American Radiator Co.

National Labor Relations Board - Board Decisions

Jun 24, 1938

7 N.L.R.B. 1127 (N.L.R.B. 1938)

In the Matter of AMERICAN RADIATOR COMPANY, A CORPORATION and
LOCAL LODGE No. 1770, AMALGAMATED ASSOCIATION OF IRON, STEEL
AND TIN WORKERS OF NORTH AMERICA, AFFILIATED WITH THE COM-
MITTEE FOR INDUSTRIAL ORGANIZATION
Case No. C-444.--Decided June 04, 1938
Heating and Radiation Equipment Manufacturing Industry-Interference,
Restraint, and Coercion: antiunion statements ; expressed opposition to out-
side labor organization ; by public officials and businessmen-Company-
Dominated Union: sponsorship ; domination of and interference with formation
and administration ; support ; continuation of Employees' Representation Plan ;
circulation of petition for, in plant during working hours ; respondent ordered
to refrain from recognition of, and to disestablish , as agency for collective
bargaining-Discrimination ; discharges : charges of , not sustained as to one
employee ; lay-offs-Collective Bargaining: refusal to negotiate with representa-
tives-Unit Appropriate for Collective Bargaining: production and maintenance
employees-Representatives : proof of choice : comparison payroll with union
list-Lock-Out-Reinstatement Ordered: discharged employee ; employees laid
off-Back Pay: awarded to discharged employee, from time of discharge to time
plant closed; not awarded to employees laid off, because of evidence indicating
that plant would have had to close down for business reasons ; ordered, to
employees laid off who are not reinstated , if operations have been resumed, or
placed on preferential list, within 5 days after issuance of this order.
Mr. David C. Shaw, for the Board.
Mr. George B. Logan and Mr. Samuel W. Fordyce, of St. Louis,
Mo., for the respondent.
Mr. Dennis J. Godfrey, of Litchfield, Ill., for the Association..
Miss Anne E. Freeling, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Local Lodge No. 1770, Amalgamated
Association of Iron, Steel and Tin Workers of North America, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Acting Regional Director for the Fourteenth
Region (St. Louis, Missouri), issued a complaint, dated Aub st 27,
1937, against American Radiator Company, Litchfield, Illinois,
herein called the respondent, alleging that the respondent had en-
1127
100791-38-vol. Vic-72
1128 NATIONAL LABOR RELATIONS HOARD
gaged in and was engaging in unfair labor practices affecting, com-
merce within the meaning of Section 8 (1), (2), (3), and (5), and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint, accompanied
by notice of hearing, were duly served upon the respondent and
upon the Union.
The complaint alleged in substance ' that the respondent (a )
dominated and interfered with the formation and administration of
a labor organization known as the Litchfield Radiator Workers
Union of Litchfield, Illinois,' and contributed financial and other
support to it; (b) discriminated in regard to hire and tenure of
employment of all its employees by locking them out and_discharging
and refusing to* reinstate them; (c)' discriminated in regard to the
tenure of employment of Charles Coatney, Joe Eskra,z and Clarence
Allen, to discourage membership in the Union; (d) refused to bar-
gain collectively with the Union as the exclusive representative of
all the respondent's employees (with certain specified exceptions),
said employees constituting an appropriate bargaining unit; and
(e) by these and other specified acts and conduct interfered with,
restrained, and coerced its employees in the exercise of their right
to self-organization and to engage in concerted activities . for their
mutual aid and protection.
The respondent filed an answer, dated September 14, 1937, admit-
ting that its business at the Litchfield plant, when that, plant was
operating,- affected interstate commerce, but asserting that since the
Litchfield plant was closed for proper business reasons, the respondent
had no employees at that plant, and hence there was no controversy
over which the Board had jurisdiction. For this reason the respond-
ent prayed that the complaint be dismissed. The answer also denied
that the respondent had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Litchfield, Illinois, from
September 21 to October 8, 1937, before Herbert Wenzel, the Trial
Examiner duly designated by the Board. The Board and the respond-
ent were represented by counsel and participated in the hearing. At
the outset of the hearing Litchfield Radiator Workers Association,
herein called the Association, filed a written motion to intervene,
which motion was granted by the Trial Examiner. This ruling is
hereby affirmed. Thereafter the Association was represented by coun-
sel and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce evidence bearing
upon the issues was afforded all the parties.
1 The name of this organization has been changed to Litchfield Radiator Workers
Association
2 Incoirectly designated as Joseph Eskia in the complaint
DECISIONS AND ORDERS 1129
During the course of the hearing, counsel for the Board moved to
dismiss the allegations of the complaint setting forth the discrimina-
tory discharge of Clarence Allen. The Trial Examiner granted the
motion and his ruling is hereby affirmed. At the opening and at the
close of the hearing, and at various times during the hearing, the
respondent moved to dismiss the complaint for lack of jurisdiction,
or to dismiss the complaint or specific allegations thereof on the
ground that they were not sustained by the evidence. The Associa-
tion joined in the respondent's motion in so far as the complaint
alleged that the Association was company-dominated. The Trial Ex-
aminer reserved decision on these motions. During the course of the
hearing the Trial Examiner made other rulings, on, motions and, on
objections to the admission of evidence. He also granted a motion
presented by counsel for the Board at the close of the Board's case
to amend the pleadings to conform to the evidence. The Board has
reviewed these rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On February 1, 1938, the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all the parties, denying
the motions of the respondent and the Association to dismiss the com-
plaint, and finding that the respondent had committed unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), (3), and (5), and Section 2 (6) and (7) of the Act, but finding
that the alleged lock-out of the respondent's employees and the dis-
charge of Joe Eskra were not unfair labor practices-within the mean-
ing of the Act. Accordingly, the Trial Examiner recommended in
his Intermediate Report that the respondent cease and desist from its
unfair labor practices; refrain from recognizing the Association as
the representative of its employees for the purpose of collective bar-
gaining; notify the Union when it intends to reopen its Litchfield
plant ; upon request, bargain collectively with the Union as the exclu-
sive representative of the production and maintenance employees of
its Litchfield plant; upon reopening its Litchfield plant, offer to
reemploy Coatney in his former position, and make Coatney whole
for any loss of pay he may have suffered by reason of his discharge
from the date of his discharge to May 7, 1937, the date of the closing
of the Litchfield plant. The Trial Examiner further recommended
that the complaint be dismissed in so far as it alleged that the
respondent had discriminatorily locked out all its employees and
had discriminatorily discharged Joe Eskra. Exceptions to the Inter-
mediate Report were thereafter filed by the respondent, the Union,
and the Association, to which we have given due consideration.
On May 6, 1938, the Board, notified the parties to this proceeding
that they were entitled to request oral argument before the Board in
1130 NATIONAL LABOR RELATIONS BOARD
Washington, D. C., but none of the parties availed themselves of this
opportunity. -
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, American Radiator Company, was incorporated
under the laws of the State of New Jersey on February 10, 1899.
American Radiator & Standard Sanitary Corporation, a holding
company incorporated in Delaware, owns 99.9 per cent of the stock
of the respondent. The executive offices of the holding company, as
well as of the respondent, are located at 40 West 40th Street, New
York City. The manufacturing headquarters of the respondent are
at 8007 Jos Campau, Detroit, Michigan.
The respondent is engaged in the manufacture, production, assem-
bly, sale, and distribution of heating equipment, boilers, radiators,
water heaters, Arcola Heaters, hot-water supply heaters, steel cast-
ings, malleable castings, and enameled sheet products. The respond-
ent is the leading manufacturer of heating apparatus in the United
States, with upwards of 25 factories in this country, Canada, and
Europe. It has representatives and sales agencies in many of the
leading cities of the world.
The respondent owns the following plants: In Buffalo, New York,
two plants for cast-iron radiators, one plant for boilers, one plant
for malleable and steel castings, one plant for non-ferrous products,
and one plant for enameled sheet products; in Bayonne, New Jersey,
one plant for cast-iron radiators; in North Birmingham, Alabama,
one plant for cast-iron radiators ; in Kansas City, Missouri, a com-
bination boiler and radiator plant for cast-iron boilers and radi-
tors; in St. Paul, Minnesota, one plant for cast-iron radiators; in
Detroit, Michigan, one plant for cast-iron boilers; in Springfield,
Illinois;-one-plant for Corto metal pipe and -refrigeration an& mate-
rials, cast-iron sections; in Ypsilanti, Michigan, one plant for recessed
Convector cast-iron radiators; in Litchfield, Illinois, one plant for
cast-iron radiators.
This case involves only the Litchfield, Illinois, plant, at which the
respondent manufactures steam and hot-water heaters. The mate-
rials used-in such manufacture include pig iron, stove plate, coal,
coke, core sand, fuel oil, limestone, nipples (threaded), fire clay,
ground coal, fluor spar, fire brick, fire stone, lumber, linseed oil, fe'rro
silicon; pafnt, chaplets, and oleum spirits. About half of these ma-
terials are received from outside the State. The respondent ships
about 80 per cent of its manufactured products to points outside the
DECISIONS AND ORDERS 1131
State. On May 7, 1937, the respondent employed 268 men at the
Litchfield plant and a total of 3,093 men at all its plants.
H. THE ORGANIZATIONS INVOLVED
Local Lodge No. 1770, Amalgamated Association of Iron, Steel and
Tin Workers of North America, is a labor organization affiliated
with the Committee for Industrial Organization, admitting to its
membership production and maintenance employees of the respond-
ent, exclusive of supervisory, clerical, and salaried employees.
Litchfield Radiator Workers Association is an unaffiliated labor or-
ganization, limiting its membership to employees of the respondent
at its Litchfield plant.
III. THE UNFAIR LABOR PRACTICES
A. The respondent's formation and domination of labor organizations
The complaint alleged that the respondent, since a date prior to
July 5, 1935, down to and including the date of the issuance of the
complaint herein, fostered, dominated, and interfered with the forma-
tion and administration of a labor organization, known as the "Litch-
field Radiator Workers Union of Litchfield, Illinois," and gave
financial and other support to it. As stated above, the name of
this organization was subsequently changed to Litchfield Radiator
Workers Association.
1. The Plan; and respondent's interference, restraint, and coercion
In August 1933, the respondent inaugurated a Plan of Employees'
Representation, herein called the Plan, among its employees at the
Litchfield plant, apparently as a means of purported compliance with
the National Industrial Recovery Act. Booklets explaining the Plan
were distributed to the employees. Shortly thereafter, the respondent
ordered its employees to vote for their representatives under the Plan,
without having first afforded them an opportunity to vote for or
against the adoption of the Plan.
The Plan provided for both employee and company representatives,
who conferred during working hours without deduction in pay. All
expenses incurred in they operation of the Plan were borne by the
respondent. A company representative kept the minutes of the Plan
representatives' meetings, and copies of the minutes were forwarded
to the Detroit office of the respondent.
At a meeting of Plan representatives held in August 1934, one of
the employee representatives made a motion for an increase in wages.
At the request of Benedict, the plant manager, the motion was with-
1132 NATIONAL LABOR RELATIONS BOARD
drawn. About a year later, after the Act had become` effective,
Whitley, an employee representative, made a motion for a 25-per cent
wage increase. Benedict testified that some of the employees whom
Whitley represented complained that Whitley was too radical. Bene-
dict referred them to the booklet explaining the Plan, which provided
for the removal of a representative by petition. Benedict thereafter
informed Coatney, chairman of the employee representatives, that he
had in his possession a petition for the removal of Whitley, and
requested Coatney to conduct an election for a representative to,
replace Whitley. Coatney refused to participate in removing or
replacing Whitley. Coatney was discharged a few days later. The
employee representatives elected to succeed Whitley and Coatney
suited the respondent's purposes better, for on January 28, 1936, in
a letter to Locke, vice president in charge of manufacturing at Detroit,
Benedict stated :
We attach hereto minutes of the Works Committee meeting
held on Monday, January 27th. You will note this was the,first
meeting of the newly elected members and we have every reason
to feel this committee should not cause us any great concern.
Several employees testified that bargaining negotiations under the
Plan were ineffectual. Grievances which they presented were never
adjusted. Some employees testified that they did not present griev-
ances because, they were convinced that it was futile.
Attempts to organize the respondent's employees apart from the
Plan met with little success until 1937. One of these attempts was
made in 1935 by an employee named Puckett. Puckett testified that
at a conference held with Benedict just before Whitley was removed
as a Plan representative, Benedict told Puckett and Whitley that he
knew that they were trying to organize apart from the Plan and
assured them that an outside organization would never get them any-
where in that plant. After Coatney was discharged, the men became
discouraged and gave up their attempt to organize. In January 1937
Puckett again began' organizing the employees by having the men
sign blank slips of paper at his house. Because his previous efforts
at organizing the employees had been thwarted, Puckett tried to keep
this attempt at organization secret. However, the men who had
signed the slips discussed the matter with others whom they thought
they could trust, and as a result it became generally known. Some
of the foremen questioned the employees concerning their meetings,
having been informed about them by other employees.
Puckett and Whitley, who had been elected a Plan representative
again in January 1937, conferred with Benedict on April 26, 1937,
concerning additional work which had been imposed on certain em-
ployees.without a corresponding increase in wages. Puckett testified
DECISIONS AND ORDERS 1133
that during this conversation he told Benedict that he knew how to
get an agreeineht *itli the respondent aiicl that his organization had
the necessary majority. Benedict went to Detroit on the evening of
April 27, where he conferred with Locke, vice president in charge of
manufacturing. He returned to Litchfield on the evening of April 29
with the following announcement which he read aloud to his assem-
bled employees on the morning of April 30:
Our understanding of Wagner Labor Act is, and we must
advise committee-
1. We must withdraw management representatives from Works
Committee ;
2. Works Committee must meet on own time, and can no
longer meet on Company time and be paid.
You have the right to continue your present organization, or
to join, or assist, any labor organization.
You have the right to choose your own representatives for
collective bargaining, just as you have done in the past.
If any other organization claims the right to represent the
men of Litchfield Plant, you have the right to ask the National
Labor Relations Board to hold an election by secret ballot to
decide whether you or some other organization has the right to
represent the men of Litchfield Plant for collective bargaining.
You now have a committee representing the men which was
elected at your own election, and if you wish this committee to
continue for collective bargaining you have the right to do so.
If anyone else claims the right to represent the men, then if
this committee is to continue it will need to be prepared to meet
the claim of others that they represent the men of Litchfield
Plant.
You will need to be prepared to get a majority vote in an
election by secret ballot by the National Labor Relations Board.
Any employee or group of employees, or representative of
another labor organization, may ask the National Labor Rela-
tions Board for an election to decide by majority vote who rep-
resents the men of Litchfield Plant.
It is for you to decide whether the committee of your present
organization shall handle your own business with us, or whether
some other organization shall decide your business matters with
us for you.
Benedict testified that since the Act had been declared constitu-
tional, the respondent had decided to discontinue the policy pursued
under the Plan. Benedict stated that he went to Detroit for the
purpose of getting the' above announcement. This announcement
was never posted in the plant, although- Benedict, testified, that ".Ordi=
1134 NATIONAL LABOR RELATIONS BOARD
narily, I suppose it would be" but "this was extraordinary. It was
a complete change in regard to the dealings with the men."
Immediately after reading the announcement , Benedict called a
conference of his foremen , and told them they were not to interfere
with the organizing efforts of the employees , but, as one foreman
testified , Benedict wanted them to "keep our eyes and ears open and
our mouths shut."
A few days later a petition for an independent union was circu-
lated in the plant during working hours. The respondent had posted
a notice that , contrary to its previous policy, it was going to give its
employees a vacation with pay. At Benedict's suggestion, a vote of
thanks for the vacation with pay was circulated among the men for
signature at about the same time as the petition for an independent
union. One of the men who circulated this petition was James
Moore, who did so at the request of Henry Mumme, son of one of
the foremen and a company representative under the Plan. Mumme
requested several employees to aid him in the formation of an inde-
pendent union, explaining that he himself could not get anywhere
with it because his father was a foreman. Easterly, one of the em-
ployees on whom Mumme called for assistance , hung the petition
up where it was available for several days to anyone who wanted to
sign it.
Moore acted as foreman in the absence of the regular foreman in
his department . Moreover , in his usual , work of checking orders
that were ready for shipment, he had several men who helped him.
He was paid 67 cents per hour, although the regular rate in his
department was 47 cents . Most of the orders he checked were sent
directly to him from the office , and he reported on them directly to
the office. A number of employees testified that they considered
Moore to be a strawboss or an assistant foreman. We conclude that
Moore was a supervisory employee performing duties similar to those
'of an assistant foreman.
Several employees testified that when Moore asked them to sign
the petition for an independent union, he told them they could use
their own judgment about signing it, pointing out, however, that
he believed that the respondent, rather than recognize an outside
organization, would close this plant and reopen one of its closed
plants elsewhere . Several employees testified that their supervisors
made comments to the same effect, and, in general , expressed opposi-
tion to outside labor organizations and ,; conviction that the re-
spondent would close its plant before it would deal with such an
organization. The respondent's plant, as the secretary of the Cham-
ber of Commerce testified, is one of the largest industries in Litch-
field, and one upon which many persons were dependent for a l iveli-
hood. Threats that the plant would close down if the employees
DECISIONS AND ORDERS 1135
joined an outside organization, therefore, carried much weight not
only with the employees, but-also with the businessmen of the town.
On May 1, 1937, encouraged by Benedict's statement that the
respondent was withdrawing its support from the Plan, and having
about 100 slips signed by employees, Puckett went to Peoria, Illinois,
and arranged for union organizers to address a meeting at Litchfield
on May 6. He also obtained application cards, many of which were
signed before the meeting. About 200 employees attended the meet-
ing, which had been advertised in the newspaper. By the end of
the meeting a majority of the eligible employees in the Litchfield
plant had signed application cards for membership in the Union.
Benedict spent most of the following day, May 7, visiting the
manager of the Springfield, Illinois, plant. When he returned to
Litchfield about 3: 30 in the afternoon, there was a message for him
to call Locke in Detroit. He telephoned Locke immediately. Locke
dictated a notice, which he told Benedict to post in the plant, which
read as follows :
To ALL EMPLOYEES :
Our Company regrets that due to lack of orders for the prod-
uct made at Litchfield Plant and the large inventory now on
hand, this Plant will be closed until further notice.
E. M. BENEDICT,
Manager, Litchi field Plant.
Benedict waited until practically all the employees had left the
plant before he posted the notice. The plant shut down as stated
and was still closed at the time of the hearing.
We find than t the respondent has dominated and interfered with
the formation and administration of the Plan, and has contributed
support to it.
We find that the respondent, by inaugurating, sponsoring, and
dominating the Plan, by circulating the petition for an independent
union in the plant during working hours, and by antiunion state-
ments, has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them in Section 7 of the Act.
B. The Association
Easterly, who took the lead in organizing the Association, testi-
fied that the idea of an unaffiliated labor organization was derived
from the petition that was passed around in the plant after the re-
spondent had announced its withdrawal from the Plan. Moreover,
it was his understanding that other plants of the respondent were
operating with unaffiliated unions and, therefore, he supposed that
work would be divided up with the Litchfield plant if it had an un-
1136 NATIONAL LABOR RELATIONS BOARD
affiliated union. Furthermore, Easterly testified, he knew that the
respondent had always been opposed to outside organizations and,
although the statement read by Benedict purported to give the
employees a right to join any organization they chose, Easterly
pointed out that "he [Ben edict didn't say they would operate, under
it." The attitude of Easterly and of many other employees was also
colored by the fact that the respondent, by its continuance of the
Employees' Representation Plan after the effective date of the Act,
had deliberately and flagrantly flouted the Act from its enactment
until its constitutionality was upheld by the Supreme Court of
the United States.
Easterly, who had been employed at the plant more than 20 years,
was on rather intimate terms with some of the officials of the plant.
During the time the plant was closed down, Easterly and Fellers,
chief clerk of the plant, made neighborly calls on, each other. Eas-
terly also called on Benedict, who bought coal from Easterly's son.
Although it was well known throughout Litchfield, from newspaper
items and general talk, that Easterly was organizing an unaffiliated
union, Easterly denied that Fellers or Benedict discussed the subject
with him during the several visits.
The first meeting of the unaffiliated union took place at Easterly's
house on May 20. Some question was raised at this meeting about
the labor organizations at other plants of the respondent. Strehle,
secretary of the Litchfield Chamber of Commerce, who attended the
meeting at Easterly's invitation, telegraphed the Chambers of Com-
merce in other cities where the respondent had plants. Replies were
received from Springfield, Buffalo, and Bayonne that the plants
there were operating under unaffiliated unions. The Litchfield News-
Herald carried an item about the respondent's plants which "have
been operating steadily and without labor trouble under the independ-
ent union plan."
During their campaign, Easterly and the other organizers urged
employees to sign up by assuring them that the respondent would
never recognize a C. I. 0. union, that the plant would reopen when
their organization had a majority, and, what was more, they would
get a raise and vacation with pay when the plant reopened. Some
of the employees testified that they signed up only because they we're
convinced they would not get back to work otherwise. James Moore
contacted those who he remembered had signed the petition circulated
in the plant after the respondent had announced its withdrawal from
the Plan.
At the second meeting of the unaffiliated organization, which was
held on May 24, it. was voted that a petition should be prepared
requesting the management to reopen the plant just as soon as orders
DECISIONS AND ORDERS 1137
would permit. Such a petition was prepared. It was. presented on
May 25 to Fellers, chief clerk of the plant, since Benedict was out
of town. It is clear that the organizers of the unaffiliated union were
anxious to take no step that would meet with the disapproval of the
respondent. For example, they stated in their petition : "The com-
mittee is now drafting bylaws to cover the operation of this union
and upon completion a copy will be placed in your hands." Fellers
gave Benedict this petition on May 26. Benedict went out of town
again, but while out of town sent Fellers'a letter acknowledging the
petition and stating that he would be pleased to use-his "influence in
having the plant reopen just as soon as there is sufficient demand for
our product and justification for so doing." On May 28, Fellers
wrote Dale Timmons, president of the Association, quoting the letter
he had received from Benedict.
The Union filed its charges with the Board on June 1. On June 2
Benedict received a copy of a letter which the Regional Office of the
Board had sent to Locke. Locke called Benedict to Detroit, where
conferences were held with the respondent's attorney from Buffalo,
who had come to-Detroit. Benedict returned to Litchfield on the
evening of June 4.
On Saturday morning, June 5, Easterly and Timmons went to the
,Springfield plant to find out about the independent union which had
been organized at that plant and which had been recognized by the
respondent. They went to the office of the plant and explained to
Charles Hensen, the, cashier, that they were seeking help in organ-
izing an independent union at Litchfield and that they needed "ten
or twelve more members in order to swing this thing over." Hessen
had copies 'of the bylaws and working agreement of the Springfield
organization in the company safe, but told Easterly and Timmons
he could not give them copies. However, he referred them to Paul
Howell, one of the organizers of, the Springfield organization, who
promised to send them copies of the bylaws and other organization
papers. Howell gave them "some pointers on how to organize law-
fully." He also told them be had been advised by counsel to change
the name of the Springfield organization from Union to Association,
and advised them to do likewise. The Springfield 'documents were
subsequently adapted to the use of the Litchfield organization with
but a few minor changes.
The Litchfield organization held a meeting on the evening of
June 9. The minutes of that meeting read in part as follows :
Reading of bylaws approved and accepted also suggested by
Mr. Easterly that we change the name of our organization to
read Litchfield Radiator Workers Association instead of Litch-
1138 NATIONAL LABOR RELATIONS BOARD
field Radiator Workers Union. No objection voiced so approved
and accepted
Reading of demands and agreement approved and accepted
Meanwhile the Regional Office of the Board had been trying to
arrange a conference between the respondent and the Union. Finally,
on the afternoon of June 9, Benedict and Fellers met with a Union
committee. However, between the time that the appointment was
made and the time it was kept, Benedict testified that he had been
waited on by a delegation from the independent organization, which
presented him with a proposed agreement requesting recognition as
bargaining agency and claiming to represent a majority of the em-
ployees. The agreement purported to be made with Litchfield Radi-
ator Workers Association, and was no doubt the "agreement approved
and accepted" by the Association at the meeting on the evening of
June 9.
The bylaws adopted on June 9 called for regular monthly meet-
ings and for the payment of dues. However, the next meeting was
not held until August 24, and no dues were collected, expenses being
paid by means of collections or by the organizers. After the Union
had filed its charges, the Association decided that it ought to be
incorporated. Its certificate of incorporation is dated September 16.
Bill Davis, who had previously been a temporary foreman and who
was one of the organizers, contributed the 10 dollar filing fee. He
referred to the Association, when he was on the witness stand, as
4'a sort of a union." Easterly testified that the Association had de-
layed becoming incorporated and holding meetings because it had
not yet been recognized by the respondent and would not function if
for any reason the respondent did not recognize it. It is clear that
Easterly and his associates organized the Association only because
they expected it to be a means of inducing the respondent to reopen
the plant and not because of their interest in a labor organization
as such.
Some of the people who were invited to attend meetings of the
Association included the mayor of Litchfield; the secretary of the
Litchfield Chamber of Commerce ; the head of the First National
Bank, where the respondent does its banking; the supervisors of
North and South Litchfield Townships, who are in charge of ad-
ministering public relief; the chief of police and a police officer. The
mayor attended several of these meetings and, in addition, arranged
conferences between the Union and the Association, one of which
was attended by representatives of the Board. The mayor sought at
some of these joint meetings to persuade both organizations to give
up their union activities, and to persuade the Union to withdraw its
charges. The mayor expressed the belief that if they would consent
DECISIONS AND ORDERS 1139
to do this, the plant would reopen, they could return to -work and,
at some future date, possibly hold an election. Some of the Associa-
tion representatives were, of course, - illing to accede to the mayor's
suggestion, since they had organized the Association solely for the
purpose of inducing the respondent to reopen the plant and thereby
returning to work. However, the Union representatives were not
willing then to withdraw their charges.
The feeling prevalent among the employees that the respondent
would rather close the plant than recognize an outside labor organi-
zation was shared by the town officials, businessmen, the press, and
others who would be affected by the closing of the plant. That they
shared this feeling is shown by their activity-on behalf-of the-Asso-,
ciation. They were able to, and did, exert considerable pressure on
the respondent's employees to discourage their signing up with the
Union. George Strehle, son of the Chamber of Commerce secretary,
collected dues once a month for an association of downtown business-
men. One of these businessmen testified that Strehle, when he made
his rounds at the beginning of May, just before the plant closed.
down, asked him if any of respondent's employees traded'at his store.
On being told that they did, Strehle requested him to use his "in-
fluence to get them to form a union of their own." Strehle testified
that he did not "recall making that statement," but he did remember
telling him "to do all he could to keep this plant going."
Police Officer Goddin, who received his pay from the town and from
the First National Bank, was interested 'in the f6rmation of the
Association because he did not have "a bit of faith in the C. I. 0." and
he expected there would be trouble at the plant if any "but,a company
or local union" were to be organized.
The newspaper items quoted below are further examples of the
outside pressure exerted upon the respondent's employees to join an
unaffiliated union. The following item appeared in the Litchfield
News-Herald of May 24:
Dissension in the ranks of the S. W. O. C. Local appeared
today when the Litchfield Radiator Workers' Union, a group
opposing the C. I. O. affiliate, called an organization meeting for
tonight at 7: 30 o'clock at Parkview ballroom.
The Radiator Workers Union leaders claim to have an inde-
pendent organization opposed to C. I. O. domination, and repre-
senting at least 45 per cent of the employes of the Litchfield plant
of the American Radiator company.
John Easterly, 401 North Montgomery' avenue, organizer for
the Radiator Workers, told the News-Herald that, his organiza-
tion has between 110 and 120 members. There are approximately
1140 NATIONAL LABOR RELATIONS BOARD
250 employes of the American Radiator plant, excluding foremen
and office workers ineligible for membership in either union.
"We have reason to believe that when we obtain the necessary
138 members , the American Radiator plant (closed two weeks
ago) will reopen soon after," Easterly said.
The following item appeared in the Litchfield • News-Herald of
May 25 :
Members of the newly formed Litchfield Radiator Workers
Union, opposed to C. I. O. domination , elected officers in their
first meeting last night at Parkview ballroom and named a by-
laws committee to draw up rules for the organization.
A large crowd attended the meeting . Organizers claim nearly
majority representation at the Litchfield plant of the American
Radiator company. They also said that if a majority is obtained
by the independent union, similar to those at Springfield , Buffalo,
and Bayonne , N. J., plants of the company , the Litchfield plant,
closed two weeks ago Saturday , will reopen . A membership of
115 is . claimed . and 138 is the majority.
Officers elected last night, are:
President , Dale Timmons.
Vice President , William Davis.
Secretary , William Schmuck.
Treasurer , John Rill.
Members of the by-laws committee are Henry Mumme, Fred
Andres; R. Finke, William Houlihan and John , Easterly.
The new union claims to have secured at least a third of the
membership of the Lewis' S. W. O. C. organization , and leaders
say that more will be obtained . They claim that members of the
C. I. O. affiliate are dissatisfied with the organization and dislike
the "high handed" attitude of the local officers.
Besides Henry Mumme, several other relatives of foremen aided ' in
the formation of- the,Association . - Sometime after the Association
adopted its bylaws , they were amended to provide that "No direct
relation of a foreman or official of Litchfield plant shall be an officer
of this Association."
The Association bylaws provide that "Any person who may appear
on the list of employees of the American Radiator Company on file
with the Secretary of this Association" shall be eligible to member-
ship. It is interesting to note that the membership list contains the
names of all the employees in the Ware ( Shipping ) Room, which is
the department where James Moore , the supervisory employee who
had circulated the petition in the plant, was employed . This fact is
an indication of the influence he had upon those employees.
DECISIONS AND ORDERS 1141
Although the actual formation of the Association began after the
plant had closed down, the respondent's connection therewith is
clearly evident. The idea of organizing an independent union
stemmed from the respondent's activities in connection with the Plan ;
from the statements of supervisors that the respondent would close
the plant before it would recognize a C. I. O. union ; from the read-
ing of an announcement which, despite its avowed purpose, seems
clearly to indicate that the respondent, desired the continuance of the
Plan or the formation of a similar organization; and from the peti-
tion which was circulated in the plant, before it closed down, during
working hours. The organizers were motivated by a realization, as
a result of the statements and actions of the respondent, that the
respondent was strongly opposed to outside labor organizations. The
domination of the respondent is further indicated by the classes of
employees who helped to organize, and became members of, the Asso-
ciation. Furthermore, the activities of the public officials and busi-
nessmen on behalf of the Association must be directly attributed to
the respondent's expressed hostility toward outside labor organiza-
tions and its threats to close the plant rather than deal, with one. .
We 'find that the respondent has 'doiniriate'd"and "interfered' with
the formation and administration of the Association, and has con-
tributed support to it.
\? Te find that the respondent, by the acts above set forth, has inter-
fered with, restrained, and coerced its employees in the exercise of
their rights to self-organization, to form, join, or assist labor organi-
zations, to bargain collectively thioubh representatiVes'of',their owri
choosing, and to engage in concerted' activities for the purposes of
collective bargaining and other mutual aid and protection as guaran-
teed under Section 7 of the Act.
C. The discharges
Joe Eskra was discharged op April 15, 1936. He had=been, employed
at the Litchfield plant for about 10 years before his discharge. "It was
his job to charge the cupola with coke, pig iron, and gates. A cupola
is a type of furnace in which metal is melted to make iron. It is
approximately 30 feet high and 6 feet in diameter. The charging
floor is "sort of a second floor to the plant." On the charging floor
are small supplies of the materials used in charging the cupola and
the scales where the materials are weighed before they are cast into
the cupola. A crew of five works on the charging. One man always
' orks on the ground floor. It is his, job to, load the, pig, iron into the
cars. Two men work both on the ground floor and the charging floor.
One -of them loads coke, the other stove plate, into wheelbarrows.
1142
NATIONAL LABOR RELATIONS BOARD
The first step in the process is,to place on the elevator a truck of pig
iron and a wheelbarrow of coke. One of the men goes up on the
elevator with the material and wheels it off the elevator onto the
scales. The scale man -weighs it and makes the necessary adjustment
in quantity. After the weighing of this material, Eskra wheeled it
to the cupola and put it in. Another man then goes up on the eleva-
tor with the stove plate and throws it in himself after it has been
weighed. Eskra kept all this material in the cupola leveled off. This
is an important step in the process, since if the coke is not, properly
distributed, the heat is uneven, which causes the iron to melt unevenly,
resulting in "cold iron." This process was a continuous one through-
out the day.
An employee who had injured his foot and, therefore, could not do
his regular work, was given a temporary job as weigher. He was
instructed to watch the scales, take down the weights on a sheet of
paper, and keep' track of the total charges. Due to his injured foot,
however, he was unable to balance the weights, which made it neces-
sary for Eskra and the two men who go up on the elevator with the
material to perform additional work. Since all five of the cupola
workers were paid on a piece-work basis, the respondent arranged to
compensate them for the additional work as follows : The weigher was
to be paid 40 cents an hour, and the difference between that amount
and the piece-work wages he would ordinarily have received was to
be divided among the three men doing the additional work. Tibbs,
the cupola forethan, explained this arrangement to the men involved.
Eskra complained vehemently to Tibbs about the additional work.
Tibbs told Cashen, the foundry foreman, about Eskra's dissatisfac-
tion. Benedict happened to be talking to Cashen at the time. The
three of them went upstairs where, as Cashen testified, "Joe came
over to me hollering -I wouldn't say lie was hollering-'Do you want
me to do this?' and that was after Tibbs had told him what to do.
Benedict said `I wouldn't monkey with that fellow, I would just put
another fellow in his place' so I just told Tibbs to replace him."
It appears from the evidence that Eskra was not a satisfactory
worker, that he was frequently guilty of improper charging of the
cupola. Eskra admitted that Tibbs had often criticized his work; in
fact, that "it wasn't every day but towards the last it seemed like it
got to be every day" and "this lasted for quite a while." Cashen tes-
tified that neither he nor Tibbs had ever reported to Benedict the
unsatisfactory nature of Eskra's work. Benedict, however, testified
that he knew of Eskra's reputation as an unsatisfactory worker.
Eskra had been a miner before coming to work for the respondent,
and had been a member of the United Mine Workers. He testified
that'he discussed union organization with Puckett "quite a bit" and
DECISIONS AND ORDERS 1143
"told him any time he had a charter and wanted members, I was will-
ing to join it." That appears to have been about the extent of his
participation in any of the various efforts that ivere made to organize
a genuine union in the plant.
Although it appears that Benedict and Cashen might have acted
with undue haste in ordering Eskra's discharge, upon weighing all
the evidence we do not find that Eskra was discharged for union
activity . The allegations of the complaint , in so far as they are based'
on the discharge of Joe Eskra for union activity, will, therefore, be
,dismissed.
Charles Coatney was discharged on September 10, 1935. He had
been employed at the Litchfield plant for about 20 years, off and on.
He had been setting chaplets for about 15 years before his discharge.
Chaplets are small wires about 3/4 of an inch long, which go around
the pattern to hold the cores and thereby regulate the thickness of
the pipe. Chaplet setters work in groups of three. The pattern is
placed on a wagon, which runs along a track . The No. 1 man walks
back and forth within a range of about 20 feet and sets as many chap-
lets as he can. The No . 2 man and the No. 3 man set down the flask,
which is a steel rim about 4 inches high that goes around the top of the
pattern. They also set the chaplets that the No. 1 man missed. The
No. 2 man kicks off the pattern with an air kicker. The No. 3 man
holds it under the facing hopper and pulls the lever which sprinkles
facing sand onto the patterns to a depth of about 4 inches. The two
parts of the pattern, the cope end the drag , are always run down in
pairs, the cope following the drag. When the cope has been cast, it
is lifted up and swung around, so as to fit book fashion, and set down
gently on the core and the drag . When it is all put together , the hot
metal is poured in at the bottom and consumes the core. The,core
lasts just long enough to regulate the thickness of the radiator, which
is 3is of an inch. If the chaplets are-not set properly,'the metal will
rise and there will be more thickness on top.
On the day Coatney was discharged, Hull, assistant foreman in,
the foundry, marked a pattern on which he claimed he observed Coat-,.'
ney, who was the No. 2 man, leave out some chaplets. Hull told
Cashen about the pattern he had marked so that Cashen could go, up
and see it . Cashen testified that he was interested in finding out how
that pattern came out, that in fact he was "always interested in the;
welfare of the castings ." Hull and Cashen permitted the pattern, to
go through, although they knew that to do so would result in a bad
casting being made. After the pattern had gone through, Hull called
Coatney in and showed it to him and told him the pattern was ruined
because he had left out some chaplets . Coatney examined the pipe as
106791-38-vol. vii-73
1144 NATIONAL LABOR RELATIONS P,OARD
best he could , since it was red hot, and testified that he was unable to
see anything wrong with it. However, he said he would watch the
chaplets more carefully in the future , but Hull told him that he was
discharged.
There is considerable evidence that Coatney 's work had always
been satisfactory. It is significant that the two men working with
Coatney were Easterly and James Johns, the first of whom became the
leader in organizing the Association, and, the second of whom was the
son of a foreman and a member of the Association . A number of,
witnesses testified that a few chaplets might be , and frequently were,
left out with no resultant damage. The men were sometimes repri-
manded for leaving out chaplets , but it was most 'Unusual for anyone
to be discharged or even threatened with dismissal for this reason.
Furthermore , there was testimony that the chaplets could, and some
times did, fall out when the pattern was kicked off, or during some of
the subsequent operations.
Coatney had worked in the mines in 1920. He became 'a member
of the United Mine Workers at that time, and retained his member-
ship ever since. He explained to the employees at the Litchfield
plant "what better things they could have if they got organized."
He was active in some of the attempts to organize the Litchfield
plant and was one of a small group of employees who, shortly before
his discharge, had each paid $1.00 to send for an American Federa-
tion of Labor charter. His ideas as to the advantages of an outside
union were well known to his supervisory officials. He had openly
criticized the respondent 's Plan, when it was inaugurated , to Alex
Johns, who at that time was his foreman, and to Gross, who was then
superintendent of the plant . Coatney was an employee representa-
tive from the beginning of the Plan to the date of his discharge, and
was chairman of the Works Committee during the last year of his
employment . He had always been a very active representative. He
had taken up a number of grievances for the men , and had been
energetic in seeking to obtain wage increases for them. Just before
his discharge, as set forth above, he had refused, despite Benedict's
request, to participate in removing or replacing Whitley as a repre-
sentative.
From the above facts we conclude that the respondent discharged
Coatney because of his attempts to influence the respondent's em-
ployees to join an outside labor organization. Before his discharge
he was earning an average of $21.00 a week. He earned $294.00
between the date of his discharge and the date of the hearing.
We find that, by the discharge of Charles Coatney, the respondent
has discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in a labor organization, and
DECISIONS AND ORDERS 1145
thereby interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
D. The lock-out
The complaint alleges that the respondent on May 7, 1937, dis-
criminated in regard to the hire and tenure of employment of all its
employees by locking them out and discharging and refusing to
reinstate them. The respondent maintains that it closed its Litch-
field plant because of the state of its inventory and because of busi-
ness conditions, and expects to reopen the plant as soon as business
conditions warrant.
There was evidence of previous shut-downs which were occa-
sioned by business conditions, the taking of inventory, and other
reasons. However, the shut-down of May 7 differs from these other
shut-downs in various ways. In previous shut-downs, it was cus-
tomary to stop the core makers first, since core making is the initial
step in the manufacture of radiators, and to stop the other operations
as each succeeding step in the manufacture of radiators was com-
pleted. However, on May 7 the various processes of the work had
gone forward all day. Closing down as suddenly as the respondent
did on May 7, therefore, resulted in leaving quantities of partially
completed products on hand, some of which, the cores for example,
would be valueless if kept too long, since they deteriorate: The
respondent also had on hand large supplies of raw materials. There
were orders outstanding for additional quantities of raw materials,
which, came in after the plant was closed.
The assembly room employees were called in a few times after the
shut-down to finish assembling some of the stock on hand. There-
after the foremen did whatever work was necessary in connection
with sending out orders, calling in a few men to assist them from
time to time. The office force also continued to work. James Moore
worked until the week of June 18.
It appears that other long shut-downs were preceded by reduced
schedules. On this occasion the plant had been working at full pro-
duction for a considerable period before May 7. Moreover, in previ-
ous shut-downs the respondent usually gave the employees notice
ranging anywhere from a few hours to a few days. On this occasion
the employees had no notice. Benedict received the notice after the
first shift of employees had left the plant, but deferred posting it
until practically everyone had gone home. The men received notice
in the course of the week end by word of mouth or through the news-
paper. A picnic and a series of softball games had been scheduled
for the employees during the coming summer. The respondent denied
1146 NATIONAL LABOR RELATIONS BOARD
any direct connection with these matters. However, there was much
testimony to the effect that the respondent participated in and, in fact,
took the lead in arranging these recreational activities, even to the
extent of foremen selling tickets for the ball games during working
hours. The announcement about vacations with pay was made just
a few days before the plant closed down. Several employees testi-
fied about orders their foremen showed them just before the plant
closed down, some of them marked "RUSH RUSH RUSH." How-
ever, the respondent claimed that these were shop orders, to complete
their stock on certain products, and not customers' orders. Further-
more, a number of orders which came into the Litchfield plant after
it was closed were transferred to other plants. The respondent's
production manager gave several reasons for the transfer of such
orders, namely : That there was a surplus of the products ordered at
some other plant or warehouse; that it might be possible to ship the
entire order from one point rather than ship part of it from the
Litchfield plant and part from another point; that the orders in ques-
tion might have been sent to the Litchfield plant from one of the
branch offices by mistake; or that it was necessary to conserve the stock
at Litchfield in order to maintain a balanced inventory there.
A number of employees testified about statements made by their
foremen to the effect that the respondent would close down the plant
if they organized an outside union. Furthermore, one of the foremen
testified that when he asked Benedict about certain new equipment,
Benedict remarked, "When we see what our C. I. 0. friends do, we
may not need it." Whitley went to the plant about 2 weeks after it
had closed down to get back the deposit he had made on his goggles.
Fellers, when he refunded the deposit, asked Whitley if he would like
to go back to work. Whitley replied that he certainly would, where-
upon, Whitley testified, "He said, `you guys ought to have had better
;sense than to do what you have done.' I said, `What?' He said,
`Signing up with John L. Lewis."'
The respondent introduced in evidence quantities of statistics and
various kinds of data indicating that the Litchfield plant was closed
because of business conditions. Besides the radiation kept at the
plants where it is manufactured, the respondent stated that it has
-about 30 warehouses and about 150 consigned stocks. At the end of
1936 the respondent had about 20 million square feet of radiation.
The production estimates sought to bring the inventory figure down
to about 12 million at the end of 1937. However, the actual sales for
the first 3 months of 1937 were almost 11 per cent below the estimates,
,so that by the end of March the inventory was up about 41/2 million
feet. 'The respondent then decided to cut down production by about
,one million feet a month. At that time the Bayonne plant, the
DECISIONS AND ORDERS 1147
Clarence Wooley plant in Buffalo, and the Litchfield plant were
making the same type of radiation. The production schedule at the
beginning of 1937 was 1,400,000 feet a month for Bayonne, 750,000
feet a month for Clarence Wooley, and 450,000 feet a month for Litch-
field. The respondent closed down the Clarence Wooley plant on
April 8, 1937, thereby reducing production about 30 per cent. At the
end of April the actual sales were still considerably under the esti-
mates, and the inventory continued to increase to such an extent that
the respondent claims it became necessary to close down the Litchfield
plant, thereby further reducing -production by about 25 per cent,
making a total decrease of about 45 per cent. The seeming dispro-
portion of these percentages is due to the fact that the respondent was
seeking not only to reduce production, but also to reduce its inventory
carry-over by about 8 million feet.
The Springfield plant, which does not make the same product as is
made at Litchfield, but at which an independent organization was
functioning, closed about July 1, 1937, because of excessive inventory.
Other plants of the respondent, which make the same kind of radia-
tion as is made at Litchfield, have been closed for years, some of them
since about 1929. The only plant making the same kind of radiation
that is still in operation is the Bayonne plant, which is the largest
of these plants and makes many different kinds of radiation not made
at either the Clarence Wooley or the Litchfield plants. Although the
respondent claims that a plant cannot profitably be operated at partial
capacity, the output at Bayonne has been greatly reduced since the
closing of the Clarence Wooley and Litchfield plants. May usually
marks the beginning of the seasonal upswing in the building industry,
and hence in the radiator industry. However, the fact is that the re-
spondent's business grew steadily and progressively worse during the
summer months. The respondent's inventory in the kind of radiation
made at Litchfield was, at the end of May 1937, larger than it had
been in several years. Moreover, the discrepancies between the esti-
mates and actual sales were wider each succeeding month. This de-
crease in sales the respondent claims it was able to predict by means of
reports it receives from its jobbers, as well as by means of information
and forecasts issued by various government departments and private,
agencies.
There are other unusual features about the May 7 closing which
indicate the suddenness with which the respondent determined to close
the plant. For example, it appears that neither the treasurer of the
respondent, who is in charge of making up the budgets and estimates
of sales and production, nor the director of production control, who
is in charge of looking after the distribution of products and main-
taining balanced inventories at the various stocking points, nor the
1148 NATIONAL LABOR RELATIONS BOARD
secretary of the manufacturing division, whose duties include analyz-
ing cost reports as issued from the plants each month and handling
general plant accounting between the plants and the treasurer's de-
partment, knew of the closing of the Litchfield plant until a few days
after it was closed. The closing of a plant necessitates a revision of
some of these estimates and schedules. Therefore, it appears that the
treasurer, at least, would be notified ahead of time about the closing of
a plant, particularly since he performs his duties in the New York
office, from which the order to close the Litchfield plant was issued.
In connection with the Clarence Wooley plant, for example, the treas-
urer testified as follows: "I knew they were going to close the Clar-
ence Wooley plant a day or two before it was closed. I knew that they
actually closed it, I have forgotten whether it was the day they closed
it or the day afterwards. My president told me first they were going
to close it and then that it had been closed." It appears that the order
to close the Litchfield plant was transmitted by telephone from Clar-
ence Wooley, chairman of the Board, from New York, to Locke in
Detroit, and from Locke to Benedict.
Although the evidence indicates that the respondent would have
closed the Litchfield plant for business reasons shortly after May 7,
1937, it clearly appears from all the evidence that the respondent on
that date precipitately closed its plant and laid off its employees for
the purpose of discouraging membership in the Union and frustrating
effective functioning by it as an agency for collective bargaining.
We find that the respondent, by laying off its employees on May 7,
1937, discriminated in regard to their hire and tenure of employment,
thereby discouraging membership in the Union, and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
E. The refusal to bargain collectively
1. The appropriate unit
The complaint alleged that the production and maintenance em-
ployees, exclusive of all foremen, office employees, and salaried em-
ployees, employed in the Litchfield plant of the respondent, consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act. The unit set forth
in the complaint is the normal industrial unit. The record discloses
no reason for deviating from that unit. Accordingly, we find that
the production and maintenance employees, exclusive of foremen,
office employees, and salaried employees, employed in the Litchfield
plant of the respondent, constitute a unit appropriate for the pur-
poses of collective bargaining, and that such unit will insure to.the
DECISIONS AND ORDERS
1
1149
employees the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent introduced in evidence a pay roll for a 4-week
period ending May 1, 1937, and also a list of its employees with their
classifications. The respondent stated in its stipulation on interstate
commerce that it employs 268 men at the Litchfield plant when the
plant is operating. The pay roll contains 257 names. The classified
list contains 275 names. Of these 275 employees, the classifications
indicate that about 239 are production and maintenance employees.
At the hearing, the Union submitted its application cards and a
typewritten list of its members, with permission to withdraw the
cards after the names had been checked. All the parties were given
an opportunity to check this list against the cards. The respondent
admitted that the names on the list were the same as the names on the
cards, but questioned the genuineness of the signatures and that the
members were all employees of the respondent.
Puckett and Murphy, president and secretary of the Union, testi-
fied that they had personally witnessed the signing of all but about
15 of the cards, and in the absence of any evidence to the contrary,
we may assume that the signatures were all genuine. The application
cards originally contained the name of a different company. The
handwriting changing such name to the name of the respondent was
the same on all the cards. Furthermore, Puckett wrote in the dates
on the cards when the men signed them, so that the dates on many of
the cards were in the same handwriting. This likeness of hand-
writing on the cards was the basis of the respondent's question as to
the genuineness of the signatures. The question as to whether or
not all the members of the Union were employees was probably due
to the fact that the list of members contains the names of "former"
employees, such names being Eskra and Coatney.
We have checked the names on the Union list against the names
on the pay roll submitted by the respondent, and find that, with the
exception of Eskra, all the members on the list submitted by the
Union were employees of the respondent during the pay-roll period
ending May 1, 1937.
The list submitted by the Union contains 172 names, and the dates
on which the application cards were signed. According to this list,
137 had signed up with the Union up to and including May 6.
The Association also submitted a list of its members. It appears
from a comparison of the lists that a number of Union members,
influenced by the assurance of the Association organizers that they
would get back to work only by signing up with the Association, did,
1150 NATIONAL LABOR RELATIONS BOARD
on or after May 20, sign up with the Association also. However, we
have found above that the Association was organized as a result of
the unfair labor practices of the respondent. The-respondent cannot,
by unfair labor practices, operate to change the bargaining repre-
sentative previously selected as the unfettered choice of the majority
of its employees. We cannot, therefore, recognize the change in
designation of their bargaining representative by some of the em-
ployees as indicating a free expression of choice by those employees.
Consequently we give no weight to such change, and hold that the
Union remained the representative of the majority.
We find that on May 6, 1937, the majority of the respondent's em-
ployees in the Litchfield plant in an appropriate unit had designated
the Union as their bargaining agent. Accordingly, we find that on
May 6, 1937, and at all times thereafter, the Union, pursuant to Sec-
tion 9 (a) of the Act, was the exclusive representative of all the.
employees in the appropriate unit for purposes of collective bargain-
ing in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
3. The refusal to bargain
On May 20, 1937, the executive committee of the Union called at
the plant. Benedict was out of town. Fellers was present, but was re-
luctant even to discuss the matter in Benedict's absence. The Union's
representatives offered to return to work without any demands
if the respondent would consent to an election, but Fellers would give
them no answer. Since he told them that Benedict might be back the
following day, the Union committee called at the plant again on May
21, but Benedict had not yet returned. The Union committee spoke
to, Fellers again, and told him this time that Union members would
refuse to continue to work, a few at a time, with the foremen doing
work ordinarily done by the employees.
On June 7 Benedict and George B. Logan, the respondent's at-
torney, had a conference with the Board's Acting Regional Director.
The Union did not succeed in contacting Benedict until June 9, at a
conference arranged by the Board. The Union at that time claimed
to represent a majority of the respondent's employees at the Litch-
field, plant. Benedict, however, had been presented by the Associa-
tion that afternoon with its claim to represent a majority-of the
employees. Benedict flatly refused to bargain with the, Union com-
mittee, stating two reasons for his refusal: (1) that since both the
Union and the Association claimed to represent a majority of the
employees, the respondent did not know which organization actually
represented a majority; and (2) that there was nothing to bargain
about in any event since the plant was closed and the respondent,
DECISIONS AND ORDERS 1151
,therefore , had i,o employees at Litchfield . The first reason is clearly
without merit since we have found that the Union represented a ma-
jority of the employees on June 9, 1937, and that the Association is
a company -dominated organization . It was obviously futile for the
Union to offer proof at the conference of its majority in view of the
second reason given by the respondent for its refusal . This reason is
also without merit since we have found that the respondent discrim-
inatorily laid off its employees. Since their work ceased as a conse-
quence of an unfair labor practice , they were and still are employees
for the purposes of the Act. Furthermore, despite the position taken
with the Union committee, the respondent considered that the plant
was closed only temporarily and would reopen as soon as business
conditions warranted , and so stated at the hearing . On June 23, 1937,
the respondent sent letters to its employees stating, "If you have a
Group Life Insurance Policy, our company has made arrangements
so Qiat it can be continued through the present lay -off, provided the
monthly premium is paid by you on or before the 25th of each month."
The men employed at the Litchfield plant can reasonably expect to re-
turn to work when the plant reopens after such a temporary lay-off.
Since these individuals have retained their status as employees of the
respondent, they had and still have a right to bargain with the re-
spondent concerning the reopening of the plant , the terms and con-
ditions thereof , and other related matters.
We find that the respondent , on June 9, 1937, and thereafter, re-
fused to bargain collectively with the Union as the representative of
its employees in respect to rates of pay, wages , hours of work, and
other conditions of employment.
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 de-
scribed in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States and
tend to lead to, labor disputes burdening and, obstructing commerce
,and- the free flow of commerce.,
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and con-
tributed support thereto. By such domination and interference the
respondent has prevented the free exercise of its employees' right
to self-organization and collective bargaining . In order to restore
to the-employees the full measure of their rights guaranteed under
1152 NATIONAL LABOI: RELATIONS BOARD
the Act, and in order to remedy the respondent's unlawful conduct,
we shall order the respondent to refrain from recognizing the Asso-
ciation and to disestablish it as a. representative of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of work, and other condi-
tions of employment.
. We have found that the employees of the respondent who were
,laid off on May 7, 1937, ceased work as a result of the respondent's
unfair labor practices. They would therefore normally be entitled
to reinstatement with back pay. However, we have also found that
the respondent would have closed the plant for business reasons
shortly after May 7, 1937, even if the respondent had not indulged
in these practices; and at the time of the hearing the plant was still
closed down. Since it is impossible to determine from the record
precisely how soon after May 7, 1937, the respondent would have
closed the plant for business reasons, except that it would have been
a short time, we shall not require the respondent to pay the employees
back pay during the time the plant was closed down. However, we
shall order the respondent, as jobs become available, to offer rein-
statement to their former or substantially equivalent positions to
the employees laid off on May 7, 1937. Inasmuch as several months
have elapsed since the date of the hearing and the respondent may
have reopened its plant with employees who were not employed
prior to May 7, 1937, such reinstatement shall be effected in
the following manner : All employees hired after May 7,
1937, shall, if necessary to provide employment for those to
be offered reinstatement, be dismissed. 'If thereupon there is
not sufficient employment available for the remaining em,
ployees, including those to be offered reinstatement, all available
positions shall be distributed among such remaining employees in
accordance with the respondent's usual method of reducing its force,
without discrimination against any employee because of his union
affiliation or activity, following a system of seniority to such extent
as has heretofore been applied in the conduct of the respondent's
business. Those employees remaining after such distribution for
whom no employment is immediately available shall be placed upon
a preferential list prepared in accordance with the principles set
forth in the previous sentence and shall thereafter, in accordance
with such list, be offered employment in their former or substantially
equivalent positions as such employment becomes available and before
other persons are hired for such work.
If the respondent has not reopened its plant, reinstatement shall
be effected by placing the employees who were laid off on May 7, 1937,
upon a preferential list, to be offered employment as jobs become
DECTSTONS AND ORDERS 1153
available at the plant in accordance with the principles set forth in
the preceding paragraph.
We have found that the respondent discharged Charles Coatney
because of his attempts to influence the respondent's employees to
join an outside labor organization. Since his discharge constitutes
an unfair labor practice, we shall order the respondent to offer him
reinstatement in the same manner as the employees who were laid
off on May 7, 1937, and to award him back pay for the period from
the date of his discharge up to and including May 7, 1937, and for
the period from 5 days after the issuance of this order to the date
of offer of employment or placement upon the preferential list men-
tioned in the previous paragraphs, less the amounts, if any, which he
has or will have earned during those periods.
Since a majority of the respondent's employees in the unit which
we have found appropriate designated the Union as their bargaining
agent before the respondent's unfair labor practices caused some of
them to change their designation to the Association, we shall order
the respondent, upon request, to bargain collectively with the Union
as the representative of its employees.
We shall also order the respondent to cease and desist from its
unfair labor practices.
The allegations in the complaint with respect to Joe Eskra will be
dismissed.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Local Lodge No. 1770, Amalgamated Association of Iron, Steel
and Tin Workers of North America, and Litchfield Radiator Work-
ers Association are labor organizations, and the Plan of Employees'
Representation was a labor organization, within the meaning of
Section 2 (5) of the Act.
2. All of the employees at the Litchfield plant laid off by the
respondent on May 7, 1937, were, at the time of their lay-off, and at
all times thereafter have continued to be, employees of the respond-
ent, within the meaning of Section 2 (3) of the Act.
3. The production and maintenance employees, exclusive of fore-
men, office employees, and salaried employees, employed at the
Litchfield plant of the respondent, constitute a unit appropriate for
purposes of collective bargaining, within the meaning of Section 9
(b) of theAct.
4. Local Lodge No. 1770, Amalgamated Association of Iron,
Steel and Tin Workers of North America, was on May 6, 1937, and
1154 NATIONAL LABOR RELATIONS BOARD
at all times thereafter has been the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
5. The respondent, by refusing to bargain collectively with Local
Lodge No. 1770, Amalgamated Association of Iron, Steel and Tin
Workers of North America, as the exclusive representative of its
employees in an appropriate unit, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (5) of the
Act.
6. The respondent, by dominating and interfering with the for-
mation and administration of the Plan of Employees' Representation
and Litchfield Radiator Workers Association, and by contributing
support to them, has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
7. The respondent, by discriminating in regard to the hire and
tenure of employment of the employees laid off on May 7, 1937, and
thereby discouraging membership in a labor organization, has en-
gaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
8. The respondent, by discriminating in regard to the hire and
tenure of employment of Charles Coatney and thereby discouraging
membership in a labor organization, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
9. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activity for the purposes of collective bargaining or 'other
mutual aid and protection as guaranteed in Section 7 of the Act, has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
It. The respondent, by discharging Joe Eskra, has not engaged
in and is not engaging in unfair labor practices within the meaning
of Section 8 (1) and (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
DECISION S AND ORDERS 1155
the respondent, American Radiator Company, and its officers, agents,
successors, and assigns, shall :
1. Cease and desist :
(a) From refusing to bargain collectively with Local Lodge No.
1770, Amalgamated Association of Iron, Steel and Tin Workers of
North America, as the exclusive representative of its production
and maintenance employees, exclusive of foremen, office employees,
and salaried employees;
(b) From in any manner dominating or interfering with the ad-
ministration of Litchfield Radiator Workers Association, or with
the formation and administration of any other labor organization
of its employees, oI contributing support to said Association or to
any other labor organization of its employees;
(c) From discouraging membership in Local Lodge No. 1770,
Amalgamated Association of Iron, Steel and Tin Workers of North
America, or any other labor organization of its employees, by dis-
charging, laying off, and refusing to reinstate any of its employees
or in any other manner discriminating in regard to their hire and
tenure of employment, or any term or condition of employment;
(d) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
tion, 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 and 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) Refrain from recognizing Litchfield Radiator Workers As-
sociation as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
rates of pay, wages, hours of work, or other conditions of employ-
ment, and completely disestablish said organization as a representative
of its employees;
(b) Offer to the employees who were laid off on May 7, 1937, im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges in the manner set forth in the section entitled
"Remedy" above, placing those employees for whom employment is
not immediately available upon a preferential list in the manner
set forth in said section;
(c) Make whole the employees ordered to be offered reinstatement
for any loss of pay they will have suffered by reason of the respond-
1156 NATIONAL LABOR RELATIONS BOARD
ent's refusal to reinstate them following the issuance of this order
l:y payment to them respectively of a sum equal to that which each
would normally have earned as wages during the period from 5 days
after the issuance of this order to the date of the offer of employment
or placement upon the preferential list required by paragraph (b),
less the amount, if any, which each will have earned during that
period;
(d) Offer reinstatement to Charles Coatney in the manner pro-
vided in paragraph (b);
(e) Make Charles Coatney whole for any loss of pay he has
suffered by reason of his discharge by payment to him of a sum of
money equal to that which he normally would have earned as wages
from the date of his discharge up to and including May 7, 1937, and
for the period from 5 days after the issuance of this order to the
date of offer of employment or placement upon the preferential list
required by paragraph (b), less the amounts, if any, which he has or
will have earned during those periods;
(f) Upon request, bargain collectively with Local Lodge No. 1770,
Amalgamated Association of Iron, Steel and Tin Workers of North
America, as the exclusive representative of the production and main-
tenance employees, exclusive of foremen, office employees, and salaried
employees, at its Litchfield, Illinois, plant, in respect to rates of pay,
Wages, hours of work, or other conditions of employment;
(g) Post immediately notices to its employees in conspicuous places
throughout its Litchfield, Illinois, plant and upon its gates, stating
(1) that the respondent will cease and desist in the manner set forth
in paragraphs 1 (a), (b), (c), and (d) of this order; and (2) that
the respondent will refrain from any recognition of Litchfield
Radiator' Workers Association as a representative of any of its
employees and completely disestablishes it as such representative ;
(h) Maintain such notices for a period of at least thirty (30) con-
secutive days from the date of posting;
(i) Notify the Regional- Director for the Fourteenth Region in
writing within ten (10) clays from the date of this order what steps
the respondent has taken to comply herewith.
It is further ordered that the allegations of the complaint setting
forth the discriminatory discharge of Joe Eskra be, and they hereby
.are, dismissed.