The Colorado Fuel and Iron Corp.

In the Matter of THE COLORADO FUEL AND IRON CORPORATION and INTERNATIONAL UNION OF MINE, MILL, AND SMELTER WORKERS, LOCAL 442 In the Matter of THE COLORADO FUEL AND IRON CORPORATION and STEEL WORKERS ORGANIZING CODIMn EE Cases Nos. C-983, R-1100, and C-984.-Decided March, 29, 1940 Iron and Steel Industry--Interference , Restra,nt, and Coercion : anti-union statements ; threats of shut-down ; responsibility for statements of supervisory employees ; rejection of contention that statements not coercive ; employer ordered to cease such practices-Conipany-Dornrraated Unions: reorganization of joint representation plan by employee representatives with participation of employer ; verbal changes with no alteration in structure of plan ; continuity in operation of old and new organizations ; employer's continuation of control and domination of, by transfer of provisions covering internal structure of labor organization to collective agreement with employer ; contribution of financial and other support , including payment to employee representatives for meeting pre- liminary to bargaining with respondent ; irrelevance of election conducted by such organization to question of domination ; employer support, sponsorship and advocacy in contrast to hostility to rival affiliated labor organization ; employer ordered to disestablish organizations as agencies for collective bargaining and to cease giving effect to contracts with said organizations-Unit Appropriate for Collective Bargaining : production and maintenance employees, exclusive of supervisory and clerical employees ; stipulation as to-Representatives : proof of choice: petition designating union as bargaining representative and union mem- bership records ; dual membership in dominated oganization : participation in affairs of dominated organization constitute no evidence of revocation of desig- nation of-Collective Bargaining : refusal to consider union 's proposals or submit counterproposals ; campaign to discredit and destroy union ; promotion, sponsor- ship, and support of rival dominated labor organization and,graut of recognition to and execution of agreement with such organization ; employer ordered to bargain-Investigation of Representatives : petition for dismissed , in view of order to bargain. Mr. Charles A. Graham, for the Board. Mr. Fred Farrar, of Denver, Colo., and Cravath, DeGersdorff, Swavne & Wood, of New York City, by Messrs. John Morse, Bruce Bromley, and Donald 0. S2vatland, for the respondent. Messrs. A. T. Stewart, Andrew J. Diamond, and Jan-663 Irivh?,, of Pueblo, Colo., for the Pueblo Organization. Mr. David Rein, of counsel to the Board. 22 N L R B., No. 14 184 THE COLORADO FUEL AND IRON CORPORATION 185 DECISION AND ORDER STATEMENT OF THE CASE On March 7, 1938, International Union of Mine, Mill, and Smelter Workers,, Local 442, herein called Local 442, duly filed with the Re- gional Director for the Twenty-second Region (Denver, Colorado), charges alleging that The Colorado Fuel and Iron Corporation, herein called the respondent, had engaged in unfair labor practices at its iron mine at Sunrise, Wyoming. On March 30, 1938, Steel Workers Organizing Committee, herein called the S. W. O. C., filed charges alleging that the respondent had engaged in unfair labor practices at its steel mill at Pueblo, Colorado. Thereafter, on April 11, 1938, Local 442 filed a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent at its said iron mine at Sunrise, Wyoming, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 13, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation of the question concerning representation and authorized the Regional Direc- tor to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, ordered the consolidation of the proceeding upon the petition filed by Local 44,2 and the proeeedings upon the charges filed by Local 442 and the S. W. O. C., and that one record of the hearing be made. On June 17, 1938, upon amended charges duly filed on the same day with the Regional Director by Local 442 and the S. W. O. C., the Board, by Aaron W. Warner, Regional Director for the Twenty- second Region, issued its complaint against 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 (5) and Section 2 (6) and (7) of the Act. With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) on February 18, 1938, and on nu- merc s,occasioiis thereafter, refused to bargain collectively with Local 442, which had been designated as the exclusive representative by a majority of its employees in an appropriate unit at Sunrise, Wyoming; (2) at all times since on or about July 1, 1936, at both Pueblo, Colorado, 186 DECISIONS -OF NATIONAL -LABOR RELATIONS j30ARD and Sunrise, Wyoming, continued in existence, perpetuated, and fos- tered a labor organization of its employees, herein called the Plan,' which had been instituted on or about May 1916 by the respondent's predecessor, The Colorado Fuel and Iron Company, herein called the Company, and that the respondent dominated and interfered with the administration of, and contributed financial and other support to the Plan; (3) from on or about July 1, 1936, urged, persuaded, and warned its employees to refrain from joining or participating in, and otherwise discouraged membership in Local 442 and the S. W. O. C.; and (4) by the above acts, and by other acts, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, accompanied by notices of hearing upon the complaint and the petition were duly served upon the respondent, Local 442, the Employees' Representatives' Organization at Pueblo and the Employees' Representatives' Organization at Sunrise; 2 and a copy of the complaint accompanied by a notice of hearing was duly served upon the S. W. O. C. On June 22 the Regional Director granted the respondent an ex- tension of time for the filing of an answer, and on June 28, 1938, the respondent filed an answer to the complaint denying the unfair labor practices alleged therein. On June 25, 1938, the Employees' Representatives' Organization, at Pueblo, by Andrew Diamond, chairman, filed with the Regional Director an application for leave to intervene in Case No. 0-984, the proceeding concerning alleged unfair labor practices by the respondent at Pueblo, Colorado, and an answer denying said allega- tions. No formal order was entered granting the application,3 but the Employees' Representatives' Organization at Pueblo did in fact appear, cross-examine witnesses, introduce evidence, and participate in the hearing as a party to the proceedings in so far as they related to the alleged unfair labor practices at Pueblo. On June 29, 1938, the Regional Director issued an amended notice of hearing postponing the date of the hearing. Pursuant to the ' The complaint alleged, and the record shows, that this labor organization was variously known as "The Employees Representation Plan of the Colorado Fuel and Iron Corpora- tion," "Representation Plan of Employees," "Joint Representation of Employees and Management," "Industrial Representation Plan," "Employees' Representatives' Organiza- tion ," as well as by other names. 2 As we note below, from 1916 until 1021, and again from 1936, there appear to have been separate labor organizations at Pueblo and Sunrise From 1921 until 1936 there was a limited joinder (see footnote 13, infra). As appears below it is unnecessary to decide when and to what extent this joinder jemained nominal, and we shall therefore, for pur- poses of convenience in this Decision, treat these organizations as separate organizations throughout. 3 The Trial Examiner stated in his Intermediate Report that the Regional Director had granted the application for leave to intervene, but the record does not contain any ruling of the Regional Director thereon. THE COLORADO FUEL AND IRON CORPORATION 187 amended notice of hearing, a hearing was held at Pueblo, Colorado, from July 5 through July 12, 1938, and at Sunrise, Wyoming, from July 16 through July 20, 1938,4 before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Employees' Representatives' Organization at Pueblo were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. During the hearing, the respondent moved to sever the proceed- ings relating to the respondent's steel mill at Pueblo, Colorado, from the proceedings relating to the respondent's iron mine at Sunrise, Wyoming. The Trial Examiner denied the motion. At the close of the hearing at Pueblo and again at the close of the entire hearing the Trial Examiner granted motions by counsel for the Board to amend the complaint to conform to the proof in all formal respects. The Trial Examiner reserved ruling on a motion by the Employees' Representatives' Organization at Pueblo to dismiss the complaint in so far as it alleged unfair labor practices at the steel mill in Pueblo, but denied this motion in his Intermediate Report. The Trial Exam- iner also reserved his rulings on motions by the respondent to dis- miss the entire complaint. No express ruling was made upon these motions in the Intermediate Report, but they were implicitly denied by the recommendations of the Trial Examiner contained therein. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On or about October 22, 1938, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served upon all parties, in which he found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint, and accordingly recommended that the respondent (1) cease and desist, from said unfair labor practices, (2) withdraw recognition from and completely disestablish as the representatives of its employees the Employees' Representatives' Organization at Pueblo and at Sun- rise, (3) upon request bargain collectively with Local 442 as the exclusive representative of the respondent's production and main- tenance employees at the Sunrise mine, and (4) take certain other appropriate action to remedy the situation brought about by the unfair labor practices found. 4 The evidence relating to the alleged unfair labor practices at Pueblo was introduced at Pueblo ; and the evidence relating to the alleged unfair labor practices at Sunrise was introduced at Sunrise. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 25, 1938, counsel for the Board, for the respondent, and for the Employees' Representatives' Organization at Pueblo entered into a stipulation containing certain corrections of the transcript of testimony at the hearing,5 and on November 14, 1938, the Board issued an order incorporating the stipulation as part of the record in the proceedings. On or about November 9, 1938, the respondent and the Employees' Representatives' Organization at Pueblo filed exceptions to the rul- ings of the Trial Examiner and to his Intermediate Report, and on or about August 24, 1939, the respondent filed a brief which we have considered. On August 31, 1939, pursuant to notice duly served upon the parties, a hearing was held before the Board for the purpose of oral argu- ment. The respondent and the Employees' Representatives' Organi- zation at Pueblo were represented by counsel and participated in the oral argument. The Board has considered the exceptions of the re- spondent and the Employees' Representatives' Organization at Pueblo and, in so far as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. The Board has also considered the exceptions of the respondent which charged that the respondent was denied a fair hearing because of the conduct of the Trial Examiner. We have examined and re- viewed the record with respect to this claim, and find no basis for any charge of improper or prejudicial conduct. On October 23, 1939, counsel for the Board and for the respondent entered into a stipulation providing that an attached list of employees was a true copy of Board Exhibit S-11 which had been introduced at the hearing but subsequently lost, and that said list of employees could be incorporated into the record in substitution for Board Ex- hibit S-11. In accordance with such stipulation we hereby incor- porate the said list of employees as part of the record in the proceedings, in substitution for Board Exhibit S-11. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent's predecessor, The Colorado Fuel and Iron Com- pany, was organized some time prior to 1913 under the laws of the State of Colorado. On August 1, 1933, the Company defaulted on a bond issue and was placed in receivership. Arthur Roeder, then president of the Company, was appointed receiver by the United 5 The Employees' Representatives' Organization at Pueblo entered into this stipulation only in so far as it related to the portion of the transcript concerning the alleged unfair labor practices at Pueblo. THE COLORADO FUEL AND IRON CORPORATION 189 States District Courts for the Districts of Colorado and Wyoming, and continued the operations of the Company in that capacity until August 1, 1934, when the Company filed a petition for reorganization under Section 77 (b) of the Bankruptcy Act. Roeder was appointed trustee of the estate of the Company, in which capacity he continued the business of the Company. The respondent, The Colorado Fuel and Iron Corporation, was organized on April 16, 1936, and on July 1, 1936, received all the assets and property of the Company pursuant to a court order confirming a plan of reorganization in accordance with Section 77 (b) of the Bankruptcy Act. The officers and di- rectors of the respondent are substantially identical with those of the Company.6 John D. Rockefeller, Jr., who had held a substantial in- terest in the Company, on June 30, 1937, held directly and indirectly 50.10 per cent of the voting power of the respondent. The respondent is engaged in the manufacture of iron and steel products, the quarrying of limestone, the mining of iron ore, and the mining and sale of -coal. It owns an iron and steel mill at Pueblo, Colorado, known as the Minnequa plant, a number of coal mines in the State of Colorado, an iron ore mine at Sunrise, Wyoming, and other iron ore mines in Colorado, New Mexico, California, and Utah. At the time of the hearing, with the exception of the iron ore mine at Sunrise, Wyoming, the respondent's iron ore mines were not in operation. The iron ore mine at Sunrise, Wyoming, is the chief source of iron ore for the Minnequa plant. In 1937, more than 400,000 long tons of iron ore, the entire output of the mine at Sunrise, were shipped by the respondent from Sunrise to the Minnequa plant. During the same year the respondent shipped outside of the State, and to railroads engaged in interstate commerce, more than 400,000 tons of iron and steel products. This constituted more than 50 per cent of the total production of the Minnequa plant for that year. During the year 1937 more than $150,000 worth of supplies, ma- chinery, equipment, and merchandise were brought by the respondent from States other than the State of Wyortling to its mine at Sunrise, Wyoming. During the same year more than $2,000,000 worth of machinery, equipment, and general supplies were brought to the Minnequa plant from States other than the, State of Colorado. In addition, the respondent brought to the Minnequa plant from States 9 Roeder is president of the respondent ; W. A. Maxwell, Jr , former vice president of the Company, is vice president of the respondent ; S. G. Pierson , former vice president and treasurer of the Company is vice president and treasurer of the respondent; D. C. McGrew, secretary , Harry P. Fish , assistant secretary , and H. C. Crout, assistant treasurer of the respondent had served in the same capacity for the Company , J. A. Bullington, general auditor for the respondent had served as assistant controller for the Company; Fred Farrar, director and general counsel of the respondent , had been director and general counsel of the Company ; and J. F Welborn, director of the respondent had been director and chairman of the board , of the Company 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than the State of Colorado more than $5,000,000 worth of raw materials, exclusive of the iron ore from the Sunrise mine. The respondent also owns a subsidiary corporation known as the Colorado and Wyoming Railway Company.' This subsidiary oper- ates a railway which connects the Sunrise, Wyoming, mine with major railroads, carries products to and from the respondent's Minne- qua plant, connecting with various railroads in the vicinity of'Pueblo, Colorado, and also transports coal and other products produced by the respondent in the vicinity of Trinidad, Colorado, connecting with major railroads in that area. Another subsidiary, The Colorado and Wyoming Telegraph Company, maintains a wire service between Denver, Colorado, Pueblo, Colorado, and other places within the State of Colorado. It also maintains a wire service between Guernsey, Wyoming, and Sunrise, Wyoming. This subsidiary frequently trans- mits to these points messages which originated in other States and had been previously transmitted by the standard wire service. A third subsidiary, The Colorado Fuel and Warehouse Company, owns stock, known as warehouse stock, in various States in order to facili- tate the sale of the respondent's products in these States. This sub- sidiary operates in Kansas, Nebraska, Oklahoma, and California. The chief office of the respondent is located in Denver, Colorado. In addition, the respondent maintains other offices in the State of Colorado, and district sales offices and sales representatives in the States of Texas, Utah, Missouri, Nebraska, Oklahoma, Kansas, Mon- tana, Washington, Oregon, California, and Illinois. The respondent also sells products in the States of Arizona, Idaho, and South Dakota. Approximately 3,000 production and maintenance employees are employed by the respondent at the Minnequa plant, of whom about 225 are engaged in a supervisory capacity. Approximately 150 men are employed at the mine at Sunrise, Wyoming. II. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill, and Smelter Workers, Local 442, is a labor organization affiliated with the Committee for Indus- trial Organization.' It admits to membership the production em- ployees of the respondent at the Sunrise, Wyoming, mine.9 ° The stock of this subsidiary as well as of the Colorado and Wyoming Telegraph Com- pany, were among the assets acquired by the respondent from its predecessor, the Company. s Now the Congress of Industrial Organizations. e Steel Workers Organizing Committee which filed the charges with respect to the alleged unfair labor practices at Pueblo is a labor organization affiliated with the Con- gress of Industrial Organizations. See Matter of Moltrup Steel Products Company and Steel Workers Organizing Committee, Lodge No 1802, 19 N L R. B 471; Matter of Mc Wane Cast Iron Pipe Company and Steel Workers Organizing Committee, 19 N. L. R. B. 458; Matter of Florence Pipe Foundry & Machine Co. and Steel Workers Orguntz. ing Committee, 19 N. L. It. B 68. THE COLORADO FUEL AND IRON CORPORATION 191 The Employees' Representatives' Organization at Pueblo, Colorado, is a labor organization of the production employees of the respondent at its Minnequa plant at Pueblo, established under a plan of employee representation, herein called the Plan. The Employees' Representatives' Organization at Sunrise, Wyo- ming, is a labor organization of the respondent's production em- ployees at Sunrise established under the Plan.10 III. THE UNFAIR LABOR PRACTICES A. Pueblo, Colorado 1. Origin of the Plan In 1915, following a severe and violent coal strike in the State of Colorado, a plan of employee representation, herein called the Plan, was instituted at the coal mines and iron mines of the respondent's predecessor, The Colorado Fuel and Iron Company. After a year of operation the Plan was extended by the Company to the Minnequa plant, where it was adopted at an election in which 72 per cent of the employees voted in favor thereof. In the course of a series of lectures delivered in 1937 to employees of the Minnequa plant, under the joint auspices of the respondent and the Employees' Representatives' Organization at Pueblo, the origin and purposes of the Plan were described as follows : The company union, a voluntary union of all the workers in a particular plant, originated from a plan sponsored at the Col- orado Fuel & Iron plant in 1915 by John D. Rockefeller, Jr. The inspiration for the plan was the Ludlow strike of 1913-14, in which it developed that no machinery existed by which dissatis- fied workers could lay their grievance before the management for joint consideration and settlement . . . The company and the strikers settled the dispute and the company thereupon ,in- itiated a plan of joint representation for its employees. i\Ir. Rockefeller said it was his hope that "from this will develop some permanent machinery which will insure to the employees of the Company, through representatives of their own selection, quick and easy access to the officers, with reference to any griev- ances, real or assumed, or with reference to wages or other con- ditions of employment." The plan was adopted in October 1915 [in the, coal • mines] by a six-to-one vote of the employees, and during the period of the war it became the model for many sim- ilar organizations in other plants, dedicated to the principle of 10 See footnote 2, supra, and footnote 13, infra 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining and intelligent cooperation between labor and management." After adoption, the provisions of the Plan, with an appouded Mem- orandum of Agreement between the Company and the employees of the Minnequa plant were printed in a booklet and distributed to all employees at the Minnequa plant." In 1921 a revised Plan covering the employees in the steel works, coal mines, iron mines, and quarries of the Company known as a "consolidated form" was adopted and printed in booklet form together with three Memoranda of Agree- ment between the Company and its employees at its various prop- erties 13 The title on the 1921 booklet describes it as : Joint Representation of Employees and Management and Procedure In Industrial Relations and Memoranda of Agreement Respecting Employment, Working and Living Conditions within The Colorado Fuel and Iron Company "Because of its origin the Plan is frequently referred to in the record as the "Rocke- feller Plan." v The caption on this booklet reads as follows Industrial Representation Plan and Memorandum of Agreement Respecting Employment and Living and Working Conditions Applicable to The Minnequa Steel Works of The Colorado Fuel and Iron Company The booklet recites that its provisions were "unanimously agreed upon " by a "joint committee on the consolidation of the forms of the plan of representation of employees of the Colorado Fuel and Iron Company " This committee included representatives of the management and employee representatives from both the mines and the steel works. The revised form was thereafter "adopted by the annual meetings of employees' and manage- ment's representatives ." The revised Plan provided for meetings comprising all districts of the Company 's operations but the record does not disclose whether any such meetings were ever held. Cf footnote 2, supra THE COLORADO FUEL AND IRON CORPORATION 193 2. The structure and operation of the Plan No further revisions were made in the written provisions of the Plan until 1936.14 The substantive changes made in the Plan in the 1921 revision were minor in character and, for convenience, we shall use the written provisions of the 1921 edition of the Plan for the purpose of our analysis of the Plan as it was constituted until 193615 Under the Plan, the employees in the steel works were divided into, various divisions and subdivisions. Each non-supervisory and non- salaried employee of 3 months' standing was entitled to vote in an annual election for a representative from his own division or sub- division. Representatives were apportioned on the basis of one representative for every 150 wage earners or major fraction thereof, with each division entitled to at least two representatives and each subdivision to one. Pursuant to this apportionment, there were 37 representatives for the steel works. Only employees of 1 year's standing who were 21 years of age or over and citizens of the United Statcs were eligible for election as representatives, and the position of representative was vacated if the representative's employment with the Company ceased, or if he was transferred to a supervisory or salaried position. Representatives were chosen from the division or subdivision in which they worked, to act for the employees in these units "with respect to matters pertaining to their employment, living and working conditions, the adjustment of differences, and other mat- ters of mutual concern and interest." Elections were called by direc- tion of the president of the Company and conducted in accordance with a "procedure . . . agreed upon by the employees' representa- tives and the management." The management provided ballot boxes and ballots, and the elections were held in the plant during working hours under the supervision of an official of the Company. Appeals as- to-the validity of any election were taken to the president of the Company. The chief machinery for the operation of the Plan were four joint committees which met monthly. Each, of these committees had six members chosen by the employee representatives and six representa- tives designated by the management. While the committees were empowered to choose their own chairman and secretary, invariably an official of the Company was chosen as chairman and an employee representative was chosen secretary. The most important of the committees was the Joint Committee on Cooperation, Conciliation and Wages, to which were referred, among 14 These revisions are discussed below. 15 It should be noted that the minutes of the proceedings under the Plan at Pueblo, which were introduced into evidence at the hearing, and upon which our description of the operation of the Plan is based in large measure , date only from 1927. 194 DECISIONS OF NATIONAL LABOR RELATIONS :BOARD other matters, questions concerning the "settlement of disputes" and "terms and conditions of employment." A grievance procedure estab- lished under the Plan provided for appeals to this committee with the proviso that the committee could not act "unless both sides are equally represented." In the event of a tie vote, the joint committee could select an umpire, and if they failed to agree upon an umpire, upon the agreement of the parties, the question could be referred to arbitration.16 The titles of the three other committees are descriptive of their functions. They were "The Joint Committee on Safety and Acci- dents," "The Joint Committee on Sanitation, Health, and Housing," and "The Joint Committee on Recreation and Education." These com- mittees were largely employed for the administration of Company measures and policies. The Joint Committee on Safety was used for the promulgation and administration of the safety rules of the Com- pany. The committee was regularly commissioned to make inspections in the plant and propose suggestions or recommendations for new safety rules or improvements in existing conditions. Decisions of the committee were never final; they were submitted to the Company for its consideration in the form of a recommendation which the Company might accept or reject as it saw fit. A similar role was performed by the Joint Committee on Sanitation, Health, and Housing which assisted in the administration of the company hospital and certain measures pertaining to health and community sanitation. The chief function of the Joint Committee on Recreation and Education was to assist in the administration of the Y. M: C. A., owned and operated `by the Company. This committee conducted membership campaigns for the Y. M. C. A., assisted in the preparations for and supervision of athletic contests, publicized educational classes given at the Y. M. C. A., and assisted in the arrangements for an annual picnic given by the Company to its employees. In addition to these joint committees, the Plan provided for- joint conferences which were held four times a year and were attended, by all the employee representatives and certain officials designated by the president of the Company, with the proviso that the number of man- agement representatives could equal but not_ exceed the number of employee representatives. The joint conference held in December of each year was designated an annual meeting and at this meeting reports were presented by each of the joint committees. The purpose of these conferences was "to discuss freely matters of mutual interest 19 At the meetings of this committee, the management representatives voted as did Quigg,, the chairman of the committee At one joint conference , an employee representative complained that because of this practice questions were rarely referred to the committee since the proceedings would frequently result in a tie vote and "what was the use of referring a question to the Conciliation Committee under these circumstances." I THE COLORADO FUEL AND IRON CORPORATION 195 and concern , embracing a consideration of suggestions to promote increased efficiency and production , to improve living and working conditions, to enforce discipline, avoid friction, and to strengthen friendly and cordial relations between management and employees." In accordance with the provisions of the Plan, the joint conferences were presided over by the president of the Company or some other officer designated by him. A stenographer in the Company's employ usually acted as secretary. Under the category of "matters of mutual interest and concern," the joint conferences discussed a wide variety of topics including such matters as seniority , lay-offs as penalties for offenses, vacations, group insurance, wages, leaves of absence , coal prices, distribution to em- ployees of buttons designating 25 years of service, bonuses for 25 years' service , relief for flood victims, facilities for conducting tours of visitors through the ; steel mill, the distribution of stickers adver- tising the Company and to be displayed in the employees ' automobiles, picnics, resolutions of sympathy on occasions of death or illness, voca- tional classes , parking of autos , and paving of streets . The later joint conferences included as regular features a health talk by the Company doctor, a report on the activities of the Y. M. C. A. by the director of the "Y," talks on safety and first-aid by the Company officials re- sponsible for these activities, and a discussion on business prospects by either Quigg, superintendent of the Minnequa plant , or Maxwell, vice president of the Company. For the most part the discussions of these various topics at the joint conferences were general and did not reach final decisions. The limited scope of many of the discussions was described by Maxwell at a joint conference on August 15, 1930 as follows: ... quite a lot of questions come up through the employees, and their only method of bringing them up is through the Body of Representatives: The questions are then submitted to manage- ment and management agrees or does not agree to accept them. It is management's privilege to decide whether any question shall be agreed to or not agreed to. At a later point, he added : We are always willing to listen to reason, and that is what we have discussions for, but there are certain things that someone has to decide, and some of those things are management's prerogative. Beginning not later than 1927; 7 regular monthly meetings of the employee representatives were held.'8 The representatives also elected 1 See footnote 15, svy» a 13 These meetings we,e not provided for in the written provisions of the Plan 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their own chairman, vice chairman, and secretary. Management rep- resentatives frequently attended the meetings of the employee repre- sentatives to address the representatives and state the management point of view on various questions. A stenographer furnished by the Company took the minutes of these meetings. There were no general meetings of employees or regular employee meetings of any kind.19 Although meetings confined to the employees of one department for the purpose of discussing matters concerning that department were occasionally held, such meetings were sporadic and few, and apparently for the limited purpose of ascertaining the opinion of the employees of the particular department with respect to a specific problem. The total number of such meetings testified to in the record are two meetings of the employees in the open-hearth department to discuss "splitting time," two of the employees in the rail department to discuss rates of pay for "special" nails, and a meeting of the employees of the wiremill department of unspecified purpose. In addition, according to Diamond, chairman of the Em- ployees' Representatives' Organization at Pueblo, it was the practice of the employee representatives to canvass the employees in their re- spective departments on various issues. Aside from this occasional canvassing of departments by employee representatives, the employees' only participation in the Plan was at the annual elections, in which they were given an opportunity to select employee representatives within the restrictions imposed by the Plan. The Plan provided that all expenses of the Plan were to be paid by the Company,20 stating the rationale for the support of the Plan by the Company in the following terms: The promotion of harmony and good will between the Company and its employees and the furtherance of the well-being of em- ployees and their families and the communities in which they reside being essential to the successful operation of the Company's in- dustries in an enlightened and profitable manner, the expenses necessarily incidental to the carrying out of the social and indus- trial betterment policies herein described, and the joint represen- tation and joint conferences herein set forth, including the pay- ment of expenses of employees' representatives when attending 19 Two provisions in the Plan dealt with meetings of employees. One provided that "Meetings of employees in any division or subdivision , or conferences of employee repre- sentatives may be held at such time as will not interfere with operations " The other granted to employees "the right to hold meetings at appropriate places on Company prop- city or elsewhere as they may desire , outside of working hours or on idle days" 20 Shortly after the Company had been placed in receivership , Roeder, who was presi- dent of the Company, as well as the receiver , stated at a special joint conference on August 10 , 1933, that lie considered maintenance of the Plan a "reasonable " and "justified" expense and one that could be continued during the receivership THE COLORADO FUEL AND IRON CORPORATION 197 joint conferences and annual joint meetings, and their reimburse- ment for the working time necessarily lost in so doing, shall be borne by the Company.21 Pursuant to this provision, the Company paid for all the expenses of annual elections, including the printing of ballots, and the paying of tellers for time lost from work in the conduct of the election. The em- ployee representatives were paid for all time lost from work in con- nection with duties under the Plan, including attendance at the monthly meetings of the employee representative body, whether or not a management official was present at the meeting, as well as time lost through attendance at joint committee meetings or any of the joint conferences. In addition, on several occasions prior to 1936, commit- tees of employee representatives were sent on trips to the eastern part of the United States to study wage rates in steel mills: in that part of the country, the Memorandum of Agreement providing that the Company would pay substantially the same wages as were paid by competing steel companies. On these occasions, the Company paid the entire cost of the trip as well as reimbursing the representatives for time lost from work. All meetings under the Plan, including meetings of the employee representatives alone as well as meetings of the joint committees and the joint conferences, were held on the prop- erty of the Company. Lastly, under the Plan the Company's consent was required for any change in the provisions of the Plan. The Plan provided in this respect that : This agreement of joint Representation of Employees and Man- agement may be altered or amended by majority vote of the regu- larly elected representatives of the employees and a majority vote of the representatives of the management appointed for such pur- pose in any joint meeting of all representatives of the employees and management regularly called, upon at least a thirty days' notice.,, Provision was also made in the Plan for the publication of an In- dustrial Bulletin "published in the mutual interest of employees and management." This bulletin was published by the Company and dis- tributed to all employees. It contained the minutes of all meetings 21 The following proviso is added : "But nothing herein shall preclude employees of the Company from making, in lieu of payment by the Company or in addition to it, such payment to their representatives in consideration of services render ed on their behalf as they themselves may voluntarily desire and agree to make " As stated below, sometime in 1934, the employee representatives began to accumulate a working Fund, made up of contributions by employees 22 The Plan contained various other miscellaneous provisions, including a guarantee against discrimination either by the management or by employees "on account of member- ship or non-membership in any society, frateinity, or union," and provisions on seniority and the posting of wage rates 28303 3-41-vol 22-14 198 DECISIONS OF NATIONAL LABOR_ RELATIONS BOARD under the Plan, including the joint conferences, the meetings of thq four joint committees, and the meetings of the employee representa- tives. The last few pages in the booklet containing the provisions of the Plan were devoted to a "Memorandum of Agreement" 23 "respecting employment, living and working conditions between The Colorado Fuel and Iron Company and its employees in the Minnequa Steel Works," ". . . in addition to the rights and privileges guaranteed the employees and the Company, in the Industrial Representation Plan herewith ..." The "Memorandum of Agreement" covered rent of dwellings, prices of domestic coal, fencing of employees' homes, garbage removal, wash houses, hours of labor, semi-monthly payment of wages, and rates of pay. Although the "Memorandum of Agreement" was ubsigned and stated to be between the Company and its employees, it provided that it was "subject to revision upon ninety days notice by either of they parties." In addition, in a "Foreword" to the "Memorandum of Agreement" the following is stated: "it is understood that ... adjust- ments must necessarily be made in the future . . . All such future changes, as in the past, shall be made in accordance with the pro- visions of Joint Representation of Employees and Management of the Colorado Fuel and Iron Company." . The Plan was regarded by the Company as, and was in fact, but an agency of the Company. The preamble of the Plan stated its purpose as follows : For, the purpose of maintaining and fhrtlier developing har- mony and right understanding within the Colorado Fuel and Iron Company, the following method of joint representation and procedure in Industrial Relations has been adopted. The Company's view of the purpose and function of the Plan was expressed at an employee representative meeting in 1928, by Matteson, at the time the President's Industrial Representative '24 who said : The time has gone by where any large industry is going to con- tinue to operate with any degree of harmony without having an industrial organization of some nature. If the management of large industries will not deal with the men or give them an organi- zation, there is going to be some other organization come along 23 The 1921 booklet also contains a "Memorandum of Agreement" "between the Colorado Fuel and Iron Company and its employees in the coal mine and coke oven plant in the State of Colorado" and another "Memorandum of Agreement " "between the Colorado Fuel and Iron Company and its employees in the lion Mines in the State of Wyoming" These "memoranda" are not pertinent to the present discussion. 24 President's Industrial Representative was a position created under the Plan with the duties of conferring "with the employees or their representatives and the management respecting working and living conditions and to report the result of such conferences to the President" of the Company THE COLORADO FUEL AND IRON CORPORATION 199 which the men will take up, so I feel that all industries rightly should have an organization. At the annual joint meeting on December 12, 1929, Quigg, general superintendent of the Minnequa plant, admonished the employee rep- resentatives that the "primary operation or function of this Plan is the steel plant operation." 35 In addition, the Company officials ex- pressly emphasized the complete scope of management control and authority. At a meeting of the Joint Committee on Cooperation, Conciliation, and Wages held on November 19, 1929, Andrew Diamond, chairman of the employee representatives, remonstrated that the Plan was not being observed, reminding Quigg that "that Plan was put in here by the owners of the Company, and your board of directors sub- mitted it to the men, and they accepted it." Quigg replied : "I told you many times that you can have all the agreements you want if they are all right and you keep your `skirts clean' but when you get into a `jam' management was going to do what was the right thing to do." At a joint conference on September 12, 1935, Maxwell, vice presi- dent of the Company, said, "I might point out ... that management could, not be governed, by what any committee,' or this body might decide as a Company policy. It would have to go to the President, or even the Board of Directors." When Diamond argued that in ac- cordance with the provisions of the Plan, it could be amended by a majority vote at a joint conference, Maxwell rejoined: "No, we couldn't do that. We are just employees. I aln an employee; any member on management's -side in this meeting is only: an 'employee: Anything that vitally affects the affairs of the Company or the policy of the Company has to go to the head of the Company, and probably even to the Board of Directors." 26 The Plan was professedly inaugurated by the Company as a "safety valve," in order to insure the efficient operation of the plant by provid- ing some machinery whereby employees might voice their grievances to the management.-' For that, purpose, the Company presented to its employees and advocated acceptance by them of a form of organi- zation which was such as to insure complete domination and control by =c At the bearing, Quigg described the Plan as "just more or less a procedure in industrial relations for the settlement of disputes," 2" The Company officials conceived of the Plan as being so completely a Company instru- ment that occasionally they omitted even the form of the Plan On one occasion, the management without consultation with the employee representatives, selected from among then delegates to act on various matters, prompting the employee representatives to the adop- tion of the following resolution at a meeting of employee representatives held July 27. 1928 "Whenever the Company wishes to have men from the Employees' Representative to represent the employees , their selection should come through the body of repre- sentatives " r The limited role of the employee representatives is illustrated by their request at a joint conference held on September 4, 1930, that they be informed of all future changes in working conditions before the changes were put into effect "not that they have any- thing to say whether it can be done, but merely as a matter of cooperation " 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company, and to render the organization incapable of functioning as a real bargaining agency for the employees. The employees did not pay dues or contribute to the support of the Plan; it was financed com- pletely by the Company and was thus dependent upon the Company for its operation. In selecting employee representatives to represent them in meetings with the Company, the employees were restricted to employees of the Company. These representatives looked to the Com- pany, not to the employees, for compensation for their time spent in connection with their duties as representative. No general meetings of the employees were either provided- for in the Plan or held as a matter of practice. Employees participated in the Plan only in the annual elections; they had no effective or certain voice in the determina- tion of issues or in decisions on policy; no opportunity was provided whereby they might formulate their demands and instruct their repre- sentatives. All meetings were held on Company property. Elections were held in the plant under the supervision of a Company official; the ballots for such elections were printed by the Company; and the elec- tion tellers were paid by the Company for their time lost from work. In addition, the Company printed and distributed to employees the booklets containing the provisions of the Plan, and the Industrial Bulletin recording the proceedings under the Plan. Finally, the re- quirement that amendments to the Plan be made jointly by employee representatives and management representatives, assured that the struc- ture of the Plan would not be altered without the consent of the Com- pany. Clearly, this was not the employees' own organization, but the Company's organization for its employees."' 3. The 1936 changes In 1934 a controversy arose in the Joint Committee on Cooperation, Conciliation, and Wages involving a demand by the employee repre- sentatives for the reinstatement of an employee named Anderson, who had been discharged by the management on the ground that he had negligently permitted a furnace bottom to burn out. A vote in the committee resulted in a tie. The employee representatives on the committee suggested arbitration, but the management refused to agree to this course of action. "We have treated in considerable detail events occuiiing prior to the effective date of the Act. Although such acts did not constitute unfair labor practices, they are never- theless material to an understanding of the existing ielationship between the respondent and the Plan and the Employees' Representatives' Organization established thereunder, and to a determination of the issues raised by the complaint Cf. N L R B v. Pennsylvania Greyhound Lines, Inc, 303 U. S 261 ; Matter of Bethlehem Shipbuilding Corporation, Limited, and Industrial Union of Macrae and Shipbuilding Workers of America, Local No 5, 11 N L. R B. 105; Matter of Humble Oil if Refining Company and Oil Workers International Union, Locals No 3-U and 316, 16 N L R B 112 THE COLORADO FUEL AND IRON CORPORATION 201 As a result of this experience, the employee representatives felt that the requirement of consent by the Company for submission of a ques- tion to arbitration was a defect in the Plan which required revision. The enactment of the National Labor Relations Act in July 1935 led to the consideration of other changes as well. At a meeting of the employee representatives on July 19, 1935, Quigg informed the body that the Act might require a revision in the election procedure provided by the Plan. At another meeting of employee representatives on August 8, 1935, Warren Densmore, the President's Industrial Representative, and Quigg spoke at length upon the effect the Act might have upon the Plan. Densmore told the employees that the only respect in which the operation of the Plan could be considered in violation of the Act was with respect to the election procedure which provided for the participation of manage- ment in the conduct of elections. Quigg suggested that two changes would free the Plan from any possible charge of employer domination within the meaning of the Act. He suggested that there be elim- inated from the Plan, the provision to the effect that elections would be called by the direction of the president of the Company, and that provision be made that elections would be conducted by an elec- tion committee appointed by the employee representatives instead of jointly by the representatives and management. At a joint conference on September 12, 1935, Maxwell and Quigg objected to the appointment of a joint committee to consider these revisions, and suggested that the body of representatives select a com- mittee to prepare the revisions which could then be submitted to management. Accordingly, the committee which had been selected by the employee representatives earlier that day, served as a com- mittee on revisions. On October 22 the committee went to Denver and consulted with Roeder, who at the time was trustee in reorgan- ization proceedings, concerning the proposed revisions. The com- mittee reported back to the body of representatives, which discussed the proposed revisions at several meetings, and on November 22, 1935, approved the "proposed amendments as changed and corrected" and directed the committee to "present these to management, pending final action at the joint conference." On February 25, 1936, the committee wrote to Roeder informing him that they had finished their work on revision, and on March 17 again went to Denver to confer with Roeder on the revisions. Roeder stated that he proposed to, and he thereafter did, consult with In- dustrial Relations Counselors, Inc., an agency of the Rockefeller Foundation in New York, for advice on the revisions. On May 14, 1936, Roeder's request for further meetings with the committee prompted the passage of a resolution by the body of representatives 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorizing the committee "to proceed as they have in the past and after the proposed revisions are finally decided upon by the com- mittee, that they be presented to the body." Thereafter, Roeder submitted to the committee suggested revisions prepared by Industrial Relations Counselors, Inc., for their consideration. As stated above, on July 1, 1936, the respondent received all the assets and property of the Company, including the Minnequa plant. No change was made in the management of the plant. Roeder, presi- dent of the Company became president of the respondent, Maxwell, vice president of the Company, became vice president of the respond- ent, and Quigg retained his post. The respondent merely stepped into the shoes of the Company. The relations between officials of the Company who were now officials of the respondent and the em- ployee representatives continued without any interruption because of the change in corporate ownership; the negotiations on the revisions continued unaffected by the change. The committee on revisions continued to meet with Roeder and Maxwell for negotiations on the proposed revisions, which were completed in final form sometime before, September 10, 1936. The revisions were discussed at a meet- ing of employee representatives held on that date, with Maxwell present during part of the discussion. Further slight changes were made in this meeting, including one suggested by Maxwell, and at a joint conference held that afternoon the Plan as revised was sepa- rately approved by the employee representatives and the representa- tives of management. The revised Plan was printed in a booklet by the respondent for distribution to all employees. This revised Plan covered only the employees at the Minnequa plant of the respondent. The principal revisions adopted at this time were as follows : (1) All annual and special elections of employees' representatives were to be conducted by a committee of five employee representatives elected by the body of representatives. Appeals from elections were to be taken to the election committee instead of as formerly to the president. The 3 months' requirement for eligibility to vote was deleted and all nonsupervisory production employees were permitted to vote. (2) A provision for monthly meetings of the employee represent- atives was added-thus codifying a practice that had been observed for some time although not provided for in the previous edition of the Plan. (3) Chairmen and secretaries of joint conferences were to be se- lected by majority vote. Previously the Plan provided that the joint conference should be presided over by the president or someone desig- nated by him. After this change, management officials were regu- larly elected to preside over joint conferences. THE COLORADO FUEL AND IRON CORPORATION 203 (4) Questions upon which the Joint Committee on Cooperation, Conciliation, and Wages could not agree could "at the request of either party be submitted to arbitration" by a board of three, one chosen by the employee representatives on the Joint Committee on Cooperation, Conciliation, and Wages, one appointed by,the management, and the third selected by mutual agreement of these two. The decision of a board so chosen would be final.29 (5) The following proviso was added to the method of amendment of the Plan : ". . . provided, however, any section of Part I [which deals with election procedure] or any other section relating exclu- sively to the employees or their representatives,30 may be amended by a majority vote of the regularly elected representatives of the employees at a regularly called meeting, upon at least thirty days' notice." In addition, there was added a new provision for termina- tion of the Plan reading as follows : "This Plan may be terminated when and if a majority of all eligible employees have voted in favor of such termination at any annual election." Another change discussed by the employee representatives but not incorporated in the revisions, approved on September 10, was the establishment of an employee representative working fund. A sug- gestion for the establishment of such a fund was first made at an em- ployee representative meeting on May 2, 1934, when Irwin, an em- ployee representative urged that "no organized or unorganized labor group; whether with this management or any other management can function properly without funds." The subject, however, was dropped and not raised again until April 19, 1935, at which time the decision in the Anderson case was stressed as illustrating the need for a fund as a basis for independent action. Irwin again was the spokesman for the fund, arguing : "No organization can function without funds, and no one knows that better than the management that we have no funds." A motion for the establishment of a fund was passed at this ,meeting, and it was decided to request.management to permit a check- off. Pending action upon this request the representatives resolved : That each representative take this subject up with his constitu- ents and collect from each man in his department whatever the man cares to give as a contribution to this fund. The check-off was never approved, but from May through September 1935, a total of $292.56 31 in contributions was collected by employee 29 The record does not show that any dispute was ever submitted to arbitration "Aside from Part I, there does not appear to be any other provision of the Plan "relating exclusively to the employees or their representatives " 31 It appears from the record that prior to the establishment of this fund , the employee representatives had had a small sum of money from a source undisclosed by the record. This money had been used from time to time in payment for flowers sent in case of the death or illness of a representative or a member of his family ,' and -on one occasion, in, payment of dues to the Pueblo Chamber of Commerce 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives during working hours. The fund was placed in the hands of Bullington, general auditor for the respondent. No attempt was made to employ this fund as the means of financing the Plan; instead it was used for the payment of incidental and ex- traordinary expenses, the main expenses of the Plan still being carried by the respondent. For the years 1935 and 1936, a total of approxi- mately $250 was expended from the fund 32 for the following items : (1) dues to the Chamber of Commerce, (2) expense of two trips to Denver to see Roeder, (3) flowers to ailing representatives, (4) typing and stenographic expense, and (5) payment to members of the revision committee for time spent, outside of working hours, in preparing the revisions adopted on September 10.33 On November 13, 1936, a committee to supervise the raising of more money for this fund was appointed. In appealing for funds, this committee had posted notices in the plant stating as the necessity for a fund : Past experience has proved the necessity for such a fund as at times the action of the Body of Representatives has been handi- capped because of insufficient funds. Recently, a good deal of criticism is being made of Employees' Representatives' Plans throughout the country due to the fact that companies finance the activities of the representatives. In raising an adequate fund, it is felt that such criticism would not be directed at the Plan in the plant. However, although a substantial sum 34 was raised, the fund was not used to defray any of the principal expenses of the Plan, and through May 1937, the total expenditures from the fund amounted to $21.91, spent for flowers and stenographic work. Indeed, a trip of a com- mittee of employee representatives from March 25 to April 16, 1937, to study wage rates in eastern steel mills was financed entirely by the respondent.35 4. The 1937 changes The question of the necessity for further revisions in the Plan was raised in an employee representative meeting, held shortly after the 82 Compare this with the testimony of the secretary of the Employees ' Representatives' Organization that in the month prior to the hearing, the employee representatives had expended approximately $305. This included only the time other than the time lost from work, for which they were paid by the respondent. 34 Although, as appears below, the employee representatives began in May 1937 to pay representatives for certain of the time lost from work, the secretary of the Employees' Representatives' Organization at Pueblo testified that there was a balance of about $1,500 on hand in the fall of 1937. es As late as March 12, 1937, the respondent acknowledged an obligation to pay for the services of an attorney retained by the Employees' Representatives ' Organization in connection with the 1936 revisions. THE COLORADO FUEL AND IRON CORPORATION 205 Jones and Laughlin decision by the Supreme Court 36 upholding the constitutionality of the Act as applied to certain manufacturing in- dustries. At this meeting on April 29, 1937, it was decided to ask the management at a joint conference to be held that afternoon "what effect the Wagner Labor Act will have on the Plan at this plant." At the joint conference held that afternoon, Maxwell, in reply to this question said that "in his opinion" the Act did not render employee representative organizations illegal, but that "company support would probably be declared unlawful." He added that the Plan in its then existing form would have to be abandoned or altered in order to con- form with the law. At a meeting of employee representatives on May 10, 1937, a committee to revise the Plan was selected.37 Shortly after its organization, the committee called on Warren Densmore, the Presi- dent's Industrial Representative, and asked his advice on revision of the Plan. Densmore testified that he merely reviewed the provisions of the Act with the committee; that the committee requested him to supply it with a copy of the Act, but that he had mislaid all his copies of the Act, and as a substitute furnished the committee with an analy- sis of the Act prepared by "some business concern." On May 28, 1937, the committee on revisions reported that it "had completed the changes in the Plan," and the changes were presented to the body of representatives. The representatives approved the Plan as revised and instructed the committee to present the revisions to the management and "that the committee be authorized to continue with the revised Plan to final adoption." On June 18, 1937, the committee on revisions reported to the body of representatives that "the officers of the body had met with manage- ment and presented to them the revised by-laws and memorandum of agreement for their approval and signatures; and that as soon as the memorandum of agreement is signed by the committee and manage- ment, copies will be printed in pamphlet form and distributed to every employee ... The revised by-laws and memorandum of agreement were read and explained to the body, and a discussion was entered into." The report of the committee was accepted. On July 3, 1937, the committee on revisions addressed a letter to all employee representatives as follows : The Committee of Employees' Representatives, appointed for purpose of amending the Plan and Memorandum of Agreement, have completed their work. The Memorandum of Agreement 3O1 U. S. 1. 87 The meeting also voted to pay the expenses of the committee from the working fund 206, DECISIONS , OF NATIONAL LABOR RELATIONS BOARD has been signed by the Committee and the Management of the Company. The By-Laws and Memorandum of Agreement for the purposes of collective bargaining have been printed in pamphlets. On Thursday, July 8th a sufficient number of these booklets will be on hand in the Superintendent's office for distribution to the employees in your subdivision. We feel that it is the duty of every representative to see that each man in your department is contacted and given one of these books. The booklets containing the revised Plan were printed by and at the expense of the respondent. Copies of the booklets were made available in the offices of the various superintendents, where employee representatives were able to obtain them for distribution to the em- ployees. Thereafter, the booklets were distributed to new employees through the employment office. The booklet is divided into two parts, the first with a title page reading as follows : Representation of Employees And Procedure in Industrial Relations C. F. & I. Steel Adopted by Employees and Management of The Colorado Fuel and Iron Company At The Steel Works, May 1916 Revised by a committee of employees' representatives May 24, 1937 There then follows the names of the 10 employee representatives on the revision committee. The second part of the booklet has a separate title page with the legend : "Memorandum of Agreement." and the following heading on the succeeding page : Memorandum of Agreement For Collective Bargaining And Respecting Employment, Wages, Living and Working Conditions This agreement dated June 21, 1937, is entered into by the Representatives of the employees of the Minnequa Works of Colorado Fuel and Iron Corporation, and the Colorado Fuel THE COLORADO FUEL AND IRON CORPORATION 207 and Iron Corporation, for the purpose of collective bargaining and other purposes described below On the last page of the booklet appears the signatures of the presi- dent of the respondent and the 10 employee representatives on the revision committee. 38 1 An examination of the booklet reveals that the intent of the' re- visions, aside from the elimination of certain financial support by the respondent,39 was to rearrange the provisions in the former edition of the Plan, so as to delete from the first portion, sometimes termed the "by-laws," 40 all language referring to the joint character of the Plan, thus leaving for the "by-laws" only those provisions pertaining to the internal structure of the employee representative organization; and to add to the "Memorandum of Agreement," which previously had covered only wages, hours, and working conditions, all the pro- visions of the Plan which imply participation by the respondent. This purported separation, however, was not even verbally accom- plished. The "by-laws" read alone were on their face incomplete; the two parts of the booklet have meaning only with relation to each other and must be read together. This conclusion will appear evi- dent as the revisions made in the Plan at this time are discussed. The preamble to the Plan was slightly altered to read as follows (elisions being indicated by brackets and additions by italics) : For the purpose of maintaining and further developing har- mony and right understanding for employees of the Colorado Fuel and Iron Corporation', the following method of [joint] representation and procedure in industrial relations for the pur- poses of collective bargaining has been adopted. Notwithstanding this declaration, as pointed out below, only minor changes were made in the Plan, the structure and framework of the Plan were not altered, and it remained in all respects a "joint rep- resentation" Plan. 81 The cover of the booklet reads as follows.: Representation Plan of Employees and Method For Collective Bargaining, By-Laws, and Procedure in Industrial Relations And Memorandum of Agreement Respecting Employment, Wages, Working and Living Conditions C. F &I. Steel Minnequa District The Colorado Fuel and, Iron Corporation The extent ' to which financial support by the respondent still continues is discussed in fra. See e . g, footnote 38 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The provision for support of the administration of the Plan by the respondent was eliminated and there was substituted therefor the following provision : The expense of the employees' representatives and elections for the purposes of collective bargaining shall be borne by the employees. To insure our independence, it is proposed to make this representation plan of employees self-supporting, by levy- ing assessments, the amount to be fixed by the employees' repre- sentatives, not to exceed twenty-five (25) cents per month. Although there was a subsequent collection for the working fund, up to the date of the hearing no assessment had been levied as pro- vided for in this provision 41 The provision concerning the furnishing of the ballot boxes and ballots by the management was stricken, but no change was made in the time, manner, or method of elections. Nor were any changes made in the provisions governing eligibility to vote and eligibility to serve as representative 42 The provision for monthly meetings of representatives remained unchanged. With only slight modifications, the provisions for quarterly conferences, and the annual meeting were continued as before. The provision for the selection of employee representatives to serve on the Committee on Cooperation, Conciliation, and Wages, the Committee on Safety and Accidents, the Committee on Sanita- tion, Health, and Housing, and the Committee on Recreation and Education, which appears in the portion of the booklet termed the "by-laws," was changed only to delete the word "joint" before the names of the committees. The duties of these committees were not, however, described in the "by-laws," but were set forth in the "Memo- randum of Agreement," and in substantially the form in which they appeared in the 1936 edition of the Plan.43 While no express men- tion was made either in the "by-laws" or the "Memorandum of Agree- ment" of employer representation on these committees, such repre- sentation was implicit. Indeed, the provision in the "Memorandum of Agreement" on "Procedure for Adjustment of Differences" was identical in wording with a provision so entitled appearing in the previous edition of the Plan, except for the omission of the word "Joint." The provision in the 1937 edition read in part as follows : When the Committee on Cooperation, Conciliation, and Wages is called upon to act with reference to any differences, except by a The collection of funds 4s discussed infra. 42Including the provision for vacation of the office of representative upon the termina- tion of employment with the respondent, or transfer to a supervisory or salaried position. 43 The only change was in the deletion from the duties and functions of the Com- mittee on Sanitation , Health, and Housing, consideration of "houses, rents, gardens, fencing." THE COLORADO FUEL AND IRON CORPORATION 209 consent of all present, the committee shall not proceed with any important part o l its duties unless both sides are equally repre- sented.44 Where agreeable, equal representation may be effected by withdrawal of one or more members from the side of the com- mittee having the majority. - It is apparent that in referring to "both sides," the provision referred to employee representatives and employer representatives. The subse- quent minutes of the meetings under the Plan show that this was the case and that, in fact, joint representation continued in all committees and the conferences in exactly the same manner as before. Although, as revised, the purported constitution or "by-laws" of the Employees' Representatives' Organization provided for the selection of members of committees, not only the duties of these committees, but also their procedure were set forth in an agreement with the respondent. While this is perhaps the most striking instance of the interdependence of the "by-laws" and the "Memorandum of Agree- ment," other provisions also furnish convincing evidence that the division between the two parts of the booklet is a purely artificial one, and that the revisions as a whole were not intended to effect any sub- stantive change in the structure of the Plan. The two provisions of the Plan with respect to meetings of em- ployees were separated, one placed in the "by-laws," the other in the "Memorandum of Agreement." The provision in the "by-laws" states in part that : Meetings of employees in any division or subdivision, or con- ferences of employees' representatives may be held at such times as will not interfere with operations. The provision in the "Memorandum of Agreement" declares that : Employees shall have the right to hold meetings at appropriate places on Company' property or elsewhere, as they may desire, outside of working hours, or on idle days. Both provisions are of the same character; obviously neither has any place in a document relating to the internal structure of a labor organization. The provision for amendment was revised so as to provide that the "by-laws" could be amended by a majority vote of the employee repre- sentatives alone.45 The provision provided, in addition, that "the fol- lowing memorandum of agreement" could also be amended by a ma- jority vote of the employee representatives alone. This latter provision 44 Italics supplied '5'The "by-laws" contain the identical provision for termination of the Plan as existed in the previous edition. 210 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD was of doubtful efficacy, since the employee representatives could hardly unilaterally amend an agreement with the respondent. More- over, the "Memorandum of Agreement" itself states that it is subject to revision upon ninety (90) days' notice by either party. The pro- vision, however, furnishes another example of the fictitious division between the "by-laws" and the "Memorandum of Agreement." 46 The artificiality of the separation between the two portions of the booklet is further evidenced by the inclusion within the portion of the booklet devoted to the "by-laws," under the heading "Pro- vision for Amendment," of a provision which appeared as a fore- word to the "Memorandum of Agreement" in the preceding edition of the Plan, reading as follows : In reprinting the memorandum of agreement adopted at the Steel Works in May, 1916, it is understood that different ad- justments have been made in order to meet changing conditions, and that other adjustments must necessarily be made in the future as existing conditions may require. Such a provision, of course, could have no proper place in a document relating entirely to the internal structure of a labor organization. As we have stated above the booklet represents that the so-called "by-laws" were revised by a committee of employee representatives on May 24, 1937. We have also noted that the "Memorandum of Agreement" between the respondent and the employee representa- tives is dated June 21, 1937. The record, however, clearly reveals that both parts of the booklet were prepared and adopted together, and that the respondent participated in the preparation of and approved the section in the booklet known as the "by-laws" as well as participating in the preparation of and executing the "Memo- randum of Agreement." On May 28 the committee on revisions presented to the body of representatives a "revised Plan" which the body instructed the committee to present to the management and "to continue with the revised Plan to final adoption." While the respondent, in its brief, states that this action amounted to an adoption of the Plan, it is clear that the instructions given by the representatives. to the com- 4e with two further changes, the "Memorandum of Agreement" contained all the other provisions of the 1936 edition The changes were as follows : (1) In the previous edition of the Plan , a provision to the effect that an employee was not to be discharged for an offense without notification that a repetition of the offense would be cause for dismissal , stated that copies of the notification should be given to the manager of the department and the employment office. As adopted in 1937, this provision provided that a copy of the notification should be given to the representative or representatives of the employee concerned. (2) There was added a provision that July 4 , Labor Day , and Christmas should be considered holidays "during which days there shall be no regular production work." THE COLORADO FUEL AND IRON CORPORATION 211 mittee were to "continue . . . to final adoption," and that the repre- sentatives thereby did not consider their actions as the final adop- tion of anything. We conclude that in accordance with these instructions of May 28 the committee presented the "revised Plan" to,the management. That this was done is borne out by the minutes of the meeting of June 18, at which the committee on revisions reported back that they had met with the management. Whereas the minutes of the meeting of May 28 refer to a "revised Plan," the minutes of June 18 for the first time make reference to "revised bylaws and memo- randum of agreement" and state that they had been presented to the management "for their approval and signatures." Moreover, that these "revised bylaws and memorandum of agreement" were differ- ent from the "revised Plan" approved at the meeting of May 28, is evident from the fact that it was found necessary to read and explain the "revised bylaws and memorandum of agreement." It is apparent from these minutes that the "revised Plan" pre- sented to the meeting of May 28 was not the same as the provisions which appear in the booklet as allegedly prepared by a committee of employee representatives on May 24. It is also apparent that both the "bylaws" and the "memorandum of agreement" were pre- pared at a meeting or meetings held between May 28 and June 18, between the committee on revisions and the management, and that the management participated in the revision of the "bylaws" as well as in the preparation of the "Memorandum of Agreement" which follows. The internal evidence contained in the provisions them- selves, which we have considered above, support this conclusion. The "bylaws" cannot be regarded as a distinct and separate docu- ment, since as shown above, they make reference to and can be understood only in connection with the "Memorandum of Agree- ment" which follows. Indeed, paragraph 14 of the "bylaws" refers specifically to "the following memorandum of agreement," and ob- viously must have been prepared together with the "Memorandum of Agreement." We find that the "by-laws" and the "Memorandum of Agreement"' were prepared and adopted together, and that the respondent par- ticipated in the revisions of the Plan which resulted in the publi- cation on or about July 8, 1937, of the booklet containing the "by- laws" and "Memorandum of Agreement." 5. Operation of the Plan after the 1937 revisions The subsequent minutes of the proceedings under the Plan reveal that, in practice, the 1937 revisions resulted in few changes in the operation of the Plan. Of these, the most significant was the cessa- 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of payment by the respondent to the employee" representatives for all time lost from work in attendance at employee representa- tive meetings." In addition, as of January 1, 1938, the minutes of the employee representative meetings were not published in the In- dustrial Bulletin, and the costs of an election conducted in 1938 were defrayed from the working fund. Otherwise, the Plan under- went no change. As was the case prior to the 1937 revisions, there were still no provisions for membership meetings or general meetings of em- ployees, and in practice no such meetings were held. The organi- zation continued to operate as a joint representation plan. The functions, composition, and procedure of the conferences and the committees were not modified. While the word "joint" was dropped from the titles of the committees, the joint representation remained unaltered, and the proceedings under the Plan continued to be re- ferred to in the Industrial Bulletin as "joint representation." Al- though, since the 1936 revisions, the written language of the Plan no longer provided that the president of the respondent or someone chosen by him should preside over the joint conferences, manage- ment officials were regularly chosen by the conferences to act as chairmen and secretaries of such conferences. The joint committees continued to be presided over by management officials just as prior to the revisions; the records of their proceedings showed no change in the manner or substances of their meetings. The 1937 revisions marked no break in the continuity of the opera- tion of the Plan. The employee representatives, chosen prior to the revisions, continued as employee representatives under the Plan as revised. The Industrial Bulletin containing the proceedings of the meetings under the Plan, and still published by the respondent for distribution to all employees, was numbered consecutively without any break in sequence after June 1937. The joint conference of April 29, at which the question of revisions was first raised, was called the "Second Joint Conference," the next conference on September 8, the first after the revisions, was called the "Third Conference." The employee representative meeting on June 18 at which the "revised by-laws and memorandum of agreement" were approved was the "sixth regular meeting of the year"; the following meeting, on July 23, 1937, was described as the "seventh regular meeting of the year"; and at this latter meeting, the "minutes of the previous meeting held June 18th were read and approved." Similarly, the Joint Committee on Cooperation, Conciliation, and Wages held its "second regular meeting of the year" on May 7; the Committee on Cooperation, Con- +7 See footnote 49, infi a THE COLORADO FUEL AND IRON CORPORATION 213 ciliation, and Wages held its "third regular meeting of the year" on June 4, at which the "minutes of the last meeting, held May 7, 1937 . . . were approved as read," and its "fourth regular meeting" on July 9, at which the minutes of the last meeting "held June 4, 1937... were approved as read." In addition, in accordance with the custom of numbering the meetings of this committee consecutively since at least 1927, the meeting of May 7 was numbered the 272nd, that of June 4, the 273rd, of July 9, the 274th, etc. Similarly, the minutes of the meetings of the three other committees, held immedi- ately subsequent to the revisions, all recite that the minutes of the previous meeting were approved as read 48 Finally, in the annual meeting held on December 16, 1937, the committees gave their reports for the entire year, making no reference to revisions in the Plan during the course of that year. The respondent continued to pay representatives for their time lost from work in attendance at the quarterly joint conferences, at meetings of the joint committees,49 and, in addition, for time lost in attendance at meetings of employee representatives, regularly held on the mornings of the days for which quarterly conferences, which were held in the afternoon, were scheduled. This morning meeting took the place of a regular monthly meeting of representatives and, subsequent to January 1, 1938, the minutes of its, proceedings were not reported in the Industrial Bulletin. The employee representatives were also paid for their time lost in any conferences with management, in addi- tion to the joint committee meetings and joint conferences. The respondent in other respects continued to participate in and support the administration of the Plan. Diggory, who was Quigg's secretary, and not covered by the Plan, continued to act as stenog- rapher at the employee representative meetings for some time after the 1937 revisions.'° Bullington, general auditor of the respondent, retained custody of the representatives' working fund until May 1, 1938. Meetings of the employee representatives continued to be held 48 In the June meetings of the Committee on Sanitation , Health, and Housing, and of the Committee on Safety and Accidents, held June 1 and June 2, respectively, the com- mittees are both entitled "joint" committees ; whereas in the minutes of the June meetings of the other two committees held June 4 and 7, respectively, the word "joint" is omitted from the title of the committees The record offers no light as to the choice of June 3 as the crucial day for the omission of the word "joint " We note that the Industrial Bulle- tin containing the minutes of these meetings covers the period through August and was probably published sometime in September The choice of June 3 may thus have been an afterthought. c "In the event the employee representative did not lose working time by attendance at one of these meetings, he was not paid by the respondent, but was paid for his attendance from the working fund . The fund was also used to pay the expenses of an election held in 1938 (see infra), and to pay employee representatives for their attendance at monthly meetings of the body of representatives other than the meetings held on the dates of quarterly conferences , ° At a meeting of the employee representatives on August 13, 1937, it was voted to pay Diggory $15 a month for his services Prior thereto he had served without pay. 283033-41-vol 22-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the respondent's property. In addition, the Employees' Representa- tives' Organization used the respondent's bulletin boards, for which, according to Diamond, it paid the respondent $1 a month. In the fall of 1937, approximately $3,500 was collected for the working fund.51 As was the case in 1935, the collection was made in the plant during working hours. Employees either contributed in cash or authorized deductions from their pay checks. One repre- sentative, Anton Kochevar,52 finding himself too busy to participate in the collection, requested his foreman, Eberling, to assign someone else to the task. The foreman obligingly did so. Irwin, vice chairman of the Employees' Representatives' Organization, anxious to know who had contributed to the fund, asked Eberling to obtain for Irwin from the representatives in Eberling's division, a list of the employees who had contributed. Again, Eberling obliged. 6. The 1938 election and contract We have seen above that the 1937 revisions were not submitted for ratification to the employees but after approval by the respondent, were simply adopted by the employee representatives elected in De- cember 1936. The first election, after the revisions, was held in Feb- ruary 1938. At that time the question of ratification of the Plan was submitted to the employees by a ballot reading : Do you ratify the Representation Plan and the Memorandum of Agreement, and Designate the Elected Representatives as Your Collective Bargaining Agency? Contained in the same ballot was a proposal for a 2-year term for representatives, as well as spaces for stating one's choice for repre- sentative from the various divisions and subdivisions.53 The election was conducted by an election committee chosen by the employee representatives. This committee secured from the respond- ent a list of all employees, and from this prepared lists of eligible employees for each division and subdivision, which were turned over to tellers appointed by the committee. No safeguards to guarantee secrecy of ballot were provided. The tellers, with boxes for the de- posit of ballots, went through the mill during working hours in groups of two, and presented a ballot to each employee on the list of eligibles. The employee voted in the presence of the tellers and dropped his 51 The Employees' Representatives ' Organization operated on this sum , together with $1,500 previously collected , up until the date of the hearing in July 1938. It was testified at the hearing that another collection was imminent. 19 Kochevar mistakenly placed this collection in the spring of 1937 but states that it was after the, revisions . Other evidence clearly establishes that the collection was made in the fall 9 The respondent printed the ballots, but was paid by the employee representatives for this service. 1 THE COLORADO FUEL AND IRON CORPORATION 215 ballot in the box.54 As each employee voted, his name would be checked off on the list. The ballot boxes were then taken into a room in the Y. M. C. A. where the election committee had offices, were opened by the election committee, and the ballots then counted in their presence.55 The entire procedure covered a period of about 2 months- Over 98 per cent of the employees voted with the tabulated results showing an overwhelming ratification' of the Plan by a vote of 2,426 to 198. More than two-thirds of the former representatives were re-, turned to office, and the question on the 2-year term for representatives, was carried by a vote of 1,891 to 704. At the conclusion of the election in March the newly elected em- ployee representatives informed the respondent of the results of the election, and on April 4, 1938, wrote Quigg stating the results of the election and requesting "Recognition of this newly organized em ployees' organization as the sole bargaining agency of the employees of this Plant" and "ratification" of an enclosed agreement "as the basis of collective bargaining at this Plant." 50 Quigg replied in a letter of April 7 granting "to the Minnequa Employees' Organization of Representatives the sole bargaining agency for the employees of the Minnequa Plant." The contract was executed on April 15, and was signed for the Pueblo Organization by Andrew J. Diamond, Chair- man; James Irwin, Vice Chairman; R. W. Speakman, Secre- tary-Treasurer; and M. G. Filler, Recording Secretary ; and for the respondent by L. F. Quigg. This contract, which is the latest document covering the relations be- tween the respondent and the Employees' Representatives' Organiza- tion at Pueblo, is patterned after the "Memorandum of Agreement" of 1937 discussed above, but contains to an even greater extent than the 1937 "Memorandum of Agreement" provisions which outline the internal 'structure of the Employees' Representatives' Organization. The contract is prefaced by a -preamble closely resembling the pre- amble preceding the "by-laws" adopted in 1937. The preamble prefac- ing the contract reads as follows : For the purpose of maintaining and further developing har- mony and proper industrial and economic relationships between the employees and The Colorado Fuel and Iron Corporation,, Minnequa Division, the following representation of employees, memorandum of agreement respecting employment, wages, work- ing and living conditions, and procedure for the purposes of 54 In instances where an employee was unable to read or write, the teller would mark such employee's ballot in accordance with ' the instructions of the employee. r'Provision was also made for voting by employees who were not at work in the mill. w The letter was signed "Employees ' Representatives ' Organization by Andrew J Dia- mond, Chairman , James Irwin, Vice-Chairman , R. W. Speakman , Finan. Secy " This was the first time the employee representatives had used this name. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining is being submitted for your approval and signature. When Signed by the Employees' Representatives' Organization and proper representatives of The Colorado Fuel and Iron Corporation, it becomes the basis for the sole collective bargaining agency between the Corporation and the employees of the Minnequa Plant. [Italics supplied.] The contract then copies and incorporates Section 1 of the "by-laws" of 1937, which set forth the divisions and subdivisions upon the basis of which representatives are to be chosen ; provides for the biennial election of representatives; "to act on their [the employees'] behalf with respect to matters pertaining to wages, employment, liv- ing and working conditions, the adjustment of differences, and other matters of mutual concern and interest"; 57 and with unimportant changes incorporated the provisions of the 1937 "Memorandum of Agreement." 5s Conclusions The respondent concedes that its relations with the Plan and the Employees' Representatives' Organization prior to the 1937 revisions were in violation of the Act. It contends, however, that these revisions removed the illegal aspects of the Plan, that the Employees' Repre- sentatives' Organization was newly established as a result thereof, and that from that date the respondent's activities with regard to the Plan and the Employees' Representatives' Organization have been lawful within the meaning of the Act. We find these contentions to be without merit. 64 Section 5 of the "by-laws" providing for the selection of one representative for every 150 wage earners is not included in this 1938 contract The provision for biennial elec. tion was a slight modification of the first part of Section 2 of the bylaws which provided for an annual election This modification was presumably pursuant to the election in February and March 1938 which had approved the change to a biennial election i8 (1) The "Memorandum of Agreement" had provided that it was "subject to revision upon ninety (90) days notice by either party" , the 1938 contract provided that it was subject to revision upon 30 days' notice by either party, and that in the event of a failure to reach an agreement on revisions within 60 days after the beginning of negotia- tions, the contract would be considered cancelled. (2) The contract eliminated reference to "both sides" of the Committee on Coopera- tion, Conciliation , and wages , which it described as a "Committee consisting of six mem- bers of the Representatives' Organization, who are empowered to meet and deal with the Management of the Minnequa plant for the purpose of settling disputes " While this language might indicate that this committee was composed of only employee representa- tives, no change in the actual composition of the committee was made (3) The provision granting to employees "the right to hold meetings at appropriate places on Company property or elsewhere," was supplemented by the ambiguous statement that "Permission to use the Company bulletin boards is also requested " (4) The quarterly conferences, which under the "Memorandum of Agreement" were to be called by the chairman of the employee representatives , were, under the contract "to be called at a time mutually agreeable to the Employees' Representatives ' Organization and Management." (5) In the contract , there was excised from the functions of the committee on Recrea- tion and Education consideration of matters pertaining to "churches and Sunday schools." THE COLORADO FUEL AND IRON CORPORATION 217 The Plan was installed by the Company at the Minnequa plant in 1916, professedly to insure the efficient operation of the plant. As we have stated above, it was an agency of the Company, devised to assist the Company in the administration of its personnel problems, and amounted to a personnel department of the Company. On July 1, 1936, the respondent received all the assets and property of the Company, and became the owner of the Minnequa plant. The relations between the respondent and the Plan were the same as those which had existed between the Company and the Plan. As we have seen above, the Plan continued to function without interruption, unaffected by the change in ownership ; the respondent merely assumed the position of the Company with relation to the Plan; and the Plan continued to function as the instrumentality of the respondent, as it had previously functioned as an instrumentality of the Company.50 As we have noted above, in September 1936 certain revisions were made in the Plan providing that elections under the Plan would be conducted by an election committee of employee representatives, and that the election procedure could be modified by a majority vote of the employee representatives alone.e° Even aside from the method and manner in which these revisions were made-the respondent's par- ticipation therein and consent thereto-as well as other factors which are discussed below in connection with the 1937 revisions, it is clear that these 1936 revisions did not establish an independent labor organ- ization. The Employees' Representatives' Organization was still de- pendent upon the respondent for financial support; amendments in the structure of the organization or in the method of operation of the Plan still required the respondent's approval. That the 1936 revisions did not establish either the Plan or the Employees' Representatives' Organization upon an independent basis, was recognized by both the respondent and the employee representatives. This is evident from their joint decision, following the Supreme Court cases upholding the constitutionality of the Act, that further revisions in the Plan must be made, if the Plan was to operate in conformity with law. The 1937 revisions did not establish an independent labor organi- zation. ' The employees as a whole were given no notice that the respondent, after the Jones d Laughlin decision, intended to abide by the Act; they were not informed that they were free to change the form of representation which had been initiated by the Company and there- after had been maintained by the Company and the respondent for over 20 years, and that they could, if they wished, reject this form N Be Cf. Matter of Corning Glass Works, Macbeth-Evans Division and Federation of Flat Glass Workers of Antertea, 15 N L R. B 598. °° See footnote 30, supra. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of representation and choose another. On the contrary, without ref- erence to the employees, the revisions' were prepared by the employee representatives, many of whom had served in this capacity for a long period of time under a Plan and in an organization dominated and controlled by the respondent and its predecessor, the Company 6i As in the past, the employee representatives consulted not with the employees but with the respondent; and the respondent, as we have found above, participated and assisted in the preparation of the revi- sions. Manifestly, the employee representatives cannot be said to have held any mandate or to have derived any authority from the employees for their actions by virtue of the 1936 elections. The elec- tion of the employee representatives pursuant to a Plan dominated and controlled by the respondent cannot be considered a designation of these men as the freely chosen representatives of the employees for the purpose of devising a method and procedure for bargaining or of establishing a labor organization for the employees. As we have pointed out above, the Plan remained unaltered in any significant aspect. For example, prior to 1937 the set up of the Plait made the respondent's approval a requisite to any amendment in the structure of the organization or in the method of operation of the Plan. By the 1937 revisions, many of the provisions relating to the structure and method of operation of the Plan were transferred to the "Memorandum of Agreement." Since the respondent was a party to the "Memorandum of Agreement," the shift of these provisions thereto left the respondent's approval still a requisite to amendments in the structure of the organization or in the method of operation of the Plan .1312 Clearly the imprint upon the Plan and the Employees' Representatives' Organization of more than 20 years' history as an employer-dominated labor organization was not removed in 1937 by such legerdemain. Not only was the Plan the same organization after the 1937 revi- sions as it formerly had been, but no one regarded the revisions as establishing a new organization. The "by-laws" of the revised Plan describe, it as a revision of the Plan adopted in 1916. Diamond, speak- 61 Cf International Association of Machinists v N L. R B , 211 U S 72 , Matter of Reveo e Copper and Brass Incorporated and United Electrical, Radio of Machine Woo kers of America Local #303, 16 N L R B 437, Matter of Ifanias City Power of Light Company and International Brotherhood of Electrical Workers Local Union B-$12, 13 N L R. B 1414 as Cf. Matter of Vail-Ballow Press, Inc. and Binghamton Printing Piessinen 's and Assist- ant's Union, No 57, 1 P P and A U of Binghamton , N 1', 15 N L It B .^, 78 The statement in the text is subject to the qualification that the 1936 revisions had provided that the election procedure could be amended by vote of the employee representatives alone However, even this modicum of independence was largely withdrawn by the 1938 contract which contained , in.addition to the provisions in the 1937 "Memorandum of Agreement" provisions establishing the electoral divisions from which representatives were to be chosen, and providing for the biennial election of representatives THE COLORADO FUEL AND IRON CORPORATION 219 ing from the point of view of the employee representatives, testified that there has been only one Plan with revisions. As we have noted above, there was a complete continuity in the membership of the com- mittees; the conferences, the employee representative and the commit- tee meetings were numbered consecutively in the Bulletin published by the respondent; the meetings, held after the revisions, began their business by reading and approving the minutes of meetings held be- fore the adoption of the revisions. Thus both the respondent and the employee representatives considered the Plan as revised to be merely a continuation of the old -Plan. The employees in general could hardly have thought otherwise. For the reasons stated above, we find that the 1937 revisions neither effected nor were deemed to have effected a new organization, and that the Plan because of its structure and prior history, continued unchanged, as much the creature of the respondent after the revisions as before .63 That the Plan continued to be the respondent's creature is fur- ther strikingly revealed by the completeness with which the respond- ent by the 1937 "Memorandum of Agreement" and again by the 1938 contract, insured its continued control and domination of the Plan and the Employees' Representatives' Organization. As we have noted above, as part of the 1937 revisions, certain of the provisions of the Plan relating to its structure and method of operation were transferred to the "Memorandum of Agreement" to which the re- spondent was a party. Subsequently, there were inserted in the 1938 contract not only the provisions in the 1937 "Memorandum of Agree- ment" but also provisions establishing the electoral divisions from which representatives were to be chosen, and providing for the bien- nial election of representatives.64 As is developed more fully below,65 the insertion of such provisions outlining the internal structure of the Employees' Representatives' Organization in a contract with the respondent, insures the respondent's control and domination of that organization, and deprives the employees of the complete freedom of action guaranteed to them by the Act. The respondent, moreover, clearly and unmistakably evidenced to the employees its continued favor and support of the employee rep- resentatives and the Plan as revised. It recognized and entered into an agreement with these employee representatives, including in such agreement the working and living conditions of its employees which es Matter of Servel, Inc and United Electrical Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295; Matter of Bethlehem Shipbuilding Corporation, Limited, and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 5, 11 N. L. R. B. 105; Matter of Bethlehem Steel Corporation, et al and Steel Workers' Organiz- ing Committee, 14 N. L. R. B 539 84 See footnote 62, supra 0 See Section III B 3, infra 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had formerly been contained in an agreement directly between the respondent and its employees ; it continued to deal with these employee representatives in the identical fashion in which it had previously dealt with them. 66 After the revisions had been completed, the respondent printed the revised "bylaws," together with the "Memo- randum of Agreement," in a booklet for circulation to the employees. The booklets were deposited in the offices of the superintendents for distribution by the employee representatives to all employees. There- after new employees were supplied with copies of the booklet by the employment office. 67 The respondent continued to publish the Industrial Bulletin containing the proceedings under the Plan 66 for distribution to all employees ; meetings under the Plan, including the meetings of the employee representatives, continued to be held on the respondent's property; the latest election under the Plan was held in the plant during working hours; and the respondent permitted the collection of funds for the operation of the Plan to be made in the plant during working hours, and in at least one department, a foreman assisted in the collection. The foregoing were not the only instances of support contributed by the respondent to the Plan and the Employees' Representatives' Organization after the 1937 revisions. As found above, employee representatives are still paid for time lost at meetings of employee representatives alone when these meetings occur on the morning of a quarterly conference. The respondent contends that such pay- ments are justified because the morning meeting is in preparation for the quarterly conference in the afternoon which is attended by representatives of the management. This purported justification plainly does not apply in so far as the discussions at these meetings were not confined to matters considered at the afternoon confer- ences-and the record shows they were not so limited.- Moreover, it 66 That the respondent recognized, or at least , recognizes today that this procedure was improper , is shown by the testimony of Farrar , general counsel of the respondent. Farrar testified that in a meeting with the committee of employee representatives estab- lished for the revision of the Plan , he told the committee that unless there was "some legal ratification" by the employees of any revised Plan proposed by the employee repre- sentatives "it might be questionable whether or not they had the right to adopt this new plan without reference to the employees , and whether or not they were the collective bargaining representatives of the employees ." If this was in fact the respondent's viewpoint at the time of the revisions , it was ignored in practice. 87 The general superintendent of the respondent testified at the hearing that these acts were done at the request, and even the insistence , of the officers of the Employees' Representatives' Organization There is no warrant, however, in any provision of the Act, for the argument that support , financial or otherwise , to a labor organization is any the less support because it is given at the request of the labor organization OsAlthough , as noted above, beginning with January 1, 1938 , the Industrial Bulletin no longer carried the minutes of the meetings of the employee representatives wCf. Matter of The Duffy Silk Company and Silk Throwsters Union Local 81, Textile Workers Union of America, 19 N. L R B 37 While minutes were introduced only as to the meetings of employee representatives held on the mornings of quarterly con- ferences on September 8 and December 16, 1937, there is no indication that subsequent meetings were any different in character. THE COLORADO FUEL AND IRON CORPORATION 221 is fallacious to argue that a meeting in preparation for a bargaining conference can be considered as part of the bargaining conference itself, and that the proviso in the Act permitting payment for time lost in conferring with the management should cover the preliminary meeting as well. A large part of the meetings of every labor organ- ization is necessarily devoted to questions preliminary to bargain- ing with an employer, and under the reasoning advanced by the re- spondent, an employer would be justified in supporting the bulk of the activities of a labor organization of its employees on the theory that such activities were preliminary to conferences with the man- agement. 70 The respondent argues that in 1938 "the revised plan was specifically approved by the overwhelming vote of the employees expressing their preference in a secret election." The contention is beside the point. The Act does not contemplate the sanctioning of an employer-domi- nated organization on the ground that it meets with the approval of employees .71 Moreover, the contention is not supported by the record. Ratification of the Plan in this election, in view of the events prior thereto, which we have set forth above, would, in no event, have af- forded any assurance that the Plan was freely chosen by the respond- ent's employees. The respondent had already recognized the employee representatives under the revised Plan, had dealt with them continu- ously for some 7 months subsequent to the revisions and, indeed, had entered into an agreement with the employee representatives containing the working and living conditions of the employees, which had previ- ously been contained in a contract directly between the respondent and the employees. In these and in the other ways summarized above, the respondent had clearly indicated to its employees its support and favor of the Plan as revised, and of the employee representatives with whom it had dealt. Under these circumstances, it is clear that a vote even upon the simple issue of acceptance or rejection of the Plan could not be regarded as proof of the wishes of the employees. More- over, the issue was not thus presented; the form of the ballot as sub- mitted to the employees coupled acceptance of the Plan with the continuance of the working and living conditions embodied in the "Memorandum of Agreement" so that rejection of the Plan and the refusal to designate the representatives as bargaining agent entailed 70 We entertain considerable doubt as to whether the joint conferences and the com- mittee meetings , as we have described them above , particularly those of the Committee on Recreation and Education , constitute such bargaining conferences as would come within the proviso of Section 8 ( 2) permitting employees to confer with management during working hours without loss of time or pay we find it unnecessary , however, to pass upon the question , in the instant case. 71 See N L B. B. v Newport News Shipbualdang & D7p Dock Co , 308 U S 241 ; N. L. R B v. The Felt. C66o'ration, ; N. L R. 'B v Brown Paper Mill Company, Inc., 108 F ( 2d) 867 (C C. A 5). 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rejection of the "Memorandum of Agreement" and the working and living conditions which it embodied .72 Under these circumstances, the employees were left in no doubt that what was sought of them was not an expression of free choice but a confirmation of the wishes of their employer, which had been so clearly indicated to them.7S We find that the respondent , by the above-described course of con- duct, has dominated and interfered with the administration of and has contributed financial and other support to the Plan and the Em- ployees' Representatives' Organization at Pueblo and has thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Sunrise, Wyoming 1. The chronology of events As we have stated above, the Plan was organized at Sunrise, Wyoming, in 1915, and in 1921 the Sunrise mine was included in the consolidated form of the Plan adopted at that time. While the record does not disclose the manner in or extent to which the Plan operated or functioned at Sunrise prior to 1937,14 apparently quarterly confer- ences and other meetings were held pursuant to the Plan. At a quar- terly conference at Sunrise held in the first half of 1937, George H. Rupp, manager of mine operations for the respondent, informed the employee representatives at Sunrise, that there was some question as to whether the Plan was legal in its then existing form,75 but the subject was not pursued further. There were three employee representatives under the Plan at Sunrise, two for the employees of the mine and one for the employees of the Colorado and Wyoming Railway Company. About the middle of August 1937 one of the two representatives of the mine employees left the employment of the respondent. Stanley Palmer, finding himself the only employee representative for the mine, approached Homer Massey, head clerk of the Sunrise mine, and suggested that Massey prepare notices for an election. Massey prepared the notices which were then posted by Nancarrow, the timekeeper. Pursuant to these notices an election meeting was held in the Y. M. C. A. at Sunrise on September 1, 1937. The meeting was attended by only 7 employees 72 Although there is no evidence that the respondent had any part in the framing of the form of the ballot , since the ballots were printed by the respondent and the election was conducted in the plant , we have no doubt that the respondent had knowledge of the form of the ballot. 73 Cf. Matter of Quality Art Novelty Co., Inc. and United Paper Workers, L. I. U. No. 292, 20 N. L R B 817; Matter of Pilot Radio Corporation and United Electrical and Radio Workers of America, 14 N. L. R. B. 1084 74 One of the employees testified that under the Plan, "We . used to have big parades and dances and have a good time." 75 Rupp also informed the employee representatives at Sunrise that the employee representatives at Pueblo were looking into the question of legality THE COLORADO FUEL AND IRON CORPORATION 223 of approximately 200 eligible, but nevertheless proceeded to elect Joe Francescoto as a representative. In November 1937 the mine shut down operations, and remained shut until February 14, 1938. In January 1938 a group of the respondent's employees, including Roy Strong, Charles Hart, and Rufus Oliver, began to campaign for International Union of Mine, Mill, and Smelter Workers. Late in January 1938 Palmer spoke to Buck De Fond, the employee representative for the employees of the Colorado and Wyoming Rail- way Company, about the Plan and told De Fond that he, Palmer, "would kinda like to get this thing off my shoulders. There don't seem to be anything left of it." Palmer and De Fond then spoke to Massey Who, with the consent of Harry A. Wright, superintendent of the Sunrise mine, again had notices of an election posted. Approxi- mately 25 men attended an election meeting held on January 31, 1938. At this meeting Roy Strong and Charles Hart were elected representa- tives, although neither was present and De Fond was reelected repre- sentative for the employees of the Colorado and Wyoming Railway Company. De Fond started a discussion about dues and proposed that there be adopted a method for the collection of 25 cents a month from each employee, stating that there was a similar system in opera- tion at Pueblo.76 This proposal was rejected by the meeting. On February 6, 1938, 43 employees met in a secret meeting at Torrington, Wyoming, about 40 miles from Sunrise.77 At this meet- ing, Local 442 was formed and temporary officers elected. Tilford Denver was elected president, Charles Hart, vice president, John Krionderis, secretary-treasurer, Louie Clauz, recording secretary, and Roy Strong, Harry Runser, and Luciano Balzan, trustees. All the employees present either signed or authorized the listing of their names to a petition designating Local 442 as their bargaining agent, and the petition was thereafter circulated by the officers of Local 442 among the other employees. Despite this attempt at secrecy, the management soon learned of the organizing activity, and immediately took steps to discourage its continuance. Victor Bierleffi, the mine foreman'78 called at the house of Krionderis on the evening of February 7 and again on the 7s As we have seen above , no such system was ever put into operation at Pueblo, although the 1937 revision at Pueblo provided that assessments "not to exceed twenty- five (25) cents per month " could be levied by the employee representatiN es 77 Louie Clauz, the recording secretary of Local 442, testified that the meeting was held at Torrington because the men feared that the management would oppose the organi- zation of Local 442 and "would put fear in the men " The precise basis in piior events for this fear does not appear in the record , although it does appear that a previous attempt to organize a union had been halted by the coercive acts of Wiight, and subsequent events demonstrated that the fear was in fact justified 'SBieilef was next in authority to Wright, the superintendent of the mine . Directly under Bierlefli in line of authority was Bill Perry. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD morning of the next day . Krionderis was out or asleep on these occasions but later in the day on the 8th, went to Bierleffi 's house. Bierleffi told Krionderis that he had learned that Krionderis was secretary -treasurer of Local 442 and asked him who the other union leaders were. Krionderis refused to divulge any information, and Bierleffi then said that if he found out who the leaders were, he would "send them down the road." He told Krionderis that he, Bierleffi, had once belonged to a union which had "created a lot of trouble" and added that the respondent would never recognize a union. Bierleffi also visited Denver on about February 7, and asked him about Local 442. When Denver stated that he had been elected president of Local 442, Bierleffi told him "he was a damn fool for joining up with the C. I. 0." A day or two later , during a conver- sation with Wright, Denver, in response to a question by Wright with regard to Local 442, said the men would "push it on through." Den- ver added that the men "just got disgusted with this company plan" because the management attitude was "To hell with the damn plan." Wright said he "was afraid" the respondent might not recognize Local 442, and might close down the mine because of the attempt at organization, pointing out to Denver that the respondent could obtain iron ore as easily from New Mexico or Utah as from Sunrise. On February 9 Bierleffi called at the house of Luciano Balzan, but Balzan was asleep. Later in the day Balzan went to Bierleffi's house. Bierleffi asked Ba]zan if he knew anything about Local 442 and Balzan replied that he did not. Bierleffi said "he was glad to hear that" and added that he knew who belonged to Local 442, concluding with, "you know this kind of stuff has been tried before and there is no use trying it because we would just as well move out." On February 10, Bierleffi drove up to Hart's house and asked Hart what he knew about Local 442. Hart replied that he knew nothing and Bierleffi said, "the management is all upset about it, and I want you to come clean." Bierleffi assured Hart that he could get Hart "back in good standing" with the respondent . Bierleffi drove away to visit another employee , Hohnholt, but soon returned and said, "Well, Charlie I'm through with you." Bierleffi added, "I am going to get to the bottom of this if I have to work day and night." On February 13, the day before • the mine reopened , Bill Perry, a foreman, accosted Hart and said to him, "I don't know what business you have got kicking. You have always had the best contracts 79 and good treatment." Perry added , "Well you won't get no more 79 Many of the men at Sunrise were given contracts to work at a particular area in the mine, and were paid on the basis of the number of feet mined . This is a normal method of payment in mining operations and is considered preferable to working for hourly wages THE COLORADO FUEL AND IRON CORPORATION 225 contracts as long as you belong to the C. I. O. . . . The Company can shut down the mine and get ore from other places . You want to understand they can always stop these house rents and make you pay cash for them the day the mine closes down." Perry told Hart that the respondent would never recognize Local 442 and concluded by inquiring what Hart would do if the mine shut down. On February 14 the mine resumed operations, but only on a par- tial basis. The efforts to discourage union activities continued. On about February 15 Perry told Dale Morgan, an employee , that he had some contracts to let, but "couldn't let them out until he found out for sure about the union. " On February 16 De Fond approached Oliver, Hart, and Strong , and told them that if "you fellows go by the Company plan" the respondent would "turn loose the contracts and hire some more men." De Fond added that he had just spoken to Wright and Wright was anxious to know the men's decision on this question . Wright did not deny that he had consulted with De Fond on this matter and had instructed him to ascertain the sentiment of the men. That Wright had done so is borne out by Perry's statement about this time that he, Perry, could not let out contracts "until he found out for sure about the union." The second meeting of Local 442 was held on February 17 at Bettyloin Flats, about 10 miles from Sunrise, with about 100 men present. Thomas Murray was present as a representative of the international office of International Union of Mine, Mill, and Smelter Workers . The officers were installed and a bargaining committee consisting of Strong, Hart, and Palmer was elected . A proposed contract was discussed and the meeting voted to present the contract to the respondent . By February 18, 87 employees in an appropriate unit of 138 had signed the petition which had been circulated by Local 442. On that day Murray, Strong, Hart, and Palmer called on Wright, Murray acting as spokesman for the delegation . Murray told Wright that Local 442 represented approximately 90 per cent of the employees at Sunrise and wished to bargain with the respond- ent. He suggested that if Wright entertained any doubt on the ques- tion of majority , an election could be held , but Wright replied that "that was all right." Murray then presented Wright with a draft of a proposed contract . Wright said he had no authority to bargain with the committee but would forward the contract to his "su- periors," and call the committee in about 10 days or 2 weeks to let them know the respondent's reply. On February 19, George Rupp, manager of mine operations for the respondent, came to Sunrise from Pueblo . Wright turned the contract over , to him, and Rupp on his return to Pueblo delivered it to Maxwell , vice president of the respondent. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On about February 19 De Fond, together with four employees at the mine, Chester Morgan, Bert Jesse, Cecil James, and Steve Whitney, initiated steps for the revival of the Plan at Sunrise. They began to circulate a petition authorizing the respondent to deduct 25 cents a month from the pay envelope of each employee signing the petition, and turn such sums over to the employee representatives. In circu- lating the petition, De Fond and the others represented that accept- ance of the Plan would insure continued operation of the mine. On February 20 Willard Duncan was told by his strawboss, Jim Kapus, that he could leave work in order to sign this petition. Duncan was away from work for 45 minutes while talking to De Fond and was paid for that period. On about February 21 Bierleffi told Jim Zori to "go up and sign that paper Cecil James has." When Zori refused, Bierleffi said, "I'll see you a month from now when we'll both be looking for a job." That night Bierleffi, this time in the company of James, again asked Zori to sign the petition. On February 20 Perry went co the home of Strong who, as we have stated above, was elected a representative at the January meeting in his absence, and had subsequently been elected a trustee and a member of the bargaining committee of Local 442. Perry told Strong he had come to find out about the Plan. ' Strong replied that there was no Plan and that the majority of the men belonged to Local 442, to which Perry rejoined that Strong "had better wait" to "see how many have dropped out." Perry told Strong that if he "was going to be stubborn," it would put then "all out of work," stating that the respondent had "never recognized the union here" and that he, Perry, "didn't think they ever would." About a half hour later Bierleffi visited Strong and inquired of him what he was "going to do about it, the union." When Strong replied that he was "a hundred per cent union," Bierleffi said, "It will never work. You fellows stick to the union, unless you get a closed shop, there will be a union man working with a non-uion man, and it will turn out to be shooting matches and fights." Bierleffi added that the respondent "would shut down the mine and get their ore from Mexico"; and that, moreover, the respondent would cut off the em- ployees' credit, and would compel everyone to take a physical examina- tion, thus causing the dismissal of many old employees. On February 21 Rupp met with De Fond, Morgan, and Whitney, and it was arranged between them that Rupp would take with him on his return to Pueblo a delegation of employees from Sunrise, for the purpose of studying the Plan as it operated at Pueblo.80 Of the three, 80 Rupp testified that according to De Fond . Morgan , and Whitney . the proposed trip to Pueblo had as one of its purposes a visit to the "C. I O ." at Pueblo and Denver. None of these men, however, had ever exhibited any interest In the "C I. O " and were, indeed, open advocates of the Plan as opposed to Local 442 Rupp probably confused this conversation with a subsequent one, in which Palmer suggested a visit to the office of the THE COLORADO FUEL AND IRON CORPORATION 227 De Fond, Morgan, and Whitney, only De Fond was a representative but, as stated above, all three had been active in circulating during working hours and with the assistance of supervisory employees, the petition authorizing a deduction from the men's pay for the use of the Plan. On the same day Local 442 held a meeting which was attended by between 90 to 100 employees. At this meeting, the main topics dis- cussed were the threats that the mine would,shut down and "whether we should ride along with the company." A vote on this latter issue registered practically unanimous opposition to the "company plan." On the next day Perry approached Krionderis and told him, "I'll bet your C. I. O. guys will have this mine shut down within thirty days." Later that day Perry asked another employee, Fred Reed, if he be- longed to the C. I. O. When Reed replied in the affirmative, Perry said, "Don't you know if you guys keep going around with the C. I. O. they are going to shut the mine down?" That evening a delegation from Local 442 called on Wright to protest against the activities of the mine supervisors who were "trying to put fear in the men" and against the circulation of the "petition for the company plan" during working hours. Wright told the delegation that he knew nothing about such activities, but that, if they were in fact occurring, he would have them stopped. On February 23 notices that a meeting of the employees would be held that evening in the Y. M. C. A., which was owned by the respond- ent, were posted on the respondent's bulletin boards in the dry house, the company store, and the Y. M. C. A. That evening, Hart, Palmer, Strong, and Clauz called on Wright and complained that the activities of the mine supervisors directed against Local 442 were continuing. They also protested against the posting of the notices referred to above. Wright promised to punish the mine supervisors if they did not cease this campaign against Local 442, but said he could do nothing about the meeting. Later that evening a meeting of employees was held at the Y. M. C. A., with about 140 attending. De Fond opened the meeting and called for nominations for chairman. James immediately nomi- nated Morgan, the nomination was seconded by Jesse, and Morgan was elected. Morgan assumed the chair and addressed the meeting. He said that it would be useless for the Sunrise employees to attempt to "organize a union" because "we are only a small group of men" and unless the steel workers at Pueblo were also organized , the union at "C. I. 0." This conclusion is corroborated by Rupp 's statement at another point in his testimony , that the first time he discussed a visit to the "C. I. 0." was just before the delegation left for Pueblo We find upon the basis of all the testimony and the circum- stances of the trip to Pueblo, that no mention of the "C . I. 0." was made in this first conversation with De Fond , Morgan , and Whitney 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunrise "will get licked." Morgan then introduced Whitney, who, as we have pointed, out above, had, together with De Fond and Morgan,, met with Rupp on February 21, and arranged for a delegation to visit Pueblo. Whitney argued that "labor trouble" at Sunrise might cause the respondent to get its ore elsewhere, and suggested that the respond,, ent could get ore from mines in New Mexico or Utah. Whitney said he had figures from Rupp as to the amount of ore the respondent would take from Sunrise, but asserted that the respondent might get its ore elsewhere unless the employees at Sunrise "went ahead with this plan." The proposal was then made that several men be chosen to go to Pueblo to study the Plan there and look into business conditions. Morgan and Palmer were chosen. De Fond said he would go with them, since he was going to Pueblo "anyhow." De Fond then suggested that each person at the meeting be assessed 25 cents to finance the trip. Stren- uous objection to this proposal was voiced and the meeting broke up in disorder. As pointed out above, 2 days before this meeting, De Fond and others had met with Rupp, and arranged with him to take a delegation to Pueblo. It is apparent that the meeting of February 23 was called pursuant to this arrangement, in order to select the delegates who would make the trip to Pueblo. In this connection, it should be noted that Clauz testified that in the course of a conversation between him- self, De Fond, and others on February 22, De Fond had said that the proponents of the Plan had intended to call a meeting for that night, and had postponed it at Rupp's suggestion to "Give the men a little time to think it over." Rupp did not deny that he made this statement to De Fond, and in view of the circumstances preceding the calling of the meeting, and the further circumstance, as found below, that De Fond and Morgan had an appointment with Wright and Rupp immediately following the meeting, and apparently for the purpose of informing them of the progress of the meeting, we find that the state- ment was made by Rupp, and that he was aware in advance that the meeting was to be held for the purpose of selecting men to go to Pueblo. After the meeting De Fond, Morgan, and possibly others,81 went to Wright's house, where they had been invited for dinner. They saw Rupp there and told him that Morgan and Palmer had been chosen to go to Pueblo. De Fond added that he would go also, paying his own way. Later Palmer joined the group and told Rupp that "he did not care to go without consulting his union." Rupp told Palmer that his expenses would be paid and that Hart could go along as well. While Palmer was consulting Hart, De Fond joined them and told them that 81 The record is not clear as to whether others went with De Fond and Morgan at this time. I THE COLORADO FUEL AND IRON CORPORATION 22,9 Rupp was waiting for an answer . Hart and Palmer, still reluctant to go to Pueblo, then went back to Wright's house where they saw Rupp, who said : "Well, we know you men have all been good men here and we don't hold this against you , or care if you have a union, but we don't like to have a red-eyed organization from the outside come in and stir up these men ... I hate to see a bunch of men led by a bunch of wild outsiders. You take the Republic Steel, when they had their strikes . Who were the losers? The men got killed, not the organ- izers . They paid for making trouble. We will not shut this mine down here unless there are labor troubles . We can get ore else- where. We can get it in Utah or New Mexico. We hold interests there." Rupp then added that although the freight costs from New Mexico were somewhat higher than from Sunrise, the difference in the cost of labor "would about make up for it." Rupp concluded with : "We would like to have you boys come down and see how the plan is working out down there at Pueblo." Rupp neither admitted nor denied the truth of this testimony. He testified , however, that he had, on more than one occasion , indicated to the men that "labor troubles" might cause a shut-down, and testified as follows , on cross-examination : Q. Do you remember that you told them that labor difficulties could cause a shut-down here ; labor troubles? A. Yes. Q. What kind of labor troubles? Can you specify what kind of labor troubles or difficulties , or did you just say "labor troubles"? A. I just said "labor troubles." They had presented us, if you recall, a day before I got here a contract that had a lot of very objectionable features from my viewpoint . . . they had presented us with a contract that would occasion a great deal of controversy. I didn't feel that the company would agree to them , and that if negotiations failed, we might have labor troubles. Q. Now, did you indicate to them that labor troubles might lead the company to shut down the mine? A. No, I did indicate very decidedly to them that, as I stated before, it was just a matter of ordinary business prudence to get your ore from somewhere else; that if there was any threat of strike or negotiations failing up here, that we certainly would be ready to produce all the ore that we needed from other places, because we had plenty sources of supply. Q. If there were such a threat of strike or such a break-down in negotiations or labor trouble in general , did you indicate that the' company would then , as a matter of ordinary business pre- caution , start getting ore from New Mexico or Utah? 233033-41-vol 22-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Yes. Q. And, at the same time, I presume shut down production here until the problem was settled? A. No. The men would keep it shut down. Q. Then would you start getting your ore from New Mexico and Utah, according to what you mentioned to them, after this place had been closed by strike? It that what you mean? That is, you would wait until then? A. No, indeed. We can't wait that long, because it takes a few weeks, or longer than that in some cases, to rehabilitate a property that has been shut down, or repair the timber. We may have some repair work on the railroad tracks that go in there. Q. So that you would have to act in advance of the strike? A. Yes. Q. So that if you start getting in the ore that you were getting from New Mexico and Utah, you wouldn't be able to continue taking ore from here, too, would you? A. It would be impossible to take as much ore as you are taking now. You would have to be ready to produce ore from other sources of supply, which means that you would have to have a small operation at each place, and every time that you mine some- where else, that we mine somewhere else, would be less tonnage from Sunrise. Q. So that you would have to at least cut down on the oper- ation at Sunrise before any strike actually occurred? A. Yes. That would be ordinary business sense. We can't permit 50 or 75 men up here to tie up the steel plants, with five or six thousand men working there. Q. Was that indicated in your conversation with them? That is, that general thought? A. Probably so, in a general way. The following day Wright and Rupp told Palmer that if all three members of Local 442's bargaining committee, Palmer, Hart, and Strong, went to Pueblo, the respondent would pay their expenses. These three and Morgan and De Fond were given $20 for expense money, and were assured that they would be paid for their time lost from work. In addition Hart, who was taking his car with him, was to be paid 3 cents a mile. Before they left on February 24 the bargain- ing committee of Local 442 told Rupp that they also intended to visit the C. I. 0. office in Pueblo. Rupp said that that was a "good idea," and told them where the office was located .82 82 This, we find, was the first occasion when Rupp was told of a projected visit to the C. I. O. office. (Cf. footnote 80, supra.) we note that by this time all arrangements for the trip had already been made. THE COLORADO FUEL AND IRON CORPORATION 231 De Fond and Morgan left in the same car with Rupp. Strong, Palmer, and Hart left in Hart's car. The five men arrived in Pueblo on the evening of February 24 and stayed at the Y. M. C. A. owned by the respondent. The next morning they met the manager of the Y. M. C. A., who asked them if they had paid for their lodging. When they replied that they had, the manager refunded their money, inform- ing them that they weren't "supposed to pay for it," and then took them through the "Y" showing them the swimming pool, the gym- nasium, and other features. In the meantime De Fond had gone to the office of Quigg, the general superintendent of the steel plant, where he met Andrew Diamond, chairman of the Employees' Representatives' Organization of Pueblo 88 According to Diamond, De Fond told Diamond that he had come to Pueblo with four other employees from Sunrise "to look over the plant and get what information they could, and they wanted some rates"; Diamond then told De Fond that an election was being conducted and invited De Fond to watch their election procedure. De Fond sum- moned Hart, Strong, Palmer, and Morgan, and all five went to a room in the "Y" in which ballots were being counted. Diamond and two other officials of the Employees' Representatives' Organization at Pueblo, Irwin and Filler, explained the working of the Plan at Pueblo. The delegates from Sunrise lunched at the "Y" with Diamond, Irwin, and Filler, at Diamond's expense. After lunch Diamond se- cured a pass from Quigg, and took the Sunrise employees through the steel mill. This was followed by a visit to a "beer joint" where the men had two rounds of drinks, which were paid for by Diamond, Filler, and Morgan. Still accompanied by Diamond and Filler, the men then went to the respondent's main office at Pueblo, where either Diamond or Filler introduced them to Warren Densmore, the Presi- dent's Industrial Representative. After a short conversation Dens- more "mentioned Mr. Maxwell wanted to see us [the Sunrise employees] in Rupp's office." Maxwell, as we have stated, was vice president of the respondent. De Fond led the way to Rupp's office, saying : "I know the way there. I have been there before." The men were with Maxwell and Rupp "for a short while," and made an appointment with Maxwell for 9 o'clock the next morning. Densmore testified that that morning he had gone to the office of Kirk, another official of the respondent, where he had met De Fond, who was "reminiscing with Mr. Kirk," and that later in the day, De Fond, in the presence of the other men from Sunrise, had requested Densmore to arrange appointments with himself and Maxwell. s9 Diamond testified that he had gone to Quigg's office on "representative business." De Fond did not testify and the record contains no explanation for his presence in Quigg's office at this time. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Neither De Fond nor Kirk testified. Palmer and Hart testified that they knew nothing of any such arrangement or request, and had not known in advance that they were going to either Densmore's or Rupp's office. After dinner Irwin proposed that the group from Sunrise be taken on a tour of some of the "high spots in Pueblo." According to Irwin. earlier in the day Morgan had expressed a desire to see "some of the places in Pueblo." They first stopped at two bars, where they had drinks which were paid for by Diamond and Irwin,$' then went to the "Silver Moon" cafe. After they had been there for about an hour, Maxwell and Quigg, accompanied by a friend of Maxwell's, came in and joined the group. , Thereafter, the drinks were paid for by Maxwell and Quigg. Hart testified that the conversation soon turned to a discussion of the Plan with Maxwell and Diamond leading the discussion, and that during the course of this conversation, Maxwell said, "I am not trying to sell you this plan because you could hang ine for that, you can probably hang me for that." According to Strong, Maxwell said, "You can hang me before the Labor Board for this, but I am doing it for your own good. You boys go back and try to figure the right way out." Quigg, in the meantime, was conversing with Palmer, and in reply to a remark by Palmer that "the Plan seems to work here in Pueblo," said, "You bet it does. It goes good." Palmer then re- marked that "it hasn't worked for us in Sunrise" and Quigg said, "you fellows know if you keep that C. I. 0. going up there you are going to throw us all out of a job." Maxwell testified that he was improperly quoted by Hart and Strong, that he had in fact said, "I could be hung if I discussed anything about any plan or any organization," and did not enter into any discussions concerning the Plan. However, in view of the origin and purpose of the trip to Pueblo, the events at Pueblo preceding this conversation, Maxwell's remarks on the succeeding day, which are quoted below, and the statements attributed to Quigg which are undenied, we find that the incident occurred as testified to by Hart and Strong. The delegation from Sunrise saw Maxwell in his office the next morning. Maxwell spoke about business conditions and showed them a prepared statement on the amount of iron ore taken from Sunrise, reminding them that in case of "labor troubles" the respond- ent could get ore from New Mexico. He expressed his regrets that the Plan had "died down" at Sunrise, admitting that he was to be blamed for that result. He promised them, however, that "in the future we would be taken care of better and any grievance we had 14 There is testimony that on this occasion some of the expenses of the party were paid for by a Mr. Massey, a friend of Diamond and Irwin THE COLORADO FUEL AND IRON CORPORATION 233 we could get action on." Palmer asked Maxwell if he had received the agreement submitted by Local 442. Maxwell replied that he had, and added : "I, for myself could never sign a contract of that kind," and further, "I think I can -speak for Mr. Roeder." Roeder was president of the respondent. According to Palmer, Maxwell concluded by telling the men as they were leaving, "Well, you boys go back there and work out a plan of your own. Get some repre- sentatives you like. Don't get the thing too bulky and make a bulky organization out of it that you can't handle. Get all you can handle and we will be up to see you later." He then repeated the remark he had made the evening before, about being hung for what he had said, and dismissed the group, asking Rupp to take care of them for dinner. Maxwell denied, in only one particular, that this had been the conversation. He insisted that he had not told the men from Sun- rise to go back and "work out a plan," but had told them to go back and "form their own organization." He did not deny, however, any other part of the conversation. In view of the context of the entire conversation, and particularly since Maxwell knew that the men had already organized Local 442 and sought to bargain through it, it is clear that even if Maxwell had used the word "organization" rather than the word "plan," he manifestly knew that the men could only have understood him as advocating the formation of a representation plan patterned after the Plan at Pueblo. For the respondent had financed the trip in order that the group might be impressed by the functioning of the Plan at Pueblo, and Maxwell had expressed regrets at the failure of the Plan at Sunrise, and had given assurance of the cooperation of the respondent in the operation of the Plan in the future. Finally, Maxwell's summary rejection of the contract sub- mitted by Local 442, coupled with his reminder that in case of "labor troubles" the respondent could get its ore from New Mexico, was patently intended to convey to the men that the respondent desired that some organization other than Local 442 be formed. We find that Maxwell intended his statements to refer to the formation of a representation plan patterned after the Plan at Pueblo, and the record shows that the delegation so understood him. The men then went to dinner with Rupp. , After dinner, they again met Maxwell and Quigg, who were accompanied this time by Dr. Ireland, a physician. Before the gathering broke up, Rupp assured the men, "Well, you boys needn't be afraid of your jobs for your union activity because if the company had discriminated against men before, they would have canned Victor Bierleffi years ago. He talked Union continually." On Sunday, February 27, the men from Sunrise were again enter- tained at the expense of Diamond and Irwin. All except De Fond 234 DECISIONS Or NATIONAL LABOR RELATIONS BOARD left for Sunrise on Monday, February 28, and reported back to worli on Wednesday, March 2. During their stay in Pueblo they had paid nothing for their lodging at the Y. M. C. A. On their return Lo- Sunrise, they were paid for all the time they had lost from work while away. On their return Morgan posted a notice of a meeting, which was held in the Y. M. C. A. on the evening of March 2. About 140- employees atttended. Morgan opened the meeting and acted as chair- man. He reported on the trip to Pueblo, telling "how the plan was working down there" and suggesting that the men at Sunrise ought also "work under the company plan." Palmer, Strong, Hart, and Whitney also spoke, Hart speaking against the Plan. The meeting then chose a committee to conduct elections under the Plan. In addi- tion, whereas formerly there had been two representatives for t,- he-mine and one for the employees of the Colorado and Wyoming Rail- way Company, the meeting decided to divide the mine into four divisions, each to elect its own representative, thus increasing to five the total number of representatives at Sunrise. On March 4 Local 442 held a meeting which was attended by about 90 employees. At this meeting Denver spoke in favor of the Plan,. saying, "I believe we ought to go along with this plan until Pueblo organizes. After they organize, it will be a cinch here." A vote on, a motion to "string along" with the Plan resulted in its overwhelming- defeat. Palmer then spoke and counseled caution. He said they ought to "string along with this representation plan" because they were not "strong enough ... to, make the C. I. O. stick," and re- minded them that they might be voting "ourselves out of a job." Others recalled the threats to shut down the mine, and still others- mentioned the possibility that credit might be denied them at the store. The meeting then reversed itself and decided to accept the Plan for the present and attempt to elect members of Local 442 as representatives. It was agreed, however, that this was merely a tactical move, and that the men would not relinquish their member- ship in Local 442,85 which would be kept intact as an organization, and retained, in the words of Denver, as a "hole card." At the same time the meeting decided to file charges of unfair labor practices with the Board. These charges, alleging violation of Section 8 (1),. (2), and (5) of the Act, were filed on March 5. Nominations and elections for representatives were held on March 7 and 14, resulting in the election of Palmer, Louis Vannelli, Gig Vannelli, Simon Katzman, and De Fond. All except De Fond, who was elected as representative for the men employed by the Colorado 81 As of the date of the hearing, a majority of the employees at Sunrise were still, members of Local 442. See infra. THE COLORADO FUEL AND IRON CORPORATION 235 and Wyoming Railway Company, were "C. I. 0. men." 8' Bert Jesse and Steve Whitney, ardent advocates of the Plan, were defeated. The newly elected representatives held an organization meeting in the Y. M. C. A. on March 16. Louis Vannelli was elected chairman, and Palmer, secretary. There were present at the meeting in addi- tion to the representatives "men picked by each division to help revise the plan," and after the election of officers, the group turned their attention to the "business of revising the Company Plan." Palmer suggested that they could use copies of the booklet which had been printed at Pueblo, and De Fond then left the meeting, went to Wright's office, and returned with several copies of the 1937 booklet containing the "by-laws" and "Memorandum of Agreement" at Pueblo. The booklet was used as the basis for discussion . The main con- cern of the meeting was the consideration of the working conditions to be provided in the Plan. The men made short shrift of the first portion of the booklet containing the "by-laws." . According to the minutes of the meeting, "It was moved and carried to adopt the election rules of the Plan for Pueblo Steel Works.87 It was moved to change paragraph 15 [of the `by-laws'] to read as follows : This Plan may be terminated when and if a majority of all eligible employees have voted in favor of such termination at any time." There was introduced into evidence a document without a title but identified by Palmer as "one of -the copies that I prepared, as you call it, drafting of the plan." The document is referred to in the respondent's brief as containing the "provisions of the Plan" at Sun- rise, and apparently was drawn up by Palmer, pursuant to the motion of the meeting of March 16 "to adopt the election rules of the Plan for Pueblo Steel Works." With the exception of the first provision setting out the subdivisions at Sunrise, and allotting one representa- tive to each such unit, and the last paragraph permitting a vote on termination of the Plan at any time, a revision approved at the March 16 meeting, the document is an almost exact copy of the first part of the 1937 edition of the Plan at Pueblo.88 86 All the representatives except De Fond were identified by Hart as "C. I. 0 men" De Fond was excluded from this category , even though he was formally a member of Local 442, because of his obvious allegiance to the Plan rather than to Local 442. 8i As we have noted above the electoral divisions at Sunrise bad been revised at the March 2 meeting to provide for five representatives 81 So literal was the copying that the document includes many provisions obviously inap- plicable to the set-up at Sunrise. For example , in addition to the first provision already mentioned , this document contains a provision apportioning representatives on the basis of 1 to every 150 wage earners , although there are barely 150 employees at Sunrise There are only five representatives in all at Sunrise, yet the document provides for the election of six representatives to each of the four committees , as at Pueblo In addition, the document makes reference to the "Memorandum of Agreement " adopted at the Steel Works in May 1916. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The group at the meeting of March 16, having summarily disposed of the "by-laws," then turned to what was apparently regarded as the important work of the meeting, consideration of the "Memoran- dum of Agreement." The minutes of the meeting record that: "It was agreed by those at the meeting to adopt the Memorandum agree- ment of the Plan with exceptions." The "exceptions" covered, for the most part, desired revisions in the provisions with respect to working and living conditions contained in the Pueblo "Memoran- dum of Agreement" and the addition of new provisions; the subjects discussed included payment for overtime, prices for coal to employees, house and garage rents, water and electricity rates, seniority, vaca- tions with pay, and the free removal of garbage. A second meeting on March 21 discussed further a provision on seniority and a pro- vision to the effect that "The list of dischargeable offenses shall be agreed upon between the management and representatives." On March 23 while Palmer, as secretary of the body of represen- tatives, was arranging his notes taken at the meetings of March 16 and 21, Bill Nancarrow, the timekeeper, came to Palmer's home and told him that if the notes were brought down to the office, Massey, the head clerk, would type them. Palmer went to the office and spoke to Wright, who told Palmer that since the "officials" were coming to Sunrise on Friday, March 25, the notes should be "drawed up" before they arrive. Palmer then gave his notes to Massey, who prepared them in typewritten form. The suggested revisions contained in the notes typed by Massey dealt mostly with wages, hours, and working and living conditions covering such matters as vacations with pay, seniority, house and garage rents, and electricity rates. In addition Massey's notes also included the provision for apportionment of representatives at Sun- rise which had already been followed in the election held earlier in the month.89 Wright testified that he had, at the request of De Fond, tele- phoned to Rupp and asked him to come to Sunrise. De Fond, how- ever, was not an officer of the body of representatives, and there is no evidence in the record to show that DeFond was delegated to notify Wright that the representatives desired a meeting. As stated above, De Fond did not testify. Rupp, Maxwell, Densmore, and Farrar, counsel for the respondent, came to Sunrise on March 25. Together with Wright they met with the representatives that evening.90 At Wright's suggestion Massey w The provision is substantially in the form as it appears in the copy of the Pueblo "by-laws" typed by Palmer. 90 Palmer could not attend the meeting, and Strong substituted for him, but Palmer joined the meeting later. THE COLORADO FUEL AND IRON CORPORATION 237 acted as secretary of the meeting. Copies of the 1937 booklet of the Plan at Pueblo and of the notes prepared by Massey were distributed and served as the basis for discussion. The meeting was adjourned that evening and continued again on the morning of March 26. The minutes of both meetings were prepared by Massey. These minutes recite as the purpose of and procedure followed at the meetings : In order to have a method of representation and procedure to follow in industrial relations for the purpose of collective bar- gaining, the Plan adopted by Employees and Management of the Colorado Fuel & Iron Corporation at the Steel Works in May 1916, and revised May 24, 1937 was read, discussed and changed to apply to conditions at the Sunrise District. [Italics supplied.] The minutes then record that : "For the purpose of fixing the basis of representation the following divisions and subdivisions were decided on." The "divisions and subdivisions decided on," and set out in the minutes, were those which had been observed at the election of March 7 and 14 and had thereafter been included in the notes typed by Massey as well as in the "by-laws" typed by Palmer. The meeting then turned to "the reading of the Memorandum of Agree- ment," and the revisions therein suggested by the employee repre- sentatives were discussed. A tentative agreement was reached on all questions except one, the rates to be charged the employees for electricity. On April 14 the employee representatives again met with the representatives of the respondent, and at the conclusion of the meet- ing an agreement was signed by the parties. This agreement, like the April 15, 1938, contract at Pueblo, is modeled after the Pueblo 1937 "Memorandum of Agreement." Like the 1938 Pueblo contract, however, the Sunrise agreement contains a provision dividing the employees of the mine into divisions as the basis for the election of representatives and a provision for the annual election of repre- sentatives."'. In addition, the provision in the Sunrise agreement expressly allots one representative to each subdivision, in this respect being more detailed than the 1938 Pueblo contract. The Sunrise agreement contains as well the same provisions describing the duties of the four committees as is contained in the 1938 Pueblo contract; the agreement at Sunrise, moreover, in describing the duties of the Committee on Cooperation, Conciliation, and Wages, refers to "both sides" on this committee, in the same language as the similar pro- 93 The provision in the 1938 contract at Pueblo provided for the biennial election of representatives. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vision commented upon in our discussion of the 1937 "Memorandum of Agreement" at Pueblo. The Sunrise agreement includes a pro- vision for termination, whereby the "foregoing provisions may be terminated by a majority vote of the employees of the Sunrise Division, such vote to be by secret ballot." A similar provision providing for termination of the "by-laws" and "Memorandum of Agreement" is contained in the "by-laws" adopted in 1937 at Pueblo, but is not included in the 1938 contract at Pueblo. The agreement entered into at Sunrise on April 14 was printed by the respondent in a booklet. Sometime in May these booklets were distributed to the men with their pay checks by Nancarrow, the timekeeper. On May 25 and 26, 1938, a quarterly conference was held at Sun- rise, at which wage rates were discussed and certain wages increased. In the third week of June, another meeting of the employee represent- atives was held in Wright's office "with all the foremen." The subject matter of this meeting is not disclosed by the record. According to Palmer, secretary-treasurer of the employee representatives, the only committee functioning at Sunrise was the Safety Committee, although he recalled one meeting of the Committee on Cooperation, Conciliation, and Wages. There is no evidence in the record of any other meetings under the Plan, either of the committees or of the employee representatives. 2. Interference, restraint, and coercion We have recounted above the activities of Bierleffi and Perry at Sunrise which were begun shortly after the first steps at organizing Local 442. In the course of these activities Bierleffi and Perry threatened the leaders of Local 442, told them that the respondent would never recognize Local 442, and indicated that the respondent might shut down because of this effort at organization. In addition Perry threatened to hold back contracts for mining because of the organizing activity of Local 442, and Bierleffi assisted in the circula- tion of the petition for the Plan. We have also noted that about February 9 Wright told Denver that he "was afraid" the respondent might not recognize Local 442, and also threatened a shut-down because of the organization of Local 442. Subsequently, when Rupp came to Sunrise on February 19, he also threatened the employees with a shut-down because of the activity of Local 442. In addition he characterized Local 442 as "a red-eyed organization from the out- side," expressed a dislike at seeing a "bunch of men led by a bunch of wild outsiders," and observed that some of the employees who had joined an affiliated union at Republic Steel had been killed, add- ing : "They paid for making trouble." Thereafter, when the delega- THE COLORADO FUEL AND IRON CORPORATION 239 Lion from Sunrise visited Pueblo, they were told by Quigg that the -Plan at Pueblo was a good one, and that continuation of activities in behalf of Local 442 would "throw us all out of a job," and Maxwell -again emphasized the theme that continued organization for Local -442 might lead to a shut-down, and suggested that the employees re- 'organize and reaffiliate with the Plan. The respondent, in its brief, admits the frequent and repeated state- ments by Bierleii and Perry urging the employees not to affiliate -with Local 442, and predicting that the mine would be shut down if they did, but contends that these statements did not reflect the respondent's policy and had no coercive effect on the employees. Neither contention is supported by the record. Bierleffi was general foreman, and second in authority only to Wright. Perry was Bierleffi's chief assistant. They thus occupied the second and third positions in the hierarchy of officialdom at Sun- rise. Occupying such positions, they necessarily represented to the employees the policy of the respondent. 92 Moreover, virtually iden- tical statements to those of Bierleffi and Perry were made by Wright, "Quigg, Rupp, and Maxwell. These statements by Wright, Quigg, Rupp, and Maxwell constituted interference, restraint, and coercion, and in addition are convincing evidence that the threats made by Bierleffi and Perry were part, of a concerted campaign which Ave find the respondent engaged in to defeat the organization efforts of -Local 442. To support its contention that the statements of Bierleffi and -Perry lacked coercive effect, the respondent refers in its brief to the testimony of several employees that, despite these statements, they retained their membership in Local 442. We cannot agree -with the contention that such statements were not coercive because they failed in their purpose of destroying Local 442. The statements were by their nature coercive; the respondent may not claim im- munity because they were not coercive enough to achieve their in- tended effect. 33 Moreover, the statements of Bierleffi and Perry, at least as reinforced by similar threats by Rupp, Maxwell, and Quigg, were not without effect. On the contrary, the discussion at the March 4 meeting of Local 442 clearly reveals that the employees ,decided, because of the fear engendered by these statements, to sup- port the Plan as a tactical move, while retaining their membership in Local 442 and seeking redress under the Act. 0 Matter of Jefferson Lake Oil Company, Incorporated and Sulphur Wot kers Local Union No. 21195, 16 N. L. R. B. 355 as Matter of The Yale t Towne Manufacturing Company and Amalgamated Association -of Iron, Steel and Tin Workers of North America, Lodge No. 161,7, et al., 17 N. L R B. 669. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent by the statements of its officials and agents which we have described above, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Domination of, interference with, and support of the Plan and the Employees' Representatives' Organization at Sunrise We have found above that the Plan was installed by the Company at Sunrise in 1915. Having the same structure, it was like the Plan at Pueblo, subject to the control and domination of the Company and, later, of the respondent. By the end of 1937, unpopular with the men and neglected by the respondent, the Plan had become virtually defunct. However, with the advent of an organizational campaign by Local 442 early in January 1938, the respondent abruptly aban- doned its attitude of "To hell with the damn plan" and made clear to the employees its desire that the Plan be revived as their bargain- ing representative. In addition the respondent assisted De Fond and others in promoting the Plan, at the same time manifesting an open and extreme hostility toward Local 442 by the acts we have described above. The respondent permitted the petition for the Plan to be circulated during working hours, and Bierleffi and at least one other supervisory employee cooperated in the circulation of the peti- tion. One employee was permitted to leave work in order to sign this petition. Rupp not only consulted and advised with De Fond on the question of holding a meeting among the employees and agreed to De Fond's suggestion to take a delegation to Pueblo to study the operation of the Plan there, 94 but prior to the departure of the delega- tion for Pueblo, Rupp took occasion to reiterate the respondent's hos- tility to Local 442. The respondent then financed and supervised a trip to Pueblo for the purpose of persuading the employees to adopt the Plan at Sunrise. At Pueblo the hostility of the respondent to- ward Local 442 was again expressed and the delegation from Sunrise was warned that continued operation of the mine was dependent upon the employees' acceptance of the Plan. Maxwell, while summarily rejecting the contract submitted by Local 442, and again reminding the delegation that activities in behalf of Local 442 might lead to a shut-down, counseled them to return to Sunrise and organize the Plan. The subsequent meetings at Sunrise, of all the employees on March 2, and of Local 442 on March 4, reveal that as a result of these "The evidence of De Fond's activities and his various consultations with officials of the respondent indicate that De Fond was acting as the agent and at the direction of the respondent. We find it unnecessary, however, to make a finding upon the point. THE COLORADO FUEL AND IRON CORPORATION 241 activities, the respondent was successful in persuading the employees to "string along" with the "Company Plan." Thereafter, following the election of employee representatives, the respondent urged and arranged an early meeting with the employee representatives for the purpose of negotiating a contract, and to ex- pedite matters caused the head clerk at Sunrise to prepare the notes of the meetings of the employee representatives. The respondent then met with the employee representatives as the bargaining repre- sentatives of the employees at Sunrise, and within approximately 3 weeks entered into the agreement of April 14. Thereafter, the agree- ment was printed by the respondent in a booklet and distributed to all employees with their pay checks by the timekeeper. The respondent's conduct toward the employee representatives con- trasted strikingly with the campaign initiated against Local 442 im- mediately after the commencement of its organizational activities, and with the summary rejection of the proposed contract submitted by Local 442. The respondent thereby plainly intended to impress the employees at Sunrise with the respondent's preference for and approval and support of the Plan, and the Employees' Representa- tives' Organization established thereunder. Moreover, as we have noted above, the respondent sat down with the employee representatives on March 25 and 26, not only to work out an agreement for recognition and conditions of employment, but to work out also, as the minutes of the conferences record, "a method of representation." As the minutes further state, the 1937 Pueblo "Plan . .. was read, discussed and changed to apply to conditions at the Sunrise district." The upshot was the inclusion in the agree- ment of April 14 of provisions setting forth the duties of committees, and the electoral basis for the choice of employee representatives, and providing for annual elections. The insertion, in an agreement with the respondent, of such pro- visions relating to the internal structure and functioning of the Em- ployees' Representatives' Organization insured the respondent of a considerable degree of control over that organization. While the agreement by its terms may be "terminated" by a majority vote of the employees,95 nevertheless, the employees, in order to change their form of organization through the exercise of this privilege of termi- nation of the agreement, would have to relinquish the contractual right to the benefits with respect to wages, hours, and other conditions of employment which were embodied in the agreement. The right to choose representatives cannot be said to be unfettered where its exercise is so conditioned. Furthermore, even aside from this specific e6 The agreement also provides that it is "subject to revision" by either party, whatever this provision may mean 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD barrier to change by the employees of the internal structure of the- organization, the incorporation of such provisions in a contract with an employer, even though nominally defeasible at will by his em- ployees, connotes employer participation in the administration of the labor organization, and constitutes an obstacle to the free admin- istration of the affairs of such organization. Such participation in and control by an employer of a labor organization of his employees are repugnant to the Act.as We find that the respondent, by the above-described course of con- duct, has dominated and interfered with the administration of, and has contributed financial and other support to, the Plan and the Employees' Representatives' Organization at Sunrise, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. The refusal to bargain collectively (a) The appropriate unit It was stipulated at the hearing, and we find, that the production and maintenance employees of the respondent at the Sunrise mine, excluding, all supervisory- and, clerical employees, all employees em- ployed at the respondent's boarding house or store, and all employees of the Colorado and Wyoming Railway Company constitute a unit appropriate for the purposes of collective bargaining. We find that said unit will insure to the employees of the respondent the full bene- fit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. (b) Representation by Local 442 of a majority in the unit At the hearing there was introduced into evidence a pay roll of the respondent which showed 138 employees in the appropriate unit as of February 18, 1938, the date on which the committee of Local 442 presented a contract to Wright and stated to him that Local 442 represented a majority of the respondent's employees at Sunrise. There was also,introduced a petition designating International Union of Mine, Mill, & Smelter Workers as the collective bargaining agency for the signatories to the petition. Eighty-seven employees in the appropriate unit as of February 18 had, by this date, either signed or authorized the placing of their names to this petition. Thus, at the time of the request to bargain on February 18, Local 442 clearly represented a majority of the employees in the appropriate unit. As shown by the attendance at subsequent meetings of Local 442 on 88 Cf. Matter of Revere Copper cE Brass Incorporated and United Electrical, Radio £ Machine Workers of America, Local # 33, 16 N. L R. B 437. THE COLORADO FUEL AND IRON CORPORATION 243 February 21 and March 4, this majority was retained during the course of the negotiations with the respondent. Indeed, as of the date of the hearing, the records of Local 442 plus the declarations of em- ployees of their intention to maintain their affiliation with Local 442 showed 88 members of a total of 159 in the appropriate unit. We find that on February 18, 1938, and at all times thereafter, Local 442 was the duly designated representative of a majority of the employees in the appropriate unit and that by virtue of Section 9 (a) of the Act, was the exclusive representative of all the employees in the unit for the purposes of collective bargaining. (c) The refusal to bargain As recited above, on February 18, 1938, Local 442 notified Wright that it had been designated as collective bargaining representative by a majority of the employees at the Sunrise mine and presented to Wright a draft of a proposed contract. Local 442 offered to sub- mit the question of majority to an election but Wright said that "that was all right," and stated that he would forward the contract to his "superiors." Wright then turned the contract over to Rupp, who delivered it to Maxwell at Pueblo. When the delegation from Sunrise came to Pueblo at the respond- ent's expense to study the Plan at Pueblo, Palmer asked Maxwell about the status of the contract submitted by Local 442. Maxwell replied that he "could never sign a contract of that kind," and that he spoke for Roeder, the president of the respondent. The respondent contends, in its brief, that it did not, by virtue of its refusal to sign the contract submitted by Local 442, thereby refuse to bargain with Local 442, and cites in support of this con- tention,' Maxwell's statement that he "could never sign a contract of that kind." The respondent argues that this statement was not a refusal to sign any agreement, but was limited to the agreement sub- mitted by Local 442, and that the Act does not require an employer "to accede to every demand made by a labor organization." We are not, however, presented with a situation wherein the par- ties failed to enter into a contract because of a disagreement on sub- stantive terms, as is apparently argued by the respondent. Max- well's statement that he "could never sign a contract of that kind" amounted to a refusal to bargain collectively. Not only did Max- well thereby summarily reject the proposed contract, but by failing to make any counterproposals or even to specify the respondent's objections, he plainly indicated that the respondent had no intention of bargaining with Local 442. That the respondent had no intention of bargaining in good faith with Local 442 is further evident from Rupp's conduct on about February 23. At that time, as we have noted above, Rupp, rather than suggesting that considerable nego- 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiation might be necessary to adjust the differences between Local 442 and the respondent, declared that because of these differences, the respondent, prior to any negotiations, was considering a shut- down of the mine. Moreover, the respondent's answer to Local 442's request to bargain was not limited to Maxwell's statement with regard to the contract. The evidence recited above clearly shows that the respondent replied to Local 442's request to bargain on February 18 by continuing the active campaign to destroy Local 442 which it had instituted prior thereto, and by promoting the forma- tion of a rival labor organization. Such action was manifestly and unequivocally a refusal to bargain.97 Moreover, as we have found above, Maxwell at the time of his rejection of the proposed contract told the delegation to go back to Sunrise and organize the Plan. Such action constituted a further refusal to bargain."" Thereafter, the respondent extended recognition to and entered into a contract with a labor organization which, we have found, it sponsored, promoted, and dominated. Thereby the respondent again, and this time, with complete finality, refused to bargain with Local 442. We find that in February 1938, and at all times thereafter, the respondent refused to bargain collectively with Local 442 as the rep- resentative of its employees at the Sunrise mine with respect to rates of pay, wages, hours of employment, and other conditions of employment and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 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 their operations 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. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. °T Cf Matter of Chicago Apparatus Company and Fedelat,on of Architects, Engtnees, Chemists and Technicians, Local 107, 12 N L R B 1002 98Matter of Foote Brothers Gear and Machine Corporation and United Office and Pro- fesszonal Workers of America, No. 211, 14 N L R B 1045 TIE COLORADO FUEL AND IRON CORPORATION 245 We have found that the respondent has dominated and interfered with the administration of and has contributed financial and other support to the Plan and the Employees' Representatives' Organiza- tions established thereunder at Pueblo and at Sunrise. We further find that the effects and consequences of the respond- ent's domination, interference with, and support of the Plan and the Employees' Representatives' Organizations established there- under both at Pueblo and at Sunrise, as well as continued recog- nition of them as bargaining representatives of its employees, con- stitute a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through representatives of their own choosing. The Plan and the Employees' Representatives' Organizations established thereunder have been utilized by the respondent as instrumentalities to defeat the rights of its employees under the Act. Because of the respondent's illegal conduct with regard to them, they are incapable of serving the respondent's employees as genuine collective bargaining agencies. Accordingly, we will order the respondent to disestablish and with- draw all recognition from the Plan and the Employees' Representa- tives' Organizations established thereunder as representatives of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment.99 We have found that the contracts entered into between the respond- ent and the Employees' Representatives' Organizations both at Pueblo and at Sunrise, have been a means whereby the respondent utilized employer-dominated labor organizations to frustrate self- organization and defeat collective bargaining by its employees. Under these circumstances, any continuation, renewal, or modification of the contract between the respondent and the Employees' Repre- sentatives' Organizations would perpetuate the forces which have deprived its employees of the rights guaranteed to them by the Act and would render ineffectual other portions of our remedial order. We shall, therefore, direct the respondent to cease giving effect to any contracts between it and the Employees' Representatives' Organ- izations established under the Plan, or to any modifications or exten- sions thereof, or any other contracts between it and the said labor organizations. We have found that a majority of the employees within the appro- priate unit at the Sunrise mine have designated Local 442 as their °B See National Labor Relations Board v Newport News Shipbuilding & Dry Dock Com- pany, 60 Sup Ct, 203; N. L. It. B v. The Falk Corporation, 60 Sup . Ct, 307; N. L R B. v Pennsylvania Greyhound Lines, 303 U. S. 201. 283033-41-vol :-2--17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative for the purposes of collective bargaining and that the respondent has refused to bargain with Local 442 as the exclusive representative of these employees. The respondent contends that, since a majority of the employees indicated their desire to be repre- sented by the employee representatives elected under the Plan, Local 442 was no longer the choice of the majority of the employees. The record is clear, however, that the employees supported the Plan purely as a tactical move, necessitated by the respondent's threats of a shut- down, and did not thereby intend to relinquish their designation of Local 442, but, on the contrary, expressly decided to continue it. What- ever effect might be given under other circumstances, to the desig- nation of two rival labor organizations, it is clear that expressions of preference for a dominated labor organization are not entitled to weight.""' Finally, as we have found above, as of the date of the hearing, a majority of the employees- still maintained their member- ship in Local 442.701 We shall, accordingly, order the respondent to bargain with Local 442 upon request as the exclusive representative of its employees in the appropriate unit at the Sunrise mine. We shall also order the respondent to take certain other action more particularly set forth in the Order. CI. THE PETITION In view of the findings in Section III B 4, above, as to the appropri- ate unit and the designation of Local 442 as the exclusive representa- tive of the respondent's employees in the appropriate unit, it is not necessary to consider the petition for investigation and certification of representatives. Consequently, this petition will be dismissed. 10°N L R. B v Brown Paper Mill Company, Inc, 108 F (2d) 867 (C. C A 5). It should be noted in this connection that the employees cannot be said to have joined or become members of the Plan , the most that can be said is that they participated in an election held under the Plan iii Moreover, if there had been any defection in the membership of Local 442 subsequent to February 18, this defection would cleaily halve been attributable to the respondent's unfair labor practices, and, should, therefore be disregaided in the consideration of a remedy to restore the status quo and effectuate the policies of the Act we would, there- fore, in accordance with our usual practice, disregaid the subsequent effects caused by the unfair labor practices of the employer and require the respondent to bargain with Local 442 See Matter of The Gates Rubber Company and Denver Punting Pressmen and Assistants Union No 40, et at, 18 N L R B 158, Matter of Continental Oil Company and Oil Woikets International Union, 12 N L R B 739, Matter of Charles Cashman Company, at at and United Shoe Woi kcrs of America, 15 N L R B 90; Matter of Lady Ester Lingerie Corp and International Ladies Garment Workers Union, Affiliated with the Committee for Industrial Organization, 10 N L R B 518; Mattel of Arthiu L Colten and A J Colman, et at and Amalgamated Clothing Workers of America, 6 N L R B 355, cut'(], N L R B v Kiddie Dover Manufacturing Co , at at , 105 F (2d) 179 (C C. A. 6). Cf. N. L. R. B. v. Biles-Coleman Lumber Co, 96 F (2d) 197 (C C. A. 9) ; Brotherhood of Railway Clerks v. Texas & N 0. R. Co, 24 F. (2d) 426 and 25 F. (2d) 873 (S D Tex ), aff'd 33 F. (2d) 13 (C. C. A. 5), aff'd 281 U. S. 548;, N. L R. B. v. Highland Pail,. Man ufactu, ny Con, pony, 110 F (2d) (;i2 (C C A 4) 0 THE COLORADO FUEL AND IRON CORPORATION 247 Upon the basis of the above findings of fact and upon the entire record in these proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. International Union of Mine, Mill, and Smelter Workers, Local 442, the Plan, and the Employees' Representatives' Organizations, established thereunder at Pueblo and at Sunrise are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of and contributing financial and other support to the Plan at Pueblo, and the Employees' Representatives' Organization established thereunder at Pueblo, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By dominating and interfering with the administration of and contributing financial and other support to the Plan at Sunrise and the Employees' Representatives' Organization established thereunder at Sunrise, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. The production and maintenance employees of the respondent at its Sunrise mine, excluding all supervisory and clerical employees,, all employees employed at the respondent's boarding house or store, and all employees of the Colorado and Wyoming Railway Company, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act. 5. International Union of Mine, Mill, and Smelter Workers, Local 442, was, on February 18, 1938, 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. 6. By refusing to bargain collectively with International Union,, of Mine, Mill, and Smelter Workers, Local 442, as the exclusive- representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the' meaning of Section 8 (5) 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 unfair labor practices enumerated above are unfair labor practices 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. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the National Labor Relations Board hereby orders that the respondent, The Colorado Fuel and Iron Corporation, Denver, Colo- rado, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of the Plan at Pueblo or the Employees' Representatives' Organization estab- lished thereunder at Pueblo, or with the administration of the Plan at Sunrise or the Employees' Representatives' Organization estab- lished thereunder at Sunrise, or with the formation or administra- tion of any other labor organization of its employees, and from contributing financial or other support to said labor organizations or to any other labor organization of its employees; (b) Giving effect to the contract or any modification or extension thereof or any other contract between the respondent and the said labor organizations; (c) Refusing to bargain collectively with International Union of Mine, Mill, and Smelter Workers, Local 442, as the exclusive repre- sentative of the production and maintenance employees of the re- spondent at its Sunrise mine, excluding all supervisory and clerical employees, all employees employed at the respondent's boarding house or store, and all employees of the Colorado and Wyoming Railway Company, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their 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 or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from the Plan, and the Employees' Representatives' Organizations established thereunder at Pueblo and at Sunrise, as the representatives of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor disputes, wages, hours of employment, or other conditions of employ- ment, and completely disestablish the Plan and the Employees' Rep- resentatives' Organizations established thereunder at Pueblo and at Sunrise, as such representatives; (b) Upon request bargain collectively with International Union of Mine, Mill, and Smelter Workers, Local 442, as the exclusive representative of the production and maintenance employees of the respondent at its Sunrise mine, excluding all supervisory and clerical employees, all employees employed at the respondent's boarding house THE COLORADO FUEL AND IRON CORPORATION 249 or store, and all employees of the Colorado and Wyoming Railway Company, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Post immediately in conspicuous places throughout the plants involved, and keep posted for at least sixty (60) consecutive days, notices stating : that the respondent will cease and desist in the man- ner set forth in 1 (a), (b), (c), and (d) of this Order; will take the affirmative action set forth in 2 ( a) and (b) of this Order; and that the organization of the employees at the Sunrise mine by Interna- tional Union of Mine, Mill, and Smelter Workers, Local 442, or any other labor organization will not cause a shut-down of the mine; (d) Notify the Regional Director for the Twenty-second Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives be, and it hereby is, dismissed.