Columbian Enameling & Stamping Co.

National Labor Relations Board - Board Decisions

Feb 14, 1936

1 N.L.R.B. 181 (N.L.R.B. 1936)

In the Matter of COLUMBIAN ENAMELING & STAMPING COMPANY and
ENAMELING & STAMPING MILL EMPLOYEES UNION, No. 19694
Case No. C-14.-Decided February 14, 1936
Stamping and Enameling Industry-Interference, Restraint or Coercion:
circularizing employees on subjects of bargaining between employer and union
representatives ; soliciting individual strikers to cease striking-Strtke-Mar-
tial Law-Employee Status: during strike-Representatives : proof of choice:
membership in union-Unit Appropriate for Collective Bargaining : production
employees-Collective Bargaining : employer 's duty as affected by strike ; refusal
to meet representatives ; refusal to recognize representatives-Rein.statenment
Ordered, Strikers: discrimination in reinstatement ; displacement of employees
hired during strike.
Mr. Melvin C. Smith for the Board.
Mr. Otto A. Jaburek, of Chicago, Ill., and Mr. Josiah T. Walker,
Mr. Louis R. Hilleary, and Mr. Wilson N. Cox, of Terre Haute, Ind.,
for respondent.
Mr. Maurice J. Nicoson, for the Union.
Mr. Louis L. Jaffe, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 31, 1935, Enameling & Stamping Mill Employees Union
No. 19694, hereinafter referred to as the union, filed with the Regional
Director for the Eleventh Region a charge that the Columbian
Enameling & Stamping Company had engaged in and was engaging
in unfair labor practices forbidden by the National Labor Relations
Act. On November 21, 1935 the Board issued a complaint against
the Columbian Enameling & Stamping Company, hereinafter re-
ferred to as the respondent, said complaint being signed by the
Regional Director for the Eleventh Region and- alleging that the
respondent had committed unfair labor practices afFecting commerce
within the meaning of Section 8, subdivisions (1) and (5) and Sec-
tion 2, subdivisions (6) and (7) of the National Labor Relations Act.
In respect to the unfair labor practices the complainant alleged in
substance :
1. All the departments at the Terre Haute Plant of the respond-
ent with the exception of the office and clerical departments consti-
181
182 NATIONAL LABOR RELATIONS BOARD
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of said Act.
2. On or before March 22, 1935, and at all times thereafter men-
tioned herein, a majority of the employees in said unit had desig-
nated the union as their representative for the purposes of collective
bargaining with the respondent, such designation having been made
by becoming members of the union and appointing a committee of
union members to bargain with the respondent. At all times since
March 22, 1935, said union has been the representative for collective
bargaining of a majority of the employees in said unit and has by
virtue of Section 9 (a) of said Act, been the exclusive representative
of all employees in such unit for the purpose of collective bargaining
in respect to rates of pay, wages, hours of employment, or other
conditions of employment.
3. On July 22, September 20, and October 11, 1935, while the
respondent was engaged at the Terre Haute Plant as described above,
the union requested the respondent, through its officers, agents and
employees to bargain collectively in respect to rates of pay, wages,
hours of employment, and other conditions of employment, with
the union as the representative of the employees who are members
of the union and as the exclusive representative of all the employees
in said unit. On said dates and at all times thereafter the respond-
ent did refuse and has refused to bargain collectively with the union
as the representative of the employees who are members of the
union or as the exclusive representative of all the employees in said
unit, in that it refused to meet, for the purpose of collective bar-
gaining or any other purpose, with the committee of the union
designated by the union to engage in collective bargaining.
4. On or about March 22, 1935, the union duly voted to call a strike
of. the employees in the Terre Haute Plant of the respondent and
since that date and at all times thereafter mentioned herein the em-
ployees who are members of the union and other employees have
been on strike. The union has not since March 22, 1935, or at any
time thereafter, voted to cease such strike or to return to employment
at the Terre Haute Plant. On many occasions since July 5, 1935, the
respondent through"its officers and agents has solicited individual
employees who are members of the union to return to employment,
has threatened such employees with permanent discharge if they did
not so return to employment immediately, and has informed such
employees that there would never henceforth be a union at the
Terre Haute Plant and has attempted to induce and has induced
many of such employees to return to employment at the Terre Haute
Plant, while at the same time refusing to bargain collectively with
the union as set forth hereinabove.
DECISIONS AND ORDERS 183
The complaint and accompanying Notice of Hearing were served
on the respondent in accordance with National Labor Relations
Board Rules and Regulations-Series 1, Article V.
On December 2, 1935, the respondent filed an answer alleging in
substance as follows :
1. That the National Labor Relations Act violates the Fifth
Amendment to the Constitution of the United States and is accord-'
ingly unconstitutional.
2. That the respondent is not engaged in interstate commerce and
that its operations do not constitute a continuous flow of trade or
commerce and, as applied to it, the National Labor Relations Act
is unconstitutional and void.
3. That the allegations do not constitute charges of unfair labor
practices.
4. That in July and August of 1935, the respondent afforded all
striking employees an opportunity to return to its employment with-
out discrimination and a large number did so return.
5. That the respondent on July 14, 1934, entered into a contract
with the union, one of the provisions of which was for arbitration
of disputes and disagreements; that at various times the union made
demands contrary to the provisions of the agreement; that such a
demand]was the demand for a closed shop; that according to the
aforesaid agreement, the union demanded arbitration of these dis-
putes though they did not in fact or law arise thereunder; that the
union spread misinformation as to respondent's position in respect
to arbitration and to the effect that respondent was violating the
agreement; that the union instituted a strike against the respondent
because it would not accede to the closed shop; that the union
engaged in acts of violence against respondent's property; that on
July 19, 1935 respondent began preparations for re-opening its plant
and that the union thereupon interfered with employees engaged in
so re-opening the plant; that sometime after July 23, 1935 the
respondent filled all available positions in its plant; that thereupon
the strike against respondent ceased to exist.
6. That the aforesaid strike was an unlawful strike for an unlaw-
ful purpose and in violation of the aforesaid agreement; that those
employees who joined in said strike ceased to be employees of
respondent; that none of those who reentered respondent's employ-
ment have made any request upon respondent that it bargain collec-
tively.
7. That those persons who sought on September 20,.1935 and Oc-
tober 11, 1935 to bargain collectively as employees with respondent
were not employees of respondent and sought to end a controversy
which had ceased to exist.
97571-36-vol t-13
184 NATIONAL LABOR RELATIONS BOARD
Commencing on December 9, 1935 a hearing was held at Terre
Haute, Indiana, by Daniel M. Lyons sitting as Trial Examiner, and
testimony was taken . Full opportunity to be heard , to examine and
cross-examine witnesses and to introduce evidence bearing upon the
issues was afforded to both parties . The respondent moved to dis-
miss the complaint on the ground that the Act is unconstitutional in
that "it is violative of the Commerce Clause of the Constitution;
second, that it is violative of the Fifth Amendment to the Constitu-
tion; and thirdly, that it failed to state a cause of, action." The
motion was denied by the Trial Examiner and an exception was
thereupon taken. The motion was renewed at the conclusion of
the hearing and again denied. Objection was taken to the introduc-
tion into evidence of the union 's charge and overruled.
On December 16, 1935 the Board, acting pursuant to Section 35,
Article II of said Rules and Regulations-Series 1, directed that the
proceeding be transferred to and continued before it.
FINDINGS OF FACT
Upon the record in the case , the stenographic transcript of the
hearing, and all the evidence including oral testimony , documents
and other evidence offered and received at the hearing , the following
findings of fact are made.
I. COLUMBIAN ENAMELING AND STAMPING CO.
The Columbian Enameling and Stamping Company is an Indiana
Corporation engaged in the manufacture and sale of metal utensils
coated with enamel, zinc , tin or other substances for kitchen, hospital,
and laboratory use. It manufactures also wall tile and roof shingles,
both enamelware products.
The respondent manufactures its products at its plant in Terre
Haute, Indiana. It is one of 19 active competitors in the industry.
It employs on the average 600 persons . During the period in
question there were approximately 600 employees ; excluding foremen
and clerical workers, a few more than 500. Between the dates
of January 1, 1935, and December 9, 1935 the respondent shipped
4,549,695 pounds of its product to 47 states , the District of Columbia
and Canada , 85% of its product being shipped outside of Indiana.
The plant was closed down from March 23, to July 23, 1935, and its
shipments were considerably less than in the prior years, 1933 and
1934. Thus in 1933 it shipped out 302 carloads of its product, in 1934,
385, and the first 11 months of 1935 only 215.
Exclusive of the coal used in the manufacture of its product, and
cartons used in shipping the product, a majority of its raw mate-
rials are shipped from points outside of Indiana , in all from 20
DECISIONS AND ORDERS 185
states; including these a majority of the inbound shipments are
transported from Indiana . Some of the materials originate in
Greenland and China . The principal materials are sheet steel which
serves as the body of the utensil , and chemicals , sand, and clay from
which the enamel coating is prepared . Between the dates of January
1, 1935 and December 9, 1935 it shipped into its plant 22,713,000
pounds of various materials. During the years 1933 and 1934 in-
bound materials averaged 500 carloads ; in the first 11 months of
1935 there were approximately 286 carloads.
In its shipping operations the respondent uses the services of
three interstate railroads and eight interstate truckers . It has sales
offices in New York, New York; Chicago , Illinois and Los Angeles,
California . It advertises in national trade journals . It has regis-
tered with the United States Patent Office a number of trade marks.
for use in interstate commerce.
The operations of the respondent constitute a continuous flow of
trade traffic , and commerce among the several states.
If. RELATIONS BETWEEN THE UNION AND THE RESPONDENT
1. The agreement of Jwne 14, 1934
Federal Labor Union No. 19694, was formed on June 14, 1934 for
the purpose of creating an agency for collective bargaining between
the respondent and its employees , and is a labor organization
affiliated with the American Federation of Labor. Membership was
limited to the production workers in the plant, that is: all employees
exclusive of clerical and supervisory workers. In September 1934
some 450 of the 500 odd production workers were union members;
in March 1935 membership reached 485.
On July 5, 1934 the union presented an agreement to the respond-
ent. The respondent refused to sign the agreement . The union voted
to strike . The union asked the Indianapolis . Regional Labor Board,
then functioning under the National Industrial Recovery Act, to
intervene . Upon the request of the Regional Labor Board, repre-
sentatives of the union and of the respondent met together with Dr.
Beckner, Chairman of the Regional Board. The union's proposed
agreement was discussed point by point . Upon the basis of the dis-
cussion Dr. Beckner forthwith drafted an agreement which on the
same day was signed on behalf of the union , the respondent , and the
Regional Board. On the following Monday, (July 16, 1934) the
employees did not present themselves for work. The next day plant
operation was resumed . The agreement provided for seniority, rest
periods, "spreading the work ", hearing upon dismissal by a committee
of employees and management , a minimum of 2 hours pay for any
employee required to report for duty, an eight hour day when pos-
186 NATIONAL LABOR RELATIONS BOARD
sible, and a grievance committee. It provided also that "in any
case in which a satisfactory settlement of a dispute arising under
this contract cannot be reached", such dispute shall be referred to a
committee of arbitration "to be composed of 2 management and 2
union representatives, and a fifth person to be selected by these four".
The contract was to run for one year. There was a provision that
either party desiring to terminate or modify the agreement shall give
30 days' notice in advance of termination.
2. The check-off issue
Acting under its Constitution the union appointed a Scale
Committee to deal with the management. On August 8, 1934 the
Scale Committee requested the respondent to institute the check-off
system on behalf of the union, i. e., the respondent to deduct union
dues from the pay of members and remit to the union. On
August 30, 1935 Mr. Grabbe, General Manager of the respondent,
informed the Committee that a statute of Indiana (2, Burns Indiana
Statutes, 1933, Sections 40-201, 202, 203 and 204) prohibited the
assignment of wages beyond thirty days, and that to institute the
check-off consistently with this statute, each employee member would
have to sign a pay deduction form every fifteen days. Mr. Grabbe
further informed the Committee that the union would have to pay
the administrative expenses involved. At a meeting on Sep-
tember 5, 1934, the Scale Committee expressed itself as willing to
pay these expenses, but wanted only a single authorization by each
employee to cover the period of the Indianapolis agreement. On
September 18, 1935 Mr. Grabbe told Mr. Cox, a member of the
Committee, that the respondent could not accede to this request.
On October 4, 1935 the respondent sent a circular to all of its em-
ployees stating that the check-off system as requested by the Scale
Committee was illegal and that the company would not knowingly
violate a statute. At a meeting in the middle of October, the Com-
mittee pointed out that for ten years the company had been checking
off premiums for incurance policies without any pay deduction
authorizations.
3. The closed shop issue
On October 1, 1934 the union informed the respondent by letter
that all members of the union should be in good financial standing
"under penalty of disassociation". On October 4, 1934 the re-
spondent replied by letter asking whether the union intended by its
letter of October 1, 1934 to terminate the Indianapolis agreement
and whether it meant to say that its members would refuse to work
with members who were delinquent in their dues. On October
DECISIONS AND ORDERS 187
22, 1934 the union informed the respondent by letter that its letter
of October 1, 1934 meant that a delinquent member would lose
his "association" rights. On October 23, 1934 the union requested
that the agreement be modified (in what respect was not
stated), the letter to serve as 30 day notice of modification pur-
suant to the Indianapolis agreement. On October 30, 1934 the
respondent replied by letter that it would meet the association on
November 23, 1934 to discuss the modification. The meeting
was postponed to November 26, 1934 at the request of T. N. Taylor,
president of the State Federation of Labor, and an organizer for the
American Federation of Labor. On that date Mr. Taylor and the
Scale Committee, on behalf of the union, met with the respondent's
officers. Mr. Taylor stated that the union "would like to have" a
closed shop. Mr. Grabbe replied that the respondent could not
grant a closed shop ; that the closed shop was contrary to the prin-
ciples under which the company had operated since 1871. Mr. Taylor
indicated that the respondent might "forget the matter".
On January 4, 1935 the Scale Committee presented a number of
demands, among them a demand that the company agree to
lay off any member of the union who becomes suspended. On Jan-
uary 21, 1935, by a circular letter to all of its employees, the
respondent replied that it would not agree to the aforementioned
demand; that suspension is a matter of union business and is not
company business; that the union had previously asked for a closed
shop and the company had denied it as contrary to the principle of
equal opportunity. On February 5, 1935 the union, by letter
to the respondent, asked that the proposals of January 4, 1935 be
taken to arbitration pursuant to the Indianapolis agreement.
4. Other issues
At a number of meetings between the respondent and the Scale
Committee, the issues of wage increases on one hand, and unrest and
waste allegedly caused by union, activity on the other, came up, some-
times separately, sometimes as connected subjects. At the meeting
of November 26, 1934 Mr. Taylor asked for a *20% increase.
Mr. Grabbe replied that the competitive situation made it impos-
sible, and he testified that he took occasion to " complain bitterly "
that the unrest caused in the factory had increased spoilage; due to
this cause, he said, it was $1,500 over normal in July, 1934 and $5,000
over normal by October, 1934. He attributed the unrest to
intimidation, coercion and solicitation for dues. In previous meet-
ings he had admonished the union against activity in the plant dur-
ing working hours. In its proposals of January 4, 1935, already men-
tioned, the union pledged its aid in the promotion of effi-
188 NATIONAL LABOR RELATIONS BOARD
ciency and demanded that if at the end of ninety days the present
unrest had been eliminated and the production loss had been re-
duced to a normal minimum, the minimum wage rate for females
would be forty cents, for males, forty-five cents, which would ap-
parently have meant a raise. In its circular reply to the proposals
of January 4th the respondent replied that the competitive
situation made an increase impossible. This, too, was one of the
proposals upon which the union asked for arbitration by its letter
of February 5th.
At meetings on February 7, 1935 and March 5, 1935 the Committee
claimed that certain employees were entitled to two hours pay on a
day when they had been called to work but not employed, because the
power plant had broken down. At both meetings officers of the
respondent, in reply, referred to the negotiations in connection with
the Indianapolis agreement at which the clause providing for pay
during a wait caused by breakdown had been eliminated from the
agreement.'
5. The sending of circulars to all employees
Beginning on October 4, 1934 the respondent sent occasional cir-
cular letters to all its employees discussing union proposals. To
justify this unusual procedure Mr. Grabbe, testifying at the hear-
ing, stated that many employees had told him that they could get
no information from the Scale Committee as to what was going on
and asked that they be sent letters or that bulletins be posted.
In this circular it was said in substance :
"A feeling of unrest is not conducive to good work. To those
of you who are not quite sure in your minds regarding the
company's attitude on matters recently discussed in the factory,
I have the following to say, namely : that the company was im-
partial as between employees belonging and those not belonging
to an organization and that the check-off as proposed by the
union was illegal."
At the meeting of January 4, 1935, at which the proposals of that
date were presented, Mr. Grabbe criticized the Committee for not
keeping the membership fully informed.
I Though it is unnecessary for us to decide this question , as such , it should be pointed
out that the provision eliminated set no limit on hours of pay in case of breakdown
This clause was as follows : "No piece workers shall be penalized while waiting for
material , break -down of machinery or any other condition not controlled by the
employee".
The clause adopted provides that any employee required to report shall receive a
minimum of 2 hours ' pay There is a real question whether this is not applicable
regardless of the cause of failure of work This was not one of the questions on which,
specifically at least , arbitration was requested
DECISIONS AND ORDERS 189
On January 21, 1935 the respondent sent out the circular letter
already referred to in which it answered point by point the
union's proposals of January 4, 1935. This circular stated that each
employee was being given a copy so that he might be informed of
the union's request and of the reply made to the Scale Committee.
It does not appear, however, that any reply was made to the Scale
Committee as such. At the meeting of February 7, 1935 the re-
spondent did discuss the proposals, apparently for the purpose of
showing that they were not disputes arising under the agreement and
so not arbitrable. The question arose in this form because, as
set forth above, in a letter sent on February 5, 1935 to the respondent,
the union had demanded arbitration of its proposals of January
4, 1935. On February 8, 1935 the respondent sent a letter to the
union and a circular letter to all its employees stating that the
proposals of January 4 dealt with matters not covered by the
Indianapolis agreement, were not disputes under it, and were not
arbitrable under it. The circular letter concluded :
"Our Corporation lawyers advise us that the Scale Committee
is acting against the contract when they request that the pro-
posal be submitted to arbitration-under the contract their
proposal cannot be taken to arbitration."
On February 9, 1935 the union addressed the respondent by letter
as follows :
"It was moved unanimously . . . that the company deal di-
rectly with the scale committee . . . in matters concerning said
union and not individually through the mail. As the union has
a personnel of 476 we know exactly what is taking place. We
do not want the information given to foremen and non-members.
This is only to comply with Section 7 A (Collective bargaining)
of the National Recovery Act . .
"If this action is taken again this body will consider such
action as discrimination and deal with it as such regardless."
On February 19, 1935 the respondent replied by letter to the union
and a circular letter to its employees. The respondent stated
that misunderstanding often causes "deserving, efficient and loyal
employees of a company to lose their jobs through agitation and
strikes which they do not instigate" and which arise from indi-
vidual misinformation; that all employees were entitled to be
advised on developments of labor policy in the plant; that, in the
words of the President of the United States, employees were to be
free from coercion "from any source" and this meant free from
agitators who tried to coerce unorganized workers to join some par-
ticular organization; that the Scale Committee "during the past
190 NATIONAL LABOR RELATIONS BOARD 0
few months seems to have made up its mind that it wants to manage
not only the company, but all the employees working for it;" that
all the disturbance boils down to the basic issue of more pay but that
competitive conditions made that impossible.
At a meeting between the Scale Committee and the respondent on
March 5, 1935 the Committee protested against the use of circu-
lars. After discussion Mr. Grabbe, for the respondent, agreed to
read to the Committee any circulars to be sent and allow the Com-
mittee to state objections and make changes accordingly where possi-
ble. The Committee felt that in one of the circulars the words "scale
committee" had been used with slurring intention. The respondent
agreed to post a letter correcting this impression ; this was done.
III. THE STRIKE AND THE ATTEMPT TO SETTLE IT
1. The strike
On March 11, 1935 the Scale Committee and Mr. Taylor met with
the respondent. Mr. Taylor wished to discuss the proposals of
January 4, 1935, some of which have already been considered
above. These proposals and the answers given by the respondent,
under the signature of Werner Grabbe, General Manager, in its cir-
cular letter of January 21, 1935 were in substance as follows : Pro-
posal 1. The union agrees to cooperate with the company in mutual
aid' for efficiency. Answer : "We, who are the employees of the
company", are obligated to work for the company with each other.
None of us is required to join any organization. Proposal 2. The
foreman is to report anyone lax in his duty to the Committee which
will investigate and assist in correcting the condition. Answer :
Cannot agree; company must have full control in this matter. Pro-
posal 3. Company shall post a notice that the union represents a
majority and is the bargaining committee for all employees of the
plant. Answer : Cannot agree ; any group of employees free to dis-
cuss problems with the management. Proposal 4. Employees shall
correct certain bad work but with specified exceptions. Answer :
This represents the present practice. Proposal 5. Committees shall
not discuss grievances during working hours unless called on
by foreman. Answer : This represents the present practice. Pro-
posal 6. Committee agrees to cooperate with company in enforcing all
shop rules agreed to by both. Answer : Making and enforcing of
company rules is management's responsibility. Proposal 7. The
company agrees to lay off any member of the union who becomes
suspended. Answer : Cannot agree. Proposal 8. If at end of 90
days, present unrest has been eliminated and production loss reduced
to normal minimum, company agrees to certain minimum wages.
Answer : Cannot agree.
DECISIONS AND ORDERS 191
As noted above, the union, after the respondent's answer to these
proposals , had asked for arbitration of them under the Indianapolis
agreement and the respondent had replied that they were not arbitra-
ble thereunder . Once before in November, 1934 the respondent had
taken the same position with respect to the arbitration of a proposed
wage increase . At the meeting of March 11th the respondent an-
nounced that it had given its final answer to the January 4th
proposals , and again explained its reasons.
On March 17, 1935 the union sent the respondent a copy of reso-
lutions adopted by it. The resolutions recited breaches of the
Indianapolis agreement by the respondent in that ( a) it had failed
to live up to the provision for two hours ' minimum pay 2 and (b)
it had failed to arbitrate in accordance therewith . They accused the
respondent of "violating every principle of collective bargaining";
of seeking to damage the union by questioning the loyalty, honesty
and intelligence of the Committee and insinuating that its organizer
was an agitator ( referring to the circular of February 19, 1935).
(See supra heading: Circulars , etc.) The resolutions conclude that
in the interests of peace and harmony, the members will not continue
to work with anyone eligible for union membership who does not
become a member on or before March 23, 1935.
On March 23, 1935 the strike was called. Of the union members,
approximately 450 walked out on this day; the union permitted
35 men in the power house to remain at work. On March 30,
1935 the respondent announced that the factory was closed indefinitely.
2. Attempts to settle strike
On March 23 , 1935 a conciliator from the Department of Labor, one
Mythen, undertook to settle the strike . According to the testimony
of Mr. Grabbe , for the respondent , Mythen stated that all that the
union wanted was a closed shop, and that that was not an unreason-
able demand . The respondent rejected the proposal and Mythen
gave up his attempt.
On or before May 10, 1935 the Mayor of Terre Haute requested
the respondent to meet with him and union representatives. The
respondent declined. In its letter to the Mayor it pointed out
that the union demanded a closed shop ; that it could not accede
and a meeting would be useless . It concluded : "If the union calls
off the strike, the factory will be reopened promptly without discrim-
ination or reduction in wages, but only as an open shop without
union recognition or agreement ". ( Italics added.)
On June 7, 1935 the respondent placed in three Terre Haute news-
papers an advertisement , reciting that the strike had been called
2 See footnote No 1, supra
192 NATIONAL LABOR RELATIONS BOARD
to force the company to discharge nonunion employees. The
advertisement then stated : "The company is willing to operate
its plant, using former employees, without discrimination against
union members and without change in wages, but only as an open
shop without union recognition or agreement. The above are the
conditions under which the company has operated for 33 years to
the general satisfaction of the employees. If the plant cannot be
operated under these conditions, it will be closed indefinitely."
(Italics added.)
On the same day (June 7, 1935) three members of the Scale Com-
mittee requested by letter a meeting with the respondent. It stated
that, "Our membership is convinced that no controversy is so great
that cannot be settled across the conference table".
On June 11, 1935 three members of the Scale Committee met Mr.
Gorby, Mr. Gorby, Junior, and Mr. Grabbe, officers of the respondent,
at a Terre Haute hotel. Grabbe reiterated the stand taken in the
company's advertisement of June 7th. The men could come back but
without recognition of the union and without any agreement and
that if they didn't want their jobs back, he would get somebody else.
There was no expressed difference of opinion as to wages and work-
ing conditions. The issue of closed shop was discussed, though Mr.
Gorby, the president of the respondent, could not remember who
brought it up. According to the testimony of Grabbe, the Committee
stated at the conclusion, "that they would come back to work but
only under their own conditions . . . and that they would report
the conversation to the body and report back to us the action of
the body".
From the beginning of the strike the union had picketed the plant.
On July 19, 1935 forty company men were escorted into ',he plant
by four police cars. The police pointed guns at the pickets while
the trucks bearing the men went into the grounds. Thereupon
enormous crowds gathered outside of the plant. On July 22,
1935 the Central Labor Union called a general strike of all labor
in the city of Terre Haute. It appears from a statement terminating
the general strike inserted on July 23, 1935 in the Terre Haute Star
(introduced by the respondent) that the strike was called in
protest against the use of city police and the militia. During the
evening of July 22 there was a crowd outside the plant estimated at
15,000 persons, among them some 200 to 300 strikers. "Missiles"
were thrown at the plant. At 11: 15 P. M., 750 militia were marched
into the plant and martial law was proclaimed. Picketing was
forbidden and not resumed until August 4, 1935.
On July 23, 1935 two labor conciliators from the Department of
Labor, Richardson and Scheck, appeared in Terre Haute. The
union requested them "to try and open up negotiations with the
DECISIONS AND ORDERS 193
respondent".3 On the same, or the next day these two men met with
Mr. Gorby, president of the respondent. They conferred for three
hours. Mr. Gorby was requested to meet the Scale Committee, and
agreed. The conciliators reported this to the union. Several days
later Mr. Gorby told the conciliators he would not have a meeting
with them or the Scale Committee. -
On July 23, 1935 the respondent resumed operations at its plant.
Between that date and August 19, 1934 it had received 3,000 ap-
plications for employment. Mr. Grabbe, general manager of the
respondent, estimated that on or about August 19, 1934, 190 of the
production employees of March 23rd (the day of the strike) had
returned. By the second week in September 1934 the respondent
had employed a full force.
As early as May 20 company foremen approached individual work-
ers and sought to induce them to return to the employ of the
respondent. They were more active in July, both before and
after the opening of the plant. One foreman solicited as many
as 100 men; another saw many but did not know how many. One
soliciting foreman had been reemployed in June. After July 23rd
a number of those foremen were in the employ of the company.
Under these circumstances, testimony of the foremen that they were
not instructed by the respondent to solicit seems entitled to little
or no weight. One worker was told by a foreman that there would
be no union in the plant; this was not denied. Another was told
substantially the same thing; this was not effectively denied.
On September 20, 1935, and again on October 11, 1935, the union
wrote to the respondent asking for a meeting to settle the controversy
between them, both of which the respondent received, but to neither of
which it replied. In the latter part of October, 1935, the union asked
Max Schaefer, vice president of the Central Labor Union of Terre
Haute, to contact the respondent 4 and on October 28, 1935 he met
Mr. Gorby, represented that he had come on behalf of the union, and
sought to work out an arrangement whereby the striking employees
could be returned to work. He suggested that new men taken on since
8 The respondent objected to this testimony on the ground that the conversation between
the union and the conciliators does not "bind" the respondent, and again on the
ground that it does not appear that the conciliators told Mr Gorby that the union had
made a request for the meeting. Mr Gorby testified that the conciliators asked him
to meet with the Scale Committee and that lie knew the purpose of the requested meet-
ing Since it appears that the conciliators were entrusted by the union with a mission,
duly met with the respondent in pursuance thereof, and reported back to the union as to
the result, it is a proper inference that Mr. Gorby knew of their trust Consequently the
evidence of the witnesses Cox and Heuer to which objection was taken is properly part
of the record
4 The respondent objected to this testimony on the ground that it does not anywhere
appear that Schaefer told Gorby that he (Schaefer) had been authorized by the union to
seek a meeting. Gorby admitted that Schaefer had stated that he came "on behalf of the
union."
194 NATIONAL LABOR RELATIONS BOARD
July 23rd be discharged to make place for the strikers. Mr. Gorby
stated that he could not agree to that proposal, but that any strikers
might sign an application for employment and would be employed
when needed.
IV. THE UNFAIR LABOR PRACTICES
The complaint alleges and the answer denies that on July 22,
September 30, and October 11, 1935, the respondent refused to bargain
with the representatives of its employees.
It is unquestioned that on July 23, 1935, the respondent informed
the labor conciliators, Scheck and Richardson, that it would meet
with the Scale Committee and that a few days later the respondent
advised the conciliators that it would not meet either the conciliators
or the Scale Committee. It seems clear that Mr. Gorby, president
of the respondent, knew that the union was seeking through the
conciliators to bargain with the respondent with respect to the
settlement of the strike. The union represented an overwhelming
majority of the employees in March; practically all had struck and
were still on strike. The respondent admits (Brief p. 9) that the
membership of the union has not been reduced. On July 23rd the
respondent had opened its plant but did not have its full quota of
employees until nearly two months later. It would seem clear, there-
fore, that at this time the union represented a majority of the re-
spondent's employees, that it sought to bargain with the respondent,
that the respondent refused to so bargain, and that this constituted
an unfair labor practice within the meaning of Section 8, subdivision
(5) of the Act.
To this conclusion the respondent opposes two objections. First:
The men on strike were not employees on July 23rd. Second: The
Union was attempting to force a closed shop upon the respondent.
Section 2 (3) of the Act provides that the term "employee" shall
include "any individual whose work has ceased as a consequence of,
or in connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other regular
and substantially equivalent employment."
The respondent maintains that the strike was in violation of
the Indianapolis agreement and so illegal ; an dtherefore the em-
ployees lost their status as such by striking. The agreement contains
no provision against a strike except when a dispute under the agree-
ment is being arbitrated, and the respondent has at all times main-
tained that the dispute was not arbitrable under the agreement.
Furthermore, the Union had many months before given 30 days
notice of termination in accordance with the agreement.
The respondent argues that the strike was illegal also for the
reason that it was for a closed shop. Under the law of Indiana,
DECISIONS AND ORDERS 195
however, it would seem that a strike for a closed shop (admitting
the strike to have been such) is considered a justifiable attempt to
advance the legitimate interests of the members of the Union and
is legal. Sliaughnessey v. Jordan, (1916) 184 Ind. 499, 111 N.E. 622.
Furthermore the Act makes no distinction based on the issue involved
in the labor dispute. An individual whose work has ceased in con-
nection with "any" current labor dispute continues to be an employee
for the purposes of the Act.
The labor dispute in question was "current" at the time when in
late July the strikers sought to exercise their rights under the Act.
The respondent defines "current" as "existing at the present time".
It is at the time when the individual seeks to assert his rights as an
employee that the dispute must be current. From March 23rd to
July 23rd the strike was actively prosecuted and was effective in
keeping the plant closed down. The strikers picketed the plant with-
out interruption. The Scale Committee on a number of occasions
pressed the union's claims. On July 23rd the president of the re-
spondent met and talked with the conciliators of the Department of
Labor and agreed to meet the Scale Committee. Apparently the
respondent was at that time aware that a labor dispute existed.
In Dail-Overland Company v. Willys-Overland, Inc., 265 Fed. 171,
cited by the respondent, the Court said (p. 188)
"As long as conditions are such that what is called `settlement'
might seem reasonably possible between the company and its
late workmen, the latter, it seems should be considered 'em-
ployes', within the meaning of that term in the Clayton Act".
These words are strictly applicable here. The Act seeks by its
remedies to promote industrial harmony. The Act recognizes that
the need for these remedies is no less acute after than before a strike,
and that the need continues until harmony is restored.
The respondent invokes the rule of statutory construction that
"laws are not to be considered as applying to cases which arose be-
fore their passage". Our decision does no violence to that rule.
The case in question is the refusal of the respondent to bargain col-
lectively in late July with its employees. The Dail-Overland case
(supra) cited by respondent is authority for the proposition that
an individual does not lose his employee status as long as a strike is
current. When Congress passed this Act the strikers had the status
of employees. We now hold that a refusal to bargain with such
employees after July 5, 1935, the date when the Act was approved,
is a violation.
The respondent points to the additional requirement of the defini-
tion in the Act to the effect that the individual be one who has not
obtained other employment and contends that it does not positively
196 NATIONAL LABOR RELATIONS BOARD
appear that any of the strikers were still unemployed. It is not neces-
sary that all of the strikers have remained unemployed; those, what-
ever number, still unemployed were entitled to bargain. There is
considerable evidence indicating that many were unemployed. Some
of respondent's witnesses solicited over 100 of them to return to the
plant, and one of respondent's officers testified that over 200 so re-
turned. Up until July 23rd large numbers of them picketed the plant.
When respondent sought to reopen its plant with non-union men, a
general strike of all labor in Terre Haute was called. Such a decisive
demonstration of sympathy would hardly have been made if the
strikers were all employed elsewhere. The many letters sent by the
Scale Committee to the respondent both before and after July 23rd,
the union's statement in the newspapers as late as August 28 that the
strike still continued, all evince an activity and desperate determi-
nation inconsistent with employment elsewhere.
We are now brought to the respondent's second contention that the
union was seeking to force the respondent to accept a closed shop.
This in itself seems irresponsive to the issues but it is probable that
the respondent seeks to argue thereby that the union was adamant
in its demand for a closed shop; that negotiation was therefore futile;
that the possibilities of collective bargaining had been exhausted; and
that no settlement of the strike could reasonably have been anticipated.
The specific question to be asked is whether on July 23, 1935 the
respondent was justified in believing that further negotiation would
be fruitless and settlement of the strike beyond reasonable probability.
We think that it is quite clear that the respondent was not so justified.
It is true that on a number of occasions the union made attempts to
secure a closed shop or concessions tantamount to a closed shop. It
resolved on March 17, 1935, one week prior to the strike, that it would
not work with non-members. The respondent claims that further-
more, the closed shop was the only issue. This is not strictly true.
It is true that the demand for wage increases was not being strongly
pressed; and that the complaint as to the respondent's use of circular
letters had been temporarily composed. But the disputes over the
application of the two hour minimum pay clause of the Indianapolis
agreement and of the application of the arbitration clause to the
propositions of January 4th were both mentioned in the union pre-
strike resolution of March 17th.
Much more important, however, is the point that after the strike
the respondent raised a new issue which precluded the negotiation of
any agreement whatsoever. In its letter of May 10th to the Mayor
refusing to meet with him and the Scale Committee it announced that
the men could come back but without Union recognition or agreement.
In its advertisements of June 7th it repeated this stand and again on
June 11th it reiterated this in the conference between it and the Scale
•
DECISIONS AND ORDERS 197
Committee. The meeting of June 11th was by no means a clear dead-
lock on the closed shop issue. The Committee reasserted its demand
for a closed shop. The respondent's officers stated that the closed
shop could not be granted, that the men could come back but without
union recognition and that if they didn't want their jobs back they
would get somebody else. According to the respondent's witnesses,
the Committee stated at the conclusion that they would come back
only on their own conditions but would report the conversation to
their constituency and report back to the respondent. It is equally
consistent with the ,facts that this meeting failed by reason of the
union's insistence on the closed shop or by reason of the respondent's
insistence that it would make no agreement with the union at all.
Between July 19th and 23rd there occurred a series of events which
gave the respondent great advantages over its striking employees.
Martial law was declared, and picketing was prohibited.
Circumstances had so changed since June 11th that even if at that
time the union had clung to its closed shop demand, it was im-
probable it would do so any longer; the union sought to approach
the respondent through conciliators, through persons primarily in-
terested in composing differences; ostensibly its mood was concilia-
tory, its principal interest in settling the strike. Under all these
circumstances, the respondent could not reasonably have believed that
collective bargaining would necessarily have been futile. And in-
deed the respondent, itself, seems on July 23rd to have believed
otherwise and to have advised the conciliators that it would meet
with the Committee.
That the respondent was under a duty to meet with the Commit-
tee, if settlement were possible, seems clear. The Act requires the
employer to bargain collectively with its employees. Employees
do not cease to be such because they have struck. Collective bargain-
ing is an instrument of industrial peace. The need for its use is
as imperative during a strike as before a strike. By means of it,
a settlement of the strike may be secured.
It is our opinion that the respondent's refusal to meet with the
Committee after it promised to do so, resulted from its realization
that it could in any case open its plant and that to do so without
dealing at all with the union would discourage active support of the
union and render it useless. The respondent since May 10th had by
letter, by public advertisement, and by word of mouth stated that
it would neither recognize nor make any agreement with the union.
In its advertisement of June 11th the respondent stated that for 33
years it had' operated without union recognition or agreement, a
statement which ignored the Indianapolis agreement and suggested
that the respondent did not regard its obligations thereunder seri-
ously. It will be remembered that even this agreement was
198 NATIONAL LABOR RELATIONS BOARD
won only on threat of strike, that thereafter in negotiation not a
single demand of the union was ever granted, that all efforts of the
union to strengthen itself were resisted, and that the respondent
by its circular notices spoke over the heads of the union to its
members. After the strike the respondent gave clear expression
to its hostility and took advantage of the situation to make effective
this hostility.
During July it solicited the strikers individually to return to
work, and told some of them that it would not deal with the union.
It secured the aid of the police in opening its plant. On July 23rd
it no longer had pickets to contend with and applications for em-
ployment were numerous. On the same day it agreed to meet the
Committee. Nevertheless, though it was now in contact with its
employees' representatives, though negotiations had been initiated
looking to the settlement of the strike, the respondent continued to
solicit individual employees to return to work and at the same time
refused to engage in the negotiations. Thus, the employees had no
channel through which to arrange their return to work as an or-
ganized group, conformably to the decision of that group. By its
tactics, the respondent emasculated the union as an effective instru-
ment of employee representation. We hold that by so doing, it has
engaged in unfair labor practices within the meaning of Section 8,
subdivisions (1) and (5) of the act. It will be unnecessary to make
any decision with respect to the charges of refusal to bargain on
September 20 and October 11, 1935. These unfair labor practices
have led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
A question arises as to the form of relief. It would be futile
simply to order the respondent to bargain with the union since the
plant now has its full quota of men and the process of bargaining
could yield little comfort to those who are not employed ; nor do we
know whether the union now represents a majority. Under these
circumstances we must restore, as far as possible, the situation exist-
ing prior to the violation of the Act, in order that the process of
collective bargaining, which was interrupted, may be continued.
It is apparent that a number of those who were on strike are still
unemployed by the respondent or at substantially equivalent em-
ployment elsewhere, and that on the other hand, there are at present
employed in- the plant a number of individuals who were not so
employed at the time of the strike on March 23, 1935.
The purpose of the conference proposed by the conciliators on
July 23 was to settle the strike and to put the men back to work.
It does not lie in the mouth of the respondent to say that this result
would not necessarily have followed. The law imposed a duty to
DECISIONS AND ORDERS 199
bargain under these circumstances because that result might have
followed. It is respondent's conduct which has precluded that pos-
sibility. Therefore, we shall order the respondent to discharge from
its employment all production employees who were not employed
on July 22, 1935 and reinstate to the vacancies so created indi-
viduals who were so employed and have not since received substan-
tially equivalent employment elsewhere.
CONCLUSIONS OF LAW
Upon the foregoing findings of fact, the following conclusions of
law are made.
1. The Enameling and Stamping Mill Employees Union No. 19694
(the Union) is a labor organization, as defined in Section 2, subdivi-
sion (5) of the Act.
2. All the departments of the Terre Haute Plant of the respondent
with the exception of the office and clerical departments constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of section 9 (b) of the Act.
3. On or about July 23, 1935, the respondent refused to bargain
collectively with the union as the representative of its employees, or
at all, and by reason of such refusal has engaged in an unfair labor
practice within the meaning of Section 8, subdivision (5).
4. On or about July 23, 1935, the respondent interfered with and
restrained its employees in the exercise of their right to self-organ-
ization and to engage in concerted activities for the purpose of col-
lective bargaining and other mutual aid and protection, as guaran-
teed by Section 7 of the Act, and by reason of such conduct has
engaged in unfair labor practices within the meaning of Section 8,
subdivision (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2, subdivisions (6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, the Columbian Enameling & Stamping Company,
and its officers and agents, shall take the following action, which the
Board finds will effectuate the policies of the Act :
1. Discharge from its employment all production employees who
were not employed by it on July 22, 1935, and reinstate to the vacan-
cies so created individuals who were so employed and have not since
received substantially equivalent employment elsewhere and place
97571-36-vol. 1-14
200 NATIONAL LABOR RELATIONS BOARD
the remainder of such individuals on a list to be called for reinstate-
ment as and when their labor is needed.
2. Upon reinstating its employees as required in paragraph 1 of
this order, shall cease and desist from refusing to bargain collectively
with Enameling & Stamping Mill Employees Union, No. 19694 as
the exclusive representative of the production employees employed
by respondent in respect to rates of pay, wages, hours of employment
and other conditions of employment.
3. File with the National Labor Relations Board on or before the
thirtieth day from the date of service of this Order, a report in
writing setting forth in detail the manner and form in which it has
complied with the foregoing requirements.