United States Stamping Co.

National Labor Relations Board - Board Decisions

Feb 10, 1938

5 N.L.R.B. 172 (N.L.R.B. 1938)

In the Matter Of UNITED STATES STAMPING COMPANY and ENAMEL
WORKERS UNION, No. 18630
Case No. C-203.-Decided February 10, 1938
Stamping and Enameling Industry-Interference, Restraiat , or Coercion:
use of labor spies ; refusal to bargain collectively-Discrimination : discharges ;
allegations of complaint dismissed-Collective Bargainting : refusal to bargain
collectively with representatives of labor organization subsequent to certifi-
cation by the Board ; presumption of continuation of majority in certified'
organization in absence of proof to contrary-Strike: caused by employer's-
unlawful refusal to bargain collectively; effect of injunction awarded by State
court-Reinstatement Ordered: strikers upon application for reinstatement;
commission of unlawful acts during strike as affecting reinstatement-Back-
Pay: awarded strikers , from date of denial of application for reinstatement.
Mr. Robert H. Kleeb, for the Board.
Mr. Martin Brown, of Moundsville, W. Va., for the respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On December 9, 1936, W. H. Wilson, an organizer for the Ameri-
can Federation of Labor, filed a charge with the Acting Regional
Director for the Sixth Region (Pittsburgh, Pennsylvania) alleging
that United States Stamping Company, Moundsville, West Vir-
ginia, herein called the respondent, had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (5), and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On April
23, 1937, W. E. Kirk, likewise an organizer for the American Federa-
tion of Labor, filed a charge with the same Acting Regional Director,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (3), and Section 2 (6) and (7) of the Act.
On April 28, 1937, the Acting Regional Director issued a complaint
and notice of hearing which were duly served upon the respondent and
172
DECISIONS AND ORDERS 173
upon Enamel Workers Union No. 18630,1 herein called the Union.
The complaint alleged, in substance, that after February 11, 1936, the
date on which the Board certified the Union as the exclusive repre-
sentative of the production and maintenance employees of the respond-
ent,2 and on or about September 28, October 6 and October 9, 1936, and
on various dates thereafter, the respondent refused to meet and/or
negotiate with the representatives selected by the Union and that the
respondent did not negotiate with such representatives in good faith,
such acts constituting unfair labor practices within the meaning of
Section 8 (5) of the Act; that on February 6, 1937, during a strike
at the respondent's plant, which had been called by the Union on
October 10, 1936, and which had not yet terminated at the time the
complaint was issued, the respondent had discharged and refused to
reinstate William Bane and Sylvester Riggs 3 for the reason that they
were too closely connected with the Union and because each of them
had a son employed by the respondent who was actively engaged in
the strike and appearing regularly on the picket line, such discharges
and refusals to reinstate constituting unfair labor practices within
the meaning of•Section 8 (3) of the Act; and that the respondent had
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act, by virtue of the above-alleged practices and also by em-
ploying certain agencies and individuals subsequent to October 10,
1936, for the purpose of spying upon the activities and meetings of
its employees and of the Union and of removing the president of the
Union from the community.
On May 5, 1937, the respondent filed an answer to the complaint,
denying that it had engaged in unfair labor practices affecting com-
merce as alleged in the complaint. At the same time the respondent
filed a motion to dismiss on the grounds that the charges filed were
insufficient under the Act and the rules of the Board, that the Act
does not require that an employer enter into a contract with his
employees, that the facts set forth in the charges and complaint showed
that the respondent had not engaged in unfair labor practices, and
for other reasons.
Pursuant to the notice of hearing, a hearing was held in Mounds-
ville, West Virginia, from May 6 to May 21, 1937, before Edward
Grandison Smith, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
i The charge, complaint and other pleadings in the case designate the Union as Porcelain
Enamel workers Union No. 18630. Testimony at the hearing shows that at some time in
1936, the name of the organization was officially changed by the American Federation of
Labor, pursuant to request by the Union, to Enamel Workers' Union No. 18630.
21N.L R. B 123.
8 Incorrectly designated Moody Riggs in the complaint.
174 NATIONAL LABOR RELATIONS BOARD
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
The respondent renewed its motion to dismiss the complaint on the
grounds set forth above. The motion was denied by the Trial Ex-
aminer. The ruling is hereby affirmed. During the course of the,
hearing, the Mutual Labor Advancement Association of Moundsville,
West Virginia, filed a petition for intervention and for other affirma-
tive relief. The Trial Examiner reserved decision on the request of
the petitioner to be allowed-to intervene and denied the petition for
all other purposes. In his Intermediate Report the Trial Examiner
denied the petition for intervention. This ruling is hereby affirmed
for the reasons hereinafter set forth.
During the course of the hearing, counsel for the Board moved to
amend the complaint to allege that the strike which occurred in the
respondent's plant on October 10, 1936, was caused by the respondent's
refusal to bargain collectively and to allege that the respondent had
employed the services of'certain agencies for the purpose of spying
upon the union activities of its employees in the period from Novem-
ber 1935 to September 6, 1936, instead of on the dates alleged in the
original complaint. These amendments were allowed, objections of
the respondent thereto being overruled. The most important of
these objections will be discussed hereinafter. The rulings of the
Trial Examiner on the motion and the objections thereto are hereby
affirmed.
A certified copy of a suit in equity in the Circuit Court of Marshall
County, West Virginia, was offered in evidence as Respondent's Ex-
hibit No. 3. The Trial Examiner admitted the exhibit tentatively.
Respondent's Exhibit No. 3, is hereby admitted and made part of the
record in the case. Respondent's Exhibits Nos. 66 to 79 inclusive,
and 81, being certified copies of true bills returned by the Grand Jury
of Marshall County, West Virginia, to the Circuit Court of Marshall
County, West Virginia, were refused admission by the Trial Ex-
aminer on objection of counsel for the Board. The rulings of the
Trial Examiner are hereby overruled and the said exhibits are
admitted into evidence.
Numerous other motions and objections to the admission of certain
testimony were made by counsel for the Board and counsel for the
respondent. Most of these rulings are assigned as error by counsel
for the respondent. The technical objections of the respondent are
in some instances well-founded. However, after careful review of
the entire record, the Board is of the opinion that the respondent was
not prejudiced by these rulings. With the exceptions stated above,
the rulings of the Trial Examiner on motions and objections are
hereby affirmed.
DECISIONS AND ORDERS 175
On June 1, 1937, the respondent filed a brief in support of its mo-
tion to dismiss the charges and complaint and amended complaint.
On July 17 , 1937, pursuant to Article II, Section 32, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
the Trial Examiner issued an Intermediate Report which was duly
served upon the respondent and the Union. The Trial Examiner
found in the Intermediate Report that the respondent had engaged in
unfair labor practices affecting commerce as alleged in the complaint
and recommended that the respondent be required to cease aid desist
from such unfair labor practices , to reinstate William Bane and
Sylvester Riggs with back pay, to reinstate all strikers to their
former positions, discharging if necessary those who have been hired
to replace them, and upon request to bargain collectively with the
Union.
On August 6, 1937, the respondent filed exceptions to the findings
of the Trial Examiner embodied in the Intermediate Report and fur-
ther exceptions to the record, and the complaint, and amendments
permitted to the complaint.
On August 7, 1937, the Mutual Labor Advancement Association
filed exceptions to the record and to the ruling of the Intermediate
Report which denied its petition for intervention. The petition
asked for recognition of the Mutual Labor Advancement Association
by the Board, for an election, and that the petitioner be allowed to
intervene for all purposes relevant to the hearing. The petition for
recognition is meaningless; the request for an election is not in con-
formity with the Board's requirements. The petition was rightly
denied for these purposes. In so far as the request for intervention
is concerned, the petitioner's right depended upon the relevancy of
the facts alleged to the issues involved. The petition alleged that
the petitioner had 551 members among the production and mainte-
nance employees of the respondent at the time the petition was filed,
but failed in any way to allege that the petitioner claimed as mem-
bers a majority of the respondent's production and maintenance em-
ployees during the period within which the complaint alleges the
respondent failed to bargain collectively with the Union as the
exclusive representative of its employees . Without such allegation,
the matters set forth in the petition were clearly irrelevant to the
issues involved . It may well be , as alleged in the petition, that a
majority of the production and maintenance employees now working
in the respondent 's plant are members of the Mutual Labor Advance-
ment Association . However, if , as we find below , the respondent
refused to bargain collectively with the Union at a time when it rep-
resented a majority of the respondent 's employees , we cannot recog-
nize a designation of other representatives since that time as indicat-
176
NATIONAL LABOR RELATIONS BOARD
ing a free expression of choice by the employees. The exceptions of
the petitioner are hereby denied.
Upon the entire record in the case, the Board makes the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
United States Stamping Company, a West Virginia corporation,
is engaged in the manufacture of enamelware, including hospital sup-
plies, cooking utensils and other articles for household use, at a plant
located at Moundsville, West Virginia. In 1936, the volume of
respondent's business amounted to $1,053,780.75; in the first four
months of 1937, it amounted to $455,758.58.
A great variety of raw materials including borax, flint, feldspar,
oxides, sand, silica, and steel are used to produce the finished products
manufactured by the respondent. All raw materials used by the
respondent, except steel, originate outside the State of West Virginia.
Seventy-five per cent of the steel used by the respondent is purchased
from Wheeling Steel Company, Wheeling, West Virginia, the balance
from American Rolling Mill Company, Middletown, Ohio. In ad-
dition to raw materials, many manufactured products, including car-
tons, pads, covers, knobs, and wooden handles, are used in the finish-
ing and shipping of the respondent's products. Of the total amount
of raw materials and manufactured products used by the respond-
ent, 95 per cent originate outside the State of West Virginia.
Ninety to 98 per cent of the respondent's finished products are
shipped to° purchasers outside the State of West Virginia. These
customers, numbering about 10,000 to 12,000, are located in practi-
cally all States of the United States, and in Puerto Rico, Canada,
and Cuba. The respondent employs 23 salesmen who solicit orders
throughout the continental United States and in Puerto Rico. Orders
received by these salesmen are sent to Moundsville, West Virginia,
where they are subject to acceptance. Orders accepted are shipped
directly from Moundsville to the purchasers, by means of railroad
or truck. The respondent maintains a,sample room in New York
City and in Chicago, Illinois.
II. THE UNION
Porcelain Enamel Workers Union, No. 18630, a labor organization,
is a federal union chartered directly by the American Federation of
Labor. It was organized in 1933, its membership being confined to
production and maintenance employees of the respondent. As pre-
viously stated, the name of the organization was officially changed
in 1936 by dropping the word "Porcelain" in the title.
DECISIONS AND ORDERS
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
177
In June 1935 the Union requested the respondent to bargain col-
lectively concerning an agreement relating to wages, hours, and con-
ditions of employment. The respondent refused to deal with the
union committee, stating that the Union did not represent a majority
of the respondent's employees. In August 1935 the Union secured
written authorizations to act as collective bargaining agent from
282 of the 411 persons then employed in-the production and main-
tenance departments of the respondent. These cards were submitted
by the Union to an agent of the Board, who after checking the signa-
tures on the cards with canceled checks of employees furnished by
the respondent, notified the respondent that a majority of the pro-
duction and maintenance employees had selected the Union to repre-
sent them. The management of the respondent, nevertheless, refused
to meet with a committee of the Union, still contending that it did
not represent a majority of the employees, F. S. Earnshaw, secre-
tary-treasurer and general manager of the respondent, stating fur-
ther that under no circumstances would he deal with the representa-
tives of a union, especially one affiliated with the American Federation
of Labor.
On November 6, 1935, after failure to secure recognition as the
collective bargaining representative, the Union called a strike among
the employees of the respondent. The strike was terminated on
November 29, 1935, by the Union's acceptance of proposals made by
the respondent. These proposals included an offer to resume opera-
tions at the plant under the same rates of pay as existed prior to the
strike and without discrimination against any of its employees, and
the agreement of the respondent to abide by the decision of the Board
designating the collective bargaining agency pursuant to a petition
which had been filed on November 4, 1935, on behalf of the Union
by H. G. Flaugh, an organizer of the American Federation of Labor.
On January .13, 1936, after hearings on the petition the Board
directed that an election be held within a period of one week from
the date of the Direction, "among the employees engaged in the
production and maintenance department [of the Company] on
November 5, 1935, and those employed between that date and the
date of this direction of election in the production and maintenance
department, excepting foremen, assistant foremen, supervisors and
clerical employees, and those who quit or have been discharged for
cause during such period, to determine whether or not they desire
to be represented by the Porcelain Enamel Workers' Union No.,
18630." 4
41 N. L. R. B. 123.
178 c
NATIONAL LABOR RELATIONS BOARD
On January 17, 1936, the following printed notice was posted ort
the respondent's bulletin board.
We; the undersigned called on Mr. Earnshaw to obtain his view
pertaining to the election Monday for the purpose of electing a,
collective bargaining committee.
It is rumored that this election is for the purpose of recognition,
of the union. Our information is that the purpose of this election,
is to not recognize a union but the purpose is to select a Commit-
tee to represent all the employees.
It is understood that if the union elects the collective bargain-
ing committee, this committee will demand recognition of the-
union. We are informed that the company positively will not,
recognize any union.
It is further rumored that the committee will submit an agree-
ment to be signed, and we are informed that the company will not.
sign an agreement of any nature with any union.
When the company refuses to recognize the union and will not
sign an agreement, it is rumored the union will strike and we will
all be out of work again.
We suggest that all employees regardless of the nature of their
work who were on the payroll November 5th and those who were
hired after that date up to January 13th will be permitted to vote.
Signed HARRY RICHMOND, MARY J. POWELL, M. R.
HOLMES, Sur DENIS, R. C. PETERS, W. A. SCHOENIAN,
J. B. MERRITT, ALBERT HOWARD, ED WEST.
Earnshaw denied that this notice was prepared by him or at his
suggestion. Earl Howard, a clerical employee of the respondent,
testified that, without direction of any supervisory employee of the
respondent, he selected the nine persons who signed the petition from
among the respondent's employees because he considered them "fair-
minded" employees, and with the consent of F. W. Oberman, who
was then acting in the capacity of production or plant manager, se-
cured permission for these employees to attend a meeting in the
sample room of the plant; that he requested Earnshaw to address
the meeting and that after Earnshaw left he drafted the bulletin;
and that the cost of printing the bulletin was paid by the Mutual
Labor Advancement Association, from a fund secured by collections.
What Earnshaw stated to the so-called committee is in doubt because
of the conflicting testimony on this point of the various witnesses.
In any event, this bulletin containing palpably untrue statements
designed to influence voters in the election was posted on the re-
spondent's bulletin board, and must have been posted with the consent
or acquiescence of the management.
DECISIONS AND ORDERS 179
On January 20, 1936, at the election held by the Regional Director
for the Sixth Region pursuant to the Direction, a clear majority
of the eligible employees chose the Union to represent them. On
February 5, 1936, the respondent filed exceptions to the Intermediate
Report of the Regional Director concerning the conduct and results
of the election. These exceptions, in substance, were that (1) the
Act is unconstitutional; (2) the election was invalid in that certain
groups of employees were not permitted to vote; (3) the ballot used
in the election was "a fraud on its face and was not held (sic) in
accordance with the election laws of the State of West Virginia";
(4) "the said election has all the earmarks of an election conducted
under the management of Adolph Hitler rather than under the Amer-
ican system"; and (5) "the said election gave no opportunity to vote
for anybody or any person but said Porcelain Enamel Workers'
Union-and is an unconstitutional attempt to have the United States
Stamping Company recognize the `American Federation of Labor',
which it will not do."
On February 10, 1936, before the Board had acted upon the Inter-
mediate Report and exceptions thereto, a committee of the Union
called on the respondent to discuss a proposed agreement which had
been submitted to the respondent by the Union on February 3, 1936.
Despite the agreement of the respondent to abide by the decision
of the Board, on which the Union had terminated the strike of
November 6, 1935, Martin Brown, attorney for the respondent, stated
at various times during the course of this meeting :
I understand you gentlemen have some agreement, I don't
know what that is-but whatever agreement you have, I don't
intend to discuss that-but that was pending the final agreement
of the National Labor Relations Act. Now, you have had an
election. There has been an objection filed to that election.
The Pittsburgh Office made a report as to their findings of that
and asked if there was objection, and those objections have been
filed and there has been no reply; so that settles that-there
isn't anything to do. The statute isn't settled or determined and
you can't expect or ask anyone to comply with a statute when
the statute is in dispute-is in question.
The law isn't determined yet. If' the National' Labor Rela-
tions Act is determined to be the law of 'this country,, it will not
require any act on the part of the United States Stamping
Officials to agree to it.
No, it [the Act] is not a law until some Court passes' on it.
180 NATIONAL LABOR RELATIONS BOARD
Don't you think when you hold an election that all those who
are interested in the organization ought to have an opportunity
to submit their views-don't you think that there were other
parties ... We are not going to be pushed into anything. We
understand our rights-but when you talk about having an elec-
tion and a fair election, the way I see the election it was a Hitler-
ized affair-planned just like Hitler....
On the following day, February 11, 1936, the Board issued a Deci-
sion and Certification of Representatives.5 The Certification of
Representatives, after stating that "no substantial and material issue
with respect to the conduct of the ballot" had been raised by the
objections filed by the Company, certified the Union as the exclusive
representative of the production and maintenance employees of the
respondent for the purposes of collective bargaining.
B. The refusal to bargain collectively
Subsequent to the Board's certification of the Union on February
11, 1936, and up to October 10, 1936, at which time another strike was
called at the respondent's plant by the Union, six meetings were held
between the representatives of the respondent and a committee of
the Union for the purpose of negotiating a collective bargaining
agreement. Notes of these meetings made by a stenographer selected
by the respondent, and introduced in evidence at the hearing by the
respondent, clearly show that the respondent did not bargain collec-
tively with the Union at these meetings. The meetings were held on
February 24, March 17, June 1, September 28, October 6 and Octo-
ber 9, 1936. The respondent was generally represented by either
Earnshaw or V. W. Jared, production manager, and several foremen.
The sales manager and a stockholder of the respondent were also
present at some of the meetings. The union committee was accom-
panied at most of the meetings by an organizer from the American
Federation of Labor, and on one occasion, at the meeting of February
24, by two organizers.
At the meeting of February 24, 1936, David Williams, an or-
ganizer, requested the respondent to negotiate an agreement. Earn-
shaw replied that the respondent and its counsel were of the opinion
that the Act did not require the respondent to sign an agreement,
either with the Union or with its employees. Williams stated that
the Act did require the signing of an agreement and requested that
Earnshaw state definitely whether or not the respondent would enter
into a signed agreement. The meeting adjourned upon Earnshaw's
promise that 'he would notify' Williams within' 10 days' of the
respondent's policy on signing, an agreement.
51N.L R. B. 123.
DECISIONS AND ORDERS 181
Shortly after this meeting, the respondent wrote to Williams and
requested that Williams submit in writing the question he desired the
respondent to answer. At the meetings of March 17 and June 1, the
representatives of the respondent stated that no policy could be adopt-
ed by the respondent until a reply from Williams had been received.
A new proposed agreement was submitted by the Union to the
respondent at the meeting of September 28. Jared agreed to meet
with the committee on October 6, to discuss the contents of the new
proposals. Only the introductory paragraph of the proposed agree-
ment was discussed at the meeting of October 6. This paragraph
read as follows :
THIS AGREEMENT, made and entered into this day of
, 1936, by and between the UNITED STATES STAMPING
COMPANY, of Moundsville, West Virginia, hereinafter referred to
as the Employer, and the ENAMEL WORKERS UNION LOCAL No.
18630, an affiliate of the American Federation of Labor, herein-
after referred to as the Union; WITNESSETH:
Jared stated that this paragraph was not acceptable and suggested
that it be worded,
This Agreement, made and entered into, by and between the
United States Stamping Company, Moundsville, W. Va., and five
or six names-whatever the case may be-or their successors,
who may be elected from employees of the United States Stamp-
ing Company by ballot to negotiate and bargain collectively with
respect to wages, working conditions, affecting those employees
who have authorized the above employees to represent them.
Although this proposal was not acceptable to the Union, the Union
requested Jared to consider other provisions of the agreement. Jared
then requested that the meeting adjourn for three days., The Union
agreed upon Jared's promise that the next meeting "will either be
terminated quickly, that we can't sign or we will make a very direct
attempt ..."
Jared opened the meeting of October 9, by announcing that he had
prepared a short statement, which he read, as follows :
We have concluded that since the law does not require the
signing of an agreement with this committee, we will not do so.
Jared refused to explain this statement despite the request of W. H.
Wilson, an organizer who had accompanied the union committee.
Wilson then stated :
I understand that statement to mean that the Company will
not negotiate any of the terms of the proposals that has been
submitted. '
182
NATIONAL LABOR RELATIONS BOARD
Mr. JARED. I don't believe that's included in this statement,
Mr. Wilson.
Mr. WILSON. Well, then let's go ahead and negotiate the agree-
ment, then we will talk about the signing of the contract after
the terms are agreed upon.
Mr. JAZZED. I am sorry.
During these negotiations the respondent did not deny that a major-
ity of its employees desired the Union to represent them. In the
absence of proof to the contrary, there is the presumption that the
majority secured by the Union in the election of January 20, 1936,
continued. The respondent relied at the hearing rather upon the fol-
lowing defenses: (1) That the Union's demand at all times was that
the respondent sign a contract, which the respondent is not required
to do by the Act; (2) that the Union's demand was for a closed-shop
contract which the respondent is not required to accede to; (3) that
the signing of a contract with the Union would be a violation of the
Act in that it would grant a preference to the Union over another
labor organization within the plant; and (4) that it did bargain
collectively with the Union.
The first defense of the respondent is shown to be invalid by the
above recital of facts concerning the meetings between the respondent
and the union committee. In the meeting of October 9, at least, the
respondent in addition to refusing to sign an agreement, also refused
to negotiate concerning an agreement. We do not consider it necessary
in this case to determine whether or not an employer who refuses to
enter into a signed agreement has bargained collectively. It is suffi-
cient to state that, since the respondent's own interpretation of the
refusal to sign an agreement on October 9 included a refusal to nego-
tiate, it is apparent that throughout the negotiations the respondent
had no intention of negotiating any agreement with the Union.
The proposed contract of September 28, 1936, contained a closed-
shop provision. As respondent and its counsel well know, the incor-
poration of such a provision in a proposed contract does not indicate
that the Union will not accept a contract without such a provision.
No closed-shop provision was incorporated in the proposed agreement
of February 3, 1936, and there was no discussion of this provision
of the agreement in any of the so-called collective bargaining meet-
ings prior to October 6, 1936. At that time Jared stated he would
never sign an agreement requiring a closed shop. The minutes of
this meeting do not indicate that the union committee took the posi-
tion that an agreement without this provision would not be
acceptable.
The third defense of the respondent requires no discussion. The
Act requires negotiations by an employer, with a view to reaching
DECISIONS AND ORDERS 183
an agreement, with the organization representing the majority of
his employees to the exclusion of all other possible representatives.
By express provision, such a majority representative is the exclusive
representative of all the employees.
Under the fourth ground of defense the respondent introduced
in evidence records of meetings with shop committees of the Union,
representing various departments. We concede that, as a result of
the meetings, some adjustments in wages and working . conditions
were made by the respondent. These agreements, however, were not
reduced to writing, nor made for any definite period of time. When
the respondent acceded to the requests, it issued a bulletin which it
placed on its bulletin board stating that the enumerated changes
would be put into effect. Such a procedure by the respondent is
clearly consistent with the respondent's policy of dealing with a
committee composed of its employees, but refusing to deal with a
labor organization, especially with one affiliated with the American
Federation of Labor, whether the chosen representative of its em-
ployees or not. A procedure such as this does not fulfill the require-
ments of collective bargaining imposed by the Act.
We find that the respondent in refusing to negotiate concerning
an agreement with the Union, did, after February 11, 1936, and on
September 28, October 6, and October 9, 1936,' refuse to bargain col-
lectively with the Union as the exclusive representative of its pro-
duction and maintenance employees.
The respondent by refusing to bargain collectively with the Union
has interfered with, restrained, and coerced its employees in the exer-
cise of their right to self-organization, to form, join, and assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose
of collective bargaining and other mutual aid and protection.
C. The strike of October 12, 1936
After the collective bargaining committee reported to the Union
membership the results of the meeting with the respondent on Octo-
ber 9, 1936, a strike vote was taken and carried. On October 10,
1936, the Union addressed a letter to the respondent stating in part:
For the past three years a committee representing the Enamel
Workers Union No. 18630 of Moundsville, W. Va., affiliated
with the American Federation of Labor have repeatedly en-
deavored to negotiate an agreement with the United States
Stamping Company covering rates of pay, wages, hours of em-
ployment, and other conditions of employment for employees
of your Company, but we have been unable to arrive at a
satisfactory understanding to date.
80535-38--13
184 NATIONAL LABOR RELATIONS BOARD
The proposal submitted by our organization was in no way an
ultimatum, it was merely the basis on which we desired to open
negotiations and carry through to a satisfactory conclusion; this
the management has refused to do.
At a special meeting held Saturday, October' 10, 1936, the
entire proceedings was explained to the employees and by a
substantial vote it was decided that work would cease Monday
morning October 12, 1936, until at such time we could arrive
at a satisfactory understanding on the issues involved.
We are willing to meet with the management at any time to
discuss the matter and endeavor to arrive at a satisfactory
understanding.
At the time of the hearing the Union had not voted to terminate
the strike, although the respondent was then employing a greater
number of persons in the plant than were employed at the time the
strike was called. Of the 394 persons on the respondent's pay roll
on October 10, 1936, the last working day prior to the strike, ap-
proximately 240 had not returned to work in the plant at the time
of the hearing. Approximately 11 of the 240 strikers had received
substantially equivalent employment elsewhere.6
At the hearing counsel for the Board moved that the complaint be
amended to allege that the strike of October 12, 1936, was caused by
the respondent's refusal to bargain collectively and that the striking
employees should, accordingly, be reinstated. The motion was
granted by the Trial Examiner despite objections by counsel for
the respondent. These objections were, in substance, that the facts
stated in the amendment were not based on a charge as required
by the Act and that the cause of the strike had been determined by
a decree of the Circuit Court of Marshall County, West Virginia,
that such decree was entitled to full faith and credit and made the
cause of the strike res judicata.
The record shows that on November 11, 1936, the respondent filed a
bill in equity in the Circuit Court of Marshall County, West Vir-
ginia, seeking an injunction against the Union and certain individ-
uals who were participating in the strike. In the bill, in addition to
allegations of unlawful acts on the part of the defendants in the
conduct of the strike, the respondent alleged that the strike was
caused by the refusal of the respondent to sign the agreement sub-
mitted by the Union on September 28, 1936.
8 The record shows that Homer Kirby, one of the striking employees , returned to work
In the plant in December 1936 but was discharged in January 1937 . At the hearing coun-
sel for the Board moved to amend the complaint to allege that the respondent by dis-
charging Kirby in January 1937 had engaged in an unfair labor practice within the mean-
ing of Section 8 (3) of the Act . The motion was denied by the Trial Examiner. We,
accordingly , make no findings concerning the discharge of Homer Kirby.
DECISIONS AND ORDERS 185
The decree of the Circuit Court entered February 1937 prohibited
the Union and the persons named in the petition from doing certain
acts in connection with strike activities. A finding by this Board
that the strike was caused by the failure of the respondent to bargain
collectively will in no wise be a refusal to grant full faith and credit
to the decree of the court. The allegation in the respondent's peti-
tion to the Circuit Court as to the cause of the strike was immaterial
to the relief sought, and, in addition, the Board was not a party to
the proceedings. For these reasons, the principle of res judicata is
inapplicable.
The respondent's objection that the amendment is not based on
a charge is also untenable. The original complaint, in conformity
with the charge, alleged that a strike occurred at the respondent's
plant on October 10, 1936, without stating the cause of the strike.
Even though the complaint had not been amended, the Board could
have found that the strike was caused by the respondent's refusal
to bargain collectively and ordered that the respondent reinstate its
striking employees.
We find that the strike at the respondent's plant on October 12,
1936, occurred because of the respondent's refusal to bargain collec-
tively with the Union as the exclusive representative of the main-
tenance and production employees of the respondent.
D. The alleged discharges
Sylvester Riggs and William, Bane, the two employees alleged to
have been discharged pursuant to an unfair labor practice within
the meaning of Section 8 (3) of the Act, had for some years previous
been employed as night watchmen by the respondent. During the
period when the respondent was operating under the National In-
dustrial Recovery Act, Riggs and Bane, who belonged to the Union,
were told by one of the respondent's supervisory employees that they
would have to resign from the Union or seek other employment.
Both withdrew from membership in the Union at that time and have
never subsequently rejoined the Union. During the strike at the
respondent's plant in 1935, both of these men were laid off and other
watchmen put in their places, but they were reemployed as watchmen
on the termination of the strike.
Riggs and Bane were not laid off or discharged at the time of
the strike of October 1936 but continued to act as watchmen until
February 1937. During this time windows were broken in the re-
spondent's plant, and nails and tacks were placed on the respondent's
property. The respondent does not claim that these men committed
these acts, but complains that the men failed to find out who had
committed the acts.
186 NATIONAL LABOR RELATIONS BOARD
On February 6, 1937, Jared told Bane, "I am going to make a
change." According to the testimony of Jared, he offered Bane the
job of taking ware off a chain coming from an oven, Bane to begin
work the following Wednesday. Jared likewise told Riggs on Feb-
ruary 7, 1937, that the respondent was going to make a change and
offered to find Riggs some other suitable work within the plant.
Both employees arranged to return to see Jared on February 14, 1937,
to consider other positions. Jared did not keep the appointment he
had made to meet the two men on February 14, Jared testifying that
he was ill at home on that day. On the following day, Riggs and
Bane joined the picket line.
By offering other positions in the plant to Riggs and Bane at the
time they were relieved of their duties as watchmen, Jared indi-
cated that he did not intend to discharge them but merely to change
their positions. The respondent offered proof of general incom-
petency and disability of these men for positions as watchmen. We
believe the evidence clearly establishes the fact that Riggs and Bane
were relieved of their duties as watchmen because the respondent
feared that they were too sympathetic towards the Union's cause
to be trustworthy watchmen. However, we do not believe an em-
ployer, who during a strike relieves a watchman from his duties as
such for this reason, has engaged in an unfair labor practice within
the meaning of Section 8 (3) of the Act.
We will accordingly dismiss the allegations of the complaint that
the respondent discharged and refused to reinstate Sylvester Riggs
and William Bane pursuant to an unfair labor practice within the
meaning of Section 8 (3) of the Act.
E. The use of labor spies
The complaint, as amended, alleges that the respondent from
November 1935 to September 1936 employed certain agencies and
individuals for the purposes of espionage, intimidation, interference,
spying, and keeping under surveillance the activities of its employees
and the Union and for the further purpose of removing the president
of the Union from the community.
Earnshaw admitted at the hearing that he engaged the services
of National Corporation Service, Inc., ". . . a service that keeps you
informed as to what takes place around your plant . . ." in November
1935. In February 1936 National Corporation Service, Inc., put a
secret operative named Earl Trombley in the, respondent's plant as
a production worker. Trombley worked in the plant until April
29, 1936, "hen he was laid off because Earnshaw claimed he had
secured all the information he wished. Trombley however was re-
employed as a production employee by Jared on August 23, 1936, be-
r
DECISIONS AND ORDERS 187
cause the respondent had heard there was some dissension among the
employees. Trombley continued working to Septembkl 5, 1936, ap-
parently being removed by his employer because members of the
Union had discovered his identity. The respondent continued the
services of National Corporation Service, Inc., until October 1936.
Earnshaw admitted that the respondent had used similar services in
the past, but denied that it had used such services since October 1936.
Earnshaw testified that the principal reason these services were
employed was to detect sabotage within the respondent's plant. In
addition, respondent through its counsel took the position that the
respondent has every right to use such services. Some evidence,
which the respondent claims shows sabotage by union members, was
introduced at the hearing. The record indicates that during the
year 1936 a large quantity of finished enamelware contained black
specks, which rendered it unfit for sale. The only proof or attempt
to prove that this substance was put into the enamel by union mem-
bers was, testimony of selectors that within a short time after the
strike practically all specking had disappeared. It is sufficient to
state that, in our opinion, there is no proof in the record to show
that this defect was caused by the putting of any foreign substance
in the enamel, or if it was, that it was put there by members of the
Union. In addition, there is no proof that National Corporation
Service, Inc., was employed in connection with this alleged sabotage.
Throughout the period from November 1935 to October 1936,
unsigned reports were mailed to Earnshaw or handed to him at
various places in Moundsville or Wheeling, West Virginia. These
reports, received sometimes as often as two or three times daily
during the time Trombley was employed in the plant, contained
detailed information concerning the respondent's employees, includ-
ing information on their labor affiliations, reports of union meetings,
and activities of members of the Union. Trombley, whose actual
identity and purpose for being within the respondent's plant had
been carefully concealed, having joined the Union in March 1936,
was of course in a position to secure this information for the re-
spondent. It is clear that the Act makes it an unfair labor practice
for the respondent to use such services for the purposes of inter-
fering with, restraining, or coercing its employees from the rights
guaranteed to them by the Act.
We find that the respondent by the use of the services of National
Corporation Service, Inc., has interfered with, restrained, and co-
erced its employees in the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activi-
ties, for the purposes of collective bargaining and other mutual aid
and protection.
188 NATIONAL LABOR RELATIONS BOARD
The record does not contain any competent evidence to prove the
allegation of the complaint that the respondent employed National
Corporation Service, Inc., for the purpose of removing the president
of the Union from the community. We, accordingly, make no find-
ing of an unfair labor practice with respect to this allegation.
IV. THE EFFECT OF THE RESPONDENT'S . UNFAIR LABOR PRACTICES ON
COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and with foreign countries, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
THE REMEDY
The record indicates that approximately 240 of the respondent's
striking employees have not yet been reemployed by the respondent.
Since the strike was caused by the respondent's unfair labor prac-
tices, these striking employees must be reinstated in order to effec-
tuate the purposes of the Act.
The respondent declares that since the strikers have been guilty
of certain acts of trespass, property damage, and assault on non-
striking employees, the respondent will never reemploy these persons
and contends that it cannot be compelled to do so. The respondent
relies on the decree of the Circuit Court of Marshall County in the
injunction proceedings as establishing such guilt. In addition, it
offered certain grand jury indictments returned to the February
1937 term of the Circuit Court of Marshall County as further proof.
It appears that damage to the respondent's property consisted of a
few broken windows and some injury to automobiles and automobile
tires. No acts were committed in excess of those which often accom-
pany a bitter strike.
The Board's power to order the reinstatement of employees is
equitable in nature, to be exercised in the light of all the circum-
stances of the case. Here the respondent itself has engaged in un-
fair labor practices contrary to the express provisions of the Act. It
was this violation of the law of the land which led directly to the
strike. Weighing all these factors, and without condoning the acts
charged to the employees in question, we feel that they should not
be barred from reinstatement.
Furthermore, the record indicates that the respondent now em-
ploys certain persons who have been guilty of assaults or, against
DECISIONS AND ORDERS 189
whom warrants alleging the commission of acts of violence have been
issued. For this reason we cannot believe that the respondent's real
objection to the reemployment of the strikers in question is based
upon their responsibility for acts of violence.7
We will accordingly order the respondent to offer reinstatement to
all of its employees who were on the pay roll on October 10, 1936,
and who ceased work because of the strike, discharging if necessary
those persons who have been hired by the respondent since October
10, 1936.
As previously stated, the respondent offered other positions to
Riggs and Bane when they were relieved of their duties as watch-
men and it was for the purpose of discussing these positions that
the men returned to the respondent's plant on February 14, 1937.
However, before they had seen Earnshaw they joined the other em-
ployees in the strike. We find that since the respondent contemplated
using Riggs and Bane in other capacities, they had not ceased to be
employees of the respondent at the time they joined in the strike.
This being so, they are also entitled to reinstatement in the same
manner as the other strikers.
By returning to work in the respondent's plant in December 1936,
Homer Kirby lost his status as a striker. We will not, therefore,
order the respondent to reinstate Homer Kirby.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW '
1. Enamel Workers Union No. 18630 is a labor organization, with-
in the meaning of Section 2 (5) of the National Labor Relations
Act.
2. The production and maintenance employees of the respondent
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
3. Enamel Workers Union No. 18630 was on February 11, 1936, and
has remained the exclusive representative of employees in such unit
for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the National Labor Relations Act.
4. The respondent by refusing to bargain collectively with the
Union since February 11, 1936, and on or about September 28, October
6 and October 9, 1936, has engaged in and is engaging in unfair-
labor practices, within the meaning of Section 8 (5) of the National
Labor Relations Act.
P See Matter of Kentucky Firebrick Company and United Brick and Clay Workers of
America, Local Union No. 510, 3 N. L R. B 455.
190 NATIONAL LABOR RELATIONS BOARD
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the National
Labor Relations Act, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (1) of the
National Labor Relations Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the National Labor Relations Act.
7. The respondent did not discriminate with regard to the hire and
tenure of employment of Sylvester Riggs and William Bane, within
the meaning of Section 8 (3) of the National Labor Relations Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
United States Stamping Company, and its officers, agents, successors,
and assigns shall:
1. Cease and desist: (a) From refusing to bargain collectively with
Enamel Workers Union No. 18630 as the exclusive representative of
its production and maintenance employees; (b) from, either directly
or indirectly, engaging in any manner of espionage or surveillance
or engaging the services of any agency or individuals for the purpose
of, or in any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining and other mutual
aid and protection.
2. Take the following affirmative action which the Board finds
will effectuate the" purposes of the National Labor Relations Act
(a) Upon application, offer reinstatement with all rights and privi-
leges previously enjoyed, to Sylvester Riggs and William Bane
and to all of the respondent's employees who were on the pay roll on
October 10, 1936, and whose work ceased because of the strike, with
the exception of Homer Kirby, discharging if necessary those per-
sons who have been hired by the respondent subsequent to October
10, 1936; (b) make whole those employees entitled to reinstatement,
pursuant to Section 2 (a) herein, for any losses they may suffer
by reason of any refusal of their application for reinstatement
pursuant to Section 2 (a) by payment to each of them, respectively,
of a sum equal to that which each of them would normally have
earned as wages during the period from the date of any such re-
fusal of their, application for reinstatement to the date of reinstate-
DECISIONS AND ORDERS 191
ment, less the amount , if any, which each , respectively , may earn
during said period; ( c) post notices in conspicuous places through-
out the plant stating that the respondent will cease and desist as
aforesaid and keep said notices posted for a period of at least thirty
(30) consecutive days from the date of posting; and ( d) notify
the Regional Director for the Sixth Region in writing within ten
(10) days from the date of this Order what steps the respondent
has taken to comply herewith.
And it is further ordered that the allegations of the complaint
which allege that 'the respondent discharged and refused to rein-
state Sylvester Riggs and William Bane pursuant to an unfair labor
practice , within the, meaning of Section 8 ( 3) of the National Labor
Relations Act be, and hereby are , dismissed.
[SAME TITLE
AMENDMENT TO ORDER
February 17, 1988
Paragraph 2 of the Order of the National Labor Relations Board
issued in the above-entitled case on February 10, 1938, is hereby
amended to read :
2. Take the following affirmative action which the Board finds
will effectuate the purposes of the National Labor Relations Act:
(a) Upon request, bargain collectively with Enamel Workers
Union, No. 18630 as the exclusive representative of its produc-
tion and maintenance employees; (b) upon application, offer
reinstatement with all rights and privileges previously enjoyed,
to Sylvester Riggs and William Bane and to all of the respond-
ent's employees who were on the pay, roll on October 10, 1936,
and whose work ceased because of the strike, with the exception
of Homer Kirby, discharging if necessary those persons who
have been hired by the respondent subsequent to October 10,
1936; (c) make whole those employees entitled to reinstatement,
pursuant to Section 2 (b) herein, for any losses they may suffer
by reason of any'refusal of their application for reinstatement
pursuant to Section 2 (b) by payment to each of them, respec-
tively, of a sum equal to that which each of them would normally
have earned as wages during the period from the date of any
such refusal' of their application for reinstatement to the date of
reinstatement, less the amount, if any, which each, respectively,
may earn' during said period; (d) post notices in conspicuous
places throughout the plant stating that the respondent will cease
and desist as-aforesaid and keep said notices posted for a period
of at least thirty (30) consecutive days from the date of pasting;
and (e) notify the Regional Director for the Sixth Region in
writing within sixteen (16) days from the date of this Order
what steps the respondent has taken to comply herewith.
n