Canegie-Illinois Steel Corp.

CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 763 lectively with the Union in an effort to agree upon new piece rates. On the other hand, the General Counsel and the Union contend that, in addition to the usual cease-and-desist requirements, the Respondent should be required to restore immediately the contract piece rates of 79 cents, with 85 cents for "windfalls," and to appropriately reimburse Stonelake and other power saw buckers who have been compensated improperly under the lower rates. The Bolton case, cited in footnote 5, is dispositive of the issue in part. Upon authority of that case, I shall recommend that the Respondent immediately restore the contract rates. I believe also that in order to restore the status quo and to effectuate the policies of the Act by assuring that the Respondent not retain the fruits of its unfair labor practices, the Respondent should be required to reimburse each power saw bucker for the difference in pay between the amount he earned under the piece rates set forth in the contract and the amount he was paid, from the date the unilateral rates of pay were instituted by the Respondent to the date of restora- tion of the contract rates. I shall recommend accordingly. Except for the unlawful conduct of the Respondent herein described, the record does not disclose that a danger exists that the Respondent may commit unfair labor practices unrelated in kind. Accordingly, I shall not recommend that the Board issue a broad cease and desist order. Upon the basis of the above findings of fact and the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's employees at its Siltcoos Division, except supervisory and office employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Union, at all times since 1941, has been the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing.to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting coin- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) and FRANK BORIO, ET AL. Case No. 13-C-2798. July 31, 1951 Decision and Order STATEMENT OF THE CASE Upon a charge filed on February 21, 1946, by Arthur J. Goldberg, on behalf of Frank G. Borio and other individuals, hereinafter called 95 NLRB No. 92. 764 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD the Complainants, the General, Counsel of the National Labor Rela- tions Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued his complaint dated February 8, 1950, against Carnegie-Illinois Steel Corporation (Joliet Coke Works), herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) of the National Labor Relations Act (49 Stat. 449), hereinafter called the original Act, or the Wagner Act, and Section 8 (a) (1) and (3) of the Act as amended (61 Stat. 136), hereinafter called the amended Act. Copies of the charge were duly served upon the Respondent on June 27, 1947. Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and Arthur J. Goldberg on February 8, 1960. With respect to the alleged unfair labor practices, the complaint alleged, in substance, that the. Respondent : (1)' On February 16, 1946, suspended, and on March 18,' 1946, discharged, 21 foremen and supervisors and 28 guards or watchmen,' and thereafter , failed and refused to reinstate them, because they concertedly ceaed work for their own mutual aid 'and protection as well as for the mutual' aid and protection of the Respondent's rank-and-file employees who went on strike on January 20,`1946, for the purpose of discouraging such concerted activities as well as membership in the United Steelworkers of America, CIO, herein called Steelworkers; (2) from about Jan- uary 14, 1946,.to the date of the complaint, engaged in a continuous course of interference, restraint, and coercion of its employees in the exercise of their rights to self-organization by revising its plant rules, particularly one prohibiting the use of intoxicating beverages, by threatening violence and reprisals, and by interrogating various of the 'Complainants regarding their concerted activities. On February 21, 1950, the General 'Counsel amended his complaint to include one George Sweeney as a Complainant. On March 6, 1950, the Respondent filed its answer to the complaint, which, while admitting certain allegations thereof with respect to the nature of its business, denied that the Respondent had engaged in any unfair labor practices. ' Pursuant to notice, a hearing was held at Joliet and Chicago, Illi- nois, on various dates from March 7 to May 5, 1950, before Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Ex- aminer. The General Counsel, the Respondent, and the Complainants were represented by counsel and participated in the hearing. All The General Counsel moved to dismiss the complaint as to five guards named in the complaint ( Kramer, McGuckin , Carter, Hartley, and Sharp ).. Tlie Trial Examiner granted .the motion and his ruling is hereby .afrmed., CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE. WORKS) 765 parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and' to introduce evidence pertinent to the issues.2 At the beginning of the hearing, the Trial Examiner granted a motion by the General Counsel to strike portions of the Respondent's answer which included assertions that the complaint was barred by lathes, that its issuance was not in the public interest, that supervisory employees are not protected by the amended Act, and that a variance existed between the complaint and the charge.3 The General Counsel rested his case on March 14,1950, and the hear- ing was recessed until March 27, 1950. On March 30, 1950, during the presentation of the Respondent' s case, the General Counsel moved to amend the complaint to delete reference to the Complainants as "foremen and supervisors," and to describe them instead as "Group One Employees." The Trial Examiner granted this motion as well as motions by the Respondent to amend its answer accordingly, and to adjourn the hearing to May 1, 1950. On April 12,1950, the Respond- ent filed its supplemental answer to the complaint as last amended. Upon resumption of the hearing on May 1, 1950, the General Counsel moved to dismiss certain allegations` of the answer. The Trial Ex- aminer reserved ruling upon this motion: On October 24, 1950, the Trial Examiner issued his Intermediate Report, recommending that the.complaint be dismissed in its entirety. Thereafter, the General Counsel, the individual Complainants, and the Respondent filed exceptions and briefs in support thereof. The Board has considered the Intermediate Report, the exceptions and briefs, and has carefully reviewed the entire record and finds merit in the exceptions filed by the General Counsel and the individual Com- plainants. Because of the extent of our disagreement with the find- ings, conclusions, and recommended order of the Trial Examiner, we make our own findings, conclusions, and order, as follows : FINDINGS OF FACT 4 ' I. THE BUSINESS OF THE RESPONDENT The Respondent, Carnegie-Illinois Steel Corporation, a 'New Jersey corporation with its principal executive offices in Pittsburgh, Pennsylvania, is engaged in the manufacture, sale, and distribution of z The request for oral ,argument by the parties is hereby denied as the record and the 'briefs, in our opinion , adequately present the issues and the positions of the parties. a We agree with the Trial Examiner 's ruling on this motion . 44 In making the findings herein, the Board has considered and weighed the entire evidence. It would needlessly burden'this Decision and Order to discuss all the testimony on disputed points . Such testimony or other evidence as is in conflict with our findings, and is not specifically discussed hereinafter , is not credited. . 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steel, coke, coke byproducts, and steel products, in the course of which it operates numerous steel and coke plants in various States of the United States. It is a subsidiary of United States Steel Corpora- tion, a New Jersey corporation. It operates various coal yards, docks, furnaces, a railroad, and facilities for the manufacture of coke, chem- icals, gases, and other byproducts in its plant located at Joliet, Illinois, called the Joliet Coke Works, the only operation directly involved in this proceeding. The Joliet plant is a subdivision of the coke division of the Respondent's Gary (Indiana) Steel Works. The Respondent- .sells and transports large quantities of its products in interstate com-. merce from its Joliet, Illinois, plant. We find that the Respondent is engaged in commerce within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The foremen 1. The 1946 steel strike In January 1946 there were approximately 47 foremen at the Joliet Coke Plant of the Respondent. They were not organized and had no collective bargaining representative. Steelworkers had two locals there : Local No. 1329 certified by the Board as bargaining representative of the production and maintenance employees, and Local No. 3082 certified by the Board as bargaining representative of the salaried clerical employees. This was about 19 months before the effective date of the amended Act. The Joliet plant was one of many plants involved in the Nation-wide strike called by Steelworkers, which, though originally scheduled for .January 14, 1946, began on January 21, 1946, at 12: 01 a. in. 2. The prestrike negotiations Early in January 1946, in anticipation of Steelworkers' strike, the Respondent negotiated with Steelworkers as bargaining representative of its rank-and-file employees for the purpose of making arrangements, -for protecting the plant during the impending strike .5 On January 10, Superintendent Herbert. Jones of the Joliet plant, General Super- intendent Jenks, Division Superintendent Burress, and De Toffol, assistant in charge of industrial relations, met with Steelworkers' Dis- trict Director Krzywonos, Spiezio, president of Local No. 1329, and other union officials, and discussed the number of rank-and- file em- ployees needed to protect the plant. A few days later another such 5 The facts concerning these negotiations, except in the respects indicated hereinafter, were not in substantial dispute. CARNEOIE-ILLINOIS STEEL CORPORATION (JOLIET COKE, WORKS) 767 meeting was held at which the parties discussed alternative arrange- ments in the event natural gas were used as a substitute for coal in heating the batteries during the • strike. On Sunday, January 20, a final meeting between the Respondent and Steelworkers was held. The. Respondent advised the Union that it was unable to procure natural gas and the discussion reverted to the original plan which called for the use of 105.rank-and-file employees, exclusive of supervisors and guards, to man the plant on a 3-shift basis during the strike. The Respondent presented Steelworkers with a schedule of the production and maintenance jobs to be filled and a list of employees qualified to fill them. George Jones, a member of the Respondent's industrial relations staff in Chicago, then asked the union representatives if they would allow nonunion men to enter the plant during the strike, and they replied, in substance, that their union was 100 percent organized in the plant, indicating that this problem was therefore inconsequential.' Leiss, president of the clerical employees' local, then mentioned that there was one nonmember, Patmore, in his unit, but Spiezio and the other union representatives said that they would not have any trouble with him so long as he was not scheduled to work. Patmore's name did not appear on the schedule furnished to the Unions Jones left for about 10 minutes; and when he returned, he asked if. the Union "would allow any men from the Carnegie-Illinois Steel Corporation to enter the plant." Krzywonos asked Jones if that meant workers from Gary and South Chicago, and Jones said that it did. Krzy- wonos then stated, "No, they wouldn't be allowed to enter the plant." Jones thereupon terminated the meeting.' 3. The 72-hour ultimatum In the meantime, on January 19, the foremen, were notified by their superiors to be present at a meeting to be held at the plant about 10 a. m., on Sunday, January 20, and to bring to the plant sufficient personal belongings for an indefinite stay in the plant. On Sunday morning the foremen arrived in response to this notification and congregated in an anteroom to Superintendent Jones' office where they waited for the conference between the representatives of the The Trial Examiner stated that the schedule submitted to Steelworkers included the names of three employees for whom the Respondent had no checkoff authorizations "and whom it must be presumed that the Respondent did not know were union members, if they were." 7 On this subject, Superintendent Herbert Jones testified that no question had been raised at this meeting as to whether the Respondent intended to bring in "outsiders." His assist- ant, De Toffol, testified that the Respondent 's position was that it had the right to schedule any employees and that s, teelworkers insisted only on union members ; he was not speci i' as to whether or not outsiders had been discussed . George Jones did not appear or testify at the hearing. The Intermediate Report makes no mention of the .testimony as to "outsider. " 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent and Steelworkers. to end., All the foremen were present, with the exception of a few who were- on duty during the 7 a. in. to 3 p. in. shift. When the meeting ended, Spiezio and Krzywonos, on their way out, told the foremen what had occurred. Shortly there- after, the foremen gathered in Superintendent Jones' office. There, George Jones announced that management had met with Steelwork- ers' representatives, that they had been unable to reach an agreement whereby the rank-and-file would maintain the plant during the forth- coming strike emergency, that lie told the Union that he wouldn't need any union men to protect the plant, and there were enough super- visors to operate the plant, and that they (the supervisors) were ex- pected to do so. Foreman Ted. Girard then asked Jones if the reason management planned to have the foremen stay in there was "to cool the ovens down," and Jones replied, "absolutely not." George Jones and De Toffol then left. Superintendent Herbert Jones, who re= mained, was then again asked, this time more specifically, whether the Respondent was going to produce gas in the No. 3 battery with the intention of slowly cooling down the other three batteries, and Super- intendent Jones replied that there was no such intention. When asked why, he terminated the meeting and stated that he wanted to see all of the foremen in his office, one at a time. Immediately thereafter, Superintendent Jones called the foremen in and asked each one, individually, in substance, whether he would stay in the plant on a 24-hour basis and do whatever work was required of him. Some agreed, others were uncertain, and still others refused to commit themselves. Following these interviews, about 25 to 30 foremen gathered in the basement of the superintendent's building and discussed the matter of cooling down the batteries during the impending strike. One of them, Sweeney, testified that there was a belief among the foremen that if the Respondent would cool down the batteries during the first 3 clays of the strike the amount of rank-and-file work they would be required to do during the strike would gradually decrease as the bat- teries cooled, and that after about a week such work would be "rela- tively slight." At this meeting of the foremen on the eve of the rank= and-file strike this feeling was general among them. Foreman Anthony Borio testified that "nobody felt that they should stay in there as long as the Company did not intend to cool down the batteries. That seemed to be the issue from the start." Some of the men were in favor of leaving immediately but others took the posi- tion that they try staying on for a few days. The opinion was expressed that as supervisors "we should do supervisory work . . they didn't want to'do rank-and-file work." CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE- WORKS) 769 , After some discussion, it was decided by the group that Foremen Sweeney, Adrian Ryan, and Zivec, represent them and apprise manage- ment of their position.' In accordance with this decision, the three spokesmen went to see Boswell, their general foreman. They asked Boswell whether he was going to get natural gas as a substitute for coal-an alternative that would have reduced the need for rank-and- file work during the strike by the foremen to a minimum-and Bos- well replied that he did not think that was possible. They thereupon advised him that they would stay for a period of 72 hours only, unless he could persuade Superintendent Jones to start cooling down the batteries. General Foreman Boswell told them that he would talk to Jones. He left for several minutes. When Boswell returned, he gave them no direct answer but stated that he would proceed to draw up a work schedule to last only 3 days "if the foremen really meant what they were saying." Many of the foremen were assigned during the strike to the electric station and that evening, January 20, in the electric station, they again discussed the 72-hour proposal. Foremen Ryan and Sweeney reported on their discussion with General Fore- man Boswell. They said, "Well, we told Boswell this afternoon while you fellows were working . . . that we wouldn't stay any more than 72 hours, and we told him to tell Mr. Jones, that, and he said he did." The foremen assured each other of their determination to walk out after the 72-hour period unless the Respondent commenced cool- ing down the batteries. Shortly thereafter, at 12: 01 a. m., January 21, the rank-and-file strike began. The foremen stayed in the plant after the strike 'began and per- formed the duties assigned to them. However, the next evening they met again in the electric station; some who had not been present at the meeting of the night before learned of the planned walkout, others who had taken part in the meeting were there to obtain as- surance that their decision would be carried out. Some of the foremen who did not sleep in the electric station learned about the planned walkout from discussions among the foremen throughout the plant. 4. Conditions at the plant during the strike. The discontent among the foremen, engendered by the refusal of the Respondent to accept their proposal and by what appeared to the 8 The recital of the circumstances surrounding the meeting between the representatives of the foremen and General Foreman Boswell on January 22 is based, for the most part, on the testimony of Foremen Sweeney, Adrian Ryan, and Zivec. Boswell testified that he met with the foremen on January 22, but described the so-called ultimatum as one given by the Union. Like the Trial Examiner, we credit the foremen's version of the meeting. 770 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD foremen an unwillingness to use natural gas, was intensified during the first 3 days of the strike by the character of the work they were required to do, the sleeping and eating conditions in the plant, the requirement that they remain there on a round-the-clock basis, and the 12-hour and longer shifts that went into effect when the rank-and- file employees stopped work.9 ' During the first 3 days of the strike the foremen did work normally assigned to rank-and-file employees. Thus, Anthony Borio worked as a "screening station operator" ; Sweeney worked as a "door extractor operator" ; Randolph worked as a No. 3 pusher and he also kept. the walk clean and helped mix mud; Vanderhyden worked as a coal handler, running the conveyor belt; Adrian Ryan ran a larry car under the coal tanks ; Vincent Ryan acted as a damperman ; Mandus Girard acted as "coal transfer operator," transferring coal from the stockpile; Botusich did labor work, put coal in the coal crusher, ran the crusher, and ran the coal down the tanks; Petrie ran coal from the crusher house to the tank, operated conveyors, and put coal through the tanks; Krizmanic worked in the boilerhouse, shoveling and cleaning the ashes, running the cranes, feeding the boiler, and getting the coal up the hopper; Zivec heated 4 batteries, controlling gas, checking ovens, and also helping on the pusher side of the battery ; Buric and Peter Tomasich worked in the boilerhouse, Byczinski ran the hot car, helped at the screening station, and spelled off on-the No. 3 door extractor; Frank Borio kept the gas, house running, draining tar mains, pump- ing the system, running up to the boilerhouse, and steaming the lines out. In all, the 47 foremen, according to the record, did the work of approximately 105 rank-and-file employees. A number of-foremen slept in an area approximately 16 by 25 feet in the electric station where, according to the testimony, it was "very, hot" and the generators were constantly going and making consider- able noise. Several foremen shared the same cot. Botusich slept on! a bench in the coal hopper because he had no available cot. Vander- hyden slept in an office. Mandus Girard, Shields, Beck, Williams, and Romano slept in the chemical laboratory where there was very little heat "but the windows and everything in the building was so damn loose and open, it was zero a couple of nights." There were insufficient covers. Krizmanic slept in the coal hopper shed located about 30 to 50 feet from the Santa Fe trains, which passed by fre- quently during the night' and made sleeping 'difficult. Buric slept on an army cot in the machine shop, and because of the cold slept in his clothing ; he complained about this to General Foreman McDowell. e There was no substantial conflict in the record with regard to the condition in the plant during the first 3 days of the strike. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 771 The foremen described the food served during the 3 days in question as "unclean" and "greasy,," consisting mostly of pork and eggs, and prepared by persons without experience. Vanderhyden was told by Superintendent Jones "to throw one pork loin into the 23 crane" be- cause "it was spoiled." Joseph Tomasich testified that "most of the boys were leaving because they said they couldn't take it. I don't think they could take it because it was impossible." 5. The walkout The foremen remained in the plant during the first 3 days of the. strike despite these hardships. On January 22, De- Toffol called Spiezio and arranged another meeting with Steelworkers. At the meeting, Superintendent Jones and De Toffol stated that they had heard that some of the foremen, were going to walk out at the end of the 72-hour period "because the union would then classify then as scabs," and Spiezio attempted to. correct him by saying he (Spiezi.o) "understood the foremen had told [management] to start cooling the batteries down within 72 hours or that they would walk out." Superintendent Jones then asked the union representatives if they "would talk to the foremen and try to influence them to stay in the plant for an additional 72 hours."' Spiezio asked whether, if that were done, they would start to cool the batteries down, and Jones replied that they would not. At this point,. Spiezio stated "there wouldn't be any sense in us talking to the fore- men to stay in the. plant 72 hours if they still wouldn't start to cool, the batteries down." After this meeting, Steelworkers, with the con- sent of the Respondent, met with several of the foremen (Adrian Ryan, Cox, and Vanderhyden), in the presence of both Jones and De Toffol. The union representatives asked the foremen what their intentions were, and the foremen advised them that "if management wouldn't start to cool the batteries before the following day at midnight [Wed- nesday, January 23] . . . they were going to walk out." About noon on Wednesday, January 23, Adrian Ryan went to see Superintendent Jones and told him "we [the foremen] were leaving I told him I was speaking for some of the foremen, and he said,. `You are not speaking for anybody but yourself.' " Ryan thereupon told Jones, according to Jones' own testimony, that "he understood that 18 or 19 foremen altogether were going to leave at midnight." Jones also testified that General Foreman Boswell had previously stated to him, on January 21 or 22, that he "was afraid some men were going." About 2: 30 in the afternoon of that day, Anthony Borio walked in to see Jones and told him, "I'm taking off tonight at mid. night. I can't take it any more. None of the issues have been settled." 961974-52-vol. 95-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borio testified, "The issue 'was the ultimatum to cool down the other three batteries." ' . At about midnight that day (January 23), 17 foremen walked out. In addition, Frank Borio, Hausser, Ted Girard, Krizmanich, and Botusich had left a few hours earlier after the completion of their shifts and after ascertaining that the others were leaving at mid- night, and indicated that they intended to be part of the walkout 10 Twenty-five foremen remained in the plant. B. The guards 1. The duties of the guards In January 1946 there, were 28 guards at the Joliet plant, all under the supervision of Superintendent of Plant Protection Nicholaisen. The duties of the guards were: To patrol the plant; to prevent thefts, acts of negligence, and fighting among employees; to see that em- ployees had proper passes; and to obtain compliance with safety rules. Like the foremen, they,were excluded from the units represented by Steelworkers. They too were unorganized and had no bargaining representative. - 2. Conditions at the plant during the strike The guards remained at the plant after Steelworkers' strike began. During the strike, they did the kind of work customarily performed by them before the strike. However, they were placed on two shifts of 12 hours each, instead of their normal three shifts of 8 hours each. They stayed in the plant, for the most part, on a round-the-clock basis. Most of them slept in the accounting office, some in the superintendent's garage, and a few in the firehouse. The accounting office was a room 30 by 30 feet. Because of the "shape the mattresses were in . . some slept on the desk." According to guard Kenney, the "food was greasy; it wasn't cooked and we would be there watching how it was prepared, and the way the dishes were dirty and wiping them-the rags were black, so we decided we would-'start eating by ourselves, and we had food-we sent the driver out, and he brought in ham and eggs and coffee and butter and everything, and we start eating in our squad room, a bunch of us." The guards paid for their own food." 10 The testimony both of the General Counsel's witnesses and the Respondent 's witnesses was in substantial accord as to the circumstances immediately preceding the walkout of the foremen. 11 There was no substantial dispute as to the working conditions . of the guards during the period they stayed in the plant after the strike of the rank -and-file employees began. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE. WORKS) 773 3. The arrival of the Gary men and the walkout of the guards On Wednesday, January. 23, some of the guards heard that the Re- spondent was preparing to bring strikebreakers into the plant. They discussed. this among themselves, saying that if strikebreakers were brought in to work at the batteries "and there was any trouble, we wouldn't stay." When at various times during that day some of the guards received instructions to count the number of pickets posted not only at the regular. plant entrance but also at a seldom used towpath road entrance, and not to let the pickets know this was being done, the guards expressed even greater concern, and "talked it over there different times . . . that if they ever brought in scabs that we weren't going to protect them; we were there to protect the'Company property and not them [strikebreakers], and we'd leave if they ever did that." Among the guards that discussed this were Kenney, McGowan, Abday, Maloney, Holler,. Gruenwald, McGuckin, Kurtz, Lockwood, Latz, Woock, and Kellner. As a result of these discussions, the guards de- cided among themselves that if outsiders arrived, they would leave. About 1 a. ni., Thursday, January 24, guard Gruenwald accosted Superintendent Nicholaisen and accused him of letting the men down, saying, "They are bringing men in here." Nicholaisen denied that this was so, and immediately called the guards together at his office. There, Gruenwald again asked him-this time in the presence of all the assembled guards-"if they were going to bring any strikebreak- ers." Nichola.isen assured them that the Respondent would never do that. He said, "No, as large as this Company is, they wouldn't think of doing anything like that." Thereupon, the guards brought up the subject of wages during the strike period, contending that if they had to stay there 24 hours a day, they should be paid for 24 hours a day. Nicholaisen said he would communicate with the Respondent's Pitts- burgh office and let them know within 24 hours. About 3 hours later--at about 4. a. m.--a group of 25' persons, es- corted by a number of State police, and riding in private and police automobiles, were brought in by the towpath entrance in the rear of the plant. Neither the 25 men nor the police showed any credentials. One of the guards, McGowan, who was in the gatehouse at the time, heard someone shout, "Here they come!" He ran inside, woke up many of the guards, went into the squad room and got his belongings, and walked to the front of the clockhouse. There, seeing Nicholaisen, he derided him "about the wonderful speech he had made a short time before when he told us he would never let us down." Nicholaisen said nothing. In the meantime, other guards were alerted by cries of "Let's. get out of here. The state cops brought in a bunch of scabs" 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and "Get up, the state troopers are here on the plant." They dressed hurriedly and got out.. Guard Kenney meanwhile called to be relieved. at the office switchboard where he was stationed, and went out on the ramp. State police were gathered on the ramp outside the plant, and guard Diess overheard one of them say, "We have tear gas; we will try that first." Another trooper said to the guards, "We're taking over here." When the guards expressed anger at this turn in events, Super- intendent Jones and De Toffol protested that they had not known about it and had nothing to do with it. Division Superintendent Burress, who had come with the group of 25 and the police, then addressed the guards, asked them not to leave, and assured them that "there was no need to be disturbed." Nevertheless, as pickets approached, Burress also stated to the guards, "The only way we can stop it, if you break a, few of their skulls open, they will stop, and they will forget it in a hurry." It developed at the hearing that the group of 25 men who arrived at the plant on January 24 consisted of supervisors from the Re- spondent's plant in Gary, Indiana, and had been brought to Joliet for the purpose of replacing the foreman who had walked out about 4 hours earlier. However, the guards testified that they did not know at the time that the 25 were Gary supervisors, nor did they recog- nize Burress, who brought them in, as the Respondent's division su- perintendent.12 Indeed, guard Kurtz testified that he asked both Superintendent Jones and De Toffol who these men were and neither Jones nor De Toffol knew. The guards testified that the use by strangers of the towpath road never before used for entering the plant, their failure to show credentials, and their heavily armed po- lice escort, convinced them that they were the strikebreakers rumored to arrive. They testified further that Burress did not identify them, nor did they feel any need for making further inquiry because they heard Superintendent Jones "arguing with Mr. Burress that they should be removed from the plant." After a brief interval, all of the guards, 28 in number, left the - .plant. 72 The principal conflict in the testimony concerning the Gary men involved the question. whether the guards knew who they were and whether the guards knew the identity of Burress who arrived with them. The guards testified, for the most, that they did not recognize Burress ; some of them, however , admitted, that shortly after he arrived that morning he had addressed a group of guards and related what he had said in the course of his talk. All the guards who testified denied that they knew that the 25 men from Gary were supervisors at the Gary plant. Even if the guards knew or had reason to. believe that Burress was one of the Respondent 's officials, it does not follow from this that they would be chargeable with knowledge that the 25 men were Gary supervisors. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 775 C. Events following the walkout of the foremen and guards 1. The change in operations About daybreak on January 24, shortly after the walkout of the guards, the Respondent sent away the 25 Gary men.13 This occurred before any of them did any work. The Respondent then decided to do what it. had advised the foremen it would not do-cool down all the coke batteries, retarding the process as much as possible. Be- ginning with January 27 or 28, it began using such supplies of butane gas as it had on hand, spreading it out among the 4 batteries and giving preference to 1 battery by which it had up Othat time been pushing coke 14 2. The suspensions, interviews, and discharges On February 15, 1946, the Respondent sent identical letters to all the foremen and guards who had walked out, as follows : Your conduct in leaving your position and assigned duties during the current strike has caused management to suspend you from all further duty until you are otherwise notified. Upon termination of the strike, your case will be carefully investigated, and-should evidence disclose that you, in manage- ment's judgment, were derelict in your duty, you will be promptly terminated. On the other hand, should the evidence prove other- wise, your case will be handled accordingly. Steelworker's' strike ended on February 18, 1946. Between March 8 and March 11, the Respondent called in for interviews all the fore- men and guards who had walked out, except Allison. 'In the case of the foremen, General Superintendent Jenks, Burress, and Herbert Jones conducted the interviews, and, in the case of the guards, Nicholaisen took the place of Jones. The foremen and guards were asked to explain why they had left their jobs at the time of the strike '15 and, according to both Jenks and Herbert Jones, they were asked "in most cases" whether they would do the same thing if a strike 18 One of the guards, Kenney , testified that during the morning of January 24, he telephoned the plant and told Superintendent Jones or Nicholaisen , "now that the men [from Gary ] were out I would go back to work and I-knew of a lot of fellows that would go back now that the men were out." Jones replied that he didn't need them ( the guards), that the "pickets were doing a better job protecting the plant than [ the guards] did." This work was done by the 25 - foremen who did not join in the walkout on January 23. is Jenks testified that he was interested in determining in each case whether the individual had previously agreed to work during the strike emergency to protect the equipment, whether or not he had later failed to carry out assigned duties, and whether there were any excusable reasons for his action. 776 DECISIONS ; OF" NATIONAL LABOR 'RELATIONS BOARD situation arose again. Jenks explained that their answer to the latter question had very little, or ho weight in making the decision to dis- charge, but that the question was asked "from the standpoint of curiosity as much as anything else." . Jenks could not recall any other questions that were asked out of curiosity. Thereafter, on March 18, the Respondent discharged 47 of the 50 foremen and guards named in the complaint,!'- writing them, in part, as follows : You are hereby notified that you were suspended as of Febru- ary 15, 1946. In accordance with our letter to you, advising you of your suspension, we have carefully reviewed the evidence sur- rounding your case, and our conclusion is that your failure to perform your responsibilities to this Company, during the emer- gency created by the recent strike, -warrants termination of your employment with this Company. You are therefore discharged, effective today, March 18, 1946. D. The principal contentions of the parties The General Counsel's principal contention is that the foremen) and guards were discharged. because they had engaged in protected concerted activities for their own mutual aid and protection, and that. their discharge was therefore unlawful. Relying on the decision of the majority of the Board in a recent case involving its plant at Gary, Indiana,17 the Respondent contends that the foremen were in fact "supervisors," and that, as such, they owed a duty to the Respondent, under the decision in the Gary case, to comply with all reasonable instructions designed to protect the Re- spondent's property from imminent danger of destruction during the, strike, and that by breaching that duty the foremen forfeited the protection of the Act. The Respondent makes the same contention with respect to the guards. The General Counsel asserts, in rebuttal, that the foremen we're not supervisors, and therefore owed no special 'duty to protect the plant during the strike, and that the Gary case is distinguishable on other grounds as well. E. The Trial Examiner's findings As to the foremen, the Trial Examiner found, in substance, that the foremen were supervisors; that the negotiations between the Re- spondent and Steelworkers for maintaining the batteries safely dur- 16 The three others, Peter Tomasich , V. Ryan, and Kramer, were reinstated to their former jobs about this time. 17 Carnegie-Illinois Steel Corporation, Gary Steel Works, 84 NLRB 851, affd. in Albrecht v. N. L. R. B., 181 F. 2d 652 (C. A. 7). CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 777 ping the' strike broke off because of the Union's insistence that only union members be permitted to pass through the picket lines, and that the Respondent was within its rights in rejecting "the Union's conditional offer"; that the foremen had expressed in varying manner their intention to remain in the plant during the.strike and to do whatever was required of them, at least for the immediately ensuing period; that at the outset of the strike the foremen through some of their number demanded of the Respondent that it start cooling down the batteries within a 72-hour period; that during the 3 days the fore- men remained in the plant they worked on an abnormal schedule and under difficult eating and sleeping conditions; that when no assurances that the Respondent would start cooling down the batteries were forthcoming, the foremen walked out at the end of the 72-hour period; that danger of material damage exists when coke ovens are cooled down, even when the process is under control, and that there is "more probability of fire or explosion in cooling down batteries than in nor- mal operations"; that there was no limitation on the Respondent's right under the law to use the personnel which ordinarily supervised the batteries to obviate such dangers; and that assuming, but without finding, that the foremen, in refusing to work,, engaged in concerted activities, such activities were not protected. As to the guards, the Trial Examiner found, in substance, that they, like'the foremen, were on duty in 2 shifts of 12 hours each although their normal schedule called for 3 shifts, of 8 hours each; that during the strike, after the group of about 25 men from the Gary plant ar- rived at the Joliet plant, the guards walked out because of "sympathy for the rank and file strikers, dissatisfaction with living conditions in the plant, and disinclination, for family or personal reasons, to stay in the plant 24 hours a day"; and even assuming, as in the case of the foremen, that the guards, in refusing to work, engaged in concerted activities, such activities were not protected. Exceptions were filed by the General Counsel and the charging parties taking issue with the Trial Examiner's principal finding as set forth above. Exceptions were also filed by the Respondent. F. Conclusions as to the foremen 1. The supervisory status of the foremen The highest official at the Joliet plant at the time of the 1946 steel strike was Superintendent Herbert Jones. He was assisted by. De Toffol who was in charge of industrial relations. Under them were four general foremen: Boswell, in charge of batteries ; Shields, gen- eral foreman of byproducts ; Mandus Girard, general foreman of coal handling; and McDowell, general maintenance foreman. Below 778• DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boswell were the assistant general foremen who ranked above the battery foremen and heater foremen.. Below Shields were the by- product foremen; below Girard, the assistant coal handling and yard foremen; and, below McDowell, the maintenance and assistant main- tenance foremen. All the foremen involved in this proceeding were on a level below those named above except Anthony Borio, who was an assistant general foreman and Girard who was a general foreman. Although none of the foremen below the rank of general foreman -had authority to hire, discharge, or effectively to recommend such action, they participated in the hiring of new employees after pros- pective employees were first screened at the employment office, and had the right to discharge new employees summarily during a 260-hour -probationary period. The foremen prepared records of positions filled and hours worked by employees in their crews, showing assign- ments and changes made by the foremen during their turns. They had authority to send employees home for insubordination or refusal to do assigned work. They made written reports of safety rule viola- 'tions and could request a written warning; however, if anything more drastic than a. warning was recommended, such action had to be decided by the plant superintendent. Some foremen, responsibly directed the work of other employees, their crews varying from 2 to 25, except for Mandus Girard, who had 45 to 55 subordinates. They were Tesponsible for the enforcement of safety rules, attended safety meet- vings conducted by the plant superintendent, and, in turn, conducted safety meetings for the employees under their direction. They were, for the most part, paid an hourly rate not substantially higher than the rate accorded the production and maintenance employees. In 1942, the Board in a representation proceeding 18 excluded the foremen from -the production and maintenance unit because they were super- visors. They have been excluded from membership in Steelworkers for the same reason. In January 1946, the foremen were excluded from the bargaining units by agreement between the Respondent and Steelworkers. We find, in agreement with the Trial Examiner, that the foremen were supervisors within the meaning of the original Act and the amended Act. 2. The nature of the foremen's activities . This proceeding arose under the Wagner Act, and the rights and duties of the foremen are therefore considered in the context of that Act, rather than the present amended statute. The events in issue all occurred early in 1946. Is Carnegie-Illinois Steel Corporation, 42 NLRB 1242. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 779 The Supreme Court has held that the Wagner Act left "no room for a construction . . . to deny the organizational privileges to employees because they act-in the interest of an employer."' Thus, the Court stated : Even those who act for the employer in some matters, including the service of standing between' management and manual labor, still have interests of their own as employees. - Though the fore- man is the faithful representative of the employer in maintain- ing a production schedule, his interest properly may be adverse to that of the employer when it comes to fixing his own wages, seniority rights or working conditions. He does not lose his right to serve himself in these respects because he serves his master in others. And we see no basis in this Act whatever for holding that foremen are forbidden the protection of the Act when they take collective action to protect their collective interests.2° [Emphasis added.] The Board and the courts have consistently held that Section 2 (3) of the Wagner Act included "supervisors" as "employees." As an "employee,", a supervisor was protected in joining a rank-and-file union,21 joining in a rank-and-file strike on behalf of the rank-and-file union to which he belonged; 22 joining with other members of a fore- men's union to assure rank-and-file strikers that the foremen belong- ing to another union would not take their jobs; 23 and joining other foremen in a strike, primarily for their own mutual aid, against per- forming rank-and-file work during a rank-and-file strike.24 The Trial Examiner, however, adopted the Respondent's principal contention that under the facts of the case at bar, special circumstances were present which deprived the foremen of the protection of the Wagner Act, and that the foremen were therefore lawfully suspended or discharged. The Trial Examiner relied on the Board's decision involving the Gary plant of the same Respondent 25 In that case, a majority of the Board held a walkout by supervisors during a rank-and-file strike not protected by the Wagner Act, stating: .. . in the case at bar, we believe the complainants owed a duty to the Respondent, inherent in their position as supervisors, to comply with all reasonable instructions designed to protect the Respondent's physical plant from imminent damage or destruc- ' Packard Motor Car Co. v. N. L. R. B.,- 330 U. S. 485. 20 Id. at pp. 489-490. 21 Fruehauf Trailer Company, 1 NLRB 68 , 76, enfd . 301 U. S . 49, 55. 22 Mackay Radio & Telegraph Company/, 1 NLRB 201 , 222-225 , enfd. 304 U. S . 333-347. 21 American Steel Foundries v. N. L. R. B., 158 F. 2d 896 ( C. A. 7), enfg. 67 NLRB 27, 68 NLRB 514. 24 E. A. Laboratories, Inc., 87 NLRB 233. 25 Carnegie-Illinois Steel Corporation, Gary Steel Works, supra (Chairman Herzog and Member Houston dissenting). 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. Certainly, if' the supervisors had been discharged for wilfully or negligently damaging the Respondent's blast fur- naces or coke ovens, we would have no hesitation in finding that such discharge was for good cause ... The case is no different in principle if, as in the case at bar, the supervisors, knowing that the furnaces and ovens, unless properly banked or closed down, would suffer serious damage, deliberately and concertedly, and contrary to their employer's instructions, refuse to cooperate with other supervisors in the ' work necessary to prevent . such damage. However, the decision in the Gary case was expressly confined "to the particular facts of the supervisor's conduct involved therein," and the Board there pointed out that "our finding is not to be construed as a holding that any action whatsoever contrary to his employer's economic interests, through a strike or otherwise, will cause a super- visor to forfeit the protection of the Act prior to amendment." 26 Precisely stated, then, the issue before us is whether the conduct of the foremen (and the guards) in the' instant case was so like that of. the foremen in the Gary case as to require us to find that by such con- duct they forfeited the protection of the Act. The Joliet plant produces coke, and the coke is then used in the production of steel at the Respondent's South Chicago plant. In the process of manufacturing coke, coke oven gas is necessarily pro- duced, and byproducts such as tar, ammonia, benzol, toluol, zylol, and naphtha are recovered from the gas. The plant consists prin- cipally of 4 batteries of coke ovens, each battery being composed of 70-ovens. Silica brick is the chief structural component of the ovens. 'In the Gary case, a much larger plant was involved, consisting, in addition to a coke plant, of 5 other main divisions. The coke plant in Gary included 15 batteries with a total of 1,055 ovens. Like the case at bar, one of the issues concerned the protection of the coke oven batteries. The Trial Examiner in that case cited the testimony of Superintendent Burress, who had been in charge of the Gary coke plant for over 30 years, that when the coke ovens go out of production they must be cooled as gradually as possible, that the silica brick is sensitive to temperature changes, and that, should the coke ovens ss The Board's decision in the Gary case was affirmed in Albrecht et al . v. N. L. R. B., 181 F. 2d 652 (C. A. 7). The court of appeals sustained the Board in its conclusion that the supervisors were not protected in their refusal to' perform the functions assigned them. It pointed out, however , that its review in cases such as. this "has relatively narrow limi- tations," and quoted from its decision in N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811 (C. A. 7) to the effect that "it is the function of the Board to weigh the conflicts that arise ,from time to time out of the exercise of those rights to determine in each case whether the interest of the employer or the interest of the employees is paramount ." [Emphasis added. ] CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 781 be suddenly abandoned, serious damage would result, necessitating very costly repairs.27 The Trial Examiner, in the, Gary case, further found that General Superintendent Jenks of the Gary plant, in his prestrike negotiations with Steelworkers regarding the staffing of the plant during the impending strike, "indicated that to furnish, gas for plant purposes and for the City of Gary, it would be necessary to operate three batteries of coke ovens," and that when Steelworkers' representative demurred to the extent of the proposed operations, Jenks explained "that it was essential to the safety of the plant to produce gas in suffl- .cient quantity to maintain such, temperatures in all the coke ovens as would allow the walls, built of silica brick, to cool very gradually." 28 [Emphasis added.] In the instant case, there was similar testimony as to the suscepti- bility of the silica brick to damage from changes in temperature. 'There was, in addition, much testimony concerning the feasibility of cooling down the batteries, gradually, as proposed by. the foremen in the instant case, and, by the Respondent itself only a month earlier in the Gary case. The Respondent's position here was that it was not feasible to cool ,down the coke batteries, and the only safe procedure was to maintain them at a temperature of between 1,600 to 1,800 degrees for the duration of Steelworkers' strike. Much of the Respondent's own testimony, however, was in conflict. Jenks testified that when silica brick is cooled from the operating temperature of 1,800 degrees Fahrenheit or more, it can be cooled uniformly down to 1,150 degrees Fahrenheit, but that from that point down to 200-300 degrees, the silica cools unevenly, and the problem is to cool it slowly enough to avoid strain on the brick. He testified that in the cooling process leakage may be -caused, thus decreasing the manufacturing capacity of the batteries. He also testified that the operating efficiency of the .Joliet batteries was about 90 percent before the 1946 strike and that since then it has not gone over 85 percent.. On the .other hand, Superintendent Jones in an-article written by him in 1938 (one of Respondent's exhibits) stated that the critical range for expansion and contraction of silica brick is between 400 and 800 degrees Fahrenheit; this differed con- from Jenks' testimony that a battery should not drop below 1,500-1,600 degrees Fahrenheit. Jones, in his article outlining a procedure for safe cooling, indicated that a cooling operation can be carried out successfully, stating : 17 Carnegie-Illinois Steel Corporation, supra, at pp. 925, 926. These findings were adopted In the majority decision. • -" Id. at p. 868. These findings were adopted in the majority decision. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The results to be worked for in cooling down a battery are to keep the temperatures as uniform as possible throughout the battery when it is being cooled down. Previous experience at Joliet has indicated that keeping the battery temperature as uniform as possible has eliminated most of the cracking that we find in batteries that are not cooled down under control. The record shows that the Joliet batteries were closed down com- pletely in 1932, were reopened in about 1938, and two batteries again shut down completely thereafter until shortly before the beginning of World War II, and that despite these shutdowns, no major repairs were necessary, and the plant was able to operate at 90 to 95 percent efficiency as compared to a completely new battery. As to leakage, it appeared from the testimony that leakage occurs also in the course of normal operations, increasing with the age of the batteries. On the subject of the life expectancy of the batteries, Jenks admitted that the expectancy at the. time. of the hearing in 1950 was approximately t, I the same as it was at the time of the 1946 strike. Finally, from the testimony of Respondent's witness, Touzalin, it appeared that in the year following the strike, production was at as high a rate as in the preceding year. Thus, in October 1946, the plant produced at the rate of .3,000 tons of coke daily, or 1,095,000 tons. annually, a rate as high as any achieved prior to the strike. .. From the foregoing, the following facts which we find are clear : That in refusing to accede to the foremen's request in the instant case for cooling down the batteries, the Respondent rejected the very procedure which it had itself proposed to use at Gary, only a month earlier; that after the foremen left the plant the Respondent did in fact adopt their cooling-down - proposal, and,' no serious damage to the batteries resulted and no. repairs were required. We are accordingly not satisfied that the method of operation chosen by the Respondent offered any advantages which justified the hard- ships it imposed on the foremen in terms of indefinite and continuous confinement in the plant under difficult living conditions. We find, therefore, that the Respondent's insistence that the foremen maintain the coke batteries at normal operating temperatures for the duration of the strike, rather than cool them down gradually, was not reasonable, under all the circumstances of the case, and that the foremen's refusal to comply with the Respondent's instructions to maintain the batteries at normal temperature, unlike the conduct of the foremen in the Gary case, 29 was not such a breach of their duty to management as to deprive .them of the protection of the Act. . 29 As already indicated the majority in that case found that the supervisors had violated their duty "to comply with all reasonable instructions designed to protect the Respondent's physical plant from imminent danger or restruction ." [ Emphasis added.] CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 783 Moreover, in Gary; the supervisors not only refused to obey Re- spondent's instructions to do rank-amid-file work during the strike emergency, but actually left the plant, without ascertaining whether anyone would remain to protect the will and prevent explosions and without giving theEmployer a reasonable opportunity to recruit re- placements. In that case, the unaffiliated Foremen's Association, which represented the supervisors, advised the Employer at 4 a. m. on January 21, after the picketing by Steelworkers had commenced, that its members would not be permitted to work beyond 6 o'clock that evening. This, in our opinion, is in marked contrast to the 72-hour proposal by the foremen in the instant case, accompanied by an offer to stay indefinitely in the plant, if the Respondent commenced at any time during that 72-hour period to cool the batteries. . Moreover, the Gary plant was engaged in rendering an essential service to the inhabitants of the city of Gary, Indiana, as it was the sole 'source of gas for that city. Here, however, the Joliet plant pro- duced gas solely for the operation of another of the Respondent's steel plants.in South Chicago, and an interruption of the operations of the Joliet plant would not, as in the Gary case, involve the discontinuance of an essential service to a community. We have no reason to doubt, and we find, that the foremen's walkout constituted a concerted activity. The foremen acted as a group in discussing, both before and during the strike, their common problems arising from the strike. They acted as a group in formulating a design to alleviate their working conditions, and in selecting representatives to meet with their supervisors. They held meetings for the purpose of determining what action to take, and they walked out-again as a group-at midnight of January 23, when the 72-hour period expired and top management failed or refused to accept their proposal. We are also satisfied and find that the activities taken in concert by the foremen were primarily in furtherance of their own mutual aid and protection, and only incidentally in furtherance of the interest of the striking rank-and-file employees.30 During the first 3 days of Steel- workers' strike, the foremen, experienced a radical worsening of their working conditions. Not only were they assigned to rank-and-file jobs, but they were required to do the work normally done by more than twice as many rank-and-file employees, and their daily tour of duty was increased from 8 hours to 12 hours. During the entire 3-day period,' they were confined to the plant, where, as already related, the eating and sleeping accommodations were of a primitive character. Faced 30 In view of this finding , we deem it unnecessary to pass upon the question whether the foremen's activity would have been protected if the primary purpose of their walkout had been to support the rank-and-file strike . See E. A. Laboratories, Inc., supra ; cf. N. L. R. B. V. Illinois Bell Telephone Company, 189 P. 2d 124 (C. A. 7). 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the prospect that these conditions would continue for the duration of Steelworkers' strike, they proposed to the Respondent a procedure-- the gradual cooling of the batteries-which promised some improve- ment in their lot during that period. Their walkout on January 23, can; therefore, be construed as primarily a concerted protest against the Respondent's rejection of their demand for better working conditions for themselves.31 We accordingly find upon the present record that the foremen's- walkout constituted protected concerted activity under the Wagner Act and the suspension and discharge of the foremen because of. such activity constituted interference, restraint, and coercion, within the meaning of Section 8 (1) of the Wagner Act. We also find that their suspension and discharge constituted discrimination in regard to hire or tenure of employment within the meaning of Section 8 (3) of the Wagner Act 32 Whether Respondent's conduct is deemed to be a. violation of Section 8 (1) or 8 (3) of that Act, we find that effectuation of the policies of the Act requires that the foremen be offered reinstate-. ment with back pay-" G. Conclusions as to the guards The Trial Examiner found in effect that, assuming that the guards, in refusing to work, engaged in concerted activities, such activities. were not protected by the Act. In support of this finding, the Trial Examiner cited only the Board's decision in the Gary case. That 81In the Gary case, some of the foremen , on the day preceding the strike , promised management to remain in the plant during the strike on a round-the -clock basis and to do whatever work was required of them during that period . The majority of the Board held that such foremen , by misleading their employer as to their intentions , had demonstrated their lack of dependability in an emergency, and for that reason were justifiably dis- charged. In support of this conclusion , the majority cited Greater New York Broadcasting Corporation, 48 NLRB 718, 720, where reinstatement was denied to a supervisor who failed to report for work during a strike, after leading his employer to believe that he would do so, on the ground that he had engaged in "deceptive conduct inconsistent with his duty to respondent as chief engineer." Some of the foremen in the instant case, according to the record , made promises similar to those made by some of the foremen in the Gary case. However, unlike the foremen in the Gary , case and the supervisor in the Greater . New York Broadcasting case, the foremen here, acting as a group , subsequently communicated to the Respondent their intcntion,of walking out if after 72 hours their "cooling-down" proposal. was not adopted . This was done on the day preceding the strike and at various times during the first 3 days of the strike . It cannot therefore be said that the foremen in the instant case misled the Respondent or engaged in deceptive conduct to the Respondent's- prejudice. 32 Such discriminatory action discouraged adherence to the "labor organization" of the foremen which presented their demand to management for better working conditions during the strike . Employees who informally join together to present their grievances to manage- ment or engage in other concerted activities for their own mutual aid or protection- constitute a "labor organization " within the "broad language used in the statute in defining" that term . See N. L. R . B. v. Kennametal, Inc., 182 F. 2d 817, 818 ( C. A. 3). enfg. 80 NLRB 1481 ; N. L. R. B. v. The Sandy Hill Iron & Brass Works, 145 F. 2d 631 ( C. A. 2), enfg. 55 NLRB. 33 See Kennametal, Inc., 80 NLRB 1481 •; Spencer Auto Electric, Inc., 73 NLRB 1416, 1419. • CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE: WORKS) 785 case, however, did not involve - guards but only supervisors, so that the Board had no occasion there to consider whether guards owe the same duty 'as supervisors to their employer in a strike emergency such as existed in the Gary plant, in that case, or in the Joliet plant in the instant case. The Supreme Court has held that the Wagner Act protected the rights of guards to enage in concerted activities even where such activities conflict with important wartime duties.34 The fact. that guards owe a duty to management to protect plant and personnel from damage or injury was not deemed by the Court sufficient reason to deny them the benefits of the Act. The Court stated that guards "bear essentially the same relation to management as maintenance and pro- duction employees." Past Board decisions discussing the relation of guards to manage- ment characterized them as monitorial employees rather than -man- agerial or supervisory employees. Thus, in the Cudahy case,35 re- jecting the contention that guards are representatives of management, the Board stated : They do not formulate or determine the Company's labor rela- tions policy. Their functions 'are unrelated to the production process, and they neither assign nor direct the work of other employees. As respects other employees, guards are merely monitors -and not supervisory or managerial employees.36 It is conceded that the duties of the guards in the instant case were primarily to patrol the plant, protect the property, and to see that the other employees had ' proper' passes. The Respondent introduced in evidence a copy of the protection department rules, which, in addition to the above duties, required the guards to patrol the premises for protection against fire or explosion, to prevent acts of negligence, and to quell disturbances among the plant employees, and which subjected guards to suspension or dismissal for, among other offenses, absence without leave and leaving their posts without proper relief. It ap- peared, however, that these rules were in effect only during the war 34 N. L. It. B. v. E . C. Atkins & Co ., 331 U. S. 398. 35 The Cudahy Packing Coiapany , 67 NLRB 150 . See, also , The Trailmobile Company, 72' NLRB 1349 : Bethlehem Steel Corp., 61 NLRB 892. 36 In drafting the present amendments to the Act, Congress rejected a proposal to deny the protection of the Act to guards . The House Bill would have excluded guards , from the definition of "employees." However, this proposal was eliminated in conference. As Senator Taft stated : "By the provision of the House Bill guards were completely excluded from the Wagner Act. We compromised with the House by providing that they should have the protection of the Wagner Act, but in a separate unit from the workers in the plants. That is certainly a change-although a minorrone , nevertheless a reasonable one-- and certainly it is a compromise with the extreme position taken by the I3ouse." (93 Congressional Record , p. 6658 , :June 6 , 1947.) _ This action of Congress contrasts with its decision to exclude supervisors from the definition of "employees " in the Act. " 786 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD period, which ended before the 1946 strike. Moreover, the Respond- ent did not assign violation of plant rules as the reason for the guards' suspension or discharge. In any event, the mere fact that the guards absented themselves without leave or left their posts without proper relief is, in our opinion,' no justification for their discharge, if such action constituted concerted activity for the mutual aid or protection of the guards. An employer may not be allowed to defeat the right of employees to strike by enforcing a rule forbidding them to leave the plant without his consent. That the activities of the guards were concerted is clear from the record. They discussed among themselves the possibility of strike- breakers entering the plant; they decided, as a group, that if strike- breakers were brought in, they would leave; they acted together in stating this position at the meeting with Nicholaisen, their super- visor; all of them walked out together when the group of 25 Gary men escorted by the State police came into the plant. We are also persuaded from the evidence and find that the guards acted in concert primarily in furtherance of their own mutual aid and protection 37 and incidentally in furtherance of the interests of the striking em-. ployees. They made it plain to management that they deemed pro- tecting strikebreakers a significant change in their working conditions, and that they did not consider this part of their duties. They demanded of Nicholaisen-even before the early morning incident involving the Gary men-that they be paid 24 hours'.pay for 24 hours' work. And as the Trial Examiner found, the guards walked out, for among other reasons, dissatisfaction with living conditions in the plant, and disinclination for family or personal reasons to stay in the plant 24 hours a day. We accordingly find that the guards' walkout constituted protected concerted activity and that, their suspension and discharge because of such activity constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Wagner Act, as well as discrimination with regard to hire or tenure of employment within the meaning of Section 8 (3) 38 of that Act. Whether the discrimi- natory conduct be viewed as a violation of Section 8 (1) or 8 (3) of the Act, we find that it would effectuate the policies of that Act to order that the guards be reinstated with back pay s9 Interference, Restraint, and Coercion Among other things, the complaint alleged, in substance, that the Respondent interrogated various' of the foremen and guards regard- ing their concerted activities. Specifically, the General Counsel 37 See E. A. Laboratories, Inc., supra. 88 See footnote 22, supra. ge See footnote 23, supra. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET'COKE, WORKS) 787 adduced testimony at. the hearing to show that between March 8 and March 11, 1946- after the suspensions but before: the discharges-the Respondent interviewed the foremen and guards, and during the inter- views, "in most cases," asked them whether they would do the same thing again if a strike situation arose again. AS the Trial Examiner found, both Jenks and' Superintendent Jones admitted .asking this question, and, in its context, the question must be taken as having referred to activity "of a similar kind." The General Counsel con- tends that asking this question was equivalent to asking the com plainants to foreswear any future concerted activity. The Trial Examiner found that in view of his conclusion that the activities of the foremen and the guards, even if concerted, were not protected, and their discharge was not violative of the original Act, this interrogation, too, was not violative of that Act. He reasoned that the right to discharge the complainants for such activity logically includes the lesser right to question them as to the likelihood of its recurrence. However, in view of our finding that the foremen and the guards had been suspended and discharged for engaging in protected concerted activity in violation of Section 8 (3) and 8 (1) of the Wagner Act, we find that the Respondent's interrogation of the foremen and the guards, relating as it did to their attitude toward concerted action for their mutual aid or protection, constituted an independent violation of Section 8 (1) of the original Act.- The Effect of the Unfair Labor Practices upon Commerce The activities of the Respondent set forth above, occurring in connection with the operations described in Section I of this decision, 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 thereof. The Remedy We have found that the Respondent has violated Section 8 (1) and 8 (3) of the original Act. We shall order the Respondent to cease and desist from engaging in such conduct. However, as supervisors are no longer protected under the amended Act, the cease-and-desist pro- visions of our Order are based, not on the Respondent's conduct with regard to the f oremen,41 but rather on its conduct with regard to the guards. We shall order the Respondent, to the extent that it has not already done so,.to offer the persons listed in Appendices B ' (foremen) and C 40 Chairman Herzog disagrees with this finding, believing the inquiries, per se, to have been reasonable in view of the nature of the functions performed by these two groups of employees. 41 See Republic Steel Corporation, 77 NLRB 1107, 1111. 961974-52-vol. 95-51 788 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD. (guards) reinstatement with back pay from February 18, 1946.42 In accordance with usual practice the period from the date of the Inter- mediate Report herein to the date of this Decision and Order will be excluded in computing the-amounts of back pay, as the Trial Examiner did, not recommend reinstatement or awards of back pay. With re- spect to the computation of back pay we have recently adopted a policy 43 consistent with which we shall order that the loss of pay ir_ each instance be computed on the basis of each separate calendar quarter or portion thereof during the period beginning February 18; 1946, to the date 'of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first day of January, April, July,, and October. Loss of pay'shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their net, earnings,44 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay lia- bility for any other quarter. We shall order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.45 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Steelworkers of America and its Locals Nos. 1329 and 3082 are labor organizations within the meaning of Section 2 (5) of the Act. 42 Eastern Coal Corporation v. N. L. R . B.,_ 176 F. 2d 131 ( C. A. 4), affirming 79 NLRB 1165. The suspension of the foreman and the guards actually occurred on. February 15, 1946. However, Steelworkers ' strike did not end until February 18, 1946. As there is no adequate basis in the record for finding that any of the Complainants offered to return to work before February 18, we shall require that back pay accrue from that date . See Kallaher and Mee, Inc., 87 NLRB 410. Exception is made, however, in the case of Charles Kenney, whose offer to return to work on January 24 was rejected by the Respondent. His back pay will run from January ' 24, 1946. One of the foremen , V. Ryan, was reinstated in March 1946, but was demoted several weeks later . The General Counsel contends that this demotion was in reprisal for Ryan's participation in the walkout of January 23. However, this contention is not supported by the preponderance of the evidence in the record . Ryan , accordingly , will be entitled only to back pay from February 18, 1946 , to the date of his reinstatement in March. 43 F. W. Woolworth Company , 90 NLRB 289. 44 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where, which would not have been incurred but for this unlawful discrimination , and the consequent necessity for his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 660 . Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered earnings . Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. ' 41 F. W . Woolworth Company, 90 NLRB 289. CARNEGIE-ILLINOIS STEEL CORPORATION (JOLIET COKE WORKS) 789 2. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of the foremen listed in Appendix B, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (3),of the original Act. 3. By discriminating in regard to the hire and tenure of employ- ment and the terms and conditions of employment of guards listed in Appendix C, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the original Act and 8 (a) (3) of the amended Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Re sponderit has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (].) of the original Act and Section. 8 (a) (1) of the amended Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within in the meaning of Section 2 (6) and (7) of the Act. Order Upon the basis of the above findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Carnegie-Illinois Steel Corporation, Joliet Coke Works, Joliet, Illinois, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging concerted activities or membership in any labor organization of its employees by discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment. (b) In any other manner interfering with, restraining, or coercing, its employees in the exercise of the right to self-organization, to join- or assist any labor organization, to form labor organizations, to bar-' gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec-. tion 7 of the Act, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) To the extent that it has not already done so, offer to the per- sons listed in Appendices B and C immediate and full reinstatement to their former or substantially equivalent positions without prejudice 790 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD to their seniority or other rights and privileges,- and make them whole in the manner set forth in the section of this Decision and Order entitled "The Remedy". for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary. to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (c) Post in conspicuous places, at the Respondent's Joliet, Illinois, plant, copies of the notice hereto attached marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the Respondent's rep- resentative, shall be posted immediately by the Respondent 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 any other material. (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES . Pursuant to a Decision and Order of the National Labor Relations Board, and iri'order to effectuate the policies of the National Labor relations Act, we hereby notify our employees that : r WE WILL NOT discharge any of our employees, or discriminate in. any other manner in regard to their hire or tenure of. employ-. ment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to join or assist any labor organization, to form labor organizations, to bargain collectively through representatives of their own choosing , ^ and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to !o If this Order is enforced by.a decree of a United States Court of Appeals,, there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing.". CARNEG^,E-ILLINOIS' STEEL CORPORATION (JOLI.ET COKE WORKS) 791 the extent that such right may be affected by an agreement regilir-- ing membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to the individuals listed in Appendices B and C, to the extent that we have not already done so, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and we will make them whole for any loss of pay suffered as a result of our unlawful conduct. All our employees are free to become or remain members of any labor organization,. or to refrain from so doing, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activ- ity on behalf of any such labor organization. CARNEGIE-ILLINOIS STEEL CORPORATION, JOLIET CORE WORKS, 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. Appendix B Joseph Tomasich Mandus A. Girard John Romano Joseph Krizmanich Anthony D. Borio Frank G. Borio Edward Hausser Adrian F. C. Ryan George Sweeney John Batusich Ramond Zivec Peter Tomasich Harold Randolph Tellesphore Girard Robert Allison Frank Buric Paul Bobak Vincent Ryan Frank Gato Ralph Vanderhyden Anthony Petrie Edward J. Byezinski Appendix C John Aroch . Robert Kerr J. Abday Ambrose Deiss Leo Kurtz E. Koenig Warren Galloway Kenneth Lockewood V. Latz Carl Gruenwald Michael Maloney F. Muster George. Haller Edward McGowan W. Smith Raymond Iverson Albert Weese J. Wahl, Cyril Kellner Fred Whitmer F." Whitcamp Charles Kenney Harry Woock