Wagner Iron Works

National Labor Relations Board - Board Decisions

Apr 28, 1953

104 N.L.R.B. 445 (N.L.R.B. 1953)

WAGNER IRON WCRKS 44 5
It has been found that the Respondent has refused and is continuing to refuse to bargain
collectively with the Union as the certified exclusive representative of the employees in an
appropriate unit . The undersigned therefore shall recommend that Respondent , upon request,
bargain collectively with the Union as such representative and, in the event that an under-
standing is reached , embody such understanding in a signed agreement.
In view of the nature of the unfair labor practices committed , the commission of similar
and other unfair labor practices may be anticipated . The remedy should be coextensive with
this threat . The undersigned shall, therefore , recommend that the Respondent cease and
desist from in any manner infringing upon the rights of employees guaranteed in Section 7
of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. District Lodge 37, International Association of Machinists , AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. Armstrong & Hand , Inc., is engaged in commerce within the meaning of the Act.
3. All production and maintenance employees , including truckdrivers , of Respondent
employed at its Houston , Texas, plant, exclusive of office clerical employees, watchmen,
guards, professional employees, foundry employees , all other employees, and supervisory
employees , constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act,
4. District Lodge 37, International Association of Machinists , AFL, was on December
10, 1951 , the certified exclusive representative of all employees in the aforesaid appro-
priate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of
the Act. Respondent Armstrong & Hand , Inc., from December 19, 1951 , and at all times
thereafter , by refusing to bargain collectively with District Lodge 37, International Asso-
ciation of Machinists , AFL, has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in
unfair labor practiceq within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices within the meaning of Section
2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
WAGNER IRON WORKS, a corporation and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
WAGNER IRON WORKS, a corporation and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
and BRIDGE, STRUCTURAL & ORNAMENTAL IRON
WORKERS SHOPMEN'S LOCAL 471 (AFL), Party to. the
Contract and The "TEMPORARY COMMITTEE," Interested
Party and "THE EMPLOYEES' INDEPENDENT UNION OF
WAGNER IRON WORKS, Interested Party
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS
SHOPMEN'S LOCAL 471 (AFL), a labor organization and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, CIO. Cases Nos. 13-CA-849, 13-CA-864,
and 13-CB-148. April 28, 1953
DECISION AND ORDER
On November 6, 1952, Trial Examiner George A. Downing
issued his Intermediate Report in the above-entitled proceeding,
finding that the Respondent Company and the Respondent Union
had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondents had not engaged in
certain other unfair labor practices. Thereafter, the General
Counsel, the Respondents, and the charging Union, the CIO,
filed exceptions to the Intermediate Report and briefs.'
The Board2 has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner except as they are inconsistent with our findings,
conclusion, and Order hereinafter set forth.
1. We have examined the entire record in this proceeding
and find no merit to the contention that the Trial Examiner
was biased or prejudiced or that any party was denied a fair
hearing.
2. Based upon the facts summarized in the Intermediate
Report, section III, B, 2, we agree with the Trial Examiner
that the Respondent Company interfered with, restrained, and
coerced the employees in the exercise of rights guaranteed by
Section 7 of the Act, in violation of Section 8 (a) (1) thereof.
3. The Trial Examiner found, based upon the facts recited
fully in the Intermediate Report and therefore not repeated
here, that the Company dominated and interfered with the
formation and administration of the Temporary Committee
and the Independent Union and contributed support to them,
in violation of Section 8 (a) (2) of the Act, and recommended
that they be disestablished. We agree.' The Trial Examiner
also found that the Company dominated, interfered with,
assisted, and contributed support to Local 471, AFL, in
1 The Company' s request for oral argument is hereby denied because, in our opinion, the
record, including the exceptions and briefs , adequately presents the issues and the positions
of the parties.
2Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in
connection with this case to a three- member panel [Chairman Herzog and Members Styles
and Peterson].
3As the Temporary Committee is no longer in existence , we shall order that the Company
disestablish the Temporary Committee if it should be revived.
WAGNER IRON WORKS 447
violation of Section 8 (a) (2), and recommended that it be
disestablished.
We agree that the Company -unlawfully interfered with,
assisted, and contributed- support to the AFL. We do not agree,
however, that the Company's conduct amounted to domination
of the AFL within the meaning of Section 8 (a) (2). The Trial
Examiner based his finding of domination of the AFL largely
upon the Company's conduct in encouraging the AFL to fight
the rival CIO union by promising financial help; by furnishing
the AFL with a mailing list of employees; by printing and
distributing anti-CIO literature and falsely attributing it to
the AFL; by permitting AFL adherents to distribute literature,
wear union insignia, and solicit memberships on company
property during working hours while denying similar privi-
leges to the CIO, sometimes under threat of discharge; by
withdrawing from a consent election at the behest of the AFL;
by continuing to recognize and deal with the AFL as exclusive
representative and continuing to give effect to its contract with
the AFL after its expiration; by proposing to and using the AFL
shop committee to form the Temporary Committee as an
independent union; by participating with the AFL committee
in the formation of the Temporary Committee and the Inde-
pendent Union; and by contributing support to the last two
named labor organizations.
The foregoing conduct of the Company occurred, as is more
fully set forth in the Intermediate Report, as a result of the
CIO's effort to displace the AFL as the employees' repre-
sentative after a bargaining history of more than 14 years,
during which the AFL enjoyed status as exclusive bargaining
representative of the Company's employees under contractual
arrangements gained by reason of the AFL's own and inde-
pendent organizing efforts and resources .4 Under the circum-
stances, notwithstanding the fact that the Company unlawfully
assisted the AFL in many ways, we believe that such conduct
does not establish that the AFL was a subservient organization
to the point that the Company controlled it. Hence we conclude
that the Company did not dominate the AFL within the meaning
of Section 8 (a) (2).
As we find that the Company's unfair labor practices in this
respect were limited to interference and support and never
reached the point of domination, we shall order that the
Company only refrain from recognizing or dealing with the
AFL unless and until it shall have been certified by the Board
as the collective bargaining representative of the Company's
employees.
4. We agree with the Trial Examiner that the Company
discharged Gust John Gould and Jake Steffes because of their
4 Thus the situation with respect to the AFL is distinguishable from that of the Temporary
Committee and the Independent Union, which were brought into the plant by the Company and
existed only by reason of the Company' s unlawful support . Cf. Jack Smith Beverages, Inc.,
94 NLRB 1401, enfd. in 202 F . 2d 100 (C. A. 6); and Polynesian Arts. Inc ., 100 NLRB 658, where
the Board found nationally affiliated unions to be dominated and ordered their dises tablish-
ment upon a showing that the employer participated in their organization and supported them.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO union activities and not because of alleged drunkenness,
as more fully set forth in the Intermediate Report, and that
the Company thus violated Section 8 (a) (3) and (1) of the Act.
5. We also find , as did the Trial Examiner , that the
Company discharged Roy McMahon and Don McMahon because
of their activities or assumed activities on behalf of the CIO,
and not because of any alleged misconduct on their part, as
more fully set forth in the Intermediate Report, and that the
Company thus violated Section 8 ( a) (3) and (1) of the Act.
6. The Trial Examiner found that the Company discharged
22 night-shift workers, listed in Appendix A attached hereto,
to discourage union activity on behalf of the CIO, and thus
violated Section 8 ( a) (3) and (1) of the Act. We agree.
In general , as set forth in the Intermediate Report, the
Company did not select these 22 employees for discharge on
the basis of their individual union activity ; rather, the Company
believed that more C;O adherents were employed on the night
shift than on the day shift, and, accordingly, it discharged this
group of night - shift workers to discourage CIO union activity.
Jesus Moreno was one of the 22 discharged night-shift
workers . In the process of selecting the night - shift workers
for discharge, the Company retained all those who had seniority
status as of January 1, 1951 , except Moreno who was hired in
October 1950. The Trial Examiner found, as the record
establishes , that Moreno was "selected for termination be-
cause of prior incidents of drinking on the job." The Trial
Examiner concluded that the "discharge of Moreno ," as well
as that of the remaining 21 night-shift workers, "must also
be found to be discriminatory, since the layoff was discrimi-
natory in its conception."
On the basis of the entire record , the Trial Examiner
appears to have concluded that the Company had no legitimate
reason to discharge the 22 night - shift workers as a group;
that the Company discharged the group as a stratagem to
discourage CIO union activity; and that the Company would
not have discharged Moreno , despite his record for drinking
on the job, but for the Company's unlawful resort to the
stratagem involving the entire group . So viewed , as we view
the discharges, we find that the Company discharged Moreno,
as well as the other 21 night - shift workers, to discourage
union activity, in violation of the Act.
7. For the reasons stated in the Board ' s recent decision
in Mastro Plastics Corp ., 103 NLRB 511 , and in the Inter-
mediate Report in the instant case , we agree with the Trial
Examiner that the alleged breach of the no-strike clause in
the AFL's contract did not afford a defense to the Company's
discharge and refusal to reinstate the 57 striking employees
listed in Appendix B hereto , and that the Company thereby
violated Section 8 (a) (3) and (1) of the Act.5
SDavid Horgan 's name is listed in Appendix B. Horgan. Wesley Bajanen. Ervin Kusz, and
Alexis Sobczak were discharged, as were the other strikers listed in Appendix B, on June 22.
1951 . because they were strikers . At the end of the strike, the Company offered to reemploy
Horgan, but he refined because the Company insisted that he sign an application as a new em-
WAGNER IRON WORKS 449
The Trial Examiner rejected the Company' s defense , namely,
that it was justified in severing the employment of the strikers
because the strikers did not observe the no - strike clause, on
the grounds (1) that the terms of the contract did not contem-
plate, as within the no-strike clause, a strike caused by the
employer ' s unfair labor practices ; and (2 ) that, as a matter
of law, an employer cannot invoke such a defense where the
strike is provoked by his own flagrant unfair labor practices.
Although the Trial Examiner thus rejected the Company's
defense based upon alleged violation of the no - strike clause,
the Trial Examiner also considered alternative bases urged
by the General Counsel as reasons for rejecting this defense.
Thus, the General Counsel urged that the Company could not
rely on the no-strike clause because the contract was with an
illegally assisted and dominated union and because the Company
had itself been guilty of prior breaches of the contract and had
abandoned the contract . The General Counsel has excepted to
the Examiner ' s finding that there was no merit to these
alternative grounds . In view of our decision herein, we need
not and do not pass on the validity of these alternative bases
urged by the General Counsel as reason for rejecting the
Company' s defense based upon alleged violation of the no - strike
clause.
The Trial Examiner also rejected the Company ' s defense
that the strikers lost their employee status and thus became
vulnerable to discharge because the strike occurred within
the 60 -day period prescribed in Section 8 (d) of the Act. The
Trial Examiner concluded that this defense had no merit for
two reasons : (1) The strike was called by the CIO, who was
not a party to the contract ;' and (2 ) Section 8 '(d) applies only
to strikes to terminate or to secure a modification of inter-
pretation of a collective -bargaining contract , and not to an
unfair labor practice strike, as this was. We agree .6 Moreover,
the record shows that the AFL gave the requisite notice of
termination of the existing contract by letter dated April 5,
1951 , and that the strike in this case did not begin until June
20, 1951 . Thus, although the contract did not expire until June
30, 1951, the strike did not occur until after expiration of the
60-day period prescribed by Section 8 (d).t For this additional
reason, we reject the Company' s defense referred to above in
this paragraph.
8. Like the Trial Examiner , we find that the Respondent
Union violated Section 8 (b) (1) (A) of the Act by the conduct
set forth in the Intermediate Report, section III ; C, paragraph 2.
ployee• The Company reemployed Bajanen. Kusz, and Sobczak after the strike was over, but
they quit after working a few days because the Company insisted that they sign applications as
new employees. We agree with the Trial Examiner that the Company constructively discharged
Horgan, Bajanen, Kusz, and Sobczak, in violation of Section 8 (a) (3) and (1) of the Act, on the
respective dates specified in the intermediate Report.
6 While Chairman Herzog dissented from this holding in Mastro Plastic Corp .. s r be
deems "elf bound by the majority opinion in that case.
Wilson & Co., 89 NLRB 310.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9. Finally, we find, as did the Trial Examiner, that the
Respondent Union attempted to cause and did cause the Company
to discharge Roy McMahon and Don McMahon because of their
real or assumed membership in and support of the CIO, thereby
causing and attempting to cause the Company to discriminate
against' these two employees in violation of Section 8 (a) (3)
of the Act, and that by such conduct the Respondent Union
engaged in unfair labor practices in violation of Section
8 (b) (2) and 8 (b) (1) (A) of the Act.
To remedy these unfair labor practices, the Trial Examiner
recommended that: (1) The Respondent Union be directed to
make whole Don McMahon and Roy McMahon for loss of pay
suffered by reason of the discrimination against them; and
(2) the Respondent Union be ordered to advise the Company
in writing that the Respondent Union has no objection to the
reinstatement of Don McMahon and Roy McMahon. However,
the record discloses that by letter, which the Company received
on June 30, 1952, the Respondent Union advised the Company
that the Union had no objection to the reinstatement of the
McMahons. Accordingly, we shall limit the Respondent Union's
liability for back pay with respect to the McMahons to the
period from the date of their discriminatory discharge to
June 30, 1952; and we shall not order the Respondent Union
to advise the Company that the Union has no objection to the
reinstatement of the McMahons.
ORDER
Upon, the entire 'record in-the 'base and pursuant to Section
10 „(c) of the National Labor Relations Act, as amended, the
National Labor Relations BoardA hereby orders that:
A. The Respondent, Wagner Iron Works, a corporation,
Milwaukee, Wisconsin, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or adminis-
tration of or contributing financial or other support to the
Temporary Committee, the Independent Union, or any other
labor organization.
(b) Contributing financial or other support to Bridge, Struc-
tural & Ornamental Iron Workers Shopmen's Local 471 (AFL),
or to any other labor organization.
(c) Recognizing the Temporary Committee, should it be
revived, or the Independent Union, or any successor thereto
as the representative of any of its employees for the purpose
of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment.
(d) Recognizing Bridge, Structural & Ornamental Iron
Workers Shopmen's Local 471 (AFL) as the representative of
any of its employees for the purpose of dealing with it concern-
ing grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and perform-
WAGNER IRON WORKS 451
ing or giving effect to any contract with Local 471, or any
successor thereto, unless and until Bridge, Structural &
Ornamental Iron Workers Shopmen's Local 471 (AFL) shall
have been certified as such representative by the Board.
(e) Discouraging membership in UAW- CIO, or encouraging
membership in Local 471, or in any other labor organization
of its employees, by discriminatorily discharging or refusing
to reinstate any of its employees, or by discriminating in any
other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(f) Engaging in surveillance of its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
UAW-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid and protection, or to
refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Withdraw all recognition from, and completely dises-
tablish, the Temporary Committee should it be revived, and
the Independent Union, as the representative or representatives
of its employees for the purpose of dealing with it concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
(b) Withdraw all recognition from Bridge, Structural &
Ornamental Iron Workers Shopmen's Local 471 (AFL) as the
representative of any of its employees for the purpose of
dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment, unless and until the said Local 471 shall have
been certified as such representative by the Board.
(c) Offer to Gust John Gould, Jacob Steffes, Roy McMahon,
Don McMahon, Wesley Bajanen, Ervin Kusz, and Alexis
Sobczak, to the 22 employees whose names are listed in Appen-
dix A hereto, and to the 57 employees whose names are listed in
Appendix B hereto, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by
payment to each of them of a sum of money equal to the
amount each normally would have earned as wages from the
date of said discrimination to the date of the offer of rein-
statement , less his net earnings during said period ( Crossett
Lumber Company, 8 NLRB 440, 497-98), said back pay to be
computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289.
(d) Post at its plant at Milwaukee, Wisconsin, copies of the
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice attached hereto and marked "Appendix C."' Copies of
said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall , after being duly signed by Respondent
Company's representative , be posted by Respondent Company
immediately upon receipt thereof and maintained by it for
sixty ( 60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent Company
to insure that said notices are not altered , deface d, or covered
by any other material.
(e) Notify the Regional Director for. the Thirteenth Region,
in writing , within ten (10) days from the date of this Order,
what steps the Respondent Company has taken to comply here-
with.
B. The Respondent, Bridge, Structural & Ornamental Iron
Workers Shopmen's Local 471 (AFL), its officers, representa-
tives, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Restraining and coercing employees 'of Respondent Com-
pany, its successors and assigns , in the exercise of the rights
guaranteed them in Section 7 of the Act by threatening to
request their discharge for failure to pay dues to it, except
as provided in Section 8 (a) (3) of the Act.
(b) Causing or attempting to cause the Respondent Company,
its successors and assigns , to discriminate against employees
in violation of Section 8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees of
Respondent Company, its successors and assigns , in the exer-
cise of. the right to self- organization , to form, join, or assist
labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all
of such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Make whole Don McMahon and Roy McMahon for any
loss of pay suffered by them by reason of the discrimination
against them , in the manner set forth in the Decision and
Order herein.
(b) Post in conspicuous places in its offices in Milwaukee,
Wisconsin , and such other places as notices to members are
customarily posted, copies of the notice attached hereto as
Appendix D.' Copies of said notice , to be furnished by the
Regional Director for the Thirteenth Region, shall , after being
duly signed by an official representative of Respondent Union,
•In the event that this order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
'See footnote 8. st^ra
WAGNER IRON WORKS 453
be posted 'by it immediately upon receipt thereof and be
maintained by it for a period of not less than sixty (60)
consecutive days thereafter in the aforementioned places.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for the Thirteenth Region
signed copies of the notice attached hereto as Appendix D,
fob posting in- the plant of Respondent Company in Milwaukee,
Wisconsin, in the places where notices to employees are
customarily posted, in the event that said employer may wish
to post the notices. Copies of said notices, to be furnished by
the Regional Director for the said Thirteenth Region, shall,
after having been signed as prescribed in the preceding
paragraph of this Order, be forthwith returned to the Regional
Director for such posting by Respondent Company.
(d) Notify the Regional Director for the Thirteenth Region,
in writing, within ten (10) days from the date of this Order,
what steps the Respondent Union has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed (1) insofar as it alleges that the
Respondent Company violated the Act by dominating Local
471, AFL, and by discharging Frank Smejkel, Kenneth Boyer,
Harold Blink, Anthony Galaska, Lawrence Houston, Walter
Koehler, Marvin Markestad, William Packard, Theodore
Wanick, and Ralph Welter; and (2) insofar as the complaint
alleges that the Respondent Company and the Respondent Union
violated the Act by executing , maintaining , and enforcing a
collective -bargaining contract illegally requiring union mem-
bership as a condition of employment.
APPENDIX A
Frank Ackerman
Palmer Barthelmews
Harold Case
Arthur G. Ebbinger
Gordon Fuller
Thomas Gallian
Grace Aurelio
Ignatz Gonia
Reuben Hilliard
Sam Johnson
Leon Keierleber
Arthur Lewark
Alvin Lindeman
Kenneth Little
Louis Machnik
Jesus Moreno
Dolor Muyleart
Merlin Olson
Loren Pitts
Bernard N . Shaurette
Allen Vogt
B. Orville Ward
283230 0 - 54 - 30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Allison
Curtis Barbian
Donald Barbian
Russell Bestul
Keith Burdick
Joseph Bolcerek
James Corsentino
Jerome Czysz
James Dais
Bernard Daubon
Floyd Defenbough
Wayne Defenbough
Alvin DeGrave
Willard Dent
Stannard Doxtater
Roman Fabich
William Fronimadis
Arthur Golding
Walter Griefenhagen
Eugene Groh
Reuben Hamari
Anthony Hendricks
Arthur Hofner
David Horgan
Robert Jackson
Roger Kearns
Kenneth Knoll
Robert Krueger
James La Mora
APPENDIX B
Marvin Lueptow
•Corlyss Miller
Lawrence Mueller
Myron Nelson
Boleslaus Nowakowski
Emil Opai se r
Arvin Pace
Raymond Pattenge
Orville Peak
David Perry
Russell Pruitt
Harold Reedich
Joseph Remillard
Vernon Rodd
Gregory Salazar
Erold Sasse
Harold Schwamb
Gerald Skorlinski
Stanley Skorlinski
John Stachera
Joseph Sulik
Harold Techmeier
Reynaldo Valdovinos
Joseph Wachowiak
Raymond Walsh
Norman Wittig
Ramon Witz
Henry Wiza
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT dominate, assist, foster, contribute
support to , or in any manner interfere with the formation
or administration of the Temporary Committee, or The
Employees ' Independent Union of Wagner Iron Works, or
of any other labor organization of our employees.
WE WILL NOT contribute financial or other support to
Bridge, Structural & Ornamental Iron Workers Shopmen's
Local 471 (AFL), or any other labor organization.
WE WILL NOT recognize the Temporary Committee,
or the Employees' Independent Union of Wagner Iron
Works as the representative of any of our employees for
the purpose of dealing with us concerning grievances,
WAGNER IRON WORKS 455
labor disputes , wages, rates of pay, hours of employment,
or other conditions of employment.
WE WILL NOT recognize Bridge, Structural & Orna-
mental Iron Workers Shopmen ' s Local 471 (AFL) as the
representative of our employees for the purpose of dealing
with us concerning grievances , labor disputes , wages,
rates of pay, hours of employment , or other conditions of
employment , unless and until Local 471 shall have been
certified as such representative by the Board.
WE WILL NOT discourage membership in International
Union, United Automobile , Aircraft and Agricultural Im-
plement Workers of America, CIO, or encourage mem-
bership in Bridge , Structural & Ornamental Iron Workers
Shopmen's Local 471(AFL), or the Employees ' Independent
Union of Wagner Iron Works, or in any other labor
organization of our employees , by discharging or refusing
to reinstate any of our employees , or in any other manner
discriminating against them in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or
assist International Union, United Automobile , Aircraft
and Agricultural Implement Workers of America , CIO, or
any other labor organization , to bargain - collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment , as authorized in Section 8 (a) (3) of the Act.
WE HEREBY withdraw recognition from and completely
disestablish the Temporary Committee, should it be
revived, and the Employees ' Independent Union of Wagner
Iron Works as the representative of any of our employees
for the purposes of dealing with us concerning grievances,
labor disputes , wages, rates of pay, hours of employment,
or other conditions of employment.
WE WILL offer to the 86 employees whose names are
listed below immediate and full reinstatement to their
former or to substantially equivalent positions without
prejudice to their seniority and other rights and privileges
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them:
Gust John Gould
Jacob Steffes
Roy McMahon
Don McMahon
Wesley Bajanen
Ervin Kusz
David Horgan
Alexis Sobczak
Frank Ackerman
Palmer Barthelmews
Harold Case
Arthur G. Ebbinger
Gordon Fuller
Thomas Gallian
Aurelio Grace
Ignatz Gonia
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reuben Hilliard
Sam Johnson
Leon Keierleber
Arthur Lewark
Alvin Linderman
Kenneth Little
Louis Machnik
Jesus Moreno
Dolor Muyleart
Merlin Olson
Loren Pitts
Bernard H . Shaurette
Allen Vogt
B. Orville Ward
James Allison
Curtis Barbian
Donald Barbian
Russell Bestul
Keith Burdick
Joseph Bolcerek
James Corsentino
Jerome Czysz
James Dais
Bernard Daubon
Lloyd Defenbough
Wayne Defenbough
Alvin DeGrave
Willard Dent
Stannard Doxtater
Roman Fabich
William Fronimadis
Arthur Golding
Walter Griefenhagen
Eugene Groh
Reuben Hamari
Anthony Hendricks
Arthur Hofner
Jospeh Wachowiak
Robert Jackson
Roger Kearns
Kenneth Knoll
Robert Krueger
James La Mora
Marvin Lueptow
Corlyss Miller
Lawrence Mueller
Myron Nelson
Boleslaus Nowakowski
Emil Opaiser
Arvin Pace
Raymond Pattenge
Orville Peak
David Perry
Russell Pruitt
Harold Reedich
Jospeh Remillard
Vernon Rodd
Gregory Salazar
Erold Sasse
Harold Schwamb
Gerald Skorlinski
Stanley Skorlinski
John Stachera
Joseph Sulik
Harold Techmeier
Reynaldo Valdovinos
Raymond Walsh
Norman Wittig
Ramon Witz
Henry Wiza
WAGNER IRON WORKS,
Employer.
Dated ................ By..................................
.
................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced , or covered by any
other material.
APPENDIX D
NOTICE TO ALL MEMBERS OF BRIDGE,
STRUCTURAL & ORNAMENTAL IRON WORKERS
SHOPMEN'S LOCAL 471 (AFL)
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify you that:
WAGNER IRON WORKS. 457
'WE WILL NOT restrain or coerce employees of the
Wagner Iron Works, their successors or assigns, in the
exercise of the rights guaranteed them in Section 7 of the
Act by threatening to request their discharge for their
failure to pay dues to the undersigned union , except in
accordance with Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the Wagner
Iron Works , its agents , successors , or assigns , to dis-
criminate against its employees in violation of Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce
employees of Wagner Iron Works , its successors and
assigns, in the exercise of their right to self - organization,
to form, join, or assist International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection
or to refrain from any or all of such activities , except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL make Roy McMahon and Don McMahon whole
for loss of pay suffered bythemby reason of the discrimi-
nation against them.
BRIDGE , STRUCTURAL & ORNAMENTAL IRON
WORKERS SHOPMEN 'S LOCAL 471 (AFL),
Labor Organization.
Dated ................ By ......................... ........................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These proceedings , brought under Section 10 (b) of the National Labor Relations Act, as
amended (61 Stat . 136), and consolidated by order of the Regional Director for the Thirteenth
Region, were heard in Milwaukee . Wisconsin, on various dates from April 21 to July 7,
1952, inclusive , pursuant ' to due notice to all parties The consolidated complaint , issued on
March 11, 1952 , by the General Counsel of the National Labor Relations Board ' and based on
charges duly filed and served , alleged in substance that:
The General Counsel and his representatives at the hearing are referred to as the
General Counsel and the National Labor Relations Board as the Board . The Respondent
Company is referred to as the Company and as Wagner , Respondent Union as AFL and as
Local '471, and the charging Union as CIO and as UAW -CIO. The interested parties are
referred to, respectively , as the Temporary Committee and as the independent.
The summary of the pleadings herein conforms to and includes various amendments made
during the course of the hearing. All events , unless otherwise specified , occured in 1951.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Respondent Company had, since May 1951, engaged in unfair labor practices proscribed
by Section 8 (a) (1), (2), and (3) of the Act by (a) a planned and continuous course of conduct, in-
cluding various specified acts, by which it assisted, interfered with, fostered, and dominated
Local 471, and subsequently the Temporary Committee and the Independent Union; (b) dis-
criminatorily discharging, because of their CIO membership and activities, Gust John Gould
and Jake Steffes on May 28, Roy McMahon and Don McMahon on June 4. and Frank Smejkel
on June 19; discriminatorily laying off and discharging 22 employees (see.Appendix A) on
the night shift on June 4; discriminatorily discharging on June 27, 66 employees 2 who had
engaged in a strike called by CIO on June 20; constructively discharging David Horgan on
June 27, Wesley Bajanen and Ervin Kusz on July 3, and Alexis Sobczak on July 7; and engag-
ing in further discrimination by maintaining and enforcing with Local 471 a collective-
bargaining agreement which failed to grant to all new employees a period of 30 days' freedom
following the beginning of their employment for acquiring and maintaining membership in that
Union; and (c) engaging in numerous other specified acts of interference, restraint, and
coercion.
(2) Respondent Union had, since May 1951, engaged in unfair labor practices proscribed by
Section 8 (b) (1) (A) and 8 (b) (2) by (a) causing and attempting to cause the Company to dis-
charge discriminatorily Don and Roy McMahon; (b) maintaining and enforcing with the
Company the collective- bargaining agreement referred to above; (c) threatening employees
with discharge by the Company unless they paid dues to Respondent Union; and (d) attempting
physically to rip CIO insignia from employees.
The Company by its answer denied the commission of the various unfair labor practices
as alleged. For a separate defense, it pleaded that the strike called by CIO on June 20 was
in spite of a valid no-strike clause in an existing contract with Local 471 (which had received
a certification by the Board under Section 9), and was to force the Company to bargain with
CIO, and that the strike therefore constituted an unprotected activity and also constituted
an unfair labor practice under Section 8 (b) (4) (C) of the Act. Local 471 by its answer also
denied engaging in the unfair labor practices charged against it in the complaint.
All parties except the Temporary Committee were represented at the hearing by counsel
or by representatives and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and
proposed findings and conclusions. On April 29, 1952, permission was granted to the General
Counsel to amend the complaint to join as interested parties the Temporary Committee and
the Independent Union, and the hearing was thereupon recessed to May 13, pending the service
of appropriate notices of hearing and copies of the consolidated complaint and charges
upon the new parties. 3
Upon resumption of the hearing on May 13, Stephen Scherba appeared specially for the
Independent for the sole purpose of objecting to the Board's jurisdiction. He asserted lack of
due process on grounds substantially equivalent to those previously asserted by the Company
(see footnote 3. supr), urged that the Trial Examiner lacked power to order the joinder or
interpleader of new parties, particularly at an intermediate point in the proceedings, and that
the attempted interpleader of the independent at the then existing stage of the proceedings
was highly prejudicial to its rights and constituted a denial of due process.
The General Counsel in response referred to his earlier offers to make available to
Scherba a transcript of the record and to recall for cross-examination any or all of the
witnesses who had previously testified The General Counsel also stated his position that the
new parties were joined in order to give them an opportunity to appear and, if they chose,
protect any rights they might have in the proceedings, that the new parties, though properly
joined, were not necessary parties because they were not parties to the contracts and that
2 The 57 whose names are listed in Appendix B. hereto, plus Kenneth Beyer, Harold Blink,
Anthony Galaska, Lawrence Houston, Walter Koehler, Marvin Markesiad, William Packard,
Theodore Wanick, and Ralph Welter.
3 Respondent Company objected to the amendment for joinder of additional parties as
improper under the Act and the Board's Regulations and as a denial of due process to all
parties, urging that the filing of charges , the making of an investigation , and the issuance
of a complaint were prerequisites to the naming of parties to an unfair labor practice
proceeding . Its objections-were overruled. See cases cited at footnote 4, infra.
4Compare Consolidated; Edison Company, v. N. L. R, B., 305 U. S. 197, with N. L. R. B.
v. Pennsylvania Greyhound Lines,- 303 U. S. 261; Pittsburgh Plate Glass Company v
N. L. P. B., 313 U. S. 146; National licorice Company v. N. L. R. B., 309 U. S. 350, 366-7;
and see N. L. R B. v. Ind. & Mich. Electric Co., 124 F. 2d 50 (C. A. 6). Also see Parker
Brothers and Company, Inc., 39-CA-141, remand order dated October 22, 1951, and Otis
Elevator Company. 7-CA-343, remand order dated March 15, 1951.
WAGNER IRON WORKS 459
though he might, if he chose , dismiss them, he chose not to . Scherba withdrew from the
hearing and did not participate further in the proceedings.
Prior to the recess on April 29 , 1952, the General Counsel ' s trial representatives entered
into a settlement stipulation with Respondent Union of all matters involved in Case No.
13-CB- 148, which provided for Board approval and for the entry of a decree by a circuit
court of appeals thereon . The stipulation expressly recited that it was made subject to ap-
proval by the Board and that it was to be of no force and effect until Board approval was
obtained . The Examiner ordered that the stipulation be transmitted to the Board . See State-
ments of Procedure , section 101 . 9. Thereafter , the General Counsel endeavored to refrain
from the presentation of further evidence directly relating to Case No. 13-CB - 148. except such
as was also relevant to the case against the Company.
On June 20 , the General Counsel' s representative formally announced that the settlement
stipulation had not been approved by the General Counsel ' s office in Washington . Counsel
for Respondent Union were informed on the record that the General Counsel would make
available to them a transcript of the evidence taken subsequent to April 29 (since which date
the Union' s counsel had not participated in the hearing), that the hearing , insofar as Case
No. 13-CB - 148, was concerned , would be continued until Respondent Union had full op-
portunity to present its witnesses and evidence, and that it might also recall for further
cross-examination any or all witnesses whose testimony had related to Case No . 13-CB-148.
Thereupon , on agreement of all parties , the hearing in Case No. 13-CB - 148 was recessed to
July 7, 1952.
Upon the resumption of the hearing on July 7 , Respondent Union filed an amended answer
which may be briefly summarized as follows : After incorporating all averments of its original
answer , it pleaded " by way of accord and satisfaction and estoppel" the settlement stipulation
previously entered into with the General Counsel's representatives; that in reliance thereon and
on the General Counsel ' s assurances of approval, its counsel had withdrawn from the hearing,
which thereafter proceeded until June 23 without participation by the Union , though with
testimony given by its officers and agents called by the General Counsel for examination
under Rule 43-b of the Federal Rules of Civil Procedure , that the dilatory treatment and
delayed disapproval of the settlement agreement had effectively deprived the Union of due
process of law and of the equal protection of the laws in that , with the entire case against it
completed , it was impossible to prepare and present a proper defense
The answer concluded with the prayer that the Board enter an order consistent with the
settlement stipulation, and that it dismiss so much of the complaint as was inconsistent
therewith ; and the Union ' s counsel also moved orally for a final order or decision in ac-
cordance with that prayer . During ensuing argument, the General Counsel represented that
he did not propose to request an order against the Union broader than that contained in the
settlement stipulation , with the exception of the provision which had limited the liability of
the Union for back pay to certain dischargees to the payment of a flat sum of $300. The
Examiner reserved ruling on the motion. and the hearing was concluded shortly thereafter
upon the submission of brief additional evidence concerning the 8 (b) (1) (A) and the 8 (b) (2)
allegations of the complaint.
The Company objected to that testimony in view of the prior resting of the CA cases, and it
also urges in its brief that it was irreparably damaged by the continuation of the hearing on
the assumption that the CB case had been settled and by the resurrection of that case in the
closing hours of the hearing , and that the continuation of the hearing under the circumstances
resulted in denial of due process as to it . Those contentions are based mainly on the fact that
during the period when the settlement agreement was under consideration in Washington, the
General Counsel was permitted to examine Thomas Handon and Charles F . Waldow under 43-b
of the Federal Rules of Civil Procedure in the absence of counsel for the Respondent Union,
who had withdrawn from the hearing.
The Company also urges that the Trial Examiner presently remedy the asserted denial of
due process by (1) disregarding the testimonyofHandon and Waldow insofar as it was adduced
over its objections , and the testimony of the witnesses who testified on the final day of the
hearing , and (2) by dismissing the complaint with respect to the 8 (a) (2) violations and with
respect to the 8 (a) (3) violations in regard to the discharge of the McMahons.
There was certainly no denial of due process as to the Company because of the examination
of the Union ' s representatives after the Union's counsel had chosen to withdraw from the
hearing. Though all parties may well have assumed that the settlement stipulation would be
approved , yet it expressly recited that it was subject to Board approval and was to be without
B The recommendations herein on the CB case are in substantial accord with the settlement
stipulation , save that the Union ' s liability for back pay has not been limited . See H. M.
Newman , 85 NLRB 725, 732.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect until such approval was obtained . The Union , therefore , obviously remained a party to
the proceeding , and the voluntary withdrawal from the hearing by the Union's experienced
labor counselor could affect neither the Union 's status as a party nor the General Counsel's
right to adduce evidence in support of his consolidated complaint.
It is pertinent to state, however , that the testimony taken on the last day of the hearing
has been considered only in making findings on the CB case against the Union . The Handon-
Waldow testimony has been considered fully insofar as it is relevant to both .eases . Much of
Handon' s testimony was taken without objection by the Company , and much that he and Waldow
testified to was cumulative and was corroborated by other evidence.
All parties (except the Temporary Committee) were represented at the hearing by-counsel,
were afforded full opportunity to be heard , to examine and cross - examine witnesses, to
introduce relevant evidence , to argue orally , and to file briefs and proposed findings and
conclusions . Upon conclusion of the hearing on July 7, the case was argued orally by the
General Counsel and by company counsel . Company counsel also moved to dismiss the com-
plaint in its entirety as well as any portion thereof which was not supported by the evidence.
Ruling was reserved ; the motion is disposed of by the findings and conclusions herein. Briefs
have been filed by the General Counsel and by the Respondent Company.•
Upon the entire record in the case , and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE RESPONDENT
Wagner Iron Works is a Wisconsin corporation with its office and plant at Milwaukee.
Wisconsin , where it is engaged in the business of the fabrication and sale of metal . During
the calendar year 1951 , it purchased raw materials valued in excess of $250 ,000, of which
more than $100,000 were shipped to it from extrastate points . During the same year the
Company's sales exceeded $ 2,000,000, more than 90 percent of which was shipped by it to
extrastate points. The Company is, therefore , engaged in interstate commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 471 and UAW-CIO are labor organizations within the meaning of the Act. It is also
found, on the basis of the evidence summarized infra , section III A, 11 and 12, that the Tem-
porary Committee and the Independent Union are labor organizations within the meaning of
the Act. Cf. Indiana Metal Products Corp., 100 NLRB 1040.
eContpany counsel made frequent references during the hearing to charges which the
Company had filed against CIO, urging that the Company ' s rights were somehow prejudiced
by the handling and disposition of those charges and by the failure of the General Counsel
and/or the Board to consolidate and hear that case with the present cases . Cf. N. L. R. B,
v. Donnelly Garment Co ., 330 U. S. 219, 233-6. The facts concerning those charges will
therefore be briefly stated.
On June 25, 1951, the Company forwarded to the Chicago Regional Office charges against
UAW-CIO alleging violations of Section 8 (b) (1) (A) through various threats against employees
made on June 5, 7, 12, and 15 , and through other threats made on the picket line after the
strike began on June 20 . On those charges , filed under Case No. 13-CB - 144, the General
Counsel issued a complaint on March 18 , 1952, and the hearing was scheduled for the same
time and place as the hearing in the present proceeding , i e., April 21 , though the case was
not assigned to a Trial Examiner . However , on April 8, 1952, a settlement stipulation was
entered into between the General Counsel and the UAW - CIO (the Company not joining therein),
which was subject to the approval of the Board and which provided for the entry of a cease-
and-desist order by the Board against UAW -CIO, for the posting of notices, and for the entry
of a decree by a United States court of appeals enforcing the Order of the Board.
On June 10, 1952 , the Board issued its Decision and Order in said case, approving the
stipulation and entering the order which had been agreed upon . Subsequently , on June 24,
the Board petitioned the -Court of Appeals for the Seventh Circuit for enforcement of its
order , and enforcement was granted on July 8, 1952.
Company counsel failed to specify any respect in which the Company ' s defenses to the
present proceeding or the presentation of relevant evidence were prejudiced in any manner.
To the contrary , the Company was repeatedly assured and extended full opportunities for
presenting any evidence concerning those charges insofar as relevant to its defenses and to
the issues herein.
WAGNER IRON WORKS 461
In. THE UNFAIR LABOR PRACTICES
A. The evidence
1. Introduction; synopsis of main events; the supervisors
The Wagner Company has been in existence for more than 100 years. Its managing officers,
during periods pertinent hereto, were A. A. Wagner, president, A. J. Werner, vice president,
and Joseph Dyskow, plant superintendent.
For some 14 years the Company had recognized Local 471 as the bargaining agent of its
employees and had entered into a series of collective-bargaining agreements with that union
whose officials were, so far as relevant hereto, Charles F. Waldow, business agent and
financial secretary, and William J. Modell and Elmer Kornberger, general organizer and
special representative, respectively, of the international union. The most recent contract,
dated July 1, 1950, contained a union-security clause and a no-strike clause and provided
for a 1-year term, to be automatically renewable from year to year unless terminated by 60
days' notice prior to the anniversary date. On April 5, 1951, Local 471 gave notice of termi-
nation as of June 30 and of its desire to negotiate a new contract.
Sometime in May there ateose among some of the employees a feeling of dissatisfaction
with their representation by the AFL local, as a result of which certain employees sought out
UAW-CIO, which began a membership drive the latter part of May On May 31 the UAW-
CIO filed a representation petition with the Board's Regional Office in Chicago, under Case
No. 13-RC-2021, and on June 6 a consent-election agreement was entered into between the
Company, AFL, and CIO, which provided for an election on June 18. Thereupon a spirited
campaign ensued between AFL and CIO.
On June 15 the Company withdrew its consent to the election, and the CIO adherents struck
on June 20. AFL thereupon gave the strikers notice, in the form prescribed by the contract,
that their action was unauthorized, and ordered them to return to work. On or about June 22,
the Company formally notified many of the strikers that their employment was terminated
because of their violation of the no-strike clause. The strike was ended on June 27; the
Company reinstated some of the strikers, but refused reinstatement to most of them.
The General Counsel offered testimony, some of which was controverted and some not, 7 that
beginning shortly after the inception of the CIO membership drive, the Company embarked
upon a campaign to discourage CIO membership, during the course of which it engaged in
numerous alleged acts of interference , restraint , and coercion , of assistance and support to
AFL, and a series of discriminatory discharges, some of which were allegedly made at the
behest of AFL.
Evidence was also offered, largely undenied, that following the strike the Company con-
tinued its assistance and support of the AFL local until January 1952, and that thereafter the
Company sponsored, assisted, supported, and dominated the Temporary Committee and the
Independent Union.
Since an understanding of the significance of various events will be facilitated by a resolu-
tion of the status of the Company's supervisors, the issues concerning them will be disposed
of preliminary to a summary of the evidence.
In addition to Wagner, Werner, and Dyskow, other conceded members of the Company's
suprvisory staff were Thomas Schnuck, night superintendent and assistant superintendent,
Mike Banaszak , assistant superintendent , and George Golner, Walter Bartsch, and Chester
Goetz, foremen. An issue was presented as to the supervisory status of Foremen Tony
Dobrangky, Stanley Wotta, Wayne Beck, and Eric Ewald, by whom the complaint also charged
the commission by the Company of various unfair labor practices. The Company contended
that they were no more than working foremen or group leaders, who were without the requisite
authority to qualify for supervisory status. Indeed, the Company had maintained a similar
7 The Company offered no evidence to rebut the testimony of the General Counsel's wit-
nesses on a number of important issues . It explains in Its brief that it chose that course
because of its labor relations policy not to call employees presently in the employ of the
Company and because of its reliance on the inconsistencies and inherent improbabilities of
the testimony of the General Counsel's witnesses.
Though a certain degree of inconsistency and conflict developed , as was only natural in
view of the large number of witnesses put on by the General Counsel, much of the testimony
was mutually corroborative on matters which were significant and important; and in its
cumulative weight , it was overwhelming.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention as to Bartsch until his testimony , late in the hearing , conclusively established his
supervisory authority.
The evidence establishes that the working foremen regularly attended foremen ' s meetings
at which were discussed such subjects as plant production , materials , supplies , and the extent
of the foreman ' s power and authority over employees . Thus, Robert Krueger , who was a
welding foreman until about June 11, testified , without denial , that the foremen were informed
by Dyskow during the meetings that although they could not hire employees , they could recom-
mend discharges , and that if they wanted to fire an employee , they could do so by sending
him to Dyskow ' s office with the recommendation that he be discharged , and that the recom-
mendation would be acted upon and carried out.
The extent of the foremen's control over the employees in their departments was well
illustrated by Schnuck 's testimony as to Bartsch's authority . Bartsch was foreman on the
bucket line on the night shift under Golner and Schnuck . Although Bartsch was a working
foreman and did welding along with the employees. Schnuck testified that Bartsch had com-
plete control over the employees in directing their work , assigning them to their jobs, and
transferring them within the department , and that Bartsch also could make effective recom-
mendations covering promotions and pay raises . Bartsch ' s own testimony disclosed that he
could recommend discipline, and that he had effectively done so.
This evidence was sufficient to establish the status of the foremen as supervisors;8 but
even if it did not, yet it disclosed that the status occupied by the foremen was such that
their acts are attributable to the Company. Thus, the foremen not only exercised substantial
authority over subordinate employees , but were in a strategic position to translate the
policies and desires of management to those employees . Consequently their positions identified
them with management in such a way as to cause the employees to look to them for guidance
regarding the Company's policies. Harrison Sheet Steel Co., 94 NLRB 81, enfd. 194 F. 2d 407
(C. A. 7), and cases cited.
A question remains as to the status of Wayne Beck prior to the time he succeeded Krueger
as foreman on or about June 11. Werner testified that Beck was originally employed on a
special assignment to check and to report on a slowdown of production, that Beck was placed
among the welders , that he made nightly reports direct to Werner , and that he uncovered the
program of planned production for which one Larsen and four other employees had been
discharged early in May Beck then requested and was given regular work as a permanent
employee.
Werner also testified that:
Q. In respect to Mr . Beck's special assignment , did he not also report to you concern-
ing CIO activities?
A. Yes, CIO and AFL.
In subsequent testimony Werner attempted to.qualify that unequivocal admission . Thus, he
later denied that it was any part of Beck ' s duties to report to him on AFL and CIO activities,
but he admitted that Beck had conferred with him early in June concerning the question whether
Beck should join AFL or CIO (having been invited to join both unions ); that Werner suggested
that Beck go to meetings of both unions " to see what they had to say"; and that Beck later
reported to Werner that he had attended CIO meetings and signed an application card but had
later changed his mind. Other evidence , later to be adverted to, included Werner's open claims
in meetings with employees that he had " loyal employees" who were reporting to him what
was going on in connection with CIO activities. In view of Werner' s entire testimony, those
references must certainly be presumed to have included Beck.
Nor was there evidence that the original nature of Beck ' s employment was unknown to the
employees . Any secrecy concerning his activities must certainly have been dissipated by his
expose of Larsen, et al., and by their discharge as a result thereof. In their entirety, there-
fore, Beck ' s; activities were such as clearly to establish his identification with management
in the eyes of the employees, if not, indeed , an actual agency. The Company' s responsibility
for Beck' s preforeman acts must , therefore , also be found
2. The CIO drive is started ; the discharge of Gould and Steffes
It is difficult to determine precisely the source or to trace the early stages of employee
dissatisfaction with their representation by Local 471. There was evidence that in April or
8 There is no evidence , however , from which it can be determined that Eric Ewald was a
member of the group in questic nor, indeed, any evidence which attributed to him the
commission of alleged unfair labor practices.
WAGNER IRON WORKS 463
early May , Don McMahon and possibly Larsen, then chief steward of AFL, conferred with
CIO officials concerning a disputed question of contract interpretation regarding holiday pay on
which their opinion varied from the interpretation given the contract by AFL and the Com-
pany , and that McMahon ' s visit to the CIO office was the subject of discussion in an executive
board meeting of Local 471 . Early in May Respondent discharged five employees , including
Larsen , and a short strike occurred in protest There is evidence that Larsen had previously
become interested in the CIO . There was evidence also that some of the AFL stewards and
committeemen had been handicapped in effectively adjusting grievances because they had not
been furnished with , and in fact had never seen, a copy of the contract.
Shortly after the middle of May, rumors began to circulate that officials of Local 471 had
signed, or were about to sign , a new contract with the Company without first submitting it to
the members for approval . The leaders in attempting to run down those rumors were Jake
Steffes and Gush John Gould , steward and committeeman , respectively , on the night shift.
Gould was a welder on the bucket line under Bartsch and Golner , and Steffes was a pressure
welder under Golner and Schnuck . On the evening of May 23, Gould and Steffes set out to
check on the rumors. Having first obtained permission from Schnuck, they left the plant an
hour early , went to the Kilowatt Bar nearby , and there confirmed from the proprietor that
AFL officials had exhibited to him a proposed new contract which was ready for signature
by the Company.9 '
The next morning Gould and Steffes went to the office of UAW-CIO, conferred with the of-
ficials of that Union , and thereupon began an intensive drive r mong the employees to renounce
their AFL representation and to switch to the CIO . On May 24 and 25 their activities were
carried on mainly in the Kilowatt Bar and other nearby taprooms , which were frequented by
Wagner employees before and after the change of shifts . On the 25th, they began the procural
of application cards.
Their activities were immediately brought to the Company ' s attention . Handon testified
that during the period when Gould and Steffes were absent , he reported to Schnuck that there
was CIO solicitation going on on the night shift and that Schnuck stated that he had heard about
it. Donald McMahon testified that on May 24 Schnuck inquired whether he had heard about
Gould's and Steffes' attempts to get the CIO into the plant and commented , "Well, we don't
want anything like that , all we' ll have is a bunch of strikes and stuff on our hands, and we
have been coming along pretty well with the AFL ... we'll have to see what we can do about
it, about getting rid of them."
Schnuck could not recall any conversation with Handon concerning the CIO activity or any
with McMahon concerning Gould and Steffes or the CIO . In fact Schnuck denied learning of
the CIO activities of the latter until the day after̀ ' he had discharged them . However , Foreman
Golner testified that 2 or 3 days prior to May-26 , Schnuck had informed him that there was
CIO activity in the shop and had directed him to report to Schnuck anything he saw or heard
concerning it. Furthermore . Schnuck ' s conversation with Bestul ( referred to below), which
followed shortly after the discharge , disclosed Schnuck's prior awareness of Gould's and
Steffes ' activities. In the face of this cumulative evidence Schnuck ' s denials are not credited.
Nor, because of his demeanor and his manner of testifying, which was punctuated with frequent
answers such as, "I don ' t recall" and "I don 't remember ," has his testimony generally been
credited except where substantially corroborated.
Though neither Gould nor Steffes worked on May 24 or May 25, Gould testified that on each
day he and Steffes applied to Schnuck for permission to be off and that Schnuck granted such
permission . Though Gould's testimony was far from satisfactory on this point, Schnuck's
was even less so. Thus Schnuck at first denied that either Gould or Steffes came to the plant
on either Thursday or Friday , but he later admitted that he saw Gould come in on Thursday
but claimed that Gould left after a few minutes without speaking with him. Schnuck finally
testified , however, that he could not "honestly say," because he could not remember,
whether Gould and Steffes obtained permission from him to be absent at the beginning of their
shift on Thursday and Friday evenings , nor could he "honestly say" that their absences were
not excused.
Schnuck also admitted that the practice of the Company was to pull from the rack the time-
cards of employees whose absences were not excused and that the Gould and Steffes cards
were not pulled . Furthermore , the evidence is undisputed that neither Gould nor Steffes was
questioned or reprimanded in any way when they reported to work on Saturday , but that they
were permitted to punch in and go to work without comment . The entire evidence therefore
supports Gould ' s testimony that the absences on Thursday and Friday were excused.
9 Though Wagner ' s counsel ridiculed Gould 's testimony to the foregoing effect as inherently
incredible , no attempt was "made to refute it . The point is not material , however , except to
trace the manner by which employee sentiment defected from AFL.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gould and Steffes reported to work on Saturday , May 26, at noon , punched in , and went to
work. 10 However , at intervals Gould openly solicited signatures to CIO application cards. In-
deed , shortly after his arrival Gould solicited Donald Barbian in Golner 's presence , and fol-
lowed that by soliciting Golner himself., Gould then went to his regular work station for
welding , but on 2 or 3 occasions for 2 or 3 minutes each during the hour and a half he
remained at work, he was assigned by Golner to assist Russell Bestul in sawing some heavy
ship channels on which Bestul needed help . Golner testified that on the first of those oc-
casions he had himself also lent a hand.
Gould testified that at one time he conferred with Steffes about their inability to obtain
a copy of the AFL contract and that he later informed Bestul that he was leaving work
to try to sign up some more day-shift employees at the Kilowatt Tap. Gould testified that
he also reported to Schnuck that he was "disgusted" and wanted permission to get off, _
and that Schnuck granted the request . In the meantime, Steffes had also walked
up to them , pleaded that he had a bad toothache , and Schnuck similarly granted
Steffes permission to leave . The two men punched out around 1 : 30 p. m., and
went to the Kilowatt Bar , where they continued their campaign of solicitation for
CIO.
On Monday , May 28, when Gould and Steffes reported for work , their cards were not in the
rack . They testified that they were referred to Schnuck , who informed them that they were
discharged for passing ,out CIO cards . When Gould inquired , whether Schnuck could prove it,
Schnuck replied that he had plenty of proof and brought in Handon, the chief steward of AFL,
who affirmed Schnuck 's charges and added, "This is an AFL shop and you can ' t do tat
here." u When they returned on Tuesday at Schnuck ' s direction to obtain their pay , they were
informed by Dyskow that they had been discharged for being drunk.
Bestul testified that on May 28, shortly after the discharge , he started to talk to Steffes as
Steffes was getting his clothes out of the locker , but that Schnuck came up and said, "Jake
Steffes, you are to get out of here; you are fired ; I don't want you talking to these men."
Schnuck later inquired of Bestul what Steffes had said to him in the locker room , and told
Bestul that Gould and Steffes "were fired for being drunk last Saturday ," Bestul' s testimony
continued:
I said , Well that is news to me , " I said "Johnny Gould was helping me on the saw, and
I never knew that that man was drunk . In fact, I did not know that that man had been
drinking at all. " To which Mr. Schnuck said , "Oh yes, he was loaded ." I said, "If he was
loaded, why didn't the Company send him home ." Mr. Schnuck said , "Well. I was just
going to send him home." Then he went on to talk about the CIO . He said , "After all,
Johnny and Jake are radical when it comes to belonging to the CIO .... Furthermore,
they cannot have an election , they cannot switch unions . We had an election here about
two years ago and they cannot have another election for 5 years , so it doesn' t do them any
good to try to get the CIO in now .... The Company fired Jake Steffes and Johnny Gould
for coming in drunk , and that the AFL union fired them for passing out CIO cards ....
They have had AFL there about 14 years, or something like that, and they had no trouble
with them , they were satisfied as far as he was concerned."
Schmuck testified that Bartsch, Milton Manhoff , and Golner had reported to him on Saturday
that Gould and Steffes had been drunk , or were drinking and were in no condition to be working,
that he reached the decision then to discharge them, but they left the plant before he could
see them, and that he discharged them on Monday . Schnuck gave no details on the actual dis-
charge interview , but testified that he discharged them for being drunk on Saturday, not for
any conduct on Thursday or Friday.
10 Though the regular night-shift hours were from 4 p.m. to 2 a .m., the Saturday shift was
from noon to 5 p.m.
u Handon denied that there was any reference to passing out CIO cards , and testified that
Schnuck stated he was discharging Gould and Steffes for being drunk on Saturday. However,
under Bestul's credited testimony , infra, Schnuck , shortly after the discharge , had specifi-
cally referred to the part which the CIO cards had played in the action taken both by AFL
and the Company . Handon's foregoing testimony is, therefore , not credited . Handon also
at one time volunteered, while being questioned by the General Counsel , that he had seen
Gould and Steffes drunk sometime during the previous week, but on the General Counsel's
motion, the statement was stricken as not responsive. Company counsel made no attempt
to pursue the matter on cross -examination or to connect it with the alleged drunkenness
at the plant on Saturday.
WAGNER IRON WORKS 465
Bartsch and Manhoff testified that they observed both men at close range just after they
punched in on May 26 ; that both of them, particularly Steffes , were noticeably under the
influence of liquor , i.e., they were staggering and smelled strongly of liquor. They testified
that Manhoff commented to Steffes concerning his condition , referring to his "load" or his
"shine," and that Steffes acknowledged , "yeah , ain't it a beaut ." Bartsch testified that he did
not report Gould to anyone and Manhoff Similarly testified that he did not report the incident
to anyone , because Bartsch , a foreman , was present , and that he did not discuss it with
Schnuck until after the discharge.
Golner gave conflicting and contradictory testimony as to the condition of Gould and Steffes.
He testified at first that they had been drinking excessively and that he so reported to Schnuck
a few minutes after Gould had solicited his signature on a CIO card . He admitted , however,
that he would not have assigned an employee who was under the influence of liquor to assist
on the saw , and explained that he had not sent Gould home because he was not drunk enough,
nor was it unsafe or dangerous for him to continue working in his condition . Golner ' s testi-
mony was also substantially impeached by a prior affidavit given during the General Counsel's
pretrial preparations in which he had stated that "At the time I spoke with Schnuck I didn't
say anything about the fact that they had been drinking because I couldn ' t honestly say they
were drunk because that wouldn 't be the truth."
Schnuck ' s testimony that he recalled seeing Gould and Steffes only when they were leaving
that day and that they were staggering at the time is not credited . Schnuck testified further
that after they had gone he checked with Foreman Bartsch and with Manhoff and Golner who
informed him that they were drunk or had been drinking and that they were in no condition to
work . Golner testified , however , that it was only a few minutes after Gould had solicited him
for CIO that he reported to Schnuck (pursuant to Schnuck's earlier instructions ) that Gould
was circulating CIO cards and that "at the same time I mentioned the fact that Johnny Gould
and Jake Steffes had been drinking ." The quoted portion of that testimony was impeached by
Golner' s prior contradictory affidavit referred to above.
Gould and Steffes denied having drunk anything intoxicating on Saturday morning , except for
possibly a short beer , and their testimony was corroborated by Arthur Ebbinger who had been
in their company most of the morning . Other witnesses for the General Counsel who had seen
them at the plant testified that their actions and demeanor were normal and did not indicate
that either had been drinking.
3. The discharge of the McMahon brothers
Don and Roy McMahon worked on the day shift, Roy as a welder on the loader line under
Foreman Krueger , and Don on the yard crew under Foreman Dobransky . Roy had early taken
an active part in the CIO organizing campaign, and because of that fact it was generally
assumed among the employees that Don , who was an AFL committeeman, was also favorable
to CIO. That impression was doubtless fostered also by the fact that during an earlier execu-
tive board meeting of Local 471, there was discussion of Don's contact with CIO regarding
the disputed interpretation of the holiday-pay clause in the AFL contract . In any event, Don
testified that , though he had refused solicitations to join the CIO, he had been accused by
Modell on Sunday, June 3 (the day before his discharge), of being in effect a spy for the CIO
and of taking information to it.
The Company, similarly , was fully aware of the CIO leanings of the McMahons. Thus, in its
campaign literature (later to be adverted to) it repeatedly characterized the McMahons as
spies and traitors to the AFL and as stooges for the CIO. Don was also accused of having
made a "back door deal" with Larsen to help organize the CIO and to spy on AFL. During
the discharge conference , later referred to, Werner also had characterized Don McMahon
as a "spy for CIO," and when Don denied the charge , Werner boasted that he knew what was
going on (in connection with CIO activities), because he had loyal employees who were report-
ing to him.
Waldow testified that Werner called him on Sunday evening , June 3, and stated that he
was going to fire the McMahons for the reason that Roy had gone to a CIO rl eeting during
working hours one afternoon and that Don had punched out Roy' s card for him at 4'30. Waldow,
who had previously heard reports from Richard Willing, an AFL committeeman, that the
McMahons had quit the AFL and that Don was slated for the presidency of CIO, made no
protest, he testified , because he was not opposed to the discharge of the CIO adherents.
Krueger testified that on Monday morning, Dyskow questioned him about whether he had
missed any of the men on his crew the preceding Tuesday (May 29). When Krueger answered
negatively , Dyskow asked how he could explain the fact that Roy McMahon was seen at the
tavern that afternoon and that Don had punched him out. Dyskow also claimed that the Com-
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany had had the FBI check the fingerprints on the timecards and that Don ' s fingerprints had
been found on Roy ' s card . Krueger was later questioned by Dyskow and Werner together, and
Werner repeated substantially the same statements which Dyskow had made. Krueger in-
formed them he was certain that Roy was present on the afternoon in question , because he
had, as customary, checked Roy's production near the end of the shift. Nevertheless, Werner
directed Dyakow to call in the McMahons and the AFL shop committee, and dismissed
Krueger, stating, "We won't need you here any more ... don't say anything about this to
anyone else."
The McMahons were then called into Dyskow 's office and discharged in the presence of
Dyskow, Werner, and Wagner, and of the full AFL shop committee. According to undenied
testimony of the General Counsel's witnesses, Dyskow charged that Roy had left the shop at
2:30 p.m. on the preceding Tuesday ( presumably to attend a CIO meeting called at Irene's
Tap), and that Don had punched out his card for him at the regular quitting time. When the
brothers denied the charges and offered to establish by witnesses that Roy had been present
throughout the shift, Dyskow and/or Werner claimed that the FBI had checked the finger-
prints on Roy's timecard and had established that Don had punched the card out. Werner also
stated that he had already informed Waldow of the discharge, that the McMahons should take
the matter up with the AFL and handle it as a grievance , and that the Company did not intend
to listen to their arguments. Werner also stated that if he had a man on his committee who was
a spy for the CIO, he would not want to have that man around but would get rid of him in a
hurry. When Don denied the spying charge, Werner continued that he had "loyal men" re-
porting to him and that , " We know what is going on as well as you do."
As the McMahons and the committee left the office, they met Waldow and Kornberger, who
were coming into the plant to organize for AFL the employees in the new machine shop
(Shop No . 2). Waldow admitted that he had received advance information of Werner ' s inten-
tion to discharge the brothers , and when Don asked him what he was going to do about getting
them reinstated , Waldow replied that he could not do anything , but would have to see Modell.
The following day some 10 to 15 employees , including Krueger and some of the AFL com-
mitteemen , went into Dyskow ' s office , and each in turn verified the fact of Roy McMahon's
presence on the job at the time he was supposed to have been absent . Dyskow simply listened
to each explain in turn how he knew Roy was present, but made no comment himself other
than to repeat his earlier claim that he had information that Roy had gone to the CIO meeting
and that Donhadpq ached his card out.
Neither Dyskow nor Werner testified concerning the reason for the McMahon' discharge,
nor/did they testify in denial of Krueger's testimony, nor in denial of the testimony of the
,General Counsel' s several witnesses as to the occurrences at the actual discharge interview.
The closest approach by either to the subject matter of the discharge was Werner's admission
on cross-examination that he had not at any time procured a check of the fingerprints on the
timecard and that any statement that he had done so was a falsehood . Nor did Respondent
offer Dyskow 's testimony or that of other witnesses in rebuttal of the testimony of the Gen-
eral Counsel's witnesses as to the mass interview in Dyskow's office on June 5. In fact, Re-
spondent offered no evidence on the subject of the McMahon discharges save for testimony
of Mike Banaszak and George C. Bellin, as follows:
Banaszak testified that he did not see Roy at his work station on the afternoon of May 29.
His testimony was indefinite, however , as to the number of times he had passed through the
department and as to the time of each tour . Furthermore , Banaszak testified that he did not
report to Dyskow Roy's absence at any time prior to the discharge. Banaszak testified, how-
ever, that on 3 earlier occasions during the month of May he had seen Don punch in Roy's
card at the beginning of the shift and that on the last 2 occasions he had informed Don that
each employee must punch his own card . Banaszak testified that the third occasion was on
the morning of the 29th , and that he reported the fact to Dyskow the next day . Banaszak
testified, however, that he had at no time reported to Dyskow that Don had punched out Roy's
card, and specifically that he did not report to Dyskow that Don had punched it out on May 29.
Bellin testified to a conversation with the McMahons at the time he handed them t heir final
paychecks , but it furnished no support for any contention that Roy was not present on the
afternoon in question or that Don had punched out his card . To the contrary, Don's explana-
tion to Bellin was that he had been wrongly accused of punching out his brother's card.
Revelant to the allegations of the complaint that the Respondent Union caused or attempted
to cause the discharge of the McMahons was the testimony of Bernard Karns and Raymond
Witz regarding their conversations with Handon on the afternoon of the discharge. Witz
testified that he questioned Handon as to why the McMahons had been discharged and that
Handon replied that he had them fired because they were stool pigeons and were supporting
the CIO . Karns, to whom Witz had repeated Handon' s statement , testified that he sought
corroboration from Handon and that Handon stated that he had gone in to see Dyskow and had
WAGNER IRON WORKS 467
had the McMahons fired because they were undermining the AFL union . This mutually cor-
roborative testimony is credited over Handon ' s denials.
4. The layoff on the night shift
Apparently due to the activities of Gould and Steffes and to the fact that there was normally
less supervision on the night shift , the CIO membership drive made better progress on that
shift than on the day shift . At a CIO meeting held on May 29, Chiakulas reported that the night
shift was virtually signed up 100 percent with CIO, and in another meeting on May 31 he re-
ported that 52 cards had been obtained on the night shift (of approximately 55 employees), and
from 75 to 80 on the day shift (of approximately 160 employees). u
On June 4 the Company terminated the employment of 22 night - shift employees (whose
names are listed in Appendix A hereto ), retained 20 others on the night shift, and transferred
13 to the day shift . The termination was effected by handing to each employee a notice which
read, so far as pertinent , as follows:
Due to curtailment of loader production , we find it necessary to reduce the strength of
our night crew. Effective Tuesday, June 5, 1951, and until further notice , your services
are no longer required.
The contract contained seniority provisions which were applicable to a reduction in force.
Thus it provided that new employees should be regarded as probationary employees for the
first 60 days of their employment and might be laid off or discharged without reference to the
length of service; but after the 60-day probationary period , employees acquired a seniority
status according to their length of continuous service from the date of hiring . It provided
further that in all cases of promotions, demotions , and increases or decreases in forces,
employees should be given preference in accordance with their length of continuous service,
subject to their relative ability to perform the work in question . There was no provision
which limited seniority rights to the shift on which the employee worked, nor was there any
limitation except that contained in the underscored portion of the preceding sentence.
Seniority records of night-shift employees showed that 33 out of the 55 employees had ac-
quired a seniority status and that 22 of them were still serving as probationary employees.
Eleven of those who were terminated had acquired seniority status , though the Company re-
tained 11 probationary employees Comparisons limited to employees who had acquired
seniority status show that 5 were laid off who had greater seniority than 5 others who were
retained
Seniority records were not offered for day-shift employees, and it cannot be determined
how marry of them were retained over night - shift employees who had greater seniority rights.
It is clear , however, that the proportion of employees on the day shift without, or with slight,
seniority was comparable to that on the night shift, since Dyskow conceded that as large a
proportion of newly hired employees was placed on the day shift as on the night shift
In any event , it is clear that the seniority provisions of the contract were disregarded. In
fact, Dyskow admitted that he had arbitrarily fixed January 1, 1951, as the date from which
seniority would be recognized Is because of his view that it had been difficult to procure
qualified mechanics since that date and because he felt that those hired prior to that date
had acquired sufficient experience to warrant retention . He testified that thereupon he and
Schnuck collaborated in the selection of those to be terminated and those to be retained on
the basis of their judgment of the ability of the mechanics.
As justification for disregarding the contract provisions , the Company contended that it
had obtained the approval of Local 471 for the layoff, and offered the testimony of Dyskow
that he had called in the AFL committee: " I am sure I had them in the office and we talked to
them and told them what we were going to do ." (Emphasis supplied .) That testimony was
weakened on cross -examination by Dyskow' s explanation that it was customary for him to go
over lists of laid-off employees with union representatives and that he imagined he did so
and that the AFL made no objection.
Handon denied flatly that anyone with the Company conferred with him concerning the layoff
or about who was to be laid off. He testified that Dyskow did not ask him to approve the layoff,
nor ask him to get the Local' s approval , but simply informed him that it was being made.
Dyskow' s testimony in its entirety is reconcilable with Handon 's, which is credited.
i:Chiakulas made a similar report at a meeting on the evening of June 4, which Wayne
Beck attended, but that announcement came after plans for the layoff had been completed.
isWith the single exception of Jesus Moreno, who was hired October 3, 1950, and who was
nevertheless selected for termination because of prior incidents of drinking on the job.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does the evidence support Dyskow ' s claim that his selection was based on ability as
between welders who had been hired subsequent to January 1. Indeed, he admitted (as did
Werner) that there were also " a lot of poor welders on the day shift, " but that he terminated
none of them . With specific reference to Arthur Ebbinger (who had acquired seniority status
and who had been terminated ), Dyskow admitted that Ebbinger was a satisfactory employee
and a qualified welder ; that he had so informed Ebbinger shortly before the layoff ; and that
he had also then raised Ebbinger to the maximum pay for a welder because he was a good
worker . Dyskow was unable to explain why, under those circumstances , Ebbinger was not re-
tained or offered a transfer to the day shift when , for example , Anthony Galaska and Joseph
Lang , who were probationary employees , were retained.
The significance of the Ebbinger comparison is emphasized by the Company's records,
which showed that seven other welders, whose seniority exceeded Ebbinger 's and whose rates
of pay were equal to or exceeded his, were similarly terminated . One such was Gordon Fuller,
who testified , without denial , to his foreman ' s approval of his work and to the receipt of three
separate wage increases after his employment on January 5, 1951 . There was testimony by
other witnesses , also undenied , that Schnuck and Bartsch had praised the quality and the
quantity of the work being turned out by the night -shift crew , and that Bartsch had stated that
the worst welder on the night shift was better than those on the day shift . That testimony, plus
a comparison of loader production on the day and night shifts for April and May, rebutted
testimony of Dyskow and Werner that production on the night shift was spotty.
The layoff was also effected in the face of the following facts, which were stipulated to: That
since the fall of 1950 , there was and continued to be a shortage of production and maintenance
personnel on both the day and the night shift ; that said personnel then totaled approximately
90 to 95 employees ; that it was increased to about 224 on March 1, 1951 , and that the Com-
pany planned to continue such expansion until approximately October 1. 1951, at which time
it desired to have approximately 531 production and maintenance employees ; that as of June
4, the Company was currently advertising , and continued to advertise , for employees for both
day and night shifts , as welders and helpers , as well as for machine- shop personnel ; that from
June 4 to September 1, the company newly employed 61 welders, 3 learner welders, 5 be-
ginner welders , and 56 helpers . One helper was hired June 4, and 2 on June 5 . Though no new
employees were hired for the night shift from the inception of the strike (June 20) until
August, new employees were hired for that shift from time to time , subsequent to August 1
and up to the hearing , including welders and beginning welders, a shear operator, and a
punch -press operator . However, the nigh - shift at no time since the layoff exceeded 20 em-
ployees.
Harry Zbikowski testified , without denial , that in late July or early August 1951 he asked
his foreman , Wotta, about a rumor that the Company was going to start a full night shift.
Wotta replied that the night shift would be confined to a small crew because Dyskow said that
if a full shift was put on " they might start up the CIO again ." Zbikowski testified also that
he discussed the same subject with Wotta on April 1 . 1952, and that Wotta again stated that
Dyskow did not want to build up the night shift because of the CIO trouble and because if more
employees were put on the night shift " they will want to build up the night shift into the CIO
again."
It is difficult to follow from the evidence the shifting bases on which the Company sought
from time to time to explain and to justify the night -shift layoff. Its final defense, as stated
in its brief, was that it was "justified by economic conditions and valid management policies
contemplated for some time." But various reasons had been previously assigned . Thus, the
termination notice had assigned as the reason the curtailment of loader production. At the
June 6 conference with the CIO committee (more fully adverted to in the ensuing section
hereof), Werner stated that the explanation was simply that the Company had a lot of poor
welders who had to be replaced . On June 26 Werner testified in the representation hearing
in Case No. 13-RC-2021 that the night- shift layoff was due to a shortage of materials for
civilian production, and he repeated that explanation in his letter the next day to the hearing
officer . Marshall , Company 's counsel, similarly explained the layoff in his letter of October
5 to the Regional Office as being due to "an acute material shortage." However, it was
stipulated at the hearing in the present case that in May 1951 the Company had adequate
supplies on hand in the yard and in other storage places to meet the current and contemplated
production needs of the Company.
Though disclaiming direct support of either the cause assigned in the layoff notice or the
cause assigned in the subsequent Werner - Marshall letters , the Company attempted oblique
support through Werner's testimony . Thus, when referred to the phrasing of the layoff
notices, Werner 'contended that it was not "exactly inaccurate ," but that it was a poor way
of stating what was intended . Werner also admitted at one point that he did not lay off the
night shift because of a shortage of materials , and that the following statement in Marshall's
letter of October 5 was untrue:
WAGNER IRON WORKS 469
It is true that on June 4, 1951, the Company suspended operations of its regular night
shift because of an acute material shortage which necessitated the laying off of a number
of workers.
Despite that testimony and the stipulation that the Company had adequate supplies on hand
to meet current and contemplated production needs, Werner attempted nevertheless to main-
tain that there was a material shortage in view of the planned expansion program , advancing
what he conceded to be a " complicated story" and a " complex picture of the material situa-
tion." Thus, he testified that though NPA had granted relief in the way of increased steel
allocations , the increase was inadequate to meet fully the needs of the plant expansion, and
that , although materials on hand or on order were reasonably adequate to meet the existing
production schedules , they were inadequate for the full extent of the planned production in
the future.
Werner testified further that it had been decided upon at a much earlier time that when the
plant expansion program reached an appropriate stage , plant operations would be consolidated
into a daytime operation with the exception of certain machinery for which space was not
available on the day shift ; that the additional floor space provided for plant expansion would
be utilized by increasing the day - shift operations and decreasing the night shift, because,
among other reasons, such a move would entail less supervision and would avoid payment of
a 10-cent shift differential . Furthermore , Werner testified , the employees laid off were in a
less desirable work classification , there were some poor workmen on it who were scheduled
to be dismissed in any event because of substandard work, and the night - shift crew commonly
violated the rules of conduct , including drinking on the premises and the frequenting of tav-
erns. The layoff was not attempted earlier, he explained , because there were certain me-
chanics they wished to absorb in the day shift, and because space and facilities were not
ready until June 4.
Referred to the statement in his letter of Jute 27 to the hearing officer that the layoffs were
because of a shortage of materials for civilian production , Werner testified that the complex
system of controlling materials would have required a 30-page letter , and that he chose
simply to refer to the material situation since the matter "didn' t concern the National Labor
Relations Board anyhow ." Referred to his testimony in the representation hearing on June 26
to similar effect as his letter , Werner maintained that that testimony was true and correct,
and explained that he had not then mentioned the reasons to which he had testified during the
present hearing because he saw no reason to elaborate at the time on the very complex
picture of the materials situation and because he did not "want to take all afternoon with a
long story about materials which had no bearing on the hearing at all."
Dyskow 's testimony closely paralleled Werner ' s on this point that the decision to lay off the
night shift was made months earlier and that Dyskow was to carry it out at such time, in his
judgment , as the building expansion program should make available additional space for day-
shift operations . Dyskow testified that he effected the layoff under that earlier authorization
and without further consultation with Werner.
However , Werner had testified at the representation hearing that the layoff was not planned,
but that it resulted from existing uncertainties as to materials available for civilian produc-
tion:
Q And when did you plan this curtailment , this layoff rather- -I mean how far back of
the date actually done?
A. Well, it isn' t planned . It happens by reason of the source of material supply, and
we do not plan curtailments.
Q, Well , you don't know what materials you are going to get in from day to day?
A. You know that don ' t ... You know that you get your material and you have to plan
from day to day, from week to week, these days.
5. The June 6 announcement ; the consent to the election ; the conference with the CIO
committee
On May 28 Chiakulas , international representative of UAW-CIO, had written Wagner noti-
fying it that " the overwhelming majority" of its employees had designated UAW-CIO as their
bargaining agent and requesting a meeting for recognition and negotiation . The letter referred
to the fact that Local 471 had represented the employees in the past , but requested immediate
recognition of CIO and that Wagner refrain from entering into any new agreement with AFL
"until the matter of representation has been properly settled and the collective bargaining
agent for your employees is determined ." On May 31 UAW-CIO had filed a representation
petition with the Chicago Regional Office under Case No. 13-RC-2021.
283230 0 - 54 - 31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At 11:30 a m. on June 6, the Company issued and released to its employees a lengthy
announcement concerning its position in the campaign between AFL and CIO, which Werner
first read to, and then mailed to , the employees . Briefly summarized the announcement was,
so far as material , as follows:
It referred to accusations from both sides that Wagner was favoring the other side. It
stated that the Company ' s position was one of neutrality , but that it must by law recognize the
AFL as bargaining agent until the employees made a different choice ; and in that connection
it referred to and quoted a letter from the Board to Local 471 dated May 23. That letter, from
Field Examiner Mayberry , replying to an inquiry from Waldow of the same date , stated that
the certification of the results of the union -authorization election held November 10, 1948,
in Case No . 12-UA-3833 was still effective and that:
In view of the fact that your union does not need a renewed certification before entering
into a union - shop agreement with the Wagner Iron Works , it is not necessary to process
further the petition you filed on April 25, 1951. Therefore I request that you submit to
this office a withdrawal request of the petition.
The announcement then referred to the possibility of an election to be held under Board
supervision and to the fact that the winner of such an election would determine the bargaining
agent of the employees , and continued.
However , in the meantime , we suggest the ClOappoint a committee , and we will deal with
both the CIO and AFL committees until the election [ Emphasis supplied. ]
The announcement also answered a number of alleged false statements contained in CIO
campaign literature , including CIO charges relating to the discharges , and concluded with
the following paragraph
Since this statement was released at 11 : 30 a m . June 6, arrangements were made with
the National Labor Relations Board to hold an election in the shop , between the hours of
3 p.m. and 5 p.m. on June 18. 1951 . At that time all of our eligible workers will be per-
mitted to vote for whichever union they chose.
On the afternoon of June 6 a conference was held in Werner's office between Werner,
Dyskow, and McCarthy for the Company, and a CIO committee consisting of Clakulas, Gould,
Steffes , the McMahons, and Bestul . The testimony as to the details of the discussions which
ensued is in considerable conflict, though not so on the happenings which are of chief mate-
riality to the issues herein . It is clear that the discussions, which were chiefly between Werner
and Chiakulas, were conducted on a rough and at times violent basis, with loud language and
shouting , and with frequent instances when the two chief participants, and sometimes others.
were talking at the same time. The heat was generated mainly by Werner' s objections to the
presence on the CIO committee of the four dischargees , discussions of the alleged causes of
the discharges , and by Werner' s resentment of CIO's scheduling of a meeting during working
hours the next day. The following resume represents a reconciliation mainly of the testimony
of Chiakulas and Werner on the points which are of chief relevence to the issues herein, since
the testimony of other participants is found to be without value in resolving the conflict.
Werner stated that the purpose of the meeting was to inform the CIO representatives that
he was prepared to deal with the CIO shop committee (as well as with AFL) concerning
grievances pending the holding of the election. u Though the discussions veered into the con-
14 Though the morning announcement indicated that the Company was contemplating recog-
nizing AFL and CIO on an equal basis, it was clear throughout the conference that the only
recognition under consideration was for the handling of grievances. That understanding was
explicit in Chiakulas' testimony, as well as from his later letter of June 9 to Werner,
referred to infra.
Though Werner testified that the afternoon conference was arranged by Field Examiner
Cohen, he did not state for what purpose Cohen arranged, or could have arranged , the meeting;
nor was any reference made during the conference to Cohen or to his having arranged the
meeting Other testimony established that prior to the signing of the consent -election agree-
ment that morning , Cohen had made repeated attempts , without success , to persuade Werner
to meet with the CIO representatives regarding the consent to the election . On the entire
evidence , it is found that Werner ' s testimony related to Cohen' s efforts to arrange the earlier
meeting , and that Werner held the afternoon meeting for the purpose of following through with
his morning announcement to the employees.
WAGNER IRON WORKS 471
troversial subjects above referred to, agreement was reached that Werner would recognize
the CIO (through a shop committee to be forthwith appointed) for the handling of grievances
for its members, provided authorization of such representation by the CIO was submitted by
the grievors.
No procedure was discussed or agreed upon for the actual processing of grievances, and
no understanding was reached as to what action the Union would be entitled to take if griev-
ances were not satisfactorily settled. Werner did, however, state his willingness to arbitrate
the discharges of Gould, Steffes, and the McMahons, which had been subjects of discussion;
but Chiakulas rejected the suggestion and stated that the Union had a right to strike in view of
the Company's unfair labor practices, on which CIO had already filed charges with the
Board. 15
There was reference also to the, layoff of the night shift and to the Company's continued
advertising for men. Werner stated that the matter was explained by the simple fact that the
Company had a lot of poor welders who had to be replaced, that it would continue to advertise,
to replace poor men with good men, and to fire those who came in drunk. Werner also re-
ferred to the fact that Don McMahon, who had been on the AFL committee the previous day,
was appearing for the CIO, and stated that he had some men who were loyal to him and who
were reporting back to him concerning the CIO.1s
Pursuent to the understanding reached at the conference, Chiakulas wrote Werner on June 8,
notifying him of the election of the CIO shop committee, and on June 9 Chiakulas wrote
Werner referring further to the Company' s agreement to deal with CIO on grievances, and
enclosed authorizations signed by Gould, Steffes, and the McMahons.
15 The CIO had filed a waiver of its charges in order to permit the Board to proceed with the
election , and the consent agreement had been signed by the Company with that understanding.
However , the discussion of the charges at the conference apprised Werner that CIO had not
withdrawn its charges generally , though Werner pretended so to have understood in later
withdrawing the Company' s consent to the election . See section 8, infra.
A Though Chiakulas and Werner testified in great detail concerning the happenings at the
conference , Respondent offered in evidence a wire recording , which Werner had secretly
made , and a transcript which had been subsequently made by a court reporter . The exhibits
were rejected as lacking proper foundation and authentication when the following facts were
developed:
Nine persons had attended the conference , most of whom had participated at some time
in the discussions , though Chiakulas and Werner had done the great bulk of the talking.
The only identification of the voices to the court reporter was made by Werner and by
his secretary, Gertrude Jooss, the latter of whom was not present but had operated the
mechanism from an adjoining office . At frequent points two and sometimes more persons
were talking at the same time and were recorded simultaneously . The reporter neces -
sarily transcribed a single speaker at a time, and did not indicate the instances where
simultaneous recordings were made . In at least two places there were " whistles" or similar
sounds which were indicia of a common variety of tampering (though nd evidence of actual
tampering was offered ), and such sounds had blotted out possibly slight, but unknown, por-
tions of the context . At other points , though the recording was inaudible to the reporter, he
had accepted Werner ' s representations of what was said . Indeed, the reporter admitted that
he would have been unable to identify the voices or to have prepared the transcript in the
form as offered without Werner's assistance.
That the recorder 's performance was also faulty on other occasions was apparent from
evidence that Werner had secretly used the device to record some of Swander 's pretrial
interviews with employees in Werner 's office and from Marshall's representations that,
though he had not heard the recording , hewas informed that it was a very bad one. Marshall's
representations that he had no connection with , and did not resort to the use of , that record-
ing were accepted . However , the Board ' s attention is called to the possible violation of Sec-
tion 12 of the Act by Werner and others.
Because company counsel strenuously reargues in his brief the admissibility of the rejected
exhibits , the Examiner has carefully reconsidered his ruling . Though not persuaded that the
ruling was in error , the Examiner has considered the possibility that it was , and in doing so
has endeavored to determine whether, if erroneous, the rulingwas prejudicial to the Company.
Considering the rejected exhibits as an offer of proof, and assuming for that purpose the
reporter ' s transcript to be a reasonably accurate transcript of the recording , he finds that
the exhibits are not in substantial conflict with the above findings , made independently thereof,
as to the happenings at the conference.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon receipt of those communications , Werner consulted and employed Marshall. and
thereupon wrote Chiakulas under date of June 11 as follows:
In view of the forthcoming election of representatives to be held on June 18 . 1951, and
further in view of our presently existing contract with the A. F. of L., we have been ad-
vised to defer any conferences until after the result of the election has been determined.
Henry Wiza testified that in the meantime the newly elected CIO committee went into
Dyskow' s office on the morning of June 8, introduced themselves as the CIO committeemen,
showed Dyskow a copy of Chiakulas' letter , and informed Dyskow that he could handle griev-
ances with them. Wiza testified that thereafter Dyskow presented a grievance of his own
concerning production and another concerning the quality of Ben Karn 's work, and that the
committee presented two grievances concerning Wayne Beck and his activities. Bestul and
other witnesses corroborated Wiza' s testimony as to grievance meetings between the CIO
committee and Dyskow subsequent to the June 6 conference . Indeed , Dyskow admitted knowing
that CIO had appointed a shop committee and admitted that he conferred with various members
of it, as many as 3 or 4 times, concerning "gripes" made by the committee and "gripes"
which he in turn made to it.
6. Restraint of CIO; assistance and support to AFL
The evidence here summarized relates to the period before the strike and most of it con-
cerns the period after the consent - election agreement was signed on June 6, when AFL ac-
tively entered the campaign for the purpose of retaining its adherents , procuring new mem-
bers, and winning the election . In that campaign AFL had the full and open support of the
Company. Thus Werner admitted that he actively and openly opposed the CIO, that he made
no secret of the fact that he was doing so, and that after he consented to the election he set out
to enlist AFL help so that it could beat CIO. Dyskow testified in turn that he felt that the
Company was entitled to take sides in the campaign because of the fact that the AFL had the
contract at the plant . With that example of the attitude of Respondent 's management officials
before them , it is not surprising that the Company's supervisors of lesser rank should be
found actively opposing CIO and championing the cause of AFL.
As early as May 26, Bartsch had interrogated Orville Ward concerning the identity of the
employees who were handing out CIO cards , and on May 29 Wotta questioned a group of em-
ployees concerning whether they had signed up for CIO, informing them that Dyskow wanted to
know. On June 6 Banaszak and Schnuck at separate times questioned Erold Sasse as to
whether he intended to join CIO. On June 9 Dyskow ordered Curtis Barbian (who had reported
late) to remove his CIO insignia and to take the day off. On other occasions Banaszak ques-
tioned employees about wearing CIO buttons and directed them to remove the insignia - in one
instance under penalty of discharge . In several instances Banaszak also directed employees
to remove CIO stickers onplant property or machinery, but permitted AFL stickers to remain.
On at least some of the foregoing occasions Banaszak was wearing AFL insignia. Wotta simi-
larly questioned Ervin Kusz on several occasions concerning his reasons for wearing CIO
insignia and attempted to remove it from Kusz' clothing. Dobransky also joined in the question-
ing of employees concerning their reasons for wearing CIO buttons and stated that no one wear-
ing CIO buttons could work for him.
Eugene Groh testified that on June 15 Beck pasted an AFL sticker near the water fountain
in the presence and under the observation of Dyskow. Ramon Witz testified that Beck, on an
occasion when Witz was wearing CIO insignia, ordered him to speed up his production to 6
tops, and that when Witz demurred that 4 tops were an average , Beck continued , "you will be
making 6 tops before I am through with you . . . that's what you get for sticking up for the
CIO." Raymond Pattenge testified that around June 16 Beck ordered him to remove a CIO
button , and that when he refused , Beck struck him on the back, pasting a large AFL sticker
on him . Arthur Golding testified that on June 12 Beck came to the new machine shop and
questioned him about having "quit our union." Beck wore no special badge and carried no
pass to get into the new shop , which was closely guarded for security reasons . Golding testi-
fied further that Kornberger and Waldow were also admitted to that building for the purpose
of organizing the men for AFL.
Wiza testified that the day following Beck 's solicitation of Shop 2 for AFL, he apprised
Dyskow of the fact and sought comparable privileges for CIO. Dyskow denied the request for
alleged security reasons.
Handon engaged daily in the collection of dues and in the soliciting of membership for AFL
on company time and property . He testified that he had complained to Dyskow that he "could
WAGNER IRON WORKS 473
not do it alone," outside of working hours , and that Dyskow authorized him to take working
time for those activities but "not to make it too long." Banaszak also informed Handon that
he would give Handon all the support he needed and that Handon "shouldn' t mind him," but
should go around wherever he wished to collect dues or to solicit for AFL. There was testi-
mony also (relevant to the CB case against , the Union), that Handon had threatened certain
employees with discharge unless they paid up their AFL dues. Handon at first denied making
such threats , then testified that the employees may have regarded his statements as threats,
and finally admitted that he "might have made" some such statements.
Handon and Beck and some of the AFL committeemen were permitted to pass out AFL
literature and stickers both in the plant and at the gate on company time and were paid for
that time . Waldow and Kornberger were permitted to go into Shop 2, the new machine shop,
despite alleged security precautions, and to organize new employees for AFL.
Waldow testified that shortly before June 6, Werner called him and suggested that Local
471 should get out some literature ; that he later informed Werner the Local planned to do so
and planned to mail the literature to the employees ' homes ; and he requested Werner to
furnish the Local the names and addresses of all employees . Werner complied on June 6
and June 7.
The Company was not content , however, to rely on AFL efforts or AFL literature. Thus,
without the knowledge of AFL, the Company had printed a series of 21 anti-CIO handbills
and had them distributed at the plant gate by a paid agent (not an employee of Wagner), who
wore insignia indicating that he was a member of Local 471. The handbills similarly pre-
tended to emanate from AFL, and in two cases Were also distriubted by AFL representatives.
One of the series, which bore the caption , "Special Bulletin to Wagner Employees from AFL
Headquarters ," was mailed by the Company to its employees in envelopes which did not
disclose the identity of the sender . It is unnecessary to catalog the contents of the series of
the handbills ; they were in the main violently anti -CIO and pro-AFL, and they strongly urged
employees to continue their AFL affiliation and to reject CIO.
Dyskow testified that he did nothing to end the distribution of literature within the plant
during the early stages of the campaign, but that later he instructed the foreman , to stop the
whole thing and clean up the mess," after the campaign reached the stage where it was in-
terfering with production through the plastering of stickers over the machines and when the
wearing of numerous buttons by some of the employees gave them the appearance of clowning.
Though under Dyskow' s testimony his order did not discriminate between CIO and AFL, the
evidence does not establish that it was so intended or was so carried out. Thus, Dyskow ad-
mitted feeling that AFL employees were entitled to wear their buttons in the plant because
AFL had the contract , and testified that he had in fact suggested to Handon that the AFL mem-
bers should wear their buttons tooffset the prevalence of CIO buttons. Furthermore , Banaszak,
Beck , and other foremen were permitted openly to wear AFL insignia while ordering em-
ployees to remove CIO stickers from plant property and machinery while permitting AFL
stickers to remain.
Waldow and Kornberger testified to an occasion (fixed by Werner as prior to the time he
withdrew from the election) on which Werner called their attention to a CIO meeting to be
held the next night and suggested that Local 471 should get together some 50 ironworkers to
go in and break up the meeting , and that Werner promised to take care of all damages from
the'breaking of furniture or otherwise , regardless of what happened. They testified further
that on the first day of the strike, Werner called Local 471 and asked that the union assemble
a group of 50 ironworkers to break up the strike , not only by working in the plant, but by
coming there when the CIO picket line was at the gate and by starting a fight and breaking up
the picket line so that other employees could get in to work.
Werner did not substantially dispute the Waldow- Korberger testimony concerning the above
incidents . Thus. Werner admitted that he had suggested that they send their members to the
CIO meetings to protest against CIO tactics and vilification of AFL members, and that he
promised that if the meeting broke up in a fight, and if furniture and tables were broken, he
would foot the bill. Werner also admitted that on the first day of the strike he requested the
Local to send him 50 men to work in the shop; that he suggested that it have an "equal number
of men" in front of the plant so as to permit employees , who wished , to come in to work; and
that it was "very probable" that he had again promised to foot the bill if there was any alter-
cation . Since Werner's testimony affords no substantial contradiction , the mutually corrob-
orative testimony of Waldow and Korberger is credited.
7. Miscellaneous items of interference and discrimination
Summarized here for convenience are a number of miscellaneous items and incidents which
are charged by the General Counsel to constitute either interference , restraint, and coercion,
or discrimination , and which do not fall readily under other sections of this report.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company had for some years used a form of application for employment which con-
tained a b" line on which applicants were to specify their union affiliation.
The contract between the company and Local 471 contained a union-security clause (quoted
at sectiori'a; 3, f, i r which the General Counsel contends was invalid.
The complaint alleged that Dyskow, about the second week in June, promised and granted
employees -inedical' services and doctor's care upon the condition that they remove their
CIO buttons. No evidence was offered which would establish that allegation. The General
Counsel offered the "testimony ' of several witnesses which in certain of its aspects indicated
that there was some difference in the medical services furnished by the Company before and
after the advent of CIO, but there was no evidence that membership in CIO was the determining
factor. Indeed, the testimony of Gregory Salazar, which was the closest to the mark, indicated
that the difference in his case was due to the question of the Company's insurance coverage
The complaint also alleged that Werner intimidated employees by threatening to and
attempting to run them down with an automobile while they were picketing at the plant during
the strike. Testimony by several witnesses established that early on the morning of June 20,
the first day of the strike, Werner approached the plant in his car at a rapid rate, and That,
without substantially slackening his speed, he started to turn into the plant entrance, which
was being picketed by a line of pickets in oval formation. Werner applied his brakes suddenly,
leaving skid marks on the pavement, and the pickets who were in the path of the car jumped
aside. The car was brought to a stop without striking anyone, though some of the pickets might
have been struck if they had not jumped. No word was spoken by Werner or by the pickets;
however, Frank Smejkel complained to•the police, whowere present on both sides of the side-
walk at the time. " T
The complaint also alleges the discriminatory discharge of Frank Smejkel on June 19
Smejkel had been hired on May 7, 1951, ow the night shift but was transferred to the day shift
at the time of the June 4 layoff. He had attended the CIO meeting on June 4 (which Wayne Beck
had also -attended), had then joined the CIO, and had made statements during the meeting
critical of AFL and complimentary to CIO.
Smejkel testified that on June 19 Beck, who was then foreman, directed him to count the
tops he was producing , and that Beck returned later and inquired whether Smejkel had com-
plied. Smejkel replied, "When four o'clock comes and you are supposed to come and check up,
you come back and I'll tell you how many I put out." Smejkel's testimony continued:
He says "Don't you like the way I'm handling things here? And I said "No." He says
"If you don't like it you can get the hell out of here." I said, "Okay, get my check and
I'll get out." So he says "You stay right Here," and he went in the office and about five
minutes later he come back and said "You can go over and get your check."
Smejkel was then called in by Schnuck, who asked him what the trouble was. Smejkel told
Schnuck what had happened, and Schnuck then called in Beck, who'atated, "Well, you know the
CIO lost and they can't'bargain, and Frank is mad about it." Smejkel's testimony continued:
I got up then and I says "Listen, you tell the truth or I' m going to hit you. That was a lie,
I wasn't mad or anything." Then Tom Schnuck said "that's enough, you can go in the
office and get your check."
Respondent did not call either Beck or Schnuck to testify.
On February 7,- 1952, Chiakulas had summoned by letter several Wagner employees to
appeal` at the offices , of UAW-CIO in downtown Milwaukee for interviews by the General
Cbiihsel' s`representatives . Around 7:45 p m , and before any of them appeared , Chiakulas left
the offices= and crossed the street to enter a restaurant in an office building . As he approached
the lobby entrance , he observed Wayne Beck standing in the doorway with a piece of paper in
his hand and a pencil tucked under his hat . Chiakulas accused Beck of spying on union activities
and inquired what he was doing there. Beck replied , " That' s my business, " and did not ex-
pressly deny the spying charge , although he added that he was waiting for or expecting some
people . An altercation ensued during which Chuakulas assaulted Beck ' and following which Beck
called both Werner and the police.
The following evidence is relevant to the case against the Respondent Union:
Shortly after June 15, 1951, Handon ordered Eugene Groh to remove a CIO sticker from his
shirt , and when Groh refused , Handon attempted to rip it off , stating that Groh had no right to
wear it because the shop was an AFL shop.
On June 3, 1951, Waldow made the threat to Raymond Pattenge that he would have the
Company fire Pattenge unless he paid up his AFL dues in full.
WAGNER IRON WORKS 475
8. The Company withdraws from the election; the strike; the discharge letter and other
strike incidents
Modell had taken an active part in the election campaign on behalf of Local 471. He testified
that he became convinced by June 14 that it was doubtful that AFL could win the election, that
it "had a good chance to lose," and that he was therefore anxious to do anything he could to
stop the election. Having observed the denial in a CIO bulletin that its charges against the
Company had been dropped, Modell called Werner, told him it was his understanding that when
a consent election was agreed upon all charges of unfair labor practices were dropped, that
he did not want the election to go ahead, and that he was hoping that Werner could find some-
thing to do about it. Modell denied that he specifically informed Werner of his doubts con-
cerning the outcome of the election, but testified that it was obvious what his opinion was when
he "contacted the Company to try to have the thing held up a little bit." Werner replied that
he also had understood that the unfair labor practices had been dropped and that he was going
to check into the matter.
Werner's testimony was not in substantial conflict withModell's, which is credited. Werner
testified that on June 15 he sent a telegram to the Board's Regional Office withdrawing from
the election and that prior thereto on the same day he called Regional Director Madden and
informed him that-
I told Mr. Madden also that our men were being threatened by the CIO, and that they
were being threatened that if they didn't vote in favor of the CIO they would receive harm
and injury, and under those circumstances I would not permit the election to proceed....
...my signature to the consent agreement was obtained under a different set of cir-
cumstances than I was advised of and that -because of the fraudulent statements that were
being circulated we were withdrawing our consent to the election. I told him that my sig-
nature on the agreement was obtained when Mr. Cohen told me that the charges which
were filed at that time, prior to that time, by the CIO, were being waived and I found out
later that that was not the case, that they were not being waived....
Werner testified that the fraudulent statements he referred to in his conversation with
Madden were those that the CIO charges had been waived when in fact they were not being
waived; and that he also informed Madden that the Company would not provide facilities for
the election, that if it were held the Company would not be bound by its results, and that it was
withdrawing its consent to the election.
On June 15, Madden wired the Company as follows:
In re Case No. 13-RC-2021 I have been verbally advised by A. J. Werner, vice presi-
dent of your company, that the company desires to withdraw its consent to the agreement
for consent election herein executed on June 6, 1951, for the reason that the unfair labor
practice charges previously filed against the company have not been withdrawn. Since
these unfair labor practice charges have been properly waived, I do not deem your reason
to be sufficient grounds for my approving your request. However since I have been in-
formed also that the company will not make available the facilities agreed upon in said
consent election agreement. I am approving the company's request to withdraw its con-
sent from the agreement. You are hereby notified that the election as scheduled will not
be conducted. You are requested to post this telegram in your plant.
Werner denied that Madden's telegram stated correctly the substance of the conversation
between them, and testified that he did not order it to be,pogted. On June 16, however, there
was posted on Respondent's bulletin board the following notice, dictated by Werner and signed
by Wagner Iron Works:
Because we object to the fraudulent statements being made in the election campaign con-
cerning the National Labor Relations Board election, we have withdrawn our consent to
have an election. There will be no election on June 18, 1951. We expect to have a meeting
with the NLRB in near future and will advise you of further developments. We have been
officially advised by telegram NLRB election scheduled for Monday, June 18, 1951, will
not be held.
When cross-examined on his claim that he had assigned to Madden alleged CIO threats as
part of the basis for withdrawing from the election, Werner gave conflicting testimony as to
the number, nature, and form of reports which he had allegedly received. At one point he
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claimed the reports were in affidavit form , at another that they were in writing but not reduced
to affidavits , and at another that they were verbal reports which he directed Dyskow to have
reduced to writing and later to affidavit form
From Dyskow 's testimony , it appeared that though ultimately he procured about 11 affidavits,
not over 3 of them concerned incidents which had occurred prior to June 15. What is of greater
significance is that Madden' s telegram of June 15 , reporting the substance of Werner ' s call,
made no mention of alleged CIO threats reported by Werner , and that Werner ' s posted notice
to employees similarly did not mention such threats , assigning only the Company ' s objection
to- fraudulent statements ," i. e., those relating to the alleged waiver of unfair labor practice
charges . It was clear , however , from the discussion of the charges in the June 6 conference,
which followed on the heels of the signing of the consent -election agreement , that Werner well
understood that CIO had not dropped its charges by waiving them so that the Board might pro-
ceed with the election . In view of all the circumstances , Werner ' s testimony is not credited
that he assigned to Madden alleged CIO threats as one of the reasons for withdrawing from the
election , but that such reason was one which was later advanced in a belated attempt to bolster
his withdrawal from the election.
CIO did not receive notice of the Company ' s withdrawal from the election until Monday,
June 18 . On Tuesday it distributed a handbill calling a meeting at Irene ' s Tap " to vote on what
action we will take against the Company for their actions and their unfair labor practices."
At that meeting the employees voted unanimously to go on strike . `Many witnesses testified as
to their reasons for striking ; and although the reasons varied in individual cases, those most
commonly stated were: The discharges of Gould , Steffes , the McMahons , and the 22 employees
on the night shift ; the Company ' s showing of preference for and support of AFL through its
foremen and supervisors , including the permitting of distribution of AFL literature and the
activities of Wayne Beck ; the Company ' s withdrawal from the consent election ; and the Com-
pany 's withdrawal from its agreement to recognize the CIO shop committee for grievances
pending the holding of the election.
A picket line was set up on the morning of June 20 , and was maintained through June 26.
Werner testified that Modell , Waldow, and Kornberger came to the plant on the afternoon of
the 20th , that he referred them to the no-strike clause of the contract , reminded them that no
grievances had been submitted for arbitration , and asked them to send out notices as provided
in the contract . After a meeting of its executive board, Local 471 issued , posted , and mailed to
the striking employees a notice dated June 20 in the form prescribed in the contract (see Ap-
pendix C) that their action was unauthorized and ordered them to return to work.
On June 22 or 23 , the Company mailed to all striking employees the following letter, which
was dated June 22.
Pursuant to Section 15 of our contract with the International Association of Bridge,
Structural , and Ornamental Iron Workers Union, Local No. 471, you have been notified by
Local 471 that the Strike action was unauthorized by both the Local and the International
Union, and that such strike is contrary to the non -strike provision of our existing col-
lective bargaining agreement.
You were directed to promptly return to your job and to cease any action which may
have affected our production . You were further notified that if conditions did not return
to normal immediately , the Union deemed the company justified in permanently replacing
you with new employees.
Therefore , pursuant to the terms of our collective bargaining agreement , you are
hereby notified that your employment with this company is terminated.
During the strike the Company increased to $50 its bonus payment (formerly $ 10) which it
paid to employees for bringing in new , acceptable employees to the plant . About 13 employees
were paid the increased bonus for so doing.
During the strike employees who continued to work were paid 10 hours ' pay for 9 hours
work . Werner testified that he directed the increased payment because of " the Inconvenience"
to the working employees in getting into and out of the plant, and that the payments were
actually continued , through oversight or disregard of his orders , for about a week beyond the
end of the strike.
Robert Christie , an affiliate of Local No. 8 of the Bridge and Structural Workers Union,
testified that shortly after the inception of the strike there was posted in the union hall of
Local 8 an order from Wagner Iron Works for around 110 men at the union scale of $2.64 per
hour . Because his own job was not in progress at the time, Christie went to the Wagner plant
and was interviewed and hired by Dyskow . Christie testified that he received the union scale
of $2.64 for the duration of the strike and that he got double that rate for Saturday work and
for all other overtime hours.
WAGNER IRON WORKS 477
From stipulations and from excerpts of the Company's payroll records, it appeared that
Christie worked on June 22, 23, 25, 26, 27, 28, and 29 ; that for the pay period ending June 23,
he worked 11.4 hours and was paid regular pay of $14.52 and overtime pay of $31. 55, totaling
$45.67; and that for the pay period ending June 30, he worked 50 hours, for which he was paid
$105.60 regular pay and $ 52.80 overtime pay, totaling $158.40. Stipulations and records also
establish that Don Dawson, James Dreblow, John Dreblow, Neil Kersten, and John Leslie
worked during the same approximate period as Christie, for roughly the same number of hours,
and received compensation at comparable rates . None of them was employed at any time be-
fore or after the strike.
On July 6, the Company made a general wage increase of 10 cents per hour.
9 The strike is ended; application for and denial of reinstatement; the constructive
discharges
On the evening of June 26 , following a hearing in the representation case, CIO held a meeting
of its membership at which it was voted to end the strike and to make an unconditional offer of
reinstatement. The CIO shop committee, with Henry Wiza as chairman and chief steward,
was selected to make the demand on behalf of all of the strikers. The committee called upon
Dyskow the next morning , accompanied by a large number of the strikers , who waited outside
the plant entrance Wiza, who acted as spokesman, informed Dyskow that he was making an
unconditional offer to return to work on behalf of the committee and of all employees who were
out on strike. Dyskow inquired if Wiza had received the letter (of June 22) from the Company,
and when Wiza acknowledged that he had, Dyskow replied, "That is it." As Wiza passed out,
going by the time clock, his attention was called to the fact that the timecards for some of the
strikers had not been pulled from the rack and he returned to Dyskow's office to inquire the
reason . Dyskow states that he would interview the men individually and would take individual
applications for reinstatement.
Thereupon the strikers lined up and were interviewed in Dyskow's office one at a time. In
most cases Dyskow asked each employee whether he had received the Company's letter, and
if the answer was in the affirmative, he told the employee in effect to abide by the letter, that
is, he was discharged . In some instances, however, Dyskow put the employees to work without
questioning them about receipt of the letter or about their participation in the strike. In other
instances , having confirmed receipt of the letter, Dyskow questioned employees about their
participation in the strike In all cases where the employees explained their failure to come in
to work on the basis of their objections to crossing a picket line, Dyskow reinstated them.
Dyskow similarly reinstated others whose limited participation in strike activities was
apparently satisfactory to him.
In still other instances, after Dyskow confirmed receipt of the termination letter, he in-
formed the employees they could return to work but would have to sign new applications as
new employees and would lose their seniority rights. Four of those exceptional cases con-
cerned David Horgan, Ervin Kusz, Wesley Bajanen, and Alexis Sobczak, who are alleged by
the complaint to have been constructively discharged on various dates subsequent to their
reinstatement. The circumstances in the four cases are substantially the same, and the facts
are not in substantial dispute.
None of the four men had worked during the strike, some had participated in the picketing
and some had not. Dyskow questioned all of them, to some extent, about why they had parti-
cipated in the strike, and each gave varying reasons for having done so. All were told that
they were being reinstated , but that they would have to sign applications as new employees
However, all except Horgan were permitted to go to work without signing a new application,17
and after some days on the job were informed that they must sign the new applications in
order to continue working. All refused, stating that they were quitting.
Dyskow could not recall his interview with Horgan, but admitted that he required new appli-
cations of the other three men (and possibly of other employees) as a condition to reinstating
them, and that he did so in the hope that they would quit. He admitted that Kusz, Bajanen, and
Sobczak were good mechanics, but testified that shortly after taking them back, he felt that he
had made a mistake in doing so, and that he then insisted on the new applications to inspire
them to quit. Dyskow testified that he imposed no such conditions on other strikers because
they were good workers whom he was anxious to get back to work and keep as employees.
On the basis of the testimony of the four employees and of the Company's records, it is
found that their discharges occurred on the following dates: David Horgan, July 2; Ervin Kusz,
July 3; Wesley Bajanen, July 3; and Alexis Sobczak, July 7.
17 Horgan , who had applied on June 29 , was directed to report for work on Monday, July 2;
and when he did so , Dyskow insisted on the new application as a condition to reinstatement.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though additional variations occurred from the normal course of the reinstatement inter-
views, they need not be summarized in detail. However, the case of the Fecteaus (father and
son) is of considerable significance. Dyskow first interviewed Gilbert, the son, and after
indicating that Gilbert might return to work, Dyskow inquired whether he wanted to remove
two CIO campaign buttons which he was wearing When Gilbert refused, Dyskow stated, "Well,
suppose we abide by the letter."
Dyskow also informed William, the father, that he could return, but that there was to be no
wearing of CIO buttons. William promised to talk with his son regarding what had happened
during the earlier interview , and to report the next morning with a decision . Both Fecteaus
reported to work the next day, without CIO buttons, and were put to work.
Dyskow's testimony was in substantial accord. Indeed, he admitted telling the Fecteaus
that he did not want any more wearing of CIO buttons in the plant, and that "we were rid of it
and we'd like to keep it that way." He admitted also having told William, ". . . for heaven's
sake don't start campaigning again... if you wear buttons it's all going to start over again.
I don't want you to wear buttons until a time which would be proper ." On further examination,
Dyskow explained that he considered a "proper time " to be after the union had been recog-
nized in the shop, and that it was all right for employees to wear AFL buttons because AFL
was the recognized representative of the employees.
10. Continued recognition and support of AFL
Though the contract with Local 471 expired on June 30, the Company continued to recognize
that Union as the representative of the employees and to negotiate with Handon and the shop
committee not only on grievances, but also on matters concerning wages, hours, and working
conditions. Indeed, Werner admitted that until the formation of the Temporary Committee in
January 1952, he continued to recognize the same AFL committee as the representative of all
the employees and continued to settle grievances with it under the provisions of the old con-
tract.
The Company also otherwise continued its program of assistance and support to AFL. Thus,
Handon (chief steward until December 1951) was permitted to continue , as before the strike,
the collection of dues and the solicitation of membership on company time and property. is
Michael Keuziak (who was an AFL committeeman) testified , without denial , that in September
or October Werner mentioned to him Werner's understanding that the AFL was having diffi-
culty collecting dues and inquired whether the Union would be interested in a checkoff of dues
and in negotiating with management thereon . Keuziak responded that the Union was always in
favor of a checkoff, and Werner requested Keuziakto have Handon get in touch with the Union's
executive board and have it contact Werner about the subject. Keuziak testified, however, that
he heard no more about the matter He testified also that the Union had made attempts to
procure a checkoff provision in earlier contracts with the Company, but without success.
In August, the Company had begun the publication of a newspaper, known first as The Wagner
Ironworker and later as The Wagner Ironews. Werner testified that the editorial staff was
selected so as to get a representative group from the various shops and departments; that in
some instances the persons themselves volunteered to contribute and to be responsible for
the information that was received ; and that the employees were permitted to do work for the
newspaper on company time at their regular rates of pay . Werner admitted that he proofread
the various articles printed in the newspaper before they went to press and approved them
for publication . He specifically admitted having proofread an article which appeared in the
issue of November 1951 entitled "Information about Union Activities in Our Shop," and which
contained among other things the following paragraph
The Government through the NLRB is investigating all the charges and will decide if and
when an election is to be held Until then the AFL will represent the men and the old
contract will be the basis for settling grievances [ Emphasis supplied.)
Keuziak testified that he had prepared the above article at Dyskow ' s suggestion , and that
Dyskow suggested several ideas for his consideration. Keuziak testified that though he dis-
regarded Dyskow ' s ideas , Werner later called him in and suggested that he incorporate
three additions which Werner had prepared . Keuziak replied that since the draft was supposed
to represent the Union ' s position , he should first consult the shop committee . Keuziak and
Handon then submitted the draft, with-Werner 's additions , to each of the committeemen and
to Dyskow , and each approved it. The article was thereupon published in the November issue
is There was also credited testimony that Handon continued to threaten employees with
discharge unless they paid dues to AFL
WAGNER IRON WORKS 479
over the signature of The Shop Committee ." It is unnecessary to summarize in detail the
contents of the rather lengthy article; it suffices to state that its general tone , though less
violent, resembled that of the campaign literature , and that it was emphatically favorable to
AFL and unfavorable to CIO, particularly the additions prepared by Werner.
11. The Temporary Committee is formed
Richard Willing and Keuziak , who had served on the AFL shop committee continuously,
testified that in January 1952 Werner called the committee into a conference and suggested
the formation of an independent union . Willing testified that Werner stated he knew that the
Local was having trouble holding its members , in collecting dues, and in getting new mem-
bers, and that he suggested that an independent union could probably set up a temporary
committee and get a temporary agreement with the company. Werner also pointed out a
number of benefits to be derived by such an arrangement , i. e., that the independent union
could collect dues from the men and could have a treasury of its own . Keuziak's testimony
was in substantial accord. Werner's testimony that the suggestion of a temporary committee
emanated from Keuziak, acting as spokesman of the AFL committee, is not credited.
The AFL committee decided that the Company' s suggestion should be accepted , but that it
should be first submitted to the employees. They requested and received permission to hold
a meeting on company time and property, to prepare and post announcements in the plant,
and to announce the meeting also over the plant loudspeaker , which was not used for em-
ployee announcements . The posted announcements were actually typewritten or mimeographed
in the Company' s office.
Except for Dyskow, all plant supervisors and foremen attended the meeting . Keuziak
presided and Danecki, an AFL committeeman , also spoke . They informed the employees
what Werner had previously told the committee , referred to the increasing failure by the
employees to pay dues to AFL. to employee dissatisfaction concerning the absence of a
contract , and stated that the committee through its talks with management had the im-
pression that if "a representative group" were formed , management would be willing to
negotiate with it. The employees were informed that another meeting would be held after
they had an opportunity to talk the suggestion over among themselves.
Arrangements with management for announcing and holding the later meeting were the
same as before . Additional arrangements were made for holding an election on company
time and for use of company property as election equipment . The company itself mimeo-
graphed the ballots which read as follows:
ARE YOU WILLING TO NEGOTIATE A TEMPORARY AGREEMENT WITH THE
COMPANY UNTIL SUCH TIME THAT THE CHARGES INVOLVING THE AFL, CIO,
AND THE COMPANY ARE SETTLED IN WASHINGTON?
YES 0 NO q
The eligibility list for voters was also obtained from the office . It included all employees
of the shop and all supervisors , with the possible exception of Dyskow ; and the supervisors
were actually permitted to vote , although they did not attend the second meeting or partici-
pate in the discussions which preceded the actual balloting . The balloting resulted in a vote
of approximately 4 to 1 in favor of negotiating a temporary agreement. The management
committee i9 was notified of the results and arrangements were made with it, as before, for
the announcing and holding of another meeting in the plant cafeteria on the following Sunday
for the election of a temporary committee.
None of the supervisors attended the Sunday meeting . An admittedly accurate account of
that meeting , approved by Werner , was published in the February issue of the Ironews, as
follows:
NEW COMMITTEEMEN AND STEWARDS ELECTED
Five committeemen and two stewards were elected to the interim cd35tmittee by the
employees of the Wagner Iron Works in an election Sunday morning , Jan. 27. The group
will represent the workers in the forthcoming negotiations for a teni&rary agreement
with the company.
Robert Bogardus was chosen by the committeemen as the chief day steward while
William Walkowski will hold the same position for the night shift . fiotfr are from Shop
19 Following the election, Werner appointed a management committee and delegated to it
his former function of handling labor relations.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two. Committeemen from the same building are Allen Krause and Paul Kutrovich.
Bogardus also is chairman and will present the new agreement that is to be okayed
by the workers.
Shop One representatives are Ervin Hansen , Peter Mishka, and Jospeh Garrella.
Since the factory ' s representatives asked that there be only five members on the bar-
gaining committee , it will be necessary for the workers ' delegates to rotate their
attendance at successive meetings.
The management ' s representatives are Chauncy Hart , Works Manager ; O. E. Jacobsen,
Chief Engineer ; James Dean , Loader Sales Manager ; and Joseph Dyskow , Shop One
Superintendent . (Emphasis supplied.)
Despite the clear understanding of the purpose of the Temporary Committee , the man-
agement committee took the position that the committee was not a permanent organization
and refused to negotiate with it for a contract until it was certified by the Board . Never-
theless, pending the subsequent organization of the Independent Union , the management
committee recognized the Temporary Committee as the representative of the employees
and negotiated with it, not only concerning grievances, but also concerning wages and con-
ditions of employment.
Thus. Bogardus testified that " a little labor trouble" arose over the Company ' s awarding
of merit raises , that the Temporary Committee negotiated with the management committee
concerning the subject , and as a result the Company made certain adjustments in its merit
raise plan . The management committee in turn called in the Temporary Committee in con-
nection with the Company ' s proposed profit - sharing plan and held with it a series of meetings
in which extensive discussions and negotiations were carried on. Various objections were
voiced by the Temporary Committee on behalf of the employees and various suggestions
were made , including one that the Company grant a straight -out wage increase . As a result,
the management committee offered to make certain changes and amendments in the plan,
including abolishment of a compulsory feature and including a wage increase of 21 percent
to cover the cost of the proposed employee contribution to the fund. However, no final
agreement was reached , and the plan has not been put into effect.
12. The Independent Union is organized
During the pendency of the negotiations concerning the profit-sharing plan , the Temporary
Committee had proceeded with plans to establish a permanent organization in the form of an
independent union . The committee met in the plant cafeteria after working hours , decided
on a name for the union , I. e., The Employees ' Independent Union of Wagner Iron Works,
decided that the employees should be canvassed and pledge cards obtained , and that a formal
organization meeting should be announced . It was also decided to consult Attorney Stephen
Scherba ; and Scherba later advised the committee that it should first stop holding meetings
on company time and property.
Announcement of the organization meeting, set for some 2 weeks ahead , was made by the
posting of circulars on plant bulletin boards and elsewhere around Shops 1 and 2 . E0 In the
meantime, a drive was conducted within the plant to obtain signatures to pledge cards.
The organization meeting was held at Irene's Tap, with Bogardus presiding . Bogardus
explained that a permanent organization was necessary, and a certification by the Board,
before the Company would bargain for a contract ; that there were several matters the
employees could get clarified with the Company , such as the profit -sharing plan and the
drawing up of a contract ; that a permanent organization would need money to operate on,
I. e., membership dues ; that bylaws were necessary ; and that permanent officers should
be elected . No issue was submitted to a vote because, Bogardus testified , it had been under-
stood at the time of the original meeting when the Temporary Committee was elected that
the employees were in favor of an independent union and had voted for it then . The members
of the Temporary Committee were thereupon elected by acclamation as officers of the in-
dependent Union.
Thereafter, to a date as late as May 13, 1952, the Company dealt with committees of the
Independent Union on the same basis as formerly with the Temporary Committee. Those
20 Though Bogardus testified that he did not request permission to post those notices,
Krause testified that management permitted them to remain posted over the period of ap-
proximately 2 weeks.
WAGNER IRON WORKS 481
negotiations were with both the grievance committee and the bargaining committee;n and
covered such grievances and conditions of employment as the profit-sharing plan, the
procural of milk by employees in Shop 2, the sale of safety shoes to employees (sponsored
by the Company) and payment therefor by payroll deductions , the organization of an em-
ployee safety committee , and various unsafe conditions and hazards around the plant which
the committees wished to have remedied or eliminated.
The Independent Union also held two membership meetings, subsequent to the formal
organization meeting , announcement of which was made, as before, by the posting of notices
on plant bulletin boards and at other places in Shops 1 and 2. Also in the meantime, on
March 3 , 1952 , the Independent filed its representation petition (prepared by Scherba)
under Case No. 13-RC-2551 , in which it was stated , among other things , that requests
for recognition had been made on February 13 and February 28.
B. Concluding findings - Cases 13-CA-849 and 13-CA-864
The evidence summarized above discloses in its entirety , and it is,hereby found , that upon
learning of the UAW-CIO activities among its employees , the Company immediately em-
barked upon a planned and continuous course of conduct which was designed (1) to interfere
with , restrain , and coerce its employees from engaging in those activities, (2) to discrimi-
nate against its employees because thereof, and (3) to interfere with , assist, support , foster,
and dominate the competing AFL Local and, subsequently , the Temporary Committee and
the Independent Union . The nature of the Company's campaign was most clearly disclosed
by its open assistance to and support and sponsorship of AFL in the competing membership
and election drives , in its subsequent continuing recognition of and support and assistance
to AFL from July through December ' 1951, and its later sponsorship , assistance and support
to, and recognition of the Temporary Committee and the Independent Union . Hardly less
revealing of Respondent ' s purpose to defeat the CIO was the overwhelming evidence of the
continuing series of coercive acts and statements and of the discharges of leaders or sus-
pected leaders of the CIO activities.
Though it must be found, therefore, that , in broad outline, the General Counsel ' s case of
assistance and domination , of discrimination, and of interference and coercion, was estab-
lished by the overwhelming preponderance of the evidence , yet this is not true of all the
specific acts and incidents which were included in the complaint and -litigated at the hearing.
Furthermore , it is appropriate and necessary that specific findings be made as to acts
which constituted, as well as to those which did not constitute , unfair labor practices within
the meaning of the Act.,
A further word, however , before proceeding to the consideration of the particular types
of unfair labor practices which are presented by the evidence . Because of the Company's
continuous campaign and course of conduct , which was so plainly dedicated to the defeat
of CIO, single acts or statements are not to be considered as having occurred in isolation
or as unrelated to others , but must be viewed instead in relation to the total congeries of
the facts which they make up and comprise and which disclose unmistakably the true nature
of the Company ' s conduct . The findings which follow have been made in that light, being
based on the preponderance of the evidence on the record as a whole . They are arranged
according to the three main types of unfair labor practices with which the Company is
charged, reserving for final consideration the subject of discrimination , which presents
the most difficult issues, both factual and legal , that are involved in the case.
1. Assistance, support, and domination
Despite the existence of the contract with AFL, a question concerning representation was
pending throughout practically the entire period of the Company's anti -CIO, pro-AFL,
activities ;n and by entering into the consent-election agreement , the Company recognized
is Krause and Bogardus agreed that prior to the time the bargaining committee was elected,
the grievance committee had acted both as a grievance committee and as a bargaining com-
mittee. Bogardus also testified that for a period of time the committee was acting both as
the Temporary Committee and for the Independent Union, because of certain organizational
difficulties encountered in Shop 1.
ttThus on April 5 Local 471 gave notice reopening the contract; on May 28 UAW-CIO
claimed majority representation , and on May 31 filed its representation petition. On June 6
the Company , AFL, and CIO signed the agreement for a consent election.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conceded the existence of such a question , which was solely within the Board's pre-
rogatives to investigate and determine . International Harvester Company , 87 NLRB 1123,
1127.
During such a period the statute dictates that employees be free of employer interference
in exercising their franchise to resolve the representation question and that the employer
refrain from disparate treatment of the competing unions . For it is consistently held that
an employer must maintain strict neutrality when his employees are simultaneously being
organized by two or more labor organizations . Harrison Sheet Steel Company v. N.L.RB.,
194 F. 2d 407 (C. A. 7), and cases cited; Hoover Co. v. N.L.R.B., 191 F. 2d 380, 386 (C. A.
6); Corning Glass Works , 100 NLRB 444 ; Sunbeam Corporation , 99 NLRB 546, and cases
cited . In such cases conduct showing favoritism for one of the competing unions defeats the
congressional purpose of affording complete freedom to employees in the selection of their
bargaining representative.
But the present case is not merely one where the employer violated its neutrality obli-
gation by a simple showing of favoritism , or by an active championing of 1 of 2 competing
unions, without overt promises of benefit to employees who joined or adhered to the favored
union and without overt threats against employees who joined the opposed union . Cf. Corning
Glass Works , supra , and cases cited . Instead the evidence disclosed a flagrant case of
threats and promises, of disparate treatment , and of actual discrimination against em-
ployees, designed to compel them to retain the incumbent AFL as their bargaining repre-
sentative.
First , it was plain that from the inception of the election campaign the Company, both
openly and covertly, gave AFL its full support and assistance. Secondly , it was obvious from
Werner ' s admissions and from other undisputed evidence that Werner deliberately sought
out and enlisted AFL 's help to beat the CIO, that it was Werner who prodded the AFL into
action , and that he suggested to it and counseled it in various courses of action, with promises
of indemnity in some cases . When Modell , in turn, suggested that AFL did not want the
election held and that Werner find something to do about it, Werner quickly reneged on his
consent agreement , assigning the specious claim, suggested by Modell , that the CIO charges
had not been waived.
Within the plant Superintendent Dyskow and other supervisors also actively and openly
participated in the campaign , championing the AFL' s cause and opposing CIO. Furthermore,
when dissatisfied with AFL's efforts and literature and with the results of its own open
assistance to AFL, the Company covertly supplemented AFL literature by campaign propa-
ganda more suitable to its taste, falsely attributing it to AFL.
The finding- here made that the Company unlawfully supported, assisted, dominated, and
interfered 'with AFL in violation of Section 8(a) (2) and (1) of the Act is based on the following
specific acts and conduct;
Werner 's enlisting of AFL help, his suggestions and encouragement of courses of action,
and his promises and granting of assistance in connection therewith (e. g., the promises
of 'indemnity ., the' furnishing of the mailing list ); and the printing , furnishing , and distribution
of anti-CIO campaign literature , falsely attributed to AFL.
The distribution of AFL literature on company time and property by Wayne Beck and other
employees ; the wearing of AFL insignia by plant supervisors , and the encouragement of the
wearing of AFL insignia by employees , while prohibiting equal opportunities for the distri-
bution of CIO literature, and while ordering the removal of CIO literature, stickers, and
insignia , in some cases under threat of discharge.
Permitting Beck to solicit employees for AFL in Shop 2, and similarly permitting Waldow
and Kornberger to solicit AFL membership in that shop, though denying similar privileges
to CIO. Cf. Joshua Hendy Iron Works, 53 NLRB 1411.
Permitting Handon to collect dues and to solicit members for AFL on company time and
property. 29
The withdrawal from the election at the behest of AFL for the purpose of continuing its
support to that union.
Continuing to recognize and to deal with Local 471 as the exclusive representative of its
employees , and continuing to give effect to its contract with that union after its expiration.
23 There was no contract provision which obligated the Company to permit such activities on
company time , and there was apparently no prior practice to permit them on company time
and property. Thus, Handon had found it necessary to request specific permission for these
special privileges outside the contract after the campaign began. Joshua Hendy Iron Works,
supra . Moreover , it is clear from all the evidence that Handon ' s activities , though under the
guise of collecting dues, were for the purpose of electioneering . Cf. ibid.
WAGNER IRON WORKS 483
Suggesting , supervising , and participating in the preparation by AFL committeemen of
the anti-CIO article, and publishing it without cost to Local 471 in the company newspaper.
Proposing to and agreeing with the AFL shop committee on the formation of a temporary
committee as an independent union for the purposes of collective bargaining and for the
negotiation of an interim collective -bargaining agreement.24
Collaboration with, assistance to, support of, and participation (through its supervisors)
with the AFL committee in the announcement and holding of meetings of employees or
company time and property for discussion of its proposal for an independent union, the
balloting thereon, and for the organization of the Temporary Committee. Harrison Sheet
Steel Company v. N.L.RB., supra; Rehrig-Pacific Company, 99 NLRB 163; H. N. Thayer
Company, 99 NLRB 1122; Sharples Chemicals, Inc., 100 NLRB 20.
It is also concluded and found that the Company assisted, supported, dominated, and inter-
fered with the Temporary Committee and the Independent Union through its aforesaid sug-
gestion of , assistance to, and participation with AFL in the organization of said labor or-
ganizations, through the furnishing of support and assistance to them by the announcing
and holding of meetings on company time and property and the furnishing of company
facilities and equipment, and through the recognition of the Temporary Committee, and
subsequently of the Independent Union, as the representative of the employees in the handling
of grievances and in negotiations and bargaining in respect to wages, hours, and other
conditions of employment
2. Interference, restraint , and coercion
By the following acts the Company interfered with, restrained , and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act:
The interrogation of employees , including the medium of its application form , regarding
their union membership and activities , particularly regarding their interest in and activities
concerning CIO.
Threatening employees with discharge and with an increased workload because of their
interest in and activities on behalf of CIO.
The surveillance , through Wayne Beck , of the employees ' union activities , his reports
to Werner thereon (see section III, A, 1, supra), and Werner's claims that he had employees
reporting to him concerning CIO activities. The latter claims, which were obviously intended
to foster the impression that the Company was engaged in surveillance, were also intim-
idatory in character. Knickerbocker Plastic Co., Inc., 96 NLRB 586, and cases-there cited.
Offering and paying to employees increased wages to work at the plant during the strike
at a time when a question concerning representation was pending; granting to employees who
worked during the strike 10 hours' pay for 9 hours' work to induce them to refrain from
joining the strike; promising and granting to employees an increased bonus for bringing
in new employees' during the strike, Thompson & Co., 100 NLRB 456; West Coast Casket Co.,
97 NLRB 820 ; offering to its employees increased benefits in the form of a profit - sharing
plan and wage increases to interfere with the employees ' free choice of a bargaining repre-
sentative at a time when a question concerning representation was pending.
Subjecting returning strikers to coercive individual interviews and conditioning their
reinstatement in some cases upon the removal of CIO insignia , the refraining from CIO
activity, the signing of new applications, and the forfeiting of seniority and other rights
and privileges.
It has been previously found under section III, A. 7, that the evidence fails to support the
allegations of the complaint as to the furnishing of medical services and doctor ' s care.
It similarly fails to establish the commission of an unfair labor practice by the alleged run-
ning down of strikers on the first day of the strike, and by the alleged surveillance by Beck
in the February 7, 1952, incident.
24 Regardless of what might have been the status of an interim agreement if one had been
entered into with AFL upon expiration of its contract (compare, for example , Phelps-Dodge
Cooper Corporation, 63 NLRB 686, with Joshua Hendy Iron Works, 12U0, what the Com-
pany suggested and agreed to was the organization of another assisted and dominated union,
through which it might control , or at least influence , collectively its relations with its em-
ployees, i. e., the Company' s real purpose was to provide the employees with a substitute
for a bona fide collective -bargaining representative . Cf. Indiana Metal Products Corporation,
100 NLRB 1040.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The former incident apparently occurred shortly after the formation of the picket line,
and, so far as the evidence shows, at the time of Werner' s first entrance to the plant following
the strike . So far as is shown by the evidence , Werner had no prior knowledge of the picket
line and no view of it until he started to make the turn into the entrance . Though Werner may
have been speeding , or even driving recklessly , there is no evidence that he made any threat on
the occasion; and certainly if he were attempting to run down the pickets as alleged, he would
not have applied his brakes in an obvious effort to stop the car without striking them . Further-
more , though Smejkel complained to the police, there is no evidence that they attempted to
arrest Werner or that they even warned or reprimanded him.
In the latter incident , though Beck ' s presence in the neighborhood was a suspicious cir-
cumstance, particularly in view of other evidence as to Beck ' s relationship to the Company,
Chiakulas' testimony did not establish that Beck was engaged in surveillance of Wagner
employees or of union activities. The .incident occurred in the heart of the metropolitan
downtown area . Beck was living at the Y. M. C. A., which was nearby . There was no evidence
that Beck knew of the activities planned for that evening and none that his presence across
the street was other than fortuitous. Certainly the evidence does not establish that his
purpose was to spy upon the activities of Wagner employees , or that Beck was engaged in
actual surveillance on the occasion.
3. Discrimination
a. The Gould-Steffes discharges
The evidence clearly establishes (1) that the Company, through its supervisory staff, was
fully aware of Gould 's and Steffes ' activities on behalf of the CIO , and (2) that Schnuck, who
made the discharge, had expressed his intention to Don McMahon (then an adherent of
AFL) to "do something about it, , that is, "to get rid of them." The chief issue is whether
the actual motivation for the discharge was their CIO activities , as charged by the General
Counsel , or whether they were discharged for cause , i. e., drunkenness , as contended by
the Company. rs
Certainly there is ample evidence to make out a prima facie case for the General Counsel's
contention . It will suffice to refer only to Schnuck ' s statement to McMahon , mentioned above,
to Schnuck's express statement to the men that they were discharged for passing out CIO
cards, and to his later conversation with Bestul which disclosed that that fact constituted
certainly a major part of the cause for the discharge . The question remains whether other
evidence refutes the prima facie showing and establishes the Company' s defense that Gould
and Steffes were discharged or drunkenness . Cf. Law and Son v . N.L.R.B., 192 F. 2d 236
(C. A. 10) citing Montgomery Ward and Company v. N.L.RB., 107 F. 2d 555, 560 (C. A. 7),
Sixteenth Annual Report (1951) National Labor Relations Board, p. 162 . Preliminarily, it
is important to note that even though a valid cause may exist for the discharge or disci-
pline of an employee , that fact does not excuse the discharge if the evidence shows that the
employer ' s real reason was to discourage union activities . Sixteenth Annual Report , supra,
pp. 162 -3, and cases cited.
The sharpest factual issue is whether Gould and Steffes were drunk or substantially
under the influence of liquor during the hour and a hall they were at the plant on May 26.
On the one side there was the testimony of Golnar , Bartsch , and Manhoff that they were
drunk or had been drinking excessively . On the other side there was the testimony of Gould,
Steffes , and Ebbinger that they had had nothing substantial to drink, and the corroborating
testimony of Bestul and others that their appearance , demeanor , and actions were normal
and did not indicate that either had been drinking.
The evidence as a whole requires the finding that the truth lies somewhere between
these conflicting versions . During their campaign of CIO solicitation , Gould and Steffes had
conducted a continuous tour of the taverns for 3 days and until shortly before they reported to
work on Saturday morning . Neither was an abstainer , and it would be wholly unrealistic to as-
sume that either had abstained in a setting and under circumstances so conducive to con-
viviality . It is therefore concluded that on Saturday morning each imbibed a sufficient quantity
za Counsel for the Company argue that while Gould and Steffes were not discharged because
of absenteeism , it constituted apart of the " framework" within which the discharge was made.
There was no evidence which would support a contention that the prior conduct of the two men
played any part in the discharge. Thus Schnuck, who made the actual discharge, testified that
he discharged them because of their drunkenness on Saturday, and not for their conduct on
Thursday or Friday . Furthermore , as has been found , Schnuck excused the Thursday and
Friday absences.
WAGNER IRON WORKS 485
of alcoholic beverages that the odor remained on his breath after he reported to work, and that
Bartsch and Manhoff detected that odor as they testified.
The evidence just as strongly requires rejection of the exaggerated accounts of Bartsch,
Manhoff, and Golner that Gould and Steffes were staggering and were in no condition to work.
Of crucial significance were these facts.
Bartsch was Gould' s foreman , but he did nothing about sending Gould home (as was cus-
tomary in such cases), and did not speak to him or reprimand him or report him to anyone.
Golner , though also aware of Gould' s alleged condition , even more inconsistently assigned
Gould to assist Bestul in an operation which was certainly not without hazard to a man who
had, as Golner claimed, been drinking excessively . Indeed there is no evidence that Gould
or Steffes were unable to perform, or that they did not perform , acceptable work until they
left the plant around 1:30 p.m. It is therefore clear that neither was sufficiently under the
influence of liquor to affect the performance or the quality of his work , or that the condi-
tion of either was such as to suggest to the Company' s supervisors that he should be sent
home.
Of course , the finding here made that Gould and Steffes were not substantially under the
influence of liquor does not of itself foreclose a defense that Schnuck had discharged them on
the basis of reports and his belief that they were. But the evidence also fails to support
that defense . Thus Bartsch and Manhoff denied that they had reported to anyone the condition
of Gould and Steffes prior to the discharge; and what Golner reported to Schnuck was that
Gould was circulating CIO cards.26
Finally. Schnuck's statement to the men themselves and later to Bestul disclosed that it
was not the alleged condition of Gould and Steffes , but their CIO activities, which had motivated
the discharge . Furthermore , the evidence showed that it was not uncommon for employees
to report with liquor on their breath ;27 that where they were noticeably under the influence,
and particularly where it was unsafe for them to work, they were ordered home ; and that it
was not customary to discharge employees for reporting drunk except where repeated prior
warnings had been given (as in the case of Jesus Moreno, who was included in the layoff of
June 4). The evidence is uncontradicted that neither Gould nor Steffes had previously been
guilty or , or had been warned about , inebriation on the job.
It is, therefore , concluded and found on the basis of the entire evidence that the alleged
drunkenness of Gould and Steffes was a mere pretext which Schnuck endeavored to support
after the discharge i8 and that to the contrary he effected the discharge because of their
activities on behalf of CIO. By such discharges, therefore, the Company committed an unfair
labor practice within the meaning of Section 8 (a) (3) and (1).
b. The discharge of the McMahons
The evidence disclosed that, as in the case of Gould and Steffes, the Company was fully
aware of the CIO activities and leanings of the McMahon brothers . The evidence also estab-
lished that , though the Company failed in its attempts to build a trumped -up charge against
the McMahons , it nevertheless proceeded to discharge them without such support and in
the face of evidence which disproved the charge .2' For example , though Foreman Krueger
assured Werner and Dyskow that Ray had been present on the afternoon in question, they
pointedly excluded Krueger from the ensuing conference and summarily discharged the
McMahon despite the brothers ' protests and their offers to disprove the charges against
them . Dyskow similarly ignored the assurance of some 10 to 15 employees the following
day that Roy McMahon was present on the afternoon he was charged with leaving the plant.
26 As found above, Golner 's testimony that he simultaneously reported that Gould and Steffes
had been drinking was impeached by his prior contradictory affidavit . That testimony was also
Inconsistent with his failure to order Gould home and his assigning of Gould to help Bestul.
IT Thus , Werner had testified at one point that "... there is too much drinking on the
premises of our plant . We might as well have swinging doors on the plant ; the men have been
so often frequenting the taverns.'
28 Other evidence strongly suggests that the Company sought to contrive still other defenses
after the Gould -Steffes and the McMahon discharges . Thus, on June 11, the Company wrote the
Federal Bureau of Investigation requesting that a security check be made on the four men
and on Larsen and Beck because it suspected that a work stoppage at the plant may have been
caused by "some element of sabotage ." Werner' s testimony offered no reasonable explanation
either for including the 4 dischargees in such a charge or for having delayed his request until
1 and 2 weeks after the respective discharges.
39 As pointed out under the summary of the evidence, the Banaszak -Bellin testimony fur-
nished no support for the charges against the McMahons.
283230 0 - 54 - 32
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This summary discharge on trumped-up charges, known to the Company to be without
foundation , would alone support the inference (in the light of the CIO organizing campaign,
the connection or suspected connection of the McMahons with it , the Company ' s prior demon-
strated disposition to restrain CIO activities , and the discriminatory discharges of Gould
and Steffes for their participation in the same campaign ) that the McMahons were similarly
discharged for their CIO activities and leanings . More direct evidence was furnished,
however , that their discharge was discriminatorily motivated by Werner ' s statement during
the discharge conference, in the presence of the AFL committee, that if he had a CIO spy
on his committee, he would get rid of him in a hurry. Similar and more vehement charges
that the McMahons were CIO spies were repeated in the Company's subsequent campaign
literature
It is, therefore, concluded and found that the Company discharged the McMahons because
of their activities or assumed activities in behalf of the CIO, and that it thereby engaged in
unfair labor practices in violation of Section 8 (a) (3) and (1).
c. The night-shift discharges
The discharge of the McMahons and the discharge of 22 employees on the night shift,
which were made almost contemporaneously , reflected a stepping up in the tempo and
severity of the Company's campaign to defeat CIO, and were coincident with the Company's
awareness of the progress that CIO had made, despite the Company's earlier restraints
and discrimination. Thus, on May 28, Chiakulas had written the Company that an "over-
whelming majority" of the employees had designated the UAW-CIO as their bargaining
representative, and on May 29 and 31 Chickulas' reports to the membership had disclosed
that organization on the night shift was far ahead of that on the day shift. Knowledge of the
latter fact must certainly be presumed to have reached the Company in view of the relatively
small size of the plant (N.L.R.B. v. Abbott Worsted Mills, 127 F. 2d 438, 440 (C. A. 1),
Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, enfd. 185 F 2d 285 (C. A. 2), cert.
den 312 U. S. 812), in view of Wayne Beck's activities and his relationship to the Company,
and in view of Werner's repeated boasts that loyal employees were reporting to him on
CIO activities.
The evidence offered by the General Counsel also plainly established a prima facie case
that the discharges on the night shift were discriminatorily motivated. Particularly persua-
sive were the following facts: (a) The timing and the precipitate nature of the layoff , without
warning (H. N. Thayer Co , 99 NLRB 1122 ); (b) the current and continuing expansion pro-
gram and the current and continuing advertising for, and employment of, new employees in
the same job classifications (ibid); (c) the failure to recall or to reemploy any one of the
dischargees though numerous new employees were hired during the ensuing 3 months and
though bonuses were paid for new employees during the strike (N.L.R.B. v. Nabors Co.,
196 F. 2d 272 (C. A. 5); Pennwoven, Inc., 94 NLRB 175), (d) the disregard of the seniority
provisions of the contract and of the relative ability of the employees; and (e) the Zbikowski
testimony that Wotta twice quoted Dyskow to the effect that the night shift would not again
be placed at full strength because of fears that CIO activities would be renewed on it.
The Company insists, however, that there was a fatal defect in the General Counsel's
proof of discrimination because the evidence failed to establish that the Company knew
either how many or which of the night-shift employees were CIO members and which AFL,
and failed to establish affirmatively that each of those terminated was laid off because of his
union membership or activities. Those contentions misconstrue both the purpose of the
Company's conduct, as found above, and the nature of the discrimination which is proscribed
by the statute
Thus, what Section 8 (a) (3) forbids is for an employer " by discrimination in regard to hire
or tenure of employment .. to encourage or discourage membership in any labor organization."
(Emphis supplied .) Respondent's conduct fell squarely under that prohibition . Thus, with
knowledge of the CIO 's success in organizing the night shift, the Company made an abrupt
and drastic layoff for the purpose of discouraging membership in that Union. 30 The fact that
the Company may not have known the membership of all the employees discharged and
retained , or that it may have retained some CIO adherents , or some employees whose
qualifications it considered superior , does not exculpate it from the charge that it effected
the reduction of night-shift personnel to discourage further organization by, and member-
ship in, CIO. See N.L.R.B. v. Nabors Co., supra, and cases cited; N.L.R.B. v. Cowell Port-
land Cement Co., 148 F. 2d 237 (C. A. 9); U. & S. Lumber Co., 92 NLRB 163. It is for this
m Cf. N. L. R. B. v. Deena Products Co., 195 F. 2d 330, modifying and enforcing 93 NLRB
549.
WAGNER IRON WORKS 487
reason that the discharge of Jesus Moreno must also be found to be discriminatory, since
the layoff was discriminatory in its conception.
Were other support needed for the conclusion that the night-shift terminations were to
discourage CIO organizing efforts, it is furnished by the shifting and inconsistent bases on
which the Company later sought to explain and defend its action. 31 Further analysis of the
evidence is unnecessary, since the summary under section III, A, 4, supra, makes sufficiently
clear the speciousness of the Company's claims. It is sufficient to note riefly the following:
The evidence substantiates none of the varying reasons which the Company assigned in the
termination notice, in Werner's statement on June 6 at the conference with CIO, in Werner's
testimony at the representation hearing on June 26, in Werner's letter of June 27 to the
hearing officer, in Marshall's letter of October 5 to the Regional Office, or in the Company's
brief. Werner's testimony in the present hearing was plainly inconsistent with the reasons
assigned earlier and was an obvious attempt to contrive a new defense after earlier ones
had been exploded. The inconsistencies between Werner's testimony at the present hearing
and that which he gave at the representation hearing, and his transparent and unconvincing
attempts to explain away those inconsistencies , were especially damaging to any disposition
to accept his present story. Indeed, his and Dyskow's testimony that the layoff had been planned
months ahead was completely disproved by Werner's testimony to directly contrary effect
at the representation hearing.
It is, therefore, concluded and found that Respondent discharged the 22 employees on the
night shift whose names are listed in Appendix A because of the prevalence of CIO activity
among employees on that shift, that said discharges were for the purpose of discouraging
CIO membership and activities, and were, therefore, discriminatory within the meaning of
Section 8 (a) (3) and (1) of the Act.
d. The Smejkel discharge
The Smejkel discharge incident set out under section III, A. 7, supra, consisted of two
segments, in the first of which Smejkel and Beck were involved. Beck's knowledge of Smejkel's
CIO sympathies was clearly established, and Smejkel's resentment of Beck's direction was
obvious in turn. Smejkel's testimony did not establish, however, that Beck deliberately
provoked a situation in which Smejkel would resist his supervision and thereby provide a
pretext for discharge. Cf. Lloyd A. Fry Roofing Co., 85 NLRB 1222. Indeed, the evidence
fails to suggest that Beck's direction to Smejkel was other than a normal and legitimate
exercise of Beck's supervisory duties. Yet Smejkel chose to adopt an attitude of antagonism
and of resistance to Beck's direction, and was thereupon given, and indicated acceptance
of, an opportunity to quit. The first half of the discharge incident therefore furnished no
basis from which to infer a discriminatory motivation.
In the later interview in Schnuck's office, Beck's reference to Smejkel's CIO sympathies
lent color, of course, to the General Counsel's contention that Smejkel was discharged be-
cause thereof. However, Beck's statement to Schnuck constituted his explanation of Smejkel',s
antagonistic attitude toward him, rather than an explanation of his own attitude toward or
justification of his manner of supervision of Smejkel. Smejkel's response to that was a more
emphatic display of resentment, coupled with a threat of assault. The actual discharge, then
made by Schnuck, seemed obviously induced by the final, explosive outburst, which Schnuck
could well have regarded as foreclosing the possibility of procuring Smejkel's acceptance of
Beck's direction, Cf. Fry Roofing Co., supra. To indulge the presumption that the cause
was Smejkel's CIO sympathies would require ignoring the more reasonable , or equally
reasonable , inference that Smejkel precipitated his discharge by his open resentment of
Beck' s supervision.
It is therefore concluded and found that the General Counsel has not maintained the burden
of establishing that Smejkel ' s discharge was discriminatorily motivated.
e. The constructive discharges
The evidence surrounding the Bajanen , Horgan, Kusz, and Sobczak discharges , summarized
under section III , A, 9, supra, discloses that Dyskow reinstated the four employees only after
Si The giving of evasive or contradictory reasons for a discharge may, of course, be
considered in determining the real motive for the discharges , N. L. R. B. v. Condenser
Corp. of America, 128 F. 2d 67 (C. A. 3); and the employer's inconsistent explanations of
a discharge is a circumstance indicating its antiunion motivation . N. L. R. B. v. Somerset
Shoe Company, 111 F. 2d 68 (C. A. 1); and see Mooresville Mills, 99 NLRB 572; Sandy Hill
Iron and Brass Works, 69 NLRB 355, enfd. 165 F. 2d 660 (C. A. 2); Lewis & Holmes Motor
Freight Co., 63 NLRB 996.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questioning them about the extent to which they had participated in the strike activities.
Though he informed them they would have to sign new applications and come in as new
employees, he put them to work, but some days later insisted that they file new applications.
That requirement was imposed by Dyskow with the admitted hope and intention of forcing
them to quit . Dyskow admittedly considered them good mechanics and advanced no explanation
of his action save the lame excuse that he felt he had made a mistake. It is clear from the
nature of his reinstatement interviews with the four men that what Dyskow was concerned
about was the extent of their participation in the strike ; and the inference is plainly justified
that Dyskow subsequently became dissatisfied with their explanations and effected their
discharge , constructively, because thereof.
It is. therefore , concluded and found that Respondent discharged David Horgan on July 2,
Wesley Bajanen and Ervin Kusz on July 3, and Alexis Sobczak on July 7, and thereafter
refused to reinstate them, because said employees engaged in concerted activities and joined
and assisted the CIO, and that the Company thereby engaged in unfair labor practices pro-
scribed by Section 8 (a) (3) and (1).
f. The union -security clause
The General Counsel urges , as violative of Section 8 (a) (3), the following union-security
clause of the contract:
Each of the Company 's employees to whom this agreement is applicable, as defined
in Section 1 hereof, who on the effective date of this agreement are members of the
Union, or who in the future may become members of the Union and each employee to
whom this agreement is applicable , hired during the life of this agreement , who is a mem-
ber of the Union when hired , or who may thereafter become a member of the Union, shall,
as a condition of continued employment, remain a member of the Union in good standing
to the extent authorized by Section 8 (A) (3) of the Labor- Management Relations Act,
1947.
It is the General Counsel ' s contention that this clause fails to accord to new employees
who are members of the Union when hired the prescribed 30 days grace period , though he
does not question that the clause could properly debar the grace period from new employees
who voluntarily join the Union.
It is true that certain language in Krause Milling Co., 97 NLRB 536 (upon which the
General Counsel relies ), if read literally, supports the view that the grace period must be
accorded all new employees , regardless of whether some may be members of the union
at the time they are hired . Thus, it is there stated:
For the reasons hereinafter appearing , the correct interpretation , we now believe, is
one whereby the 30-day grace period must be accorded only to those employees who
are not members of the union on the effective date of the union -security clause of the
contract, and to new employees hired after said effective date . (Emphasis supplied.)
But an analysis of the decision shows that a literal construction was not intended and
is not justified . In the first place , the Board did not have before it the precise question
now presented , since the clause under consideration in fact accorded to all new employees
the prescribed grace period. The language then used related to the question before the Board,
I. e., whether it should continue to follow the Worthington Pump case (93 NLRB 527), which
had held that union membership could not be required of either union or nonunion members
during the first * 30 days of a contract . The Krause Milling case cannot , therefore, be con-
sidered as dispositive of the present issue because , even though the quoted language be
considered as literally applicable to the instant question , it would constitute at best a dictum.
Furthermore , in concluding that the Worthingtoq Pump doctrine should be modified in
respect to its application to union members , the Board enumerated various reasons and
factors which it regarded as precluding an "escape " period or a "free ride" to employees
who were already union members at the effective date of the contract , and supported its
conclusions by an exhaustive analysis of the legislative history of the union -security pro-
viso of Section 8 (a) (3) of the amended Act. It is unnecessary to repeat the full summari-
zation there made , which is here incorporated by reference . It is sufficient to point out
that the following conclusions can be drawn from, and are amply supported by, the dis-
cussion : (1) "'Congress legislated solely with respect to employees not members of the
union" ; (2) Congress did not intend to provide an escape period for employees who were
union members; (3) Congress intended to provide a grace period for acquiring member-
WAGNER IRON WORKS 489
ship to (a) employees who were not union members at the time of the execution of a union-
security contract , and to (b) newly hired employees who were not union members.
Subsequent applications of the Krause doctrine support the foregoing conclusions. Thus,
it is now established that since employees who are union members on the effective date of
the contract can be required to maintain their good standing , employees who later choose
to join can also be subjected to the same conditions of employment-Allied Chemical and
Dye Corporation, 97 NLRB 1248; West Steel Casting Co., 98 NLRB 153; Jersey Millwork
Company, 97 NLRB 1452. Since the voluntary acquisition of membership ends the grade period,
no reason appears why the privilege should be available to employees who are union members
when hired . si Indeed , the General Counsel ' s position leads to the absurd result that though
voluntary acquisition of membership by nonmembers results in loss of the grace period, the
privilege continues in existence for new employees who are already members when hired.
Were there any doubt as to the validity of the clause on the foregoing basis, it would be
removed by the provision that membership should be maintained "to the extent authorized
by Section 8 (a) (3) of the Labor-Management Relations Act 1947." Thus, in American
Seating Company, 98 NLRB 800, the contract contained a clause which, without reference
to any other part of the contract, permitted the conclusion that nonmember employees at
the time the contract became effective were not accorded the prescribed grace period. How-
ever , a separate clause provided:
This contract is subject in all respects to the provisions of the Labor -Management
Relations Act, as it may be amended from time to time , there being no intent in this
contract to limit or abridge in any manner the rights and privileges extended by said
Act. . . .
The Board held that that clause incorporated by reference into the contract the grace periods
required by Section 8 (a) (3) in valid union -security agreements , and that when the alleged
objectionable clause was read in conjunction with the latter, it became evident that the
contract accorded to all employees , old and new , the statutory 30-day grace period in
which to become members.
Similarly, in Owens-Illinois Glass Company, 96 NLRB 640, the clause provided in part
that membership in the Union should constitute a condition of employment for all employees
"covered by this agreement subject to Section 8 (a) (3) of the Labor Management Relations
Act of 1947." The Board held that the incorporation by direct reference of the provisions
of Section 8 (a) (3) into the union-security provision constituted a lawful, if inartistic,
union-security agreement.
It is, therefore, concluded and found that the union-security clause in the AFL con-
tract did not conflict with or violate Section 8 (a) (3).
g. The discharge and the refusal to reinstate the strikers
Most of the issues surrounding the discharge of the strikers and the Company's subse-
quent refusal to reinstate many of them turn on the question whether the CIO strike violated
a no-strike clause in an existing contract. That underlying issue is both the most important
and the most hotly contested legal issue in the case. For if the strike be found to be in
violation of an existing no-strike clause, then it constituted an unprotected concerted activity,
and the Company was lawfully entitled to discharge the strikers, to discipline them as it
saw fit, and to pick and choose whom it would rehire and on such terms as it chose to
impose. United Elastic Corporation, 84 NLRB 768. If, on the other hand, it be found that
the strike did not violate the no-strike clause, then the discharges and the subsequent
refusals of reinstatement, being because of the employees' participation in protected con-
certed activities, would constitute unlawful discrimination forbidden by Section 8 (a)
(3).
The General Counsel and the Company take opposing positions on that basic issue, the
Company relying on the validity and the applicability of the no-strike clause, and the General
Counsel contending that the Company is barred, for various reasons, from asserting it
as a defense to the discharge. Before moving to a more specific consideration of the con-
s: Of course, the contract can in no case be applied retroactively so as to require past
membership as a condition of employment New York Shipbuilding Corporation, 89 NLRB
1446, and cases cited.
33 There is no evidence which attributes to any striker the commission of acts of violence
or of other conduct during the strike sufficiently flagrant in character as to have constituted
in itself unprotected concerted activity.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentions , it will be helpful to review briefly certain general principles which are pertinent
to the present situation and to mark out the lines , indicated with reasonable clarity by
existing guideposts , within which the issue is to be determined.
The entire scheme of statutory collective bargaining envisaged by the Act was designed to
eliminate strikes and industrial unrest, though Congress nevertheless , by Section 13, speci-
fically preserved and protected the right to strike - subject to limitations which are not here
pertinent Yet it is also well recognized that the right to strike may be waived by a no-
strike clause in the collective bargain ; and the Board has not hesitated to require adherence
to such a contractual obligation and to deny the protection of the Act to employees who strike
in the face of their commitment not to do so. See , e g., Scullin Steel Co., 65 NLRB 1294,
Joseph Dyson & Sons, 72 NLRB 445; Fafmr Bearing Co., 73 NLRB 1008, National Electric
Products Corp., 80 NLRB 995; United Elastic Corporation, 84 NLRB 768, 773; and cf. Dorsey
Trailers, Inc , 80 NLRB 478; N.L.R. B. v. Sands Mfg. Co., 306 U. S. 332.
A waiver of the right to strike, being in derogation of employee rights specifically guar-
anteed by the Act, is, however, to be strictly construed, cf. Dorsey Trailers, Inc., supra;
it is to be regarded as applying only to matters contemplated by the contract and to any
conduct by the other party relating to its provisions or to the normal relations of the parties
thereunder . See, for example , the concurring opinion of Chairman Herzog in the National
Electric case , supra. Furthermore , it is still an open question before the Board , despite
the majority holding in that case, whether a strike which is caused by unfair labor practices,
over matters not comtemplated by the contract, is violative of a no-strike clause. See
footnote 32 of H. N. Thayer Co., 99 NLRB 1122
It is to the foregoing field that attention is first turned and within which the opposing
contentions of the parties will be primarily considered and disposed of, though attention will
also be given separately to their more important subsidiary contentions which cannot be
determined within the present discussion.
It is necessary, therefore, to consider the present no-strike clause in its relation to
other contract provisions with which it was connected and in express consideration for
which the strike waiver was given The relevant provisions are set forth in Appendix C,
and need not be here restated . Briefly summarized , they expressed the desire of the parties
to avoid strikes, work stoppages , and lockouts, and to that end they set up a grievance and
arbitration procedure as the sole means of finally disposing of all grievances "that may
properly arise under the terms of [ the] agreement." Upon this mutual consideration, the
Company agreed to forego lockouts, and the Union agreed to forego strikes, work stoppages,
etc , except for the Company's refusal to arbitrate, pursuant to the contract, or for its
failure to abide by the award of the arbitrator In the latter respects the provisions resemble
familiar provisions which are frequently included in no-strike clauses.
But it is the specification of the types of grievances and disputes to be settled which is
significant. Thus, the limitations were laid down initially in section 13 of the contract, under
which the grievance procedure was made applicable to any grievance arising between the
Company and the Union, or between the Company and an ei.iployee, involving the meaning,
application, or interpretation of the contract. 34 Section 14, in turn, provided for the arbitra-
tion of disputes and grievances which were not settled under the provisions of section 13,
and specifically limited the arbitrator's authority to "the interpretation and application of
the express terms of [the ] agreement " Section 15 provided for the reciprocal waiver by
the Union and the Company of the right to strike and to lock out, based on the stated agree-
ment of the parties that the grievance procedure established by the contract was "adequate
to provide a fair and final determination of all grievances that may properly arise under
the terms of [the] agreement:'35 (Emphasis supplied.)
Any attempt to invoke a no-strike commitment by applying the foregoing provisions to the
present situation fails immediately when it appears that the strike was not related to, nor
was it on account of, any grievance or dispute which had arisen between the Company and
the AFL, the contracting union; nor was it related to or because of any grievance between
the Company and an employee, or the contracting union, which involved the meaning, appli-
cation, or interpretation of the contract To the contrary, the strike was provoked by an
accumulation of flagrant and aggravated unfair labor practices . And were they also to be
considered as grievances , they were grievances which were remediless within the terms
K This contrasts sharply with the broad provision in the National Electric contract for
settlement within the grievance procedure of M dispute (without limitation) between the
company and the union or any employee and the company.
The reference to company discipline and discharge in section 15 (C) related to cases in
which employees might engage in conduct prohibited by the no-strike clause. Cf. section 15
(D).
WAGNER IRON WORKS 491
of the contract, albeit CIO had attempted to adjust some of the earlier ones (as in the June
6 conference) in the face of the apathy and of the opposition of the contracting union. , s
What the contract procedure plainly envisioned was the final disposition, without strike
or lockout , of grievances arising out of the normal administration of the contract and the
normal relationship between the parties thereto. ?t Certainly there was no way to adjust
or to remedy , under the grievance machinery , the Company ' s campaign of assistance and
support/ to AFL and of discouragement of CIO Nor can it be said, by any stretch of the
imagination , either that the parties contemplated , or that the contract provisions were drawn
broadly enough to cover, a situation where the Company would engage, as here, in flagrant
and widespread unfair labor practices dedicated to the retention of the incumbent union as
the bargaining representative of the employees at a time when a question concerning repre-
sentation was pending . Furthermore , had that been the intention of the parties , it would
have failed because in conflict with the policy and purposes of the Act, being in derogation
of the right guaranteed to employees freely to select, under the aegis of the Board , a repre-
sentative of their own choosing. See Sections 7 and 9 (c), and cf Hoover Co. v. N. L. R. B.,
191 F 2d 380, 386 (C. A. 6) u
Stated differently, the contract neither reflected intention to include, nor expressly pro-
vided for, a pledge not to use self-help in the event of the serious violations of the law
disclosed by the present record. Since the contract did not preclude self-help in such cir-
cumstances, its use cannot constitute a breach of the contract, and accordingly the Scullin-
Dyson rule may not be applied.
It is also appropriate to note here an additional basis for distinguishing the National
Electric case, on which the Company relies, and that is the nature and the extent of the
employer conduct which provoked the strike . That case involved a single discharge,
required by the incumbent union under the express terms of its contract, but one which
the Board found to be discriminatory under the Rutland Court doctrine. 39 There was no
evidence that the employer had acted in bad faith in performing, at the union's insistence,
its contractual obligation, or that it otherwise acted with intent to defeat employees' rights.
That isolated and somewhat technical unfair labor practice is a far cry from the wide-
spread and flagrant unfair labor practices here found . Indeed, this case presents the exact
situation foreseen by Chairman Herzog in his concurring opinion " of unfair labor practices
of such provocative magnitude that, human nature and the Board's delays being what they
are, employes [could] reasonably be expected--or intended--by their employer to turn
to what would prove to be suicidal self-help." 40
The foregoing conclusions require the rejection of Respondent's main contention that
the striker was in violation of the no-strike clause . At the same time they have led to
acceptance of one of the General Counsel's basic contentions (i. e., that the no-strike clause
was not applicable), though not on the precise basis argued for in his brief.
The Company asserts, however, the two following subsidiary contentions which, if up-
held, would yet defeat the General Counsel's attack on the strike discharges: (1) That be-
cause the strike occurred within the 60-day period prescribed in Section 8 (d) of the Act,
the striking employees had lost their status and their rights as employees of the Company,
and (2) that the strike was itself an unfair labor practice, in violation of Section 8 (b) (4)
36 Thus, Waldow admitted that he was not averse to the discharge of the CIO adherents;
and other evidence established, as found herein, that Local 471 was currently conniving and
participating with the Company in the commission of other unfair labor practices Even had
the grievance procedure been applicable, resort to it by CIO or its adherents was obviously
futile
stln other words, the substitution of the grievance and arbitration procedure for strikes
and lockouts was a limited one, not complete and unreserved. Cf. Consolidated Frame Co.,
91 NLRB 1295, 1297, and cases cited.
38 These conclusions render immaterial Werner's offers to arbitrate the various discharges
and his testimony that he considered such grievances to be within the contemplation of the
contract. Furthermore, were it assumed that his understanding were correct, it is well
settled that a failure to exhaust grievance and arbitration procedures does not affect or
foreclose the Board's power to prevent and to remedy unfair labor practices Section 10 (a);
Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261; Todd Shipyards
Corporation. 98 NLRB 814, and cases cited; Monsanto Chemical Company, 97 NLRB 517.
39Rutland Court Owners, 44 NLRB 587, 46 NLRB 1040. That doctrine was later overruled
by the Supreme Court in Colgate-Palmolive-Peet Company v. N. L. R. B., 338 U. S. 355.
40 The General Counsel' s argument is rejected , however, that because of the provocative
nature of the Company ' s unfair labor practices , the strike should be found to be a construc-
tive lockout , and for that reason to be outside the ambit of the no - strike clause.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(C) of the Act, because an alleged object thereof was to force or require the Company
to recognize CIO in the face of a certification of AFL. Those contentions will be considered
in order, prior to giving attention to further arguments of the General Counsel regarding
the contract and the no -strike clause.
(1) Section 8 (d) is plainly inapplicable to the present case , since what it provides for are
certain procedures to be followed by a party to a collective-bargaining agreement who seeks
to terminate or modify the contract . But it was AFL, not CIO, who was the contracting
party here . Moreover , Section 8 (d) by its terms applies only to strikes to terminate or to
secure a modification or interpretation of a collective -bargaining contract . H. N. Thayer
Co., supra ; and see Wilson and Company . Inc., 89 NLRB 310. The present strike had no
such purpose . To the contrary, the finding that it was an unfair labor practice strike to
protest certain discriminatory discharges and other disparate treatment accorded CIO
during the election campaign plainly takes the strike itself outside the purview of Section
8 (d). Ibid.
(2) There was no evidence and no claim that the AFL local had been certified in a repre-
sentation proceeding under Section 9 (c), Perry Norvell Co., 80 NLRB 225, but only that,
pursuant to Section 9 (e), the Board had on February 8, 1949 , certified the results of a
union-authorization election that the required majority of employees had voted to authorize
Local 471 to make a union -security agreement. Since Local 471 was never certified under
the provisions of Section 9 (a), Section 8 (b) (4) (C) cannot be invoked. Ibid.
Nor does the evidence support the claim that the strike was called to force or require the
Company to recognize or bargain with CIO. Chiakulas' letter of May 28 , though requesting
recognition , referred to the existing representation by AFL and requested the Company
to refrain from entering into any new contract with that union pending settlement of the
representation question . Chiakulas ' testimony as to the strike meeting and the causes o
the strike (corroborated by many other witnesses ) showed that the employees were not then
concerned about obtaining recognition , but that they were protesting the various discrimi-
natory discharges and the Company' s various other unfair labor practices.
Though Respondent ' s defenses of the strike discharges have been rejected as without
merit, it is appropriate nonetheless to consider the more important alternative bases
urged by the General Counsel for defeat of Respondent 's reliance on the no -strike clause.
The General Counsel' s contention that the contract was illegal because of the inclusion
of the union-security clause was disposed of under the preceding section of this report. 'u
The General Counsel also argues , in reliance on the Thayer case, supra , that the contract
was illegal because the AFL was illegally assisted , supported , and dominated by the Com-
pany . But the assistance and domination which have been found herein occurred not at or
prior to the time the contract was entered into, but near the end of the contract term, and,
indeed , after a question concerning representation had arisen . Cf. Scullin Steel Co., suprP.,
at p. 1317. The Thayer case is, therefore, clearly inapposite.
The General Counsel also argues that various breaches of contract by the Company e2
render the present case an exception to the Scullin Steel case . Though certain breaches
occurred, and though the Scullin -Dyson doctrine is premised in part on the absence of
evidence that the employer had breached his contract, it is somewhat uncertain what type
or character of breaches the Board had in mind as sufficient to justify a subsequent breach
of a no -strike clause ; nor did the Board have under consideration in formulating that doctrine,
a case like the present where the contract breach most strongly complained of was com-
mitted in favor of the union ( not a party to the contract) whose strike action the General
Counsel now seeks to condone because of that very breach.
Thus , the General Counsel urges that the Company breached its contract by its recognition
of CIO on June 6 for the grievances 43 in the face of its contractual obligation to accord ex-
clusive recognition to AFL. Certainly there was a breach of the contract with AFL to the
extent stated , but it was one whose benefits were intended for and which were readily ac-
cepted by CIO. The breach, therefore , was one which would have been available to AFL to
assert in defense of any strike to which it might have resorted because of the Company's
A' Also see footnote 40, rejecting the constructive lockout argument. Other arguments by
the General Counsel which are not specifically referred to herein have been rejected.
42 I. e., the recognition of CIO; the layoff of the night shift without regard to the seniority
provisions; the inclusion of supervisors in the unit ; and the Company ' s unfair labor practices.
45Though the General Counsel contends that the recognition of CIO was on an equal basis
with AFL, it has been found herein that the recognition was limited to grievances only.
WAGNER IRON WORKS 493
breach of its contractual obligations to AFL. M But CIO having participated in and having
accepted the benefit of the breach cannot assert it in defense of its own subsequent conduct,
nor does the General Counsel, despite his representation of the public interest , stand in
any better position to defend or to condone CIO's conduct in striking , if it did , in violation
of the no -strike clause
The General Counsel also argues that the Company abrogated the contract by its aforesaid
recognition of CIO. That argument was plainly inconsistent with the position elsewhere
taken (and herein upheld ) that the Company continued its assistance to AFL by continuing
the contract in effect and by continuing to recognize AFL under it. The same inconsistency
exists as to the General Counsel ' s argument that the Company abrogated and rescinded the
contract by certain of its conduct following its consent to the election. Indeed, the General
Counsel endeavored to spell out a species of equitable estoppel on the theory that the strike
was provoked by the Company's conduct, including the consent to the election, the effect
of which constituted a representation that the Company had abandoned the contract, and
especially the no -strike clause . That argument, unsupported by authority , is rejected as too
strained and tenuous to warrant serious consideration.
The General Counsel's final contention is that the Company's letter of June 22 was not a
discharge but a tactical maneuver; that the actual discharge of the strikers occurred on the
application for their reinstatement on June 27, and was based solely on the fact that they
were active adherents of the CIO; and that the Company thereby waived the no-strike clause
and condoned the strike action . That contention was made in the face of a stipulation made
by Swander , who began the presentation of the case for the General Counsel , that the strikers
were discharged by the June 22 letter . However , Gore , who took over the case midway for the
General Counsel , and who was apparently unaware ofthe stipulation , later developed testimony
from a number of witnesses which in certain respects tended to support the present conten-
tion. Gore thereupon announced his theory of " tactical maneuver ," and prior to resting, moved
for and was granted permission to amend the complaint to allege that the strike discharge
occurred on June 27.
Respondent later moved for and was granted a recess of 3 weeks prior to pitting in its own
case Both during its own case and during the cross -examination of the General Counsel's
witnesses , the Company litigated fully the General Counsel ' s new theory and the amendment
to the complaint. These circumstances show that the parties in effect waived and abandoned
the stipulation by acts amounting to a virtual disregard thereof, see 60 C . J., "Stipulations,"
sec. 88 , p. 90, since evidence was offered and the issue litigated without regard to the stipula-
tion and without objection on that ground. Crecelius v. Chicago, etc. R. Co., (Mo.) 223 S.W.
413.
Though the Company urges in its brief that the stipulation was binding upon the General
Counsel , it makes no showing that it was misled or allowed to act to its injury in reliance
on the stipulation , Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403 , 444; 60 C. J.
"Stipulations ," sec. 101, pp . 97-8; 50 Am. Jur., "Stipulations" secs. 11. 14, pp. 611-12,
613-14 ; or that its rights were prejudiced in any manner by allowing the amendment to the
complaint . Under these circumstances the stipulation will be regarded as waived or aban-
doned, and the General Counsel ' s present contention will be considered on its merits.
It is true , as the General Counsel points out, that the testimony of a number of employee
witnesses concerning their reinstatement interviews with Dyskow strongly suggests that
Dyskow had not considered the June 22 letters as a discharge . It is true also that Dyskow's
testimony in part supports that view . However , the evidence is undisputed that it was Werner
who made the decision to discharge the strikers and who drafted the letter, with Marshall's
help , to effectuate that decision . Werner also directed Dyskow to prepare immediately a list
of all of the strikers , and it was to those so listed by Dyskow to whom the letters were sent,
with the intention of discharging them for not having returned to work in response to the
AFL's notice to do so.
Although it is not clear that Werner defined to Dyskow the word "striker ," Dyskow himself
placed a novel , if not anomalous , interpretation upon the term . Thus , he eliminated from the
list for discharge any employees from whom he had received reports, either directly or
indirectly (i. e., through foremen or nonstriking employees), that their absences from work
4t Though a basis also existed for a claim that the Company' s recognition of CIO for
grievances constituted an unfair labor practice (compare Hughes Tool Company, 56 NLRB
981, enfd . 147 F. 2d 69 (C. A. 5) with Douds v. Local 1250, 173 F. 2d 760 (C. A. 2); and
see the Trial Examiner ' s report in Miami Copper Company, 92 NLRB 322 , at 334-340),
no charge was filed by AFL and no allegation was included in the complaint to such effect.
Those facts and the conclusions here reached render it unnecessary to consider whether
further effects attended the Company ' s action in recognizing CIO.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not due to their participation in the strike but because they did not care to work while
it was in progress , or did not care to cross the picket line , or was for illness or vacation,
or for such other reason as persuaded Dyskow that the employee was not an active partici-
pant in the strike . He carried this to the point of eliminating even those who had actually
picketed for a short time but who had called in and excused their action on the ground that
they had done so only because " they wanted to be a good guy."
The foregoing circumstances do not establish that the letter was not a discharge The
Company ' s view was , and its action was taken on the premise that , the strike was in viola-
tion of the no-strike clause and that participation therein was not a protected concerted
activity. On that premise , Respondent was free to exercise any choice it saw fit with respect
to the termination of employees who participated in the strike . Cf. United Elastic Corp.,
supra . Thus, it might , for example , have chosen to discharge all employees who refrained
from working because of the strike , or again, only the leaders of the strike. Its middle
course of discharging only the more active participants in the strike activity was equally
within its prerogatives , had its premise been a valid one. Cf . Union Carbide and Carbon
Corp, 100 NLRB 689
Though Dyskow ' s subsequent handling of the reinstatement interviews could not have
efficacy , retroactively , to convert the Werner discharge letter into a tactical maneuver,
the evidence does establish , as the General Counsel contends , that Dyskow ' s selection of
employees for reinstatement was not free of discriminatory motivation . This was most
clearly demonstrated by the constructive discharges (see subsection e, supra), and by the
interviews with the Fecteaus . The latter interviews were of particular significance, since
they established that Dyskow reinstated the Fecteaus on the condition that they remove,
and that they refrain from wearing , their CIO insignia , and that they refrain also from
further CIO campaigning , because, as Dyskow stated to one of them , "we were rid of [CIO]
and we ' d like to keep it that way ." Though the record contains much other evidence which
supports the present conclusion , it is unnecessary to consider the point further in view
of the conclusions previously reached herein , and the fact that in any event the remedy of
reinstatement with back pay to run from June 27 would be identical , regardless of whether
the discharges , occurred on June 22 or 27 . See Happ Brothers Co. Inc., 90 NLRB 1513, 1518;
Globe Wireless , Ltd., 88 NLRB 1262 , 1268; Alside, Inc ., 88 NLRB 460, 462.
It is therefore concluded and found that on June 22 , 1951 , the Company discharged dis-
criminatorily the 57 employees whose names are listed in Appendix B hereto , 46 and there-
after refused to reinstate them because said employees engaged in concerted activities and
joined and assisted CIO, and that the Company thereby engaged in unfair labor practices
proscribed by Section 8 (a) (3) and (1).
C. Concluding findings - Case No. 13-CB-148
No substantial question is presented under the evidence insofar as the case against the
Respondent Union is concerned, since the following facts are conclusively established:
On June 15, Handon attempted physically to rip CIO insignia from an employee. From
July through December Handon made repeated threats to have employees discharged by
the Company unless they paid dues to Local 471.47 By those acts Respondent Union re-
strained and coerced employees of the Company in the exercise of rights guaranteed them
45 Under Werner ' s instructions , Dyskow had been authorized to take back as new employees
some of the better mechanics whose services Dyskow was particularly anxious to retain.
Dyskow admittedly misapplied those instructions. ,
46 The complaint as finally amended listed nine additional employees as strike discharges,
as follows: Kenneth Beyer, Harold Blink, Anthony Galaska, Lawrence Houston, Walter
Koehler , Marvin Markestad , William Packard , Theodore Wanick, and Ralph Welter . Careful
scrutiny of the record discloses no evidence that any of them was discharged ( i. e., was sent
or received a copy, of the discharge letter ) or was refused reinstatement after the strike.
Furthermore , although Respondent ' s time records show that none of them worked during the
strike , there is na evidence from which it can be found that their absence was due to their
participation in the - strike . The closest approach was furnished by the case of Lawrence
Houston (the only one of the group who was a witness) who testified only that he did not work
during the strike and did•npt picket , without attempting to explain whether his failure to work
was because of the strike."Firthermore , Houston admitted that he did not receive a discharge
letter , and there is no evidence that he was sent one.
47 Since the validity of the union-security clause has been upheld, it cannot be found that
Handon's threats to procure the discharge of AFL members for nonpayment of dues consti-
tuted an unfair labor practice prior to the expiration of the contract on July 1, 1951.
WAGNER IRON WORKS 495
in Section 7 of the Act, and thereby engaged in unfair labor practices proscribed by Section
8 (b) (1) (A): '-
On or before June 4, Respondent Union attempted to cause and did cause the Company to
discharge Roy McMahon and Don -McMahon because of their real or assumed membership
in and support -of"UAW-CIO, thereby causing and attempting to-cause the Company to dis-
criminate againsrt = said employees in violation of Section 8 (a) (3) of the Act, and thereby
engaged in unfaii 'labor practices proscribed by Section 8 (b) (2) of the Act.
For reasons which are fully stated in section III, B, 3 , f, supra , it is found that the Union
did not, by • maintaining and enforcing with the Company the union-security clause , engage
in unfair labor practices as charged in the complaint.
Upon the basis of the foregoing findings of fact and upon the entire record in the case the
undersigned makes the following.
CONCLUSIONS OF LAW
1. The activities of the Respondents set forth in section III, above , occurring in connection
with the operations of the Respondent Company set forth in section I. above, have i close,
intimate , and substantial relation to trade, traffic , and commerce among the several States
and tend to lead to labor disputes burdening And obstructing commerce and the free flow
thereof.
"t" UAW-CIO, Local 471, the Temporary Committee , and the Independent Union are labor
organizations within the meaning of Section 2 (5) of the Act. -
3. By dominating , interfering with, assisting , and contributing support to Local 471,
and by dominating , interfering with , fostering , supporting , and assisting the formation and
administration of the Temporary Committee and the Independent Union, the Respondent
Company has engaged .in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (2) and (1).
4. By discriminating in regard to the hire and tenure of employment of Gust John Gould,
Jacob Steffes , Roy McMahon, Don McMahon , Wesley Bajanen , Ervin Kusz , David Horgan,
and Alexis Sobczak and of the 79 employees whose names are listed in Appendices A and B
hereto attached , thereby discouraging membership in UAW-CIO and encouraging member-
ship in Local 471, Respondent Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
5. By interfering with , restraining , and coercing ` its employees in the exercise of the
rights guaranteed in Section 7 oFthe Act, Respondent Company has engaged,in and is engaging
in unfair labor practices withinihe meaning of Section 8 (a) (1) of the Act;`'
6 By causing the Respondent Company to discriminate against Roy McMahon and Don
McMahon in violation of Section 8 (a) (3) of the Act. Respondent Union, Local 471, has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 ?b)
1 (A) of the Act. -
7. By restraining and coercing employees of Respondent Company in the exercise of the
rights guaranteed '-; in Section 7, Respondent -'Utiioil has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
8 The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act. , a
[ Recommendations omitted from publication.]
APPENDIX !C
RELEVANT GRIEVANCE, ARBITRATION, AND NO-STRIKE
PROVISIONS OF THE CONTRACT
Section 13. (C) Should any grievance arise between the Company and the Union , or between
the Company and an employee or employees involving the meaning , application or interpreta-
tion of this agreement , an earnest effort shallbe made to settle such grievance in the following
manner.
Step 1. By the complaining employee, Shop Steward and Squad Leader. If not settled,
Step 2. By the Shop Committee, Shop Superintendent for the Company and/or his desig-
nated representatives. If not settled,
Step 3. By a representative of the Union , the Shop Committee and the Plant Manager
for the Company and/or hi's designated representatives.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 14. Any difference or dispute between the Company and the Union , or between the
Company and an employee or employees , which has not been satisfactorily settled in accord-
ance with the provisions of the preceding section of this agreement , shall, upon the written
request of either party to' this agreement be submitted to arbitration by an impartial arbi-
trator to be selected by mutual agreement of the parties. . . .
It is agreed that the authority of the arbitrator shall be limited to the interpretation and
application of the express terms of this agreement . The arbitrator shall have no power to
alter or add to the terms of this agreement , or to disregard this agreement , or to arbitrate
any dispute arising out of the negotiations of a new agreement , or a renewal of this agree-
ment, or any amendment thereto or supplement thereto.
Section 15 . (A) The Company and the Union agree that the grievance procedure provided
herein is a equate to provide a fair and final determination of all grievances that may properly
arise under the terms of this agreement , and shall be the sole means of disposing of griev-
ances. It is the desire of the Company and the Union to avoid strikes and work stoppages
and lockouts.
(B) The Union agrees that neither it nor its members , individually or collectively, will,
during the term of this agreement , cause, permit, approve , or take part in any strike,
picketing , sitdown , standin, slowdown , or other curtailment or restriction of production or
interference with work in or about the Company ' s plant or premises , except for refusal of
the Company to arbitrate in accordance with Section 14, or failure of the Company to abide
by the award of the Arbitrator.
(C) If the Company shall discipline or discharge any employee or employees who shall
engage in conduct hereby prohibited , such discipline or discharge shall not be subject to
review upon any ground other than that the employees did not engage or take part in such
conduct . Such discipline or discharge shall be imposed within seven (7) working days after
such violation has terminated ; otherwise , such discipline or discharge shall be subject to the
regular grievance procedure.
(D) During any period in which employees are engaged in any violation of this section, the
Company will not be required to bargain with representatives of the Union with respect to
the employees engaged in such violation.
(E) In the event that a violation of this section occurs or impends, the Union in good faith
(1) will make every effort to prevent it or to terminate it, as the case may be ; (2) will
immediately post notices throughout the entire plants affected thereby , on the Union' s Bulle-
tin Boards referred to in this agreement , which notices shall be in the form hereinafter
quoted in this subsection (E), and signed by the President or Vice President and the Recording
Secretary of the Union and/or an authorized officer of the International Union ; and (3) will
take such further steps as it , in its discretion , considers reasonable and appropriate under
the circumstances , in order to prevent such violation or to bring it to an end , as the case
may be.
"To All Members of SHOPMEN'S LOCAL UNION NO.
of the INTERNATIONAL ASSOCIATION OF BRIDGE
STRUCTURAL AND ORNAMENTAL IRON WORKERS:
"Dated:
"You are advised that certain action took place today in this plant. This action was
` unauthorized by both the Local and International Union.
"You are directed to promptly return to your respective jobs and to cease any action
which may affect production . The grievance(s) in dispute will be processed through the
regular grievance procedures provided for in your contract.
"If conditions do not return to normal immediately, we feel that the Company is justified
in permanently replacing you with new employees."
(F) The Company agrees that in consideration of the due performance by the Union of the
undertakings herein assumed by it with respect to preventing and terminating violations of
this section , there shall be no liability on the part of the Union, its officers , agents, or on
the part of its members as such , for damages or otherwise.
(G) The Company shall not engage in any lockout of the employees.