Crowell Portland Cement Co.

National Labor Relations Board - Board Decisions

Apr 18, 1942

40 N.L.R.B. 652 (N.L.R.B. 1942)

In the Matter of COWELL PORTLAND CEMENT COMPANY, A CORPORATION,
and INTERNATIONAL UNION, MINE, MILL & SMELTER WORKERS OF
AMERICA, LOCAL 356 and UNITED CEMENT, LIME & Gypsum WORKERS,
INTERNATIONAL UNION, LOCAL No. 86, SUCCESSOR TO LIME & CEMENT
EMPLOYEES UNION OF CONTRA; COSTA COUNTY, No. 21074, PARTIES TO
THE CONTRACTS.
Case No. C-390.Decided April 18, 1942
Jurisdiction : cement manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: discouraging membership in one union by
disparaging statements, threats' to shut down, and actual shut-down-unlaw-
fully assisting rival organization by : requesting formation of, granting financial
and other assistance to, soliciting membership for, requiring designation of or
membership in as a prerequisite to a return to work following shut-down, and
executing illegal closed-shop contract with, such organization-execution of
closed-shop contract with successor to assisted organization.
Discrimination: lock-out of employees because large majority were members of
union opposed by employer ; refusal to permit return to work following shut-
down'except upon designation of or membership in a labor organization where
no closed-shop agreement was in existence ; execution and enforcement of
closed-shop contract with minority organization assisted and maintained by
employer.
Collective Bargaining: majority of union established by union roll book entries;
duplicate receipts for initiation fees and dues payments, authorization cards,
certain other evidence-refusal to bargain collectively by : insisting upon
designation of another organization as a prerequisite to recognition of employee
representatives ; executing illegal closed-shop contracts with employer-assisted,
minority, organization.
Remedial Orders : employer ordered to cease and desist unfair labor practices,
withdraw recognition from employer-assisted organizations unless and until
certified by the Board, upon request to bargain collectively with proper organi-
zation ; reinstate locked-out employees with back pay.
Held: no merit in contention that Board is without power to issue order be-
cause of employer's restriction of its interstate activities following commis-
sion of unfair labor practices where employer was engaged in interstate
commerce at the time of commission of unfair labor practices. Contention
is also without merit for the following reasons: (1) changes in operations
were adopted not for reasons of efficiency or profit but in an attempt to
evade Board's remedial order; (2) operations of employer, despite change of
policy, 'still are interstate in character; (3) and the presumption that such
changes are of a temporary character.
Unit Appropriate for Collective Bargaining : all employees at or about em-
ployer's plant excluding executives, supervisory employees of the rank of fore-
40 N. L. R. B., No. 119.
652
COWELL PORTLAND CEMENT COMPANY 653
men and above , persons having the right to hire and discharge , hospital
employees , watchmen , guards, those employed at Rancho de los Cowell , shovel
operators and shovel oilers or apprentices , truck drivers and tractor operators.
Mr. Johna, T. McTernan, for the Board.
Thelen ct Marrin, by Mr. Max Thelen and Mr. Gordon Johnson,
of San Francisco, Calif., for the respondent.
Mr. Charles J. Janigian, of San Francisco, Calif., 'and Mr. Herbert
Thatcher, of Washington, D. C., for Local 86.
Gladstein, Grossman, Margolis and Sawyer, by Mr. Ben Margolis,
of San Francisco, Calif., for Local 356.
Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 28, 1939, the United States Circuit Court of Appeals
for the Ninth Circuit, having considered a petition filed with it
pursuant to Section 10 (c) of the National Labor'Relations Act, 49
Stat. 449, herein called the Act, by the National Labor Relations
Board, herein called the Board, praying enforcement of an Order 1
issued by the Board against the Cowell Portland Cement Company,
Cowell, California, herein called the respondent, issued an opinion 2
and on the same date entered a decree remanding the case to the
Board for such action as it might deem proper. On February 16,
1940, the Board issued an order 8 setting aside its prior Decision and
Order, and on April 29, 1940, an order setting aside the record and
the pleadings, with certain exceptions, theretofore made in the pro-
ceeding, and referred the case to the Regional Director for the
Twentieth Region (San Francisco, California), for the purpose of
holding a new hearing ordered by the Board.
Upon second amended charges duly filed on May 8, 1940, by
International Union, Mine, Mill & Smelter Workers of America,
Local 356, herein called Local 356, the Board, by the said Regional
Director, issued its third amended complaint dated May 11, 1940,
against the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and
(7) of the Act. Copies of the third amended complaint, accompanied
Matter of Cowell Portland Cement Company, a Corporation and International Union
of Mine, Mill & Smelter Workers of America, Local #1356, 8 N L. It. B. 1020s National Labor Relations Board v. Cowell Portland Cement Company. 108 F (2d) 198
$ 20 N L. R B. 454.
654 _ DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
by notice of hearing, were duly served upon the respondent, Local
356, and United Cement, Lime & Gypsum Workers, International
Union, Local No. 86, herein called Local 86.
With respect to the unfair labor practices,-the third amended com-
plaint alleged in substance (1) that in furtherance of a preconceived
plan to induce its employees to change their affiliations from Local
356 to a local union affiliated with the American Federation of Labor,
the respondent discriminated in regard to the hire and tenure of
employment of 178 named employees at its Cowell, California, plant,
who were, members of or affiliated with Local 356, by discharging
and locking out said employees on July 16, 1937, and thereafter re-
'fusing to reinstate them unless they became members of an American
Federation of Labor union; (2) that on and after July 16, 1937, the
respondent refused to bargain with Local 356 which had been
designated by a majority of the employees in an appropriate unit as
their representative for collective bargaining; (3) that, following
the lock-out of July 16, 1937, Lime & Cement Employees Union of
Contra Costa County, No. 21074, herein called Local 21074, was a
labor organization established, maintained, and assisted by various
unfair labor practices of the respondent which culminated in the
execution of illegal contracts with Local 21074 and its successor,
Local 86, requiring membership in said Locals as a condition of em-
ployment at the respondent's plant at a time when those organiza-
tions were not the representatives of the majority of the respondent's
employees in the appropriate unit; (4) that during May, June, and
July 1937, and thereafter, the respondent urged, persuaded, and
warned its employees to refrain from becoming or remaining mem-
bers of Local 356; and (5) that by these and other acts and conduct
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held from June 3 to August 6,
1940, at Concord, California, with the exception of sessions on June
29, July 2 and 3, and August 6, which were held by consent of all
parties at San Francisco, California, before Thomas S. Wilson, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board, the respondent, Local 86, and Local 356 were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. At the com-
mencement of the hearing the respondent appeared specially to move
the dismissal of the complaint on several grounds, in substance that
the Board lacked jurisdiction over the business of the respondent,
that the Board was without power to proceed against the respondent
on the third amended complaint, and that the Board was barred from
COWELL PORTLAND CEMENT COMPANY 655
proceeding because of lathes. These motions were denied by the Trial
Examiner. The respondent thereupon filed its answer, preserving
its various motions to dismiss, and denying that it had engaged in
the unfair labor practices. At the same time an answer was also
filed by Local 86, in substance denying that it is a successor to Local
21074 and asserting the validity both of the contract executed be-
tween the respondent and Local 21074, and that made between the
respondent and Local 86. -
During the course of the hearing motions by counsel for the Board
to amend the third amended complaint by the deletion, correction,
and insertion of certain names appearing or to appear upon the list
of persons allegeclly•discriminated against were granted by the Trial
Examiner.4 Motions by counsel for Local 356 to amend the second
amended charges in certain respects on the face thereof` were likewise
granted, as were motions to amend on the -face certain other plead-
ings in minor respects. The' Board further moved to amend the
third amended complaint as amended with respect to certain allega-
tions concerning the business of the respondent and the integration
of its business with that of the Henry Cowell Lime and Cement
Company and the Bay Point and Clayton Railroad. This motion
was granted by the Trial Examiner over objections' by the respond-
ent. Thereafter the respondent filed an "Answer of Cowell Portland
Cement Company to Third Amended Complaint, as amended,"
containing, in addition to the denials and affirmative allegations of
its original answer, certain additional allegations in. part traversing
the allegations of the third amended complaint as variously amended
and in part setting forth new matter with respect to the appro-
priate unit. Local 86 at the same time filed an "Amended Answer"
embodying in part similar material. Objections to certain portions
of these pleadings by the Board and by Local 356 were overruled
by the Trial Examiner. At the conclusion of the Board's case and
again at the end of the hearing the respondent renewed its motions
to dismiss the complaint which had been submitted specially at the
commencement of the hearing. The Trial Examiner denied these
motions at the close of the Board's case, reserved ruling upon them
when submitted at the close of the hearing, and later denied them in
his Intermediate Report.5 A motion by Local 86, for the dismissal
4 There was objection by the respondent and Local 86 in only one instance on the
ground that the person added to the list (Appendix A of the third amended complaint
as amended ) had not applied for membership in Local ' 356 prior to July 16 , 1937, the date
of the alleged discrimination against him . We affirm the Trial Examiner in overruling
this objection ; see footnote 34 infra.
G As above stated , the respondent moved for dismissal on the ground that the Board
was without power to proceed against the respondent on the third amended complaint.
The respondent 's motion was based upon the technical ground that Section 10 (b) of the
Act and corresponding language in the Board's Rules and Regulations ( Series 2, as
amended ) state that a complaint "may be amended . . . at any time prior to the issu-
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint for failure to prove the material allegations thereof
was denied by the Trial Examiner at the conclusion of the Board's
case and taken under advisement by him when renewed by Local 86
and the respondent at the conclusion of the hearing." During the
course of the hearing rulings were made by the Trial Examiner on
other motions and on objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On November 20, 1940, the Trial Examiner filed an Intermediate
Report, copies of which were served upon all parties, finding that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) 'and Section 2 (6) and (7), of the Act, and recommending
that the respondent cease and desist therefrom, and, affirmatively,
that the respondent withdraw recognition from Locals 21074 and 86
as the exclusive bargaining representatives of its employees, that it
cease giving effect to the closed-shop contracts executed with these
organizations, that it bargain collectively with Local 356 upon re-
quest, and that it offer reinstatement with back pay to the 178 named
employees, or, in the event that certain of said employees had re-
turned to work with the respondent after the date of the discrimina-
tion against them, that the respondent make such employees whole
for the losses in pay incurred during the period from the date of
the discrimination to the date of their return to work with the
respondent.
On December 28, 1940, the respondent filed exceptions to the Inter-
mediate Report and on January 6, 1941, a brief in support thereof.
Local 86, on December 28, 1940, also filed exceptions to the Inter-
mediate Report. - A brief was filed by Local 86 on January 15, 1941.
On March 27, 1941, pursuant to notice duly served upon the parties,
a hearing for the purposes of oral argument was held at Washing-
ton, D. C., `before Chairman Harry A. Millis and Mr. Edwin S.
Smith, former member of the Board. The respondent and Local 86
appeared by counsel and presented oral argument. Board Member
William M. Leiserson has considered the full transcript made at the
oral argument. The Board has considered the briefs filed by the
respondent and Local 86 and their respective exceptions to the Inter-
ante of an order based thereon." It is contended that issuance of the order which was
denied enforcement by the Circuit Court precluded further amendment of the complaint.
Since the Board had previously set aside its order , there was of course no order out-
standing against the respondent at the time the Board caused the complaint to be amended
In its decision the Circuit Court held that the Board "instead of petitioning here . .
for the enforcement of its order , should have set it aside, amended as complaint, and
proceeded to a new hearing . . [ Italics supplied ] The Board has acted in conformity
with this opinion
s The findings of the Ttial Examiner in his Intermediate Report operated as a denial
of these motions
COWELL PORTLAND CEMENT COMPANY 657
mediate Report. Insofar as the exceptions are inconsistent with the
findings, conclusions of law, and order set forth below, the Board
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Cowell Portland Cement Company, is a California
corporation engaged primarily in the manufacture of Portland
cement under the brand name Mt. Diablo at a plant located at Cowell,
Contra Costa County, California. The operations of the respondent
are conducted upon a 900-acre tract of land on which is located the
town of Cowell, the plant, the quarry, and a ranch known as Rancho
de Los Cowell. In addition to the plant and quarry the respondent
maintains a mercantile store known as the Cowell Mercantile Com-
pany, various other buildings, and numerous dwellings which some
of its employees occupy.
Shortly prior to 1900, Henry Cowell, members of his family, and
W. H. George, incorporated the Henry Cowell Lime and Cement
Company, herein called the Lime Company, which has been princi-
pally engaged since its incorporation in the sale of many types of
building materials. In 1907 the same persons incorporated both the
respondent and the Bay Point and Clayton Railroad, herein called
the B. P. & C.
At the time of their formation and thereafter the stock of each of
these corporations was owned wholly by Henry Cowell, his heirs, and
W. H. George, except for a short period of time when for financial
reasons the shares of the respondent and the B. P. & C. owned by the
Cowells were transferred to the Lime Company. By 1937 I. M.
Cowell and S. H. Cowell, heirs of Henry Cowell, and W. H. George
were the only stockholders of the Lime Company, which in turn with
W. H. George owned all the stock of the respondent and the B. P. & C.
These individuals also constituted the board of directors and the
officers of each of the corporations'in 1937. For many years prior to
January 12, 1938, W. H. George was the secretary and general
manager of each of the corporations and directed their activities.
On November 1, 1939, George sold his shares in the three corpora-
tions to the Cowells and severed all connection with the corporations.
At the time of the hearing the Cowells owned all the stock of the
Lime Company which in turn owned all the stock of the respondent
and B. P. & C. After George's separation, I. M. Cowell, S. H. Cowell,
Elsa Everding, Max Thelen, and Gordon Johnson constituted the board
of directors of each of the corporations. H. M. Bresee succeeded
George as the secretary of each of the corporations.
455771-42-vol. 40=42
658 DECISIONS OF NATIONAL LABOR\ RELATIONS BOARD
The three corporations function together as one business enterprise.
A joint office and principal place of business is maintained by them
in San Francisco, California. The respondent, as before stated, is
primarily engaged in the manufacture of Portland cement. The
entire product of the respondent is sold exclusively to the Lime" Com-
pany at a price not determined by offer and counter offer or by open
market bidding, but established, on occasion retroactively, so that the
Lime Company will show a bookkeeping profit on the resale to the
ultimate consumer, and apparently regardless of whether the respond-
ent will show any, profit in the manufacture of the cement.' Al-
though, as stated, the cement is sold by the Lime Company, it is
shipped on direct consignment from the respondent to the purchaser
or to retail stores of the Lime Company. Approximately 50 percent
of the cement shipped by the respondent is conveyed over the 81/2-mlla
track of the B. P. & C., which extends from Cowell to Port Chicago,
California, where it connects with Southern Pacific and Santa Fe
Railroad lines; and to Clyde; California, where it connects with a
subsidiary of the Western Pacific Railroad. Although the B. P. & C.
acts as a common carrier and is regulated by the Interstate
Commerce Commission and the California Railroad Commission,
its business is almost entirely confined to the hauling of materials
for the respondent."
7 A survey of the financing of the two corporations gives further indication of the inte-
grated nature of their business . The respondent ' s plant was built with funds supplied
by the Lime Company . This sum has been outstanding for a number of years, yet no
interest has been charged thereon , nor does it appear that any mortgage or other security
is held by the Lime Company for the indebtedness . As above indicated , the price allowed
by the Lame Company to the respondent for its products is established unilaterally. At
least for the period of years following 1929 the respondent has suffered bookkeeping losses
in its operations , the amount of such losses being carried by the Lime Company. Yet no
cash transfers or other settlements have been made between the two corporations. The
respondent maintains a bank account solely for the purpose of meeting its pay roll.
The amount of its pay roll and that of the B P. & C , for which the respondent acts
as paymaster , is each month submitted by the respondent to the Lime Company which
places that amount in the bank to the credit of the respondent In 1938 Gearge, as
general manager of both corporations , established the price of the respondent ' s cement for
the purposes of creating inter-company credits and debits At the end of 1938 George,
by the device of raising retroactively the puce of the iespondent ' sl cement during the
entire year 1938, established a credit on the respondent 's books and a debit on those of
-the Lime Company which reduced the respondent 's operating deficit for that year. In
1939 , on or about December 9, E. D. Barnett , who had previously been subordinate to
George as plant-superintendent of the respondent and who had succeeded George as
general manager of the respondent , although not of the Lime Company , approached E II.
Connick , auditor and office manager of the Line Company, with a request that the
respondent be given "a little more allowance" on the cement it manufactured Barnett
expressed the opinion that the re^ponaent "was entitled to have the puce retioactive'to
January 1 , 1939 " Thereafter , on December 14, Connick , without authorization from the
Lime Company 's board of directors , increased by 15 cents per barrel the price allowed
the respondent by the Lime Company for the respondent 's cemuent , and made this raise
retroactive for the year 1939. There was no consideiation given by the respondent in
return for Conmck 's action
8 Since George 's departure Barnett has engaged in the management of operations both
of the respondent and the B P & C Repair pants and like supplies for both corporations
are pure based in the main by the Lime Company
I
COWELL PORTLAND CEMENT COMPANY 659
With the exception of gypsum, an essential ingredient of
cement, the raw materials used by the respondent in the manufacture
of cement are obtained from its own quarries at Cowell. The re-
spondent used 4,716,140 pounds of gypsum in 1936; 4,526,000 pounds
in 1937; 5,512,000 pounds in 1938; and 5,808,420 pounds in 1939, all
of which was shipped to the respondent from the State of Nevada.
During these years a variety of cement known as "Medusa" was
purchased from points outside the State of California, shipped to the
respondent at Cowell, there stored, and then resold from Cowell
with regular sales of the respondent's Portland cement.9 In 1936
these shipments of Medusa cement to Cowell amounted to 1,329.75
barrels; in 1937, to 1,520.75 barrels; in 1938, to 1,526.25 barrels; and
in 1939, to 1,862.25 barrels. The machinery, equipment, and supplies
shipped to the respondent at Cowell from points outside the State
of California amounted to 392,882 pounds in 1936; to 680,618 pounds
in 1937; to 485,832 pounds in 1938; and to 372,813 pounds in 1939.
During 1936, the respondent sold 388,076.5 , barrels of cement, of
which 41,069.25 barrels were` shipped to points outside the State of
California. During 1937, 382,397 barrels of the respondent's cement
were sold, of which 33,213.5 barrels were similarly shipped in inter-
state commerce. During 1938, 405,691.75 barrels of the respondent's
cement were sold, of which 12,929.75 were shipped in interstate com-
merce. In 1939, 476,085 barrels of the respondent's cement were
sold, of, which 7,377 barrels were shipped in interstate commerce."'
II. THE ORGANIZATIONS INVOLVED
International Union Mine, Mill & Smelter Workers of America,
Local 356, is a labor organization affiliated with the Congress of
Industrial Organizations, herein called the C. I. 0., admitting to
membership employees of the respondent.
Lime & Cement Employees Union of Contra Costa County, No.
21074, was a labor organization affiliated with the American Federa-
tion of Labor, herein called the A. F. of L., which admitted to
membership employees of the respondent.
United Cement, Lime & Gypsum Workers International Union,
Local No. 86, is a labor organization affiliated with the A. F. of L.,
admitting to membership employees of the respondent.
'Title to this cement after purchase from the manufacturer was retained by the Lime
Company.
10 The respondent contends that as the Lime Company has been the nominal purchaser
of the respondent 's cement , although never taking possession of a major portion thereof,
the respondent has never sold cement in interstate commerce The contention is without
merit The Circuit Court of Appeals in its opinion remanding this caee to the Board,
supra, found the corporate division of function not significant in examining and determining
the issue of jurisdiction adversely to the respondent.
660 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Events prior to July 16, 1937
Prior to 1937 there was no labor organization among the employee's
of the respondent. On or about February 8, 1937, a representative
of the A. F. of L. Teamsters requested General Manager George to
Iequire that trucks conveying cement from the respondent's plant be
driven by members of the Teamsters. Although the drivers were not
employees of the respondent, George readily assented to this request
and thereafter asked contract haulers to use none but union drivers.
On February 28, 1937, certain officials of the Contra Costa County
Building Trades Council, an A. F. of L. affiliate herein referred to
as the Building Trades Council, inquired of George what was going
to be done about organizing the employees at Cowell. George replied
that in his opinion a vertical union under the A. F. of L. should be
established.
On May 1, 1937, the respondent's plant reopened for full produc-
tion following a regular winter shut-down. George, who had been
increasingly concerned with the possibility of a union at the plant,1'
put into effect a new wage scale which increased the base rate of
pay from 40 to 50 cents, with proportionate increases throughout, for
the purpose, as he testified, of attempting to forestall self-organization
at least for the remainder of the year. In the meantime, shortly after
his conference with the Building Trades Council, George, after
further study, had confirmed his prior conclusion that "if and when
the time came" that the respondent's employees insisted upon organiz-
ing, "it-ought to be a Federal charter under the California Federation
[of Labor] and the American Federation [of Labor]." 1.2
In contravention- both of George's attempt to forestall self-
organization and his desire that the employees affiliate with the
A. F. of L. in the event of self-organization, the respondent's em-
ployees soon after the opening of the plant began organizing them-
selves into a C. I. O. union with some help from C. L. Cassidy, who
at that time was engaged in organizational work for both the C. I. O.
and the A. F. of L. On May 27, Local 356, composed primarily of
employees of the respondent, was chartered by the C. I. O. By the
11 George had read a newspaper account of the decisions of the United States Supreme
Court on April 12, 1937 , upholding the constitutionality of the Act , and had immediately
sought the advice of Max Thelen, one of the respondent 's attorneys , as to whether the
Act was applicable to the respondent . Thelen gave a "curbstone " opinion that the Act
was not applicable.
12 By this George meant an organization embracing "all of the employees of the plant
in one union rather than craft organizations "
OOWELL PORTLAND ' C'E'MENT COMPANY 661
end of June a large majority of the respondent's employees had
either joined or applied for membership in Local 356.
On the date of the issuance of the charter to Local 356, George
called employee Mathew Mogus, one of the leaders in the organiza-
tion of Local 356,• and its secretary, into his office. George, accord-
ing to Mogus, inquired for whom Mogus was collecting money, and
Mogus replied, "for the C. I. 0." George stated that the C. I. O.
was "run by a bunch of Reds and Communists," that he was sur-
prised that Mogus was "mixed up" with them. George asked what
men had joined the C. I. O. Mogus told him that about 90 percent
had joined, but refused to divulge their names. George stated, that
if it .were necessary he would close the plant down before he would
have any dealings with a labor organization. While George denied
having referred to any "labor organization" in his conversation with
Mogus, he admitted in his testimony that he had told some of the em-
ployees during this period that "the plant would have to be shut down
before it could operate C. I. 0." Mogus testified that immediately
after leaving George's-office, his foreman, H. R. Brandenburg, told
him that the stigma of his association with the C. I. O. and' the "Com-
munist group" would be carried not only by Mogus but by his family
and any offspring he might have, and inquired why the employees did
not try to organize into an A. F. of L. union. Brandenburg denied
having made these statements. The Trial Examiner, who observed
the demeanor of witnesses at the hearing, refused to credit Branden-
burg's denial. We find that Brandenburg made in substance the re-
marks attributed to him by Mogus.
On June 17, George attended a meeting of the Building Trades
-Council at Martinez on its demand to show cause why the respondent
should not be placed on the"unfair list." The meeting was devoted to
a discussion of what George planned to do concerning the organization
of the respondent's employees. George stated that a vertical A. F. of
L. labor union would be the only desirable type of organization for
the respondent and the employees. Von Tellrop, president of the
Building Trades Council, told the officials present that he had written
William Green, president of the A. F. of L., about the matter, and that
Green had informed him that the A. F. of L. would issue a charter
for a vertical union. According to George, the meeting then broke
out into a "family quarrel" among the union officials over the issu-
ance of a federal labor union charter which certain representatives of
craft organizations opposed. George testified that he left with the
statement, "When you make up your minds, let me know." The
record does not disclose that the Building Trades Council threatened
at the meeting to place the respondent on the unfair list.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 18, George called upon Edward Vandeleur, secretary
of the California State Federation of Labor in Sam Francisco, an
A. F. of L. organization, and requested him to charter a federal labor
union for the Cowell plant. Vandeleur promised to investigate.
Several times thereafter George telephoned Vandeleur asking that
speedy action be taken on his request.13
While George was thus engaged in activity inimical to Local 356
and favorable to the A. F. of L. and interfering with and influencing
the internal affairs of the latter organization, Local 356 sought to es-
tablish bargaining relationships with the respondent. On June 23;
1937, the bargaining committee of Local 356 met with E. D. Barnett,14
plant superintendent at Cowell under George, to discuss a proposed
collective bargaiiiil g agreement covering wages and working condi-
tions which Local 356 had previously submitted to the respondent.
Barnett stated that he thought that the parties could reach an under-
standing on" working conditions without difficulty, but that the
Union's proposed wage scale was too high. He reminded Local 356
of the May increase and stated that the respondent would have to
audit its books to determine if it could pay any higher wages. The
parties also discussed various other paragraphs of the proposed con-
tract. During this meeting Barnett cautioned the union committee
that if George ever "got into the picture, the thing might go up in
smoke."
Thereafter, the respondent and- Local 356 met again on June 30
and July 7. During the June 30 meeting Gordon Johnson, an at-
torney for the respondent, asked the members of the bargaining com-
mittee who they were and whom they represented. They stated that
they were the bargaining committee of Local 356 and represented all
but a few of the respondent's employees. The respondent requested
no further proof of these representations. The bargaining committee
asked the respondent for written recognition. Barnett replied, "Here
we have been sitting down meeting with each other and negotiating,
and this is the second meeting now, so what more do you want?"
At these meetings the parties discussed the provisions of the proposed
contract.
George was aware of and violently opposed to these negotiations.
Thus, George testified at the hearing that it was his opinion in 1937
that Barnett and Johnson, by conducting negotiations with the
i
"Throughout this period, George entertained the plan of calling a meeting of the
employees at which he would be requested to speak and would explain why the employees
must choose an A F. of L rather than a C I. 0 affiliated union George testified that
he believed that this plan would succeed if it were found necessary, as the employees
were "a reasonable bunch " George, however, did not carry the plan through because, as
he testified, "things happened a little too fast at the end."
14 By notice dated June 25, 1937, the Cowells appointed Barnett to act for them as their
labor relations representative subject_ to confirmation of his actions by them.
COWELL PO ATLAND CEMENT COMPANY 663
C. I. O., ' were engaging in a "sinister conspiracy" against the best
interests of the respondent , which patently required the establishment
of an A. F.'of L.• union. And, as shown herein, Barnett informed
representatives of Local 356 on July 14 that George had been like 'a
"caged -tiger" since the commencement of negotiations , and that he
ivas fearful just how George was going to "cut loose."
Prior to 1937 the respondent had customarily shut the plant down
semi-annually , once in the summer season and again in the winter.
Following the reopening of the plant on May 1, 1937, Barnett ex-
pressed the hope or belief to various of the respondent 's employees that
the plant would continue operations ' throughout the summer season
and.until ' wiliter weather conditions should make operations of the
quarry impractical .' On July 9, 1937 , 2 days after the last conference
hereinabove referred to between Local 356 and Barnett, George tele-
phoned Barnett to inquire if the plant was in shape for a shut-down.
Although Barnett and George both testified to this telephone conversa-
tion, their testimony as to the nature of Barnett 's reply is contra-
dictory. According to George , Barnett replied that the plant might
be shut down "any time within the next two weeks. " Barnett, on the
other hand , denied that he had made any reference to a period of
time, but testified that he informed George that "the plant was in
good shape for a shut down any time he wanted to shut down."
On the day following this conversation , George sought to deter-
inine the exact degree of success which Local 356 had attained.
Summoning J. C. Ross, his personal friend and an employee of the
I espondent , George inquired of Ross, according to the uncontradicted
testimony of the latter, how much union activity there was in the
plant and what percentage Ross thought "they had signed up." Ross
replied that he had been told that about 90 percent of the employees -
had joined the-C. I. O. George replied that he could not believe this;
that "it would be murder to operate with the C. I. O. union."
On July 12, after George , dissatisfied with Vandeleur 's response to
his pleas of urgency, had written directly to President Green asking
that the A . F. of L.' issue a federal labor union charter for the re-
spondent 's employees , Von Tellrop notified George that the charter
would issue as requested . Von Tellrop handed George some A. F.
of L. application cards and asked George,to secure enough signa-
tures so that the charter could be issued. On July 13, George began
efforts to obtain charter members. He summoned Victor Sayers, an
old-time employee who had joined the C . I. 0., and, according to the
15In view of the testimony of several of the employees that Barnett at various times
made such statements , we do not credit Barnett ' s denials thereof. The Trial Examiner
in his Intermediate Report stated that he "was impressed by the evident desire of Barnett
to change facts in a manner more satisfying to the respondent than the facts themselves
would warrant." The record supports and we are in full accord with this conclusion.
664 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
uncontradicted testimony of Sayers, said, "The C. I. O. is purely
Communistic. It wouldn't do here. We could have a little company
union of our own here." Sayers interrupted to say that a company
union was illegal. George then continued, "We can't, however, have
a company union here; that wouldn't do because the A. F. of L
would boycott our product. We can have an A. F. of L. union here."
George then explained that he had some A. F. of L. applications and
that it was necessary to obtain seven or eight charter members. He
asked Sayers to sign one as a charter member. Sayers requested time
to consider the matter.
On July 14, George, in behalf of the respondent, paid to the A. F.
of L. $24 in dues. This payment is noted on the records of the Lime
Company as a disbursement of the Lime Company charged to the
respondent.
Pursuant to prior arrangement, the respondent and Local 356
met again on July 14. The respondent submitted a wage counterpro-
posal which would, have-affected the,wages of approximately 25 per-
cent of the employees and requested that Local 356 submit this
counterproposal to its membership. The union representatives re-
quested that the respondent also submit a counterproposal on working
conditions so that the bargaining committee could present to the
union membership terms which affected all the union members. The
respondent agreed that it would attempt to submit this further
counterproposal by 5 p. m. on July 16, as a meeting of Local 356
was scheduled for the evening of July 16. The parties then adjourned
the conference without agreeing upon a date for the next bargaining
meeting.
Following the adjournment, certain C. I. O. representatives brought
to Barnett's attention the fact that George had just requested one
Francis, a C. I. O. member, to join a different labor organization,
and stated that they did not wish to file charges with the Board in
view of the peaceful and harmonious negotiations then in progress
between them and Barnett. According to Mogus, who was then pres-
ent, Barnett replied : "Well, I'll tell you. If I were you I would go
the limit as far as Mr. George is concerned. I have been tossing in
bed at nights just thinking about the way he was going to cut loose.
He has been just like a , caged tiger ever since this thing started."
Barnett, although not specifically denying this testimony, gave a
somewhat different version of his remarks during this conversation.
We find that Barnett made in substance the statements attributed to
him by Mogus.
On July 15, George recalled Sayers to his office. Sayers told George
that he would not join the A. F. of L. George characterized the
C. I. O. as being "purely Communistic." Sayers asked why the re-
10
OOWELL PORTLAND CEMENT COMPANY 665
spondent was conducting negotiations with an organization of that
type. George then replied, according to the uncontradicted testimony
of Sayers : "Well, that is a hard question to answer. A great mistake
has been made. However that has all been fixed up now."
2. The shit-down of July 16, 1937; the strike
On July 16, the Building Trades Council placed a picket at each
of the two entrances to the respondent's property. These men carried
signs stating that the respondent was "unfair" to the Building Trades
Council. At noon that day a group of council officials called upon
Barnett at the plant and informed him that the pickets had been
placed at the entrances to the plant because the employees had not
affiliated with the Council "100 per cent." 16 Barnett informed the
A. F. of L. officials that he knew nothing about the matter and re-
ferred them to George. Barnett testified that he tried, but failed,
to reach George by telephone-as soon as the council officials left the
plant. Soon afterwards Barnett drove to the entrances to the plant
property and observed the pickets, then proceeded to the neighboring
town of Concord where he telephoned Johnson, one of the respond-
ent's attorneys at San Francisco, and told him about the visit by
the A. F. of L. delegates and the presence of the pickets. Johnson
replied that he would ascertain, and inform Barnett of, the reason for
the A. F. of L. activity.
George, whose custom it was to spend a part of the time at the
respondent's San Francisco office, and part at Cowell, arrived at
Cowell from San Francisco sometime in the afternoon of July 16
On his way to the plant he saw and talked with the pickets. At
about 3': 30 o'clock in the afternoon George telephoned Barnett and
ordered : "Barnett shut the plant down except the pumps." This
was the first time in, Barnett's •experience that the date for an in-
tended shut-down had not been definitely fixed prior to putting it
in effect. The order issued by George on this occasion envisaged a
more drastic and sudden curtailment of operations than had ever
before taken place in the respondent's history.
Shortly prior to receiving George's order to close the plant, Bar-
nett received a return telephone call from Johnson in San Francisco.
As a result of this conversation, in which, Barnett testified, he was
informed that the respondent's counterproposal promised Local 356
on that day could not be submitted "until the atmosphere cleared
10 Barnett testified that the council officials informed him that they had threatened
George with this picketing at the meeting in June if the employees did not affiliate with
the Council by July 15 However, neither George nor any other witness testified that
the council officials had actually made any such threat at the June meeting
"Cowell is about 1 hour from San Francisco by automobile.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up a bit." - Barnett summoned Mogus to his office about 4: 15. Mogus
testified that Barnett informed him that the counterproposal could
not be submitted to Local 356 for the reason that "hell had broken
loose in San Francisco and Mr. Johnson is in the thick of it." Bar-
nett admitted having had a conversation with Mogus at this time,
but testified, in denial of the statement attributed to him by Mogus,
that he had said that "hell had broken loose at Cowell."' We credit,
as did the Trial Examiner, Mogus'version of the conversation.
Pursuant to the order issued by George and executed by Barnett,
the respondent suspended operations on the afternoon of July 16,
1937, and laid off all employees with the exception of a number of
supervisory employees, some of whom were thereafter detailed to
maintenance work, a few clerical employees, and certain miscellaneous
workers. On the evening of July 16, Local 356 held its scheduled
meeting. Since the union had not received the respondent's promised
'reply to the proposed working conditions set forth in the union's
original request for contract negotiations, the membership of Local
356 voted to table the respondent's wager proposal. The union mem-
bers also resolved that the reasons for the shut-down should be further
investigated.
On July 17 the membership of Local 356 decided that the shut-
down was' in fact an anti-union lock-out and resolved to strike in
protest against the lock-out and the respondent's failure to submit the
promised counterproposal on working conditions. On the following
day, July 18, Local 356 established a picket line around the plant.
3. Events subsequent to July 19, 1937
The sut-down ordered by George on July 16, 1937, halted the bar-
gaining negotiations which had before been in progress between the
respondent and Local 356. Within 3 days 'after the shut-down
Barnett's authority "in labor relations matters" which had been vested
in him by the Cowells on June 25 was revoked by notice which vested
such authority thereafter in Thelen and Johnson, attorneys for the
respondent.'' The counterproposal on working conditions which the
respondent had undertaken to convey to Local 356 as the next step in
the negotiations had not been submitted by that -time, nor was it ever
forthcoming thereafter. Instead, the respondent immediately after
the shut-down and throughout its duration openly and persistently
worked to bring about the establishment of an A. F. of L. federal
union, and made it clear that only upon the achievement of this end
would the plant reopen:
18 As shown herein, Thelon, Johnson's superior, met with representatives of Local 356
during the shut -down and stated that work could be commenced if the employees would
join the A . F. of L., but that the respondent "could not work with a C. I. 0 crew."
COWELL PORTLAND CEMENT COMPANY 667
On the day after the shut-down George summoned Ross, the em-
ployee whom lie had before questioned concerning the membership of
Local 356,1 to the office and, according to Ross' undenied testimony,
asked Ross whether he had any objection to joining the A. F. of L.
Ross replied that he had no objection if his joining would be of as-
sistance to the respondent. George told Ross to disregard the lay-off,
slip which had been issued to Ross at the time of the shut-down, and
to "stick around as they hoped to be operating soon." He further
informed Ross that he would not lose any pay by reason of the shut-
down. A few days later George told Ross that he "hoped to have
an A. F. of L. charter and it would be operating very soon." After
July 17 Ross worked as a guard or watchman under Foreman Levake.
Shortly after the shut-down, Ross testified and we find, Levake told
Ross that "the plant would open up as soon as they get an A. F. of L.
charter," and that "they couldn't open'up until they did." Levake
did not testify.
Also on July 17 Foreman Albee told Emil Butzer, an electrician"
who had been laid off because of the shut-down, that "if you want to
sign up with the A. F. of L. you can go back to work Monday
morning." Butzer replied that he could not join the A. F. of L as he
was already a member of Local 356. Albee then stated that if Butzer
did not wish to join the A. F. of L., he need not "stick around,"
that "you won't have a chance to come back if you don't sign up,"
and that Albee was "going to put in an application for another
electrician." On the following day, Albee again saw Butzer and
reiterated in substance his statements of the previous day, informing
Butzer that work was difficult to obtain and that Butzer should join
the A. F. of L. so that he "could get his job back." The foregoing is
based on Butzer's uncontradicted testimony. Butzer did not join the
A. F. of L. and he has not been reinstated.,-
Immediately after the shut-down, George "got mighty busy on
Vandeleur" to expedite issuance of the charter for an A. F. of L.
federal union, and continued his efforts to obtain charter members
for the proposed organization. On or about July 26, George advised
Ross by telephone that he was sending A. F. of L. application blanks
to the saddle room where Ross and two other employees, Cann and
Adams, were stationed. Shortly after this telephone conversation
George's chauffeur appeared with A. F. of L. -application blanks.
The three employees signed and returned them to the chauffeur.
George, according to his own testimony, also obtained as other charter
members for the A. F. of L., employees Koup, Pettitt, Givens, Draper
16 Ross was not a member of Local 356 , and, as before stated , he bad told George only
what ' he had learned of the organizational progress of the C. I . 0. affiliate front con-
versations with other persons.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Powers. In soliciting their signatures , George admitted telling
them that although their "party, church or lodge" was "their own
business ," "Mt. Diablo Cement had to be manufactured by the-
A. F. of L."
On August 9, Green of the A. F. of L. notified George by letter
that he had issued the federal labor union charter which George had
requested for the respondent's employees. Green also stated in this
letter that if necessary he would revoke the charter of Central Trades
and Labor Council of Martinez, an A. F. of L. organization which
had pledged support to Local 356. On the following day George-
summoned the men he had obtained as charter members of the A. F.
of L. to inform them that the charter had been issued and would
reach California in a few days. George assigned them a furnished
office in one of the respondent's buildings. The A. F. of L. paid
no rent for the use of this office from August until December.
. On August 10 employee Sayers, whom George had vainly tried to-
recruit to A. F. of L. membership prior to the shut-down, received a-
message left at his home that George wished to see him. Upon
arrival George displayed to Sayers the letter from Green stating that
an A. F. of L. charter had been issued. Sayers testified without
contradiction that George asked him :
to take Mogus to one side and tell him that this is a lot of damn
foolishness and that the [C. I. O.] boys can call off their strike
and call off their pickets, and we can, one of these mornings,
open up the plant and all the men can come back to work just
as they do after a seasonal shut-down, . . . they can all join
up with the A. F. of L. We can't have a C. I. O. union here
because the Federation of Mechanic's [sic] would boycott our
product and if you can't sell your cement, there is no use having
a cement plant. -
On August 11, Reynolds, one of the employees laid off because of the,
shut-down, applied to George for work. Reynolds testified without
contradiction that George stated that he thought that Reynold's re-
instatement could be arranged, but that Reynolds would have to.
join the A. F. of L. George instructed Reynolds to obtain an appli-
cation blank from Von Tellrop, an A. F. of L. official .20
On August 17 the sheriff of Contra Costa County summoned the
respondent and Local 356 to a meeting in an effort to settle the dis-
pute. The respondent and Local 356 agreed that they "would like
to see the matter settled." According to the undenied testimony,
mAccording to Reynold 's uncontiadicted testimony , Von Telhop stated that since
George had sent Reynolds to him , he knew that Reynolds "must be all right." A few
-days later Draper , a charter member of the A F of L, met Reynolds , and told him
that he, Reynolds, had received the A F. of L . "o k." and instructed him to report
for work that afternoon . Reynolds refused to return to work under these conditions.
COWELL PORTLAND CEMENT COMPANY 669
Thelen, the respondent's attorney, then informed the conferees that
an A. F. of L. charter had been procured, and proposed that the
men join the A. F. of L. affiliate. Thelen stated the following in
this connection : "If you fellows go into the A. F. of L. we can open
the plant and start working"; if the men refused to do so the A. F.
of L. would impose a boycott "and that under the circumstances
[the respondent] could not work with a C. I. O. crew." Local 356
rejected this proposal, and the conference adjourned.
On August 19, Ross and Koup, while ostensibly working as watch
men under the supervision of Foreman Levake, were ordered by
Levake to report to George at the respondent's San Francisco office .21
Upon their arrival together from Cowell, George informed them that
the A. F. of L. charter had reached San Francisco and was at Van-
deleur's office. George instructed them to go to Vandeleur's office,
to obtain the charter, to have it framed, and to have the cost charged
to the respondent.22 They obtained the charter from Vandeleur.
Vandeleur then informed them that they were to return to Cowell as
representatives of the California State Federation of Labor. The
respondent paid both Ross and Koup their full wages for the day,
reimbursed Koup for the automobile expenses of their trip to San
Francisco, and reimbursed Ross for the amount which he had ad-
vanced in having the charter framed. For some time after this trip
Koup and Ross acted as representatives of the California State Fed-
eration of Labor and were paid by the Federation. While so acting
Ross conferred many times with George and followed the latter's
instructions.
At a meeting held on or about August 20, Ross, George, and
B. C. Smith, the respondent's chief clerk, agreed that Smith would
place upon the respondent's pay roll any man whom Ross had signed
to membership in the A. F. of L. and "0. K.'d" to Smith. Upon
George's order Smith gave Ross a list of the employees who had
11 Koup was one of the persons George obtained as a charter member of the projected
A F. of L. organization . George testified at the hearing that he believed that he
had obtained Koup's assent to A. F. of L membership prior to the shut -down. Koup,
although a witness at the hearing , did not testify - concerning this point Koup's em-
ployment record during the shut -down is particularly significant . On the evening of
July 16, after the shut -down , Koup reported for work as night repairman . His duties
as such would ordinarily have terminated on the following morning because of the shut-
down. About an hour after he reported for work on the evening of July 16 , however,
George sent for him and told him that he was to be continued on the pay roll, but did
not tell him in what capacity . From the time of this interview until his assignment
to the California State Federation of Labor on August 19 , Koup received no instruc-
tions as to his duties Koup testified that his sole occupation during this period was
in sitting in the mill office except when he walked around the mill in company with
the night watchman "in order to keep awake."
t'i The facts herein found concerning the activities of Rose in establishing the A . F. of L.
and George 's direction thereof are based upon Ross' testimony , none of which was denied
by George . The expenditures by the respondent on behalf of the A. F. of L. herein
referred to are shown by records of the respondent which are in evidence
670 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
worked for the respondent prior to the shut-down so that he could
solicit their membership in the A. F. of L. On the same day Ross
officially opened the A. F. of L. office in the respondent's building in
Cowell where he remained in charge. He solicited men to sign
petitions authorizing the California State Federation of Labor to
act as their bargaining agency. Shortly after beginning such solici-
tation Vandeleur instructed Ross to concentrate on signing up persons
who had formerly worked for the respondent, and George later
told Ross to confine his efforts solely to this field. George authorized
Ross to advise such persons that they would have to join the A. F.
of L. in order to obtain further employment with the respondent.
George also authorized Ross to, and Ross did in certain instances,
inform men that a 10 cent per hour wage increase in the lower wage
brackets would be forthcoming after they accepted employment.
During one of many conferences between Vandeleur and George,
Vandeleur informed George that it would be necessary for the A. F.
of L. to have a contract with the respondent. Pursuant to George's
order, Thelen drafted a document designating the respondent and
Lime and Cement Employees Union of Contra Costa County, Local
No. 21074, as contracting parties. After certain changes had been
ordered by George, the draft provided that "the company
[respondent] will require membership in the Union [Local 21074]
as a condition of all present and future employment"; that employees
then working must, as a condition of continued employment, become
members of Local- 21074 within 15 days from the date of execution;
and that future i employees had to become members within 30 days
after employment. It was further stipulated that Local 21074, "will
promptly select a bargaining committee for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment
or other conditions of employment," and that the respondent would
recognize such committee and "make an earnest effort to reach a
satisfactory agreement with said committee." Further provisions
outlined a grievance procedure and included a clause prohibiting
strikes or lock-outs until after differences had been arbitrated. When
submitted to Vandeleur the draft was accepted with only one change
which required that new employees would have to join Local 21074
within 10 rather than 30 days from the date of their employment.
On August 26, Vandeleur instructed Ross by telephone to have
the A. F. of L. membership elect officers and either accept or reject
the proposed contract which was being sent to him at Cowell "by
special messenger." Ross testified without denial that this special
messenger turned out to be George. George told Ross to stress to
the employees "the seriousness of approving it [the contract] so
they could immediately get to work packing." On the evening of
COWELL PORTLAND CEMENT COMPANY 67i
August 26, 20 persons who had signed the California State Federation
of Labor petitions met, elected officers, and unanimously voted- to
accept the contract. At this time the chartered A. F. of L. federal
labor union had- been designated as bargaining agent by only 27
persons in all, 3 of whom may never have been employees of the
respondent."
On August 27, 1937, the officers of Local 21074 were driven at the
respondent's expense to Vandeleur's office. in San Francisco, and were
inducted into office. The contract accepted by the membership on
the previous evening was signed by two officers of Local 21074. ' Ross
delivered this signed copy of the contract to Thelen's office and re-
ceived in return a copy signed by George as the respondent's secre-
tary. The officers of Local 21074 who made the San Francisco trip
were paid their full day's wages by the respondent on George's order.
On this day the respondent opened the packing and sack house which
had been closed at the time of the shut-down and began shipping
cement for the first time since July 16.24
Following the execution of this contract each man hired by the
respondent was required to join Local 21074 before beginning work.
In many instances George instructed Koup, the owner of an auto-
mobile, to pick up prospective employees at various places other than
Cowell. Upon returning to Cowell these persons were first taken to
the A. F. of L. office where they were inducted into membership in
Local 21074 by Ross and were given clearance to Chief Clerk Smith
who placed them on the pay roll. By notice posted about this time
in front of the respondent's office at Cowell, local applicants for
employment were instructed to apply first at the office of Local
21074 where Ross was stationed. The respondent reimbursed Koup
for his automobile expenses in bringing prospective employees to
Cowell, paid numerous other bills incurred by Koup and others
in the transaction of A. F. of L. business, and until December 1937
paid the rent and board bill of Ross.
On September 7, 1937, the respondent informed a committee of
striking employees, and the committee reported to the union member-
ship, that the respondent, pursuant to its closed shop contract, would
require as a condition of reinstatement membership in Local 21074.
On October 1, the respondent reopened all the departments of the
plant. On the evening of October 22, 1937, the respondent met with
a bargaining committee chosen by Local 21074, as provided in the
" There were 196 employees in the unit which the respondent concedes to have been
appropriate for collective bargaining purposes working at the plant prior to the shut-down.
24 In the meantime the Lime Company had been meeting orders for cement which
would normally have been filled with the respondent's product by purchases of cement
from other producers
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract executed on August 26, and the parties negotiated concern-
ing wage rates , hours, and other conditions of employment. On
the following day, October 23, the respondent and Local 21074 exe-
cuted an agreement covering such matters .25 Although the respond-
ent prior to the shut-down had at first represented to Local 356
that it could not determine whether it could afford to pay higher
wages without first having an audit of its books and had later sub-
mitted to Local 356 a proposal granting wage increases covering
only approximately 25-percent of the employees, the respondent by
the agreement of October 23 with Local 21074 raised the basic wage
from 50 to 621/2 cents per hour and increased the wage rates of all
employees covered by the agreement who were earning above the base
rate, without first having had an audit of its accounts.'°
B. Concluding findings with respect to the foregoing events
1. Interference, restraint, and coercion
The facts above set forth demonstrate a flagrant course of conduct
by the respondent in discouraging membership in Local 356 and in
encouraging membership in an A. F. of L. organization to which the
respondent gave initial impetus and thereafter assisted and main-
tained. We find that the respondent, by the statements of George
and Brandenberg disparaging the parent affiliate of Local 356, by
the statements of the aforesaid and others of its representatives
urging and warning its employees to relinquish membership in Local
356 and to accept membership in a projected A. F. of L. organiza-
tion, by soliciting the establishment of, by interfering in the internal
affairs of , and by giving financial and other assistaiice to, the
A. F. of L. and Local 21074, by informing its employees following
the shut-down of July 16 that the respondent could not operate with
a' C. I. O. crew but offering to reopen its plant if the employees
changed allegiance to an A. F. of L. union, thereby establishing
designation of or membership in the A. F. of L. as a condition prece-
dent to the reemployment of the employees laid off on July 16 '27
and by other acts and conduct heretofore related, interfered with,
25 The contract included the following special seniority provision for Ross : "In the case
of employees of the Company having no special assignment on October 1, 1937, who were
loaned to the California State Federation of Labor for special duty , their seniority shall
date as from the time they were put on the company ' s pay roll."
26 According to the testimony of Conick , the Lime company 's auditor , the respondent's
books have never been audited
27As herein found , the unilateral establishment of designation of an A . F. of L of Bate
as bargaining representative , or of membership there's , as a condition ' precedent to a
return to employment of the employees thrown out of work by the shut -down of July 16
operated also as an illegal discrimination within the meaning of Section 8 ( 3) of the Act.
COWELL PORTLAND CEMENT COMPANY ,673
restrained and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act. '
2. Conclusions as to the shut-down of July 16, 1937; discrimination
with-respect to the hire and tenure of employment'
The complaint in substance alleges, and the respondent's answer
denies, that the respondent. terminated operations,on July 16, 1937,
pursuant to its plan to oust Local 356 from, and to establish an
A. F. of L. affiliate at, the respondent's plant. George testified in
this connection that he determined on the morning of July 16, to
effect a.regular seasonal shut-down for business reasons on July 17,
but that the discovery of the two Building Trades Council pickets
on the afternoon of July 16'.caused him to advance the predetermined
date of the shut-down 1 day. - In closing the plant George alleged
that he was not motivated by hostility to Local 356 or by favoritism.
to the A. F. of L., but solely by reason, of the fact that the pickets
had prevented trucks used in transporting the respondent's cement
to consignees from entering the plant since approximately 10:30 in
the morning of July -16, and that consequently there was "no use" in
continuing plant operations for an additional day when it was ]In-
possible to obtain trucking facilities for the respondent's finished
product.
Examination of the respondent's seasonal shut-down practices for
the years prior to 1937 alone renders suspect George's testimony-
concerning his determination to effect a shut-down on July 17 for
business reasons. During the 2 years previous to 1937 seasonal shut-
clowns occurred in each instance at the end of a month, and operations
were resumed at the beginning of a month with one exception when
operations were begun in the middle of a calendar month. The
following chart is taken from an exhibit submitted by the respondent :
1935
January 1-February 28------------------- Seasonal shut-down 21
March' 1-March 31 ------------------------ Full operation
April 1-April 30-------------------------- Seasonal shut-down.
May 1-May 31----- _----------------------- Full operation.
June 1-November 15---------------------- Seasonal shut-down.
November .16-December 31---------------- Full , operation.
1936
January 1-April 30----------------------- Seasonal shut-down.
-May 1-July 31--------------------------- Full operation.
August 1-September 30------------------- Seasonal shut-down.
October 1-November,30------------------- Full operation
December 1-April 30,1937 ----------------- Seasonal shut-down.
This shut-down was instituted at the end of operations on December 15, 1934.
455771-42-vol 40-- -43
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the limits of the above facts, from which it may be inferred
that it was the respondent's general policy to regulate its operations
by monthly periods'21 a decision to terminate normal operations was
dependent, according to the testimony of George, upon the amount
of cement and clinker, from which finished cement is ground, on hand,
and the prevailing market conditions. Much evidence was introduced
at the hearing concerning the actual state of the respondent's business
on July 16, 1937; the respondent arguing therefrom that George's
alleged decision to close the plant on July 17 was fully warranted
by the factors set forth above in determining shut--downs. But, while
the relevant evidence indicates that a shut-down at that time could
have been ordered without material injury to the respondent's long-
run operations, especially in view of the possibility of a later reopen-
ing prior to the necessary winter shut-down, the facts by no means
indicate that a shut-down was compelled or even expedient in view
of the state of the respondent's operations at that time. The respond-
ent's sales during the first 16 days of July 1937 were not materially
different from those of the corresponding month of the previous year
when full operations were continued.30 The respondent, however,
stresses the fact that its bins containing finished cement for general
shipment were almost entirely full on July 16. This condition,
however, had obtained oh several occasions before July 16, 1937,
without causing a cessation of plant operations. More significant is
the fact that the amount of clinker and raw materials on hand on
'July 16 was materially less than that which had been on hand at
the time of the two previous shut-downs, one of which occurred, as
above noted, on July 31, 1936, and the other on November 30, 1936.
Since all quarry operations were devoted to the production of raw
materials and a major part of the plant's operations were directed
to the preparation of clinker, it is essential to note that it would
have taken over 20 days of normal operations to fill up the clinker
"pile" or reserve to the state in which it was on July 31, 1936,31 and
that the raw material bins contained almost 2,000 tons less of ma-
terials on July 16, 1937, than on July 31,
29 It may be noted that a decision to close the plant on July 17 , 1937 , would have been
In violation of this apparently 'established practice
1* During the first 16 days of July 1937, 15,394 barrels of cement were packed for im-
mediate shipment. During the entire 31 days of July 1936 , the respondent packed for
immediate shipment 33,2841,, barrels of cement
81 This figure does not take into account withdrawals of clinker from the pile for grinding
into finished cement during the 20-day period. Such withdrawals would , of course,
lengthen correspondingly the period necessary to achieve parity with the July 31 1936,
reserves.
as The amount of clinker and raw materials on hand at the intervening winter shut-down
of November 30, 1936 , was even greater than that in storage on July 30 , 1936 It is
shown furthermore that the quarry was operated after the November shut-down to further
increase the stock of raw materials by over 2 .000 tons At a previous shut -down on
March 31. 1935 , classified by the respondent as a "summer" shut-down , the amount of
OOWELL PORTLAND CEMENT COMPANY 675
Furthermore, it_ is apparent -from Barnett's' actions during the
period immediately preceding July 16 that he had no indication,
despite his alleged conference with George on July 9, that a shut-
down would be ordered in the immediate future. Although Barnett,
as plant superintendent, would have been aware of any pressing neces-
sity for closing the plant, he hired a new employee, Farel Snavely,
to work in a department which was subject to normal seasonal
shut-downs as late as July 15.
In view of the above factors, we find, as did the Trial Examiner,
that there was -no economic necessity for closing the plant- on July
16 or 17. It is furthermore apparent, we believe, from the respond-
ent's previous practice of closing down at the end of calendar months,
not only that the respondent's operations were not subject to sudden
developments necessitating immediate shut-downs, but also that de-
cisions to shut down were not haphazardly made on the day previous
to putting them in effect. We are of the opinion and find that
George's order to close the plant on July 16 was not based in any
way upon a prior decision (not communicated to anyone as far as
the record shows) to terminate operations on July 17.
The nature and extent of George's activities in opposition to Local
356 prior to his ordering the shut-down of July 16 further impeach
his testimony.-that the shut-down was not motivated by such oppo-
sition. In broad outline the evidence reveals initial attempts by
George to discourage membership in Local 356 by derogatory state-
ments to Mogus, a leading figure in sits establishment, and to other
union members concerning the parent affiliate of Local 356, and by
warnings that the plant would be shut down if the employees per-
sisted in allegiance to the union of their choice. Failing, however,
by this direct attack to check the movement for self-organization,
George sought out officials of the A. F. of L. to request establishment
of a rival organization, and at various times urged that this be done
expeditiously, as "speed was necessary." Notified that a vertical
A. F. of L. organization such as he was demanding would be char-
tered, George immediately began active solicitation on its behalf.
On July 14 George paid dues to the A. F. of L.-an indication that
he had determined that the projected A. F. of L. union would succeed
in becoming established-and- on July 15 he stated, when inquiry was
made of him why bargaining negotiations were being conducted with
Local 356, that, although "a great mistake" had been made, "that
has all been fixed up - now." The shut-down which, he abruptly
raw materials on hand approximated that on band on July 16, 1937 . However , the quarry
again continued in operation after this shut-down to increase the raw materials in
storage by over 2,200 tons The shut-down of July 16, 1937, however, terminated. quarry
operations as well as operations which had never before been terminated by a shut-down.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered on the following day served to interrupt, permanently as
later events proved, these negotiations.33
The shut-down which occurred on Friday, July 16, differed mate-
rially and significantly from those which had taken place before.
At no previous shut-down had the plant been closed so quickly or
so completely. No opportunity was afforded for the performance of
tasks usually undertaken in contemplation of a shut-down. Espe-
cially significant is the fact that laboratory employees, including in
their number Mogus and Victor Sayers, who were usually retained
for a day or so after a shut-down, were laid off on July 16.without
finishing the tests upon which they had been working. The packing
and sack departments, which always operated during a normal shut-
down in order to ship out orders for the respondent's cement, were
closed immediately. The respondent, however, contends that no
significance may be attached to the closing of the packing and sack
house for the reason that the A. F. of L. pickets were preventing
shipments of cement from the plant. The respondent adverts to
George's testimony that he had intended on the day of the shut-down
to reopen these departments on the following Monday, but did not
do so because Local 356 had established a picket line outside tha
plant on the previous day. However, the employees in the packing
and sack house, many of whom were members of Local 356, received
lay-off slips on July 16, and there is no evidence that they were told
that the lay-off was to extend only over the week end or that orders
were issued to have them report back Monday. Furthermore, these
departments, although not reopened until August 27, 1937, were put
in operation while the picket line,of Local 356 was still maintained.
It is significant that August 27, 1937, was the date upon which an
A. F. of L. union, established and fostered by the respondent, was
formally inaugurated at Cowell and was contemporaneously given
a closed-shop contract by the respondent. George, at the hearing,
denied that any weight could be given to this circumstance. His
denial is plainly implausible in view of his conference with Ross on
the previous night, August 26, wherein he urged Ross to stress to the
members of the A. F. of L. organization "-the seriousness of.approv-
33 During examination by counsel for the respondent, George was asked of at were not
a fact that he "had no knowledge of the status of the negotiations with Local 356" at
the time when the order was given to close the plant . George replied , "I 'knew
nothing about any negotiations of the C I .0 and had nothing to do with it" In
view of George 's manifest interest in the entire situation , his expressed opposition to
Barnett 's attempt to conduct negotiations with Local 356, his statement to Sayeis on
July 15, above referred to, the urgency which he manifested in pressing the A F. of L
for a federal union charter , and his close questioning of employees concerning the
organizational piogress of Local 356 that is revealed in the record , we find that George
bad detailed knowledge concerning the course of the negotiations between Barnett and
Local 356:
COWELL PORTLAND CEMENT COMPANY 677
ing it [the contract containing the closed-shop provision] so they
could immediately get to .work packing."
The entire congeries of events subsequent to the shut=down of
July 16 demonstrates its illegal purpose. It is clear and we find from
the experiences of Butzer, Reynolds, Sayers, and the representatives
of Local 356 at the conference of August 17, that the respondent im-
mediately upon the shut-down and thereafter established membership
in the A. F. of L. as a condition of reinstatement of the employees
thrown out of work by the shut-down. It is further clear that the,
respondent was resolved to continue the shut-down until an A. F. of L.
organization was established at Cowell. The statements made to Ross
by George and Levake shortly after the shut-down alone reveal this
purpose. It is also shown that from July 16 until August 10 the
respondent completely ignored the majority representative of its
employees. However, on August 10, the day following receipt of
notice that an A. F. of L. organization would be chartered, George
summoned Victor. Sayers to propose a resumption of normal opera-
tions upon condition that the employees join the A. F. of L. This
open, flagrant exercise of economic power to coerce the employees
in the exercise of their rights was repeated by the respondent on
August 17,'10 days prior to the award of an exclusive recognition,
closed-shop contract to an A. F. of L. affiliate which the respondent
had labored unceasingly to bring into being.
Under these circumstances and upon the entire record, we find,
as did the Trial Examiner, that the respondent's general manager,
George, had determined, prior to July 16, 1937, that a labor organiza-
tion affiliated with the C. I. 0. could not be permitted to represent
the respondent's employees at Cowell ; that in view of the employees'
`-insistence upon collective representation by Local 356, George, prior
to July 16, had laid plans and taken action in concert with officials of
the A. F. of L. to establish an organization affiliated with the A. F. of
L. as the exclusive representative of the Cowell employees; and that in
furtherance of these ends George utilized the appearance of the
Building Trades' pickets on July 16 as a pretext for closing the
plant. We further find, as did the Trial Examiner, that it was the
respondent's purpose in closing the plant on July 16 to compel the
employees affected by the shut-down to accept membership in a
projected A. F. of L. federal labor union and to force the large
majority of its employees who had designated Local 356 as their
bargaining agent to renounce their affiliations with that organization.
We find that the respondent on July 16, 1937, locked out and dis-
charged 171 employees whose names are listed in Appendix A hereto,
and thereafter, by continuing to demand A. F. of L. membership
as a condition of reinstatement, refused them reinstatement, thereby
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminating in regard to- their hire and tenure of- employment in
order to discourage membership in Local 356, and to encourage,mem-
bership in an A. F. of L. labor organization which subsequently
became Local 21074.34 The respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.35
In addition to' the 171 employees whose names appear in Appendix
A, the complaint. alleged that the respondent discriminated in regard
to the hire and tenure of employment of 7 additional employees,
Berger, Hames, Hayes, Malone, Mendoza, Koup and M. Gonzales. It
appears from the record, however, -that these employees, with the
exception of Malone and Gonzales, continued to work without inter-
ruption during-the shut-down period and after October 1, 1937, when
the plant resumed full operations. With respect to Malone, officials
of the respondent testified that this employee continued to work
from July 16' until sometime in August, when his employment was
allegedly terminated for failure to report for duty. No rebuttal to
this assertion appears in the record, nor is it shown that Malone's
failure,to report for work was the result of sympathetic action in
connection with the strike called by Local 356. The allegations of
the complaint that the respondent- discriminated on July 16, 1937,
with respect to the hire and tenure of employment of Berger, Haines,
Hayes, Malone, Mendoza, and Koup will be dismissed:SB
. The respondent urges that the remaining employee listed in the
complaint, Manuel Gonzales, was "discharged for cause", on July,16,
and, that his case thus requires special consideration apart from the
other employees whose work -ceased because of the shut-down. Ac-
cording to' the testimony of Stenger,' Gonzales' foreman, Gonzales
was,, first employed by the respondent in the early summer of 1936.
On November 30, 1936, Gonzales was discharged by Stenger, according
to the litter's testimony, because he had been "fooling around" and
"The respondent urges that certain of the employees listed in the complaint are not
definitely shown to have been members of Local -350 on July 16, and apparently contends
that as to these employees it practiced no discrimination . We find, however , that the
respondent discriminated against all employees whose tenure was affected by the-lock-out.-
The respondent's discrimination consisted , not in selecting members of Local 356 for
dismissal , but in locking out all its employees , with the exception of a few maintenance
and clerical workers, because a substantial number of them had joined Local 356.
35 The respondent has claimed , inconsistently with its allegations concerning the
seasonal nature of the July 16 lock -out, that its actions were forced upon it as the innocent
victim of a jurisdictional dispute between labor organizations As the respondent not
only helped to institute but insisted upon the establishment of Local 21074, the respondent
Is in no position to make this claim.
36 Berger , Hayes and Malone were pumpmen and were excluded from the general
lay-off by George 's order to close the plant "except the pumps ." Barnett testified that
he "interpreted" George ' s order as not requiring the lay-off of Eames , assistant chief
clerk Mendoza, a "bath-man" was also, as above found, exempt from the general lay-off.,
Koup's employment history subsequent to the shut -down is set forth above , see footnote
21, supra '
COWELL PORTLAND CEMENT COMPANY 679
doing unsatisfactory work. At the reopening of the plaht-on-May 1,
1937 , Gonzales was rehired . Sometime in June 1937 , Superintendent
Barnett instructed Stenger, according to the testimony of both- of-
ficials, to - discharge Gonzales when the operating season came to an
eiid. - These instructions were issued , according to Barnett , - for the
reason that he had observed that Gonzales after his rehiring had'
lapsed into his former unsatisfactory conduct. Stenger testified
that upon receiving the order to close his ' department on July 16,
he gave Gonzales a discharge slip and told Gonzales ' that he was
"through" in accordance with the instructions issued by Barnett.
Gonzales , according to Stenger , said "0 . K.," but nothing more.
Gonzales was not called - as a witness at the hearing and there was
no denial concerning his former work record or the fact that it was
intimated to him on July 16 that he would not be reemployed. Under
such circumstances we credit the respondent 's testimony that it had
been decided to discharge Gonzales at the time of the next seasonal
shut-down because of unsatisfactory work. Nevertheless , as we have
found, the shut-down of July 16 was a discriminatory lock-out,
designed to avoid the necessity of bargaining with Local 356 and
to compel its members to renounce their affiliations with that organ-
ization . It is clear that, but for the order issued on July 16 to
effectuate this discriminatory purpose, Gonzales' tenure would have
continued at least until the next seasonal shut -down. We are there-
fore of the belief that Gonzales ' tenure of employment was illegally
terminated on July 16 as a concomitant part of the - respondent's
preconceived plan to rid itself of Local 356 and to force acceptance
of an A. F. of L . organization . We find that the respondent, on
July 16, 1937 , discriminated in regard to the hire and tenure of em-
ployment of Manuel Gonzales , thereby discouraging membership in
Local 356 and encouraging membership in a, projected A. F. of L.
union , and thereby interfered - with, - restrained , and coerced its em-
ployees in the exercise of the rights guaranteed ,in Section 7 of the
Act.37
3. Refusal to bargain collectively with Local 356
a. The appropriate unit
The third amended complaint, as amended, alleges that "all the
employees of respondent at or about the Cowell Plant, with the excep-
tion of executives, supervisory employees of the rank of foreman and
above, and persons having the right to hire and discharge, hospital em-
' We shall , however, distinguish the case of Gonzales from that of other employees
discriminated against on July 16, insofar as the remedy is concerned . See Section V,
infra.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, watchmen and guards" constitute a unit appropriate for the
purposes of collective bargaining. The respondent and Local 86; in
their amended answers, admit that the above-described, unit' was, ap-
propriate from July 1937 until May 1, 1938. The parties ' also stip-
ulated that the Rancho de los Cowell employees should be excluded
from the unit. The respondent and Local 86, however, contend that
shovel, operators and shovel oilers, and truck drivers and tractor
operators, have not been included in the foregoing unit since May 1,
1938, -and July 22, 1938, respectively.
. The evidence shows that on or about May 1, 1938, Jack La Force ' 38
a representative of Steam Shovel and Dredgemen's Union, Local
No. 45;31 affiliated with International Union of Operating Engineers,
herein called the Engineers, informed Superintendent Barnett that the
Engineers represented the shovel operators and apprentices employed,
by the respondent. The business representative of Local.21074; which
then had a closed-shop contract with the respondent covering all em-
ployees except supervisory employees, and which contract is here-
inafter found to have been illegal and void, corroborated La Force's
claim. The respondent orally agreed to abide by the Engineers' wage
scale for shovel operators and apprentices for the 1938 operating
season. During the operating seasons since 1938, the respondent has
continued, to observe the Engineers' scale of wages. Barnett testi-
fied that in his understanding all the shovel operators and apprentices
(oilers)} employed in 1939 and at the tinge of the hearing were mem-
bers of the Engineers .4' No evidence to the contrary-was introduced.
At the, beginning of the operating season in May 1938, the respond-
ent began- to substitute a system of truck haulage from the quarry
to the plant in place of the existing train system.41 This reorganiza-
tion, was completed by July 22, 1938. Between May and,••July- 22
representatives of 'Local 21074 and of General Truck Drivers and
Helpers of Contra Costa County, Local 3.15, herein called the Team-
sters, discussed with Superintendent Barnett the representation of
truck drivers and tractor operators. The Teamsters claimed jurisdic-
tion over these employees, and Local 21074 acquiesced in that claim.
On July 22, 1938, Barnett orally agreed to observe the Teamsters'
wage scale with respect to such employees. This oral agreement was
renewed for the 1939 operating season. In April 1940 the respondent
entered into a written contract with the Teamsters, covering the hours,
a"s La Force had died prior to the hearing
Now known as international Union of Operating Engineers Local No 3
4O It appears that of the employees employed in these capacities at the time of the
lock-out on July 16, 1937, only one, Piscovich, has since been employed by the respond-
ent. Piscovich was a member of Local 356, as were.the other shovel operators and oilers,
at that time None of the present employees in these classifications testified.
"A number of the persons then employed under existing train system were thereafter
transferred to other operations in or about the plant
COWELL PORTLAND CEAIENT COMPANY 681
wages, and working conditions of truck drivers and tractor operators,
who were members of the Teamsters, which contract was operative
at the time of the hearing.42
Neither the Engineers nor the Teamsters are parties to this pro-
ceeding and no representative of either organization testified at the
hearing. The Trial Examiner found in his Intermediate Report that
the inclusive unit conceded to have been appropriate for collective bar-
gaining purposes in 1937 could no longer be deemed appropriate in
view of the foregoing facts showing recognition of the Engineers and
teamsters by the respondent, and a history of collective bargaining
with them. He found in accordance with the claims of the respondent
and Local 86 that the former unit should now be limited by the ex-
clusion of those employees who are presently "represented ,by and/or
covered by collective agreements with the Engineers and Teamsters."
No exceptions were filed to these findings.
We find that all employees of the respondent at or about the
respondent's plant at Cowell, California, excluding executives, super-
visory employees of the rank of foremen and above, persons having
the right to hire and discharge, hospital employees, watchmen, guards,
and those employed at Rancho de los Cowell, constituted at all times
material herein until May 1, 1938, a unit appropriate for the purposes
of collective bargaining; that such unit, with the exclusion therefrom
of shovel operators and oilers, constituted an appropriate unit for the
purposes of collective bargaining until July 22, 1938; and that such
unit, with the additional exclusion therefrom of truck drivers and
tractor operators, has constituted at all times since July 22, 1938, and
now constitutes, a unit appropriate for the purposes of collective
bargaining with respect to wages, rates of pay, hours of employment,
and other conditions of employment, and that said unit, namely, all
employees of respondent at or about respondent's Cowell plant ex-
cluding executives, supervisory employees of the rank of foremen
and above, persons having the right to hire and discharge, hospital
employees, watchmen, guards, those employed at Rancho de los Cowell,
shovel operators and shovel oilers or apprentices, truck drivers and
.tractor operators, insures to employees of the respondent the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
b. Representation by Local 356 of a majority in the appropriate units
Upon testimony and exhibits submitted at the hearing, the Trial
Examiner found in his Intermediate Report that on July 16, 1937,
the date of the alleged initial refusal to bargain, Local 356 represented
*" None of the employees locked out on July 16. 1937, has since been employed by the
respondent as a truck driver or tractor operator.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantial majority of the 196 employees of the respondent in thb
unit above found to have been appropriate for collective bargaining
purposes at that time . The respondent and Local 86 have excepted
to this finding, contending in substance that the proof of majority
contains such "evidentiary vices" as to render the question of Local
356's representation on July 16, 1937, impossible of deterlnination.43
Proof of membership in and designation of Local 356 as bargain.
ing representative included applications for, membership in Local
356, testimony by its organizers , and certain of. its official records,
including the Local 's roll book , ledger entries , and duplicate receipts,
the originals of which were issued by officials to members upon
the payment of initiation fees and dues . These various types of
evidence in many instances are mutually corroborative of the fact that
certain of the respondent 's employees had authorized Local 356 to be
their bargaining agent on or before July 16.
At the. commencement of the organizational drive of Local 356 and
until after July 16, 1937, application forms for membership in the
International Union of Mine , Mill & Smelter Workers of America,
C. I. 0.,44 parent affiliate of Local 356, were lacking in sufficient num-
ber to supply the requirements of persons engaged in organizing Local
356. C. L. Cassidy , at that time an organizer for the International,
accordingly supplied application forms bearing the name of an
A. F. of L . organization known as Federal Labor Union No. 20218
of which Cassidy was at that time a business agent. The Federal's
name was deleted from these forms and they were changed to desig-
nate a C. I. 0. union prior to obtaining signatures of membership
applicants . The respondent contends that Local 356 was not the des-
ignated representative of the individuals signing such cards. The
record is clear, however , that prior to July 16 there was no union
other than Local 356 engaged in soliciting, members among the re-
spondent 's employees . Not only did each of these cards indicate by
the deletions and insertions thereon that designation was being made
of a C. I. 0. organization but, with respect to certain of the cards
below referred to in establishing the majority of Local 356, there
was testimony by organizers for Local 356 that the persons who
signed such cards in their presence were apprised of the fact or in-
dicated prior knowledge that by signing the cards they were making
application for membership in the International Union, Mine, Mill
& Smelter Workers of America and Local 356.45
sa Other exceptions made both by the respondent and Local 86 which are similar in
substance will be noted herein simply as the respondent's exceptions.
"4 The International had at that time but recently changed its affiliation from the
American Federation of Labor to the Committee for Industrial Organization
46 Even though the majority status of Local 356 was strongly contested, no evidence
was adduced attempting to show that any of the persons signing such cards had done
so under any misapprehension as to what organization they were joining
COWELL PORTLAND CEMENT COMPANY 683
Mogus, the secretary of Local 356, testified and we find that at
the time of the hearing certain of the original records of Local 356,
some bearing 'information concerning the exact dates upon which
employees made application for membership and others showing ini-
tiation dates, had, been lost. Among the second category were sheets
of paper signed at various meetings of Local 356 by persons who were
initiated at the respective meetings. From these sheets, entries were
made in the union roll book. The first 68 such entries were made by
Cassidy, who had charge of the records of Local 356 in its formative
period in late May and June 1937. The roll book and other records
were transferred by Cassidy to Mogus, the acting secretary of Local
356, not later than ,July 1, 1937.96 Both Cassidy and Mogus testified-
that the roll book when transferred had entered in it the names of
.68 persons. Cassidy testified that the procedure followed in making
-these' entries was that above described. Of these 68 names, 59 are
identifiable as those of employees of the respondent on July 16, 1937,
who were in the appropriate unit on that date. There was no evi-
dence introduced purporting to show that any of the 59 employees
listed among the first 68 entries in the roll book had not become
members of the Local prior to July 1, 1937, nor was any showing
attempted that any of these employees-had withdrawn from member-
ship in Local 356 on or prior to July 16, after having become members
thereof. Under the circumstances, we find that 59 employees, those
whose names are. listed among the first 68 entries in the roll book, had
become prior to July 1, and were on Jul.), 16, members of Local 356.
Upon receipt of the roll book from Cassidy, Mogus continued to
transcribe names of initiated members into the roll book, a task
which Cassidy had not completed at the time when the records were
transferred Within the first three or four nights after receipt of
the records, that is, by July 5, 1937, at the latest, Mogus testified that
he had entered the names of persons appearing from 69 to 153, in-
clusive, in the roll book, and that in so doing he had followed the
procedure of copying the names from the sheets signed by the persons
at the time of their initiation at prior meetings in June. Among
these 85 names, 70 are identifiable as those of employees of the re-
spondent in the appropriate unit on July 16. In the absence of any
evidence to the contrary, and without any showing that any of these
employees had withdrawn from membership in Local 356 subsequent
to initiation but prior to July 16, we find that in. addition to the 59
employees above referred to, 70 other employees in the appropriate
.unit, those whose names are listed in the roll book among the entries
°The records had,been kept by Cassidy until about July 1 for the ieaaon that Mogus had,
not been bonded
684 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
from 69 to 153, inclusive, had become members of Local 356 prior to
July 5, 1937, and were members thereof on July 16.47 As there
was a total of 196 employees in the appropriate unit on July 16,
the findings above alone establish to our satisfaction the majority
status of Local 356 on the date of the'alleged refusal to bargain.
Mogus continued to enter the names of initiated members of-Local
356 in the roll book following the completion of the 153 entries
above discussed. He testified, however, that he was unable to recall
the extent to which further entries had been completed in the roll
book prior to or on July 16.48 Although Mogus further indicated his
belief that persons whose names are listed in the roll book from
number 154 to 172 were also -initiated prior to July 16, we are not
entirely' satisfied that the facts upon which such recollection was
based are sufficiently established .49 Other evidence was presented,
however from which we can determine that employees of the re-
spondent other than the 129 whops we have found to have been
47 Some confusion arose concerning the initiation date of Hanson an employee whose
name is transcribed in the roll book opposite the number 110 Although Mogus at first
indicated that Hanson was not initiated until after July 16, he later stated that his
prior testimony was incorrect , that it was his iecollecion that Hanson had been initiated
in June, and that his confusion arose from' the fact that Hanson had obtained a
position in Oakland after July 16, and that "in order for us [Local 356 ] to permit him to
go to work we had to fix up his international transfer to show him as being initiated
after July 16" in order to "permit him to leave a striking Local to receive a Job
somewhere else ' It is clear from the very fact that such steps were necessary that
Hanson had been initiated prior to July 17, 19 37, when Local 356, as hereinabove
described , called a strike in protest against the respondent 's unfair labor practices
Under these circumstances we find, in view of Mogus' testimony, that the names of 153
persons had been transcribed into the roll book prior to July 5 from the lost initiation
sheets, and that Hanson , an employee of the respondent and number 110 in the roll
book , was initiated prior to July 5 and was on July 16 a member of Local 356 This
finding is buttressed by an examination of the evidence concerning the duplicate receipts
of Local 35(i below discussed A receipt was issued to Hanson in the amount of
$4 25 on June 11, 1937, covering , payment of an initiation fee of $3 00 and 1 month's
dues at $1 25
48 The respondent claims that in making this statement Mogus discredited later
testimony wherein lie attempted to ieconnt the exact dates of the initiations of each
of the members of Local 356 from the respective positions of their names in the roll
book From a detailed examination of the record we are not entirely satisfied that
Mogus' dependence upon the positions of the names in the roll book to determine the
dates of initiation of, such persons was warranted It is clear, however, that the
testimony summarized in the text-"that it would be pretty hard for me to tell you
just 'wheie we stopped on the numbers as of July 161'-refers simply to the physical task
,of making entries in the roll book and does not seive to impeach his attempt to recall
the exact dates of initiation by reference to the"roll book
49The method of determination was based upon Mogus' recollection that persons whose
names appear opposite the numbers 173 174, and 175 were initiated on July 16 He
stated his belief that in making entices after the number 153 in the roll book lie had
kept the lost initiation records in order of priority Thus if numbers 173, 174, and
175 had been initiated on July 16, a fortiori all persons whose numbers appear below
173 were initiated before July 16
At another point in the record , however , Mogus stated that he could not be sure
that the records hall been placed in chronological order before transposing the names
into the roll book There is also some conflict concerning the alleged fact that numbers
173 and 175 were initiated on July 16, although D P Reynolds, whose name appears
opposite number 174 in the roll book , testified at the hearing and we'find that he had
been initiated into Local 336 on the evening of July 16
COWELL PORTLAND CEMENT COMPANY 685'
initiated prior to July 16 had designated Local 356 as their bargain-
ing agent prior to this date. As before stated, receipts were issued
to each person upon payment to union officials of initiation fees or
dues. The receipts were dated and showed the amount received
by Local 356. Duplicates of these receipts were kept by Local 356
as records of the transactions. Certain of the duplicates were intro-
duced in evidence at the hearing, and compilations of data appearing
on other such duplicate receipts were made exhibits at the hearing.
It was testified by the persons issuing such receipts that they had
received the sums of money from the persons to whom the receipts
were made out on the dates appearing thereon.50 The evidence
shows receipts to have been issued to 134 employees prior to July
16, 1937, who were in the appropriate unit on July 16. We infer and
find that each of the persons making such payments was desirous of
representation by Local 356 and had authorized Local 356 to be his
collective bargaining agent prior to July 16 51 Since there were 196
employees in the appropriate unit on July 16, the receipts alone show
that Local 356 represented on that date a majority of the employees
therein. Twelve of such receipts were issued to employees whose
'])mires M 'e not found among the first 153 entries in the roll book.
Having found that all 153 such persons had been initiated into
Local 356 prior to July 16, and having found that 129 such persons
were employees of the respondent in the appropriate unit on July
16, we further find on the basis of the receipts that 12 additional
employees had authorized Local 356 to be their bargaining agent
prior to July 16.''
Other employees in the appropriate unit also designated Local 356
prior ti July 16. There are in evidence 15 application cards 63 of
employees not above found to have designated Local 356 as bargain-
ing' agent. The sighing of these cards was witnessed by either
Tooley, Mogus, or Nelson, solicitors for Local 356, on the dates, all
prior to July 16, 1937, appearing on the cards. Cards now in evi-
dence as exhibits were given to two additional employees ]ate in May
by the organizers and returned to them with the signatures of the
301n one instance Mogus testified upon direct examination that the date appearing
on a duplicate receipt issued by ^him may have been an error as it was his recollection
that payment had been made upon a date later than that appearing on the receipt
but se%eral weeks prior to July 16
"We further infer and find that the persons making such payments gave to the
officials of Local 356 their coirect names and were in fact the persons to whom the
receipts eeie made out
"It may be noted that with but one possible exception the names of these 12
employees are found entered in the roll book between the numbers 154 to 175, inclusive
The exception 14 an employee named Don Stine who made payment to Mogus on June
11, 1937 Opposite the number 162 in the roll book is entered the name John Stine
It is possible and even probable that an erioi was made in transcribing Stine's given
name into the roll book from ' his initiation record
13 Thirteen are exhibits , two others are included in a tabulation of the full membership
claims of Local 356
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respective employees affixed not more than 3 days after the dates
which the cards bear . No challenge was made of the authenticity
of the signatures on any of these cards. We find that Local 356 was
the collective bargaining representative of each of these 17 employees
on July 16, 1937. There is additional evidence in the record to sup-
port a finding that Local 356 was the representative of additional
employees of the respondent on July 16.54 We think it sufficient to
find, however, and we do find upon the basis of the record that Local
356 represented a large majority, at least 160 out of 196, of the em-
ployees in the appropriate unit on July 16, 1937.' The respondent's
contention that there is inadequate proof of a majority on that date
is without merit.55
64 As examples : G L. Chilton , whose name appears in the roll book opposite the number
169, was the first elected president of Local 356 and was a member of the committee
which conducted bargaining negotiations with the respondent prior to July 16. J. Arriaga
was a member of another local of the International Union of Mine , Mill & Smelter
Workers of America prior to the inception of Local 356 It is tnidenied that prior to
July 12, 1937, Arriaga informed Mogus that he wished to effect a transfer to Local 356,'
and that on July 12 Mogus sent to Arriaga ' s former local a standard transfer form We
find that Local 356 was the collective bargaining representative of Chilton and Arriaga
on July 16
The findings heretofore made in this subsection of the, decision have been directed to
the question of whether or not Local 356 represented a majority in the appropriate unit
on July 16. We have found that a minimum of 160 employees , all of whom are named
in the complaint herein, had designated Local 356 as bargaining representative before
that date. In addition to such employees the complaint carries the names of 18 other
employees. As regards 2 of these remaining employees it is definitely shown in the
iecoid that they had not authorized Local 356 to be their bargaining representative by
July 16, 1937 , but that they became members of , or applied for membership in, Local 356
within a few days after that date Concerning the remaining 16 employees , there is in
evidence a compilation of application cards held by Local 356 , which demonstrates that
with but few exceptions these 16 employees had signed such cards . The respondent has
contended that since a large number 'of the application cards produced at the hearing
were signed subsequent to July 16 in order , accoiding to the testimony of Mogus, to
replace original application cards which were lost, the dates on such cards are meaning-
less , because many of them are only estimates of when the originals were signed In
view of this contention we have considered other evidence in determining the majority
as of July 16 Nevertheless , the respondent did not challenge the authenticity of the
signatures to the duplicate application cards, although they were open to inspection by
the respondent at the hearing , and we are of the opinion , that such cards constitute proba-
tive evidence of the fact that the signers thereof were desirous of membership in, and
representation by, Local 356 on or about July 16 , 1937. In all , we conclude , there are
but 2 employees listed in the complaint herein who ale not shown to have designated
Local 356 as their bargaining representative at any time . One such employee , F. Snavely,
testified that he had never designated Local 356 as his representative although an appli-
cation card purporting to bear his signature was produced at the hearing ( Snavely was
not questioned concerning the authenticity of this card ) The remaining employee, M.
Marshall , is not shown by the record to have expressed a desire to be so represented
w The respondent offered no affirmative proof that any of the employees above discussed
had not in fact designated Local 356 to be their bargaining representative prior to July
16, 1937 . We think it pertinent to note, moreover , that the respondent , prior to July
16, 1937, met with and purported to bargain collectively with Local 356 as the exclusive
bargaining representative of its employees and orally recognized Local 356 ns such repre-
sentative Compare, e . g Stewart Die Casting Corporation v. N. L. R. B, 114 F. (2d)
849 (C C. A 7), enf'g as mod Matter of Stewart Die Casting Corporation and United
Automobile Workers of America , Local 298, 14 N L R. B 872 Indeed , as herein' dis-
cussed , we are of the belief that .the respondent was convinced on July 16 that, -contrary
to its wishes , a large majority of its employees had established Local 356 as their union,
and that for this very reason the respondent on 'July 16 locked out all its employees with
the exception of a few clerical and maintenance workers
COWELL PORTLAND CEMENT COMPANY 687
The respondent contends that Local 356 was not the majority
representative after July 16 for the reason that the shut-down of that
date terminated the employee status of persons then laid off. We
have found that the shut-down of July 16 was in fact a discriminatory
lock-out. Consequently the employees affected by the shut-down con-
tinued to be employees of the respondent by virtue of Section 2 (3)
of the Act which, in part,,defines an employee as one whose work has
ceased "because of any unfair labor practice."
Moreover, even were we to assume the absence of a discriminatory
motive on July 16, the respondent's contention that the employment
status of persons working prior to July 16 was terminated by the
shut-down would not be well taken. The respondent's business, as
before stated, had been subject to semi-annual seasonal shut-downs
prior to July 1937. According to the testimony of Plant Manager
George, as substantiated in other parts of the record, "when a period
came for the shut-down the plant superintendent and his clerk were
supposed to get their addresses [of employees laid off] as far as
possible, those who had permanent addresses," so that the respondent,
in accordance with its "general custom," might notify the laid-off
employees of the resumption of operations. When questioned as to
whether employees were discharged at the time of a seasonal shut-
down George replied, "I think the correct word would be laid off." 6"
On July 16, there was but one employee, Manuel Gonzales, whose work
was terminated in terms importing a discharge, when he was told,
by his foreman, pursuant to directions from Superintendent Barnett,
that he was "through." Upon these and other facts set forth in the
record, we are, therefore, of the opinion that acceptance of the re-
spondent's contentions concerning the shut-down of July 16 would
not alter the fact that the employees laid off on that date retained,
as seasonal employees, their employee status for the purposes of the
Act.68 -
At the hearing Local 86 and the respondent sought to show that
numerous employees who had designated Local 356 prior to or on
July 16 had since repudiated such designations. We are satisfied,
however, and find that defections or withdrawals from membership
in Local '356, and repudiations of membership applications, to the
extent that they occurred after July 16, resulted from, and are at-
tributable to, the unfair labor practices of the respondent, herein dis-
cussed, in refusing to bargain with Local 356, in discriminating in
" Cf. National Labor Relations Board v. Somerset Shoe Co., 111 F. ( 2d) 681, 686
(C C. A 1)
" Cf Naticnal Labor Relations Board V. Waterman Steamship Corp., 309 U . S. 206;
North Whstti-, Heights Citrus Association v.. National Labor Relations Board, 109 F. (2d)
76, (C. C. A. 9), cert. den . 310 U. S. 632 ; Nashville C. if St. L. By. v. Railway Employees'
Department of American Federation of Labor, et al, 97 F. (2d) 340, cert . den. 303 U. S.
649.
688 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
regard to the tenure of employment of members of Local 356, in
illegally 'requiring as a condition precedent to further employment
membership in another labor organization, and in otherwise interfer-
ing with, restraining, and coercing its employees in the exercise of the
rights guaranteed by the Act. These unfair labor practices cannot
operate to change the bargaining representative previously selected by
the untrammeled will of the majority."
The exclusion at times subsequent to July 16, 1937, of shovel opera-
tots and oilers and of truck drivers and tractor operators from the
apprdpriate unit does not affect the majority status of Local 356
in the appropriate unit at any time since their respective exclusions.
Assuming that all shovel operators and oilers were members of, or
had designated Local 356 as their agent on July 16, the number of
employees in such categories was extremely small, and the subtrac-
tion of their number from the total membership of Local 356, together
with the necessary subtraction of their number from the total of all
employees in the unit, could not conceivably affect the majority status
of Local 356 among the remaining employees. A similar conclusion
is made concerning the tractor operators and truck drivers.60
We find that on July 16, 1937, and at all times thereafter, Local
356 was the duly designated representative of a majority of the
employees of the respondent in the appropriate unit as constituted
at all material times herein, and as constituted' at the present .tune,
and that, by virtue of Section 9 (a) of the Act, Local 356 was the
exclusive representative of all the employees in the appropriate unit
as heretofore constituted and is the exclusive representative 'of the
appropriate unit as now constituted, for the purposes of collective
bargaining.
c. The refusal to bargain
The complaint alleges and the answer denies that the respondent
on and after July 16, 1937, refused to bargain collectively with Local
356 as the exclusive representative of its employees in the appropriate
unit.
"National Labor Relations Board v P Lorillard Company , 61 S. Ct. 397 ; National
Labor Relations Board v Bradford Dyeing Ass 'n, 310 U S 918 ; Inteinational Association
of Ma'chi'nists v National Labor Relations Board, 311 U. S. 72; Busman Mfg Co v
National Labor Relations Board 111 F (2d) 783, 788 (C C . A 8) , Continental Oil Co V
National Labor Relations Board, 113 F. (2d) 473, 481 (C. C A 10), remanded on another
issue, 61 S Ct 861 ; National Labor Relations Board V Highland Park Mfg Co, 110 F.
(2d) 632, 640 (C. C A. 4) ; Valley Mould eC Iron Corp v Natwnnal Labor Relations Board.
116 F. ( 2d) 760 ( C. C A 7 ) , Oughton , et at v National Labor Relations Board, 118 F
(2d) 494 ( C C A 3 ) ; National Labor Relations Board v New Era Die Co, Inc, 118 F
( 2d) 500 (C C A. 3) , Solvay Process Co v National Labor Relations Board, 117 F.
(2d) 83 (C. C A. 5), cent. deb 61 S Ct. 1121.
00 Truck diivers , as above noted , constituted for the most part a new category of employees
when hired in 19 '38 There were not in 1937 more than 10 of 15 eniplo^ees in all cafe-
gom ies excluded from the appropriate unit at times since 1937 1
COWELL PORTLAND C'EMEN'T COMPANY 689
The respondent contends that Local 356 never requested that it
bargain collectively after the shut-down of July 16. The facts here-
inabove set forth demonstrate that this contention is without merit.
Prior to July 16, as above stated, Local 356 had submitted it collective
bargaining proposal to the respondent; Local 356 and the ' respondent
had met and negotiated thereon; and the respondent had promised as.
the next step in such negotiations to submit a counterproposal with
respect to conditions of employment. On July 16, Barnett informed
' Mogus that the counterproposal tentatively promised by the respond-
ent on that date would not be then available. The respondent was
thus in default on July 16 and Barnett's statement to Mogus consti-
tuted it clear recognition of the respondent's continuing duty to go
forward with the negotiations which had already been requested by
Local 356, and which had been in progress prior to this date. As
we have before stated, Local 356 never received the promised counter-
proposal, and the record makes clear that at all times after July 16
the respondent, in derogation of the Act, was resolved not to recog-
nize or to bargain with Local 356, but instead insisted upon desig-
nation of an A. F. of L. affiliate as the prerequisite to recognition of
employee representatives.
The respondent states that the strike called by Local 356 on July 17'
and the establishment on and after July 18 of a picket line outside
the respondent's plant property was "unjustified," and it apparently
contends that the strike excused it from its duty to bargain further.
The existence of a labor dispute cannot, of course, confer upon the
employer an immunity from the performance of its statutory obliga-
tion to bargain collectively in good faith because in the employer's
opinion the dispute is "unjustified." We think it clear from the
record that the respondent's failure to negotiate further with Local
356 was not predicated upon any belief that the strike was a rejection
of the collective bargaining process. Indeed, the strike was in
part caused by the respondent's refusal to proceed with collective
bargaining.-
On August 16, as we have above found, the sheriff of Contra Costa
Coixnty, in an endeavor to settle . the-strike called by - Local 356,
brought together in meeting representatives of both Local 356 and the
respondent. The sheriff opened the meeting by stating that he
wished to see the strike settled. Both parties stated that they too
"would like to see the matter settled. " As before stated, Thelen,
representing 'the respondent at the meeting, then told the represent-
atives of Local 356 "that if you fellows go in the A. F. of L. we can
m George testified that he heard within a few days after the July 16 shut-down that
Local 356 had struck because of the respondent 's failure to submit its counterproposals
for a contract
455771=42-vol '40-44
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open up the plant and start working," but that if the employees
refused to do so the respondent, "could not work with a C. I. O.
crew." The position stated by Thelen must, in ,view of the respond-
ent's actions on and after July 16, be related back to that date. It
makes clear, we believe, the actual reason for the respondent's failure
to submit its counterproposal on working conditions on and after
July 16 and to proceed with bargaining.
The events of this conference, furthermore, demonstrate in them-
selves a refusal to bargain collectively within the meaning of the Act.
It will be noted that both Local 356 and the respondent had' agreed
-prior to Thelen's statement that they "wished to see the matter
settled." In view of this tacit agreement that negotiations would be
attempted at the meeting, the respondent's contention that "this inci-
dent affords no support for a finding of a refusal to bargain" because
"no one requested respondent to negotiate or bargain collectively,"
has no validity. The understanding that negotiations would be un-
dertaken rendered superfluous a pro forma request by Local 356 that
the respondent bargain collectively. The position expressed by
Thelen subsequent to arriving at this understanding, however, consti-
tuted an utter negation of the collective bargaining process, requiring
as it did the dissolution of the authorized bargaining agency.
On August 26, 1937, the respondent, as found above, executed a
closed-shop contract with Local No. 21074, an A. F. of L. affiliate.
Such action, of course, precluded Local 356 from obtaining the recog-
nition due it as the exclusive representative of the respondent's
employees and constituted a further and definitive refusal to bargain
collectively.62 N
We find that the respondent on July 16, 1937, and at all times
thereafter, has refused to bargain collectively with Local 356 as the
exclusive representative of its employees in the appropriate unit in
respect to rates of pay, wages, hours of work, and other conditions of
employment, and that the respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
4. The closed-shop contract with Local No. 21074
The imposition of membership in any labor organization as a
condition of employment falls substantively within the proscription
of Section 8 (1) and (3) of the, Act unless the imposition and en-
forcement of the condition is immune under the proviso clause of
Section 8 (3) that nothing in the Act "shall preclude an employer
from making an agreement with a labor organization (not estab-
62 See National Labor Relations Board V Jones d Laughlin Steel Corp ., 801 U . S. 1, 44-45
COWELL PORTLAND CEMENT COMTANY 691
lished, maintained, or assisted by any action defined in this Act as
an unfair labor practice) to require 'as a condition of employment
membership therein, if such labor-organization is the representative
of the employees as provided in Section 9 (a), in the appropriate
collective bargaining unit covered by such agreement when made."
By requiring membership in a projected A. F. of L. labor organi-
zation immediately following the shut-clown of July 16 the respond-
ent continued and perpetuated its discrimination in regard to the
hire and tenure of employment of the employees thrown out of work
on that day,; and, independently, established an illegal condition of
employment, for the reason that this action was taken unilaterally,
without benefit of agreement, and was imposed prior to the time that
an A. F. of L. organization came into existence at Cowell. We find
that the respondent, by the imposition of such condition and by its
other unfair labor practices hereinabove set forth, unlawfully estab=
lished, maintained, and assisted Local No. 21074. Furthermore we
have, found that Local 21074 was not on August 27, 1937, the date of
execution of the closed-shop contract with the respondent, the repre-
sentative of a majority of the respondent's employees in the appro-
priate unit above found '113 and we find that what membership it did
have was a coerced,membership, received as a direct result of the
respondent's unfair labor practices.
We find, as (lid the Trial Examiner, that by making the contract
of August 27, 1937, with Local 21074, a labor organization assisted
by, the respondent's unfair labor practices and one which was not
on that date the exclusive representative as provided in Section 9, (a)
of the Act, of the employees in the appropriate collective bargaining
-unit covered thereby, the respondent discouraged membership in
Local 356 and encouraged membership in Local 21074, and that by
so doing the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of
the Act.84 The contract of August 27, 1937, as supplemented by the
agreement 'of October 23, 1937, therefore was and is illegal and void.
5. Cause of the C. I. O. strike
We have found above that the respondent on and after July 16,
1937, discriminatorily locked out its employees, refused to bargain
collectively with Local 356, and engaged in other coercive conduct.
On July, 17, Local 356 declared a strike, and thereafter continued
such strike, in protest against the respondent's foregoing. unlawful
03 See Section 3, b, supra, wherein we found that Local 356 was such representative on
this date.
es National Labor Relations Board v Dieetrao Vacuum Cleaner, Company, 62 S., Ct. 846„
decided March 30, 1942
692 DECISIONS OF NATIONAL: LABOR -RELATIONS BOARD
conduct. We find, therefore, that the strike commencing July 1t,
1937, was caused and prolonged by unfair labor practices.
C. Local 86 and the contract dated April 10, 1940
In September 1939, Local 21074 sent two delegates to a convention
held in St. Louis, Missouri, at which time the United Cement, Lime &
Gypsum Workers, International Union was formed. In October
1939, Local 21074 voted to affiliate with-this International.- Union.
A meeting of Local 21074 was held as scheduled on October 19, 1939,
and the minutes thereof were kept in the name of United Cement,
Lime and Gypsum Workers, International Union Local No. 86. On
October 28 , 1939, the International Union issued a charter to Local 86.
Members of Local 21074 became members of Local 86 without
payment of any initiation fee to Local 86. Officers of Local 21074
continued to act until December 28, 1939, as officers of Local 86, and
during this period administered the affairs of Local 86, using all
the books, records, and property of Local 21074, including its bank
account, as the books , records , and property of Local 86. On Decem-
ber 28, 1939, Local 86 elected new officers for the year 1940.
On October 31, 1939, after issuance of the charter to Local 86,
the respondent was informed under the seal and letterhead of Local
21074 that "the Union " had voted to request modification of the -exist-
ing contracts with the respondent . The contract of August 27, as
supplemented by the agreement of October 23, 1937, was administered
by and in behalf of Local 86 and the respondent until April 10,
1940, when the respondent and Local 86 executed a new agreement
which provided, among other things, for membership in Local 86
as "a condition of all present and future employment ." This con-
tract also contained the following paragraph :
This agreement shall become effective as of the date hereof,
the rights , of the parties hereto shall , up to said date, be de-
termined and fixed by the agreement entered into by [the
respondent and Local 21074], which agreement -is dated -October
23rd, 1937. .
Under these circumstances and upon the entire record , we find,
as did the Trial Examiner , that Local 86 is in fact and law the suc-
cessor to Local 21074.
By reason of the successorship of Local 86 and by reason of the
respondent 's illegal acts of assistance to and maintenance of Local
21074, which acts inured to the benefit of Local 86 , and because any
majority representation which Local 86 might claim on April- 10,
1940, or at the present time resulted from the respondent's unfair
labor practices , the closed -shop contract 'executed bv - and%betneen the
COWELL PORTLAND CEMENT COMPANY 693
irespondent and,,Local 86 on April 10, 1940, was and is illegal and
void. We find that by the execution of such contract, the respondent
discouraged membership in Local 356 and encouraged membership
in Local 86 and thereby further 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
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and have led and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
A. Contention that the proceeding is moot
The respondent contends that by virtue of certain changes in its
operations effected on and after December 19, 1939, the Board has
been', divested .of. jurisdiction- to issue any order with respect to, the
respondent's unfair labor practices found above. We shall first set
forth the facts relevant in this connection, then state our concluding
findings.
1. Changes in the respondent's business
,On November 28, 1939, as above stated, the United States Circuit
,Court of Appeals for the Ninth Circuit remanded this case to the
.Board for such further action as it might deem proper. In its
decision the Court held, upon the basis of the respondent's admission
that at least 14,000 barrels of cement per annum were exported across
State lines," that the respondent's activities brought it within the
Board's jurisdiction.
On December 19, 1939, less than 1 month after the remand, the
board of directors of the Lime Company passed the following reso-
lution::
RESOLVED : That it is hereby declared by the Board of Directors
of Henry Cowell Lime and Cement Co., a California corporation,
that it will be the definite policy of said Company to confine its
sale of cement, on and after January 1, 1940, to points not
66 The decision of the Board found that the respondent's annual exports were ma-
terially ui excess of this figure . The Court accepted , arquendo , the respondent 's state-
ment, holding that the lesser figure still constituted a substantial flow of goods in
interstate commerce.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving the movement of cement, in any territory outside of
the State of California; and
1
11 .
BE IT FURTHER RESOLVED that all theioflieers^of said corporation
be and they are hereby directed to make such policy effective
by taking such action that , on and _ after January 1, 1940, no-
cement whatever will be sold by Henry Cowell Lime and Cement
Co. to any point involving the movement of cement outside of
the State of California.
Thirty minutes later, at the same place, the same person 's, acting'
as the board of directors of the respondent, passed the following
resolution :
RESOLVED : That, effective January 1, 1940, the purchase by or
for the account of this corporation, of all materials and supplies,
including repair and replacement parts, used by this corporation,
be made exclusively from California ' producers or suppliers or
from stocks in the State of California ; provided , however, that
in specific instances authority to make purchases from points out-
side the State of California may be given by the President or the
Vice-President of this corporation; and
BE IT FURTHER RESOLVED that the officers of this corporation be
and they are hereby instructed to take all' ,action necessary to
effectuate said policy.
On January 9, 1940, the respondent shipped 1,237 barrels of
cement from Cowell to San Francisco for transshipment to Pearl
Harbor, T. H., on a government order awarded the respondent on
November 29, 1939. With this exception no cement has been -shipped
by the respondent to places outside the State of California since
January 1940, nor have sales been made -to purchasers located outside
the State.86 After January 1, 1940, the respondent began purchasing
gypsum, formerly secured from Nevada sources, from California
producers, although this policy when first instituted caused the re-
spondent to pay $2.10 per ton higher freight charges than it had
56 The respondent took steps to notify , former purchasers who were located outside
California that its 'cement would no longer be available to them On December 21, 1939,
R B. Mitchell , sales and traffic manager of the Lime Company , wrote the Porter Lumber
Company. Medford . Oregon. in part as follows :
I desire to advise you that on December 19th , 1939 , the Board of Directors of the
Henry Cowell Lime and Cement Co passed a resolution .
Under the circumstances , after December 31, 1939 , we will be obliged to discontinue
shipments to your good Company
Our relations in the past have been very pleasant and I am sincerely sorry that they
cannot be continued .. .
Identical letters were sent to various other firm's.
In May 1940 , the Diamond Match Company , apparently unadvised of the respondent's
change in policy , placed an order for cement to be delivered to Oregon • but the order
was refused
COWELL PORTLAND CEMENT COMPANY , 695
formerly paid for the transportation of gypsum from Nevada. Gyp-
sum from both sources was identical in price at $2 per ton. The rates
on California gypsum have since been reduced, but the respondent
still pays a freight charge of 80 cents per ton higher than the rate
formerly effective from Nevada. The records of the B. P. & C. show
that in January and February 1940, the respondent received over its
tracks 313,384 pounds of freight from points outside the State of
California. , The records of the B. P. & C. disclose no interstate
shipments thereafter, and officials of the respondent testified that in
accordance with the resolution of the board of directors no orders
had been placed since January 1, 1940, for any products to be shipped
directly from out-of-State sources to Cowell.s'
Insteadl, according to the testimony of the assistant to the respond-
ent's purchasing agent,"' the respondent has required in all instances
where it has needed supplies manufactured outside the State of
California since the passage of the above-quoted resolution by the
respondent's board of directors, that a California concern which does
not have the desired article on hand, "--must get it in stock and then .
ship it from their local stock." as
The record further shows that the respondent has adopted, and
according to the, testimony of its officials, would in the future adopt
the policy of acquiring in substitution for articles formerly pur-
chased from manufacturers located outside the State of California
similar articles manufactured within the State whenever possible.
There was testimony by Barnett, the respondent' s general manager,
that such substitutes would be equally as good or better than the
s7 The shipments received in January and February 1940 from sources outside California
had apparently all been ordered in 1939.
Mi The purchasing agent and his assistant are employees ' of 'the Lime Company. The
respondent 's requirements are made known to them, in most instances , by Barnett
10 The Trial Examiner in his Intermediate Report found , and we concur , that the
respondent 's purchasing policy above outlined is exemplified by the following quotations
from a letter addressed on April 11, 1940 , to the Link Belt Company concerning the
purchase price of certain equipment needed in the efficiency operation of the respondent's
plant :
I believe that these have to be made in the east, as I do not think that you
make any flint run sprockets out here
If such is the case, they would have to be shipped from the east to you at San
Francisco and become part of your San Francisco stock, and then be reshipped
to us at Cowell, Calif., and the billing likewise would have to be done by your
San Francisco office
The reply , in part , was as follows :
It is understood that these sprockets are to be manufactured and shipped from
Chicago; however, they will be shipped to us at San Francisco and become pact
of our stock before reshipping to you at Cowell , California The billing also will
be done from San Francisco
We estimate that shipment can be made in approximately one week after receipt
of your order from the Chicago Plant , and should reach you in approximately three
weeks after receipt of the order.
The day following the reply, the respondent ordered the merchandise.
696 DECISIONS, OF - NATIONAL ' LABOR RELATIONS BOARD
articles previously acquired in interstate commerce. He admitted,
however, that in most instances the California-made articles had been
on the market and available to the respondent for the 5 years pre-
ceding 1940.
The record reveals that in practical application the respondent,
despite these policies, was unable,to eliminate transactions in inter-
state commerce during the period in 1940 covered by the record. In
the months of January and February 1940 the respondent received
at Cowell materials, equipment, and supplies ordered in 1939 to the
value of $16,378 by direct shipment from points without the State
of California. In 1940, until June 20, the respondent purchased
$3,889.83 worth of materials, equipment, and supplies which were
originally manufactured outside the State of California and were
filled from stock maintained by the sellers thereof within the State;
and $951.30 worth of material, equipment, and supplies manufactured
in States other than California, shipped from such points to the
seller in California to fill the respondent's order, and then by the
seller in California reshipped to Cowell. During this period, the
respondent purchased materials, equipment, and supplies valued at
$54,748.16, which were manufactured or produced in California.
Thus, approximately 28' percent of the materials, equipment, and
supplies received by the respondent at Cowell in the first half of
1940 originated outside the State of California.
2. Concluding findings
By virtue of Section 10 (a) and (c) of the Act, the Board is re-
quired to issue a cease and desist order and authorized to issue an
order to take appropriate affirmative action, upon finding that any
person "has engaged in or is engaging in" any unfair labor practice
affecting commerce. Section 2 (7) defines the term "affecting com-
merce" as "in commerce, or burdening or obstructing commerce or the
-free flow of commerce, or having led or tending to lead to a labor
dispute burdening or obstructing commerce or the free flow of coin-
merce." As we have found above in Section IV, the urifair labor
practices of the respondent set forth in Section III, occurring rin
connection with its business operations described in Section I, have
led and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce. We find, therefore, without
regard to any changes which the respondent may have effected in
its business in and after December 1939, that the Board has power
to issue an order to cease and desist and to take affirmative action,
because of the unfair labor practices in which the respondent- has
engaged.
COWELL PORTLAND CEMENT COMPANY 697
Moreover, the interstate shipments incident to the respondent's
business which occurred in 1940 show that the respondent's operations
sti11R have a close,, intimate, andd, substantial relation to, trade, traffic,
and-commerce among the several States; and therefore- that the Act
is applicable to it.
Furthermore, we find that the activities of the respondent described
in the previous subsection-the resolutions of December 19, 1939;
the change in' the source of the respondent's gypsum supply beginning
January 1, 1940; the policy since that date of ordering equipment, re-
pair parts and supplies from California sources whenever possible and
of requiring indirect transit of goods not found in California stock;
the limiting of sales of cement manufactured by the respondent to
purchasers within- the State of California-were adopted not in any
belief that the respondent's operations would be facilitated or made
more efficient or.profitable thereby, but ,primarily because the -respond-
ent had engaged in and was engaging in the previously described unfair
labor practices, and because the respondent was attempting to oust the
Board of power to vindicate the public policy of insuring to employees
the exercise of guaranteed statutory rights to the end that a prolific
cause ofindustrial strife, leading to burden's and obstructions upon
interstate commerce, be removed.-,O The respondent's desire to escape
remedial action to correct its unfair labor practices and its resultant
restriction of its interstate activity, by themselves demonstrate that
the unfair labor practices are obstructing the free flow of commerce.
Thus, not only has the respon'dent's change in operations in and after
December 1939 not divested the Board of jurisdiction to issue an order
against the respondent, but rather such change shows that the Board
has jurisdiction' and emphasizes the importance of the Board's exer-
cising;^ its.,Jurisdiction, -to effectuate-the,-policies of the Act.
,Finally, if we assume contrary to fiict that the respondent's pres-
ent operation's are not interstate in character, we may presume in view
of the respondent's business practices for the years prior to 1940, and
its reasons for the change in operations, especially when considered
in connection with the factors set forth in the last footnote, that such
7u The respondent makes some effort to show that the resolutions and ensuing practice
of confining sales to intrastate purchasers was occasioned, by a diminishing profit from
interstate sales, such sales in 1939 ieturning a profit of only 3 cents per barrel But
no reason is shown for the adoption of the rigid rule that no sales, irrespective of their
terms, should be made in interstate comynerce, and the contemporaneous adoption of
the other previously described policies makes inevitable the conclusion above reached
Indeed ; insofar as interstate sales are concerned , it is shown in the record that Barnett
pointed to the seasonal operations of the respondent during the abortive negotiations with
Local 356 prior to the 1937 shut-down as a factor in determining a wage scale, and
stated that the respondent operated under high fixed costs It was the respondent's
expressed desire then, and we-presume this desire obtained in 1940, that sales be increased
so that fixed costs might be relatively reduced and operations could be continued over
longer periods The inconsistency in rigidly confining the field of possible sales to Cali-
fornia purchasers is apparent
698 DECISIONS OF NATIONAL? LABOR RELATIONS BOARD
changes are of a- temporary nature and that the, respondent intends
to resume unrestricted interstate operations similar to-those in which:
it engaged prior to the remand of this case. At such time, the indus-
trial strife which has already resulted from the respondent's unfair,
labor practices, or which may in the future culminate therefrom, may
prevent in whole or in part the operation of the respondent's business.
It is clear, therefore, upon this ground alone, that the iespondent's'
unfair labor practices not only.have led, but will in the future tend
to lead to labor disputes burdening or obstructing commerce or the
free flow of commerce between the States and must be remedied in
order that the policies of the Act be effectuated.
Accordingly, we hereby reject as without merit the respondent's
contention' that the change-in operations which it effected in and after
December 1939 has divested the Board of jurisdiction to remedy the
unfair labor practices found above. We turn, therefore, to the provi-
sions of the order which we shall issue.
B. Provisions of the Order
Having found, that the respondent has engaged in unfair labor
practices we shall order it to cease and desist therefrom, and to take
certain affirmative action which we, deem necessary to effectuate the
policies of the Act.
We have found that the respondent aided, encouraged, and assisted
Local 21074 and Local 86 by various unfair labor practices. In order
to restore the status quo and to permit the employees full freedom
,in self-organization, without hindrance by reason of the respondent's
unfair labor practices, we shall order the respondent to withdraw rec-
ognition from Local 21704 and Local 86 as the exclusive representative
of the respondent's employees for the purposes of collective bargain-
ing, unless and until either of these organizations shall have been
certified as such by the Board.
In addition we have found that the closed-shop contracts of Au-
gust 27, 1937, as supplemented by the agreement of October 23, 1937,
and of April 10, 1940, were made with labor organizations which have
been assisted by the respondent's unfair labor practices, and which
were not the representative of the majority of the respondent's em-
ployees in the appropriate bargaining units covered by such contracts
when made. We shall order the respondent to cease and desist from
giving effect to these contracts as well as to any extension, renewal,
modification, or supplement thereof, or any superseding contract which
may now be in force. Nothing in this Decision and Order should be
taken to require the respondent to vary those wage, hour, and other
such substantive features of its relations with the employees them-
selves which the respondent may have established in the performance
COWELL' PORTLAND: CEMENT COMPANY 699,`
of the invalid contracts as extended, renewed, modified, supplemented,
or superseded.
We have found that Local 356 on July 16, 1937, and at all times
thereafter was, and that it is, the exclusive representative of the
employees in the appropriate unit as constituted at all times herein.
Having further-found^'that the respondent has refused to bargain
collectively with Local 356 as such representative we shall order the
respondent upon request to bargain collectively with Local 356.
We have further found that the respondent on July 16, 1937, dis-
criminated in regard to the hire and tenure of employment of the em-
ployees listed in Appendix A and thereafter refused them reinstate-
ment. It appears, however, that since July 16, 1937, a number of the
locked-out employees have returned to the respondent's employ. We
shall therefore order the respondent to offer to the employees named
in Appendix A who have not been fully reinstated, reinstatement to
their former' or substantially equivalent positions." Such reinstate-
ment shall 'be effectuated in the following manner: All persons hired
after July 16, 1937, shall, if necessary to provide employment for those
to be offered reinstatement, be dismissed. If, thereupon, by reason of
a reduction in force, there is not sufficient employment immediately
available for,the'remaining employees, 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 em-
ployee because of his union affiliation or activities, and following a
system of seniority to such extent as has heretofore been applied in the
conduct ofi,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 accord-
ance 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.
We shall further order that the respondent make whole the employees
listed in Appendix A for any losses in pay they may have suffered by
reason of the respondent's discrimination against them, by payment to
each of them of a sum of money equal to the amount each employee
normally would have earned as wages from July 16, 1937, (1) to the
date of reinstatement in the case of those employees who have been
71 As used above, the term "fully reinstated " refers simply toemployees who have
been placed in their former or susbtantially equivalent positions , -and as to whom the
respondent is, therefore , not required to offer reinstatement to such positions Our
order contemplates that all employees shall receive full restoration of seniority and
other rights. and privileges to which they would have been entitled absent the respondent's
unfair labor practices.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fully reinstated, and (2) to the date of the offer of reinstatement or
placement upon a preferential list as above set forth in the case of
.:those employees who have not been_,full.y reinstated. Netz e brirings 72
during said period 73 of discrimination shall be deducted from the-
Sum due each employee as described above.74
We have above found that Manual Gonzales was discharged dis-
criminatorily on July 16, 1937, but that the respondent prior to that
date had decided to discharge Gonzales for reasons of inefficiency at
the time of the next regular seasonal shut-down. Under such cir-
cumstances, we are of the opinion that the policies of the Act will
be effectuated by requiring that Gonzales be made whole only for
loss of wages which he would normally have earned from July 16,
1937, until such time as the respondent would normally, without dis-
criminatory motive, have terminated its seasonal plant operations.
We cannot determine with any degree of certainty when•slich normal
seasonal shut-down would next have occurred. We have noted that.
the respondent in determining its operating schedule during the year.,,,
1935 and 1936 apparently. observed an established policy of setting,
the date for closing with regard to monthly periods and of actually
closing on the last days thereof. The record also indicates, as above
stated, that it would have taken over 20 days of normal operations
after July 16, 1937, to produce sufficient clinker to achieve storage
parity with that on hand at the time of the seasonal shut-down of'
July 31, 1936. In view of these and other factors in the record, we
are of the opinion that the respondent would have continued full
plant operations at least until July 31, 1937. It is possible, however,
although the respondent's intervening discrimination renders the
matter uncertain, that the respondent would have instituted a normal
--seasonal shut-down for""business-reasons on -that, date. We shall ac-
cordingly require that the respondent pay to Manuel Gonzales a sum
72 By "net earnings " is meant earnings less expenses such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the unlaw-
ful discrimmnation against him and- the consequent necessity for his seeking employment
elsewhere See Matter of Crossett L-umber Company and United Brotherhood of Car-
penters and Joiners of America , Lumber and Sawmill Workers Union, Local 15.90, 8 N. L. R.
B 440 . Monies received for work performed upon Federal , State , county , municipal, or
other work-relief projects shall be considered as earnings See Republic Steel Corporation V
N.LRB, 311U S 7
73 It appears in the record that three of the employees listed in Appendinx A have died
since the date of the discrimination against them , although no details a,e set forth. In
the case of deceased employees, our order contemplates payment to the respective estates
of such employees sums of money equal to the amounts each would normally have earned
as wages from July 16 , 1937, to the date of his death National Labor Relations Board v
Hearst, 102 F (2d) 658 (C. C A. 9).
14 The respondent contends that back pay may not be awarded-to thosemof its employees
who have returned to work with it, for the reason that back pay may not be awarded
absent an accompanying order of reinstatement This contention is foreclosed by the
decision of the Supreme Court in Phelps Dodge"Corporation v National Labor Relations
Board, 313 U S 177, mod and remanding 113 F ' (2d) 202 (C C A 2)
OOWELL PORTLAND CEMENT COMPANY 701
.of money equal to that which he would have received as wages if
he had, been working steadily for the respondent during the period
from July 16, 1937, through July 31, 1937, less his net earnings i5
during that period.
The respondent, resumed full operations following the July 16,
1937, lock-out on October 1, 1937. In accordance with the determina-
tion set forth in the previous paragraph we shall hold that the em-
ployees listed in Appendix A who would normally have been laid off
at times- of regular seasonal -shut-downs would not have worked
between August' 1;' 1937; and October 1, 1937, since this period repi,e-
sents, in our estimation, the period during which the respondent
would normally, without discriminatory motive, have suspended
operations for business reasons during the summer of 1937.7' Such
employees therefore shall not be deemed to have suffered losses in
pay during ,their period.77 This ruling will not, of course, apply in
the cases of those employees, such as packing and sack house workers,
who would normally have been employed throughout a seasonal
shut-down.
The respondent has advanced in its exceptions and brief various
contentions in opposition to the remedy above outlined, which is, in
substance, that recommended by the Trial Examiner. The respond-
ent contends that our order should exclude from its terms those
employees who have secured regular and substantially equiv'al'enf
employment from other employers. No evidence was adduced at the
hearing concerning the obtaining of equivalent employment, but it
was stipulated that such questions might be left open for supple-
mentary proceedings in the, event they became necessary upon a find-
ing of -discrimination by the Board. In the exercise of our ai tlihrity
granted iby 'Section 10 (c) of the Act, we shall require,that offers of
reinstatement be made to all persons listed in Appendix A.7' We
find that such ,remedial order 'is necessary to assure effectively the
right of self-organization to the respondent's employees and thus
effectuate the policies of the Act.7°
75 See footnote , 72, supra
76 The fact that the respondent closed its packing and sack house on July 16, and that
orders for cement which would have been ' filled with the respondent ' s product ,were- filled
with purchases from other producers until August 27, found the respondent with greater
reserves of cement and clinker on hand prior to and on October 1 than would otherwise
have been the case We are of the - opinion therefore that operations would 'have been
resumed on that date even had the respondent operated until July 31.
77 Cf Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local
Union No 3, International Woodworkers of America, 20 N. L. R. B 1, 72 Similarly, of
course, earnings during this period shall not be deducted from the sums otherwise due to
the employees as back pay
78 See Phelps Dodge Corporation v' National Labor Relations Board, supra
'Matter of Ford Motor Company and International Union, United Automobile Workers
of America, Local Union No 24.9, 31 'N L. ' R 'B 994 ; National Labor Relations B oar d v
''Continental Oil Company , 121 F- (2d) 120 (C C. A 10)
702 DECISIONS OF. NATIONAL, LABOR. RELATIONS BOARD
The respondent calls attention to the fact that it,sent letters on
September 20, 1937, to certain of the employees listed in Appendix A,
requesting their return to work on October 1, 1937, when the 'plant
resumed full operations. As we have found, however, the respondent
at all times after July 16, 1937, required as a condition of employ-
ment designation of and membership in an A. F. of L. organization
as projected and as later established. This condition, illegal in its
inception and continuance by means of the closed-shop contracts with
the A. F. of L. Locals, was made known to Local 356 and to individual
employees on various occasions prior to September 20, 1937. Al-
though not adverted to in the letters, the employees well knew that
a return to work was conditioned upon membership in Local 21074.80
Under such circumstances the respondent cannot contend that failure
to respond to such solicitation deprives the employees of their rights
to reinstatement or back pay. We find that all employees who failed
to make answers to these communications did so because of their
understanding that the offers were conditional upon their becoming
members of Local 21074.51 And in legal effect, a discriminatory offer
of reinstatement is immaterial .112 Equally without effect as a sub-
stantive defense or upon the question 'of the appropriate remedy is
the respondent's assertion that Local 356 has never requested the
reinstatement of its members, and that individual employees, have
likewise failed to seek reinstatement. ,.In - the first place the 're-
spondent, having discriminatorily locked out -its employees on July
16, was under an affirmative duty to offer the employees full and
unequivocal reinstatement, and the employees were under no obliga-
tion to seek reinstatement on their own initiative. Secondly, even
though' the employees were on strike after July 17, 1937,83 as a result
of th'e respondent's unfair labor practices, it cannot be held that
80 It is stipulated in the record that the respondent at all times subsequent to the
execution of the contract with Local 21074 on August 27, 1937, observed and enforced
the close-shop provisions thereof.
81 See Matter of Eagle-Pitcher Mining & Smelting Company at at and International
Union of Mine, Mill & Smelter Workers, Local Nos 15, 17, 107, 108, and 111, 16 N L R. B.
727 (enf'd as mod. Eagle-Pitcher Mining & Smelting Company v. N. L. R B., 119 F. (2d)
903 (C C. A. 8)) and the cases cited and discussed at p. 811 of our' decision and order
'therein
82 National Labor Relations Board v. National Motor Bearings Company, 105 F. (2d)
652 (C. C. A. 9), enf'g as mod Matter of National Motor Bearings Company and Inter-
national Union, United Automobile Workers of America. Local No. 76, 5 N L R. B. 409;
"Willingness to reinstate employees only on the condition [that employees accept member-
ship in a company-favored union], conditions which the respondent had no right to attach,
is equivalent to absolute refusal to reinstate" ; National Labor Relations Board v. Carlisle
Lumber Co., 94 F. (2d) 138 (C. C. A. 9), cert. den. 304 U.,S. 575, 99 F. (2d) 533, cert.
den, 306 U. S. 646, enf'g Matter of Carlisle Lumber Co and Lumber and Saga Mill ,Workers'
Union, Local 2511, 2 N. L. R. B. 248.
83 As we have above pointed out, the employees' tenure was illegally terminated by the
respondent's action on July 16 ; the strike called on July 1 17 did 'not result therefore
in the withdrawal of employees from work. Cf. Matter of Charles Banks Stout et at and
Federal Labor Union No 20028, affiliated with the American Federation of Labor, 15
N L. R. B. 541.
COWELL PORTLAND CEMENT COMPANY 703
formal. application was required of them when it was known to them
that such application. would be fruitless in view of the illegal condi-
tion established by the respondent and made known to individual
applicants for employment such as Reynolds, to Butzer and Sayers,
and to the representatives of Local 356 84
In its brief the respondent urges that we depart in this case from
our usual practice of ordering back pay from the date of the dis-.
crimination to the date of the offer of reinstatement on the ground 1
that the Board "has been guilty of long unjustified delays in this
case, with consequent serious injury to employer and employees."
Under the circumstances of this case, we are of the opinion that such
it departure would be unwarranted. Concerning the alleged "serious
injury to the employees," it is apparent that they will suffer only
from the adoption of the policy for which the respondent contends.
The original charges on behalf of these employees ^ were filed on July
17, 1937. The original complaint of the Board was issued on August
20, 1937. The respondent has been legally chargeable with knowledge
of its commission of the unfair labor practices above found, and has
at all times since the service of the original complaint been on notice
of the precise claims made on behalf of the Government. Although
it had then and has had at all subsequent times the power to stop the
accumulation of back pay by reinstating the discriminatorily dis-
charged employees, the respondent chose even after receipt of such
notice to continue upon its preconceived illegal course of action and
to perpetuate its discrimination by the execution and enforcement
of the invalid closed-shop contracts above discussed. The employees
have been powerless to expedite the administrative process which they
promptly invoked against the respondent's intransigent opposition
to the Act. Under such circumstances we are of the opinion that
effectuation of the policies of the Act requires that our order restore
to these employees, as nearly as possible, the full amount of the losses
which they have suffered by reason of the respondent's violation
of their rights to self-organization and to collective bargaining
through representatives of their own choosing.
"'See the Carlisle Lumber and Eagle-Pitcher cases cited in the two previous footnotes ;
cf. also National Labor Relations Board v . Sunshine Mining Co , 110 F . ( 2d) 780
(C C. A 9), enf'g Mattel of Sunshine Mining Company and International Union of
Mine, Mill and Smelter Woikeis, 7 N L R. B 1252 This condition was imposed
at all times after July 16 The employees were thereby prevented from obtaining
the reinstatement due them and cannot be held to have ' Voluntarily withheld their services.
National Labor Relations Board v American Manufacturing Co, 106 F (2d) 60, (C C. A.
2) enf'g as mod Matter of American Manufacturing Company et al. and Textile Workers'
Organizing Committee, C. 1 0., 5 N L. R B 443, aff'd as mod. 309 U. S. 629; National
Labor Relations Board v. Kentucky Fire Brick Co., 99 F. (2d) 89 (C C A 6), enf'g
Matter of Kentucky Fire Brick Co and United Brick and Clay Workers of America, Local
Union No 510, 3 N L. R B. 455.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The remedy above, providing for the reinstatement of the em-
ployees listed in Appendix A With back pay, is designed to place
such employees, as nearly as .possible, in the positions each would have
occupied but for the respondent's unfair labor practices. The remedy
is based not only upon our finding that the respondent discriminated
with -regard to the hire, tenure, terms, and conditions of employment
of such employees by locking ;them out on July 16, but also, with an
exception in the instance of Manuel Gonzales, independently upon
our -finding that the respondent immediately upon the shut-down
of July 16, and at all times'ther'eafter,'illegally conditioned further
employment,of the employees then laid off upon designation of and
membership in a union not of their own choosing.
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. International Union, Mine, Mill & Smelter Workers of America,
Local 356, and United Cement, Lime & Gypsum Workers, Interna-
tional Union, Local No. 86, are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. Lime & Cement Employees Union of Contra Costa County -No.
21074, was a labor organization, within the meaning of Section 2 (5)
of the Act.
3. United Cement, Lime & Gypsum Workers, International Union,
Local No. 86., is the successor to Lune & Cement Employees Union of
Contra Costa No. 21074.
4. All the employees at or about the Cowell plant with the excep-
tion of executives, supervisory employees of the rank of foreman
or above, persons having the right to hire and discharge, hospital
employees, watchmen, guards, and persons employed at Rancho de
los 'Cowell constituted, at all times material herein until May 1, 1938,
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section .9 (b) of the Act. From May 1, 1938'until
July •22, 1938, the foregoing persons, with the excltlsmon of shovel
operators and oilers, constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
5. All the employees at or about the Cowell plant with the ex-
ception of executives, supervisory employees of the rank of foreman
or above, .persons having -the night to hire and discharge, hospital
employees, watchmen, guards, persons employed at 'Rancho de los
Cowell, shovel operators, shovel oilers, truck drivers and tractor op-
erators have constituted since July 22, 1938, and now constitute a
COWELL PORTLAND CEMENT COMPANY 705
unit appropriate for the purposes' of, collective bargaining within the
meaning of Section 9 (b) of the Act:
- 6. International Union, Mine, Mill & Smelter Workers of America,
Local 356, was on July 16, 1937, and at all times thereafter has been,
and now is, the exclusive representative of all the employees in the
appropriate unit as heretofore constituted and as now constituted for
the purposes of collective-bargaining; w-ithin the meaning of Section
(a) of the Act.
7. By refusing to bargain collectively -,with International Union,
Mine, Mill & Smelter Workers'of'America, Local 356, as the exclusive
representative of its employees in the appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
8. By discriminating in regard to the hire and tenure of employ
nient and terms and conditions of employment of the employees
listed in Appendix A, and of Manuel Gonzales, thereby discouraging
membership in International Union, Mine, Mill & Smelter Worker's'
of America, Local 356, and encouraging membership in Lime &'
Cement Employees Union of Contra Costa County No. 21074, and
in United Cement, Lime & Gypsum Workers, International Union,
Local No. 86, the respondent has engaged in and is engaging in
unfair labor' practices, within the meaning of Section 8 (3) of the
Act.'
9. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,'
within the meaning of Section 8 (1) of the Act.
10. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the 'Act.
11. The respondent did not on July 16, 1937, discriminate in regard
to the hire and tenure of employment of T. Berger, F. D.' Hayes,
E. P. Malone, L W. Ht mes, F. Mendoza, or C. Koup, within the
meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Cowell Portland Cement Company, and its officers, agents,
successors, and assigns, shall: -
1. -Cease and desist , from :
(a) Discouraging membership in International Union, Mine, Mill
& Shelter Workers of America, Local 356, or encouraging member-
455771-42-%of 4t5-45
706 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
ship in Lime & Cement Employees Union of Contra Costa County
No. 21074, or in United Cement, Lime and Gypsum Workers, Inter-i
national- Union, Local No. 86, or discouraging or encouraging mem-
bership in any other labor organization of its employees, by discrim-
inating in regard to the, hire or tenure of employment or any term
or condition of employment of its employees; - -
(b) Recognizing Lime & Cement Employees Union of Contra
Costa County No. 21074 or recognizing United Cement, Lime &
Gypsum Workers, International Union, Local No. 86, as the exclusive
representative of its employees for the purposes of collective bargain-
ing unless and until either of said labor organizations shall have been
certified as such by the National Labor Relations Board ;
(c) Giving effect to its contracts dated' August 27, 1937, and
October 23, 1937, with Lime & Cement Employees Union of Contra
Costa County No. 21074 or giving effect to its contract dated April
10, 1940, with United Cement, Lime & Gypsum Workers, Interna-
tional Union, Local No. 86, or to any extension, renewal, modification,
or supplement thereof, or to any superseding contract which may now
be in force;
(d) Refusing to bargain collectively with International Union,
Mine, Mill & Smelter Workers of America, Local 356, as the exclusive
representative of all its employees at or about its Cowell plant, with
the exception of executives, supervisory, employees of the rank of
foreman,or above, persons having the power to hire and discharge,
hospital employees, watchmen, guards, those employed at Rancho
de- los Cowell, shovel operators, shovel oilers, truck drivers, and trac-
tor operators in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(e) Urging, persuading, intimidating, or coercing its employees to
join Lime & Cement Employees Union of Contra Costa County No.
21074, . or United Cement, Lime & Gypsum Workers, International
Union ;Local No. 86, and/or not to join- International Union, Mine,
Mill ,& Smelter Workers of America, Local 356, or to join or not
to join any other labor organization of its employees;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through 'representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer the employees listed in Appendix A who have not been
fully reinstated, immediate and, full reinstatement to their former
COWELL PORTLAND CEMENT COMPANY 707
or substantially equivalent positions wiithout prejudice to their sen-
iority and other rights and privileges in the manner set forth in the
Section entitled "The remedy" above, placing those employees for
whom employment is not immediately available upon a preferential
list in the planner set forth in said Section and thereafter in said
manner offering them employment as it becomes available;
(b) Make whole the employees listed in Appendix A for any loss
of pay they may have suffered by reason of the respondent's dis-
crimination against them by payment to each of them of a sum of
money equal to the amount which he normally would have earned as
wages from July 16, 1937, (1) to the date of reinstatement in the
case of those employees who have been fully reinstated, and (2) to
the date of the offer of reinstatement or placement upon the prefer-
ential list in the case of those employees who have not been. fully-
reinstated, less his net earnings during said period; 85
(c) Make whole Manuel Gonzales for any loss of pay he may have
suffered by reason of the respondent's discrimination against him by
payment to him of a sum of money equal to that which he normally
would have earned as wages from July 16, 1937, through July 31,
1937, less his net earnings during said period;
(d) Withdraw and withhold all recognition from Lime & Cement
Employees Union of Contra Costa County No. 21074 and from
United Cement, Lime & Gypsum Workers, International Union, Local
No. 86, as the representative of its employees for the, purpose of
dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
unless and until either of these organizations shall have been certified
as such by the National Labor Relations Board;
(e) Upon request bargain collectively with International Union,
Mine, Mill & Smelter Workers of America, Local 356, as the exclusive
representative of all its employees at or about the Cowell plant, with
the exception of executives, supervisory employees of the rank of
foreman or above, persons having the power to hire and discharge,
hospital employees, watchmen, guards, those employed at Rancho da
los Cowell, shovel operators, shovel oilers, truck drivers and tractor
operators in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(f) Post immediately in conspicuous places throughout its plant at
Cowell, California, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees,
stating: (1) that the respondent will not engage in the conduct from
81 It shall not be deemed that employees normally laid off during times of seasonal
shut-downs would have earned wages from August 1, 1937 to October 1, 1937 , nor shall
net earnings , if any, during such period be deducted from the sums otherwise due the
employees under this Order.
708 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
which it is ordered to cease and desist in paragraph 1 (a), (b), (c),
(d), (e), and (f) of this Order; (2) that it will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), (d), and (e), of this
Order; and (3) that the respondent's employees are free to become
and remain members of International Union, Mine, Mill & Smelter
Workers of America, Local 356, affiliated with the Congress of Indus,
trial Organizations, and that the respondent will not discriminate
against any employee because of his membership or activity in that
labor organization;
(g) Notify the Regional Director for the Twentieth Region in
writing within ten (10) clays from the date of this Order what steps
the- respondent 'has taken to, comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent discriminated in- regard to the hire and teiiure
of employment of T. Berger, F. D. Hayes, C. Koup, E. P. Malone,
L. W. Hames, and F. Mendoza, on July 16, 1937, be, and it hereby
is, dismissed.
MR. GERARD D. •REILLY took no part in the consideration of the
above Decision and Order.
APPENDIX A
Able, A. P.
Arias, Isidro
Arriaga, J.
Arrien, P.
Ball, C. L.
Ballmes, C. V.
Bariani, D.
Barreras, R.
Bisso , Angelo
Black, B.
Bowe, Tom
Bronsdon, U. P.
Brown, R.
Burgess, J.
Burruss, W.
Burt, J. A.
Bustamente, M.
Butler, R.
Butzer, E.
Cain, J.
Capitani, D.,
Carlos, J.
Carrera, J.
Carter, H.
Castro, J. M.
Chaves, Luis
Chapralis, N.
Chilton, G. L.
Civello, Frank
Clark, B.
Colombo, E.
Colston, W. H.
Conway, J.
Coulombe, L. E.
Delsigne, John
Derigo, E.
Diegelman, C. D.
Dimas, Theo
Draper, R.
Fabre, R.
Fariss, E. W.
Faulkner, R.
Flores, R.
Fontana, E.
i
COWELL PORTLAND CEMENT COMPANY 709
Foster, L. S. -
Francis, F.-E.
Frasee, P.
Frenre, H.
Fuller, J. W.
Garcia, B. V.
Garcia, H.
Garcia, Miguel
Garcia, S.
Garrison, C. B.
Gericke, Eldon
German, R.
Gilmore, G.
Gonsales, Pedro
Gonsalves, A.
Gruessing, Lester
Hanson, W.
Harris, J.
Harrison, J.
Hewlett, M.
Hogan, F.
Holman, C. D.
Johnson, A.
Johnson, G. A.
Kaminski, J. A.
Kaske, R.
Kimbley, N. E.
Kirby, H. W.
Krieger, W. M.
Kriticos, C.
Kuhne, F.
Lamberger, M.
Lane, D. J.
LaVerne, D.
Layman, C. N.
Lopes, Albert
Losa, L.
Lousa, German
Lujan, S.
Maduros, W.
Manos, N.
Manos, W.
Marines, D.
Marines, Geo.
Marshall,- M.
Marseu, L. -
Martin, Pete
McAtee, H. D.
McCall, J. H.
McGinley, Mike
McKeen, Jas.
McMorris, E.
McMorris, H.
McMorris, R.
Miller, I.
Mogus, Mathew
Molina, A.
Monde, Ralph
Monterrosa, R.
Montes, C.
Montes, E.
Montes, M.
Moreno, Benito
Morgan, D. D.,
Murphy, F.
Nelson, W. A.
Nichols, A.
Nichols, H. A.
Ortega, P.
Padilla, V.
Paoli, F.
Pearce, Tom
Pendergrass, C.
Pendergrass, T. A.
Perez, A.
Perez, P.
Pereira, M.
Peterson, W.
Phillips, V.
Pippert, F.
Piscovich, M.
Porath, F.
Prentice, H. M.
Puerta, C.
Rameris, Ferando F.
Ramsey, W.
Regan, J.
Remmert, Ralph
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reynolds, D. B.
Richardson, W. L.
Robbins, T.
Robinson, W. C.
Rodriguez,.Ricardo
Rogers, H.
Romero, E.
Rubiales, Jim
Rubiales, John
Rubiales, Juan
Salisbury, B.
Sallaba, Jack
Sanchez, A.
Sayers, T. P.
Sayers, Victor
Seay, H. -
Seay, John
Seeley, Milton
Silva, W. J.
Smith, C. B.
Smith, H.
Snaveley, Farel
Speck, Dan
Solis, P.
Steers, C. H.
Stine, D.
Thoma, Earl
Tooley, S.
Tunnell, Guy
Unick, B.
Valencia, D.
Valencia, Jose
Vanzura, F. C.
Vargas, R.
Vasilakis, M.
Walsh, J.
Warford, J. A.
Whaley, F.
Wood, 0.