Stewart-Warner Corp.

STEWART-WARNER CORPORATION 607 3. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Paul Baker, Miriam Baker, Donna Bryson, Evelyn Bryson and Zelpha McNutt, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by announcing a forthcoming general wage increase for its employees in late August or early September 1950, nor by permitting and encouraging , the distribution for signa- tures of an antiunion petition in its plant, nor by its discharge of Paul Baker on August 28, 1950. [Recommended Order omitted from publication in this volume.] STEWART- WARNER CORPORATION and JOHN KELLIHER, FRANCES' MIHELICH AND MARION E. WHITE STEWART- WARNER CORPORATION and INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS, CIO. Cases Nos. 13-CA-306 and 13-CA-437. May 17,1<951 Decision and Order On June 7, 1950, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of these allegations. Thereafter, the General Counsel, the charging indi- viduals, the IUE, and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs, and the IBEW filed a brief. On January 9, 1951, the Board heard oral argument at Washington, D. C., in which the General Counsel, the charging individuals, the IUE, and the Respondent participated. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' 1 Respondent has excepted to the Trial Examiner' s failure to permit it to question certain witnesses with respect to their alleged membership in the Communist Party As the Trial Examiner stated that he would have credited these witnesses even assuming each one was a Communist, and because we see no reason in the record for disturbing his credibility finding , we find that no prejudicial error was committed We do not, however, adopt the Trial Examiner 's discussion with respect to "The Communist `issue'," finding It unnecessary to pass upon it. 94 NLRB No. 85. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the Intermediate Report, the exceptions and briefs, the oral arguments of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications set forth herein? 1. The Respondent contends that the complaint should be dis- missed because Kelliher, Mihelich, and White, although purporting to file the charges in Case No. 13-CA-306 as individuals, actually filed them as agents for the then noncomplying UE. Because of our dispo- sition of the issues herein in the manner set forth below, we find it unnecessary to pass upon this contention. 2. We look, rather, to the charges of unfair labor practices filed by the complying IUE in Case No. 13-CA-427. We agree with the Trial Examiner that the Respondent violated Section 8 (a) (2) of the Act by supporting the IBEW. We base this finding only upon those activities of Respondent; as set forth in the Intermediate Report, that occurred on and after July 3, 1949; i. e., those activities falling within 6 months of January 3, 1950, when a copy of the charge filed by the IUE was served on the Respondent. These activities included a threat of disciplinary action to an employee to induce her to sign the IBEW petition, a threat to another employee of loss of job security if she did not vote for the IBEW, the denial to UE adherents of the right previously granted the IBEW to circulate petitions, the post- ing of a notice of an IBEW meeting, the recall of a laid-off employee for the purpose of assisting the IBEW, and the grant of recognition to the IBEW despite the Board's refusal to certify that organization. These activities by themselves, as well as when viewed against the background of events occurring before July 3, 1949, as fully detailed in the Intermediate Report, establish that the Respondent has sup- ported the IBEW in violation of Section 8 (a) (2) of the Act .3 The Respondent argues, in effect, that its desire to rid the plant of "Communism," assertedly exemplified by the UE Local there, exculpates it from any violations of the Act. On these facts, we can find no merit in this contention. The violations of the Act herein found stein from the Respondent's unlawful support of the IBEW, and its unlawful interference with the rights guaranteed to its em- ployees by the Act. Congress has not authorized this Board to engraft s Contrary to the Respondent's contention , we find nothing in the record or Intermediate Report reflecting bias or prejudice by the Trial Examiner in either the conduct of the hearing or his findings , conclusions , and recommendations. 3 We regard the Wsllaam Penn case , cited by our dissenting colleague , to be inapposite. The decision therein was based in part on the employer's continued recognition of an incumbent union , contrary to the situation here Moreover, unlike here, the recognition there did not constitute deliberate flouting of the Board 's express and unconditional withholding of certification from the petitioning union. 3 STEWART-WARNER CORPORATION 609 an exception upon the statute whenever 'a respondent's violations may be motivated in part by patriotic objective' 3. We likewise agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act. Again, we rely solely upon those activities of Respondent occurring after July 3, 1949, as set forth in the Intermediate Report, as a basis for this finding. - 4. We agree with the Trial Examiner that the Respondent did not violate Section 8 (a) (3) of the Act by discharging Florence Hall. Like the Trial Examiner, we are satisfied that Respondent discharged Hall for cause. We do not agree with the Trial Examiner, however, that Respond- ent violated Section 8 (a) (3) of the Act with respect to John Kelliher. It is undisputed that on June 2, 1949, Kelliher disobeyed an order applicable to all employees. His status as president of the UE local did not exempt him from its application. It is difficult for us to believe, as did the Trial Examiner, that a plant-wide order affecting so many employees was promulgated by Respondent for the sole pur- pose of ridding itself of Kelliher, or that Respondent was sufficiently prescient to foresee the precise reaction of Kelliher that would enable it to discharge him "for cause." Accordingly, we shall not adopt the Trial Examiner's finding and recommendation in this respect, and shall dismiss the 8 (a) (3) allegations of the complaint .5 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 4 "[The statute's] avowed purpose was not to favor or promote unions as such. It was to promote and protect the rights of individual employees to join or not to join unions and to be free from coercion and interference either way ." N. L R B. v. Augusta Chemical Company, 187 F 2d 63 ( C A. 5). See also N. L. R B. v. Star Publishing Co., 97 F. 2d 465 at 470 (C. A 9) : "The act prohibits unfair labor practices in all cases.' It permits no immunity because the employer may think that the exigencies of the moment require infraction of the statute." In Dominic Meaglia and Samual Meaglia, d/b/a American Foundry, 43 NLRB 1277, the Board rejected a contention of the respondent therein that it was under no obligation to bargain because of the bargaining agent's reputation as a communist , stating . the Act requires an employer to bargain collectively with the freely chosen representative of his employees , however unfit such representative or its agents may be thought to be." 'Member Houston would find that the Respondent violated Section 8 (a) (3) by discharging Kelliher. As the majority of the Board has dismissed the 8 (a) (3) allega- tions of the complaint on their merits, however, lie agrees with his colleagues that it is unnecessary to decide whether or not the charge upon which this portion of the complaint was based was valid. Member Houston does not find it necessary to endow Respondent with prophetic power to sustain the Trial Examiner's finding that Kelliher was discriminatorily discharged Rather, be believes that any reasonable and lawfully motivated employer would not have discharged Kelliher in the circumstances described in the Intermediate Report. In fact, the evidence shows that Kelhher's foreman did foresee Kelliher's reaction to the order, yet Respondent directed him to apply the rule to Kelliher anyway. The only reason Respondent refused to except Kelliher from the general rule, Member Houston believes, was to establish a pretext in order to eliminate the chief UE adherent. 953841-52-vol 94--40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the Respondent, Stewart-Warner Corpora- tion, Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving support to International Brotherhood of Electrical Workers or effect to any contract with that organization. (b) By means of threats or promises, or in any other manner in- terfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor or- ganizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition front International Brotherhood of Electrical Workers, as the collective bargaining rep- resentative of any of its employees until such time as that organiza- tion may be certified as such representative by the Board. (b) Post at its plants on Diversey Avenue in Chicago, Illinois, copies of the notice attached hereto marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being signed by Respondent's representa- tive, be posted by Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated Section 8 (a) (3) by discharging Florence Hall and John Kelliher, be, and it hereby is, dismissed. MEMBER REYNOLDS, dissenting : I am unable to concur in the decision of my colleagues finding that the Respondent has committed unfair labor practices in violation of " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." STEWART-WARNER CORPORATION 611 Section 8 (a) (1) and (2) of the Act. Their conclusions are based principally upon various acts of the Respondent occurring after the July 7, 1949, election and upon two events which occurred before the election. For the reasons discussed below I do not believe that these activities on the part of the Respondent are sufficient to support the complaint. The unlawful aspects of the Respondent's post-election conduct, if any, revolve about the Respondent's recognition of the IBEW as the bargaining representative of certain of its production and mainte- nance employees. I do not agree with my colleagues that, in the circumstances of this case, such recognition constitutes unlawful sup- port of the IBEW. On July 7, 1949, in Case No. 13-RM-53, the Board conducted an election among the foregoing employees to de- termine whether or not they wished to be represented by the IBEW. The IBEW obtained 1041 votes, while 886 votes were cast for "no union" and 193 ballots were challenged. After an investigation, the Regional Director, on August 10, 1949, issued his Report on Chal- lenged Ballots sustaining the challenges to 181 of the disputed ballots and thus determining that the IBEW obtained a majority of the votes in the election.7 However, the Board, on November 25, 1949, withheld certification of the IBEW pending disposition of unfair labor practice charges filed on July 13, 1949, in Case No. 13-CA-306. On January 31, 1950, the Respondent recognized the IBEW as the bargaining representative of its production and maintenance em- ployees. By thus recognizing the IBEW while a question concerning the representative status of the Union was pending before the Board, the Respondent was incurring the risk that its act of recognition would be an unfair labor practice in the event the Board later sus- tained the charges in Case No. 13-CA-306. However, the majority of the Board in reaching their decision herein now decides that they will not rely upon any evidence which is dependent for its admissi- bility upon the charges in Case No. 13-CA-306.$ Thus, the Board's decision in this case establishes, in my opinion, that no genuine dispute as to the representative status of the IBEW existed at any time after the July 7, 1949, election. Accordingly, the Respondent by recogniz- ing the IBEW in January 1950 did not commit any unfair labor practices." ' No valid exceptions were filed to the Regional Director 's Report on Challenged Ballots I am in agreement with my colleagues that the decision herein should not be based upon any pacts stemming from the charges in Case No . 13-CA-306 9 See Mid-West Piping and Supply Co , Inc., 65 NLRB 1060; William Penn Broadcasting Company, 93 NLRB 1104. It should be noted that the Respondent delayed recognition of the IBEW until January 31 , 1950, after a cross-check by a city official of designations secured subsequent to the election showed that a majority of Respondent 's production and maintenance employees had redesignated the IBEW as their bargaining representative. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because I believe that, in the circumstances of this case, the Re- spondent was justified, without violating the Act, in recognizing the IBEW in January 1950, I also believe that the Respondent's other post-election conduct being consistent with such recognition likewise did not►violate the Act. The two remaining activities, relied upon by my colleagues in finding that the Respondent herein has committed unfair labor practices, occurred before the election. I consider these two acts of alleged assistance to the IBEW as being too insubstantial upon which to base a finding of unfair labor practices.1° Accordingly, I would dismiss the complaint herein 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 withdraw and withhold recognition from INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS as the representa- tive of our employees for the purposes of collective bargaining until that organization shall have been certified by the National Labor Relations Board as such representative. WE WILL NOT give effect to our agreement dated March 16, 1950, with INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, or to any extension, renewal, modification, or supplement thereof, or to any superseding agreement with that union unless and until the said union shall have been certified by the National Labor Relations Board as the representative of the affected employees. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. All of our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization., We will not discriminate in regard to hire and tenure of employment "Tennessee Kntit tang M 1is, Inc, 88 NLRB 1103 STEWART-WARNER CORPORATION 613 against any employees because of membership or activity, or non- membership or nonactivity , in connection with any labor organization. STEWART-WARNER CORPORATION, Employer. Dated--------------- By------------------------------------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order Messrs. John P. von Bohr and Robert E. Ackerberg, of Chicago, Ill., for the General Counsel. Winston, Strawn, Shaw & Black, by Messrs. Neal J. McAuliffe, Frank B. Gilmer, and George B. Christensen, all of Chicago, Ill., for Respondent. Jacobs and Kamin, by Mr. Joseph M. Jacobs, of Chicago, Ill., for the IBEW. Leon M. Despres, by Mr. Samuel D. Golden, of Chicago, Ill., for the IUE. Meyers, Meyers & Rothstein, by Mr. David B. Rothstein, of Chicago, Ill., for John Kelliher, Frances Mihelich, and Marion E. White. STATEMENT OF THE CASE , Upon charges duly filed in Case No. 13-CA-306 by John Kelliher, Frances Mihelich, and Marion E. White, and in Case No. 13-CA-427 by International Union of Electrical, Radio and Machine Workers, CIO, herein called the IUE, the General Counsel of the National Labor Relations Board, herein called re- spectively the General Counsel and the Board, caused the cases to be con- solidated and issued his consolidated complaint dated January 12, 1950, against Stewart-Warner Corporation, Chicago, Illinois, herein called Respondent. The complaint alleged that Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint and. notice of consolidation and hear- ing were duly served upon all persons and parties heretofore named and upon International Brotherhood of Electrical Workers, Local 1031, herein called the IBEW, With respect to unfair labor practices, the complaint alleged in substance that Respondent discriminatorily discharged Frances Hall on or about March 18, 1949, and John Kelliher on or about June 2, 1949; that Respondent since March 18, 1049, had interfered with, restrained, and coerced its employees in the exercise of their statutory rights by preparing and circulating petitions by means of which employees were asked to indicate their preference for the IBEW and disapproval of the United Electrical, Radio and Machine Workers of America, Local 1154, UE, herein called the UE, by interrogating employees concerning union membership and activities, by uttering threats and offering benefits to employees in connection with their activity on behalf of a labor organization, by applying plant rules in such a manner as to assist the IBEW and to impede organiza- tional activity on the part of UE and the IUE, and by assisting the IBEW by means of its publication, the "Stewart-Warnerite " Respondent's answer, filed with the Regional Director on February 14, 1950, admitted the jurisdictional allegations of the complaint, denied the commission 614 DECISIONS OP NATIONAL LABOR RELATIONS BOARD of unfair labor practices, and alleged that Hall and Kelliher were discharged for lawful cause. Pursuant to notice, a hearing was held at Chicago, Illinois, from February 14 through 21 and from March 13 through 30, 1950, before the undersigned Trial Examiner. The General Counsel, Respondent, the IBEW,' the IUE, and the individuals who filed charges were represented by counsel and participated in the hearing. 1ull opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, to introduce evidence, and to argue the issues upon the record. Counsel for the three individuals and counsel for Respondent have submitted briefs which have been considered! Motions by the General Counsel made after the close of the hearing that I judicially notice action taken by the Board in Case No. 13-RM-53, and by Respondent that I so notice a motion filed by the IBEW in that proceeding, are granted, Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Stewart-Warner Corporation is a Virginia corporation with its principal office and place of business in Chicago, Illinois. Respondent also operates plants in various States of the United States and one in Canada. This proceeding con- cerns Respondent's plants 2 in the city of Chicago where it is engaged in the manufacture of automobile accessories, radios, television sets, and lubrication equipment. The value of raw materials used at the Chicago plants concerned here exceeds $5,000,000 annually of which approximately 50 percent is purchased and transported to Chicago from points outside the State of Illinois. Finished products from the same plants amount in value to more than $10,000,000 annually and approximately 50 percent of such products is shipped to points outside the State of Illinois. IT. THE ORGANIZATIONS INVOLVED International Union of Electrical, Radio and Machine Workers of America, CIO, International Brotherhood of Electrical Workers, and United Electrical, Radio and Machine Workers of America, Local 1154, UE, are labor organiza- tions admitting to membership employees of Respondent' 'Counsel for the IBEW first appeared as amticus curiae When it clearly appeared that he represented an adversary interest , I struck his appearance as amticus but invited him to remain as a party . On the following day, February 15, he withdrew from the hearing. 2 The time allowed for submission expired May 20, a Saturday . Thus briefs received on Monday, May 22, were timely filed. A brief from the General Counsel with a covering letter dated May 19, reached me on May 24 . It has not been considered . Western Wear of California, Inc., 87 NLRB 1363. 3 The plants are located on Diversey Parkway and are generally referred to in the record as the North Plant and the South Plant. Another of Respondent's operations, on Fullerton Avenue in Chicago, is not involved here. 'Respondent's answer admitted this allegation of the complaint. During the hearing on March 13, the answer was amended to deny that UE was a labor organization. Some evidence was adduced and much more was offered and rejected for the purpose of showing that UE was dominated by Communists. The evidence is clear, however, that whatever the fact about Communist domination, UE exists, in part at least, for the purpose of representing employees in matters of wages, hours, working conditions, or other conditions of employment and thus by statutory definition is a labor organization. Sunbeam Corporation, 89 NLRB 469. STEWART-WARNER CORPORATION 615 III. THE UNFAIR LABOR PRACTICES A. Background In 1943, UE was certified by the Board as the bargaining representative of Respondent's employees at the plants here affected. Thereafter, Respondent and the UE entered into a series of collective bargaining agreements covering wages, hours, and employment conditions. The last such contract was entered into on May 5, 1947, for a term of 2 years with provision for automatic renewal, absent notice of termination, from year to, year thereafter. By agreement dated July 2, 1948, the contract was amended and extended to June 1, 1950, but with a provision for consideration of wage changes on June 1, 1949, and for uni- lateral termination in the event no agreement was reached on that question. William W. Miller, Respondent's director of industrial relations, testified that negotiations for wage changes were opened in April 1949, that the UE at first demanded benefits which would approximate a wage increase of $1.93 an hour but later lessened their demand to a "package" increase of 25 cents an hour. Respondent at first sought substantive changes in the existing con- tract but later offered to continue the agreement without change for another year! Respondent's position throughout negotiations was that no wage increase would be granted, arguing that it had granted no increase at any of its plants. On June 1, 1949, Miller remarked to the negotiators that nothing was being accomplished and that he saw no point in further meetings. One of the UE representatives asked if Respondent was "walking out." Miller replied that it was not. - That evening Miller called a meeting of all foremen and higher supervisors and told them that the Respondent was terminating the contract with the UE and that the IBEW had made a request for recognition. On June 2, all employees were notified by bulletin board notices and otherwise that the contract was terminated, that all "mass meetings" ° and public speaking activities on Respondent's property were forbidden, that all union activities were forbidden during working hours, and that all rights and privileges inuring to UE officials and stewards under the contract were revoked. B. Assistance to the IBEW, interference, restraint, and coercion The General Counsel offered the testimony of Charles Cavanaugh to estab- lish in outline and in some detail the actions of Respondent which are alleged to constitute unlawful support of the IBEW. Cavanaugh, an employee of Respondent since 1940 and an executive board member and steward for the UE until the termination of the contract, testified that about June 10 he and a number of other employees constituted themselves an informal committee to investigate the possibility of securing representation by a labor organization other than the UE. They talked with a representative of the United Automobile Workers, CIO,' but before any final decision was reached in connection with that organization, Cavanaugh was called on June 13 to the office of Edward Dunning, Respondent's assistant director of industrial relations. John Harrington who also had been a steward in the UE was present According to Cavanaugh, Dunning asked which way the two were going, IBEW or UE. Cavanaugh replied that a meeting that night might decide that question. Dunning remarked that he would like to know the decision the next day. " Despite its asserted belief that UE was dominated by Communists. e Such meetings , i. e., gatherings of employees in the plant during nonwork periods for discussion of union problems had been permitted for years. 7 Herein called the UAW. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Wednesday, June 15, still according to Cavanaugh, both he and Harrington returned to Dunning's office and found both Miller and Dunning there Dunning again asked which union they .would support. Cavanaugh replied that the UAW was not interested in representing Respondent's employees and that he had Harrington would "go IBEW" if a laid-off employee and former UE steward, Anthony Urlicks, was recalled to work. Cavanaugh also remarked that he had never seen an IBEW contract. Miller showed him 3 of them and said that AFL unions had fewer strikes than CIO unions ; that Respondent did not want the CIO. Cavanaugh testified that both he and Harrington stressed that if Urlicks was brought back to work, they could "swing" the shop to the IBEW. Miller replied that he would see what could' be done about it. The same day, Cava- naugh procured 50 IBEW designation cards. On June 16, Urlicks was recalled to work. After obtaining the IBEW cards, according to Cavanaugh, he solicited em- ployees to sign them and performed this solicitation in and out of his depart- ment and during working hours until the day before an election was conducted among the employees under the supervision of the Board on July 7. During this period, Cavanaugh testified, he used Respondent's telephone to make calls in connection with his activity on behalf of the IBEW on three or four occasions and that upon each occasion he was granted permission to do so by his foreman or supervisor. Harrington testified for Respondent that he *was called to Dunning's office on June 13 and that Cavanaugh was there. According to Harrington, Dunning remarked that a report had come in to the effect that Harrington was soliciting for a labor organization during working hours. Harrington denied that this was so but in response to Dunning's question about what labor organization he was interested in, said that it was the UAW. Dunning then said that Harrington would not be interfered with as long as his activities were restricted to nonwork- ing hours. The next day, still according to Harrington, he was called to Miller's office where Cavanaugh was present e Miller said that both Harrington and Cavanaugh were reported to be soliciting for a labor organization and asked for its name. When Cavanaugh replied the UAW, Miller asked why they were interested in that organization. Harrington answered that the IBEW, reputedly, had no contracts. Thereupon Miller exhibited such contracts to them. Harring- ton spoke of a rumor that he would be fired if he worked for any organization but the IBEW ; Miller replied that he was unconcerned what Harrington did outside working hours. Harrington denied that either he or Cavanaugh offered to "swing" the plant to the IBEW if Urlicks was recalled but testified that he asserted Urlicks' layoff to be unjust and that Miller said that he would see what could be done about it. A week or two later, according to Harrington, he began supporting the IBEW. At the time of the hearing, Harrington was an IBEW steward. Miller testified that such a meeting did occur on June 14 in his office and that Harrington, Cavanaugh, and Dunning were present. According to Miller, either Cavanaugh or Harrington asked if they were in trouble because they were supporting the UAW. Miller replied that they were not, that they could back any union they chose as long as they did so during nonworking hours. Cava- naugh then asked why Miller did not like the UAW and Miller answered that the UAW had many stoppages and work difficulties particularly in the Detroit area and that during the negotiation of contracts, the UAW seemed to have long 8 Cavanaugh testified that this meeting took place in Dunning's office, that both Miller and Dunning were piesent, and that it occurred a day later than the date upon which Harrington placed it. STEWART-WARNER CORPORATION 617 strikes. For these reasons, Miller, said, he did not think employees of Respondent would care for such a union and , further, that he did not want the UAW to par- ticipate in the coming election because it would split the anti-Communist vote. Miller agreed that he had exhibited IBEW contracts to them in answer to Cavanaugh's asserted belief that the IBEW did not permit employees to see their contracts . Sometime during the conversation , according to Miller, Harring- ton remarked that Urlicks was still laid off. Dunning ' answered that he had been looking for a place for Urlicks and thought that he would find one soon. Miller said nothing. Miller denied that the question of Urlicks' recall was in any manner conditioned -upon the acceptance of the IBEW by Harrington or Cavanaugh and asserted that, both left the office still ostensibly UAW supporters. Dunning did not testify concerning his participation in these conversations. Cavanaugh remained active in support of the IBEW until January 13, 1950, when he transferred his allegiance to the IUE As an IUE supporter he of course is opposed to certification of the IBEW. Harrington, as an IBEW steward, presumably favors it. I have considered the interest of each in apprais- ing the testimony. In the light of all the evidence, much of it lincontroverted or admitted as hereinafter detailed , concerning Respondent's assistance to the IBEW, Cavanaugh's version of the June 13 conversation with Dunning is the more believable. It is credited. As will appear , Respondent was about to embark upon a campaign to "sell" the IBEW to its employees. It is entirely reasonable to suppose that it would first,seek out, those who.bad opposed the dominant faction in the UE and who, therefore , might be expected to assist Respondent in foisting another representa- tive upon its employees . Harrington and Cavanaugh , had these qualifications. Both had opposed the administration of the UE and , with others, had expressed dissatisfaction with the manner in which UE affairs were conducted . I find that on June 13, Dunning asked Cavanaugh and Harrington if they were going to support the IBEW or the UE and asked them to report their decision the next day. As to the meeting of June 14, I am convinced that Miller related the con- versations more accurately than either Cavanaugh or Harrington . During this meeting Miller stated why an AFL union was to be preferred over a CIO union, and, in context, he reasonably was understood by Cavanaugh to be presenting arguments in favor of the IBEW. There was discussion , as Miller testified, concerning the recall of Urlicks. I believe that Miller testified with literal accu- racy that neither Cavanaugh nor Harrington said that they would "throw the shop to the IBEW" if Urlicks came back and that no statement was made that the conduct of Cavanaugh or Harrington would depend upon Urlicks' recall. I believe that Cavanaugh did say at this meeting that he, Harrington, and Urlicks could lead the employees into the IBEW and I conclude that Cavanaugh, at least, believed that he had committed himself to support the IBEW if Urlicks was returned to work. Dunning testified that Urlicks, whom he liked personally and whom he regarded as a capable, fair, and honest employee, was laid off in early May 1949. Due to Dunning's intervention, the layoff was temporary rather than permanent and, Dunning testified , thereafter he sought assiduously to find work in the plant to which Urlicks by virtue of skill and seniority would be entitled. Such a job was located on June 15, Dunning testified, and Urlicks was asked to come to the plant the next day for interview . In the meantime, Miller had caused a number of petitions to be prepared. They were headed : We, the undersigned, former stewards or officers of Local 1154, UE-CIO, have decided that the best interests of ourselves and our fellow workers will 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be served by a "yes" vote for the IBEW in the coming election to select a bargaining agent for production and maintenance employees of our plant. We intend to cast our own votes for the IBEW and urge that all eligible voters do likewise. We believe that any other vote action would constitute a vote for UE and for communism and that the result of a "no union " majority would not only leave employees with no bargaining agent but would result in a strike called by UE. The petitions were turned over to Dunning with instruction to ask former stewards and officers of the UE to sign. On the morning of June 16, Dunning told Urlicks of the job opportunity that had been found for him and Urlicks said that he would take it. Dunning then showed him the petition saying that since Urlicks had always opposed Com- munism, he should be willing to sign it. Urlicks resisted Dunning's arguments for a time but finally signed 9 and was the first former UE steward to do so. A number of other former stewards were then called to Dunning's office, among them Cavanaugh and Harrington , and were asked to sign the petition. Urlicks then left Dunning's office, stopped at the office of the assistant personnel director, and then went to the department where he was to work . There he met Arthur Kellerman, a general foreman, who explained the job to him and told him the tools he would need. Urlicks then left the plant m Kellerman testified that about June 14, Superintendent Edward Leth telephoned and inquired if Kellerman had a job where Urlicks would fit. Kellerman replied that he did not know but that he would investigate . Then, according to Keller- man, he discovered that there was such a job and that it was being performed by an employee having less seniority than Urlicks . Kellerman notified Leth and Dunning of the situation and Urlicks came to Kellerman about the job. Kellerman denied that anyone had instructed him to find a, place for Urlicks or that Miller had spoken to him in any way about it. Of course the recall of Urlicks at the threshold of Respondent's campaign for the IBEW and after Cavanaugh had told Miller and Dunning that Urlicks would be influential in aiding the IBEW could be mere coincidence . I do not believe that it was. I find that the evidence by its preponderance supports the con- clusion that Urlicks was recalled on June 16 in the well-founded belief that by doing so Respondent was aiding the IBEW preelection campaign . In reaching this conclusion I have considered the credited testimony of Urlicks and Dunning that the latter had told Urlicks the layoff would be brief and I believe that Dunning fully intended that Urlicks be recalled when opportunity presented. The evidence does support the inference which is drawn that Dunning's efforts to find work for Urlicks were intensified on June 14 when it appeared probable that Urlicks' return would serve the additional purpose of assisting the IBEW. Dunning secured the signatures of more than 70 former UE stewards and officers to the petition. The solicitation took place almost entirely during working hours. Earlier in the month, on June 6, William Henson, once a steward for the UE, who had been away from the plant because of illness, asked his foreman, John Franks, for an addition week off. Franks granted the request. Henson then got a supply of IBEW designation cards and spent from 2 to 4 hours on each of 3 days that week soliciting employees to sign them. Henson testified that 9 On cross-examination Urlicks testified that he signed the petition because he feared that he would not long remain reinstated at the plant if he did not. 111 do not credit Dunning 's testimony that Urlicks was not rehired until after he talked with Kellerman and that after talking to Kellerman , Urlicks returned to Dunning's office. Urlicks impressed me as a truthful witness and as one possessed of a reliable 'memory . His account of the happenings on the morning of June 16 is accepted. STEWART-WARNER CORPORATION 619 -on June 7, Foreman Franks asked him if he had secured the signature of Joe Netilocky " and when Henson answered that he had not, Franks said, "I will go talk to him." Later in the day, according to Henson, Franks said that "it was OK to sign Joe up." Franks denied that he inquired if Henson had gotten Netilocky to sign a card, testified that Henson said that lie had been unable to get Netilocky to sign, and that in reply Franks merely shrugged his shoulders. The evidence does not establish that Netilocky actually was approached by Franks in connection with signing an IBEW card. Franks' own testimony is an admission that he knew Henson to be soliciting for the IBEW. I find that he spoke to Henson as the latter testified. During the morning of June 8, according to Henson, he remarked to Super- visor Edward Brokaski " that he had been unable to get employee Rose La Rosa to sign. Brokaski said he would see what he could do with her and later said to Henson, "It's no use." Brokaski did not mention La Rosa in his testimony but denied that he had spoken to any employee concerning the IBEW. Brokaski's conduct was the subject of testimony by other witnesses for the General Counsel which is herein- after discussed. He denied participation in each incident. I do not credit his denials. I believe that Henson testified truthfully concerning the La Rosa incident. Henson testified further that in the afternoon of June 8, he complained to Henry Gillig, manager of the South Plant, that one employee, Ben Ackerman, would not sign and suggested that Ackerman be isolated at a point where he would not "cause trouble." Gillig admitted that Henson made such a complaint and that he answered, ".. I am not interested one way or the other. Your union activities should be done during- rest periods and during the lunch hour, and 'if I find you are doing anything else but that, you will lose your job." There is no evidence that Henson continued his solicitation in the plant during working hours after this conversation with Gillig which supports my conviction that Gillig warned Henson in that connection. Gillig was not however accurately stating the policy of Respondent that was effective during this period preceding the election. Ben Ackerman, a steward for the UE until the contract was terminated, testi- fied concerning Respondent's actions in support of the IBEW. According to Ackerman, he was called to Dunning's office about June 20 and asked to sign the petition. Ackerman inquired if he must sign as he was not "exactly" in favor of the IBEW. Dunning replied, "No, you don't have to, but everyone else is getting on the bandwagon." Ackerman signed. About June 22 or 23 Respondent started the circulation of another petition headed just as was the earlier one except that the reference to former stewards and officials of the UE was deleted. Respondent concedes that these petitions were given to foremen and supervisors with instruction that employees be re- quested to sign without resort to threats or promises. Ackerman testified that about June 23 he was given one of these petitions by his supervisor, Brokaski, who told him to sign it and to get the rest of the employees to do so. Ackerman expressed unwillingness but, when Brokaski said that the instruction came from Foreman Franks, and that "it could be made tough" if Ackerman did not accept the task, he signed the petition, and solicited other employees to do so When he had obtained the signatures, Ackerman "Henson could not recall Joe's last name. Franks testified that there was a Joe Netilocky employed in the department and that Henson had said to Franks concerning Netilocky, that "Joe would not sign this card." 12 Generally referred to in the record as Eddie Brooks. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned the petition to Franks. When he did so, Ackerman testified, Franks remarked, "When are you going to go along with the boys and get on the band- wagon?" Ackerman testified that he first saw an IBEW designation card at the plant on Monday, June 6, when an employee, Pete Ozman, came to where Ackerman was working and asked him to sign one.13 Two days later, on June 8, according to Ackerman, Foreman Franks told him to have Jim Leonard sign such card. Ackerman refused. Ackerman testified that upon a later occasion, the date of which is not clear from the record, Brokaski solicited' Irene Knapowski and Jim Leonard to'-stgu IBEW cards. Shortly before 14 the election, according to Ackerman, he was called to Franks' office and told in the presence of Brokaski and Foreman William Kash to ask Knapowski to sign the second petition and an IBEW card, Franks saying that all others who had attempted it had been unsuccessful. Franks supplied the IBEW card, Ackerman testified, and he, the salesmanship. He persuaded Knapowski to sign and returned the signed card to Franks. At about the same time, still according to Ackerman, Franks told Ackerman that his assistance might be required to get Joe Netilocky to sign a card but later in the day announced that Netilocky had signed. In important respects Ackerman's testimony was contradicted by that of Franks and Brokaski. Respondent also produced witnesses who testified that Ackerman's reputation in the plant for truthfulness was "not very good." On the other hand, testimony offered by Respondent to controvert Ackerman was in some instances peculiar. Ackerman testified that about June 6, em- ployee Pete Ozman solicited him to sign an IBEW card in the presence of Brunke, a nonsupervisor. Brunke denied that he heard Supervisor Brokaski solicit Irene Knapowski to sign such a -card on that date, thus controverting nothing that Ackerman testified to. Again Brunke denied that he gave a. petition to Ackerman for circulation under instruction from Foreman Franks. No one testified that he did. Brokaski testified that he knew nothing of a petition being circulated in the plant, denied that he gave one to Ackerman, and said that there was no conver- sation between him and Ackerman concerning a petition. Further contradict- ing Ackerman, Brokaski testified that he never solicited Knapowski or Leonard to sign IBEW cards, that he did not hear any conversation between Ackerman and Franks concerning "getting on the bandwagon" or concerning the IBEW at all, and that he never saw Franks in possession of an IBEW card. Franks testified that about June 22 he was given three or four petitions by Miller and instructed to circulate them among the employees in his department. The next day he gave one of the petitions to Brunke and told him to have it signed. According to Franks this was the only petition which he caused to be circulated; that the others Miller had given him remained on his desk. In the afternoon of the same day, Franks testified. Ackerman returned the petition to him with some signatures on it. Franks accepted it without comment. Franks denied that he instructed anyone to give the petition to Ackerman, denied that he had ever seen an IBEW card or given one to Ackerman for Knapowski's sig- nature, denied that he said anything to Ackerman about getting on the band- wagon, but admitted that about 3 days before the election, Ackerman remarked 131 find that Harry Brunke who, Ackerman testified, was present on this occasion was not a supervisor at the time of the incident. 14 Ackerman testified that this incident occurred 3 days after the election. I am con- vinced that Ackerman intended to place this happening before July 7. The testimony of Knapowski supports this conclusion. STEWART-WARNER 'CORPORATION 621 that Joe Netilocky would not sign. Franks testified , "Well, it did not make much difference . I did not ask him to sign any cards, so nothing interested me there . . . I just shrugged my shoulders and it just did not register . I was not interested." Elmer Raschke, a nonsupervisory employee , denied that he was present upon any occasion when Brokaski asked why certain employees had not signed a peti- tion or a card. Ackerman had testified that he was. Supervisor William Monk contradicted Ackerman's testimony that Monk was present on an occasion when Franks asked Ackerman when Ackerman was going to get on the bandwagon. Foreman William Kash denied that he was present at any conversation be- tween Franks and Ackerman, as the latter testified , in which getting Knapowski to sign an IBEW card was discussed. Out of this conflict only the fact that Ackerman signed a petition for Dunning, that he had another petition, and that he returned it to Franks emerges undis- puted. Despite the testimony of Franks, Kash, Brokaski, Rashke, Brunke, and Monk , I believe that Ackerman's relations of incidents occurring in the period pre- ceding the election is substantially correct and merits belief. As has to some ex- tent been shown and as more clearly will appear, Respondent was an active and forceful campaigner for the IBEW and earnestly desired its success in the elec- tion. It warned the employees of the unhappy result to be expected from a rejec- tion of the IBEW. It instructed its foremen to ask employees to declare their choice respecting a union in flagrant violation of the Act Though employees gen- erally were forbidden to engage in union activity during working hours, and some individuals during nonwork periods, Respondent did not so inhibit itself. Against this background, there is nothing improbable in the happenings about which Ackerman testified. On the contrary, the conduct which he attributed to Franks and Brokaski was a natural and perhaps inevitable result of Respondent's pro- IBEW policy. Certainly, foremen were instructed not to promise benefits or to threaten-reprisals but they were also instructed to ask employees to sign the petitions and they knew that Respondent deeply desired'that employees sign. I suppose that it might be suggested that Ackerman colored his testimony in re- sentment because he was laid off in September 1949 and has not been recalled. There is, however, nothing in the record or in his manner on the stand to indicate that his testimony was in any way motivated by such a feeling. Finally, Acker- man was convincingly corroborated in important aspects of his testimony by Irene Knapowski, a witness for the General Counsel, whose credibility was not successfully attacked throughout her cross-examination and whose testimony was given with such an aura of frankness and simplicity as to command belief. Knapowski, who left her employment with Respondent after 7 years and who at the time of the hearing was no longer its employee, testified that she had be- longed to no union during the time she worked for Respondent. About a week before the July 7 election, Knapowski testified credibly, Foreman Franks asked her if she had signed an IBEW card and when Knapowski said that she had not, advised her to think it over. Two or three days later, Brokaski asked her to sign such a card, told her that Respondent was trying to rid itself of the UE and "get the IBEW in," and that her job would be more secure if she signed. Knapowski refused. When she did so, Brokaski made a notation of her time- clock number.'5 About 3 days before the election,"' Knapowski was called to the office of Foreman William Kash where Kash asked her why she had not signed a 11 Knapowski testified that Ackerman was present during this conversation. 31On direct Knapowski placed this incident as 2 days after the election but on cross said that it occurred 3 days before . Obviously the earlier date is the correct one. 622 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD card. Knapowski explained that she had never signed a card for any union and did not understand why she should do so now. Kash explained during the following 30 minutes that if she voted for no union it would be the same as vot- ing for the UE and that working conditions would be greatly improved if the IBEW was chosen in the election. Knapowski remained obdurate while in Kash's office but an hour later signed both a card and a petition. While on the stand, she was not asked who successfully requested that she do so but this happened on the same day that Ackerman was asked by Franks to get Knapowski's signature on an IBEW card. I credit the testimony of Ackerman and Knapowski and disbelieve the denials of Kash, Franks, and Brokaski. Edward Glab was a department steward for the L'E at the time the contract was terminated. On June 13 or 14,17 according to Glab's uncontradicted and credited testimony, Supervisor James Campbell asked him to sign one of the IBEW petitions, saying that the IBEW was a better union than the UE and would achieve more for the employees. Glab refused to sign. That afternoon Campbell repeated his request, pointing out if Glab would sign, others in the department would be more likely to do so. About a week before the election,18 Glab distributed UE leaflets at one of the plant entrances before work. After Glab punched in, his foreman, Nick Schue, said that Glab was in sufficient jeopardy as it was and he should not shout so loud while passing out leaflets. Schue admitted that he spoke to Glab about the stridency of the latter's voice when distributing leaflets but denied that he advised him to be less conspicuous in his support for the UE. Glab's testimony is credited. James Peka, a one-time UE steward and still a member, testified that on June 10, Foreman Otto Redwanz called Peka to the foreman's office, accused Peka of circulating raffle books sponsored by the UE in the plant, and reminded Peka that since June 2 union activity had been forbidden. Peka expostulated that he was distributing the books only during nonwork periods. According to Peka, Redwanz answered that he was not permitted to do so. Later in the day Peka was called to Dunning's office and accused by Dunning of selling raffle books. Peka admitted that he had done so. Dunning then said, "Well, do you know that a notice is on the bulletin board stating no union activi- ties in the shop?" Peka said that he had read the notice but that it did not for- bid such activity during nonwork periods. Dunning replied that union activity was not permitted at any time on Respondent's property. Peka suggested that the notice should be changed so as to read that way. Dunning said, "You have had your warning now. You go back to work. One more time and you are done." In late June, according to Peka, Foreman Redwanz asked him to sign an IBEW petition. Peka refused to do so. Redwanz testified that he believed that he told Peka that selling raffle books- was in violation of the contract and forebade him to continue. He denied that he asked Peka to sign a petition. Dunning was not questioned about the raffle books incident. I credit Peka's testimony. Respondent's right to prevent the selling of raffle books on its property is not here in question. Redwanz and Dunning went far beyond that. . Dunning especially told Peka that he could not engage in union activity on Respondent's property. Such a rule is improper absent a showing that it is reasonably necessary to the efficient conduct of an employer's business, a showing not made- here. I find that neither Redwanz nor Dunning forbade Peka to sell raffle 17 Glab was mistaken about the date. The petition he was asked to sign was not- circulated before June 23 18 Schue said this happened in April 1949. STEWART-WARNER CORPORATION 623 books because of any plant rule ; they did so because it was a form of activity helpful to the UE, and ipso facto, not favorable to the IBEW. Ethel Conoboy, a UE member and steward , testified that her foreman, Art Lumb, told her on June 2 to stay at her bench ; that she had much seniority and should do nothing to hurt herself . Sometime during the third week in June, according to Conoboy , her supervisor , Joseph Resnowski, asked if she was "converted" yet. Conoboy made a noncommital reply. Resnowski then said, "Let me give you a friendly tip. Time is running out for you anyway," and went on to say that Foreman Lumb had remarked that Conoboy "should get on the bandwagon or else." Still according to Conoboy , on about June 16, Lumb asked her if she would become interested in the IBEW, offered to get her some IBEW literature, and suggested that she attend an IBEW meeting. Lumb went on to suggest that Conoboy might become an IBEW steward in the department . Sometime during the same week, Conoboy testified, Lumb asked her how she thought the election would result, Lumb venturing the opinion that most of the employees in his department would vote for the IBEW. About 2 weeks before the election, Lumb asked her how she intended to vote. Conoboy refused to say. Foreman Lumb testified that he never asked Conoboy for her opinion con- cerning the outcome of the election , never asked how she intended to vote, and never offered to get her any IBEW literature or suggested that she attend an 1BEW meeting. Instead, according to Lumb, Conoboy asked him for informa- tion about the IBEW and Lumb suggested she go to someone familiar with that organization, Supervisor Resnowski testified that be may have asked Conoboy if she was "converted" but denied saying that time was running out for her or that she should get on the bandwagon. I suppose that Conoboy's testimony could have been contrived , that she could have falsified and drawn upon her imagination to put words into the mouths of Lumb and Resnowski . On the other hand, Lumb and Resnowski may have been implementing Respondent 's policy of assisting the IBEW by adding a few frills of their own. The latter explanation is by far the more likely one and is established , in my opinion, by a fair appraisal of the testi- mony viewed against Respondent 's pro-IBEW campaign . I credit Conoboy's testimony. I do not believe the denials of Lumb and Resnowski. Bernice Loduigowski , an employee of Respondent since 1941 and a UE mem- ber since 1944 , testified that she was called to the office of her foreman, Mat- thew Kriesel, shortly before the election. Another employee, Dena Upshaw, was there as was her supervisor , Casmir Banaszek, Foreman Kriesel, and As- sistant Foreman Henry Scherer. Kriesel showed her a news item listing com- panies whose employees were represented by the IBEW and said that she and Upshaw were the only ones in the shop who had not signed the IBE'W petition. After some discussion , Upshaw signed the petition and left. Kriesel, speaking in a low, confidential tone, told Loduigowski that the UE was dominated by Communists and that she could sign the petition "or go downstairs or else." Downstairs was the personnel office where employees were sent for disciplinary action. Loduigowski signed. Kriesel testified that he uttered no threat to Loduigowski, expressed or implied, and that he did not whisper or speak in a low tone of voice to her. According to Kriesel, he told Loduigowski and Upshaw why Respondent wished that they would sign the IBEW petition and explained to them that by doing so they were not applying for membership in that union. After Upshaw had signed and left, Kriesel explained, he told Loduigowski that UE was influenced by Com- munists but made no reference to going downstairs. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Scherer testified that Loduigowski and Upshaw were called to Kriesel's office because they had not signed the petition and that Kriesel asked them why -they had not done so. Kriesel told the two employees, Scherer admitted, that he wanted them to vote for the IBEW as a "no" vote would favor the UE. Scherer denied that Kriesel spoke to Loduigowski in a confidential tone. Loduigowski's version of this interview is convincing and is credited. Kriesel admitted that employees were first solicited in connection with the petition by their supervisors and that those who refused to sign were referred to him. I find that after persuading Upshaw to sign, Kriesel found Loduigowski unre- sponsive to noncoervice arguments and then suggested that the price of her re- fusal was a visit to the personnel office. This argument was convincing. It was also a threat directed to Loduigowski's tenure of employment. Respondent's foremen were instructed to tell those who were on June 1 officers or stewards for the UE that the contract was terminated and that special rights granted them in that agreement were immediately withdrawn. That there would be some variation in the language used by the numerous foremen in carry- ing out this instruction was inevitable. On June 2, Foreman Bowski said to employee Samuel White, ". . . no more union in here, and I want you to know you can't use the telephone. Stay in your own department . . . Go ahead and do your own job and don't let me catch you talking to anybody.119 Foreman Schue told Edward Glab, "From now on you stay by your bench. There will be no more telephone calls for you. You are not to leave the depart- ment under any circumstances." Foreman Lumb told Ethel Conoboy to stay at her bench and to do nothing to jeopardize her job. John Kelliher, president of the UE Local, was told to remain at his job and was not permitted to use the telephone. While UE adherents were thus immobilized, Respondent was busily seeing to the circulation of IBEW petitions first among UE stewards and officers and later among the rest of the employees. While UE supporters were told to remain at their benches, Cavanaugh was diligently engaged in a number of departments in securing employee-signatures to IBEW designation cards. While "all union activities and other activities not connected with work at Stewart-Warner [were] forbidden during working hours" by Respondent's order posted on the plant bulletin boards, Dunning was, during those working hours, persuading UE stewards and officials to sign the first IBEW petition and a week later, also during working hours, other employees were importuned, urged, and sometimes threatened in an attempt to get them to sign the second. Respondent's official publication, "The Stewart-Warnerite" which was mailed to all employees, in the issues of June 10, June 24, and July 1 disparaged the UE and extolled the IBEW. On June 21 Respondent wrote all its employees urging them to vote for the IBEW and on July 1 wrote to all laid-off employees to the same effect. A few days before the election a notice was posted on some, at least, of the bulletin boards in the plant 20 reading : 0 YES This is what you will accomplish. This is your chance to throw off the yolk of Communism. After today we will be rid of the lieing, deceiving element of the UE-CIO when you vote YES in today's election. 19 White's undenied and credited testimony. 20 Respondent's guards held the keys to the bulletin boards and posted only material approved by Miller. STEWART-WARNER CORPORATION 625' Think back the incessant haggling and agitating that has taken place whenever the UE-CIO officials sat at closed meetings in Communistic domi- nated conferences. Your dues will no longer be used for spreading Com- munistic propaganda and good times for certain Local 1154 officials. YOU WILL HAVE an American union in the IBEW which is working for the welfare of every decent American worker- and which is interested in you and your family receiving steady work, a good insurance plan, ideal working conditions, top wages, and a fine vacation program. All this is possible only when you vote YES. YOU OWE IT TO YOURSELF AND YOUR FAMILY IT MUST BE YES [Spelling as in original] At the election on July 7 a majority of the votes were cast for the IBEW. On November 25, 1949, the Board withheld certification of the IBEW pending investigation of charges filed in this proceeding-and on April 7, 1950, denied a motion of the IBEW that it reconsider. About July 13 or 14, James Peka brought a supply of petitions to the plant for the purpose of securing employee-signatures. The petitions were addressed to the Regional Office of the Board and set forth reasons which allegedly invali- dated the election. Before he had solicited anyone to sign, according to Peka's uncontradicted and credited testimony, he was called to the office of Foreman Redwanz where Redwanz told him that he knew that Peka was circulating a petition. When Peka denied doing so, Redwanz said, "I have given you plenty of . . . chances here . . . you go back out there and keep your nose clean." Adrian Goret, a UE member, who was laid off or discharged on December 19 and upon whose behalf a charge has been filed with the Board in that con- nection, testified that he solicited some employees to sign the UB petition about July 13 and then was called to the office of his foreman, John Tymm. Tymm told him, according to Goret, that lie could not circulate such a petition on Respondent's property and threatened discharge if he did so. Tymm flatly denied having such a conversation with Goret. Edward Glab testified that his foreman, Schue, told him in connection with the UE petition that no such activity was permitted on Respondent's premises. Glab complained that no such restriction seemed to apply to IBEW supporters but Schue answered that he was following orders. Schue denied that he said anything to Glab about a UE petition and denied that Glab was restricted in his union activity during nonwork hours. I have no doubt that Goret and Glab testified truthfully 21 and that Tymm and Schue did not.- I so find. Dunning had expressed the pattern of Respond- ent's conduct toward those who supported the UE in June when he told Peka that he could not engage in union activities on Respondent's premises. Re- spondent was engaged in an "all out" campaign to replace the UE with the n I have discussed this resolution further in subsection D, infra. 953841-52-vol. 94-41 t 626 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD IBEW. Restriction of any activity tending to help the UE followed as of course. Employee Harry McDowell, a UE member and former steward and sergeant- at-arms in that organization, testified that in early August, Foreman Loechl asked, "Are you talking union business again? ... if you know what is good for you, you would not talk union business . . . because there is no such thing as UE in here any more." Loechl denied that he said anything of that nature to McDowell. The latter's testimony is believed. Glab testified further that during the fall of 1949, Foreman Schue warned him that he would "last longer" if he would be less active in behalf of the UII and that Glab was under constant surveillance. On one occasion, Schue ac- cused Glab of posting some UE stickers in the plant and warned Glab that he was jeoparidizing his job by doing so. Schue testified that he often conversed with Glab about union matters but denied that he warned him that he would be better off or more secure in his employment if he were less active on behalf of UE Glab is believed. In September Respondent posted a notice on its bulletin boards announcing an IBEW meeting. Following receipt of the Board's decision of November 25, 1949, in the rep- resentation case withholding certification from the IBEW, that organization urged Miller to extend recognition to it. Miller replied that he would not do so unless the IBEW presented satisfactory additional evidence that it was still the choice of a majority of Respondent's employees. On December 2, Charles Cavanaugh secured a number` of petitions from the IBEW, headed : We, the undersigned, employees of Stewart-Warner Corporation, hereby designate Local 1031, I B. E. W.-AFL, as our bargaining agent in all matters pertaining to wages, hours and working conditions and respectfully request the Stewart-Warner Corporation to recognize Local 1031 as such bargaining agent and to immediately commence negotiations on such 'mat- ters. . . . December 2nd, 1949. From December 2, 1949, until January 13, 1950, Cavanaugh solicited signatures to the petition. On December 16 or 17 he addressed more than 100 employees at a lunch hour meeting on the second floor of the plant in furtherance of this purpose. On December 22 he addressed another gathering of 50 or 60 employees gathered in the same place for the same purpose. On December 23, employee Joe laser was the speaker before another group in the plant. On December 23, according to Cavanaugh, Foreman Penge asked him how "things were moving." Cavanaugh replied, "slow," that two employees, Ruth Hunt and Ursella Maysead, were advising others not to sign. Penge said that he would speak to one of them but would not approach the other. Penge testified that he did inquire of Cavanaugh about the progress of the campaign but denied that Cavanaugh mentioned the names of any uncooperative individuals. I credit the testimony of Cavanaugh. About a week before Christmas, Cavanaugh protested to Miller that Vivian Miller, an active solicitor for signatures 'to the petition, had been laid off on Wednesday and told not to return until Monday. Cavanaugh represented that Vivian Miller had not worked a full week for a long time. According to. Cavanaugh, Miller replied that he would "take care of it." Miller testified that there was such a conversation and that he instructed Superintendent Leth to investigate and to correct any injustice. Leth did not testify. Vivian Miller was back at work the next day after a layoff of 1 day. STEWART-WARNER CORPORATION. 627', If Vi.h ian Miller's original layoff was for 2 days, her return after only 1 day, had passed would give some support to an inference that her recall was hastened by the intercession of Cavanaugh because of her participation in the campaign for signatures to the petition. However, there is no real evidence as to the length'--!' of the layoff given to her. Cavanaugh testified that he received a number of telephone calls in which lie was advised that the layoff was for 2 days. None;of the calls was from any agent of Respondent. I conclude that evidence support- ing the assertion that Vivian Miller was first laid off for 2 days is hearsay and thus will make no finding in that connection. Again, however, Miller's statement to Cavanaugh that he would, "take care of it," I find, meant more than a mere promise to investigate and was further evidence to Cavanaugh that Respondent was assisting the IBEW. During the period from December 2 to January 13, according to Cavanauglits credited testimony, he received 15 or 20 telephone calls at the plant from the business agent of the IBEW. On each occasion Cavanaugh took the call ii Foreman Cornell's office. On one occasion, Cavanaugh was on the telephone for 35 minutes; when the conversation ended, Cornell protested that such use on' union business was not permitted. Cavanaugh replied that Cornell should con- sult Miller and that the latter would approve. Cornell testified that he did mention the matter to Miller and that Miller said it was all right as long as the call was incoming. On January 13, Cavanaugh ceased supporting the IBEW and then, or shortly, thereafter, became a supporter of the UE In late January, he and James Peka were called to Dunning's office. Miller was present and told them, ac- cording to Cavanaugh and Peka, that there was to be a strike or a slow-down in the department where they worked and if there was, both of them would be discharged Miller testified that he warned the two on that occasion that they would be discharged if they led a slow-down or a sit-down strike and that it had been reported to him that Cavanaugh was the leader in such a plan of action. Miller's. version was supported by the testimony of Foreman Cornell and Personnel Director Muldoon. It is believed. On February 7, Cavanaugh was given a "warning slip" in connection with producing defective material on his machine Cavanaugh protested that his foreman had told him to run the material as he did. Cavanaugh's work had never previously been criticized. Peka testified in January he protested to Supervisor Motzko that Cavanaugh was soliciting signatures for the IBEW. According to Peka, Motzko replied that Peka should "watch himself" or he would be sent to the personnel office. Motzko testified that he recalled no such conversation with Peka and denied that he threatened to send Peka to the personnel office. Peka's testimony is credited. A few days later, according to Peka, he made a similar complaint to Foreman Redwanz concerning solicitation by an IBEW supporter named Fisher. Redwanz denied that Peka spoke to him about Fisher's activity. Peka's testi- mony is credited. On February 7, Peka asked Miller how it was that IBEW supporters were permitted to be so active while those favoring other unions were not. Miller replied that IBEW protagonists were not allowed special privileges ; that the prohibition against union activity (specifically group meetings during nonwork periods) was in effect during the period preceding the election only. In late January the IBEW claimed that it had been redesignated by a majority of Respondent's employees. By agreement, a Chicago police captain compared, 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signatures on the last petition with pay-roll signatures furnished by Respondent and found that a majority of the employees had signed. About January 31, Respondent recognized the IBEW. Negotiations followed. On March 16 Respondent and the IBEW entered into a contract concerning wages, hours, working conditions, and other conditions of employment to be effective until June 1, 1952. Contentions and Conclusions Respondent asserts that for a considerable period of time it became increas- ingly aware that the UE had Communist leadership. Such'charges were openly made in the plant by members of UE and local newspapers occasionally carried items to that effect In addition, reports were made to Respondent by individual employees that President John Kelliher and Steward Florence Hall were members of the Communist Party 22 and that an elected officer had been refused office be- cause she refused to join the Party. Negotiations on wages which began in April 1949 did not appear to be leading to any agreement, so for all these reasons, Respondent terminated the contract and withdrew recognition from the UE. It is unnecessary to determine here whether the contract was lawfully terminated or whether at the time recognition was withdrawn UE was in fact the repre- sentative of a majority of Respondent's employees. UE not having complied with Section 9 (f), (g), and (h) of the Act, could not invoke its sanctions. 1 Having severed its relation with UE, Respondent was under no legally en- forceable obligation to bargain with any labor organization and, of course, should have permitted its employees to select another representative, or none, as they chose. But Respondent was fearful that UE might have sufficient following among the employees to enable it to call an effective strike. and Respondent's conduct indicates its decision that the best weapon at .)land to, forestall such a development was another labor organization. The IBEW requested recognition on June 1, the day that Respondent acted to terminate the UE contract, but its claim of majority was indeed a naked one. There is no evidence in this record that it had even a single adherent among Respondent's employees before June 16 but again, there is no evidence that the IBEW then appeared on the scene by any prearrangement with Respondent. On June 16, during working hours, Dunning began calling former stewards and officials of UE to his office to get their signatures upon the first IBEW petition. Of course this supported the IBEW both literally and within the mean- ing of the Act. It is no defense to Respondent, even if true (and it was not), that the signatures were obtained merely by requesting them ; that no promises of reward or threats of retaliation were uttered in connection with the solicitation. The act of solicitation is the gravamen of the violation, not the words by which the act was accomplished. Section 8 (c) is not exculpatory of Respondent's conduct. The circulation of the second petition among Respondent's employees by its foreman and supervisors was similarly an act of support to the IBEW. A request from an employer that employees favor a particular labor organization constitutes powerful support. It can successfully be contended, no doubt, that statements of preference made by an employer accompanied by appeals to reason do not violate any section of the Act, for it is well established that an employer need not remain mute when employees are faced with a decision as to a bargaining representative .24 It has never been the law, however, that an 33 Sometimes hereinafter referred to as the Party. 23 Andrews Company, 87 NLRB 379 24N. L. R. B. v. Enid Cooperative Creamery Ass'n, 169 F. 2d 986 (C. A. 10). STEWART-WARNER CORPORATION 629 employer may constitute itself as an agent of a labor organization in order ti) bring employees into the fold. And this i§ so even if the employer bglieves that it is activated by the purest of motives and that it is, in fact, being the good shepherd 25 Respondent's appeals to its employees in "The Stewart-Warnerite," in letters, and in bulletin board notices, lacking as they did elements of coercion, did not in themselves constitute unfair labor practices. The vice in Respondent's con- duct in the aspect of the case concerned with the allegations of. support and assistance to the IBEW is that it lent its facilities to one labor organization while denying them to all others. Dunning unlawfully forbade Peka to engage in UE activities on Respondent's property-so did Redwanz 25 All employees were prohibited by appropriate notice from engaging in any union activities during working hours but these restrictions were not applied to Cavanaugh. While effectively gagging supporters of UE, Respondent's supervisors were beating the drum for IBEW. In such an atmosphere the election was held. Of course, its result establishes nothing more than that the employees bowed to Respondent's demands. The solicitation of signatures to the petitions both orally, by Dunning and many others- among Respondent's supervisory personnel, and in writing in "The Stewart-Warnerite," was in violation of Section 8 (a) (1) of the Act.as interrogation of employees as to their union preferences has always been held to be an invasion of their statutory rights. Aside from this, the persistence of Respondent's foremen in doggedly pursuing those who would not at first agree to prefer the IBEW until resistance collapsed is evidence of a determination that the IBEW would be selected and lends force to the finding that Loduigowski was threatened with disciplinary action by Kriesel unless she would sign a petition. Support of the IBEW did not end with the election. Immediately thereafter, Glab, Goret, and Peka were prevented from gaining signers to a petition to set aside the election-even during nonwork periods. McDowell and Glab were warned that they must not proselytize for their union-even during nonwork hours. Glab known to be hostile to the IBEW, was told that he was under constant surveillance and that his job tenure was precarious. But IBEW was permitted to post a notice of meeting on Respondent's bulletin boards. In December and January, the campaign for signatures for the IBEW was on. None of Respondent's supervisors participated this time but Cavanaugh and others found. their task simplified by Respondent's benevolent attitude. No suggestion was made that Cavanaugh not solicit on Respondent's premises or even that he confine his solicitation to nonwork periods. Group meetings for- bidden by the notice of June 2 were, without notice, unobjectionable again. Respondent's final acts of support were the extension of recognition to the IBEW and the signing of a contract As Respondent knew, the status of the IBEW was undetermined 27 The Board had withheld certification pending investigation of unfair labor practice charges which included an allegation that Respondent had supported the IBEW in violation of the Act. I find that by securing and by facilitating the securing of signatures to the petitions favoring the IBEW, by timing the return of Urlicks to work in order to assist the IBEW, by restricting the activities of UE supporters while encourag- ing activity in behalf of the IBEW, by extending recognition to the IBEW and w E. A Laboratories, Inc, 80 NLRB 625 ; Sioux City Brewing Company, 82- NLRB 1061. 2' Sam'l Bingham's Son Mfg. Co., 80 NLRB 1612, 1613 27 "The conclusive act of decision, . . . is the certification. Until it is taken, what precedes is preliminary and tentative." Inland Empire District Council v. Millis, 325 U. S 697, 707. 630 DECISIONS OF` NATIONAL LABOR RELATIONS BOARD -by entering into a collective bargaining agreement with that organization, Respondent supported the IBEW in violation of Section 8 (a) (2) of the Act. By such conduct, by interrogating employees as to their preferences concerning a union, by threatening the employment security of those who did not favor the IBB+ W, and by forbidding employees to engage in activity on behalf of UE during nonwork periods on Respondent 's premises, Respondent interfered with, -restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8 (a) (1) of the Act. C. Discrimination Florence Hall was employed by Respondent in 1944 and worked as a drill press operator until her discharge , March 21, 1949. She was a member of the L'E during her employment and remained one at the time of the hearing. She was on UE's executive board , a member of the negotiating committee , for a time chairman of its welfare committee , and at the time of her discharge, a depart- mental steward . She had been elected as a delegate to two or three national conventions and in 1948 attended a convention in that capacity. In March 1946, employees in her department sat at their machines for about 30 minutes after the end of a rest period refusing to work unless William Conner, .who had been elected president of the UE over the opposition of a faction sup- ported by Hall, was ejected from the plant. After the intercession of Miller, the employees returned to work and Conner remained in the plant. Hall was one of the UE stewards in the department where this occurred and admittedly told her foreman that employees would not work until Conner left. No discipline was_ imposed on her but during the contract negotiations in June 1948 , Miller remarked that she had a "black mark" against her. On March 17, 1949, Hall gave a UE dues deduction authorization card to employee Rosetta Emery and requested that she sign it. Emery made no reply. Later in the day Hall asked Emery for the card. Emery replied that she would not sign it and went on. Again that afternoon Hall asked Emery to sign and Emery again refused. In the morning of March 18 , Hall asked Emery if she was going to be the last one in the department to sign a card ; that all other JE members had done so . Emery answered that she did not intend to sign and that she could not be forced to do so. Hall asserted that Emery would still be liable for dues even if she did not sign the authorization . Emery replied that no one could get money from her if she did not want to pay it. Hall then told Emery that UE was seeking the dismissal of 20 employees from Respondent's employ because they were in bad standing. About 3 p. in . Hall was called to Miller 's office where Miller asked her if she had threatened or coerced anyone in connection with signing a dues deduc- tion card and, when Hall answered that she had not, told her that Emery had reported that Hall had threatened to have Emery discharged if Emery did not sign such a card. Hall explained that she had told Emery of UE's effort to have 20 employees discharged because they had lost good standing in the UE. Miller then asked if Hall was a member of the Communist Party and Hall refused to answer. Miller also made some reference to the work stoppage in March 1946 and asked her if she was the leader on that occasion. Hall said that she was not but that she had participated along with' the others in the department. Miller then said that it appeared that Hall had violated the contract by threatening Emery, that he would investigate , and that Hall should return on March 21 for his decision. Hall did so and brought representatives of the UE with her. Miller said STEWART-WARNER CORPORATION 631 that Hall violated a contract provision ze by ' threatening Emery, that Hall's record had been reviewed and that, although a'good machine worker, she spent too much time away from her machine with the result thither production was below standard. Miller went on to say that Hall had violated a contract provision 3 years before by the part she then played in a work stoppage and that he was 'informed that Hall was a member of the Communist Party. Miller explained that the had long known of Hall's party membership, that'she was not being discharged `for that reason but that it was a factor taken into consideration in arriving at the decision ,to discharge her. Respondent's'coiinsel stated at the hearing that Hall's allegedly coercive re- marks to Emery provided the proximate cause of the discharge. Miller's testimony concerning what was said on the two occasions differs but slightly from Hall's. According to Miller, be reminded Hall that he had pre- viously warned her that another violation of contract provisions would result in her discharge. Hall was clearly an active and- militant member of the UE and' was so re- garded, by Respondent. In March 1948, Miller told Ernest De Maio, general vice president of UR, that relations between Respondent and UE would be happier if John Kelliher and Hall were given employment that would remove them from the plant. De Maio rejected the suggestion. Of course Hall's discharge must be considered in the light of Respondent's expressed desire that she not remain its employee. But other considerations also are important. Hall had been one of the leaders in the work stoppage in March 1946 in an attempt to secure the discharge of William Conner because he was distasteful to the faction in the UE which Hall favored. This stoppage was a violation of a contract provision then in effect. Hall had been reminded that any further violation of a contract provision would result in her discharge . On March 18, 1949, Hall did threaten Emery's job security in attempting to get Emery to sign a dues deduction card which, if signed, would not have been effective until after May 8, 1949, when, the contract specifically provided, the maintenance-of-membership provision would expire. There was no clause permitting the reopening of the contract to extend the duration of that provision even if an election under the Act so to authorize was possible. Respondent appears to have weighed the factors bearing upon her discharge fairly. She had been warned; she had disregarded the warning. I will recommend that the allegation of discrimination with respect to her be dismissed.29 John Kelliher worked 18 years for Respondent as an inspector, group leader, supervisor, and- assembler and was working in the last classification when he was discharged on June 2, 1949. With the exception of 1946, Kelliher was presi- dent of UE from 1943 on. On June 2 Kelliher arrived at the plant at the usual starting time. When he entered his department his foreman, Stanley Marek, showed him the bulletins announcing the termination of the contract and the revocation of privileges formerly allowed UE officials and stewards under that agreement. Kelliher told Marek that he must telephone Miller but Marek replied that his instructions were not to permit Kelliher to use the telephone or to leave the deparment. There was further discussion in which Kelliher stressed his shock and surprise and tried to convince Marek how important it was that he, as UE's president, should be allowed to speak to management. Marek's answer was that he was following instructions. 18 Which reads : "The Union agrees on behalf of its officers and members that employees of the Company shall not be intimidated or coerced into joining the Union or continuing 'their membership therein." 11 Augusta Chemical Company, 83 NLRB 53. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelliher then asked that he be,,allowed to leave the plant and when such permission was refused, told Marek that he was in such a mental state`that lie could not work safely. To this point the testimony of Kelliher and Marek is in agreement. Marek testified that when Kelliher said it was unsafe for him to work, Marek 'offered to assign him to less hazardous work which Kelliher refused. At any rate Kelliher left the plant. When he returned the next day, he was not permitted to work but was instructed to come back on June 7 when Respondent would decide what it would do. On June 7 Kelliher reported to the plant and was interviewed by Dunning, Muldoon, and Miller. Miller reminded Kelliher that in February 1946 the latter had left the plant to picket the premises of another employer, that in March 1948 he had accompanied a large group of employees to Miller's office in a sort of mass demonstration for which he had been given a disciplinary layoff, asserted that Kelliher was an undesirable employee and, because Kelliher had disobeyed the instruction of his foreman on June 2, that he was discharged. Kelliher admitted that he had been warned on a number of occasions by Miller that further violations of the contract would result in his discharge. ,Kelliher also admitted that when he was told of his discharge, he accused Miller of trying to "bust" the UE and characterized Miller's actions as those of a fascist. Miller testified that in addition Kelliher called him a dirty rat, a scab, and a fink. Evidence that Kelliher disobeyed a direct instruction of his foreman in leaving the plant is undisputed and that Marek warned him that leaving the plant would subject him to discipline is believed. Thus Kelliher with knowledge of the possible result of his conduct elected to leave. It was not contended at the hearing that Respondent had no right so to restrict Kelliher or that Kelliher had any greater right than any employee to disregard the instructions of a foreman. These are merely surface considerations however, and are not dis- positive of the issue of discrimination. Miller, as a reasonable person, must have known that Kelliher would have been astonished at the news of the termination and inevitably would seek audience with Miller. Indeed, Miller anticipated the latter and on the evening of June 1 told Foreman Marek that he would speak to no UE representative during working hours the next day. Miller was and is sufficiently astute to anticipate Kelliher's reaction to being kept in his department unable to communicate with Miller or with officials of the UE. I believe that Kelliher acted as Miller supposed that he would ; that his leaving the plant in violation of Marek's instruction was predictable. With- out questioning Respondent's right, in general, to refuse permission to an em- ployee to leave work once he has reported, it is extremely difficult to believe that Kelliher was refused such permission for any reason other than that he was presi- dent of the UE. Marek's testimony concerning Respondent's need for Kelliher's services that day is weak and unconvincing. No doubt there was work for him to do. No doubt, also, that he could have been spared. The undisputed evidence is utterly convincing that, absent a discriminatory motivation, no em- ployer under the circumstances existing on June 2 would have refused Kelliher permission to leave the plant. I find that Respondent's refusal was motivated not by its need for Kelliher's services or to conform to established policy, but solely because Kelliher was president of the UE, an organization which Re- spondent no longer recognized. UE was not then in compliance with the filing provisions of the Act and Respondent was under no enforceable obligation to recognize-or bargain with it. The circumstance did not, however, diminish in any respect the right of employees to adhere to that organization and to enjoy STEWART-WARNER -CORPORATION 633 the full protection of the Act in so doing. Failure of the UE to comply with the statutory requirements so that it might avail itself of the procedures of the Board did not license Respondent to discriminate' within the meaning of the Act against UE members. I find that Respondent refused Kelliher permission to leave the plant on June 21 because he was president of the UE and that on June 7 it used as a pretext his disobeyal of Marek's order to rid itself of the prime figure in that organization. In so doing Respondent discouraged membership in a labor organ- ization and discriminated in• regard to the hire and tenure of employment of Kelliher in violation of Section 8 (a) (3) of the Act. D. The Communist "issue" 80 Throughout the hearing Respondent sought persistently to show that UE was an organization dominated by the Communist Party and that Hall and Kelliher and witnesses Joseph Zaucha, Glab, and Goret were Communists. My rulings permitted Respondent to show the basis for the belief which it assertedly held on March 21, 1949, that Hall was a Communist as it was stated that such belief was one of the reasons for her discharge.. l; also permitted Respondent to show the basis for its belief that UE on June 1, 1949, and before, was dominated by tile. Communist Party as the belief was asserted to be one of the reasons for the termination of the contract, an act from which, the General Counsel con- tended, an inference unfavorable to Respondent might be drawn. I sustained objections to questions asked of Hall,, Kelliher, Zaucha, Glab, and Goret, however, by which their membership in or sympathy with the Communist Party was sought to, be shown. To these rulings, Respondent's counsel excepted vigorously. In the ease of Hall, Respondent's assertion that her membership in the Party was one of the grounds of discharge,_clearly•puts only the bona fides of Respond- ent's belief in issue. If Respondent's belief. was honestly held, her nonmember- ship could not be proved to show lack of good faith. Conversely if Respondent did not have information at hand which reasonably could be said to support a bona fide belief, Hall's actual membership could not supply the deficiency. Addi- tionally, in the case of both Hall and Kelliher, Respondent claimed the right to discover their allegiance to the Party in connection with possible reinstate- went. In December 1949, Miller testified, Respondent adopted a policy of not hiring or retaining in its employ any individual who since December 1941 was a member of the Party unless Respondent was satisfied that the employee or applicant no longer held such allegiance. Hence, Respondent argued it was entitled to examine Hall and Kelliher to establish, as it claimed it could, that they were members of the Party and thus ineligible for employment. On the grounds that the question of reinstatement might never arise and that in any event it could not finally be decided at the hearing,' I sustained objections to such questions. Respondent sought to question Zaucha, Glab, and Goret concerning Party membership as affecting their credibility as witnesses. The questions to Hall and Kelliher had, too, this additional purpose. 80 Because I limited the taking of evidence in this connection to the extent shown in this subsection, Respondent argues in its brief that it was denied a fair hearing. ffi My findings dispose of the Hall case Kelliher must be considered as one whose employment never was lawfully terminated and his continued employee status will be determined by whatever nondiscriminatory policies Respondent applies to all of its employees. o 634 DECISIONS OP NATIONAL LABOR RELATIONS BOARD Respondent finds support for its position in a recent decision in,the Tenth Circuit Court of Appeals in the Fulton Bag case' There a witness Was asked if he was a Communist as bearing upon his credibility. The Trial Examiner sustained the objection to the question and the Board adopted his ruling. The court said : for the purpose of affecting his credibility, a witness may be asked on cross-examination whether he is a member of the Communist Party. Eteenpain Co-Operative Society v. Lillback, 18 F. 2d 912. The Board should have permitted the company to ask Trujillo whether he was a Communist solely for the purpose of affecting his credibility. If he admitted membership in the party, the inquiry could not properly go further. If he answered in the negative, then resort could be had to other evidence to establish the fact. . . . Even though it was error to deny the company the right to ask the witness on cross-examination whether he was a Communist, the error was a technical one ; and it would be doctrinaire to say that it affected ,M6 final action of the Board in; such a substantial and decisive manner that the order should not be enforced. One of the three justices dissented from the majority and stated that the case should be remanded for further proceedings in which the witness might be cross- examined as to such membership. The court has said it plainly enough ; the Trial Examiner should have per- mitted the answer to be taken. But the further inquiry, "why?", is not satis- fied. The Eteenpain case, which clearly is cited as authority and precedent, is not apposite. There the question ordered to be answered concerned mem- bership in a faction of the Socialist Party. As one of the parties to the action was a socialist organization, the question was a proper one as it might establish a bias or interest on the part of the witness. How it is in point in the Fulton Bag case is unclear. In the latter case, the court does not explicate its assump- tion that membership in the Communist Party is a criterion of credibility. It has often been said, I am aware, that a member of the Party will give perjured testimony if the interests of the Party are thus to be advanced. Assuming that this is so, it follows that the testimony of a Communist must be examined with great care and some skepticism if it appears that the interests of the Party are at stake. But is mere membership in the Party, standing alone, a consideration to be weighed in resolving a conflict in testimony? I think not. Surely, there must also be evidence as to Party policy in the fact situation presented and sound reason to believe that the Party is concerned in the outcome of the litigation. It would also be appropriate, if not essential, to show to what extent the witness accepts the ideological concepts of the Party and is amenable to its discipline. Such matters are indeed susceptible of proof but, once on such a byroad, the issues become multifarious and confused ; the primary inquiry here, concerning the commission of unfair labor practices by Respondent, would necessarily be suspended while the parties explored the Communist sympathies of the wit- nesses, attempted to establish that UE was an instrument of the Party, and tried to show that the testimony of the accused witnesses tended to advance the pur- poses of the UE, an organization not a party to the proceeding. It is within the sound discretion of the trier of fact to limit testimony on such collateral issues. Despite my ruling on this tangential issue,,I have found it impossible to ap-, praise the testimony of Hall, Kelliher, Zaucha, Glab, and Goret without some 31N. L. R. B. v. Fulton Bag & Cotton Mills, 180 F. 2d 68. Rehearing denied March 15, 1950. The question appears to be open in the Seventh Circuit where this case arises. STEWART-WARNER CORPORATION 635 speculation.' I have tried, and I,believe successfuily,rto assume that.;eachpia a member of the Party and that the testimony of each tended to advance,the ]Party's interest to discover if under such circumstances, I would extend to their testimony the same credit that I have. As to Hall and Kelliher, no problem exists. The testimony of neither was in Serious conflict with that of Respondent's witnesses on substantial or material issues. The findings as to them are not reached by resolving conflicts in their favor. Zaucha, Glab, and Goret were, however, in some instances flatly contradicted by Respondent's witnesses. Nonetheless, even making the postulated assump- tion, the evidence offered through them is so consistent with Respondent's conduct otherwise proved and was given with such demeanor as to merit belief. Finally, if none of the five had testified at all the ultimate conclusions in this Report would not be affected. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in con' nection with the operdtions-6f Respondent described-in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The remedy in the case of Kelliher cannot now be set forth with entire precision. As his discharge was discriminatory, he must be made whole for any loss of pay he may have suffered as a result by payment to him of a sum of money equal to that which he would have earned during the period ; of discrimination following his discharge to the date that the discrimination ceases, less his net earnings33 during such period. Ordinarily, for the purpose of mak- ing an employee whole, discrimination is deemed to cease upon a proper offer of reinstatement. A complication arises here in that Respondent adopted a per- sonnel policy in December 1949 under which, it asserts, Kelliher is ineligible for" further employment. Whether this be the fact is a question which must be re_ solved by the parties at the compliance stage. If Respondent then can satis- factorily show that for nondiscriminatory reasons uniformly applied, Kelliher's employment would have been terminated in any event in December 1949, Re- spondent will be required only to make him whole in the fashion described above from June 3, 1949, the date when his discharge was effective, to that date in December. If, again, he is now eligible for employment in accord with Respond- ent's nondiscriminatory standards, reinstatement to his former or substantially equivalent position 3{ must be offered him and he must be made whole to the date of the offer. Having found that Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, it will be recommended that Respondent cease and -desist -therefrom and post ap< propriate notices. u Crossett Lumber Co, 8 NLRB 440, 497-8 34 The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOAIID Having found that Respondent has unlawfully supported the III141W, it will be recommended that it withdraw recognition from the IIIEW until such time as it may be certified by the Board and disavow and cease giving effect to the contract of March 16, 1950' Having found no violation of the Act in the discharge of Florence Hall, it .*ill' be recommended that the allegation in the complaint to that effect be dismissed. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following : CONCLUSIONS OF LAW . 1. International Union of Electrical, Radio, and Machine Workers, CIO, United Electrical, Radio, and Machine Workers of America, Local 1154, UE, and International Brotherhood of Electrical Workers, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John Kelliher, thereby discouraging membership in it labor organization, Respondent .has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By giving support to the International Brotherhood of Electrical Workers, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By the unfair labor practices referred to in paragraphs 2 and 3, above, and by interrogating, threatening, and coercing its employees concerning their disposition toward labor organizations, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (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. The discharge of Florence Hall was not in violation of the Act. [Recommended Order omitted from publication In this volume.] "I Respondent is not required to retract any substantive benefits given to employees under the contract. Pacific Maritime Association, et al., 89 NLRB 894. Itbss LUMBER COMPANY and LUMBER AND SAWMILL WORKERS UNION, LOCAL No. 3030, AFL, PETITIONER. Case No. 36-RC-590. May 17, 1951 Decision and Order Upon a petition duly filed tinder Section 9 ((.) of the National Labor Relations Act, a hearing was held before Howard A. McIntyre, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' i At the hearing a representative of International Woodworkers of America, CIO, moved to intervene, but stated that that organization's interest in the case would be disclosed only if the Board were to rule that the production and maintenance employees or the Employer's White City and Prospect mills constituted a single appropriate unit. Accordingly, the hearing officer denied the IWA's motion, but invited its representative to remain at the hearing, and advised him that he would be notified of the Board 's decision. 94 NLRB No. 95.