Wagner Iron Works

WAGNER IRON WCRKS 44 5 It has been found that the Respondent has refused and is continuing to refuse to bargain collectively with the Union as the certified exclusive representative of the employees in an appropriate unit. The undersigned therefore shall recommend that Respondent , upon request, bargain collectively with the Union as such representative and, in the event that an under- standing is reached, embody such understanding in a signed agreement. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices may be anticipated . The remedy should be coextensive with this threat. The undersigned shall, therefore, recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. District Lodge 37, International Association of Machinists , AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. Armstrong & Hand , Inc., is engaged in commerce within the meaning of the Act. 3. All production and maintenance employees , including truckdrivers , of Respondent employed at its Houston , Texas, plant, exclusive of office clerical employees, watchmen, guards, professional employees, foundry employees , all other employees, and supervisory employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, 4. District Lodge 37, International Association of Machinists , AFL, was on December 10, 1951 , the certified exclusive representative of all employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. Respondent Armstrong & Hand, Inc., from December 19, 1951 , and at all times thereafter , by refusing to bargain collectively with District Lodge 37, International Asso- ciation of Machinists , AFL, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practiceq within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] WAGNER IRON WORKS, a corporation and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO WAGNER IRON WORKS, a corporation and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO and BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 471 (AFL), Party to. the Contract and The "TEMPORARY COMMITTEE," Interested Party and "THE EMPLOYEES' INDEPENDENT UNION OF WAGNER IRON WORKS, Interested Party 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 471 (AFL), a labor organization and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Cases Nos. 13-CA-849, 13-CA-864, and 13-CB-148. April 28, 1953 DECISION AND ORDER On November 6, 1952, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Company and the Respondent Union had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices. Thereafter, the General Counsel, the Respondents, and the charging Union, the CIO, filed exceptions to the Intermediate Report and briefs.' The Board2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as they are inconsistent with our findings, conclusion, and Order hereinafter set forth. 1. We have examined the entire record in this proceeding and find no merit to the contention that the Trial Examiner was biased or prejudiced or that any party was denied a fair hearing. 2. Based upon the facts summarized in the Intermediate Report, section III, B, 2, we agree with the Trial Examiner that the Respondent Company interfered with, restrained, and coerced the employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) thereof. 3. The Trial Examiner found, based upon the facts recited fully in the Intermediate Report and therefore not repeated here, that the Company dominated and interfered with the formation and administration of the Temporary Committee and the Independent Union and contributed support to them, in violation of Section 8 (a) (2) of the Act, and recommended that they be disestablished. We agree.' The Trial Examiner also found that the Company dominated, interfered with, assisted, and contributed support to Local 471, AFL, in 1 The Company' s request for oral argument is hereby denied because, in our opinion, the record, including the exceptions and briefs , adequately presents the issues and the positions of the parties. 2Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Styles and Peterson]. 3As the Temporary Committee is no longer in existence, we shall order that the Company disestablish the Temporary Committee if it should be revived. WAGNER IRON WORKS 447 violation of Section 8 (a) (2), and recommended that it be disestablished. We agree that the Company -unlawfully interfered with, assisted, and contributed- support to the AFL. We do not agree, however, that the Company's conduct amounted to domination of the AFL within the meaning of Section 8 (a) (2). The Trial Examiner based his finding of domination of the AFL largely upon the Company's conduct in encouraging the AFL to fight the rival CIO union by promising financial help; by furnishing the AFL with a mailing list of employees; by printing and distributing anti-CIO literature and falsely attributing it to the AFL; by permitting AFL adherents to distribute literature, wear union insignia, and solicit memberships on company property during working hours while denying similar privi- leges to the CIO, sometimes under threat of discharge; by withdrawing from a consent election at the behest of the AFL; by continuing to recognize and deal with the AFL as exclusive representative and continuing to give effect to its contract with the AFL after its expiration; by proposing to and using the AFL shop committee to form the Temporary Committee as an independent union; by participating with the AFL committee in the formation of the Temporary Committee and the Inde- pendent Union; and by contributing support to the last two named labor organizations. The foregoing conduct of the Company occurred, as is more fully set forth in the Intermediate Report, as a result of the CIO's effort to displace the AFL as the employees' repre- sentative after a bargaining history of more than 14 years, during which the AFL enjoyed status as exclusive bargaining representative of the Company's employees under contractual arrangements gained by reason of the AFL's own and inde- pendent organizing efforts and resources .4 Under the circum- stances, notwithstanding the fact that the Company unlawfully assisted the AFL in many ways, we believe that such conduct does not establish that the AFL was a subservient organization to the point that the Company controlled it. Hence we conclude that the Company did not dominate the AFL within the meaning of Section 8 (a) (2). As we find that the Company's unfair labor practices in this respect were limited to interference and support and never reached the point of domination, we shall order that the Company only refrain from recognizing or dealing with the AFL unless and until it shall have been certified by the Board as the collective bargaining representative of the Company's employees. 4. We agree with the Trial Examiner that the Company discharged Gust John Gould and Jake Steffes because of their 4 Thus the situation with respect to the AFL is distinguishable from that of the Temporary Committee and the Independent Union, which were brought into the plant by the Company and existed only by reason of the Company's unlawful support. Cf. Jack Smith Beverages, Inc., 94 NLRB 1401, enfd. in 202 F . 2d 100 (C. A. 6); and Polynesian Arts. Inc ., 100 NLRB 658, where the Board found nationally affiliated unions to be dominated and ordered their dises tablish- ment upon a showing that the employer participated in their organization and supported them. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO union activities and not because of alleged drunkenness, as more fully set forth in the Intermediate Report, and that the Company thus violated Section 8 (a) (3) and (1) of the Act. 5. We also find , as did the Trial Examiner , that the Company discharged Roy McMahon and Don McMahon because of their activities or assumed activities on behalf of the CIO, and not because of any alleged misconduct on their part, as more fully set forth in the Intermediate Report, and that the Company thus violated Section 8 (a) (3) and (1) of the Act. 6. The Trial Examiner found that the Company discharged 22 night-shift workers, listed in Appendix A attached hereto, to discourage union activity on behalf of the CIO, and thus violated Section 8 ( a) (3) and (1) of the Act. We agree. In general , as set forth in the Intermediate Report, the Company did not select these 22 employees for discharge on the basis of their individual union activity ; rather, the Company believed that more C;O adherents were employed on the night shift than on the day shift, and, accordingly, it discharged this group of night - shift workers to discourage CIO union activity. Jesus Moreno was one of the 22 discharged night-shift workers . In the process of selecting the night - shift workers for discharge, the Company retained all those who had seniority status as of January 1, 1951 , except Moreno who was hired in October 1950. The Trial Examiner found, as the record establishes , that Moreno was "selected for termination be- cause of prior incidents of drinking on the job." The Trial Examiner concluded that the "discharge of Moreno," as well as that of the remaining 21 night-shift workers, "must also be found to be discriminatory, since the layoff was discrimi- natory in its conception." On the basis of the entire record , the Trial Examiner appears to have concluded that the Company had no legitimate reason to discharge the 22 night - shift workers as a group; that the Company discharged the group as a stratagem to discourage CIO union activity; and that the Company would not have discharged Moreno , despite his record for drinking on the job, but for the Company's unlawful resort to the stratagem involving the entire group . So viewed , as we view the discharges, we find that the Company discharged Moreno, as well as the other 21 night - shift workers, to discourage union activity, in violation of the Act. 7. For the reasons stated in the Board ' s recent decision in Mastro Plastics Corp ., 103 NLRB 511 , and in the Inter- mediate Report in the instant case , we agree with the Trial Examiner that the alleged breach of the no-strike clause in the AFL's contract did not afford a defense to the Company's discharge and refusal to reinstate the 57 striking employees listed in Appendix B hereto , and that the Company thereby violated Section 8 (a) (3) and (1) of the Act.5 SDavid Horgan 's name is listed in Appendix B. Horgan. Wesley Bajanen. Ervin Kusz, and Alexis Sobczak were discharged, as were the other strikers listed in Appendix B, on June 22. 1951. because they were strikers . At the end of the strike, the Company offered to reemploy Horgan, but he refined because the Company insisted that he sign an application as a new em- WAGNER IRON WORKS 449 The Trial Examiner rejected the Company' s defense , namely, that it was justified in severing the employment of the strikers because the strikers did not observe the no - strike clause, on the grounds (1) that the terms of the contract did not contem- plate, as within the no-strike clause, a strike caused by the employer 's unfair labor practices ; and (2 ) that, as a matter of law, an employer cannot invoke such a defense where the strike is provoked by his own flagrant unfair labor practices. Although the Trial Examiner thus rejected the Company's defense based upon alleged violation of the no - strike clause, the Trial Examiner also considered alternative bases urged by the General Counsel as reasons for rejecting this defense. Thus, the General Counsel urged that the Company could not rely on the no-strike clause because the contract was with an illegally assisted and dominated union and because the Company had itself been guilty of prior breaches of the contract and had abandoned the contract . The General Counsel has excepted to the Examiner ' s finding that there was no merit to these alternative grounds . In view of our decision herein, we need not and do not pass on the validity of these alternative bases urged by the General Counsel as reason for rejecting the Company' s defense based upon alleged violation of the no - strike clause. The Trial Examiner also rejected the Company 's defense that the strikers lost their employee status and thus became vulnerable to discharge because the strike occurred within the 60 -day period prescribed in Section 8 (d) of the Act. The Trial Examiner concluded that this defense had no merit for two reasons : (1) The strike was called by the CIO, who was not a party to the contract;' and (2 ) Section 8 '(d) applies only to strikes to terminate or to secure a modification of inter- pretation of a collective -bargaining contract , and not to an unfair labor practice strike, as this was. We agree .6 Moreover, the record shows that the AFL gave the requisite notice of termination of the existing contract by letter dated April 5, 1951 , and that the strike in this case did not begin until June 20, 1951 . Thus, although the contract did not expire until June 30, 1951, the strike did not occur until after expiration of the 60-day period prescribed by Section 8 (d).t For this additional reason, we reject the Company' s defense referred to above in this paragraph. 8. Like the Trial Examiner , we find that the Respondent Union violated Section 8 (b) (1) (A) of the Act by the conduct set forth in the Intermediate Report, section III ; C, paragraph 2. ployee• The Company reemployed Bajanen. Kusz, and Sobczak after the strike was over, but they quit after working a few days because the Company insisted that they sign applications as new employees. We agree with the Trial Examiner that the Company constructively discharged Horgan, Bajanen, Kusz, and Sobczak, in violation of Section 8 (a) (3) and (1) of the Act, on the respective dates specified in the intermediate Report. 6 While Chairman Herzog dissented from this holding in Mastro Plastic Corp .. s r be deems "elf bound by the majority opinion in that case. Wilson & Co., 89 NLRB 310. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Finally, we find, as did the Trial Examiner, that the Respondent Union attempted to cause and did cause the Company to discharge Roy McMahon and Don McMahon because of their real or assumed membership in and support of the CIO, thereby causing and attempting to cause the Company to discriminate against' these two employees in violation of Section 8 (a) (3) of the Act, and that by such conduct the Respondent Union engaged in unfair labor practices in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. To remedy these unfair labor practices, the Trial Examiner recommended that: (1) The Respondent Union be directed to make whole Don McMahon and Roy McMahon for loss of pay suffered by reason of the discrimination against them; and (2) the Respondent Union be ordered to advise the Company in writing that the Respondent Union has no objection to the reinstatement of Don McMahon and Roy McMahon. However, the record discloses that by letter, which the Company received on June 30, 1952, the Respondent Union advised the Company that the Union had no objection to the reinstatement of the McMahons. Accordingly, we shall limit the Respondent Union's liability for back pay with respect to the McMahons to the period from the date of their discriminatory discharge to June 30, 1952; and we shall not order the Respondent Union to advise the Company that the Union has no objection to the reinstatement of the McMahons. ORDER Upon, the entire 'record in-the 'base and pursuant to Section 10 „(c) of the National Labor Relations Act, as amended, the National Labor Relations BoardA hereby orders that: A. The Respondent, Wagner Iron Works, a corporation, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the formation or adminis- tration of or contributing financial or other support to the Temporary Committee, the Independent Union, or any other labor organization. (b) Contributing financial or other support to Bridge, Struc- tural & Ornamental Iron Workers Shopmen's Local 471 (AFL), or to any other labor organization. (c) Recognizing the Temporary Committee, should it be revived, or the Independent Union, or any successor thereto as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (d) Recognizing Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL) as the representative of any of its employees for the purpose of dealing with it concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and perform- WAGNER IRON WORKS 451 ing or giving effect to any contract with Local 471, or any successor thereto, unless and until Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL) shall have been certified as such representative by the Board. (e) Discouraging membership in UAW- CIO, or encouraging membership in Local 471, or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (f) Engaging in surveillance of its employees in the exercise of their rights guaranteed in Section 7 of the Act. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations , to join or assist UAW-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from, and completely dises- tablish, the Temporary Committee should it be revived, and the Independent Union, as the representative or representatives of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (b) Withdraw all recognition from Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL) as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said Local 471 shall have been certified as such representative by the Board. (c) Offer to Gust John Gould, Jacob Steffes, Roy McMahon, Don McMahon, Wesley Bajanen, Ervin Kusz, and Alexis Sobczak, to the 22 employees whose names are listed in Appen- dix A hereto, and to the 57 employees whose names are listed in Appendix B hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by payment to each of them of a sum of money equal to the amount each normally would have earned as wages from the date of said discrimination to the date of the offer of rein- statement , less his net earnings during said period ( Crossett Lumber Company, 8 NLRB 440, 497-98), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (d) Post at its plant at Milwaukee, Wisconsin, copies of the 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice attached hereto and marked "Appendix C."' Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall , after being duly signed by Respondent Company's representative , be posted by Respondent Company 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 Respondent Company to insure that said notices are not altered , deface d, or covered by any other material. (e) Notify the Regional Director for. the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Company has taken to comply here- with. B. The Respondent, Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL), its officers, representa- tives, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Restraining and coercing employees 'of Respondent Com- pany, its successors and assigns , in the exercise of the rights guaranteed them in Section 7 of the Act by threatening to request their discharge for failure to pay dues to it, except as provided in Section 8 (a) (3) of the Act. (b) Causing or attempting to cause the Respondent Company, its successors and assigns , to discriminate against employees in violation of Section 8 (a) (3) of the Act. (c) In any other manner restraining or coercing employees of Respondent Company, its successors and assigns , in the exer- cise of. 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 other con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make whole Don McMahon and Roy McMahon for any loss of pay suffered by them by reason of the discrimination against them, in the manner set forth in the Decision and Order herein. (b) Post in conspicuous places in its offices in Milwaukee, Wisconsin, and such other places as notices to members are customarily posted, copies of the notice attached hereto as Appendix D.' Copies of said notice , to be furnished by the Regional Director for the Thirteenth Region, shall , after being duly signed by an official representative of Respondent Union, •In the event that this order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." 'See foo tnote 8. st^ra WAGNER IRON WORKS 453 be posted 'by it immediately upon receipt thereof and be maintained by it for a period of not less than sixty (60) consecutive days thereafter in the aforementioned places. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for the Thirteenth Region signed copies of the notice attached hereto as Appendix D, fob posting in- the plant of Respondent Company in Milwaukee, Wisconsin, in the places where notices to employees are customarily posted, in the event that said employer may wish to post the notices. Copies of said notices, to be furnished by the Regional Director for the said Thirteenth Region, shall, after having been signed as prescribed in the preceding paragraph of this Order, be forthwith returned to the Regional Director for such posting by Respondent Company. (d) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed (1) insofar as it alleges that the Respondent Company violated the Act by dominating Local 471, AFL, and by discharging Frank Smejkel, Kenneth Boyer, Harold Blink, Anthony Galaska, Lawrence Houston, Walter Koehler, Marvin Markestad, William Packard, Theodore Wanick, and Ralph Welter; and (2) insofar as the complaint alleges that the Respondent Company and the Respondent Union violated the Act by executing , maintaining , and enforcing a collective -bargaining contract illegally requiring union mem- bership as a condition of employment. APPENDIX A Frank Ackerman Palmer Barthelmews Harold Case Arthur G. Ebbinger Gordon Fuller Thomas Gallian Grace Aurelio Ignatz Gonia Reuben Hilliard Sam Johnson Leon Keierleber Arthur Lewark Alvin Lindeman Kenneth Little Louis Machnik Jesus Moreno Dolor Muyleart Merlin Olson Loren Pitts Bernard N . Shaurette Allen Vogt B. Orville Ward 283230 0 - 54 - 30 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James Allison Curtis Barbian Donald Barbian Russell Bestul Keith Burdick Joseph Bolcerek James Corsentino Jerome Czysz James Dais Bernard Daubon Floyd Defenbough Wayne Defenbough Alvin DeGrave Willard Dent Stannard Doxtater Roman Fabich William Fronimadis Arthur Golding Walter Griefenhagen Eugene Groh Reuben Hamari Anthony Hendricks Arthur Hofner David Horgan Robert Jackson Roger Kearns Kenneth Knoll Robert Krueger James La Mora APPENDIX B Marvin Lueptow •Corlyss Miller Lawrence Mueller Myron Nelson Boleslaus Nowakowski Emil Opai se r Arvin Pace Raymond Pattenge Orville Peak David Perry Russell Pruitt Harold Reedich Joseph Remillard Vernon Rodd Gregory Salazar Erold Sasse Harold Schwamb Gerald Skorlinski Stanley Skorlinski John Stachera Joseph Sulik Harold Techmeier Reynaldo Valdovinos Joseph Wachowiak Raymond Walsh Norman Wittig Ramon Witz Henry Wiza APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT dominate, assist, foster, contribute support to , or in any manner interfere with the formation or administration of the Temporary Committee, or The Employees ' Independent Union of Wagner Iron Works, or of any other labor organization of our employees. WE WILL NOT contribute financial or other support to Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471 (AFL), or any other labor organization. WE WILL NOT recognize the Temporary Committee, or the Employees' Independent Union of Wagner Iron Works as the representative of any of our employees for the purpose of dealing with us concerning grievances, WAGNER IRON WORKS 455 labor disputes , wages, rates of pay, hours of employment, or other conditions of employment. WE WILL NOT recognize Bridge, Structural & Orna- mental Iron Workers Shopmen ' s Local 471 (AFL) as the representative of our employees for the purpose of dealing with us concerning grievances , labor disputes , wages, rates of pay, hours of employment , or other conditions of employment , unless and until Local 471 shall have been certified as such representative by the Board. WE WILL NOT discourage membership in International Union, United Automobile , Aircraft and Agricultural Im- plement Workers of America, CIO, or encourage mem- bership in Bridge , Structural & Ornamental Iron Workers Shopmen's Local 471(AFL), or the Employees ' Independent Union of Wagner Iron Works, or in any other labor organization of our employees , by discharging or refusing to reinstate any of our employees , or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. 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 Agricultural Implement Workers of America , CIO, or any other labor organization , to bargain - collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. WE HEREBY withdraw recognition from and completely disestablish the Temporary Committee, should it be revived, and the Employees ' Independent Union of Wagner Iron Works as the representative of any of our employees for the purposes of dealing with us concerning grievances, labor disputes , wages, rates of pay, hours of employment, or other conditions of employment. WE WILL offer to the 86 employees whose names are listed below immediate and full reinstatement to their former or to substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them: Gust John Gould Jacob Steffes Roy McMahon Don McMahon Wesley Bajanen Ervin Kusz David Horgan Alexis Sobczak Frank Ackerman Palmer Barthelmews Harold Case Arthur G. Ebbinger Gordon Fuller Thomas Gallian Aurelio Grace Ignatz Gonia 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reuben Hilliard Sam Johnson Leon Keierleber Arthur Lewark Alvin Linderman Kenneth Little Louis Machnik Jesus Moreno Dolor Muyleart Merlin Olson Loren Pitts Bernard H. Shaurette Allen Vogt B. Orville Ward James Allison Curtis Barbian Donald Barbian Russell Bestul Keith Burdick Joseph Bolcerek James Corsentino Jerome Czysz James Dais Bernard Daubon Lloyd Defenbough Wayne Defenbough Alvin DeGrave Willard Dent Stannard Doxtater Roman Fabich William Fronimadis Arthur Golding Walter Griefenhagen Eugene Groh Reuben Hamari Anthony Hendricks Arthur Hofner Jospeh Wachowiak Robert Jackson Roger Kearns Kenneth Knoll Robert Krueger James La Mora Marvin Lueptow Corlyss Miller Lawrence Mueller Myron Nelson Boleslaus Nowakowski Emil Opaiser Arvin Pace Raymond Pattenge Orville Peak David Perry Russell Pruitt Harold Reedich Jospeh Remillard Vernon Rodd Gregory Salazar Erold Sasse Harold Schwamb Gerald Skorlinski Stanley Skorlinski John Stachera Joseph Sulik Harold Techmeier Reynaldo Valdovinos Raymond Walsh Norman Wittig Ramon Witz Henry Wiza WAGNER IRON WORKS, Employer. Dated ................ By.................................. . ................ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. APPENDIX D NOTICE TO ALL MEMBERS OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 471 (AFL) Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WAGNER IRON WORKS. 457 'WE WILL NOT restrain or coerce employees of the Wagner Iron Works, their successors or assigns, in the exercise of the rights guaranteed them in Section 7 of the Act by threatening to request their discharge for their failure to pay dues to the undersigned union , except in accordance with Section 8 (a) (3) of the Act. WE WILL NOT cause or attempt to cause the Wagner Iron Works , its agents , successors , or assigns , to dis- criminate against its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of Wagner Iron Works , its successors and assigns, in the exercise of their right to self- organization, to form, join, or assist International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL make Roy McMahon and Don McMahon whole for loss of pay suffered bythemby reason of the discrimi- nation against them. BRIDGE , STRUCTURAL & ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 471 (AFL), Labor Organization. Dated ................ By ......................... ........................ (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE These proceedings , brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), and consolidated by order of the Regional Director for the Thirteenth Region, were heard in Milwaukee . Wisconsin, on various dates from April 21 to July 7, 1952, inclusive, pursuant' to due notice to all parties The consolidated complaint, issued on March 11, 1952, by the General Counsel of the National Labor Relations Board ' and based on charges duly filed and served, alleged in substance that: The General Counsel and his representatives at the hearing are referred to as the General Counsel and the National Labor Relations Board as the Board . The Respondent Company is referred to as the Company and as Wagner , Respondent Union as AFL and as Local '471, and the charging Union as CIO and as UAW-CIO. The interested parties are referred to, respectively , as the Temporary Committee and as the independent. The summary of the pleadings herein conforms to and includes various amendments made during the course of the hearing. All events , unless otherwise specified , occured in 1951. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Respondent Company had, since May 1951, engaged in unfair labor practices proscribed by Section 8 (a) (1), (2), and (3) of the Act by (a) a planned and continuous course of conduct, in- cluding various specified acts, by which it assisted, interfered with, fostered, and dominated Local 471, and subsequently the Temporary Committee and the Independent Union; (b) dis- criminatorily discharging, because of their CIO membership and activities, Gust John Gould and Jake Steffes on May 28, Roy McMahon and Don McMahon on June 4. and Frank Smejkel on June 19; discriminatorily laying off and discharging 22 employees (see.Appendix A) on the night shift on June 4; discriminatorily discharging on June 27, 66 employees 2 who had engaged in a strike called by CIO on June 20; constructively discharging David Horgan on June 27, Wesley Bajanen and Ervin Kusz on July 3, and Alexis Sobczak on July 7; and engag- ing in further discrimination by maintaining and enforcing with Local 471 a collective- bargaining agreement which failed to grant to all new employees a period of 30 days' freedom following the beginning of their employment for acquiring and maintaining membership in that Union; and (c) engaging in numerous other specified acts of interference, restraint, and coercion. (2) Respondent Union had, since May 1951, engaged in unfair labor practices proscribed by Section 8 (b) (1) (A) and 8 (b) (2) by (a) causing and attempting to cause the Company to dis- charge discriminatorily Don and Roy McMahon; (b) maintaining and enforcing with the Company the collective- bargaining agreement referred to above; (c) threatening employees with discharge by the Company unless they paid dues to Respondent Union; and (d) attempting physically to rip CIO insignia from employees. The Company by its answer denied the commission of the various unfair labor practices as alleged. For a separate defense, it pleaded that the strike called by CIO on June 20 was in spite of a valid no-strike clause in an existing contract with Local 471 (which had received a certification by the Board under Section 9), and was to force the Company to bargain with CIO, and that the strike therefore constituted an unprotected activity and also constituted an unfair labor practice under Section 8 (b) (4) (C) of the Act. Local 471 by its answer also denied engaging in the unfair labor practices charged against it in the complaint. All parties except the Temporary Committee were represented at the hearing by counsel or by representatives and were afforded full opportunity to be heard, to examine and cross- examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. On April 29, 1952, permission was granted to the General Counsel to amend the complaint to join as interested parties the Temporary Committee and the Independent Union, and the hearing was thereupon recessed to May 13, pending the service of appropriate notices of hearing and copies of the consolidated complaint and charges upon the new parties. 3 Upon resumption of the hearing on May 13, Stephen Scherba appeared specially for the Independent for the sole purpose of objecting to the Board's jurisdiction. He asserted lack of due process on grounds substantially equivalent to those previously asserted by the Company (see footnote 3. supr), urged that the Trial Examiner lacked power to order the joinder or interpleader of new parties, particularly at an intermediate point in the proceedings, and that the attempted interpleader of the independent at the then existing stage of the proceedings was highly prejudicial to its rights and constituted a denial of due process. The General Counsel in response referred to his earlier offers to make available to Scherba a transcript of the record and to recall for cross-examination any or all of the witnesses who had previously testified The General Counsel also stated his position that the new parties were joined in order to give them an opportunity to appear and, if they chose, protect any rights they might have in the proceedings, that the new parties, though properly joined, were not necessary parties because they were not parties to the contracts and that 2 The 57 whose names are listed in Appendix B. hereto, plus Kenneth Beyer, Harold Blink, Anthony Galaska, Lawrence Houston, Walter Koehler, Marvin Markesiad, William Packard, Theodore Wanick, and Ralph Welter. 3 Respondent Company objected to the amendment for joinder of additional parties as improper under the Act and the Board's Regulations and as a denial of due process to all parties, urging that the filing of charges , the making of an investigation, and the issuance of a complaint were prerequisites to the naming of parties to an unfair labor practice proceeding. Its objections-were overruled. See cases cited at footnote 4, infra. 4Compare Consolidated; Edison Company, v. N. L. R, B., 305 U. S. 1 97, with N. L. R. B. v. Pennsylvania Greyhound Lines,- 303 U. S. 261; Pittsburgh Plate Glass Company v N. L. P. B., 313 U. S. 146; National licorice Company v. N. L. R. B., 309 U. S. 350, 366-7; and see N. L. R B. v. Ind. & Mich. Electric Co., 124 F. 2d 50 (C. A. 6). Also see Parker Brothers and Company, Inc., 39-CA-141, remand order dated October 22, 1951, and Otis Elevator Company. 7-CA-343, remand order dated March 15, 1951. WAGNER IRON WORKS 459 though he might, if he chose , dismiss them, he chose not to. Scherba withdrew from the hearing and did not participate further in the proceedings. Prior to the recess on April 29 , 1952, the General Counsel' s trial representatives entered into a settlement stipulation with Respondent Union of all matters involved in Case No. 13-CB- 148, which provided for Board approval and for the entry of a decree by a circuit court of appeals thereon. The stipulation expressly recited that it was made subject to ap- proval by the Board and that it was to be of no force and effect until Board approval was obtained . The Examiner ordered that the stipulation be transmitted to the Board . See State- ments of Procedure, section 101 . 9. Thereafter , the General Counsel endeavored to refrain from the presentation of further evidence directly relating to Case No. 13-CB -148. except such as was also relevant to the case against the Company. On June 20 , the General Counsel' s representative formally announced that the settlement stipulation had not been approved by the General Counsel' s office in Washington . Counsel for Respondent Union were informed on the record that the General Counsel would make available to them a transcript of the evidence taken subsequent to April 29 (since which date the Union' s counsel had not participated in the hearing), that the hearing , insofar as Case No. 13-CB- 148, was concerned , would be continued until Respondent Union had full op- portunity to present its witnesses and evidence, and that it might also recall for further cross-examination any or all witnesses whose testimony had related to Case No . 13-CB-148. Thereupon , on agreement of all parties , the hearing in Case No. 13-CB -148 was recessed to July 7, 1952. Upon the resumption of the hearing on July 7 , Respondent Union filed an amended answer which may be briefly summarized as follows : After incorporating all averments of its original answer , it pleaded " by way of accord and satisfaction and estoppel" the settlement stipulation previously entered into with the General Counsel's representatives; that in reliance thereon and on the General Counsel' s assurances of approval, its counsel had withdrawn from the hearing, which thereafter proceeded until June 23 without participation by the Union , though with testimony given by its officers and agents called by the General Counsel for examination under Rule 43-b of the Federal Rules of Civil Procedure , that the dilatory treatment and delayed disapproval of the settlement agreement had effectively deprived the Union of due process of law and of the equal protection of the laws in that , with the entire case against it completed , it was impossible to prepare and present a proper defense The answer concluded with the prayer that the Board enter an order consistent with the settlement stipulation, and that it dismiss so much of the complaint as was inconsistent therewith; and the Union' s counsel also moved orally for a final order or decision in ac- cordance with that prayer. During ensuing argument, the General Counsel represented that he did not propose to request an order against the Union broader than that contained in the settlement stipulation , with the exception of the provision which had limited the liability of the Union for back pay to certain dischargees to the payment of a flat sum of $300. The Examiner reserved ruling on the motion. and the hearing was concluded shortly thereafter upon the submission of brief additional evidence concerning the 8 (b) (1) (A) and the 8 (b) (2) allegations of the complaint. The Company objected to that testimony in view of the prior resting of the CA cases, and it also urges in its brief that it was irreparably damaged by the continuation of the hearing on the assumption that the CB case had been settled and by the resurrection of that case in the closing hours of the hearing , and that the continuation of the hearing under the circumstances resulted in denial of due process as to it . Those contentions are based mainly on the fact that during the period when the settlement agreement was under consideration in Washington, the General Counsel was permitted to examine Thomas Handon and Charles F . Waldow under 43-b of the Federal Rules of Civil Procedure in the absence of counsel for the Respondent Union, who had withdrawn from the hearing. The Company also urges that the Trial Examiner presently remedy the asserted denial of due process by (1) disregarding the testimonyofHandon and Waldow insofar as it was adduced over its objections , and the testimony of the witnesses who testified on the final day of the hearing , and (2) by dismissing the complaint with respect to the 8 (a) (2) violations and with respect to the 8 (a) (3) violations in regard to the discharge of the McMahons. There was certainly no denial of due process as to the Company because of the examination of the Union' s representatives after the Union's counsel had chosen to withdraw from the hearing. Though all parties may well have assumed that the settlement stipulation would be approved , yet it expressly recited that it was subject to Board approval and was to be without B The recommendations herein on the CB case are in substantial accord with the settlement stipulation , save that the Union' s liability for back pay has not been limited . See H. M. Newman, 85 NLRB 725, 732. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect until such approval was obtained. The Union, therefore, obviously remained a party to the proceeding, and the voluntary withdrawal from the hearing by the Union's experienced labor counselor could affect neither the Union's status as a party nor the General Counsel's right to adduce evidence in support of his consolidated complaint. It is pertinent to state, however , that the testimony taken on the last day of the hearing has been considered only in making findings on the CB case against the Union . The Handon- Waldow testimony has been considered fully insofar as it is relevant to both.eases. Much of Handon' s testimony was taken without objection by the Company , and much that he and Waldow testified to was cumulative and was corroborated by other evidence. All parties (except the Temporary Committee) were represented at the hearing by-counsel, were afforded full opportunity to be heard , to examine and cross-examine witnesses, to introduce relevant evidence , to argue orally , and to file briefs and proposed findings and conclusions. Upon conclusion of the hearing on July 7, the case was argued orally by the General Counsel and by company counsel. Company counsel also moved to dismiss the com- plaint in its entirety as well as any portion thereof which was not supported by the evidence. Ruling was reserved ; the motion is disposed of by the findings and conclusions herein. Briefs have been filed by the General Counsel and by the Respondent Company.• Upon the entire record in the case , and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Wagner Iron Works is a Wisconsin corporation with its office and plant at Milwaukee. Wisconsin , where it is engaged in the business of the fabrication and sale of metal . During the calendar year 1951 , it purchased raw materials valued in excess of $250 ,000, of which more than $100,000 were shipped to it from extrastate points . During the same year the Company's sales exceeded $ 2,000,000, more than 90 percent of which was shipped by it to extrastate points. The Company is, therefore , engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Local 471 and UAW-CIO are labor organizations within the meaning of the Act. It is also found, on the basis of the evidence summarized infra, section III A, 11 and 12, that the Tem- porary Committee and the Independent Union are labor organizations within the meaning of the Act. Cf. Indiana Metal Products Corp., 100 NLRB 1040. eContpany counsel made frequent references during the hearing to charges which the Company had filed against CIO, urging that the Company ' s rights were somehow prejudiced by the handling and disposition of those charges and by the failure of the General Counsel and/or the Board to consolidate and hear that case with the present cases . Cf. N. L. R. B, v. Donnelly Garment Co., 330 U. S. 219, 233-6. The facts concerning those charges will therefore be briefly stated. On June 25, 1951, the Company forwarded to the Chicago Regional Office charges against UAW-CIO alleging violations of Section 8 (b) (1) (A) through various threats against employees made on June 5, 7, 12, and 15, and through other threats made on the picket line after the strike began on June 20 . On those charges , filed under Case No. 13-CB- 144, the General Counsel issued a complaint on March 18 , 1952, and the hearing was scheduled for the same time and place as the hearing in the present proceeding , i e., April 21 , though the case was not assigned to a Trial Examiner . However , on April 8, 1952, a settlement stipulation was entered into between the General Counsel and the UAW -CIO (the Company not joining therein), which was subject to the approval of the Board and which provided for the entry of a cease- and-desist order by the Board against UAW -CIO, for the posting of notices, and for the entry of a decree by a United States court of appeals enforcing the Order of the Board. On June 10, 1952, the Board issued its Decision and Order in said case, approving the stipulation and entering the order which had been agreed upon . Subsequently , on June 24, the Board petitioned the -Court of Appeals for the Seventh Circuit for enforcement of its order , and enforcement was granted on July 8, 1952. Company counsel failed to specify any respect in which the Company ' s defenses to the present proceeding or the presentation of relevant evidence were prejudiced in any manner. To the contrary , the Company was repeatedly assured and extended full opportunities for presenting any evidence concerning those charges insofar as relevant to its defenses and to the issues herein. WAGNER IRON WORKS 461 In. THE UNFAIR LABOR PRACTICES A. The evidence 1. Introduction; synopsis of main events; the supervisors The Wagner Company has been in existence for more than 100 years. Its managing officers, during periods pertinent hereto, were A. A. Wagner, president, A. J. Werner, vice president, and Joseph Dyskow, plant superintendent. For some 14 years the Company had recognized Local 471 as the bargaining agent of its employees and had entered into a series of collective-bargaining agreements with that union whose officials were, so far as relevant hereto, Charles F. Waldow, business agent and financial secretary, and William J. Modell and Elmer Kornberger, general organizer and special representative, respectively, of the international union. The most recent contract, dated July 1, 1950, contained a union-security clause and a no-strike clause and provided for a 1-year term, to be automatically renewable from year to year unless terminated by 60 days' notice prior to the anniversary date. On April 5, 1951, Local 471 gave notice of termi- nation as of June 30 and of its desire to negotiate a new contract. Sometime in May there ateose among some of the employees a feeling of dissatisfaction with their representation by the AFL local, as a result of which certain employees sought out UAW-CIO, which began a membership drive the latter part of May On May 31 the UAW- CIO filed a representation petition with the Board's Regional Office in Chicago, under Case No. 13-RC-2021, and on June 6 a consent-election agreement was entered into between the Company, AFL, and CIO, which provided for an election on June 18. Thereupon a spirited campaign ensued between AFL and CIO. On June 15 the Company withdrew its consent to the election, and the CIO adherents struck on June 20. AFL thereupon gave the strikers notice, in the form prescribed by the contract, that their action was unauthorized, and ordered them to return to work. On or about June 22, the Company formally notified many of the strikers that their employment was terminated because of their violation of the no-strike clause. The strike was ended on June 27; the Company reinstated some of the strikers, but refused reinstatement to most of them. The General Counsel offered testimony, some of which was controverted and some not, 7 that beginning shortly after the inception of the CIO membership drive, the Company embarked upon a campaign to discourage CIO membership, during the course of which it engaged in numerous alleged acts of interference , restraint, and coercion , of assistance and support to AFL, and a series of discriminatory discharges, some of which were allegedly made at the behest of AFL. Evidence was also offered, largely undenied, that following the strike the Company con- tinued its assistance and support of the AFL local until January 1952, and that thereafter the Company sponsored, assisted, supported, and dominated the Temporary Committee and the Independent Union. Since an understanding of the significance of various events will be facilitated by a resolu- tion of the status of the Company's supervisors, the issues concerning them will be disposed of preliminary to a summary of the evidence. In addition to Wagner, Werner, and Dyskow, other conceded members of the Company's suprvisory staff were Thomas Schnuck, night superintendent and assistant superintendent, Mike Banaszak, assistant superintendent , and George Golner, Walter Bartsch, and Chester Goetz, foremen. An issue was presented as to the supervisory status of Foremen Tony Dobrangky, Stanley Wotta, Wayne Beck, and Eric Ewald, by whom the complaint also charged the commission by the Company of various unfair labor practices. The Company contended that they were no more than working foremen or group leaders, who were without the requisite authority to qualify for supervisory status. Indeed, the Company had maintained a similar 7 The Company offered no evidence to rebut the testimony of the General Counsel's wit- nesses on a number of important issues . It explains in Its brief that it chose that course because of its labor relations policy not to call employees presently in the employ of the Company and because of its reliance on the inconsistencies and inherent improbabilities of the testimony of the General Counsel's witnesses. Though a certain degree of inconsistency and conflict developed , as was only natural in view of the large number of witnesses put on by the General Counsel, much of the testimony was mutually corroborative on matters which were significant and important; and in its cumulative weight, it was overwhelming. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention as to Bartsch until his testimony , late in the hearing , conclusively established his supervisory authority. The evidence establishes that the working foremen regularly attended foremen' s meetings at which were discussed such subjects as plant production , materials , supplies , and the extent of the foreman' s power and authority over employees . Thus, Robert Krueger , who was a welding foreman until about June 11, testified , without denial , that the foremen were informed by Dyskow during the meetings that although they could not hire employees , they could recom- mend discharges , and that if they wanted to fire an employee , they could do so by sending him to Dyskow' s office with the recommendation that he be discharged , and that the recom- mendation would be acted upon and carried out. The extent of the foremen's control over the employees in their departments was well illustrated by Schnuck's testimony as to Bartsch's authority . Bartsch was foreman on the bucket line on the night shift under Golner and Schnuck . Although Bartsch was a working foreman and did welding along with the employees. Schnuck testified that Bartsch had com- plete control over the employees in directing their work , assigning them to their jobs, and transferring them within the department , and that Bartsch also could make effective recom- mendations covering promotions and pay raises . Bartsch's own testimony disclosed that he could recommend discipline, and that he had effectively done so. This evidence was sufficient to establish the status of the foremen as supervisors;8 but even if it did not, yet it disclosed that the status occupied by the foremen was such that their acts are attributable to the Company. Thus, the foremen not only exercised substantial authority over subordinate employees , but were in a strategic position to translate the policies and desires of management to those employees . Consequently their positions identified them with management in such a way as to cause the employees to look to them for guidance regarding the Company's policies. Harrison Sheet Steel Co., 94 NLRB 81, enfd. 194 F. 2d 407 (C. A. 7), and cases cited. A question remains as to the status of Wayne Beck prior to the time he succeeded Krueger as foreman on or about June 11. Werner testified that Beck was originally employed on a special assignment to check and to report on a slowdown of production, that Beck was placed among the welders , that he made nightly reports direct to Werner , and that he uncovered the program of planned production for which one Larsen and four other employees had been discharged early in May Beck then requested and was given regular work as a permanent employee. Werner also testified that: Q. In respect to Mr . Beck's special assignment , did he not also report to you concern- ing CIO activities? A. Yes, CIO and AFL. In subsequent testimony Werner attempted to.qualify that unequivocal admission . Thus, he later denied that it was any part of Beck ' s duties to report to him on AFL and CIO activities, but he admitted that Beck had conferred with him early in June concerning the question whether Beck should join AFL or CIO (having been invited to join both unions ); that Werner suggested that Beck go to meetings of both unions " to see what they had to say"; and that Beck later reported to Werner that he had attended CIO meetings and signed an application card but had later changed his mind. Other evidence , later to be adverted to, included Werner's open claims in meetings with employees that he had " loyal employees" who were reporting to him what was going on in connection with CIO activities. In view of Werner' s entire testimony, those references must certainly be presumed to have included Beck. Nor was there evidence that the original nature of Beck ' s employment was unknown to the employees . Any secrecy concerning his activities must certainly have been dissipated by his expose of Larsen, et al., and by their discharge as a result thereof. In their entirety, there- fore, Beck' s; activities were such as clearly to establish his identification with management in the eyes of the employees, if not, indeed , an actual agency. The Company' s responsibility for Beck' s preforeman acts must , therefore, also be found 2. The CIO drive is started ; the discharge of Gould and Steffes It is difficult to determine precisely the source or to trace the early stages of employee dissatisfaction with their representation by Local 471. There was evidence that in April or 8 There is no evidence, however , from which it can be determined that Eric Ewald was a member of the group in questic nor, indeed, any evidence which attributed to him the commission of alleged unfair labor practices. WAGNER IRON WORKS 463 early May , Don McMahon and possibly Larsen, then chief steward of AFL, conferred with CIO officials concerning a disputed question of contract interpretation regarding holiday pay on which their opinion varied from the interpretation given the contract by AFL and the Com- pany , and that McMahon' s visit to the CIO office was the subject of discussion in an executive board meeting of Local 471 . Early in May Respondent discharged five employees , including Larsen, and a short strike occurred in protest There is evidence that Larsen had previously become interested in the CIO . There was evidence also that some of the AFL stewards and committeemen had been handicapped in effectively adjusting grievances because they had not been furnished with , and in fact had never seen, a copy of the contract. Shortly after the middle of May, rumors began to circulate that officials of Local 471 had signed, or were about to sign , a new contract with the Company without first submitting it to the members for approval. The leaders in attempting to run down those rumors were Jake Steffes and Gush John Gould , steward and committeeman , respectively , on the night shift. Gould was a welder on the bucket line under Bartsch and Golner , and Steffes was a pressure welder under Golner and Schnuck. On the evening of May 23, Gould and Steffes set out to check on the rumors. Having first obtained permission from Schnuck, they left the plant an hour early , went to the Kilowatt Bar nearby , and there confirmed from the proprietor that AFL officials had exhibited to him a proposed new contract which was ready for signature by the Company.9 ' The next morning Gould and Steffes went to the office of UAW-CIO, conferred with the of- ficials of that Union, and thereupon began an intensive drive r mong the employees to renounce their AFL representation and to switch to the CIO . On May 24 and 25 their activities were carried on mainly in the Kilowatt Bar and other nearby taprooms, which were frequented by Wagner employees before and after the change of shifts . On the 25th, they began the procural of application cards. Their activities were immediately brought to the Company ' s attention. Handon testified that during the period when Gould and Steffes were absent , he reported to Schnuck that there was CIO solicitation going on on the night shift and that Schnuck stated that he had heard about it. Donald McMahon testified that on May 24 Schnuck inquired whether he had heard about Gould's and Steffes' attempts to get the CIO into the plant and commented , "Well, we don't want anything like that , all we' ll have is a bunch of strikes and stuff on our hands, and we have been coming along pretty well with the AFL ... we'll have to see what we can do about it, about getting rid of them." Schnuck could not recall any conversation with Handon concerning the CIO activity or any with McMahon concerning Gould and Steffes or the CIO . In fact Schnuck denied learning of the CIO activities of the latter until the day after`' he had discharged them. However , Foreman Golner testified that 2 or 3 days prior to May-26 , Schnuck had informed him that there was CIO activity in the shop and had directed him to report to Schnuck anything he saw or heard concerning it. Furthermore . Schnuck' s conversation with Bestul (referred to below), which followed shortly after the discharge , disclosed Schnuck's prior awareness of Gould's and Steffes' activities. In the face of this cumulative evidence Schnuck' s denials are not credited. Nor, because of his demeanor and his manner of testifying, which was punctuated with frequent answers such as, "I don't recall" and "I don't remember," has his testimony generally been credited except where substantially corroborated. Though neither Gould nor Steffes worked on May 24 or May 25, Gould testified that on each day he and Steffes applied to Schnuck for permission to be off and that Schnuck granted such permission. Though Gould's testimony was far from satisfactory on this point, Schnuck's was even less so. Thus Schnuck at first denied that either Gould or Steffes came to the plant on either Thursday or Friday , but he later admitted that he saw Gould come in on Thursday but claimed that Gould left after a few minutes without speaking with him. Schnuck finally testified , however, that he could not "honestly say," because he could not remember, whether Gould and Steffes obtained permission from him to be absent at the beginning of their shift on Thursday and Friday evenings , nor could he "honestly say" that their absences were not excused. Schnuck also admitted that the practice of the Company was to pull from the rack the time- cards of employees whose absences were not excused and that the Gould and Steffes cards were not pulled . Furthermore, the evidence is undisputed that neither Gould nor Steffes was questioned or reprimanded in any way when they reported to work on Saturday , but that they were permitted to punch in and go to work without comment . The entire evidence therefore supports Gould' s testimony that the absences on Thursday and Friday were excused. 9 Though Wagner' s counsel ridiculed Gould 's testimony to the foregoing effect as inherently incredible, no attempt was "made to refute it . The point is not material , however , except to trace the manner by which employee sentiment defected from AFL. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gould and Steffes reported to work on Saturday , May 26, at noon, punched in , and went to work. 10 However , at intervals Gould openly solicited signatures to CIO application cards. In- deed , shortly after his arrival Gould solicited Donald Barbian in Golner 's presence, and fol- lowed that by soliciting Golner himself., Gould then went to his regular work station for welding, but on 2 or 3 occasions for 2 or 3 minutes each during the hour and a half he remained at work, he was assigned by Golner to assist Russell Bestul in sawing some heavy ship channels on which Bestul needed help . Golner testified that on the first of those oc- casions he had himself also lent a hand. Gould testified that at one time he conferred with Steffes about their inability to obtain a copy of the AFL contract and that he later informed Bestul that he was leaving work to try to sign up some more day-shift employees at the Kilowatt Tap. Gould testified that he also reported to Schnuck that he was "disgusted" and wanted permission to get off, _ and that Schnuck granted the request . In the meantime, Steffes had also walked up to them, pleaded that he had a bad toothache, and Schnuck similarly granted Steffes permission to leave. The two men punched out around 1:30 p. m., and went to the Kilowatt Bar , where they continued their campaign of solicitation for CIO. On Monday , May 28, when Gould and Steffes reported for work , their cards were not in the rack. They testified that they were referred to Schnuck, who informed them that they were discharged for passing ,out CIO cards. When Gould inquired ,whether Schnuck could prove it, Schnuck replied that he had plenty of proof and brought in Handon, the chief steward of AFL, who affirmed Schnuck's charges and added, "This is an AFL shop and you can 't do tat here." u When they returned on Tuesday at Schnuck' s direction to obtain their pay , they were informed by Dyskow that they had been discharged for being drunk. Bestul testified that on May 28, shortly after the discharge, he started to talk to Steffes as Steffes was getting his clothes out of the locker , but that Schnuck came up and said, "Jake Steffes, you are to get out of here; you are fired; I don't want you talking to these men." Schnuck later inquired of Bestul what Steffes had said to him in the locker room , and told Bestul that Gould and Steffes "were fired for being drunk last Saturday ," Bestul's testimony continued: I said, Well that is news to me, " I said "Johnny Gould was helping me on the saw, and I never knew that that man was drunk . In fact, I did not know that that man had been drinking at all. " To which Mr. Schnuck said , "Oh yes, he was loaded." I said, "If he was loaded, why didn't the Company send him home." Mr. Schnuck said , "Well. I was just going to send him home." Then he went on to talk about the CIO . He said, "After all, Johnny and Jake are radical when it comes to belonging to the CIO .... Furthermore, they cannot have an election, they cannot switch unions . We had an election here about two years ago and they cannot have another election for 5 years , so it doesn't do them any good to try to get the CIO in now .... The Company fired Jake Steffes and Johnny Gould for coming in drunk, and that the AFL union fired them for passing out CIO cards .... They have had AFL there about 14 years, or something like that, and they had no trouble with them, they were satisfied as far as he was concerned." Schmuck testified that Bartsch, Milton Manhoff, and Golner had reported to him on Saturday that Gould and Steffes had been drunk , or were drinking and were in no condition to be working, that he reached the decision then to discharge them, but they left the plant before he could see them, and that he discharged them on Monday . Schnuck gave no details on the actual dis- charge interview, but testified that he discharged them for being drunk on Saturday, not for any conduct on Thursday or Friday. 10 Though the regular night-shift hours were from 4 p.m. to 2 a .m., the Saturday shift was from noon to 5 p.m. u Handon denied that there was any reference to passing out CIO cards , and testified that Schnuck stated he was discharging Gould and Steffes for being drunk on Saturday. However, under Bestul's credited testimony, infra, Schnuck, shortly after the discharge, had specifi- cally referred to the part which th e CIO cards had played in the action taken both by AFL and the Company. Handon's foregoing testimony is, therefore, not credited. Handon also at one time volunteered, while being questioned by the General Counsel , that he had seen Gould and Steffes drunk sometime during the previous week, but on the General Counsel's motion, the statement was stricken as not responsive. Company counsel made no attempt to pursue the matter on cross -examination or to connect it with the alleged drunkenness at the plant on Saturday. WAGNER IRON WORKS 465 Bartsch and Manhoff testified that they observed both men at close range just after they punched in on May 26 ; that both of them, particularly Steffes , were noticeably under the influence of liquor , i.e., they were staggering and smelled strongly of liquor. They testified that Manhoff commented to Steffes concerning his condition , referring to his "load" or his "shine," and that Steffes acknowledged , "yeah, ain't it a beaut." Bartsch testified that he did not report Gould to anyone and Manhoff Similarly testified that he did not report the incident to anyone, because Bartsch , a foreman, was present , and that he did not discuss it with Schnuck until after the discharge. Golner gave conflicting and contradictory testimony as to the condition of Gould and Steffes. He testified at first that they had been drinking excessively and that he so reported to Schnuck a few minutes after Gould had solicited his signature on a CIO card . He admitted , however, that he would not have assigned an employee who was under the influence of liquor to assist on the saw , and explained that he had not sent Gould home because he was not drunk enough, nor was it unsafe or dangerous for him to continue working in his condition. Golner' s testi- mony was also substantially impeached by a prior affidavit given during the General Counsel's pretrial preparations in which he had stated that "At the time I spoke with Schnuck I didn't say anything about the fact that they had been drinking because I couldn 't honestly say they were drunk because that wouldn't be the truth." Schnuck' s testimony that he recalled seeing Gould and Steffes only when they were leaving that day and that they were staggering at the time is not credited . Schnuck testified further that after they had gone he checked with Foreman Bartsch and with Manhoff and Golner who informed him that they were drunk or had been drinking and that they were in no condition to work. Golner testified , however , that it was only a few minutes after Gould had solicited him for CIO that he reported to Schnuck (pursuant to Schnuck's earlier instructions ) that Gould was circulating CIO cards and that "at the same time I mentioned the fact that Johnny Gould and Jake Steffes had been drinking ." The quoted portion of that testimony was impeached by Golner's prior contradictory affidavit referred to above. Gould and Steffes denied having drunk anything intoxicating on Saturday morning , except for possibly a short beer , and their testimony was corroborated by Arthur Ebbinger who had been in their company most of the morning. Other witnesses for the General Counsel who had seen them at the plant testified that their actions and demeanor were normal and did not indicate that either had been drinking. 3. The discharge of the McMahon brothers Don and Roy McMahon worked on the day shift, Roy as a welder on the loader line under Foreman Krueger , and Don on the yard crew under Foreman Dobransky. Roy had early taken an active part in the CIO organizing campaign, and because of that fact it was generally assumed among the employees that Don , who was an AFL committeeman, was also favorable to CIO. That impression was doubtless fostered also by the fact that during an earlier execu- tive board meeting of Local 471, there was discussion of Don's contact with CIO regarding the disputed interpretation of the holiday-pay clause in the AFL contract. In any event, Don testified that , though he had refused solicitations to join the CIO, he had been accused by Modell on Sunday, June 3 (the day before his discharge), of being in effect a spy for the CIO and of taking information to it. The Company, similarly , was fully aware of the CIO leanings of the McMahons. Thus, in its campaign literature (later to be adverted to) it repeatedly characterized the McMahons as spies and traitors to the AFL and as stooges for the CIO. Don was also accused of having made a "back door deal" with Larsen to help organize the CIO and to spy on AFL. During the discharge conference, later referred to, Werner also had characterized Don McMahon as a "spy for CIO," and when Don denied the charge, Werner boasted that he knew what was going on (in connection with CIO activities), because he had loyal employees who were report- ing to him. Waldow testified that Werner called him on Sunday evening, June 3, and stated that he was going to fire the McMahons for the reason that Roy had gone to a CIO rl eeting during working hours one afternoon and that Don had punched out Roy' s card for him at 4'30. Waldow, who had previously heard reports from Richard Willing, an AFL committeeman, that the McMahons had quit the AFL and that Don was slated for the presidency of CIO, made no protest, he testified , because he was not opposed to the discharge of the CIO adherents. Krueger testified that on Monday morning, Dyskow questioned him about whether he had missed any of the men on his crew the preceding Tuesday (May 29). When Krueger answered negatively, Dyskow asked how he could explain the fact that Roy McMahon was seen at the tavern that afternoon and that Don had punched him out. Dyskow also claimed that the Com- 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany had had the FBI check the fingerprints on the timecards and that Don 's fingerprints had been found on Roy 's card. Krueger was later questioned by Dyskow and Werner together, and Werner repeated substantially the same statements which Dyskow had made. Krueger in- formed them he was certain that Roy was present on the afternoon in question , because he had, as customary, checked Roy's production near the end of the shift. Nevertheless, Werner directed Dyakow to call in the McMahons and the AFL shop committee, and dismissed Krueger, stating, "We won't need you here any more ... don't say anything about this to anyone else." The McMahons were then called into Dyskow 's office and discharged in the presence of Dyskow, Werner, and Wagner, and of the full AFL shop committee. According to undenied testimony of the General Counsel's witnesses, Dyskow charged that Roy had left the shop at 2:30 p.m. on the preceding Tuesday ( presumably to attend a CIO meeting called at Irene's Tap), and that Don had punched out his card for him at the regular quitting time. When the brothers denied the charges and offered to establish by witnesses that Roy had been present throughout the shift, Dyskow and/or Werner claimed that the FBI had checked the finger- prints on Roy's timecard and had established that Don had punched the card out. Werner also stated that he had already informed Waldow of the discharge, that the McMahons should take the matter up with the AFL and handle it as a grievance, and that the Company did not intend to listen to their arguments. Werner also stated that if he had a man on his committee who was a spy for the CIO, he would not want to have that man around but would get rid of him in a hurry. When Don denied the spying charge, Werner continued that he had "loyal men" re- porting to him and that , " We know what is going on as well as you do." As the McMahons and the committee left the office, they met Waldow and Kornberger, who were coming into the plant to organize for AFL the employees in the new machine shop (Shop No. 2). Waldow admitted that he had received advance information of Werner' s inten- tion to discharge the brothers , and when Don asked him what he was going to do about getting them reinstated , Waldow replied that he could not do anything , but would have to see Modell. The following day some 10 to 15 employees , including Krueger and some of the AFL com- mitteemen, went into Dyskow' s office, and each in turn verified the fact of Roy McMahon's presence on the job at the time he was supposed to have been absent . Dyskow simply listened to each explain in turn how he knew Roy was present, but made no comment himself other than to repeat his earlier claim that he had information that Roy had gone to the CIO meeting and that Donhadpq ached his card out. Neither Dyskow nor Werner testified concerning the reason for the McMahon' discharge, nor/did they testify in denial of Krueger's testimony, nor in denial of the testimony of the ,General Counsel' s several witnesses as to the occurrences at the actual discharge interview. The closest approach by either to the subject matter of the discharge was Werner's admission on cross-examination that he had not at any time procured a check of the fingerprints on the timecard and that any statement that he had done so was a falsehood . Nor did Respondent offer Dyskow's testimony or that of other witnesses in rebuttal of the testimony of the Gen- eral Counsel's witnesses as to the mass interview in Dyskow's office on June 5. In fact, Re- spondent offered no evidence on the subject of the McMahon discharges save for testimony of Mike Banaszak and George C. Bellin, as follows: Banaszak testified that he did not see Roy at his work station on the afternoon of May 29. His testimony was indefinite, however , as to the number of times he had passed through the department and as to the time of each tour . Furthermore , Banaszak testified that he did not report to Dyskow Roy's absence at any time prior to the discharge. Banaszak testified, how- ever, that on 3 earlier occasions during the month of May he had seen Don punch in Roy's card at the beginning of the shift and that on the last 2 occasions he had informed Don that each employee must punch his own card. Banaszak testified that the third occasion was on the morning of the 29th , and that he reported the fact to Dyskow the next day . Banaszak testified, however, that he had at no time reported to Dyskow that Don had punched out Roy's card, and specifically that he did not report to Dyskow that Don had punched it out on May 29. Bellin testified to a conversation with the McMahons at the time he handed them t heir final paychecks , but it furnished no support for any contention that Roy was not present on the afternoon in question or that Don had punched out his card . To the contrary, Don's explana- tion to Bellin was that he had been wrongly accused of punching out his brother's card. Revelant to the allegations of the complaint that the Respondent Union caused or attempted to cause the discharge of the McMahons was the testimony of Bernard Karns and Raymond Witz regarding their conversations with Handon on the afternoon of the discharge. Witz testified that he questioned Handon as to why the McMahons had been discharged and that Handon replied that he had them fired because they were stool pigeons and were supporting the CIO. Karns, to whom Witz had repeated Handon' s statement , testified that he sought corroboration from Handon and that Handon stated that he had gone in to see Dyskow and had WAGNER IRON WORKS 467 had the McMahons fired because they were undermining the AFL union . This mutually cor- roborative testimony is credited over Handon 's denials. 4. The layoff on the night shift Apparently due to the activities of Gould and Steffes and to the fact that there was normally less supervision on the night shift, the CIO membership drive made better progress on that shift than on the day shift. At a CIO meeting held on May 29, Chiakulas reported that the night shift was virtually signed up 100 percent with CIO, and in another meeting on May 31 he re- ported that 52 cards had been obtained on the night shift (of approximately 55 employees), and from 75 to 80 on the day shift (of approximately 160 employees). u On June 4 the Company terminated the employment of 22 night -shift employees (whose names are listed in Appendix A hereto), retained 20 others on the night shift, and transferred 13 to the day shift . The termination was effected by handing to each employee a notice which read, so far as pertinent , as follows: Due to curtailment of loader production, we find it necessary to reduce the strength of our night crew. Effective Tuesday, June 5, 1951, and until further notice, your services are no longer required. The contract contained seniority provisions which were applicable to a reduction in force. Thus it provided that new employees should be regarded as probationary employees for the first 60 days of their employment and might be laid off or discharged without reference to the length of service; but after the 60-day probationary period , employees acquired a seniority status according to their length of continuous service from the date of hiring . It provided further that in all cases of promotions, demotions , and increases or decreases in forces, employees should be given preference in accordance with their length of continuous service, subject to their relative ability to perform the work in question . There was no provision which limited seniority rights to the shift on which the employee worked, nor was there any limitation except that contained in the underscored portion of the preceding sentence. Seniority records of night-shift employees showed that 33 out of the 55 employees had ac- quired a seniority status and that 22 of them were still serving as probationary employees. Eleven of those who were terminated had acquired seniority status , though the Company re- tained 11 probationary employees Comparisons limited to employees who had acquired seniority status show that 5 were laid off who had greater seniority than 5 others who were retained Seniority records were not offered for day-shift employees, and it cannot be determined how marry of them were retained over night -shift employees who had greater seniority rights. It is clear , however, that the proportion of employees on the day shift without, or with slight, seniority was comparable to that on the night shift, since Dyskow conceded that as large a proportion of newly hired employees was placed on the day shift as on the night shift In any event , it is clear that the seniority provisions of the contract were disregarded. In fact, Dyskow admitted that he had arbitrarily fixed January 1, 1951, as the date from which seniority would be recognized Is because of his view that it had been difficult to procure qualified mechanics since that date and because he felt that those hired prior to that date had acquired sufficient experience to warrant retention. He testified that thereupon he and Schnuck collaborated in the selection of those to be terminated and those to be retained on the basis of their judgment of the ability of the mechanics. As justification for disregarding the contract provisions , the Company contended that it had obtained the approval of Local 471 for the layoff, and offered the testimony of Dyskow that he had called in the AFL committee: " I am sure I had them in the office and we talked to them and told them what we were going to do." (Emphasis supplied .) That testimony was weakened on cross -examination by Dyskow' s explanation that it was customary for him to go over lists of laid-off employees with union representatives and that he imagined he did so and that the AFL made no objection. Handon denied flatly that anyone with the Company conferred with him concerning the layoff or about who was to be laid off. He testified that Dyskow did not ask him to approve the layoff, nor ask him to get the Local' s approval , but simply informed him that it was being made. Dyskow' s testimony in its entirety is reconcilable with Handon 's, which is credited. i:Chiakulas made a similar report at a meeting on the evening of June 4, which Wayne Beck attended, but that announcement came after plans for the layoff had been completed. isWith the single exception of Jesus Moreno, who was hired October 3, 1950, and who was nevertheless selected for termination because of prior incidents of drinking on the job. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does the evidence support Dyskow' s claim that his selection was based on ability as between welders who had been hired subsequent to January 1. Indeed, he admitted (as did Werner) that there were also " a lot of poor welders on the day shift, " but that he terminated none of them. With specific reference to Arthur Ebbinger (who had acquired seniority status and who had been terminated ), Dyskow admitted that Ebbinger was a satisfactory employee and a qualified welder ; that he had so informed Ebbinger shortly before the layoff; and that he had also then raised Ebbinger to the maximum pay for a welder because he was a good worker. Dyskow was unable to explain why, under those circumstances , Ebbinger was not re- tained or offered a transfer to the day shift when , for example, Anthony Galaska and Joseph Lang, who were probationary employees , were retained. The significance of the Ebbinger comparison is emphasized by the Company's records, which showed that seven other welders, whose seniority exceeded Ebbinger 's and whose rates of pay were equal to or exceeded his, were similarly terminated . One such was Gordon Fuller, who testified , without denial, to his foreman's approval of his work and to the receipt of three separate wage increases after his employment on January 5, 1951 . There was testimony by other witnesses , also undenied , that Schnuck and Bartsch had praised the quality and the quantity of the work being turned out by the night -shift crew , and that Bartsch had stated that the worst welder on the night shift was better than those on the day shift . That testimony, plus a comparison of loader production on the day and night shifts for April and May, rebutted testimony of Dyskow and Werner that production on the night shift was spotty. The layoff was also effected in the face of the following facts, which were stipulated to: That since the fall of 1950 , there was and continued to be a shortage of production and maintenance personnel on both the day and the night shift ; that said personnel then totaled approximately 90 to 95 employees ; that it was increased to about 224 on March 1, 1951 , and that the Com- pany planned to continue such expansion until approximately October 1. 1951, at which time it desired to have approximately 531 production and maintenance employees ; that as of June 4, the Company was currently advertising , and continued to advertise, for employees for both day and night shifts , as welders and helpers , as well as for machine-shop personnel; that from June 4 to September 1, the company newly employed 61 welders, 3 learner welders, 5 be- ginner welders , and 56 helpers . One helper was hired June 4, and 2 on June 5 . Though no new employees were hired for the night shift from the inception of the strike (June 20) until August, new employees were hired for that shift from time to time , subsequent to August 1 and up to the hearing, including welders and beginning welders, a shear operator, and a punch-press operator . However, the nigh- shift at no time since the layoff exceeded 20 em- ployees. Harry Zbikowski testified , without denial, that in late July or early August 1951 he asked his foreman, Wotta, about a rumor that the Company was going to start a full night shift. Wotta replied that the night shift would be confined to a small crew because Dyskow said that if a full shift was put on " they might start up the CIO again." Zbikowski testified also that he discussed the same subject with Wotta on April 1 . 1952, and that Wotta again stated that Dyskow did not want to build up the night shift because of the CIO trouble and because if more employees were put on the night shift " they will want to build up the night shift into the CIO again." It is difficult to follow from the evidence the shifting bases on which the Company sought from time to time to explain and to justify the night -shift layoff. Its final defense, as stated in its brief, was that it was "justified by economic conditions and valid management policies contemplated for some time." But various reasons had been previously assigned . Thus, the termination notice had assigned as the reason the curtailment of loader production. At the June 6 conference with the CIO committee (more fully adverted to in the ensuing section hereof), Werner stated that the explanation was simply that the Company had a lot of poor welders who had to be replaced. On June 26 Werner testified in the representation hearing in Case No. 13-RC-2021 that the night- shift layoff was due to a shortage of materials for civilian production, and he repeated that explanation in his letter the next day to the hearing officer . Marshall, Company's counsel, similarly explained the layoff in his letter of October 5 to the Regional Office as being due to "an acute material shortage." However, it was stipulated at the hearing in the present case that in May 1951 the Company had adequate supplies on hand in the yard and in other storage places to meet the current and contemplated production needs of the Company. Though disclaiming direct support of either the cause assigned in the layoff notice or the cause assigned in the subsequent Werner - Marshall letters, the Company attempted oblique support through Werner's testimony . Thus, when referred to the phrasing of the layoff notices, Werner 'contended that it was not "exactly inaccurate ," but that it was a poor way of stating what was intended. Werner also admitted at one point that he did not lay off the night shift because of a shortage of materials , and that the following statement in Marshall's letter of October 5 was untrue: WAGNER IRON WORKS 469 It is true that on June 4, 1951, the Company suspended operations of its regular night shift because of an acute material shortage which necessitated the laying off of a number of workers. Despite that testimony and the stipulation that the Company had adequate supplies on hand to meet current and contemplated production needs, Werner attempted nevertheless to main- tain that there was a material shortage in view of the planned expansion program , advancing what he conceded to be a " complicated story" and a " complex picture of the material situa- tion." Thus, he testified that though NPA had granted relief in the way of increased steel allocations , the increase was inadequate to meet fully the needs of the plant expansion, and that , although materials on hand or on order were reasonably adequate to meet the existing production schedules , they were inadequate for the full extent of the planned production in the future. Werner testified further that it had been decided upon at a much earlier time that when the plant expansion program reached an appropriate stage , plant operations would be consolidated into a daytime operation with the exception of certain machinery for which space was not available on the day shift ; that the additional floor space provided for plant expansion would be utilized by increasing the day -shift operations and decreasing the night shift, because, among other reasons, such a move would entail less supervision and would avoid payment of a 10-cent shift differential. Furthermore , Werner testified , the employees laid off were in a less desirable work classification , there were some poor workmen on it who were scheduled to be dismissed in any event because of substandard work, and the night -shift crew commonly violated the rules of conduct , including drinking on the premises and the frequenting of tav- erns. The layoff was not attempted earlier, he explained , because there were certain me- chanics they wished to absorb in the day shift, and because space and facilities were not ready until June 4. Referred to the statement in his letter of Jute 27 to the hearing officer that the layoffs were because of a shortage of materials for civilian production , Werner testified that the complex system of controlling materials would have required a 30-page letter , and that he chose simply to refer to the material situation since the matter "didn't concern the National Labor Relations Board anyhow." Referred to his testimony in the representation hearing on June 26 to similar effect as his letter , Werner maintained that that testimony was true and correct, and explained that he had not then mentioned the reasons to which he had testified during the present hearing because he saw no reason to elaborate at the time on the very complex picture of the materials situation and because he did not "want to take all afternoon with a long story about materials which had no bearing on the hearing at all." Dyskow's testimony closely paralleled Werner ' s on this point that the decision to lay off the night shift was made months earlier and that Dyskow was to carry it out at such time, in his judgment, as the building expansion program should make available additional space for day- shift operations . Dyskow testified that he effected the layoff under that earlier authorization and without further consultation with Werner. However , Werner had testified at the representation hearing that the layoff was not planned, but that it resulted from existing uncertainties as to materials available for civilian produc- tion: Q And when did you plan this curtailment , this layoff rather- -I mean how far back of the date actually done? A. Well, it isn't planned. It happens by reason of the source of material supply, and we do not plan curtailments. Q, Well, you don't know what materials you are going to get in from day to day? A. You know that don't ... You know that you get your material and you have to plan from day to day, from week to week, these days. 5. The June 6 announcement ; the consent to the election ; the conference with the CIO committee On May 28 Chiakulas , international representative of UAW-CIO, had written Wagner noti- fying it that "the overwhelming majority" of its employees had designated UAW-CIO as their bargaining agent and requesting a meeting for recognition and negotiation . The letter referred to the fact that Local 471 had represented the employees in the past , but requested immediate recognition of CIO and that Wagner refrain from entering into any new agreement with AFL "until the matter of representation has been properly settled and the collective bargaining agent for your employees is determined ." On May 31 UAW-CIO had filed a representation petition with the Chicago Regional Office under Case No. 13-RC-2021. 283230 0 - 54 - 31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 11:30 a m. on June 6, the Company issued and released to its employees a lengthy announcement concerning its position in the campaign between AFL and CIO, which Werner first read to, and then mailed to , the employees . Briefly summarized the announcement was, so far as material, as follows: It referred to accusations from both sides that Wagner was favoring the other side. It stated that the Company' s position was one of neutrality , but that it must by law recognize the AFL as bargaining agent until the employees made a different choice ; and in that connection it referred to and quoted a letter from the Board to Local 471 dated May 23. That letter, from Field Examiner Mayberry , replying to an inquiry from Waldow of the same date , stated that the certification of the results of the union -authorization election held November 10, 1948, in Case No . 12-UA-3833 was still effective and that: In view of the fact that your union does not need a renewed certification before entering into a union-shop agreement with the Wagner Iron Works , it is not necessary to process further the petition you filed on April 25, 1951. Therefore I request that you submit to this office a withdrawal request of the petition. The announcement then referred to the possibility of an election to be held under Board supervision and to the fact that the winner of such an election would determine the bargaining agent of the employees , and continued. However , in the meantime , we suggest the ClOappoint a committee, and we will deal with both the CIO and AFL committees until the election [ Emphasis supplied. ] The announcement also answered a number of alleged false statements contained in CIO campaign literature, including CIO charges relating to the discharges , and concluded with the following paragraph Since this statement was released at 11: 30 a m. June 6, arrangements were made with the National Labor Relations Board to hold an election in the shop, between the hours of 3 p.m. and 5 p.m. on June 18. 1951 . At that time all of our eligible workers will be per- mitted to vote for whichever union they chose. On the afternoon of June 6 a conference was held in Werner's office between Werner, Dyskow, and McCarthy for the Company, and a CIO committee consisting of Clakulas, Gould, Steffes , the McMahons, and Bestul. The testimony as to the details of the discussions which ensued is in considerable conflict, though not so on the happenings which are of chief mate- riality to the issues herein. It is clear that the discussions, which were chiefly between Werner and Chiakulas, were conducted on a rough and at times violent basis, with loud language and shouting , and with frequent instances when the two chief participants, and sometimes others. were talking at the same time. The heat was generated mainly by Werner' s objections to the presence on the CIO committee of the four dischargees , discussions of the alleged causes of the discharges , and by Werner' s resentment of CIO's scheduling of a meeting during working hours the next day. The following resume represents a reconciliation mainly of the testimony of Chiakulas and Werner on the points which are of chief relevence to the issues herein, since the testimony of other participants is found to be without value in resolving the conflict. Werner stated that the purpose of the meeting was to inform the CIO representatives that he was prepared to deal with the CIO shop committee (as well as with AFL) concerning grievances pending the holding of the election. u Though the discussions veered into the con- 14 Though the morning announcement indicated that the Company was contemplating recog- nizing AFL and CIO on an equal basis, it was clear throughout the conference that the only recognition under consideration was for the handling of grievances. That understanding was explicit in Chiakulas' testimony, as well as from his later letter of June 9 to Werner, referred to infra. Though Werner testified that the afternoon conference was arranged by Field Examiner Cohen, he did not state for what purpose Cohen arranged, or could have arranged , the meeting; nor was any reference made during the conference to Cohen or to his having arranged the meeting Other testimony established that prior to the signing of the consent -election agree- ment that morning , Cohen had made repeated attempts , without success , to persuade Werner to meet with the CIO representatives regarding the consent to the election . On the entire evidence, it is found that Werner' s testimony related to Cohen' s efforts to arrange the earlier meeting , and that Werner held the afternoon meeting for the purpose of following through with his morning announcement to the employees. WAGNER IRON WORKS 471 troversial subjects above referred to, agreement was reached that Werner would recognize the CIO (through a shop committee to be forthwith appointed) for the handling of grievances for its members, provided authorization of such representation by the CIO was submitted by the grievors. No procedure was discussed or agreed upon for the actual processing of grievances, and no understanding was reached as to what action the Union would be entitled to take if griev- ances were not satisfactorily settled. Werner did, however, state his willingness to arbitrate the discharges of Gould, Steffes, and the McMahons, which had been subjects of discussion; but Chiakulas rejected the suggestion and stated that the Union had a right to strike in view of the Company's unfair labor practices, on which CIO had already filed charges with the Board. 15 There was reference also to the, layoff of the night shift and to the Company's continued advertising for men. Werner stated that the matter was explained by the simple fact that the Company had a lot of poor welders who had to be replaced, that it would continue to advertise, to replace poor men with good men, and to fire those who came in drunk. Werner also re- ferred to the fact that Don McMahon, who had been on the AFL committee the previous day, was appearing for the CIO, and stated that he had some men who were loyal to him and who were reporting back to him concerning the CIO.1s Pursuent to the understanding reached at the conference, Chiakulas wrote Werner on June 8, notifying him of the election of the CIO shop committee, and on June 9 Chiakulas wrote Werner referring further to the Company' s agreement to deal with CIO on grievances, and enclosed authorizations signed by Gould, Steffes, and the McMahons. 15 The CIO had filed a waiver of its charges in order to permit the Board to proceed with the election, and the consent agreement had been signed by the Company with that understanding. However , the discussion of the charges at the conference apprised Werner that CIO had not withdrawn its charges generally , though Werner pretended so to have understood in later withdrawing the Company' s consent to the election . See section 8, infra. A Though Chiakulas and Werner testified in great detail concerning the happenings at the conference , Respondent offered in evidence a wire recording , which Werner had secretly made, and a transcript which had been subsequently made by a court reporter . The exhibits were rejected as lacking proper foundation and authentication when the following facts were developed: Nine persons had attended the conference , most of whom had participated at some time in the discussions , though Chiakulas and Werner had done the great bulk of the talking. The only identification of the voices to the court reporter was made by Werner and by his secretary, Gertrude Jooss, the latter of whom was not present but had operated the mechanism from an adjoining office . At frequent points two and sometimes more persons were talking at the same time and were recorded simultaneously . The reporter neces- sarily transcribed a single speaker at a time, and did not indicate the instances where simultaneous recordings were made . In at least two places there were " whistles" or similar sounds which were indicia of a common variety of tampering (though nd evidence of actual tampering was offered ), and such sounds had blotted out possibly slight, but unknown, por- tions of the context . At other points , though the recording was inaudible to the reporter, he had accepted Werner ' s representations of what was said . Indeed, the reporter admitted that he would have been unable to identify the voices or to have prepared the transcript in the form as offered without Werner's assistance. That the recorder's performance was also faulty on other occasions was apparent from evidence that Werner had secretly used the device to record some of Swander 's pretrial interviews with employees in Werner's office and from Marshall's representations that, though he had not heard the recording , hewas informed that it was a very bad one. Marshall's representations that he had no connection with , and did not resort to the use of , that record- ing were accepted . However , the Board' s attention is called to the possible violation of Sec- tion 12 of the Act by Werner and others. Because company counsel strenuously reargues in his brief the admissibility of the rejected exhibits , the Examiner has carefully reconsidered his ruling. Though not persuaded that the ruling was in error , the Examiner has considered the possibility that it was , and in doing so has endeavored to determine whether, if erroneous, the rulingwas prejudicial to the Company. Considering the rejected exhibits as an offer of proof, and assuming for that purpose the reporter' s transcript to be a reasonably accurate transcript of the recording , he finds that the exhibits are not in substantial conflict with the above findings , made independently thereof, as to the happenings at the conference. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon receipt of those communications , Werner consulted and employed Marshall. and thereupon wrote Chiakulas under date of June 11 as follows: In view of the forthcoming election of representatives to be held on June 18 . 1951, and further in view of our presently existing contract with the A. F. of L., we have been ad- vised to defer any conferences until after the result of the election has been determined. Henry Wiza testified that in the meantime the newly elected CIO committee went into Dyskow's office on the morning of June 8, introduced themselves as the CIO committeemen, showed Dyskow a copy of Chiakulas' letter, and informed Dyskow that he could handle griev- ances with them. Wiza testified that thereafter Dyskow presented a grievance of his own concerning production and another concerning the quality of Ben Karn's work, and that the committee presented two grievances concerning Wayne Beck and his activities. Bestul and other witnesses corroborated Wiza' s testimony as to grievance meetings between the CIO committee and Dyskow subsequent to the June 6 conference. Indeed , Dyskow admitted knowing that CIO had appointed a shop committee and admitted that he conferred with various members of it, as many as 3 or 4 times, concerning "gripes" made by the committee and "gripes" which he in turn made to it. 6. Restraint of CIO; assistance and support to AFL The evidence here summarized relates to the period before the strike and most of it con- cerns the period after the consent -election agreement was signed on June 6, when AFL ac- tively entered the campaign for the purpose of retaining its adherents , procuring new mem- bers, and winning the election . In that campaign AFL had the full and open support of the Company. Thus Werner admitted that he actively and openly opposed the CIO, that he made no secret of the fact that he was doing so, and that after he consented to the election he set out to enlist AFL help so that it could beat CIO. Dyskow testified in turn that he felt that the Company was entitled to take sides in the campaign because of the fact that the AFL had the contract at the plant . With that example of the attitude of Respondent's management officials before them , it is not surprising that the Company's supervisors of lesser rank should be found actively opposing CIO and championing the cause of AFL. As early as May 26, Bartsch had interrogated Orville Ward concerning the identity of the employees who were handing out CIO cards , and on May 29 Wotta questioned a group of em- ployees concerning whether they had signed up for CIO, informing them that Dyskow wanted to know. On June 6 Banaszak and Schnuck at separate times questioned Erold Sasse as to whether he intended to join CIO. On June 9 Dyskow ordered Curtis Barbian (who had reported late) to remove his CIO insignia and to take the day off. On other occasions Banaszak ques- tioned employees about wearing CIO buttons and directed them to remove the insignia - in one instance under penalty of discharge . In several instances Banaszak also directed employees to remove CIO stickers onplant property or machinery, but permitted AFL stickers to remain. On at least some of the foregoing occasions Banaszak was wearing AFL insignia. Wotta simi- larly questioned Ervin Kusz on several occasions concerning his reasons for wearing CIO insignia and attempted to remove it from Kusz' clothing. Dobransky also joined in the question- ing of employees concerning their reasons for wearing CIO buttons and stated that no one wear- ing CIO buttons could work for him. Eugene Groh testified that on June 15 Beck pasted an AFL sticker near the water fountain in the presence and under the observation of Dyskow. Ramon Witz testified that Beck, on an occasion when Witz was wearing CIO insignia, ordered him to speed up his production to 6 tops, and that when Witz demurred that 4 tops were an average , Beck continued , "you will be making 6 tops before I am through with you . . . that's what you get for sticking up for the CIO." Raymond Pattenge testified that around June 16 Beck ordered him to remove a CIO button , and that when he refused , Beck struck him on the back, pasting a large AFL sticker on him. Arthur Golding testified that on June 12 Beck came to the new machine shop and questioned him about having "quit our union." Beck wore no special badge and carried no pass to get into the new shop , which was closely guarded for security reasons . Golding testi- fied further that Kornberger and Waldow were also admitted to that building for the purpose of organizing the men for AFL. Wiza testified that the day following Beck's solicitation of Shop 2 for AFL, he apprised Dyskow of the fact and sought comparable privileges for CIO. Dyskow denied the request for alleged security reasons. Handon engaged daily in the collection of dues and in the soliciting of membership for AFL on company time and property. He testified that he had complained to Dyskow that he "could WAGNER IRON WORKS 473 not do it alone," outside of working hours , and that Dyskow authorized him to take working time for those activities but "not to make it too long." Banaszak also informed Handon that he would give Handon all the support he needed and that Handon "shouldn't mind him," but should go around wherever he wished to collect dues or to solicit for AFL. There was testi- mony also (relevant to the CB case against , the Union), that Handon had threatened certain employees with discharge unless they paid up their AFL dues. Handon at first denied making such threats , then testified that the employees may have regarded his statements as threats, and finally admitted that he "might have made" some such statements. Handon and Beck and some of the AFL committeemen were permitted to pass out AFL literature and stickers both in the plant and at the gate on company time and were paid for that time. Waldow and Kornberger were permitted to go into Shop 2, the new machine shop, despite alleged security precautions, and to organize new employees for AFL. Waldow testified that shortly before June 6, Werner called him and suggested that Local 471 should get out some literature; that he later informed Werner the Local planned to do so and planned to mail the literature to the employees' homes; and he requested Werner to furnish the Local the names and addresses of all employees . Werner complied on June 6 and June 7. The Company was not content , however, to rely on AFL efforts or AFL literature. Thus, without the knowledge of AFL, the Company had printed a series of 21 anti-CIO handbills and had them distributed at the plant gate by a paid agent (not an employee of Wagner), who wore insignia indicating that he was a member of Local 471. The handbills similarly pre- tended to emanate from AFL, and in two cases Were also distriubted by AFL representatives. One of the series, which bore the caption , "Special Bulletin to Wagner Employees from AFL Headquarters ," was mailed by the Company to its employees in envelopes which did not disclose the identity of the sender. It is unnecessary to catalog the contents of the series of the handbills ; they were in the main violently anti -CIO and pro-AFL, and they strongly urged employees to continue their AFL affiliation and to reject CIO. Dyskow testified that he did nothing to end the distribution of literature within the plant during the early stages of the campaign, but that later he instructed the foreman ,to stop the whole thing and clean up the mess," after the campaign reached the stage where it was in- terfering with production through the plastering of stickers over the machines and when the wearing of numerous buttons by some of the employees gave them the appearance of clowning. Though under Dyskow' s testimony his order did not discriminate between CIO and AFL, the evidence does not establish that it was so intended or was so carried out. Thus, Dyskow ad- mitted feeling that AFL employees were entitled to wear their buttons in the plant because AFL had the contract, and testified that he had in fact suggested to Handon that the AFL mem- bers should wear their buttons tooffset the prevalence of CIO buttons. Furthermore , Banaszak, Beck , and other foremen were permitted openly to wear AFL insignia while ordering em- ployees to remove CIO stickers from plant property and machinery while permitting AFL stickers to remain. Waldow and Kornberger testified to an occasion (fixed by Werner as prior to the time he withdrew from the election) on which Werner called their attention to a CIO meeting to be held the next night and suggested that Local 471 should get together some 50 ironworkers to go in and break up the meeting , and that Werner promised to take care of all damages from the'breaking of furniture or otherwise, regardless of what happened. They testified further that on the first day of the strike, Werner called Local 471 and asked that the union assemble a group of 50 ironworkers to break up the strike , not only by working in the plant, but by coming there when the CIO picket line was at the gate and by starting a fight and breaking up the picket line so that other employees could get in to work. Werner did not substantially dispute the Waldow- Korberger testimony concerning the above incidents . Thus. Werner admitted that he had suggested that they send their members to the CIO meetings to protest against CIO tactics and vilification of AFL members, and that he promised that if the meeting broke up in a fight, and if furniture and tables were broken, he would foot the bill. Werner also admitted that on the first day of the strike he requested the Local to send him 50 men to work in the shop; that he suggested that it have an "equal number of men" in front of the plant so as to permit employees , who wished , to come in to work; and that it was "very probable" that he had again promised to foot the bill if there was any alter- cation. Since Werner's testimony affords no substantial contradiction, the mutually corrob- orative testimony of Waldow and Korberger is credited. 7. Miscellaneous items of interference and discrimination Summarized here for convenience are a number of miscellaneous items and incidents which are charged by the General Counsel to constitute either interference , restraint, and coercion, or discrimination , and which do not fall readily under other sections of this report. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company had for some years used a form of application for employment which con- tained a b" line on which applicants were to specify their union affiliation. The contract between the company and Local 471 contained a union-security clause (quoted at sectiori'a; 3, f, i r which the General Counsel contends was invalid. The complaint alleged that Dyskow, about the second week in June, promised and granted employees -inedical' services and doctor's care upon the condition that they remove their CIO buttons. No evidence was offered which would establish that allegation. The General Counsel offered the "testimony ' of several witnesses which in certain of its aspects indicated that there was some difference in the medical services furnished by the Company before and after the advent of CIO, but there was no evidence that membership in CIO was the determining factor. Indeed, the testimony of Gregory Salazar, which was the closest to the mark, indicated that the difference in his case was due to the question of the Company's insurance coverage The complaint also alleged that Werner intimidated employees by threatening to and attempting to run them down with an automobile while they were picketing at the plant during the strike. Testimony by several witnesses established that early on the morning of June 20, the first day of the strike, Werner approached the plant in his car at a rapid rate, and That, without substantially slackening his speed, he started to turn into the plant entrance, which was being picketed by a line of pickets in oval formation. Werner applied his brakes suddenly, leaving skid marks on the pavement, and the pickets who were in the path of the car jumped aside. The car was brought to a stop without striking anyone, though some of the pickets might have been struck if they had not jumped. No word was spoken by Werner or by the pickets; however, Frank Smejkel complained to•the police, whowere present on both sides of the side- walk at the time. " T The complaint also alleges the discriminatory discharge of Frank Smejkel on June 19 Smejkel had been hired on May 7, 1951, ow the night shift but was transferred to the day shift at the time of the June 4 layoff. He had attended the CIO meeting on June 4 (which Wayne Beck had also -attended), had then joined the CIO, and had made statements during the meeting critical of AFL and complimentary to CIO. Smejkel testified that on June 19 Beck, who was then foreman, directed him to count the tops he was producing, and that Beck returned later and inquired whether Smejkel had com- plied. Smejkel replied, "When four o'clock comes and you are supposed to come and check up, you come back and I'll tell you how many I put out." Smejkel's testimony continued: He says "Don't you like the way I'm handling things here? And I said "No." He says "If you don't like it you can get the hell out of here." I said, "Okay, get my check and I'll get out." So he says "You stay right Here," and he went in the office and about five minutes later he come back and said "You can go over and get your check." Smejkel was then called in by Schnuck, who asked him what the trouble was. Smejkel told Schnuck what had happened, and Schnuck then called in Beck, who'atated, "Well, you know the CIO lost and they can't'bargain, and Frank is mad about it." Smejkel's testimony continued: I got up then and I says "Listen, you tell the truth or I' m going to hit you. That was a lie, I wasn't mad or anything." Then Tom Schnuck said "that's enough, you can go in the office and get your check." Respondent did not call either Beck or Schnuck to testify. On February 7,- 1952, Chiakulas had summoned by letter several Wagner employees to appeal` at the offices , of UAW-CIO in downtown Milwaukee for interviews by the General Cbiihsel' s`representatives . Around 7:45 p m , and before any of them appeared , Chiakulas left the offices= and crossed the street to enter a restaurant in an office building. As he approached the lobby entrance , he observed Wayne Beck standing in the doorway with a piece of paper in his hand and a pencil tucked under his hat. Chiakulas accused Beck of spying on union activities and inquired what he was doing there. Beck replied , " That' s my business, " and did not ex- pressly deny the spying charge , although he added that he was waiting for or expecting some people. An altercation ensued during which Chuakulas assaulted Beck' and following which Beck called both Werner and the police. The following evidence is relevant to the case against the Respondent Union: Shortly after June 15, 1951, Handon ordered Eugene Groh to remove a CIO sticker from his shirt , and when Groh refused , Handon attempted to rip it off, stating that Groh had no right to wear it because the shop was an AFL shop. On June 3, 1951, Waldow made the threat to Raymond Pattenge that he would have the Company fire Pattenge unless he paid up his AFL dues in full. WAGNER IRON WORKS 475 8. The Company withdraws from the election; the strike; the discharge letter and other strike incidents Modell had taken an active part in the election campaign on behalf of Local 471. He testified that he became convinced by June 14 that it was doubtful that AFL could win the election, that it "had a good chance to lose," and that he was therefore anxious to do anything he could to stop the election. Having observed the denial in a CIO bulletin that its charges against the Company had been dropped, Modell called Werner, told him it was his understanding that when a consent election was agreed upon all charges of unfair labor practices were dropped, that he did not want the election to go ahead, and that he was hoping that Werner could find some- thing to do about it. Modell denied that he specifically informed Werner of his doubts con- cerning the outcome of the election, but testified that it was obvious what his opinion was when he "contacted the Company to try to have the thing held up a little bit." Werner replied that he also had understood that the unfair labor practices had been dropped and that he was going to check into the matter. Werner's testimony was not in substantial conflict withModell's, which is credited. Werner testified that on June 15 he sent a telegram to the Board's Regional Office withdrawing from the election and that prior thereto on the same day he called Regional Director Madden and informed him that- I told Mr. Madden also that our men were being threatened by the CIO, and that they were being threatened that if they didn't vote in favor of the CIO they would receive harm and injury, and under those circumstances I would not permit the election to proceed.... ...my signature to the consent agreement was obtained under a different set of cir- cumstances than I was advised of and that -because of the fraudulent statements that were being circulated we were withdrawing our consent to the election. I told him that my sig- nature on the agreement was obtained when Mr. Cohen told me that the charges which were filed at that time, prior to that time, by the CIO, were being waived and I found out later that that was not the case, that they were not being waived.... Werner testified that the fraudulent statements he referred to in his conversation with Madden were those that the CIO charges had been waived when in fact they were not being waived; and that he also informed Madden that the Company would not provide facilities for the election, that if it were held the Company would not be bound by its results, and that it was withdrawing its consent to the election. On June 15, Madden wired the Company as follows: In re Case No. 13-RC-2021 I have been verbally advised by A. J. Werner, vice presi- dent of your company, that the company desires to withdraw its consent to the agreement for consent election herein executed on June 6, 1951, for the reason that the unfair labor practice charges previously filed against the company have not been withdrawn. Since these unfair labor practice charges have been properly waived, I do not deem your reason to be sufficient grounds for my approving your request. However since I have been in- formed also that the company will not make available the facilities agreed upon in said consent election agreement. I am approving the company's request to withdraw its con- sent from the agreement. You are hereby notified that the election as scheduled will not be conducted. You are requested to post this telegram in your plant. Werner denied that Madden's telegram stated correctly the substance of the conversation between them, and testified that he did not order it to be,pogted. On June 16, however, there was posted on Respondent's bulletin board the following notice, dictated by Werner and signed by Wagner Iron Works: Because we object to the fraudulent statements being made in the election campaign con- cerning the National Labor Relations Board election, we have withdrawn our consent to have an election. There will be no election on June 18, 1951. We expect to have a meeting with the NLRB in near future and will advise you of further developments. We have been officially advised by telegram NLRB election scheduled for Monday, June 18, 1951, will not be held. When cross-examined on his claim that he had assigned to Madden alleged CIO threats as part of the basis for withdrawing from the election, Werner gave conflicting testimony as to the number, nature, and form of reports which he had allegedly received. At one point he 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claimed the reports were in affidavit form , at another that they were in writing but not reduced to affidavits , and at another that they were verbal reports which he directed Dyskow to have reduced to writing and later to affidavit form From Dyskow's testimony , it appeared that though ultimately he procured about 11 affidavits, not over 3 of them concerned incidents which had occurred prior to June 15. What is of greater significance is that Madden' s telegram of June 15 , reporting the substance of Werner' s call, made no mention of alleged CIO threats reported by Werner , and that Werner' s posted notice to employees similarly did not mention such threats , assigning only the Company ' s objection to- fraudulent statements ," i. e., those relating to the alleged waiver of unfair labor practice charges . It was clear , however , from the discussion of the charges in the June 6 conference, which followed on the heels of the signing of the consent -election agreement , that Werner well understood that CIO had not dropped its charges by waiving them so that the Board might pro- ceed with the election . In view of all the circumstances , Werner' s testimony is not credited that he assigned to Madden alleged CIO threats as one of the reasons for withdrawing from the election, but that such reason was one which was later advanced in a belated attempt to bolster his withdrawal from the election. CIO did not receive notice of the Company ' s withdrawal from the election until Monday, June 18. On Tuesday it distributed a handbill calling a meeting at Irene ' s Tap "to vote on what action we will take against the Company for their actions and their unfair labor practices." At that meeting the employees voted unanimously to go on strike. `Many witnesses testified as to their reasons for striking ; and although the reasons varied in individual cases, those most commonly stated were: The discharges of Gould , Steffes , the McMahons , and the 22 employees on the night shift ; the Company' s showing of preference for and support of AFL through its foremen and supervisors , including the permitting of distribution of AFL literature and the activities of Wayne Beck; the Company' s withdrawal from the consent election ; and the Com- pany's withdrawal from its agreement to recognize the CIO shop committee for grievances pending the holding of the election. A picket line was set up on the morning of June 20 , and was maintained through June 26. Werner testified that Modell, Waldow, and Kornberger came to the plant on the afternoon of the 20th , that he referred them to the no-strike clause of the contract , reminded them that no grievances had been submitted for arbitration , and asked them to send out notices as provided in the contract. After a meeting of its executive board, Local 471 issued , posted , and mailed to the striking employees a notice dated June 20 in the form prescribed in the contract (see Ap- pendix C) that their action was unauthorized and ordered them to return to work. On June 22 or 23 , the Company mailed to all striking employees the following letter, which was dated June 22. Pursuant to Section 15 of our contract with the International Association of Bridge, Structural , and Ornamental Iron Workers Union, Local No. 471, you have been notified by Local 471 that the Strike action was unauthorized by both the Local and the International Union, and that such strike is contrary to the non-strike provision of our existing col- lective bargaining agreement. You were directed to promptly return to your job and to cease any action which may have affected our production . You were further notified that if conditions did not return to normal immediately , the Union deemed the company justified in permanently replacing you with new employees. Therefore, pursuant to the terms of our collective bargaining agreement , you are hereby notified that your employment with this company is terminated. During the strike the Company increased to $50 its bonus payment (formerly $ 10) which it paid to employees for bringing in new , acceptable employees to the plant . About 13 employees were paid the increased bonus for so doing. During the strike employees who continued to work were paid 10 hours ' pay for 9 hours work. Werner testified that he directed the increased payment because of " the Inconvenience" to the working employees in getting into and out of the plant, and that the payments were actually continued , through oversight or disregard of his orders , for about a week beyond the end of the strike. Robert Christie, an affiliate of Local No. 8 of the Bridge and Structural Workers Union, testified that shortly after the inception of the strike there was posted in the union hall of Local 8 an order from Wagner Iron Works for around 110 men at the union scale of $2.64 per hour. Because his own job was not in progress at the time, Christie went to the Wagner plant and was interviewed and hired by Dyskow . Christie testified that he received the union scale of $2.64 for the duration of the strike and that he got double that rate for Saturday work and for all other overtime hours. WAGNER IRON WORKS 477 From stipulations and from excerpts of the Company's payroll records, it appeared that Christie worked on June 22, 23, 25, 26, 27, 28, and 29; that for the pay period ending June 23, he worked 11.4 hours and was paid regular pay of $14.52 and overtime pay of $31. 55, totaling $45.67; and that for the pay period ending June 30, he worked 50 hours, for which he was paid $105.60 regular pay and $ 52.80 overtime pay, totaling $158.40. Stipulations and records also establish that Don Dawson, James Dreblow, John Dreblow, Neil Kersten, and John Leslie worked during the same approximate period as Christie, for roughly the same number of hours, and received compensation at comparable rates . None of them was employed at any time be- fore or after the strike. On July 6, the Company made a general wage increase of 10 cents per hour. 9 The strike is ended; application for and denial of reinstatement; the constructive discharges On the evening of June 26 , following a hearing in the representation case, CIO held a meeting of its membership at which it was voted to end the strike and to make an unconditional offer of reinstatement. The CIO shop committee, with Henry Wiza as chairman and chief steward, was selected to make the demand on behalf of all of the strikers. The committee called upon Dyskow the next morning , accompanied by a large number of the strikers , who waited outside the plant entrance Wiza, who acted as spokesman, informed Dyskow that he was making an unconditional offer to return to work on behalf of the committee and of all employees who were out on strike. Dyskow inquired if Wiza had received the letter (of June 22) from the Company, and when Wiza acknowledged that he had, Dyskow replied, "That is it." As Wiza passed out, going by the time clock, his attention was called to the fact that the timecards for some of the strikers had not been pulled from the rack and he returned to Dyskow's office to inquire the reason. Dyskow states that he would interview the men individually and would take individual applications for reinstatement. Thereupon the strikers lined up and were interviewed in Dyskow's office one at a time. In most cases Dyskow asked each employee whether he had received the Company's letter, and if the answer was in the affirmative, he told the employee in effect to abide by the letter, that is, he was discharged. In some instances, however, Dyskow put the employees to work without questioning them about receipt of the letter or about their participation in the strike. In other instances , having confirmed receipt of the letter, Dyskow questioned employees about their participation in the strike In all cases where the employees explained their failure to come in to work on the basis of their objections to crossing a picket line, Dyskow reinstated them. Dyskow similarly reinstated others whose limited participation in strike activities was apparently satisfactory to him. In still other instances, after Dyskow confirmed receipt of the termination letter, he in- formed the employees they could return to work but would have to sign new applications as new employees and would lose their seniority rights. Four of those exceptional cases con- cerned David Horgan, Ervin Kusz, Wesley Bajanen, and Alexis Sobczak, who are alleged by the complaint to have been constructively discharged on various dates subsequent to their reinstatement. The circumstances in the four cases are substantially the same, and the facts are not in substantial dispute. None of the four men had worked during the strike, some had participated in the picketing and some had not. Dyskow questioned all of them, to some extent, about why they had parti- cipated in the strike, and each gave varying reasons for having done so. All were told that they were being reinstated , but that they would have to sign applications as new employees However, all except Horgan were permitted to go to work without signing a new application,17 and after some days on the job were informed that they must sign the new applications in order to continue working. All refused, stating that they were quitting. Dyskow could not recall his interview with Horgan, but admitted that he required new appli- cations of the other three men (and possibly of other employees) as a condition to reinstating them, and that he did so in the hope that they would quit. He admitted that Kusz, Bajanen, and Sobczak were good mechanics, but testified that shortly after taking them back, he felt that he had made a mistake in doing so, and that he then insisted on the new applications to inspire them to quit. Dyskow testified that he imposed no such conditions on other strikers because they were good workers whom he was anxious to get back to work and keep as employees. On the basis of the testimony of the four employees and of the Company's records, it is found that their discharges occurred on the following dates: David Horgan, July 2; Ervin Kusz, July 3; Wesley Bajanen, July 3; and Alexis Sobczak, July 7. 17 Horgan , who had applied on June 29, was directed to report for work on Monday, July 2; and when he did so, Dyskow insisted on the new application as a condition to reinstatement. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Though additional variations occurred from the normal course of the reinstatement inter- views, they need not be summarized in detail. However, the case of the Fecteaus (father and son) is of considerable significance. Dyskow first interviewed Gilbert, the son, and after indicating that Gilbert might return to work, Dyskow inquired whether he wanted to remove two CIO campaign buttons which he was wearing When Gilbert refused, Dyskow stated, "Well, suppose we abide by the letter." Dyskow also informed William, the father, that he could return, but that there was to be no wearing of CIO buttons. William promised to talk with his son regarding what had happened during the earlier interview , and to report the next morning with a decision . Both Fecteaus reported to work the next day, without CIO buttons, and were put to work. Dyskow's testimony was in substantial accord. Indeed, he admitted telling the Fecteaus that he did not want any more wearing of CIO buttons in the plant, and that "we were rid of it and we'd like to keep it that way." He admitted also having told William, ". . . for heaven's sake don't start campaigning again... if you wear buttons it's all going to start over again. I don't want you to wear buttons until a time which would be proper." On further examination, Dyskow explained that he considered a "proper time " to be after the union had been recog- nized in the shop, and that it was all right for employees to wear AFL buttons because AFL was the recognized representative of the employees. 10. Continued recognition and support of AFL Though the contract with Local 471 expired on June 30, the Company continued to recognize that Union as the representative of the employees and to negotiate with Handon and the shop committee not only on grievances, but also on matters concerning wages, hours, and working conditions. Indeed, Werner admitted that until the formation of the Temporary Committee in January 1952, he continued to recognize the same AFL committee as the representative of all the employees and continued to settle grievances with it under the provisions of the old con- tract. The Company also otherwise continued its program of assistance and support to AFL. Thus, Handon (chief steward until December 1951) was permitted to continue, as before the strike, the collection of dues and the solicitation of membership on company time and property. is Michael Keuziak (who was an AFL committeeman) testified , without denial, that in September or October Werner mentioned to him Werner's understanding that the AFL was having diffi- culty collecting dues and inquired whether the Union would be interested in a checkoff of dues and in negotiating with management thereon . Keuziak responded that the Union was always in favor of a checkoff, and Werner requested Keuziakto have Handon get in touch with the Union's executive board and have it contact Werner about the subject. Keuziak testified, however, that he heard no more about the matter He testified also that the Union had made attempts to procure a checkoff provision in earlier contracts with the Company, but without success. In August, the Company had begun the publication of a newspaper, known first as The Wagner Ironworker and later as The Wagner Ironews. Werner testified that the editorial staff was selected so as to get a representative group from the various shops and departments; that in some instances the persons themselves volunteered to contribute and to be responsible for the information that was received ; and that the employees were permitted to do work for the newspaper on company time at their regular rates of pay . Werner admitted that he proofread the various articles printed in the newspaper before they went to press and approved them for publication. He specifically admitted having proofread an article which appeared in the issue of November 1951 entitled "Information about Union Activities in Our Shop," and which contained among other things the following paragraph The Government through the NLRB is investigating all the charges and will decide if and when an election is to be held Until then the AFL will represent the men and the old contract will be the basis for settling grievances [ Emphasis supplied.) Keuziak testified that he had prepared the above article at Dyskow ' s suggestion , and that Dyskow suggested several ideas for his consideration. Keuziak testified that though he dis- regarded Dyskow's ideas , Werner later called him in and suggested that he incorporate three additions which Werner had prepared . Keuziak replied that since the draft was supposed to represent the Union' s position, he should first consult the shop committee . Keuziak and Handon then submitted the draft, with-Werner 's additions , to each of the committeemen and to Dyskow , and each approved it. The article was thereupon published in the November issue is There was also credited testimony that Handon continued to threaten employees with discharge unless they paid dues to AFL WAGNER IRON WORKS 479 over the signature of The Shop Committee." It is unnecessary to summarize in detail the contents of the rather lengthy article; it suffices to state that its general tone, though less violent, resembled that of the campaign literature , and that it was emphatically favorable to AFL and unfavorable to CIO, particularly the additions prepared by Werner. 11. The Temporary Committee is formed Richard Willing and Keuziak, who had served on the AFL shop committee continuously, testified that in January 1952 Werner called the committee into a conference and suggested the formation of an independent union. Willing testified that Werner stated he knew that the Local was having trouble holding its members , in collecting dues, and in getting new mem- bers, and that he suggested that an independent union could probably set up a temporary committee and get a temporary agreement with the company. Werner also pointed out a number of benefits to be derived by such an arrangement , i. e., that the independent union could collect dues from the men and could have a treasury of its own. Keuziak's testimony was in substantial accord. Werner's testimony that the suggestion of a temporary committee emanated from Keuziak, acting as spokesman of the AFL committee, is not credited. The AFL committee decided that the Company' s suggestion should be accepted , but that it should be first submitted to the employees. They requested and received permission to hold a meeting on company time and property, to prepare and post announcements in the plant, and to announce the meeting also over the plant loudspeaker , which was not used for em- ployee announcements . The posted announcements were actually typewritten or mimeographed in the Company' s office. Except for Dyskow, all plant supervisors and foremen attended the meeting . Keuziak presided and Danecki, an AFL committeeman , also spoke. They informed the employees what Werner had previously told the committee , referred to the increasing failure by the employees to pay dues to AFL. to employee dissatisfaction concerning the absence of a contract , and stated that the committee through its talks with management had the im- pression that if " a representative group" were formed , management would be willing to negotiate with it. The employees were informed that another meeting would be held after they had an opportunity to talk the suggestion over among themselves. Arrangements with management for announcing and holding the later meeting were the same as before. Additional arrangements were made for holding an election on company time and for use of company property as election equipment . The company itself mimeo- graphed the ballots which read as follows: ARE YOU WILLING TO NEGOTIATE A TEMPORARY AGREEMENT WITH THE COMPANY UNTIL SUCH TIME THAT THE CHARGES INVOLVING THE AFL, CIO, AND THE COMPANY ARE SETTLED IN WASHINGTON? YES 0 NO q The eligibility list for voters was also obtained from the office. It included all employees of the shop and all supervisors , with the possible exception of Dyskow ; and the supervisors were actually permitted to vote , although they did not attend the second meeting or partici- pate in the discussions which preceded the actual balloting. The balloting resulted in a vote of approximately 4 to 1 in favor of negotiating a temporary agreement. The management committee i9 was notified of the results and arrangements were made with it, as before, for the announcing and holding of another meeting in the plant cafeteria on the following Sunday for the election of a temporary committee. None of the supervisors attended the Sunday meeting . An admittedly accurate account of that meeting, approved by Werner , was published in the February issue of the Ironews, as follows: NEW COMMITTEEMEN AND STEWARDS ELECTED Five committeemen and two stewards were elected to the interim cd35tmittee by the employees of the Wagner Iron Works in an election Sunday morning , Jan. 27. The group will represent the workers in the forthcoming negotiations for a teni&rary agreement with the company. Robert Bogardus was chosen by the committeemen as the chief day steward while William Walkowski will hold the same position for the night shift . fiotfr are from Shop 19 Following the election, Werner appointed a management committee and delegated to it his former function of handling labor relations. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two. Committeemen from the same building are Allen Krause and Paul Kutrovich. Bogardus also is chairman and will present the new agreement that is to be okayed by the workers. Shop One representatives are Ervin Hansen , Peter Mishka, and Jospeh Garrella. Since the factory's representatives asked that there be only five members on the bar- gaining committee , it will be necessary for the workers ' delegates to rotate their attendance at successive meetings. The management' s representatives are Chauncy Hart , Works Manager ; O. E. Jacobsen, Chief Engineer ; James Dean , Loader Sales Manager ; and Joseph Dyskow, Shop One Superintendent . (Emphasis supplied.) Despite the clear understanding of the purpose of the Temporary Committee , the man- agement committee took the position that the committee was not a permanent organization and refused to negotiate with it for a contract until it was certified by the Board . Never- theless, pending the subsequent organization of the Independent Union , the management committee recognized the Temporary Committee as the representative of the employees and negotiated with it, not only concerning grievances, but also concerning wages and con- ditions of employment. Thus. Bogardus testified that " a little labor trouble" arose over the Company' s awarding of merit raises , that the Temporary Committee negotiated with the management committee concerning the subject , and as a result the Company made certain adjustments in its merit raise plan. The management committee in turn called in the Temporary Committee in con- nection with the Company' s proposed profit -sharing plan and held with it a series of meetings in which extensive discussions and negotiations were carried on. Various objections were voiced by the Temporary Committee on behalf of the employees and various suggestions were made , including one that the Company grant a straight -out wage increase. As a result, the management committee offered to make certain changes and amendments in the plan, including abolishment of a compulsory feature and including a wage increase of 21 percent to cover the cost of the proposed employee contribution to the fund. However, no final agreement was reached , and the plan has not been put into effect. 12. The Independent Union is organized During the pendency of the negotiations concerning the profit-sharing plan , the Temporary Committee had proceeded with plans to establish a permanent organization in the form of an independent union . The committee met in the plant cafeteria after working hours , decided on a name for the union , I. e., The Employees' Independent Union of Wagner Iron Works, decided that the employees should be canvassed and pledge cards obtained , and that a formal organization meeting should be announced . It was also decided to consult Attorney Stephen Scherba ; and Scherba later advised the committee that it should first stop holding meetings on company time and property. Announcement of the organization meeting, set for some 2 weeks ahead , was made by the posting of circulars on plant bulletin boards and elsewhere around Shops 1 and 2. E0 In the meantime, a drive was conducted within the plant to obtain signatures to pledge cards. The organization meeting was held at Irene's Tap, with Bogardus presiding. Bogardus explained that a permanent organization was necessary, and a certification by the Board, before the Company would bargain for a contract ; that there were several matters the employees could get clarified with the Company , such as the profit -sharing plan and the drawing up of a contract ; that a permanent organization would need money to operate on, I. e., membership dues ; that bylaws were necessary ; and that permanent officers should be elected . No issue was submitted to a vote because, Bogardus testified , it had been under- stood at the time of the original meeting when the Temporary Committee was elected that the employees were in favor of an independent union and had voted for it then . The members of the Temporary Committee were thereupon elected by acclamation as officers of the in- dependent Union. Thereafter, to a date as late as May 13, 1952, the Company dealt with committees of the Independent Union on the same basis as formerly with the Temporary Committee. Those 20 Though Bogardus testified that he did not request permission to post those notices, Krause testified that management permitted them to remain posted over the period of ap- proximately 2 weeks. WAGNER IRON WORKS 481 negotiations were with both the grievance committee and the bargaining committee;n and covered such grievances and conditions of employment as the profit-sharing plan, the procural of milk by employees in Shop 2, the sale of safety shoes to employees (sponsored by the Company) and payment therefor by payroll deductions , the organization of an em- ployee safety committee, and various unsafe conditions and hazards around the plant which the committees wished to have remedied or eliminated. The Independent Union also held two membership meetings, subsequent to the formal organization meeting , announcement of which was made, as before, by the posting of notices on plant bulletin boards and at other places in Shops 1 and 2. Also in the meantime, on March 3 , 1952, the Independent filed its representation petition (prepared by Scherba) under Case No. 13-RC-2551 , in which it was stated, among other things , that requests for recognition had been made on February 13 and February 28. B. Concluding findings - Cases 13-CA-849 and 13-CA-864 The evidence summarized above discloses in its entirety , and it is,hereby found , that upon learning of the UAW-CIO activities among its employees , the Company immediately em- barked upon a planned and continuous course of conduct which was designed (1) to interfere with, restrain , and coerce its employees from engaging in those activities, (2) to discrimi- nate against its employees because thereof, and (3) to interfere with, assist, support , foster, and dominate the competing AFL Local and, subsequently , the Temporary Committee and the Independent Union . The nature of the Company's campaign was most clearly disclosed by its open assistance to and support and sponsorship of AFL in the competing membership and election drives , in its subsequent continuing recognition of and support and assistance to AFL from July through December' 1951, and its later sponsorship , assistance and support to, and recognition of the Temporary Committee and the Independent Union . Hardly less revealing of Respondent ' s purpose to defeat the CIO was the overwhelming evidence of the continuing series of coercive acts and statements and of the discharges of leaders or sus- pected leaders of the CIO activities. Though it must be found, therefore, that , in broad outline, the General Counsel's case of assistance and domination , of discrimination, and of interference and coercion, was estab- lished by the overwhelming preponderance of the evidence , yet this is not true of all the specific acts and incidents which were included in the complaint and -litigated at the hearing. Furthermore, it is appropriate and necessary that specific findings be made as to acts which constituted, as well as to those which did not constitute , unfair labor practices within the meaning of the Act., A further word, however , before proceeding to the consideration of the particular types of unfair labor practices which are presented by the evidence . Because of the Company's continuous campaign and course of conduct, which was so plainly dedicated to the defeat of CIO, single acts or statements are not to be considered as having occurred in isolation or as unrelated to others , but must be viewed instead in relation to the total congeries of the facts which they make up and comprise and which disclose unmistakably the true nature of the Company' s conduct. The findings which follow have been made in that light, being based on the preponderance of the evidence on the record as a whole . They are arranged according to the three main types of unfair labor practices with which the Company is charged, reserving for final consideration the subject of discrimination , which presents the most difficult issues, both factual and legal , that are involved in the case. 1. Assistance, support, and domination Despite the existence of the contract with AFL, a question concerning representation was pending throughout practically the entire period of the Company's anti-CIO, pro-AFL, activities;n and by entering into the consent-election agreement , the Company recognized is Krause and Bogardus agreed that prior to the time the bargaining committee was elected, the grievance committee had acted both as a grievance committee and as a bargaining com- mittee. Bogardus also testified that for a period of time the committee was acting both as the Temporary Committee and for the Independent Union, because of certain organizational difficulties encountered in Shop 1. ttThus on April 5 Local 471 gave notice reopening the contract; on May 28 UAW-CIO claimed majority representation , and on May 31 filed its representation petition. On June 6 the Company , AFL, and CIO signed the agreement for a consent election. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conceded the existence of such a question , which was solely within the Board's pre- rogatives to investigate and determine . International Harvester Company , 87 NLRB 1123, 1127. During such a period the statute dictates that employees be free of employer interference in exercising their franchise to resolve the representation question and that the employer refrain from disparate treatment of the competing unions . For it is consistently held that an employer must maintain strict neutrality when his employees are simultaneously being organized by two or more labor organizations . Harrison Sheet Steel Company v. N.L.RB., 194 F. 2d 407 (C. A. 7), and cases cited; Hoover Co. v. N.L.R.B., 191 F. 2d 380, 386 (C. A. 6); Corning Glass Works , 100 NLRB 444; Sunbeam Corporation, 99 NLRB 546, and cases cited. In such cases conduct showing favoritism for one of the competing unions defeats the congressional purpose of affording complete freedom to employees in the selection of their bargaining representative. But the present case is not merely one where the employer violated its neutrality obli- gation by a simple showing of favoritism , or by an active championing of 1 of 2 competing unions, without overt promises of benefit to employees who joined or adhered to the favored union and without overt threats against employees who joined the opposed union. Cf. Corning Glass Works , supra , and cases cited . Instead the evidence disclosed a flagrant case of threats and promises, of disparate treatment , and of actual discrimination against em- ployees, designed to compel them to retain the incumbent AFL as their bargaining repre- sentative. First , it was plain that from the inception of the election campaign the Company, both openly and covertly, gave AFL its full support and assistance. Secondly , it was obvious from Werner' s admissions and from other undisputed evidence that Werner deliberately sought out and enlisted AFL's help to beat the CIO, that it was Werner who prodded the AFL into action , and that he suggested to it and counseled it in various courses of action, with promises of indemnity in some cases . When Modell , in turn, suggested that AFL did not want the election held and that Werner find something to do about it, Werner quickly reneged on his consent agreement , assigning the specious claim, suggested by Modell , that the CIO charges had not been waived. Within the plant Superintendent Dyskow and other supervisors also actively and openly participated in the campaign , championing the AFL's cause and opposing CIO. Furthermore, when dissatisfied with AFL's efforts and literature and with the results of its own open assistance to AFL, the Company covertly supplemented AFL literature by campaign propa- ganda more suitable to its taste, falsely attributing it to AFL. The finding- here made that the Company unlawfully supported, assisted, dominated, and interfered 'with AFL in violation of Section 8(a) (2) and (1) of the Act is based on the following specific acts and conduct; Werner's enlisting of AFL help, his suggestions and encouragement of courses of action, and his promises and granting of assistance in connection therewith (e. g., the promises of 'indemnity., the' furnishing of the mailing list); and the printing , furnishing, and distribution of anti-CIO campaign literature , falsely attributed to AFL. The distribution of AFL literature on company time and property by Wayne Beck and other employees ; the wearing of AFL insignia by plant supervisors , and the encouragement of the wearing of AFL insignia by employees , while prohibiting equal opportunities for the distri- bution of CIO literature, and while ordering the removal of CIO literature, stickers, and insignia , in some cases under threat of discharge. Permitting Beck to solicit employees for AFL in Shop 2, and similarly permitting Waldow and Kornberger to solicit AFL membership in that shop, though denying similar privileges to CIO. Cf. Joshua Hendy Iron Works, 53 NLRB 1411. Permitting Handon to collect dues and to solicit members for AFL on company time and property. 29 The withdrawal from the election at the behest of AFL for the purpose of continuing its support to that union. Continuing to recognize and to deal with Local 471 as the exclusive representative of its employees , and continuing to give effect to its contract with that union after its expiration. 23 There was no contract provision which obligated the Company to permit such activities on company time , and there was apparently no prior practice to permit them on company time and property. Thus, Handon had found it necessary to request specific permission for these special privileges outside the contract after the campaign began. Joshua Hendy Iron Works, supra. Moreover , it is clear from all the evidence that Handon' s activities , though under the guise of collecting dues, were for the purpose of electioneering . Cf. ibid. WAGNER IRON WORKS 483 Suggesting, supervising, and participating in the preparation by AFL committeemen of the anti-CIO article, and publishing it without cost to Local 471 in the company newspaper. Proposing to and agreeing with the AFL shop committee on the formation of a temporary committee as an independent union for the purposes of collective bargaining and for the negotiation of an interim collective-bargaining agreement.24 Collaboration with, assistance to, support of, and participation (through its supervisors) with the AFL committee in the announcement and holding of meetings of employees or company time and property for discussion of its proposal for an independent union, the balloting thereon, and for the organization of the Temporary Committee. Harrison Sheet Steel Company v. N.L.RB., supra; Rehrig-Pacific Company, 99 NLRB 163; H. N. Thayer Company, 99 NLRB 1122; Sharples Chemicals, Inc., 100 NLRB 20. It is also concluded and found that the Company assisted, supported, dominated, and inter- fered with the Temporary Committee and the Independent Union through its aforesaid sug- gestion of, assistance to, and participation with AFL in the organization of said labor or- ganizations, through the furnishing of support and assistance to them by the announcing and holding of meetings on company time and property and the furnishing of company facilities and equipment, and through the recognition of the Temporary Committee, and subsequently of the Independent Union, as the representative of the employees in the handling of grievances and in negotiations and bargaining in respect to wages, hours, and other conditions of employment 2. Interference, restraint , and coercion By the following acts the Company interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act: The interrogation of employees , including the medium of its application form , regarding their union membership and activities , particularly regarding their interest in and activities concerning CIO. Threatening employees with discharge and with an increased workload because of their interest in and activities on behalf of CIO. The surveillance , through Wayne Beck, of the employees' union activities , his reports to Werner thereon (see section III, A, 1, supra), and Werner's claims that he had employees reporting to him concerning CIO activities. The latter claims, which were obviously intended to foster the impression that the Company was engaged in surveillance, were also intim- idatory in character. Knickerbocker Plastic Co., Inc., 96 NLRB 586, and cases-there cited. Offering and paying to employees increased wages to work at the plant during the strike at a time when a question concerning representation was pending; granting to employees who worked during the strike 10 hours' pay for 9 hours' work to induce them to refrain from joining the strike; promising and granting to employees an increased bonus for bringing in new employees' during the strike, Thompson & Co., 100 NLRB 456; West Coast Casket Co., 97 NLRB 820 ; offering to its employees increased benefits in the form of a profit -sharing plan and wage increases to interfere with the employees' free choice of a bargaining repre- sentative at a time when a question concerning representation was pending. Subjecting returning strikers to coercive individual interviews and conditioning their reinstatement in some cases upon the removal of CIO insignia , the refraining from CIO activity, the signing of new applications, and the forfeiting of seniority and other rights and privileges. It has been previously found under section III, A. 7, that the evidence fails to support the allegations of the complaint as to the furnishing of medical services and doctor ' s care. It similarly fails to establish the commission of an unfair labor practice by the alleged run- ning down of strikers on the first day of the strike, and by the alleged surveillance by Beck in the February 7, 1952, incident. 24 Regardless of what might have been the status of an interim agreement if one had been entered into with AFL upon expiration of its contract (compare, for example, Phelps-Dodge Cooper Corporation, 63 NLRB 686, with Joshua Hendy Iron Works, 12U0, what the Com- pany suggested and agreed to was the organization of another assisted and dominated union, through which it might control , or at least influence, collectively its relations with its em- ployees, i. e., the Company' s real purpose was to provide the employees with a substitute for a bona fide collective -bargaining representative. Cf. Indiana Metal Products Corporation, 100 NLRB 1040. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The former incident apparently occurred shortly after the formation of the picket line, and, so far as the evidence shows, at the time of Werner' s first entrance to the plant following the strike. So far as is shown by the evidence , Werner had no prior knowledge of the picket line and no view of it until he started to make the turn into the entrance . Though Werner may have been speeding , or even driving recklessly , there is no evidence that he made any threat on the occasion; and certainly if he were attempting to run down the pickets as alleged, he would not have applied his brakes in an obvious effort to stop the car without striking them . Further- more, though Smejkel complained to the police, there is no evidence that they attempted to arrest Werner or that they even warned or reprimanded him. In the latter incident , though Beck' s presence in the neighborhood was a suspicious cir- cumstance, particularly in view of other evidence as to Beck' s relationship to the Company, Chiakulas' testimony did not establish that Beck was engaged in surveillance of Wagner employees or of union activities. The .incident occurred in the heart of the metropolitan downtown area. Beck was living at the Y. M. C. A., which was nearby. There was no evidence that Beck knew of the activities planned for that evening and none that his presence across the street was other than fortuitous. Certainly the evidence does not establish that his purpose was to spy upon the activities of Wagner employees , or that Beck was engaged in actual surveillance on the occasion. 3. Discrimination a. The Gould-Steffes discharges The evidence clearly establishes (1) that the Company, through its supervisory staff, was fully aware of Gould's and Steffes' activities on behalf of the CIO , and (2) that Schnuck, who made the discharge, had expressed his intention to Don McMahon (then an adherent of AFL) to "do something about it, , that is, "to get rid of them." The chief issue is whether the actual motivation for the discharge was their CIO activities , as charged by the General Counsel, or whether they were discharged for cause , i. e., drunkenness , as contended by the Company. rs Certainly there is ample evidence to make out a prima facie case for the General Counsel's contention. It will suffice to refer only to Schnuck' s statement to McMahon, mentioned above, to Schnuck's express statement to the men that they were discharged for passing out CIO cards, and to his later conversation with Bestul which disclosed that that fact constituted certainly a major part of the cause for the discharge . The question remains whether other evidence refutes the prima facie showing and establishes the Company' s defense that Gould and Steffes were discharged or drunkenness . Cf. Law and Son v. N.L.R.B., 192 F. 2d 236 (C. A. 10) citing Montgomery Ward and Company v. N.L.RB., 107 F. 2d 555, 560 (C. A. 7), Sixteenth Annual Report (1951) National Labor Relations Board, p. 162. Preliminarily, it is important to note that even though a valid cause may exist for the discharge or disci- pline of an employee, that fact does not excuse the discharge if the evidence shows that the employer' s real reason was to discourage union activities . Sixteenth Annual Report , supra, pp. 162-3, and cases cited. The sharpest factual issue is whether Gould and Steffes were drunk or substantially under the influence of liquor during the hour and a hall they were at the plant on May 26. On the one side there was the testimony of Golnar , Bartsch , and Manhoff that they were drunk or had been drinking excessively. On the other side there was the testimony of Gould, Steffes , and Ebbinger that they had had nothing substantial to drink, and the corroborating testimony of Bestul and others that their appearance , demeanor, and actions were normal and did not indicate that either had been drinking. The evidence as a whole requires the finding that the truth lies somewhere between these conflicting versions . During their campaign of CIO solicitation, Gould and Steffes had conducted a continuous tour of the taverns for 3 days and until shortly before they reported to work on Saturday morning. Neither was an abstainer , and it would be wholly unrealistic to as- sume that either had abstained in a setting and under circumstances so conducive to con- viviality. It is therefore concluded that on Saturday morning each imbibed a sufficient quantity za Counsel for the Company argue that while Gould and Steffes were not discharged because of absenteeism , it constituted apart of the " framework" within which the discharge was made. There was no evidence which would support a contention that the prior conduct of the two men played any part in the discharge. Thus Schnuck, who made the actual discharge, testified that he discharged them because of their drunkenness on Saturday, and not for their conduct on Thursday or Friday . Furthermore, as has been found , Schnuck excused the Thursday and Friday absences. WAGNER IRON WORKS 485 of alcoholic beverages that the odor remained on his breath after he reported to work, and that Bartsch and Manhoff detected that odor as they testified. The evidence just as strongly requires rejection of the exaggerated accounts of Bartsch, Manhoff, and Golner that Gould and Steffes were staggering and were in no condition to work. Of crucial significance were these facts. Bartsch was Gould' s foreman, but he did nothing about sending Gould home (as was cus- tomary in such cases), and did not speak to him or reprimand him or report him to anyone. Golner, though also aware of Gould' s alleged condition, even more inconsistently assigned Gould to assist Bestul in an operation which was certainly not without hazard to a man who had, as Golner claimed, been drinking excessively . Indeed there is no evidence that Gould or Steffes were unable to perform, or that they did not perform , acceptable work until they left the plant around 1:30 p.m. It is therefore clear that neither was sufficiently under the influence of liquor to affect the performance or the quality of his work , or that the condi- tion of either was such as to suggest to the Company' s supervisors that he should be sent home. Of course , the finding here made that Gould and Steffes were not substantially under the influence of liquor does not of itself foreclose a defense that Schnuck had discharged them on the basis of reports and his belief that they were. But the evidence also fails to support that defense. Thus Bartsch and Manhoff denied that they had reported to anyone the condition of Gould and Steffes prior to the discharge; and what Golner reported to Schnuck was that Gould was circulating CIO cards.26 Finally. Schnuck's statement to the men themselves and later to Bestul disclosed that it was not the alleged condition of Gould and Steffes , but their CIO activities, which had motivated the discharge. Furthermore, the evidence showed that it was not uncommon for employees to report with liquor on their breath ;27 that where they were noticeably under the influence, and particularly where it was unsafe for them to work, they were ordered home; and that it was not customary to discharge employees for reporting drunk except where repeated prior warnings had been given (as in the case of Jesus Moreno, who was included in the layoff of June 4). The evidence is uncontradicted that neither Gould nor Steffes had previously been guilty or, or had been warned about , inebriation on the job. It is, therefore, concluded and found on the basis of the entire evidence that the alleged drunkenness of Gould and Steffes was a mere pretext which Schnuck endeavored to support after the discharge i8 and that to the contrary he effected the discharge because of their activities on behalf of CIO. By such discharges, therefore, the Company committed an unfair labor practice within the meaning of Section 8 (a) (3) and (1). b. The discharge of the McMahons The evidence disclosed that, as in the case of Gould and Steffes, the Company was fully aware of the CIO activities and leanings of the McMahon brothers . The evidence also estab- lished that , though the Company failed in its attempts to build a trumped -up charge against the McMahons , it nevertheless proceeded to discharge them without such support and in the face of evidence which disproved the charge.2' For example, though Foreman Krueger assured Werner and Dyskow that Ray had been present on the afternoon in question, they pointedly excluded Krueger from the ensuing conference and summarily discharged the McMahon despite the brothers' protests and their offers to disprove the charges against them. Dyskow similarly ignored the assurance of some 10 to 15 employees the following day that Roy McMahon was present on the afternoon he was charged with leaving the plant. 26 As found above, Golner's testimony that he simultaneously reported that Gould and Steffes had been drinking was impeached by his prior contradictory affidavit . That testimony was also Inconsistent with his failure to order Gould home and his assigning of Gould to help Bestul. IT Thus, Werner had testified at one point that "... there is too much drinking on the premises of our plant. We might as well have swinging doors on the plant ; the men have been so often frequenting the taverns.' 28 Other evidence strongly suggests that the Company sought to contrive still other defenses after the Gould-Steffes and the McMahon discharges . Thus, on June 11, the Company wrote the Federal Bureau of Investigation requesting that a security check be made on the four men and on Larsen and Beck because it suspected that a work stoppage at the plant may have been caused by "some element of sabotage." Werner's testimony offered no reasonable explanation either for including the 4 dischargees in such a charge or for having delayed his request until 1 and 2 weeks after the respective discharges. 39 As pointed out under the summary of the evidence, the Banaszak -Bellin testimony fur- nished no support for the charges against the McMahons. 283230 0 - 54 - 32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This summary discharge on trumped-up charges, known to the Company to be without foundation, would alone support the inference (in the light of the CIO organizing campaign, the connection or suspected connection of the McMahons with it , the Company ' s prior demon- strated disposition to restrain CIO activities , and the discriminatory discharges of Gould and Steffes for their participation in the same campaign) that the McMahons were similarly discharged for their CIO activities and leanings . More direct evidence was furnished, however , that their discharge was discriminatorily motivated by Werner ' s statement during the discharge conference, in the presence of the AFL committee, that if he had a CIO spy on his committee, he would get rid of him in a hurry. Similar and more vehement charges that the McMahons were CIO spies were repeated in the Company's subsequent campaign literature It is, therefore, concluded and found that the Company discharged the McMahons because of their activities or assumed activities in behalf of the CIO, and that it thereby engaged in unfair labor practices in violation of Section 8 (a) (3) and (1). c. The night-shift discharges The discharge of the McMahons and the discharge of 22 employees on the night shift, which were made almost contemporaneously , reflected a stepping up in the tempo and severity of the Company's campaign to defeat CIO, and were coincident with the Company's awareness of the progress that CIO had made, despite the Company's earlier restraints and discrimination. Thus, on May 28, Chiakulas had written the Company that an "over- whelming majority" of the employees had designated the UAW-CIO as their bargaining representative, and on May 29 and 31 Chickulas' reports to the membership had disclosed that organization on the night shift was far ahead of that on the day shift. Knowledge of the latter fact must certainly be presumed to have reached the Company in view of the relatively small size of the plant (N.L.R.B. v. Abbott Worsted Mills, 127 F. 2d 438, 440 (C. A. 1), Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, enfd. 185 F 2d 285 (C. A. 2), cert. den 312 U. S. 812), in view of Wayne Beck's activities and his relationship to the Company, and in view of Werner's repeated boasts that loyal employees were reporting to him on CIO activities. The evidence offered by the General Counsel also plainly established a prima facie case that the discharges on the night shift were discriminatorily motivated. Particularly persua- sive were the following facts: (a) The timing and the precipitate nature of the layoff , without warning (H. N. Thayer Co , 99 NLRB 1122); (b) the current and continuing expansion pro- gram and the current and continuing advertising for, and employment of, new employees in the same job classifications (ibid); (c) the failure to recall or to reemploy any one of the dischargees though numerous new employees were hired during the ensuing 3 months and though bonuses were paid for new employees during the strike (N.L.R.B. v. Nabors Co., 196 F. 2d 272 (C. A. 5); Pennwoven, Inc., 94 NLRB 175), (d) the disregard of the seniority provisions of the contract and of the relative ability of the employees; and (e) the Zbikowski testimony that Wotta twice quoted Dyskow to the effect that the night shift would not again be placed at full strength because of fears that CIO activities would be renewed on it. The Company insists, however, that there was a fatal defect in the General Counsel's proof of discrimination because the evidence failed to establish that the Company knew either how many or which of the night-shift employees were CIO members and which AFL, and failed to establish affirmatively that each of those terminated was laid off because of his union membership or activities. Those contentions misconstrue both the purpose of the Company's conduct, as found above, and the nature of the discrimination which is proscribed by the statute Thus, what Section 8 (a) (3) forbids is for an employer " by discrimination in regard to hire or tenure of employment .. to encourage or discourage membership in any labor organization." (Emphis supplied.) Respondent's conduct fell squarely under that prohibition. Thus, with knowledge of the CIO's success in organizing the night shift, the Company made an abrupt and drastic layoff for the purpose of discouraging membership in that Union. 30 The fact that the Company may not have known the membership of all the employees discharged and retained , or that it may have retained some CIO adherents , or some employees whose qualifications it considered superior , does not exculpate it from the charge that it effected the reduction of night-shift personnel to discourage further organization by, and member- ship in, CIO. See N.L.R.B. v. Nabors Co., supra, and cases cited; N.L.R.B. v. Cowell Port- land Cement Co., 148 F. 2d 237 (C. A. 9); U. & S. Lumber Co., 92 NLRB 163. It is for this m Cf. N. L. R. B. v. Deena Products Co., 195 F. 2d 330, modifying and enforcing 93 NLRB 549. WAGNER IRON WORKS 487 reason that the discharge of Jesus Moreno must also be found to be discriminatory, since the layoff was discriminatory in its conception. Were other support needed for the conclusion that the night-shift terminations were to discourage CIO organizing efforts, it is furnished by the shifting and inconsistent bases on which the Company later sought to explain and defend its action. 31 Further analysis of the evidence is unnecessary, since the summary under section III, A, 4, supra, makes sufficiently clear the speciousness of the Company's claims. It is sufficient to note riefly the following: The evidence substantiates none of the varying reasons which the Company assigned in the termination notice, in Werner's statement on June 6 at the conference with CIO, in Werner's testimony at the representation hearing on June 26, in Werner's letter of June 27 to the hearing officer, in Marshall's letter of October 5 to the Regional Office, or in the Company's brief. Werner's testimony in the present hearing was plainly inconsistent with the reasons assigned earlier and was an obvious attempt to contrive a new defense after earlier ones had been exploded. The inconsistencies between Werner's testimony at the present hearing and that which he gave at the representation hearing, and his transparent and unconvincing attempts to explain away those inconsistencies , were especially damaging to any disposition to accept his present story. Indeed, his and Dyskow's testimony that the layoff had been planned months ahead was completely disproved by Werner's testimony to directly contrary effect at the representation hearing. It is, therefore, concluded and found that Respondent discharged the 22 employees on the night shift whose names are listed in Appendix A because of the prevalence of CIO activity among employees on that shift, that said discharges were for the purpose of discouraging CIO membership and activities, and were, therefore, discriminatory within the meaning of Section 8 (a) (3) and (1) of the Act. d. The Smejkel discharge The Smejkel discharge incident set out under section III, A. 7, supra, consisted of two segments, in the first of which Smejkel and Beck were involved. Beck's knowledge of Smejkel's CIO sympathies was clearly established, and Smejkel's resentment of Beck's direction was obvious in turn. Smejkel's testimony did not establish, however, that Beck deliberately provoked a situation in which Smejkel would resist his supervision and thereby provide a pretext for discharge. Cf. Lloyd A. Fry Roofing Co., 85 NLRB 1222. Indeed, the evidence fails to suggest that Beck's direction to Smejkel was other than a normal and legitimate exercise of Beck's supervisory duties. Yet Smejkel chose to adopt an attitude of antagonism and of resistance to Beck's direction, and was thereupon given, and indicated acceptance of, an opportunity to quit. The first half of the discharge incident therefore furnished no basis from which to infer a discriminatory motivation. In the later interview in Schnuck's office, Beck's reference to Smejkel's CIO sympathies lent color, of course, to the General Counsel's contention that Smejkel was discharged be- cause thereof. However, Beck's statement to Schnuck constituted his explanation of Smejkel',s antagonistic attitude toward him, rather than an explanation of his own attitude toward or justification of his manner of supervision of Smejkel. Smejkel's response to that was a more emphatic display of resentment, coupled with a threat of assault. The actual discharge, then made by Schnuck, seemed obviously induced by the final, explosive outburst, which Schnuck could well have regarded as foreclosing the possibility of procuring Smejkel's acceptance of Beck's direction, Cf. Fry Roofing Co., supra. To indulge the presumption that the cause was Smejkel's CIO sympathies would require ignoring the more reasonable , or equally reasonable, inference that Smejkel precipitated his discharge by his open resentment of Beck' s supervision. It is therefore concluded and found that the General Counsel has not maintained the burden of establishing that Smejkel ' s discharge was discriminatorily motivated. e. The constructive discharges The evidence surrounding the Bajanen , Horgan, Kusz, and Sobczak discharges , summarized under section III , A, 9, supra, discloses that Dyskow reinstated the four employees only after Si The giving of evasive or contradictory reasons for a discharge may, of course, be considered in determining the real motive for the discharges , N. L. R. B. v. Condenser Corp. of America, 128 F. 2d 67 (C. A. 3); and the employer's inconsistent explanations of a discharge is a circumstance indicating its antiunion motivation . N. L. R. B. v. Somerset Shoe Company, 111 F. 2d 68 (C. A. 1); and see Mooresville Mills, 99 NLRB 572; Sandy Hill Iron and Brass Works, 69 NLRB 355, enfd. 165 F. 2d 660 (C. A. 2); Lewis & Holmes Motor Freight Co., 63 NLRB 996. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questioning them about the extent to which they had participated in the strike activities. Though he informed them they would have to sign new applications and come in as new employees, he put them to work, but some days later insisted that they file new applications. That requirement was imposed by Dyskow with the admitted hope and intention of forcing them to quit. Dyskow admittedly considered them good mechanics and advanced no explanation of his action save the lame excuse that he felt he had made a mistake. It is clear from the nature of his reinstatement interviews with the four men that what Dyskow was concerned about was the extent of their participation in the strike ; and the inference is plainly justified that Dyskow subsequently became dissatisfied with their explanations and effected their discharge, constructively, because thereof. It is. therefore, concluded and found that Respondent discharged David Horgan on July 2, Wesley Bajanen and Ervin Kusz on July 3, and Alexis Sobczak on July 7, and thereafter refused to reinstate them, because said employees engaged in concerted activities and joined and assisted the CIO, and that the Company thereby engaged in unfair labor practices pro- scribed by Section 8 (a) (3) and (1). f. The union-security clause The General Counsel urges , as violative of Section 8 (a) (3), the following union-security clause of the contract: Each of the Company's employees to whom this agreement is applicable, as defined in Section 1 hereof, who on the effective date of this agreement are members of the Union, or who in the future may become members of the Union and each employee to whom this agreement is applicable , hired during the life of this agreement , who is a mem- ber of the Union when hired , or who may thereafter become a member of the Union, shall, as a condition of continued employment, remain a member of the Union in good standing to the extent authorized by Section 8 (A) (3) of the Labor- Management Relations Act, 1947. It is the General Counsel's contention that this clause fails to accord to new employees who are members of the Union when hired the prescribed 30 days grace period , though he does not question that the clause could properly debar the grace period from new employees who voluntarily join the Union. It is true that certain language in Krause Milling Co., 97 NLRB 536 (upon which the General Counsel relies ), if read literally, supports the view that the grace period must be accorded all new employees , regardless of whether some may be members of the union at the time they are hired . Thus, it is there stated: For the reasons hereinafter appearing , the correct interpretation, we now believe, is one whereby the 30-day grace period must be accorded only to those employees who are not members of the union on the effective date of the union -security clause of the contract, and to new employees hired after said effective date. (Emphasis supplied.) But an analysis of the decision shows that a literal construction was not intended and is not justified. In the first place, the Board did not have before it the precise question now presented, since the clause under consideration in fact accorded to all new employees the prescribed grace period. The language then used related to the question before the Board, I. e., whether it should continue to follow the Worthington Pump case (93 NLRB 527), which had held that union membership could not be required of either union or nonunion members during the first * 30 days of a contract . The Krause Milling case cannot , therefore, be con- sidered as dispositive of the present issue because, even though the quoted language be considered as literally applicable to the instant question, it would constitute at best a dictum. Furthermore, in concluding that the Worthingtoq Pump doctrine should be modified in respect to its application to union members, the Board enumerated various reasons and factors which it regarded as precluding an "escape " period or a "free ride" to employees who were already union members at the effective date of the contract , and supported its conclusions by an exhaustive analysis of the legislative history of the union -security pro- viso of Section 8 (a) (3) of the amended Act. It is unnecessary to repeat the full summari- zation there made , which is here incorporated by reference . It is sufficient to point out that the following conclusions can be drawn from, and are amply supported by, the dis- cussion: (1) "'Congress legislated solely with respect to employees not members of the union" ; (2) Congress did not intend to provide an escape period for employees who were union members; (3) Congress intended to provide a grace period for acquiring member- WAGNER IRON WORKS 489 ship to (a) employees who were not union members at the time of the execution of a union- security contract , and to (b) newly hired employees who were not union members. Subsequent applications of the Krause doctrine support the foregoing conclusions. Thus, it is now established that since employees who are union members on the effective date of the contract can be required to maintain their good standing , employees who later choose to join can also be subjected to the same conditions of employment-Allied Chemical and Dye Corporation, 97 NLRB 1248; West Steel Casting Co., 98 NLRB 153; Jersey Millwork Company, 97 NLRB 1452. Since the voluntary acquisition of membership ends the grade period, no reason appears why the privilege should be available to employees who are union members when hired. si Indeed , the General Counsel's position leads to the absurd result that though voluntary acquisition of membership by nonmembers results in loss of the grace period, the privilege continues in existence for new employees who are already members when hired. Were there any doubt as to the validity of the clause on the foregoing basis, it would be removed by the provision that membership should be maintained "to the extent authorized by Section 8 (a) (3) of the Labor-Management Relations Act 1947." Thus, in American Seating Company, 98 NLRB 800, the contract contained a clause which, without reference to any other part of the contract, permitted the conclusion that nonmember employees at the time the contract became effective were not accorded the prescribed grace period. How- ever , a separate clause provided: This contract is subject in all respects to the provisions of the Labor -Management Relations Act, as it may be amended from time to time , there being no intent in this contract to limit or abridge in any manner the rights and privileges extended by said Act. . . . The Board held that that clause incorporated by reference into the contract the grace periods required by Section 8 (a) (3) in valid union -security agreements , and that when the alleged objectionable clause was read in conjunction with the latter, it became evident that the contract accorded to all employees , old and new , the statutory 30-day grace period in which to become members. Similarly, in Owens-Illinois Glass Company, 96 NLRB 640, the clause provided in part that membership in the Union should constitute a condition of employment for all employees "covered by this agreement subject to Section 8 (a) (3) of the Labor Management Relations Act of 1947." The Board held that the incorporation by direct reference of the provisions of Section 8 (a) (3) into the union-security provision constituted a lawful, if inartistic, union-security agreement. It is, therefore, concluded and found that the union-security clause in the AFL con- tract did not conflict with or violate Section 8 (a) (3). g. The discharge and the refusal to reinstate the strikers Most of the issues surrounding the discharge of the strikers and the Company's subse- quent refusal to reinstate many of them turn on the question whether the CIO strike violated a no-strike clause in an existing contract. That underlying issue is both the most important and the most hotly contested legal issue in the case. For if the strike be found to be in violation of an existing no-strike clause, then it constituted an unprotected concerted activity, and the Company was lawfully entitled to discharge the strikers, to discipline them as it saw fit, and to pick and choose whom it would rehire and on such terms as it chose to impose. United Elastic Corporation, 84 NLRB 768. If, on the other hand, it be found that the strike did not violate the no-strike clause, then the discharges and the subsequent refusals of reinstatement, being because of the employees' participation in protected con- certed activities, would constitute unlawful discrimination forbidden by Section 8 (a) (3). The General Counsel and the Company take opposing positions on that basic issue, the Company relying on the validity and the applicability of the no-strike clause, and the General Counsel contending that the Company is barred, for various reasons, from asserting it as a defense to the discharge. Before moving to a more specific consideration of the con- s: Of course, the contract can in no case be applied retroactively so as to require past membership as a condition of employment New York Shipbuilding Corporation, 89 NLRB 1446, and cases cited. 33 There is no evidence which attributes to any striker the commission of acts of violence or of other conduct during the strike sufficiently flagrant in character as to have constituted in itself unprotected concerted activity. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tentions , it will be helpful to review briefly certain general principles which are pertinent to the present situation and to mark out the lines , indicated with reasonable clarity by existing guideposts , within which the issue is to be determined. The entire scheme of statutory collective bargaining envisaged by the Act was designed to eliminate strikes and industrial unrest, though Congress nevertheless , by Section 13, speci- fically preserved and protected the right to strike - subject to limitations which are not here pertinent Yet it is also well recognized that the right to strike may be waived by a no- strike clause in the collective bargain ; and the Board has not hesitated to require adherence to such a contractual obligation and to deny the protection of the Act to employees who strike in the face of their commitment not to do so. See, e g., Scullin Steel Co., 65 NLRB 1294, Joseph Dyson & Sons, 72 NLRB 445; Fafmr Bearing Co., 73 NLRB 1008, National Electric Products Corp., 80 NLRB 995; United Elastic Corporation, 84 NLRB 768, 773; and cf. Dorsey Trailers, Inc , 80 NLRB 478; N.L.R. B. v. Sands Mfg. Co., 306 U. S. 332. A waiver of the right to strike, being in derogation of employee rights specifically guar- anteed by the Act, is, however, to be strictly construed, cf. Dorsey Trailers, Inc., supra; it is to be regarded as applying only to matters contemplated by the contract and to any conduct by the other party relating to its provisions or to the normal relations of the parties thereunder. See, for example , the concurring opinion of Chairman Herzog in the National Electric case , supra. Furthermore, it is still an open question before the Board , despite the majority holding in that case, whether a strike which is caused by unfair labor practices, over matters not comtemplated by the contract, is violative of a no-strike clause. See footnote 32 of H. N. Thayer Co., 99 NLRB 1122 It is to the foregoing field that attention is first turned and within which the opposing contentions of the parties will be primarily considered and disposed of, though attention will also be given separately to their more important subsidiary contentions which cannot be determined within the present discussion. It is necessary, therefore, to consider the present no-strike clause in its relation to other contract provisions with which it was connected and in express consideration for which the strike waiver was given The relevant provisions are set forth in Appendix C, and need not be here restated . Briefly summarized , they expressed the desire of the parties to avoid strikes, work stoppages , and lockouts, and to that end they set up a grievance and arbitration procedure as the sole means of finally disposing of all grievances "that may properly arise under the terms of [ the] agreement." Upon this mutual consideration, the Company agreed to forego lockouts, and the Union agreed to forego strikes, work stoppages, etc , except for the Company's refusal to arbitrate, pursuant to the contract, or for its failure to abide by the award of the arbitrator In the latter respects the provisions resemble familiar provisions which are frequently included in no-strike clauses. But it is the specification of the types of grievances and disputes to be settled which is significant. Thus, the limitations were laid down initially in section 13 of the contract, under which the grievance procedure was made applicable to any grievance arising between the Company and the Union, or between the Company and an ei.iployee, involving the meaning, application, or interpretation of the contract. 34 Section 14, in turn, provided for the arbitra- tion of disputes and grievances which were not settled under the provisions of section 13, and specifically limited the arbitrator's authority to "the interpretation and application of the express terms of [the ] agreement " Section 15 provided for the reciprocal waiver by the Union and the Company of the right to strike and to lock out, based on the stated agree- ment of the parties that the grievance procedure established by the contract was "adequate to provide a fair and final determination of all grievances that may properly arise under the terms of [the] agreement:'35 (Emphasis supplied.) Any attempt to invoke a no-strike commitment by applying the foregoing provisions to the present situation fails immediately when it appears that the strike was not related to, nor was it on account of, any grievance or dispute which had arisen between the Company and the AFL, the contracting union; nor was it related to or because of any grievance between the Company and an employee, or the contracting union, which involved the meaning, appli- cation, or interpretation of the contract To the contrary, the strike was provoked by an accumulation of flagrant and aggravated unfair labor practices . And were they also to be considered as grievances , they were grievances which were remediless within the terms K This contrasts sharply with the broad provision in the National Electric contract for settlement within the grievance procedure of M dispute (without limitation) between the company and the union or any employee and the company. The reference to company discipline and discharge in section 15 (C) related to cases in which employees might engage in conduct prohibited by the no-strike clause. Cf. section 15 (D). WAGNER IRON WORKS 491 of the contract, albeit CIO had attempted to adjust some of the earlier ones (as in the June 6 conference) in the face of the apathy and of the opposition of the contracting union. , s What the contract procedure plainly envisioned was the final disposition, without strike or lockout , of grievances arising out of the normal administration of the contract and the normal relationship between the parties thereto. ?t Certainly there was no way to adjust or to remedy , under the grievance machinery , the Company' s campaign of assistance and support/ to AFL and of discouragement of CIO Nor can it be said, by any stretch of the imagination , either that the parties contemplated , or that the contract provisions were drawn broadly enough to cover, a situation where the Company would engage, as here, in flagrant and widespread unfair labor practices dedicated to the retention of the incumbent union as the bargaining representative of the employees at a time when a question concerning repre- sentation was pending. Furthermore , had that been the intention of the parties , it would have failed because in conflict with the policy and purposes of the Act, being in derogation of the right guaranteed to employees freely to select, under the aegis of the Board , a repre- sentative of their own choosing. See Sections 7 and 9 (c), and cf Hoover Co. v. N. L. R. B., 191 F 2d 380, 386 (C. A. 6) u Stated differently, the contract neither reflected intention to include, nor expressly pro- vided for, a pledge not to use self-help in the event of the serious violations of the law disclosed by the present record. Since the contract did not preclude self-help in such cir- cumstances, its use cannot constitute a breach of the contract, and accordingly the Scullin- Dyson rule may not be applied. It is also appropriate to note here an additional basis for distinguishing the National Electric case, on which the Company relies, and that is the nature and the extent of the employer conduct which provoked the strike. That case involved a single discharge, required by the incumbent union under the express terms of its contract, but one which the Board found to be discriminatory under the Rutland Court doctrine. 39 There was no evidence that the employer had acted in bad faith in performing, at the union's insistence, its contractual obligation, or that it otherwise acted with intent to defeat employees' rights. That isolated and somewhat technical unfair labor practice is a far cry from the wide- spread and flagrant unfair labor practices here found . Indeed, this case presents the exact situation foreseen by Chairman Herzog in his concurring opinion " of unfair labor practices of such provocative magnitude that, human nature and the Board's delays being what they are, employes [could] reasonably be expected--or intended--by their employer to turn to what would prove to be suicidal self-help." 40 The foregoing conclusions require the rejection of Respondent's main contention that the striker was in violation of the no-strike clause . At the same time they have led to acceptance of one of the General Counsel's basic contentions (i. e., that the no-strike clause was not applicable), though not on the precise basis argued for in his brief. The Company asserts, however, the two following subsidiary contentions which, if up- held, would yet defeat the General Counsel's attack on the strike discharges: (1) That be- cause the strike occurred within the 60-day period prescribed in Section 8 (d) of the Act, the striking employees had lost their status and their rights as employees of the Company, and (2) that the strike was itself an unfair labor practice, in violation of Section 8 (b) (4) 36 Thus, Waldow admitted that he was not averse to the discharge of the CIO adherents; and other evidence established, as found herein, that Local 471 was currently conniving and participating with the Company in the commission of other unfair labor practices Even had the grievance procedure been applicable, resort to it by CIO or its adherents was obviously futile stln other words, the substitution of the grievance and arbitration procedure for strikes and lockouts was a limited one, not complete and unreserved. Cf. Consolidated Frame Co., 91 NLRB 1295, 1297, and cases cited. 38 These conclusions render immaterial Werner's offers to arbitrate the various discharges and his testimony that he considered such grievances to be within the contemplation of the contract. Furthermore, were it assumed that his understanding were correct, it is well settled that a failure to exhaust grievance and arbitration procedures does not affect or foreclose the Board's power to prevent and to remedy unfair labor practices Section 10 (a); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261; Todd Shipyards Corporation. 98 NLRB 814, and cases cited; Monsanto Chemical Company, 97 NLRB 517. 39Rutland Court Owners, 44 NLRB 587, 46 NLRB 1040. That doctrine was later overruled by the Supreme Court in Colgate-Palmolive-Peet Company v. N. L. R. B., 338 U. S. 355. 40 The General Counsel' s argument is rejected , however, that because of the provocative nature of the Company' s unfair labor practices , the strike should be found to be a construc- tive lockout , and for that reason to be outside the ambit of the no -strike clause. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (C) of the Act, because an alleged object thereof was to force or require the Company to recognize CIO in the face of a certification of AFL. Those contentions will be considered in order, prior to giving attention to further arguments of the General Counsel regarding the contract and the no -strike clause. (1) Section 8 (d) is plainly inapplicable to the present case , since what it provides for are certain procedures to be followed by a party to a collective-bargaining agreement who seeks to terminate or modify the contract . But it was AFL, not CIO, who was the contracting party here. Moreover, Section 8 (d) by its terms applies only to strikes to terminate or to secure a modification or interpretation of a collective -bargaining contract . H. N. Thayer Co., supra; and see Wilson and Company . Inc., 89 NLRB 310. The present strike had no such purpose. To the contrary, the finding that it was an unfair labor practice strike to protest certain discriminatory discharges and other disparate treatment accorded CIO during the election campaign plainly takes the strike itself outside the purview of Section 8 (d). Ibid. (2) There was no evidence and no claim that the AFL local had been certified in a repre- sentation proceeding under Section 9 (c), Perry Norvell Co., 80 NLRB 225, but only that, pursuant to Section 9 (e), the Board had on February 8, 1949, certified the results of a union-authorization election that the required majority of employees had voted to authorize Local 471 to make a union-security agreement. Since Local 471 was never certified under the provisions of Section 9 (a), Section 8 (b) (4) (C) cannot be invoked. Ibid. Nor does the evidence support the claim that the strike was called to force or require the Company to recognize or bargain with CIO. Chiakulas' letter of May 28, though requesting recognition , referred to the existing representation by AFL and requested the Company to refrain from entering into any new contract with that union pending settlement of the representation question. Chiakulas' testimony as to the strike meeting and the causes o the strike (corroborated by many other witnesses) showed that the employees were not then concerned about obtaining recognition , but that they were protesting the various discrimi- natory discharges and the Company' s various other unfair labor practices. Though Respondent' s defenses of the strike discharges have been rejected as without merit, it is appropriate nonetheless to consider the more important alternative bases urged by the General Counsel for defeat of Respondent's reliance on the no -strike clause. The General Counsel' s contention that the contract was illegal because of the inclusion of the union-security clause was disposed of under the preceding section of this report. 'u The General Counsel also argues , in reliance on the Thayer case, supra, that the contract was illegal because the AFL was illegally assisted , supported , and dominated by the Com- pany . But the assistance and domination which have been found herein occurred not at or prior to the time the contract was entered into, but near the end of the contract term, and, indeed , after a question concerning representation had arisen. Cf. Scullin Steel Co., suprP., at p. 1317. The Thayer case is, therefore, clearly inapposite. The General Counsel also argues that various breaches of contract by the Company e2 render the present case an exception to the Scullin Steel case. Though certain breaches occurred, and though the Scullin-Dyson doctrine is premised in part on the absence of evidence that the employer had breached his contract, it is somewhat uncertain what type or character of breaches the Board had in mind as sufficient to justify a subsequent breach of a no-strike clause; nor did the Board have under consideration in formulating that doctrine, a case like the present where the contract breach most strongly complained of was com- mitted in favor of the union (not a party to the contract) whose strike action the General Counsel now seeks to condone because of that very breach. Thus , the General Counsel urges that the Company breached its contract by its recognition of CIO on June 6 for the grievances 43 in the face of its contractual obligation to accord ex- clusive recognition to AFL. Certainly there was a breach of the contract with AFL to the extent stated , but it was one whose benefits were intended for and which were readily ac- cepted by CIO. The breach, therefore, was one which would have been available to AFL to assert in defense of any strike to which it might have resorted because of the Company's A' Also see footnote 40, rejecting the constructive lockout argument. Other arguments by the General Counsel which are not specifically referred to herein have been rejected. 42 I. e., the recognition of CIO; the layoff of the night shift without regard to the seniority provisions; the inclusion of supervisors in the unit ; and the Company' s unfair labor practices. 45Though the General Counsel contends that the recognition of CIO was on an equal basis with AFL, it has been found herein that the recognition was limited to grievances only. WAGNER IRON WORKS 493 breach of its contractual obligations to AFL. M But CIO having participated in and having accepted the benefit of the breach cannot assert it in defense of its own subsequent conduct, nor does the General Counsel, despite his representation of the public interest , stand in any better position to defend or to condone CIO's conduct in striking, if it did , in violation of the no-strike clause The General Counsel also argues that the Company abrogated the contract by its aforesaid recognition of CIO. That argument was plainly inconsistent with the position elsewhere taken (and herein upheld) that the Company continued its assistance to AFL by continuing the contract in effect and by continuing to recognize AFL under it. The same inconsistency exists as to the General Counsel' s argument that the Company abrogated and rescinded the contract by certain of its conduct following its consent to the election. Indeed, the General Counsel endeavored to spell out a species of equitable estoppel on the theory that the strike was provoked by the Company's conduct, including the consent to the election, the effect of which constituted a representation that the Company had abandoned the contract, and especially the no-strike clause. That argument, unsupported by authority , is rejected as too strained and tenuous to warrant serious consideration. The General Counsel's final contention is that the Company's letter of June 22 was not a discharge but a tactical maneuver; that the actual discharge of the strikers occurred on the application for their reinstatement on June 27, and was based solely on the fact that they were active adherents of the CIO; and that the Company thereby waived the no-strike clause and condoned the strike action . That contention was made in the face of a stipulation made by Swander , who began the presentation of the case for the General Counsel , that the strikers were discharged by the June 22 letter . However , Gore, who took over the case midway for the General Counsel, and who was apparently unaware ofthe stipulation , later developed testimony from a number of witnesses which in certain respects tended to support the present conten- tion. Gore thereupon announced his theory of "tactical maneuver," and prior to resting, moved for and was granted permission to amend the complaint to allege that the strike discharge occurred on June 27. Respondent later moved for and was granted a recess of 3 weeks prior to pitting in its own case Both during its own case and during the cross -examination of the General Counsel's witnesses , the Company litigated fully the General Counsel ' s new theory and the amendment to the complaint. These circumstances show that the parties in effect waived and abandoned the stipulation by acts amounting to a virtual disregard thereof, see 60 C . J., "Stipulations," sec. 88, p. 90, since evidence was offered and the issue litigated without regard to the stipula- tion and without objection on that ground. Crecelius v. Chicago, etc. R. Co., (Mo.) 223 S.W. 413. Though the Company urges in its brief that the stipulation was binding upon the General Counsel, it makes no showing that it was misled or allowed to act to its injury in reliance on the stipulation , Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403 , 444; 60 C. J. "Stipulations ," sec. 101, pp. 97-8; 50 Am. Jur., "Stipulations" secs. 11. 14, pp. 611-12, 613-14; or that its rights were prejudiced in any manner by allowing the amendment to the complaint. Under these circumstances the stipulation will be regarded as waived or aban- doned, and the General Counsel' s present contention will be considered on its merits. It is true, as the General Counsel points out, that the testimony of a number of employee witnesses concerning their reinstatement interviews with Dyskow strongly suggests that Dyskow had not considered the June 22 letters as a discharge. It is true also that Dyskow's testimony in part supports that view . However , the evidence is undisputed that it was Werner who made the decision to discharge the strikers and who drafted the letter, with Marshall's help, to effectuate that decision. Werner also directed Dyskow to prepare immediately a list of all of the strikers , and it was to those so listed by Dyskow to whom the letters were sent, with the intention of discharging them for not having returned to work in response to the AFL's notice to do so. Although it is not clear that Werner defined to Dyskow the word "striker ," Dyskow himself placed a novel , if not anomalous , interpretation upon the term . Thus , he eliminated from the list for discharge any employees from whom he had received reports, either directly or indirectly (i. e., through foremen or nonstriking employees), that their absences from work 4t Though a basis also existed for a claim that the Company' s recognition of CIO for grievances constituted an unfair labor practice (compare Hughes Tool Company, 56 NLRB 981, enfd . 147 F. 2d 69 (C. A. 5) with Douds v. Local 1250, 173 F. 2d 760 (C. A. 2); and see the Trial Examiner ' s report in Miami Copper Company, 92 NLRB 322, at 334-340), no charge was filed by AFL and no allegation was included in the complaint to such effect. Those facts and the conclusions here reached render it unnecessary to consider whether further effects attended the Company's action in recognizing CIO. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not due to their participation in the strike but because they did not care to work while it was in progress , or did not care to cross the picket line, or was for illness or vacation, or for such other reason as persuaded Dyskow that the employee was not an active partici- pant in the strike. He carried this to the point of eliminating even those who had actually picketed for a short time but who had called in and excused their action on the ground that they had done so only because "they wanted to be a good guy." The foregoing circumstances do not establish that the letter was not a discharge The Company' s view was , and its action was taken on the premise that , the strike was in viola- tion of the no-strike clause and that participation therein was not a protected concerted activity. On that premise , Respondent was free to exercise any choice it saw fit with respect to the termination of employees who participated in the strike . Cf. United Elastic Corp., supra . Thus, it might , for example, have chosen to discharge all employees who refrained from working because of the strike , or again, only the leaders of the strike. Its middle course of discharging only the more active participants in the strike activity was equally within its prerogatives , had its premise been a valid one. Cf . Union Carbide and Carbon Corp, 100 NLRB 689 Though Dyskow ' s subsequent handling of the reinstatement interviews could not have efficacy , retroactively , to convert the Werner discharge letter into a tactical maneuver, the evidence does establish , as the General Counsel contends , that Dyskow' s selection of employees for reinstatement was not free of discriminatory motivation . This was most clearly demonstrated by the constructive discharges (see subsection e, supra), and by the interviews with the Fecteaus . The latter interviews were of particular significance, since they established that Dyskow reinstated the Fecteaus on the condition that they remove, and that they refrain from wearing , their CIO insignia , and that they refrain also from further CIO campaigning , because, as Dyskow stated to one of them , "we were rid of [CIO] and we' d like to keep it that way ." Though the record contains much other evidence which supports the present conclusion , it is unnecessary to consider the point further in view of the conclusions previously reached herein , and the fact that in any event the remedy of reinstatement with back pay to run from June 27 would be identical , regardless of whether the discharges, occurred on June 22 or 27 . See Happ Brothers Co. Inc., 90 NLRB 1513, 1518; Globe Wireless , Ltd., 88 NLRB 1262 , 1268; Alside, Inc., 88 NLRB 460, 462. It is therefore concluded and found that on June 22 , 1951 , the Company discharged dis- criminatorily the 57 employees whose names are listed in Appendix B hereto , 46 and there- after refused to reinstate them because said employees engaged in concerted activities and joined and assisted CIO, and that the Company thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1). C. Concluding findings - Case No. 13-CB-148 No substantial question is presented under the evidence insofar as the case against the Respondent Union is concerned, since the following facts are conclusively established: On June 15, Handon attempted physically to rip CIO insignia from an employee. From July through December Handon made repeated threats to have employees discharged by the Company unless they paid dues to Local 471.47 By those acts Respondent Union re- strained and coerced employees of the Company in the exercise of rights guaranteed them 45 Under Werner' s instructions , Dyskow had been authorized to take back as new employees some of the better mechanics whose services Dyskow was particularly anxious to retain. Dyskow admittedly misapplied those instructions. , 46 The complaint as finally amended listed nine additional employees as strike discharges, as follows: Kenneth Beyer, Harold Blink, Anthony Galaska, Lawrence Houston, Walter Koehler , Marvin Markestad , William Packard , Theodore Wanick, and Ralph Welter . Careful scrutiny of the record discloses no evidence that any of them was discharged (i. e., was sent or received a copy, of the discharge letter) or was refused reinstatement after the strike. Furthermore , although Respondent' s time records show that none of them worked during the strike , there is na evidence from which it can be found that their absence was due to their participation in the - strike. The closest approach was furnished by the case of Lawrence Houston (the only one of the group who was a witness) who testified only that he did not work during the strike and did•npt picket , without attempting to explain whether his failure to work was because of the strike."Firthermore , Houston admitted that he did not receive a discharge letter , and there is no evidence that he was sent one. 47 Since the validity of the union-security clause has been upheld, it cannot be found that Handon's threats to procure the discharge of AFL members for nonpayment of dues consti- tuted an unfair labor practice prior to the expiration of the contract on July 1, 1951. WAGNER IRON WORKS 495 in Section 7 of the Act, and thereby engaged in unfair labor practices proscribed by Section 8 (b) (1) (A): '- On or before June 4, Respondent Union attempted to cause and did cause the Company to discharge Roy McMahon and Don -McMahon because of their real or assumed membership in and support -of"UAW-CIO, thereby causing and attempting to-cause the Company to dis- criminate againsrt = said employees in violation of Section 8 (a) (3) of the Act, and thereby engaged in unfaii'labor practices proscribed by Section 8 (b) (2) of the Act. For reasons which are fully stated in section III, B, 3 , f, supra, it is found that the Union did not, by • maintaining and enforcing with the Company the union-security clause, engage in unfair labor practices as charged in the complaint. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following. CONCLUSIONS OF LAW 1. The activities of the Respondents set forth in section III, above , occurring in connection with the operations of the Respondent Company set forth in section I. above, have i close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening And obstructing commerce and the free flow thereof. "t" UAW-CIO, Local 471, the Temporary Committee, and the Independent Union are labor organizations within the meaning of Section 2 (5) of the Act. - 3. By dominating, interfering with, assisting, and contributing support to Local 471, and by dominating , interfering with, fostering, supporting, and assisting the formation and administration of the Temporary Committee and the Independent Union, the Respondent Company has engaged .in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) and (1). 4. By discriminating in regard to the hire and tenure of employment of Gust John Gould, Jacob Steffes , Roy McMahon, Don McMahon, Wesley Bajanen, Ervin Kusz , David Horgan, and Alexis Sobczak and of the 79 employees whose names are listed in Appendices A and B hereto attached , thereby discouraging membership in UAW-CIO and encouraging member- ship in Local 471, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 5. By interfering with , restraining , and coercing ` its employees in the exercise of the rights guaranteed in Section 7 oFthe Act, Respondent Company has engaged,in and is engaging in unfair labor practices withinihe meaning of Section 8 (a) (1) of the Act;`' 6 By causing the Respondent Company to discriminate against Roy McMahon and Don McMahon in violation of Section 8 (a) (3) of the Act. Respondent Union, Local 471, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 ?b) 1 (A) of the Act. - 7. By restraining and coercing employees of Respondent Company in the exercise of the rights guaranteed'-; in Section 7, Respondent -'Utiioil has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. , a [ Recommendations omitted from publication.] APPENDIX !C RELEVANT GRIEVANCE, ARBITRATION, AND NO-STRIKE PROVISIONS OF THE CONTRACT Section 13. (C) Should any grievance arise between the Company and the Union, or between the Company and an employee or employees involving the meaning , application or interpreta- tion of this agreement , an earnest effort shallbe made to settle such grievance in the following manner. Step 1. By the complaining employee, Shop Steward and Squad Leader. If not settled, Step 2. By the Shop Committee, Shop Superintendent for the Company and/or his desig- nated representatives. If not settled, Step 3. By a representative of the Union, the Shop Committee and the Plant Manager for the Company and/or hi's designated representatives. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 14. Any difference or dispute between the Company and the Union , or between the Company and an employee or employees , which has not been satisfactorily settled in accord- ance with the provisions of the preceding section of this agreement , shall, upon the written request of either party to' this agreement be submitted to arbitration by an impartial arbi- trator to be selected by mutual agreement of the parties. . . . It is agreed that the authority of the arbitrator shall be limited to the interpretation and application of the express terms of this agreement . The arbitrator shall have no power to alter or add to the terms of this agreement , or to disregard this agreement , or to arbitrate any dispute arising out of the negotiations of a new agreement , or a renewal of this agree- ment, or any amendment thereto or supplement thereto. Section 15 . (A) The Company and the Union agree that the grievance procedure provided herein is a equate to provide a fair and final determination of all grievances that may properly arise under the terms of this agreement , and shall be the sole means of disposing of griev- ances. It is the desire of the Company and the Union to avoid strikes and work stoppages and lockouts. (B) The Union agrees that neither it nor its members , individually or collectively, will, during the term of this agreement , cause, permit, approve , or take part in any strike, picketing, sitdown , standin, slowdown, or other curtailment or restriction of production or interference with work in or about the Company' s plant or premises , except for refusal of the Company to arbitrate in accordance with Section 14, or failure of the Company to abide by the award of the Arbitrator. (C) If the Company shall discipline or discharge any employee or employees who shall engage in conduct hereby prohibited , such discipline or discharge shall not be subject to review upon any ground other than that the employees did not engage or take part in such conduct. Such discipline or discharge shall be imposed within seven (7) working days after such violation has terminated ; otherwise , such discipline or discharge shall be subject to the regular grievance procedure. (D) During any period in which employees are engaged in any violation of this section, the Company will not be required to bargain with representatives of the Union with respect to the employees engaged in such violation. (E) In the event that a violation of this section occurs or impends, the Union in good faith (1) will make every effort to prevent it or to terminate it, as the case may be; (2) will immediately post notices throughout the entire plants affected thereby , on the Union' s Bulle- tin Boards referred to in this agreement , which notices shall be in the form hereinafter quoted in this subsection (E), and signed by the President or Vice President and the Recording Secretary of the Union and/or an authorized officer of the International Union ; and (3) will take such further steps as it , in its discretion , considers reasonable and appropriate under the circumstances, in order to prevent such violation or to bring it to an end , as the case may be. "To All Members of SHOPMEN'S LOCAL UNION NO. of the INTERNATIONAL ASSOCIATION OF BRIDGE STRUCTURAL AND ORNAMENTAL IRON WORKERS: "Dated: "You are advised that certain action took place today in this plant. This action was ` unauthorized by both the Local and International Union. "You are directed to promptly return to your respective jobs and to cease any action which may affect production. The grievance(s) in dispute will be processed through the regular grievance procedures provided for in your contract. "If conditions do not return to normal immediately, we feel that the Company is justified in permanently replacing you with new employees." (F) The Company agrees that in consideration of the due performance by the Union of the undertakings herein assumed by it with respect to preventing and terminating violations of this section, there shall be no liability on the part of the Union, its officers , agents, or on the part of its members as such , for damages or otherwise. (G) The Company shall not engage in any lockout of the employees.