Illinois Malleable Iron Co.

ILLINOIS MALLEABLE IRON COMPANY 451 All of our employees are free to become, remain , or refrain from becoming, mem- bers of any labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Rela- tions Act. E. V. PRENTICE MACHINE WORKS, INC., 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. Illinois Malleable Iron Company and Appleton Electric Com- pany and Local No. 788, International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of Amer- ica, AFL-CIO, Charging Party and Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, Party to the Contract. Case No. 13-CA-1866. April 16,1958 DECISION AND ORDER On January 25, 1957, Trial Examiner Louis Plost issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents 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 fur- ther found that the Respondents had not engaged in certain other unfair labor practices, and recommended that the complaint be dis- missed with respect to such allegations. Thereafter, the Respond- ents, the IBEW, the General Counsel, and the Charging Party filed exceptions with supporting briefs.' The Board 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 recom- mendations of the Trial Examiner, with the exceptions, additions, and modifications noted below. 1. We agree with the Trial Examiner that the Respondents vio- lated Section 8 (a) (2) and (1) of the Act by applying and enforc- ing the union-security contract between the IBEW and Appleton and the two supplemental agreements to employees of Malleable hired after September 21, 1954; by specifically requiring these em- ployees to join the 1BIEW as a condition of employment and to sign dues clieckoi autliorization cards in favor of the IBEW ; by deduct- 1 The Respondents ' request for oral argument is hereby denied , as we are satisfied that the briets and iecord define the issues with sufficient clarity. 120 NLRB No. 68 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing dues for the benefit of the IBEW; and by making various: threatening remarks to several applicants for employment, if they supported the UAW. The Respondents and the IBEW principally contend that they were justified in extending their agreement and the supplementary contracts to the Malleable employees because these employees constituted a normal accretion to the established Chicago- area bargaining unit. Like the Trial Examiner, we find no merit in this contention. As disclosed in the Intermediate Report and the record, the Re- spondent Appleton is engaged in manufacturing electric fittings, lighting equipment, and other products. For a number of y6ars, its production and maintenance employees have been represented by the, IBEW. On September 1, 1954, Appleton and the IBEW entered into the union-security agreement, which is here involved, covering the Appleton plants in Chicago and "any future plants or divisions located in the Greater Chicago Metropolitan Area." On September 21, Appleton, by stock purchase, acquired control of Respondent Malleable, which a few days before had closed down its operations. As a result of the stock purchase, Malleable became a subsidiary of Appleton, retaining, however, its corporate entity. Malleable was essentially a foundry engaged in manufacturing castings for the plumbing trade. Since 1940, its employees were rep- resented by the UAW. On September 22, the day after the acquisition of Malleable, Appleton, in the name of Malleable as its subsidiary, entered into a supplemental agreement with the IBEW by which it agreed to recognize the latter as the sole bargaining representative for all Malleable employees. At the time this supplemental agree- ment was executed, no rank-and-file employee had yet been hired for Malleable. On September 27 the UAW, as soon as it learned that the Malleable plant was to be reopened, sent a letter to'Solak, form- erly personnel employment manager for Malleable, who was employed by Appleton as assistant to its personnel manager to assist in rehiring former Malleable employees. In its letter, the UAW reminded Solak that it was the bargaining agent for all Malleable employees and sug- gested that, in the interest of protecting the seniority and other accrued benefits of such employees, he meet with its representatives. Thereafter, about October 25, Malleable's main foundry operations were resumed. On September 22 Solak began interviewing Malleable employees, hiring, by November 1954, a total of 145 former Malleable employees. On January 26, 1955, a second supplemental contract was executed, effective as of November 15, 1954, covering specific rates for Malleable's foundry classifications .2 2It appears that on or about September 27, 1956 , the Malleable foundry was closed and all castings were thenceforth to be made at Appleton 's Milwaukee foundry, ILLINOIS MALLEABLE IRON COMPANY 453 The evidence further establishes that when the former Malleable (employees were interviewed for jobs, they were told that the UAW was no more; that the IBEW was the bargaining representative of all the Malleable employees; and that they would be required under the Respondents' agreements with IBEW to become members of that organization. To several of these employees, Solak also gave a warn- ing that Appleton would close the plant to keep the CIO out. Another person was warned not to mess around at the UAW hall or around its President Hill, if he did not want to lose his job. Each Malleable employee, at the time he was hired, was also required to sign a check- off statement authorizing the employer to deduct union dues for the IBEW, which deduction was to begin 30 days after the date of employment. Contrary to the Respondents' and the IBEW's contention, we find that the Malleable employees did not constitute a normal accretion to the established Appleton bargaining unit as to deprive them of their right freely to designate their own bargaining representative. Although we recognize that Appleton utilizes castings in the manu- facture of its products, it is clear from past production experience that the operation of a foundry is not an essential element of its manufacturing process. Indeed, Appleton, both before and after acquiring the Malleable foundry, used the castings from its South Milwaukee foundry, whose employees have been represented separately by a Molders union. This basic difference in the type of work done at the Malleable foundry and at the Appleton Chicago plants persuades us that, for all intents and purposes, the Malleable operation amounted to a new enterprise and that the Malleable employees comprised a distinct unit entitled to express their choice of a bargaining representative .3 The validity of this conclusion is further demonstrated by other fac- tors present in this case. Thus, Malleable employees worked in sepa- rate buildings from Appleton employees. They had their own gate, time clock, lunchrooms, showers, and lockers. When hired, they were designated as Malleable employees, and their checkoff cards indicated that Malleable was their employer. Their paychecks also showed that they were paid by Malleable. They had separate seniority rights from Appleton employees and were not entitled to membership in the Appleton Profit Sharing Plan, which was of considerable value as an incident of employment. In addition, there was no substan- tial interchange between Appleton and Malleable employees. 'Job classifications at Malleable were different from those at Appleton as the latter was essentially a machine shop and the former a foundry. Moreover, Malleable employees had a long continuous history of separate collective bargaining. And finally, Malleable retained its 3 Byron-Jackson Division, Borg-Warner Corporation, 117 NLRB 1613. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD separate corporate entity with its own stationery, telephone listings, payroll, registered agent, records of its operations reflecting its rev- enues, labor, and overhead. Malleable also paid its own Federal income taxes. In view of the foregoing, we find that, by extending the IBEW union-security contract and the supplemental agreements to the Malleable employees, without affording these employees an oppor- tunity to express their free choice of a bargaining representative, and by engaging in the other conduct outlined above and discussed in the Intermediate Report, the Respondent gave the IBEW unlawful assistance within the meaning of Section 8 (a) (2) of the Act.' By reason of this conduct, we further find that the Respondents interfered with, restrained, and coerced employees in violation of Section 8 (a) (1) of the Act. 2. The Trial Examiner found that, although he had "a very serious doubt," the record did not establish that the Respondents discrimina- torily refused to employ Smith, Castelluccio, and Hill in violation of Section 8 (a) (3) and (1) of the Act. We do not agree with the Trial Examiner insofar as Smith and Castelluccio are concerned. We are persuaded from a careful analysis of the evidence that Smith and Castelluccio were denied employment solely because of their UAW activities and the Respondents' animus to that organization. The following is a brief summary of the facts : Raymond Smith was formerly chief UAW plant steward and a member of the bargaining committee at Malleable. He had 14 years' service with Malleable and was a highly experienced employee in its galvanizing department. According to his testimony, which is cred- ited,5 Foreman Raiman told him at his interview for employment that he could not be employed because they did not want the CIO back, and that they would rather close the plant than accept the CIO. Castelluccio had 15 years' service with Malleable during which period he was steward, chief steward, and committeeman, but had held no office since 1945. For more than 2 years before Malleable closed, he was a maintenance welder, which was one of the most skilled jobs in the plant, and was qualified to do grinding, molding, and 'The Item Company, 113 NLRB 67 . The facts of Borg-Warner Corporation, 113 NLRB 152, relied upon in Member Bean's dissenting opinion, are plainly distinguishable from those in the present case . The Board there found an accretion , because, among other things , of the similarity of skills utilized and manufacturing processes involved in the new and established operations , and because the new plant was staffed with a substantial number of transferees from the company 's other operations. 5 Although the Trial Examiner did not specifically credit or discredit this testimony, we see no reason for not crediting it Not only are Foreman Raiman's remarks of the same general tenor as those which the Trial Examiner found were made by Assistant Personnel .Manager Solak when he interviewed Malleable job applicants, but they also follow the Respondents' general pattern of conduct designed to entrench the IBEW in the Malleable plants and to exclude the UAW. In any event , the record supports our finding of dis- crimination even without this testimony. ILLINOIS MALLEABLE IRON COMPANY 455 cupola tender work. When he applied for work, he told Assistant Personnel Manager Solak that he was willing to take any job. According to Castelluccio's uncontradicted testimony, which we credit, when he returned to Malleable for work several weeks later, Solak chided him for "shooting off" his mouth at UAW meetings. The record also shows that when Smith and Castelluccio applied for work, numerous jobs were open which they were capable of perform- ing, but for which jobs other individuals with lesser seniority at Malleable were hired. Moreover, there is evidence that employees whose former jobs were not available were hired for other jobs they could perform. In these circumstances, the testimony of Solak, whom the Trial Examiner generally discredited, that Smith was not hired because his former job was eliminated and that Castelluccio was not hired because nothing like his former job was available, is readily transparent. Viewing the Respondents' denial of employment to Smith and Cas- telluccio against the background of the Respondents' hostility towards the UAW and the unfair labor practices engaged in, as found above, in order to entrench the IBEW in the Malleable plants to the exclu- sion of the UAW, we find that the Respondents discriminated against Smith and Castelluccio to encourage membership in the IBEW and to discourage membership in the UAW, within the meaning of Section 8 (a) (3) of the Act.6 We further find that, by reason of the fore- going conduct, the Respondents interfered with, restrained, and coerced employees within the meaning of Section 8 (a) (1) of the Act. THE REMEDY ° Having found, contrary to the Trial Examiner, that the Respond- ents have discriminatorily denied employment to Raymond Smith and William Castelluccio, we shall order the Respondents to offer them full and immediate reinstatement to the jobs in which they would have been hired had no discrimination been practiced against them, or if such positions are not available, to substantially equivalent posi- tions, without prejudice to any rights or seniority they would have acquired in the absence of such discrimination. We shall also order the Respondents to make Smith and Castelluccio whole for any loss of pay suffered by reason of the discrimination against them from the date of the discrimination to the date of such offer of employment, 6 with respect to Hill, the third alleged discriminatee , we find, in agreement with the Trial Examiner, that, in view of Hill 's medical history , the preponderance of the evidence does not establish any discrimination against him 7 We adopt generally the Trial Examiner 's recommended remedy with respect to the Section 8 (a) (2) and (1) violations herein found , except as it recommends that the Respondents refrain from granting recognition to any labor organization other than the IBEW as the representative of Malleable 's employees, without certification by the Board. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less their net earnings.8 Back pay is to be computed in the manner prescribed in the Woolworth case." In accordance with the Board's customary practice, we shall exclude from the computation of back pay the period from the date of the issuance of the Intermediate Report to the date of the issuance of our Decision and Order herein. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Re lations Board hereby orders that the Respondents, Appleton Electric Company and Illinois Malleable Iron Company, Chicago, Illinois, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Assisting or supporting Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, by requiring the employees of the Respondent Malleable to become or remain members of said labor organization, except as authorized by Section 8 (a) (3) of the Act. (b) Recognizing Local 1031, International Brotherhood of Elec- trical Workers, AFL-CIO, as the bargaining representative of the em- ployees of the Respondent Malleable unless and until said organization shall have been duly certified by the Board as the representative of such employees. (c) Giving effect to their collective-bargaining contracts with the said Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, or to any extensions, renewals, modifications, supplements, or any superseding agreements thereof, insofar as such agreements are applied to the employees of the Respondent Malleable, unless and until said Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, has been duly certified by the Board as the representative of said employees of the Respondent Malleable; but the Respondents shall not be required to vary or abandon the wages, hours, or condi- tions of employment as now in effect in its relationship with said em- ployees, or to prejudice the assertion by said employees of Respondent Malleable of any rights or privileges they may have acquired by rea- son of the application of the aforesaid contracts. (d) Encouraging membership in Local 1031, International Brother- hood of Electrical Workers, AFL-CIO, or discouraging membership in Local No. 788, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or in any other labor organization of their employees, by refusing to hire ap- plicants for employment, or discharging employees, or in any other manner discriminating against them in regard to their hire or tenure 8 Crossett Lumber Company, 8 NLRB 440. OF. W. Woolworth Company, 90 NLRB 289. ILLINOIS MALLEABLE IRON COMPANY 457 of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist Local 788, International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-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 activi- ties, except to the extent that such right may be affected by an agree- ment 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) Withdraw and withhold all recognition from Local 1031, Inter- national Brotherhood of Electrical Workers, AFL-CIO, as the repre- sentative of the employees of the Respondent Malleable for the purpose of collective bargaining concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until said Union is duly certified as such representative by the Board. (b) Offer Raymond Smith and William Castelluccio immediate and full reinstatement to the positions in which they would have been hired had no discrimination been practiced against them, or, if such positions are not available, to substantially equivalent positions, with- out prejudice to the seniority or other rights they would have acquired in the absence of such discrimination. (c) Make whole Raymond Smith and William Castelluccio for any loss of pay they may have suffered as a result of the Respondents' discrimination against them, in the manner set forth in the section entitled "The Remedy" of the Decision herein. (d) Refund to any employees or former employees of the Respond- ent Malleable from whose wages the Respondents have deducted or withheld membership dues or other monies since September 21, 1954, for the benefit of Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, the sums of money so deducted. (e) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the sums to be refunded to the individuals entitled to such monies and the amounts of back pay due and the rights of employment under the terms of this Order. (f) Post at the plants of the Respondents Appleton Electric Com- pany in the Chicago area, and the Illinois Malleable Iron Company, 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of the notice attached hereto marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by the Respondents' representatives, be posted by the Respondents immediately upon receipt thereof and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, as to what steps the Respondents have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint against the Respond- ents with respect to the allegations of discrimination against Leon Hill be, and it hereby is, dismissed. MEMBER BEAN, dissenting in part : I agree with my colleagues of the majority that the Respondents violated Section 8 (a) (1) and (3) of the Act. However, I do not agree with the finding that the Respondents unlawfully assisted IBEW, within the meaning of Section 8 (a) (2) of the Act. It would clearly be lawful for Appleton to extend the IBEW con- tract to employees hired after September 21, 1954, if the Board were to find them an accretion to the existing unit.11 The employees hired to operate the plant acquired from Malleable, I believe, constitute such an accretion. The Malleable plant adjoins Appleton's main plant in Chicago; all Appleton's Chicago employees, including those at the former Malleable plant, are under centralized control with re- spect to both production and labor relations; although Malleable is nominally a separate corporation, it is a wholly owned subsidiary of Appleton, and both it and Appleton have the same officers and di- rectors and admittedly constitute a single employer; both companies have a uniform method for determining wage rates and classifications and for hiring and discharging employees; the foundry and other operations at the former Malleable plant have been integrated with Appleton's other Chicago plants, virtually the entire product of the former Malleable plant being utilized by the other Appleton plants; Appleton handles all sales, accounting, maintenance, time-keeping, purchasing, and grievances for both companies; and the new em- ployees number only 142 as against over 1,000 employees in Apple- ton's other Chicago operations. In these circumstances, and if the issue were whether the Board should henceforth view the new em- 10 In the event that this Older is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 11 Borg-Warner Corporation, 113 NLRB 152, 154. ILLINOIS MALLEABLE IRON COMPANY 459 ployees as but an accretion to the existing unit, I would find that they should be so viewed.12 But even if the new employees do not constitute an accretion within the meaning of the representation cases cited in footnote 12, it should be remembered that this case is not a representation- case designed to determine prospective rights and obligations. It is an adjudication of the lawfulness of Appleton's past conduct. The facts show that Appleton, acting through its assistant to the person- nel manager, proposed to hire about 142 new employees to operate the idle plant it had added on September 21, 1954, to its existing opera- tions. But Appleton at that time had seven times as many employees working in its other plants in the same Chicago area, and these em- ployees were all in a single collective-bargaining unit represented by IBEW and covered by a union-security agreement which the General Counsel does not claim to be unlawful. Moreover, the agreement expressly provided that it should extend to plants thereafter acquired in the Chicago area. Appleton was thus faced with the alternative of applying, or refusing to apply, the agreement to the small group of new employees. It chose the alternative of honoring the agree- ment-a choice it made in good faith so far as the record shows. Accordingly, it required the new employees to comply with the law- ful union-security provisions of the agreement. I cannot find, as the majority do, that Appleton thereby violated the Act. At best Appleton was confronted with a difficult alternative : Should it refuse to apply the agreement to the new employees-a minority group only one-seventh the size of the preexisting unit? Or should it continue to recognize IBEW for the overall unit? Re- gardless of whether the Board would have decided that, prospec- tively, the new employees should not be included in the existing unit -without first voting for inclusion in a separate election-a decision v. hich could have been made only in a representation case, and a decision which necessarily means that the larger unit is not inappro- priate-I cannot agree with the majority that Appleton was wrong in regarding this one-seventh increase in its personnel as not impair- ing the appropriateness of the existing single unit. My view is not altered by the fact that the plant in question had formerly been operated with employees represented by UAW. I note particularly that the General Counsel does not attack the legality of the closing of that plant and the termination of the employees working there on September 21, 1954. Nor can I perceive any sinister significance in the fact that Appleton reopened the closed plant and then operated it through a subsidiary corporation rather than directly, or in the u Hooker Electrochemical Company, 116 NLRB 1393; Solar Manufacturing Company, 110 NLRB 1188; Bulova Research and Development Laboratories , Inc., 110 NLRB 1036; American Cast Products, Inc., 110 NLRB 705; Birdsboro Armorcast, Inc., 101 NLRB 22. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further fact that Appleton staffed the plant largely with idle work- ers who earlier had been employed by an independent corporation bearing the same name as the new subsidiary. When adjudicating past conduct, I think the Board properly takes a somewhat different view of the term "accretion" from the prospec- tive meaning in representation cases. In Borg-Warner, supra-a case that seems to me indistinguishable in principle from the present one- the employer established a new department to manufacture a new product in a separate building, and advised the applicants for employ- ment there that they were to be included in the existing union-security contract. The Trial Examiner found that the new group of employ- ees were entitled to a separate election, and that the employer unlaw- fully assisted the contracting union by covering them in without a separate election. But the Board reversed the Trial Examiner, and dismissed the 8 (a) (2) complaint. I would do the same thing here. The majority cite but two supporting cases, Byron-Jackson Divi- sion, etc. (117 NLRB 1613) and The Item Company (113 NLRB 67). However, Byron-Jackson is a clearly inapplicable case, presenting an entirely different issue : the validity of an employer's defense to a union's request for an election to determine rights in futuro. More- over, compare the contrary result reached in the more recent Hooker Electrochemical case, supra." As for Item, the majority relies on a dictum not necessary to a decision of that case, and in addition the dictum has been in effect superseded by more recent holding in Borg- Warner, supra. For the foregoing reasons I would not find that the Respondents unlawfully assisted IBEW by applying the existing agreement to the new employees. CHAIRMAN LEEDOM, dissenting in part : I agree with Member Bean's opinion, except insofar as he makes a distinction in the meaning of the term "accretion" as between the adjudication of past conduct and the determination of prospective rights and obligations. I would merely find that the new employees here constituted an accretion under the Board's established principles. 13 See also J. W. Rem Company, 115 NLRB 775, where the employer, upon acquiring new plants to perform operations previously contracted out, created new divisions, increased the number of employees by 45 percent to staff them, and then (without a separate elec- tion) refused to continue bargaining collectively with the statutory representative of his employees. The Board found that this conduct violated the Act. APPENDIX 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, as amended, we hereby notify our employees that: ILLINOIS MALLEABLE IRON COMPANY 461 WE WILL NOT assist or support Local 1031, International Broth- erhood of Electrical Workers, AFL-CIO, or any other labor or- ganization, by requiring employees of Illinois Malleable Iron Company to become or remain members of said labor organiza- tion, except as authorized by Section 8 (a) (3) of the Act. WE WILL NOT recognize Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, as the bargaining represelita- tive of employees of Illinois Malleable Iron Company, unless and until said organization shall have been duly certified by the Board as the representative of such employees. WE WILL NOT give effect to our collective-bargaining contracts with the said Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, or to any extensions, renewals, modifica- tions, supplements or any superseding agreements thereof, inso- far as such agreements are applied to employees of the Illinois Malleable Iron Company, unless and until said Local 1031, In- ternational Brotherhood of Electrical Workers, AFL-CIO, has been duly certified by the Board as the representative of said employees of the Illinois Malleable Iron Company, but we shall not vary or abandon the wages, hours, or conditions of employ- ment as now in effect in our relationship with said employees, or prejudice the assertion by said employees of Illinois Malleable Iron Company of any rights or privileges they may have under the aforesaid contract. WE WILL NOT encourage membership in Local 1031, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, or discour- age membership in Local No. 788, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or in any other labor organization of our employees, by refusing to hire applicants for employment, or dis- charging employees, or by any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment, except to the extent per- mitted by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees of Illinois Malleable Iron Company in the ex- ercise of their right to self-organization, to form, join, or assist Local 788, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives 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 agree- 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL withdraw and withhold all recognition from Local 1031, International Brotherhood of Electrical Workers, AFL- CIO, as the representative of the employees of Illinois Malleable Iron Company for the purpose of collective bargaining concern- ing grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment, unless and until said union is duly certified as such representative by the Board. WE WILL offer Raymond Smith and William Castelluccio im- mediate and full reinstatement to the positions in which they would have been hired had no discrimination been practiced against them, or if such positions are not available, to substantially equivalent positions, without prejudice to the seniority or other rights they would have acquired in the absence of such discrimina- tion. WE WILL refund to any employees or former employees of the Illinois Malleable Iron Company from whose wages we have deducted or withheld membership dues or other monies since September 21, X954, for the benefit of Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, the sums of money so deducted. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization , except as such right is affected by an agreement as authorized in Section 8 (a) (3) of the Act. ILLINOIS MALLEABLE IRON COMPANY, Employer. Dated---------------- By--------------------- ---------------- (Repr-entative ) (Title) APPLETON ELECTRIC COMPANY, Employer. Dated---------------- By------------------------------------- (Representative )' (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed November 15, 1954, and a supplemental charge filed December 3, 1954, by Local No. 788, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO , herein called the UAW,' alleging that Illinois Malleable Iron Company (Respondent Malleable), 1 The charge is signed by the UAW as an affiliate of the CIO, the charge involves Local 1031 IBEW designated therein as an affiliate of the AFL Since the charge was filed, the CIO and AFL have been amalgamated into the AFL-CIO The complaint designates the UAW and the IBEW as affiliated with the AFL-CIO ILLINOIS MALLEABLE IRON COMPANY 463 and Appleton Electric Company (Respondent Appleton), and hereafter jointly some- times called the Respondents, have engaged in and are now engaging in certain unfair labor practices affecting commerce as set forth and defined in the National Labor Relations Act, as amended, 61 Stat. 136, hereafter called the Act, the General Counsel of the National Labor Relations Board (Board), by the Regional Director for the Thirteenth Region, issued a complaint dated June 1, 1956. Copies of the charge and of the supplemental charge were duly served on the Respondents on November 16, 1954, and on or about December 3, 1954. The complaint alleged that the Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices the complaint as issued alleged, in substance, that on September 21, 1954, Respondent Appleton bought a controlling interest in Respondent Malleable and that: Respondent Malleable is a subsidiary of Respondent Appleton and is now and continuously since September 21, 1954, has been an integral part of Respond- ent Appleton such that the two corporations, Respondents herein, are and continuously since September 21, 1954, have been for all purposes relevant to the Act a single employer; that prior to its sale to Respondent Appleton, Illinois Malleable 2 recognized, bargained with, and entered into contracts with, the UAW as the collective-bar- gaining representative of its production and maintenance employees in a unit appro- priate for such purposes within the meaning of Sections 9 (a) and 8 (a) (3) of the Act; and that at the time of and prior to the sale Respondent Appleton had notice that the UAW represented Respondent Malleable's employees. The complaint, however, alleged that: Malleable's last contract with the UAW provided for its termination when Respondent Malleable's manufacturing operations were completed; Respond- ent Malleable ceased its independent manufacturing operations and terminated its employees at the close of business on September 17, 1954.3 The complaint further alleges, with respect to the unfair labor practices, that on September 22, 1954, Respondents executed a collective-bargaining contract between Respondent Malleable as a subsidiary of Respondent Appleton and the IBEW,4 by the terms of which the Respondents recognized the IBEW as the collective-bar- gaining agent for the production and maintenance employees of Respondent Malle- able as a subsidiary of Respondent Appleton and agreed, among other things, (1) to require as a condition of retaining employment that all new employees of Re- spondent Malleable become and remain members in good standing of the IBEW after 30 days of employment and that all other employees become and remain members of the IBEW 30 days after its signing, and (2) to check off IBEW dues and initiation fees; and that continuously and at all times material since September 22, 1956, Respondents have recognized the IBEW as the collective-bargaining rep- resentative of the foundry employees of Respondent Malleable and have enforced and effected the aforesaid contract and all its terms and provisions with respect to the foundry employees although these employees have never at any time chosen IBEW as their collective-bargaining representative. It is further alleged that continuously from September 22, 1954, the Respondents have illegally encouraged membership in the IBEW, warned and threatened prospec- tive employees against joining the UAW, threatened to close the Respondent Malle- able's plant if the employees again were to be represented by the UAW, and by other conduct gave illegal assistance to the IBEW, and that after the opening of the plant of the Respondent Malleable: Respondents, by their officers, supervisors, agents, and representatives, while engaged in the operations described . . . above, failed to hire, employ, recall, rehire, or reinstate each of the employees named below on or about the date appearing opposite his name and continuously to date because of Respondents' 2 When so used the designation "Illinois Malleable" refers to the Illinois Malleable Iron Company prior to its being acquired by the Respondent Appleton I It is not contended that the UAW contract has any force or effect at the present time by reason of the fact that the corporate entity of Illinois Malleable was not extinguished by the sale of its stock to the Respondent Appleton 4 Local 1081 International Brotherhood of Electrical Workers, AFL (AFL-CIO), herein called the IBEW. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge or suspicion that each of these employees engaged in or advocated concerted activity for the purpose of collective bargaining or other mutual aid or protection not approved by IBEW: Raymond Smith________________________________ November 2, 1954 William Castelluccio -------------------------- November 15, 1954 Leon Hill ------------------------------------- November 23, 1954 The Respondents filed a joint answer which admitted the Board's jurisdiction and likewise admitted that Respondent Appleton bought a controlling interest in Respondent Malleable but denied that Appleton had any notice that the UAW rep- resented or desired to represent any of the Malleable employees after September 17, 1954. The answer avers: Respondent, Appleton Electric Company, alleges that since September 22, 1954, it has closed down the majority of operations formerly conducted by Illinois Malleable Iron Company and has completely integrated with its own operations the few operations which have since been conducted in buildings formerly owned by Illinois Malleable Iron Company; that respondent, in kindness to employees who lost jobs when the Illinois Malleable Iron Company closed and ceased doing business, has attempted to place as many of said employees as possible in its Appleton Electric Company operations. The Respondents' answer admits that on September 22, 1954, they executed a col- lective-bargaining contract with IBEW covering the Respondent Malleable employees: (a) . . but state that prior to September 22nd, 1954, and prior to the time when it entered into the said supplemental agreement, the said Appleton Electric Company had an agreement with IBEW wherein the said company rec- ognized the said IBEW as the exclusive collective bargaining agent for all the production and maintenance employees of the respondent, Appleton Electric Company, and any and all of Appleton's subsidiaries, in the Greater Chicago Metropolitan area. (b) Deny that it has recognized IBEW as its collective bargaining agent of the foundry employees and assert that the foundry employees are an integral and inseparable part of the unit of production and maintenance employees, that IBEW represents all of the employees in said unit, without distinction as to the building in which they work, or whether they were formerly employed by any other employer... . The Respondents deny that they have engaged in any of the alleged unfair labor practices. Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, the Party to the Contract, likewise filed an answer in which it averred: that for many years prior to September, 1954, International Brotherhood of Electrical Workers, through its affiliated locals 134 and 1031, represented all production and maintenance employees of respondent Appleton employed in all of its plants in the Greater Chicago Metropolitan area, in a single bar- gaining unit . On September 1, 1954, respondent Local 1031 entered into a collective bargaining agreement with respondent Appleton, pursuant to which respondent Appleton recognized Local 1031 "as the sole and exclusive collective bargaining agent for all of the Company's production and maintenance employees located at 1710 Wellington and 4600 Belle Plaine and any future plants or divisions located in the Greater Chicago Metropolitan Area, exclud- ing executives and non-working supervisors, office, clerical and sales employees, engineering and laboratory employees, foremen, guards, outside truck drivers and journeyman craftsmen." [Emphasis supplied.] [The] respondent [IBEW] alleges that all employees hired by respondent Appleton on and after September 22, 1954, became an integral part and parcel of the bargaining unit described . . . above. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner at Chicago, Illinois, on September 27 through October 4, 1956, and October 15 through October 19, 1956. The Trial Examiner permitted the Charging Party and the Party to the Contract to participate fully in the proceedings. The General Counsel, the Respondents, and the Unions involved were repre- sented by counsel, who are hereinafter referred to in the names of their principals. I ILLINOIS MALLEABLE IRON COMPANY 465 All the parties participated in the hearing , were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs, proposed findings of fact, and conclusions of law with the Trial Examiner. Before any testimony was taken the Trial Examiner denied a motion by the General Counsel to amend the complaint. The parties entered into a stipulation of fact on certain matters. Certain testi- mony was taken over objection and subject to motions to strike , final ruling being reserved until the issuing of this report. The stipulation above referred to and the reserved rulings are hereafter treated under the heading "Procedural Matters." On October 17, at the opening of the afternoon session of the hearing , the Respond- ents filed a motion in writing with the Trial Examiner asking dismissal of the com- plaint for the reasons: 1. That the Trustees of the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, with which Local 788 is affiliated, did not file Non-Communist affidavits on or before June 1, 1956, the date of the complaint herein; said Trustees are officers of said Inter- national United Auto Workers AFL-CIO within the meaning of Section 9 (h) of the National Labor Relations Act. 2. That officers of the Foundry Department, UAW-AFL-CIO, with which the charging party is affiliated, did not file Non-Communist affidavits on or before June 1, 1956. Said Foundry Department represents members of UAW, and is a labor organization within the meaning of the National Labor Relations Act. The Trial Examiner denied the motion stating: Let me say that it is my understanding that according to established Board practice, issues pertaining to compliance matters which do not involve interpre- tation of statutory language only , cannot be litigated in an unfair labor practice hearing.5 The Respondents stated on the record that they would appeal the Trial Examiner's ruling diiectly to the Board and thereafter the Respondents by telegram requested special permission of the Board to appeal pursuant to the Board's Rules and Regu- lations. The Board denied such permission but stated that the issue could be raised by the Respondents before final decision. Procedural Matters All the parties entered into a stipulation of fact which was incorporated in the record and also filed as an exhibit. The stipulation also referred to certain exhibits as a part thereof, numbered and admitted as "Stipulation Exhibits." However, the General Counsel and the Charging Party, on the record, reserved the right to object to certain paragraphs of the stipulation as they saw fit and all parties reserved the right to present testimony with respect to matters covered therein. The General Counsel (joined by the Charging Party) objected to paragraphs num- bered 2, 3, 6, 94, 95, 96, 97, 98, and 99 as irrelevant and immaterial, as relating to the Respondent's dealings with a union not a party to the proceeding. The General Counsel also objected to receiving in evidence "Stipulation Exhibits" numbered 1, 2, 3, and 24 as relating to the Respondents' dealings with a union not a party to these proceedings. The Trial Examiner reserved ruling, and conditionally admitted the material and testimony thereto. Upon due consideration the Trial Examiner is convinced that the paragraphs of the stipulation as well as the stipulation exhibits all above mentioned which relate to matters occurring in 1953 are in no way germane to the issues herein and therefore grants the General Counsel's motion as to paragraphs 2, 3, 6, 94, 95, 96, 97, 98, and 99 of the above-mentioned stipulation and stipulation exhibits 1, 2, 3, and 24 as a part thereof. In connection with the above ruling the Trial Examiner now strikes any testimony taken relating to the subject matter covered by paragraphs 2, 3, 6, 94, 95, 96, 97, 98, and 99 of the stipulation above referred to. 5 The Trial Examiner can add nothing to the above statement except to cite the familiar Desaiilniers & Co, 115 NLRB 1025, and Mohawk Business Machines Corporation, 116 NLRB 248. 4 83142-59-vol. 120-31 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel (joined by the Charging Party) stated on the record that as to all paragraphs in the stipulation which are prefixed by the statement that "if a certain named individual were called to testify by the Respondents or the Party to the Contract] such party would testify as thereafter stated," the General Counsel makes "no concession as to credibility or veracity." Evidence on such paragraphs was taken and is hereafter noted. As to paragraphs of this nature in the stipulation which are not covered by oral testimony, the Trial Examiner does not treat them as binding on the adverse party. The General Counsel specifically mentioned paragraphs 91 through 93 of the stipulation which relate to "the testimony to be offered by David A. Canel, counsel for Respondents, if called to testify." Mr. Canel, who was the attorney for the Respondents and who is also a member of the board of directors of the Respondent Appleton was called to testify on matters set out in paragraphs 91 through 93 of the stipulation. The General Counsel objected to testimony of this nature and an offer of proof was made to the effect that Mr. Canel would testify on discussions between officials of Appleton and Canel at the time Appleton considered purchasing Illinois Malleable; that the decision was to buy all of Illinois Malleable's stock in order to take advantage of Illinois Malleable's losses for tax purposes; the final purchase, the Respondent's desire to purchase other adjacent real estate; the alleged desire to integrate the operations of Malleable with those of Appleton (this resolution being made immediately after the purchase), the fact that just at the time of the hearing (2 years after the purchase), some of the operations of Malleable were completely removed to Appleton's plants; 6 that Canel discussed with Appleton officials the future operations of Malleable, discussed the contract Appleton entered into with IBEW before the acquisition of Illinois Mal- leable; the change in the makeup of Malleable's board of directors after the purchase and other similar matters. The Trial Examiner sustained the objection of the General Counsel; the Respond- ents made an offer of proof, which the Trial Examiner rejected. The testimony offered by David A. Canel in effect is that set out in paragraphs 91 through 93. The Trial Examiner does not in the least question Mr. Canel's veracity in his dual capacity of offered witness and attorney, but, after further due consideration is still convinced that the rejected testimony is entirely immaterial to any issue herein and does not consider paragraphs 91, 92, and 93 of the stipulation as binding on the General Counsel. Over the objection of the General Counsel (joined by the Charging Party) the Trial Examiner admitted, subject to a motion to strike at the close, certain testimony regarding the transfer of membership of certain employees of Respondent Appleton from an organization identified as Local 134 to membership in Local 1031, IBEW. This transfer of membership took place in November 1953, approximately 1 year before Respondent Appleton acquired Illinois Malleable. The evidence related to the preparation and circulation of certain petitions in connection with the transfer of membership At the conclusion of the testimony the General Counsel moved to strike, the Trial Examiner reserved ruling. The Trial Examiner now grants the motion to strike all the testimony :elating to the transfer of membership from 134 to 1031 IBEW in November 1953, by certain employees of the Respondent Appleton, and specifically strikes the testimony of Rose Mary Rooney, Emaline Ralph, George Martinkus, William Martinkus, Andrew Sosko, and Stanley Lang, relating to the above-mentioned incident. In connection with the above-mentioned testimony the Trial Examiner admitted, for a limited purpose, only two documents, marked "Local 1031, Exhibit No. 1" and "Local 1031, Exhibit No. 2." The documents are hereby rejected and ordered considered as being in the file of rejected exhibits. Other reserved rulings are disposed of by the findings hereafter made. 9 The Respondent permitted the attorney for the Party to the Contract to put questions. to Canel. The following is from such examination : Q Is it fair to say that when you said that the foundry would be closed down, that what was intended by that was the closing down of the casting and pouring opera- tions, is that correct9-A That is 100 per cent correct Q That was my question -A. All right. Q. And those are the operations which continue at the present time since Septem- ber 27, 1956 in the Appleton Company's foundry in Milwaukee -A. That is correct. No operations were removed from Malleable to Appleton from September 21, 1954, until September 27, 1956. ILLINOIS MALLEABLE IRON COMPANY 467 Closing Motions After all the testimony was taken the Party to the Contract moved to dismiss the complaint, and the General Counsel renewed a motion to amend the complaint. The Trial Examiner denied the motions. The Trial Examiner granted unopposed motions to conform all the pleadings to the proof, limited to matters of form. A date was set for the filing of briefs with the Trial Examiner.? All the parties made short statements in lieu of oral argument. Briefs have been received from all the parties, the Respondents and the IBEW filing a joint brief. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The following allegations in the complaint are not disputed: (a) Respondent Appleton is, and at all times material has been, a corpora- tion organized under and existing by virtue of laws of the State of Illinois; it maintains offices in Chicago, Illinois, and operates plants in Chicago, Illinois, and Milwaukee, Wisconsin, where it manufactures, sells and distributes elec- trical fittings and kindred products. (b) During the year 1954, Respondent Appleton in the course and conduct of its business operations purchased, transferred and delivered to its Illinois plants goods, materials, and supplies valued at in excess of $1,000,000 of which approximately 20 percent was transported to Illinois in interstate commerce from places outside Illinois; during the year 1954, Respondent Appleton in the course and conduct of its business operations manufactured at its Illinois plants products valued at in excess of $1,000,000 of which approximately 20 percent was sold and shipped from Illinois to places outside Illinois. (c) Respondent Malleable is and at all times material has been a corpora- tion organized under and existing by virtue of the laws of Illinois; at its foundry in Chicago, Illinois, it manufactures malleable castings. Respondent Malleable is and since September 21, 1954, has been a subsidiary of Respondent Appleton operated, controlled, and substantially owned by Respondent Appleton. (d) In the calender year 1954, Respondent Malleable manufactured prod- ucts valued in excess of $50,000.00 which were sold and shipped from its plant in Chicago, Illinois directly to points outside the State of Illinois and/or caused raw materials valued in excess of $100,000.00 to be shipped from points out- side the State of Illinois directly to its plant in Chicago, Illinois, for use in its manufacture of malleable castings. (e) Respondent Malleable is a subsidiary of Respondent Appleton and is now and continuously since September 21, 1954, has been an integral part of Respondent Appleton, such that the two corporations, Respondents herein, are and continuously since September 21, 1954, have been for all purposes relevant to the Act a single employer. if. THE ORGANIZATIONS INVOLVED (a) Local No. 788, International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, AFL-CIO, the Charging Party, and herein called the UAW, is and at all times material herein has been a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Re- spondents to membership. ,(b) Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, the Party to the Contract, herein called the IBEW, is and at all times material herein has been a labor organization within the meaning of Section 2 (5) of the Act, and admits employees of the Respondents to membership. 4 The Trial Examiner set November 9 as the return day for briefs. On request of the Respondents made on November 6, the Chief Trial Examiner extended the time for filing to December 3, 1956, and again on November 28 extended the time to December 10, and finally on December 4 extended it to December 26, 1956. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Illegal support of a labor organization The gravamen of the complaint is that the Respondents, and each of them, gave illegal support to a labor organization and did thereby engage in and are engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. In support of this contention the stipulation (hereinabove mentioned) and testi- mony of witnesses set forth that: The employees of Illinois Malleable in an appropriate unit consisting of "all production and maintenance employees" were represented since 1940 by the UAW which was then certified as their bargaining representative; 8 continuously from 1940 to September 17, 1954, Illinois Malleable and the UAW were parties to a collective-bargaining contract covering said employees; in July 1954 during contract negotiations Illinois Malleable notified the UAW that it was planning to close its plant; Illinois Malleable's last contract with the UAW provided for its termination when its manufacturing operations were completed; Illinois Malleable ceased its independent manufacturing operations and terminated its employees at the close of business on September 17, 1954. The General Counsel further stipulated that the Respondent Appleton purchased 99.8 percent of the stock of Illinois Malleable on September 21, 1954. After the transfer of stock to Appleton, Illinois Malleable continued to exist and still exists as a corporate entity under the laws of Illinois. Its name, "Illinois Malleable Iron Company," has not been changed in its registration with the Illinois Secretary of State. Stanley Solak testified that he was first hired by Illinois Malleable in 1934 as an inspector and sorter in the grinding department, in 1935 went into the foundry as a laborer, sandcutter, and industrial truckdriver, where he remained until 1942, mean- while in 1940 being elected president of Local 788 UAW. From 1942 to 1945, Solak was in the Armed Services, returning to Malleable's employ in 1945. In 1946 he was reelected president of the UAW local and also to membership on its bargaining committee. In 1948, Solak was elected to an office in the International Union's Foundry Council, which office he held until April 1949. Solak further testified: Then, in October, 1949, I was offered the position, personnel employment manager with Illinois Malleable Iron Company, which I accepted and I held that position until I was terminated on September 17, 1954. After the Respondent Appleton acquired Illinois Malleable it employed Solak on September 21, 1954. Solak testified: My duties were to assist Ray Shaw. Ray Shaw was going to be responsible for the hiring of the entire organization, including Illinois Malleable. I was to assist him on any personnel he was seeking to work for Illinois Malleable. Solak further testified he remained in the department until October 1, 1955, when he was made general foreman of the foundry department, which means the foundry of the Respondent Malleable. The parties stipulated 8 that: As jobs became available at Illinois after September 21, 1954, Personnel Director Robert Neale called in Stanley Solak and asked him to recommend former Illinois employees for the available jobs and ask them to come in and apply for jobs. Solak made the decision as to whom to notify and then notified them by telephone, post card, telegram, or word of mouth. Solak testified that he made the first recommendations of former employees of Malleable and participated in the interviews of such applicants, together with Raymond Shaw, on September 22, 1954,10 when the Illinois Malleable plant was being reopened after its acquisition by Appleton, and that he continued to recom- 813-RC-608. e The stipulation so often referred to herein was drawn and tendered to the General Counsel by the Respondents, it being admitted that the Charging Party was consulted while the stipulation was being framed. The hearing was recessed from October' 4 to October 15 to permit the parties to discuss the stipulation. As found herein the stipula- tion was signed with various reservations. 10 Apparently on September 22, 1954, Solak was the only employee of Malleable until those he recommended were hired. ILLINOIS MALLEABLE IRON COMPANY 469 mend applicants for employment until December. According to Solak, as part of each interview of an applicant for employment he (Solak) . also explained to him there is a master contract here with Appleton Electric at the plant, at any future plant in the greater metropolitan area of Chicago. They would be required to become members of that organization after 30 days. There would not be any dues deducted until after 30 days. Solak testified that he would then tell the applicant "that at their convenience we have here an assignment for the union check-off" and: He was asked if he wanted to sign it. Upon doing so, they were signed and he was given one slip and the other slips were turned over to one of the girls in the personnel department. TRIAL EXAMINER: Do you remember whether any employees you gave a check-off slip to failed or refused to sign? The WITNESS: No, sir. Never questioned me. Solak further testified that when he was employed by Neale on September 21, Neale pointed out "certain benefits" in the IBEW contract which he wanted Solak to explain in interviews, "if we were going to call Illinois Malleable employees back." According to Solak he had not read the entire contract, only those portions pointed out by Neale, and during his interviews of applicants showed them only the "master contract" with the IBEW "covering any future plants" and explained its benefits. Raymond Shaw, who had charge of the employment for reopening the Illinois Malleable facility, testified on cross-examination by the General Counsel: Q. (By Miss Engstrom.) So you were relying on his [Solak's] experience at Illinois Malleable before September 22, 1954.-A. Relying on his experience before September? Q. Yes, as personnel manager there.-A. Yes. Frank H. Thomas testified that prior to the closing down of the Illinois Malleable plant he had been employed there from January 3, 1943, to July 1954; that on Novem- ber 1, 1954, after the plant had been acquired by the Respondent Appleton he re- ceived a telephone call from Solak who told him to report the next day if he were interested in a job; and that he came to the Respondent's employment office on November 2 where he saw and spoke only to Solak. According to Thomas: Well, he told me there wasn't any more Malleable Iron Company and that if I would be interested in coming back to work I would be working for the Apple- ton Electric Company and that the Appleton Electric Company did not want any part of the CIO. Before they would let the CIO come back in they probably would close down and make a parking lot out of it. Thomas also testified: He says, Appleton got a union, IBEW, and that it was a good union and would I be willing to work under those terms. I says, "Yes." According to Thomas, Solak also gave him a dues checkoff authorization for the IBEW which he signed and so became a member of Local 1031, IBEW. Thomas was hired. Albinus South testified that he was employed by Illinois Malleable from January 13, 1941, to "vacation time" 1954; that he was called by Solak by telephone and told to "come to his office the next morning" which was November 2, 1954; and that he came to the employment office of the Respondent Appleton and spoke to Solak who asked him if he wanted work and told him "there was another union in." He further testified: Well, he asked me, "Did I want to go along with this other union being in the shop?" And I told him, "It didn't make no difference; I wanted to work." According to South, he was given "papers" to sign; he also testified: Well, I remember it was brought up in some way that this other union was definitely out, and if there was anybody tried to-you know, communicate with any of the other union officials, that the place belonged to Appleton now and they would just tear the whole place down and make a parking lot of it if the boys insisted on trying to bring the other union back in. South testified the "other union" referred to was the "CIO" (UAW). South was hired as a grinder for work in the Respondent Malleable's plant, the same job he had from 1941 to 1954. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snag Morrison testified that he was employed by Illinois Malleable from May 1944 to July 1954 as a grinder. Morrison testified that in November 1954 (after Illinois Malleable had been acquired by the Respondent Appleton) he received a post card from Solak which "told me to report for work, something like that" and he reported to the office where he was interviewed by Solak. According to Morrison: He asked me did I want to work by the rule and so I didn't know what his rule was until he explained it to me. He told me there wasn't any more CIO out there. He said, "We got a good union and it's much better than the CIO," and so he asked me was I willing to work. I said there wasn't nothing else for me to say so I said yes , you see, Morrison further testifi@d that during th@ course of the conversation Solak; He said he didn't want us to be messing around the union hall if we are to work out there-you know, being around Leon Hill. Hill was the president of Local 788, UAW. Morrison testified that he was hired as a grinder for work at the Respondent Malleable's plant. He voluntarily quit in March 1955. Morrison testified: Q. (By Miss Engstrom.) Did you ever join the IBEW?-A. Yes, Ma'am I know I did because the dues was taken out of the checks. Talmage Walker testified that he worked at Illinois Malleable from February 1945 to April 8, 1954, at which time he was discharged. Walker further testified that in October 1954 he received a letter from Solak offering him employment with the Respondent Malleable; he called at the plant and spoke to Solak who employed him but who first told him: . If you join with the Appleton Company, you have to join under another union... . Stanley Powers testified that: He was employed by Illinois Malleable from No- vember 1938 to July 16, 1954; on October 4, 1954, he applied for work with Respondent Appleton and obtained a job as a janitor in the Appleton Electric plant where he worked for about 3 weeks and then asked for a transfer to the Respondent Malleable's plant; prior to his employment in the Respondent Malleable's plant he signed a checkoff authorization for Local 1031 IBEW given him by Shaw who hired him; and when he was transferred to the plant of Respondent Malleable he was given a checkoff slip for 1031 IBEW by Solak, who told him "this is the union you will be working with," and that: I told Mr. Solak that I had already filled one out like that. I said that it is the same union, same local. I said, "What am I filling out the second one for?" He said, "Well, that is the way it is got to be done." Solak denied the testimony of Frank H. Thomas with respect to Solak's interview of Thomas when the latter was hired for work in the Respondent Malleable's plant. He testified: Q. Mr. Witness, you were present here at this hearing on September 28, 1956, when a witness named Frank H. Thomas was on the stand, and Mr. Thomas made these answers to questions, at page 194 of the transcript, and I will read them to you. Thomas' testimony was then read to Solak who was asked if he made the statement attributed to him; he replied, "No, sir, I never made that statement." The Respondent's attorney read to Solak the testimony of Albinus South regard- ing his interview with Solak, reading, inter alia, that Solak said: . that the place belonged to Appleton now and they would just tear the whole place down tiiU uiaiin a p Lfkitig lot Out Ot it if iltm hiiye insisted chit trying to bring the bthOr 1tnion Haek in. Solak was asked, "Did you make those statements at that time?" His answer was, "Emphatically no." Solak denied the testimony of Snag Morrison; again the Respondent read the testimony of the witness to Solak and asked if Solak made the statements attributed to him. The record reads: Q. (By Mr. Canel.) [reading] "What else did he say?-A. He said he didn't want us to be messing around the union hall if we are to work out there. You ILLINOIS MALLEABLE IRON COMPANY 471 know, being around Leon Hill. Q. Did he say anything else? A. He said if we would be messing around with Leon Hill, we wouldn't have any job." Did you make those statements? A. Emphatically no. According to Solak, in each instance he told the applicant of the existence of the "master contract" between the Respondent Appleton and the IBEW, and "thor- oughly explained" that after 30 days he (the applicant) would be required to join the IBEW, and also that he gave each applicant a dues checkoff authorization slip "for his convenience to sign his assignment." The Trial Examiner does not credit Solak's account of his interviews with Thomas, South, and Morrison. Throughout his entire testimony it appeared to the Trial Examiner that Solak went much further in support of his employer's contentions than merely to slant his testimony in a favorable manner. The Trial Examiner is convinced that Solak not only sought to conceal facts by wordy irrelevant volunteered statements but at times deliberately twisted the facts. At this point the Trial Examiner wishes to make it clear that he is not cavalierly rejecting Solak's testimony but will at a later point in this report cite examples which compel the Trial Examiner's conclusion as to the witness' veracity. Solak was not asked to deny the testimony of Talmage Walker and Stanley Powers. On all the evidence considered as a whole and from his observation of the wit- nesses, the Trial Examiner credits the testimony of Frank H. Thomas, Albinus South, Morrison, Talmage Walker, and Stanley Powers, relating to their interviews with Stanley Solak, and finds that while interviewing them for employment with the Respondent Malleable he made the statements attributed to him by Thomas, South, Morrison, Walker, and Powers. The Respondents admit that on and after September 21, 1954, the applicants for employment with Respondent Malleable were informed by them that according to the terms of the contract between Appleton and IBEW, membership in IBEW was a condition of employment at Malleable. In order to sustain their contention that they did not lend illegal assistance to the IBEW, the Respondents maintain that (1) the operations of the Respondent Malleable are completely integrated with those of the Respondent Appleton, which the Trial Examiner takes to mean that the former operations of Illinois Malleable Iron Company were completely absorbed in the operations of the Re- spondent Appleton, and (2) the Respondent Appleton was under a valid contract with the IBEW which covered the employees hired to carry on the operations of the Respondent Malleable, and that the Respondent Malleable employees are merely an accretion to the regular bargaining unit of the Respondent Appleton's employ- ees covered in an existing collective-bargaining agreement. The Party to the Contract, which referred to itself in its pleading and throughout the hearing as a "Respondent" (which of course it is not), stands on its September 1, 1954, contract with the Respondent Appleton, which contract covered "any future plants," Appleton having acquired Malleable after 11 September 1, 1954, and relies also on a supplemental contract dated September 22, 1954, covering the Malleable employees. With respect to the claim of integration the stipulation, hereinbefore referred to, as drawn by the Respondents and signed by the General Counsel (with objec- tions noted, reservations and the right to adduce testimony with respect thereto) re- cites at great length and with meticulous detail the location of the Respondent Appleton's main plant in Chicago with relation to the plant of Respondent Malleable, gives a description of its various buildings and properties; states that in 1953 Appleton "decided" that it should "if possible consolidate its operations"; that when the prop- erty of Illinois Malleable became available (in 1954) it decided to buy it and planned if it could acquire other property not owned by Malleable "to build a new mechanical foundry" and sell some of its other plants; however, the stipulation states that the desired property has not yet been bought, but that the Respondent Appleton "hopes to consummate the purchase by December 13, 1956," and estimates that the new foundry 12 will be completed in 1959; and that after Appleton acquired Malleable, the Respondents did not use all of the buildings but rented some to other companies and sold some in 1956. "Emphasis is added by the Trial Examiner. Such emphasis Is not in the text unless so stated. '9 Apparently still In contemplation. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The stipulation states that: Before Malleable was acquired by Appleton it produced malleable brass and grey iron fittings for the plumbing trade and that beginning September 22, 1954 (the day after Appleton acquired the plant), operations began at Malleable and certain Appleton castings were shipped from Milwaukee to the Malleable plant in Chicago for machining and leftover stock on hand was also ma- chined; some castings were sent from Milwaukee to Malleable to be annealed and some castings annealed at Malleable were sent to Appleton's main plant; and after the Malleable foundry began production some machinery changes were made the added machinery being shipped from other Appleton plants. The repairs as well as the very cleaning up is gone into in detail, the stipulation covering the fact that Appleton "replaced the lights and roof over the annealing section." The stipulation states that changes were made in the galvanizing section both in equipment and method; foundry patterns were changed, modified, and discarded and patterns were put in use that were suitable both at the Respondent Malleable plant and at the Appleton Milwaukee plant. The stipulation continues with the recital that the tapping and machining depart- ment of the plant of the Respondent Malleable was moved to Appleton' s main plant in 1955 and the carpenter shop at Appleton was installed in Illinois Malleable's buildings in 1955, but its personnel remained on Respondent Appleton's payroll, and that during 1955 certain of Malleable's buildings were no longer used for their original operations and the maintenance work of both Appleton (in Chicago) and Malleable were put in a common department. The stipulation states that: In November 1955 the Respondent Malleable's brass foundry was opened and of the brass products it now produces, 95 percent is transported to Appleton's main building for use in Appleton products; in April 1956 grinding and cleaning machinery from the Apple- ton plant in Milwaukee was shipped to the plant of Respondent Malleable, and here- after all grinding of castings wherever poured will be done at Malleable and the finished product sent to Appleton's main plant; and on September 27, 1956, the Respondent Malleable's foundry was closed and all casting will hereafter be done at Milwaukee. The stipulation also speaks of the stationery used by both Respondents, states that separate payroll accounts are maintained, gives the Respondents' telephone numbers, speaks of the cost accounting system, gives the location of the main office, the location of the time clocks, locker facilities, and cafeterias, locates the shower rooms in the Respondent Malleable's plant, and goes into great detail regarding matters which can only be described as irrelevantly trivial. The stipulation further states: Appleton and Illinois file a consolidated Federal Income Tax return in which the cost of operating Illinois is used as a deduction on the Illinois return. In all, the stipulation takes 38 pages of the transcript. After careful study of those portions of the stipulation, and the Respondents' brief which covers the same material, evidently designed to show that the operations of the Respondents (Malleable and Appleton) are completely integrated, the Trial Examiner concludes that the stipulation, as paraphrased above, builds a strawman, a well upholstered, in fact overstuffed figure, imposing in bulk but without weight. The Respondents sought to give life to their creation with testimony. In so doing, they tirelessly threshed the straw stuffing of their creature; however, in the opinion of the Trial Examiner, vigorous, vehement, and violent flailing pro- duced, not grain, but thin chaff, of no value to the Respondents' contention. As hereinabove recited the Trial Examiner refused to admit testimony of David A. Cane], the Respondents' attorney, some of which would have related to dealings of Appleton in 1952 with a union not party to the proceedings. The Trial Examiner likewise refused to admit testimony of Murry Mauritzen, production control manager of the Respondent Appleton, regarding Malleable's production prior to 1954, and also Mauritzen's visit to Malleable's plant after the purchase "to see what portions of the operations they could activate and fit into the program of production at Appleton." On examination by the General Counsel, Solak testified that on October 1, 1955, when he became general foreman of the Respondent Malleable operation, the plant consisted of "a regular foundry operation of moulding, core room, grinding, anneal- ing and galvanizing." He further testified that on November 1, 1955 (a year after the purchase of Malleable by Appleton), a brass foundry was opened at Malleable. As found herein, Solak testified that the moulding operations at the plant of Respond- ent Malleable were discontinued on Sentember 26, 1956. The grinding of rough castings made by Malleable was and still is done there. Solak testified that since April 1956 "Appleton castings from South Milwaukee" are shipped to the Malleable ILLINOIS MALLEABLE IRON COMPANY 473 plant for grinding and that such products are also annealed there, all the finished products being then taken to the main Appleton plant. After describing the operation of Malleable in detail, Solak testified as follows: TRIAL EXAMINER: Now, all of this product from the making of the mould, making of the core, the melting of the iron, the pouring of the iron, the clean- ing of the product, annealing of the product and then galvanizing of the product, that is all one-not one operation, but all of the operations are designed to produce a casting? The WITNESS: Yes, sir. The stipulation described the operations of the Respondent Malleable before it was acquired by Appleton as follows: Before September 21, 1954, Illinois engaged in the production of malleable brass and grey iron fittings for sale in the plumbing trade and in jobbing of malleable and grey iron products under contract. Grey iron, brass and mal- leable iron castings were made in Plants 2 and 3 and sent to Plant 1 for neces- sary tapping or machining. Testifying with respect to the contract between Illinois Malleable and the Charg- ing Party (UAW) in effect at the time Respondent Appleton acquired Malleable, Solak (who was handed the contract, and who had been in the personnel depart- ment of Illinois Malleable at the time of the sale), testified that no "craftsmen" were in the Illinois Malleable plant at the time; that pipefitters, tool and die makers, black- smiths, millwrights, and carpenters were not craftsmen but "skilled trade" because so referred to in the contract, being "considered what the local was trying to set up, a skilled trade group." He testified: TRIAL EXAMINER: But not a craftsman. The WITNESS: That's right. TRIAL EXAMINER: Thank you. Go ahead. Although of no consequence to the issues, the testimony is cited as a fair example of the evasive tactics of the witness. Other instances of seeming attempts to becloud matters were Solak's use of manufacturers' names for machines instead of giving a called-for description of functions and methods, as well as his often-volunteered testimony. The Trial Examiner received the impression that Solak attempted to picture the present operation of the Respondent Malleable's plant as being greatly different from the operation of Illinois Malleable prior to its sale. For example, Solak testified that the material now cast was different both as to product and as to manufacture because whereas Illinois Malleable cast only plumbing fixtures the Respondent Malleable casts both plumbing fixtures and some other fixtures that are adapted to both plumbing and electrical use. He plainly sought to create the impression that the grinding away of the rough spots on the casting is now a different operation because in addition to the former machines used in this work, new machinery brought from other Appleton plants has been added. In testifying as to the new machinery, Solak gave the name of the manufacturer of the machines rather than a description of the operation. As to one of the machines, Solak testified that it would require "six months to a year" to train an operator for it but admitted that the plant has only 1 machine of this type and only I operator for it. Solak testi- fied that there were 5 operators for 2 other machines "who must sharpen the wheel" as part of their work. These men were hired "from the outside." Accord- ing to Solak, in all, 11 new machines have been added to the Respondent Malleable's grinding department; however, he admitted that all 11 machines were acquired in April 1956. Stanley Cnota testified that: He was employed as a moulder by Illinois Malleable from January 1936 to July 16, 1954; on or about November 18, 1954, he called on Solak at the employment office; and Solak took him to Bob Neale whom Cnota understood to be "the personnel manager" and who employed him as a moulder for Respondent Appleton, which job he still holds. Cnota further testified, "I make the same thing I made before at Illinois Mal- leable"; testified the machinery has not been changed to make the same products, and that at present the Respondent Malleable's plant manufactures 90 percent water fixtures as before and 10 percent electrical fixtures. On cross-examination Cnota testified: Q. Are they not pipe castings and electrical fittings that are cast in the same molds that have been changed so you can have an electrical fitting in there as well as a pipe fitting? 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, may be changed, but it looks to me that is the same thing. Besides I see exactly same electrical work. We make some-very little. Conclusion With respect to the Respondents' contention that the operations of Malleable and Appleton are completely integrated, the Trial Examiner, on all the evidence considered as a whole, is not persuaded that the Respondent Appleton completely absorbed within its operation any other purchased asset of Malleable other than its heavy losses which taxwise enured to Appleton's benefit. The contention that in 1953, well before Malleable was put up for sale, the Respondent Appleton "de- cided to consolidate all its operations" if possible and that after November 1954, then having acquired Malleable, it "planned" to build a mechanical foundry, if it could acquire other property (which at this time it still "hopes" to acquire, and still "plans" to complete the mechanical foundry in 1959, though the whole project is still in the idea stage), does not set the scene for the play sought to be presented. Illinois Malleable was a foundry operation, producing plumbing fixtures of iron and brass. Because, since November 1954, a method of casting certain fixtures which can be used in plumbing work as well as in electrical work (which is Apple- ton's line ) had been devised and because in 1956 (2 years after Malleable's acquisi- tion by Appleton) the casting work was removed from Malleable's plant, the finishing or grinding work remaining, and now includes work from Appleton's other plant, new machinery for that purpose being added in "April 1956," integration is not spelled out. A foundry is a foundry no matter if it casts only plumbing fixtures or adds electrical fixture castings to its operation, or added to the machinery it has always used in its grinding operations other grinding machines made by different named manufacturers of machinery. the addition being made about 11/2 years after a change of ownership. Nor does it matter if the operations are in- creased or curtailed. It is the operation performed which determines the kind of "appropriate unit" for collective bargaining which may be sought by those employed in the work, not the hopes or plans or decisions of their employer. The Trial Examiner is convinced and finds that the claim of complete integration between the plants of Respondent Malleable and Respondent Appleton has not been sustained by the evidence. Having found that the operations of the Respondents' plant are not integrated, the contention that the Illinois Malleable employees were a mere accretion to the regular appropriate bargaining unit of the Repondent Appleton's employees and subject to the contract existing between Appleton and the IBEW, as well as the corollary contention of the Party to the Contract (IBEW) that it holds jurisdiction over Malleable's employees under the aforesaid contract because it not only covers employees of Appleton's present plant but those in "any future plants," is clearly seen to be untenable. At first blush the clause "any future plants" brings to mind that series of cases which arose under the Wagner Act, during the confusion or wartime industrial activity, relating to "expanding units." In the "expanding unit" situations employer and bargaining agent tinder contract for a very few employees in a plant either just beginning operation, or still in contemplation, sought to bind all prospective employees as a condition of employment The "contract" may have originally covered less than a dozen employees, the final number may have been a thousand unwilling dues payers. There seems no need to cite the Wagner Act cases in which the Board set such contracts aside as flagrant abuse of employees' right to unions of their own choosing-13 Section 8 (a) (3) of the Act permits an agreement which requires membership in a labor organization as a condition of employment only if the labor organiza- tion is the legal representative of the employees when such agreement is made. The Court of Appeals for the Sixth Circuit has held that "an employer cannot, by dealing with a union, constitute it the lawful representative of employees who have not chosen it to represent them." 14 It is axiomatic that the purpose of the Act is to insure certain rights to employees in relationship with their employer. One of the chief benefits insured and protected by the Act is the right of employees to bargain through a union of their own 13 See however: Local 404, International Brotherhood of Teamsters (Brown Equipment and Manufacturing Co., Inc ), 100 NLRB 801 ; Chicago Freight Car & Parts Co., 83 NLRB 1163. 14 Dickey v. N. L. R. B., 217 F. 2d 652 (C. A. 6). ILLINOIS MALLEABLE IRON COMPANY 475 choosing. In protecting this basic right the Board has held that a group of employees, previously outside a bargaining unit in which they might appropriately be included, should not be placed in a bargaining unit where they would be a minority 15 without being given the opportunity to express their preference in an election.16 The Trial Examiner finds the Borg-Warner Corporation case 17 quite different than the instant matter. In the Borg-Warner case the contract provided for prospective employees to be hired for a department of the plant to be housed in a building under construction; the new employees were under the same direction as those already employed through- out the plant, worked under the same conditions, and were interchangeable with employees in other departments of the same plant. The Board held the employees hired for the new work were an accretion to an already existing unit of employees. In the opinion of the Trial Examiner the Borg-Warner decision represents a limited exception to the general rule. It provides that an employer may enter into a contract covering an unrepresentative group when all of the following condi- tions are present: ( 1) The employer has no notice of a rival union situation (logically, the Board in Borg-Warner found that the UAW's filing of an unfair labor practice charge was not notice where it was not, and could not be, accom- panied by a showing of interest); (2) when the representative group appears, it is not an appropriate unit; (3) the union recognized is an incumbent union already properly the collective-bargaining representative of a unit to which the new employee complement, when it is adequately represented, may appropriately be added without challenging the incumbent's majority status; and (4) the employer's recognization of and assumption of contractual obligations toward the incumbent union is in good faith. It should be noted that in Borg-Warner no violation of Section 8 (a) (3) or independent violation of Section 8 (a) (1) was alleged, and the case was argued by the General Counsel solely on the theory that the employer had in good faith, but at his peril, drawn an incorrect legal conclusion; the Board disagreed, holding that the legal conclusion turned out to be right, therefore excusing its prematurity. The facts in the instant matter are not the same. It is clear that by acquiring Illinois Malleable the Respondent Appleton engaged in a new enterprise , and it is equally clear that at the time Appleton contracted with IBEW for any prospective employees it could not have had in mind those employees it would hire for a plant it as yet had no inkling it would acquire, a plant which historically manu- factured products not made by Appleton, and whose employees. historically were represented by a certified union of their choice Appleton acquired Illinois Malleable , hired the employees of the former operation, and informed such employees that now they must become members of the IBEW under the terms of a contract formerly executed for a different plant. The Trial Examiner finds that by enforcing the provisions of the contract existing between IBEW and Appleton as to the employees of Respondent Malleable hired on and after September 21, 1954 , as hereinabove found, whereby said employees were informed that they must become members of IBEW by reason of a contract covering prospective employees in "future acquired" plants, the Respondents have contributed illegal support to the IBEW and interfered with and coerced the employees of the Respondent Malleable in violation of the Act , more particularly Section 8 (a) (2) thereof.18 The Trial Examiner further finds that by the acts and conduct of Stanley Solak as hereinabove found the Respondents have violated the provisions of the Act, more particularly Section 8 (a) (1) and 8 (a) (2) thereof. B. The refusal to employ 1. Raymond D. Smith Raymond D. Smith testified that : He was employed by Illinois Malleable from July 20, 1940, to September 16, 1954, as a galvanizer ; while so employed he rep- 15 The record discloses that in the Chicago area Appleton now has 1,100 employees. Malleable now has 142. le The Zia Company, 108 NLRB 1134 17 Borg-Warner Corporation, 113 NLRB 152 affd . 231 F. 2d 237 ( C A. 7), cert. denied 352 U S. 908. is Safeway Stores, Inc., 111 NLRB 968-975. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resented the employees in the UAW organization as plant steward, chief steward, and member of the bargaining committee, "until the plant went out of business"; after the plant was acquired by the Respondent Appleton, he, on or about Novem- ber 6, 1954, applied for work to Tony Raiman, whom he understood to be "manager of the plant when it was going back into operation"; when Raiman saw him he remarked, "I assume that you are seeking a job," and after some conversa- tion told him "we cannot employ you because we don't want the CIO back in the plant any more." According to Smith he pointed out to Raiman that as a former elected CIO representative he was not "the general CIO itself" and that "if I get re-hired" he knew he would have to subject himself to "the union you have here already" and was told by Raiman: "That is true," he said, "but if we re-hire you, we probably won't have this union and we will have the CIO," which he repeated several times; .. . Raiman then told Smith, according to the latter's testimony, that "they would close the plant before they would accept the CIO." Smith came to the plant the following week and was told by Raiman, "I talked to Solak you can go over and see him." Smith then saw Solak in the personnel office who told him, "We have no job." Tony Raiman, foreman of the grinding department in the plant of Respondent Malleable, was examined by the Respondent regarding Smith's account as above re- lated. The transcript of Smith's testimony regarding the conversation was read by the Respondents' attorney and Raiman was asked if he made the statement at- tributed to him. He replied "no." Raiman testified that Smith merely asked for a job, and was told that none was open, and told that he could see Solak at the employment office . Raiman also denied he told Smith the plant would be closed before "anyone would accept the CIO back." On examination by the Respondents, Solak testified: Q. (By Mr. Cane!.) Mr. Solak, as to Mr. Smith, will you tell us please why you did not hire him? TRIAL EXAMINER: Did you tell Smith why you didn't hire him? Just answer my question. The WITNESS: Yes, sir. TRIAL EXAMINER: Tell us what you told him. The WITNESS: General foreman at that time then, that operation, discon- tinued the former practices that Illinois Malleable Iron Company had in this respect. With six men in the galvanizing- Miss ENGSTROM: Is that what you told Mr. Smith? The WITNESS: I would like to explain. Miss ENGSTROM: Just tell us what you told Smith. The WITNESS: We eliminated the sal sprinkler's job and there was no job available for him. Q. (By Cane!.) Well, that was the job he formerly did? A. Yes, sir. 2. William Castelluccio William Castelluccio testified that he was employed by Illinois Malleable from June 14, 1939, to September 17, 1954; however, as the record is clear that the last day Castelluccio actually worked in the plant was July 16, 1954, he apparently con- sidered himself a bona fide employee until the plant was sold to Appleton. The last job held by Castelluccio at Illinois Malleable was "welder-maintenance," but he had held many other jobs. During his employment at Illinois Malleable, Castelluccio held the union offices of steward, chief steward, and committeeman but held no office since 1945. Castelluccio testified that "after they were laid oft-in September" he contacted Solak in Malleable's personnel office and asked "if my job was opened up would he let me know," and that Solak said "he would let me know." Castelluccio further testified that sometime in November 1954 he saw Solak at one of the plant gates and had the following conversation with him: . Well, he told me, he says-I asked him how things were going and he said everything was all right, but he says, "I've been hearing you have been ILLINOIS MALLEABLE IRON COMPANY 477 shooting your mouth off at the union meeting." I says, "Sure, what about it? Can't I speak? This is still a free country yet." He says, "You have been shooting your mouth off at the union hall as well, or at the union office, too." I says, "Yes." I says, "Well, does that have anything to do with my job?" And we were arguing back and forth. He says, "So far, we are not hiring anybody right now." . . . Castelluccio testified that following the conversation "He went his way and so did I." According to the witness he visited the plant again about 3 days later in the company of Leon Hill and there they saw Stanley Solak. He testified: Well, we asked him if there was anything open for us, or our jobs back, and he said there was nothing open. We said we were willing to take any job if they were open and he said there is nothing open at all. Solak denied making any statements to Castelluccio about the latter "shooting off his mouth." Solak further testified: Q. Mr. Solak, did you tell Mr. Castelluccio why you did not hire him? A. Mr. Castelluccio come up here- TRIAL EXAMINER: You can answer yes or no. Did you or did you not tell him? The WITNESS: Yes, sir. Q. (By Mr. Canel.) What did you tell him? A. That time I told Mr. Castelluccio for anything like his former job, or any job he had previous there was not available. No job available under some of the work he has done before. 3. Leon Hill Leon Hill testified that he was employed by Illinois Malleable from September 1940 until August 2, 1954. He testified that from October 1949 until the closing of the plant he was president of the UAW and handled the grievances with the Company, spending about 20 hours weekly on this union activity; however, he admitted on cross-examination that by permission of the management, from December 1, 1953, until August 2, 1954, he did no work at all in the plant but continued as president of the UAW and handled the grievances for the Union, apparently on the payroll. Hill testified that in November and December of 1953 he was off work for 60 days because of illness which his personal doctor diagnosed as "a nervous condi- tion." In December he returned, was examined by the company doctor and given a "return to work slip." He testified, "I was able to return to my regular job." As has been found herein Hill did no work after his return in 1953. Hill testified he had no illness prior to the one in 1953. Dr. Clarence J. Zurfli testified that : He had been medical director for Illinois Malleable; on August 11, 1952, he was called to the Alexian Brothers Hospital to examine Hill after Hill had been found unconscious in the Union's office; he exam- ined Hill, found him to be "in coma of undetermined origin "; Hill was in the hospital 4 days and then returned to work; on November 30, 1952, he was again called to the hospital to examine Hill who had become unconscious during the day at 11 a. in. and 3 p. m.; nothing definite was determined regarding the cause of Hill's condition ; Hill returned to work but was under medication; on July 17, 1953, Hill experienced another seizure, was admitted to the hospital, and after exami- nation it was concluded that Hill "had had major epileptic like seizures"; Zurfli then reported to the Company " that it was dangerous" for Hill to do certain types of work. Solak testified that when Hill asked for employment he told him that: Due to the fact, physical fitness and because of what was discussed prior to shutting down of his illness he had felt it would not be safe putting him back as a grinder. Told him that I could not take him back as a grinder. Solak further testified that he: A. Couldn't hire him under those conditions. I have a job, a grinder, but not under his condition. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You are talking about physical requirements for the job. A. Yes, sir. Conclusion as to the Allegations of Discriminatory Refusal to Employ Considering the pattern set by Solak's statements to Frank H. Thomas, Albinus South, Snag Morrison, Talmage Walker, and Stanley Powers, the natural conclusion arises that if Solak warned rank-and-file UAW members regarding their previous union affiliations he may well have gone further with respect to UAW officers; how- ever, this is an inference. The Trial Examiner finds that the record does not sustain the allegation of discriminatory refusal to hire although it does raise a very serious doubt, therefore it will be recommended that the complaint be dismissed insofar as it alleges that the Respondents discriminatorily refused employment to Raymond D. Smith, William Castelluccio, and Leon Hill, and each of them, and thereby "did discriminate and are discriminating in regard to hire or tenure or terms and condi- tions of employment to encourage or discourage membership in a labor organiza- tion and, thereby, did engage and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act." Concluding Findings On all the evidence considered as a whole the Trial Examiner finds that by the statements of Foreman Stanley Solak to Thomas, South, Morrison, Walker, and Powers and by rendering unlawful assistance to the IBEW, all as herein found, the Respondents have engaged in conduct violative of Section 8 (a) (1) and (2) of the Act. The Trial Examiner further finds that the Respondents have not engaged in conduct violative of the Act by their refusal to employ Raymond D. Smith, William Castelluccio, and Leon Hill. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondents have engaged in certain unfair labor practices. The Trial Examiner will recommend that they cease and desist there- from and take certain affirmative action in order to effectuate the policies of the Act. Having found that the agreements between the Respondents and Local 1031, International Brotherhood of Electrical Workers, AFL-CIO (meaning the so- called master contract dated September 1, 1954, and the supplemental agreements with Malleable, dated September 22, 1954, and January 26, 1955) 19 in respect to the employees of the Respondent Malleable are invalid in their application because these employees could not appropriately be included in an appropriate bargaining unit with the employees of the Respondent Appleton in other plants covered by the master contract and in order to insure to the employees of the Respondent Malleable the full and free exercise of their rights to a union of their own choice as guaranteed in Section 7 of the Act the Trial Examiner will therefore recommend that the Re- spondents withdraw all recognition from the IBEW as the representative of all of the employees of the Respondent Malleable for the purposes of dealing with the Respond- ents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. The Trial Examiner further recommends that the Respondents cease and desist from giving effect to the so-called supplemental agreements dated September 22, 1954, and January 26, 1954, above mentioned; however, the Trial Examiner further recommends that nothing herein shall be deemed to require the Respondent Malleable to vary any of the wages, hours, seniority, or other substantial features of its relations with its employees now established under the aforesaid supplemental agreements. 29 Stipulation Exhibits Nos. 7, 11, and 13, respectively. ILLINOIS MALLEABLE IRON COMPANY 479 Inasmuch as the Trial Examiner does not believe that the conduct of the Respond- ents as found herein amounts to domination of the IBEW by the Respondents, the Trial Examiner does not include disestablishment in his recommendations , but does recommend that no recognition be afforded to IBEW or other labor organizations by the Respondents for any of Malleable's employees until such employees have legally selected a bargaining representative that can be certified by the Board. Having found that the Respondents engaged in conduct violative of Section 8 (a) (2) of the Act by coercing employees of the Respondent Malleable to become and remain members of IBEW, and by compelling payment of dues to, IBEW by check- ing off dues of such employees, the Trial Examiner recommends that the Respondents make whole to such employees the amounts deducted from their wages for that purpose from the date such deductions were in each case made, to the date of com- pliance with these recommendations?° For the reasons hereinbefore set forth , the Trial Examiner will further recom- mend that the complaint be dismissed insofar as it alleges violations of Section 8 (a) (3) by the Respondents ' failure to employ Raymond D. Smith , William Castelluccio, and Leon Hill. Upon the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local No. 788 , International Union , United Automobile, Aircraft and Agricul- tural Implement Workers of America, AFL-CIO (Charging Party ) and Local 1031, International Brotherhood of Electrical Workers, AFL-CIO (Party to the Con- tract ) are labor organizations within the meaning of the Act. 2. Illinois Malleable Iron Company and Appleton Electrical Company, Respond- ents herein , are engaged in commerce within the meaning of the Act, and since September 21, 1954, have been, for all purposes relevant herein , a single employer. 3. By the conduct of Foreman Stanley J. Solak in informing prospective employ- ees of the Respondent Malleable that a condition of their employment by Malleable was membership in IBEW and by his statements to Thomas and South to the effect that the Respondents would tear down Malleable's plant and turn it into a parking lot rather than "accept" the UAW, and by other remarks as herein found and by the Respondents' requiring employees of Respondent Malleable to become and remain members of the IBEW , and by checking off dues for IBEW from the pay of such employees, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act. 4. By engaging in the conduct described in paragraph 3, above, and by applying the contracts between Appleton and IBEW and the terms thereof to the employees of the Respondent Malleable, the Respondents have rendered unlawful assistance to Local 1031 , International Brotherhood of Electrical Workers, AFL-CIO, in violation of Section 8 (a) (2) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondents have not engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act by failing to employ Raymond D. Smith, William Castelluccio, and Leon Hill. [Recommendations omitted from publication.] 90 The Respondents aie in no position to contend that the time consumed from the filing of the charge until the filing of the complaint makes the above recommendation a penalty, the Board having said in Winn & Lovett Grocery Company d / b/a Margaret Ann Grocery Stores (115 NLRB 1676 ), in which ease the original charges were filed November 19, 1951, hearing concluded March 15, 1954 , and the Trial Examiner 's Intermediate Report issued March 19, 1956' In accordance with our usual practice of not abating back pay for delays incident to the processing of cases, we reject the Respondent 's contention. Cowell Portland Cement Co , 40 NLRB 652, 703, enfd as mod. 148 F. 2d 237 ( C A. 9). In the cited case, the court agreed with the Board that the tolling of back pay because of the alleged unjustified delays would be unwarranted , even though the court viewed such delays as unfortunate.