Moltrup Steel Products Co.

In the Matter Of MOLTRUP STEEL PRODUCTS COMPANY and STEEL WORKERS ORGANIZING COMMITTEE, LODGE NO. 1202 Case No. C-779.-Decided January 15, 1940 Cold Drawn Steel industry-Interference, Restraint, and - Coercion: main- tenance of employees representation plan ; statements of foremen and officials- disparaging union and warning employees against joining ; holding of meet- ings in plant to discourage union activity ; attempted espionage ; questioning: employees concerning union affiliation ; characterizing union as irresponsible- during bargaining negotiations ; expressed willingness to bargain only with representatives who were employees ; sponsorship of back-to-work movement: during strike resulting from refusal to bargain collectively ; distribution of anti- union pamphlet-Strike: precipitated and prolonged by refusal to bargain- Company-Dominated Union: formation following series of interferences with rights guaranteed employees by Act, refusal to bargain collectively, and dis- crimination against leading union members ; outgrowth of back-to-work move- ment ; formation of by back-to-work leaders who had collaborated with re- spondent in breaking strike ; function of organization to combat outside union ; support ; expressed willingness to bargain with organization only if limited to employees of employer-Unit Appropriate for Collective Bargaining: pro- duction employees, excluding clerical and office workers, foremen, and super- visory employees ; no controversy as to-Representatives: proof of choice : mem- bership application cards; majority status prior to strike not affected by with- drawal in view of respondent's interference-Collective Bargaining: refusal to bargain ; absence of intention to recognize union ; unwillingness to cooperate in bargaining procedure ; evasion of meetings with union representatives ; re- quirement that list of union members be submitted despite presence of other reasonable methods of determining whether union represented majority of employees ; refusal to sign contract because of alleged irresponsibility of union ; employer ordered to bargain and upon request enter into signed agreement with union if understanding reached-Discrimination: laying off entire shift where business conditions not unfavorable ; discharge of employee for failure to discontinue union activity ; refusal to reinstate leading members of union- Regular and Substantially Equivalent Employment: factors considered ; desire for reinstatement, location and lower wage of new work, as-Reinstatement: ordered-Back Pay: awarded. Mr. Francis V. Paone and Mr. Benjamin E. Gordon, for the Board. Thorp, Bostwick, Reed & Armstrong, by Mr. Kenneth G. Jackson, Mr. W. Davis Graham, and Mr. Charles C. Hewvitt, all of Pittsburgh, Pa., for the respondent. Mr. Benjamin Sigal, of Pittsburgh, Pa., for the S. W. O. C. Mr. Forest G. Moorhead, of Beaver, Pa., for the Independent. Mr. Sylvester Garrett, of counsel to the Board. 19 N. L. R. B., No. 55. 471 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by Joseph J. Timko, Steel Workers Organizing Committee, herein called the S. W. O. C., the National Labor Relations Board, herein called the Board, by Charles T. Douds, Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued a complaint, dated November 12, 1937, alleging that Moltrup Steel Products Company, Beaver Falls, Pennsylvania, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by a notice of hearing, was duly served upon the respondent. The complaint alleged, in substance, that on or about May 15; 1937, and at all times thereafter, the S. W. O. C. represented a majority of the respondent's employees in an appropriate unit; that the re- spondent had refused to bargain collectively with the S. W. O. C. as the exclusive bargaining representative of such employees; that the respondent had dominated and interfered, with, the,. formation and administration of, and contributed support to, a labor organiza- tion known as Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania, herein called the Independent ; that, on or about August 6, 1936, the respondent had discriminated in regard to the hire or tenure of employment of the entire night shift of its employees by laying off the said employees in order to discourage membership in a union ; that the respondent had discriminated with regard to the hire or tenure of employment of 14 named employees by refusing at all times to reinstate them to their employment ; and that by these and other acts, the respondent had interfered with, restrained, and coerced its employees in the exercise of their right to self-organiza- tion and to engage in concerted activities for their mutual aid and protection. On November 26, 1937, the respondent filed its answer, admitting certain allegations of the complaint but traversing others and making certain allegations by way of an affirmative defense. Pursuant to notice, a hearing on the complaint was held in Pitts- burgh, Pennsylvania, from February 7 to March 30, 1938, before William H. Griffin, the Trial Examiner duly designated by the Board. The Board, the respondent, the S. W. O. C., and the Independent MOLTRUP STEEL PRODUCTS COMPANY 473 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues of the case was afforded all parties. During the course of the' hearing, counsel for the Board moved that the complaint be amended to allege that pend- ing incorporation of the Independent an organization had been formed under the name of Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Penn- sylvania, herein called the Local Brotherhood, and that the Local Brotherhood was in reality the same organization as the Independent. Counsel for the Board also moved that the complaint be amended to delete the allegations thereof that the respondent had discriminated against Merle Boland, Joseph Smith, Frank Veres, Paul Dewhirst, Stanley Gamzalla, Leslie Alexander, Harry Behringer, Harry Cald- well, and Lloyd Goddard. These motions were granted by the Trial Examiner, and his rulings are hereby affirmed. The Trial Examiner also ruled on a number of other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were made. The rulings are hereby affirmed. At various stages of the proceedings, counsel for the respondent and for the Independent moved that the entire complaint be dismissed and also moved for dismissal of various specific allegations thereof. The Trial Examiner reserved ruling on these motions and on certain other motions to exclude testimony. The motions are hereby denied. On July 27, 1938, acting pursuant to Article II, Section 37 (a), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board ordered the proceedings transferred to and coiatinu4 before it. On September 12, 1938, acting pursuant to Article II, Section 38 (d), of said Rules and Regulations, the Board directed that Proposed Findings of Fact, Proposed Conclusions of Law, and a Proposed Order be issued and granted to the parties the right to request permission to file briefs and have oral argument before the Board. On June 23, 1939, the Board issued Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order herein, copies of which were duly served upon all parties, finding that the respond- ent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act. The respondent and the Independent thereafter filed exceptions to the Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board at Wash- ington, D. C., on August 10, 1939. The respondent and the Inde- pendent were represented by counsel and participated in the argu- 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. The Board has considered the exceptions of the respondent and of the Independent and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Pennsylvania corporation engaged in the man- ufacture of cold drawn steel bars, wire, machine keys , machine rack, moulding machine and engraving plates, and discs, at its plant located in Beaver Falls , Pennsylvania. Between 45 and 50 per cent of the raw materials used in such manufacture are obtained by the respondent from sources outside Pennsylvania , while approximately 84 per cent of the finished product is shipped to destinations outside that State. The respondent's annual sales exceed $1,500,000. Its product is distributed through sales agencies in New York and Massachusetts handling the respondent's product exclusively , as well as through 17 independent jobbers variously located in 11 different States. There are normally about 280 production employees at the respond- ent's Beaver Falls plant. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affili- ated with the Committee for Industrial Organization ,' herein called the C. I. 0., which represents Amalgamated Association of Iron, Steel & Tin Workers of North America, herein called the Amal- gamated, also a labor organization affiliated with the C. I. O. On January 23, 1937, Amalgamated Association of Iron, Steel & Tin Workers of North America issued a charter to, Lodge No. 1202, admitting to its membership production and maintenance employees of the respondent , excluding supervisory employees. Independent Brotherhood of Moltrup Steel Workers , Moltrup Steel Products Company of Beaver Falls, Pennsylvania , is an unaffiliated labor organization which is seeking incorporation under the laws of Pennsylvania, admitting to its membership employees of the respond- ent. Pending incorporation , the members of. Independent Brother- hood of Moltrup Steel Workers, Moltrup Steel Products Company of, Beaver Falls, Pennsylvania , have formed an unaffiliated labor organ- ization known as Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania. 1 Now Congress of Industrial Organizations. MOLTRUP STEEL PRODUCTS COMPANY 475 III. THE UNFAIR LABOR PRACTICES A. The chronology of events 1. The events prior to and pertaining to the lay-offs in August 1936 and the resumption of operations of the night shift in September 1936 Representatives of the S. W. O. C . began organization activities among the employees of the respondent about July 1, 1936, and held a series of public mass meetings from the latter part of July to November of that year . On one occasion early in July, an organizer who was distributing S. W. O. C . literature outside the respondent's plant was accosted by J. Frank Moltrup , the respondent's president. Moltrup inquired what the organizer expected to gain by his activity and asked if he had obtained a permit from local authorities to dis- tribute the S. W. O . C. literature. At this time, there existed at the respondent's plant an "Employee Representation Plan," herein called the E. R. P., which had been formed in 1934. Under the E. R. P., the employees annually elected representatives who met each month in the plant during working hours to discuss employee problems and who chose from their number three employees to constitute an "Em- ployees' Joint Representative Committee." This committee met with management representatives to discuss grievances . Meetings of the employee representatives were called by the management . The an- nual elections, the last of which was held in November ' 1936, took place in the plant during working hours . The employees received, their regular pay for time spent during working hours participating in the E. R. P. activities. About July 12, 1939, S. W. O. C. organizers met with 6 persons 2 employed on the respondent's night shift at the home of one of the employees . The six employees were at this time given S. W. O. C. membership application cards. Within a short period of time they succeeded in signing up a number of the night-shift employees. Within a few weeks , William McGraw and Matthew Eureich, day- shift employees, also became active in efforts to interest employees in the S. W. O. C. About the middle of July 1936, the respondent announced that thereafter the night shift would work 6 days each week and 8 hours each day instead of 5 days each week and 9 hours each day as had been the practice theretofore . Certain of the employees thereupon complained to Foreman John Rutter about the increase in hours and the fact that the change would necessitate working on Saturday after- noon and night . When they failed to obtain satisfaction from Rutter, 2Flenry Keppen, Samuel Cain, Merle Boland , Glenn Rose, Lloyd Goddard, and Lawrence Rump. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees attempted to get an E. R. P. representative to present the matter to the management, but he refused to do so. Samuel Cain, an employee, then drafted a petition protesting the proposed change in the hours of the night shift, and most of the night-shift employees signed it. The petition later was placed .in the locker of an E. R. P. representative with a request that it be presented to the management Shortly thereafter, however, it was confiscated by Foreman Rutter, acting upon instructions from General Foreman John Miller. Miller later told the men that they "had no right to form a petition." About this time, certain of the respondent's supervisory employees indicated disapproval of the C. I. 0. and of the union activities which were being carried on. Clarence Geiser, a foreman related by marriage to employees Paul Dewhirst and William McGraw, in- formed these two employees that they did not have to belong to a union to work for the respondent. He also cautioned Dewhirst not to sign anything, stating that he "didn't know what was going to happen or what might turn up." He warned McGraw, "Whatever you do, don't join that God damn union" or "they will fire. you quicker than Hell." 3 Foreman Rutter questioned Henry Keppen, an em- ployee, as to whether the latter had received any C. I. 0. literature and stated to Keppen that the "C. I. 0. is no damn good," that the C. I. 0. would take his money and let him "go to the devil" . and cause him to lose "lots of work"; and that the respondent would not recognize any labor organization except its "own company union." During the early part of August 1936, Rutter engaged in further attempts to discourage membership in the S. W. 0. C. Euriech, an employee on the day shift, testified that during this period Rutter approached him on a number of occasions, advising him to "stay away as far as you can from the S. W. 0.. C. and that it would be a waste of money for him to pay union dues inasmuch as the union would not get him anywhere. Euriech testified that Rutter also questioned him regarding his opinion of the S. W. O. C. and expressed curiosity as to whether an employee named Early would be among the first to join the S. W. 0. C. Rutter denied at the hearing that he had made the statements attributed to him by Euriech, but admitted having on one occasion informed Euriech that he need not join in a union in order to remain in the respondent's employ. He testified that he had made this statement only after Euriech himself had brought up the subject and stated that he was being "pressed" to join the S. W. 0. C.4 In view of the entire record, we conclude that Euriech's testimony is to 3 Although Geiser denied that he so warned McGraw , we do not give credence to such denial in view of all the circumstances. 4 Rutter also testified that, during a conversation , Lawrence Rump had brought up the subject of unions , whereupon Rutter advised him that he did not have to join a union to work for the respondent. MOLTRUP STEEL PRODUCTS COMPANY 477 be accepted rather than that of Rutter. An incident which occurred several days prior to Rutter's conversations with Euriech is indicative of Rutter's general attitude at this time. The evidence shows that about August 1 someone left a note on Euriech's machine reading, "Nice work, Bozo, you keep it up and you will get a penny lollypop raise and you will be in Class A with the rest 'of us." On learning of this, Rutter appropriated the note, stated to Euriech that, "some- body is going to pay for this," and sought to learn the identity of the writer of the note by comparing the writing on it with the time sheets filled in by various employees. He also discussed the note with General Foreman Miller since he felt that it "might lead to jangle- ment among the men." About August 5, 1936, Moltrup instructed Mervin Hahn, the re- spondent's paymaster, to ascertain for him the name of a certain employee who lived in a specified neighborhood in Beaver Falls and also the names of the night-shift employees "who were to be laid off" and who were meeting at the home of such employee. Moltrup testi- fied at the hearing that he sought this information inasmuch as he had heard that night-shift employees were leaving the plant during working hours to visit a nearby beer garden and inasmuch as he desired to question the employee living in'the vicinity of the beer garden regarding the truth of the rumor. In view of all the circum- stances, we are convinced, however, that Moltrup desired the informa- tion in order to learn the identity of night-shift employees who, he believed, were engaging in union activity. On August 5 and 6, 1936, the respondent laid off approximately 5 employees of the day shift, including Matthew Euriech and William McGraw, both of whom had participated in S. W. O. C. activity. Euriech was laid off on August 5 and McGraw on August 6. At the end of the night shift on August 6, 1936, the respondent also laid off most of the approximately 45 employees working on such shift, in- cluding Rump, Cain, Keppen, Boland, Rose, and Goddard, all of whom had met with S. W. O. C. organizers on July 12, 1936. A few of the night-shift employees were not laid off but were transferred to the day shift. The respondent informed the employees that they were being laid off because of "lack of orders." On August 7, 1936, Paymaster Hahn furnished to. Moltrup the name and address of the employee about whom Moltrup had inquired. At this time, Moltrup instructed Hahn to inform the men when they were paid off that the lay-offs were the result of "lack of orders." Hahn informed Moltrup that he could not conscientiously do so, whereupon Moltroup discharged him on the ground that the re- spondent did not "want anybody ... not 100 per cent for the com- pany." Although the respondent's witnesses attempted to minimize 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the extent of Hahn's knowledge respecting the actual condition of the respondent's business at the time of the lay-offs, we conclude that Hahn was in a position to known the condition of the respondent's business at that time s Shortly following his lay-off, Euriech on several occasions requested General Foreman Miller to reinstate him and also discussed the matter with Moltrup. Euriech testified that both Miller and Moltrup asked him whether he belonged to the S. W. O. C. and that, inasmuch as he desired employment, he denied being a member of that organization. Miller further inquired if another employee belonged to the S. W. O. C. Euriech testified that during his conversation with Moltrup, the latter expressed a desire that the men consult him before join- ing a union ; disparaged the S. W. O. C.; advised Euriech not to believe that Rump, Goddard, and Keppen were S. W. O. C. members, stating that "All they have got is a long sheet of paper with a lot of fellows' names on, to tell you that they have signed them, which they didn't, and make you believe it so you will sign" ; and declared that he would "have no union in his mill" unless the government in- tervened. Although Miller and Moltrup denied that they made the statements attributed to them by Euriech, we are convinced • on the basis of the entire record that such statements were made by them, and so find. Following Euriech's talk with Moltrup, the latter as- sured Euriech that he would be reemployed before reemployment of the other men who had been laid off. During the last week in August 1936, Euriech actually was reinstated by Clarence Small, plant super- intendent, who stated at the time that the respondent did not want any "labor trouble." Euriech continued his membership in the S. W. O. C. and was laid off a second time about the middle of September 1936. The lay-off was allegedly because of a lack of work, although 20 other employees were hired during this month. There- after during September Euriech twice applied to Miller for work, but was told that none was available. During the period following the lay-offs in August 1936, Moltrup, Miller, and Small each attended various of the S. W. O. C. mass meet- ings held in Beaver Falls. About October 1, Moltrup called together the E. R. P. employee representatives and requested them to attend S. W. O. C. meetings also in order to inform him of what took place. During September and October, Moltrup called all the employees into his office in separate groups of about 25 each and spoke to each group for approximately 45 minutes. Moltrup stated at the hearing that the _ 8 The evidence shows in this connection that Hahn had been in the respondent's employ for 20 years ; that in the course of his work Hahn compiled reports on the respondent's business for various governmental agencies, for the American Iron and Steel Institute, and foi• the Cold Finished Bar Institute; and that he had knowledge of the respondent's shipments and of the stock on hand. MOLTRUP STEEL PRODUCTS COMPANY 479 purpose of these meetings was to explain to the employees their rights under the Act. In support of this testimony the respondent intro- duced in evidence two mimeographed sheets entitled, "A Message to Employees-Facts About the Wagner Act," which Moltrup testified that he had in his possession while talking to the employees. It is to be noted in this connection that the mimeographed material sub- mitted in evidence contains quotations from a decision rendered by the Supreme Court of the United States on April 12, 1937,6 a date a number of months subsequent to Moltrup's talks to the employee groups. Moltrup admitted that during his talks he told the men to "keep their noses clean and keep their feet on the ground," warned them' "if they made any gestures to be sure that they were right in their movements," and requested them to inform him "if the pressure got too great on them." The evidence establishes, moreover, that during the course of the talks Moltrup stated that he could not under- stand why the employees would care to use "outside help" in handling their affairs; declared that he did not want any "coal diggers" to tell the men what to do ; requested the employees to inform him if they were asked to join a union; and expressed a determination to close the plant rather than sign a contract with any "outside union." On September 21, 1936, the respondent resumed the operation of its night shift, but did not reinstate leading S. W. O. C. members, includ- ing Rump, Cain, Keppen, McGraw, and Euriech, at such time or thereafter. During the period from August 6, 1936, to the date of the hearing, the respondent hired over 90 other persons, about 25 of whom had no previous experience in the work they were assigned. 2. The circumstances pertaining to the strike of June 1, 1937 Following the resumption of operation of the night shift in Sep- tember 1936, the S. W. O. C. organizational campaign continued and on January 23, 1937, Lodge 1202 was chartered . On March 10, 1937, the S. W. O. C. mailed to the respondent a copy of a proposed agree- ment. Thereafter on about March 23, Joseph J. Timko, subregional director of the S. W. O. 'C., attempted to communicate by telephone with Moltrup about the proposed contract, but was informed that Moltrup was out of town . On March 25 the S. W. O. C. mailed a. second proposed contract to the respondent and requested a prompt reply. The respondent having failed to reply to the letter, Timko again attempted to communicate with Moltrup by telephone but, after a few minutes' wait , he was informed that Moltrup was "not in." Timko was similarly unsuccessful in attempting to communicate with Moltrup early in April. a National Labor Relations Board v. Jones J Laughlin Steel Corporation, 301 U. S. 1. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the foregoing period, a number of the employee representa- tives under the E. R. P. joined the S. W. O. C. and at a meeting of . the representatives six of the eight voted to discontinue their activity in the E. R. P. on the ground that the majority of the employees had changed their views as to the type of organization they wished to rep- resent them . By letter to Superintendent Small dated April 6, 1937, the six representatives submitted their resignations as employee representatives. On April 9, 1937, Moltrup called three of the said representatives, Robert Provence, Wilbur Holmes, and Harold Makepeace, to his office. On this occasion the three employees were wearing C. I. O. buttons. Provence and Holmes testified that during the ensuing con- ference Moltrup stated that "the C . I. O. were all scums" and that the employee representatives were no better . They also testified that Moltrup pointed to Makepeace during the discussion and stated that he was "the cause of all this." Although Moltrup and James Phillips, the respondent's secretary and treasurer who was also present at the conference , denied that Moltrup made the alleged statements, we are convinced on the basis of the entire evidence that the testimony of Holmes and Provence is to be accepted. About April 20 Organizer Feeney Busarello succeeded in meeting Moltrup and arranged to hold a conference with him on April 26. At the conference on the latter date Busarello and another organizer asserted that the S. W. O. C. represented 90 per cent of the respond- ent's production employees and stated that they wished to negotiate a contract covering the employees in the plant . Moltrup thereupon remarked that for aught he knew the organizers might be "a couple of crooks." Claiming that, as far as he was aware , -Provence was the only S. W. O. C. member among the employees , he demanded that he be shown the S. W. O. C. membership list before entering into any negotiations . The S. W. O. C. representatives thereupon presented their S. W. O. C. credentials, and suggested that, in view of alleged previous discrimination by the respondent against S . W. O. C. mem- bers, either an election or a check of S. W. O. C. membership cards by a Board representative would be an appropriate method of deter- mining if the employees desired representation by the S. W. O. C. Rejecting this suggestion, Moltrup concluded , "Well, I can't discuss this matter with you until I get the list and I am not interested in any more conversation." When Busarello inquired whether the respond- ent would sign a contract with the S . W. O. C. if that organization proved that it represented a majority of the employees Moltrup de- clared that such a contract was "not necessary " and that the respond- ent previously had been "getting along all right" without "outsiders." During the conference Moltrup made no proposals other than his demand for production of the S. W. O. C. membership list. MOLTRUP STEEL PRODUCTS COMPANY 481 Two days after the conference, Busarello telephoned Moltrup and the latter again stated that he would not talk to any "outside" union representatives until shown the S. W. O. C. membership list. When Timko subsequently telephoned the plant and failed to reach Moltrup, he. thereafter waited outside the plant until Moltrup entered and then telephoned a second time. He was told that Moltrup had just left the plant. On about May 26, Timko once more telephoned but was told that Moltrup was out. About noon on Friday, May 28, Timko telegraphed the respondent stating that unless the respondent reached some -agreement with the S. W. O. C. by the following .Tuesday evening, June 1, he would not be responsible should the employees decide to strike. After the respondent failed to reply to Timko's telegram, about 175 of the members of Lodge 1202 participated in 2 meetings held on May 31 and June 1, respectively. As a result of the meetings the employees decided to go on strike and at 11 p. in. on June 1, a picket line was formed outside the plant. Production operations thereupon ceased. About the middle of June, representatives of the Board arranged a conference, which took place on June 17, between Timko and the respondent's officials while the strike was still in progress. At the outset of this meeting, Timko stated that the S. W. O. C. desired recognition as exclusive bargaining agent of the employees and sought to explain provisions of a -proposed contract to Moltrup.. As each section was presented, it was rejected by Moltrup, who remarked that it was not "necessary" and that he was not "interested" in the contract. Timko then offered to terminate the strike if Moltrup would consent to an election to determine whether the employees desired representation by the S. W. O. C. This offer was conditioned upon Moltrup's promising to sign a contract with the S. W. O. C. if it represented a majority. Although Moltrup flatly rejected this proposal, his testimony at the hearing was that he did not "have any reason," for doing so. He also rejected Timko's alternative offer to submit S. W. O. C. membership lists to the Board to be checked. During the conference Moltrup asserted that the respond- ent already was observing the terms of the proposed contract and would deal with any group representing a majority of the employees. Timko thereupon inquired whether Moltrup would be willing to put this statement in the form of a letter instead of signing a contract. Moltrup again refused. During the conference Moltrup stated, among other things, that the S. W. O. C. was not "responsible," that he had been getting along all right with his employees long be- fore he was approached by the S. W. O. C., that he was satisfied to continue to deal with his employees as he had in the pest, and 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was not going to recognize 'any union. Moltrup finally termi- nated the conference by leaving the room after telling Timko, "If that is your attitude, the meeting is over." Timko's request for a further meeting was rejected on the ground that the employees were "satisfied." 3. The back-to-work movement Shortly after June 17, 1937, Moltrup, Phillips, a number of fore- men, and a group of employees, held a meeting at the General Brod- head Hotel in Beaver Falls to discuss a resumption of operations. Thereafter, the employees and foremen present at the meeting can- vassed the other employees and sought to induce the S. W. O. C. members to abandon the strike and to return to work. In further- ance of these efforts, the respondent caused a notice to be published in a local newspaper on Jude 26, stating that the plant would be reopened on June 28. On the morning of June 28, about 20 em- ployees entered the plant without difficulty. When night-shift em- ployees sought to enter the plant in the afternoon, however, there ensued a brief 'scuffle participated in by such employees, the S. W. O. C. pickets, and a number of armed and unidentified deputy sheriffs who had collected outside the plant. During the scuffle, a picket was fatally wounded by a tear-gas shell 'discharged by one of the deputy sheriffs. Shortly thereafter, the deputy sheriffs left Beaver Falls and the attempt to operate the plant was discontinued. Subsequently a representative of the Board suggested' that Moltrup resume negotiations with the S. W. O. C., but Moltrup rejected the suggestion and stated that he would reopen the plant as soon as the respondent was able to obtain the necessary "protection." On June 29 and thereafter, officials of the respondent held ad- ditional meetings with foremen and certain of the employees at which plans again were discussed to induce the employees to return to work. Acting on instructions from Moltrup a number of the foremen col- laborated with the back-to-work leaders among the employees in soliciting other employees to return to their jobs. On July 7 the respondent resumed operations at its plant. Shortly thereafter, the members of Lodge 1202 voted to discontinue the strike and return to work. They did so within a few days after July 7. ' As part of the back-to-work movement, employees who were lead- ers therein laid plans to induce the other employees to withdraw from the S. W. O. C. and from Lodge 1202. In addition, as noted below, the back-to-work leaders planned the formation of the Independent as a means of combatting the S. W. O. C. About July 7, 1937, back- to-work leader Harry Yokel made arrangements with a local alder- man whereby, as Yokel then expressed it, "over a hundred" em- MOLTRUP STEEL PRODUCTS COMPANY 483 ployees could "swear off" the S. W. O. C. at a special reduced charge of 10 cents for the alderman's services. During the ensuing period of several weeks a number of, employee leaders in the back-to-work movement actively solicited a large number of S. W. O. C. members to sign a form letter in the alderman's office, expressing a desire to withdraw from the S. W. O. C. Although much of this solicitation took place prior to formation of the Independent, employees solicited were warned that unless they signed the-letter of withdrawal' from the S. W. O. C., they would not be permitted to join the Independent. In addition, the respondent's vice president, Fred Ward, on July 9 sought to induce Provence, the president of Lodge 1202, to give up his S. W. O. C. activity. On this occasion Ward called Provence away from -his work, remarked that the S. W. O. C. had had its "try" and failed, and asked Provence why he could not see things Ward's way. Within the next few days Provence was solicited by several employees to join the Independent,. although that organiza- tion purportedly did not come into existence until ' July 18. As a result of the activity carried on in this respect by back-to-work leaders and others, approximately 115 employees were induced to sign the form letter of withdrawal from the S. W. O. C. 4. The formation of the Independent and Local Brotherhood At one of the meetings prior to-July 7, 1937, at which plans were formulated to induce employees to return to work, Moltrup stated that the plant would reopen only if the respondent was "assured that production could continue in the mill." That such statement had a particular significance to the employees present is indicated by the testimony of Les Namath, a leader in the back-to-work movement, that about July 7 "there was talk among the men that we should organize a. group of our own to try to guarantee ourselves steady work if we possibly could instead of having someone else butt in..." On July 10, 1937, a number of the employees 7 who had been active in the back-to-work movement, and James Meadows, a sergeant of police of the Republic Steel Corporation, stationed at its Union Drawn plant at Beaver Falls, met at the General Brodhead Hotel in Beaver Falls to discuss the formation of an organization of the employees. The room in the hotel at which the meeting was held was secured by Louis Yokel, a back-to-work leader, and the charge therefor was made to the account of the respondent. After receipt by the respondent of a statement from the hotel including such charge, Phillips, the respondent's treasurer, made a cash payment T The employees included Louis Yokel, John Namath , Alex. Juhasz, Harry Geiser, William MacLean, Stanley .Skerkowski, Ed Graham,-Harry Yokel , and Kenneth Majors. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the entire amount called for by the statement. At the hearing Phillips denied that he knew that the statement included a charge for the room engaged by Yokel. He admitted, however, that statements received by the respondent customarily were checked and approved both by its purchasing department and by its assistant secretary- treasurer and that he himself had considered the charge to the extent that lke directed that it be entered against the respondent's "incidental administrative expense" account. He testified in the latter connection that he.thought the room- had. been used in the course of the back- to-work movement. The charge, however, was for use of the room on a date 3 days subsequent to the reopening of the plant and Phillips admitted at the hearing that he had noticed this fact. Under all the circumstances, we are convinced, and find, that Phillips knew that the payment which he made to the hotel included payment for the room secured by Yokel on July 10. At the aforesaid meeting, it was decided to form an organization of employees similar to that which had been formed at the Union Drawn Steel Company plant of Republic Steel Corporation, located in Beaver Falls. Harry Geiser was selected as temporary chairman of the organization and plans were made to hold a meeting of the employees on Sunday, July 18. Meadows suggested that the meeting be held at the local Elks Club. A few days after July 10, Meadows and John Namath requested of the steward of the Elks Club permission to use the club for the proposed meeting and were informed that consent of the club trus- tees would be necessary. C. T. McKane, one of the trustees, testified at the hearing that about this time he received a telephone call from Moltrup, requesting that the employees be permitted to hold a meeting at the club. He testified that he informed Moltrup that the permission would be granted, but that he thereafter informed Mol- trup by telephone that the consent was withdrawn inasmuch as the proposed meeting was to be held on Sunday afternoon and inasmuch as non-members were ordinarily excluded from the club at such time. Moltrup denied at the hearing that he had telephoned McKane relative to the use of the Elks Club and testified that he had not participated in any efforts to secure use of the club. Namath tes- tified that he obtained information that the Elks Club would not be available for the meeting but that he didn't inquire much about it" and did not definitely recall the source of the information. In view of the entire record and particularly the fact that McKane was a disinterested witness, we conclude that Moltrup attempted to secure permission for use of the Elks Club for the meeting in question. Following the failure to obtain use of the Elks Club, Meadows, sergeant of police for Republic Steel Corporation, and several of MOLTRUP STEEL PRODUCTS COMPANY 485 the employees who had been active in the back-to-work movement secured permission to hold the meeting at the Polish Falcons Hall in Beaver Falls. At the meeting which was held on July 18, Harry Geiser acted as chairman and Meadows was a principal speaker. During the course of his talk, Meadows predicted that John L. Lewis would "sell out" the S. W. O. C. members; stated that there was no necessity for an "outside" union and that a "brotherhood" without "outside interference" was desirable since money paid to such an organization would "stay at home"; and further stated that "twenty fellows" had agreed to form an independent union. Meadows ad- vised the men that they would not be permitted to join the Inde- pendent unless they first withdrew from the S. W. O. C. by signing the form letter in the alderman's office. He then called for employees to volunteer to serve as employee representatives in the new or- ganization and 11 persons who 'so volunteered were approved as representatives. Of the 11, at.least 7 had been leaders in the back-to- work movement." Shortly following the aforesaid meeting, the employee representa- tives selected at the meeting conferred with Meadows and John Namath at the General Brodhead Hotel. At Meadows'. suggestion, plans were discussed relative to incorporation of the organization of employees. It was decided to name the organization "Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania" and to hold a second meet- ing of the employees. At the second meeting, which was held on August 1, 1937, Meadows administered an oath or "obligation" to those present. About October 1937 papers were filed in a local court seeking incorporation of the Independent under the laws of the Common- wealth of Pennsylvania. The 11 employee representatives selected at the meeting on July 18 were designated in the papers as directors of the organization. Pending action upon the application for incor- poration, it was decided that the organization should function as an unincorporated association under the name "Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania." The 11 employee representatives of the Independent thereafter acted as the "executive committee" of the Local Brotherhood and the officers selected by the Independent served as officers of the Local Brotherhood. During the fall of 1937, the "executive committee" of the Local Brotherhood met on several occasions with Moltrup and other of- ficials of the respondent relative to recognition of the Local Brother- 8 Harry Geiser, Alex Juhasz, Ed Graham, Louis Yokel, Ed Hawthorne, Owen Murphy, and Charles Moegerle. 283030-11-vol. 10-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hood as bargaining agent of the employees, and to discuss a proposed vacation plan. Moltrup stated that the respondent would bargain with the Local Brotherhood or with any other group "as long as they were employees of his plant." Although he refused to grant vacations as requested, on the ground that business conditions would not permit him to do so, Moltrup stated that the respondent would try to stagger employment so as to divide the work among as many employees as possible. In the course of the negotiations, no proof was submitted relative to designation of the Independent or the Local Brotherhood as bargaining representative by the employees. During the period from September 17 to October 22, 1937, the respondent distributed to the employees a series of 6 pamphets, 5 of which discussed various aspects of the conduct of a business enter- prise and the sixth of which embodied a direct attack upon the Amalgamated.' The latter pamphlet, entitled "What is the Check Off", depicted a cringing worker seeking to ward off an unidentified hand clutching at his pay envelope and stated that under the rules of the Amalgamated a 2-per cent levy could be assessed against the wages of an Amalgamated member at any time and that a union member neither knew nor was able to ascertain who ultimately re- ceived his dues or for what purpose they might be used. The pamph- let was distributed at the plant entrance by Superintendent Small and one of the respondent's watchmen. B. Interference, restraint, and coercion In view of the facts above set forth, it is clear that the respondent has engaged in numerous acts of interference, restraint, and coercion. At the time the S. W. O. C. began its organizational efforts, there was in existence an Employee Representation Plan clearly sponsored and dominated by the respondent. The respondent took no steps at any time to dissolve the Plan and continued to deal with em- ployees on the basis of such Plan. Shortly after the S. W. O. C. began to organize, supervisory employees of the respondent actively discouraged membership in that organization by questioning em- ployees concerning their union affiliation, by statements detrimental to the C. I. O. and the S. W. O. C., and by threats of the conse- quences which would ensue if employees joined the S. W. O. C. During the period following the shut-down of the night shift on August 6, 1936,11 Moultrup held meetings of groups of employees at which he clearly indicated his hostility to any "outside union" and made numerous statements patently coercive. At about the same time, he sought to use the E. R. P. employee representatives as in- As noted in Section II above, the Amalgamated admits to membership employees of the respondent , and is represented by the S. W. O. C. "This part of the case 's discussed in detail in subsection E below. MOLTRUP STEEL PRODUCTS COMPANY 487 formers respecting S. W. 0. C. activity. When certain employees submitted their resignations as E. R. P. representatives, Moltrup again expressed his hostility to the C. I. 0. as well as to the repre- sentatives. During the S. W. 0. C. attempts to negotiate with the respondent, Moltrup characterized the S. W. 0. C. as irresponsible and stated that he was not going to recognize any union. When later requested to negotiate with the Independent, he stated that he would bargain with anyone "as long as they were employees of his plant." The officials and supervisory employees of the respondent actively participated in the attempts to induce individual employees to abandon the strike and return to work. After the formation of the Independent and Local Brotherhood, the respondent distributed a pamphlet containing a direct attack upon the Amalgamated. We find that by virtue of the acts and conduct set forth above the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. Domination of and interference with the Independent and the Local Brotherhood The formation of the Independent took place only after strong manifestations of hostility on the part of the respondent towards the S. W. 0. C. and all "outside unions" and which included discrimina- tion as to the employment of leading S. W. 0. C. members. As noted below, the respondent precipitated the strike in June 1937 by its refusal to bargain collectively with the S. W. 0. C. By con- tinuing its refusal to bargain the respondent prolonged the strike and ultimately succeeded in forcing the employees to return to work without recognition having been granted the S. W. 0. C. The back- to-work movement was largely promoted by the respondent's officials and formation of the Independent was an outgrowth of it. The employees who aided the respondent in such movement were leaders iiot only in the formation of the Independent but also in the efforts to have employees sign the letter of withdrawal from the S. W. 0. C. There is an apparent connection between Moltrup's request from the back-to-work leaders for assurance that "production could continue in the mill" and the formation of the Independent as a device to .combat the S. W. 0. C. The respondent further promoted the Inde- pendent by paying for the hotel room at which the initial steps were taken relative to the formation of the Independent and by attempting to secure permission for the use of the Elks Club for the meeting of .employees on July 18, 1937. After the Independent and the Local Brotherhood were formed, the respondent expressed a willingness to bargain with representatives of these organizations "as long as they were employees" of the respondent. Ogg DECISIONS OF NATIONALS LABOR RELATIONS BOARD In view of the facts set forth in subsection A above, it is clear that the Local Brotherhood is in fact the same organization as the Independent and that the respondent by its domination of and interference with the Independent and by contributing support thereto likewise dominated and interfered with the Local Brotherhood and contributed support to it. We find that the respondent has dominated and interfered with the formation and administration of the Independent and Local Brotherhood and contributed support thereto and that it has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The refusal to bargain- collectively 1. The appropriate unit The complaint alleges, and the respondent admits in its answer thereto, that all the respondent's production employees, excluding clerical and office workers, foremen, and supervisory employees, con- stitute an appropriate bargaining unit. We find no reason to conclude that such unit is inappropriate. We find that all the production employees of the respondent, excluding clerical and office workers, foremen, and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining and that such unit will' insure to the employees of the respondent the full benefit of their right to collective bargaining and otherwise effectuate the policies of the Act. 2. Representation by the S. W. O. C. of a majority in the appropriate unit There was introduced in evidence at the hearing the pay roll of the respondent for the period ending May 30, 1937, containing the names of 271 employees within the unit which we have found to be appro- priate. There were also submitted in evidence 254 membership appli- cation cards containing designations of the S. W. O. C. as bargaining representative. Of the 254 cards, 191 are dated prior to May 30, 1937, and bear the names of persons within the appropriate unit whose names appear on the pay roll of that date." After a check of the cards by counsel for the respondent and by counsel for the Board,. the respondent challenged the validity of the signatures on 14 of the said 191 cards and challenged generally 2 additional cards. As to the cards not challenged counsel for the respondent agreed n There were no identifiable cards as to six employees who testified that they had joined the S. W. 0. C. Although these employees may be regarded as S. W . O. C. members on May 30, 1937 , it is unnecessary to include them in computation of the S. W. O. C. majority. MOLTRUP STEEL PRODUCTS COMPANY 489 that the signatures thereon "appear to be the signatures of the persons purporting to have signed" them. Since four employees whose signatures were challenged subsequently testified that they had signed cards, the challenge as to them may be disregarded. Nine employees, other than those whose cards were challenged, variously testified that they had not attended S. W. O. C. meetings or paid dues over a long period of time prior to May 30, that they had orally withdrawn from the S. W. O. C. prior to May 30, that they had joined the S. W. O. C. solely because of threats, or that their names had been signed without authority.12 Even if the 12 remaining challenged cards and the 9 cards bearing the names of employees who testified as aforesaid are excluded, there remain the cards of 170 employees listed on the pay roll. We conclude, therefore, that the S. W. O. C. represented a majority of the employees within the appropriate unit on and after May 30, 1937. Through the testimony of a large number of employees, supported by signatures to petitions 13 and membership cards, the respondent sought to show that about 175 of the employees had joined the In- dependent after July 1937. It also was shown that a large number ,of S. W. O. C. members had signed the form letter addressed to the 'S. W. O. C., expressing a desire to withdraw from that organization and from the Amalgamated. As noted above, the respondent domi- nated and interfered with the formation and administration of the Independent, and the inducement of employees to sign the letter of withdrawal from the S. W. O. C. was but' one aspect of the activities participated in by the respondent which culminated in formation of the Independent. In addition, the growth of the Independent and the signing of the letter of withdrawal followed a series of violations of the Act by the respondent of such serious nature that they could not have failed to exert a coercive influence upon the employees to 'disavow membership in the S. W. O. C. irrespective of their wishes.14 As we have already had occasion to observe in a number of similar -cases," it is manifest that the purposes of the Act require that the respondent should not be permitted to evade its duty under Sec- is This testimony was elicited at the instance of the respondent and in the presence of officials of the respondent. See Matter of May Knitting Company. Inc. and United Whole- sale and Warehouse Employees of New York , Local 65, C. I. 0., 9 N. L. R. B. 938. 13 An appreciable number of such signatures were spurious. 14 A number of those signing the letter of withdrawal stated that they did so because of the strike . As noted below, the strike resulted from the respondent's unlawful refusal to bargain with the S. W. 0. C. 15 Cf. Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodges Nos. 64, 1010, and 1101, 9 N. L. R . B. 783 ; Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee, Western Local, 10 N. L. R. B. 407 ; Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No . 1139, 10 N. L. R. B. 33; Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, etc., 10 N. L . R. B. 963. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8 (5) of the Act by the expedient of violating other provisions of the Act. The majority status of.the S. W. O. C. prior to and during the strike of 1937 is therefore not to be regarded as having been affected thereafter by virtue of membership in the Independent or the signing of the form letter of withdrawal from the S. W. O. C. . We find that on May 30, 1937, and at all times thereafter, the S. W. O. C. was the duly designated representative of the majority of the employees of the respondent in the appropriate unit. Pursuant to Section 9 (a) of the Act, it was therefore at all such times the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain As noted above, the S. W. O. C. on March 10, 1937, senit to the respondent a proposed contract and thereafter at various times un- successfully attempted to obtain conferences with the respondent's officials to discuss the matter of bargaining. During the period from March 10 to the strike beginning June 1, 1937, the respondent evaded, meeting S . W. O. C. representatives on all occasions other than April 26. At the meeting on this day the respondent refused to enter into any negotiations with the S. W. O. C. representatives unless it was furnished a list of the S. W. O. C. members, and further took the position that it would not sign a contract with the S. W. O. C. even if that organization represented a majority of the employees since previously it had been "getting along all right." The respond- ent on this date also rejected a proposal made by the S. W. O. C. that an election be held to determine the desires of the employees with regard to representation. Upon receiving the S. W. O. C. telegram of May 28, indicating the likelihood of a strike unless the respondent reached some agreement with the S. W. O. C. by the evening of June 1, the respondent failed to communicate with the S. W. O. C. By thus ignoring this last of a series of efforts to initiate bargaining negotiations the respondent made clear its intention not to bargain with the S. W. O. C. On June 17, 1937, the S. W. O. C. finally obtained a conference with the respondent at which Moltrup characterized the S. W. O. C. as not "responsible" and stated, among other things, that the respond- eut would not recognize any union. The respondent refused at this time to discuss the proposed contract submitted by the S. W. O. C. and rejected proposals for a consent election and for a check of the S. W. O. C. membership cards by a representative of the Board. Shortly after the unsuccessful attempt to reopen the plant on June 28, Moltrup flatly refused to meet S. W. O. C. representatives. MOLTRUP STEEL PRODUCTS COMPANY 491 At the hearing, the respondent contended that the sole obstacle to negotiations during the period prior to the strike was the refusal of the S. W. 0. C. to submit its membership cards to the respondent and that the respondent at the meeting on June 17, 1937, merely refused to consider the question of a signed contract. Under the circumstances of this case, and in view of the alleged discrimination against S. W. 0. C. members, the respondent's persistent demand for a list identifying S. W. 0. C. members may in itself be regarded as intimidatory. In any event, inasmuch as the S. W. 0. C. on April 26 proposed reasonable procedures whereby the respondent could ascertain whether the S. W. 0. C. represented a majority of the employees and inasmuch as the respondent rejected such proce- dures,'the respondent's refusals to bargain could not be justified upon the basis of the refusal of the S. W. 0. C. to submit its membership cards to the respondent. We have previously pointed out in our decisions that the duty to bargain collectively includes an obligation to cooperate to a reasonable extent when a labor organization is attempting to prove its majority."' The respondent's failure to reply to the S. W. 0. C. telegram of May 28 under the circumstances, demonstrates the respondent's unwillingness to cooperate to a rea- sonable extent in the bargaining procedure. Even if the respondent's contention that it merely refused to enter into a signed agreement on June 17, 1937, were accepted as a correct statement of the situation, it is clear that this refusal was based only on such considerations as the alleged irresponsibility of the S. W. 0. C. and would in itself constitute a refusal to bargain within the meaning of Section 8 (5) of the Act 17 We think it clear, from the facts set forth above, that the respond- ent under no circumstances intended to recognize the S. W. 0. C. or to bargain collectively with it. This conclusion is further supported by the evidence of the respondent's activities connected with the back- to-work movement, of the respondent's long-standing opposition to S. W. 0. C. activity among the employees, of the respondent's dom- ination of and interference with the formation of the Independent, of the respondent's announced willingness to negotiate with repre- sentatives of the Independent "as long as they were employees" of 16 Cf. Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1719, 7 N. L. R. B. 714; Matter of MoNeeley & Price Company and National Leather Workers Association, Local No. 30, of the C. I. O., 6 N. L. It. B. 800. 17 Ward, the respondent's vice president, testified that prior to the meeting the re- spondent's officials bad determined not to sign a contract with the S. W. O. C. Phillips. the respondent's treasurer explained this determination on the grounds that the S. W. O. C. was "irresponsible" and that recognition of the S. W. O. C. would be injurious to the respondent's business. Neither of these grounds relate to the mere act of signing a contract with the S. W. O. C. On the contrary, they show that the respondent was fully determined not to bargain in good faith with the S. W. O. C. tinder any circumstances. 492 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD the respondent, and of the respondent 's refusal after June 17, 1937, to -meet with the S. W. 0. C. representatives ;for the purpose of settling the strike. We find that on May 30, 1937, and at all times thereafter , the re- spondent refused to bargain collectively with the S . W. 0. C. as the representatives of its employees in respect to rates of pay , wages, hours of employment, and other conditions of employment, and that it thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. E. Discrimination with regard to hire and tenure o l employment The amended complaint alleges that by laying off its night shift on or about August 6, 1936, and by thereafter denying reinstatement to Lawrence Rump, Samuel Cain, Henry Keppen, William McGraw, and Matthew Euriech, the respondent discriminated with regard to hire and tenure of employment , thereby discouraging membership in the S. W. O. C. Rump, Cain , Keppen, and McGraw all were members of, and active in, the S. W. 0. C. at this time. Although Euriech was actively interested in the S. W. 0. C., it does not appear that he signed a membership card until August 6. As noted in Section III, A, 1, above, Rump, Cain,.and Keppen were among the approximately 45 men employed on the night shift at the time its operation was discontinued on August 6. In connection with discontinuance of the night shift, the respondent. transferred five or more men from the night shift to. the day shift, while several clay-shift employees were laid off. Included in this group of clay-shift employees were McGraw and Euriech, who were laid off on August 5 and 6, 1936, respectively. In its answer the respondent denied discriminating against the men named in the complaint , and averred that the lay-off of the night- shift employees was "due to lack of orders." Prior to August 1936, the respondent operated its night shift during the periods of favorable business conditions, but did not operate'it during slack periods. In commencing operation of a given night shift, it, was the respondent 's practice to transfer experienced day-shift employees to the night shift, and thereafter add less ex- perienced employees to this nucleus of experienced men. Prior to 1936 it had been customary to transfer the experienced men back to the day shift upon discontinuance of the night shift. Rump and Cain had been thus transferred between the day and night shifts on prior occasions . These two men were not accorded transfers to the day shift when operation of the night shift was discontinued MOLTRUP STEEL PRODUCTS COMPANY 493 in August 1936; 18 although at least five other employees were trans- ferred at,that time.' Rump, Cain, Keppen, and Euriech all testified from personal observation that during July 1936, the respondent had an exceptionally large volume of unfilled orders on hand. This testimony was based on copies of the respondent's orders which were contained in "schedule books" used by the men in the course of their work." The respondent introduced much testimony to show that business conditions necessitated curtailment of operations in August 1936, and thus required the lay-offs made at that time. A large part of this testimony, relating to the steel industry in general, may be briefly stated as follows : About a month prior to the end of each calendar quarter of the year it is customary for hot rolled steel mills to announce prices of steel for the ensuing quarter; the announcement at such time of a change in price of hot rolled steel invariably is paralleled by a sym- pathetic change in the price of cold drawn steel which is announced shortly thereafter; during the period of about a month after announce- ment. of a price increase and prior to its effective date orders may be placed at the old price for future delivery; as a result the ,Mnounce- ment of a price increase for an ensuing quarter is accompanied by a marked upturn in the number of orders placed, which continues until the effective date of the advanced price, but which is followed by a period of decline in placing of orders. Ordinarily price increases do not occur in successive quarters. On May 26, 1936, the respondent announced a price increase effective July 1. During the month of June it booked 3,120 tons of new orders, in contrast to an average of about 1,365 tons of new orders booked during each, of the first 5 months in 1936. In connection with this evidence, the respondent's vice president and sales manager, Ward, testified that early in May he noticed that the respondent's "backlog" of unfilled orders had reached a low level, and thereafter he learned that important customers did not contemplate placing any orders in the near future. His testimony was that these facts, together with his knowledge that a drop in the number of orders placed usually followed the effective date of a price increase, led him to tell Moltrup in July that business would be dull thereafter. Moltrup asserted that after Ward had requested that the night shift be discon- 's About a month prior to the lay-off, Rump asked Foreman Rutter for a transfer. Rutter replied that Rump would have to remain on the night shift since experienced employees, capable of working without supervision, were required there. 10 These men were Stanley Olkoski, Ed Kroske, John Namath, Fred Farkas, and Oscar Ebensberger. Apparently one other man, identified only as "Nick," was given such a transfer. 20 It also appears that about July 1, 1936, the respondent sought to increase working hours 3 hours per man per week. In addition, 11 new employees were hired during the 3 weeks preceding the lay-offs. 0 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I tinued, he checked the amount of finished goods on hand and the "back- log" of unfilled orders. He further stated that the amount of finished goods usually was a decisive factor in discontinuance of the night shift. Seeking to discredit the testimony of Rump, Keppen, Cain, and Euriech that the respondent's schedule books contained an exception- ally large volume of unfilled orders during July, a number of the respondent's witnesses claimed that all information needed by em- ployees during work was set forth on tags attached to the rough stock used, so that there was no occasion for an employee to refer to the schedule books. It was shown, however, that shortly before the lay-off the books were removed from their customary place in the plant and locked in the foreman's office. In the course of their work thereafter, it was necessary for night-shift employees to have Foreman Makowski himself refer to the schedule books for the same type of information which the employees themselves previously had obtained. We are con- vinced that in the ordinary course of their work prior to August 1936 the employees had occasion to refer to the schedule books for information. The testimony of the four employees that business conditions were favorable in August 1936, is fully corroborated by one of the respond- ent's exhibits. This shows that the average finished-goods inventory at the close of each of the first 6 months of 1936 was 3,423 tons while at the end of July such inventory was but 3,210 tons. The average quantity of orders booked during each of the 5 months of 1936 prior to the large influx of orders during June was 1,365 tons. During this period, the respondent built up its night shift by the gradual addition thereto of most of the meal who were on the night shift at the time of the lay-off. During July when business conditions allegedly necessi- tated discontinuance of the night shift, approximately 1,518 tons of new orders were received by the respondent. At the same time the average amount of unshipped orders on hand at the end of each of the first 5 months was 1,135 tons, and, after jumping to 2,275 tons in June, this "backlog" of unfilled orders continued at the high level of 2,034 tons at the end of July. As we have noted in Section III, A, 1, above, Hahn, the respondent's paymaster, refused to inform the employees on August 7, 1936, that the lay-offs were the result of a "lack of orders" on the ground that he could not conscientiously do so. By virtue of his position and duties, Hahn. was in *a position to know the facts with respect to the condition of the respondent's business.21 In view of all the evidence, we are convinced that the lay-offs in August 1936 did not result from "lack of orders" or from' any other unfavorable business condition. We so find. 21 Hahn's duties in the respondent's employ are discussed in Section III, A, 1, above. See especially footnote 5. _MOLTRUP STEEL PRODUCTS COMPANY 495 In seeking to determine the true reason for the lay-offs, we note that S. W. O. C. activity among the employees, particularly those on the night shift, had commenced shortly before, in July. As shown in Section III, Al 1, above, the unrest among the employees which existed during July was known to the respondent as a result of abortive attempts to protest against increased hours of work, and prior to the lay-off foremen on several occasions warned employees to refrain from S. W. O. C. activity. At about the same time as these events Moltrup became aware of the S. W. O. C. activity among the employees and attempted to learn the identity of participants therein. Following the lay-off the respondent's official attended S. W. O. C. mass meetings and after the respondent decided to resume the night shift Moltrup delivered a series of talks designed to warn the men against further S. W. O. C. activity. He also sought to use E. R. P. representatives as informers respecting S. W. O. C. affairs. On one occasion, shortly after the lay-offs, he admitted to Euriech that he had been aware of the S. W. O. C. activity among night-shift employees, questioned Euriech about his S. W. O. C. membership and at the same time expressed hostility toward the S. W. O. C. In view of these circumstances, as well as all the other evidence, we are convinced that the respondent effected the lay-offs in August 1936 both as a warning to its employees to refrain from S. W. O. C. activity and also in order to discriminate against S. W. O. C. leaders. During the last week • in August 1936, the respondent reinstated Euriech after the latter had, upon being questioned by officials of the respondent, denied that he was a member of the S. W. O. C. Euriech thereafter continued his membership in the S. W. O. C. and attended S. W. O. C. mass meetings. As noted above, certain of these meetings were attended by Moltrup, Small, and Miller, officials of the respondent. Euriech was laid off a second time about Septem- ber 12, 1936, allegedly because of lack of work. During September, however, the respondent hired 20 other employees. One of the twenty was John Vysomski, who was hired on September 8, 1936, to do work similar to that done by Euriech. Vysomski had no previous experience in this work. In view of the circumstances, we are convinced that the lay-off was the result of Euriech's union member- ship and activity rather than of a lack of work. On September 21, 1936, the respondent resumed operation of the night shift and called a number of employees back to work. Rump, Cain, Keppen, McGraw, and Euriech, however, were not given em- ployment at this time or thereafter. During the period from the lay-offs in August 1936, until November 30, 1936, the respondent employed or reinstated approximately 44 men, including at least 7 who had no previous experience in the work assigned to them. On November 30; 1936, the number of the persons in the employ of 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent was substantially the same as the number employed at the time of the lay-off in August 1936. Between November 30, 1936, and the date of the hearing, about 50 additional men were hired by the respondent, approximately 18 of whom were without experience in the work for which they were engaged. During December 1936 and January 1937, Rump, Keppen, Cain, Euriech, and McGraw , visited the plant of the respondent and unsuc- cessfully sought work. During conferences on January 20, April 26, June 17, and October 11 , 1937, representatives of the Board and representatives of the S. W. O. C. likewise unsuccessfully sought to have the 5 men reinstated . In the middle of July 1937 , Keppen asked Superintendent Small for reinstatement and was told by Small, "you have no job here . . . you got mixed up with a bunch of radical miners." During the period covered by these attempts to obtain re- instatement, the respondent continued to employ other men from time to time. At the time of the hearing, operation of the night shift was con- tinued by the respondent despite business conditions appreciably less favorable than in August 1936. Moltrup attributed this to the fact that it was "awfully hard breaking in new men." Had the respondent chosen to reinstate Rump, Cain , Keppen, McGraw, and Euriech there would have been no necessity for "breaking them in ." During a number of years in the respondent's employ, Cain had been a die maker, crane operator , and bar drawer. Rump had served the respondent a number of years as a bar drawer and saw operator. Keppen had been employed by the respondent on three different occasions as wire block helper and bar drawer on a variety of ma- chines. Euriech, with 14 years' experience in the cold drawn steel industry., originally - entered .the respondent's employ in 1935, as a bar drawer, and had been rewarded for efficient work by a 5-cent increase in his hourly wage. McGraw, with previous experience, was employed by the respondent in February 1936 as a punch straightener and thereafter received a 3-cent increase in his hourly wage. During his employment he also worked temporarily in the shipping room and as a cracker operator . Several of the respondent's witnesses disparaged the quality of McGraw 's work but General Foreman Miller asserted that no employee would be retained over a week if unable to do his work "right." Miller also admitted that McGraw had "gotten on to" his work "pretty fair." We are satisfied, and find, that McGraw was a competent employee. We find that by laying off Lawrence Rump, Samuel Cain, Henry Keppen, and Matthew Euriech on August 6, and William McGraw on August 5, 1936, the respondent discriminated with regard to the hire and tenure of employment of these men , thereby discouraging membership in the S. W. O. C. We find that by the discharge of MOLTRUP STEEL PRODUCTS COMPANY 497 Matthew Euriech during September 1936, following his temporary reemployment, the respondent discriminated with regard to his hire and tenure of employment, thereby discouraging membership in the S. W. 0. C. We find that by failing to reinstate Lawrence Rump, Samuel Cain, Henry Keppen, William McGraw, and Matthew Euriech to employment following.their discriminatory lay-offs, the respondent further discriminated with regard to the hire and tenure of employment of these men, thereby discouraging membership in the S. W. 0. C. The respondent in its exceptions contends that at the time of the hearing Euriech had obtained employment substantially equivalent to that from which he was discriminatorily discharged, and thus could no longer be regarded as an "employee" of the respondent or entitled to reinstatement. It appears that on March 16, 1937, Euriech obtained work as a wire drawer in Ellwood City, a town some distance removed from Beaver Falls, where Euriech resided. At the time of his lay-off in August of 1936, Euriech received 50 cents an hour, whereas he initially received 55 cents on the Ellwood City job. About a month prior to the, hearing, his Ellwood City wage was raised to 60 cents an hour. In the meantime, however, there had been general wage increases in the respondent's plant which, if applied to Euriech without discrimination, would have increased his rate of pay to substantially more than that which he received on' his new job.22 Since Euriech appeared at the hearing seeking reinstatement, it may be inferred that,he himself regards the location away from his home and the lower wage of his Ellwood City job as factors making it not substantially equivalent to the employment which he would have had but for the respondent's discrimination against him.23 We find that at the time of the hearing Euriech had not obtained substantially equivalent employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and 21 In late 1936 and early 1937 there were general wage increases in the respondent's plant as a result of which the rate of pay of ordinary laborers was increased from 48 cents to 62%/2 cents per hour. The rates of other employees were increased in approxi- mately the same proportion . Clyde Walker, a laborer who was promoted to drawing- machine operator subsequent to the discriminatory discharge of Euriech from such a position , was paid 65 cents an hour at the time of the hearing . Joseph Terraccio , a draw- ing-machine operator who was receiving 69 cents per hour at the' time of the hearing. testified that at that time no drawing-machine operator was receiving less than 65 cents per hour. 23 Cf. Matter of Mooresville Cotton Mills and Local No . 1221, United Textile Workers of America, 15 N. L. R. B. 416:- 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the, respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging therein. We shall also order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Independent, and the Local Brotherhood, and has contributed support thereto. Under these circumstances, neither the Independent nor the Local Brother- hood can offer. to the employees the free representation for the pur- poses of collective bargaining ' which is guaranteed by the Act. We shall, therefore, order the respondent to withdraw both from the Independent and from the Local Brotherhood all recognition as representative or representatives of the respondent's employees for the purposes of collective bargaining, and to disestablish the Inde- pendent and the Local Brotherhood as such representative or representatives. We have found that by laying off Lawrence Rump, Samuel Cain, Henry Keppen, and Matthew Euriech on August 6, 1936, by laying off William McGraw on August 5, 1936, by discharging Matthew Euriech during September 1936, following his temporary reemploy- ment beginning the last week in August 1936, and by failing to rein- state said employees, the respondent has discriminated against the said employees in regard to their hire and tenure of employment. We shall, therefore, order the respondent to reinstate these employees and to make them whole for any loss of pay they have suffered by reason of the discrimination against them, by payment to Rump, Cain, Keppen, and McGraw, respectively, of a sum of money equal to the amount each normally would have earned as wages from the date of the discrimination against him until the date of the offer of rein- statement to him, less his net earnings =' during said period, and by payment to Euriech of a sum of money equal to the amount he nor- 24 By "net earnings" is meant earnings less expenses, 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 unlawful discrimination against him and the consequent necessity of his seeking employment else- where. 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. Monies received for work performed upon Federal. State, county, municipal, or other work-relief projects are not considered as earnings. but, as provided below in the Order. shall be deducted from the sum due the employee, and the amount thereof shall be.paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. MOLTRUP STEEL PRODUCTS COMPANY 499 orally would have earned as wages from August 6, 1936, to his temporary reinstatement and from the date of the second discrimina- tion against him, in September 1936 to the date of the offer of reinstatement to him, less his net earnings during said periods. We have found that on April 26, 1937, and at all times thereafter, the respondent refused to- bargain collectively with the S. W. O. C. as the representative of its employees within an appropriate unit. In connection with its refusals to bargain, the respondent on several occasions expressed its determination not to sign any agreement with the S. W..O. C. regardless of the terms. thereof. We shall order the respondent, upon request, to bargain collectively with the S. W. O. C. as the exclusive representative of the production employees of the respondent, excluding clerical and office workers, foremen, and super- visory employees, in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. We further'shall order the respondent, if any understanding is reached on any of the afore- said matters and the respondent is requested by the S. W. O. C. to do so, to embody such understanding in a signed agreement. Upon the basis of the above findings of fact and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee ; Amalgamated Associa- tion of Iron, Steel and Tin Workers of North America, Lodge No. 1202; Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania; and Local Independent Brotherhood of Steel Workers of Moltrup Steel Prod- ucts Company of Beaver Falls, Pennsylvania, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. All production employees of the respondent, excluding clerical .and office workers, foremen, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Steel Workers Organizing Committee was on May 30, 1937, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Steel Workers Organiz- ing Committee as the exclusive representative of the employees in the above-stated unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. The respondent, by dominating and interfering with the forma- tion and administration of, and contributing support to Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Com- 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany of Beaver Falls, Pennsylvania, and Local Independent Brother- hood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania , has engaged in and is engaging in unfair labor practices, within the-Ineaning of Section 8 (2) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of Lawrence Rump, Samuel Cain; Henry Keppen , William McGraw, and Matthew Euriech , thereby discouraging membership in Steel Workers Organizing Committee and in Amalgamated Associa- tion of Iron, Steel and Tin Workers of North America , Lodge No. 1202, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and (7) of the Act. 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 respond- ent, Moltrup Steel Products Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a.) In any manner dominating or interfering with the administra- tion of Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls , Pennsylvania , or with the administration of Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania, or with the formation. or administration of any other labor organiza- tion of its employees, and from contributing financial or other sup- port to Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania, or to Local Independent Brotherhood of Steel Workers of Moltrup Steel Prod- ucts Company of Beaver Falls, Pennsylvania , or. any other labor organization of its employees; (b) Recognizing Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsyl- vania, or Local Independent Brotherhood of Steel Workers of Mol- trup Steel Products Company of Beaver Falls, Pennsylvania, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, wages, rates of pay , hoi irs of employment , or other conditions of employment; MOLTRUP STEEL PRODUCTS COMPANY 501 (c) Discouraging membership in Steel Workers Organizing Com- mittee, in Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1202, or in any other labor organization of its employees , by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (d) Refusing to bargain collectively with Steel Workers Organ- izing Committee as the exclusive representative of its production employees excluding clerical and office workers, foremen , and super- visory employees ; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Independent Brotherhood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania, and from Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania, 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 employment, and completely disestablish Independent Brother- hood of Moltrup Steel Workers, Moltrup Steel Products Company of Beaver Falls, Pennsylvania , and Local Independent Brotherhood of Steel Workers of Moltrup Steel Products Company of Beaver Falls, Pennsylvania, as such representative; (b) Upon request, bargain collectively with Steel Workers Organ- izing Committee, as the exclusive representative of its production employees excluding clerical and office workers, foremen , and super- visory employees , in respect to rates of pay, wages , hours of employ- ment, and other conditions of employment ; and, if an understanding is reached on any such matters, upon request, embody said under- standing in a signed agreement ; (c) Offer to Lawrence Rump, Samuel Cain, Henry Keppen, Wil- liam McGraw, and Matthew Euriech immediate and full reinstatement to their former or substantially equivalent positions , without preju- dice to their seniority and other rights and privileges; 253030-41-vol, 19--33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Make whole Lawrence Rump, Samuel Cain, Henry Keppen, William McGraw, and Matthew Euriech for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period from the date of the dis- crimination against him by the respondent to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work per- formed upon Federal, State , county, municipal , or other work-relief' projects, and pay over the amount, so deducted , to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments which supplied the funds for said work- relief projects; (e) Post immediately in conspicuous places in each department. of the Beaver Falls plant, notices stating : that the respondent will. cease and desist in the manner set forth in 1 (a ), ( b), (c), (d), and (e) ; that the respondent will take the affirmative action set forth in 2 (a), (b), (c), and (d ) of this Order; and that the respondent's employees are free to become or remain members of the S. W. O. C. and that the respondent will not discriminate against any employee- because of membership or activity in that organization; (f) Maintain such notices for a period of at least sixty (60) consecutive days from the date of posting; (g) Notify the Regional Director for the Sixth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith.