American Rolling Mill Co.

National Labor Relations Board - Board Decisions

Sep 8, 1942

43 N.L.R.B. 1020 (N.L.R.B. 1942)

In the Matter of AMERICAN ROLLING MILL COMPANY, MIDDLETOWN, OHIO
and STEEL WORKERS ORGANIZING COMMITTEE LOCAL No. 1865,,AFFIL-,
IATED WITH THE COMMITTEE] FOR INDUSTRIAL ORGANIZATION, ASHLAND,
KENTUCKY
Case No. C-14196.-Decided September 8,194
Jurisdiction : steel manufacturing industry.
Unfair Labor Practices
Into ference, Restraint, and Coercion: vilifying, ridiculing, and denouncing
unionism; shadowing union organizers ; surveillance of union meetings and
of visits by employees to union headquarters ; pilfering union records ; inter-
rogating employees and seeking information as to their membership and that
of others in the union; threatening employees as to adverse consequences of
union membership and activities upon their jobs ; compelling and enticing
employees to resign or to refrain from joining the union and. to refrain
from engaging in union or other concerted activities; encouraging employees
to support the dominated Plan, and inciting them against other unions and
their organizers
Companij-Dominated Union: employee representation plan organized, spon-
sored, supported, and controlled by employer prior to effective date of Act;
continuation thereof without material change following effective date of Act
as to the manner of its administration, including employer's participation, aid,
and support therein.
Discrimination: charges of alleged refusal to hire one person, dismissed; dis-
charges, demotions, transfers, and lay-offs because of union membership and
activities.
Testifying Under Act: discharge of one person because of his union member-
ship and activity and because he had given testimony under the-Act adverse
to 'respondent's interests.
Remedial Orders : dominated organization disestablished; employees ordered
reinstated to positions each would have been entitled to hold or receive but
for the discrimination ; back pay awarded for losses suffered by reason of
-discrimination.
Mr. Oscar Grossman, Mr: William S. Gordon, Mr. Philip G.
Phillips, and Mr. Alan Perl, for the Board.
Mr. Donald R. Richberq, of Washington, D. C., Caldwell & Gray
and Mr. Jack Woods, of Ashland, Ky., and Frost cQi Jacobs, of Cin-
cinnati, Ohio, for the respondent.
Woods, Stewart & Nickell, of Ashland, Ky., for the Plant.
Mr,. Benjamin C. Sigal, of Pittsburgh, Pa., and Mr. Lee Pressman,
of Washington, D. C., for the S. W. O. C.
Mr. Sidney Sugerman, of counsel to the Board.
43 N. L R B No 181.
,1020
AMERICAN ROLLING MILL COMPANY - 1021
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by Steel Workers Organizing
Committee, Local No. 1865,1 herein called the S. W. O. C., the Na-
tional Labor Relations Board, herein called the Board, by the
Regional Director for the Ninth Region (Cincinnati,, Ohio), issued
its complaint dated May 31, 1938, against American Rolling M ill
Company, Middletown, Ohio, herein called the respondent and some-.
times Armco, alleging that at its plant in Ashland, Kentucky, the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
and (3 ) 2 and Section 2 (6) and (7) of the National, Labor Rela-
tions Act, 49 'Stat. 449, herein called the Act. The complaint, with
a copy of the second amended charge annexed, and a notice of hearing
were duly served upon the respondent and upon the S. W. O. C.
In respect to the unfair labor practices, the complaint as amended
alleges (a) that on or, about, October 1, 1933, the respondent formed
and, at all times since July 5, 1935, has in various ways dominated
and interfered with the administration of Ashland Armco Plan of
Employee Representation, a labor organization, herein called the
Plan, and has contributed financial and other 'support to -it; (b) that
on or about August 1, 1936, and thereafter, the respondent encour-
aged membership in the Plan and discouraged membership in any
other labor organization by refusing to employ Harold Kirkman
because his father opposed the Plan and the respondent's efforts to
thwart union organization among the employees; (c) that between
February 3 and June 2, 1938, the respondent demoted 7 named em-
ployees or gave them jobs less desirable or less remunerative than
those they had held or were entitled to hold or receive, as against
other favored employees; and between July 6, 1937, and September
1 On or about January 27 , 1941, a motion was 'filed with the Board on behalf of Amal-
gamated Association of Iron , Steel and Tin Workers of North America and of Steel
Workers' Organizing Committee to amend the caption and portions of the record in this
case to designate the latter union as foimal party in interest to the proceeding in place
and stead of the former. American Rolling Mill Company opposes the motion on the
ground that the Amalgamated is not a party The motion is evidently based on the
erroneous assumption that the Amalgamated is a' party . The pleadings and proof establish
the S . W. 0 C. as the only union involved . Insofar as the pending motion seeks to coirect
the caption by more change of that union 's proper name to "Local Union No 1865, Steel
Workers' Organizing Committee ," the motion is granted , in all other respects, denied.
2 During the course of the hearing , upon the filing of further amendments to the charge
by the S . W O.'C., and upon motion of ' the Board 's attorneys , the complaint was amended
so as to allege , among 'other additional things, that the respondent had engaged in and
was engaging in unfair labor practices , within the meaning of Section 8 ( 4) of the Act.
•"ii
1022 DECISIONS 'OF- NATIONAL- LABOR- RELATIONS BOARD
7, 1938, terminated the employment of 29 other named employees
and has refused them reinstatement, because of their union member-
ship and activities, thereby discouraging membership in a labor
organization; (d) that on February 1, 1939, the respondent termi-
nated the employment of John Fultz and has refused to reinstate
him because of his union membership and activities, and because he
had testified in this proceeding as a witness on behalf of the Board,
thereby discouraging membership in a labor organization, and dis-
criminating against Fultz because he had given testimony under the
Act; and that, by all the foregoing, and by engaging in surveillance,
threats, vilification, and numerous other specified anti-union acts, as
well as by sponsoring the organization of employee groups, known
as the Armco Employees' Protective Association and the Loyal
Armco Workers League, to endorse and support the Plan and to pre-
vent unionization of its employees, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Before the hearing the respondent filed several motions with the
Regional Director, all of which he denied without prejudice except
the motions for additional time to answer and for a continuance
which he granted. - -
On June 11, 1938, the respondent filed its answer with the Regional
Director and on June 27, 1938, at the opening of the-hearing, filed a:
supplemental answer. From time to time during the hearing as the
complaint was amended, the respondent filed further answers to the
ahiendments thereto.
On July 15, 1938, at the hearing, the Plan filed a motion for leave
to intervene in the proceedings and to file an answer to the complaint.
Such leave was granted and the Plan filed its answer on July 22,
1938 4
The answer of the respondent, as supplemented and from time to
time amended, alleges that the Plan is not a labor organization at
all,5 within the meaning of the Act, but is merely the product, in the
nature of an agreement, resulting from the collective bargaining
' On unopposed motions of the Board 's attorneys made at various stages of the hearing,
the complaint was dismissed in so tar as it alleged discrimination against the following
1:3 employees in this group • Herbert Lee, Lloyd Hatton, Hobart Caudill, James McNurlin,
William Daniels , William, H Flanagan , Edward Franz, Richard Scott , Rex Deal, John
Mapes, James Stilton , Harvey Douglas , and Hari icon Bryant . On the respondent's motion,
atter full trial on the meiits, the complaint was also dismissed , over opposition of the
Board s attorneys , as to Clarence Ezell, whose case is reviewed herein
'The motion was made and the answer was filed in the name of the Ashland Armco
Employee Representatives,,acting through ,the officers of the Employees Executive Com-
m,ttee of the Plan We do not differentiate , except as may appear textually , between the
Plan and its Employee Representatives.
6 While a like contention is implicit . in the Plan's answer , perhaps anomalously it alleges'
that "more than 90 % of the (respondent ' s) eligible employees .. . belong to the Ashland'
Armco Employee Representatives . . [ Italics supplied].
i
AMERICAN ROLLING MILL COMPANY 1023
efforts of the respondent and its employees acting through representa-
tives-of their own choosing. Denying that it has dominated or.inter-,
fered with the formation or administration of the Plan, or contributed
financial or other support to it, the respondent admits that it has
participated. in the administration of the Plan, but only in the sense
and to the extent that it thereby fulfilled its contractual obligations
to the employees. The respondent's answer further denies specifically
the various allegations as to its commission of acts of discrimination
and of encouragement or discouragement of membership in labor
organizations, and of acts of interference, restraint, and coercion. By
its supplemental answer, the respondent contends that on June 16,,
1937, it effected a settlement with the Regional Director of matters
contained in a charge theretofore filed by the S. W. O. C. In partial
bar of this proceeding, the' respondent alleges its compliance with
the prospective requirements of the settlement agreement.
The answer of the Plan, in the main, denies the allegations of the
complaint as to the respondent's domination and interference with the
formation and administration of the Plan; as to the respondent's
encouragement of membership in the Plan; and as to the respondent's
interference with, restraint, or coercion of its employees in the exer-
cise of the rights guaranteed in Section 7 of, the Act. Affirmatively,
the Plan contends that the vast majority of the employees are "sat-
isfied with their employment, wages and all conditions of work," with
the Plan,, and with their relations through the Plan with the
respondent.
Pursuant to a notice duly served upon the respondent and the
S. W. O. C., and after several continuances, a hearing was held at
Catlettsburg, Kentucky, from June 27, .1938., to May 19, 1939, and
from May 25 to 27, 1939, and at Ashland, Kentucky, from May 22
to 24, 1939, before George Bokat, the Trial Examiner duly desig-
nated by the Board. The Board, the respondent, the Plan, and the,
S. W. O. C. were represented at the hearing by counsel; all partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties.
At the outset of the hearing, the respondent renewed before the
Trial Examiner its several motions previously denied without prej-
udice by the Regional' Director. The Trial Examiner denied such
motions to, strike certain allegations of the complaint ; to make more
definite, and certain; for a bill of particulars; for transfer of the
place of hearing from Catlettsburg to Ashland, Kentucky; and for
production of the original and first amended charges filed by the
S. W. O. C. At the same time, the Trial Examiner granted the
respondent's motion, and from time to time during the course of the
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing .granted the respondent's further motions, to strike certain
other allegations of the complaint. Also from time to time, the Trial
Examiner granted the motions' of the Board's attorneys to amend
the complaint by striking certain of its allegations. During the.
course of the hearing the Trial Examiner made rulings on numerous
other motions and on numerous objections to the admission of evi-
dence. The Board' has reviewed all the rulings of the Trial Exam-
iner and finds that no prejudicial errors were-committed. Except
as herein expressly noted, the rulings are hereby affirmed.
The Trial Examiner reserved rulings upon several motions and
objections made at the hearing. After the hearing had' been closed
subject to inclusion in the record of certain specified matters to be
submitted to the Trial Examiner at Washington, D. C., the parties
duly filed between June and August 1939, various documentary ex-
hibits which they offered in evidence, objections thereto in writing,
and further motions. The Trial Examiner reserved rulings there-
upon. The Board grants the respondent's motion to dismiss the
amended complaint as to Harold Kirkman and Delbert S. McKnight,
whose- cases are reviewed herein. All other motions and objections
upon which rulings were thus reserved are hereby respectively denied
and overruled.
On February, 28, 1940, the Board, acting pursuant to National
Labor Relations Board Rules and Regulations-Series 2, as amended,6
ordered that the case be transferred to and continued before the
Board; that no Intermediate Report should be issued by the Trial
Examiner; that Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order should be issued by the Board; and
further, that the parties should have the right, within twenty (20)
days from the receipt of said Proposed Findings of Fact,'Proposed
Conclusions of Law, and Proposed Order, to file exceptions, to request
oral argument before the Board, and to request permission to file a
brief with the Board.
Respectively on May 4 and 20, 1940, the attorneys for the respond-
ent and the Board filed motions to correct the transcript of testimony
taken at the hearing. On May 27, 1940, the Board, ordered said
motions to be referred for rulings to George Bokat, the Trial Ex-
aminer who had conducted the hearing. On October 9, 1940, the
Trial Examiner made an order variously granting and denying said
motions in parts, and directing the physical correction of the tran-
script in conformity with the order.6a The rulings of the Trial
Examiner are hereby affirmed. I
6 Article II,, Sections 36 and 37. ,
as On October 21, 1940, the respondent filed with the Board a motion denominated
"Second Motion of Respondent to Supplement the Reccrd ," seeking to have made available
AMERICAN ROLLING MILL COMPANY 1025
On June 3,-,1940, the respondent filed with the Board - a -motion
labeled "Motion of Respondent to Supplement the Record." On
April 25, 1942,-the respondent filed another labeled "Third Motion'
of Respondent to Supplement the Record." The two_ motions Pare
of like tenor and object, the later one merely amplifying the. earlier
with supporting material at first entirely lacking. The motions seek
to have the Board "make available" certain communications between
and among various Board agents, had before and during the hear-
ing, so that the respondent "may be advised of the background of the
proceedings" and "complete the record." The communications are
sought for their possible use as proof that the respondent was denied
a fair and impartial hearing. There is nothing in the respondent's
moving papers to suggest such impropriety of conduct on the part
of the -Board's agents as would vitiate the proceedings heretofore
had in this case. The record discloses that the respondent had a full
hearing on the merits. The Board is deciding the case upon the
record only. The motions are denied.
On January 6, 1942, the Board issued and served upon all the
parties its Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order. Pursuant to Article II, Section 37, of the
Board's said Rules and Regulations, as further amended on Septem-
ber 6, 1941, the parties were given the right, within twenty (20) days
from the date of issuance of the Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order, to request oral
argument before the Board, and within thirty (30) days from the
date of issuance of the proposed Findings of Fact, Proposed Con-
clusions of- Law, and Proposed Order, to file exceptions and. a brief
with the Board.
The respondent having filed a motion with the Board on January
19, 1942, for an extension of its time to file exceptions and a,brief,
the Board, on January 23, 1942, issued its Order extending the time
of all parties to file exceptions and briefs until May 5, 1942.
On May 5, 1942, the respondent filed its exceptions to the Proposed
Findings of Fact, Proposed Conclusions of Law, and Proposed Order,
requesting oral argument before the Board thereon. None of the
other parties filed exceptions. , None of the parties filed a brief.
' Pursuant to notice, and after a postponement granted at the re-
spondent's request, a hearing for the purpose of. oral argument was
held before the Board in Washington, D. C., on July 23,-1942. The
to the respondent "memoranda ' supplied to the Tiial Examipet by the Official Reporter
and stated in the Trial Examinei 's said Order of October 9, 1940 , to have been considered
by him . On August 7, 1942 , the Boaid issued its Order granting said motion , and directing
that said "memoranda" be made a pact of the record of the case and that copies thereof
be made available to the respondent
481039-42-vol 43-65 • '
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, represented by counsel, presented its argument. None
of the other parties participated in the argument. - ,
The Board has considered-the exceptions, and, save as the excep-
tions are consistent with the findings, conclusions, and order set forth
below, finds them to be without merit. -
Upon the entire record in the case, the Board makes the -following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation having its principal place of
business at. Middletown, Ohio, is engaged in the, manufacture, sale,
and distribution of iron and steel products. It operates plants in Ohio,
Kentucky, and Pennsylvania, and maintains sales offices in Ohio, Michi-
gan, Illinois, and Pennsylvania. We are solely concerned, in this
proceeding, with the respondent's Ashland Division, a plant located in
the city of Ashland, county of Boyd, and in the adjacent county of
Greenup, in the State of Kentucky.
The principal product manufactured by the respondent at its Ash-
land Division is sheet iron. The principal materials used there in such
production are iron ore and scrap iron, of a total cost to the respondent
for the year 1937 of approximately $9,600,000. More than 75 percent
of said materials so purchased and used that year were obtained from
States other than Kentucky.
The value of the respondent's products at its Ashland Division for
1937 was about $22,000,000, more than 90 percent of which products
were transported by rail to purchasers in States other than Kentucky.
The respondent employs at its Ashland Division an average of about
3,000 persons. The average annual pay roll is approximately $5,600,000.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee, Local No. 1865,7 affiliated with
the Committee for Industrial Organization (now known as the Con-
gress of Industrial Organizations), herein called the C. I. 0., is a labor
organization admitting to membership persons employed in and around
iron and steel manufacturing, processing, and fabricating mills and
factories.
Ashland Armco Plan of Employee Representation is a labor organ-
iz7ation admitting to memberships all employees at the respondent's
Ashland Division. -
" See footnote 1, above.
sAlthough the Plan makes no provision-for admission to membership as such, the status
of employees within the defined structure and functions of the Plan is such as to fit the
common meaning of "membership "
AMERICAN ROLLINGI MILL COMPANY 1027
III. THE UNFAIR LABOR PRACTICES
A. Origin o l the Plan °
In January 1925 the respondent established at its seveial plants,
including the Ashland Division, a project of "cooperative management"
through the medium of The Arnico Advisory Committees. These com-
mittees, to be elected by the employees in each department of the plant,
had "no administrative, executive, or legislative functions." Their
function, as stated -by Charles R. Hook, the respondent's president,
was:
First, to advise with and learn the policies of the General Man-
agement.
Second, to convey to their fellow employees an understanding of
these policies and to reflect the sentiment of the members of their
departments on such matters as may be of help to the management.
In exercising this function, as elaborated by the respondent in
December 1928 and again in December 1932, the separate Departmental
Advisory Committees, acting through their respective "responsible
executives," and the locally supreme Works Advisory Committee, under
the chairmanship of the respondent's Works Manager, were to "take
up ... any matter that in their opinion is not being handled properly."
They might be called upon for advice, to make constructive suggestions,
or -"to consider any general problems concerning working conditions,
personal=matters, equipment, and production." As Hook summed it
up in a brochure on the subject, "the advisory committee . . . is a vehi-
cle by which Armco men can express their views, ask questions, and
make suggestions without feeling-or'prejudice and ,by which manage-
ment can freely give to the whole organization coiifidential and helpful
information on any subject, and simple explanations of intricate
business problems." ' '
The Advisory Committees continued to function in the Ashland
Division for 91/2 years. With the passage of the National Industrial
Recovery Act" in June 1933, and simultaneously with the initiation
of an organizing campaign at the plant by Amalgamated Association
of Iron, Steel and Tin Workers of North America, herein called the
Amalgamated, a labor organization then affiliated with the American
Federation of Labor, F. E. Vigor, works manager of the Division,
caused to be distributed to all employees a bulletin in, the foriil of a
letter under date of June 29, 1933. Iii this bulletin, purportedly in
9 For a comparable background and development of a similar plan of employee repre-
sentation at the respondent 's Zanesville , Ohio, plant, see National Labor Relations Board
V. American Rolling Mill Co., 126 F (2d) 38 (C. C A 6), enforcing as modified 27 N L It B.
441
\1o 49 Stat 195
1028 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
answer to questions raised by one of the employees, Vigor offered the
opinion of the respondent that the set-up of Advisory Committees
"contains' all of the elements necessary for adequate employee repre-
sentation for the purpose of collective bargaining" under the ne^v law.
Assuring employees of their hill rights, Vigor informed them that a
vote was to be taken as to whether that set-up should be continued.
Extolling its advantages, Vigor wrote : ". . . the Company-is asking for
an expression' of confidence and feels that the record of its dealings
with our employees for more than thirty years warrants such an'
expression."
At about the same time Hook visited the plant to address the super-
visory staff and the committees. He explained that he had originated
the plan some years before as a method of collective bargaining, and
though it had fallen to the state of a mere safety committee, it was
still his "pet idea" and he would not like to see it voted out of existence.
None the less, the vote taken on June 30, 1933, on the proposition that
the committee plan was satisfactory as a means of collective bargaining
showed 1,099 opposed, 343 in favor.
Shortly afterward, Vigor and his assistant, Roy S. Stalnaker, went
about the plant conferring with men in-the various departments and
shifts. On ascertaining the reasons for the adverse vote and expressing
their regret that the committee plan had not functioned properly,
Vigor and Stalnaker said they wanted to introduce another plan which
might be workable. Employees were- invited to drop written suggest
tions for such new plan into receptacles-provided by the respondent
and placed on its premises:
On July 18, 1933, the respondent published and furnished employees
with a four-page,, printed paper containing suggestions culled from
those submitted by the employees in the respondent's several plants and
general offices. On July 21, 1933, the management at Middletown is-
sued and Vigor distributed at the plant a paper, similar in format,
entitled "Proposed Armco Plan of Employee Representation," and stat-
Aing that it combined the various suggestions-received from employees,
as well as those contained in a number of plans in effect in other com-
panies, and that this proposed plan "gives the fullest representation
to the entire organization."
On July 27, 1933, Vigor issued instructions to the responsible execu-
tives of his- Division concerning their duties in the conduct of the
nomination and election of employee representatives, to serve in work-
ing out a satisfactory plan and developing agreeable district groupings
for future voting. Vigor set the dates of such elections, the qualifica-
tions of voters, the eligibility, of representatives, the manner of ballot-
ing, and the requirements for election. From July 28 to August 2,
1933, on the respondent's_premises, with equipment provided by the
AMERICAN ROLLING MILL COMPANY 1029
respondent,-and under its auspices, primary and final elections of such
representatives were held.
Tike representatives so elected met on August 8 with Vigor, who in
the meantime had learned to his surprise that the employees had in-
tended by their votes to scrap the Advisory Committees and to vest
such representatives with full power to deal with the respondent in all
matters on tlieir behalf, and'not alone for the limited purposes fixed
by Vigor. Supposing that employees might desire such representative
action because of their "diffidence or embarrassment or for some other
reasons," Vigor informed the representatives at that meeting that it
was nevertheless the respondent's policy to'encourage individuals to
handle their own affairs with management. With the shortcomings of
the Advisory Committees in mind, Vigor instructed the representatives
that they were to assume the functions which those committees had
neglected to perform.
Besides so circumscribing the capacity in which representatives were
to serve their constitutents, Vigor told them to get-up some kind of plan
to bargain through and how they might proceed to-work out the plan
on the ' basis of the respondent's proposals. Accordingly, the repre-
sentatives met from' time to time through August and' September, keep-
ing in touch with Vigor on their progress and calling him into their
meeting when in difficulty. The respondent's proposed plan' was de-
liberated upon, paragraph by paragraph. Of some 16 revisions sug-
gested by the representatives, and submitted by Vigor to the vice
president- of the Company at Middletown for consideration, the re-
spondent at a meeting on October 30, 1933, accepted 2, consented to
eliminate 2 of its own proposals, and rejected the remainder. .
Among the representatives' suggestions rejected by the respondent
was a provision for compulsory arbitration of, grievances which Vigor
disposed of with the remark that "many questions are not arbitrable."
Another, that the plan might be terminated by a majority of the em-
ployees by a secret ballot, he dismissed for lack of mutuality, insisting
that the respondent have equal power in that respect. Still another, in
four parts, for call-out pay, departmental seniority, overtime pay, and
full 8-hour pay, Vigor passed over with the summary statement that
such matters were not to be incorporated in the plan but left for nego-
tiation under its grievance adjustments machinery. Vigor remon-
strated with the representatives that they were telling management
how to do everything except make the pay roll. The dominant atti-
tude which Vigor assumed in the conference was signalized by his
statement: "Get out your pencils and you fellows mark out and make
additions as I make suggestions."
This last meeting closed with a call for another on November 6
at-which, it was stated, the revised plan as passed by the respondent
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be discussed, and an agreement' reached if possible. So little
was further discussion anticipated that the November 6 meeting
proved to be a mere ceremonial at which Vigor presented the final
draft of the plan to the representatives for their signatures. The
15-page document, in form and content substantially as the respond-
ent had proposed it, was published- by ittin adequate quantity for
distribution to all employees. Over the facsimile signatures of the
representatives was their assurance that the Plan would be acceptable
and their recommendation that -it be given a trial. Below their
signatures was the following :
To All Employees, Ashland Division
The Management, after consulting fully with your elected
representatives, is in accord with their recommendation re-
garding the foregoing Ashland ARMCO Plan of Employee
Representation. -
F. E. VIGOR (Signature)
Works Manager.
Indeed not all the employee representatives would sign the docu-
ment. Pressure was put on the recalcitrants by- supervision within
the next couple of weeks to secure their signatures. All but Charles
0. Pergrem,'their chairman, capitulated. He refused to the last to
affix his signature since the beneficial provisions suggested by the
representatives had been brushed aside by Vigor.
On November 28, 1933, at a meeting of management with employee
representatives, Vigor discussed the problems of the coming election
of representatives under the Plan for the year 1934, offering them-the
use of any facilities desired. On December 5 and 12, on the re-
spondent's premises and by ballots provided by it, the employees in
16 precincts laid out with the advice of Stalnaker nominated and
elected a slate of some 60 employee representatives. Such representa-
tives, by departments, were listed,' in an 18-page printed and covered
pamphlet containing the Plan, which was issued and distributed to
all employees by the respondent. On January 5, 1934, Vigor sent a
congratulatory note to each representative upon his election, adjur-
ing each as to his responsibility to fellow employees and management.
Over Vigor's opinion that by participating in elections the em-
ployees had ratified the Plan, Pergrem insisted that they had done no
such thing, as a yes-no vote on the question of adopting it had been
promised the men. When it was suggested that the vote ought rather
to be in the nature of an election between the Plan and "the outside
union," Vigor said "that as far as he was concerned there was no
outside union."
A yes-no vote was arranged for March 2, 1934, pursuant. to: recom-
mendation of the employee representatives, in which the respondent
AMERICAN ROLLING MILL COMPANY 103 t
concurred, in a notice distributed to employees. On that day the
employees voiced approval of the Plan by a vote of 1,715 to 622.
The voting was conducted sunder the sponsorship and with the active
encouragement of departmental supervision.,
The employee representatives, in the meantime, had no idea of a
program or of hoSv they were to function. Rather than turn to their
constituents fora mandate, they sought the respondent's advice. At
their meeting with management on January 18, 1934, Vigor outlined,
under the topical headings of Working Conditions, Personal Pro-
tection through Mutual Activities, and Community Affairs, items
-to which they might address themselves in developing a'program.
To crystallize' further their program, Stalnaker went about the plant
between January 24 and 27, attending each departmental committee's
meeting, leading its discussion's and making suggestions as to its
agenda. Thus does Vigor, account for the striking similarity in the
minutes of those meetings of the several committees during that
period.
B. The Plan
The preamble of the document which sets forth the Plan recites
"The management and the employees ... agree to this ... Plan ...
in order to provide an effective communication and means of contact
between the employees and the management on all questions regarding
the conditions and provisions of their employment." (Italics
supplied.) In form and content, the document is'not an agreement
at all, either in(narrow legal sense of a contract or-in the traditional
sense of a trade agreement."
The'document goes on to set forth in full Section 7 (a) and (b) of
the National Industrial Recovery Act, dedicating the Plan to com-
pliance with that law. In 10 enumerated sections the document pro-
vides in turn for electoral representation and districting within the
plant; for the qualifications of representatives and voters, while guar-
anteeing against abridgment of the right of employees "to belong or
not to belong to any lawful . . . union, or other organization." It
provides the procedure of nominating and electing representatives,
"with such assistance from the Management as the employees may
request"; their term of office and the manner of filling vacancies which
may occur, among other ways, as by the discontinuance of the rep-
resentatives' employment. Next is provided the set-up of various em-
ployees' committees, management representatives, and joint commit-
tees of the two groups. Management representatives, unlike employee.
representatives, are appointive. The former, to facilitate, close rela-
tionships between the management and employee representatives, are
31 See N . L. R. B. v . Highland Park Mfg. Co., 110 F. ( 2d) 632 (C. C. A. 4).,
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
_ I'equired to, "respond promptly to any request from representatives,
and shall iliterview all of them, from time to time, collectively or
separately, with reference to matters of concern to the employees."
The number of representatives from each side to their joint committees
may be equal, but management's may not exceed employees'. Power
to employ, suspend, discharge for cause, transfer, and lay off em-
ployees is reserved exclusively to'the respondent. Provision is made
for'separate meetings of employee representatives and for their joint
monthly meetings with management. Joint committee meetings, other
than those called by the employee representatives, shall be presided
over by a management representative, who shall supply minutes of the
meetings to each, member. All point committee meetings are provided
to be held during regular business hours. Besides providing, upon
request, a suitable meeting place for' all groups and committees,' the
respondent is also to indemnify-each employee representative, at his
average earning rate, for time necessarily lost from'rom work in attending
joint meetings.12 . -
The procedure for adjustment -of grievances is a six-step process
running from the employee's foreman up through the latter's succes-
s'ive superiors to a possible arbitration. ' On the way, the Works Man-
ager may refer the matter to one of the joint committees. If satisfac-
tion i's not had, the employee may notify the president of the Company.
Finally, "If the President and Employees Executive Committee agree
thereto, the matter shall be referred'to'one or more arbitrators to be
agreed upon at the time according to the nature of the discussion."
[Italics supplied.], 'The machinery of arbitration is more' definitely
assured to employee representatives aggrieved by any acts of dis-
crimination because of their conduct ih discharging their duties as
such. An' unsatisfactory decision by the president entitles them 'to
have the question settled by an arbitrator selected by mutual agree-
ment. Last of the provisions is that "this plan shall remain in effect
during the term ofAhe National Industrial Recovery Act and there-'
after may be terminated either by the Management or by a majority of
the employees upon three months' notice to the other. This agree-
ment may be amended by a two-thirds vote of the employees of the
Division voting thereon, the Management concurring ...'^ [Italics
supplied.]
There is no provision _in the Plan for the payment of dues by em-
ployees,- nor is any matter of finances touched on. No provision is
made, either, for the holding of meetings by employees themselves.
"Section VII, 9 of the, Plan reads • "An Employee Representative shall be paid at his
.average earning , rate by the company for time necessarily lost in attending any Joint or
Monthly General Committee meeting." - However in practice the respondent - pays the
representatives for time lost from work while attending any meeting on plan business,
whether management representatives are present ' thereat or not.
AMERICAN ROLLING MILL COMPANY 1033
C. Support of the Plan -
1.
In operating under the Plan, all elections have been, held - on the
respondent's premises and time, at its expense and with equipment
furnished by it. The respondent has provided and paid for dinners,
picnics, and small gifts for employee representatives. The latter, who
are charged with the duty of making safety inspections in their
respective departments, receive additional compensation for such serv-
ice amounting normally to 1 day's pay each month, at the rate of
time and one-half if done in overtime. The respondent has furnished
all stenographic help, paper, and equipment required to write up, and
the use of its intraplant mailing system for the delivery of, minutes of
all meetings conducted under the Plan. . '
Soon after the Supreme Court declared the Act constitutional in
April 1937,13 a meeting of employee representatives was addressed
by Vigor and the respondent's counsel, Robert T. Caldwell. Vigor
stated that under the law the respondent could no longer defray the
_expenses of the Plan and that some other means of financing,would
have to be adopted. He said that vending machines were being used
successfully at other places. Caldwell then added his opinion that
vending machines might be installed with impunity,. but that if that
financial device proved afoul of the law, something else would be tried.
At a subsequent meeting, on May 5, 1937, Frank Shepherd, Chair-
man of the Plan's Finance Committee, reported that such installations
throughout the respondent's plant were progressing rapidly. The
machines, dispensing cigarettes, candy, chewing gum, and peanuts,
were taken on lease from the Automatic Canteen Company, which
paid over to the. employee representatives a commission equal to 10
percent of its gross receipts therefrom. A rental amounting to 71/2
percent of their said commission was agreed to be paid by the employee
representatives to the respondent for the space occupied by the ma-
chines. It appears that they received a commission of $96.83 for May
sales, and of $93.09 for sales from June 1 to 15, 1937. Soon there-
after, upon Vigor's direction to discontinue such sales there, the em;
ployee representatives turned over that business, together with a milk
route they had established in the plant for additional revenues, to the
Ashland Armco Association. _
The latter is a benevolent organization maintained for' employees
since about 1923. Both the-respondent and the employees contribute
monthly sums to its sick and death benefit fund. Its affairs are
managed by a Board of Directors elected from among members of
I
11 N. L. R. B. V . Jones & Laughlin Steel Corp , 301 U. S. 1.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervision and, employee representatives. W. A. Richardson, its
secretary and treasurer,' is employed by the respondent as mutual in-
terest advisor attached to the employment and records department,
a position listed by the respondent as supervisory. 'The Ashland
Armco Association holds on lease from the respondent, for a nominal
rental of $12 per annum, the Armco Athletic Field'or ball park with
grandstands having a seating capacity of 3,200.
The Plan now derives its revenues from boxing exhibitions which it
sponsors at the ball park. For the use-of the premises and facilities,
the employee representatives pay to the Ashland Armco Association
an amount equal to 1 percent of the gate receipts. Admission charges
to such events range from 50¢ to $1.25 iti person, tickets being sold at
the respondent's pay window. Boxing matches run by the employee
representatives on June 10, 1938, grossed $1,278.53 in receipts.. Total
expenses amounting to $875.07 left a net profit of $403.46 to the Plan
on that venture. Two more such events were run by the employee
representatives in the summer of 1938 drawing substantial attendance
and comparable income. For the 1 percent return in rental to the
Ashland Armco Association the latter specially erected the boxing
arena and installed the necessary flood lights, with,,the respondent's
labor and materials, at a cost to the Association of about $400. On
March 14, 1938, Vigor had written to the employee representatives
'that "under present business conditions (he had) not been able to
get authorization from the General Management-for/the large expen-
diture necessary for lighting the ball park, but the ARMCO Associa-
tion is ... circulating petitions on this subject."
2.
At a meeting in 1934, probably on May 24, Kenneth C. McCutcheon,
assistant general superintendent of works, on learning that there was
some misunderstanding among employees, foremen, and employee
representatives in the open-hearth department, -tried to adjust the
difficulty. He told the respresentatives how to straighten the matter
out with their constituents and advised them, according to the uncon-
tradicted testimony of Wilbur Guy Kirkman,, to tell the employees
lies when necessary. Kirkman protested he would rather not have
the job if that was expected of him, to which McCutcheon replied,
"Oh, no, Guy; you misunderstand me. I did not mean damn lies;
I mean just little white lies, so that you can keep the men satisfied
until we (the management) can find a way to work out the differences,
so that we will have a better opportunity." " While this conversation
is not recorded in the minutes of the only meeting that year at which
McCutcheon' put in an appearance; but from which it appears that.
AMERICAN ROLLING MILL COMPANY 1035-
the subject was discussed, it is to be noted that the minutes of such
meetings are generally written up by the "responsible executive,"
sometimes, as in the case of W. G. Brobeek, superintendent of the
transportation and labor department, entirely from memory. In this
instance, the "responsible executive" was W. •P. Albaugh, superin-
tendent of the department, who has found that "usually (the elected
secretaries) feel it is embarrassing for them to take down the minutes
and write them up, and it is a considerable amount of work . . ."
Steps-were taken from the beginning to imbue the representatives
with a sense of their importance in the collective effort. They were
constantly being reminded by the management of the weight of their
responsibilities, and apart from the material gifts and favors be-
stowed on them, were as regularly congratulated upon their achieve-
ments. Some representatives were more susceptible to such blandish-
ments than others. Their suggestions in matters of safety were gen-
erally accorded earnest and appreciative consideration. Indeed, in
several instances they were expressly invited by the respondent top
make requests for certain repairs then planned to be made to the
premises,, some very costly, so that it might appear to their credit
that the action had originated with them. In fact, such procedure
was but an artifice to make it seem that the respondent's voluntary
acts were the exactions of a vigorous bargaining agency.
In matters other than safety, the representatives fared rather less
successfully, even superficially. Their grievances on other phases of
working conditions were given less attention by the respondent.
Still less concern was taken with their suggestion as to wages, hours,
rates of pay, (and work classification and placement. A§ time went
on, such matters were less frequently brought to the floor for dis-
cussion. That is not to say that wage increases, vacations, rate ad-
justments, and the like were not granted at all. In some cases they
were,-but usually only after the respondent had shown its effective
resistance by first rejecting the demands and closing the subject, after
which it might do the very things asked of it on a purely voluntary
basis. General wage increases, overtime pay, and vacation plans were
thus reserved by the respondent to be put into effect, just as in the
case of wage or force reductions, as a mere policy announcement.
3. -
The annual election of employee representatives of the Plan was
held in conjunction with-that of directors of the Ashland Armco Asso-
ciation. As supervisory employees were permitted both to vote for
and to serve as directors of the latter organization, there was always
free intermingling of supervisors and employees at and about the
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
polls. Balloting is done both in booths and at open tables.. Super-
visory. employees; at least in- some departments, cooperate to-round
up indifferent employees and-bring them in to vote, checking with
employee representatives, who are in charge of the conduct of the
ballot, for the names of voters not yet appeared. George H. Todd,
assistant superintendent of the open-hearth department, in a desire
to cooperate, went so far as.to bring a ballot out to the home of an
employee who had forgotten to vote. He pointed to the fact, how-
ever, that he did so under agreement with Alva Edwin Bush, an em-
ployee representative who at the time of the hearing was treasurer of
the S. W. 0. C. Kirkman observed Superintendent Albaugh calling
men-on the telephone at their homes and at other shops and saying,
"They are having an election over here. Come over and vote."
Philip Harold Gadd, who was a turn foreman in the shops main-
tenance department until September 10, 1938, when he was cut back
--to a non-supervisory position, had been called to the mill in 1933 and
directed by his' superior to call for several employees in his car and
get them to-vote. In that election Flaherty came into the shop and
read off a list of nominees for employee representatives whom he
regarded favorably, urging supervisory employees to do everything
in their power to have them elected.
Prior to the election of representatives for 1933 Flaherty called
a foremen's meeting to discuss which nominees would be favorable
to the respondent. ,Russell R. Smith, general superintendent of
works, addressed the meeting, opening with the remark 'that they
were going to talk of something that was "none of our damn busi-
ness." He-pointed out that the first six or seven nominees on.this
department's list were C. I. 0. men or favorably disposed toward
that organization ; that the, same situation existed in the open-hearth
department; that it was necessary to select nominees to run in op-
position to such antagonistic representatives as Pergrem and who
were friendly to management, and to see that they were elected.
Flaherty then mentioned the names of men qualified for the posi-
tion in the respondent's view. The name of Russell Stewart, among
-them, was stricken when one of the foremen present said that he
was under the impression that Stewart was a member of the C. I. 0.
Although Foreman Jess Riddle suggested that he could schedule,off
from work on election day those employees who would not be -
amenable to the respondent's wishes in the election, Flaherty rejected
the idea, saying that he wanted everybody out to-vote, but to be sure at
least that the amenable ones were scheduled for work-tliat day. Smith
expressed the opinion that each turn foreman had someone under
his supervision who could be trusted confidentially to work among
the employees for the election of these hand-picked- candidates.
AMERICAN ROLLING' MILLOMPANY - 1037
Among the 7 employee representatives- elected in this department
were 4 of the respondent's slate. , Charles Shortridge, a turn fore-
man, boasted to Thomas A. Gilpin, 1 of the 14 candidates, "We got
four out of the seven."
The findings in the last two paragraphs are based substantially on
Gadd's testimony, as supplemented by Gilpin's. While Flaherty
contradicted much of Gadd's story, Smith was not called as a wit=
ness, and neither Riddle nor any other foreman present at the meet-
ing, which Flaherty admits took place, testified about it. We credit
Gadd's testimony.
James Keen, an employee laid off in March 1939, testified without
contradiction and we find that in the same election Ivan Cooper, an
employee, came to his home to ask him to go to the mill to vote,
offering to drive him there and back in his automobile, as he had
done for 10 others that day. Keen asked Cooper. who was running
for office. Cooper took a slip of paper, in evidence,' out of his
pocket with the names of 7 men written on it, including 4 definitely
identified by Gadd as being sponsored by the respondent, and giving
it to Keen said, "These are the men we want in.•" While Cooper
was not a member of supervision, it is a fair inference from all the
circumstances that he was one of the trusted men referred to by
Russell R. Smith for this confidential mission . He seems to have
held himself out as a "fixer," suggesting to 2 laid-off employees"
during the course of the hearing, and about 2 weeks before they
testified on the Board's behalf, that if they wrote to the Trial
Examiner requesting that their names be withdrawn from the com-
plaint, he could-, arrange it through "a man," and was sure they
would soon be returned to work. 'With what authority and at whose
instance Cooper undertook these various engagements are not shown
explicitly in the record. Yet when confronted with the damaging
inference to be drawn from the fact that he was acting for the re-
spondent's benefit in these matters, the respondent failed to call
him as a witness or to repudiate his actions except in colloquy of
counsel on objection to the admission of evidence. It should be
noted, too, in this same connection, that Cooper was very active on
behalf of the Loyal Armco Workers League, an organization herein.
called the L. A. W. and discussed below, and was instrumental in_
arranging for at least 1. employee, Proctor McKenzie, to go through
the'niotions of renouncing his C. I. 0. membership before Superin-
tendent Flaherty.
14Bert Davis and Clarence Ezell, whose cases ate reviewed in Section III G 5 belooo
It is of more than passing interest in connection with the Davis , Ezell , and related railroad
cases treated in Section III G 5 below that Cooper himself had been the prime prover
among the older engineers pressing the respondent to cut off the six engineers junior
in service
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-4.
On July 1, 1936, as a drive to organize steel workers was announced,
Superintendent Russell R. Smith sounded the tocsin of opposition
to it at a meeting of the Plan's General Employee Committee.
After railing against "outsiders" as fomenters of dissatisfaction and
unrest, he read an article to the audience explaining the steel in-
dustry's unalterable stand against the closed shop. He pointed out,
according to.the minutes of that meeting, "that machinery enabling
the men of our plant -to treat with the Management had already been
set up. " This machinery is the Employee Representation Plan. This
Plan from the standpoint of both Management and men has
functioned successfully from its inception." He urged the men to
avail themselves of'this machinery in all matters.
Immediately following this rally to the cause of the respondent
and the Plan, there were circulated about the plant for signature,
with the open cooperation of. supervision, petitions expressing opposi-
tion to "outside interference" and satisfaction with the Plan. Em-
ployees were called into supervisors' offices to sign up; others were
solicited at their jobs with the approval of, indeed in some instances
by, foremen. George H. Todd, assistant superintendent of the open-
hearth department, admits that he told an employee, Thurman
Justice, to circulate the petition in that department as it would re-
flect unfavorably on it to fall out of line with the rest of the mill
which was almost unanimously expressing satisfaction with the Plan.
Todd also admits having dispatched a memorandum, in evidence,
to Pit Foreman Harry Williams listing the names of five employees
who had "not'had the opportunity to express their satisfaction and
-confidence." Copies of the petitions, he wrote, would remain in the
foreman's office for them to sign on being notified of the opportunity.
"It looks like 100% for the O. H. (open hearth)," he concluded.
Kirkman, as an' employee representative, was told by his foreman,
Albert J. Hopes, to go to the office of the employment and records
department, headed by Robert L. Kahne, and there have Fitch E.
Wallace,kthe latter's assistant, prepare a loyalty petition for him to
circulate. Kirkman complied, and Wallace prepared a petition for
hhim. Kirkman circulated it the next day. All the signed petitions
were sent by the Plan's secretary to Kahne for a recapitulation and
for transmission to 'the management. Some'. 2,698 out of 2,732 non-
supervisory employees are said to have signed the petitions.
Several days later, at a special meeting of the General Employees
Committee on July 14, 1936, a resolution was passed to the same
effect as the petitions. Only Kirkman and two others voted against
it. This resolution, addressed to various 'governmental bodies and
AMERICAN ROLLING MILL COMPANY 1039
to citizens, was released with the petitions to the Ashland Daily
Independent, a local newspaper, which published it the next day
with a page 1, column 1, news account, stressing that the employees
had, on their own initiative, declared themselves emphatically.
In the resolution the committee stated that it intended to leave
no doubt as to the employees' stand on the subject of unionization in
the plant. Lauding the current method of collective bargaining
and the fairness and friendliness of the management, it pledged
their loyalty to and reposed their confidence in the respondent, cau-
tioning outside organizations not to force their unwelcome attentions
upon-the employees. With a few condemning words for such organi-
zations, it closed bespeaking the cooperation and assistance of all
persons in effectuating the sense of the resolution.
At the meeting where it was adopted Vigor and Smith entered to
hear it read. Apart from what they had to say there about the out-
side union and strikes,"' Vigor congratulated the committee on the
spirit shown in the resolution and that shown by the employees-in
their petitions. He said that such loyalty would be especially appre-
ciated by George M. Verity, chairman of the respondent's board, who
had established "Armco Policies" 36 years before; that these were
the principles which had guided the management during all those
years. Smith then took over on-the same subject, saying, as quoted
in the minutes, "98.8% of the men's signatures on the petition was
good, but not good enough. The thing to do was to work to make it
100% . . . The fine organization in the mill is entitled to the best
representation possible . . . If there are any men in this mill who
have a grievance, real or fancied, the Management wants to know it
so that it can be clarified."
On July 16, 1936, Vigor dispatched a memorandum to all-employee
representatives, superintendents, and responsible executives as
follows :
Last night- I received the following telegram from our
President :
"Frank Vigor-Armco Ashland, Ky.,,
Have just heard of the constructive action of the Ashland
Employees. I want to personally express my appreciation so
am leaving here tomorrow afternoon and arriving Ashland
Friday morning about eleven thirty. -
CHARLES R. HOOK."
A meeting of the Employee 'Representatives will be held in
the basement of the General Office . . . July 17 . . . so that
"Bee Section III, F, below
1040 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
7Mr. Hook can have the opportunity , of personally expressing
his appreciation , and of outlining to' us the Company 's"position
with respect to-the problems that now confront us. "- -
The meeting with Hook took place. Hook said he could not under-
stand . why 100 percent of the men had not signed the petitions; why
tinyone would refuse to sign it. He offered every consideration and
cooperation to , the Plan, and said that he would not tolerate any
interruption in its operation. -
In May 1937 , as the S. W. O. C. resumed a vigorous campaign, at
the mill , there sprung up in opposition to it the Armco Employees'
Protective Association,, a disjointed movement without apparent
structure or internal direction , but with a clearly defined purpose.
Its members had to sign printed cards declaring :
I WANT THE PRESENT PLAN OF EMPLOYEE
REPRESENTATION
Just who inspired this movement does not appear in the record.
However, it got under way almost simultaneously with the distribu-
tion and posting on company bulletin boards of petitions stating the
intent of the signatories to protect themselves "from the actions of
strikers or labor organizers ," and, in the event of a strike, .to do all
in their power to keep the mill operating and their jobs safe.
,At a meeting of all employees in one of the sheet mills called dur-
ing working hours by Orval Felty, foreman , the latter 's brother, or
cousin, Simon Felty, presented the men with one of the foregoing
petitions to sign. Shortly after, Lloyd Pack, a roller foreman, came
around ' personally with a petition and membership cards of the
Protective Association and obtained the signature of Dan McKnight,
who had agreed with five or six other men not to sign up unless
approached by a member of supervision . McKnight signed when
Pack, as the former testified , "was looking a hole through me."
At about the same time Foreman Felty called the men to the ball
park for rally of the Protective Association and urged them all to
attend for their own good. However, there is no evidence that any
member of supervision attended or addressed the crowd there.
Pit Foreman Harry Williams, of the open -hearth department,
urged employees working under him to sign the petition. He was
particularly anxious to have them support the Plan, as his section
was regarded by management as the hotbed of union activities. In
fact, his superintendent , Albaugh, had berated him for not having
the men under effective control in that regard , and Williams told
employees he now wanted to make a good showing with the petition.
The petition seems usually to have been accompanied by the member-
ship- card of the Protective Association when brought around by hand.
AMERICAN ROLLING MILL COMPANY 1041
In the finishing section of the processing department, where the
petition' was passing around from hand to hand, somebody either
mislaid or destroyed it. Word reached Superintendent H. E. Miller,
who directed Foreman Raymond M. Cooksey to gather the men to-
gether in his office. There Miller said to them that some "dirty--*
skunk," as Edward Clay recalled his words, had stolen or destroyed
the petition, but that he was going to draw up another one and have
them sign it right there. He turned to Cooksey and asked for the
wording of the petition and how it was to beheaded up. As Cooksey
and several others recited it, Miller wrote out the petition,himself.
Most of the men signed it then and there.
The burden of the respondent's version of this last incident is
that Miller and Cooksey called the employees in when commotion
and tension became evident on the floor because of the loss of the
petition, and that they merely invited the men in to redraw the
document so as to allay the high feeling among them; and that;
anyway, it occurred in 1936 and not in 1937. Miller.claims not to
have known the contents or purpose of the petition,' and to have
walked out on the- employees before it was redrawn. In' this he was
confirmed by Cooksey. The testimony of the Board's several wit-
nesses on which the facts as related are based is more credible and
persuasive. Miller arid Cooksey were involved-in many .anti-union
episodes, as will hereinafter appear. Besides, even 'if the respondent's
version were to be accepted, its bearing on the unfair labor practice
now under consideration is not helpful to the defense. It is enough
1 to show support of the Plan that the superintendent of a department
throws open the accommodation and facilities of his office in business
hours to employees who are in fact engaged in activities of private
benefit to the Plan. _
The Armco Employees' Protective, Association was evidently a
short-lived affair. It never took the form of an organization. How-
ever,. early in 1938 there appeared, with membership cards, badges,
and military order of command, an organization known as The Loyal
Armco Workers League, or L. A. W. In its declaration of principles
the L. A. W. is dedicated to "promoting the principles as outlined
by the Ashland Armco Plan of Employee Representation." Mem-
bership is "open for all loyal ARMCO workmen who are willing to
support" the , declaration. No dues are payable, but donations are
accepted to defray expenses. The face of the membership card cer-
tifies the member's "full sympathy with" the Plan.
A group -of some 15 persons had launched the L. A. W. in the
spring of 1938, holding their early meetings on company premises, -
at the bath house of the athletic field. The group consisted prin-
cipally of employee representatives who drew the L. A. W.'s bylaws.
481039-42-vol . 43--66
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Officers of the Plan took office in the L. A. W., assuming military
ranks. When ,-later, this caste was changed, the titular primacy of
the organization was lodged in Pricer F. Lyons, as president, Frank
Shepherd being vice president. Noah Wellman became secretary,
Arthur Quade treasurer . At the same time, the first 3 named com-
prised the Plan's Executive and Rules Committees . Besides being
vice 'chairman of the General Office departmental committee, Quade
was chairman of the Plan's Ways and Means and Election
Committees.
The L. A. W. acquired a membership of 1,850 employees in the
plant. This it did by open solicitation while the men were at their
work under the eyes of supervision. In many instances , the partici-
pRtion of supervision was active . To mention 1 which was undenied,
Martin Cunningham , a melter in the open -hearth department ,'5 sug-
gested to several employees the advantage of membership in the
L. A. W., telling William Parsons that only the latter and 1 other
man on Cunningham 's turn had failed to sign up. Some employees,
on coming to work, were told by the watchman or found notices
attached to their time cards that they were to see Noah Wellman, of
the timekeeping office. Only notices in line with company business
were ever put_ on the card rack. Wellman delivered the membership
cards and badges to them when they called on him.
L. A. W. handbills and literature were posted and permitted to'
remain on company bulletin boards. A 12 to 15 foot sign advertising
a mass meeting of the L. A. W. at the Armco Athletic Field was hung
over the respondent 's premises near the entrance to the plant.
At `the third meeting of the L. A. W., held on the premises on
July 14, 1938, resolutions were adopted supporting the respondent
and the Plan in their defense of this case , then at hearing ; con-
demning the .C. I. O. for filing the charge and Charles O. Pergrem,
its president , for testifying against his employer and fellow workers.
Counsel for the Plan addressed the meeting , declaring that the
employee representatives were "protecting their rights as free Ameri-
can citizens ." Those assembled pledged themselves to attend all
possible sessions of the hearing in progress, wearing their L. A. W.
badges. After "a heart to heart talk (by Frank Shepherd, officer
in the Plan and the L. A. W.) . . . stressing the need of Loyalty
at the present time," arrangements were outlined for a "show our
strength" parade of decorated automobiles to be held on July 16,
starting at the ARMCO Athletic Field in Ashland and from there
taking a route through public streets out to Catlettsburg , the place
of hearing , and back . \Before the meeting closed, according to the
printed minutes of the ' proceedings , the following was recorded :
k
'6 The position of melter is listed and conceded by the respondent as supervisory
AMERICAN ROLLING MILL COMPANY 1043
Babe Sloan, a fellow member who has just returned from Steu-
benville, Ohio, gave in detail a true picture of the conditions
existing account of the N. L. R. B. hearing against the Weirton
Steel Co., Mr. Sloan told of the activity of the Weirton Steel
Employees Security League ; they . . . aie a wide awake organi-
zation. He urged that we all pull together and work, for a
greater Loyal Armco Workers League at Ashland.
"Babe" is the nickname of Lando Sloan, a Board witness. His
job is that of roller in the No. 2 sheet mill, a section of the sheet
mill department under Superintendent L. A. Salender. As such he
is, a "guaranteed ruin," by which is meant that the respondent assures
him not less than 15 days of work each month, an arrangement hold-
ing only for rollers and supervisors. The respondent contends that
rollers in this mill, unlike rollers in the No. 1 sheet mill who are
admittedly part'of supervision-and whose duties are indistinguishable
from the former's, do not have supervisory status. We think the
contention does not hold when it is also considered that both groups
of rollers are on the Foremen" list to receive the respondent's intra-
plant mail marked "For Supervisors Only." Nor is the respondent's
argument persuasive that non-supervisors were included on that
"Foremen" list.
Inasmuch as Sloan enjoyed supervisory status in the mill, his
presence at the L. A. W. meeting, his membership in that organiza- -
tion, and his address to the men must be attributed, to the respondent.
His activities in the L. A. W.'s interest were not the enthusiastic
doings of an ordinary employee unidentified in anybody's mind with
management. Ever since 1936 the rollers had been declared by the
General Committee to be ineligible, as.members of supervision, to vote
for or to hold office as employee representatives. Sloan knew it and
the management knew it.
The L.'A. W. was, if not one and the same with the Plan,-certainly,
its alter ego. It was originated and controlled by the heads of the
Plan. At whose instigation that was done remains too vague in the
record to make a finding respecting that question. George -Martin,
one of the original group which launched the organization on its
career, testified as the respondent's witness. On cross-examination
he was utterly confused by the overlapping of personnel and purpose
of the Plan and the L. A. W. His answer to the question as to why
it was necessary to form another organization to support the Plan
was: "Surely we would want support from somewhere, wouldn't we?" -
In fact the respondent amply supported the Plan. It likewise sup
ported the L. A. W., as appears from the tolerance, aid, and en-
couragement it extended to the activities of that organization on
and off its premises. -
1044
J -
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This was in keeping with the respondent's established attitude
toward the Plan.. As early as September 4, 1935, the minutes of a
meeting with employee' representatives relate : "In answer to a ques-
tion as to whether or not the recently passed Wagner Bill would
affect our plan of Employee Representation, Mr. Vigor said that it
would not, at,least for the time being. Mi Vigor explained various
phases of this bill." Vigor frankly stated his `point of view at the
hearing that the employees' desire to have no outside labor organi-
zation represent them was in- part a measure of their loyalty to the
Company, a spirit on which he had commended them. The "Armco
Policies" booklet given to the men is their bible, he testified. He-,
"supposed" that it instills in employees a "comprehensive- vital
force .. . in which selfish purpose has no place." Cooperation
through the Plan, one of the stated policies, leaves no room for the
C. I. 0. in the respondent's scheme -of things. As the Plan has
worked out satisfactorily in the respondent's experience with it,
Vigor testified, he still would not hesitate to recommend it to any
employee. In fact, new employees are furnised with a copy of the
Plan and a book of information listing the Plan as one of the
"Company Activities." -
5.
Consonant with the respondent's early announced purpose to have
the Plan understood and accepted by employees, supervisors and
employee representatives were expected by the management to in-
culcate the Company point of view in employees with whom they
came in contact. To implement this educative role of supervisors
and employee representatives, the respondent distributed to them
and to employees at large numerous pieces of literature." Reprints
of items gleaned from current periodicals and tracts especially writ-
ten as propaganda for the steel industry, condemning unions and
their organizers, specifically and in general, and extolling employee
representation plans, were sent out from the respondent's main office
for distribution-at the plant. At least until June 1937 these were
indiscriminately delivered, into the hands of all groups in the plant
by means of the, intra-plant mailing system and, in the case of em-
ployees at, large, by placing the matter on their time-clock rack.
After June 1937, the respondent claims, it confined the distribu-
tion of such literature to supervisors exclusively. If we disregard
the fact that some of this later material nevertheless turned up ulti-
mately in the hands of- employees, either by design, or carelessness
in the disposition of it, there still remains unblurred the policy of
the respondent to support and encourage the Plan by the use of
17 Some of this literature is identified and discussed in Section III F , below
J
AMERICAN ROLLING MILL COMPANY - 1045
literary propaganda. Acknowledging the respondent's attempt to
"keep (its supervisory employees) informed of what was going on
in the labor field" by sending them only articles hostile to outside
labor organizations, Vigor would not hazard an opinion as to what
effect such articles might have in molding the viewpoint of super-
visors. He suspected,_however, that the latter in turn "would have
some influence in molding the opinion" of employees. The effect
at both stages is profound, if not in the making of opinion, at least
in action induced by the authority of the one passing it. With un-
abated conviction that the respondent's view of labor relations is
correct, Vigor testified, "If we were permitted by the Wagner Act
we would gladly send the information to every employee, but our
right of free speech is abridged under the Wagner Act."
The respondent's reluctance to abide by the Act thus takes the form
of educating and inciting supervisory employees to breach it. The
means employed to establish the practice; is no less to be proscribed
than the violation itself. In all the circumstances of-the case, the
distribution of anti-union and pro-Plan literature to supervisors after
June 1937 was as much support of the Plan as it had been previously
when placed in the hands of employees.
D. Conclusions respecting the plan
It is claimed in defense that the operations of the Plan have satis-
fied a large majority of the employees; that industrial peace has been
achieved; that in its-dealings with employee representatives the re-
spondent `has neither dominated nor interfered with their indepen-
dence of action. Further, denying that it dominated or interfered
with the formation and administration of the Plan, but admitting
the contribution of some aid and support to it, the respondent con-
tends that the Plan is not a labor organization, within the meaning
of the Act, but rather "an agreement between a labor organization
(presumably the employee representatives elected August 2, 1933)
voluntarily created by the . . . employees and . . . the manage-
ment." The respondent sometimes refers to the Plan as a "formula,
plan or agreement" adopted through the process of collective bargain-
ing between the employees and the respondent.
The first contention may be disposed of in the language of the
Supreme Court of the United States in N. L. R. B. v. Newport News
Shipbuilding cQ Dry Dock Co. et al.18
In applying the statutory test of independence it is immaterial
that the plan had in fact not engendered, or indeed had obviated,
i8308 U . S. 241 , reversing 101 F. ( 2d) 841 (C C A 4 ) and enforcing Matter of Newport
News Shipbuilding and Dry -Dock Company and Industrial Union of Marine and Sinpbuilding
Workers of America, 8 N. L R. , B. 866 - -
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
serious labor disputes in the past, or that any company inter-
ference in the administration of the plan had' been incidental
rather than fundamental and with good motives. It was for
Congress to determine whether, as a matter of policy, such a plan
should be permitted to continue in force. We-think the statute
plainly evinces a contrary purpose... .
The next contention, that the Plan is not a labor organization, ignores
the express definition written into the Act. Section 2 (5) defines "the
term labor organization (as) any organization of any kind, or any
agency or employee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment,- or conditions of work."
The Plan is clearly an "employee representation, plan" within that
statutory definition?"
In no sense, moreover, can the Plan be construed to,be an agreement
arrived at after genuine collective bargaining between the respondent
and freely chosen representatives of the employees. Not only does the
Plan lack the attributes of an agreement, but the circumstances of its
adoption plainly indicate that the respondent conceived the Plan and
foisted it upon the employees. The record shows that the respond-
ent took the initiative, upon the entry of the Amalgamated on the field
and the scrapping of the old' Advisory Committee, to urge its -em-
ployees to form some organization which the respondent could deal
with. It gave direction to this urge both by deflecting the interest of
employees from "outside" unions and by encouraging and supporting
"self-organization" along the old committee or district-representa-
tional lines, with a plan of representation in view. In this the re-
spondent accorded employees their accustomed use of company time
and facilities, thus stamping their new endeavors with advance
approval. -
The respondent had published "suggestions" of.an Armco Plan of,
Employee- Representation more than a week before the employees
elected their representatives in bargaining units prescribed by the re-
spondent. Immediately upon the convening of representatives for their
first meeting,, the respondent furnished each of them with its -own
proposed plan and the assurance of its acceptability to the management.
One of the "suggestions" which had emanated from the Zanesville
plant, that employees "call in the American Federation of Labor to act
as our council," was brushed aside by the respondent in its proposed
plan. As Vigor testified, the respondent alone decided which "sug-
gestions" had merit or bearing on the plan of employee representation
ie See Bethlehem Shtipbwoldxng Coop . v N. L R. B, 114 F. ( 2d) 930 (C C A. 1) ; Beth-
lehem Steel Co. V. N. L R. B., 120 F. (2d) 641 ( App. D. C ).
oll
AMERICAN ROLLING MILL COMPANY 1047
it fancied, using those and weeding out the others. Apart from the fact
that the respondent did not present employees with the opportunity
of voting for the Amalgamated as bargaining representative,, the adop-
tion of the Plan may be attributed, at least in-part, to the commanding
force of the respondent's expressed wish and preference. When the
committee adopted the Plan, the respondent established it and domi-
nated and interfered with its formation as surely as though the re-
spondent had imposed it upon them by sheer fiat, without the formality
of proposals, deliberations, and adoption by vote. The further for-
mality of ratification by the employees as a body was no less an imposi-
tion of the Plan upon them as a whole. Not content to let the repre-
sentatives recommend approval, the respondent itself clinched it with
a subjoined recommendation to that effect. The coercive effect of
employer "recommendations" in these -circumstances is manifest.
In less than 9 months a sentiment voiced by a better than 3 to 1 vote
of employees against the old Advisory Committee was converted to an
expression of approval for the Plan by a vote of a little less than 3 to 1.
In absolute figures; whereas 1,0991iad opposed the Advisory Committee,
only 633 voted against the Plan; by contrast with that ratio, while a
mere 343 had been for the former, a vote of 1,715 was mustered in favor
of the latter.
If there was any difference between the Advisory Committee and the
Plan it lay only in the greater intricacy of structure of the latter.
Indeed at the very first meeting of employee representatives with C. J.
Rice, superintendent of the Norton furnace. the minutes record that
Rice "explained the growth of the Advisory Committee plan as' de-
veloped by Mr. Verity, and Mr. Hook, which, under the New Deal was
changed in name to Employee Representatives." No one gainsaid him.
As late as December 31, 1936, Superintendent N. P. Finkbone, of the
galvanizing department, told newl elected employee representatives
that they were to "carry on fQr e purpose for which they -were
elected ;that of representing the men who-elected them and of carrying
the management's messages back to the men." Otherwise, in manner of
inception, in effectiveness as a collective bargaining agency, and i!n -
situs of ultimate control, they were one and the same. The one was
voted out while the employer control was relaxed; the other was voted
in when that control was reasserted.
The Plan, as formulated and established by the respondent, made no
provision for self-organization, assemblage, or discussion by employees.
Their sole participation in the Plan from the first was automatic by
virtue of their status as employees -and consisted of voting approval
or disapproval of the proposition of its adoption, substantially as
initiated and recommended by the respondent, and thereafter was con-
fined to the annual exercise of the privilege of nominating and electing
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives . The representatives were not made in any way respon-
sive to their constitutents . Even the right of recall might be exercised
only upon a petition signed by two-thirds of the voters in the district
and then approved by the Employees -Executive Committee consisting
of all departmental chairmen. ' The district lay-outs for the purpose
of representation are, by and large, coterminous 'with departments or
sections of the plant , and may be changed only by action of the Joint
Executive Committee ( management representatives in equal number
with departmental chairmen).
Service as an elected , employee representative is subject to the re-
spondent 's control and will , in that it is contingent upon continuation
of employment . That severed , he "shall be deemed to have vacated his
office. " Thus were the employees deprived of representation by, and
notwithstanding the discriminatory discharge of, John Fultz'20 chair-
man of the continuous anneal and pickling committee by virtue of
having received the largest number of votes cast for any one of the
five representatives elected in that department . Similarly , were the
employees of the transportation and labor department deprived of
representation by Isom Richard Gillum '21 discriminatorily discharged
too. By contrast , nothing stood in the way of the tenure in office of
Millard Blevins and Ballard Easton, two of the six elected representa;
tives for 1937 in the sheet mill department and respectively chairman
and vice chairman of that' committee , when in the summer of that year
they became disqualified to hold office and were "deemed to have
vacated" it upon their appointment to regular supervisory positions.
They nevertheless continued without warrant to serve.
Again, an employee representative vacates his office upon being
transferred by the respondent .from one voting district to another,
except that he may hold office for 3 months thereafter , "providing the
voting district in which he was elected so desires ." No provision is
made for the manner of expressing such desire . The possibilities of
that situation were exemplified at the very start of the Plan. Harmon
Stull had joined the Amalgamated in Jurie 1933 . He was immediately
upbraided for doing so by Robert Slagel , his foreman . On August 2
he was elected as representative by the maintenance men in the proc-
essing department . Marion S. Amburgy , the superintendent , added, a
few words of his own to Slagel's denunciation of Stull for his union
activity , and transferred the latter to a "greasy " job in another depart-
ment, the jobbing-mill warehouse . Technically disqualified to hold
office, Stull was, besides , actually barred from activity on his com-
mittee. Four months later Stull was transferred to a more desirable
job on his promise to cease his union activities.
20 See Section III 0 2 below.
11 Idem.
AMERICAN ROLLING MILL COMPANY 1049
As the respondent reserved to itself the power, thus to determine
the continuance of employee representatives in office, so it predeter-
mined in some measure who such representatives plight be. This was
done by fixing the eligibility requirements so that nominees must have
been in the continuous service of the respondent for at least one
year, and must be on the active pay roll. To the degree that this pre-
sents the possibility of manipulation by the respondent in limiting the
field of choice, the employees"statutory right " to bargain collectively
through representatives of their own choosing" is further impaired.
While either the respondent or a majority of the employees may
upon notice terminate .the Plan, it may be amended, not by a vote of
the representatives, but "by a two-thirds vote of theemployees of the
Ashland Division voting thereon, the Management concurring."
[Italics supplied.] This veto power residing in the respondent is
enough to stifle the employees' right to change their form and method'
of representation, a right integral with that of self-organization
itself.22 The law denies to employers any part in the manner or field
of choice of their employees' bargaining representatives. Yet, both by
existing provision of the Plan and by the exercise of such veto power,
the respondent reserves control of that sphere of employee interests
with which it has no legitimate concern.
Altogether, in its initiation and sponsorship, the Plan was a device
formulated by the respondent and imposed by it upon the employees
for the ostensible purpose of collective bargaining, and was not their
own form of self-organization. In structure and function the Plan
was devised and calculated to afford the employees nothing but the
semblance of collective bargaining, through representatives not of their
own unrestricted choosing. Favors, assistance, and support rendered
by the respondent to the Plan and' the employee representatives, by
way of accommodation with facilities for the conduct of their business
and indemnification for all loss and expense therein, are cogent means
of company domination and interference with the administration of a
collective bargaining agency under the circumstances here present.
More cogent still, of course, were the respondent's active role in and
tolerant attitude toward the use within its walls of speeches, petitions,
literature, and satellite organizations to encourage and promote the
Plan. Counterpoised as were these activities against the organiza-
tional efforts at first of the Amalgamated and later of the S. W. 0. C.,
the entire weight of the respondent's influence and prestige with em-
ployees was brought to bear dominantly on the side of..the Plan.
22 See N. L R. B. v. Newport News Shipbuilding and Dry Dock Co et at, supra, NN hen the
Court said : "The plan may not be amended if the Company disapproves the amendment.
Such control of the form and structure of an employee organization deprives the employes
of the complete freedom of action guaranteed to them by the Act. . . .
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Plan has continued unchanged from the date of its inception,
and the manner of its administration, including the respondent's par-
ticipation , aid, and support therein, has not been varied, except as
noted in the next following paragraph. The passage of the Act on
July 5, 1935, and the issuance of the decisions 23 of the Supreme Court
of the United States on April 12, 1937, upholding the constitutionality
of the Act, so often the cues for some revision in other employee rep-
resentation -plans which have come under our notice, gave this respond=
ent no pause . Of course , nothing which it did prior to July 5, 1935,
constitutes unfair labor practices under the Act. Findings in this
decision respecting events prior to that date are only made for the
sake of continuity, insofar as it is necessary to explain the practices
in which the respondent has engaged since then.
In a letter to the Regional Director dated June 10, 1937, the respond-
ent proposed to suppress improper organizational activities, such as
the circulation , with supervisors' aid, of petitions supporting the Plan,
to terminate its lease . of space to the Plan for vending machines, and
to terminate Plan meetings on company property. In furtherance
of these proposals , the respondent undertook to post on its bulletin
board verbatim, the provisions of Section 2 (5) and Sections 7 and 8
of the Act.
Assuming that the respondent has carried out its proposals, we are
convinced by the record that the respondent' s labor practices have
been so systematically unfair that the full remedial power of the Board
should be exercised to undo their results and to prevent their continua-
tion or, repetition . The long-standing practice persists of paying em-
ployee representatives for time spent on safety inspections and indem-
nifying them for time lost from work while attending Plan business;
and the numerous other mentioned contributions of support to the
Plan, perhaps excepting certain minor items like stenographic help,
still flow from the respondent . The Plan itself, legitimate in its crea-
tion only because the Act has no ex post facto operations , but inher-
ently vitiated by the respondent's-continued participation in its fund
tioning, has remained constitutionally unchanged and is an obstacle
to the self- organization contemplated for employees by the Act. We
find that the respondent, on and after July 5, 1935, dominated and
interfered with the administration of the Plan, and contributed finan-
cial and other support to it; and that the respondent thereby has
interfered with, restrained , and coerced its employees in the exercise
,of the rights guaranteed in Section 7 of the Act. -
11 National Labor Relations Board v. Jones & Laughlin Steel Corp, 301 U. S. 1.
AMERICAN, ROLLING MILL COMPANY 1051
E. ,The Alleged Settlem e'l t
On May,29, 1937, the S. W. O. C. filed a charge with the Regional
Director alleging certain acts and continuing practices of the respond-
ent constituting violations of the Act under Section 8 (1) and (2) 238
No complaint thereon was ever issued, nor was any other formal action
taken. 'Apparently after some investigation of the charge by, and
conversation with, a Field Examiner of the Board, the respondent's
counsel answered the allegations seriatim in the above-described letter
to the Regional Director dated June 10, 1937. In addition to the mat-
ters referred to in this connection in Section III D above, the letter set
forth the respondent's contentions and justifications regarding the
misconduct with which it was charged. The gravamen of its position-
was that its actions were minimal deviations from the letter of the
law, and that the rival C. I. O. union was equally advantaged by the
respondent's laxity.
On June 11, 1937, the Regional Director replied by letter that he
would give careful study to the letter from the respondent's counsel
"before entering a final opinion," suggesting that the respondent
post the text of Sections 7 and 8 of the Act. On June 12 the
respondent's counsel sent to the Regional Director a bulletin proposed
to be posted containing not only those sections but, "to avoid any
misunderstanding as to what is a `labor organization' under'the" Act,"
Section 2 (5) as well. On June 16, 1937, the Regional Director'wrote :
I have studied your proposal very carefully and find that the
letter, plus the bulletin quoting the Section of the Act, consti-
tutes satisfactory compliance, and I am, therefore, closing my
files in the matter.
By virtue -of this correspondence and what the respondent did
pursuant to it, it is claimed that the respondent's slate -was wiped
clean of the unfair labor practices in which, up to June 16, 1937, at
least, it might have engaged vis-a-vis the Plan, the S.-W. O. C., and
the employees. Of course, the charge upon which the complaint 'in
the instant proceeding is based was broader than the one claimed to
have been settled. Recognizing that, the respondent moved at the
hearing and again,at the close thereof to dismiss the complaint insofar
as it related to matters which had occurred prior to the '"settlement."
The Trial Examiner properly denied the motion. "
In view of the policy previously stated in Board decisions respect-
ing situations of this kind, we think it un ecessary to interpret the
correspondence between -the Regional Director 4nd the respondent's
1^1 The charge cited a violation of Section 8 (3) of the Act as well, but contained no
statement of facts constituting that unfair labor practice.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel and determine whether or not a settlement in the usual sense
was intended or made. - The objective of the Board is to remedy
unfair labor practices not alone by corrective and restorative meas-
ures, but also by securing prospective compliance with the law. We
are confronted here with a policy question addressed to our discre-
tion. When, as now, it appears to u's that the unfair labor practices
continue and persist unabated we are not constrained from consider-
ing the whole congeries of events w=hich make up the pattern of
unfair labor practices, including those which antedated the alleged
settlement.
In Matter of The Duffy Silk Company and Silk Throwers Union,
Local 81, Textile Workers Union of America,'1 the Board stated :
Counsel for the respondent refers to cases in which we have
refused, for reasons of policy, to disturb agreements purporting
to settle past unfair labor practices when our agents have par-
ticipated in or lent approval to such agreements. (Cases cited.)
This ' rule, however, does not apply in the instant case where
the unfair labor 'practices consist of the establishment- and con-
tinued maintenance of a labor organization -which by its very
nature defeats the rights guaranteed by the Act. The action
of one of our agents cannot constrain us from considering conduct
in violation- of the Act which endured for 3 years thereafter
andf may . .. continue indefinitely.
F. Interference, Restraint, and Coercion
The possible union affiliation of applicants for employment has
always been a matter of concern to the respondent. Its standard
application and employment forms, some of which were still in
use at the -time of the hearing, provided space for such information
to be supplied by the applicant. At least until the spring of 1937,
when the respondent's interviewers were instructed not to-fill in that
information on the records, it was routine to make the inquiry.
Despite alleged instructions from the management to the super-
visory staff to assume a ,hands-off policy in union matters until the
Act's constitutionality and application to the respondent hacl, been
passed upon, at least two superintendents of departments, H. E.
Miller of processing and W. P. Albaugh of open-hearth, - admit to
having "stepped over the traces just alittle bit now and then" before
the Act was declared constitutional., For these and other deviations
the respondent takes refuge in the fact that the Circuit Court of
Appeals for the circuit in which its business is situated had declared
the Act unconstitutional.
24 19 N . L R. B 37
AMERICAN ROLLING MILL COMPANY 1053
With the advent of an organizing movement in the steel industry
in the early summer of 1936, things began to happen at the re-
spondent 's plant even before that organization 's attention was turned
to this enterprise .. The announcement of a coming effort to organize
- "steel" and the pendency of a strike at the plant of the Wheeling
Steel Corp. at Portsmouth , Ohio, caught the respondent 's notice.
By the end of the summer the plant had been virtually flooded-with
anti-union , anti-John L. Lewis , and anti-strike literature . The C. I.
0. and its leaders were stimgatized as "communists " and "agitators"
bent on' "sovietizing" America through unprovoked , destructive
strikes .- Hand in hand with this attack carne publications from news,
° business , and house organs praising the steel industry as an employer
of labor, and employee representation plans in the various companies
as the most effective form of organization for employees. A few
illustrations follow of the kind of material which the respondent
passed on to its employees.
A reprint of a Michigan newspaper item dated July 2 , 1936, draws
upon the views of Charles R. Hook as recently expressed by him in a
magazine article entitled "Thirty Five Years Without a Strike."
Positing the ,"paid agitator" as the "villain" on the industrial scene
greedy for dues payments and bent on causing "trouble , impossible
demands, strikes , violence, destruction of property , and often loss of
life," the writer quotes ' excerpts from Hook's article favoring a pro-
gram of company beneficence and of employee representation. An-
other newspaper is quoted in a reprint reviewing Hook's ar t icle as
commenting , "Perhaps if industrial employers generally maintained
the American Rolling Mill attitude toward their employees, there
would be less room for men like John L. Lewis in the industrial
scheme." This theme was pursued in the July 1936 issue of Steel
Facts , a publication of the American Iron and Steel Institute. The
followin g captions ` over items appearing on a single page of that
publication set the tone of its message : Form Employees ' Security
League ; Outside Group Cannot Do As Much; Protest Trespassing
on Rights; Do Not Wish Outside Representation; _98.80/"0 of Em-
ployees Petition ; No Interference From Organizers ; Against Outside
Organization ; Endorse Stand Against the Drive.
Following up the distribution of the above literature came an
article from the August 1936 issue of Industry and Labor entitled
"Foster Precursor of the C. I. O. Lewis Has Adopted the Program
of the Communists." The article traces the "left" swing of-the
American - labor movement and its leaders to `-`radical unionism,"
concluding , "Thus the seeds of industrial unionism planted by Foster,
the Red, back in 1919, have germinated and come into -flower under
the aegis of Lewis, Hillman, Dubinsky , Gorman, et at in 1936."
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other writings distributed elaborate the notion that the C. I. O. lead-
ership derives its inspiration and takes its direction from sources
intent on destroying the foundations of American business enterprise
and on betraying the American working 'man. An article on the
nearby Wheeling Steel strike opened and closed with the following
respective paragraphs: -
The desperate and disreputable tactics used by the radicals rep-
resentative of John Lewis, and his attack upon the steel industry,
have been well illustrated during the past week.
The experience at Portsmouth should be a lesson to employees °
of other iron and steel plants }vlio are likely to be-appealed to,
and are likely to be subinitted to the same kind of pressure that
the employees of the Portsmouth plant were."
Another article concludes, "And if the average steel worker is a
rational being, he will compare his own pay envelope with that of
the miner, and then ask himself what he has to gain by taking on John
Lewis as his manager." Still another abhors the very thought of col-
lective or any other kind of bargaining "about the work and welfare
of human beings." 25
From the face of the various writings in question, it is clear that the
respondent intended by their distribution to its employees openly to
disparage and express contempt for the C. I. O. and its leaders so that
membership in the Union might' be discouraged and self-organization
frustrated.
On May 26, 1936, Vigor discussed the Wheeling Steel strike with
employees representatives and pointed out its costliness to all con-
cerned. Three weeks later,' in reporting ,to them on the situation,
lie renewed the observation. The concern of the respondent over the
course of events is reflected in, other incidents. As the loyalty petition
of July 1936 circulated through the plant with the congratulations of
Hook, Vigor, and Smith, the pressure and tempo of the respondent's
]roves against the Union were increased. All over the plant, at various
departmental meetings, superintendents and foremen took their cue
from the' remarks of 'Vigor and Smith at the General Employee
Committee meeting of July 14, 1936, the minutes of which record the
following talks :
Mr. Vigor said, that of the nine members of John L. Lewis's Com-
mittee, only two were from the Amalgamated, the rest from the
United Mine Workef's, the Ladies Garment Workers, etc. If
2'As we have indicated this kind of literature was fora considerable Iperiod i%idely
distributed by the respondent throughout its plant . See Section III C 5 , slips.
y
AMERICAN ROLLING MILL COMPANY 1055
the steel industry'is organized , these nien will be able to collect
around $450,000 per month in dues. . . Armco had had some experi-
ence with the Amalgamated in Middletown . The Amalgamated
broke an agreement signed by their officials two months after it
was put in effect. Mr' Vigor said that Mr. Lewis was going to
fight; but that the Company would fight too in order to protect
itself and its employees . In replay to a question Mr. Vigor stated
the terms of the strike settlement at Portsmouth . The men went
back to work under the same condition as they left . - The man-
agenient agreed to treat with representatives from any organiza-
tion the mill, though the Labor Councils, corresponding to our
Employee Committees , were still in effect as before . Several men
who were instigators of the trouble were not taken back ...
Mr. Smith in speaking of unionization , pointed out that organ-
izers were often individuals similar to Coates, the labor organizer
who was in Ashland several years ago. Coates made away with
the union funds collected at Mansfield , Ohio . .. Mr. Smith said
he couldn't believe that the men in this mill who are real Americans
and Kentuckians , would permit union officials with unpronounce-
able names , such as Leo Kryczcki and Mike Fontecchio , to influ-
ence them or dictate to them.
Vigor amplified this theme at a July 24 meeting where, the minutes
simply report , lie stated "that Mr. Dick Evans ( an organizer) of the
Amalgamated Association of Iron , Steel and Tin Workers from Ports-
mouth, Ohio, is in Ashland." According to the uncontroverted testi-
mony of Pergrem, evidently concerning the same meeting , Vigor was
asked by one of 'the representatives present what could be done to
prevent organizers from coming in and stirring up trouble , to which
Vigor replied , "Now, that is something that I can't answer. I can
tell you what they did down at Gadsden , Alabama. They met them at
the city limits and turned them back."
Vigor admits that he was interested in the movements of Dick
Evans, and was kept posted on them by the respondent 's general office
in-Middletown . He also admits having received from that office a detec-
tive. agency's reports on the Portsmouth strike situation during this
period when there were rumors that the strikers might "invade',' his
plant and close it down ` Although Vigor claims to have paid little
attention to such reports , he did maintain dossiers on the organizers.
The supervisory staff under Vigor carried the management 's concern
down to the ranks of the employees . In July 1936 , at a dinner given by
the respondent for older employees, Superintendent Hayes N. Holstein
of the blooming, bar, and jobbing -mill department said that if he knew
when "John L. Lewis and his gang" were coming to town he would,
according to the testimony of Thurman Justice, "take ( his) six-shooter
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and meet him at the train and see that he went back ." Holstein's ver-
sion of this statement , which we find was made, that he merely reported
this as the temper and the sentiment of disturbed employees and not
as his own , does not alter the anti-union character of the statement.
As Vigor . discussed' at meeting after meeting his "pet subject these
days-Johnny Lewis and his C. I. 0.," . Superintendents Albaugh,
Annburgy, Salender, Miller, and others received their material for anti-
anion talk . The contention that Lewis was only bent on getting the
money of steel workers, , so as to pay himself a salary of $500,000 a
month; that - the organizers were . "petticoat workers" with foreign
names , carrying a suitcase in one hand and a soapbox in the other; that
some were "Russian Reds, " and the like , filtered down from manage-
ment to employees through the mouths of departmental heads and their
subordinates . The record is replete with instances ' of such talk. on the
part of supervision, evoking animosity toward the Union among some
employees, fear of the respondent among others, and confusion among
all.' Many such instances will be treated below in our review of the
discrimination cases . Instilled in all employees by the remarks of
Vigor and Stalnaker was the fear that the plant was becoming obsolete
and that if the Portsmouth strike were to spread to the respondent's
mill, the respondent would scrap the plant altogether and move out of
Ashland rather than spend millions of dollars in capital outlay. -
A zlarinao, instance from the record may be considered at this point.
Russell R. Smith, the general superintendent of works, in addressing
a meeting of supervisors in the fall of 1936, said that some organizers
were in town setting up headquarters in a local hotel with the plain
of breaking up "our happy family." Smith wrote the names of some
of the organizers on a blackboard, remarking that he could write but
not pronounce them. He added that one of them was the head of a"
petticoat workers' union now come to Ashland to show the respondent
how to make steel. Smith then proceeded to write on the blackboard
two columns of words and figures, one headed "benefits " kind the other
"promises. " He showed in the one the respondent with a $25,000,000
investment furnishing employment to 3,200 to 3,500 employees; steady
work, pay checks, insurance, credit union, and Armco Association. ' In
the "promises" column he placed a question mark to indicate the vague
rewards offered by organizers who had their bags packed ready to get
out of town and break their promises, as contrasted with Armco, which
had to stay and make good. ' Smith then told the supervisors that there
was no law against their telling employees the benefits they enjoyed
in working for the respondent. He said that they must all have trusted
friends to whom they could go and hand this story down so.that it
might be spread wide; and "that °if we could get this story down to the
men, of what they actually had, working for Armco against this
AMERICAN ROLLING MILL COMPANY 1057
promise, that these organizers couldn't dent bur `family."' Philip
Harold Gadd, who had been a turn foreman in attendance at that
meeting, related all of the above without contradiction.. Smith did
not take the stand.
Superintendent Salender went even further in his opposition to
the inroads of the organizers.- He told a meeting of men at his
office : "Boys, these fellows will promise you everything that is -nice,
especially you young fellows, and if any of them comes up and goes
to talking to you or promising you' everything knock hell out of
them... If you 'get in jail over it,, we will guarantee you won't'
be there long after we hear about it."
At about the same time, Superintendent H. E. Miller told his men
at a turn meeting toward the close of 1936: "Under' the NRA, boys,
we stood back and let you join all the organizations you wanted to.
Now we come out in the, open and are going to fight you '... you
go up town and' buy a bushel of apples, and you take them home,
what would you do with them if you found a rotten apple, wouldn't
you throw the rotten one out? That is exactly what we are going
to do, just throw them out. Anyone who looks like he joined an
organization, unions, and we know it in the mill, we are going to
send him outside and let -him help organize uptown." Miller had
evidently picked up the homely simile of the rotten apple from the
use to which Russell R. Smith had earlier put it in deploring the
presence of a few "rotten apples" which resulted in only 98.8 percent
of the employees signing the loyalty petition of July 1936. ,
By the fall of 1936 the S. tiV: O. C. began in earnest to undertake
the organization of the plant. Talk of an "invasion" was kept alive
as Vigor continued conferences with Russell R. Smith and John
McIntyre, Jr., chief of company police, as to ways and means of stem-
ming it. There is no evidence that any such overt concerted activity
was in contemplation of the S. W. O. C. organizers who calve to town
in November 1936 and set up headquarters,, except McIntyre's- testi-
mony that one Sunday he saw a caravan of 25 or 30 automobiles
with Ohio license plates in the heart of town 2 miles from the plant.
Ashland is located on the Ohio River, facing the State of Ohio. The
respondent hastily erected iron posts and chains across the mill
entrances; Vigor installed a short-wave radio transmitter to enable
him, in the event of disturbance, to plead with employees in their
homes to stay there and remain calm ; superintendents and foremen
instructed employees to stay at ,home if the "invasion" came and thus
avoid' bloodshed. In - this charged atmosphere it not unlikely
that some employees may have "come to work armed, as Superin-
tendent Holstein reported they had, although no one seems to have
caught sight of the arms.
451039-42-vo1 43-67 '
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The menace with which the respondent was contending at that
time consisted in fact of three S. W. O. C. organizers, Clay Mitchell,
John P. Harris, 'and O. F. Royse, who went visiting and speaking
with the respondent's employees, arranging for the' distribution of
handbills, and' organizing meetings. In these tasks Mitchell and
Royse, accompanied at times by Harris, traveled by automobile and
on foot throughout the City of Ashland and its environs, to homes,
street corners, public eating places, and sometimes to the very walls
of the respondent's premises, perhaps even within the parking space
provided for empl'oyees' automobiles. They were aided, at times
accompanied, by interested' employees.
In professed concern that Mitchell, who was then' under indict-
ment in Ohio for allegedly obstructing railroad tracks in connection
with the Wheeling Steel strike, a charge on which he was never tried,
might seek to damage the respondent's property, the company police
A railed and observed the organizers wherever they Went, whether
near the mill or far, and whether heading in the direction of the mill
or away from it. By virtue of their then status as deputy sheriffs
of the county, the company police exercised authority to follow these
men, a procedure in which the respondent did not request the,as-
sistance of the local police, notwithstanding that Mitchell and Royse
are claimed to have been detected prowling suspiciously at night
near company gas mains and power lines. On one occasion, the
organizers drew up to the 'city police station to report and ask
protection from their pursuers. Company,policemen John Huff and
-Sam Rule followed them into the station. Sergeant Ed. S. Delaney,
on duty at the desk at the time, testified and we find that Harris
explained his legitimate business as a union organizer and that Armco
policeman Huff retorted, "I know what business you are here in
or about. . . . You are just a bunch of 'crooks and cut-throats. I
am going to continue to follow you, and there won't nobody bother
me for it." Soon after, Huff told Cornelius Jennings Queen- that
the organizers "don't any more than hit town until we know it . . .
Everywhere they went, we know where they go." Huff 'added
that the company police also know everybody the organizers talk to.
The organizers were impeded by such actions on the part of the
respondent from going about their business. They hesitated to ap-
pear openly to distribute literature or to keep appointments with
employees who were disposed to share their organizational aims, and
the employees in turn feared, to be observed taking union handbills
or consorting with these marked men. The Armco police by pretense
entered the S. W. O. C. offices. Policeman William Morrison, using
a false name and pretending to be an employee of another company
in the community, came in and asked how he could get an organizer
for the workers in that company.
AMERICAN ROLLING MILL COMPANY 1059
,One evening in December 1936 the S. W. O. C. advertised and
,conducted a meeting at the City Building for employees of the re-
spondent. Four Armco policemen loitered outside the meeting
place stationed where they could observe all entering and leaving the
building. The police went upstairs after a while and Lieutenant
William F. Sparks looked into the Council Chambers where the
meeting was in progress, looked over, the meeting for a few minutes,
and left. Sparks testified-that he did not know the, nature of the
meeting and went up out of curiosity; that the door 'to the Chambers
was ajar; that he heard someone within talking about John L. Lewis
and the C. I. 0.; that he recognized Pergrem sitting in the meeting;
that' he left when he realized that it was no place for him to be.
Sparks' testimony from the beginning, that he just happened by the
City Building and stopped to investigate when he noticed a crowd,
to the end, that he did not report to any superior what he had seen
and heard, does not persuade us of the innocence of either his motive
or his conduct.
Early in January 4937 Raymond L. Stanley, an employee, was
approached by Armco policeman Stewart O. McNeal, who asked him
whether he knew the organizers. Stanley said that he did, ad-
mitting his enmity toward Clay Mitchell because of some incident
years past between the latter and Stanley's father; McNeal said
that he thought Stanley could be of help by joining the Union and
getting information as to-their activities and the names of others
joining. In return, McNeal said, Stanley might secure some ad-
,vanceinent with the respondent. This much of the incident McNeal
substantially denied, giving as his version that Stanley approached
him with the proposition. In any event,, McNeal arranged for Stan-
ley to, meet Chief McIntyre who, according to Stanley, urged the,
idea upon him as McNeal had and offered to pay Stanley's' dues and
expenses. Stanley did not commit himself. McIntyre denied this
version of their conversation, testifying that Stanley volunteered to
join the C. I. O. and "double-cross" the organizers, to which Mc-
Intyre answered, "You use your own judgment about joining the
C. I. O. It isn't anything to me." While this entire incident is,
beclouded with contradictions, a discernible pattern plays through
each version of what happened. McIntyre did meet with Stanley
and discuss the possibility of the latter's acting as.an informer for
the respondent: No matter who broached the suggestion, McIntyre
at best said nothing to dissuade Stanley from executing. the plot;,
and far from making short shrift of such an invidious proposal, if
indeed it came from Stanley,. McIntyre, according to his own story,
told him to use' his own judgment. We credit 'the testimony of
Stanley.
While on the subject of Stanley's credibility, we shall,take but of
chronological and topical order another incident in which he was
1060 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
involved. On the occasion of Stanley's asking Assistant Superintend-
ent Todd about the chances of his getting back to open-hearth work,
after his lay-off in March 1938, Todd said that it would probably be
3 years before operations returned to normal, as it would take that
long, in Stanley's words "to whip this thing down, this labor trouble,
and that the men that stayed with the company (meaning those who
remained `loyal') would be taken care of." Todd had a different ver-
sion of this conversation, in which he admitted that they talked about
business prospects, the effects thereon of the sit-down strikes recently
in vogue, and Stanley's regrets for having joined the C. I. O. He
claimed to have made light of the conversation and, in the main, to have
merely - assented to observations made by Stanley himself. When
asked how he happened to know which employees in his department
belonged to the C. I. 0., Todd testified to an uncanny faculty of detect-
ing them-"by their countenance ... in plain terms, a sheepish look."
They bear this stigma, he thought, out of a sense of shame, and not
of fear, "to face their supervisor with something they have done." We
do not credit Todd's version of his conversation with Stanley.
The activities of the S. W. O. C. organizers ended abruptly in Jan-
uary 193.7 when the Ohio River swelled over its banks and flooded a
large section of the countryside, disrupting the life of the community
and shutting down the respondent's regular operations at the mill for
a couple of months. In May 1937 the plant was again in normal
operation, and the S. W. O. C. resumed its organizational activities.
Again, company police checked the organizers' activities wherever
carried on. The respondent also released another flow of anti-union
literature. At about this time, too, occurred the events referred to in
Section III C 4 above, involving the Armco Employees' Protective
Association. Petitions were being circulated and posted on the prem-
ises for signatures under the'apparent sponsorship of that Association,
reading as follows :
An organization to protect ourselves and our jobs from the
actions of sit-down strikers, labor organizers, and other forms of
labor strife.
We, the undersigned, do hereby agree to protect ourselves from
the actions of strikers or labor organizers to extent as we see fit
in so long as we are not endangering our life or limb in so doing.
We agree that should a strike occur anywhere within our midst,
that we will do all in our power to keep our mill operating and
our jobs safe.
An outstanding incident of that immediate period was the action
of Ed Downs, •a'roller in the sheet-mill department who at the time
of the 'hearing was under indictment for having broken into the
S. W. O. C. offices with intent to steal. Downs, whose animus toward
0
AMERICAN ROLLING MILL COMPANY 1061
the C. I. 0. was outspoken and well known'to employees, broke into
its offices in Ashland on the night of May 31, 1937, and stole the union
records. He called at the home of his superintendent, L. A. Salender,
and said that he had the C. I. 0. records. Salender testified that he
upbraided Downs for putting "the management in an awful position,?'
and that he told the latter that he was going to call Chief McIntyre,
whereupon Downs disappeared. Salender called McIntyre at the mill
to relate what Downs had said. After considerable shuttling between
the homes of Salender, Downs, Vigor, and company attorney Robert T.
Caldwell, McIntyre and Salender arrived at the home of George E.
McCullough, Downs' general foreman and intimate friend. There
they found that Downs had left the package for safekeeping. They
took the package, still unopened, to Caldwell's home where they de-
livered it into the latter's possession in Vigors' presence. • Caldwell
and Vigor went at once to the hotel where M. H. Powers, the S. W. 0. C.
organizer, then resided, and Caldwell turned the package over to
Powers with the explanation that he had received it from an Armco'
employee.
The next day, at a conference between Vigor, Russell R. Smith,
Caldwell, and McIntyre, it was decided to send for Downs. McCul-
lough-was delegated, as a friend, to bring him in, which he did. Downs
admitted the theft to them, saying that he had thrown some of his
booty into the river. He further said that he had gotten' drunk and
broken into the premises to check on rumors he had heard that the
S. W. 0. C. had 1,700-1,800 members. McIntyre then turned Downs
overlto the city police. The respondent suspended Downs from work
indefinitely but later reinstated him. His employment record, in evi-
dence, contains an entry made June 10, 1937, that Downs was granted a
vacation -Nvitli pay effective June 1, amounting to 40 hours, or 1 week,
at $59.60. His place was not filled during the suspension, which lasted
'3 weeks. However true it may be, as' the respondent claims, that it
denounced Downs to his face for such conduct laying the respondent
open to possible criticism, it did not repudiate him publicly but rather
condoned and ratified what he did by making him whole for loss of
time resulting from his confessed misconduct." As to the respond-
26 A Christmas bonus of $10 was paid to Downs in the week ending December 18, 1937.
For the week ended December 25 Downs was paid, in all, the sum of $154 30 During
that week he had worked 2 days and earned $35 10 inclusive of bonus The balance of
$119 20 credited to him on his pay slip as a deduction for that amount of cash previously,
at sonic unidentified date, advanced to him, is equal to 10 days' pay at his regular late
of $11 92 per C ay Significantly, that sum of '$119 20 is the amount of base pay Downs
would have received for 2 weeks of his suspension period in June 1937 , at the normal
40-hour week on which his vacation pay of $59 .00 for the third week of that period was
calculated •
The respondent claims that the sum , of $119 20 was rather , paid to him as one of the
employees to whom pay for 15 working days per month is guaranteed Tc sustain this
claim the respondent points to Downs ' time record , in evidence , showing that up to Decem-
ber 25, 1937 , he had worked only 5 clays that month. Ossie Edmund . Justice, the respond-
1
1062 DECISIONS OF'NATIONAL LABOR RELATION'S LOARD
ent's accountability for Downs' act, it is to be remembered.too that as a
roller, holding the same minor supervisory job as "Babe" Sloan, here-
tofore discussed, he was identified by the employees, from his authority
and duties, as one of the respondent's plant bosses. In fact, Nicholas
Conley testified, without contradiction to an argument between Downs,
and Turn Foreman Orval Felty in the late fall of. 1937 as to which
of them was-boss. Downs insisted that he would give orders as in the
past. Downs had ordered men about not only in sheet-mill operations,
but in'such things as watering the garden, cleaning the fish pond, and
the like.
Moreover, within a few days after Downs was placed under suspen-
sion, Jack Jones, an employee, started a petition around among the
employees for Downs' reinstatement. A number of employees refused
to sign it. Superintendent Salender, whose denials we cannot credit
in the face of clear and positive testimony of several witnesses and in
view of Salender's palpably anti-union record in the plant, accoin-
panied Jones and urged men to sign the petition. Salender told a
meeting of employee repesentatives that Downs' mistake was excils '
able, and exhorted them to support his reinstatement. Of a contrary
mind were some 10 to 15 representatives who, at a General Employee
Committee meeting held June 2, 1937, presented a resolution condemn-
ing the robbery, proclaiming it "the result of the propaganda of vio-
lence spread_ around the mill" and "the natural outgrowth of organiza-
'tibns such as the ARMCO Protective Association." ,By a vote of 40 to
15 the resolution was tabled.
As he admitted, Salender received the signed petition from Jack
Jones, turned it over to Russell R. Smith, and on June 21, 1937, Do-,. ns'
out's chief timekeeper, testified that sometimes a guaranteed man is paid off in full before
the end of his month if it is known that there will be no work available for him during
the iemamder of the month. No evidence was offered by the respondent, however, to
prove that Downs did not work, or that work was not available to him between December
26 and 31 The time record for the week ended Tanuary 1, 1938, was not pi oduced ; nor
was Downs' pay slip for the latter or any subsequent week produced As cusiomyril,y the
shotage guaranteed against is paid to the employee at the end of the week in which the
calendar month closes, these records would have established that Downs dud or did not
woi k during the last 6 days of the year, how much pay he eained, if lie did w of k , and
whether or not he was paid the guarantee attei the close of the month Indeed for the
preceding month of November 1937, although Downs had no work from the 23rd to the
80th , and had only had 12 days of work up till then, he was not paid the guaranteed
difference of $35 76 until December 4
Three other confusing points were left unexplained by the respondent one, what the
symbol "PS" before the $11920 credit on Downs pay slip signifies; another, the nature
of the "Cash charge of that precise amount on Downs pay slip, and when that transaction
had occurred between him and the respondent ; and, last , why on December 4 a 1 percent
deduction for social security taxes was made on Downs guaranteed differential for Novem--
bei, while none was made theieon on December 25 for the latter month.
We think that'when the Board's attorneys called' attention at the hearing to the inter-
pretation of the records and inferences' which might be made therefrom, that Downs was
in fact paid for the time during which he was under suspens'on in Tune 1937, the respondent
was under a duty to come foiward with adequate information at its disposal to dispel the'
prima facie showing adverse to it , or else suffer such proper interpretation and inferences
to be made The respondent failed in this duty, and we find that Downs was se paid
AMERICAN ROLLING MILL COMPANY 1063
suspension was lifted. Although his employment record would seem
to. indicate, by an entry made on September 27, 1937, that he did not
return to work until that clay, which might be borne out by Downs'
own testimony that he stayed away for "around 2 months," we shall
not suppose that' the respondent also paid him, as it appears from his
pay-roll sheet that it did, for several months of prolonged absence from
work.
Word passed around the plant that C. I. O. members could be re-
stored to the good graces of the respondent only by bringing their
membership cards in to some supervisor, tearing them up, and re-
nouncing allegiance to the Union before him. Sometime after July
1937 William'Franklin Huff, a man who had been in the respondent's
employ for 16 years, did just that before Russell R. Smith, and threw
the remains of his card into Smith's waste basket. Superintendent
Flaherty was involved in several such scenes a little later. Earlier, on
June 16, 1937, Carl Bates, a vice president of the S. W. O. C. local,
came to Superintendent Hayes N. Holstein for help in writing out
his resignation. Holstein testified that he declined to take any part
in that performance, but instead called up the local newspaper editor
and arranged for Bates to meet the latter and have it clone. Other
employees, for their own protection, at times denied that they had
joined the Union, and at others; if it was known that they had joined,
pretended that they had dropped out.
Among some of the more subtle means employed by the respondent
to inveigh against the C. I. O'., ,was the posting on official bulletin
boards of reports-by mill representatives, who keep contact with cus-
tomers in the field,'and of news letters on current conditions. A re-
port dated October 11, 1937, was posted stating that a certain customer
"was ,down because the C. I. O. -had demanded a 25 % to 30% in-
crease in wages . .. He decided to shut. the plant clown .. ." • It
went on to te11_the tale of an employee who had to quit his employment
because lie was in arrears in the payment of dries to the'C. I. 0., and the
fines leyied on him for his delinquency were so severe that he could
not afford to pay them. The posted "News of the Week" dated No-
vember 23, 1937, read "At the present time, (the mill 'representatives)
report a continued feeling of unrest, especially in the automobile
plants. They have been able to predict quite accurately the times and
places when labor trouble would break out. The Executives in the
Automobile plants give them to understand that it is impossible to
plan and execute a production schedule due to their troubles at 'the
present time with labor. They get assurance from labor union heads
that there will be no trouble, and the men in the ranks take it upon
themselves to disobey the officers of their union, so that there is no
one with whom an agreement can be reached that will be binding to
all parties."
1064 DECISIONS or, NATIONAL LABOR RELATIONS BOARD
By the end of 1937 the more overt signs of the respondent's opposition
to self-organization of its employees began to diminish. Instructions
had come down from management to the supervisory staff which evi-
dently had the effect at least of attenuating the grosser forms of anti-
union action. As William H. Tague, one of the erst« hile foremen of
the assigned maintenance department,^.quotecl Superintendent Am-
burgy talking at a supervisors' meeting in the summer of 1937: "You
fellows can't talk about the C. I. 0., because it is against the Wagner
Labor Act, but you can do everything in your power tokeep the boys
from joining the C. I. O. You have friends and. we have got friends,
to be influenced that way, and don't- come right out, but you can' do
all the insinuating you want to, but don't say anything against the
Wagner Labor Act."
However, the respondent's opposition soon reasserted itself overtly.
When Harmon Stull, a trustee and active member of the S. W. O. C.,
was elected chairman of his departmental Plan committee for the year
1938, Superintendent Salender, on congratulating him,' asked for his
cooperation and suggested that in reward Stull might be elevated
to a foreman's position, as had been his predecessor in the office of
Chairman, Millard Blevins. • In their respective departments Charles
E. Lowe and Dallas Conley also had such rewards held out to them.
As Lowe was not then an employee representative, his foreman was
only trading for abandonment, of Lowe's union activities. In Con-
ley's case, both that and a more congenial attitude-toward the Plan,
as an employee representative, were asked of him:
Once before Salender had shown concern with Stull's contumacy
as an employee representative, when the latter, in a negligible minor-
ity, had voted against publicizing the July 14, 1936, petition endorsing
the Plan and condemning outside labor oganizations. On that oc-
casion, Salender upbraided him for such conduct, enjoining him to
"straighten up" and "quit taking the attitude" he displayed. Stull
took Salender's bidding as well as blandishment lightly to heart. He
was known among the men to fight vigorously for them. In April
1938 he came to Foreman Donald Killin with a grievance on behalf
of one of his constituents. Killin urged Stull to reflect upon his own
actions and see if he could not mend his ways before they got him into
trouble on his job. His actions at this time, when the respondent had
just effected a wholesale lay-off of employees, were conspicuous for
their fearlessness, so, that even employees outside his departmental
jurisdiction sought him out to present their grievances. At a Gen-
eral Employee Committee meeting held April,6, 1938, Stull proposed
a resolution that the respondent be asked to restore recently laid-off
employees to their jobs, when that was done, according to their senior-
ity. That was the respondent's announced policy, but Stull had heard
AMERICAN ROLLING MILL COMPANY 1065
rumor's that it would not be followed in practice. Pricer F. Lyons
and Arthur Quade, officers of, the Plan, took the floor against the reso-
lution on the ground that the respondent had the right to hire men
back into service as it pleased, and carried the resolution to defeat.
Pricer Lyons, Quade, and Noah Wellman held, dual office in the
Plan and the L. A. W., discussed in Section III C 4 above. The last
named was identified by several Board witnesses as the respondent's
paymaster. - Although the respondent's counsel disputed this, it of-
fered no proof of the nature of his employment. The record estab-
lishes that he was in the timekeeping ,office, and that Quade worked in
the general ofriee. Lyons' status in the grey-iron foundry was in
considerable dispute. He was the brother of Carl M. Lyons, general
foreman of that foundry. Employees generally -regarded Pricer
Lyons as part of supervision. He attended at least one meeting of
foremen, , that of August 6, 1937, at the Norton blast furnace. In
their business contacts with him while they were foremen in other
departments, Tague and Gadd understood him to'be "back-up man"
to his brother, the general foreman, in the latter's absence. It seems
reasonably certain and we find that he was a work leader among-his
'men, if not a full supervisor.
After the instal-it, hearing got under way, the L. A. W. held a
meeting on July 14, 1938, off the respondent's premises, at which
full support to the respondent and the Plan was voted. It further
went on record to "resent the charges" made in criticism of the
respondent's policies, and to urge ,the respondent to continue its
activities; to "resent the implication", that the employees would so
readily be dominated; to proclaim "that the management . . . should
be free from, the harassment of this trial at this time to devote their
energies and abilities" to other problems; to condemn the C.J. 0.
for filing false charges; to "condemn and detest the action of Charles
0. Pergrem, a C. I. 0. member, who for the past fourteen years had
been employed by the (respondent) and . . . has received good wages
... and who now at this time testifies in this case against . . . his
fellow employees . . ,. and bites the hand that has fed him. . ."
Lumping the C. I. 0. with "Communism, Nazism and' such like organi-
zations that dissipate the minds of men-this'was , posted for February 16 and 17 on the rigger
,helper "C" job. The schedule placed in evidence to shoe such posting
is untrustworthy . It is concededly not th 'e one actually used. I ii ibei•
admitted that he made up for use another , hew one with various changes
cohfg ning to the iearrahgenient of forces . Tlie fespondeiit did not
produce the final schedule. Klaiber testified that Kellough worked the
two turns for which Evans is said to have been scheduled ; but was
unable to explain satisfactorily why, if Kellough had been called out
specially to fill in for the missing Evans , the usual clerical notation
to that effect was omitted froiri the force reports for those days. We
believe that Evans was not really scheduled for Work after February
12, and that he called in oh the 14th and vTas so ihfornied.
'Evans did not report for work again thereafter but baited , as Was
the custom in protracted slacks, to be called out . About March 1i not
having heard from the ,plant, he called Riddle to inquire as to the
prospects for lvok. Riddle said that his card had been "pulled" and
that he would have to see Flaherty if he wanted to get ' bdelc to Work.
Ei,ans took that to iiiean that his einploynieht had been terminated.
He did not consider the janitor 's job worth pursuing , and so decided
trot to see Flaherty . On March 10 Evans received a Visit froin K