Valley Mould and Iron Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1940

20 N.L.R.B. 211 (N.L.R.B. 1940)

In the Matter Of `ALLEY MOULD AND IRON CORPORATION and STEEL
WORKERS ORGANIZING COMMITTEE FOR AMALGAMATED ASSOCIATION
OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA , LODGE No.
1029, AFFILIATED WITH THE CONGRESS OF INDUSTRAL ORGANIZATIONS
Case No. C-1307.-Decided February 5, 1940
Iron Ingot Manufacturing Industry-Interference, Restraint, and Coercion:
derogatory, disparaging, and anti-union statements; cautioning and advising
employees against the union ; soliciting individual employees during strike-
settlement negotiations to return to work in disregard of the union's instruc-
tions to its members ; threats of loss of employment unless employees returned
to work; abusive statements to president of the union; threatening the presi-
dent of union with loss of employment and depriving him of his regular Sun-
days off ; persuading and cajoling employees away from the union ; refusing to
bargain with certified union ; instigating and sponsoring company-dominated
union ; ordered to restore employee's former privilege of taking his regular
day off-Unit Appropriate for Collective Bargaining: production and main-
tenance employees exclusive of clerical and supervisory employees; determined
by previous decision of the Board-Representatives: proof of choice : certifi-
cation in prior representation case-Collective Bargaining: refusal of : by re-
fusing to recognize certified union ; by refusing to submit genuine counterpro-
posals to union ; order to bargain based on majority at date of refusal to,
bargain-Company-Dominated Union: formation by company in 1933 of an
Employees' Representation Plan ; instigation of similar organization by vice
president of company at Plan dissolution meeting in 1937; favoritism to and
support of, by expressing opposition to competing union, by interfering with
employees' right of self-organization, by refusing to bargain collectively with,
competing union ; disestablished as an agency for collective bargaining.
Mr. Jack G. Evans, for the Board.
Pope & Ballard, by Mr. Merrill Shepard, of Chicago, Ill., for the
respondent.
Mr. James G. Thimmes and Mr. John J. Brownlee, both of Chicago,
Ill., for Lodge No. 1029.
Mr. Walker Butler, of Chicago, Ill., for the Independent.
Mr. Jerome I. Macht, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Steel Workers Organizing Committee
for Amalgamated Association of Iron, Steel and Tin Workers of
20 N. L. R. B., No. 18.
211
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North America, Lodge No. 1029, affiliated with the Congress of Indus-
trial Organizations, herein called Lodge No. 1029, the National Labor
Relations Board, herein called the Board, by Leonard C. Bajork,
Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint dated January 23, 1939, against Valley Mould
and Iron Corporation, herein called the respondent, alleging that the
respondent had engaged in and was eligaging,in unfair labor practices
affecting commerce, within the meaning of Section 8 (1), (2), 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, accompanied
by notice of hearing, were duly served upon the respondent, Lodge
No. 1029, and Valley Mould Independent Employees' Union,, South
Chicago Works, herein called the Independent.
In respect to the unfair labor practices, the complaint alleged, in
substance, (1) that the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, (2) that on April 22, 1938, and at all times there-
after, the respondent refused to bargain with Lodge No. 1029 as the
exclusive representative of its employees in an appropriate unit, al-
though Lodge No. 1029 represented a majority of such employees,
and (3) that on or about May 10, 1937, and thereafter, the respondent
instigated, sponsored, dominated, and interfered with the formation
and administration of the Independent, a labor organization, and
contributed financial and other support to it.
On January 27, 1939, the Independent filed with the Regional Di-
rector a written motion to intervene, which alleged, in substance, that-
the Independent was a bona fide labor organization. The motion was
granted by the Regional Director on January 27, 1939, and the Inde-
pendent was made a party to this proceeding.
On January 24, 1939, the Independent filed a written motion for
continuance of the hearing with the Regional Director and on the
same day the respondent filed a motion for extension of time within
which to answer and otherwise plead to the complaint and for post-
ponement of date of hearing. On January 27, 1939, the Regional
Director ordered that the hearing be continued from January 30, 1939,
to February 16, 1939.
The Independent filed an answer dated January 27, 1939, denying
the allegations contained in the Board's complaint in so far as said
allegations affected it. The respondent filed an answer dated Febru-
ary 4, 1939, denying that the respondent had engaged in or was engag-
ing in the alleged unfair labor practices and requesting that the
complaint be dismissed and the proceeding discontinued.
Lodge No. 1029 filed a motion dated February 10, 1939, requesting
a continuance of the hearing, and on February 26, 1939, the Regional
VALLEY MOULD AND IRON 'COR'PORAT 'ION 213
Director ordered the hearing postponed until further notice. On April
10, 1939, all parties were duly served with further notice of hearing.
The Independent filed a written motion dated April 11, 1939, to post-
pone the hearing, and on April 13, 1939, the Regional Director ordered
that the hearing be postponed until May 1, 1939, and said order was
duly served on all parties.
Pursuant to notice, a hearing was held in Chicago, Illinois, com-
mencing May 1, 1939, and concluding on May 3, 1939, before Mapes
Davidson, the Trial Examiner duly designated by the Board. The
Board, the respondent, and the Independent were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evi-
dence bearing upon the issues was afforded all parties.
At the commencement of the hearing, the respondent moved to strike
from the Board's complaint certain portions of paragraph 7 thereof,
and renewed its motion to make more definite and certain the allega-
tions in the Board's complaint. The Trial Examiner denied the mo-
tions. The rulings are hereby affirmed.
At the commencement of the hearing, counsel for the respondent
objected to the admission of any testimony relating to events occurring
prior to July 5, 1935, the date of the passage of the Act. The Trial
Examiner ruled such testimony to be admissible purely as history,
and as background. That ruling is affirmed. During the course of
the hearing the Trial Examiner made various other rulings on motions
and on objections to the admission of evidence. The Board has re-
viewed these rulings and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On June 9, 1939, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all parties, finding that the
respondent had engaged in and was engaging in. unfair labor prac-
tices within the meaning of Section 8 (1), (2), and (5) of the Act. He
recommended, inter alia, that the respondent cease and desist from
engaging in the activities constituting the unfair labor practices; that
it withdraw recognition from the Independent and disestablish it as
representative of the employees of the respondent; and that, upon
request, it bargain collectively with Lodge No. 1029 as the exclusive
representative of the respondent's production and maintenance em-
ployees, in respect to rates of pay, wages, hours of employment, and
other conditions of employment. Exceptions to the Intermediate Re-
port were filed by the respondent and by the Independent on July 5,
1939. Briefs in support thereof were filed by the respondent and the
Independent on July 29, 1939, and August 1, 1939, respectively.
On November 2, 1939, pursuant to notice, a hearing was held in
Washington, D. C., for the purpose of oral argument. The respond-
283031-41-yol. 20-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
ent, the Independent, and Lodge No. 1029 appeared by counsel and
presented oral argument to the Board.
The Board has considered the exceptions to the Intermediate Report
filed by the respondent and by the Independent, and the briefs in
support thereof and, in so far as they are inconsistent with the findings,
.conclusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York corporation, having its principal
office and place of business in Hubbard, Ohio. It is engaged in the
production, sale, and distribution of pig-iron ingot moulds and stools
at its plants in Hubbard, Ohio, and Chicago, Illinois, the latter plant
being the plant involved in this proceeding. It also maintains sales
offices or representatives in Hubbard, Ohio, and Chicago, Illinois.
During the year 1938 the respondent, in the operation of the
Chicago plant, purchased and received the following raw materials :
1,500 tons of sand delivered from New Jersey; 500 tons of sand deliv-
ered from within Illinois; 200 tons of blacking delivered from Penn-
sylvania; 150 tons of soapstone delivered from Virginia; 1,000 tons
of clay delivered from within Illinois; and 29,000 gallons of fdel'oil
from Indiana. Hot metal is obtained from an adjoining plant.
In the year 1938 the respondent sold and distributed approximately
45,000 tons of finished products, entirely consisting of ingot moulds
and stools, manufactured at its Chicago plant. Approximately 72
per cent of the finished products manufactured at the Chicago plant
were shipped to and distributed in States other than the State of
Illinois, principally in Indiana, Missouri, and Minnesota, the balance
being sold and distributed within the State of Illinois.
The respondent in its answer admitted that it causes nnnd has con-
tinuously caused large quantities of raw materials used in its oper-
ations, and large quantities of products manufactured by it, to be
sold and transported in interstate commerce.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge No. 1029, is a labor organization affiliated with the
Congress of Industrial Organizations, admitting to membership
employees of the respondent at its Chicago plant.
Valley Mould Independent Employees' Union, South Chicago
Works, is an unaffiliated labor organization, incorporated under the
laws of the State of Illinois, admitting to membership employees of
the respondent.
VALLEY MOULD AND IRON 'CORPORATION' 215
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In June 1933 the respondent instituted an Employees' Representa-
tion Plan 1 at its South Chicago plant, which existed under that name
until on or about April 16, 1937. The Steel Workers Organizing
Committee commenced its organization of the respondent's employees
in July 1936, when it held open meetings and passed out union leaflets.
Its local, Lodge No. 1029, Amalgamated Association of Iron, Steel and
Tin Workers of North America, obtained its charter on September
15, 1936.
In the spring of 1937 Joe Cook, president of Lodge No. 1029, heard
that a series of conferences of employees' representation plans had
been held in the steel industry and that another meeting was scheduled
to take place in Gary, Indiana. He so informed Fitzgerald, the
chairman of the respondent's Employees' Representation Plan, and
about 1 hour afterward Shank, the superintendent, came to Cook and
questioned him about the meeting. After ascertaining what Cook
knew Shank said that he would-see if the "boss," Swab, knew any-
thing about it. At noon Swab, the vice president, called Cook into
another department of the plant and asked him what lie knew about
the meeting and then advised Cook against attending, stating that
if it was a "representative plan" meeting he (Swab) would certainly
know something about it. Swab further said that he would call
Illinois Steel and ascertain what they knew. He informed Cook that
he thought this was some of John L. Lewis' stuff and told Cook that
he had no business there, that he was getting along all right, and
that "the silver-tongued orators will deceive the very best of us, so
if I were you I would stay away." Swab and Shank did not recall
the conversations, although they both knew about the plan meetings,
but after further questioning by the respondent's attorney Swab de-
nied having had such a conversation with Cook, saying that the reason
he remembered he did not have such a conversation was "it didn't con-
cern me." The record reveals that Swab had been very much con-
cerned with employees' representation plans since 1933 and such, a
denial is patently unbelievable. We do not credit it.
In about March of 1937 as the paymaster gave out checks to the
employees he distributed to them copies of a book entitled "Labor and
Rackets," which told about "racketeering unions." 2
During the spring of 1937 Cook was called into the office by Shank
on several occasions and questioned about Lodge No. 1029. At one
'Further reference to this Plan will be made in Section III C. infra.
2Cf. Matter of'Yale & Towne Manufacturing Company and United Electrical & Radio
Workers-of America, Local No. 227, C. I. 0., 10 N. L. R. B. 1321.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting Shank asked him how he was getting along with his "little
blue cards" and told him that "we didn't think that you would do
that," that Roberts, his foreman, always had a high regard for him
and said that he was a good, loyal than. Whereupon Cook wanted
to know what his activities had to do with his loyalty, and he was
told to see Swab. Shank did not recall this conversation. A few
days later Shank informed Cook that Swab wished to see him in his
office. Swab questioned Cook as to "how much dues the union paid"
and told Cook that "it didn't make sense to him why a man should
have to pay for the right to work." He told Cook of his experiences
and asserted that he had refused to join a union because he always
thought he could get along without it although many of his com-
panion workers did join.' He;further informed Cook that as the re-
spondent was a small company its employees did not have to do what
workers in other mills were doing because their wages and working
conditions were governed by the wages and working conditions of
the United States 'Steel Corporation. Swab at the hearing did not
recall this conversation, although he recalled some remarks about dues
being made in his office and he also recalled telling Cook about his
experiences. .
During the conferences concerning Lodge No. 1029, which Shank
called Cook to in April and May of 1937, Shank persistently told
Cook that "somebody" had been threatened because he would not
join Lodge No. 1029. When asked who had been threatened or who
had done the threatening, Shank at no time gave Cook any names.
The last time Shank called Cook into his office he stated that he was
holding Cook accountable for it. Cook informed Shank that the
next time he called him Cook wanted to see the parties and unless
he could produce the evidence he felt that it was "something against
the organization" and himself. He was not called in again. Shank
recalled only one conversation with Cook about Lodge No. 1029. at
which he told Cook that he would appreciate it if coercion and intimi-
dation would cease. He did not deny that he made the foregoing
statements to Cook. The respondent did not call any witnesses to
substantiate the accusations Shank made against Cook and Lodge
No. 1029.
After receiving letters from Lodge No. 1029 and the Steel Workers
Organizing Committee dated March 24, 1937, and April 15, 1937,
respectively, requesting conferences with the respondent, for the pur-
poses of collective bargaining, Swab, on April 16, 1937, called a
meeting of the Employees' Representation Plan in the plant office.
He spoke to the representatives about rumors that Lodge No. 1029
was organizing at the plant and asked each of the men individually if
lie knew anything about Lodge No. 1029. After asking each man
VALLEY MOULD ANDIRON 'COR'PORATION 217
present, he came to Joe Cook and said, "Joe, do you know anything
about this?" Cook answered that he was the president of Lodge
No. 1029, which had a membership of 75 or 80 per cent of the em-
ployees in the plant. Swab stated that "it didn't make sense to him
why men should want to pay, have to pay dues to work, for the right
to work, and why we should have outsiders coming in telling us
what to do." Cook informed Swab that the men were dissatisfied
with the Representation Plan, whereupon Swab said, "If this business
isn't stopped somebody is going to be asked to take a vacation." As
he was looking at Cook, Cook said, "I presume that's me." Swab
said nothing further. Swab denied making these statements but said
there was some discussion by one of the other employees. However,
in the light of the general anti-union attitude of Swab, as disclosed
by the record, and the surrounding circumstances, we find that Cook's
version of the conversation is entitled to belief.
After further requests by Cook and Lodge No. 1029 the respondent
granted Lodge No. 1029 a conference on or about May 18, 1937.
Three meetings were held between the respondent and Lodge No.
1029. Thereafter Lodge No. 1029 called a strike, effective May 30,
1937, because it could not obtain an agreement from the respondent.
During the strike, which lasted until July 9, 1937, and while Lodge
No. 1029 was meeting with the respondent in an effort to settle the
controversy and arrive at an agreement concerning wages, hours, and
other working conditions, officials and agents of the respondent
urged individual employees to ignore Lodge No. 1029 and its leader-
ship and to return to work. Some employees were threatened with
loss of employment with the respondent unless they so returned.
Foreman Butler urged Marko Pegkoach, a striking employee, to
return to work, and upon his refusal informed him that he would
be "sorry some day." Butler admitted that he asked Pegkoach to
return but denied that he made any threats. Butler also urged
Peter Dancola, Joseph Szuflita, and Angelo Gjeldum, among others
on the picket line, to return to- work. At about this time Superintend-
ent Shank asked Luke Patrick, an active member of Lodge No. 1029,
to persuade the other boys to "cut out the foolishness" and come back
to work. Also, Swab, the respondent's vice president, approached
striking employees on the picket line, including Clarence Mabe and
a man called "Big George," and told them they were too fine to carry
signs and placards around and asked them why they did not pull off
the signs and return to work. Foreman Tom Wolff urged Sam
Jukich to return to work and threatened him with loss of his job
unless he did. so. Likewise, Matt Hrstich, a supervisory employee,
urged Angelo Gjeldum to return to work, telling him that many of
the members of Lodge No. 1029 would be rejected as employees for
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physical reasons after examination by the respondent 's doctor.
Finally, on or about July 6, 1937 , Swab received a committee of
employees representing the Independent , headed by William H.
Clarke and Charles McLean, who stated that the Independent repre-
sented a majority of the employees and that the employees were
willing to return to work on the same conditions that existed before
the strike . This committee was escorted through the picket lines
into the plant by means of police squad cars.
It is apparent from the above facts that the respondent, through
its officials , Swab, Shank , and other supervisory employees , engaged
in a course of action designed to deprive the employees of their
right to self -organization under the law. Such solicitations were
well calculated to and did intimidate employees in their organiza-
tional work.
A few days after the strike, which terminated on July 9, 1937, Cook
found that his day off had been changed from Sunday to Tuesday
of every week . He asked Foreman McCracken the reason for the
change in his day off . McCracken answered , "Well, it was because
you fellows run me off the picket line during the strike . That is
why I did it and it is going to stand like that ." Cook, having
seniority over the other men, had been allowed Sunday off for 4
years prior to the strike . When further questioned by Cook, who
cited the seniority provision in the respondent 's statement of labor
policy, McCracken gave another excuse for changing Cook's day off,
saying that it was because he was colored and that "it doesn't come
from me and it doesn't come from Mr. Shank, it comes from the
higher office." At the hearing McCracken denied making these
statements but testified that the reason he changed Cook's day off
was because "younger fellows" wanted Sundays off. However, in
the light of the general anti-union attitude of McCracken, as dis-
closed by the record, the findings of the Trial Examiner with respect
to this incident , and the surrounding circumstances , we feel that
Cook's version of the conversation is the true one.
Cook protested to Shank, and a few days afterward Foreman
Pickering notified him as follows : "In reference to the argument
that you fellows had, that will have to stand , because you fellows
are so strong in number ." When Pickering was asked by the re-
spondent 's counsel if he made such a statement, he answered, "I
didn't make that statement as it is in the record, no sir." He stated
that he did not recall a discussion with Cook in regard to his
seniority in the plant but that "Mr . Cook asked me if he could have
Sunday off and I thought he was referring to his being restored to
his regular day of Sunday and I said, `No, I can't say as to
VALLEY MOULD AND IRON OORPORATION 219
that,' * * *." At any event, Cook was denied his regular Sun-
day off. We find that it was because of his membership in and
activities in behalf-of Lodge No. 1029.
In January 1938 Foreman Butler called John Krafcisin, a member
of Lodge No. 1029, into his office and questioned him as follows :
-How long did you work for this company? How do I treat you?
Do we get along fine? I got a notion to fire you." Butler then accused
Krafcisin of tearing up a report without turning it into his office
and when Krafcisin denied it Butler said that he could not prove
it. Butler then said, "Well, the C. I. 0. hurt you, doesn't it?"
When Krafcisin said that he intended to remain in the union Butler
told him to go home. That night at 7 o'clock Butler came to Kraf-
cisin's house and told him to go back to work at 12 o'clock again.
Butler denied making the foregoing statement concerning the C. I. 0.
but admitted that he visited Krafcisin's house after Krafcisin had
been sent home and asked him to return to work at 12 o'clock that
night. We find, as did the Trial Examiner, that Butler made the
statement concerning the C. I. 0. attributed to him by Krafcisin.
In March 1938 Foreman Thomas Wolff approached Peter Dancola,
a member of Lodge No. 1029, who had been employed by the re-
spondent since 1922, and told him that "the C. I. 0. was dead," that
there was "no C. I. 0. any more." Swab also talked to Dancola and
asked him who "poisoned his mind." Swab referred to "outside
organizers" and mentioned Joe Cook. Swab stated "those fellows
on the outside walked in and organized here . . . We could have
our home here as one family . . ." Swab testified that some mention
had been made to the effect that Dancola's mind may have become
poisoned, but that this concerned another matter and that no men-
tion of union organizers was made during the conversation. The
Trial Examiner, who from his observation of the demeanor of the
witnesses had an opportunity to form a trustworthy opinion of their
credibility, found that Wolff and Swab made the statements attrib-
uted to them by Dancola. We find that the conversations occurred
as set forth above.
In the latter part of March 1938 Foreman McCracken, Brebrich,
a welder, and some other men were in the respondent's washroom
talking about work slacking down and the shutting of the plant.
McCracken stated, "Well, the C. I. 0. 'is causing a lot of that about
things slowing down our manufacturing steel mills." He continued,
with reference to another plant in Chicago Heights, "When they
signed C. I. 0. contract the plant shut down." McCracken testi-
fied that he did not recall this conversation. During this conversa-
tion Brebrich, in the presence of McCracken, pointed to Krafcisin
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and said, "Here 's ' a strong C. I. O. man," and stated further that
when Krafcisin left the plant to work elsewhere -, Swab would not
give him "recommendation C. I. 0." but that Swab would "put good
recommendation" for Brebrich . Nothing further was said. Bre-
brich denied that he made the foregoing statements and McCracken
testified that he did not hear them . The Trial Examiner did Iiot
credit the testimony of McCracken and Brebrich . We find that
McCracken and Brebrich made the statements set forth above. -
On or about July 11, 1938 , Krafcisin stopped at the gate house of the
respondent's Chicago plant, which was shut down at the time, and had
a conversation with William Gaden, the safety supervisor . Krafcisin
inquired when the employees would be going back to work. Gaden
replied, "C. I. O. had got lot to do that slowing down things." When
Krafcisin stated that there was no reason for it Gaden replied, "Well,
look in ]sere in this place , the C. I. O. and another inside union here."
Krafcisin asserted , "Well, I believe men should organize , I believe in
organization ." Whereupon Gaden asked , "Why don't they organize
like they was used to be years ago inside, join the one the inside union
here in the plant used to be. " At the hearing Gaden denied having
such a conversation with Krafcisin and testified that he did not know
of any occasion when Krafcisin came to the plant. The Trial Exam-
iner had occasion to observe the demeanor of the witnesses while
testifying on the witness stand and he found that the above conversa-
tion did occur . In view of the record and the Trial Examiner's find-
ings we feel that the witness Krafcisin is entitled to credence.
On or about July 30, 1938 , McCracken stopped Cook in the middle
of the department and stated , "You have been messing in my business.
If you want to stay you have got to keep your God damn mouth out of
my business ." Asked to give a reason for this statement McCracken
claimed that Cook had told another employee , Bakonda, that Bakonda
was doing too much work and that the American people in the plant
were laughing at him because of that fact. McCracken continued,
"Joe many's the time I saved your God damn job in the past 18
months." Cook wanted to know how his job had been saved and
McCracken answered , "Many a fuss I had with Charlie Swab about
you." When Cook protested that he had done nothing to cause any
fuss, McCracken said, "You know what you have done and you know
what I am referring to." "Well ,", said Cook , "the only thing that I
could imagine that Swab could have against me is that we have
organized a union in here." McCracken said, "That 's exactly it and
it will take a long time for that to get out from under our skin." The
foreman continued , "Joe, don't you think we don't know everything
that is going on in those union meetings ? We have men in there
VALLEY MOULD AND IRON CORPORATION, 221
that will bring us back anything you or anyone else says." Cook
said, "About the only thing said about you was when you made the
remarks about having God damned niggers in the union." McCracken
replied, "Yes, I said that but I didn't mean that for you. I meant
that for that God damned Hank Johnson: you brought out. Johnson
had no business coming into this plant trying to represent white men."
The Johnson thus referred to was at that time organizer for Lodge
No. 1029. Cook protested that his union had no quarrel with a man
on account of his color or religion, and McCracken said, "That's why
I don't like it-it is Socialism." Then McCracken proceeded to up-
braid Cook for having refused to mark up moulds in the course of
work 1 year previously. Cook explained that he had not refused;
that he had only acted in his capacity as an official of Lodge No. 1029
to present a plant grievance about which some of the employees' were
complaining, whereupon Foreman McCracken said "God damn you
and the union too. Joe, I tell you no God damn outsiders are coming
in to tell us how to run this plant. If you want to stay here you had
better keep your niouth shut. If you want to go back to work under
them terms, go ahead." McCracken, in his testimony, admitted repri-
manding Cook, stating that it was because Cook had told Bakonda
not to do too much work. It should be noted that Bakonda was not
called to testify at the hearing. McCracken denied most of the other
testimony, saying-that nothing was said about union organization at
that time. However, McCracken admitted at the hearing that he
told Cook, "I did not'see why they (Lodge No. 1029) had to have a
negro from Indiana lead a bunch of white men into the plant," and
he denied saying "God damn Cook and the union too," "in those
words." In view of the Trial Examiner's findings and in the light
of the general anti-union attitude of McCracken, as disclosed by the
record and the surrounding circumstances, we feel that Cook's version
of the conversation is entitled to belief.
In August 1938 Chris Spletzer, an employee, returned to work after
having been laid off since March 1938. Spletzer was a member of
Lodge No. 1029 and had attended one of its meetings the evening before
he returned to work. The following day Shank, the superintendent,
called him into his office and asked, "What are you doing, double
crossing me?" Spletzer answered, "Not as I know of" and then added,
"Well, I think I am done with my job." Shank said, "No, no, you can
come back to work tomorrow." Spletzer was one of the. members of
Lodge No. 1029 who participated in the 1937 strike and walked in the
picket line, but after Shank's remarks to him he did not attend meet-
ings of Lodge No. 1029 for several months. Such action by the re-
spondent was well calculated to and did intimidate him in his right to
222 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
self-organization. Although Shank denied having- had such a con-
versation, in view of his anti-union actions, as testified to by other
witnesses, the positive testimony of Chris Spletzer, and the fact that
the Trial Examiner did not credit Shank's denials, we feel that the
latter's account of this occurrence is entitled to belief.
It is apparent from the above facts that the respondent, through its
officials and supervisory employees, engaged in a course of action de-
signed to deprive its employees of their right to self-organization
under the law. The aforementioned anti-union statements and actions
of Swab, Shank, McCracken, Gaden, and other supervisory employees
above mentioned, were intentionally intimidatory and coercive. We
find that the respondent, by making derogatory and disparaging re-
marks and anti-union statements concerning Lodge No. 1029, its
leaders, and the C. I. O. with which Lodge No. 1029 was affiliated; by
questioning employees as to their union affiliation and the activities of
Lodge No. 1029; by cautioning and advising its employees against
Lodge No. 1029; by soliciting individual employees duringAhe'strike
to return to work in disregard of the instructions of Lodge No. 1029 to
its members; by threatening employees with loss of employment unless
they did return to work; by making abusive statements to the presi-
dent of Lodge No. 1029; by threatening him with loss of employment
and depriving him of his regular Sunday off; by persuading and ca-
joling its employees away from Lodge No. 1029; and by various other
acts, has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. The refusals to bargain collectively
1. The appropriate unit
On February 4, 1938, we found that the hourly paid and piece-work
production and maintenance employees of the respondent at its Chi-
cago, Illinois, plant, excluding clerical and supervisory employees,
constituted a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.3 None of the
parties contend that this finding should be altered, nor is it disputed
in the present proceeding. It was stipulated by the parties herein that
such is the appropriate unit.
Accordingly, we find that the hourly paid and piece-work produc
tion and maintenance employees of the respondent at its Chicago, Illi-
nois, plant, excluding clerical and supervisory employees, constitute
a unit appropriate for the purposes of collective bargaining, and that
said unit insures to employees of the respondent the full benefit of
8 Matter of Valley Mould and Iron Corporation and Lodge 1029, Amalgamated Association
of Iron, Steel, and Tin Workers of North America, 5 N. L. R. B. 95.
VALLEY MOULD AND IRON COR'PORATION( 223
their right to self-organization and to collective bargaining and other-
wise effectuates the policies of the Act.
2. Representation by Lodge No. 1029 of a majority in the .appropriate
unit
In our previous decision we directed that an election be held by
secret ballot to ascertain whether the employees in the aforesaid ap-
propriate unit desired to be represented for the purpose of collective
bargaining by Lodge No. 1029, the Independent, or by neither.4 Pur-
suant to the Direction of Election, balloting was conducted on Feb-
ruary 18, 1938, which resulted in a majority vote being cast for Lodge
No. 1029. On March 23, 1938, in our Supplemental Decision and
Certification of Representatives, we certified Lodge No. 1029 as the
sole collective bargaining agent in the aforesaid unit.5
We find that on March 23, 1938, Lodge No. 1029 was the duly des-
ignated representative of a majority of the respondent's employees in
the unit herein found appropriate.
The respondent met with Lodge No. 1029 for the purpose of con-
cluding a collective-bargaining agreement on several occasions be-
tween April 22 and August 19, 1938. On June 17, 1938, at one of
these meetings, which are discussed more fully below, the respondent
informed Lodge No. 1029 that the Independent claimed to represent
a majority of the respondent's employees. Later, on July 1, the
respondent advised Lodge No. 1029 it had received a petition from
the Independent, signed by 146 employees," requesting the respondent,
to recognize it as the sole bargaining agent. At a meeting with
Lodge No. 1029 on August.19, the representatives of the respondent
stated that the respondent would recognize Lodge No. 1029 as the
representative of its members only. In so doing the- respondent took
the position that Lodge No. 1029 no longer represented a majority
of its employees.
Where men join one union and subsequently of their own free will
join a rival union before a refusal to bargain occurs, it is usually
fair to infer that the men have revoked the collective-bargaining
agency of the first and cannot be' counted toward the majority which
it must have on the date of an alleged refusal to bargain with it. We
find below, however, that the respondent refused to bargain with
Lodge No. 1029 on four occasions prior to the time when the Inde-
pendent claimed to represent a majority,7 and that it dominated and
interfered with the formation and administration of the Independent.
4 See footnote 3, supra.
5 Matter of Valley Mould and Iron Corporation and Lodge 1021). .4 malgamated Association
of Iron, Steel, and Tin Workers of North . America , 6 N. L. R . B. 133.
'This constituted a majority of the respondent ' s employees in the unit herein found to
be appropriate for the purposes of collective bargaining.
7 On April 22 , May 13 . May 20 , and June 10, 1938.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the defections from the ranks of Lodge No. 1029 were
the direct result of the respondent's unlawful refusal to bargain," and
that the employees' designation of the Independent did not repre-
sent their free choice.° We do not, therefore, recognize the validity
of the defections. To do so would be to permit the respondent to
evade its duty to bargain with Lodge No. 1029 because of the dissipa-
tion of its majority resulting from other of the respondent's unfair
labor practices.
We find that on March 23, 1938, and at all times thereafter, Lodge
No. 1029 was the duly designated representative of a majority of
the respondent's employees in the appropriate unit, and by virtue
of Section 9 (a) of the Act was the exclusive representative of all
the employees in said unit for the purposes of collective bargaining.
3. The refusals to bargain
Prior to the strike, which commenced on May 30, 1937, represen-
tatives of Lodge No. 1029 held three meetings with Swab in an
effort to obtain a contract covering wages and other conditions of
work. On May 27, 1937, the members of Lodge No. 1029 at a meet-
ing resolved to strike unless- a satisfactory agreement was reached
by May 29, 1937. The respondent failed to meet with Lodge No.
1029 on that day and the strike commenced May 30, 1937. During
the last two meetings Lodge No. 1029 asked for recognition as the
sole bargaining agent of the respondent's employees but it never
received such recognition.
During the strike, at meetings with Lodge No. 1029, Swab, the
respondent's vice president, said that the respondent could not sign
a contract with Lodge No. 1029 because the people with whom the
respondent carried on business would boycott it for doing so. The
strike lasted until July 9, 1937, but Lodge No. 1029 failed to get
a contract with the respondent ; the basis of the settlement being
a statement of policy by the respondent. In this statement of policy,
after the respondent set forth the fact that it would recognize Lodge
No. 1029 for its members only, the following excerpt appears :
The company also recognizes the right of employees to bargain
individually and will deal individually with such employees
as desire this method in preference to collective bargaining.
On March 24, 1938, the day following our certification of Lodge
No. 1029 as the exclusive representative of the respondent's employees
8 Matter of Schierbrock Motors and Tri-City Auto Mechanics Lodge 1215 , affiliated with the
A. F. of L., 15 N. L . R. B. 1109.
OMatter of Star and Crescent Boat Company and Inland Boatmen's Union of the
Pacific, 18 N. L. U . B. 479.
VALLEY MOULD AND IRON 'COR'PORATION: 225
in the appropriate unit, as set forth above, Lodge No. 1029 requested
the respondent to set a date for a, conference for the purposes of
collective bargaining. A letter dated the same day was also sent
to the respondent requesting a conference for April 1, 1938. The
respondent informed Lodge No. 1029 that Swab was out of town
and could not set any definite date, but after further requests by
Lodge No. 1029, a conference was finally arranged with the respond-
ent to be held on April 22, 1938.
First Meeting. On April 22, 1938, a meeting was held between
Swab and Samuel M. Phillips, the respondent's vice presidents, and
James G. Thimmes, a representative of the Steel Workers Organizing
Committee, Joe Cook, Joseph Strazzante, Joe Ochata, and Joseph
Szuflita, four employees, all of whom represented Lodge No. 1029.
At this meeting Lodge No. 1029 presented a proposed contract cov-
ering working conditions and asked the officers of the respondent
to study the contents thereof and arrange for another meeting.
The agreement was read aloud and discussed at some length, spokes-
men for Lodge No. 1029 explaining that it was a standard type of
contract. The respondent's representatives asked various questions
about the agreement but did not present any counterproposals.
Thimmes testified that at this meeting, notwithstanding the fact that
Lodge No. 1029 had been certified by the Board as the sole collec-
tive bargaining agent, Swab, when asked whether the respondent
recognized Lodge No. 1029 in that capacity, stated. "they did not
know." Swab did not contradict Thimmes. On cross-examination
by the Board's attorney, Swab stated that he could not remember
definitely whether the question of recognition was presented to the
respondent at the first meeting. He testified, "that question arose
and the answer to that question was that they had already been
certified as the bargaining unit and we made no exception to it.
It was made at one of the very first meetings, if my recollection
serves me correctly. I cannot recall definitely. I am more inclined
to believe it was either the second or third." Phillips testified that
there was no discussion as to recognition of Lodge No. 1029, but later
testified that he could not remember what was said at the different
meetings, except in a general way. Iii giving his testimony con-
cerning what happened at the various meetings between the respond-
ent and Lodge No. 1029, Phillips relied heavily upon memoranda
which he testified he prepared after the meetings were held, such
memoranda covering what he considered the important events at
the meeting. His memoranda were not complete. The respondent's
counsel in his oral argument before the Board on November 2, 1939,
admitted that the question arose at this meeting. In view of the
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing testimony and in the light of the entire record, we believe
that Thimmes' version of what occurred is entitled to credence.
Accordingly, we find that the respondent refused to recognize Lodge
No. 1029 as the exclusive representative of its employees for the pur-
poses of collective bargaining although Lodge No. 1029 had been
certified as such representative by the Board. Recognition of a union
is an essential element in the duty to bargain collectively as set forth
in the Act.10 We find that the respondent, by refusing to recognize
Lodge No. 1029 on April 22, 1938, refused to bargain collectively with
Lodge No. 1029.
Although Lodge No. 1029 attempted to arrange a time for the next
meeting, the officers of the respondent would not commit themselves
to a defiiiit6 date.
Second Meeting. On or about May 13, 1938, after a further request
by Lodge No. 1029, the parties, with the exception of Szuflita, met
again. Again the proposed agreement was discussed and since certain
provisions were not suitable Lodge No. 1029 submitted a second pro-
posed contract to the respondent. Swab asked a number of questions
about the agreement, some of which were repeated a second time.
Lodge No. 1029 again asked the respondent's officers if the respondent
recognized it as the sole bargaining agent. - Swab's answer was "we
have not made up our minds. We don't know." Swab neither
affirmed nor denied the foregoing statement, although after Phillips,
who could not recall exactly what happened at the meeting, testified
that such a conversation did not occur, Swab testified that his testi-
mony would be substantially the same as that of Phillips. At this
meeting Lodge No. 1029 asked if the respondent had any suggestions
to make as to terms and conditions to be included in the agreement
with the respondent. Swab and Phillips said they had none at that
time. A further meeting was arranged for the following Friday,
May 20, 1938.
In the light of the entire record, and after giving due consideration
to the character of the testimony given by Swab and Phillips, we find
that the respondent,-on May 13, 1938,. refused to recognize Lodge No.
1029 as the exclusive representative of its employees. Accordingly,
we find that by such action the respondent, on or about May 13, 1938,
refused to bargain collectively with Lodge No. 1029.
Third Meeting. On or about May 20, 1938, the same parties held
a third meeting. Phillips objected to parts of the "recognition. clause"
in Lodge No. 1029's proposed contract, whereupon Lodge No. 1029
offered to change the wording. The meeting lasted about 4 hours
'ON. L. R. B. v. The Griswold Manufacturing Co., 106 F. (2d) 713 (C. C. A. 3),
enf'g Matter of The (lriswold Manufacturing Company and Amalgamated Association of
Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. R. B. 298.
VALLEY MOULD AND IRON CORPORATION 227
and Thimmes informed Swab and Phillips that he felt Lodge No. 1029
had thoroughly exhausted all questions that might be asked and he
thought it was time for the respondent to present any proposals it
desired to make. Although there was much discussion concerning the
provisions of the contract proposed by Lodge No . 1029, the represent-
atives of the respondent would not commit themselves on any counter-
proposals.
Prior to and throughout this meeting the answer of Swab and
Phillips to any question the representatives of Lodge No. 1029 asked
concerning recognition or whether the respondent accepted any part
of its proposals was, "They don 't know." At this meeting Swab read
from; a piper a clause, which he stated should be in any agreement
reached, to the effect that "Notwithstanding the conferences and pro-
posals of the Company if they were agreed upon, the Company was
understood to continue its present policy in regard to collective bar-
gaining, wages, hours , and working conditions ." The respondent's
policy referred to provided in part that it recognized Lodge No. 1029
as the collective bargaining agency for its members only, and that
the respondent also recognized the employees ' rights to bargain
individually.
We find that the respondent , on May 20, 1938 , refused to recognize
Lodge No. 1029 as the exclusive representative of its employees for
the purposes of collective bargaining , and that by such refusal, the
-respondent , on or about May 20, 1938, refused to bargain collectively
with Lodge No. 1029.
Thimmes asked Swab and Phillips to submit counterproposals to
Lodge No. 1029 before their next meeting so that Lodge No. 1029
might study them. The parties were unable to arrange a definite
date of the next meeting.
Fourth Meeting . On or about June 10, 1938 , another meeting was
held at the request of Thimmes. Upon this occasion one Patterson
and one Harper, representatives of Lodge No . 1029, also were present,
and Szuflita rejoined the conferees . Spokesmen for Lodge No. 1029
asked if the respondent had counterproposals ready for discussion.
Swab and Phillips were again without any counterproposals , although
Lodge No. 1029 had specifically requested that they be ready on or
before this meeting. Thimmes offered to read each provision in the
contract again and asked the representatives of the respondent to
state definitely whether or not the different paragraphs were agree-
able, and if not, to make changes that would be agreeable to the
respondent . Swab and Phillips stated that these matters were
"hashed out" at the previous meeting. They then asked about the
relative merits of a "unilateral undertaking" and a "bilateral under-
taking." Mr. Patterson stated that Lodge No. 1029 wanted the
228 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
respondent to sign a "bilateral" agreement . Some discussion ensued
concerning the "responsibility " of Lodge No . 1029 and the meeting
adjourned.
We find that the respondent did not enter into genuine collective
bargaining negotiations with Lodge No. 1029 at the June 10 meeting.
It still did not recognize Lodge No. 1029 as the exclusive bargaining
agent of its employees although it had been requested to do so on
several occasions . Moreover , the respondent made no genuine at-
tempt by suggestion or proposals of its own , and by interchange of
ideas, to achieve an understanding resolving the issues . Although a
period of almost 2 months had elapsed since Lodge No. 1029 presented
a proposed contract , the respondent was still deciding what form
anything they might agree upon should take.
We find that the respondent, by refusing to recognize Lodge No.
1029 and by refusing to submit counterproposals to it on June 10,
1939, refused to bargain collectively with Lodge No. 1029. -
Fifth Meeting. On or about June 17, 1938 , the same parties again
met. Swab opened the meeting by telling the representatives of
Lodge No. 1029 "That any undertaking of the Company would have
to be considered as an indivisible whole. No action can be acceptable
except as it is part of the whole ," and further that before it would
enter into an agreement it would require Lodge No. 1029 "to post a
satisfactory bond in the amount of $200,000" as security for perform-
ance of any agreement . Patterson asked the respondent 's representa-
tives if they had any counterproposals ready, whereupon Swab and
Phillips replied that they did not , as the two points mentioned above
had a very great bearing on the subject . Patterson accused the
respondent of not bargaining in good faith , and stated that if they
did not present something in writing to Lodge No. 1029 it would be
necessary to take the case to the Board. Lodge No. 1029 pointed out
that it had nearly 500 contracts with different employers covering
many thousands of employees , in force at that time, and that this was
evidence of their responsibility . Patterson stated that such a bond
was unnecessary and uncalled for. Swab and Phillips were asked if
they would agree to anything ,' whereupon they gave the same answer
as before , "They don't know," and finally , when pressed if they in-
tended to sign anything at all , Phillips answered "No." This was
the first definite answer Lodge No. 1029 received concerning whether
the respondent would sign any agreement.
Representatives of Lodge No. 1029 again asked the respondent if it
recognized Lodge No. 1029 as the bargaining agent, whereupon the
officers of the respondent said there was doubt in their minds as to
whether Lodge No. 1029 was the sole bargaining agency at that time,
and for the first time spoke of their "competitors ," the Independent.
VALLEY MOULD AND IRON 'OORPORATIONI 229
At this time Lodge No. 1029 was told that the Independent claimed
that a majority of the respondent's employees were among its mem-
bers, and had requested a meeting with the respondent. At the hear-
ing Phillips testified, "we are recognizing the Union'l (Lodge No.
1029). However, the record is clear that at no time did the respond-
ent recognize Lodge No. 1029 as the exclusive representative of its
employees.
We find that the respondent, on or about June 17, 1938, refused to
recognize Lodge No. 1029 as the exclusive representative of its em-
ployees, as certified by the Board, and refused to make counterpro-
posals to Lodge No. 1029 other than those referred to above, which
were calculated to, and did, prevent genuine negotiations looking to
the consummation of a contract, and that by said acts the respond-
ent refused to bargain collectively with Lodge No. 1029.
On June 22, 1938, Lodge No. 1029 filed a charge with the Board,
alleging, among other things, that the respondent had violated Sec-
tion 8 (5) of the Act.
Sixth Meeting. On or about July 1, 1938, the same parties, with
the addition of Nicholas Fontecchio, who joined the ranks of spokes-
men for Lodge No. 1029, held another meeting. At this time Swab
presented two counterproposals, one in the form of a unilateral
statement, and the other referred to as a bilateral "undertaking."
Fontecchio objected to the fact that there was no provision in either
proposal showing the respondent's recognition of Lodge No. 1029
as the sole bargaining agency, and objected to the further fact that
the bilateral proposal required that a bond be filed by Lodge No.
1029 in the amount of $200,000, to insure performance. Swab and
Phillips, in reply to Fontecchio's objection to the respondent not
setting forth that it recognized Lodge No. 1029 as sole collective
bargaining agency, stated that "the law took care of this." Fon-
tecchio again stated that the respondent was refusing to recognize
Lodge No. 1029. Swab and Phillips replied that the respondent's
answer to that was "embodied in writing in our counterproposals."
There is no provision in either of respondent's counterproposals
recognizing Lodge No. 1029 as the exclusive representative of the
respondent's employees. On the contrary both counterproposals have
the following provision :
The right of any employee to bargain individually or through
representatives of his own choosing other than the union is
recognized.
After striking out various clauses in respondent's counterproposals,
Fontecchio asked Swab and Phillips if they would consider what
was left as part of an agreement, whereupon they stated "No," and
283031-41-vol. 20-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred him to the section on "Indivisible whole." Then Fon-
tecchio asked , "Well, will you sign this yourselves , as it is?" and
they replied , "No." Although Phillips testified that at no time did
the respondent refuse to sign, we do not credit his testimony. Be-
fore the meeting adjourned Swab stated to Lodge No. 1029 that
he had received a petition from the Independent , signed by 146
employees , requesting the respondent to recognize it as the sole
bargaining agency.
The above facts clearly reveal that the respondent refused to recog-
nize Lodge No. 1029 as the exclusive representative of its employees.
Although it justified such refusal on the ground that "the law took
care of this ," it insisted on individual representation contrary to
the express provisions of the Act . Such counterproposals as were
presented to Lodge No. 1029 indicate the continuing intention of the
respondent to avoid its duty to bargain under the Act. We find
that the respondent , on or about July 1, 1938 , refused to bargain
collectively with Lodge No. 1029.
Seventh Meeting. On or about July 6, 1938, the representatives
of the parties met in the Regional Office of the Board for the
Thirteenth Region, Chicago , Illinois. -Merrill Shepard appeared as
counsel for the respondent . At this meeting Lodge No. 1029 again
charged the respondent with not dealing in good faith . Counsel
for the respondent promised that he would try to arrange another
meeting between Lodge No. 1029 and Swab and Phillips.
A letter dated August 12, 1938, was sent to the respondent by
Lodge No. 1029 requesting a further conference for August 19, 1938.
Eighth Meeting . On or about August 19, 1938, the parties met for
the last time . Lodge No. 1029 at this meeting submitted another
proposed contract for the consideration of the respondent . At this
time the respondent again claimed that it had a petition from the
"rivals" of Lodge No. 1029, signed by a majority of its employees,
and, therefore , until that was settled , the respondent could not recog-
nize Lodge No. 1029 as the exclusive bargaining agent even though so
certified by the Board, but that the respondent was then meeting with
Lodge No. 1029 as representative of its members only. Phillips stated
that any further matters discussed with Lodge No. 1029 would be sub-
ject to that limitation . No further meetings have been held between
the parties.
We find that the respondent on or about August 19, 1938, refused
to bargain collectively with Lodge No. 1029.
We have repeatedly held that the collective bargaining requirements
of the Act are not satisfied by an' employer meeting with the union
representatives and discussing terms with them if union recognition
VALLEY MOULD AND IRON CORPORATION 231
is withheld." Throughout the course of its meetings with Lodge No.
1029 the respondent refused to recognize Lodge No. 1029 as the ex-
clusive representative of its employees although Lodge No. 1029 had
been certified as such representative by the Board. At the outset the
respondent simply refused such recognition. Later, however, the
respondent coupled such refusals with an attempt to secure from Lodge
No. 1029 its agreement to the right of the respondent to bargain with
its individual employees. Provisions to this effect were included in
the counterproposals the respondent submitted to Lodge No. 1029.
Finally, the respondent advised Lodge No. 1029 that it would recognize
it as the representative of its members only and that any matters dis-
cussed would be.subject to such limitation. The respondent contends
that it was justified in taking this position since a majority of its
employees had designated the Independent as their collective bargain-
ing agent and Lodge No. 1029 no longer represented a majority. We
do not accept this contention. As noted above, the defections from
Lodge No. 1029 resulted from the respondent's refusals to bargain with
it, and the employees' designation of the Independent, herein found
to be company dominated, did not represent their free choice. The
respondent may not rid itself of its duty to bargain by steadfastly
refusing to bargain.
The conclusion that the respondent has refused to bargain col-
lectively with Lodge No. 1029 is independently justified by other
conduct of the respondent. For a time it refused to offer any coun-
terproposals to Lodge No. 1029 although specifically requested to do
so. At the meeting of June 17 the respondent set forth. certain con-
ditions to any agreement it might execute. It insisted that "any
undertaking of the company would have to be considered as an in-
divisible whole" and that before any agreement was consummated
it would require Lodge No. 1029 "to post a satisfactory bond in the
amount of $200,000" to secure performance. We are convinced, and
find, that these conditions were presented by the respondent for the
purpose of obstructing and preventing any agreement with Lodge
No. 1029. In fact, at the same meeting, Phillips informed Lodge
No. 1029 that the respondent would not sign any agreement. Al-
though the respondent submitted counterproposals at the next meet-
ing, they were not made in good faith. The counterproposals pre-
sented by the respondent contained no provision granting recognition
"Matter of The Griswold Manufacturing Company and Amalganna ted Association of
Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. R. B. 298, enf'd
N. L. R. B. v. The Griswold Manufacturing Co., 106 P. (2d) 713 (C. C. A. 3) ; Matter
of McNeely d Price Company and National Leather Workers Association , Local No. 30, of
the C . I. 0., 6 N. L. R. B. 800, enf'd as mod. N. L. R. B. v. IleNeely cl Price Co., 106 P. (2d)
878 (C. C. A. 3).
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Lodge No. 1029, but instead provided for individual bargaining;
the "bilateral undertaking" required Lodge No. 1029 to post a bond
in the sum of $200,000 and provided that the agreement was an
"indivisible whole.". Lodge No. 1029 suggested certain changes in
the "bilateral undertaking" but the respondent rejected them on the
ground that its proposal was an indivisible whole. But the respond-
ent was not content with merely preventing negotiations with Lodge
No. 1029. Its ultimate desire was to avoid all contractual relations
with Lodge No. 1029. ` It flatly refused, therefore, to sign the agree-
ment which it had itself proposed when requested to do so by Lodge
No. 1029.
We entertain no doubt that the respondent's refusals to grant
recognition to Lodge No. 1029 and its persistent refusal to submit
genuine counterproposals to it, were motivated solely by an unwilling-
ness to enter into any agreement whatsoever with Lodge No. 1029,12
and by a desire to discourage membership in Lodge No. 1029 and en-
courage membership in the Independent. As heretofore set forth,
during the period in which these meetings were held, as well as prior
to and thereafter, the respondent, through its. officers and agents,
sought to induce and coerce individual employees and the leaders
of Lodge No. 1029 to refrain from their union activities.
We find that the respondent, on April 22, 1938, on or about.May
13, 1938; May 20, 1938; June 10, 1938; June 17, 1938; July 1, 1938;
and August 19, 1938, and on each of said occasions, and at all times
since August 19, 1938, refused and is refusing to bargain collectively
with Lodge No. 1029 as the exclusive representative of its hourly paid
and piece-work production and maintenance employees at its Chicago,
Illinois, plant, excluding supervisory employees, in respect to rates
of pay, wages, and hours of employment, and other conditions of
employment, and has thereby interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing these employees
in 'the exercise of the rights guaranteed by Section 7 of the Act.
C. Domination of and interference with the formation and
administration of the Independent
Prior to 1933 there were no labor organizations representing the
employees at the respondent's plant. In June 1933 Swab called a
meeting of all the employees in the plant and set forth an Employees'
Representation Plan to them. Swab testified that the Plan was
See Matter of Globe Cotton Mills and Textile Workers Organizinq'Comnaittee, 6 N. L.
It. B. 461, enf 'd as mod . Globe Cotton Mills v . N. L. R. B ., 103 F . ( 2d) 91 ( C. C. A. 5) ;
Matter of Harry Schwartz Yarn Co ., Inc. and Textile Workers Organizing Comm ittee. 12
N. L. R. B. 1139.
VALLEY MOULD AND IRON 'CORPORATION' 233
similar to the International Harvester Plan 13 and that "after a few
moments of discussion" the Plan was accepted by the employees.
Swab further testified that the respondent paid for the printing of
a booklet setting forth the Plan, that thereafter meetings were held
in the plant on the respondent's time, and that an election of repre-
sentatives was held on the respondent's property and time pursuant
to the Plan. Under the Plan, the employees elected five representa-
tives who met with five appointed representatives of the management
from time to tinge. All meetings were,held in the plant of the re-
spondent and the elected representatives of the employees were paid
by the respondent for the time spent at meetings. Swab was the
general chairman of the joint meeting and Morrow, the respondent's
chief clerk, was the secretary.
Shortly after July 5, 1935, Swab received a copy of the National
Labor Relations Act. After studying the Act he called the foremen
and supervisory force together and read parts of the Act to them.
Although a doubt arose in his mind as to the validity of the Plan
under the Act, the respondent nevertheless continued the Represen-
tation Plan because of some doubt as to the validity of the Act. Swab
further testified that after the "Jones-Laughlin decision" 14 was
rendered on April 12, 1937, he had "some doubt" as to the validity
of the Plan and so called a meeting of the representatives on April
16, 1937. Those present at this meeting were Alex Fitzgerald, Joe
Cook, Chris Spletzer, Matt Wade, Ralph Maxwell, W. C. Butler,
foreman, C. R. Shank, superintendent, A. McCracken, foreman, C. E.
Swab, vice president, and G. L. Morrow, chief clerk. At the meeting
he read a prepared statement to the representatives. Swab did not
produce the statement at the trial.
Joe Cook, president of Lodge No. 1029, testified that at the meeting,
Swab stated, "I presume you all know of the recent decision of the
Supreme Court, that now we can't meet with you fellows any more
as a management group. I don't know what effect that would have,
of course, but I don't see any reason why that you fellows can't
continue to meet with your own little organization as you are."
Swab denied that he made the above statement. He testified that he
took notes on what he thought was important at the meeting and
incorporated them in a memorandum. The memorandum does not
contain the above statement. It should be noted, however, that it
does not contain other statements which Swab admittedly made. We
u The Board found the " International Harvester Plan" to be company dominated , within
the meaning of Section 8 (2) of the Act, in Matter of International Harvester Company
and Local Union No. 57, International Union, United Automobile Workers of Arnerica, 2
N. L. R. B. 310.
14 N. L. R. B. v. Jones & Laughlin Steel Corp ., 301 U. S. 1.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Swab made substantially the statement attributed to him
by Cook. In addition, the memorandum states, and we find, that.
Swab told the representatives that the Plan would have to be dis-
continued,' and that.`-'It's entirely the choice of the men in the- plant
whether they will be represented by some one in the plant, or by an-
outsider. How you will best be served and under what system you:
are rests with you. We will judge the future by the past, and trust
that the future will be the same as in the past." [Italics supplied.]
As set forth above in Section III A, Swab, during the course of'
this meeting, questioned the representatives about Lodge No. 1029,.
stated that "it didn't make sense to him why men should want to
pay, have to pay dues to work, for the right to work, and why we-
should have outsiders coming in telling us what to do," and other-
wise expressed his displeasure with Lodge No. 1029.
Swab's statements at this meeting left no doubt that the respondent.
desired, its employees :in -the. future.to,continue with a plan of repre-
sentation similar to that which it had installed for them, and they-
left no doubt with the employees attending the meeting that the
respondent did not want Lodge No. 1029 at its plant. The effect of
Swab's statements and the discussions had at this meeting is clearly
revealed in the statement made by Fitzgerald, an employee repre-
sentative, immediately after the meeting in which he said to Cook,.
"I thought you had some sense; going in there and beefing at that.
old man. You made a damn fool of yourself. You should have
kept your mouth shut and not talked about the union in front of
Swab."
As noted above, Lodge No. 1029 was attempting to negotiate with the
respondent at the time this meeting was called. Such attempts being:
unsuccessful, a strike was called,by Lodge No. 1029. on May 30, 1937.
Clarke, the president of the Independent, testified that prior to the
strike he and others "had definitely formed the purpose of forming a
union," and that he had talked to Walker Butler, the attorney repre-
senting the Independent. The evidence reveals that "immediately
after the strike was in effect," on or about June 1, 1937, Clarke and.
several others, among whom were Andrew Buckner, Robert Maxwell,.
Ralph Maxwell, Walter Reimann, and others, went to Attorney But-
ler's office, where they obtained "some petitions headed up for the-
purpose of getting signers." These typewritten petitions, in effect,.
"would refute any other authority" and the signers agreed to join,
the Independent. According to Clarke, within a day or two after-
"we got the petition signed by Mr. Butler," the above-named em-
ployees, among others, solicited members for the Independent. Ralph
Maxwell was a former representative of the Employees' Representa-
tion Plan and was present at the meeting called by Swab on April 16,
VALLEY MOULD AND IRON CORPORATION 235
1937, referred to above. Walter Reimann had also been a former
representative of the respondent's Employees' Representation 'Plan
and Andrew Buckner was a supervisory employee who, according to
Swab's testimony, was a "leader" and,supervised4he work of the men
in his department.
On or about June 16, 1937, while the strike was in progress at the
respondent's plant, the Independent obtained its charter. Among
the incorporators were : William H. Clarke, Ralph Maxwell, Walter
Reimann, and Andrew Buckner.
We have already discussed in some detail the method by which the
strike was terminated, and the manner in which the respondent's
officials and supervisory employees participated in getting the men
to return to work in disregard of the instructions of Lodge No. 1029.
In conjunction with this, on or about July 6, 1937, Clarke, McLean,
and others on a committee, pursuant to an arrangement made with
the respondent by telephone, and with the aid of Chicago police and
squad cars, passed the picket line and entered the plant of the respond-
ent to hold a conference with Swab. Clarke testified that he and the
committee went into the plant to break the strike. At this meeting
the committee told Swab that they represented a majority of the
employees and that they were willing to return to work under the
same conditions they had prior to the strike.
On July 9, 1937, the strike was settled following a conference be-
tween the representatives of Lodge No. 1029 and the respondent.
The respondent issued a "statement of policy" providing for indi-
vidual bargaining and recognizing Lodge No. 1029 as the representa-
tive of its members only.
In February 1938, just prior to the election, organizers for Lodge
No: 1029, who were attempting to pass out leaflets near the gate outside
of the plant, were warned by Mr. Gaden, the safety supervisor, to stop
passing out handbills, and were ordered off the property. This is
uncontradicted. In contrast to this action, Gaden later asked an
employee why he did not join an inside union like they previously had
in the plant.'b
Shortly before the election, in February 1938, Foreman McCracken
said to Sam Jukich, "You vote. Don't vote for the C. I. O. Vote for
company. You better vote for company." On the day of the election
McCracken approached Clarence Mabe, an employee, saying, "I hear
Joe Cook is going to have a barrel of beer and lamb if you all win
the election. I will put Clarke to work. I will have him work. We
are going to show you, we will beat you all, and we are going to have
lamb and beer." Clarke was the president of the Independent and
is Our findings on this incident are set forth in more detail in Section III A , above.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was among those who were active in its formation . After the election
McCracken told Mabe, "Well , Mabe, you did win."
Commencing June 15, 1938, for a period of approximately 10 days,
members of the Independent circulated petitions among the respond-
ent's employees . The employees were contacted mostly at their homes
since the plant was closed during this period. The petitions advised
the respondent that the undersigned were members of the Inde-
pendent, and requested the respondent to recognize it as the sole
bargaining agency. Clarke , president of the Independent , testified
that the employees were told by the solicitors , among other things,
that Lodge No. 1029 had failed to live up to its promise to obtain a
contract with the respondent , that as Lodge No. 1029 had failed to
get a contract , the Independent could do better , and that "they
figured" Lodge No. 1029 would have trouble with the respondent.
The solicitors also informed the employees that the respondent would
soon recognize the Independent.
It will be recalled that during this period , June 1938 , and for
2 months prior thereto, the respondent had been "meeting" with
Lodge No. 1029 , but had not at any time presented any "counter
proposals ," nor had the respondent even recognized Lodge No. 1029
as the exclusive representative of its employees, as certified by the
Board. As a result of the respondent 's action during the interim
between the meetings, which extended from April 22 to August 19,
1938, Lodge No. 1029 was hindered in its organizational activities
while the Independent was enabled by the respondent 's actions to
procure new members for its organization . Lodge No. 1029 was
entitled to recognition as the exclusive representative of the respond-
ent's employees in the appropriate unit. It was also entitled to a
genuine bargaining relationship between the respondent and itself
on behalf of those employees . However, the respondent persisted in
interfering with these rights and persisted in impeding and in
delaying the execution of its duties.
We have already discussed the facts upon which we have found
that prior to and after the hearing and certification the respondent,
through its officials and supervisory employees , engaged in a course of
action designed to deprive its employees of their right to self -organ-
ization under the law. We have found that the anti-union state-
ments and actions of Swab, Shank , McCracken , Gaden, and the
supervisory employees of respondent above mentioned were inten-
tionally intimidatory and coercive . We have found that the re-
spondent , by making derogatory and disparaging remarks and
anti-union statements concerning Lodge No. 1029, its leaders, and the
C. I. 0. with which Lodge No. 1029 was affiliated ; by cautioning and
advising its employees against Lodge No. 1029; by soliciting indi-
VALLEY MOULD AND IRON 'CORPORATION 237
vidual employees during the strike and settlement negotiations to
return to work in disregard of the instructions of Lodge No. 1029
to its members ; by threatening employees with loss of employment
unless they did return to work; by making abusive statements to the
president of Lodge No. 1029; by threatening him with loss of em-
ployment and depriving him of his regular Sunday off ; by persuading
and cajoling its employees away from Lodge No. 1029 ; by refusing to
bargain with Lodge No. 1029 on or about April 22, May 13 and 20,
June 10 and 17, July 1, and August 19 , 1938, and on each of said
occasions , and at all times thereafter ; and by various other acts has
interfered with , restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
We find that the respondent, by the foregoing acts, dominated and
interfered with the formation and administration of, and contributed
support to , the Independent , and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT . OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent,
described in Section I, above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States, and
have led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
activities and practices in which we have found it to have been en-
gaged, and in aid of such order and as a means of removing and
avoiding the consequences of such activities and practices , that the
respondent be directed to take certain affirmative action, more par-
ticularly described below.
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights which the Act
has secured to them. It is plain that the respondent must cease and
desist from such practices , and we shall so order.
We have found that the respondent has persistently refused to
bargain collectively with Lodge No. 1029 as the exclusive representa-
tive of the respondent 's employees in the unit herein found appro-
priate. We, therefore , shall order the respondent to cease and desist
from its said refusal , and, upon request, to bargain collectively with
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lodge No. 1029 as such representative. The respondent and the
Independent contend that such an order is no longer appropriate since
the Independent now represents a majority of the respondent's em-
ployees. We do not accept this contention. As noted above, the
defections from Lodge No. 1029 resulted from the respondent's refusal
to bargain with it, and the employees' designation of the Independent,
a company-dominated union, did not represent their free choice.
Apart from this, we hold that in order to effectuate the policies of the
Act, the respondent's refusal to bargain must be remedied by an order
to bargain collectively, based on the majority obtaining on the various
dates of the refusals to bargain.
We have also found that the respondent has dominated and inter-
fered with the formation and administration of, and contributed
support to the Independent. We, therefore, shall order the respondent
to cease and desist from engaging in such unfair labor practices, and
also, in order to remedy the situation brought about by the respondent's
having engaged in such unfair labor practices, and thus to effectuate
the policies of the Act, we shall order the respondent to withdraw
recognition from and completely disestablish the Independent as the
representative of any of its employees for the purpose of collective
bargaining.
We have found that the respondent denied Joe Cook the privilege
of taking his day off on Sunday, in accordance with his regular prac-
tice, because of his union membership and activity. Accordingly, to
effectuate the policies of the Act, we shall order the respondent to
restore this privilege to him.
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. Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge No. 1029, and Valley Mould Independent
Employees' Union, South Chicago Works, are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. The hourly paid and piece-work production and maintenance
employees of the respondent at the Chicago, Illinois, plant, excluding
clerical and supervisory employees, constitute a unit appropriate for
the purposes.of collective bargaining, within the meaning of Section
9 (b) of the Act.
3. Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge No. 1029, was, on March 23, 1938, and at all
times thereafter has been, the exclusive representative of all the em-
ployees in such unit for the purpose of collective bargaining, within
the meaning of Section 9 (a) of the Act.
VALLEY MOULD AND IRON CORPORATION, 239
4. By refusing to bargain collectively with the Amalgamated Asso-
ciation of Iron, Steel and Tin Workers of North America, Lodge
No.'1029,'as the execlusive representative of its employees, on April 22,
-on or about May 13 and 20, June 10 and 17, July 1, and August 19,
1938, and on each of said occasions, and at all times after August
19, 1938, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By dominating and interfering with the formation and admin-
istration of, and contributing support to, the Valley Mould Inde-
pendent Employees' Union, South Chicago Works, the respondent has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (2) 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 engaged 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.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Valley Mould and Iron Corporation, Chicago, Illinois, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Associ-
ation of Iron, Steel and Tin Workers of North America, Lodge No.
1029, as the exclusive representative of its hourly paid and piece-work
production and maintenance employees at its Chicago, Illinois, plant,
excluding clerical and supervisory employees;
(b) Dominating or interfering with the administration of, or con-
tributing support to, Valley Mould Independent Employees' Union,
South Chicago Works, or dominating or interfering with the forma-
tion of, or contributing support to, any other labor organization of
its employees at its Chicago, Illinois, plant;
(c) Recognizing the Valley Mould Independent Employees' Union,.
South Chicago Works, as the representative of any of its employees
for the purpose of dealing with Valley Mould and Iron Corporation
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of work;
(d) In any other manner interfering with, restraining, or coercing
its employees at its Chicago, Illinois, plant in the exercise of their
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to self -organization , to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection . as guaranteed in
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request , bargain collectively with the Amalgamated
Association of Iron, Steel and Tin Workers of North America, Lodge
No. 1029, as the exclusive representative of its hourly paid and piece-
work production and maintenance employees at the Chicago , Illinois,
plant, excluding clerical and supervisory employees , in respect to
rates of pay , wages, hours of employment , and other conditions of
employment ;
(b) Withdraw all recognition from, and completely disestablish,
Valley Mould Independent Employees' Union , South Chicago Works,
as the representative of any of its employees for the purpose of
dealing with the Valley Mould and Iron Corporation concerning
grievances , labor disputes , wages, rates of pay, hours of employment,
or other conditions of employment;
(c) Restore to Joe Cook his former privilege of taking his regular
day off on Sundays;
(d) Immediately post notices in conspicuous places throughout
its Chicago , Illinois, plant , and maintain such notices for a period
of sixty ( 60) consecutive days, stating that the respondent will cease
and desist in the manner set forth in paragraphs 1 (a), (b), (c), and
(d) of this Order and that it will take the affirmative action set
forth in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Thirteenth Region in
writing within ten (10 ) days from the date of service of this Order
what steps the Valley Mould and Iron Corporation has taken to
comply herewith.
MR. WILLIAM M. LEIsERsoN , concurring :
I concur in the foregoing decision , but I would add that the re-
spondent 's refusal to honor a certification by the Board after an
election is a violation of Section 8 (5) of the Act . A mere petition
purporting to show a change in representation shortly after a secret
ballot has been taken cannot justify a refusal to bargain with the
representatives certified as a result of an election . I would hold that
where a certificate has been issued by the Board as the result of an
election by secret ballot and the representative thus certified is assert-
ing its rights under such certificate , the certificate must be honored
by the employer until a new representative is certified . A claim that
VALLEY MO'ULD' AND IRON CORPORATION: 241
it new representative exists, asserted on the basis of cards or a peti-
tion, is insufficient to upset a certification, especially where, as here,
the claim is made within a few months after an election. The re-
spondent's refusal to honor the Board's certificate and to recognize
Lodge No. 1029, under the circumstances here present, constituted a
refusal to bargain within the meaning of Section 8 (5) of the Act.