Interstate Engineering Corp.

In the Matter of INTERSTATE ENGINEERING CORPORATION and DONALD 1. SLOAN AND JOHN H. BORNIcluE In the Matter Of INTERSTATE ENGINEERING CORPORATION and GEORGE HAGUE Cases Nos. 21-C-3100 and 21-C-3101, respectively.Decided April 26, 1949 DECISION AND ORDER On July 27, 1948, Trial Examiner John H. Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices,' and recommending that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report attached hereto. There- after, the General Counsel filed exceptions to the Intermediate Re- port and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief filed by the General Counsel, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except insofar as they are inconsistent with our findings, conclusions, and order, hereinafter set forth. 1. We do not agree with the Trial Examiner that the Respondent has not discriminated against Sloan and Bornicke within the meaning of Section 8 (a) (3) of the Act, as amended. The record reveals the following sequence of events : In May 1947, toward the end of a contract between the Respondent and the Intervenor, and also in June 1947, a period when no contract was,in effect, Sloan and Bornicke were active in circulating a petition 1 Section 8 (1) and 8 (3) of the National Labor Relations Act, which the Trial Examiner found was not violated , are continued in Section 8 (a) (1) and 8 (a) (3) of the Act, as amended, except that the proviso to- the former Section 8 (3) has been modified by the Act, as amended . However , this modification , which substantially restricts the scope and protection of the original proviso , is not applicable to this case. 83 N. L. R. B., No. 16:, . 126 INTERSTATE ENGINEERING CORPORATION 127 for an independent union. When this petition had been signed by 47 employees, it was presented to the Respondent, which, faced with rival claimants, filed an employer petition with the Board on June 6. On June 7, the Intervenor voted to strike and established a picket line around the plant. For several days thereafter, the Intervenor maintained the picket line and Sloan and 6 other employees crossed it. On June 16, a request to withdraw the independent petition, signed by Sloan, Bornicke, and Houchen, was presented to the Re- spondent, which then withdrew its representation petition. The Re- spondent then negotiated a new contract with the Intervenor, effective June 30. This contract contained, as did the prior one, union-security provisions which are set out fully in the Intermediate Report. Thereafter, on July 16, shortly after the new contract had become effective, the Intervenor requested in writing the discharge of Sloan, Bornicke, and Kennedy,2 pursuant to the terms of the second contract, because they were no longer in good standing with the Intervenor. The Respondent wrote to the Intervenor for the reasons for,the expul- sions, and was informed, by telephone, only that the expulsions were regular under the Intervenor's constitution. Immediately thereafter, on July 17, the Respondent discharged these employees. At the same time it sent a letter to the Board, detailed in the Intermediate Report, in which it questioned the legality of its action as to Sloan and Bornicke, since they had been actively involved in the circulation of the independent union petition. Shortly thereafter, the Intervenor informed the Respondent, again by telephone, that Sloan had been expelled for crossing the picket line, and that Bornicke had been ousted for making derogatory remarks about one of its officers. The crucial issues in the discharge of these two employees, which occurred before the effective date of the amended Act are : (1) whether the activity of Sloan and Bornicke in connection with the rival petition at the plant, toward the end of the first union-security contract between the Intervenor and the Respondent and during the interval before the second union-shop contract, was the reason for their expulsion from the Intervenor, and (2) if so, whether the Re- spondent was chargeable with knowledge thereof when it complied with the Intervenor's request and discharged them pursuant to the second contract. Unlike the Trial Examiner, we are satisfied that both issues must be answered in the affirmative rather than in the negative. As to the first issue, the Intervenor asserts that Sloan was expelled because he crossed the picket line established by the Intervenor at the Respondent's plant early in June 1947, and Bornicke because he had made derogatory remarks about one of its officers. In support 2 Kennedy's discharge is not involved in this proceeding . Although a charge as to him was filed, the General Counsel refused to issue a complaint thereon. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its contention as to Sloan, the Intervenor states that all seven of the employees who crossed the picket line were expelled, while those employees who only signed the petition suffered no punishment-' We do not view this reason as dispositive of the issue. In the first place, the cases of the other employees are not now before us and afford no basis for comparison 4 Moreover, we find no legal ground for concluding that this argument eliminates circulation of the peti- tion as an operative factor in the Intervenor's action. Indeed, that other reasons may have operated in the case of Sloan is suggested by the fact that Bornicke was allegedly expelled for reasons uncon- nected with the crossing of the picket line. Nor do we find credible the Intervenor's allegation that it could not discover the ringleaders of the rival movement. Shortly before the events herein, the Intervenor had been engaged in a factional fight, in'which Bornicke had led a dissident group. We are satisfied, and we find, that such dissension alerted the Intervenor for signs of further revolt. That the activities of Sloan and Bornicke in connection with the petition were considerable is demonstrated by the fact that they obtained the signatures of about 47 out of a total of 250 employees. In fact, the Intervenor concedes that it knew of the petition, while at the same time denying that it could find out who was responsible for circulating it. This denial must, however, be weighed against the Intervenor's admitted success in discovering that Bornicke had made derogatory statements about one of its officers, an activity which was certainly of lesser moment to the Intervenor. This denial must also be weighed in the light of the fact that as a result of Sloan's and Bornicke's activities, the Intervenor became involved in a Board rep-' resentation proceeding, and that it was only after the petition was withdrawn by Sloan, Bornicke, and Houchen that the Intervenor again found itself in a position to conclude a union-security contract with the Respondent. Significantly, too, when the Respondent, upon re- ceipt of the Intervenor's request to discharge Sloan and Bornicke, in- 'quired as to the reason for the expulsions, the Intervenor answered merely that the expulsions were regular under its constitution, and it was only some time later that the Intervenor furnished the Respond- ent with its reasons, refusing, however, at any time to put them in writing. Unlike our dissenting colleagues, we perceive nothing a In this connection, the Trial Examiner points out that Houchen , "apparently one of the instigators of the petition ," was not expelled. The record does not support the finding that Houchen was active in circulating the independent petition The record establishes, and we hereby find, only that Sloan , Bornicke, and he signed the request to withdraw the petition. 4 There is thus no warrant for the conclusion of our dissenting colleagues that the uncontroverted evidence at the hearing shows that the Intervenor expelled without dis- crimination all seven employees who crossed the picket line. INTERSTATE ENGINEERING CORPORATION 129 "novel" or "illogical" about inferring, as we do, that the Intervenor knew of Bornicke's and Sloan's connection with circulation of the petition. It is incredible to us that under the circumstances set forth above, the Intervenor could have been unaware of the identity of the ringleaders of the rival movement. And when we note that it was aware of so minor a matter as Bornicke's defamatory remarks, we are confirmed in our conclusion that the Intervenor's bland confession of ignorance is completely contrary to the realities of industrial life. Under all these circumstances, including the small size of the Re- spondent's plant, the considerable activity of Sloan and Bornicke, the impact of such activity upon the Intervenor, as shown by the incur- sions upon its membership and the involvement in a Board representa- tion proceeding, we find, contrary to the Trial Examiner, that Sloan's and Bornicke's dual unionism in circulating the rival petition came to the attention of the Intervenor and was an operative factor in their expulsion from the Intervenor. Nor do we accept the Trial Examiner's further finding that the Respondent did not know the reasons for the Intervenor's expulsion of Sloan and Bornicke. We are persuaded, and we find, that the Re- spondent's letter to the Board, written on the very day when it dis- charged Sloan and Bornicke, adequately establishes such knowledge. Sufficient in this regard are Respondent's assertion therein that it knew of Sloan's and Bornicke's activity'in circulating the petition, and its comment that "we are not at all certain that these discharges may not be unfair labor practices." Moreover, even assuming, as did the Trial Examiner, that the letter is sufficient only to show that the Respondent was suspicious of the Intervenor's motive, we do not find, as did the Trial Examiner, that the Respondent made a bona fide 5 effort to deter- mine the true reasons for the expulsions. Thus, when Sloan and Bornicke were discharged, the Respondent was merely told that their expulsion was regular under the Intervenor's constitution. Such an answer was not at all responsive to the Respondent's query. Yet, the Respondent immediately discharged Sloan and Bornicke, telling them that their only recourse was to the processes of the Board. Such conduct convinces us that the Respondent did not pause to evaluate all relevant evidence, but was primarily concerned with avoiding trouble with the Intervenors We therefore find, contrary to the Trial Examiner, that the Respondent is chargeable with knowledge of the Intervenor's true reason for expelling Sloan and Bornicke. B Matter of Colgate -Palmolive-Peet Company, 70 N. L. R B. 1202 ; Matter of Diamond T Motor Company, 64 N. L R B. 1225. We note in this connection that under the June 30 , 1947, contract, the Intervenor obligated itself, in a case such as this, to indemnify the Respondent for any loss which the Respondent might incur. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that Sloan and Bornicke were expelled by the Inter- venor because of dual union activity at an appropriate time, viz- toward the end of the first contract term and during the period when no contract was in effect. We have found further that the Respondent was aware of this. Under these circumstances, the June 30, 1947, con- tract affords no defense to this otherwise unlawful discrimination? We therefore find that, by discharging Donald I. Sloan and John H. Bornicke on July 17, 1947, the Respondent discriminated in regard to their hire and tenure of employment, thereby discouraging member- ship in the Independent Employees Organization, and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act.e 2. We agree with the Trial Examiner that the discharge of George Hague was not violative of the Act. However, we limit our agreement .to the finding that, under the circumstances, the Respondent neither knew, nor had reason to suspect, that there was improper motivation in the Intervenor's request that Hague be discharged. - THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of the Respondent described in Section I of the Intermediate Report, 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 thereof. THE REMEDY Having found that the Respondent has engaged in unfair labor prac- tices, we shall order it to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act, as amended. We have found that the Respondent discriminated in regard to the hire and tenure of employment of Donald I. Sloan and John H. Bornicke. In order to effectuate the purposes and policies of the Act, as amended, we shall order that the Respondent offer to Donald I. Sloan immediate and full reinstatement to his former or a substantially equi- valent position,9 without prejudice to his seniority and other rights * Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587, 46 N. L. R. B. 1040; Matter of Fajardo Development Company, 76 N. L. R. B. 956 ; Cf. Colonic Fibre v. N. L. R. B., 163 F. ( 2d) 65 (C. A. 2). 8 Unlike the Trial Examiner, we therefore find it unnecessary to pass upon other theories advanced by the General Counsel as to why these discharges are violative of the Act. ' In accordance with the Board 's consistent interpretation of the term, the expression "former or substantially equivalent position," is intended to mean "former position wherever possible, but if such position is no longer in existence , then to a substantially equivalent position." See Matter of The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. .-INTERSTATE ENGINEERING- CORPORATION 131 and privileges, and make him whole for any loss of pay he_ may have suffered by reason of the discrimination by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period from the date of the discrimination against him to the date of the offer of the reinstatement, less his net earnings 10 dur- ing such period. In accordance with our practice the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay to which Donald 1. Sloan is entitled, since the Trial Examiner did not recommend rein- statement of Donald I. Sloan or an award of back pay to him. Special circumstances appear, however, in the case of John H. Bornicke. The record shows that he became ill some time after his discharge and that he died before the instant hearing. As to him, it will be ordered that the Respondent make whole his personal representative for any loss of wages during the period from the date of his discharge to the date when he became physically unable to work. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONS OF LAW 1. District Lodge 720, International Association of Machinists, and Independent Employees Organization, are labor organizations within the meaning of Section 2 (5) of the Act, as amended. 2. By discriminating in regard to the hire and tenure of employment of Donald I. Sloan and John H. Bornicke, and each of them, thereby discouraging membership in Independent Employees Organization, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (3) of the Act, as amended. 8. By said conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, as amended, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, as amended. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act, as amended. 5. By discharging George Hague, the Respondent has not engaged in unfair labor practices. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 10 See Matter of Cro88ett Lumber Co., 8 N. L. R. B. 440, 491-8. 132 DECISIONS', OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Interstate Engi- neering Corporation, El Segundo, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - '(a) Discouraging membership in or activity on behalf of any , labor organization of its employees, directed towards designation of a bargaining representative at an appropriate time, by in any manner discriminating in regard to the hire and tenure of employment, or the terms or conditions of employment, of its employees; _(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative- action, which the Board finds will effectuate the policies of the Act : (a) Offer Donald I. Sloan immediate and full reemployment in his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Donald I. Sloan and the personal representative of John H. Bornicke, for any loss of pay Sloan and Bornicke respec- tively may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equal to an amount determined in the manner set forth in the section of this Decision and Order entitled, "The Remedy"; (c) Post immediately in conspicuous places at its offices in El Segundo, California, copies of the notice attached hereto marked `¶'Appendix A." 11 Copies of such notice, to be furnished by the Re- gional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representative, be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it' for at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Twenty-first Region (Los Angeles, California) in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of George Hague. !I'll,Iii the event that this Order is enforced by a decree of the United States Court of Appeals, there 'shall be inserted before the words . "A DECISION AND ORDER ," the words "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." ,'INTERSTATE ENGINEERING CORPORATION 133 MEMBERS REYNOLDS and GRAY, dissenting in part : We 'agree with the majority opinion that the- complaint should be dismissed as to Hague. However, we would also dismiss the com- plaint as to Sloan and Bornicke. Under the Rutland Court theory, relied upon by our colleagues in finding that the Respondent violated the Act, the evidence must first 'establish that the Intervenor expelled Sloan and Bornicke from its ranks for dual unionism. In our opinion, the evidence in this case does not sustain that burden. The record discloses that at the time the Intervenor requested the discharge of Sloan and Bornicke, it stated that the expulsions of Sloan and Bornicke were "regular" under the union constitution. When pressed by the Respondent for specification of the reasons for the expulsions, the Intervenor asserted that Sloan was expelled for crossing the picket line, and that Bornicke was expelled for making defamatory remarks about the Intervenor's officers. At the hearing, in testimony which was uncontradicted and otherwise unimpeached, the Intervenor reaffirmed the specific reasons it had asserted as the bases for the expulsions of Sloan and Bornicke. To dispel intimations that dual unionism was an operative reason in the expulsions, uncontroverted evidence at the hearing shows that the Intervenor expelled without trace of discrimination all seven of its members who, like Sloan, crossed the picket line. Our colleagues perfunctorily discount this evidence because the cases of all seven of those individuals are not now before the Board. Were we regularly to ignore such evidence on that ground, we would be forced to aban- don that long line of cases wherein the Board has compared the relative treatment of union as against non-union employees (the latter rarely being before the Board), as a significant factor in determin- ing motive,12 and we would, in effect, be trying these cases in vacuoo: 3 As additional proof that dual unionism did not influence the ex- pulsions of Sloan and Bornicke, the Intervenor's president, while forthrightly admitting knowledge of the circulation of the petition, testified, again without contradiction or impeachment, that he did not at any time know who instigated the circulation of the petition. We cannot subscribe to the novel but illogical theory employed by the 12 The disparate treatment of union members was evidence of discriminatory motive in the following cases : Matter of Granite State Machine Company, Inc., 80 N. L. R B. 79; Matter of Morrison Turning Co., Inc, 77 N. L. R. B. 670; Matter of Harold W. Baker Company, 71 N. L. R. B 44, 59; Matter of Brown's Tie it Lumber Company, 66 N L R B. 637, 639; Matter of Montag Bros, Inc, 51 N L. R B 366, and Matter of Ford Motor Company, 23 N. L. R. B. 342, 347. The impartial treatment of employees without regard to union affiliation has been considered as evidence of the lack of discriminatory motive. Matter of The Northwest Glove Co., Inc., 74 N. L. R. B. 1697, 1701-2. 78 Cf. Matter of Broum's Tie it Lumber Company, supra. 844340-50-vol. 83-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority to discredit this testimony, namely, that since the Inter- venor was aware of Bornicke's defamatory remarks, however unre- lated they may have been to the circulation.of the petition, the In- tervenor must as a consequence be presumed to have knowledge of Bornicke's association with, and other incidents pertaining to, the circulation of the petition. In view of the existence of the afore-mentioned affirmative evidence in support of the Intervenor's contention and in the absence of a scintilla of direct evidence to the contrary, we are of the opinion that the preponderance of the evidence in this case does not sustain a finding that Sloan and Bornicke were expelled from the Intervenor for dual union activities. We would therefore dismiss the complaint in its entirety. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in or activity on behalf of any labor organization of our employees, directed towards designation of a bargaining representative at an appropriate time, by in any manner discriminating in regard to their hire and tenure of employment, or terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed to them by the National Labor Relations Act. WE wII.L offer to the employee named below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. Donald I. Sloan WE wILL also make whole the estate of John H. Bornicke for any loss of pay suffered as a result of the discrimination against him. INTERSTATE ENGINEERING CORPORATION, Employer. By ------------------------------------------ (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced or covered by any other material. INTERSTATE ENGINEERING CORPORATION 135 INTERMEDIATE REPORT Mr. Philip Licari, for the General Counsel. Guthrie, Darling & Shattuck, by Mr. Milo V. Olson, of Los Angeles, Calif., for the Respondent. Mr. E. R. White and Mr. Edward M. Skagen, of Los Angeles, Calif., for the Intervenor. STATEMENT OF THE CASE Upon charges duly filed by Donald I. Sloan, John H. Bornicke, and George Hague, individuals, and in accordance with an order of the General Counsel of the National Labor Relations Board, herein called the General Counsel,' dated May 21, 1948, consolidating the two cases, the General Counsel, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued a complaint dated May 21, 1948, against Interstate Engineering 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) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act, as amended by the Labor Management Relations Act, 1947, Public Law 101, 80th Congress 1st Sess., Chapter 120, herein called the amended Act. Copies of the order consolidating the cases, the com- plaint, the charges, and notice of hearing were duly served upon the Respondent and the individual complainants.2 With respect to the unfair labor practices, the complaint alleged in substance that the Respondent : (1) on or about July 17, 1947, discharged Donald I. Sloan and John H. Bornicke and failed and refused to reinstate them for the reason that they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection; and (2) on or about August 7, 1947, discharged George Hague and failed and refused to rein- state him for the reason of his non-membership in a labor organization. The complaint further alleged that by the foregoing conduct the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act and the same Section of the amended Act. On or about June 1, 1948, the Respondent filed an answer wherein it did not deny the jurisdictional allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held at Los Angeles, California, on June 16 and 17, 1948, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. At the start of the hearing, District Lodge 720, International Association of Machinists, and the Research Department, Inter- national Association of Machinists, herein collectively called the Intervenor, moved to intervene in the proceeding. The motion was granted over the objection of the General Counsel. The General Counsel and the Respondent were repre- sented by counsel and the Intervenor by its representatives. All parties par- ticipated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the General Counsel's case the Respondent moved to dismiss the 'This designation also will be used to refer to the attorney who represented the Gen- eral Counsel at the hearing. The National Labor Relations Board will be referred to herein as the Board. 2 The evidence discloses that Bornicke died at some undisclosed time prior to the date of the hearing herein. 136 DECISIONS-' OF NATIONAL LABOR RELATIONS BOARD complaint for lack of proof. Ruling on the motion was reserved. At the close of the whole case, the Respondent renewed its motion to dismiss and the Inter- venor also moved .to dismiss the complaint for lack of proof. 'Ruling on the motions was reserved. The motions to dismiss are disposed of as hereinafter indicated. The General Counsel, the Respondent, and the Intervenor presented oral argument before the undersigned at the close of the hearing. • All parties were affored an opportunity to file briefs or proposed findings of fact and con- clusions of law, or both. None of the parties has filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation, having its principal office and place of business in El Segundo, County of Los Angeles, California, where it is engaged in the manufacture, sale, and distribution of vacuum cleaners, electric water coolers, water softeners, and precision instruments. During 1947, the Respondent purchased materials valued at approximately $500,000, of which 50 percent was shipped from points outside the State of California. During the same pe .iod, the Respondent sold products valued at approximately $1,000,000, of which 50 percent was shipped to customers located outside the State of California. The undersigned finds that the Respondent is engaged in commerce within the meaning of the Act and the amended Act. II. THE LABOR ORGANIZATION INVOLVED . District Lodge 720, International Association of Machinists, is a labor organi- zation which admits to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The background On April 30, 1946, the Respondent and the Intervenor entered into a col- lective bargaining contract for the term of 1 year. The contract contained a maintenance of membership clause and, as a condition of employment, required that new employees hired within the bargaining unit become members of the Intervenor within 30 days after the date of employment. The Respondent and the Intervenor were unable to negotiate a new contract before April 30, 1947, the expiration date of the 1946 contract, but it was agreed to extend the contract until May 31, 1947. The contract expired on that date, as it was not extended further and the parties were still unable to agree upon a new contract. About the middle of May, Donald 1. Sloan and John H. Bornicke started to circulate a petition among the employees in the plant. The petition requested the Respondent to recognize the employees who signed it as bargaining agent, and contained about 47 signatures when presented to the Respondent by Sloan on June 4. On about June 6 the Respondent filed with the Board a petition for certification, naming the Intervenor and "Independent Employees organization" as the labor organizations claiming to represent a,majority of employees in the ,unit. On the night of June 6 the intervenor held a meeting at which a• strike vote was taken. The members present voted not to strike, and the meeting was adjourned until the following morning. On June 7 at about 9 a: m. the Respondent INTERSTATE ENGINEERING CORPORATION ' 137 made an announcement over its loud-speaker system to the effect that all union officers would be given passes to attend a meeting of the Intervenor scheduled for 10 a. in., but that any other employees who left the plant would be subject to immediate termination. After this announcement approximately 79 employees -walked out of the plant. Starting at about 11 a. in. on that same day the Intervenor established a picket line at the Respondent's plant. It appears that the Respondent thereafter attempted to operate the plant with employees who were not in favor of the strike' By written notice, dated June 16, 1947, and signed by employees Sloan, Bornicke, .and H. R. Houchen, the Respondent was requested to "withdraw" the petition heretofore mentioned. Subsequently the Respondent notified the Board to this .effect. The Respondent and the Intervenor finally negotiated a new collective bargain- ing contract, dated June 30, 1947. This contract contains in part the following : All employees covered by this Agreement, who are members in good standing of the Union as of the effective date of this Agreement and employees who may subsequently become members of the Union, must continue as members in good standing in the Union for the duration of this Agreement as a condi- tion of continued employment. New employees hired within the bargaining unit shall within thirty (30) days after date of hire become and remain members of the Union in good standing as a condition of continued employment. The preceding paragraph shall apply to present employees, not in the bargaining unit, who may subsequently be transferred to departments and/or classifications within the bargaining unit. It is mutually agreed that employees within the bargaining unit, who are not members of the Union (excluding new hires with less than thirty (30) days service), and employees within the bargaining unit in the armed forces of the United States who are entitled to reemployment under the provisions of Section 11 shall not as a condition of employment be required to become members of the Union. B. The discharges of Sloan, Bornicke, and Hague The Intervenor sent the following letter, dated July 16, 1947, to the Re- spondent:' The following employes of the Interstate Engineering Corporation, Donald I. Sloan, John H. Bornicke, Harry R. Kennedy, who were members of this organization in good standing on the effective date of our current Agreement have subsequent to that date lost their membership in good standing and are now no longer members of the International Association of Machinists. It is requested that company comply with the provisions of Section 8- (Union Membership) of our current Agreement and immediately terminate the above mentioned employes. ' On Monday , June 9, about seven employees , including Sloan, entered the plant through the picket line. ' Sloan testified that at some time before his discharge he received a registered letter from the Intervenor, notifying him that he was to be tried for "violation of the Constitu- tion"; that also by registered letter he requested of the Intervenor information concerning the charges against him ; and that the Intervenor ignored his request. Witnesses for the Intervenor testified without contradiction to the effect that Sloan and Kennedy were tried and expelled from membership for crossing a picket line while an authorized strike was in progress ; and that Bornicke was tried and expelled for "making false and malicious state- ments" against officers of the Intervenor. 138 DECISIONS. OF NATIONAL LABOR, RELATIONS BOARD In compliance with the above request of the Intervenor, the Respondent dis- charged both Sloan and Bornicke on July 17. Also on July 17, the Respondent sent the following letter to the Board : Under date of July 16, we received a request from Aeronautical Industrial District Lodge No. 720 that Messrs. John Bornicke, Donald Sloan and H. R. Kennedy, three employees of this Corporation, be discharged under the pro- visions of Section 8 of the agreement between the Company and the Union, copy of which is attached hereto. Under date of July 16, we addressed letter to the Union, requesting they inform us as to the reason for the request for discharge of these men, copy of which was sent to you ; aside from telephonic advice as to the purported reasons for the request for discharge which the Union stated was in ac- cordance with the constitution of the I. A. M., we have been unable to obtain written statement from the Union in answer to our letter. We are complying with the request of the Union and discharging the three employees above mentioned, but frankly, we are not at all certain that in at least two cases these discharges may not be unfair labor practices on the part of the Company under the provisions of Section 7 of the National Labor Relations Act. This statement is made foi the reason that in the case of Messrs. Bornicke and Sloan, these two ' employees were the ringleaders in the circulation of a petition for representation by an independent unit at our plant, which petition was filed with your Board and subsequently with- drawn at the request of the employees responsible for the circulation. We have suggested to the employees that they present their case to your Board for a final determination as to whether or not the discharge, while legal under the provisions of our agreement with the Union, is legal under the provisions of the National Labor Relations Act. At about this sane time or shortly thereafter, E. Roy Blow, business representa- tive of the Intervenor, notified the Respondent during a telephone conversation that Sloan and Kennedy were expelled from membership by the Intervenor for crossing the picket line and that Bornicke was expelled for making derogatory statements concerning officers of the Intervenor. Blow refused Respondent's request to confirm this information in writing. Shortly after his discharge, Sloan returned to Respondent's plant and applied for reemployment. The Respondent refused to reemploy him, stating that it did not want any further trouble with the Intervenor. Hague was employed by the Respondent on June 2, 1947. He worked at the plant and crossed the-picket line while the strike commencing on June 7 was in progress. Hague applied for membership with the Intervenor but his applica- tion was rejected for the reason that he had crossed the picket line and worked .in the plant during the strike. On August 6, 1947, the Intervenor sent the Respon- .dent the following letter : Mr. George H. Hague has failed to comply with the provisions of the second paragraph of Section 8 of our current Agreement. It is therefore requested that Company comply with the provisions of Section 8 and im- mediate terminate Mr. Hague. In compliance with the Intervenor's request, the Respondent discharged Hague .on August 7, 1947. About 10 days after his discharge , Hague applied to the Respondent for reemployment, but was refused. The•Respondent sent a letter, dated August 13, 1947, to the Board, which stated in part as follows : ' ' ' - INTERSTATE ENGINEERING CORPORATION 139 On July 16th, 1947 we received a letter from the Union, copy of which is attached, requesting us to terminate Messrs. Sloan, Bornicke and Kennedy. On receipt of this request we addressed a letter to the Union, copy attached, in which we made inquiry as to the reason for their request. On receipt of our letter Mr. E. Roy Blow, Business Representative Lodge 720 phoned Mr. Lay, Vice President of our Company, and informed him that Messrs. Sloan and Kennedy had been expelled from the Union for crossing the picket line during the strike at our plant and Mr. Bornicke had been expelled for making statements derogatory to the Union officers. Mr. Blow refused to confirm his telephonic advice in writing. To comply with the provisions of Section 8 of the attached agreement with the Union we terminated the three employees on July 17th, and on the Same day wrote to Mr. LeBaron and advised him of the action taken and questioned its legality. Our letter to Mr. LeBaron was written because (1) the employees had informed us that they had been tried and expelled from the Union without having been advised as to the nature of the charges which had been brought against them, and (2) because Messrs. Sloan and Bornicke were instru- mental in circulating a petition which was presented to the Company on June 4th, which petition was the basis for our request to your Board for assistance in determining the bargaining agent for our employees. The petition was subsequently withdrawn (June 16th) by Messrs. Sloan, Bornicke and others who had been responsible for its circulation. For your further information the agreement with the Union in effect last year was to have expired April 30, 1947, but by mutual agreement was extended to May 31, 1947, when it terminated. From this latter date until June 30th no agree- ment existed. Mr. Kennedy had no connection with the circulation of the petition and his name does not appear as one of the signers. He did cross the picket line once. On August 6, 1947, we received a letter from the Union, copy attached, in which we were requested to terminate Mr. Hague for failure to comply with the provisions of Section 8 of the agreement. For your information Mr. Hague was employed on June 2, 1947 and terminated August 7, 1947. Conclusions The General Counsel contends that Sloan and Bornicke were in fact expelled from membership by the Intervenor because they were the instigators of the petition for recognition of a rival labor organization, and that the Respondent had knowledge of that fact, actual or constructive, as evidenced by its communi- cations to the Board. The General Counsel argues in this connection that under the theory of the Rutland Court case and other decisions of the Board,' the dis- charges were discriminatory and were not protected by the proviso to Section 8 (3) of the Act. From these decisions of the Board it is clear that the discharges in the instant case would constitute unfair labor practices if the employees in question had been expelled by the Intervenor because of dual unionism and the Respondent had knowledge of that fact, since the undisputed evidence shows that the rival activity not only was timely in relation to the expiration date of the 1946 contract, but also actually occurred before the execution of the new agreement under which they were denied employment. This contention, how- ever, is rejected. Assuming that the activities of Sloan and Bornicke in connec- 6 Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587 , 46 N. L. R. B. 1040 ; Matter of Colgate-Palmolive-Peet Company, 70 N. L. R. B. 1202; Matter of Public Service Corpora- tion of New Jersey, et at., 77 N. L. R. B. 153. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with the petition motivated the Intervenor in the expulsions, nevertheless in the undersigned's opinion the.General Counsel failed to prove that the Re- spondent had knowledge of such alleged fact. Admittedly, the Respondent en- tertained suspicions of the Intervenor's motives, as shown by the above com- munications to the Board ; but under all the .circumstances, in the undersigned's opinion, this is not enough to hold that the Respondent had constructive knowl- edge. As for any duty incumbent upon the Respondent in view of its suspicions, it appears that the Respondent made a bona fide effort to determine whether or not the Intervenor was acting in reprisal against Sloan and Bornicke. More- over, the evidence affirmatively shows that Sloan was expelled by the Intervenor for crossing the picket line and that Bornicke was expelled for his alleged deroga- tory statements. There is no direct evidence in the case that the Intervenor at any time was aware that Sloan and Bornicke were connected with the petition. In this respect it is noteworthy that the Intervenor did not request the discharge of Houchen, apparently one of the instigators of the petition, but did request the discharge of Kennedy, who did not sign the petition but did cross the picket line during the strike. The General Counsel further contends that the crossing of the picket line by Sloan and the statements of Bornicke were rival union activities engaged in at an 'appropriate time and were therefore protected. This contention is also rejected. There is no conclusive showing that the Respondent Chad knowledge that by such acts Sloan and Bornicke were campaigning against the Intervenor. Especially is this so in the case of Bornicke, since it does not appear that the Respondent at any time learned the nature of his alleged statements or when they were made. The crossing of a picket line might possibly be construed as a rival union activity, but in the undersigned's opinion this theory relies unduly upon conjecture. There is no question as to the validity of the form of union-shop provision in the contract, set forth above, but the General Counsel claims that its appli- cation was illegal in that it was applied retroactively. If the union-shop provision had been applied retroactively so as to penalize employees for cam- paigning against the contracting organization and on behalf of a rival before execution of the agreement, the General Counsel's contention unquestionably would be the law .6 However, the undersigned does not believe, as indicated above, that under the circumstances of this case the facts warrant a finding of rival union activity in the crossing of the picket line. In the case of Hague, the undisputed facts show that he was employed on June 2,1947; that his application for membership was denied by the Intervenor ; that he was not a member of the Intervenor at any time from June 2 through August 7, the date of his discharge ; and that he was discharged by the Respondent at the request of the Intervenor in accordance with the provisions of the contract. Hague's case is almost identical to Sloan's, since they both failed to become or remain members in good standing of the Intervenor by reason of their crossing the picket line. However, Hague's case is weaker. Consider- ing the date of his employment, the Respondent had no reason to suspect that the request to discharge was in any way connected with dual union or anti- Intervenor activity. Sol far as the Respondent knew, the only reason for the request was the fact that he had failed to become a member of Intervenor within the time specified in the contract. Since the contract became effective on June e Wallace Corporation y. N. L. R. B.,.323 U. S. 248; Colonie Fibre Company v. N. L. R. B., 163 F. (2d) 65 (C. A. 2) ; Matter of Fajardo Development Company, 76 N. L. R. B. 956. INTERSTATE ENGINEERING CORPORATION 141 30, Hague had less than 30 days of service and therefore under the terms of the contract was required to become a member as a condition of employment ° Accordingly, it is found that the Respondent did not commit unfair labor practices by discharging Sloan, Bornicke, and Hague. CONcLusIONs OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act and the same Section of the amended Act. 2. By discharging Donald I. Sloan, John H. Bornicke, and George Hague, the Respondent has not engaged in unfair labor practices. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the complaint against the Respondent, Interstate Engineering Corporation, be dismissed in its entirety. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Inter- mediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, 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 from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. JOHN H. EAnIE, Trial Examiner. Dated July 27, 1948. * Although the issue is not present in the case, it should be noted that the contract was negotiated almost 2 months before the effective date of the Amended Act.