Ohio Ferro Alloys Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1953

104 N.L.R.B. 542 (N.L.R.B. 1953)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization , except to the extent that this right may be affected by an agreement
executed in conformity with Section 8 (a) (3) of the Act.
KNICKERBOCKER PLASTIC CO.. INC.
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be altered,
defaced , or covered by any other material.
OHIO FERRO ALLOYS CORPORATION and WILLIAM J.
BARICSKA, JAMES VANCHURA, LOUIS BERNARDO,
LEWIS PALMER, WALTER ORZOLEK, DAVID W. MORGAN,
EDWIN LOWE HOOD, PETER A. SAVAGE, KARL W.
KINDBERG, JOHN STAN, FRANK J. KUTKAL, JR., STAN-
LEY ZUBOSKI, EDWARD CHRISTOPHER, PETE DAGRAVE,
EDWIN E. NIXON, CHARLES W. SOLAK, R. R. HELMA,
JAMES A. MILLER, MIKE MORAN, JR., HAROLD GRIMIN-
GER, EDWARD SMITH, CLARENCE HOOD, JR., ANDY
KLIKA, JOHN TAYLOR, WILLIAM J. SIMPSON, LOUIS
ZALENSKI, JOHN A. KALO, HERMAN JOHNSON, WILLIAM
F. SABOTA, JOSEPH W. FRANCZAK, JOSEPH OTTO,
MARY S. JONES, EDWARD DOLEZAL, AND CHARLES T.
MOORE. Case No. 8-CA-650. April 30, 1953
DECISION AND ORDER
On November 20, 1952, Trial Examiner Thomas S. Wilson
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case, and hereby adopts
the Trial Examiner ' s findings , conclusions , and recommenda-
tions , with the following additions and modifications.i
As stated in the Intermediate Report, the United Mine Workers
struck for recognition at 6 a. m. on November 17, 1951. Later
that morning the Respondent advised the union officers that a
i The Trial Examiner erroneously reported that one of the complainants who took a leading
role in prevailing upon the employees to file charges , had been elected president of the United
Mine Workers' Local in the Respondent 's plant . The Trial Examiner apparently referred to
employee Lewis Palmer . The record shows, and we find , that Palmer had not been elected
president of the Local and that he had not held any other office in the Union.
104 NLRB No. 73.
OHIO FERRO ALLOYS CORPORATION 543
rival claim for recognition had been received, but the strike
continued. On the 20th the Union learned for the first time that
the day before United Steelworkers of America, CIO, had filed
a representation petition with the Board's Regional Office. The
UMW thereupon offered to terminate the strike and to return
all the strikers to work; no agreement was reached . Finally,
on November 24, the strikers offered to return unconditionally
but the Respondent refused to reinstate them. Only 3 of the
original 58 strikers have since been recalled.
We agree with the Trial Examiner ' s ultimate conclusionthat
the strike was at all times lawful and that therefore when the
strikers offered to abandon it they were entitled to reinstate-
ment. We do not, however, adopt his subsidiary finding that,
from November 20 on, immediate recognition remained an
objective of the strike activity. On this question , the pertinent
facts are as follows:
On November 20, 1951, representatives of the Respondent
and of the UMW met to agree on the terms of a State court
injunction to regulate the picketing at the Respondent ' s plant.
Immediately upon learning of the rival petition during the
conference , DiStefano , the Union's representative, offered to
call off the strike and to return all the employees to work. He
asked the Respondent to reinstate all the employees , to assist
in expediting a Board election on the Steelworkers ' petition
and, in the event the Steelworkers lost the election , to hold a
quick privately conducted election to afford the UMW an
opportunity to prove its majority status. The conference was
adjourned to permit the Respondent ' s representatives todiscuss
this offer among themselves. When the conference was resumed
the Respondent ' s president , Cunningham, stated that he would
not take back two strikers , Neagos and Minozzi, because they
had been convicted in a local court of assaulting a nonstriking
employee. Consideration of the proposed settlement was dis-
continued on this note . As a witness at the hearing , Cunningham
admitted that the only reason why the Respondent broke off the
discussion on November 20, and why the strike was not settled
then and there, was his refusal to reinstate Neagos and Minozzi.
The next day DiStefano met with Harris, the Respondent's
personnel director , who tried to persuade him to abandon the
UMW insistence on immediate reinstatement for Neagos and
Minozzi. DiStefano refused to yield on the two men, but said
that he would submit the matter to the union membership. On
November 24 a union meeting was held. After Neagos and
Minozzi declared their willingness to step aside so as not to
jeopardize the chances of a strike settlement , the members
voted to terminate the strike unconditionally and immediately
reported back to the plant as a group and offered to work.
On these facts, and on the record as a whole , it is clear that
on November 20 the UMW abandoned its original objective of
immediate recognition as majority representative . Its explicit
offer to return all the employees to their work, coupled with
the request that the Respondent speed a Steelworkers ' election,
in which the noncomplying UMW could not participate, Can lead
to no other conclusion. To hold that the purpose of the strike
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained immediate recognition, would be to ignore, and
indeed, to contravene the Union' s expressed intention of proving
its majority by an election at a future date. Moreover, the
Respondent' s admission , consistent with the testimony of the
General Counsel' s witnesses , that the strike would have ended
but for the dispute over Neagos and Minozzi, is practically an
agreement between the contending parties as to the objective of
the strike after November 20. We conclude, therefore, contrary
to'the Trial Examiner, that from November 20 to 24 when the
strikers offered to return unconditionally, the Union continued
the strike, not for the purpose of winning recognition, but rather
to obtain reinstatement for the two employees whom the
Respondent deemed objectionable.
Apart. from any consideration of the Respondent's right to
refuse to take back Neagos and Minozzi, the strike, under
well-established Board precedent, remained entirely lawful.'
In these circumstances it is unnecessary to decide what the
rights of the Respondent or the strikers would have been had
the original objective of the strike not been abandoned. Ac-
cordingly, we do not adopt the Trial Examiner's comments
upon the legal consequences of a strike for recognition con-
tinuing in the face of a rival representation petition.
As the strike was a protected concerted activity, the strikers
never lost their status as employees within the meaning of
Section 2 (3) of the Act.' By requiring them to make individual
applications for employment when they offered unconditionally
to abandon the strike, the Respondent clearly indicated that it
did not intend to afford them their statutory rights to rein-
statement4 In pursuing such a policy of treating the strikers
as new employees, the Respondent, by this conduct alone,
deprived them of their rights in violation of the Acts The Re-
spondent concedes that there was need immediately for a
considerable number of employees on November 24, 1951.
Without regard to the Respondent' s assertion as to precisely
how many openings were in fact available on that date, we find
that even if the regularly available jobs were less than the
number of former strikers applying for such jobs, all such
applicants who were denied reemployment were discriminated
against when the Respondent failed to reinstate any of them to
=Cf. Happ Brothers Company, 90 NLRB 1513.
N. L. R. B. v. Remington Rand , Inc., 130 F. 919, 927; N. L. R. B. v. Mackay Radio
and Telegraph Company, 304 U.S. 333.
We find no merit in the Respondent's exception that the record does not support the Trial
Examiner 's finding that the employees offered to abandon the strike again on November 24.
In addition to the evidence reported in the intermediate Report showing that the strikers, as
a group , accompanied by union officers, reported to the plant on the 24th and told the Re-
spondent that they had abandoned the strike and were available for work, the record contains
a revealing conversation between DiStefano , the union representative, and Harris, the
personnel director . On the afternoon of thesameday, Distefano called Harris on the telephone
and said, "I thought we could get together and get this thing settled and get the boys back to
work." Harris replied , "Well. Joe, I am afraid you are too late." Harris' statement leaves
no doubt as to both the Respondent 's awareness of the employees ' desire to return to work
that day and its unwillingness to take them back.
'James Thompson and Co., 100 NLRB 456; St. Mary's Pipe Company, 54 NLRB 1226.
OEHO FERRO ALLOYS CORPORATION 545
the available jobs .$ Accordingly, we find, like the Trial Exam-
iner, that by denying reinstatement to the entire group of
strikers on November 24, 1951, the Respondent violated Section
8 (a) (3) and (1) of the Act as to all of them.
THE REMEDY
As the Trial Examiner recommends, proper remedy of the
mass discrimination found requires reinstatement of the
employees who were unlawfully mistreated because of their
concerted activity. We agree with the Trial Examiner's conclu-
sion that on the facts of this case the Respondent is not now
relieved of its obligation to reinstate the 46 returning strikers
named in the complaint, merely because it hired certain
additional unskilled workers during the short-lived strike. T
The Respondent argues that regardless of any other facts
contained in the record, we must hold that for each employee
who was hired during the strike, one of the strikers lost every
right to reinstatement. On this remedy issue of the case, we
deem the following facts to be pertinent:
The Respondent opened the plant here involved on October 3,
1951, when the first furnace was turned on. A second furnace
was put into operation on November 13, 1951, 4 days before the
strike, and a third early in January 1952. During this period of
expansion, for which definite plans had been made far in advance,
the plant was in a "shakedown stage." Employees were
continuously hired as laborers and at a later stage assigned to
various classifications, none of which, however, required
skilled work.
When the strike started on November 17, there were 79
employees in the unit; 58 participated in the strike. Between
November 17 and November 24, when the strike ended, 30 new
employees were hired and started work. Within the next 6 days
the Respondent hired 40 more employees, all of whom were at
work by December 9, 1951. The planned expansion continued
steadily, but the record does not show the specific dates of
later hirings. Three strikers, Robert Kelly, Talek, and Walker,
were put back to work in late December and early January. By
April 1952, when the Board conducted an election for the
Steelworkers, there were approximately 177 eligible employees,
including 65 whose ballots were challenged but never opened.
The bulk of the challenged ballots was cast by strikers who
had been denied reinstatement.
If the group of employees in the bargaining unit had consti-
tuted a permanent and fixed complement before and after the
6 Brown and Root Incorporated , et al., 99 NLRB 1031, enforced in pertinent part 203 F.
2d 139 (C. A. 8).
7 The complaint originally listed 53 strikers ; by amendment at the hearing the number was
reduced to 49 . The Trial Examiner recommends a dismissal of the complaint as to 3 of
these: Andy Klika because he was a supervisor , Mike Moran because he had been discharged
for cause before the strike, and Edward Smith because he had been in a hospital for a week
after the strike and it does not appear that he ever returned or participated in the strike.
As the record supports these findings, and as no exceptions were filed to these recom-
mendations , we have adopted the Trial Examiner 's recommendations as to Klika , Moran.
and Smith.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike events, there would be merit in the Respondent's
argument . As the Board has consistently held, an employer is
privileged to replace economic strikers "in order to carry on
his business"; $ although an economic striker retains his status
as an employee for purposes of reinstatement to his former
position,' the employer is not required to dismiss a permanent
replacement in order to make room for the striker. Under such
circumstances, the number of permanent replacements hired
during an economic strike who are still at work when the
strikers made application directly reduces the number of
strikers entitled to reinstatement. 10 On the particular facts of
this case, however, we cannot infer, as the Respondent would
have us do, that the 30 employees put to work during the strike
and still at work at the time of the strikers' application were
hired only in order permanently to replace the strikers.
The organization of the Respondent's plant had not been
completed before the strike started, nor had its employee
complement reached its planned peak. On the contrary, the
plant was in the process of steady expansion and day-by-day
hiring was continuous before, during, and after the strike.
Nothing in the record supports the Respondent's contention
that it had abandoned its expansion plans when the strike started
and that all hirings during the strike were limited to replace -
ment of the strikers. Rather, as all employees, new-and old,
were unskilled laborers indistinguishable as to abilities and
initial duties, the Respondent's labor force was essentially an
amorphous, continuously increasing, overall employee comple-
ment.
That the Respondent's purpose in the hirings throughout this
period was not purely to protect its economic position, is also
shown by its treatment of the strikers during the first few days
after November 24, while it was taking on 40 new employees.
Although the great mass of strikers who had unconditionally
offered to return to work milled about the plant for a day or
two after abandoning the strike, none was put to work. Moreover,
11 of them yielded to the Respondent's improper insistence
that they execute applications as new employees, but were
nevertheless ignored while other unskilled workmen were being
hired. The privilege of replacing economic strikers is intended
as a shield against the economic impact of the strike. In this
case, the Respondent is attempting to use it as a sword to
destroy the reinstatement rights of striking employees.
As we consider the Respondent's demonstrated discriminatory
motivation against the strikers as a group, together with the
concomitant plant expansion, which was more than sufficient to
embrace all of the returning strikers, we are persuaded that
but for their concerted activities the Respondent would have
restored all of them to their work. Therefore we hold, like
the Trial Examiner, that the accretions to the employee group
9Arthur D . Wiltse d/b/a The Ann Arbor Press , 85 NLRB 58. 63, enforced 188 F. 2d 917
(C.A. 6).
9Columbia Pictures Corporation , 82 NLRB 568.
'ON. L. R. B. v. Mackay Radio & Telegraph Company, 304 U. S. 333, 395, 346.
OHIO FERRO ALLOYS CORPORATION 547
during the strike are insufficient reason to deny reinstatement
to any of the complainants . Indeed , the record amply supports
the conclusion that the Respondent would have added the 30
employees even if the strike had never occurred.
Because 3 of the complainants , Robert Kelly, Talek, and
Walker, have already been restored to their jobs, we shall not
order reinstatement for them but shall limit the remedy in
their cases to back pay for the period of discrimination
against them . However , in the entire circumstances of this
case , we see no reason for denying reinstatement to any of
the other complainants , and shall order reinstatement of all
43 whose names are set out in the attached Appendix A.
ORDER
U on the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the Respondent, Ohio
Ferro Alloys Corporation , Canton , Ohio , its officers , agents,
successors , and assigns , shall:
Cease and desist from:
(a) Discharging or refusing to reinstate employees in con-
sequence of or by reason of their participation in lawful strike
or other concerted activities.
(b) Discouraging membership in a union of the employees
own choice by discriminating in regard to the hire and tenure
of employment of its employees.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist a
labor organization of their own choosing , to bargain collectively
through representatives of their own choosing , and to engage
in concerted activity for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all
of such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act.
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(a) Offer to the employees listed in Appendix A herein
immediate reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges , dismissing , if necessary, all
persons hired on or after November 25, 1951 , in the manner
provided in the section of the Intermediate Report entitled
"The Remedy."
(b) Make whole all those employees listed in said Appendix A
and employees Robert Kelly , Julius Talek , and Walter J. Walker
for any loss of pay they may have suffered by reason of
Respondent ' s discrimination against them , in the manner
provided in the section of this Intermediate Report entitled
"The Remedy."
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Brilliant, Ohio, plant, copies of the notice
attached hereto and marked "Appendix B."11 Copies of said
notice , to be furnished by the Regional Director for the Eighth
Region , shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Eighth Region in
writing , within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
It In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
Baricska , William J.
Bechtel, Richard
Bernardo, Louis
Briggs, Joseph
Christopher, Edward
Czapp, George J., Jr.
DaGrave, Pete
Dolezal, Edward
Fortz, Mike
Franczak, Joseph W.
Griminger, Harold
Helms , Robert F.
Hood, Clarence, Jr.
Hood , Edwin L.
Hutkai, Frank J., Jr.
Jones , Mary S.
Johnson , Herman
Kalo , John A.
Kelly, Thomas
Kemo, Henry
Kindberg, Karl W., Sr.
Mamula, Eli
McGraw, Robert E.
Miller, James A.
Moore , Charles T.
Morgan , David W.
Nixon, Edwin E.
Orzolek, Walter
Otto, Joseph
Palmer, Lewis
Sabota, William F.
Savage , Peter A.
Simpson, William J.
Skeen, Roy
Solak, Charles W.
Stan, John
Taylor, John
Vanchura, James
Waligura, Joseph
Whiting, Elmer L.
Yanczura, Edward G.
Zalenski, Louis
Zuboski, Stanley
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of
the National Labor Relations Act, we hereby notify our
employees that:
OHIO FERRO ALLOYS CORPORATION 549
WE WILL NOT discharge or refuse to reinstate em-
ployees in consequence of or by reason of their participa-
tion in lawful strike or other concerted activities.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain
from any or all of such activities except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to the employees named below immediate
and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the
discrimination.
Bariscka , William J. McGraw, Robert E.
Bechtel, Richard Miller , James A.
Bernardo , Louis Moore , Charles T.
Briggs, Joseph Morgan, David W.
Christopher , Edward Nixon , Edwin E.
Czapp, George J., Jr. Orzolek, Walter
DaGrave, Pete Otto, Joseph
Dolezal, Edward Palmer, Lewis
Fortz, Mike Sabota, William F.
Franczak, Joseph W. Savage, Peter A.
Griminger , Harold Simpson , William J.
Helms, Robert F. Skeen, Roy
Hood, Clarence, Jr. Solak, Charles W.
Hood, Edwin L. Stan, John
Hutkai, Frank J., Jr. Taylor, John
Jones, Mary S. Vanchura, James
Johnson, Herman Waligura , Joseph
Kalo, John A. Whiting, Elmer L.
Kelly, Thomas Yanczura , Edward G.
Kemo, Henry Zalenski, Louis
Kindberg, Karl W., Sr. Zuboski , Stanley
Manula, Eli
WE WILL make the employees named below whole for
any loss of pay suffered as a result of the discrimination:
Kelly, Robert Talek , Julius
Walker, Walter J.
All our employees are free to become or remain members
of any labor organization. We will not discriminate in regard
to hire or tenure of employment or any term or condition of
283230 0 - 54 - 36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment against any employee because of membership in
or activity on behalf of any such labor organization.
OHIO FERRO-ALLOYS CORPORATION,
Employer.
Dated ................ By.... ................. .... ........
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
This matter arises upon a complaint dated July 11, 1952,1 by the General Counsel 2 of the
National Labor Relations Board, herein called the General Counsel and the Board, respec-
tively, through the Regional Director for the Eighth Region (Cleveland, Ohio). against Ohio
Ferro Alloys Corporation, herein called the Respondent, which alleged, in substance, that
the Respondent had in various enumerated ways since or about November 1, 1951. interfered
with, restrained, and coerced its employees and that on or about November 17, 1951, the
employees of the Respondent ceased work concertedly and went on strike, which strike ended
on or about November 24, 1951, when the various named employees applied for reinstatement
but that the Respondent refused to reinstate the said employees because they had assisted or
had become members of the United Mine Workers Union, hereinafter called the Union or
UMW, or had participated in the strike of November 17, and that thereby the Respondent had
engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (3) and Section 2 (6) and (7) of the Labor Management Relations Act of 1947, 61 Stat. 136,
herein called the Act. The Respondent duly filed its answer admitting certain allegations of
the complaint but denying the commission of any unfair labor practices. Copies of the various
charges, complaint , and notice of hearing thereof were duly served upon the Respondent and
the individuals involved.
Pursuant to notice a hearing was held between July 28, 1952, and August 1, 1952, inclusive,
at Steubenville, Ohio, before the undersigned Trial Examiner. The General Counsel and the
Respondent were represented by counsel . All parties participated in the hearing and were
given full opportunity to be heard , to examine and cross -examine witnesses , to introduce
evidence bearing upon the issues , to present oral argument , and to file briefs and proposed
findings of fact or conclusions of law or both The General Counsel and the Respondent
argued orally at the conclusion of the hearing and the Respondent on September 9, 1952,
filed a written brief.
Upon the entire record in the case and from his observation of the witnesses , the under-
signed makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Ohio Ferro Alloys Corporation is, and has been at all times material herein, a corpora-
tion duly organized under and existing by virtue of the laws of the State of Ohio with its
principal office in Canton , Ohio. It owns and operates plants in Tacoma, Washington , Phflo,
Ohio, and Brilliant , Ohio, where it is now and has been continuously engaged in the manu-
facture of ferro-alloys. The Respondent , in the course and conduct of its business opera-
1 The complaint is based upon original charges filed by various individual complainants
on and after December 12, 1951, and subsequent amended and additional charges filed by
these individuals, the last of which was filed on May 21, 1952.
2 The term specifically includes the counsel for the General Counsel appearing at the
hearing.
OHIO FERRO ALLOYS CORPORATION 551
tions, annually causes and has continuously caused , at all times mentioned herein, its
finished products , having a total value in excess of $25,000, to be sold , transported, and
delivered in interstate commerce to and through the States of the United States other than
the State of Ohio from its plants within the State of Ohio . The Respondent , in the course and
conduct of its business operations , annually causes and has continuously caused , at all times
material herein , its finished products , said finished products having a total value in excess
of $50 , 000, to be sold to the Timken Roller Bearing Company and Republic Steel Corpora-
tion , each of which , in turn , annually causes and has continuously caused, at all times
material herein , their products , having a total value in excess of $25 , 000, to be sold , trans-
ported, and delivered in interstate commerce to and through the States of the United States
other than the State of Ohio from their plants within the State of Ohio.
The Respondent admits, and the undersigned finds, that the Respondent is engaged in
commerce within the meaning of the Act.
IL THE LABOR ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50, and United Steelworkers of America, CIO,
herein called the Steelworkers , are labor organizations admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The facts of this case are very simple . The law applicable thereto is not. In addition to
being simple the facts of this case are hardly in dispute except for a difference of about
24 hours between the witnesses for the General Counsel and those for the Respondent re-
garding events occurring on and after November 24 , 1951 . However , due to various tech-
nicalities introduced into the field of labor relations by the Taft -Hartley Act , a complicated
legal situation has arisen from these simple facts.
When the instant case arose the Respondent was operating three separate plants. One of
these was located at Philo , Ohio, on Muskigum River, a few miles south of Zanesville,
Ohio . A second was at Tacoma , Washington . The plant involved in this case was located
near Brilliant , Ohio , a few miles south of Steubenville , on the Ohio River.
The Philo plant is the oldest of these three . The employees at this plant have been repre-
sented for the purposes of collective bargaining since 1937 by the United Steelworkers of
America , CIO. Employees at the Tacoma plant have been represented by this same Union
since an N. L.R.B. election and certification in 1942 . During World War II, the Company
operated a third plant at Wenatchee , Washington , which was owned by the Defense Plant
Corporation . The employees at the Wenatchee plant were represented by the Laborers
and Hod Carriers Union , AFL, following an N.L . R.B. election and certification.
Construction of the Brilliant plant began early in 1951 . A few employees were hired
beginning in July . Operations at this plant actually commenced on October 3, 1951, when
the first of 3 $450 , 000 furnaces was turned on. At this time, more employees were hired,
bringing the total number of employees to around 55 at that time . A second furnace was put
into operation on November 13, 1951 ; and in an anticipation of this, and of cleanup work
which had to be done upon completion of the construction of this furnace, additional em-
ployees were hired , so that as of November 16, 1951 , there was d total of 93 employees at
this plant, including 5 plant-protection personnel and 8 supervisory personnel.
Beginning about the time the first furnace went into operation on October 3, 1951, the
United Mine Workers began a campaign to organize the Respondent ' s employees at the
Brilliant plant . R. D. Crawford , then plant superintendent , maintained close watch over
this development through reports coming to him from his lower supervisory personnel.
As is common knowledge United Mine Workers has never seen fit to comply with the
requirements of Section 9 (f), (g), and (h) of the Act , which require the filling of non-Com-
munist affidavits by union officers with the Board and the filing of financial and other data
with the Secretary of Labor . By the terms of the Act this failure to comply deprives United
Mine Workers of the right to avail itself of the processes of the Board in matters of repre-
sentation as well as of unfair labor practices . This fact complicates this whole case and
explains most of the subsequent events herein.
By registered letter dated November 13 , 1951 , and received by the Respondent at Brilliant
the following day, United Mine Workers informed the Respondent that it was the representa-
tive of the majority of the Respondent ' s employees at the Brilliant plant and requested the
Respondent to so recognize and bargain with it on behalf of those employees . This letter was
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forwarded to, and received by, John P. Harris,I Respondent ' s personnel director, at the
Respondent ' s main office at Canton , Ohio , on November 15, 1951.
Also on November 15, 1951, Harris testified that he received a telephone call in Canton
from one Goss , an official of the Steelworkers , who orally requested that the Respondent
bargain with his Union , claiming that a majority of the Respondent ' s employees at Brilliant
had become members of that Union.4 Harris answered that the Respondent was unable to
recognize and bargain with the Steelworkers because of the conflicting claim to recognition
which he had already received from United Mine Workers.
On November 16, 1951, Joseph DiStefano , regional director of UMW, called at the Brilliant
plant and requested the guard , Chief of Police Larke , for permission to see Superintendent
Crawford , telling Larke that he desired to discuss the matter of recognition and bargaining
with Crawford . Upon orders from Crawford , Larke , who also handled at least part of the
labor relations work at the plant ,6 then informed DiStefano that the Respondent ' s officials
were busy in the plant and unable to see him that day but would see him the following day
if he would return . DiStefano left with a remark to the effect that tomorrow night might be
too late as the employees were in the mood to strike.
About 6 a.m. on Saturday , November 17, 1951, the Respondent's employees struck and
began picketing the Respondent 's plant because of the Respondent 's failure to meet with
UMW to discuss recognition and bargaining . All parties agreed that the UMW was striking
for recognition . The Respondent 's records proved that out of a total nonsupervisory em-
ployment of 79 employees , 58 ceased work in concert on November 16, and that only 21
employees continued to work during the strike . In order to keep the 2 furnaces operating,
the Respondent was forced to transfer personnel from its Philo plant to Brilliant and to
advertise for employees.
About 7: 30 a. in ., or slightly, thereafter, DiStefano met with Respondent ' s president, Mr.
Ronald Cunningham , at the plant gate where he again demanded that the Respondent recog-
nize and bargain with UMW. In answer Cunningham advised DiStefano that "We would meet
with no union in connection with recognition ; that the employees of that plant or any other
plant would have the right to vote, a secret vote, for the Union of their choice, and that we
would not become embroiled in an unfair labor practice of recognizing a union by the manner
which he was attempting." DiStefano replied that he would continue to picket the plant until
the Respondent recognized the Union. That ended the conference and the strike continued. 6
By letter dated November 17, 1951. Harris from Canton answered UMW's request for
recognition by refusing on the ground that there were conflicting claims for recognition
made by United Mine Workers and by the Steelworkers and thus the Respondent was required
to await an N.L.R.B. certification before recognizing either Union. 7
On Monday , November 19 , the Respondent sought injunctive relief in the State court
against the mass picketing which was going on at its plant . On Tuesday, the parties met
in the offices of the Respondent's Attorney Albaugh in Steubenville and agreed upon the
terms of the injunction which thereafter issued . It was during this conference that the UMW
learned that the Steelworkers had that day filed with the Board a petition for certification
to become the bargaining agent for the Respondent ' s employees.
At this same meeting, either just before or just after receiving the above information
regarding the Steelworkers ' petition , DiStefano offered to call off the strike and return
all the employees to work if the Respondent would reinstate all the employees , assist in
getting a prompt election on the Steelworkers ' petition and, in the event that the Steelworkers
lost that election , hold a quick privately conducted election to determine if UMW represented
a majority of the Respondent ' s employees and thereafter recognize United Mine Workers
if it won that election . However , on the previous Sunday, two striking employees had been
arrested for assaulting a nonstriking employee and tried and convicted before the mayor
sPrior to his 12-year employment by the Respondent, Harris had been employed as an
organizer for the Steelworkers.
4Although not doubting at all that this call occurred , subsequent events cast grave doubts
upon the accuracy of the claims made by Goss therein.
SLarke and the other witnesses for the Respondent were a bit confused as to just when
Larke assumed his duties in the personnel field.
$Besides the testimony of Cunningham quoted above, there is evidence in the record,
which the undersigned credits, that Cunningham also informed DiStefano that the Steelworkers
claimed to represent a majority of the Respondent 's employees and that he had legal advice
to the effect that the United Mine Workers strike was illegal.
tof course, under the terms of the Act, it was impossible for UMW to petition the Board
for certification, to appear upon any election ballot, or to be certified by the Board.
OHIO FERRO ALLOYS CORPORATION 553
of Brilliant . 8 Because of this incident Respondent refused to reinstate the two employees
involved . The question of the reinstatement of these two men proved to be the stumbling
block to the proposed settlement at this time so that the strike continued in full force and
effect.
On Wednesday , November , 21, DiStefano and Harris met at lunch to discuss the matter
further but again reached an impasse over the reinstatement of these two employees . During
this meeting Harris advised DiStefano to act quickly because the Respondent was replacing
the strikers rapidly through their advertising methods . DiStefano agreed that he would let
Harris know what the men decided.
Nothing further was done until Saturday, November 24, 1951, when a union meeting was
held in Yorkville , Ohio , at which the employees voted to abandon the strike and to make
themselves available for work at the Respondent ' s plant . The two employees involved in
the assault case agreed that they did not desire to return to the Respondent ' s employ and
advised the men to proceed without them.9
Immediately following the meeting at Yorkville on November 24, the men , together with
United Mine Workers' officials , drove to the Respondent ' s plant where the Respondent
was notified that the Union had voted to abandon the strike and that the employees were
making themselves available for work . It was also arranged that all groups of strikers
should enter the plant for the purpose of securing their paychecks , this being the regular
payday at the plant . About 5 p. m. Harris received a telephone call from DiStefano in which
he was informed that the strikers had voted to abandon the strike and were available for
work. Harris agreed , but was unable , to notify Cunningham and call DiStefano back. io
On Sunday , November 25, Harris was again informed by Organizers Sabatino and Strauss
that the men had voted to abandon the strike and desired to return to work . Harris answered
that, as he was not a production man, he did not know the Respondent ' s personnel needs
as the Respondent had hired a number of men during the strike and requested a postpone-
ment of the meeting until Superintendent Crawford returned to the plant that afternoon with
his work schedule so that the Respondent could figure out how many men it needed . Subse-
quently when Crawford did return to the plant , this meeting was reconvened at which time
Harris informed the union officials that the strikers would have to file new applications
for work and would be treated as applicants for employment just as though they had never
been in the plant previously.
During both these meetings on Sunday , strikers were present dressed for work and carry-
ing their lunch pails.
Subsequently only 11 strikers made out new applications for employment but on both
Saturday and Sunday Larke made a list of those striking employees who made known their
desire to return to work . ii The record is clear that the Respondent reinstated none of the
employees who had ceased work on November 17 until at least the month of December,
although admitting that at least 11 of those men had executed new application forms as
required by Harris . Only 3 strikers have been reinstated subsequently and they were em-
ployed as new applicants for work.
The Respondent ' s employment record also proved that 3 new employees commenced
work on November 17, 2 on November 21, 5 on November 22, 12 on November 23, 8 on
November 24, 2 on November 25, 6 on November 26, and 12 on November 27, with others
8THis donviction was subsequently upheld upon appeal and the resulting fine was paid.
9 To this point the parties are in almost complete agreement on the facts . From this point
on, however , a 24-hour differential develops between the testimony of the witnesses for the
General Counsel and those on behalf of the Respondent. Without deciding this conflict at this
time, the undersigned will, for the sake of convenience , use the dates contended for by the
witnesses for the General Counsel which are 24 hours in advance of those contended for by
the Respondent.
ii Harris ' testimony as to the substance of the DiStefano call was that he was merely
asked for a meeting . The undersigned believes Harris to have been honestly confused about
this because, if that had been the sum total of the call , there would have been no necessity
for Harris to have telephoned Cunningham , and therefore concludes that the DiStefano call
also included the strikers ' offer to return to work which alone would have required Harris
to talk to Cunningham.
liRespondent was unable to locate this Saturday list at the time of the hearing. Larke
testified, however , that the list was a list of those employees who had picked up their pay-
checks . In view of the fact that the Respondent knew what checks had been made out, this
testimony by Larke was unimpressive . There was also a conflict between Larke and a number
of the strikers as to whether Larke refused to supply the strikers with application forms.
The undersigned, however, does not believe that this conflict need be resolved.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being employed throughout the month of November. Subsequent to the 11th, and including
those listed above, the Respondent employed 70 new men who took over from the super-
visors and the employees transferred from the Philo plant.
Subsequently the Board processed the petition for certification filed by the Steelworkers
in its usual course, holding hearings in December and in January, and in April holding an
election at which the striking employees were permitted to file challenged ballots. As the
election was won by the Steelworkers by a vote of 74 to nothing, the 65 challenged ballots
of those employees who had been on strike were never opened or counted as they could
not have affected the result of the election. Consequently, on April 11, 1952, the Steel-
workers was certified as the bargaining representative of the employees of the Respondent
at its Brilliant plant.
B. Conclusions
The salient facts of this case can then be sufficiently summarized as follows: After
organizing the Respondent's employees at its new Brilliant, Ohio, plant, UMW, a noncom-
plying union, on November 15 requested recognition from the Respondent and on November
17 struck the Respondent's plant effectively when this recognition was not promptly forth-
coming. The Respondent's refusal to recognize UMW was based upon a private telephone
call during which a claim to majority status was made by an organizer on behalf of the
Steelworkers, a union which had complied with the Act. This claim was formalized on Novem-
ber 19 by the filing of a petition for certification with the Board by the Steelworkers; on No-
vember 24, UMW abandoned the strike and the strikers made an unconditional offer to return
to work. At the time this unconditional offer to return to work was made, only a minority of
the strikers had been permanently replaced but the Respondent required the returning
strikers to apply for work as new applicants for employment. Thereafter the Respondent
filled the vacant jobs with new employees, failing to reinstate even those strikers who com-
plied with the requirement that they fill out new application forms. In April 1952, the new
and increased crew of employees voted unanimously in favor of the Steelworkers as their
bargaining agent. Although the strikers were permitted to cast challenged ballots at the
election, these ballots were never opened for the reason that, being a minority of the total
of the votes cast, the challenged ballots could not have changed the results of the election.
Steelworkers was thereafter certified as the bargaining agent. The individual strikers filed
charges of discriminatory discharge and refusal to reinstate upon which the complaint herein
issued.
Probably the single most important fact is this whole coterie of facts is that UMW had
failed to execute the so-called non-Communist oath as required by Section 9 (h) of the Act
because that failure disqualified UMW from making use of the processes of the Board such
as seeking Board certification, appearing upon the ballot at the election conducted on the
Steelworkers' petition, or attempting to redress any unfair labor practices which might
have been committed by the Respondent The single fact not only complicated the legal
situation created by the above simple facts but, more importantly, affected the actions of
the various parties here involved This qualifying technicality permeates this case from
its beginning to its end, factually as well as legally.
By reason of the UMW's failure to comply with Section 9 (h) of the Act, the Act prohibited
the Board from investigating or processing any matter concerning representation or any
charge of unfair labor practices made by UMW. Thus, by the terms of the Act itself, UMW
was restricted by law to self-help, i e., the strike, in all matters pertaining to representa-
tion or to unfair labor practices. Thus, there was no peaceful administrative process to
which UMW could turn to secure the representation it requested from the Respondent--and
from the effectiveness of the strike apparently was entitled to, if the desire of the employees
is to be the deciding factor. is
In addition to the above as the Respondent points out in its brief, it has not been contended,
and indeed, it could not be, in view of the fact that [UMW] is not in compliance with the Act,
that the strike against Respondent was an unfair labor practice strike by reason of Re-
spondent's refusal to recognize [ UMW]." This is a correct exposition of the law for the
reason that, as the Board could not by the terms of the Act itself find any action of the
Respondent to be an unfair labor practice in regard to UMW, the strike by UMW members
could not have been caused by unfair labor practices.
With this prelude or introduction we may not turn to a consideration of the legal points
made in the Respondent's brief which state the Respondent's contentions as follows:
12 For strike action as proof of majority status, see N . L. R. B. v Harris-Woodson Co ,
179 F. 2d 720 (C. A. 4), Lebanon Steel Foundry v. N. L. R. B., 130 F 2d 404 (C. A. D. C.),
cert denied 317 U. S. 659, and 7-Up Bottling Co of Miami, Inc., 92 NLRB 1622.
OHIO FERRO ALLOYS CORPORATION 555
In answer to the charges and the complaint it is the Company ' s position that-
A. The Strike Called by District 50, United Mine Workers, was Unlawful and
Employees Participating Therein Forfeited all Rights Under the N.L.R.A.
B. Those Employees Who Did Not Participate in the Strike But Who Failed to
Cross the Picket Line and Report for Work Did Not Engage in Concerted Activity
and Had no Protection Under the N.L.R.A.
C. Those Who Filed Charges were Fronting for District 50, a Non - Complying
Union.
D. The Board was Estopped and Foreclosed to Proceed with the Investigation
of Any of the Charges and Was and Is Estopped and Foreclosed to Issue and Proceed
with the Complaint.
E. The Strike was an Economic Strike and the Company Had the Right to Replace
Strikers ; It Did Replace Substantially All of the Strikers Before the Strike Ended.
F. Those Strikers Not Replaced Had the Duty to Make Written Application for
Reinstatement and the Company ' s Refusal to Reinstate Anyone Who Did not Make
Such Application Did Not Amount to Discrimination Under the N.L.R.A.
It is obvious that the first two contentions are entirely dispositive of the charges
and the complaint . To that extent all the remaining contentions can be considered
secondary . They might be likened unto a spare tire on an automobile equipped with
puncture-proof tires.
The primary or, as described by the Respondent , the "puncture proof tire" argument,
which Respondent contends is dispositive of the complaint , is that the UMW strike was
illegal and that by participating therein the individual strikers forfeited all rights to pro-
tection under the Act. As a corollary to this the Respondent further contends that those
employees who did not actively participate in the picketing although not reporting for work
were not engaged in concerted activities and thus had no protection under the Act. These
issues are without doubt the most important inthis case and will be considered here together.
Respondent ' s argument runs as follows: UMW was striking to force the Respondent to
recognize it as the exclusive bargaining agent of its employees in the face of a conflicting
claim for such recognition made by the Steelworkers; that under the doctrine of the Midwest
Piping and Supply Company case, 63 NLRB 1060 , it would have been an unfair labor practice
for the Respondent to have recognized UMW under such circumstances so that the strike
was, in fact, to force the Respondent to commit an illegal act; and so, the object of the
strike being illegal , the strike itself was illegal and the employees participating therein
were engaging in an illegal act and thus placed themselves beyond the protection of the
Act and subject to discharge at the discretion of the Respondent . In support of this con-
tention the Respondent cites among others , such well-known cases as N. L. R. B. v. Fan-
steel Metalurgical Corporation, 306 U. S. 240; Southern Steamship Company v. N. L. R. B.,
316 U. S. 31; N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332; American News Co., 55 NLRB
1302; N. L. R. B. v. Brashear Freight Lines, Inc., 119 F. 2d 379; and Thompson Products,
Inc., 72 NLRB 886. All of these are cases which hold a strike to be illegal because either
its purpose was to force the employer to commit some act prohibited by statute such as
granting a wage increase in violation of the War Emergency Act or recognizing a union
in violation of a previous certification of another union by the Board ; or else because the
methods used by the strikers were unlawful such as striking in violation of the mutiny
statute, as unlawfully seizing private property , or violating the Union ' s own "no strike"
agreement These cases have held such conduct to be so violative of lawful conduct as to
remove those participating therein from the protection of the Act.
In analyzing this contention we must start from the premise that a strike for recognition
is a legal strike. is This remains the rule even though the strike is conducted by a noncom-
plying union because the compliance sections of the Act only disqualifies such a union from
utilizing the procedures of the Board but does not make action by such a union illegal.
is Howland Dry Goods Company, et al., 85 NLRB 1037, enfd. 191 F. 2d 65 (C. A. 2); Thayer
Co., 99 NLRB 422.
See also Senate Report No . 105 on S. 1126 at p . 22 where it is stated : "It is to be observed
that the primary strike for recognition (without a Board certification ) is not prescribed."
See also the House Conference Report No. 510 on H. R 3020 which contains these state-
ments: "It is to be observed that the primary strike for recognition ( without a Board certifi-
cation) was not prohibited."
Thus even the 1947 amendments did not make a strike for recognition illegal.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, if the strike is to be found unlawful as claimed, that finding is due solely to the con-
flicting claim to majority status made by the Steelworkers at or about the time of the strike
and not because the purpose or method of the strike was illegal.
Respondent appears to argue that the strike on November 17 was illegal from its inception.
Let us analyze this a moment . The facts show that the strike began at 6 a. m. on November
17, 11 hours before UMW received even its first intimation that the Steelworkers, or any
other union , claimed any interest in the plant. This was before the first information UMW
had, or could have had, of the Steelworkers alleged interest in representing the employees
for that claim had only been made previously in a private telephone conversation from the
Steelworkers' organizer to Harris on November 15 but Harris did not convey notice of the
Steelworkers' claim to UMW until he dictated his letter of November 15 in which he refused
recognition to UMW because of conflicting claims. Respondent makes no claim that UMW
knew of the conflicting claim before the commencement of the strike but meets the issue
head on by contending in its brief that its own knowledge--not UMW's or the strikers--was
all that was needed to make the strike illegal. Thus the Respondent's argument leads to the
anomalous result that UMW and the individual strikers were committing an illegal act by
striking because of an unsupported claim conveyed in a private telephone conversation by
Steelworkers' organizer to Harris of which neither UMW nor the strikers individually
could have knowledge until one or the other of the parties to this telephone conversation
chose to reveal it. So an otherwise legal strike would appear to become an illegal strike
at the whim of private parties other than the actor himself- -or more specifically on whether
or not either Harris or the organizer subsequently chose to reveal the telephone call and
the claim there made. This would appear to be a most tenuous demarcation between legality
and illegality. Suffice it to say that this contention goes far beyond the holding of any of the
cited cases in each of which the striking union knew that its purpose was contrary to con-
gressional statute or that its methods violated private property rights at the time the strike
began. In the Thompson Products case the strikers knew of the previous Board certification
and in the Midwest Piping case all parties recognized the competition between unions.
To now extend the Midwest Piping doctrine by elimination of the necessity of knowledge
of the adverse claim would appear not only to be contrary to established precedents but
also to well-recognized general principles of the common law. Thus, the undersigned must
hold that the UMW strike of November 17 was legal at its inception.
A contrary holding would place a union and its members completely at the mercy of an
unscrupulous employer working in cahoots with an equally unscrupulous business agent of
another union who might well fabricate a conflicting claim to representation for the very
purpose of illegalizing an otherwise legal strike so as to subject the individual strikers
to dismissal for their own particular purposes. Surely the sponsors of this Act who em-
phasized that the Act freed the individual employees from the domination of both unions
and employers could have intended no such result.14 Therefore, the strike of November
17 began as a legal strike for recognition and, as such, was a protected concerted activity.
The question then arises as to whether it became illegal thereafter Under the reasoning
set forth above, the first occasion when this transformation might have occurred was about
7:30 a. m. November 17, when President Cunningham informed UMW that the Respondent
could not recognize it because of the claim made by the Steelworkers. At this time he'added
that he had legal advice to the effect that the strike was illegal. Now UMW had come into
possession of the knowledge of the conflicing claim, the information which the Respondent
maintains made this strike illegal Does the acquisition of that knowledge transform the
legal strike into an illegal one? The undersigned believes not. True, UMW now had the
information that the Steelworkers claimed some interest, that it had made a claim orally
over the telephone to Harris that it represented a majority of the Respondent ' s employees.
However , men with as much experience in labor relations affairs as Harris had well know
that union organizers , as a class, are notoriously optimistic in making oral claims to
majority representation especially when there is nothing formal or binding in their method
of making such a claim . Harris might even have recognized that organizers as a class have
been known to bluff on occasions when conceivably a bluff might help out his own union.
Respondent knew that this claim made over the telephone amounted to little or nothing,
at least until such time as a petition for certification had been filed with the Board , if ever.
As it was so perturbed over the "mass picketing" by the strikers around its plant that it
sought injunctive relief therefrom on the very first court day after the picketing began,
the mass picketing should have caused Respondent to quaere the bona fides of the Steel-
workers' claim and indicated to it as a reasonable man that there might not be too much
14 There is in this record not one iota of evidence of unscrupulous action by any of the
parties here involved. The above statement is supposititious only.
OHIO FERRO ALLOYS CORPORATION 557
substance in the Steelworkers ' claim . Due to the informality of the claim and to the myriad
of possibilities as to possible future action , or lack thereof , it would hardly seem logical
that the UMW legal strike should be transformed into an illegal act merely because some
optimistic organizer for some other union had made some questionable informal claim that
his union represented a majority of the employees . If the rule is to the contrary , then any
such optimistic --or unscrupulous--business agent holds the power to delay recognition of
a majority union indefinitely and is thus possessed of the ability to thwart the desire of the
employees . Surely the framers of this legislation who professed publicly to be so anxious
to curtail the powers of unscrupulous labor leaders could have intended no such results
from their legislation. So the undersigned is constrained to hold that even the knowledge
of the Steelworkers ' claim did not transform the strike of November 17 into an illegal act.
The next question , of course , is whether this strike , legal at its inception , became illegal
upon the formal filing of the Steelworkers ' petition with the Board and the UMW's knowledge
thereof on November 19. By the formal filing the Steelworkers indicate more clearly that
they considered that a real question concerning representation existed at the plant. Now at
least Respondent is faced with two apparently bona fide claims to the right to representation,
one evidenced by a full -fledged and effective strike by UMW and the other dignified by the
formal filing of the petition with the Board . However , again experienced labor men like
Harris recognize that , as a practical matter, things beyond number can and, more often
than not, do intervene between the filing of a petition and a final determination of the ques-
tion posed by that petition . This is a universally recognized phenomenon . Among others
Steelworkers might withdraw the petition or the Regional Director might dismiss the peti-
tion based upon the Steelworkers ' inability to show the requisite 30-percent membership
in the plant , the administratively determined prerequisite for the processing of any such
petition. As a matter of fact, by November 19 the strike had been going on long enough so
that the Respondent knew that 58 out of its 79 employees had ceased work in concert in
order to force the Respondent to recognize UMW. It knew that on this showing Steelworkers
could not make the requisite showing of interest to prevent having its petition dismissed un-
less some of the replacements or some of the strikers executed cards for the Steelworkers.
Men experienced in labor relations would know that there was more than a probability that
the Steelworkers ' petition would be dismissed on the ground that no real question concerning
representation existed at the Respondent' s plant because the facts indicated the unlikelihood
that Steelworkers could show the requisite membership in the plant so as to be able to
create a bona fide question concerning representation . In view of the difficulty the Steel-
workers would have in even making a showing of interest , how could Steelworkers be ex-
pected to secure a majority vote in any election? Is the mere filing of such a petition for
certification then to be the catalytic agent by which a legal strike for recognition is trans-
formed into an illegal act? The undersigned is forced to hold that , at least in a case such
as this where it is so highly questionable whether the petition in fact raised a bona fide
question concerning representation , this filing creates no transformation from a legal to
an illegal strike . Otherwise a majority union or the individual members thereof are again
at the mercy of the unscrupulous . Again the interest of the employees themselves appears
paramount.
The Board in the William Penn Broadcasting Company case , is recently modified the
principles of the Midwest Piping doctrine as follows:
In conformity with these views , we conclude that the pendency of a petition for certi-
fication imposes no duty upon an employer to refrain from continuing exclusively to
recognize and deal with an incumbent bargaining representative , such as we have
here , unless the petition has a character and timeliness which create a real question
concerning representation.
Although we are not here dealing with an incumbent union situation , the principle is
equally applicable in a case like this where it is almost mathematically demonstrable
that the filing of the petition fails to raise any bona fide question concerning representation.
In order to sustain the Respondent 's contention here , the undersigned would have to extend
the Midwest Piping doctrine far beyond any of the cases cited in the Respondent ' s brief.
Since the decision of the Ninth Circuit Court of Appeals in the Flotill is case and the Board's
decision in the William Penn case , it appears that the Midwest Piping doctrine may be modi-
fied--but not extended.
is 93 NLRB 1104.
16 180 F. 2d 441.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the mathematics facing the Respondent in this situation , it is extremely doubtful
that any question would have been raised if the Respondent had recognized UMW as requested
and even more so that the Respondent could have been held to have committed any unfair
labor practice by such recognition . A reasonable man could hardly have come to the con-
clusion that the Steelworkers ' claim raised any question concerning representation at the
Respondent ' s plant.
Nor does the fact that the Board ultimately certified the Steelworkers as the bargaining
agent for the employees at the plant militate against the above because of the fact that this
certification resulted from the vote of an entirely new and different crew of employees than
those who had been employees in November 1951. Those employees who ceased work con-
certedly for the purpose of securing the recognition of UMW as their bargaining agent
remained employees throughout the dispute for the reason that they had ceased work "as
a consequence of, or in connection with , a current labor dispute" and thus retained their
status as employees of the Respondent under the definition of "employees " contained in
Section 2 (3) of the Act. Moreover, these striking employees were permitted to vote chal-
lenged ballots only at the election . These challenged ballots were never opened or counted
for the reason that the new crew then working for the Respondent was numerically larger
than the group of strikers and voted unanimously for the Steelworkers . Thus, the challenged
ballots of the strikers were not opened being numerically insufficient to change the results
of the election even though unanimously cast for UMW.
During his oral argument the General Counsel argued that the purpose of the November 17
strike was changed on November 19 when UMW learned that the Steelworkers ' petition had
been filed . For at that time UMW offered to return all the strikers to work if the Respondent
would assist in securing a quick Board election and, if the Steelworkers lost that election,
a privately conducted election whereby UMW could prove its majority and secure recognition.
But this suggestion was rejected by the Respondent on the ground that it would not reinstate
two employees who had been convicted of an assault upon a nonstriking employee. The
General Counsel maintained that UMW thereby abandoned its demand for recognition and
that the strike continued thereafter in order to prevent the discharge of these two employees.
This argument is ingenious but unconvincing to the undersigned who, upon these facts, can
only hold that perhaps the reinstatement of the two employees involved was added to the
preexisting demand for recognition at this time but cannot hold that the demand for recog-
nition was abandoned at that time . Both demands , however, were abandoned with the end of
the strike and the offer of the men to return to work without the two aforementioned indi-
viduals on November 24.
Therefore , in keeping with the publicly professed purposes of this Act to protect the
rights of the individual employees , the undersigned must find that to and including the
date the strike ended , the strike of UMW for recognition was an4 remained a legal strike
and a protected concerted activity upon the part of the individual employees who concertedly
ceased work in order to secure recognition of UMW as their bargaining agent . Thus, the
Respondent ' s primary contention is faulty and therefore does not determine this case.
We then arrive at the question as to what kind of a strike this was . The undersigned
agrees with the Respondent , as noted above, that the strike of November 17 was, due to
UMW's failure to comply with the Act , an economic strike. In such a strike an employer
is entitled to replace the strikers permanently during the course of the strike but, upon
an unconditional offer to return to work by the strikers , the strikers are entitled as a
matter of right to those jobs remaining unfilled at the time of such offer. 17
The Respondent 's brief states that "it did replace substantially all of the strikers before
the strike ended." This contention , however, does not jibe with the Respondent's own ad-
mitted employment records.
These employment records of the Respondent prove that the Respondent filled 40 jobs
on and after November 25, 1951 . 18 These records show further that 8 men went to work
on November 24 but whether before or after the strike offered to return is not clear. How-
ever , as the General Counsel had the burden of proof on this point, the undersigned is
bound to conclude that these 8 positions were filled before the offer was made . Thus, when
the strikers made their offer to return to work , there were 40 unfilled jobs available for
them and to which, under the law , they were entitled to be reinstated as a matter of right.
ilUnion Bus Terminal of Dallas, Inc ., 98 NLRB 458; Tyrrell County Lumber Company,
101 NLRB 155.
i8As only 2 positions were filled by the Respondent on November 25, it is apparent that the
24-hour differential between the Respondent and the Union as to when certain events occurred
would thus affect only 2 positions.
OHIO FERRO ALLOYS CORPORATION 559
The undersigned perceives no reason to break these 40 positions down according to job
classifications in view of the Respondent ' s uncontradicted testimony that it was employing
unskilled labor only and that the plant was so new that it was still in the "shakedown"
stage so that these unskilled employees were being shifted practically daily from one job
to another as circumstances required . Hence it is clear that any production man could
do any of the jobs involved here and that job classifications under these conditions are
meaningless and unnecessary.
The Respondent maintained that prior to the end of the strike it had interviewed a number
of men and upon the strength of those interviews had hired them for a definite future date,
a date which proved to be after the strike . The Respondent contends that these positions
must be considered as having been "permanently filled" as of the end of the strike. From
the employment records the number of such positions herein involved is four . 19 Due to the
vicissitudes of fate these days and to the uncertainty as to whether those men who had been
interviewed would ultimately actually assume the position for which they were hired, the
undersigned believes that the only strikers who can be considered to have been " perma-
nently replaced" are those whose jobs were actually filled by a permanent employee at
the end of the strike . Nothing else would amount to permanent replacement.
Thus, at the time of the strikers ' offer to return to work, 40 jobs remained unfilled in
the Respondent ' s plant to which the 58 strikers were entitled to be reinstated.
In regard to the 58 returning strikers , the Respondent says in its brief: " Those strikers
not replaced had the duty to make written application for reinstatement and the Company's
refusal to reinstate anyone who did not make such application did not amount to discrimi-
nation ." At the time of the offer to return to work, the Respondent informed the returning
strikers that it would require new application forms from each of them which would be
given the same consideration as those of all other applicants for employment and, when
objection was made that this would make the strikers into applicants for employment instead
of employees , the Respondent answered that the returning strikers would be treated just as
though they had never been in the plant before.
if the strike of November 17 had been, in fact, an illegal strike as in the Fansteel case or
the Fafnir Bearing Company case, m then the Respondent ' s positiotr might welihave been
a correct exposition of the law applicable to the situation . But, as found above , this strike
was not illegal . This was a legal strike for recognition and employees who ceased work in
concert did so as a consequence of, or in connection with, a current labor dispute and thus,
by the terms of the Act (Section 2 (3)) remained employees of the Respondent entitled to
reinstatement as a matter of right to the 40 positions remaining unfilled at the time of
their unconditional offer to return to work. Thus, while the Respondent had an absolute
right at its discretion to replace these economic strikers permanently during the period
of the strike ,21 it enjoyed no right to exercise Its discretion under the circumstances here
existing to reduce the returning strikers from their status of "employees" to the status of
"applicants for employment" or to force them to compete against the labor market for
these 40 open positions . Of course , the strikers would have had to compete against themselves
for the 40 positions and the Respondent could pick and choose among them so long as it
exercised its discretion in a nondiscriminatory fashion. If an employer at its discretion
could reinstate those among the strikers whom it wanted to keep in competition with the
labor market , then Section 2 (3) of the Act is meaningless . By thus demoting the returning
strikers (or returning employees ) to status of "applicants for employment" whose appli-
cations would be considered along with those of all other applicants for employment at the
discretion of the Respondent , the Respondent , in effect, deprived the returning strikers
from their status of employees and in violation of the Act discharged them. As the Tenth
Circuit Court of Appeals in N. L. R. B. v. Shenandoah Dives Mining Company so succinctly
said : " This constituted an unfair labor practice." :s
Thus as employees , the strikers were under no duty to file new applications for employ-
ment as claimed by the Respondent . Subsequent events proved that the returning strikers
had little, if any, chance to regain their employee status upon Respondent 's exercise of its
discretion among all applicants for employment because the Respondent hired none of the
returning strikers --not even any of the 11 who submitted to the Respondent ' s illegal reduc-
i9 Again the records prove that the Respondent had only interviewed four men prior to the
end of the strike who actually commenced working after the end of the strike.
2073 NLRB 1008.
n N. L. R . B. v. Mackay Radio and Telegraph Co., 304 U. S. 333.
22 See also Kansas Milling Co . v. N. L. R . B., 185 F . 2d 413 (C. A. 10), and Clausen d/b/a
Luzern Hide and Tallow Company, 89 NLRB 989, enforced 188 F . 2d 439.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion of their status by filing new application forms--until long after the 40 positions here
in question had been filled by completely new applicants for employment.
Although these 58 strikers had been satisfactory employees until the time of the strike,
the Respondent employed a 100 percent new crew . Even at the time of the hearing the Re-
spondent had only reemployed 3 of the strikers . Such an exercise of discretion would hardly
seem to have been nondiscriminatory.
Respondent also maintained that those employees who ceased work but did not participate
in the picketing were not "acting in concert, ' and thus fell outside the protection of the Act.
The short answer to this is that these individuals were acting in concert when they ceased
work--which is sufficient under the Act.
Respondent further objected to five named individuals for specified reasons . The ob-
jections made to Edward Dolezal and Richard Bechtel have been decided adversely to Re-
spondent in the preceding paragraph.
Respondent objected to Andy Klika on the ground that he was a supervisor and thus beyond
the purview of the Act. Respondent ' s position here is justified by Klika's own description of
his duties . The complaint accordingly will be dismissed as to him . As to Edward Smith.
Respondent contended that he entered a hospital a week prior to the strike and never reported
back for work during or after the strike . This being true according to Smith' s testimony, he
will also be dismissed from the complaint . As to Mike Moran, Respondent claimed and proved
that he had been discharged for absenteeism prior to the strike . So Moran will also be
dismissed from the complaint.
In addition to the above-described " puncture proof tire" arguments , the Respondent has a
few minor arguments which require a few words . The Respondent contended that the in-
dividuals here should not have been permitted to file their individual charges of discrimi-
nation based upon the Respondent ' s "refusal to reinstate each of them because they were
merely "fronting" for a union which had not complied with the Act . It should be noted that
the charges filed by these individuals referred exclusively to their own individual right to
reinstatement to their jobs . There is nothing in any of the charges referring to rights of
UMW, if any. Thus it is difficult to discern just how these individuals attempting to claim
rights which were exclusively their own personal rights can be said to have been "fronting"
for anyone except themselves individually . The evidence does show that one of the claimants
here had been elected president of UMW Local at the plant and assumed a rather leading role
in instigating the investigation which resulted in the issuance of this complaint. it also shows
that the field examiner for the Board took statements from some, if not all , of the com-
plainants at UMW hall. And further UMW records were used to secure the names of other
individual employees who might individually care to file a charge. In the debates on the
Act much was said to the effect that noncomplying unions only were penalized by the com-
pliance sections of the Act but that all individual rights had been zealously not only protected
but enlarged . According to its sponsors the rights of the individual had been made of para-
mount importance by the amendments . Thus it would seem that a very strong case of -front-
ing" would have to be made out before Section 9 (f), (g), and (h) of the Act should be read in
such a fashion as to hold individuals , as well as labor organizations , disqualified from the
use of Board procedures under the above -quoted sections which by their phraseology relate
exclusively to labor organizations . Any such interpretation of the above sections appears to
the undersigned to be far beyond his power or duty. Another, and a different , problem
would have arisen if these individuals had been attempting by indirection to secure some right
for UMW which it could not have secured by itself by reason of its noncompliance . However,
under the facts presented here , the undersigned cannot, for a variety of reasons , hold that the
claimants here, or any of them, were "fronting" for UMW.
The Respondent ' s next argument is that the Board was "estoppel and foreclosed to proceed
with the investigation of any of the charges was and is estopped to issue and proceed with the
complaint" by reason of the fact that it proceeded to process the Steelworkers ' petition
for certification and subsequently , in fact , certified the Steelworkers . This claim of estoppel
and foreclosure of the Board in its protection of public rights has been decided adversely to
the Respondent's contention here too often to require further comment.
In conclusion the Respondent also argues that the object of the Act is to stabilize and har-
monize labor relations and that a Board order reinstating the claimants here would disrupt
its already established good relationship with the Steelworkers . Unfortunately this is true
although the argument itself is not convincing for the reason that the more coerced and
docile the employees are in a plant the more applicable the Respondent's argument. The
result is unfortunate here for the undersigned is convinced from the Respondent ' s labor
relations history that it is not antilabor . Nor does the undersigned believe that the Respondent
was intentionally antiunion in the instant proceeding. The undersigned does believe that the
Respondent , faced with the maze ofthe technicalities in the Act in the hurry and the excitement
OHIO FERRO ALLOYS CORPORATION 561
of the strike situation , honestly but mistakenly selected a false turn thus coming to the con-
clusion that the strike was illegal and the strikers no longer employees. This honest error
has had , and will continue to have , unfortunate results for all three of the parties herein
involved : The UMW employees , the Steelworkers who replaced them, and the Respondent.
The undersigned does not like the confusion which is bound to result anymore than the
Respondent will but, if the Act is to be enforced as written , then the UMW strikers are
entitled to and must be reinstated.
The undersigned , therefore , holds that the Respondent's requirement that the returning
strikers file new applications and at the Respondent's discretion be considered in common
with all other applicants for employment from the whole labor market just as though they
have never been in the plant before was a violation of the rights of such returning employees
under Section 2 (3) of the Act and that the Respondent thereby failed and refused to reinstate
these employees to the 40 vacant positions in order to discourage membership in the UMW
in violation of Section 8 (a) (3) and 8 (a) (1) of the Act.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above, occurring in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade , traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices , it will be
recommended that the Respondent cease and desist therefrom and take certain affirmative
action which the undersigned finds necessary to effectuate the policies of the Act.
It has been found that the Respondent on November 24, 1951, discriminated in regard to the
hire and tenure of employment of those employees listed in Appendix A attached hereto by
failing and refusing to reinstate them to the 40 positions at the Respondent ' s plant then
unfilled with the result of discouraging membership in UMW. The undersigned will, there-
fore , recommend that the Respondent offer to those employees listed in said Appendix A
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges , until the said 40 positions
are filled . The undersigned will also recommend that the Respondent make these individuals
whole for any loss of pay they may have suffered by reason of such discrimination by payment
to them as a group of a sum of money equal to that which 40 of them would have earned as
wages from November 24, 1951, the date of the Respondent ' s discrimination as to them, to
the date of the offer of reinstatement to 40 of them less the net earnings of 40 of the em-
ployees there listed during such period in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 . This fund then will be divided among all the strikers in
accordance with their individual rights thereto.
Upon a consideration of the record as a whole , the undersigned is convinced that the
Respondent ' s discrimination in refusing to reinstate the strikers, though due to an honest
mistake, indicated an attitude of opposition to the purposes of the Act generally . In order,
therefore , to make effective the interdependent guarantees of Section 7 of the Act, thereby
minimizing industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, it will be recommended that the Respondent cease and desist from in
any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned
makes the following:
CONCLUSIONS OF LAW
1. By discriminating in the hire and tenure of employment of those employees listed in
Appendix A by refusing and failing to reinstate 40 of them on November 24, 1951, thereby
discouraging membership in a union of their own choosing and thereby interfering with,
restraining , and coercing 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 (a) (3) and 8 (a) (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.)