Rockwood Stove Works

National Labor Relations Board - Board Decisions

Oct 2, 1945

63 N.L.R.B. 1297 (N.L.R.B. 1945)

In the Matter of ROCKWOOD STOVE WORKS and INTERNATIONAL
MOLDERS & FOUNDRY WORKERS UNION OF NORTH AMERICA
Case No. 10-C-1598 .-Decided October 2, 1945
DECISION
AND
ORDER
On February 9, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices-
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set out in the copy of the Intermediate•
Report attached hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a supporting brief. On August 2,,
1945, the respondent and the Union participated in oral argument
before the Board in Washington, D. C.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the respondent's exceptions and brief, and the
entire record ih the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, except as hereinafter-
modified:
1. The Trial Examiner found that the employees who went on
strike on July 24, 1944, are entitled to the protection afforded by the
Act. We agree and for the reasons set forth in the Intermediate
Report and in the concurring opinion of Chairman Herzog, find
that the doctrine enunciated in the American News decision is inap-
plicable to the instant case.
2. The Trial Examiner found that by the issuance of provoked
discharges to the striking employees, as more fully set forth in the
Intermediate Report, the respondent violated Section 8 (3) of the
Act, and he recommended that the respondent be required to pay
back pay to such employees for a period beginning on July 27, 1944,
the date on which the respondent issued such discharge notices.
Unlike the Trial Examiner , we are of the opinion that the respondent
63 N. L. R. B., No. 204.
1297
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not violate Section 8 (3) of the Act by its issuance of the dis-
charge notices and that the employees are not eiitltled to back pay
dating from the time of their issue. Since the cessation of work by
reason of the walk-out was a consVduelice of a current labor dispute,
the employees who participated in the walk-out retained their status
as employees within the meaning of Section 2 (3) of the Act. The
issuance of the discharge notices had no actual effect upon the tenure
of the strikers who received them. By such notices, the respondent
intended not to effectuate a termination of the employer-euiployee
relationship, but rather, the respondent utilized the discharge slips
as a tactical step designed to coerce the employees into resuming work.
Inasmuch as the purpose and effect of the respondent's action in
threatening discharge and purporting to discharge the strikers was
to restrain them from engaging in concerted activities for their Iuutual
aid and protection, the respondent thereby niterfered wit It, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act in violation of Section 8 (1) thereof. We find
that the strike was prolonged by this conduct of the respondent and
hence from then on became an unfair labor practice st rice.
However, on July 29, 1914, the respondent received a letter, dated
July 27, 1944, in which the Union proposed that, I Ile employees return
to work. In its reply to the Union's letter of July 27, the respondent
did not specifically mention the Union's otter. Ou several occasions
thereafter, the offer was repeated, as more fully set lot (It iii the fiiter-
mediate Report; however, on no occasion was it accepted. Since the
strike was prolonged by the respondent's unfair labor practice, the
refusal to reinstate the strikers upon request, court It uted pct' Se dis-
crimination in hire and tenure of elnploytueiit and a ditcelullnatory
discharge in violation of Section 8 (3) of the Act. We reach the same
conclusion even if the strike were not regarded a5 paring been pro-
longed by the respondent's Imfatr labor pract ice. It is clear that, vlteu
the employees unconditionally offered to rettlrri to worlc, they thereby
terminated the strike. At that time, the respondent had not replaced
the strikers and jobs were available for theiu; and the respondent was
plainly prohibited from discrnninatutg I]] regard to their reinstate-
ment because they had engaged in concerted or union activities. By
thus failing to reinstate the employees wlieli thc_y offered to abandon
the strike, thereby in effect discharging them, we find that, the re-
'The offer was unqualified except for the ]e,-itnnate condition that all strikers icturn
en masse. See Matter of Diaper Corporation, -)2 N I. It Ii 1477, 1v%'d on other „iouud5,
145 F (2d) 199 (C C A 4) We find, contia'y to the Tual ECanuact, that Jolene South,
who acted on behalf of the IJmon, did not piopose to I'iisident Iloward that the amp io (es
return to work when they conferred on July 27, 1944
ROCKWOOD STOVE WORKS 1299
spondent violated Section 8 (3) of the Act.2 We also find that the
employees thus discriminated against are entitled to back pay for a
period from July 29, 1944, until the respondent's offer of reinstatement
as herein provided in our Order.
3. The respondent excepts to the Trial Examiner's recommenda-
tions as to back pay on the ground, among other things, that they do
not permit.the respondent to deduct from the sum otherwise due the
employees the amount of State unemployment compensation received
by them. We find no merit in this contention, as we do not regard
unemployment compensation as earnings -3
4. As a consequence of the respondent's unfair labor practice in
failing to reinstate the striking molders, there was no work for four
other employees at various times subsequent to July 29, 1944, because
of the fact that availability of work for such other employees was de-
pendent upon continued production of the foundry workers .4 The
Trial Examiner found, and we agree, that had the molders not been
discriminatorily denied employment and thereby discharged, there
would have been regular work available for the four other employees.
We therefore find, as did the Trial Examiner, that the termination of
their employment is attributable to the respondent's unfi}ir labor prac-
tice and constitutes a violators of Section 8 (3) of the Act. In so
finding, the Trial Examiner was of the view that it is immaterial
whether the four employees quit or were discharged because of the
unavailability of work. The respondent excepts to the Trial Exam-
iner's finding and argues that Youngblood and Harvey are not en-
titled to any relief since they had quit voluntarily. The record discloses
that the respondent discharged Harvey for lack of work and that,
while Youngblood quit, his leaving was admittedly due to lack of work
for him. In any event, we agree with the Trial Examiner's view and
find the respondent's contentions to be without merit. The respondent
also contends that Harvey is not entitled to full back pay because he
had been employed as a part-time worker during the normal school
year and full time in summer vacation periods and in view of the fact
that he returned to school in September following his release from
employment. Our back-pay remedy as to Harvey, hereinafter set
forth, should be taken to mean that the respondent is not required to
pay back pay to Harvey for any period in which he attended school
since he would not normally have earned any wages during such
2 In addition thereto, we find that the respondent further violated Section 8 ( 3) of the
Act when, on August 16 , 1944, the respondent refused to reinstate the strikers . Like the
Trial Examiner , we find that the Union had not stipulated , as a condition of its offer, that
the respondent reimburse the employees for loss of wages, and that the respondent did not
reject the Union ' s offer because the respondent in good faith believed that such a condition
had been attached to the Union 's offer.
3 See N. L. R. B . v. Marshall Field & Co., 129 IF. (2d) 169 (C. C. A. 7).
4 The four employees are : Robert Youngblood , Robert Butler , W. C. Johnson , and Fred
Harvey. -
662514-46-vol 63-83
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
periods. However, he is entitled to reimbursement for loss of any
wages that he would have earned as a part-time worker.
5. Soon after the July 24 walk-out, the respondent used the oppor-
tunity afforded by the foundry shut-down to place its plant in good
repair. To this end, it utilized the services of regular employees for
maintenance work. On August 22, 1944, the respondent directed Jack
Brogdlon, an apprentice molder who had not joined the strikers, to
paint overhead pipes in the foundry from a platform suspended
approximately 12 feet above the floor. After a short trial, he refused
,to continue such work, asserting that the work was hazardous. The
respondent informed Brogdlon that there was no other work available
and, upon his continued refusal to paint the pipes, he was discharged.-'
The Trial Examiner found that in the course of Brogdlon's normal
employment, except for the respondent's unfair labor practice in lock-
ing out the molders, he would not have been assigned to perform a
common laborer's job. From this, the Trial Examiner concluded that
Brogdlon's refusal to perform the paint work was provoked as an
incident flowing from the respondent's unfair labor practice, and that
the termination of his employment was therefore discriminatory and
in violation of Section 8 (3) of the Act. We disagree. While an
employer is accountable for all incidents which reasonably flow from
his unfair labor practices," we are not convinced that the respondent's
unlawful conduct was a substantial factor in causing Brogdlon to
refuse to work. Absent the discriminatory lock-out, the respondent
might nevertheless have required any employee to assist in mainte-
nance work, as, for example, during a slack season. Under such cir-
cumstances, a refusal to obey the order would undoubtedly be justifiable
ground for discharge. We think that Brogdlon's refusal to obey the
respondent's order was an independent factor which intervened
between the respondent's unfair labor practice and his discharge.
Upon these facts, we are of the opinion that Brogdlon was discharged
for insubordination and that the respondent did not thereby violate
the Act. We shall dismiss the complaint as to Brogdlon.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent , Rockwood Stove Works, Rockwood,
Tennessee , and its officers , agents, successors , and assigns, shall :
1. `Cease and desist from :
(a) Discouraging membership in, International Molders & Foundry
Workers Union of North America , affiliated with the American Fed-
The facts are undisputed.
e See N. L. R. B . Y. Sunshine Mininq Co ., 110 F ( 2d) 780 ( C C A. 9 ), cert. den.
312 U. S. 678 ; Clover Fork Coal Co. v. N . L. R. B., 97 F. (2d) 331 ( C. C. A. 6 ), p. 335;
and N. L. R. B. v. General Motors Corp ., 116 F. ( 2d) 306 (C. C. A. 7), pp. 309-310.
ROCKWOOD STOVE WORKS 1301
eration of Labor, by discharging, laying off, or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire and tenure of employment, or any term or condition
of their employment;
(b) Refusing to bargain collectively with International Molders &
Foundry Workers Union of North America, affiliated with the Amer-
ican Federation of Labor, as exclusive representative of all its em-
ployees, excluding office and clerical employees, watchmen, and super-
visory employees with authority to hire, promote, discharge, discipline,
and otherwise effect changes in the status of the employees or effec-
tively recommend such action ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations; to join or assist International Molders & Foundry
Workers Union of North America, affiliated with the American Feder-
ation of Labor, or any other labor organization, to bargain collectively
through repersentatives of their own choosing, and to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Molders &
Foundry Workers Union of North America, affiliated with the Amer-
ican Federation-of Labor, as the exclusive representative of all its
employees, excluding office and clerical employees, watchmen, and
supervisory employees with authority to hire, promote, discharge,
discipline, and otherwise effect changes in the status of the employees,
or effectively recommend such action, with respect to rates of pay,
wages, hours of employment, and other conditions of employment;
(b) Offer to the employees whose names are set forth in Appendix
A of this Order, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges;
(c) Make whole the employees, whose names are set forth in Appen-
dix A of this Order, for any loss of pay that they may have suffered
by reason of the respondent's discrimination against them, by pay-
ment to each of them of a sum of money equal to that which he nor-
mally would have earned as wages from the date that he was discrim-
inatorily deprived of his employment to the date of the respondent's
offer of reinstatement, less his net earnings during said period;
(d) Post at its plant at Rockwood, Tennessee, copies of the notice
attached hereto, marked Appendix A. Copies of said notice, to be
furnished by the Regional Director of the Tenth Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent discriminated in regard to the hire and tenure of
employment of Mart Murray, Jack Brogdlon, and Carl Hughes, within
the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
CHAIRMAN PAUL M. HERZOG, concurring :
I concur in the opinion of the Board, as signed by my colleague,
Mr. Houston, and make the following additional observations with
respect to the strike of July 24, 1944. I think the Trial Examiner is
right in saying that the American News doctrine (55 N. L. R. B. 1302)
does not govern this case. Here there was a spontaneous and un-
planned move by inexperienced men ; in American News there was a
stoppage following an express threat by union officials to call a strike
if the employer did not do what the law forbade him to do, namely
grant a wage increase before the War Labor Board had actedfavor-
ably upon an application filed jointly by the employer and these
very union officials.
Nor is it certain, as it was in the Indiana Desk case (58 N. L. R. B.
48), that the desire for a wage increase was the principal motive for
the Rockwood walk-out. Dissatisfaction with the condition of the
flasks, the Murray incident, and, to use the language of the men, "lack
of cooperation" by, the employer and the asserted desire to "stick
together" while organization was in the process of birth, all appear to
have played their part on the crucial day. Or so the Trial Examiner
found, and it is familiar doctrine that his reasonable findings be
followed in matters of this sort. That those findings are reasonable
is borne out by the fact that many of the molders had changed into
their street clothes before there was any discussion of a wage increase
with Howard, and that they left the premises immediately after voic-
ing approval, not disapproval, of his proposal to write the War Labor
Board urging that it expedite action on the increase previously
requested. Neither of these actions seems to me consistent with a pur-
pose to force his hand to grant an immediate raise.
MR. GERARD D . REILLY, dissenting :
The real issue in this case is the question of whether the walk-out
of July 24,1944, was a strike to compel the respondent to grant a wage
increase in violation of the President's regulations, issued pursuant to
the Wage Stabilization Act.
ROCKWOOD STOVE WORKS 1303
In the American News case,7 this Board had occasion to consider
a similar situation. In that case, unlike this one, the demand for higher
wages was made by the union recognized as the collective bargaining
representative. The demand became the subject of collective bargain-
ing between the employer and the Union, and resulted in an agreement
for higher rates. After the agreement was made, the proposed wage
increase was submitted to the War Labor Board for approval, since
under the applicable regulations an employer would have subjected
himself to heavy penalties by carrying a wage increase into effect
without prior authorization from that agency. While the application
was still pending at the War Labor Board, the Union insisted that the
employer place the new wage rates into effect immediately. He refused
to do so because of the regulations, the Union thereupon called a strike,
and the Company discharged the strikers and refused to reinstate them.
A complaint for violation of Section 8 (3), predicated upon the dis-
charges, was subsequently entertained by the Board. We held that
the strikers were not entitled to affirmative relief under the Act, saying
that any other result would be affording legal protection to an attempt
to coerce an employer into violating another Federal law, and thus
would contravene the principles laid down by the, Supreme Court in
the Southern Steamship case."
My colleagues agree that if the strikers, whose discharges in this
case are alleged to be illegal, had used their concerted strength to
achieve the same objective sought by the strikers in the American News
case, supra, that this decision would be applicable here. Consequently,
there is no disagreement among us on this fundamental question of law.
Since I am of the opinion, however, that the interpretation of the evi-
dence does not sustain the Trial Examiner's principal conclusion on
this point, I am constrained to disagree with their resolution of the
factual issue.
In order to determine properly the motivation for the July 24 walk-
out it is necessary to see what happened before, during, and after the
employees spoke to President Howard that morning. After the men
learned that Murray was quitting without a release, but before they
spoke to President Howard, the following occurred :
According to Jesse Howard, the "men began to talk that they
were going to stick with him [Murray]." Employee Sam Roberts
testified that ". . . Murray had signed a letter requesting the
union man to come into town and represent us, and we thought they
were giving Murray a dirty deal and thought we would stick with
Murray." Employee Bill Rogers' version was that "they said he
[Murray] had signed that paper with us to get an organizer in
7 55 N. L. R B. 1302.
8 Southern Steamship Co. v. N. L. R. B., 316 U. S. 31.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here to organize a Union and to stick together and we were going
to stick with him." Employee Morgan Fuller testified that he told
the men, "Let's stick with him." Fuller also testified that while
the men were standing around discussing the matter, they said,
"... we would go up and see Mr. Harry [Pres. Howard] and see
if he had got the raise for us yet." Thereafter nearly all the mold-
ers changed from their work clothing to their street clothes. and
went in a body to see President Howard.
Five witnesses testified as to what happened during this conference.
There is general agreement that the men did not appear as a well-
disciplined group with a leader; on the contrary, the record shows that
there was neither unanimity in their demands nor a spokesman. Presi-
dent Howard's testimony regarding the meeting is as follows :
One of them [the men] said "we want a raise." I then explained
again that their wages and our wages and prices and all were
frozen, that we were operating strictly under Government direc-
tions, and that we were powerless to increase them without first
obtaining permission from the proper authorities, that I agreed
that they were entitled to an increase in pay and was disappointed
that we had not received a definite decision and approval of our in-
centive bonus plan, which had been filed for some time .9
Jesse Howard testified that the very first thing said was by employee
Kilgore, who inquired whether President Howard had heard anything
about the raise and stated that the men weren't going to work until they
got a raise. Others in the group, according to Jesse Howard, spoke up
about wanting better working conditions and "cooperation from the
management." Employee Morgan Fuller testified that there was a
request made for payment every week instead of every second week, as
was the respondent's practice. Also, "They were talking about some
wage increases." Bill Rogers testified that he joined the meeting after
it had begun and when he arrived the men "were discussing a raise,
about that incentive bonus plan." Sam Roberts testified that it was he
who asked President Howard for weekly pay and complained about
the lack of management cooperation. He also testified, when asked
whether there was any discussion of Murray's case, "No, sir, we did
not . . . We got into a discussion of the raise and working conditions
and reckon we just forgot Murray." All witnesses agreed that the
Murray case was not mentioned during this discussion. Finally, Presi-
dent Howard announced that he would write a letter to the War Labor
Board requesting it to speed action on the bonus plan, provided, how-
ever, that the men wanted him to write such a letter. Upon polling
9 Howard had reference to the incentive bonus plan which the respondent had submitted
to the War Labor Board for approval 3 months earlier.
ROCKWOOD STOVE WORKS 1305
the men no objection was heard and Howard said that he would write
the letter immediately. Thereupon, the conference terminated.
After the conference, the men walked back into the plant but instead
of returning to work they left the premises. The evidence is not clear
as to exactly why the men walked out at that point. Thus, although
Fuller and Roberts testified that there was no agreement to strike unless
a raise was granted nevertheless, according to Fuller, as the men
walked out of the conference a few of them said, and he agreed with
the sentiment, "... just don't work no more until we get the raise."
In American News, the employees intended to coerce the employer
into granting the wage increase illegally, whereas in the instant case it
does not appear that it was the intent and purpose of those engaging
in the strike to require the respondent to grant an increase illegally.
The Trial Examiner finds it highly significant that the respondent
was less than ingenuous vis-a-vis the employees by its failure to explain
its incentive plan thoroughly to its employees and by its dilatory tactics
in bringing the plan to fruition. While I agree that the respondent's
conduct merits severe censure, I am unable to attach much significance
to it in the absence of a finding that it constitutes an unfair labor prac-
tice. The fact that there was no agreement between the respondent and
the Union with respect to the incentive plan was not due to an impasse
in negotiations but because the respondent never had consulted the
Union on this matter. Indeed, there was no union in existence at the
time the respondent submitted its plan to the War Labor Board. Nor
had the Union requested bargaining at the time of the -walk-out.
In reaching the conclusion that the instant case is distinguish-
able from American News, the Trial Examiner relies upon Matter
of Indiana Desk Company.1° In that case the Board said, in dis-
tinguishing American News, "in essence, the instant case (Indiana
Desk) involves a situation in which after reaching an impasse in
bargaining negotiations concerning wages, employees have resorted
to economic pressure to effect an agreement with their employer."
The Circuit Court of Appeals, however, rejected the attempted dis-
tinction and in its decision said,ll "We think that the Board's rea-
soning in the [American] News cane is sound and that it is equally
applicable to the instant situation . . . we are unable to discern
what difference it makes whether the pressure placed upon .the em-
ployer is exerted before he agrees to an increase in wages or after-
wards. In one instance as much as in the other, his compliance with
the demands of the employees, without the authority of the War
Labor Board, is a violation of the statute."
But irrespective of whether the distinction made by the Board
in Indiana Desk was sound, it cannot apply to the present case since
'°58N.L.R.B.48
'IN. L. R. B v. Indiana Desk Company (C. C. A. 6), June 16,1945 , 16 L. R. R 612.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agreement between the respondent and its employees was reached
at the point where no objections were raised by the employees to
President Howard's proposal to write a letter to the War Labor
Board asking for speedy approval of its incentive plan. Therefore,
the distinction drawn by the Trial Examiner between the instant
case and Annerqean News falls.
The real purpose and design of the strike, according to the Trial
Examiner, was the desire of the men to hold their ranks together
until union organization could be perfected. In reaching this con-
clusion the Trial Examiner relies upon the testimony of a Board
witness who testified that "We were all going to stay out until we
get the Union organized." Equally reliable, however, is the testimony
of another Board witness who stated "We will go and see Howard
and not go back to work until they get an increase in pay." What
other interpretation can be placed upon the act of the employees
in striking after Howard had agreed to do their bidding? 12 More-
over, this action was taken in the face of the repeated statement by
President Howard that it was illegal for him to grant a wage in-
crease without War Labor Board approval13 It is not at all clear
how refraining from work could in any way have aided the em-
ployees' efforts in organizing, for, at the point when they walked
out, a majority had already signed the union petition and there was
nothing more for, them to do except await the arrival of the union
organizer. In addition, at the time of the walk-out the men did not
tell the respondent why they were refusing to work 14 Under these
circumstances, a finding that the real purpose and design of the strike
was the desire of the men to secure a wage increase seems almost
inescapable. And, regardless of the intent of the strikers,Y6 the net
effect on the respondent was to apply pressure upon it to grant an
immediate increase.
la William Rogers testified that "We wanted him to kinda rush the War Labor Board up
to see if we couldn't get a raise." Howard promised to write a letter to WLB and did
write one immediately after the meeting.
31 July 24 was the fourth conference at which Howard had told his employees that a
wage increase was contingent upon WLB approval.
14 In connection with their applicationlfor unemployment compensation , 11 strikers
signed a statement which was read into the record. The statement says, in part, "On July
24, 1944, about 10 to 12 employees of the Rockwood Stove Works went to see the President
of the Company and talked over with him the possibility of a raise and working conditions.
He said he could not give a raise unless it was approved by the War Labor Board . He said
he had written them and would write again. He did not give us any encouragement at all
about anything. Mr. Charles B. Kilgore was spokesman and said the men would not work
if they could not get a raise but this statement had not been authorized by any group of
workers. The men mere discouraged and most of them went home. There was no agree-
ment among the employees to walk out or not to walk out. Some of the men went back to
work the next day. Some went back the second day and were laid off."
15 Whether or not the strikers actually intended to force the respondent to violate the
law is immaterial since they must be presumed to have intended the normal consequences
of their behavior. See Cramer v. United States, 65 S. Ct 918, in which the Supreme Court
said, "The law of treason , like the law of lesser crimes , assumes every man to intend the
natural consequences which one standing in his circumstances and possessing his knowledge
would reasonably expect to result from his acts."
ROCKWOOD STOVE WORKS
INTERMEDIATE REPORT
1307
Mr. T. Lowry Whittaker, for the Board.
Mr. T. A. Wright, Jr., of Knoxville, Tenn, and Mr. H C. Howard, of Rockwood,
Tenn., for the respondent.
Mr. Draper Doyal, of Cincinnati, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by International Molders & Foundry
Workers Union of North America, herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the Tenth
Region (Atlanta, Georgia), issued its complaint dated November 8, 1944, against
Rockwood Stove Works, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notice of hearing were duly served upon the
respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended,
alleged in substance that the respondent: (1) on July 27 and 29, 1944, and
thereafter, in violation of Section 8 (5) of the Act, refused to bargain with the
Union although it had been designated by a majority of employees in an appro-
priate unit; (2) in violation of Section 8 (3) of the Act, discharged, laid off,
and/or refused to provide work for 26 named employees, because of union and
concerted activities of certain of Its employees; (3) by the foregoing conduct,
and by statements of its officers and supervisors discouraging union and con-
certed activities, interfered with, restrained and coerced its employees in viola-
tion of Section 8 (1) of the Act.
In its duly filed answer, respondent, while admitting that it discharged
certain of the employees named in the Board's complaint, denied that it had
terminated the employment of certain others, or had terminated the employ-
ment of any employee because of union or concerted activities,' or that it had
through its officers, supervisors or agents made statements violative of the Act.
It admitted that it had refused to bargain with the Union and asserted:
Respondent further states that it does not intend to deal with any repre-
sentative for the purpose of collective bargaining for its employees until
said representative has been designated by the National Labor Relations
Board as the exclusive representative of all the employees of an appropriate
unit in respondent's employ.
' The Board in its complaint as amended at the hearing , alleges that the respondent
discriminatorily terminated the employment of the following employees : Claude Crabtree,
Harry Fuller, Morgan Fuller, Thomas A. Fuller, Charlie Gaddis, Bob Hickey, Jesse Howard,
Nathan Howard, Bruce Kilgore, Mart Murray, Tom Nash, George Pelfry, Henry Polston,
Sam Roberts, William Rogers , Ernest Russell , Vinet Russell , Milo Schultz , Johnie Smith,
Cornell Hickey, Jack Brogdlon, Fred Harvey,, Carl Hughes, Robert Youngblood, Robert
Butler, and W. C. Johnson . Respondent in its answer admitted that on or about July 27,
1944, it discharged all of the above named employees except. Jack Brogdlon, Fred Harvey,
Carl Hughes , Robert Youngblood , Robert Butler , and W. C. Johnson , and asserts as affirma-
tive defense that it issued the said discharges "for just and ample cause." It further
asserts that Mart Murray , Jack Brogdlon , Carl Hughes , and Robert Youngblood volun-
tarily quit on the following dates, respectively : July 21, August 22, August 22, and August
26, 1944, and that it gave releases to W. C. Johnson, Fred Harvey, and Robert Butler.
It denies that It refused or failed to provide work for any of the afore -mentioned employees
because of the union or concerted activities of its employees.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held in Kingston, Tennessee, from Novem-
ber 20, 1944, through December 5, 1944, before the undersigned, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. The Board, the respond-
ent, and the Union were represented and participated in the" hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the close of the
Board's case and again upon the completion of the taking of testimony,
respondent moved to dismiss the complaint in its entirety, and, in the alterna-
tive, certain allegations contained therein. Ruling was reserved thereon at the
close of the hearing and the motion is disposed of in the body of the Report.
At the close of the hearing a motion by Board's counsel to conform the plead-
ings to the proof respecting formal matters was granted by the undersigned
without objection. The parties were advised that they might argue before and
file briefs with the undersigned. All parties waived oral argument. Briefs
were filed with the undersigned by the Board and the respondent.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS of FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Rockwood Stove Works, is a Tennessee corporation with its
principal office and place of business at Rockwood, Tennessee, where it is en.
gaged in the manufacture and distribution of wood and coal stoves. For a 12-
month period preceding the hearing, the respondent purchased products of iron,
steel and copper valued at in excess of $50,000, of which approximately 80 per-
cent in value "originated" at points outside the State of Tennessee. During the
same period respondent manufactured, sold and shipped cook stoves, ranges,
heaters and laundry stoves of a value in excess of $50,000, of which approxi-
mately 80 percent in value was shipped to points outside the State of Tennessee.
Upon the basis of the foregoing findings of fact; based on a stipulation entered
into by respondent and the Board, the undersigned finds that respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Molders & Foundry Workers Union of North America, is a labor
organization affiliated with the American Federation of Labor, admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRAACrICES
A. Chronology
1. Background
Respondent's stove manufacturing plant is situated at Rockwood, Tennessee, a
predominantly rural community of some several thousand inhabitants. Nearby
is an engineering project of a military nature which embraces hundreds of acres
of land and employs many thousands of people. In the pre-war period, respond-
ent employed normally about 150 persons. Due to Government restriction of
civilian output, since Pearl Harbor, respondent's production has been substan-
tially reduced and it has been required to lay off or give releases to some 50 per-
cent of its normal prewar quota of personnel.
ROCKWOOD STOVE WORKS 1309
Respondent's production is dependent on its molder personnel who make the
castings of stove parts which when assembled constitute respondent's sole manu-
factured product, and the issues involved herein stem primarily from this group
of employees During the period in question, January 1, 1944 to July 24, 1944, the
respondent employed a total of approximately 20 molders.
Admittedly, from January 1, 1944, there has been much dissatisfaction among
the molders with their wage rates and general working conditions and this has,
in some degree, been reflected in lessened production. Respondent attributes this
dissatisfaction chiefly to the fact that the adjacent engineering project, referred
to above, pays a higher scale of wages than the maximum rates respondent is
permitted to pay under existing wage stabilization legislation and regulations.
Respondent's president, Harry C. Howard, admitted that the employees were
entitled to a wage increase, but since respondent was paying the maximum rates
allowed under the Government's wage freeze orders, a wage increase could be
granted only on approval by the National War Labor Board, herein called NWLB.
Furthermore, since respondent's business is classified as essential civilian indus-
try, the employees have since the spring of 1944 been "frozen" to their jobs and
are able to procure equivalent employment elsewhere only if granted referrals by
the United States Employment Service, herein called USES. Such referrals, in
turn, normally are granted by the USES only if the employee has obtained a
release or statement of availability from his employer.
In addition to the matter of wages and the factors mentioned above, the molders
were dissatisfied with various working conditions, such as the condition of the
flasks or boxes in which the castings were made, and the preparation of the sand
used in making the castings.' The molders were paid on a piece-work basis, with
a guaranteed minimum hourly wage. Time spent by them in repair of flasks or
In the preparation of improperly conditioned sand, diminished their total earnings,
since their total piece-work production would thereby be lessened. In addition,
if a defective casting resulted on account of the flasks or sand, the molder received
no compensation for the defective article. Admittedly, it was no part of
the'molder's job function to repair flasks or 'condition the sand, and the molder
received no compensation for time spent in such work. The molders lodged fre-
quent protests with management concerning the condition of the flasks and the
sand' It further appears that on at least several occasions, the dissatisfaction
among the molders was so great that groups of them would leave their jobs before
the close of working hours and go home.' Respondent admits that because of the
2 The molder makes the imprint of the pattern In sand , and later pours the molten
metal into the imprint to make the casting. If the sand is not properly "cut" (pulverized),
the lumps have to be removed by the molder ; if the sand Is too,dry , the mold may fall in ;
if the sand is too wet , it may cause a "run-out" or "blow-out," the molten metal pushing
from the sides of the mold , thus causing a defective casting. The mold is formed In a
Wooden box called a flask . If the flasks are loose or warped or burnt, they do not give
the required and proper support, and a defective casting may result.
8 Foundry Superintendent Ed Roberts admitted that in 1944 there was more than normal
dissatisfaction among molders with the condition of their sand. President Howard testi-
fied that respondent had difficulty in keeping competent "shakeout" men for preparing the
sand, and as early as December 3, 1943, ordered a mechanical sand cutter . This was
Installed on or about May 15, 1944 , but apparently did not entirely solve the difficulty,
Since the molders continued to protest the condition of the molding sand. Sam Roberts,
a molder, testified that on an occasion on or about July 15, he lost an hour ' s time because
of improperly prepared sand, and that he requested and was refused payment for the time
thus lost He then asked for a release and was refused Assistant Foundry Superin-
tendent Andrew Harvey, Rhile testifying that time lost by the molders in repair of their
respective flasks was negligible , admitted that prior to 1944, respondent employed a
carpenter whose duty it was to keep the flasks In repair, and since his death in January
1944, has been unable to replace him.
4 Several witnesses testified that on occasion , one or another of the molders would shout
"Let's go home!" and regardless of working hours, groups of molders would leave the plant.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difficulty of obtaining replacements, it took no disciplinary action in this matter
prior to May 11, 1944.
2. The May 11 walkout
On May 11, 1944, some 26 employees, including most or all of the molders,
left their jobs and walked out of the plant. It appears that they served no notice
on respondent of their intention of leaving their jobs on that day.' On May 12,
respondent addressed identical letters to the employees, advising them that on
May 15 respondent was "planning" to operate the molding department and request-
ing them to be work at the usual hour. The letter further advised them that
there would be a meeting on the afternoon of May 15, after the molders had
"finished pouring off," for a, discussion of the status of respondent's application
for a wage increase. Respondent's application, made on April 26, 1944, will be
discussed hereinafter. Respondent's letter of May 12 did not result in enough
molders reporting for work to enable it to operate the foundry.
On May 19, respondent posted a notice in its plant stating that it intended to
operate all departments on the following Monday, May 22, and requesting all
employees to report for work on that date, at their usual hour. Fifteen of the
employees who had left their jobs on May 11, reported for work on May 22.
On May 22, respondent addressed identical letters to 8 molders, who appar-
ently had not yet reported back to work, advising them that if they did not
report at the usual hour on May 24, they would be issued "provoked" discharges.
The effect of a provoked discharge, if recognized by the USES, is that the dis-
charged employee is denied a job release and that the USES will not give a refer-
ral for a period of 60 days. The employee is thus denied employment for 60
days in all industries where a referral is required for employment. Pursuant
to the letters of May 22, respondent issued provoked discharges to 2 employees.
It is not alleged that these discharges were discriminatory but they are cited
by the Board as additional cause for the dissatisfaction existing among em-
ployees. The respondent continued in production until July 24, when a group
of some 20 employees, including most or all of the molders who had reported for
work that day, again left their jobs'and walked out of the plant.
3. The July 24 walkout
On or about July 18, 25 employees, including most of the molders, signed, or
authorized their names to be attached to, a letter addressed to a representative
of the Union. The letter bore the following text :
We the employees of the Rockwood Stove Foundry have come to an agree-
ment that we should have a Union an [sic] would like to have and [sic]
organizer to come an [sic] see us, an [sic] would like to know the day he
can come an [sic] if he came let us know.
Admittedly, most of the names were contained on a sheet separate from the
sheet bearing the text of the letter, and the letter itself had not been written at
the time most of the names were placed on the accompanying sheet. However,
on the basis of the entire testimony, which is to the same general effect, the
undersigned is convinced and finds that the employees whose names appear
attached to the letter, were advised and understood that in signing, or in
authorizing their names to be placed on, the petition, they were signifying that
5 Sam Roberts , a molder , testified concerning the May 11 walkout : ". . . The men
just went home-they didn't say. They just walked out and went home. They had been
talking among themselves , though, about the raise."
ROCKWOOD STOVE WORKS 1311
they desired union organization.' The letter was signed by Jesse Howard, a
molder, and was mailed to a representative of the Union at Chattanooga, Ten-
nessee, on the same date that the names attached thereto were obtained. It
appears that the matter was discussed and the names obtained in respondent's
plant, either during work or the lunch hour. While there had been discussion
of organization among the employees prior to July 18, this letter or petition
represents the first concrete organizational measure taken by the employees in
1944.'
On or about July 21, Mart Murray, who performed various job functions relat-
ing to the foundry though not himself a molder, was advised by another employee,
William (Bill) Rogers, that Assistant Foundry Superintendent Andrew Harvey
had stated that Murray was responsible for the "trouble" among the molders. At
noon that same day, Murray, in the presence of several other employees, asked
Harvey what were the grounds for his accusation. Harvey replied that he was
not the only one of the opinion that Murray was causing trouble, and that Murray
did not have enough work and therefore had "too much time to talk to other men
there." Murray testified that he made up his mind then that he would not
continue to work for respondent if Harvey was his "boss."
On July 24, Murray came to the plant with his lunch at the usual hour, but did
not change to work clothes. When questioned by other employees, he stated that
he would not work if Harvey was his foreman. Murray then saw Superintendent
Roberts, and later, accompanied by Roberts, went to President Howard's office.'
Murray told Howard that Harvey had falsely accused him of causing trouble
among the molders, and that he would not work if Harvey was his "boss." Ac-
cording to Murray, Howard stated that he would "investigate" the matter but did
not say whether or not Murray was to consider Harvey his supervisor. Howard
testified that he urged Murray not to quit but to return to his job. On leaving
Howard's office, Murray went back into the molding room where he got his
"belongings" and left the plant. He testified that he quit his job.9
When Murray came back into the foundry from Howard's office, he told the
employees that the "verdict" was "sixty days or go to the coal mines." By this
6 Several employees who signed the petition testified to this .effect. Robert Lee Hickey
testified relative to his understanding of the petition, "Well, the fellow brought it to me,
wanted to know if I would like to have more money ; wanted me to sign up with the union.
Of course I would like to always have more money, you know. Of course I signed the
paper." Jesse Howard testified : "They was wanting to get organized and that was the
reason they signed this paper."
7 Sam Roberts testified that on or about July 5, during the lunch hour there was some talk
among the employees that after the war the management would be able to hire new men and
could then get rid of its present employees. Robert asserted that this would not happen
if the employees "would all organize and stick together." According to Roberts, Andrew
Harvey, assistant foundry superintendent, replied that he "didn't know about that .
it had been tried before and failed." Roberts understood that Harvey had reference to
organizational efforts in 1937 In which Harvey, then a non-supervisory employee, had
taken a leading role. In 1937, a group of employees paid initiation fees in the Union, but
organizational efforts came to naught. There is also evidence of some slight organizational-
activity in 1942 or 1943 by a union affiliated with the Congress of Industrial Organizations.
8 Howard testified that Murray came to his office with respect to the matter of Harvey's
accusation, on both July 21 and July 24. The undersigned is convinced and finds that
Murray, accompanied by Roberts, first saw Howard with reference to the matter in
Howard's office on July 24.
9 On cross-examination, Murray testified that he quit on July 21. He obviously meant
that July 21 was the last day that he worked. Since he reported to the plant on July 24
at his usual starting time, it is clear that he intended to continue to work if he could get
a satisfactory answer as to Harvey's supervisory authority over him. Howard testified that
he considered that Murray severed his employment on July 24, and the undersigned so finds.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he meant that he had been refused a job release and therefore could not obtain a
referral from the USES for a period of 60 days and could obtain work during that
period only in-the coal mines where referrals were not required. It is clear that
the employees so understood him. On hearing Murray, a group of molders who
had already started to work, changed back to their street clothes. 10 Sam Roberts
testified concerning this action: ". . . Mart Murray had signed a letter
requesting the Union man to come into town and represent us, and we thought
they were giving Murray a dirty deal and thought we would stick with him."
William Rogers testified similarly: "They said he [Murray] had signed that
paper with us to get an organizer in here to organize a union and to stick together
and we were going to stick with Murray." Murray testified concerning the inci-
dent that he urged the men "to go ahead and work if they wanted to and not to do
anything" on his "account," that he "would get by." Murray then left the plant
alone. The molders who had changed to their street clothes, and other employees
who had joined them, did not thereafter return to their jobs but went in a body
through the plant to Howard's office.
They met Howard in the warehouse outside his office and there followed a
general discussion of wages and working conditions. Although the employees
had been prompted in leaving their jobs on account of the Murray incident,
no mention was made of Murray in the discussion which followed with Howard.
It appears that as soon as the employees had met with Howard, one of them
raised the matter of a wage increase, and the Murray incident was "over-
looked." 11 Howard explained that he had filed an application for a wage in-
centive or bonus plan, and told the employees that if they would vote for him
to write to the NWLB in an effort to expedite the action he would do so. A vote
was taken with the result that the employees voted unanimously for him to
write the letter.13 Several complaints were lodged with Howard during the
discussion. One of the employees requested that wages be paid weekly instead
of every other week as was then the practice, and Howard replied that this
would place too great a burden on the clerical -staff. Roberts, and perhaps
others, complained about the condition of the sand and lack of cooperation of
the management 1$ At the conclusion of the discussion, the employees went back
through the plant to the foundry but did not return to their jobs. A group of
approximately 20 then left the plant, thereby causing a virtually complete stop-
page of production.
B. The issue of the July 24 walkout
The respondent contends that the 20 employees involved in the July 24 walk-
out lost their employee status on that date, and respondent's subsequent dealings
with the Union appear to have been predicated on this theory. Attention is
herefore directed at the outset to this issue.
10 It appears that some of the molders may have seen Murray outside the plant prior to
the latter's visit to Howard's office, and decided then that they would walk out unless
Murray received a satisfactory answer to his complaint.
11 Same Roberts testified : "We got into a discussion of the raise and working conditions
and reckon we just forgot Murray."
12 Howard wrote the letter and had it posted in the plant after the employees had walked
out.
13 Roberts testified that he complained of lack of cooperation . "I worked two or three
hours a day for what I would make, and spend the other time on account of the sand being
dry and boxes out of shape, having to straighten the boxes up to make the casting in."
William Rogers testified that during the discussion with Howard, Roberts said : "We ask for
a pay day once a week, the sand is dry, and it don't seem that we get any cooperation
out of the management whatever."
ROCKWOOD STOVE WORKS
1. Alleged unfair labor practice strike
1313
The Board asserts that the walkout of July 24 was caused by respondent's
unfair labor practices, its theory apparently being that respondent discriminated
against Mart Murray because of his union activities thus provoking the walkout.
The undersigned finds no merit in this contention. There is no evidence that
Murray engaged in any union activity further than that he authorized his name
to be placed on the petition of July 18. While the petition was circulated and
signed in the plant, there is no evidence that any supervisory employee or rep-
resentative of management, other than Sam Hicks whose payroll classification
is "foreman," observed its circulation or had any knowledge of its content.
Hicks was himself asked to sign the petition but on the basis of the entire testi-
mony, the undersigned is convinced that his supervisory functions were so minor
and limited in scope that it would be unreasonable to attribute his knowledge
of the petition to the respondent" Aside from Hicks, respondent had only
two supervisory employees : Ed Roberts and Andrew Harvey, foundry superin-
tendent and assistant superintendent, respectively. Both denied all knowledge
of the petition and, in the absence of substantial evidence to the contrary, the
undersigned credits their denials 15
Murray's own testimony relative to his difficulty with Harvey affords little
basis for a finding that Harvey when accusing him of causing trouble among
the molders, had reference to union activities. Murray, when asked what his
understanding of the "trouble" referred to by Harvey, testified: "Well, they had
been a-quitting and walking out and going home a few times and saying there
wasn't none satisfied They was trying to get more money for their work, they
claim, and they wasn't satisfied with what they was getting." Asked by re-
spondent's counsel, "Was there any talk about unions?" Murray testified,
"There was very little that I heard talked about it, very little." 19 Harvey denied
14 Although required to reduce its personnel and production by Government regulations,
respondent maintained its pay roll classifications . Hicks while classified as foreman of
stove mounters, a department which formerly had more than twice its present personnel,
actually had no supervisory functions other than to relay work assignments to the stove
mounters from Superintendent Roberts, and to assist and direct in the mounting of the
stoves. He had no authority to hire, discharge, reprimand, or change the status of the
3 or 4 mounters who comprised the department during the period in question, and while
he would be expected to report on the progress of the work and conduct of the mounters
to his superior, he did not make any report concerning the petition to his superior or any
representative of management.
11 The Board contends that knowledge is properly inferred from the fact that the petition
was circulated In the plant The plant, however, is of substantial size and has several
departments which are shut off from each other by walls or partitions There is sonie,
but by no means conclusive evidence to the effect that Harvey was in the foundry at
the time the petition was being circulated, but no evidence that he was shown the petition
or actually observed its circulation.
11 Asked on cross -examination if he bad ' ever heard Harvey speak against unions, Murray
testified : ".. . he talked all the time in favor of it," and told the molders that was the
way to get a wage increase. Murray further testified that when it came to the "point"
that the employees were actually organizing, Harvey tried to "ease it off" on him. Later,
when asked : "Did he accuse you of having talked about the Union or not? Murray testified,
"Well, I don't know positive that he did," but that Bill Rogers had told him that Harvey
had. Rogers, however, testified that Murray was talking to Sam Roberts during working
hours and that Harvey remarked that he thought Murray was "causing all of this trouble
here." Rogers admitted that he had started the conversation with Harvey by asking "was
they going to get the trouble settled or something about the trouble," and that he was
referring to the May walkout. There is nothing in his testimony concerning his conversa-
tion with Harvey, or the conversation which Harvey later had with Murray, which
Rogers overheard to the effect that unions were mentioned or referred to implicitly or
otherwise . Johnie Smith testified that he overheard the conversation between Murray
and Harvey. According to him, Murray said that he had heard that Harvey had accused
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that unions were mentioned in his conversation with Murray on July 21, or that
he had knowledge or suspicion that Murray had engaged in union activities. In
view of the entire testimony the undersigned credits his denial.
Assuming arguendo, however, that Harvey believed that Murray was talking to
the molders about organizing and had that in mind when he referred to the
"trouble" that Murray was causing, he administered no more than a mild repri-
mand which could not reasonably be held to have provoked discriminatorily the
severance of Murray's employment. In the opinion of the undersigned, Murray's
quitting his job on July 24 was the act of a disgruntled employee, nowise related
to concerted or union activities, and the undersigned so finds 14
2. Concerted activity
It is respondent's position that the walkout of July 24 was merely a matter of
individual employees quitting their jobs. - The undersigned is unable to agree,
except in the case of Mart Murray, discussed supra. The petition of July 18 repre-
sented a concerted effort on the part of employees to initiate union organization.
On learning that Murray, whose name was attached to the petition, was quitting in
protest of what he considered unfair treatment accorded him by respondent," cer-
tain employees who had placed their names on the petition, left their jobs and
changed from work to street clothes. Respondent's denial of a job release which
had the effect of preventing Murray from receiving a referral for a period of 60
days, doubtless was an element in the employees' disaffection, but primarily the
employees appear to have been moved by a desire to keep their organizing move-
ment intact. There were doubtless other motivations.18
It was the credible testimony of several of the employees participating in the
walkout that from having attached their signatures to the July 1S petition, they
him of trying to get the men to organize and that Harvey replied that he was not
the only one who thought Murray was trying to get them to join the Union. Smith's testi-
mony is in this respect in conflict with the testimony of Murray, Harvey, and others who
testified relative to the conversation, and is not credited.
17Murray did not join in the May 11 walkout, at no time affiliated with the Union, does
not appear to have participated in any of its activities subsequent to July 24, and in
September asked Howard's advice about attending a union meeting, stating that he did
not want to "hurt" either the company or those who had walked out. Murray testified
that he did not know what occurred in the conference between Howard and the molders on
July 24, because he "left before they went into the office."
"'Morgan Fuller testified that when the men walked out, some of them said, "Let's not
work no more until we get the raise," and that he agreed to this. Questioned if he thought
Howard was doing all lie could to get a wage increase, Fuller testified : "I don't know. It
was taking awful long about it . . He also testified, "Before going to see Howard they
were talking about a wage increase and said : 'We will go up and see Howard and not go
back to work until they get an increase in pay.' " However, when questioned, "Did all of
the men, all of the employees that walked off ever get together in a group and agree among
themselves to stay out until they got a raise?" he testified, "Not that I know of" At
another point, he testified with reference to Murray, "Well, he signed that card with us,
that letter, and he was going to stick to us so we NN as going to stick to him, the way I
figure it, and if he didn't work, we didn't work " Jesse Howard testified that Bruce
Kilgore, a molder, told Howard that the employees "weren't going to work" until they got
a raise. He further testified, however, that prior to seeing Howard, there was no dis-
cussion of wages and "that wasn't what we went for. * * * we come out on account
of Mr Murray." William Rogers testified'that there was no agreement to strike unless a
wage-increase was granted, that he knew it was illegal for respondent to grant an increase
without Government approval, but "We wanted him to kinda rush the War Labor Board
up to see if we couldn't get a raise." Sam Roberts also testified that there was no dis-
cussion of a strike in the event of respondent's refusal to grant a wage increase, and that
he heard no employee state that he 'could not return to work until a wage increase was
granted. He testified, "I didn't want him [Howard] to grant a raise without the proper
authority," and that he knew that an increase could not be granted without Government
approval.
0
ROCKWOOD STOVE WORKS 1315
felt they should "stick together" and therefore left their jobs upon learning.of
the treatment accorded Murray. These employees, joined by others, went in a
body to Howard's office . It is clear that there was no spokesman for the group,
no organized program or demand was presented to management, and the discus-
sion which followed was a "free for all ." After leaving Howard , the employees
went back into the plant but did not return to their jobs. They then left the
plant in a group or groups . The molders did not take their tools with them,
thus signifying that they did not intend to quit.
While motivating causes for the walkout were several and doubtless differed
among individuals, this is true of almost any strike action. There can be little
doubt that the circumstances under which Murray's employment was terminated,
initiated the movement, and that the petition of July 18 was a factor binding
the employees to joint action, since of those who participated in the walkout, it
appears that all but three had attached their names to the petition.
In view of the foregoing and the entire circumstances of the walkout as dis-
closed by the record, the undersigned finds that it was of the nature of an eco-
nomic strike and constituted concerted activity within the meaning of the Act,
3. Alleged application of the doctrine of the American News case I
Assuming that the July 24 walkout constituted concerted activity, respondent
-argues further that since the purpose of the strike was to require respondent to
grant an illegal wage increase, the employees by application of the Board's policy
enunciated in the American News case, were deprived of employee status as of
the date of the walkout.
As previously stated, President Howard admitted that the employees were,
in his opinion, entitled to a wage increase. Superintendent Roberts testified:
"I heard the men talking about a raise just about from January 1, 1944 on up."
No application with reference to a wage increase was filed by respondent, how-
ever, until April 20, 1944.
As early as Octobbr 14, 1943, respondent made inquiry of the Wage and Hour
and Public Contracts Division of the United States Department of Labor, con-
cerning the wage stabilization program, and was then advised of methods of
procedure in filing applications for a wage increase.
On January 12, 1944, Howard wrote to the Managing Director of the Institute,
of Cooking & Heating Appliance Manufacturers, of which respondent was a
member, stating, inter ilia : "It is my honest opinion we should be permitted to
increase our employees at least 15% -and increase our ceiling prices sufficient to
compensate for this and to cover our costs increase since the freeze of 1941."
[Italics supplied.]
On April 13, 1944, respondent again addressed the -Managing Director of the
Institute, stating : "We are experiencing considerable dissatisfaction in our mold-
ing department owing to the fact that we are unable to increase our wages."
Respondent in this letter then, advanced the following plan:
It occurred to me that as an incentive or bonus, it would be permissible
for us to offer our molders a 1001o increase in pay if they as a group would
increase their molding production at least 1bo%o. If they do this, this auto-
matically increases our plant production 10% and the same 10% of increase
as an Incentive could be offered to our other employees [Italics supplied ]
Under date of April 15, the Institute replied with the suggestion that respondent
file an application for its wage incentive or bonus plan with the appropriate
Government agencies.
w 55 N. L. R B. 1302.
662514-46-vol. 63-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 17, respondent for the first time entered a request for the appro-
priate forms, and these were supplied under date of April 19, with instructions
for their use and filing. As previously stated, the application was filed on
April 26, but apparently was accompanied by insufficient data, since on May 11
respondent filed additional data required for the completion of its wage appli-
cation. On May 16, respondent inquired of the Wage and our Division's local
office at Knoxville, Tennessee, if in event its application of April 26 was dis-
approved, there was "any other possible way" that respondent could get an
increase for its employees. The April 26 application was still pending on the
date of the July 24 walkout. It was approved by the regional office of the
NWLB on the following day, and respondent received notice of its approval on
July 29, 1944.
The wage incentive or bonus plan sought in respondent's application of April
26 provided for no basic increase in hourly or piece work rates but was based
solely on increased production. Only if the molders as a group averaged 10
percent above the standard set of 17.81 pounds of good castings per man-hour,20
would they receive any wage increase benefit, and the stove mounters and other
workers in the plant would depend on the production of the molders for increased
benefits. It is seen that respondent was primarily interested in obtaining a
wage increase for its employees in the sense that it was based on increased
output, and it was not until May 16 that it made specific inquiry concerning other
methods of obtaining a wage increase. It is doubtful that the wage incentive or
bonus plan provided in respondent's application, would be understood by em-
ployees generally to represent an actual wage increase. It appears, however,
that respondent's employees had no clear understanding of the nature of the
wage incentive plan applied for 21
Respondent had several meetings with its employees on the matter of a ss age
increase. President Howard testified that he addressed the employees on the
subject as early as February 1944, at which time he explained that wages and
prices were frozen and, without commitments, told them that he thought the
Government would permit a wage increase `eventually." At that time he had
been advised of procedures for obtaining NWLB approval of a wage increase.
On or about April 12, 1944, the employees approached Howard in the matter
of a wage increase. He testified that he then explained that he could not grant
an increase without Government approval and advised the employees it was
possible to apply for a "bonus incentive plan," and that he would do so if the
employees desired it. He further testified that he immediately started "nego-
tiations" in the matter, that he "probably" did not explain how the proposed
plan would work but told them the "object" of it. On May 22, Howard again
addressed the employees and on this occasion advised them that the application
had been filed. It appears that on this occasion, some of the employees asked
if the application provided for retroactive pay. Howard testified, "When they
asked me about back pay I tried to encourage them to go on and put up their
full jobs and work every day and they could be assured of that much additional
pay . . ." Questioned, "What did you tell them in respect to back pay? Did
you tell them they would or wouldn't get it or just what?" Howard testified,
"I told them I didn't know, sir." • Howard's final discussion with employees rela-
tive to a wage increase, occurred on the morning of July 24, as previously set
forth. Sam Roberts testified that on this occasion, Howard stated that he
20 A somewhat higher standard than provided for in respondent 's application.
u Thus, Jesse Howard questioned concerning Howard's statements to employees on the
subject of the wage application, testified : "I just never did understand what he meant by
it " Assistant Superintendent Harvey admitted on cross -examination that he was not
"too sure" how the wage incentive or bonus plan would "work."
ROCKWOOD STOVE WORKS 1317
did not want to assume sole responsibility for writing to the NWLB for the
purpose of urging prompt action on the application, since it might cause further
delay and might result in denial of retroactive pay. William Rogers, Jesse
Howard and Johnie Smith, Board witnesses, testified similarly. Howard denied
that he made this statement . It is clear, however, that at no time did he advise
the employees that his wage application did not in fact provide for retroactive
pay, and in view of his entire testimony on the topic, which was confused and
evasive, the undersigned credits the Board's witnesses.
It is clear from the foregoing and the entire record that at no time was there
an agreement between the employees and the respondent, as existed in the Atneri-
can News case, on the matter of an application for a wage increase.22 As pre-
viously indicated, the employees had no clear understanding of the wage incentive
plan sought in respondent's application, and this was, in the opinion of the
undesigned, due in large measure to a lack of candor and explicitness in re-
spondent 's dealings with its employees in the entire matter. It is also clear
that respondent made no real effort to obtain for its employees an actual increase
in their basic wage rates , and that it was hesitant and dilatory in such action as
it did take in the matter. Its first concrete proposal for a wage incentive plan
was contained in the letter of April 13, when Howard testified he began "negotia-
tions" in the matter. This was some 6 months after it had obtained, in response
to its inquiry of October 14, 1943, instructions in the preparation and filing of
applications. It further appears that it wrote the letter of April 13 only after
the employees had voiced collectively their dissatisfaction with prevailing wage
rates. Its letter of May 11, giving additional data necessary to complete its
application of April 26, was written on the date of the first general walkout. From
the foregoing it appears that such action as respondent did take was to some con-
siderable extent the result of pressure exerted by the employees.
The instant situation is further distinguished factually from the American
News case in that whereas in that case the employees struck for the sole purpose
of requiring the employer to grant immediately a wage increase which they well
knew the employer could not legally grant, the respondent's employees who left
their jobs on July 24 were motivated by several causes unrelated to wages, such
as dissatisfaction with woiking conditions, what some of them considered lack
of management cooperation, and respondent's use of the provoked discharge. To
hold that the American News doctrine has the force of depriving of the protection
of the Act all concerted activity which, without conscious design of requiring an
illegal act, has as an ingredient intent and purpose to obtain better wages, would,
in the opinion of the undersigned, amount to an unwarranted extension of that
doctrine.
Finally, while the undersigned is convinced that a wage increase was one of
the ultimate objectives of the strike, it does not appear that it was the intent and
purpose of those engaging therein to require respondent to grant an increase
illegally. All witnesses who were questioned on the point, testified to the contrary.
The real purpose and design of the strike, in the opinion of the undersigned, was
the desire of those employees who had signed, or who had authorized their names
to be attached to, the petition of July 18, to hold their ranks intact until union
22 "In the American News case , the union and the employer had bargained to an agree-
ment for wage increases and, in accordance with applicable federal regulations , had made
a joint application to the National War Labor Board for approval of the proposed increases.
Before such approval had been obtained and with knowledge that, under existing wage
stabilization legislation and regulations, the proposed wage increases could not lawfully be
put into effect prior to such approval , the union resorted to strike action to force the
employer to pay the proposed wage increase immediately . Matter of Indiana Desk Com-
pany, 58 N. L. R. B. 48.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization could be perfected' at which time the employees might reasonably
expect, with the backing of the Union, to exert pressure to force the respondent to
take whatever measures were required for the granting of a genuine wage increase.
As will be seen hereinafter, when the employees had perfected their organization,
as they did immediately following the walkout, they offered to return to their
jobs en masse, without commitment by respondent on the subject of wages. They
doubtless believed that they were then in posit ion to seek their wage objectives by
collective bargaining through their chosen representative, and stood ready and
willing to terminate their strike action.
In view of the foregoing, the undersigned finds that it would lie an unwarranted
extension of the doctrine of the American Neum doctrine fo apply it to the instant
situation by denying the employees who participated in the July 24 walkout the
protection that the Act affords employees engaging in concerted actnity.
C. The discharges
On the evening of July 26, in response to the letter or petit ion of July 1S,
Draper Doyal, an International Representative of the Union, came to Rockwood
and met with a group of employees, most of whom had participated in the walkout
of July 24, at the home of Sam Roberts. At this meeting, IJ employees became
affiliated with the Union and the following were elected officers: Johnie Smith,
president; C B. Kilgore, vice-president; Sam Roberts, financial secret:iiy; William
Rogers, treasurer, Tom Fuller, recording secretary. A committee composed of
Smith, Tom Nash, and W. C Johnson, was designated to call on President
Howard on the following day for the purpose of adiising him that the employees
had formed a union and to request Howard to meet with the employees' com-
mittee and the union representative.
There was a failure of the committee thus appointed to meet on the following
morning and only Johnie Smith called at Howard's othee According to Smith,
he advised Howard that the employees had formed a union, and requested Howard
to meet with the union committee and representative Howard replied that while
he was willing to meet with individuals or groups of employees, he would not
meet them in company with a union represcntatii e. Howard testified concerning
the conference, that Smith asked him to meet "uptown" with the employees and a
man whom he (Smith) thought was a "union man " Howard further testified:
"I replied that . . . I would meet any indii idual that came to may office but
as for a Union man coming with our former employees or pre lent employees
that I could not meet them as a whole, that I felt personally that I did not want
a union, that I felt, and it was my opinion, we had dine and were doing everything
we know how to get them an increase in pay, and it was nis understanding that
this was what they wanted." Smith further testified that during the July 27
conference Howard stated: "I will tell you what you boys ought to do; you,
Bob Hickey and another or two ought to go back to work The other boys will
come back, and we will get started again . . According to Smith lie replied
that he would come back "When the rest of the boys come back " Itonard denied
that he made this statement, but such a statement is consistent with his subse-
quent efforts to get certain employees who engaged in the July 24 walkout, to
return to work individually, and the undersigned is unable to credit his denial.
Smith called at Howard's office at approximately 8 o'clock on the morning
of July 27. According to Howard, on the afternoon of July 24 and again on
July 26, he consulted Harry Seward, in charge of the local USES office in Rock-
2' Thus , Johnie Smith testified : "We were all going to stay out until we get the Union
organized."
ROCKWOOD STOVE WORKS 1319
wood, and was advised by Seward of the regulations governing provoked dis-
charges. Howard further testified that on the afternoon of July 26, in confer-
ence with G. W. Lawson, respondent's treasurer and a member of its Board of
Directors, it was decided to issue provoked discharges, and that he advised
Seward of his decision. Howard, however, issued the copy for the discharge
leefters and the letters were written and mailed, subsequent to Howard's confer-
ence with Smith on the morning of July 27. A total of 26 provoked discharges
were issued. Only 20 of them were enforced, however, since, according to
respondent, 6 of them were issued "erroneously." 24 The discharge letters bore the
following text :
This is to notify you that we deny you a Statement of Availability.
You have provoked your discharge by continued absenteeism.
Howard testified that the provoked discharges were issued in consideration
of the walkout of July 24 "Together with their past records of production and
plant cooperation and what we call absenteeism and laying down on the job or
slowing down production." He further testified, however, that "if they were
working on the morning of July 27th they should not have been discharged." At
another point he testified that when he went to the office on the morning of July
27th, he instructed Lawson to have Superintendent Roberts prepare a list of names
"as to absenteeism, plant cooperation, and production," and that, later, he was
handed the list by Roberts. It appears, however, that no list answering to this
description was prepared on or prior to July 27. The list actually prepared by
Roberts and submitted on July 27, shows only the number of days worked from
July 24 to July 27, inclusive. No discharges were issued to any employee shown
on this list to have worked each of these days, and although discharges were
issued to six employees who did not participate in the July 24 walkout, these were
later revoked. From the foregoing it is clear and the undersigned finds that the
respondent intended to issue provoked discharges only to those employees who
participated in the July 24 walkout either by leaving their jobs on that date or by
refusing to work on a subsequent date upon learning of the action taken on July
24 by certain of the employees.26 The said discharges were invalid and incapable
of depriving the employees to whom they were issued of their employee status.
The undersigned is further convinced that the discharges were tactical and were
designed to break the strike and compel the employees, or certain of them, to
return to their jobs on respondent's own terms. Respondent had for a substan-
tial period prior to July 24, had on file with the local office of the USES an appli-
cation for some 25 additional molders and 15 clay workers, but apparently had
been unable to obtain any additional molders since it admits that it tolerated
what it considered to be highly irregular performance on the part of its molders
personnel because of the difficulty of obtaining replacements. Howard also
admitted that he knew that the discharge of the molders would put the plant
out of production. Operations were, however, continued on a maintenance level
after July 27, indicating that respondent expected to resume production. As pre-
viously stated, the effect of the provoked discharge, if recognized by the USES,
24 Provoked discharges were issued to, and enforced against, the following employees :
Bob Hickey, Tom Fuller, Charlie Gaddis, George Pelfry, Nathan Howard, Vinet Russell,
Ernest Russell, Johnie Smith, Claude Crabtree, Sam Roberts, Bruce Kilgore, Jesse Howard,
Morgan Fuller, Bill Rogers, Harry Fuller, Cornell Hickey, Mart Murray, Henry Polston, Milo
Schultz, Tom Nash. Discharges were erroneously issued, and later revoked, to the follow-
ing six employees : Robert Youngblood, Earl Hamilton, C. C. Holloway, Jack Brogdlon,
Carl Hughes, Fred Harvey.
25 In view of this finding, it is unnecessary to determine whether knowledge that the em-
ployees had organized was an additional element in respondent's action in issuing the
discharges.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was to deprive the employee of a referral for a period of GO days " It did not,
however, as has been seen, prevent the respondent from revoking the discharge
and taking the employee back, if it desired to do so, before the expiration of the
60-day period. As previously found, on the morning of July 27, Howard sug-
gested to Johnie Smith that certain of the strikers return to work as individuals,
and, respondent subsequently; offered reinstatement to some 8 of the strikers on
an individual basis.
In view of the foregoing and upon the entire record, the undersigned is con-
vinced and finds that the respondent by its use of the provoked discharge sought
to discourage and thwart the employees in their concerted activity and to coerce
them into returning to their jobs individually and thereby interfered with,
restrained and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Respondent further relies, as a defense to the issuance of the provoked
discharges, on the alleged authorization and approval of their issuance by Seward,
local manager of the USES.27 Assuming that Seward did approve the issuance of
the discharges, no action of his in this connection has any binding or probative
force in the Board's determination of the issue. Respondent may not thus shift
its own responsibility under the Act for the action taken.
Upon the basis of the foregoing findings of fact and the entire record, the
undersigned finds that the respondent on July 27, 1944, in violation of Section 8
(3) of the Act discharged the following employees because they had engaged in
concerted activities within the meaning of the Act :
Claude Crabtree, Harry Fuller, Morgan Fuller, Tom Fuller, Charlie Gaddis,
Bob Hickey, Cornell Hickey, Jesse Howard, Nathan Howard, Bruce Kilgore,
Tom Nash, George Pelfrey, Henry Polston, Sam Roberts, Bill Rogers, Ernest
Russell, Vinet Russell, Milo Schultz, Johnie Smith.28
The undersigned further finds that subsequent to July 27, the following
employees, whose regular jobs prior to July 24 were dependent -upon the
operation of the molding department, had their employment terminated be-
cause there was not available to them regular or equivalent employment of
the character performed by each of them, respectively, on and prior to July
24: Robert Youngblood, quit August 16, 1944; Robert Butler, released August
25, 19=4; W. C. Johnson, released September 5, 1944; Fred Harvey, released
August 19, 1944. That certain of the aforesaid employees quit or requested
their respective releases, is immaterial, since except for the respondent's
unfair labor practices in discharging the 19 employees listed above, includ-
ing the molders upon whom production was dependent, and subsequent re-
fusal to reinstate them, discussed, intro, it is a. reasonable assumption that
regular work would have been available to Youngblood, Butler, Johnson and
Harvey in the job capacities for which they were hired. The termination of
their employment is therefore attributable to the respondent's unfair labor
practices, and constitutes a violation of Section 8 (3) of the Act.
''B Sam S. Douglass, a labor representative of the War Production Board, who called on
Howard in August, testified : "I tried to prevail upon Mr. Howard to either take the people
back, put them to work, or release them so that we could place them on defense jobs."
His proposals were rejected. Douglass further testified that at that time, and since, 200,000
molders were needed in defense work.
27 Asked if Seward "auhorized" the discharges, Howard testified : "I don't know they
authorized me to. I know they didn't disapprove." And: "He authorized me to the
extent he didn't see anything else that I could do, that it looked we had tried everything
else." Seward , on direction of his superior , refused to testify in response to a subpoena
issued upon application of the respondent.
2s A provoked discharge was also issued to Mart Murray , but the undersigned has found
that Murray voluntarily severed his employment on July 24.
ROCKWOOD STOVE WORKS 1321
On August 22, Jack Brogdlon and Carl Hughes were dire( tod to paint over-
head pipes in the foundry from a platform suspended some 12 feet fiotu tile
floor. After a trial at this work they both refused to continue, and their em-
ployment was thereupon terminated. They testified that they considered the
work hazardous. During the period preceding July 27, Irogdlon was regularly
employed as an apprentice molder and was so classibed on respondent's pay
roll. Following July 27, when there was no longer any molder work avail-
able to him, he was assigned to various common laborer jobs Entirely aside
from the alleged element of hazard, it is clear that in the course of his
normal employment, except for respondent's unfair labor practices in issuing
provoked discharges, he would not have been assigned to or requited to per-
form work of the character winch lie retused to perform on August 22, a
common laborer job requiring none of his skills as a molder The undersigned
finds that his refusal to perform this work was provoked as an Incident flowing
from respondent's unfair labor practices, discussed sftii a, and that the ter-
mination of his employment was therefore discrnninatoiv and in violation of
Section 8 (3) of the Act. Hughes, however, was employed as a taborer in
respondent's General Work Department on and prior to July 27. In this
capacity lie normally would be required to perform general nuuuteuance work
such as he was assigned to on August 22. The undersigned will accordingly
recommend that the complaint be dismissed insofar as it alleges his discrimi-
natory discharge.
The undersigned will further recommend that the complaint be dismissed
insofar as it alleges the discriminatory discharge of Malt Murray.
D. The refusal to reinstate
At the first organizational meeting at Sam Robert's house on the evening of
July 26, Doyal advised the striking employees that they should return to their
jobs and the employees agreed to do so. On the morning of July 27, Johnie
Smith advised Howard that the employees were willing to ret urn to work as a
group but would not return individually. Also on July 27, Doyal wrote to
Howard, advising him that the Union represented a majority of employees and
requesting that "all employees, who were on the pay roll, on July 21, 1944, be
permitted to return to work immediately." This letter was received by respond-
ent on July 29. On July 30, Doyal again met with the employees at Rockwood,
and a list was made of employees who were willing to return to work. This
list shows the names of 25 employees, including a majority of those who had
received provoked discharges, and others who had affiliated with the Union
but were still working. The employees, as agreed upon, reported for work at
the usual starting time on Monday, July 31. The Union committee took the list
into the plant to show it to Howard, but he was absent from the plant all that
day "° The Committee saw Superintendent Roberts and asked bun if lie could
put them to work. Roberts replied that he had no authority to return them to
their jobs. Roberts, an intelligent and impressive witness, testified concerning
the incident: "Mr. Howard said they had had provoked discharges and, therefore,
they wouldn't be our employees, and we couldn't work them." On August 1,
Doyal again wrote to Howard, advised him that the men had reported for work
on July 31, and concluded :
This will advise you that we are still making application that these men
be permitted to return to their jobs and they will be sent back to their
work any time they are allowed to do so by the company.
21 Howard testified that he left Rockwood early that morning and drove to Knoxville,
and did not return until late in the evening.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August- 1, Howard replied to Doyal's letter of July 27, but ignored the
request for the reinstatement of the strikers.
On August 14, Doyal together with the union committee, met with respond-
ent's counsel T. A. Wright, at the latter's office in Knoxville, and Doyal once
more requested reinstatement of the striking employees. Wright asked the com-
mittee to call a meeting and ascertain if the employees were willing, if rein,
stated, to work a full 48-hour week. The meeting was subsequently held as
requested by Wright, and on August 15, the following telegram, signed by Smith
as committee chairman, and Doyal, was addressed to Wright :
* * * Rockwood stove men agree to work any hours offered by the
company if permitted to return to work by company.
On August 16, respondent addressed the following telegram to Doyal:
We have thoroughly discussed the proposal made our attorney to re-employ
en masse with back pay individuals legally discharged and cannot accept
said proposition.
The undersigned finds that neither at the conference with Wright nor at any
other time, was the strikers' offer to return to work qualified with the condi-
tion that respondent reimburse them for time lost. It was Doyal's credible tes-
timony that at the conference with Wright on August 14, he advised Wright
that the first objective was to get the men back to work and that heproposed
that the further disposition of unfair labor practice charges be left to the Board.
The sole qualification attached to the several offers made for the strikers to
return to work, was that they be reinstated en masse. This was a legitimate
qualification.90
Respondent asserts in defense of its refusal to reinstate the striking employ-
ees, that having voluntarily quit their jobs on July 24, they were no longer
employees after that date and that respondent was therefore under no duty to
reemploy them, and, further, that the provoked discharges issued on July 27
were valid and deprived them of employee status. The undersigned has rejected
both of these contentions, but notes their inconsistency since if respondent
believed that the employees had voluntarily quit their jobs on July 24, the
July 27 discharges can be understood only as a means of punishing them by
depriving them of employment for a period of 60 days or of coercing them in
returning to their jobs on respondent's terms.
Respondent further asserts that it denied reinstatement to certain of the
discharged employees because of their poor production and absentee records and
lack of "plant cooperation." Howard testified that on the evening of August 15, a
meeting of respondent Board of Directors was held, and at this meeting the
production, earning and absentee records of the employees to whom provoked
discharges had been issued were reviewed. Howard reported at this meeting
that for the 3 months of May, June, and July, 1944, respondent had sustained an
operating loss of some $3600.31 He testified that he was thereupon directed not
to reemploy all of the strikers but only those whose production, absentee and
`plant cooperation" records justified it, and this matter was left to his judg-
30 See Draper Corporation, 52 N. L. R. B. 1477, and cases cited therein
31 Not to be confused with net loss. It appears that the periods covering both the May
and July walkouts were included in the estimate of loss By its action in issuing the
discharges and subsequent refusals to reinstate, respondent admittedly has sustained a
much greater loss, its losses in August and September being approximately $ 6,000.
ROCKWOOD STOVE WORKS 1323
ment. In September, Howard issued invitations to some eight of the employees
to whom provoked discharges had been issued, to return to their jobs'2
Respondent admits that it is willing to reemploy all but 10 of the 20 em-
ployees to whom provoked discharges were issued and, in fact, has reinstated
some of them. It is noteworthy that at the Director's meeting of August 15, only
the records of those employees who had joined in the July 24 walkout were
examined. It would appear that if respondent had been primarily concerned
in weeding out its least efficient employees, it would have examined the records
of all its employees including those still working. Also, an analysis of the pro-
duction and absentee records of the 20 employees discloses that among those
whom the respondent would and has refused reinstatement, are several whose
records excel the records of most of those whom it would, or has, offered rein-
statement. It is of further significance that among the 10 whom the respondent
would refuse reinstatement, are those most active in the organizational move-
ment, including Jesse Howard, Sam Roberts, Bruce Kilgore, Johnie Smith and
Bill Rogers The undersigned accordingly is unable to concur in the reasons
advanced by respondent for its refusals to reinstate the striking employees
en masse.
In further defense of its refusal to reinstate the strikers, respondent asserts
that during the period from July 27 to September 13, it was denied referrals
by the local USES office and therefore was unable to offer employment to anyone.
During the period from July 27 to September 13, due to the lack of molders,
respondent was substantially out of production, and has not been able to resume
production on more than a limited scale since. It is clear, however, that
respondent could have at any time reinstated its striking employees, since in the
case of six employees to whom it "erroneously" issued provoked discharges, it
revoked these discharges and returned the six employees to their jobs. In any
event, since its action in issuing the provoked discharges was illegal under the
Act, it cannot rely on the circumstances flowing from their issuance in defense
of its further action in refusing reinstatement.
E. The refusal to bargain .
1. The appropriate unit and representation by the Union of a majority therein
It is agreed among the parties and the undersigned finds that all of respond-
ent's employees excluding office and clerical employees, watchmen, and super-
visory employees with authority to hire, promote, discharge, discipline and
otherwise effect changes in the status of the employees or effectively to recom-
mend such action, constitute and at all times material herein have constituted
a unit appropriate for the purposes of collective bargaining.
There is agreement among the parties as to the employees falling within the
stipulated classifications, with the exception of Sam Hicks whom the Board and
the Union would exclude on the grounds that he is supervisory. The under-
signed has found that although Hicks bears the pay roll classification of "fore-
man," his supervisory functions actually are minor and limited in scope," The
8" Respondent asserts in its answer that during the period of September 13 to October 7,
it offered to "reemploy" Claude Crabtree, Harry Fuller, Morgan Fuller, Tom Fuller, and
Ernest Russell. It appears that these employees refused reinstatement on an individual
basis . Charlie Gaddis, Bob Hickey, and Cornell Hickey were also offered reemployment
and accepted. The employees were not required to accept reinstatement as individuals and
are not now deprived of reinstatement because of the said refusal. To hold otherwise
would be to enable respondent to destroy the Union with impunity. See Draper Corpora-
tion, 52 N. L. R. B. 1477, and cases cited therein.
88 See footnote 14, supra.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned finds that he is not an employee "with authority to hire, promote,
discharge, discipline and otherwise effect changes in the status of the employees
or effectively to recommend such action," and therefore that he is properly
included in the appropriate unit agreed upon by the parties. If at such time
as the respondent might expand its operations, Hicks is vested with more sub-
stantial supervisory functions, he would automatically be excluded from the unit.
As of July 27, the date on which Doyal first notified the respondent that the
Union represented a majority of its employees, 19 of respondent's employees had
affiliated with the Union. By July 31, the number was 23, and one additional
employee affiliated with the Union on August 14, making a total of 24. During
the pay-roll period of July 21, respondent employed a total of 35 employees in
the appropriate unit, including Sam Hicks.` No new employees were hired
subsequent to that date until on or about September 28, 1944.
From the foregoing it is clear and the undersigned finds that on and at all
times after July 27, 1944, the Union was the duly designated bargaining repre-
sentative of a majority of employees in an appropriate unit, and that pursuant
to the provisions of Section 9 (a) of the Act, the Union was on July 27, 1944,
and at all times thereafter has been and is now the exclusive representative of all
employees in the aforesaid appropriate unit for the purposes of collective bar-
gaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
2. The refusal to bargain
On the morning of July 27, in response to Johnie Smith's request that Howard
meet with the employees and their union representative, Howard stated that
while be was willing to meet with groups of employees or individuals, lie would
not meet the employees in company with a union represenative.' In response
to Doyal's letter of July 27, received.by respondent on July 29, in which Doyal
advised Howard that the Union represented a majority of the employees and
requested a conference, Howard replied that respondent would meet "with any
committee, bargaining or representative designated or selected under proper
procedure by a majority of its employees." (Italics supplied.) When, later,
Doyal attempted to arrange a conference with him he refused to discuss the
issues and referred Doyal to respondent's attorney. At the meeting of August 14
in Wright's office, Doyal again requested recognition and offered to show Wright
the Union's membership cards as proof of the Union's majority. Wright re-
fused to look at the cards and stated that he would recommend that respondeht
refuse recognition until the Union had been duly certified by the Board. Re-
spondent adopted this recommendation.
Respondent's defense to its refusal to bargain appears to be predicated upon its
position that the employees who engaged in the July 24 walkout were deprived
of their employee status, and upon its further contention that respondent
has no duty to recognize and bargain with the Union until the Union has been
formally certified by the Board. The undersigned has rejected the argument
that the employees voluntarily terminated their employment on July 24, or
were deprived of employee status by the issuance of provoked discharges on
94 Excluding, however, Mart Murray, whom the undersigned has found voluntarily
severed his employment on July 24.
ss Smith's statements to Howard on July 27 do not, in the opinion of the undersigned,
represent a request for recognition and bargaining rights. Smith made no representations
as to whether the Union had been designated by a majority, or in fact sought recognition
and bargaining rights of a majority representative.
ROCKWOOD STOVE WORKS 1325
July 27. It is also clearly established in decisions of the Board and the
Courts too numerous to cite, that where a labor organization represents a
majority of employees in an appropriate unit, and advises the employer of that
fact and makes a reasonable offer of proof of the said majority, the employer,
unless there are extenuating circumstances such as claims by it rival union, may
not lawfully withhold recognition and refuse to bargain on the grounds that the
said labor organization has not been formally certified by the Board.
On the basis of the foregoing findings of fact and upon the entire record, the
undersigned finds that on July 29, 1944, and at all times thereafter, the respow tent
has refused to bargain collectively with the Union as the exclusive representative
of its employees in the appropriate unit and has thereby ititerfeied with,
restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act.
F. 8 (1) statements
The Board 's complaint alleges that President Howard, Superintendent Roberts
and Assistant Superintendent Harvey made statements discouraging union
affiliation and activities , in violation of Section 8 (1) of the Act.
Howard admitted that on the morning of July 27 lie told Johnie Smith that
he did not want a union and was doing all that he could to get a wage increase
which was what he understood the employees wanted. Smith testified that on
this same occasion , Howard stated : "I can sell this office furniture for a good
price and I also could rent the building out as scarce as shelter is." Howard
denied that he made this statement and the undersigned on the basis of his
observation of the witnesses and the entire circumstances of the case, credits
his denial.
As previously set forth , Sam Roberts testified that on or about July 5, 1944,
during a conversation among employees when Roberts advocated organizatLoll
for.future security of jobs , Harvey stated that organization had been tried
before and had failed . Morgan Fuller testified to the effect that following
NWLB approval of respondent 's wage application, Harvey stated that Fuller
would "get more money coming back in here and working now" than fie «ould
get by staying with the Union . Harvey admitted that the conversation v ith
Fuller occurred but denied that unions were mentioned and testified that he
explained the bonus plan to Fuller to the best of his "knowledge how it would
work" and told Fuller that he thought " if the men would come oil back to work
that it would make them a pretty good raise ." Harvey NN as a convui(uig witness
and the undersigned credits his version of the coaveisatiou William Rogers
testified that in August 1944 , Harvey told him that " lie didn ' t see where the
Union was going to do any good," and that "before Mr. Harry [ Howard] will
recognize this Union he will close this place down and let the grass grow up
around it .. ." Harvey was not questioned concerning this alleged statement.
Since Rogers was on the whole a credible witness , and there was no denial of
his testimony , the undersigned finds that Harvey made the statements sub-
stantially as testified to by Rogers . Such a statement , made at a time when
production was substantially at a standstill and when the Union was seeking
unsuccessfully to return the striking employees to their jobs , was coercive and
violative of Section 8 (1) of the Act . Other statements of Howard and Harvey,
as found above , tended to discourage union membership and activities but were
utterly lacking in coerciveness and did not, in the opinion of the undersigned,
constitute a violation of the Act. There is no evidence that Superintendent
Roberts made any anti -union statements whatever.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR 1,ABOR PR WIPES UPON i UYIMh1K E
The activities of the respondent set forth III Section [11, alsi e, occult h g mn t on-
nection with the operations of the respondent described m Section I, above, hate
a close , intimate, and substantial relation to trade, trthc, and coniueice among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. TILE REMEDY
Having found that the respondent huts engaged to certain tin lair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act
The undersigned has found that the iespondciit has rciu5cd to bargain col-
lectively with the Union as the exclusive represelt(at ive of its employees in an
appropriate unit. It accordingly will he iecommncnded thin the respondent, upon
request, bargain collectively with the Union
The undersigned has found that the iespondent discruuilated in regard to the
hire and tenure of employment of the eniplo^ccs whose uatues are set forth in
Appendix A of this Report. The undersigned will iherefoie recommend that
the respondent offer immediate and full remstatcinent to (he employees whose
names are set forth in Appendix A, to their hornier or substantially equivalent
positions," without projudice to their semoritN or otliei rights amid pi`tvileges, and
that the respondent made them whole for loss of pay they may have sintered by
reason of the discrimination against theni, by payment to each of' a stun of money
equal to that which lie normally would have e:umed lroni the date of the dis-
criminatory termination of his employment, to the date of the offer of reinstate-
ment, less the net earnings " of each dui ing the soul period.
Upon the basis of the foregoing findings of fact and upon the cutiic record in
the case, the undersigned makes the following.
CONCLUSIONS OF LAw
1. International Molders & Foundry Workers Union of Not th America, affili-
ated with the American Federation of Labor, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All of respondent's employees excluding office and clerical eniploti ces, watch-
men, and supervisory employees with authority to hire, promote, discharge, dis-
cipline and otherwise effect changes in the status of the employees or effectively
to recommend such action, constitute and at all times material heieiri have
constituted a unit appropriate for the purposes of collective bargaining
3 International Molders & Foundry Workers Union of North Amciica, affili-
ated with the American Federation of Labor, was on July 27, 1944, and at all times
thereafter has been the exclusive representative of all the employees iii the
0 While it appears that the respondent has reinstated certain of the employees whose
names appear in Appendix A, and that they are now working, it is not clear whether the
reinstatement was to their "former or substantially equivalent" po' itions, and therefore
their names are included
aT By "net earnings" is meant earnings less expeii^es, such as foi tran,,port,ition, room,
and board, incurred by an emploi ce in connection with obtaining woi k and working else-
where than for the respondent, which would not have been incurred but for his unla'eful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Biotbeihood of Carpenters and Joiners of
America, Lumber and Sawmill iVorkeis Union, Local 2590, 8 N. L 1, B 440 Monies
received for work performed upon Federal, State, county, municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v N L it. B,
311 U. S. 7.
ROCKWOOD STOVE WORKS. 1327
aforesaid unit, for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing on July 29, 1944, and at all times thereafter, to bargain collec-
tively with International Molders & Foundry Workers of North America, affili-
ated with the American Federation of Labor, as the exclusive represental i%e of its
employees in the aforesaid appropriate unit, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (5) of the
Act.
5. By discriminating in regard to the hire and tenure of employment of the
employees whose names are set forth in Appendix A of this Report, and thereby
discouraging membership in a labor organization, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (3) of
the Act. .
6. 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
8. The respondent has not engaged in unfair labor practices by discriminating
in regard to the hire and tenure of employment of Mart Murray and Carl Hughes.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent , Rockwood Stove Workers,
its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Molders & Foundry
Workers Union of North America , affiliated with the American Federation of
Labor, as exclusive representative of all its employees excluding office and clerical
employees , watchmen and supervisory employees with authority to hire, promote,
discharge , discipline and otherwise effect changes in the status of the employees
or effectively to recommend such action ;
(b) Discouraging membership in International Molders & Foundry Workers
Union of North America, affiliated with the American Federation of Labor, by
discharging or refusing to reinstate any of its employees , or in any other manner
discriminating in regard to their hire and tenure of employment , or any term
or condition of employment; '
(c) Engaging in any like or related acts or conduct interfering with, restrain-
ing or coercing its employees in the exercise of the right to self-organization,
to form, join or assist labor organizations , to bargain collectively through rep-
resentatives of their own choosing , and to engage in concerted 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 undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Molders & Foundry
Workers Union of North America , affiliated with the American Federation of
Labor , as the exclusive representative of all its employees excluding office and
clerical employees , watchmen , and supervisory employees with authority to
hire, promote , discharge, discipline and otherwise effect changes in the status
of the employees or effectively to recommend such action ;
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to the employees whose names are set forth in Appendix A of this
Report, immediate and full reinstatement to their former or substantially equiv-
alent positions,88 without prejudice to their seniority and other rights and priv-
ileges ;
(c) Make whole the employees whose names are set forth in Appendix A
of.this Report, for any loss of pay they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them of a sum
of money equal to that which he or she normally would have earned as wages
from the date he was discriminatorily deprived of his employment, to the date
of the offer of reinstatement, less his net earnings 39 during said period ;
(d) Post at its plant at Rockwood, Tennessee, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice to be furnished by the
Regional Director of the Tenth Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material :
(e) File with the Regional Director of the Tenth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
The undersigned will recommend that the complaint be dismissed insofar as
it alleges the discriminatory discharge of Mart Murray and Carl Hughes.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, as
amended, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such statement
of exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the parties and shall file a copy with the Re-
gional Director. As further provided in said Section 33, should any party desire
permission, to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
WILLIAM E. SPENCER,
Trial Examiner.
Dated February 9, 1945
88 By "former" positions is meant the positions held during that period on and immediately
prior to July 24, 1944.
89 See footnote 37, supra.
ROCKWOOD STOVE WORKS
APPENDIX A
Nonce To ALL EMPLOYEES
1329
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist International Moulders & Foundry Workers Union of North
America, affiliated with the American Federation of Labor, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
We will bargain collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is: All the em-
ployees of Rockwood Stove Works, Rockwood, Tennessee, excluding office
and clerical employees, watchmen, and supervisory employees with authority
to hire, promote, discharge, discipline and otherwise effect changes in the
status of the employees or effectively to recommend such action.
Claude Crabtree
Harry Fuller
Morgan Fuller
Tom Fuller
Charlie Gaddis
Bob Hickey
Jesse Howard
Nathan Howard
Bruce Kilgore
,Tom Nash
George Pelfrey
Henry Polston
Sam Roberts
Bill Rogers
Ernest Russell
Vinet Russell
Milo Schultz
Johnie Smith
Cornell Hickey
W. C. Johnson
Fred Harvey
Robert Youngblood
Robert Butler
Jack Brogdlon
0
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not lliscriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
----------------------------------------
(Employer)
Dated------------------ By ------------------------ ---------------
(Representative) (Title)
NoTE: Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
In accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.