machine shop and roll shop, and automobile mechanics, excluding foremen and all other supervisory employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of the Act and of the amended Act; (5) on or before June 6, 1947, a majority of the employees in said unit had designated the TAM as their bargaining representative and by virtue thereof, the IAM since on and before that date, and at all times thereafter, has been the exclusive representative of all employees in said unit for the purpose of collective bargaining; (6) on June. 6, 1947, and at all times there- after, the Respondent did fail and refuse to bargain collectively with the TAM, although the TAM was the duly designated representative of its employees in the above-described appropriate unit; (7) from on or about April 22, 1947, Respondent interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise'of the rights guaranteed in Section 7 of the Act and of the.Act as amended, by supporting, aiding, and assisting the CIO by granting to said CIO exclusive recognition as the collective bargaining agent of the employees in the bargaining unit of which the TAM was at the time exclu- sive representative and still is the exclusive bargaining agent and by entering into a union-shop contract with said CIO on or about May 29, 1947, at a time the TAM was the rightful bargaining representative; (8) and by the acts described above, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and in Section 7 of the amended Act. On or about June 23, 1948, the Respondent filed its answer and thereafter on or about July 1 amended the answer to make it more definite and certain, all pursuant to a motion of the General Counsel granted by the undersigned. In the answer as so amended, the Respondent admitted certain allegations in the com- plaint, but denied the commission of any unfair labor practices, and affirmatively alleged the commission of certain acts of violence, threats of violence, and phys- ical coercion by members of the IAM, together with the blocking of the entrance and departure of trains operating to and from the Respondent's premises in viola- tion of State and Federal statute, whereby such individuals so engaged forfeited whatever employee status with the Respondent they may have had. On or about June 23, 1948, the CIO filed its answer ; and on or about June 28, the said CIO filed its amended answer, wherein it admitted certain allegations of the complaint and denied the alleged appropriateness of the unit contended for by the TAM or that a majority of the employees in said unit had designated the IAM as their representative. Pursuant to notice, a hearing was held at St. Louis, Missouri, on various dates between June 30, 1948, and July 8, 1948, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the General Counsel, the Respondent, the IAM, and the CIO were each represented by counsel. All participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues, and at the close of the hearing, the parties were afforded an op- portunity to argue orally before the undersigned. All counsel participated in the argument which is included in the transcript of the proceedings. The parties were advised that they might file briefs and/or proposed findings of fact and con- clusions of law with the undersigned and briefs were filed by the General Counsel, counsel for the Respondent, the TAM, and the CIO. . GRANITE CITY STEEL COMPANY 907 Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, is engaged in the manufacture of flat roll steel at its Granite City, Illinois, plant. It receives annually at such plant raw material valued in excess of $1,000,000, of which approximately 10 percent is shipped to said plant from points outside the State of Illinois. The .Respondent annually manufactures at such plant finished products valued in excess of $21,000,000, of which approximately 90 percent is shipped from its plant to points outside the State of Illinois. The Respondent admits that it is -engaged in commerce within the meaning of the National Labor Relations Act and the Labor Management Relations Act of 1947. II. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists, District No. 9, and United Steel- workers of America, CIO , are labor organizations admitting to membership -employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The discriminatory discharge of strikers; the discriminatory refusal to grant returning strikers full status 1. Chronology of events The record discloses that the IAM has had contractual relations with the Respondent for many years, and consistently from on or about 1923 to July 1946, the date of the execution of the last contract between the parties. Prior to the execution of such contract and commencing in January of 1946 and extending to March 1946, the IAM and Respondent conducted a series of negotiations con- cerning a renewal of the then existing contract. One of the demands made by the IAM at this time was for overtime pay for work performed on Saturdays and Sundays as such; and upon Respondent's refusal to grant the IAM such premium pay for Saturdays and Sundays as such, the IAM went on strike on March 15, 1946, and put out a picket line. The picket line was effective since -none of the employees crossed it to go to work, and the plant closed down. The strike continued until on or about August 8, 1946, at which time the parties by a signed stipulation 2 submitted the question of overtime for Saturdays and Sunday as such, to a board of three arbitrators. 2 The stipulation is as follows : The Granite City Steel Company and the IAM, District No. 9, agree that a Board composed of the following, Mr. Elmer E . Hilpert, Mr. Meyer Pearlstein , and Mr. A. A. Abner, shall arbitrate the following issues : Shall all work performed on Saturdays and Sundays be compensated for at the rate ,of time and one-half , irrespective of the number of hours worked per week? The parties further agree that the judgment of the majority of the aforesaid panel shall constitute the decision of the whole and shall be final and binding upon the parties. It is further agreed that this decision shall become part of the working agreement between the parties and shall be effective until June 30, 1947. The stipulation was signed by the Respondent 's president and by Patrick P. Ryan and Lloyd weber , as representatives of the IAM. 908 DECISIONS'. OF' NATIONAL LABOR RELATIONS BOARD Also on August 8, 1946, the Company prepared a "Proposed Machinists Work Schedule,"' whereby over a 3-week period. an employee worked 15 days, which work days included but two Saturdays and one Sunday. The schedule was shown to and discussed with the IAM committee who approved it subject to the ratifica- tion of its members, and the latter subsequently voted approval of the work schedule. On or about August 12, 1946, the IAM and Respondent executed a union-shop contract dated as of July 1, 1946, and due to expire June 30, 1947. On the afternoon or evening of August 12, the IAM members then on strike held a meeting and (1) voted to accept the above-referred-to contract; (2) voted to accept the work schedule; and (3) voted to return to work pending "decision" (of the Arbitration Board). On March 10, 1947, the Board of Arbitrators handed down a decision disal- lowing the IAM's claim for premium pay for Saturdays and Sundays as such. On March 17, 1947, the business representative of the IAM, Lloyd Weber, wrote the Respondent's president as follows : This is to advise that effective Monday, March 24, 1947, ALL MEMBERS of District No. 9 of the International Association of Machinists will work in accordance with the schedule which was worked out by the representa- tives of the Granite City Steel Company and the Machinists Union's Shop Committee, and no other. For the purpose of identification this is the schedule introduced by the Company in the arbitration proceedings between the Granite City Steel Company and District No. 9 I. A. of M., and referred to in the majority decision in that matter. This is made effective March 24, 1947, to give your supervision time to re- assign our members in conformity with this schedule. (Signature) On March 20, 1947, Respondent wrote Weber as follows : We have received your letter dated March 17, 1947, relative to the work schedule in our plant. Pursuant to the provisions of Step #4, Section #6,4 of our agreement, we have appointed Mr. A. A. Abner, as our representative to adjust the matter, and Mr. Ahner will get in contact with you about it. (Signature) On March 21, Abner and M. D. Conroy, assistant to the president, on behalf of the Respondent, met with Patrick Ryan and Lloyd Weber, representatives of the IAM. The meeting ended without an agreement. Respondent's representatives suggested the need of further time to consider the matter and the IAM repre- sentatives stated that the Respondent should put all IAM unit employees on the work schedule after which they would discuss the work schedule further. No arrangement for a further meeting was made. 3 Herein at times referred to as the "work schedule" ; the "A B C schedule" ; and the "basic schedule." 4 ADJUSTMENT OF GRIEVANCES: Should any dispute arise over the interpretation or application of this agreement, there shall be no stoppage of work until the procedure outlined shall have been exhausted. Step # 4 . If grievance is not settled by the aforesaid process, such grievance shall be submitted to a representative appointed by District Representative for District No. 9, and a representative appointed by the Company. Such parties shall endeavor to settle amicably such grievance. If said parties fail to adjust such grievance, they shall then agree upon some method for the final disposition thereof. [Emphasis not in original.] GRANITE CITY STEEL COMPANY 909 . On March 24, some 46 employees , members of the IAM unit, failed to report for work.' On March 25 , the Respondent sent telegrams to the 46 men who did not report for work on March 24 , the telegrams read : 'ACCORDING TO OUR REGULAR POSTED SCHEDULE YOU WERE EXPECTED TO REPORT FOR WORK YESTERDAY AND YOU FAILED TO DO SO. YOUR ABSENCE FROM WORK TOGETHER WITH OTHER EMPLOYEES IN A SIMILAR POSITION CONSTITUTES CONCERTED AC- TION IN VIOLATION OF THE CONTRACT. WE CALL UPON YOU TO REPORT FOR WORK FORTHWITH. UNLESS YOU REPORT FOR WORK ON YOUR NEXT SCHEDULED SHIFT AS PER POSTED WORK SCHEDULE THE COMPANY WILL HAVE NO ALTERNATIVE BUT TO ASSUME YOU ARE NO LONGER AN EMPLOYEE OF THE COMPANY. [Emphasis supplied.] The parties stipulated that 15 of the 46 IAM members who failed to report for 'work on March 24 returned to work within the time stated in the above telegram without loss of seniority. The parties further stipulated that in those instances where IAM members , included in such group of 46, made application for reinstate- ment, they were reinstated as newly hired employees, with a resultant loss of "any rights flowing from seniority." On March 28, the Respondent mailed Notices of Ineligibility for Unemployment Compensation to all members who did not report to work on March 24, and who had not reported for work prior to March 28, 1947, which notices stated the reason for such alleged ineligibility as, "Failed to accept suitable work on 3/25/47." On April 2, Ryan, as IAM representative , telephoned Conroy, assistant to the president, and inquired concerning certain IAM unit members who had returned to work on that date. In this connection Conroy testified : Mr. Ryan, as I remember , asked me .. . he said : "I understand some of those men came back to work this morning ." I said, "Yes, there were sev- eral, I do not know how many. " He said, "I want to know what the status of those men is." I said, "New employees." On this occasion , Ryan asked Conroy what the status of other striking IAM members would be, if and when they should return to work and was advised by Conroy in substance that they would have to return as new employees' The parties stipulated that on Friday, April 18, 1947, two welders in the IAM unit, namely , Clifford H. Williams and George F. Crocker, had a discussion with 5 The parties stipulated that these 46 men were not working on the basic work schedule on March 17, 1947. 9 In this connection Conroy testified : Q. Did he ( Ryan ) inquire as to the status of any other striking IAM employee if and when they should return to work? A. Not that I remember. I do not remember discussing anybody else, but those men who came that day. [Emphasis supplied.] Since the record clearly discloses that the Respondent had definitely adopted a policy that those striking employees who did not report by the deadline set in the telegrams of March 25 would, if employed at all, be hired as new employees, the undersigned is convinced and finds that Ryan did inquire concerning the seniority status of the IADI striking employees as found above . The record further shows that on this same date , Ryan wired Weber, who was in Washington , D. C., and reported his contact with Conroy ; that the latter had stated that the IAM men rehired that morning were rehired as new employees ; and that "that would be the position of the company regarding the balance of (IAM) men who are not at work." 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their work supervisor concerning their proposed work schedule for the following week ; and that the two reported for work on April 21 and refused to work after having so reported. The record further discloses that Williams and Crocker were instructed by Master Mechanic Worthen to commence work on the day shift on Monday, April 21, 1947, through Friday of that week instead of their regular A B C schedule;. that they were advised by a shop committeeman of the IAM that they could not work any shift other than the 3:30 to 11: 30 p. m. shift ; that on the morning of April 21, they so reported to Worthen, who informed them that they were the next men up for day work, and that they could work or do whatever else they pleased. The two men informed Worthen that they "could not work it" and left the plant. On the afternoon of April 21, the Respondent sent Williams and Crocker tele- grams which read as follows: ACCORDING TO THE WORK SCHEDULE EXPLAINED TO YOU LAST WEEK YOU WERE EXPECTED THIS MORNING ON THE DAY SHIFT. UNLESS YOU REPORT ON YOUR NEXT SCHEDULED SHIFT TOMOR- ROW MORNING AT 8 A. M. THE COMPANY WILL HAVE NO ALTER- NATIVE BUT TO ASSUME YOU ARE NO LONGER AN EMPLOYEE OF THE COMPANY. Pursuant to notice,' and on the evening of April 21, the TAM held a meeting of its members who were employees of the Respondent. After considerable dis- cussion of "conditions" at the plant, the members voted to put a picket line around the plant and that those IAM members still on the pay roll should go on strike. The strike started shortly before midnight of April 21,' and a picket line was placed at the plant entrance. On April 22, the Respondent sent telegrams to seven foremen,' who the record discloses were members of the IAM, but who were not included in the IAM unit for bargaining purposes, nor were they covered in the then existing contract between the IAM and the Respondent. The telegram read : ACCORDING TO OUR REGULAR POSTED WORKING. SCHEDULE YOU WERE EXPECTED TO REPORT FOR WORK ---------- AND YOU HAVE FAILED TO DO SO. YOUR ABSENCE FROM WORK TOGETHER WITH OTHER EMPLOYEES IN A SIMILAR POSITION CONSTITUTES CAUSE FOR DISCHARGE. WE CALL UPON YOU TO REPORT FOR WORK FORTHWITH. UNLESS YOU REPORT FOR WORK ON YOUR NEXT SCHEDULED SHIFT AS PER THE POSTED WORK SCHEDULE THE COMPANY WILL HAVE NO ALTERNATIVE BUT TO ASSUME YOU ARE NO LONGER AN EMPLOYEE OF THE COMPANY. (Signature) ' The notice , signed by Ryan as "Asst . Bus. Representative" read : TO ALL EMPLOYEES now employed at the Granite City Steel Company , Granite City, Illinois: It is very important that all members attend their local meeting Monday, April 21st. A special order of business will be discussed in regard to conditions within the plant. 8 This strike is at times in the record and in this report referred to as the "April 22nd" strike. e Andy Walt, Huey Bell, Roy Harrelson , Ted Hiltz , Walter Boneau , Charles Hiltz, and William Redman. GRANITE CITY STEEL COMPANY 911 On April 29, the Respondent mailed to all employees named in Schedules C 10 and D," who had not yet returned to work, notices of possible ineligibility for unemployment compensation in the same general form as the notices sent to the strikers of March 24, described hereinabove. The notices sent to the April 21 strikers stated, "discharged on (date of the last day worked by employees inserted) for misconduct connected with work." [Em- phasis added.] On April 29, a meeting was held before one Hummert, a conciliator at which the Respondent was represented by its president, Niedringhaus, Conroy, "and possibly others," and the IAM was represented by Ryan and Weber. The meeting had been requested by the IAM. In this connection Conroy testified : Q. Do you remember that at that meeting, you or some other representative of the company, advised the Machinists they were all discharged, or fired, and that the company would take about 30 of them in the machine shop? A. It was not said that way. I think they said all jobs had been filled with the exception of 30 jobs. I think Mr. Niedringhaus made that statement. . Q. What is your best recollection now just what Mr. Niedringhaus said? A. Just to the extent that all the jobs had been filled and there were still 30 jobs open that had not been filled, and that we would entertain anybody coming back who wanted to fill the jobs. . Q. Did he make it clear to the Union at that time that those persons or any other applying would come back as a new employee? A. I do not remember that statement being made. Q. But that was the position of the company at the time? A. Yes, sir, it was is Issues; contentions; conclusions The Respondent, in substance and effect, contends that: (1) the strikes of March 24, 1947, and April 21, 1947, were in violation of the contract of July 1, 1946; (2) the employees who went out on strike on March 24 and April 21 had forfeited their status as employees, with the result that the Respondent was free to replace all strikers; (3) if, however, it be found that the rehiring of certain striking employees on April 2, 1947, and on other dates between March 24, 1947, and June 6, 1947, as new employees, with loss of seniority rights, constitutes an unfair labor practice under the law, the Respondent should, none- theless, be absolved therefrom since it had rehired such employees as new em- ployees without seniority status upon a good faith belief;` that to have done 15 Employees named in Schedule C are those who did not report for work on April 22, 1947, and who have not since that time returned to work. ' Employees named on Schedule D are those who did not report for work on April 22, 1947, but did thereafter return to work but with the status of new employees. 12 The Respondent contended that such notices did not constitute a discharge or a notice of discharge to the employees named in Schedules C and D who went out on strike April 21, since they were not the formal "pink slips" normally used by the Respondent when it discharged any employees. The notices did, however, affirmatively state that such dis- charges had, in fact, occurred on a date certain, with the result that such dischargees might be ineligible for unemployment compensation. Such notices constituted an admission by the Respondent that the employees who received such notices had, in fact, been discharged on the dates stated in such notices. ' It should be noted that the above-referred-to meeting was held within a week of the April 22 strike. " The rehired employees had indicated either directly or indirectly that they had joined the CIO with which the Respondent then had contractual relations, and was negotiating for renewal of the then existing contract. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD otherwise would have constituted illegal aid to the CIO in violation of the Act and the amended Act; and (4) in any event the striking employees had forfeited their status as employees by certain acts of threats of violence, violence, and the illegal picketing of certain railroad crossings in the vicinity of the Respondent's plant. As to contention (1), which will be considered (a) under the terms of the July 1, 1946, contract; and (b) the Respondent's claim that the work schedule with its ramifications became a part of the July 1, 1946, contract and was thus effective and binding until June 30, 1947. (a) July 1, 1946, contract Part 6 of the July 1, 1946, contract provides : 6. ADJUSTMENT OF GRIEVANCES: Should any dispute arise over the interpretation or application of this agreement, there shall be no stoppage of work until the procedure herein authorized shall have been exhausted. [Emphasis supplied.] Step 4. If grievance is not settled by the aforesaid process, such grievance shall be submitted to a representative appointed by the District Represent- ative for District No. 9, and a representative appointed by the Company. Such parties shall endeavor -to settle amicably such grievance. If said parties fail to adjust such grievance, they shall then agree upon some method for the final disposition thereof. [Emphasis supplied.] As is found above, the IAM, on March 17, notified Respondent's president in substance that ALL MEMBERS of the IAM would, commencing on Monday, March 24, work *on the work schedule that had been worked out between the parties on August 8, 1946, "and no other" ; that by letter of March 20, the Re- spondent elected to treat the IAM's demand as a grievance under #6 Step #4 of the July 1, 1946, contract, and informed the IAM that Mr. A. A. Abner had been appointed as Respondent's representative ; that Abner, accompanied by Conroy, acting for the Respondent, met with weber and Ryan as representative of the IAM ; that the parties were unable "to settle amicably such grievance" ; and were also unable to "agree on a method for final disposition thereof" ; with the result that the IAM employees not employed on the work schedule 15 went on strike on March 24. The Respondent's position is, in effect, that the outlined procedure for adjustment of grievances provided in the contract had not been "exhausted." In this connection Conroy testified : Q. Referring now to General Counsel Exhibit #6, the telegram of March 25th which you sent to all of the March 25th (24) strikers, you state here- in "Your absence from work together with other employees in a similar position constitutes concerted action in violation of the contract. Trial Examiner WARD : Let the witness see the telegram : By Mr. HOLLER : Q. Was the reason for that statement that the strike was in violation of the contract the fact that the Union had not exhausted the grievance pro- cedure? A. We felt neither side had exhausted the grievance procedure. 11 The work schedule is sometimes in the record referred to as the A B C schedule. GRANITE CITY STEEL COMPANY 913 Q. Then your statement in the telegram to the employees that their strike was a violation of the contract was based on your belief that the Union had not exhausted the grievance procedure? A. Neither side had. Q. That neither side had? A. Yes. Q. Is that correct? A. That is correct. The IAM's position in this connection is first, that the provision of Step 4 of the grievance procedure which provides: "If said parties fail to adjust such grievance, they shall then agree upon some method for the final disposition thereof," is incapable of enforcement by reason of uncertainty since "an agree- ment to reach an agreement imposes no obligation on the parties thereto" (12 Am..Jur. p.521) ; and second, that the parties did in fact exhaust the grievance procedure of the contract at the March 21. meeting in that after a long confer- ence, the parties came to no agreement on the question of employing all JAM unit members on the A B C work schedule as demanded by the JAM, nor did the parties reach an agreement as to any other method of settling the grievance. The TAM proposed that all TAM unit members be put on the A B C work schedule after which the TAM would negotiate further on the schedule; and the Respondent proposed that it continue without placing all TAM unit mem- bers on the schedule while the parties continued further efforts at settlement and thus the parties'reached a deadlock. In support of its first contention above, counsel for the. JAM cites , Williston on Contracts, Section 45, with the text as follows : Offers and Agreements where Something is Reserved for Future Deter- mination Although a promise may be sufficiently definite when it contains an option given to the promissor or the promissee, yet if an essential element is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Since either party to the very terms of the promise may refuse to agree to anything which the other party will agree, it is impossible for the law to affix any obligation to such promise; The TAM counsel further cited 12 Am. Jur. Section #24 (p. 521), the text of which is in part as follows : . . . Unless an agreement to make a future contract is definite and certain upon all of the subjects to be embraced, however, it is negatory. An agree- ment that they will in the future make such contract as they may agree upon amounts to nothing; To be enforceable, a contract to enter into a future contract must specify all its material and essential terms and leave none to be agreed upon as result of future negotiations. That the foregoing citations correctly state the rule of law contended for by the JAM is confirmed in Vol. 6, Ruling Case Law, 617, 618, under the subject of contracts, as follows : 38. Agreement to Make Contract. An agreement to agree to do a certain specified thing, all the conditions of the postponed agreement being specitia. 87.7359-50-vol. 87-59 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is simply an agreement in praesenti to do it. However, unless an agreement to make a future contract be definite and certain upon all the subjects to be embraced, it is negatory. . . . An agreement that they will in the future make such contract as they may then agree upon amounts to nothing. So, to be enforceable, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as result of future negotiations... . From the above, the record, and the law, it is clear that neither party was, under the circumstances disclosed above, obliged to "agree upon some method for the final disposition" of the grievance. (b) The work schedule as a part of the July 1, 1946, contract Counsel for the Respondent, in his brief, after recounting the Respondent's version of the adoption of the work schedule, states : It likewise became a part of the basic relationship between the Union (IAM) and the Respondent, "which was to pertain" until June 30, 1947. [Emphasis supplied.] After a recital of his version of events leading up to the IAM 's demand of March 17 that all JAM unit employees be placed on the A B C work schedule, counsel for the Respondent in his brief further states : We submit, therefore, that the evidence is clear that the union (JAM) had agreed in August 1946 that forty or fifty of its members should work on schedules other than the principal schedule (A B C schedule) ; that the posi- tion taken in its letter of March 17, 1947, that all of its members should work on that schedule was contrary • to the agreement and was motivated by a desire to avoid the consequences of the adverse Arbitration Award which it had likewise agreed to accept ; '' and that the strike of March 24, 1947 and April 21, 1947, constituted a violation of these contractual obligations by the union (JAM). The record discloses that the July 1, 1946, contract, the Stipulation for Arbi- tration, and the A B C work schedule were all negotiated at the same time ; that the decision in the Arbitration meeting was to become part of the July 1 contract and effective until June 30, 1947; but the record contains no evidence indicating that the parties intended that the work schedule was to run for any set period of time or that it was to become a part of the July 1, 1946, contract. It is most unlikely that the Respondent would have agreed to make the work schedule a definite part of the contract since an adverse decision by the Arbitra- tion Board against it would have required the Respondent to pay, on the average, time and one-half for 1 day in every 5 worked by the men. Moreover, it is clear'that the JAM members did not understand that by voting approval of the A B C schedule they were agreeing that they would have to con- tinue working until June 30, 1947, since the minutes of August 12, 1946, meeting of the JAM employees then on strike, disclosed that they voted "to return to work 16 It should be noted that the Stipulation for Arbitration was confined to the question as to whether "work performed on Saturdays and Sundays be compensated at the rate of time and one-half, irrespective of the number of hours worked per week" ; that the work hours under the A B C schedule (lid not conflict with the Arbitration Award ; and that by making such a decision a part of the existing contract, the JAM employees were foreclosed, until June 30, 1947, in making the demands denied in the Arbitration Award. GRANITE CITY STEEL COMPANY 915 pending decision" (by Arbitration Board), by a vote of 113 for and 21 against returning to work. The record will not support a finding that the parties contracted that the A B C work schedule or any variations thereof would be effective for any time certain or that the schedule would be effective until June 30, 1947. Assuming, arguendo, that the A B C work schedule, with its alleged variations, had been in fact made a part of the July 1, 1946, contract, would such fact make the strikes of March 24 and April 21, 1947, illegal strikes? The July 1 contract does not contain a "no strike" clause as such, but under Section 6 does provide that "there shall be no stoppage of work until the pro- cedure here outlined shall have been exhausted." As found above, upon receipt of the IAM letter of March 17, demanding that all IAM unit members be put on the A B C schedule, the Respondent elected to treat such demand as a grievance under the contract; representatives met pursuant to Step #4 of the grievance procedure; were unable to settle the dispute and were unable to mutually agree on a method of settlement; that the dispute had to do in the main with the A B C schedule insofar as the IAM was concerned and both the A B C and its ramifica- tions insofar as the Respondent is concerned is clear; and that the A B C schedule with its variations was the grievance which gave rise to the labor dispute and which was discussed by representatives of the parties on March 21, 1946, to the same effect that it would have been, had such, schedule been a part of the July 1, 1946, contract is clearly evident. From the foregoing and the record, the undersigned concludes and finds (1) that prior to the strikes of March 24, 1947, and April 21, 1947, the parties had exhausted the procedure provided in Section 6 of the July 1, 1946, contract en- titled "Adjustment of Grievances" and Step #4 thereof, and that the provision of said Step 4 which states : "If said parties fail to adjust such grievance, they shall then agree upon some method for the final disposition thereof" created no obligation legal or otherwise on the parties. The Respondent's contention (1) is without merit. As to contention (2). Anent the alleged loss of employee status by strikers. The Respondent in its telegram of March 25, addressed to the March 24 strikers, stated in part : YOUR ABSENCE FROM WORK TOGETHER WITH OTHER EM- PLOYEES CONSTITUTES CONCERTED ACTION IN VIOLATION OF THE CONTRACT. . . . As found above, the employees did not violate the "no strike" provision allegedly contained in the Adjustment of Grievance Procedure of the contract; and from the facts found hereinabove, it is clear that all the strikers ceased work in connection with a labor dispute" regarding terms and conditions of such employment. Such strikers are, therefore, employees within the meaning of Section 2 (3) of the Act.18 From the foregoing, it necessarily follows that the March 24 strikers retained their employee status when they went out on strike, which strike was, at least -until the receipt of the Respondent's telegram on 27 Section 2 (9) defines the term "labor dispute," as used in the Act, as "any controversy concerning terms, tenure or conditions of employment , or concerning the association or representation of groups in negotiating , fixing, maintaining, changing or seeking to arrange terms or conditions of employment . . . xs This section reads in part : "The term `employee' shall include any employee . . . and shall include any individual whose work has ceased in consequence of, or in connection with, any current labor dispute or because of any unfair labor practice. .. . 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 25, an economic one, during which time the Respondent was at liberty to replace the strikers 10 The facts as found hereinabove disclose, however, that by its March 25 tele- gram, the Respondent intended to and did discharge all strikers who (lid not report for work on the Wednesday, March 26, shifts, the deadline set for their return in such telegram. The concluding sentence of the telegram read: UNLESS YOU REPORT FOR WORK ON YOUR NEXT SHIFT AS PER THE POSTED WORK SCHEDULE THE COMPANY WILL HAVE NO ALTERNATIVE BUT TO ASSUME YOU ARE NO LONGER AN EM- PLOYEE OF THE COMPANY.2° Fifteen of the 46 strikers returned within the time limit set and were reinstated to their former positions without loss of seniority rights. On April 2, 1947, however, two 21 additional strikers reported for work and were hired as new employees without seniority status, which facts were conveyed by Conroy to Ryan on the latter's inquiry, made on April 2, concerning such ;status, and as is found hereinabove, Conroy then informed Ryan, in substance, that the Respondent would rehire remaining strikers, if at all, as "new employees" only. While Respondent's witnesses would not admit that it had "discharged" 22 the strikers, the Board and the courts have frequently held that conduct such as found above constitutes discriminatory discharges entitling the dischargees to reinstatement with back pay and without the necessity of making formal appli- cation, "since such application, under the circumstances, would have been a useless gesture." 23 In Lone Star Gas Connpany,24 wherein it appears that on June 29, 1937, the company wrote a certain group of strikers in part, as follows : . If you do not return to work by Saturday, July 3, 1937, at S a. M. we will assume that you have terminated your employment relations with the Company and we will act accordingly. The striking employees to whom the respondent sent letters on or about June 29, 1937, notifying them that unless they returned to work by 8 a. m. July 3, 1947, the respondent would consider the employment relation termi- nated, were employees within the meaning of the Act and protected against the unfair labor practices denounced by it, since they had ceased work as a consequence of a labor dispute still current and had continued to refrain 19 See Jeffery-De Witt Insulator Co. V. N. L. R. B., 91 F. 2d 134 (C. A. 4) enforcing 1 NLRB 018 cert. denied 302 U. S. 731 ; Black Diaonond S. S. Corp. V. N. L. R. B., 94 F. 2d 875 (C. A. 2) enforcing 3 NLRB 84, 118 F. 2d 874 (C. A. 1) enforcing 12 NLRB 944 cert. denied 313 U. S. 595. 20 On April 22, following the strike of April 21, the Respondent wrote Weber, as the IAM business representative , and informed him in substance that what had been stated to the March 24 strikers by telegram was also applicable to the April 21 strikers, and that he was to advise the latter that : . . . to the extent we are obliged to employ others to perform the work formerly done by them , their places will have been filled on a permanent basis and their former positions will no longer be available to them, if and when they should later decide to come back. 21 Between April 2 and April 21, four additional strikers returned to work, but as "new employees." 22 Such witnesses did testify that it was the "intent of the company" to hire returning 'strikers as "new employees." 2s See Register Publishing Co., Ltd ., 49 NLRB 834, 848. 2418 NLRB 424, 450. GRANITE CITY STEEL COMPANY 917 from working because of the respondent's unfair labor practices. The June 29 letters informed the striking employees in unmistakable terms that the respondent considered their continuing to refrain from working beyond July 3, 1937, as a renunciation of the employment relationship. By this pro- cedure the respondent intended to, and in fact did, discharge such of the striking employees as received the letters and did not return to work on July 3. It is plain from the letters themselves that the respondent dis- charged these employees for the reason that they continued to strike beyond the dead-line fixed by the respondent, that is, for exercising their unques- tioned right to refrain from working because of a labor dispute. A discharge for this reason is contrary to the express provisions of the Act and is dis- criminatory within the meaning of Section S (3) thereof. We find that the respondent discriminated in regard to the hire and tenure of employment of the striking employees who received the June 29 letters and slid not return to work on July 3, thereby discouraging membership in a labor organization. «7e further find that this unfair labor practice pro- longed the strike. In the Industrial Cotton Mills Company, Inc.,25 the Board stated that when an employer . . . finally discharges the strikers and bars their return to work, it thereby effectively indicates to them the futility of applying for reinstatement. Their failure to make application for reinstatement in such a situation, clearly does not militate against them . . .20 The Board has held 27 that an employer may not refuse to reinstate economic strikers whose places have not been filled, nor may he attach any discriminatory condition to their reinstatement. The Board said : Upon the entire record, we find, as did the Trial Examiner, that on and after October 17, 1941, the Respondent regarded the strikers as new emn- ployees and conditioned their reinstatement upon the execution of an "em,ployment application" and the united withdrawal of its charges filed on behalf of the employees, in violation of Section 8 (1) (3) and (4) of the Act. We further find, as did the Trial Examiner, that the strike com- mencing on September 15, 1941, was prolonged by the Respondent's unfair labor practice. [Emphasis supplied.] It is clear from the foregoing and the record that all strikers having gone on strike as a result of the current labor dispute retained their status as employees of the Respondent; that all strikers 28 were discharged for engaging in concerted activities; the Respondent on April 2, 1947, and thereafter, by refusing to hire striking employees except as new employees with the resultant loss of seniority rights theretofore accrued, served notice that an application by any of the striking employees for full and complete reinstatement would be of no avail. 25 50 NLRB 855. 26 The Respondent makes no contention that the strikers would have been reinstated to their former positions had they applied after the deadline set in the March 25 telegrams as to the March 24 strikers, and after Respondent's letter of April 22 to Weber as to the April 21 strikers, but does contend that as of April 29, 1947, it had some 30 positions open for which they could have applied, but presumably as new employees only. 27 St. Mary Sewer Pipe Co., 54 NLRB 1226. 28The case of Williams and Crocker is considered further in Section III B below. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It therefore follows that the strikers and each of them retained and stilt retain their rights to the positions they held with Respondent prior to the strikes ; and that the Respondent has, by the unfair labor practices found above, forfeited its rights to permanently replace the strikers. The Respondent's contention (2) is without merit. As to contention (3): Wherein the Respondent contends that before certain acts of Respondent may be found to constitute an unfair labor practice, "the motive and purpose of such act must be examined altd determined," and as to the acts described as constituting unfair labor practices it is necessary "to deter- mine whether or not the motivation of the Respondent was to discriminate against or to penalize in any way the members of the IAM because of their concerted action." In his oral argument made before the undersigned, at the close of the hearing in the instant case, counsel for the Respondent stated in part : In connection with the denial of seniority to various members, nine mem- bers, I think the proof shows, of the IAM who returned to work between March 24 and June 6, whether as an expert thoroughly trained In the mechanism of the Labor Law or not, the evidence shows clearly that the purpose and the motivation for the denial of seniority to those nine men was the feeling by the company that any other course would have consti- tuted a step away from the neutral position which they were under the impression it was essential they maintain in the status which then existed. Understand, in examining that position by the company, which has been thoroughly developed in the evidence, we are not contending that as a matter of law granting seniority to those returning as Machinists would have con- stituted an unreasonable assistance to the United Steelworkers. We are simply contending that the evidence shows the Management of the Granite City Steel Company were reasonably under that impression, and that impression was the motivating cause for the action which they took in that respect. It is clear from the record that the refusal by the Respondent to offer to the returning strikers full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges was a violation of Section 8 (3) of the Act and 3 (a) (3) of the Amended Act. As found in the, Star Publishing case,23 the Court of Appeals for the Ninth Circuit stated The Act prohibits unfair labor practices in all cases. It permits no im- munity because an employer may think that the exigencies of the moment require infraction of the statute. In fact, nothing in the statute permits or justifies its violation by employers. The Board and the courts have held that fear of necessity of shut-down if unionized; 30 fear of reprisal by rival unions 31 or a threat of economic hardship 32 are no defense for the commission of unfair labor practices by employers. It is clear from the foregoing and the record that the Respondent's purported motive is no defense for the unfair labor practice found in this connection. The Re- spondent's contention (3) is without merit. 20 97 F . 2d 465 , 470-5 (C. A. 9). aO Atlas Underwear, 116 F. 2(1 1020 (C. A. 6). 21 Hudson lfotor Company, 128 F . 2d 528 ( C. A. 6). 32 MeQuay-Norris, 116 F. 2d 748 (C. A. 7). GRANITE CITY STEEL COMPANY 919 As to contention (4), which was first raised in the amended answer filed by the Respondent pursuant to a motion of the General Counsel, granted by the under- signed to make the answer more definite and certain, the record discloses in sub- stance: (a) That Frank B. Davis, a welder, had been employed by the Respond- ent from December 1946 until he went on strike as an IAM member on April 21; that he signed a CIO authorization card on April 23 and returned to work on April 24 as a "new employee" ; that about a week or two after his return to work, he was accosted by Ward Montgomery, Howard Eggley, IAM strikers, and a third person unknown to Davis, as the latter left a grocery store. According to Davis' credited testimony : Montgomery walked up to me and said, "I see you are going in and out down there." I said, "Yes." He said, "That is a pretty damned way to do us." I said, "I have to make a living." He said, "Do you know, I have a notion to kick hell out of you.". I said, "Well, I can't help it." I said, "I have got to pay for my house. I have to work." He said, "If you don't stay out of that place, you will lose a damned sight more than your house." Eggley said, "That's right," and all three of them went back to the auto- mobile. ' Q. What did you do? A. I went on home. On May 13, as Davis was on his way home after work, he was intercepted by Eggley and George E. Wetzel, another IAM striker, and severely beaten by them. Wetzel thereafter pleaded guilty in a local court and was fined for criminal assault and battery; 33 (b) that sometime shortly after May 10, 1947, while on the IAM picket line at the Respondent's plant, Ora E. Moss was called by IAM Striker Grant Wilson to the latter's car. In this connection Moss testified : Q. All right. Now go ahead and describe what happened. A. He just came up on the sidewalk to me and said, "Moss, come over, I want to talk to you." I walked with him and we got in the back seat of his car. The car was on 20th street in front of the personnel office. He said, "Moss, I heered you were going back to work." I said, "Yes, I was think- ing about it." He said, "If you do, I will beat the shit out of you." Those were the words he used. Q. What did you say? A. I told him I was not going back to work. I took him at his word. Moss further testified that subsequent to the above-described incident and while he was still on the IAM picket line, Charles Claychamp, another picket, told him, "I understand Highsmith went back to work, and if they (strikers) Start going back to work, we are going to have to start busting heads." Moss joined the CIO and returned to work about June 21, 1947; (c) that William B. Warren did IAM picket duty for a time. On an occasion before he returned to work for the Respondent, he and his brother were on their way to attend a meeting "to see something about returning to work." when Wetzel and one Griffin left the picket line and approached Warren and asked him if he knew anything about such meeting and when the latter answered in the affirmative, Griffin said, "You better watch out how you attend meetings. You are liable to 33 It appears that as Davis did not know Eggley's name at the time he "swore out a war- rant" for Wetzel, none was "sworn out for Eggley." It should be noted that both the threat of assault and the assault found above occurred when Davis was away from the plant. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get a kicking out of it"; (d) that on an occasion when Harold C. Best, an em- ployee of the Respondent, who had never been an IAM member, was in a certain supply store near the plant, he was accosted by Montgomery who said, accord- ing to Best's credited testimony : "Swell God-damned son of a bitch you turned out to be." He said, "Is that the way you feel'about it?" and I said, "Yes." He said, "Don't you know we are out for more money?" I said, "I don't know that. It appears to me like you fellows don't even want to work," and that is what I said. He said, "Is that the way you feel about it?" and I said, "That is the way I feel." He said a few more smart remarks but I can't recall the exact words of it, and then he walked out... . Montgomery remained stationed outside of the store. Best then telephoned the plant watchman and informed the latter that Montgomery was waiting for Best to come out of the National store, after which a personnel man from the plant joined Best at such store by which time Montgomery had left the vicinity; (e) that after John M. Patrich had returned to work on or about April 7, 1947, he was pinned up against the employment office by a couple of pickets. Patrick testified : Q. Who shoved you up against the wall? A. Well, I don't know his last name, but his first name is Ted. Q. Was there any conversation? A. Yes sir. Q. What did he say? A. Tie said, "You don't have to sneak around the picket line, you might just as well walk through it." I told him I wasn't sneaking around. He said, "You ran into me deliberately." He pushed me around two or three times* and held me there. Of course, I didn't start no trouble, I just made the remark that I wasn't sneaking in. and (f) as to the picketing of certain railroad crossings or spurs, the record discloses that on April 26, 1947, a "Terminal" railroad train with a switching crew was approaching a point where it could have gone on into the Respondent's property or on to the property of a brickyard company or another company; that a group of wholly unidentified pickets were "milling back and forth across the track" ; that the train in question stopped, after which some of the "pickets" talked to "the conductor and the switching crew, and they went on back." 84 The two respondent witnesses who testified in connection with the above event each testified that they could not identify any of the group by name. While the Respondent's amended answer alleges, inter alia, illegal picketing of the Illinois Terminal Railroad Company's right-of-way, it offered no evidence a' On cross-examination, the witness, R. C. Tendell, who gave the above-quoted testimony, testified : Q. After some individuals among this picket group went over and talked to the locomotive engineer or member of the locomotive crew, at that point then, the loco- motive picked up and left? A. Yes, sir. Q. And that is all that happened? A. Yes, sir. GRANITE CITY STEEL COMPANY 921 in support thereof," and since none of the pickets were identified in connection with the picketing of the Terminal Railroad Association's right-of-way, no find- ing adverse to the IAM may be made in such connection.66 The Respondent's amended answer, in substance, alleges that the acts of violence and threats of violence were committed by IAM strikers, "as repre- sentatives and on behalf of [the IAM]." The one act of violence deemed ma- terial herein by the undersigned is that found to have been committed against Davis by Howard Eggley and George Wetzel ; however, since this act of violence was not committed on or in the vicinity of the picket line, nor in the presence of any known or authorized agents of the IAM, the latter may not under the circumstance found above, and under the "ordinary law of agency," n be held responsible for the acts of Eggley and Wetzel. The incidents found in connection with Moss, Warren, Best, and Patrich are the type not unusual in connection with strikes and are of such a minor nature as not to warrant a finding or recommendation that the strikers in question " had forfeited their status as employees " It is so found. Respondent's contention (4) is without merit. Conclusions From the foregoing and upon the entire record, the undersigned concludes and finds that, by on or about March 25, 1947, terminating the employment of the employees named in Schedules A and B and by on or about April 22, 1947, terminating the employment of the employees listed in Schedules C 40 and D, 36 Respondent's witness, William C. Cessna, in this connection testified : Q. Now, Mr. Cessna, on that same morning and at that same time, or about the same time,• did you see an Illinois Terminal Railroad train head for the company's property? A. No, I never. Q. You did not see them head for it? A. No. Q. Did you see them stop at the company gate? A. That was too far away. That was about 3 or maybe 4 blocks from where we were at. Q. Did you see any pickets from Madison Avenue walk up toward the entrance of the plant used by the Illinois Terminal men? A. Well, there were men going up through there but I could not say they were pickets. It is used in there for a thoroughfare for 16th Street people, walking and going through there. I could not tell just exactly . . . I never noticed whether pickets or who. There were too many people going through. " Brown Radio Service and Laboratories, 70 NLRB 476, 478. 37 See Sunset Line and Twine Co., 79 NLRB 1487; see footnote 37, which states : "The statute does not regulate the conduct of individuals acting in a private capacity ; only employers and labor organizations or their agents can commit unfair labor practices. See Sections 8 (a) and 8 (b)." 33 Namely : Wilson, Claychamp, Griffin, Montgomery, and a striker identified merely as "Ted." "See N. L. R. B. v. Stackpole Carbon Co., 105 F. 2d 167 (C. A. 3) ; rehearing denied 105 F. 2d 179 ; (certiorari denied 308 U. S. 605). In which the court stated inter alia: . . . We cannot conclude that the rights given to employees under the National Labor Relations Act are destroyed because of violence of a type as common to labor disputes as a fist-fight upon a picket line. . . . See also Republic Steel Corp. v. N. L. R. B., 107 F. 2d 472, at page 479. 40 Included in this group are the seven foremen named in footnote No. 9, each of whom joined the strikers on April 21 and received telegrams as found hereinabove. The Re- spondent, in substance, contends that since the foremen were excluded from the unit repre- sented by the IAM, and that the Respondent "was not officially informed of their Union 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent discriminated with respect to their hire and tenure of employ- ment, thereby discouraging membership in the IAM, and interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned further finds that the unfair labor prac- tices prolonged the strike of March 24, 1947, and caused and prolonged the strike of April 21, 1947. B. The discrimination against Clifford H. Williams and George E. Crocker" As is detailed, in part, above, Williams and Crocker joined the March 24 strikers as result of being taken off the A B C Schedule on April 21, on which date the Respondent sent them the telegrams hereinabove set out ; on April 29, they, along with others who went on strike on April 21, each received the Notice of Ineligibility for Unemployment Compensation sent by the Respondent, which notices gave as the reason for their possible ineligibility for such compensation, the fact that they had been "discharged on 4-21-47 for misconduct connected with work." 42 [Emphasis supplied.] Under date of May 27; 1947, counsel for the Respondent, in a letter addressed to a Field Examiner for the Board, setting forth the Respondent's "understand- ing of the facts" in connection with the labor dispute which gave rise to the instant case, stated, as to Williams and Crocker, in part: The company promptly advised these men by telegram on the afternoon of April 21, 1947, that unless they reported for work on their next scheduled shift (at) 8: 00 a. in. April 22, 1947, the company would consider them discharged.43 As found above, the March 24 strike grew out of the IAM's contention that all of its members should work on the ABC Schedule. Williams and Crocker were, on April 21, and insofar as the record discloses, had been continuously employed on such schedule since August 1946. The only reason indicated in the record for taking Williams and Crocker off the A B C shift was stated by Master Mechanic Worthen, that they were the next men "up for day work." The A B C Schedule provided for a day shift and the Respondent gave no plausible explanation as to why Williams and Crocker were not placed on it. From the foregoing and the record, it is clear that Williams and Crocker concertedly went on strike on April 21, 1947, as the result of a current labor dispute ; that they were discharged on the same day for such concerted activity; affiliation," it may not be found to have discriminated against them. This contention is without merit. The foremen were discharged for concertedly going on strike as the result of a current labor dispute as were the other strikers who did not report for work pursuant to telegrams received, and the foremen were entitled to reinstatement to the same extent as others named in this group. (See Republic Steel Corporation, 77 NLRB 179; and Eastern Coal Corporation, 79 NLRB 1165). "These discharges are here considered further by reason of the fact that they were dis- charged on April 21, 1947, before the balance of the IAM unit employees joined the strike on April 21. 92 See footnote 12. *3 The telegram as actually sent to Williams and Crocker concluded as follows : . . . UNLESS YOU REPORT ON YOUR NEXT SCHEDULED SHIFT TOMORROW MORNING AT 8 A M THE COMPANY WILL HAVE NO ALTERNATIVE BUT TO ASSUME YOU ARE NO LONGER AN EMPLOYEE OF THE COMPANY. [ Emphasis supplied.] from which it is clear that by the use of the phrase above italicized the Respondent meant that if the employees did not report within the time limit set in its telegrams to these two strikers, it "would consider them discharged." GRANITE CITY STEEL COMPANY 923 that they thereafter retained and still retain their status as employees of the Respondent; and that by the discharge above described, the Respondent dis- criminated with respect to their hire and tenure of employment, thereby dis- couraging membership in the IAM, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act and in Section 7 of the amended Act. It will be recommended below that Williams and Crocker, along with the other employees listed in Schedule C, be reinstated to their former positions in the manner and to the extent hereinafter set forth in connection with the employees listed in Schedule C. C. Interference; restraint ; coercion The complaint alleges, in part, that the Respondent from on or about April 22, 1947, in violation of the Act, supported, aided, and assisted the CIO, by granting to the said CIO exclusive recognition as collective bargaining agent of the employees which the JAM was, at the time of said exclusive recognition of said CIO, and still is, the-exclusive bargaining agent of the employees in the unit hereinafter found to be appropriate, by entering into a union-shop contract with the CIO on or about May 29, 1947, hereinabove referred to. Following the decision of the Arbitration Board on or about March 12, 1947, hereinabove referred to, the different locals of the CIO engaged at the Respond- ent's plant, discussed such decision and thereafter passed "motions" to the effect that they would not support the IAM in disputes "about schedules and overtime." These "motions" were adopted by all but one CIO local between March 10 and 24, and by the one local which met after March 24, and took the same action. On March 24, upon learning of the IAM strike, Lloyd McBride, CIO repre- sentative, got in touch with Conroy by telephone, with the result that a meeting was held on either March 25 or 26.at Conroy's office. President Niedringhaus, Conroy, and Veeder represented the Respondent, and the CIO was represented by McBride, Walter Love, McBride's superior, and Loran Goad, a CIO committee- man. The CIO representatives informed the respondent group that 12 roll grinders (IAM) had applied to the CIO for membership and would return to work that day (March 26) ; and that the CIO would give the same protection to any of the men who came in that it "would give to all of the men under" its jurisdiction." At a further meeting held within a day or two of the next above-mentioned meeting, the CIO group infornied the respondent officials that the CIO did not want to see the plant shut down again ; n and volunteered information that the CIO "stood ready to keep the plant in operation if it could just be done." At the same time, the CIO sought assurance from the Respondent that all CIO unit members who might be assigned to jobs formerly performed by the IAM members would receive permanent assignments to such jobs. The CIO group 44 Under date of March 31, McBride wrote Conroy as follows : DEAR Sia : This is to advise you that the employees of your company working in and around the roll shops have become members of United Steelworkers of America. It is their desire to be represented, by United Steelworkers of America for the purpose of collective bargaining, upon expiration of the present agreement covering them. Upon request , we will furnish proof of this change made by the employees referred to above . It is requested that your company not bargain in the future with any union other than the United Steelworkers of America that might claim to represent them. (Signature) [ Emphasis supplied.] s The record discloses that the CIO had recognized the IAM picket line during the March 15, 1946 , to August 12, 1946, strike. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received such assurance from the Respondent's officials, who stated that if it "made any such assignment or change of personnel, such change would be on a permanent basis." During one of the meetings of the Respondent and the CIO, held between March 25 and 31, McBride informed the Respondent that certain car repairers and welders included in the IAM.unit had come to him and requested membership in the CIO ; and inquired as to what the seniority status of the car repairers and welders would be if they returned to work. Conroy advised McBride, in effect, that inasmuch as the men had not returned within the time designated in the March 25 telegrams, the Respondent "would consider their employment, if they came back at all," as new employees. In this connection, Conroy testified : Q. Did Mr. McBride suggest that they would be restored to full seniority? A. No, Mr. McBride said this. He thought they should get their full seniority back. I told him I did not feel we did not know the legal status of that, but we did feel we might be accused of collusion with the Steel- workers if they granted them full seniority right, that we were aiding the Steelworkers in raiding the Machinists' Union. McBride discussed the work status of certain members of the IAM unit who had returned to work with the Respondent's officials. He testified : The WITNESS. I would like to make this clear, if I may. We did discuss the permanency of the situation when the roll grinders, roll turners, crane men and shot blasters returned to work. We wanted to secure assurance from the company that these men who had returned to work in defiance of the Machinists' Union would be treated as permanent employees, and had discussed the permanency of these people at the time they returned to work. By Mr. MOLLER : Q. What did the company say? A. That they should be permanent employees and returned as such. The record discloses that a group of roll grinders and roll turners, including employee Edward F. Skinner, contacted McBride, before returning to work, on Tuesday, March 25, and asked McBride "if there was any chance of us [them] joining the CIO and going back to work." McBride stated that it was up to them "if they wanted to come in." In this connection Skinner, on cross-examina- tion by counsel for the CIO, testified : By Mr. MARTIN : Q. If I understand you correctly, Mr. Skinner, in connection with the other men who were roll turners and roll grinders, you signed CIO Steelworkers cards the day before you went back to work at the mill. A. Yes, sir. Q. Have you maintained your membership in the Steelworkers since that time? A. I have. On cross-examination by the General Counsel, Skinner further testified : By Mr. MoLLER : Q. When you got that telegram, what did you think? A. I thought my job was done because I could not go to work that evening. Q. You felt if you did not go back to work right away in response to that telegram you were fired? GRANITE CITY STEEL COMPANY 925 A. I was thinking that was the way it meant. Q. Was that the nature of the discussion you had with the rest of the roll grinders? A. That we would lose our jobs if we did not come back to work. From the above, it is apparent that while the CIO was interested in keeping the plant in operation, it also welcomed IAM unit members into, its organization; .and immediately sought to and did bargain as to their job permanency with the Respondent. While the CIO may have claimed the right to act for this group of returned employees, such claim was and is without merit since the IAM employees on strike had not lost their status as employees, or their majority within the appro- priate unit. The IAII was still the representative of all the employees in the 1All unit, including those employees who signed authorization cards and re- turned to work before the deadline set in the March 25 telegrams. . The record discloses that all employees in the IAM unit who returned to work both before the deadlines set in connection with both the March 24 and April 21 strikes and all those who returned to work after such deadlines but as "new employees" joined the CIO either before returning to work or within a day or two thereafter. It is undisputed that it was common knowledge among the Respond- ent's employees that all JAM unit members who did not return to work within the time limits set were hired as new employees. From the foregoing and the record, it appears that commencing on March 25, 1947, and continuing until on or about June 6, 1947, the Respondent negotiated with the CIO concerning job classifications in the IAM unit; had assured the CIO that CIO members assigned to work formerly performed by IAM unit mem- bers would be given such assignment on a permanent basis; that the Respondent and the CIO discussed the seniority status of car repairers and welders included in the IAM unit, and while the Respondent declined to grant seniority status at the time these men returned to work, it did agree that the matter might be discussed later; and the Respondent did discuss with the CIO as to the perma- nency of the employment status of the roll grinders, roll turners, crane men, and shot blasters and was advised by. the Respondent that such groups would be treated as permanent employees, and returned them to work as such. The record indicates, and the undersigned finds, that at the time the Re- spondent discussed the status of the returning IAM employees with the CIO, the latter did not represent the employees in the unit in which such employees were employed. By the acts above described, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and of Section 7 of the amended Act. D. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all machinists, machinist apprentices, machinist helpers, electric and acetylene welders, cutters or burners, steel-clad welders, tool- room attendants, roll grinders, roll turners, shear blade or knife grinders, shot blasters, car repairmen, ear repairmen helpers, crane men in the macbine.shop and roll shop, and automobile mechanics, excluding foremen and all other super- visory employees, constitutes a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act and of the ainended Act. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent's answer denies the appropriateness of the unit as above described. The record discloses that the Respondent and the JAM have had contractual relations consistently since 1923. When questioned concerning the above-de- scribed unit, a description of which was called to his attention, and read by him, Conroy testified : Q. Is that a description of the bargaining unit which the L111 repre- sented at your plant prior to the April 21 strike? A. I would like to check it over. I think it is, to the best of my belief. I would like to check it over with Nichols here." Following a short recess to permit such a check, Conroy further testified : By Mr. MonraR: Q. What is your answer? A. This list is correct, with the exception there were a couple of welding jobs in what I call the hot strip department which was under the jurisdiction of the United Steelworkers of America. Q. That unit is the unit which has been represented for this period of years immediately prior to April 21, 1947? A. I do not know how many of those years they were all included. But the years I signed the contract with the Machinists they were a part of the unit. Q. How long was that? A. I would say around ten or twelve years 47 Respondent and the CIO contend, in substance, that the above-described unit is no longer the appropriate unit, since it has, due to the alleged loss of status as employees by the IAM members, been replaced by a "reconstituted" unit, made up of "former" IAM members who had voluntarily relinquished membership in the IAM, joined the CIO, and returned to work ; by transfers of CIO unit members already employed in the plant ; and by new hires from outside the plant, who had designated the CIO as their bargaining agent. Since as has been found above, the IAM unit members who went on strike did not lose their status as employees, and since as is found below the IAM continued to represent a majority in the unit alleged in the complaint to be appropriate, the contention of the Respondent and the CIO that the "reconstituted unit" is appropriate is without merit. The undersigned accordingly finds that all machinists, machinist apprentices, machinist helpers, electric and acetylene welders, cutters or burners, steel-clad welders, toolroom attendants, roll grinders, roll turners, shear blade or knife grinders, shot blasters, car repairmen, car repairmen helpers, crane men in the machine shop and roll shop, and automobile mechanics. excluding foremen and all other supervisory employees, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining with Respondent as to rates of pay, wages, hours of employment, and other conditions of employment. "Nichols was not further identified . in the record. 47 The Respondent's pay roll as of March 24, 1947. covering members of the IAM unit disclosed , in numbers and classification , of such employees , as follows : 18 operators ; 20 operators and repairmen ; 38 repairmen ; 4 locomotive repairmen ; 3 automotive repairmen ; 2 shear blade grinders ; 8 apprentices ; 34 machinist helpers ; 46 welders, cutters , burners ; 12 roll grinders ; 2 shot blasters ; 4 crane men ; 4 car repairmen, or a grand total of 195 employees. GRANITE CITY STEEL COMPANY 927 2. Representation by the TAM of a majority in the appropriate unit The complaint alleges that on and before June 6, 1.947, a majority of the em- ployees in said above-described unit had designated the TAM as their bargaining representative; that by virtue of Section 9 (a) of the Act and of the amended Act, the IAM was, on and before that date and has been since that date, the exclusive representative of all the employees in the unit for the purposes of collec- tive bargaining with respect to rates of pay, hours of employment, and other conditions of employment. The Respondent's answer denied the foregoing allegations and alleges that on or about May 29, 1947, a majority of the employees of the unit had designated the CIO as such bargaining agent. The Respondent and the CIO contend that the latter's majority is made up as follows : Employees transferred from CIO employees already employed else- where in the plant--------------------------------------------- 68 TAM members who joined the-CIO and returned to work by, June 6, 1947 ---------------------------------------------------------- 25 New employees hired between April 21 and June 6, 1947------------- 9 Total ----------------------------------------------------- 102 The undersigned has found hereinabove • that the 22 employees named in Schedule A and a total of 117 out of the 123 " employees named in Schedule C, or a total of 139 employees had retained their status as employees of the Respond- ent, and thus their membership in the unit above found to be appropriate. Since the 25 employees who returned to work between March 24 and June 6 were em- ployed in the unit, the TAM, as the representative of a majority, also represented these 25 employees, notwithstanding they had joined the CIO. Conceding, arguendo, that the 68 employees transferred from CIO production and mainte- nance units to the TAM unit, together with the 9 newly hired employees, were properly included in the JAM unit, the total of these 2 groups would give the CIO but 77 members in such unit. and the TAM 157 members. However, under the circumstances herein found, the CIO does not represent any of the employees in the appropriate unit above found. The undersigned accordingly finds that on June 6, 1947, and all material times thereafter, the TAM was the duly designated representative of a majority of the employees in the unit heretofore found appropriate. 3. The refusal to bargain collectively On May 29, 1947, Ryan, as business representative of the TAM, by registered letter wrote Conroy as follows : DEAR SIR: This is to officially inform you that the International Associa- tion of Machinists, District No. 9, wishes to amend and renew the agreement now in effect between the Granite City Steel Company, Granite City, Illinois, and our organization. This letter shall not be interpreted as a desire to cancel the existing agree= ment, but shall be understood that such changes are to be effective as of July 1, 1947. (Signature) "The seven foremen named in footnote 9 were not included in the appropriate unit. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 6, 1947, Conroy, also by registered letter, wrote Ryan as follows : DEAR SIR: We acknowledge receipt of your registered letter dated May 29, 1947, in which you advise that the Union which you represent desires "to amend and renew the agreement now in effect" with this company. You apparently are under a misapprehension concerning this company's present situation. By virtue of the breach of the contract of July 1, 1946, by your Union and by former employees of this Company represented by your Union, we have been compelled to replace such former employees. You are thoroughly familiar with the circumstances surrounding the violation of the contract. We have recently executed a collective bargaining agreement with the United Steelworkers of America, C. I. 0.. as bargaining agent for our present employees who constitute the unit formerly represented by your Union. In view of this it is our impression that your Union is no longer a bargain- ing agent for any of the Company's employees. This being true, no purpose can be served by our meeting with representatives of your Union. (Signature) From the above correspondence it is clear that the JAM duly requested the Respondent to bargain with it on May 29, 1.947; and that on June 6, 1947, the Respondent refused to bargain with the IADI. It is so found. Upon the above and the entire record, the undersigned concludes and finds that the Respondent, Granite City Steel Company, on June 6, 1947, and at all times thereafter, refused to bargain collectively with the IAif as the exclusive representative of their employees in an appropriate unit, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act and in Section 7 of thq amended Act. 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 of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac, tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent on June 6, 1947, and at all times there- after, refused to bargain collectively with the IAM as the exclusive representa- tive of its employees in an appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with the IAM. It has been further found that the Respondent on March 25, 1947, discrim- inatorily discharged those employees listed in Schedules A and B ; and on or about April 22, 1947, the Respondent discriminatorily discharged those em- ployees named in Schedules C and D ; as to the employees listed in Schedules A and C, none of whom have returned to work, it will be recommended that the Respondent offer them full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and that it make each of them whole for any'loss GRANITE CITY STEEL COMPANY 929 of pay he may have suffered by reason of the discrimination practiced against him by payment to him of a sum of money equivalent to that which he would normally have earned as wages from the date of the discrimination practiced against him to the date of offer of reinstatement, less his net earnings during such period ; and that as to the employees listed in Schedules B and D, each of whom was reinstated by the Respondent following their respective discharges, but were hired as new employees with loss of seniority rights, it will be recom- mended that the Respondent immediately restore to them and each of them all seniority rights and privileges each enjoyed at the time of the discrimi- natory discharge and make each whole for any loss of pay he may have suffered by reason of the discrimination practiced against him by payment to him of a sum of money equivalent to that which he would have normally earned as wages, from the date of such discharge to the date he returned to work, less his net earnings during such period. It is recommended that reinstatement of the.employees named in Schedules A and C be effected in the following manner: That the Respondent be required to displace employees by transfer or otherwise who succeeded to the former' positions of-any of the employees named in Schedules A and C. Further, all employees hired after March 25, 1947, other than those named in Schedules B and D, for the same or substantially equivalent positions shall, if necessary to provide employment to the persons to be offered reinstatement, be dismised. If, even after this is done, there is not, by reason of a reduction in force of em- ployees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among those remaining employees, in accordance with the Respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities following a system of seniority to such extent as has heretofore been applied in the conduct of the Respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a prefer- ential hiring list prepared in accordance with the principles set forth in the previ- ous sentence and shall thereafter, in accordance with such list, be reemployed in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work. It has been further found that the Respondent unlawfully assisted the CIO and interfered with the employees in the JAM unit by recognizing and entering into a union-shop contract with the CIO as exclusive representative of the em- ployees in the JAM unit. The undersigned will, accordingly, recommend that the Respondent cease and desist from recognizing the CIO as the exclusive representative of the JAM unit employees unless and until it has been certified as such by the Board. Inasmuch as the contract of April 29, 1947, perpetuates the Respondent's unlawful assistance to the CIO and precludes the JAM from exercising its rights as bargaining representative of the employees in such JAM unit, it will be fur- ther recommended that the Respondent cease and desist from giving effect to that contract or to any extension or supplement thereof, but only insofar as it affects the JAM unit employees. Nothing herein, however, shall be construed as requiring .the Respondent to vary any wage, hour, seniority or other substan- tive features of its relations with the JAM unit employees themselves, which Respondent has established in the performance of this contract, or to prejudice S77350-50-vol. S7-Go 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the assertion of those employees of any rights they may have under such agree- ment. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The International Association of Machinists, District No. 9, and United Steelworkers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act and of the amended Act. 2. A 'unit consisting of all machinists, machinist apprentices, machinist help- ers, electric and acetylene welders, cutters or burners, steel-clad welders, tool- room attendants, roll grinders, roll turners, shear blade or knife grinders, shot blasters, car repairmen, car repairmen helpers, crane men in the machine shop and roll shop, and automobile mechanics, excluding foremen and all other super- visory employees, constitute a unit appropriate for the purposes of collective ,bargaining within the meaning of Section 9 (b) of the Act and of the amended Act. 3. International Association of Machinists, District No. 9, was on June 6, 1947, and at all material times thereafter has been, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act and of the amended Act. 4. By refusing on June 6, 1947, and at all times thereafter, to bargain col- lectively with International Association of Machinists, District No. 9, as the exclusive representative of all its employees in the appropriate unit, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act.and 8 (a) (5) of the amended Act. 5. By discriminating in regard to the hire and tenure of employment of those employees named in Schedules A, B, C, and D, all as found above, thereby discouraging membership in International Association of Machinists, District No. 9, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, and 8 (a) (3) of the amended Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and of the amended Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act and 8 (a) (1) of the amended Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act and of the amended Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondent, Granite City Steel Company, Granite City, Illinois , its officers , agents, suc- cessors , and assigns , shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Association of Ma- chinists, District No. 9, as the exclusive representative of all machinists, ma- chinist apprentices, machinist helpers, electric and acetylene welders, cutters or GRANITE CITY STEEL COMPANY 931 'burners, steel-clad welders, toolroom attendants, roll grinders, roll turners, shear blade or knife grinders, shot blasters, car repairmen, car repairmen helpers, crane men in the machine shop and roll shop, and automobile mechanics, excluding foremen and all other supervisory employees, with respect to rates of pay, wages, hours and conditions of employment; (b) Recognizing United Steelworkers of America, CIO, as the exclusive repre- sentative of any of the employees engaged or employed in the above-described unit at its Granite City, Illinois, plant, for the purposes of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as the exclusive representative of such employees; (c) Giving effect to its contract dated May 29, 1947, with United Steelworkers of America, CIO, or to any extension, renewal, modification, or supplement there- of, but only as it affects the employees engaged in the above-described unit, unless and until said organization shall have been certified by the Board as the representative of the employees engaged in the above-described unit; (d) Discouraging membership in the International Association of Machinists, District No. 9, by discharging and refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of employment ; (e) In any other manner interfering with, restraining; or coercing its employees in the exercise of the rights of self-organization, to form labor organ- izations, to join or assist International Association of Machinists, District No. 9, 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 as guaranteed in Section 7 of the Act and the amended Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Upon request bargain collectively with International Association of Machinists, District No. 9, as the exclusive representative of all its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Offer to those employees named in Schedules A and C immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (c) Make whole those employees named in Schedules A, B, C, and D, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them in the manner provided in Section V entitled "The remedy" ; (d) Withdraw and withhold all recognition from the United Steelworkers of America, CIO, as the representative of any of its employees engaged in the above-described unit at its plant in Granite City, Illinois, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or any other conditions of employment, unless and until said organization shall have been certified by the National Labor Relations Board as such representative ; (e) Post at the Respondent's plant at Granite City, Illinois, copies of the notice attached hereto and marked Appendix. Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall , after being signed by the Respondent's representative, be posted by the Respondent and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices. to employees are customarily posted. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by other material ; (f) Notify the Regional Director for the Fourteenth Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps Respondent has taken to comply therewith. As provided in Section 203.40 of the Rules and Regulations of the National Labor Relations Board, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, 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 ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately 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. Statements of exceptions and briefs shall desig- nate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. 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 203.46, 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 oBard and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 21st day of April 1949. PETER F. WARD, Trial Examiner. SCHEDULE A Carl Poelzl Frank Koban Ervin Schirmer John Moser _ Clinton Wolfbrandt Adolph Keck Ira Valentine Edward Glozik Frank Greenwald George F. Bayer Otto Fischer Clarence Bohnenstiehl Fred Widicus John Nenninger George Wetzel Fred Griffin John Schwarz Henry Cooley Floyd Keller Thomas Williams Louis Wissler John Urschel SCHEDULE E William Wachter William Baldasare John Patrich Martin Rauer Fred Fett Harrison Parks Charles Veach Jack Montana William B. Warren GRANITE CITY STEEL COMPANY SCHEDULE C 933 Gus Stoecker Wm. E. Farmer Herman Mannle Roy B. Jones Joe Sebescak Richard Janning Cleo Eller Steve Soltich Walter Slaby Fred Flaugher Edw. Murphy Adam Ebrecht Oscar Poole Joe Maserang Elmer Keltner Russell Stottler John Davis Robert Polley Steve Christian Steve Blum Jack N. Miller George Vrabel Joe Grob Gilbert Winning Walter MeGarrahan David Huddleston James Copeland Eugene Rupp Joe Krusec John E. Wardlow Wm. Knowlton Curtis Shuff Resse Howells Joe Ford Albert Miner Riggs Weston Milton Worthen Wm. T. Reynolds Leo Buckingham John Nieman Woodrow Timmons Geo. Haile Ransome House Earl W. Suhre Lawrence Stark Eugene O'Rourke Robert Orr Paul Malench Adam Galas Joe Schwertmann Albert Bertels Louis Stuckmeyer Nick. Wargin Walter Stephens Harry D. Clark Roy T. Harris Thos. Smith Sidney Verble Cecil Green Frank Konarcik Wm. B. Raede Cecil Bauder Frank Kusior Wm. E. McNeill Fred A. Biggs Andrew Saksa Joe R. Bennett Oscar Turner John Falk John K. Newman Howard Eggley Geo. Schillinger Maurice Robbins Bryan O'Neill Carl McCormack John T. Howells John Clements Geo. Gergeceff Jas. F. Hoover Wm. Lang Theo. Swigert Joe Paull Wm. D. Line Grant Wilson Walter Keller Harold McConnell Henry Yetze Ward Montgomery Wm. H. Henry Ray Harrelson Levi Weston Carl W. Jackson Charles Hiltz Geo. W. Marshall Walter Gillen Orville Warren Rudy Palovchik Harry R. Overbee Homer Anderson Frank Ponsot Norman Baeser Andy Walt Theo. Baryiske John Kozak Ted Hiltz Ernest Carlson Joe Kubos William Redman Adam Tobiasz Kenneth Leaton Edw. W. Hartman Harold Neumeister Lawrence Unfried Earl It. Benoit Julius ZurWelle Carl Hartwig Huey Bell Lloyd Johnson Nicholas Turck Walter Boneau Frank F. Miller Chas. Kleckamp Frank Milnarec SCHEDULE D Roy Smock Harry Boger Joe Bolf Rudolph Haldeman Hardin Haynes August Sacadat Lawrence Oberdieck Paul Beasley Robert Bunker Thomas Hastings Clifford Williams Ray Hawks Joe Varge Elmon Whitsell Glenn Morgan Clayton Pool Oscar Erickson Willie Haynes John Hart Asa Highsmith Bert Ellis Deate Slaton Ora Moss F. B. Davis 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX 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: 1. 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 INTERNATIONAL ASSOCIATION OF MACHINISTS,. DISTRICT No. 9, 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. 2. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without pre- judice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay as result of the discrimination in the manner directed by the Trial Examiner in his Intermediate Report under the Section entitled "The remedy," a copy of which is on file at the office of the undersigned and may be inspected by interested persons during office hours. Employees referred to next above are: Carl Poelzl Frank Koban John Urschel Louis Wissler John Moser Clinton Wolfbrandt Ervin Schirmer Ira Valentine Edward G)czik Adolph Keck George F. Bayer Otto Fischer Frank Greenwald Fred Wiclicus John Henninger Clarence Bohnenstiehl Fred Griffin :fohn Schwarz George Wetzel Floyd Keller Thomas Williams Henry Cooley Gus Stoecker Adam Tobiasz Walter Gillen Roy B. Jones Harold Neumeister Harry R. Overbee Cleo Eller Julius ZurWelle Norman Baeser Fred Flaugher Lloyd Johnson John Kozak Oscar Poole Frank F. Miller Joe Kubos Russell Stottler Wm. E. Farmer Kenneth Leaton Steve Christian Joe Sebescak Lawrence Unfried George Vrabel Steve Solticn Carl Hartwig Walter McGarrahan Edw. Murphy Nicholas Turck Eugene Rupp Joe Maserang Chas. Kleckamp Win. Knowlton John Davis Herman Mannle Joe Ford Steve Blum Richard Janning Milton Worthen Joe Grob Walter Slaby John Nieman David Huddleston Adam Ebrecht Iiansome House Joe Kursec Ebner Keltner Eugene O'Rourke Curtis Shuff Robert Polley Adam Galas Albert Miner Jack N. Miller Louis Stuckrneyer Wm. T. Reynolds Gilbert Winning Harry D. Clark Woodrow Timmons James Copeland Sidney Verble Earl W. Suhre John E. Wardlow Wm. B. Raede Robert Orr Resse Howells Wm. E. McNeill Joe Scbwertmann GRANITE CITY STEEL COMPANY 935 Riggs Weston Joe R. Bennett Roy T. Harris Leo Buckingham John K. Newman Cecil Green Geo. Haile Maurice Robbins Cecil Bauder Lawrence Stark John T. Howells Fred A. Biggs Paul Malench Jas. F. Hoover Oscar Turner Albert Bertels Joe Pauli Howard Eggley Walter Stephens Walter Keller Bryan O'Neill Thos. Smith Ward Montgomery John Clements Frank Konarcik Levi Weston Wm. Lang Frank Kusior Geo. W. Marshall Win. D. Line Andrew Saksa Rudy Palovchik Harold McConnell John Falk Frank Ponsot Wm. H. Henry Geo. Schillinger Theo. Barylske Carl W. Jackson Carl McCormack Ernest Carlson Orville Warren Geo. Gergeceff Theo. Swigert Homer Anderson Edw. W. Hartman Grant Wilson Andy Walt Earl R. Benoit Henry Yetze Ted Hiltz Huey Bell Ray Harrelson William Redman Walter Boneau Charles Hiltz Frank Milnarec Nick Wargin 3. WE WILL MAKE whole the employees named below for the loss of pay suffered as result of the discrimination in the manner directed by the Trial Examiner in his Intermediate Report under the section entitled "The remedy." Employees referred to next above are : William Wachter William Baldasare John Patrich Martin Rauer Fred Felt Harrison Parks Charles Veach Jack Montana William B. Warren Roy Smock Harry Boger Joe Bolf Rudolph Haldeman Hardin I-Jaynes August Sacadat Lawrence Oberdieck Paul Beasley Robert Bunker Thomas Hastings Clifford Williams Ray. Hawks Joe Varge Elmon Whitsell Glenn Morgan Clayton Pool Oscar Erickson Willie Haynes John Hart Asa Highsmith Bert Ellis Deate Slaton Ora Moss F. B. Davis 4. WE WILL BARGAIN collectively on request with INTERNATIONAL ASSOCIA- TION or MACHINISTS, DISTRICT No. 9, as the exclusive representative of all employees of the bargaining unit described herein, with respect to rates of pay, hours of employment, all other conditions of employment, and if an understanding is reached, embody such understanding. in a signed agreement. The bargaining unit is: All machinists, machinist apprentices, machinist helpers, electric and acetylene welders, cutters or burners, steel-clad welders, toolroom at- tendants, roll grinders, roll turners, shear blade-or knife grinders, shot blasters, car repairmen, car repairmen helpers, crane men in the ma- chine shop and roll shop, and automobile mechanics, excluding foremen and all other supervisory employees. All our employees are free to be and remain members of the INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9, or any other labor organization. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will not discriminate in regard to the hire and tenure of employment or any term or condition of employment against any employees because of membership in or activity on behalf of said labor organization. GitANriE CrrY STEEL COMPANY, Employer. By ----------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.