Kokomo Sanitary Pottery Corp.

National Labor Relations Board - Board Decisions

Aug 1, 1940

26 N.L.R.B. 1 (N.L.R.B. 1940)

In the Matter of KoKoMo SANITARY POTTERY CORPORATION and
NATIONAL BROTHERHOOD OF OPERATIVE POTTERS, LOCAL No 26
Case No. C-913.Decided August 1, 1940
Jurisdiction : pottery manufacturing industry.
Unfair Labor Practices.
Company-Dominated Union: employer participation in formation of, prior to
effective date of Act and continued domination thereafter, solicitation of mem=
hers,and contribution of support to, subsequent to effective date of Act.
D_ascrimination• refusals to reinstate employees in accordance with terms of
strike settlement; charges of discrimination as to certain persons, dismissed
Employer, who, after agreeing to giveGprefdrence in employment to laid-off
employees and to persons who went on strike prior to effective date of Act,
hired new employees to fill jobs which could have been performed by persons
named in preferential list, held to have discriminated against listed persons
as a class, although record does not show precise extent of discrimination
as to each.
Where strike was not caused by unfair labor practices, but strike-settlement
agreement provided that employer should offer jobs as vacancies occurred,
strikers need make no further application in order to be entitled to non-
discriminatory consideration by employer in filling vacancies.
Remedial Orders : reinstatement and hack pay; company-dominated union
disestablished.
Employees who, after beirg discriminatorily refused reinstatement, went
on strike, and'thereaftcr were offered reinstatement, held entitled to back
pay, notwithstanding strike, to date when offer of reinstatement was made.
Where respondent checked off ` moneys from employees' wages for the
purposes of insurance protection and company-dominated union dues, and
the record does not show the amounts allocated to each item, the respondent
was ordered to repay the whole sum checked off
Definitions
Persons laid off prior to effective date of Act but not discharged, held
employees after adoption of Act.
Strike which began in February 1935 held "current" as of September 1936
because of pendency of settlement negotiations, although strikers had been
replaced and production fully resumed prior to adoption of Act and picket
line was dispersed in July 1935
M7. George Rose, for the Board.
Wolf & Love, of, Chicago, Ill., and Mr. C. Leo Williams and Mr. F
A Welsh, of Kokomo, Ind., for the respondent.
Mr. Joseph A. Padway and Mr. Herbert S. Thatches, of Washington,
D. C., Mr. James M. Duffy, of Liverpool, Ohio, and Mr. Glenn
McCarter and 1117. Russell Yon Cannon; of Kokomo, Ind., for the
Union.
Mr. Richard A. Perkins, of counsel to the Board.
26 N L. R. B , No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by National Brother-
hood of Operative Potters, Local No. 26,.herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Eleventh Region (Indianapolis, Indiana),
issued its complaint dated November 24, 1937, against Kokomo
Sanitary Pottery Corporation, herein called 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), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. The complaint and a notice
of hearing thereon were duly served on the respondent, the Union,
and Ko-San Club, a labor organization hereinafter sometimes referred
to as the Club.
Concerning the unfair labor practices the complaint alleged in sub-
stance that the respondent discouraged membership in the Union by
terminating the employment of 42 named employees and refusing to
reinstate them, because of their membership and activity in the
Union; dominated and interfered with the formation and administra-
tion of the Club and contributed support thereto ; and thereby, and
by other facts, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On December 6, 1937, pursuant to an extension of time granted by
the Regional Director, the respondent filed an answer in which it
admitted certain allegations of the complaint relating- to the nature
of the respondent's business and the existence of the Club, but denied
the other material allegations of the complaint.
Pursuant to the notice of hearing and a notice of postponement,
which was duly served upon the respondent, the Union, and the Club,
a hearing was held at Kokomo, Indiana, from December 13 to 17,
1937, before Henry-J. Kent, the Trial Examiner duly designated by
the Board. The respondent, the Union, and the Club did not appear
or participate in the hearing. The evidence adduced at the bearing
consisted of the testimony of witnesses called by counsel for the Board
and documentary evidence produced by the respondent on return to
subpena-daces tecum.
On August 26, 1938, the Trial Examiner filed an Intermediate
Report in which be found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Sections 8 (1), (2), and (3) and 2 (6) and (7) of the Act,
KOKOMO SANITARY POTTERY CORPORATION 3
and recommended that the respondent cease and desist from such
unfair labor practices, reinstate 39 employees with back pay, and
completely disestablish the Club as the collective bargaining repre-
sentative of any of the respondent's employees. As to three persons
named in the complaint as having been discrimmatorily refused
reinstatement, the Trial Examiner recommended that the complaint
be dismissed.
On September 8, 1938, the respondent asked for an extension of time
within which to file exceptions to the Intermediate Report. On
September 12, 1938, the Board granted all parties until September
22, 1938, to file exceptions. On September 22, 1938, the respondent
filed exceptions to the Intermediate Report, together with a request
for oral argument and for leave to offer certain unspecified evidence.
The Board by order dated September 26, 1938, granted the request
for oral argument at a time to be fixed later and denied the request
for leave to introduce additional evidence, without prejudice to the
right to renew the request at the argument. On October 13, 1938,
the Board issued and served on all parties notice of a hearing to be _
held on November 15, 1938, for the purpose of oral argument., On
October 17, 1938, the respondent requested a postponement of the
oral argument. This postponement was denied on October 20, 1938.
On November 9, 1938, the Board notified all parties of the indefinite
postponement of the oral argument previously scheduled. On
January 15, 1939, Wolf & Love, attorneys, who had not previously
appeared of record in the proceeding, telegraphed the Secretary of
the Board, stating that they had prepared a petition for a re-reference
of the proceeding to a Trial Examiner, to be presented at the oral
argument "directly by respondent" and that if the petition appeared
insufficient to justify the relief therein prayed, they requested a
continuance for 25 days to enable them to prepare adequately.
On January 17, 1939, pursuant to notice, a hearing for the purpose
of oral argument was held before the Board in Washington, D. C.
No counsel appeared for the respondent, which was represented by
two of its officers. They presented a certain petition hereinafter
discussed but made no argument on the merits of the case. The Union
appeared by counsel and by certain officers, argued the case on the
merits, and opposed any reopening of the record or re-reference to a
Trial Examiner.
The petition presented January 17, in addition to legal argument,
set forth certain matters by way of excuse for the respondent's failure
to participate in the hearing before the Trial Examiner, alleged the
availability of evidence said to be material which the respondent was
prepared to adduce, and prayed that the Board "reopen the record,
and require the taking of further evidence before a Trial Examiner,
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other agent or agency of the Board, or enter such other order as
may be appropriate and just under the circumstances."
On February 8, 1939, the Board entered' an order denying the re-
spondent's petition of January 17 except that the respondent was
granted leave, subject to objection, to offer certain documents'in
evidence by filing the same with the Chief Trial Examiner. - We shall
briefly discuss the considerations underlying this ruling.
First, as to the respondent's showing in support of its request, the
petition alleges as follows: At the time of issuance of the original
notice of hearing before the Trial Examiner, the respondent's president,
one Max Gerber, was traveling in Pennsylvania'and New York on the
respondent's business., On November 26, 1937, after receiving the
original notice of hearing, Gerber's secretary wrote the Regional Direc-
tor stating that Gerber was absent and could not then be reached, but
would be at a certain address in Now York City during the following
week. The Regional Director replied by letter dated November 27,
1937, stating that no adjournment would be possible, that Gerber's
secretary was responsible for keeping Gerber notified and suggesting
that the respondent's counsel be consulted. Gerber telegraphed the
Regional Director on December 1, 1937, stating that business detained
him in New York City and requesting a continuance until December 20.
On December3, 1937, the Regional Director telegraphed the respondent
announcing that the hearing previously set for December 6 would be
postponed indefinitely. Gerber remained in the East in reliance on
this last communication from the Regional Director.
The petition further alleges: the Regional Director advised the
respondent by wire on December 7, 1937, that the hearing would begin
December 13. Gerber's secretary wrote the Regional Director on
December 9, statingthat Gerber could not return to Kokomo before
December 16; and the Regional Director replied by telegram on Decem-
ber 10 that the hearing would proceed as previously noticed. The
respondent had not' retained counsel by reason of the expense and
because competent counsel was not available in the respondent's
community, and none of the respondent's employees was authorized
to retain counsel in Gerber's absence. The respondent finally secured
counsel on January 15, 1939, according to the petition,-over a year
after the issuance of the complaint and only 2 days prior to the oral
argument requested. by the respondent and postponed from Novem-
ber 15, 1938.
It is plain that no: principle of judicial usage or practice or any rule,
regulation, law, constitutional provision, or requirement of justice
entitled the respondent upon such a showing to any further oppor-
tunity to be heard or adduce additional evidence.', If the respondent
corporation is so organized as to be' incapable of carrying on business
' Cf National Labor Relations Board v American Potash and Chemical Corp. (C. C. A 9) 98 F. (2d) 448.
KOKOMO SANITARY POTTERY CORPORATION 5
during its president 's absence and if no subordinate with any authority
is left in charge , the respondent must suffer whatever inconvenience
may ensue therefrom. The hearing lasted from December 13 through
December 17, 1937. Gerber's secretary wrote on December 9 that he
could not return to Kokomo prior to December 16. The respondent
could have procured counsel to attend the hearing and upon a proper
showing, if such were possible, move for a continuance before the Trial
Examiner under Article II, Section 14, of National Labor Relations
Board Rules and Regulations-Series 1, as amended-which provided
that the Trial Examiner should rule on motions made during the hear-
ing; Gerber could have testified on December 16 and 17; and the
Trial Examiner would presumably have granted such additional time
as might have been necessary for the respondent to present its case.
The assertions that the respondent could not afford counsel and that
competent counsel could not be had locally we lay on one side as
frivolous. If the respondent can engage in manufacturing operations
it can retain counsel. We cannot believe that the bar of Kokomo,
Indiana, and vicinity is incapable of furnishing proper representation
for the respondent; in any event the respondent had time to go else-
where: It may be remarked here that the respondent's answer to the
complaint, filed December 6, 1937, and its exceptions to the Inter-
mediate Report, filed September 22', 1938, appear to have been drawn
by someone familiar with legal phraseology although they bear the
name of no attorney and the respondent asserts that it did not secure
counsel until January 15, 1939.
The respondent 's actions subsequent to the hearing, in requesting
oral argument, then asking for a continuance , and when the argument
was finally set down nearly 4 months after the request, filing a dilatory
petition and neglecting to make an argument on the merits , furnish
additional reason for doubting that the respondent had ever in good
faith endeavored to present a defense on the merits.
The Board has, however, granted the respondent an opportunity to
offer certain documents in evidence. One of the issues in the case
was whether, and if so, when, the respondent had offered reemploy-
ment to the persons alleged in the complaint to have suffered dis-
crimmation. The respondent's petition of January 17, 1939, referred
to copies of letters offering reemployment and postal registry receipts
said to be in its possession . Our order of February 8, 1939, granted
the respondent leave to offer the same in evidence, subject to objection.
The respondent on March 3, 1939, in purported compliance with our
order of February 8, 1939, filed with the Chief Trial Examiner its
"Verified Offer of Proof" containing certain copies of letters , postal
registry receipts , envelopes , and proof of mailing , receipt, or non-
delivery of said letters , and in addition , certain argumentative ma-
terial by way of assertions concerning matters not covered by the
323429-42-vol 26---2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave to offer evidence granted by us on February 8, 1939. Pursuant
to the terms of our order of February 8, 1939, the Union on March
10, 1939, duly filed its written objection and argument in support
thereof. The Union's objections go to the relevancy of 'the material
offered. There is no contention that the letters were not in fact sent;
most of the addressees testified at the hearing before the Trial Exam-
iner that they had received letters; the only question remaining was as
to the dates. We hereby overrule the objection of the Union to the
offer in evidence of the letters, postal registry receipts and proof of
mailing, receipt, or non-delivery of said letters, and the same are
hereby admitted and made a part of the record. The Union's objec-
tion is sustained as to all other matters included in the respondent's
"Verified Offer of Proof."
The respondent submitted with its Verified Offer of Proof" another
request for oral argument. This is hereby denied. As stated above,
the respondent has neglected to avail itself of its opportunities to make
argument, and it is not now entitled to any further opportunity. The
receipt of the documentary evidence solely in the Board's discretion
does not enlarge the respondent 's rights in this respect ; as hereinafter
appears, the documentary evidence is received with the effect of limit-
ing the respondent's liability rather than extending it. Any further
opportunity of argument would be merely a repetition of that of which
the respondent neglected to take advantage on January 17, 1939.
The Board has considered the respondent's exceptions to the
Intermediate Report, and, except in so far as they are consistent with
the findings of fact, conclusions of law, and order below, finds them
to be without merit, and they are hereby overruled.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Kokomo Sanitary Pottery Corporation is an Indiana corporation
engaged in the manufacture of pottery and earthenware products,
including toilet bowls , tanks , and lavatories, at its factory in Kokomo,
Indiana. The clay used in the respondent's processes is compounded
of several ingredients, including feldspar from North Carolina and
Tennessee, ball clay from Tennessee and from England, china clay
from South Carolina, ground silica and sand from Illinois, ,and chemi-
cals from Ohio. The respondent installs on its products brass fittings
obtained from Indiana, Michigan, and eastern States. According to
the estimate of G. H. Machin, secretary of the respondent, given at
the hearing, about 60 per cent of the raw materials used in the respond-
ent's manufacturing processes are obtained from without the State
of Indiana.
KOKOMO SANITARY POTTERY CORPORATION 7
The respondent's 1936 production was about 30,000 pieces. Machin
testified variously that 40 per cent, or "a greater proportion," of the
respondent's products is distributed outside the State of Indiana.
The respondent's answer contains an admission of paragraph 2 of the
complaint, which alleges that the respondent had purchased and
transported a substantial part of its raw materials from outside Indiana
for use at its Kokomo plant and had caused its products to be sold and
transported in interstate commerce from the Kokomo plant into and
through States other than Indiana.
In the principal operations carried on"at the respondent's pottery,
clay is mixed, cast into molds, dried, glazed, and burned.
The respondent employed at the time of the hearing about 175
persons, of whom about 160 were engaged in production.
II. THE ORGANIZATIONS INVOLVED
National Brotherhood of Operative Potters, Local No. 26, is a
labor organization affiliated with the American Federation of Labor.
The Union admits to membership all the employees of the respondent
except office workers, engineers, superintendents, and executives.
Ko-San Club is an unaffiliated labor organization Although it
exists primarily for social and recreational purposes and has not been
very active (see Section III infra) its former chairman, Richard Lee,
testified at the hearing, and we find, that the Club has discussed wages,
working conditions, and grievances with the respondent's management.
Although the respondent's exceptions urge that the Club is not a
labor organization within the meaning of Section 2 (5) of the Act, we
find that it is a labor organization.'- A further discussion of the Club
appears in Section III, infra.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The Union was formed among the respondent's employees on
September 8, 1933, and received a charter from its parent international
organization on September 28, 1933. By February 1934 the Union
numbered about 40 members, and during that month its committee
approached Gerber to negotiate for an increase in piece rates. Gerber's
immediate response was to conduct an election among the employees
by means of ballots presenting h choice of the Union, a "shop union,"
and an insurance organization. The two candidates other than the
Union had not been heard of prior to this time, so far as the record
shows. The Union received 58 votes and the other candidates 29 and
9, respectively. When the results of the ballot became known, Gerber
refused the wage increase which the Union had requested.
2 Matter of Atlanta Woolen Mills and Local No 2807, United Textile Workers of America , 1 N L R B 316.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Soon after this incident Gerber circulated among the-employees a
petition for the lowering of standards of quality required of the
respondent's product by a code of fair competition adopted pursuant
to the National Industrial Recovery Act. Several employees refused
to sign. Gerber discharged them, then restored all but one Baldwin
to work. Agents of the (old) National Labor Relations Board 3 held
a hearing on Baldwin's discharge in Indianapolis in the summer of
1934, and as a result Baldwin was reinstated. A few days after the
hearing, Gerber assembled the employees and denounced as "disloyal"
those who had testified in behalf of Baldwin.
In the fall of 1934 solicitation of membership in the Club took
place among the respondent's employees. The origin of the Club
does not appear clearly in the record. The Club was connected with
the Benefit Association of Railway Employees, an accident insurance
society organized under the laws of Illinois. A representative of the
insurance society, in the presence of Harper; superintendent, asked
employees to purchase policies of insurance and held out the induce-
ment that the society would discuss grievances with the respondent.
Several supervisors solicited membership for the Club among employ-
ees on the job during the fall and winter of 1934 George Ellis, head
inspector, Machin, secretary of the respondent, and McGuire and
Parsons, foremen, were active in behalf of the organization described
variously as the Club or "this insurance."
On January 11, 1935, the respondent laid off Karl Dresch, financial
secretary of the Union. A further lay-off on January 14 eliminated
Russell Von Cannon, recording secretary, and Verne Phillips, a union
member who had previously refused to join the Club. Soon after this
Gerber called to his office the union shop committee, composed of
Robert Smith, Victor Simmons, and Orville Groves, and after showing
them a chart of the location of the work benches in the shop, where
the benches of Von Cannon, Dresch, and Phillips were marked with
red pins, told the committee that those men were not loyal workers
and would never come back to work. Gerber also said that the lay-
offs in general were due to a change in the casting operation and that
other employees to be laid off would be recalled as soon as the benches
were fixed. A number of lay-offs then followed in the casting depart-
ment during the latter part of January and early in February. Within
the next few days, without having recalled the men previously laid
off, the respondent hired several new employees,-three at least,
according to Robert Smith.
About February 1, 1935, Orville Sargent, then storeroom boss and
later casting-department foreman, circulated a "yellow-dog" contract
or petition among employees on the job and also among employees
who had previously been laid off, promising the latter reinstatement if
3 Established by executive order of the President on June 29, 1934.
KOKOMO SANITARY POTTERY CORPORATION 9
'they would sign.' Sargent then called a meeting in the, shop and
announced that "what was left of the Union," acting as the Ko-San
Club, would hold an election of officers. The union memberspartic-
ipated and succeeded in electing one of their number, Frank Lloyd,
as president of the new organization. The management sent for Lloyd
and a committee appointed by him, but when the union men refused
to enter into a contract proposed by Welsh, the respondent's manager,
he told them to resign, and said, "We want an agreement here of some
kind with you fellows. If anybody don't want to go along with this
agreement with the Ko-San Club, why we want their names so we
can get rid, of them."
The Union took a strike vote on February 8, 1935, and instituted
a strike on February 11. Welsh unsuccessfully solicited Glen
McCarter, a union member, to remain at work, and stated that the
strikers "will never be working in here again."
The plant was shut down for a month, then reopened with a cur=
tailed production, and within 60 days after reopening was running
full force The Union maintained a picket line at the plant until
July 13, 1935, when the line was dispersed through the arrest and con-
viction of pickets in a prosecution subsequently dismissed by the
higher courts of the State.
11,uring this strike, which continued to September 14, 1936, there
were several conferences between representatives of the respondent
and of the Union, attended on several occasions by municipal officials
and also by Board agents, after union representatives had filed
charges alleging that the respondent had engaged in unfair labor
practices.5 The respondent's officials repeatedly refused to consider a
joint application for reinstatement made by the Union, and insisted
that the discharged employees and former strikers make individual
applications, to be dealt with as the respondent saw fit. The evidence
leaves no doubt that the requirement of individual applications so
insisted upon by respondent as a prerequisite to a consideration of the
reinstatement of workers well known to it was wholly without justi-
fication on any business basis, and was imposed for the purpose of
humbling the Union and rendering ineffective the efforts of its repre-
sentatives on behalf of the men. The men finally acceded to the
respondent's condition in substance and .on September 14, 1936, a
settlement agreement was executed.
The agreement was in the form df a letter addressed to "National
Labor Relations Board, Indianapolis, Indiana," containing separate
undertakings on the part of the respondent and the union shop com-
4 We do not credit Sargent's version of this incident so far as inconsistent with the foregoing statement
in the text, his testimony was evasive and improbable as respects his professed ignorance of the origin of the
petition or contract
3 Charges alleging that respondent had engaged in unfair labor practices within the leaping of Section
8 ( 1) and (5) of the Act were filed on October 7, 1935, and February it, 1936.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mittee, the members of which were required by the respondent to sign
ostensibly as individuals rather than in their representative capacity.
By this agreement the respondent's obligation was expressed as
follows:
In consideration of the withdrawal of charges heretofore filed
with the National Labor Relations Board against F. A. Welsh
Manufacturing Company 6 and Kokomo Sanitary Pottery Com-
pany, we hereby agree to reemploy all employees on the list
attached hereto at the positions thereon indicated before anyone
else is employed. The companies agree to notify these men by
registered mail at the address indicated on the list when such a
position is available and to employ them if they report within
three (3) days after the notice is given. If the party notified does
not report or refuses the position another available appointee on
the list will be notified under the same terms and conditions.
After all the men have been thus notified and given opportunity
to work this agreement will expire.
The union committee agreed to the following:
In consideration of the above agreement, we hereby withdraw
the charges filed against the above named corporations, condi-
tioned on their faithful performance of the agreement.
Attached to the agreement was a list containing the names of 52
employees with their addresses and job, classifications. The names
were arranged in alphabetical order under each classification, and
there is no indication on the face of the document as to the order in
which the listed men were to be recalled. Gerber did, however, offer
orally to reinstate first the men who were then out of work, and Von
Cannon, union secretary, accordingly furnished Gerber with a list
showing which men were currently working.
Between September 14, 1936, and March 13, 1937, the respondent
sent letters to no more than 8 of the 42 individuals named in the
complaint, all of whom were on the agreed list. The letters, which
were substantially uniform, did not offer reinstatement uncondition-
ally; they merely invited the addressees to come in and make appli-
cation within 3 days or be considered as having no further interest
in employment by the respondent.
The disposition of the cases of the individuals recalled, so far as
the record shows, is as follows:
Jack Flick was mailed a letter on September 16, 1936. Flick did
not testify and the record does not disclose whether he reported for
work. His name does not appear on any of the pay rolls from Septem-
ber 15, 1936, to March 31, 1937, or on the pay roll for December 5,
1937,-these being all the pay rolls in evidence.
0 A company associated with respondent in a manner not disclosed by the record.
KOKOMO SANITARY POTTERY CORPORATION 11
Thomas Budd received a letter mailed September 23, 1936, and
went to the repsondent's plant to make application. The manage-
ment referred Budd to a physician for an examination, which he
passed. The respondent's officials told Budd it would be 2 or 3
days before his job would be avaliable. When he returned Leo
Williariis, respondent's plant manager, told him that he, Williams,
would let Budd know when to come back again. Budd heard nothing
more from respondent until April 1937,-as will appear below.
Walter Denham also received a letter dated September 23, 1936.
He did not testify, and his name appears on none of the pay rolls
from September 15, 1936, to March 31, 1937; neither does it appear
on the pay roll of December 15, 1937. The record does not disclose
whether he made application in response to the letter.
Gordon Rumfelt was mailed a letter dated October 6, 1936. He did
not testify, and his name appears on none of the subsequent pay rolls
in evidence. The record does not show what response if any Rumfelt
made, or the result if any was made.
Paul Clark received a letter dated November 16, 1936, and re-
ported to apply for work. He was referred to a physician for exam-
ination. Thereafter Leo Williams told Clark that he would not be put
to work because, the physician's report showed that he had defective
vision in one eye. Clark (lid in fact have a bad eye, but his condition
was no worse than it had been during the previous 10 years, in the
course of which he had worked for the respondent a year and a half.
Clark had a conversation with Williams in August 1937, when Williams
told him there was "nothing personal" against him but that he would
be unable to work for the respondent again "under union conditions."
Frank Clem received a letter dated October 1, 1936, and made
application pursuant thereto. After having a physical examination
Clem went to work and continued until February 1937, when he
left in consequence of a dispute with his foreman. Williams assured
Clem he could have a job any time he wished to go back, but Clem
never returned.
Russell Dunlap received a letter from respondent in the fall of 1936
while he was working elsewhere, and he did not make any application.
At a later date he talked to respondent's officials and was offered a
job, but having received an offer from another employer, he went
to work elsewhere.
Charles Moran returned to work after the settlement agreement
was made and left before March 1937. He did not testify at the
hearing, and it does not appear whether he received a notice to report,
neither does it appear whether his separation from the respondent's
employ after his return was voluntary. His foreman testified that
he did poor work after his return.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other than the above-mentioned 8 persons, none of the 42 persons
named in the complaint were recalled to work from the date of the
settlement on September 14, 1936, to March 1937. Of the 10 persons
named on the agreed list but not in the complaint, 3 apparently
returned to work at the respondent's plant during this period and
another was recalled while employed elsewhere and did not return.
The other six who were on the agreed list and are not included in
the complaint do not appear on any of the pay rolls during the period
under discussion, and the record does not disclose whether they were
offered reinstatement.?
Comparison of the September 15, 1936, pay roll-representing the
composition of respondent's personnel as of the date of the settlement
agreement-with succeeding pay rolls up to and including March
15, 1937, shows that, excluding the office force and persons named
in the strike-settlement agreement, 58 names not on the beginning
pay roll appear on one or more subsequent pay rolls. Moreover,
during this period 33 names not among those listed in the settlement
agreement appear on the pay rolls first under one job classification and
later under another; evidently there were that many vacancies which
were filled by transfer. Although the precise extent of the breach
of the agreement cannot be determined from the record for,the reason
that the pay-roll classifications do not coincide with the jobs set after
the names of those listed in the settlement agreement, it is evident,
and we find, that the respondent breached its agreement by passing
over many men listed in the complaint in filling positions which they
should have received under the agreement. -
The following is a tabulation of the number of new names appear-
ing on pay rolls from September 30, 1936, to March 15, 1937, together
with the number of positions filled by transfer during that period,
adopting the classifications used on respondent's pay-roll lists in
evidence, excluding office personnel and disregarding positions filled
by men named in the settlement agreement:
Job classifications New names Transfers Total
Labor ----------------------------------------------------------- 22 16 38
Miscellaneous--------------------------------------------------- 13 2 15
Inspection ----------------------------------------------------- 5 2 7
Kiln 9 7 16
Caster - ------------------------ 6 3 9
Shipping-------------------------------------------------------- 2 3
Mould-- ------------------------------------------------------- 1 0
Maintenance-_ ----------------------------- 0
Power-------------------------------------------------------- 0
Total---------------------------------------------------- 58 33 91
7 One may have been sent a notice, on the basis of von Cannon's statement that the respondent sent 13
letters in all during the 6 months following the settlement
KOKOMO SANITARY POTTERY CORPORATION 13
The following shows the distribution among job' classifications, as
listed in the settlement agreement, of the 34 men who were not re-
called during the period in question, and the 2 men 8 who, after being
were refused reinstatement.recalled ,
Job Classifications: Number of Men
Casters------------------------------------------- 25
Washdowns----------- 15
Tanks---------------- 7
Washdowns-Tanks--- 2
Washdowns-Jets----- 1
25
Hustlers ------------------------------------------ 3
Kiln Shed ---------------------------------------- 2
Sprayer------------------------------------------ 1
Brickmason--------------------------------------- 1
Saggermaker------------ - ------------------------ 1
Warerooms, Packers, etc --_------------------------ 2
Pug Mill, Sagger Shop----------------------------- 1
Total-------------------------------------- 36
It is apparent that the basis of job classification used in the pay-roll
lists is not strictly comparable to that used in the settlement agree-
ment. It is certain, however, that the respondent employed 6 new
men as casters and transferred 3 others to that work, although 25
casters remained available on the agreed list, and- we are convinced,
particularly in view of the large number of persons hired at the
equivocal classifications of "Labor" and "Miscellaneous," that the
other jobs filled during this period also could have been filled by men
named in the agreed list. -
On one occasion after the execution of the agreement of September
14, 1936, and before March 1937, Raymond Alexander, president of
the Kokomo Central Trades and Labor Council, conferred with
Williams, the respondent's plant manager, in an attempt to induce
the respondent to recall men from the preferential list in compliance
with the agreement. Williams told Alexander that certain men on
the preferential list, because of their prominence in the Union, would
never be recalled to work. Among those to whom Williams referred
in this connection were Everett Tucker, then president of the Union,
Russell Von Cannon, recording secretary, Orville Groves, former shop
committeeman, and Harry Turley.
Subsequent to the execution of the settlement agreement, Fisher
Peel, one of those named in the preferential list, was referred to the
respondent by the Indiana State Employment Service, with which the
respondent had placed a "standing order" for potters. Peel reported
to Williams and inquired why he had not been recalled pursuant to
8 Thomas Budd and Paul Clark.
14' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the agreement. Williams said, "Oh, forget about that contract.
Let's talk about something else." He also told Peel that he would be
afraid to put Peel back to work, because "Them guys in there [meaning
the employees then working] would kill you." Williams also said,
"We have a shop committee here now [meaning the Ko-San Club]
what we call the employment committee. Any applications that are
made they have to O. K. them before they are hired into the shop."
In August 1937 Williams told Paul Clark, one of those on the
preferential list, that lie "would be unable to work there under union
conditions."
The members of the Union became convinced that the respondent
was not complying with the strike settlement, and that it was hiring
persons other than those on the agreed list. Accordingly, on March
17, 1937, the Union's shop committee demanded of Gerber and
Williams that the respondent perform its agreement. Williams ad-
mitted having hired at least one new employee in violation of the
agreement . The union representatives asked the respondent's
officials to reinstate 15 men at once . Williams postponed action on
this request. The Union thereupon instituted what it called a strike.
Apparently none of the employees then working ceased to work;
the "strike" was participated in only by persons whose reinstatement
had not been effected pursuant to the settlement agreement. The
only immediate effect of the "strike" was that labor organizations
affiliated with the Union put the respondent's products on their
unfair lists. When the respondent did send out letters notifying
the men on the agreed list to come in and file applications , a number
of them failed to report, as will appear below.
On March 25 the shop committee again conferred with Welsh, who
stated that he would not displace 15 men, and that those on the agreed
list would be required to file individual applications. The Union
thereupon kept its strike in effect.
Beginning at about the time of the negotiations between the respond-
ent and the shop committee in March 1937, and continuing in April
and May 1937, the respondent sent out letters to all the individuals
named in the complaint save Clark, inviting them to come in and file
applications. Two such letters, those to Fowler and Downing, were
delivered several days prior to the calling of the strike of March 17.
The record does not indicate whether Fowler made any response.
Downing reported on or about March 17. Williams and Machin
inquired whether he was a union member or wanted "a committee
in the shop ," meaning the Ko-San Club , to represent him, and when
he expressed a preference for individual bargaining, referred him to
a physician for an examination as a preliminary to reinstating him.
The strike was called on the same day and Downing did not return
KOKOMO SANITARY POTTERY CORPORATION 15
to the plant . Thirty-one men named in the complaint were sent
letters on various dates in March, April, and May, 1937 while the
strike was on; none of, them returned to work prior to the hearing.
At the hearing a number of the men were asked whether they
wished to return to work for the respondent . Several replied gener-
ally in the affirmative, while others attached conditions, such as,
that the Union arrive at a satisfactory agreement with respondent.
The record does not show that the Union has ever called off the strike
which began March 17, 1937. Beginning in November 1938 the
respondent addressed letters to a number of the men, offering them
positions. At the argument before the Board on January 17, 1939,
union representatives stated that those who received such letters
had not accepted the offer owing to the pendency of this proceeding.
B. The employee status of the strikers named in the complaint
The complaint alleges that the respondent engaged in unfair labor
practices within the meaning of Section 8 (1) of the Act since July 5,
1935, and in unfair labor practices within the meaning of Section 8 (2)
since "sometime prior to August 14, 1936," and that the strike which
terminated on September 14, 1936, was caused by such unfair labor
practices . The allegations of the complaint as to the non -reinstate-
ment of employees in violation of Section 8 (3) of the Act relate to
a period subsequent to September 14, 1936, the date of the strike-
settlement agreement . It is alleged that the respondent 's refusal to
reinstate the persons named in the complaint was " contrary to the
respondent 's written agreement."
The strike which ended on September 14, 1936, had its beginning
prior to the effective date of the Act and cannot, therefore, be said to
have been caused by unfair labor practices. Although, as we find
below, the respondent did engage in unfair labor practices within the
meaning of Section 8 ( 1) and (2) of the Act , continuously from July 5,
1935, to and after September 14, 1936, the record does not support a
finding that those practices resulted in prolongation of the strike.
The respondent asserts that the persons named in the complaint
have at no time since the effective date of the Act been its "em-
ployees," with the consequence (so we gather , for the respondent does
not make it explicit) that the respondent has not engaged in dis-
crimination as to them. The respondent 's contention is without
merit. The discrimination of which Section 8 (3) speaks includes
practices directed against persons other than employees, as by dis-
crimination in regard to hire.' In any event, however, the indi-
viduals in question were and are employees. As to those who went
on strike in February 1935, their work ceased as a result of a labor
dispute which was plainly current until September 14, 1936, as evi-
9 ]Clatter of Waumbec Mills , Inc. and United Textile Workers of America , 15 N. L R. B 37.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dented by the pendency of negotiations for settlement.10 Those who
were laid off in January and February 1935 were likewise "employees"
by virtue of their lay-off status until September 14, 1936;11 the re-
spondent never discharged them, despite its failure to comply with
its promise to recall them when the casting shop was made ready.
Moreover these employees also joined the strike which remained
current until September 14, 1936. The status of the persons named
in the complaint as "employees" since September 14, 1936, is further
affirmed by the settlement agreement which described them as em-
ployees and placed them on a preferential list. The strike of March
17, 1937, has not altered the employees' status in this respect. We
find that the persons named in the complaint have been "employees"
of the respondent at all times material hereto.
C. Effect of the settlement agreement ; conclusions regarding
discrimination
• We have shown that the respondent breached its settlement agree-
ment of September 14, 1936, by hiring new employees for positions to
which it had agreed to reinstate persons on the preferential list.12
The Board does not concern itself with the breach of contract as such;
it is concerned solely with whether the breach constituted unfair labor
practices as well.
The strike which ended on September 14, 1936, is not found to have
been caused or prolonged by unfair labor practices. In the circum-
stances the respondent's obligation under the Act was merely to
refrain from discriminating, for reasons of union membership or of
participation in the strike, against any striker who should apply for
reinstatement.
The agreement of September 14, 1936, quite aside from the con-
tractual obligations to which it gave rise, altered the positions of the
parties under the Act. Normally the -respondent's obligation to
accord non-discriminatory consideration to the employment of any
striker would arise only when that striker made application for rein-
10 National Labor Relations Board v Mackay Radio & Telegraph Co , 304 U S 333, 344
It North Whither Heights Citrus Ass'n v National Labor Relations Board, 109 x' (2d) 76 (C C A 9).
.2 No occasion is here presented for the application of our rule that agreements whereby unfair labor
practices are compromised, and in the negotiation of which a Board agent participates, bar consideration
of preceding unfair labor practices Matter of Shenandoah-Dines Mining Company and International Union
of Mine, Mill, and Smelter TVorkers, 11 N L R B 885, Matter of Godchaux Sugars, Ins and Sugar Mill
Workers' Union, Locals Nos 21177 and 8188, affiliated with the American Federation of Labor, 12 N L R B. 568
The allegations of the complaint as to discrimination relate solely to the period subsequent to the execution
of the agreement and are based upon actions allegedly constituting a breach thereof The charges which
the Union withdrew in consideration of the settlement agreement related to alleged unfair labor practices
within the meaning of Section 8 (1) and (5) of the Act which are not here in issue Finally, although we
hereinafter consider unfair labor practices within the meaning of Section 8 (1) and (2) which began prior to
the date of the agreement, such practices continued thereafter and the agreement is no deterrent to our
consideration thereof Matter of Chambers Corporation and Allied Stove Mounters and Stove Processors
International Union, Loral No. 86, 21 N L R B , 808
KOKOMO SANITARY POTTERY CORPORATION 17
statement. But the agreement evidences a continuing application
for reinstatement by the strikers therein listed, and evidences the
respondent's acknowledgement thereof. The respondent assumed
responsibility, for taking the first step toward the resumption of the
normal working relationship and relieved each listed striker of the
necessity of applying for work precisely when work for him was avail-
able. Under these circumstances the repondent would be estopped
from asserting, in excuse for its failure to consider a striker for em-
ployment in an existing vacancy, that the striker in question had not
applied.
We accordingly hold that whenever, between September 14, 1936,
the date of the agreement; and March 17, 1937, the date on which
the Union again resorted to strike, a vacancy occurred at the respond-
ent's plant for which any striker listed in the agreement was eligible,
the respondent was under the same obligation to consider such striker
for-employment as though, at the precise time of the occurrence of
such vacancy, he had personally presented himself to the respondent
as an applicant for reinstatement.
In that period, as we have shown, the respondent sent letters,
purporting to comply with the terms of the agreement, to not more
than 13 of the 52 strikers who were listed therein. Such letters were
sent to 8 of the 42 persons named in the complaint. Although these
letters sent by the respondent in the period in question merely invited
applications for employment 13 and thus fell short of the requirements
of the agreement which contemplated outright offers of employment,
we are of the opinion that they constituted a sufficient first step in the
performance of the respondent's obligation under the Act. Accord-
ingly, we find that the respondent did not discriminatorily refuse to
reinstate Flick, Denham, Rumfelt, or Dunlap, four men listed in the
complaint who were sent letters but who are not shown to have
responded. The complaint as to them will be dismissed.
We similarly find that the respondent did not discriminate in
regard to the hire and tenure of employment of Clem or Moran,, for
it appears that they returned to work for the respondent pursuant to
letters which it sent them. We shall dismiss the complaint as to
them, too.
There remain for consideration the cases of 36 men named in the
complaint, 34 of whom, during the period in question, were not re-
called, and 2, Budd and Clark, who presented themselves for work
pursuant to notice but failed of reinstatement.
As to the 34 men who were not recalled, the record compels the
conclusion that the respondent, despite its agreement to accord them
13 The text of a typical letter is as follows
You may arrange to call at our employment office and make application for a position. Your
failure to adhere to this within thiee days will indicate to us that you are no longer interested in
employment in our company.
Is DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preference in reinstatement, failed to consider them for employment
in suitable jobs, and that it did so solely because it was opposed to
employing the listed strikers, as a class. It will be recalled that during
the period under consideration the respondent filled 58 positions with
new employees and transferred 33 individuals from one position to
another while inviting not more than 13 of the 52 men on the preferen-
tial list to apply for work. Ignoring 25 men classified as casters on
the preferential list, the respondent maintained a "standing order"
for casters with an employment agency, hired 6 new men as casters,
and transferred 3 other employees to the work of casters. The re-
spondent's consistent and long-continued hostility toward the Union
provides the only plausible motive for its behavior. Our belief that
that motive underlay the respondent's actions is confirmed by the
statement of Plant Manager Williams to Raymond Alexander that
certain men on the preferential list would not be recalled because of
their prominence in the Union, and by his remarks to Fisher Peel and
Paul Clark.
Had the respondent, though breaching its agreement to grant
preferential reinstatement, measured these men for reinstatement
along with others upon some non-discriminatory basis, it may be that
not all of them would have secured employment. Nothing in the
record, however, rebuts the presumption that these men were excluded
from consideration solely because of their membership in the Union
and their participation in its strike. The respondent's discrimina-
tion against them as a class renders it impossible for the Board to
determine which of the men, if any, would have failed of reinstatement
had they been ordinary laid-off employees and not former strikers.
The respondent has failed, moreover, to "disentangle the consequences
for which it was responsible from those for which it was immune 7 j¢
We find that the respondent discriminated against all 34 men whom
it failed to recall between September 14, 1936, and March 17, 1937.
The case of Thomas Budd, who received an invitation to apply for
work and who presented himself in response thereto but whose appli-
cation was held without action until the Union again resorted to strike,
requires a similar finding. The treatment which the respondent
accorded the strikers as a class, together with the fact that no explana-
tion is given why Budd was denied work, convinces us, and we find,
that the respondent refused to reinstate Budd because he had been a
striker.
We accordingly find that the respondent, between September 14,
1936, and March 17, 1937, denied consideration to the continuing
application for reinstatement of its 35 employees listed in Appendix
"A" hereto, and refused to reinstate said employees, because of their
14 National Labor Relations Board v . Remington Rand , Inc , 94 F (2d) 862 (C. C. A. 2), cert denied 304
U S 576 See also Matter of Ford Motor Company and United Automobile Workers of America, Local No,
325, 23 N. L R B 342.
KOKOMO SANITARY POTTERY CORPORATION 19
membership in and activities on behalf of the Union, and that the
respondent thereby discouraged membership in the Union, discrimi-
nated in regard to the hire and tenure of employment of said employees,
and interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
Paul Clark was invited to make application for employment but
was refused reinstatement on the pretext that he was physically unfit,
although his condition at the time of his application for reinstatement
(shortly after November 16, 1936) was the same as it had been while
he was working for the respondent. In the light of the entire record,
and of Williams' remark to Clark in 1937 that the latter would be
unable to work for the respondent again "under union conditions,"
we find that the respondent, on or about November 16, 1936, refused
to reinstate Clark because he was a member of the Union and had
participated in its strike, and that the respondent thereby discour-
aged membership in the Union, discriminated in regard to Clark's
hire and tenure of employment, and interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
We find, further, that the union's strike of March 17, 1937, was
provoked by the respondent's unfair labor practices and was still in
progress at the time of the close of the hearing.
D. The Ko-San Club
We have referred briefly to the Ko-San Club in our account of
the sequence of events. It clearly appears that the Club was intro-
duced among the employees by the respondent through the instru-
mentality of the Benefit Association of Railway Employees. The
respondent utilized the Club to frustrate self-organization of its
employees and through it secured a contract, tending to perpetuate
such restraint. The respondent also instituted a check-off system
whereby it deducted from employees' wages sums representing both
insurance premiums and dues for the Ko-San Club (or Welfare Club,
as it appears on the standard insurance pay-roll deduction authoriza-
tion). The Club received financial contributions from the respondent
for carrying on social activities. The general membership of the
Club has met rarely and irregularly; committee meetings have usually
been held in respondent's plant. The . Club commonly posted its
notices on the respondent's bulletin board. On one occasion sub-
sequent to September 14, 1936, Plant Manager Williams asserted
that the respondent had delegated to a Club committee the power of
passing on applications for employment.l5
Although the formation of the Club preceded the effective date
of the Act, its continued existence since that date constitutes a restraint
15 Cf. National Labor Relations Board v. Sunshine Mining Co , 110 F. (2d) 780 (C. C. A. 9).
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon self-organization of the respondent's employees; 16 in any event
the respondent's continued domination of the Club by overt acts since
the adoption of the Act clearly appears. We find that the respondent
has dominated and interfered with the administration of the Glub and
contributed financial and other support to it, and thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and with foreign countries, and tend to lead and have led to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom. In order to
effectuate the policies of the Act and as a means of removing and
avoiding the consequences of the respondent's unfair labor practices,
it is essential that in aid of our cease and desist order the respondent
be directed to take certain affirmative action, more particularly de-
scribed below.
We have-found that the respondent has dominated and interfered
with the administration of the Ko-San Club and has contributed sup-
port to it. In order to effectuate the policies of the Act we shall
order the respondent to withdraw all recognition from the Club as a
epresentative of any of its employees for the purpose of dealing with
rt concerning grievances, labor disputes, wages, rates of pay, hours of
employment, and conditions of work, and completely to disestablish
the Club as such representative. The policies of accident insurance
with which the Club is in some manner associated appear to be
individual contracts between the insurer and the employees, so that
the connection of the Club therewith is not essential to the main-
tenance of the insurance in force. Our order will not affect such in-
surance contracts if the assured wish to continue the same in force,
provided always that the granting of such insurance be not em
ployed by respondent as a device for contributing support to the
Ko-San Club or any other labor organization.17
We have found that the respondent has checked off its employees'
wages sums of money designated as "regular monthly dues [payable
16 National Labor Relations Board v Newport News Shipbuilding and Dry Dock Co , 308 U S 241.
'7 Matter of Titan Metal Mfg. Co. and Federal Labor Union No 19981, 5 N L R B 577, 594, Matter of
Utah Copper Company , a corporation , and International Unios of Mine, Mall, and Smelter Workers, Local
No 892, 7 N L R. B 928, 944-5
KOKOMO SANITARY POTTERY CORPORATION 21
to the Ko-San Club] (including insurance premium)." The check-off
apparently amounted to $1.00 monthly, and there was no division
of this sum between the two items of insurance premium and dues.
Our practice is to require the_ repayment of moneys checked off for
the benefit of an employer-dominated labor organization.'8 We see
no reason to depart from that policy in this case merely because the
sums checked off here may represent, to an indefinite extent, the
consideration for insurance protection which would of course be
lawful were it not linked with the Ko-San Club.- The respondent
caused the commingling of insurance premiums with moneys going
to the support of an organization maintained by unfair labor prac-
tices, and will be required to repay the whole sum which has accrued
since July 5, 1935.
Having found that the respondent engaged in unfair labor practices
within the meaning of Section 8 (3) of the Act by discriminating in
regard to the hire and tenure of employment of 36 employees, in that
it failed to consider them for vacancies and refused to reinstate them
subsequent to September 14, 1936, in disregard of their continuing
application for reinstatement, we shall order the respondent to rein-
state the employees in question and to make them whole for any loss
of pay they may have suffered by reason of the respondent's dis-
crimination against them.
Paul Clark was invited by respondent to apply for reinstatement
on November 16, 1936, but upon application he was wrongfully
denied reinstatement. He has never received any further offer from
respondent. Although the Union went on strike after Clark was
refused reinstatement, we cannot presume in the absnce of an offer
to him that he would have refused an offer.19 We shall direct the
respondent to offer Clark reinstatement and to make him whole
for any loss of pay he may have suffered by reason of the respondent's
refusal to reinstate him by payment to him of a sum of money equal
to that which he would normally have earned as wages from Novem-
ber 16, 1936, to the date of such offer of reinstatement, less his net
earnings 20 during that period.
is Matter of the Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths,
Drop Forgers, and Helpers, 7 N L R B 646, Matter of Lone Star Bag and Bagging Company and Textile
Workers Organizing Committee, 8 N L R B 244, Matter of West Kentucky Coal Company and United Mine
Workers of America, District No 23, 10 N L R B 88
ii Cf Matter of Lindeman Power and Equipment Co and International Association of Machinists, 11 N L.
R B 868.
20 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 his unlawful discharge and the consequent necessity of his seeking
work elsewheie See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, local 2590, 8 N L. R. B 440. Monies received for work
performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earn-
ings, but as provided below in the Ordei, shall be deducted from the sum due the employee, and the amount
thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-relief projects Republic Steel Corpora-
tion v National Labor Relations Board (C C A 3)107F (2d) 472, cert granted 309 U S 684
323429-42-vol 26-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 23, 1936, the respondent invited Thomas Budd to
apply for reinstatement, but when Budd applied the respondent put
him off and made no further offer until April 23, 1937, when the Union
was on strike. Budd did not respond to the last-mentioned notice or
to another notice dated December 7, 1938, while the Union was still
on strike. On April 23, 1937, when Budd failed to respond to the
second notice, he assumed the status of a striker, and we shall treat
him in the same manner as the other strikers as regards reinstatement
and back pay.
None of the 34 other men named in the complaint was offered
reinstatement between September 14, 1936, and March 1937. We
have found that the respondent discriminated against them as a class
by filling vacancies with other persons during that period. All 34
failed to respond to notices sent in March 1937 and thereafter, and
each assumed the status of striker upon receipt of his first notice to
report.
Appendix A hereto lists the names of Thomas Budd and the 34 men
who were not recalled between September 1936 and March 1937.
The respondent will be required to, offer them, upon application,
immediate and full reinstatement to their former positions with the
respondent , dismissing , if necessary , all persons hired after September
14, 1936. We shall order the respondent to make such employees
whole for any loss of pay suffered by them by reason of the respondent's
unfair labor practices , by paying to each of them a sum of money equal
to that which he would normally have received as wages, but for the
respondent's discrimination, between September 14, 1936, and the
date when he went on strike (such date as to each employee being
set after his name in Appendix A) less his net earnings during said
period. In accordance with our usual practice in cases involving
strikers who went on strike as the result of unfair labor practices, our
order will further provide that each of the employees listed in Appendix
A whom the respondent refuses, on application, to offer reinstatement
pursuant to our Order, shall be entitled to payment of a sum of money
equal to that which he would normally have received as-wages during
the period from 5 days after such refusal to the date of the respondent's
offer of reinstatement.
We shall dismiss the complaint as respects the allegations concerning
Jack Flick, Walter Denham, Gordon Rumfelt, Frank Clem, Russell
Dunlap, and Charles Moran, who either returned to work between
September 14, 1936, and March 1937, or received notices to apply for
reinstatement during that period and failed to respond.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
KOKOMO SANITARY POTTERY CORPORATION 23
CONCLUSIONS OF LAW
1. National Brotherhood of Operative Potters, Local No. 26, and
Ko-San Club are labor organizations within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Ko-San Club, and contributing support thereto, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of Paul Clark
and of the employees listed in Appendix A, and thereby discouraging
membership in National Brotherhood of Operative Potters, Local
No. 26, and encouraging membership in Ko-San Club, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
4. 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.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act
6 The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act by refusing to reinstate Jack
Flick, Walter Denham, Gordon Rumfelt, Frank Clem, Russell Dun-
lap, or Charles Moran.
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
Kokomo Sanitary Pottery Corporation, and its officers, agents, suc-
cessors, and assigns shall:
1 Cease and desist from:
(a) Discouraging membership in National Brotherhood of Operative
Potters, Local No. 26, or any other labor organization of its employees,
and encouraging membership in the Ko-San Club, or any other labor
organization of its employees, by refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to hire and
tenure of employment or any term or condition of employment;
(b) Dominating or interfering with the administration of Ko-San
Club or with the formation and administration of any other labor
organization of its employees and from contributing support to said
Ko-San Club or to any other labor organization of its employees;
(c) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form, join,
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion as guaranteed-in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action which the Board finds wil
effectuate the policies of the Act:
(a) Upon application offer to the employees listed in Appendix A
hereto annexed, who have not been fully reinstated, immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
dismissing, if necessary, all persons hired after September 14, 1936;
(b) Offer to Paul Clark immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(c) Make whole the employees listed in Appendix A for any loss of
pay they may have suffered by reason of the respondent's discrimina-
tion, by payment to each of them of a sum of money equal to that
which he would normally have earned as wages during the period from
September 14, 1936, to the date when he went on strike (such date
being set after the name of each employee listed in'Appendix A), and
during the period from five (5) days after the respondent's refusal of
his application for reinstatement pursuant to the terms of this Order
to the date of the respondent's offer of reinstatement, less his net earn-
ings during said periods; provided, however, that the respondent shall
deduct from the amount otherwise due to each of the said employees,
monies received by said employee during said periods for work
performed upon Federal, State, county, municipal, or other work-
relief projects, and pay over the amount so deducted to the appro-
priate fiscal agency of the Federal, State, county, municipal, or other
government or governments which supplied the funds for said work-
relief projects;
(d) Make whole Paul Clark for any loss of pay he may have suf-
fered by reason of the respondent's refusal to reinstate him on No-
vember 16, 1936, by payment to him of a sum of money equal to that
which he would normally have earned as wages during the period from
November 16, 1936, to the date of the respondent's offer of reinstate-
ment pursuant to the terms of this Order, less his net earnings during
such period; provided, however, that the respondent shall deduct
from the amount otherwise due Clark, monies received by him during
said period for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount so deducted to
the appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for said
work-relief ,projects;
KOKOMO SANITARY POTTERY CORPORATION 25
(e) Withdraw all recognition from Ko-San Club as the representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, rates of pay, wages, hours of
employment, of other conditions of employment, and completely
disestablish it as such represetntative;
(f) Reimburse individually, and in full, all its employees for all
clues and assessments, if any, which it has deducted from their wages
on behalf of the Ko-San Club;
(g) Post immediately in conspicuous places throughout its plant 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 respond-
ent will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a), (b), and (c); (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a), (b),
(c), (d), (e), and (f) of this Order; (3) that the respondent's employees
are free to join and remain members of National Brotherhood of
Operative Potters, Local No. 26, and that the respondent will not
discriminate against any employee because of membership or activity
in said labor organization;
(h) Notify the Regional Director for the Eleventh Region in, writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent has discriminated in regard to the hire and
tenure of employment of Jack Flick, Walter Denham, Gordon Rum-
felt, Frank Clem, Russell Dunlap, and Charles Moran, be and it hereby
is, dismissed.
APPENDIX A
Charles E. Brown January 7, 1939
Thomas Budd April 23, 1937
James Coe April 28, 1937
Clem V. Dlllman April 7, 1937
Raymond Downing March 16, 1937
Karl Dresch April 16, 1937
Ellis Fowler May 13, 1937
William Glover April, 20, 1937
Orville Groves April 1, 1937
James Groves April 17, 1937
Fred Hale December 7, 1938
Harley Isaacs April 26, 1937
R. V. Jackson April 28, 1937
Ewing Karnes April 29, 1937
Frank Lloyd March 29, 1937
Glen McCarter May 8, 1937
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Levi McCarter May 13, 1937
Paul Otiker April 29, 1937
Dave Partlow April 7, 1937
Fisher Peel April 28, 1937
Verne D. Phillips April 27, 1937
Paul Randall March 17, 1937
Orville Rioth May 8, 1937
Thomas Shufebotham April 12, 1937
Dennis Simmons April 1, 1937
James Simmons April 16, 1937
Victor Simmons March 29, 1937
Robert Smith April 26, 1937
Leslie B. Thompson April 3, 1937
Everett Tucker April 29, 1937
Harry Turley April 3, 1937
Russell Von Cannon April 26, 1937
Lon Waggoner May 13, 1937
John Watson May 3, 1937
Floyd Wilson April 20, 1937
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.