Rieke Metal Products Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1942

40 N.L.R.B. 867 (N.L.R.B. 1942)

In the Matter of RIEKE METAL PRODUCTS CORPORATION and STEEL.
WORKERS ORGANIZING Coin1ITTEE LOCAL 2304, AFFILIATED WITH
C. I. O. and TRI-STATE INDEPENDENT WORKERS UNION, LOCAL 2,
PARTY TO THE CONTRACT.
Case No. C-2011.-Decided April 28, 19412
Jurisdiction : sealing devices for steel containers manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; opposing circula-
tion of petition for wage increases ; publishing advertisements which were
inaccurate and calculated to discredit affiliated labor organization ; employer's
contention that advertisements were sanctioned by right of free speech found
to be without merit ; discharge and lay-off of union members because of union
membership and in furtherance of employer's determination to impede self
organization.
Company-Dominated Union: inspired by employer's persistent opposition to self-
organization and to the legitimate union-support: organizational meeting
held in the plant, during a strike provoked by employer's unfair labor practices,
,and attended by assistant foremen and had the approval of higher supervisory
employees ; membership solicitation and dues collection permitted in the plant
notwithstanding publication of notice prohibiting such activity; financial
assistance rendered through use of vending machines-indicia : granted ex-
clusive recognition after charges alleging company domination had been filed
with the Board ; purport of bargaining contract, executed after one short
conference, was to eliminate legitimate union, without giving employees sub-
stantive concessions regarding wages, hours, and working conditions.
Diservm,in,ation: charges of, dismissed as to operation of discharge proviso in
the contract.
Remedial Orders : dominated union disestablished ; contract abrogated ; affirma-
tive relief withheld in connection with the discriminatory discharges and
lay-offs, inasmuch as they were not expressly litigated as unfair labor practices,
within the meaning of Section 8 (3) of the Act.
Practice and Procedure : employer's contention that an arbitration award made
pursuant to an agreement, to which the Board was not a party, to arbitrate
the legality of the discharges should foreclose Board consideration of dis-
charges as unfair labor practices, held without merit since the Act gives Board
exclusive jurisdiction, "not affected by any other means of adjustment."
Evidence : testimony concerning acts of misconduct by strikers in connection
with a labor dispute fails to establish that such activity motivated formation
of inside union, where employer's unfair labor practices provoked the labor
dispute and were calculated to divert self-organization from the legitimate
union to another organization acceptable to the employer; testimony concerning
the effector lack of effect of the employer's unfair labor practices on individual
employees, held immaterial
40 N L. R: B., No 156."
-867
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Jack G. Evans, for the Board.
Mr. H. C. Springer, of Butler, Ind., and Mr. Dan M. Link, of
Auburn, Ind., for the respondent.
Mr. W. E. Whitaker, of Kokomo, Ind., for the Union.
Mr. Walter D. Stump, of Auburn, Ind., for Local 2.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
'Upon a second amended charge duly filed on August 12, 1941,1 by
Steel Workers Organizing Committee Local 2304, 'affiliated with the
C. I., 0., herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Thirteenth Region '(Chicago, Illinois) issued its complaint dated
August 13, 1941, against Rieke Metal Products Corporation, Auburn,
Indiana, 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), (2), and (3) and
Section 12 '(6) -and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied by
notices of hearing thereon, were duly served upon the respondent
and the Union.2
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent : (1) from about October 25, 1940,
urged, warned, threatened, laid off, and discharged its employees
to dissuade them from joining or retaining membership in or assist-
ing the Union, or from engaging in concerted activities for their
mutual aid and protection; made certain anti-union statements;
threatened' to close down its plant or to curtail production if its
employees joined or assisted the Union; questioned employees as to
their union affiliation and activities; discriminated against union mem-
bers as ,to the nature of their jobs and working conditions; and
threatened bodily harm to employees who joined or assisted the
Union; (2) on or about January 22, 1941, instigated the formation
of Tri-State Independent Workers Union, Local 2, herein called
Local 2, and thereafter dominated and interfered with the administra-
' The original charge was filed on February 8, 1941 , the first amended charge on
August 2, 1941.
' Service upon Tri-State Independent Workers Union , Local 2, could not be effected.
Mail addressed to it was returned , marked "not there ." However, as stated below, a
motion by that organization to intervene was granted by the Acting Regional Director
before the hearing began. ,
RIEKE METAL PRODUCTS CORPORATION 869
tion of Local 2, and contributed financial 'and other support to it;
or or about February 17, 1941, recognized Local 2 as the exclusive
bargaining representative of its employees at a time when Local 2
did not represent a majority' of said employees; and assisted Local 2
in other specified ways; and (3) on or about February 25, 1941, en-
tered into h collective bargaining contract with Local 2 as the sole
bargaining agent of all employees of the respondent except foremen
and office clerks, providing, among other things, that the respondent
would not retain in its employ, over the objection of Local 2, any
newly hired employees. The complaint further alleged that Local 2
was not at the time of the execution of the contract, or at any time,
the lawful representative of the, respondent's employees, within the
meaning of Section 9 (a) or the proviso of Section 8 (3) of the
Act; that the respondent entered into the said contract as part of
a plan to combat and interfere with the self-organization of its. em-
ployees; that by entering into, maintaining, and enforcing the con-
tract of February 25, 1941, the respondent discriminated and is now
discriminating in regard to the hire and tenure of employment and
the terms and conditions of employment of its employees, thereby
discouraging membership in the Union and encouraging membership
in Local 2, and that the contract is therefore void.
Thereafter, Local 2 filed with the Regional Director a motion to
intervene and on August 26, 1941, this motion was granted by the
Acting Regional Director.
On or about August 22, 1941, I the respondent filed an answer and
on or about September 8, 1941, an amended answer, in which it ad-
mitted certain allegations with respect to its business , denied that it
had engaged in unfair labor practices, and made certain affirmative
allegations more fully treated hereinafter.
Pursuant to notice,, a hearing was held at Auburn, Indiana, from
September 8 to September 16, 1941, before Gustaf B. Erickson, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the respondent, and Local 2 were represented by counsel, and
the Union by its representative; all parties participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. At the close of, the Board's case, counsel for
Local 2 moved to dismiss the complaint in its entirety, as well as
specified paragraphs thereof. Counsel for the respondent also moved
to dismiss specified paragraphs of the complaint. The Trial Exam-
iner denied these motions except insofar as' they related to para-
graphs 6 and .8 3 of the complaint. As to them he reserved ruling
on the motions and later denied them in his Intermediate Report.
I
2 These paragraphs alleged the invalidity of the contract of February 25, 1941.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of the hearing the Trial Examiner without objection
granted the Board's motion to conform the pleadings to the proof.
During the course of the hearing the Trial Examiner made a 'number
of rulings on other motions and on objections to-the admission of
evidence. The Board has reviewed all, the rulings of the Trial
Examiner and finds that no prejudicial errors weie committed. The
rulings are hereby affirmed.
On November 17, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were served on all the parties, in which he
found that the respondent had engaged in unfair labor practices af-
fecting commerce, within the meaning of Section 8 (1) and (2) and
Section 2 (6) and (7), of the Act. He recommended that the re-
spondent cease and desist from its unfair labor practices and with-
draw recognition from and disestablish Local 2. He also found that
certain allegations of the complaint, set forth below, were not sup-
ported by the record and recommended that they be dismissed. Ex-
ceptions to the Intermediate Report and briefs in support of the
exceptions were filed by the respondent and Local 2.
,,Pursuant to notice and at the request of Local 2 and the respondent,
a_hearing•was lield before the Board at Washington, D. C., on Jan-
uary 29, 1942, for the purpose of oral argument. The respondent
and Local 2 were represented by counsel and participated, in the
argument. The Board has' considered the exceptions, to the Inter-
mediate Report and the briefs in support thereof and, insofar as'the
exceptions are inconsistent with the findings, conclusions, and order
set ,forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Rieke Metal Products' Corporation, an Indiana corporation, is
engaged in the manufacture, sale, and distribution of sealing devices
for steel containers.* During 1940 it purchased raw materials, con-
sisting principally of steel, valued at approximately $150,000, of
which approximately 50 percent was obtained from points outside
Indiana. During the same year the respondent sold finished products
valued at approximately $500,000, all of which were shipped to des-
tinations outside Indiana. The respondent admits, for the purpose of
this proceeding, that it is engaged in commerce within the meaning of
the Act.4
* The above findings are based largely upon a stipulation between counsel for the Board
and the respondent made at the hearing, that the allegations in tho complaint with regard
to the business of the respondent are "substantially correct."
t
RIEKE METAL PRODUCTS CORPORATION 871,
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee, Local 2304, is a labor or-
ganization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the respondent.
Tri-State Independent Workers Union, Local 2, is an unaffiliated
labor organization, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to the middle of October 1940 there had been no concerted
activity among the employees of the respondent. At that time sev-
eral employees, including Arnold Seifert, William J. Neubauer, and
Romey McSorley, signed a petition for a wage increase which was
circulated'in the plant. Shortly thereafter, Trevor Mavis, the gen-
eral foreman, sent Seifert and Neubauer, separately, to the office to
speak with Irwin Rieke, the respondent's president and general man-
ager, concerning the petition. In the presence of Mavis, Rieke told
each of these employees in substance that the respondent objected to
the circulation of petitions in the shop and that the employees should
individually present their grievances directly to the management.
Rieke also told Seifert that, the respondent "wanted to keep the place
as one, big, happy family around there." Neubauer testified that
Rieke also told him that before he would have an organization in
the plant he would "pull the main switch." Rieke denied making
this remark. The Trial Examiner, who observed the demeanor of
the witnesses throughout the hearing, did not credit the denial. The
alleged remark is consistent with the respondent's action, revealed
in the record, of aiding Local 2 and 'opposing the efforts of the
Union to organize. We find, as did the Trial Examiner, that Nen-
bauer's testimony is substantially accurate and that Rieke's remark
was a threat to close the plant in the event that the employees should
join a union. At the time of his conversations with the two men
Rieke gave Seifert a wage increase and promised that Neubauer
would receive one within 2 weeks if his work improved.
At about the same time McSorley, having heard that several
signers of the petition had received wage increases, asked Rieke for
a raise. Rieke and McSorley engaged in a discussion about the peti-,
Lion and after the latter acknowledged, that he had signed it, Rieke
asked him if he though it was a "fair thing" to do. MeSorley re- _
plied in the negative but stated that it was the employees "way of
getting a raise." Rieke then gave McSorley a wage increase and
1 he conversation ended.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, as did the Trial Examiner, that by the foregoing- state-
ments of Rieke the respondent indicated its opposition to, and dis-
couraged, concerted activity on the part of its employees.
There was no further concerted activity by the respondent's em-
ployees until the night of January 14, 1941, when two employees of
the respondent, Evelyn Kelly and Ernest Surfus, secured membership
application forms and commenced soliciting their fellow employees
to join the Union. Shortly thereafter on January 16 the respondent
posted upon its bulletin board the following notice :
NOTICE TO EMPLOYEES OF RIEKE METAL PRODUCTS CORPORATION
It has come to my attention that there is pressure being brought
upon certain groupes (sic) of employees of this plant and the
management wants to make themselves clear that in the first place
this is the United States of America and not Nazi Germany.
This is still a free country and as far as our factory and em-
ployees are concerned we intend to see that it stays that way.
'No one need have fear that, his or her job will be jeopardized by
any groupe (sic) of intimidators. Each and every employee
of this corporation is a part of it and we intend to see that
each of you remain a part of this organization so long as you
cooperate and fulfill your duties.
It has been the policy of the management of this corporation
to procure as much business as the plant can handle and you
are directly benefited by this principle. Your action in the future
will determine whether we are to pursue this policy.
The president,
[Signed] IRWIN H. RIEKE.
Rieke testified that he posted the notice because employees had com-
plained to him that they were being threatened that they would lose
their jobs if they did not join the Union. Under all the circumstances
of the case, however, including the timing of this notice closely on
the initial appearance of the Union at the plant, the inferences
reasonably drawn from its text,' the respondent's previous effort to
discourage concerted activity, found above, and in context with its
other illegal acts of interference and coercion. herein after found, we
are of the opinion, as was the Trial Examiner, and we find that the
notice was calculated to, and did, evidence the respondent's hostility
"The whole tenor of the notice reflects a hostile attitude toward union activity. It
fairly implies that the Union and its adherents are a group of " intimidators" and that
their advent threatens the susbtitution of Nazism for Americanism at the plant. It
contains a veiled threat that a continuation of union activity may result in a plant
shut-down or a curtailment of production
RIEKE METAL PRODUCTS CORPORATION 873
toward the Union and impede the organizational efforts of the
employees.'
The day after the above notice appeared on the bulletin board,
General Foreman Mavis and Earl Tooman, an employee, had a con-
versation iii the plant about lay-offs. Tooman testified that during the
conversation Mavis asked Tooman whether he was a member of the
Union; and that after he replied in the affirmative, Mavis remarked
that the respondent knew which of its employees were union members,
and that if the ring leaders were laid off the other union members
would be "scared out." Although at the hearing Mavis' recollection
of this conversation was vague, he denied the above statements at-
tributed to him by Tooman. The Trial Examiner found Tooman to
be a credible witness. We agree with the Trial Examiner and accept
Tooman's testimony as substantially accurate.
On or about the same day that the above conversation occurred and
during the height of the union organizational efforts, the respondent
discharged the following employees : Evelyn Kelly, Betty Ballentine,
Burnice Burch, Marjorie Ballentine, James W. Miller, Richard Sei-
fert, and William Neubauer, all of whom were union members.7 The
respondent contends that these seven employees were discharged for
cause. Neubauer, Seifert, Kelly, and the two Ballentine girls were
discharged by General Foreman Mavis. The latter testified that
earlier on the day of the discharges he discussed the deficiencies of
these employees with one of the Riekes who authorized their discharge.
Concerning these alleged deficiencies, Mavis further testified that
Neubauer was discharged because he had reported to work in an in-
toxicated condition sometime prior to January 17; that Seifert was
discharged because lie had improperly operated his machine in viola-
tion of a safety rule; and that Kelly and Betty Ballentine were dis-
charged because they had remained too long in the rest room and
talked to other operators while their machines were being fixed.
We agree with the Trial Examiner's conclusion that Mavis' explana-
tions concerning the discharges are not credible and do not reflect
the real reason for the discharges. For example, Mavis admitted at
the hearing that notwithstanding Neubauer's reporting to the plant
intoxicated, he was thereafter given a wage increase. Seifert's al-
leged violation of a safety rule, according to Mavis, occurred a week
or so prloi\to the date of his discharge. We are satisfied that if the
alleged deficiencies of these employees in fact existed, the respondent
'See N L R B V, Valley Mould if lion Oorp . 116 F . ( 2d) 760 (C C A 7), enf'^
Matter of Valley Mould and Iron Coipoiation and Steel TVoibers Organizing Committee eto.
20 N L . R B 211 , and N L. R B V Titan Metal Mfg Co 106 F. ( 2d) 254 (C. C. A 3),
cert . den 308 U S 615, enf 'g Matter of Titan Metal Manufacturing Company and Federal
Labor Union No. 19981 , 5 N L. R B 577
' As discussed below the respondent at about the same time laid off 18 other employees,
1*3 of whom had signed union application cards.
874' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not have considered such to be cause for discharge had it not
been motivated by anti-union sentiment. As to Burnice Burch,
Marjorie Ballentine, 'and James W. Miller, the Union's president, nei-
ther Mavis nor any other witness for the respondent offered any
explanation at the hearing for their discharge.
Our' consideration of the entire record leads us to the conclusion
that the respondent discharged these employees because of their union
activity and in furtherance of its determination to impede self-orgam-
zation among its employees. Our conclusion is based upon the follow-
ing circumstances among others: (1) the discharges occurred shortly
`after the Union first appeared at the plant and during the height of its
organizing campaign; (2) only union members, including its presi-
dent; were discharged; (3) the respondent failed to explain to the
employees at the time of their discharge the reasons therefor; 8 (4)
prior to the discharges, General Foreman Mavis had never discharged
any employees; 9 and (5) the respondent gave unconvincing reasons
at the hearing to explain the discharge of some of the employees and
no explanation as to the discharge of the others.
In its amended answer the respondent contends that the question
involving the foregoing discharges was "fully adjudicated and dis-
posed of by reason of an arbitration agreement and award and that
therefore the Union is estopped to raise the question of the discharge,
of said workers as an issue in this proceeding." 1e This contention
is without merit. This proceeding is concerned not with private
rights, but' rather with enforcement of a public policy over which
the Board, pursuant to Section 10 (a) of the Act, has exclusive juris-
diction, "not affected by any other means of adjustinent."
As noted above, on about the day of the foregoing discharges,
the respondent laid off 18 employees, 13 of whom had signed union
8 The separation reports of Burch, Kelly, and the two Ballentine gills originally assigned
no reason for their discharge Later when they requested the reason for their discharge,
the respondent ' s secretary placed an "X" on their reports before the words "Discharged
for misconduct in connection with his work "
9 At the hearing Mavis testified that prior to the time in question he could not recall
ever having discharged any one during the 8 or 9 years lie bad served as foreman at the
plant
100n January 28, 1941 , the respondent and the Union entered into an arbitration
agreement, to which the Boaid was not a party, whereby a strike at the respondent's
plant , hereinafter discussed , was settled ; the laid-off employees were recalled to work,
and the cases of the seven discharged employees were submitted to an arbitration board
of three members to determine whether or not said employees had been discharged
for union activity The aibitrators conducted-an investigation and found that all
said employees except Miller "were dischaiged illegally ," and ' recommended that the
six illegally discharged employees be reinstated with back pay. Thereafter; in accordance
with thus' finding and recommendation, the six employees were so reinstated by the
respondent with back pay
''' See N. L R B v General Motors Corporation , 116 F (2d) 306, (C C A 7) enf g
Matter of General Motors Corporation and International Union United Automobile TVorkers
of America, 14 N L. R. B 113 , and Matter of Jacob H Klotz, etc' and Joint Board
etc , 13 N . L. R. B. 746
RIEKE METAL PRODUCTS CORPORATION 875
.authorization cards. The respondent contends that the 18 lay-offs
were due to a slump in business. While the record affords insufficient
.basis for determining whether or not the lay-offs were required by
a decline in the respondent's business, nevertheless the question re-
,mains whether the respondent, in selecting the employees to be laid
.off, took into account their union activity or membership. Mavis
testified that he was ordered by the Riekes to lay off some employees
and that in selecting the employees to be laid off he "used seniority
rights and the newest help that came on, and the best workers."
Mavis could not recall the name of a single employee laid off, nor did
'he specify the reasons for the lay-off of any particular employee.
.He admitted, however, that some of the laid-off employees had more
seniority than other employees not included in the lay off.12 Russell
Dove, a foreman, who was also charged with responsibility for select-
ing employees to be laid off, testified that he selected the employees
to be laid off in accordance with the usual method which, according
to Dove, is to "give the ones that have been there the longest the
preference, and pick out the best help." As was the case with Mavis,
Dove also did not specify the reasons for the lay-off of any particular
employee.
In light of the respondent's failure to explain why the laid-off
employees were selected for severance, it is significant to note that
a substantially larger proportion of union employees was laid off than
_the' number of union employees bore to the total number of employees
in the plant. Of a total of approximately 150 employees in the plant,
about 40 percent were then members of the Union. Of the 18 laid
off, 13 were union members, constituting 72 percent of the total laid
off. Moreover, as has been found above, Mavis had told Tooman that
the respondent knew who the union members were.
Under all the circumstances, including the respondent's failure to
'explain why the employees in question were selected for lay-off instead
of other employees who were junior to them in length of service;
the disparity in percentages as set out above; 13 the evidence of
hostility toward the Union by the respondent, 'as revealed by the,
entire record; and our finding above that 7 employees were dis-
charged because of their union affiliation and activities, we find, as
did the Trial Examiner, that the 13 union members were laid off on
"We note that notwithstanding the implication in the respondent ' s advertisement of
January 18 , set forth below , that this was a lay-off of "temporary employees due to
seasonal slump ," at least one of the laid -off employees , Arnold Seifert, was first employed
by the respondent in December 1938
'3 See Montgomery Ward & Co v. N. L R. B, 107 F . ( 2d) 555 (C. C. A. 7), enf'g as
mod. Matter of Montgomery Ward & Company and Reuben Litzenberger et at., 9
N L R B 538 ; and F W. Woolworth Co. v. N L. R. B, 121 F (2d) 658 (C C. A. 2)_
enf'g as mod. Matter of F. W Woolworth Company et at. and Untited Wholesale
Warehouse Employees of New York , Local 65, 25 N L R . B 1362.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 17 as a part of the respondent's campaign of interference,
restraint, and coercion.
On the evening of January 17, after the discharges and lay-offs,
the Union held a meeting, with about 40 employees in attendance,
to consider ways and means of obtaining the reinstatement of the
employees who had been laid off and discharged. The next morning,
January 18, a substantial number of employees went on strike and
established a picket line. , However, approximately 70 employees,
who apparently were not union members, did not strike and went
through the picket line to report for work.
On the evening of the first day of the strike the respondent caused
to be published in a local daily newspaper a full page advertisement,
reading as follows :
A STATEMENT
BY
RIEKE METAL PRODUCTS CORP.
What appears to be a labor disturbance at our plant seems
to have provoked rumors of all sorts-false and otherwise-
but, in fairness to our employees, in particular, and the public
in general, we feel duty-bound to present the following facts :
1. We do not know what is behind the disturbance or who is
fostering it. We have not been approached by any individ-
ual employee or group of employees on the matter.
2. We are inclined to believe that any dissension is created by
outside parties-not our regular employees and not citizens
of this community.
3. We feel it to be the duty and the right of not only us, but the
entire community, to protect our regular employees so that
they may be free to continue to work without being subjected
to coercion or threats from outside influences and we intend
to continue to protect our employees and our property ac-
cordingly, and especially against the rowdyism that char-
acterized the initial stages of this disturbance.
4. We have not and do not intend to violate any of the provisions
of the Wagner Labor Act.
This corporation started operations in a small way in this
community almost 20 years ago. We believe it has fulfilled the
hopes of the community that it would grow by its own efforts
and profits to gradually employ more and more local citizens to
the obvious benefit of the community at large. Like most other
manufacturing enterprises, however, our business has its peaks
RIEKE METAL PRODUCTS CORPORATION 877
and valleys with the result that our employment must fluctuate
over the year. Our regular employees understand this situation.
Perhaps our temporary employees (of which we were obliged
to add more than usual during the peak. season just passed) do
not, and perhaps the recent lay-off of some of these temporary
employees due to seasonal slump has provoked this present situa-
tion.
In any event we would like to anticipate the continued support,
of all local employees and citizens in protecting, as we see it-the
American way of life.
Respectfully submitted,
IRWIN H. RIEKE, President.
The Trial Examiner found that by placing this advertisement in
the daily paper the respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act. In its brief, the respondent contends that this finding
is repugnant to the constitutional guarantee of free speech inasmuch
as the purpose of this advertisement was to state publicly the respond-
ent's viewpoint in connection with a pending labor controversy.
It is apparent that the advertisement went far beyond a fair
factual statement concerning the existing labor dispute. The adver-
tisement was inaccurate in that the respondent disclaimed knowledge
of any reason for the "labor disturbance" at the plant, indicated that
such "disturbance" was the result of "dissention", among the em-
ployees caused by the Union, and made it appear that the dispute
did not involve its "regular employees"; whereas in fact the respond-
ent, by its discharge and lay-off of union members had provoked
the strike and must be deemed to have been with knowledge of its
cause and of the participation in it by a substantial number of its
employees either as union members or sympathizers. Moreover, by
characterizing the Union and its adherents as "outside parties" and
as "not ,citizens of this community" and by charging that the Union
subjected employees "to coercion or threats from outside influences,"
the respondent further sought to incite the employees, as well as the
community at large, against the Union.14 Viewing this advertise-
ment in light of the respondent's entire course of conduct and against
the background of the strike and the other illegal, interference of
14 See Roebling Employees Association , Inc v National Labor Relations Board at at,
120 F. (2d) 289 (C. C. A. 3), enf'g as mod Matter of John A Roebling's Sons Com-
pany and Steel Workers Organizing Committee, 17 N. L. R B 482, where the court stated
The connotation of the terms "misleading," "outsiders," and "strangers ," as applied
by the respondent to adversaries in a labor controversy, has an appropriate place
in a consideration of the respondent 's attitude toward "outside" labor organiza-
tions and the probable effect of that attitude upon employees.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent with employee self-organization,15 we find that it was
calculated to,' and did, interfere with and coerce the employees in
the. exercise of the rights guaranteed by the Act. Under the cir-
cumstances the respondent's contention that the right of free speech
sanctions the language of this advertisement, is without merit 16
We find that by the respondent's entire course of conduct as dis-
closed by its opposition to the circulation of the petition for a wage
increase in the fall of 1940; by Rieke's comments to employees
Seifert, McSorley, and Neubauer in connection therewith; by,Rieke's
threat during the same period to Neubauer that he would shut down
the plant before he would have a union therein; by the publication
of the notice of January 16; by discharging and laying off union
members on or about January 17; and by the publication of the ad-
vertisement of January 18, the respondent has interfered with, re-
strained, 'and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. We further find that the strike
on January 18, called in protest againt the discriminatory discharges
and lay-offs, was provoked by the respondent's unfair labor practices.
B. Domination and support of, and interference with, Local 2
1. Origin-and history of Local 2
During the period of the strike, which began on January 18 and
continued through January 23, 1941, the respondent housed and
provided meals for those employees who had crossed the picket line
to report for work, and paid them their regular wages plus a 5 cent
per hour increase. It also paid several male employees an additional
$5 per day for service as guards during the time that they were not
working at their regular jobs. On January 19, Charles Kalb, one
of the non-strikers who also acted as a guard, with the assistance
of a reporter for the local daily newspaper, composed an advertise-
ment 17 purporting to express "the feeling . . . of the workers on
the inside of the plant." Later the same day Kalb called together
the employees inside the plant for. a meeting in the shipping room.
15 See Section B, infra.
16 See National Labor Relations Board v. Chicago Apparatus, 116 F. ( 2d) 753 (C C. A.
7•), in which the Court stated:
Expressions of opinion concerning labor unions , by an employee . , may be of
such a nature that their effect is to coerce and intimidate the employees .. .
To hold that such expressions , when employer manifestly intended to give them
such an effect, are not violative of the Labor Act would be to nullify the provisions
of the Act and to thwart the public policy evidenced by said Act.
See also National Labor Relations Board v. New Era Die Co , 118 F ( 2d) 580 ; cf. Na-
tional Labor Relations Board V. Virginia Electric d Power Co , 62 S. Ct. 344 , and National
Labor Relations Board v Noiinan H Stone at at ., 125 F. (2d) 752 (C C A 7)
17 Kalb testified that the reporter , who was in the plant covering the strike, was
pointed out to him as such by Mavis . Kalb thereupon enlisted the help of the reporter
in the composition of the advertisement.
RIEKE METAL PRODUCTS CORPORATION 879
He read the advertisement to them and indicated that the advertise-
ment was to be published in the local newspaper. He also requested
the employees to sign the advertisement so that their names would
appear therein, and assessed each 25 cents to help defray its cost.18
By this request and through individual solicitations, the signatures
of 76 employees to this advertisement were obtained in the plant.1°
Among the signers were General Foreman Mavis and Foreman Ar-
thur Hardy, Leonard Rathert, and Henry Rathert,20 as well as Assistant
Foremen Ralph Hefty and George Bauman, whose acts are attributable
to the respohdent.21
. This advertisement appeared in a local newspaper.on January 20,
as follows :
-WHAT Do You THINK? , , ,
1. We're sticking with Rieke's, although a few are on the out-
side demanding C. I. O. recognition.
2. We're satisfied with our jobs here.
3. We don't want C. I. O. recognition.
4. We DO want to work peacefully.
5. We think that's our right-what do you think?
6. Will you help us maintain the American way of living?
(22)
a a s t s a e
EMPLOYEES OF
RIEKE METAL PRODUCTS CORP.
AUBURN INDIANA
is Kalb collected $10 10, which he later turned over to Local 2. On February 14,-
Local 2 authorized payment for the advertisement and appropriated from its treasury
an additional $4 15 for that purpose.
iu Waldo Bowman, an employee, testified that he was called into the office where Kalb
had this advertisement and asked to sign it. Bowman further testified that when he
entered the office Bisel, the respondent's secretary-treasurer, was present, "but he [Basel]
walked out because lie said the company didn't want anything to do with that." Kalb
denied that any signatures were obtained in the office; Bisel testified that he had
nothing to do with the advertisement. We credit, as did the Trial Examiner, the
testimony of Bowman
20 The names of the geneial foreman and the foremen did not appear in the adver-
tisement as printed After having signed the advertisement and prior to its publica-
tion, the foremen decided that the advettisement was "just for the employees themselves"
and requested that their names not be printed with the others. However, the names of
the assistant foremen did appear in the printed advertisement.
a The duties of -Hefty and Bauman were the same. The record shows that Hefty acted
as a plant foreman in the absence of Mavis, who was absent from the plant about 2
hours each day. That both Hefty and Bauman were regarded as supervisory employees
is indicated by the statement in a letter by the respondent to Local 2, to the effect that
cards signed by these two should not be counted in computing a majority designation
for Local 2 since they both performed "some part' time supervisory services " Further,
in a letter to the Selective Service Board of DeKalb County, Indiana, the respondent
referred to Hefty as an assistant foreman. We find that Hefty and Bauman exercise
sufficient supervisory authority and are otherwise identified with management so as to
charge the respondent with their acts See International Association of Machinists, etc. V.
National Labor Relations Board, 311 U S 72
2' The names of the signets of the advertisement are here omitted
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of January 22 and while the strike was still in
progress, Cecil Stinson and Vernon Meyers, inspectors in the red
spondent's plant, discussed the possibility of forming a union re-
stricted to employees of the respondent. That evening both Stinson
and Meyers left the plant at about 6 p. in. and visited Burgess
Barnhart, secretary of Tri-State Independent Workers Union, Lo-
cal 1,23 to obtain information concerning the organization of an
inside union. Barnhart in turn accompanied them to one Mountz,
attorney for Local 1, who gave them a membership application form.
Stinson and Meyers then had printed a batch of applications for
membership in Local 2 and returned to the plant with the applica-
tions at about 9 p. m. that same evening. Shortly after their return
they met with a group of employees who had remained in the plant
during the strike 24 and discussed the formation of Local 2. At that
time approximately 35 employees, including Assistant Foreman Hefty
and Bauman, signed Local 2 application cards in the plant. No at-
tempt was made to conceal what was taking place inside the plant
during this time. The discussion was open, as was the process of
securing signatures to the application blanks. General Foreman
Mavis and the other foremen were in the plant during the strike
and on the evening of January 22. The activity in connection with
the discussion and the signing of the cards was sufficiently open and
widespread to apprise the respondent with notice of the fact that a
labor organization was being organized by the non-strikers on its
premises. We find, as did the Trial Examiner, that it was so apprised.
On January 23 the strike was settled by the arbitration agreement
mentioned above.25 The same day 41 other employees signed Local 2
membership application cards. On the following day, after normal
production operations were resumed at the plant, the respondent
posted on its bulletin board a notice stating :
"SOLICITATION IN THIS PLANT OF MEMBERSHIP IN ANY ORGANI-
ZATION Is EXPRESSLY PROHIBITED"
Irwin Rieke testified that after the strike there was considerable
friction among,the adherents of the two rival organizations which
tended to impair efficiency and that the notice was posted to promote
harmony by eliminating union activity in the plant. This notice
23 This was an unaffiliated labor organization whose membership is restricted to em-
ployees of the Auburn Rubber Company, Auburn, Indiana,
%1 Although the employees on pievious evenings had been asked to remain for guard
duty, they had been told, on this evening, that they could go home if they wished
Most of the male employees had chosen nevertheless to stay in the plant.
25 See footnote 9 above
RIEKE METAL PRODUCTS CORPORATION 881
could not, however, counteract the effect of Local 2's prior solicitations
in the plant, of which the respondent had knowledge.26
Moreover, even after the posting of this notice Local 2 continued
its solicitations in the plant. Burnice Burch testified that on three
occasions, and at least once in the presence of Foreman Dove, Cecil
Stinson solicited her in the plant to join Local 2.27 Stinson denied
this solicitation but admitted that after obtaining Dove's permission
he spoke with Burch at her machine concerning Local 2's contract.
We accept, as did the Trial Examiner, Burch's, testimony. Other
employees,, whose testimony we credit, as did the Trial Examiner,
testified that they also were solicited in the plant to join Local 2.
In addition, monthly dues of 50 cents were regularly paid and col-
during working hours inside the plant by Local 2's secretary.lected
We find, as did the Trial Examiner, that after the posting of the
above notice, solicitation and collection of dues were carried on by
Local 2 in the plant under such circumstances that the respondent
was aware of this activity, and that it took no effective steps to
prevent it.
The first regular meeting of Local 2 was held on January 27, 1941,
outside the plant. At that meeting articles of association and by-
laws were adopted and a board of directors was elected, consisting
of Cecil Stinson, Vernon Meyers, Helen Kirkendall, Marselle Engle,
Ralph Hefty, Idress Root, and Max Martin. Thereupon the directors
elected as officers of Local 2 the first four named persons as president,
vice president, secretary., and treasurer, respectively.
On January 29, Local 2 wrote to the respondent stating that it
represented a majority of the respondent's employees and requested
recognition as exclusive bargaining representative. On February 1
the respondent replied stating that the law required it to ascertain
whether or not Local 2 represented a majority before the request
could be granted; that the Union claimed to represent a portion of
the employees ; and that since the respondent desired to comply with
the law Local 2 should submit proof of membership which could be
checked against the respondent's pay roll.
Accordingly, Local 2 submitted 96 membership cards which the
respondent checked against the pay ro11.21 On February 5 the re-
spondent notified Local 2 that a pay-roll check indicated that Local
2 apparently represented a majority of its employees, but that since
^ By this time, Local 2 had already succeeded in obtaining the signatures of a sub-
stantial number , if not a majority , of the employees , and this had been effected by the
aid and assistance of the respondent
21 Stinson ' s station was on the first floor and it was necessary for him to go to the
second floor to see Buich -
28 The respondent questioned only the inclusion of Floyd I-lefty and George Baumac
on the ground that they performed "some part -time supervisory services " See footnote
21, supra.
-455771-42-vol 40-56
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union claimed to represent certain employees the respondent
would, as required by law, give the Union an opportunity to submit
proof of membership, and that if Local 2 did represent a majority, the
respondent would proceed to bargain with it. On the same day the-
respondent wrote to the Union of Local 2's demand; informed the
Union of the evidence presented by Local 2; indicated that Local 2
apparently represented a majority of the employees; that the respond-
ent had advised Local 2 of the Union's claim for bargaining rights;
and that the respondent, would not take any action upon Local 2's
demand until the Union had had an opportunity to present evidence
of membership.
On February 7, the Union replied stating that it had filed charges
with the Board that the respondent had instigated the formation of
Local 2, "a company-dominated organization," and requested that the
respondent refrain from bargaining with Local 2 until a hearing had'
been conducted by the Board.
The respondent informed Local 2 on February 17, that it was ready
to meet with a committee of Local 2 for the purpose of , collective
bargaining. On February 25, the bargaining committee of Local 2
met with the respondent for the first time and entered into a collec-
tive bargaining contract which was approved by Local 2 on the
following day. The contract granted Local 2 recognition as exclusive
bargaining agency for all the respondent's employees except foremen
and office clerks. It was to be in effect for a year, and to continue
from year to year thereafter unless terminated by either party upon
30 days', notice prior to the expiration of any annual period, and
there was a provision against strikes and lockouts. With regard to
wages, hours, and working conditions, the contract provided :
Whereas, the employees are at the present time contented and
satisfied with working conditions, wages and hours, the employer
agrees that during the life of this contract, it will not make any
change in such working conditions, wages or hours which will
adversely affect the employees without first giving ten (10) days
notice to the first party [Local 2] in writing and give the first
party a hearing thereon, and an opportunity to discuss the just-
ness and fairness of such proposed change.
Local 2 was given the right to use, and later did use, the plant bulletin
board.21 The contract provided that employees on the evening shift
would be given 2 hours off on the last Wednesday of each month to
-enable them to attend Local 2 meetings." The contract, finally,'con-
' The Union later asked for this privilege but was denied it by the respondent.
ao The plant, operating on a s-shift schedule, was closed down for the hours when the
meetings were held
RIEKE METAL PRODUCTS CORPORATION 883,
-twined a provision that the new employees were to be regarded as
temporary employees for the first 60 days of their employment, and
that the respondent "would not retain in its employ any temporary
employee over the objection of" Local 2.31
In May 1941 Local 2 asked Irving Rieke for the proceeds of rentals
paid by a company operating candy-vending machines in the'plant.
Rieke replied that "so far as [he] was concerned they could have
[the concession] but they would have to take the matter up with the
company supplying the machines and the candy because [he]' had
nothing to do with it other than supplying the space to hang the
machines." 32 Thereafter, Local 2, thus empowered by the respondent,
made the necessary arrangements and has since obtained for its use
the-rentals paid for the space occupied by the machines.
2. Conclusions concerning Local 2 ,
The record clearly shows a consistent pattern of opposition by
the respondent to employee self-organization and to the Union. In
October 1940, when the employees engaged in their first concerted
act of signing a petition for a wage increase, as we have found, the
respondent immediately opposed and discouraged their efforts.
Again, in January 1941 when the Union first appeared at the plant,
the respondent sought to prevent collective activity among its, em-
ployees and to thwart the Union's organizing activities by indicating
its opposition to .the Union in the notice posted on January 16 and
thereafter by discharging and laying off employees because of their
union activities. We have further found that these unfair labor
practices provoked a strike.33
As a result of these unfair labor practices there emerged two fac-
tions among the respondent's employees; the strikers comprising union
members or sympathizers, and the non-strikers who were being shel-
tered and provided food during the strike in the respondent's plant.
In this atmosphere,' after the respondent in its advertisement of
January 18 had expressed hostility toward the Union, six supervisory
employees joined the non-strikers -for the purpose of publicly de-
nouncing the Union in the newspaper advertisement of January 20.
The participation of the supervisory employees in that denunciation
necessarily made it the act of the respondent in the eyes of its em-
38
The provisions of the contract regarding recognition , the use of the bulletin board,
the permission to certain shift employees to attend Local 2 meetings , and temporary em-
ployees, were demands which had been presented by the bargaining committee of Local 2
and which, at a meeting of members of the committee the previous night, had been
agreed upon to be presented as demands to the respondent.
32 For several years and at the time in question , the respondent had permitted the
vending-machine company to ' operate these machines in the plant and allowed the American
Legion to receive the rentals to which the respondent was entitled.
81 See section A above.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. We are of the opinion and find that by the foregoing illegal
acts, the respondent inspired, and provided the necessary impetus
for, the organization of Local 2 which followed, thereby dominating
and interfering with its formation.
The respondent and Local 2 contend that the insertion of the
advertisement by the employees on January 20 and the formation
of Local 2 were motivated by certain acts of violence by the Union
and its adherents on the picket line during the strike. In support
of this contention the respondent and Local 2 made offers of proof,
which were rejected by the Trial Examiner, to show that during the
strike the strikers on the outside of the plant committed acts of
"violence" and "lawlessness" and created an "uproar"; that the
strikers assaulted a non-striking employee and damaged the auto-
mobiles of other such employees; and that the foregoing conduct of
the strikers on the picket line "was the reason discussed generally by
employees at that time and stated by them to be the reason for their
wanting to sign some other kind of a union card other than the
C. I. 0." We have considered the materiality of such offers, 34
assuming that they would have been proved. The evidence offered
would not alter our conclusion that the respondent dominated the
formation of Local 2. While the activity of the strikers may have
been a contributing factor affecting ,the employees' choice of repre-
sentatives, that activity, itself, stemmed from, and was a foreseeable
consequence of, the respondent's unfair labor practices which caused
the strike.35 We are of the opinion and find that the employees
sought self-organization through a channel other than that offered,
34 In N L R B v Republic Steel Corp ., 107 F . ( 2d) 473, enf d as mod with respect
to work-relief provisions , 311 U S 7 , the Court stated :
We think it must be conceded , however , that some disorder is unfortunately quite
usual in any extensive and long drawn out strike . A strike is essentially a battle
waged by economic weapons Engaged in it are human beings whose feelings are
stirred to the depths . Rising passions call forth hot words Hot words lead to
blows on the picket line The transformation from economic to physical combat
by those engaged in the contest is difficult to prevent even when cool heads direct
the fight Violence of this nature-must have been in the contemplation of the
Congiess when it provided in-the Act that nothing therein should be construed
so as to interfere with or impede or diminish in any way-the right to strike
3 Since we have found above that the respondent has engaged in conduct prohibited by
the Act, testimony of employees concerning the effect or lack of effect of the respondent's
coercion on individual employees or groups of employees is immaterial . See National
Labor Relations Board v. Newport News Shipbuilding cC Dry Dock Co, 308 U. S 241. In
National Labor Relations Board v. Link -Belt Co, 311 U S 584 , 588, the Court stated,
It would indeed be a rare case whether the finders of fact could probe the precise
factors of motivation which underlay each employee ' s choice . Normally the con-
clusion that their choice was restrained by the employer 's interference must of
necessity be based on the existence of conditions and circumstances which the em-
ployer created or for which be was fairly responsible and as a result of which
it may reasonably be inferred that the employees did not have that complete and
unfettered fieedom of choice which the Act contemplates.
RIEKE METAL PRODUCTS CORPORATION 885
by the Union 38 and formed Local 2 as a direct consequence of the
respondent's interference, restraint, and coercion."
The record further shows that the respondent otherwise dominated,
assisted, and supported Local 2. It was formed in the plant with
the participation of Assistant Foremen Hefty and Bauman and with
the knowledge and apparent approval of other higher supervisory
employees. The original members were solicited at an organizational
meeting held in the plant during the strike while they were being
housed and provided meals therein by the respondent. Even after
termination of the strike, Local 2 collected dues and solicited mem-
bers in the plant with impunity, notwithstanding the posting of a
notice by the respondent prohibiting such solicitation. These cir-
cumstances clearly led the employees to believe that Local 2 bore
the respondent's mark of approval.
The circumstances under which Local 2 was accorded exclusive
recognition and the negotiation and terms of its contract also indi-
,cate the respondent's sponsorship of Local 2. In the face of the
Union's charge filed with the Board alleging Local 2 to be employer-
dominated, the respondent nevertheless contracted with it as the ex-
.clusive representative of the employees. Moreover, the contract,
which was agreed upon after one short conference between the
parties, does not appear to be the product of real collective bargain-
ing., The whole purport of the contract was to perpetuate Local 2,
and in effect to eliminate the Union. Local 2 was granted exclusive
use of the bulletin board and authority to effect the discharge of
new employees; and the respondent, agreed to shut down its plant
to permit employees to attend the monthly meetings of Local 2.
However, the employees obtained no concessions concerning existing
wages, hours, or other working conditions.
In addition, by permitting Local 2 to obtain the rentals from the
vending machines in the plant, the respondent provided Local 2 with
a supplemental source of income.38
$' See Matter of Texas Mining cC Smelting Company and International Union of Mine,
Mill it Smelter Workers , Local No. 412, 13 N L R. B. 1163 , enf'd as mod in National
Labor , Relations Board v . Texas Mining and Smelting Co, 117 F ( 2d) 443 (C C A 5).
37 See Reynolds Wire Company, a corporation and Lodge 2086, Amalgamated Association
of Iron, Steel, and Tin Workers of North America, at al 26 N L R B 662 , enf'd as
mod. in National Labor Relations Board v. Reynolds Wire Company, 121 F . (2d) 627
(C. C. A 7)
31 The respondent contends that it had "nothing to do with the candy vending machines
and had no interest in the profits from the vending machines " However, it is clear
that the respondent controlled the space occupied by those machines and authorized
Local 2 to make the necessary arrangements to obtain the rentals or profits which the
respondent could have demanded for itself . Thus, indirectly the respondent financially
assisted Local 2. See Matter of The Perfection Steel Body Company and Local 1151,
International Association of Machinists , affiliated with the A F. of L, 36 N L R . B. 851;
Matter of Wilson it Co ., Inc. and Local Union No. 25, United Packinghouse Workers of
America of P. W 0 C, 31 N L R B 440 and cases cited therein
886 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD -
We find, as did the Trial Examiner, that the respondent,, by the
foregoing acts, dominated and interfered with the formation and
administration of Local 2, and contributed financial .and other sup-
port to it, and thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act. We further find that- the respondent's collective bargain-
ing agreement with Local 2 is the fruit of the respondent's unfair
labor practices and is therefore illegal. '
C. Other allegations of the complaint
In his Intermediate Report, the Trial Examiner found that the
evidence was insufficient to sustain the allegations of the complaint
that the respondent engaged in unfair labor practices by (1) dis-
criminating against union members as to the nature of their jobs and
-working conditions; (2) threatening union members with bodily harm
"to, induce them to quit their jobs"; (3) permitting members of
Local 2 "to take time off" to act as strikebreakers in connection with
a labor dispute at another employer's plant; and (4) requesting de-
ferment under the Selective Service and Training Act of certain
members of Local 2 for the purpose of assisting Local 2. The Trial
Examiner also found that the respondent, by entering into, maintain-
ing, and enforcing the contract of February 25, 1941, did not engage
in unfair labor practices within the meaning of Section 8 (3).39
The Union filed no exception to the above findings of the Trial Ex-
aminer. We have considered the record and agree with the Trial
Examiner's findings and conclusions in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
- The activities of the respondent set forth in Section III A and
B above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in` and is engaging
in certain unfair labor practices in violation of the rights guaranteed
employees by Section 7 -of the Act, we shall order it to cease and
39 Although the contract provides that new employees could not remain in the employ
of the respondent over the objection of Local 2, the record does not show that this
provision was ever enforced
RIEKE METAL PRODUCTS CORPORATION 887
desist therefrom and take certain affirmative action designated to
effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of Local 2 and contributed finan-
cial and other support' to it. In order to effectuate the policies of
the Act and free the employees of the respondent from such domina-
tion and interference, and the effects thereof, which constitute a
continuing obstacle to the exercise by the employees of the rights
guaranteed them by the Act and render Local 2 incapable of serving
the employees'as a genuine bargaining representative, we shall order
the respondent to withdraw all recognition from Local 2 as the
representative of any of the respondent's employees for the purposes
of dealing with the respondent concerning grievances, wages, rates
of pay, hours of employment, and other conditions of employment,
and completely disestablish it as such representative. Having found
Lthht-the exclusive bargaining contract of February 25, 1941, with
Local 2 is the product of the respondent's unfair labor practices, we
shall order the respondent to cease and desist from giving effect to
the said contract as well as to any extension, renewal, modification,
or supplement thereto and to any superseding contract which may
now be in force. Nothing in this decision or in our order shall be,
taken, however, to require the respondent to vary those wages, hours,
seniority, and other such substantive features of its relations with the
employees themselves if any, which the respondent may have estab-
lished in performance of the contract, as extended, renewed, modified,
supplemented, or superseded, the order herein being issued without
prejudice to the assertion by the employees of any legal rights ac-
quired under such contract.
We have found that the respondent engaged in unfair labor prac-
tices by discharging and laying off certain employees because of their
union affiliation and activities. However, we shall not provide any
affirmative relief for these employees,40 inasmuch as these discharges
and lay-offs were expressly not litigated as unfair labor practices,
within the meaning of Section 8 (3).41
We have found that the respondent has, by varying methods,-domi-
nated and interfered with labor organizations among its employees
and engaged in other unfair labor practices, thereby interfering with,
restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act. The respondent's course of
90 After the strike all the laid - off employees were reinstated by the respondent Pursuant
to the arbitration award , set forth in footnote 9 above , six of the seven discriminatorily
discharged employees were reinstated by the respondent with back pay.
41 At the hearing counsel for the Board stated that these cases of discrimination were
not being tried as violations of Section 8 (3), but that the evidence concerning them
was being offered "only for the purpose of requesting a specific order by the Board for
the Respondent to cease and desist from such practice "
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct in this respect, by virtue both of its intensive and extensive
character, discloses a fixed purpose to defeat self-organization and
its objects. Because of the respondent's unlawful conduct and its
underlying purpose, we are convinced- that the unfair labor practices
found are persuasively related to the other unfair labor practices
proscribed and that a danger of their commission in the future is
to be anticipated from the course of the respondent's conduct in the
past." The preventive purpose of the Act will be thwarted unless
our order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent a
recurrence of urifair labor practices, and thereby minimize strife
which burdens and obstructs commerce, and thus effectuate the poli-
cies of the Act, we will order the respondent to cease and desist
from in any manner infringing the right guaranteed in Section 7
.of the Act.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION .S OF LAW
1. Steel Workers Organizing Committee Local 2304, affiliated with
the C. I. 0., and Tri-State Independent Workers Union, Local 2,
are labor organizations, within -the meaning of Section 2 (5) of
the Act.
2. By dominating and interfering with the formation and adminis-
tration of Tri-State Independent Workers Union, Local 2, and con-
tributing financial and other support to it, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent did not enforce the contract of February 25,
1941,'and thereby engage in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
41 See National Labor Relations Board V Express Publxshvng Co , 312 U S 426 ;
Bethlehem Steel Company v National Labor Relations Board , 120 F. (2tl) 641 (App.
D C.)
.RIEKE METAL PRODUCTS CORPORATION 889
Act, the National Labor Relations Board hereby orders that Rieke
Metal Products Corporation , Auburn, Indiana, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from :
(a)' Dominating or interfering with the administration of Tri-
State Independent Workers Union , Local 2, or with the formation
or administration of any other labor organization of its employees,
and from contributing financial or other support to Tri-State Inde-
pendent Workers Union , Local 2, or to any other labor organization
of its employees ;
(b) Giving effect to its contract of February 25, 1941 , with Tri-
State Independent Workers Union, Local 2, or to any extension,
renewal , modification , or supplement thereof, or to any superseding
contract which may now be in force;
(c) In any other manner interfering with , restraining , or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Tri-State Independent Work-
ers Union , Local 2, as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes , rates of pay , wages, hours of employment , or other
conditions of employment , and completely disestablish Tri-State
Independent Workers Union, Local 2, as such representative;
(b) Post immediately in conspicuous places throughout its plant
at Auburn , Indiana, and maintain for a period of not less than sixty
(60) consecutive days from the date of posting , notices to its em-
ployees stating ( 1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a), (b),
and (c ) of this Order; and ( 2) that the respondent will take the
affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has engaged in
unfair labor ' practices within the meaning of Section 8 ( 3) of the Act.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Order.