Lancaster Iron Works, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1940

20 N.L.R.B. 738 (N.L.R.B. 1940)

In the Matter of LANCASTER IRON WORKS, INC. and AMALGAMATED ASSOCIATION OF IRON , STEEL AND TIN WORKERS OF NORTH AMERICA, LODGE #1035 Case No. C-651-Decided February 03, 1940 Steel Products Manufacturing Industry-Discrimination : discharges : for union membership and activity ; charges of, sustained ; presence of proper causes at time of discharge not conclusive in determining , since issue is whether such causes in fact induced the discharge or whether they are a justification of it in retrospect-Interference, Restraint , and Coercion: expressed opposition to outside organization by supervisory ofiiicials ; discharge of union officials 3 days before affiliation with national labor organization ; open circulation of petition in plant during working hours seeking withdrawal of membership in outside organization ; institution of injunction proceedings by several employees, with aid of employer , impounding union funds after affiliation with national labor organization-Company-Dominated Union: domination of and interference with formation and administration ; election in plant ; conduct of ballot by em- ployer; financial and other support; disestablished, as agency for collective bargaining-Check-off: for company-dominated union; employer ordered to re- imburse employees for amounts deducted from earnings as dues in company- dominated union-Contracq : with company-dominated union, supplemented by closed -shop and check-off provisions, void and of no effect ; employer ordered to cease giving effect to-Strike: result of and prolonged by employer's unfair labor practices-Discrimination: unfair labor practice strikers : discharge by conditioning reinstatement upon membership in company-dominated union through illegal oral closed-shop contract with such union ; by requiring approval of company -dominated union for reinstatement ; by blacklisting through com- pany-dominated union-Reinstatement Ordered: discharged employees ; strikers : application for reinstatement not prerequisite to order requiring , in view of employer's unlawful conduct-Back Pay: awarded to employees discriminatorily discharged ; to strikers , from date of discrimination to date of offer of reem- ployment or placement on preferential list-Unit Appropriate for Collective Bar- gaining: all employees , excluding salaried and supervisory employees ; history of collective bargaining relations in plant-Representatives : proof of choice : stipulation as to, based on comparison of membership cards with pay roll ; em- ployer claims certain employees ceased being members prior to request to bar- gain ; employees ' testimony concerning renunciation of union membership dis- credited by acts indicating continued membership and by coercion of employer including requirement of membership in company -dominated union as condition of employment-Collective Bargaining: refusal to answer requests to bargain ; recognition of company-dominated union as exclusive bargaining representative ; employer ordered to bargain with union, upon request. Mr. Jack Davis, for the Board. Mr. M. H. Goldstein, of Philadelphia, Pa., for the Amalgamated. Mr. S. R. Zimmerman, of Lancaster, Pa., for the respondent. Mr. Harold E. Martin, of Lancaster, Pa., for the Intervenor. Mr. A. J. Toth, of counsel to the Board. 20 N. L. R. B., No. 73. 738 LANICASTER IRON' WORKS, INCORPORATED DECISION AND ORDER 739 STATEMENT OF THE CASE Upon a charge duly filed by Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge #1035, herein called Amalgamated, and an amended charge duly filed by Steel Workers Organizing Committee, herein referred to as the S. W. O. C., on behalf of Amalgamated, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued a complaint dated November 30, 1937, against Lancaster Iron Works, Inc., Lancaster, Pennsylvania, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Amalgamated, and the Iron Worker's Union, herein called the I. W. U., a labor organization of the resondent's employees. The complaint. alleged in substance: (1) that the respondent, on August 26, 1936, discharged and thereafter refused to employ Philip Hahn, Edward J. Walton, and Roy Constine for the reason that said employees and each of them had joined and assisted the Amalgamated • and engaged in concerted activities for their mutual aid and protec. tion; (2) that in or about August 1936 and February 1937,.the re- spondent caused notices and petitions to be posted on its bulletin boards and circulated and distributed among its employees, discourag- ing them from becoming members of the Amalgamated ; (3) that in February and March 1937, and at all times thereafter, the respondent dominated and interfered with the formation and administration of a labor organization of its employees known as the Iron Worker's Union, and contributed financial and other support thereto; (4) that on or about February 18 and March 2, 1937, and at all times there- after, the respondent refused to bargain collectively with the Amal- gamated as the exclusive representative of a majority of its employees in an appropriate unit; (5) that on March 8, 1937, as a result of the aforesaid and other acts of the respondent, many employees of the respondent went on strike, and thereafter the respondent refused to reinstate and employ 44 named employees because of their member- ship in and affiliation with the Amalgamated and because they en- gaged in concerted activities for their mutual aid and protection, the respondent thereby discriminating in regard to the hire and tenure 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment of these persons and-discouraging.. Membership in,the Amalgamated; and (6) that the respondent by its refusal to rein- state and employ the said striking employees, and by other acts and means since March 8, 1937, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On December 7, 1937, the I. W. U. filed a motion to intervene. The motion was granted by the Regional Director with the .reservation that the intervention be confined to matters relating solely to that portion of the complaint alleging a violation of Section 8 (2) of the Act. On December 8, 1937, the I. W. U. filed its answer, denying the material allegations of the complaint. On December 8, 1937, the respondent filed its answer to the com- plaint, in which it denied the allegations of unfair labor practices but admitted that it had refused to bargain with the Amalgamated on the dates alleged in the complaint, alleging affirmatively that the Amalgamated did not, on February 18, 1937, or on March 2, 1937, or at any time thereafter, represent a majority of its employees. Pursuant to notice, a hearing was held in Lancaster, Pennsylvania, from January 17 through February 8, 1938, before William P. Webb, the Trial Examiner duly designated by the Board. The Board, the respondent, the Amalgamated, and the I. W. U. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties, subject, in the case of the I. W. U., to the reservation noted above. At the commencement of the hearing, counsel for the Board moved to amend the complaint to include the name of Lurty . Thompson, alleging that he was discriminatorily discharged by the respondent on March 4, 1936. The Trial Examiner allowed the motion. The, respondent waived formal notice of, the amendment and entered a general denial. During the hearing, the Trial Examiner, over the objection of the respondent, granted the Board's motion to amend the complaint to include the name of Harry G. Eisenberger. Counsel for the Board also moved to dismiss the allegations of the complaint in so far as they related to Elvin Gable, Edward Dengler, Eugene Danz, John Riesinger, George Swiverling, and Lloyd Waller,' on the ground that they failed to appear at the hearing. This motion was granted. At the close of the hearing, the Trial Examiner granted the joint motion of counsel for the Board, the respondent, and I. W. U_ to amend the pleadings to conform to the evidence. The foregoing rulings of the Trial Examiner are hereby affirmed. Numerous other 1 These six individuals were employees who had participated in the strike of March 8, 1937. LANICAST'E'R IRON, WORKS, INCORPO'RATED 741 rulings,on;motions:,and;on objections to..the.adniission of evidence were made by the Trial Examiner during the hearing. The Board has reviewed these rulings and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On May 14, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all parties, finding that the re- spondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6)- and (7) of the Act, -and.recommending-.that the respondent cease and desist therefrom and take certain affirmative action to remedy the situation brought about by the unfair labor practices. The Trial Examiner further recommended that the com- plaint be dismissed without prejudice in respect to Charles Sallade and Harry Rahm.2 The respondent and the I. W. U. each filed exceptions to the Intermediate Report. In its exceptions the I. W. U. moved to reopen the record to take the testimony of Harold Landis who was unavailable at the time of the hearing because of serious illness.3 The motion is hereby denied. On December 1, 1938, pursuant to notice duly served upon the respondent, the I. W. U. and the Amalgamated, a hearing was held in Washington, D. C., for the purpose of oral argument. The respondent appeared by. counsel and presented oral argument to two members of the Board. On June 13, 1939, the parties were granted an opportunity to request further oral argument. Pur- suant to notice to all parties, further oral argument, at which the re- spondent appeared, was held before the Board on July 27, 1939. The respondent filed a brief which has been considered by the Board. The Board has reviewed the exceptions of the respondent and the I. W. U. to the Intermediate Report and, save as they are consistent with the findings, conculsions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 4 Lancaster Iron Works, Inc., a Pennsylvania corporation, with its office and principal places of business in Lancaster, Pennsylvania, is engaged in the manufacturing, selling, and distributing of iron and steel products. 2 Two individuals who participated in the strike of March 8, 1937. The I. W. U. asserted in its motion that Landis' testimony would be material on the preparation and 'circulation of a -petition in September -1936 , for the withdrawal of em- ployees from . membership in the Amalgamated and on the formation of the Iron worker's Union, both of which are discussed infra. Although afforded the opportunity the I. W. U. did not appear at either oral argument in support of its motion . Upon the showing made and upon the basis of our subsequent findings . we do not find the testimony offered suffi- ciently material to warrant reopening the record. ' The findings in this section are based upon a stipulation of facts. 283031-41-vol. 20-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principal raw materials used by the respondent in the course of its business consist of steel plates, bolts, nuts, rivets, machinery parts, structural steel members of all kinds, electrical equipment, pig iron, coke, sand, and other supplies generally used in the steel-fabricating industry. The respondent expended approximately $600,000 for the purchase of raw materials in 1936, and approximately $750,000 in 1937; approximately 35 per cent of said raw materials are purchased by the respondent outside the State of Pennsylvania. . The respondent's annual production of manufactured products amounted to approximately $1,200,000 for the year 1936, and approxi- mately $1,500,000 for the year 1937.. Approximately 85 per cent of said manufactured products were shipped by the respondent to States other than the State of Pennsylvania and foreign countries. The respondent normally employs between 200 and 250 employees in its plant. The respondent's Lancaster works consists of three large divisions, the south plant, north plant, and foundry. For the purposes of this decision, however, the plant will be divided into four divisions, the south plant, north plant, machine shop, and foundry. II. THE ORGANIZATIONS INVOLVED The New Deal Brotherhood was a labor organization, admitting to membership all employees of the respondent, except foremen and salaried employees. Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge #1035, is a labor organization affiliated with the Com- mittee for Industrial Organization,5 admitting to membership all pro- duction and maintenance employees, except salaried employees, road- men, watchmen, trucking and clerical employees, and supervisory em- ployees such as foremen, assistant foremen, and gang bosses. Iron Worker's Union is an unaffiliated labor organization, admitting to membership all production and maintenance employees of the re- spondent, including gang bosses, roadmen, watchmen, truckmen, and clerical employees on the various plant floors, and excepting super- visory employees and clerical employees working in the main office. III. THE UNFAIR LABOR PRACTICES A. Background-The Brotherhood Prior to April 1934, no labor organization existed in the respondent's plant. At that time, the New Deal Brotherhood, herein called the Brotherhood, was formed among the production and maintenance employees of the respondent. 5 Now the Congress of Industrial Organizations. LAN!CAS'TER IRON' WORKS, INCORPORATED 743 In the fall of 1934 and in the early part of 1935 the Brotherhood met with the respondent on a number of occasions in an effort to secure an adjustment of wage scales and other conditions of work. The Brotherhood did not obtain the adjustments desired and, as far as the record discloses, the effort was temporarily abandoned after the early months of 1935. With the passage of the Act on July 5, 1935, the Brotherhood re- newed its attempt to reach an accord with the respondent on. the same issues. On September 12, 1935, the respondent discharged Clarence Trout, a foundry-shop committeeman for the Brotherhood. On Sep- tember 30, 1935, Lloyd C. Boatman, the Brotherhood's recording sec- retary, personally delivered to W. W. Posey, the respondent's president, a letter from the Brotherhood signed by himself and other individuals. The letter stated in part that the respondent, contrary to a prior understanding between the respondent and the Brotherhood, had in- stituted certain voluntary increase without reference to the Brother- -hood's proposal for the general standardization of wage rates after submission to and approval by the Brotherhood; that the respondent's action' had been rejected by the Brotherhood and concluded with an intimation of concerted action "in case of any unjust discrimination against any member." The respondent discharged Boatman that after- noon. Thereafter, charges were filed by the Brotherhood with the Regional Director of the Board, alleging the discriminatory-discharge of Boatman and Trout. On December 14, 1935, by stipulation of the parties, both Boatman and Trout were reinstated by the respondent..' On March 4, 1936, the respondent discharged Lurty Thompson,' a member of the executive committee of the Brotherhood: The Brother- hood requested the respondent to reinstate Thompson and the respond- ent refused. In protest against the respondent's refusal to reinstate Thompson, the Brotherhood called a strike on March 18, 1936, which resulted in a complete shut-down of the plant. Federal and State Labor Department representatives intervened to settle the strike 8 The strike ended on March 25, 1936, upon the negotiation of a contract between the Brotherhood and the respondent in which the respondent agreed to recognize the Brotherhood as the exclusive representative of its employees for the purpose of collective bargaining for a period G These discharges are not in issue under the pleadings and we make no findings with respect to the reasons for them. ° The allegedly discriminatory discharge of Thompson is considered in detail in Section III B 1 infra. 8 The respondent 's attitude toward the Brotherhood is revealed by the statement of Posey, president of the respondent , during one of the settlement conferences , that "if he [Posey] knew it was going to be this kind of a union he would . have broken it up long ago." Posey denied the statement but it is fully consistent with his attitude as revealed by his other actions discussed herein and with the attitude attributed to him by Scbiding, superintendent of the north plant, in a conversation with one Scully , discussed in Section III B 2 infra. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of 1 year. The contract provided for automatic yearly renewal unless; within 30 days prior to any expiration date, notice was given by either- party of a desire to terminate it. The contract also provided that the. matter of the discharge of Lurty Thompson be submitted to the Re- gional Office of the Board for decision and that the respondent would- abide by such decision. During the period from March 25 to August 1, 1936, negotiations. were carried on between the Brotherhood and the respondent on vari- ous matters, -including, the, .demand ..for a .uniform wage -scale. The respondent rejected the uniform scale of wages proposed by the Brotherhood but, instead, without consulting the Brotherhood and con- trary to its demands, about July 1, 1936, announced a 5-per cent in- crease in wages effective August 1, 1936. During its negotiations with. the respondent for a uniform wage scale, the Brotherhood continually sought the reinstatement of Lurty Thompson. On or about June 4,. 1936, a conference with regard to the reinstatement of Thompson was. held in the Regional Director's office of the Board in Philadelphia,, in which the respondent and the Brotherhood participated, but no, decision was reached. On August 4, 1935, the Brotherhood solicited the aid of William D. Liller, conciliator for the U. S. Department of' Labor, and Frank L. Bowden; a representative of the Department of Labor of the State of Pennsylvaniii' both of whom had participated in the settlement of the strike of March 18, 1936, and in the negotiation, of the contract of March 25, 1936, in securing performance of the= agreement by the respondent, particularly with respect to a settlement. of Thompson's case. The conciliators met with the respondent but. were unable to- arrange any settlement. At this time, the executive committee of the Brotherhood decided. to affiliate with a national labor organization and communicated with. the officials of the Steel Workers Organizing Committee, herein called the S. W. O. C.,9 affiliated with the Committee for Industrial Organiza- tion. On August 16, 1936, representatives of the S. W. O. C. met with. the officials of the Brotherhood to discuss the proposed affiliation.. Philip C. Hahn, Edward J. Walton, and Roy E. Constine, the presi- dent, vice president, and corresponding secretary, respectively, of thee Brotherhood were active in making plans for the affiliation. From. August 12 to August 16, 1936, organizational work for the purpose: of bringing about the affiliation was carried on among the employees.. On August 23, 1936, Clinton L. Golden, the regional director of the., S. W. O. C., went to Lancaster and completed the details of the affilia- tion of the Brotherhood with.the Amalgamated. Notices of a special' 9 S. W. 0. C. is an organizing committee for the Amalgamated Association of Iron, SteeP and Tin workers of North America , and has power to handle all matters relative to the- organizing campaign , other than the issuance of charters. LAN'CAST'ER IRON ' WORKS, INCORPORATED 745 mieeting to be held on August 29, 1936, were sent to all the members of the Brotherhood. On August 26, 1936, 3 days before the affiliation took place, the respondent discharged Hahn, Walton, and Constine.10 At the meeting on August 29, 1936, the Brotherhood voted 11 to affiliate .with the Amalgamated and thereafter was known as Lodge #1035. B. The discharges 1. The discharge of Lurty Thompson Thompson began to work in the foundry of the respondent's plant 'on October 24, 1927, as a chipper and oiler, and worked continuously thereafter until the date of his discharge on March 4, 1936, at which time he was receiving 48 cents per hour for a 45-hour week. In 1934, upon the recommendation of Cyrus Memminger, the foundry mana- ger, Thompson received an increase in wages and was promoted to the position of gang leader in charge of sand blasting, chipping, grinding, :and the inspection of castings:.. Thompson joined the Brotherhood in September 1934, and was an :active leader in its affairs. After organizing the employees in the foundry, he served as chairman of the foundry-shop committee and a, member of the Brotherhood executive committee. After several conferences between the respondent and the Brotherhood executive committee, attended by Thompson as a member of the Committee, ,on or about September 13, 1935, the respondent agreed to a 44-hour week and the abolition of overtime work. Thereafter, the respondent confirmed this agreement by letter stating that overtime would not be compulsory. Notwithstanding this agreement, many of the employees were made to work overtime without extra pay. Because of the re- spondent's failure to abide by the agreement the Brotherhood passed a resolution at a regular meeting held on March 2, 1936, prohibiting its members from working overtime unless time and a half the hourly rate was paid. On the day following the Brotherhood meeting, Thompson and Henry Young, a fellow employee, in accordance with the resolution, instructed the men in the foundry as they came to work that they were not to work overtime. Thompson's regular hours of employment were from 8 a. in. to 5 p. in. However, it was part of his duties to arrive at the foundry at 7 a. m. once a week to oil the machinery before the other employees arrived at 8 a. in., and this was generally done on Wednesday. He received no compensation in addition to the regular hourly rate of pay for this extra work and often did not receive that in full because no accurate record was kept of his time. The day after the Brotherhood's 10 These discharges are considered in detail in Section III B, 2, infra. u Approximately 121 members present voted unanimously for the affiliation. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolution regarding overtime, Thompson notified his foreman, Allen Heagy, that he would be unable to. do the oiling the next morning, which was the regular oiling day, unless he received time and a half for this extra hour of work and asked if it was going to be paid. Heagy stated that he understood that time and a half would not be paid and referred Thompson to Walter Haun, the superintendent, and Cyrus Memminger, the. foundry manager. Thompson then saw Haun and told him what he had told Heagy. Haun suggested that Thompson take 2 hours off for lunch so that he would not be working more than 8 hours. Thompson told Haun that Posey had agreed to overtime and working hours from 8 a. m. to 5 p. m.; that he [Thomp- son] could not stay in the foundry 10 hours to get in 8 hours' work; and that it would be difficult for him to go home for lunch and return for work in the afternoon because he lived about a mile from the foundry. The conversation ended with Haun stating that he would get someone else to do the oiling in his place. Thompson reported for work the following morning, Wednesday, March 4, 1936, at 8 o'clock. About 15 minutes later, Memminger ap- proached Thompson and asked him if he had oiled the machinery. Thompson advised Memminger that Haun had stated to him the day before that someone else would be delegated to do the oiling in his place. Memminger replied that he 'did not believe that Thompson had received. any such instructions from Haun and that the respondent "can't put up with this stuff any longer." He then instructed Thomp- son to change his clothes and stated, "I will go down to the office and get your money," thus indicating that Thompson was discharged. When Thompson received his check he was required to sign a dis- charge slip. No reason for his discharge appeared on the slip. The respondent thereafter refused to reinstate Thompson.12 The respondent contends that Thompson's conduct was unsatisfac- tory over an extended period of time and that he was discharged when he refused to perform his regular duty as an oiler. Iii support of its contention concerning Thompson's past conduct, Memminger testified in substance that beginning in 1933 Thompson became "argumentative and arrogant toward everybody," was rude and insolent toward his foremen, and "overbearing toward his fellow workers"; that because this attitude on Thompson's part continued, in 1934 he increased Thompson's wages and promoted him to the posi- tion of gang leader in order to give him more responsibility and "some- thing more to think about." Continuing his testimony, Memminger stated that Thompson became "worse" when made chairman of the 12 The strike of March 18, 1936, and other efforts to secure his reinstatement were dis. cussed in Section III A , supra. LAWAST'ER IRON! WORKS, INCORPORATED 747 Brotherhood shop committee in the foundry.,," In explaining this statement Memminger testified that the committee would come into the office nearly every 'day *to make a complaint and on these occasions Thompson "would do all the talking." Memminger cited a number of particular incidents illustrating Thompson's asserted misconduct. He referred to an instance in September 1935 when the Brotherhood executive committee had met with Posey and had secured permission for the employees to smoke in the plant while engaged in their work. According to Memminger, Thompson incurred his displeasure at that time because when he refused to permit smoking in the wood-pattern shop of the foundry, notwithstanding the grant of this privilege by Posey, Thompson then took the matter up with Major, general super- intendent at that time, without first receiving permission from his foreman to leave his place of work. Another instance involved an employee named Chambers who, Memminger claimed, had quit the respondent's employ in December 1935 because he could not work with Thompson. Another instance occurred in February 1936 when Thomp- son refused to work overtime to take care of the air compressor. The testimony of the respondent's officials, Memminger and Haun, was in substantial agreement with Thompson's concerning the immediate circumstances surrounding his discharge, except that the respondent's officials apparently did not agree that Haun had informed Thompson On March 3 that another employee would be assigned to do the oiling on the next morning. 14 In order to determine whether or not Thompson's discharge was discriminatory we do not deem it necessary to decide whether his refusal to do the work was justified by an existing agreement 15 be- tween the respondent and the union concerning overtime. For even if such refusal was not justified, we are satisfied upon the record that. Thompson was not discharged by the respondent for the reasons as- signed by it. On the very afternoon that Thompson notified his superiors that the Brotherhood required the payment of time and a half for overtime, another foundry employee, John Steffie, also re- fused to work overtime and was not discharged. Moreover, the re- spondent's officials well knew that Thompson was acting in accord- ance with the Brotherhood's interpretation of its agreement of Sep- tember 1935 with the respondent 11 and was not wilfully insubordinate. >s This occurred during the latter part of 1934. 14 Hann did not specifically deny Thompson 's assertion to that effect. 1' Posey claimed that no agreement for the payment of time and a half for overtime then existed between the respondent and the Brotherhood and that in any event Thompson' discharge was not a matter of overtime because an employee who worked only 8 hours,in 1 day, even though not consecutively , would not be working overtime.' 19 Posey claimed that the Brotherhood had not notified him of its resolution of March 2, 1936, regarding overtime prior to Thompson 's discharge . However, it is plain that both Haun and Memminger knew fully the reason for Thompson 's action. Further , the respond- ent persisted in its refusal to adjust Thompson 's case. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances, a discharge was not a normal method of resolving a misundertanding concerning the proper scope and inter- pretation of the agreement. Other considerations influence our deter- mination concerning the motivation for Thompson's discharge. Thompson had been in the respondent's employ continuously for 81/2 years and in 1934 had been given a wage increase by Memminger and had been promoted to the position of gang leader.17 He was the chairman of the foundry-shop committee and one of the Brotherhood's most aggressive members.- He was one'of-the two "employees' who- on March 3, the day before his discharge, advised the Brotherhood mem- bers as they came to work not to work overtime in order to give effect to the Brotherhood's resolution of March 2 on that subject. It is ap- parent from Memminger's testimony that Thompson's disfavor with the respondent's officials was coincident with his activity on behalf of the Brotherhood. The many instances of asserted misconduct on Thompson's part were not considered by the respondent to be of such a serious nature as to warrant his discharge or any other form of disciplinary action at the time of their commission, but, were only revived by the respondent's officials when they were seeking to justify his discharge.," We are of the opinion that Thompson's leadership in the Brotherhood made him objectionable to the respondent and that when an apparent opportunity for discharging him presented itself on March 4, 1936, the respondent readily seized upon it as a pretext to conceal its actual motive for his dismissal. We find that the respondent discharged Lurty Thompson on March 4, 1936, because of his membership and activity on behalf of the Brotherhood, thereby discouraging membership in a labor organiza- tion and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Between' the date of his discharge and the date of the hearing, Thompson ob- tained temporary employment from various concerns in Lancaster, tained temporary employment from various concerns in Lancaster, 4, 1937, was employed by Anchor Packing Company, located in Man- heim, Pennsylvania. He earned a total of $1041.31 from the date of his discharge to the date of the hearing. At the time of the hearing, Thompson was temporarily employed by W. H. Winstead Company. He desires to return to his former position in the employ of the respondent. 17 We cannot accept Memminger's explanation that this action was taken as a corrective measure because of the fact that in 1933 Thompson became "argumentative and arrogant toward everybody." 18 Posey admitted at the hearing that he had heard no objections to Thompson's work prior to his discharge and both Memminger and FIaun admitted on cross -examination that Thompson was "a good worker. Mem'minger also highly recommended Thompson for employment with Lancaster Malleable Castings Company after Thompson 's discharge. LANCASTE'R IRON WORKS, INCORPORATED' : 749 2. The discharge of the three Brotherhood officials Philip C. Hahn ,.Edward J. Walton, and Roy E. Constine, the presi- dent, vice president, and corresponding secretary, respectively, of the Brotherhood, were discharged by the respondent on August 26, 1936, 3 days before the affiliation of the Brotherhood with the Amalgamated. Hahn began to work in the machine shop of the respondent's plant on April 1, 1912, worked intermittently until 1920, and continuously thereafter until his discharge, at which time he was doing general maintenance work, receiving 63 cents per hour for a 44-hour week. Hahn was at all times a satisfactory and efficient worker. He joined the Brotherhood in 1934 and was one of its most active members. He was elected president of the Brotherhood after the suspension of Walter Landis in May 1936 and was serving in that capacity at the time of his discharge. Prior to his election as president of the Brother- hood he was a member of the shop committee and attended the con- ferences between the Brotherhood and the respondent. At one of these conferences held in June 1936, approximately 2 months before Hahn's discharge, Posey, the president of the respondent, struck his desk with his fist and exclaimed, "If you fellows want to carry on like this and jeopardize your jobs, go ahead." Together with Constine and Walton, Hahn was primarily responsible for the affiliation of the Brotherhood with the Amalgamated. On or about August 14, 1936, Stambaugh, the general superintend- ent of the plant called Hahn aside from his work and asked him if he had been going into the plant at night and interfering with men at work. Hahn explained to Stambaugh that he had been going into the plant to get Brotherhood checks countersigned by the treasurer who worked on the night shift, denied that he had interfered with anyone at work, and added that he had never been prohibited from going into the plant at night during his many years of service with the respondent. Stambaugh replied, "I don't know how Mr. Posey is going to take this." This ended the conversation. Hahn did not go into the plant again at night after this conversation with Stam- baugh although the latter did not instruct him against doing so. Two weeks later, on the afternoon of August 26, 1936, Hahn was summarily discharged by Stambaugh, along with Walton and Constine. The next morning Hahn returned to the plant and asked Posey, the president of the respondent, the reason for his discharge and requested reinstatement. Posey replied that Hahn was discharged for "coming in the plant." Hahn then explained that he went into the plant at night to obtain the. signature of the treasurer of the Brotherhood to some checks and that lie had frequently done this. without complaint by any of the respondent's supervisory officials. Posey acknowledged this to be true and Hahn stated, "Then why 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pick on me now?" Posey's reply to this was : "You know, Phil, them signs that you carried hurt me." This remark had reference to the activity of Hahn in carrying signs on the picket line during the strike of March 18, 1936. Posey also remarked to Hahn that he was "sur- prised to see that a labor organization like this [the Brotherhood] should spring out of a social organization." Nothing further was said and Hahn then left the office and made no further efforts to obtain reinstatement. The respondent contended at the hearing that Hahn was'discharged for going into the plant at night and interfering with production. In support of this contention Stambaugh testified that Hahn and Constine "frequently went into the plant at night interfering with the men and holding them up in their work"; that the night watch- man reported that Hahn and Constine had been warned on several occasions that this was a violation of the respondent's rules and that they had been told to discontinue the practice; and that on one occa- sion Hahn and Constine entered the south plant at night and inter- fered with the work of Norman Young, a welder, for about 1 hour. Stambaugh admitted on cross-examination, however, that lie dis- charged Hahn on rumors or reports that he had received, without making any investigation. Two welders, Young and Henry, called by the respondent to corroborate Stambaugh's testimony, stated that on an occasion approximately a month prior to August 26, while they were working in the plant on the night shift, Hahn and Constine came into the plant and the latter individual engaged Young in a conversation lasting about an hour. Young further testified that approximately 2 weeks after this occurrence Stambaugh questioned him as to why a certain job had not been completed that night and that he had explained to Stambaugh that the work was not completed because Constine had engaged him in the hour's conversation previ- ously adverted to. There was no claim by Young and Henry that Hahn had engaged them in conversation. We are not persuaded that the respondent discharged Hahn, who had been employed for 22 years, for the reason assigned. At the hear- ing Hahn's foreman, William Havercamp, when asked whether Hahn was a "pretty quiet fellow and attended to his business" replied : "That is right, a good man, too." He further testified that he had no com- plaint against Hahn. Similarly, Posey characterized Hahn as "one of our old men" and stated that "such fellows as Hahn were in that group that stuck" with him during the depression. Posey further admitted, on cross-examination, that the only time Hahn got into any difficulty was when he became active in the union in the latter part of 1936. There is no evidence in the record that the purported rule prohibiting employees from entering the plant at night was ever publicized among LANCASTER IRON WORKS, INCORPORATED 751 them. At the hearing, Hahn testified that he made no secret of going into the plant at night to get the signature of the Brotherhood treas- urer on union checks and that for a period of a year and a half before his discharge, he had been doing so without complaint by the re- spondent. Hahn further testified that the occasion for going into the plant at night, referred to by Stambaugh in his conversation with him on August 14, 1936, occurred approximately 6 weeks before the conver- sation took place; that he had remained in the plant only 5 or 10 min- utes, and that he had not been in the plant at night between the time Stambaugh spoke to him on August 14, 1936, and the date of his dis- charge on August 26, 1936. Stambaugh admitted, on cross-examina- tion, that he did not question Hahn as to how long he had been going into the plant at night nor did he say anything further to Hahn be- tween August 14 and 26, 1936. The night watchman, who was the only person who, the respondent claimed, had ever warned Hahn con- cerning his alleged infraction of the rule, was not called to testify in regard to such -warnings and no explanation was' offered by the re- spondent as to why he was not produced. We find that the respondent did not discharge Hahn because of his infraction of a rule prohibiting employees from entering the plant at night. Edward J. Walton entered the respondent's employ on August 2, 1928, as a welder and worked continuously until the time of his dis- charge on August 26, 1936. In May 1936, he received an increase in wages from 47 cents an hour to 54 cents an hour and was earning an average of $25 a week at the time of his discharge. Walton Was active in union affairs. He joined the Brotherhood in May 1934, and from August 1934 until the date of his discharge held the positions of vice president, member of the shop committee, and chairman of the execu- tive board of the Brotherhood. He attended the -conferences of the Brotherhood with the respondent, and was active during August 1936 in securing the affiliation of the Brotherhood with the Amalgamated. No complaints were made about his work prior to March 1936. In this connection, Ray Schiding, superintendent of the north plant, testified at the hearing that Walton "seemed to be all right until he got with Constine on this union stuff after the strike in (March) 1936." Walton was discharged by the respondent allegedly because he used abusive language in the plant. Walton's activity in the affairs of the Brotherhood was well known to the respondent. Walton testified that hardly a week would go by in which the subject of his union activity was not brought up by the superintendent of his department, Ray Schiding. Refreshing his memory from a notebook of the events as they occurred, Walton testi- fied that when the New Deal Brotherhood was first organized and in July 1934, Schiding told him, "You know, if anything goes wrong 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here, you will be the first one to go"; that when pressed for an ex- planation of, this statement , Schiding..replied, "For what you started here"; and that again on April 23, 1936, Schiding spoke to Walton while he was at work in the plant , saying, "Why don't you stop the union activity ? If you do, there will be more money here for you." Walton further testified that on August 4, 1936, Schiding asked him in the plant , "What is the matter with the New Deal Brotherhood?" to which he replied, "Why?" and added , "That's what the men want, the C. I. 0."; that Schiding answered , "Why let a bunch of agitators, a bunch of bums, take your money ?" At the hearing, Schiding testi fled that he could not recall any conversation with Walton on August 4, 1936, and stated generally that he had no conversations with Walton on union matters or activities . In view of Schiding 's statement at the hearing assigning the "union stuff " as the reason for Walton's alleged shortcomings after the 1936 strike , we find that the above statements attributed to him were made by him. Walton further testified that on July 27, 1936 , Stambaugh , the gen- eral superintendent , approached him during working hours and said, "Why don't you let the men work piece -work? You are stopping them from doing piece-work"; that he replied , "I don 't have nothing to do with it. They made a motion to do away with piece-work"; and that Stambaugh declared , "You and your Union will not run this plant." Stambaugh denied having any conversation at any time with Walton about union activities but for reasons hereinafter stated we do not credit his general denial and find that he made the above statements. On August 26, 1936, at about 4: 20 p. in. Stambaugh approached Walton while he was busy at work and told him that he wanted to see him in his office. Upon reaching the office, Stambaugh handed Walton his check and told him that his services were no longer required. When pressed for an explanation for his discharge , Stambaugh re plied, "I told you to stop bothering the men with union activities and calling them names. " Walton denied that he used abusive language or interfered with anyone 's work during working hours . Stambaugh then retorted, "Well, you are through , get out." Walton then asked if anything was wrong with his work and Stambaugh replied, "No, your work is satisfactory , but we don 't need you around here ." Stam- baugh. denied this conversation with Walton and stated that on hand- ing Walton his 'check , Walton said, "0. K." and walked off so that no explanation for his discharge could be made. We are not persuaded by Stambaugh 's denial since the substance of this conversation related by Walton, as well as the one on July 27, 1936, to which we have heretofore adverted , is consistent with the reason advanced by the respondent for Walton 's discharge , namely, his alleged interference with other workers , which the respondent at- 'LANCASTER, IRON WORKS, INCORPORATED 753 tributed to his union activities. Moreover, Constine, another allegedly discriminatorily discharged employee, testified, as noted below, that 'he had a conversation with Stambaugh of similar tenor on the occasion of his discharge by him. We believe that the conversations occurred as recounted by Walton and as we have found. The respondent contended at the hearing that Walton was dis- charged because he upset the men "both physically and morally" by cursing them all the time. Stambaugh testified that on August 1, 1936, Peter Decker, a boiler repair worker employed in the same de- partment as Walton, complained that Walton used abusive language in the plant and that Decker reported Walton because he did not want a fight in theshop; that on August 18, 1936, he received a com- plaint from Stewart Sullenberg, toolroom man, that Walton told him (Sullenberg) to give old tools to a fellow employee named Krause, who was not a member of the Brotherhood, so as to cut down his pro- duction; and 'that a week later, Sullenberg and Hague, another employee, complained that Walton was using abusive language. Walton denied the charges. We are convinced by the testimony of the respondent's own wit- nesses, however, that Walton's discharge was not motivated by these alleged complaints. Stambaugh admitted, on cross-examination, that cursing is common in the plant and that he had heard others curse, but stated that he had received no complaints against any other em- ployee during his 21 years of service with the respondent; that Deck- er's complaint of abusive language by Walton was the first one he had ever received; and that he discharged Walton after the second rumor that Walton was using abusive language, without giving Walton a chance to deny it, because he thought "it would cause further trouble" if he did. Decker was also put on the stand by the respondent and testified that Walton called him names "before and after lunch and at 3 and 4 o'clock in June 1936," instead of on August 1, 1936, as testified by Stambaugh, and that he complained of the conduct- of Walton to Stambaugh the following day. He admitted, moreover, on cross- examination, that he also used abusive language in the course of his conversation with Walton. Sullenberg, one of the other employees named by Stambaugh, attempted to corroborate the testimony of Stambaugh but admitted on cross-examination that the affair of the broken tools involving the employee named Krause occurred 2 months before Walton was discharged and that no report was made of the incident to any supervisory official of the respondent until about 3 weeks before Walton's discharge. Sullenberg testified further that Walton was not his superior and that he-did not carry out his orders to give bad tools to Krause. While Sullenberg testified that Walton called him names about a week before his discharge and that he imme- 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately reported the matter to Ray Schiiding, and his testimony in this respect was corroborated by another employee named Fellenbaum, he also admitted that he and other employees used profanity in the plant. Ray Schiding also testified that it was common practice for the men to curse in the plant.- We find that the respondent did not discharge Walton because of his use of abusive language to employees in the plant. Roy E. Constine was employed by the respondent for approximately 17 years as an electric welder. He. worked continuously for 11 years preceding his discharge and at intervals prior thereto dating back to 1915. At the time of his discharge, he was receiving 65 cents an hour and an average weekly wage of approximately $30. He joined the Brotherhood in August 1934 and was active in.its affairs. He was elected corresponding secretary of the Brotherhood in 1934, a position which he held until his discharge. Constine's activities in the Broth- erhood were well known to the respondent. He attended the confer- ences between the Brotherhood and the respondent in 1934 and 1935 in regard to working conditions. He took an active part in nego- tiating the contract of March 25, 1936, between the Brotherhood and the respondent and signed it as an attesting witness. He attended the conferences between the Brotherhood and the respondent in April, May, and June, 1936, in which. the;,Brotherhood sought to obtain a standard wage scale. Constine corroborated Hahn's statement that at a meeting of the Brotherhood executive committee, of which he was a. member, with the respondent on or about June 15, 1936, Posey, the president of the respondent, told the committee that "if we wanted to continue to jeopardize our jobs, just keep coming in here like this." Constine was active in securing the affiliation of the Brotherhood with the Amalgamated in the early part of August 1936. After being authorized by the Brotherhood executive committee to communicate with the S. W. 0. C., Constine arranged a meeting of S. W. 0. C. representatives with the officials of the Brotherhood on August 16, 1936. After the affiliation of the Brotherhood with the Amalgamated took place on August 29, 1936, Constine became president of the Amalgamated. No complaints were made, about Constine's work during his 17 years of service with the respondent until after the strike at the plant in March 1936. In this connection, Ray Schiding, the superintendent of the north plant where Constine was employed, admitted at the hearing that no fault was found with Constine until "after the strike in 1936." 19 See Empire Worsted Mills, Inc. and Textile Workers Organizing Committee, 6 N. L. R. B. 513, where the Board held that the use of abusive language by a union member was not the cause for discharge where the use of such language by others was condoned. LANCASTER IRON -WORKS, INCORPORATED 755 During the latter part of the - after-noon of. August - 26, -1936, Stam- baugh, the general superintendent , ' approached Constine while at work, and advised him that the respondent had decided to let him go and "You know what for." Constine inquired as to the reason and Stambaugh replied , "You know what it is all about." Stambaugh then said something about "causing all of the trouble around here you are ever going to cause," and handed Constine a check for his pay up to 5 o'clock that afternoon . Constine asked Stambaugh if anything .}vas wron'g.wit-h his, work . According to Constine, Stam- baugh answered , "No. You know - what - it is all about." Stambaugh testified at the hearing that upon handing Constine his check, Con- stine said , "0. K." and walked away, giving him no chance for an ex- planation . Stambaugh 's testimony concerning the circumstances sur- rounding Constine 's discharge is practically identical with his version of the circumstances attending Walton's discharge , which had oc- curred a few minutes before . We cannot accept Stambaugh 's asser- tion that Constine , after 17 years of service, accepted his check without any inquiry into the reason for his discharge . We find that the dis- charge occurred as recounted by Constine. The respondent maintained at the hearing that it discharged Constine for "loafing behind tanks and in the tool room"; for "rub- bing out ' welding . marks",-placed on dredge pipe by the inspector instead of welding the defective parts; and because he went into the plant at night and. interfered with the men during working hours. We shall consider these contentions seriatvm. Stambaugh , the general superintendent , testified that he received reports in June, July, and August, 1936, , from Ray Schiding, the superintendent of the north plant, that Constine loafed "behind tanks" on numerous occasions . Schiding testified that after the strike in March 1936, Constine continually loafed in the plant and when repri- manded, would threaten to call a strike. While Allison Dorsey, dredge-pipe inspector in thee same department as Constine , partially corroborated Schiding 's testimony by stating that he often observed Constine loafing in the plant during the "last month or so " of Con- stine's employment with the respondent , he admitted that he made no report to Schiding concerning Constine 's alleged loafing. Constine denied that he loafed in the plant and that he had received any com- plaints in this connection from any of the officials of the respondent. Schiding admitted, on cross-examination, that he made no report to Stambaugh concerning Constine until a week before Constine was discharged . Thus, Schiding 's testimony in this respect contradicted Stambaugh 's, who placed Schiding's first complaint regarding Con- stine in June 1936, instead of 1 week before Constine 's discharge. Furthermore , Schiding explained that although ' he had the power to 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire and discharge during this period that Constine allegedly loafed, he did not exercise the right because he did not wish to assume the responsibility of discharging "an officer in the New Deal Brotherhood." Moreover, Stambaugh admitted at the hearing that he never at any time informed Constine of the charge against him in this respect, and offered no explanation as to why he did not discharge Constine in June, when, according to his own testimony, he first received such reports from Schiding. Under these circumstnaces, we find that Constine did not loaf as alleged, and further that, even if, contrary to our finding, a basis did exist in fact for the respondent's assertion, it was not the reason for Constine's discharge. Secondly, the respondent asserted that Constine was discharged for "rubbing out welding marks" 20 on dredge pipe. The respondent ex- plained that from time to time beginning in June 1936, it received complaints from its customers that the dredge pipe supplied by it was ripping open under pressure; that on one occasion it had to replace a carload of dredge pipe which had thus proved defective; that this led to a closer inspection of the pipe produced; and that it was found that Constine in performing his work as a welder rubbed out marks placed on the inside seams of the pipe by the inspector to avoid crawling through the pipe. Dorsey, the inspector of dredge pipe, testified that he caught Constine rubbing out marks in June 1936 and told Constine about it, but made no report to Schiding until a week before Constine was discharged. Two other witnesses for the respondent, William and Robert Quigley, welders in the same department as Constine, also testified concerning the rubbing out of welding (narks by Constine. William Quigley, employed approximately 6 years as a welder, testi- fied that he saw Constine rub out marks "only on one pipe" and that Constine "showed me how to do it on one pipe," 6 weeks or 2 months before his discharge. Robert Quigley, employed 8 years as a welder, testified that Constine showed him how to rub out marks "a couple of weeks" before he was discharged; but admitted on cross-examination that he never saw Constine rub out any marks. Constine admitted that he had in the past erased from the pipe marks made by the inspector, when he considered. that the inspector was not competent and that the pipe did not require repair. He denied, however, that he had ever allowed any defective shipments to go out, that Dorsey or any of the respondent's officials ever complained about his work as a welder, or that he had ever instructed other welders to disregard the 20 "Welding marks" referred to herein are soapstone marks placed on dredge pipe by an inspector after examining the seams of the pipe for defects left by the automatic welder. Dredge pipes are 16 feet long and vary in diameter . These marks are sometimes placed on the inside seams of the dredge pipes and require the welder to crawl through the pipe on his bands and knees to, patch : up,the-piper The respondent ,. claims', tbat .Constine would weld only the ends of the pipe and rub out the marks as far as he could reach, thus making it appear to the inspector , on rechecking , that the pipe had been repaired. LAN'CAST'ER IRON' WORKS, INCORPORATED 757 inspector's welding marks.. The weight of the evidence indicates and we find that Constine did on occasion rub out marks on pipe which he did not consider defective. We find that he did not instruct other welders to rub out marks and that the respondent made no complaint of his conduct. However, other considerations convince us that Constine's action with respect to the dredge pipe was not a contributing cause to his discharge and, in fact, had no material bear- ing on it. In the first place, contrary to its assertion, as far as the record discloses, the respondent made no investigation to determine the cause of the defective work until a week before Constine's dis- charge. Although Dorsey testified that lie knew in June 1936 that Constine was erasing marks from the pipe, he did not report that fact to Schiding until a week before Constine's discharge '21 when Schiding inquired as to the reason for the pipe bursting open. The respondent made no further investigation of Dorsey's report, did not communicate the charge to Constine, or afford him an opportunity to explain or deny the charge before dismissing him from its employ. It seems likely to us that, if the respondent's customers' complaints had caused it the concern alleged, and if it had conducted an investigation with a view to disciplinary action of the individuals found responsible, Dorsey, the inspector, would normally have been interrogated in June or July on the subject, and would have then reported his alleged findings regarding Constine. In the second place, the respondent was unwilling to place the responsibility directly on Constine for the defective shipments which were the subject of its customers' com- plaints, Stambaugh stating at the hearing that he would not say that the rubbing out of marks by Constine caused such damage. In the third place, at the time of his discharge Constine was not welding, but was doing "fitting up" work," and if the change in his work was disciplinary, as Schiding intimated'23 it is not reasonable that Con- stine would have been discharged for a prior offense for which he had already been disciplined. We find that Constine was not discharged for "rubbing out welding marks" on dredge pipes, as alleged, but for other reasons. Thirdly, the respondent contended that Constine was discharged because he went into the plant at night and interfered with the men at work. This charge was based upon the testimony of Norman "I It should be noted that this report was made at the same time at which Schiding undertook to report Constine 's alleged loafing to Stambaugh. 2" There is a conflict in the evidence concerning when this change in Constine's work occurred, Constine claiming that it took place in June 1936, the respondent ' s witnesses placing it from a few weeks to "shortly" before his discharge . In our view of the issues it is not necessary to resolve that conflict, since the witnesses are in agreement that he was not welding at the time of his discharge. 23 Schiding testified that Constine was engaged as a welder and was removed from that job shortly before his discharge because he no longer could be trusted to work as a welder on dredge pipe. 253031-41-col. 20--49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Young and Chester Henry, who stated that during the latter part of July Constine came into the plant at night and spoke on union matters for about an hour, thus interfering with their work. Con- stine, although called in rebuttal, did not deny this testimony, and we accept it as true. However, as we stated in our discussion of Hahn's discharge, no rules were posted in the plant requiring em- ployees to refrain from entering the plant at night, and no such rule was publicized in any other manner. We find that, while Constine visited the plant at night, that action did not constitute any infraction of the respondent's rules which could reasonably have been known to him. We further find that Constine's visit to the plant at night was not the cause of his discharge. In conclusion with respect to the discharges of the three Brother- hood officials, we entertain no doubt that the respondent discharged Hahn, Walton, and Constine because of their leadership in the move- ment for the affiliation of the Brotherhood with the Amalgamated. The long years of service rendered the respondent in the instance of each employee strongly refutes the claim that the reasons advanced by the respondent in fact induced the respective discharges of these men. The actual reason for the loss of their employment .3 days before the affiliation of the Brotherhood with the Amalgamated was rooted in the respondent's desire to forestall the introduction of a national labor organization into its plant. The occurrence of the three discharges' on the same day was, more than mere coincidence and the respondent's principal objective was to give unmistakable warning to all other employees not to join the Amalgamated. Our conclusion with respect to these discharges is.confirmed by the statements of Ray Schiding. Gerald Scully, a disinterested witness who had never been employed by the respondent and who was a personal friend of Ray Schiding, testified that he had several con- versations with Schiding concerning the discharge of Hahn, Walton, and Constine by the respondent. Scully testified that one of these conversations took place at a social function held at the Eagle sum- mer home outside the city of Lancaster during the latter "part of October 1936 in which Schiding, in the presence of Allison Dorsey '14 an employee of the respondent, stated that he (Schiding) had warned any number of men time and time again that the company would never tolerate any labor organization on a large plane; that he (Schiding) advised Constine that if he continued to be affiliated witli a labor movement, sooner or later he would be discharged; that Mr. Posey, the president of the respondent, had never at any time during his employment allowed organized labor to prevail in the plant and 24 Although Dorsey appeared at the hearing as a witness for the respondent, he did not testify concerning this conversation. LANCASTER IRON WORKS, INCORPORATED 759 would not do it now; that the New Deal Brotherhood was bad enough, but the C. I.- 0. was entirely out of the question ; that that was the straw that broke the camel 's back; that .when the men affiliated with the C. I. 0., the company had made up their minds to break it up entirely , and the way to do that was to get rid of the leaders of the organization , "and now that they (Hahn, Walton, and Constine) are gone, perhaps the thing won't last much longer." Scully also testified that on another occasion in November 1936, he was invited to Schiding 's home where a conversation of similar tenor to that related above occurred ; that during this conversation Schiding stated that "the C. I. 0. was definitely cracked"; that the respondent did not oppose the Brotherhood when it was first organized in the plant because the respondent at that time thought that the Brotherhood was. "merely . an employees ' club movement" but "when it ( The Brother- hood ) turned into a general labor organization , the company went out to break it , to crack it , and it finally resulted in its being cracked under the Amalgamated episode." While Schiding was unable to recall the occasion of his conversation with Scully at the Eagle summer home, he admitted that he went with Scully to various social functions . He admitted the occasion of Scully's visit to his home in November 1936 , but denied that he had discussed union matters with him on any occasion . Schiding was corroborated by his brother- in-law, Robert Geleenlichter , in regard to the conversation with Scully at his home . However, the statements imputed to Schiding concern- ing the respondent 's attitude and motives with respect to the Amal- gamated are fully consistent with both the respondent 's and his own conduct and attitude toward the Amalgamated as revealed in this record, and we find that he made them. - We find that the respondent discharged Philip C. Hahn , Edward J. Walton , and Roy E. Constine because of their union membership and activities in behalf of the Amalgamated , thereby discouraging mem- bership in the Amalgamated ; and that by said discharges, the re- spondent interfered with, restrained, and coerced its employees in the exercise of rights, guaranteed by Section 7 of the Act. At the time of the discharges, Hahn earned 63 cents an hour and 'an average weekly wage of approximately $27.74 , Walton earned 57 cents an hour and an average weekly wage of approximately $25, and Con- stine earned 65 cents an hour and an average weekly pay of $30.. Between the date of . his discharge and the date of the hearing Hahn obtained employment from the Raybestos Company in Manheim,. Pennsylvania , earning $1500 for the period from September 29, 1936,. to September 29, 1937, when he was laid off for lack of work. From November 15, 1937 , to the date of the hearing , Hahn was temporarily employed by the Marjorie Paper Company located in Coatesville,. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania, which is approximately 32 miles from Lancaster, Penn- sylvania, as a machinist in the construction of a paper mill, receiving 75 cents an hour for an 8-hour day and a 51/2-day week. He earned approximately $300 in such work. Although employed at the date of the hearing, Hahn expected the construction work to be completed in a month or two. Hahn wishes to be reinstated to his former position in the plant. Between the date of his discharge and the date of the hearing, Walton worked 21 days during the period from October 28, 1936, to November 26, 1936, for the Cleveland Gas Machinery Company at the rate of $1 per hour and earned a total of $180. During the period from February 12, 1937, to July 2, 1937, he worked 61 days for Parish Bros. Steel Company and earned a total of $403.13. Thereafter he began to work for the General Electric Company in Philadelphia and up to January 5, 1938, earned a total of $823.91. At the date of the hearing he was working several days a week, between 22 and 25 hours per week, for the General Electric Company in Philadelphia. He received a total of $1,407.04 on outside employment between the date of his dis- charge and the date of the hearing. Walton is married and lives with his family at Lancaster, Pennsylvania, and wishes to be reinstated to his former position in the plant of the respondent. Between the date of his discharge and the date of the hearing, Con- stine was employed by the Cleveland Gas Machinery Company for 5 weeks beginning in October 1936 at the rate of $1 per hour and earned a total of $220. He was unemployed until January 1937 when he began to work for the Parish Bros. Steel Corporation in Reading, Penn- sylvania, and earned approximately $300 during the period from Jan- nary until March or April 1937. On June 1, 1937, Constine obtained temporary employment with the Steel Workers Organizing Committee and up to the date of the hearing earned $980. He desires to be rein- stated to his former position in the employ of the respondent. C. Opposition to the Amalgamated During the period immediately preceding and following the advent of the Amalgamated in the respondent's plant, the respondent through its supervisory employees openly sought to deter individuals from joining the Amalgamated. The instances in the record of the re- spondent's supervisory employees engaging in this illegal activity are too numerous to be cited in detail. However, the following examples in addition to those treated in connection with the discharges, hereto- fore discussed, characterize the general policy pursued. During the first week of August 1936, Schiding told a group of employees during working hours not to join the C. I. O. and that . LAN'CAS'TER IRON WORKS, IN!CORPOiRATED 761 "the C. I. O. was no good." Schiding also told Albert Englerth, an employee actively engaged in bringing the C. I. O. into the plant, that "you will be one of the next ones if you don't watch yourself." Prior to the affiliation of the Brotherhood with the Amalgamated, Schiding told Charles Warfel, an employee in the north plant, "You better not affiliate with the C. I. O. You won't get anywhere with that." Schiding also warned Warfel several times, while working in the plant, against joining the C. I. O. During the same time, Cy Mem- minger, the foundry manager, told George Miller "it was a good idea to stick to the New Deal Brotherhood but not to the C. I. 0." and "if you want your job, you better not bother with the union." In September 1936, Allen Heagy, the foundry foreman, talked to Harry Glazer, a foundry-shop committeeman of the Amalgamated, several times about unions. On one occasion, after discussing the rights of the respondent's employees to organize, Heagy told Glazer, "If that communist, Lewis, keeps on none of you fellows will have work." Heagy had reference to John L. Lewis, the president of the Committee for Industrial Organization. Other supervisory employees of the respondent made similar coer- cive statements to employees concerning affiliation with the Amal- gamated. Although all the respondent's officials denied either gener- ally or specifically the statements attributed to them by the various witnesses, their respective denials are not persuasive in view of the abundance of evidence in the record 15 disclosing the respondent's hostility toward the Amalgamated and determined effort to prevent its organization of the employees. The respondent's policy would normally be and was executed by its supervisory employees. Apart from the consistency of these statements with the policy pursued by the respondent with respect to the Amalgamated, in many instances employees whose credibility we have no reason to doubt testified to statements of similar tenor made by individual supervisors. We are satisfied and find that in substance such coercive statements were made to the employees by their supervisors. We find that by Schid- ing's statements to a group of employees, to Warfel and Englerth, by Memminger's statements to Miller, by Heagy's statement to Glazer, and by other statements similar in nature made by other supervisory officials to the employees, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 1, 1936, several days after the affiliation of the Brotherhood with tie Amalgamated and thereafter for a period of R° We refer to the respondent 's unfair labor practices other than these coercive state- ments by supervisors. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 2 weeks, a petition 26 reciting a request of the signers for with- drawal from membership in the Amalgamated was circulated among the employees iii the south plant by Harold Landis, a brother of Walter Landis, who had been suspended as president of the Brother- hood in May 1936. These brothers; were both active participants in the events leading to the formation of the I. W. U., which will be discussed below. The petition was openly circulated during working hours, passed from employee to employee, and left lying in various places in the plant, such as near the water cooler, in the lunchroom, and on the desk in the plate shop used by the shop boss. No objec- tion to its circulation was made by any of the respondent's super- visory officials, although, in view of the manner and method of its circulation among the employees without apparent effort at conceal- ment, the petition must, of necessity, have been brought to the super- visors' attention in connection with their supervision of the work in the respective departments. The open circulation of this petition in the plant, coming immediately upon the heels of the, affiliation of the Brotherhood With the Amalgamated, within less than a week after .the discharge of the principal Brotherhood officials by the respond- ent, and during the same period when the respondent's supervisory officials were urging the employees to refrain from joining the Amal- gamated, was an unmistakable expression of the respondent's hostility to the Amalgamated and of its desire to eliminate it as a collective bargaining agency for its employees. Subsequent events establish that the respondent's conduct was so interpreted by its employees, who acted accordingly. We find that by permitting the open circu- lation in the plant during working hours of the petition designed to secure the withdrawal of employees from membership in the Amal- gamated, the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act.2`' At the time of the affiliation of the Brotherhood with the Amal- gamated on August 29, 1936, there was about $1,000 in the Brother- .hood's treasury. During the early part of October 1936, Walter .Landis, the suspended president of the Brotherhood, went to the office of Lester Fiester, the superintendent of the respondent's south plant plate shop, and solicited his advice concerning the dissolution of the Brotherhood and the distribution of its funds and asked for 2e This petition is not in evidence . However , John C. Painter , one of the signers, testi- fied without contradiction, and we find, that the caption of the petition stated : "We, the undersigned, wish to withdraw our names for membership in the C. I. 0." The record does not disclose who drafted the petition. 27 See Matter of Walter Stover and Upholsterers Allied Crafts Local Union No. 501, 15 N. L. R. B. 635, and cases cited in footnote 8 therein. LAN-'CASTER IRO\' WORKS, INCORPORATED 763 "a good lawyer." Upon Landis' request, Fiester made an appoint- ment for him with his (Fiester's) attorney, W. Hensel Brown. Pur- suant to the appointment, Walter Landis and other employees of the respondent went to Brown's office and instructed Brown to start an injunction proceeding to impound the funds of the Brotherhood. On October 20, 1936, Brown filed in the Court of Common Pleas of Lancaster County, a bill in equity on behalf of Howard M. Snyder, Harold E. Landis, and Alva H. Garreth, three of the respondent's employees in the plant, asking for an injunction to prohibit the funds of the Brotherhood from being transferred to the Amalgamated. At the hearing, Fiester denied that he sent Landis to Brown's office to start the injunction proceedings but admitted that he and Landis had discussed the dissolution of the Brotherhood and the distribution of its funds it, the time the appointment with Brown was made. Landis denied at the hearing that he told Fiester his purpose in get- ting a lawyer but admitted that the injunction proceeding was the result of the appointment made by Fiester with Brown.28 Under these circumstances we cannot credit Fiester's and Landis' denials and we find that Fiester counseled and advised Landis concerning action to be taken regarding the funds of the Brotherhood and as- sisted him in obtaining an attorney to secure the injunction. We further find that by Fiester's action, the respondent interfered with the affiliation of the Brotherhood with the Amalgamated and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. A temporary injunction against the transfer of the Brotherhood funds to the Amalgamated was granted and made final by the Court of Common Pleas of Lancaster County on November 26, 1936: After the injunction was made final and on November 30, 1936, 132 members of the Brotherhood signed a petition authorizing the pay- ment of their proportionate share in the New Deal Brotherhood funds to the Amalgamated to be applied as dues in the latter organi- zation. On January 9, 1937, a bill in equity asking for a dissolution of the New Deal Brotherhood was filed by officials of the Brother- hood. On January 22, 1937, the Brotherhood was dissolved by order of court and a receiver appointed. The funds of the Brotherhood were distributed on April 16, 1937, when the court issued a decree for distribution equally to the members of the Brotherhood who were in good standing as of August 29, 1936. The first attempts to form an inside union in the plant after the affiliation of the Brotherhood with the Amalgamated occurred in November 1936 while the injunction proceeding was pending. On 28 Landis, who had been suspended from the Brotherhood , had no pecuniary interest in the funds of the Brotherhood at the time he initiated the injunction proceeding. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 9, 1936, the first meeting was held at Halley's Cafe with 14 employees present. Harold E. Landis, one of those who initiated the injunction proceedings was elected president and John C. Painter was elected vice president. This attempt to form a new organiza- tion in the plant by a small group of employees, some of whom had previously been assisted by the respondent in their effort to prevent the transfer of Brotherhood funds to the Amalgamated, did not re- ceive any general employee support. The only other meeting held by the group was on November 23, 1936, and only three employees were present. No further meetings were held and no union was formed at this time. D. Domination of and interference with, the formation and adrzin- istration of and support of the Iron Worker's Union When the Brotherhood was dissolved by court order on January 22, 1937, Posey was in Florida. His office sent him newspaper accounts of the dissolution of the Brotherhood. Posey returned from Florida during the early part of February and consulted with the general superintendent, Stambaugh, as to the labor situation in the plant, telling Stambaugh : Now we don't want to get in a jam like we did last year. There is a lot of work coming up for dredges. We have to make con- tracts running 6 or 8 months. Now we don't want any labor trouble. Let's get a shop committee and make an agreement. Post a notice to have the boys send up a shop committee to make an agreement. On or about February 10, 1937, a notice signed by Stambaugh, the general superintendent, and approved by Posey, was posted in all the plants.29 The day following posting of the notice, February 11, 1937, the Amalgamated notified the respondent by telegram that it repre- sented a majority of its employees for the purposes of collective 21 This notice read as follows : Your company would like its employees to select three men from each depart- ment; namely , machine shop , South plant , plate shop, foundry , and North plant, to represent them in a conference with the Management to discuss equitable working conditions in the future. The date for the above conference can be decided between the men selected and the Management . The men selected will please notify the Management that they have been selected so the date can be arranged for the above conference , which we would like to have in the near future. Hoping we have the full cooperation of all employees, we are, Yours very truly, LANCASTER IRON WORKERS, INC., (Signed ) S. STAM BAUGH, General Superintendent. LANCASTER IRON WORKS, INCORPO'RATED 765 bargaining and would request a conference in the near future.30 The respondent made no reply to this telegram but instead showed it to three employees, Lambertine Howard, a night foreman in the south plant," Elmer J. Houck, and John C. Painter, all of whom later were instrumental in forming the I. W. U. These three employees advised Posey to disregard the telegram and stated that they rep- resented the Brotherhood for the duration of the contract.32 Several days after the notice was posted, an election was held in each of the four divisions of the plant for the purpose of electing a committee in accordance with such notice. The respondent supplied the ballots and. the ballot boxes. The ballots.were distributed and collected by the respondent's office employees with the aid of super- visory officials. The voting took place in the plant during working hours. The record shows that the respondent's supervisory officials actively participated in the conduct of the election. William Haver- camp, the superintendent of the machine shop, handed out ballots to some of the employees and told them to vote. The ballot box was in Havercamp's office and the men went there to vote. Walter Hann, the assistant superintendent of the foundry, kept the tally of the ballots cast in the election in the foundry and permitted several of the employees to count the ballots at 3:00 o'clock in the afternoon "because the election was officially authorized by the general super- intendent." He admitted that he would not otherwise have per- mitted a stoppage of work to count the ballots on company time. Ray Schiding, the superintendent of the north plant, gave the em- ployees on the night shift time off to vote. The ballot box was in Schiding's office during the election. Ralph Hagen, a foreman, took the ballots out of the ballot box in the election held in the north plant. George Veach, the night foreman of the north plant, distributed bal- lots to employees working on night shift. With respect to the election in the south plant, Stambaugh, the general superintendent, was pres- ent in the south plant office while the ballots were being counted. Lester Fiester, superintendent of the south plant plate shop, was present during both the balloting and counting of ballots. The ballot box was in Fiester's office. No deductions were made from the pay of any of the employees for the time lost from work during the voting or counting of the ballots. At the time of this election and previous thereto, the Amalgamated had shop committeemen in each of the four divisions of the plant. Many of the employees who were - The respondent 's alleged refusal to bargain collectively with the Amalgamated In con- travention of Section 8 (5) of the Act is discussed in detail in Section IV 3, infra. B' Stambaugh described Howard as a gang boss and working foreman and several em- ployees referred to him as a night foreman. The Trial Examiner found him to be a night foreman and the respondent took no exception to the finding which we have adopted. = The Brotherhood had been formally dissolved by Court Order of January 22, 1937, which fact was known to Posey. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Amalgamated refused to vote in the election and were reprimanded by the respondent's supervisory officials. Gervase Ziegler, an employee in the foundry, refused to vote when Daniel Hart, the office boy, brought around the ballot box in the foundry. He was called into the office of the assistant superintendent, Walter Haun, and asked why he did not vote. Ziegler replied, "I don't care to." Haun replied, "That is no answer, Why?" Ziegler answered, "Hell, you know what is coming up as well as I do." Ziegler did not vote. Many of the respondent's employees voted blank ballots. Other employees who did not wish to vote at the election were told by Stanley Schaeffer, the timekeeper in the north plant, that they would not get their checks unless they voted.33 During the election, the respondent's supervisory officials endeavored to influence the employees in their choice of candidates. William' Havercamp, the superintendent of the machine shop, handed Lloyd Markley a blank piece of paper while he was working at the plant and told him to vote for three shop committeemen. Markley told Havercamp that he was going to vote for Paul Fanelli and James Waller, two employees who were members of the Amalgamated.' Havercamp told Markley, "Don't put any crap on the ballots because they go to the office for the big shots to look at." Markley wrote "None" on his ballot and put it into the ballot box, which was in Havercamp's office. Havercamp also gave James Waller a ballot and told him, "Be careful what you put on there or you will be up in the office." Although Haun and Havercamp denied generally- that they interfered in any way with the conduct of the election, Havercamp was unable to recall the conversation with Markley and did not specifically deny the statement attributed to him by Waller. Their denials are not persuasive under the circumstances heretofore recited. The results of the election were posted on the respondent's bulletin board in each of the plants. Three committeemen were elected from each of the four departments. On February 18, 1937, the Amalgamated, by letter, requested a conference with the respondent on February 20 for the purposes of collective bargaining. The respondent made no reply. On February 1.9, 1937, the 12 committeemen elected in the plant, hereinafter called the Committee, met with Walter Posey, the presi- dent of the respondent, in the latter's office 'for the purpose of dis- cussing a contract for the ensuing year. Lambertine Howard, the 3 While Schaeffer asserted that he was acting without authority from the respondent in this connection Stambaugh , the general superintendent , stated that the timekeeper and he was acting upon at least an implied authority from the respondent and we so find. In this connection Stambaugh, the general superintendent , stated that the timekeeper and office boy may have received instructions from higher officials to get the employees to vote. LAN10ASTER IRON WORKS, INCORPORATED 767 Committee spokesman, told Posey that a. new union was being formed. Posey approved the action and told the Committee that as soon as they got a majority he would recognize them and deal with them as representatives of the employees in the plant. The meeting in Posey's office lasted for 2 or 3 hours. The questions of a closed shop and check-off system of dues were discussed. Posey gave the Committee a copy of the old contract between the respondent and the Brother- hood to be used as a pattern for the new agreement. The meeting adjourned with the Committee stating that it would call a meeting of the employees on March 1, 1937. Thereafter postal cards were, typed and mailed to the employees by George Whitmer, timekeeper. of the north plant, at the request of the Committee'34 advising the employees that a meeting would be held at Halley's Cafe at 8: 00 p. m. on Monday, March 1, for the purpose of receiving a report from the Committee with reference to the conference held with Posey on February 19, and to vote on certain proposals made by the respondent to the Committee. On March 1, 1937, the Committee held a general meeting for the employees at Halley's Cafe. Although there were 242 employees on the respondent's pay roll at this time, only 93 attended the meeting. John C. Painter, acting as temporary chairman, asked those present at the meeting if they had anything good to say for the C. I. O. No one answered. Lambertine Howard, the night foreman in the south plant, was elected general chairman of the Committee. The Com- mittee was authorized to proceed with the organization of an inde- pendent union. At this meeting the name "Iron Workers Union" was temporarily adopted and officers were nominated, to be voted on at the next meeting. On March 3 the Committee met at the home of Lambertine Howard and drew up a tentative agreement to be presented to the respondent, patterned after the old agreement of March 25, 1936, between the respondent and the Brotherhood, which had been furnished them by Posey. At a conference between Posey and the Committee on March 5, the terms of a proposed agreement between the Committee as representatives of the I. W. U. and the respondent were discussed. The Committee requested a closed-shop provision in the contract. Posey agreed to consider the proposed provision for a closed shop and promised to consult with his attorney to find out whether it was legal for him to do so. On March 8, 1937, the Amalgamated called a strike in the plant and approximately 171 of the respondent's 242 employees went out on strike. Two days after the strike started, the respondent's super- u There is no showing that this work was done on company time or with company facili- ties, and we make no finding to that effect. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory officials engaged in an active campaign designed to break the strike and to coerce its employees into renouncing their membership in the Amalgamated. 'This was accomplished by soliciting the strik- ing employees individually to return to work. These solicitations, made while the men were on the picket line and also by personal and telephone calls made to their homes, were accompanied, in many instances, by derogatory statements concerning the Amalgamated, by threats of sending the work elsewhere if the men did not return to their employment, and by threats of loss of employment if picket- ing of the plant was continued. One supervisory official, William Haverca.mp, called at the homes of strikers and requested them to sign - a slip of paper indicating their intention of returning to work. This list, after signatures were obtained thereon, was then exhibited to other employees by Havercamp to influence them to return to work. On the second day of the strike, the general superintendent, Stam- baugh, approached Elbert B. Dobbs, captain of the picket line at the north plant, while Dobbs was on picket duty, and urged him to return to work so that other picketers would follow him. Many of the respondent's supervisory officials admitted at the hearing that they solicited the return of the strikers to work. On March 11, 3 days after the strike began, the respondent gave the I. W. U. verbal authority to consider the plant a closed shop and to decide which employees who were out on strike should be allowed to return to work. After the respondent had granted this authority to the I. W. U., the members of the I. W. U. committee in each plant, selected in the plant election of February 11, held their own meetings in the plant 3a with employees in their depart- ment to pass on the applications of strikers and new employees seeking work. At some undisclosed time during the morning of March 11, but after the grant of the closed shop 36 Charles Frain, who later became secretary of the I. W. U.,37 and George Whitmer, timekeeper of the north plant, prepared a number of petitions 38 which were circulated 31 Some of these meetings were held during working hours while others occurred during the lunch period. a8 This appears from the recitation of the closed shop in the petitions themselves. 87 While Frain was a layer-out at the time of the strike he was promoted to the position of foreman on July 12, 1937, 38 One hand -printed petition in 3 counterparts with 100 signatures contained the follow- ing, caption : TO WHOM IT MAY CONCERN-MAR. 11, 1937 WE, THE UNDERSIGNED, in the presence of the Representatives of the Iron Workers Union, of our own free will and accord agree to Join the Iron Workers Union and to have the dues of this union , deducted from my pay check quarterly-by the pay- master of the Lancaster Iron Wks. Inc . We also agree to abide by the by-laws of LANCCASTEM '. IRON ' IVGRKS,' INCORPORATED 769 among the respondent's employees by Frain and other members of the I. W. U. during the lunch hour on March 11, during the course of the day on March 12, and thereafter until membership cards for the I. W. U. were printed in April 1937. On the afternoon of March, 12, the regular 2-week pay day, William Havercamp called a group of striking employees, who were waiting outside the plant for their pay, into the office of the machine shop. There, Havercamp and Stambaugh advised them that they would have to join the I. W. U. and be approved by that organization before they could return to work. Robert Barton, a gang leader present, read one of the peti- tions prepared by Frain and Whitmer and then both Stambaugh and Barton urged the employees present to sign the petition. Likewise, on the same date, Fiester approached the employees on the picket line and instructed them to go to the basement in the main office to re- ceive their pay. There, as the employees received their checks from Schultz, the timekeeper in the south plant, they were presented with a copy of the petition prepared by Frain and Whitmer and instructed by that individual to sign in order to return to work. On March 13, 1937, representatives of the I. W. U. met with the respondent's officials and at that meeting" entered into a written con- tract with the respondent for the period of 1 year, in which the respondent recognized the I. W. U. as the exclusive bargaining repre- sentative of its employees for the purposes of collective bargaining. the Iron Workers Union and will not harm said union in any manner whatsoever. we also understand that the Lancaster Iron Wks. Inc. is a closed shop, with the representatives of the Iron Workers Union, sole bargaining agents. Representatives: CHARLES DRAIN. LLOYD SMITH. ALLISON R. DonsaY. Another typewritten petition in 5 counterparts with 248 signatures contained the following caption : _ _ . ._ EMPLOYEES OF LANCASTER IRON WORKS, INC. MARCH 12, 1937. We, the undersigned, desire the Committee named on the Agreement, to have same signed by the Lancaster Iron Works, Inc., also that we with our names here below become members of the Iron Workers Union. :All signers must be employees of the Lancaster Iron Works, Inc. Another typewritten petition with 35 signatures contained the following caption : LANCASTER, PA., Mar. 11, 1937. We, the undersigned, employees of the Lane. Iron Wks. Inc. agree without any coercion on the part of the company, fellow employees management or the commit- tee chosen by the employees to represent said employees, to accept the agreement of accord, drawn up between your committee and Air. W. W. Posey for one year, dating from Mar. 25, 1.937 to Mar. 25, 1938. Witness our hand, this eleventh day of March, 1937. Committee : CHARLES R. FRAIN. LLOYD SMITH. ALLISON DORSEY. There were duplications, not here material for reasons hereinafter stated, on all three sets of petitions. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this meeting the I. W. U. submitted the petitions prepared by Frain and Whitener containing the names of the employees 39 whose signatures had been obtained thereto on the 2 days immediately preceding the date of the execution of the contract. The respondent's officials did not attempt to verify the employees' signatures on the 'petitions but as Campbell, the respondent's secretary-treasurer, testi- fied, "We took their word for it." The contract was patterned after the agreement between the Brotherhood and the respondent of March 25, 1936, and did not contain a closed-shop provision. On March 15 representatives of the I. W. U. met with the super- intendents of the plants, including Stambaugh, the general superin- tendent, and Arthur Campbell, the treasurer of the respondent, and decided to send back-to-work cards to employees who were still on strike. These cards, typed by George Whitmer, the timekeeper in the north plant, and signed by the "Committee," were sent to the striking employees at the discretion of the Committee requesting them to return to work by Friday, March 19, at 8:00 a. m., and stating that otherwise they would be considered to have left the employ of the respondent.40 During the second week of the strike the I. W. U. committee held a meeting with employees of the north plant at lunch time in the toolroom of the respondent's north plant.41 At this meeting, pur- suant to the authority delegated to the I. W. U. by the respondent, it was decided that certain Amalgamated members on strike would not be permitted to return to work in the plant under any circum- stances. Each striking employee was then voted on separately by the counting of hands and the names of those whom the I. W. U. members voted not to permit to return to work were placed upon a blacklist.42 89 We have not sought to determine whether the signatures on these petitions-allowing for duplications-represented an actual majority of the employees in the appropriate unit on March 13 , 1937. Whether or not the petitions were signed by such a majority is imma- terial since it is manifest , as we hereinafter find, that such majority , if existent, was a coerced majority inasmuch as the oral closed-shop contract had been made on March 11 and thus established membership in the I. W. U. after that date as a condition precedent to employment. O The back-to-work cards read as follows : LANCASTER , PA., Mar. 15, 1937. DEAR SIR : By a unanimous vote of the men now working, you are requested to return to work by Fri . Mar. 19, 8 a. m . Otherwise it will be considered that you have left the employ of the Lancaster Iron Works, Inc. Yours truly , COMMITTEE. a We have accepted Painter's and Stambaugh 's testimony concerning the date of this meeting, although there is evidence that it may have occurred as early as March 11, one of the dates upon which Frain testified there was a meeting of the north plant employees and the I. W . U. Committee in the plant. 42 The I. W. U. contended that no blacklist was drawn but that a list containing the names of 30 strikers voted upon by the I. W. U. was prepared specially for the hearing. The names of the strikers on this list were read into the record and are as follows : Samuel Maurer, George Swiverling , Elvin Gable , Lloyd Markley , John Smith , Paul Fanelli, LANCASTER IRON ' WORKS , INCORPORATED 771 On March 19 unmarked envelopes containing $5 were distributed by the respondent's supervisory officials to all employees who had returned to work by March 12. Approximately 197 employees were working by March 24, 1937. The strike was still in progress at the time of the hearing. No general meeting of the membership of the I. W. U. was held after the first meeting called by the committee on March 1, 1937, until March 29,1937. On that date a meeting was held at the German Beneficial Union Hall and was attended by approximately 100 per- sons. At the meeting the organization of the I. W. U. was per- fected, permanent officers were elected,43 and the name "Iron Workers Union" was adopted. At this meeting, the. new agreement between the respondent and the I. W. U. was read by the secretary to the organization as a whole for the first time and the secretary was authorized to write a letter.to Posey requesting the check-off system for dues. On April 1, 1937, the I. W. U. wrote the respondent requesting a confirmation of the previously concluded oral agreement concerning a check-off of dues of 25 cents per month quarterly, the closed shop, and recognition of the I. W. U.' as exclusive bargaining agent. On April 2 the respondent replied to this letter confirming the grant of the check-off privilege, upon receipt of specific authorization from individual employees, and the closed shop, and informed the I. W. U. that the respondent had decided to grant vacations with pay in accordance with a prescribed schedule. By letter dated May 14, 1937, the I. W. U. requested a 5. cents an- hour increase in wages and adjustments of various working conditions. These were granted by .the respondent and confirmed by letter dated May 18, 1937, which stated, among other things, that the wage increase would become effective on July 1, 1937. No meetings were held between repre- sentatives of the I. W. U. and the respondent after the wage in- crease was granted, except that the grievance of one employee which it is unnecessary to discuss, was adjusted. At the time of the hear- ing, new officers had been elected by the I. W. U. for 1938 at an election held in the respondent's plant in December 1937. Conclusions as to the I. W. U. Over a period of years the respondent had successfully resisted the effort of the Brotherhood to function as an effective collective Horace Barnes , James Waller, Charles Warfel , Henry Tollaksen , Clair Frey , Edwin Deng- ler, Floyd Little, Eugene Danz, Anthony Cunningham , Elbert Dobbs , William Miller, Lloyd Waller, Richard Sigman, Charles Sallade, Benjamin Hall, John Cramer , William Gerffn, William Ashby, Harry Rahm, John Ranzinger, Frank Myers, John Reisinger , Harold Camp- bell, and Norman Glassmyer . All of these employees are named in the complaint. 4a John C. Painter was elected president ; Roger Meyers , vice, president ; Charles R. Frain , secretary ; and B . Frank Sawyer ; treasurer. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agency. When the Brotherhood was unable to accom- plish its objectives and decided in August 1936 to affiliate with the Amalgamated, a national organization, the respondent actively under- took to discourage that action. It discriminatorily discharged the three Brotherhood officers primarily responsible for the affiliation 3 days before its consummation," and many of its supervisory em- ployees, in conversations with individual employees, disparaged the Amalgamated and warned them against joining it. Within a few days after the Brotherhood members had voted to affiliate with the Amalgamated, the respondent permitted the circulation in the plant during working hours of the petition for employees to withdraw from membership in the Amalgamated. When the employees per- sisted in their desire for outside representation, the respondent, through Fiester, superintendent of the south plant plate shop, coun- seled and assisted a small group of employees in their effort to obstruct the proposed affiliation through the institution of the in- junction proceedings. In November 1936 there was an attempt by substantially the same small group of employees to establish an inside organization but the attempt failed because of the absence of any general employee support. When the Amalgamated continued to organize the respondent's employees despite its persistent efforts to prevent it, the respondent in February 1937 openly formed an inside organization; for its employees. The initial step was President Posey's instructions to Superintendent Stambaugh in early February 1937 to "get a shop committee and make an agreement" and conduct an election for that purpose. In accordance with this purpose and plan, on February 10 the respondent posted a notice requesting its employees to select a shop committee. The respondent ignored the Amalgamated's telegram of February 11, in which that organization claimed to rep- resent a majority of its employees and on the following day con- ducted an election which restricted the employee's choice to inside representatives. By this election and by the coercive statements and actions .of its supervisory employees in connection therewith as here- tofore detailed, the respondent completely dominated and controlled its employees' choice of representatives even as thus limited. The respondent explains its request for the election of a shop committee and its participation in and interference with the election of. such a committee on the ground that the Brotherhood had been dissolved and-that it did not then know of the Amalgamated's exist- ence and desired to insure continuity of its operations for the ensuing year without labor trouble by having its employees select representa- tives for collective bargaining. Even if the respondent's motive was 44 These are Hahn, Walton, and Constine, whose discharges are discussed supra. LANCASTER IRON WORKS, INCORPORATED 773 the one asserted, which we do not find, its action patently constituted direct interference with and domination of the formation of a labor organization. But upon this record the respondent's denial of knowledge of the existence of the Amalgamated and its explanation of its motive are wholly incredible. With respect to the first, as we have found, its officials had been well aware of and had openly resisted the Amalgamated's efforts to organize the employees for months before the notice of election . 15 Moreover, there are virtual admissions in the record by the respondent' s executive officials of knowledge concerning the Amalgamated. Thus, Posey admitted at the hearing that he had heard about. the injunction proceeding dur- ing October and November 1936, and that Fiester had told him that the New Deal Brotherhood was employing a lawyer. Arthur Camp- bell, secretary-treasurer of the respondent, testified that he had received a copy of a handbill describing the affiliation of the Brother- hood with the Amalgamated which was distributed to the respond- ent's employees on January 4, 1937.46 Finally, the respondent was specifically informed of the Amalgamated's claim by the Amalga- mated's telegram of February 11, which the respondent ignored after consultation with several employees favorable to an inside union. With respect to its explanation of the motive for its action, the respondent's persistent and complete disregard of the employees' rights guaranteed by the Act as both hereinbefore and hereinafter discussed completely negatives its professed desire to have its em- ployees select representatives for collective bargaining in conformity with the provisions of the Act. After the election, the meetings between Posey and the elected committee, which included Howard, the night foreman, as its chair- man, present a striking contrast to the respondent's resistance to the collective bargaining efforts of the Brotherhood. The Brotherhood had been able to secure recognition and a contract only after a 2-year period of ceaseless struggle on its part, and then only by engaging 46 In addition to the respondent 's discriminatory discharge of the three Brotherhood officials hereinabove discussed , there were the coercive actions and statements of its super- visory staff both before and after the affiliation of the Brotherhood with the Amalgamated. This handbill reads in part as follows : August 26 to September 31, 1036-New Deal Brotherhood merges with the Amal- gamated Association of Iron , Tin & Steel Workers of North America. Local 1035 A. A. I. T. & S. W. of N. A. chosen as the sole collective bargaining agency of Lancaster Iron Works employees . Demands are now being formulated and these demands are being backed by the most powerful national affiliated lodges of the American Federation of Labor. A conference with the Lancaster Iron Works will be called in the near future and if the conference is denied , the fight is on. LOCAL 1035 A. A. I. T. & S. W. OF N. A. While Campbell did not fix the date upon which he received this notice we infer that it was reasonably near the (late of its distribution. 283031-41-vol. 20-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a strike . At the first meeting on February 19, 1937, Posey im- mediately "fell in line" with the suggestion of the Committee regard- ing its intention of forming a new union and stated that he would recognize and contract with such an organization as the bargaining representative of the employees as soon as . it represented a majority. Then, in order to insure against demands by the employees for a change in their existing working conditions , Posey furnished the Committee with a copy of the old Brotherhood contract to submit to the employees . Thereafter, the successive events culminating in the ,execution of the closed -shop contract with the hastily formed I. W. U. ,eloquently illustrate the length to which the respondent went in order to destroy the Amalgamated and promote the first-named organiza- tion as the bargaining representative of the employees . At the only -meeting ever held by the I. W. U. before it entered into contractual -relations with the respondent-the meeting on March 1-only 93 employees, less than a majority , were present . Even assuming that -the 93 employees attending this meeting became members of the I. W. U. by being present, there is no evidence that any more than .that number ever indicated an intention of becoming members thereof --until after the respondent had granted the organization a closed shop .on March 11 . We conclude that on March 11, when the closed shop was orally granted by the respondent , the I . W. U. did not represent a majority of the respondent 's employees . Thus, in its haste firmly -to establish the I . W. U. as the bargaining representative of the em- ployees and also set up machinery for the purpose of discriminating :against striking Amalgamated members, the respondent did not satisfy this fundamental prerequisite to any valid grant of closed ,shop privileges to the I. W. U. Nor can the signatures of employees obtained to the petitions prepared by Frain and Whitmer be con- sidered .as supplying this deficiency of membership in the I. W. U. The fact that the closed shop had already been granted at the time -,these petitions were circulated on March 11, coupled with the instruc- tions by the respondent 's supervisory employees and timekeepers to .the employees when they were receiving their pay to the effect that it was necessary to join the I. W. U. by signing one of these petitions in order ,to remain in the respondent's employ, conclusively shows that signatures secured to the petitions were and are not evidence of -voluntary action by the individual employees signing, but rather that :signatures obtained thereon were the direct result of the respondent's resort to practices condemned by the Act , and we so find. As stated above, coincident with granting the closed shop, the re- spondent delegated to the I.. W. U. authority to determine which striking . employees should be permitted to return to work , conducted a back-to-work movement jointly with the I . W. U., and gave each LANCASTER IRON' WORKS, INCORPORATED 775 striker returning to work by March 12 a financial reward of $5, and thus contributed additional support to the I. W. U. The I. W. U. thereafter established the "black list" of Amalgamated members who would not be permitted to return to work. In this manner the respond- ent delegated authority to a dominated organization to practice dis- crimination against Amalgamated members participating in the strike and thus secured their elimination from the respondent's employ. Since the closed shop in favor of the I. W. U. went into effect for all practical purposes on March 11, the formal acknowledgment of its existence contained in the exchange of letters between the I. W. U. and the respondent on April 1 and 2 set forth above, requires no discussion. In addition to the foregoing we, find that by granting the check-off privilege, permitting the I. W. U. to hold meetings in the plant, the 5 cents an hour wage increase, and the unsolicited vacation privileges, the respondent contributed further substantial support to the I. W. U. We find that the respondent has dominated and interfered with the formation and administration of the I. W. U. and has contributed financial and other support to it; and has thereby and by its other acts heretofore described, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 .of the Act.47 We also find that the contracts, above mentioned, both oral and written, entered into by the respondent and the I. W. U. are of no force and effect because they were made with a labor organ- ization assisted by the respondent's unfair labor practices, which did not represent a majority of the employees when the oral closed-shop contract was made and did not represent an uncoerced majority of the employees when-the written contract was made.48 E. The refusal to bargain collectively 1. The appropriate unit The coii7plaint alleges that all the employees of the respondent, except salaried and supervisory employees, constitute a unit appro- 41 Titan Metal Manufacturing Company v. National Labor Relations Board, 106 F. (2d) 254 (C. C. A. 3), enf'g Matter of Titan Metal Manufacturing Company and Federal Labor Union, No. 19981, 5 N. L. R. B. 577 ; McNeely & Price Co. v. National Labor Relations Board, 106 F. (2d) 878 (C. C. A. 3), modifying and enf'g as modified Matter of McNeely & Price Co. and National Leather Workers Association , Local No. 80 of the C. I. 0., 6 N. L. R. B. 800; Stackpole Carbon Company v. National Labor Relations Board, 105 F. ( 2d) 167 (C. C. A. 3), modifying and enf'g Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America , Local No. 502, 6 N. L. R. B. 171; National Labor Relations Board v. Griswold Manufacturing Company, 106 F. (2d) 713 (C. C. A. 3), enf'g Matter of Griswold Manufacturing Company and Amalgamated Associa- tion of Iron, Steel and Tin Workers of North America, Lodge 1197, 6 N. L. R. B. 298. 48 Stackpole Carbon Company v. National Labor Relations Board, 105 F. (2d) 167 (C. C. A. 3), modifying and enf'g Matter of S'tackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R . B. 171. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate for the purposes of collective bargaining. The respondent admitted this allegation in its answer. At the hearing, the Amal- gamated" asserted that all the production and maintenance em- ployees of the respondent, excluding salaried employees, clerical employees, roadmen, watchmen, truck men, and supervisory employees such as foremen, assistant foremen, and gang bosses, constitute an ap- propriate bargaining unit. No evidence, however, was introduced in the record in support of its contention.50 The record shows that the Brotherhood, the Amalgamated's predecessor, had bargained with the respondent for a period of approximately 2 years as the representa- tive of the employees in the unit alleged in the complaint to be appropriate and, as such representative, entered into a written con- tract with the respondent on March 25, 1936, for a period of 1 year. Since the only bona fide collective bargaining disclosed in the record was conducted on the basis of the unit alleged to be appropriate in the complaint, we see no reason for a departure from that unit.51 Accordingly, we shall adopt the unit alleged in the complaint to be appropriate. We find that all the employees of the respondent, exclusive of salaried and. supervisory employees, constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to employees of the respondent the full benefit of their rights to self-organization and to collective bargain- ing and otherwise effectuates the policies of the Act. 2. Representation by the Amalgamated of a majority.in the appropriate unit It is alleged in the complaint that the respondent refused to bar- gain with the Amalgamated on or about February 18, 1937, on March 2, 1937, and at all times thereafter. At the hearing, the respondent introduced in evidence a list of employees,. excluding salaried employees and supervisory employees, except those below the rank of foremen, on its pay roll as of March 5, 1937, an inter- mediate point in the pay-roll period extending from February 24 to March 10, 1937. This list contained the names of 242 employees 40 Since we have found I. W. U. to be company dominated, the Amalgamated is the only bona fide labor organization with an interest in the determination of the bargaining unit. See Matter of Stehii and Co., Inc. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local #133, 11 N. L. R. B. 1397. 60 The company 's pay roll was not classified according to jobs and there was no indica- tion in the record as to which employees were classified as gang bosses, roadmen, watch- men, and truckmen. 0 See Matter of American Can Company and Engineers Local No. 36, at at., 13 N. L. R. B. 1252. LAN'C ASTER IRON WORKS, INCORPORATED 777 Within the appropriate unit.52 To those 242 employees should be added 4 persons 53 whom we have found to have been discriminatorily discha'r'ge'-d` before March 5, 1937, and" 17 employees who were laid off prior to the strike and who had not been recalled by March 8, 1937, but who retained their status as employees .14 The Amalgamated submitted 205 signed membership cards in evi- dence.- At the hearing counsel for the Board and counsel for the respondent stipulated that the signatures on 139 of these cards signed before March 5, 1937, were those of employees on the pay roll of the respondent as of that date.55 To this number should be added the four persons discriminatorily discharged.51 In addition, the signa- tures on the cards of 14 of the 17 laid-off employees 511 referred to above are admitted by the respondent to be genuine. Thus, 157 of the 263 employees in the appropriate unit on March 5, 1937, signed 112A stipulation between counsel for the Board and counsel for the respondent refers to 244 employees on the respondent's pay roll on March 5, 1937, but only 242 names appear on said pay roll. 13 These are Lurty Thompson, Philip C. Hahn, Edward J. Walton, and Roy Constine, who had signed Amalgamated cards prior to February 11, 1937. 61 Respondent Exhibit No. 12 listed the following persons who had signed Amalgamated cards, but who were not on the pay roll of March 5, 1937, as having been laid off prior to March 5, 1937: Thomas O'Neil, Melvin Schlossnian, John Smith, Richard Sigman, Paul J. K. Sachs, Michael Todd, Enos B. Troop, Charles Warfel, Clyde E. Wilier, Walter Burk- holder, D. S. Boatman, Clarence K. Benedict, Harry Bender, Henry Bucher, W. S. Dobbs, Amos H. Hess , and Harry Waddell. There: is a conflict in the evidence concerning the status of these laid-off employees. Albert Seitz, the respondent's accountant, testified that a laid-off employee is not discharged, and that he is subject to recall; that "if we receive a slip, a quit slip, from the department head, marked `laid off' the man is taken off the pay roll. If a man is marked `laid off' for lack of work there is no quit list put through" ; that such "quit slips" were received for the employees listed prior to March 5, 1937. However, Respondent Exhibit 12 lists these employees as "laid off," whereas other individuals on the same exhibit have the notation "quit" opposite their names. Further evidence that these individuals continued as employees is found in the fact that three of them, Warfel, Sigman, and Smith, were included in the blacklist of strikers prepared by the I. W. U. (See footnote 42, supra.) We find that the above-named laid-off employees retained their status as employees on March 5, 1937, and hence are included in the compu- tation of the respondent's employees on that date. However, even if this group were not included, the Amalgamated's status as majority representative on that date would not be affected thereby. This exhibit also lists the names of 21 persons on the pay roll of March 5, 1.937, whom counsel for the Board contends are not employees within the appropriate unit. These are included in our computation since there is no showing in the record that they are not employees within the unit found to be appropriate. w A stipulation between counsel for the Board and counsel for the respondent refers to 206 membership cards but only 205 are in evidence. The discrepancy has no material bearing on the issue of majority representation and we have accepted the latter figure. 56 As to eight other employees on the March 5 pay roll referred to in the stipulation, the cards of six bear dates between March 5 and March 10, 1937, and two are undated. They are not included herein. The remaining 58 who signed Amalgamated cards did not appear on the pay roll of March 5, 1937. W Although these persons, Hahn, Walton, Constine, and Thompson, were members of the Brotherhood at the time of their discharges, they subsequently joined the Amalgamated by signing membership cards bearing dates prior to February 11, 1937. The genuineness of their signatures on such cards is admitted by the respondent. es These employees are listed in footnote 54, supra. They signed membership cards bear- ing dates prior to February 11, 1937. Since there is no showing in the record that the signatures on the cards of three of the employees in this group, Walter Burkholder, Clar- ence K. Benedict, and Harry Bender, are genuine, their cards will be omitted from our computation herein. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated membership cards authorizing the Amalgamated to represent them for the purposes of collective bargaining. There was also introduced in evidence a list 59 containing the names of 248 employees in the appropriate unit on the pay roll of February 11, 1937, an intervening point in the pay-roll period of February 10i to February 24, 1937. The same names appear on the February.11 list of employees as appear on the March 5 list, referred to above,. except that there are six additional names on the February 11 list. Including the 4 persons discriminatorily discharged ,60 and the 17 laid-off employees ,61 there were , therefore , 269 employees in the ap- propriate unit on that date. Inasmuch as the counsel for the Board. and counsel for the respondent agreed at the hearing that 139 of the employees on the March 5 list had signed Amalgamated membership cards prior to that date , and since the record shows only 1 card 62 bearing a date indicating that it was signed between February 11 and March 5, it necessarily follows that at least 138 employees on the February 11 list had signed Amalgamated membership cards. With regard to the six additional employees on the February 11 list, the record also shows that four 63 of them signed cards prior to that date. The signatures on three 64 of the four cards are admitted by the respondent to be genuine . Therefore , the uncontroverted evi- dence shows that 141 of the employees who signed Amalgamated membership cards were on the respondent 's pay roll of February 11, 1937, and, adding to this number the 4 persons discriminatorily dis- charged,65 and the 14 laid off persons referred to above,66 that 159 of the 269 employees in the appropriate unit on that date signed Amalgamated membership cards authorizing the Amalgamated to represent them for collective bargaining purposes. At the hearing , the respondent contended that many of the em- ployees who signed membership cards later ceased to be members of the Amalgamated and did not desire the Amalgamated to repre- sent them at the time of the Amalgamated 's request to bargain. The respondent attempted to support this contention by calling as witnesses 85 employees practically all of whom were working in the plant at the time of the hearing. Ten of these witnesses were shown cards bearing their names and denied that they had signed the cards. The remaining 75 witnesses testified in substance that although they had signed cards, they did not consider themselves members, and did 59 Respondent Exhibit No. 9. 06 See footnote 53, supra. m See footnote 54, supra. 02 This is the card of Samuel Maurer dated February 28, 1937. as These are Harry Eisenberger , Harry Waddell, Quay Clark, and J. Griffith Forney. 64 Since there is no showing in the record that the signature on the card signed by Harry Eisenberger is genuine , it is excluded from our computation herein. 65 See footnote 53, supra. 60 See footnote 54, supra. LAN'CA'STER IRON WORKS, INC'ORPO 'RATED -779 not wish to be represented by the Amalgamated prior to its request to bargain. The record establishes that the names of all these witnesses, except one 67 all of whom were in the respondent's employ on February 11 and March 5, 1937, appear on membership cards submitted in evi- dence by the Amalgamated. Of the 10 witnesses who denied sign- ing Amalgamated membership cards a comparison of specimens of the handwriting of the signers of 5 of such cards with the signa- tures on the cards reveals the handwriting to be the same.68 The card of one of these five, I. N. Eberle, bears the date of March 9, 1937. Therefore, we find that 78 of these witnesses executed member- ship cards authorizing and designating the Amalgamated as their representative for the purpose of collective bargaining.69 At the hearing Roy Constine, president of the Amalgamated, testified that none of the employees who signed membership cards in the Amal- gamated, except one '70 indicated in any manner that they desired to withdraw from the organization.71 87 This employee , David Price , testified that he joined the Amalgamated in October 1936, and thereafter did not consider himself a member because he did not pay dues or attend meetings . However, his name does not appear on the membership list of the Amalgam- ated, nor is there a membership card bearing his signature in evidence. For this reason he is not considered here. ea Since the specimen of the handwriting of Melvin G. Shelton does not appear in evi- dence , no comparison could be made . However , his signature and the signatures of the remaining four witnesses cannot be part of the 139 referred to above because the signa- tures of 139 members were stipulated to be genuine after comparison. e9 Amalgamated membership cards read as follows : I hereby accept membership in the Amalgamated Association of Iron , Steel and Tin Workers of North America , through the Steel Workers Organizing Committee, and of my own free will hereby authorize the Steel Workers Organizing Committee, its agents or representatives to act for me as a collective bargaining, agency in all matters pertaining to rates of pay , wages , hours of employment , or other conditions of employment. This person, Robert Barton, sent a personal letter to Constine , the president of the Amalgamated , 2 days after he joined the Amalgamated on August 29, 1936 . He admitted at the hearing, however, that the respondent ' s act of discharging three Brotherhood offi- cials on August 26, 1936, caused him to seek withdrawal of his membership . Under these circumstances , we find that Barton did not voluntarily withdraw from the Amalgamated but was coerced into doing so by the respondent 's unfair labor practices. 71 The respondent contended at the hearing that on or about September 1, 1936, approxi- mately 78 employees signed the petition requesting the withdrawal of their membership in the Amalgamated and that a copy of this petition was presented to Roy Constine, the president of the Amalgamated , at a regular meeting held on September 14, 1936 , thus noti- fying the Amalgamated of such withdrawals. Constine denied that such a petition was received . The petition was not introduced in evidence . We have found supra that the circulation of the petition under the circumstances recited constituted an unfair labor practice . Moreover , it is apparent from the testimony of approximately 23 witnesses who testified that they signed this petition , which was openly circulated during working hours in the plant , that they did so because of the intimidatory effect of the discharges of the three Brotherhood officials, Hahn , Walton, and Constine by the respondent , a week before the petition was circulated, and other unfair labor practices of the respondent . For exam- ple, one signer of the petition , John Good , testified that he would sign anything in order to keep his job . Several witnesses testified that there was no writing at the top of the petition and they signed it only because others did . Others testified that they did not read the petition before signing it. Under these circumstances , we find that the petition was not a free expression on the part of the signers of their desire to withdraw their membership in the Amalgamated. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We pass to a consideration of the weight to be accorded the dis- claimer on the witness stand by the 79 signers of Amalgamated cards of intention to:be represented-by the Amalgamated. We^have.found that from the advent of the Amalgamated in its plant the respondent engaged in unfair labor practices designed to compel its employees to refrain from membership in that organization; that during the period preceding the affiliation of the Brotherhood with the Amal- gamated the respondent's supervisory officials threatened the em- ployees with the loss of their jobs if they joined the Amalgamated; that the respondent discharged three Brotherhood officials to dis- courage membership in the Amalgamated amongst the employees; that the respondent dominated and interfered with the formation and administration of the I. W. U. and entered into an illegal closed- shop agreement with it, thereby compelling its employees to become members of the I. W. U.72 Under these circumstances we are of the opinion that no significance can be attached to the failure of an employee publicly to admit his allegiance to an organization thus proscribed by his employer. Moreover, other evidence leads us to conclude that the disavowal of designation of the Amalgamated by these employees at the hearing was at the instance and under the compulsive influence of the respondent. At the hearing approxi- mately 15 of these witnesses admitted that they retained their mem- bership in the Amalgamated until the strike called by the Amalga- mated on March 8, 1937, which was approximately a month after the Amalgamated requested the respondent to bargain. Forty-five of these employees testified that during the pendency of the injunc- tion proceedings related above they signed the petition requesting that their shares of Brotherhood funds be transferred to the Amal- gamated. Approximately 25 others actively participated in the strike called by the Amalgamated on March 8, 1937. The actions of the employees who signed the petition and of those who gave active support to the strike is patently inconsistent with their testimony that they did not intend to be represented by that organization when it sought to bargain for them. For the reasons discussed we do not credit the testimony of these witnesses that they no longer considered themselves members of the Amalgamated- or wished to be represented by it for collective bar- gaining purposes at the times when the Amalgamated's requests for collective bargaining took place. We find that on February 18, 1937, and March 2, 1937, and at all times thereafter, the Amalgamated represented a majority of the employees of the respondent within the appropriate unit, and pur- 47 The discharges and refusals to reinstate the 44 striking employees who did not become members are considered infra and found to have been discriminatory. LAN'CASTKR IRON WORKS, INCORPORATED 781 suant to Section 9 (a) of the Act; was therefore the exclusive repre- sentative of all the employees in such unit for the purposes of collec- tive bargaining with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. 3. The refusal to bargain On February 11, 1937, the Amalgamated sent a telegram to the respondent notifying the respondent that it represented a majority of its employees and would request a conference in the near future. The telegram also warned the respondent against dealing with minorities. The respondent ignored the telegram and proceeded to conduct the so-called election of representatives discussed above. On February 18, 1937, the Amalgamated sent a letter to the respondent requesting a conference for the purposes of collective bargaining on February 20, 1937. The respondent failed to reply to the letter. On February 19 the respondent met with the Committee elected in the plant as exclusive representative of the employees. On February 28, 1937, at a regular meeting of the Amalgamated, a committee was appointed to call upon the respondent for the purposes of collective bargaining. The respondent thereafter was notified by telegram, that the Amalgamated committee would call upon it for collective bargaining purposes on March 2, 1937. This committee, accompanied by E. J. Lever, a representative of the S. W. O. C., called upon the respondent, and was met by Jacob Posey, the respondent's vice presi- dent, who stated that he had no authority to bargain, and that his father, Walter Posey, the president of the respondent, was in Her- shey, Pennsylvania, on a construction job and could not be reached by telephone. No conference was held. Neither Jacob Posey nor his father, Walter Posey, thereafter or at any time made any effort to communicate with the Amalgamated committee. At a regular meeting of the Amalgamated on March 7, 1937, the discharge of Brotherhood officials, the respondent's interference with the affiliation of the Brotherhood with the Amalgamated, its forma- tion of the I. W. U., and its refusal to meet with the Amalgamated on February 18 and March 2, 1937, was discussed. A strike vote was taken and a strike called at the plant the next day. The Amal- gamated established picket lines at the plant. Thereafter, as pre- viously related, the respondent entered into a closed-shop contract with the I. W. U., which it created, and thus precluded any further attempts at collective bargaining by the Amalgamated. The respondent admitted in its answer, that it refused to bargain with the Amalgamated on February 18 and March 2, 1937, alleging that the Amalgamated did not represent a majority of its employees on those dates. Since we have found. that the Amalgamated rep- 782 . DECISIONS OF NATIONAL LABQR RELATIONS BOARD resented a majority of the employees in the appropriate unit on February 18 and March 2, 1937, and at all times thereafter, the respondent's refusal to recognize and deal with it as exclusive repre- sentative of those employees and the respondent's recognition of the I. W. U.-as the exclusive representative, constitutes a.refusal to bar- gain collectively. We, therefore, find that the respondent on February 18 and March 2, 1937, and at all times thereafter, has refused to bargain collectively with the Amalgamated as the exclusive repre- sentative of its employees in an appropriate bargaining unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. F; Discrimination against striking employees The complaint, as amended at the hearing, alleges that the respond- ent has refused to reinstate and employ 44 named employees who participated in the strike beginning March 8, 1937, because of their membership in the Amalgamated and because they engaged in con- certed activities with other employees of the respondent for the purposes of mutual aid and protection; and that by its refusal to reinstate and employ said named employees, the respondent has dis- criminated in regard to their hire and tenure of employment within the meaning of Section 8 (3) of the Act. At the hearing, the complaint was dismissed on the motion of counsel for the Board as to Elvin Gable, Edward Dengler, Eugene Danz, John Riesenger, George Swiverling, and Lloyd Waller T3 In his Intermediate Report the Trial Examiner recommended that the complaint be dismissed without prejudice as to Charles Sallade and Harry Rahm.74 The Amalgamated filed no exceptions to these rulings. Those employees with whom we are concerned here are listed in Appendix A attached hereto and made a part hereof. We. find that the strike of March 8, 1937, was on the date of the hearing herein a current labor dispute caused directly by the respond- ent's discriminatory discharge of three Brotherhood officials,75 its inter- ference with the affiliation of the Brotherhood with the Amalgamated, its domination and interference with the formation and administra- tion of and contribution of financial and other support to the I. W. U., its unlawful refusal to bargain with the Amalgamated, and its inter- ference, restraint, and coercion of its employees in the exercise of their rights guaranteed in Section 7 of the Act. We further find that the 78 These employees did not testify at the hearing. 74 These employees did not desire reinstatement. 75 Hahn, Walton , and Constine , supra. LAN'CA'STER IRON WORKS, INCORPORATED 783 strikers listed iii Appendix All were employees whose work ceased as a consequence of that ,labor : dispute _ caused and prolonged by the respondent's unfair labor practices and that the strikers retained their status as employees within the meaning of Section 2 (3) of the Act." As such striking employees they were entitled to protection against the unfair labor practices denounced by the Act. The remaining inquiry is whether or not the respondent unlawfully discriminated against the employees listed in Appendix A. On the conclusive proof in this record the answer to that inquiry must be in the affirmative. On March 11 the respondent granted the I. W. U. closed-shop privi- leges and thus created a discriminatory condition of employment condemned under the plain provisions of the Act because the agree- ment was made with a labor organization which was dominated by the respondent. 78 In addition to establishing that discriminatory condition to reinstatement, the respondent delegated blanket authority to the I. W. U. to determine -,vhich striking employees should return to work.79 These conditions were fully publicized among the strikers by the respondent's supervisory employees, as well as by I. W. U. members,30 and were invoked against a number of the strikers who during the course of the strike applied for reinstatement.81 "This includes Charles Warfel , Richard Siguian , and John Smith , who were laid off on January 13 , 1936, January 27, 1936 , and February 10, 1936, respectively , prior to the date of the strike , and who do not appear on the respondent 's pay roll of March 5 , 1937. For their status as to employees , see footnote 54, supra. 17 Titan Metal Manufacturing Company v . National Labor Relations Board, 106 F. (2d) 254 (C, C . A. 3), enf 'g Matter of Titan Metal Manufacturing Company and Federal Labor Union, No. 19981, 5 N. L. R . B. 577 ; Stackpole Carbon Company v. National Labor Rela- tions Board, 105 F. (2d) 167 (C. C. A. 3), modifying and enf'g Matter of Stackpole Car- bon Company and United Electrical d Radio Workers of America-, Local No. 509, 6 N. L. R. B. 171. -'The respondent seeks to defend the grant of the closed shop to the I. W. U. on the ground that the I. W . U. ipsisted upon it because the non -strikers "had been subjected to threats, insults ,' and in some instances violence " on the picket line . Even if the respond- ent's reason for its action was the one asserted , it would be immaterial . But in view of the respondent 's hostility to the Amalgamated exhibited in its entire conduct heretofore reviewed , and in view of the fact that as far as the record discloses the friction between the strikers and non -strikers in connection with the picket line did not exceed that nor- mally incident to such a labor dispute ( see Republic Steel Corp . v. National Labor Rela- tions Board , 107 F . ( 2d) 472 (C. C. A. 3) ), we find its explanation of its motive unpersuasive. ' ,' See Titan Metal Manufacturing Company v . National Labor Relations Board, 106 F. (2d) 254 (C. C. A. 3), where the court specifically condemned similar action designed to break a strike and establish a company -dominated union. 80 See Section III D , supra, for findings concerning the coercive activities of the respond- ent's supervisory staff subsequent to the grant of the closed shop and the activities of the company-dominated I. W. U., including their joint sponsorship of the back -to-work move- ment under the discriminatory conditions imposed. 81 John Smith and Horace Barnes applied for reinstatement on March 15 and March 16, 1937, respectively , to William Havercamp, foreman of the machine shop , and were in- formed by him that their applications had been rejected by the I . W. U.; Lloyd Markley and Paul Fanelli applied for reinstatement at the home of William Havercamp on March 17, 1937, and were told that they were voted out by the I. W. U. ; William E. Miller applied for reinstatement to Stambaugh about the middle of April 1937 and was told that he would have to see the Shop Committee of the I. W. U . Thereafter he applied to Charles Frain , secretary of the I. W. U., but was not reinstated . Samuel Maurer applied for rein. 784 DECISIONS OF NATIONAL LABOR RFiLATIONS BOARD We have heretofore held that unfair labor practice strikers are entitled to reinstatement to their jobs upon application.82 Here the respondent on March 11, 1937, effectively precluded the strikers from returning to work and in effect discharged them by requiring mem- bership in and approval by the company-dominated I. W. U. as conditions of reinstatement. Any application for reinstatement by the striking employees after that date was obviously futile unless they satisfied the discriminatory conditions and became members of the I. W. U.83 The erection of this illegal barrier against re- instatement of these employees relieved them of the necessity of making formal application for work.84 The respondent contends that its failure to reinstate the employees listed in Appendix A was due to the existence of a valid closed-shop contract with the I. W. U. Since the contract was made with an organization established, maintained, and assisted by the respond- ent's unfair labor practices, and which did not represent a majority of the respondent's employees in an appropriate bargaining unit when the oral closed-shop contract was made on March 11, 1937, it affords no defense to the respondent's discriminatory refusal to reinstate the strikers. statement to Fiester on or about May 1, 1937 , and was rejected by the I. W. U. Charles Warfel applied for reinstatement in June 1937 and was told by Schiding and Stambaugh that he was voted out by the I. W. U. Harry G. Eisenberger applied for reinstatement to Lambertine Howard several weeks or a month after the strike and the day after his appli- cation was notified by Fiester that the I . W. U. rejected his application . In addition, 12 strikers listed in Appendix A, Floyd T. Little, Gervase Ziegler, John Cramer, Clarence Trout , Harold Campbell , Anthony C . Cunningham , Clair A . Frey , Henry Tollakseu, John Ranzinger , Benjamin Hall, George N. Miller , and John Ressell , made personal application for reinstatement during the same period and were rejected . The respondent assigned various reasons , not here material , for its refusal to reinstate them. On November 19, 1937, the Amalgamated , by registered mail , made a collective application for reinstate- ment of all the individuals named in the complaint , except Horace Barnes , including the four discriminatorily discharged employees . The respondent took no action on that appli- cation. While in some instances the respondent denied that individual applications were made as recounted above , we have no reason to 'doubt the employees ' testimony to that effect. However , even if contrary to our finding , such applications were not made, it is immaterial under the circumstances for reasons hereinafter stated. 82 See Titan Metal Manufacturing Company v . National Labor Relations Board, 106 F. (2d) 254 (C. C. A. 3), enf'g Matter of Titan Metal Manufacturing Company and Federal Labor Union, No. 19981, 5 N. L. R . B. 577; Stackpole Carbon Company v . National Labor Relations Board, 105 F. (2d) 167 (C. C. A. 3), modifying and enf'g Matter of Stackpole Carbon Company and United Electrical d Radio Workers of America , Local No. 502, 6 N. L. R. B. 171 ; Republic Steel Corp . v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3). 83 Fifteen of the employees listed in Appendix A made no individual application because of the discriminatory conditions attached to reinstatement by the respondent. 84 See Matter of Carlisle Lumber Company and Lumber and Sawmill Workers' Union, Local 2511, and Associated Employees of Onalaska, Inc., Intervenor , 2 N. L. R . B. 248, enf'd 94 F. ( 2d) 138, cert . den., 304 U. S . 575; Matter of Zenite Metal Corporation and United Automobile Workers of America , Local No. 442 , 5 N. L. R. B. 509 ; Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Join- ers of America, 7 N. L. R . B. 304; Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252 ; Matter of Shellabarger Grain Products Company and Flour and Cereal Workers Union, No. 20765, 8 N. L. R . B. 336. LA\'CAS'TE'R IRON WORKS, INCORPORATED 785 We find that the respondent by refusing on and after March 11, 1937, to reinstate the employees., listed in Appendix A unless they became members of and were approved by the company-dominated Iron Workers' Union, discriminated in regard to hire, tenure, terms and conditions of employment, thereby discouraging membership in the Amalgamated and encouraging it in the Iron Workers' Union and interfering 'with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall review briefly below such employment as the individual employees listed in Appendix A have obtained since the strike began on March 8, 1937. All desire reinstatement to, their former positions in the employ of the respondent. Henry W. Young worked 10 years for the respondent as a molder and prior to the strike of March 8, 1937, was receiving 64 cents an hour and an average weekly wage of approximately $25. After the strike and on March 17, 1937, he obtained employment as a molder in Downingtown, Pennsylvania, for 14 consecutive weeks, receiving 80 cents an hour for an 8-hour day. In August 1937 he was called back to the same work for 6 weeks, receiving the same rate of pay and working the same number of hours. His total earnings between the date of the strike and the date of the hearing were $640. He was not employed at the time of the hearing. Horace Barnes was employed by the respondent as a tool maker in the machine shop in the south plant for approximately a year and a half and prior to the strike was receiving 66 cents an hour and an average weekly wage of approximately $28. Since the strike of March 8, 1937, he was employed by the Armstrong Linoleum Com- pany as a machinist receiving 65 cents an hour when he began to work on March 18, 1937, and 791/2 cents an hour at. the time of his lay-off on September 22, 1937, earning a total of approximately $747.50. He was unemployed after September 22, 1937. James Waller was employed as a machinist's helper by the -re- spondent prior to the strike, receiving 46 cents an hour for an 8-hour day and 51/2-day week. Thereafter he was temporarily employed on odd jobs and earned approximately $187.96. He was unable to secure any employment after September 3, 1937. Frank Myers was employed as a crane operator by the respondent for 13 years, receiving 58 cents an hour for an 8-hour day and aver- aging $24 a week. Since the strike of March 8, Myers earned $189.28. Elbert E. Dobbs was employed by the respondent as a helper on the rolls and prior to March 8, 1938, was receiving 44 cents an hour for an 8-hour day and average weekly wage of between $27.50 and $30. After the strike and beginning on April 19, 1937, he received part-time employment with the Bethlehem Steel Company at Steel- 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton, Pennsylvania, and earned approximately $884 to the (late of the hearing. He received the same rate of pay at Bethlehem Steel Com- pany as he did with the respondent. Dobbs is married and lives with his family in Lancaster and travels to Steelton to work, costing him approximately $25 per month'for transportation. Floyd T. Little prior to the strike was employed by the respondent for 9 years as an electric welder, received 53 cents an hour for a 44- hour week, averaging approximately $23 a week. Between April S and December 30, 1937, when he was laid off for lack of work, Little was employed by Bethlehem Steel Company at Highspire, Pennsyl vania, located -about 32 miles from Lancaster, receiving 83 cents an hour and approximately $40 a week when working full time. He lives in Lancaster with his family and commutes daily to his work in Highspire. Since April 8, 1937, Little earned approximately $1,166.85 John Smith began to work for the respondent in 1928 as a laborer in the machine shop, receiving 44 cents an hour and averaging $19.30 'a week. Since the strike on March 8, 1937, Smith earned $121.50. Gervase Zeigler was employed by the respondent from February 1935 until March 8, 1937, as a laborer in the foundry, receiving 46 cents an hour for an 8-hour day and 44-hour week, averaging $18.40 per week. Since March 8, 1937, Zeigler received temporary employ- ment on odd jobs and earned approximately $235. William E. Miller was employed by the respondent for 5 or 6 .years as a crane operator, receiving 54 cents an hour for an 8-hour day and 44-hour week, averaging approximately $20 a week. Since March 8, 1937, Miller earned approximately $400 doing temporary work as a carpenter. Herman G. Schmidt began to work for the respondent as a molder in 1932 and at the time of the strike was receiving 64 cents an hour, averaging $25.60 for a 40-hour week. In May 1937 he was employed as a molder for about 5 weeks by the New Holland Machine Company at New Holland, receiving approximately 60 cents an hour for a 55-hour week. From July 1937 until December 23, 1937, Schmidt obtained employment with Bordun Brass Company receiving 62 cents an hour for a 421/2-hour week and earning a total of $486.90. At the time of the hearing he was temporarily laid off by the Bordun Brass Company. John Cramer began to work for the respondent during June or July 1934 as a welder and helper and at the time of the strike was receiving 48 cents an hour, averaging approximately $21 per week. Since March 8, 1937, Cramer earned a total of $67.60 on odd jobs. 81 The record through error stated that his earnings were "$11.66 and some cents." LANCASTER IRON WORKS, INCORPORATED 787 Charles Warfel worked as a welder for the respondent for 4 years, receiving 46 cents an hour for a 48-hour week. Since the strike of March 8, 1937, Warfel was employed in Perryville and Harrisburg, Pennsylvania, by Arundel Corporation, averaging between $25 and $30 per week, from June 1937 until the second week in November 1937, when he was laid off for lack of work. He was unemployed at the time of the hearing. Clarence Trout began to work for the respondent in 1925 as a molder in the foundry. At the time of the strike he was earning 64 cents an hour and approximately $25 for a 40-hour week. After the strike Trout was employed by Downingtown Manufacturing Company for 3 days, from March 29 through March 31, 1937, earn ing $18.40. He next worked at the New Holland Machine Company from April 5 to June 18, earning $312.06. He worked 2 weeks in July for Bordun Brass Company, earning $30. On August 9, 1937, he was employed by Christiana Machine Company, located approxi- mately 40 miles from Philadelphia, and earned $584.69. At the time of the hearing he was laid off by the Christiana Machine Company for lack of work. Joseph M. Hoover was employed by the respondent in September 1935 as a laborer in the foundry. At the time of the strike he was receiving 46 cents an hour, averaging $17 for a 40-hour week. Hoover. worked for Isaac Whitmer, a contractor, from the second week in April to the end of July in 1937 and earned $192. There- after, he earned $45 on odd jobs. The week before the hearing he was employed by the W. P. A. at 50 cents an hour. Samauel Maurer began, to work for the respondent on October 19, 1936, in the plate shop of the south plant, receiving 45 cents an hour, averaging $19.80 for a 44-hour week. From May 27 until October 2, 1937, Maurer was employed by the Atlantic Company and earned; $422.10. At the time of the hearing he was employed by the Gas and, Oil Products Company and had earned $101.72. Irving C. Lauekhuff, Sr., was employed by the. respondent as a, laborer in the foundry and prior to March 8, 1937, earned approxi- mately $18 a week. Since March 8, 1937, he earned a total of $441.40. at various jobs and has been unemployed since November 10, 1937. Lloyd Markley was employed by the respondent on April 1, 1936, as a laborer and at the time of the strike was earning approximately $18 a week. Since March 8, 1937, Markley earned $327. John Ranzinger began to work for the respondent on September 3, 1924, and at the time of the strike was earning 58 cents an hour and averaging between $25 and $26 per week. On May 14, 1937, Ran- zinger obtained employment from I. M. Whitmer, a contractor, and. worked 6 weeks, earning $88.43. Since March 8, 1937, Ranzinger. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earned a total of $166.32 and was unemployed at the time of the hearing. Paul ,Fanelli was employed by the respondent as a laborer in tho machine shop in March 1936, and at the time of the strike was earning approximately $19 per week. On March 23, 1937, Fanelli was employed by Rice & Weidman for 4 days at 40 cents an hour, earning $11.20. From April 5 until the second or third week in December 1937 he was, employed by Crown Can Company of Phila- delphia, Pennsylvania, and earned $694.40. Norman Glassmyer was employed by the respondent on April 15, 1936, as an overhead crane operator and at the time of the strike on March 8, 1937, was earning 44 cents an hour. Since March 8, 1937, he "got 5 weeks from relief" and from May 4, 1937, to January 10, 1938, was employed by the United States Raybestos Company, in ihlanheim, Pennsylvania, located approximately 10 miles from Lan- caster, where he earned a total of $683.87. Elmer Ashby was employed by the respondent as a molder in June 1928 and at the time of the strike on March 8, 1937, was earning an average of $25.60 per week. Since March 8, 1937, Ashby worked for the Frick Company for approximately 5 weeks, beginning about March 27, 1937, where he earned $19.60 per week. Thereafter, he was employed by the Lancaster Ice Manufacturing Company until Octo- ber 1937, and earned $366. He earned $475 in the two places and has been unemployed since October 1937. Harold Campbell was employed as welder by the respondent in September 1934 and at the time of the strike, on March 8, 1937, averaged $20 per week. Since March 8, 1937, Campbell was em- ployed by the Pennsylvania Railroad as a trackman and flagman for the period from. August 25 to October 28, 1937, earning a total of $165.10. William Ashby was employed by the respondent in March 1936, in the plate shop of the south plant on plate shears and immediately preceding the strike of March 8, 1937, was earning 44 cents an hour and approximately $19.36 per week. Since March 8, 1937, Ashby was employed by Service Coal Company from March 29, 1937, to April 10, 1937, earning $40. From April 19, 1937, to January 11, 1938, he was employed by the East Penn Gas Company where he .earned $796.76. He was unemployed after January 10, 1938. Anthony D. Cunningham began working for the respondent in 1928 in the north plant as an electric welder. Prior to March 8, 1937, he averaged approximately $27.50 per week. Since March 8 Cun- riingham was employed by Lancaster Malleable Castings Company for 6 weeks beginning on March 27, 1937, and earned approximately x$185. He was unemployed until about August 15, 1937, when he LANCASTER IRON, WORKS, INiCORP0'RATED 789 worked for Lancaster Auto Springs Company for 6 weeks at $15 a week. Thereafter lie worked at odd jobs. He earned approximately $400 since March. 8, 1937. . Richard Sigm an began to work for the respondent in April 1935 in the north plant as a blacksmith's helper averaging approximately $18 per week. Since March 8, 1937, Sigman was employed by Lan- caster Malleable Castings Company for the period from April 29 to August 6, 1937, averaging approximately $18 per week. From August 7 until December 10, 1937, Sigman was employed by the Pennsylvania Railroad, receiving 45 cents an hour for a 40-hour week. He earned approximately $540 at both places and. has been unemployed since December 10, 1937. Clair A. Frey began to work for the respondent November 1934 as an electric welder. Prior to the strike of March 8,, 1937, he was receiving 44 cents an hour, averaging $19.36 per week.' Since March 8, 1937, Frey worked periodically on farms and earned approximately $125; from September 12 to November 19, 1937, he was employed-by Brubaker's Plating Works and earned $135.15. He was unemployed at the time of the hearing. Henry Tollaksen began to work for the respondent in 1925 at the north plant as a loader, sand blaster, bucker-up, puncher and reamer, and before the strike was receiving 56 cents an hour and approxi- mately $24 per week. Since the strike on March .8, 1937, he was employed by the Arundel Company, located in Columbia, Pennsyl- vania, from the latter part of July until November 1937, averaging between $12 to $16 per week and earning a total of $200. He re- ceived no other employment during the strike and was unemployed at the time of the hearing. Benjamin Hall began to work for respondent in June 1936 in the north plant as an electric welder and prior to March 8, 1937, was earning approximately $20 per week. Since the strike of March 8, 1937, Hall obtained temporary employment with the Pennsylvania Railroad on August 5, 1937, as a laborer, receiving 45 cents an hour and earning approximately $500. At the time of the hearing he was still working for the Pennsylvania Railroad. Harry Glazer was employed by the respondent in August 1934 in the foundry as a coremaker and prior to March 8, 1937, earned approximately $25.30 per week. Glazer served his apprenticeship as a coremaker, which is considered skilled work, and has been working as a coremaker for approximately 15 years. Since March 8, 1937, Glazer was employed by Downingtown Manufacturing Company, located in Downingtown, Pennsylvania, which is approximately 36 miles from Lancaster, from March 22 until the middle of June 1937, receiving 80 cents an hour for an 8-hour day and a 40-hour week. 283031-41-vol. 20-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, from July 10, 1937, to the end of September 1937, Glazer was employed by Brodun Metal Products Company located in Lan- caster, Pennsylvania, receiving 62 cents an hour. Glazer earned about $701 in both places. His employment terminated at both of these places because of lack of work and he was unemployed at the time of the hearing. George AT. Miller was employed by the respondent for 4 years in the foundry as a molder. Prior to March 8, 1937, he earned ap- proximately $18 per week. Since March 8, 1937, Miller received employment from Lancaster Armstrong Cork Company, making caps for bottles and earning 61 cents per hour and approximately $24 per week. He began his employment at Lancaster Armstrong Cork Company about the middle of May 1937 and was employed there at the time of the hearing. John Ressell began to work for the respondent in 1935 in the foundry as an apprentice boy and was earning $18 per week prior to March 8, 1937. Since March 8, Ressell worked for Vare Brothers, contractors, as a laborer for about 2 months, beginning approximately 3 weeks after the strike; he earned $230. Thereafter, he was em- ployed by Watt and Shands in Lancaster, earning $70, and later was employed for about a month at Kunzler's Packing House earning approximately $100, where he was laid off for lack- of work. Robert Wickenheiser began to work for the respondent in the foundry as a molder on January 2, 1937, and was earning approxi- mately $24 per week prior to March 8, 1937. After the strike on March 8, 1937, Wickenheiser began to work for Stacey and Smith's Foundry in York, Pennsylvania, from March 22, 1937, until Decem- ber 23, 1937, receiving 73 cents an hour on a 40-hour week, but he was laid off on December 23, 1937, because of lack of work. William Ger f en was employed by the respondent in 1928 as an electric welder in the north plant. Immediately prior to March 8 he was earning an average of $26.50 per week. Since March 8, 1937, Gerfen was employed by Bethlehem Steel Foundry from April 1 to December 31, 1937, receiving 67 cents an hour and earning approxi- mately $1,200. Harry G. Eisenbergger was employed by the respondent on the shears and on the punch in the south plant in August 1936 and his average weekly pay prior to March 8, 1837, was $19.36. Since March 8, 1937, Eisenberger worked for John Stapf, a contractor, for 4 or 5 weeks beginning the latter part of June 1937, and earned between $80 and $90. From August 9 until December 18, 1937, he worked for a. railroad company and earned approximately $360. He was un- employed at the time of the hearing. LAN'CASTE'R IRON WORKS, INCORPORATED 791 Edwin S. alike was employed by the respondent in September 1934, as a molder in the foundry and was earning approximately $25 per week prior to March 8, 1937. Since March 8, 1937, Wike was employed by Downingtown Manufacturing Company, located in Downingtown, Pennsylvania, from March 16 to June 17, 1937, earn= ing $441.60; by C. Brubaker, as a laborer, from September 12 to October 28, 1937; earning $92; and by Columbia Keystone Machine Company from October 29 to December 20, 1937, earning $197. He was unemployed at the time of the hearing. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth above in Sections III and IV, 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 have led and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the respondent has engaged in unfair labor practices, to restore the status quo before the commission of those unfair labor practices, we will order the respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the I. W. U. and has con- tributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to withdraw all recognition from the I. W. U. and to disestablish it as a collective bargaining representative. As heretofore found, the respondent granted closed-shop privileges to the I. W. U. on March 11, 1937, entered into a written contract with the I. W. U. on March 13, 1937, concerning wages, hours, and working conditions of employees, and supplemented this contract on April 2, 1937, with provisions for a closed shop and a check-off of dues. This contract, including the closed shop and check-off, was an integral part of the systematic utilization by the respondent of an employer-created labor organization to stifle self-organization and to defeat collective bargaining by its employees. Any continuation or renewal of the contract with the I. W. U. would perpetuate the coercive pressures which have deprived employees of the rights 792 DECISIONS OF NATIONAL LABOR RFaLATIONS BOARD guaranteed them by the Act and would prevent our order to the respondent to cease and desist from its unfair labor practices from being fully effective. Accordingly, we will order the respondent to cease giving effect to such contract or any extension or renewal thereof or to any successor contract with the I. W. U. We have found that the respondent from and after April 1, 1937, checked off dues from the employees' wages for the I. W. U. The same unfair labor practices which compelled its employees to join the I. W. U. compelled them to authorize the check-off from their wages for the financial benefit of the organization which the respond- ent dominated. In order to restore these employees, so far as pos- sible, to the position in which they would have been had the respondent not deprived them of their rights under the Act, and, thus, to effectuate the policies of the Act, we will direct the respond- ent to reimburse the employees for the dues checked off from their wages for the I. W. U.86 We have found that the respondent refused to bargain collectively with the Amalgamated as the exclusive representative of its em- ployees in the unit here found appropriate. We will order that the respondent, upon request, bargain collectively with the Amalgamated as the exclusive representative of its employees, in the unit here found appropriate. We have found that the respondent discriminated in regard to hire and tenure of employment, within the meaning of the Act, against Lurty Thompson on March 4, 1936; Philip C. Hahn, Edward J. Walton, and Roy E. Constine on August 26, 1936; and against the employees named in Appendix A 87 on and after March 11, 1937, the date on which the respondent illegally granted closed-shop privileges to the I. W. U. Accordingly, we shall order the respond- ent to make these employees whole for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination against him to the date of reinstatement or placement on a preferential list, as hereinafter provided, less his net earnings 88 during said period. 80 Matter of The Heller Brothers Company of Newcomers town and International Brother- hood of Blacksmiths , Drop Forgers , and Helpers, 7 N. L. R. B. 646; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R . B. 244; Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. 67 It appears that the names of Harry G . Eisenberger and William Gerfen were inad- vertently omitted from the list of employees named in the Trial Examiner 's Intermediate Report as entitled to reinstatement. 88 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 LANCASTER IRON WORKS, INICORFOiRATED 793 The above employees whom we shall order to be made whole shall be reinstated to their former or substantially equivalent positions with the - respondent.89 Such reinstatement to be effected in the following manner: All employees hired after the commencement of the strike shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, even after this is done, there is not, by reason of a reduction in the force of employees needed, sufficient employment immediately available for the remain- ing employees, including those to be offered reinstatement, all avail- able positions shall be distributed among such,remaining employees, in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remaining after such dis- tribution, for whom no employment is immediately available, shall be placed upon a preferential list with priority determined among them by such system of seniority or other procedure as has been heretofore followed by the said respondent, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. Charles F. Campbell testified at the hearing that he. received em- ployment with Armstrong Cork Company on or about April 1, 1937, and no longer wished to return to work for the respondent. Since he was unemployed during the period from March 11, 1937, to April 1, 1937, because of the unfair labor practices of the respondent, we shall order back pay for him during this period. 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 Union, Local 2590, 8 N. L. R. B. 440, enf'd, N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8). Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 89 Eight of the employees listed in Appendix A, Benjamin Hall, Elbert B. Dobbs, John Cramer, Samuel Maurer, Anthony D. Cunningham, Charles Warfel, Richard Sigman, and John Smith, were not actually at work on March 8, 1937, the date the strike occurred. Of these, the names of Hall , Dobbs, Cramer, Maurer, and Cunningham appear on the re- spondent's pay roll on March 5, 1937, although they were not working on March 8. However, we have heretofore found that all these laid-off employees were employees on March 8. See footnote 54, supra. Between March 8, 1937, and the date of the hearing, the respondent hired at least 50 employees who had not worked for it prior to the strike. The eight laid-off employees referred to above, as well as the other strikers, are entitled to displace any new employees hired since the date of the unfair labor practice strike. Accordingly, the reinstatement of all the strikers shall be effected in the same manner as hereinafter ordered. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record-. in the case , the Board makes the following: CONCLUSIONS OF LAW 1. Amalgamated Association of Iron, Steel , and Tin Workers of North America, Lodge #1035, . and the Iron Worker's Union are labor organizations , within the meaning of Section 2 ( 5) of the Act. 2. By dominating and interfering with the formation and admin- istration of the Iron Worker's Union, and contributing financial and other support to said organization , the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. All the employees of the respondent , exclusive of salaried and supervisory employees , constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. ' 4. Amalgamated Association of Iron, Steel , and Tin Workers of North America, Lodge #1035 , is, and at all times since February 11, 1937 , has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining , within the mean- ing of Section 9 ( a) of the Act. 5. By, refusing on February 18, 1937 , and March 2, 1937, and at all times thereafter , to bargain collectively with the Amalgamated Association of Iron, Steel , and Tin Workers of North America, Lodge #1035 , as the exclusive representative of all its employees in such unit, the respondent has engaged , in and is engaging in unfair labor practices within the meaning of Section 8 ( 5) of the Act. 6. By discriminating in regard to the hire and tenure of employ- ment of Lurty Thompson, Philip C. Hahn, Edward J. Walton, and Roy Constine and the hire, tenure , terms and conditions of employ- ment of the persons named in Appendix A, the respondent has engaged in and is engaging in unfair labor practices -- within the meaning of Section 8 ( 3) of the Act. 7. 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. 8. The aforesaid unfair labor practices are unfair labor prac- tices within the meaning of Section 2 (6) and (7) of the Act. ORDER On the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, . LANCASTER IRON' WORKS, INCORPORATED 795 Lancaster Iron Works, Inc., Lancaster, Pennsylvania, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge #1035, or any other labor organization of its employees, by discharging or re- fusing to reinstate any of its employees, or in any other manner dis- criminating in regard to their .hire and tenure of employment or any term or condition of their employment; (b) Dominating or interfering with the administration of Iron Worker's Union or with the formation and administration of any other labor organization of its employees and from contributing finan- cial or other support to said Iron Worker's Union or to any other labor organization of its employees; (c) Giving effect to or performing any and all contracts or arrange- ments now existing with Iron Worker's Union relating to rates of pay, wages, hours of employment, or other conditions of employment; (d) Refusing to bargain collectively with Amalgamated Associa- tion of Iron, Steel, and Tin Workers of North America, Lodge #1035, as the exclusive representative of all its employees, exclusive of salaried and supervisory employees; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties, 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 Iron Worker's Union as a representative 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, and com- pletely disestablish Iron Worker's Union as such representative; (b) Reimburse individually, and in full, all employees who were, or still are, members of the Iron Worker's Union, for the dues, which it has deducted from their wages, on behalf of the Iron Worker's Union ; (c) Upon request, bargain collectively with Amalgamated Associa- tion of Iron, Steel, and Tin Workers of North America, Lodge #1035, as the exclusive representative of all its employees, exclusive of salaried and supervisory employees; (d) Offer to Lurty Thompson, Philip C. Hahn, Edward J: Walton, Roy E. Constine, and the employees named in Appendix A, immediate 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and full reinstatement, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section; - (e) Make whole the employees named in Appendix A ordered to be offered reinstatement for any loss of pay they, or any of them, may have suffered by reason of the respondent's discrimination against them, by payment to them of a sum equal to that which each would have earned as wages during the period from March 11, 1937, the date the respondent discriminated against them, to the date of the offer of reinstatement or placement upon a. preferential list in the manner provided by paragraph (d) above, less the net amount °0 each has earned during that period ; deducting, however, from the amount otherwise due them, monies received by them during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (f) Make whole Lurty Thompson, from the date of his discharge on March 4, 1936, and Philip C. Hahn, Edward J. Walton, and Roy E. Constine from the date of their discharges on August 26, 1936, for any loss of pay they have suffered by reason of their discharges, less the net amount 9° each has earned during that period; deducting, how- ever, from the amount otherwise due them, monies received by them during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or` other government or governments which, sup- plied the funds for said work-relief projects; (g) Make whole Charles F. Campbell for any loss of pay 'he has suffered by reason of the respondent's discrimination against him, by paying to him a sum of money equal to that which he would normally have earned during the period from March 11, 1937, to April 1, 1937, the date he received other employment, less the net amount 90 earned by him during said period, deducting, however, from the amount other- wise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects; 90 See footnote 88, supra. LANCASTER IRON WORKS, INCORPORATED 797 (h) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, copies of this Order-iii conspicuous places throughout its plant, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b),,- (c), (d), and (e) ; that it will take the affirmative action set forth in 2 (a), (b), (c), (d), (e), (f), and (g) of this Order; and that its employees are free to become or remain members of the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge #1035, and that it will not discriminate against any employee because of membership or activity in that organization; (i) Notify the Regional Director for the Fourth Region within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the allegations of the complaint with respect to Elvin Gable, Edward Dengler, Eugene Danz, John Riesinger, George Swiverling, Lloyd Waller, Charles Sallade, and Harry Rahm be, and they hereby are, dismissed. APPENDIX A Irvin C. Lauckhuff. James Waller. Gervase Zeigler. Elbert B. Dobbs. Edwin S. Wike. Samuel Maurer. Richard Sigman. John Smith. Norman Glassmyer. Clarence Trout. Elmer Ashby. Lloyd Markley. Henry W. Young. Henry Tollaksen. Joseph M. Hoover. Robert Wickenheiser. George N. Miller. William Gerfen. Clair A. Frey. William Ashby. Anthony.D. Cunningham. Horace Barnes. William E. Miller. Charles Warfel. Floyd T. Little. Paul Fanelli. Benjamin Hall. John Cramer. John Ressell. Frank Myers. Harold Campbell. John Ranzinger. Herman D. Schmidt. Harry Glazer. Harry G.' Eisenberger.