Duncan Foundry and Machine Works, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1943

50 N.L.R.B. 609 (N.L.R.B. 1943)

In the Matter of DUNCAN FOUNDRY AND MACHINE WORKS, INC. and
- UNITED STEEL WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O.
Case No. C--569.Decided June 6, 19J
DECISION
AND
ORDER
On March 27, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom, and that it
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report annexed hereto. Thereafter, the respondent filed ex-
ceptions to the Intermediate Report.- No request for oral argument
before the Board was made by any of the parties. The Board has
considered the rulings made by the Trial Examiner at the hearing
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. .
The Board has considered the Intermediate Report, the respond-
ent's exceptions, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
except as noted below.
The Trial Examiner found that the respondent discharged Charles
Cairns, an employee, because of his affiliation with the Union and thus
discriminated against him in regard to the hi-3 and tenure of his'
employment. In discussing the evidence, the Trial Examiner inad-
vertently stated that Cairns returned to the respondent's plant on
July 16, 1942, after an absence caused by an injury which he suffered
while at work. The evidence shows that Cairns returned to work on
June 16, 1942. The respondent, contends that it discharged Cairns
on June 12 because of his failure to report to work on June 2, with-
out satisfactory explanation for his absence. It appears from the
evidence that when Cairns returned to work at 2 o'clock on the after-
noon of June 16, he was told by Juttemeyer that his services were
no longer required. On June 17 Cairns received from the respondent
a carbon copy of an unemployment compensation form, dated June
50 N. L. R. B., No. 85.
609
610 DECISIOINTS OF NATIOTP'AL LABOR RELATIONS BOARD'
12, and which read: "This man was to report for work on June 2d, ,
but never came in. Job declared vacated." The envelope in which
the notice was sent was postmarked June 16, 5:30 p. in. The Trial
Examiner found that the notice was not'mailed to Cairns until some
3 hours after he attempted to return to work on June 16. We do not
believe that the time shown by the postmark necessarily indicates
that the' respondent mailed the notice to Cairns at 5 p. in. after his
appearance at the plant. However, we find it clear from all the
evidence that Cairns was discharged on June 16 because of his union
affiliation and in violation of Section 8 •(3) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Duncan Foundry and Ma-
chine Works, Inc., Alton, Illinois, its officers, agents, successors, and
assigns, shall:
1. 'Cease and desist from :
(a) Dominating or interfering with the administration of the Em-
ployees' Representation Plan of the Duncan Foundry & Machine
Works, Inc., or its successor, Employees Association- of the Duncan
Foundry & Machine Works, Inc., or with the formation or administra-
tion of any other labor organization of its employees and contributing
financial or other,support to said labor organizations or to any other
labor organization of its employees;
(b) Recognizing Employees Association of the Duncan Foundry &
Machine Works, Inc., as the 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 other
conditions of employment;
(c) Giving effect to the agreement of July 24, 1939, with the Em-
ployees Association of the Duncan Foundry & Machine Works, Inc., or
to any modification, extension, supplement, or renewal thereof, or to
any superseding contract which may now be in force;
(d) Discouraging membership in United Steel Workers of America,
affiliated with the Congress of Industrial Organizations, or in any other
labor organization of its employees, by discharging, refusing to'reem-
ploy, laying off, or transferring any of its employees or in any other
manner discriminating in regard to their hire or tenure of employment,
or any term or condition of their employment; '
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their 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
DUNCAN FOUNDRY AND 'MAGIRNE WOKS ',' 1 C. 1611
activities for the purpose of collective bargaining, or other mutual aid
,or protection, as guaranteed in Section 7 of the Act. -
2. Take the following affirmative action, which the Board finds will
-effectuate the policies of the Act: -
(a) Withdraw all recognition from and completely disestablish
'Employees Association of the Duncan Foundry & Machine Works,
Inc., as the 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 other conditions of em-
ployment, and refrain from recognizing Employees' Representation
Plan of the Duncan Foundry & Machine Works, Inc., in the event that
said organization returns to active existence;
(b) Offer to Charles Cairns and Seward Kershner immediate'and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges;
(c) Make whole Charles Cairns, Seward Kershner, Chesley McKee',
Everett Culpin, Elbert King, Tony Forbes, Clyde Forbes, Paul Phelps,
Joseph Wooff, Hubert Phelps, William Simpson, Jerry Davis, and
Melvin Hamby, for any loss of pay each may have suffered' by reason
of the respondent's discrimination against him by the payment to
him of a sum of money equal to that which he normally would have
earned as wages during the period of his lay-off or from the date of
the discrimination against him to the date of the respondent's offer
of reinstatement, whichever is applicable, less his net earnings during
said period;
(d) Post immediately in conspicuous places throughout its Alton,
Illinois, plant, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices stating : (1) that the
respondent will not engage in the conduct from which it has been or-
dered to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e)
of^this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3)
that the respondent's employees are free'to become or remain members
of United Steel Workers of America, affiliated with the Congress of
Industrial Organizations, and that the respondent will not discrimi-
nate against any employee because of membership or activity in that
organization ;
(e) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith. - -
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent has discriminated against Philip Foley, Charles
Roades, and Percy Kershner, within the meaning of Section 8 (3)
of the Act, be, and it hereby is, dismissed.
612 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. William W. Ward, Jr., for the Board.
Carter, Bull & Garstang, by Mr. James E Garstang, of St. Louis, Mo., and
Green• and Hoagland, by Dir. Karl K. Hoagland, of Alton, Ill , for the respondent.
Simpson, Reed & Burroughs, by James L. Reed, of Evansville, Ill., for the
Association.
Mr. Clyde Huffstutler and Mr. McConnell Barr, of Granite City, Ill., for the
Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on November 5, 1942, by United
Steel Workers of America, affiliated with the C. I. 0., herein called the Union,
the National Labor Relations. Board, herein called -the Board, by the Regional
Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint
dated November 6, 1942, against the Duncan Foundry and Machine Works, 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) and (3), and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat 449, herein called the Act Copies of the complaint,
,together with notice of hearing thereon, were duly served upon the respondent,
the Union, and Employees Association of Duncan Foundry and Machine Works,
Inc, herein called the Association. Thereafter, upon the 'respondent's motion
and amended motion for continuance the Regional Director issued and duly served
upon the respondent, the Union, and the Association orders postponing the
hearing.
With'respect to the unfair labor practices, the complaint alleged, in substance,
that at its Alton, Illinois, plant the respondent: (1) from about February 1934
to June 1937, encouraged the formation and continued existence and dominated
and interfered with the administration of Employees Representatives of Duncan
Foundry and Machine Works, Inc, herein called the E. R. P.;' (2) about June 4,
1937, assisted and encouraged the investigation and formation of the Associa-
tion as successor to and alter ego of the E R P. and thereafter dominated and
interfered with the administration and encouraged and fostered the growth
and continued existence of the Association; (3) about June 1, 1939, as a part
of a plan of interference with the right of its employees as guaranteed in Sec-
tion 7 of the Act entered into a contract granting exclusive bargaining rights
to the Association, said contract therefore being invalid; (4) on various dates
during May and June 1942 and in several ways discriminated in regard to the
hire, tenure, terms, and conditions of employment of 16 named employees;' and
(5) by the foregoing acts interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On November 9, the respondent filed its answer denying the allegations of
the complaint as to the unfair labor practices.'
N
1 The exact name of the E R P. was Employees ' Representation Plan of the Duncan
Foundry & Machine Works„ Inc.
2 The names of the 16 individuals and the respective dates and types of alleged dis"
crimination against them are set out below.
3 On December 3, during the course of the hearing , the respondent duly filed an amended
answer nhich alleged certain matters pertaining to its contract with the Association and
to the alleged discrimination against the 16 employees and denied that any unfair labor
practice had been committed.
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 613
On November 17, upon the filing by the Association of a motion to intervene,,
the Regional Director issued an order, granting intervention to the Association
"to the extent of its interest "' On November 25, the Association duly filed
its answer denying in effect that it had received any assistance from the re-
spondent; that it was the successor of the E. R. P. ;'and that its exclusive bar-
gaining rights involved any violation of the Act.
Pursuant to notice, a hearing was held in Alton, Illinois, from November 30
to December 18, 1942, before the undersigned, Earl S. Bellman, the Trial Exam-'
mer duly designated by the Chief Trial Examiner. The Board, the respondent,
and the Association were represented by counsel and the Union by representatives.
All participated in the hearing -Full opportunity to be heard, to examine and
to cross-examine witnesses and to introduce evidence bearing upon the issues
was afforded ^ all parties. At the close of the hearing a motion by the Board
to conform the pleadings to the proof with respect to names, dates, and places
was granted without objection. At the request of the respondent, the parties
entered into a written stipulation providing for the taking by deposition of the
testimony of William M. Duncan, the respondent's president, who was not
available at the time of the hearing because of illness, said deposition to be
taken on January 4, 1943, in Alton, Illinois, and to be filed with the undersigned
on January 7, 1943.` Ruling was reserved upon a motion by the respondent to
dismiss the complaint in the Intermediate Report upon consideration of the
entire record. Insofar as said motion is inconsistent with the findings and con-
elusions set forth hereinbelow, said motion is hereby denied. Ruling on a motion
by the Association that the allegations of the complaint pertaining to Section 8 (2)
of the Act be dismissed was reserved for determination, in the Intermediate
Report. Said motion is hereby denied. All parties except the Union participated
in oral argument held before the undersigned. The respondent duly filed a brief
with the undersigned ; the Association a "Memorandum of Authorities" ; and
the Board a memorandum citing transcript references. The parties, were also
afforded an opportunity to file supplemental briefs after the taking of the
testimony of William Duncan by deposition. No such briefs have been filed.
On January 18, the respondent filed the transcript of the deposition of William
Duncan. The objection contained therein of counsel for the Board to certain testi-
mony is hereby overruled. The two exhibits offered therein by counsel for the
respondent are hereby admitted into evidence as Respondent's Exhibits 21 and
22, respectively. The deposition in its entirety is hereby admitted into evidence.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Duncan Foundry and Machine Work, Inc., is and has been
since 1926 a corporation organized under the laws of the State of Illinois At its
office and plant in Alton, Illinois, the respondent' is engaged in the manufac-
ture, sale, and distribution of machines and of iron, steel, and alloy castings. The'
principal raw material used is scrap iron. Of the 2,796 tons purchased in the
year 1941, 40 percent was shipped to the plant from points outside the State
of Illinois. Approximately one million dollars worth of finished products were
4 At the hearing the undersigned ruled that the interest of the Association did not include
the alleged discriminations as to the 16 employees. i
5 Subsequently, because of delay in filing the deposition, the undersigned notified the
parties by telegram on January 15, 1943, that the time for filing the transcript of the
deposition was extended from January 7 to January 18.
536105-44-vol. 50-40
,
614 D'ECISiIONS OF NATIONAL, LAIBOR RELATIONS BOARD
sold during 1941, about 43 percent being shipped to points outside the State of
-Illinois. Although the respondent's business has increased during 1942,q the above
stated proportion of interstate shipments remained approximately the same.
II. THE ORGANIZATIONS INVOLVED
United Steel Workers of America is a labor organization affiliated with the
Congress of Industrial Organizations. It admits to membership employees of the
respondent. ' I
Employees' Representation Plan of the Duncan Foundry & Machine Works,
Inc, was an unaffiliated organization which represented employees of, the re-
spondent other than officials, technicians, clerks, and persons "holding regularly
a purely supervising position."
Employees Association of the Duncan Foundry & Machine Works, Inc., is an,
unaffiliated labor organization admitting to membership only employees of the
respondent. All such employees are eligible for membership except employees
in a "supervisory or administrative capacity."
III. THE UNFAIR LABOR PRACTICES
A. Eiicouragement of the formation and continued existence of the E. R. P. and
domination and interference with the administration thereof
On January 4, 1943, three identical petitions containing the signatures of
119 employees were presented to the respondent. The signatures were secured by
a group of non-supervisory employees under the leadership of Homer Ferguson
circulating the petitions in the respondent's plant. These petitions were addressed
to the respondent's president and read as follows
We the undersigned . . . desiring to promote the pleasant relations
between the company and its employees which has prevailed in the past
... . petition . . . for formation of a Company Union which may provide
effective communication and means of contact between the management
and the employees on matters pertaining to industrial relations-such a
plan to be one in which duly authorized representatives shall be elected
i by secret ballot by the employees of the Company. It is understood that
such a Company Union . . . shall not be identified or controlled in any man-
ner or way whatsoever by outside or so called Union Organizations. It our
petition is granted the undersigned promise in good faith to work to the
end of insuring Justice maintain peace and Harmony and Promote the
common Welfare of both Management and employees. -
About the time the petitions were presented and before any written plan or
organization had been drawn up, President Duncan held a discussion with a group
'of some 8 or 10 employees. At that time Duncan approved the, idea of the
employees having "an opportunity to discuss their working conditions" and
considered with the group "ways and means" of obtaining their objectives. On
,,, January 10, an election was conducted by non-supervisory employees in the plant
during working hours without loss of pay to any participants at which time
seven representatives were elected.
On January 29, the minutes of the E R. P.7 show that the elected represent-
ative met at the plant with J. E. Juttemeyer, the respondent's personnel man-
'The respondent 's president, William M. Duncan, testified that the production of steel
castings had gone up from 350 tons in November 1941 to 785 tons in October 1942 "
7 The findings concerning the E R P . are based largely on the minutes which were typed
by the respondent throughout the life of the E R P. " • • •
1
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 615
ages, who continued to serve as the respondent's representative throughout the
life of the E. R. P. At the opening of the meeting, Homer Ferguson was elected
,chairman and Rueben Jouett, secretary. Following the election, Juttemeyer
spoke of "the possibilities of the representation plan" stating :
that he hoped co-operation, understanding, and agreement on matters
affecting both the employee and employer would always be the prime object
of the movement which he believed was what the committee desired who
petitioned the company for this plan in behalf of the employees as well as
protection from outside antagonists and organizers who were not interested
except from the side of the racketeer to make some easy money.
Juttemeyer then read an article entitled "Representation Plans Foster Concord
Rather than Antagonism." He suggested that the regular monthly meetings be
held on Saturday mornings and stated that representatives would be compen-
sated for their time at such meetings. It was agreed by the representatives that
it would be best not to open meetings to employees as this would "probably inter-
fere with the proper dispatch of matters which would be brought up and interfere
with the efficient operation of the plan."
On February 13, the seven employee representatives and Juttemeyer held a
second meeting in the plant. The minutes of the January 29 meeting were read
sand approved. Chairman Ferguson read proposed bylaws which he had drawn
up; after a short discussion they were approved and signed by the seven employee
representatives. Juttemeyer did not sign the bylaws but he was asked to have
them "typewritten and posted in all divisions so that all employees could read
them." A general discussion was then held relating to putting the E. R. P. into
effect. Juttemeyer stated that a meeting of all foremen would be called to
acquaint them with the bylaws. He also said that "everything would be done to
assist the representation committee and the plan in every way." 8
The bylaws of the E. R P provided for the election of employee representatives
from each of three specified divisions of the plant upon the basis of one representa-
tive for each 25 employees or major fraction thereof, each division being entitled
to at least one representative 0 The units of representation were based upon
natural division of the company's operations and corresponding supervision and
could be changed to secure a more complete and fair representation upon agree-
ment between the employee representatives and the respondent's president or
his representative. All persons upon the respondent's pay roll, were eligible to
vote in annual elections except'"company officials, technical men, clerks, or persons
having the'right to discharge or hire,' or one holding regularly a supervising posi-
tion " Eligible voters who had been on the respondent's pay roll for one year
prior to nomination, had attained the age of 21, and were American citizens were
qualified for election as representatives. In divisions with more than one repre-
sentative, the candidate receiving the highest number of votes was elected for a
2-year term. In the case of a tie, seniority in the respondent's employ deter-
mined the choice of representative.10 A representative could be recalled upon
petition of two-thirds of the voters in his division. A representative's office was
vacated upon termination of his employment with the respondent, upon transfer
to another division, or upon appointment to a position disqualifying him from
8 At the hearing Juttemeyer testified that while the respondent had not signed the by-,
laws , it had approved the plan of operation and had assisted in attaining its objective,
8 Four representatives from Division 1 signed the bylaws ; two from Division 2; and one'
from Division 3. The divisions and the number of representatives from each remained the
same during the life of the E R P.
10 In the election of 1935 , two candidates for representative'of Division 3 received the
same number of votes . One had been employed by the respondent almost a year longer than
the other and he was declared elected in accord with the above provision of the bylaws.
616. DECISIONS OF NATIONAL LABOR RELAT'IO'NS BOARD
`nest highest number of votes.
The bylaws provided for a representative appointed by the respondent who
was called "management's representative." This representative was to keep the
respondent in touch with the employees' representatives and represent the man-
agement in negotiations and to interview all representatives "with reference to
matters of concern to employees." Certain rights,-among them the right to hire,
discharge for pioper cause, transfer, lay off for lack of work, and increase or
decrease operations, were reserved at all times for the management. While pro-
vision was made that the "Employees' Representation Committee" adopt its own
rules and procedure, elect its own secretary and chairman, and appoint its own
committees, the bylaws also provided that a record of all such proceedings be
furnished the management and that a representative of the respondent be ad-
mitted to all meetings "with the full privilege to take part and enter into their
considerations and discussions, but with no right to vote, in order to provide
close relationship with the company and to facilitate any matters of business
which may concern the representation plan and the company."
The bylaws, which could be amended by two-thirds of the employees' repre-
sentatives, set up a grievance procedure requiring several successive steps. First
the individual employee had to seek to adjust any grievance directly with his
foreman. If such attempt failed, the matter could then be referred by the
employee to a representative who would seek to adjust the matter with the fore-
inan. The next step was presentation to the respondent's representative at the
meeting of the E. It. P. If this did not result in adjustment, the matter could be
referred to the plant superintendent. In the event of his failure to reach an
agreement, the right was reserved to the employee representatives to request a
meeting with the respondent's president. In case of failure to agree at this
stage the matter could go to arbitration It was provided that the respondent's
president could not hear any matter which had not followed the consecutive order
set out above -
What the minutes referred to as the "first regular monthly meeting" of the
E. R. P. was held on February 24.. After the reading of the minutes bf the Febru-
ary 13 meeting, Juttemeyer reported on the meeting of all foremen and sub-
foremen held on February 17 at which the E. R. P. was explained and the bylaws
read "so that there might be a complete understanding of all employees and those
charged with supervision regarding the adoption and operation." "
After its establishment as set out above, the E. R. P. functioned for over 3
years. During this period, no matter was ever carried as far as the respondent's
president for adjustment. A number of grievances and working conditions, often
trivial in nature, were discussed and sometimes adjusted at the monthly meet-
ings, which Juttemeyer always attended as the respondent's representative. The
most frequently recurring subject of discussion brought up by the employee rep-
resentatives concerned conditions in the bathroom The subject most frequently
brought up by Juttemeyer concerned safety procedures in the plant. As a part of
the procedure at many monthly meetings, a complete tour of the plant for the
'purpose of inspecting conditions relating to safety was taken by the employee
representatives ^ and Juttemeyer, who was in charge of the respondent's safety
program. Early in the operation of the E. R. P., at the meeting of August 25,
1034, the employee representatives were designated to act thereafter as the
"It should be noted that at no time during the operation of the E R P. was a mass
meeting of the employees held. Eventually the employees learned of the operation of the
E R. P through the representatives, their supervisers, and postings on the respondent's
bulletin boards
voting under the E R P. Any vacancy was filled by the candidate receiving the
e
DUINCAN, FOUNDRY AND MACHINE WORKS, INC. 617
respondent's official plant safety committee, with instructions to report to the
-main office employees who disputed their authority.12
The minutes show that for over three years Juttemeyer played a leading role
in the monthly, meetings of the E. R. P. Upon occasions he read the minutes in
the absence of the secretary. Upon four occasions in the absence of the secretary
.Juttemeyer kept the minutes. One monthly meeting, that of September 26, 1936,
was skipped because Juttemeyer was not available. Juttemeyer, during the 1934
meetings of the E. R P., frequently read articles from "Iron Age.s13 Throughout
the operation of the E. R. P. the minutes show that Juttemeyer frequently made
talks at the monthly meetings of employee representatives on such subjects as in-
dustrial conditions generally ; the respondent's business, financial,' and employ-
merit outlook ; the comparatively favorable treatment accorded the respondent's
employee, the adverse influence of legislation and governmental 'interference on
business conditions ; the undesirability of certain labor legislation ; and the dis-
turbing nature of labor organizational activities Fo: instance, in August 1934,
after discussing the respondent's difficulties in meeting increased wages under the
N. R. A. Juttemeyer asked the representatives "to impress this . . . upon the
minds of those employees who fail to consider the company's problem." In July
1935, Juttemeyer discussed the outlook for business and certain new products
which the respondent was developing that would provide additional work ; stated
that "the ending of the N. R A. regulations would benefit employees" as to over-
time work ; and pointed out that pending national tax legislation was holding up
business and would influence the respondent's ability to "keep going in all depart-
ments on full time." In August 1935, Juttemeyer told the representatives that
adjournment of Congress might stimulate business enough "to keep our regular
men employed" ; that legislation Congress had hurriedly passed would hinder busi-
ness; and that the social' security legislation would "affect payrolls and all em-
ployees" unless it was declared unconstitutional. At the July meeting in 1936,
Juttemeyer advised that the outlook for business was not good ; discussed "un-
settled labor conditions in the Alton area" ; and stated that the "agitation caused
by those who were trying to organize the steel industry was causing some work
to be held up."
The minutes show that the respondent repeatedly used the E. R. P. as a
means of disseminating information and securing approval for various of its
projects. For instance, Superintendent George Duncan, Jr., attended the meet-
ing of April 1934, "to state the position of the Company in regard to insurance
and safety matters, and to take part in the general discussion of various mat-
ters up for consideration." In September' 1934, Juttemeyer showed the repre-
sentatives samples of safety shoes and urged that all employees equip them-
selves with such shoes. At the same meeting, Juttemeyer explained and se-
iz On this matter the minutes for August 25, 1934, contained the following entry :
Cannon and Ferguson told of their experience In calling attention to some employees
regarding some work which they were doing in a careless manner and likely to cause
accident.' They reported that some employees seem to feel that they had no business
or authority to do this and took exception to their request. The representatives
were advised that a bulletin would be posted advising all employees that the company
had asked the shop representatives to act as a safety committee and that each em-
ployee would be expected to heed any request of any members of the shop representa-
tive committee on matters concerning safety anywhere in the plant , and in the future
to report any employee to the main office who took exceptions to their requests on
matters of safety.
Such a bulletin was thereafter posted
>3 For instance , in September Juttemeyer read an article dealing with the "dissipation of
public funds by the Government" ; in October he read two articles ; and in November,
"several articles from issues of IRON AGE."
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cured approval for the future plans of the "Welfare Club." 14 In March 1936,
Juttemeyer discussed the desirability of having the eyesight of all employees
tested to determine if glasses were needed. The representatives agreed that
the survey "would be for the best interest of the employees." The use which
the respondent made of the E. 'R. P. in such matters is clearly revealed by the
following entry in the minutes for August 1934: 1
r
Mr Juttemeyer spoke . . . of representatives assisting in keeping as-
signments of wages down to a minimum by speaking a word of advice to,
certain employees who were always having their wages tied up by pur-
chasing unnecessary things. . . Mr. Juttemeyer said that he would turn
over the navies of such persons to 'the shop representatives . . . and that
[he] would also assist in endeavoring to discourage employees from pur-
chasing beyond [their means]
At the meeting of May 1935, at the request of the secretary, Juttemeyer read
a letter from the "Bershire Employees Association relative to the Wagner Bill
which was intended to outlaw company organization." At the request of the-
representatives, Juttemeyer wrote a reply, stating that the,E R. P had gone
on record as "opposing the Wagner Bill, or any bill that would upset or destroy
representation plans" ; that no immediate action was being taken because "we
feel that the N. R. A. decision leaves the American Federation of Labor and
the Wagner Bill out in the cold, and shall ,await further development from the
results of the Supreme Court decision" ; and that should any future attempts
be made in Congress to "outlaw or destroy direct representation plans and
pleasant relationship between an employee and employer" the E. R. P. would
be glad to cooperate to defeat such bills.
On February 23, 1935, a joint meeting was held between the representatives„
the shop foremen, and Superintendent Duncan. Juttemeyer took charge, and_
the operation of the E. R. P during its first year was discussed All present
agreed "the plan was highly' satisfactory in adjusting complaints, misunder-
standings, and promoting a better feeling between employer, foremen, and em-
ployees." 11 Juttemeyer stressed his desire that all employees follow the griev-
ance procedure strictly. Among other things, Juttemeyer discussed safety de-
vices in use, the welfare work conducted during,the past year, and/ pending
-legislation for a 30-hour week which would "handicap both employer and em-
ployee." Superintendent Duncan then discussed the prospects for new busi-
ness ; the "part the employee must need to play to meet the close competition" ;
and the "necessity of cutting selling price 'to secure any volume of business to
keep present employees working full time."
14 Duncan Foundry Welfare Safety Club, of which Juttemeyer was secretary for several
years, was founded in 1933 It is a voluntary organization of the respondent's employees
providing insurance in case of sickness, accident and death, and such welfare and social
activities as, basketball, softball, and baseball teams, Christmas baskets, annual picnics, and
frequent dances. Employees pay a membership fee of $1 and sign cards authorizing the
deduction of 45 cents per month from their pay, which amount is matched by the respond-
ent: The respondent also for some time has made voluntary payroll deductions for fees in
two other organizations, Credit Union and Group Hospitalization
15 It should be noted that later, when- the question of overtime pay was raised by one of
the employee representatives at the monthly meeting of August 1935, Juttemeyer stated
that the respondent would not pay time and one half for overtime and if "forced to do so
there would not be any overtime." At the hearing, Juttemeyer could recall no case in
which wage rates were settled between himself and the employee representatives How-
ever there were several occasions upon which, questions of rates and hours were referred
back to foremen. Juttemeyer testified that they got along very well on grievances under
the D. R P., but he could not recall any instance where the representative insisted upon
any matter and won.
DUNCAN FOUNDRY AND MACHINE W'O'RKS, INC. 619
At each of the three December meetings during the existence of the E. R. P.,
a' formal resolution of appreciation of the respondent's cooperation was adopted.
For example, the letter written pursuant to the resolution adopted in Decem-
ber 1935, read as follows :
At a meeting . . . a resolution ,was passed to extend to the Management
of the Company and their representative at the monthly meetings, Mr.
Juttemeyer, their appreciation of the willingness, the hearty co-operation
and the encouragement given to the representatives during the year just
past in handling matter of welfare and working conditions between em-
ployer and employee in this plant.
With the close of our second year . . . we hope-that the same pleasant
relationship may continue to be in effect during the year 1936 as have char-
acterized the past'tNdo years of our association in solving problems of man
agement and employee Again we wish to thank you for past co-operation in
matters of interest between the company and its employees.
In addition to the above discussed election of January 1934, conducted prior
to the adoption of the bylaws, three elections were held under the bylaws of the
E. R. P. These elections took place in January 1935, January 1936, and January
1937. The elections were held in the plant during working hours and those par-
ticipating received no deduction from their pay. The ballots and ballot boxes
were furnished by the respondent. There were no membership requirements,
all employees not excluded under the bylaws taking part in the annual elections.
No dues were collected, the respondent meeting all expenses involved in the
operations of the E. It. P. Representatives were paid for the time which they
spent attending meetings. As provided in the bylaws, upon several occasions
the positions of representatives became vacant upon their leaving the respond-
ent's employ or accepting a position in a group excluded from participation.16 The
employees of the respondent never participated in-a mass meeting under the
E R P nor were they ever given an opportunity to vote on the ratification of its
bylaws.
From the foregoing facts as to the establishment, structure, and functioning of
the E. R. P., the undersigned finds that the respondent encouraged the formation
and continued existence of the E. R. P. and dominated and interfered with its
administration. The undersigned further finds that the respondent repeatedly
and in several ways used the employees representatives as,its agents in carrying
out plans and policies' among its employees and that it utilized meetings of the
E R. P. to expound its points of view concerning business and management
policies, national legislation and the disturbing nature of union organizational
activities. The undersigned also infers and finds that during the operation of the
E. R. P, the employees representatives, particularly those who served as officers,17
became identified in the-minds of the respondent's employees as its agents.
The undersigned further finds that by dominating and interfering with the
administration of the E. R. P. and by contributing financial and other, support
10 In all of these cases, occurring from 1934 through 1937, the candidates who had received
the next highest number of votes at the time of the elections succeeded to the vacated
positions.
17 Homer Ferguson served as chairman of the E R P. from its inception until the election
in January 1937, after which he was a representative Arthur Cannon served as repre-
sentative from the inception of the E. R. P and in January 1937 was elected its chairman.
A. W. Kruse was elected secretary of the E. R P. in January 1935 and was thereafter
reelected in January 1936 and January 1937.
620 DECISIONS OF NATIO'N'AlL LABOR REILAT'IONS BOARD
thereto, the respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act 1S
B. The transition to the Association
On April 15, 1937, 3 days after the decisions of April 12 of the Supreme Court
of the United States upholding the validity of the Act, a meeting of the E. R. P.
was held in the evening in the respondent's main office. That meeting was
attended by the employee representatives, Juttemeyer, all foremen, and Superin-
tendent Duncan. Several matters concerning working conditions were discussed.
Among them was the possibility of working a 9-hour day and eliminating the
5-hour shift on Saturday. One 'of the representatives raised the question of
vacations for employees with at least 5 years' service. , Superintendent Duncan
stated that he could not give any "definite advice on this matter at this time."
Juttemeyer then talked on better safety practices, problems confronting industry
and the respondent, and the respondent's tax load on the basis of its pay roll.
After his talk, Juttemeyer announced the setting of a minimum wage of 50 cents
an hour and the granting of a general wage increase affecting "every employee
in the plant." The minutes contain the following entry in respect to. that
announcement.
The increase granted met the approval of the shop committee with applause
since the whole matter was a surprise and no demands had been made for
any increase by employees.20 11
During the latter part of May, 1937," Juttemeyer sent for the employee
representatives of the E R. P. He met the seven representatives on the porch
of the respondent's office and told them that since the Act had been upheld by the
Supreme Court the respondent could "no, longer work under" the E. R. P.; that
there could be, no further meetings on the respondent's property; that the
respondent could, no longer "be a party to that organization"; and that they
"would have to do something else." Chairman Cannon then asked Juttemeyer
what they could do. Juttemeyer replied that- the respondent "could no longer
'$ Although, as is found above, the respondent dominated and interfered with the forma-
tion of the If. R. P., its activity in that respect occurred prior to the passage of the Act and
accordingly did not constitute an unfair labor practice
19 Such vacations with pay were announced to the officers of the Association, in- June 1938.
20 The above findings are based upon minutes containing the date "April 15th", without
any year set out, which the undersigned finds to be minutes tor April 15, 1937. In the ex-
hibits, these minutes appear among the minutes for 1934 The E R P. minutes were kept
in a loose leaf notebook These are minutes for Apiil 28, 1934, in the proper sequence.
They show Homer Feiguson„ 1who was then the chairman, as chaiiman, and the other repre-
sentatives of 1934 are named therein The April 28, 1934, minutes also show continuity
with the monthly meetings for 1934. On the other hand, the minutes for "April 15th"
show continuity with the minutes for 193-7. The "April 15th" minutes show Arthur Can,
non as chairman and Cannon did not become chairman until January 1937 Also the
other representatives named hi the "April 15th" minutes are correct for the year 1937 and
for no other year. Further, the minutes for December 1936 show that a motion was car-
ried for a joint meeting every 3 months with the foreman and plant superintendent and
the minutes for January 1937, show that the date for such quarteily meetings was set as
the last month of each quarter, the first being set for March 1937. No minutes appear for
a meeting in Maich 1937 The minutes of "April 15th" contain an entry that that meet-
ing had been postponed from March because of Superintendent Duncan's inability to attend
As now arranged, the minutes of the If. R P. end with the meeting of Febiuary 1937. al-
though the respondent does not contend that it took any action to abandon the E R P.
until after the Supreme Court decisions of April 1937.
21 This date is based upon Cannon's testimony as to the period of time which elapsed
between events prior to the meeting of June 4, 1937, discussed below.
DUNCAN FOUNDRY AND MACHINF1 WORKS, INC. 621
tell them what to do" and that they "were on their own" and could do what ever
they wanted to do. Thereupon the brief meeting terminated 22
The respondent at no time took any action concerning the E. R. P. other than
the above brief statement made by Juttemeyer to the representatives . No state-
ment was ever issued to the employees as a whole , either orally or by posting of
a notice, that the respondent was in any way modifying its long established rela-
tionship to the E. R. P. or its attitude toward union organization . Nor is there
any evidence that the representatives themselves ever took any formal action to
abandon the E. R. P.
After leaving the above meeting with Juttemeyer and before returning to their
work, the seven representatives met for some 15 or 20 minutes on the railroad
track between the office and the plant to discuss the situation . Cannon suggested
that a meeting be held at his house and his suggestion was accepted . There-
after the representatives told the employees that, because the Act had made the
E. R. P. unlawful , they "had to do something else," and invited some of them to
attend a meeting at Cannon 's home. The leadership in doing "something" was
assumed by Chairman Cannon and Secretary - Kruse. From all the evidence,
the undersigned is convinced , and finds that the employee representatives, did
not inform the employees that the E . R. P. had definitely been abandoned and
that no such impression became "common knowledge " in the plant.23
About the last of May ,24 the employee representatives and several other per-,
sons 2" met at Chairman Cannon's home . At the invitation of Homer Ferguson,
who was a representative and had been chairman of the E. R. P. for 3 years, two
employees of the Standard Oil Company plant at Woodriver, Illinois, some 5
miles away, were present . They explained how their unaffiliated organization
at Woodriver functioned and presented copies c,f their bylaws and their con-
tract. These were read , discussed , and left with the representatives. It was
decided to hold a meeting of all employees at the Odd Fellow 's Hall in North Alton
on June 4. Plans for the meeting were then discussed and two or three possible
22 The above findings as to what, transpired are based upon the testimony of Juttemeyer,
Cannon and Kruse.
23 When called as a witness by the Association, Kruse testified on direct examination
when asked if he had infoimed employees in his department that the E R P. had been
abandoned • -
A Well, I told them the same day or the next day at the noon hour that we had to
do something, that this was no longer good, and they all suggested that we have the
meeting, they all agreed on that, as early as we could
Christian Schmidt, the first president of the Association, testified when called by the
Association, that he did not know "definitely" that the E R P. had been abandoned prior
to the mass meeting in June. When asked his best recollection of what Cannon had told
the men in the plant, Schmidt replied :
A Well, so far as I recollect, he told us that the old it R P. would not stand any
more under the new Wagner'Act, and we would have to do something else.
William Miessner, Jr., the Association's • first secretary, testified on direct examination
when called by the Board that lie could not iecall heating any discussion in the plant prior
to the June 4 meeting that the E. R P. had been outlawed Later he'testified that he had
heard by word of mouth that the "Wagner Act had virtually abolished" the E it. P. He
further testified that be would not say that it was "common knowledge" at the plant but
that it "could have been another tale going around " According to Miessner, one man
whose name he could not recall told him that "a new union would have to be formed "
29 Cannon testified that the meeting was held a few days after Juttemeyer's statement
and not over a week before the meeting of June 4.
23 Among those who attended the meeting at Cannon's home were four men later elected
to offices in the Association formed at the meeting of June 4 These were Christian
Schmidt, who was elected the first president of the Association ; Lial Applegate, who was
elected the first treasurer ; Thomas Hunt, who was elected a representative ; and August
Kaesliamer, then the sole representative of Division 3 under the E R P , who was elected
a representative.
a
622 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names for an organization were suggested. Thereafter Cannon made arrange-
ments for the hall which was later paid for by the Association. A notice was
posted' on the plant bulletin board, announcing that "there, would be a" mass
meeting held in the Odd Fellow's Hall on important business, and urging every-
one to attend." This notice'was signed'by, Secretary Kruse 26, - t
In preparation for the meeting of June 4, Cannon, Kruse, and Applegate drew
up a draft of an agreement, patterned in part on the agreement at the Standard
Oil plant. In explaining this action, Cannon testified :
We were trying to get everything going as quick as.we could and thought
if we had a working agreement and had it ready and accepted by a new
organization of some kind we could go ahead. . .
This draft agreement was dated June 1, 1937, and was between the respondent
and Duncan, Foundry and Machine Employees Association of, Alton, Illinois.
It -provided for recognition and exclusive bargaining agency; freedom for
employees as individuals and groups to present grievances to the respondent ;
freedom of employees to join t4e contracting organization or any other labor
organization; vacations with pay on the basis of one day per year of service
up to 5 years and vacations of one week to employees with over 5 years' service;
and the application of seniority rights by classification only. An elaborate
procedure for "dealing with questions at issue" was provided which was similar
in its successive steps to that of the E. R P
The draft agreement was left with President Duncan who approved part of
.the provisions' and objected to some of them. Those objected to were "cor-
rected," as Duncan testified. The revised agreement also was dated June 1, 1937,
and was between the same parties. The only substantial changes made were:
(1) the provision for vacations was stricken entirely; (2) a new provision
,against a strike or a lock-out pending negotiations, of grievances was inserted ;
and (3) the seniority provision was changed to read "the present policies of the
company as to Seniority rights shall be applied." On all the evidence, the under-
signed believes and finds that the above proposed agreement was presented to
the respondent and "corrected" prior to the meeting of June 4.''s
On June 4, the mass meeting, which had been planned at Cannon's home and
f RE Cannon testified that if anyone signed the notice Kruse did Kruse was serving his
third term as secretary of the E R P. When called by the Association, Kruse testified
that he and Cannon were the leaders and did not deny having signed the notice Further,
George Horstman, the second president of the Association, when asked to explain why the
bylaws which were later used by the Association for some 2 years, and which referred to
the meeting of June 4, 1937, in the preamble, bore the heading "Employee's Representation
Plan," testified as follows :
A. I believe I can explain that. This meeting was called under the heading of
Employee's Representation Plan Therefore, it is proper to have that as heading of
these pages.
i n Since the proNisions for this procedure, which constituted about 50 percent- of the
agreement,,were almost identical with provisions in the agieement adopted in 1939, they
are set forth below in discussing that agreement.
"'As is discussed below, the minutes of the June 4 meeting show that an agreement was
presented to the employees at the opening of that meeting and rejected by them, George
Horstman testified that Cannon told the employees at the June 4 meeting that the agree-
ment had been submitted to and "was all right with, Mr. Duncan " Duncan testified at
one point, that the agreement was submitted "along in May or June " While Schmidt, the
first president of the Association, testified that the Association presented a, proposed
agreement "right close to August," he was not able to recall who submitted it to Duncan.
In any event, the undersigned does not believe the agreements in evidence were submitted
by the Association. Both the original and "corrected" agreements produced by the re-
spondent are dated June .1, 1937, and the name of the labor organization therein is different,
from the name of the Association.
D'UNCAN FOUNDRY AND MACHINE WORKS, INX. 623'
announced by a notice on the respondent's bulletin board, was held. Cannon
called the meeting to order. Kruse was on the rostrum with him. Cannon
informed the employees of Juttemeyer's statement that the E. R. P. was illegal'
under the Act and that they would have to do something else. Cannon explained -
that an agreement had been drawn up and approved by Duncan. He then read
the, agreement which *as discussed. The employees were not satisfied with
the agreement and rejected it. After discussing various possibilities, it was
decided by a show of hands to form an unaffiliated organization. Two or three
names were discussed and the present name of the Association was accepted.
The suggestion was made that the old officers be retained, but this was vetoed
without a formal vote 2D
After the decision to elect new officers, Cannon continued to preside while an
election by'secret ballot was held for president. A total of 107 votes was cast80
Christian Schmidt was elected president, receiving 53 votes. Cannon ran second,
with 25 votes and the other condidates received 24 votes and 5 votes, respectively.
Upon his election, Schmidt took over the chairmanship of the meeting. Three
men were nominated for vice president. Al Struel was elected, receiving 46 votes
out of the 86 votes cast ' Thereafter William Miessner'was elected secretary "by
a majority vote" and Lial Applegate was elected treasurer. It was then decided
to elect one representative from each of seven divisions and the seven representa-
tives were elected." It was also decided that in presenting grievances, the
aggrieved employee, his department representative, and the foreman must lie
present 3a The period of office was established as 1 year ; a "membership fee" of
25 cents a month was set ; and it was determined to hold meetings once a month at
the Odd Fellow's Hall in North Alton.94 After setting the next meeting for June 9,
the meeting adjourned
The meeting which was set for June 9 was not held as provided for at the close
of the meeting on June 4. In lieu thereof, the employee representatives of the
E. R. P. and the officers and representatives of the Association met at the home of
Lial Applegate because they believed that it was "best not to have another mass
19 The findings concerning the meeting of June 4 are made upon an analysis of the testi-
mony in the light of the minutes. The minutes, which set forth in detail the actions taken
beginning with the election, make no mention of anything before the election except that
Cannon read aloud the agreement and "a few points were discussed " The minutes then
state, "Some business was taken up before officers were elected, therefore this business
was dropped " From the relatively consistent testimony of several witnesses, the under-
signed believes and finds that the business referred to as "dropped " included the rejection
of the agreement , a decision to form an unaffiliated organization , the selection of a name,
and the decision to elect new officers None of these actions are mentioned in the minutes.
However, it should be noted that the minutes were written by William Miessner, Jr, who
was elected secretary at that meeting. Miessner wrote up what took place before his elec-
tion from memory and what took place thereafter from notes which he made at the
meeting.
30 The number of employees of the respondent exclusive of officials, supervisors, and
office employees on June 1, 1937, was 203
s< The only indication in the record as to why the number of people voting for vice
president was 21 less than voted for president is the testimony of Horstman that upon
Cannon's defeat, Cannon and others got "mad" and left the meeting. Cannon denied
leaving. No finding is made herein as to whether he did leave.
13 This constituted a departure from the E it. P under which there were three divisions
having a total of seven representatives. As is pointed out above, two of the representatives
elected'on June 4, Hunt and Kaeshamer, as well as president-elect Schmidt and treasurer-
elect Applegate, had attended the previous meeting at Cannon's home.
"This was a departure from the E. it. P. under which the employee had first to take up
his grievance directly with his foreman before going to his representative.
as These all constituted depaituies from the E. it. P., which had no dues, no meetings of
the employees , and under which the representatives in Divisions 1 and 2 receiving the
highest number of votes were elected for 2-year terms. -
N
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting." The minutes of this meeting between the "officers of the new and old! -
associations" are set forth in full below :
JUNE 9, 1937.
Thinking it best not to have another mass meeting the officers of the old
and new associations were called together at a little friendly meeting at the
home of Lial Applegate. A letter of appreciation was written which was as
follows :
To The Management Of The Duncan Foundry & Machine Works :
We the undersigned wish to extend our appreciation for the co-operation
the company has shown in the past, and hope that in the future we shall still
enjoy the same relationship as we have had in the past. Thanking you again.
Out-going committee
In-coming committee
All officers having signed under the above headings.
From the above minutes and the testimony of Horstman, Cannon, Schmidt, and
Miessner the undersigned finds that the officers and employee representatives of
the h . R. P. signed the above letter of appreciation under the hearing "Out-going
committee" and that the officers and representatives of the Association signed
under the heading "In-coming committee." The undersigned further finds that
this meeting also took up such "routine procedure . . . of an executive meeting
after forming a new organization" as working out bylaws and membership cards.
On June 10, the "new officers" accompanied by Cannon and Kruse,' met with
President Duncan, Superintendent Duncan and Juttemeyer, in President Dun-
can's office. The new officers were introduced and President Duncan remarked
that "the executive board was bigger in this Union than it had been in the
old organization." Duncan was told that at a meeting attended by 100 to 125
employees, the Association had been formed and officers elected. Recognition
was asked for the Association as the "collective bargaining agent for the men"
on the ground that over 50 present of the employees had been at the meeting.
The respondent asked for no further proof of authorization and thereupon
recognition, as the minutes show, "was gladly given." Thereafter, as the min-
utes show, the following took place :
The letter of appreciation was handed to the company which received it
very appreciately. [sic] The company stated that they would cooperate
with the Association to the fullest extent so as to make every thing work
out as near perfect as possible.
About 10 days after the meeting of June 4, two types of printed cards were
secured. One was' an application for membership in the Association and the
other was a card certifying membership therein. The second card had, a space
at the bottom for the signature of the secretary and spaces on the back for
"Indorsement of Assessments Paid." Secretary Miessner signed the member-
ship cards in blank and the applications along' with the signed membership
cards were given to the representatives of the various divisions to solicit mem-
bers. In soliciting members, when an applicant filled in his application blank,
the representative then filled in his name on a previously signed membership
card, credited any dues payments on the back thereof, and gave it to the
911liiessner testified that he was "pretty sure " that Cannon and Kruse were also present.
While there is some testimony to the contrary , the undersigned is convinced from Miessner's
testimony , the role which Cannon and Kruse had played throughout as leaders , and what
transpired at the meeting of June 10, that Cannon and Kruse were present for the purpose
of presenting the newly-elected officers of the Association to the officials of the respondent.
D'UNCAN FOUNDRY AND MACTUNE WORKS, INC. 625
applicant. At least part of this activity took place at the plant during working
hours S0
On June 17, a meeting of the officers and representatives was held. The
minutes show that "changing of the agreement" was taken up as new business.
Several enumerated changes were decided upon and it was decided not to accept
it "until signed & then posted on the board for the men to read" The agree-
ment was to be rewritten and presented to the management.3' One representa-
tive stated that the employees wanted another mass meeting, but no definite deci-
sion was made on the matter. The fact that the employees wanted pay on
every other Friday was taken up as a "grievance" and a committee which had
taken the matter up with the management reported that "the payment of
wages was set by the government." It was decided that dues would be col-
lected the first working day after each pay day and that reports would be
posted on the bulletin boards "at the end of each month so as to let the men
know what is happening."
The next meeting of the Association was held on June 24, 1937. The meeting
was attended by the officers and representatives and by Juttemeyer. The min-
utes of this meeting follow :
The meeting was held at the home of George Horstman at 7: 00 P. M.
Mr. Juttemeyer, the managements representative was invited to attend and
he brought along some interesting articles. The meeting was turned over
to Mr. Juttenieyer whose subject centered around a better relationship or
understanding between the Management and the Association. Some of the
points that were made clear were as follows : _
The condition of the company at different times. He gave some inter-
esting figures taken from the books which showed that everyone was being
treated the best that was possible under the circumstances at this time. He
explained the different times that things were done for the employees that
would usually not be done, liut it was for the benefit of employees that it
was done. He also gave the committee a better understanding on the ques-
tion of who was eligible for membership in the organization. Mr. Jutte-
meyer said he would give his service at any time that we wanted him.
A motion was made and seconded that Mr. Juttemeyer, the Companies (sic)
representative preside at every third' Thur. of each mo. At this meeting
points of discussion which came up between the Co. and the Association
would be thrashed out., The next meeting will be held at the home of
George Horstman at 7: 00 P. M., July 1, 1937.
Concerning the above meeting, Juttemeyer testified that he gave "a little
talk" in Horstman's back yard on the respondent's "business and future pros-
pects"; that- it was an informal meeting with no business transacted;, that he
did not recall explaining what was being done for employees' benefit but that he
might have given production figures and new products to show how they were
trying to develop business; that he had a "faint recollection" of stating "who
could not belong to those organizations" ; that he did not recall any motion as
to his presiding at a meeting each month ; and that he was at the meeting only
"These findings are based upon the testimony of Horstman, Miessner, and Schmidt.
81 The minutes do not show where the agreement tinder discussion had originated. Nor
is it clear from the changes proposed that the agreement being used uuas the agreement
previously submitted to the respondent, since certain matters referred to in the minutes
of June 27 do not appear in either the proposed•or the revised agreements discussed above,
while other matters do. It is not clear-from the record when such a rewritten agreement
was presented or by whom it was presented, if, in fact, it was presented. In any event, if
presented it was not signed.
626 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
I
15 or 20 minutes, leaving for another meeting at 7: 30. Secretary Miessner
identified the minutes as the ones he had kept and testified that Juttemeyer had
a book concerning articles which the respondent would not be manufacturing
except "to keep the men at work" ; that Juttemeyer stated that the "men on
the monthly payroll were not eligible to belong" ; that subsequent meetings were
not held with Juttemeyer present; and* that while the meeting lasted 2 hours,
Juttemeyer was there only 20 or 25 minutes. Horstman testified that the
"better understanding" that Juttemeyer gave as to eligibility pertained to the
ineligibility of those on the monthly pay roll and that otherwise, except for
matters described in the second and third sentences of paragraph 2 of the min-
utes which he could not remember, the minutes accurately reflected what took
place. He also testified that'Juttemeyer did not stay for the business meeting.
Schmidt, the Association's president at the time of the meeting, testified that
Juttemeyer talked only about the condition 'of work throughout the country
which was "pretty slack at that time," and that the "business and discussion"
which followed did not "last very long."
Whatever-business or discussion may have taken place after Juttemeyer left,
it was not considered of sufficient importance to set forth in the minutes of
the meeting. Assuming that the "better understanding" which Juttemeyer gave
on the question of eligibility was that described by Miessner and Horstman,
it is evident that Juttemeyer expounded the respondent's position on member-
ship requirements. Nor does failure to carry out the plan for Juttemeyer to
preside at a meeting, once a month alter the significance of the fact that the
action was taken. Further, the role which Juttemeyer took at the meeting was
characteristic of that which he had played for over 3 years in the meetings of
the E R. P. On all of the evidence, the undersigned finds that the meeting of
June 24 took place substantially as set out in the above minutes.
On August 24, 1937, the officers and representatives of the Association held a
meeting at which "rules and bylaws were read and approved by every member
of the committee." Plans were also discussed for a mass meeting which was
never held because a fire destroyed a substantial part of the respondent's plant
on the night of August 25. Although never adopted by the members, the Asso-
ciation 'operated for about 2 years under the bylaws approved by the officers
and representatives on August 24. In many respects those bylaws were like
the bylaws of the E. R. P. Much of the wording was identical. The caption,
except for the position of an apostrophe, was identical and read :
EMPI.oYEE's REPRESENTATION PLAN
DUNCAN FOUNDRY & MACHINE WORKS, INC.,
The Preamble stated that the officers of the Association; established with the
respondent a plan of employee representation "to provide effective communica-
tion and means of contract between management and employees of the Company
on matters pertaining to industrial relations, and to promote justice, maintain
peace and harmony, and to work for the common good and welfare of both the
employees and the Company." The language quoted is identical with that found
in the,preamble of the E. R. P.
Like the E. R. P.'s bylaws, the Association's bylaws provided for changing
election divisions upon "agreement between the Employee's Representation
Committee and the Company President" or his representatives' However, the
38This provision,was never used although most of the divisions were not operating for
some years after the fire. However , representatives were not elected from those divisions.
1
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 627
seven divisions set up at the meeting of June 4 replaced the three divisions under
the E. R. P. A one-year term for all representatives was provided, but seniority
in the respondent's employ was controlling in case of a tie vote39 As under ,
the E. R. P., a representative vacated his office upon termination of his employ-
ment with the respondent, transfer to another division, or appointment to a
position making him ineligible to vote Persons ineligible to vote were company
officials, technical men, and persons regularly holding "purely" supervisory
positions. Clerks were not excluded as they had been under the E R. P. It was
provided that all employees on the pay roll, except the above excluded employees,
were eligible to vote.90 Persons who had been "in the Association" for one
year prior to nomination, were American Citizens, and were over 21, were
qualified for election as representatives.
The bylaws further provided that dues were payable the first of each month,
but the amount was not specified. Annual elections by secret ballot were
provided, , but no provision for meetings of the membership was made. The
only provision as to meetings was one that the "Association Committee" should
meet regularly once a month 'No provision was made for amending the bylaws
The most significant difference between the bylaws of the Association and the
E. R. P. was the elimination in' the Association bylaws of all reference to man-
agement representatives and to any procedure for adjusting grievances. How-
ever the proposed agreement, submitted to Duncan during the spring of 1937
and later entered into in 1939 in substantially the same form, constituted in
major part a procedure for "dealing with questions at issue." That procedure
included a joint conference composed of six representatives of the Association
and an equal or less number selected by the respondent. When viewed in
connection with the agreement, which was evidently still under consideration
in some form, the Association's bylaws, except for such modifications as were
voted at the mass meeting on June 4, constituted substantially a continuation
of the purposes, structure, and procedure of the E. R. P.
After the fire of August 25, 1937, the Association was relatively inactive for
almost 2 years While a few informal meetings were held from time to time
at the homes of officers and representatives, minutes were kept of no meetings
during the period from August 1937 to May 1939 except for the three meetings
in June 1938 discussed below. Whereas previous to the fire the respondent had
about 200 employees, during the above period the average employment was only
about 30" Most of those were employed in the lower shop which had not
burned.' This building included the machine shop and the construction shop,
or Divisions 4 and 5 under the Association's bylaws. The pattern shop, Divi-
sion 3, which was also in a separate building, had not burned. George Horst-
man, the representative of the pattern shop, continued his employment during
this period without interruption.', During the period following the fire, Horst-
man was the only employee in the pattern shop and was in charge of the pat-
terns, and it was Horstman who was the most active individual in keeping the
"Such a tie in the vote for the vice-presidency in the election of'June 1938 was deter-
mined on the basis of seniority in accordance with this provision.
40 The bylaws provided also that applicants for membership, who were favorably passed
on by the executive committee would be issued membership cards' entitling them to "any
and all privileges" as long as dues were paid promptly. However, the bylaws do not make
clear the differences between the privileges of employees as such and members of the
Association
11 Average employment figures set forth herein are taken from figures furnished by the
respondent and exclude officials , supervisors , and office employees
The foundry which had burned included all of the 'divisions except those in'the lower
shop and the pattern shop
'a The Association 's president, Schmidt, was laid off for several months after the fire.
t
628 DECISIONS OF NAT'IO2VAL LABOR RELATIONS BOARD,
Association alive and in reviving it in 1939,-at which time he became its presi-
dent. While he did not go on the monthly pay roll as the foreman of the pattern
shop until the spring of 1941," about the time the rebuilt foundry resumed
operations, during the years of 1937, 1938, and 1939, Horstman was one of three
employees of the respondent who received a Christmas bonus of $100 each year.
The other two employees were William Wohlert, the foreman in charge of ship-
ping and of the labor gang, and Luther Show, a machinist who later became
foreman of the machine shop. From the foregoing, it is evident and the under-
signed finds that Horstman, while not carrying the title of foreman, occupied
a position of responsibility from 1937 to 1941 substantially more closely related
to management than that occupied by ordinary hourly paid employees.
On June 3, 1938 , the "officers got together " to set a time and place for a
mass meeting. The secretary was instructed to post a notice of the meeting
on the bulletin board. On June 8, the day before the mass meeting, some of the
officers and representatives of the Association met with the respondent. While
there is testimony that this meeting was between the Association and the
management to negotiate on certain matters, the minutes themselves reflect the
dominant role played by Juttemeyer, a role in keeping with that which he had
previously played under the E. R. P. The first half of the minutes is presented
in full below and the undersigned finds that the meeting proceeded as set forth
therein :
The meeting was turned over to the companys representative Mr. J. E.
Juttemeyer. Mr. Juttemeyer introduced the representatives of the organ-
ization. Mr. Juttemeyer complemented (sic) the new organization. The
employee will report to the company A group of rules will be posted on
the board. An employee will report by phone if he will not be at work.
Some men lay off a day after pay day, this- will not be put up with. Every
man will report every day after pay day. The rules will be understood by
everyone. A grievance was taken up its to having a suggestion box The
management thought it would be a good thing by having a suggestion box.
The suggestion box will be put back in the shop. The grievance of pay
was taken up and explained by Mr. Juttemeyer, and business is not good so
pay cannot be increased. The foremen were told to lay off the last man
first unless he is an exception. A man who wants more money will go to
the foreman instead of the representative . If a man asks the foreman
for an increase in pay, and he is promised an increase but nothing is done
about it, the man can go to the representative. Old men will be given con-
sideration.
The question of safety was taken up and permission was given to the as-
sociation to call the attention of accidents. Accidents are too frequent.
In a similar vein, the second half of the minutes set out the announcement of a
plan for vacations with pay, provision being made for 3 days' vacation at the
hourly rate for men with 3 years' service and for a week's vacation for men
having more than 5 years of service.'
On June 9, a mass meeting was held, the principal business of which was the
annual election of officers. Schmidt was reelected president and Miessner was
reelected secretary. Luther Show and George Horstman, each of whom had
44 At that time Horstman resigned from the Association
45 It should be noted that the requirement that a man go to his foreman before going
to his representative about a pay increase reversed the motion adopted at the meeting of
June 4 , 1937, and returned to the basis of operations provided under the E R. P. In a
similar way, the stress on accidents is reminiscent of the E It P. It should also be noted
that a similar proposal for vacations with pay was made by a' representative under the
E. R. P. in April 1937.
D`UNCAN FOUNDRY AND MAC11IkF, WORKS, INC. '6 9
received a $100 Christmas bonus, tied for vice president and Show was declared
selected because of his seniority with the respondent . Rudolph Fischer was
elected the representative from the construction shop. Stephen Show, was
elected representative from the machine shop.
After the election of June 1938, the next meeting of which any minutes were
kept was a meeting of the "officers" on May 17, 1939, at which time the "business,
of making a pay-roll deduction slip, was taken up and completed." The time and
place for the annual election also was set.
On June 9, 1939, the election was held at Turner Hall. President Schmidt
presided until his-successor, George Horstman, was elected president. He there-
upon presided while the other elections were conducted. Lloyd Henry was
elected vice-president aridJMiessner was elected secretary and treasurer. Repre-
sentatives were then selected from the construction shop, the machine shop, and
the Labor & Maintenance Department, the former term "Bull Gang" being changed
at that meeting to read "Labor." '6 Representatives were not elected from other
departments which were not then in operation. Following the election, the min-
utes show•that it was staffed that it had been learned :
that 5 things were essential in having an association, they are as follows : (1)
Dues must be collected. (2) Association must be recognized by the company.
(3) Association must hold monthly meetings. (4) Must have contact with
another Union. (5) Association must have a' signed agreement with the
company.
Thereafter the wage assignment cards were explained and approved by majority
vote. These cards provided for the deduction of Association dues at a rate not to'
exceed 25 cents per month, the deductions to be made in advance for a 4-month
period 3 times during the year and the first such deduction to be made on June 15,
1939. The card contained on its face a statement that the deduction could be
discontinued at any time by requesting its discontinuance in writing. Among
other motions approved at the meeting were that the secretary's salary be based
upon a percentage of the funds collected ; that dues be refunded in case of "dis-
missal" from the Association ; that the back salary of the secretary for 1938 be
paid ; and that the "bylaws and constitution" be printed in book form and given
to the members, "a limited amount of 300 copies to be printed." 97
During June and July, 1939, the transition from the E R. P. to the Association,
which had started in the spring of 1937, was carried forward rapidly. The
above-discussed dues deduction cards and a new and more elaborate application
card providing for a $1 initiation fee were printed and circulated throughout
the plant during working hours.' By June 15, 1939, the Association had secured
and turned over to the respondent 40 authorizations for the deduction of dues.
This evidently constituted cards from almost all of the persons then employed.'D
Sometime after the election of June 9, President Horstman and a committee
18 The fact that the bylaws adopted by the officers in August 1937 were still being used
is shown by the fact that on the face of that document the term "Bull Gang" has been
scratched out and the term "Labor" substituted in longhand.
47 On July 1, 1939, the respondent had only 43 employees. However, as the foundry
rebuilding progressed, employment rose until there were 85 employees on July 1, 1940.
This further increased, especially after the foundry started operations in the spring of
1941, so that by July 1, 1941, employment was 184. It was not until 1942 that employ-
ment reached 300, however, being 354 on July 1, 1942.
491lorstman testified that he took care of the upper shop which was then being rebult
and that the representatives took care of the lower shop. It should be noted that a third
card, a card certifying membership in the Association, without any space on the back for
dues entries, was printed and circulated in accordance with instructions at a meeting on
July 28 that 300 such cards be printed
4b There were 37 employees on June 1, and 43 on July 1.
5361055-44-vol. 50-41
630 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
,from de Association met with President Duncan and Juttemeyer. The As-
sociation presented a contract and stated that it represented about 95 percent
of the employees. The respondent requested no proof of representation in
addition to the 40 wage deduction cards then in its possession. Thereafter the
contract was signed on July 24, 1939, by William Duncan for the respondent
and by Horstman, Henry, and Miessner, president, vice president, and secretary,
respectively, for the Association. The two-page contract of 1939 was identical
in wording and arrangement with the "corrected" contract of 1937, discussed
above, except for two minor revisions in the section on procedure for "dealing
with questions at issue," a change in the clause relative to strikes and lock-
outs, the date, and the name of the contracting labog organization. Whereas
the provision against strikes and lock-outs in the 1937 contract operated only
pending the outcome of the adjustment of any grievance, in the 1939 agreement
it operated during the life thereof. The-1939 agreement, like the "corrected"
agreement of 1937, contained no provisions as to such matters as wages, hours,
overtime, holidays, or vacations. The agreement provided for the recognition
of the Association as the sole bargaining agent. The respondent's "policies"
as to seniority were recognized. "Employee representatives" were to be paid
their regular rates while conferring with management The agreement, "when
ratified by the Association and the Company", was to be in force for one year
and thereafter from year to year unless terminated by either party on 30 days'
written notice.'p
The central feature of the 1939 agreement, as was true of both the proposed
and the "corrected" agreements' of 1937, was an adjustment 'procedure which
progressed step by step. At the first stage, the employee referred the matter
to his representative who took it up with the department head. If this did
not result in adjustment, the matter went to a joint conference consising of
six representatives of the Association and an equal or lesser number of rep-
resentatives of the respondent. The conference was empowered to arrange its
own procedure; conduct regular meetings at least once a month and also special
meetings; to have two secretaries, one for the Association and one for the re-
spondent, who were to keep records of the proceedings;" to appoint sub-com-
mittees for study of questions requiring joint investigations; to endeavor to
settle questions; to draw, up and submit for, signature agreements covering any
'questions satisfactorily settled : 62 and to refer in writing questions which could
not be settled to the respondent's president for his consideration." If the`
question was not satisfactorily settled by the respondent's president, the mat-
ter could be referred upon the request' of either party to a commissioner of
conciliation of the United States Department of Labor whose decision was to
be accepted 69
The testimony is not clear as to how the above agreement was drawn up and
is'vague as to what negotiations took place in relation to it. There is testi-
mony that the agreement was approved at a mass meeting prior to its execu-
tion but there is no evidence of any such submission in the minutes. The only
"No notice of modification has ever been given nor have any amendments been made to
the agreement. The agreement of July 1939 has continued in effect since entered into, and
no other written agreements have been entered into between the respondent and the
Association.
n No such records were produced at the hearing.
°a There is no evidence that any such agreements were drawn up and submitted for signa-
ture by the Association and the respondent.
53 There is no evidence that any such matter was referred in writing to the respondent's
president:
11 No such reference has been made.
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 631
reference during this period to any specific agreement' in the Association's
minutes is that contained in the minutes of the meeting on July 28, 1939, 4 days
after the agreement was signed. Those,minutes contained the following entry :
The motion was made and seconded that the agreement be read aloud, same
was read by president Mr. Horstman. -
There is also testimony that the agreement was ratified at a mass meeting but
the above excerpt from the minutes does not so indicate. From the completeness
of the minutes which Secretary Miessner kept," the undersigned is convinced
that the minutes would not have omitted specific reference to any action so sig-
nificant as formal approval of the agreement either before or after its execution.
From the fact that the 1939 agreement, except for a few modifications, was iden-
tical with the "corrected" agreement of 1937; the further fact that two of the
three officers signing the 1939 agreement, Horstman and Miessner, had respec-
tively been a representative and the secretary in 1937; the silence of the minutes
except for the above single entry ; and the record as a whole ; the undersigned
is convinced and finds that the "corrected" agreement of 19,37 was used as the
model for the agreement signed in 1939 and that the Association members were
confronted with an accomplished fact at the meeting of July 28 and, after the
agreement had been read, merely acquiesced 67 by failing to take any formal
action.
Under the date of July 24, 1939, the same day the agreement was signed, the
Association published its constitution. This constitution was substantially dif-
ferent in form and content from the bylaws adopted in August 1937. In explain-
ing the reason for drawing up a new constitution, Horstman testified that they
could not take another organization's constitution and that while they were not
forming a new organization or changing the organization's name, they drew up
a new constitution because they had not previously had a contract and the old
constitution did not have "a lot of things" it should have had. The first provision
of the now constitution under the heading "VII NOMINATIONS AND ELEC-
TIONS" read as follows :
A. The present six (6) elective members of the old "Employees Representation
Plan" who have been selected by agreement of a majority of the employees
will act as the Executive Board until an election can be held.
Concerning the above provision, Horstman testified that while he had partici-
pated in drawing up the constitution, he could not see any reason for that pro-
vision, but that he continued as president under the new constitution. Miessner
testified that his only explanation was that the constitution was printed in 1939
but drawn up in 1937, and that at the time it had been drawn up they had several
plans, such as those at Standard Oil, Western Cartridge, and Alton Boxboard
and that they had "lifted bodily" from those plans whatever "sounded good.'!
In connection with the above, it should be noted that there were six officers
elected on June•9, 1939, who continued to serve thereafter, and that the beading
on the bylaws adopted on August 24, 1937, was "EMPLOYEE'S REPRESENTA-
TION PLAN " However, because the date, June 1, 1937, appears in the constitu-
as
As is stated above, on June 9 the employees were told that a signed agreement was
one of the five things essential to an association.
60 For instance , almost a page of the minutes of the meeting of August 25, 1939, is de-
voted to a detailed record of the discussion of the problem of whether or not to serve beer
as a part of the refreshments at Association meetings.
sr An Association's witness , Show, testified that the men who were retained after the fire
thought they were "fortunate to be working."
58 In Section VIII, "TERM OF OFFICE," it is provided that the "term of the newly
elected Executive Board shall begin June 1, 1937."
I
,r ,
C
632 \ IlECISSONS OF NAPION'AL LABOR RELATIONS BOARD
tion, the undersigned is not convinced that the provision for continuing the six
employee representatives referred to those elected in 1939. Rather the under--
signed believes and finds that the constitution adoped in 1939, like,the contract
signed in 1939, was in fact a revision to, an undeterminable extent of a docu-
ment drawn up, in part at least, prior to, June 1, 1937. Furthermore, whatever
may have been the actual source of the 1939 constitution and the reason for its
being printed sometime during the summer of 1939, the minutes of the Associ-
ation show that the printing thereof was authorized.69
The printed constitution provided that employees of the respondent other than
those in a siApervisory or administrative capacity were eligible for membership.
The governing body was an executive board composed of members from each of
the same , seven divisions adopted on June 4, 1937, and set out in the bylaws of
August 1937. Membership meetings were to be held upon the call of the execu-
tive board. To be eligible for membership on the executive board an employee
was required to have at least 2 years' service with the respondent. One of the
purposes of the Association was to deal with the employer on wages, hours, and
other terms or conditions of employment, the executive board being responsible
for such negotiation. It was provided that agreements of general importance
negotiated by the executive board should be referred to the membership for
ratification or rejectiton by secret ballot. Monthly meetings of the executive
board were provided upon call of the chairman. The constitution could be
'amended by vote of two-thirds of the members voting and the Association could
be dissolved by a vote of two-thirds of the total membership. Dues were pro-
vided for at a rate not higher than 25 cents a month. Provision was made for
the recall of a member of the executive board upon petition by two-thirds of the
employees in his division.
0. The subsequent functioning of the Association and the advent of the Union
u bout March 1942
Since the printing of the constitution and the signing of the contract on July
24, 1939, the Association has been the sole bargaining agent of the respondent's
employees who have gradually increased in number from 43 in July 1939 to 390
In December 1942. During this period the Association had held monthly meet-
ings open to its members. It has also held annual elections in June of each
year. Dues have continued to be checked off upon ,the signature of the revokable
authorizations described above.80 Applications for membership in the Associa-
tion and dues deduction authorizations have continued to be solicited, upon
some occasions in the plant during working hours." Every four months the
respondent turns over to the Association a check for the total amount of
1
G° The mass meeting of June 9, 1939, authorized the printing of the "limited amount of
300 copies," and the meeting of August 25, 1939, also authorized the printing of the con-
stitution "in book form." However, there is no specific motion shown anywhere in the
minutes for the adoption of the constitution. Show, a witness called by the Association,
testified that the constitution was not ",voted on, it was just agreed upon."
' In October' 1942, representatives of'the Union presented a list of 97 men who desired
that no more deductions be made from their pay for Association dues. The respondent
refunded to each the dollar collected in advance and the .Association reimbursed the
respondent.
Si The undersigned does not believe, however, that Juttemeyer solicited signatures to such
cards but believes rather that the two witnesses who testified that he did were confusing
a fold-over-deduction card in the welfare Club, of which Juttemeyer was secretary and for
which he admitted securing signatures to wage deduction cards, with such cards of the
Association, which Juttemeyer denied ever having had in his possession until after they
had been turned in to him already signed. It should be noted that there has also been
some solicitation of membership in the plant during working hours 'by the Union since it
started organizing the respondent 's employees in the spring of 1942., - 1
I
DUN-CAN FOUNDRY AND MACHINE WORKS, INC. 633
dues deducted at the rate of $1 in advance for 4 months' periods. The Associa-
tion had paid for its meeting places all of which have been off of the respond-
ent's property. Bulletin boards at'the plant have been used by the Association
for announcing its meetings and posting notices.' In the summer of 1942, after
members of the Union started wearing their buttons in the plant on June 15;
buttons were-secured by the Association. Some of the buttons of both organi-
zations were passed out in the plant during working hours.
In keeping with the 1939 agreement, it has been the practice for the officers
and representatives of the Association to meet once a month,with the respond-
ent. Juttemeyer has been the respondent's representative at such meetings.'
These monthly joint meetings have been held in the old office room in the lower
shop and the representatives of the Association have been paid for their time
in attending such meetings. At these meetings, which President Henry ° opens,
grievances are presented by the representatives, the employees themselves not being
permitted to be present,. The respondent's representative records the nature of the
grievance, later investigates it, and discusses with the Association any action
to be taken. Beginning about July of 1942, at the request of President Duncan,
meetings have been held regularly twice each month instead of once. Con-
cerning the reason for this change, President Henry testified as follows:
A. The purpose ' was that a lot of things were hanging fire too long by
having a meeting once a month, too-much grumbling around there to hold
a meeting once a month, but holding it twice a month, you can get rid of
things quicker and it satisfies the men.
Q. Does that meeting have more grievances now than it did in the past?
A. I think so.
Q. For what reason?
A. The simple reason that the boys in the foundry don't cooperate with
the Independent Union. -
Q. In what manner?
,A. In all shapes and form, any manner you want to call it.
The actual grievance procedure in effect at the time'of the hearing, as described
by President Henry, required that the employees first take up the grievance
directly with his, foreman " If no satisfactory solution was reached, the em-
ployee could then go to his representative who then accompanied him in taking
the matter up with the foreman. If not satisfactorily settled at that stage, the
matter would be considered at a joint meeting of the type described above.
Provision was made for referring unsettled matters from the joint meeting to,.
President Duncan. The final step'in the procedure was arbitration.
While the Association has gained some benefits foi the respondent's employees,
its achievements on the whole have been meager. No contract covering' wages,
hours, and conditions of employment has ever been sought by the Association
While general 'wage increases have been granted at the joint conferences the
representatives of the Association have not made specific requests for definite
increases but have rather informed the management that the employees desired
wage increases and have thereafter consulted their constituents, division by
division, to determine if the employees were satisfied with the wage increases.
"'Bulletin boards are used without restriction by organizations and individuals in the
plant and upon one occasion in the fall of 1942 a document of the-Union was posted on one
of the bulletin boards.
18 During' about the last half of 1942, because Juttemeyer was ill, Ephriam Green and
William Wohlert have served as the respondent's, representatives.
04 Henry became president of the Association at the election in June 1940.
m This was a reversal to the procedure of the E. R. P. and not in accord with the
agreement.
I
634 D'ECTSIONS OF NATIONAL LABOR RELATIONS BOARD
proposed by the respondent. General increases were granted as of May 1, 1941,
October 1, 1941, and August 22, 1942. The first two increases were 5 cents an
hour.' The last ranged from 6 cents to about 12 cents an hour. The increase
of October 1,' 1941, was granted after it had been rumored during August of
1941 that an outside organization was trying to get into the plant." The increase
'in August 1942, the most substantial received, was granted only a few,months
after the Union started its organizational activities. Among the other benefits
secured by the Association was the adoption, in July 1942, of a change which
the Association had repeatedly sought since 1937, namely the institution of pay
day every two weeks rather than twice a month.
The role which the respondent conceived of the Association as playing is
revealed by the remarks which Juttemeyer made at the close of the first joint
meeting after the Association election of June 1941. As the meeting was break-
ing up, Juttemeyer told the three new representatives that he was glad to see
new faces because he "liked to see the men represented by different fellows" and
that it was their job to "keep the men satisfied" and settle grievances'" About
the- same time, when Elbert King, who started to work for the respondent in
June 1941, filled out his employment application in the respondent's office, Jutte-
meyer asked him if he was "affiliated with any organization or any Union." Ding
replied that he was not. - k -
During the latter part of February 1942, the Union started its organizational
campaign among the respondent's employees. From about March 1, three or-
ganizers were engaged in contacting employees of the respondent and of an-
other firm in Alton. The first of the respondent's employees to join the Union
were molders. Two employees signed up in March ; on April 1 six molders
signed up, one of whom was George Hethcote. After April 1, with the assist-
ance of the molders who had signed, the Union intensified its organizational
activities by contacting employees in all departments, securing additional mem-
bers, and mailing literature to all employees as names and addresses were secured.
About the last week in April, 1942, over a period of 3 or 4 days, Juttemeyer
made a series of seven talks to the respondent's employees.' The employees,
who were paid for their time' in attending the meetings, were divided into seven
groups so that the number in each group would be small enough to permit dis-
cussion. Juttemeyer's remarks varied somewhat from meeting to meeting. He
testified that the purpose of the talks was to aid production by finding out if the
men were satisfied with wages and working conditions ; that- he was "trying
as Two organizations, affiliated respectively with the A. F. of L. and the C. J 0. carried
on brief organizational activities in the fall of 1941. In August 1941, when activity by an
outsideorganization was first rumored, the Association decided to invite Superintendent
Duncan to speak at one of its meetings because the men "wanted to know what he thought
about an outside organization." Duncan declined by letter, stating that the respondent
did not want to interfere with the right of its employees to their free choice of repre-
sentatives.
, 87 The above finding is made upon testimony of George Hethcote; one of the three new
representatives, which testimony the undersigned credits.
w A score of witnesses testified as to various talks made in the plant by Juttemeyer dur-
ing the first part of 1942. There is considerable variation in the testimony as to what
wns said and as to'when the several talks were made. From an analysis of all this testi-
mony in the light of Juttemeyer's own description of the talks,` it is evident that Juttemeyer
also made a series of talks about the last of February when the employees were divided
into three groups. These earlier talks pertained to such matters as operating efficiency,
production for victory, the necessity for not discussing the plant's war production with
outsiders, the importance of guarding against sabotage, and the responsibility of citizens
to vote in the primary election. The February talks were made after the Navy Department
had ordered the respondent to have its employees fingerprinted and representatives of the
Federal Government had called for the fullest possible production. The undersigned is
convinced that Juttemeyer's talks in late February were not violative of the Act.
DUNCAN FOUNDRY ANTI) MACHINE WORKS, EN'C. 635
to develop the loyalty of the men to the plant and'to Mr. Duncan"; that at the
end of each talk he asked "each one if everything was all right with him" ; and
that because some of the men might have got the idea he was "mad about it"
because he had raised his voice in order to be heard, he told the men that he was
not mad or quarreling. with them. Among the subjects Juttemeyer testified he
discussed were Duncan's future plans for enlarging the plant ; how Duncan had
refused to consider moving the plant to Texas at the time rebuilding was being
contemplated ; the fairness of the respondent's wage scale in comparison with
other plants when over time pay was averaged in with the regular hourly rate;
the fact that Duncan could have sold the entire production of the respondent
to Timken Bearing Company and because of the simplicity of the production
could have reduced the number of employees to about 75; and the occasions
upon which employment had been provided in the, past for the men by making
products which were not needed and in some cases had to be remelted.
Most of the witnesses who testified about Juttemeyer's talks recalled matters like
the above, especially that the entire product could have been sold to Timken,
reducing employment to below 100, and that employees were asked individually
if they were satisfied. The undersigned finds that during all of his seven talks,
Juttemeyer made remarks substantially along the lines of his testimony set out
above and that in each of them the impression given was that Duncan was doing
"the very best" that he could for the employees and had "kept faith with the
boys, and why not keep faith with him." °B
Juttemeyer went further in some of his talks. In one talk, as testified by
William Simpson, Juttemeyer said that he had heard there was "a, lot of dissatis-
faction in the plant" and that he would do "anything he could to iron things out."
In some-of the talks, Juttemeyer used personal illustrations as to what had been
done for certain employees present. In at least one talk, as testified by Elbert
King, Juttemeyer asked "how many of the boys would stick with the company."
When Juttemeyer addressed the molders in the foundry office he specifically asked
George Hethcote why he was causing dissatisfaction in the plant. When Heth-
cote, one of the leaders in organizing the Union, asked what he meant, Juttemeyer
replied , "You know as well as I do". Juttemeyer also said to the molders
in the foundry office that outsiders were misleading the employees with promises
they could not keep.40
Juttemeyer testified that he had no knowledge of the organizational activities
of the Union when he made his talks the latter part of April. In view of the
nature of the talks, the time at which the Unions started organizing and the extent
of its activities, testimony of Foundry Superintendent Peeler, discussed below,
showing that organizational activities were reported from time to time to super-
visors of the respondent and Juttemeyer's questioning of Hethcote, the under-
signed finds that Juttemeyer was aware of the Union's organizational activities
and that the primary purpose of his talk late in April was to intensify loyalty
to the respondent and allay discontentment among the employees in order to
forestall further organization of the respondent's employees by the Union."
0° The quoted material is from the testimony of a witness called by the Association,
Ulysses Bowie.
70 The findings as to the talk in the foundry office are based upon testimony of Hethcote
which the undersigned credits. Juttemeyer's denials were not convincing.
73 It should be noted that the Association, so far as the record shows, never protested the
respondent's ignoring the Association and questioning the employees directly as to their
desires. .
636 DECISIONS OF NATtONPAII LABOR RELATIONS BOARD
D. Concluding findings with respect to the Association
It has been found above that the, respondent encouraged the formation and
continued existence of the E. R. P. and dominated and interfered with its admin-
istration., The E. R. P. was in operation about three and' a half years during
almost two years of which it was illegal under the Act. On April 15, 1937, three
days after the Act was -upheld by the Supreme Court, the respondent set up a
minimum wage scale and announced a general wage increase which had not then
been requested to a joint E R. P. meeting of supervisors and representatives.
Afterwards, about May 1937, the respondent informed the representatives that
the E. R. P. was illegal under,the Act and that something else would have to
be done. No disavowal of the E. R. P. was ever made to the employees. Not
only did the respondent fail to take formal action disestablishing the E. R. P.
but the representatives themselves took no such formal action. It cannot beheld
that the word of mouth discussions which took place in the plant or the opening
statement of Chairman Cannon at the meeting of June 4, 1937, constituted a
disestablishment of the E. R.' P. or freed the minds of the respondent's employees
from the pattern of domination which had clearly developed under the E. R. P.
Immediately after Juttemeyer's statement that the E. R. P. was illegal, the repre-
sentatives decided to meet at Chairman Cannon's home. At that meeting plans
were made for a mass ' meeting and bylaws and an agreement were discussed.
Later a proposed agreement was submitted to the respondent-and "corrected"
by,President Duncan, and a notice for the meeting was posted on the plant bulletin
board.
The mass meeting of June 4, 1937, was opened by Chairman Cannon and Secre-
tary Kruse was on the platform with him. This meeting was planned and called
by the leaders of the E. R. P. While the employees rejected the proposed contract ;
decided to form an independent association; selected the Association's present
name; elected new officers with the exception of one of the representatives; and
took several other actions set out above differentiating the Association's structure
from the E. R. P., the movement toward independence initiated at that meeting
was negated by "the developments which followed. Several of- the Association's
new officers had been present at the meeting at Cannon's home. Instead of holding
another mass meeting as provided at the end of the meeting on June 4, a "little
friendly meeting" of the officers of the E. R. P. and of the Association was held at
which time a letter of appreciation signed by both groups was drawn up to give
'to the respondent. The following day, June 10, that letter was presented to the
respondent and recognition was "gladly given" the Association with assurances
of the respondent's fullest cooperation. Shortly thereafter, on June 24, Juttemeyer
attended a meeting of the Association's' officers and representatives and made a
talk setting forth the respondent's position on several matters along lines estab-
lished under the E. R P. In this meeting he indicated that persons on the monthly
pay roll could not be members of the Association.
On August 24, 1937, bylaws were adopted by the officers and representatives.
Those bylaws were in many respects identical with those of the E. R. P., although
actions taken at the June 4 meeting were incorporated. They bore substantially
the same heading and preface as the bylaws of the E. R. P. The bylaws, like those
of the E. R. P., provided for no regular meetings of the membership, and continued
to retain a provision for changing election districts by agreement between the
'Association and the respondent. Also retained was the provision that a representa-
tive vacated his office upon termination of employment or transfer or promotion.
The Association operated under those bylaws for about 2 years, until a constitution
was printed under the date of July 24, 1939, which constitution, as has been found
above, was a revision, in part at least, of a document or documents drawn up prior
to June 1, 1937.
D'UNCAN FOUNDRY AND MA.CHINF' WORKS, INC. 637
From August 1937 to June 1939, because of the fire which destroyed part of the
,plant, the respondent's average employment dropped to about 30 and.the,Associa-'
tion was relatively inactive. However, during that period, a meeting was held in
'June 1938, the day before the annual election, at which Juttemeyer complimented,
the organization and set forth at some length and in a manner often shown by the
minutes of the E. R P. the respondent's position and intended action on several
matters. Vacations with pay, first asked under the E. R. P., were announced
then. During the period of relative inactivity, Horstman, who was in charge
of the pattern shop and was one of three employees receiving a hundred dollar
annual Christmas bonus, was the most active in keeping the organization alive
After almost a year without a formal meeting, the representatives at a meet-
ing in May 1£39 drew up a pay-roll deduction slip. This was later accepted by
the employees and signatures were secured in the plant during working hours,
as had been done with application cards in the summer of 1937 and as was also
done with application cards in the summer of 1939 and thereafter. This action
occurred at the time the respondent was just starting to expand its payroll, and
it is evident from the 300 copies of the deduction card and also the 300 copies of
the constitution later printed that a substantial increase in employment was ex-
pected, when the foundry was rebuilt and operations resumed. -
As of July 24, 1939, an agreement was signed between the respondent and the
officers of the Association and the Association's constitution was printed. While
the constitution differed sharply with that of the E. R. P. and the previous bylaws
of the Association, parts of it, at least, never became operative. The agreement
of 1939, identical in wording with the 1937 "corrected" agreement except for minor
variations set out above, provided for a joint conference of representatives of
the'Association and the respondent to handle matters in dispute. This procedure
'was in essence the same as the joint committee procedure under the E. R. P. In
operation, the role of Juttemeyer, the place and procedure of the joint meetings,
and the steps of the grievance procedure were the same as under the E. R. P.
Some benefits were obtained for the employees but the Association began to func-
tion more vigorously and to obtain more benefits after the Union entered the
picture. -
As the respondent's pay roll increased from about 40 at the time the agree-
ment was signed in 1939 to almost 400 at the time of the hearing, the new em-
ployees entered the respondent's employ to find an organization with sole bar-
gaining rights perpetuated by an agreement; a check-off system (but not a
closed shop) in operation ; and an organization which carried on solicitation on
company time and property and used the respondent's bulletin boards. Further-
more, after the Union started its organizational campaign in the spring of 1942,
Juttemeyer made a series of talks to the employees which could have left no
doubt in their minds that the respondent considered that loyalty and gratitude to
it-were incompatible with allegiance to the Union.
The transition from the E. R.' P. to the Association took place gradually over
a period of some 2 years. At no time was there a distinct cleavage between the
E. R. P. and the Association. While the respondent and the Association contend
that such a break took place about June 4, 1937, the developments shortly before
and after 'that meeting negated the tendency toward independence displayed
thereat. The evidence shows that the final stage of transition which took place
in the summer of 1939 involved more fundamental changes than had taken place
in June 1937. However, there is no contention that a new organization was
formed in 1939. Furthermore, the agreement which was signed in 1939 was sub-
stantially the same as the agreement drafted and-"corrected" in 1937 before the
June 4 meeting, and the constitution bearing the same date as the 1939 agreement,
also had its inception prior to the meeting of June 4, 1937.
C
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, when it became clear in the spring of 1937 that the E. R. P. was
illegal under the Act, the representatives, whose functions under the E. It. P.
made them the respondent's agents, took the initiative in laying plans to do
"something else." Those plans included the preparation of an agreement satis-
factory to the respondent and preliminary work on a constitution When the
employees at the first mass meeting ever held would not go along with the plans
which the representatives had made and took action in the direction of inde-
pendence, the employees themselves were sidetracked by abandoning mass
meetings . Instead, the old and new officers got together in a "little friendly meet-
ing" and joined in a letter of appreciation to the respondent. Recognition was
"gladly" given the Association. Juttemeyer's role of leadership was' resumed.
During about 2 years of relative inactivity following the fire, the Association
consisted of a small group of employees who felt "lucky" to have employment.
As employment started to increase in 1939, the agreement and the constitution
which had been held in abeyance were put into effect along with a check-off
system. Thereafter, in the absence of competition from any outside organization,
the respondent and the Association functioned through a joint conference and a
grievance procedure almost identical with that under the E. It. P. Upon the
,advent of the Union, increased benefits were given the employees through the
Association and Juttemeyer made a series of speeches to intensify their loyalty
to the respondent. '
From the total picture set out above of the transition from the E. R. P. to the
Association and from the similarity in the structure and functioning of the As-
sociation and the E. It. P., the undersigned finds that about June 1937, the re-
spondent assisted and encouraged the instigation and formation of the Associa-
tion as successor to and alter ego of the E R.P. and thereafter dominated and
interfered with the administration and encouraged and fostered the growth and
continued existence of the Association and that about July 24, 1939, the respondent
entered into an agreement granting exclusive bargaining rights to the Association
as a part of its plan of interference, said agreement therefore being invalid.
The undersigned further finds. that by such acts of domination and interference'
with respect to the Association and by according sole bargaining rights to the
Association and entering, into the agreement with it, the respondent has inter-
fered with, restrained' and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
E. The discharges, lay-offs, and transfers,
1. Chesley Melee
Chesley McKee, whose work was finishing roll-over moulds, was laid off from
June 2 to June 29, 1942. The respondent contends that McKee was' laid off as a
disciplinary measure because his failure to use core ties in certain moulds had
resulted in defective castings.
McKee was one of the group of moulders mentioned above who joined the
Union on April 1, 1942. Thereafter he discussed the Union with other' employees.
About-the middle of May, a fellow employee, Lee Adams, with whom McKee had
been discussing matters concerning their employment, told McKee that'Foundry
Superintendent Peeler'had'said that'he had heard they were trying to cause a
walk-out. Thereupon McKee went to Peeler and inquired about the story. Peeler
told McKee that'he had been informed he was trying to cause a walk-out, but
when asked to point out his 'informant, Peeler said to "let it drop." In
exp'aining the, incident,' Peeler testified that it had come to him "from two or
three different ones" that McKee was "agitating over there on the roll-over line,
trying to get the boys to walk out." Peeler testified that when Adams told
DUNCAN FOUNDRY AND MACHINE WORKS', INC. 639-
him of McKee's activities he said, "Adams, there is nothing I can do about if.
I can't go over and talk to a man about a Union activity or agitating, whatever
he is doing. The only thing I can do is if I get enough on him that he is doing
something like that I might be able to punish him for it, but for me going over
and asking a man something like that, I do not want to do it."
' , Two or three days before his lay-off on June 2, McKee and his helper, Robert
Gildersleeve, started making 28 moulds known as the Wilamet Hyster job. McKee
had made similar moulds before without using core ties,P2 but since there was a'
variation in the mould being made, McKee asked Peeler if core ties were neces-
sary. Peeler said core ties were not necessary. Later, Foreman Wocff saw
McKee making the moulds without core ties and asked McKee if Peeler had said
anything about using core ties. McKee replied that Peeler had told him that core
ties were not necessary. Wooff then checked with Peeler and was informed that
core ties were not necessary.Q3
When the castings made from the 28 moulds in which McKee had not used
core ties reached the cleaning room, the cleaning room foreman sent for Wooff
and showed him the castings. Woolf then called Peeler. Peeler looked at th e
castings and said, "We should have used core ties." Wooff then mentioned the
fact that Peeler had said core ties were not necessary. Peeler replied that McKee
"should have known better." On Monday evening, June 1,74 Peeler showed McKee
some of the defective castings. The following morning, McKee was told that he
was being laid off for 30 days because he had made defective moulds. He was
called back about 5 days before the end of that period.
The foregoing facts do not support the respondent's contention as to McKee's
lay-off. McKee was among the group of moulders who were the first of the
,respondent's employees to join the Union. The first mass meeting of the Union
which was well attended was held just a few days before McKee's lay-off. About
2 weeks before his lay-off, Peeler, on his own testimony, had information from
two or three men that McKee was "agitating." It was on Peeler's own instruc-
tions that McKee had failed to use core ties in the Wilamet Hyster job. What-
ever the damage to the 28 castings may have been, from the circumstances sur-
rounding McKee's lay-off, the undersigned is convinced and finds that Peeler used
the damaged castings as a pretext "to punish" McKee and that McKee was
laid off not because of defective moulds but because of his affiliation with the
Union.
2. Charles Cairns
Charles Cairns, a burner who was learning welding, was informed by Jutte-
meyer on June 16, 1942, that his services were no longer needed. The respondent
contends that Cairns' position was declared vacated on June 12 because Cairns
had failed to report to work on June 2 and had thereafter given no explanation
of his' continued absence.'
On May 25, 1942 , Cairns injured 'himself pushing a pan of castings. His
foreman, Joe Manns, sent him to the Alton Clinic for examination 7s, At the
clinic, Cairns was' examined by Dr. Thomas Miller who told him that he did
not think he was ruptured but to return the next day. Cairns informed Fore-
man Manns who told him to go home until he swas "ready to come to work."
12 Cores ties or tie wires are used in some moulds to keep the center core from shifting
when the monlten metal is poured into the mold.
73 The above findings that Peeler said that core ties were not needed are made upon testi-
mony of McKee , Gildersleeve , and woof which the undersigned credits. Peeler testified
that he told McKee that core ties were necessary.
74 The first public meeting of the Union was held on Saturday , May 30.
76 All of the medical services used by the respondent are rendered by physicians asso-
ciated with the Alton Clinic.
J
'640 IYECISIONTS OF NATIONAL LABOR RELATIONS BOARD
Upon several occasions thereafter, Cairns returned to the clinic for subsequent
examinations . Swollen glands in the lower abdominal region made it difficult
for Dr. Miller to determine whether or hot Cairns had a hernia. However, on
the morning of June 2, still uncertain as to just what Cairns' difficulty was, Dr.
Miller told Cairns to go back to the plant and try working."
That same morning after his visit to the clinic, Cairns saw Juttemeyer and
Vernon Robertson, the general foreman of the cleaning room who was Foreman
Manns' immediate superior. Cairns gave Juttemeyer a slip from Dr. Miller
saying that he had been under Miller's care from May 25 to June 2. Cairns
also told Juttemeyer and Robertson that Dr. Miller had said that he should try
returning to work. Juttemeyer looked at the slip and said that 'it was not a
release. Cairns then complained of his sore foot and said that he wanted to
see his own doctor. Juttemeyer said that that was h,is privilege. Robertson
told Cairns that he could continue learning to weld, and Cairns said that he
would come in that afternoon at 3 o'clock.
'On June 2, following the above interview, Cairns visited his own doctor who
told him to keep off of his sore foot for awhile. Later that day, at Cairns'
request, Lewis Maynard, a neighbor of Cairns in suburban Brighton who was
also employed by the respondent, reported to Juttemeyer that Cairns would not
be able to work and was receiving treatment from his own doctor. The follow-
ing day, June 3, Maynard made a similar report to Robertson. Also on June 3,
Verne Price, another neighbor who was employed by the 'respondent, reported
to Robertson that Cairns' doctor in Brighton did not want him to return until
-his foot got better. About Friday, June 12, Robertson asked Price how Cairns
was. The following day, after seeing Cairns at his home, Price reported to
Robertson that Cairns was recovering and would be back about Tuesday or
Wellnesday of the following week."
On Sunday, June 14, the Union held a meeting at which temporary officers
were elected . Cairns was elected temporary president. At that meeting, it
was also decided that the following day dues buttons would be worn into the
plant. Accordingly on Monday , June 15, some 67 employees of the various
shifts " wore their dues buttons Into the plant. These buttons bore the
Initials "C : I. 0." and the name of the Union, and showed dues paid for
June 1942.
About 2 o 'clock Tuesday afternoon , July 16,, after being told by his doctor
that he could return to work, Cairns returned to the plant wearing his button
showing dues paid to the Union. Cairns went to the foundry office, as was the
practice , and presented a slip from his doctor to Ephriam Green , the chief
'foundry , clerk.', Green telephoned Juttemeyer and then told Cairns that he
would have to see Juttemeyer . Juttemeyer met Cairns on the tracks between
"The evidence is in conflict as to how the Interview ended. Dr. Miller testified that he,
told Cairns to go to his -own doctor for treatment of the swollen glands. On the other hand,
Cairns testified that he asked Dr. Miller to look at a sore foot which he had burned about
2 weeks before but that Dr. Miller did not offer to look at it. Whichever version be ac-
' eepted , there was at least one complication about which Cairns presumably would see his
own physician.
. 7'' The findings that Maynard and Price reported Cairns' condition to Juttemeyer and
Robertson are made upon the testimony of Cairns , Maynard and Price which the under-
signed credits . While Juttemeyer and Robertson both denied receiving any report that
Cairns was getting medical treatment , Foreman Manus testified that 2 weeks after Cairns'
injury, which would be about June 8, General Foreman Robertson told him that Cairns had
not yet returned because "he had a burn on his foot and was doctoring with his own doctor
in Brighton." '
78At that time the respondent employed about 350 men.
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 641
the office and the foundry and Cairns gave him the doctor's statement 79 Jutte-
meyer looked at the doctor's statement and said that it was no longer necessary
,and that Cairns' services were no longer required.
The following day, June 17, Cairns received a letter postmarked "Alton, Ill.,
June 16, 5: 30 P. M." which contained a carbon copy of an unemployment com-
pensation form. The form bore as the date of filing, June 12, 1942, was signed
by Juttemeyer, and had ' a check opposite the phrase, "Absent-4 days or more
(reason unknown)." Under the heading "Explanation" the slip read:
This man was to report for work on June 2nd but never came in. Job de-
clared vacated.
The respondent contends that Cairns' position was declared vacated on June
12 before' it had any knowledge that Cairns belonged to the Union. As to this,
the respondent points to the unemployment compensation form which it filled
out and which bore the date June 12. However, the respondent gave no reason
why it selected June 12 as the date of the discharge. The respondent knew
that Cairns planned to return on the afternoon of June 2 to try working,
although he had not been released by the clinic doctor; it also knew that Cairns
was planning to see his own'doctor. Later, on June 2 and also on June 3, the
respondent received word from Cairns through two fellow employees that he had
not come in because he was receiving treatment from his own physician. Fore-
man Manns testified that on about June 8 General Foreman Robertson told,
him that Cairns had not returned because "he had a burn on his foot and was
doctoring with his own doctor in Brighton." As late as June 12, Robertson
made inquiry regarding Cairns condition from Price-and was informed the next
day that Cairns was recovering and would be back about Tuesday or Wednes-
day of the following week. The respondent's practice, as testified by Juttemeyer,
was that if an employee reported that "he was off either due to illness or injury,
that would be sufficient to excuse him." Further, as is shown in the case of
Charles Roades, hereinafter set out, the respondent investigated, employee
absences where doubt existed as to the reason, even to the extent of visiting
employees' homes.
There is further evidence detracting from the respondent's contention that It
discharged Cairns on June 12. Although the unemployment compensation form
bore that date, the postmark on the envelope containing that form showed clearly
that Cairns' copy was not mailed until some three hours after Cairns attempted
to return to work on the afternoon of June 16. Also a letter from Dr.-Miller
which the respondent requested to complete its personnel file on Cairns was
written on' June 16 8° Further, no evidence was submitted that there was any,
need for haste in filling Cairns' position since he was learning to weld and Fore-
man Manns estimated that his position was not filled until about a month after
Cairns was injured, which would be about June 25. While no motive for dis-
charging Cairns on June 12 appears, there was a reason for taking such action
on June 16 Cairns had been elected temporary president of the Union on June
14, on June 15 some 67 employees had come into the plant wearing union, buttons,
and on June 16, when Cairns reported for work, he also wore a union button.
From the foregoing, the undersigned rejects the respondent's contention that
"That statement was returned to Cairns and he testified that he had lost it. On the
other hand, Juttemeyer testified that he could not find any slip which Cairns had given him
on June 2, although it is evident from his testimony that Cairns did give him such a slip.
80 Juttemeyer testified that he requested the letter about June 12 to show the medical
disposition of Cairns' case. The letter stated that Cairns had been advised to return to
work on June 2 and since that date had not reported for further treatment.
k
1
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it discharged Cairns on June 12 before it had any knowledge of his union affilia-
tion, and find that the respondent discharged Cairns on June 16, 1942, because
of his affiliation with the Union, using his absence from work as a pretext for
its action. -
3. The squeezer molders, Paul Phelps, Joseph Wooff, 'Hubert Phelps, William
Simpson, Jerry Davis, and Melvin Hamby
Paul Phelps, Joseph Wooff, Hubert Phelps, William Simpson, Jerry Davis, and
Melvin Hamby were all squeezer molders. Each received a lay-off of one day
during the period from Wednesday, June 17, to Saturday, June 20, 194281 The
respondent contends that they were laid off because the floor was blocked up due
to a furnace shut-down on June 14 and that some of them were given an oppor-
tunity to make up the time lost by working on succeeding Sundays.
As happened periodically, the furnace was down for cleaning and repair part
of Sunday, June 14, only about half of the usual heats being poured that day.
Upon occasions, when the furnace was-down the floor became blocked up tem-
porarily and the employees were sent home as a group. The respondent con-
tends that such a blocking occurred because of the half day shut-down Sunday,
June 14. Such group lay-offs were usually of only short duration as resumption
of normal furnace operation quickly relieved any congestion of the floor due to
the accumulation of unpoured molds. The shut-down of Sunday, June 14, was
for only a half day and the furnace operated normally the rest of -that week.
On Monday, June 15, the six squeezer molders on the first shift all worked their
usual 8 hours;'the four squeezer molders on the second shift worked 6 hours
each, while on the third shift the three squeezer molders worked, respectively,
6, 31/2 and 31/ hours. On Tuesday, June 16, all of the squeezer molders worked
their usual full 8 hours.
During the-day, Tuesday, June 16, the above named six squeezer molders were
each informed that they would be held to 40 hours that week and would have
to take 1 day off. George Class, first shift foreman, laid off Paul Phelps, Hubert
Phelps, and Joseph Wooff, and told them that they were being laid off on Peeler's
orders. The foreman of the second shift, Hethcote, laid off William Simpson,
Jerry Davis, and Melvin Hamby, who were under his supervision, permitting
them to choose their day off on the basis of their seniority.
On Monday, June 15, some 67 employees had worn dues buttons into the plant.
It was the molders who had first joined the Union and each of the above six
squeezer molders was wearing a union dues button when given his lay-off. Fore-
man George Hethcote, who was a member of the Union, testified that he had laid
off the men under his supervision who were wearing union dues buttons pur-
'suant to instructions from General Foreman Grieves, who had informed him that
all of the men wearing union buttons were to be held to 40 hours that week.`
Hethcote further testified that shortly thereafter, when Association buttons were
worn in the plant, he asked Grieves about employees wearing Association buttons
and was instructed that the men wearing those buttons were to get regular time 87
Grieves' memory of the lay-offs was vague and his denial of IIethcote's testimony
was unconvincing. Hethcote was a credible witness. His testimony as to how
81 Paul Phelps and Hamby were laid off Wednesday, June 17. Hubert Phelps was laid
off June 18. Wooff and Simpson were laid off June 19, and Davis June 20.
ea All time over 40 hours was paid at premium overtime rates.
The regular week was 8 hours a day from Monday through Saturday or a total of 48'
hours. The time cards of the respondent showed that only the above six men who wore,
union buttons failed to receive full time.
I
DUNCAN FOUNDRY AND MACHINE WORKS, INC. 643
and why the lay-offs were made was corroborated by that of other witnesses 8; .
and is accepted by the undersigned.
The respondent's time cards show that during the 4-day period from Wednesday,
June 17, to Saturday, June 20, within which time the above named six squeezer
molders each received a 1 day lay-off, there were 12 employees working who were
regularly employed as squeezer molders ' Of those 12, only the above named six
molders received 1 day lay-offs. Each of the other six squeezer molders worked
at least 8 hours each of the 4 days from Wednesday, June 17, to Saturday, June
20.80 On all of the evidence, the undersigned finds that, with one probable excep-
tion," the six squeezer molders who did not get lay-offs during the period under
discussion were not wearing union buttons.
The respondent sought to explain the fact that the six squeezer molders
wearing buttons were laid off while other squeezer molders worked without
lay-offs on the basis of the high priority ratings carried, by the work being
done by those who were not laid off. Yet it had been the practice of the re-
spondent to send all squeezer molders home together when the floor became
blocked. Further, Peeler admitted that practically all of the work then being
done by the respondent carried high priority ratings. The respondent's work
was all war work. Peeler also testified that he had given instructions that
everybody was to be held to 40 hours during that week, and he was unable
to explain why his instructions had not been carried out. On the whole, the
respondent's explanations of the variation in the amount of work given the
squeezer molders from June 17 to June 20, as evidenced by the time cards, was
not convincing.
From all of the evidence the undersigned is convinced that Foreman Heth-
cote's testimony above noted is the. only explanation in the record of the lay-
offs of the squeezer molders which squares with all of the facts. Accordingly
the undersigned finds that those lay-offs were made not for the reasons ad-
vanced by the respondent but in order to discourage adherence to the Union.
The undersigned further finds that the respondent laid off Paul Phelps,
Joseph Wooff, Hubert Phelps, William Simpson, Jerry Davis, and Melvin Hamby
for 1 day each during the period from Wednesday, June 17, to Saturday, June
20, 1942, because of their affiliation with the Union. The undersigned further
finds that the fact that some of them were later given an opportunity to make
up the time lost by working on succeeding Sundays does not dissipate the
unfair labor practice.
4. The roll-over molders, Tony Forbes and Clyde Forbes
Tony Forbes and Clyde Forbes, both roll-over molders, worked only a few
hours during the first half of the week beginning June 15, 1942. The respond-'
8+ For instance, Jerry Davis, who was laid off by Hethcote, testified that he was given his
first choice of a day off because of his seniority and was told, "My orders is every man who
has one of those buttons on gets one day a week off " Also Paul Phelps testified that when,
lie asked Hethcote about the lay-off, Hethcote informed him that Grieves had said that the
union men were to get 40 hours work.
83 This figure does not include Philip Foley who was laid off for most of that period for
reasons discussed below. Nor does it include Joseph Wallace, listed as a special molder,
who worked during some of that period as a squeezer molder. While the respondent's time
cards show that Wallace worked 8, 8, 4, and 8 hours, respectively, on June 17, 18, 19, and
20, it.is impossible to determine what part of that time was devoted to squeezer molding
and what part to other types of molding. In any event, Wallace, who was not a regular
squeezer molder, did some squeezer molding during the period of the Iay-offs.
e° On Saturday two of the molders worked 9% hours each
84 From Hethcote's testimony it appears probable that Vincent O'Shea was wearing a
union button at that time.
644 D'ECIS'IONS OF NATIONAL LABOR RELATIONS BOARD
ent contends that they were laid off because the floor was blocked up due to
the furnace shut down on June. 14.
Tony Forbes and Clyde Forbes were both members of the Union and wore
union, buttons on June 15., That day, shortly after they started working on
the second shift, Peeler came to Tony Forbes and mentioned that he was
wearing a union button. Tony Forbes pointed out that his brother, Clyde,
also was wearing one. 'The Forbeses then asked for some flasks to use ' in
making molds and Peeler told them that there would not be any flasks for
them,and that they could go home. Later that week when they had returned to
work, Peeler told the Forbeses that he had "got a little peeved" at them.""
The time cards show ,that the two Forbeses each worked 11/4 hours on Mon-
day, June 15, received 1 hour for reporting on June 16, worked 21/2 hours on
June 17, and 71/2 hours on June 18. On June 19 and 20, respectively, they
worked 8 and 81/_> hours each. Both refused to work Sunday-although asked
to do so. During the week from Monday, June 15, to Sunday, June, 21, each
worked a total of 283/4 hours. There were seven other roll-over molders work-
ing 'during that week. On Peeler's testimony, the undersigned finds that
Tony-and Clyde Forbes were the only roll-over molders known to him to be
wearing union buttons. In contrast with 28% hours the Forbeses received,
the seven other roll-over molders received, respectively, during that week,
including Sunday work for five of them, 48 hours, 55% hours, 571/2 hours, 50
hours, 551/2 hours, 441/2 hours, and 431/4 hours.
The respondent made no explanation as to why the two Forbeses received so
much less work than the other roll,-over molders. As has been shown above,
it was the respondent's practice to send all of the men home as a group when
the floor became blocked up in the foundry. In view of the fact that the
squeezer molders who were wearing union buttons, with one possible excep-
tion, were given lay-offs that week, the remark of Peeler to the two Forbeses
that he had "got a little peeved" at them, their disproportionately small
amount of work in comparison with the other roll-over molders, and the
surrounding circumstances in general, the undersigned finds that Tony and
Clyde Forbes were laid off during the first part of the week of June 15 not
because the floor was blocked up but because of their affiliation with the Union.
The unfair labor practice involved was not dissipated by the opportunity to
work which they were given the following Sunday, June 21.
5. The eranemen, Everett Culpin and Elbert King
Everett Culpin and Elbert King, who operated, respectively, a 3-ton crane
and a.10-ton crane on the second shift, each received during the week begin-
ning June 15 only 5 days of work instead of their customary 6.' King was
taken off of his 10-ton crane the first part of that week and put to work on
the shake-out and elsewhere at the same rate of pay. The following week both
Culpin and, King returned to their regular work as crane operators. The com-
plaint alleged that their lay-offs were discriminatory and that King's transfer
was a discriminatory transfer to less desirable work. The respondent con-
tends that the lay-offs were due to an attempt, which was abandoned because
sg The findings in the above paragraph are made upon the testimony of Tony and Clyde
Forbes, credible witnesses, whose testimony was in substantial agreement. While Peeler's
version differed in some respects, and he testified that the Forbeses were laid off because
the floor was blocked, he was not asked if he had stated that he had "got a little peeved."
sa This does not include one roll-over molder who worked only 1 hour on Monday, or the
special molder, Wallace, who worked 34 hours that week on various molds, as Is' set out
above. '
DUNCAN FOUNDRY AND MACHINE WORKS, INC. , 645
it proved impracticable; to reduce the number of cranemen on the second shift
from three to two,80 and that King was shifted to other work because of the
unsatisfactory way in which he had operated the 10-ton crane.
On Sunday, June 14, King was elected temporary financial-secretary of the
Union. Both King and Culpin wore their dues buttons into the plant when they
went to work on the second shift about 3 p. in., June 15. A few minutes after
he had started work, King, who had been operating the 10-ton crane for some
months, was called from his crane by General Foreman Grieves and told to
work on the shake-out as they were going to try using only two cranemen on
the second shift. King protested that three or four crane operators had been
hired after he had, and that they should be taken off cranes ahead of him.
Grieves said that he had his orders and King was to work on the shake-out 91
King appealed to Juttemeyer who said that the matter was completely up to-
Foundry Superintendent Peeler. When King later complained 'to Peeler, Peeler
said that King was being taken out of the 10-ton crane because Roy Chappell, head
of maintenance, had reported to the management that King "was tearing up the
crane " Thereafter King worked two or three days in the shake-out and then
cleaned up the sand mill. He received only 5 days of work that week.92
On the afternoon of Monday, June 15, after King had been taken off the 10-ton
crane, Culpin, who had never before operated that crane, was put on it by Grieves
who told him that they were going to use only two cranemen on the second shift.
Culpin got only 5 days of work that week also. During that week, two cranemen
could not keep up with the production. The first of the following week, King
and Culpin were returned to their regular work. When Grieves told them to
return to their regular work, Culpin asked what was the matter and if the "heat"
was off. Grieves replied that the heat was "off you guys."
The respondent's evidence concerning King's alleged inefficiency in operating
the 10-ton crane was not convincing.93 Further, that King was inefficient is
refuted both by the fact that he, was returned to the 10-ton crane after the week
of June 15 and also by the fact that sometime later, upon the respondent's request,
King was granted an occupational deferment as a crane operator by his draft
90 There were at least eight crane operators on the three cranes involved; three on the
that shift, three on the second, and two on the third. In the section of the foundry under
discussion there were two 3-ton cranes and one 10-ton crane. Cranes elsewhere in the
plant are not involved in this discussion.
91 At the shake-out, the sand in the mold is separated from the hot casting by a process
of rap.d vibration. The work is hot and dirty. It is clearly less desirable work than
operating a crane.
01 On the first day King was off, Tuesday, June 16, he received 1 hour's time for reporting.
Re was also off Wednesday, June 17. '
89 Peeler testified that King was taken off the 10-ton crane upon his instructions when
Grieves reported an accident in which King had bumped a 3-ton crane which was working
on molds, thereby endangering two molders, and that he had then told Grieves that they
would try getting along with two cranemen on the second shift. However, according to
Adams, a witness called by the respondent, King's crane had bumped into the 3-ton crane'
about the first weekkin May, 1942. It was not until about 6 weeks later that King was'
taken out of the 10-ton crane for a week. In contrast with Peeler's testimony, according
to Grieves, Peeler decided to eliminate one of the cranemen on the second shift because
cranes were standing idle. part of the time. Grieves'testified that they selected King to be
taken off the crane because he was the youngest craneman in seniority. King was not
Grieves also testified that he had got the impression that it was King's fault that the 10-
ton crane had broken upon occasions and that that question "might" have come up at
the time they decided to take King off the crane. Clearly the 10-ton crane, which was
.operated on all three shifts, did break down from time to time. However, the testimony
of the respondent's witnesses as to King's responsibility for such break-downs was not con-
vincing For instance, Chappell, bead of maintenance, was unwilling to "commit" himself
as to whether or not he had received a complaint from any of the cranemen about June 15,
that the housing on the motor of the 10-ton crane was broken and leaking oil, because they
were having "so much trouble at that time" with the 10-ton crane.
586105-44-vol. 50-42 1
646 DECISIONS 0F. NATIONAL. LABOR RELATIONS BOARD
board. From all the,,surrounding circumstances, and especially from General
Foreman Grieves' remark, when viewed in the light of the other lay-offs during
the week of June 15, that the heat was "off you guys" when Culpin and King
were returned to their regular work, the undersigned rejects the respondent's
explanation and finds that Everett Culpin and Elbert King were each laid off a
day during the week of June 15, 1942, and that King was transferred during part
of that' week at the same rate of pay to less desirable employment, because
Culpin and King were affiliated with the Union.
6. Philip Foley
Philip Foley, a squeezer molder, was laid off for about 3 days B' during the
week beginning June 15, 1942. The respondent contends that Foley was, laid
off "for making bad molds resulting in defective castings "
Foley's lay-off occurred shortly after union buttons were worn in the plant
and during the week when other molders were discriminatorily laid off. Foley
had served as the chairman of one of the union meetings held on June 14. Peeler
knew that Foley was wearing a union button. However, an analysis of the tes-
timony convinces the undersigned that just before his lay-off Foley had made
ri substantial number of soft or loose rammed molds which resulted in defective
castings 46
A soft or loose rammed mold is caused by haste or lack of care on the part of
a molder and results in the sand in the' mold being packed,so loosely that the
molten metal washes some of the sand out of place, causing a defective casting.
Foley made about 126, molds on July 15 and 16. Of the castings made from those
molds, almost half required extra work because of defects, although only two
had to be scrapped. Peeler showed Hethcote and Foley several of the worst
castings. He told Foley he was being laid off for a week because of soft rammed
holds. He also told Hethcote that he would be laid off if there were any more
such molds under his supervision. About a month before, one of the foremen,
Lester Lofts, had been laid off for about 10 days because of defective molds. In
view of that lay-off, Foley's lay-off, which was actually less than the week first
ordered, does not appear to have been an unreasonable disciplinary action.
While some of the surrounding circumstances raise doubts, the undersigned finds
that Philip Foley was laid off because he made soft rammed molds and not
because of his affiliation with the Union °B
7. Charles Roades
Charles Roades, an inspector, was informed on June 13, 1942, that his position
had been declared vacated. The respondent contends that Roades' position was
declared vacated because Roades failed to report for a medical examination
after he had reported off as having a sore shoulder.
as Foley worked only one hour on Wednesday, June 17, and was off June 18 and 19. He
worked 5% hours on June 20 and was offered the opportunity to work on Sunday, June 21,
but did not choose to do so.
96 While Foley blamed the admitted.defects in tho castings on defective cores which had
admittedly been given to him by Foreman Iletheote, Peeler testified that most of the dam-
age had arisen from soft ramming. Heihcote also testified that some of the damage had
been caused by soft ramming. Both Hethcote and Peeler testified that Peeler' knew that
llethcote had told Foley to use cores which weie below standard because no other cores
were available But the defects arising from soft ramming were not caused by the sub-'
standai d,cores
ae It is unnecessary to consider whether or- not Foley would have received a 1-day dis-
criminatorily lay-off during that week if he had not been laid off for soft rammed molds.
DUNCAN'' FOUNDRY AND MACHINE WORKS, INC . 647
On June 10 at about 11 p. in., Roades telephoned that he would not be able to
report for work that night because of a sore shoulder." That night on the
11 p. in. to 7 a. in. shift, Henry Golsen, the final inspector, tried to do both his
own and Roades' inspecting.98
On June 11, again about 11 p. in., Roades called in that he would be unable to
work because of a sore shoulder. Again Geiseb started to do double work but
General Foreman Robertson decided that Roades was needed so badly that he
would go to his home to attempt to persuade him to come to work that night.
About midnight, Robertson and Geisen called at Roades' home. Roades was not
there 98 Dirs. Roades did not know where her husband was or that he was sick.
Robertson asked that Roades call the plant as soon as he arrived. '
When Roades failed to call in for about an hour, Robertson called Peeler and
asked him to go out to Roades' home. According to both Robertson and Peeler,
Robertson was dissatisfied with Roades' previous record of tardiness and absentee-
ism,100 and wanted to get enough on Roades to take definite action. Robertson and
Peeler reached Roades' home about 1: 30 a. in. and found that Roades had just
returned. Peeler asked Roades why he was not working and Roades said that
his arm was sore. Peeler replied that his arm was not sore enough to keep him
from running around all night and told him to report at 10 o'clock that morning
for a medical'examination.l°1
Roades did not report for a medical examination as Peeler had instructed him
to do. Instead lie called in that afternoon stating that he would not report for
work that night but-would report the next day for the medical examination.
Shortly before 1 o'clock Saturday afternoon, June 13, Roades reported to the office
to tell Juttemeyer that he was ready to take the medical examination. Jutte-
meyer advised Roades that his position had been declared vacated because of his
failure to report for the medical examination when told to do so. Roades' unem-
ployment compensation slip set forth as the explanation, "6/11/42 Did not report
for duty Said he was sick. Check-up failed to find him home until 1: 30 a. m.-
advised to report at office 10 a. m.-5/12 for doctor examination but did not come
in." The slip was dated June 12, 1942.
The undersigned is convinced from Peeler's testimony that the respondent
knew from several sources at the time of the above events that Roades, who had
joined the Union in April, was associating with the organizers of the Union. On
the basis of both Peeler's and Robertson's testimony, it is clear that their early
morning visit to Roades' home was for the purpose of getting something definite
on Roades which would justify action. Thus elements in the situation suggest.,
that the respondent might have been seeking -a pretext for ridding itself of an
employee known to be active in the Union. On the other hand, there is evidence
that Roades' position was quite essential; that his absenteeism was causing genu-
° According to Roades, he strained his back the night of June 9, pushing a tray of cast-
ings. However, he did not go to a doctor until June 17, and never presented any medical
evidence as to his condition either to the respondent or at the hearing.
"There were two inspectors to a shift. Since there were no extra inspectors and the
inspection-work had to be done in order to keep the respondent's war production moving,
in the absence of any inspector it was necessary either for an inspector on another shift to
work a double shift, or for the other inspector on the shift to do double work
Hi Roades testified that he was at a pool ball until about 1 a. in ., and that he might have
played some pool
iW While the undersigned is not convinced that Roades' record was as bad as testified by
Peeler and Robertson , Roades admitted that he had been absent and late. He also testified
that he had been criticized for being late and that be had told Peeler that he was a heavy
sleeper and just could not get up
101 While some of the evidence involves the phrase, "the next morning," it is evident that
the above interview took place early on the morning of Friday, June 12, and that Roades
was told to report that same morning at 10 o'clock.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ine complications in getting out the respondent's war production ; that Robertson's
first call at Roades' home shortly after Roades reported off a1second time just at
the beginning of his shift was for the purpose of persuading Roades to come in to
do the lighter part of the inspecting that night because he was badly needed ; that
the early morning visit of Peeler and Robertson did not occur until after Mrs.
Roades had stated on Robertson's first visit that she did not know that her,
,husband was sick; and that Roades did not report for a medical examination
until over a day after the time he was told to report and in the interim had
reported off for the third consecutive night. While the matter is not without
doubt, from all of the evidence the undersigned finds that'beginning with June 10
the course of conduct pursued by Roades, in view of the essential nature of his
work, afforded the respondent so substantial a reason for taking the action which
it took that the inference is not warranted that the respondent's real reason, for
terminating Roades' employment was his affiliation with the Union.
8. Percy Kershner
The complaint alleged that because of his union affiliation and activities, the
respondent, about May 26, 1942, transferred Percy Kershner to a department
detrimental to his health as a result of which Percy 10: was forced to leave his
position about June 19, 1942, and that the respondent had since refused to
reinstate him. The respondent contends that Percy was transferred to the core
room because' his work as a ,cast clerk was unsatisfactory ; that conditions in the
core room were not detrimental to his health ; that Percy became ill and was
under treatment at the Alton Clinic which reported that he was unable to
return to work ; and that while being so reported Percy secured a position nearer
to his home.
In the spring of 1942, Percy was a cast clerk in the foundry. His duties
included the removal of tags from molds just before the molten metal was poured
and thereafter making entries on the foundry office records. That work required
that most of his time be spent in the foundry near molten metal and involved
considerable activity. Percy sometimes failed to show up for work and upon
such occasions either another cast clerk worked a double shift or a foreman had
to take his place. About the last of May, Percy, who had joined the Union
about the last of March, was transferred to the coreroom at the same rate of
pay. In the core room, he pasted the halves of small cores together, placed them
on boards, and with the help of another employee, usually Perry Whetzel, put
them in ovens to dry the paste.
The Board made no contention that the manner in which Percy was required
to do his work in the core room was any different from the normal manner of
core room work.103 While Percy had at one time received treatment in a tuber-
culosis sanitarium for a torn lung, (he had not had tuberculosis) the Board
produced no medical evidence that Percy's condition, discussed below, was caused
by or affected by his work in the core room. Further, when Percy, who was
21 years old at the time of the hearing, first went to work for the respondent,
102 Percy Kershner is the son of Seward Kershner whose case is discussed below.
Throughout the hearing he was referred to by his first name and is so referred to herein.
146 While the undersigned makes no finding to the contrary, it should be noted that, ac-
cording to Percy's testimony, he was put to work under Perry Whetzel. Wbetzel was the
representative of the Association from the core room and Percy was an active member of
the Union. While Whetzel testified that he did not have supervision over Percy, Peeler
testified that'at that time Whetzel was an all around man and did some inspecting in the
core room. In any event, Percy's place of work was across the table from Whetzel. Fur-
ther, upon one occasion, Peeler told Percy that if he did not quit talking so much, he would
put him to work in the pit. That threat was never carried out, however.'
- DUNCAN FOUNDRY AND MACHINE WORKS, INC. 649
In September 1940, he worked in the core room. That core room work is rela-
tively light work is shown by the fact that the respondent sometimes places
convalescent employees in the core room and that women are employed in the
core rooms of some foundries. According to Percy's testimony, the conditions
in the core room were intolerable because of the heat. While the temperature
of the ovens was high, the undersigned believes and finds from all of the evidence
that Percy was not required to enter the ovens. From the testimony of several
witnesses and the undersigned's observations upon inspecting the foundry, the
undersigned finds that the heat in the core room was no greater than the heat
elsewhere in the foundry. Whatever may have been the reason for Percy's
transfer to the core room,104 the record does not establish that his work there was
detrimental to his health in comparison-with his work as a cast clerk.
On June 19, after several days' absence from work due to his having fainted
at home, Percy returned to work and presented a statement from his doctor to
the effect that he had been ill with heat exhaustion and was well and could
return to work. Within 2 or 3 hours after starting to work, Percy fainted and
was taken to the Alton Clinic where he was examined by Dr. A. Seldon Mann.
On the basis of his examination on June 19, Dr. Mann sent Percy to see his own
physician and wrote the respondent, on June 20, the following letter :
Mr. Percy Kershner was examined yesterday after having fainted while at
work. This is not an industrial case ; therefore, I referred him to his family
doctor for treatment. He is suffering from postural tachycardia 103 and
sometimes rather prolonged treatment is necessary before the circulatory
system becomes stabilized. He will necessarily have to return' here for an
examination in two weeks after he has been under treatment, to determine
whether he will be able to return to work. He will no doubt have recur-
rences of this condition.
About a month later, Percy presented a statement to Juttemeyer from his own
doctor that he was able to undertake light work. Juttemeyer sent Percy to the
,clinic where Dr. Mann reexamined him and told him that he was not in condition
to work. Thereafter under date of July 25, Dr. Mann wrote the respondent as
follows: -
Mr. Percy Kershner was examined and he still has postural Tachycardia,
and I am of the opinion he should not return to'work until this is cleared up.
About the middle of August , after consultation with a second private
physician ; 00 Percy again sought to return to work but was referred to the clinic.
There he was given his third examination by Dr. Mann who wrote the respondent
as follows on August 17:
Mr. Percy Kershner . . . was in for reexamination today . . . he has
shown no, improvement . The diagnosis is undernourishment, underweight,
and postural tachycardia. These conditions are not Industrial and, only a
304 The conflicting evidence contains the three following explanations for Percy's transfer
to the core rooms: (1) that his work was unsatisfactory as a cast clerk ; ( 2) that be asked
to be transferred because he, thought he could make more money there ; and 1(3 ) that the
respondent believed that Percy was securing names and addresses of employees from the
foundry office for the Union . Since it is not found that the core room work was detri-
mental to Percy's health, no finding is made.as to the reason for the transfer.
105 Dr. Mann was not available at the time of the hearing , being in the armed forces of
the United States. His colleague at the Alton Clinic , Dr. Miller , testified from Mann's
records. That testimony was in line with the findings reported to the respondent in the
three letters set out herein . Dr. Miller testified that postural tachycardia , or rapid beat-
ing of the heart upon standing, is not caused by or affected by heat. There is no contrary
evidence in the record.
^^ Neither of the physicians consulted by Percy testified.
650• DECISIONS OF NAT'IOT"AI,' LABOR RELATIONS BOARD
long drawn out medical program will restore this boy to health. I think it
is inadvisable for him to return to work at any time in the near future. We
will be glad to recheck him at intervals of three months if there is a question
of his returning to work.
During the above period, when he was visiting the Alton Clinic, Percy was
receiving sickness insurance benefits from the insurance carried through the
Welfare Club. However, on the basis of statements secured from his own physi-
cians, while the sick benefits had about a month to run, Percy started drawing
unemployment compensation. Later he secured a position at another plant
nearer to his home, after passing the medical examination given at that plant.
While the surrounding circumstances give rise to doubts as to why Percy
Kershner was transferred to the core room, the undersigned finds that the evidence
does not sustain the allegations of the complaint that Kershner was forced to
leave his position because the work in the core room was detrimental to his health
or that the respondent refused to reinstate Percy Kershner because of his affilia-
tion with the Union.
9. Seward Kershner
' The complaint alleged that because of his union affiliation and activities, the
respondent , about June 1, 1942, transferred Seward Kershner to a less desirable
position and assigned him duties which forced him to resign about June 22,
1942, and that the respondent thereafter refused to reinstate Kershner . The re-
spondent contends that Kershner 's customary work decreased to the point where it
was necessary to transfer him to other work ; that while he could have made
higher wages at his new work, he became "mad" at the treatment he believed his
son was receiving and was argumentative and disrespectful ; that he "voluntarily
took a lay-off or a vacation" and that when he returned his position was filled ;
that his original position had not been filled by anyone else since his transfer ;
and that his employment was not terminated on account of union membership or
activities.
Kershner was one of the first employees to join the Union and was active in se-
curing members . He worked on the first shift and for some time had made loose
pattern molds , which was largely hand work. He was paid at the rate of $1 an
hour, and averaged about 20 molds a day. Kersliner liked that work better than
any other type of work . However , with the development of the respondent's war
production program, • Ioose .pattern work to fill small orders for regular customers
fell off to the point where little such work was available. Around the last of
May, about . the time his son was transferred to the core room, Kershner was
transferred to work on a squeezer moldey on the third shift . The mold which
he was given was one of the best in the plant, and with full effort he could have
earned more than he had made on loose patterns . However, squeezer-mold re-
quired substantially greater speed and Kershner decided to make only ` 72 molds
a day so that his piece rate earnings -would be just equal to his day rate earnings
on loose patterns 107 Kershner admitted that he could have got production above
72 molds but that he disliked production work and vigorously expressed his
dislike of it. Kershner complained to other employees about the danger of
becoming ruptured and was off from time to time. Also upon 'occasions, he
argued with Peeler about the treatment he believed Percy war, receiving , and es-
pecially about Peeler 's threat to put Percy in the pit. Finally Kershner took a
"vacation" of several days during which Mrs. Kershner telephoned that he would
not return unless given his former position . About the last of June , after trying
717 The rate for that mold was 11.1 cents each, or $7.99 for 72 molds Kershner' had
made $8 a day on loose patterns. Some men, on tho mold involved, made over $11 a day.
D`CNCAN FOUNDRY AND MACI3Ii\TE WVORKS, DX. 651
work,at another plant which he found he did not like, Kershner returned to see
Peeler about going back to work for the respondent. Peeler told him that his job
had been filled.
Upon the testimony'of Peeler, Green, and Davis,"' the undersigned finds that
because of the decrease in such work no one has held a position as a loose pattern
molder since Kershner's transfer. The undersigned further finds that Kershner
was not transferred because of his membership in the Union and that the work
to which he was assigned did not force him to resign.
About the first of August, after several attempts to get a job at the respondent's
foundry, Kershner arranged for an interview with President Duncan at his
office. The respondent's attorney was present. Duncan told Kershner, who was
then 48 years old and had worked for the respondent off and on since he was 17,
that he had thought he was still working and that he loked upon him as "one
of the family." After some discussion' the attorney gave Kershner a one-page
statement. Kershner asked the attorney how soon he wanted it back and the
attorney replied, "That depends on you. As soon as you want to come to work."
The document which the attorney handed Kershner read as follows :
I have never had anyone tell me that I should not belong to any union
or labor organization that worked for the Duncan Foundry. I did think
that the company, in switching me from loose pattern work to the pro-
duction line, did it because I joined the union. I thought this because Jerry
Davis, the Felts boys, Frank Vaughn and Joe Wolff led me to believe there
was still loose pattern work being done at the 1.00 per hour rate. I am
perfectly willing to work on the production line on the same basis as when
I quit and I do not think now that the company was discriminating against
me because I joined the union.
I have repeatedly asked the union to give me my card back but they
refused to do it. I signed the union card without thinking anything about
it and I was rushed into it and don't want to belong to it.
Kershner testified that he got the impression when given the document that
he would be given a job if he' wrote such a letter. President Duncan testified
that the letter given Kershner was the substance of what Kershner had stated
during the conference. He also testified that the respondent wanted Kershner
back and had. offered him a position but that Kershner had declined to take it
because he was not offered loose pattern work. Since the document submitted
to Kershner stated that he was willing to work on the production line and since
Duncan testified that the statement embodied what Kershner himself had said,
the undersigned finds that Kershner stated at that time that he was willing
to return to work on the production line andithat his being given a position was
conditioned upon his writing some such letter as that given him by the respond-
ent's attorney.
The respondent knew that Kershner had been active in the Union. This is
shown by Peeler's testimony that he had heard that Kershner had stated in
the bathhouse that he was ready to sign anyone up in the Union. The letter
given to Kershner by the respondent's attorney about August 1, and especially
the last paragraph thereof, was tantamount to conditioning Kershner's re-
instatement upon his renouncing the Union. Kershner never signed it nor did he
write the respondent a similar letter. Kershner was never thereafter offered
any position with the respondent although positions were available. Accord-
i
108 Davis, a member of the Union called by the Board , testified that there had been only
a little over 2 weeks of loose pattern work during the entire period following Kersbner's
transfer.
. 652 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
ingly; the undersigned finds that about August 1, 1942, the respondent refused to
reemploy Seward Kershner because of his affiliation with the Union.
F. Conclusions as to the discharges, lay-offs, and transfers
The undersigned finds that the respondent has discouraged membership in the
United Steelworkers of - America, affiliated with the Congress of Industrial
Organizations, by discrimination in regard to the hire and tenure of employ-
ment of Chesley McKee, Charles Cairns, Seward Kershner, Everett Culpin,
Elbert King, Tony Forbes, Clyde Forbes, Paul Phelps, Joseph Wdoff, Hubert
Phelps, William Simpson, Jerry Davis, and Melvin Hamby'
The undersigned further finds that by such discrimination in regard to hire
and tenure of employment, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The undersigned also finds that the respondent has not discriminated in regard
to the hire and tenure of employment of Charles Roades, Percy Kershner, and
Philip ,Foley, and has not discriminatorily transferred Seward Kershner to a
_position which forced him to quit his employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and, tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of the Act.
It has been found that the respondent dominated and interfered with the
formation and administration of ,the E. R. P. and contributed financial and other
support to it. The E. R. P. is no longer active, but since it has not been effectively
disestablished by the respondent, it will be recommended herein that the respond-
ent cease and desist from dominating or interfering with the administration of the
E. R. P. and hereinafter refrain from recognizing the E. R. P. should it ever return'
to active existence;
It has been found that the respondent assisted and encouraged the instigation
and formation of the Association as successor to and alter ego of the E. R. P.
and: thereafter dominated and interfered with'the administration and encouraged
and fostered the growth and continued existence of the Association and that
about July 24, 1939, the respondent entered into an agreement granting exclusive
bargaining rights to,tlie Association as a part of its plan of interference. Under
these conditions, the continued recognition of the Association as the bargaining
representative of the respondent's employees constitutes a continuing obstacle
to the free exercise by its employees of their right to self-organization and to
bargain collectively through representatives of their own choosing. Because it is
tainted with the respondent's illegal conduct, the Association is incapable of
serving the employees as a genuine collective bargaining agency and its continued
recognition would obstruct the free exercise by the respondent's employees of
the rights guaranteed to them by the Act. Accordingly, it will be recommended
that the respondent, withdraw all recognition from the Association as the repre-
DUNCAN FOUNDRY AND' MAINE WORKS, INC. - 653
sentative of any of the respondent's employees at its Alton, Illinois, plant for. the
purpose of dealing with it concerning grievances, labor disputes,. wages, rates of .
pay,' hours of employment, or any other conditions of employment and completely
disestablish said Association.
Under the facts found, the agreement with the Association constituted and was
a part of the respondent's unfair labor practices. Accordingly it will be recom-
mended that the respondent cease and desist from giving effect to the agreement
with the Association signed on or,about July 24, 1939, as well as to any extension,
renewal, modification, or supplement thereof, and any superseding agreement
which may now be in force. Nothing herein shall be taken to require the respond-
ent to vary those wages, hours, seniority, and other such, substantive features
of its relations with the employees themselves which the respondent has estab-
lished in the performance of the agreement or as it has been extended, renewed,
modified, supplemented, or superseded.
Having found that the respondent discriminatorily discharged Charles Cairns
and has discriminatorily refused to reemploy him and also Seward Kershner, the
undersigned will recommend that the respondent offer immediate and full rein-
statement to Cairns and Kershner to their former or substantially equivalent
positions, without prejudice to their seniority or other rights or privileges. The
undersigned will also recommend that the respondent make whole Cairns 'and
Kershner and also the employees who were discriminatorily laid off and there-
after returned to their employment, namely, Chesley McKee, Everett Culpin, Elbert
King, Tony Forbes, Clyde Forbes, Paul Phelps, Joseph Wooff, Hubert Phelps,
William Simpson, Jerry Davis, and Melvin Hamby, for any loss of pay each may
have suffered by reason of the respondent's discrimination against him, by pay-
ment to each of a sum of money equal to the amount which he normally would
have earned as wages, including overtime , in the cases of those discriminatorily
laid off, during the respective weeks of their respective lay-offs, in the case of
Charles Cairns, from the date of his discharge to the date of the offer of rein- -
statement, and in the case of Seward Kershner, from August 1, 1942, to the date of
the offer of reinstatement, less the net earnings 100 of each of the aforesaid during
said periods.
.
Upon the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF L&W
1. Employees' Representation Plan of the Duncan Foundry & Machine Works,
Inc., was and United Steel Workers of America, affiliated with the Congress of
Industrial Organizations, and Employees Association of the Duncan Foundry &
Machine Works, Inc., are labor organizations, within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with, the administration of Employees'
Representation Plan of the Duncan Foundry & Machine Works, Inc., and by
dominating and interfering with the formation and administration of Employees
Association of the Duncan Foundry & Machine Works, Inc., and by contributing
financial nad other support to the former and by contributing support to the
log By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where 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 Amer-
ica, Lumber and Sawmill Workers Untion, Local 2590, 8 N. L. R. B 440 Monies received
for work performed upon Federal, State, county, municipal, ' or other work-relief projects
shall be considered as earnings . See Republio Steel Corporation v. N. L R B., 311 U. S. 7.
654 DECISIONS OF NAT7("LAL LABOR RELATIONS BOARD
latter, the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 ( 2) of the Act. -
3. By discriminating in regard to the hire and tenure of employment of Chesley
McKee, Charles Cairns, Seward Kershner , Everett Culpin , Elbert King, Tony
Forbes, Clyde Forbes, Paul Phelps, Joseph Wooff, Hubert Phelps , William Simp-
son, Jerry Davis, and Melvin Hamby, and thereby discouraging membership.
in United Steel Workers of America, affiliated with the Congress of Industrial
Organizations , the respondent has engaged in and is engaging in unfair labor
practices , within the meaning of Section 8 ( 3) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act , the respondent has engaged in and
is engaging in unfair labor practices , within the meaning of Section 8 (1) of the
Act.
' 5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 (6) and ( 7) of the Act. -
6. The respondent- has not engaged in any unfair labor practices in regard
to the hire and tenure of employment of Charles Roades, Percy Kerschner, and
Philip Foley , nor by transferring Seward Kershner or forcing him to quit his
-employment.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under
i signed recommends that the respondent , Duncan Foundry and Machine Works,, --
Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Employees'
Representation Plan of the Duncan Foundry & Machine Works , Inc., or its
successor, Employees Association of the Duncan Foundry & Machine Works, Inc.,
or with the.formation or administration of any other labor organization, and
contributing financial or. other support to said labor organizations or to any other
labor organization ;
(b) Recognizing Employees Association of the Duncan Foundry & Machine
Works, Inc., as the representative of ony of its employees for the purpose of
-dealing with the respondent concerning grievances , labor disputes , wages, rates of
pay, hours of employment , or other conditions of employment ;
(c) Giving effect to the agreement of July 24, 1939 , with the Employees Asso-
ciation of the Duncan Foundry & Machine Works, Inc., or any modification , exten-.
Sion, supplement , or renewal thereof, or to any superseding agreement with it;,
(d) Discouraging membership in United ,,Steel Workers of America , affiliated,
with the Congress of Industrial Organizations,, or any other labor organization
of its employees , by discharging , refusing to reemploy , laying off, or transferring
any of its employees or in any other manner discriminating in regard to their
hire or tenure of employment , or any term or condition of their employment ;
(e) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of their 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 purpose of collec-
tive bargaining , or other mutual aid or protection , as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish Employees
Association of the Duncan Foundry & Machine Works, Inc., as the representa-
tive of any of its employees for the purpose of dealing with the respondent con-
IYUNCAN FOUNDRY AND MACHINE WORKS, INC. 655
kerning grievances, labor disputes, wages, rates of pay, hours of employment,
or,other conditions of employment, and refrain from recognizing, Employees'
Representation Plan of the Duncan Foundry & Machine Works, Inc., should it
ever return to active existence ;
(b) Offer to Charles Cairns and Seward Kershner immediate and full rein=
statement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights or privileges ;
(c) Make whole Charles Cairns, Seward Kershner, Chesley McKee, Everett,
Culpin, Elbert King, Tony Forbes, Clyde Forbes, Paul Phelps, Joseph Wooff,
Hubert Phelps, William Simpson, Jerry Davis, and Melvin Hamby, for any loss
of pay each thay have suffered by reason of the respondent's discrimination
against him by the payment to him of a sum of money equal to that which he
normally would have earned as wages, including overtime, during the week or
weeks of his lay-off, or from the date of the discrimination against him to the
date of the respondent's offer of reinstatement, whichever applies, less his net
earnings 10 during said period ;
(d) Post immediately in conspicuous places throughout its Alton, Illinois,
plant, and maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices stating that: (1) the respondent will not engage in the
conduct from which it has been recommended that it cease and desist in para-
graphs 1 (a), (b), (c), (d), and (e) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraphs 2 (a), (b),
and (c) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of United Steel Workers of America, affiliated
with the Congress of Industrial Organizations, and that the respondent will not
discriminate against any employee because of membership or activity in that
organization ;
(e) Notify the Regional Director for the Fourteenth Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate, Report, what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days,from the
date of the receipt of this Intermediate Report, the respondent notifies said -
Regional Director in writing that it will comply with the foregoing recommenda=
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
It is further recommended that the allegations of the complaint as to Charles
Roades, Percy Kershner, and Philip Foley, and as to the transfer of Seward
Kershner and his being forced to quit his employment be dismissed.
As provided,in Section,33 of Article II of the Rules and Regulations. of the
National Labor Relations Board-Series 2-as amended, effective October 28,
1942, 'any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing, setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
EABLL S BELLMAN,
Dated March 27, 1943. - Trial Examiner.
110 See footnote 109, above.