Ohio Crankshaft, Inc.

In the Matter of OHIO CRANKSHAFT, INC., THE OHIO CRANKSHAFT'COM- PANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (C. I. 0.) and CRANKSHAFT INDEPENDENT UNION In the Matter of OHIO CRANKSHAFT, INC., THE OHIO CRANKSHAFT COM- PANY and INTERNATIONAL UNION7 UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (C. I. 0.) Cases Nos. C-0488 and R-4941, respectively.-Decided March 30, 1943 Jurisdiction : crankshaft machining and assembling industries. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements. Company-Dominated Union: participation in administration by supervisory em- ployees, serving as officers and soliciting membership ; entering into contract' negotiations in absence of proof of majority ; withholding signatures to con- tract after agreement upon its terms for purpose of permitting organization to obtain a majority on the strength of the contract ; assistance in obtaining a majority. Discrimination: discharges for union membership and activity. Remedial Orders : disestablishment of dominated organization; contract there- with invalidated; reinstatement and back pay awarded. Investigation and Certification of Representatives : existence of question, con- ceded ; election necessary. Unit Appropriate for Collective Bargaining : production, maintenance, and serv- ice employees, with specified exclusions. Mr. John W. Coddaire, Jr., for the Board. Messrs. Thomas J. Edwards and Charles D. Johnson, of Cleveland, Ohio, for the respondents. Messrs. William K. Thomas, Darrell Wiley, and Ed Hall of Cleve- land, Ohio ; Maurice Sugar, Detroit, Mich., for the Union. ' Messrs. John S. Pyke, Frank P. Celeste, and Thomas Griffiths, of Cleveland, Ohio, for the Independent. Mr. Horace'A. Ruckel, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF TIIE CASE - Upon an amended charge duly filed December 1, 1942,1 by Inter- national Union, `United Automobile, Aircraft and Agricultural ' The original charge was filed January . 1:7, 1942. 48 N. L. It. B., No. 92. 787 521 247-43-vol. 48-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Implement Workers of America (C. I. 0.), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated December 2, 1942, against-Ohio Crankshaft, Inc., herein called the Corporation, and The Ohio Crankshaft Company, herein called the Company, both of which are' together herein called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing,' were duly served upon the respondents, the Union, and Crankshaft Independent Union, herein called the Independent. - With respect to the unfair labor practices the complaint alleged in substance that the respondents: (1) from a date in 1937, and at all times subsequent have interfered, with, restrained, and coerced their employees in the exercise of the right to " self-organization by various acts, including removal from the racks of the Corporation of time cards of employees known to be members of the Union or who refused to become members of the Independent, placing several employees of the Corporation on a night shift because said employees were either members of the Union or refused to join 'the Independent, making_ statements antagonistic to the Union, and threatening one of the employees of the Company with discharge if he solicited membership in the Union on the Company's time and property, although per- mitting such activity to the Independent; (2) dominated and inter- fered with the formation and administration of, and contributed support to, the Independent, by, among other things, bargaining with the Independent before having recognized it as the bargaining agency of the respondents' employees, permitting supervisory and other em- ployees to solicit membership in and to collect dues and transact other Independent business on the respondents' time'and property; en- couraging the belief that the Independent had a closed shop and that it was compulsory for employees to join the Independent; and (3) on or about June 22, 1942, discharged Lawrence Frank, and on or about, July 21, 1942, discharged Frank Galaska, and thereafter refused to reinstate either of them, because of their membership in and activity on behalf of the Union and for the purposes of discouraging mem- bership in the Union and encouraging membership in the Independent. On December 14, 1942, the respondents filed an answer denying that they were engaged in commerce within the meaning of the' Act, and denying that they had engaged in the alleged unfair labor practices. On the same date the Independent filed an answer denying that the - respondents established, dominated, or supported the Independent. .'OHIO CRANKSHAFT, INC. 789: Pursuant to notice,,a hearing was held from December 14 to 19,' 1942, at Cleveland, Ohio, before Ralph- A. Newman, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board, the respondents, the Union, and the Independent were represented by counsel. All parties participated in the hearing and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. During'the hearing the Trial Examiner granted, over objections by counsel for the respond= ents and for the Independent, motions by counsel for the Board' to amend the complaint by including the name of Lewis Boys, as an, employee alleged to have been discriminatorily discharged, and by including the name of Frank Taylor as a supervisory employee alleged to have engaged in activities in encouragement of the Independent.2 At the close of the Board's case, counsel for the respondents made a motion, in which he was joined by counsel for the Independent, to strike certain other allegations of the complaint and to dismiss the complaint. The Trial Examiner denied these motions. At the close of the hearing the Trial Examiner granted, without objection, a motion by Board's counsel to conform the pleadings to the proof in formal matters, and reserved rulings on motions of counsel for the respond- ents and the Independent to dismiss the complaint. Various other rulings were,, made, by, the Trial Examiner during the course of the, hearing on motions and on objections to the admission of evidence, and in his Intermediate Report the Trial Examiner ruled upon those notions as to which he had reserved decision during the hearing. The Board has reviewed these rulings and all other rulings made by the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 11, 1943, the Trial Examiner filed his Intermediate Report, finding that the respondents had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), 2 In opposing this motion the respondents asserted that they had no opportunity to pre- pare a defense with respect to Boys In granting the motion the Trial Examiner stated, in effect, that if the respondents found themselves surprised by testimony relating to Boys or Taylor, he would entertain a request to defer cross-examination or adjourn the hear- ing Boys was 'on leave from the armed services and was due to return on December 18. He testified as a witness for the Boaid on December 14, the first day of the hearing, and was cross-examined by the respondents . On December 17 Boys was recalled - as a witness by the Trial Examiner and was cross -examined by the Union . The respondents did not participate in further cross-examination . Taylor was called as a witness by the Inde- pendent but was not cross-examined by the respondents. The respondents made no further claim of surprise as to either Boys or Taylor , and made no motion to defer cross-examina- tion of either, or for an adjournment of the hearing . At the conclusion of the hearing the respondents made a motion in which they were joined by the Independent, to strike all the testimony relating to Boys and Taylor . The Trial Examiner denied the motion. We find that , neither the respondents nor the Independent were prejudiced by the rulings of the Trial 'Examine'r with respect to Boys and Taylor. - 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2), and (3) and Section 2 (6) and (7) of the Act, and recommending that the respondents cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act . There- after the respondents and the Independent each filed exceptions to the Intermediate Report and briefs in support of said exceptions. No request for oral argument was received. On December 21, 1942, the Union filed with the Regional Director for the Eighth Region a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondents. ' The Board provided for an appropriate hearing upon due notice before Louis Plost, Trial Examiner . ' Said hearing was held at Cleveland , Ohio, on February 26, 1943. The respondents, the Union , and the Independent appeared, participated,',and were afforded full opportunity to be heard, to examine and cross -examine witnesses , and to introduce 'evidence bearing upon the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are' hereby affirmed. During the hearing the Independent moved to dismiss the petition on the ground that Case C-2488' was pending before the Board. The Trial Examiner referred the motion to the Board for ruling. The motion is hereby denied. On March 10 , 1943, the Board entered an order consolidating Case No. C-2488 and Case No. R-4941 for all future proceedings. The Board has considered the exceptions to the Intermediate Report, and the briefs submitted by the respondents and the Independent in sup- port of their exceptions , and finds the exceptions to be without merit except insofar as they are consistent with the findings of fact, conclu- sions of law, order, and direction of election set forth below. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT t 1. THE BUSINESS OF THE RESPONDENTS' The Ohio Crankshaft Company is an Ohio corporation, having its principal office and plant at Cleveland, Ohio, where it is engaged in the machining of crankshafts and camshafts for heavy duty motors, as in trucks , submarines and airplane carriers , and in the manufacture of Tocco hardening machines. During the year 1941 there were shipped to the Company at its Cleveland plant materials to the approx- imate value of $3,125,475 , of which amount materials to the value of approximately $817,458 were shipped from sources outside the State of Ohio. During the same period the value of the Company 's finished products amounted to approximately $6,207,986, of which approxi- mately 55 percent was shipped to customers outside the State of Ohio. OHIO CRANKSHAFT, INC. 791 -During the first 7 months of 1942 there were shipped to the Company at its Cleveland plant materials valued at approximately $3,367,596, of which materials approximately 26 percent originated outside the State .of Ohio. . During this period the total value of the Company's finished products amounted to approximately $7,319,828, of which materials valued at approximately $4,014,476 were shipped to points outside the State of Ohio. The Ohio Crankshaft Company operates four plants numbered 1, 2, 3, and 5, all located in Cleveland, Ohio. Ohio Crankshaft,' Inc., an Ohio corporation, was incorporated December 13, 1940, and has its principal office and plant at Cleveland, Ohio, where since June 1941 it has been engaged in the business of machining and assembling aviation crankshafts . 'During the first 6 months of 1942 the Corporation used materials , consisting principally of rough or unfinished alloy steel forgings and parts, valued,at ap- proximately $983,947, all of which were purchased from Wright Aero- nautical Corporation, in the State of Ohio, and shipped to the Corpo- ration from points within the State of Ohio. During this period the value of the Corporation's finished products amounted to approxi- mately $2,424 ,623, all of which was sold and shipped to Wright Aero- nautical Corporation , in Ohio. These finished products are intended for installation in airplane engines for ultimate use by the armed forces of the United States. The Company owns the majority of the capital stock of the Corpo- ration. The Corporation's plant and machinery are owned by Defense Plant Corporation , an agency of the United States Government, and are operated by the Corporation under a lease agreement . Both the Company and the Corporation have the same general executive officers from and including the president down to but not including the gen- eral manager of each organization . Each organization has the same personnel director who applies the same personnel policies to the em- ployees of the Company and the Corporation. Operations of the Cor- poration are for the most part conducted in plant No . 4, formerly operated by the Company and also in a portion of plant No. 5. In setting up its operations , the Corporation took over some of the operat- ing personnel of the Company. We find, contrary to their contention , that the respondents are jointly and severally engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile , Aircraft and Agricul- tural Implement Workers of America (C. I. 0.) and Crankshaft In- dependent Union are labor organizations , admitting to membership employees of the respondents. °792 DECISIONS OF, NATIONAL LABOR ' RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the Independent; other inter- - restraint, and coercion The earliest organization among the employees of the Company occurred about 1934 when some of them joined the International As- sociation of Machinists, Local 233, affiliated with the A. F. of L. At the time that organization broke up, in the -early part of 1936, it included a substantial number of the Company's employees. About a year later, in the early part of 1937, the C. I. O. became active in the plant. Shortly thereafter the Independent came into being as a reaction, according to the testimony of Charles Renkel, one of its organizers, against the C. I. O. The first contact of Independent organizers with management was in June 1937, when a; committee of employees informed Dunn, the respondent Company's president and general manager, and Anderson, its assistant general manager, that they wanted to set up a union. Dunn and Anderson told the members of the committee, according to Anderson's own testimony, that if they could succeed in organizing a union that "really 'was on its own feet," the Company would deal with it. A constitution was drawn up and a membership compaign begun. An informal meeting was held on June 18'or 19, subsequent to the meeting with Anderson and Dunn, at which temporary officers were chosen. Renkel was selected temporary chairman.3 A con- stitution 4 was adopted at a meeting of the Independent on July 22, and permanent officers were elected. Griffiths, who was elected presi- dent, continued to act as such until the date of the hearing with the exception of the year 1939, when he was elected treasurer. An execu- tive board and a labor board were created. One of,the members of the labor board was Frank Taylor, who figured prominently in the development of the Independent: His status as a supervisor is here= inafter discussed. On July 23 a group of Independent representatives visited Dunn and demanded immediate recognition. Dunn requested proof of ma- 3 Renkel was subsequently elected a member of the executive board and resigned that office some time prior to January 29, 1938 , upon his appointment as foreman . He re- mained a member of the lridependent , however, and in June 1939 , was a candidate for the office of president . In explanation , Frank Taylor testified that "he may have forgotten that he was a foreman " 4 The constitution made no provision for meetings of the membership aside from annual meetings, but in practice monthly meetings were held , except during July and 4ugust. Meetings are attended by from 50 to 125 members In 1942 the constitution was amended to include in the organization the employees of the Corporation. Since 1941 officers and .the members of the executive board have been elected at the annual meeting from among candidates proposed by a nominating committee. OHIO CRANKSHAFT, INC. 793 jority, stating as his reason for so doing, that the C. I. O. also claimed to represent the employees.. Independent representatives returned the following day with 252 signed application cards, which they left with the management to be checked. This number constituted a majority of the 386 employees, exclusive of supervisory employees, appearing on the'Company's then current pay roll. On August 3, Dunn-addressed a letter to the Independent granting its. request for recognition as the bargaining agent of the employees.- Negotiations for a contract were begun, resulting in a unilateral Statement of Policy, announced by the respondent Company on September 11, which for the most part merely codified already existing policies.-' The Statement of Policy governed the relationship between the re- spondent Company and its employees until September 28, 1942,6 when a contract was consummated under circumstances hereinafter set forth. During this period representatives of the respondents met intermittently with representatives of the Independent for the ad- justment of grievances and on other matters. The principal represen- tative of the Independent in the adjustment of grievances, and other- wise the most prominent Independent member, was Frank Taylor, who has been a member of the labor committee ever since the forma- tion of the organization.7 The supervisory nature of Taylor's duties are in dispute, the Union contending that his work is such as to identify him with management, and the respondents and the Inde- pendent contending that it is not. Taylor has been employed by the Company for 14 years, and by the Corporation since its formation. He described himself as a tool .expeditor or coordinator. Hamilton, respondents' personnel manager, defined Taylor's duties as seeing that tool inventory was kept at the -proper level and that tools were on hand and available to all of the respondents' plants. Taylor received $300 a month in salary and wages, paid partly, by the Company and partly by the Corporation. G The Statement of Policy expressed an intention on the part of the Company to achieve an average 40-hour week, with overtime after 42 hours at one and one-half times the regular rate of pay, in the case of hourly workers, and at regular piece-work rates for piece workers Reductions in force were to be made with regard to skill, efficiency, and seniority , as was reemployment after lay -offs -A grievance procedure through the griev- ance committee of the Independent was outlined Provision was made for vacations. There w as also announced it bonus plan based,on production figures. The bonus plan was later abolished at the request of the Independent - 6 The Statement of Policy was revised in certain respects in 1040 In May 1941, when the respondent Corporation began production, the Statement of Policy was applied to the Corpoiation 's employees and the Independent's membership came to include employees of the Corporation. - 7 Although Taylor never held any other office in the Independent than that of a mem- ber of its labor committee, the minutes of that organization and the record as a whole, reveal him as being very' active in its affairs. Anderson , respondent's assistant general manager , admitted that Taylor was "in the picture" as much as any one person . Zieger, a group leader, thought Taylor was the Independent 's president. , 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He had no employees working directly under him , but he himself took orders 'directly from Sellers, production manager, and McCarthy, general manager of plant No. 4.$ Taylor admitted that he was "classed" as a foreman by many persons, and there is other evidence to show that various employees considered that he was influential in obtaining wage raises. The Cleveland city directories for the years 1939 and 1940 listed Taylor as a foreman . We are satisfied, and find, as did the Trial Examiner, that the employees reasonably con- sidered Taylor a representative of, and closely identified with, man- agement. Taylor's duties permitted him to circulate widely throughout the respondents' plants. He admitted , while testifying, that he trans- acted Independent business on the respondents' time and property, collecting dues and signing up new members . Other credible evi- dence shows that his activities in this respect were widespread. For example, Sam Watrous, a group leader in plant No. 4, called as a witness for the respondents , testified that at the request of Taylor he acted as a committeeman for the Independent for the purpose of signing up new employees in the Independent . Eberhardt, testified ,that in September 1942, just prior to the execution of a contract be- tween the respondents and the Independent, he and Lepke, another employee in plant No . 4, at the request of Taylor, signed up numerous employees on the night shift.' Prior to September 1, 1941 , Sam Watrous was also active in the Independent. Watrous' supervisory status, during this period, is a]so in dispute. Watrous came towork for the respondent Corpora- tion in June 1941, when it started production . He began as. an in- ternal-external grinder under Pabst , foreman of department No. 425, in plant No . 4. Watrous described his duties as seeing that the ma- chinery was hooked up and cleaned . He was ordered to do this by .Pabst because, according to Watrous, he had beei} there longer than other employees. Watrous passed on orders from Pabst to the em- ployees, and kept a chart for Pabst showing the location of the new machines. Watrous had a group of employees to help him , whom he himself generally selected. Two employees , Boys and Ahlegian, testi- ' fled and Watrous admitted , that prior to September 1, Pabst intro- duced Watrous to them as their group leader and "boss." LWatrous further admitted that Pabst looked to him to "keep the ball rolling" and that he reported to Pabst the names of employees deserving a raise, as well as those who "didn't seem to fit into the organization." 8 In March 1941, for example, McCarthy sent Taylor to a plant in,another city to inspect tools to be used in the respondents' plants The Independent's campaign for members is hereinafter more fully described in con- nection with the signing of the Independent's contract in September 1942. OHIO CRANKSHAFT, INC. 795 We construe Watrous' testimony to mean, and we find, that Watrous recommended employees for promotion as well as for demotion or discharge. Watrous summed up his duties prior to September 1, 1941, as doing all the work of a group leader without the pay. On September 1 Watrous was formally named a group leader and- his supervisory status thereafter is not in dispute."' Watrous' admission that his duties prior to this time consisted of doing a group leader's work without the pay, is strengthened by his further testimony that for some time after his formal promotion he continued to receive the same rate of pay he had previously drawn. Nor did his duties change from what they were when production first began, except that toward the end of his employment,' in September 1942, the number of men under his supervision increased to approximately 80, corresponding 'to the rapid growth in the number of the Corporation's employees. We find that Watrous, prior to September 1, 1941, and thereafter, was a supervisory employee. Watrous, like Taylor, was a representative on the Independent's labor board. Taylor's request to Watrous, previously adverted to, that he also act as committeeman in his department resulted, accord- ing to Watrous' own admission, in his signing up from 200 to 300 employees in the Independent, for the most part on the respondents' time and property. Watrous turned'over the dues so collected to Tay- lor. Boys," whose discharge is hereinafter discussed, Ahiegian, and Osborne, all employees under Watrous in department 425, testified without contradiction that Watrous, on soliciting their membership, stated in substance.that everyone who worked in the plant belonged to the Independent and that they too should join. Watrous accompanied his solicitation for the Independent with attacks upon the Union. Several witnesses testified that he told them that the Union was "a bunch of Reds and Communists" who would promise everything and, give nothing, and that the "best", thing for them to do was to leave it alone. Watrous denied making these statements. He admitted, however, that he had a dislike for the C. I. 0. and that the statements attributed to him "might" have represented his "personal opinion." We find, as (lid the Trial Exam- iner, Watrous' denial unconvincing, and that he made, in substance, these statements. After Watrous was formally named as a group leader, he withdrew from membership in the Independent and ceased his activities in its 10 As is hereinafter stated in connection with the "R" case, the respondents stipulated that the appropriate unit should exclude "group leaders, foreman, foreladies, and other supervisory employees " 11 Boys was transferred to department No. 425, under Watrous, about July 1941, and seas solicited by Watrous to join the Independent on the same day. Boys testified that he knew by name five or six employees who were under watrous' direction at this time. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf, although he frequently thereafter expressed his opposition to the Union.12 - The participation of the respondents' supervisory employees was not confined to Taylor and Watrous. The minutes of the Independent show that Ed Trajis was named to a special committee of that organi- zation on February 24, 1940. Carmichael; foreman of tool crib No. 3 in plant No. 3, called as a witness by the respondents, 'testified that when he came to work in 1940 he was hired by Hamilton and Trajis, and took orders from Trajis, who' at that time was foreman of Cen- tral Stores and of No. 3 and No. 5 tool cribs. Activity in behalf of the Union began in the early part of 1942. By July of that year this activity had-become pronounced, culmi- nating in a walk-out on July 17. The concern of the members of the Independent at this condition is shown by the minutes of the execu- tis-6 committee-meeting of July 28, 1942, which reveal that the presi- dent pointed out that the C. I. O. had been active at various plants and urged members of the Independent to become more active. During the latter part of July representatives of the Independent, including Taylor, approached the responderi:fs''represei tatives and requested "a more formal contract than the unilateral Statement of Policy. The` Independent represented that it had a' maj ority among the employees but did not A this time offer any,evidence in support 'of its claim. Hamilton, the respondents' personnel `manager, told the representatives of the Independent that while the respondents could not actually sign-a contract until proof of a majority was given, they would nevertheless\ begin negotiations. Accordingly, during the months of August and September, representatives of the two parties met several times. By' September 2 -an agreement on the terms, of the contract was reached, reduced to writing, and read at a meeting of the Independent on that date. The membership suggested certain changes which were carried back to the respondents for their agree- ment. The respondents, at, a meeting on September 4, rejected the proposed changes, and the meeting was adjourned to September 9. On September 8, the executive committee of the Independent voted to accept the contract as originally drafted. The minutes of the Com- mittee relate that it was "better to have-the contract as it is rather than no contract at all." The Independent finally adopted the con- tract at a meeting held on September 17. Although it is clear that by September 17 the terms of contract had been agreed upon and reduced to writing, it was not signed by the parties, the respondents first demanding proof of a majority. No 12 As is hereinafter found in connection with the discharge of Boys, shortly prior to' January 15, 1942, Watrous told Krysa and Osborne that the C. I 0. was composed of "reds. communists and radicals " OHIO CRANKSHAFT, INC. 797 evidence of such a majority had been furnished the respondents since the Statement of Policy was issued in 1937. In June 1942, however, the Corporation had entered into production with the result that the number of the respondents' employees had grown from approxi- mately, 420 in 1940, when the Statement of Policy was amended, to approximately 3,500 in the fall of 1942. This increase largely oc- curred in plant No. 4 which was taken over and operated by the Cor- poration. Between September 17, when only the signatures of the parties needed to be affixed to make the contract effective, and Sep- tember 28, when the instrument was signed, the Independent con- ducted an intensified drive for members. This drive centered in plant No. 4, where the largest increase in employment had taken place. Willard Eberhardt, an inspector in department 425 of that plant, testified that about 2 weeks prior to September 28 he was asked by Lepke, a member of the Independent's labor board, to solicit members among the night shift in department 405. Lepke stated to Eberhardt that the request originated with Taylor, who had told Lepke that the Independent needed a majority "before they could get the contract signed," and that "it so happened that that department 405 was weak." Eberhardt agreed to Lepke's request, and on 2 different nights Lepke arranged with Taylor to have Eberhardt's and Lepke's names put on the list of night•shift,workers in department 405 so that they might be checked out by the guards, as was required by the respondents. Eberhardt testified that on each of the two occasions when his name was put on the overtime list, he spent approximately an hour and a half on the night shift, doing no production work, and that on the first occasion he signed up about 30 members ,in the Independent and on the second occasion a smaller number, each time in full view of supervisory employees. When he had finished signing up mem- bers, he checked out. The respondents did not pay Eberhardt for the time so spent, although Eberhardt received the customary overtime slip. • Instead, Eberhardt and Lepke were each paid $5 by the In- dependent for "time lost." 13 Eberhardt further testified that on the occasion of his second appear- ance on 'the night shift, Taylor himself told him that although Eber- hardt had "done fine" the first time, he, Taylor, wanted him "to go back-out again, to see if we couldn't get a lot more in," and that the Independent "had to have more signers before [it] could have a majority." Lepke was not called as a witness . Taylor admitted procuring Lepke and Eberhardt to solicit members on the night shift and ad- "This entry appears in the Independent's ledger sheets under date of September 26. The sheets were not submitted in evidence, but were shown to Taylor while on the stand, and Taylor testified that the entry was correct. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitted, in substance, that he himself made the necessary arrangement with the respondents14 He testified that the principal purpose of the Independent's drive was merely to re-sign members in the Inde- pendent because some of the application cards were several years old. He admitted,, however, that some new applications were obtained. When asked if he had told Eberhardt that it was necessary to get new members in order to have a majority so that the contract might be signed, he stated : "I don't know that I told him new members, .. '. I may have told him . 'that we think we ought to have more cards." - Taylor's further testimony as to the purpose of the Independent's membership drive between September 17 and September 28, was evasive : Q. What is the fact, didn't you put on quite a push there ,at the end to kind of bring up that majority just at the last few days before the contract was actually signed? A. I don't think I get what you mean by a push . We wanted to get those names because we couldn't-couldn't-that we had so many cards, we figured we wanted more than that. Q. And the truth is, Mr. Taylor, that-those are the people that were sent into the plant just a couple of days before, the contract was signed for the purpose of building up a, majority, so that you could show this certified public accountant that you had enough to be entitled to this contract . Now isn't. that the truth ? A. No, I wouldn't believe that is the truth. Q. Well, isn't it, isn't that the truth? A. I don't know the difference [sic] times these people have turned in slips or something to the secretary to be paid for-I don't know if that all applies to this drive or anything-,. In view of Taylor's failure to deny the clear and credible testimony of Eberhardt, we accept its true the latter's testimony that Taylor told him and Lepke that the purpose of the membership drive was. 14 Taylor's testimony is not clear as to what he told management His testimony as to his conversation with Lepke was as follows : " . . . ' 'What I want to do is, I will check with the management and tell them'-we were talking about seniority at different times,with the management , and I said . 'Tell him we want to talk about some of the men. his seniority , to get permission for him ,' and I think that was done-and I think a day or so later I'found out that Bill [ Eberhardt ] was doing a good job getting the cards." We construe this to mean, and find, that Taylor told Lepke that he would arrange with the respondents to admit Eberhardt to the night shift , and would give the respondents as an excuse that it was desired to have Eberhardt discuss seniority with some of the em- ployees on that shift We find that Taylor made these arrangements but, in the absence of corroborating testimony , and in view of our other findings, we do not find that Taylor in fact gave his suggested excuse to the management. OHIO CRANKSHAFT, INC. 799 to obtain a majority which the Independent did not,have on Septem- ber 17. , In view of the testimony of both Eberhardt and Taylor, the failure of the respondents to sign the contract on September 17, or shortly thereafter, when nothing further remained to be done to make it effec- tive, becomes highly significant. The most favorable construction which the evidence permits, from the point of view of the respondents is that their signatures were withheld so that the Independent might insure an otherwise questionable majority beyond any doubt. We believe that the construction more in accord with the facts is, and we find, that the Independent did not have a majority on September 17, that both parties to the contract were aware of it, and that the re- spondents assisted the Independent in converting a minority labor organization into a majority organization by the means set forth above. When, according to Taylor's testimony, the membership cards had been "finally" turned over to him by Lepke, and Taylor had checked them with Griffiths, they were given to a firm of accountants which in turn checked them against the pay roll of August 21.15 On September 28 the accountants certified the Independent as having a substantial majority in all the respondents' plants,'E and the contract was signed the same day" CONCLusICNS WITH RESPECT TO THE INDEPENDENT Although the facts above set forth raise the suspicion that the forma- tion of the Independent was inspired by the respondent Company to counteract the influence of the C. I. 0., we find the evidence insufficient to support the allegation in the complaint that the respondent Com- pany dominated the formation of the Independent. We are convinced, however, from the foregoing, facts considered in the light of the entire record, and we find, that the respondents dominated and interfered with the administration of, and contributed 16 The accountants' bill for services was shared equally by the respondents and the Independent 16 The accountants' certification stated that the "ratio" of membership application cards to those employees on the pay roll of August 21 was 67.42 percent of the five plants as a whole. The dates of the cards formed no part of the certification, and the cards them- selves were not offered in evidence 14 The contract, "for and on behalf of all the employees," with certain exceptions, was for a period of 2 years, but "in the event any other union or unions are certified by the National Labor Relations Board as the collective bargaining representative of the em- ployees or any part thereof," then the contract was to become null and void as to such employees. The contract continued-an automatic renewal clause in default of 30 days' notice of termination by either party. It provided fora system of seniority and a method of handling, grievances not essentially different than those created by the Statement of Policy of 1937, as amended in 1940 Existing wage rates were maintained and changes were left to further negotiations, "although nothing herein shall prevent the company from adjusting said rates subject to later negotiation." 0 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support to, the Independent. The Independent is not, nor has it been since its formation, a freely chosen labor organization and collective bargaining agent of the respondents' employees. We find it incapable of being or acting as such organization and representative. - We have found above that Taylor, Watrous, Trajis, and Renkel, all supervisory employees, were members of the Independent and active in its affairs. The ineffectiveness of"the Independent under =these circumstances is illustrated graphically by its acceptance of the uni- lateral Statement of Policy in 1937 and by its agreeing'to a contract in 1942, neither of which instruments substantially changed previ- ously existing working conditions. In September 1942, when -the Union was seriously competing for the allegiance of the employees, the respondents clearly indicated their preference for the Independent by entering into, negotiations with the Independent, without proof of majority and when in fact no majority existed. Thereafter, the re- spondents aided the Independent to secure its necessary majority by permitting Independent organizers to circulate throughout the night shift in department No. 405-where the Independent was weak, for the purpose of s'oliciting'ineiiibers. The degree of'assistance thus ren- dered the Independent becomes evident when we consider the prestige 'which accrues to a-labor organization which has successfully negotiated a contract with an employer. It is a reasonable inference, and one which we draw, that, the pendency of the Independent's contract be- carne a natter of knowledge among the respondents' employees gen erally, and that they understood that realization of its presumed advantages awaited only their signing application cards in sufficient numbers to constitute a majority. We find that the respondents dominated and interfered With the ' administration of the Independent and contributed'support thereto by the activities of supervisory employees recited above, by entering into' contract negotiations with the Independent without receiving proof'of. its majority status, and when, in fact no majority existed, and by aiding the Independent in securing a majority. We further find that the respondents, by said domination, interference, and support, interfered with, restrained, and coerced their employees in the exercise of the. rights guaranteed in Section 7 of the Act. Since the respondents have interfered with the administration of the Independent and contributed support to it, it follows, and we find, that the contract between •tlie respondents and -the Independent is illegal and void. ' We find 'further, that the respondents, by the anti-union statements of Watrous, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. 0 OHIO CRANKSHAFT, INC. - 801 B. The discharges 1. The discharge of Lewis Boys Boys began working for the Corporation on May 26, 1941, as a laborer. After about 2 months lie was put to work at an assembly lathe, and towaid`the end of his employment operated 2 lathes in the final assembly department. He had never been reprimanded for slow or faulty work, and received, together with the other workers in. his group, since his transfer to the final assembly department, 3 group bonus payments for doing the work under the time set. Boys, a for- mer seaman, previously had been a member of the National Maritime Workers' Union, a C. I. O. affiliate.' About 2 weeks prior to January 15, when Boys was discharged under circumstances presently to be discussed, he received a handbill of the Union, which had been passed out at the plant gate, and signed a membership application. He dis- cussed the C. I. O. with from 10 'to 12 employees and asked them to sign,application blanks distributed by the Union. During the same period Boys talked about the. Union, .to Watrous, and told Watrous that he had sent in his applict ion,'to which Watrous made no reply. We find, as did the Trial Examiner, that the respondents knew of Boys' interest in the C. I. O. The respondents contend that Boys was discharged because he was soldiering on the job. Boys testified that a day or two before his discharge, at about 4: 30 p. in., a half hour before he went off duty, he stopped work to clean the metal chips out of his drill press, a process which had to be performed occasionally to avoid serious injury from flying metal splinters. Zeiger, Boys' group leader, observed Boys at this task, looked at his watch, and continued on. A day or two later, on January 15, at about 9 a. m.,-Boys was summoned to the office of McCarthy, plant superintendent, where McCarthy discharged Boys, along with two other employees, Osborne and Krysa, saying to Boys merely, "'I'm sorry, I think you are a victim of 'circum- stance." is On the following Friday Boys secured at the same time a.check for his last bonus, and his separation notice. The notice stated 'that Boys had not given the Corporation "all that he was ca- pable of giving." On it were also the words, "Do not re-employ." Zeiger, Boys' group leader, Wilk, his department foreman,, and Potts is Boys, Osborne. and Krysa were taken to McCarthy's office by Potts,' chief of plant police, who accused the three men of, having tampered with machines and told them that they would be fortunate if they were not arrested.- Potts, while testifying, admitted that it was not certain that any machinery had been tampered with , and that he had no real evidence that the three men had been guilty of such an act. Foreman Wilk testified that he had never heard of any sabotage in the department. The respondents at no time accused Boys of improper conduct and admitted that Potts' accusation played no part in Boys' discharge. , 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each testified that they knew of no reason, nor had they mentioned any reason to McCarthy, which would justify the latter notation on the discharge notice. Wilk admitted that the foreman usually,de- termined what went on such a notice. Although Hamilton, the re- spondents' personnel director, testified that the entry was made through error, the Trial Examiner did not credit his testimony in this respect. We find, as did the Trial Examiner, that the notation was i intentionally made. Zeiger, Boys' group leader, called as a witness for the respondents, testified that on the day before Boys' discharge he noticed, some 30 or 35 minutes before the end of the shift, the Boys' drill press was shut down for the day; that he reported the matter to Wilk that same afternoon and recommended that Boys be discharged. Zeiger testi fled that Friday, January 14, the day before the discharge, was the 'first day on which Boys' machine had been shut down for so long a period before closing time, and that he could not 'recall ever having specifically warned Boys about quitting early. The Trial Examiner credited, as do we, the testimony of Boys, corroborated by Zeiger, to the effect that Friday, July 14, was the first occasion on which Boys shut his machine,down as early as 35 minutes before the end of his shift, and that he had never been ad- monished about quitting early. In view of these facts, it would be difficult, even if the discharge had been an isolated incident, to credit as the true reason for, the discharge of an employee whose work had uniformly been satisfactory, the fact that he shut his machine down in order to clean it 30 or 35 minutes before closing time on a single occasion. Viewed in the context of Watrous' discussions of the coin- ing of the C. I. O. to the plant with the three men the morning of their discharge, and with Zeiger immediately after their discharge and on the same day, and of the unfair labor practices of the re- spondents as herein found, Zeiger's explanation of the reason for Boys' discharge becomes still more implausible. The 'improbabilities inherent in Zeiger's explanation of the reason for Boys' discharge become no less improbable in the light of the testi- mony of Wilk, who actually discharged Boys. Wilk testified, in addi- tion to the incident on July 14, that for the 2 weeks preceding the discharge he had had Zeiger make a check to find out what was causing a falling off in production in the department, and that the result of the check disclosed that Boys had shut his machine down 20 to 35 minutes before quitting time on each of the three nights preceding the shut-down of January 14,19 Wilk testified that he called this to 19 Others who were shown by the check to have slowed production , according to Wilk's testimony, were Krysa and Osborne , who were both discharged at the same time as Boys, John Kama, and another whose name Wilk was unable to recall, but who, he testified, OHIO CRANKSHAFT, INC. 803 Zeiger's attention. Wilk admitted that he had never, however, talked to, Boys about this alleged series of four consecutive early shut- downs,20 and as did Zeiger, spoke highly of Boys' work, testifying that he was a "wonderful" worker when 'he worked and a "very good boy." Wilk in one respect corroborated Boys' testimony, namely to the effect that, the operators themselves had to clean the shavings from the tops' of the machines. Wilk testified that not only was it per- missible and customary to shut down the machines just before quitting time for this purpose, but that he frequently allowed as much as 15 or 20 minutes for this purpose, and sometimes longer if production ^ was not affected. We credit, as did the Trial Examiner, W ilk's testi- mony on this point. Wilk's testimony contained, many self-contradictory statements, however. On the question of whether he observed that Boys had shut down early prior to January 14, the day before the discharge, Wilk contradicted himself, first testifying that he had personally observed early shut-downs by Boys of from 20 to 35 minutes 3 days in a row, and later asserting that his first personal participation in the investi- gation was the late afternoon of the day before the discharge. Wilk also contradicted the latter statement in testifying that for at least 2 weeks preceding the discharges he had been personally investigat- ing a slow-down in the department. Additional self-contradictory statements were his assertion, made with the obvious intention of 'including Boys in the reference, that he had admonished,the men in his department for early shut-downs on various occasions, and his later failure to answer categorically when asked if Boys had in fact been warned.21 Not only was Wilk's testimony replete with self-contradictory state- ments as found by the Trial Examiner, but his testimony was also in conflict with that of Zeiger. Wilk in his testimony denied that Zeiger, as testified by'the latter, had recommended that Boys be discharged, but stated that Zeiger had recommended only the discharge of Krysa and Osborne. He further testified to halving called to Zeiger's atten- tion three shut-downs by Boys, claimed by Wilk to have occurred prior to January 14, whereas Zeiger had denied knowledge ,of any early was still employed by the respondents at the time of the hearing The original charge in the instant matter was filed on January 17, 1942, and contained the names of Boys, Os- borne, and Krysa as employees alleged to have been discriminatorily discharged. Osborne and Krysa were not,named, however, in the complaint when issued. 20 On the effect of prior condoning of similar offenses, see Firth Car pet Co. v. N. L. R. B , 129 F. (2d) 633, enf'g 33 N L. It B. 191. - 21 Wilk answered as follows Q. When you had these talks that you refer to, was Mr. Boys present? A I talked with the individuals, I made it my practice to contact these boys indi- vidually, daily 521247-43-vol. 48--52 804 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD shut-down prior to that of the 14th.22 Wilk's statement that he called the shut-downs to Zeiger's attention is also inconsistent with his own prior testimony that his personal participation in the investigation commenced the afternoon before the discharge. If, on the one hand, Wilk did not himself investigate, Zeiger, the group leader was obvi ously the one who, did. If, on the other hand, Wilk conducted- the investigation personally, his foregoing statement that his personal participation therein commenced only on January 14, must necessarily be,false. We find that Boys did not shut down his machine early on 3 consecutive days prior to his discharge, and further, that it is highly improbable,, particularly in view of Wilk's admissions,' that the re- spondents would have discharged a satisfactory employee without warning because he shut down his machine to clean it 35 minutes before quitting time on a single, occasion. We think a much more logical ex- planation lies in the respondents' and particularly Watrous', opposi- tion to the union activity of the employees. This conclusion is justified by the immediacy with which Boys' discharge followed his joining the Union, the notation not to, reemploy on his separation, notice, the failure of the respondents to establish any reasonable basis for the discharge, and the circumstances attending Boys' discharge. Boys had advised Watrous that he had joined the Union about 2 weeks before his discharge. Watrous admitted that about the same time "talk about the C. I. O. swept through the plant just like prairie fire," and that he had several times discussed the situation with Wilk and Zeiger. According to the testimony of Osborne, on two oc- casions within the 2 weeks prior to Boys' discharge Watrous stated, on one occasion to Osborne and on the -other to Osborne and Krysa, that the C. I. O. was composed of "reds, commimists and radicals." Although Watrous denied making,.these, statements we credit Os- borne's testimony, as did the Trial Examiner. Watrous further admitted that on the day Krysa, Osborne, and Boys were discharged, and shortly before the discharges took place, Krysa and Osborne told Watrous that they understood some employee was being laid off, and asked "What would you do, would you sign up with the C. I. O. or wouldn't you?" Watrous admitted advising them against joining the Union, stating that he did not think the Union would do them "any good.": 22 Zeiger's testimony on this point is corroborated by Wilk's admission that he had not talked to Zeiger about Boys' work fora week priov to January 14 , If this betaken , as true, Wilk could not, therefore , have informed him of any shut-down by Boys during the 3 days prior to January 14. The Trial Examiner resolved this inconsistency in favor of the state- ment that Wilk saw Boys shut down early only the day before his discharge , stating that it challenged credulity to suppose that he would have neglected to tell Zeiger of three serious shut-downs alleged to have occurred while an investigation of an alleged shut-down was in progress. OHIO CRANKSHAFT, INC. 805 'On the basis of the facts related above, and on the record as a whole, we find that the respondents discharged Boys not for any reason con- nected with his, employment; but because of his union membership and activity.. 2. The discharge of Lawrence Frank Lawrence Frank was discharged on June 22,,1942, allegedly for stirring up discontent among the employees with respect'to their wages. Frank came to work for the Corporation on November 8, 1941, in department 415 in plant No. 4., lie is a metal polisher of some 20 years' experience. He came to the Corporation from the Eaton Manufacturing Company, where he-had been a member of the C. I. 0. Although he never formally transferred his membership to the Union, he passed out membership-application cards whenever, according to his testimony, he had the opportunity. Later, Frank qualified this to mean during lunch periods and other periods when he was not working. ' There is no 'other evidence that he passed out cards on the 'respondents' time., Altogether, Frank obtained the applications of 50 or 60• members, and collected a still larger number of cards, from other solicitors. • On Sunday, January 18, 1942, Frank circulated union-application cards during a lunch period., That evening, when he checked out, his time card and those of three' other employees, all members of the C.J. 0., were missing from-the racks. Within a day or so the same thing happened again with respect to Frank's card. On this occasion Frank asked McCoy, foreman of department 415, where his time card was, stating'that he, believed that he was to be discharged because he was a inember of the C. I. 0. McCoy denied that this was the case. He went on to•state, however, according to Frank's testimony, that he did not 'think it was, "right" for Frank to talk about the Union to "those young men,",and that if hei had known the preceding Sunday that it was Frank who had distributed union cards, he would have discharged him at the time. Frank's testimony was denied by McCoy who 'testified that-he told Frank he-".didn't think" Frank was to be discharged for his union activity, and that Frank's union membership made no difference to him, but that Frank should not solicit members during working hours. The Trial Examiner who observed the wit= nesses credi'ted Frank's testimony as against McCoy's denial and found, as do we, that McCoy made the statements attributed to him by Frank. A few days after the incidents above related, Frank and the other C. I. 0. members whose time cards had been removed were transferred to department 425, where Frank-was assigned to do final polishing. No other employees' were transferred at this time. Sellers, production 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager for the Corporation, testified that the transfers were occa- sioned by a critical situation which had arisen in department 425 which called for experienced polishers. ' Frank's wages were raised 6 cents an hour upon his transfer. Sellers also testified that he knew prior to Frank's promotion that he had been talking too much with other employees. The complaint alleges that these transfers were discriminatory. The Trial Examiner, though finding that the matter was not free from doubt, found the evidence insufficient to support the allegations of the complaint. ' We concur in' this finding. In April, Frank was transferred from work as a final polisher to rough finish work in the same department. Watrous, whose activities in support of the Independent and in opposition to the Union we have above described, became Frank's group leader. As a final polisher Frank had been receiving $1.03 an hour. The highest wage for rough finishing was 95 cents an hour. Frank, however, continued to draw his wage as a final'polisher while doing rough finishing. Sullivan, department foreman, testified that this was because of the respondents' policy not to reduce wage rates upon transferring employees. Wat- rous testified that upon his transfer, and several times subsequently, Watrous cautioned Frank not to discuss his higher wage with other employees. Frank denied that he had ever been cautioned in this respect. The Trial Examiner found Frank to be a credible witness. We credit Frank's testimony in this respect and find that Watrous had not cautioned Frank against discussing his wages with other employees. After Frank had worked a short time on the day shift at rough finish .work, he was transferred to the night shift. Sullivan, Frank's foreman, testified that Frank's transfer to rough finishing was occa- sioned by Frank's "gossiping" while on final polishing, a fast operation which required the constant attention of an employee, and that he ,transferred Frank from the day shift because he "wanted him out, of there." Sullivan admitted that he had not spoken to Frank about 'his "gossiping" until after Frank had been transferred to rough finish and subsequently put on the night shift. Frank worked on the night shift until June 22. There is no evidence in the record that during this period of approximately 2 months Frank engaged in any "gossiping." On June 22 Frank came back on the day shift. On that morning Watrous observed some of the employees talking together in small groups. On asking two of them what the trouble was, he was told that Frank had told them that he was receiving more wages than they. One of them complained about this, stating that he had been, employed for a longer time than Frank and should receive a wage comparable to Frank's. Watrous then talked with OHIO CRANKSHAFT, INC. 807 Frank and accused him of lying about the amount of his wages.. Frank, while testifying, admitted that he night have erred in calcu- lating the amount of the wages, stating, however, that he was never able to determine exactly what he was earning because of the operations of the bonus system. Later during the morning of June,22, two more employees, John and Jacobs, told Watrous of having talked with Frank. Watrous testified as follows with respect to his conversation with John and Jacobs : Q.... In that conversation with "Curley" John he mentioned the fact that Frank had been talking about the C. I. 0. and he told you about the C. I. 0., didn't he ... ? A. Yes. 'That's ... right. Q. "Curley" John told you that Frank had said to him, "You better get in the C. I. 0. and then we will all get, $1.08 an hour." That's what "Curley" John said to you, wasn't it? A. That is right. Q. And, as a matter of fact, later you talked to Pete Jacobs, didn't you? A. That's right. Q. And Pete Jacobs made substantially the same state- ment . .. "You had better get into the'C. I. 0. We have a lot of these polishers signed up and we will get all of our wages raised." Isn't that so? A. Yes. Q. And that was said on the morning of June 22; the day this man was fired . . . isn't that right? A. Yes. At lunch, Watrous discussed the situation with some of the, other group leaders. About 2: 15 p. m. Sellers came through the depart- ment. Just before Watrous saw Sellers, Watrous asked Frank why he was "lying" to. the men about his salary, and Frank replied that he was "joshing the boys a little" and would stop it. Watrous ex- plained the situation to Sellers telling him that Frank was causing "more trouble." Sellers replied, "Then fire him. Get him out of here. Stay right with -him until you get him out of the front door. Don't let him out of your sight a minute." Watrous wrote out Franks dismissal slip, and left him at the guardhouse. We are unable to credit the contentions of the respondents that Frank, an admittedly good workman who had been promoted in January to work as a final polisher, was discharged in June because 808 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD of boasting that he received more in wages than his fellow employees, or of claiming that he received more than he did. As has been found, the promotion was made in spite of Sellers' professed knowledge that Frank had been talking with other employees. The higher wage rate paid Frank was a , matter of the respondents' own ' creation and admittedly reflected the respondents' policy. We believe that 'had the respondents been desirous only of putting an end to any dissatisfaction among Frank's fellow employees they would have informed them of this policy and of the wages which Frank actually received. We believe that the gravamen of Frank's offense, and the real reason for his discharge, was the discovery by Watrous just prior to his dis- charge that°Frank was proclaiming the virtues of the Union as a means whereby the wage rates of all the polishers might be improved. There is no evidence .in the record from which to conclude that Frank's conversations with the other employees took place during periods of actual work. Assuming that they did, however, we con- trast the treatment accorded- Frank in discharging him, with the respondents'- toleration, and encouragement of widespread Independent activities during working hours by Eberhardt and Lepke, as pre- viously found. We find that the respondents on June 22, 1942,. discharged Frank not because of his conduct as an employee, but because of his activity on behalf , of the Union., 3. Frank Galaska On Friday, July 17, 1942, 17 union members employed by the Cor- poration went on strike. They were joined on the picket line by Frank Galaska who,was just r,etur-ning to work that morning from a tempo- rary absence due to an injury. Immediately following the walk-out, Hamilton, personnel director, according to his own admission, asked representatives of the Army Air Corps to investigate the strikers. Hamilton testified that he made the request in order to secure the 'Air Corps' "approval before we. brought them back to work" because the respondents "wanted to know, ,in view of the fact that there was a defense plant here . . . what [their] liability or responsibility was regarding the return of these people." On July 20 the Air Corps wrote the respondents a letter marked "confidential" stating that the,_ Air Corps had "no objection to the reemployment" of 13 designated strikers. The letter included the following statement : Further investigation' is required of the following individuals and we will notify you further as to these men as soon as our investigation has been completed.. , OHIO CRANKSHAFT, INC. 809 The letter named 5 employees, Galaska, Farley, Kerekes, Hendricks, and Martin, as those whose cases had not been completely investi- gated. The strike was called off on'Monday, July 20, but none of the em- ployees were returned to work by the respondents until the following day. On July 21, Hamilton interviewed several of the strikers, in- cluding the 5 excepted from approval by the Air Corp's letter of July 20. Hamilton informed Galaska and the other 4 employees named above that they were discharged and gave them separation. notices dated the previous day, July 20, bearing the notation "Left job with- out permission. - Return not okeyed by Army Air Corps." When asked the reason for the discharges, Hamilton informed the employees that it was "The work of the Army Air Corps." The remaining 13 strikers were returned to work at this time. On July 22 the Air Corps again wrote the respondent stating that further investigation had been made of Hendricks, Kerekes, and Martin, and that no information, has developed, which would warrant our' with- holding permission for their reemployment . . . Therefore it is left entirely to the discretion of yourself as to whether or not you reemploy these individuals, as this office will interpose no objec- tions. - Hendricks, Kerekes, and Martin were then reinstated., On July 31 the Air Corps directed a third and final letter to the respondent stating that the investigation of Farley and Galaska had been completed. With respect to Farley it stated that while he is quite "loud mouthed" and agitated for membership in the ,C: I. 0., and recently has -caused -a certain` amount of un- rest among fellow employees regarding wage scales,and working conditions, he has not- been guilty of causing- any "slow downs" and is generally considered a good worker .. . permission is granted to reemploy Farley if you so desire'. With respect to Galaska the letter continued, our investigation shows that-you would be justified in refusing to reemploy him . . . May,,we further state' that it is not the province of this office to interfere with any person's rights to organize or solicit members for various unions unless they are definitely interfering with production. 'Upon receipt of the letter of July 31, Farley was reemployed. Galaska has never been offered reemployment. The respondents contend that they'failed to reinstate Galaska solely because of the failure,of-theAir Cor.ps,to,tapprove his reemployment. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is unnecessary for us to decide whether the respondents would have been guilty of unfair labor practices had they in fact taken this action at the direction of the Air Corps, since we.are convinced upon the, entire record that the respondents did not rely, upon the report of the Air Corps in discharging Galaska. The letter of the Air Corps was not a direction to refuse reinstatement to Galaska. The Air Corps fully recognized that the decision, was one to be made by the respondents, and admittedly the respondents made the decision. Moreover, the decision to discharge Galaska had been made 10 days prior to the Air Corps letter of July 31. On July 21, before knowing the position which the Air Corps might ultimately take, the respond- ents notified, Galaska that he was discharged, falsely stating at that time that it was "the work of the Army Air Corps." In their brief the respondents seek to explain, this action by asserting that the Rules and Regulations of the Bureau of 'Unemployment Compensation re- quired them to give separation notices to all employees separated from their employment for reasons other than lack of work, immediately upon such separation. Not only, did the respondents fail to raise this contention at the hearing-and to furnish proof of such require- ment, but it is apparent that even if true, such requirement is im- material to our inquiry. The respondents did not contend that they were required by these rules to give, or that they had in fact given, separation notices to the employees when they went on strike or when the respondents failed to reinstate the strikers immediately upon the termination of the, strike. Thus it is apparent that the requirement of the separation notices arose because of the discharges; it did not require the discharges. Nor do we think it conclusive that the respondents also discharged four other strikers on July 21 and subsequently reemployed each of them upon receiving notice from the Air Corps that it had found no ;justification for withholding approval for their reinstatement. The respondents had initiated the, investigation solely because these em- ployees had gone on strike. It is apparent from this fact as well as It fair inference from the other anti union activities found above, and we find, that the respondents sought to rid themselves of the striking employees, but since, the Act prohibited a discharge for this reason sought to escape responsibility by securing other bases for the dis- charges. When it became apparent that a refusal to reinstate the other four could not be supported by any reason other than their participation in the strike, they were reinstated. The respondents seized upon the'colorable license provided by the Air Corps, however, as a means of escaping liability for their prior unlawful discharge of Galaska. ' • OHIO CRANKSHAFT, INC. 811 We find that the respondents discharged Galaska on July 21, 1942, because he had engaged in a strike and other concerted activity. Upon the basis of the entire record, we find that by discharging Lewis Boys', Lawrence Frank, and Frank Galaska, the respondents discriminated against them in regard to their, hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing their 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 respondents as set forth in Section III above, occurring in connection with the operations of the respondents de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that-- the respondents have engaged in unfair labor practices within the meaning of the Act, we shall order them to cease and desist therefrom and, in order to effectuate the policies of the Act, to take certain affirmative action designed to dissipate the effects , of the unfair labor practices. We have found that the respondents have dominated and interfered with the administration of the Independent and contributed support to it. Since the effects and consequences of such practices constitute a continuing obstacle to the free exercise by their employees of the rights guaranteed by the Act, we will order that the respondents with- draw all recognition from the Independent as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment; or other conditions of employment, and completely dis establish it as such representative. Since it has been' found that the contract of September 28, 1942,' between the respondents and the In- dependent, which is still in effect, is illegal, we shall order the re- spondents to cease giving effect to said agreement or any extension, renewal, modification, or supplement thereof, or any superseding con- tract which may be in force. However, nothing herein shall be taken to require the respondents to vary those wage, hour, seniority, and other such substantive features of its relations with the employees them- selves, which the respondents established in performance of the in- valid contract with the Independent, or to prejudice the assertion by 812-- -DECIiSIONS OF NATIONAL LABOR RELATIONS BOARD the employees of any legal rights they may have under such instru- ments. We. have found that the respondents discriminated as to the hire and tenure of employment of Lewis Boys, Lawrence Frank, and Frank Galaska because of their membership in and activity on behalf of the Union. In order to effectuate the purposes and policies of the Act, we shall order the respondents to offer Lawrence Frank and'Frank Galaska immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. We shall also order that the respondents make Lawrence-Frank and Frank Galaska-whole for any loss of pay either has suffered by reason of the respondents' discrimination, by payment to Lawrence Frank of a sum of money equal to the amount he normally would have earned as wages from June 22, 1942, the date of his dis- charge, to the date of the respondents' offer of reinstatement, and to Frank Galaska of a sum of money equal to the amount he normally would have earned as wages from June 22, 1942, the date of his dis- charge to the date of the respondents' offer of reemployment, less their respective net earnings during such periods.23 As to Lewis.Boys, we shall order that the respondents, upon application by Boys within forty (40) days after his discharge from the armed forces of the United States, offer him reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall further order that the respondents make Boys whole for any loss of earnings he may have suffered by reason of the respondents' discrimination against him, by payment to him of a sum of mony equal to the amount he would normally have earned as wages during the periods (1) between the date of his discharge and the date of his induction, and (2) between a date five (5) days t after Boys' timely application for reinstatement, and the date of offer of reinstatement by the respondents, less his net earnings during these periods. IV. THE QUESTION CONCERNING REPRESENTATION A statement of the Regional Director, introduced in evidence at the hearing on February 26, 1943, indicates that the Union represents 21 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 respondents, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440 Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L R. B., 311 U S. 7. "; ""OHIO C'R'ANKSHAFT, ' INC: - _ 813 a substantial,- number of:employees' inithe unit alleged to be appro- priate.24 Since the contract now in existence between the Independent and the respondents is illegal, it does not prevent a present determination of representatives. The respondents conceded, and we find, that a question has arisen concerning the representation of employees of the respondents. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE 'We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondents described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow. of commerce. VIII. THE, APPROPRIATE UNIT At the hearing on February 26, 1943, it was stipulated that a unit consisting of all production, maintenance and service employees of .the respondents, exclusive of group leaders, foremen, foreladies, and, other supervisory, employees, office employees, timekeepers, plant- protection employees, salaried employees, and service employees in the Tocco division, constituted an appropriate unit for the purposes of collective bargaining. The parties are in disagreement, however,' on the inclusion within the unit of a number of timekeepers whom the Union asserts work on the production floor with other production workers and are known as production timekeepers and are, thus, dis- tinguishable from other timekeepers who work in the office. The Union contends that these timekeepers should be included and the respondents contend they should" be excluded from the unit. The evidence shows that there is but one category of timekeepers, all of whom are stationed on the production floor and whose duties are to record the time of production employees with particular reference to actual production' time and time during which the machines are not in operation. We -conclude that the ,timekeepers are more closely identified with the clerical employees and should be excluded from the unit. x4 The Regional Director reported that the' Union submitted 929 designations, all bear- ing apparently genuine signatures, of employees on the pay roll of February 14, 1943, which lists appioximately 3,231 persons in the alleged appropriate unit Counsel for the Union stated on the record that in addition to the 929 designations reported in the Regional Director's report, he had in his possession 746 other designations of employees in the alleged appropriate unit. I ,814 ' DECISIONS OF, NATIONAL LABOR , RELATIONS BOARD We find that all production , maintenance and service employees of the respondents , exclusive of group leaders , foremen, foreladies, and other supervisory employees , office employees, timekeepers, plant- protection employees, salaried employees and service employees in the Tocco division , constitute a unit appropriate for the purposes of col- lective bargaining and that such-unit will insure to employees of the respondents the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. Since we have found in Section III, above , that the respondents have dominated and interfered with the administration of the Independ- ent, and have contributed support thereto, we shall make no provision for the designation of the Independent on the ballot. . We shall direct that the employees , of the : respondents within' the appropriate unit who were employed by the respondents during the pay-roll period immediately preceding the date of our Direction of Elections herein, ,including those who ,did not work during said pay- roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls , but excluding those who have since quit or ,been discharged for cause, shall be eligible to vote in the election. Upon the basis 'of the above findings of fact and upon the entire record in . the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile , Aircraft & Agricultural Implement Workers of America (C. I. 0.) and •Crankshaft Independ- ent Union are labor organizations, within the meaning of Section 2 (5) of the Act. 2.,By dominating and interfering with the administration of Crank- shaft Independent Union, and ' contributing support thereto , the re- spondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Lewis Boys, Lawrence Frank, and Frank Galaska, thereby dis- couraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers ofi America (C. I. 0.) the respondents have engaged in and are engaging, in unfair labor practices, within the meaning of Section 8 (3) of the Act. OHIO CRANKSHAFT, INC . 815. 4. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the -Act, the re- spondents have'engaged in and are engaging in unfair labor,practices, within the meaning'of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondents, within the meaning of Section 9 (c) and. Section 2 (6) and (7) of the Act. 7. All production; maintenance and service employees of the re- spondents, exclusive of group leaders,. foremen, foreladies, and other supervisory employees, office employees,, timekeepers, plant-protection employees, salaried employees and service employees in the Tocco divi- sion, constitute a unit appropriate, for the purposes-of collective bar- gaining, within the meaning of Section 9 (b)• of the, National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and .pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor -Relations Board hereby orders that the re- spondents, The Ohio Crankshaft Company, and Ohio Crankshaft, . Inc., Cleveland, Ohio, and their officers, agents, successors, and assigns shall : 1. Cease and desist from:, (a) Dominating or interfering with the administration of Crank- shaft Independent- Union, or dominating or interfering with the formation -or administration of any other labor organization of their employees, and from contributing support to Crankshaft Independent Union or to any other labor organization of their employees; (b) Recognizing Crankshaft Independent Union'as the represen- tative of their employees for - the .purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of employment; (c) Giving effect to the contract of September 29, 1942, between the respondents and the Independent, or any extension, renewal, modi- fication, or supplement thereof, 'or any other contract or agreement between the respondents and.the Independent which may now be in force; (d) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (C. I. 0.) or any other labor organization of employees, by dis- charging employees or in any other manner discriminating, in regard 816 DECISIONS OF NATIONAL -LABOR! RELATIONS BOARD to their hire or tenure -of employment' or any term or condition of employment ; (e) In any other manner interfering with, restraining, or coercing their employees in the 'exercise of the, right to self-organization; to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or ,to engage in con- certed activities for the purposes of collective bargaining or- other- mutual aid or protection, as guaranteed in Section 7 of the Act. 2. 'Take•the:following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Crankshaft Independent Union; ' (b) Offer to Lawrence Frank and Frank Galaska immediate and' full reinstatement to their' former or substantially equivalent posi- tions,.without prejudice to their seniority or other rights and'priv- ileges; and 'notify Lewis Boys by registered mail that upon his discharge from the armed forces of the United States he will be offered reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (c) Make whole Lawrence Frank and, Frank Galaska for any loss 'they may have suffered by reason of the respondents' discrimination, by payment to each' of them of a sum of money equal to that which he would'normally have'earned as wages from the date of the re- spondents' discrimination against him to the date of such offer of reinstatement, less his net earnings during said period;- (d) Upon application by Lewis Boys, within forty (40) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (e) Make whole Lewis Boys for any loss suffered by reason of the respondents' discrimination Against him, by payment to him of a sum of money' equal to the-amount he would normally have earned as wages during the periods (1) between the date of his discharge and the date of his induction, and (2) between a date five .(5) days after Boys' timely application for reinstatement and the date of the offer of reinstatement by the respondents, less his, net earnings during those periods; (f) Post immediately in coispicuous places throughout their plants in Cleveland, Ohio, and maintain for a'period of at least sixty (60) consecutive, days from the date of posting, notices to their employees stating` (1) that tile respondents will not engage in the conduct from which they are ordered 'to cease and desist in paragraphs .1 (a), (b), (c), (d),• and (e) of this Order; (2) that the respondents will take OHIO CRANKSHAFT, INC. 817 the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; and (3) that the respondents' employees are free to become or remain members of International Union, United Automobile, Aircraft & Agricultural Implement Workers of Amer- ica' (C. 1. 0:) and that they will not discriminate against any employee because of membership in or activity on behalf of said labor organiza- tions ; (g) Notify the Regional Director for the Eighth Region (Cleve- land, Ohio) in writing within ten , (10) , days from the date of this Order what steps the respondents have, taken to comply herewith. DIRECTION OF ELECTION By virtue of and pursuant. to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Ohio Crank- shaft Company and Ohio Crankshaft Inc., Cleveland,, Ohio, an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty (30)"davs,from,tlie date of this,Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees of The Ohio Crankshaft Com- pany and Ohio -Crankshaft Inc., within the unit found appropriate in Section VIII, above, who were employed during the pay-roll period immediately preceding the date of this Direction including employees who did not work during said pay-roll period because they, were ill or on vacation or temporarily laid off and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. MR. JOHN M., HOUSTON took no part in the consideration of the above Decision, Order, and Direction of Election.