McLeansboro Shale Products Co.

In the Matter of MCLEANSBORO SHALE PRODUCTS COMPANY and IN- TERNATIONAL Hon CARRIERS ', BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No. 1197 and UNITED BRICK AND CLAY WORKERS OF AMERICA, LOCAL 928, AFL, PARTY TO THE CONTRACT 'Case No. 14,-C-1072.Decided July 24, 194,6 Messrs. Harry G. Carlson and Robert Frazer, for the Board. O'Neill c6 Davey, by Mr. Schaefer O'Neill, of Alton, Ill., for the respondent. Hay d Flanagan, by Mr. Stewart Flanagan, Jr., of St. Louis, Mo., for the Clay Workers. Mr. Evan J. Dale, of Carbondale, Ill., for the Hod Carriers. Miss Ruth E. Bliefield, of counsel to the Board. DECISION AND ORDER On May 3, 1946, Trial Examiner Mortimer Riemer issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the respondent and counsel for the Board filed exceptions to the Intermediate Report. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the additions hereinafter set forth. The respondent excepted to the failure of the Trial Examiner to rule upon the respondent's "Motion to Reopen Record and Motion to Dismiss Entire Complaint" filed with the Board on April 9,1946. The motion is based on the filing of a strike notice with the U. S. Depart- ment of Labor on March 18, 1946, by the Brick and Clay Workers 69 N. L. R. B., No. 99. 809 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. The respondent argues that under the First Deficiency Ap- propriation Act the Board is prohibited from exercising any functions under the War Labor Disputes Act, and that therefore the Board is without jurisdiction in this case. We find no merit in this argu- ment. The Board in the instant proceeding is exercising its functions under the National Labor Relations Act. The Deficiency Appro- priations Act does not prohibit the Board from exercising such func- tions where a strike notice is filed inasmuch as the Board's juris- diction in an unfair labor practice proceeding is premised entirely on the provisions of the National Labor Relations Act and is wholly dis- tinct from the functions it previously exercised under the War Labor Disputes Act. The respondent's "Motion to Reopen Record and Motion to Dismiss Entire Complaint" is hereby denied. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, McLeansboro Shale Prod- ucts Company, McLeansboro , Illinois , and its officers , agents, succes- sors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the International Hod Carriers', Building and Common Laborers ' Union of America, Local No. 1197, affiliated with the American Federation of Labor, or in any other labor organization of its employees , by discharging, locking out, or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment, or any term, or condition of employment; (b) Refusing to bargain collectively with the International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, as the exclusive representative of all its employees , excluding office em- ployees, plant superintendent , foremen, and supervisory employees with authority to hire, promote , discharge, discipline , or otherwise effect changes in the status of employees , or effectively recommend such action, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Recognizing United Brick and Clay Workers of America, Local 928, affiliated with the American Federation of Labor, as the exclusive representative of its employees for the purpose of collective bargain- ing, unless and until said organization shall be certified by the National Labor Relations Board as such representative; (d) Giving effect to its Articles of Agreement dated September 26, 1945, with United Brick and Clay Workers of America, Local McLEANSBORO SHALE PRODUCTS COMPANY 811 928, affiliated with the American Federation of Labor, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with said labor organization, unless and until said organization shall be certified by the Board as the representative of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Hod Car- riers', Building and Common Laborers' Union of America, Local' No. 1197, affiliated with the American Federation of Labor, or any other .labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion as guaranteed in Section 7 of the Act; (f) In any other manner encouraging membership in the United Brick and Clay Workers of America, Local 928, affiliated with the American Federation of Labor, or discouraging membership in the International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, or any other labor organization of its employees, by dis- criminating in regard to the hire and tenure of employment or any term or condition of employment of any of its employees. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Hobart P. Trout immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, in the manner provided in that Section of the Intermediate Report, attached hereto, entitled "The remedy"; (b) Offer to the employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privi- leges, in the manner provided in that Section of the Intermediate Re- port, attached hereto, entitled "The remedy" ; (c) Make whole Hobart P. Trout and the employees listed in Ap- pendix A for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of an amount equal to that which lie normally would have earned as wages during the period from the date of the respondent's discrimi- nation to March 21, 1946, and thereafter from that date when, absent discrimination, each of the said employees could have been offered reinstatement or placement upon a preferential list, in the manner provided in. that Section of the Intermediate Report, attached hereto, entitled "The remedy," less his net, earnings during said period ; 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Make whole the employees listed in Appendix B for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of an amount equal to that which he normally would have earned as wages from the date of the respondent's discrimination to the date when each of the employees listed in Appendix B was restored to the respondent's pay roll, less his net earnings during said period ; (e) Withdraw and withhold all recognition from the United Brick and Clay Workers of America, Local 928, affiliated with the American Federation of Labor, as the exclusive representative of its employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, un- less and until said organization shall have been certified by the Na- tional Labor Relations Board as such representative; (f) Post in conspicuous places throughout its plant at McLeans- boro, Illinois, copies of the notice attached hereto, marked "Appendix C." Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed by the respond- ent's representative, be posted immediately by the respondent upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where no- tices 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; (g) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps respondent has taken to comply herewith. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. APPENDIX A C. F. Bond Raymond C. Collins William Cox R. E. Denny Robert Fann John A. Heil James Holdren Theodore Huffstutler James L. Hutcheraft Herman Hutcheson Roy B. Jackman James E. Johnson I-I. E. Jones Thomas Lenard Albert H. Lynn Jesse Mann Orvill Oliver Roman Reyling Isador L. Schuster Roy F. Smith George R. Timmons Willard Trobaugh Clyde Trout McLEANSBORO SHALE PRODUCTS COMPANY APPENDIX B Harry Adams Claud T. Martin Henry Horn `rerni.e Parker APPENDIX C NOTICE TO ALL EMPLOYEES 813 Pursuant to a 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 will bargain collectively upon request with the International Hod Carriers', Building and Common Laborers' Union of Amer- ica, Local No. 1197 (A. F. of L), as the exclusive representative of all the employees in the barganing unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: all production and maintenance. em- ployees of the McLeansboro Shale Products Company at its Mc- Leansboro, Illinois, yard, excluding office employees, plant super- intendent, foremen and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. We will not recognize the United Brick and Clay Workers of America, Local 928 (A. F. of L.), as the exclusive representative of any of our employees for the purpose of collective bargaining, unless and until said organization, shall have been certified by the National Labor Relations Board as the representative of our employees. We will not give effect to our Articles of Agreement dated September 26, 1945, with United Brick and Clay Workers of America, Local 928 (A. F. of L.), or to any extension, renewal, modification or supplement thereof, or to any superseding con- tract with the said labor organization, unless and until the said organization shall have been certified by the National Labor Re- lations Board as the representative of the employees of this com- pany. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges enjoyed, and make them whole for any loss of pay _suffered as a result of discrimination. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. F. Bond Raymond C. Collins William Cox R. E. Denny Robert Fann John A. Heil James Holdren Theodore Huffstutler James L. Hutchcraft Herman Hutchesen Roy B. Jackman James E. Johnson Hobart P. Trout H. E. Jones Thomas Lenard Albert H. Lynn Jesse Mann Orvill Oliver Roman Reyling Isador L. Schuster Roy F. Smith George R. Timmons Willard Trobaugh Clyde Trout We will make whole the following named employees for any loss of pay they may have suffered by the discrimination against them. Harry Adams Claud T. Martin Henry Horn Vernie Parker 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 International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197 (A. F. of L.), or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All of our employees are free to become or remain members of this Union, or any other labor organization. We will not discriminate in regard to the hire or tenure of employment, or any term or condi- tion of employment against any employee because of membership in or activity on behalf of any such labor organization. MCLEANSBORO SHALE PRODUCTS COMPANY, Employer. By -------------------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Messrs. Harry G. Carlson and Robert Frazer, for the Board. O'Neill & Davey, by Mr. Schaefer O'Neill, of Alton, Ill., for the respondent. McLEANSBORO SHALE PRODUCTS COMPANY 815 Hay & Flanagan, by Mr. Stewart Flanagan, Jr., of St. Louis, Mo., for the Clay Workers. Mi. Evan J. Dale, of Carbondale, Ill., for the Hod Carriers. STATEMENT OF THE CASE Upon a second amended charge duly filed March 1, 1946, by International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, herein called the Hod Carriers, the National Labor Relations Board, herein called the Board, by its acting Regional Director for the Fourteenth Region (St. Louis, Missouri ), issued its complaint dated March 4, 1946, against McLeansboro Shale Products Com- pany, McLeansboro, Ill., herein called the respondent, alleging that the respondent engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and second amended charge, with notice of hearing thereon, were duly served upon the respondent, the Hod Carriers, United Brick and Clay Workers of America, Local 928, AFL, herein called Local 928, and District Council No. 2, United Brick and Clay Workers of America, herein called District Council No. 2. Concerning the unfair labor practices the complaint alleged in substance that: (1) the respondent discharged Hobart P. Trout on or about July 29, 1945; discharged and locked out all of its remaining employees on July 30, 1945; and thereafter refused and failed to reinstate the said employees; (2) the discharge and lock-out of the said employees and refusal to reinstate was for the reason that they joined and assisted the Hod Carriers; (3) on or about July 20, 1945, a majority of the respondent's employees in an appropriate unit designated and selected the Hod Carriers as their representative, for the purpose of collective bargaining, and from July 25, 1945, down to date the respondent refused to bargain collectively with the Hod Carriers; and (4) the respondent since March 1937, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) assisting in the forma- tion of Local 618, United Brick and Clay Workers of America, AFL, herein called Local 618, (b) attempting to compel its employees to remain members of Local 618 after notice that said employees had joined the Hod Carriers, (c) assisting in the formation of Local 928 and thereafter recognizing and entering into a union-shop contract with Local 928 despite knowledge that the Hod Carriers was the exclusive bargaining representative, (d) disparaging and condemning the leadership of the Hod Carriers and (e ) misrepresenting to its employees that a charge of unfair labor practices had been withdrawn with the approval of the Board. In its answer filed March 13, 1946, the respondent denied that it was engaged in interstate commerce within the meaning of the Act, and denied the commis- sion of the unfair labor practices alleged. By way of separate defenses, the answer averred that the respondent had a valid existing contract with Local 618; that on July 30, 1945, its employees were advised that it was operating under the terms and provisions of the said contract and pursuant thereto the respondent was unable to employ anyone who was not a member of Local 618, and thereupon Hobart P. Trout and other employees left the respondent's employ. The answer admitted the appropriateness of the unit alleged by the Board. Local 928 filed its answer on March 19, during the course of the hearing. Therein, it alleged that Local 928 was the recognized bargaining agent of the respondent's employees ; that a closed-shop contract with the respondent exists and has existed since 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 1937 , which precluded the intervention of any other labor organization as a bargaining agent ; and that Local 928, chartered by its national headquarters, entered into a closed-shop agreement with the respondent on or about Septem- ber 26, 1945. Pursuant to notice, a hearing was held at McLeansboro, Ill., on March 18, 19, 20, and 30, 1946, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner . The Board, the respondent, and Local 928 were represented by counsel, the Hod Carriers by its representative, and all parties participated in the hearing . Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing on the issues was afforded the parties. At the conclusion of the proceedings on March 20, the respondent requested an adjournment until March 30, 1946, in order to take the testimony of John Stelle, director in charge of the respondent's operations at the time the alleged violations of the Act occurred. The motion was granted. The hearing convened on March 30 for this purpose . At the conclusion of the Board 's case, both counsel for respondent and Local 928 moved to dismiss the complaint . The motions were denied. At the conclusion of the hearing the motion of counsel for the Board to conform the pleadings to the proof was granted without objection. Ruling was reserved on motions of counsel for the respondent and Local 928 to dismiss the complaint. These motions are now denied. A date was fixed for the filing of briefs . Thereafter counsel for the Board submitted its brief. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT McLeansboro Shale Products Company is an Illinois corporation , with its office and principal place of business in McLeansboro, Illinois, where it is engaged in the manufacture, sale, and distribution of common and face brick and building tile. The plant has 6 kilns with a productive capacity of about 500,000 bricks per month. During the year 1945, the respondent produced and sold bricks and tile valued at approximately $80,000. In that period, the plant was closed from July 30 to September 26, 1945. Of the afore-mentioned value of $80,000, products valued at approximately $35,000 were shipped from the plant by truck, including shipments therein, valued at approximately $3,000, to points outside the State of Illinois. For the same period, the respondent shipped by rail, products of the total value of $45,700, of which approximately $14,600 in value, was shipped to points outside the State of Illinois. During the period from July 1, 1944, to July 1, 1945, respondent shipped from its plant by rail, 159 carloads of its prod- ucts, of which 86 carloads were assigned to points outside the State of Illinois. A carload contains approximately 20,000 bricks and respondent received an average price of $19 a thousand for bricks during this period. Thus, for the period July 1, 1944 to July 1, 1945, respondent shipped bricks by rail to points outside the State of Illinois valued at approximately $32,000. Respondent employed on the average about 25 production and maintenance employees. On or about March 21, 1946, the respondent's plant was completely shut down as a result of fire. The respondent denied that it was engaged in interstate commerce within the meaning of the Act. The undersigned finds on the basis of the foregoing facts that the respondent caused a substantial amount of its products to be transported and delivered in interstate commerce to and through States of the United States other than the State of Illinois, and is engaged in commerce within the meaning of the Act. McLEANSBORO SHALE PRODUCTS COMPANY II. THE ORGANIZATIONS INVOLVED 817 International Hod Carriers' Building and Common Laborers' Union of America, Local No. 1197, and United Brick and Clay Workers of America, Local No. 928, both affiliated with the American Federation of Labor, are labor organizations, admitting to membership employees of the respondent. United Brick and Clay Workers of America, Local No. 618, affiliated with the American Federation of Labor, was a labor organization admitting to member- ship employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. The organization of Local 618 Sometime in July 1937, Westbrook, a representative of the United Brick and Clay Workers, met with John Stelle, then a director and stockholder of the respondent's corporation, at the respondent's plant in McLeansboro, Illinois. Stelle, in his testimony, could not recall whether he first approached the Union or whether the national office of the Union contacted him. In any event, Stelle in- formed the United Brick and Clay Workers that he "w6uld be very happy to cooperate with them" for the purpose of organizing the respondent's employees. At this time there had been no efforts on the part of any of the employees to organize a union and no interest had been shown in the United Brick and Clay Workers.' Paul Sandusky, who was employed by the respondent in July 1937, as a plant engineer, testified without contradiction that Stelle ordered him to stop the engines because he wanted to talk to the employees. He testi- fied further that in the presence of Westbrook, Stelle told the employees that he wanted them to join the United Brick and Clay Workers of America so that respondent could sell its bricks. During the noon hour that followed Stelle's remarks, approximately 6 of the employees joined the organization and some- time thereafter a charter was issued to Local 618. The undersigned credits Sandusky's testimony and finds that the respondent thereby assisted in the formation of Local 618. Following organization Df Local 618 and receipt of its charter, respondent entered into a union-shop contract with Local 618, which was renewed yearly thereafter. 2. The contract of April 1, 1944 The last contract between Local 618 and respondent was entered into April 1, 1944, and is identified by the title, "Articles of Agreement." Under its terms, the parent organization was made a party to the agreement endorsing all of its provisions and it was further provided that no change in its terms could be made by Local 618 without the consent of the respondent. By express pro- vision it was settled that the agreement, "shall be in full force and effect from 44, to March 31, 1.945." (Italics supplied.) It was signed by Stelle, now director-in-charge of operations, 5 employees representing Local 618. and N. J. Rogers, recording secretary and business representative of Dis- trict Council No. 2, representing the International Union. On February 28, 1945, Local 618 wrote Stelle that it desired "a change in agreement for the year 1945." This notice was received approximately one month prior to the expiration date of the agreement and although under the terms of the Articles of Agreement notice on the part of either party desiring change was to be sub- Finding based upon the testimony of witnesses Hobart P, Trout and Isidor Schuster. 701592-47-vol. 69-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOAItD mitted in writing on or before January 1, 1945, respondent made no objection to the untimely receipt of the notice. At a meeting of various locals of the United Brick and Clay Workers held in Springfield, Illinois, on March 18, 1945, Rogers was notified of the desire on the part of Local 618 to change its agreement for the forthcoming contract year. He was informed that Local 618 wanted to incorporate in the new contract, provisions for show-up pay of 2 hours for employees who reported for work and were then sent home, and weekly pay. Rogers drafted a new contract incorporat- ing these two provisions, the remainder of the contract being substantially in accord with the existing contract, and returned it to officers of Local 618. At or about the expiration date of the contract on March 31, 1945, Local 618 met on two occasions with Stelle to discuss the new contract. Although Stelle placed both meeting's prior to March 31, neither his recollection nor that of any of the other witnesses was exact as to the dates the meetings were held, and it is not clear from this record that both meetings were in fact held prior to March 31, 1945.2 In any event, at the first meeting, at which apparently all members of the Local met with Stelle, he indicated his opposition to the new contract, opposing principally the incorporation of the 2 provisions respecting show-up pay and weekly pay. Also in issue was the employees' dissatisfaction with their wages and in response to this, Stelle made certain proposals which would increase the take-home pay of the employees. His suggestions did not meet with the approval of the employees and he requested that the Local ap- point a committee to consult with him at a later date. At the second meeting, all members of the Local again met with Stelle. No agreement was reached, Stelle still refusing to accept the provisions for show-up pay and weekly pay and the employees indicating no desire to accept Stelle's recommendations for some sort of wage incentive program. 3. Events leading to the return of the charter Following the second meeting with Stelle, the employees continued to work at the plant under the same terms and conditions that had existed prior thereto and there were no further negotiations concerning the proposed contract. So far as the employees were concerned, Local 618 had not by any written or oral agreement extended the terms and provisions of the contract. Shuster described the situation as follows : "We did not have no more Union after that, our contract run out." But the employees felt dissatisfied with the representation given Local 618 by Rogers, and on May 7, 1945, 23 members of the Local wrote Rogers a letter, indicating their dissatisfaction "with the consideration and protection received" from the International Union. They expressed further dissatisfaction over their inability to receive a wage increase and asked that Rogers submit an account concerning his efforts to obtain wage increases. In particular, they wanted Rogers to send them copies of the wage demands that Rogers had presented to the War Labor Board, together with the rulings of the War Labor Board denying wage increases. The letter stated further : "With all due respect, we feel that we must be given consideration and explanations at once as we will be forced to send in our charter and discontinue our affiliation as we are now working without a contract and as far as we know, the International has made no attempt to get such contract renewed." All further communications between Rogers and the Local respecting the issues raised in the letter were to be sent to Trout. Holdren, 2 L. S. Ledbetter, the respondent's secretary, placed both meetings prior to March 31, 1945; James Holdren, former president of Local 618, placed the meetings after April 1, 1945, and Stelle on one occasion testified with uncertainty that the meetings were held In March, April and May. McLEANSBORO SHALE PRODUCTS COMPANY 819 a persuasive witness, testified that the letter was sent to Rogers because the employees were "dissatisfied with the conditions , and decided it would be best to send in that letter showing their dissatisfaction." Sometime after the second meeting with Stelle, on a date not clearly fixed by the testimony of any witness, Local 618 held a meeting attended by all employees, except possibly one or two' A majority of the members therein voted to return the charter of Local 618 to the International Union. According to Raymond Collins, after Stelle refused to renew 'the contract that had been presented to him, they "made up their minds" that they would return the charter. At or about the same time, the employees discussed among themselves, the idea of forming at new local union, "one that would appear and work with us." One cause of dissatisfaction with the United Brick and Clay Workers was the inability of the employees to contact Rogers. Whether in fact Rogers was derelict in his duties to Local 618 is not clear, and no finding is made herein to that effect. It may well be that the members of Local 618 (lid not correctly appraise the situation and fully understand the efforts that Rogers was making in their behalf. In any event, they believed that their interests were not being fully protected by Rogers. Local 618 served the respondent with notice that it had returned its charter to the International Union. On July 6, 1945, Rogers wrote Stelle that he had received from the respondent, "the letter of notice that McLeansboro Local Union No. 618 served on you, in regard to the Local Union forfeiting their char- ter . . Rogers requested Stelle to attend a joint meeting of representa- tives of manufacturers and Brick and Clay Workers' locals' to be held July 10, at Springfield, Illinois, and that at this meeting Rogers would discuss the situa- tion that had arisen at McLeansboro. What negotiations were had between Rogers and Stelle at the meeting on July 10 is not shown. Certainly at this date both Rogers and Stelle knew that Local 618 had surrendered its charter.' Sometime in the forepart of July, employee Charles Bond, asked Dorris Ben- brook, business agent of the Hod Carriers, to represent the respondent's em- ployees. Benbrook was under the impression that they were still members of Local 618 and refused to consider representation of them. When Bond informed him that the charter of Local 618 had been surrendered , Benbrook replied that in that event the Hod Carriers would undertake to represent the employees. One of the employees who undertook preliminary negotiations with Benbrook was Trout. After the employees had decided to affiliate with the Hod Carriers, Trout saw Benbrook and arrangements were made to hold a meeting at the Court House in McLeansboro. 4. Organization of the Hod Carriers On the evening of July 25, 1945, the respondent's employees met at the Court House. In addition, there were present Benbrook and Evan J. Dale, District Council Representative of the Hod Carriers . Benbrook gave Trout application for membership cards in the Hod Carriers, which he in turn distributed to the employees present. Either 23 or 24 cards were signed, which were collected by Trout, turned over to Benbrook, who in turn gave then to Dale. Prior to July a The undersigned is of the opinion, based upon a study of the entire record, that this meeting was held in late June or early July, 1945. 4 Southern Illinois locals of the United Brick and Clay Workers were affiliated with Dis- trict Council No. 2, represented by Rogers. 6 Subsequent to the return of the charter, the employees continued to work at the plant under the same terms and conditions prevailing under the March 1944. contract. At no time was respondent informed, nor did any employee suggest, that because the parties had been unable to agree upon a new contract. the employees would refuse to work. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30, Trout obtained 4 additional signatures on application cards from employees who did not attend the meeting. After the cards were signed , Benbrook wrote respondent a letter dated July 25, reading as follows : Please accept this as an official notice that Local No . 1197, International Hod Carriers', Building and Common Laborers' Union of America , affiliated with the American Federation of Labor, in accordance with the National Labor Relations Act, we represent sufficient majority of your employees to entitle us to bargaining agency of the same. Therefore, we will appreciate your immediate response setting a date within five ( 5) days of this notice for negotiating an agreement. It was stipulated by counsel for the Board and the respondent that Benbrook's letter was received by the respondent on July 27. Stelle returned to McLeansboro on Saturday, July 28. Before he had an opportunity to see the letter from Benbrook , he had heard rumors that the employees were interested in joining the Hod Carriers . Stelle testified that he was told by 2 or 3 employees that Trout was responsible for the employees ' affilia- tion with the Hod Carriers . Stelle made an investigation of the existing situa- tion and he learned, so he testified , that in addition to Trout's interest in having the employees affiliate with the Hod Carriers , Trout also had engaged in a deliberate effort to slow down respondent 's operations in April 1945. B. Discrimination with respect to employment 1. The discharge of Trout On Sunday, July 29, Trout and employee Enos Jones were at the plant. About 10: 00 o'clock in the morning, Stelle came out to where Trout was at work. The undersigned finds, based upon the convincing, uncontradicted testimony of Trout, that Stelle stated that he had learned the employees had transferred their mem- bership from Local 618 to the Hod Carriers, and he would not "accept" the Hod Carriers. Stelle told Trout that if he did not reafhliate with Local 618 be could not come to work on Monday. Trout replied that he would return on Monday morning to "see what the boys has to say about it," whereupon Stelle remarked "To hell with the boys, I am running this." Jones testified that in addition to the above remarks, Stelle also said to Trout, "I want you to understand you are fired. You don't work here any more * * * I mean one and all that won't go back under the same union we was working under." Jones interjected : "I guess that means me, too, Air. Stelle, for I won't go back," to which Stelle rejoined, "That means everybody that won't go back under that." Thereupon, mtelle walked away. Stelle did not deny the above testimony of Trout and Jones. However, he sought to justify Trout's discharge on these grounds : I .learned two things along about the latter part of July that caused me to take direct action. One was 11Ir. Hobart Trout, who deliberately walked into the kilns and slowed down work in the kilns, and told men in the setting gang to slow down on their work. Another thing, he was violating our contract by organizing a union, and I fired him. Regardless of whether Trout violated a contract by helping to organize the Hod Carriers, an issue which will be discussed hereafter, it is clear from the testimony set forth above that Stelle discharged Trout for "organizing a union." This is crystal clear unless the other reason advanced by Stelle, 1. e., that Trout engaged in a slow-down, was paramount in Stelle's mind when he discharged Trout. McLEANSBORO SHALE PRODUCTS COMPANY 821 The evidence on this latter issue is far from persuasive. Arthur Renschler, yard foreman, testified that in February 1945, he had "a few words with him [Trout] on trying to slow down production ." Nothing further was said to Trout until April 1945, when Renschler told Trout he'would "have to cut that out." Renschler acknowledged that Trout disputed that he was "slowing down production". He testified further, that he heard Trout remark to fellow employees, "You are working too hard, and I will have to work harder that way." This was the only other occasion that Renschler spoke to Trout. Thereafter, he noticed no further "slow down " activity on Trout's part. Renschler reported this incident to John Cox, plant superintendent, who took no other action. Trout denied that he had engaged in any slow-down or that he had impeded the respondent 's production efforts. The undersigned is of the opinion that at best this incident discloses a misunderstanding between Trout and Renschler as to the methods to be em- ployed by Trout in his work as a kiln fireman, but that it was not in fact a delib- erate effort to interrupt production. Moreover, this incident occurred in April, at least three months prior to Trout's discharge. Although Stelle testified that he would have discharged Trout at the time of the incident in April, had he known about it, Cox, who presumably possessed authority to discharge Trout, had he viewed the matter of sufficient importance, did nothing. This fact indi- cates to the undersigned that the matter was trivial and worthy of no more attention than reprimand from Cox. The undersigned is convinced and finds that Stelle utilized this incident in partial justification for the discharge of Trout for his union activities. Therefore, the undersigned finds that respondent dis- charged Hobart Trout on July 29, 1945, by reason of his union membership and activity in violation of Section 3 (3) of the Act. 2. The lock-out As the employees reported for work on Monday, July 30, Stelle instructed Cox to call them together because he wanted to talk to them. The most explicit account of Stelle's remarks on this occasion is contained in the testimony of Collins. It is herein set forth in full : By Mr. CARLSON, counsel for the Board : Q. What if anything happened that morning? A. We drove up and parked the car by the office where we always parked, and got out to go to work . Mr. Stelle was coming up from down by the kilns. He waved his hand and said , "Come up here, boys, I want to talk to you." There was a bunch following him, and we walked over and joined him. Mr. Stelle said, "I have a notice from a labor union," the common labor union he called it, and he said, "I am not going to recognize it." He said, "If you boys want to work, there is work here for you all except Hobart Trout." He pointed his finger at him and said, "You cannot work no more. He is through because he is the agitator on the doings ." Mr. Bond was standing , there. He said, "Does that mean , John, we are all fired?" He said, "No, you are not fired. If you want to go on working, all right, you work. There is work here for you. If not, we will call it a strike." He said, "Of all the other unions, John Lewis and the CIO," and he named another and said, "You would have to pick that damn Evan Dale and Benbrook organization." Q. Do you recall anything further? A. That is about all. 822 DECISIONS OP NATIONAL LABOR RELATIONS BOARD Q. Do you recall whether or not anything was said that Brick & Clay workers could not belong to any other union except the Brick & Clay Workers Union? A. I don't remember it like that, but he said we could not work in the Brick and Clay work and belong to the common labor union.° Q. Whatdid the men do after that? A. They go in their cars and drove uptown here. Stelle testified concerning his remarks on this morning as follows : . .. I told Cox to tell them to cone up, that I wanted to talk to them. Something was asked about this fellow being discharged, and I told him he was fired.' Something was asked about the contract with the com- mon laborers union, and I told them we had a contract with the United Brick & Clay Workers Union and that was the only union I was going to recognize because we had a contract with them. We were doing business with them, and they were doing wrong because we then had a wage propo- sition up before the War Labor Board for adjudication of wages, and we had nothing to do with the wage proposition' When the employees left the plant premises, they went into McLeansboro where some of them gathered around the Court House square. Benbrook, who had now joined the employees, left the group and started to cross the street when Stelle called to him. Benbrook testified as follows concerning the brief street conversation with Stelle : He told me I had better get the men back to work. I asked him if he recognized me as the collectful (sic) bargaining agent, and he said "Hell, no, and, by God, I never will. Of all the God-damned organizations for a bunch of men to join, your damned outfit and Evan Dale's. Here are the Coal Miners down here, and the CIO, and any other damned organiza- tion but yours." He said "I won't recognize it." Stelle acknowledged that he met Benbrook on this occasion. He testified that lie told Benbrook that lie was "doing these men wrong by calling them off because the jurisdiction of the plant was under the United Brick & Clay Workers and we had a cont=ract with them, and he was treating these men pretty damned dirty by calling them off, . . . " The undersigned accepts Ben- brook's version of this conversation and finds that Stelle made the remarks attributed to him by Benbrook.s C. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that a unit comprising all employees at the respondent's plant excluding office employees, plant superintendent, foremen, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise ° Of this particular comment of Stelle 's, HoId1en put it this way : "There is plenty of work here for you men who want to work, but under the old contract with the old union . . . . You can either go to work under the old contract or the old union or call it off." 4 According to Schuster's credible testimony, the undersigned finds that Stelle pointed to Trout and said that he was discharged and would never work again because he was "an agitator" and the leader in getting the employees to join the Hod Carriers. 8 Cox was asked if Stelle referred to Benbrook in his remarks to the employees. He testified that Stelle "mentioned Benbrook, but I did not hear him put the `damned', to it. He might have done it. I don't remember that part of it." 11 The ultimate findings respecting the lock-out is made below for the purpose of con- tinuity in this report. MrLEA__NSBORO SHALE PRODUCTS COMPANY 823 effect changes in the status of employees, or effectively recommend such action, would insure to employees their fall right to collective bargaining and other- wise effectuate the policies of the Act. The respondent's answer admits the appropriateness of this unit. It was further stipulated between counsel for the Board and for the respondent that the unit formerly represented by Local 618, and thereafter covered by a contract between respondent and Local P28, was an all-employee unit with the exception of office, clerical, and supervisory employees. The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Hod Carriers of a majority of the appropriate unit The complaint alleges that on or about July 20, 1945, a majority of the em- ployees in the unit, described above, designated and selected the Hod Carriers as their representative for the purposes of collective bargaining with therespond- ent. The respondent denied that the majority of the respondent's employees designated and selected the Hod Carriers as their representative. Under Section III A, sub-division 4, above, it was found that approximately 24 of the respondent's employees at a meeting on July 25, 1945, signed applica- tion for membership cards in the Hod Carriers, and between the meeting and July 30, the remaining 3 or 4 employees signed similar cards in the Hod Carriers. At the hearing, counsel for the Board offered in evidence 28 signed application for membership cards in the Hod Carriers. Their introduction was opposed on the grounds: (1) that there was no proof of the authenticity of the signatures, and (2) that the mere signing of the application card was not probative evidence of a change in affiliation from Local 618 to the Hod Carriers which would war- rant recognition by the respondent. Counsel for the Board thereupon called 19 employees to identify their signatures on the application car(Is. In the under- signed's opinion, the signatures of those employees not identified at the hearing appear to be genuine and there is no evidence to dispute the apparent authenticity of these cards. On motion of counsel for the Board, the 28 cards were admitted. There was introduced in evidence at the hearing a pay-roll record for the period ending July 31, 1945, showing 32 employees in the appropriate unit. In addition, it was stipulated that James Ilutcheraft began work on July 23, 1945, and worked thereafter on July 24, 25, 26 and 27. He worked 2r/ hours on July 28, leaving tine plant at that time with the respondent's permission, in order to visit a dentist. On leaving the plant he informed Secretary Ledbetter that he would return to work on :Monday, July 30. Hutchcraft reported for work on July 30, and left with the other employees. Thus, for the pay-roll period ending July 31, there was a total of 33 employees in the appropriate unit. It is agreed that there would be excluded from this 4 high school students, who quit on July 28, and another who previously had left the respondent's employ.10 Thus, there are 28 employees in the appropriate unit, and there were introduced into evidence 28 cards, 19 of which were identified as to signatures through the testimony of the employees who had signed the cards. Another contention of the respondent, that the mere signing of the Hod Car- riers' card was not sufficient to indicate a desire on the part of the employee to "George Gross quit the respondent's employ on July 18, 1945, and Richard Hill, Evan 1). Alden, James P. Dial and John 0. Dial were high school boys who quit the respondent's employ on July 28, 1945. All others named thereon , it was further agreed , were on re- spondent 's pay roll on July 25 and July 30, and comprised the respondent 's working force except for office, clerical and supervisory employees. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transfer his allegiance from Local 618 to the Hod Carriers, does not merit ex- tensive consideration. The Board at no point alleged that the employees became members of the Hod Carriers. It alleged only, that a majority of the employees designated and selected the Hod Carriers as their representative for the purposes of collective bargaining. This allegation is amply supported by the evidence and a substantial majority of the employees, at least 19 of whom testified at the hear- ing, were aware, as is clear from their testimony, that in signing the application card they were designating the Hod Carriers to represent them" The undersigned finds that on July 25, 1945, and at all times thereafter, the Hod Carriers was, and now is, the duly designated representative of the majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Hod Carriers at all times was, and now is, the representative of all the respondent's employees in such unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, or other con- ditions of employment. 3. Conclusions with respect to the refusal to bargain It is clear from the facts found above, that Stelle refused to recognize the Hod Carriers and permit his employees to work unless they renounced their affiliation with the Hod Carriers and returned to work under the "old contract" with Local 618. Stelle was frank concerning his objections to the Hod Carriers. He testified : "We had a contract [with Local 618]. We were willing to go 100% with them on their contract, and were. trying to adjudicate wages with the War Labor Board. And to have another group of people undermining your inen; naturally you wanted to continue your old contract." The respondent concedes that the contract of April 1944, with Local 618, con- tained an express termination clause but asserted as its position, that the contract remained in force and effect subsequent to the termination date of March 31, 1945. Respondent's counsel thus states its position : "It is our contention that the contract was definitely in force and effect up until the time that there was some overt act on the part of the employees to effect or bring about its termination." In support of its position respondent referred to a meeting held at Springfield, Illinois, on February 20, 1945, attended by representatives of District Council No. 2, and representatives of the various brick and clay manufacturers within the Southern Illinois area, wherein it was agreed that the body of the agree- ment would remain in force. Rogers testified that since 1941, the 16 locals within the district had been negotiating jointly with the manufacturers; that the locals would formulate their demands ; and that a District committee of 3, plus Rogers, would meet with the manufacturers to negotiate wage scales. There- after, individual contracts were signed by each local. The joint conference con- sidered only the body of the agreement and the wage scale ; it did not concern itself with local working conditions. It was Rogers' testimony that by use of the term "body of agreement," he ment the "reconition of the whole body with- out the working conditions or wage scale." The respondent's position, therefore, that the contract continued in force and effect, is based upon the understanding reached at the Springfield meeting on "Each application card contained the following statement after the applicant 's signa- ture : "I hereby make application to become a member of the Maintenance and Production Employees , affiliated with I. H. C. B . & C. L. U. of A., A. F. of L. In doing so, I, of my free will and accord, hereby authorize the Maintenance and Production Employees, affili- ated with I. H. C. B . & C. L. U. A., A. F. of L., or its representatives , or officers, to act for me as collective bargaining agency in all matters pertaining to rate of wages. hours and other conditions of employment." McLEANSBORO SHALE PRODUCTS COMPANY 825 February 20. In a letter dated May 15, 194.,, Rogers wrote Trout, in response to the communication from Local 618 wtpressing dissatisfaction with the Inter- national's efforts to renew the contract and threatening to return the charter, that on February 20, it was agreed that the body of the agreements would remain in force. but any increases in wages would have to be petitioned for, before the War Labor Board, . . . the sub-committee made this report at the meeting of District Council in Springfield, Illinois, on March 18th, 1945, and there were two delegates in attendance at this meeting from McLeansboro Local No. 618. . . The minutes of the District Council meeting held on March 18, 1945, show the presence of two representatives from Local 618, Charles Bond and Raymond Collins, but the minutes do not indicate any report to the effect that the District had, together with the manufacturers, agreed that the "body of the agreements" would remain in force and effect subsequent to March 31, 1945. The minutes refer to a report of a sub-committee concerning the February 20 meeting in this manner : "the manufacturers had nothing to offer, nor would not committ (sic) themselves in regard to our intention of filing a petition with the War Labor Board for an increase in the wage scale." This is the only discussion of the February 20 meeting contained in the minutes. If. in fact, such agreement was undertaken in Springfield on February 20, 1945, members of Local 618 could not recall such agreement, and the employees testified without equivocation, that there was no oral or written undertaking to renew the terms or conditions of the 1944 contract. Testimony at the hearing revealed further that, in years past, contracts had not always been renewed at the time of the expiration date. On occasions it.took as long as 3 months to negotiate new contracts. But, at least in those instances, contract negotiations continued down to the time a new contract was agreed upon and no question of change in affiliation was ever raised. In the instant case, following the last meeting between Local 618 and Stelle, negotiations were suspended, and although it may be that Stelle was willing to continue negotiations thereafter, the Local itself made no effort to do so. It seems clear from the testimony of the em- ployees that they considered their contract at an end. Finally, there is the addi- tional factor that the employees decided to join another union. The question therefore arises, whether Stelle was legally correct in taking the action he did because of the "existence" of a contract with Local 618. That contract had by express terms expired on March 31, 1945, unless the aforemen- tioned understanding was such as to continue the body of the agreement in force and effect until a new contract could be consummated. Assuming that such agreement was made, the members of Local 618 abandoned any attempt on the part of Rogers to renew their contract with the respondent. After the two meetings with Stelle, no further efforts were made by Local 618 to renew the contract. Although Rogers, subsequent to the surrender of the charter, con- tinued to press the International's demands for an increase in wages before the War Labor Board, he did so as a representative of the International, and not alone for Local 618. There is nowhere in this record any exact understanding on the part of any individual, as to the precise manner in which the contract between respondent and Local 618 was extended beyond March 31, 1945. Stelle admitted that he had no knowledge of any written agreement to extend the contract. Moreover, aside from the question of contract extension , the respond- ent's employees had shown unequivocally a desire to relinquish their member- ship in Local 618 and affiliate with the Hod Carriers. They did this first when they surrendered the charter of Local 618 and gave the respondent notice of their action. In the second place, their intentions became essentially clear when Benbrook communicated with respondent on July 25, putting it on notice that the 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees had now designated the Hod Carriers to represent them. If at this time the Hod Carriers had filed a petition for certification, in the undersigned's opinion, the question of the contract with Local 618, would not have been an obstacle to a determination of this question by the Board. It may be that the respondent was concerned about its employees being repre- sented by the Hod Carriers, whereas employees of other brick and clay manu- facturers, so far as known, were still represented by the Brick and Clay Workers, and that this break in representation might result in economic hardship to the respondent. But at this time there is no evidence of a jurisdictional dispute between Local 618 and the Hod Carriers. In fact, the Hod Carriers refrained from organizing the respondent's employees until it was informed that the employees had surrendered their charter. Finally, there is no showing that the Brick & Clay Workers had threatened to impose economic pressures because of the membership of the respondent's employees in the llod Carriers. Arso, the action taken by Stelle, in locking out the employees, regardless of what he thought might have been the ultimate position of the Brick & Clay Workers, was action that he alone inspired.' It is also important to point out, in connection with the respondent's theory that the contract continued in force and effect, that the parties did not believe this to be the fact, subsequent to March 31, 1945. For example, under the terms of the contract with Local 618, it newly hired employee was given a trial period of 12 days to prove his worth. If he worked the 13th day, it was notice that lie was a satisfactory employee and thereafter he was obliged to become a member of Local 618. Herman Hutcheson started to work for the respondent in April 1.945, and continued thereafter down to July 30. Hutcheson never joined Local 618. Had Local 618 been desirous of enforcing its contract, or if the respondent was concerned with enforcement of its provisions, Hutcheson should have been required to join the Union. Moreover, that Rogers himself did not consider that he represented Local 618 any longer is apparent from the following : On August 6, 1045, the Hod Carriers filed a petition for certification with the Regional Office of the Board. Rogers was invited to attend it preliminary conference held in McLeansboro on August 30 to discuss the representation of the employees. On September 4, Rogers wrote the Regional Office, in part as follows, explaining his reason for nonappearance at the conference: About two months ago I was notified by Local No. 618 they no longer desired to be affiliated with the United Brick and Clay Workers of America, and sent in their charter to our general office in Chicago, Illinois. Under such circumstances I could not see where we would have any real evidence we could present at the meeting as a claim of representing the employees of the McLeansboro Shale Products Company. Thus it is clear, in the undersigned's opinion,4that, following the surrender of the charter, Local 618 made no efforts to enforce the terms of its agreement with respondent, and Rogers himself had relinquished his claim to representation on their behalf. Under these circumstances, the undersigned finds that Stelle's refusal to bargain was motivated by reasons other than a belief that lie was legally bound by contract to Local 618. The undersigned finds, therefore, that on July 30, 1945, and at all times there- after, the respondent refused to bargain collectively with the Hod Carriers as the exclusive representative of its employees in an appropriate unit with respect 12 Fear of economic reprisals, cannot serve to exonerate an employer from responsibility for the commission of unfair labor practices . See N. L. R. B. v. Star Publishing Company, 97 F. (2d) 465 (C. C. A. 9) ; McQuay-Norris Mfg. Co. v. N. L. R. B., 116 F. (2d) 748 (C. C. A. 7). McLEANSBORO SHALE PRODUCTS COMPANY 827 to rates of pay, wages, hours, and other conditions of employment, and that respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Conclusions respecting the lock-out As found above, on July 30, 1945, Stelle told the employees that they could return to work under the "old contract" but that he would not permit them to continue their employment if they insisted upon their representation by the Hod Carriers. Thereupon, the employees left the plant. It is clear from the course of conduct set forth that Stelle was denying to the employees an opportunity to work unless they renounced their affiliation with the Hod Carriers. Moreover, Stelle, in his remarks at the plant and a few hours later in McLeansboro, indi- cated very clearly how he felt about the leadership of the Hod Carriers. Since the employees were denied an opportunity to continue their employment by reason of their membership in the Hod Carriers, the undersigned finds that the employees listed in Appendices A and B of this report were locked out on July 30, and that thereby the respondent discriminated in regard to the hire and tenure of their employment in violation of Section 8 (3) of the Act. The undersigned finds, further, that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. Further interference, restraint, and coercion 1. The formation of Local 928 The complaint alleged that the respondent assisted in the formation of Local 928 and thereafter entered into a union-shop contract with it, despite knowledge that the Hod Carriers was the exclusive bargaining representative of the re- spondent's employees. The complaint alleged further that respondent misrepre- sented to its employees that a charge of unfair labor practices filed by the Hod Carriers had been withdrawn with the approval of the Board. On August 6, 1945, after the respondent's refusal to bargain, the Hod Carriers filed a Petition for Certification of Representatives. A charge alleging that the respondent had violated Section 8 (1), (3), and (5) was likewise filed on the same date. On September 1, 1945, the Regional Office notified the respondent that charges had been filed. Following the lock-out of July 30, respondents plant remained closed. Some- tinme during the month of August, William Tate, a former employee, spoke to Superintendent Cox about a job at the plant. On or about September 1, Cox introduced Tate to a Kansas City purchaser, who was desirous of having some brick removed from the plant. Although there does not appear to have been a picket line in front of the plant, Cox was not eager to hire any employees to remove the brick and he suggested that Tate enter into a private arrangement to do so. When the job was completed, Tate asked Cox about the possibilities of future employment. Cox told Tate that the plant would not be open "unless they belonged to the Union, that it was a Union plant and they had to have a Union." Tate asked if in the event a charter for a local union was obtained, whether there would be "plenty of work." Cox assured Tate that this would follow. Tate testified that lie wanted some assurance of a permanent job because he "didn't know whether it was a strike or a lockout or just what happened out there." On September 6, 1945, Tate went out to the plant and told Secretary Led- better of his desire to communicate with Rogers. At Tate's request, Ledbetter wrote Rogers a letter requesting "the necessary blanks etc. for the organiza- 828 DECISION S OF NATIONAL LABOR RELATIONS BOARD tion of a clay workers union." On September 11, Rogers wrote the Regional Office of the Board seeking information concerning the outcome of the Mc- Leansboro conference of August 30; because, as Rogers stated in the letter, he assumed from Tate's inquiry, that "there has been no organization desig- nated" by the Board to represent the respondent's employees. On the same clay, Rogers also acknowledged Tate's letter, wherein he asked whether Tate wished to have the charter of Local 618 reinstated, in which event more informa- tion was requested, particularly, whether the employees who were "on strike" had returned to work and were now asking reinstatement of the old charter, or if they were not presently at work did they intend to return. Rogers enclosed with his letter, an application for a new charter. Tate was confused by Rogers' communication, but he told Stelle of his plans to organize a local union . Stelle thereupon remarked to Tate that this was satisfactory provided the Union was "organized under this old contract." Be- cause Tate did not understand the total picture or how to answer Rogers' letter, Stelle dictated a reply to Ledbetter, who typed it, and it was then signed by Tate.13 The exact date of this reply is not known nor was a copy of the letter available at the hearing. The plant was still closed. In the meantime, however, Tate had succeeded in getting seven men to sign an application for a charter of affiliation with the United Brick and Clay Workers. On September 20, Rogers again wrote Tate acknowledging receipt of this application and calling Tate's attention to the fact that three of the signatories were at one time members of Local 618, and inquiring whether the remaining four were presently employed by the respondent. Rogers added : "It may seem like a lot of red tape to answer the questions I ask, but it is not in order for it man or men to sign an application for a charter or become members that are not employees of the company." In the same letter, Rogers sent back the charter of Local 618" and a proposed agreement which was for Stelle's consideration. At the time Tate had sent in the application, none of the signatories thereto were employed by respondent with the possible ex- ception of one, Henry Horn. On September 20, the then Regional Director of the Board wrote Rogers that the Hod Carriers' Petition for Certification of Representatives had been with- drawn without prejudice. He likewise wrote the respondent on the saine day, advising that the petition had been withdrawn but adding: "Case No. 14-C-1072 alleging violation of Section 8 (1), (3), (5) is, of course, still pending in this office." On or about the time of the receipt of this letter, Tate was informed by Ledbetter that the Hod Carriers "had withdrawn, or something to that effect." Tate however, was not shown the Regional Director's letter. Stelle however, caused to be inserted in the local McLeansboro newspaper a notice purporting to be a true copy of the Regional Director's letter. The notice stated that the letter had been received, "with reference to the walkout of our em- ployees which occurred on July 30th, 1945," and referred only to the withdrawal of the petition. There was omitted from the published notice that paragraph of the letter, quoted above, that the charge alleging violation of the Act was still pending. Stelle could only explain this significant omission by attributing it to a mistake of the publisher." 13 Tate testified: "I told him [Stelle] I did not know what it meant or how to 11 rite it, and he said he would fix it up, that is all." 14 This charter was thereafter returned to Rogers with a request to issue a new charter. Rogers could not recall the date this request was made. 11 Tate was not shown the letter until sometime in October, after execution of the con- tract with Local 928. McLEANSBORO SHALE PRODUCTS COMPANY 829 Rogers testified that, upon receipt of the letter notifying him of the withdrawal of the Hod Carriers' petition, he then felt free to proceed to represent and bar- gain for the men now seeking to establish Local 928. Rogers was of the opinion, as he stated at the hearing, that after return of the charter and before receipt of the letter of September 20, the United Brick and Clay Workers had no repre- sentation at the respondent's plant. Rogers came to McLeansboro about Sep- tember 2,, and met with the committee representing Local 928. They discussed the proposed agreement to be submitted to SteRe. Thereafter, the committee and Rogers met with Stolle and on September 26, the new anion-shop agreement, was executed. It is significant that in this agreement Stelle accepted a pro- vision for show up pay, a clause which he would not approve when it was sub- mitted to him by Local 618, the previous March. Following execution of the con- tract on September 26, the plant reopened and production was resumed. Under the provisions of the contract the respondent agreed to employ only members of Local 928, after an initial 12-day trial period. Stelle was asked at the hearing why the respondent, in view of its contention that it was party to an existing contract with Local 618, entered into a new contract with Local 928. He replied : "Because the contract was abrogated by the International and we continued working on a new contract. The old officers walked out on strike, and refused to come back, and we did not have nobody there." Stelle did not know when the "old contract" was abrogated by the International." Conclusions Do the facts set forth above support the allegations of the complaint, that the respondent assisted in the formation of Local 528; entered into a union-shop contract with Local 928, despite knowledge of the Hod Carriers' representative capacity ; and misrepresented to its employees that the charge- of unfair labor practices had been withdrawn with the approval of the Board? In the under- signed's opinion, these allegations are amply supported by the facts. When Tate inquired about employment, .Cox told him that the plant would not open unless the men belonged to "the Union." Although, Cox did not men- tion any union by name, it must have been clear to Tate that the United Brick and Clay Workers was "the Union." Certainly, Stelle made this issue plain when he told Tate it was satisfactory for him to organize a new local provided it was "under this old contract." When Stelle wrote Rogers on Tate's behalf furnishing the information requested by Rogers, Stelle was no innocent bystander in the events. He had previously made it evident to his employees that he was opposed to their representation by the Hod Carriers. He had also made it clear that he would not open the plant if the Hod Carriers was to represent the employees. He expressed no such opposition to their representation by the United Brick and Clay Workers, but on the contrary encouraged membership therein. This is the only conclusion the undersigned can draw from his remarks to Tate, that the organization of the new local was satisfactory provided it was "under the old contract." Encouragement of this nature, coupled with Stelle's vigorous opposition to the Hod Carriers, was sufficient assistance to fur- nish the only impetus that was needed to organize Local 928. The undersigned is also of the opinion that the contract with Local 928 was executed by the respondent with knowledge on its part that the Hod Carriers 15 This testimony of Stelle' s throws interesting light on the respondent 's contention that the contract with Local 618 continued in force and effect. Apparently at some time after March 31, 1945, Stelle concluded that this was not so and in any event whatever doubts he may have entertained were waived when the contract with Local 928 was executed. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still claimed to be the exclusive bargaining representative of the respondent's employees. It is true that the respondent had received notice that the Hod Carriers' Petition had been withdrawn, but it had been informed on September 1, and again on September 20, 1945, that charges of unfair labor practices were pending, and that one of the charges was for a refusal to bargain with the Hod Carriers. The conclusion is inescapable, that respondent knew that a majority of the employees who had been locked out of the plant on July 30 were still adhering to their membership in the Hod Carriers. Furthermore, a majority of the employees still refrained from returning to work, despite a notice inserted in the McLeansboro paper on August 2, 194.5, which invited applications for employment "under our contract with the United Clay Workers' Union." The failure of the employees to return to work was a sure indication of their in- sistence upon their right of representation by the Hod Carriers. Finally, the undersigned concludes that the publication of what purported to be a true copy of the Regional Director's letter was, as alleged in the com- plaint, a misrepresentation to the respondent's employees that the charge of unfair labor practices had been withdrawn. The undersigned cannot accept Stelle's explanation that the omission of the significant paragraph referring to the charges was due to a mistake of the publisher. The undersigned is of the opinion that the fair inference to be drawn from the publication is that re- spondent intended thereby to suggest to its employees, and the public at large, that the charge of unfair labor practices had been withdrawn. The undersigned concludes and finds, therefore, that the respondent by assisting in the formation of Local 928, by recognizing and entering into a union-shop contract with the said Local, despite knowledge of the fact that the Hod Carriers was the exclusive bargaining representative of the respondent's employees, and by misrepresenting to its employees that the charge of unfair labor practices had been withdrawn, interfered with, restrained and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has violated Section 8 (1), (3), and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondent assisted in the formation of Local 618, and that thereafter it attempted to compel its employees to remain members of Local 618, despite knowledge that they had joined the Hod Carriers. The undersigned also found above that respondent assisted in the formation of Local 928, entered into a union-shop contract with the said Local, notwith- standing knowledge of employee representation by the Hod Carriers ; that it disparaged leadership of the Hod Carriers, and finally that it misrepresented to its employees that the charge of unfair labor practices had been withdrawn. It has also been found that the respondent discharged Hobart P. Trout because of his legitimate efforts to org°ainize a local of the Hod Carriers. In McLEANSBORO SHALE PRODUCTS COMPANY 831 addition, it has been found that the respondent locked out all of its remaining employees because of their representation by the Hod Carriers and the re- spondent's insistence that they could return to work only as members of Local 61S. Finally, the undersigned is convinced and has found above that on July 30, 1945, respondent refused to recognize the Hod Carriers, the majority representative of the employees, in an appropriate unit, and thereafter re- fused to bargain collectively with the said Union, and that such refusal con- tinues down to date. Therefore, in order to make effective the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act." Because of the facts found above, the undersigned is of the opinion that the contract entered into by the respondent and Local 928 is invalid and in viola- tion of the Act and interferes with, restrains, and coerces the respondent's employees in the exercise of their rights guaranteed in Section 7 of the Act. Although it may be true that the employees joined Local 928, without the use of force or intimidation on the part of respondent, it is nonetheless true that by reason of Stelle's words and conduct, only men who would join a local of the United Brick and Clay Workers would be acceptable as respondent's em- ployees. In effect, the respondent forced upon future employees representa- tion by a union of its choice and not the choice of the employees. In order to give to the respondent's employees a freedom of selection, it is necessary that the respondent cease and desist from recognizing Local 928 as the exclusive representative of its employees, and that it cease and desist from requiring membership in Local 928 as a condition of employment, unless and until Local 928, or any other union, has been certified as such representative by the Board. Inasmuch as the contract of September 26, 1945, perpetuates the respondent's unlawful assistance to Local 928, and precludes employees from exercising a free choice of the bargaining representative, it is recom- mended that the respondent cease giving effect to the contract or to any ex- tension, renewal, modification or supplement thereof, unless and until Local 928, or any other union shall be certified by the Board as the exclusive repre- sentative of the respondent's employees. Nothing contained herein, however, shall be considered as requiring the respondent to vary any wage, hour, seniority or other substantive provision of its relations with its employees, which have been established in performance of this contract or which will prejudice the assertion by the employees of any rights they may have under such contract. The undersigned has found that the respondent discriminated with regard to the hire and tenure of employment of Hobart P. Trout and of the employees listed in Appendix A. The undersigned has also found that respondent discrim- inated with regard to the hire and tenure of employment of the employees listed separately in Appendix B. However, with respect to these latter employees, it is disclosed that subsequent to September 26, 1945, they returned to work as members of Local 928. Separate provision will therefore be made with respect to the back pay and reinstatement of these latter employees. On the last day of the hearing, it was disclosed that the respondent's brick yard was completely shut down as the result of fire, which occurred on or about March 21, 1946. Having found that the respondent failed and refused to rein- state Trout and the employees listed in Appendix A, the undersigned will recom- mend that respondent offer each of them immediate and full reinstatement to their former_ or substantially equivalent positions without prejudice to their 14 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426 ; May Department Stores Company v . N. L. R. B., 326 U. S. 376. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges. The undersigned further recommends, that the respondent make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned from the date of the discrimination to March 21, 1946, the date the respondent's plant shut-down because of fire, less his net earnings's during the said period. Reinstatement shall be effected in the following manner: the undersigned recommends that when the respondent's plant resumes operations, or when work is undertaken to prepare the plant for the resumption of operations, Trout and those employees listed in Appendix A, qualified to perform such work, shall be hired, displacing if necessary employees who by transfer or otherwise have succeeded to the former positions of any of these employees. Furthermore, all employees hired after July 30, 1945, for the same or substantially equivalent position shall if necessary to provide employment to the persons to be offered reinstatement, be dimissed. If, even after this is done, there is not, by reason ,of a reduction in force of employees needed, sufficient employment immediately available for the remaining employees including those to be offered reinstate- ment, all available positions shall be distributed among such remaining employees, in accordance with respondent's usual method of reducing its force without dis- crimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of respondent's business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence and shall thereafter, in accordance with such list, be reemployed in their former or substantially equivalent positions as such employ- ment becomes available and before other persons are hired for such work. The undersigned recommends further that with respect to Trout and the employees listed in Appendix A, back pay shall resume with respect to each and all of those employees from that date when, absent discrimination, respondent could have hired the said employees in accordance with the principles governing reinstatement set forth above. The undersigned recommends that respondent make whole the employees listed in Appendix B for any loss of pay they may have suffered by reason of the re- spondent's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date that each resumed his employment, on or about September 26, 1945, less his net earnings during the said period. In view of the respondent's failure and refusal to recognize the Hod Carriers, the undersigned further recommends that after resumption of operations by the respondent and on request of the Hod Carriers, that it immediately grant rec- ognition to the Hod Carriers and bargain with it. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following: i" Hereafter , by use of the term "net earnings" is meant : earnings less expenses, such as for transportation , room, and board , Incurred by an employee in connection with obtain- ing work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , or other work- relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. McLEANSBORO SHALE PRODUCTS COMPANY CONCLUSIONS of LAW 833 1. International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, and United Brick and Clay Workers of America, Local No. 928, both affiliated with the American Federation of Labor, are labor organ- izations within the meaning of Section 2 (5) of the Act, and United Brick and Clay Workers of America,. Local No. 618, affiliated with the American Federation of Labor was a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating with regard to the hire and tenure of employment of Hobart P. Trout, and thereby discouraging membership in International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation 'of Labor, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By discriminating with regard to the hire and tenure of employment of the employees listed in Appendices A and B of this report, thereby discouraging membership in International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. A unit comprising all of the respondent's employees, excluding office em- ployees, plant superintendent, foremen and supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, at all times material herein constituted and now constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act. 5. International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, was at all times material herein, and now is, the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the mean- ing of Section 9 (a) of the Act. 6. By refusing to bargain collectively with the International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, as the exclusive representative of the em- ployees in the above-described unit, the respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (5) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8. By discriminating in regard to the terms and conditions of employment of its employees by reason of the Articles of Agreement dated September 26, 1945; with United Brick and Clay Workers of America, Local No. 928, affiliated with the American Federation of Labor, thereby encouraging membership in Local 928, and discouraging membership in the Hod Carriers, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 701592-47--vol. 69-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the un- dersigned recommends that the McLeansboro Shale and Products Company, Mc- Leansboro, Illinois, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, or in any other labor organization of its em- ployees, by the discharge, lock-out and refusal to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of, em- ployment, and any terms and conditions of employment; (b) Refusing to bargain collectively with the International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, as the exclusive representative of all of its employees, excluding office employees, plant superintendent, foremen and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action with respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Recognizing United Brick and Clay Workers of America, Local No. 928, affiliated with the American Federation of Labor, as the exclusive representa- tive of its employees for the purpose of collective bargaining, unless and until .said organization shall be certified by the National Labor Relations Board as the .exclusive representative of said employees; (d) Giving effect to its Articles of Agreement dated September 26, 19-45, with United Brick and Clay Workers of America, Local No. 928, affiliated with the American Federation of Labor, or to any extension, renewal, modification or supplement thereof, or to any superseding contract with this labor organiza- tion, unless and until said organization shall be certified by the Board as the representative of the respondent's employees ; (e) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federa- tion of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the Act; (f) In any other manner encouraging membership in the United Brick and Clay Workers of America, Local No. 928, affiliated with the American Federation of Labor, or discouraging membership in the International Hod Carriers', Build- ing and Common Laborers' Union of America, Local No. 1197, affiliated with the American Federation of Labor, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of employment or any term or condition of employment of any of its employees. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Hobart P. Trout immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges in accordance with the provisions for reinstatement set forth in "The remedy" above ; (b) Offer to the employees listed in Appendix A of this report immediate and full reinstatement to their former or substantially equivalent positions, without McLEANSBORO SHALE PRODUCTS COMPANY 835 prejudice to their seniority or other rights and privileges in accordance with the provisions for reinstatement set forth in "The remedy" above ; (c) Make whole Hobart P. Trout and the employees listed in Appendix A for any loss of pay they may have suffered by payment to each of them of an amount equal to that which he normally would have earned as wages during the period. from the date of the respondent's discrimination to March 21, 1946, and thereafter from that date when, absent discrimination, the said employees could have been offered reinstatement or placement upon a preferential list, in the manner set forth in the "The remedy," less his net earnings during said period: (d) Make whole the employees listed in Appendix ' for any loss of pay they may have suffered by payment to each of them of an amount equal to that which he normally would have earned as wages during the period from the date of the respondent's discrimination, to the date when each of the employees listed in Appendix B were restored to respondent's pay roll, less his net earnings during said period ; (e) Withdraw and withhold all recognition from the United Brick and Clay Workers of America, Local No. 928, affiliated with the American Federation of Labor, as the exclusive representative of its employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, unless and until said organization shall have been certified by the National Labor Relations Board as the representative of such employees; (f) Post in conspicuous places throughout its plant at McLeansboro, Illinois. copies of the notice attached hereto marked "Appendix C." Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, after being signed by the respondent's representative, shall be posted immediately by the respondent upon the 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 tnaterial ; (g) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington' 25, D. C., an original and four copies of a statement in writing„ setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file ^i copy with the Regional Director. As further provided in said Section 33, 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated May 3, 1946. C. F. Bond Raymond C. Collins William Cox R. E. Denny Robert Fann John A. Heil James Holdren Theodore Huffstutler James L. Hutcheraft Herman Hutcheson Roy B. Jackman James E. Johnson Harry Adams Henry Horn APPENDIX A H. E. Jones Thomas Lenard Albert H. Lynn Jesse Mann Orvill Oliver Roman Reyling Isador L. Schuster Roy F. Smith George R. Timmons Willard Trobaugh Clyde Trout APPENDIX B Claud T. Martin Vernie Parker APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will bargain collectively upon request with the International Hod Car- riers', Building and Common Laborers' Union of America, Local No. 1197 (A. F. of L.), as tht- exclusive representative of all the employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: all production and maintenance employees of the McLeansboro Shale Products Company at its McLeansboro, Illinois, yard, excluding office employees, plant superintendent, foremen and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. We will not recognize the United Brick and Clay Workers of America, Local No. 928 (A. F. of L.), as the exclusive representative of any of our employees for the purpose of collective bargaining, unless and until said organization shall have been certified by the National Labor Relations Board as the representative of our employees. We will not give effect to our Articles of Agreement dated September 26, 1945, with United Brick and Clay Workers of America, Loeal 928 (A. F. of L.), or to any extension, renewal, modification or supplement thereof, or to any superseding contract with the said labor organization, unless and until the said organization shall have been certified by the National Labor Rela- tions Board as the representative of the employees of this company. MCLEANSBORO SHALE PRODUCTS COMPANY 837 We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges enjoyed, and make them whole fnr any loss of pay suffered as a result of discrimination : C. F. Bond Raymond C. Collins William Cox It. E. Denny Robert Fann John A. Heil James Holdren Theodore Huffstutler James L . Hutcheraft Herman Hutcheson Roy B. Jackman James E. Johnson Hobart P. Trout H. E. Jones Thomas Lenard Albert H. Lynn Jesse Mann Orvill Oliver Roman Reyling Isador L . Schuster Roy F. Smith George R. Timmons Willard Trohaugh Clyde Trout 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 International Hod Carriers', Building and Common Laborers' Union of America, Local No. 1197 (A. F. of L.), or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All of our employees are free to become or remain members of this Union, or any other labor organization. We will not discriminate in regard to the hire or tenure of employment, or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organizaton. MOLEANSDORO SHALE AND PRODUCTIONS COMPANY, Employer. Dated-- - BY----------------------------------------------- (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.