United States Stamping Co.

In the Matter Of UNITED STATES STAMPING COMPANY and ENAMEL WORKERS UNION, No. 18630 Case No. C-203.-Decided February 10, 1938 Stamping and Enameling Industry-Interference, Restraiat, or Coercion: use of labor spies ; refusal to bargain collectively-Discrimination : discharges ; allegations of complaint dismissed-Collective Bargainting : refusal to bargain collectively with representatives of labor organization subsequent to certifi- cation by the Board ; presumption of continuation of majority in certified' organization in absence of proof to contrary-Strike: caused by employer's- unlawful refusal to bargain collectively; effect of injunction awarded by State court-Reinstatement Ordered: strikers upon application for reinstatement; commission of unlawful acts during strike as affecting reinstatement-Back- Pay: awarded strikers, from date of denial of application for reinstatement. Mr. Robert H. Kleeb, for the Board. Mr. Martin Brown, of Moundsville, W. Va., for the respondent. Mary Lemon Schleifer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On December 9, 1936, W. H. Wilson, an organizer for the Ameri- can Federation of Labor, filed a charge with the Acting Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) alleging that United States Stamping Company, Moundsville, West Vir- ginia, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 23, 1937, W. E. Kirk, likewise an organizer for the American Federa- tion of Labor, filed a charge with the same Acting Regional Director, 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 Act. On April 28, 1937, the Acting Regional Director issued a complaint and notice of hearing which were duly served upon the respondent and 172 DECISIONS AND ORDERS 173 upon Enamel Workers Union No. 18630,1 herein called the Union. The complaint alleged, in substance, that after February 11, 1936, the date on which the Board certified the Union as the exclusive repre- sentative of the production and maintenance employees of the respond- ent,2 and on or about September 28, October 6 and October 9, 1936, and on various dates thereafter, the respondent refused to meet and/or negotiate with the representatives selected by the Union and that the respondent did not negotiate with such representatives in good faith, such acts constituting unfair labor practices within the meaning of Section 8 (5) of the Act; that on February 6, 1937, during a strike at the respondent's plant, which had been called by the Union on October 10, 1936, and which had not yet terminated at the time the complaint was issued, the respondent had discharged and refused to reinstate William Bane and Sylvester Riggs 3 for the reason that they were too closely connected with the Union and because each of them had a son employed by the respondent who was actively engaged in the strike and appearing regularly on the picket line, such discharges and refusals to reinstate constituting unfair labor practices within the meaning of•Section 8 (3) of the Act; and that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, by virtue of the above-alleged practices and also by em- ploying certain agencies and individuals subsequent to October 10, 1936, for the purpose of spying upon the activities and meetings of its employees and of the Union and of removing the president of the Union from the community. On May 5, 1937, the respondent filed an answer to the complaint, denying that it had engaged in unfair labor practices affecting com- merce as alleged in the complaint. At the same time the respondent filed a motion to dismiss on the grounds that the charges filed were insufficient under the Act and the rules of the Board, that the Act does not require that an employer enter into a contract with his employees, that the facts set forth in the charges and complaint showed that the respondent had not engaged in unfair labor practices, and for other reasons. Pursuant to the notice of hearing, a hearing was held in Mounds- ville, West Virginia, from May 6 to May 21, 1937, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine i The charge, complaint and other pleadings in the case designate the Union as Porcelain Enamel workers Union No. 18630. Testimony at the hearing shows that at some time in 1936, the name of the organization was officially changed by the American Federation of Labor, pursuant to request by the Union, to Enamel Workers' Union No. 18630. 21N.L R. B 123. 8 Incorrectly designated Moody Riggs in the complaint. 174 NATIONAL LABOR RELATIONS BOARD and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The respondent renewed its motion to dismiss the complaint on the grounds set forth above. The motion was denied by the Trial Ex- aminer. The ruling is hereby affirmed. During the course of the, hearing, the Mutual Labor Advancement Association of Moundsville, West Virginia, filed a petition for intervention and for other affirma- tive relief. The Trial Examiner reserved decision on the request of the petitioner to be allowed-to intervene and denied the petition for all other purposes. In his Intermediate Report the Trial Examiner denied the petition for intervention. This ruling is hereby affirmed for the reasons hereinafter set forth. During the course of the hearing, counsel for the Board moved to amend the complaint to allege that the strike which occurred in the respondent's plant on October 10, 1936, was caused by the respondent's refusal to bargain collectively and to allege that the respondent had employed the services of'certain agencies for the purpose of spying upon the union activities of its employees in the period from Novem- ber 1935 to September 6, 1936, instead of on the dates alleged in the original complaint. These amendments were allowed, objections of the respondent thereto being overruled. The most important of these objections will be discussed hereinafter. The rulings of the Trial Examiner on the motion and the objections thereto are hereby affirmed. A certified copy of a suit in equity in the Circuit Court of Marshall County, West Virginia, was offered in evidence as Respondent's Ex- hibit No. 3. The Trial Examiner admitted the exhibit tentatively. Respondent's Exhibit No. 3, is hereby admitted and made part of the record in the case. Respondent's Exhibits Nos. 66 to 79 inclusive, and 81, being certified copies of true bills returned by the Grand Jury of Marshall County, West Virginia, to the Circuit Court of Marshall County, West Virginia, were refused admission by the Trial Ex- aminer on objection of counsel for the Board. The rulings of the Trial Examiner are hereby overruled and the said exhibits are admitted into evidence. Numerous other motions and objections to the admission of certain testimony were made by counsel for the Board and counsel for the respondent. Most of these rulings are assigned as error by counsel for the respondent. The technical objections of the respondent are in some instances well-founded. However, after careful review of the entire record, the Board is of the opinion that the respondent was not prejudiced by these rulings. With the exceptions stated above, the rulings of the Trial Examiner on motions and objections are hereby affirmed. DECISIONS AND ORDERS 175 On June 1, 1937, the respondent filed a brief in support of its mo- tion to dismiss the charges and complaint and amended complaint. On July 17, 1937, pursuant to Article II, Section 32, of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Trial Examiner issued an Intermediate Report which was duly served upon the respondent and the Union. The Trial Examiner found in the Intermediate Report that the respondent had engaged in unfair labor practices affecting commerce as alleged in the complaint and recommended that the respondent be required to cease aid desist from such unfair labor practices , to reinstate William Bane and Sylvester Riggs with back pay, to reinstate all strikers to their former positions, discharging if necessary those who have been hired to replace them, and upon request to bargain collectively with the Union. On August 6, 1937, the respondent filed exceptions to the findings of the Trial Examiner embodied in the Intermediate Report and fur- ther exceptions to the record, and the complaint, and amendments permitted to the complaint. On August 7, 1937, the Mutual Labor Advancement Association filed exceptions to the record and to the ruling of the Intermediate Report which denied its petition for intervention. The petition asked for recognition of the Mutual Labor Advancement Association by the Board, for an election, and that the petitioner be allowed to intervene for all purposes relevant to the hearing. The petition for recognition is meaningless; the request for an election is not in con- formity with the Board's requirements. The petition was rightly denied for these purposes. In so far as the request for intervention is concerned, the petitioner's right depended upon the relevancy of the facts alleged to the issues involved. The petition alleged that the petitioner had 551 members among the production and mainte- nance employees of the respondent at the time the petition was filed, but failed in any way to allege that the petitioner claimed as mem- bers a majority of the respondent's production and maintenance em- ployees during the period within which the complaint alleges the respondent failed to bargain collectively with the Union as the exclusive representative of its employees . Without such allegation, the matters set forth in the petition were clearly irrelevant to the issues involved. It may well be, as alleged in the petition, that a majority of the production and maintenance employees now working in the respondent's plant are members of the Mutual Labor Advance- ment Association . However, if, as we find below, the respondent refused to bargain collectively with the Union at a time when it rep- resented a majority of the respondent's employees, we cannot recog- nize a designation of other representatives since that time as indicat- 176 NATIONAL LABOR RELATIONS BOARD ing a free expression of choice by the employees. The exceptions of the petitioner are hereby denied. Upon the entire record in the case, the Board makes the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT United States Stamping Company, a West Virginia corporation, is engaged in the manufacture of enamelware, including hospital sup- plies, cooking utensils and other articles for household use, at a plant located at Moundsville, West Virginia. In 1936, the volume of respondent's business amounted to $1,053,780.75; in the first four months of 1937, it amounted to $455,758.58. A great variety of raw materials including borax, flint, feldspar, oxides, sand, silica, and steel are used to produce the finished products manufactured by the respondent. All raw materials used by the respondent, except steel, originate outside the State of West Virginia. Seventy-five per cent of the steel used by the respondent is purchased from Wheeling Steel Company, Wheeling, West Virginia, the balance from American Rolling Mill Company, Middletown, Ohio. In ad- dition to raw materials, many manufactured products, including car- tons, pads, covers, knobs, and wooden handles, are used in the finish- ing and shipping of the respondent's products. Of the total amount of raw materials and manufactured products used by the respond- ent, 95 per cent originate outside the State of West Virginia. Ninety to 98 per cent of the respondent's finished products are shipped to° purchasers outside the State of West Virginia. These customers, numbering about 10,000 to 12,000, are located in practi- cally all States of the United States, and in Puerto Rico, Canada, and Cuba. The respondent employs 23 salesmen who solicit orders throughout the continental United States and in Puerto Rico. Orders received by these salesmen are sent to Moundsville, West Virginia, where they are subject to acceptance. Orders accepted are shipped directly from Moundsville to the purchasers, by means of railroad or truck. The respondent maintains a,sample room in New York City and in Chicago, Illinois. II. THE UNION Porcelain Enamel Workers Union, No. 18630, a labor organization, is a federal union chartered directly by the American Federation of Labor. It was organized in 1933, its membership being confined to production and maintenance employees of the respondent. As pre- viously stated, the name of the organization was officially changed in 1936 by dropping the word "Porcelain" in the title. DECISIONS AND ORDERS III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices 177 In June 1935 the Union requested the respondent to bargain col- lectively concerning an agreement relating to wages, hours, and con- ditions of employment. The respondent refused to deal with the union committee, stating that the Union did not represent a majority of the respondent's employees. In August 1935 the Union secured written authorizations to act as collective bargaining agent from 282 of the 411 persons then employed in-the production and main- tenance departments of the respondent. These cards were submitted by the Union to an agent of the Board, who after checking the signa- tures on the cards with canceled checks of employees furnished by the respondent, notified the respondent that a majority of the pro- duction and maintenance employees had selected the Union to repre- sent them. The management of the respondent, nevertheless, refused to meet with a committee of the Union, still contending that it did not represent a majority of the employees, F. S. Earnshaw, secre- tary-treasurer and general manager of the respondent, stating fur- ther that under no circumstances would he deal with the representa- tives of a union, especially one affiliated with the American Federation of Labor. On November 6, 1935, after failure to secure recognition as the collective bargaining representative, the Union called a strike among the employees of the respondent. The strike was terminated on November 29, 1935, by the Union's acceptance of proposals made by the respondent. These proposals included an offer to resume opera- tions at the plant under the same rates of pay as existed prior to the strike and without discrimination against any of its employees, and the agreement of the respondent to abide by the decision of the Board designating the collective bargaining agency pursuant to a petition which had been filed on November 4, 1935, on behalf of the Union by H. G. Flaugh, an organizer of the American Federation of Labor. On January .13, 1936, after hearings on the petition the Board directed that an election be held within a period of one week from the date of the Direction, "among the employees engaged in the production and maintenance department [of the Company] on November 5, 1935, and those employed between that date and the date of this direction of election in the production and maintenance department, excepting foremen, assistant foremen, supervisors and clerical employees, and those who quit or have been discharged for cause during such period, to determine whether or not they desire to be represented by the Porcelain Enamel Workers' Union No., 18630." 4 41 N. L. R. B. 123. 178 c NATIONAL LABOR RELATIONS BOARD On January 17, 1936, the following printed notice was posted ort the respondent's bulletin board. We; the undersigned called on Mr. Earnshaw to obtain his view pertaining to the election Monday for the purpose of electing a, collective bargaining committee. It is rumored that this election is for the purpose of recognition, of the union. Our information is that the purpose of this election, is to not recognize a union but the purpose is to select a Commit- tee to represent all the employees. It is understood that if the union elects the collective bargain- ing committee, this committee will demand recognition of the- union. We are informed that the company positively will not, recognize any union. It is further rumored that the committee will submit an agree- ment to be signed, and we are informed that the company will not. sign an agreement of any nature with any union. When the company refuses to recognize the union and will not sign an agreement, it is rumored the union will strike and we will all be out of work again. We suggest that all employees regardless of the nature of their work who were on the payroll November 5th and those who were hired after that date up to January 13th will be permitted to vote. Signed HARRY RICHMOND, MARY J. POWELL, M. R. HOLMES, Sur DENIS, R. C. PETERS, W. A. SCHOENIAN, J. B. MERRITT, ALBERT HOWARD, ED WEST. Earnshaw denied that this notice was prepared by him or at his suggestion. Earl Howard, a clerical employee of the respondent, testified that, without direction of any supervisory employee of the respondent, he selected the nine persons who signed the petition from among the respondent's employees because he considered them "fair- minded" employees, and with the consent of F. W. Oberman, who was then acting in the capacity of production or plant manager, se- cured permission for these employees to attend a meeting in the sample room of the plant; that he requested Earnshaw to address the meeting and that after Earnshaw left he drafted the bulletin; and that the cost of printing the bulletin was paid by the Mutual Labor Advancement Association, from a fund secured by collections. What Earnshaw stated to the so-called committee is in doubt because of the conflicting testimony on this point of the various witnesses. In any event, this bulletin containing palpably untrue statements designed to influence voters in the election was posted on the re- spondent's bulletin board, and must have been posted with the consent or acquiescence of the management. DECISIONS AND ORDERS 179 On January 20, 1936, at the election held by the Regional Director for the Sixth Region pursuant to the Direction, a clear majority of the eligible employees chose the Union to represent them. On February 5, 1936, the respondent filed exceptions to the Intermediate Report of the Regional Director concerning the conduct and results of the election. These exceptions, in substance, were that (1) the Act is unconstitutional; (2) the election was invalid in that certain groups of employees were not permitted to vote; (3) the ballot used in the election was "a fraud on its face and was not held (sic) in accordance with the election laws of the State of West Virginia"; (4) "the said election has all the earmarks of an election conducted under the management of Adolph Hitler rather than under the Amer- ican system"; and (5) "the said election gave no opportunity to vote for anybody or any person but said Porcelain Enamel Workers' Union-and is an unconstitutional attempt to have the United States Stamping Company recognize the `American Federation of Labor', which it will not do." On February 10, 1936, before the Board had acted upon the Inter- mediate Report and exceptions thereto, a committee of the Union called on the respondent to discuss a proposed agreement which had been submitted to the respondent by the Union on February 3, 1936. Despite the agreement of the respondent to abide by the decision of the Board, on which the Union had terminated the strike of November 6, 1935, Martin Brown, attorney for the respondent, stated at various times during the course of this meeting : I understand you gentlemen have some agreement, I don't know what that is-but whatever agreement you have, I don't intend to discuss that-but that was pending the final agreement of the National Labor Relations Act. Now, you have had an election. There has been an objection filed to that election. The Pittsburgh Office made a report as to their findings of that and asked if there was objection, and those objections have been filed and there has been no reply; so that settles that-there isn't anything to do. The statute isn't settled or determined and you can't expect or ask anyone to comply with a statute when the statute is in dispute-is in question. The law isn't determined yet. If' the National' Labor Rela- tions Act is determined to be the law of 'this country,, it will not require any act on the part of the United States Stamping Officials to agree to it. No, it [the Act] is not a law until some Court passes' on it. 180 NATIONAL LABOR RELATIONS BOARD Don't you think when you hold an election that all those who are interested in the organization ought to have an opportunity to submit their views-don't you think that there were other parties ... We are not going to be pushed into anything. We understand our rights-but when you talk about having an elec- tion and a fair election, the way I see the election it was a Hitler- ized affair-planned just like Hitler.... On the following day, February 11, 1936, the Board issued a Deci- sion and Certification of Representatives.5 The Certification of Representatives, after stating that "no substantial and material issue with respect to the conduct of the ballot" had been raised by the objections filed by the Company, certified the Union as the exclusive representative of the production and maintenance employees of the respondent for the purposes of collective bargaining. B. The refusal to bargain collectively Subsequent to the Board's certification of the Union on February 11, 1936, and up to October 10, 1936, at which time another strike was called at the respondent's plant by the Union, six meetings were held between the representatives of the respondent and a committee of the Union for the purpose of negotiating a collective bargaining agreement. Notes of these meetings made by a stenographer selected by the respondent, and introduced in evidence at the hearing by the respondent, clearly show that the respondent did not bargain collec- tively with the Union at these meetings. The meetings were held on February 24, March 17, June 1, September 28, October 6 and Octo- ber 9, 1936. The respondent was generally represented by either Earnshaw or V. W. Jared, production manager, and several foremen. The sales manager and a stockholder of the respondent were also present at some of the meetings. The union committee was accom- panied at most of the meetings by an organizer from the American Federation of Labor, and on one occasion, at the meeting of February 24, by two organizers. At the meeting of February 24, 1936, David Williams, an or- ganizer, requested the respondent to negotiate an agreement. Earn- shaw replied that the respondent and its counsel were of the opinion that the Act did not require the respondent to sign an agreement, either with the Union or with its employees. Williams stated that the Act did require the signing of an agreement and requested that Earnshaw state definitely whether or not the respondent would enter into a signed agreement. The meeting adjourned upon Earnshaw's promise that 'he would notify' Williams within' 10 days' of the respondent's policy on signing, an agreement. 51N.L R. B. 123. DECISIONS AND ORDERS 181 Shortly after this meeting, the respondent wrote to Williams and requested that Williams submit in writing the question he desired the respondent to answer. At the meetings of March 17 and June 1, the representatives of the respondent stated that no policy could be adopt- ed by the respondent until a reply from Williams had been received. A new proposed agreement was submitted by the Union to the respondent at the meeting of September 28. Jared agreed to meet with the committee on October 6, to discuss the contents of the new proposals. Only the introductory paragraph of the proposed agree- ment was discussed at the meeting of October 6. This paragraph read as follows : THIS AGREEMENT, made and entered into this day of , 1936, by and between the UNITED STATES STAMPING COMPANY, of Moundsville, West Virginia, hereinafter referred to as the Employer, and the ENAMEL WORKERS UNION LOCAL No. 18630, an affiliate of the American Federation of Labor, herein- after referred to as the Union; WITNESSETH: Jared stated that this paragraph was not acceptable and suggested that it be worded, This Agreement, made and entered into, by and between the United States Stamping Company, Moundsville, W. Va., and five or six names-whatever the case may be-or their successors, who may be elected from employees of the United States Stamp- ing Company by ballot to negotiate and bargain collectively with respect to wages, working conditions, affecting those employees who have authorized the above employees to represent them. Although this proposal was not acceptable to the Union, the Union requested Jared to consider other provisions of the agreement. Jared then requested that the meeting adjourn for three days., The Union agreed upon Jared's promise that the next meeting "will either be terminated quickly, that we can't sign or we will make a very direct attempt ..." Jared opened the meeting of October 9, by announcing that he had prepared a short statement, which he read, as follows : We have concluded that since the law does not require the signing of an agreement with this committee, we will not do so. Jared refused to explain this statement despite the request of W. H. Wilson, an organizer who had accompanied the union committee. Wilson then stated : I understand that statement to mean that the Company will not negotiate any of the terms of the proposals that has been submitted. ' 182 NATIONAL LABOR RELATIONS BOARD Mr. JARED. I don't believe that's included in this statement, Mr. Wilson. Mr. WILSON. Well, then let's go ahead and negotiate the agree- ment, then we will talk about the signing of the contract after the terms are agreed upon. Mr. JAZZED. I am sorry. During these negotiations the respondent did not deny that a major- ity of its employees desired the Union to represent them. In the absence of proof to the contrary, there is the presumption that the majority secured by the Union in the election of January 20, 1936, continued. The respondent relied at the hearing rather upon the fol- lowing defenses: (1) That the Union's demand at all times was that the respondent sign a contract, which the respondent is not required to do by the Act; (2) that the Union's demand was for a closed-shop contract which the respondent is not required to accede to; (3) that the signing of a contract with the Union would be a violation of the Act in that it would grant a preference to the Union over another labor organization within the plant; and (4) that it did bargain collectively with the Union. The first defense of the respondent is shown to be invalid by the above recital of facts concerning the meetings between the respondent and the union committee. In the meeting of October 9, at least, the respondent in addition to refusing to sign an agreement, also refused to negotiate concerning an agreement. We do not consider it necessary in this case to determine whether or not an employer who refuses to enter into a signed agreement has bargained collectively. It is suffi- cient to state that, since the respondent's own interpretation of the refusal to sign an agreement on October 9 included a refusal to nego- tiate, it is apparent that throughout the negotiations the respondent had no intention of negotiating any agreement with the Union. The proposed contract of September 28, 1936, contained a closed- shop provision. As respondent and its counsel well know, the incor- poration of such a provision in a proposed contract does not indicate that the Union will not accept a contract without such a provision. No closed-shop provision was incorporated in the proposed agreement of February 3, 1936, and there was no discussion of this provision of the agreement in any of the so-called collective bargaining meet- ings prior to October 6, 1936. At that time Jared stated he would never sign an agreement requiring a closed shop. The minutes of this meeting do not indicate that the union committee took the posi- tion that an agreement without this provision would not be acceptable. The third defense of the respondent requires no discussion. The Act requires negotiations by an employer, with a view to reaching DECISIONS AND ORDERS 183 an agreement, with the organization representing the majority of his employees to the exclusion of all other possible representatives. By express provision, such a majority representative is the exclusive representative of all the employees. Under the fourth ground of defense the respondent introduced in evidence records of meetings with shop committees of the Union, representing various departments. We concede that, as a result of the meetings, some adjustments in wages and working . conditions were made by the respondent. These agreements, however, were not reduced to writing, nor made for any definite period of time. When the respondent acceded to the requests, it issued a bulletin which it placed on its bulletin board stating that the enumerated changes would be put into effect. Such a procedure by the respondent is clearly consistent with the respondent's policy of dealing with a committee composed of its employees, but refusing to deal with a labor organization, especially with one affiliated with the American Federation of Labor, whether the chosen representative of its em- ployees or not. A procedure such as this does not fulfill the require- ments of collective bargaining imposed by the Act. We find that the respondent in refusing to negotiate concerning an agreement with the Union, did, after February 11, 1936, and on September 28, October 6, and October 9, 1936,' refuse to bargain col- lectively with the Union as the exclusive representative of its pro- duction and maintenance employees. The respondent by refusing to bargain collectively with the Union has interfered with, restrained, and coerced its employees in the exer- cise of their right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining and other mutual aid and protection. C. The strike of October 12, 1936 After the collective bargaining committee reported to the Union membership the results of the meeting with the respondent on Octo- ber 9, 1936, a strike vote was taken and carried. On October 10, 1936, the Union addressed a letter to the respondent stating in part: For the past three years a committee representing the Enamel Workers Union No. 18630 of Moundsville, W. Va., affiliated with the American Federation of Labor have repeatedly en- deavored to negotiate an agreement with the United States Stamping Company covering rates of pay, wages, hours of em- ployment, and other conditions of employment for employees of your Company, but we have been unable to arrive at a satisfactory understanding to date. 80535-38--13 184 NATIONAL LABOR RELATIONS BOARD The proposal submitted by our organization was in no way an ultimatum, it was merely the basis on which we desired to open negotiations and carry through to a satisfactory conclusion; this the management has refused to do. At a special meeting held Saturday, October' 10, 1936, the entire proceedings was explained to the employees and by a substantial vote it was decided that work would cease Monday morning October 12, 1936, until at such time we could arrive at a satisfactory understanding on the issues involved. We are willing to meet with the management at any time to discuss the matter and endeavor to arrive at a satisfactory understanding. At the time of the hearing the Union had not voted to terminate the strike, although the respondent was then employing a greater number of persons in the plant than were employed at the time the strike was called. Of the 394 persons on the respondent's pay roll on October 10, 1936, the last working day prior to the strike, ap- proximately 240 had not returned to work in the plant at the time of the hearing. Approximately 11 of the 240 strikers had received substantially equivalent employment elsewhere.6 At the hearing counsel for the Board moved that the complaint be amended to allege that the strike of October 12, 1936, was caused by the respondent's refusal to bargain collectively and that the striking employees should, accordingly, be reinstated. The motion was granted by the Trial Examiner despite objections by counsel for the respondent. These objections were, in substance, that the facts stated in the amendment were not based on a charge as required by the Act and that the cause of the strike had been determined by a decree of the Circuit Court of Marshall County, West Virginia, that such decree was entitled to full faith and credit and made the cause of the strike res judicata. The record shows that on November 11, 1936, the respondent filed a bill in equity in the Circuit Court of Marshall County, West Vir- ginia, seeking an injunction against the Union and certain individ- uals who were participating in the strike. In the bill, in addition to allegations of unlawful acts on the part of the defendants in the conduct of the strike, the respondent alleged that the strike was caused by the refusal of the respondent to sign the agreement sub- mitted by the Union on September 28, 1936. 8 The record shows that Homer Kirby, one of the striking employees , returned to work In the plant in December 1936 but was discharged in January 1937 . At the hearing coun- sel for the Board moved to amend the complaint to allege that the respondent by dis- charging Kirby in January 1937 had engaged in an unfair labor practice within the mean- ing of Section 8 (3) of the Act. The motion was denied by the Trial Examiner. We, accordingly, make no findings concerning the discharge of Homer Kirby. DECISIONS AND ORDERS 185 The decree of the Circuit Court entered February 1937 prohibited the Union and the persons named in the petition from doing certain acts in connection with strike activities. A finding by this Board that the strike was caused by the failure of the respondent to bargain collectively will in no wise be a refusal to grant full faith and credit to the decree of the court. The allegation in the respondent's peti- tion to the Circuit Court as to the cause of the strike was immaterial to the relief sought, and, in addition, the Board was not a party to the proceedings. For these reasons, the principle of res judicata is inapplicable. The respondent's objection that the amendment is not based on a charge is also untenable. The original complaint, in conformity with the charge, alleged that a strike occurred at the respondent's plant on October 10, 1936, without stating the cause of the strike. Even though the complaint had not been amended, the Board could have found that the strike was caused by the respondent's refusal to bargain collectively and ordered that the respondent reinstate its striking employees. We find that the strike at the respondent's plant on October 12, 1936, occurred because of the respondent's refusal to bargain collec- tively with the Union as the exclusive representative of the main- tenance and production employees of the respondent. D. The alleged discharges Sylvester Riggs and William, Bane, the two employees alleged to have been discharged pursuant to an unfair labor practice within the meaning of Section 8 (3) of the Act, had for some years previous been employed as night watchmen by the respondent. During the period when the respondent was operating under the National In- dustrial Recovery Act, Riggs and Bane, who belonged to the Union, were told by one of the respondent's supervisory employees that they would have to resign from the Union or seek other employment. Both withdrew from membership in the Union at that time and have never subsequently rejoined the Union. During the strike at the respondent's plant in 1935, both of these men were laid off and other watchmen put in their places, but they were reemployed as watchmen on the termination of the strike. Riggs and Bane were not laid off or discharged at the time of the strike of October 1936 but continued to act as watchmen until February 1937. During this time windows were broken in the re- spondent's plant, and nails and tacks were placed on the respondent's property. The respondent does not claim that these men committed these acts, but complains that the men failed to find out who had committed the acts. 186 NATIONAL LABOR RELATIONS BOARD On February 6, 1937, Jared told Bane, "I am going to make a change." According to the testimony of Jared, he offered Bane the job of taking ware off a chain coming from an oven, Bane to begin work the following Wednesday. Jared likewise told Riggs on Feb- ruary 7, 1937, that the respondent was going to make a change and offered to find Riggs some other suitable work within the plant. Both employees arranged to return to see Jared on February 14, 1937, to consider other positions. Jared did not keep the appointment he had made to meet the two men on February 14, Jared testifying that he was ill at home on that day. On the following day, Riggs and Bane joined the picket line. By offering other positions in the plant to Riggs and Bane at the time they were relieved of their duties as watchmen, Jared indi- cated that he did not intend to discharge them but merely to change their positions. The respondent offered proof of general incom- petency and disability of these men for positions as watchmen. We believe the evidence clearly establishes the fact that Riggs and Bane were relieved of their duties as watchmen because the respondent feared that they were too sympathetic towards the Union's cause to be trustworthy watchmen. However, we do not believe an em- ployer, who during a strike relieves a watchman from his duties as such for this reason, has engaged in an unfair labor practice within the meaning of Section 8 (3) of the Act. We will accordingly dismiss the allegations of the complaint that the respondent discharged and refused to reinstate Sylvester Riggs and William Bane pursuant to an unfair labor practice within the meaning of Section 8 (3) of the Act. E. The use of labor spies The complaint, as amended, alleges that the respondent from November 1935 to September 1936 employed certain agencies and individuals for the purposes of espionage, intimidation, interference, spying, and keeping under surveillance the activities of its employees and the Union and for the further purpose of removing the president of the Union from the community. Earnshaw admitted at the hearing that he engaged the services of National Corporation Service, Inc., ". . . a service that keeps you informed as to what takes place around your plant . . ." in November 1935. In February 1936 National Corporation Service, Inc., put a secret operative named Earl Trombley in the, respondent's plant as a production worker. Trombley worked in the plant until April 29, 1936, "hen he was laid off because Earnshaw claimed he had secured all the information he wished. Trombley however was re- employed as a production employee by Jared on August 23, 1936, be- r DECISIONS AND ORDERS 187 cause the respondent had heard there was some dissension among the employees. Trombley continued working to Septembkl 5, 1936, ap- parently being removed by his employer because members of the Union had discovered his identity. The respondent continued the services of National Corporation Service, Inc., until October 1936. Earnshaw admitted that the respondent had used similar services in the past, but denied that it had used such services since October 1936. Earnshaw testified that the principal reason these services were employed was to detect sabotage within the respondent's plant. In addition, respondent through its counsel took the position that the respondent has every right to use such services. Some evidence, which the respondent claims shows sabotage by union members, was introduced at the hearing. The record indicates that during the year 1936 a large quantity of finished enamelware contained black specks, which rendered it unfit for sale. The only proof or attempt to prove that this substance was put into the enamel by union mem- bers was, testimony of selectors that within a short time after the strike practically all specking had disappeared. It is sufficient to state that, in our opinion, there is no proof in the record to show that this defect was caused by the putting of any foreign substance in the enamel, or if it was, that it was put there by members of the Union. In addition, there is no proof that National Corporation Service, Inc., was employed in connection with this alleged sabotage. Throughout the period from November 1935 to October 1936, unsigned reports were mailed to Earnshaw or handed to him at various places in Moundsville or Wheeling, West Virginia. These reports, received sometimes as often as two or three times daily during the time Trombley was employed in the plant, contained detailed information concerning the respondent's employees, includ- ing information on their labor affiliations, reports of union meetings, and activities of members of the Union. Trombley, whose actual identity and purpose for being within the respondent's plant had been carefully concealed, having joined the Union in March 1936, was of course in a position to secure this information for the re- spondent. It is clear that the Act makes it an unfair labor practice for the respondent to use such services for the purposes of inter- fering with, restraining, or coercing its employees from the rights guaranteed to them by the Act. We find that the respondent by the use of the services of National Corporation Service, Inc., has interfered with, restrained, and co- erced its employees in the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activi- ties, for the purposes of collective bargaining and other mutual aid and protection. 188 NATIONAL LABOR RELATIONS BOARD The record does not contain any competent evidence to prove the allegation of the complaint that the respondent employed National Corporation Service, Inc., for the purpose of removing the president of the Union from the community. We, accordingly, make no find- ing of an unfair labor practice with respect to this allegation. IV. THE EFFECT OF THE RESPONDENT'S . UNFAIR LABOR PRACTICES ON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and with foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY The record indicates that approximately 240 of the respondent's striking employees have not yet been reemployed by the respondent. Since the strike was caused by the respondent's unfair labor prac- tices, these striking employees must be reinstated in order to effec- tuate the purposes of the Act. The respondent declares that since the strikers have been guilty of certain acts of trespass, property damage, and assault on non- striking employees, the respondent will never reemploy these persons and contends that it cannot be compelled to do so. The respondent relies on the decree of the Circuit Court of Marshall County in the injunction proceedings as establishing such guilt. In addition, it offered certain grand jury indictments returned to the February 1937 term of the Circuit Court of Marshall County as further proof. It appears that damage to the respondent's property consisted of a few broken windows and some injury to automobiles and automobile tires. No acts were committed in excess of those which often accom- pany a bitter strike. The Board's power to order the reinstatement of employees is equitable in nature, to be exercised in the light of all the circum- stances of the case. Here the respondent itself has engaged in un- fair labor practices contrary to the express provisions of the Act. It was this violation of the law of the land which led directly to the strike. Weighing all these factors, and without condoning the acts charged to the employees in question, we feel that they should not be barred from reinstatement. Furthermore, the record indicates that the respondent now em- ploys certain persons who have been guilty of assaults or, against DECISIONS AND ORDERS 189 whom warrants alleging the commission of acts of violence have been issued. For this reason we cannot believe that the respondent's real objection to the reemployment of the strikers in question is based upon their responsibility for acts of violence.7 We will accordingly order the respondent to offer reinstatement to all of its employees who were on the pay roll on October 10, 1936, and who ceased work because of the strike, discharging if necessary those persons who have been hired by the respondent since October 10, 1936. As previously stated, the respondent offered other positions to Riggs and Bane when they were relieved of their duties as watch- men and it was for the purpose of discussing these positions that the men returned to the respondent's plant on February 14, 1937. However, before they had seen Earnshaw they joined the other em- ployees in the strike. We find that since the respondent contemplated using Riggs and Bane in other capacities, they had not ceased to be employees of the respondent at the time they joined in the strike. This being so, they are also entitled to reinstatement in the same manner as the other strikers. By returning to work in the respondent's plant in December 1936, Homer Kirby lost his status as a striker. We will not, therefore, order the respondent to reinstate Homer Kirby. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW ' 1. Enamel Workers Union No. 18630 is a labor organization, with- in the meaning of Section 2 (5) of the National Labor Relations Act. 2. The production and maintenance employees of the respondent constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Enamel Workers Union No. 18630 was on February 11, 1936, and has remained the exclusive representative of employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. 4. The respondent by refusing to bargain collectively with the Union since February 11, 1936, and on or about September 28, October 6 and October 9, 1936, has engaged in and is engaging in unfair- labor practices, within the meaning of Section 8 (5) of the National Labor Relations Act. P See Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L R. B 455. 190 NATIONAL LABOR RELATIONS BOARD 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the National Labor Relations Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the National Labor Relations Act. 7. The respondent did not discriminate with regard to the hire and tenure of employment of Sylvester Riggs and William Bane, within the meaning of Section 8 (3) of the National Labor Relations Act. ORDER Upon the basis of the findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, United States Stamping Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist: (a) From refusing to bargain collectively with Enamel Workers Union No. 18630 as the exclusive representative of its production and maintenance employees; (b) from, either directly or indirectly, engaging in any manner of espionage or surveillance or engaging the services of any agency or individuals for the purpose of, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining and other mutual aid and protection. 2. Take the following affirmative action which the Board finds will effectuate the" purposes of the National Labor Relations Act (a) Upon application, offer reinstatement with all rights and privi- leges previously enjoyed, to Sylvester Riggs and William Bane and to all of the respondent's employees who were on the pay roll on October 10, 1936, and whose work ceased because of the strike, with the exception of Homer Kirby, discharging if necessary those per- sons who have been hired by the respondent subsequent to October 10, 1936; (b) make whole those employees entitled to reinstatement, pursuant to Section 2 (a) herein, for any losses they may suffer by reason of any refusal of their application for reinstatement pursuant to Section 2 (a) by payment to each of them, respectively, of a sum equal to that which each of them would normally have earned as wages during the period from the date of any such re- fusal of their, application for reinstatement to the date of reinstate- DECISIONS AND ORDERS 191 ment, less the amount , if any, which each , respectively , may earn during said period; (c) post notices in conspicuous places through- out the plant stating that the respondent will cease and desist as aforesaid and keep said notices posted for a period of at least thirty (30) consecutive days from the date of posting; and (d) notify the Regional Director for the Sixth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. And it is further ordered that the allegations of the complaint which allege that 'the respondent discharged and refused to rein- state Sylvester Riggs and William Bane pursuant to an unfair labor practice, within the, meaning of Section 8 (3) of the National Labor Relations Act be, and hereby are , dismissed. [SAME TITLE AMENDMENT TO ORDER February 17, 1988 Paragraph 2 of the Order of the National Labor Relations Board issued in the above-entitled case on February 10, 1938, is hereby amended to read : 2. Take the following affirmative action which the Board finds will effectuate the purposes of the National Labor Relations Act: (a) Upon request, bargain collectively with Enamel Workers Union, No. 18630 as the exclusive representative of its produc- tion and maintenance employees; (b) upon application, offer reinstatement with all rights and privileges previously enjoyed, to Sylvester Riggs and William Bane and to all of the respond- ent's employees who were on the pay, roll on October 10, 1936, and whose work ceased because of the strike, with the exception of Homer Kirby, discharging if necessary those persons who have been hired by the respondent subsequent to October 10, 1936; (c) make whole those employees entitled to reinstatement, pursuant to Section 2 (b) herein, for any losses they may suffer by reason of any'refusal of their application for reinstatement pursuant to Section 2 (b) by payment to each of them, respec- tively, of a sum equal to that which each of them would normally have earned as wages during the period from the date of any such refusal' of their application for reinstatement to the date of reinstatement, less the amount, if any, which each, respectively, may earn' during said period; (d) post notices in conspicuous places throughout the plant stating that the respondent will cease and desist as-aforesaid and keep said notices posted for a period of at least thirty (30) consecutive days from the date of pasting; and (e) notify the Regional Director for the Sixth Region in writing within sixteen (16) days from the date of this Order what steps the respondent has taken to comply herewith. n