McKaig-Hatch, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1938

10 N.L.R.B. 33 (N.L.R.B. 1938)

In the Matter of MCK IG-HATCH , INC. and AMALGAMATED ASSOCIA-
TION OF IRON, STEEL , AND TIN WORKERS OF NORTH AMERICA, LOCAL
No. 1139
In the Matter of MCIiAIG -HATCH , INC. and AMALGAMATED Asso-
CIATION OF IRON, STEEL , AND TIN WORKERS OF NORTH AMERICA,
LOCAL No. 1139
Oases Nos. C-350 and R-651, respectively.-Decided December °L,
Steel Products Manufactuiing Industry-Interference, Restraint, and Co-
ercion-Unit Appropriate for Collective Bargaining: production and mainte-
nance employees, exclusive of tool and die workers and supervisory employees-
Representatives: proof of choice: membership in union-Collective Bargaining;
Granting Recognition for Members Only. meeting with union representatives
and negotiating with them for union members only, but refusing to recognize
the union as exclusive representative, although it represents a majority, does
not satisfy requirements of Act ; no requests from other organizations for the
right to exclusive representation until after refusal of such right to the union-
Company-Dominated Union: active participation and solicitation of members
by supervisory employees ; decepti e and coercive tactics in solicitation of mem-
bers; no participation by membership in collective bargaining activities until
contract signed ; disestablished, as agency for collective bargaining-Contract:
a nullity, since made with company-dominated union ; employer ordered to
cease giving effect to-Strike: employer's unfair labor practices one of prin-
cipal causes of-Strike Settlement: arrived at by parties while charges pend-
ing with Board, does not preclude Board from taking further action when not
participated in by Board representative--Discrirniation ; Refusal to Reinstate
Striking Employees on Appl cation: employer's failure to displace employees
hired after commencement of strike upon application of striking employees
at end of strike for reinstatement, for no reason other than refusal to dis-
place, discrimination against said striking employees in favor of strikebreakers
and employees hired after end of strike ; charges of, dismissed as to nine
employees whose reinstatement was made pursuant to strike settlement and
was acquiesced in by union ; dismissed as to eight employees laid off before
the strike and as to whom no evidence of discrimination introduced-Rein-
statement Ordered; Positions for which "Qualified": strikers, to former or
substantially equivalent positions or, if such positions not available, to other
positions for which they may be qualified, discharging, if necessary, persons
hired after commencement of strike-Preferential List for Those not Reinstated
or ivho Receive Positions for which "Qualified": those for whom no employment
immediately available, and those reinstated not to former or substantially
equivalent positions but to positions for which qualified, placed on preferential
list to be followed in future reinstatement to former or substantially equivalent
positions-Back Pay; Awarded, where Uncertainty as to Recipient and Time:
impossible to determine which of the strikers not reinstated would have been
reinstated, and as of what date; awarded to each of the strikers refused re-
10 N. L. R. B., No. 4.
33
34 NATIONAL LABOR RELATIONS BOARD
instatement in an amount equal to that which he would have earned had he
been reinstated after application upon a discharge of strikebreakers and certain
others; Back Pay as Remedy in Part for Unfair Labor Practices Concerning
Strike: back pay to remedy unfair labor practices which induced strike and,
independent thereof, on account of refusal of application for reinstatement--
Investigation of Representatives : petition for, dismissed , in view of order to
employer to bargain.
Mr. Edward D. Flaherty and Mr. Peter J. Crotty, for the Board.
Mr. W. J. Evans, of Buffalo, N. Y., for the respondent.
Mr. Ernest D. Baumann, of Buffalo, N. Y., and Mr. Anthony W.
Smith, of Washington, D. C., for the Amalgamated.
Mr. Walter J. Mahoney, of Buffalo, N. Y., for the Association.
Mr. A. George Koplow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Amalgamated
Association of Iron, Steel, and Tin Workers of North America, Local
No. 1139, herein called the Amalgamated, the National Labor Rela-
tions Board, herein called the Board, by Henry J. Winters, Regional
Director for the Third Region (Buffalo, New York), issued a com-
plaint dated November 18, 1937, against McKaig-Hatch, Inc., Buffalo,
New York, 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), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. A copy of the complaint, accom-
panied by notice of hearing, was duly served upon the respondent
and upon the Amalgamated. On November 24, 1937, the respondent
filed its answer to the complaint. On December 1, 1937, upon a sec-
ond amended charge duly filed by the Amalgamated, the Board
issued an amended complaint setting forth substantially the same
allegations as those made in the original complaint. A copy of the
amended complaint and notice of hearing thereon were duly served
upon the respondent and upon the Amalgamated. Pursuant to
motion of the respondent made during the hearing, the answer -of
the respondent was permitted to stand as an answer to the amended
complaint.
The amended complaint alleged in substance: (a) that on or about
August 1, 1937, and on various dates thereafter, the respondent re-
fused to bargain collectively with the Amalgamated as the exclusive
representative of all of the respondent's production and maintenance
DECISIONS AND ORDERS 35
employees , although the Amalgamated had been designated by a
majority of said employees as their representative for the purpose
of collective bargaining and said employees constituted a unit appro-
priate for such purpose ; ( b) that on September 27, 1937, and at all
times thereafter, the respondent refused to reemploy and reinstate
48 named employees , although requested so to do, and by such
refusal terminated their employment , for the reason that said em-
ployees and each of them had joined and assisted the Amalgamated
and had engaged in concerted activities for their mutual aid and
protection, the respondent thereby discriminating in regard to the
hire and tenure of employment of these persons and discouraging
membership in the Amalgamated; (c) that the respondent, by its
agents, fostered , encouraged , dominated , and interfered with the
formation and administration of a labor organization of its em-
ployees known as McKaig & Hatch Athletic and Welfare Ass'n.,l
and contributed support thereto; and (d ) that, by virtue of the
foregoing acts and refusals to act, the respondent interfered with, re-
strained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The answer of the respondent denied the material averments of
the amended complaint . It alleged affirmatively that on or about
August 1, 1937 , and on various dates thereafter , the Amalgamated
requested the respondent to bargain with that organization as the
exclusive representative of all of the respondent 's production and
maintenance employees; that the respondent did bargain but refused
to "agree and concede" that the Amalgamated should have exclusive
bargaining power, for the 'reason that "other groups and labor
unions" of its employees claimed similar rights and the matter of
who represented a majority was not determined . The answer alleged
that on September 2, 1937 , 68 of the respondent 's employees went on
strike and refused to return to work, that some of them later requested
reemployment and were hired, that others who made similar request
were not reemployed because of curtailed production . The answer
further alleged that the Association claimed and claims to represent
a majority of the respondent 's employees , has demanded exclusive
collective bargaining rights, and that the respondent has bargained
and made contracts with it in respect to its members.
On September 20, 1937, the Amalgamated filed with the Regional
Director for the Third Region a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of the respondent , and requesting an investigation and certifi-
cation of representatives pursuant to Section 9 (c) of the . Act. On
1 This organization is referred to in the records as McKaig-Hatch Welfare and Athletic
Association , and by various other designations . Reference will generally be made to it
hereinafter as the Association
36 NATIONAL LABOR RELATIONS BOARD
November 20, 1937, the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, Article II, Section 37 (b), and
Article III, Section 10 (c) (2), of National Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice, and further ordered that
for the purposes of hearing the two cases be consolidated and that
one record of the hearing be made.
On November 24, 1937, the Regional Director issued a notice and
amended notice of a hearing to be held at Buffalo, New York, on
December 2, 1937, copies of which were duly served upon the respond-
ent, upon the Amalgamated, and upon the Association. A copy of
the amended complaint was duly served upon the Association. Pur-
suant to notice, a hearing on the amended complaint and petition was
held in Buffalo, New York, on December 2, 3, 6, 7, 8, 9, and 10, 1937,
before C. W. Whittemore, the Trial Examiner duly designated by
the Board. At the commencement of the hearing, the Trial Exam-
iner, upon motion of the Association, granted leave to the Association
to intervene with the reservation, however, that it confine itself, in
the introduction of testimony, to matters relating solely to the Associa-
tion. Leave was also granted the Association to file an answer, which
it did, denying the material allegations of the amended complaint.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties, subject, in the case of the Association, to the reservation
noted.
During the hearing, the respondent and the Association made va-
rious motions that the complaint and the petition for investigation
and certification be dismissed. Ruling on these motions was reserved
by the Trial Examiner, and the motions were later denied in his
Intermediate Report. A motion by counsel for the Association to
adjourn the hearing from December 6 until December 8, 1937, in order
that he might attend a certain Joint Legislative Commission hearing
on December 7, also was denied. The Trial Examiner made numer-
ous other rulings on motions and on objections to the admission of
evidence. The Board has reviewed the foregoing rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On December 31, 1937, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served on all parties, finding 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, and recommending
that the respondent cease and desist therefrom and take certain affirm-
ative action to remedy the situation brought about by the unfair labor
DECISIONS AND ORDERS 37
practices. The Trial Examiner further found that the allegations of
the amended complaint with respect to Section 8 (2) of the Act
should be dismissed for insufficient proof. The respondent and the
Association each filed exceptions to the Intermediate Report, and the
respondent submitted a brief in support of its exceptions. On June
15, 1938, due notice was given each of the parties of a hearing to be
held before the Board in Washington, D. C., for the purpose of oral
argument on the exceptions to the Intermediate Report, and on the
record, including the charge of unfair labor practice under Section 8
(2) of the Act. Pursuant to said notice, such hearing was held before
the Board on July 7, 1938. The respondent, the Amalgamated, and
the Association each were represented by counsel and participated
in said oral argument. The respondent submitted a supplemental
brief relating to the charge of unfair labor practice under Section 8
(2) of the Act. The Board has considered the exceptions to the
Intermediate Report, and, in so far as they are inconsistent with the
findings, conclusions, and order set forth, below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, McKaig-Hatch, Inc., is a New York corporation,
having its office and plant in Buffalo, New York. It is engaged in
the manufacture and sale of carburetor parts, brake parts, tools and
other drop forgings. Its products are manufactured almost entirely
on special order. The respondent employs at its plant approximately
200 to 250 persons during times of normal business operations and
has salesmen throughout the country whom it pays on a commission
basis.
Purchases of steel, the principal raw material used by the respond-
ent, amounted to $173,411 in 1934, $264,000 in 1935, $286,000 in 1936
and $227,684 from January 1 to October 1, 1937. In 1934, 62 per cent
of the raw materials, chiefly steel, were shipped to the plant from
outside the State of New York; in 1935, 56 per cent came from out-
side the State; in 1936, 56 per cent; and from January 1 to October 1,
1937, 76 per cent. The finished products of the respondent from Octo-
ber 1, 1936, to October 1, 1937, aggregated in value $845,000, of which
68.4 per cent were shipped to destinations in Detroit, Michigan, and
South Bend, Indiana.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Local No. 1139, is a labor organization affiliated with
147841-39-vol 10-4
38 NATIONAL LABOR RELATIONS BOARD
the Committee for Industrial Organization , admitting to membership
all production and maintenance employees of the respondent except
supervisory employees.
McKaig & Hatch Athletic and Welfare Assn. is a labor oganiza-
tion admitting to membership all employees of the respondent except
company officials and persons having the right to hire or discharge.
III. TIIE UNFAIR LABOR PRACTICES
A. Backgrowrul
Prior to December 1936 the production and maintenance employees
of the respondent never had been organized for purposes of collective
bargaining . On December 19, 1936, organizational activities were
begun among them by Steel Workers Organizing Committee, an affili-
ate of the Committee for Industrial Organization. Large numbers
of the employees indicated their desire and willingness to form a
labor organization , and on December 27, 1936, the Amalgamated As-
sociation of Iron, Steel , and Tin Workers of North America issued
a charter to them as Local No. 1139.
On or about February 12, 1937 , before any request had been made
by the Amalgamated of the respondent concerning wages, hours of
work, or conditions of employment , Kempf, the general manager of
the respondent, shut down the plant, locked out the employees, and
stationed police about the premises . The following day, under these
circumstances , the respondent met with the Amalgamated to nego-
tiate a contract relating to terms and conditions of employment. An
agreement was reached and the employees returned to work. The
contract by its terms did not recognize the Amalgamated as exclusive
bargaining representative of the production and maintenance em-
ployees, and it was understood by the parties that the organization
had signed for its members only. The contract provided that it was
to terminate August 14, 1937, unless renewed by mutual consent of
the parties.
B. The refusal to bargain collectively
1. The appropriate unit
The amended complaint alleged, and the respondent and the Asso-
ciation by their answers admitted , that "the production and mainte-
nance employees of the respondent constitute a unit appropriate for
the purposes of collective bargaining . . ." The respondent and the
Association likewise were agreed at the hearing that some 20 or 21
tool and die workers employed by the respondent properly were
excluded from such unit . We see no reason for not acquiescing in the
unit so agreed upon. We are of the opinion that the production and
DECISIONS AND ORDERS 39
maintenance employees constitute a unit appropriate for collective
bargaining. We are also of the opinion that the tool and die work-
ers, in view of the nature of their work, the fact that they have bar-
gained in the past independently of the production and maintenance
employees, and the absence of any showing that they no longer wish
so to bargain independently, may be excluded from the unit here
found appropriate. We will also exclude supervisory employees in
accordance with our usual practice. None of the parties disputes such
exclusion.
We find that the production and maintenance employees of the
respondent, exclusive of tool and die workers and supervisory em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining, and that said unit insures and will insure to the em-
ployees the full benefit of their right to self-organization and to col-
lective bargaining, and otherwise will effectuate the policies of the
Act.
2. The representation by the Amalgamated of a majority in the
appropriate unit
There were introduced in evidence 265 signed membership cards of
the Amalgamated, each bearing a different name and dated some time
before August 1937. At the hearing the respondent checked the
names on the cards against its pay-roll records for 1937 and found
that all the names, except three, were listed on these records. The
respondent also compared the signatures on many of the cards with
authentic signatures on documents in its possession and found none
which was not genuine. While the respondent at the hearing objected
on certain grounds to the introduction of the cards as proof of mem-
bership in the Amalgamated, the respondent did not question the gen-
uineness of the signatures or that the signatures, with the exception
of the three noted, were those of its employees. Prior to and at the
time of the hearing, no resignation from or suspension by the Amal-
gamated of any member whose name appeared on the cards had oc-
curred. We find that the names on the membership cards of the
Amalgamated, in evidence, are the names of its members who were
employed by the respondent during 1937.
. On August 7, 1937, the Amalgamated, as hereinafter set forth, re-
quested the respondent to bargain collectively with it as the-repre-
sentative of the respondent's production and maintenance employees.
On that date there were 175 of such employees.2 On or before
August 7, 1937, 14 of these employees who were members of the
Amalgamated joined the Association. A comparison of the names
2 Testimony in the record places the number at 179, but a check of the pay roll reveals
180 such persons listed, of whom five were supervisors , leaving an actual count of 15
production and maintenance employees,
40 NATIONAL LABOR RELATIONS BOARD
of the production and maintenance workers in the employ of the
respondent on August 7, 1937, as those names appear on the re-
spondent's pay roll for that date, with the names on the membership
cards of the Amalgamated, in evidence, excluding the names of those
who previously had joined the Association, establishes that, of the
175 production and maintenance workers employed by the respondent
on August 7, 1937, 113 were then members of the Amalgamated. By
their membership these employees had designated the Amalgamated
as their representative for collective bargaining."
During August 1937 the Association carried on a membership
drive, more particularly discussed below, and by the end of August
succeeded in securing as members a number, although not a majority,
of the production and maintenance workers then employed at the
plant. However, in view of our finding hereinafter made that the
respondent, itself, dominated and interfered with the formation and
administration of the Association, that the respondent by its agents
fostered and encouraged membership in the Association, we consider
irrelevant. any defection in the ranks of the Amalgamated which may
have occurred subsequent to August 7 through its members joining
the Association. As we have had occasion to state with respect to a
similar situation :
The unfair labor practices of the respondent cannot operate
to change the bargaining representative previously selected by
the untrammeled will of the majority.4
We find that on August 7, 1937, and at all times thereafter, the
Amalgamated was the duly designated representative of the majority
of the employees in the appropriate unit for purposes of collective
bargaining, and that pursuant to Section 9 (a) of the Act was the
exclusive representative of all the employees in such unit for pur-
poses of collective bargaining.
3. The refusal to bargain collectively with the Amalgamated
As stated above, the contract of the respondent with the Amalgam-
ated was to terminate by its own terms on August 14, 1937, unless
renewed by the parties. On August 7 -representatives of the Amal-
gamated met with Evans, the respondent's vice president and secre-
tary, who was also its attorney, asked that the respondent negotiate
with them in respect to wages, hours of work, and other conditions
of employment, and submitted proposals in general looking toward a
renewal of the contract. The representatives requested that the re-
8Matter of Trenton -Philadelphia Coach Company and Amalgani.ated Association of Street,
Electric Railway and Motor Coach Employees of America, 6 N. L Y, B 112.
1Matter of Bradford Dyeing A ssociation (U. S. A ) (a Corporation ) and Textile workers'
Organizing Committee of the C 1 0., 4 N. L. R. B. 604.
DECISIONS AND ORDERS 41
spondent bargain collectively with them as the exclusive representa-
tives of all the production and maintenance employees at the plant.
Negotiations between the representatives of the Amalgamated and
the respondent took place on several occasions throughout August,
and some terms were agreed upon. At all times, however, the re-
spondent steadfastly refused to recognize the Amalgamated as the
exclusive bargaining representative of all its production and main-
tenance employees. Thus, on August 20, in a letter making counter-
offers to proposals of the Amalgamated, the respondent stated :
First: There can be no consent to a closed shop or check-off
system but we agree to recognize your association and agree to
bargain collectively with it in behalf of those of our emnplo?ees
who are members of such association. [Italics ours.]
This refusal of the respondent to recognize or bargain with the
Amalgamated as the exclusive representative of its production and
maintenance employees constituted the principal reason for the
break-down of the negotiations. Evans stated at the hearing that
the "reason I wasn't getting anywhere with my negotiations with
the union, [was] because the union maintained that they were en-
titled to exclusive bargaining rights . . . As I told the union, I
would bargain with them so far as the members of their association
were concerned . . ." At the hearing the following colloquy oc-
curred upon a cross-examination of Szuminski, president of the
Amalgamated :
Q. [Evans.] One of the big problems getting together on was
the question of exclusive bargaining rights, wasn't it?
A. Yes.
Q. [Evans.] And there came a time . .. in which I agreed
that we would bargain with the local in so far as its members
were concerned ?
A. Yes.
The Amalgamated, despite continual insistence on its position,
never succeeded in securing recognition for itself as representative
of all the production and maintenance employees.
The respondent contends in this proceeding thatothe reason it
refused to grant the Amalgamated exclusive bargaining rights was
that "other groups and labor unions of employees in respondent's
plant claimed similar rights 'and• privileges- to bargain with respond-
ent and that, therefore, this respondent could and would negotiate
and bargain with each group or union only as to the members thereof
until it was determined which group or union represented the ma-
jority of respondent's employees." The record, however, fails to
show that prior to August 30 any other labor group or labor organi-
zation had sought to deal with the respondent on behalf of any or
42 NATIONAL LABOR RELATIONS BOARD
all of the production and maintenance employees or that any of these
employees had themselves sought to bargain with the respondent.
The respondent was first officially notified of the existence of the
Association, as stated below, at the very end of August, after the Amal-
gamated's requests and continued insistence that the respondent
bargain with it as the exclusive bargaining agency had proved futile.
Prior to September, the Association was in its formative stages. Nor
does the record indicate that the respondent ever informed the
Amalgamated in August that it had any doubts as to whether the
Amalgamated then represented a majority of the production and
maintenance employees. The evidence does not show that the re-
spondent ever asked that the Amalgamated prove such majority
or otherwise questioned its designation. Upon the entire record we
are of the opinion that the respondent's refusal to accord recogni-
tion constituted nothing more than an unwillingness on its part to
abandon the position which it first had assumed in February 1937,
at the time the original contract with the Amalgamated was made,
namely, that it would not bargain with a labor organization except
with regard to its own members.
We have repeatedly held that to meet with the duly designated
representatives of employees and to discuss terms does not satisfy
the requirements of the Act if recognition as the exclusive bargain-
ing agent is withheld where it should be granted.' We find, there-
fore, that on August 7, 1937, and thereafter, the respondent refused
to bargain collectively with the Amalgamated as the- representative
of its employees in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
C. Domination of and interference with the Association
In late July or early August 1937, at a time when the Amalgamated
had as members approximately three-fourths of the production and
maintenance employees in the plant, the McKaig &'Hatch Athletic
and Welfare Ass'n. had its genesis. According to the testimony of
leaders of the, organization, the Association sprang from a dissatis-
faction with "the C. I. 0." and the way it was bargaining. The
evidence, however, does not support their view. No specific instances
of dissatisfaction were indicated, and the formation of the Associa-
tion was begun before the Amalgamated had commenced negotiations
for a renewal of its contract.
.
s See Matter of The Griswold Manufacturing Company and Amalgamated Association of
Iron, `Steel, and Tin Workers of North America, Lodge No. 1137, 6 N . L. R. B. 298 ; Matter
of McNeely & Price Company and National Leather Workers Association, Local No. 30, of
the 0. I. 0., 6 N. L. R. B. 800.
DECISIONS AND ORDERS 43
On August 4 a group of 12 men in the employ of the respondent
met for the purpose of taking definite steps toward setting up the
Association. It was decided to organize the Association and to
solicit other employees to join it. In deciding upon the name of
the organization as "McKaig & Hatch Athletic and Welfare Ass'n.",
the men determined not to use the words "labor" and "labor unions,"
in order to avoid any distasteful connotations which it was felt these
words might have. That another reason may have motivated their
decision appears from the character of the solicitation, described
below, which the Association later carried on. Before this meeting,
which was the first of its kind, one of the men had had membership
cards printed and these were distributed among the group. The
cards themselves merely recited membership in the McKaig & Hatch
Athletic and Welfare Ass'n., "an unincorporated association now in
the process of organization." There was no indication that anything
other than a social or fraternal society was proposed.
Among the most active workers in the Association were three men
employed by the respondent in a supervisory capacity, each of whom
was regarded by the employees at the plant as connected with man-
agement. These men were John Toth, George Rath, and Charles
Dirschberger.
Toth was chairman of the executive board of the Association.
Kempf, the general manager, admitted at the hearing that Toth "is
a machine setter, and also on the second shift he looks after the
men." Later Kempf modified his testimony and denied that Toth
had charge of the men, saying that Toth merely "had charge
of the quality of the work" that was being produced in his
department and that "he could shut a machine down and tell
the men that the job was not right according to the gauge." Toth
denied at the hearing that he was a foreman. He testified, however,
that the work shift of the day foreman was staggered and extended
over only part of the night shift, and that for the remainder of the
night shift he, Toth, performed and carried on the same tasks that
the day foreman did. We are satisfied that the work of Toth sep-
arated him from the other employees in his department, that he
occupied a supervisory position of managerial character which so
identified him with the respondent as employer that action taken by
him in connection with the Association 'must be held that of the
respondent.
Rath was treasurer of the Association. His job in the plant was
to inspect the work of other employees after it was completed. One
of the regular foremen, in his testimony, described Rath as the man
who had "the most to say" in the inspection department. Rath testi-
fied that he used to be a regular foreman in another plant formerly
operated by the respondent, and said of his relations with the other
44 NATIONAL LABOR RELATIONS BOARD
men in the inspection department : "I am the oldest man in there, and
they do whatever I tell them." Two employees testified that they
considered him their foreman, and the president of the Amalgamated
testified that Rath would be ineligible for membership in that or-
ganization because of his supervisory position over other employees.
The evidence supports the conclusion'that Rath likewise held a super-
visory position of managerial character, and that his work so allied
him with his employer as to make his acts on behalf of the Associa-
tion those of the respondent.
Dirschberger was among the 12 who founded the Association; he
also served on the committee of the Association which later nego-
tiated a collective bargaining contract with the respondent, as here-
inafter mentioned. He was described at the hearing, by Kempf, as
a "working machine setter," "responsible to see that the machines
were operating properly." Dirschberger himself testified that he was
in charge of the men working in the pump and throttle department.
We find that Dirschberger's position was supervisory in character
and that his activities in the Association were those of the respondent.
As heretofore stated, all three of these supervisory employees,
Toth, Rath, and Dirschberger, were very active in the Association.
They, together with two or three others, launched that organization,
solicited and secured members, appointed the departmental repre-
sentatives mentioned below, and negotiated the Association's contract
with the respondent.
The circumstances surrounding the solicitation and securing of
employees for membership in the Association are worthy of note.
Seven witnesses stated that at the time they joined the Association
they understood, or had been told in response to specific inquiry
made, that the Association was formed, as its name implied, for
social, athletic, and semi-charitable purposes. Two witnesses stated
that they had joined because they were afraid they would lose their
jobs if they did not, and two others said that they were threatened
by their supervisors with loss of their jobs if they did not become
members. Three employees testified that their regular day foremen
solicited them to join the Association. This was denied by the fore-
men. One of the day foremen admitted that he had received a group
of three signed Association membership cards from an applicant
and had turned them over' to an officer of the Association. In the
light of the foregoing and upon the record, we are convinced that
many employees were solicited to become members of the Association
upon a misrepresentation as to its purpose, which under the facts
must be presumed to have been intentional; that the participation of
Toth, Rath, and Dirschberger in the affairs of the Association and
the solicitation by the regular day foremen, whose denials we cannot
credit, as well as threats of supervisors, induced many employees to
DECISIONS AND ORDERS 45
join the Association. We observe that while ordinarily we are not
concerned with the various arguments or appeals made by labor
organizations in securing members, nevertheless where, as here, it is
charged that a labor organization has been fostered by an employer,
through acts of agents, it is an important circumstance in determining
that issue that membership was secured upon a statement, in effect,
that the purpose of the organization was not to represent employees
in collective bargaining.
No general meeting of the membership of the Association was held
until September 7, 1937. Prior to that time, during the month of
August, the original 12 organizers of the Association met, constituted
themselves a "Temporary Committee," and then selected 6 so-called
"shop representatives" to represent the various departments in the
plant. Some of these "representatives" were on the Temporary Com-
mittee. The members of the Association had no voice whatsoever in
choosing their departmental "representatives," and at most could
object only after the choice had been made. On August 30 the "rep-
resentatives," together with the Temporary Committee, notified the
respondent of the existence of the Association and requested the re-
spondent to bargain collectively with it. During the succeeding 4
days they submitted to the respondent a collective bargaining con-
tract, demanded exclusive bargaining rights and other terms, sub-
mitted revised proposals when their first proposals were rejected,
capitulated on their demand for exclusive bargaining rights, and se-
cured a contract from the respondent relating to members of the
Association and providing, among other things, for a 10-per cent
wage increase. None of the members was afforded an opportunity
to express an opinion upon the contract or its terms, prior to the time
that it was signed. On September 7, 1937, a meeting of the Associa-
tion was held, attended by approximately 70 persons, and the contract
was then ratified.
The Association had sponsored no social, athletic, or welfare ac-
tivities up to the time of the hearing. Its bylaws were first adopted
on October 8, 1937. These provide for monthly meetings of the rep-
resentatives of the departments, but make no provision for meetings
of the membership as a whole. They vest in the representatives full
power to engage in collective bargaining and to select the officers of
the Association, with apparently no power of veto in the membership
itself. No mention is made of sick and death benefits or of any
other welfare provision. At the time of the hearing in December,
permanent officers had not yet been elected, and the destinies of the
organization were still being guided by the self-appointed Temporary.
Committee.
From all the evidence it is clear that the Association is an organ-
ization with only a superficial resemblance to a valid collective bar-
46 NATIONAL LABOR RELATIONS BOARD
gaining agency. In truth, its formation and affairs have been spon-
sored, dominated, and interfered with by the respondent through the
acts of the respondent's supervisory employees. The Association was
organized and guided largely by Toth, Rath, and Dirschberger, and
it secured many of its members through the active solicitation of these
supervisory employees as well as by the solicitation of foremen and
threats of other supervisory officials. In the making of the agreement
with the Association the respondent sat on both sides, and the mem-
bers of the Association had nothing to say until presented with a fait
aceompli.e The formation of the Association, we are satisfied, was'
not occasioned by any discontent among employees with their member-
ship in or representation by the Amalgamated, nor by any desire of
the Temporary Committee, as events disclosed, to' provide for the
athletic interests and welfare of the employees, but by the wish and
proposal of the respondent to cause a defection in the ranks of the
Amalgamated on the eve of negotiations and thereby to embarrass
the Amalgamated in any stand taken that the respondent should bar-
gain collectively with it as the exclusive representative of all the pro-
duction and maintenance employees. The Trial Examiner in his In-
termediate Report found that the allegations of the amended com-
plaint with respect to Section 8 (2) of the Act should be dismissed.
Upon a consideration of all the evidence in the case, however, we are
of the opinion, and accordingly find, that the respondent has domi-
nated and interfered with the formation and administration of the
Association, and has contributed' support to it; that it thereby has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. We also find that
the contract, above mentioned, entered into by the respondent and the
Association, is a nullity because it was made with a labor organization
the formation and administration of which had been so dominated
and interfered with.
D. The strike, strike settlement, and refusal to reinstate strikers
As heretofore stated, the negotiations of the representatives of the
Amalgamated with the respondent, which were begun on August 7,
we're "not getting anywhere," chiefly because of the unwillingness of
the respondent to recognize the Amalgamated as exclusive bargain-
ing representative of the production and maintenance employees.
After August 20 only informal conferences were carried. on. The
testimony of representatives of the Amalgamated and officials of the
respondent is agreed that the main stumbling block in all negotiations
6 The tactic of granting a company -dominated labor organization contractual benefits,
I. order to "head off" a competing organization , was noted by the court in National Labor
Relations Board v. American Potash & Chemical Corporation ( Allied Chemical Wotlcers'
Assn. of Trona, Cal., Intervenor ), 98 F. (2d ) 488, 494 (C. C. A. 9th).
DECISIONS AND ORDERS 47
was the matter of the Amalgamated's requests for exclusive bargain-
ing rights. An agreement upon the terms of the proposed contract
was continually delayed because of the obstinate refusal of the re-
spondent to accord exclusive recognition. This refusal constituted an
unfair labor practice, as pointed out above.
On September 2 approximately 68 employees walked out of the
plant on strike because of the respondent's refusal to accede to the
demands of the Amalgamated. They were joined the following day
by eight more employees. We find that the unfair labor practice of
the respondent in refusing to grant exclusive bargaining rights to
the Amalgamated as required by the Act was one of the principal
causes of the strike.7
On September 7 the Amalgamated filed with the Board its origi-
nal charge in this proceeding alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), and (5) of the
Act, in that the respondent had fostered and encouraged the forma-
tion of the Association and had refused to bargain with the Amal-
gamated. On September 27 the strike was settled pursuant to an
agreement between the respondent and the Amalgamated. The
actual terms of the settlement were reached September 26 in a tele-
phone conversation between Payne, representative of the Amalga-
mated, and Kempf, the general manager, and were confirmed on
that date by the members of the Amalgamated. Because the amount
of orders which the respondent then had on hand was insufficient
to afford immediate work for all of the strikers, it was agreed that
only some of them would be reinstated at once and that others would
be reinstated thereafter. There is a sharp conflict in the evidence,
however, as to what provision, if any, was made with respect to when
the remaining strikers who were not immediately reinstated were to
be returned to work. According to the testimony of Payne, it was
agreed that all the strikers would be reinstated, within 3 weeks or
less. Kempf denied at the hearing that any such understanding was
had with regard to a specified period of return.
As above indicated, at the time the strike settlement was made,
charges had been filed with the Board, and this proceeding was
then pending, relating to the unfair labor practices which had led
to and caused the strike. While the record does not show that pro-
vision was made in the settlement for recognition of the Amalga-
mated as exclusive bargaining representative of all the production
and maintenance employees of the respondent, or for any steps to
be taken by the respondent with regard to the Association whose
formation it had dominated, the agreement did purport to deal with
7 National Labor Relations Board v. Remington Rand, Inc., 04 F. (2d) 862, 872 (C. C. A.
2nd), certiorari denied, 304 U S 576
48 NATIONAL LABOR RELATIONS BOARD
the reinstatement of the striking employees , a matter involved in
this proceeding .8 No consent or approval of the Board, or of any
of its members or agents , to the terms of the settlement was secured
when the agreement was made, nor has any confirmation since been
had. In similar cases we have held that "where no member or repre-
sentative of the Board has participated in an agreement involving in
whole or in part the compromise and settleinent of charges of unfair
labor practices pending before the Board , the Board is not concluded
by such an agreement from determining , in its own discretion,
whether under the circumstances of the case it is necessary in order
to effectuate the purposes and policy of the Act . to refuse to with-
hold action on account of such agreement ." ° Accordingly, we hold
that if, as here, the evidence fails to establish by clear and convinc-
ing proof the provision of an agreement settling or compromising
a matter pending before the Board, and such agreement has been
made without the consent or approval of a member or representative
of'. the Board, a fortiori the Board in its discretion may proceed to
take what action it deems necessary in connection with such matter
in order to effectuate the purposes and policy of the Act.
Subsequent to the strike settleinent , but prior to the issuance of the
amended complaint, about one -half of the employees who had gone on
strike, including the president and other 'active members of the
Amalgamated , had returned to work. None of these persons was
named in the amended complaint . By the time of the hearing, nine
other striking employees , named in the amended complaint and listed
hereinafter in Appendix A,'° likewise were employed . We do not
hold that the respondent has discriminated in iegard to the hire and
tenure of employment of any of the persons, who thus have been re-
employed, within the meaning of Section 8 (3) of the Act. The rein-
statement of most, if not all , of them appears to have been in pursuance
of the strike ° settleinent ; the Amalgamated has a 'cgiiiesced 'in the selec-
tion of those chosen to return to work, from among the striking
employees , and such choice was not discriminatory ; the delay in the
8 We have in some cases viewed settlement agreements which deal only with reinstate-
ment of striking employees and not with the unfair labor practices which induced or
prolonged the strike, as mere truce arrangements, especially where the unfair labor prac-
tices had been made the basis of charges pending before the Board at the time the settle-
ment is reached: Matter of Farmco Package Corporation and United Veneer Box and
Barrel Woi kern Union, C 1. 0, 6 N L R B 601
°Matter of The Kelly-Springfield Tire Company and United Rubber Workers of America,
Local No. 26 and James M Reed and Minnie Rank, 6 N L R B 3255: Mattel of Ingram
Mannfaeturtng Company and Textile Workers Organizing Committee, 5 N. L. R B 908.
Section 10 (a) of the Act provides • "The Board is empowered, * * * to prevent any
person from engaging in any unfair labor practice * * * affecting commerce This
power shall be exclusive, and shall not be affected by any other means of adjustment
* * * 'that has been or may be established by agreement, * * * "
10 The respondent and the Board stipulated and agreed at the hearing that the nine
persons named in Appendix A, attached hereto, were reemployed by the respondent between
the date of the strike and the healing.
DECISIONS AND ORDERS 49
reinstatement of some of them, in a few instances beyond the 3-week-
period after the settlement, was acquiesced in by the Amalgamated.
We will, dismiss-the allegations- of the.-complaint in respect to the
persons listed in Appendix A.
It was stipulated and agreed at the hearing by the respondent and
the Board that 31 specified persons named in the complaint and listed
hereinafter in Appendix B," were among the employees of the re-
spondent who went on strike on September 2, 1937, and that these 31
persons have not since been reinstated by the respondent. The re-
spondent, by its counsel, further stipulated for the record that each
of the 31 requested employment either on September 27, 1937, or
within 3 weeks thereafter. It appears from the evidence that since
September 2 the respondent has employed 23 individuals, listed here-
inafter in Appendix D, none of whom was on its pay roll on that
date. The respondent contends that these new employees were hired
to perform work which the striking employees either had not per-
formed or for which they had no skill. The relevant inquiry is
whether the 23 individuals thus hired since September 2 were em-
ployed in positions which could have been filled either in whole or in
part by the 31 persons above mentioned. We do not find that the
evidence establishes that these positions, or some of them, could not
have been so filled. Although the respondent had it in its power to
make such proof, if it could, no such showing was made. Kempf made
a vague assertion at the hearing that some of the 23 men had been
hired during the strike because they were most fitted to perform such
new work. However, he also admitted that at least some of the strik-
ing employees had not been reinstated because they had been replaced :
Q. But you didn't let go any of the men who came in during
the strike in order to put a striker to work?
A. [Kempf.] No, we did not.
Q. You would not have done that?
A. [Kempf.] I don't think it would have been fair to the men.
Q. That is why some, of the men who went on strike haven't
gone back to work? They were replaced by the men who came
in during the strike?
A. [Kempf.] Some of them, yes.
In the absence of credible testimony or other proof to the contrary,
we cannot find that the 23 individuals who were hired since September
2 were doing work which could not have been performed by strikers
who were not reinstated.
11 The respondent and the Board stipulated and agreed at the hearing that the 31 persons
named in Appendix B, attached hereto , were employees of the respondent who left the
plant on Orike September 2, 1937, and since that date have not been reemployed by -the
respondent.
50 NATIONAL LABOR RELATIONS-BOARD
While we have given some force above to the strike settlement in
so far. as it may have been executed by the reinstatement of striking
employees, we find that it will not effectuate the purposes and policy
of the Act to accord the settlement further weight by withholding
action on account thereof in the instance of the 31 who have not been
reinstated. The respondent, as above mentioned, refused to reinstate
these employees after application for reinstatement had been made.
However, the strike having been caused by the unfair labor practices
of the respondent, the ordinary right which the respondent had to
select its employees was "vulnerable," and its refusal to reinstate the
31 striking employees was subject to such order as the Board, in
effectuating the purposes and policy of the Act, might make, directing
the respondent to reinstate said employees; to dismiss persons hired
since, and not in its employment at, the commencement of the strike, for
the purpose of making positions available for such reinstatement; and
to compensate such striking employees for any loss of ",ages sustained
by virtue of the refusal.- Our order below will make provision to
remedy the situation brought about by the unfair labor practices which
led to the strike.
Moreover, we are satisfied from the above-quoted testimony of Kempf
and the record that 23, or if not as many as that number nevertheless a
substantial part, of the 31 striking employees would have been rein-
stated at the time application for reinstatement was made by them
and within a short period thereafter, had the respondent after appli-
cation was made dismissed so many of the 23 persons hired since, and
not in its employment at, the commencement of the strike, as it then
had in its employment, and refrained from hiring persons not in its
employment at the commencement of the strike, to the extent necessary
to make positions available to the 31 applicants. The failure of the
respondent to make any such displacement at the time of application
and to refrain from so hiring thereafter, for no reason other than its
unwillingness to do so, in effect and in result discriminated , and con-
stituted a discrimination, concerning hire and tenure of employment
against the employees who went on strike against the respondent's
anti-union conduct, and in favor of employees whose position was one
of sufferance , without greater right to their positions than their em-
ployer's defeasible right to employ them could afford. A preference of
this character discourages union membership.-
We find that by discriminating in regard to the hire and tenure
of employment of its employees, thereby discouraging membership
'a Matter o f Black Diamond Steamship Corpow ation and Marine Engineers ' Beneficial
Associal son , Local No . 33, 3 N L R . B 84; order enforced in Black Diamond Steamship
Corporation v. National Labor Relations Board, 94 F. (2d ) 875 (C. C A 2d), certiorari
denied , 304 U S 579 ; National Labor Relations Board V . Remington Rand, Inc, 94 F.
(2d) 862 (C. C. A 2nd ), certiorari denied , 304 U S 576
's Matter of Black Diamond Steamship Corporation, footnote 12, supra; Black Diamond
Steamship Corporation v. National Labor Relations Board, footnote 12, supra.
DECISIONS AND ORDERS 51
in the Union, the respondent has engaged in and is engaging in an
unfair labor practice, within the meaning of Section 8 (3)' of the
Act, and has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act. The
provision of our order below with respect to the 31 striking employees
not reinstated likewise will remedy these unfair labor practices.
It also was stipulated at the hearing by the respondent and the
Board that eight of the persons named in the complaint, and listed
in Appendix C,14 were laid off by the respondent prior to the date
of the strike. No evidence was introduced in support of the allega-
tions of the complaint that the lay-off was discriminatory, within the
meaning of Section 8 (3) of the Act, and the complaint, in so far as
it alleges such discrimination, will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, B, C, and D, above, occurring in connection with the opera-
tions of the respondent described in Section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. In order to effectuate the policies of
the Act and free the employees of the respondent from such domina-
tion and interference, and the effects thereof, which constitute a
continuing obstacle to the exercise by the employees of rights guaran-
teed them by the Act, we shall order the respondent to withdraw all
recognition from the Association, to disestablish it as a representa-
tive of the employees for the purposes of collective bargaining, and
to cease giving effect to the contract with the Association.15
The respondent will, in addition, be required to cease and desist
from other of its unfair labor practices specified above, to bargain
collectively with the Amalgamated as the exclusive representative
of its employees in the unit here found appropriate, and to take
such further action set forth below, essential to effectuate the purposes
and policy of the Act.
Since the strike was caused by the respondent's unfair labor
practices and in view of our findings of unfair labor practices con-
trary to Section 8 (3), we shall, to-effectuate the purposes and policy
14 See Appendix C attached hereto.
"National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc et at, 303 U. S.
261; National Labor Relations Board v. Pacific Greyhound Lines, Inc., et al, 303 U. 8 272
52 NATIONAL LABOR RELATIONS BOARD
of the Act, order the respondent to offer reinstatement to thei r
former or substantially equivalent positions (or, if no such posi-
tions be available, them, to any position for - which, they may be
qualified, occupied by any person hired since September 2 and not
on the pay roll of that date) to the 31 employees, and'to each of
them, named in Appendix B, who went on strike, and, although
they applied for reinstatement, have not since been reinstated. The
offer of reinstatement shall be without prejudice to their seniority
and other rights and privileges. Such reinstatement shall be ef-
fected in the following manner : All, or such number as may be neces-
sary, of the 23 employees hired after the commencement of the
strike, whose names are listed in Appendix D, and of any other
persons hired by the respondent since September 2 who were not
on its pay roll as of that date, shall be dismissed, if necessary to
provide employment for those to be offered and who accept rein-
statement. If, thereupon, despite such reduction in force, there is
not sufficient employment immediately available for all or any of
said 31 employees to be offered and who shall accept reinstatement,
all available positions shall be distributed among such employees,
without discrimination against any employee because of his union
affiliation or activities, following a system of seniority or procedure
to such an extent as has heretofore been applied in the conduct of
the respondent's business. Those of the 31 employees remaining after
such distribution, for whom no employment is immediately avail-
able, and those of the 31 who, in accordance with what has been
set forth above, are reinstated not to their former or substantially
equivalent positions but to positions for which they may be quali-
fied, shall be placed upon a preferential list prepared in accordance
with the principles set forth in the previous sentence, and shall
thereafter, in accordance with such list, be reemployed in their former
or in substantially equivalent positions, as such employment becomes
available and before other persons are hired for such work.
Since the strike was the result of the respondent's unfair labor
practices, and said 31 striking employees, as heretofore mentioned,
each made application for reinstatement within a period of 3 weeks
after September 27, and, independent thereof in view of the dis-
crimination; which we have found in connection with the respond-
ent's treatment of such application, such employees as should have
been reinstated in accordance with what has been stated above, are
entitled to, and in order to effectuate the purposes and policy of
the Act will, be made whole for any loss of wages they may have
suffered by reason of the refusal of the respondent to make available
to them positions, upon or after such application, and to reinstate
them to such positions. Had the respondent after such application
had been made, and to the extent necessary to make positions avail-
DECISIONS AND ORDERS 53
able, discharged all employees hired since September 2 and not em-
ployed any new persons thereafter until all employees who went on
strike against its unfair labor practices had been reinstated, those
employees for whom jobs were available would not have sustained
any loss of wages from the time their application was refused.
However, an allowance shall be made in each case for net earnings
during the period for which compensation shall be awarded.16
Except for two or three instances, it is impossible to determine
from the record the identity of specific individuals who applied for
reinstatement on any particular day within. the 3-week period. , Ac-
cordingly, we shall consider the date of October 18, 1937, 3 weeks after
the termination of the strike, as the date when all of the 31 applied
for reinstatement.
Production at the respondent's plant was at a lower ebb when the
31 striking employees applied for reinstatement on October 18, 1937,
than it was at the time they went out on strike, and it appears that
even if the respondent on October 18 had discharged all persons
hired since the commencement of the strike and not on its pay roll
of September 2, and thereafter employed no persons not on said pay
roll, it could not have reemployed all the 31 requesting reinstatement,
and those whom it would have reemployed would not all have been
reemployed on October 18. Since it is thus impossible on the record
to determine which individuals among the 31 employees would have
been reinstated by the respondent, and, further, as of what time
on or after October 18 they would have been reinstated, the respond-
ent shall make payment to each of the 31 employees, of an amount
equal to that which he would have earned as wages as follows : From
October 18, 1937, to the date of the offer of reinstatement or place-
ment upon a preferential list, less net earnings during -the period,
had the respondent "(1) on October 18, 1937, discharged so many as
might have been necessary of the persons hired after the commence-
ment of the strike on September 2, and not on its pay roll of that
date, and thereafter refrained from employing so many as might
have been necessary of the persons thereafter, employed and-not on
said pay roll, who were or are employed in the same or substantially
equivalent positions as those formerly held by the 31 above employees
or in positions for which all or any of them may be qualified, and
(2) had it filled the positions occupied by such persons with those
of the 31 employees who could fill such positions, in accordance with,
and following such system of seniority or procedure as had thereto-
fore been applied` in the conduct of 'the respondent's business.
16 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 else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 5590, ° 8 N. L. R. B. 440.
147841-39-vol. 10-5
54 NATIONAL LABOR RELATIONS BOARD
THE PETITION
In view of the findings in Section III above as to the appropriate
unit and the designation of the Amalgamated by a majority of the
respondent's employees in the appropriate unit as their 'representa-
tive for the purposes of collective bargaining, it is not necesssary to
consider the petition of the Amalgamated for investigation and
certification of representatives. Consequently said petition will be
dismissed.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Local No. 1139, and McKaig & Hatch Athletic and
Welfare Ass'n. are labor organizations, within the meaning of Sec-
tion 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of McKaig & Hatch Athletic and Welfare
Ass'n. and by contributing support to said organization, has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. The production and maintenance employees of the respondent,
exclusive of tool and die workers and supervisory employees, con-
stitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
4. Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Local No. 1139, is, and at all times since August 7,
1937, has been, the exclusive representative of all employees in such
unit for the purposes of collective bargaining, within the meaning of
Section 9 (a), of the Act.
5. The respondent, by refusing on August 7, 1937, and ever since,
to bargain collectively with Amalgamated Association of Iron, Steel,
and_Tin Workers of North America, Local No. 1139, as the, exclusive
representative of all its employees in such unit, has engaged in and
is engaging in unfair labor, practices, within the meaning of Section
8 (5) of the Act. _
6. By discriminating in regard to the hire and tenure of employ-
ment of the employees listed in Appendix B, thereby discouraging
membership in Amalgamated 'Association of Iron, Steel, and Tin
Workers of North America, Local No. 1139, the respondent has en-
gaged in and is engaging, in an unfair labor practice, within the
meaning of Section 8 (3) of the Act.
DECISIONS AND ORDERS 55
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not discriminated and is not discriminating
in regard to the hire and tenure of employment of the employees
listed in Appendices A and C, and has not engaged in and is not en-
gaging in unfair labor practices, within the meaning of Section 8
(3) of the Act, with regard to them.
ORDER
On 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 respond-
ent, McKaig-Hatch, Inc., Buffalo, New York, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Local No. 1139, or
any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or in any other manner
discriminating in regard to their hire and tenure of employment or
any term or condition of their employment;
(b) In any manner dominating or interfering with the adminis-
tration of McKaig & Hatch Athletic and Welfare Ass'n. or with the
formation or administration of any other labor organization of its
employees, and from contributing support to said Association or to
any other labor organization of its employees;
(c) In any manner giving effect to its contract, heretofore de-
scribed, with McKaig & Hatch Athletic and Welfare Assn. or to any
other contract or agreement which it may have entered into with
said Association in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment;
(d) Refusing to bargain collectively with Amalgamated Associa-
tion of Iron, Steel, and Tin Workers of North America, Local No.
1139, as the exclusive representative of its production and main-
tenance employees, exclusive of tool and die workers and supervisory
employees ;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
56 NATIONAL LABOR RELATIONS BOARD
join, or assist labor 'organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7'of the Act.
2. Take the following affirmative action, which the Board finds will,
effectuate the policies of the Act :
(a) Withdraw all recognition from McKaig & Hatch Athletic
and Welfare Ass'n. as a representative of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish McKaig & Hatch
Athletic and Welfare Ass'n. as such representative;
(b) Upon request, bargain collectively with Amalgamated Associa-
tion of Iron, Steel, and Tin Workers of North America, Local No.
1139, as the exclusive representative of its production and mainte-
nance employees, exclusive of tool and die workers and supervisory
employees;
(c) Offer to the employees named in Appendix B immediate and
full reinstatement, without prejudice to their seniority and 'other
rights and privileges, in the manner set forth in the section entitled
"Remedy" above, placing those employees for whom employment is
not immediately available and those who although reinstated are
reinstated not to their former or substantially equivalent positions
but to positions for which they are qualified upon a preferential list
in the manner set forth in said section; ,
(d) Make whole the employees named in Appendix B ordered to
be offered reinstatement for 'any loss of pay they, or any of them, may
have suffered by reason of the respondent's refusal on October 18;
1937, and thereafter, to reinstate them, by payment to them in the
manner set forth in the section entitled "Remedy" above;
(e), Immediately post notices in conspicuous places throughout
its plant, and maintain such notices for a period of thirty (30) con-
secutive days, stating that the respondent will cease and desist in the
manner, set forth in 1 (a), (b), (c), (d), and (e) and that it will
take the affirmative action set forth in 2 (a), (b),, (c), and (d), of
this Order;
(f) Notify the Regional Director for the Third 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 be, and it hereby is,
dismissed in so far as it alleges, with regard to the persons named in
Appendices A and C, that the respondent has engaged in -and is
engaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
DECISIONS AND ORDERS 57
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives, filed by Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Local No. 1139, be,
and it hereby is, dismissed.
APPENDIX A17
Charles Dirschberger
Edward Koperski
Steve Binkowski.
Edmund Lesinski
Wawclaw Wawrzenski
H. Kubiak
J. Hinca
J. Christian
T. Yokes
APPENDIX B 18 -
Henry Waligura
Arthur Sroka
Joseph Ciesielski
Joseph Hinca
Walter Kaminski
Joseph A. Lochocki
Roger Novier
Anthony Hinca
Frank Rederowicz
Anthony Bork
Aloysius Herko
Stanley Grabowski
Frank Kryzaniak
Frank Skolyan
Andrew Krempa
Frank Swiniarski
John Boldt
Joseph Liska
Stephan Gaj dowski
George Maedl
Edward Yokes
Kleber Pecquer
Joseph Opacki
Teddy Bork
Chester Harko
Joseph Kaplewicz
Charles Muehlbauer
Vincent Hinca
Henry Wright
Walter Falkowski
John Gorski
APPENDIX C 19
Edward Mis
Frank Lewandowski
Leo Krzyaniak
Vincent Tyszka
Anthony Kopec
Walter Tomashuk
Edward Rogacki
Leonard Romanowski
"There is some discrepancy between the spelling of names here , as spelled in Board
Exhibit No 24, and in the amended complaint and charge.
"I See footnote 17
10 See footnote 17.
58 NATIONAL LABOR RELATIONS BOARD
Eugene Kaiser
Walter Kaiser
William Kaiser
Charles Carson
E. Lichtenberger
A. Grzegorczyk
Louis Stahl
Leo Hoch
Carl Wilmoth
Francis O'Neill
Morley Miller
Carl Johns
APPENDIX D 20
Wallace Nowack
Franklin Fairington
Percy Chambers
Paul Mueller
Edwin Spencer
Victor Berra
Ludwig Gerich
Benjamin Ostolski
A. Jobson
J. Jantze
H. Budzeszewski
90 Board Exhibit No. 27.