Carter Carburetor Corp.

In the Matter Of CARTER CARBURETOR CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO), LOCAL 819 and MUTUAL WORKERS UNION3 PARTY TO THE, CONTRACT Case No. C-2411.-Decided Illarcit 22, 1943 Jurisdiction : carburetor and fuse manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: promulgation and enforcement of a rule prohibiting union solicitation and discussion insofar as it was applicable during leisure, periods and at places where safety or production would not normally be affected. Company-Dominated Union: successor organization initiated by officers and adherents of an organization found to be company dominated in a previous case, using predecessor attorney and facilities ; abandonment of predecessor and organization of successor approved by employees at same meeting; bylaws of the two organizations, substantially the same; organizational activities permitted on company time and property ; pro-successor and anti=union statements by supervisors. Discrimination: discharge of president of union allegedly for violating no solici- tation rule, found discriminatory when he did not solicit during working hours, respondent relied on accusations of pro-successor and anti-union employees without investigation, and respondent made inconsistent' defenses ; discharge of active union employees for soliciting union membership during lunch hour found discriminatory, discharge of other employees for stopping work to protest discharge of union president, or leaving work to join picket line in protest of discharges, or failing to report for work and joininb picket line in protest of discharges, found to be discriminatory, for employees were penalized for engaging in activity permitted by the Act. Remedial Orders : dominated organization disestablished, and 'contract there- with, abrogated; rescind no solicitation rule except insofar as it prohibits union activity and discussion during working ihours at places where work is being performed ; reinstatement and back pay ordered. DECISION AND ,ORDER On November 7, 1942, the Trial Examiner filed his Intermediate Report in this proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices 'affecting com- merce, and recommending that the respondent cease and desist there- from and take certain affirmative action, as set forth in the copy of 48 N. L. R. B., No 48. 354 CARTER CARBURETOR CORPORATION 355 the Intermediate Report annexed hereto. Thereafter, the respondent and Mutual filed exceptions. to the Intermediate Report and the re- spondent filed a brief in support of its exceptions. Oral argument before the Board was requested but later waived by all of the parties. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The., rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations made by the Trial Examiner in his Intermediate Report, except in the respects listed below : 1. The Trial Examiner found that Harry Thompson, vice presi- dent of the Guild, and 7 or 8 other employees held a meeting in the Guild office in the Grand-St. Louis Building prior to August 8, 1941, at which time plans for the formation of a new union. were discussed. We are not satisfied that the evidence supports this finding, and ac- cordingly we do not . rely on it. This does not alter our conclusion that Mutual grew out of and was successor to the Guild, and that the respondent dominated the formation and administration of Mutual and has contributed support thereto. 2. The Trial Examiner found that the notice posted by the re- spondent on February 25, 1942, and the Interpretation placed thereon, as set forth in the Intermediate Report, was violative of the Act. We agree with the Trial Examiner insofar as the rule and it, inter- pretatiori extended beyond actual Working tine. The record , shows that the respondent maintains a large recreation room and that em- ployees congregate there as well as in the locker rooms before working hours, during rest periods, the lunch period,-and after working hours. During these leisure periods employees admittedly and naturally talk to each other about many and varied subjects, including unions. The record reveals no cogent reason for the respondent's attempt to exclude union matters from these discussions among employees. An employer may promulgate and enforce a rule prohibiting union activity during working hours in places where work is being performed in order to insure continuous production and maintain plant discipline during working hours, provided, of course, that there is no discrimination in the application of the-rule. In the absence of some special circum- stances which do not appear here, a rule which excludes union matters from the discussion of employees during their leisure periods at places where safety or production would not normally be affected constitutes an unreasonable impediment to union organization and interferes with, restrains, and coerces employees in the exercise of the rights guaranteed by the Act. We therefore find that the rule promulgated by the respondent violated the Act insofar as it extended 521247-43-vol. 48-24 .356 DECISIONS OF..NATIONAL LABOR RELATIONS BOARD beyond prohibiting union activity during, working hours at places where work was being performed, and we shall order the respondent to cease from enforcing the rule except as provided herein.' Although we 'hold that an employer may properly prohibit union activity during working hours at places where work is being performed, we agree with the Trial Examiner and upon all the evidence find that the respondent promulgated and posted the broader notice herein to impede the Union's organizational campaign and to protect Mutual. -3. The Trial Examiner found that the respondent discharged Ever- ett Clark, president of the Union, in violation of Section 8 (3) of the Act. The respondent contended that Clark was discharged for violat- ing the rule prohibiting solicitation. There is conflict in the evidence concerning this contention, and the Trial Examiner did not resolve these conflicts. Since we have held that an employer might properly prohibit union activity during working hours at places where pork is being performed, it becomes necessary to examine, and resolve these conflicts in the evidence. The respondent maintains that after Fore- man Lippert and Plant Superintendent Nieman "ascertained" that Clark had solicited, five named persons on February 26 and had handed out application cards to "others" in the locker room, Nieman ordered Lippert to discharge Clark. Clark admitted- that early in the morning of February 26, before work began, he had talked to some fellow employees in the locker room about the Union, and that he handed out one card to Lou Hellmann, a Mutual steward, and asked if he would sign it. Hellmann did not sign. Frank Blackford, a member of Mutual employed in the maintenance department, testified that Clark also solicited him at this time in the locker room without success. Clark admitted soliciting Blackford, but placed it 2 days earlier on February 24. Glen-Wood Thomure, and Cornelius Abel, both Mutual stewards, the former employed in the shipping and re- ceiving department, and the latter in the parts and service department, testified that about 8: 10 a. m., 10 minutes after work was scheduled to, begin, they were talking together for a few minutes at Thomure's place of work, that Clark came by and asked them if they wanted to sign up with the Union and laid union application cards on the bench, that neither replied but turned to their work and that Clark ,immediately left. Clark denied giving application cards to them and testified that he had no recollection of talking to them. Lester Thomas, a member of Mutual and receiving clerk in the shipping and receiving department, testified that between 9: 30 and 10 a. m. both 1 See Matter of The Denver Tent and Awning Co and Warehouse and Distribution Woikers Union No. 217, I. L. W. U., Case No. C-2413, 47 N. L. R. B. 586: Matter of United States Cartridge Company, et al., Cases Nos C-2400 to C-2403, inclusive, 47 N. L R. B 896. CARTER CARBURETOR CORPORATION 357 Clark and Bryant solicited him. Clark testified that he did not re- member talking to Thomis on February 26, and that if he had talked to him he thought he would remember it. Bryant denied the testi- mony of Thomas. These five persons are the persons for ,the solicita- tion of whom the respondent claims it discharged Clark. Hellmann was admittedly solicited, but this occurred prior to work- ing hours during Clark's leisure time and was, therefore, activity in which Clark had a right to engage. The Trial Examiner did not credit the testimony of Blackford and found that Clark's solicitation of him occurred as testified to by Clark on February 24, 1942. We agree with this conclusion and find that Clark did not solicit Black- ford on February 26, 1942. Even if Clark had solicited Blackford on February 26, and Blackford testified, the activity would have been proper since it is alleged to have occurred prior to working hours. Thomure testified on two different occasions at the hearing. On the first occasion he was called as a witness by Mutual. On cross-exami- nation by the respondent, he testified that Clark and Bryant had so- licited him to join the Union but he could not fix the date. He further testified that he was not solicited to join the Union after the respond- ent posted the notice of February 25, 1942. Later in the hearing he was recalled as witness by the respondent and testified that Clark solicited him and Abel to join the Union, as set forth above. Thomure admitted talking to respondent's counsel subsequent to his first testi- mony and attempted to explain his changed testimony on the ground that he had misunderstood the questions when he previously testified. He stated that when first questioned about the matter, he thought he was being asked whether Clark had solicited- him to join Mutual. Thomure admitted that he knew that Bryant and Clark were active in the Union and that he had never known Clark to be a member of Mutual. We are unable to credit Thomure's explanation for the rea- son that when he first testified he stated that Clark and Bryant had solicited him to join the Union in response to a question as to who had solicited him for this purpose. We do not believe that Thomure could have thought that the question referred to Mutual, as he later testified, and yet answer that Clark and Bryant solicited him when he admitted knowledge that Clark was a union member and not a Mutual adherent. Thomure testified that he told Foreman Lippert that Clark had solicited him, but did not testify that he told Lippert that Abel was present. Abel corroborated the testimony of Thomure concerning the alleged activities of Clark. Abel further testified that he had not reported the matter to any official of the respondent nor had he spoken to them until they called him a few days before he testi- fied for the second time at the hearing. Abel was not questioned about the alleged solicitation the first time he testified as a witness for 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mutual.2 Foreman Lippert testified that Thomure told him that Clark solicited both Thomure and Abel. Both Thomure and Abel were Mutual stewards and testified that they were engaged in a con- versation unrelated to their work when the alleged solicitation took place. Abel worked in a different part of the plant and apparently had no business in the shipping department with Thomure. Both Clark and Bryant testified that they were engaged in unloading a truck at the time Clark is alleged to have solicited Thomure and Abel. In view of the contradiction in the testimony of Thomure and the failure of Abel to testify about the alleged incident when he first testified, and the intervening change in Thomure's testimony after both had spoken to the respondent's counsel, plus the fact that the Trial Examiner credited the testimony of Clark in other respects, we are unable to credit the testimony of Thomure and Abel, and we find that Clark did not solicit them to join the Union on February 26, 1942. Both Clark and Bryant denied soliciting Thomas, a member of Mutual and brother-in-law of Foreman Lippert's assistant, on February 26, 1942. The Trial Examiner credited the testimony of Clark and Bryant in other respects. Since both were engaged in unloading a truck in another part of the plant at the time in question, we find that they did not solicit Thomas to join the Union on February 26, 1942. Although we find that Clark did not solicit Thomure, Abel, and Thomas to join the Union, during working hours, and that he did not solicit Blackford on February 26, 1942, the respondent allegedly thought that he had solicited them, as well as Hellmann, and allegedly discharged him because it thought he had done so. The respondent thus allegedly relied in part on the admitted solicitation of Hellmann prior to working hours, and the claimed solicitation of Blackford at the same time. As we have pointed out above, the respondent had no right to limit the activities of Clark outside of working hours, and consequently had no right to rely upon such activities as a basis for Clark's discharge. Also we are satisfied that the respondent was not in anywise motivated in discharging Clark by the belief that he solicited the other three employees during working hours. We have found that he did not in fact do so. All three employees who testi- fied that they were solicited during working hours were members of Mutual; two were Mutual stewards. The respondent did not call in Clark and advise him of the accusations or give him any opportunity 2 It is noted that Thomure first testified at page 2226 of the record and Abel at page 2281 of the record. Thomure denied that anyone solicited him after the posting of the February 25 notice, and Abel was not questioned about it. Thereafter, the respondent's counsel discussed the matter with both of them, and Thomure was recalled and changed his testimony starting at page 2895 of the transcript and was followed at page 2912 of the transcript by Abel who then corroborated Thomure's changed testimony. CARTER CARBURETOR, CORPORATION - 359 to answer them. The claims of the pro-Mutual and anti-union em- ployees were taken at face value and seized upon by the respondent to justify, the discharge of the president of the Union and one of its 'most active leaders. As set out in the Intermediate Report, the respondent shifted and enlarged its reasons for Clark's discharge at -the time of the,hearing, but most of the reasons put forth at the hearing have, no application to Clark and tend to support the con- elusion that the respondent was attempting to find a basis to defend- its discharge of the Union's president. - The difference in treatment between Mutual and union solicitors, the respondent's inconsistent defenses, the respondent's failure to investigate alleged violations of the rule, the respondent's readiness -to accept at face value statements of anti-union and pro-Mutual ad- herents as to such violations, without giving Clark any opportunity to give his side of the story, the' fact that Clark did not solicit on 'Company time, as well as the evidence as a whole, lead' us to conclude that the alleged violation of the rule was a mere pretext and that the seal reason for the discharge of Clark was the respondent's' desire to halt the Union's organizational efforts by ridding the, plant of the Union's leading adherent.' We find that the respondent, by discharging Clark, discriminated in regard to hire and tenure of employment employment and thereby ' discouraged membership in the Union and encouraged membership in Mutual. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the, respondent, Carter Carburetor Corpo- ration, St. Louis, Missouri, its officers, agents, successors, and assigns, shall : , 1.1 Cease and desist from : (a) Dominating or interfering with the administration of Mutual Workers' Union or any reorganization thereof, or with the forma' tion and administration of any other labor organization of its em- ployees, and from contributing support to said labor organization or to any other labor organization of its employees; (b) Giving effect to the contract of October 20, 1941, with Mutual Workers' Union or to any modifications, extensions, supplements, or renewals thereof, or to any superseding contract with it which may now be in force; - This conclusion is strengthened by the respondent 's failure at the time to discipline Bryant who allegedly solicited Thomas with Clark., Likewise, the respondent failed to discipline Abel or investigate what he was doing with Thomure in a part of the plant where he had no business. - 360 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD (c) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 819, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mu- tual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will. effectuate the policies of the Act : (a) Withdraw all recognition from Mutual Workers' Union as. the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates. 6f pay, hours of employment, or other conditions of employ- mer}, and completely disestablish said organization as such repre- serztative; (b) Rescind immediately the rule imposed on February 25, 1942, except insofar as it prohibits union activity and discussion during working hours at places where work is being performed; (c) Offer to Everett Clark, William Breeden, Eugene Walter, Melda Hopkins, Paul Bryant, Robert Henson, Susie Barbee, Belvia Fowler, Elva Krueger, Bertha Newman, Ethel Ridenhour, Frank Weaver, Josephine Fagas, Alleyne Hauchin, Velma Mullins, Irene Butler, Ethel Flowers, Mildred Price, Ola Winsel, Martha Stotko, Ed- win Langanke, Thomas Kennedy, William Harkins, Ira Harris, Paul Bennett, Ernest Shamel, James Clark, Harold F. Clark, Ernie Jones, Charles Mitchell, and Henry Bauer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (d) Make whole Everett Clark, William Breeden, Eugene Walter, Melda Hopkins, Paul Bryant, Robert Henson, Susie Barbee, Belvia Fowler, Elva Krueger, Bertha Newman, Ethel Ridenhour, Frank Weaver, Josephine Fagas, Alleyne Hauchin, Velma Mullins, Irene Butler, Ethel Flowers, Mildred Price, Ola Winsel, Martha Stotko, Ed- win Langanke, Thomas Kennedy, William Harkins, Ira Harris, Paul Bennett, Ernest Shamel, James Clarke, Harold F. Clark, Ernie Jones, Charles Mitchell, and Henry Bauer for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to'each of CARTER' CARBURETOR- CORPORATION . , 361 them, respectively, of a sum of money-equal to that which each7 would normally have earned as wages during the period from,the date of such discrimination to the date of the offer of reinstatement, less his net earnings during such period, as set forth in the section of the In- termediate Report entitled "The Remedy"; (e) Post immediately in conspicuous places at its plant at St. Louis, Missouri, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 ('a), (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; (3) that the respondent's employees are free to become or remain mem- bers of International Union, United Automobile, Aircraft & Agri- cultural Implement Workers of America, Local 819, affiliated with the, Congress of Industrial Organizations; and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; and (4) that the con- tract with Mutual Workers' Union, dated October 20, 1941, and any modifications, supplements, extensions, or renewals thereof, and any superseding contracts, are invalid under the National Labor Rela- tions Act,. without prejudice, however, to the assertion by the em- ployees of any legal rights acquired thereunder; (f) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from'the date of this Order what steps the respondent has taken to comply herewith. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Jack G. Evans and Mr. Charles K. Hackler, for the Board. Hardy, Stancli ffe and Hai dy, by Mr John L Farrell, of New York City, and Mr. William R. Gentry of St. Louis, Mo., for the respondent. Mr. Fred J. Hoffineister of St. Louis. Mo., for the Mutual. STATEMENT OF THE CASE Upon an amended charge duly filed on April 2, 1942; by [International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (CIO), Local 819]' herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated May 23, 1942, against Carter Carbure- 1 The complaint described the charging union as "United Automobile Workers of Amer- ica, Local 819, affiliated with the Congress of Industrial Organizations." By agreement at the close of the hearing the pleadings weie amended to describe the Union by its correct name as given above. ' 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .for Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section ,8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Ace, 49 Stat 449, herein called the Act. Copies of the complaint and notice of hearing were duly, served upon the respondent, the Union, and Mutual Workers' Union, herein called the Mutual. With respect to the unfair .labor practices, the complaint alleged in sub- stance: (1) that from July 5, 1935, to June 2, 1937, the respondent dominated and interfered with the administration of Carter Carburetor Corporation Em- ployees' Association, herein called the Association, and thereafter dominated and interfered with its successor, Carburetor Workers' Guild, herein called the ,Guild, and contributed support to Said organizations, as found by the Board in its Decision and Order issued March 31, 1942, amended April 17, 1942; 2 (2) that about August 8, 1941, and thereafter, the respondent instigated, assisted, and en- couraged the formation and growth of the Mutual in specified ways, dominated and interfered with its administration, and gave financial and other support thereto; (3) that the Mutual was instigated as aforesaid and formed as successor to, the alter ego, of and in effect the same as the Guild, and thereafter the Mu- tual 'received assistance from and became tainted with all of the respondent's unfair labor practices as found by the Board; (4) that on August 20, 1941, the .respondent entered into an illegal contract with the Mutual ; (5)' that on Feb- ruary'25, 1942, the respondent -posted in its plant a rule prohibiting solicitation of membership upon its property or time on pain of dismissal, interpreted the rule to prohibit the solicitation or talk of labor organizations in the plant, and confined it to matters pertaining to labor organizations; (6) that about Feb- ruary 26, 1942, the, respondent discharged 28 named employees, and about Feb- ruary 27, 1942, 3 others, and has refused and failed to reinstate them, because of their union membership-and activities; and (7) that by the foregoing acts, the respondent interfered with, restrained,' and 'coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act On or about June 3, 1942, the respondent filed an answer admitting certain allegations of the complaint, denying that it had engaged in unfair labor prac- tices, and alleging that-the 31 discharged persons had'been discharged "for good and sufficient causes" On or about June 11, the Mutual filed an answer deny- ing the material allegations of the complaint concerning it. Pursuant to notice,' a hearing was held from July 9 through August 11, 1942, at St. Louis, Missouri, before Samuel H Jaffee, the undersigned Trial Exam- iner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Mutual4 were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing, counsel for the Board, pursuant to a motion previously filed by him, moved that the respondent make its answer more definite and certain by specifying the "good and sufficient causes" for which it alleged therein that it had discharged the 31 persons referred to above. Counsel for the respondent objected to this motion, and in turn moved to amend his answer by striking the paragraph thereof containing the allegation in question. The 2 Matter of Carter Carburetor Corporation and United Automobile Workers of America, Local 819, etc, 39 N L. R B. 1269, amended 40 N L 'R B 631. S The hearing was twice postponed by the Regional Director at the request of counsel for the respondent. 4At the beginning of the hearing,.the Mutual was permitted 'to intervene to the extent of its interests. CARTER 'CARBURETOR CORPORATION'' ' 363 undersigned denied,the motion to etrike and granted the motion to make more , definite and certain.` On'July 10, the second day of the hearing,, counsel for the respondent moved that the Board furnish a bill of particulars giving the names of the respondent's "officers and agents" referred to in the complaint as having discharged the 31 persons. Over the objection of counsel for the Board, the undersigned granted this motion' During and at the end' of the hearing, counsel for the respondent moved to dismiss the complaint. The motion was denied during the hearing, and ruling reserved at the close thereof. It is nQw denied. At the end of the hearing counsel for the Board moved to conform the complaint to the proof. There was no objection and the motion was allowed. Opportunity was afforded all parties at the conclusion of the hearing to argue orally before, and to file briefs with the undersigned. No arguments were made. Counsel for the Board and for the respondent have filed briefs Upon the entire record in the case 7 and from his observation of the witnesses, the undersigned makes the following : FINDINGS' OF FACT I. THE BUSINESS OF THE RESPONDENT 8 Carter Carburetor Corporation is a Delaware Corporation having its principal office and plant at St. Louis, Missouri, where it is engaged in the manufacture, sale, and distribution of automobile carburetors, fuel filters, and bomb and shell fuses a During the year 1941, the respondent purchased and caused to be trans- ported large quantities of raw and semi-finished materials consisting of cast iron, steel, brass and zinc base die metal valued in excess of $500,000, of which ap- proximately 67 percent was shipped from points outside the State of Missouri to the respondent's plant. During the same period, the respondent sold and caused to be transported finished products valued in excess of $1,000000, of which ap- proximately 90 percent was shipped from its plant to points outside the State of Missouri. As of, February 1942, the respondent employed 'about 2,700 persons. Since December 1941, the larger share of the respondent's-business has been in bomb and shell fuses for war use. II THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 819, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership-employees of the respond- ent. Carter Carburetor Company Employees' Association and Carburetor- Work- ers' Guild were unaffiliated labor organizations, admitting to membership employ- 5 On July 13, the respondent filed a document specifying the "good and sufficient causes " Board counsel then asserted that the information so furnished was inadequate, and moved that certain portions of the answer be stricken or that the respondent furnish further particulars. This motion was denied. 6 On July 14, Board counsel filed a document specifying, the "officers and agents referred to. 7 On October 19, 1942, the undersigned issued an Order Correcting Errata in Transcript of Testimony. 8 The findings in this section are based upon stipulations of counsel and the testimony of Hugh H. C. Weed, the respondent's vice president and general manager. It is a subsidiary of American Car & Foundry Co., the president, secretary, and treas- urer of which hold the same positions with the respondent. 364 DECISIONS' OF` NATIONALLABOR-RELATIONS BOARD, ees of 'the respondent. Mutual Workers' Union is an unaffiliated labor - organiza,- tion, admitting to membership employees of 'the respondent. ' III. THE UNFAIR LABOR PRACTICES A. Domination of, n'terterence with, and support to the Association , the Guild and the Mutual. In effect the complaint alleges that the respondent violated Section 8 (2) of the Act-as to three successive labor organizations, the Association, the Guild, and the Mutual. • The Mutual is alleged to be the alter ego of the Guild In addition, the respondent is alleged in substance to have dominated and interfered with the Mutual, and contributed support Wit, independently of the Mutual's predecessors. 1 The Association and the Guild 10 The Association was created in July 19313 as the result of a meeting of the em- ployees called and addressed by William lI Ewart, plant manager , who said he preferred that they form an "inside" union. The next day the respondent super- vised an election in the plant of departmental representatives for such "inside" organization . In August 1935, an employee who protested that the Association was a "company union" was accused by William Slinginan , chief inspector, of "trying to organize an outside ,union here" ; he was discharged On May 3, 1937, the respondent and the Association made a contract wherein the respondent rec- ognized the Association as the exclusive representative of,all its employees for collectively bargaining. • ' The Association , said the Board in its earlier decision ,'1 "was throughout its existence . . . the creature of the respondent . . . set up" to keep "other labor organizations out of the plant." It "provided the Association with every facility which might make the organization dependent upon the respondent . . . The formation of the Guild to "strengthen" the Association was under consider- ation even before thq contract of May S, 1937. Without consulting the member- ship at large, the Association representatives decided to incorporate the Associa- tion as the Guild. On May 28, they wrote to the respondent that they had decided so to incorporate , the Guild "to include, take over, and assume the entire mem- bership and all physical effects , functions, rights , and obligations " of the Associa- tion including the contract. The same day the respondent accepted the transfer of the contract, effective upon incorporation . The Guild was incorporated June 2, 1937. Association funds were used for Guild formation expenses . Applications for Guild membership were distributed on the job , the respondent, at the same time, requiring each employee to sign cards designating his bargaining repre- sentative, the respondent thus securing information as to their attitude toward the Guild . Guild business was done in the plant with company facilities , except that meetings were held outside. The Association contract continued in effect to 10 The findings in this, subsection are based upon the Board's decision in the earlier pro- ceeding. See footnote 2 supra. It is to be noted that the respondent's Petition for Re'iew filed in the C C A. (8 ) on April 27 , 1942 , asks only for review of that portion of the Board' s Decision and Order which has to do with the discharge ,of an employee named Reed , no review being sought of the remainder. The Board subsequently filed a petition to enforce the entire Decision and Order. Both petitions are pending as of the date of this Report. Moreover, near the end of the instant hearing, counsel for the Mutual , who was counsel for the Guild in the earlier hearing ( the Guild had not asked for review ), stated that he did' not dispute the facts found in the earlier case , and did not desue to offer or elicit any further evidence in connection with the matters there decided. 31 See footnote 2 supra. CARTER CA.RBUREiTOR CORPORATION 365 `September 30, 1938; when a contract with the Guild was made, the Guild contract dieing renewed in 1939 and 1940, and revised on March 28 and May 3, 1941. 'The 1940 contract required ' the Guild to have a committee of representatives and hire an attorney , and not to permit the membership of employees having the right to hire or fire. The respondent granted the Guild a soft -drink concession in the plant under which soft drinks which had previously been furnished by another -company, the profit of which went to the respondent , should thereafter be furn- ished at a lower cost by a company in which Vice-president and General Manager Need had- a controlling interest . The profits therefrom , and from milk and candy concessions also granted , went to the Guild. The Guild differed from the Association, said the Board, only in' that "Guild meetings were held outside the plant, the members of its executive committee were_ not paid by the respondent for time spent at committee meetings," and Guild members "paid dues of 25 cents a month " The Guild merely took over the Asso- .ciation The respondent furnished the financial support recited "The respond- ent; under the Guild , continued to deal with the same officials with whom it had been accustomed to deal under the Association . By transferring its contract . . . the respondent thereby put its stamp of approval oil the Guild even prior to its formation " The employees , members of the Association , "an organization obvi- ously formed and dominated by the respondent , could not have seen in the Guild anything more than a successor to the Association, and its continuance in another form .. " In its decision , as amended , in the earlier case, the Board also found that: On August 8, 1941, the Guild's attorney advised its Executive Committee that in his opinion the Guild should be disbanded as a labor organization. On August 12, 1941, the "respondent posted on its bulletin board a notice to its employees stating that it had been "informally advised" by the Board's Regional Director that the Guild, in her opinion , (lid not "meet the require-, ments" of the Act as a collective bargaining agency, and that although the respondent did not agree with that conclusion , it would nevertheless "be unable to permit the free use by the Guild of the space occupied by the Canteen [the room in the plant where the soft drinks were dispensed] and to bargain collectively with the Guild ." The notice went on to state that in accordance with the provisions of the Act [ Sections 7 and 8 of which were set out], the employees would be free from any interference or discrimination by the respondent [and were "free to join or refrain from joining any union, whether affiliated with or independent of a National union .:."]. On August 16, 1941, at a general meeting, the membership of the Guild unanimously decided to disband the Guild as a labor organization . The Guild continued. however , to exist in its corporate form.'a [Bracketed material added.] It was contended' by both the respondent and the Guild that the notice of August 12 , followed by the disbanding of the Guild as a labor organization on August 16, made the issue concerning the Guild moot. The Board nevertheless ordered the respondent , Inter aka, to cease and desist from d'o'minating or inter- 12 James Titus , president of the Guild , testified that it thereafter existed as a social land sickness benefit group. It was not until March 6, 1942 , however, that the Guild's corporate charter which permitted it to act as a labor organization, was amended to eliminate such power While Titus continued to act as president , no executive committee or general meet- ings were held from August to February 1942. During this period no social functions were held, and no dues collected. It was not until November 1941, that dues paid in advance bY members, ( Guild dues nnere_25 cents a, month ) were refunded . Latei events conceining ilie Guild are referied to hereinafter. ' 366 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD fering with the Association or with the successor Guild, "or with the formation or administration of any other -labor -organizatioof its employees," from cons tributing support to then, and to refrain from recognizing the Association or the successor Guild if they should return to active existence as representatives of the employees for collective bargaining. As to the Guild contract, the Board stated that since the Guild was no longer a labor organization the contract was no,longer in effect." 2. The Mutual The disbanding of the Guild as a labor organization, and the beginning of the Mutual, was ,planned a few days prior to the filing, on August 12, 1941, of the fifth amended charge in the earlier proceeding. When the hearing was held September 4-10, the, Mutual, as appears hereinafter, was already in 'existence. In July, Fred J. Hoffmeister, counsel for the Guild (later also for the Mutual) told Guild officials that Board action with reference to the Guild was impending, and that one of the charges was that it had conducted some of its activities in the'plant. The Guild accordingly rented an office in the Grand-St. Louis Building, across the street from the plant, hired a full-time clerk,' and began occupancy on August 1.1' Plans to start the Mutual were made and, as will be seen, largely carried out even before the Guild was disbanded as a labor organization. Hoffineister, who, had held conferences with representatives of the Board's Regional Office and . with' the respondent, informed Guild officials early in August that the Board' would file a complaint, against the company in connection with the Guild, and that the Guild, in his opinion, was illegal. He recommended that the Guild be disbanded, and suggested the holding of a special meeting of Guild officials to. discuss it. Before this meeting was held, some talk went about the plant that the Guild was about to disband as a labor organization, that it would continue only as a social organization, and that a "new union" would be started Harry Thompson, vice president of the Guild and member of its Executive Committee" and who concededly took the most active part in starting this "new union," was mainly responsible for this talk." Early in August, before the 8th, he presided' at a meeting held in the Guild office in the Grand-St Louis Building, attended by seven or eight employees. Plans for the formation of the proposed organiza- tion were discussed. It was decided that handbills, membership application cards, and other literature would be printed and distributed. On August 8, pursuant to Hoffmeister's suggestion; a special meeting of officials of the Guild, consisting of 15 of the 20 officers and members of the executive and labor committees, met with Hoffmeister at the Fairgrounds Hotel, located "The fifth amended charge in the earlier case had been filed, August 12, 1941. The, complaint issued thereon was dated August 13. The hearing was held September 4-10. The Trial Examiner's Intermediate Report was dated October 9 As stated hereinabove, the Board's Decision and Order was rendered March 31, 1942, amended April 17, 1942. See footnote 10, supra, for the position of the parties thereafter as to the Association and the Guild. - 14 The clerk spent about one-half his time at the plant where he supervised the soft drink, milk, and candy concessions, the Guild shortly'thereafter beginning to pay rent to the respondent for the space occupied thereby. 15 The findings in this paragraph are based upon the testimony of James Titus,' Guild president. 19 Thompson became vice president in the fall' of 1940, and had been a member of the. Executive Committee for 2 or 3 years. 17 This finding is based largely on the testimony'of Board witness Daniel R. Powers, and Mutual witnesses Essiemae Hellwege, Odus Newman, and William E. McCracken. CARTER':CARBURETOR CORPORATION 367 near the plant. One of those present was Thompson. No others, apparently, had been at the meeting at the Guild office held 2 or 3 days before. At the August 8 meeting, Hoffmeister repeated the information and advice he had previously given, and added that it would be necessary for the company to post notices to the employees advising them of the action taken. After some discussion, those present voted "that the recommendation of this com' mittee be that the Guild shall be discontinued as a labor organization and that, counsel be authorized to enter into a stipulation with the Labor Board, the company, and any other necessary parties to that effect." " It was agreed that this vote should be kept secret until after the company had posted a notice in connection with the Guild.10 Thompson, meanwhile, proceeded with the plans to form the new organiza- tion. Between the time of the meeting in the Guild office and the night of August 10 he told several employees that he intended to form a new union," and on August 9 he handed to Titus his resignation as vice president of the Guild. The night of August 10 he went to the Hill Printing Company, which had done printing for the Guild, and ordered the printing of handbills announcing a meeting to be held the night of August 16 at the Fairgrounds Hotel. No copy of this handbill is in evidence, but Thompson testified that the handbills contained "news to the effect that we were going to organize a new union.", He did "not believe" they were signed ' by anyone, "could not say", whether there was any indication upon them as to who had gotten theirs out, but did ,,not believe there was"' He had no copy, he said While he testified that the name of the Mutual was not given on the handbills, the weight of the evidence is to the contrary.21 The morning of August 11, Thompson telephoned to Hoffmeister. "I think at that time I told hum," testified Thompson, that "I was helping to organize a new union in the shop, and that we would like to have him help us . . ." He told the attorney that lie had ordered handbills printed advertising a meeting for August 16, and asked him whether he would draft forms of membership application and membership cards. Hoffmeister said he would do so. Accord- ing to Thompson, he did not explain to Hoffmeister who "we" and "us" were. Hoffmeister told Thompson that those who had been active in the Guild could not be active in the formation of the Mutual, that he did not think it would be "advisable to have members of the other board put on the board of the new organization." The printing and delivery of the handbills and the, cards was made in part of the 11th, and the remainder on the 12th.22 Thompson had told Hill that he wanted the cards "in a hurry" because "they" wanted "to get going." On August 11, Thompson and six or seven others who were actively interested in the formation of the Mutual, met in the Guild office in the Grand-St. Louis 11 Quoted from the minutes of the meeting . [ Italics added I "This finding is based upon the undisputed testimony of Titus and Thompson 20 Thompson, who was an unwilling Board witness, and for the most part an evasive one, testified that three persons, none of whom he said he as able to name, called at his home on Sunday afternoon , August 10 , and asked him to take the lead in forming a new union. As already found, he had already taken the lead. 21 The name appeared on application and membership cards printed in part on August 11, and since the handbills were printed on the 11th and 12th, it is clear, especially in view of the events which took place at the August 16 meeting, later described, that the name of the Mutual appeased in these handbills 22 Since 4000 of each of the caids were printed , it is a fair inference , considering the number of employees at the plant, that about this number of handbills was also printed It is significant that in all respects other than the names of the organizations , the cards used by both the Guild and the Mutual were identical. 368, DECISIONS OF _NATIONAL•_LABOR, RELATIONS BOARD Building and planned to distribute this literature beginning the following, morning before working hours. Accordingly, on August 12, ^ beginning shortly after 6 a. in., they distributed handbills and applications at the plant gates,to the employees as they came to work. Later on the morning of the 12th, the' respondent posted on its bulletin boards the notice concerning the Guild, hereinabove referred ton The same day Vice-president and General Manager Weed sent to all the foremen and other supervisory employees a memorandum, together with a copy of the posted notice, stating that "In line therewith the Management hereby instructs its, foremen and other supervisory employees to avoid any expression of favoritism 'toward any labor organization and to remain neutral on all questions pertaining to labor organizations." • The distribution of the Mutual literature, meanwhile, did not cease with the commencement of work that day. Begun at the gates before work commenced, it continued inside the plant during working hours, and was resumed at noon and after working hours at the plant gates as the employees left. For the next several days the Guild office was used as the headquarters for this campaign. The evidence, uncontradicted in large part, is clear and the undersigned finds that on August 12 such solicitation in the plant took place at least in the assembly department, the jet department, the parts and service department, the shipping and receiving department, and the locker rooms. Much of this solicitation, both inside, and outside the plant, was accompanied .by statements of the solicitors that the Guild was being disbanded or had been disbanded; that the Mutual was being formed to keep out the C. I 0, that the Mutual was taking over (or was just a continuation of) the Guild, and that the Mutual was the same as the Guild except in name. Thus, Odus Newman, an employee of the carburetor assembly department, who was a former Guild representative, was active in the Guild, and who had attended a meeting of its executive and labor committees early in August, went through the assembly department carrying Mutual application cards on the afternoon of August 12, handed many of them out to the employees, and made the statements indicated. He asked the employees to sign tile applications and hand them to him at the gate as they left work' At about 3 p. in., Harry Thompson, who was employed as a set-up or lead man in the shell fuse depart- ment, went to Essieinae Hellwege, an employee of the jet department, handed her eight or ten Mutual application cards and, according to Hellwege's testi- mony, told her to get them signed up but not on company time. Accordingly, Hellwege procured six or eight signatures in the women's dressing room im- mediately after working hours. However, she also solicited employee Fowler during working hours. Bernice Martin, an employee of the parts and service department, solicited 10 to 12 employees in that department 2l Paul Bryant, an employee of the shipping and receiving department, was given many Mutual applications by Harry Thompson that morning at•the plant gates and told by Thompson to give them to the employees in Bryant's department. Bryant accordingly passed out approximately 30 cards in the plant during working, 23 See page 5, supra, quotation from Board decision in earlier case. 24 These findings are based upon the testimony of employees Flowers, Weaver, Mullins, Price, and Stocko Newman did not specifically deny any of this testimony , saying only that he never discussed or mentioned the Mutual on the job , that the word "Mutual" never passed his lips while he was in the plant 25 This finding is based on the undenied testimony of employee Charles Mitchell . Bernice Martin did not testify. . CARTER-CARBURETOR.- -CORPORATION 369 hours. Gus Capra,' a repairman in the assembly department,26 solicited- many employees in the assembly department during working hours, going down the assembly line with another employee handing, out Mutual applications. Capra was particularly active as well in soliciting at the plant gates. Some of the employees went to the Guild office during the noon hour on August 12 and either signed application cards there, or paid 25 cents or 50, cents representing dues for 1 or 2 months respectively. This money was paid to Harry Thompson.27 The circulation of this literature in the plant on August 12 and for several days thereafter, was so extensive that some of the respondent's foremen or other supervisory employees were clearly aware of much of what was going on. They _did nothing to prevent or otherwise to discourage it. The solicitation in the carburetor assembly department was particularly intensive, Odus Newman and Gus Capra spending substantial periods of working time distributing the Mutual applications and talking to the employees about the Guild and the Mutual. The solicitation on behalf of the Mutual continued during the period from August 12,to the night of August 16 when the scheduled meeting was held Of the 1688 Mutual applications which were signed prior to the execution of the contract between the Mutual and the respondent on October 20, 1941, referred to hereinafter, approximately 1300 were signed in the 4 days from August 12 through August 15. On the night of August 16th, 144 employees met at the Fairgrounds Hotel pursuant to the handbills which had been distributed. Thompson had engaged the meeting place in the name of the Mutual 2$ Thompson presided. Present on the platform with him were Attorney Hoffineister and employee Melvin Newman who acted as temporary secretary. According to the minutes of the meeting kept by Newman, Hoffmeister said that the Guild had been charged with being company dominated, but that it need not liquidate entirely, that it could continue as a sickness and disability benefit and social organization; it could no longer, however, act as a collective bargaining agency Hoffmeister then suggested that the Mutual be "strictly a labor organization " 29 Following Hoffineister's remarks, it was voted that "the Guild cease to function as it labor organization only." Thompson, and Newman were then elected temporary chairman and temporary secretary respectively 30 At Thompson's request many persons who had signed applications just before the ineeiig began and during the meeting, turned, them in. It was voted that after September 13. there would be an initiation fee of $1, and that dues would remain at 25 cents per month a Many, persons paid dues at this meeting Later the same night a meeting of,employees of the second shift was held, 81 attending Thompson again presided, and Newman acted as secretary., Thompson' repeated the substance of what Hol'fineister had said" at the earlier meeting- The election of Thompson and Newman as temporary chairman and' Capra was a member of the Guild Executive Committee and had attended the August S meeting 27 While it was denied at the hearing that the Guild office was so used, the evidence of several Mutual witnesses is conclusive to the contrary 28 The same place had been used by the Guild ,for its meetings 29 Note the absence of any vote to form another labor organization and the assumption that the Mutual already existed. ^ Lou Hellmann , who was active in the Mutual testified that he objected to Thompson's election; saying that tlieie should be "new blood' all the way through fioan the beginning, and that since Thompson was formerly connected with the Guild he had "no business" in there Thompson was nevertheless elected 31 Guild dues had also been 25 cents a month. 370 DECISION'S=OF' NATIONAL`.LABOJW'REIATIONS BOARD temporary secretary was approved. It was voted that the Mutual rent an officd for the conduct of its business. Solicitation on behalf of the Mutual decreased somewhat after August 16, but remained substantial in extent ' Thompson, for example, distributed appli- cations outside his own department and secured signatures to them inside the plant, and Titus, Guild president, passed them out on a driveway adjacent to the plant building but on company property Throughout this entire period until about October 9; or at least well into September, the various solicitors generally turned their cards in to Thompson together with such dues collection as they had made' On August 19, Thompson rented Room 214 in the Grand-St. Louis Building on behalf of the Mutual, and from the dues collected paid the first month's rent beginning with August 22 on which date the Mutual first occupied that par- ticular room Up to that date, however, as has been seen, Thompson and others active in organizing the Mutual had used Room 212 as campaign headquarters. Room 212 was the office of the Guild. It was immediately adjacent to Room 214, with a connecting door between. In the meantime Thompson had, about August 20, appointed 10 employees as temporary shop stewards of the Mutual. None had been Guild officials At the same time he issued a handbill announcing their appointment, the renting of the Mutual office, that dues would be there payable, and that a further meeting would be held September 11 at the Fairgrounds Hotel where dues would be collected, bylaws ready for discussion, and permanent shop stewards elected The announced meeting of September 11 -was duly held. Several hundred employees attended- Many copies of bylaws drafted principally by Thompson were distributed. Thompson presided He and Melvin Newman, temporary secretary, were on the platform Permanent shop stewards were nominated and elected. Thompson read the bylaws, at least in part, and there was con- siderable discussion about his draft, many of those present disagreeing with Thompson about some of the provisions. Several persons objected that Thomp- son had taken it upon himself to appoint temporary stewards, draft bylaws, etc. without consulting the members as a whole. This resulted in considerable con- fusion at the meeting, with the result that it was finally voted that all business transacted during the meeting be stricken 96 L 32 Frank Close , an employee of the maintenance department and a Mutual steward, testi- fied that there were "plenty " of Mutual application cards "all over the plant ," and that they were "laying all over the floor " of his department and "on the floor" of the locker room 13 Much of this .testimony was undenied by Thompson . Titus did not refer to it in his own testimony 31 The handbills also stated that the Mutual was in no way affiliated with the Guild. This, Thompson testified , was inserted because various employees had asked that their Guild dues , paid in advance, be transferred to the Mutual. These requests were refused. This testimony is credited. 33 The findings as to the occurrences at this meeting are based for the most part upon the minutes taken by Melvin Newman as later supplemented by Kay Butler , later elected secre- tary of the &Iutual . So far as the bylaws were concerned , it was not until December 7, many weeks alter the Mutual had secured a contract , as appears hereinafter , that a con- stitution and bylaws were adopted Thompson's draft of the bylaws, he testified , were mod- elled after the bylaws of the Guild and of A . F of L and C. I. 0 unions . A comparison of his draft with that of the Guild constitution , however , shows that the latter was the real model , many of its provisions , indeed, having been copied verbatim. And the Mutual consti- tution and bylaws finally adopted retain important parts,of Thompson 's (and the Guild's) provisions Thus, provisions that stewards must be 21 years of age and have been continu- ously employed by the company for at least one year are found in substance in the old Association ; t the Guild, the Thompson draft, and the final Mutual constitution and bylaws. s I CARTER CARBURETOR CORPORATION, 371 A few days after the September 11 meeting, four employees who had been active in the Mutual but who had objected to Thompson's assumption of au- thority, went to Attorney Hoffineister and protested to him about Thompson. "We convinced Hoffmeister," testified Kay Butler, one of the group and later secretary of the Mutual, "that Thompson was not doing such a good job. It was arranged that Hoffineister should see Thompson and talk to him. These four and Hoffmeister then agreed that four permanent officers should be elected, after which it would be decided how many representatives (stewards) of the Mutual there would be from each department in the plant. Hoffmeister accord- ingly issued in the name of the Mutual a notice of election of permanent officers, nominations to close on September 27,'elections to be held October 1 to October 4. The notice stated that anyone who had been an officer or representative of the Guild was not eligible to hold office in the Mutual. Following the meeting of the group in Holfineister's office, Hoffmeister told Thompson of the visit and arranged a conference to be held September 20 at the Mutual office. This conference was duly held. Hoffmeister, Thompson and eight or ten employees were present, some of these employees constituting the group which was actively opposed to Thompson. Most of them had also been active in soliciting for the Mutual. As testified to by Kay Butler, the group told Thompson that they disliked his organizing, methods and ,asked that they be permitted to handle the election of officers and stewards. Thompson agreed, and this group accordingly took over the organizing from that point 36 The nomination and election of permanent officers was duly held pursuant to the notice issued by Hoffmeister. John Spielman was elected president ; George Kapps, vice-president ; Kay Butler, secretary ; and Al Ebeling, treasurer. On September 27, before the election, Hoffmeister had written to the company that the Mutual represented a majority of the employees, and he asked that the company recognize the Mutual as exclusive bargaining agent for the employees. On the morning of September 30 Weed by telephone (confirmed by letter later the same day) replied that the company first required evidence that the Mutual represented a majority. The signed Mutual application cards were the same afternoon delivered to the company and checked against the company's payrolls. Of the approximately 2500 employees, about 250 were considered as not eligible for membership in the Mutual; 37 of the remainder, 1635 had signed the cards. While the evidence on the point is far from clear, it seems that on October 1 Weed or some other company official informed Hoffmeister of the result of the check, and that Hoffmeister was told, or at least assumed as the result of the check, that the company had granted the requested recognition. Counsel for the com- pany a day or two later informed the company that it would be advisable to verify the signatures on the cards (this had not been done on September 30), and, as a result, a further and more elaborate check was made which was completed 2 or 3 days later, which differed from the results of the first check only slightly. On October 7, accordingly, Weed wrote to Hoffmeister stating that the company had agreed to accept the Mutual as exclusive bargaining agent for the employees ' se Thompson continued , however, to solicit for the Mutual , and he acted as temporary president until the installation of permanent officers on October 9. - 97 The respondent took it upon itself, so far as the check was concerned , to determine who was not eligible. This circumstance plays no part, however, in the ultimate conclusions hereinafter reached sl The first evidence in the record , from Weed and other respondent witnesses, concerned only the second check , and no reference was then made to any other. -On the basis of such evidence, it appeared clear that iecognition'had been accorded before the check was made Several days later `weed and the other witnesses took the stand and testified that they had been in error in their previous testimony on the point, and testimony from them and other 521247-43-vol. 48-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 4, in the meantime, the Mutual issued a handbill listing the officers who had been elected in the election ,just concluded , stating that the company had agreed to accept the Mutual as exclusive bargaining agent, and announcing that the election of shop stewards would take place on October 7 to 9, and that on October 9 the officers would be installed at a meeting at the Fairgrounds Hotel. The election of shop stewards was duly held. On the night of October 9th, 87 members of the Mutual attended the installation of officers. Harry Thompson installed them, after which Spielman , the duly elected president , presided . A list of the newly-elected stewards was read. Hoff- meister, who was present, said that bargaining negotiations with the company would begin shortly. These negotiations took place on October 15 and 16, lasting several hours each day. The officers, the stewards , and Hoffmeister, attended on behalf of the Mutual. An agreement was reached , it was approved at a meeting of the members of the Mutual , and the contract, dated October 20, was duly executed . The con- tract was for 1 year from date , with an automatic renewal clause in absence of notice. The chief concessions granted by the company thereunder were an increase of 5 cents per hour in the minimum hiring -in rate of pay of hourly paid employees, and the granting of 1 week's vacation with pay. A large majority of the hourly paid employees already received more than the new minimum ; and those who were on ' piece work also exceeded it. Under the contract the company agreed to investigate the question of piece rate inequalities . Thereafter, from time to time, the company increased various piece work rates and granted some increases in certain hourly rates, after negotiations with the Mutual stewards in the affected departments Prior to the contract the company had made similar adjustments. None of these later increases were covered in any contract. The company, had the power , if it chose to exercise it (it did not so choose ), to revoke them at will With the completion of its organization , and the effecting of the contract, the Mutual was now solidly entrenched. Beginning in November, 1941 , members of the Union , which had been active for some time more or less intermittently in soliciting members and holding meetings, began to *ear union buttons in the plant This resulted in anti-,Union and pro- Mutual statements by some of the supervisory employees Gahner and Steiri- ineyer, supervisors in the assembly department , made derogatory statements about the C. I. 0 in the presence of other employees . Russell Young, supervisor in the jet department , told Belvia Fowler, an employee of that department , that he had heard something "bad" about her which had surprised him, that he thought she was "against" the C. I 0 Fowler, who was then wearing a Union button, replied, that she had been , but that it "bona fide" union was needed at the plant and the Mutual was just a "company union." Young replied, according to Fowler's undenied testimony, "I know but they are trying," and added that be did not care which union got in , that "we don't want any trouble " Shortly after December 8, Ralph Daggett , assistant foreman in the machine shop, told Elbert Brandon, employed in that department, that lie wished some of the union men (meaning members of the complaining union ) would take their buttons off, in which event the "rest of them" would do so, that it would be more patriotic. Brandon was then wearing a Union button About tile - same time, Walter Johnson, foreman of the carburetor assembly department , told a group of six or eight female employees of his department , one noon, in response to a question witnesses, and further documentary evidence, was received as to the first check The under- signed is'convinced that Weed and the other respondent witnesses were honestly in error in their earlier testimony on the point, and that their later testimony as to the first check is true. CARTER CARBURETOR CORPORATION 373' of what he thought about the two competing organizations, that the Mutual was a better union to join than the C. I. 0., and that if the Mutual had not secured a contract the C. I. 0 would have had a chance to "come in." 38 In January, 1942, Art Roy, a line foreman or supervisor under Johnson, asked Velma Mullins, who was employed in the same department, if she were going to a certain Mutual meeting Mullins replied that she was not. Roy then said that if Mullins wanted to join the Mutual she should talk to Lou Hellmann,40 a Mutual steward On the night of November 29, 1941, the Mutual conducted a dance in an outside hall, tickets for which had been widely sold and distributed inside the plant dur- ing working hours. A poster announcing the dance was placed on the company bulletin board near the time clock. While Plant Manager Ewart testified that he never saw the poster, was never told about it, and had not given permission to put it up, it had remained on the board for at least 2 days and was undoubtedly seen by foremen and other supervisors who must, in addition, have known of the selling of tickets for the dance inside the plant.41 3. Concluding findings ' From July 1933 to June 1937 the respondent dominated the Association. Begin- ning with July 5, 1935, the effective date of the Act, the respondent violated the law in doing so. It continued this violation with the Guild which was.but the Association by another name. It was not until Board action was impending that there was any thought of disbanding the Guild as a labor, organization. It was not until after the complaint had issued that it was actually so disbanded.' By that time the Mutual was already in existence. There had been, at tins point, eight years of uninterrupted company domina- tion of two successor generations of labor organizations, the Association and the Guild. "As the courts have often held, experience teaches that such a lung continued influence does not suddenly evaporate. There is, therefore, a consid- erable likelihood that the old domination continued, in the absence of proof- of powerful counter-forces " 92 While the burden of proof to begin with is on the Board, evidence of such facts create an "amply justifiable inference" that, the long-continued domination has not evaporated overnight, and the respondent then has the burden of going forward with the evidence to overcome the infer- ence.43 The facts ir.,ake it abundantly evident that this latter burden has not been sustained , and that there is ample proof of the converse The Mutual, the third generation of company-dominated unions, suffers from the infirmities. of its predecessors. The "crucial fact, so the Supreme'Court has stated, is not the company's actual purpose or intent but . . . what the employees might heasonably believe was the employer's attitude." 44 Putting aside, for the moment, the effect of the 19 This finding is based on the testimony of Ethel Flowers, a Union member, who said she heard the conversation Johnson in his testimony denied discussing unions with any- one, saying that while "they might ask me . . . I would never answer them." Flowers' testimony is credited Johnson had also denied, contrary to the facts, that he was aware of the solicitation for the Mutual in his department. . 40 This finding is based on Mullins' undenied testimony 41 Essiemae Hellwege , one of those most active in the Mutual and a Mutual steward, testified that she sold about 25 tickets in the plant "to anybody that wanted them," adding that, "everybody sells tickets ' for everything in there." 42 Frank J, in Sperry Gyroscope Co, Inc. v. N.. L. R B., 10 L: R. R. 689, C. C. A. (2) enf'g 36 N L R B 649 ; see also Westinghouse Electric & Mfg. Co. v. N. L R.' B., 112 F (2d) 657 (C C A. 2), aff'd per curiam in 812 U. S. 660. 13.Ibid. i - ' 44 Ibid, referring to,I.,A. M. v N L.-R. •B. 311U S 372, 380.. . ' , , 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posting by the company of the notice of August 12, 1941, there can be little doubt that the Mutual seemed to the employees at large to have.evolved out of the Guild. And at no place in the notice, and at no time thereafter, did the company advise the employees of the separation between the Guild and the Mutual and that it was indifferent whether or not they joined the latter.45 From what the company failed to do, and by what was done-and permitted, it would be highly unrealistic to conclude that the employees could have thought anything but that the Mutual did so evolve.40. Among the affirmative factors supporting this assertion may be listed the following: - (1) The significance of the "timing." Those who started the Mutual were on with the "new" even before they were off with the "old." 47 (2) The,agreement at the August 8th meeting of Guild officials to keep secret from the employees at large, for a few days, the fact that the officials had voted to recommend the discontinuance of the Guild as a labor organization. The undersigned can infer only that these officials were, at least desirous that the Mutual come into being before the recommendation was made generally known. Of the 15 persons who attended this meeting, about half of them, so far as the record discloses, took an active part in the formation of the Mutual, one of them, Harry Thompson being the leader. (3) The meeting of August 16 was clearly a joint Guild-Mutual meeting where the employees at one and the same time approved the recommendation to dis- band the former as a labor organization and rubber-stamped the existence of the latter.f8 (4) Many of the leaders in the Guild--were the leaders in the formation 'of its successor. Hoffmeister was attorney for both. Thompson was the vice-presi- dent of one, and the principal leader in the formation of the other. Titus, the Guild president, solicited memberships for the Mutual. Hellwege, a Guild repre- sentative (steward) from the jet department, and on its Executive Committee, was elected to the same positions in the Mutual. Kapp, also a Guild official, was elected vice-president of the Mutual. Lou Hellman, a member of the Guild's entertainment committee, was an active Mutual solicitor and became a steward. Capra was a Guild steward in the carburetor assembly department ; he was also particularly active in soliciting Mutual memberships, especially in his department, and in other ways. Odus Newman, also a Guild steward, was similarly active in the Mutual. Beaver, a Guild steward, was a candidate for 45 See the Westinghouse case, cited in footnote 42, supra. As to the language of the notice, it may be noted: (1) that after 8 years of effective domination of labor organiza- tions, there is no indication therein of any real change in the respondent's attitude; it says it will alter certain practices as to the Guild, but assures the employees that it still feels the Guild exists legally ; (2) that "requirements" the Guild failed to meet appear to be only the fact that it did not pay for the space "occupied by the canteen"; (3) what "requirements" the company failed to meet there is no mention of ; (4) there is no mention of the Guild contract which, by_its terms, would not expire at least until October 13, 1941 ; the statement in the notice that "the management will, after this date, be unable to bargain collectively with the Guild" does not purport to nullify the contract, and is quite consistent with the inference that there will be no additional bargaining with it. 48 Even if some of them might have reached such an unrealistic conclusion it would not avail the respondent . There is no requirement , and should not be, of proof that the long- continued illegal conduct affected all the employees. 47 See N. L. R. B. v. Thompson Products, Inc., 11 L. R. R. 54, (C. C. A. 6), enf'g as mod. 33 N. L. 'R B. 1033 ; N. L. if. B. v. Colorado Fuel and Iron Corporation, 10 L. R. It. 553, 556, (C. C. A. 10, on contempt) ; Sperry Gyroscope Co. Inc. v. N. L. if. B., cited in footnote 42, supra. 48 See Matter of Stehli & Co. etc., 35 N. L. It. B. 44, enf'd, per curiam, 125 F. (2d) 705 (C. C. A. 3 ) ; Matter of if. G. LeTourneau, Inc. etc., 36 N. L. R. B. 774. CARTER CARBURETOR CORPORATION 375 office in the Mutual and an active solicitor for it. And there are other such instances not here mentioned 4D ° (5) The similarity did not stop with the leadership. Among other things, the leaders of the Mutual used the Guild office as their campaign headquarters, and thereafter used the Fairgrounds Hotel, the same meeting place.' They secured signatures to exactly the same form of application cards, collected the same dues,50 and operated under a constitution in important respects like the Guild's. , The respondent violated the Act as to the Mutual, moreover, quite aside from the Mutual's connection with its predecessors. It permitted extensive solicita- tion for the Mutual in the plant on the job, an activity which was at its peak during the Mutual's formative period. Thereafter the Mutual secured its con- tract ; certain Mutual business was permitted to be carried on in the plant ; pro- Mutual statements were made to employees by some of the respondent's super- visory personnel ; and other unfair labor practices found hereinafter were com- mitted, all of which constituted unlawful support to an organization in the for- mation and administration of which the respondent dominated and interfered. All this, it may be noted, was in sharp contrast to the respondent's treatment of the Union detailed hereinafter.61 Certain specific defenses relied on at the hearing should be touched upon. The first of these has to do with certain testimony why employees joined the Mutual ; the second with testimony involved in the fact that certain active proponents of the Mutual were opposed to the manner in which Harry Thompson conducted some of his activities ; and the third with inferences arising from the nature of the contract which the Mutual secured from the respondent. , (1) Much testimony was received on the first of these matters. Some '60 witnesses testified in substance that they understood their rights when they joined the Mutual ; that no one connected with the company said or did any- thing to influence them, or which influenced them to join ; that they joined of their own free will ; that their previous membership in the Guild had nothing to do' with their joining the Mutual. This subjective conclusionary testimony was received over the objection of counsel for the Board, although the undersigned at the hearing expressed in some detail his doubt that such testimony was of any substantial value as against the specific objective evidence already received, both documentary and oral, much of which is indicated in the findings hitherto made 62 The undersigned is still of the same opinion.'' In any event, such value 49 The significance of such duplication of personnel coupled with substantial continuity of existence ( in the instant case, as noted , it actually overlapped ), was noted, by the Court in I A M v. N L R B, 110 F. (2d) 29 (App D. C.), aff'd 311 U. S. 372 See also Matter of Standard 021 Company, etc. 43 N L. R. B. 12; and Matter of Julius Kayser & Co., etc, 39 N. L. R B. 825. "The fact that some , of these who had Guild dues paid in advance asked that they be credited with such payment in the Mutual is significant m That this difference in treatment of competing labor organization constitutes assistance to the favored Union in violation of the Act, see the I. A. M. case cited in footnote 44, supra; Matter of Federal Bearings Co etc., 4 N. L. R. B. 467, 481; and Matter of Sussex Dye & Point Works, Jnc. etc., 34 N L. R. B. 625. 52 The undersigned ruled in favor of receiving the testimony largely because of the decision of the 8th C. C. A. in Donnelly Garment Co. v. N. L. R. B., 123 F. (2d) 215. The under- signed's observations of the value of this type of evidence, may be found in the record at pages 2668-90. 51 See ' also N. L. R. B v. Linl-Belt Co , 311 U. S. 584, ' 588 ; System `Federation No. 40 v. Virginian By Co., 84 F. (2d) 641, 644 (C. C. A. 4), aff'd 300 U. S. 515 ; N. L. R. B. v. Automotive Maintenance Machinery Co , 315 U. S. 282, rev'g 116 F. ( 2d) 350 (C. C. A. 7) ; Bethlehem Steel Co. v . N. L. R. B., 120 F. (2d) 641, 653 (App. D. C. ) ; N. L. R. B. v. A. 8 Abell Co., 97 F. (2d) 951, 956 (C. C. A. 4). 0 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as testimony of this nature may be considered to have in favor of the theory of the case of the Mutual and the respondent, was completely dissipated by further testimony from the same persons, most of it elicited in cross-examination. It developed, according to their, testimony, that these persons had also joined the (company-dominated) Guild of their own "free will," and that those who had been members of the (company-dominated) Association had also joined that organization of their own "free will." " The testimony applicable to the Mutual, it turned out, was almost entirely applicable equally to these earlier organiza- tions. Almost all who were asked (20 or so) said they observed or knew of no difference between the Mutual and the Guild beyond the difference in name or knew nothing of the Mutual beyond what was on the application." There was testimony that some of them did not know whether the fact that they had been members of the Guild influenced them to join the Mutual. And there was other .testimony of this general nature not here set out. It has all been considered and weighed in determining the facts." As counsel for the Board state in their brief, "The above evidence, if it worth anything, shows that most of the persons were actuated largely by habit, in joining the Mutual " (2) Some of the active proponents of the Mutual, as has been found, were opposed to the manner in which Thompson conducted some of his activities. It seems to be the theory that some days after the September 11 meeting, the - Mutual, which might have illegally existed before that time, became purified because these objectors "took over." This defense is without merit. The ob- jectors themselves testified that what they had objected to was the manner in which Thompson conducted the campaign, that he took it upon himself to be the leader in what took place. What these people objected to, in other words, was that Thompson acted in most instances without assistance from them. Thompson, moreover, did not "step out" until some time after he had done additional important work for the Mutual ; it does not appear that the employees generally were informed of any change in leadership; and the application cards used to obtain recognition from the respondent, and which were the basis, for the contract negotiations, had been obtained by Thompson and the persons who worked with him before any opposition had arisen to his leadership.67 (3) It is urged in effect that the nature of the contract negotiations, and the contract between the Mutual and the respondent, was such as to repel any " Not all witnesses were asked of these or the later matters referred to ; those who,were, so testified. 5,, But there was nothing on the cards which might help them in this respect, and the cards, as has been found, were precisely like the cards the Guild had used 66 After 62 witnesses had briefly testified on the subject, and while the 63d was on the stand, the undersigned said that some method might be worked out of avoiding the calling of 1,500 witnesses to testify along the same line ; that if counsel felt that the 62 whd had already testified on the subject did not constitute a "fair sample" of the rest, a fair sampling might be secured in the nature of a so-called "Gallup Poll." In this latter con- nection, the Trial Examiner suggested certain factors which might enter into the selection of further witnesses, but specifically said that the suggestions did not constitute a ruling that these must be the factors, and that counsel might suggest their own. Nor was any ruling made as to how many further witnesses so selected would be heard on the subject., Counsel for the Mutual, who had put on all these witnesses, said on the record that "The Trial Examiner's suggestion seems to be a very reasonable one to me " Thereafter, how- ever, he declined to proceed with' it, and offered to prove that some 1,500 additional wit- nesses would testify as had the 62. The undersigned declined the offer\'on the express ground that counsel had declined to proceed with the suggested poll "or some such form of'taking a fair sample " Counsel for the respondent stated that he wanted the record 'to show that he had not declined the undersigned's suggestion, and that he might accept it later 'Ile thereafter offered no evidence on the point. - 6T This defense, moreover, has no application to the respondent's violation of the Act as to the Mutual independent of its connection with its predecessors. CARTER -CARBURETOR CORPORATION 377 inference of domination . But such evidence, though entitled to weight, can hardly outweigh the conclusive violations found in other respects That a contract is favorable to the employees" might lead to an inference that there was no domination in the beginning. But of itself, it can mean little as against domination of the type here found, especially when already established. An undominated union, moreover, might have been able to secure terms still more favorable. And "domination," finally, is but one of the ways in which Section S (2) of the Act may be violated." "We are dealing here not with private rights," said the Supreme Court in the International Assn. of Machinists case,00 but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. In N. L. R. B. v. Link-Belt Company, 311 U. S. 5S4, the Supreme Court said: It would indeed be a rare case where the finders of fact could probe the precise factors of motivation which underlay each employee's choice. Normally, the conclusion that their choice was restrained by the employer's interference must of necessity be based on the existence of conditions or circumstances which the employer created or for which he was fairly re- sponsible and as a result of which it may reasonably be inferred that an employee did not have that complete and unfettered freedom of choice which the Act contemplates. Based upon the applicable principles 81 it is clear that not only has the respondent failed to sustain its burden, pointed out at the beginning of this discussion, but the proof amply supports the converse. The undersigned finds that the respondent has dominated and interfered with the formation and administration of the Mutual and has contributed support' thereto.' B. Interference, restraint, and coercion 1. The no-solicitation notice The complaint alleges that on February 25, 1942, the respondent posted in its plant a rule prohibiting solicitation of membership in any labor organization upon its property or time on pain of dismissal , thereafter, warned its employees that "it had been in the past ' the rule," interpreted the rule to prohibit solicita- tion and even talk of labor organizations in the plant, and confined the rule to See page 13, supra as to the contract. As the Court in the Sperry Gyroscope case ( supra, foonote 42) where the same defense was raised, points out, " . . there may be `domination' within the meaning of the Act, which does not reach the point of abject servility . . Negotiations by a union only partially free of employer influence ale not what the statute contemplates 00 Cited in footnote 44, supra "See also N. L R. B v. Rath Packing Co , 115 F. (2d) 217 (C C. 'A. 8), enf'g 14 N. L R. B. 805, refereed to master in 123 F. ( 2d) 664, adjudged in contempt on 9/11/42, 11 LRR 76 62 No formal finding is made at this point as to the Association and the Guild. That is covered in the earlier proceeding hereinabove referred to at page 4ff. The findings made herein indicate, of course, that the respondent has violated that part of the Board's cease and desist order requiring the respondent to cease and desist from dominating or interfer- ing with the formation or administration ' of any other labor organization of its em- ployees " [ Italics added 1 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I matters pertaining to labor organizations The respondent in its answer ad- mitted these allegations, but denied the further- allegations that the rule was promulgated at a time when the respondent "well knew the [charging] union was engaged in a renewed effort to organize," and that the respondent by the acts set forth interfered with, restrained,' and coerced its employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act In determining the issue thus presented, it is necessary to consider what was posted, how it was interpreted and applied, and why." The notice posted by the respondent the morning of February 25, provided that "The solicitation, oral or written, of membership in any Union, on Company property or time, is prohibited. A violation of this rule will be considered grounds for dismissal." It was signed by Weed As to the interpretation and application of this notice, the evidence shows that: (1) The notice forbade solicitation only concerning unions. Solicitation for other purposes was per- mitted. (2) It was not limited to "solicitation". As the respondent's answer admits, it was interpreted (and applied) by the respondent to prohibit even talk of labor or organizations in the plant. Talk on other subjects, unrelated to the work was permitted. (3) It was in practice not limited to working hours. (4) It was in practice not limited to the places in the plant in,which the company's work and business was performed. Each of these items will now be considered. (1) That solicitation for many purposes has long been and continued to be permitted in the plant is shown most strikingly in the undisputed testimony of Essiemae Hellwege, employee of 8-years' standing, former Guild official, and Mutual steward. After reciting that she had sold tickets in the plant for a Mutual dance held late in November 1941," she testified that " . . everybody sells tickets for everything up there," for "Church benefits and everything," and that this "ticket stuff" had been going on as long as she had been with the company. "It costs you about one dollar a week," she added, "for Church bene- fits and chances [lottery tickets] that come around up there." Hellwege testified that she sold about 25 of the dance tickets in the plant to "anybody that wanted them." All this activity was open. It is clear that the respondent must have had knowledge of what went on in this respect. A further illustration is shown in Guild activities which followed the posting of the notice. About February 27, the Guild posted announcements on the company's bulletin boards inviting all employees to join it on payment of annual dues of $1, in return for which they would be eligible for prescribed sickness benefits. Beginning about March 1, copies of these announcements, together with applications for membership, were distributed by shop clerks (timekeepers) during working hours to all the em- ployees. During the next three months, about 1500 signatures were secured: All this was done not only with the knowledge of, but by agreement with, the respondent."6 (2) The respondent in its answer admits that the notice was interpreted by it to prohibit not only solicitation but even talk of labor organizations in the plant. The evidence shows that this interpretation was put into practice. Thus, on .the afternoon of February 25, Weed told,Everett Clark, president of the Union, "You can talk to anybody so long as you don't talk'about CIO, or don't 63 The discharges, which involve the notice, are considered hereinafter. 64 This is the dance referred to supra, page 13-14. 66 The findings as to these Guild activities are based primarily. upon the testimony of Titus, its president. CARTER CARBURETOR CORPORATION 379 proselyte for CIO, or any other union." `8 And the same day Weed told employee Paul Bryant, "But you understand that it is strictly against the rules to talk about unions or to solicit membership on Company time even if you don't sign them up." 87 Discussion of other subjects unrelated to the work was, however, permitted , including such matters as war, politics , religion, and, sports , some of the foremen participating . Thus, Foreman Edward Gilda, of the machine shop admitted participating in such discussions during working hours, saying that there was no rule against it. As Joseph J Pohle, an employee since October 1938, and a member of the Mutual, expressed it in his testimony, "Everybody talked a little bit about everything." Prior to February 25, one of the subjects most often talked about was unions. The respondent knew this. (3) The prohibition was in practice not -limited to working hours. Thus, in the conversation between Weed and Bryant, hereinabove referred to, Bryant said that the only time he said anything about union business "was at dinner time up in the lunch room," to which Weed' replied that Bryant understood "that was also contrary to the rules." Such talk was proscribed in the plant even be- fore work began . As will be seen more fully hereinafter , the respondent, for ex- ample, objected, to such activity in the morning before the time work was scheduled to begin. And although there were periods "when the operators were waiting for their machines to be set up ," and were in the habit of gathering in the aisles and talking at such times , as Foreman Gilda testified , the notice was applied to include such periods. (4) In terms and in fact solicitation and discussion concerning unions was prohibited not only at the places in the plant in which the work and business was carried on, but in such places as the recreation rooms and locker rooms, although, the evidence shows, the employees were permitted to go to these places even during working hours. As to why the notice was posted, the question is whether the respondent promulgated and applied it in order to frustrate the Union, or whether its pur- pose was to maintain production and proper discipline "They had been doing an unusual amount [of solicitation ]," testified Weed, "that is the reason we put it up. They were not paying any attention and we were getting tired of it": When asked at the hearing who "they" were, Weed testified that Everett Clark, Paul Bryant, William M. Breeden , and Eugene Walter , "are-the ones I think of particularly." 68 In determining what gave rise to the posting of the notice, it is necessary first to consider the conduct of the employees . So far as this conduct consisted of discussion concerning -unions, it is clear that adherents of both labor organizations participated in the plant. Such discussion had not been forbidden on company property, prior to the posting of the notice ,69 and no material difference is discerni- ble in the evidence in -the extent thereof as between members of both unions. As to "solicitation", a substantial amount of it did in fact take place in the plant 66 The quotation is taken from the respondent's transcript of the conversation between weed and Clark , taken by a company stenographer. m The quotation is taken from the respondent's transcript of the conversation. 68 These particular employees are among those who were discharged. Their cases are discussed hereinafter . What follows in this section of this Report , while it bears upon all the discharges, is more general and more directly applicable to the issue here being determined. 19 Ralph Daggett, assistant foreman in the machine shop testified , for example , that so far as he knew union discussion in the plant was not forbidden , and that he made no effort to stop it , I 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by adherents of , the Union.' Most 'of this, however, occurred in the -recreation and locker , rooms before work began , during the lunch hour, or during relief periods. Most of the remainder which took place at or near the places of-work, happened when no work was available.70 And a substantial part of such solicita- tion by Union adherents as took place during working hours was minor in char- acter, as far as' the time involved is concerned , often but a few moments being so used, and under such circumstances that production was not interfered with. There are left some instances where production might be said to,have been affected by such activity of Union members. But the respondent's evidence on the point was much exaggerated. While it is unquestionably true that the activity of the Union and its members was greater after about the end of January, ,1942, than it had been, it is significant that although the respondent was in posses- sion of production and earnings records which would be expected to show, in part at least, the effects .of such interference if there had been any, no such records were produced at the hearing.41 The failure to produce such data leaves the logical inference that such activity by members of the Union did not mate- rially'2 affect production. The undersigned is convinced and finds on all the evidence, that such effect on production as may have been caused by the activity of members of the Union inside the plant did not motivate the respondent in posting the notice. In any event, adherents of the Mutual had likewise engaged in such solicita- tion. During its formative period, as has been seen, this activity was particuarly extensive , much more so, indeed , than any such activity of the Union in the plant at any time, and the Mutual engaged in it all over the plant , during working hours, outside working hours, and on the job : This, in turn , played a material part in bringing the Mutual into being, and in maintaining it thereafter. Although the contract between the respondent and the Mutual contained a provision that the Mutual would not transact its business on company time or property , the Mutual nevertheless continued to "transact " such "business" at such time and place. While its extent, thereafter, was undoubtedly much less than before the contract. was entered into, it was still substantial . There is, for instance , the undenied testimony of employee Ernie Jones that there was considerable solicitation by Mutual members in the fuse department during February 1942 "practically every day," the undenied testimony of Paul Bryant that Mutual Steward Frank Close collected dues in the maintenance department in December , and the undenied testimony of Robert Henson that Guild President Titus did certain Mutual busi- ness in the carburetor assembly department late in January or early in February, all these during working hours. Moreover, the interference with production, such as it was, was no greater than, if as much as, that caused not only by the Mutual, but by the activity of 70 Thus, Foreman Gilda testified that from sometime in December to about the middle of February , 1942, the machine shop was running at about 50 percent capacity, that the plant was "tooling up for a new model ," that there were periods during these months when the employees were not busy , that the employees had permission to go to the locker looms "all of the time," and, that the slack periods ranged from a few minutes at a time to a half hour ; further, that there were times, as found hereinabove , when the operators would ' be waiting for their machines to be set up and would gather in the aisles and talk. And it was similarly slack in the shipping and receiving department as well, of which more hereinafter in connection with the discharges of certain employees. 71 That the respondent kept such records is indicated , for example , in the testimony of Assistant Foreman Daggett that it`was pact of his job in the machine shop to keep,total and individual time records of production 7213y the word "materially" here two things are meant - ( 1) the effect, if any, was relatively insignificant in quantity and quality ; and (2 ) the respondent so regarded it. . CARTER CARBURETOR CORPORATION ' 381 the Guild in 1942, and by such matters as the sale of dance and lottery tickets, all of which the respondent knowingly permitted in the plant during working hours. The undersigned finds that such effect on production as may have been caused-by the activity of members of the Union inside the plant did not motivate the respondent in the posting of the notice, nor that it was posted to maintain discipline. What did motivate the respondent is, the undersigned believes, already clear. It was the Union's organizational activity What motivated the respondent in posting the notice when it did will be briefly mentioned. It was, as the complaint alleges, that the respondent knew the Union was then engaged "in a renewed effort to organize.f 74 Among other things,,more and larger meet- ings were being held, more handbills were issued at the plant gates, more but- tons were being worn inside the plant, more stewards appointed. There "seemed to be a much more aggressive attitude," testified Weed. The handbills distributed on the outside, some of which were later left lying about in the plant, seem to have played a major part in the determination to post the notice ." All, or practically all of them, were seen by the respondent 46 It is significant that the notice was posted on the morning of February 25, after the Union had, on February 21, nailed to approximately 600 of the employees, a notice of an open meeting to be held the night of the 24th, and had on the 23d and 24th distributed at the plant gates approximately 2000 circulars inviting attendance at the same meeting. The "renewed effort to organize," the "more aggressive attitude," was apparently approaching a climax. "The zero hour is fast approaching when Carter Employees will be organized (by the Union)," stated the Union's notice mailed to 600 employees on the 21st. "Final arrangements are being made for the completion of the Carter organization," said the hand- bill distributed to 2000 employees on the 23d and 24th. On the afternoon of the 24th the company's notice was prepared. The next morning it was posted?° "Weed testified there had "always" been a rule against'union solicitation on company time or property The evidence makes clear that prior to February 25, 1942, there had been no such "rule " ' If there had been, theic is at least no evidence that it was ever made known to the employees And, if there had been, no reason appears why the Mutual solicitors were not disciplined for their activities on the job during their campaign in August 1941 and following The respondents failure to do anything to stop it, or to dis- cipline anyone for baying done it, would naturally cause the employees to believe that theie was no such iule, or that if there were one, it was in this instance ignored with the company's consent. It may be noted, in this connection, that although the company's posted notice stated that violation would be considered ground for dismissal, no such language appeared in the contract with the Mutual 74 This finding. is based mainly upon the evidence of Weed, Ewart, Union representative Joseph C. Tabor, and certain exhibits in evidence 45 In one or two instances the language of the handbills was intemperate. Weed was particularly incensed about one of them issued near the end of January which apparently imputed to him a lack of patriotism It is not intended by anything said herein thereby to approve the language used It need be said here, merely, that the intemperate language did not, in turn, justify the violation of law. vs Ewart testified that the respondent kept a "labor file", which contained copies of prac- tically all the handbills issued 'n So far as the activity objected to by the respondent consisted of the bringing into the plant of Union literature, it was the fact that it was literature of the Union that was the cause of the objection Much Mutual literature was also brought into the plant. There was no material difference in this respect. More of the former was brought in in February, none of the latter the previous fall The case does not turn, and should not, on the differ- ence in dates. As matter of fact Mutual literature did not cease being distributed in the fall. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Conclusions In the Botany Worsted Mills case, 4 N. L. R. B. 292,78 the Board stated the following : ... Inasmuch as by Section 8 (3) it is made an unfair labor practice to encourage or discourage membership in any labor organization in regard to hire or tenure of employment or any term or condition of employment, it is therefore an unfair labor practice so to discriminate whether or not the discharge is attributed to a violation of known company rules or "conditions of . . . employment." Dtscrinavaatton involves an intent to distinguish in the treatment of employees on the basis of union affiliations or activities, thereby encouraging or, discouraging membership in a labor- organization, and it is immaterial whether this be done by the means of discriminatory company rules, or of the discriminatory application of non- discriminatory rules, or in the absence of any rule [Italics added ] In the instant ease'the respondent discriminatorily adopted a discriminatory rule, and discriminatorily interpreted and applied it It was adopted to main- tain the Mutual and to discourage the Union. On its face, and in practice, it singled out only union solicitation, permitting all other. No reason is shown for this distinction. 'It was interpreted and applied to prohibit even talk of labor organizations, but, only such talk, no reason appearing for the difference.' It was not limited to working hours, nor to the places in the plant where the company's work or business was performed. It was in any event discrimina- tory as between the Mutual and the Union, and constituted assistance to the former, it having already been entrenched. On the facts found these are unfair labor. practices 79 I 48 Enf'd as mod, 106 F. (2d) 263 (C C. A. 3), remanding on another issue 79 On the entire question, see the Botany case cited above ; Matter of William Davies Co , Inc. etc, 37 N L. R B 631; 'Matter of Bersted Mfg Co etc, 27 N L R B 1040, enf'd 124 F. (2d) 409 and 128 F (2d) 738 (C. C A 6) ; Matter of Letz Mfg. Co etc., 32 N L R B 563; and also the cases cited below On the adoption of such a rule, see the Dames and Letz cases, and Matter of Paragon Die Casting Co etc, 27 N. L. R. B 878; Matter of McLain Fire Brick Co etc, 36 N L P. B. 1, enf'd 128 F. (2d) 393 (C C. A. 3). On the point that it was solicitation only by unions which was prohibited, see the Davies case and Matter of Kohen-Ligon-Folz, Inc, etc , 36 N L B B 1294, enf'd 128 F. (2d) 502 (C C A. 5). Concerning the fact that talk.of' unions was also prohibited, see the Davies case. Note also the following pertinent language of Dir. Wayne L. Morse of the National War Labor Board in a case before that body involving General Chemical Co. and set out in 11 L. It B 95, 97: The [National War Labor] Board [he said] has observed the workings of the pro- visions on union activity of many collective-bargaining agreements which attempt in various language to' prevent the soliciting of new union members on company prop- erty. It is the opinion of the Board that any such restriction does not represent a realistic approach to the problem, nor is it conducive to industrial harmony. It is most natural that when a group of employees sit down together during the lunch hour or meet in the locker room prior to going on duty or meet together at other times and places, eien though on company property, one topic of conversation is likely fo be the activities of the union. To pro%ide that a union member shall be dismissed from employment or disciplined in some other way if he discusses union affairs with a non-union fellow employee [or with a rival union fellow employee] while on company property tends only to drive such activities "underground" and fosters suspicion, distrust, and devices of subterfuge The non-union member, in turn, is entitled to protection from coercion and threats on the part of union members who may seek to impose upon him union discussions to which he does not care to listen. But in a free society neither he nor the com- pany is entitled to a ruling that denies union members the right to discuss union affairs and the benefits of membership in the union with employees during leisure CARTER CARBURETTOR CORPORATION- 383 The undersigned finds that by the posting of the notice on February 25, 1942, and by its interpretation and application thereof, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. C. The discharges 1. Preliminary statement The complaint alleges that on February 26, 1942, the respondent discharged 28 named •employees,80 and on February 27, three others,81 and failed and refused to reinstate them, because of their Union membership and activity, thereby discrimi- nated in regard to the hire, tenure, terms, and conditions of their employment, discouraged membership in the Union, encouraged membership in the Mutual, and thereby violated Section.8 (3) of the Act. The respondent in its answer admits the discharges and refusals to reinstate, denies the commission of any unfair labor practices, and avers that the discharges were "for good and sufficient causes," which causes it specified in particulars filed by it at the hearing. The cases of the 31 discharged employees are best considered by taking up initially the case of Everett Clark, president of the Union and the first of those discharged, and then, by appropriate groups, the cases of the others. But before so proceeding, certain more general observations should first be made. Those discharged included not only the Union's president, but its vice-president, recording secretary, financial secretary, several members of its Executive Board, and several of its stewards. Other than the eight employed in the maintenance department, whose average length of service was less, the remainder had been employed by the respondent for several years averaging, on the whole, about 8 years of,service, apparently none less than 5 years, and one of them 16. The evidence is clear that the respondent was and had been aware, at the time of time periods, provided that they do so in a legitimate and proper manner. However, management is entitled to insist that no so-called union activity be carried on within its plant while men are at work [provided, of course, there is no discrimination as between competing unions in this respect]. [Bracketed material added ] Of the prohibition of such activity outside working hours, see the Davies case and the language of Mr. Morse above Cf Midland Steel Products Co v N. L R B, 113 F. (2d) 800 (C. C. A. 6), setting aside 11 N. L. R. B. 1214, cited by respondent. In that case the notice prohibited solicitation of any kind and was not in fact limited to union solicitation. There were other differences as well. In any event, the record here clearly shows that the factors referred to in the Midland case did not enter into the reason why the notice was posted As to the. discrimination in the application of the notice as between the competing unions , see Matter of Federal Bearings Co etc ., 4 N. L. R B. 467 , consent decree 109 F. (2d) 945 (C C. A. 2) ; Matter of Oregon Worsted Co. etc, 1 N L R B 915. enf'd 96 F. (2d) 945 (C. C. A. 9) ; the Berated case, supra; Matter of Wells-Lamont-Smith Corp. etc., 41 N. L R. B 1474; Matter of Aintree Corp etc, 43 N. L. R. B. 1 ; cf. Matter of Nash- Kelvinator Corp etc. , 18 N. L R B 738. As to the threat of discharge for violation , see the Oregon Worsted and Paragon Die Casting cases supra. Finally, that the coexistence of a valid motive with the invalid one, assuming it existed (and the undersigned finds that it did not), would not avail the respondent, and that in any 'event the burden would be on the respondent to disentangle them, see N. L. R B. V. Remington Rand, Inc., 94 F. (2d) 862, 872 (C. C. A. 2), cert. den. 304 U. S. 576. 80 Everett Clark, William Breeden, Eugene Walter, Melda Hopkins, Paul Bryant, Robert Henson, Susie Barbee, Belvia Fowler, Elva Krueger , Bertha Newman , Ethel Ridenhour, Frank- Weaver, Josephine Fagas, Alleyne Hauchin, Velma Mullins, Irene Butler, Ethel Flowers, Mildred Price, Ola Winsel, Martha Stotko, Edwin Langanke, Thomas Kennedy, William Harkins, Ira Harris, Paul Bennett, Ernest Shamel , James Clark, Harold F. Clark. 81 Ernie Jones, Charles Mitchell , Henry Bauer. 384 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD the discharges,' of the connection of these persons with the Union. And it is clear as well that the respondent regarded them as competent employees. The determination of why these people were discharged is rendered somewhat difficult at the outset by the fact that in many of the cases. the reasons given by the company, as will be seen, were added to from time to time until, when the respondent at the hearing filed its particulars specifying the "good and sufficient causes," it had broadened the original "reasons," givedon the day of the dis- charges, to their widest scope. Not only were later "reasons," in some cases, not entirely consistent with earlier one, but in the particulars filed by it at the hearing the respondent insisted that each of the 31 persons it had discharged were dis- charged for all of the numerous reasons therein assigned,8a a situation which, it is clear beyond any doubt from the facts, the respondent knew was not the truth. We are ultimately concerned, of course, with actual reasons for discharges, and these may or may not be the given ones. But the very fact of the respondent's change of position casts doubt upon its assertions "3 and, when coupled with other evidence, may indicate that the discharges were unlawfully discriminatory.` In the determination of the actual,reasons, however, the cases below are considered in relation to the given reasons in their widest application. This requires a con- sideration not only of the events following the posting on February 25 of the no- solicitation notice, discussed in the preceding section, but of various occurrences before that time. These earlier events have already been discussed, but without specific reference to the activities of the employees here concerned ; they will be discussed here only insofar as they bear upon individual discharges. It is the position of counsel for the Board that the no-solicitation rule was promulgated and so interpreted by the respondent as deliberately to create a violation of it so that the respondent, in turn, could discharge the violators without legal responsibility. Counsel in their brief express it this way: "By respondent's interpretation, it [the rule] became a highly provocative instru- ment-`Don't talk about the CIO in the plant' is what Mr. Weed told the union leaders The stage was set. It was certainly a foregone conclusion that there would be violations of the rule-a `foreseeable consequence,' . . . The following day, respondent proceeded to apply the rule and deal out its worst punishment- discharge." It is unnecessary to decide whether, absent discrimination in the adoption, language, and application of the rule, constituting violations of Section 8 (1, of the Act, the posting of a no-solicitation rule with the intent, hope, or expecta- tion that it will be violated, thereby justifying a discharge, per se constitutes a violation for subsequent discharges thereunder. It is clear'at least that where there is such discrimination, the, existence of such intent, hope, or expectation, is relevant on the question whether the discharges were because of the violations or for some other reason. That the respondent had at least the "expectation" is a reasonable inference from several circumstances, particularly the broad restrictions of the notice, as interpreted and applied and, more directly; a statement which Plant Superin- In order to remove any possible misunderstanding , the Trial Examiner inquired of counsel for the respondent as to this point. In response, counsel asserted that each of the 31 were discharged for all of the reasons assigned 88 See Matter of Tennessee Products Corp., 41 N L. R. B 326; Matter of M E. Blatt Co. etc, 38 N. L. R B. 1210, 1 217 ; Matter of National Lumber Mills, etc, 37 N. L R B. 700, 709; Matter of Williams Motor Co. etc, 31 N L R B 715, 738, enf'd 128 F. (2d) 960 '(C. C. A. 8) ; Matter of Gates, Rubber Co. etc., 30 N L R B. 170, 178-80. 84 What may seem to the finder of the facts as sufficient or insufficient reasons, if prop- erly evaluated, can have relevance only in determining the motive of the employer. This motive in most cases must be inferred '(reasonably) largely from subjective criteria. CARTER CARBURETOR 'CORPORAT'ION 385 tendent Nieman made to Foreman Gilda on February 25. As to the former, the language of Mr. Wayne L. Morse, quoted above at page 24, is most pertinent. The respondent presumably expected that what was "most natural" would in fact occur.. As to the second circumstance, Foreman Gilda, a witness for the respondent, testified without contradiction that at noon on February 25, shortly after the posting of the notice earlier the same day, Superintendent Nieman told him that the notice "may hurt somebody, somebody may break the rule and somebody may get fired .., ." This "expectation" was soon realized"' On February 27, the Regional Director of the Union sent a telegram to Weed in which he asked the immediate reinstatement of those discharged. He added that the Union was ready to meet with Weed "in the presence of proper govern- mental representatives, for the purpose of bringing about a speedy settlement of the issues involved." Weed the same day telegraphed a reply in which he said that there were "no debatable issues involved." The respondent raises certain general defenses, three of which are best con- sidered here. It is urged, in substance, that the Union had been informed by letter on February 24 of the posting of the notice, and that at a general meeting of the Union held the night of the 24th (the meeting had been scheduled and announced on the 21st-see page 23, supra), and at a meeting of its Executive Board'the following night, the notice was discussed and it was agreed in effect that members of the Union would proceed on the morning of the 26th deliberately to violate the notice, thereby provoking their discharge, upon the occurrence of which a strike would immediately be called.88 The evidence fails to suport this theory. Neither Union meeting had been called because of the notice. While it was discussed at one or both, and the possibility Nyas mentioned that there might be discharges, the proof goes no further than that those present were told what had been said to them at several earlier meetings, namely, that they could solicit in the plant so long as it was not done at work and so long as it did not interfere with production. The Mutual had already done this much and more. The respondent also offered testimony that two or three of the Union members told other employees on the morning of the 26th that the Union was going out on strike. This was denied by the Union members involved, and their denials are credited. There is abundant credible evidence that the Union members had not expected any strike or stoppage of work to take place. The respondent points to the fact that many of those discharged had relatives working in the plant who were retained. This circumstance has been considered in the determination of the issue. It is urged, finally, that there was no evidence that the discharges had any "tendency to intimidate other union 'members or to dissuade them from joining any union or engaging in any proper union activities," and that such failure of proof is fatal; that on the contrary, union buttons, and other union 'insignia con- tinned to be worn, and relatives 'of those discharged continued their membership and employment "without let or hindrance . . ." Though not referred to, this theory is apparently based upon decisions in the Air Associates (C. C. A. 2) 85 There was no evidence whatever as to a large majority of the 31 discharged, that they had been severed from employment for any breach of the rule by them. Only a small number of those discharged were discharged , according to the respondent's own evidence, for alleged violation. The cases of the others are connected, however. '° The theories of the parties here interestingly contrast . , Board counsel in effect claim the'iiotice was designed by the respondent to provoke a violation "justifying" a discharge. Respondent claims in effect that the Union entered into a "concerted plot" to violate it and create the provocation . But the respondent had already "created" the provocation. 386 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD and Stonewall Cotton Mills (C. C. A. 5) cases 87 Reference, however, to the later Cities Service Oil Co. case,88 wherein the 2d Circuit took the occasion "to rectify an erroneous impression of something [it] said in" the Air Associates case, and to, the later modification by the 5th Circuit upon rehearing of its earlier decision in the Stonewall case,* disposes of this contention. Not only, indeed, was there discrimination to discourage so far as the Union was concerned, but there was definite encouragement so far as the Mutual was concerned 00 Either is a violation. 2. Everett Clark Everett Clark was employed by the respondent since about 1934 in its shipping and receiving department. He had been a member of the Guild but did not join the Mutual. On September 30, 1941, he joined the Union. On January 5, 1942, he became its president. At the time of his discharge on February 26, 1942, he .was under Foreman Fred Lippert. Lippert testified that a week or ten days before February 25, he met Clark in the maintenance department with Paul Bryant, employed with Clark in the- shipping and receiving department, and that he told Clark he understood Clark had been in the maintenance department four or five times "talking to different men." Clark denied it. Lippert further testified that "at times" he had difficulty in locating Clark and Bryant, that one time he gave them "hell," and that on this latter occasion they insisted they were in the machine shop in connection with their work. The work of both Clark and Bryant required them often to be away from their department. It is necessary to refer to these events prior to February 25, because of the inconsistency, more fully referred to below, of the respondent's asserted reasons for Clark's discharge. That these earlier events had in fact nothing to do with his discharge is conclusively indicated by several other factors, among them the following- (1) the discharge notice made out by Lippert and OK'd by Plant Manager Ewart immediately after Clark's discharge on February 26, gives as the specific reason 91 for the discharge, "For soliciting membership in a union on, company property and time, after he had been warned by Mr. H. H C. Weed verbaly [sic] and in writing," and since the "warning" referred to took place on February 25, it is a fair inference that these earlier incidents are not involved ; (2) Lippert admitted that he did not know whether Clark in fact had been "talking to different men" or whether Clark and Bryant had actually been at work in other departments on the occasions he said he had difficulty in finding them, and he concededly did not investigate ; (3) he admitted that Bryant was not away from his department any more than others, and while he did not mention Clark in this connection, the respondent's testimony in effect was that Bryant was away more than Clark was; (4) Lippert testified that Bryant was the only person he warned about "violation of company rules," which is either inconsistent with his earlier testimony or indicates that he did not believe Clark violated any rule; (5) both Clark and Bryant, moreover, were rated by Lippert on their discharge notices as above average in their co-operativeness with others. 87N L R. B v. Air Associates, Inc., 121 F. (2d) 586 (7/9/41 , op as amended on den. of reh 10/15/41 ) ; N L R B. 'v Stonewall Cotton Mills, 129 F ( 2d) 629. 81 N L R B . v Cities Service Oil Co., July 2, 1942, 10 L. R. R 656. 89 129 F (2d) at p 633 90 hay Butler , Mutual secretary, testified (and there were Mutual figures to support it) that interest in and dues collections for the Mutual took a sudden sharp spurt upon the discharge of the Union members. This , she conceded , was because of the discharges. 01 The discharge notice forms in terms required 'the one filling them out to "be specific" in stating the reasons for discharges. CARTER CARBURETOR CORPORATION 387 The no-solicitation notice was posted by the respondent at about 9: 30 on the morning of February 25. Before working hours on the 25th, and 2 hours or more before the notice was posted, Clark distributed 7 or 8 Union application cards in the locker and recreation. rooms, and talked to fellow employees about the Union. He testified that he "might have" also handed out some there later that morning during a 10-minute rest period In any event it was not until after he had returned from lunch'about 12: 30 p. in. that he saw the posted notice, and he did none of these things for the rest of the day. It does not appear that the com- pany was aware of these activities of Clark's on the 25th. The undersigned finds that they had nothing to do with his discharge. The afternoon of the 25th, Lippert asked Clark and Bryant if they had seen the notice. They replied that they had He told them that if he caught them talking in groups he would fire them. Clark asked Lippert to arrange a confer- ence with Weed concerning the notice. Lippert did so, and later the same after- noon Weed saw Clark and Bryant individually, declining to see them together for the asserted reason that the contract which recognized the Mutual as exclusive bargaining agent prohibited his doing so. As indicated hereinabove, Weed told them that under the posted rule even "talk" of unions was prohibited in the plant, including not only the time the employees were actually at work, but even during the lunch period. ' The respondent maintains that after Foreman Lippert and Plant Superintend- ent Nieman "ascertained" that Clark had solicited five named persons on Febru- ary 26, and had handed out application cards to "others" in the locker room, Nieman ordered Lippert to discharge Clark. , Clark admitted that early in the morning of February 26, before work began, he had talked to some fellow em- ployees in the locker room about the Union, and that he handed one card to Lou Hellmann, a Mutual steward, and asked if he would sign it. Hellman did not sign. Frank Blackford, employed in the maintenance department, testified that Clark also solicited him at this time in the locker room without success. Clark admitted the solicitation but placed it 2 days earlier on the 24th. Glenwood Thomure and Cornelius Abel, the former employed in the shipping and receiving department, and the latter in the parts and service department, testified that about 8:10 a. m., 10 minutes after work was scheduled to begin, they were talk- ing together for a few minutes at Thomure's place of work, that Clark then came by and asked them if they wanted to sign up with the Union, that neither replied but turned to their work, and that Clark immediately left. Clark denied their testimony. Lester Thomas, receiving clerk in the shipping and receiving depart- ment, testified that between 9: 30 and 10: 00 a. in. both Clark and Bryant solicited him. Clark and Bryant denied it. These five persons, Hellman, Blackford, Tho- mure, Abel, and Thomas, are the persons for the solicitation of whom, according to the respondent's personnel records (the discharge notice concerning Clark) 92 as supplemented by its testimony, it discharged Clark. Hellman was admittedly solicited on February 26. As between Blackford's testuriony that he was solicited on the 2Gth, and Clark's that it was on the 24th, the undersigned believes Clark. Blackford, who was a member of the old As- sociation, the Guild, and the Mutual, and who is the father of Plant Manager Ewart's secretary and brother of the secretary of the parent corporation, was 90 These discharge notices, entitled "Quit Notices," are not given to employees, but con- stitute records of the company. They state the nature of the severance-uhether it is a leave of absence, a voluntary quitting, a discharge, a layoff, etc., and several lines are left blank in which Is to be filled in the "specific" reason for such severance. Other informa- tion is also noted, including the detailed rating as to listed qualities of the particular employee involved. 621247-43-vol. 48-26 388 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD a poor witness in many respects. Not only was he particularly poor on dates and the sequence of events, but lie was belligerent and evasive, and his antipathy to the Union was so great that- it reflected itself in what he testified to. All this the record itself readily discloses ., The Blackford incident must not be dis- regarded, however, since it is what the respondent (in this instance through Nieman who directly ordered Clark's discharge) thought the facts were which motivated it. This will again be adverted to presently. As to Thomure and Abel, both Mutual stewards, the undersigned is in doubt. For the purpose of this discussion, however, and despite Clark's denial, the undersigned will assume that their testimony is true. The same assumption, and for much the same reason, Will be made as to Thomas, a brother in law of Hanson, assistant foreman, under Lippert. We have then, two persons' solicited before the beginning of work and in the locker room, two others solicited at the same time a few minutes after work was scheduled to begin, and another about 11/2 to 2 hours later. In each case (the first 2 outside working hours) but a few seconds were consumed in-the solicita- tions. In no case, so far as the record shows, was work interfered with. And in the case of Thomure and Abel, their own evidence is actually to the effect that Clark interrupted a conversation between them, of a few minutes' duration, which was entirely unrelated to their work.°3 The evidence of how these solicitations became- known to the respondent's officials on the morning of,the 20th, is briefly as follows: Blackford testified that he told Walz, foreman of the maintenance department, that Clark had solicited him. Walz apparently told his assistant, Claude Newman about it, for the latter told it- to Superintendent Nieman, according to Nieman's testimony. Nie- man then called Blackford who told him what had occurred, according to the testimony of both. Lou Hellmann, also solicited in the locker room before work, testified that he did not report it. Nieman, however, testified that he was told of, it by either Blackford or Claude Newman,84 and that he then spoke to Hell- mann about it. .Thomure and Thomas testified they told Lippert that Clark and Pryant had solicited them ; Lippert corroborated this testimony, and added that he repeated it to Nieman. Nieman ordered Lippert to discharge Clark.96 This a as promptly attended to. A few minutes later, precisely at 10: 07 a. m., accord- ing to Lippert, he informed Clark, in the presence of Bryant, that he was dis- charged for breach of -the company rules, that "we warned you enough yester- day." He said nothing to Bryant. All this, from the time of the first report to Nieman to the time Clark was notified of his discharge, took less than an hour. ' Board counsel argue that even if Thomure, Abel, and Thomas were' solicited as they testified, yet Nieman did not know of such solicitations' at the time of Clark's discharge. The undersigned is not convinced by the reasons given for this conclusion. It is here assumed that Nieman was informed of the solicita- tions (three already assumed) of all five persons, namely, Blackford, Hellmann, "The last comment as to the Blackford incident applies here also. It is pertinent to add, as well ,, that the fact that the time consumed in these solicitations was quite small, does not resolve the ultimate issue The Trial Examiner is not the management . Absent the intent to discriminate in violation of the Act , the management has a perfect right to discipline in any way it chooses for what it regards as a violation of its rules , or for any other reason including -sheer whim . But the relative insignificance 'of the extent of the violation generally cannot be irrelevant in the determination of the motive . See footnote 84, supra. I - 84 Neither Blackford nor Newman , both witnesses , corroborated this. ' Oi Note the absence at this point of an order to discharge Bryant. ' CARTER CARBURETOR' 'CORPOR'ATION 389 Thomure, Abel, and Thomas. and that the testimony as to how the news came to Nieman is also true. Assuming all this as a fact, then, we find that those in- volved in getting the news to Nieman, other than those solicited, were Foreman Walz, Assistant Foreman Claude Newman, and Foreman Lippert. None of them, or Nieman himself, or even Weed. who is vice-president and general manager and in charge of labor relations,06 called in Clark for his version of the facts and gave him an opportunity to answer the accusations. 'They were content to rely, upon stories which originated from obviously strong pro-Mutual and anti- Union employees, three of whom were Mutual stewards. Nothing had occurred before the 26th of February which, in the view of the undersigned,97 satisfac- torily explains this, other than the conclusions hereinafter reached. Of a sim- ilar situation, the Board recently said in Matter of Wells-Lamont-Smtith Cor- poration: 98 The complaints of the Association were always taken at face value ; no attempt was made to ascertain whether they were justified, or whether there` had been provocative conduct . . . The most marked feature of the discharge cases is that in every one of them the employee was discharged without hearing . . . The Association grievance committee became virtually a plant police force whose unsupported accusations constituted sufficient ground for discharge ... As found hereinabove, Clark's discharge notice, which was made out concur- rently with the discharge, gave as the "specific" reason therefor that Clark had solicited membership in a union "on company property and time" after oral and written warning by Weed 90 Ewart testified that later the same morning Nieman told him that Clark had been fired "for putting application tickets into somebody's pocket." In a letter from Weed to the Board's Regional Di- rector the next day, the reason was stated generally to be "soliciting membership in labor organization on company property." ' According ' to the respondent's answer filed in response to the complaint, Clark was discharged for "good and - sufficient reasons." In the particulars the respondent thereafter filed, these were defined to be the following: Repeated solicitation for membership in a labor organization on company time and/or property after having been advised both orally and in writing- that such activity was in violation of the company's rules and the collec- tive bargaining contract covering employees in the plant; threatening em- ployees of the company if and when they refused to become members of a labor organization ; stopping work at a time when he was required to work and refusing to return to work when directed by respondent to do so; incit- ing other employees to quit working and to refuse to return to work ; creat- ing disturbances in the 'planr and attempting to stop the operations of the plant ; interfering with and disturbing the operations of the plant and openly flouting the authority of the management, repeatedly leaving the department in which he was employed without sufficient cause and going into other, departments contrary to the established rules and regulations of "Weed had been informed by Lippert of Clark's discharge a few 'minutes after it took place ; Clark had not then left the plant. See footnote 84, supra. 6e 41 N L R B., No. 253. The "written warning" was the notice posted on February 25.' The oral one has ref- erence to weed's conversation with Clark later the same day. 390 DECISIONS OF NATIONAL LABOR"RELATIONS BOARD the company ; leaving the plant without, permission ; quitting and walking off the job; and failure to report for work-all in violation of the company's rules and regulations.100 Some of these latter items apparently have reference to Clark's activity fol- lowing his discharge and before he left the plant, during which Clark told various Union members that he had been discharged. But he was not guilty of what is alleged in the particulars in this connection. The respondent's records (the discharge notice made contemporaneously with the event), in short, state in effect that the cause of Clark's discharge was what occurred on February 26 up to 10: 07 a. m., but the respondent now alleges that the cause includes occur- rences before that date, on the one hand, and others which took place even after the discharge, on the other. The discrimination arising from the difference in treatment between the Mutual and Union solicitors, the discriminatory adoption, interpretation, and application of the discriminatory rule, the failure to investigate alleged violations, the readiness to accept at face value statements of anti-Union and pro-Mutual adherents as to such violations without calling in Clark and giving him any opportunity to give his side of the story, and the inconsistent defenses,-all these, and the evidence as a whole, point compellingly to the conclusion that in the discharge of Everett Clark, a competent employee 'of some •7 years' standing, and president of the Union, the respondent's purpose, instead of what the respondent claims it to be, was to discourage the Union and to encourage the Mutual contrary to the Act. The undersigned finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual, both labor organizations, by discrimination in regard to the hire and tenure and the terms and conditions of employment of Everett Clark, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Discharges for concerted activities (a) William M. Breeden and Eugene Walter "Mose" Breeden was an employee of the respondent for at least 14 years. For several years up to the time of his discharge on February 26, 1942, he was the operator of the carburetor rust proof apparatus in the machine shop. He did not join the Mutual. He joined the Union on September 6, 1941, became a shop steward in November, and a member of its Executive Committee in December. Breeden was one of the most active Union men. He did a substantial amount of soliciting for it prior to February 25, confining his solicitations within the plant almost exclusively to the locker room outside working hours. On the mornings of February 25-26, before his work began at 7 o'clock, he solicited several employees in the-locker room, during general talk about both unions. Altogether, during this entire period, he secured 15-20 signatures inside the plant. The evidence is clear that in any event no alleged violation of any rule arising out of the activity, up to this time, was what caused Edward Gilda, foreman of the machine shop, to discharge Breeden at approximately 10:30 a. m. on February 26. On the morning of February 25, before the posting of the no-solicitation notice, Jacob Verseman, supervisor of the inspection department of the machine shop; reported to Gilda, according to Verseman's testimony, that Breeden had been talking to several employees of the inspection department at their work. Verse- 10° As already indicated hereinabove, the respondent took the position that these particu- lars were applicable to all those discharged. CARTER CARBURETOR CORPORATION 391 man testified that he saw Breeden twice talking to two men together for "a couple of minutes," and to two others "for a matter of a minute or two," that those were all he remembered , but that there were "probably more." He did not know, he said, whether the men continued to work during those periods. This concern as to Breeden's talking seems , from the evidence, somewhat unusual.101 Breeden's job required him to go to the inspection department quite often and to procure work from the inspectors. Verseman admitted that he did not know whether Breeden was talking to these men about the work or not, or who started the conversation. He made no effort whatsoever to inquire. Breeden had, he testified, at "various times" and "for years" talked to his men "quite regularly." And, he added, employees from "the stockroom, the shop clerks, setup then and machine shop, assembly department and jet department" would "occa- sionally" come in and talk to them. Verseman knew of no one who had ever been discharged for doing so. He did not know, he testified, why Breeden had been discharged. Gilda testified that Verseman reported to him "that Breeden didn't do any work all that morning from about 7 to a little after 8 o'clock, just going from one fellow to another talking to them." He later testified that it was "the greatest part of the time for the first hour or one and one-half hours, something like that." At another point he testified that he told Plant Superintendent Nieman that it had been reported to him that Breeden was off the job "piactically all morning." He then changed the testimony to "the first part of the morning." None of this jibes with Verseman's testimony either as to what he saw or what he told Gilda. Verseman admitted in his testimony that he had seen Breeden at work "early in the morning", that is, after 7 o'clock, and he testified that from the time he first saw Breeden talk to the men to the time he made the report to Gilda was "probably fifteen or twenty minutes, it might have run one-half hour . . ." He told Gilda "about it," he said, and "that they 102 were taking up the time of men over there, we had a lot of work to do." At any rate, sometime between 8 and 9 a. in. the same day, and still before the no-solicitation notice was posted, Gilda told Breeden that it had been reported to him "by a reliable source" that Breeden had,detained the men on the inspec- tion line from their woik. Breeden denied the truth of the report, saying that he had been no farther out of his own place of work than to the "lunch man" about 20 feet away. Gilda responded in effect that if Breeden had any union business to transact, to do it outside the plant, and that if he had not detained the men from their work, to "forget it.,, 103 There was in fact no evidence that - 1°1 There is no evidence , in this connection , that there was any solicitation of these men; they apparently were, moreover, already Union members 102 It does not appear w ho "they" has reference to, if anyone , besides Breeden 103 The conversation between Gilda and Breeden is based on Breeden's testimony . Gilda's version differs in one respect : He placed the time of the conversation as "somewhere around about 10 : 30 or so ," after the notice had been posted , and he testified that after Breeden's denial that he had left his department, he told Breeden that from then on Breeden should not leave the department except on company business because a notice had been posted to that effect, to which Breeden replied that he would try to comply with it. Breeden , on the other hand , specifically testified that the notice was not referred to, and in effect said that it could not have been , since the conversation occurred between 8 and 9 a in. and while Gilda was "coming in to work" and before the posting. - Gilda conceded that lie spoke to Breeden but once that morning He admitted that his earlier testimony placing the conversation at 10: 30 "may, be wrong ," and that the times given by him as to other events might be "mixed up " Ile then placed the conversation as "before noon" but "would not attempt to guess any more" how long before noon, "because I guessed before , I don't know ." In view of all this, and of other aspects of the testimony of Breedon and Gilda referred to hereinafter , it is clear that Breeden 's version is correct and that Gilda's is not. I 392-, DECISIONS OF NATIONAL, LABOIR: RELATIONS BOARD ' Breeden had detained the men•from their work, or that, if he spoke to them as testified to by Verseman it was in'cannection with anything other than the work: As found above, Clark was discharged on February 26,at 10: 07 a. in. Several minutes later, Paul Bryant told Breeden about it. Breeden was then about to go to the maintenance department in connection with his work. On his way there, he went down the aisle between the two machine shop lines, stopped momentarily at some of the machines, and told about a dozen of the operators,104 all Union members,103 that Clark had been fired and, in substance, suggested that they join him in finding out why.300 The operators continued with their 'work, however, and Breeden proceeded to the maintenance department where he had been headed. On his way back to his place of work, Breeden stopped for a moment and told his son, employed in the machine shop, of Clark's dis- charge. He may have spoken similarly to one or two others. He then went toward his own section. At this point Gilda approached him. Gilda' had observed (but did not hear) 'Breeden talking to several of the operators on his (Breeden's) way to the maintenance room 104 He had already been told, he testified, of Clark's discharge. He then went to Ewart, plant manager, told him he expected trouble, and asked for instructions. Ewart told Gilda to instruct his supervisors to keep the men on the job and to fire anyone who got off, tlie job.108 Gilda promptly returned to the machine shop, at which place he then saw Breeden talking to his (Breeden's) son, as related above, and perhaps to one or two other operators. Not over 10 minutes had elapsed from the time Breeden started to the maintenance department to the time Gilda approached him. - Gilda told Breeden that he had "warned" him the day before. Breeden replied, "We are still going to organize Carter Carburetor whether you like It or not." Gilda then discharged him It was then approximately 10; 30 a. in., 23 minutes after Clark's discharge.109 The question, is now why Breeden was discharged. In the determination of this question, some observations of Gilda and Breeden as witnesses are pertinent. Gilda, as the record itself makes readily apparent, was evasive, contradicted himself in numerous particulars ,' and was especially bad as to 304 Bryant also told several , as did Eugene Walter who also learned of the discharge. 1°6 Most of the machine shop was composed of members of the Union. 100 Counsel for the respondent points to the fact that during this conversation Breeden suggested to the operators that they "stop their work." , While Breeden used the phrase, counsel does not refer to other parts of Breeden's testimony which is clearly to the effect found above In any event (assuming even counsel 's version of what Breeden said) Gilda did not claim at the hearing to have discharged Breeden for what he said, but'for the process of saying it. It may be added that even if Breeden had tried to get the men to strike. apparently the (unsupported) theory of counsel for the respondent, it would, in the view of the undersigned , have made no difference here material . This latter aspect of the situation is more fully covered hereinafter 107 Some testimony, much of it confused and contradictory, was offered by the respondent, some of which may he construed to be to the effect that Breeden had been observed talking to the opergtois earlier that morning It is not credited. 308 The finding as to the conversation between Gilda and Ewart is based on Gilda's testi- mony Ewart's version was to the same effect except that he did not testify that he had told Gilda to fire anyone. 100 The discharge notice made out by Gilda several minutes later gives the time of ' Breeden 's discharge as 10 : 30. 110 Note, for example, the contradictions in his story of one conversation with Plant Superintendent Nieman : At one point he testified that Nieman had told him on February 25 that "anybody that does too much talking" would "probably" have to be fired; that Nieman said nothing about unions or labor organizations, made no mention of either the Mutual or the Union ; and that no 'employees were named . A few minutes later, Gilda testified that he did not remember whether Breeden 's name was mentioned. Right' after that he testified that he told Nieman that Breeden was off the job "practically all morning," a CARTER CARBURETTOR CORPORATION 393 time and the sequence of events" Breeden was forthright, outspoken, and con sistent, contradicting himself only in a few minor particulars; this too, the record makes apparent. Breeden's discharge notice states the cause of the discharge as "leaving his, Department too often after being warned not to do that." The "warning" has reference to the conversation between Gilda and Bryant the day before, as related above. In its letter to the Regional Director on February 27 wherein the respondent listed the purported reasons for all the discharges" the cause was given as "Interfering with other workmen and refusing to obey instructions to return to [his job]." 1L3 As with all those discharged, the respondent's answer stated that Breeden had been discharged for "good and sufficient reasons"-a dozen or so, according to the particulars it filed. Gilda was not content at the hearing to rely only on the reason he gave in the discharge notice, but elaborated it somewhat. Breeden,_he said, was discharged not only for leaving his depart- ment too often, but for "talking." He did "not entirely" discharge him for violating the company's posted notice. He did not list it in the discharge slip, he said, because he "didn't think there was space enough on there to put every- thing on there you would like to put on." - Breeden was not discharged for any impairment of or interference with pro- duction, and there was none.114 He was discharged for what took place in 'the 10 minute period between Clark's discharge-at 10:07 and his own discharge at 10: 30, during which, on his trip to and from the maintenance department, he told several members of the Union that Clark had been fired and suggested that they jointly inquire why. As already stated, both Bryant and Walter spoke similarly to other Union members in the machine shop at the same time. For this concerted activity, a natural reaction to what the company had done (and which, as it happens, was also an unfair labor practice-though this is unnecessary to the conclusions)"5 the company saw fit to impose upon Breeden, a faithful and com- petent employee of some 14 years standing, its most severe penalty. Indeed, one piece of Gilda's own testimony significantly tends to corroborate this conclusion. After testifying that Ewart had told him to fire anyone who "got off the job," he was asked : "Supposing they walked off in protest, off on a strike, would you interpret that to mean you should fire them?" . He answered : "I think I would." This would clearly have been an unfair labor practice.116 Then it must' also be one to discharge employees for, the lesser act of trying concertedly to institute an inquiry as to why one of their fellows had been so treated, and to protest the same 14 - which he then changed to " the first part of the morning " Then , apparently forgetting that he had testified that Nieman had made no reference to unions generally or to the Mutual or Union specifically , Gilder testified that Nieman told him "that that notice was posted there to stop solicitation of members for both the Mutual and the C. I 0 , and any other organization , on company property . . (It may be observed here, parenthetically, that if the Mutual solicitation had to be "stopped " too, the Mutual must have been soliciting-as it was ) ° See footnote 103, supra, for examples Except tR'o , those of Henn y Bauer and Charles Mitchell. 133 The company included Breeden , under this head , with the group of persons referred to hereinafter ,- all of whom were discharged in the assembly department the same morn- ing The invalidity of their discharge thus supports the invalidity of Breeden's-the same cause having been asserted in the letter for all. 114 See, in this connection , the discussion at page 21 , supra (including footnotes 71-2), as to the failure of the respondent to produce its records. ns See cases cited in footnotes 134-7, infra. 18 See cases cited in footnotes 134-7, infra. 114 while Gilda did not hear the conversations , there is considerable credible evidence that he must have known that they concerned Clark 's discharge, of which he admittedly was already aware at the time he discharged Breeden. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eugene Walter, was a competent employee of the respondent, for over 8 years in the machine shop. He joined the Union in November, 1940, was elected steward in November, 1941, and became vice-president. He (lid some soliciting for the Union in the plant prior to February 25, 1942, but almost entirely in the locker room and outside working hours; he "sometimes" talked to the man next to him at his wk. There is no evidence that any soliciting he did interfered with work in ashy way, nor was he accused of it. Walter's discharge, as counsel for the respondent rightly says, "is closely allied with that of Breeden." On the afternoon of the 25th, Gilda asked Walter if he had seen the notice posted on the board that morning. Walter replied that he had. Gilda responded that the notice meant what it said .118 Gilda discharged Walter the next morning in the machine shop immediately after he had discharged Breeden, rand Walter's discharge notice, like Breeden's, lists the time as 10: 30 The same reason for the discharge is also there given,119 together with the same later elaborations.. While in the locker room during the morning, as he had a right to be, Walter learned of Clark's discharge which had taken place a few minutes before. He returned to the machine shop, spoke to Breeden about it, and they decided the discharge should be "protested," as Walter testified Like Breeden, Walter told members of the Union in the machine shop about, Clark's discharge. He asked them, as he testified, what "we" were "going to do about it." He admitted speaking to from 25 to 30 men. When Gilda returned from his talk with Ewart related hereinabove he saw Walter standing at an operator's machine for a "fraction of a minute," though he did not know, he testified, whether he was talking to the operator in question, nor whether Walter was there in connection with his work. He maintained that Walter had been away from his own machine at least three times that morn- ing, but the evidence is clear that this had reference either to the times when Walter was a short distance away from his punch press machine in connection with some drills,"' or to the, concerted activity already related in connection with the planned inquiry and protest concerning Clark, and it took but a few minutes in any event. At any rate, immediately after Breeden's discharge, Gilda went over to Walter and discharged him, saying "I think you had better follow Mose, I told you about talking yesterday." An attempt was made to show that various men in the machine shop had, for the preceding 3 months or'so, been taking too much time off to go to the locker room, and that production was adversely affected. But, as has already been found, based mainly on Gilda's own testimony, work in the machine shop was- very slack during this period, there were many times when the men had nothing to do, and they stood around and talked and went to the locker room without objection. This, moreover, had nothing to do with Walter's discharge, nor with Breeden's. Much of what has been said in connection with Breeden's i discharge is also applicable here, but need not be repeated On the respondent's theory of the facts, Walter's discharge was even less justified The undersigned finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual, by discrimination in regard to the hire and tenure and the terms and conditions of employment of William M. Breeden and Eugene Walter, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - 118 Gilda testified that Breeden and Walter were the only ones in his department to whom he directed attention to the posted notice ne There is no evidence whatever, contrary to the discharge notice, that Walter had been warned about leaving the department too often, or that he had done so 110 Walter's testimony to this effect, which was convincingly detailed, was undisputed. ' r CARTER CARBURETOR CORPORATION 395 (b) The discharges in the carburetor assembly room The discharges under this head include 17 persons, 13 employed in the assembly department,'' 3 in the jet department,"' and 1 in the shipping and receiving department 123 All were discharged at the same time, at the same place, and by the same person-at approximately 11 a. in. on February 26, in an aisle of the assembly room, by Plant Manager Ewart. How these 17 persons, all happened to be together in the aisle at this time, and what happened during the 10 minutes they were there, explains their discharge .124 The determining facts are simple. News of Clark's discharge at 10: 07 that morning quickly spread through the plant. Several minutes after he had been discharged and before he left the plant, Clark went through the assembly department where he paused for a few seconds to tell Velma Mullins, a relative, and one or two others, of his dis- charge. He gave no reason for his severance from employment. The employees Clark spoke to were members of the Union. In the meantime, upstairs in the jet department, Belvia Fowler had been informed of Clark's discharge by one of the sweepers. She in turn told it to Melda Hopkins and Ethel Ridenhour. Hopkins went to the assembly department a few minutes later, intending, she testified, to go to the lunch wagon. While there she told 3 or 4 girls there employed, of Clark's discharge. All were mem- bers of the Union. She then returned to the jet department. Fowler, Hopkins, and Ridenhour decided to go to the general office to find out what they could about Clark's discharge ,and to protest it. They left the jet department and arrived a few minutes later in the assembly room, which leads to the office. By this time, 4 or 5 of the girls of the assembly department were together in a group discussing similar action. Fowler, Hopkins, and Ridenhour joined them. Either before the last 3 joined the group, or after they did so,325 Walter John- son, foreman of the assembly department, went over to the group and asked them what it was all about They told him. Johnson said it had nothing to do with him, that Clark was not employed in his department One or more of the girls said they would go back to work when Clark did. Johnson immediately went after Ewart, told him "It happened," and of the group in the aisle Ewart knew, he testified, what Johnson meant by saying "It happened." He said he had been expecting a strike for some time There had been rumors of it, he explained, and only the week before he had received an anonymqus telephone call that there might be one.126 When Johnson spoke to Ewart the latter already knew of Clark's discharge. Ewart and Johnson pro- ceeded at once to the assembly department, Ewart in the lead, Johnson following As they approached the group in the aisle, which then consisted of 10 or 12 persons, but which quickly became larger until all 17'21 were part of it, Velma Mullins asked Johnson why Clark had been fired. Johnson referred her to Ewart. 321 These 13 persons, and their official positions if any in the Union, other than that of member, are as follows : Susie Barbee (member Executive Board ) Irene Butler ; Josephine Fagas ; Ethel Flowers ; Robert Henson (member Executive Board) ; Alleyne Hauchin ; Elva Krueger (steward) ; Velma Mullins ; Bertha Newman ; Mildred Price, Martha Stotko ; Frank Weaver ; Ola Winsel 1P' Belvia Fowler (member Executive Board) ; Melda Hopkins (recording secretary) Ethel Ridenhour. 123 Paul Bryant' ( member Executive Board).. 124 Bryant was not in the aisle, but was discharged immediately thereafter as appears below. 121 The evidence varied, lflrt the difference is of no consequence. 126 As a matter of fact, as found hereinabove, the Union contemplated no strike 127 Bryant joined the group after it moved out ofthe aisle. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . She repeated the question.' Ewart replied that if she did not shut up and go back to work he would.fire her too. Others in the group asked the same question. Ewart first responded that he did not have to give any reasons, but then said that Clark had been discharged for violating the posted 'notice. One or more of the girls said that they wanted to go to the office to protest. Ewart replied in sub- stance that there would be no meeting in the office about it, that Clark was not going back to work. He ordered the group to return to their jobs. Several of the girls replied that they wanted Clark to return, that they would go back to work when he did. For the next 3 or 4 minutes this position was maintained by both sides, and at times the discussion grew warm. Ewart then pulled out his watch and issued an ultimatum that if the group did not return to work in 2 minutes they would all be fired. The argument did not cease ; ' the 2 minutes elapsed ; and Ewart promptly said they were all discharged. From the time the group had begun to gather in the aisle approximately 10 minutes had elapsed 728 Ewart asked the group to move out Hof the aisle. They did so and followed Ewart to Johnson's desk just outside the general office door 329 There was some further discussion. At this time Paul Bryant joined the gathering. Ewart asked him if he was with the group. Bryant said he, was Ewart promptly discharged him. Apparently to facilitate the departure of the discharged employees, Ewart' ordered Johnson to have discharge notices made out covering the entire group. Johnson, foreman, and Gibson, assistant foreman, respectively, of the assembly department, Drews, foreman of the jet department, and Lippert, foreman'of the shipping and receiving department, at Ewart's direction, then made out discharge notices covering the employees under them who had been discharged.39 This took several more minutes. These discharged employees then left the plant. The question remains why they were discharged. Here we'find significant lack of consistency in the reasons asserted by the respondent. In the discharge notices the sole reason given was that the employees had left their places of work "against instructions." '31 In the particulars the respondent filed amplifying the "good and sufficient causes" referred to in its answer, the respondent gave about a dozen reasons. At the hearing, Ewart reduced them to three : "(1) for refusing to return 'to work; (2) later for refusing to leave the building; and (3) interfering with war production." Swart conceded at the hearing that the reason given in the discharge notices was not accurate ;' it was intended to mean, he said, that these employees had refused to return to work (that is, had refused to comply with his order that they do so during the discussion with the group)." So far as the purported .reasons given in the particulars are concerned, it is enough to note here that what the 17 had or had not done before they came together was not what moti- vated Swart in discharging them. He did not know what any particular in- 121 Ewart had put in a call for the police during this period. They arrived later but took no part 129 Except for Velma Mullins who returned to her bench and then left the plant. no The undersigned does not credit testimony of certain Board witnesses indicating that the notices had already been made out 131 Eleven of them contained the added words : "of Mr. Ewart," and 3 (Fowler, Hopkins, and Ridenhour) read . "Leaving Dept. without permission." It is clear that the latter 3 were intended to be included for the same reason as the others As will be seen, Ewart did not `know, at the time he discharged the employees, just what their individual activities had been immediately before. 182The reason given in the discharge notices was, however, repeated in the letter weed sent to the Regional Director the next day But still later, on April 13, Bryant was given, at his request,. a "service letter" (required by Missouri statute's) wherein the reason was then given as : "For refusing to go back to his place of work. He was previously warned." CARTER CARBURETOR CORPORATION .397 ,dividual had or had not done before the group formed. Indeed, he conceded at ,the hearing that when he met the group he.did not know the names of those who composed it. That they were members of the group was enough, as the evidence makes abundantly clear'33 As to the reasons given by Ewart at the hearing, the second of them ("later for refusing. to leave the building") may at once be disposed of. The facts indi- cate that the "later" has reference to the period immediately after Ewart an- nounced the discharges and while the group was at Johnson's desk. In any event, both the "refusal" to return to work and the "refusal" to leave the build- ing were part and parcel of the, concerted effort of the members of the group to learn the reason for Clark's discharge and to protest it. The.same is true of the "interference" with production, which was in any event minor That 'Ewart recognized the concerted nature of this activity (if his recognition of the obvious need be pointed out) is evidenced by the fact that at the hearing he took the position that it was an attempt to strike. This attempt, he testified, began "At the time they gathered" in the aisle. It ended "At the time they were discharged." They were discharged, he added, "Just once, and completely." Ewart's own words thus mdiciste that lie discharged these employees for what he considered a strike activity. Unless, therefore, by familiar principles,'31 such activity was so 'indefensible as to warrant their discharge though the activity was at the same time also a strike (or concerted activity-which it actually was here),' it follows that the discharges are improper under the Act. The respondent's attempt to prove the "interference" with production was itself productive of much exaggerated testimony. The assembly line was in fact stopped but for a few minutes ; some operators were taken on from another line and production resumed. To permit an improper discharge to go un- remedied in the course of a lawful strike or concerted activity because ipso facto production is affected, especially where the effect is of the minor nature 133 For this reason the claim that Fowler , Hopkins, and Ridenhour , or one of them, at the time 'they were leaving the jet department to go to the office shouted "come on," as one respondent witness put it , or "strike is on ," as another testified , is immaterial . As a mat- ter of fact this testimony is not credited The witnesses who testified to it contradicted themselves in important particulars , Foreman Drewes who was in a position to see and hear what went on, and who testified in detail as to their activity at this time, testified to no such asserted conduct, and Fowler, Hopkins, and Ridenhour denied it For the reasons already asserted , moreover , it would have made no difference in the result had these em- ployees been guilty of what is here alleged. And, for similar reasons, the activity of Bryant which preceded his joining the group at Johnson 's desk , played no part in his discharge. Bryant , like Breeden and Walter, in- formed several Union members of Clark's, discharge He had, in addition , engaged in soliciting Union memberships , sonic of it on company time, but in any event no more ,o than members of the Mutual had done. This was not the cause of his discharge , in which 'connection it may be noted that Lippert did not discharge him when he discharged Clank. 134 See N L 11 B. v Fansteel Metallurgical Corp, 306 U . S. 240 , and cases cited in footnotes 136-7, infra 189 In Matter of Niles Firebrick Co. etc , 30 N L. R. B 426 , 435, enf'd 128 F. (2d) 256 ,(C C. A 6 ) per curiam , the Board said of an analogous situation . When suddenly confronted by unfair labor practices directed against a leader of the Union and of their concerted activities and plainly designed to deprive them of their most effective leadership , employees are not limited to their right to engage in an organized total strike in protest against such conduct . Pursuant to-their broader right to form, join , and assist labor organizations , and engage in concerted activities for their mutual aid and protection , they may protest against and decline to lend any assistance to the respondent's unlawful acts. Cf run, Carpet Co . v. N. L. R. B, July 21, 1942 , 10 L. R R 779 (C C. A. 2) enf'g 33 N. L R B 191 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD here found, would, it is apparent, not leave much of the oft-asserted "right"'to strike' and, it may be added, not much of the National Labor Relations Act. The activity here engaged in is far from that type of "insubordination" warranting discharge.138 Particularly where there has been a preceding unfair labor practice, and even without it, it is well settled that employees are pro- tected in such lawful activity.13' Here the reasons asserted by the respondent are mere subterfuges and afterthoughts. Plant Manager Ewart- discharged these 17 competent employees 138 who had been with the company for several years solely because they presumed concertedly to exercise their legal rights (in a legal way). The undersigned finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual, by discrimination in regard to the hire and tenure and the terms and conditions of employment of the 17 persons listed in footnotes 121-3, supra, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (c) The maintenance group discharges13' Eight maintenance employees, all Union members, were discharged on Febru- 'ary 261¢° They had heard of the discharge of Clark and those in the assembly room that morning, and were uncertain as to what to do. During the lunch period, which was from 11 • 45 a. in. to 12: 15 p in, they went to the Union hall where many of the Union members then gathered, and where the discharges ,were discussed. A picket line was established at the plant gates, but the eight maintenance men were advised by Clark to return to work, and they did so At approximately 12 • 15 p in Langanke, Kennedy, and Harkins, the three sweepers, were standing with other maintenance employees at one end of the assembly room where their brooms were. Claude F. Newman, assistant in charge of buildings, and their superior, came up to the group just as the machinery in the assembly room started. Newman said to Langanke, "Are you going to work?" Langanke said "No." Newman accordingly told Langanke to leave. He then turned to Kennedy and Harkins who had not heard the conversation between Newman and Langanke because of the noise of the machinery, waved his arms, and told them to get out. The three sweepers proceeded at once to the locker room. They apparently informed the other five men of Newman's statement, and all eight left the plant at 12: 35 p. in. 136 Matter of Protective Motor Service Co etc , 40 N L It. B 989 , Matter of Harnisch- feger Corp etc, 9 N. ' L It. B 676, 685-687; Cf. Matter of Wilson & Company, etc, 43 N. L R B 804 1sr See-Firth Carpet case cited in footnote 135, supra; cf. Matter of Armour & Co. etc., 25 N L It. B. 989 188 The remarks of Lester Thomas, receiving clerk, before the War Labor Board (which considered the discharges), as to Paul Bryant is of interest. Thomas appeared for the company in that proceeding and in this. The transcript of the proceedings before the War Labor Board (put in evidence by the respondent), shows that Thomas there stated (p 63) : "Paul Bryant was a good worker, the best worker I ever saw for a young man . . . He is still a good man . . . 133 Most of the evidence as to these discharges was undisputed. The differences in the testimony are relatively unimportant ; in some instances the facts related are based upon the respondent's evidence, in others upon the testimony of those discharged, as the evi- dence as a whole warranted. 140 These were Edwin Langanke, .Thomas Kennedy, and William Harkins, sweepers ; Ira Harris, Paul Bennett, Ernest Shamel, and James Clark, windowwashers , and Harold F. Clark, who did miscellaneous maintenance work in the recreation room. Bennett was a Union steward. CARTER CARBURETOR CORPORATION 399 Newman discovered a few minutes later that all eight had left the plant, and promptly reported it to Nieman. He then made out discharge notices covering them all. In,each case he checked the word "Quit" on the slip, and stated as reason therefor that they had "Walked off Job." He regarded them as no longer employees, he testified, because "they had quit their jobs." He knew why they had "quit." "Naturally I supposed," he said at the hearing, that "they were going out with the bunch" who went out "before dinner"-the "assembly group " In each case he listed the termination of their employment as having occurred at' 11: 45 a. in. 'But though Newman regarded the men as having quit, Ewart did not agree. After Newman signed the discharge notices and had passed them in to the office, his check marks opposite the word "Quit" were erased and the word "Dis- charged" was checked on each slip. The following words were then added : "Discharged as per Mr. Ewart's instructions." Ewart then initialed the notice as 0 K. Like all the others, these men were, to use Ewart's phrase at the hear- ing discharged "Just once, and completely." 141 The discharges of these competent men was a'violation of the Act. The under- signed finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual, by discrimination in regard to the hire and,tenure and the terms and conditions of employment of the eight persons listed in footnote 140, supra, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (d) Henry Bauer and Charles Mitchell Henry Bauer had been employed by the respondent for about 9 years when he was discharged on February 27, 1942. He was then an inspector in the machine shop. He had joined the Union 11 months before. He heard of the discharges on February 26, and at the end of his shift at 3 p. in. that day he was chided by other employees in the locker room for not being in the picket line. He came to the plant early the following morning, but instead of going to work he joined the line. His shift began work at 7 a. m. Between 8. 30 and 9 a m, William Slingman, chief inspector of the plant, called Jacob Verseman, foreman of inspection in the machine shop, and asked him if all his employees had reported to work. Verseman replied that three had not reported, Bauer and two others (apparently Union members also), and he asked for instructions. Slingman told Verseman he would advise him later. At about 11 a. m. Shngman told Verseman that he had instructions from Ewart to make out discharge notices for the three employees who had not reported, but that if they should return to tear them up. Slingman and Verseman ac- cordingly made out the three notices. On Bauer's slip he was marked as dis- charged as of February 26 at 3 p. m. "for not reporting to work, Pr. Mr. Ewart's instructions." This portion was in Slingman's handwriting. One of the remaining two men reported at 12: 15 p. m. the same day, and the other, at 7 the following morning. Both said they had been sick, and they were put to work. Presumably their discharge notices were destroyed. Bauer's, on the other hand, remained in effect 1 1I The reason given for these discharges in Weed's letter to the Regional Office the next day was that the men had "Failed to return after lunch." As to this, see footnote 144, infra. Numerous other reasons were assigned in the particulars the respondent filed at the hearing, as has been seen. 142 The findings as to what occurred from between 8 :30 and 9 that morning up to this point, are based upon Verseman 's testimony. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I 1 Verseman testified that never before had Slingman made out discharge notices for him. He did not recall, he said, whether he had ever signed any stating that the discharges were on Ewart's instructions. He then added that he had never made out a discharge notice before on the instructions of anyone to hold them 'pending the possible return of the employee involved. , Bauer had apparently not been informed of his discharge, at least not offi- cially." On March 9, he went into the plant to ascertain his status. He was promptly ushered out by a guard whin told him that his pass had been cancelled. Bauer's case is similar,to the cases of, the discharged maintenance men. It is clear that his discharge on February 27 was not for failure to report for work, but for failure to report for work because he had joined the strike the same clay as the respondent knew."' The discharge of Bauer, a competent work- man of 9 years' standing, was discriminatory. Charles Mitchell had been employed by the respondent for over 8 years when' he-was discharged on February 27, 1942. He was then in the parts and service department. He -joined the Union on September 8, 1941, and became a steward in November or December. This the respondent knew. During the morning of February 26, Mitchell was carefully watched by Roy Hasty, assistant foreman, who even followed him to and from the locker room to observe what he did.15 Early that afternoon Hasty accused Mitchell, of soliciting, and told him to read the notice on the bulletin board 148 There had been no such complaints against Mitchell before."' Mitchell would not have been discharged the following morning if he had come in to work148 He did not come in. He chose, instead, to join the picket line where he carried a Union banner. Foreman Thurmond conceded that he saw him at this activity when he (Thurmond) came in to work a few minutes before 8 o'clock. Thurmond put another employee on Mitchell's job. Late that morning, on his own initiative according to 'his testimony, Thurmond made out a discharge notice for Mitchell, discharging him as of the end of work on February 26 'for "Failing to report for work." This, he indicated, was "the entire, full reason" for Mitchell's discharge. It was induced, he also testified in substance, by Mitchell's failure • to notify him that morning that he would not be in. He would not concede having any idea of Mitchell's whereabouts immediately after 8 o'clock, though he had seen him on the picket line about i minutes before He did "not particularly" care, he added, why Mitchell did not report. Mitchell that afternoon learned of his discharge. As with Bauer, it is obvious from all the evidence that Mitchell's discharge was not for failure to report for work, or for failure to send' in advance notice of intended absence, but solely because he had chosen to exercise his right to 141 Neither Bauer nor Mitchell were referred to in R'eed's letter of February 27 to the Regional Director W Compare, in this connection, the provision in the Mutual contract (under which the Mutual was recognized as bargaining agent for "all" the company's employees) that "Any employee failing to report for work within three days after recall [apparently after leave of -absence for sickness or any other reason acceptable to the Company " ] shall be con- sidered to have quit unless reasons for such failure satisfactory to the Company are given within ten days " [Italics added ] 145 Mitchell's testimony, undenied by Hasty. 146 Hasty's testimony 147 This is based upon the testimony of Hasty and of'Allen B. Thurmond , foreman of the department. 398 Thurmond's testimony. CARTER CARBURETOR CORPORATION 401 join with his Union in the strike. The discharge of Mitchell, a competent work- man of over 8 years' standing, was discriminatory.119 The undersigned finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual, by discrimination in regard to the hire and tenure and the terms and conditions of employment of Henry Bauer and Charles Mitchell, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. Ernie Jones 160 t Ernie Jones was an employee of the respondent for about 6 years. At the time of his discharge on February 27, he was employed in the fuse department under Foreman Roy Young. Be had joined the Union in August 1939, and he became financial secretary in April 1941. Jones worked on the night shift from 11 p. m. to 7 a. in. On the early morn- ing of February 26, Foreman Young saw Union application cards in Jones' pocket. He warned Jones against passing them out, told him of the no-solicitation notice on the bulletin board, and said that if he caught Jones soliciting Jones would be "out.", Jones learned of the discharges which had taken place on February 26, on the afternoon of that day.. Later the same afternoon he joined the picket line where Young saw him. That night he went' to work as usual. In the recreation room during the lurch hour of the early morning of the 27th, Jones asked several girls to join the Union. Young saw this. He immediately decided to discharge Jones At 7 a. in. he told Jones to see Ewart later that morning, but did not say why. At the same time he made out a notice discharging Jones as of that time for "Displaying union application Blanks and advising Girls to loin Union. On Company property." Jones learned of the discharge when he came in later that day to get his pay (it was pay day). In view of what has been said heretofore as to the unlawful discrimination in the posting, interpretation, and application of the Company's no-solicitation rule, it follows that Jones' discharge for soliciting on the employees' own time in the recreation room during the lunch period, under the circumstances here, disclosed, was also discriminatory - - The undersigned finds that the respondent has discouraged membership in the Union and encouraged membership in the Mutual,-by discrimination in regard to the hire and tenure and the terms and conditions of employment of Ernie Jones, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in con- nection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic and commerce among 141Ewart also took the position at the hearing that the failure to report the intended abbence and of the reason for it was the basis for the discharge . He conceded that the primary reason for this requirement was to give the company knowledge of the intended failure to report. He testified that if it obtained knowledge otherwise it would be suffi- cient. Thurmond knew why Mitchell did not come in: he saw Mitchell on the picket lihe. Hasty testified that he recalled no employee in all his 17 years with the company who had been discharged for being absent half a day 110 There is no napoitaut conflict in the evidence as to the facts found with reference to Jones' discharge. - 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States and have led and tend to lead to labor disputes burdening and obstructing commerce and-the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. The Board in the earlier proceeding'51 found "that the respondent dominated -and interfered with the administration of the Association . . . and its successor, the Guild, and contributed support to both organizations." It entered appropriate orders. The undersigned has found that the respondent dominated and inter- fered with the formation and administration of the' successor Mutual and con- tributed support to it. The effect and consequences of the respondent's domina- tion, interference with, and support of the Mutual as the bargaining representa- tive of its employees, constitute a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Because of the respondent's illegal con- duct, the Mutual is incapable of serving the employees as a genuine collective bargaining agency. Moreover, the continued recognition of the Mutual would be obstructive of the free exercise by the employees of the rights guaranteed to them by the Act. Accordingly, it will be recommended that the respondent withdraw all recognition from the Mutual, or any reorganization thereof, as the representative of any of the employees of the respondent for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the Mutual as such representative. Under the facts found, the contract with the Mutual constituted and was part of the unfair labor practices. It is recommended below that the respondent cease and desist from giving effect to the contract with the Mutual signed on or about October 20, 1941, as well as to any extension, 'renewal, modification, or supplement thereof, and any superseding contracts which may now be in force, without preju- dice, however, to the assertion by the employees of any legal rights acquired thereunder Nothing herein shall be taken to require the respondent to vary those wages, hours, seniority, and other such substantive features of its relations with the employees themselves which the respondent has established in the per- formance of the contract or as it has been extended, renewed, modified, supple- mented, or superseded. It has been found that the respondent discharged 31 named employees "' and thereafter refused to reinstate them for the reason that they joined and assisted a labor organization and engaged in concerted activities for the purpose of'col- lective bargaining and other mutual aid and protection. It will therefore be recommended that the respondent offer them immediate and full reinstatement to their former or substantially equivalent positions. It will be further recom- mended that the respondent make them whole for any loss of pay each has suffered by reason of his discharge by payment to each of a sum equal to that amount which he would have earned as wages from the date of his discharge, as found herein, to the date of the respondent's offer of reinstatement, less his net isi See footnote 2, supra. 161 See footnotes 80 and 81, supra. CARTER CARBURETOR CORPORATION 403 earnings 33 during said period. Since the evidence shows that certain "bonuses" had been earned by thbse discharged which were not payable to them as of4the time they were discharged, nor paid thereafter, the recommendation that these persons be "made . . . whole" includes the requirement that these bonuses be included in the amount paid 134 It has been found that the respondent has, by varying methods and over a long period of time, engaged in several types of unfair labor practices, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. The respondent's course of conduct in this respect, by virtue both of its intensive and extensive 'character, discloses a fixed purpose to defeat self-organization and its objects. Because of the respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed, and that a danger of their commission in the future is to be anticipated from the course of the respondent's conduct in the past." The preventive purpose of the Act will be thwarted unless the recommendations made below are coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it is recommended below that the respondent cease and desist from in any manner infringing the rights 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. International Union, United Automobile,' Aircraft & Agricultural Implement Workers - of America, Local 819, affiliated with the Congress of Industrial Organizations, and Mutual Workers' Union, are labor organizations, within the meaning of Section 2 (5) of the Act. ' 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By dominating and interfering with the formation and administration of Mutual Workers' Union and contributing support to it, the respondent has en- gaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. ' 4 By discriminating in regard to the hire and tenure of employment of Everett Clark, William Breeden, Eugene Walter, Melda Hopkins, Paul Bryant, Hobert Henson, Susie Barbee, Belvia Fowler, Elva Krueger, Bertha Newman, 131 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the,respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of CI osiett Lumber Company, etc, 8 N L R. B 440. 154 See Matter of Pittsburgh Standard Envelope Co. etc., 20 N. L. R. B. 516. The fact that these bonuses were payable 'for "continuity of work," as Weed testified, does not affect this recommendation. The "continuity" was lost by reason of the discriminatory discharges 135 See N. L.' R. B. v Express Publishing Co , 312 U S 426; Bethlehem Steel Company v. N. L. R. B., 120 F. (2d) 641 (App D. C ). ' 521247-43-vol. 48-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ethel Ridenhour, Frank, Weaver, Josephine Fagas, Alleyne Hauchin, Velma Mullins, Irene Butler, Ethel Flowers, Mildred Price, Ola Winsel, Martha Stotko, Edwin Langanke, Thomas Kennedy, William Harkins, Ira Harris, Paul Bennett, Ernest Shamel, James Clark, Harold ' F. Clark, Ernie Jones, Charles Mitchell, and Henry Bauer, thereby discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 819, affiliated with the Congress of Industrial Organizations, and en- couraging membership in Mutual Workers' Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law,- the undersigned recommends that the respondent, Carter Carburetor Corporation, St. Louis, Missouri, and its officers, agents, successors, and assigns, shall: • 1. Cease and desist from : (a) Dominating or interfering with the administration of Mutual Workers' Union or any reorganization thereof, or with the formation and administration of any other labor organization of its employees, and from contributing support to said labor organization or to any other labor organization of its employees; (b) Giving effect to the contract of October 20, 1941, with Mutual Workers' Union or to any modifications, extensions, supplements, or renewals thereof, or to any superseding contract with it which may now be in force, as more fully detailed in the section entitled "The remedy" above; (c) Discouraging membership in International Union, United Automobile, Aircraft, & Agricultural Implement Workers of America, Local 819, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment ; (d) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw all recognition from Mutual Workers' Union as the repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said organization as such representative; (b) Offer to Everett Clark, William Breeden, Eugene Walter, Melda Hopkins, Paul Bryant, Robert Henson, Susie Barbee, Belvia Fowler, Elva Krueger, Bertha Newman, Ethel Ridenhour, Frank Weaver, Josephine Fagns, Alleyne Hauchin, Velma Mullins, Irene'Butler, Ethel Flowers, Mildred Price, Ola Winsel, Martha Stotko, Edwin Langanke, Thomas Kennedy, William Harkins, Ira Harris, Paul, Bennett, Ernest Shamel, James Clark, Harold F Clark, Ernie Jones, Charles Mitchell, and Henry Bauer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and CARTER CARBURETOR CORPORATION 405 other rights and privileges in the manner set forth in the section entitled "The remedy," bereinabove ; (c) Make whole the employees named in the next preceding paragraph for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of a sum equal to that which he would have earned as wages, absent the discrimination, from the date of his discharge as found herein, to the date of the respondent's offer of reinstatement, less his net earnings during said period, as set forth in the Section entitled "The remedy," hereinabove; - (d) Post immediately in conspicuous places at its plant at St. Louis, Missouri, and maintain for a period of at least sixty (60) consecutive days from the date. of posting, notices to its employees stating: (1) that.the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a), (b), (c), and (d) of these recommendations; (2)' that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of these recommendations; (3) that the respondent's employees are free to become or remain members of International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 819, affiliated with the Congress of Industrial Organizations ; and that the respondent will not discriminate against any employee bevause of membership in or activity on behalf of that organization; and (4) that the contract with Mutual Workers' Union, dated October 20, 1941, and any modifications, supplements, extensions, or re- newals thereof, and any superseding contracts, are invalid under the National Labor Relations Act, without prejudice, however, to the assertion by the em- ployees of any legal rights acquired thereunder; (e) Notify the Regional Director for the Fourteenth Region in writing within ten (10) clays from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on, or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II ofthe Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 14, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Bililding, Wash- ington, D C, an original and four copies of a statement in writing setting forth - such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies, of a brief in support thereof As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. k Dated November 7, 1942. SAMUEL H. JAFFEF, Trial Examiner.