Keystone Steel & Wire Co.

In the Matter of KEYSTONE STEEL & WIRE COMPANY , A CORPORATION and UNITED FARM EQUIPMENT & METAL WORKERS OF AMERICA, C 1. 0. Case No. 13-C-2069.-Decided June 22, 1945 Mr. Leon Rosell, for the Board. Baer, Clendenin & Davis, by Messrs, Theodore C. Baer, Arleigh Davis, and Shelton F. McGrath, of Peoria, Ill., for the respondent. Mr. E. V. Champion, of Peoria, Ill., for the Alliance. Meyers & Meyers, by Mr. Ben Meyers, of Chicago, Ill., for the Union Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a third amended charge duly filed . on April 8, 1944,' by United Farm Equipment & Metal Workers of America, affiliated with the Con- gress of Industrial Organizations , herein called the Union , the National Labor Relations Board, herein called the Board , by its Regional Director for the Thirteenth Region ( Chicago, Illinois ), issued its complaint on April 8, 1944, against Keystone Steel & Wire Company, Bartonville, Illi- nois, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act. 49 Stat . 449, herein called the Act. Copies of the complaint and the third amended charge, together with notice of hearing thereon, were duly served upon the respondent , the Union, and Independent Steel ,Workers' Alliance, herein called the Alliance , a labor organization alleged in the complaint to be existing in violatoin of the Act. With respect to the unfair labor practices , the complaint, as amended at the hearing , alleged in substance ( 1) that the respondent dominated, 1 The original charge was duly filed on February 15, 1943, the first amended charge on July 13, 1943, the second amended charge on July 14, 1943 62N L.R B,No 91 683 084 DECISIONS*OF NATIONAL LABOR RELATIONS BOARD interfered with the administration of, and contributed support to, the Key- stone Employees Association, a labor organization herein called the K. E. A., and its successor the Alliance; (2) that the respondent demoted and sub- sequently discharged eight named employees because of their membership in the Union and activity against he Alliance; and (3) that by the fore- going acts, by urging and warning its employees to join the Alliance, by advising and threatening its employees not to join the Union, by inter- rogating its employees about their union membership, by disparaging the Union, by according the Alliance exclusive recognition without first secur- ing adequate proof of its majority status and subsequently signing a writ- ten exclusive bargaining'agreement with the Alliance, by promulgating and discriminatorily invoking and enforcing a rule prohibiting union and other types of solicitation on company time and property,` and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 20, 1944, the respondent filed an answer, and on May 11, 1944, an amended answer, denying the unfair labor practices and asserting that the eight individuals named in the complaint were discharged for cause. The amended answer also alleged that the Board was without jurisdiction to hear and determine the issues regarding the legality of the Alliance and its contract of February 11, 1943, with the respondent, on the ground that the proceedings herein were not brought within the time prescribed by the rider attached to the Feedral Security Appropriation Act of 1944, Chap- ter 221, Public Law 135, 78th Congress.' Thereafter, the Alliance filed an answer, and an amended answer, denying the allegation of the complaint with respect to its domination and its connection with the K. E. A. and chal- lenging the jurisdiction of the Board because of the limitation contained in the above-mentioned Appropriation Act rider. Pursuant to notice, a hearing was held on various days between May 15 and June 30, 1944, at Peoria, Illinois, before Howard Myers, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing, the Alliance moved to intervene. The motion was granted without objection. The Board, the respondent, the Union, and the Alliance were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence of the Board's case, counsel for the respondent moved to 2 Pursuant to a fourth amended charge filed by the Union during the hearing, the attorney for the Board moved to amend the complaint to include the allegation pertaining to the respondent's no-solicitation rule The motion was granted by the Trial Examiner over objections by the respond- ent and the Alliance The respondent then amended its answer to cover this amendment to the complaint. 3 This Appropriation Act prohibited the Board , during the fiscal year 1943 -44, from using funds "in connection with a complaint case arising over an agreement between management and labor which has been in existence for three months or longer without complaint being filed ... . KEYSTONE STEEL & WIRE COMPANY 685 dismiss the complaint for lack of proof. The motion was denied. Counsel for the respondent then moved to dismiss the complaint, insofar as it in- volved the Alliance, on the ground that the charge on which the complaint was issued had not been timely filed, within the meaning of the rider in 1943-44 Appropriation Act. A similar motion was made by the Alliance. The Trial Examiner denied both motions.' At the close of the hearing, the respondent and the Alliance renewed these motions and further moved to dismiss the complaint for lack of proof. The Trial Examiner reserved de- cision on these motions and later denied them in his Intermediate Report. He granted without objection a motion by counsel for the Board to con- form the pleadings to the proof with respect to names, dates, and other minor recitals. During the course of the hearing, the Trial Examiner ruled on other motions and objections to the admission of evidence. On about September 18, 1944, after the close of the hearing, the respondent filed with the Trial Examiner a written motion to introduce in evidence a copy of a certain letter from the respondent to the Union, dated December 4, 1942, copies of which were duly served on the other parties. By order dated Sep- tember 19, 1944, the Trial Examiner granted the motion and received in evidence said letter and made it a part of the record herein. The Board has reviewed all the rulings of the Trial Examiner and finds no prejudicial error. The rulings are hereby affirmed. On September 23, 1944, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7), but not within the meaning of Section 8 (3), of the Act. He recommended that the respondent cease and desist from its unfair labor practices and that it disestablish 'and withdraw all recognition from the Alliance He recommended, further, that the colni- plaint be dismissed insofar as it alleges that the eight individuals named therein were discriminatorily demoted and discharged. Exceptions to the Intermediate Report and supporting briefs were filed by the respondent, the Alliance, the Union, and the attorney for the Board. Pursuant to notice, a hearing was held before the Board at Washington, D. C., on April 12, 1945, for the purposes of oral aNument. The respond- ent, the Union, and the Alliance were represented by counsel and par- ticipated in the argument. The Board has considered the exceptions to the Intermediate Report, the briefs filed, and the contentions advanced at the oral argument before the Board and, insofar as the exceptions are incon- ° Aside from the fact that the evidence fails to support said motions , this question is now moot since the limitations in the current Appropriation Act rider are expressly therein made inapplicable to complaint cases involving "agreements with labor organizations formed in violation of [Section 8 (2) of the Act]," Sec also Opinion of the Comptroller General, dated October 14 , 1944, B-44156. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Keystone Steel & Wire Company, an Illinois corporation, owns and operates a plant, consisting of a steel mill and a wire mill, at Bartonville, Illinois, where it is engaged in the manufacture, sale, and distribution of semi-finished and finished steel products. The respondent's annual pur- chases of raw materials are in excess of $4,000,000, more than 50 percent of which is purchased and shipped to its plant from points outside the State of Illinois. During 1943, the respondent's sales of finished products amount- ed to more than $13,000,000, more than 50 percent of which was shipped to points outside the State of Illinois. The respondent does not contest the fact, and we find, that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Farm Equipment & Metal Workers of America is a labor organization, affiliated with the Congress of Industrial Organizations, ad- mitting to membership employees of the respondent. Independent Steel Workers' Alliance is an unaffiliated labor organiza- tion admitting to membership employees of the respondent Keystone Employees' Association was an unaffiliated labor organization admitting. to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Dovnination and support of the K. E. A. and the Alliance, interference, restraint, and coercion 1. Formation and history of the K. E. A So far as it appears, there was no organizing activity among the re- spondent's employees prior to 1933. However, in the fall of that year, W. C. Buchanan, then an official of the respondent, urged its employees "to form a union of their own [because ] they could get along with the company a lot better than if they had an outside organization in the plant." Acting upon this suggestion, a group of employees met in the plant and decided to form an inside union which became known as the K. E A. Tem- porary officers were selected and a membership campaign was conducted in the plant during working hours. Thereafter, the K. E. A functioned under an organic structure bearing the following preliminary caption KEYSTONE STEEL & WIRE COMIPANV 687 Plan of KEYSTONE Employees' Association As approved by the Temporary Committees elected by the Em- ployees from their respective Departments and presented to the Management of the Company which has been approved by them.' The "plan" of the K. E. A. was a species of employee representation plans which sprang up throughout the country following the passage of the National Industry Recovery Act The K. E. A. functioned through depart- mental representatives elected by the employees of the various depart- ments. The General Committee, consisting of the elected departmental representatives, was the organization's governing body and, among other things, elected its officers. Explicit provision was made in the "plan" for the creation of "Joint Committees," consisting of the "Committee of the Employees Representatives with the addition of the Company's Represen- tative named by the Management." The Joint Committees were empow- ered to select their own officers and arrange their own procedure and meet, among other things, for purposes of collective bargaining Procedural amendments were to be adopted by "two-thirds vote ... of the joint Com- mittee on Rules, or by concurrent majority vote of the Employees' Repre- sentatives and of the Representatives of the Management at the annual conference " Na provision was made in the "plan" for payment of mem- bership dues or initiation fees, and none were collected. In addition to suggesting the formation of the K E. A. and participating in its administration, it appears that the respondent contributed financial and other support to the K E A. Employee representatives of the K. E. A., as well as other employees, were paid by the respondent for time spent in attending various K. E. A. committee and other meetings. All such meet- ings and other business of the K E. A were conducted in the plant Office space and a meeting room in the plant were furnished to the K E A. by the respondent without charge, and members were solicited by the K. E. A in the plant during working hours. Moreover, the respondent, in 1934, out- fitted the K E. A. baseball team and, in August 1935, furnished materials for a ball field and grandstand, which were constructed by the K E A. on the respondent's property. The respondent permitted the K. E A. to use these facilities without cost and to charge admissions for the games spon- sored by the K. E. A. The respondent granted the confectionery concession at the ball park to an employee on the condition that he remit 40 percent of the profits to the K E. A. In addition, the respondent permitted the 5 In 1935, the K F. A adopted a constitution and bvlae s which embodied substantially all the features of the "plan " 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD K. E. A,. to raise funds during working hours by selling tickets for dances and other events. All funds received by the K. E. A. from the above sources were deposited to its account in a local bank. The record shows that even after the effective date of the Act, July 5, 1935, the respondent continued to dominate and support the K. E. A , as set forth above, and also continued to recognize and bargain with it as the representative of the respondent's employees 2. Abandonment of the K. E A.; formation and recognition of the Alliance Within several days after April 12, 1937, the date on which the Supreme Court of the United States upheld the constitutionality of the Act, D. P. Sommer, the respondent's vice president and general superintendent, sum- moned to his office the officers of the K. E. A.' and some of its employee representatives and informed them that the Act had made the K. E. A. "un- lawful" and that therefore the respondent could not continue to recognize it as the exclusive bargaining representative of the employees e The re- spondent made no public announcement of this decision or otherwise di- rectly notified its employees of any change in its labor relations policy. Following the meeting with Sommer, a meeting of the K. E. A.'s governing body, the General Committee, was held in the plant.' At this meeting Hogue, the K. E. A president, informed the committeemen of the respond- ent's decision to discontinue recognition of the K. E. A. because of its illegality. After some discussion as to what the General Committee should do under the circumstances, it was decided at the meeeting to abandon the K. E. A. and to form another unaffiliated organization under the name of the Alliance. The same employees who had served as the last officers and com- mitteemen of the K. E. A. became the organizing committee of the Alliance and immediately began an intense membership campaign at the plant. With- out objection by the respondent, members of the organizing committee openly solicited employees for the Alliance in the plant during working hours i' 0 No unfair labor practice findings herein are made on events which occurred prior to the effective date of the Act. However, such events are relevant as background evidence and are indicative of the "employer 's attitude toward unions " See N L R B v Link-Belt, 311 U S 584; N L R B v Pennsylvania Greyhound Lines, Inc, et al, 303 U S 261; N L R B v Pacific Greyhound Lines, Inc., 303 U S. 272; N L. R B v Newport News Shipbuilding & Dry Dock Co., 308 U S 241. 7 At that time and for several years prior thereto, K E A officers were Bruce Hogue, president; Paul Cantrall , vice president , Earl Lowman , secretary-treasurer , and James Mahannah , assistant secretary 8 The exact date of this meeting between the respondent and the K E A. officers is not clear from the record. The respondent contends that it occurred in tthe latter part of March 1937. However, we agree with the Trial Examiner , and we find, that the credible evidence establishes that the meeting took place sometime between April 12 and 16, 1937. 9It is not clear how many members of the committee attended this meeting. 10 There is testimony in the record , which we credit , as did the Trial Examiner , that members of the Alliance organizing committee solicited "in the foreman 's office any places they would [sic] contact a fellow. It was general. It happened every day for a while." KEYSTONE STEEL & WIRE COMPANY 689 On April 16, 1937, the Alliance organizing committee met and appoint- ed a committee to prepare' a constitution and bylaws for the Alliance." On April 2], the organizing committee held another meeting which was attended by 61 members of the committee and an undisclosed number of "visitors." At this meeting, Bruce Hogue, Earl Lowman, and James Ma- hannah, who had served as the last officers of the K. E. A., were appointed temporary officers of the Alliance. Hogue addressed the meeting and stated, among other things,, that the organizing committee had been "under a severe handicap by not being able to tell the men what we are going to do" and that "many of you do not know as yet what you have a right to know about what is to be done." At Hogue's suggestion, the constitution and part of the bylaws, which were drafted by the previously designated com- mittee, were read and adopted at this meeting of the organizing committee. The Alliance constitution and bylaws bear a striking resemblance to the organic structure of the K. E. A. For example, both contain identical lan- guage or similar ideas in their respective sections relating to the composi- tion and function'of standing committees, duties of officers, election of de- partmental committeemen, procedure for impeachment of officers, method of expelling disloyal members, and procedure for adjustment of grievances. The governing body of both organizations was known as the General Com- mittee and functioned similarly, except that the Alliance officers were elected by'the membership at annual meetings and not by the General Com- nnttee, as was the case under the K E. A. constitution. Although the ele- inent of direct management participation, one of the patent illegal provi- sions of the K. E. A. constitution, was eliminated in the Alliance constitu- tion, the latter nevertheless included a provision, also found in the K. E. A. constitution, which makes it possible for the respondent to remove a committeeman from office by transferring him out of the department from which he was elected. The Alliance also provided for payment of 25 cents a month dues, whereas the K. E. A. had no clues provision. Notwithstand- ing the differences noted above and other minor changes, we are con- vinced that the Alliance constitution and bylaws were patterned after the organic structure of the K. E. A. and gave to the employees generally an appearance of continuity between the two organizations. On April 22, the day following the adoption of the constitution, Hogue wrote Superintendent Sommer that the Alliance represented 80 percent of the respondent's employees and requested a conference on April 28 for the purpose of bargaining collectively with the respondent. At a meeting of the Alliance organizing committee on April 27, 1937, Hogue, as temporary chairman of the Alliance, was authorized to appoint a temporary chairman " This and all subsequent meetings were held off the respondent ' s property Foi several months after the formation of the Alliance , it occupied the foimer offices of the K E A The Alliance, however, paid the respondent $ 10 pei month rent commencing April 15, 1937 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Alliance, was authorized to appoint a temporary Wage Committee and Seniority Committee "so these Committees may contact the manage- ment ... to arrange for temporary contracts , agreements etc , until such time as duly elected and permanent committees can make such permanent contracts and agreements . . . " Accordingly , Hogue appointed to these committees members of the organizing committee , who were, as stated above, the officers and representatives of the K. F A. He also appointed to a newly formed Rules Committee four members of, the organizing com- mittee. On April 28, pursuant to Hogue's above-mentioned written request, the respondent's officials met with the temporary officers of the Alliance and its temporary committee on Wages and Working Conditions . For some reason not disclosed by the record , the persons who appeared at this meet- ing as members of the committee were not the persons selected by Hogue on April 27, but were the persons who composed the Wage Committee of the K F. A. Sommer testified that Hogue, or one of the representatives, opened the meeting by presenting "quite a large stack of cards , applica- tion cards-I assume they were applications-as proof of the number of members that had signed up, and asked that we recognize this organization as the bargaining agent for our employees , and after some discussion, we agreed to recognize them" as the exclusive bargaining representative for all the persons then employed at the plant Sommer admitted at the hear- ing that no one on behalf of the respondent counted the cards or checked the signatures thereon 1z Thereafter, on May 4. 1937, the K E A bank balance of $228.53 was transferred to the bank account of the Alliance . This transfer was effected through a check drawn against the K. F . A. account , signed by Earl Low- man and made payable to the Alliance, which was then endorsed by Low- man and deposited to the credit of the Alliance . We find, as did the Trial Examiner, that the funds were transferred at the direction of the temporary General Committee of the Alliancel3 "Sommer further testified that in June 1937 the Alliance submitted to the respondent dues check-off authorizations which supported the Alliance's majority representation claim However, since these authorizations were apparently obtained after April 23, they are not probative of the Alliance's majority status at the time exclusive recognition was first accorded by the iespondent Y3 Lowman testified during the morning session of the first day of the hearing before the Trial Examiner that the funds were transferred pursuant to instructions of the Alliance's temporary General Committee During the afternoon session, on cross-examination by counsel for the Alli- ance, Lowman testified "at that time [May 43 we had no committees formed yet" and that he transferred the funds upon orders from "a group of men associated with the ball club " We agree with the Trial Examiner that Lowman's testimony on cross-examination is unconvincing Coot ii y to his testimony on cross -examination , the Alliance minutes admittedly show that on April 27, 1937, the Alliance temporary committees were appointed and that they weie functioning prior to the date of the tiansfer Moreover, the profits from the activities of the K E A sponsored baseball team were considered part of the K E A treasury and were commingled with funds from other sources in the K E A general bank account Under the circumstances, we do not believe that Lowman would have disposed of the K E A 's entire bank balance without authorization from the K E A officers and committeemen , who at the time were acting as the temporary General Committee of the KEYSTONE STEEL & WIRE COMPANY 691 In May 1937, permanent officers of the Alliance were elected by the membership. Hogue, Cantrall, and Lowman were elected, over other nom- inees, president, vice president, and secretary-treasurer, respectively, James Mahannah, chief clerk in the wire mill, was made assistant secretary, an office not created by the constitution." Among the members of the Alliance who joined during its formative period and had their clues checked off by the respondent were a number. of employees who exercised varying degrees of supervisory authority, as found by the Trial Examiner." This group included, for example, five turn foremen in the open hearth department of the steel plant, who were in charge of separate subclepartments thereof" and had general supervision over an undisclosed number of ordinary employees, and Maintenance Fore- man Tyler,' who also had a crew under him. Although these foremen do not have authority to hire and discharge, the record shows, and we find. that the respondent, as well as the employees, considered them to be repre- sentatives of management." We further find that the respondent is respon- sible for their union activity on behalf of the Alliance Also among the group of supervisory employees who joined the Alliance were five rollers " The respondent admits that these employees exercise some supervisory authority but contends that it is not responsible for their union activity. The record shows that the rollers report directly to the roiling mill super- intendent and are in charge of the operations and crews in the "bloom mill" and the "roll mill." The rollers themselves perform certain intricate opera- tions in the rolling mills and each directly supervises a crew of approxi- mately 10 men; in addition the rollers have other supervisors under them. viz heaters, who in turn supervise the work of crews engaged in certain related operations. The record further shows that rollers are considered Alliance In any event, it is clear that the same group of individuals who were custodians of the K E A ticasury accepted the funds on behdf of the Alliance ii All four of these officers held the same con responding offices in the K E A at the time of its abandonment Hogue, Lowman, and Mahannah had also pieviously served as temporary officers of the Alliance 15 In its exceptions to the Intermediate Report, the Alliance in effect admits that "there were some ,upeivisory employees, including some foremen and assistant foremen, who joined the `Alliance' at its inception or shortly thereafter-," but asserts that "practically Al such employees were promptly dropped from membership " However, the evidence shows that the supervisory employees mentioned herein did not sever their connection with the Alliance until 1941. In any event it is clear that they gave support to the Alliance during the crucial period of its early existence Non cover, it appeals that at the time of the hearing, at least three supervisory employees, whom the respondent admits were representatives of management, were still members of the Alliance irsThe names and official titles of these five are Melter Foremen Fruehauf and Chilcot, Sciap Foremen Franks and Collins, and Head Stock Foreman Conway 17 Tyler is also called a stationary engineer iSAt the healing Supernitendcnt Sommer tesi.icd that on one occasion he reprimanded a fuse man who was acting on behalf of the Union because it was "illegal under the law," and contrary to the respondent's policy for a "supervisor or a foreman" to engage in oiganizational activity In its brief before the Board, the respondent commenting on this incident, admitted that the conversation between Sommer and the foreman was discussion between "representatives of management " 19 The naives of these toilers are T S ronihn (head iolin ), R Wau sen Brown, Edw Aldr idge, H P Mason, and John Flannery 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the respondent to have at least the same supervisory status and authority as turn foremen. Under all the circumstances, we find that rollers, like foremen, are representatives of management for whose conduct the re- spondent is chargeable. . The record discloses that from 1937 through 1942 the respondent and the Alliance held numerous bargaining conferences and reached agreement with respect to matters relating to wages, hours, and other conditions of employment; but not until after the Union appeared at the plant, as de- scribed below, were any of these understandings embodied in a signed writ- ten agreement. On numerous occasions during this period, the Alliance requested such an agreement but the respondent consistently refused to execute a bilateral agreement for the stated reason that no other "little steel" company had signed a contract with a labor organization." 3. The appearance of the Union and events subsequent thereto About June 1942, the Union appeared at the respondent's plant. It held organizational meetings, elected officers, and began a membership cam- paign among the respondent's employees. The Alliance immediately coun- tered by intensifying its organizational activities in the plant. During the existence of these rival campaigns, the respondent failed to maintain the neutrality required of an employer by the Act. At a meeting on June 15, 1942, between the Alliance Seniority Com- mittee and Superintendent Sommer, the latter turned to John Huber, then a member of the committee, and stated that he heard that the Union had recently held a meeting which was attended by 17 employees and that he expected to obtain the names of those in attendance.''i A clay or two later Hogue. the Alliance president, came to the plant during his off shift and had a long conversation with Huber during the latter's working time in an effort to ascertain whether Huber belonged to the Union. At that time, Huber denied his membership in the Union. However, by letter dated June 23, Hogije advised Huber that, in accordance with the Alliance con- stitution, charges had been filed against him because of his dual mem- bership and that a hearing would be held with respect to his proposed expulsion from the Alliance. Huber did not attend the hearing and he was expelled During June and thereafter, Hogue threatened a number of other employees, including Fred Kelly and Winfred flout, with expulsion from the Alliance because of their membership in the Union. 2° However, in December 1940, the respondent issued a "Statement of Labor Relations Policy," coverinig matters usually embodied in a collective bargaining agreement, including recognition of the Alliance as the exclusive bargaining representative Although this document recited that the "policies" set forth therein had been approved by the Alliance, it specifically piovided for unilateral changes therein b) the respondent at any time. 21 The reroid 'bows that on June 13 or 14, 17 employees attended a meeting of -tile Union and elected John Huber temporary piesident KEYSTONE STEEL & WIRE COMPANY 693 At about the same time that the Alliance began to purge its membership of union adherents , the respondent started for the first time effectively to enforce its no-solicitation rule, which had been promulgated in 1940 22 On June 30, 1942 , Superintendent Moritz sent letters to l-luber and Jack White, president and chief steward of the Union; respectively, stating that their union activity and solicitation in the plant was contrary to "Com- pany policy" and that if they did not cease such activity "drastic action would have to be taken ." Thereafter , other active members of the Union received similar threatening letters from Moritz or were orally reprimand- ed by the respondent for union solicitation in the plant. In December 1942, employee Kelly was actually discharged because of an alleged violation of the no-solicitation rule, but was later reinstated when the respondent ascer- tained that in fact he had not violated the rule. In marked contrast to this treatment accorded union members, the record shows that the Alliance members and officers continuously and openly solicited and engaged in other activity on behalf of the Alliance in the plant , frequently during work- ing hours, with virtual impunity . Shortly after Huber and White received the above-mentioned letters concerning their soliciting in the plant, they complained to Moritz that Hogue also was engaging in similar activity on behalf of the Alliance ; at that time Moritz stated that he would write Hogue a similar letter. However , at the hearing before the Trial Examiner, Moritz admitted that he never wrote such a letter to Hogue, but added that he spoke to Hogue about the matter.` The record contains other incidents which further establish the respond- ent's partisan attitude . Sometime during 1942, Superintendent Sommer, in reprimanding Foreman Newbury for allegedly "talking to the men about the C I . 0 ," remarked, according to Newbury, we have "an organi- zation here and we are going to maintain that organization right now."" On November 17, 1942, Superintendent Moritz wrote Hogue that he had learned that two or three employees of the Nail Department had thrown their Alliance buttons into a scrap can and that Moritz had requested the acting foreman to investigate the matter In the letter to Hogue , Moritz quoted the report of the acting foreman. which reads: In regard to the men throwing their Alliance buttons away, I was told by one of the men that this happthed three or four weeks ago. '= While this rule prohibits any form of solicitation on the respondent 's premises , it was applied only to cases of union solicitation 23 Superintendent Moritz also testified that sometime in 1937 or 1938, he warned an unnamed employee against soliciting on behalf of some unnamed labor organization . It is also noted that during December 1943, Foreman Cordes ordered the removal of a ballot box which had been put in his department by an Alliance committee man for the purpose of taking a vote of the employees with respect to a pioposed change of working conditions in the department 24 While Sommer did not specifically deny the statement attributed to him, his version of the conversation differs somewhat from that of Newbuiy's The Trial Exammnei found Newbury to be a credible witness and we agree 69-1 DECi SIO1NS OF NATIONAL LABOR RELATIONS BOARD It has always been customary , when we are short of help , to take men off jobs where the kind of nails and tonnage would effect us the least, which normally is the 4D machine jobs. On these machines the regular helpers are Byrne , Molleck, Cramer, Maple, Girdzus and Keil. Maple and Molleck never complain much when they are taken off of their regular jobs but Byrne , Cramer, Girdzus and Kell at times have seemed more or less disgusted. Keil said that he was one of the men who threw his Alliance button away. I asked him why he did , and he said because he was too dis- gusted being taken off his regular job so often, although he did not say that he didn't mean anything by doing this, and also that he real- ized that there wasn't anything we could do about it , and said he felt that the other fellows who threw their buttons away felt the same as he did. It seems as though some of these nien understood that when they bid on a job and got it they would not be taken off, however , this nat- urally was a misunderstanding on their part , and even though these mein do continue to get disgusted, there isn't anything we can do about it, when other men lay off or if we are short of help , so I just can't see any way to remedy this situation. Moritz concludes the letter by saying, "I just thought , Bruce, that you would appreciate having this information." By letter dated December 15, 1942, Moritz sent Hogue another "bit of information" which Moritz thought Hogue would be "quite interested in." Therein Moritz stated : ... For your information, Mr. Herb Romen, Superintendent of the Northwestern Steel & Wire Company, called me this morning, so I took advantage of the opportunity to ask him about their working schedule, and he informed me that after the C.I.O. had gained a sole bargaining agreement with the Company, that the C.I.O. had learned from a former Keystone employee, who was then and still is working at Northwestern, about the 4-day off schedule that we had in force here, and that the C.I.O. immediately requested Northwestern Steel & Wire Company to ad 't this same schedule, which the Company agreed to do.25 One of the anti-union leaflets, distributed by the Alliance during the Union's campaign, quoted Superintendent Moritz as having said that Huber told him that the Union's members in the fabric department were "laying down" on the job. Later, Huber rebuked Moritz for permitting 25 The union members at the respondent 's plant were objecting to the "4 -day off schedule" which was then in force in some of the respondent 's departments KEYSTONE STEEL & WIRE COMPANY 695 his name to be used in the Alliance's "smear campaign." According to Huber, Moritz admitted having made the quoted statement to Hogue and then characterized the "C I O." as "one of the rackets in the world," adding that if Huber "would just keep on with some more of the things he had said in the [Union's] meetings [he] would not get very far with it."' The record shows that other disparaging and belittling remarks about the Union were made by the respondent. For example, while Homer Coward and some other employees were discussing the Union, their fore- man, Steve Conway, passed by and asked, "Why do you want the C. I. O. here?" On another occasion, Clyde Milan was asked by his foreman, Emil Hoffman, whether he had been "sucked" "into the C. I. 0." Foreman Yocum asked Winfred Hout, one of the members of the Union who was expelled from the Alliance and who received a threatening letter from Moritz with respect to an infraction of the no-solicitation rule, how he and the Union were "getting along," and then said "we have the Independent Union here, and I don't think you will be better off in the C. I. O. because they won't get you anything." On December 1, 1942, the Union wrote the respondent that it repre- sented a majority of the respondent's production and maintenance employ- ees and requested that the respondent recognize and bargain with the Union as the employees' exclusive bargaining agent.' By letter dated De- cember 4, 1942, the respondent refused the Union's request for rceogni- tion, stating that the respondent "now recognizes and has for several years last past recognized the [Alliance] as collective bargaining agent," that such recognition was "based upon evidence heretofore submitted," and that the Union had not furnished evidence of its majority representation claim. The record shows that the respondent furnished the Alliance with this exchange of correspondence and that shortly thereafter the respond- ent and the Alliance began negotiations for a written contract. On Febru- ary 11, 1943, the respondent and the Alliance, for the first time, executed a written exclusive bargaining contract. 4. Conclusions That the K. E. A, existed at all times after July 5, 1945, in violation of Section 8 (2) of the Act is too clear for discussion.27 The respondent suggested the formation of the K. E. A. and thereafter, until the abandon- ment of the K. E. A. in about the middle of 1937, participated in its admin- istration and contributed financial and other support to it. 21 At the hearing before the Trial Examiner , Moritz admitted that'Huber had complained to him about the Alliance's smear campaign but he denied that he had made the disparaging remarks attributed to him by Huber Since Huber 's testimony is corroborated in part by Moritz and since the record shows that on other occasions Moritz evinced a desire to assist the Alliance, we find, as did the Trial Examiner, that Huber's version of the convei sation is substantially accurate. 27'rlie iespaident admits that its conduct with respect to the K E A WAS violative of the Act 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are equally convinced, and we find, that the Alliance exists as a continuation of, and the successor to, the K. E. A. and thereby inherited the K. E. A.'s taint of illegality. It is clear that thg Alliance grew out of the K. E. A. without any line of fracture or break in continuity. This metamorphosis resulted from the respondent's belated decision, compelled by the Supreme Court's decision upholding the constitutionality of the Act, to withdraw recognition from the K. E A., and the efforts of the K. E. A. leaders to perpetuate the type of labor organization which was known by them, as well as the other employees, to have the respondent's support and approval. Immediately after the respondent privately informed the K. E. A. offi- cers that it would no longer recognize the K. E. A. because of its inherent illegality, they together with other members of the K. E. A General Com- mittee met in the plant and decided to abandon the K. E. A. as such and to establish another unaffiliated organization known as the Alliance. As related above, this group of K. E. A. officials, acting as the Alliance organ- izing committee, directed and controlled the Alliance during its formative period and thereafter. They openly conducted an intense and widespread membership campaign in the plant during working hours. The K. E A. officers became the temporary and, later, the permanent officers of the Alliance, and the K. 'E. A. committeemen were appointed to the various temporary committees of the Alliance. The constitution and bylaws of the Alliance, drafted by one of the temporary committees, was patterned after the organic structure of the K. E. A. and contains an identical provision, which in effect permits the respondent to control the tenure of office of the Alliance committeemen. The treasury of the K. E. A was turned over to the Alliance and used by it as part of its general treasury. At no time did the respondent inform the employees generally that the respondent withdrew its support and recognition of the K. E. A., that the employees were free to join or not to join any other labor organization, and that the respondent was wholly indifferent with respect to the self-organizational activities of its employees. Within about 2 weeks after the Alliance move- ment first began and during its crucial formative period, the respondent met with the erstwhile leaders of the K. E. A. as the Alliance temporary bargaining committee and precipitately accorded exclusive recognition to the Alliance without first verifying its claimed majority status by a mem- bership card and pay-roll check, or by even counting the number of cards submitted. Thereafter, and over a period of years, the respondent bar- gained with the Alliance, as it had previously done with the K. E. A., with- out embodying the understandings reached into a signed agreement. In view of the foregoing facts and circumstances, the employees could reason- ably conclude, and we find, that the Alliance evolved from and was linked KEYSTONE STEEL & WIRE COMPANY 697 to the K. I? A. and, as its successor,- was the recipient of the respondent';, continued support and favor.' The respondent contends, however, that it satisfied its obligation under the Act by notifying the K E. A. officers and committeemen of its with- (lrawal of recognition from the K. E A." We do not agree In our opinion such conduct falls short of the affirmative action required of the respondent to disabuse the employees generally of the reasonable impression and belief that the Alliance had the same management favor and support which accompanied the K. E. A., and cannot be regarded as effectively wiping the slate clean so as to afford the employees an opportunity to start afresh, The respondent made no public announcement whatsoever to its employees, it did nothing publicly to disavow the K. E. A and to inform the employees of their freedom in self-organizational matters and of the respondent's complete indifference in that regard, thereby making plain the separation between the two organizations. On the contrary, we find that the respond- ent's failure to give suitable publicity to its abandonment of the K. E. A and to any indifference which it may have had regarding its employees' organi- zational activities, especially when viewed in the light of the sudden and immediate formation of the Alliance under the circumstances hereinabove outlined, confirmed the impression and belief which could reasonably arise in the minds of the employees that the Alliance was merely a continuation of and a successor to the K. E. A. 'While we are of the opinion that such pronouncements, to be effective, must be made by the respondent directly to its employees at large, and not through an intermediary such as the K. E A. officers, it is clear and we find that in the instant case no such information was given to the employees ° See N L R B v Southern Bell Telephone and Telegraph Co , 319 U a S 50, International Association of Machinists v N L R B , 100 F (2d) (App D C ), aff'd 311 U S 72, Westing- house Electric & Mfg Co v N L R B , 112 F (2d) 657 (C C A 2), aff'd 312 U S 660, The Cudahy Packing Co v N L R B, 116 F (2d) 367 (C C A 8), Sperry Gyroscope Co v N L R B , 129 F (2d) 922 (C C A 2), N L R B v Standard Oil Co, 138 F (2d) 885 (C C A 2), and Western Electric Co v N L R B , 147 F (2d) 519 (C C A 4) cert den 65 S Ct 1014 Zo In support of its contention the respondent relies principally on N L R B v Duncan Found, y & Machine Works, 142 F (2d) 594 (C C A 7), wherein the Court, in reveising a Board finding of employer domination of a successor union, concluded that under the circumstances there present the etployer had "effectually disestablished " the predecessor dominated union even though notice of that fact was given by the employer only to representatives of the predecessor union and not to the employees generally. Aside from other considerations , we do not think that the cited case is here controlling on its facts The Court significantly pointed out in that case that the employer had explicitly evinced to the representatives a neutral position and that such neutrality was. made clear at an organizational meeting, attended by over half of the employees involved The Court also emphasized that at the meeting the employees voted down a motion to retain all the officers of the predecessor organization and rejected a proposed agreement because "they had no hand in its composition ." and that "the president of the old organization was placed in nomination and, by a majority vote, he was defeated," These facts are not present in the instant case 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD generally even through the K. E. A. officers or in any other manner' More- over, the notification to the K. E. A. officers of the respondent's withdrawal of recognition did not contain an assurance to them that the respondent was completely indifferent to their organizational efforts and that it had adopted and intended to pursue a policy of strict neutrality with respect to the future self-organization of its employees, nor did the K. E A. officer', and organizers relay such assurances to the employees at large. Finally, whatever appearance of neutrality might here have arisen from the aban- donment of the K. E. A. was promptly dissipated by the support and encour- agement given by the respondent to the Alliance in its formative period. For example, as stated above, the erstwhile leaders of the K. E. A. were permitted to engage in open and widespread organizational activities on behalf of the Alliance in the plant during working hours ; supervisory employees joined and remained members of the Alliance during its critical formative stage; and the Alliance was hastily accorded exclusive recogni- tion without any attempted verification of its claimed majority status. Moreover, even disregarding the factors which marked the Alliance as the successor to the K. E. A., we are convinced and find that during the period when the Union was competing for the allegiance of the respond- ent's employees, the respondent adopted an unneutral position in favor of the Alliance and rendered valuable support and assistance to it, within the meaning of Section 8 (2) of the Act. It is clear that the respondent did not give the Union the same organizing privileges in the plant which were accorded to the Alliance both before and after the adoption of the no-solicitation rule in 1940. As stated above, immediately after the Union began its campaign in June 1942, the respondent for the first time put into effect its dormant no-solicitation rule. Forceful letters were sent by the respondent to known active members of the Union, accusing them of vio- lating the rule and warning them that future infractions would result in "snore drastic" penalties ; one union member was discharged, although later reinstated, for alleged repeated violations of the rule. No such sim- ilar forceful action was taken against the Alliance members who, the re- spondent knew or should have known, were also violating the rule. Under the circumstances, we find that the respondent discriminatorily invoked and enforced its no-solicitation rule so as to impede the Union's campaign and to assist the Alliance in maintaining its status. Furthermore, it is now firmly established, and we find, that the respond- ent's no-solicitation rule is violative of the Act, insofar as it prohibits union 80 Some employees testified generally that at about the time of the formation of the Alliance, or shortly thereafter , they learned from sources other than the respondent that the K E. A had been dissolved Others testified that they did not know what happened to the K E. A One witness for the respondent testified that at the time in question he had no information as to whether the K. E A had been dissolved , adding "We went right from one [K E A ] to the other [the Alliance] and I did not pay any attention to it." This testimony is entirely consistent with our findings herein KEYSTONE STEEL & \VIRE COMPANY 699 solicitation by employees on company property during non-working hours " This unlawful prohibition in the rule is a recognized impediment to self- organization and, aside from its discriminatory enforcement, handicapped the Union, which was trying to gain a foothold in the plant, more than it did the Alliance, the established and recognized bargaining agent. Thus, the very existence of this illegal rule had the necessary effect of impeding the employees in the exercise of their right to transfer their allegance from the Alliance to the Union and thereby constituted further assistance to the Alliance, Moreover, it appears that the Union's campaign, in fact, was suppressed to some degree by the actual application of the rule to union adherents who were soliciting in the plant during lunch and other non- working periods. The record shows other close cooperation between the Alliance and the respondent calculated to thwart the Union's campaign. The Alliance first expelled certain of its members who were leaders in the union movement and then complained to the respondent that those individuals were active in the plant on behalf of the Union Immediately, as noted above, the respondent took effective steps to suppress these active union adherents. A neutral employer would have recognized such complaints as campaign strategy of a rival union and would not have so acted upon them, especially since the Alliance was also engaging in the same general` type of activity. Moreover, on other occasions, the respondent gratuitously furnished the Alliance with various "bits" of information, mentioned above, which were calculated to assist the Alliance. The respondent's partisan attitude and approval of the Alliance is further established by the hostile remarks of foremen against the Union and by foremen and other supervisory employ- ees becoming and remaining members of the Alliance without objection by the respondent." Finally, the respondent rendered invaluable assistance to the Alliance by signing an agreement with it as exclusive bargaining representative in February 1943, shortly after the respondent had received notice that the Union also was claiming exclusive bargaining rights. Theretofore, the respondent had constantly rejected the Alliance's many previous requests for a signed agreement. We are convinced that at this time the respondent abandoned its long standing and well known policy of refusing to execute collective bargaining agreements and contracted with the Alliance in order firmly to entrench the Alliance as the employees' statutory bargaining representative so as to frustrate organizational activity by its employees ax There is no showing that the rule prohibiting union solicitation during non -working hou, c w.iti necessary in order to maintain production or to preserve discipline at the plant Matter of Repuhlt, 47natfon Corp, 51 N L R. B. 1186, enf'd 65 S Ct 982 (16 L R R 300), decuir 1 .Apnl 23, 1945 "In marked contrast , the respondent, according to Superintendent Sonunci, rep uuandkd Foreman Newberry for engaging in pro-union activities among the employ ces 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T on behalf of the Union. As we have previously held, a neutral employer, upon being confronted with conflicting representation claims by two rival unions, "would not negotiate a contract with one of them until its right to be recognized as the collective bargaining representative had been finally determined upon the procedure set up under the Act.' The conflicting claims of the Union and the Alliance gave rise to a question concerning representation of the respondent's employees which the respondent could have had conclusively resolved by filing with the Board an employer's representation petition. However, the respondent elected to disregard the Union's claim and to negotiate with the Alliance on the basis of inconclu- sive proof of its majority status. While the respondent may have received, over a period of time, Alliance dues check-off authorizations from a major- ity of its employees, it was aware of the existence, and had no way of ascertaining the extent, of dual membership among its employees, resulting from the intense organizational activity of the two competing unions. We are satisfied and find that by contracting with the Alliance under these circumstances, the respondent gave the Alliance an unsurmountable advan- tage over the Union, indicated its continued approval of the Alliance, accorded it unwarranted prestige, and thereby rendered unlawful support and assistance to the Alliance" At the hearing before the Trial Examiner, about 200 members of the Alliance testified, and the respondent offered to prove through about 900 others, that they joined the Alliance of their own free will and accord; that the respondent in no way influenced them or caused them to join the Alliance, that they had always felt free to join or not to join any labor organization they desired, and that to their knowledge the reppondent had not dominated or interfered with the administration of the Alliance. We have considered this evidence and find that it does not overcome the more positive testimony in the record that the Alliance is the successor to the K E. A , that the respondent rendered unlawful support and assist- ance to the Alliance, and that the respondent's conduct with respect to both organizations removed from the employees' selection of the Alliance the complete freedom of choice which the Act contemplates Moreover, such testimony by employees concerning the effect, or lack of effect, of the respondent's acts on them, aside from being generally unreliable because of the very nature of the circumstances involved, is not probative of whether the respondent has actually engaged in the illegal conduct found above and upon which our unfair labor practice findings herein are predi- 3a See Mattel of Elastic Stop Nut Corporation, 51 N L K 13 694, 702, enf'd 142 F (2d) 371 (C C A 8) 34 See Matter of Elastic Stop Nut Co,po,atiou, supra, also Matter of Minnesota Mining and Manufacturing Company, 61 N _,.B 697, where the Board set aside an election because shortly prior thereto, the employer rarg,uned with one of two i ival unions on a gi ievance and thereby evinced a discrmunatory pr(feience for that unit KEYSTONE STEEL & W1RE COMPANY 701 sated." Nor do we find merit m the contention that the Alliance should not be disestablished because of a showing that at times the Alliance assumed some degree of militancy in dealing with the respondent on behalf of the employees . That the Alliance may have achieved some measure of success during its protracted bargaining relationship with the respondent cannot, and does not, cleanse the Alliance of its illegal taint .° Moreover, it cannot be said that greater benefits might not have been secured if the freedom of choice of a bargaining agent -had not been interfered with.'" In any event , the effect of the respondent ' s unlawful conduct with respect to the Alliance and its predecessor , the K E A , have not been dissipated. Upon the entire record, we are convinced and finch that the Alliance is incapable of functioning as a true bargaining representative of the respond- ent's employees and continues to operate as a bar to the freedom of self- organization.38 We find, as did the Trial Examiner, that the respondent , by the fore- going acts and course of conduct , dominated and interfered with the admin- istration of the K E A . and the formation and administration of the Alli- ance, and contributed support to both of them , within the meaning of Section 8 ( 2) of the Act , thereby interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the respondent , by its conduct in discriminatorily invoking and applying its no-solicitation rule, in extending the prohibition against union solicitation in the plant to the employees' non-working hours, and in executing a contract with the Alliance under the circumstances set forth above , interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. B. The alleged discriminatory discharges The complaint,,as amended at the hearing, alleged that the respondent on May 28, 1943 , demoted eight named employees and thereafter dis- charged them because they had joined and assisted the Union and had engaged in other concerted activities with other employees for the pur- poses of collective bargaining and other mutual aid and protection . The re- spondent 's amended answer denied that the said-eight employees were demoted. The amended answer averred that they were discharged for refusing to do the work assigned to them. These eight employees were employed in the fabric department of the '° Western Cartridge Co ^ N L R B , 134 F (2d) 240 (C C A 7), cert denied 320 U S 746 36 See Corning Glass Works v N L R B , 118 F (2d) 625 (C C A 2), Sperry Gwoscope Co % N L R B, 129 F (2d) 922 (C C A 2) 37 Virginia Electric and Power Co v N L R B , 319 U S 533 ° N L R B v Newport News Shipbuilding & Di ydock Co , rupra, N L R B v Link-Belt Corn- pany, 311 U S 584, Westinghouse Electric & Na ofacturung Company v N L R B, supra, Inter- national Assn of Machinists v N L R B , supra 702 lECISIONS OU yATIONAI. LABOR RELATIONS BOARD wire mill. Sometime in 1939 or 1940, the respondent fixed that depart- ment's normal force' at 32 men. Shortly after the United States entered the war, the production in the fabric department was materially reduced because the Government placed the material there produced on the non- essential list for civilians. By May or June 1942, the normal force in the fabric department had been, through resignations from respondent's em- ploy or through men going into the armed forces, reduced to 26 men. Nevertheless, by May or June there was not sufficient business in the fabric department to necessitate the retention of the 26 persons and the respondent, instead of laying off some employees or assigning them to other departments," divided the work in that department. Due to contracts received by the respondent from the Government, the work in the respond- ent's patenting department increased so that by May or June more men were needed in the patenting department. Accordingly, the respondent divided the work in the fabric department with the men there employed and sent to the patenting department the men for whom there was no work in the former department. This arrangement was a source of much concern to the respondent. The fabric men did not desire this arrangement because they could not earn as much money in the patenting department as they earned in the fabric department. In fact, some employees informed Moritz that they did not care to work in the patenting department and would be satisfied with whatever work they could obtain in the fabric department. The record shows that the work in the patenting department was more laborious, tedious, and dangerous than that in the fabric depart- ment. In fact, in a short space of time, four fabric department men were injured while working in the patenting department The foremen and the employees of, the patenting department also complained to Moritz about this arrangement. The foremen complained that production suffered due to the shifting of the fabric department men every few clays The patenting department's normal force complained because due to the shifting of the fabric department men, the), the patenting department men were not able to turn out sufficient products to warrant them obtaining their usual bonuses. For about 6 months prior to May 28, 1943, Moritz attempted to induce the fabric department men to agree to reduce the size of its normal force and to allow him to assign some of them either to the hot house or to the patenting department S1 The men were adamant in their refusal to consent 89 By "normal force" is meant the fixed number of employees who would get I certain and established amount of work in that department before new men or mien of lesser seniority would be given work in that department in 1939 or 1940, the respondent fixed the normal force in each department in the plant SODepartment, not plant, seniority prevails 41 For the past several years it has been the respondent's policy to allow the men in the depart- ment to decide whether the normal force should be reduced The same is true before a drastic change in working conditions is put into effect KEYSTONE STEEL & WIRE COMPANY 703 to such reduction or transfer." On May 14, Moritz wrote Hogue the fol- lowing letter : We are still bothered with complications in our Patenting Department as a result of-Fabric Department men working three days in the Fabric Department and then three days in the Patenting Department. It causes a lot of confusion and certainly hampers production, for it is only logical to assume that men can be more efficient where they are steadily employed on a particular job. It appealed to you and the Department Committee very urgently in December for the Fabric Department to vote on a proposition to give the oldest men the maximum amount of time in the Fabric Depart- ment, and let me have the rest of these men with the assurance that they would receive the same hours of work in some other place in the Mill as the older men in the Fabric Department received in the Fabric Department. Naturally I could not guarantee these newer men the same earnings as then would make in the Fabric Department but for example, had that rule gone into effect at that time, everyone of those men that would have come out of the Fabric Department at that time, if they had applied themselves, would have had jobs in the Drawing or the Patenting Department, which would have made them equally as much money, or more than they had been making The proposition was turned down, however, and as I see the picture, both the men and the Company have been the losers, but I really believe the men were hurt far more than the Company, and now we are still faced with about the same condition. I am wondering if you will revive this thought and see what can be clone-the proposition remaining the same which is to give whatever men are needed in the Fabric Department six clays according to their seniority, and the rest of the men we will use in some other place in the Mill, which, under present conditions would place them all in the Patenting Department. This rule to be only temporary for the dura- tion, or if you or the men would so prefer, we could make it for a 90-day period at a time. The sole thought involved is to get out the maximum amount of production per man between the two Departments. On May 15, Hogue, by letter, communicated to the men in the fabric department the contents of Moritz's letter." On or about May 24, the 4It was clearly understood by the into in the fabric department that if the normal force were reduced, it would be done in accordance with seniority 13 More specifically , Hogue's letter was sent to the Alliance' s committeemen of the fabric depart. nient, but all the employees of that department were immediately advised of the contents of the letter 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alliance members of the fabric department voted to reject Moritz's sug- gestion." Moritz was immediately informed of the employees' decision. He then conferred further with Hogue in an effort to have Hogue use his influence with the men in that department Either on May 27 or 28, Hogue's son, Glenn, a fabric department employee, and an Alliance com- mitteeman, circulated a petition among the fabric department men, which stated that the signatories thereto were not adverse to the reduction of the normal force providing the men transferred did not lose their fabric department seniority. A majority of the fabric department men signed the petition.' On May 28, the petition was presented to Moritz. He testified that before the receipt of the petition he had decided to reduce the fabric department, and therefore, the petition played no part in his determina- tion. He also testif.°d that it was the respondent's policy to pay no attention to petitions submitted by employees. Moritz further testified that on May 28, lie told Hogue and the fabric department committeemen that lie had decided to reduce the fabric department normal force to 16 men and transfer the remaining 10 men to the patenting department; that the men transferred would not lose their fabric department seniority ; that the new schedule would be put into effect the following week, that Hogue and the committeemen requested as long as the change was going to be niacle, that it be nmacle at once: and that he thereupon, recalled the schedule which had been posted earier that clay and posted a new schedule, which showed that the noraml force was reduced to 16 men and that the 10 men with the least seniority were transferred to the patenting department. The union members in the fabric department, upon realizing the pur- pose of the petition, which some of their comembers had signed, and upon further realizing that the Union's president, its recording secretary, and its chief steward were among those to be transferred, circulated a petition on June 1, which, in effect, was a revocation of the petition circulated by the Alliance. The Union's petition was signed by 17 fabric department men, including many who had signed the Alliance petition. Eight of the 10 men transferred refused to work in the patenting department and remained away from the plant. On June 1, Moritz posted a notice in the fabric department which stated that the men transferred would retain their fabric department seniority, would be permitted to return to that department as soon as work there warranted it, and would "also be building up seniority in the Patenting Department." Later that day or on June 2, Huber, the president of the Union, requested Moritz to fix a time so that he and a committee from the 44 Although most of the men in the fabric department weie members of the Union, all but a few were also members of the Alliance 41 Some of the Board's witnesses testified that they signed the petition under a misappiehension, thinking that, from what Glen Hogue had told them, the men with the least scniot tty wet e willing to be transfeiied - KEYSTONE STEEL & WIRE COMPANY 705 Union could discuss the reduction of the normal force. Moritz made the appointment for June 5. At the appointed hour Huber and his committee came to Moritz office. When they saw Hogue, his son, and the Alliance fabric committee with Moritz and the fabric department foreman, one of the Union's members said that it seemed to him that they were in the wrong office and thereupon Huber placed the petition which the Union had circulated on Moritz's desk and he and his committee left Moritz's office. Hogue and his committee then left. Shortly thereafter, two of the eight fabric department men who refused the transfer came to Moritz's office and inquired as to what happened at the meeting. Moritz told them what transpired and advised them to report for work immediately in the patenting department. They replied that they did not want to lose their seniority. Moritz then read to them a copy of the notice which he had posted on June 1. Upon leaving Moritz's office, the two men stated that they would consider whether they would accept the transfer. On June 6, the Union held a meeting of its fabric department members which was attended by all, except one or two. There, the two members who conferred with Moritz on the previous day told their coinembers the contents of the posted notice and about Moritz's advice to accept the transfer.' Nonetheless, the union members decided not to accept the trans- fer. Pursuant to the Union's request, the respondent's attorney, on June 9, conferred with the eight union members who refused the transfer as well as with two representatives of the Union's International During the course of the conference, the attorney read to all present a copy of the June 1 notice and advised the eight men that" if they did not immediately return to work they would be "hurt." Again the eight men refused to work in the patenting department. On June 10, the personnel manager telephoned each of the eight men and inquired whether he intended to accept the transfer. Each replied m the negative. On June 11, the respondent wrote each of the eight men that he was discharged for refusing to perform the work assigned to him. Counsel for the Board contended at the hearing-that the respondent did not in good faith reduce the fabric department's normal force, but trans- ferred the 10 men in order to discriminate against these men because of their union membership and activities. While it is true that 2 union officials and its chief steward were among the persons transferred to less desirable positions, the record, although replete with evidence showing that the respondent was opposed to its employees' belonging to the Union. does not support the allegation of the complaint, as amended, that the 8 named employees were demoted and subsequently discharged because of their union membership or activities. This finding is buttressed by the fact that Se Since most of the fabric dep.utment union men remained away from the plant after May 28, they did not know about the June 1 notice 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in August 1943, the fabric department 's normal force was further reduced and the men who did not remain in that department were transferred to another department. Among those transferred was Glenn Hogue . Subse- quently, however , work in the fabric department increased and the men transferred in August were recalled. Moreover, the 2 men who accepted the transfer to the patenting department on May 28, subsequently refused offers to return to the fabric department because they were earning more money in the patenting department. Under the circumstances , we agree with the Trial Examiner and find that Fred Raines, John Huber, Merle Davis, Virgil Woods, Edgar Part- low, Allen Pitchford, Thomas Hayes, and Jack White were not discrimi- nated against, within the meaning of Section 8 (3) of the Act . We shall, accordingly dismiss the complaint as to them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A, above, occur- ring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interefered with the administration of the K. E. A. and with the formation and administra- tion of its successor, the Alliance, and has contributed support to them. Since the K. E. A. has ceased to function, we shall not order its disestab- lishment ; but since this organization has been succeeded by the Alliance, with which the respondent is currently dealing, we shall order the respond- ent to cease and desist from recognizing the K. E. A., in the event that it should subsequently resume functioning . Moreover, we find that the present existence of the Alliance and its continued recognition constitute a con- tinuing obstacle to the exercise by the employees of the rights guaranteed them under the Act. Therefore, in order to effectuate the policies of the Act and to free the employees from the effects of the respondent' s unfair labor practices, we shall order the respondent to withdraw all recognition from the Alliance as the representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages; rates of pay, hours of employment, and conditions of employment, and to completely disestablish it as such representative. As we have previously found, the respondent's conduct in executing the contract of February 11, 1943, with the Alliance constituted unlawful KEYSTONE STEEL & WIRE, COMPANY 707 assistance to the Alliance. This contract has been a means whereby the respondent has utilized the unlawfully dominated and supported Alliance to frustrate self-organization and to defeat genuine collective bargaining by the employees. We shall, therefore, order the respondent to cease and desist from giving effect to said contract or to any renewal, extension, modification, or supplement thereto. Nothing in this Decision or in our Order shall be taken to require the respondent to vary those wages, hours, seniority, and other substantive features of its relations with the employees, themselves, which the respondent has established in the performance of said contract. Since we have found that the extension of the prohibition against union solicitation by employees to their non-working hours was violative of the Act, we shall order the respondent to rescind immediately the rule to that extent. The maintenance of a lineage of company-dominated and supported organizations presents a ready and effective means of obstructing self- organization of employees and their choice of their own representatives for the purposes of collective bargaining The respondent's long domination of and interference with two successive labor organizations, its contribution to support of them, the activities of its supervisory employes, the discrim- inatory enforcement and application of the no-solicitation rule, and the extention of the prohibition against union solicitation by employees to their non-working hours, ran the gamut of interference, restraint, and coercion within the meaning of Section 7 of the Act. Because of the re- spondent's unlawful conduct and its underlying purpose, we are convinced and find that the unfair labor practices found are persuasively related to the other unfair labor practices prescribed by the Act and that a danger of their commission in the future is to be anticipated from the course of the respondent's conduct in the past. The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interdepartment guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize strife which burdens and obstructs commerce and thus effectuate the policies of the Act, we shall order the respondent to cease and desist from in any other manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. United Farm Equipment & Metal Workers of America, affiliated with the Congress of Industrial Organizations, and Independent Steel Workers' Alliance are labor organizations, and Keystone Employees Asso- ciation was a labor organization, within the meaning of Section 2 (5) of the Act. 7Ocni DECISIONS Or NATIONAL LABOR RELATIONS BOARD 2. By dominating and interfering with the adnunistration of Keystone Employees' Association , by dominating and interfering with the formation and administration of Independent Steel Workers' Alliance , and by con- tributing support to them, the respondent has engaged in, and by contrib- uting support to them , the respondent has engaged in, and as to the Alliance, is, engaging in, unfair labor practices , within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranted in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not discriminated in regard to the hire and tenure of employment of Fred Raines , John Huber , Merle Davis, Virgil Woods, Edgar Partlow , Allen Pitchford , Thomas Hayes, and Jack White, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Key- stone Steel & Wire Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a)^ Dominating or interfering with the administration of Keystone Employees Association, or its successor, Independent Steel Workers' Alliance, or with the formation and administration of any other labor organization, and from contributing support to Keystone Employees Association, or Independent Steel Workers' Alliance, or any other labor organization ; (b) Recognizing Independent Steel Workers' Alliance as the repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of _pay, Hours of employment, or other conditions of employment ; (c) Giving effect to any and all contracts, supplement-s thereto or modi- fications thereof, with Independent Steel Workers' Alliance; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to foriin labor organizations, to join or assist United Farm Equipment & Metal Workers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted KEYSTONE STEEL & WIRE COMPANY 709 activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from, and completely disestablish, Inde- pendent Steel Workers' Alliance as the representative of any of its em- ployees for the purposes of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and refrain from recognizing Keystone Employ- ees' Association in the event that organization returns to existence; (b) Rescind immediately the rule against solicitation insofar as it extends to the employees' non-working hours; (c) Post at its steel mill and wire mill at Bartonville, Illinois, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material ; (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) clays from the date of this Order, what steps the respond- ent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar. as it alleges that the respondent discriminated against Fred Raines, John Huber, Merle Davis, Virgil Woods, Edgar Partlow, Allen Pitchford, Thomas Haves, and Jack White, be, and it hereby is, dismissed. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We hereby disestablish Independent Steel Workers' Alliance as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes We will not dominate or interfere with he formation or adminis- 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tration of any labor organization or contribute financial or other support to it. We will refrain from recognizing Keystone Employees Association in the event of its return to active existence We hereby rescind our rule against union solicitation in the plant, insofar as it extends to the employees' non-working hours We will not give effect to any and all contracts, supplements thereto or modifications thereof, with Independent Steel Workers' Alliance. We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Farm Equipment & Metal Workers of America, C. I. 0 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 All our employees are free to become or remain members of this union, or any other labor organization KLYsTo-mr STEEL &C WIRE COMPANY, .A CORPORATION (Employer) By Dated (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.