Pacific States Cast Iron Pipe Co.

National Labor Relations Board - Board Decisions

Dec 10, 1941

37 N.L.R.B. 405 (N.L.R.B. 1941)

In the Matter of PACIFIC 'STATES CAST IRON PIPE COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE, LOCAL UNION 1654
Case No. C-1924.-Decided December 10; 1941
Jurisdiction : cast iron products manufacturing industry
Unfair Labor Practices
Interference, Restraint, avid Coewcrioa. questioning employees regarding union
membership and advising them against withdrawing from "in"side" union.
Disc?vmvnatios: charges of, dismissed, where record does not establish that
employer applied regular seniority rules discriminatorily in laying off
employee who had been active in union
Collective Bargainvng : majority established by consent election-refusal to enter
into a signed agreement with union because it was an "outside" organization ;
refusal to recognize and treat with union as exclusive representative of the
employee in the appropriate unit; evincing of bad faith in, its dealings with
the union throughout negotiations, especially by unilaterally granting a wage
increase after union had requested bargaining conferences on the subject.
Remedial Orders : order to bargain collectively and enter into signed contract if
agreement reached on any conditions of employment acid if union so requests.
Practice and Procedure : where union seeking to intervene raised no material
issue in its petition, petition denied.
Where union sought to intervene and reopen record after hearing, to
take further evidence to determine by Nshat authority the charging union
"claims the right to act as bargaining agency," on the ground that inter-
vening union is party to a contract with employer designating it as sole
bargaining agency, and it appeared that after the contract was signed the
intervening union and the charging union both appeared on the ballot in
a consent election won by the charging union, and where the intervening
union did not question the validity of the results of the election, petition
to intervene and reopen the record was denied on the ground that no
material issue had been raised to justify reopening the record.
Mr. Paul S. Kuelthau, for the Board.
Mr. Louis H. Callister, and Stephens, Brayton cC Lowe, by Mr. Dean
F. Brayton, of Salt Lake City, Utah, for the respondent.
Mr. George W. Worthen, of Provo, Utah, for the Iron Workers.
Miss Mary E. Perkins, of counsel to the Board.
37 N. L. R B., No 68.
405
433257-42-vor. 37-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT.OF THE CASE
Upon charges and amended charges 1 duly filed by Steel Workers
Organizing Committee, Local Union 1654, affiliated Frith the Congress
of Industrial Organizations, herein called the Union,' the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Twenty-second Region (Denver, Colorado), issued
its complaint dated March 26, 1941, against Pacific States Cast Iron
Pipe Company, Provo, Utah, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint, accompanied by notice of hearing, were duly served upon the
respondent and the Union.
As to the unfair labor practices, the complaint alleged in substance
that the respondent (1) laid off Ralph H. Peters from March 8, 1940,
until April 23, 1940, because of his activities on behalf of the Union ;
(2) since April 13, 1940, has refused, although requested, to bargain
with the Union which, since February 29, 1940, has been the exclusive
representative of the respondent's employees in an appropriate unit:
(3) since June 1939 has urged, persuaded, and warned its employees
to refrain from joining or retaining membership in the Union; and
(4) by these and other acts, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. On April 5, 1941, the respondent filed its
answer admitting certain allegations of the complaint pertaining to
its business, but denying that it had engaged in the alleged unfair
labor, practices.
Pursuant to notice, a hearing was held in Provo, Utah, from April
7 to April 11, 1941, before Edward G. Smith, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
each party. At the conclusion of the Board's case,, and again at
the close of the hearing, counsel for the respondent moved to strike
Charges were first filed on April 8, 1940. and amended charges were filed on June 24,
1940, February 8, 1941, and march 25, 1941
' The Steel `Workers Organizing Committee is referred to herein as the S W 0 C
PACIFIC STATES CAST IRON PIPE ,COMPANY 407
as, irrelevant, testimony. given by Joseph, Hansen , concerning - the
union membership of certain employees, to strike as irrelevant any
evidence relating to Amalgamated Association of Iron, Steel and
Tin workers of North America, and to dismiss the complaint for
want of evidence to support its 'allegations. The Trial Examiner
reserved ruling on these motions at, the hearing and denied them in
his Intermediate Report. At the close of the hearing, counsel for
the Board moved to amend' the pleadings to conform to the proof
as to formal matters; this ration was granted. During the hearing,
the Trial,Examiner made rulings on other 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.
On June 24, 1941, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the respondent and the
Union, in which he found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6)'and (7)
of the Act. He recommended that the respondent cease and desist
from such practices; that it make whole Ralph H. Peters for any
loss in earnings which he may have suffered by reason of the re-
spondent's discrimination against him; that upon request it bargain
with the Union as the exclusive representative of the respondent's
employees in the unit found to be appropriate and reduce to writing
any agreement reached by it with the Union, if requested to do so;
and that it take certain other remedial action.
At the request of the respondent, a hearing for the purpose of oral
argument before the Board was set for August 21, 1941, at Wash-
ington, D. C. Subsequently both the respondent and the Union
waived oral argument before the Board. On August 16, 1941, the
respondent filed exceptions to the Intermediate Report, and on
August 25, 1941, a brief in support thereof. The Board has consid-
ered the respondent's exceptions' to the Intermediate Report and
its brief in support of its exceptions and, in so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
On August 22, 1941, permission having been previously granted
by the Board, the Iron Workers' Union of Provo, a labor organiza-
tion claiming to be affected by the. proceeding, filed a written petition
to intervene and, on August 25, 1941, a motion to take further evi-
dence, together with a brief in support of its petition and motion.
For reasons stated below, the petition to intervene and the motion-
to take further evidence are hereby denied.3
0 See Section III, C, 2, infra.
408 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record iii tlie'case, the Board males the following:
FINDI-NGS'OF FACT
1. THE BUSINESS OF THE RESPONDENT
Pacific States C'a'st Iron Pipe Company is a corporation organized
and existing under the 1'w's'of the S'tAe of Nevada, and'q'ualified to'do
business in the State of Utah. 'Therespo'rideilt's principal 'office and
place of business i's near Provo, Utah,.whe're it 'oiler"ates a =plant for
the manufacture of cast=iron pipe, valfes, fitting"s; and 'other cast-
iron pr6ducts.4 During the year 1939, p'rod'ucts valued at approxi-
mately $1,800,000 we're manufactured by the 'respondent At its Provo
plant, 68 per cent of which were sold and shipped by the respondent
to purchasers outside the State of Utah. Eighteen per cent of the
raw materials used iii the manufac't'ure of its 'products 'are shipped to
the respondent at its Provo plant from points outside the State
of Utah.
The respondent is a wholly owned subsidiary of McWane 'Cast
Tron Pipe Company, Biiihingha'In, Alabaiila. William McWaile is
president, of both companies. At the time of the hearing; the
respondent employed about 410 person's at its P'ro`vo plant.
II. THE ORGANIZATIO\ INVOLVED
Steel Workers Organizing Committee, Local Union 1654, which
was known prior to July 1940 as' Amalgamated Association of lion,
Steel and Tin Workers of North America, Local Lodge 1654,5 is a
labor organization affiliated with the Congress of Industrial Organi-
zations, herein called the C. I. 0., and admits to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Backgrownd
In June 1937 , the C. I. O. began to organize the respond 'ent's em-
ployees and called a meeting to be held at the Labor Temple in Provo.
Handbills announcing the meeting Were distributed in 'the plant on
the morning of the meeting. At this time there was in effect at the
plant an Employees Representation Plan which held regular monthly
meetings participated in by representatives both 'of ''the employees
'arid of `the management . John K . Hawk, an ' employee , was 'then
4 This plant is referred to herein as the Provo plant.
5 See Section III , C, 2, infra, where we discuss the Union ' s connection with the
Amalgamated Association of Iron , Steel and Tin Workers of North America
PACIFIC STATES CAST IRON PIPE COMP,ANY,_ 409
chairman of-the Plan and Ralph. H. Peters, also an employee, its
secretary. Qn the morning of the C. I. O. meeting, 1=Ia^vk and
Peters decided- to call a meeting of the employees during the day
to consider whether the Plan should_ be continued or wl ether the
employees should join the C.-T. O. Before proceeding with this
meeting, however, they conferred with George Sibbett, then general
manager, of the plant and one of the respondent's representatives in
the Plan. According to Peters, Sibbett told Peters and Hawk that
if they wanted to hold a meeting, the whistle would blow at noon
and they could call the men together at that time; but as they left,
Peters testified, they were met by O. H. King, then the respondent's
treasurer, who told them that they could not do "such a thing as that"
because '•if we -call a meeting like that the men would all get together
and somebody would get up and say, `Let's join the C. I. 0.', and
you would all be in." Although Hawk denied hearing King make
the statement attributed to him, by Peters, King failed to testify
about this conference. Hawk did testify, however, that it was agreed
in the conference that "the twelve o'clock whistle '. . . would be the
signal to meet" but that King, whose office adjoined Sibbett's, inter-
vened, saying that for him to grant permission to hold such a meeting
might be construed as coercion on the part of the respondent. Hawk
then decided that he "didn't want to take that responsibility of
causing . . . wrath brought on the company" and withdrew his re-
quest for a meeting. The Trial Examiner, who had an opportunity
to observe the witnesses, credited Peters' testimony. Upon the basis
of the entire record, we find that Peters' testimony is substantially
correct.
Peters also testified, and we find, that he was instructed by Harry
Conger, an employee in the "office department" of the respondent, to
distribute to the employees who attended the C. I. 0. meeting a
mimeographed statement signed by Sibbett, which urged the men
to attend the C. I. 0. meeting and make up their own minds, but
which stated in addition "that we had been as one large family here
for a long time, we had made advancements in different departments,
we had spread out and formed new departments, and they hoped we
wouldn't have something come up that would interfere or stop us
from expanding." Hawk testified that handbills signed by Sibbett,
which urged the men to attend the meeting, although suggesting
that foremen stay away, were posted on the bulletin boards at the
plant. He testified that he did not remember any statement in the
handbills to the effect that the plant would close if there were any
"requirements" the respondent could not fulfill; he was not asked
whether-the, statement referred to by,Peters was included. We find11
that handbills signed by Sibbett were printed and posted in the
410 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
plant by the respondent, and that-these handbills included the state-
ment quoted by Peters and made it apparent to the, employees that the
respondent did not want them' to join'the C. I. O.
Shortly thereafter an unaffiliated union, the Iron Workers'- Union
of Provo, herein called the Iron' Workers, was formed among the
employees. A consent election was conducted by the Board in
June 1937, to determine whether the employees desired to be repre-
sented by the C. I. O. or by the Iron Workers. A majority of the
employees who voted in this election designated the Iron Workers as
their bargaining representative. Robert V. Greaves, one of the
organizers of the new, union and a member of its first negotiating
committee, testified that the Iron Workers at once presented a pro-
posed contract to the respondent, demanding - a minimum rate of
55 cents, and a week's vacation with pay for employees with 3 years'
service. In "a matter of days" the Iron Workers received from the
respondent a contract granting a 57-cent -minimum rate, and a week's
vacation with pay for employees with only 2 years' service.
B. Events in 1939 and 1940; inter f erenzce, restraint, and coercion
During the remainder of 1937 and until the fall of 1939, the Iron
Workers, so far as the record discloses, was the only labor organiza-
tion among the respondent's employees. During the summer of
1939, however, dissatisfaction arose among certain of the employees
in the special foundry who believed that the Iron Workers was not
effectively protecting the older men in, that department against the
employment of new men in better jobs. On the morning of July 8,
1939, a group of about 12 of the special foundry employees' went to
the time office in a body and withdrew assignments they had previ-
ously filed authorizing the respondent to deduct from their wages
and pay to the Iron Workers their dues in that organization.?
Claude C. Cardall, personnel director of the respondent, was stand-
ing on the porch of the office as the men entered and signed the neces-
sary forms. After they left the office, the men went to their jobs at
the special foundry and worked as usual until about 1 o'clock in the
afternoon, when Cardall notified all the special foundry employees
that King, who was now general manager of the plant, wanted to
speak to them. Pursuant to Cardall's instructions, the men gathered
in the sand-blast building, where King addressed them. Ralph E.
Farrer and Freeman Stewart, two of the employees who had that day
withdrawn their assignments of dues to the, Iron Workers, and
e About 30 men were employed in the special foundry at this time
The dues of the members of the Iron workers were checked off by the respondent
under a law, of the State of Utah requiring employers to recognize assignments of wages
to labor organizations
PACIFIC STATES 'CAST IRON PIPE ,'COMPANY 411
Thomas J. Griffithi-who'waa the'special foundry' representative ,on
the Iron Workers grievance committee at that; time, gave substantially
the, same account of this meeting. According to their testimony,
King' opened the meeting by stating that "there had been a lot of
talk going around the plant" and that-he understood that "some
of the older men were making trouble among the ,younger ones" and
getting them "all stirred up"; and that the talk must stop "or else."
King then asked Griffith What the trouble was and why the men had
withdrawn from the Iron Workers.' Griffith explained that the men
believed that their seniority rights 'had been violated, and reviewed
certain other 'grievances which the men considered had not been
satisfactorily adjusted. After some discussion of the grievances in
question, King stated that "you can't dig up dead horses" and that
"it was real unsportsmanlike to withdraw from [the Iron Workers]
just because they hadn't helped our individual cause as we seen it."
As to this meeting, King testified that he had visited the plant
and discovered a pile of "several' thousand" defective fittings which
had been produced by the special foundry and which the cleaning
and inspection department had found it necessary to reject; and
that thereupon he called together the special foundry employees and
told them that the poor workmanship thus evidenced must stop
or else the respondent would have to "take some action about it."
This was, however, the only meeting to discuss the workmanship
of the men that he recalled having held during 1939. He denied
having made any reference to the withdrawal of the men from the
Iron Workers, or having made any statement to the effect that
the "talk" in the foundry must stop "or else." E. E. Hood, fore-
man of the special foundry, also denied that King made any of the
statements attributed to him, but later admitted that he did not
recall the events of the meeting definitely,8 and that he had not been
present at the beginning of the meeting. Griffith and Stewart both
testified that in the course of the meeting the question of defects
in the castings made by the special foundry was discussed; they
stated, however, that the natter did not arise until after the meeting
had been under way some time, and then only as one of several
questions relating to the operations of the special foundry. -
This meeting, as we have noted, was held shortly after a group
of employees had, in effect, withdrawn from the Iron Workers. It
was the only meeting that King recalled having held during 1939
to discuss the workmanship of the employees. In view of King's
preference for "inside" over "outside" unions and his extreme con-
8To the question, " . Can you tell us what Mr. King said at the meeting?' Hood
replied, "Well, now, that would be hard, because the only thing that I could say positive
is what has been repeated since that meeting, asked me about it."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tern for the welfare of "inside"-uni'ons;^as discussed elsewhere herein,
we are convinced and find,- as did- the Trial E I'miner, that Kii1g
called the meeting of July 8, 1939, because he had learned that over
one-third of the employees in the special foundry department had
that morning withdrawn from the Iron Workers, and that he ques-
tioned employees present at the meeting about their union mem-
bership and advised them against abandoning their membership in
the Iron Workers. The respondent has thereby, we find, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
There is no evidence that any further defections from the ranks
of the -Iron Workers took place in the summer of 1939. On August
9, 1939, the respondent signed another contract with the Iron Workers,
by the terms of which the respondent recognized that organization
as the exclusive representative of its employees.0
About November 1939 the first steps toward organization of the
Union were taken by Ralph Peters, Ralph Farrer, and Freeman
Stewart. These three approached David Reese, secretary of a local
of the S. W. O. C. at the nearby Columbia Steel plant, in order
to obtain the assistance of an S. W. O. C. organizer. The next
evening Reese brought Varro C. Jones, Utah Director of the
S. W. O. C., to Peters' home, and arrangements were made that
night to launch an S. W. O. C. organizational drive. Meetings were
subsequently held and members enrolled. Peters, Farrer, and Stew-
art continued to participate actively in the drive and in the evenings,
after work, drove around in their own cars to the homes of em-
ployees to secure members for the Union. By February 1940, they
had enrolled as members a substantial number of the respondent's
employees and the Union requested the Board to conduct an election.
As set forth below, a consent election was held on February 29,
-1940, in order. to determine whether the respondent's employees
desired to be represented by the Union, by the Iron Workers, or
by neither. The Union won the election.te
C. The refusal to bargain collectively; further interference,
restraint and coercion
(1) The appropriate unit
The complaint alleged and the respondent admits that the produc-
tion and maintenance employees of the respondent at its plant near
9It is not clear whether of not this contract was a renewal of the June 1937 contract
signed by the respondent with the Iron Workers King testified that "contracts" had been
in effect between the respondent and the Iron workers since the spring of 1937.
11 See Section III , C, 2, infra
- PACIFIC STATES CAST IRON PIPE - COMPANY 413
Provo, Utah, including truck drivers, but 'excluding guards, watch-
men, supervisors, technicians, clerks, and office employees, constitute
a unit appropriate for the purposes of collective bargaining. In the
consent election on February 29, 1940, this unit was adopted as
appropriate by the respondent, the Union; and the Iron Workers.
We find that the production and maintenance employees of the
respondent at its plant near Provo, Utah, including truck drivers,
but excluding guards, watchmen, supervisors, technicians, clerks, and
office employees, at all times Material herein constituted, and that
they now constitute, a unit appropriate for the purposes of collective
bargaining, and that the said unit insures to employees of the respond-
ent the full benefit of their right to self-organization and to collective
bargaining, and otherwise effectuates the policies of the Act.
(2) Representation by the Union of a majority in the appropriate
unit
The complaint alleged that at all times since February 29, 1940,
Steel Workers Organizing Committee, Local Union 1654, has been
the exclusive representative of the employees in the appropriate unit
for the purposes of collective bargaining.. The respondent in its
answer denied this allegation, asserting that the respondent "under-
stands the true name of Local Union #1654 to be `Amalgamated
Association of Iron, Steel and Tin'Workers of North America, Local
Lodge #1654,"' and that the latter organization was designated
by a majority of the employees in the appropriate unit on February
29, 1940, and has been the exclusive representative of such employees
at all times since that date. The evidence indicates, and we find,
that the respondent's employees were organized about November 1939
by the S. W. O. C. and that a charter was issued in March or April
1940, to the local thus formed, by the Amalgamated Association of
Iron, Steel and Tin Workers of North America, herein called the
Amalgamated. This was done pursuant to an agreement entered into
in June 1936,11 between, the Committee for Industrial Organization
and the Amalgamated, providing for the establishment of the
S. W. O. C. with "power to handle all matters relative to the or-
ganizing campaign other than the issuance of charters," and further
providing that the Amalgamated should issue charters to locals or-
ganized by, the S. W. O. C. The name of the Union under the
Amalgamated charter was "Amalagamated Association of Iron, Steel
and Tin Workers of North America, Local Lodge- # 1654." On
July 24, 1940, a further agreement Was entered into by the Amal-
gamated, the C. I. 0., and the S. W. O. C. which provided that the
"This agreement and that of Ju13 24, 1940, mentioned below, neie intioduced into
evidence
414 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
S: W.- O.' C. was to, issue charters in its own name to its lodges. in
place of the. charters previously issued by the Amalgamated. In
accordance with this, agreement, the charter which' had been issued
to the Union by the Amalgamated was surrendered and a new charter
issued in its place by the S. W. O. C. The name of the Union was
thereby changed to "Steel Workers Organizing Committee, Local
Union 1654." A. M. Peterson, president of the Utah State Industrial
Council, Varro Jones, Utah Director of the S. W. O. C., and James
Morgan, Regional Director of the C. I. 0., who represented the
Union in its dealings with the respondent during the spring of 1940,
continued to represent the Union in its dealings with the respondent
after the July 1940 change in name. The record does not show that
the respondent ever contended that Peters or the other officers of
the Union did not represent the same organization after the Union
was chartered by the S. W. O. C. No change in the internal organ-
ization of the Union took place as a result of the change in affiliation.
The formal acceptance of a charter from the S. W. O. C. in July
1940 and the consequent change in the name of the Union did not, in
our opinion, alter the identity of the Union as a continuing labor
organization. We find that the organization which was originally
chartered by the Amalagamated was in fact the,same organization
that subsequently acquired and continued to operate under a charter
from the S. W. O. C.12
Pursuant to an "Agreement for Consent Election" entered into on
February 25, 1940, by representatives of the respondent, the Iron
Workers, and the Union, an election was conducted by the Regional
Director on February 29, 1940, among the employees in the unit
herein found to be appropriate to determine whether they desired
to be represented for the purposes of collective bargaining by the
Iron Workers, by the Union, or by neither. At that time, the unit
consisted of 284 employees; 254 ballots were cast. Of these, 150
ballots were cast for the Union, 92 for the Iron Workers, and 12
for neither. In addition, the Union's members have signed slips
authorizing the respondent to check off monthly from their wages
and turn over to the Union their union dues. According to King,
the respondent's general manager, more than 200 of the respondent's
employees thus paid dues to the Union for March 1941, the month
preceding the hearing.
12 The respondent excepted to the Trial Examiner's denial of its motions to strike all
evidence relating to the Amalgamated on the giound that there is a variance between the
pleadings and the proof , and thereupon to dismiss the complaint for want of evidence to
support it . For the reasons set forth above, we find no merit in this contention In
addition , the issue of difference in the name of the Union was raised by the respondent
itself in its answer , and was met with the evidence set forth above . We have, accord-
ingly , approved the rulings of the Trial Examiner in this regard See the Statement
of the Case , above.
PACIFIC STATES CAST IRON -PIPE COMPANY. 415
We find that on February 29, 1940; and at all times thereafter, the
Union -was,, and now is, the duly designated representative of a
majority of the; -employees in the appropriate unit and, by virtue
of Section 9 (a), of the Act, the exclusive representative of all the
employees- in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.13 -
(3) The refusal to bargain
On March 2, 1940, two days after the Union had been designated
by a majority of the respondent's employees in the consent election,
Peters and other representatives of the Union were notified that they
were wanted at the plant for a meeting. The testimony which
Peters, Farrer, and Robert 'Greaves, all of whom were present, gave
concerning this meeting was not contradicted during the hear-
ing, and was credited by the Trial Examiner. We find that the
account given of the meeting by these three employees is substan-
tially correct. They testified that representatives of the Iron Work-
ers and employees "that chose to be represented by no union" were
also invited to this meeting; and that King appeared at-the meeting,
attended by two stenographers, and announced that he had called
together "a group of the leaders" in order to make a statement of
"As noted above, the Iron Workers, which did not appear at the hearing, has filed a
petition to intervene and a motion to reopen the record in order "to take testimony to
determine by what authority the Steel Workers Oiganizing Committee Local Union 1654
claims the right to act as bargaining agency for the employees" of the respondent. In
support of its motion, it contends that it has been the "sole bargaining agency" of the
respondent's employees since August 9, 1939, when as noted above, the respondent entered
into an agreement recognizing the Iron Workers as exclusive representative of its em-
ployees The Iron Workers maintains that this is 'a "valid, existing and binding agree-
ment" which it has not "terminated, waived or abrogated " This contract, a copy of
which is appended to the petition to intervene, provides that it shall remain "in full
force and effect unless and until 30 days after notice of termination of same shall have
been given by either party to the other" It is by virtue of this agreement, which it
maintains has not been legally terminated, that the Iron Woikers now claims to be the
"sole bargaining agency" of the respondent's employees We find no merit in this con-
tention of the Iron Workers The record is clear, and the Iron Workers does not deny,
that in the consent election conducted by the Board in February 1940, in which both
the Union and the Iron Workers were on the ballot, a majority of the respondent's em-
ployees designated the Union as their representative No contention is made by the Iron
Workers that the election did not accurately reflect the desires of the employees in this
regard. As a result of the election, the Union, by virtue of Section 9 (a) of the Act,
became the exclusive representative of all the employees in the appropriate unit, and the
respondent was thereafter obligated to bargain with it as such exclusive representative.
Clearly, the August 9, 1939, contract cannot, in'the face of the consent election, operate
to perpetuate the Iron Workers as bargaining representatives of the respondent's em-
ployees (Cf. Matter of William Senn, at al . and International Union, United Automobile
Workers of America (C. I. 0 ), 30 N. L. R B., No. 102; and Matter of The American.
Coach & Body Co. and International Union, United Automobile Workers of America,
Local 755, (C. I. 0 ), 28 N. L. R. B. No. 77, wherein we held that a contract terminable
by either party on 30 days' notice will not bar a new determination of representatives )
We have, accordingly, denied the petition and motion of the Iron Workers. See the
Statement of the Case, above.
416 DECISI6NS "0F NATIONAL LABOR "RELATIONS BOARD
"company policy.` 'He added 'that he did lint want 'to lie misquoted
and for that reason the stenographer's would take `down what he said
in shorthand . Thereuijori ' lie i•eaid from a paper iii his- hand a brief
statement to the effect that, until the Supreme Court bf the United
Sfates had ruled to the cont 'ra'ry, the respondent "Would never sign
a contract with an outside of anization ." Fai ei aiid Pete 'r's also
testified , and we find , as did the Trial EYalhiher', that ' after' the
meeting, which lasted only about 10 minutes , Peters and Farrer
approached King and asked hiiii for a copy of the statement of
company policy which he had - just read. King informed them that
he had only one copy and that it would be impossible to get another
one.14 He then turned to Peters and said, "Ralph , I have known
you for a good many years , and I have known your family, and I
certainly hope we don't have any trouble at this time." Peters
replied, "Mr . King, we are not looking for trouble, and if there is
any trouble coming it will have to come from the company."
Two or three days later,1 5 King met with the grievance committee
of the Iron Workers and, according to Doyle Curtis , a member of
the committee , told the employees present that the respondent's only
objection to signing a contract with the Union such as it had signed
with the Iron Workers was that the Union was an "outside organ-
ization." King stated that he did not "recall" making this state-
ment. The statement , however, is consistent with the attitude
displayed by King toward outside unions throughout the period from
1937 to 1941 and we find that King in fact iinade such a statement.
On April 8i 1940 , the Union presented to the respondent a pro-
posed contract and requested a conference to consider its terms.-'
The contract proposed by the Union was in the form of an agreement
for a definite term between the two parties and provided for recog-
nition of the Union, a grievance procedure under which the Union
and its grievance committee were to act on behalf of the aggrieved
person, and an increase of 3 cents an hour in the basic wage rate.
This proposal was discussed at meetings between the Union and
the respondent on April 15 and April 20, 1940 , the discussion turning
"The respondent neither denied at the hearing that copies of the statement were
made, nor produced any copy of the statement.
15 This meeting was described as having taken place "on March 5 or 6" ; for con-
venience it will be referred to as the meeting of March 5
16 During the bargaining, meetings which subsequently took place, the respondent ivas
represented by King, B W Worthington , the respondent ' s assistant general manager
Claude C., Caidall , the respondent's personnel director ; Dean F. Brayton ; and Louis H.
Canister The last two men named acted as the respondent 's coiinsel at the heaciiig.
The Union was represented by A M . Peterson , Vario Jones , and James Morgan, whose
positions have been set forth above ; and the negotiating committee of the Union , including
Robert V . Gieaves , William Gogarty , Ralph Peters , Doyle Curtis , Ralph Farrer , and others
who were not named Although not all the representatives named above were present
at all the meetings, the group in general remained the same throughout the bargaining
negotiations
;, ,P.ACI IC, ;STATES , CAST 1R9N, PIPE CMPAIN417
largely on the.gnestioii of the proposed wage increase. The respond-
ent explained at one . of these early meetings .that it considered the
Iron Workers' 1939 contract ,to be still in effect, and took the position,
throughout its negotiations with,the Union, that until an agreement
was consummated i ith the latter organization, the respondent would
not take any steps to terminate,the old contract.'
. On April 27, 19,40, the respoident again met with the Union and
submitted its first counterproposal ip the form of a set of rules which
could be, modified or revised by the respondent at any time upon its
posting a notice to, that effect in the plant for 30 days. It provided
for recognition of the Union as the barg;lining agent for the respond-
ent's employees and for the handling of grievances by the Union's
representatives or grieve nce committee . A. M; Peterson, who was
present as a representative of the Union at most of the meetings
between the parties, and who testified on behalf of the Board con-
cerning them, stated that he understood from the discussion on this
day that the respondent' s proposals were to be embodied in a written
"two-party" agreement; and the question of whether the provisions;
agreed upon were to be made binding on both parties does not appear
to have occupied the attention of- the negotiators at this time. At
this meeting and at a subsequent meeting on May 4, the. substantive
provisions proposed by the respondent were discussed at length and
minor changes in them made.
On May 7, 1940, when the parties again met, the respondent pre-
sented a pew proposal which evidenced a change in its policy concern-
ing recognition of the Union. The new proposal, like the previous
one, vas in the form of a set of rules , rather than an agreement;
however, it oipitted the clause providing for recognition of,the Union.
Inste ;ld, it stated that it was the policy of the respondent "to promote
an(l improve industrial and economic'relationships betNyeen the Coin-
pany and its employees,," and that in order to effectuate that policy,
its repi;e^sentatiyes would " meet with the duly auth(rized representa-
tive or representatives of the employees" on all- matter's." It also
provided that grievances would be handled either by the aggrieved
employee himself or by his "representative or representatives." The
respondent's representatives explained on May 7 that these changes
,were made pursuant to instructions they had just received from
`Wllli,un McWtuie, the respondent's presideipt,'$ and that such of the
14 As noted above, the lion Workers' contract provided that it was to remain in full
force and effect "unless and until thirty days after notice of termination of same shall
have been given by either party to the other Termination by the Union shall be based
'upon the vote of a majority of the employees at an election held for the purpose,of con-
s>,dering such termination " The Union took the position that the contract had been
lautoniatically ternimated either at the time of'the election oi, at most, 30 days there-
,aftei, by the election agreement and the iesults of the election itself
is See Section I above Jlcwane's office is in Birmingham. Alabama
418 DECISIONS OF NATIONAL LABOR" -RET:ATIONSS' BOARD
substantive provisions- as might ultimately be agreed upon by, the
parties would " be embodied in a set of rules which would be signed
by the respondent alone and posted upon the plant bulletin boards.
When - the 'Union 'asked the reason for the respondent's refusal to
name the Union as bargaining agent for its employees , the respond-
ent replied that it wished to "avoid - changing ' the contracts fre-
quently," since it was possible that at a later date another labor
organization might be designated by the employees as their repre-
sentative . King explained that the respondent wished to have one
set of rules which would be in effect continually , so that the respond-
ent could have them printed and kept posted, without the necessity
of change , upon the bulletin boards. Dean F. Brayton and Louis H.
Callister , counsel for the respondent , who represented it during the
negotiations , informed the Union that in their opinion such a set of
,rules
. . . constituted a unilateral contract , that when the company
signed it and put it up on the bulletin board and put it out as
the rules that govern the wages , hours, and conditions, of work,
that any man who came into the plant and became an employee
accepted the terms as offered in that notice and received the ben=
efit, and was subject to the obligations of the contract that it
made. And of course the company was bound by it at all times
immediately upon signing and publishing it.
Brayton reiterated this opinion at the hearing ,' and the respondent
has urged it in - the brief it filed in support of its exceptions to the
Intermediate Report.
Two more meetings were held after this ,, on May 11 and on June
8, 1940. The substantive provisions of the contract were discussed
further, and changed somewhat, but according to' Brayton, "the im-
portant ' effort and talk was constantly devoted to this unilateral
form" of the contract and little progress was made as to substance.
It was agreed by the parties at 'the May 11, 1940 , meeting that the
Union committee would consult ' with the S. W. O. C. , and that
King would again consult McWane by' letter, in order ' to ascertain the
final positions the parties would take on the matter . On June 8,
the union representatives were called in by King, who read them
McWane's answer . McWane's letter summarized his understanding
that "after a number of meetings with our employees and their rep-
resentatives you have practically agreed on all,points for an agree-
ment except as to the form same shall take, " and then stated :
Where management and employees are both sincere in their
desire to handle their mutual problems in this [cooperative]
spirit, a signed contract with a specific agency is more of a
hindrance than a help . It is possible that the agency 's interest
PACIFIC STATES , C'AST' IRON" PIPE, `COMPAIVY_` 41-9
11: cannot at all . times be identical ' with' that" of the' employees' and
sl ,
onss ^: ti'the' Company.. ^ In such, a 'situati'on where there 'may' be . divisi
of interest , misunderstandings may occur which "may develop into
strife. , , A signed contract cannot and will not prevent ''this.' _We
-have ;no objection to signed contracts as such, but we'make them
r , whenWe,believe they are of benefit to the Company; its'employees
and its stockholders. Based ' upon- 'the experience' of other's -as
well as upon 'our feeling a two-party signed agreement with a
specific agency, ' would undermine • morale' and efficiency and
would hinder, the management or, the employees in their desire
to maintain. peaceful and fair' relations; and based 'also upon
our advice that this agreement, signed by us' alone will be-just
as effective and enforceable r by' any of our 'employees as la two-
party signed agreement , we must refuse'to enter- into` the"latter.
King told the union colnmittee'on June 8 .that ifI they. would' accept
the respondent's - last proposal, the respondent would `'at once send
notice' to the Iron Workers of the respondent's intention to termi-
nate the old contract, and, upon the expiration of '30 days, sign and
post the rules. This offer was rejected by the Union, which ' offered-
in turli'to' accept the substantive provisions of the respondent's last
proposal, if the respondent would embody them in a signed "two-
party," contract. The respondent, however, refused to recede from
the` position outlined `by McWane, and the meeting carne to a close.
On`June 24, 1940, the'Union filed charges with the Board alleging
that the respondent had refused to' bargain collectively with the
Union. Sometime in 'July 1940, at King's request, William Gogarty,
11
then president 'of the Union, appointed a Good Will Committee,
composed of Gogarty, Peters, and Greaves.19 On the morning of
September 10;'1940, King' called this 'committee to his office and an-
nounced that he intended to hold a meetingin the plant that after-
noon at, which',he would make''a'statemerit. ' Accordiligto Greaves,
whose testimony we credit,' as did the Trial 'Examiner;20 King then
said, "I 'am asking you three men-to be [at] that meeting, 'and 'after
I have said, the things I have to say,-you fellows` can hang'n`ie'or feel
as You choose." That afternoon the' lneetin'g '-announced'- by King
was held,., It was attended by representatives of the'Unfon, by offi-
cers of the Iron Workers, and by employees-wlio were'not members
of, either union.. Greaves testified,,and we- find, that King stated at
this meeting that the Union "had gone too far" in filing, charges with
the Board, against the respondent -and that the- respondent; "`could
not and, would not exist, with - a Labor Board club hanging' over its
19 The precise function intended for the committee fis not clear from the record
20 King did not deny Greaves" account of this meeting or the circumstances which led
up to , it. Greaves ' testimony was confirmed by-Ralph Farrer ' and Ralph-Peters.
420 DECISIONS-,OF NATIONAL LABOR RELATIONS, BOARD
head...." Greaves, further testified, and , we• find, as did-the Trial
Examiner, that King's remarks aroused Benj amiii Knudsen, an officer
of the, Iron Workers to -ask, "What can we do toy have; these charges
withdrawn?" , Knudsen was told by the Union's representatives that
"the thing for him to, do was to join Local Lodge 1654 and come up
to our next meeting .... and use all the influence he had to convert
the fellows to withdraw their :charges."
In the course of the meeting, which. lasted several hours, King an-
nounced that he wanted to hold other meetings of,the same character,
in order "to contact all the men in the plant to give -them the coin-
pany's position." The three union representatives, however, called
on, King the next day and told him that they did not care to attend
further meetings under these -circumstances, and were then assured
by King that no more meetings would be held: At King's request,
however, Gogarty called a meeting of the Union's members, at which
Gogarty described what had taken place at the September 10 meeting
with king; and an opportunity was then afforded the' members to
move the withdrawal of the charges that had been filed. None
of the members, however, made any such motion.
As McWane was expected to visit the plant during September or
October 1940, the Union's officers requested King to arrange for them
to meet with him at that time and King agreed to do so. McWane
arrived on October 8, and the union representatives were notified that
he would meet with them that afternoon. When they arrived at the
appointed place, however, they found that this meeting, like those of
March 2 and September 10, was to be attended by the officers of the
Iron Workers. McWane addressed the assembled groups, and accord-
ing to Greaves,
He said for the benefit of the men of the Cast Iron Pipe Company,
for their interest, and in the interest of the company and the
stockholders, that he couldn't and wouldn't sigma contract with
an outside organization. He stated further they had always
treated their employees right and always expected to. He criti-
cized us for paying our dues into an organization of [this] type.
He said of course it didn't make any difference to him, we could
belong to any organization we chose; we could even throw the
money away if we desired.
As the meeting was about' to close, McWane asked each of the union
representatives separately if they had any questions, and each replied
in the negative. McWane also announced that if "any employee or
group of employees" cared to see him after the meeting, he would meet
with them. The union representatives refrained from making such
a request. Greaves testified that he and the other union representa-
tives agreed that, inasmuch as they had already requested such a
PACIFIC STATES CAST iR0\ PIPE , COMPANY 421i .1 :I __^J-
meeting with McWane, any further request, under the circumstances
in which the suggestion was made, would "seem like pleading for a
meeting." The foregoing testimony of Greaves as to this meeting was
confirmed by Ralph Farrer and Ralph Peters. None of it was denied
by the respondent's witnesses. We find, as did the Trial Examiner,
that these events took place substantially as they have been set forth
above.
It does not appear that after McWane had announced that the re-
spondent , "couldnt -and . wouldn't isign,.a contract with an outside
organization ," the Union had any further bargaining meetings with
the respondent until 1941. At certain meetings between the union
grievance committee and King in February 1941, however, King took
-the position that individual wage adjustments and job classifications
were in effect "wage increases," and matters which should be handled
through collective bargaining , rather than through a grievance meet-
ing. The Union, accordingly, drew up a new proposed contract and,
on March 24, 1941, notified King that it wished to reopen negotiations
for an agreement and requested him to set a date for a meeting as soon
as possible.
Four days later, on March 28, before a date for a bargaining con-
ference t-had ' been set; -King ,called in the union grievance committee
and announced that the respondent was granting a general wage in-
crease of 3 cents an hour. Peters testified , and the respondent did not
deny, that this was the first general wage increase since the one granted
in 1937 when the Iron Workers first obtained a contract. According
to Clifford Taylor, the president of the Union, King also told the
union committee that if the respondent were compelled to sign a two-
party contract with the C. I. 0., it would cease to operate the plant.
When he was asked why he had been willing to sign a contract with
the Iron Workers, but was not willing to sign one with the Union, he
answered, }according to Taylor, "Well, if it was still the same bunch
e Iron orkers Union, I would still be -willing .to sign aand str-11'th W
two-party contract." King denied that he told the union committee
that the respondent would close its plant if it were ordered to sign
it contract with the C. I. 0.; he testified that he had told the men that
if the plant were closed , it would be closed by the men themselves, by
a strike. He did not deny any of the other statements attributed to
him. The statements attributed to King by Taylor are consistent
with his general attitude toward the Union. Taylor's testimony was
credited by the Trial Examiner. We find that the March 28, 1941,
meeting took place substantially as Taylor described it.
In response to the Union's earlier request, the respondent met with
the negotiating committee on April 5, 1941, 2 days before'the hearing
in this proceeding. At this meeting, the respondent refused to state
433217-42-ror, 37--28
I ,
422 DECISIONS OF `NATIONAL LABOR RELATIONS' BOARD
iwhether or not' -it would'sigii a coiitia'ct with --the Union , on the ground
that the "matter must now be decided'by the Board. King again told
the committee ' at this meeting that he cohi idered • the Iron Workers'
'contract to be still in effect.
,(4) Conclusions with respect to the refusal to bargain and other
interference , restraint , and coercion
From the time of the election on February 29, 1940, when the Union
was selected by the employees as their bargaining representative, until
the time of the hearing , the respondent has consistently and openly
displayed its determination not to accord to the Union the full recog-
nition which would give reality to its legal status as exclusive repre-
sentative ' of the respondent 's employees. The respondent has
steadfastly refused to enter into a signed - agreement with the Union.
It has proposed , instead, a set of rules which it would print and post in
the plant, and has refused to provide in this set of rules for recogni-
tion of the Union as exclusive representative of its employees. Nor
has the respondent honored its obligation to deal exclusively with the
-Union. At frequent intervals it has asked the Iron Workers to attend
conferences with the respondent and the•Union and it invited the Iron
Workers to the only meeting the Union was able to secure with
McWane, the respondent's president. At this meeting, McWane of-
fered, after announcing that the, respondent would not enter into an