Durasteel Co.

National Labor Relations Board - Board Decisions

May 13, 1947

73 N.L.R.B. 941 (N.L.R.B. 1947)

In the Matter of DI/RASTEEL COMPANY and AMERICAN FEDERATION OF
LABOR AND AFFILIATED INTERNATIONAL UNIONS
Case No. 14-C-11,55.-Decided May 13,1947
Mr. Charles K. Hackler, for the Board.
Messrs. J. Dean Laf/ler and B. G. Dilworth , of Saleni , Mo., for the
respondent.
Messrs. Victor B. Harris and Clyde Huffstutler , of St. Louis, Mo.,
for the CIO.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
ORDER
On August 20, 1946, Trial Examiner R. N. Denham 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 take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. He further found that the re-
spondent had not engaged in and was not engaging in certain other
unfair labor practices, and recommended, as to these, that the com-
plaint be dismissed. Thereafter, the respondent, the CIO and counsel
for the Board filed exceptions to the Intermediate Report, and the
respondent and the CIO filed briefs in support thereof. On January
14, 1947, the Board at Washington, D. C., heard oral argument, in
which the CIO and the A. F. of L., the charging union,, participated.
The Board has considered the, rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the exceptions and modifications noted
below :
1. The respondent and the CIO have excepted to the Trial Exam-
iner's finding that Calhoun and Carenen were expelled from the CIO,
and thereafter discharged, because of their membership in and ac-
1 The A A' of L did not participate in the hearing before the Trial Examiner.
73 N. L. It. B., No. 183. 941
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tivity on behalf of the A. F. of L. They contend that the evidence
does not prove that dual unionism was the reason for the expulsion
and discharge. We find no merit in this contention. The evidence
bearing on the reason for the expulsions is fully and accurately set
forth by the Trial Examiner in the Intermediate Report, and, in our
judgment, impels the conclusions that, but for their dual activity,
Carenen and Calhoun would not have been expelled from the CIO
and discharged from their employment with the. respondent. In these
circumstances, their discharges were unlawful under Section 8 (3)
of the Act.
In its brief, the respondent bases its argument that there has been
a failure of proof upon the following line of reasoning : counsel for
the Board proved that Carenen and Calhoun were expelled after
having been charged with and found guilty on three counts; (1) vio-
lating their oath and obligation in the CIO; (2) obtaining membership
in a union dual to the CIO; and (3) publishing false reports and mis-
representations about the CIO. The respondent contends that proof
of these facts is not proof that the expulsions were for dual unionism
(count #2), as it is possible that the CIO relied solely and entirely
upon the other two counts as the basis for the expulsion, and these
counts were not shown to have had any relation to dual unionism.
If the only evidence adduced by counsel for the Board on the question
of the reason for the expulsions were that stated above, the respond-
ent's contention might be valid. But the record contains a wealth of
additional evidence bearing upon this issue, and this evidence, adverted
to below in our treatment of the CIO's contention, shows conclusively,
in our opinion, that, but for their dual union activity, Carenen and
Calhoun would not have been expelled and consequently discharged.
Accordingly, we find no merit in the respondent's position.
The CIO bases its argument upon a somewhat different line of
reasoning. In its brief, the CIO contends that the Trial Examiner
failed to take into account certain evidence which, in its judgment,
negates the conclusion that dual unionism was the reason for the
expulsions. The evidence upon which the CIO relies is the testimony
of Steyen Chabak, the CIO's chief steward and Chairman of its Trials
Committee. The following testimony of Chabak is considered
crucial by the CIO:
Q. (By CIO counsel) Now did you take into consideration in
reaching the conclusion to expel the two men the fact that Mr.
Caren en and Mr. Calhoun had joined the A. F. of L., or had signed
representation cards?
A. (By Chabak.) We took that into consideration but we de-
decided signing another card didn't make no difference whether
DURASTEEL COMPANY 943
it was TAM or CIO or any other union; that wasn't enough to expel
a man from the local union.
Q. Is it your position that the signing up of the A. F. L. cards
would not, in itself, have been sufficient to have caused these two
men to have been expelled?
A. No, sir.
In addition to this quoted testimony, Chabak testified that evidence
was adduced at the union trial to show that either Calhoun or Carenen
violated the CIO's contract with the respondent by having cards (pre-
sumably AFL) signed on company time, and that both Carenen and
Calhoun, along with other employees, were not performing their work
properly on one occasion so that some of the welders had to be sent
home for lack of work. This testimony, contends the CIO, proves that
Carenen and Calhoun were expelled for reasons other than their dual
union activity and that therefore their discharge, pursuant to its closed-
shop agreement with the respondent, was not unlawful. We do not
agree. It is not denied that in the conversation between Calhoun and
the CIO business agent, in the presence of the respondent's superin-
tendent, the business agent countered Calhoun's disavowal of member-
ship in the A. F. of L. With the statement that he had seen Calhoun
wearing an A. F. of L. button. It is clear that Carenen and Calhoun
openly and actively engaged in dual union activity in the role of organ-
izing committeemen, and that the A. F. of L. was currently waging a
strenuous organizational campaign. All the evidence in the case, and
these facts in particular, convince us, and we find: although other
matters apparently unrelated to dual unionism were considered and
given weight by the CIO in reaching its decision to expel Calhoun
and Carenen, dual unionism was regarded as their principal offense
and, except for that, they would not have been expelled. To this
extent, we do not concur in the Trial Examiner's conclusion that their
expulsion arose solely from their activity on behalf of the A. F. of L.2
2. The Trial Examiner rejected-and properly, we believe-the re-
spondent's contention that the dual activity occurred too far in advance
of the expiration date of the CIO's collective bargaining contract to
accord Calhoun and Carenen immunity from expulsion and discharge.
The contract, pursuant to which the discharges were procured, pro-
vided for a 2-year term, with a 30-day automatic renewal clause.
2 The CIO contends that the testimony of Chabak was not considered by the Trial
Examiner while it is tine that he does not specifically advert to it in his Intermediate
Report, he does, in geaeial terms, discuss the argument of the CIO and concludes that,
The contention that then expulsion was based on other grounds is not supported by the
record and is without merit " It may, then, be fairly presumed that lie did take this
evidence into account in reaching his conclusion In any event, we have given full con-
sideration to Chabak's testimony in our discussion above, and we have concluded that
it does not establish the CIO's position.
739926 -47-vol 73-61
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The automatic renewal date of the contract. was May 1, 1946; the A. F.
of L. instituted its organizational campaign in February of that year;
and on February 21 and 22, respectively, Carenen and Calhoun signed
A. F. of L. membership cards. The A. F. of L's petition was filed on
March 11. Thus, the dual activity of the two men began 68 days before
the automatic renewal date of the contract, but only 18 days before
the filing of the petition. It is clear from the evidence that the purpose
of the A. F. of L.'s campaign, and the purpose of the activity of
Carenen and Calhoun in their participation in that campaign, was
not to subvert the existing status of the CIO, but rather to secure for
the employees an opportunity at an appropriate time to exercise their
right under the Act to change their collective bargaining representa-
tive for the next contractual period. The fact that the activity began
68 days, rather than, say, 58 days before the renewal date of the agree-
ment, does not of itself remove it from the protection of the Act, for,
as our decisions on this question show,3 we have not yet fixed any par-
ticular number of days prior to the termination or automatic renewal
date of a closed-shop contract during which employees must act to
bring about a change in their collective bargaining representation'
Rather we have said that dual activities will be protected which are
reasonably calculated to bring about an election at an appropriate
time. In applying that principle, we have considered the timing of
the dual activity an extremely important, but not the controlling, fac-
tor. Another factor is the purpose of the activity. Timing will often
go to establish purpose. Protection will not be given dual union activ-
ity where its purpose is to upset the existing contract status of the
union. In the present case, considering all the circumstances, includ-
ing the fact that the closed-shop contract provided for a 2-year term,
we believe that the dual union activities of Carenen and Calhoun, which
began 68 days before the automatic renewal date of the contract and 18
days before the filing of the A. F. of L.'s petition, were "reasonably
calculated" to bring about an election at an appropriate time, and were
thus protected under the Act. Indeed, it may be noted that their activi-
ties had just that effect, and that an election was subsequently conducted
in which the CIO was again chosen to represent the employees. We
therefore find no merit in the respondent's argument.'
See, for example, Matter of Southu:estein Portland Cement Co , 65 N L R. B. 1.
4 We note a minor error in the Intermediate Report. The Trial Examiner states that
in Matter of Aluminum Company of Ammace, Lafayette Works, 68 N L R B 750, the
Board indicated that the "same rule applying to the entertainment of petitions in rep-
resentation cases has an application to this type of case, and that at least one of the limits
of the protected area is that peuod when a question concerning representation is pend-
ing " In that case, however, the Board declared that it found it unnecessary to pass upon
that point
, At the oral argument before the Board, counsel for the CIO conceded that the dual
activity was not premature
DURASTEEL COMPANY 945
3. The CIO, but not the respondent, contends in its brief that the
respondent cannot be found to have violated the Act because it (the
respondent) did not have sufficiently clear-cut knowledge of the rea-
sons for the expulsion to bring it within the requirement of knowledge
laid down in the Spicer case.6 We find no merit in this contention.
At the time that the respondent discharged Calhoun and Carenen, as
fully described in the Intermediate Report, it was in possession of
all the objective facts which counsel for the Board proved at the hear-
ing and on the basis of which we have heretofore concluded that dual
union activity was the reason for the expulsions. We find, therefore,
that the respondent knew at the time of the discharge that these men
would not have been expelled from the Union had it not been for this
activity. Certainly, it made no effort to determine from the CIO the
extent, if any, to which dual uninonism was considered in determining
the penalty. The Spicer case, upon which the CIO relies, is materially
different in its facts from the present case. There, for example, un-
like the instant case, the respondent did not have knowledge that the
union had charged the employees in question with dual unionism, and
had found them guilty of that charge, among others.
4. At the oral argument before the Board, counsel for the CIO
contended that the protection of the Act should not extend to Calhoun
and Carenen because they did not appear at their trial before the
Union's trial connmittee. We recently considered this same problem
in the American White Cross case,' and we concluded, for the reasons
therein stated, that in this situation we would not condition rights
under the Act upon the exhaustion by the employees of their intra-
union remedies. We still believe that a sound policy, and we reaffirm
our reasoning in the Americana White Cross case.
5. The Trial Examiner has found that Calhoun and Carenen will
return to the respondent's employ, upon reinstatement, neither as
old employees subject to the maintenance-of-membership provision
of the C. I. O. contract nor as new employees required to make appli-
cation for membership in the C. I. 0., and he therefore concludes that
it will not be necessary for them to become and remain C. I. O. mem-
bers in good standing as a condition of their employment. We agree,
to the extent that the contract of June 21, 1946, may be applicable if
and when they return to their employment with the respondent, but
do not deem it necessary to pass on the status of Calhoun and Carenen
beyond that point. Our Order herein will direct the respondent to
offer Calhoun and Carenen immediate and full reinstatement. In
complying with the Order, and thereafter, the respondent will of
9 Matter of Spacer Mfg Corp , 70 N L R. B 41
'Matter of The American White Cioss Laboratories , Inc., 66 N L. R B. 107; enf'd
160 F (2d) 75, Febiuary 19, 1947 (C C A 2)
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
course be under the obligation not to discriminate against Calhoun
and Carenen, within the meaning of Section 8 (3) of the Act and, sub-
ject to the observation above made, the proviso thereto.
6. For reasons stated in the recent majority opinion in the Lewis
Meier case a we cannot agree with Mr. Reynolds that the complaint
should be sustained only on condition that the contracting union-
here, the C. 1. 0., as there the A. F. L.-be made a party respondent.
We can find no authority in the statute as passed in 1935, or in any
Court decisions rendered in the intervening years, that would warrant
our reaching the conlusion that a labor organization becomes an "em-
ployer" within the meaning of Section 2 (2) of the Act simply because
a union security clause is present in a particular collective bargaining
agreement. We are administrators, not legislators. Finding no power
to act upon his proposal, we see no occasion to comment here, one way
or the other, upon its merit.
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, Durasteel Company, Han-
nibal, Missouri, and its officers, agents, successors, and assigns shall:
1. Cease and desist from discouraging membership in American
Federation of Labor and Affiliated International Union, or in any
other labor organization of its employees, or encouraging membership
in United Steelworkers of America, C. I. 0., or in any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire or tenure of employment, or any term or condi-
tion of their employment, for engaging in activities directed toward
the designation of a new collective bargaining representative at an
appropriate time.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to B. L. Calhoun and Alfred L. Carenen immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges ; 9
(b) Make whole B. L. Calhoun and Alfred Carenen for any loss of
pay they may have suffered by reason of the respondent's discrimina-
8 Matter of Lewis Meier & Company, 73 N L. R B 520, issued April 24, 1947
In accordance with our consistent interpretation of the term, the expression "foimer
or substantially equivalent position ' is intended to mean " former position wherever pos-
sible, but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York , San Juan,
Puerto Rico , Branch , 65 N L R. B. 827.
DURASTEEL COMPANY 947
tionnagainst them, by payment to each of them of a sum of money equal
to that which each normally would have earned as wages from the date
of the respondent's discrimination against them, March 26, 1946, to
and including April 4, 1946, and from June 24, 1946, to the date of the
respondent's offer of reinstatement, less his i.et earnings, if any, during
such periods;
(c) Post immediately in both its plants at Hannibal, Missouri, copies
of the notice attached hereto and marked "Appendix A." 10 Copies
of said notice, to be furnished by the Regional Director for the Four-
teenth Region, shall, after being duly signed by the respondent's repre-
sentative, be posted by the respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(d) 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.
IT IS FURTHER ORDERED that the amended complaint, insofar as it
alleges that the respondent discriminatorily discharged Calhoun and
Carenen on July 30, 1946, be, and it hereby is, dismissed.
MR. JAMES J. REYNOLDS, JR., dissenting:
For the reasons stated in my dissenting opinion in Matter of Lewis
llleier c0 Company,- I would dismiss the complaint herein without
prejudice to a further consideration of the case by the Board at a
later date after the C. 1. 0. has properly been made a party respondent.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not discourage membership in American Federation
of Labor and Affiliated International Unions, or any other labor
organization, or encourage membership in United Steelworkers
of America, C. I. 0., or any other labor organization of our em-
ployees, by discharging or refusing to reinstate any of our em-
10In the event that this Older is enforced by a decree of a Circuit Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER ", the words "A
DECREE Or THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING"
11 73 N L R. B 520.
O
948 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees or by discriminating in any other manner in regard to
their hire or tenure of employment, or any term or condition of
their employment, because of their failure to maintain member-
ship in a labor organization, except insofar as said conduct is
protected by the proviso to Section 8 (3) of the National Labor
Relations Act.
We will offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any
loss of pay suffered as a result of the discrimination.
B. L. Calhoun
Alfred L. Carenen
DURASTEEL COMPANY,
Employer.
By --------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Charles K. Hachler, Esq , of St. Louis, llo., for the Board
J. Dean Leffler, Esq., and B. U. Dilworth, Esq, of Salem, Mo, for the Respondent.
STATEMENT OF 1Hr CASE
Upon a charge duly filed on April 8, 1946, by American Federation of Labor and
Athliated International Unions, herein called the A. F of L, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Fourteenth Region (St. Louis, Missouri), issued its complaint dated June 24,
1946, against Durasteel Company, of Hannibal, Missouri, herein called-Re-
spondent, alleging that Respondent had engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) 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 and charge together with notices
of hearing thereon were duly served upon Respondent, A. F. of L., and United
Steelworkers of America, hereinafter called the C. I. 0. The original hearing
so noticed having been postponed, supplemental notices of hearing were duly
served upon the above parties.
With respect to unfair labor practices the complaint, as originally served, alleges
that on or about March 26,1946, Respondent discharged B. L. Calhoon,' Alfred A. L.
Carenen, and R. C. Clark and at all times thereafter has refused to reinstate them
to their original or substantially equivalent employment, because of theim mem-
bership in and activity on behalf of A F. of L, for which activity said employees
and each of them had been suspended from membership in the C I 0 , and that
I Described in the complaint as B. L. Calhoun.
DURASTEEL COMPANY 949
thereby Respondent had discouraged membership in the A. F. of L. and encouraged
membership in the C. I. 0. and had engaged in unfair labor practices within the
meaning of Section 8 (1) and (3) of the Act. At the opening of the hearing,
counsel for the Board moved to amend the complaint to recite that the persons
discharged had been expelled from the C. I. 0. instead of suspended, as originally
alleged. There being no objection, the motion to amend was granted.
Respondent duly filed its verified answer admitting all the allegations of the
complaint with reference to the corporate structure of Respondent and the nature
and extent of its business , and that the labor organizations involved are in fact
labor organizations within the meaning of the Act ; it further admitted the dis-
charge of the three named persons and pleaded affirmatively that these discharges
were required of it under the provisions of a contract then existing between itself
and the C. I. 0. requiring membership in good standing in the C. I. 0. as a
condition of employment , and that these employees, having failed to maintain
such membership in good standing , and the C. I. 0. having demanded their
discharge, Respondent was under a contractual obligation to comply with such
demand and did so.
Pursuant to notice duly served, a hearing was held on July 29 and 30, 1946,
at Hannibal, Missouri, before the undersigned, R. N. Denham, a Trial Examiner
duly designated by the Chief Trial Examiner. The Board and Respondent
were represented by counsel. C. I. 0. appeared by counsel and, as a party to
the contract involved herein, moved orally for leave to intervene. The motion to
intervene was granted on the pleadings and the oral motion, whereupon all
parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses and to introduce evidence
pertinent to the issues.
When counsel for the Board announced that he had no further evidence to
offer on his case in chief, counsel for Respondent filed a written Demurrer
to the Evidence and Motion to Dismiss the complaint for lack of evidence of the
commission of an unfair labor practice within the meaning of the Act ; and in the
course of argument on the Demurrer and Motion, announced that he would
stand on the demurrer and offer no evidence. The demurrer was overruled
and the motion denied. Shortly thereafter and before any other action had been
taken in the process of hearing, counsel for Respondent asked leave to place
in the record a colloquy he had had during the immediately preceding recess,
with counsel for the Board. That permission was granted and counsel for
Respondent and counsel for the Board stipulated that during the recess counsel
for Respondent had advised counsel for the Board that it was the position of
Respondent that the discharged employees could not again be employed by
Respondent until and unless they had established good standing with, the
C. I. 0. and that if Calhoon and Carenen, who had been reinstated on the pre=
ceding Friday, July 26, and who had been present in the hearing room during
the entire hearing, should attempt to resume their employment at the conclusion
of the hearing, they would not be allowed by Respondent to do so. Counsel for
the Board immediately asked leave to amend the complaint by inserting therein
a paragraph alleging that Calhoon and Carenen had been discharged on July
30, 1946, for the same reasons set forth in the complaint with reference to the
original discharge. Counsel for Respondent was advised that if granted, the
amendment would serve to set aside the action taken with reference to his
Demurrer to the Evidence and Motion to Dismiss and was requested to advise
the Trial Examiner whether, with the complaint so amended, he would be in
a position to proceed forthwith, would require time to meet the new allegations,
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or would renew and stand on his Demurrer to the Evidence and,Motion to
Dismiss. Counsel for Respondent indicated that he regarded the amendment
as without the scope of the authority of the Trial Examiner but that he was not
surprised by the factual allegations and did not request time within which
to meet them. The motion to amend was granted Counsel for the Board then
proceeded to produce pertinent evidence on the subject matter contained in the
amendment. Respondent refused to proceed and elected to continue to stand
on its Demurrer to the Evidence and Motion to Dismiss, which was and is
overruled and denied.
At the conclusion of all testimony, counsel for the Board moved to further
amend the complaint by striking therefrom the name of R C. Clark. The
motion was granted without opposition Counsel for the Board then moved
to conform all pleadings to the proof with reference to the coirection of names,
dates and other minor matters not going to the material issues involved. The
motion was granted without opposition. Before the close of the hearing, counsel
argued the issues on the record and thereafter requested the privilege of filing
briefs with the Trial Examiner, which request was granted Briefs have been
received from counsel for the Board and Respondent.
On the basis of the foregoing and on the entire record. after having heard and
observed the witnesses and considered all the evidence offered and received, the
undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
0
Respondent is a corporation organized and existing under the laws of the State
of Missouri and having its office and principal place of business in Hannibal,
Missouri, where it maintains two plants and engages in the manufacture of steel
furniture. In the course and conduct of its business and in the operation of its
plants, Respondent causes and has continuously caused large quantities of raw
materials to be purchased and transported in interstate commerce from and
through States of the United States other than the State of Missouri to its plants
in Hannibal, Missouri. In the course and conduct of its business Respondent has
caused and continues to cause large quantities of finished products to be shipped
and transported in interstate commerce to and through States of the United States
other than the State of Missouri from its plants in Hannibal, Missouri. Respond-
ent having admitted in its answer the foregoing statements taken from the alle-
gations of the complaint, it is found that Respondent is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
American Federation of Labor and Affiliated International Unions, and United
Steelworkers of America, C I. 0 , are labor organizations admitting to member-
ship employees of Respondent at its plants at Hannibal, Missouri.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On March 23, 1942, the C I. 0 won a consent election among the employees at
both plants of Respondent, except supervisors, clericals and watchmen, in com-
petition with Metal Furniture Workers Union, Independent, and on April 28,
1942, entered into an agreement with Respondent which expired by its terms on
May 31, 1943 On June 17, 1943, another agreement was entered into which
DURASTEEL COMPANY 951
expired by its terms on May 31, 1944. On June 15, 1944, C I. O. and Respondent
entered into a third collective bargaining agreement to expire on May 31, 1946.
On September 15, 1944, pursuant to a petition filed by District 50, United Min"
Workers of America, on April 14, 1944, the C. I. 0 and District 50 participated
in an election which was won by the C I 0 by a vote of 174 to 68. On September
29, 1944, C. I. 0 was certified by the Board as the collective bargaining agent in
a two-plant unit, and the contract of June 15, 1944, heretofore referred to, was
thereafter regarded by the parties as a binding and effective contract for the
stated period of its term. This contract contained a provision which made main-
tenance of membership in good standing in the C. I. O. by all employees who then
were members, a condition of employment, and required that all new employees
become members within a designated period after employment. The employees
here involved were subject to this condition
On February 21, 1946, the general representative and organizer for the
A. F. of L., J. N. Skaggs, called a meeting of employees of Respondent at the
Labor Temple in Hannibal , Missouri , and succeeded in obtaining signed cards
designating A. F. of L. as bargaining representative, from a substantial number
of them. On March 5, 1946, at a second meeting, an additional large number
of such designation cards were obtained and a committee was set up to prosecute
the organizational campaign within the plant. The members of this committee
were supplied with buttons reading "A. F. L Committeeman." At that time,
although Carenen and Calhoon were C. I. 0 shop stewards and the latter was
also treasurer of the local C I. O. union, both were among the employees desig-
nated to serve on the committee and like the others were issued buttons. Neither
made any secret of his defection to A. F. of L. and both of them conspicuously
wore their "A F. L. Committeeman," buttons alongside their C. I. 0. "steward"
buttons. By Maich 5, and certainly by March 11, 1946, according to the uncontro-
verted testimony of Skaggs, more than a majority of the employees had signed
written authorizations designating A. F. of L as their collective bargaining
representative. On March 5, Skaggs wrote Respondent claiming such representa-
tion and stating also :
May I request that you withhold recognition of any other union, other than
the one named herein, for the purpose of collective bargaining, until such
time as the National Labor Relations Board may decide which union shall
constitute the legally certified bargaining agent.
Please advise me as to your company's intentions with reference to the
above-requested recognition for the purpose of collective bargaining (that
is to say, establishing wages, hours and working conditions) and to establish
a signed agreement between your company and the above-mentioned union
at the expiration date of the now existing contract which is May 31, 1946.
On March 7, President Lyons of Respondent replied to the foregoing saying
. . . "I would suggest that you take the matter up with the National Labor
Relations Board and have them instruct us what to do."
On March 11, 1946, Skaggs filed the usual petition of A. F. of L for certification,
in the office of the Fourteenth Region at St. Louis, Missouri
On March 11, 1946, C I O. issued identical notices to Calhoon and Carenen
and to some 20 or 30 other employee members, summoning them to appear before
the C. I. O. Trial Committee to answer the following charges :
"Charge #1
Violating your oath and obligation in the Steel-Workers Union.
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charge #2
Obtaining membership in a Union dual to the United Steel-Workers of
America.
Charge #3
Publishing false reports and misrepresentation of our Union "
Calhoon and Carenen, and at least some of the other employees who received
such notices, reported them to Skaggs who advised them not to appear for the
trials. Skaggs also immediately telephoned G. E. Lyons, Respondent's president,
read the charges that Calhoon had received over the phone, advised Lyons that
he probably would be called upon by C. I. 0. to discharge some o1 the employees
against whom such charges had been preferred and that if he acceded to such
demands, he, Skaggs, would immediately file unfair labor practice charges with
the Board.
Practically all those who received the notice of charges acted on Skaggs'
advice and did not attend the trials. On or about March 22, 1946, these em-
ployees, some 20 to 30 in number, received formal notices of the findings of
the Trial Committee and the punishment imposed. Those findings included
verdicts of "guilty" as to one or more of the charges, and fines of up to at least
$50.00, some with suspensions and others with stated probation periods. As
to Calhoon and Carenen, the verdict was "Guilty of all three charges-Expelled
from the Union." °
On March 25, C. I. 0 wrote Respondent advising it that Calhoon and Carenen
were no longer in good standing and demanding the termination of their em-
ployment.
On March 26, Calhoon and Carenen were summoned separately to the office
of the plant superintendent, Raymond A Titter, and in the presence of the
business agent of the C. I. 0., were notified that under the contract and pur-
suant to the demand of the C I. 0., since they had lost good standing with
that organization, he was required to discharge them. While Calhoon was
being so interviewed he engaged in a colloquy with the business manager of the
C. I. 0. on the subject of his alleged membership in the A F. of L Calhoon
denied that he was a member of the A. F. of L. and the business manager of
the C. I. 0 asserted that he had seen him wearing a button stating that he was
a member of the A. F. of L, whereupon Calhoon picked out of his pocket a
button that he had worn on his street clothes, handed it to Titter and asked him
whether it stated he was a member of A. F. of L. This button read "Join
A. F. L."
When Carenen was interviewed, also in the presence of the business repre-
sentative of the C. I 0, Titter asked him how he came to get into the bad
graces of the C. I. 0. and his reply was that he didn't know, unless it was be-
cause he had signed the A F of L. card and worn the A. F. of L button. It
is found that these two incidents, when taken with Skaggs' telephoned advice
to Lyons concerning the charges, constitutes full notice to Respondent of the
circumstances surrounding their loss of good standing in C I. 0 by Calhoon
and Carenen
Calhoon and Carenen had agreed with Titter to return the next day and get
their final pay checks When they did so, there was further conversation with
Titter during which Carenen asked Titter if be had ever seen the charges and
verdicts of the Union. When he said he was not familiar with them, Calhoon
showed him the copy of the charges which had been read by Skaggs to Lyons
over the telephone on March 12, and Carenen showed him the copy of the notice
of the result of the trial and of his expulsion. This further notice coming at
DURASTYL COMPANY 953
this time when the men were being paid off was a further opportunity by Re-
spondent to withdraw the discharges, of which Respondent failed to avail itself.
In view of the foregoing, it is found that Respondent had full and complete
notice and knowledge prior to the actual discharge of Calhoon and Carenen
that their expulsion from the Union and disqualification under the "good stand-
ing" clause of the contract, arose solely fiom their activity on behalf of the
A. F. of L and their efforts to change the bargaining representative of the
employees at the appropriate time.
In his argument of the Demurrer to the Evidence, counsel for the Respondent
conceded all the material facts heretofore recited, and directly subscribed
to the proposition that under the contract which makes continued union mem-
bership in good standing a condition of employment, there is a period toward
the end of the contract, which he referred to as a "protective period," during which
employees must be allowed, with impunity, to engage in activities designed to
effect a change in the bargaining representative at the end of the current con-
tract period. His sole argument was that in this instance, with the contract
period ending May 31, 1946, the period from March 26, 1946 to May 31, 1946,
was unreasonably long, and may not be said to represent a "protective period,"
especially in view of the evidence of Skaggs that he began his organization
on February 21 and by March 5 or not later than March 11, had obtained written
designations from more than a majority of the employees. He further stated
that there is no other issue here involved. It is to be noted, however, that the
contract had a 30-day automatic renewal clause, which necessitated action by a
rival union not later than May 1st.
It is true that none of the decisions of the Board on this subject attempt
to lay down a clear yardstick for the determination of the period within which
employees covered by a closed-shop contract are free to engage in organizational
activities on behalf of a rival union without jeopardizing their employment if
the contracting union should discipline them by expulsion or otherwise depriv-
ing them of good standing ; but the decisions do indicate at least the minimum
period. In the Rutland Cow t case 2 in which only six or seven employees con-
stituted the entire unit, the Board indicated that it might not hold them pro-
tected in their activities on behalf of a rival union if such activities had occurred
30 clays or 6 weeks prior to the expiration of the contract. In the Southwestern
Portland Cement Company case,' the Board clearly held that activities duiing
the first 4 months of the contract term of 1 year were outside the protected
area. In the Portland Lumber Mills case,4 and in the Cliffs Dow Chemical Co..
case,' the activities which led to the expulsion occurred in connection with an
election and were so clearly in contemplation of the termination of the con-
tract that it was not necessary to dwell upon the time element in terms of months
or weeks.
Where the question of the time element has been involved, the general prin-
ciples enunciated by the Board have indicated only that for a "reasonable time"
prior to the expiration of the current closed-shop contract, the employees must
be free to exercise their right to change or seek a change in the collective bar-
gaining agent who represents them. That this right to protection should
properly extend only to a reasonable period at the end of the contract term,
which normally is the only time when a renewal or a change of designation may
2 In the Matter of Rutland Court Owners , Inc., 46 N. L R . B. 1040.
3 In the Matter of Southwestern Pot tland Cement Co., 65 N L R B. 1.
4 In the Matter of Portland Lumber Mills, 64 N. L R B 159
5 In the Matter of Cliffs Dow Chemical Co., 64 N. L. R. B. 1419.
954 DECISIONS OF NATIONAL I1ABOR RELATIONS BOARD
be effected, has apparently been taken by the Board as its guide in arriving at
its conclusions Legitimate contracts have always been protected as an out-
standing medium for stabilizing the employer-employee relationship and as
many safeguards as are possible have been thrown around them to prevent
undue interference with that relationship One of these has been the con-
sistent refusal by the Board to consider petitions filed too far in advance of
the terminal (late of an existing contract. But when this has been (lone, the
Board has usually left the door open by dismissing such petitions "without
prejudice to the filing of it new petition at a reasonable time before the expira-
tion of the existing contract " This practice, it seems, provides something with
which at least the minimum extent of the protected period can be measured.
In the recent case of Aluminum Company of Ameiica, LaFayette Works,'
although the final decision turned on the fact that the contract had expired when
the discharges took place, the Board has indicated that the same rule applying
to the entertainment of petitions in representation cases has an application to
this type of case, and that at least one of the limits of the protected area is that
period when it question concerning representation is pending There the Board
said :
"even if the contract were still in effect, the discharge would have been
violative of the Act since the Respondent knew that the A. F. of L.'s request
for Wilson's discharge was based on his expulsion from A. F of L because
of his activities on behalf of the Steelworkers during the time that a question
of representation was pending."
In the instant case, the question concerning representation was first raised
on March 5, 1946, by Skaggs' letter to Lyons, and more definitely crystallized on
March 11, 1946, when the A F. of L. filed its petition for a determination of repre-
sentatives Respondent was advised of this filing on March 21, 1946, by letter
from the Board's Field Examiner, Walker J. Clayton. In its decision on that
petition,' the Board found that since the A F. of L had filed its petition prior
to the operative date of the 30-day automatic renewal clause of the contract, the
contract did not constitute a bar to the representation proceedings and directed
that an election be held. The election was held on May 2S and resulted in a
vote of 173 for C I. O. and 91 for A F of L with the subsequent certification of
the C. I 0 on June 19, 1946.
Counsel for Respondent ignores this announced principle and argues that since
A F of L took less than 30 (lays to effectively acquire designation from a majority
of the employees, the protected area in this case should not be found to cover a
greater length of time. Such reasoning is without merit That conditions were
such as to make a successful organizational campaign in a plant of almost 400
employees operating under closed-shop conditions possible in that short period,
is no more than a fortuitous circumstance. In the next plant of the same size
the time required to accomplish the same result well might be much longer. Such
a yardstick holds no measure of stability and provides nothing by which either
the employees who may desire to effect a change, or the employer confronted with
demands for discharge, may govern themselves. The area already indicated by
the Board in the Aluminum Company/ of Amei tea case does, however, provide a
reasonably determinable factor to indicate what the minimum of such protected
period should be. All the elements there referred to are found here.
It is therefore found that the minimum period of protection of employees in
the exercise of their rights to change or attempt to change their designation of a
' In the Matter of Aluminum Company of America, LaFayette Works, 68 N L R. B. 750.
7 In the Matter of Durasteel Company, 67 N. L R B 1295.
DURASTEEL COMPANY 955
bargaining agent, notwithstanding the provisions of a closed-shop contract and
disciplinary conduct of the contracting union depriving them of good standing,
begins at that time when, under the decisions of the Board, a question concerning
representation arises, as to the determination of which , an existing contract will
not constitute a bar, and that for such purposes, the question concerning repre-
sentation may be said to have arisen when a rival union makes a bona fide claim
of representation as was done here on March 5, 1946, and thereafter promptly
follows it with the filing of a petition, to which the then existing contract is not,
under the principles announced by the Board, a bar.'
It having thus been found that the protected period extended at least to
March 11, 1946, it follows that the discharges on March 26 occurred at a time
when the employees were exempt from disqualification for employment under the
closed-shop provision of the contract, due to disciplinary action of the union
arising from their activities on behalf of a rival union, and it is so found.
Although C. I. O. contends that these men were expelled for reasons other
than their promotion of A. F of L., the records made by C. I O. in the expulsion
proceedings and served on Calhoon and Carenen are to the contrary. These
records specifically recite that the charges against Calhoon and Carenen are as
heretofore set out, that they had been found guilty of all three charges, and that
on that basis, they had been expelled from the Union as of March 18, 1946 The
contention that their expulsion was based on other grounds is not supported by the
record and is without merit.
Since Respondent's president was fully apprised and warned against dis-
charging the employees if they should find themselves expelled from the Union,
and the plant superintendent was advised of the cause of the loss of good standing
when he actually discharged the men, and since the loss of good standing and
subsequent discharge occurred during the protecting period, all the elements the
Board has heretofore found must be present before an employer may be held
responsible for a discharge under the closed-shop provisions of a contract, are
found here. Whether wilful or not, such a discharge impinges on the rights
guaranteed employees under Section 7 of the Act and upon the paramount pur-
poses of the Act as set forth in Section 1 thereof, regardless of the proviso
contained in Section 8 (3). In such circumstances, the Board has held in the
cases heretofore cited, the language of the proviso must give way and the stated
purpose and principles of the Act prevail.
It is therefore found that on March 26, 1946, Respondent discriminatorily
discharged Calhoon and Carenen because of their activities on behalf of A. F of L.,
thereby discouraging membership in the A. F. of L. and encouraging membership
in the C. I. 0, and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
The strike of April 4, 1946
On March 29, Skaggs wrote Lyons calling attention to the discharges of Calhoon
and Carenen and threatening a work stoppage on April 5, 1946, unless the men
should be reinstated before that time. In the interchange of correspondence
that followed, Skaggs repeated the strike threat on April 1, 1946. On April 4,
8 It has been suggested that the period should extend for some reasonable time before
,he demand and/or petition, to allow for a period during which the necessary foundation
can be laid for the demand and/or petition The suggestion appears to have merit, but in
the instant case, such a question is not present and consequently no determination of it is
required or made
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1946, without previous notice to Respondent and notwithstanding a provision in
its contract prohibiting work stoppages, the C. I. O. called a strike at the plant
and established its picket line, resulting in the effective closing of the plant.
This strike continued until June 21, 1946. Meantime, the contract in existence
at the time of the discharges had expired by its own terms on May 31, 1946. On
June 21, 1946, the Respondent and C. I. 0., the latter having been newly certified
by the Board, completed the negotiation of a new contract which contained a
provision similar to the corresponding provision in the former contract, and
reading as follows :
The "Company" agrees that all employees who are now members of the
"Union" shall as a condition ofemployment remain members of the "Union"
in good standing for the term of this "Agreement," and that all new em-
ployees hired by the "Company" after the effective date of the "Agreement,"
shall, as a condition of employment, make application for membership in
the "Union," "the day after the employee is hired by the Company."
On June 24, 1946, the employees began to return to work, the maintenance
employees being the first to resume activities. Neither Calhoon nor Carenen
was recalled at that time, although Calhoon as a maintenance welder normally
would have gone back to work with the first crew of maintenance men, and
Carenen, being the operator of the tow-motor hoist which supplied heavy steel
materials from the stock piles to the machines, would also have been in the first
group to be recalled in order to have a supply of steel available at the machines
when production began.
The alleged subsequent reinstatement and discharge of Calhoon and Carenen
Respondent has consistently maintained throughout this controversy and during
the hearing that good standing in the C I. 0 was, on'Marcli 26 and at all times
since then has been and now is, a condition precedent to the reinstatement of
Calhoon and Carenen to their respective employments. Latterly, Respondent
added a second condition to reinstatement, to-wit: that these men waive all
rights to back pay. Such a proposal concerning the waiver of back pay was
made by Respondent to representatives of the Board on at least two occasions, and
on each occasion was rejected by them. On July 23, Respondent wiote to
Calhoon and Carenen as follows :
At the time you called at my home, I informed you that Mr. J Dean
Leffler was handling the matter of reinstatement with the National Labor
Relations Board.
During the week of June 17th, Mr. Leffler told Mr. Keith Blynn, that lie
,was willing to reinstate you at that time without back pay. The same offer
was made today to Mr. Chas. Haeckler, Regional Attorney for the National
Labor Relations Board. P
If you wish to accept this offer, please sign the 72-hour notice and return
as stated. You are to report to your original foreman and job that you
worked before.
Yours very truly,
DURASTEEL COMPANY,
R. C. TITTER,
Plant Manager.
On July 23, Skaggs had advised Calhoon and Carenen to go to the plant and
apply for work. They did so and were told by Titter that letters to them were
DURASTEEL COMPANY 957
in the mail, and that after receipt of such letters, they could come back to
work on July 25. At that time, nothing was said about reestablishing good
standing in C. I. O. or waiving back pay.
When the letters were received by "Special Delivery" the evening of July 23,
they were found to contain a form advising them of the availability of the
jobs and asking them to indicate whether they would accept. Without filling
out the form and without further advice to or from Skaggs, these men reported
at the plant on the morning of July 25 but were met at the door by a delegation
from the C. I. 0 who refused to permit them to enter. They left quietly and
telephoned Titter who asked them to remain available by telephone and promised
to communicate with them after he had made some investigation. During the
day Titter conferred with the C. I. 0 representatives and reached an agreement
that since the plant would only work on Friday and was not in operation on
Saturday, and since this hearing was scheduled to begin on the following
Monday, the C. I. O. would have no objection to the men returning to work for that
one day and then allowing the matter to be disposed of at the hearing. Mean-
time, however, Calhoon and Carenen had conferred with Skaggs and showed him
the July 23 letter and form. He advised them to formally accept reinstatement
but not waive back pay, and typed into the forms, the following
I have no knowledge of any offer of reinstatement before July 23, 1046
I am accepting reinstatement, understanding that the matter of back pay
will be determined by the National Labor Relations Board.
After signing the respective forms with the above notation on it, Calhoon
and Carenen placed them in the mail addressed to Titter. They were received
at his office the morning of July 26 and'promptly were brought to his attention.
Following his agreement on the 25th with C. I 0, Titter telephoned Calhoon
and Carenen and advised them to report for work,the next morning
On Friday, July 20, both men reported, were assigned time cards and set
about the performance of their usual duties At closing time, they punched
out and went home, having received no instructions or comment either as to
membership in C. 1. 0., the waiver of back pay or their return to work.
On Monday and Tuesday, July 29 and 30, Calhoon and Carenen were present
in the hearing room at all times while the hearing was in progress. On Tuesday
afternoon, July 30, while Titter was on the witness stand, having been called
by counsel for the Board, following the amendment of the complaint heretofore
refuued to, he testified that the Respondent had not removed its condition that
these men must be members of the C 1 O. in good standing in order to retain
employment at the plants, and that it was the determination of the Company
that, if they returned to work the following morning without having established
good standing with the C. I 0 they would not be allowed to continue their
employ ment Titter stated that the reinstatement of the men on July 26 had been
an error and a mistake which he was unable to and did not attempt to explain,
but that the men should not have been put to work on that clay or at any other
time, if they continued out of good standing with the C I 0, and would not,
be allowed to work unless they reestablish such good standing
From the foregoing it is found that neither Calhoon nor Carenen was in fact
actually reinstated on July 26 or any other time, and that Respondent has at all
times since March 26, 1946, refused to reinstate either of them until and unless
they shall acquire good standing in the C. I O. as provided for in the contract in
existence at the time of their discharge and as provided in the present contract.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further found that by the above conduct, Respondent has discriminated as
to the hire and tenure of employment, and conditions of employment of Calhoon
and Careneh, thereby discouraging membership in the A. F. of L. and encouraging
membership in the C. I. 0. and has further interfered with, restrained and
coerced its employees in the exercise of the rights guaranteed them in Section 7
of the Act.
The present status of Calhoon and Carenen
It is conceded by the C. I. 0. that neither Calhoon nor Carenen is or at any
time since March 26, 1946, has been a member of the C. I. 0. Since it has been
found that they were discriminatorily discharged and have at all times since
then been discriminatorily refused reinstatement, their status as employees has
not been impaired and upon their reinstatement which will be recommended, they
will be reinstated in the status of old employees with all seniority rights and privi-
leges the same as though there had been no interruption in their active employ-
ment. Since the current contract provides only for maintenance of membership
of employees of Respondent who were members of the Union at the time the
contract was entered into (June 21, 1946), and also provides that new employees
shall make application for membership immediately after their employment, it is
observed that they were not members at the time the current contract was
extended, and will not return as new employees, and that therefore, the new
contract will be inapplicable to them insofar as it contains any provision malting
membership in good standing in the C. I. 0. a condition of employment.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I
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 Respondent has engaged in unfair labor practices , it will
be recommended that Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent has discriminatorily discharged Cal-
hoon and Carenen at the request of the C. I. 0. pursuant to the provision of
a contract which makes membership in good standing in the C. I. 0. a condi-
tion of employment , but at a time when employees are entitled , notwith-
standing such contract provision , to exercise their right to change or attempt
to change their bargaining representative without incurring the penalty of
being disqualified for employment , it will be recommended that Respondent
offer to Calhoon and Carenen , immediate and full reinstatement to their
former positions or to substantially equivalent employment , without loss of
seniority or any other rights or privileges that would have accrued to them
had there been no interruption in their actual active employment, and to
make the said Calhoon and Carenen whole for any loss of wages they may
have suffered between the date of such discriminatory discharge and the offer
of reinstatement , by the payment to them of a sum of money equal to that -
DURASTEEL COMPANY 959
which they normally would have earned in the employment of Respondent
(luring said period, less their net earnings ,' if any , during said period
Since it has been found that Calhoon and Carenen were not, in fact, re-
instated on July 26, 1946, it follows th-' they could not have been discharged
on July 30, 1946 , from employment they never held. It will accordingly be
recommended that the allegations of the amended complaint concerning such
discharge be dismissed.
In computing the back pay to be paid to Calhoon and Carenen, it is to be
observed that betiveen April 4, 1940 and June 24 , 1946 , the plants of Respond-
ent were out of operation clue to a strike initiated by the C. I. 0. and that
during said period neither of these men reasonably could have been employed
by Respondent , so that said period will not be taken into consideration
Likewise , earnings by them (luring such period will similarly be disregarded
in the computation of net earnings
Since it has been found that the jobs performed by these men were - the first
jobs normally to become active upon the opening of the plant on June 24, 1946,
back pay will be computed from March 26 to April 4 , 1946, and from June
24, 1946 , to the date of the offer of reinstatement
It will further be recommended that Respondent post notices hereinafter
described , at appropriate points where notices to employees ordinarily are
posted in each of its plants in Hannibal , Missouri
Normally in cases in which an employer has unlawfully discriminated against
employees by discharge , in addition to affirmative relief , it is recommended
that the employer cease and desist from in any planner infringing upon the
rights guaranteed in Section 7 of the Act. However, in the instant case, the
Respondent discharged the two employees here involved , not to satisfy an illegal
purpose of its own, but rather in conformity with a mistaken concept of this
obligation under its contract with the C I. 0. Under such circumstances,
and in view of the absence of any evidence that the danger of the commission
of other unfair labor practices is to be anticipated from the Respondent's con-
duct in the past, it will not be recommended that Respondent be enjoined from
the commission of any and all unfair labor practices The recommendation
will be confined to one that Respondent cease and desist from the unfair labor
practices found.'° Nothing in these recommendations shall be taken to prescribe
conduct of Respondent which is protected by the proviso of Section S (3) of
the Act.
° By "net earnings " is meant earnings less expenses , such as for transportation, room,
and hoaid. incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which nould not have been incurred but for his unlawful dis-
chaige and the consequent necessity of his seeking employment elsewhere See Mattel of
Crossett Lumber Company , S N L R B 440 Monies received for work performed upon
Federal, State, county, municipal, of other work-relief projects shall be considered as
eanungs See Republic Steel Corporation v N L R B, 311 U. S 7
10 During the course of the hearing, several witnesses testified and the chairman of the
Trial Committee of the C I 0 confirmed, that at the time charges were filed against Cal
hoon and Carenen, identical chaiges were filed against a large number of other employees
of Respondent , almost all of whom were found guilty in sonic degree and were penalized
by fines in varying amounts together with orders of probation or suspension. It has been
indicated by those witnesses who testified, that at least a portion of the employees against
whom such fines were imposed have refused to pay their Since these penalties arose out
of the same geneial line of conduct which gave rise to the expulsion of Calhoon and
Carenen, Respondent is enjoined to observe scrupulous caie in the event other demands are
made by the C I 0 for the discharge of employees because of their failure to maintain
739926-47-vol 73-62
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findiags of fact and upon the entire record the
undersigned arrives at the following:
CONCLUSIONS OF LAW
1 American Federation of Labor and Affiliated International Unions, and
United Steelworkers of America, C I 0, are labor oiganizations within the
meaning of Section 2 (5) of the Act.
2. By discriminating against B. L. Calhoon and Alfred L. Carenen in dis-
charging them and refusing thereafter to reemploy them under the circum-
stances heretofore set out, at the request of United Steelwoikers of America,
C. I 0, because they had failed to maintain membership in good standing
° in that organization by reason of having been expelled on account of their
activities on behalf of the American Federation of Labor and Affiliated Inter-
national Unions, at a time when it was their privilege so to do under the pro-
visions of the Act, Respondent has engaged in and is engaging in an unfair
labor practice within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act by the conduct above set
forth, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act
4 The unfair labor practices above described are unfair labor practices within
the meaning of Section 2 (6) and (7) of the Act
RECOMMENDATIONS
On the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record herein, the undersigned recommends that Respondent,
Durasteel ,.Company, of Hannibal, Missouri, its officers, agents, successors, and
assigns shall:
1 Cease and desist from
(a) Discouraging membership in American Federation of Labor and Affiliated
International Unions, or any other labor organization, or encouiaging member-
ship in United Steelworkers of America, C. I 0, or any other labor organization,
by dischaiging or refusing to reinstate any of its employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of employment,
or any term or condition of employment, because of their failure to maintain
membership in good standing in a labor organization, except insofar as said
conduct is protected by the proviso to Section 8 (3) of the Act.
2. Take the following affirmative action which will effectuate the policies of
the Act :
(a) Offer to B L Calhoon and Alfred 1. Carenen immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges;
(b) Make whole the said B L Calhoon and Alfred L Carenen for any loss
of pay they may have suffered by reason of Respondent's discrimination against
them, by payment to each of them of a sum of money equal to that which each
good standing in that oiganizalion, to exhaust reasonable inquiry as to the cause of such
loss of good standing, and to refiain from complying with such demands in the event they
arise out of the failure of such employees to pav the fines imposed as above set out, or
from any other act or circumstances originating in their designation of, affiliation with, or
membership in the A F of L , or their suppoi t of the A F of L at any time between
February 21, 1946, and June 21, 1946, the (late of the execution of the ciurent contract
n
DURASTEEL COMPANY 961
normally would have earned as wages from the date of Respondent's discriuu-
nation against them, to-wit, March 26, 1946 to and including April 4, 1946, and
from June 24, 1946 to the date of Respondent's offer of reinstatement, less his
net earnings , if any, during such periods ;
(c) Post immediately in both its plants at Hannibal, Missouri, copies of the
notice attached hereto and marked "Appendix A." Copies of said notice, to
be furnished by the Regional Director for the Fourteenth Region, shall, after
being duly signed by Respondent's representative, be posted by Respondent im-
mediately upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fourteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report and
Recommendations, what steps Respondent has taken to comply therewith.
It is recommended that the allegation in the amended complaint to the effect
that respondent discriminatorily discharged Calhoon and Carenen on July 30,
1946, be dismissed
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring Respondent to
take the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring this case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C , an original and four copies of a
statement in writing, setting forth such exceptions to the foregoing Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he ielies upon, together with the original and four
copies of a brief in support thereof Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director As fuither 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. Any party desiring to
submit a brief in support of the Intermediate Report shall do so within fifteen
(15) days from the date of the entry of the order transferring the case to the
Board, by filing with the Board an original and four copies thereof, and by
immediately serving a copy thereof upon each of the other parties and the
Regional Director.
R N DENHAMM.
Trial Examiner.
Dated August 20, 1946.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
No-rica To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Libor Re-
lations Act, we hereby notify our employees that :
We will not discourage membership in American Federation of Labor
and Affiliated International Unions, or any other labor organizations, or
encourage membership in United Steelworkers of America, C I. 0, or any
other labor organization of our employees, by discharging or refusing to re-
instate any of our employees or by discriminating in any other manner in
regard to their hire or tenure of employment, or any teiin or condition of
their employment, because of their failure to maintain membership in a
labor organization, except insofar as said conduct is protected by the proviso
to Section 8 (3) of the National Labor Relations Act.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination
B L Calhoon
Alfred L. Carenen
DURASTEEL COMPANY,
Employer.
Dated------------------- By--------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered, defaced, or covered by any other material.