Pacific States Cast Iron Pipe Co.

In the Matter of PACIFIC 'STATES CAST IRON PIPE COMPANY and STEEL WORKERS ORGANIZING COMMITTEE, LOCAL UNION 1654 Case No. C-1924.-Decided December 10; 1941 Jurisdiction : cast iron products manufacturing industry Unfair Labor Practices Interference, Restraint, avid Coewcrioa. questioning employees regarding union membership and advising them against withdrawing from "in"side" union. Disc?vmvnatios: charges of, dismissed, where record does not establish that employer applied regular seniority rules discriminatorily in laying off employee who had been active in union Collective Bargainvng : majority established by consent election-refusal to enter into a signed agreement with union because it was an "outside" organization ; refusal to recognize and treat with union as exclusive representative of the employee in the appropriate unit; evincing of bad faith in, its dealings with the union throughout negotiations, especially by unilaterally granting a wage increase after union had requested bargaining conferences on the subject. Remedial Orders : order to bargain collectively and enter into signed contract if agreement reached on any conditions of employment acid if union so requests. Practice and Procedure : where union seeking to intervene raised no material issue in its petition, petition denied. Where union sought to intervene and reopen record after hearing, to take further evidence to determine by Nshat authority the charging union "claims the right to act as bargaining agency," on the ground that inter- vening union is party to a contract with employer designating it as sole bargaining agency, and it appeared that after the contract was signed the intervening union and the charging union both appeared on the ballot in a consent election won by the charging union, and where the intervening union did not question the validity of the results of the election, petition to intervene and reopen the record was denied on the ground that no material issue had been raised to justify reopening the record. Mr. Paul S. Kuelthau, for the Board. Mr. Louis H. Callister, and Stephens, Brayton cC Lowe, by Mr. Dean F. Brayton, of Salt Lake City, Utah, for the respondent. Mr. George W. Worthen, of Provo, Utah, for the Iron Workers. Miss Mary E. Perkins, of counsel to the Board. 37 N. L. R B., No 68. 405 433257-42-vor. 37-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT.OF THE CASE Upon charges and amended charges 1 duly filed by Steel Workers Organizing Committee, Local Union 1654, affiliated Frith the Congress of Industrial Organizations, herein called the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint dated March 26, 1941, against Pacific States Cast Iron Pipe Company, Provo, Utah, 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), (3), and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. As to the unfair labor practices, the complaint alleged in substance that the respondent (1) laid off Ralph H. Peters from March 8, 1940, until April 23, 1940, because of his activities on behalf of the Union ; (2) since April 13, 1940, has refused, although requested, to bargain with the Union which, since February 29, 1940, has been the exclusive representative of the respondent's employees in an appropriate unit: (3) since June 1939 has urged, persuaded, and warned its employees to refrain from joining or retaining membership in the Union; and (4) by these and other acts, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 5, 1941, the respondent filed its answer admitting certain allegations of the complaint pertaining to its business, but denying that it had engaged in the alleged unfair labor, practices. Pursuant to notice, a hearing was held in Provo, Utah, from April 7 to April 11, 1941, before Edward G. Smith, the Trial Examiner duly designated by the Chief Trial Examiner. 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 evidence bearing on the issues was afforded each party. At the conclusion of the Board's case,, and again at the close of the hearing, counsel for the respondent moved to strike Charges were first filed on April 8, 1940. and amended charges were filed on June 24, 1940, February 8, 1941, and march 25, 1941 ' The Steel `Workers Organizing Committee is referred to herein as the S W 0 C PACIFIC STATES CAST IRON PIPE ,COMPANY 407 as, irrelevant, testimony. given by Joseph, Hansen , concerning - the union membership of certain employees, to strike as irrelevant any evidence relating to Amalgamated Association of Iron, Steel and Tin workers of North America, and to dismiss the complaint for want of evidence to support its 'allegations. The Trial Examiner reserved ruling on these motions at, the hearing and denied them in his Intermediate Report. At the close of the hearing, counsel for the Board moved to amend' the pleadings to conform to the proof as to formal matters; this ration was granted. During the hearing, the Trial,Examiner made rulings on other motions and on objections to the -admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The•rulings are hereby affirmed. On June 24, 1941, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the respondent and the Union, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)'and (7) of the Act. He recommended that the respondent cease and desist from such practices; that it make whole Ralph H. Peters for any loss in earnings which he may have suffered by reason of the re- spondent's discrimination against him; that upon request it bargain with the Union as the exclusive representative of the respondent's employees in the unit found to be appropriate and reduce to writing any agreement reached by it with the Union, if requested to do so; and that it take certain other remedial action. At the request of the respondent, a hearing for the purpose of oral argument before the Board was set for August 21, 1941, at Wash- ington, D. C. Subsequently both the respondent and the Union waived oral argument before the Board. On August 16, 1941, the respondent filed exceptions to the Intermediate Report, and on August 25, 1941, a brief in support thereof. The Board has consid- ered the respondent's exceptions' to the Intermediate Report and its brief in support of its exceptions and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. On August 22, 1941, permission having been previously granted by the Board, the Iron Workers' Union of Provo, a labor organiza- tion claiming to be affected by the. proceeding, filed a written petition to intervene and, on August 25, 1941, a motion to take further evi- dence, together with a brief in support of its petition and motion. For reasons stated below, the petition to intervene and the motion- to take further evidence are hereby denied.3 0 See Section III, C, 2, infra. 408 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD Upon the entire record iii tlie'case, the Board males the following: FINDI-NGS'OF FACT 1. THE BUSINESS OF THE RESPONDENT Pacific States C'a'st Iron Pipe Company is a corporation organized and existing under the 1'w's'of the S'tAe of Nevada, and'q'ualified to'do business in the State of Utah. 'Therespo'rideilt's principal 'office and place of business i's near Provo, Utah,.whe're it 'oiler"ates a =plant for the manufacture of cast=iron pipe, valfes, fitting"s; and 'other cast- iron pr6ducts.4 During the year 1939, p'rod'ucts valued at approxi- mately $1,800,000 we're manufactured by the 'respondent At its Provo plant, 68 per cent of which were sold and shipped by the respondent to purchasers outside the State of Utah. Eighteen per cent of the raw materials used iii the manufac't'ure of its 'products 'are shipped to the respondent at its Provo plant from points outside the State of Utah. The respondent is a wholly owned subsidiary of McWane 'Cast Tron Pipe Company, Biiihhingha'In, Alabaiila. William McWaile is president, of both companies. At the time of the hearing; the respondent employed about 410 person's at its P'ro`vo plant. II. THE ORGANIZATIO\ INVOLVED Steel Workers Organizing Committee, Local Union 1654, which was known prior to July 1940 as' Amalgamated Association of lion, Steel and Tin Workers of North America, Local Lodge 1654,5 is a labor organization affiliated with the Congress of Industrial Organi- zations, herein called the C. I. 0., and admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Backgrownd In June 1937, the C. I. O. began to organize the respond 'ent's em- ployees and called a meeting to be held at the Labor Temple in Provo. Handbills announcing the meeting Were distributed in 'the plant on the morning of the meeting. At this time there was in effect at the plant an Employees Representation Plan which held regular monthly meetings participated in by representatives both 'of ''the employees 'arid of `the management. John K. Hawk, an' employee, was 'then 4 This plant is referred to herein as the Provo plant. 5 See Section III , C, 2, infra, where we discuss the Union' s connection with the Amalgamated Association of Iron , Steel and Tin Workers of North America PACIFIC STATES CAST IRON PIPE COMP,ANY,_ 409 chairman of-the Plan and Ralph. H. Peters, also an employee, its secretary. Qn the morning of the C. I. O. meeting, 1=Ia^vk and Peters decided- to call a meeting of the employees during the day to consider whether the Plan should_ be continued or wl ether the employees should join the C.-T. O. Before proceeding with this meeting, however, they conferred with George Sibbett, then general manager, of the plant and one of the respondent's representatives in the Plan. According to Peters, Sibbett told Peters and Hawk that if they wanted to hold a meeting, the whistle would blow at noon and they could call the men together at that time; but as they left, Peters testified, they were met by O. H. King, then the respondent's treasurer, who told them that they could not do "such a thing as that" because '•if we -call a meeting like that the men would all get together and somebody would get up and say, `Let's join the C. I. 0.', and you would all be in." Although Hawk denied hearing King make the statement attributed to him, by Peters, King failed to testify about this conference. Hawk did testify, however, that it was agreed in the conference that "the twelve o'clock whistle '. . . would be the signal to meet" but that King, whose office adjoined Sibbett's, inter- vened, saying that for him to grant permission to hold such a meeting might be construed as coercion on the part of the respondent. Hawk then decided that he "didn't want to take that responsibility of causing . . . wrath brought on the company" and withdrew his re- quest for a meeting. The Trial Examiner, who had an opportunity to observe the witnesses, credited Peters' testimony. Upon the basis of the entire record, we find that Peters' testimony is substantially correct. Peters also testified, and we find, that he was instructed by Harry Conger, an employee in the "office department" of the respondent, to distribute to the employees who attended the C. I. 0. meeting a mimeographed statement signed by Sibbett, which urged the men to attend the C. I. 0. meeting and make up their own minds, but which stated in addition "that we had been as one large family here for a long time, we had made advancements in different departments, we had spread out and formed new departments, and they hoped we wouldn't have something come up that would interfere or stop us from expanding." Hawk testified that handbills signed by Sibbett, which urged the men to attend the meeting, although suggesting that foremen stay away, were posted on the bulletin boards at the plant. He testified that he did not remember any statement in the handbills to the effect that the plant would close if there were any "requirements" the respondent could not fulfill; he was not asked whether-the, statement referred to by,Peters was included. We find 11 that handbills signed by Sibbett were printed and posted in the 410 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD plant by the respondent, and that-these handbills included the state- ment quoted by Peters and made it apparent to the, employees that the respondent did not want them' to join'the C. I. O. Shortly thereafter an unaffiliated union, the Iron Workers'- Union of Provo, herein called the Iron' Workers, was formed among the employees. A consent election was conducted by the Board in June 1937, to determine whether the employees desired to be repre- sented by the C. I. O. or by the Iron Workers. A majority of the employees who voted in this election designated the Iron Workers as their bargaining representative. Robert V. Greaves, one of the organizers of the new, union and a member of its first negotiating committee, testified that the Iron Workers at once presented a pro- posed contract to the respondent, demanding - a minimum rate of 55 cents, and a week's vacation with pay for employees with 3 years' service. In "a matter of days" the Iron Workers received from the respondent a contract granting a 57-cent -minimum rate, and a week's vacation with pay for employees with only 2 years' service. B. Events in 1939 and 1940; inter f erenzce, restraint, and coercion During the remainder of 1937 and until the fall of 1939, the Iron Workers, so far as the record discloses, was the only labor organiza- tion among the respondent's employees. During the summer of 1939, however, dissatisfaction arose among certain of the employees in the special foundry who believed that the Iron Workers was not effectively protecting the older men in, that department against the employment of new men in better jobs. On the morning of July 8, 1939, a group of about 12 of the special foundry employees' went to the time office in a body and withdrew assignments they had previ- ously filed authorizing the respondent to deduct from their wages and pay to the Iron Workers their dues in that organization.? Claude C. Cardall, personnel director of the respondent, was stand- ing on the porch of the office as the men entered and signed the neces- sary forms. After they left the office, the men went to their jobs at the special foundry and worked as usual until about 1 o'clock in the afternoon, when Cardall notified all the special foundry employees that King, who was now general manager of the plant, wanted to speak to them. Pursuant to Cardall's instructions, the men gathered in the sand-blast building, where King addressed them. Ralph E. Farrer and Freeman Stewart, two of the employees who had that day withdrawn their assignments of dues to the, Iron Workers, and e About 30 men were employed in the special foundry at this time The dues of the members of the Iron workers were checked off by the respondent under a law, of the State of Utah requiring employers to recognize assignments of wages to labor organizations PACIFIC STATES 'CAST IRON PIPE ,'COMPANY 411 Thomas J. Griffithi-who'waa the'special foundry' representative ,on the Iron Workers grievance committee at that; time, gave substantially the, same account of this meeting. According to their testimony, King' opened the meeting by stating that "there had been a lot of talk going around the plant" and that-he understood that "some of the older men were making trouble among the ,younger ones" and getting them "all stirred up"; and that the talk must stop "or else." King then asked Griffith What the trouble was and why the men had withdrawn from the Iron Workers.' Griffith explained that the men believed that their seniority rights 'had been violated, and reviewed certain other 'grievances which the men considered had not been satisfactorily adjusted. After some discussion of the grievances in question, King stated that "you can't dig up dead horses" and that "it was real unsportsmanlike to withdraw from [the Iron Workers] just because they hadn't helped our individual cause as we seen it." As to this meeting, King testified that he had visited the plant and discovered a pile of "several' thousand" defective fittings which had been produced by the special foundry and which the cleaning and inspection department had found it necessary to reject; and that thereupon he called together the special foundry employees and told them that the poor workmanship thus evidenced must stop or else the respondent would have to "take some action about it." This was, however, the only meeting to discuss the workmanship of the men that he recalled having held during 1939. He denied having made any reference to the withdrawal of the men from the Iron Workers, or having made any statement to the effect that the "talk" in the foundry must stop "or else." E. E. Hood, fore- man of the special foundry, also denied that King made any of the statements attributed to him, but later admitted that he did not recall the events of the meeting definitely,8 and that he had not been present at the beginning of the meeting. Griffith and Stewart both testified that in the course of the meeting the question of defects in the castings made by the special foundry was discussed; they stated, however, that the natter did not arise until after the meeting had been under way some time, and then only as one of several questions relating to the operations of the special foundry. - This meeting, as we have noted, was held shortly after a group of employees had, in effect, withdrawn from the Iron Workers. It was the only meeting that King recalled having held during 1939 to discuss the workmanship of the employees. In view of King's preference for "inside" over "outside" unions and his extreme con- 8To the question, " . Can you tell us what Mr. King said at the meeting?' Hood replied, "Well, now, that would be hard, because the only thing that I could say positive is what has been repeated since that meeting, asked me about it." 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tern for the welfare of "inside"-uni'ons;^as discussed elsewhere herein, we are convinced and find,- as did- the Trial E I'miner, that Kii1g called the meeting of July 8, 1939, because he had learned that over one-third of the employees in the special foundry department had that morning withdrawn from the Iron Workers, and that he ques- tioned employees present at the meeting about their union mem- bership and advised them against abandoning their membership in the Iron Workers. The respondent has thereby, we find, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. There is no evidence that any further defections from the ranks of the -Iron Workers took place in the summer of 1939. On August 9, 1939, the respondent signed another contract with the Iron Workers, by the terms of which the respondent recognized that organization as the exclusive representative of its employees.0 About November 1939 the first steps toward organization of the Union were taken by Ralph Peters, Ralph Farrer, and Freeman Stewart. These three approached David Reese, secretary of a local of the S. W. O. C. at the nearby Columbia Steel plant, in order to obtain the assistance of an S. W. O. C. organizer. The next evening Reese brought Varro C. Jones, Utah Director of the S. W. O. C., to Peters' home, and arrangements were made that night to launch an S. W. O. C. organizational drive. Meetings were subsequently held and members enrolled. Peters, Farrer, and Stew- art continued to participate actively in the drive and in the evenings, after work, drove around in their own cars to the homes of em- ployees to secure members for the Union. By February 1940, they had enrolled as members a substantial number of the respondent's employees and the Union requested the Board to conduct an election. As set forth below, a consent election was held on February 29, -1940, in order. to determine whether the respondent's employees desired to be represented by the Union, by the Iron Workers, or by neither. The Union won the election.te C. The refusal to bargain collectively; further interference, restraint and coercion (1) The appropriate unit The complaint alleged and the respondent admits that the produc- tion and maintenance employees of the respondent at its plant near 9It is not clear whether of not this contract was a renewal of the June 1937 contract signed by the respondent with the Iron Workers King testified that "contracts" had been in effect between the respondent and the Iron workers since the spring of 1937. 11 See Section III , C, 2, infra - PACIFIC STATES CAST IRON PIPE - COMPANY 413 Provo, Utah, including truck drivers, but 'excluding guards, watch- men, supervisors, technicians, clerks, and office employees, constitute a unit appropriate for the purposes of collective bargaining. In the consent election on February 29, 1940, this unit was adopted as appropriate by the respondent, the Union; and the Iron Workers. We find that the production and maintenance employees of the respondent at its plant near Provo, Utah, including truck drivers, but excluding guards, watchmen, supervisors, technicians, clerks, and office employees, at all times Material herein constituted, and that they now constitute, a unit appropriate for the purposes of collective bargaining, and that the said unit insures to employees of the respond- ent the full benefit of their right to self-organization and to collective bargaining, and otherwise effectuates the policies of the Act. (2) Representation by the Union of a majority in the appropriate unit The complaint alleged that at all times since February 29, 1940, Steel Workers Organizing Committee, Local Union 1654, has been the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining.. The respondent in its answer denied this allegation, asserting that the respondent "under- stands the true name of Local Union #1654 to be `Amalgamated Association of Iron, Steel and Tin'Workers of North America, Local Lodge #1654,"' and that the latter organization was designated by a majority of the employees in the appropriate unit on February 29, 1940, and has been the exclusive representative of such employees at all times since that date. The evidence indicates, and we find, that the respondent's employees were organized about November 1939 by the S. W. O. C. and that a charter was issued in March or April 1940, to the local thus formed, by the Amalgamated Association of Iron, Steel and Tin Workers of North America, herein called the Amalgamated. This was done pursuant to an agreement entered into in June 1936,11 between, the Committee for Industrial Organization and the Amalgamated, providing for the establishment of the S. W. O. C. with "power to handle all matters relative to the or- ganizing campaign other than the issuance of charters," and further providing that the Amalgamated should issue charters to locals or- ganized by, the S. W. O. C. The name of the Union under the Amalgamated charter was "Amalagamated Association of Iron, Steel and Tin Workers of North America, Local Lodge- # 1654." On July 24, 1940, a further agreement Was entered into by the Amal- gamated, the C. I. 0., and the S. W. O. C. which provided that the "This agreement and that of Ju13 24, 1940, mentioned below, neie intioduced into evidence 414 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD S: W.- O.' C. was to, issue charters in its own name to its lodges. in place of the. charters previously issued by the Amalgamated. In accordance with this, agreement, the charter which' had been issued to the Union by the Amalgamated was surrendered and a new charter issued in its place by the S. W. O. C. The name of the Union was thereby changed to "Steel Workers Organizing Committee, Local Union 1654." A. M. Peterson, president of the Utah State Industrial Council, Varro Jones, Utah Director of the S. W. O. C., and James Morgan, Regional Director of the C. I. 0., who represented the Union in its dealings with the respondent during the spring of 1940, continued to represent the Union in its dealings with the respondent after the July 1940 change in name. The record does not show that the respondent ever contended that Peters or the other officers of the Union did not represent the same organization after the Union was chartered by the S. W. O. C. No change in the internal organ- ization of the Union took place as a result of the change in affiliation. The formal acceptance of a charter from the S. W. O. C. in July 1940 and the consequent change in the name of the Union did not, in our opinion, alter the identity of the Union as a continuing labor organization. We find that the organization which was originally chartered by the Amalagamated was in fact the,same organization that subsequently acquired and continued to operate under a charter from the S. W. O. C.12 Pursuant to an "Agreement for Consent Election" entered into on February 25, 1940, by representatives of the respondent, the Iron Workers, and the Union, an election was conducted by the Regional Director on February 29, 1940, among the employees in the unit herein found to be appropriate to determine whether they desired to be represented for the purposes of collective bargaining by the Iron Workers, by the Union, or by neither. At that time, the unit consisted of 284 employees; 254 ballots were cast. Of these, 150 ballots were cast for the Union, 92 for the Iron Workers, and 12 for neither. In addition, the Union's members have signed slips authorizing the respondent to check off monthly from their wages and turn over to the Union their union dues. According to King, the respondent's general manager, more than 200 of the respondent's employees thus paid dues to the Union for March 1941, the month preceding the hearing. 12 The respondent excepted to the Trial Examiner's denial of its motions to strike all evidence relating to the Amalgamated on the giound that there is a variance between the pleadings and the proof, and thereupon to dismiss the complaint for want of evidence to support it. For the reasons set forth above, we find no merit in this contention In addition , the issue of difference in the name of the Union was raised by the respondent itself in its answer, and was met with the evidence set forth above . We have, accord- ingly, approved the rulings of the Trial Examiner in this regard See the Statement of the Case, above. PACIFIC STATES CAST IRON -PIPE COMPANY. 415 We find that on February 29, 1940; and at all times thereafter, the Union -was,, and now is, the duly designated representative of a majority of the; -employees in the appropriate unit and, by virtue of Section 9 (a), of the Act, the exclusive representative of all the employees- in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.13 - (3) The refusal to bargain On March 2, 1940, two days after the Union had been designated by a majority of the respondent's employees in the consent election, Peters and other representatives of the Union were notified that they were wanted at the plant for a meeting. The testimony which Peters, Farrer, and Robert 'Greaves, all of whom were present, gave concerning this meeting was not contradicted during the hear- ing, and was credited by the Trial Examiner. We find that the account given of the meeting by these three employees is substan- tially correct. They testified that representatives of the Iron Work- ers and employees "that chose to be represented by no union" were also invited to this meeting; and that King appeared at-the meeting, attended by two stenographers, and announced that he had called together "a group of the leaders" in order to make a statement of "As noted above, the Iron Workers, which did not appear at the hearing, has filed a petition to intervene and a motion to reopen the record in order "to take testimony to determine by what authority the Steel Workers Oiganizing Committee Local Union 1654 claims the right to act as bargaining agency for the employees" of the respondent. In support of its motion, it contends that it has been the "sole bargaining agency" of the respondent's employees since August 9, 1939, when as noted above, the respondent entered into an agreement recognizing the Iron Workers as exclusive representative of its em- ployees The Iron Workers maintains that this is 'a "valid, existing and binding agree- ment" which it has not "terminated, waived or abrogated " This contract, a copy of which is appended to the petition to intervene, provides that it shall remain "in full force and effect unless and until 30 days after notice of termination of same shall have been given by either party to the other" It is by virtue of this agreement, which it maintains has not been legally terminated, that the Iron Woikers now claims to be the "sole bargaining agency" of the respondent's employees We find no merit in this con- tention of the Iron Workers The record is clear, and the Iron Workers does not deny, that in the consent election conducted by the Board in February 1940, in which both the Union and the Iron Workers were on the ballot, a majority of the respondent's em- ployees designated the Union as their representative No contention is made by the Iron Workers that the election did not accurately reflect the desires of the employees in this regard. As a result of the election, the Union, by virtue of Section 9 (a) of the Act, became the exclusive representative of all the employees in the appropriate unit, and the respondent was thereafter obligated to bargain with it as such exclusive representative. Clearly, the August 9, 1939, contract cannot, in'the face of the consent election, operate to perpetuate the Iron Workers as bargaining representatives of the respondent's em- ployees (Cf. Matter of William Senn, at al. and International Union, United Automobile Workers of America (C. I. 0 ), 30 N. L. R B., No. 102; and Matter of The American. Coach & Body Co. and International Union, United Automobile Workers of America, Local 755, (C. I. 0 ), 28 N. L. R. B. No. 77, wherein we held that a contract terminable by either party on 30 days' notice will not bar a new determination of representatives ) We have, accordingly, denied the petition and motion of the Iron Workers. See the Statement of the Case, above. 416 DECISI6NS "0F NATIONAL LABOR "RELATIONS BOARD "company policy.` ' He added 'that he did lint want 'to lie misquoted and for that reason the stenographer's would take `down what he said in shorthand. Thereuijori ' lie i•eaid from a paper iii his- hand a brief statement to the effect that, until the Supreme Court bf the United Sfates had ruled to the cont 'ra'ry, the respondent "Would never sign a contract with an outside of anization ." Fai ei aiid Pete 'r's also testified, and we find , as did the Trial EYalhiher', that ' after' the meeting, which lasted only about 10 minutes, Peters and Farrer approached King and asked hiiii for a copy of the statement of company policy which he had - just read. King informed them that he had only one copy and that it would be impossible to get another one.14 He then turned to Peters and said, "Ralph , I have known you for a good many years , and I have known your family, and I certainly hope we don't have any trouble at this time." Peters replied, "Mr . King, we are not looking for trouble, and if there is any trouble coming it will have to come from the company." Two or three days later,1 5 King met with the grievance committee of the Iron Workers and, according to Doyle Curtis , a member of the committee, told the employees present that the respondent's only objection to signing a contract with the Union such as it had signed with the Iron Workers was that the Union was an "outside organ- ization." King stated that he did not "recall" making this state- ment. The statement, however, is consistent with the attitude displayed by King toward outside unions throughout the period from 1937 to 1941 and we find that King in fact iinade such a statement. On April 8i 1940 , the Union presented to the respondent a pro- posed contract and requested a conference to consider its terms.-' The contract proposed by the Union was in the form of an agreement for a definite term between the two parties and provided for recog- nition of the Union, a grievance procedure under which the Union and its grievance committee were to act on behalf of the aggrieved person, and an increase of 3 cents an hour in the basic wage rate. This proposal was discussed at meetings between the Union and the respondent on April 15 and April 20, 1940 , the discussion turning "The respondent neither denied at the hearing that copies of the statement were made, nor produced any copy of the statement. 15 This meeting was described as having taken place "on March 5 or 6" ; for con- venience it will be referred to as the meeting of March 5 16 During the bargaining, meetings which subsequently took place, the respondent ivas represented by King, B W Worthington , the respondent ' s assistant general manager Claude C., Caidall , the respondent's personnel director ; Dean F. Brayton ; and Louis H. Canister The last two men named acted as the respondent 's coiinsel at the heaciiig. The Union was represented by A M . Peterson , Vario Jones , and James Morgan, whose positions have been set forth above ; and the negotiating committee of the Union , including Robert V . Gieaves, William Gogarty , Ralph Peters , Doyle Curtis , Ralph Farrer , and others who were not named Although not all the representatives named above were present at all the meetings, the group in general remained the same throughout the bargaining negotiations ;, ,P.ACI IC, ;STATES , CAST 1R9N, PIPE CMPAIN417 largely on the.gnestioii of the proposed wage increase. The respond- ent explained at one . of these early meetings .that it considered the Iron Workers' 1939 contract ,to be still in effect, and took the position, throughout its negotiations with,the Union, that until an agreement was consummated i ith the latter organization, the respondent would not take any steps to terminate,the old contract.' . On April 27, 19,40, the respoident again met with the Union and submitted its first counterproposal ip the form of a set of rules which could be, modified or revised by the respondent at any time upon its posting a notice to, that effect in the plant for 30 days. It provided for recognition of the Union as the barg;lining agent for the respond- ent's employees and for the handling of grievances by the Union's representatives or grieve nce committee . A. M; Peterson, who was present as a representative of the Union at most of the meetings between the parties, and who testified on behalf of the Board con- cerning them, stated that he understood from the discussion on this day that the respondent's proposals were to be embodied in a written "two-party" agreement; and the question of whether the provisions; agreed upon were to be made binding on both parties does not appear to have occupied the attention of- the negotiators at this time. At this meeting and at a subsequent meeting on May 4, the. substantive provisions proposed by the respondent were discussed at length and minor changes in them made. On May 7, 1940, when the parties again met, the respondent pre- sented a pew proposal which evidenced a change in its policy concern- ing recognition of the Union. The new proposal, like the previous one, vas in the form of a set of rules, rather than an agreement; however, it oipitted the clause providing for recognition of,the Union. Inste;ld, it stated that it was the policy of the respondent "to promote an(l improve industrial and economic'relationships betNyeen the Coin- pany and its employees,," and that in order to effectuate that policy, its repi;e^sentatiyes would " meet with the duly auth(rized representa- tive or representatives of the employees" on all- matter's." It also provided that grievances would be handled either by the aggrieved employee himself or by his "representative or representatives." The respondent's representatives explained on May 7 that these changes ,were made pursuant to instructions they had just received from `Wllli,un McWtuie, the respondent's presideipt,'$ and that such of the 14 As noted above, the lion Workers' contract provided that it was to remain in full force and effect "unless and until thirty days after notice of termination of same shall have been given by either party to the other Termination by the Union shall be based 'upon the vote of a majority of the employees at an election held for the purpose,of con- s>,dering such termination " The Union took the position that the contract had been lautoniatically ternimated either at the time of'the election oi, at most, 30 days there- ,aftei, by the election agreement and the iesults of the election itself is See Section I above Jlcwane's office is in Birmingham. Alabama 418 DECISIONS OF NATIONAL LABOR" -RET:ATIONSS' BOARD substantive provisions- as might ultimately be agreed upon by, the parties would "be embodied in a set of rules which would be signed by the respondent alone and posted upon the plant bulletin boards. When - the 'Union 'asked the reason for the respondent's refusal to name the Union as bargaining agent for its employees, the respond- ent replied that it wished to "avoid - changing ' the contracts fre- quently," since it was possible that at a later date another labor organization might be designated by the employees as their repre- sentative. King explained that the respondent wished to have one set of rules which would be in effect continually , so that the respond- ent could have them printed and kept posted, without the necessity of change, upon the bulletin boards. Dean F. Brayton and Louis H. Callister, counsel for the respondent , who represented it during the negotiations , informed the Union that in their opinion such a set of ,rules . . . constituted a unilateral contract , that when the company signed it and put it up on the bulletin board and put it out as the rules that govern the wages , hours, and conditions, of work, that any man who came into the plant and became an employee accepted the terms as offered in that notice and received the ben= efit, and was subject to the obligations of the contract that it made. And of course the company was bound by it at all times immediately upon signing and publishing it. Brayton reiterated this opinion at the hearing ,' and the respondent has urged it in - the brief it filed in support of its exceptions to the Intermediate Report. Two more meetings were held after this ,, on May 11 and on June 8, 1940. The substantive provisions of the contract were discussed further, and changed somewhat, but according to' Brayton, "the im- portant' effort and talk was constantly devoted to this unilateral form" of the contract and little progress was made as to substance. It was agreed by the parties at 'the May 11, 1940 , meeting that the Union committee would consult ' with the S. W. O. C. , and that King would again consult McWane by' letter, in order 'to ascertain the final positions the parties would take on the matter. On June 8, the union representatives were called in by King, who read them McWane's answer . McWane's letter summarized his understanding that "after a number of meetings with our employees and their rep- resentatives you have practically agreed on all,points for an agree- ment except as to the form same shall take, " and then stated : Where management and employees are both sincere in their desire to handle their mutual problems in this [cooperative] spirit, a signed contract with a specific agency is more of a hindrance than a help. It is possible that the agency's interest PACIFIC STATES , C'AST' IRON" PIPE, `COMPAIVY_` 41-9 11: cannot at all. times be identical' with' that" of the' employees' and sl ,ons s ^: ti'the' Company.. ^ In such, a 'situati'on where there 'may' be . divisi of interest, misunderstandings may occur which "may develop into strife. , , A signed contract cannot and will not prevent''this.' _We -have ;no objection to signed contracts as such, but we'make them r , whenWe,believe they are of benefit to the Company; its'employees and its stockholders. Based' upon- 'the experience' of other's -as well as upon 'our feeling a two-party signed agreement with a specific agency, ' would undermine • morale' and efficiency and would hinder, the management or, the employees in their desire to maintain. peaceful and fair' relations; and based 'also upon our advice that this agreement, signed by us' alone will be-just as effective and enforceable r by' any of our 'employees as la two- party signed agreement, we must refuse'to enter- into` the"latter. King told the union colnmittee'on June 8 .that ifI they. would' accept the respondent's - last proposal, the respondent would `'at once send notice' to the Iron Workers of the respondent's intention to termi- nate the old contract, and, upon the expiration of '30 days, sign and post the rules. This offer was rejected by the Union, which ' offered- in turli'to' accept the substantive provisions of the respondent's last proposal, if the respondent would embody them in a signed "two- party," contract. The respondent, however, refused to recede from the` position outlined `by McWane, and the meeting carne to a close. On`June 24, 1940, the'Union filed charges with the Board alleging that the respondent had refused to' bargain collectively with the Union. Sometime in 'July 1940, at King's request, William Gogarty, 11 then president 'of the Union, appointed a Good Will Committee, composed of Gogarty, Peters, and Greaves.19 On the morning of September 10;'1940, King' called this 'committee to his office and an- nounced that he intended to hold a meetingin the plant that after- noon at, which',he would make''a'statemerit. ' Accordiligto Greaves, whose testimony we credit,' as did the Trial 'Examiner;20 King then said, "I 'am asking you three men-to be [at] that meeting, 'and 'after I have said, the things I have to say,-you fellows` can hang'n`ie'or feel as You choose." That afternoon the' lneetin'g '-announced'- by King was held,., It was attended by representatives of the'Unfon, by offi- cers of the Iron Workers, and by employees-wlio were'not members of, either union.. Greaves testified,,and we- find, that King stated at this meeting that the Union "had gone too far" in filing, charges with the Board, against the respondent -and that the- respondent; "`could not and, would not exist, with - a Labor Board club hanging' over its 19 The precise function intended for the committee fis not clear from the record 20 King did not deny Greaves" account of this meeting or the circumstances which led up to , it. Greaves' testimony was confirmed by-Ralph Farrer ' and Ralph-Peters. 420 DECISIONS-,OF NATIONAL LABOR RELATIONS, BOARD head...." Greaves, further testified, and , we• find, as did-the Trial Examiner, that King's remarks aroused Benj amiii Knudsen, an officer of the, Iron Workers to -ask, "What can we do toy have; these charges withdrawn?" , Knudsen was told by the Union's representatives that "the thing for him to, do was to join Local Lodge 1654 and come up to our next meeting .... and use all the influence he had to convert the fellows to withdraw their :charges." In the course of the meeting, which. lasted several hours, King an- nounced that he wanted to hold other meetings of,the same character, in order "to contact all the men in the plant to give -them the coin- pany's position." The three union representatives, however, called on, King the next day and told him that they did not care to attend further meetings under these -circumstances, and were then assured by King that no more meetings would be held: At King's request, however, Gogarty called a meeting of the Union's members, at which Gogarty described what had taken place at the September 10 meeting with king; and an opportunity was then afforded the' members to move the withdrawal of the charges that had been filed. None of the members, however, made any such motion. As McWane was expected to visit the plant during September or October 1940, the Union's officers requested King to arrange for them to meet with him at that time and King agreed to do so. McWane arrived on October 8, and the union representatives were notified that he would meet with them that afternoon. When they arrived at the appointed place, however, they found that this meeting, like those of March 2 and September 10, was to be attended by the officers of the Iron Workers. McWane addressed the assembled groups, and accord- ing to Greaves, He said for the benefit of the men of the Cast Iron Pipe Company, for their interest, and in the interest of the company and the stockholders, that he couldn't and wouldn't sigma contract with an outside organization. He stated further they had always treated their employees right and always expected to. He criti- cized us for paying our dues into an organization of [this] type. He said of course it didn't make any difference to him, we could belong to any organization we chose; we could even throw the money away if we desired. As the meeting was about' to close, McWane asked each of the union representatives separately if they had any questions, and each replied in the negative. McWane also announced that if "any employee or group of employees" cared to see him after the meeting, he would meet with them. The union representatives refrained from making such a request. Greaves testified that he and the other union representa- tives agreed that, inasmuch as they had already requested such a PACIFIC STATES CAST iR0\ PIPE , COMPANY 421 i .1 :I __^J- meeting with McWane, any further request, under the circumstances in which the suggestion was made, would "seem like pleading for a meeting." The foregoing testimony of Greaves as to this meeting was confirmed by Ralph Farrer and Ralph Peters. None of it was denied by the respondent's witnesses. We find, as did the Trial Examiner, that these events took place substantially as they have been set forth above. It does not appear that after McWane had announced that the re- spondent, "couldnt -and . wouldn't isign,.a contract with an outside organization," the Union had any further bargaining meetings with the respondent until 1941. At certain meetings between the union grievance committee and King in February 1941, however, King took -the position that individual wage adjustments and job classifications were in effect "wage increases," and matters which should be handled through collective bargaining , rather than through a grievance meet- ing. The Union, accordingly, drew up a new proposed contract and, on March 24, 1941, notified King that it wished to reopen negotiations for an agreement and requested him to set a date for a meeting as soon as possible. Four days later, on March 28, before a date for a bargaining con- ference t-had ' been set; -King ,called in the union grievance committee and announced that the respondent was granting a general wage in- crease of 3 cents an hour. Peters testified , and the respondent did not deny, that this was the first general wage increase since the one granted in 1937 when the Iron Workers first obtained a contract. According to Clifford Taylor, the president of the Union, King also told the union committee that if the respondent were compelled to sign a two- party contract with the C. I. 0., it would cease to operate the plant. When he was asked why he had been willing to sign a contract with the Iron Workers, but was not willing to sign one with the Union, he answered, }according to Taylor, "Well, if it was still the same bunch e Iron orkers Union, I would still be -willing.to sign a and str-11'th W two-party contract." King denied that he told the union committee that the respondent would close its plant if it were ordered to sign it contract with the C. I. 0.; he testified that he had told the men that if the plant were closed , it would be closed by the men themselves, by a strike. He did not deny any of the other statements attributed to him. The statements attributed to King by Taylor are consistent with his general attitude toward the Union. Taylor's testimony was credited by the Trial Examiner. We find that the March 28, 1941, meeting took place substantially as Taylor described it. In response to the Union's earlier request, the respondent met with the negotiating committee on April 5, 1941, 2 days before'the hearing in this proceeding. At this meeting, the respondent refused to state 433217-42-ror, 37--28 I , 422 DECISIONS OF `NATIONAL LABOR RELATIONS' BOARD iwhether or not'-it would'sigii a coiitia'ct with --the Union, on the ground that the "matter must now be decided'by the Board. King again told the committee ' at this meeting that he cohi idered • the Iron Workers' 'contract to be still in effect. ,(4) Conclusions with respect to the refusal to bargain and other interference, restraint, and coercion From the time of the election on February 29, 1940, when the Union was selected by the employees as their bargaining representative, until the time of the hearing, the respondent has consistently and openly displayed its determination not to accord to the Union the full recog- nition which would give reality to its legal status as exclusive repre- sentative ' of the respondent 's employees. The respondent has steadfastly refused to enter into a signed - agreement with the Union. It has proposed, instead, a set of rules which it would print and post in the plant, and has refused to provide in this set of rules for recogni- tion of the Union as exclusive representative of its employees. Nor has the respondent honored its obligation to deal exclusively with the -Union. At frequent intervals it has asked the Iron Workers to attend conferences with the respondent and the•Union and it invited the Iron Workers to the only meeting the Union was able to secure with McWane, the respondent's president. At this meeting, McWane of- fered, after announcing that the, respondent would not enter into an <agreement with- an "outside" labor organization, to meet with "any employee or group of employees" who wished to see him. In addi- tion, • throughout the course of its negotiations ' with the Union, the respondent has insisted that its contract with the Iron Workers, which provided that it could be, terminated' by either party on 30 days' notice, was still in effect, despite the fact that the Union.had replaced the-Iron Workers, as exclusive representative of its employees. The respondent's unwillingness to enter into a signed, agreement or to deal exclusively with:the Union cannot be viewed apart from its manifest, preference for "inside" over "outside" labor unions. When thei G'1., O. -began' Ito- organize in -June 1937; King opposed a general meeting of empl'oyees' because "sarnebodS",might have said "let's join the C. I. 0." and the employees "would all be in." In July 1939, howeirer, when a group 'of employees attempted to cancel the clues assignments they had made to the Iron Workers, King, imme- diately questioned them about the "trouble's and. advised "them against withdrawing, from the Iron Workers. Two days after the Union had been designated by -a majority of the respondent's employees in the consent election of February 29, 1940, King advised employees that the respondent would never sign an agreement with an "outside" union until the Supreme Court had ruled that it must; and, as noted '' t 'PACIFIC'' STATES CAST ,IRON i PIPE, COMPANY 423 'above, McWaiie hiiiiself a's'serted, after months of negotiations; that the respondent "couldn't and wouldn't 'sign a contract with an out- side ' organization:" ' On the ' other hand , the respondent in 1937 had readily awarded to the Iron Workers, an "inside" union, an agreement incorporating terms more favorable than those the Iron Workers ,had sought,' and signed another contract with the Iron Workers only a few months before its refusal to enter into a contract with the Union. It is plain that the respondent has refused to recognize the Union' as'exclusive representative or to enter into a signed agreement with it, and has -continued to deal with 'the Iron Workers because it has been vigorously opposed to the Union and openly in favor of the Iron Workers. Its entire course of conduct, after the Union had won the consent election on `February 29; 1940, was deliberately cal- culated to wean employees away from the Union and back to ' the Iron Workers .21 ' Under ' such circumstances, it was inevitable that the extensive negotiations between the respondent and the Uniori beginning on April 13 , 1940, should prove unavailing . Clearly,, the respondent has failed to discharge its obligation to bargain with the Union in good faith.22 So, too, its continued recognition of'the Iron Workers and its, unwillingness to recognize the Union as exclusive representative flagrantly violated the requirements of the Act.23 With respect , to its refusal to enter into a signed agreement with the Union, the respondent contends that the set of rules it proposed to post in the. plant would constitute, under the laws of the State of Utah, a unilateral contract , binding on the respondent and enforce- able by the employees "individually or as a group ." However, such t ,set of rules, which fails to mention the Union by name , or to ac- knowledge that the terms and conditions contained therein were the results of negotiations with the Union , deprives the Union of its status and dignity as the exclusive representative of the respondent's It should 'be noted that in proposing a set of rules in place of a signed ' agreement with, the Union, the iespondent emphasized that it wished to "avoid changing the con- tracts frequently" since it was possible that at a later date another labor organization might be designated by the employees 'as their representative - 22 The respondent's attitude toward bargaining with the Union was foicefully revealed by tlie•events which took-place in March and April 1941 'Four day's after the Union had requested new bargaining conferences to consider, among other things, the matter of wages, the. respondent found occasion , for the fist time since 1937 , to grant wage increases Such unilateral action by the respondent on a matter so obi iously the subject, of col- lective -bargaining, at a time when the Union had requested a bargaining 'conference, clearly indicated the respondent's 'con ti continuing deteumnation not to bargain with the Union Matter of Schmidt Baking Co, Inc and Local 622, Bakery Drivers and Salesmen, Af- filiated with the A F of L , 27 N. L. R B., No. 146, enforced in N L B, B v Schmidt Baking Co , Inc, 122 F. (2d) 162 (C C. A 4). See also M. H. Ritzwoller Co v. N L. R. B, 114 F' (2d) 432 (C' C. A 7), enforcing Matter of The M H Ritziooller Company and Coopers' International Union of North America, Local No. 28, 15 N L R B 15 11 .lfcQuay-Norris Manufacturing Company v N L R B, 116 F. (2d) 748 (C. C A 7), enforcing Matter of McQiiay-Norris Manufacturing Company and United Automobile Workei s of America, Local No 226, 21 N L R B 709, cert. den , 313 U S 565 424 DECISIONS, OF :NATIONAL LABOR RELATIONS, BOARD employees.24 Whatever the rights and obligations it might create under the laws of the State of Utah, it completely nullifies the prat tice and procedure of collective bargaining as contemplated by the Act. ?5 The respondent argues, however, that its announced. unwill- ingness to enter into a signed agreement with the Union cannot constitute a violation of the Act if in fact it had not agreed with the- Union upon the terms to be included in the contract. The obli- gation imposed by the Act, however, requires a willingness and intent to be bound by the terms eventually agreed upon, and the respondent failed to discharge this obligation when it stated in advance that it would not enter into a signed agreement with the Union.2° We find that by refusing to enter into a signed agreement with the Union because it was an "outside" organization, by refusing to recog- nize or treat with the Union as the exclusive representative of its employees in the appropriate unit, and by evincing bad faith in its dealings with the Union after bargaining negotiations had started, the respondent has, since about April 13, 1940, refused to bargain col- lectively with the Union as the exclusive representative of the employees in the appropriate unit; and that thereby the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged discrrivainaation against j alph H. Peters - On March 8, 1940, immediately after the consent election and the meetings of March 2 and 5, 1940, described above, the respondent laid Peters off. Charges were filed on April 8, 1940, alleging that Peters had been discharged because of his activities on behalf of the 21 N. L. R B v Acme Air Appliance Co , Inc, 117 F (2d) 417 (C C A 2). enforcing in pact, and remanding in part for other reasons. Matter of Acme Air Appliance Com- pany, Inc and Local No 1223 or the United Electrical Radio & Machine Woilers or Aineiica,.C 1 0, 10 N L R B 1385, N L R B v Oiiswcold Iffy Co, 106 F (2d) 713 (C C A 3), enforcing Matter of The Griswold Man« facturinq Comlpany and 4inalganiated Association of Iron, Steel and Tin lVoil,eis of North America, Lodge No 1197, 6 N L R B 298 2iH J Heinz Company v N L R B, 311 U S 514, affiimed 110 F (2d) 843 (C C A 6), enforcing Mattes of H J. Iletnz Company and Canning and Pickle Workers, Local Union No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North Amciica, American Federation of Labor, 10 N L R B 963 See Fort Wayne Corrugated Paper Co v N L R B, 111 F (2d) 869 (C C A 7), where the court stated that the refusal of the employer to sign any agieement niith a labor union, while i, was willing to post a written or printed memorandum of its labor and wage terns and schedules, was "indicative, not only of a hostile mental attitude, but is repugnant to the spirit of the Act, the heart of which is embodied in the light of the employees to negotiate with their employe?, collectively " 20Matter of Art Metals Construction Company and International Association of Ma- chinists, Local 1559, affiliated with District #65 of the I A IT. (A F of L ), 12 N F. R B , 1307, enforced as modified (in other iespects) in Art Metals Construction Cr,mpanif v N L R R, 110 F (2d) 148 (C C A 2) Matter of Highland Park Manufac- turing Co and Textile Worleis Organizing Coimnittee, 12 N L R B 1238, enforced in N L II If. v Highland Pail Manufacturing Company, 110 F (2d) 632 (C C A 4). PACIFIC 'STATES' CAST IRON PIPE COMPANY 425 imnioli. H e i,vas ' rehired' of April 23, 1940. The complaint alleged that the respondent laid Peters off because 'of his activities on behalf of the Union. The respondent in its answer adinit'ted that-it 'laid Peters off for the period named, but denied that it did so because of his union activities. At' the hearing the respondent introduced evidence to 'show that for business reasons it curtailed its operations in the early hart of 1940; that, in all, some 80 employees were laid off. during the period from February 23 'to March 20, 1940; and that Peters was laid off in his turn in accordance with rules adhered to b' the respondent. The rules governing increase and decrease of force which are used ih the plant, and which the respondent asserts it followed in the lay-off, are embodied in the contract which the respondent signed with the Iron Workers in August 1939.2' They are as follows : It is understood and agreed that in all cases of increase or decrease of forces, the following factors shall be considered and where factors-(a), (b), (c) and (d) are relatively equal, length of con- tinuous service shall govern : (a) Knowledge, training, ability, skill and efficiency. (b) Physical fitness. (c) Family status, number of dependents, etc. (d) Place of residence. (e) Length of continuous service. Provided that department seniority 28 rights shall govern, it being understood that the employee must in all cases have the necessary qualifications to perform the work for the particular job. In the case of decrease of forces;,employees who have trans- ferred from other departments may be retransferred to such departments. Employees who are laid off in good standing from oile department shall be reemployed in other departments when needed (or when a new department is established) in preference to hiring new men, provided they are qualified for the work according to the above rules. Peters was first employed by the respondent in 1927; except for a period in 1929 when he quit for 2 months, and another period in 1932 when the plant was shut down and he was laid off for 8 months, lie was employed continuously from 1927 until his lay-off in March 1940. For about 9 years he was employed most of the time on a g; At the time Peteis was laid off, the Union had replaced the Iron workers as exclusive bargaining representative. The respondent, however, ' admits, and we find , that.the rules embodied in the contract represented the respondent 's policy at the time of the lay-off 2e King testified that the term "seniority," as used in these rules , includes a consideration of all five of the factors listed in the provisions set forth above ; and the'word is-hereinafter used in this sense. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD core machine; in November 1936,. however, he was transferred to the special foundry, department, where , he^ was, employed at the time of the hearing., - - The, special foundry is one of several departments of the respond- ent's foundry operations. It includes four subdepartments : the spe- cial foundry proper, the brass sand foundry, pattern storage, and the pattern shop, all of which are treated • as one, department in the respondent's records and for the purpose of computing length of service. The department is supervised by E. E. Hood; Gene Halli- day, assistant foreman under Hood, is in charge of the pattern shop. Peters was assigned on November 20, 1936, to work as a pattern filer in the pattern shop at 45 cents an hour. For about 2 years he worked at filing, or "dressing," metal patterns. About December 1938, Peters was assigned by his supervisors to the work of making wood flasks and he remained steadily at this through the summer of 1939. In the fall of 1939, Hood advised Peters that one of the wood-pattern makers then employed by the respondent, one Ward, was getting old and might retire, and asked Peters if he had ever studied wood-pattern making. Upon Peters' reply in the negative, Hood entered into a discussion of such studies with him, as a result of which Peters, with Hood's encouragement, enrolled in a corre- spondence school course on wood-pattern making.29 At about the same time, Hood began to train Peters in the shop to make and repair wood patterns. At the time of Peters' lay-off in 1940, Ward had retired and Peters was acting as understudy to Halliday, the only first-class pattern maker then employed by the respondent. When Peters was transferred to the pattern shop in the fall of 1936, he was being paid 45 cents an hour. By the time of his lay- off in March 1940, he had received six raises in pay, and was earning 70 cents an hour. Only one, or at most two, of the raises were the result of general pay increases throughout the plant. The record indicates that the respondent considered Peters' work to be good and his efficiency high. Mervin Bray, who had worked near Peters, or with him in the pattern shop, since 1938, testified that during that period he never heard any adverse criticism of his work, and no evidence to the contrary was introduced by the respondent. On the other hand, Bray testified, and Hood did not deny, that Hood had praised Peters' ability both as to speed and accuracy on several occasions. In' 1937, Peters was secretary of the ,Employees Representation Plan and, with Hawk and the other employee representatives, met regularly with Sibbett and King at the monthly meetings of the 29 King wrote to Peters in November commending him for undertaking the studies Peters has since completed the course , and holds a diploma in the craft. PACIFIC; STATES, CAST IRON .PIPE COMPANY .^„ 427' Plan.: • He ;joined ,the , Iron, Workers when it was organized in June 1937, and. ; remained, a member of that organization until October 1939.• • Toward the end of 1939, however, Peters, with Farrer and Stewart, sought the aid of the S. W., O. C. and- brought about the organization of the Union in the .respondent's plant. The first, meet- ing was planned,at Peters' home,; Peters, Farrer, and Stewart carried on the membership drive; Peters and Farrer participated with Jones in the preliminary negotiations with the.respondent for the election agreement of February 25, 1940, and officially represented the Union as observers during the balloting, and in the counting and certification of the ballots cast. That their efforts to organize the plan had suc- ceeded was conclusively proven by the results of the election, which were announced on February 29, 1940. On March 8, 1940, Peters was notified that he was being laid off in order to make a place in the pattern shop for Ray Hansen, an employee. ' Hansen had worked in the special foundry department for' over 12 years, and had, spent a large part of this time as a pattern filer in the pattern shop. Beginning in 1935 he had now and then worked, for periods of varying length, as assistant foreman in the special foundry proper, and for 2 years prior to the March 1940 lay-off had been employed in the latter capacity. Hood testi- fied without contradiction that he was directed at this time to dis- pense with Hansen's help as a supervisor for the duration of the slack period, that this made it necessary to bring Hansen back to his for- mer job as a pattern filer in the pattern shop and that since only one pattern filer was needed at the time, Peters was thus displaced.3e Only two employees in the pattern shop, Peters and another pat- tern filer, Bray, were laid off during the slack period.31 Halliday, the assistant foreman of the shop, and who, as set forth above, was at this time the only first-class wood-pattern maker employed by the respondent, was retained to make. and repair wood patterns; and Joy Nielson, an employee, was retained to make and repair wood flasks and do general repair work, the job that Peters had had during most of 1939. While it appears from the entire record that Peters was a more highly skilled employee than Nielson, that he had been characterized by Hood as "one of the fastest woodmen he ever had in there," and that he was capable of doing the work for which Nielson was retained, the record shows that Nielson had been engaged SO Excluding Hansen's time spent in a supervisory capacity, he had it continuous service record of over 8 years in the special foundry department. Peters had a record of only 3 years. 3 months, and 16 days. 81 Although seniority is determined on a department basis, it does not appear how many, if any, other employees were laid off in the whole special foundry department No contention was made that the respondent discriminated in regard to the hire and tenure of employment of Bray, the employee in the pattern shop who was laid off with Peters. 428 DECISIONS OF NATIONAL LABOR RELATIONS'BOARD in the wood flask 'job for some time prior to the lay-off, that he had a reco'rd of continuous serVice in the special foundry departiizent of '3 years, 5 months, and 8 days, as compared to Peters' 3 years, 3 months, and 16 days, and that he was considered by Hood to be better fitted physically for the work. Under the circumstances, the respondent does not appear to have violated the seniority rules in retaiiiiing Nielson. Enlo Clontz, who had worked for only 1 Year and 3 months in the special foundry, was not laid off at all during this period. Clontz, when he first came to the department, had acted as supply man for the foundry, a job requiring little skill, since it consisted merely of distributing patterns and materials to the- men at work in the de- partment. The record shows, however, that in May 1939 lie was assigned to the work of moving the stored patterns into a new building and putting into effect a new system of cataloguing then, a job upon *hich he was engaged at the time of the lay-off and which was not completed until the end of 1940. Hood testified with- out contradiction that he [Hood] asked "the management" for a man whom he could keep on the job until it was finished, and that he told Clontz that he would not be transferred to other work until he had completed the assignment: Clontz was in fact kept on this as- signment until the fall of 1940, when he voluntarily quit the re- spondent's employ. While there is some conflict in the evidence as to the degree of skill required for the work upon which Clontz was employed, we are not convinced, in view of the special arrangements made in his case, that he was improperly excluded from the operation of the seniority rules. - John Dennis, who had worked about 2 years and 7 months in the special foundry as a mold and supply man, was laid off at the same time that Peters was, but was rehired during the slack period to do some work in the valve and hydrant department, and as a result was given about a week and a half more employment than Peters. Paul- son, the foreman of the valve and hydrant department, testified that he needed a temporary man to complete a hydrant order; and that since no men had been laid off from his own department he asked Hood for the names of those in the special foundry department who could be recalled. According to Paulson, Hood "asked about Ralph Peters. And I said, `Well, Ralph is pretty light for what I want. We are just on the heavy end of it and I would rather have a heavier man.' . . He asked how Dennis would do. I said I didn't' know of him, but I told him if he would fit in to send him out." The evidence is clear that the work in question was heavy, and involved the handling of 600-pound hydrants with the aid of another man. Dennis weighs about 180 pounds, while Peters weighs about 135. Dennis worked at the hydrant PACIFIC STATES CAST IRON PIPE COMPANY 429 job' for'about 3 ,Weeks and then was again laid-.. off, and not. rehired until after Peters was back at work. We,are of the opinion that the respondent -did not, in rehiring Dennis, discrimiliate against Peters. While we do not consider that Peters' case is entirely free from doiibt, we are not satisfied on the basis of the record that the respondent laid Peters off because of his membership and activity in the Union. We shall, accordingly, dismiss that portion of the complaint which charges that the respondent discriminated in regard to Peters' hire and tenure of employment, and thereby discouraged membership in the Union. IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 to take certain affirmative action which we find necessary to effectuate the policies of the Act. - We have found that on February 29, 1940, the Union was, and at all times thereafter, has been the exclusive representative of the re- spondent's employees in an appropriate unit. Having further found that the respondent has refused to bargain collectively with the Union as such representative, by, among other things, refusing to sign a contract with the Union, we shall order the respondent, upon request, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment; and we shall further order the respondent, if agreement is reached as to any of these matters, to embody the terms of such agreement in a signed contract, if requested by the Union to do so. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee, Local Union 1654, affili- ated 'v ith the Congress of-Industrial Organizations ,,is`a labor organ- ization, within the meaning of Section 2 (5) of the Act. 430 DECISIONS OF NATIONAL LABOR' RELATIONS, BOARD 2. The production and - maintenance employees of the respondent at its plant near Provo, Utah; including truck drivers, but excluding .guards, watchmen, supervisors, 'technicians, clerks, and office em- ployees, at all times material herein constituted, and they now' con-' stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Steel Workers Organizing Committee, Local Union 1654, affili- ated with the Congress of Industrial Organizations, is, - and has been at all times since February 29, 1940, the exclusive representa- tive of the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Steel Workers Or- ganizing Committee, Local Union 1654, affiliated with the Congress of Industrial Organizations, as the exclusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. ' 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, ,within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of Ralph H. Peters, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the respondent, Pacific States Cast Iron Pipe Company, Provo, Utah, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Steel Workers Organiz- ing Committee, Local Union 1654, affiliated with the Congress of Industrial Organizations, as, the exclusive representative of all its production and maintenance employees at its plant near Provo, Utah, including truck drivers, but excluding guards, watchmen, super- visors, technicians, clerks, and office employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to PACIFIC STATES CAST IRON PIPE COMPANY 431 form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or 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) Upon request; bargain collectively with Steel Workers Or- ganizing Committee, Local Union 1654, affiliated with-the Congress of Industrial Organizations, as the exclusive representative of all its production and maintenance employees at its plant near Provo, Utah, including truck drivers, but excluding guards, watchmen, super- visors, technicians, clerks, and office employees, in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment; and, if an ab eement is reached on any of such matters, embody said agreement in a signed contract with Steel Workers Organizing Committee, Local Union 1654, affiliated with the Con- gress of Industrial Organizations, if requested by that Union to do so; (b) Post immediately in conspicuous places throughout its plant near Provo, Utah, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Twenty-second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent engaged in any unfair labor practices by its discharge of Ralph H. Peters.