Interlake Iron Corp.

In the Matter Of INTERLAKE IRON CORPORATION , A CORPORATION and LOCAL UNION No. 1657, STEEL WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. C-1623.-Decided July 21, 1941 Jurisdiction : pig iron, coke, and coal byproducts manufacturing industry. Unfair Labor Practices In General : employer responsible for activities of an employee in behalf of inside union of which he was president while he was temporarily engaged in supervisory duties. Interference, Restraint, and Coercion : statements by supervisory employees favor- ing inside union and hostile to outside union. Company-Dominated Union : charge of, dismissed. Discrvmination : making necessary reduction of personnel in manner violating em- ployer's usual lay-off policy, based on merit-rating system ; making necessary reduction of personnel on basis of discriminatory application of a merit -rating system ; charges of, dismissed as to eight persons. Remedial Orders : reinstatement and back pay ; back pay order not to include period between Intermediate Report and date of service of order in cases of employees found by the Trial Examiner not to have been discriminated against ; held purposes and policies of Act require reinstatement of all em- ployees discriminated against irrespective of • whether or not they have ob- tained substantially equivalent employment. Mr. Stephen M. Reynolds, Mr. Albert P. Wheatley, and Mr. Thur- low Smoot, for the Board. Pope & Ballard, by Mr. Henry E. Seyfarth and Mr. Lee C. Shaw, of Chicago, Ill., for the respondent. Mr. John J. Brownlee, of Chicago, Ill., for the Union. Cusack d Cusack, by Mr. John F. Cusack, of-Chicago, Ill., for the Association. Mr. George Turitz, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges 1 duly filed by Local'Union No. 1657, Steel Workers Organizing Committee, affiliated with the Con- ' The original charge was filed September 22, 1938 , the amended charge, April 21, 1939, and the second amended charge, May 2, 1939. 33 N. L. R. B., No. 112. 613 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gress of Industrial Organizations, herein called the Union; the Na- tional Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated April 21, 1939, against Interlake Iron Corporation, Chicago, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accom- panied by notice of hearing thereon and copies of the amended charge, were duly served upon the respondent, the Union and Employees As- sociation of Interlake Iron Corporation, herein called the Association. With respect to the unfair labor practices, the complaint, as amended at the hearing hereinafter referred to, alleged, in substance. that the respondent : initiated, fostered, and promoted the formation and continuation of the Association; by diverse means advised, en- couraged, urged, and warned its employees to join the Association, and otherwise dominated and interfered with the administration of the Association and contributed support thereto; advised, urged, and warned its employees to refrain from becoming or remaining members of the Union and made disparaging remarks to its em- ployees about the Union and its leadership ; on and before January 7, 1938, warned employees that if the Union won in an election to be conducted by the Board on January 7, 1938, the respondent would close its plant; laid off or discharged and refused and failed to employ Ray Beckley, Henry Buehler ,3 Paul Bulich, Peter Cipich, Clarence Cristy, Joseph DiSanto,4 George A. Dreznes, Jr.,5 Harry Horton, Eli Knezevich, Alex Kostuch,6 Anton Kure, John Nazy,7 Henry Newsam,3 Glen Rose, Emil Ulaszek, and Gage Woods because they joined' and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and ,other mutual aid and protection, thereby discouraging membership in the Union;" and.by the foregoing and other acts interfered with, re- 2 The Union was referred to in the charge, amended charges , complaint, and other papers in this proceeding as Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No 1657, through Steel Workers Organizing Committee , affiliated with the Congress of Industrial Organizations . On March 20 , 1941, pursuant to motion made by lodges of the Amalgamated Association of Iron , Steel and Tin Workers of North America and Steel Workers' Organizing Committee , and upon due notice to the parties, the Board ordered that the caption and record in this proceeding be amended so as to state the name of the Union as set forth above 8 Erroneously listed in the Amendment ,to the complaint as Henry Buehler 4 Erroneously listed in the complaint as Joseph De Santo. 6 Erroneously listed in the complaint as George J Drezues, Jr. 6 Erroneously listed in the complaint as Alex Kosctch. 7 Erroneously referred to in the record as John Nazi 8 Also referred to in the record as Bert Newsam 9 The complaint , when served, did not name Cipich and Newsam. On May 4 , 1939, ,the Trial Examiner granted the motion of counsel for the Board to amend the complaint .INTERLAKE IRON CORPORATION 615 strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. , The respondent filed its answers to the complaint and the amend- ment to the complaint, admitting that it laid off or discharged the employees named in the complaint, as amended, but otherwise denying the allegations of the complaint, as amended, with respect to the unfair labor practices. The respondent's answers affirmatively al- leged that the employees named, were laid off along with a large number of other employees because of reduced operations and neces- sary reduction of working forces and in accordance with a fair and just system of rating employees. The answers further alleged that the Board, the Union, and each of the said persons named in the complaint, as amended, were guilty of lathes in that an unreasonable time elapsed between the commission of the alleged unfair labor prac- tices set forth in the complaint and the service of said complaint upon the respondent. On May 1, 1939, at the hearing hereinafter mentioned, the Asso- ciation filed its petition to intervene, wherein, among other things, it alleged that on January 7, 1938, pursuant to a Direction of Elec- tion issued by the Board, an election by secret ballot was conducted among employees of the respondent at which the Association re- ceived a majority of the ballots cast; that on April 23, 1938, the Board certified the Association as the exclusive representative for purposes of collective bargaining of all employees eligible to parti- cipate in the election ; that the Association 'represented all the re- spondent's hourly employees; that on'August 1, 1938, the Association entered into an oral contract with the respondent, contained in a statement of agreement issued by the respondent on August 1, 1938, which contract was in full force and effect and not terminable by either party prior to August 1, 1939; that any order issuing as a result of the hearing would affect the contract; and that the allega- tions of the complaint were in derogation of the results of the election.. Pursuant to notice, a hearing was held at Chicago, Illinois, from May 1 to June 30, 1939, before Herbert Wenzel, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the re- spondent, and the Association were represented by counsel and par- ticipated in the hearing. At the commencement of the hearing the Association submitted to the Trial Examiner its petition to intervene above described, which petition the Trial Examiner granted "to the extent that the Association is interested." On June 26, 1939, at the by adding the names of Cipich and Newsam as employees discriminated against At the same time counsel for the Board placed in evidence a copy of the second amended charge. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing, the respondent filed a motion that the record remain open for the testimony of one Thomas Adams, which motion was granted by the Trial Examiner by his order dated July 20, 1939, which was duly served upon the parties. Pursuant to the order a further hearing was held before the Trial Examiner on July 29, 1939, at Washington, D. C., at which place the Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues, was afforded all parties at the hearings. During the course of the hearings the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed such rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby, affirmed. During the course of the hearing the respondent and the Association made several motions to dismiss the complaint rulings on which were reserved by the Trial Examiner. On or about June 15, 1940, the Trial Examiner filed his Inter- mediate Report, copies of which were duly served upon the parties, in which he denied the respondent's and the Association's respective motions to dismiss the complaint, rulings on which had been reserved at the hearing, except for the portions thereof which were consistent with the findings of fact and conclusions of law in the Intermediate Report. He found that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1) and (3), and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such practices and that the respondent reinstate with back pay Henry Buehler, Eli Knezevich, Glen Rose, and Gage Woods. He also rec- ommended that the complaint, as amended, be dismissed with respect to the 12 other employees named therein and in so far as it alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. On July 10, 1940, the Union filed exceptions to the Intermediate Report. On July 11, 1940, the respondent requested oral argument, and on July 12, 1940, the Asso- ciation requested oral argument and the respondent 'and the Associa- tion filed their respective exceptions to the Intermediate Report. On October 3, 1940, pursuant to notice, a hearing was held before the Board at Washington, D. C., for the purpose of oral argument. The respondent and the Association were represented by counsel and par- ticipated in the hearing. The Board has considered the briefs and the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order below, finds the exceptions to be without merit. IIQTERLAKE IRON oORPOR.ATPON 617 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Interlake Iron Corporation is a New York corporation having its principal place of business in Chicago, Illinois. It is engaged in the business of manufacturing and distributing pig iron, coke, illumi- nating gas, and coal products and has manufacturing plants and blast furnaces located in the States of Minnesota, Pennsylvania, Ohio, and Illinois. This case is concerned only with the Chicago, Illinois, plant. Practically all the raw materials used in manufacture at the Chi- cago plant, consisting chiefly of from 600,000 to 700,000 tons of iron ore per year, about 1,000,000 tons of coal per year, and large quantities of limestone, are transported to the plant from outside the State of Illinois. The total production of the Chicago plant amounts an- nually to approximately 350,000 tons of pig iron, 700,000 tons of coke, and large amounts of gas, tar, light oil, and ammonia. Ap- proximately 35 per cent of the pig iron and 25 per cent" of the coke' are transported to customers outside the State of Illinois, and the, light oil and ammonia are also sold and transported throughout" the' United States. The number of persons employed at the Chicago plant usually varies between about 600 and 1,000. U. THE LABOR ORGANIZATIONS INVOLVED Local Union No. 1657, Steel Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organi- ' zations, herein called the C. I. O. It,admits to membership employees, of the respondent. Employees Association of Interlake Iron Corporation is a labor organization without outside affiliation. It admits to membership employees of the respondent. M. THE UNFAIR LABOR PRACTICES A. Baokgrownd; the Plan The respondent's Chicago plant, generally known as the "South Chicago Plants," is divided " into two divisions, commonly referred to as the "Coke Oven Division" or "Coke Oven Plant," and the "Fed- eral Blast Furnace Division" or "Furnace Plant." In. the Coke Oven Division the coke ovens and auxiliary equipment occupy about 100 acres; the coal dock, 30 acres; and the gas line and other equipment, 618 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD 40' acres. The Blast Furnace, Division is a separate section of the plant, occupying about 70 acres across a river from the Coke Oven Plant. The testimony frequently refers to the "coke side" or the "furnace side" as separate groups, as they are separate operations in buildings some distance apart. Shortly after passage of the National Industrial Recovery Act by Congress on June 9, 1933,10 the respondent called a meeting of its em- ployees at which Charles L. Waggoner, the plant manager, read Section 7a of that statute, which dealt with labor relations. There- after, on June 14, a meeting of representatives of the employees in the various departments, called by the respondent, was- held in Wag- goner's office. Waggoner read an employee representation plan,, herein called the Plan, which was discussed paragraph by paragraph by him and the representatives and, after Waggoner left the room, was then unanimously approved and accepted by the representatives. The next day ballots prepared by the respondent were distributed among the employees for them to vote on whether or not to have an employee representation plan. They voted 228 to 8 in favor of having a plan. Printed copies of the Plan were then distributed among the employees who, on the following day, June 16, 1933, voted 254 to 7 in favor of its adoption, again on ballots provided by the respondent. Most of the employees participating in the elections were from the Coke Oven Division as the Blast Furnace Division was not then employing its full force. The Plan provided for a Joint Council consisting of elected employee representatives and appointed representatives of management, each side having one vote. Waggoner served as the first chairman of the Joint Committee but, on his resignation, was succeeded by Harry Nicholas Harper,' an employee representative. Later Frank Kimbel, a foreman, served as chairman, and he was succeeded by Milton Raybould, another foreman. Kimbel and Raybould were manage- ment representatives. David Medalie, plant personnel manager, served as secretary of the Plan and edited the minutes of all the meet- ings. The respondent also furnished a stenographer who took short- hand notes of the proceedings. Employee representatives were paid for the time spent conferring with the management or attending authorized committee meetings. The Plan had no means of inde- pendent financial support. No dues were paid and all expenses and requirements were met by the respondent. 'While the employee rep- resentatives met once a month as a separate group, the record shows that the Plan received support from the respondent and was at all times under its influence, supervision, and domination. 10 48 Stat. 195. ,'Harper was generally known as Nick Harper, and was so referred to in the record. INTERLAKE IRON OORPOR.ATTON 619 In about August 1933 a number of employees organized the Inde- pendent Gas Workers Union, an affiliate of the American Federation of Labor. Meetings were held over a period of several weeks, but the organization was abandoned after a number of its members, in- cluding all the officers, were laid off or discharged. The employees were subsequently reemployed, following intervention of the National Labor Board of the National Recovery Administration, but the organization was never revived. During the year 1935, at a time when the Act was being considered by Congress, the employee representatives of the Plan were notified by Medalie to report to Waggoner, which they did. Waggoner had prepared a telegram stating that the Employees Representation Plan opposed the passage of the Act, which he asked the representatives to sign. The representatives retired from the office for discussion and then returned and signed the telegram. No attempt was made to abandon any of the practices found in the paragraphs above with respect to the Plan until about April 28, 1937, when, as set forth below, the Plan was officially dissolved. It is clear that for nearly 2 years after July 5, 1935, when the Act became law, the respondent persisted in dominating and interfering with the formation and administration of the Plan and contributing financial and other support thereto. The allegations of the complaint, however, are not directed at the Plan and we shall therefore make no conclusions of law with respect thereto. B. The Association 1. Chronology of events On April 21, 1937,-9 days after the constitutionality of the Act was upheld by the Supreme Court of the United States,12 the management of International Harvester Company, which had a plant adjoining the respondent's Chicago plant, wrote a letter to its employees in- forming them of action taken by the Board in a decision dated November 12, 1936, with respect to an employee representation plan at the Fort Wayne plant of the International Harvester Company.13 Waggoner obtained a copy of the letter and on April 28, 1937, he called a special meeting of the Joint Council of the Plan for the purpose of its dissolution. The employee representatives in attendance at the last' meeting were Nick Harper, Albert-Swanson, John Baricevac, Peter Ojanovac, Warren McHenry,' Sr., Harry Baadsgaard, Carl Klein, John Lutgen, 12 N. L. R. B. v. Jones & Laughlin Steel Corp ., 301 U. S. 1, and three other cases in which the Board was a party, all decided April 12, 1937. 'a Matter of International Harvester Company and Local Union No. 57, International Union, United Automobile Workers of America, 2 N. L. R. B. 310. 620 DECISIONS OF'NATIONAL LABOR 'RELATIONS BOARD Oliver Johnson, and Harry Stokes, Jr. The management represent- atives included Charles L. Waggoner, Fred Hagedorn, Phillip John- son, Milton Raybould, Richard Oliver, and Howard W. Smith. Waggoner read a prepared statement to the Joint Council in which he quoted the following portion of the International Harvester Com- 'pany's letter to its employees above referred to: The Board did not find or suggest that the Company had dis- criminated in any way against the employees who were members of unions. The Board's conclusion that the operation of the Plan interfered with employees' freedom of action, was based largely on its findings that-the Company initiated'the plan and commended it to the attention of new employees; and that the Company paid for printing the minutes of meetings and election ballots and allowed employe representatives their regular hourly pay while attending to Council activities; and that the exten- sion of the Council proceedings to cover subjects of safety, athletics, recreation, Employee Benefit Association and other mat- ters of mutual interest constituted improper support of the plan and tended to lead to an inadequate discussion of the more funda- mental subjects of wages, hours, grievances, etc. Waggoner's prepared statement then continued : While our Employees' Representation Plan does not exactly follow the lines of the International Harvester Council Plan, it is sufficiently similar that there is little doubt that it would be subject to criticism. The Interlake Iron Corporation, being desirous of cooperating with the government's effort to eliminate industrial strife and in the belief that it is not for the best interest of the employees or the Company to continue collective bargaining under a plan which may be subjected to criticism, has come to the conclusion that it should no longer deal with the representatives of employees elected under the "Plan of Em- ployees' Representation-South Chicago Plants-Interlake Iron Corporation." Waggoner then moved that the Plan be dissolved and that the minutes of the meeting be posted in the plant as notice to the employees of such dissolution. He also stated : ' We want to take this opportunity to thank the Employees' Representatives, together with the' representatives of the Man- agement, for the earnest effort and fairness with which they have approached matters coming under their jurisdiction in the past. With the spirit of fairness on both sides we have been able to settle our differences amicably. We believe that as long as the spirit of fairness exists between our employees and ourselves, fair and just solutions to our problems are possible. INTERLAKE IRON GORPOR.ATION 621 The minutes of the meeting in evidence state that Waggoner next requested that action be taken on his motion, which was thereupon seconded by Superintendent Hagedorn and passed without discussion. The meeting then adjourned, having lasted, according to the minutes, from 1:05 p. m. to 1;15 p. m. Thereafter copies of the_ minutes were posted in the plant and it became generally known among the employ- ees that the Plan had been dissolved. • The recorded minutes of the dissolution meeting mention no other discussion or colloquy. Harper, while not specifically denying the state- ments attributed to Waggoner in the minutes, testified that Waggoner said : "Well, boys, I suppose you have been reading the papers. You know that the Supreme (Court) has upheld the National Labor Rela- tions Act, and that means the end of our employees' representation plan. But you need not feel alarmed about the situation; you don't have to go on the outside to join a union. You can form your own organization in the plant. Now if you need any further information, you know where to get it." Harper further testified that Waggoner then berated the President, Congress, and the Administration in Wash- ington, because of the existence. of laws which made it necessary to dissolve various employee representation plans which for years had "worked very well." Waggoner denied having made the statements attributed to him by Harper, contending that he merely read the pre- pared statement recorded in the official minutes. He testified that he did not remain after the meeting adjourned as he was late for the funeral of his brother, adding, "I got up and said, `So long fellows, I suppose you want to say goodbye to one,another.' And the manage- ment representatives and Miss Oliver 14 left with me." Hagedorn and Raybould, management representatives, corroborated Waggoner's .testimony. Swanson, Baricevac, Klein, and Stokes, Jr., employee rep- resentatives, denied Harper's testimony and the other employee repre- sentatives who testified made no specific reference to statements of Waggoner at this meeting. Baricevac, who had been called by the respondent, testified that Waggoner spent about 5 minutes reading his prepared statement and then spoke for 10 to 25 minutes extempora- neously. He also testified that no minutes were taken at the meeting. The record shows clearly that much discussion took place at meetings of the Joint Council which was not recorded in the minutes,' either because someone requested that it be "off the record" or because it took place before or after the formal meeting. While we are convinced, as was the Trial Examiner, that Waggoner made statements to the mem- bers of the Joint Council on April 28 other than those admitted by him, we are of the opinion, as was the Trial Examiner, and find, that the U The stenographer, a regular employee of the respondent , who recorded the minutes of the1 meetings of the Joint Council. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record as a whole does not justify a finding that he made the particular statements attributed to him by Harper. After the representatives and the stenographer left the room, dis- cussion took place among the employee representatives, during which Carl Klein suggested the formation of an unaffiliated, or independent, union. The employee representatives decided to canvass their employee constituents to determine whether they wanted to join the A. F. of L. or the C. I. O. or form an independent union. They agreed to hold d-a meeting at the Calumet Park Field House, which was outside the plant, about a week later for the purpose of reporting their findings as to the employees' wishes. Many of the employees were canvassed and' it appears that some favored the C. I. 0., while others were non-committal or favored an independent organization. A few favored the A. F. of L. Some departments were canvassed haphazardly while in others the canvass was more thorough. The men in Carl Klein's department appeared to be equally divided in their preference for the C. I. O. or an inde- pendent organization, while the department represented by Harper was at least 90 per cent for the C. I. O. Baricevac testified that the dock coal department was unanimous for the C. I. 0., while Stokes, Jr., testified that the sentiments of the engineers and firemen in his department were divided among all three types of organization, with no majority for any one. Swanson testified that a majority of the men in his department, practically all stationary engineers, favored an independent organization. There is insufficient evidence to support a finding as to results of the canvass of employees made by the other representatives, except that there was divided sentiment among the employees. On April 28, 1937, when the Plan was dissolved, there was no labor organization claiming to represent the employees of the respondent. Immediately, however, the employees throughout the plant exhibited interest in labor organizations. On April 29 the Union field a meet- ing at which numerous employees signed application cards. At about the same time Harry Stokes, Sr., Herbert Feldt, and Harry Snell, who were employed as licensed stationary engineers, took steps to ,form an organization limited to the employees of the plant. Stokes, Sr., Snell, and Feldt often rode home from work together and for several days in the latter part of April they discussed promoting an unaffiliated organization among the employees. On the evening of Monday, May 3, 5 days after dissolution of the Plan, Snell, Stokes, Sr., and Feldt conferred with John Cusack, attorney of record for, the Association, at the South Chicago Y. M. C. A. and retained him as counsel to organize the Association. Cu- sack discussed the "Wagner Act" and preorganizational procedure to I4V.PERLAK'E IRON OOI POR;AP ON 623 establish and incorporate an independent organization. He urged incorporation, stating that a charter would give employees a feeling of stability and free the organization from "Company Union" allega- tions. Stokes, Sr., Feldt, and Snell advanced the cost of incorpora- tion, a "purpose clause" for inclusion in the charter application was prepared, and a form for the application cards was drafted. Another meeting was scheduled for the following Saturday, May 8, 1937. Stokes, Sr., had the application cards printed and personally advanced the cost on May 5, 1937, when they were delivered to him. The meeting agreed upon by the Plan representatives was held at the Calumet Park Field House on May 5, 1937. Harper arrived late and remained for only a short time. He accused the other represent- atives, particularly Warren McHenry, Sr., and Harry Stokes, Jr., of failing to poll all the employees in their respective departments, and he accused McHenry of sponsoring an independent union in violation of an agreement among the representatives to await the result of the canvass and then abide by the wishes of the majority of employees. He contended that organizers had called at the homes of employees on behalf of an independent organization. Harper, Klein, and other representatives announced the results of the canvass in their respec- tive departments and some discussion took place. However, no action was taken and no plans were made for a future meeting. The next day, May 6, McHenry, Sr., was in the gatehouse when Harper came to work. McHenry, an employee in the respondent's personnel department, had obtained leave of absence the previous day, May 5, in order to take temporary employment elsewhere. He in- formed Harper that an independent association was being organized and he displayed application cards of the Association, adding that he was giving them to the former employee representatives for dis- tribution to the employees. Harper refused to take any applications but joined the Union the same day and became an open advocate in its behalf, soliciting and "signing up" numerous employees. McHenry denied that he had the applications when he so encountered Harper, contending that it was only a few days after the Plan had been dis- solved on April 28, 1937. The Trial Examiner, who saw and heard the witnesses, accepted Harper's' testimony in this respect, and we find that the incident occurred as testified to by Harper. Application cards for both the Association and the Union were distributed among employees and some solicitation was carried on during working hours. Both the Union and the Association engaged equally in this practice in their organization campaigns. Apparently the respondent did not object to such activity by either group as the solicitation generally did not interfere with the employees' work. Such canvassing as was carried on in the plant was usually carried on during rest periods 624 - DECISIONS OF' NATIONAL LABOR RELATIONS BOARD or immediately after work hours, although on occasion certain em- ployees would return to the plant on their off-days for the purpose of solicitation. It was not unusual for employees to come into the plant on their off-days, and hence it did not cause interrogation by supervisors. On May 8, 1937, Stokes, Sr., Snell, Feldt, and several other employ- ees met with Cusack at the South Chicago Y. M. C. A. pursuant to the arrangements which they had made at their May 3 conference, as stated above. On that day and the next 15 employees signed an application for articles of incorporation for the Association, which was submitted to the Secretary of State for the State of Illinois.- The Association then sponsored an open organizational mass meet- ing for all employees, which was held on May 12, 1937, at the South Chicago Masonic Temple. On May 20, 1937, the Association held its first closed meeting at the Masonic Temple. Herbert Osgood, an employee, served as chairman, and at this meeting temporary officers were elected. Those elected were Leo Mitchell, president; Albert Velchek, vice president; Carl Klein, secretary; Elmer Klefman, treas- urer; and Gus Krause, sergeant at arms. The first three were former Plan representatives. Stokes, Sr., Snell, Feldt, and Johnson turned over the application cards and dues money to the new officers. There- after Stokes' activity completely ceased. A committee, consisting of Columbus Brooks, Leon H. Wheeler, Gus Krause, Carl. Klein, and Axel Johnson, was appointed to confer with the management of the respondent and to request sole bargaining rights. The committee, together with the temporary officers, presented its demand to the management. On May 25, 1937, the respondent posted notices to its, employees stating that the Association had requested recognition as the sole bargaining agency for all the employees. The notice concluded with the statement that the respondent had agreed to recognize the Associa- tion as the representative of its members and had asked for a reason- able time in which to consider the request to bargain for all employees. On June 2, 1937, after demand by a committee from the Union, the respondent posted similar notices with respect to the Union, which had likewise been active and had been gaining members. Four of the eight members of the committee referred to were former Plan repre- sentatives, and Harper, the first permanent chairman of the Union, had been the most active employee representative under the Plan. On June 3, 1937, the Association held another meeting and adopted a constitution and set of bylaws prepared by Cusack. Permanent officers were chosen early in July at an election conducted by the Association at the St. Kevin Church Hall. The permanent officers 15 The corporate charter was issued on May 13, 1937. INTERLAKE IRON CORPORATION 625 together with the representatives elected from the various departments constituted a board of representatives and held separate meetings, aside from the general membership meetings, in order to carry on the executive business of the Association. A demand was made on the respondent' for a graduated vacation plan which the management refused, claiming that it could not bargain with the Association on such matters until it established that it represented a majority of the employees. Minor demands, such as requests for drinking fountains, were, however, granted. Regular membership meetings were held at first every week and later every 2 weeks. On June 24, 1937, the Union filed a petition with-the Board alleging that a question affecting commerce had arisen concerning the repre- sentation of employees at the respondent's plant, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On September 9, 1937, the Board ordered an in- vestigation and authorized the Regional Director to conduct it 'and provide for an, appropriate hearing upon due notice. On September 24 and 25, 1937, pursuant to notice, a hearing was held at Chicago, Illinois, before a Trial Examiner duly designated by the Board. After examining the record in the case, the Board, on November 9, 1937, is-• sued a Direction of Election,18 finding a unit appropriate for the pur- poses of collective bargaining and designating the employees eligible to participate in the election. Pursuant to the Direction of Election and amendments thereto, an election by secret ballot was conducted on January 7, 1938, under supervision of agents of the Board. Both the Union and the Association appeared on the ballot and employees were given a choice of either organization or neither. On January 11, 1938, the Regional Director issued his Intermediate Report on Secret Ballot, and reported the following : Total Number Eligible--------------------------------------- 865 Total Number Ballots Cast----------------------------------- 754 Ballots Cast for Employees' Association of Interlake Iron Corporation----------------------------------------------- 437 Ballots Cast for Steel Workers Organizing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Local No. 1657----------------------------- 280 Ballots Cast by Employees Desiring Neither Organization------- 19 Challenged Ballots Cast-------------------------------------- 14 Blank Ballots Cast-- ---------------------------------------- 0 Ballots Spoiled or Void --------------------------------------- 4 On January 16, 1938, the Union filed objections to the Report, alleging that the fair and impartial conduct of the ballot had been interfered with by the activities of Cusack, the respondent, and the Association. 18 Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1657, 4 N. L. R. B. 55. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. A hearing on the objections was held on March 7 and 8, 1938, at Chicago, Illinois, before the same Trial Examiner who presided at the hearing in the present proceeding, and on April 14,1938, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The Board issued its Decision and Certification of Representatives 17 on April 23, 1938, finding that no activities of the respondent or officers or members of the Association created any im- pediment to, or interfered with, the fair conduct of the election. The actions of Cusack were characterized as unprofessional and objection- able and not setting an example conducive to maintaining proper decorum at the polls. The Board concluded, however, that his conduct was not such as to warrant invalidation of the election results. The Association was thereupon certified as the exclusive representative of all employees within the appropriate unit for the purposes of collective bargaining. The Association was thereafter recognized by the respondent as the employees' sole bargaining agent. It bargained with the respond- ent for a more liberal vacation plan, for a safety bonus to be paid in cash, and for more frequent pay days. The respondent refused to alter the vacation plan already in effect, but did institute more frequent pay days and, apparently in lieu of the more liberal vacation plan proposed, the safety bonus. The question of seniority rights cul- minated in the, Association's proposing to the respondent, through its seniority committee, a merit-rating system, already inaugurated by the respondent and urged by Cusack. The respondent accepted the proposal. Minutes of Association meetings reveal that for months afterwards the members still did not clearly understand its operation. On August 1, 1938, the respondent and the Association entered into a contract which was incorporated in a statement of agreement signed by the respondent and posted in the plant. The agreement embodied the various provisions agreed upon at bargaining conferences, and set out the general outline of the merit-rating system. The agreement provided for arbitration, the expenses to be paid jointly by the re- spondent and the individual employee involved. 2. Conclusions with respect to the Association The evidence is insufficient to support a finding either that the re- spondent through its supervisory employees interfered with the formation of the Association or that the Association was the successor to the plainly dominated Plan. The Association and the respondent contend, moreover, that the issues with respect to alleged violation of Section 8 (2) of the Act were resolved by the Board's certification of the Association, and that the Board is for this reason estopped from 17 6 N. L R. B. 780. INTERLAKE IRON CORPORATION 627 finding that the respondent violated Section 8 (2) of the Act with respect to the Association. While we do not agree with this con- tention,18 in considering the status of the Association, it is highly significant that the Union, the officials of which were in close touch with the respondent's employees, accepted the Association as an elec- tion rival and allowed its certification without once raising the issue of the respondent's domination or support of the Association, or of the Association's capacity to act as collective bargaining representative of the employees. Even when, on September 22, 1938, it filed the original charge against the respondent, it included no allegation that the Association was company dominated. Indeed, the Union filed no charge of domination or'support of the Association until April 1939, a year after the certification and 2 years after the Association's inception. As found in Subsection C, below, officials and supervisory employees of the respondent made numerous statements during the Association's organizational campaign in favor of the Association and in opposi- tion to the Union. We are of the opinion, however, as was the Trial Examiner, that notwithstanding such activities of the respondent, the evidence adduced at the hearing, considered in the light of all the circumstances, affords an insufficient basis upon which to sustain the allegation that the respondent dominated, interfered with, and contributed support to the Association. We shall accordingly dismiss the portions of the complaint so alleging. C. biter f erence, restraint, and coercion Starting in May 1937 and for several months thereafter there was considerable activity at the respondent's plant as a, result of the membership drives being conducted by both the Union and the Association. On or about May 5, just prior to the meeting of the former Plan representatives in the Calumet Park Field House referred to above, Harper talked to, a group of about 60 employees in the washroom immediately after his work. At least one foreman was in the room at the time. Harper announced that the poll he and his associates had conducted revealed that 98 per cent of the employees in his de- partment favored the C. I. O. and that he was going to join the Union and "cast his lot with them.""' Before Harper left the wash- room, however, Bench, superintendent of maintenance, and his imme- diate supervisor, came in and told him that Waggoner, the plant 'S See N. L R. B. v. McKesson & Robbins, Inc., etc., 8 L. R. R. 383, decided May 5, 1941, (App D C ) enforcing as modified Matter of McKesson & Robbins, Inc , etc. and Inter- national Longshoremen & Warehousemen's Union, Local No. 9, District 1, affiliated with the C I. 0., 19 N. L. R. B. 778. Shortly thereafter Harper did join the Union and was elected chairman. 4 501 22-4 2-vol 33-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager, wanted to see him before he went home. Bench did not, deny this testimony. Harper went to see Waggoner, who, according to Harper, inquired about the employees' sentiment since the Plan had been dissolved. Harper told him that he did not know about all departments but that his group favored the C. I. O. He testified that Waggoner .then discussed reports that C. I. O. leaders were communists and suggested that the plant employees who were not joining the C. I. O. needed a leader like Harper. Harper insisted that he would join the Union, and after further discussion he left. Harper further testified that in the early part of July 1937 Wag- goner said to him, referring to his union activities, that "he had two roads to choose from, the right and the left." Waggoner denied having made the statements attributed to him, and denied having spoken with Harper at all on the occasion in May referred to. The Trial Examiner, who saw and heard the witnesses, found that Wag- goner made the statements and we agree with this conclusion. On May 30 Harper was seriously injured near the plant of Republic Steel Corporation where a strike was in progress and Harry Eagle- ton acted as chairman of the Union in his stead. Eagleton testified that during June 1937, at a conference with Waggoner regarding the grievance of an employee member of the Union, he discussed the Republic Steel strike with Waggoner. Waggoner stated, according to Eagleton, that if the Republic Steel Corporation could not run its plant as it saw fit, it would close up, and that the Republic Steel Corporation would never sign a contract with the C. I. O. because it was "communistic, irresponsible and not incorporated." He sub- sequently added, Eagleton testified, "Why don't you use your head and break away from this communistic outfit?" and ". . . the Em- ployees Association will get you as far as the C. I. 0." Waggoner denied making the statements but on the basis of the Trial Exam- iner's impression of the witnesses; and on all the evidence we find that the colloquy occurred as above set forth. Gage Woods, an employee, testified that just before he was laid off in May 1938, Nicklaus, who was assistant superintendent of the Coke Oven Division" and had general supervision over all foremen, noticed-some union buttons on his cap. After examining these Nick- laus said, "Ah, watch your step." Although denied by Nicklaus, the Trial Examiner placed full credence in the testimony of Woods, recited above. We find that Nicklaus made the statement in question. Buchler, another employee, testified that in June 1937, when he ,was speaking with Kimbel, foreman of the oven department, about taking up a collection for Harper, who had been injured; Kimbel warned him not to be so active on behalf of the Union, stating, "Henry, don't have quite so much to say. I have known you INTERLAXIE IRON CORPORATION 629 for a long time. It will be better for you." Although Kimbel denied making the statements the Trial Examiner found that the statements had been made, and we agree with this finding. Buehler, also testified that shortly after he joined the Union on May 6, 1937, Schrock, the second-shift foreman,' came to him and, referring to his union button, said "What have you got that on there for? You are throwing your money away." Dreznes, an employee, testified that on an occasion when he was struck on the head by a sledge hammer Schrock remarked, "Well, you won't hurt his head so long as you don't hurt his buttons." Dreznes had been accus- tomed to wear his C. I. 0. button on his cap. Schrock denied making these statements, contending that although he saw many buttons on the men, he never paid any particular attention and did not know anyone's union affiliation. The Trial Examiner found Schrock's testimony not worthy of credence, and after considering the full record and the -demeanor of the witnesses on the stand, credited the testimony of Buehler and Dreznes. ' We find that the statements were made. Newsam, an employee, testified that Irving Buckner, a relief fore- man in the coke-handling department, came to him in August or September 1937 and told him that if he expected to get anywhere he would' have to join the Association, and that on Newsam's reply- ing that he -did not recognize the Association as a union, Buckner said "that's up to you but it may cost you something." Buckner denied making the statements. Sopcic, an employee who according to Newsam was present at the time, denied hearing it and testified, "I don't know nothing about that." Woods testified that in April 1938 Buckner told him, "the company wouldn't stand for any out- side union to come in and organize their employees," and that when, Woods asked Buckner if he was opposed to a union he was told by Buckner that if an attempt was made to organize the employees in the respondent's plant, the same thing would happen to them that happened at Republic Steel. Buckner further 'said, according to Woods, that he was a company man and as such he stood for the open shop. Buckner denied making these statements. The Trial Exam- iner who saw and heard the witnesses found Buckner's denials not convincing and fully credited the testimony of Newsam and Woods. We find that Buckner made each of the statements referred to in this paragraph. Glen Rose, an employee, testified that about December 30, 1938, Raybould, a foreman in the mechanical department, told him that he should take his C. I. 0. button off and "quit being so active in the C. I. 0.," adding, "You ought to know you are on the spot." Horton _ testified that shortly after the Board election Raybould advised 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him to take off his C. I. 0. button and throw it away, since it would no longer do him any good. Knezevich testified that in May 1938 Raybould suggested that he should change his union allegiance, say- ing, "Come over to us," and, "Could it come I sign you up?" He testified further "Well, I told him, I won't sign up with him, I keep the buttons on of this union I told him." Kesser, chairman of the ,union's grievance committee, testified that on an occasion in June, July, or August, 1937, when he was discussing a grievance with a fellow committeeman, Raybould came to them and told them to "break it up, that we knew we were on the spot for being in the C. I. 0., and we shouldn't be standing around talking about unions, that he would get himself in trouble." Raybould denied the fore- going testimony, but the Trial Examiner did not credit his denial. We find that Raybould made the statements testified to. Kure, an employee, testified that on about July 8, 1937, when Kure was exhorting his fellow workmen to wear their C. I. 0. buttons, Petrich, another foreman in the mechanical department, said, ".. . the buttons wouldn't do me no good," that Kure retorted that the Union would be effective in protecting the men against unjustified discharges, whereupon Petrich said that he could always find a reason to lay Kure off or discharge him. Petrich denied making these statements or ever saying anything to Kure about his buttons and Petrich was corroborated by several employees who, according to Kure, were present at the time. However, Zarek, a witness called by the respondent, while denying that Petrich made the particular remark attributed to him by Kure contradicted Petrich in part, stating that Petrich had said that it made no difference to him what buttons the men wore. Rose testified that Ferguson, the chief motor inspector, came to him the day after the Board election, asking "what ... [he] was wearing that button for" and declaring that the men ". . . had no more right to wear them buttons in the plant." Rose protested that they still had the right to maintain their organization and to bargain for their own members. Ferguson denied Rose's testimony. The Trial Examiner, after, considering the character of the testimony and the demeanor of the witnesses, found that the statements attributed to Petrich and Ferguson 'vere made as testified by the Board's witnesses, and we agree with his findings. Alex Kostuch, a laborer, testified, that Roberts, his immediate supervisor who was elected presid€nt of the Association early in July 1937, told him during 1937 that Waggoner had given the Asso- ciation a gavel and had promised further assistance, that on January 6, 1938, Roberts told him that if the Union won the election the plant would close, and that Waggoner had ordered that all employees be so informed. Although Roberts denied having made the statements, the Trial Examiner accepted Kostuch's testimony, and we agree with I nTRLAXE Moir OoRFo & ri of 631 his finding. The Trial Examiner also found, however, that Roberts was not a foreman or supervisor; and since there was no evidence showing that the respondent knew of or consented to Roberts' state- ments, that it was not responsible for them. The record shows that from December 1937 to April 1938 Roberts had charge of a job on which were employed, during his shift, five bricklayers, including himself, and their helpers. Kostuch testified,that Roberts did no bricklaying on that job but only showed the other bricklayers what to do. He also testified that Roberts signed his time card, a func- tion which the foremen customarily performed. Tiffen, the respond- ent's mason superintendent, testified that whenever he, Tiffen, left that job, he left a copy of the blueprints with Roberts and gave his instructions to Roberts specifically, since Roberts was the senior man. He further testified that the instructions were intended for all the bricklayers, but that he usually gave the instructions to Roberts be- fore the others, and that he expected Roberts to transmit them to the others if that was necessary. Tiffen admitted that if work is not done on a job, he holds the "senior man" responsible, and that when he himself was not present on the job Roberts might not have laid bricks all the time. The record also shows that Roberts super- vised several other bricklayers when a furnace was relined in 1934, and that he at all times had one or more helpers over whom he had supervisory authority. We think it clear that Roberts was a super- visory employee on January 6, 1938, when he stated that Waggoner threatened to close the plant if the union won the election. We therefore find that the respondent is responsible for that' statement.2° We find, however, as did the Trial Examiner, that Roberts' usual position was not that of a supervisor, but was that of a bricklayer with such limited supervisory authority as is commonly exercised by a skilled craftsman over his helpers and assistants, and that the respondent therefore was not responsible for the other statement above referred to. We find that by the statements of Waggoner, Nicklaus, Kimbel, Schrock, Buckner, Raybould, Petrich, Ferguson, and Roberts, set forth above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharges The complaint, as amended, alleged that 16 employees were laid off or discharged and refused reinstatement because they joined and assisted the Union. The respondent contends that they were laid 20 International Association of Machinists v. N. L. R. B. (Serrick Corp. ) 311 U. S. 72, affirming 110 F. (2d) 29 (App. D. C) enforcing Matter of The Serrick Corporation and Internat,onal Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621; rehearing denied 311 U. S. 729. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off along with a large number of other employees because of reduced operations, and that all the employees were laid off and reinstated in accordance with a fair and just system of rating employees. Con- siderable testimony was adduced at the hearing regarding the mechanics of the system and as to whether it might have been used as an instrument of discrimination. The respondent receives the bulk of its raw materials between April and November of each year, when navigation is open.on the river flowing through its property. Substantial personnel changes consequently take place each April and November in the departments which receive and store the raw materials. The merit-rating system was put into effect in October 1937 and the first semi-annual ratings were- made early in November 1937, only a short time prior to the first seasonal layoffs subsequent to the organization of the Union and the Association. The large majority of the respondent's fore- men were kept uninformed of the existence of the system until March 1938, and most of the ratings in November 1937 were therefore made by departmental superintendents who did not normally come into direct, contact with the persons they rated. The first time any non- supervisory employees were informed of the system was in about May 1938 when a committee of the Association was told that the system had been in effect for some time. So far as the record shows, no general announcement of the system was made to the employees until August 1, 1938, when the "Statement of Agreement" was posted. None of the employees named in the complaint heard of the system until after their lay-off. Witnesses called by the respondent testified that the merit-rating system operated as follows: Merit-rating records of all employees were prepared and maintained by the respondent, and employees were rated "excellent," "good," "fair," or "poor" on each of the following traits or qualifications : 1. Supervision required. 2. Cooperation. 3. Skill (quality of work). 4. Dependability. 5. Safety (cooperation, attitude, interest). 6. Industry. 7. Adaptability. 8. Deportment. The ratings were then scored as follows : Excellent, 5 points. Good, 4 points. INTERLAKE IRON CORPOR.ATPON 633 Fair, 3 points. - Poor, 2 points. The raters were provided with an, instruction sheet setting forth specific instructions and suggestions on what each rating as to each trait was to indicate.21 Each employee's scores on all the traits ivere then added to yield a total qualification score having a minimum of 16 and a maximum of 40. Each employee was also .given a service rating, computed as follows : Service up to 5 years___________________________________ 0 points Service of 5 to 8 years__________________________________ 1 point Service of 8 to 11 years_________________________________ 2 points Service of 11 to 13 years________________________________ 3 points Service of 13 to 15 years________________________________ 4 points Service of 15 to 17 years________________________________ 5 points Service of 17 to 19 years________________________________ 6 points Service of 19 to 20 years________________________________ 7 points Service of 20 years or over______________________________ 8 points The service score was then added to the qualification score to obtain the employee's final rating, which might be between 16 and 48. The descriptions of the system in evidence 22 stated that in the case of employees who were of special value to the respondent by virtue of versatility or skill in a number of classes of work, a factor was added to their rating on being transferred to lower classifications, thereby bringing such employees to higher standing in such lower classifica- tions. However, the witnesses who explained the operation of the system did not point out the manner in which this factor was added, and it does not appear to have been done in any cases considered at the hearing. On the other hand, Waggoner testified that a certain unique and complicated job-evaluation factor was added to each em- ployee's rating, although it was not mentioned in the descriptions of the system. The rating on qualifications was to be prepared and passed upon each 6-month period by not less than two supervisors with intimate knowledge of the qualifications of each worker. When a lay-off was necessary the respondent, having previously arranged all employees in an occupational unit from which the lay-off was 21 The following are examples of the instructions : Under "Cooperation," "excellent" is defined as, "Understands and follows the rules of team play . Offers helpful suggestions. Goes more than half way. Volunteers" ; "good" Is defined as, "Cooperates on the jobs he likes. Plays hard if he can carry the ball. Keeps up his end" ; "fair" is defined as "Shirks the hard and unpleasant task. Has to be drafted. Must be told to take care of his half" ; and "poor " is defined as, "Is inclined to hang back." Under "Skill (quality of work )" "excellent" is defined as, "consistently does an excellent job without waste of time, effort or material" ; "good" is defined as, "Does excellent work within his capacity. Given enough time will do a good job" ; "fair" Is defined as , "Does good work most of the time. Could improve" ; and "poor" is defined as, "Does indifferent work." m Board's Exhibits Nos. 9 and 18 , and Respondent's Exhibit No. 83. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be made in the order of descending final ratings, furloughed the required number from the bottom of the array. 23 In case of a tie the person with less seniority was laid off. In some cases the occu- pational unit was' a single job. In other cases it was a fixed, pre- determined group of jobs within a department, the holders of which customarily knew other jobs within the group. Thus, in the by- products department, carloaders and apparatus men were placed within a single group or occupational unit. If, for example, the respondent had in its employ at a given time the number of car- loaders it needed but had one apparatus man more than it needed, and therefore decided to lay off a man, it would lay off one of the carloaders if his rating was lower than that of the lowest apparatus man. The remaining employees would then be trans- ferred about within the unit to the extent necessary, and the proper number of men assigned to each job. The system of lay-offs was modified when the Furnace Plant shut down, a frequent occur- rence. In order to keep in its employ a nucleus of capable employees familiar with the operations of its Furnace Plant, the respondent would transfer a number of Furnace Plant employees, selected accord- ing to the merit-rating system, to the Coke Oven Plant, where, ir- respective of the rating system and similarity of jobs, they displaced the lowest rated employees on jobs which the employees being transferred were capable of filling. The foremen and supervisors making the ratings revealed through their testimony their inability to rate employees expertly. With few exceptions, the supervisory employees who were required to rate em- ployees were, while on the witness stand, unable to define accurately the eight qualifications on which ratings were made or to distinguish between some of them. Because of some similarity and overlapping among the various eight qualifications named, it is apparent that the raters allowed their general judgment of the employees to influence them in their ratings as to specific qualifications. It is clear from the evidence that notwithstanding the written instructions issued by the respondent to the raters, their lack of experience or of understanding must have resulted in considerable haphazard rating. Moreover, until May 1938 no employees were aware that they were being rated and at no time were they informed of their rating or relative standing,except upon request. They were not given the opportunity to appeal from 23 According to the testimony , whenever a lay-off was necessary, the respondent pre- pared charts having a symbol for each employee in each job classification and occupa- tional unit and stating his final rating. The symbols were all identical , and no names appeared on the charts . The department heads selected the employees to be laid off by checking the symbols representing them on the charts. Each employee's employment- record card already set forth his rating and relative position in his job classification, and the personnel department was thus able readily to find the name of each employee whose symbol had been checked on the chart. INTERLAKE IRON. CORPORATION 635 their ratings if they believed that they were based upon personal bias or discrimination'24 despite the obvious fact that the rating pro- cedure offered opportunity for discriminatory treatment. There is no evidence that the employees were informed at any time prior to the hearing what the occupational unit was on the basis of which the respondent made selections for lay-offs . The respondent made no systematic attempt, on the basis of the ratings, to correct low efficiency by conference or instruction. We shall consider whether or not a study of the ratings as a whole warrants a finding that the respondent used the system in order to• discriminate in favor of members of the Association and against mem- bers and officers of the Union. Dr. J., E. Walters, Director of Per- sonnel, Schools of Engineering and Professor of Administration at Purdue University, testified that certain tests which , according to him, would have revealed discrimination "to any extent," had been carried out under his supervision on the ratings of November 1937 and April 1938, and that they indicated the reliability of the respond- ent's merit-rating system . Walters' tests were in part inapplicable to the respondent's merit-rating system. It is clear, also, that to the extent that they were applicable, they were designed to show the operation of the system among the employees as a whole, and,could not have revealed the presence of discrimination in the relatively few cases presented by the complaint . Walters' testimony has failed to convince us, nor did it convince the Trial Examiner, of the prob- ability that discrimination was absent in the application of the rating system. The curtailment of the respondent 's operations commenced early in November 1937 and continued until the end of November 1938, with a resulting lay-off of employees during each month and aggregating approximately 400 persons laid off during the 1 -year period. With two exceptions not here material , no new employees were hired during this period. Seven of the employees named in the complaint were laid off in November 1937 and the other nine in May and June 1938. It is not possible to compare the percentage of union members in the plant with the percentage of union members among those laid off, since no list of union members is in evidence .25 A list of Association members is, however, in evidence. In view of the rivalry between the two organizations a considerable difference between the effect of the lay-off system upon Association members and its effect upon others might, in the absence of explanation , indicate discrimination in appli- 24 Walters, the respondent's expert witness, admitted that a, good rating system should provide for information to the individual employee as to his grade and the right to appeal. u See Matter of F. W. Woolworth Company et at. and United Wholesale if Warehouse Employees of New York, Local #65, United Retail if Wholesale Employees of America, 0 1 0, 25 N L R B 1362 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cation of the rating system. The record shows that of the 922 em- ployees in November 1937, 513, or 55 per cent, were members of the Association, while of the 170 persons laid off in November and Decem- ber 1937, only 68, or 38 per cent, were members of the Association. During the period from November 1, 1937, to June 30, 1938, about 383 persons were laid off, of whom 201, or 52 per cent were members of the Association. Of the 47 employees who joined the Association during the first 3 days on which it received applications, only 7 were laid off, and all but 2 of the 7 were subsequently rehired. The record also shows that while very few officers, representatives, and committee- men of the Association were laid off, and most of those were subse- quently rehired, three officers of the Union, two members of its grievance committee, and a number of its stewards, were laid off and never rehired. In the light of all the evidence in the case, however, we do not believe that the foregoing facts are sufficient to establish that the rating system was operated in a generally discriminatory manner throughout the plant. The question remains, however, of whether the respondent used the merit-rating system for discriminatory purposes in individual cases. The record shows that the respondent, even after the constitutionality of the Act had been upheld by the Supreme Court, actively interfered in the employees' self-organization by opposing the Union. Under these circumstances the secret inauguration of the rating system just prior to a general lay-off and at a time when both the Union and the Association were actively organizing employees in the plant, the use of raters who did not come into direct contact with the persons they rated, and the failure, discussed above, to inform the employees fully as to the system or otherwise to administer the system along fair and equitable lines, suggest the likelihood that the system was so used. In addition, through the system of inter- and intra-departmental transfers and the job-evaluation ratings used in conjunction with the merit- rating system, the respondent's lay-off policy became so complicated that any discrimination practiced would have been extremely difficult to detect. It was therefore incumbent upon the respondent to show that the lay-off of the union officers and members named in the com- plaint was not made on a discriminatory basis. The merit ratings of the employees obviously are not conclusive, in view of the established anti-union bias of the respondent and, especially, of several super- visors who made the ratings. Since the factual basis upon which the various ratings were made was a matter exclusively in the knowledge of the respondent, the burden was upon it to show that each employee, including those retained in preference to the laid-off employees, merited the rating which he received.'-'a ' Montgomery Ward & Co. v. N. L. R. B ., 107 F. (2d) 555 (C. C. A. 7)', enforcing, as modified, Matter of Montgomery Ward & Company and Reuben Lntzenberger, et al., rNTEiRLAXE IRON CORPORATION 637 We shall now consider each of the cases of alleged discrimination separately. Peter Cipich. Cipich was first employed by the respondent on Sep- tember 13, 1928, and worked in various occupations until November 26, 1937, the date of his lay-off. He joined the Union on May 24, 1937, and wore his button in the plant. In November 1937 Cipich was rated as a wharf feeder and relief man, receiving a total of 28 points, which included 2 points for his service seniority. His relative standing was 5th in a group of 7 wharf feeders and 13th. in a group of 16 employees in his occupational unit, which consisted of wharf feeders, bin tenders, foundry loader helpers, and foundry pickers. The three employees in his occupational unit with lower relative standings were laid off before Cipich.' The respondent produced approximately 65,000 tons of coke in October 1937, 51,000 in November, 51,000 in December, 54,000 in Jan- uary 1938, 46,000 in February, 46,000 in March, 44,000 in April, 39,000 in May, 45,000 in June, 34,000 in July, 34,000 in August, 40,000 in Sep- tember, 39,000 in October, 37,000 in November, and 47,000 in December. The number of employees in the entire coke-handling department was 55 at the beginning of November 1937. The total force in the depart- ment increased to 66 on November 4 and remained at approximately that figure until November 16, when it decreased to 56. The total force increased to 61 on November 26, the day Cipich was laid off, and then dropped somewhat, and the month ended with this department having a total force of 58 employees. The number of cleaners was 25 at the beginning of November and 32 on November 30. In the intervening period the fluctuation in the number of cleaners roughly paralleled that in the department as a whole. Between November 1 and 30 the number of wharf feeders dropped, with no intervening increase, from 7 to 4,, and the number of foundry pickers dropped from 2 to 1, thus causing the number of employees in Cipich's occupational unit to drop from 16 to 12. The number of persons employed on all the other jobs in the department remained fixed at 21 throughout the month?e Each oven load of coke produced by the respondent is dumped on the coke wharves within a few minutes after being pushed-from the coke oven. The wharf feeders are stationed on the coke wharves and they open gates which allow the coke to slide down from the wharves 9 N. L. R. B. 538; The Triplex Screw Company v. N. L. R. B. decided March 14, 1941, (C. C A 6), 8 L. R. R. 136, enforcing, as modified , Matter of The Triplex Screw Company and Amalgamated Asaociataon of Iron, Steel and Tan Workers of North America, Local No. 1538, 25 N. L R B 1126; Matter of Wilson & Co, Inc. and United Cannery, Agri cultu,al, packing d Allied Workers of America, Local No. 216, 26 N L. R B 273; Mattes of Phelps Dodge Corporation and Metal Trade Council of Ago, Arizona, 32 N L it. B 338. 26 The other jobs were foundry loader helpers and bin tenders , which were in Cipich's occupational unit, and bridge operators , domestic loaders , foundry loaders , and furnace loaders 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to conveyor belts, regulating the feed according to signals. They also clean up spillage and coke dust clinging to the conveyor belts, an operation as extensive as that of regulating the movement of the coke. The conveyor belts take the coke to screens. The coke is then either loaded on cars for shipment or placed in storage. It thus appears that the number of wharf feeders required ordinarily would vary directly with the amount of coke produced and the total number of employees engaged in handling coke. With Cipich's lay-off, however, the number of wharf feeders remaining was only four, and the record shows that employment of only four wharf feeders to handle the vol- ume of coke being produced at that time was unusual.27 Moreover, on November 26 eight employees, and on November 30 a ninth em- ployee, from other departments of the Coke Oven Division were trans- ferred into the coke-handling department as cleaners.28 Cipich was one of eight employees laid off from the department between November 24 and 27, the others being another wharf feeder, foundry picker Newsam, whose case is discussed below, and five cleaners. Since the number of cleaners in the department increased from 25 to 32 during November and since cleaning constitutes as large a part of the wharf feeder's duties as does feeding coke, it would appear that the respond- ent assigned cleaners, and possibly some other employees, to do part of the work ordinarily done by the wharf feeders. The record shows that no material financial saving was involved in the change.29 As shown below, in our discussion of Bulich's lay-off, the transfers and lay-offs of cleaners during the month resulted in a substantial increase in the proportion of Association members among the cleaners. In- asmuch as Cipich was not laid off because the respondent required fewer wharf feeders or other employees in his occupational unit, we find that he was not laid off in accordance with the respondent's usual lay-off policy. 27 As stated above the respondent produced about 51,000 tons of coke in November 1937, and production remained at about that figure in December . The following are the number of wharf feeders employed during several months in 1938, the figures for which have been obtained from a study of the respondent's employment records in evidence , the number in parentheses after each month indicating the approximate number of tons of coke pro- duced by the respondent during that month: June ( 45,000 ) 6 to 9, the average being 7; July ( 34,000 ) 6; August (40,000 ) 6; September ( 39,000 ) 6, except for the last 3 days, when it was 5 ; October ( 37,000 ) 5 ; November ( 37,000 ) 8 for 21 days and 9 for the last 9 days. The ratio of the number of employees in the entire department to the number of wharf feeders was 14 5 at the end of November 1937 , whereas during the months just mentioned it varied from 6 to 9 .83, except for the period between September 28 and October 29, 1938, when it was between 10 4 and 11 6. 28 Although two of the nine had been transferred from the Furnace Plant to such other department on November 4, apparently in connection with the closing of one of'the fur- naces, it is clear that their transfer into the coke -handling department was not for the purpose of keeping a nucleus of employees for the Furnace Plant, since they were laborers. 2e Wharf feeders and car cleaners were paid 65 cents an hour ; building cleaners 64 cents an hour ; yard cleaners and laborers 62% cents an hour. Moreover, from June to November 1938 when the monthly production of coke was at all times, considerably less than in November and December 1937 , the respondent employed from five to nine wharf feeders. ( See footnote 27, above.) INTERLAKE IRON CORPORATION 639 The rating on the basis of which the respondent contends that Cipich was laid off was made by Nicklaus. The respondent failed to show that Cipich was a less efficient or less valuable employee than the em- ployees in his occupational unit who received higher ratings. As we have found in Subsection C, above, Nicklaus, when he noticed Gage Woods' union buttons, warned him to be careful. In view of the respondent's and Nicklaus' attitude towards the labor organization of which Cipich was known to be a member, the manner, discussed above, in which the rating system was introduced and operated, and of Cipich's long service with respondent, we are of the opinion that Cipich's rating did not indicate his true position with respect to the other employees in his occupational unit. • We find that the respondent laid off and thereafter failed to reinstate Cipich because of his union membership and activity. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Peter Cipich and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Newsaan. Newsam 30 was first employed by the respondent on December 5, 1925, as a conveyor man. At the time of his lay-off on November 24, 1937, he was employed as a foundry picker in the coke- handling department. He was transferred approximately 26 times during the course of his employment and worked in a number of capacities. He applied for membership in the Union in May 1937, wore his union button in the plant, and was active in soliciting em- ployees to join the Union. As found above, Irving Buckner, a relief foreman in the coke-handling department, told Newsam in August or September 1937 that he would have to join the Association and, on Newsam's replying that he did not recognize the Association as a union, said "That's up to you, but it may cost you something." Newsam did not join the Association. • In November 1937 Newsam received a qualification rating of 23 points, plus 3 points for length of service. He was second in a group of two foundry pickers and 15th in a group of 16 employees in his occupational unit, which consisted of foundry pickers, bin tenders, wharf feeders, and foundry-loader helpers. The total force in the coke-handling department rose from 57 on November 24, the day of Newsam's lay-off, to 58 on November 30. As indicated above in the discussion of Cipich's case, Newsam, Cipich, and the six other em- ployees who were laid off at about that time were in effect replaced by nine men who were transferred into the department on November 26 and 30 from other departments of the Coke Oven Plant. Five of the ° Newsam was also referred to in the record as Bert Newsam. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nine were Association members. Although no, employee classified as a foundry picker replaced Newsam immediately, it is clear from the evidence that his work of foundry picking continued to be done by employees classified as relief men. Beginning in February 1938, more- over, additional men were made foundry pickers, and from June to November 1938, although each month's production of coke was sub- stantially less than that of November or December 1937, at least three foundry pickers were employed at all times. Inasmuch as Newsam's iay-off was not caused by the need for fewer foundry pickers, or other employees in his occupational unit, we find that he was not laid off m accordance with the respondent's usual lay-off policy. The respondent made no showing that Newsam was less efficient or was otherwise less valuable to it than the employees in his occupa- tional unit who were retained because of their higher ratings. Newsam was rated by Nicklaus, whose hostility to the Union has'already been mentioned. In view of his outstanding union activity as a solicitor for members, and of Buckner's warning to him, which he did not heed, and of his long service with respondent, we are convinced that his rating did not properly reflect his true relative standing in his occupational unit. Under these circumstances, we find that the respondent laid off and thereafter failed to reinstate Newsam because of his union membership and activity. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Henry Newsam, and that the respondent has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Paul Bulich. Bulich worked as a building cleaner in the coke- handling department from March 6, 1937, the date he was hired, until his lay-off on November 15, 1937. He had previously had intermittent employment with the respondent but had acquired no service sen- iority. He was a member of the Gas Workers Union in 1934 and joined the Union in April 1937. He wore his union button in the plant and spoke to a number of employees about the Union. In November 1937 Bulich's merit rating totaled 29 points and his relative standing was 26th in a group of 35 cleaners, which was his occupational unit. When he was laid off on November 15, the respondent retained three cleaners whose ratings were less than his, namely, James Felice, Emilio Fontana, and Steve Cvetkovich. The first two were Association members. All had been transferred from the Furnace Plant during November, but since they were laid off on November 26 and 27, it is clear that they had not been transferred for the purpose of preserving a nucleus for the Furnace Plant, and we so find. We do not agree with the Trial Examiner's finding that INTERLAXR IRON OORPORATION 641 the retention of Fontana and Cvetkovich constituted mere "minor violations of the respondent's lay-off policy" in no way affecting Bulich or causing his lay-off. If on November 15 Bulich had been kept instead of Fontana, Cvetkovich, and Felice, he would still have been employed on November 26, when the respondent transferred eight additional employees into the coke-handling department as cleaners, and he would have been entitled to be retained thereafter. While the evidence shows that at times, because of temporary absence from the plant or for some other special reason, employees were retained for several days after others with higher ratings had been laid off, no explanation was offered for not following the rating system in Bulich's case. Since the number of cleaners increased from 25 to 32 during November and was at all times greater than 25, the question also arises of whether it was necessary to lay off any cleaners at all. Of the 22 employees brought into the department and made cleaners during November, 15 were transferred from the Furnace Plant. However, 8 of the 15 had been employed there as common laborers, and 3 of the remaining 7 were laid off before the end of the month. It thus appears, and we find, that in accordance with the respondent's usual method of selecting employees for lay-off, employees from the Furnace Plant would not have displaced more than four cleaners, a number considerably less than the number of cleaners with ratings lower than Bulich's. The proportion of Association members among the cleaners changed significantly during the month as a result of the various transfers and lay-offs. On November 1, when 25 cleaners were in the department, 8, or 32 per cent, were members of the Asso- ciation. On November 30, when 32 cleaners were in the department, 15, or 47 percent, were members of the Association. We find that Bulich's lay-off was not in accordance with the respondent's usual procedure. No showing was made at the hearing that Bulich's efficiency was less than that of the cleaners who were retained at the time of his lay-off.31 Having joined the Gas Workers Union when the respond- ent was sponsoring its rival, the company-dominated Plan, and hav- ing then joined and assisted the' Union, to which the respondent was hostile, Bulich stood out as an employee who was persistent in going counter to the respondent's manifested wishes as to organization of its employees. Since he was rated by Nicklaus, who was hostile to the Union, we find, under all the circumstances, that his rating did not reflect his true relative standing in his occupational unit. We find that the respondent laid off and thereafter failed to re- employ Bulich because of his union membership and activity- 81 Buckner, one of Bulich's foremen, testified that Bulich was unable to do the job of bin feeder, and Foreman Hardtke testified that Bulich complained to him about dust on the job, even after Haidtke had explained to him how to avoid it It does not appear, ho\Never, that Bulich's wwoik on his own job was unsatisfactory 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has discouraged membership in the Union by discrimination in regard- to the hire and tenure of employ- ment of Paul Bulich, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Gage, Woods. Woods was employed by the respondent on August 22'. 1933, having previously worked for the -respondent for a brief period during 1929. He was laid off on November 12, 1934, and was rehired in January 1935, after which he, worked continuously until his lay-off on June 6, 1938. He joined the Union in April 1937 and was an active member of the grievance committee. As found above, Irving Buckner, a relief foreman in Woods' department, told him that ,the respondent would not stand for an outside union organizing its employees, that if an attempt was made to organize them the same' -thing would happen as had happened at Republic Steel, and that he, Buckner, was a "company man" and as such stood for the open shop. As we have further found above, Assistant Superin- tendent Nicklaus, on seeing union buttons on Woods' cap, admonished him to be careful. In November 1937 Woods was rated third in a group of seven wharf feeders. The three wharf feeders with the lowest ratings, including Cipich, were laid off, but their jobs were soon filled by transfer so that in April 1938 eight wharf 'feeders were employed. In April 1938 Woods' rating, which had been 32 points the previous November, fell to 28 points. He was then 7th in the group of 8 wharf feeders and 18th in a group of 19 employees in his occupational unit, which included wharf feeders, bin tenders, foundry-loader helpers, and foundry pickers. Sicich, a wharf feeder with a lower rating than Woods, was retained for 11 days after Woods was laid off, a clear violation of the respondent's lay-off policy. Sicich was a member of the Association. The record shows that Irving Buckner and Nicklaus participated in Woods' rating in April 1938, and that they were hostile to the Union. None of the respondent's supervisory officials who testified made any comparison of Woods' qualifications with those of the em- ployees in his occupational unit who were retained, and no showing was made that Woods was a less efficient employee than they. As an active member of the Union's grievance committee, Woods was one of the most prominent members of the Union. In view of this fact, and of Nicklaus' and Buckner's expressed hostility to the Union, we find that Woods' rating -did not reflect correctly his relative standing among the employees in his occupational unit. We are convinced, as was the Trial Examiner, that Woods was laid off and thereafter not reinstated because of his union membership and activity, and we so find. INTERLAKE IRON CORPORATION 643 We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Gage Woods, and that the respondent has thereby interfered with, restrained, and ' coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry Buehler. Buehler was first employed by the respondent in 1919 but quit in ' 1921. He was reemployed on December 19, 1924, and worked in various occupations until his lay-off on June 4, 1938. He joined the Union on May 6, 1937, served as grievance representa- tive for the oven department and was on the committee which called on Waggoner and requested recognition of the Union as bargaining agent. As found above, one of Buehler's foremen, Schrock, in about May 1937, told Buehler that he was wasting money by being a member of the Union, and,Foreman Kimbel warned him not to be so active for the Union. In November 1937 Buehler was rated as a quench-car operator in the oven department and received a rating of 32 points, including 3 points for length of service. In April 1938 his rating dropped to 27 points, including his service credit. His relative standing was then last in a group of 6 quench-car operators and 52nd in a group of 57 employees in his occupational unit, which also included larry- men, door-machine men, lidmen, lutermen, and door cleaners. Be- tween the April 1938 rating and Buehler's lay-off on June 4, three employees in his occupational unit had been transferred to the cate- gory of oven cleaners and six had been laid off. Five other employees had come into the occupational unit, including four from the Furnace Division and one Brinzie from the mason department. Brinzie, a member of the Association, was made a door cleaner on June 4. On the day of his lay-off Buehler was 53rd of the 53 employees then in his occupational unit. In view of Brinzie's transfer to the unit on that day, however, Buehler's lay-off was unwarranted under the respondent's lay-off system. A schedule is maintained by the respondent to fix definite times for the coke to be pushed from each oven, and the respondent con- tended that Buehler frequently caused coke to be pushed from the ovens ahead of schedule., The record shows, however, that the sched- ule was often departed from, in order to permit employees to attend safety meetings, to allow repairs to be made, or for other reasons, and we find, as did the Trial Examiner, that on the occasions when Buehler departed from the schedule it was pursuant to the instruc- tions of his foremen. Buehler admitted that he was admonished a number of times not to be wasteful of the clay used to seal up the ovens, and that once, when he was in a different occupational unit, his failure properly -to perform a certain operation caused an ex- 45012 2-4 2-v o1 33 ---4 2 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .plosion. However, the respondent failed to establish that Buehler was less efficient or valuable an employee than the employees in his occupational unit who received higher ratings. In view of this fact, his long service with the respondent, his prominence as a member of the Union's grievance committee and of the committee which requested recognition of the Union and the fact that Schrock and Kimbel, who were hostile to the Union, participated in his rating, we find that Buehler's rating was made lower than was warranted by the character of his work. We find, as did the Trial Examiner, that Buehler was laid off and thereafter not reemployed because of his union membership and activity. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Henry Buehler, and that the respondent has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ray Beckley. Beckley was first employed by the respondent in 1925, but because of lay-offs his seniority was based upon his rehiring on January 13,1934. His final lay-off was on May 2, 1938. During his employment by the respondent he worked as a bin operator, laborer, cleaner, oiler, trestleman, conveyorman, larryman, and lidman. He joined the Association in May 1937 and was an unsuccessful candidate for vice president in the first election. He left the Association and in September 1937 joined the Union. He solicited members and shortly after his lay-off became corresponding secretary. In November 1937 Beckley was rated as a relief man and larryman in the oven department and received ,a total of 35 points, which gave him a relative standing of 9th among-the 12 employees in the group of larrymen. At about the end of November he was made a lidman. In April 1938 Beckley was rated as a lidman and received 24 points, which made him 12th among the 12 lidmen rated, and 55th of the_ 57 employees in his occupational unit, which included lidmen, larry- men, door-machine men, quench-car men, lutermen, and door cleaners. The persons in the occupational unit rated lower than Beckley were laid off before he was or at about the same time. When Beckley was laid off on May 2, 1938, he was informed by his foreman that it was in order to make room for men to be transferred from the Furnace Plant, but no such transfers were made until June 1, a month later. Kimbel, whose hostility to the Union was discussed above, participated in making Beckley's April rating. The respondent did not show that Beckley's efficiency was less than that of the employees in his occupational unit who, having received higher efficiency ratings, were retained when he was laid off. Beckley's membership in the Union and his exerting his influence to get other employees to join, were unusually important because of his prominence as former can- INTE(ItLAKE IRON CORPORATION 645 didate for vice president of the Association. We find that because of his union affiliation and activity Beckley was given a rating which did not properly reflect his true relative position in his occupational unit. We also find that Beckley was laid off and thereafter not reinstated because of his membership and activity in the Union, and because he left the Association. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Ray Beckley, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the, rights guaranteed in Section 7 of the Act. Glen Rose. Rose worked for the respondent as motor inspector for over 9 years prior to his lay-off on June 2, 1938. He joined the Union on April 29, 1937, and, as one of the original organizers, was very active soliciting memberships. Numerous employees joined the Union as the result of his efforts. He served as chief steward and as steward for his department, wearing a large badge identifying his position. At the time of the hearing he was president of the Union. As we have found in subsection C above, Rose on several occasions was warned by supervisors of the respondent about his union activi- ties. Foreman Raybould advised him` not to be so active in the Union, and Ferguson, the chief motor inspector, told him after the Board election that the employees no longer had a right to wear union but- tons in the plant. In about May or June 1937, while the organi- zational campaigns were still under way, Rose used the typewriter in Superintendent Bench's office without authority. He was severely reprimanded and accused of having broken into the office to get the typewriter. The evidence is clear that Rose did not break into the office but that the door had been left open. The respondent's wit- nesses admitted that there were no signs of the door having been forced, and that the glass was unbroken; and no claim was made that Rose had a key. Several witnesses testified that the door was frequently left unlocked or ajar. We are convinced that in taking the unusual steps that they did, the respondent's officials were seeking to impress Rose and other employees with the fact that the respondent was eager to seize upon a pretext to discipline Rose, as well as other 11 active union members. Rose received a rating of 23 points in November 1937, and 31 points in April 1938. Both grades included two points for service. His relative standing in April 1938 was seventh in a group of eight em- ployees in his occupational unit, which consisted only of the motor inspectors in the mechanical department of the Coke Oven Plant. The record does not show that Rose was a less efficient employee than' the motor inspectors in his department who were retained. On the 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other hand, the record shows that as chief steward, one of the original organizers and one of the most active and successful solicitors for the Union, Rose was among its most valuable members. The record shows that he received several warnings from the respondent to cease his activities. In view of these circumstances and of the fact that he was rated by Ferguson, who was hostile to the Union, and of the further fact that he had been kept in the respondent's employ for more than 9 years, we do not think the rating properly reflected Rose's relative efficiency. We are convinced, as was the Trial Ex- aminer that Rose was laid off and thereafter not reemployed because of his union activities and membership, and we so find. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of employ- ment of Glen Rose, and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Eli Knezevich. Knezevich worked as an oiler, a tractor operator, and a conveyor man in the coal-handling department, from about - March 1934 until his lay-off on June 17, 1938. He joined the Union on April 29, 1937, and was thereafter active in the organization, serving as steward and outside guard, wearing his union buttons and other insignia in the plant, and distributing application cards to persons who requested them. As we have found above, Foreman Raybould, in May 1938, unsuccessfully sought to induce Knezevich to shift his allegiance from the Union to the Association. In November 1937 Knezevich was rated as a tractor operator in the coal-handling department, receiving a total of 33 points. Sub- sequently he was transferred to the job of conveyor man. In April 1938 Knezevich was rated as a conveyor man, receiving 25 points. His relative standing was 10th in his occupational unit, consisting of 11 conveyor men and tractor operators. On April 11, 1938, he' was again made a tractor operator, and on June 17 he was laid off. It was common for men to te transferred between the jobs 'of con- veyor man and tractor operator. No employees were rated as tractor operators in April 1938. On June 18 and 19, the 2 days following Knezevich's lay-off, Jones, Barrett, and Radosevich were transferred to Knezevich's occupational unit. Jones had been a water tender in the furnace department, Barrett had been a laborer in the furnace department, and Radosevich had been a bridge oiler in Knezevich's department. While the transfer of Jones may be justified as carrying out the respondent's policy of preserving a nucleus of Furnace Plant employees, that of Barrett cannot be so justified, since he was only a laborer.32 Barrett was a member of the Association. The record 32 Barrett was laid o8 on July 13, 1938, rehired in another department on September 27, 1938, and then again laid off on November 26, 1938. INTERLAKE FRiON CORPORA'IP'IiON 647 also shows that while Radosevich, who was a bridge oiler in Kneze- vich's department, had a substantially better rating than Knezevich, it was unnecessary to transfer him to Knezevich's occupational unit, since according to his relative standing he would not have been laid off if he had remained on his former job .33 The record contains testimony by supervisors of Knezevich to the effect that he violated good safety practice by wearing leggings in need of repair, did not pack coal properly, was not sufficiently diligent in getting his tractor repaired when it broke down, and did not properly take care of his conveyor belts, thus delaying the operation of other belts. 'However, employees who relieved Knezevich when he operated a tractor testified that they found the coal piles on which Knezevich had been working in good condition when they relieved him.. One of the employees also testified that he worked on the conveyor belts at the same time as Knezevich, about 100 feet away from him, and that he knew of no case where the operation of the belts was delayed by Knezevich. As to his leggings, Knezevich explained that the respondent failed to replace or repair them when necessary and failed to furnish tools with which he could have repaired them. Knezevich also adequately explained the occasions when his tractor was allegedly idle. It ap- peared that the tractor he worked with had been rebuilt and that it had frequent breakdowns. The respondent failed to establish that Knezevich, as compared with the other employees in his occupational unit, was a less efficient employee. In view of the fact that he was an officer of and an active solicitor for the Union, and resisted Ray- bould's efforts to induce him to shift his allegiance to the Association, and in the light of all the circumstances, we find that Knezevich's rating did not properly indicate his efficiency in comparison with that of the other employees in his occupational unit. We find, as did the Trial Examiner, that Knezevich was laid off and thereafter not reemployed because of his union membership and activities. We find that the respondent has discouraged membership in the Union by discrimination in regard to the hire and tenure of em- ployment of Eli Knezevich, and that the respondent has thereby interfered with, 'restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Emil Ulaszek. Ulaszek was employed in the yard-coal department of the Coke Oven Division as a yard cleaner and breakerman for about 16 months prior to his lay-off on November 6, 1937. He joined the Union on May 12, 1937, and wore his union button while at work, as did many of his fellow employees. His activity was limited to attending a few union meetings and to a few occasions when lie discussed the merits of the Union with other employees. 23 Transfers within a department were freely made by the department heads 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the November 1937 rating Ulaszek, with 26 points, was 3rd in the group of 3 breakermen in the yard-coal department, and 13th in the group of 13 employees in his occupational unit, which con- sisted of breakermen, pulverizers, mixermen, mixer-bin men, charg- ing-bin men, and Point R men. The working force in the yard-coal department decreased from 25 at the beginning of November 1937, to 20 on November 30. The number of employees in Ulaszek's occu- pational unit decreased during that period from 13 to 12. The evidence does not establish that Ulaszek was singled out for a low rating because of his union activity and -thus discriminated against. Upon all the evidence we find as did the Trial Examiner, that TJlaszek was not laid off as a result of any discrimination because he joined and assisted the Union, and we shall dismiss the complaint a s to him. Clarence Cristy. Cristy had been employed as an oiler in the ore- dock department of the Blast Furnace, Division for about 9 months prior to his lay-off on November 14, 1937. He signed an application card for membership in the Union on May 29, 1937, and served as steward for his department, wearing a large button which identified him as such. At the time of his lay-off Cristy asked Richard Oliver,, his foreman, why he was laid off. Oliver stated that since his work was satisfactory, he would be recalled when an oiler was again needed, but that he was being laid off because the season for receiv- ing ore was over and a curtailment of operations necessitated a reduction in force. Cristy testified that three men with less seniority were still work- ing at the time he was laid off. However, the evidence reveals that they were soon laid off and that they were laborers, not oilers. Of the 5 men in his 'occupational group Cristy was rated 3rd with a total of 34 points, while each of the 2 men ahead of him had 36 points. On November 14, 1937, Cristy and the employee who was rated fourth were laid off and the next day the man who was rated fifth in the group was laid off. Of the two men rated ahead of Cristy the one who was second was kept until June 28, 1938, and then laid off due to the continued reduction in force. The man who was rated first in the group was transferred in June 1938 to a laborer's job in the mason department for 3 months, after which he returned to the ore dock as an oiler. The respondent did not violate its own' rating system through the lay-offs in the oiler occupational group. While it is true that Cristy was an active union member, the record affords an insufficient basis on which to sustain the allegation that he was discriminatorily laid off, and we shall dismiss the complaint with respect to his lay-off. INTERLAKE IRON CORPORAPION 649 Anton Kure. Kure had been employed by the respondent as a rigger for about 18 months prior to his lay-off on November 15, 1937. He joined the Union on April 29, 1937. Practically all the riggers were members of the Union. Kure wore his union button while at work and frequently encouraged his fellow employees to do likewise. As found above, Casper Petrich, his foreman, told Kure that his union button would do him no good, and that he could always find a reason to lay off or discharge Kure. Kure contended that after he joined the Union he was given dangerous jobs to do alone and was sent aloft to do rigging without the assistance of a helper, but the evidence does not establish this contention. Kure received a rating of 26 points in November and his relative standing was eighth in the group of eight riggers which constituted his occupational unit. Victor Johnson, another rigger, was rated with 26 points but, having greater seniority, stood seventh in the group. The records in evidence indicate that Kure was not replaced by transfer. We find, that Kure was not discriminatorily rated or laid off, and shall therefore order that the complaint be dismissed as to him. John Nazy. Nazy was first employed on June 12, 1926, as a machin- ist's handyman in the mechanical department of the Coke Oven Divi- sion. He was later transferred to the mechanical department of the Blast Furnace Division, where he likewise worked as a machinist's handyman. He joined the Union in May 1937. His chief complaint is that he was not given the job of janitor in his department instead of being laid off on November 15, 1937. In November 1937 Nazy was rated with 29 points and his relative standing was first in a group of two machinist's handymen. On No- vember,l, 1937, he was told that he was due for fay-off, but was trans- ferred to a job as blacksmith's helper, where he was 2nd in a group of 2, as the other blacksmith's helper had a rating of 31 points. He was laid off 2 weeks later. Edward Muszynski, the other machinist's han- dyman, had a rating of only 24 points, but he quit his job on November 6,1937, before Nazy was laid off. No persons were subsequently trans- ferred to work as machinist's handymen and the other blacksmith's helpers were subsequently laid off. We find that the record does not sustain the allegation that Nazy was discriminatorily laid off and shall dismiss the complaint with respect to him. Alex Kostuch. Kostuch had been employed by the respondent for about 2 years prior to his lay-off on May 31, 1938. He joined the Union in April 1937 and wore his union button in the plant. He was rated as a machine-shop laborer in the mechanical department of the Blast Furnace Division, receiving 22 points in December 1937 and 29 points in April 1938. As his relative standing was first in a group of one, it is impossible to compare his treatment with that of any other em- 650 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD ployee. We find that Kostuch was not discriminatorily laid off and shall dismiss the complaint with respect to him. Harry Horton. Horton was employed by the respondent on May 20, 1936, and worked as a motor inspector in the mechanical department of the Coke Oven Plant until his lay-off on June 6, 1938. He joined the Union early in May 1937 and was one of the more active members, acting as steward and being elected outside guard. As found above, Foreman Raybould, shortly after the Board election in January 1938, suggested that he take off his C. I. O. button, adding that since the Union lost the election it would no longer do him any good. Horton was rated in November 1937 and received a total of 16 points. He was rated poor in each of the eight traits which was unusual, as no other employee in the plant was so rated. In April 1938 he received a total of 25 points, improving in all traits except supervision, but nev- ertheless he stood eighth in the group of eight motor inspectors who constituted his occupational unit. He was laid off on -June 6, 1938. Immediately following his lay-off several motor inspectors were trans- ferred from the Blast Furnace Division to the Coke Oven Division, pursuant to the respondent's policy of preserving a nucleus for the for- mer division. No new motor inspectors have been employed since that time at either division. The respondent contends that Horton was not a safe worker and was injured in many accidents. However, the record shows that his rating in safety improved from "poor" in December 1937 to "fair" in April 1938. The respondent also contends that Horton was an alcoholic, which, together with illness, frequently caused his absence from work. He was made the subject of five abnormal reports dur- ing the period from November 20, 1937, to May 16, 1938. Consider- ing all the evidence adduced at the hearing with respect to Horton, we find, as did the Trial Examiner, that Horton was not laid off because of his union membership or activities. Accordingly we shall dismiss the complaint with respect to his lay-off. Joseph, Di Santo . 4 Di Santo was employed as a laborer and track- man in the yard department of the Coke Oven Division from May 11, 1936, to his lay-off on June 11, 1938. He was a member of the Union and served as steward for the yard department. A grievance filed by him concerning the providing of raincoats by the respondent was taken up in his name by the union grievance committee, and he was the only man in the department who wore a union button after the Board election on January 7, 1938. In November 1937 Di Santo was rated with 34 points and had a relative standing of 10th in a group of 11 trackmen in the yard department. In April 1938 he was rated with 28 points and had a s; Di Santo is incorrectly listed in some of the respondent 's records as Joseph Disanto INTERLAKE IRON CORPORATION 651 relative standing of 9th in a group of 10 trackmen, and 10th in the group of 11 trackmen and the trackwalker who constituted his occu- pational unit. Analysis of 'the ratings of trackmen discloses a general decrease in all ratings among this occupational group in April 1938. On the day of his lay-off Art McQuade, yard master, told Di Santo that he was being laid off because other trackmen with more experience were being transferred to the department from the Blast Furnace Division to the Coke Oven Division. Both Di Santo and the trackman rated below him were laid off on the same day. No persons were transferred from the Blast Furnace Division, but about 2 months later Joseph Demaria and Phillip Cavalerie were- trans- ferred from jobs as laborers to trackmen. Di Santo claimed to be a better worker than one trackman who was retained when he was laid off. However, the evidence is insufficient, to justify a finding that Di Santo was laid off because he joined and assisted the Union. We shall therefore dismiss the complaint with respect to him. George Dreznes.35 Dreznes was employed by the respondent on July 23, 1935, and, save for two brief lay-offs in December 1935 and February 1936, he was continuously employed until his lay-off on June 16, 1938. He joined the Union in May 1937 and 'wore his union button in the plant but otherwise was not active in the organization. Dreznes was rated in November 1937, receiving a total of 29 points with a relative standing of seventh in a group of seven lidmen in the oven department. In April 1938 he received a rating of 27 points with a relative standing of 10th in a group of 12 lidmen and 53rd in the group of 57 employees in his occupational unit, which included lidmen, larrymen, door-machine men, quench-car men, lutermen, and door cleaners. Upon all the evidence we find that Dreznes was not laid off because he joined and assisted the. Union as alleged in the complaint and, accordingly, shall dismiss the complaint as to him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE] We find that the activities of the respondent set forth in Section III, C, and D, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and 35 Incorrectly listed as George Drezner on employment card 720 In evidence. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to take certain affirmative action which we find will effectuate the purposes and policies of the Act. We have found that the respondent discriminated against Ray Beckley, Henry Buehler, Paul Bulich, Peter Cipich, Eli Knezevich, Henry Newsam, Glen Rose, and Gage Woods by laying them off and by thereafter failing to reinstate, them. We shall order the respond- ent to offer to each of these employees immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges. We shall order the respondent to make whole Henry Buchler, Eli Knezevich, Glen Rose, and Gage Woods for any loss of pay they have suffered by reason of their lay-off and of the failure to reinstate them by pay- ment to each of them of a sum of money equal to the amount which' he would normally have earned as wages from the date of his lay-off to the date of the offer of reinstatement, less his net earnings- during such period. Since the Trial Examiner found that the re- spondent did not discriminate against Ray Beckley, Paul Bulich, Peter Cipich, or Henry Newsam, we shall order the respondent to make these employees whole for any loss of pay they have suffered by reason of their lay-off and of the failure to reinstate them by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from the date of his lay-off until June 21, 1940, the date of the service upon the respondent of the Trial Examiner's Intermediate' Report, and from the date of our Order to the date of the offer of reinstatement, less his net earnings during said period.37 The respondent excepted to the Trial Examiner's findings that Woods and Rose had not obtained substantially equivalent employ- ment, thus contending, in effect, that those two employees should not be reinstated even though the Board should find that they had been discriminated against. We find, however, that the purposes and poli- cies of the Act require that the respondent'reinstate all the employees discriminated against irrespective of whether or not they have obtained substantially equivalent employment.38 88 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his -unlawful lay-off and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. 37 Matter of E. R. Haffelfinger Company, Inc., and United Wall Paper Crafts of North America, Local No. 6, 1 N. L R. B . 760, 767. 88 Phelps Dodge Corp. v. N. L R . B, 313 U. S. 177, modifying and remanding 113 F. (2d) 202 (C. C. A. 2), enforcing as modified Matter of Phelps Dodge Corporation, a cor- poration and International Union of Mine, Mill and Smelter Workers, Local No. 30,E 19 N. L. R B. 545; Matter of Fe, d Motor Company and International Union, United Auto- mobile Workers of America, Local Union No. 2119, 31 N L. R B 994. INTERLAKE IRON CORPORATION 653 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local Union No. 1657, Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, and Em- ployees Association of Interlake Iron Corporation, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment by Ray Beckley, Henry Buehler, Paul Bulich, Peter Cipich, Eli Knezevich, Henry Newsam, Glen Rose, and Gage Woods, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the mean- ing of-Section 8 (3) of the Act. 3. 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. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. 6. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, by laying off and refusing to employ Clarence Cristy, Joseph Di Santo, George A. Dreznes, Jr., Harry Horton, Alex Kostuch, Anton Kure, John Nazy, and Emil Ulaszek. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Interlake Iron Corporation, Chicago, Illinois, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local Union No. 1657, Steel Workers Organizing Committee, affiliated with the Congress of Indus- trial Organizations, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with,, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activ- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ities for the purposes 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) Offer to Ray Beckley, Henry Buehler, Paul Bulich, Peter Cipich, Eli Knezevich, Henry Newsam, Glen Rose, and Gage Woods, and to each of them, immediate and full reinstatement to their former or substantially equivalent positions, without, prejudice to their seniority and other rights and privileges ; (b) Make whole Ray Beckley, Henry Buehler, Paul Bulich, Peter Cipich, Eli Knezevich, Henry Newsam, Glen Rose, and Gage Woods, and each of them, for any loss of pay they have suffered by reason of their lay-off and the respondent's failure to reinstate them by paying to Henry Buehler, Eli Knezevich, Glen Rose, and Gage Woods, and each of them, a sum of money equal to that which each normally would have earned as wages from the date of his lay-off to the date of the offer of reinstatement, less his net earnings during said period, and by paying to Ray Beckley, Paul Bulich, Peter Cipich, and Henry Newsam, and each of them, a.sum of money equal to that which each would normally have earned as wages from the date of his lay-off to June 21, 1940, and from the date of this Order to the date of the offer of reinstatement, less his net earnings during said period; (c) Post immediately in' conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of Local Union No. 1657, Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, and that the respondent will not discrimi- nate against any employee because of membership in or activity on behalf of that organization ; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges (1) that the respondent by initiating, fostering, and promoting the formation and continua- tion of the Association and by dominating and interfering with its administration and contributing support thereto has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act; and (2) that respondent by laying off and failing to reemploy Clarence Cristy, Joseph Di Santo, George A. Dreznes, INTERLAKE IRON CORPO'RATTON 655 Jr., Harry Horton, Alex Kostuch, Anton Kure, John Nazy, and Emil Ulaszek, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. Mn. EDWIN S. SMITH, dissenting in part: I cannot agree with the conclusion of the majority of the Board that the respondent has not dominated the formation and administration of the Association in violation of Section 8 (2) of the Act. As the majority finds, the Plan which the respondent inaugurated for its employees in 1933 was plainly company dominated, and the respondent made no effort to emancipate its employees from the bond- age of the Plan after. the passage of the Act in 1935. I am firmly of the opinion that the circumstances under which the Plan was dis- established and the Association organized in 1937 show unmistakably that the Association was the successor to the company-sponsored Plan, and therefore tainted with its illegality.3o The mere disestablishment of the Plan did not, I believe, have the effect of giving back to the employees the freedom of self-organiza- tion of which they had been deprived under the operation of the Plan. The respondent at no time informed the employees that they would thenceforth be permitted to exercise the full freedom of self-organi- zation guaranteed by the Act. On the contrary, the minutes of the dissolution meeting of the Plan clearly showed the respondent's re- luctance to disestablish the Plan and its satisfaction with the activities of the employee representatives thereunder. As a result, while the respondent abolished the 'formal structure of the Plan, it allowed all the implications of the policies which the Plan represented to con- tinue forcefully in the minds of the employees. Moreover, the effect of the respondent's failure to counteract its past unfair labor' practices was heightened by other factors which the majority of the Board describes in large part but to which it erro- neously refuses, in my opinion, to,accord any weight. The temporary president, Mitchell, was a supervisory employee 40' A number of 29 N. L. R. B. v Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241 , reversing modification of Board's order in 101 F. (2d) 841 (C. C. A. 4), enforcing as modified Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L. R B. 866 ; Westinghouse Electric it Manufacturing Co v N. L. R. B., 112 F. (2d) 657 (C. C. A. 2), enforcing as modified Matter of Westinghouse Electric it Manufacturing Company and United Electrical Radio it Machine Workers of America, Local # 410, 18 N. L R. B 300 s0 Mitchell was a heater who directed the work of three helpers and was clearly a supervisory employee . Roberts, the first permanent president , as found by the majority, became a supervisory employee prior to the election on January 7, 1938. He continued, however, to hold his office. It is irrelevant that Mitchell and Roberts may have been included among the respondent 's production employees found by the Board to constitute an appropriate unit. See N. L. R. B. v. Christian Board of Publication, 113 F (2d) 678 (C C A 8) enforcing Matter of Christian Board of Publication and Allied Printing Trades Council of St. Louis, Missouri, 13 N. L. R. B. 534 , where the Court said at p. 682: "The respondent must be held responsible for the acts of its supervisory employees even though those employees may be included in an appropriate unit for collective bargain- ing If it were otherwise an employer could freely influence his employees ' freedom 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee representatives under the old Plan were active participants in the organization of the Association in its early , crucial, stages. As found by the majority, at the election of temporary officers on May 20, 1937, three of the four important offices were filled by former Plan representatives. In addition , Warren McHenry, Sr., a first-aid man in the personnel department, who had been a Plan representa- tive at the time of its dissolution , opened and conducted the Associa- tion's first general organization meeting, held May 12, 1937 . This was established by McHenry's own testimony, and was not seriously dis- puted. The prominent part taken by former Plan representatives in the Association's initial public bid for adherents among the employees necessarily created the impression in the employees ' minds that the approval theretofore bestowed by the respondent upon the company- dominated Plan was now being transferred to the Association. As noted by the majority, a number of former Plan representatives were active on behalf of the Union . The record does not show that for- mer Plan representatives predominated among the Union's first exec- utives, or in the inauguration of the Union's general organizational campaign, or, indeed, that they were predominant in any activity of the Union. In any event, whatever doubt as to the respondent's de- sires concerning the employees' self-organization might have been raised by the activity of former Plan representatives in both organi- zations was effectively dissipated by the numerous statements made by officials and supervisory employees of the respondent to their sub- ordinates in support of the Association and in disparagement of the Union. The majority finds that such statements were made as early as the first week in May 1937 , and it finds further that the respondent thereby interfered with, restrained , and coerced its employees in the exercise of their right to self-organization as guaranteed in Section 7 of the Act. The majority brushes aside, however, the necessary effect of this unlawful activity upon the employees in their choice as between the Association and the Union. To find that the respond- ent's unlawful interference did not constitute support to the Asso- ciation is justified neither by the plain facts in the record nor under Board and Court precedent 41 of choice by this means yet claim immunity. As between the respondent and its foremen the doctrine of respondeat superior applies and the responsibilities of that relationship are not suspended merely because the foremen chance to be included within the appro- priate unit for collective bargaining " 41 See International Association of Machinists, etc. v. N. L. R. B., 311 U. S. 72, affirming 110 F. (2d) 29 (App. D. C.), enforcing Matter of The Serrick Corporation and Interna- tional Union, United Automobile Workers of America, Local No 459, 8 N. L R. B. 621, rehearing denied, 311 U. S. 729; N. L. R B v. Link-Belt Co., 311 U S. 584 , reversing modification of Board 's order in 110 F. (2d) 506 (C. C A. 7), enforcing as modified Matter of Link-Belt Company and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers o f North America, etc., 12 N. L. R. B. 854, N. L. R. B. v. Texas Mining & Smelting Co., 117 F. (2d) 86 (C. C. A. 5 ), enforcing as modified Matter of Texas Mining & Smelting Company and International Union of Mine, Mill & Smelter Workers, Local No 412, 13 N. L. R. B 1163, rehearing denied February 1, 1941. INTERLAKE IRON CORPORATDON 657 The Board recognizes that it is not estopped from finding a vio- lation of Section 8 (2) of the Act because of the Board's certification of the Association in April 1938 42 Nevertheless, the majority places considerable stress upon the Union's participation in the election which resulted in the certification and its failure, timely , to charge company domination of the Association . -I am of the opinion, how- ever, that a dominated union is not transformed into a bona fide labor organization by delay in filing charges. Where, as here, the employer has persisted in its unfair labor practices, where it has continued to interfere with the rights of its employees , and where its campaign to establish firmly its own labor organization has culminated in the discriminatory discharges of employees who had indicated their desire for bona fide representation , mere lapse of time should not operate to condone and perpetuate activities proscribed by the Act. Sound administration of the Act requires , and I would find, that the re- spondent dominated the formation and administration of the Associa- tion. I would accordingly issue an order requiring the respondent to disestablish the Association. 42 In this connection, see National Labor Relations Board v. McKesson & Robbins, Inc., etc, 8 L. R R. 383, decided May 5, 1941, (App D. C.) enforcing, as modified, Matter of McKesson & Robbins, Inc., etc., and International Longshoremen d Warehousemen's Union, Local No. 9, District 1, affiliated with the 0. 1. 0., 19 N. L. R. B. 778 The Court said : " . . the result of an election is not always conclusive on the Board as to certification. It may disregard the results of an election, at any rate prior to certification if not also afterward, as it may those of any other method of ascertaining the majority, when it appears in proper proceedings that it has been affected by unfair practices." The overruling of the objections filed by the Union to the conduct of the election did not constitute a decision on the issues in this case, since the objections dealt only with alleged actions of the iespondeat on the day of the election at and round the polling places.