Kansas City Structural Steel Company

III the Matter of KANSAS CITY STRUCTURAL STEEL COMPANY and INTERNATIONAL ASSOCIATIONI OF BRIDGE, STRUCTURAL AND ORNA- MENTAL IRON WORKERS, SHOPMEN WORKERS, LOCAL 520 and INTER- NATIONAL BROTHERHOOD OF BOILER MAKERS, IRON SHIP BUILDERS AND HELPERS OF AMERICA Case No. C-815.-Decided April 20, 1939 Stect Products Manufacturing and Erectwg Industry Interference, Restraint, and Coercion-Company-Dominated Union : domination of and interference with formation and administration ; support ; encouragement of employees to join ; disestablished , as agency for collective bargaining-Contract: with company- dominated union, abrogated ; order providing for, not requiring substantive condi- tions of employment specified in contract to be changed-Espionage-Discrimina- taon: transfer to temporary work, refusing thereafter to restore employee to previous position ; charges of discriminatory lay-off, not sustained as to four persons-Back Pay: awarded employee refused reinstatement, from date of refusal to date of reinstatement. Mr. Henry H. Foster, Jr., for the Board. Cooper, Neel, Kemp d Sutherland, by Mr. William E. Kemp, Mr. Wallace Sutherland, and Mr. A. L. Cooper, of Kansas City, Mo., for the respondent. Mr. Clif Langsdale and Mr. Gibson Langsdale, of Kansas City, Mo., for the Iron Workers. Mr. L. A. Freeman and Mr. M. W. Mikesell, of Kansas City, Kans., for the Boilermakers. Mr. Blake A. Williamson and Mr. Lee Vaughan, Jr., of Kansas City, Kans., for the Association. - Mr. Paul S. Kuelth'au, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Workers, Local No. 520, herein called the Iron Workers, and by International Brother- hood of Boiler Makers, Iron Ship Builders and Helpers of America, herein called the Boilermakers, the National Labor Relations Board, herein called the Board, by the Regional Director for the, Seventeenth 12 N. L. R. B., No. 43. 327 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region (Kansas City, Missouri), issued its complaint, dated May 3, 1938, against Kansas City Structural Steel Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Iron Workers, and the Boilermakers. In regard to the unfair labor practices, the complaint in substance alleged (1) that prior to March 15, 1937, the respondent dominated and interfered with the formation and administration of an employee committee, known as the Shop Committee; (2) that thereafter the respondent dominated and interfered with the formation and admin- istration of Employees' Association of the Kansas City Structural Steel Company, herein called the Association, and contributed finan- cial and other support to it; (3) that the respondent laid off or dis- charged Thomas G. Frost, Gerald E. Mullin, and Carl L. Beavers on or about June 11, 1937, and Alton Kelso and Irvin W. Bodam on or about July 9, 1937, because they joined and assisted a labor organ- ization sponsored by the Committee for Industrial Organization, herein called the C. I. 0.; (4) that the respondent refused to rein- state John E. Hutson on or about May 5, 1937, because he had joined and assisted the C. I. 0.; and (5) that the respondent by the above acts, by making or permitting to be made statements derogatory to "outside" unions and favoring "inside" unions, and by other acts showing a preference for "inside" unions, interfered with, re- strained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act. The time for answer having been extended by the Regional Director, the respondent filed its answer, dated May 12, 1938, denying the alleged unfair labor practices and alleging that the Act as applied to the respondent is unconstitutional on several grounds. Thereafter the Association filed with the Re- gional Director its petition to intervene, which was granted by the Regional Director. Pursuant to notice, a hearing was held in Kansas City, Missouri, from June 27 until July 21, 1938, before Ernest R. Strempel, the Trial Examiner duly designated by the Board. The Board, the Iron Workers, the Association, and the respondent were represented by counsel; the Boilermakers was represented by two international repre- sentatives; and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. On June 22, 1938, .the Board took the deposition of Gerald E. Mullin in Kansas City, Missouri. The respondent, the Iron Workers, KANSAS CITY STRUCTURAL STEEL COMPANY 329 and the Association were represented by counsel at the taking of the deposition; the Boilermakers was represented by its international representative. Full opportunity to examine and cross-examine Mul- lin was accorded all parties. All parties waived the statutory require- ments for the taking of depositions and the deposition was admitted into evidence as an exhibit. Objections to the admission of evidence were made during the taking of the deposition and at the time the deposition was introduced into evidence at the hearing. The Trial Examiner reserved ruling on the objections. The Board has re- viewed the testimony and finds that the admission of the testimony contained in the deposition is not prejudicial. The objections are hereby overruled. At the close of the Board's case and at the close of the hearing, counsel for the respondent moved to dismiss the complaint on the ground that it was not sustained by the evidence and the evidence showed that the respondent had not engaged in unfair labor prac- tices as alleged in the complaint. Counsel for the Association made similar motions to dismiss the complaint in so far as it charged the respondent with dominating the formation and administration of the Association. The Trial Examiner reserved ruling on those mo- tions. To the extent that these motions are inconsistent with the findings, conclusions, and order set forth below, they are hereby denied. During the hearing the Trial Examiner ruled on other motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 12, 1938, the Board, acting pursuant to Article II, Sec- tion 37, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered the case transferred to and continued before it. On August 23, 1938, the respondent filed exceptions to that order and moved for its rescission. On August 24, 1938, the respondent moved that the Trial Examiner be directed to prepare and file an Intermediate Report and applied for permission to make oral argument and file briefs. On September 2, 1938, the Board denied those motions and ordered that Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order be issued and that the par- ties have the right, within 10 days from receipt of said Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order to file exceptions, request oral argument before the Board, and request permission to file a brief with the Board. On January 13, 1939, the Board issued and duly served on the parties Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order in the case. Subsequently, exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Pro- posed Order were filed by the respondent, the Iron Workers, and 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Association. Pursuant to leave granted to all parties, the respond- ent, the Iron Workers, and the Association filed briefs with the Board. On March 9, 1939, pursuant to request therefor and notice to all parties, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent and the Iron Workers were represented by counsel and participated in the argument. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Kansas City Structural Steel Company, is a Mis, souri corporation licensed to do business in Kansas with a plant and office located in Kansas City, Kansas. It is engaged in the fabrica- tion and erection of steel buildings, bridges, tanks, refineries, and warehouses. The respondent erects approximately 50 per cent of the material it fabricates. The chief raw material used by the respond- ent is rolled steel, all of which is obtained from points outside Kansas. More than 75 per cent of the respondent's fabricated products are sold, transported, and distributed outside Kansas. In 1937, the re- spondent's sales outside the State aggregated $1,559,660.57 1 while those made in Kansas amounted to $727,031.16. II. THE ORGANIZATIONS INVOLVED The C. I. O. Was a labor organization sponsored in the spring and summer of 1937 by the Committee for Industrial Organization among the respondent's employees. This labor organization never received a charter from the Committee for Industrial Organization and the latter withdrew in September 1937. Most members of the C. I. O. at that time became members of either the Iron Workers or the Boiler- makers. International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Workers, Local No. 520, is a labor organ- 1 Sales outside Kansas were divided among 22 States as follows : Arizona-------. $72, 156 32 Alabama ------- 6, 146 00 Arkansas-----_ 2,088.10 California------ 6,240.00 Colorado------- 197, 742 74 Georgia -------- 1, 790 60 Idaho --------- 17, 554. 72 Illinois ------- - 2,507.73 Indiana -------- $98 00 Iowa---------- 3,112.93 Minnesota-___- 12, 474. 25 Missouri --- ---- 533, 533,956 11 Montana ------- 80, 398. 36 Nebraska-_____ 11,540 82 New Mexico-___ 231, 308 27 North Carolina- 3,581.40 Ohio ---------- $11,428.36 Oklahoma------ 181, 071 54 Texas_________ 109, 407. 70 Utah ---------- 6,552 00 Wyoming ------ 61, 737. 62 Washington-___ 6,767.00 KANSAS CITY STRUCTURAL STEEL COMPANY 331 ization admitting to membership persons employed in the respond- ent's shop. It is a local of a national union affiliated with the Amer- ican Federation of Labor. International Brotherhood of Boiler Makers, Iron Ship Builders and Helpers of America is a labor organization admitting to mem- bership persons employed in the respondent's plant. It is affiliated with the American Federation of Labor. Employees' Association of Kansas City Structural Steel Company is an unaffiliated labor organization admitting to membership all hourly paid employees in the respondent's plant. III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the shop committee and the Association Late in 1933 or early in 1934, the Boilermakers started to organ- ize the respondent's plant. O. C. Smith, then secretary of the respondent, called a meeting of all the respondent's employees in the template shop at which he condemned those active in that labor organization. At his suggestion a shop committee was elected to represent the employees in dealing with the respondent. This shop committee consisted of 14 members, 2 or 3 of whom appear to have been elected as members at large while the remainder were elected to represent various departments., Five of those elected were work- ing foremen.2 After the organization of the shop committee, the Boilermakers abandoned its attempt to organize the plant. The shop committee itself ceased to function after a few conferences with O. C. Smith and Howard Fitch, Sr., president of the respondent. In March 1937 John Hutson and one Wallace, both employees of the respondent, decided to organize a union in the respondent's plant and obtained some application cards for that purpose from Robert Steven, an organizer for United Automobile Workers of America, affiliated with the Committee for Industrial Organization. Hutson circulated the cards in the plant and was successful in secur- ing signatures in the welding department. and among the rack-punch operators. By March 19 the organization of the C. I. O. was well under way and a meeting was held at which Hutson was elected chairman of the group. On March 15, 1937, H. A. Fitch, Sr. called a meeting of the shop committee in the shop office to discuss wages. At that meeting, dis- satisfaction with the shop committee as then constituted, whose mem- a Although working foremen lack the power to hire and discharge , they assign work and supervise the work of the employees under them. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hers had held office without new elections since its organization in 1933, was brought to the respondent's attention. Several forms of petitions for the designation of new shop committeemen were sub- mitted and Fitch, Sr. selected one as best suited to that purpose. Fitch, Sr. then suggested a meeting of all hourly paid employees in the template shop at 12: 30 p. m. the same day. The meeting in the template shop was held as suggested. Fitch, Sr. informed the men that he wanted to talk to the shop committee about wages and suggested that new elections be held. He further stated that the men had to decide whether they were going to be represented by an "inside" or by an "outside" union in their dealings with the respondent. After Fitch, Sr. finished speaking he left the room and Clay I. Ramsey, a member of the old shop committee and later chairman of the newly elected shop committee and of the Asso- ciation, instructed the men to return to their departments for the election of shop committeemen. The member-at-large positions on the shop committee were abolished by common consent and each department voted for a shop committeeman to represent it. After the election, in which all but four of the old departmental representatives were reelected, the new shop committee met Fitch, Sr. in the shop office. He announced a general raise of 5 cents per hour throughout the plant and stated that H. A. Fitch, Jr., the re- spondent's vice president in charge of production, and Glen S. Smith, assistant secretary of the respondent in charge of personnel, would endeavor to eliminate inequalities in wages among the men by formu- lating a classification system with the shop committee. At this meeting in the shop office the new shop committee elected officers from among its own number. Ramsey was elected chairman and Loren Winchell, working foreman in the template shop, was elected secretary. After the meeting, the petition selected by Fitch, Sr. for the designation of shop committeemen, copies of which had been prepared by the respondent, was circulated in the various departments and signed by the employees. Although prior to the speech of Fitch, Sr. at the March 15 meeting, there had been no attempt by the employees to organize an "inside union" to represent them, immediately thereafter they began to dis- cuss the relative merits of such a union and an affiliated labor organi- zation. The members of the shop committee discussed the matter informally among themselves and with several working foremen and decided to organize an "inside" union. Also during that week the shop committee met with Fitch, Jr. and Glen Smith to discusss the proposed wage classifications of the employees. On March 22 a second meeting of all hourly paid employees was held in the template shop. Fitch, Jr. who had called the meeting, KANSAS CITY STRUCTURAL STEEL COMPANY 333 explained the raises and reclassifications which were to be put into effect and asked for an expression of approval or disapproval from the men. He then left the room and Ramsey took charge of the meeting. After the men voted to accept the proposed raises and reclassifications, Ramsey proposed a vote on "inside" and "outside" unions and made a speech in favor of the former. After another speech in favor of an inside union a vote was taken on ballots pre- pared before the meeting by Winchell at the direction of the shop committee, which resulted in a large majority approving an inside union. The following week Ramsey appointed Ira Price, then a working foreman in the punch and shear department and a member of the shop committee, chairman of a committee to draw up bylaws for the proposed inside union. Price selected Victor McDonald, working foreman in charge of the burners, and two other employees to work with him on the committee. The bylaws committee met evenings in, the shop office and, in addition to preparing proposed bylaws, drafted an application for membership which McDonald induced Emmett Holland, who was employed in the respondent's office, to mimeograph on the respondent's machine. Holland also used the respondent's paper but the respondent had no knowledge of his activi- ties which took place after working hours. He testified that he was accustomed to perform such tasks for anyone requesting them. On April 2 a meeting for the organization of the Association was held in the Odd Fellows Hall in Kansas City, Kansas. Ramsey presided and thereafter was elected temporary and then permanent chairman; James Wright, later chairman of the C. I. 0., was elected vice chairman, and Winchell secretary. An agreement committee was appointed to draft a proposed agreement to be submitted to the respondent. The bylaws were read and largely approved and mem- bership application cards were distributed and signed. The record shows that applications were circulated in the plant and in several instances signed during working hours. Although several leaders of the Association denied that the applications were circulated before the meeting of April 2 or in the plant, their testi- mony is not persuasive. McDonald, head burner and a witness for the Association, testified that he signed the application at the burn- ing skids during working hours at the request of Dick Pyle, the representative committeeman for the welding and burning depart- ment. Arthur Piersee, another witness for the Association, testified that he signed the application for membership before the April 2 meeting. On April 12 the Association conducted new elections for repre- sentative committeemen. These elections were conducted in the plant 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during working hours and resulted in the reelection of all the former shop committeemen with the exception of Ramsey who had resigned from the shop committee upon his election as chairman of the Asso- ciation. At the same time vice committeemen were elected. On April 24 the Association submitted a proposed contract to the respondent. After some negotiations and after the Association had submitted the signed membership applications as proof of its ma- jority, the respondent on May 4 entered into a contract with this labor organization. By the terms of the agreement the respondent recognized "the Representative Committeemen signing with the Com- pany as the sole bargaining agency of the members of the Employees' Association" and agreed to lay off and recall employees in accord- ance with departmental and plant seniority.3 The agreement also had detailed provisions concerning working conditions, most of which perpetuated the previous policies of the respondent. The administration of the Association is vested in the "representa- tive committee" which acts as a steering or executive committee for the Association. It meets the night before meetings of the general membership and the minutes of its meetings are read at the general membership meetings. In addition the representative Committee is the grievance and negotiating committee for the Association. It is noteworthy that the bylaws provide that to be eligible for election as a representative committeeman a person must have been in the respondent's employ for at least 5 years. In March 1937, the respondent attempted to establish a system of espionage against the C. I. O. Arthur Piersee, a working foreman in the welding and burning department, joined the C. I. O. soon after its organization. Immediately thereafter Joe Frick, self-styled op- ponent of the C. I. O. who was a Class A fitter in the welding and burning department and a member of the old shop committee, drew up a petition authorizing the shop committee to make any agreement with the respondent it saw fit without consulting the employees about its terms. Frick showed this petition to Leonard Cramer, welding and burning department foreman, who told him to circulate it among the employees. The petition was circulated in the department but no signatures were obtained and Frick complained to Cramer that even 3 The respondent agreed to follow seniority as defined in the agreement "so far as com- patible with the successful management of the Company " The agreement provided that seniority accrued from the first day an employee worked for the respondent but that it did not become established until that employee had received 24 semi-monthly pay checks from the respondent. In practice this was interpreted to mean that the respondent need only recognize established seniority and that in cases where there was no established seniority the respondent was free to consider the ability and need of the employees without established seniority in determining who was to be laid off or recalled to work. The agreement provided that lay-offs should be in accordance with departmental seniority but that employees should be recalled on the basis of plant seniority to any department in which work was available which they were able to perform. KANSAS CITY STRUCTURAL STEEL COMPANY 335 Arthur Piersee, a working foreman, would not sign. Cramer re- plied, "Art is going with these boys to the C. I. 0. meetings and reporting back to me, and I don't want him to sign it and them find it out." Later Frick asked Piersee why he had not signed the peti- tion and Piersee answered, "You know why, I am going out with the boys and reporting back to the company." Piersee testified that he refused to sign the petition because he was a member of the C. I. 0., but denied spying on the C. I. 0. meetings for Cramer. Cramer also denied the statements attributed to him by Frick or that he received any information from Piersee with respect to the C. I. 0. Frick's testimony, however, is supported by similar and uncontradicted testi- mony of Cecil Eckard, a welder and burner employed by the re- spondent, who had occasion to attend a C. I. 0. meeting with Piersee. A few days after the meeting Cramer questioned Eckard about the meeting, and advised the latter that he had no business there. Eckard replied that he had gone with Piersee, whereupon Cramer stated that it was proper for Piersee to attend since he was a foreman and had to see how many men in his department were loyal to the respondent. Piersee attended three or four C. I. 0. meetings and considered him- self a member of that organization until April 1937, when he with- drew after being accused of being a "stool pigeon" for the respondent. Some of the respondent's foremen and working foremen actively encouraged membership in the Employees' Association. Cramer told Eckard in May 1937, when Eckard was behind in his Association dues, that he should "get in behind" the Association and "make it go and try to get the rest of the boys in the shop to get behind it, too, or the Company couldn't use" him. Cramer also stated that "he had had a lot of experience- in employees' associations, and that was the best contact a bunch of men could have." Although Cramer denied tell- ing Eckard to support the Association, his denial is not persuasive. Clyde Wiseman, assembling and riveting department foreman, criticised Gerald Mullin for belonging to the C. I. 0. and attending its meetings. Wiseman also talked to Thomas G. Frost several times in May 1937, asking him whether he was "staying with him and the Company," and telling him that there would be "more and steady work" if the men "would stay with" the Association which would "amount to more in the long run than the C. I. 0." McDonald, working -foreman in charge of the burners and a mem- ber of the committee which drew the Association bylaws, was also opposed to outside organizations. He told Gerald Mullin that he would like to "run every C. I. 0. man out of" the plant; Alton Kelso had a conversation of similar import with McDonald. McDonald also urged Mullin to pay his dues to the Association. Ira Price, working foreman in the punch and shear department and chairman of the 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association's bylaws committee, made similar statements to employees in his department. Price denied making any statements derogatory to the C. I. 0. and favoring the Association, but in the light of all the evidence his denials are not persuasive. B. Conclusions with respect to the Association It is clear from the facts set forth above that the Association is the outgrowth of the shop committee which was established by the respondent in 1933. As long as the employees showed no interest in an "outside" union the respondent permitted the shop committee to languish. When the C. I. 0. activity started, however, the respondent revitalized the shop committee, called a meeting of the hourly paid employees in the plant, and pointed out to them, although no "inside" union had yet been organized, that it was necessary for them to choose between "inside" and "outside" unions. The respondent then an- nounced the 5-cent raise and the proposed reclassifications through the shop committee. Under the circumstances it is not surprising that the employees voted in favor of an "inside" union. At the same time the respondent was engaging in espionage against the C. I. 0, and thus discouraging membership in it and indicating its preference for an "inside" union. After the organization of the Association by the shop committee in accordance with the respondent's suggestion, the supervisory em- ployees, as set forth above, took an active part in encouraging mem- bership in it. The respondent contends that the actions of super- visory employees are not attributable to it. We cannot adopt that contention. "The foremen are in constant association with em- ployees, who take orders from them and commonly learn from them the Company's policy on other matters. The activity of such super- visory employees must bind the' employer unless effectively dis- avowed." 4 The statements by the supervisory employees were more than mere expressions of opinion. "The form of the utterance is not controlling; the locus of economic power in the proximate relation of employer and employee gives coercive effect to words which in another context might be mere statement of opinion." The respondent also contributed support to the Association by per- mitting the bylaws and the agreement committees to meet in the shop office at night and by permitting the Association to conduct its repre- sentative committeemen election in the plant during working hours. 4Matter of Tennessee Copper Company and A. F. of L Federal Union, No. 21,164, 9 N. L. R. B. 117. Matter of Tennessee Copper Company and A. F. of L Federal Union, No. 21,164, 9 N. L. R . B 117. See also Virginia Ry Co v System Federation No. 40 et al, 84 Fed. ( 2d) 641 (C. C. A. 4th) aff'd 300 U. 8 515. KANSAS CITY STRUCTURAL STEEL COMPANY 337 It is apparent from-all the evidence that the Association is merely a general membership organization superimposed upon the previous shop committee, now known as the "representative committee." The respondent has thus continued to interfere with its employees' right to self-organization, and by means of the contract with the Associa- tion, has crystallized its control over the activities of its employees for a period of 2 years. We find that the respondent dominated and interfered with the formation and administration of the shop committee and thereafter dominated and interfered with the formation and administration of the Association and contributed support to it. We further find that by such domination and interference, and by the other acts set forth above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusal to reinstate and the discharges John E. Hutson had been employed by the respondent as a welder since 1926. By 1937 he was the highest paid welder in the respond- ent's employ and had greater departmental seniority than 14 of the 18 welders then working for the respondent. As described above, Hutson was the leading figure in the organization of the C. I. 0. and on March 19, 1937, was elected chairman of that union. It is customary for the respondent to lend welders to other em- ployers in the Kansas City area who purchase steel from the re- spondent or who are personal friends of the respondent's officers. Both Hutson and Frank Smith had on occasion been assigned to such temporary work and had secured immediate reinstatement by the respondent at the conclusion of the jobs for which they had been loaned. Early in April 1937, the Sinclair Refining Company com- municated with Glen Smith, the-respondent's assistant secretary, and requested that any welders about to be laid off be sent to the Sinclair plant to assist in relining several towers with stainless steel. Glen Smith forwarded the request to Cramer, .the foreman in the welding and burning department, who immediately sought to accommodate the Sinclair Company. Cramer first approached Frank A. Smith who had previously requested a leave of absence for the purpose of taking such temporary work. Smith accepted the assignment with the understanding that he would be reinstated when the job was completed. Cramer next offered Wallace the opportunity to accept similar work and, when the latter refused, Cramer approached Hut- son. Hutson at first refused the assignment but when Cramer an- nounced that his refusal would result in the lay-off of several younger welders, including Hutson's brother, Hutson agreed to go. When 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hutson inquired whether he would be reinstated at the completion of the Sinclair job, Cramer responded that he had always succeeeded in returning to his old position on similar occasions. Although Cramer denied having made any definite commitment with respect to Hutson's reinstatement, he did not deny that he made the above response to Hutson's inquiry. From April 14 to May 10, 1937, Hutson worked for Sinclair Re- fining Company. On about April 21, when Hutson returned to the respondent's plant for a hammer which he had forgotten, he saw Cramer and remarked that he would return as soon as the Sinclair Refining job was finished. Cramer replied, "No, you quit here, you lost your seniority." After some discussion Hutson asked how he could return to the respondent's employ. Cramer answered, "The Company has got an organization now and expects every loyal man to join it." Cramer denied the above conversation but Hutson's testimony is supported in some measure by that of Joe Frick, a mem- ber of the Association, and Cecil Eckard, another welder. Frick testified that while Hutson and Smith were working for Sinclair Refining Company, Cramer told him that he would like to put "quit" on their cards. Frick further testified, and his testimony was sub- stantiated by Eckard, that Cramer told each of them in 1937 that Hutson would not return to the welding department as long as he (Cramer) "had anything to do with" it. Although Cramer denied all the above statements, his denials are not persuasive. On May 10 Hutson returned to the respondent's plant and re- quested Cramer to reinstate him. Cramer replied that no employees were being hired and that if Hutson returned to work it would have to be as a new man. That afternoon Hutson and Frank Smith, who had also been refused reinstatement, saw Fitch, Jr. and informed him of Cr amer''s refusal to reinstate them. Fitch explained the seniority provisions of the contract with the Association and stated that they would have to wait their turn in accordance with the seniority policy therein set forth. Fitch then accompanied them to Cramer's office and instructed Cramer that Hutson and Frank Smith were to be reinstated in accordance with their seniority. The respond- ent thereby recognized that neither Hutson nor Smith had lost their seniority rights by reason of their loan to the Sinclair Company. Thereafter Smith was reinstated and on April 11, 1938, through the intercession of the Board's Kansas City, Missouri, office, Hutson was reemployed by the respondent in its punch and shear department. After 2 days he was reinstated to his former job in the welding depart- ment with full seniority rights. The respondent contends that Hutson was not reinstated until April 1938 because of its seniority policy as enunciated in its contract with KANSAS CITY STRUCTURAL STEEL COMPANY 339 the Association; 6 that reinstatement of Hutson to his former posi- tion during the period from May 10, 1937, to April 13, 1938, would have required the lay-off or transfer of a welder with less seniority in violation of the respondent's policy of avoiding "bumping." It is apparent, however, that Hutson's predicament on May 10 stemmed directly from the respondent's conduct in bringing pressure upon him to accept an assignment to the Sinclair Refining Company on April 14. The refusal to reinstate him to his former position on May 10, 1937, is thus directly attributable to Cramer's anti-union activity in April 1937. As described above, Cramer's antipathy toward the C. I. 0. is abundantly demonstrated in the record, and explains his coercion of Hutson to accept the temporary position. Had he followed Glen Smith's instructions, it is apparent that the temporary position would have been offered to a welder with less seniority whose prospect of being laid off was imminent. It is further significant that Cramer also offered the transfer to Wallace who was likewise an outstanding adherent of the C. I. 0. Cramer's unusual conduct -remains unex- plained in the record and leads to the conclusion that he desired to displace the leaders of the C. I. 0. We find that by coercing Hutson into accepting temporary employ- ment and thereafter refusing to restore him to his previous position with full seniority rights, for the reason that Hutson was active in the C. I. 0., the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the C. I. 0., the Iron Workers, and the Boilermakers, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. After the respondent's refusal to reinstate him on May 10, 1937, and before his reinstatement on April 11, 1938, Hutson earned $1,316.13 working for St. Louis Structural Steel Company, Fairfax Shipyard, W. A. Ross Construction Company, and Kansas City Bridge Company. Gerald E. Mullin, Carl L. Beavers, and Thomas G. Frost were laid off by the respondent on June 11, 1937. Mullin had started work for the respondent on May 29, 1936, in the punch and shear depart- ment but at the time of his lay-off was working in the burning depart- ment to which he had been transferred at his own request approxi- mately 3 weeks before. Beavers had started working for the respond- ent in the painting department on September 24, 1936, but was transferred to the punch and shear department in February 1937, where he was working as a rack-punch helper at the time of his lay-off. Frost had been employed by the respondent as a spot-punch helper 6 See footnote 3, supra. 169134-39-vol 12-23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and operator in the punch and shear department since September 21, 1936. All three belonged to both the C. I. O. and the Association but none was an especially active or prominent member of either. All were laid off because of lack of work. They contend that the respondent's discrimination against them is shown by the retention of newer employees at positions they were capable of filling. Although several newer employees were retained in the punch and shear department after Mullin, Beavers, and Frost were laid off, they were retained at the jobs at which they had been working or for which they had some special qualification. Nor was there retention, under the circumstances, in violation of the respondent's seniority policy since none of the men laid off had "established seniority." 7 In September 1937, the respondent hired Thomas Robinson in the punch and shear department. Robinson was a new employee and the complainant unions in the instant case contend that his employment when Mullin, Beavers, and Frost were not recalled shows that the respondent was prejudiced against the latter three. The circum- stances do not warrant such conclusion. Robinson had been paroled from the reformatory on the condition that he obtain a job. Several of his relatives interceded with Glen Smith in his behalf and in September Smith put Robinson to work. Robinson worked until October 7, 1937, when he too was laid off for lack of work. The record does not support the allegation of the complaint that Mullin, Beavers. and Frost were discriminatorily laid off because of their membership in the C. I. O. r We find that by laying off Gerald E. Mullin, Carl L. Beavers, and Thomas G. Frost on June 11, 1937, the respondent did not discrim- inate in regard to their hire and tenure of employment to discourage membership in the C. I. O. The allegations of the complaint with respect to them will be dismissed. Alton Kelso and Irvin W. Bodam were employed by the respondent in its crane or handling department until July 9, 1937, when they were laid off. Kelso had started work for the respondent on September 10, 1936, and Bodam on September 29, 1936; neither had established seniority. Both of these employees were members of the Association as well as the C. I. O. When Kelso and Bodam were laid off no employees who had worked a shorter time for the respondent were retained in the handling department. However, on August 13, 1937, one Thomas J. Lynch, who had started work for the respondent on April 2, 1937, and had been laid off on June 14, 1937, was recalled. The evidence shows that Lynch was recalled because it was neces- sary to obtain someone immediately to unload a car of steel and, since his father was a watchman at the respondent's plant, Lynch 7 See footnote 3, supra. KANSAS CITY STRUCTURAL STEEL COMPANY 341 was the most readily available. Glen Smith testified that the job to which Lynch was recalled was expected to last only 2 or 3 days but that since carloads of eteel kept arriving he was employed for approxi- mately 6 weeks. Smith's testimony was not controverted. We find that by laying off Alton Kelso and Irvin W. Bodam the respondent did not discriminate in regard to their hire and tenure of employment to discourage membership in the C. I. 0. The allega- tions of the complaint with respect to them will be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY We have found that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it. In order to remedy these unfair labor practices and effectuate the policies of the Act, we shall order the respondent not only to cease and desist. from such domination and interference, but also to cease from giving effect to its contract with the Association 8 and to withdraw all recognition from the Association and completely disestablish it as the representative of any of the respondent's em- ployees for the purposes of collective bargaining. We have found that the respondent's refusal to reinstate John E. Hutson on May 10, 1937, was an unfair labor practice. Since Hutson was reinstated by the respondent with full seniority rights on April 11, 1938, it is not necessary that we order his reinstatement. We shall, however, order the respondent to make him whole for any loss of pay he suffered by reason of the refusal to reinstate him, by pay- ment to him of a sum equal to the amount which he normally would have earned as wages from May 10, 1937, the date of the refusal to reinstate, to April 11, 1938, the date of his reinstatement, less his net earnings a during said period. 8 Such an order does not require the respondent to change substantive conditions of em- ployment which were specified in that contract . Those conditions are part of the respondent's employment policy and may be retained as such. 8 By "net earnings" is meant earnings less ezpenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent which would not have been incurred but for the discrimina- tion against him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. Committee for Industrial Organization, International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Workers, Local No. 520, International Brotherhood of Boiler Makers, Iron Ship Builders, and Helpers of America, and Employees' Associa- tion of Kansas City Structural Steel Company are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the shop committee and with the formation and administration of Em- ployees' Association of Kansas City Structural Steel Company, and contributing support to the latter labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of John E. Hutson because of his activity in the Committee for Industrial Organization, thereby discouraging membership in Com- mittee for Industrial Organization, International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Work- ers, Local No. 520, and International Brotherhood of Boiler Makers, Iron Ship Builders, and Helpers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. By laying off Gerald E. Mullin, Carl L. Beavers, Thomas G. Frost, Alton Kelso, and Irvin W. Bodam, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Kansas City Structural Steel Company, and its officers,- agents, successors, and assigns, shall: KANSAS CITY STRUCTURAL STEEL COMPANY 343 1. Cease and desist from : (a) Dominating or interfering with the administration of Em- ployees' Association of Kansas City Structural Steel Company, or with the formation or administration of any other labor organiza- tion of its employees, or contributing support to any such labor organization ; (b) Recognizing Employees' Association of Kansas City Struc- tural Steel Company as the representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (c) Giving effect to its contract with Employees' Association of Kansas City Structural Steel Company; (d) Discouraging membership in Committee for Industrial Or- ganization, International Association of Bridge, Structural and Or- namental Iron Workers, Shopmen Workers, Local No. 520, Inter- national Brotherhood of Boiler Makers, Iron Ship Builders, and Helpers of America, or any other labor organization of its employees by refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment, because of membership in or activity on behalf of Committee for Industrial Organization, International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen Workers, Local No. 520, International Brother- hood of Boiler Makers, Iron Ship Builders, and Helpers of America, or any other labor organization of its employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining and other mutual 'aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole John E. Hutson for any loss of pay he has suf- fered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from May 10, 1937, the date of the discrimination against him, to April 11, 1938, the date of his reinstatement by the respondent, less his net earnings during said period; 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Withdraw all recognition from Employees' Association of Kansas City Structural Steel Company as the representative of any of its employees for the purpose of dealing with the respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Employees' Association of Kansas City Structural Steel Company as such representative; (c) Post immediately in conspicuous places in its plant and main- tain for a period of at least sixty (60) consecutive days, notices to its employees stating (1) that the respondent will cease and desist as aforesaid; and (2) that the respondent has withdrawn all recognition from Employees' Association of Kansas City Structural Steel Com- pany as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and that Employees' Association of Kansas City Structural Steel Com- pany is disestablished as such representative; (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint with respect to Gerald E. Mullin, Carl L. Beavers, Thomas G. Frost, Alton Kelso, and Irvin W. Bodam be, and they hereby are, dismissed.