American Creosoting Co., Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1942

46 N.L.R.B. 240 (N.L.R.B. 1942)

In the Matter of AMERICAN CREOSOTING COMPANY, INCORPORATED and
OIL WORKERS INTERNATIONAL UNION, LOCAL 379, AFFILIATED. WITH
C. I.- O.
Case No. C-2049:Decided' December 23, 1940
Jurisdiction : lumber processing industry.
Unfair Labor Practices
Interference, Restraint and Coercion: anti-union statements; interrogation con,
cerning union membership ; threats of loss, of employment for union activity.
Discrimination: discharge of employee because of union activity ; refusal to
reinstate unfair labor practice strikers ; lay-off of two crews found not
discriminatory.
Collective Bargaining: majority conceded, and also indicated by participation
of employees in strike conducted by union-refusal to bargain by : refusing
to reduce to, writing terms agreed upon;, thereafter attempting to dissipate
union's majority and announcing that respondent would never recognize
union; in subsequent negotiations refusing to make genuine counterproposals,
insisting upon maintenance of informal arrangement under which respond-
ent and union had operated following respondent's refusal to sign exclusive
bargaining contract, and unequivocally opposing a signed contract.
Remedial Orders : cease and desist unfair labor practices-upon request to bar-
gain collectively and if an understanding should be reached, to embody such
understanding in a signed written contract; alleged loss of majority attribu-
table to respondent's unfair labor practices, not controlling-discriminatorily
discharged employee awarded reinstatement, but back pay awarded only from
date of filing charges in view of delay in making such charges-unfair labor
practice strikers awarded reinstatement and back pay notwithstanding con-
tention advanced in supplemental memorandum that certain of them had
engaged in a sit-down strike.
Unit Appropriate for Collective Bargaining : production employees at one of
respondent's plants, excluding supervisory and clerical employees.
Mr. Harold Weston, for the Board.
Mr. Kenneth Gardner, and Mr. Bernard Atwood, of New York
City, for the respondent.
Mr. Fred Wright, of Portsmouth, Ohio, for the Union.
Mr. Bertram Diamond, of counsel to the Board.
DECISION
. AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed by Oil Workers Inter-
national Union, Local 379, affiliated with the Congress of Industrial
46 N. L . R. B., No. 33.
240
AMERICAN CREOSOTING COMPANY, INCORPORATED 241
Organizations , herein called the Union , the Nationals ' Labor Rela-
tions Board ,, herein called the Board , by the Regional Director for
the Ninth Region ( Cincinnati , Ohio ), issued its complaint dated Oc-
tober ' 6, 1941, against American Creosoting Company, Incorporated,'
Russell ,; Kentucky , herein called the respondent , alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices, within the meaning of Section 8 (1), (3), and ( 5) and Section
2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. ` Copies of the complaint ,, accompanied by'
notices of hearing, were duly served upon the respondent and the
Union.
With reference to, the unfair labor practices , the complaint alleged
in substance ( 1) ,that since about August 1, 1936, the respondent, by
various enumerated acts, engaged in a plan and continuous course of
conduct to interfere with the right of its employees to self -organiza-
tion and collective bargaining ; ( 2) that on -March' 19, 1937, and at
all times subsequent thereto, a majority of the employees in an appro-
priate unit had designated the Union as their bargaining repre-
sentative , and that on or about that day and thereafter the respond-
ent refused to bargain collectively with the Union as the representative
of said employees ; ( 3) that on various specified dates the respondent
discharged 2 named employees , and laid off 12 named employees, and
at all times since those dates has refused to reinstate the said indi-
viduals, because of their union affiliation or, activities ; (4) that on
or about October 4 , 1937, the employees of the respondent ceased
work concertedly and went on strike.; ( 5) that the strike was caused
and prolonged by the unfair labor practices of the respondent; and
(6) that on or about December 23, 1937, the respondent refused to
reinstate , despite their application for reinstatement , 31 named em-
ployees because they had joined or assisted the Union or because
they, had participated in the strike.
On October 27, 1941, the respondent filed an answer admitting cer-
tain allegations as to its business and, denying that it had engaged in
unfair labor practices. _
Pursuant to notice , a hearing was.field at Catlettsburg, Kentucky,
from November 3 to 7, 1941, before Gustaf B. Erickson , the Trial
Examiner duly designated by the Chief Trial Examiner . The Board
and the respondent were represented by counsel and the Union by a
representative . All parties were afforded full opportunity to be
heard, to examine and cross -exarnine witnesses , and to introduce-evi-
clence bearing upon the issues . At the close of the hearing , the Trial
Examiner granted, without objection , -a motion of the Board to strike
from the complaint the names of three employees alleged to have been
'The complaint refers' to the respondent as American Creosoting Company The correc-
tion was made upon motion , granted without objection , at the hearing.
504086-43-vol 46---16 '
'S
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatorily refused .reinstatement after the strike 2 During the
course, of the hearing and iii his Intermediate Report, the Trial Ex-
aminer ruled on other motions. During the course of the hearing, he
also ruled on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
Thereafter the Trial Examiner filed his Intermediate Report, dated
January 7, 1942, copies of which were duly served upon the parties.
He found that the. respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. On
February 2, 1942, the respondent filed exceptions to the Intermediate
Report and, on April 24,1942,a brief in support thereof. On October
19, 1942, the respondent filed a memorandum supplementing its brief.
The Board has considered the exceptions to the Intermediate Report'
and the brief and supplemental memorandum submitted by the re-'
spondent and, insofar as the exceptions are inconsistent with the find-
ings of fact, conclusions of law, and order set forth below, finds them
to be without merit. -
Upon the entire record in the case, the -Board makes the following,:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation with its principal office
and place of business at Wilmington, Delaware. The respondent
operates plants at Indianapolis, Indiana, and Russell, Kentucky.
Through subsidiaries it operates plants at Madison and Edwardsville,
Illinois; Bloomington, Indiana; Rome, New York, and at various
other places.
This proceeding is concerned with the Russell, Kentucky, plant,
where the respondent processes railroad ties, bridge timbers, and poles,
with- creosote and tar, the latter materials being purchased, by the
respondent at-production centers located in many States. The lumber
to which these materials are applied is the property of the Chesapeake
& Ohio Railroad, which is the sole customer of the respondent- at its
Russell plant. There the respondent annually processes millions of
pieces of lumber. Approximately 60 percent of the lumber so proc-
essed is brought by,the railroad from points east of Kentucky,-and the
remainder from points west of the Alleghenies and from within the
Commonwealth of Kentucky itself. After the processing operations
are completed, the timber is hauled away by the railroad to various
2M Rhoden, J Potter and_J McGuire. In addition the complaint alleged the discrimina-
tory lay-off of Rhoden and the motion to dismiss also related to that allegation.
AMERICAN :CREOSOTING ' COMPANY, INCORPORATED 243
places - over -its_•entire, system, which operates through many States.
The respondent admitted at the hearing that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Oil, Workers International Union, Local 379, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting
to membership employees of the respondent at its Russell plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion; the discriminatory discharge
of Frank McKenzie
On December 4, ,1936, through the efforts of employees D. J.
McCarty,3 and Arthur Keuhne, 4 the Union was formed at the re-
spondent's plant. This move met with immediate opposition from
the respondent.
According to the testimony of Arthur Keuhne, on December 5
Superintendent Brown asked Keuhne to drop out of the Union and
to use his influence with fellow employees to induce them `to do like-
wise;Brown told Keuhne that "the C. I. O. was not a fit union to belong
to." At about the same time, employee Ben Ealey testified, Brown
asked Ealey if he had joined the Union, stated that it was "no good;"
and that the respondent would shut down its plant before it would
sign a contract with any union, and requested Ealey to "drop out" of
the Union and to "talk to the men and try to pull them out" of the
Union. Thomas Compton, a laborer, testified that a few days later,
Arnold Elkins, yard foreman, asked him whether he was going to join
the Union and admonished him that if he did join he would lose his
job. Superintendent Brown and Foreman Elkins denied the fore-
going testimony of Keuhne, Ealey, and Compton, but we, like the Trial
Examiner, credit it.
About the time of the formation of the Union, Frank,McKenzie, who
worked under the supervision of J. H. Coulter, superintendent of
construction,5 became an open and active partisan in its behalf. How-
ever, since the elegibility of construction workers for membership in
the Union had not yet been determined, McKenzie did not actually
become a member of the Union.
$ D. J McCirty is listed in the complaint as J McCarthy.
4 Arthur Keuhne is listed in the complaint as A Keuhne.
The respondent contended that Coulter was not employed by it. We find no merit in its
position. ' Although Coulter had no duties at the respondent's plant in connection with the
treating of lumber, he was an engineer employed by the respondent at its main office and
detailed to take charge of construction at the Russell plant Pursuant to this assignment,
be had supervisory authority over the construction gang, which was carried on the Russell
plant pay roll. _
244' DECISIONS OF NATIONAL, LABOR, ,REI:ATIONS" BOARD
It is undisputed,e.and we,l like- the Trial. Examiner; .fmd'"that early
in December 1936, Coulter instructed. Robert- Cooper;.who;^y as then
foreman of 'construction and McKenzie's superior,, to, find' out which,
of the employees in Coulter's department were interested in the Union
and to advise Coulter of what' he learned. Cooper talked to several
employees, including McKenzie, and learned. that McKenzie, accord-
ing to Cooper's own testimony, "seemed to be the strongest for the
Union." On December 15,.1936, Cooper advised-Coulter of his find-
ings and the latter then told him to get rid of McKenzie. On that
day Cooper discharged. McKenzie, refusing. to give him any reason
for this action. Two or three days before the discharge, according to
McKenzie , whom we credit, Coulter himself had interrogated Mc-
Kenzie about what he thought of the Union, and whether he belonged
to it. McKenzie said that he did not belong- to the Union. When
Coulter asked whether he,would join, McKenzie answered that he
would if he had the opportunity. Coulter said: "Just what do,you
think it [the Union] would amount _to around here ?" In reply DZc-
Kenzie declared that he thought it would be a good thing.'
The respondent contended that McKenzie'was"laid off on Decem-
ber 15, 1936, because the volume of construction work, which was tem-
porary in nature, was on the decline. In support of its position,
Brown testified that two other, construction workers were released
during the same week, and' that Coulter had told him that McKenzie
had been laid off because of lack of work.
We cannot, in the light of the entire record, accept the respondent's
explanation as a valid defense to the release of McKenzie. At that
time there were about 15 or 20 persons engaged inI construction work.
As late as October 1937, at least 10 construction workers were carried
on the pay roll. Construction at the plant continued' until 1938 or
1939. Thus, even though the amount of construction work was de
dining during the period in question, there can be no doubt that it
continued for some time after the discharge of McKenzie. The re-
spondent has not explained its selection of McKenzie for 'release and
its retention of others doing similar work. On the other hand,, all
the circumstances surrounding the discharge lead lo the conclusion
that McKenzie's employment was discontinued because of his activity,
on behalf of the Union.
Although, as related below," in March 1937, the respondent came
to an agreement with the Union, its hostility nevertheless continued.
8 Coulter did not testify The respondent by its counsel stated that he was recuperating
from a foot injury in Indianapolis , Indiana
' Cooper disclosed , and we find, that in 1936 and 1937 Coulter had several times advised
him not to join the Union . Cooper further asserted, and we find,'that while he was a fore-
mnan, which position he occupied until about May 1937, he had a number of discussions with
employees in which be "talked against the Union "
8 See Section III B 3,,1n fra.
AMERICAN CREOSOTING COMPANY, INCORPORATED 245
•Foreman'Elkins,•second to Brown in ,authority, was especially active
'in the months ' following the agreement. We find, as did the Trial
Examiner, upon the basis of the testimony of the employees involved,9
and despite the denials of Elkins, that 'the following conversations
occurred during that period : When employee Edward Albright was
hired in July, Foreman Elkins told him that some of the employees
had joined the Union, but that Albright should "put no money in
any union, ,because it ain't worth a damn." In August, Elkins urged
;employee .George Spradlin to ask follow employees to abandon the
Union. Spradlin reported.this conversation to D. J. McCarty, re-
ferred to above, who thereupon talked to Elkins about the matter.
Elkins admitted to McCarty that he had spoken in ,the manner at-
tributed to him by Spradlin, and asserted that .he had done all he
could to keep the employees from joining the Union because he
thought that they would be "better off." During the same period, El-
kins inquired of employee Lewis Green what he thought "about that
little union ithat 'was coming up there," and stated, "I would hate to
see you, . . . an old man, lose your job. If you go into it, Mr.
Brown will never recognize the union and you will lose your job." In
September Elkins asked Frank Ketterer, a laborer, whether he was
in the Union and advised him against joining it.
Further, we find, upon the basis of the uncontradicted testimony of
employee Ben Ealey, that in August, Roy Howell, crane foreman,
asked him whether he was a member of the union committee 70 and
told him to keep off that committee because "the ones on the commit-
tee are not going to get work."
As'described below,11 a strike of the respondent's employees termi-
nated on December 23, 19,37. Shortly.after that date a striker,' Thomas
Compton, whom we credit, as did the Trial Examiner, despite the
denial of Elkins, applied to Elkins for his job. Elkins, referring to
an earlier conversation with Compton set forth above, said : "I told
you when you joined the C. I. 0. that you would lose your job. That
is nothing but a Communist outfit."
We find that the respondent, by the above statements of Brown
to Keuhne and Ealey, of Elkins to Compton, ,Albright, Spradlin,
'McCarty, Green, and Ketterer, and of Howell to Ealey, and by the
inquiries of Coulter and Cooper -concerning-union membership, has
interfered, with, restrained, and, coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We further find, as did the Trial Examiner, that the respondent has
discriminated in regard'to the hire and tenure of employment of
° The testimony of Letterer, however, was not discussed in the Intermediate Report.
10 The word "union" was not mentioned in this connection by the witness but from the
context of the questioning and from the,record it is apparent that the witness and Howell
referred to a union committee.
11 See Section III D 2, intro.
246 DECISIONS OF "NATIONAL LABOR RELATIONS BOARD
Frank McKenzie, thereby discouraging membership in the Union and
interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain collectively
1. The appropriate unit
We find, as the complaint alleged and the respondent conceded
at the hearing, that the production employees of the respondent at its
Russell, Kentucky, plant, excluding supervisory and clerical em-
ployees, at all times material herein constituted and now constitute
a unit appropriate for the purposes of collective bargaining, and that
such unit will insure to employees of the respondent the full benefit
of their right to self-organization and to collective bargaining and
will otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
It was conceded at the hearing by the respondent that the Union
had "represented a majority of its employees," and that such was true
in March 1937. The testimony of the Union's secretary-treasurer
establishes that in September 1937 the Union had about 80 paid-up
members, a majority of. the not more than 122 persons employed dur-
ing that month. Moreover, all but a few of the persons employed,
on October 4, 1937, engaged in the strike' conducted by the Union
which began that day. Finally, by letter of November 16, 1937, the
respondent conceded the Union's majority. -
We find that on March 19, 1937, and at all times thereafter, the
,Union was the duly designated representative of a majority of the
employees in the appropriate unit, and that pursuant to Section 9 (a)
of the Act, the Union was at all times material herein and is the ex-
clusive representative of all the employees in such unit for the pur-
poses of collective bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment .12
3. The refusal to bargain
In December 1936, the Union requested a meeting with the respond-
ent for the purposes of collective bargaining. The request was
12 The respondent argued in its brief that the Union had lost its status as majority repre-
sentative because ; according to the record,,at the time of the hearing it had no members in
the plant and had not functioned as an organization for a considerable period. . Since we
find below that the respondent refused to bargain in good faith with the Union in March
1937 and thereafter , that by such refusal and by discr .minatory lay-offs it caused the strike
of October 1917, and that , up fo the time of the bearing , it refused to reinstate a number of
unfair labor practice strikers, we are of the belief that any dissipation of the Union's majority
is attributable to the respondent 's unfair labor practices and is therefore not controlling.
N. L R B. v. Bradford Dyeing Association, 310 U. S. 318; International Assooiation-of
Machinists v. N. L. R. B., 311 U. S. 72. -
AMERICAN CREOSOTING COMPANY)
I
-INCORPORATED 247
promptly granted, and the parties by their representatives thereupon
met in the office of the respondent. Between the time of that meeting
and ,March 19, 1937, several conferences were held by the parties dur-
ing which proposals made by the Union for wage increases, seniority
rights, and working conditions were discussed. On March 19, 1937,
the parties came to an agreement. The Union reduced to writing the
terms agreed upon and asked the respondent to sign the memoran-
dum of agreement. The respondent, through Superintendent Brown,
as Roy Nichols, a member of the negotiating committee credibly testi-
fied without contradiction, refused to sign, stating that it feared
the Union might be led by radicals who would cause the respondent
trouble.
The document in which the Union had set forth the terms of the
agreement between the Union and the respondent stated that the
agreement was to be in effect from March 19, 1937, to September 1,
1937,,and thereafter, -unless terminated ,by either party on 30 days'
notice. The agreement also defined seniority rights and working con-
ditions and provided for an increase in wages. It is noteworthy,
however, that the agreement made no provision according recogni-
tion to the.Union as exclusive bargaining agent for the respondent's
production employees.
Although the respondent remained adamant in its refusal to sign the
agreement, the parties nevertheless operated under the terms set forth
in the Union's memorandum until September 1937. As early as May
1937, however, sharp disagreement developed between the Union and
the respondent' over the' interpretation 'of the seniority' provision.
The particular question giving rise to the controversy was whether
older men were entitled to have their choice of day work, as opposed
to piece work, in the yard. It was the Union's contention that the
seniority provision covered the distribution of jobs generally, while
the respondent's position was that it regulated only the order of lay-
off and reemployment. Seniority was one of the issues which caused
the Union to initiate negotiations for the revision of the terms agreed
upon and for the securing of a signed agreement.
As stated above '13 while the agreement was in effect, the respondent,
by its foremen, Elkins and Howell, sought to undermine the Union by
stating to employees that the respondent would never recognize it, by
disparaging the Union, by urging employees not to become or remain
members of the Union, and by threatening them with -loss of employ-
ment for union membership or activity. -
By letter of September 2, 1937, which stated that it was in confirma-
tion of a telephone conversation of the previous afternoon, the Union
informed the respondent that it would meet with the respondent on
' See Section- III A, supra.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 7, "at which time we will present for your consideration
and approval certain desired changes and amendments to the present
'working agreement, as well as certain requests for alterations in pay
rates and working schedules."
The meeting was held ' on September 7. At this conference the
Union presented a proposed written contract with provision for (1) a
closed shop; f(2) a check-off of union dues; (3) a, substantial increase
in wages; and (4) a new set of working rules, including a more ex-
-tensive system of 'seniority. The respondent refused to accede to
any of the, Union's proposals. Superintendent Brown read to the
union representatives a memorandum prepared by the respondent's
attorney, Kenneth Gardner, giving reasons for the respondent's posi-
tion. The Union requested counterproposals, but the only offer the
respondent would make was that it would continue 'its relations with
,the Union in accordance with the terms agreed upon on March •19.
To this offer, the Union replied that, although the March 19 memo-
randum was unsatisfactory, it might be possible to get the men to go
ahead under it if it was signed. The respondent refused to sign the
memorandum of agreement, Superintendent Brown, according to the
uncontradicted and credible testimony of Roy Nichols, giving as its
reason "that a man's bond was no better than his word.'.' No :agree-
,ment was reached either at this conference or at other meetings in
September, at which the respondent reiterated the ,position it took on
September 7.
A few days after the bargaining conference of September 7, 1937,
described above, the Union met and unanimously voted to strike. The
,"strike vote was taken because the respondent had refused .to bargain
in good faith and to enter into a signed contract with 'the Union. 'On
September 22, 1937, the -Union notified the respondent that it was
terminating the "unsigned contract" and that there was a-possibility
of a work stoppage.
During the course of the strike," which started on October 4, 1937,
the respondent and the Union held several meetings for the purpose
of settling the controversy. A meeting was held at Ashland, Ken-
tucky, on November 10, 1937. At this meeting the respondent was
represented by Superintendent Brown and Attorney ,Gardner, among
others, and the Union by the local's bargaining committee and an
International representative. The Union's proposals of September 7
were discussed. Attorney Gardner, according to the testimony of
Superintendent Brown, "rehashed" for the negotiating committee
the `same memorandum that had been read by ,Superintendent Brown
on September 7. The respondent made no counterproposal apart from
reiterating its willingness to perpetuate ,the arrangement of March 7.
u The circumstances under which the strike occurred are discussed in detail in Section D,
infra.
AMERICAN CREOSOTING COMPANY, INCORPORATED 249
When the Union repeated its earlier demand that the respondent
sign the March agreement, Gardner, according to the uncontroverted
and credible testimony of Nichols and McCarty, answered as follows :
"If you think this company will put their name on paper, either
for, this union or any other union, for you fellows to take out and
wave to the country, you are badly mistaken." Gardner then invited
the employees to return to work under the conditions that had existed
prior to-the strike. The meeting ended without any settlement of the
controversy. Thereafter the respondent and the Union did not suc-
ceed in concluding any collective bargaining contract.
4. Conclusions
The Act required the respondent, upon request, to bargain with
the Union in good faith as the exclusive representative of its produc-
tion employees and to embody any understanding reached in a writ-
ten ;agreement signed, by both parties. The respondent. did- not do so.
Superintendent Brown's warning,, in December 1936, that the re-
spondent would not sign a contract, with any union, was fulfilled on
March 19, September 7, and November 10, 1937, when the respondent
refused to reduce to a written contract, signed by and binding upon
both parties, the terms agreed upon on March 19, 193,7. These
actions constitute a breach of the respondent's statutory obligation
and are strong indication that the respondent did not bargain with
the Union in good faith.15 The record contains additional evidence
of a steadfast, determination on the part of the respondent against
granting, recognition to the Union or fulfilling , the requirements of the
obligation to bargain in good faith. The agreement of March 1937
did not provide for exclusives recognition of the Union. In the sum-
mer of 1937, as, set forth above,"' the respondent sought to dissipate
the Union's majority, and Foreman Elkins openly announced that the
respondent would, never recognize the Union. Proper recognition
was in fact denied the Union by the respondent's insistence upon the
maintenance of the arrangement in the March 1937 agreement and
by its unequivocal opposition to a signed contract. Finally, the re-
spondent's bad faith is shown by its inflexible stand and its consistent
refusal to make any genuine counterproposals during the negotiations
in the fall- of 1937. ,
Upon the entire record, we find, as did the Trial Examiner,, that
the respondent, on and at all times after March 19, 1937, refused to
bargain collectively .with the Union as, the. representative. of its em-
ployees -in the appropriate. unit, and that, by the above conduct, it
16 H. J. Heinz Corp. v. N. L. R. B., 311 U. S 514; McQuay-Norris Mfg. Co: v. N. L. R. B.,
116 P. (2d) 748 (C. C. A. 7) cert. den . 313 U. S 565.
10 See Section III A, supra.
250 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
C. The • alleged discriminatory lay-off of the adz mill and - "black
crane" crews
The complaint :alleged., that, on October 4, 1937, the: respondent dis-
criminatorily laid off Edward Evans, Ben Ealey,, William Clark,
G. C. Ousley, D. Toney, M. Gamble; F. Ketterer, W. Pennington,
A. Jacobs, A.. Brown, and, A. Keuhne. 'The respondent's answer
stated that each of the named employees ceased to be employed by it
on the date in question, but denied any unfair labor practices in
connection therewith.
As already stated, the Union voted to strike after the unsuccessful
bargaining conference of September 7. On September 22, the Union
notified the respondent that there was a possibility of a work stop-
page. The operation of the respondent's plant is relevant to an
understanding of subsequent `occurrences. The respondent employs
personnel classified as tie handlers, crane operators and crews, motor-
men and switchmen, adz mill operators and crews, retort operators;
and laborers. Green timbers are received in railroad cars and un-
loaded by the tie handlers. By means of cranes and laborers, the
timbers are sent to the adz mill for planing and boring. The timbers _
are then loaded on trams and, by motor locomotion, pushed into 'large
cylinders - for treatment. ' After treatment, the black timbers are
piled in the yard until such time as the Chesapeake and Ohio Rail-
road 'needs them. It is evident that the functions of the various
departments are interdependent.
On the morning of September 24, 1937, upon orders from the
Union's strike committee, both shifts on the "black crane" crew -re-
sponded to the call of the strike committee by engaging in a stop-
page of work. The stoppage ' took place on the premises of the
respondent but the, crew members do - not appear' to have- been re-
quested to leave. Operations on the "black crane" were then resumed
on the morning of September 25.
At about 8 a. in. on October 4, 1937, the motor crew ceased work on
orders from the strike committee. The crew consisted of two men
who were engaged in transporting, by means of an electric engine,
tramloads of materials from the yard to the adz mill, from the adz
mill to the treating cylinders, and from the treating cylinders to the
"black crane." The stoppage of the motor crew also appears to have
taken place on the respondent's premises, but, as in the case of the
"black crane" , crews, ,there is no indication that the respondent sought
to oust them. ' •
'AMERICAN' CREOSOTING ` COMPANY, INCORPORATED '251
'About'9:'30,' a. in.. on October 4; 1937; Superintendent Brown
directed the discontinuance of operations in the adz mill and ordered
that the adz mill crew be sent home, thereby laying off the adz mill
,crews on the first and second shifts. At about 10: 30 a. in. he ordered
the lay-off of the' "black crane" crew. When the second shift on the
"black crane" reported for work at about 12 noon, they were likewise
laid off.
Evans, Ealey, Clark, Ousley, Toney, Gamble, Ketterer, Penning-
i,on, Jacobs, Brown, and Keuhne were among the employees of the
adz mill and crane department crews who were laid off on October 4.
All the afore-mentioned employees were members of the Union at
the time of their lay-off. It appears. probable, 'although the record
is not entirely clear, that the total number affected by the release of
the adz mill and "black crane" crews ranged from 20 to 25 and that
practically all of them were members or supporters of the Union.
Both shifts on the "black crane" had engaged in the stoppage of
September 24.
''At .the hearing the respondent contended that the employees on
the 'adz mill and "black crane" had been sent home' because the
shut-down ,of the motor had deprived them of work.
In support of the allegation of the complaint that these men
had been discriminatorily laid off, evidence was introduced to show
that, prior to October 4, it had been the custom in the plant, when
the motor was down for repairs or for other reasons there was no
work to be performed in the adz mill and "black crane" departments,
to assign the adz mill and "black cane" crews to the yard department
to unload and move timber, to rake bark, and to-perform other work
usually done by yard laborers, displacing, if necessary, regular yard
laborers. We-find, however, that the custom did not extend to situa-
tions of the kind which existed on October 4 and that the respondent
did not discriminate against the men in question by laying them off.
The employees' under discussion joined the strike, described below,
which began after their release. Since, at the time of their lay-off,
they had a reasonable expectation of returning to their jobs,. they
remained employees of the respondent and retained that status when
they joined.the strike on October 4. Since, as we hereinafter find,
the strike was caused by the respondent's unfair labor practices, these
employees, like the others who participated in the strike, became
unfair labor practice strikers. They were not, up to the time of the
hearing, offered reinstatement to their, former or substantially
equiyalent employment.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The unfair labor practice strike and the refusal to reinstate,the
strikers
1. The.causes of the strike
As soon as the adz mill and "black crane" crews had been released
.from work on October 4, 1937, they gathered on the premises of the
respondent. A strike of all but a few of the respondent's employees
began at 12: 15 p. in. on October 4 and continued until about Decem-
ber 23, 1937. Although the treatment of these employees was the
immediate cause of' the strike, the uncontradicted testimony of Roy
Nichols, and of other employees, establishes that the strike of October
4, 1937, was called for the further reason that the respondent would
not sign a contract with the Union and otherwise refused to bargain
with it in' good faith. We have already found that the respondent
engaged in an unfair labor practice by refusing to bargain with the
Union. We have also. found that.- on November 10, 1937, while -the
strike was in progress, the respondent -persisted in its refusal to bar-
gain collectively with the Union by refusing to sign a contract incor-
porating terms acceptable to the Union and the respondent.
We find, as did the Trial Examiner,'that the respondent, by refus-
ing to bargain collectively with the Union, caused- the strike of
October 4, 1937, and that the,strike was thereafter prolonged by the
respondent's continued refusal to bargain.
2. The discriminatory refusal to reinstate the strikers
The complaint alleged, and' the respondent's answer denied, that
the respondent refused to reinstate, despite their applications, the
employees named in Schedule A hereof. In addition to those em-
ployees listed in Schedule A, the respondent also refused reinstate-
ment to Evans, Ealey, Clark, Ousley, Toney, Gamble' Ketterer, Pen-
nington, Jacobs, Brown, and Keuhne,•all of whom had been laid off
on October 4 and thereafter joined the strike.
All' the employees named in Schedule A, except R. Cooper and
Ernest C. Jacobs,17 went out on strike on October 4, 1937. Jacobs
was foreman of the retort and adz mills. He was not a member of
the Union, but was a member of the Brotherhood of Railway Train-
men. Two or three weeks befgre'the strike, Superintendent Brown
asked` him if he would work strikebreakers in his departments in the
event of a strike. 'Jacobs told Brown that he, would not do so. On
October 5 Jacobs notified Brown -that he could not work while a
strike was in progress. He left the plant that day and joined
the strike. '
17 Incorrectly named in the complaint as Ernest P. Jacobs.
N
AMERICAN CREOSOTING COMPANY , INCORPORATED 253
- -Robert°--Cooper -had=.been a - foreman of construction - work;' on
October= 4,11937;-'he was a fireman and watchman.: ,He joined, the
Uriion• 'and : the "'strikers ,on November _7 and -thereafter served as
a picket.
The Union ;did not immediately establish a picket line. From
October 4 to December 13, 1937, the respondent permitted the em-
ployees to use its premises in the conduct of the strike. On the
premises 'was a clubhouse with rest room, heating and recreation
facilities. - The strikers, without, objection,. used the clubhouse for
their personal comfort, even to the extent :of serving dinners.
On December 13, 1937, the respondent reopened its plant for opera-
tions. The strikers were ordered to leave the premises by the sheriff
of Greenup County, Kentucky. They immediately complied with the
order, and, established a picket line outside the plant, with head-
quarters in a small building which they erected contiguous to the-
plant premises. Armed guards employed by the respondent patrolled
the, premises. Some new men and some men who had on occasions
prior to the strike worked for the respondent were hired to take the
jobs of strikers. There was no violence in connection with the con-
duct of the strike.
Following -the reopening of the `„plant, at conferences between the
Union and the respondent, the respondent reiterated its offer to
return striking employees to work without granting any of the Union's
demands. The last of these conferences took place about December
22, 1937, in the office of the respondent. After Attorney Gardner
again invited the employees to resume work, the employees, at a
meeting -of the Union, voted to abandon the strike and return
to work.
On the morning of December 23, the strikers, including the em-
ployees named in Schedule A, appeared in a body at the,gates of the
plant and applied for reinstatement to their former positions. Super-
intendent, Brown was notified that ,they were there,, ready, for work.
He sent Foreman Elkins out to take the names of,all the strikers.
Elkins did so and returned with the list to the office. There, Brown,
and S. E. Cooke, assistant to the-general superintendent, selected
from the list the names of some of the strikers who were to be given
immediate employment. ' Those men were so notified, and as they
started for their posts of duty, they were admonished by Cooke to
"leave theU nion on the outside, toy not even talk it in the plant at
all...." The strikers who were not reinstated on that day were
assured by Brown,-Cooke, and Elkins that they'would be summoned
and reinstated as operations in the plant progressed. As of the date
of the hearing, none of the persons named in Schedule A herein had
been, summoned, or reinstated by the respondent.': , - - ' -
254 DECISIONS OF' NATIONAL; LABOR , RELATIONS,. BOARD
About. 93,-of the respondent's employees .went out on-strikC -7,c Ap-
proximately 52 of-the strikers ;were reinstated; at one time or another.,
about 41, strikers-lad, -riot, been reinst,,tec as-of,zthe,-dateL-of 'the-
hearing 18
The respondent took the position at the.hearing that the,strikers
were, not, reemployed because of-reduced operations and, labor -saving
technical improvements. It is true that in general the level of em-
ployment, was lower after the strike than before. Thus,, excluding
watchmen or guards hired for the strike, whose number tapered off
after the strike, the number .,of employees for 'the week ending
October 7, 1937, was 105, as compared with 85 for the 'wedk ending
December 31, 1937. ,
But the lower level of employment ,after the strike does not ade-
quately explain the failure to return the strikers to their jobs. Since
the strike, as we have found, was caused and prolonged by-the,
respondent's unfair labor practices, the respondent was under a duty
to reinstate the, strikers displacing; if necessary, all persons who had
been hired to take their places, and'to give preference to thestrikers
over new applicants for employment.19 This duty the respondent
refused to perform.
During the strike, the respondent hired about 14 new employees
and 3 former employees all of whom worked on and after'December
23, 1937., These former employees had not worked for the respondent
for at least 30 days prior to October 4, 1937. One of them had not
worked for the respondent since 1929. Under the circumstances, we
find that the-former employees had no substantial expectancy of re,
employment and-were in the same position as new employees.
Of the approximately 85 20 strikers who offered themselves for work
on December 23, 'only about 13 were chosen immediately; an• addi-
tional 25 were selected' by December 31, and the remaining, 6 who
were-reinstated were put to work between January' and March 1938:
No new employees.added during the strike were displaced to make
room for the strikers, either on December 23, 1937, or at any time
thereafter., Moreover, strikers were passed over in the filling of va-
cancies. At different times after the strike at least 53 former 21 and
60 new 22 employees were added to the working force.
"This number includes Roy Nichols discussed below , 11 employees laid off from the adz
mill and "black crane ," and the 28 persons listed in Schedule A '
nBlack Diamond S S Corp v N L R B, 94 F ( 2d) 875 (C. C. A. 2) cert. den. 3044
S. 579; Rapid Roller Co. v. N. L. R B, 125 F. (2d) 452 (C. A A. 7), cert. den. October
12, 1942: . .
20 About eight strikers returned to work before December 23, 1937.
21 Like the persons described above , these persons either had not worked for the respondent
for at feast a month before the strike , or in several instances ,' had their employment termi-
nated during that period . We find them to be new employees. - -
22 Of this number, about 57 were hired as tie handlers . The respondent introduced evi-
dence that tie handling was a job requiring peculiar skill and that none of the persons in
AMERICAN CREOSOTING COMPANY, INCORPORATED 255
This resultwas clearly indicatedby, the respondent's position regard-
ing reinstatement as enunciated at conferences with the Union before
the eiid of the strike. At one of these conferences. held' shortly. prior
to the' termination of the, strike, the respondent expressly stated that
it would not release persons who had come to work during the strike
in order to make room for strikers. The, record shows that strikers
were not considered for positio'ns that were filled.
The respondent's intention- to discriminate against, strikers is
further evidenced by the following occurrences. , As set forth above,
when Thomas Compton, a striker, applied without success to Foreman
Elkins for his job shortly after the termination of the strike, Elkins
said: "I told you when you joined the C. I. O. that you would lose
your job. . . ." M. Gamble, a member of the laid-off adz mill crew,,
testified that about 3 or 4 months after the strike he asked S. E. Cooke,
assistant to the general' superintendent, for reinstatement and that
Cooke answered : ". . . we don't need anybody now, I told the boys
they ,were making; a, mistake when they joined the union; that they
would lose out." Cooke testified that he told Gamble there was no
need fork him, but, denied making any mention of the Union. _ Upon
the entire record we credit the testimony of Gamble.
We find that the refusal to reinstate the strikers listed in Schedule A
and employees Nichols 2 Evans, Ealey, Clark, Ousley, Toney, Gamble,
Ketterer; Pennington, Jacobs, Brown, and Keuhne constituted a dis-
charge'for engaging in concerted activity in behalf of the Union.24
We find that, on and after December 23, 1937, the respondent, by
its refusal to reinstate the strikers listed in Schedule A, and employees
Nichols, Evans, Ealey,. Clark, Ousley, Toney, Gamble, Ketterer, Pen-
nington, Jacobs, Brown, and Keuhne, has discriminated against such
employees in regard to their hire and tenure of employment, thereby
discouraging membership in the Union and interfering with, restrain-
ing, and coercing its'employees in the exercise of the rights guaranteed
'in Section 7 of the Act.
E. The alleged discriminatory discharge of Roy Nichols
The complaint alleged, and the respondent's answer denied, that
Roy Nichols had been discharged on November 1, 1937, and thereafter
refused reinstatement, because of his union membership and activity.
Schedule'A was capable of do.ng such work ' Brown also te.tfied, that in May 1940 the
union negotiating committee refused jobs as tie handlers On the other hand, no earlier
offer was made to any strikers and at least some men hired as tie handlers were transferred
,lo other positions Upon the entire record' we' sbare the Trial Examine,'s• disbelief of the
respondent 's contention concerning the bass of its preference for new employees.
is N.,L R B v Acme Au Appliance Co , 117. F (2d) 417 (C C A 2) , Rapid Roller Co
v N L R B, 126 F. (2d) 452 (C C A 7), cert den October 12, 1912
14 See Secticn E. infra.
256 DECISIONS" OF NATIONAL, LABOR RELATIONS BOARD
Roy Nichols, an active .member and vice president of the Union,
worked as a fireman for the respondent. When the respondent's em-
ployees went out on strike on October 4, 1937, he joined the ;strikers.
By agreement between the Union and the respondent, Nichols was
permitted to resume ,his duties as fireman during the strike to ensure'
effective operation of fire protection machines.
About November 1, 1937, the coal supply in the boiler room, was ex-
hausted and the respondent demanded that Nichols wheel in coal from
the outside, a function outside-the scope of his regular duties. Nichols
refused to do so upon the instruction of the union committee. • It was
the position of the Union, made known to the respondent at that time,
that if the respondent needed someone to haul coal it should hire one
of the strikers at the wage rate proposed by the Union on September 7,
1937. The respondent thereupon paid Nichols off, and he rejoined the
strike.
Under the circumstances, we find that Nichols was not\discharged
on November 1, 1937, but that he voluntarily terminated the arrange-
ment under'which he had been permitted to work during the strike.
He thereby resumed his status as an unfair labor practice striker.2,
As such, he, along with the other strikers, applied -for, and was dish
criminatorily refused, reinstatement on December 23, 1937.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
curring 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 designed to effectuate the policies of
the Act.
We have found that the respondent has refused to bargain collec-
tively' with the Union as the exclusive representative of its employees
in an appropriate unit. We shall order that the respondent, upon
request, bargain collectively with the Union as such representative
and that, if an understanding is reached, the respondent embody said"
understanding in a signed written contract.26
25 Cf Matter of Polish National Alliance etc, and Office Employees Union No. 20372 (AFL),
42 N. L. It. B. ] 375
26 As to the respondent 's claim that the Union had lost its majority status, see discussion
in footnote 12, supra.
AMERICAN CREOSOTING COMPANY, INCORPORATED ° 257
We have also found that the respondent discriminated in regard to
the hire and tenure of employment of Frank McKenzie. We shall
accordingly order the respondent to offer him immediate and full
reinstatement to his former or substantially equivalent position with=
out prejudice to his seniority or other rights and privileges.
. We have found that the employees listed in Schedule A and Roy
Nichols, Edward Evans, Ben Ealey, William, Clark,' G. C. Ousley,
D. Toney, M. Gamble, F. Ketterer, W. Pennington, A. Jacobs, A.
Brown, and A. Keuhne ceased work on October 4, 1937, and did not
work thereafter as a consequence of the respondent's unfair labor
practices, and that, on December 23, 1937, and thereafter, the respond-
ent discriminated against them in regard to their hire, tenure, and
terms and- conditions of employment. We find that, to remedy the
unfair labor practices causing the strike, as well as the subsequent
unlawful discrimination, reinstatement with back pay should be
ordered, as .below specified. The reinstatement of these employees
shall be effected in the following manner :
All employees 27 hired after October 4, 1937, shall, if necessary
to provide employment for those to be offered reinstatement, be' dis=
missed. , If, thereupon, by reason of a reduction in force there is not
sufficient employment immediately available for those to be offered
reinstatement, 'all the available positions shall be distributed- among
the remaining employees in accordance with the respondent's' usual
method of reducing its force, without discrimination against any
employee because of his union affiliation or activities, following a sys-
tem,of seniority to such extent as has heretofore been applied in the
conduct of the respondent's business. Those employees remaining
after such distribution, for whom no employment is immediately
available, shall be placed upon a preferential list prepared in accord-
ance with the principles set forth in the previous sentence, and shall,
thereafter, in accordance with such list, be offered employment in their
former or substantially equivalent positions, as such employment
becomes' available and before other persons are hired for such'work.
We shall order that the respondent make whole Edward Evans,
Ben Ealey; William Clark, G. C. Ousley, D. Toney, M. Gamble, F.
Ketterer, W. Pennington, A. Jacobs, A. Brown, and A. Keuhne, the
employees named in Schedule A, herein, and Roy Nichols for any loss
of pay they have suffered by reason of the respondent's unfair labor
practices by payment to each of them of a sum of money equal to
that which he 'normally would, have earned as wages from the date
of the discrimination against him to the date of the offer of reinstate-
ment, less. his net earnings 28 during' that period.
27 "All employees " must betaken to exclude strikers who returned to work before December
23, 1937 , but to • include former employees employed during or after the'strike.
' 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 elsewhere
504086-43-vol. 46-17
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Frank McKenzie was discharged on December 15, 1936,
his name did not appear , in any charges filed with the Board until
August 4, 1938. The ,record reveals no extenuating circumstances for
this delay , and we shall consequently order that the respondent snake
him whole for any loss of pay he may have suffered during the period
from August 4, 1938 , to the date of the offer of reinstatement , less his
net earnings during such period.29
In its supplemental memorandum submitted in lieu of oral argu-
ment the respondent urged that persons who had engaged in alleged
sit-down strikes should not be entitled to reinstatment . We find that
this contention , which was not' advanced earlier, is an afterthought
without merit 30 The employees who engaged in the stoppages of
September 24 and October 4 , 1937, and those who participated in the
strike which began on October 4 , 1937, did not remain on the respond-
ent's premises in opposition to any request for their removal. The
respondent made no objection to ,their use of its grounds . When, on
December 13, 1937 , the strikers were asked bylthe local sheriff to va-
cate the property of the respondent , they immediately complied.
Moreover , the respondent itself reinstated many employees who had
engaged in the stoppages of September 24 and 25 and in the strike com-
mencing October 4 . We find, consequently that the policies of the Act
would not be effectuated if the strikers were denied reinstatement.
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. Oil Workers International Union, Local 379, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. All production employees employed by American Creosoting
Company, Incorporated, at its Russell plant, excluding supervisory
and clerical employees, constituted at all times material herein and
now constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b).of the Act.
3. Oil Workers International Union, Local 379, affiliated with the
Congress of Industrial Organizations is, and at all times since March
than for the respondent , which would not have been incurred but for his unlawful discharge
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 per-
formed upon Federal, State , county, municipal , or other work-relief projects shall be con-
sidered as earnings See Republic Steel Corporation V N. L. R B., 311 U S 7.
21 Matter of Inland Lune and Stone Company and Quarry Workers International Union,
8 N L. R B. 944; Matter of Crowe Coal Company and United Mine Workers of America,
9N L.R B.1149 ,enfd,104F (2d) 634 (C C A 8)
Matter of Kentucky Firebrick Company and United Brick and Clay llorke,s of America.
Local Union No 510, 3 N L R B 455, enf d, 99 F (2d) 89 (C C A. 6).
AMERICAN CREOSOTING COMPANY, INCORPORATED 259
19, 1937, has been, the exclusive representative of all the employees in
the above unit for the purposes of collective bargaining,, within the
meaning of Section 9 (a) of the Act.
4. By refusing on March 19, 1937, and at all times thereafter to bar-
gain collectively with Oil Workers International Union, Local 379,
affiliated with the Congress of Industrial Organizations, as the exclu-
sive representative of the employees in such unit, the respondent has
engaged in and-is engaging in unfair labor practices, within the mean-
ing of Section 8 (5) of the Act.
5. By discriminating on and after December 23, 1937, in regard to
the hire and tenure of employment of Frank McKenzie, Edward Evans,
Ben Ealey, William Clark, G. C. Ousley, D. Toney; M. Gamble, F. Ket-
terer, W. Pennington, A. Jacobs, A. Brown, A. Keuhne, the employees
listed in Schedule A here, and Roy Nichols, thereby discouraging mem-
bership in Oil Workers International Union, Local 379, affiliated with,
the Congress of Industrial Organizations, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
6. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce; within the^meaning.of Section 2 (6) and (7) of
the Act.
8. The strike which began on October 4, 1937, was caused and pro-
longed by the respondent's unfair labor practices.
9. The respondent did not discriminate against Edward Evans, Ben
Ealey, William Clark, G. C. Ousley, D. Toney, M. Gamble, F. Ketterer,
W. Pennington, A. Jacobs, A. Brown, and A. Keuhne on October 4,
1937.
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,
American Creosoting Company, Incorporated, Russell, Kentucky, and
its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with 'Oil Workers Interna-
tional Union, Local 379, affiliated with the Congress of Industrial Or-
ganizations, as the exclusive representative of its production employees
employed at its Russell, Kentucky, plant, excluding supervisory and
clerical employees; ,
(b) Discouraging membership in Oil Workers International Union,
Local 379, affiliated with the Congress of Industrial Organizations, or
in any labor organization of its employees, by discriminating in regard
0
260 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
to their hire and tenure of employment or any other term or condition
of their employment;
(c) In any other manner interfering with, restraining or coercing
its employees in the exercise of the right'to self-organization, to form,
join or assist labor organizations, to bargain collectively through rep-,
resentatives of their own choosing, and to engage in concerted activi-,
ties 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 Oil Workers Interna-
tional Union, Local 379, affiliated with the Congress of Industrial Or-
ganizations as the exclusive represenative of its production employees
employed at its Russell, Kentucky, plant, excluding supervisory and
clerical employees, in respect to: rates of pay, wages, hours of employ-,
ment and other conditions of employment, and if an understanding is
reached on any of such matters, embody said understanding in a signed
written contract;
(b) Offer to Frank McKenzie immediate and full' reinstatement to
his former or, substantially equivalent position without prejudice to
his seniority or other rights and privileges;
(c) Offer to Roy Nichols, Edward Evans, Ben Ealey, William
Clark, G. C.' Ousley, D. Toney, M. Gamble, F. Ketterer, W. Penning-
ton, A. Jacobs, A. Brown, A. Keuhne, and the employees listed in
Schedule A immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority .or
other rights and privileges,., in the manner set forth in the section
entitled "The remedy," placing those employees for whom employ-
ment is not immediately available upon a preferential list in the manner
set forth in said section, and thereafter, in said manner, offer them
employment as it becomes available;
(d) Make whole Edward Evans, Ben Ealey, William Clark, G. C.
Ousley, D. Toney, M. Gamble, F. Ketterer, W. Pennington, A. Jacobs,
A. Brown, A. Keuhne, Roy Nichols and the employees listed in Sched-
ule A for' any loss of pay they may have suffered by reason of the re-
spondent's discrimination in regard to their hire and tenure of employ-
ment, by payment to them of a sum of money equal'to that which each
,Of them normally would have earned as wages, from the date of the
respondent's discrimination to the date of the offer of reinstatement,
less his net earnings during this period;
(e) Make whole Frank McKenzie for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment by payment to him of a sum of money
equal to that which he would normally have earned as wages, from
AMERICAN CREOSOTING COMPANY, INCORPORATED 261,
August 4, 1938, to the date of the offer of reinstatement , less his net
earnings during that period ;
(f), Post immediately in conspicuous places throughout its plant at
Russell, Kentucky, and maintain for a period of at least sixty (60)
consecutive days from the date of posting , notices to its employees,
stating that ( a) the respondent will not engage in the conduct from
which it has been ordered to cease and desist in paragraphs 1 (a), (b),
and (c ) hereof; (b) that it will take the affirmative action set forth
in paragraphs 2 (a), (b), (c), (d), and (e) hereof; and (c) that the
respondent 's employees are free to become or remain members of Oil
Workers International Union, Local 379, affiliated with the Congress
of Industrial Organizations , and that the respondent will not dis-
criminate against any employee because of membership or activities in
that organization;
(g) Notify the Regional Director for the Ninth Region, within
ten (10 ) days from the date of this Order what steps the respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent has discriminated
against M. Rhoden, J. Potter, and J. McGuire , within the meaning of
Section 8 (3) of the Act.
SCHEDULE A
R. Adams
Ed Albright
F. Brown
J. Brown
Frank Burton
Edward Clark
M. Coburn
T. Compton
R. Cooper
W. Dillon
B. Gibson
I. Gibson
Walas Greathouse
Lewis Green
D. Howes
Ernest C. Jacobs
W. M. Jones
J. E. Lewis
N. Lewis
D. J. McCarty
B. Morris
C. Roark
C. Smith
H. Smith
G. Spradlin
H. Westfall
C. Wright
F. Wright
i