Morris P. Kirk & Son, Inc.

National Labor Relations Board - Board Decisions

Jun 10, 1942

41 N.L.R.B. 807 (N.L.R.B. 1942)

,In the Matter of MORRIS P. KIRK & SON, INC.; SOUTHERN CALIFORNIANS,
INC. ; THE NEUTRAL THOUSANDS, INC.; GLANCY L. HUFF AND, CLAY
C. RITTENHOUSE, PARTNERS, DOING BUSINESS 'AS EMPLOYEES' ADVISORY
SERVICE; AND GLANCY L. HUFF AND CLAY C. RITTENHOUSE, INDI-
VIDUALLY and INTERNATIONAL UNION OF MINE, MILL AND 'SMELTER
WORKERS, LOCAL No. 468 (C. I. 0.)
Case No. C-0006.-Decided June,10, 1942
Jurisdiction: lead manufacturing industry.
Unfair Labor Practices
In General: employer held responsible for activities of minor supervisory em-
ployees and an employee not shown to possess supervisory authority whose
anti-union conduct was engaged in with the approval and at the insistence of
the employer. -
Companij-Dominated Unions: first organization : participation' by supervisory
employees in formation and affairs ; attendance by management representatives
at organizational meetings held in plant during working. liours ; statements
reflecting employer- antagonism, to affiliated unions and approval of "in`side"
union : solicitation of members and collection of dues on company time and
property ; inactivity of organization following its establishment-successor
'organization: formed by institutional respondents as part of their general
scheme or plan to lend their assistance to employers in effectuating the "open
shop" program throughout Southern California, whose aid employer enlisted
to maintain membership in a subservient organization ; institutional re-
spondents who at first sought to. revive the predecessor-dominated organization,
upon becoming convinced of the futility of such a move, formed the successor
and directed its activities with the full cooperation and support of the
employer. -
Discrimination: discharge of leader- in "outside" union's organizational efforts
purportedly for unsatisfactory work- or misconduct ; charges alleging discharge
of four employees to constitute discrimination, dismissed.
Collective Bargaining: majority established by signed designations.
An employer by its rejection of union's suggestion that issue as to its
majority representation be determined by a cross check, its arbitrary offer
-; requiring •an election in his presence with the ballot box on' his desk, its
derogatory statement made in presence of union officials and its refusal to
again meet with the union representatives has refused to bargain collec-
tively since such activities, in the light of employer's activities in dominat-
ing an "inside" organization, shows that employer at no time intended to
bargain with the union in the manner contemplated by the Act.
Remedial Orders : employer ordered to refrain from according predecessor
"inside" organization recognition although abandoned and a successor or-
ganization formed ; employer ordered to cease and desist from dominating and
interfering with the administration of the successor organization and con-
41N.L.R.B,No.154 -
807
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributing support thereto ; employer ordered to cease and desist from con-
federating or conspiring with the institutional respondents, whose aid it
enlisted in introducing and supporting successor organization, or with any
other individual or group for similar unlawful purposes; successor organiza-
tion which had ceased to function but had not been formally dissolved,
ordered disestablished by employer ; Board ordered institutional respondents
who, acting directly arid indirectly in the interest of the employer, variously
aided and assisted in interfering with the self-organization of employees of the
employer by establishing and supporting successor organization, to cease and
desist from such unfair labor practices and from the conduct which brought
about the concerted violations ; employer ordered to bargain collectively with
the union ; reinstatement and back pay awarded.
Definitions : institutional respondents acting "directly or indirectly" in the
interest of the Company held to be employers of employees of Company, within
the meaning of Section 2 (2) of the Act.
Mr. James A. Cobey, for the Board.
Latham & Watkins, by Mr. Paul R. Watkins, of Los Angeles, Calif.,
for Kirk & Son, Southern Californians, T. N. T., the Service, and G. L.
Huff.
Mr. Clay C. Rittenhouse, of Los Angeles, Calif., appearing in propria
persona.
Mr. Robert O. Lamson, of Los Angeles, Calif., for the, Union.
Mr. Ben Law, of counsel to the Board. -
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local3'No. 468 `of
International Union of Mine, Mill and Smelter Workers, affiliated with
the Congress of Industrial Organizations, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia), issued its complaint, dated May 2, 1940, against the following
companies, organizations, and individuals, herein called the respond-
ents: Morris P. Kirk & Son, Inc., herein called Kirk & Son; Southern
Californians, Inc., herein called Southern Californians; The Neutral
Thousands, Inc., herein called T. N. T.; Glancy L. Huff and Clay C.
Rittenhouse, partners, doing business as Employees Advisory Service,
herein called the Service; and Glancy L. Huff and Clay C. Rittenhouse,
S'individually.'
The complaint, as amended at the hearing, alleged that the respond-
ents had engaged in and were engaging in unfair labor practices affect
' All the respondents, except Kirk & Son, are herein referred to collectively as the institu-
tional respondents.
MORRIS P. KIRK & SON, INC. 809
ing 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. Copies of the amended charges and the
complaint, accompanied by notice of hearing, were duly served upon
the respondents, the Union, Morris P. Kirk & Son, Inc., Employees
Association, a labor organization alleged in the complaint to be domi-
nated by Kirk & Son and herein called the Association, Liberty Protec-
tive League, a labor organization alleged in the complaint to be formed
and dominated by the respondents and herein called the League, the
Central Labor Council of Los Angeles, and the Los Angeles Industrial
Union Council.
Respecting the unfair labor practices, the complaint, as amended,
alleged in substance (1) that the institutional respondents are em-
ployers, within the meaning of Section 2 (2) of the Act, of the em-
ployees of Kirk & Son; (2) that Kirk & Son on or about September 1,
1937, and thereafter, dominated and interfered with the formation and
administration of the Association ; (3) that Kirk & Son, independently.
and in conjunction with the institutional respondents, who were jointly
and severally acting directly or indirectly in the interest of Kirk &
Son, in or about the month of February 1939, and thereafter, domi-
nated and interfered with the formation and administration of the
League; (4) that Kirk & Son, on or about February 6, 1939, and there-
after, refused to bargain collectively with the Union, although the
Union at such times was the exclusive representative of its employees
in a unit appropriate for the purposes of collective bargaining; (5) that
Kirk & Son discriminated in regard to'the hire and tenure of employ-
ment of five named employees,2 thereby discouraging membership in
the Union; and (6) that kirk & Son, by all of the above acts, and the
institutional respondents, by the acts set forth as to them, interfered
with, restrained, and coerced the employees in the exercise of their
rights guaranteed in Section 7 of the Act.
The respondents, except Rittenhouse, in their separate answers, as
amended at the hearing, denied all the material averments of the com-
plaint, as amended, relating to them and, as a separate defense, alleged
that they are not subject to the jurisdiction of the Board. Rittenhouse
'filed an, answer in his own behalf and as a partner of the Service,
admitting all allegations of the complaint, as, amended, as to his
activities and those of the institutional respondents.
Pursuant to notice, a hearing was held in Los Angeles, California,
from June 10 to 20, 1940, before James C. Batten, the Trial Examiner
duly designated by the Chief Trial Examiner; The Board and the
respondents, except Rittenhouse, who appeared in propria persona,
2 James G Burton , discharged on February 4, 1939; Curtis T Garrett, discharged on
February 4, 1939; Clinton Henson, discharged on April 5 , 1939; George Hammond, dis-
charged on April 10, 1939 ; and James W. Hawkins , discharged on June 26, 1939.
810 DECISIONS. OF' NATIONAL LABOR RELATIONS BOARD
were represented by counsel, and the Union by its representative, all,
of whom participated in the hearing.3 Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner granted; without
objection, the motion of the Board to amend the complaint by alleging
the discriminatory discharge of two named employees. During the
course of the hearing, the Trial Examiner denied certain motions of the
respondents, except Rittenhouse, to make the complaint more certain
and to strike portions of the complaint relating to the institutional
respondents and the Association. He denied Kirk & Son's motion
for a bill of particulars, after striking from the complaint certain
omnibus clauses, and allowed, insofar as minor particulars are con-
cerned, the motion of the Board to conform the pleadings to the proof.
The Trial Examiner authorized the taking of the deposition of Morris
P. Kirk, president of Kirk & Son.4 The Board has reviewed these
and other rulings of the Trial Evaminer on motions and on objections
to the admission of evidence, and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. Subsequent to the hear-
ing, briefs were submitted to the Trial Examiner by Kirk & Son and
by counsel for the Board.
The Trial Examiner thereafter filed his Intermediate Report, dated
February 11, 1942, copies of which were duly served upon the parties.
He found that Kirk & Son 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 Act. He also
found that the institutional respondents had engaged in and were
engaging in, unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
Act. The Trial Examiner recommended that all the respondents cease
and desist from the unfair labor practices' and that Kirk & Son take
certain affirmative action designed to effectuate the policies of the
Act. Exceptions to the Intermediate Report were.filed by Kirk & Son
and the institutional respondents, except Rittenhouse, on March 16;
1942. On April 1, 1942, Kirk & Son filed a motion to receive addi-
tional evidence. The 'Board has considered this motion, and it is
hereby denied.b
. 3 The Assgciation and the League did not participate in the proceedings, although served
with the complaint and notice of hearing
The deposition of Morris P . Kirk was taken before it notary public on July 12, 1940,
and was limited by mutual consent of the parties to the issue of the alleged refusal to bargain
by Kirk & Son . Kirk & Son and the Board were represented by counsel and participated
in the taking of the deposition . In his Intermediate Report, the Trial Examiner made the
deposition a part of the record. - -
s The purpose of the motion was to add to the - record evidence showing that since the
alleged refusal by Kirk & Son to bargain with the Union there has been a substantial turn-
over among the, employees . In any unit which night be found appropriate. Kirk & Son,
MORRIS P. KIRK & SON, INC. 811
Pursuant to notice, a hearing was duly held before the ^ Board in
Washington, D. C., on April 21,1942, for the purpose of oral argument.
Kirk & Son was represented by counsel and participated in the argu-
ment. The Board has considered the briefs and the exceptions of the
respondents to the Intermediate Report and, insofar as the exceptions
are inconsistent with the findings, conclusions, and order set forth
-below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Morris P. Kirk & Son, Inc., is a Nevada corporation engaged in
the manufacture and sale of lead and allied products, with its sole
^offiice and 'place of business at Los Angeles, California. During the
year 1939, Kirk & Son purchased raw materials consisting of pig
lead, pig tin, secondary metal-bearing materials, acid, aluminum
alloy, zinc, and antimony amounting in value to approximately
$1,250,000, of which approximately $500,000 worth was shipped to
the Los Angeles plant from points outside the State of California.
During. the same period, the sales of manufactured products amounted
in value to over $1,500,000, about 7 percent of which was derived from
sales of products shipped outside the State of California. The re-
spondent Kirk & Son employed at the time of the hearing approxi-
mately 73 persons in its factory departments.
Southern Californians is a non-profit organization, existing since
October 23, 1937, by virtue of the laws of California. Its member-
ship is limited to "persons, firms and corporations, residents of or
qualified to.. do business in, or located, or interested in the State of
California." It offers 2 types of membership, "institutional" and
"individual." The former is available to employers of other, than
doniestic or household labor and its dues incident in 1937 and 1938
was calculated on the basis of 50 cents per month per employee of such
-member. The latter is issued to individuals and requires the pay=
ment of an initiation fee of $100. Applicants for membership ex'
pressly declare a belief in the objectives of Southern Californians
and pledge themselves to comply with and be bound by its articles of
contends , in substance , that because of this turn-over any majority representation which
the Union may have had has been dissipated and that to order it now to bargain with the
Union , in the event the Board finds a refusal to bargain, would not effectuate the policies of
the Act. The evidence which Kirk,& Son seeks to have added to the record is not material,
for as hereinafter found , the Union lost its majority through Kirk & Son 's unfair labor
practices . Cf. National Labor Relations Board v. P. Lorillard Co., 314 U S. 512, and cases
cited therein , revg. , and remg. National Labor Relations Board v. - P. Lorillard Co., 117 F.
'(2d) 921, with directions to-enf . Matter of P Lorillard Company , Middletown, Ohio and
Pioneer Tobacco Workers Indvstriai Union No. 55, 16 N. L. R. B. 684.
I
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incorporation and bylaws. At the time of the hearing, it was com-
posed of approximately 440 institutional members and 50 individual
members, representing together virtually every type of industry and
business in Southern California. The articles of incorporation of
Southern Californians recite that it was formed to attain these ob-
jectives, among others : "to improve, stimulate and,increase the vol-
ume of business and trade in Southern California" by such means as
may serve to attract "new business enterprise"; "to-cooperate in con-
nection with the consideration of all social and economic movements";
and to contribute from its funds "such sums of money . . . as it may
deem proper under all the circumstances involved."
T. N. T. was incorporated on October 2, 1937, as a non-profit mem-
bership corporation of California "exclusively for educational pur-
poses." Membership in T. N. T. is open only to women, requires no
dues payments, and obligates those to whom it is extended to pledge
support of "the Industrial Peace Crusade of the Neutral Thousands
to safeguard the welfare of California women and children and to,
protect the American Home." Its bylaws provide that "it will seek
to demonstrate the futility and waste of industrial strikes in which
the public and the families of the workers always lose." The extent
of T. N. T.'s actual membership, if any, was not established. Prac-
tically all its financial requirements were met by Southern Cali-
fornians until March 15,1939, when it became inactive.
The Service was formed by Southern Californians on or about
April 1, 1939, as a partnership consisting of Glancy L. Huff and Clay
C. Rittenhouse to carry on some aspects of the work previously done
by T. N. T. It was wholly supported by, and operated under the
supervision and control of, Southern Californians.6
IT. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Local
No. 468, is a labor organization affiliated with the Congress of Indus-
trial Organizations, admitting to membership employees of Kirk &
Son. I
6 The findings set forth above respecting Southern Californians , T. N. T., and the
Service are adopted from Matter of Sun Tent-Luebbert Company, et at and Textile Workers
Union of America, Local No, 99, C. I. 0 , et at., 37 N. L A B . 50, herein called the Sun Tent
Cases. On July 5, 1940, the Board , the respondents , and the Union entered into a stipu-
lation providing : "That the Findings of Fact of the Board as to jurisdiction of the Board
over [ institutional ] Respondents . . . and, as to the business and relationship between
[them] . . . to be made in [ the Sun Tent Cases] may be made part of the record in the
within proceeding and may be adopted by the Board as its Findings of Fact with respect
thereto in this matter ; and that the said Findings of Fact will have the same force and
effTt as though the testimony and other evidence upon which said Findings are to be
based was adduced in the hearing in the within matter; . . .' On July 26 , 1940, the Board
issued an order approving the stipulation and making it a part of the record herein.
MORRIS P. KIRK & SON, INC. 813
Morris P. Kirk & Son, Inc., Employees Association and Liberty
Protective League are unaffiliated labor organizations, admitting to
membership employees of Kirk & Son.
A. Interference with,, support, and domination of the Association
1. Sequence of events
The first organizational activities at Kirk & Son's plant occurred
in "the fall of 1937, when employees were solicited to join the United
Automobile Workers of America, herein called the U. A. W. Within
a: few days a substantial number of employees had signed application
cards for membership in the U. A. W.
A week or two after the advent of the U. A. W. organizing cam-
paign , a movement was started to establish an unaffiliated organiza-
tion. Toward that end, a meeting was held at the plant warehouse
sometime in September 1937. The mutually corroborative and sub-
stantially undisputed testimony of production employees James G.
Burton and James W. Hawkins, which we credit, as did the Trial
Examiner, establishes the following account of the meeting and the
events mimediately preceding it: 7 The meeting was announced for
4:30 p. in. by a notice on the plant bulletin board, stating in part,
"Everybody must be there." On the same day, Gordon Burke, a
subforeman in the antimonial lead department, and Fred Strahan, a
shipping clerk, went through the plant during working hours in-
structing all employees to attend. James Miller, assistant plant super-
intendent, also notified at least one employee of the meeting. At
4:30 p. m. practically all the employees on the day shift, which had
just concluded, including office employees, salesmen, and several
supervisory employees," gathered in the warehouse. A number of em-
ployees from the night shift, which had already begun, attended with-
out deduction in pay. Those present constituted an overwhelming
majority of all the employees. During the early part of the meeting,
Clarence Wright, Kirk & Son's timekeeper and paymaster, called the
roll of employees. We find that Wright utilized his position with
the respondent to direct the course of the meeting. Burke then asked
those present why they wished to organize and who their "speaker"
was. John Austin, a subforeman, who had taken the initiative in
soliciting employees for the U. A. W., replied that all other companies
4 Burton's and Hawkins ' testimony was corroborated in various material respects by
John Austin , Thomas E Knapp , a metal assayer , and by other employees
'The evidence establishes conclusively, and we find, that the following subforemen
were present at the meeting ; Gordon Burke, John Austin, Harry Dodd, William Jolly,
Charles Williams , and Charles Potter See footnote 11, snfra, for 'a description of the
status and duties of these employees Les Smith , the foreman in charge of the machine
shop, was also present
814 DECISIONS,"OF NATIONAL LABOR RELATIONS BOARD
Affiliated with the National Lead, Company were organized and that
he thought there should be a union at Kirk & Son. Subforeman
Burke then went into the office and returned shortly thereafter with
C. G. ("Deacon") Pyle, a.salesman. Pyle addressed those present,
advising them' against affiliation with either,the A. F. L. or C. I. -0.
on the ground that if they joined either organization Kirk & Son
would lose the business of customers whose employees were members
of the other., John Austin, who had been absent from the meeting
for a few minutes during Pyle's talk, then returned and announced
that'he had just talked with a representative of International Union
of Mine, Mill and Smelter Workers, the Union herein, who advised
him that the time was not yet ripe.to.join an organization affiliated
with the C. I. 0. and that if the employees joined an unaffiliated
union they could transfer to the Union at a more auspicious time.
Those present then agreed to hold an election to determine whether
they would join the A. F. L., the C. I. 0., or an independent organi-
zation and to have Clarence Wright, Gordon Burke, and Les Laryheu,
the chief chemist, conduct the election. Wright announced that only
persons who had been employed for 3 months would be entitled to
vote. The balloting followed, with Laryheu handing out ballots,
Wright checking off the names of employees as they voted, and Burke
having custody of the ballot box. The ballots used were mimeo-
graphed and allowed the choice of the "A. F. L.," "C. I. 0.," or an
"independent union." Most of the employees present, including su-
pervisory employees, voted. The result was overwhelmingly in favor
of an independent union.9 As employee Hawkins left the meeting,
Harrison Gregory, foreman of the oxide department, asked him if the
election had come out as Hawkins wished. Hawkins replied that he
was "neutral" and Gregory stated, "That is the way we want it."
A few days after the election, a notice appeared on the plant bul-
letin board announcing another meeting for 4:30 p. m. of that day in
the plant warehouse. Practically all the employees on the day shift,
including several of the supervisory, sales, and office employees, at-
tended. Various employees from the night shift, during whose work-
ing hours the meeting was held, were also present, without deduction
in pay. At the meeting Sam Dubs, the plant superintendent, intro-
duced Morris P. Kirk, president of Kirk & Son, who outlined the
growth and development of Kirk & Son's business, and stated that he
was glad, to see the employees "form a union" and that they could
According to John Austin, the events above described as occurring at one meeting
occurred at two meetings instead. Austin testified that the first meeting concluded
when ' the employees decided to hold an election and that the election was held at
a second meeting 2 weeks later . The relevant testimony of all other witnesses sup-
ports the account we have found above Under the circumstances , even though there were
two meetings , our ultimate findings as to the Association would remain the same.
MORRIS P. KIRK & SON, INC. , -815
"all work together and be one big, happy ',family.", Pyle also ad,
dressed the employees, congratulating them on their decision. to form
,an independent organization 10 These speeches were followed by the
election of officers. Clarence Wright, timekeeper and paymaster, was
elected. president; John Austin, a subforeman, was elected vice presi-
dent; and Harry Moore, an office employee, was. ,elected 'secretary-
treasurer. Thus, the Association was formed.
Thereafter, the Association held a few meetings in the plant ware-
house until the spring of 1938, when it arranged for the use of a private
hall. It continued to hold meetings until it disbanded in February
1939. At the second election of officers, pn August 30, 1938, William
Zaring, head carpenter, 'was elected president; John Hawkins,' a ma=
ohinist,, was elected vice president; and Charles Williams, subIforeman
in charge of the yard, was elected secretary-treasurer.
Subforeman Charles Williams was outstandingly active on behalf of
the Association. There is considerable uncontradicted evidence, which
we credit, as did the Trial Examiner, that he collected dues for the
Association during working hours in the plant, in some instances from
employees under 'his supervision, and solicited the membership of new
employees. , George Hammond, who was hired in September 1938,
testified that soon thereafter Williams confided to him that the Asso-
ciation had been organized to "keep out the C. I. 0. and the A. F. of L."
Williams denied Hammond's testimony, but admitted that he had
solicited Hammond's membership. We find, as did the Trial Exam-
iner, that Williams made the remark attributed to him by Hammond.
Members and leaders of the Association evinced no real interest in
that organization and made no serious attempts to bargain collectively
through it. Attendance at its meetings, according to the undisputed
testimony of employee James Burton, "gradually dwindled off" and
became "very slight." The credible testimony of several witnesses
establishes the fact that the meetings were largely social gatherings,
with little, if any, discussion of wages, hours, or other conditions of
employment. Williams testified without contradiction that the Asso-
ciation made no demands "to speak of" upon Kirk & Son.
As more fully set forth below, in January 1939 when the Union
became active in organizing the employees, Williams and other repre-
sentatives of the management, with the assistance of the institutional
respondents, sought to revive the Association. After Rittenhouse,
io The finding as to the ' speeches by Morris P. Kirk and "Deacon " Pyle is based upon the
testimony of Burton , Hawkins , and Frank Tinz , which we credit , as did the Trial Examiner.
John Austin testified that he attended the meeting but could not recall whether Kirk said
anything about the men joining the Association He agreed that Kirk discussed the devel-
opment of the business . Sam Dubs testified that he did not recall having attended the
meeting Thomas E Knapp testified that Kirk outlined the development of the business,
but denied that he mentioned the Association . Kirk was not questioned as to the
meeting
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representing the institutional respondents, advised various of the sub-
foremen that the Association could not be revived because most of the
persons who displayed any interest therein were supervisory employees,
a. meeting of the Association was held about February 27, 1939, at
which time it was decided to disband the organization, as Williams
testified, "in favor of the Protective League."
2. Conclusions as to the Association
It is clear from all the evidence and the facts set forth above that
Kirk & Son was opposed to the self-organization of its employees. . It
is also clear that when Kirk & Son became aware of the U. A. W.'s,
organizing efforts among the employees it decided that if it must tol-
erate any form of labor organization a union of its own choice was to.
be preferred. The participation by supervisory employees" in the
formation of the Association and in its affairs; the holding of meetings,
"Kirk & Son contends that it is not responsible for the acts and statements of Gordon
Burke, John Austin , Charles Williams and other subforemen occupying similar positions,
namely, Harry Dodd, Domenico Ferrara, Andrew Greco , Ernst Jolly , Charles Potter, Omar
Lytle , and William Zaring. While these persons do not have authority to hire and
discharge employees , at times perform manual labor, and are paid on an hourly basis, the
record is plain that they possess supervisory authority identifying their interests more
closely with management than with the employees . , Each of the afore -mentioned persons,
excepting Zaring , is classified by Kirk & Son as a "strawboss " Williams, who has from
2 to 10 employees under his supervision , testified that he was "yard foreman ," and he was
thus referred to in the testimony of other employee witnesses Among other things, Wil-
hams assigns yard employees to their duties , supervises the loading and unloading of
materials , and reports upon the work of his subordinates to Marcheski , head of the smelting
department . Potter, referred to by at least 2 employees as "a foreman ," is employed in
the metallic salts department and has about 11' or 12 suboidinates He keeps records,
superv ses the loading of copper for shipment , transmits and gives orders to his subordinates,
and reports on their work to Assistant Superintendent Miller Burke, the "strawboss" in
the antimonial lead and 2 other departments , has from 4 to 9 suboidinates He instiucts
employees in the performance of their duties and reports on the progress of the work in his
departments to Miller . While Zarinq testified at the hearing that he is the only carpenter
in the plant . he conceded that he at times has helpers At a meeting with Rittenhouse in
February 1939 be termed himself " head carpenter" and stated that he had authority to
recommend hire and discharge Austin, Dodd, Feriama, and Jolly, shift "bosses" or "fore-
men," in the smelting department , are responsible for the proper performance of the opera-
tions which they supervise during their hours of work. The testimony of Kirk & Son's
witnesses regarding the discharge of Hammond , who worked under both Dodd and Jolly,
makes it plain that these shift "bosses " report on the work of their subordinates While
no specific testimony was adduced concerning the duties of Greco, "stiawboss" in the metal-
casting department , and Lytle, " strawboss" in the oxide plant , we infer and find that their
duties are similar to the other employees similarly classified From the foregoing, and
upon the entire record , we find that Kirk & Son is responsible for the activities of the
above-mentiond employees as related herein Inte r national Association of Machinists V
N L R B , 311 U S. 72, aff ' g 110 F ( 2d) 29 (App D C ) enf'g Matter of The Se?riek Cor-
poration and International Union, United Automobile Workers of America, Local No 159,
8 N. L. R. B 621 ; H J Heinz Company v N L R B, 311 U. S. 514, aff'g 110 F (2d) 842
(C. C A 6), enf'g Matter of H. J Heinz Company and Canning and Pickle Workers, Local
Union No 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North
America, American Federation of Labor, 10 N L R B 963; N. L R B V Link-Belt Company
'et at, 311 U . S 584 , rev'g 110 F ( 2d) 506 (C C A 7) and enf 'g Matte? of Link-Belt Com-
pany and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North ,
America, through the Steel Workers Organizing Committee, affiliated with the Committee for
Industrial Organization , 12 N. L R . B. 854.
MORRIS P. KIRK & SON, INC. 817
attended by management representatives such as Clarence Wright,
C. G. Pyle,12 and the subforemen, in the plant during working hours for
the purpose of organizing the Association; the statements of Pyle and
Kirk at these meetings, reflecting employer antagonism to national
labor organizations and approval of the Association; the solicitation of
members and the collection of dues while employees were at work; and
the ineffectiveness of the Association as a bargaining representative,
combine to show, unmistakably that the Association was the device by
which Kirk & Son sought to stifle the desire of its employees for affilia-
tion with a union of their selection, and that the Association did not
serve, and was incapable of acting, as the freely chosen representative
of Kirk & Son's employees.
We find, as did the Trial Examiner, that Kirk & Son dominated and
interfered with the formation and administration of the Association
and contributed support to it, and that by such acts and the acts and
statements of Kirk, Pyle, Wright, Williams, Austin, Burke, Zaring,
and other representatives of Kirk & Son, set forth above, Kirk & Son
has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
B. Domination and interference with the formation and administra-
tion of the League; attendant interference, restraint, and coercion
1. Sequence of events
In December 1938 several of Kirk & Son's employees discussed the
ineffectiveness of the Association as a bargaining representative and
the advisability of organizing an affiliate of the Congress of Industrial
Organizations. At a meeting of about 6 employees and a union repre-
sentative, held on January 28, 1939, at the home of George Hammond,
an employee, a plan of organization was discussed and a mass meeting
of employees of Kirk & Son was scheduled for January 31. The 6
employees proceeded to distribute among their fellow employees cards
providing for the acceptance of membership in the Union and authoriz-
ing the Union to act as bargaining representative. Between 18 and
25 employees attended the meeting held on January 31. Many of
those present signed cards. On the following night some 28. employees
attended another meeting at which additional cards were signed,
officers were elected, initiation fees were accepted, an application for a
12 While there is no showing that Pyle possesses supervisory authority, we find, from the
nature of Pyle's position, from his cooperation with supervisory employees in the formation
of the Association, and from the, circumstances in which Pyle engaged in conduct opposing
outside unions, that he acted with the approval and at the instance of Kirk & Son, that the
employees reasonably understood that such was the case, and that Rrik & Son is responsible
for such conduct Cf Triplex Screw Co v N L R B , 117 F (2d) 858 (C C A 6), enfg
as mod. Matter of Triplex Sciew company and Amalgamated Association of Iron, Steel and
Tin Workers of North America, 25 N. L. R. B 1120; and cases cited in footnote 11, supra.
46:1892-4 2-vol 41--i52
818 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
.charter was presented, and a decision was reached that union buttons;
Which were then distributed, be worn in the plant on the next day. -
On the morning of February 2, 1939, a substantial number of em-
ployees appeared at work wearing union buttons. There was all.
immediate reaction amolig the supervisory employees. Thus, accord-
ing to uncontradicted evidence, which we credit, Subforeman Burke
and Head Carpenter Zaring openly requested several of the men wear-
ing buttons to sign a petition stating that they were opposed to the
Union; when Hammond facetiously asked Subforeman' Williams -in
the presence of a group of other employees when he was going, to "join
their ranks," Williams replied that he thought too much of his job
"to jeopardize it by joining the C'. I. 0."; Subforeman Jolly char-
acterized the Union to employee Burton as "a hell of an outfit"; and
Subforeman Potter told employee Garrett, as Garrett testified, "that
a man derived no benefit from them [unions] ; that he paid big, dues
into the organization for some big head of the organization to rake
off a fat salary and big traveling expenses"; Subforeman Austin ad-
vised employee Tinz that Superintendent Dubs had assembled all the
subforemen and told them that "it was up to them" to stop the Union's
organizational drive 13 Tinz testified that Williams asked him to sign
a paper in opposition to the Union and that he refused.' Williams
denied having made such request of Tinz, but admitted having ex-
pressed to Tinz his opposition to the Union. According to Tinz's
further testimony, Superintendent Dubs approached him and Williams
while they were talking and said, "Well, those that stay with the com-
pany and don't go into this organization will be well thought of."
Williams testified that he did not recall that Dubs had made this
remark to Tinz, but admitted that he had heard Dubs make it to some-
one. Dubs testified that he did not recall having made such a state-
ment. We credit, as did the Trial Examiner, Tinz's testimony con-
cerning his conversations with Williams and Dubs. Employee
William Austin, who was one of those wearing a union button, testified
that on February 2, Dubs said to him, "Bill, how could you do it? You
have jeopardized all of the boys' jobs," and that Austin replied that
the employees desired and needed organization. According to Austin's
further testimony, Dubs then left him and, returning later in the
day, admonished him as follows : "Bill, whatever you do when you get
a committee together to see Mr. Kirk, don't go with them . . . I
knew you had been a C. I. O. man and I hired you even when I knew
"Austin did not deny the testimony of Tinz , which we have credited , as did the Trial
Examiner , in making the above finding. Dubs denied that he had thus instructed the
subforcmen It is unnecessary for us to determine whether Dubs did issue such instructions
We have found Kirk & Son answerable for the statements and acts of its subforemen and
Austin's statement to Tinz, whether true or false , must reasonably have been understood
'by the employees to reflect hostility of Kirk & Son to the Union
MORRIS ' P. IURKi'. & $ON; INC . 819
it so if you go in with:the committee there . it will mean my job."
Dubs denied having made the statements attributed to him by Austin.,
The Trial Examiner did not credit his denial, nor do we. We find
that- Dubs made the anti-union statements attributed to him by Tinz
and Austin.
Two or three days after the employees first appeared at the plant
wearing their union, buttons, employees Tinz and Hawkins, both
adherents of the Union, were summoned to the office of Morris P.
Kirk. Kirk, Williams, and Zaring were present in the office. The
testimony of Tinz and Hawkins as' to the ensuing interview is as fol-
lows : Kirk asked "what all of this was about." When Tinz re-
plied that the employees desired to join the C. I. 0., Kirk asked,why it
had to be the C. I. O. and why the employees could not "get along"
as they were or join the A. F. of L. Kirk then added that he did not
care what organization they belonged to, that their jobs would not
be endangered so long as they performed their work, but that he
did not want "any outsiders coming in dictating to him" or "telling
him how to run his business." Williams and Zaring testified that the
substance of Kirk's remarks was that the employees could join any
organization they wished so long as they did their work properly.
Zaring denied that Kirk said anything about not wishing to deal
with "outsiders." We credit the. version of the meeting given by
Tinz and Hawkins, as did the Trial Examiner, and find that Kirk
made the statements attributed to him by them.
At about this time T. N. T. and Southern Californians began to
lay the groundwork for organization of the League and the with-
drawal of Kirk & Son's employees from the Union. The uncon-
tradicted testimony of Clay C. Rittenhouse, at that time a representa-
tive of T. N. T., and Subforeman Williams, and supporting docu-
mentary evidence show the following sequence of events in this respect :
On or about February 1, 1939,-Glancy L. Huff, also a representative of
T. N. T., told Subforeman Williams by telephone that he had been
informed that "labor trouble" had developed at the plant and offered
to send someone to "iron it out." Williams and Huff arranged for
a meeting of employees to be held on February 2. Williams then
posted on the bulletin board in the plant the following notice written
on stationary, bearing Kirk & Son's letterhead :
The entire group of employees of Morris P. Kirk and Son, Inc.,
are urged to attend (sic) a special meeting at the front gate, this
evening Feb. 2, 1939. 4: 30 p. m.
don't forget
Huff had already sent handbills to Williams, who posted one on the
plant bulletin board and distributed the balance throughout the plant
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during working hours. These handbills contained several quotations
from news articles in the Los Angeles Examiner dealing with labor
or intra-union disputes involving the Congress of Industrial Organi-
zations. Each of these excerpts was followed by one of the following
handwritten warnings or questions :
Looks like -trouble in the C. I. 0. !
Do you want to walk a° picket line?
* * * * * *
Easy to get into - - hard to get out of !
* * * * * *
It's up to you-a job or a picket line?
On February 2, during the morning or early afternoon, Huff told
Rittenhouse, as the latter testified without contradiction, that Brechtel,
a representative of Southern Californians, had requested Huff and
Rittenhouse "to do some work in the Morris P. Kirk situation, which
was quite disturbing," and Huff asked Rittenhouse to meet Pyle, a
salesman, at the Kirk & Son plant at 4: 30 o'clock that day. Ritten-
house accordingly met Pyle and Williams at the plant shortly after
4: 15 p. in. Pyle reported to Rittenhouse that there had been "con-
siderable C. I. O. activity" among the employees and stated that there
had been an independent organization [the Association] at the plant,
but that the employees were dissatisfied with it. Pyle then explained
that he considered that the employees would "get farther in the long
run" with the Association and asked Rittenhouse to "talk to a few
of the boys-and explain to them their futile efforts in trying to
organize a C. I. O. union." Williams explained that the Association
was "about to blow up" and suggested that Rittenhouse comment to
the employees on labor disputes involving the A. F. of L. and the
C. I. O.
At 4: 30 p. in. a group of approximately 55 or 60 employees gathered
on the railroad right-of-way near the plant after Rittenhouse ex-
plained to Williams that he could not address the employees on com-
pany property. Rittenhouse addressed these employees, stating that
he desired to determine the reasons for their dissatisfaction with the
Association as he felt that it might "do more for them than the two
international' organizations could." In substantiation of this state-
ment, Rittenhouse adverted to labor difficulties encountered by em-
ployees at various plants on the West Coast as the result of their
affiliation with international unions. He refused to answer questions
of the employees as to who had sent him to the plant, but stated that
he was being "well paid" for his time. Before leaving the gathering,
MORRIS P. KIRK & SON, INC. 821
Rittenhouse told Zaring and others that he was willing to assist them
in reviving or reorganizing the Association.
Shortly after this meeting, Rittenhouse, at the request of Williams,
agreed to meet with a group of employees at Williams' home: The
meeting,' which was held on or about February 6, was attended by
about 12 or 14 employees, 6 of whom held supervisory positions and
had been ;prominent in establishing the Association. Rittenhouse,
according to his undisputed and credible testimony, emphasized "the
difference between the independent set-up and the C. I. 0. set-up"
by referring again to difficulties encountered by employees as the
result of affiliation with the C. I. 0. He then pointed out that if the
Association was to be revived, the task would have to be performed by
non-supervisory employees. Several ' of those present, including
Williams, then stated that they were "strawbosses" with authority to
recommend discharge. Rittenhouse asked that a meeting be arranged
"with more of the production employees present" and advised that
otherwise it was useless- to proceed. Despite this advice, at the next
meeting which was held on or about February 13 at the home of
Les Smith, a foreman in the machine shop, substantially the same
group of employees was present. ' As Rittenhouse explained at the
hearing, he decided then that "the only way that I was going to get
the group that I wanted was to permit these fellows that had classified
themselves as strawbosses to attend until we could get somebody that
could take upon their shoulders the initiative to organize the new
group." Rittenhouse advised the group that it was necessary to
dissolve the Association and that he would have to use "his own
initiative" in forming "a second one."
At the next meeting, which was held at. the home of Foreman Potter,
the original group of employees was augmented by persons who had
accepted membership in the Union. (International Union of Mine,
Mill and Smelter Workers, Local No. 468.) Rittenhouse reviewed his
discussions at the prior meetings.' He assured the members of the
Union who expressed concern that their jobs would be jeopardized by
association with "a new movement," in the event the Union was suc-
cessful in its organizational effort, that he would do his best to fore-
stall any bla&listing'or . expulsion- by "the Union. The succeeding
meeting, which was held at the home of Zaring the head carpenter,
was attended by about 25 to 30 employees. Rittenhouse arranged
for the use of the office of T. N. T. for the next meeting, held on
March 1, when temporary officers were elected and the name "Liberty
Protective League" was adopted. Rittenhouse was authorized to
draft a constitution and bylaws.
During the formative period of the League, Rittenhouse, in response
to the request' of employees who had joined the Union "for some
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
method of getting out" of the Union, prepared and sent to Subforemari.
Williams forms, typed at the office of T. N. T., providing for resigna-
tion and withdrawal of authority from the Union. • Most of these
documents were distributed by Williams in the plant during working
hours, and were signed by some 13 employees on or about February 10:
Pursuant to•advice from Rittenhouse, Williams sent the signed resig-
nations to an organizer for the Union, whose name and address had
been obtained for Rittenhouse by Randolph Van -Nostrand, a repre-
sentative of Southern Californians assigned to the office of T. N. T.
as a liaison agent between the two organizations.
At a meeting of the League held on March 9, a constitution and
bylaws, which had been prepared by Rittenhouse with the secretarial
assistance of a stenographer in the office of T. N. T., were adopted with-
one or two minor changes. The constitution and bylaws confer upon'
the Board of Directors complete control of the League. 'No provision_
is made therein for regular meetings of members. At this meeting,
the temporary president and secretary were authorized to notify
Kirk & Son that the League represented over 51 percent of the employ-
ees and to request exclusive recognition.
In a letter and petition prepared by Rittenhouse and sent to Kirk
& Son on March 10, the League represented that it had been desig-
nated by over 51 percent of the employees, all,of whom had "resigned
from and severed all affiliations with the American Federation of-
Labor or the Committee of Industrial Organizations," and requested
exclusive recognition. By letter to the League dated March 13, Kirk
& Son suggested that its bargaining committee present proof of its
majority claim at the office of Morris Kirk on March 15. On the
latter date, a meeting of the League committee and Kirk was held,
at which, upon the request of Kirk, George Bless, treasurer of Kirk
& Son, checked the League's application cards against Kirk & Son's
pay roll. Bless testified that his check revealed that 62 percent of
the persons whose names appeared upon- the cards were on the pay
roll. Included among the employees whose names were considered-
in this check were Jack Austin, William Jolly, Dominico Ferrara,.
Harry Dodd, Charles Williams, Charles Potter, and Gordon Burke,
all of whom were supervisory employees. On March 20 Kirk & Son
notified the League that it had no objection to granting it exclusive-
recognition, provided that the office .personnel were excluded from
the unit represented by the League. ; On March 22 the League replied
that it was the intention of the League to represent "only the em-
ployees in the production departments."' On March 24 the League
advised Kirk & Son that the matter of, representation had been taken
up with its members; that "It is with great pleasure that we received
your recognition of our group"; and that it desired a bargaining
MORRIS P. KIRK. & SON, INC. 823•
conference. On -March 25 Kirk & Son replied : "We are now ready
to deal with you at such time or times as meets with your convenience
and ours."
. As hereinbefore stated, T. N. T. became inactive about March 15;
1939. , About April' 1, 1939, the Service was formed by Southern.
Californians as a partnership of Rittenhouse and Huff, who proceeded
thereafter to carry on, as partners in the Service, much of the work
which they had started as representatives of T. N. T. This work,,
as set forth more fully below, included their activities in connection
with the League.
Further meetings of the League, attended by Rittenhouse, were held
on March 23, April 10, and May 11 at the Chamber of Commerce
Building, and on June 7 and August 10 at a hall rented by the Inde-
pendent Rubber Workers, an unaffiliated union. At these meetings,
according to the minutes of, the League, there was some discussion
concerning wages, an insurance plan "which has the moral and finan-
cial support of the company," sanitary conditions, and ways and
means of securing attendance of members. In this connection, Rit-
tenhouse testified that after the League had received recognition by
Kirk & Son "and the novelty of the movement had worn out, the
interest began to sort of die down," and that he accordingly sug-
gested "various things . . . such as recreation, picnics, outings, beach
parties, insurance plans, as a means of sustaining employee interest.
Rittenhouse made all arrangements for the use of the meeting places
and, according to his uncontradicted testimony, the rent for a meet-
ing in the Chamber of Commerce Building was paid by the Service.
Rittenhouse's activity in connection with the affairs of the League
came to a-close at the meeting of,August 10.' The record indicates
that following the, severance of Rittenhouse's relations, the League
ceased to function. There is no showing that further meetings were
held or that employees otherwise evinced any interest in this organi-
zation. -
2. Participation of the institutional respondents in the organization
of the League
As appears above, the formation and activity of the League resulted
in large part from the guidance and efforts of Rittenhouse and Huff.
Uncontradicted testimony of Rittenhouse and Van .Nostrand, repre-
sentative of Southern Californians, documentary evidence, and our
findings in the Sun Tent Cases 14 establish a clear connection between
the institutional respondents and the League. In February 1939,
when Huff: told Rittenhouse that he had been requested by Brechtel
11 See footnote 6, supra.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Southern Californians to intercede "in the Morris P. Kirk situa-
tion," both Huff and Rittenhouse were employed by T. N. T., which
was financed principally by Southern Californians. As set forth
below, T. N. T. was engaged in a general program of establishing so-
called independent unions among the employees of employers in South-
ern California, as a means of combatting the organization of affiliated
unions. In this capacity, which was, in the words of Rittenhouse,
"just part of my work," T. N. T., through Huff and Rittenhouse,
proceeded in the manner already described to instill in the employees
of Kirk & Son opposition to the Union and to encourage and assist
them to form and administer the League. No^ charge was made to
employees of Kirk & Son for the services of Rittenhouse or for the
use of T. N. T.'s office and secretarial staff. When Huff and Ritten-
house left the employ of T. N. T. about the latter part of March, they
continued to function in the same manner in their capacity as partners
in the Service. The Service was supported and controlled by South-
ern Californians. Moreover, from February through April 1939
Rittenhouse reported directly to, Brechtel of Southern Californians on
his activities with regard to the League. Huff and Rittenhouse like-
wise reported their activities in this connection, both as employees of
T. N. T. and later as partners in the Service, to Van Nostrand, the
representative of Southern Californians who acted as liaison agent
between that organization and T. N. T. and the Service, respectively,
and who in turn regularly reported on these matters to Partridge, sec-
retary-manager of Southern Californians. Rittenhouse testified
without contradiction, and we find, that shortly after he and Huff
had started the Service, he made a written report on their" activities
in the "Morris P. Kirk situation," which was transmitted to Van
Nostrand. The latter's report to Partridge, dated March 24, 1939,
shows the result of the services which Huff and Rittenhouse performed
for Southern Californians with respect to the employees of Kirk &
'Son. The report, which is captioned "Southern Californians, Inc.
Interdepartment" is as follows : -
The Kirk employees report that with the service given them they
have been able to,disband a bad company-dominated union and
that they have formed a new group containing 35 out of 45
employees` and that this group has been recognized by the
management.
On the basis of all the.evidence, we find that Rittenhouse and Huff
participated in the organization and administration of' the League
in the course of their duties, first, as employees of T. N. T. and subse-
quently, as partners of the Service and that such activities had the
approval and support of T. N. T. and Southern Californians.
MORRIS P. KIRK & SON5 INC. 825
3: Conclusions as to the participation of all the respondents in the
formation, administration, and support of the League.
As hereinbefore found, in 1937 and thereafter Kirk & Son dominated
and interfered with the formation and administration of, and con-
tributed support to, the Association and otherwise interfered with,
restrained, and coerced its employees in order to thwart their efforts
to organize under the aegis of the U. A. W. or any other union of their
choice. With the inception in 1939 of the second effort of its em-
ployees to organize a C. I. 0. union, Kirk & Son, through its officers
and supervisory employees, again demonstrated its hostility to such
self-organization and sought to impose upon its employees a labor
organization of its selection. Supervisors Burke and Zaring requested
employees to sign a petition opposing the Union. Superintendent
Dubs stated that those who "stay with the Company" and did not join
the Union would "be well thought of" and cautioned that his job, as
well as that of the other employees, would be "jeopardized" if the
latter joined the Union. Similarly, Supervisors Williams, Jolly, Pot-
ter, and Austin, in the various ways set forth above, openly warned
the employees against affiliation with the Union. President Morris
P. Kirk questioned employees as to their intentions with respect to the
Union and plainly indicated his opposition to dealing with` any "out-
side" labor organization.
Simultaneously with the express opposition of Kirk & Son to the
Union, the institutional respondents proceeded, through Rittenhouse
and Huff, to revive the Association and then, becoming convinced of
the futility of such a move, to form the League and direct its activities.
Supervisors Williams, Austin, Zaring, and Potter, who'had been ac-
tive in the Association, participated fully in the formation of the
League. As Williams testified, they disbanded the Association "in
favor of the League." Kirk & Son did nothing to mark the separa-
tion between the two organizations and publicly to deprive the League
,of the advantage of its obvious successorship to the company-domi-
nated Association. We find that the League is a successor of the
Association.
In forming and administering the League as the successor of the
Association, the institutional respondents received valuable guidance,
assistance, and cooperation from persons, for whose actions Kirk &
Son is accountable,15 including Salesman Pyle, supervisory employees,
and President Kirk. Thus, Pyle explained to Rittenhouse at the plant
Kirk & Son's desire to continue an inside organization rather than
to deal with the Union. Supervisor Williams distributed the anti-
C. I. 0. handbills provided by T. N. T., through Huff; posted on the
15 See footnotes 11 and 12, supra
•826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant bulletin board, on Kirk & Son's stationery, the notice' of the
meeting which was addressed by Rittenhouse on or about February 2,
1939; met and conferred with Rittenhouse at the plant prior to the
`meeting; and assisted Rittenhouse and Van Nostrand in procuring
resignations from the Union. Thereafter, various supervisors of Kirk
& Son, including Superintendent Dubs; actively facilitated the efforts
,of the institutional respondents by participating in the formation and
administration of the League, or by disparaging the Union. Moreover,
President Kirk expressly declared to two employees his desire to avoid
having to deal with an "outside" union, permitted the use of Kirk &
'Son's time and property for enlisting employee support of the League,
and readily accorded that organization recognition as exclusive bar-
gaining representative. It is notable that the League never prepared
or submitted a proposed collective bargaining contract to Kirk & Son,
and that it ceased to function upon the withdrawal of Rittenhouse. All
the evidence abundantly shows, and we find, that Kirk & Son co-
operated with the institutional respondents in forming and supporting
the League.
Our findings in the Sun Tent Cases as to the business and relation-
ship among T. N. T., the Service, and Southern Californians, con-
sidered in connection with the foregoing evidence of cooperation be-
tween Kirk & Son and the institutional respondents, lead us to conclude
that Kirk & Son,. in addition to cooperating with the institutional
respondents, enlisted their aid in forming and administering the
League as a means of combatting the Union. Pursuant to the stipula-•
tion entered into by the parties on July 5, 1940, we hereby adopt, as
part of our findings of fact with respect to the business of and rela-
tionship among the institutional respondents herein, the followin
findings of fact from the' Sun Tent Cases.'6
Reports prepared by T. N. T.'s staff on their labor 'relations
work ---------- indicate the established technique used by Rit-
tenhouse and Huff _____! These reports, particularly those
prepared by Rittenhouse and Huff on their activities as field or-
ganizers, reveal the perfection by T. N. T. of an "independent"
union formula and yield a wealth of information on the practical
application of that formula by T. N. T. __________. The formula
and the technique by which it was applied may be described as
follows : Employers confronted by the initiation of organiza-
tional activity among their employees, or by possible or actual
strikes, or by a demand for the continuance of a contract entered
into with the A. F. of L. or the C. I. 0., turned to T. N. T.
__________ for advice and assistance in devising a means of
' See footnote 6, supra.
MORRIS P. KIRK & SON, INC. 827
combat. Thereupon, Abbott'17 or Rittenhouse, or Huff proceeded
to investigate the situation and to determine the advisability of
introducing an "independent" union among the employees in
question. If the initial organizational activity- appeared serious
or the strike showed signs of being successful, if other conditions
appeared favorable, and if the employer showed a willingness to
accord T. N. T. complete cooperation, Rittenhouse or Huff, upon
instructions from Abbott __________, immediately launched the
organization of an "independent." They proceeded to consult'
"key" employees designated by the employer ---------- as re-
liable, to undermine the confidence of the employees generally in
the national organization which was attempting to enroll them,
and to suggest, finally, that only an "independent" union could
grant them security of, employment -through respectable and
dignified representation 18 -
In the absence of strong employee opposition to the suggestion,
with the aid of the "key" employees, and under the persistent
guidance of Rittenhouse or Huff, an "independent" soon came
-into existence as a non-profit corporation. Thereafter Ritten-
house or Huff assumed control of the organization, for, as Ritten-
house explained in a memorandum to Ochs 19 on December 27,
1938, "Many of these employees lacking leadership depend -upon
the members of the staff of T. N. T. to guide them in holding their
organization together.
* * * The evidence shows conclusively that Southern Cali-
fornians came into existence in October 1937, and thereafter con-
tinued to exist, primarily for -the purpose of augmenting and
financing the efforts of ---------- T. N. T. in establishing the
"open shop" in Southern California as a means of combat against
organized labor and that the objectives testified to constitute.l
some of the lesser means by which that purpose was sought to be
achieved.
* * * Memoranda and reports prepared by T. N. T.'s staff
and by Southern Californians and =the credible testimony of Rit-
tenhouse and other witnesses show that all phases of T. N. T.'s
work,were scrutinized and'superv'ised by its benefactor. Early in
the existence of T. N. T., Ochs transmitted to Southern Cali-
fornians ' executive committee a detailed prospectus of work con-
templated, discussing at length the "independent" union formula
1
]v Abbott was the office manager of T.- N T.
38 Deletions from our findings in the Run Tent Cases herein quoted refer to the Mer-
chants and Manufacturers Association of Los Angeles , which was not named as a party
respondent in the instant case.
19 Ochs was the general director of T. N. T.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and program. In addition, T. N. T. submitted to Southern Cali-
fornians for its approval an itemized monthly budget of ,proposed-
expenditures. Each statement thus prepared covered the salary
of Abbott, Rittenhouse, and Huff. Among the items charged to
T. N. T. on Southern Californians' • books and-paid by.Southern
Californians is that of $13,436.25 for publicity. * * *
Southern Californians also ,supervised the general activities of
T. N. T.'s staff through the coordinating work performed by
J. L. Van Norman, who served as "contact man" between the two
organizations. In that capacity, according to the testimony of
Rittenhouse ,and documentary evidence, he discussed with Ritten-
house and Huff the details of their work in forming and directing
"independent" unions and received reports from Ochs on the
general program.and progress of T. N.T. * * *
* * * * * * *
According to the testimony of Rittenhouse, which we believe, as
did the Trial Examiner, and which is ,supported by documentary
evidence, the Service was brought into existence by Southern Cali-
fornians under the following circumstances : After T. N. T. had
been abandoned, Van Nostrand ,directed Rittenhouse ,and Huff to
establish a new entity through which ,they could continue to.super-
vise and keep alive "independents" already established pursuant
to ,the T. N. T. formula and explained to them, that he would par-
ticipate in the determination of policy for, .and in the direction of
ithe affairs of, the projected organization. Thereupon, Ritten-
house and Huff formed a partnership under the name ,of "Em-
ployees Advisory Service" and moved into new headquarters.
It is undisputed that the salaries of Rittenhouse and Huff and all
,expenses incurred by the =Se'r`vice="•fivWe,-paid -by Southern +Cali-
fornians.and that Southern Californians has directed and con-
trolled the affairs of the Service and has been fully informed of
its activities.
As is apparent from a memorandum from Van Nostrand to.
Southern Californians, dated March 24, 1939, the change of or-
ganizational identity did not'alter, the nature of the pursuits to
which Rittenhouse and Huff had devoted themselves for T. N. T.
As in the past, they continued to confer with employers, to form
"independent" unions and allied organizations, and to direct their
affairs pursuant to the program developed by T. N. T. * * *
It is plain that ,the T. N. T. formula delineated in the above recital
was followed in all material respects in the instant case, and that the,
League was brought into being as an integral'part of-a general schemL-
or plan of all the institutional respondents herein to lend their services,
MORRIS P. KIRK & SON, INC. 829
upon request, to employers, in effectuating the open-shop program
throughout California.20 In view of the foregoing, and upon the basis
of all the evidence of close cooperation in the formation and adminis-
tration of the League among the institutional respondents and super-
visors and officials of Kirk & Son, we find that Kirk & Son enlisted
the aid of the institutional respondents to maintain the membership of
its employees in an organization which was subservient to its will and
otherwise ineffective as an instrument of employee representation. We
further find that the institutional respondents are employers of the
. ,employees ,here involved, within The meaning of Section 2 (2) of the
Act, since they acted "directly or indirectly" in the interest of Kirk &
Son in the formation and administration of the League. We find that
by failing to disestablish the Association prior to the formation of
the League, by the activities of its representatives in the formation of
the League, by disparaging the Union to its employees and encouraging
their membership in the League, Kirk & Son interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, and contributed material support to the
formation and administration of the League. We also find that all the
respondents, acting in concert, have dominated and interfered with the
formation and administration of the League and have contributed
financial and other support to it, thereby interfering with, restraining,
and coercing their employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges', and the Union claimed at the hearing, that
the production, maintenance, machine shop, and warehouse employees
of Kirk & Son at its-Los, Angeles plant, excluding truck drivers, cleri-
cal, supervisory, laboratory, and sales employees, constitute an appro-
priate unit for the purpose of collective bargaining. While. Kirk &
Son in its answer denied the appropriateness of the unit as alleged in
the complaint, it merely objected at the hearing to the exclusion of
certain employees contended by the Union to be supervisory.
The Union claims that John Austin, Gordon Burke, 'Harry Dodd,
Dominico Ferrara, Andrew Greco, Ernest Jolly, Omar Lytle, William
Zaring, Charles Potter, and Charles Williams should be excluded from
the unit. We have found above that these persons are supervisory
^ In the Sun Tent Cases the Board found, that the "open-shop program" espoused by the
institutional respondents was designed to cover a deliberate anti-union policy and was
directed at defeating the right ,of• employees in Los Angeles and -its environs to self-
organization and collective bargaining through representatives of their own choosing
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees.21 During the organizational campaign of the Union they
were not solicited to join the Union, which is the only lawful labor
organization here involved, and the Union has not sought to represent
them. While the record indicates that these persons might, under cer-
tain circumstances, be eligible for membership in the Union, we shall
exclude them from the unit in view of their supervisory authority and
their participation as management representatives in the unfair labor
practices found above.22 '
We find that the production, maintenance, machine shop, and ware-
house employees of Kirk & Son at ita,Los Angeles,plant, excluding
truck drivers, clerical, supervisory, laboratory, and sales employees,
at all times material herein constituted and now constitute a unit
appropriate for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other conditions of
employment and that such a unit insures to the employees the full
benefit of their right to self-organization and to collective bargaining
and otherwise effectuates the policies of the Act.
2. Representation by the Union of'a majority in the appropriate unit
Kirk & Son's factory pay roll for the period from February 1 to 15,.
1939, was introduced in evidence. It lists 59 employees within the
unit which we have found to be appropriate.
The Board introduced in evidence 35 application cards for member-
ship in the Union and 1 authorization for representation by the Union.
These 36 designations, all bearing signatures corresponding with names
of employees within the appropriate unit, were delivered to Scott,
the International Representative of the Union, on or before February
4, 1939, by William S. Austin, the recording secretary of the Union.
Kirk & Son does not contest the' date upon which the cards were ap-
parently signed. It did, however, question the-,authenticity of the
signatures, but offered no evidence thereon. At the request of the
Board, it produced canceled checks bearing the signatures of 9 of the
employees who signed designations. A comparison of the signatures
on 9 of the Union's designations with the signatures appearing on the
checks clearly discloses that the signatures are authentic. The remain-
ing 27 designations were authenticated by the testimony of the signers,
or by the testimony of witnesses to the signatures, or by testimony
that the Union received initiation fees from the persons whose names
21 See footnote 11, supra
22 See Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local 172, etc, 30 N. L. It . B 550, and cases cited therein in footnote
30. International Association of Machinists v N L R B . 311 U. S 72, aff'g'110 F -(2d)
29 (App. D. C.) enf'g Matter of the Serrick Corporation and Intc+national Union, United
Automobile Workers of Amertiea, Local No 459, 8 N L R B 621
MORRIS P. KIRK & SON, INC. 831
appear thereon. Consequently, we find that the Union, on February
4, 1939, represented 36 of the 59, employees in the appropriate unit.2a
We find that on February 4, 1939, and at all times thereafter, the
Union was the duly designated representative of a majority of em-
ployees in the aforesaid appropriate unit, and that, by virtue of Section
9 (a) of the Act, the Union was at all times, material herein and is the
exclusive representative of all employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours. of
employment, or other conditions of employment.-'
3. The refusal to bargain -
On or about February 6, 1939, Ray Livingston, an international
representative of the Union, and a committee of the Union, composed
of William Austin, George Hammond, Ernest Raulston, and Richard
Smith, met at the plant with Morris P. Kirk, George Bless, and J.
Paul Kirk, president, treasurer, and secretary, respectively, of Kirk
& Son. The mutually corroborative testimony of Livingston, Ham-
mond, and Austin as to what occurred at this meeting is as follows :
Livingston claimed that the Union represented a majority of the em-
ployees and requested that Kirk & Son recognize and bargain with it.
Kirk stated that he believed that the Union had no jurisdiction over
the employees, adverting to the fact that the plant was not only a lead
foundry but was also engaged in manufacturing chemicals. Kirk
then discussed for a considerable time his relations with the employees,
citing instances in which he had given them financial assistance, and
stating that he was surprised that they "would join the union" since
be felt "that they were a large, happy family." Kirk referred to Ham-
mond and Austin, members of the committee, as new employees who
were unaware of "how the Company worked with their men," and
stated that the new employees seemed to be "the ones that are most
discontented." Kirk also stated that when Austin was hired he men-
tioned that he had been an active member of the C. I. O. and agreed
to cease his union activities. Livingston then suggested that there
should be no further discussion of personalities and that some method'
23 Each of the application cards expressly authorized the Union to bargain for the person
signing it "in all matters pertaining to rates of pay , wages, hours of employment, or
conditions of employment "
2,1 It appears from the evidence hereinbefore discussed that on or about February 10, 1939,
a substantial number of the employees who had designated the Union as their representative
resigned from the Union and withdrew from the Union any authority which had been
previously given to it to represent them. Since we have ' found that these resignations
and withdrawals were obtained by the respondents in connection with their domination of
and interference with the formation and administration of the League, we considar the
withdrawals as ineffective to deprive the Union of its status as collective bargaining repre-
sentative National Labor Relations Board V . Bradford Dyeing Association (U S A )
et al., 310 U S 318; Continental Oil Co v National Labor Relations Board, 113 F (2d),
473 (C C. A 10), rem on another issue , Continental Oil Co v National Labbr Relations
Board, 313 U. S 212
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be devised to determine the Union's majority designation. The union
committee then suggested that Kirk & Son submit its pay-roll list and
that the Union submit its membership applications to the Board for a
cross-check. Kirk rejected this suggestion. He stated, as the three
union witnesses testified, that the sole method of satisfying him• as
to the Union's majority status "would be to have a ballot box on his
desk and have every worker come in and sign what union they wanted
to belong to." Finally, Livingston asked Kirk if he would deal with
the committee of the Union regarding grievances and other matters,
without granting exclusive recognition. Kirk replied that he would
not meet with the committee under any circumstances.
Morris P. Kirk, Bless, and J. Paul Kirk agreed that at the meeting
the Union claimed majority representation and requested recognition
as exclusive bargaining representative of the employees. Morris P.
Kirk and J. Paul Kirk denied that, the Union suggested that a cross-
check of its designations and Kirk & Son's pay roll be conducted by
the Board, or that the Union made any other offer of proof of ma-
jority representation. Bless testified that he did not recall any offer
of proof by the Union. Morris P. Kirk admitted, however, that he
told the union committee that the only proof that would satisfy him
of the Union's majority representation would be an "impartial elec-
tion and that election . . . would have to take place during my
presence." Morris P. Kirk denied generally all anti-union state-
ments attributed to him by Livingston, Hammond, and Austin, but
admitted that he may have described the employees as a "happy
family." Bless and J. Paul Kirk testified, in substance, that they
did not recall that Morris P. Kirk made the anti-union statements
attributed to him.
The Trial Examiner credited the testimony of Livingston, Ham-
mond, and Austin with respect to the conversation at the meeting.
In view of Kirk & Son's program of opposition to the Union and its
support and domination of the League, Morris P. Kirk's admission
that he declared at the meeting that only an "impartial election" con-
ducted in his presence wotild satisfy him of the 'Union's majority
representation, his admission that he may have described the employ-
ees as a "happy family," and the straightforward and detailed nature
of the testimony of Livingston, Hammond, and Austin, as contrasted
with the general and incomplete accounts of the meeting by the rep-
resentatives of Kirk & Son, we are convinced of the veracity of Liv-
ingston, Hammond, and Austin and we accordingly credit their testi-
mony. We find that Morris P. Kirk made the statements attributed
to him by Livingston, Hammond, and Austin.
By rejecting the Union's suggestion that the issue as to majority
representation be determined by a cross-check between the Union's
k
MORRIS P. KIRK & SON, INC. 833
membership records and Kirk & Son's pay roll, by Morris P. Kirk's
declaration that the only proof which would satisfy him as to that
issue would be an election held in his presence with the ballot box
on his desk, by Kirk's statements in derogation of the Union and the
members of its committee, and by Kirk's refusal to meet again with'
the committee, Kirk & Son plainly demonstrated that it would not
deal with the Union and that any further requests for recognition
would be futile. The foregoing, considered in the light of Kirk &
Son's illegal activity in connection with the Association and the
League, convinces us, and we find, that Kirk & Son at no time intended
to bargain with the Union in the manner contemplated by the Act.
We find, as did the• Trial Examiner, that Kirk & Son on February 6,
1939, and at all times thereafter, refused to bargain collectively with
the Union as the exclusive representative of its employees in an ap-
propriate unit and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
• D. The discriminatory discharge of George Hammond
George Hammond was employed by Kirk & Son in September 1938.
After performing yard labor for a week or 10 days, Hammond was
transferred to the position of charge maker and feeder on the, midnight
shift of the blast furnace crew, in which capacity he continued to
work until his ' dismissal on April 10, 1939. His shift boss, at first,
was Jolly and later, Dodd. It was the practice of Kirk & Son, when
the blast furnace was shut down, to transfer the crew to other work.
On five or six such occasions Hammond was transferred for a few
days at a time to yard work under Williams.
The evidence is clear that Hammond was a leader in the organiza-
tional efforts of the Union. He was one of four employees who first
approached the Los Angeles Industrial Union Council with a request
for organization of Kirk & Son's employees by an affiliated union.
The first organizational meeting of the Union was held,at Hammond's
home. Thereafter, he solicited several employees to join the Union,
and distributed union application cards. He was a member of the
committee of the Union which met with representatives of Kirk &
Son on or about February 6, 1939, and requested recognition and col-
lective bargaining. At that conference Morris P. Kirk singled him
out as one of the new employees who were "discontented" with working
conditions. After formation of the League in February 1939, interest
in the Union generally declined and,'as stated, upon the solicitation
of Rittenhouse and Subforeman Williams, various of the Union's
members submitted resignations. Hammond neither withdrew from
463892-42-vol. 41-53
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union nor joined the League. He continued until the time of
his discharge to urge other employees to become or remain members
of the Union and to attend its meetings.
When Hammond reported for work on April 10, 1939, his foreman,
John Marcheski, advised him that he was discharged for unsatisfac-
tory work. Hammond asked for a hearing and, accompanied by
William Austin and Ernest Raulston, went to the office where these
three employees met with Dubs, Marcheski, and Jolly. On the basis
of the testimony of Hammond, Marcheski, and principally of Dubs,
we find that the following occurred : Hammond stated that he desired
to "get it straight as to why" he was discharged. Marcheski then said
that Hammond had been putting too much coke in the furnace. Ham-
mond insisted that he had put no more coke in the furnace than his
instructions called for and alleged that if the instructions were er-
roneous it was not his fault. Marcheski abandoned this subject and
said, "Well, we are dissatisfied with your work . . . you griped
and, complained about the work here the last few months." Ham-
mond asserted that he had not complained more than other employees.
Dubs then interceded, and as Dubs testified, the following conversa-
tion took place:
I [Dubs] told Mr. Hammond that he was not being discharged
for putting too much coke on the furnace; that was entirely im-
material, that in spite of repeated warnings and also talks there,
he had failed to take the thing the way the rest of the boys were
doing and had made himself so obnoxious on the job that I just
didn't feel like having him in our employ any longer. And he
laughed and wanted to know what the word "obnoxious" meant
and I explained to him that it was a person that made himself
so disagreeable that the other people around him just couldn't
get along with him.
Austin then asked Dubs to explain why all the trouble had developed
since the C. I. O. came into the plant. Dubs answered, "Bill, I think
you can answer that better than I can." When Austin insisted upon
a more definite answer, Dubs, according to the latter's testimony, said,
"all right. You asked for it, here it is. Prior to the time that there
was any activity whatsoever I considered you and George [Hammond]
and the rest of the operators and helpers on the blast furnace the
best crews that we had ever been able to obtain on the furnace. We
had our little trouble which didn't amount to very much but we got
along fine. And then after the C. I. O. activities had started up,
openly into the plant, things started to go bad right away. Now
that's the only answer I can give you." Dubs concluded the meeting
by stating that no man would lose his job so long as he did his work
in a satisfactory manner.
MORRIS P. KIRK & SON, INC. 835
Kirk -& Son contends that it discharged Hammond because "he
neglected his work, interfered with and delayed the work of other
employees and generally made himself objectionable by continually
damning respondent and talking unionism." There is no evidence
that Hammond was derelict in the performance of his duties at any
time before he became active on behalf of the Union. Marcheski
testified at length, however, concerning various instances during
March and the first part of April 1939 in which he allegedly observed-
Hammond neglecting his work and reproved him for doing so.
Marcheski testified further that he had received reports from Sub-
foreman Dodd that Hammond's work was faulty. Superintendent
Dubs testified that shortly before Hammond's discharge, Subforeman
Jolly reported to him that Hammond was "just piling the coke down
the furnace," but that Jolly claimed he had not reprimanded Ham-
mond for this offense because, according to Dubs'-account of Jolly's
report, "Every time I [Jolly] go down there to talk to Mr. Hammond
about the work, he doesn't want to discuss the work ----------- He
damns the Company and wants to talk C. I. 0. with me and won't
simply pay attention to his business ---------- he makes me so mad
I just don't want to have to go down there any more."
Hammond admitted that on one occasion, about March 24, Mar-
cheski accused him of "loafing" and going to the change room too
often. According to Hammond, except for the conversation on the
day of his discharge, this was the only time Marcheski accused him of
improperly performing his work. He denied that he was guilty of
this or other derelictions of duty attributed to him by Marcheski.
Hammond also admitted that about February 5, Dodd had accused
him of "letting the blast run low." He testified without contradic-
tion, however, that Dodd prefaced his complaint about the blast run-
ning low with the accusation that Hammond was sitting in the change
room "thawing about the union," and that Hammond then demon-
strated to Dodd's satisfaction that he was tending the blast furnace
according to instructions. According to Hammond's undisputed ac-
count of his conversations with Jolly, the latter told him in February
or March that he could not understand why Hammond and others
wished- to organize a union at Kirk & Son's plant and Hammond
replied that it was because working conditions at the plant compared
unfavorably with those at, plants in which the employees were or-
ganized. We credit Hammond's testimony concerning his conversa-
tions with Subforemen Dodd and Jolly and find that their remarks
to him indicate a critical attitude and hostility toward him because
of his outstanding activity on behalf of the Union.25
u Neither Jolly nor Dodd testified at the hearing The parties stipulated at the end
of the hearing that , if Dodd had been called as a witness , he would have testified that he
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of all the evidence, we are convinced that Hammond
was not discharged because of unsatisfactory work or misconduct,
but because of his leadership in and continued activity on behalf of
the Union, to which Kirk & Son was opposed. It is apparent from
the statements of Superintendent Dubs to Hammond at 'the time of
the latter's discharge that Dubs considered Hammond to be a capable
workman and that Hammond's attitude, rather than the alleged in-
stances of unsatisfactory work, was the primary factor motivating his
discharge. Morris P. Kirk's characterization of Hammond at the
conference with the union committee on or about February 6 as one
of the new employees who was "discontented" indicates clearly that
to Kirk & Son union advocacy was synonomous with discontent and
an unsatisfactory attitude. Kirk's characterization of Hammond;
Dubs' explanation to Hammond that he had "failed to take the thing
the way the rest of the boys were doing" and that "after the C. I. 0.
activities had started up openly in the plant, things started to go
bad right away"; Marcheski's accusation of Hammond at the time
of his discharge that he "griped and complained"; and the manifest
hostility of Subforelrien Dodd and Jolly to Hammond because of his
union activity make it clear that Kirk & Son's dissatisfaction with
Hammond's attitude lay in, the fact that he failed to accept grace-
fully the illegal acts of Kirk & Son in thwarting the Union and
sponsoring the League.
We find, as did the Trial Examiner , that Kirk & Son discharged
Hammond on April 10, 1939, because of his activity on behalf of the
Union, thereby discriminating in regard to his hire and tenure of
employment, discouraging membership in the Union, and interfer-
ing with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
E. The alleged discrimination against Burton, Garrett, Henson, and
Hawkins
The amended complaint alleged that Kirk & Son discharged, and
thereafter refused to reinstate, James G. Burton, Curtis T. Garrett,
Clinton Henson, and James W. Hawkins because of their activities on
behalf of the Union. The Trial Examiner, after examining the evi-
dence relating to the alleged discrimination against these persons,
found that Kirk & Son had not discharged or refused to reinstate
them because of their union activity and recommended that the com-,
plaint be dismissed as to them. The Union has not excepted to the
findings or recommendations of the Trial Examiner. We have ex-
reprimanded Hammond for putting too much coke in the furnace However , such test]-
mony by Dodd would have been largely immaterial in view of Dubs' statement to Hammond
that his alleged overloading of the furnace had nothing to do with his discharge.
MORRIS P. KIRK & SON, INC. 837
amined the record and agree with the conclusions of the Trial Exam-
iner. We shall consequently dismiss the complaint as to them.
IV. THE, EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above,
occurring in connection with the operations of the respondent Kirk
& Son described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondents have engaged in certain
unfair labor practices, we shall order them to cease and desist there-
from. We shall also order Kirk & Son to take certain affirmative
action designed to effectuate the policies of the Act.
We have found that Kirk & Son dominated and interfered with
the formation and administration of the Association and contributed
support to it. Although the Association was abandoned, the conduct
of the respondents in attempting to revive it points to the possibility
that it may again be brought into existence as an active labor organi-
zation. Accordingly, we shall order Kirk & Son to refrain from
recognizing it as the representative of any of its employees for the
purposes of collective bargaining.26
We have also found that all the respondents, acting in concert, have
dominated and interfered with the formation and administration of
the League and have contributed support to it. We shall, accord-
ingly, order that each of them cease and desist from these unfair labor
practices and from the conduct which resulted in their concerted vio-
lations of the Act. Thus, we shall order that Kirk & Son, who enlisted
the aid of the institutional respondents and cooperated with them in
introducing and supporting the League as an instrumentality for
defeating the rights guaranteed to its employees by the Act, and who
in other ways dominated and interfered with the formation and
administration of the League and contributed support thereto, cease
and desist from dominating and interfering with the administration
of the League and contributing support thereto and from confederat-
ing or conspiring with the institutional respondents or with any other
individual or group for similar unlawful purposes. In addition, in
order to free its employees from the continuing effects of the unfair
labor practices found, we shall order that Kirk & Son disestablish
e
26 Cf Matter of Carter Carburetor Corporation and United Automobile Workers of America,
Local 819, affiliated with the Congress of Industrial Organizations and Carter Carburetor
Workers' Cusld (Party to the contract), 39 N L R B. 1269.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completely and withdraw recognition from the League as the repre-
sentative of any of its employees for the purposes of collective bar-
gaining.27 We shall also order that the institutional respondents
who, acting directly and indirectly in the interest of Kirk & Son,
variously aided and assisted in interfering with the self- organization
of the employees of Kirk & Son by establishing and supporting the
League and directing its affairs, cease and desist from such unfair
labor practices and from the conduct which brought about the con-
certed violations.28
We have found that on or before February 6, 1939, and thereafter,
Kirk & Son refused to bargain collectively with the Union as the repre-
sentative of a majority of its employees in an appropriate unit. Al-
though on or before February 10, 1939, a substantial number of em-
ployees resigned from the Union and withdrew from it their authority
to represent them, we have found that such defections were the result
of Kirk & Son's unfair labor practices. They cannot, therefore, oper-
ate to change or nullify the prior unfettered choice of the Union as
exclusive representative. In order to effectuate the policies of the Act,
we shall order that Kirk & Son bargain collectively, upon request, with
the Union."
We have further found that Kirk & Son discharged George Ham-
mond on April 10, 1939, and thereafter refused to reinstate him, for the
reason that he joined and assisted the Union and engaged in concerted
activity for the purposes of collective bargaining and other mutual aid
and protection. We shall therefore order that Kirk & Son offer Ham-
mond immediate and full reinstatement to his former or substantially
equivalent position and make him whole for any loss of pay he has
suffered by reason of his discharge, by payment to him of a sum equal
to the amount which he would normally have earned as wages from
the date of his discharge to the date of the offer of reinstatement, less
his net earnings 3° during said period.
a
27 Although the record indicates that the League has ceased to function, no formal action
has been taken dissolving it Because of this and in view of Kirk & Son 's illegal activity
in connection with efforts to revive the Association, the League may return to existence
as an active labor organization unless Kirk & Son is ordered to disestablish it completely.
28 Although T N T became inactive in March 1939, shortly before the Service was
formed , it may nevertheless be revived by Southern Californians or any other group at
any time with respect to the Service it is clear that Rittenhouse is no longer employed
by it as a partner, but such circumstance does not operate to disable he Board from
directing an order against the partnership Cf. National Labor Relations Board v. Colten,
105 F ,(2d) 179 (C C. A. 6), enf Matter of Arthur L Colten and A J Colman Co-
partners, doing business as Kiddie Kover Manufacturing Company and Amalgamated
Clothing Toilers of America, 6 N L R. B 355
21 National Labor Relations Board v. P. Lorillard Co., 314 U. S. 512, rev. and rem National
Labor Relations Board v. P Lorillard Co , 117 F (2d) 920, with directions to enf Matter
of P. Lorillard Company, Middletown; Ohio and Pioneer Tobacco Worker S' Industrial Union
No 55, 16 N L . R. B 684.
° 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 woikmg else-
where than for Kirk & Son , which would not have been incurred but for his unlawful dis-
MORRIS P. KIRK & SON, INC. 839
On the basis of the above findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union of Mine, Mill and Smelter Workers, Local
No. 468, (C. I. O.) ; Morris P. Kirk & Son, Inc., Employees Association;
and Liberty Protective League are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. The respondents Southern Californians, Inc., The Neutral
Thousands, Glancy L. Huff and Clay C. Rittenhouse, partners, doing
business as Employees' Advisory Service, and Glancy L. Huff and
Clay C. Rittenhouse, individually, are employers of the employees in-
volved herein, within the meaning of Section 2 (2) of the Act.
3. By dominating and interfering with the formation and adminis-
tration of the Association and by contributing support to it, the re-
spondent Kirk & Son has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
4. By dominating and interfering with the formation and admin-
istration of the League and by contributing financial and other
support to it, all the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
5. By interfering with, restraining, and coercing the employees
of Kirk & Son in the exercise of the rights guaranteed in Section 7
of the Act, all the respondents have engaged in and are engaging
in unfair labor practices, within the meaning of Section 8 (1) (t
the Act.
6. By discriminating in regard to the hire and tenure of employ-
ment of George Hammond, thereby discouraging membership in
International Union of Mine, Mill and Smelter Workers, Local No.
468, affiliated with the Congress of Industrial Organizations, Kirk
& Son has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
7. The production, maintenance, machine shop, and warehouse em-
ployees of Kirk & Son at its Los Angeles plant, excluding truck driv-
ers, clerical, supervisory, laboratory, and sales employees, at all times
material herein constituted and now constitute a unit appropriate for
the purposes of collective bargaining, within the meaning of Section
9 (b) of the Act.
charge 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 2590, 8 N. L R . B. 440. Monies received for
work performed upon Federal , State , county , municipal , or other work relief projects shall
be considered as earnings . . See Republic Steel Corporation V. National Labor Relations
Board, 311 U. S. 7.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. International Union of Mine, Mill and Smelter Workers, Local
No. 468, affiliated with the Congress of Industrial Organizations, on
or about February 4, 1939, was, and at all times thereafter has been,
the exclusive representative of all employees in such unit for the
purpose of collective bargaining, within the meaning of Section 9 (a)
of the Act.
9. By refusing on or about February 6, 1939, and at all times there-
after, to bargain with International Union of Mine, Mill and Smelter
Workers, Local No. 468, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of its employees in an
appropriate unit, Kirk & Son has engaged in and is engaging in un-
fair labor practices, within the meaning of Section 8 (5) of the
Act.
10. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
11. Kirk & Son, by discharging and refusing to reinstate James G.
Burton, Curtis T. Garrett, James W. Hawkins, and Clinton Henson,
has not engaged in unfair labor practices, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that
1. Morris P. Kirk & Son, Inc., Los Angeles, California, and its
officers, agents, successors, and assigns shall :
a. Cease and desist from :
(1) Dominating or interfering with the administration of Morris
P. Kirk & Son, Inc., Employees Association and Liberty Protective
League, or with the formation or administration of any other labor
organization of its employees, and contributing support to said labor
organizations or to any other labor organization of its employees;
(2) Recognizing Morris P. Kirk & Son, Inc., Employees Association
or Liberty Protective League as the representative of any of its em-
ployees for the purpose of dealing with Morris P. Kirk & Sons, Inc.,
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(3) In any manner combining, confederating, or conspiring directly
or indirectly with, or soliciting the aid of, Southern Californians, Inc.,
The Neutral Thousands, Inc., Glancy L. Huff and Clay C. Rittenhouse,
partners, doing business as Employees Advisory Service, Glancy L.
Huff and Clay C. Rittenhouse, individually, or any other individual or
group, for the purpose of interfering with, restraining, or coercing
MORRIS P. KIRK & SON, INC. 841
its employees in the exercise of the rights guaranteed in Section 7 of
the Act ;
(4) Discouraging membership in International Union of Mine, Mill
and Smelter Workers, Local No. 468, affiliated with the Congress of
Industrial Organizations, or any other labor organization of its em-
ployees, by discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or tenure
of employment or any terms or conditions thereof;
(5) In- any other manner interfering with restraining, or coercing
its employees in the exercise of the right to self-organization to form,
join, and assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
and protection, as guaranteed in Section 7 of the Act.
b. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(1) Withdraw and withhold all recognition from Morris P. Kirk &
Son, Inc., Employees Association or Liberty Protective League as the
representative of any of its employees for the purpose of dealing with
Morris P. Kirk & Son, Inc., concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment and completely disestablish Liberty Protective League as
such representative;
(2) -Upon request, bargain collectively with International Union of
Mine, Mill and Smelter Workers, Local No. 468, affiliated with the
Congress of Industrial Organizations, as exclusive representative of
the production, maintenance, machine shop, and warehouse employees
of Morris P. Kirk & Son, Inc., at its Los-Angeles plant, excluding truck
drivers, clerical, supervisory, laboratory, and sales employees, in respect
-to rates of pay, wages, hours of employment, and other conditions of
employment ;
(3) Offer to George Hammond immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
(4) Make whole George Hammond for any loss of pay he may have
suffered as a result of the discrimination against him by payment to
him of a sum of money equal to the amount which he normally would
have earned as wages during the period from the date of such dis-
crimination to the date of the offer of reinstatement, less his net earn-
ings during such period;
(5) Post immediately, in conspicuous places in its plant, in Los
Angeles, California, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees,
stating: (a) that it will not engage in the conduct from which -it is
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered to cease and desist in paragraph 1-a (1) to ( 5), inclusive,
hereof ; (b) that it will take the affirmative action set forth in para-
graph 1-b (1) to (4), inclusive, hereof; and (c) that its employees are
free to become and remain members of International Union of Mine,
Mill and Smelter Workers, Local No. 468, and that Morris P. Kirk &
Son will not discriminate against any employee because of his mem-
bership in or activity on behalf of that organization.
2. Each of the respondents , Southern Californians , Inc., The Neutral
Thousands , Inc., Glancy L. Huff and Clay C. Rittenhouse, partners,
doing business as Employees Advisory Service, and the respective
officers, directors , partners , agents, successors , and assigns of each of
them, when acting severally, jointly, or in concert with Kirk & Son,
as agent for or in the interest of Kirk & Son, shall :
a. Cease and desist from :
(1) Dominating or interfering with the administration of Liberty
Protective League, or with the formation or administration of any
other labor organization of the employees of Kirk & Son , and from
contributing financial or other support to said Liberty Protective
League or to any other labor organization of the employees of Kirk
& Son;
(2) In any other manner interfering with, restraining , or coercing
the employees of Kirk & Son in the exercise of the right to self-organi-
zation, to form, join, or assist labor organizations , to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent Kirk & Son engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act by the discharge of James G.
Burton, Curtis T. Garrett, Clinton Henson, and James W. Hawkins
be, and it hereby is, dismissed.