Joseph Dyson & Sons, Inc.

In the Matter of JOSEPH DYSON & SONS, INC. and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, CIO Cases Nos. 8-R-174.1 and 8-C-1788.-Decided February 7, 1947 Messrs. George F. Hayes and Thomas E. Shroyer, for the Board. Mr. J. W. Havigwrst, of Cleveland, Ohio, for the respondent. Messrs. Charles Rigby, C. E. Bell, and Stanley J. Kwait, of :Cleve- land, Ohio, for the CIO. Mr. Eugene B. Schwartz, of Cleveland, Ohio, for the Independent. Mr. Seymour J. Spelman, of counsel to the Board. DECISION AND ORDER On January 17, .1946, Trial Examiner Henry J. Kent issued his Intermediate Report in the above-entitled proceeding, finding that the respondent 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 Intermediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in and was not engaging in cer- tain other unfair labor practices, as alleged in the complaint. He further found that the respondent had interfered with the election conducted by the Board among the respondent's employees for the purpose of determining a collective bargaining representative, and recommended that the election be set aside. Thereafter, the respond- ent and the CIO filed exceptions to the Intermediate Report and supporting briefs. On July 16, 1946, upon the request of the Te- spondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The re- spondent was represented by counsel and participated in the hearing. Neither the CIO nor the Independent entered an appearance. Thereafter, on July 23, 1946, the Board, deeming it necessary to receive further evidence in the record, issued and served upon the parties an order reopening the record and remanding the case for further hearing. Pursuant to this order and upon due notice, a fur- ther hearing was held on August 29, 1946, before Trial Examiner 72 N. L. R. B., No. 82. 445 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry J. Kent. On October 23, 1946, Trial Examiner Kent issued a Supplemental Intermediate Report, a copy of which is attached hereto, in which he made findings of fact with respect to certain issues stated in the order directing the further hearing. None of the par- ties has filed exceptions to the Supplemental Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at both hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report and Supplemental Intermediate Report, the re- spondent's and the CIO's exceptions and supporting briefs, and the entire record in the case, and hereby adopts the findings and con- clusions, but not the recommendations, of the Trial Examiner, with the exceptions, additions, and qualifications noted below : 1. The Trial Examiner found, as fully set forth in the copy of the Intermediate Report attached hereto, that by its conduct with respect to the strike of January 3-11, 1946, the respondent violated Section 8 (1) of the Act, inasmuch as the purpose and effect of the respondent's action in threatening and purporting to discharge em- ployee Joseph Bozic for initiating the strike were to restrain other employees from joining in concerted activities for their mutual aid and protection, and that the strike, prolonged by -this conduct of the respondent, became, from that point on, an unfair labor practice strike. The Trial Examiner further found that, by its conduct with respect to the strike of February 19-27, 1946, the respondent violated Section 8 (3) of the Act in imposing the penalty lay-off on the 14 strikers when they applied for reinstatement on February 27 and in refusing to reinstate 7 of these strikers to their former jobs on March 15, at the close of the penalty lay-off period. In reaching his con- clusion that the respondent had thus violated Section 8 (1) and (3), the Trial Examiner tacitly assumed that the striking employees were entitled to the protection of the Act. The respondent contends, how- ever, that this assumption is unwarranted because both strikes were in violation of a no-strike pledge contained in an exclusive bargaining contract between the respondent and the independent union of its employees, the Joseph Dyson Victory Club (hereinafter called the Victory Club) ; therefore, the respondent argues, under the principle of the Scullin Steel case,, the striking employees were not entitled to the protection of the Act against reprisal for their strike action. This defense of the no-strike pledge was raised for the first time by the respondent in the brief filed in support of its exceptions to the Inter- mediate Report. It was not pleaded in the respondent's answer to the allegations of the complaint, nor was it argued at the original hearing before the Trial Examiner. Thus, the Trial Examiner was ' Matter of Scullin Steel Company, 65 N. L R B 1294 JOSEPH DYSON & SONS, INC. 447 not aware of the existence of the alleged no- strike pledge and conse- quently did not take it into account in his Intermediate Report. For these reasons, and also because the evidence relating to the nature and scope of the contract was ambiguous and incomplete, we ordered the record reopened for the purpose of taking further evidence on the issues raised by the respondent's defense. The evidence adduced at the further hearing, which we find to be fully and accurately set forth by the Trial Examiner in his Supple- mental Intermediate Report, shows that during the time the employees were out on strike in January and February 1946, there was in effect a valid and operative contract between the respondent and the Victory Club, and that this contract contained a no-strike clause and accorded to the Victory Club exclusive recognition for a collective bargaining unit which included the striking employees. In these circumstances, there being no showing that the respondent had breached the contract or that the strikes were caused by any unfair labor practices, we find, as we did in the Scullin Steel case, that the striking employees were not protected by the Act against the respondent's reprisals for their strike action, and accordingly we shall order that the complaint be dismissed as to these allegations. In view of this holding, we do not reach, and hence do not pass upon, the Trial Examiner's unfair labor practice findings and conclusions with respect to the respondent's conduct just prior to and during the January and February strikes. 2. The Trial Examiner found that the respondent did not violate Section 8 (3) by the 2-clay suspension which it imposed on employee John Richardson on January 2, 1945, for his failure to report for work on December 30. The CIO has excepted to this finding, arguing that the suspension was discriminatory because (a) Richardson was un- aware of the unpublished plant rule of 2 days' suspension for each day of unexcused absence, and (b) the respondent had knowledge of Rich- ardson's concerted activity in behalf of the CIO, because on Novem- ber 29 he had participated in the discussions with the respondent aris- ing out of the alleged reduction in piece rates. There is evidential sup- port for "(a)" but not for "(b)." It is true that Richardson, along with a number of other employees, was asked by the respondent to participate in a discussion on December 29 concerning the claimed re- duction in piece rates. But, so far as the record shows, the respondent requested his participation not because of his position as a member or officer of the CIO, but because he worked on employee Fred Sander's hammer crew which was the center of the controversy. It is also true that the rule of 2 days' suspension for each day of unexcused absence was not published at the time of Richardson's suspension, and it may therefore be true that Richardson had no knowledge of the rule. But, while the respondent may be said to have been unfair in sus- 731242-47-vol. 72-30 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pending Richardson on the basis of an unpublished rule, the facts do not warrant the inference that, in so doing, it was unlawfully motivated. On the same day, shortly after he had been suspended, Richardson asked for and was given his release. He was taken back to work on January 29, 1945, pursuant to the recommendation of the War Labor Board arbitrator, but he was not restored to his former job. However, the Trial Examiner has found, contrary to the contention of counsel for the Board, that this was not discriminatory. We concur in this finding. Thereafter, on February 9, 1945, Richardson was discharged allegedly for absenteeism, under circumstances described in full in the Intermediate Report. The Trial Examiner made no findings with respect to this discharge, on the ground that it was not alleged in the complaint. The CIO has excepted, asserting that no allegation as to this discharge was necessary, as the complaint already alleged that the respondent had discriminatorily discharged Richardson on Jan- uary 2, 1945, and had refused thereafter to reinstate him to his former or a substantially equivalent position. We find no merit in the CIO's position, for the discharge on January 2 and the discharge on Febru- ary 19 were separate and unconnected events. However, although the discharge on February 19 was not alleged in the complaint, it was fully litigated at the hearing and we may therefore make findings with respect to it. The facts regarding this discharge, fully set forth in the Intermediate Report, are, in summary, these : Richardson was ab- sent from work on February 15, 16, and 17, the 3 working days just prior to the February 19 strike. On the first day of his absence, his wife called the plant and notified the respondent that he was ill and unable to work. However, when he reported back for work on the morning of the 19th, he gave as an excuse for his absence that he had been unable to work because of the illness of his wife. Thereupon the respondent discharged him. The evidence shows that the respond- ent posted certain written rules in the plant on February 12, 1945, and, at that time, handed copies of these rules to all the employees. The rules, in effect, provided : that, in order for an absence to be regarded as excused, an employee is required to notify the respondent at 9 a. in. of the first day of such absence and give a satisfactory reason for his failure to report to work; that an employee will be laid off 2 days for each day's absence from work without sufficient cause ; and that absence from work for 3 consecutive days without sufficient cause shall be grounds for discharge. The respondent asserts that it posted these rules on February 12 because it had been criticized in the War Labor Board arbitration hearing, mentioned above, for its previ- ous failure effectively to publicize such rules in the plant. On these facts, we are unable to perceive any basis for finding that, in dis- JOSEPH DYSON & SONS, INC. 449 charging Richardson, the respondent was unlawfully motivated. cordingly, we find no merit in the CIO's exception. Ac- 3. The Objections to the Election. The Trial Examiner found that the respondent interfered with the employees' freedom of choice in the election by the following three items of conduct (described in full in the Intermediate Report, attached hereto) : (1) the penalty lay-off of the 14 strikers on February 27; (2) the distribution of the back overtime pay' awards just prior to the election; and (3) the eviction from the plant of employees Konopka and Dobrich on March 12, 1 day before the election. As to item $k1. Since we have found above that, under the Scullin Steel rule, the respondent did not violate the Act in penalizing the employees who went on strike in violation of their no-strike pledge, we likewise find that, by this conduct, it did not unlawfully interfere with the employees' freedom of choice in the election. As to item #?. We do not agree with the finding of the Trial Examiner that the respondent interfered with the election by dis- tributing the checks covering back overtime pay awards just prior to the election. The Wages and Hours Division of the United States Department of Labor had ordered the respondent to make these pay- ments and had imposed a deadline for their distribution. At the time that the respondent made the distribution, this deadline was at hand. The Trial Examiner found that the interference with the election lay in the special efforts which the respondent made in distributing the awards to the CIO adherents who were not at work at this time be- ,cause of the penalty lay-off which the respondent had imposed on them. The Examiner suggests that such special efforts were un- necessary, as the respondent had reasonable grounds for believing that it could reach all or most of these employees when they came to the plant on the night of March 13 to vote in the Board election. How- ever, as the respondent quite validly urges in its brief, it certainly would have been no less an interference to have distributed the checks .at that moment. Inasmuch as the respondent was under an obligation to distribute the checks at this time in order to comply with the order of the Wages and Hours Division, and in the absence of any showing of an attempt or design on the respondent's part to use this distribu- tion to influence the vote of the employees, we find that there was no interference with the freedom of the election. As to item #3. There remains for consideration the eviction from the plant of employees Konopka and Dobrich on March 12, the day before the election. However, we find it unnecessary to consider this -issue on its merits, for the reason that nearly 2 years have elapsed since the election was conducted. In these circumstances, little pur- pose would be served in setting aside the election, for, so far as the 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record shows, there now exists no bar to the early filing of a new peti- tion. We shall therefore order that the petition be dismissed.2 ORDER Upon the basis of the foregoing fi ndings of fact and the entire record in the case, and pursuant to Sections 9 (c) and 10 (c) of the National Labor Relations Act, and Sections 203.55 fend 203.56, of National Labor Relations Board Rules and Regulations, Series 4, - IT IS HEREBY ORDERED that the complaint against the respondent, Joseph Dyson and Sons, Inc., Cleveland, Ohio, be, and it hereby is, dismissed; and IT IS HEREBY FURTHER ORDERED that the petition for investigation and certification of representatives of employees of Joseph Dyson & Sons, Inc., Cleveland, Ohio, filed by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, in Case No. 8-R-1741, be, and it hereby is, dismissed. INTERMEDIATE REPORT George F. Hayes, Esq, for the Board J. W. Havighurst, Esq, of Cleveland, Ohio, for the respondent Messrs. Charles Rigby and C. E Bell, of Cleveland, Ohio, for the CIO. Eugene B. Schwartz, Esq, of Cleveland, Ohio, for the Independent. STATEMENT OF THE CASE Upon an amended charge duly filed on July 7, 1945, by International Union, United Automobile, Aiicraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, herein called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint on July 28, 1945, against Joseph Dyson & Sons, Inc , herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act. 49 Stat. 449; herein called the Act. Copies of the complaint and the amended charge. accompanied by notice of the consolidated hearing were duly served upon the respondent, the CIO, and the Joseph Dyson Victory Club, an unaffiliated labor organization, herein called the Independent' With respect to the alleged unfair labor practices, the complaint in substance alleges that the respondent: (1) from on or about December 15, 1944, urged, persuaded, and warned its employees from aiding. becoming, or remaining mem- bers of the CIO ; made disparaging and derogatory remarks to its employees about the CIO, its leaders and organizers ; attempted to influence its employees to vote against the CIO at a Board election on Diarch 13, 1945: and unfairly ap- plied stringent plant rules,to the detriment of the CIO s members ; (2) discharged 2 The Trial Examiner found that the eviction also constituted a violation of Section 8 (3) of the Act. However, in view of our holding above, and as the complaint did not allege the eviction as an unfair labor practice , n c shall not pass on this issue I The issues raised by the objections to an election hereinafter set forth in Section III, I, below are, in effect, included in the allegations of the complaint. JOSEPH DYSON & SONS, INC. 451 Fletcher Griffin, William Chatman, and John Richardson on January 2, 1945, and Joseph Bozic on January 3, 1945, and thereafter refused to reinstate Chat- man and Richardson to substantially equivalent employment because each of them engaged in concerted activities and joined and assisted the CIO; (3) on February 27 and on March 15, 1945, refused to reinstate 16 named employees 2 to their former or.substantially equivalent positions following their concerted activi- ties in connection with the strike commencing on February 19, 1945, which strike was caused by unfair labor practices of the respondent; (4) discharged F. Ger- many on March 20, 1945, and Fletcher Griffin on June 5, 1945, for the reason that each of them had engaged in concerted activities and joined and assisted the CIO; and (5) by the discriminatory treatment accorded the above employees, the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the CIO, and interfering with, restraining, and coercing its employees in the rights guaranteed in Section 7 of.the Act. On August 7, 1945, the respondent filed its answer, admitting the allegations of the complaint in respect to the nature and extent of its business operations, but denying that it had engaged in any of the unfair labor practices alleged. Pursuant to notice, a hearing was held at Cleveland, Ohio, on August 28, 29, 30. 31, and September 1, 1945, before the undersigned, Henry J. Kent, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the re- spondent, and the Independent were represented by counsel, the CIO by repre- sentatives, and all 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 all parties. At the opening of the hearing counsel for the Independent by a written motion raised objections to the consolidation, by the Board, of the representation case with the complaint case and moved that the cases be severed. The motion was denied by the undersigned. Shortly there- after, counsel for the Independent moved to exclude all but two witnesses for each party, t rom the hearing room, until such time as the excluded witnesses were called to testify. The motion was granted over objections of counsel for the Board. At the conclusion of the Board's case, the undersigned granted, without objection, a motion by counsel for the Board to dismiss the allegations of the 'complaint pertaining to Myles Laffey, named in paragraph 8 of the complaint as M. Laffey. Also, at this time counsel for the respondent moved to dismiss the allegations of the complaint in respect to F. Germany and J. Pirtz. Ruling on the motion was reserved by the undersigned. Later in the hearing, the motion was renewed and was granted in respect to the case of Pirtz, and also as to Germany in respect to the alleged discharge of Germany on March 20, 1945. Ruling was reserved, however, in respect to that phase of the motion pertaining to the allegations in paragraph 8 of the complaint that Germany was discrimina- torily denied reinstatement on February 27, 1945, and is disposed of hereinafter. At the conclusion of the hearing, counsel for the respondent also moved to dismiss the allegations of the complaint in respect to Joseph Bozic. Ruling on the motion was reserved by the undersigned and is disposed of hereinafter. Oral argument was presented by counsel for the Board and for the respondent and all parties waived the right to file briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: P William Chatman J. Hood C Worthington F. Germany Fletcher Griffin B Konopka R Bonnei W. Rivers J Dobrich 1' London J Carter A Thomas Lee Green . M Latl'ey J Gooden J. Pirtz 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Joseph Dyson & Sons, Inc, an Ohio corporation with its principal office and plant at the City of Cleveland, Ohio, is engaged in the manufacture of steel and aluminum forgings. During the calendar year of 1944, the Company's total volume of business exceeded $1,000,000 A substantial portion of the products manufactured and the raw materials purchased is shipped in interstate commerce. The Company conceded at the earlier hearing in Case No. 8-R-1741 that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and Joseph Dyson Victory Club, an unaffiliated labor organization, are labor organizations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events 1. Background The respondent granted recognition to the Independent as the collective bar- gaining representative for certain of its employees in 1942. On May 1, 1942, it entered into a collective bargaining agreement with the Independent covering those employees. This agreement was for a term of 1 year, with provision for automatic renewal from year to year thereafter unless either party served notice of termination 30 days prior to any anniversary date. No notice has been served by the parties to the agreement. During 1944, the CIO began an organizing campaign among the respondent's Employees and many of them joined it during November and December 1944. On December 20, 1944, the CIO, by letter, informed the respondent that it repre- sented a substantial number of its employees and. requested a, meeting for the purpose of drafting a consent election agreement.. After waiting for several days without receiving a reply, the CIO filed a Petition for Investigation and Certification of Representatives with the Regional Director for the Eighth Re- gion on December 30, 1944 Following a hearing on the petition on January 16, 1945, the Board, on February 23, 1945, issued its Direction of Election ordering an election to determine whether or not the respondent's employees in the unit found by the Board to be appropriate, desired to be represented by the CIO or the Independent.' On March 13, 1945, at a Board conducted election, 43 ballots were cast, 24 voted for the Independent, 14 voted for the CIO, and 5 ballots were challenged. On March 16, 1945, the CIO by telegram to the Regional Di- rector, protested the election on the ground that the company had interfered with the free choice of its employees to select a bargaining representative. On April 28, 1945, the Regional Director, following an investigation, issued his re- port on the CIO's objections He found, in effect, that the respondent, (1) by making derogatory statements concerning the CIO and requesting its employees to vote for the Independent, and (2) by refusing to permit two employees who were members of the CIO to work in the plant on March 13, 1945, because the Independent's members refused to work with them, interfered with the free choice of its employees to select a collective bargaining representative and recom- ' Matter of Joseph Dyson 5 Sons, Inc., 60 N. L R B. 867 JOSEPH DYSON & SONS, INC. 453 mended that the election be set aside. On May 3, 1945, the company filed ex- ceptions to the Regional Director's report with the Board, alleging in substance that his report was based on an ex parte investigation during which only wit- nesses for the Union were interrogated ; denying the truth of some of the state- ments made during the course of the investigation by CIO witnesses ; and claiming the formal objections to the conduct of the election were neither timely nor duly filed. On May 8, 1945, the Board, after considering the respondent's exceptions to the Regional Director's report, issued its order directing a hearing on Objec- tions to Election (8-R-1741). On April 30, 1945, the CIO filed a charge and on July 7, 1945, an amended charge with the Regional Director alleging that the respondent had committed unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. The Board, on July 12, 1945, ordered that a hearing on Objections to Election (8-R-1741) and on the unfair labor practice charge (8-C-1788) be consolidated. 2 The discharges of Bozic, Chatman, Richardson, and Griffin in January 1945 Shortly after work commenced on the morning of December 29, 1944, Fred Sanders, the hammersmith on the so-called hook bending hammer, told Plant Superintendent Joe Rossman he was going to quit' Rossman reported the matter to Robert McGrath, respondent's Vice-president and General Manager. Accord- ing to McGrath's uncontradicted testimony which the undersigned credits and accepts as true : he sent for Sanders and asked him why he was quitting, where- upon Sanders told him that he wanted to quit because he believed that trouble was brewing in the plant; and that during this conversation with Sanders, Superintendent Rossman came into his office and told McGrath that Joseph Bozic and some of the other employees had stopped working and walking through the plant shouting that piece sates had been cut Following Rossman's report to him, McGrath asked Sanders to remain in his office and he sent for Plant Manager Kopanski, who had remained at home on that morning because of illness He also requested Philip Delain and Tony Rossman, members of the Independent's Committee, employees Bozic, Frank Gorup, and John Richardson to come to his office 5 In response to a question from Kopanski directed to the above group as to who was claiming that piece rates had been cut on the hook bending hammer, Bozic replied that he was. Kopanski called Bozic a liar, and piece rate data was biought in covering a previous period during which Bozic worked on the hammer which indicated that the " In connection with the plant operations there are 9 drop forge hammers in the shop, of which two are specialized , and one hydraulic press in addition to other machine shop equipment. Customaiily, 6 hammers are working when the shop is operating at full ca- pacity Each hammer requires a crew consisting of a hammersmith, a liammerdiiver, and from 1 to 4 hammer helpers The hammersmith is the most skilled man on a crew He directs all operations and must have some general knowledge of metallurgy in order to deteimine the proper heating temperature required on metals being forged The hammer driver operates the mechanism controlling The lifting and dropping of the hammer Ham- mer helpers ordinarily have no specialized skill and perform the labor of setting the metals being forged on the hammer bed in accordance with instructions given them by the hammersmith on the crew. Since most of the respondent's jobs are done on special orders requiring only one or a few of the same kind 'of product, the size of the crew required varies with the type of job On some of the operations only one hammer helper is needed, while others may require as many as 4 Consequently, these helpers are more or less frequently transferred to work assignments on any of the several hammers in the shop Also, on occasions when all of the helpers are not needed for hammer work they may be transferred to work on the hydraulic press or to common labor work 5 Gorup was the hammer driver on Sanders' crew and Richards was working as a helper on it at the time. Sanders had been the smith on this hammer for several months Bozic, who was presently the liammersmith on the 4000 pound hammer, had been the smith on Sanders ' hammer before Sanders was hired at the plant 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates had not been cut No substantial evidence was offered by the Board or the C. I. O. to substantiate Bozic's claim that these rates had been cuts The undersigned credits the uncontradicted testimony by McGrath, Kopanski and Rossmau that the rates had not been cut During the above discussion in his office, McGrath sent word for the employees to gather in the machine shop for a meeting Sanders, whom the respondent claims to have been one of the most proficient hammersmiths ever on its pay roll, refused to go back on his job and was given a release on that same morning McGrath opened the general meeting at about 10 o'clock on that morning, by reading a telegram from the War Production Board requesting the respondent to operate the plant on New Year's Day. Kopanski then addressed the meeting. He stated, in effect, that the respondent's products were badly needed by the Armed Forces and that any interference with production was unpatriotic, and denied that any piece rates had been or would be cut lit the plant and administered a reprimand to Bozic for causing the work stoppage on that morning During Kopanski's speech he was frequently interrupted and heckled by an employee named Federan When he asked Federan, "Why are you butting in," the latter claimed lie was the representative of all of the employees and said that he was the C. I. 0 shop steward in the plant' Kopanski then asked all of those present who were represented by Federan to hold up their hands About 6 of approxi- mately 45 present did so. Thereupon Kopanski, in effect, stated that the man- agement had entered into a signed agreement with the Independent, that it could only recognize that organization as representative of the employees, and that Federan had no right to speak for the employees as a committeeman.' The following facts, inter alia, regarding certain incidents which took place prior to the February 19, 1945, strike were stipulated by counsel for the Board and counsel for the respondent. On December 29, 1944, at approximately 9 a in, a substantial number of the employees, approximately 25 per cent, started to leave the plant, which broke up the crews and caused a plant shutdown; and then, at about 10 a. in. on the same day and before the men left the plant, management called a meeting in the Machine Shop and asked the employees to vote with respect to returning to work on Saturday, December 30, which was the following day. The vote was overwhelmingly to return Saturday, December 30, 1944 On Saturday, December 30, 1944, all of the employees returned with the exception of seven men, namely, Griffin, Richardson, Chatman, Federan, Gorup, Gooden, and Milazzotto; on January 2, 1945, these seven, with the exception of Federan, returned to work. Chatman was fired, Griffin and the others, with the exception of Federan, were suspended for two days .0 Bozic was not available to testify, because he had been inducted into the Armed Poices. ° It is noted that Bozic was the shop steward for the C. I. 0 , and it is not clear from the record that Federan was even it member 'The above findings are based upon the testimony of respondent's witnesses McGrath, Kopanski, Rossinan and Detain However, Boaid witnesses Chatman, Richardson, Griffin, and Thomas testified, in respect to this meeting, that Kopanski also requested all C I 0 members to stand on one side of the room and Independent members on the other side and Chatman, Richardson and Bonner in addition testified that either McGrath or Kopan- ski told them they could not work in the plant unless they joined the Independent Fiom his observation of these latter named witnesses and all of the evidence, the undersigned concludes that full reliance may not be given to their testimony and he, accepts the above version given by the respondent's witnesses as the more credible version of the incident a Other evidence in the record shows that later on this same day Richardson and Griffin asked for and were given releases; that Chatman had pre%iously been discharged on De- cember 20, 1944, because of his had attendance iecord; that lie was subsequently reinstated and warned at the time that further similar delinquencies would result in his summary JOSEPH DYSON & SONS, INC. 455 On January 3, Bosic, a hammersmith and Piercey, a hammer helper. walked off the job They were told by Kopanski, the Plant Manager, that if they left they were discharged The two men left the plant 15 On the afternoon of January 3, Bosic and Federan carried on a two-lean picket line around the plant. This was started by Federan, who had been suspended that day for a period of four days for unexcused absences Decem- her 30 and January 2, and Federan was later joined by Bozic in the picket line. The rest of the employees remained at work. From January 4, to January 10, there was a picket line in front of the plant for the most of the time, and the plant operated on a partial basis" On January 11, pui sunlit to an agreement to arbitrate, the cases of five men and said arbitration was carried on under the auspices of the War Labor Board, involving the following men Bozic, Chatman, Richardson, Griffin and Johnson l" Work was resumed without interruption Pursuant to an award of the arbitrator appointed by the War Labor Board, the first four men returned to work on January 2913 While the evidence does not clearly depict all that transpired on January 11, apparently all of the employees out on strike from January 4 to January 10, except Bozic, returned to work on the morning of January 11. When Bozic, Chatman, Richardson and Griffin reported for work on the morning of January 29, Superintendent Rossnian assigned Bozic, as hammersmith, and Joe Dobrich, as hammer driver on the 4000 pound hammer; " Chatman, Richardson and Griffin were then assigned to work on the crew with them as helpers.1b On the day discharge , and that Richardson admittedly had been previously discharged in November 1944, for some reason not stated in the record In addition, Chatman and Giffin each testi- fied that their failure to report on December 30 was due to illness and Chatman and Rich- ardson claimed, on cross-examination, that it was their understanding at the meeting in the plant on the preceding day, that they were privileged to either work or remain away from work on this (lay This last mentioned testimony given by Chatman and Richardson is not credited Although Federan, Gorup, Goodell, and Milazzotto were also laid off for being absent from work on this day, the complaint does not allege their lay-offs to be discrinminatoiy There is no substantial evidence in the record depicting the nature and extent of the C. I O.'s activities during its organizational campaign, or pointing out any individual activities on behalf of the C I 0 by any employee except in respect to Fed- eran. The record clearly shows, however, that Chatman was outstanding for his poor attendance record, and that several months prior to the appearance of the C I 0 at the plant another employee named Johnston had been laid off for violation of a plant rule requiring an employee to submit a satisfactory excuse for his failure to report for work The facts above,, especially those testified to by Chatman, Richardson and Griffin, clearly show that the absences from work of Chatman, Richardson, and Griffin on December 30, may not be attributed to either C I 0 or concerted activities 10 Neither Piercey nor Bozic testified concerning their seasons for leaving the plant. However, McGrath testified that on this occasion Bozic attempted to start a walkout and that Superintendent Rossnian told Bozic and several of the hammer helpers on his crew who started to walk out with him that they would be discharged if they left the plant. After Rossman spoke to the men, four of the employees, who started to leave with Bozic, remained at work for the balance of the day and weie obliged to take assignments to yard labor work because no hammersmith was available to operate Bozic's hammer 11 About 14 of the C. I 0 adherents participated in this strike ii There are no allegations in the complaint in respect to Johnson la Willie counsel for the Board and for the respondent did not expressly stipulate that the C I 0 initiated the proceedings before the Was Labor Board, they did, in effect, agree on the record that such was the case, and the undersigned so finds. 11 The hammer had not been operated during Bozic's absence, except on in few occasions when Superintendent Rossman used it, hence when the four men returned to work it was necessary for the respondent to select a crew to operate it 15Prior to January 2, Giffin had been working on this same hammer with Bozic and Dobiich, and Chatman and Richaidson had been working as helpers on the smaller hammers 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these assignments were made, Chatman and Richardson voiced no objections to their work assignments.1e Superintendent Rossman testified that on this occasion he assigned Bozic, Dobrich and Griffin to the 4000 pound hammer, because Bozic and Dobrich respectively had previously been the regular smith and driver on the hammer and that Griffin had generally worked with them as one of the helpers ; and that in addition to those three employees two more helpers were required to operate the hammer. He claimed that since it was customary practice to transfer helpers and assign them to any hammer where their services were required, he did not consider the assignment given to Chatman or Richardson on this occasion either unusual or prejudicial and that he did it to avoid interfering with produc- tion by taking helpers from other hammer crews that were then functioning smoothly. His explanation for assigning Chatman and Richardson to work on this crew appears reasonable. Accordingly, the undersigned accepts Rossman's testimony as true and finds that the asserted grievances of Chatman and Richard- son were more fanciful than real17 3. The February 19, 1945, strike Richardson was absent from his work at the plant on February 15, 16, and 17, the 3 working days just prior to the February 19 strike On the first day of his absence his wife called the plant and notified the respondent that he was ill and unable to work However, when he reported back for work on the morning of February 19, he gave as an excuse for his absence that he had been unable to come to work because his wife had been ill. The respondent discharged him this same morning." The complaint does not allege this discharge to be dis- criminatory and the undersigned makes no finding in respect to it. 1° It appears, however, that a few days later a representative of the War Labor Board, whose last name was Daniels, called McGrath on the telephone and told him that repre- sentative Kwiat of the CIO had voiced a complaint to Daniels that Chatman and Richardson had not been ieinstated to their former jobs at the plant. McGrath testified, without contradiction, and his testimony is credited that, in effect, he told Daniels that the respondent had followed its customary practice in assigning the two employees to work on January 29, and apparently his explanation had been satisfactory for since that time no turther complaint had been made regarding the matter by either the War Labor Board or the CIO There is no substantial evidence in the record indicating that woik on this hammer was more difficult or less desirable than work on the other hammers On the other hand, McGrath testified, without contradiction and his testimony is credited, that experienced helpers on the 4000 pound hammer received a higher base rate of pay than helpers on the other hammers and on an average earned slightly more money than those working on, the other hammers Griffin testified, and his testimony is credited by the undersigned, that a short time before Februaiy 19, Chatman and Richardson requested Superintendent Rossman to transfer them to work on hammers which they had previously woi ked on , he also said that, on this occasion, Rossman told them he would talk to them later regarding changing their assignments; and that following this conversation with Rossman they told Griffin that they intended to walk out on strike because they did not like their present jobs 11 See footnote 4, supra '8 These findings are based upon the uncontradicted testimony of Kopanski, which the undersigned credits and accepts as true The evidence shows that the respondent posted certain written rules in the plant on February 12, 1945, and at the time handed copies of those rules to all the employees The rules, in effect, piovided that in order for an absence to be regarded as excused, an employee is iequired to notify the respondent by 9 a in on the first day of such absence and give a satisfactory reason for his failure to report for work , that an employee will be laid off 2 days for each clay's absence from work without sufficient cause, and that absence from work for 3 consecutive days without sufficient cause shall be grounds for discharge The respondent asserts that it posted these rules on Feb- ruary 12 because it had been criticized in the arbitration hearing mentioned above for its previous failure to effectively publicize such rules in the plant. JOSEPH DYSON & SONS, INC. 457 Shortly before noon on this same day, 12 employees went out on strike." On the next morning, employees Peter London, who had remained at work for the balance of the day on February 19, and B. Konopka, who reported back to work on that morning following a lay-off for an unexcused absence from work during the preceding week,-joined in the strike activities. The strike was the result of a spontaneous - and -unplanned move by inexperienced men to express disap- proval with what they considered discriminatory treatment accorded to CIO adherents by the respondent. The reasons for striking given by the strikers during the hearing were : that Chatman and Richardson were not returned to their former jobs following their reinstatement on January 29; 20 that CIO ad- herents had been discriminatorily assigned to yard labor work ; 21 and that piece rates on the fork bending hammer had been cut by the respondent. 22 The striking employees made no substantial efforts to press their claimed grievances before walking out on this occasion and did not inform the respondent of their intention to strike or their reasons for the strike. The respondent claims that because of their actions the men had not gone out on strike, but were merely employees absent from work without cause. The record refutes the respondent's contention, for McGrath, in his testimony, characterized the incident as a walkout, and Kopanski testified that the plant was picketed on occasions by the strikers, following the walkout. The respondent at least knew that Chatman and Richardson had asked for and been refused a change in their work assignments. Under these circumstances the absence of the employees from work constituted a strike 21 No new employees were hired at the plant during the strike The record shows that a few days prior to February 19, the respondent lost the services of Joseph Bozic and-Joseph Pirtz, both skilled hammersmnths 24 and that for part- of February and most of March Hammersmith Joseph Makowski was absent from work because of appendicitis McGrath testified, and his testimony is credited, that due in part to a shortage of hammei smiths and the disruption of the hammer operations by the walkout of a number of helpers, the hammer crews were completely reorganized on or about February 21, when the plant resumed operations during the strike. The services of the Conciliation Division of the United States Department of Labor were requested by some person, not identified in the record, to assist in settling the dispute. ' On orcabout February 27, a Conciliation Commissioner requested,the .strikers -toy return to work and also notified McGrath that the strike had been called off and told him that the strikers would return to work. 19 William Chatman, Fletcher Griffin, J Dobrich, Lee Green, J Hood, C Worthington, R Bonner, J Carter, J Gooden, F Germany ,^W Rivers. A Thomas. 20 As appears above, the undersigned found this contention to be lacking in merit. 21 No substantial evidence was offered to show that CIO adherents had been given discriminatory wbik assignments before this strike Apparently the witnesses were con- fused and were, in fact, refer, ing to work assignments later offered to some of the strikers on March 15, 1945, which the writer discusses below in this report 22 This contention was originally raised by Bozic on December 29, 1944 As found above, there was no substantial evidence to support it, and if it were true there is no basis to support a finding that such action would constitute an unfair labor practice 22 See Matter of American Manufacturing Concern, 7 N L R . B. 753 21 Bozic left the plant preparatory to entering the Army on or about February 15. On February 14 Pirtz had been granted a leave of absence to work on his farm and thereafter before the expiration of his leave he received his induction notice and did not return to work at the plant before entering the Army. The respondent has been unable to hire ham- mersmiths to replace these two men. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 The lay-off of the strikers on February 27, the refusal to reinstate on March 15 The 14 strikers returned to the plant on February 27 and offered to return to work pursuant to the request of a 'Commissioner of Conciliation, above mentioned. Plant Manager Kopanski informed the group that each of them was laid off 2 days for every working clay that they had been absent from the plant during the strike He then told them to report back to work on March 15 The record further shows that Dobrich, Green, Hood, Griffin, Germany, Worth- ington, Bonner, Carter, Gooden, Rivers, Thomas and Chatman had previously all been regularly employed in the hammer department as drivers or helpers on hammers or on the hydraulic press ; and that Dobrich, Green, Hood, Griffin, and Germany were the only ones in the striking group who were reinstated to jobs in the forge shop when they reported back for work on March 15, although no new employees had been hired to fill the jobs of any of the strikers" Worthing- ton, Bonner, Carter, Gooden, Rivers, Thomas and Chatman were individually called to Kopanski's office after the other six former strikers had been assigned to work on this morning, and, in effect, told by Kopanski that there were no more jobs available in the hammer department ; and that they would either have to accept jobs as common laborers with a reduction in pay or be terminated and take a release26 Of this latter group, Worthington was the only employee to accept a labor job Bonner, Carter, Gooden, Rivers, Thomas and Chatman re- fused to take a labor job and either requested or were given releases by the respondent and left the plant. None of this group has since been offered a job in the hammer department. 5 Interference with the election On March 10, 1945, the respondent requested Dobrich and Konopka to return to work on March 12, notwithstanding the fact that Kopanski had laid them off with the other strikers on February 27 until March 15 When they reported for work on the morning of Maieh 12, the Independent adherents, who had con- tinued to work in the plant during the sti ike, held a meeting in the plant and threatened to walk out if Dobrich and Konopka were permitted to return before 25 Konopka, who previously returned to work on March 13, was given a regular job in the hammer department , and London , also one of the strikers , returned to his regular job as a yaid laborer on March 15, at his former rate of pay 26 This finding is based upon the testimony offered by the Board and the respondent con- cerning this incident . In addition , however , Boaid 's witnesses Thomas, Carter, and Bonner testified that on this day they were also told that their wages would be reduced from 80 cents an hour to 65 cents , and that their CIO activities were responsible for their demo- tions McGrath denied that the respondent had stated to any of the employees that their wages would be reduced to 65 cents ; he said that under War Labor Board regulations the respondent was obligated to pay them 75 cents an hour , the highest rate classification for employees engaged on ordinary labor work , and Worthington 's testimony to the effect that he was reduced from 80 to 75 cents an hour for such work after accepting one of the labor jobs offers convincing support to McGrath's testimony Accordingly, the undersigned credits McGrath's denial that the respondent threatened to reduce the wages of any of the men to 65 cents an hour In respect to the testimony of Board's witnesses that the respond- ent also told them that the demotions were due to their CIO activities, the record fails to show that their testimony was categorically deiced' However, the version of these inci- dents as testified to by the respondent's witnesses , in effect constitutes a denial that any anti-CIO statements were made at the time. Fiona his observation of the Board's wit- nesses who gave such testimony , the undersigned deems that full reliance may not be given to their testimony and lie believes that such testimony was based upon erroneous conclu- sions rather than upon a factual foundation Because the undersigned finds below that the seven employees not reinstated to their regular jobs were discriminated against, he deems it unnecessai y to fui ther resolve the conflict in the testimony JOSEPH DYSON & SONS, INC. 459 March 15. Immediately after this meeting, the respondent ordered Dobrich and Konopka to leave the plant because of the action taken by the Independent group 2Y Later on that same day, it was ascertained that Konopka had not partic- ipated in the strike activities until February 20 and it was agreed between the respondent and the Independent that Konopka might return to work on March 13, but the Independent refused to withdraw its objections in i cspect to Dobrich's return before March 15 Konopka returned to his regular job on March 13, but Dobrich was not permitted to return to work until Maich 15 These employees together with Green and Hood are still working at the plant on their regular jobs 28 Also, on March 12, 1945, general manager McGrath visited the homes of several of the striking CIO adherents who had been laid off until March 15, for the asserted purpose of giving them checks for corrections in back overtime wages claimed due them by the Wages and Hours Division of the United States Depart- inent of Labor McGrath claimed that the Wages and Hours agency required proof that the back wages were paid on or before March 15; and that because he had been unable to get receipts ordered from the respondent's printer until March 8, he was forced to make a special effort to settle the accounts with the employees out on strike before the 15th. He testified that he found employee Thomas at his home on the afternoon of the 12th and said that after explaining to Thomas and his wife what the check was for, he handed it to Thomas and took a receipt from him for the amount stated on the check. After leaving the Thomas home, lie said he was unsuccessful in locating several of the others on that day and said that lie left word at their homes for them to call at his office for their checks on the following day. On March 13, several of the employees so notified came there and were given their checks. There was a carton of cigarettes on McGrath's desk when some of the above-mentioned employees called for their checks. At the time, the cigarette shortage was prevalent and some of the men expressed surprise on observing McGrath's large supply. He said lie gave two or three of the men a pack Carter, one of those who called for his check, testified that when McGrath handed him the cigarettes, he told Carter that it was a gift from the Independent and asked him to solicit votes for the organization. Gooden, another CIO adherent, who called for his check on the same day, testified that when McGrath handed him the cigarettes he said, "Come with us, to hell away with the CIO." 29 Thomas, during his direct-examination at the hearing on August 28, testified that about all McGrath told him, when lie called at his home on March 12, was that the respondent did not want anyone to come in the plant and tell it how to run the shop. However, on the following morning when Thomas returned for cross-examination. lie testified that McGrath had asked him how he was going to vote; told him to think the matter over carefully and vote right; and then promised to give Thomas his "same" job back when he returned to work on March 15, provided he voted for the Inde- pendent at the election 30 McGrath , in effect, denied that he criticized the CIO, 2e It is noted that this was the day before the Board conducted an election at the plant, participated in by the CIO and the Independent. 29 Germany and Griffin who were also reinstated to their former jobs on March 15 have since been terminated, but the record fails to show that their terminations were discrim- inatory. 21 From his observation of the witnesses and from all of the evidence , the undersigned was convinced that Carter and Gooden were not trustworthy witnesses and took advan- tage of the incident by giving an exaggerated version in respect to it He accepts McGrath's testimony that the gift of the cigarettes was purely voluntary on his part and that the Independent was not Involved in the transaction. so It is noted that Mrs. Thomas, who was present during the conversation between Thomas and McGrath , was not called on to corroborate her husband 's testimony. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or that he requested any of his employees to vote for or solicit votes for the Independent, during any of his conversations with them; or that Kopanski, who was generally present in his office at the time when most of these conversations were held, said anything to the employees who called there, other than to merely extend them a greeting McGrath further testified that the only time these subjects were brought up was during a conversation with Carter and Hood, during which, he claims, they stated to him that they had only gone out on strike because some of the CIO adherents threatened them with bodily harm if they did not do so, and that he merely told them, "that is up to you,-there is an elec- tion this afternoon and you can express your opinion at it " The testimony of William Rivers, one of the CIO adherents, regarding his conversation with McGrath at the time he was given his overtime check offers some support to McGrath's version, for Rivers gave no testimony that he was requested to vote for the Independent The undersigned deems it unnecessary to resolve the con- flict raised by the above versions regarding these purported conversations for the reasons set forth immediately below. The record clearly indicates that the respondent had reasonable grounds for believing that all or most of the laid off employees, who were adherents of the CIO, would visit the plant on the night of March 13 to vote at the Board election. It would seem unnecessary, therefore, for the respondent to make special efforts to seek out CIO employees at their homes for the purpose of handing them the back overtime checks on the day before the election. Since the record also shows that the respondent had discriminatorily laid off these employees on February 27, for engaging in concerted strike activities there can be little doubt that the em- ployees fully realized at this time that the respondent Ni'as opposed to the CIO. Under the circumstances the payment of appreciable sums of money by an em- ployer, on the day before or the day of an election, to employees who have drawn no pay for about 3 weeks, raises a fair inference that its conduct affected the results of the election. 6. The discharge of Fletcher Griffin on June 5, 1945 Griffin's employment at the plant commenced in April 1M4 . Since that time he has regularly been employed as a hammer helper. He joined the union in Novem- ber 1944, and participated in the CIO or concerted activities discussed above to substantially the same extent the other CIO adherents did He participated in the February 19 strike and on February 27 was one of the group of 14 strikers laid off by Kopanski for those activities. He was-also one =of'the 7 strikers who were returned to work at their regular jobs on March 15.- It therefore appears that he was a reasonably satisfactory workman and the respondent makes no contention that his work was unsatisfactory. About May 15 he sprained his back while working on a job and was treated by a physician for this injury . The doc- tor who treated him discharged him as cured on or about May 23 and told him that he was able to resume his work. He failed to report back on the job until May 29. He worked on May 29, May 31 ( May 30, Memorial Day , was a plant holiday ) and on June 1, 1945, but failed to report for work on Saturday, June 2, or on Monday, June 4. On the afternoon of June 4 he called the plant by tele- phone and as an excuse for his absence stated that his girl friend's grandmpther, who resided in Georgia , had died on June 1; that he had been unable to come to work on Saturday, June 2 or on Monday, June 4, because his girl friend requested him to accompany her to her father's home in Cleveland on Saturday and to escort her to a railroad station on Monday because she was leaving by train, on that day, for Georgia to attend her grandmother 's funeral ; and he then stated that he would return to work on the following morning , namely Tuesday , June 5. JOSEPH DYSON & SONS, INC. 461 According to the testimony of Ruth Walter, the respondent's employment manager, which the undersigned credits, the respondent had not questioned Griffin's excuse previously given, namely that his absence from work from May 15 until May 29 was occasioned by a back injury until it received what was con- sidered to be a lame excuse for his last absence from work" Walter further testified, that she then called the physician who had treated Griffin for his back injury and learned that the latter had discharged Griffin as cured on May 23 and told him that he was able to return to woik; and that the respondent then de- cided to discharge Griffin because of his poor attendance record According to Grifhn, Kopanski discharged him on the morning of June 5 when he reported for work on that (lay, and at the time, told Griffin that lie was being discharged because of his poor attendance iecord. On the basis of the foregoing facts and all of the evidence in the record. The undersigned concludes and finds that Griffin was discharged on June 5 because of his poor attendance record. B. Concluding 7indiiifs 1. The alleged discriminatory discharges and refusals to reinstate Chatinan, Richardson, Griffin and Bozic in January 1945 There is no substantial evidence, in the record showing that CIO affiliation was a factor entering into the discharge of Chatman and lay-offs of Richardson and Griffin on January 2, or that such affiliations were even known to the respondent at the time Furthermore, there is no showing that the failure of employees to report for work on December 30, 1945, was related to concerted activities for the purpose of collective bargaining and other mutual aid or pro- tection within the meaning of the Act Consequently, the respondent is not required to justify its conduct regarding the actions taken by it respecting these three employees. In the absence of the "discrimination for union or concerted activities" element the penalties imposed by the respondent were no more than an administrative matter concerned with claimed unsatisfactory employer-em- ployee relations which were disposed of by discharging Ohatman and laying off Richardson and Griffin for 2 days each. Under such circumstances, this is a discretionary privilege of employers. In respect to the Board's contention that Bozic was discriminatorily dis- charged on January 3, 1945, the record shows that the respondent attempted to discharge him for leaving his work on that day to walk out on strike His action was a contributory cause of the strike which began on January 4 and which was terminated on January 11 by the return to work on that day of all the strikers, except Bozic. Under these circumstances, the purported discharge of Bozic had no actual effect on his tenure of employment but was rather a tactical maneuver designed to induce Bozic and other employees to abandon their contemplated strike activities and resume work. Consequently it did not constitute discrimination in regard to his hire and tenure of employment within the meaning of Section 8 (3) of the Act. Inasmuch, however, as the purpose and effect of the respond- ent's action in threatening and purporting to discharge Bozic for initiating a strike, was to restrain employees from joining in concerted activities for their mutual aid and protection, the respondent thereby interfered with, restrained, a' Admittedly Griffin 's attendance record had been poor , for he testified that he had lost much time from work due generally because of claimed illness or injuries, but also on other occasions because he failed to wake up in time to go into work on some mornings 462 DECISIONS Or NATIONAL LABOR RELATIONS BOARD and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) thereof. It is further found that the strike started by Bozic on January 3, was prolonged by this conduct of the respondent and hence from then on became an unfair labor practice strike.32 Although the record indicates that all of the employees who participated in the strike with Bozic, except Bozic, returned to work on January 11, there is no evidence in the record showing that Bozic offered to return to work uncondi- tionally on that day; instead it appears that the CIO resorted to arbitration proceedings under War Labor Board pioceduies to litigate a claimed labor dispute concerning Bozic, Chatman, Richardson, Griffin and another employee not named in the complaint. As a result of the War Labor Board proceedings, Bozic, Chatman, Richardson and Griffin were returned to work on Januaiy 29, 1945. The Board contends that Chatman and Richardson were not given substan- tially equivalent employment following their return to work on January 29, but makes no similar contention in respect to Bozic and Griffin On the basis of the foregoing facts and all of the evidence in the record, the undersigned concludes this contention is without merit, for the record indicates that the respondent substantially confoimed to its general plant policy regarding work assignments to employees in the same category with Chatman and Rich- ardson when these two employees returned'to work on January 29 On all of the above he concludes and finds that they were not discriminated against and that the objections regarding their work assignments were captious and fanci- ful rather than sound. The undersigned accordingly finds that the allegations of paragraph 6 in the complaint regarding discrimination in respect to the hire and tenure of em- ployment of Bozic on January 3, 1945, and Chatman, Richardson and Griffin on January 2, 1945, have not been sustained by proof He finds, however, that by threatening and purporting to discharge Bozic and other striking employees and thereby prolonging a strike, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) thereof" 2. The lay-offs and failure to reinstate strikers for their participation in the February 19 strike The respondent, in effect, contends that on February 27, 1945, it was privileged to lay off the 14 employees named in Appendix A because they had been absent from their work for insufficient cause from February 19 to February 27, 1945, thereby violating respondent's rules in effect at the plant ' Admittedly the respondent had knowledge that the above employees were out on strike. Therefore the work stoppage which began on February 19, 1945, was a labor dispute, during which the strikers retained their status as employees and were protected by the Act trom any discrimination against them.35 Since the strike was not caused by unfair labor practices, the respondent was free at once to replace the strikers with new employees. The respondent, how- ever, was not free on February 27, 1945, to refuse to reinstate the strikers upon their application for reinstatement, for new employees had not been hired to a See Matter of American Manufacturing Concern, 7 N L. R. B. 753; Matter of Rock. wood Stove Works, 63 N L R. B 1297. 33 Cf. Matter of Rockwood Stove Works, 63 N. L R B. 1297. 34 See note 18, supra, regarding the plant rules. 35 This is true whether or not the strike was caused by unfair labor practices , N L R. B V. Mackay Radio d Telegraph Co, 304 U. S. 333 JOSEPH DYSON & SONS, INC. 463 fill their places. The respondent's refusal to allow any of the 14 strikers to return to work when they applied for reinstatement on February 27, 1945, and the penalty lay-offs given them until March 15, 1945, because of their participation in the strike are therefore in violation of the Act It is also found that the strike was prolonged by this conduct of the employer and hence from then on became an unfair labor practice strike 66 The respondent further contends that it was unabla to reinstate Worthington, Bonner, Gooden, Rivers, Thomas, Carter and Chatman to their former jobs when they reported for work on March 15, 1945, following the expiration of the discriminatory lay-offs, because the respondent had lost the services of two key employees in the hammer department and was forced to reduce its force in the department during the strike for an indefinite period of time. While it is true that the record indicates a reduction in force was necessary, the respondent made no showing that any of the non-striking employees who con- tinued at work during the strike were considered for demotion, lay-offs or discharge in accordance with the respondent's usual method of making such reduction in force, without discrimination against any employee because of his union or concerted activity. In view of the record, the undersigned finds this contention to be lacking in merit On all the above, the undersigned finds that the respondent discriminatorily laid off the 14 strikers named in Appendix A on February 27, 1945, and there- after refused to reinstate Worthington, Bonner, Gooden, Rivers, Thomas, Carter and Chatmmnn to substantially equivalent employment when they again made application for reinstatement on Maich 1.5, 1945, theiebv discriminating in regard to their hire and tenure of employment and thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act" 3 Interference with the election Admittedly, the respondent requested employees Konopka and Dobrich, both members of the CIO, to report for work on March 12, although the respondent had previously discriminatorily laid off both men until March 15, 1945. Thereafter, it refused to permit them to work on Maich 12 when they reported in accordance with the above request, but ordered them to leave the plant, because other em- ployees who were members of the rival Independent threatened to strike if Konopka and Dobrich returned to work on this day. The respondent contends that since it was faced by a threat of strike if Konopka and Dobrich ww ere permitted to work, their exclusion from the plant was not an unfair labor practice. Difficult as an employer's position may be under such circumstances its duty is plain. The statute prohibits discrimination against employees on account of their membership in or activities on behalf of unions. It specifically prohibits discrimination in regard to hire or tenure of employment for the purpose and with the effect of discouraging membership in a union" In view of the fact that a Board election was to be held on the following day, there can be little doubt that the respondent, by acceding to the wrongful demand made by the Independent, led its employees to believe that it preferred the Independent thus encouraging its employees to support that organization at a Board election, thereby interfering with their right to freely select a collective 11 Cf Matter of Rockwood Stove Works, 63 N L R B 1297 Cf Matter of Fairmont Creamery Company, 64 N L R B 824 es Cf N L R B v Isthmian Steam4hip Co , 126 F. (2d) 598 (C C A 2) ; N L R B. v, Hudson Motor Car Co , 128 F. (2d) 588 (C C A 6) 731242-47-vol. 72-31 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representative Furthermore, the respondent's unusual conduct in seeking out CIO strikers who had gone without wages for over 3 weeks for the purpose of handing them back overtime pay awards just prior to an election was calculated to influence them to vote for the Independent. Moreover, the discriminatory lay-offs of the CIO adherents for going out on strike, thus pro- longing the strike and depriving employees of wages they otherwise might earn, clearly indicated to the employees that the respondent favored the Independent. On all the above, the undersigned finds that the respondent interfered with the conduct of the election, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. He further finds that the eviction of Konopka and Dobrich from the plant on March 12, 1945, constitutes discrimination in respect to their hire and tenure of employment. 4. The alleged discriminatory discharge of William Griffin on June 5, 1945 Upon the basis of the foregoing findings above in respect to the allegations in paragraph 10 of the complaint relating to Griffin's discharge on June 5, 1945, the undeisigned concludes and finds that the allegations have not been sustained by the proof IV. THE EFFECT OF THE UNFAIR TABOR 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 laboi disputes burdening and obstructing commerce and the free flow,of commerce V. TILE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take affirma- tive action designed to effectuate the policies of the Act. Since it has also been found that the respondent discriminated in regard to the hire and tenure of employment of certain employees named in Appendix A, it will be recommended that the respondent offer to the employees not heietofore reemployed," immediate and full reinstatement to their former or substantially equivalent positions, or, if such positions are unavailable, to work which they are capable of performing, without prejudice to their seniority, and other rights and privileges. However, since the record shows that the iespondent had unavoidably lost the services of certain key employees in the hammer department and has since been unable to replace them, it is possible that sufficient jobs may not be available for all the employees at the time such offer of reinstatement is made Therefore, those employees presently working for the respondent who were not in the respondent's employ on the date of the strikers' original application for reinstate- ment, and those employees presently working who were in the respondent's employ at the time of such application but had subsequently quit or been discharged for cause, and later reemployed, shall, if necessary, be dismissed by the respondent to provide employment for those employees to be offered, and who shall accept, reinstatement. If, thereupon, there is not sufficient employment immediately available for the employees who did not go on strike and for those to be offered, and who shall accept, reinstatement, then all positions shall be distributed by the "° The record discloses that Konopka was reinstated on March 13, and Dobrich, Hood, Gooden, Geimany, Griffin and London on March 15, 1945 JOSEPH DYSON & SONS, INC. 465 respondent among the employees presently working, excluding those dismissed, and the employees to be offered, and who shall accept, reinstatement, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union and concerted activities, following such a system of seniority or other non-discriminatory procedure as has been hereto- fore applied by the respondent in the conduct of its business. Those employees remaining after such distribution, for whom no employment is immediately available, shall be placed on a preferential list, with priority determined among them in accordance with such system of seniority or other non-discriminatory procedure as has been heretofore applied by the respondent in the conduct of its business, and, thereafter, in accordance with such list, employees shall be offered reinstatement by the respondent to positions as provided above, as such employ- ment becomes available-and before other persons are hired for such work. It will also be recommended that the respondent make the employees whole for losses incurred because of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which each normally would have earned as wages from the date of respondent's discrimina- tion against them, respectively. to the date of his reinstatement, less his net earnings 4° during such period However, in making the employees whole, it is not recommended that they be awarded back pay for the periods in which they normally would not have worked in the respondent's plant because of any reduc- tion in force occasioned by reason of business exigencies beyond the respondent's control; and it is further reconnuanded that no deductions for money earned elsewhere durmg such periods shall be made. Since it has further been found that the conduct of the respondent interfered with the right of its employees to freely select a collective bargaining representa- tive at the Board conducted election held on March 13. 1945, it will be recom- mended that the election be invalidated and set aside Upon the basis of the above findings of fact and upon the entire record in the case the undersigned makes the following Corcctusioxs OF LAW 1. International Union United Automobile. Aircralt and Agricultural Im- plement Workers of America, an affiliate of the Congress of Industrial Organiza- tions, and Joseph Dyson Victory Club. an unaffiliated organization, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By discriminating in regaid to the hire and tenure of employment and terms and conditions of employment of the striking employees named in Appendix A of this report, thereby discouraging membership in the CIO and thereby dis- couraging concerted actin itie,s for mutual aid and protection, the respondent has engaged in and is engaging in unfair labor pi actices within the meaning of Section 8 (3) of the Act 3 By inteifering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and by interfering with the conduct of a Board election the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 40 By net earnings" is meant eai pings less expenses, such as for transportation, 1ooni. and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawtul 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 earn- ings See Republic Rtee7 Corporation v N L R B , 311 U. S 7. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, its officers, agents, successors, and as- signs shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Air- craft, and Agricultural Implement Workers of America, affiliated with the Con- gress of Industrial Organizations, or any other labor organizations of its employees by in any manner discriminating in regard to the hire and tenure or any term or condition of employment of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist Interna- tional Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, 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 bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer C. Worthington, R. Bonner, J. Carter, J Gooden, W. Rivers, F. Thomas and William Cliatman immediate and full reinstatement to their former or substantially equivalent positions or, if such positions are unavail- able, to work which they are capable of performing without prejudice to, their seniority and other rights and privileges, dismissing, if necessary, other em- ployees in the manner set forth in the above section of this report entitled "The remedy," and place those for whom employment cannot immediately be available upon a prefeiential list and offer them employment as it becomes available in the manner set forth above in the remedy ; (b) Make whole C. Worthington, R Bonier. J Carter, J Gooden, W. Rivers, F Thomas and William Chatman for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each .of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of the respondent's offer of reinstatement or placement upon a preferential list, less his net earnings 41 dui ing said period, in the manner set forth above in the section entitled "The remedy" ; (c) Make whole B. Konopka, J. Dobrich, Fletcher Griffin, Lee Green, J. Hood, F. Germany, and P. London for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of then of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him by reason of his lay-off on February 27, 1945, to the date of his reinstatement less his net earnings" during said period ; (d) Post at its plant at Cleveland, Ohio, copies of the notice attached hereto, marked "Appendix A " Copies of the said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's 41 See footnote 40, supra. 41 See preceding note. JOSEPH DYSON & SONS, INC. 467 representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) File with the Regional Director for the Eighth Region on or before ten (10) days from the receipt of this Intermediate Report a report in writing setting forth in detail the manner and forms in which the respondent has complied with the foregoing recommendations. 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. It is further recommended that the Board conducted election held on March 13, 1945, be invalidated and set aside. 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 a copy with the Regional Director As further provided in said Section 33, 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. HENRY J. KENT, Trial _ Exarnrner. Dated January 17, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile Aircraft and Agri- cultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Worthington, R Bonner, J. Carter, J Gooden, W. Rivers, F. Thomas and William Chatman. We will make whole B Kouopka, J Dobrich, Fletcher Griffin, Lee Green, J Hood, F. Germany, and P. London for any loss of pay suffered as a result of the discrimination. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. JQSEPH DYso` & SoNs, INa Employer. By --------------------------------- (Representative) (Title) Dated -------------------- NoTE-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. SUPPLEMENTAL INTERMEDIATE REPORT Thomas E. Shroyer, Esq., for the Board. James IV. Havighurst, Esq., of Cleveland, Ohio, for the respondent. llr. Stanley J. Kwtat, of Cleveland, Ohio, for the CIO STATEMENT OF THE CASE A hearing was held in the above entitled cause at Cleveland, Ohio, from August 28 to September 1, 1945, before the undersigned Henry J. Kent, the Trial Examiner duly designated by the Chief Trial Examiner . Thereafter on January 17, 1946, the undersigned issued his Intermediate Report, copies of which were duly served upon the respondent, the CIO, and the Joseph Dyson Victory Club, an unaffiliated labor organization , all of whom appeared and participated in the hearing. In his Intermediate Report, the undersigned found that the respondent had engaged in, and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 ( 1) and (3) of the Act, and recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Exceptions to the Intermediate Report, and a brief in support of the exceptions were thereafter filed by the respondent, and exceptions were also filed by the CIO. Upon request of the respondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., on July 16, 1946, for the purpose of oral argument The respondent was represented by counsel and participated in the bearing Thereafter , on July 23, 1946, the Board issued and served upon the parties the following order reopening the record and remanding the case for further hearing: Oral argument having been held before the Board in the above entitled proceeding on July 16, 1946, and thereafter, the Board having duly con- sidered the matter, and deeming it necessary to receive further evidence in the record, IT IS HEREBY ORDERED that the record in the above -entitled proceeding be reopened, and that a further hearing be held for the purpose of ascertaining whether : JOSEPH DYSON & SONS, INC. 469 1 During the strikes of January and February 1945, there was in effect a valid and operative conti act, containing a no-strike clause, between the Joseph Dyson and Sons, Inc., and the Joseph Dyson Victory Club, and 2 Whether such a contract accorded to the Joseph Dyson Victory Club exclusive recognition as to the collective bargaining representative of the employees of Joseph Dyson and Sons, Inc. ; i IT IS FURTHER ORDERED that this proceeding be referred to the Regional Director for the Eighth Region for the purpose of conducting the further hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof ; and IT is FURTHER oIiDEiu:D, pursuant to Aiticle II, Section 37 (a) of National Labor Relations Board Rules and Regulations-Series 3, as amended, that the Trial Examiner in the said hearing prepare a Supplemental Intermediate Report on the evidence adduced at the aforesaid heating in the above- entitled case. Pursuant to the above order i eopening the record, and upon due notice to all of the parties participating at the former hearing, a reopened hearing was held in Cleveland, Ohio, on August 29, 1946, before the undersigned, Henry J. Kent, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, the respondent and the CIO were represented at and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence on the issues presented by the Board's order. At the close of the hearing counsel for the respondent and the repiesentative lot the CIO presented oral argument, and all patties stated that they did not desire to tile briefs Upon the evidence adduced, the undersigned makes the following: FINDINGS OF FACT A. The May 1, 1942, contract of the Joseph Dyson Victory Club .1. Summary of the issues The issues raised by the respondent at the oral argument before the Board, as outlined in the Board's order reopening the hearing, are, in sum, (1) whether there was in effect a valid and operative contract containing a no-strike clause between the respondent and the Joseph Dyson Victory Club during the January and February 1945, strikes at the respondent's plant, and (2) whether the con- tract accorded to the Joseph Dyson Victory Club exclusive recognition as the col- lective bargaining representative of the respondent's employees. 2. The contract negotiations ; the construction of its terms by the parties The contract was offered in evidence in Case No 8-C-1788 during the present hearing and was admitted in evidence without objection. It reads as follows: This Agreement made and concluded at Cleveland , Ohio, this 1st day of May, 1942 by and between Jos. Dyson & Sons, Inc, hereinafter referred to as 'The contract was not pleaded as a defense in the respondent's answer filed in Case No. 8-C-1788 to the allegations of the complaint, nor was the no-stiike clause in the contract urged as a defense at the hearing before, the undersigned. The contract, how- ever, was offered and received in evidence at the original hearing in Case No. 8-R-1741, but the Board deemed it unnecessary to pass upon its legal effect in that proceeding. See Board's Decision and Direction of Election in Matter of Joseph Dyson ef Sons, Inc., 60 N, b. R. B. 867. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employer, and those of its employees who are represented by the Jo. Dyson Victory Club, hereinafter referred to as the employees. Witnesseth, That, Whereas the employees are associated together in the Association above referred to for purposes of collective bargaining, and Whereas the employer has recognized the said Association as the repre- sentative of the said employees as their collective bargaining agent. Now, therefore, in consideration of the mutual promises of the parties herein contained, it is understood and agreed by and between them, that ARTICLE I There shall be no strike or lockout during the term of this Agreement. Should differences arise between the Company and the Employees as to the meaning or application of this Agreement, or on any other matter not covered by this agreement there shall be held immediately a meeting between the Committee of the Jo Dyson Victory Club and the representatives of the Company. Any employee has fall right and pi emlege to have the Committee take up any matter wath the Company in hes behalf. [Italics supplied.] ARTICLE II (a) The normal work week shall consist of five (5) days of eight (8) hours, totaling 40 hours per week (b) Work performed in excess of the regular daily and weekly hours set forth above, shall be paid for at the rate of time and one half (c) Night shift workers shall receive a bonus of 5 cents per hour, or 5% of their hourly rate, whichever is the highest ARTICLE III (a) Every employee on the payroll on August 1, 1942 who shall have had continuous employment with the employer for one (1) year prior to that date shall be entitled to one (1) week vacation with pay or he may elect not to take the vacation, in which case he shall receive the pay in addition to his earnings during the period which he would have taken as vacation. The amount of vacation pay shall be determined for each employee entitled to a week's vacation by dividing his total earnings for the year previous to August 1st 1942 by fifty-two (52). (b) Every employee on the payroll on August 1, 1942 who shall have had continuous employment with the employer for six (6) months prior to that date shall be entitled to two (2) day's vacation with pay which amount is determined by dividing his total earnings for the six (6) months prior to August 1st by fifty-two (52). This clause will lapse after 1942 and after this year vacations will be governed entirely by the previous paragraph. (c) Payment for vacations shall be made on the basis of hourly rates in effect on August 1st. (d) Payment for vacations shall be made on August 15th. ARTICLE IV This agreement shall remain in full force and effect for one year from the first day of May 1942, and thereafter for like periods of one year unless thirty (30) days prior to the expiration of this Agreement or any renewal JOSEPH DYSON & SONS, INC. 471 thereof, written notice of a contrary intention is served by either party upon the other. In respect- to the issues raised which are, in" effect, interdependent, Robert H. McGrath credibly testified : he was employed by the respondent as its general manager on March 1, 1942; that previous to his employment, the respondent had been dealing with another labor organization, not named in the record, as the exclusive representative of the employees in the plant and the employees of an affiliate of the respondent engaged in operating a machine shop at another plant in Cleveland, Ohio; that about the time he became general manager the re- spondent's employees organized the Joseph Dyson Victory Club ; that a com- mittee representing this organization came to his office and handed him a member- ship list of the Victory Club containing a large number of names and requested recognition as exclusive representative for the respondent's employees; that he thereupon agreed to bargain with the organization as such representative .2 McGrath further credibly testified that he met with the committee on numerous occasions during the next several weeks ; that during negotiations certain changes in wage scales were effected; that neither the respondent nor the Victory Club availed themselves of legal counsel in connection with the preliminary nego- tiations nor with the drafting of the contract later signed on May 1, 1942; that thereafter the respondent continued to meet with the committee about once a month to discuss general grievances and other matters of general concern to the employee group ; that in 1943, the respondent and the Victory Club presented a joint application to the Regional Office of the War Labor Board at Cleveland, Ohio, for approval of general wage increases, which resulted in the granting of wage increases to substantially all of the hourly paid employees ; 3 that about the middle of December 1944 the respondent notified the Victory Club it had discharged Employee William Chatman, an adherent of the CIO, because of ex- cessive absenteeism, but thereafter reinstated Chatman, before his work was actually terminated, after the Victory Club interceded on Chatman's behalf; that during a work stoppage'at the plant which took place later in December 1944, some of the employees stated that they wished the CIO to represent them, but the respondent on this occasion refused to deal with the 010 and infoi med them that it was bound by contract to deal with the Victory Club as their exclusive representative; and that neither the respondent nor the Victory Club has ever given a notice to the other, as provided in the May 1, 1942, contract, that the said contract was terminated. The record shows that the Victory Club had no formal slate of of&ceis, other than the three committeemen, until April 1 or May 1. 1945, when a president and treasurer were elected, and that prior to the election of a treasurer no dues had been collected It held no regular meetings for its members, but from time to time meetings of the membership had been held outside of the plant to discuss matters of general interest. Employee Philip Delain, it committeeman in Decem- her 1944, and who was elected pi esident in April or May 1945, credibly testified that since it was a small shop, the committeemen were able to keep the employees informed on all matters affecting their interests and that due to the war work activities at the plant, the employees were working from 101/2 to 14 hours a day 2 The complaint does not allege that the Victory Club was formed or dominated by the respondent, nor does the evidence as a whole indicate that it was company dominated. Insofar as the record shows, no competing labor organization claimed to represent any of the employees following its formation until the CIO began its campaign to organize the plant in the fall of 1944 3 A copy of this application was offered in evidence by the respondent and admitted without objection. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from early 1942 through most of 1945, and were unwilling to spend additional time attending membership meetings' B. Conchuteng /imidouls The CIO contends that the principal issue is whether the Victory Club was the exclusive bargaining agent for all employees in an appropriate bargaining unit and urges that since the first paragraph in the contract states that it was entered into "by and between Joseph Dyson & Sons, Inc, hereinafter referred to as the employer, and those of its employees who are represented by the Jos. Dyson Victory Club, hereinafter referred to is the employees," it was merely a contract covering the members of that organization The undersigned does not agree. It is true that this provision is somewhat ambiguous, but a consideration of the contract as a whole plainly uidRates that it was intended to cover all hourly paid employees and dealings between the respondent and the organization ov ei several years plainly inlicate that they so construed it and this construction was not challenged until the CIO began to organize the plant neatly 3 years later Neither party consulted legal counsel in connection with the drafting the instrument which would explain the apparent ambiguity in its various terms The Board has stated, "recitals of a [labor] contract should be read in the light of the entire contract and given a construction, if reasonable, which would not render the agreement invalid' Although the organization and its administration has been somewhat loose and informal, it is plain that it was formed toi the purpose of dealing and did deal, with the employer concerning grievances, wage rates, hours and other working conditions for all hourly paid employees Consequently it is clear that it is a labor organization within the meaning of the Act 6 Upon the basis of the foregoing facts the undersigned concludes and finds : (1) that a valid and operative contract between the respondent and the Joseph Dyson Victory Club, containing a no-strike clause, was in effect during January and February 1945; and (2) that the said contract accorded to the Joseph Dyson Victory Club exclusive recognition as collective bargaining representative of the respondent's employees in an appropriate bargaining unit As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 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 Supplemental 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 ; and any party or counsel for the Board may,-within the same period, file an original and four copies of a brief in support of the Supplemental Inter- mediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a 4 According to the Tally of Ballots issued by the Regional Director on March 13, 1945, in Case No 8-R-1741, there were 48 employees in the unit, which is a production and maintenance unit The record also shows that the meeting at which a president and treasurer were elected was held in the plant after working hours. 5 See Matter of Ansley Radio Corporation, 18 N. L R B. 1038, 1058; Matter of M ct J. Tracy, Inc, 12 N. L. R B. 916, 928. 6See Matter of The Nubone Company, Inc, 62 N L R. B. 322; Matter of Midland National Bank of Minneapolis, 68 N L. R B. 580. JOSEPH DYSON & SONS, INC. 473 copy thereof upon each of the other parties and shall file a copy with the Regional Director . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further pro- vided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10 ) days from the date of service of the order transferring the case to the Board HENRY J. KENT, Trial Examiner. Dated October 23, 1946.