Auburn Foundry, Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1940

26 N.L.R.B. 878 (N.L.R.B. 1940)

In the Matter of AUBURN FOUNDRY, INC., and LODGE 1998 OF AMAL-
GAMATED ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF
NORTH AMERICA, THROUGH THE STEEL WORKERS ORGANIZING
COMMITTEE AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL
ORGANIZATION
Cases Nos. C-925 and R-810
ORDER VACATING AND SETTING ASIDE DECISION,
ORDER AND DIRECTION OF ELECTION, SUPPLE-
MENTAL DECISION AND AMENDED DIRECTION OF
ELECTION, SECOND AMENDED DIRECTION OF ELEC-
TION, AND THIRD AMENDED DIRECTION OF ELECTION
August 20, 1940
The Board, on August 31, 1939, having issued a Decision, Order
and Direction of Election; and on October 20, 1939, having issued a
Supplemental Decision and Amended Direction of Election; and on
November 16, 1939, having issued a Second Amended Direction of
Election; and on December 15, 1939, having issued a Third Amended
Direction of Election, and the Board having given due notice that
on August 16, 1940, or as soon thereafter as might be convenient,
unless sufficient cause to the contrary should then have appeared, it
would vacate and set aside its Decision, Order and Direction of
Election, issued August 31, 1939, Supplemental Decision and Amended
Direction of Election, issued October 20, 1939, Second Amended
Direction of Election, issued November 16, 1939, and Third Amend-
ed Direction of Election, issued December 15, 1939, and no objections
-having been filed with the Board, and the Board desiring to take
further proceedings in this matter,
IT IS HEREBY ORDERED that the said Decision, Order and Direction
of Election, issued August 31, 1939, the said Supplemental Decision
and Amended Direction of Election, issued October 20, 1939, Second
Amended Direction of Election, issued November 16, 1939, and Third
Amended Direction of Election, issued December 15, 1939, be, and
they hereby are, vacated and set aside.
26 N. L . R. B., No. 93.
878
AUBURN FOUNDRY, INC.
[SAME TITLE
879
Decided August 24, 1940
Jurisdiction : foundry industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: espionage and surveillance; anti-union
statements; distorted explanation of rights under the Act; threats of discharge;
threats to cease operations.
Company-Dominated Union : employer's participation in formation of suggesting
formation of; solicitation of members-contribution of support to: furnish-
ing meeting places and- bulletin boards-permitting employees to solicit
members and circulate petitions in behalf of, on company time-indicia of
domination: consummation of agreement after cursory negotiations.
Discrimination: discharge and lay-off of employees because of union activities:
charges as to discrimination against one employee, dismissed.
Remedial Orders : reinstatement and back pay awarded; company-dominated
union disestablished; contract abrogated.
Practice and Procedure : petition for investigation and certification of repre-
sentatives dismissed without prejudice because of lapse of time since date of
filing.
Mr. Herbert H. Shenkin, for the Board.
Mr. Dan M. Link, of Auburn, Ind., for the respondent.
Mr. W. W. Ketchum and Mr. W. D. Stump, of Auburn, Ind., for
the Association.
Mr. William Strong, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Lodge 1998 of
Amalgamated Association of Iron, Steel and Tin Workers of North
America, herein called the Amalgamated, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated
March 28, 1938, against Auburn Foundry, Inc., herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), (3) and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. The complaint alleged in substance that the respondent (1) dis-
couraged membership in the Amalgamated by discharging Robert
Livergood, and laying off Arthur Miller, employees of the respondent,
for the reason that they joined and assisted the Amalgamated and
engaged in concerted activities with other employees of the respond-
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent for purposes of collective bargaining and other mutual aid and
protection; 1 (2) instigated the formation of the DeKalb Iron Workers
Association, Inc., a labor organization, herein called the Association,
fostered, promoted, and encouraged its growth, and dominated, sup-
ported, and interfered with its administration; (3) refused to recog-
nize and refused to bargain with the Amalgamated as the exclusive
representative of the employees of the respondent within an appro-
priate unit, although the majority of such employees had designated
the Amalgamated as their bargaining agent; and, (4) by the foregoing
acts and refusals and by other enumerated acts interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The complaint and accompanying notice of hearing were duly
served upon the respondent and upon the Amalgamated. The respond-
ent filed an answer, admitting the allegations in the complaint as to
the interstate aspects of its business, and denying all the allegations
of unfair labor practices.
Pursuant to notice, a hearing was held on April 7, 8, 11, 12, 13, 14,
and 15, 1938, at Auburn, Indiana, before Martin Raphael, the Trial
Examiner duly designated by the Board. At the beginning of the
hearing, the Association moved to intervene. The motion was granted
by the Trial Examiner. The Board, the Association, and"the respond-
ent were represented by counsel and participated in the hearing.
During the hearing all parties stipulated that the allegation in the
complaint of refusal to bargain collectively should be dismissed with-
out prejudice, and that, instead, the Amalgamated would file a peti-
tion for investigation and certification of representatives. Accordingly,
on April 8, 1938, the Amalgamated filed with the Regional Director a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the, respondent, and re-
questing,an investigation and certification of representatives pursuant
to Section 9 (c) of the Act. On April 16, 1938, the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Sections 3 and 10
(c) (2) and Article II, Section 37 (b), of National Labor Relations
Board rules and Regulations-Series 1, as amended, ordered an
investigation and consolidation of the two cases' for purposes of
hearing.'
At the hearing, full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues,
was afforded all parties. During the course of the hearing, the Trial
Examiner, made a number of rulings on motions and objections to the
I At the hearing , the complaint was amended ,to. include allegations pertaining to the respondent's
refusal to reemploy Wayne Nichols, in violation of the provisions of the Act.
3 On May 2, 1938 , a second order of consolidation and direction of investigation and hearing was issued
by the Board , ordering that the consolidation be made nunc pro tune as of April 11, 1938, and that one
record of the hearing be made. The parties stipulated that this order , together with the stipulation, be
admitted as part of the record herein.
AUBURN FOUNDRY INC. 881
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On September 21, 1938, the Trial Examiner issued his Intermediate
Report, wherein he found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), and (3) and Section'2 (6) and (7) of the
Act. He recommended that the respondent cease and desist from its
unfair labor practices; disestablish and withdraw recognition from the
Association; cease giving effect to its contract with the Association;
and offer reinstatement with back pay to Robert Livergood and
Arthur Miller. He found further that the respondent, had not
engaged in unfair labor practices by refusing to reemploy Wayne
Nichols, and recommended the' dismissal of-the complaint in that
regard. On October 15, 1938, the respondent and the Association•filed
exceptions to the Intermediate Report, together with briefs in support
of their exceptions, and requested oral argument before the Board.
Pursuant to notice duly served upon the parties, a hearing for the
purpose of oral argument was held before the Board in Washington,
D. C., on March 28, 1939. The respondent and the Association were
represented by counsel and participated in the argument.
On August 31, 1939, the Board issued its Decision, Order and
Direction of Election 3 in this proceeding. On October 20, 1939, the
Board issued a Supplemental Decision and Amended Direction of
Election,' on November 16, 1939, a Second Amended Direction of
Election,' and on December 15, 1939, a Third Amended Direction of
Election.' On August 20,,1940, pursuant to notice, the Board issued
an Order Vacating and Setting Aside Decision, Order and Direction
of Election, Supplemental Decision and Amended Direction of Elec-
tion, Second Amended Direction of Election, and Third Amended
Direction of Election.
The Board has considered the respondent's and, the Association's
exceptions to the Intermediate Report and the arguments in support
thereof, and, in so far as the exceptions are inconsistent with the
findings, conclusions, and order below' set forth, 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
Auburn Foundry, Inc., is an, Indiana corporation engaged at its
principal office and plant at Auburn, Indiana, in the general foundry
'14 N. L. R. B. 1219.
16 N. L. R B. 205
17 N. L. R. B. 756 •
'18N.L . R.B.323.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business and in the manufacture, sale, and distribution of coal stokers
and gray iron castings. During the summer of 1937, it operated an
additional plant at Columbia City, Indiana. In 1937 the respondent
secured raw material of the value of $309,000, constituting about 67
per cent of all the raw material used by it, from points outside Indiana.
During the same year, the respondent sold and distributed to points
outside Indiana about $548,000 worth of finished products, constitut-
ing more than 51 per cent of its total production.
II. THE ORGANIZATIONS INVOLVED
Lodge 1998 of Amalgamated Association of Iron, Steel, and Tin
Workers of North America, is a labor organization, affiliated through
the Steel Workers Organizing Committee, herein called S. W. O. C., a
labor organization, with the Committee for Industrial Organization,'
herein called the C. I. O. It admits to membership production and
maintenance employees of the respondent, excluding clerical and
supervisory employees, timekeepers, draftsmen, truck drivers, and
watchmen.
. DeKalb Iron Workers Association, Inc., is an unaffiliated labor
organization, incorporated under the laws of Indiana, admitting to
membership all employees of the respondent, except clerical and
supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion
In June 1937 the Amalgamated began organizing at the plant of
the respondent. At the outset, the Amalgamated had difficulty 'in
securing premises in Auburn, Indiana, in which to hold its meetings,
its members being informed by persons from whom they desired to
rent space that they would not rent to the C. I. O. Meetings of, the
Amalgamated were therefore held, until August 26, 1937, in the nearby
town of Garrett,* Indiana, at which time the Amalgamated finally
succeeded in securing quarters at Auburn. The fact that these meet-
ings were being held, as well as the fact that the meetings were being
attended by "some of our boys," 8 was known to the respondent in
July 1937.
The respondent, through its officers and other supervisory officials,
engaged in anti-union activity which impeded the efforts of the Amal-
gamated to increase its membership.
In June 1937 members of the Amalgamated distributed copies of
the '"Steel Worker," a newspaper published by the S. W. O. C.,
among the respondent's employees. Arthur E. Miller, an employee,
7 Now called the Congress of Industrial Organizations.
8 Foreman Roy Hampshire was in Garrett several times and saw the respondentt's employees going to
these meetings.
AUBURN FOUNDRY, INC. 883 ,
testified that at about this time, Burr Oswald Fink, president of the
respondent, held a meeting of a group of employees in his office, at
which meeting Fink stated that he did not like the distribution of the
"Steel Worker" and that he would ""board up his doors" if he had to
deal with the C. I. O. Fink, testifying, did not recall this meeting
and denied having made the statement that he would close the plant.
During the summer of 1937 some of the respondent's employees
filed with the Indiana State Division of Labor, charges of anti-union
threats made by the respondent's officials. Herman A. Brunka, an
investigator of the Indiana State Division of Labor, assigned to invest
tigate these charges, visited the respondent's plant in September
1937 and held conferences with various officials. Brunka made notes
at these conferences, from which he thereafter prepared typewritten
official reports. At the hearing herein Brunka used these reports to
refresh his recollection as to what occurred at the conferences. Brunka
testified thatlon September 14, 1937, Fink stated that the respondent
would not operate its plant "under the C. I. O." Fink testified that
he was "sure" he did not say that he "would not," and testified that
he' did not think he said "could not," and then testified that he did
not remember. In connection with other similar testimony as to
other such statements by Fink, Fink subsequently testified that he
never made "a blunt statement" that he would close his plant, but
that he did make statements to the effect that he would rather not
deal with the C. I. 0., and testified also that he always felt it would
be better to close the plant rather than deal with "outsiders."
We find, as did the Trial Examiner, that Fink made the statements
attributed to him substantially as set forth above.
Fink admitted at the hearing that he had obtained a bulletin
prepared by the National Association of Manufacturers, entitled
"A Message to Employees . . . Facts About the Wagner Act,"
and that he caused it to be copied and distributed the copies to the
respondent's employees, possibly in their pay envelopes. This was
the only written information about the Act disseminated by Fink.
The emphasis of this bulletin upon what the provisions of the Act
do not purport to do rather than upon the positive principles and the
rights which the Act establishes, serves to distort its true significance
and to mislead readers of the bulletin with respect to employees'
rights under the Act. We have already said that the 'distribution of
such literature constitutes a violation of Section 8 (1) of the Act.'
We so find in this instance, also.
'Other of the respondent's officers and foremen also indicated to the
employees the respondent's hostility toward the • Amalgamated .
According to Robert Livergood, W. C. Rowan, superintendent of the
Auburn plant until his death in January 1938, stated to him in
9 See Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L. R . B. 801.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1937 that the C. I. O. was "a bunch of Communists" and
would take money from the employees and do nothing for them. The
hearing herein was held after Rowan's death. We credit Livergood's
testimony. Emery McDaniel, an employee, testified that in the latter
part of 1936 Rowan and Foreman Hampshire had both stated that
they would not desire to remain in the plant if a union were successful
in establishing itself there. Livergood testified that in July 1937
Hampshire stated to him and to other employees, all of whom were
talking among themselves, in a group, that the C. I. O. "was a bunch
of Communists and thugs; just, racketeers in general ...," and also
testified that Hampshire made similar statements. on other occasions.
Benjamin Jones, an employee, testified that during the summer of 1937
Hampshire, during a conversation between them, had stated that the
C. I. O. was "a bunch of reds," and that any employee joining it would
lose his job with the respondent. Arthur Miller, an employee,, testi-
fied that in August 1937 Hampshire told him that all the members
of the C. I. O. at, the plant soon would be "looking for a new job."
Wayne Nichols, a former employee, testified that in August 1937, while
he was still in the employ of the-respondent, Hampshire stated to him
that anyone favoring any union would not hold his job for 15 minutes.
Hampshire. admitted saying that labor organizations cause more
trouble than they do good, and admitted making other remarks
derogatory to the C. I. O., but denied ever having said that he would
not want to continue to work for the respondent if a union were
successful in establishing, itself at the plant. He also testified that
it is his opinion that "the C. I. O. are a bunch of radicals and reds and
that they are not a good labor organization," but that the only time
he,voiced his opinion regarding unions at the plant was when he spoke
to Jones. Hampshire denied making the threats of discharge of those
joining the C. I. O. Upon the entire record we find that Hampshire
made the statements attributed to him by Livergood, McDaniel,
Jones, Miller, and Nichols. ,
According to Brunka, at a meeting held in September 1937 attended
by him and representatives of the respondent, Don Bushong, a
foreman, was charged with having discriminated against some em-
ployees in the distribution of work and by, reduction of their rates of
pay,10 after having threatened to discharge them if they joined the
C. I. O. Brunka testified that Bushong stated that he had reduced
the pay rates of the, persons in question because they had been "too
active in the C. I. O. movement." Albert White, one of the employees
involved, testified that in about August 1937, Bushong had stated to
him that he would lose his job if he "joined the C. I. 0." Lloyd White,
Albert's brother, testified that in August 1937 Bushong had told him
why he "should not join the C.I. 0., and what the C. I. O. was doing
10 The White brothers had been removed from a job at which they were paid on a piece-work basis and
placed upon a lower paying job.
AUBURN FOUNDRY, INC. 885
in Michigan"; that Bushong was thereby ". . . trying to keep me
from signing for the C. I. 0."; and that Bushong had told him that
he, Bushong, had authority to discharge anyone joining the C. I. 0.,
and had said that if White did so he would be out "weeding onions" at
one dollar a day. Otho Greenfield, an employee, testified that in
August or September 1937, Bushong stated to him that he had
authority to discharge "anyone belonging to the C. I. 0." . At that
time Greenfield was wearing a "C. I. 0. badge."
Bushong testified at the hearing that the Whites were removed from
their piece-work jobs because the work was only temporary and had
come to an end, denied the various statements and threats attributed
to him by the Whites and by Brunka, and testified that he was not
given an opportunity at the conference related to deny the accusations
made against him. Bushong testified that Greenfield spent too much
time in talking to other employees and that he, Bushong, had cautioned
him regarding this, but had not said anything about unions or the.
C. I. 0. button. On the entire record we concur with the Trial Exam-
iner in finding that Bushong made the statements attributed to him
by the Whites, Greenfield, and Brunka.
Sheldon Platter, an employee, testified without contradiction, and
we find, that Foremen Hampshire and Harry Hansel watched him
constantly after he joined the Amalgamated. Platter testified further
that George Siegel, another foreman, warned him that "they" were
watching his activities and work, and that he should "lay low."
Siegel admitted that on two occasions he had told Platter that he
was being watched, and further testified that this had been done
because Platter talked to other employees during working hours.
At this time Platter was engaged in various union activities for the
Amalgamated, generally during his lunch hour, and, while he also
-spoke to some employees during working hours, he did so without
discontinuing the performance of his duties. At about this time
Hinsey, Rank, Cruse, and other employees, were similarly engaged
during working hours, in talking and soliciting members on behalf of
the Association, without interference, surveillance, or objection by
the respondent.10a We find that the respondent's surveillance of
Platter's activities was due to the fact that they were on behalf of
the Amalgamated and not due to the fact that they occurred during
working hours.
Nichols testified that in 1937 Foreman Siegel said that, upon
instruction of Hampshire, he could not talk to Nichols because the
latter was a member of "the C. I. 0." Siegel testified that he might
have said "I darsn't talk to you. You are a C. I. 0.," but claims
that it was said only as a joke. By his failure to deny and his evasive
replies, however, Siegel in effect admitted that Nichols did not appear
10 - Siegal noticed Hinsey 's activities , but said nothing to him.
323429--42-vol. 26-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to consider this remark as a joke, and that the conversation was not
accompanied by any smiles or laughter. While Siegel denied that
he had informed Nichols that Hampshire had instructed him not to
speak to Nichols, he admitted having discussed unions with Hamp-
shire, and testified that he had been told "to keep out of" the union
activities at the plant, and that he did so, "only just maybe kidding
once in awhile, that's all." We credit Nichols' version of the incident.
We find that by the foregoing acts and statements of its super-
visory personnel the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The organization of the Association
The Association had its inception on or about August 10, 1937,
when, as James Kester, Elza Shull, and Arvin Snyder testified, they
decided, after working hours, to organize an independent union.
Sometime that day, the sequence of events not being clear, these
employees approached Mefford, the foundry manager, because, in
the words of Snyder, "We wanted to know if he knew about the for-
mation of the independent union." Mefford replied that he had
nothing to do with it, and that he "didn't dare" say anything. On
August 10 Clifford Hart, then assistant superintendent of the
plant, asked Ray Antrup, an employee of the respondent for almost
10 years, what he thought of the C. I. O. and what he thought of the
advisability of forming an unaffiliated union. Antrup replied that he
would be "in favor of just a shop committee to go before the foreman"
with complaints, to' which Hart suggested, "how about noising that
around over the shop?" At the hearing, Hart could not recall the
exact date of this conversation, and denied that he had attempted
to influence Antrup thereby." We believe and find that Hart in-
tended to and attempted to influence Antrup to advocate an inside
union.
On the following morning, August 11, Employees Mavis, Zook,
and Hinsey, circulated a petition bearing the heading "We, the
undersigned, are in favor of a shop union," among the employees at
the plant." Mavis does not recall the exact date when the petition,
prepared by his wife at his request, had been prepared. The petition,
in evidence, bears the date "8/10-37." 13 On August 11, also, Asso-
11 Fink also denied that he had suggested to any of the employees that they form an "inside union,
although he "would not say" that he did not have the idea of forming one and he "would not say" that he
never mentioned such an idea to any of the foremen
ii Dammann testified that Hinsey circulated this petition Hinsey denied circulating it.
13 While other witnesses testified , as we have shown, that they decided to form an independent union
in the afternoon of August 10, after working hours, Mavis testified that these employees later asked him
how he "would feel about an independent order " and that he asked his wife to prepare the petition in
evidence one morning some time thereafter at about 6 30 a m. The petition bears the date August 10,
1937, and, it was testified , was circulated at the plant on August 11. Mavis says the petition was circulated
on August 10.
AUBURN FOUNDRY, INC. 887
ciation membership application cards, prepared at the direction and
expense of Shull, were distributed at the plant. All this activity
was conducted openly during working hours, with knowledge of the
foreman that it was taking place. The respondent did not object
to the circulation of the petition or the distribution of the Association's
membership cards.
According to Livergood, on August 11, 1937, Rowan stated to him
that he felt that Livergood was on the "wrong side of the fence"
and that the "A. F. of L. was just as bad as the C. I. O. . . ." and
informed him that a "shop union" was being organized at the plant.
We credit Livergood's testimony in this respect.
In the evening of August 11 the Association held a meeting of the
respondent's employees at the Owl's Club in Auburn. Notice of this
meeting was passed by word of mouth. Shull also had a "faint
recollection" that a written notice of the meeting was posted in the
plant.14 A vote taken at this meeting among the employees present
revealed that 57 favored the Association and 25 did not.
A very active organizational campaign was conducted by the
Association among the respondent's employees from August 11 until
September 1, 1937. Discussion and solicitation of members was
carried on during working hours by Hinsey, Mavis, Rank, Cruse,
Haynes, and other employees, without interference by the respond-
ent's officials or foreman, and without deduction by the respondent
of pay for the time so spent. Those engaged in these activities on
behalf of the Association were afforded the greatest latitude by the
respondent. Hinsey repairs and experiments on stokers, and is
stationed in the stoker division. Although Hinsey had few duties
in the foundry, he was there almost constantly during the organiza-
tional campaign of the Association, soliciting memberships for it.
In contrast to the freedom which the respondent accorded employees
active on behalf of the Association, the respondent was hostile toward
the Amalgamated. Thus, as we have shown, Fink threatened to close
the plant rather than deal with the C. I. 0., and other of the respond-
ent's supervisory officials made various remarks derogatory to the
Amalgamated, threatened its members with discharge and other
forms of discrimination for their activities on behalf of the Amalga-
mated, and, in some instances, actually carried out the threatened
actions.11
The respondent also in other ways indicated its hostility toward
the Amalgamated and its preference for the Association. During
this period, Albert White testified, Bushong said to him, "I gave you
a job and I think you ought to sign with the shop union," and stated
to him that "the people that joined the C. I. O. would lose their jobs."
14 Dammann saw three notices of Association meetings posted in the respondent 's plant during August,
1937.
15 As is shown later, these included the discharge of two employees.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lloyd White testified that Bushong said to him that those who joined
the Association would receive a 5-cent raise.1° Bushong denied
making these statements, but admitted that "we might have possibly
talked about" unionism. Brunka testified that at the meeting in
Fink's office, previously mentioned, he had confronted Bushong with
the accusation that Bushong had been "soliciting or helping" the
Association, and that Bushong had said "that there had been a
certain amount of that being done and of course, he didn't know the
law." According to Brunka, Bushong admitted that he was present
during solicitation by others on behalf of the Association. Bushong
testified that he had not been afforded an opportunity at this con-
ference to deny the accusations. Marion Warner, an employee,
called as a witness by the Association, testified on cross-examination
by the Board's counsel that Bushong had spoken against the C. I. O.
and in favor of the Association on several occasions. Bushong denied
this at the hearing. On the entire record we find that Bushong
made the statements attributed to him by the- White brothers,
Brunka, and Warner, and that he knowingly permitted Association
activity during working hours, and actively assisted it.
According to Clarence Sherwood, in August 1937 Clarence Meyers,
foreman of the 4:30 p. m. to 1:30 a. m. shift in the foundry, asked John
Sherwood, an employee, to induce other employees to join the Associa-
tion, which he called the "shop union," and told Clarence Sherwood;
who overheard the conversation, not to mention it to anyone. Meyers
denied the conversation. We credit Sherwood. ,
Charles Haifley, a witness called by the respondent, testified on
direct examination that Association membership cards were dis-
tributed in the plant during working hours, in the presence of Foreman
Hansel. Sheldon Platter and Clyde Eston Rohm, employees, testified
that Hansel solicited on behalf of the Association in August 1937,
while Brunka testified that employees present at one of the conferences
we have related, had stated that Hansel had requested them to join
the Association." Hansel denied all this. We credit Haifley, Platter,
Rohm, and Brunka.
At the Columbia City plant Carl Corello, the foreman in charge, facil-
itated Hinsey's activities on behalf of the Association by extending to
him the use of Corello's office for the purpose of holding a meeting of
employees and by permitting the distribution of Association member-
ship cards at the plant.
The respondent does not usually permit its employees to use its
office. Corello "had an idea" that Hinsey's meeting was in the
interests of the Association. Corello attempted to justify Hinsey's
11 All the employees received a raise subsequent to this alleged statement.
I' Fink testified that shortly prior to the hearing herein the Association complained to him that Hansel
was "being partial to C. I. 0. employees ." Hinsey, one of the complainants , testified that one of the griev-
ances concerning the partiality of Hansel was with respect to Hansel's refusal to lay off C. I. 0. members
before he laid off Association members.
AUBURN FOUNDRY, INC. 889
use of it by stating that a few days prior to Hinsey's meeting, Liver-
good had spoken to some of the employees about the C. I. 0., "and
I was giving them both an even shake." 18 Corello had read the Act
and knew that it was necessary for him "to stay neutral."
On September 1 or 2, 1937,19 a committee of the Amalgamated came
to Fink's office, and asked Mrs. Rhoedefer, the stenographer who met
them for an interview with Fink, stating, according to Nichols, that it
was to be for purpose of collective bargaining. Mrs. Rhoedefer denied
at the hearing that the committee informed her of the purpose of its
visit. We find that she was so informed.
Mrs. Rhoedefer stated to Nichols that Fink was out of town-"he
went to Fort Wayne." She testified that "a day or so later" she
informed Fink of the committee's visit. Fink testified that he did not
receive this information for several days and that he was then informed
merely that Nichols wanted to see him, without being told Nichols'
purpose. Fink, as we will show later, was in town on September 1
and 2, 1937.
Shortly prior to September 1, 1937, Hinsey and a committee of the
Association had prepared a contract between the respondent and the
Association. On the morning of September 1, Hinsey left this pro-
posed contract in Fink's office. A few hours later Fink called Hinsey
into his office, asked a few questions, and received membership cards
in proof of the Association's claim that it represented a majority of
the respondent's employees. Fink claims that he then checked the
cards against the respondent's pay roll, and found that the majority
of the respondent's employees had designated the Association as their
collective bargaining agent. A number of the cards were signed on
the back instead of the face of the card. Some of the employees
testified that upon refusing to sign Association membership cards
they were told to sign the back of the card to indicate that they had
been requested to join. Fink credited to the Association all the cards
shown him. That evening Fink and a committee of the Association
met at Hinsey's home. The terms of the contract were agreed upon
at this meeting, and the contract was typed and executed on the
following day.20 This contract, among other things, recognizes the
Association as the sole collective bargaining agent of the respondent's
employees. The respondent thereafter posted notices at its plants
announcing the consummation of this contract.
After the contract had been executed, Association representatives
ie Corrello relates that one of the employees had informed him that Livergood "was around here trying to
scare us into believing that we had to join the union in order to work here ." Corrello informed the employee
that this was not true.
lY The record does not clearly indicate the date, but Nichols described it as "the day before they signed
the company union contract."
m Fink had read agreements which other employees had with labor organizations . This occurred during
August 1937 "when I was making it my business to find out."
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to solicit members, collect dues, and engage in other union
activities at the plant during working hours.
Bertram McNamara, field representative of the S. W. 0. C., met
with Fink on about September 17, 1937. Present also were Frank
Griber, field representative of the S. W. 0. C., and another representa-
tive of the respondent. McNamara informed Fink that the Amalgam-
ated represented a majority of the respondent's production and main-
tenance employees and desired to bargain collectively with the
respondent. McNamara suggested that a consent election be held
at the plant to prove the Amalgamated's claims as to representation.
McNamara testified that Fink informed him, in effect, that "he didn't
know whether he would deal with us," that he would not agree to a
consent election, and that "the Board could not force him to deal with
us"; questioned the ability of the Amalgamated and of its bargaining
committee adequately to represent the respondent's employees;
stated that he, Fink, "would go out of business before he would deal
with us-over his dead body was the way he expressed it"; and said
that he did not like "our organization,"-the Amalgamated. At the
hearing Fink could not recall having made the statements related by
McNamara. In regard to a statement which he was said to have made
to the effect that he would rather not deal with the C. I. 0., Fink
testified that he had "made statements, of course, that I would rather
not deal with anybody on the outside of our organization or any-
thing, and have held pretty much to that. I feel that we are sufficient
within ourselves to run our business. Yes, I probably have made
statements of that kind." We credit McNamara's testimony and
find that Fink made the statements attributed to him.
At the hearing several witnesses testified, in substance, that they
joined the Association because they had been coerced and intimidated
into so doing."
We find that the respondent dominated and interfered with the
formation and administration of the DeKalb Iron Workers Association
and contributed financial and other support to it, thereby interfering
with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act. We find further that the Associa-
tion is incapable of serving the respondent's employees as their
genuine representative for the purposes of collective bargaining.
C. The discriminatory discharges
1. Robert Livergood
The complaint alleges that the respondent discriminatorily dis-
charged Robert Livergood on August 4, 1937, because of his activities
on behalf of the Amalgamated in the respondent's plant. The
n Two of these witnesses had been called to testify by the Association in its effort to show the voluntary
action of its members in joining it.
AUBURN FOUNDRY, INC. 891
respondent, in its answer, denies that Livergood was discharged, and
claims that he voluntarily left its employ. During the hearing the
correct date of the termination of Livergood's employment was
shown to be August 21, 1937.
Livergood was employed by the respondent as a molder's helper
in May 1936 at an hourly wage of 35 cents.22 He continued as a
molder's helper for about 4 weeks, and was then placed to work at a
"squeezer" machine, with compensation at the rate of 55 cents an
hour. Shortly thereafter Livergood left the respondent's employ, but
soon returned and was reassigned to the "squeezer." Six or eight
weeks after Livergood's return, Rowan assigned him to work as a
member of a group of four. Livergood' s earnings increased still
further at this job, and by June 1937 they averaged about $31, and
sometimes reached $40 a week.
During the summer of 1937 the respondent found it necessary to
lease an additional plant at Columbia City, Indiana. Rowan selected
18 or 20 employees for transfer to Columbia City, primarily to ac-
quaint the newer employees with the methods of work. Livergood
was among those requested to go to Columbia City. The transfer
was temporary, and Livergood and the others were informed that
they were to return to Auburn as soon as their tasks at Columbia
City had ended.
In July 1937 Livergood joined the Amalgamated and was very
active on its behalf. This fact, according to Livergood, was known
throughout the plant. Carl Corrello, foreman at Columbia City, and
Rowan both knew that activities on behalf of the Amalgamated were
being carried on both at Auburn and at Columbia City, and knew
that the Association was being organized . Corrello testified that
"everything was more or less in a labor upheaval at that particular
time." In reply to the question whether he knew that Livergood
was one of the active "talkers about the union," Corrello replied, "I
knew Mr. Livergood talked too much at the shop. What he was
talking about I did not know." 23 Corrello noticed this activity on
the part of Livergood on six or eight occasions during the 2 weeks
preceding Livergood's discharge. As we have related,24 on August
11, 1937, Livergood was called into Rowan's office. Rowan then
stated to Livergood his displeasure at Livergood' s union activity,
told Livergood he was "on the wrong side of the fence," urged upon
him the advisability of joining "the shop union," stated that he,
Rowan, knew that Livergood was a member of the C. I. 0., and
stated, in the words of Livergood, that if he, Livergood, would "string
v Approximately $20 a week.
33 Corrello also testified that shortly after his arrival at the Columbia City plant he decided that Liver.
good was not a "machine man ." Corrello based his conclusion in part upon Livergood' s "talking.,'
24 See Section III A, supra.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
along with them" he would "be sure of his job." Livergood promised
to think the matter over. Thereafter Livergood continued to be as
active on behalf of the Amalgamated as he had been theretofore.
We find that Rowan and Corrello knew that Livergood was an active
member of the Amalgamated.
At Columbia City Livergood worked as a member of a group of
four persons engaged in the production of Tokheim bases. This was
the work which Livergood had performed at Auburn.
During the week of August 9 the group in which Livergood worked
was reduced to three men, Livergood, Smurr, and Bazzinet. Corrello
testified that on about August 21 Smurr complained to him regarding
Livergood's work. Corrello then approached Livergood. According
to Corrello he asked Livergood whether he would like to take another
job in the plant and Livergood refused, using profane language.
Corrello claims that the job he offered to Livergood was that of
"second to the operator" on the Wayne base, and that by working
diligently, Livergood could have earned more money on this job than
on the Tokheim base job. Livergood's pay was to be 1 cent less for
each unit produced than that of the other employees on the Wayne
base job, all of whom were new men. Livergood testified that
Corrello asked him whether he would like to "go bucking," 28 a posi-
tion inferior to the one then held by Livergood. We find that this
job offered to Livergood constituted a demotion.
Corrello testified also that he told Livergood either to accept the
new job or go "out the front gate," and that Livergood replied that
he would return to Auburn. Livergood testified that he replied in
the negative to Corrello's suggestion, but did not actually refuse the
job offered him, and did not understand that he was being instructed
to take it. According to Livergood, Corrello then said that "maybe
it would be best if you went back to Auburn," and did not say any-
thing to him about the quality of his work. By this date a number of
the employees who had been transferred from Auburn to Columbia City
had returned to Auburn. Livergood testified that he was anxious to
return to Auburn because of his family,26 and that he understood
Corrello's statement to him to mean that it was now his, Livergood's,
turn to return to Auburn.
The Auburn plant was closed on the following day, a Saturday. On
Monday, August 23, Livergood returned to Auburn, but was informed
that there was no opening there for him. On August 24 he was again
advised by Hampshire that there was no opening. Hampshire also
stated, according to Livergood, that Corrello had no authority to
order Livergood's return to the Auburn plant. Upon Hampshire's
to A buck is a helper . This was the work which Livergood had performed when he was first employed
by the respondent . Other witnesses testified that bucking constituted a demotion from the work Liver-
good had been doing , carrying a lower rate of pay.
sa Livergood resided near Auburn, which is about 40 miles from Columbia City.
AUBURN FOUNDRY, INC. 893
suggestion , Livergood waited for Rowan , but the latter did not appear
at the plant that day . On August 25 Livergood again returned to the
Auburn plant , but "there wasn 't nothing ." He then complained to
McNamara , who on that day or shortly thereafter discussed the
situation with Fink , but without avail.
The respondent contends that Livergood was an unsatisfactory
employee, that his coworker , Smurr, was dissatisfied with Livergood's
work and had complained about it, and that Livergood was offered
another better job at Columbia City but refused to accept and left
the respondent 's employ.
Livergood's group at Columbia City originally had been required
to produce 130 molds each day , for which it received compensation at
the piece-work rate of $19 . 18 a hundred molds. The pay of each em-
ployee in the group depended upon the total number of molds which
he helped produce. The entire Tokheim base operation required the
use of two machines. Originally Livergood and Smurr operated one
machine, and the other two employees in the group operated the
other. During the week of August 9, after the group had been reduced
to three men comprising Livergood , Smurr , and Bazzinet , their re-
quired production was reduced to 80 molds a day. Bazzinet was a
new employee, and therefore he and Smurr operated the "cope"
machine, while Livergood alone operated the "drag" machine. Nor-
mally two men are required to operate the drag machine. On some
days the three men changed their positions , and Smurr operated the
"drag" machine , while Livergood and Bazzinet operated the "cope"
machine.
Smurr was absent from work on August 12. Livergood and Bazzi-
net, assisted by two other employees, who did not share in the pay,
produced 65 molds. Livergood and Bazzinet shared equal credit and
pay. On the following day Livergood was absent from work, and
Smurr , Bazzinet , and a third employee, Cramer, produced 80 molds,
for which the three shared in pay. Thus Livergood was to be paid for
about five molds more than Smurr. Subsequently, on about August
20 or 21, when the pay for this period was distributed, Smurr became
dissatisfied with the fact that his earnings for that week were lower
than those of Livergood and Bazzinet. Smurr did not know exactly
how many molds were credited to each person for that week, testifying,
"it was just told around the plant there in conversation" that on the
day he, Smurr, worked, more molds were produced than on the day
Livergood worked. Smurr was also dissatisfied with the fact that the
group was limited to 80 molds a day.
Smurr discussed the matter with Rowan and requested retransfer to
Auburn. He told Rowan that his group "has some difficulty" in
producing 80 molds daily, and that "we didn't make a satisfactory
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount of money." 27 When asked at the hearing, "Did you tell him
what you thought the cause of it was, who was responsible?" Smurr
replied, "Not that I remember of at the time." He stated that he
did not complain to Rowan about Livergood's work. Smurr testified
as follows respecting his conversation with Rowan:
He [Rowan] wanted to know what the trouble was and I told him
that we couldn't get the drags fast enough, and he wanted to
know about Bob, about his work, and I told him the same as I
told [testified] a little while ago that I didn't know whether Bob
couldn't do it or didn't want to do it.
Smurr asked Rowan whether it would be possible to have two men
instead of three on the Tokheim base job. Rowan asked Smurr which
of the other two employees he desired to have work with him. Smurr
did not make a selection, but said that he would "try it with either
one of them." Rowan told Smurr that he would discuss the matter
with Corrello. Smurr then returned to the plant and suggested to
Livergood that they work together, each operating one of the Wo
macbines.'8
Corrello testified that shortly after the conversation between
Rowan and Smurr, Rowan stated to him that "the boys are not
exactly satisfied," and that Livergood "hadn't been holding up his
end of it very well since he went to Columbia City," and had told him
to "go ahead and take care of it any way you see fit." Corrello also
testified that he suggested to Rowan that Livergood be placed at a
"squeezer ," and that Rowan had replied that Livergood was "no good
as a squeezer molder." Corrello, claims that he then stated to Rowan
that "personally, he [Livergood] is not satisfactory where he is at as a
machine operator," 29 to which, Rowan in turn replied that he, Rowan,
had not been able "to find a place yet" in which Livergood "was
satisfactory."
Hart also testified regarding Livergood's work at Auburn. He
knew about it only by way of hearsay. Regarding Livergood Hart
testified that "as to being an efficient man on the squeezer, I would
say no." No one had complained to Hart about Livergood's work.
Hart's conclusion that Livergood was inefficient was based upon Hart's
knowledge of the number of molds produced by Livergood on the
squeezer machine as reflected by Livergood's pay. Hart saw a pay
roll "not so very long ago," and noticed that Livergood's pay was
only $2.44 for a day and one-half work on the "squeezer." Hart ad-
mitted that at that particular machine it was difficult to produce good
27 On August 11 the group produced 80 molds. On August 12 (when Smurr was out) 65 molds, on August
13, 80 molds , on August 16, 90 molds , on August 17, 80 molds ; on August 18, 80 molds , on August 19, 75 molds;
on August 20, 80 molds.
28 Smurr and Livergood had worked together as members of a group at Auburn.
29 Corrello once offered Livergood a job at a "squeezer" machine at which Livergood would have worked
alone.
AUBURN FOUNDRY, INC . 895
castings and that as a result not only Livergood but also older em-
ployees were "liable not to make too much money out of it." When
confronted at the hearing with the fact that Livergood's earnings were
between $25 and $35 a week, and sometimes were as high as $40 a
week, and asked whether this was the average or better than the
average earning at the plant, Hart's retort was, "He makes that
much?" Hart later in effect admitted that the average earnings at
the plant were not as high as Livergood's.
We are not convinced that Rowan had been dissatisfied with Liver-
good's work. Aside from the statements which Corrello claims were
made by Rowan, all the evidence as to Livergood's work at Auburn
as well as at Columbia City indicates that he was a satisfactory
worker, and was so regarded by the respondent. His rapid rise in
earnings and his selection by Rowan for the Columbia City tasks are
in direct contradiction to Corrello's assertions. We do not believe
Corrello's testimony as to the statements made to him by Rowan.
Shortly after the conversation between Corrello and Rowan Corrello
approached Smurr and, according to Corrello, the following occurred:
I went out to Mr. Smurr and I asked him what the trouble was.
I couldn't get any satisfaction out of him. He wouldn't tell
me. I said, "your dissatisfaction, I know where it is, I think."
I said, "your dissatisfaction is with the production or the work
that Livergood is putting out." "Yes," he said "that was it"
so I asked him what change would be most satisfactory to the
floor for the best benefit of the floor, and he declined to answer
that . . .
Smurr testified that he did not complain to Corrello regarding
Livergood. Here again, as in Smurr's conversation with Rowan,
Livergood's name was brought into the conversation by the respond-
ent's official, not by Smurr.
Thereafter Corrello approached Livergood and, as we have related,
suggested that he work on another job.
At the hearing the respondent elicited further testimony from Smurr,
intended to prove that he had been dissatisfied with Livergood.
Smurr's feelings and reactions have relevancy in this proceeding only
in so far as they may tend to support the respondent's contention
that Livergood was an unsatisfactory worker, that Smurr actually
complained regarding Livergood's work, and that the respondent's
officials acted as they did toward Livergood either because of Smurr's
complaints or because of Livergood's unsatisfactory work, or both.
The record establishes to our satisfaction that Smurr was not in fact
dissatisfied with Livergood's work and had not complained about
Livergood. Thus, the record reveals that Smurr had worked with
Livergood in a team in Auburn, and described Livergood as being
"as good a fellow to work as I worked with on that job," and that
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"he was just as good a fellow as I ever had work with me." When
questioned whether the quality of "Livergood's work was different
than it had been for the period of time you were working with him in
the Auburn plant . . . or was it the same . . . ?" Smurr replied,
"Well, I don't know." Although Smurr testified that Livergood was
a good "helper," and that Livergood was a better worker when work-
ing in a team than alone, there is nothing in the record to indicate
that Livergood's function as a member of the group with Smurr and
others was that of a helper.
Smurr testified that when Livergood operated the drag machine,
he and Bazzinet "had to wait on the drags," and that after the men
changed machines, with Livergood and Bazzinet operating the cope
machine, "they couldn't get the copes fast enough." When asked on
cross-examination whether this was Livergood's fault, Smurr replied,
"Well, I don't know." At another point Smurr testified that he was
not delayed by Livergood and Bazzinet, and replied in the affirmative
to the inquiry whether "it was merely that you could run the drag
machine better than Livergood. That is what it came down to, is
that it?" Smurr stated at the hearing that if the group produced
80 molds a day, he could not blame Livergood for anything. The
group's production fell below 80 molds only on the day Smurr was
out, and did not affect his pay. Smurr had difficulty in reconciling
the fact that, although on the day he was out the group produced
fewer molds than on the day Livergood was out, Smurr's pay was
lower than that of the other two. In an effort to increase his earn-
ings, Smurr, as we have shown, suggested to Livergood that they
work together, but on separate machines.
Corrello, when asked on cross-examination why he did not transfer
Bazzinet, who was a much newer employee than Livergood, replied,
"because Livergood was not a machine operator." Corrello testified
that on the basis of his past experience it did not take him very long
to find out that Livergood was not an operator. Livergood's "talk-
ing" constituted one of the considerations upon which Corrello based
this conclusion. He reached the conclusion before he had received
any of the alleged complaints, having decided "from the start" that
Livergood was not a satisfactory employee. Nevertheless, Corrello
had never cautioned or spoken to Livergood about his work prior to
August 21. Rowan did not inform Corrello that he had ever cau-
tioned oe spoken to Livergood about his work. Despite his alleged
dissatisfaction with Livergood, Corrello claims that he intended to
place Livergood at a more remunerative task.
Livergood's alleged discharge constituted a major subject of the
conferences, previously mentioned, between Brunka and the respond-
ent's officials. According to Brunka, on about September 14, 1937,
he and Fink conferred with Corrello at Columbia City and Corrello
AUBURN FOUNDRY, INC. 897
said that he had discharged Livergood for inefficiency. At a later
date, according to Brunka, Fink told to him that Corrello was justified
in discharging Livergood, that he would "under no consideration"
reinstate him, and that, in any event, he, Fink, could not reinstate
Livergood "for different reasons," namely, because Livergood "was not
producing, inefficiency, and that he was sort of a trouble maker."
Fink denied having made these statements. We credit, as did the
Trial Examiner, Brunka's testimony. Thus, while Corrello testified that
Livergood quit, he and Fink had asserted to Brunka that Livergood
had been discharged.
About a week after Livergood's employ with the respondent had
terminated, he asked Henry Siegel, an independent contractor em-
ployed by the respondent, for a job. Siegel told him to appear for
work the next morning at 7 a. m. Livergood testified that he arrived
before 7 a. m. but was told by Siegel that he would not be employed.
Siegel testified that he did not employ Livergood that morning solely
because he arrived after 7 a. m.
In March 1938 Livergood met Siegel and asked him why he had
not been put to work in the preceding August. According to Liver-
good, Siegal replied that after he had hired Livergood he had thought
the matter over and, knowing that the respondent had dismissed
Livergood, had consulted Hampshire as to whether he should hire
Livergood; that Hampshire had advised him not to hire Livergood
as he, Hampshire, did not want to have Livergood coming into the
plant to talk to "the boys." Bowerman, an employee, who was
present at this conversation, corroborated Livergood's testimony.
At the hearing Siegel could not recall what was said during the con-
versation. Siegel became confused when asked to state in his own
words why he consulted Hampshire, finally saying that he spoke to
Hampshire after he had dismissed Livergood "to see if he cared
whether I used Livergood or not." Siegel knew that Livergood was
no longer employed by the respondent. He also admitted that this
was the first time he had thus consulted any of the respondent's
officials. He denied, however, that Hampshire told him not to hire
Livergood.
According to Bowerman, a few days prior to the hearing Siegal
stated to Bowerman that he, Siegel, could "get out" of the situation
created by his statements "by saying that I was tight" during this
conversation. Siegel did not recall this fact. We credit Bowerman.
Hampshire, called as respondent's witness, did not testify concerning
this conversation with Siegel, but stated that the respondent had
nothing to do with the employment of men in Siegel's group. The
Trial Examiner found that Siegel is not a credible witness. We credit
Livergood and Bowerman and find that Siegel made the statements
attributed to him and had consulted with Hampshire regarding Liver-
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good as he, Siegel, had related to Livergood and Bowerman. We
further find that Hampshire, who failed specifically to deny having
advised Siegel against hiring Livergood, actually did so advise Siegel.
We find that Smurr did not complain to either Rowan or Corrello
regarding Livergood, and that Smurr was not dissatisfied with Liver-
good's work, nor unwilling to continued working with Livergood.
We find, also, that Smurr's complaints were based solely on dissatis-
faction with his earnings and that they were without effect upon the
respondent's action toward Livergood, but that the respondent seized
upon them to lend some semblance of legality to its actions, which are
proscribed by the Act. We find, further, that Livergood did not quit,
but that the respondent discharged him on August 21, 1937, and has
since refused to reinstate him because of his membership in and activi-
ties on behalf of the Amalgamated, and that the respondent thereby
discriminated in regard to Livergood's hire and tenure of employment,
discouraged membership in the Amalgamated, and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The parties stipulated on the record as to Livergood's earnings for
10 weeks preceding August 21, 1937. We find that the average was
about $28.90 a week.30 Since August 21, 1937, until the hearing,
Livergood has been employed for short periods of time earning a total
of about $76. He desires reinstatement to his job with the respondent.
(2) Arthur Miller
The complaint alleges that Arthur Miller was discriminatorily laid
off on November 12, 1937,11 at which time other persons with less
seniority than he, doing the same kind of work, were being retained
by the respondent.
Miller had been employed by the respondent intermittently since
1918. His last period of employment began on December 10, 1934.
In February 1936 he was laid off by the respondent, and secured a
position at a Kendallville, Indiana, foundry. He lived at Auburn,
about 16 miles from Kendallville. Miller testified that on numerous
occasions between February and June 1936 he telephoned to and saw
Superintendent Rowan regarding reemployment at the Auburn
Foundry; that Rowan constantly promised Miller that he would be
reemployed as soon as a vacancy occurred; and that upon being in-
formed by Rowan in June 1936 that there was a vacancy, he immediate-
ly returned to work for the respondent. Miller denied that the re-
spondent requested him to return at any time during the period
tO The parties agreed at the hearing that an average weekly wage may be taken for the 10 weeks' earnings
shown in the record as the average weekly wage of Livergood.
It The parties stipulated at the hearing that Miller returned and worked for the respondent for I day on
November 15, 1937.
AUBURN FOUNDRY, INC. 899
between February and June 1936. He worked for the respondent
until November 12, 1937, when he was again laid off.
A month previous to this last lay-off Miller was elected vice president
of the Amalgamated. His activity and membership in the Amalga-
mated were well known to the respondent. In June 1937, after he
had been reemployed, Miller and other employees were called into
Fink's office, where a discussion with reference to sit-down strikes in
other cities occurred. Fink informed those present that he did not
want any such trouble at his plant, indicated his displeasure at the
distribution of the "Steel Worker," and stated that there were some
rumors that a strike might be started at the plant. Miller testified
that he disavowed any such intention.
As we have related, in August 1937 Hampshire stated to Miller that
all those who joined the C. I. O. would soon be looking for new jobs.
The respondent contends that Miller was laid off in strict conformity
with his seniority, for lack of work. Superintendent Hart testified
that between February and June 1936 Rowan had requested Miller
to return to work at the Auburn plant but Miller had refused. Hart
relates the incident in the following manner: "It has been customary
for the last few years whenever men needed jobs that I was supposed to
give them jobs, and when jobs ran out I was supposed to let the men
know so that they could lay them off or put them on, whichever it
might be. Of course, this particular instance, I imagine I notified
Mr. Rowan and he did the telling him to come to work, and of course
the next morning I had a job for him and he wasn't there to take it.
That would be as near as I could say, the only way I could recall."
Hart recalls that such an incident occurred in March or April 1936, and
recalls that Rowan had informed him that he had spoken to Miller,
and that Miller had refused to return. Subsequently, Hart testified
that this occurred in the early part of April, "I would imagine, in there
about that time because our heat at that time went up and of course
when the heat went up then was when we would need men." Thus,
says Hart, Miller's seniority was broken by his failure to report for
work pursuant to call in March or April 1936.
Rowan had not notified the respondent's office of Miller's alleged
refusal to return to work and the office records thereafter continued
to carry Miller's seniority as dating from December 1934.
Hart did not rehire Miller in June 1936, and knows nothing of the
circumstances of his reemployment at that time. Hart directed
Miller's lay-off. Testifying concerning Miller's seniority, Hart read
from a list, originally prepared from the records of the respondent,
showing the seniority standing of 231 employees as of September 11,
1937. On this list the date "12/10/34" appears against Miller's
name. Hart had crossed out this date in pencil and above it had
written "6/12/36," the date upon which Miller had last resumed
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment with the respondent. Hart testified that he made the
correction as to Miller's employment date after he received this list.
The list had several other such changes, in pencil. Hart had made the
change as to Miller, but not the other. Prior to changing this date
Hart did not consult Miller and does not remember whether he con-
sulted Rowan. Fink testified that he was "not too familiar" with the
details of the make-up of the respondent's seniority list, saying, "I
leave that to our superintendent and foreman and the committee from
the DeKalb Iron Workers Association to handle."
In an attempt to contradict Miller's story that he made repeated
telephone calls to and saw Rowan between February and June 1936,
the respondent called Rowan's daughter, Ruth Fisher, to the witness
stand. She testified that during that entire period her father had
been ailing, and that she constantly ministered to his needs, and was
near him at all times, and that on occasions, when her father was
visited by persons and received them on the porch of their home, she
took the liberty to see "who was there." At such times, she testified,
either the door was open, so as to enable her to see, or, if she was
unable to see, her father thereafter related with whom he had spoken
and what had been said. Fisher testified that her father never men-
tioned Miller to her and that "so far as I know," Miller did not tele-
phone or see him. She testified, also, that Rowan had requested
Miller to return to work in 1936 but that Miller had not done so.
Later in her testimony she was less certain of her uninterrupted
presence at her father's side, and admitted that on occasion she left
him to go to a movie or elsewhere. We believe Miller's testimony
regarding the telephone calls and visits.
We are not convinced by Hart's testimony. In view of the re-
spondent's anti-union attitude and activity, Fink's anti-C. I. 0.
statements in particular, the respondent's desire to rid itself of the
C. I. 0., and the fact that Miller was vice president of the Amalgam-
ated, we believe and find that Hart made the correction to give
color to the respondent's alleged reasons for the lay-off of Miller.
We find that Arthur Miller was laid off on November 12, 1937, be-
cause of his union activities and not because his seniority standing
required it. By laying off Miller the respondent discriminated in
regard to his hire and tenure of employment, discouraged membership
in the Amalgamated, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
Miller's average earnings while working for the respondent were
between $30 and $32 a week. Miller has not worked since he was
laid off. He desires reinstatement to his job with the respondent.
AUBURN FOUNDRY, INC. 901
(3) Wayne Nichols
Nichols, chairman of the bargaining committee of the Amalgam-
ated, was first employed by the respondent' in 1923 and, except for
several periods, worked as a molder until March 1936. In March
1936 Nichols was laid off, and, subsequently, upon being reemployed,
became ill.
On November 23, 1937, after recovering from his illness, Nichols
reported back to work, and was told that his seniority rating did not
as yet permit his reemployment. Nichols indicated to the respondent
his willingness to do any type of work that other molders were willing
to do. Nichols claims that at this time two men, with less seniority
than he, had been reemployed by the respondent. The testimony of
Nichols and other witnesses indicates that these two men were doing
work other than that formerly performed by Nichols.
The evidence is not sufficient to sustain the allegations in the com-
plaint that the refusal to reemploy Nichols on November 23, 1937,
was discriminatory. There is no proof that individuals with less
seniority than Nichols has were doing work for the respondent of the
kind Nichols had been doing. We find that by refusing to reemploy
Nichols the respondent did not discriminate in regard to his hire or
tenure of employment. The complaint as to Nichols will, accordingly,
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
We find that the activities set forth in Section III, above, occurring
in connection with the operations of respondent described in Section
I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE, REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act. We shall order the respondent to cease
and desist from engaging in such unfair labor practices and to take
certain affirmative action which we deem to be remedial of their effect.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed financial and other support to it, and is now dominating
and interfering with it, and contributing financial and other support
to it, and that the Association cannot serve the employees as their
genuine representative for the purposes of collective bargaining. In
323429-42-vol. 26-58 -
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to insure to the respondent's' employees the rights guaranteed
them in Section 7 of the Act, we-shall order the respondent to with-
draw recognition from and disestablish the Association as such repre-
sentative.
We shall also order the respondent to cease giving effect to the
contract between it and the Association or to' any modification,
extension, or renewal thereof, or to any successor contract with the
Association.
We have found that the respondent discriminatorily discharged
Robert Livergood and discriminatorily laid off Arthur Miller. We
shall order the respondent to offer Livergood and Miller immediate
and full reinstatement to the positions which they formerly held with
the respondent, the former, on and before August 21, 1937, and the
latter, on and before November 22, 1937. In addition, we shall
order the respondent to make Livergood and Miller whole for any loss
of pay they may have suffered by reason of the respondent's dis-
criminatory conduct by payment to each of them of a sum equal to
the amount which he normally would have earned as wages from the
date of the discharge, or lay-off, to the dite of the offer of reinstate-
ment, less his net earnings 32 during said period.
VT. THE PETITION
In view of the time which has elapsed since the filing of the petition,
we will dismiss the petition without prejudice
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Lodge 1998 of Amalgamated Association of Iron, Steel and
Tin Workers of North America, and DeKalb Iron Workers Association,
Inc., are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of the DeKalb Iron Workers Association,
Inc , and by contributing support to said organization, has engaged
in' and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Robert, Livergood and Arthur Miller, and
32 By not earnings" is meant earnmgs less expenses , such as for transportation , room , and board , incurred
by an employee in connection with obtaining work and working elsewhere than for the respondent, which
would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking
employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers, Local No 2590, 8 N L R B 440 Monies received
for work performed upon Federal; State, county, municipal, or other work-relief projects, are not considered
as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the
amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for said work-relief projects.
AUBURN - FOUNDRY, INC. 903
thereby discouraging membership in Lodge 1998 of Amalgamated
Association of Iron, Steel and Tin Workers of North America, has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act. ,
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
5. The aforesaid labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent, by refusing to reemploy Wayne Nichols on
November 22, 1937, did not discriminate against him in regard to hire
and tenure of employment, within the meaning of Section 8 (3) of
the Act.
ORDER
Upon the basis of the above,findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Auburn Foundry, Inc., and its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Dominating or interfering with the, administration of DeKalb
Iron Workers Association, Inc., or the formation or administration of
any other labor organization of its'employees, or contributing support
to DeKalb Iron Workers Association, Inc., or any other labor 'or-
ganization of its employees;
(b) Giving effect to its contract dated September 2, 1937, 'with
DeKalb Iron Workers Association, Inc., or to any modification,
extension, or renewal thereof, or. to any successor contract with said
Association; '
(c) In any manner 'discouraging membership in Lodge 1998 of
Amalgamated Association of Iron, Steel and Tin Workers of North
America, or any other labor organization of its employees, by dis-
charging, laying off, or refusing to reinstate any of its employees, or
in any other manner discriminating in regard to hire or tenure of
employment or any other term or condition of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the'right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or mutual aid and
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Withdraw all recognition from DeKalb Iron Workers Associ-
ation, Inc., as representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work,
and completely disestablish DeKalb Iron Workers Association, Inc.,
as such representative;
(b) Offer Robert Livergood and Arthur Miller immediate and full
reinstatement to the positions which they formerly occupied at the
respondent's plants on and before August 21, 1937, and on and before
November 22, 1937, respectively, or to substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges;
(c) Make whole Robert Livergood and Arthur Miller for any loss of
pay they have suffered by reason of the respondent's discrimination
in regard to their hire or tenure of employment, by payment to each
of them of a sum of money equal to that which each normally would
have earned as wages from the date of the respondent's discrimination
against him, to the date of the respondent's offer of reinstatment,
less his net earnings during such period; deducting, however, from the
amount otherwise due to each of the said employees, monies received
by each of said employees during said period for work performed
upon Federal, State, county, municipal, or other work-relief projects,
and pay over the amounts so deducted to the appropriate fiscal
agency of the government financing such work-relief projects;
(d) Post immediately in conspicuous places throughout its plant at
Auburn, Indiana, and its plant at Columbia City, Indiana, if the
respondent is still operating said Columbia City plant, and maintain
for a period of at least sixty (60) consecutive days from the date of
posting, notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a), (b), (c), and (d), of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a), (b), and (c) of this Order; (3) that the respondent's employees
are free to become or remain members of Lodge 1998 of Amalgamated
Association of Iron, Steel and Tin Workers of North America, through
the Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, and the respondent will not discriminate
against any employee because of membership or activity in that
organization;
(e) Notify the Regional Director for the Thirteenth Region, in
writing, within ten (10) days from, the date of this Order what steps
the respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent (1) has discriminated in regard to hire and
tenure of employment of Wayne Nichols, and (2) refused to bargain
AUBURN FOUNDRY, INC. 905
with Lodge 1998 of Amalgamated Association of Iron, Steel and Tin
Workers of North America, be, and it hereby is, dismissed.
AND IT IS FURTHER ORDERED that the petition for investigation
and certification of representatives be, and it hereby is, dismissed
without prejudice.
MR.' WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.
26 N.L.R. B. No. 93a.