Monticello Manufacturing Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1939

17 N.L.R.B. 1091 (N.L.R.B. 1939)

In the Matter Of MONTICELLO MANUFACTURING CORPORATION and STEEL
WORKERS ORGANIZING COMMITTEE, No. 2085,1 AFFILIATED WITH THE
Co rurrris FOR INDUSTRIAL ORGANIZATION
Case No. C-10.4.-Decided November. 30, 1939
Iron and Sheet Metal Display Fixtures and Equipment Manufacturing Indus-
try-Interference, Restraint, and Coercion: engendering fear of loss of employ-
ment for union membership ; ridiculing union buttons ; persuading employees
not to join and to drop union membership ; company-favored union ; inviting
rival labor organization to organize plant ; assisting it by discouraging mem-
bership in disfavored union ; paying for transportation of prospective members
to rival's union hall and paying employees' initiation fees and dues; entering
into closed-shop agreement with-Company-Dominated Unions: inside union
formed and sponsored by supervisory employees, at suggestion of executive
officer of respondent, to deflect interest from outside union commencing mem-
bership drive; solicitation by supervisory employees; although defunct, ordered
to cease and desist-Discrimination: discharge of active union member discrim-
inatory, his promotions and bonus earnings refuting defense of inefficiency and
interrupting work of other employees ; making closed-shop agreement with labor
organization assisted by respondent's unfair labor practices, thus not within
proviso of Section 8 (3), held discrimination as to terms and conditions of
employment; discharge of 16 employees under closed-shop agreement held dis-
criminatory as to hire and tenure; previous discharge of employee not member
of union held nondiscriminatory, complaint dismissed-Closed-Shop Contract:
employer ordered to cease giving effect to invalid closed-shop contract entered
into with favored labor organizationRein.statemen,t Ordered: for employees
discriminatorily discharged-Back Pay: awarded to employees to be reinstated.
Mr. Walter B. Chef f, for the Board.
Mr. Frank S. Pryor and Mr. Hollis G. Davison, of Frankfort, Ind.,
for the respondent.
Mr. Joseph A. Pathway, by Mr. Herbert S. Thatcher, of Washing-
ton, D. C., and Mr. Hugh Gormley, of Indianapolis, Ind., for the
A. F. of L.
Mr. Sidney Sugerman, of counsel to the Board.
1 The complaint designated the charging union as Steel Workers Organizing Committee
No. 1076. On motion made at the hearing , the Trial Examiner ordered the pleadings
amended so as to substitute No. 2085 for No. 1076 in the designation , conforming to the
Union 's new charter number.
17 N. L. R. B., No. 109.
1091
1092 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
DECISION
AND
.ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Steel Workers
Organizing Committee, No. 1076, herein called the S. W. O. C., the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eleventh Region (Indianapolis, Indiana),
issued its complaint dated July 11, 1938, against Monticello Maim-'
facturing Corporation, Elwood, Indiana, herein called the respond-'
ent, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7), of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. The
complaint, with a copy of the amended charge annexed, and a notice
of hearing were duly served upon the respondent and the S. W. O. C.
The complaint alleges in substance that on June 22, 1937, the
respondent discouraged membership in the S. W. O. C. by discharg-
ing three named employees 2 and refusing them reinstatment, because
they had joined and assisted the S. W. O. C.; that on and after said
date the respondent dominated and interfered with the formation
and administration of Association of Metal and Wire Workers, a
labor organization, herein called the Association, contributing
financial and other support to it; that on and after March 30, 1938,
the respondent assisted Federal Labor Union No. 21578, affiliated
with the American Federation of Labor, herein called the A. F. of L.,
by encouraging membership of the respondent's employees therein
and in other ways, to the end that the A. F. of L. obtained .in agree-
ment from the respondent on April 5, 1938, whereby membership in
the A. F. of L. was required as a condition of employment; that on
April 12, 1938, the respondent discouraged membership in the S. W.
O. C. and encouraged membership in the A. F. of L. by discharging
17 named employees 3 in default of their membership in the A. F.
of L. and because they had joined and assisted the S. W. O. C.; and
that by the acts and practices above mentioned, as well as by anti-
union statements and various other means, the respondent interfered
2 At the hearing the name of Robert Buckles was ordered stricken from the complaint, on
motion of the Board ' s attorney , thus reducing the number of discharged employees in this
group to two.
8 At the hearing the name of Burgess Shull was ordered stricken from the complaint, on
motion of the Board's attorney, thus reducing the number of discharged employees in this
group to 16.
MONTICELLO MANUFACTURING CORPORATION 1093
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7.of the Act.
On July 13, 1938, the respondent filed its answer denying sub-
stantially all the material allegations of the complaint as to the
discriminatory character of the discharges, as to the respondent's
domination of the Association, as to the respondent's assistance to
the A. F. of L. and discouragement of membership in the S. W. O. C.,
and generally as to the respondent's interference with, restraint, and
coercion of its employees. The answer affirmatively alleges good and
sufficient cause for the discharges of June 22, 1937; that the A. F.
of L. was designated bargaining- representative of the employees by
the free choice of a majority of them and unassisted by the
respondent ; and that the respondent entered into a valid closed-shop
agreement with the A. F. of L., in performance of which the dis-
charges of April 12, 1938, were necessarily executed.
Pursuant to notice duly served upon the respondent and the
S. W. O. C., a hearing was held at Elwood, Indiana, from July 20
to 27, 1.938, before Herbert Wenzel, the Trial Examiner duly desig-
nated by the Board. On the first day of the hearing, after three
witnesses had been heard on the Board's behalf,4 the A. F. of L.
filed a petition with the Trial Examiner alleging its involvement in
the amended charge and complaint and requesting leave to intervene
in the proceeding and defend its-interest. The petition was granted
forthwith. The Board and the respondent were represented at the
hearing by counsel, and the A. F. of L. by its general representative;
all participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties."
At the close of the hearing the Board's attorney made two motions :
(1) To have the pleadings amended to conform to the proof; (2) to
have Respondent Exhibit No. 41 submitted to Northwestern Univer-
sity for documentary analysis. The Trial Examiner granted the first
motion and, reserving his ruling on the second, denied the latter
in his Intermediate Report. During the course of the hearing the
Trial Examiner made several other rulings on motions and on
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
4 Of those three witnesses, only one, Whitaker, had testified on matters within the issues
affecting the A. F. of L.'s interest . Whitaker had been cross -examined by the respondent's
counsel. The A. F. of L. did not request the witness' recall to the stand for further cross-
examination. Material portions of his testimony were corroborated by subsequent witnesses
who were subject to cross-examination by the A. F. of L.
G The A. F . of L.'s opportunity in this regard was limited, without objection on its part,
to matters bearing upon its interest in the proceeding , as such interest might appear.
1094 DECISIONS. Ol NATIONAL LABOR RELATIONS BOARD
On November 4, 1938, the Trial Examiner filed an Intermediate
Report finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 ( 1), (2), and ( 3) and Section 2 (6) and (7), of the Act,
substantially as alleged in the complaint, except that the discharge of
Mary Osborn on June 22, 1937 , was for good cause unrelated to her
union membership or activities . Accordingly , the Trial Examiner
recommended that the respondent cease and desist from its unfair
labor practices, from giving effect to the agreement made with the
A. F. of L., and from recognizing the A. F. of L. as exclusive bargain-
ing representative of the employees ; that the respondent reinstate all
the employees discharged as alleged , with back pay; that the re-
spondent withdraw recognition from and disestablish the Association
that the respondent post notices to its employees to all the foregoing
effect; and that the complaint be dismissed as to the allegedly dis-
criminatory discharge of Mary Osborn.
On November 19, 1938, the respondent filed exceptions, together
with a brief in support thereof , to the Intermediate Report. Ou
January 9 , 1939, the A . F. of L . filed exceptions to the Intermediate
Report. On September 23, 1939, expressly waiving its privilege of
oral argument, the respondent filed a supplemental brief in lieu
thereof. On October 3, 1939, a hearing was duly held before the
Board in Washington, D. C., for the purposes of oral argument, in
which the A. F. of L. participated by counsel.
The Board has considered the exceptions and briefs filed and the
argument presented . In so far as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, the Board
finds them to be' without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent , an Indiana corporation having its principal place
of business in Elwood , Indiana, is, engaged in the manufacture and
sale of iron and sheet -metal display fixtures and equipment . During
the fiscal year ended June 30, 1938 , the respondent purchased $126,-
673.46 worth of raw materials for manufacture , of which 35 per cent
was transported into the State of Indiana from other States. Eighty-
six per cent of its products are shipped outside the State of Indiana,
by rail and truck . Its gross sales for the 6-month period ended
December 31, 1937, amounted to $100,431 .60. The respondent employs
about 125 persons in production and maintenance.
MONTICELLO MANUFACTURING CORPORATION 1095
II. THE ORGANIZATIONS INVOLVED
Steel WWTorkers Organizing Committee, No . 2085,8 Affiliated with
the Committee for Industrial Organization (now the Congress of
Industrial Organizations ), herein called the C. I. 0., is a labor
organization admitting to membership all production and mainte-
nance employees of the respondent , excluding clerical and super-
visory employees.
Federal Labor Union No. 21578, affiliated with American Federa-
tion of Labor, is a labor organization admitting to membership all
employees of the respondent.
Association of Metal & Wire Workers was an unaffiliated labor
Organization admitting to membership all employees of the re-
spondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The S. W. O. C. began organizing the respondent's employees in
the middle of June 1937. About 28 of the employees were signed to
membership, principally through the efforts of Whitaker, the local
organizer, and Cornelius, a welder in the plant's wire division.
Shortly before June 22, 1937, Ballinger, one of the die setters, was
called into the office of Melvin, president of the respondent. In the
presence of Coates, plant superintendent, Melvin told Ballinger that
he had reports that 90 per cent of the employees were members of
the C. I. 0., and that most of these were in the wire division. Melvin
asked Ballinger, and said that lie had called in others and asked each
of them, whether or not he was a member of the C. I. O. Ballinger
did not join the S. W. O. C. until March 31, 1938. In this conversa-
tion Melvin singled out Cornelius and two others as the active
organizers in the plant. His further remarks concerning Cornelius
will be discussed in Section III B below. At the same time Melvin
asked Ballinger, "How about organizing a little Union of our own?"
The events following this suggestion, leading to the formation of the
Association, will be discussed in Section III C below.
At the beginning of the S. W. O. C.'s organizational drive, Bush,
a wire bender, had signed one of the membership cards distributed by
Cornelius, but destroyed it on the advice of Derry, a foreman in the
sheet metal department, "`that it would be best if (Bush) wouldn't
turn it in." Bush did not join the S. W. O. C. until March 28, 1938.
Suffice it at this point to observe that after June 1937 and until the
end of March 1938 the S. W. O. C.'s ranks were depleted and the
campaign came to a halt.
See footnote 1 above.
247384-40-vol. I7--70
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The S. W. O. C.'s drive took new life on March 28, 1938. For 6
weeks past the plant had been operating at peak production on day
and night shifts of 10 hours each, 7 days a week. During that period
the workers on night shift had had no break in their schedule, al-
though it had previously been the respondent's practice to alternate
shifts weekly. On March 26, 1938, Bush and another employee,
Hartley, who was not a member of the S. W. O. C., notified their fore-
men, Denton and Manis, that they would not report for work the next
night, Sunday. Others followed their lead and stayed away from
work, with the result that the plant was shut down during the night
of March 27. On their return to work on March 28, Hartley and
Bush were called into Coates' office, charged with responsibility for
the shut-down, and discharged. In an atmosphere of dissatisfaction
and unrest several of the employees walked out with Hartley and
Bush. They went to the S. W. O. C. headquarters and joined that
union. On March 29, 1938, through the intercession of the Labor De-
partnient of the State of Indiana,' the men were reinstated to their
positions, to which they returned with their union buttons in full dis-
play. Immediately Hartley was twitted about his button by a fore-
inan, Truman Leisure, who flicked it and said, "When are you going
to start eating those badges?" Denton ridiculed another employee,
McKinley, in these words : "Do you know what that C. I. O. button
stands for on there? Civilized idiots."
In the meantime, on March 28, after the discharge of Hartley and
Bush, Coates warned Ballinger, while the latter was at work, "You
may be met by a gang on the outside this evening. Well, they will
probably want you to join the C. I. O. It looks pretty bad, especially
for these boys that have large families."
On March 29, when Manis and Gillum, both foremen, were attempt-
ing to revive the then moribund Association, they called Bradley, an
employee, into the superintendent's office. Bradley at the time was
wearing his S. W. O. C. button. Manis, noticing it, said, "Well,
Bradley, it looks like you made a slight mistake. You better join
over to the Association of Metal and Wire Workers." Earlier that
-day Gillum had told Albert Creamer, an employee, that if the latter
signed with the S. W. O. C. he would be out of a job. Gillum also
told Van Buskirk, another employee, at the latter's home that day,
"Well, if you join up with the C. I. O. you will get kicked out . . .
I am afraid that the C. I. O. will get kicked out in the street." The
foremen called various other employees into the superintendent's
office that day and warned them not to hold membership in the
S. W. O. C. if they wanted to keep their jobs.
° Referred to in the testimony as the "State Labor Board."
DIONTICRLLO MANUFACTURING CORPORATION 1097
On March 30, Hartley, one of the reinstated employees, was called
into Melvin's office, where, in the presence of Truman Leisure, produc-
tion problems were first discussed. Asking Hartley whether they
were still and would continue to be friends, Melvin said, "We start
from scratch, but there is one thing I want." Rising from his desk
and walking around to where Hartley was seated, Melvin demanded,
`I want that thing right there. I want that badge." When Melvin
reached for Hartley's button, the latter held him off and said, "Mr.
Melvin, that is a thing that you are not going to get." Melvin be-
rated him for joining a ".rabble organization," denounced- him as "a
man without a soul," and ordered him from the office with the declara-
tion, "I know you for the snake you are now . . . Get back to your
job, but, Hartley, understand this, the first mistake you make you are
fired."
As Hartley returned to his bench, remarking to several fellow
workers that he had "just got (his) hair combed," Tom Creamer was
called into Melvin's office. Tom Creamer was a member of the
S: W. O. C. who, the night before, had been asked about his union
affiliation by Foreman Gillum with the remark, "You want to keep
your job, don't you?" Melvin had scarcely finished saying, "Well,
Creamer, I didn't think it of you ... I didn't think you would be
against me," when the men in the plant, aroused to suspicion of Mel-
vin's purpose in calling them into his office one at a time, protested
that they must be seen en masse. Foreman Manis conveyed their
protest to Melvin, who invited them all into his office. The em-
ployees' dissatisfaction had not crystallized into any clear-cut de-
mands. They had neither program nor spokesman. Melvin in-
quired who would speak for them, and one of their number, Oran
Brown, was then and there designated spokesman. Reminding
Brown that he was a newcomer to the plant, Melvin immediately
characterized him as a "parasite." Bush testified without contradic-
tion that Melvin "stated that the boys pulled a fast one on him when
they got taken back to work and he would take care of the Labor
Board." Melvin evidently referred to the Indiana State Labor Board,
through whose offices the men had been reinstated on March 29. Be-
fore Brown could say anything on his group's behalf, Melvin ordered
him thrown out of the office by Truman Leisure. Brown left the office
without resistance or disturbance, remaining for awhile in the plant
with the other employees, who had peacefully filed out of Melvin's
office as soon as Brown left. Melvin came into the plant and ordered
the men to work. After exchanging more words with Brown,
threatening him with fisticuffs, and having some slight physical en-
counter with him and Creamer, Melvin ejected Brown, who was fol-
lowed out by Hartley and several others. Later that night the em-
1098 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
ployees met at the S. W. O. C. headquarters and voted to strike. The.
next day, March 31, a picket line was thrown around the plant, which
remained shut down until April 5, 1939.
When Melvin arrived at the plant early the first morning of the
strike, Whitaker introduced himself as a C. I. O. organizer and asked
Melvin to meet with a committee of the employees to settle the strike.
Melvin replied to Whitaker, "I don't like your color," and that he
would not deal with the C. I. O. in any manner. He expressed a
preference for the A. F. of L. as a labor organization. Melvin also
said he would move the plant to Kokomo, Indiana, rather than have
anything to do with the C. I. O.
The next day, April 1, the A. F. of L. obtained the respondent's
recognition as exclusive bargaining representative, and by April 5
had obtained a closed-shop agreement. Discussion of the process of
its organization and the negotiation of the agreement will follow in
Section III D below.
On March 31, Foreman Denton visited Ballinger's home to persuade
the latter to join the A. F. of L., cautioning him, "Well, you know if
the C. I. O. gets in, the plant may shut down. I know the old boy
(referring to Melvin)." The next day Foreman Gillum calve to Bal-
linger's house to solicit his membership in the A. F. of L., saying, "If
you wait until the A. F. of L. gets in your job will be taken out."
Denton also told Bush to join the A. F. of U. or "you will be out of a
job, and you have been working here quite a while and you have got
a pretty good record. I would just advise you to drop the C. I. 0."
Similar statements, in the form of advice, warnings, and exhortations
were made by various other supervisory officials to individual em-
ployees on March 31 and April 1.
On March 31, Superintendent Coates, Howell, the respondent's sec-
retary and treasurer, Mitchell, its office manager, and other super-
visory officials massed a group of non-picketing employees at the
respondent's warehouse several blocks from the plant. Howell in-
structed the men that it was Melvin's wish that they break the picket
line while he tried to get in touch with the A. F. of L. organizer in
Indianapolis. He said he had been informed that the men would
have to be back at work before the A. F. of L. could organize the
plant. The group went down to the picket line, which held its ranks
without trouble. On returning to the warehouse the men were told
to disband and they would hear from the respondent later in the day.
While the plant was being picketed on April 2, the respondent's
two counsel in this proceeding drove up to the picket line in an auto-
mobile and gave the strikers a local newspaper of current issue con-
taining an item, indicated by heavy pencil marking, to the effect that
the respondent's plant would reopen on April 4 under a contract with
the A. F. of L.
DIONTIC.LLO JIANUFACTURING CORPORATION -1099
On April 4 a field representative of the Board succeeded in obtain-
ing in writing from the respondent an agreement to reinstate all the
employees on the March 29 pay roll, "without any discrimination or
prejudice." The strike was ended and on April 5 the plant reopened.
All returned to work except Oran Brown, who refused reinstate-
ment. On the same day the respondent signed a closed -shop agree-
ment with the A. F. of L . requiring membership in the latter
organization as a condition of employment , to be satisfied within 5
days . During that period the respondent 's supervisory staff con-
-tinued its efforts as in the past to discourage membership of the
employees in the S. W. O. C.
The respondent has contested the allegedly supervisory status of
.any of its employees other than Melvin, Howell, and Coates. It main-
tains that the various men designated by it as and calling themselves
foremen, to whom we have referred , had no power to hire or dis-
charge and were in fact production workers too, merely responsible
for the lay-out of work in their divisions.
In its exceptions to the Intermediate Report and in its supplemental
brief the respondent admits that the employees alleged to be foremen
did bear the title "assistant foremen " or "sub-foremen ." Most of
the individuals whose supervisory status is in question testified at the
hearing. In each case they were interrogated as to their duties, and
admitted their supervisory status. The fact, relied on by the re-
spondent , that the employees in question were admitted to member-
ship in the A. F. of L. is immaterial to the issue of their supervisory
status. The closed-shop contract required A. F. of L. membership
of all employees without distinction . We find that they were over-
seers and foremen with duties and powers identifying them with the
management of the respondent 's business.
The evidence upon which the findings in this section are based is
not without its contradictory aspects at every turn. In the welter
of evidence two main, opposing lines of testimony are demarcated.
In resolving the issues, due regard has been given to the test of
credibility urged upon us by the respondent in its brief.
By dissuading its employees from membership in the S. W. O. C.,
and by ridiculing and threatening them for their activities on that
union 's behalf, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
B. Discharge of Cornelius and Osborn
Adolph Cornelius had been in the respondent 's employ about 1
year when he was discharged on June 22 , 1937. In that time he had
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been promoted successively to several higher positions, last working-
as a welder.
Cornelius became actively interested in the S. W. O. C. from the
first day it came to Elwood. He alone of the respondent's employees
attended its early meetings. He joined the S. W. O. C. about June 1,.
1937, and began at once to solicit memberships among the employees,.
distributing cards through men whom he had selected in the several
divisions of the plant. No attempt seems to have been made to con-
ceal this activity, which came to the respondent's attention as found'.
in Section III A above.
On June 22, as Cornelius received his pay check, Coates discharged
him, saying, "You and a few others around here have got an idea
of breaking company rules . . . Cornelius, your kind is not wanted
out here. You get the hell out and stay out. Get the hell off the-
property." Without denying that he made this statement, Coates
testified that Cornelius was discharged for not doing his work and
for visiting with other employees on the job and interrupting their
work in violation of the shop rules. The respondent does not contend
that the discharge followed immediately upon any breach of rules..
There is nothing in the record to show that Cornelius failed to heed
the warning alleged to have been given him by Coates some time-
before.
We do not believe that Cornelius was discharged for the reasons
assigned by the respondent. Discipline in the plant was loose, even
among the foremen. Employees fraternized, smoked, wandered from
their tasks on occasion, and otherwise behaved in a manner which
stricter supervision might have prevented. However, until the S. W.
O. C. activities opened, the respondent treated the situation with no.
concern and with only sporadic corrective measures. If Cornelius
was indeed guilty of infractions of the shop rules, which he denies,
he was nevertheless considered a satisfactory worker. He had been
elevated to the position of welder shortly before his discharge. In
every pay check, including the last, he received a bonus earned for
production in excess of his schedule.
The cause of his discharge we find to have been his union mem-
bership and activity. Melvin and Coates indicated that in their con-
versation with Ballinger immediately before Cornelius' discharge,.
when they were running down the source of the activity and planned
to combat it with a "little union" of their own. The acrimony of
Coates' remarks to Cornelius when dismissing him betrays a deeper
resentment than Cornelius' alleged infractions would be expected to
cause.
We find that the respondent discharged Adolph Cornelius on June
22, 1937, because of his union membership and activities, thereby dis-
MONTICRLLO MANUFACTURING CORPORATION 1101
couraging membership in the S. W. O. C., and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
Cornelius revisited the plant about 6 or 8 weeks later and asked for
reinstatement, but Coates ordered him away. He had been earning
$18 a week while in the respondent's employ; and thereafter to the
date of the hearing, during a period of about 13 months, he earned
approximately $500 at other employment.
Mary Osborn had been employed by the respondent for 2 years
and 3 months prior to her discharge on June 22, 1937. She was
assigned to work primarily in the packing department. She had
never taken an interest in the S. W. O.- C., and did not become a
member of that union until May 1938, almost a year after her dis-
charge. The day before her discharge, in a conversation with Dan
Hoose, the foreman who announced the dismissal to her, she ex-
pressed a preference for an inside union to the C. I. O.
Mary Osborn testified that when Hoose paid her off, discharging
her for "causing a disturbance in the packing room," she asked,.
"Why? Because I want higher wages and shorter hours, as advo-
cated by the C. I. O.?' She testified that Hoose confirmed that as:
the reason. At the hearing he testified that no mention of it was-
made. The respondent contends that Mary Osborn was discharged,.
among other proper causes, for failure to perform work laid out.
for her by Hoose on June 21 before his leaving the factory on a
business trip. During his absence she refused to take orders from
her immediate superior left in charge, so that on Hoose's return the,
next day the work was entirely undone. He reported the incident
to Coates on June 22, the day she was discharged.
In view of Mary Osborn's non-membership in the S. W. O. C. and
non-participation in union activities, and her admitted expression to.
Dan Hoose, before her discharge, of a preference for a "company
organized union," the record fails to establish that she was dis-
charged because, as alleged in the complaint, she had joined and
assisted the S. W. O. C. and engaged in concerted activities with
other employees for the purposes of collective bargaining and.
other mutual aid and protection.
We find that by discharging Mary Osborn the respondent did not
discriminate in regard to her hire and tenure of employment. The•
complaint will be dismissed with respect to Mary Osborn.
C. Domination of the Association
On June 22, 1937, within a few days after Melvin's suggestion that
"a little union of our own" be organized to deflect interest from the-
emerging S. W. O. C., Truman Leisure, who at that time had not.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as yet been promoted to the position of foreman, circulated a petition
among the employees during working hours to form the Association.
Leisure claims that he started the organization of the Association on
his own initiative, and that Melvin upbraided him for his activity
in its behalf on company time, deducting a half-day's pay from
Leisure's wages for the time devoted to it. Even if that is true, it
is evident that the respondent proposed and gave impetus to the new
organization.
The first meeting of the Association was held after hours that same
day on the respondent's premises. Three meetings were subsequently
held elsewhere, in the course of which officers were elected and, with
the aid and advice of an attorney who was paid by the Association
for his services, a constitution and bylaws were prepared. Elmer
Manis, secretary and elected representative of his division, of which
he was soon after made foreman, testified that the constitution and
bylaws were lost and that he had no other books or records of the
Association.
Within a month a committee of the Association met with Melvin,
Howell, and Coates and obtained some slight increases in the rates of
pay for the employees. The S. W. O. C.'s drive having aborted,
interest in the Association was permitted to wane and immediately
the employees were without self-organization, outside or inside. As
Ballinger put it, ". . . the boys were all disgusted about (the Asso-
ciation). They had no faith ..."
On March 28, 1938, coincidentally with the renewal of the S. W.
,O. C.'s activities at the plant, Marais, Gillum, and Denton, foremen,
and Mitchell, the office manager, attempted to revive the Associa-
tion. They called employees into the superintendent's office indi-
'vidually, and met them on the outside, and urged them to sign up
again with the Association, telling them to drop or avoid membership
in the S. W. O. C. or risk losing their jobs. Typical of these efforts
of the supervisory employees to enlist membership in the Association
was Albert Creamer's experience on March 29. During that day
Foreman Gillum met Creamer in town and asked him to sign a card
renewing his membership, saying that the respondent was having
trouble with the C. I. O., which he warned Creamer against joining.
Gillum assured Creamer that Melvin was behind the Association.
When Creamer reported for his night shift that evening, he was met
at the front of the plant by Superintendent Coates, Denton, and
Gillum. He noticed that the plant was strangely not in operation.
Coates told Creamer that an Association meeting was to be held at
a local hotel and that Creamer had "better go on up." That meeting
-was attended by foremen. What was done there does not appear
an the record.
.0NTICELLO MANUFACTURING CORPORATION 11O
However, the Association vras short-lived. A strike occurred on
March 31, as related in Section III A above, and the respondent im-
mediately transferred its energies from an attempt to inspire the
lifeless Association to the promotion of the A. F. of L., as we find
below. The Association was "dropped" and is no longer in exist-
ence.
We find that the respondent dominated and interfered with the,
formation and administration of the Association, and contributed
support to it; and that the respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. As it appears that the Associa-
tion has ceased to function, we shall withhold the usual order direct-
ing the respondent to disestablish the Association as a representative,
of its employees for the purposes of collective bargaining. Never-
theless, in conformity with our practice in the past under circum-
stances of the kind here found, we will issue such order as we deem'
necessary to bar a resumption or repetition of the activities which
constituted the unfair labor practices."
D. The closed-shop contract with the A. F. of L.
In the early evening of March 31, while the strike continued, word
was sent around by the respondent to various supposedly "loyal"
employees that they should congregate at the house of Howell, the
respondent's secretary and treasurer, from which point they would'
journey to the Labor Temple at Frankfort, a, distance of about 35
miles, and join the A. F. of L. Foremen visited the homes of
employees to round up as many as possible for the trip. They rep-
resented to the employees that attendance of at least 15 of them.
was necessary in order to obtain a charter for a local union. They
told the employees that free transportation would be provided and
that employees would incur no expense either in traveling to and
from the A. F. of L. headquarters in Frankfort or in becoming mem-
bers of that organization. Those with automobiles who were to,
transport the party were told to have their gasoline tanks filled at
a. station in town owned by the brother of Dan Hoose, a foreman..
Hoose furnished several of the employees with written orders upon
his brother to "fill bearer's car with gas and oil." The orders were.
received in evidence. Howell asked Harry Miller, an employee, to
drive some of the employees out to Frankfort, where, he said, "We
a-re going . . . to sign the A. F. of L." He told Miller to get his
gasoline at the Hoose station "and the rest will be taken care of."
8 See Consolidated Edison Company v. National Labor Relations Board , 59 S. Ct. 206 ;
Matter of Wisconsin Telephone Company and Telephone Operators Union , 12 N. L. R. B.
375.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoose's brother, at his own instance, made out a sales slip for Miller's
signature in receipt, charging the purchase to the respondent di-
rectly. Miller signed it. The receipt is in evidence.
The respondent denies that it either authorized the purchase of
.gasoline and oil on its account or thereafter paid for it. Dan
Noose claims to have directed the purchases on his personal credit
and to have paid his brother in full the next day. He also claims
to have rendered a bill for reimbursement for this outlay to the
A. F. of L. on April 21. He admitted at the hearing that his bill
had not yet been paid. Although the A. F. of L. may ultimately
have paid the amount of the purchases, we believe that the respond-
ent arranged the financing preliminarily. There is no other plaus-
ible explanation in the record why the sales slips were made out in
the respondent's name, especially as the respondent rarely had such
purchases made for its account, and then only on office requisitions.
Moreover, Hoose offers no credible reason why he, a foreman, vol-
unteered payment for the gasoline purchases without promise or
expectation of reimbursement, when the A. F. of L. organization at
the plant was still a matter of anticipation. Besides, even if Hoose,
a foreman, so acted on his own initiative, the respondent is respon-.
sible, though it had no actual participation in the undertaking.9
The employees enlisted for the trip to Frankfort gathered at or
outside Howell's home, where Superintendent Coates waited around
until the group assembled. Bert Leisure, a brother of the foreman,
'Trueman Leisure, arrived early and was invited into Howell's house
by Coates. Coates asked him whether he knew the purpose of his
being summoned there, and assured Leisure that some more em-
ployees would soon be along to make the trip, too.
Howell had already departed for Frankfort before the group
started out. He claims to have gone there, with no knowledge of
the forgathering and expedition of the employees, in order to engage
-counsel for advice in the strike situation. We do not believe his
testimony in that regard.' He appeared at the Labor Temple later
that evening, in the company of counsel, while the employees were
there being organized. Obviously this was no chance happening.
Why the respondent's counsel "took [Howell] up there to see what
was going on," as Howell testified, if neither of them had any ad-
mitted interest in the A. F. of L. or any admitted expectation of
meeting the employees there, is left by Howell to mere conjecture,
when his presence and actions there call for frank explanation. We
'believe Howell went to the union hall with full knowledge of the
9 Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 6111, and United Packing House Workers Local Indus-
trial Union No. 300, 7 N. L. R. B. 269, enf ' d as mod ., Swift & Company v. N. L. R . B., 106
'F. (2d) 87 (C. C. A. 10).
MONTICFLLO MANUFACTURING CORPORATION 1105
Plan to organize the respondent's employees into an A. F. of L. local,
and with full expectation of meeting them there to see that purpose
.achieved.
Hobbs, an employee, testified that he on his own initiative went to
Indianapolis on March 31 to inquire of the A. F. of L. headquarters
about joining that organization. His testimony impresses us less
with its improbability than with its abbreviation of the whole truth.
He appeared at the picket line that morning, and then went to the
warehouse where, as we have found, Howell told the "loyal" em-
ployees he was trying to get in touch with the A. F. of L. organizer
in Indianapolis. From there Hobbs went to Indianapolis, had a
talk with the A. F. of L. representative, and was advised to organ-
ize through the Council at Frankfort. He returned to Elwood, met
Dan Hoose, the foreman, at the warehouse, and reported what he had
done. Hobbs then proceeded to Frankfort, met an A. F. of L. or-
ganizer, arranged to have sufficient employees there that evening to
form their organization and receive their charter, and again reported
back to Hoose in Elwood. The sequence of Hobbs' activities for .the
day is based substantially on his own testimony, pieced together
with other trustworthy evidence in the record. After a day so con-
sumed in shuttling back and forth, assertedly on his own initiative,
Hobbs himself did not attend at the union hall that evening when
some 34 other employees signed up. He had a "date." We believe
that Hobbs did all of this at the instance of Howell and Hoose on
the respondent's behalf, and we so find.
Among those of the respondents' supervisory staff present in the
hall from time to time when the employees signed their cards and
took their oaths were Howell, Hoose, Denton, Mitchell, and Elmer
Manis. An initiation fee of $2 was payable for each membership
taken. A large number of those fees, if not all, were paid by the
respondent then and there. Foreman Denton admits having paid
over money for the fees of six employees, by way of personal loan to
two men who were without funds, and merely by passing cash handed
to him by four other employees. Hoose and Mitchell, too, admit
having paid the fees of eight or nine more employees, by personal
loan. Witnesses for the Board testified that they had not asked for
loans and that repayment was never demanded ; that the money was
advanced for them without question, principally by Denton, who
stood at the organizer's table with a sheaf of bills in his hand as the
employees filed by. Bert Leisure left the hall for a bite to eat and in
a nearby restaurant saw. Howell seated with Clyde, the respondent's
insurance broker, when Mitchell came in and said that he needed
more money. Leisure testified that Clyde furnished some money to
Mitchell, who returned to the hall. Although the respondent called
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clyde as a witness on its behalf, he failed to deny Leisure's story;
and while Mitchell did testify that he had not "borrowed" any money
from Howell or Clyde on that occasion, Howell did not testify un-
equivocally on the point. He testified that he did not recall Mitchell's.
saying that more money was needed, and did not see Clyde provide
it. We find that the respondent provided financial aid and assistance
to the employees in the organization of their A. F. of L. local.
A federal union charter was granted to the employees that night..
The next day, April 1, Superintendent Coates approached Gardner,.
an employee who had just signed a S. W. O. C. membership card,.
and told him that if he wanted to get back to work it would be
necessary to join the A. F. of L. Gardner, testifying on the Board's-
behalf under subpena, said that he did want the, work and that,.
against his will, he signed up with the A. F. of L. He was still in
the respondent's employ at the time of the hearing. He and other-
employees met that day at the respondent's warehouse, where the A.
F. of L. organizer continued inducting members, issuing receipts for-
initiation fees supplied by the respondent. Howell and Mitchell were
present during those proceedings.
At about 1 o'clock in the afternoon of that day, the respondent
signed a short agreement with the A. F. of L. recognizing the latter
as exclusive bargaining representative of the employees, and provid-
ing that negotiations as to wages, hours, and other conditions of
employment should be conducted at a later date. The agreement
stipulated that the A. F. of L. had proven its designation by a major-
ity. Melvin testified that before signing it he personally scrutinized
73 to 76 signed cards proffered by the A. F. of L., constituting more
than half the number of employees on the respondent's last preceding-
pay roll. No mention of a closed shop was made in the April 1
agreement, and.no hint of its being in contemplation was given to-
the striking employees upon or before their reinstatement pursuant
to the written assurance against discrimination given to the Board's.
representative on April 4.
On the first day of the employees' return to work, April 5, the.
respondent, in spite of its agreement not to discriminate, entered into-
a, formal contract in writing with the A. F. of L. respecting wages,
hours, and other conditions of employment, and providing, among-
ether things, that all employees should be, or within 5 days become,.
members of the A. F. of L. The term of the agreement was fixed at-
1 year, automatically renewable in default of notice otherwise.lo
10 The agreement was supplemented in May 1938 . in respects not material to our consid-
eration. It appears from the respondent ' s supplemental brief filed in lieu of oral argument
before the Board , that at its expiration the agreement was superseded by one executed!
April 5, 1939, by the respondent and the A. F. of L. for another term of 1 year, which is
presently running. The current agreement appears to contain a closed - shop requirement.
ZION TICLLLO IIAN UFACTURING CORPORATION 1107
The arrangements made on March 31 for the organization of an
A. F. of L.. local union were part of the respondent's deliberate plan
to pit the A. F. of L. against the S. W. 0. C., to break the strike,
and to defeat the S. W. 0. C. The A. F. of L. had never attempted
to organize the respondent's plant. The employees had never re-
vealed any interest in that labor organization until March 31. The
testimony of several witnesses for the respondent that employees had
discussed among themselves, a day or two before then, the desirability
of organizing under the aegis of the A. F. of L., is an ill-concealed
effort to absolve the respondent of a clear connection with the move-
ment. The respondent sought out the A. F. of L. on the first day of
the strike, encouraged it to organize the plant, cooperated financially
and in other material ways to endow it with the membership of a
majority of the employees, rushed into hasty recognition of the A.
Y. of L. as exclusive bargaining representative, and shortly thereafter
climaxed its assistance to the A. F. of L. by granting it a closed shop.
We find that the sole recognition agreement of April 1 and the
closed-shop agreement of April 5 between the respondent and the
A. F. of L. were not the result of collective bargaining between the
respondent and the freely designated representatives of its employees,
but were executed on the respondent's initiative as an integral part
of its program of discouraging the S. W. 0. C. and assisting the
A. F. of L. by acts of interference, restraint, and coercion.
We find further that the respondent, by entering into the closed-
shop contract under the circumstances described, discriminated in
regard to the terms and conditions of employment of its employees,
thereby encouraging membership in the A. F. of L. and discouraging
membership in the S. W. 0. C.; and that the respondent thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
E. The mass disdharge of April 1R, 1938
During the 5 days in which the employees were required to become
members of the A. F. of L. in order to continue in employment, the
respondent posted a notice on the bulletin board that it had signed a
contract with the A. F. of L. "as the sole bargaining agency . . . ,
and employees have five days' time in which to become members of
this sole bargaining agency . . ." Immediately, the supervisory em-
ployees renewed their attacks on the C. I. 0. and endeavored to per-
suade the workers to join the A. F. of L. Thus, Foreman Denton
told Bush, "You have to join the A. F. of L. or you will be out in five
days." Foreman Twiford told McPhearson the same thing in Bal-
linger's presence. Beyond such urgings and warnings spread by the
foremen in a manner implying a threat such as had been held over
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the past, the respondent did nothing until April 12 to
make known to the employees the explicit closed-shop contents of its
contract with the A. F. of L. In the sense that the posted notice was,
susceptible of construction that employees were being offered an op-
portunity for a limited time only to join the A. F. of L., as a privi-
lege and not as a compulsory condition of continued employment, the
notice was ambiguous.
On April 11, Foreman Denton told a group of employees while
they were at work, "Well, we are having a meeting, an A. F. of L.
meeting. You can go ahead and work, but you will get paid if you
go to the meeting." The men left the factory for about 3 hours to
attend the meeting, and were paid by the respondent for the time
spent there.
On April 12,' the 5-day period having expired, 16 employees 11 were
discharged in a group, in the presence of Melvin and the respondent's.
counsel. Counsel read the closed-shop provisions of the contract to-
the assembled employees who had not become members of the A. F.
of L. One of them asked, "In other words, that means we are fired
if we don't join the A. F. of L.?" Counsel answered in the affirmative
and, according to one witness, remarked that they were in the "wrong-
Union."
The complaint alleges that these employees were discharged not
only under the compulsion of an illegal contract, made with a labor-
organization assisted by the respondent's unfair labor practices, but
also because those employees exercised the rights guaranteed by Sec-
tiolR 7 of the Act, in that they had joined the S. W. O. C. It further
alleges that the respondent thereby discriminated in regard to the-
hire and tenure of their employment, thus discouraging membership-
in the S. W. O. C., and that by the making of the closed-shop agree-
ment the respondent discriminated in regard to the terms and condi-
tions of their employment, thus encouraging membership in the A. F.
of L. and discouraging membership in the S. W. O. C.
The respondent admits that it discharged these employees on April
12 because they were not members of the A. F. of L., but pleads the-
closed-sl}op contract in justification, and denies that they were dis-
charged because they were members of the S. W. O. C.
It is provided in Section 8 (3) of the Act that:
. . . nothing in this Act . . . shall preclude an employer from,
making an agreement with a labor organization (not established,,
maintained, or assisted by any action defined in this Act as an.
unfair labor practice) to require as a condition of employment.
n Namely, William Hill, Edward Van Buskirk, Clarence Ballinger, Allen Mitchell, Clarence-
McPhearson, Lawrence J. Walker, Clifford Miller. Roscoe McKinley. Lee Brooks, Thomas'
Creamer, Calvin Bradley , Otis Hickman, Bert Manis, Wilbur Hartley , Thomas Bush, and:
Albert Creamer.
MONTICELLO MANUl ACTURING CORPORATION 1109,
membership therein, if such labor organization is the representa-
tive of the employees as provided in Section 9 (a), in the appro-
priate collective bargaining unit covered by such agreement when
made.
Since the closed-shop agreement of the contract of April 5 was
entered into with a labor organization which had been assisted by the
respondent's unfair labor practices, it does not fall within the proviso.
of Section 8 (3) of the Act, and cannot serve as justification for the-
discharges.
Upon the entire record we find that the respondent discharged the
16 employees on April 12, 1938, because they were not members of
and refused to join the A. F. of L. and because they had joined and
assisted the S. W. 0. C., thereby discriminating in regard to their hire-
and tenure of employment, discouraging membership in the S. W.
0. C., encouraging membership in the A. F. of L., and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
We further find that the 16 employees so discharged were earning
weekly, at the time of their discharge on April 12, and thereafter
earned in total, the respective sums set alongside their names below:-
Name of employee
Average
weekly Total since
earnings discharge
William Hill--------------------- ----- ----------------------------------- $18. 00 None
Edward Van Buskirk------------------------------------------------------ 17.50 None-
Clarence Ballinger-------- ------------------------------------------------- 20.00 None-
Alien Mitchell -------------------------------------------------------------- 23. 00 None
Clarence. McPhearson-------------------------- ---------------------------- 19.00 None
Lawrence J. Walker---------------------------------------------------- 15.50 $35.50,
Clifford Miller------------------------------------------------------------ 15. 50 None
Roscoe McKinley----------------------------------------------------------- 14.00 None
Lee Brooks..--------------------------------------------------------------- 18.00 None
Thomas Creamer- 19. 00 None
Calvin Bradley------------------------------------------------------------- 20. 00 None
Otis Hickman-------------------------------------------------------------- 16. 50 $9.00
Bert Manis-------------------------------------------------- -------------- 17.00 26.00
Wilbur Hartley ------------------------------------------------------------- 17.50 None
Thomas Bush-------------------------------------------------------------- 18.00 None
Albert Creamer------------------------------------------------------------- 17.50 None
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON. COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with its operations described in
Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in and is engaging
in unfair labor practices by interfering with, restraining, and coerc-
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing its employees in various ways in the exercise of the rights guar-
anteed in Section 7 of the Act; by dominating and interfering with
the formation and administration of the Association and contributing
.financial and other support to it; and by discriminating in regard
to its employees' hire and tenure of employment and the terms and
conditions of their employment, thereby discouraging membership in
the S. W. O. C. and encouraging membership in the A. F. of L. We
-shall order the respondent to cease and desist from its unfair labor
practices.
We have found that the respondent aided, encouraged, and assisted
the A. F. of L. by various unfair labor practices. In order to restore
the status quo and to permit the employees full freedom in self-
-organization, without hindrance by reason of the respondent's unfair
labor practices, we shall order the respondent to withdraw recognition
from the A. F. of L. as the exclusive representative of the respond-
'ent's employees for the purposes of collective bargaining, unless and
-until the A. F. of L. shall have been certified as such by the Board.12
In addition, we have found that the closed-shop contract granted
to the A. F. of L. by the respondent was an integral part of the re-
spondent's unlawful campaign of encouraging membership in and
rendering assistance to the A. F. of L., while discouraging member-
ship in the S. W. O. C. We shall order the respondent to cease and
-desist from giving effect. to the contract of April 5, 1938, as well as
.any extension, renewal, modification, or supplement thereof, and any
-superseding contract which may now be in force. Nothing in this
Decision and Order should be taken to require the respondent to vary
those wage, hour, seniority, and other such substantive features of its
relations with the employees themselves, which the respondent estab-
lished in performance of the invalid contract as extended, renewed,
'modified, supplemented, or superseded.
We have found, too, that the respondent discriminatorily discharged
Adolph Cornelius on June 22, 1937, because of his membership in and
activities on behalf of the S. W. O. C.; and 16 other employees 11 on
April 12, 1938, under color of the invalid closed-shop contract and
-because of their membership in and activities on behalf of the S. W.
'O. C. In accordance with our usual custom, we shall order the re-
spondent to offer full and immediate reinstatement to their former or
substantially equivalent positions to such of those employees, includ-
.:ing Adolph Cornelius, as have not since been fully reinstated. If
-necessary to provide employment for Adolph Cornelius, any em-
12 Matter o f Mt. Vernon Car Manufacturing Company , a corporation, and Local Lodge
No. 1756, Amalgamated Association of Iron, Steel d Tin Workers of North America, etc.,
11 N. L. R. B. 500; Matter of Lenox Shoe Company, Inc. and United Shoe Workers of
America, 4 Ni. L. R. B. 372.
11 See footnote 10.
MONTICELLO MANUFACTURING CORPORATION 1111
ployees. hired after June 22, 1937, shall be dismissed. Reinstatement
of the 16 named employees other than Adolph Cornelius shall be
effected in the following manner : All employees hired after April
12, 1938, shall, if 'necessary to provide employment for those 16 to be
offered reinstatement, be dismissed. If thereupon, by reason of a
reduction in force, there is not sufficient employment immediately
available for the remaining employees, including those 16 to be offered
reinstatement, all available 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 was applied in the conduct of
the respondent's business prior to April 13, 1938. Those employees
remaining after such distribution, for whom no 'employment is imme-
diately available, shall be phiced upon a preferential list prepared in
accordance with the principles set forth in the previous sentenee, and
shall thereafter in accordance with such list be offered employment
in their former or in substantially equivalent positions, as such em-
ployment becomes available and before other persons are hired for
such work.
We shall order the respondent to make whole those employees,
including Adolph Cornelius, for any loss of pay they may have suf-
fered by reason of their respective discriminatory discharges, by pay-
ment to each of them of a sum equal to the amount which he normally
would have earned as wages from the date of his discharge to the
date of the respondent's offer of reinstatement or, in the case of the
16 employees other than Adolph Cornelius, placement upon the pref-
erential list hereinabove described, less his net earnings 14 during said
period.
Upon the foregoing findings of fact and upon the entire record in
the case, 'the Board makes the following :
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, No. 2085, Affiliated with
the Committee for Industrial Organization, and Federal Labor Union
No. 21578, affiliated with American Federation of Labor, are labor
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have - been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica. Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B . 440. Monies received
for work performed upon Federal , State, county , municipal , or other work -relief projects
are not considered as earnings , but as provided below in the Order, shall be deducted from
the sum due the. employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county, municipal , or other government or governments
which supplied the funds for said work-relief projects.
247384-40-vol. 17-71
1112 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
organizations, and Association of Metal & Wire Workers was a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Association of Metal & ; Wire Workers, and contributing
support to it, the respondent engaged in unfair labor practices, within
the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to hire and tenure and terms and
conditions of employment of its employees, thereby encouraging
membership in Federal Labor Union No. 21578, affiliated with Amer-
ican Federation of Labor, and discouraging membership in Steel.
Workers Organizing Committee, No. 2085, Affiliated with the Com-
mittee for Industrial Organization, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
4. By assisting Federal Labor Union No. 21578, affiliated with
American Federation of Labor, and in other ways interfering with,
restraining, and coercing. its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the respondent has -engaged in .
and is engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. By discharging Mary Osborn, the'respondent did not engage in
any unfair labor practice, within the meaning of Section 8 (1) and
(3) of the Act, as alleged in the complaint.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that Monticello
Manufacturing Corporation, Elwood, Indiana, its officers, agents,
successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Asso-
ciation of Metal & Wire Workers, or with the formation and admin-
istration of any other labor organization of its employees,. and from
contributing financial or other support to said Association or to any
other labor organization of its employees;
(b) Discouraging membership in Steel- Workers Organizing Corn-
mittee, No. 2085, Affiliated with the Committee for Industrial Organi-
zation, or encouraging membership in Federal Labor Union No.
21578, affiliated with American Federation of Labor, or discouraging
MONTICELLO MANUFACTURING CORPORATION 11:1.3
or encouraging membership in any other labor organization of its
employees, by discriminating in regard to hire or tenure of employ-'
ment, or any term or condition of employment, of its employees;
(c) Recognizing Federal Labor Union No. 21578, affiliated with
American Federation of Labor, as the exclusive representative of its
employees for the purposes of collective bargaining, unless and until
that labor organization shall have been certified as such by the
National Labor Relations Board;
(d) Giving effect to its contract of April 5, 1938, with Federal
Labor Union No. 21578, affiliated with American Federation of'
Labor, or to any - extension, renewal, modification, or supplement
thereof, or to any superseding contract which may now be in-force;
(e) Urging, persuading, intimidating, or coercing its employees
to join Federal Labor Union No. 21578, affiliated with American
Federation of Labor, and not to join Steel Workers Organizing
Committee, No. 2085, Affiliated with the Committee for Industrial
Organization, or to join or not to join any other labor organization
of its employees;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con=
certed activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of 'the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Federal Labor
Union No. 21578, affiliated with American Federation of Labor, as
the exclusive representative of its employees for the purpose of deal-
ing with it concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until that labor organization shall have been certified as such
by the National Labor Relations Board;
(b) Offer to the following employees: William Hill, Edward Van
Buskirk, Clarence Ballinger, Allen Mitchell, Clarence McPhearson,
Lawrence J. Walker, Clifford Miller, Roscoe McKinley, Lee Brooks,
Thomas Creamer, Calvin Bradley, Otis Hickman, Bert Manis, Wilbur
Hartley, Thomas Bush, Albert Creamer, and Adolph Cornelius im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges, in the manner set forth in the section entitled
"The remedy" above, placing those employees for whom employment
is not immediately available upon a preferential list in the manner
set forth in said section;'
1114 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
(c) Make whole the employees named in paragraph 2 (b) above of
this Order for any loss of pay they have suffered by reason of their
respective discharges, by payment to each of them of a sum equal
to an amount determined in the manner set forth in the section
entitled "The remedy" above, deducting, however, from the amount
otherwise due to each of said employees, monies received by said
employee 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;
Qd) Immediately post, and keep posted for a period of at least
sixty (60) consecutive days from the date of posting, in conspicious
places throughout its plant, notices to its employees stating that the
respondent will cease and desist in the manner set forth in para-
graphs 1 (a), (b), (c), (d), (e), and (f), and will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c), of this Order; and
further stating that the respondent's employees are free to become
or remain members of Steel Workers Organizing Committee, No.
2085, Affiliated with the Committee for Industrial Organization, and
that the respondent will not discriminate against any employee
because of membership or activity in that organization;
(e) Notify the Regional Director for the Eleventh Region in
writing within fifteen (15) days from the date of this Order what
steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent, by discharging Mary Osborn, engaged in unfair
labor practices within the meaning of Section 8 (1) and (3) of the
Act, be, and the same hereby is, dismissed.