Eureka Vacuum Cleaner Co.

In the Matter of EUREKA VACUUM CLEANER COMPANY and UNITED ELECTRICAL , RADIO & MACHINE WORKERS OP AMERICA, C. I. O. Case No. 7=C-1312.-Decided July 23, 1946 DECISION AND ORDER On October 8, 1945) the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, 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 cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and supporting briefs. On April 9, 1946,. the Board heard oral argument at Washington, D. C., in which the respondent and the UE-CIO participated., The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. 'The Board has considered the Intermediate Report, the respondent's exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the additions and modifications noted below. 1. The Trial Examiner found that the respondent, in acceding to MESA's demand for the discharge of Walter Russell, Charles Mor- rison, Joseph Bilker, and Harriette Sanders, violated Section 8 (1) and (3) of the Act. We agree. As indicated in the Intermediate Report, these employees fell into disfavor with MESA because of their conspicuous opposition to the strike and their later affiliation with the UE-CIO. MESA, there- fore, suspended their membership in that organization and demanded their discharge. The respondent, however,, admittedly aware of the reason for their suspension and the unlawful character of a discharge for such reason, at first vigorously resisted MESA's demands. Ac- ' Chairman Herzog, who was not present at the oral argument, has read the official transcript thereof. 69 N. L. R. B., No. 107. 878 EUREKA VACUUM CLEANER COMPANY 879 cordingly, when the respondent thereafter agreed on March 16, 1944, as part of the settlement of its controversy with MESA, to grant MESA maintenance of membership, it took the significant precaution to prevent the use of maintenance of membership as a device for effecting the discharge of Russell. Morrison, Buker, and Sanders, by specifically exempting them from the operation thereof. Yet, despite such exemption, the respondent, 3 weeks later, after several attempts or threats by MESA adherents to evict these employees,2 terminated their employment, on MESA's demand, promising to reinstate them "If at some future time [they could] adjust [their] affairs with the M. E. S. A." Thus, instead of providing these employees with reasonable protection against threatened evictions by enforcing its shop rules or adopting other safeguards, the re- spondent yielded to MESA's economic pressure and discharged them, thereby, in effect, penalizing them for failing to remain in good stand- ing with MESA although the contract specifically exempted them from such requirement. To justify its treatment of these employees, the respondent con- tends that they were "laid off" in order to avert interruption with critical w ar production demanded by the Army Air Forces. Clearly, these employees were not engaged in acts detrimental to the war effort; quite the contrary, it was their opposition to the unprovoked strike of February 4, 1944, and their resultant affiliation with the UE-CIO which engendered MESA's antagonism toward them. Apart from the availability to the respondent of other courses to prevent inter- ference with war production, the law is well settled that "when it is once made to appear from the primary facts that the employer has violated the express provisions of the Act, we may not inquire into his motives," even where it is shown that the employer "has not wil- fully violated" the Act.' In this case, it is clear that the discharge of these employees was attributable to their known protected activity, and hence was violative of the Act. Under the circumstances, we find, like the Trial Examiner, that the respondent, by discharging Russell, Morrison, Buker, and Sanders on April 15, 1944, discriminated against them in regard to their hire and tenure of employment, thereby discouraging membership in the 2 According to the testimony of the respondent's officers, i1IESA informed the respondent that it could not control its members and insisted upon the discharge of Russell, Morrison, Baker, and Sanders, regardless of their exemption from maintenance of membership. 3N. L. R. B. v. Hudson Motor Car Company, 128 F. (2d) 528, 533 (C. C. A. 6); see N. L. R. B. v. Star Publishing Company, 97 F. (2d) 465, 470 (C. C. A. 9), in which the ninth Circuit Court of Appeals noted: "The Act prohibits unfair labor practices without regard to the factors causing them. . . . It permits no immunity because the employer may think that the exigencies of the moment require infraction of the statute. In fact nothing in the statute permits or Justifies its violation by the employer." See also N. L. R. B. v. Gluck. Wren-ing Company, 144 F. (2d) 847 (C. C. A. 8). 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD UE-CIO and encouraging membership in MESA, and that by the above-described -conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The Trial Examiner found that the discharge of Philip Sukrow and Myrtle Hawes was violative of the Act. The respondent concedes that they were discharged because of their expulsion from MESA but contends that the discharges were lawful because they were made pur- suant to a valid maintenance-of-membership agreement with MESA, requiring membership in that organization as a condition of employ- ment.4 However, we, like the Trial Examiner, find that the agreement does not protect these discharges. .The circumstances in this case fully meet the tests laid down in the Rutland Court and subsequent cases; for rendering inoperative closed-shop or maintenance-of-membership agreements as a defense to discharges because of expulsion by the contracting union for activity on behalf of a rival union. Thus, the record herein shows, and we find, as did the Trial Examiner, that the respondent knew that Sukrow and Hawes were expelled from membership in MESA because of their activity on behalf of its rival, the UE-CIO; More- over, it is apparent from the record, and we find, that such rival union activity was primarily designed to secure for the employees an opportunity at the appropriate time to exercise their statutory right to "change their collective bargaining representative for the next contractual period" and to "affiliate with and campaign for any union for the next period." 6 As fully discussed in the Intermediate Report, within several days after the termination of MESA's strike on February 7, 1944, and prior to the execution of the supplemental maintenance-of-membership agreement of March 16, 1944, both Sukrow and Hawes joined the UE-CIO and thereafter continuously participated in its organizational campaign until their discharge on April 3 and May 1, 1944, respectively. Thus, the most current rival union activity of Sukrow, which contributed to his expulsion, occurred about 2 months before the terminal date of the agreement and 6 weeks before the operative date of its automatic renewal clause, and Hawes' occurred within about a month of the terminal date and 2 weeks be- fore the renewal date. That their efforts were intended to effect a change in the bargaining representative at the end of the contract 4In Section III B, subdivision 1, of the Intermediate Report, the Trial Examiner inad- vertently stated that a UE-CIO representative prepared a letter for Hawes addressed to the respondent in which she disputed MESA's claim that she was not a member in good standing. The record discloses , however, and we find, that this letter was drawn by the respondent's Industrial Relations Director , George W. Phister. 5 Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587; 46 N. L. R. B. 1040; Matter of Southwestern Portland Cement Company , 65 N. L. R. B. 1. Matter of Rutland Court Owners, Inc., 44 N. L. R. B . 587, at pp . 587, 594, 596. EUREKA VACUUM CLEANER COMPANY 881 term is readily apparent not only from the timing of their activity but also from the continuing nature of such activity, the UE-CIO's letters of February 24 and April 8, 1944, requesting the respondent not to negotiate another agreement with the Union, and the timely filing by the UK-CIO of a representation petition on April 28, 1944. Under all these circumstances, we find that the principle enunciated in the Rutlatld Court case is applicable herein and that the discharge of Sukrow and Hawes was in violation of Section 8 (1) and (3) of the Act. Moreover, irrespective of the applicability of the Rutland Court principle, we find on other grounds that the maintenance-of-member- ship agreement does not constitute a valid defense to the discharge of Sukrow and Hawes. In our opinion, the circumstances under which the maintenance-of-membership agreement was concluded forewarned the respondent that MESA would use, as it did, the agreement as a de- vice for effecting the discharge of employees because of their activity against MESA and on behalf of the UE-CIO. Thus, as fully dis- cussed in the Intermediate Report, the respondent knew that a. number of its employees opposed the strike of February 4 and became active in the UE-CIO's membership drive at the plant,' that the UE-CIO was claiming to represent a majority of the employees, and that, for such reasons MESA was intent upon eliminating from the plant this dissident group. To this end, MESA sought the discharge of the four named employees discussed above, and, on several occasions, openly and with impunity threatened to evict physically from the plant several (if these employees. Indeed, on the very day before the execution of the maintenance-of-membership agreement, the respondent found it necessary to send Sukrow home after MESA had also forcibly at- tempted to eject him from the plant. Notwithstanding this state of affairs, the respondent capitulated to MESA's demands for mainte- nance of membership. While it is true that the respondent specifically exempted from coverage thereunder the four above-mentioned em- ployees, it failed to accord similar protection to Sukrow and I3wes, even though the respondent also had reason to believe that MESA would use maintenance of membership as a means of penalizing them for their opposition to the strike and their activity on behalf of UE- CIO. In these circumstances, we are convinced, and find, that under our holding in the Wallace case," the maintenance-of-membership ' In proceedings before the Regional War Labor Board, mentioned in the Intermediate Report, the respondent submitted a brief in which it attributed the UE-CIO's "agitation" at the plant to MESA', "wholly unwarranted strike of February 4." 8 Matter of Wallace Corporation . 50 N. L. R. B. 138 , enf'd 141 F . ( 2d) 87 (C. C. A. 4), aff'd 323 U . S. 48. For reasons appearing in Matter of The Cliffs Dow Chemical Company, 84 N. L. R. B. 1419 , we disagree with the respondent 's view that the Wallace case is dis- tinguishable on the ground that there the agreement was with a company -dominated and assisted labor organization. 701592-47-vol . 69--57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement is not valid within the meaning of the proviso to Section 8 (3) so as to serve as a defense to the discharge of Sukrow and Hawes. Accordingly, we find, as did the Trial Examiner, that the discharge of Sukrow and Hawes was violative of the Act. THE REMEDY Normally in cases in which an employer has unlawfully discrimi- nated against employees by discharge, in addition to affirmative re- lief, we order 'the employer to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. How- ever, in the instant case, the respondent discharged the six named employees not to satisfy any illegal purpose of its own; rather, in terminating their employment, the respondent yielded to economic pressure exerted by MESA, or honestly believed, though mistakenly, that it was required to do so by the terms of the maintenance-of- membership agreement. Under such circumstances, and in view of the absence of any evidence that danger of the commission of other unfair labor practices is to be anticipated from the respondent's con- duct in the past, we shall not enjoin the respondent from the com- mission of any and all unfair labor practices. Nevertheless, in order to effectuate the purposes of the Act, we shall order the respondent to cease and desist from the unfair labor practices found. In addi- tioli, like the Trial Examiner, we shall order the respondent to offer all the discriminatorily discharged employees, except Morrison, re- instatement with back pay and vacation allowance, in order to ef- fectuate the policies of the Act. With respect to Morrison, who testified at the hearing before the Trial Examiner that he did not de- sire reinstatement, we shall only order, as the Trial Examiner recom- mended, reimbursement for loss of pay and vacation allowance, Nothing in our order, however, shall be taken to proscribe conduct of the respondent protected by the proviso of Section 8 (3) of the Act. It appears that, following Russell's termination of employment, lie entered the armed forces of the United States. If Russell has since been discharged from the armed forces, we shall order the respondent to offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges .9 We shall also order the respondent to make Russell whole for any loss of earnings he has suffered or may suffer by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages, together with vacation pay, if any were 9If at the time of the respondent's offer of reinstatement, less than 90 days have elapsed since Russell's discharge from the armed forces, the respondent shall hold its offer of rein- statement open for a reasonable period, but in any event not less than the remainder of the 90-day period following his discharge from the armed forces. EUREKA VACUUM CLEANER COMPANY 883 due him, during the periods (1) from the date of the respondent's discrimination against him to the date of his entry into the armed forces of the United States, and (2) from the date of his discharge from the armed forces of the United States to the date of the offer of reinstatement by the respondent, less his net earnings during these periods. If Russell has not been discharged from the armed forces of the United States, we shall order the respondent, upon applica- tion by Russell within ninety (90) days after his discharge from the armed forces, to offer him immediate and full reinstatement to, his former or a substantially equivalent position, without prejudice, to his seniority and other rights and privileges. We shall also order the respondent to make Russell whole for any loss of earnings he has suffered or may suffer by reason of the respondent's discrimina- tion against him, by payment to him of a sum of money equal to the amount which lie normally would have earned as wages, together with vacation pay, if any were due him, during the periods (1) from the date of the respondent's discrimination against him to the date of his entry into the armed forces of the United States,10 and (2) from a date five (5) days after his timely application for reinstatement, if any, to the date of the offer of reinstatement by the respondent, less his. net earnings during these periods. ORDER Upon the entire record in the case, and pursuant to Section 10 (e) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Eureka Vacuum Cleaner Company, Detroit, Michigan, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Ma- chine Workers of America, C. I. 0., or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or by discriminating in any other manner in re- gard to their hire and tenure of employment, or any term or condi- tion of employment ; (b) Interrogating its employees concerning union membership, ac- tivities, or sympathies. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Joseph Buker, Harriette Sanders, Philip Sukrow, and Myrtle Hawes McQuisten immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; 10 This sum shall be paid immediately to Russell, 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer Walter Russell reinstatement in the manner set forth in the section of the Decision and Order entitled "The Remedy"; (c) Make whole Joseph Buker, Harriette Sanders, Philip Sukrow, and Myrtle Hawes McQuisten for any loss of pay they may have suf- fered by reason of the respondent's discrimination against them, by payment to each of them of a sure of money equal to the amount that such employee normally would have earned as wages, including vaca- tion pay, from the date of the respondent's discrimination against such employee to the date of the respondent's offer of reinstatement, less such employee's net earnings during said period; (d) Make whole Walter Russell for any loss of pay he has suffered by reason of the respondent's discrimination against hirn, in the man- ner set forth in the section of the Decision and Order entitled "The Remedy" ; (e) Make whole Charles Morrison for any loss of pay he has suffered by reason of the respondents discrimination against him, by pay- ment to him of a sum of money equal to the amount which lie normally would have earned as wages, including vacation pay, from April 15, 1944, the date of the respondent's discrimination against Iiinr, to Oc- tober 15, 1944, the date he was no longer available for employment, less his net earnings during said period; (f) Post at its plant at Detroit, Michigan, copies of the notice at- tached hereto, marked "Appendix A." Copies of such notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive clays thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that such notices are not altered, defaced, or covered by other material; (g) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not discourage membership in United Electrical, Radio & Machine Workers of America, C. I. 0., or any other labor EUREKA VACUUM CLEANER COMPANY 885 organization, by discharging, laying off, or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or condition of their employment, except insofar as such conduct is protected by the proviso of Section 8 (3) of the Act. We will not interrogate our employees concerning union mem- bership, activities, or sympathies. We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make them whole for any loss of pay, including vacation allowance, suffered as a result of the discrimination. Walter Russell Harriette Sanders .Joseph Buker Philip Sukrow Myrtle Hawes McQuisten We will make whole Charles Morrison for any loss of pay, including vacation allowance, suffered as a result of the dis- crimination. EUREKA VACUUM CLEANER COMPANY, Employer. Dated------------ By----------------------------------------- (Representative ) ( Title) NOTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. 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 Mr. David Karasick. for the Board. Dykema, Jones & Wheat, by Mr . Elroy O . Jones, of Detroit, Mich., for the re- spondent. Miss Frances Sayler, of Detroit, Mich., for the UE-CIO. STATEMENT OF THE CASE Upon an amended charge duly filed on June 1, 1944, by United Electrical, Radio & Machine Workers of America, C. I. 0., herein called the UE-CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint on July 13, 1945, against Eureka Vacuum Cleaner Company , herein called the respondent, alleging that the respondent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (3) and Section 2 ( 6) and (7 ) of the National Labor Relations Act, 49 Stat. 449, herein 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the Act. Copies of the complaint and amended charge, accompanied by notice of hearing thereon, were duly served upon the respondent and the UE-CIO. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that the respondent: (1) by discharging certain named employees on or about certain specified dates, and thereafter refusing to reinsate them be- cause of their union membership or other concerted activities, thereby discourag- ing membership in or adherence to the UE-CIO;' and (2) from about February 1944 and at various times thereafter, to and including the date of the complaint, by advising, urging, and warning its employees against membership in the UE-CIO, and by interrogating its employees concerning membership and activi- ties on behalf of that union, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent's amended answer admits the allegations concerning the nature and extent of its operations, denies the commission of any unfair labor practices, afli;'inatively avers that it "terminated" tie employment of Philip Sukrow and Myrtle Hawes on the respective dates alleged in the complaint, pursuant to the provisions of a maintenance of membership agreement with another labor or- ganization, and that it "laid off" the remaining employees named in the com- plaint on April 15, 1944, "until such time as they could return to work without causing confusion in the plant.", Pursuant to notice, a hearing was held at Detroit, Michigan, on July 31, August 1, 2, 3, 4, and 6, 1945, before Irving Rogosin, the Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by a representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues. At the conclusion of the Board's case, and following the motion of counsel for the Board to amend the complaint, counsel for the respondent moved to dismiss with re- spect to the allegations of discrimination against Walter Russell, Joseph Buker, Harriette Sanders, and Charles Morrison, on the ground that the evi- dence failed to establish that these employees were discharged, as alleged in the amended complaint, but, on the contrary, established that they were tem- porarily laid off.' The motion was denied with leave to renew the same prior to the close of the hearing. The motion was subsequently renewed and was similarly denied. Motion of counsel for the Board to conform the complaint to the proof with respect to formal matters, not affecting the substantive issues, was granted. A similar motion was granted with respect to the respondent's amended answer. At the conclusion of the evidence, counsel for the respondent again renewed his motion to dismiss the complaint with respect to the employees 1 The employees named and the dates of the severance of their employment a.s alleged in the complaint are : Philip Sukrow , April 3, 1944. Walter Russell, April 6, 1944. Joseph Buker, April 7, 1944. Harriette Sanders, April 7, 1944. Charles Morrison, April 7, 1944. Myrtle Hawes , May 1, 1944. The complaint alleges that the respondent "laid off" the employees involved. At the close of the Board's case, counsel for the Board moved to amend the complaint by alleging that these employees were discharged rather than laid off . The motion was granted over the objection of the respondent, to whom leave was given to amend its answer ac-ordingly. The respondent filed an amended answer prior to the close of the hearing. 2 Counsel for the respondent conceded the propriety of the amendment to the complaint with respect to Philip Sukrow and Myrtle Hawes, both of whom the respondent admittedly discharged. EUREKA VACUUM CLEANER COMPANY 887 above named upon substantially the same grounds. Ruling on the motion was reserved. The motion is hereby denied. All parties were afforded an opportunity to argue orally upon the record and to file briefs with the undersigned. Counsel for the Board and for the respondent argued orally upon the record; only the respondent filed a brief. Upon the entire record in the case,' and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Eureka Vacuum Cleaner Company, a Michigan corporation, with a principal office and plant in Detroit, Michigan, which was engaged, prior to the war, in the manufacture, sale, and distribution of electric vacuum cleaners, is engaged in the manufacture, sale, and distribution of implements of war for the armed forces of the United States Government. During the year 1944, the respondent purchased, for use in its manufacturing operations at its Detroit plant, materials, equipment, and supplies valued in excess of $1,000,000, of which approximately 75 percent was received from sources outside the State of Michigan. During the same period, the respondent manufactured and shipped from its Detroit plant, fabricated and partially fabricated products, for use as implements of war by the armed forces of the United States, valued in excess of $1,000,000, ap- proximately 75 percent of which was shipped to points outside the State of Michigan. The respondent concedes that it is engaged in commerce within the meaning of the Act.' II. ORGANIZATION INVOLVED United Electrical , Radio & Machine Workers of America is a labor organiza- tion affiliated with the Congress of Industrial Organizations , admitting to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events' On June 26, 1940, following an informal cross-check between the respondent and the Mechanics Educational Society of America, herein called the MESA, the respondent granted it exclusive recognition and entered into a collective bar- gaining agreement with that union. Subsequent agreements were thereafter executed and, effective June 1, 1942, an agreement was entered into for a term of one year and from year to year thereafter unless either party should give notice in writing of a desire to amend within a specified time prior to the annual expiration date' The contract further provided that in the event the parties 3 On October 2, 1945, an order was entered correcting the transcript of the testimony in accordance with a stipulation of the parties , dated August 17, 1945, as well as the order by the undersigned. ' The above findings are based upon the allegations in the complaint and the admissions in the respondent's answer, as well as the concession by counsel for the respondent at the hearing. There is no substantial controversy concerning the facts hereinafter related and, un- less otherwise indicated , the findings made are based upon the evidence of the participants who testified concerning the events which transpired or upon stipulations between the parties at the hearing. 0In addition to conventional exclusions , this and the subsequent contract excluded em- ployees in the polishing, buffing and plating department , not here involved , from the appro- priate ult. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were unable to agree upon proposed amendments on or before June 1 in any year, the contract should expire on that date. This contract, as amended by supple- mentary agreements dated June 25, 1943, August 19, 1943 and March 16, 1944, remained in effect until June 1, 1944, on which date a new contract became operative. By the terms of the supplementary agreement of June 25, 1943, membership in the MESA was made optional , but employees were urged to decide, on or before July 10, 1943, whether they would join or remain members of that union. The parties to the agreement expressed the opinion , however , that all employees who were members on July 11, 1943, should remain members for the duration of the contract' On the afternoon of February 4, 1.944, the MESA notified its members at the respondent's plant of its intention to call a strike at that plant in connection with a dispute at a plant of another company in which the respondent was not involved.' The following morning, at a meeting of the MESA called for that purpose, a majority of the members voted to strike. A substantial number of empolyees who were then members of the MESA, including the employees alleged in the complaint to have been discriminatorily discharged, refused to join in the strike. These employees , led by a committee including Charles Morrison, Walter Russell, Philip Sukrow, and Joseph Baker, alleged herein to have been discrim- inatorily discharged , organized a back-to-work movement and held a meeting at a local hall later that day. A resolution was drafted condemning the action of the leders of the MESA in calling the strike and demanding that the members of the MESA be permitted to resume production. A further meeting was ar- ranged and held the following Monday morning, February 7, and another resolu- tion was drafted at that time, again vigorously condemning the strike . The res- olution pointed out that no dispute between the Union and the respondent was involved, that the strike was detrimental to the war effort, and had been called in violation of the MESA constitution . It called upon all employees to return to work at their regular shifts on Tuesday , February S. Copies of these resolutions were furnished to the press and radio and received publicity in the newspapers. The language of the agreement follows : It is agreed between the Company and the Union [the MESAI that the State and Federal laws provide clearly that membership or no membership in any union is en- tirely voluntary on the part of any employee . However, in the interest of harmonious relationships and in the interest of the all out war effort , all employees should deter- mine whether they should join or remain members of the Union on or before the 10th day of July , 1943. Both parties hereto believe that all employees of the Com- pany who are members of the Union on the 11th day of July, 1943, should remain members of the Union for the duration of this contract . Any employees of the Com- pany who are not now members of the Union or who resign from the Union on or before July 10, 1943 , shall be absolutely free to do so without any penalties , coercion or influence of any name or nature whatsoever. Although the MESA attempted to have this supplementary agreement construed as pro- viding for maintenance of membership , the respondent refused so to construue or apply it. The supplementary agreement of August 19, 1943, provided for a vacation pay allowance according to a specified formula . The supplementary agreement of March 16 , 1944, is discussed hereinafter. 8 According to a copy of a telegram from Mathew Smith, National Secretary of the MESA , appearing in a copy of the respondent's brief before the National War Labor Board XI, dated February 19, 1944, Case No. 111-6550-D, the MESA acknowledged that it had no dispute with management , but stated that, because of its difficulties with the National War Labor Board and the National Labor Relations Board , a work stoppage by its mem- bers might result at the respondent's plant . According to witnesses for the Board , as well as a statement in the respondent's brief above referred to, the strike at the respondent's plant was called in protest against the refusal of the N . L. R. B. to postpone a hearing in connection with an election at the Will ys-Overland plant in Toledo. EUREKA VACUUM CLEANER COMPANY 889 On February 7 the strike was terminated, and the employees returned to work the following day. While the MESA strike was in progress, the UE-CIO instituted an organiza- tional campaign at the respondent's plant . Leaflets were distributed outside the plant and membership was solicited among the employees. The employees al- leged to have been discriminatorily discharged joined the UE-CIO during this period or shortly thereafter, and participated in its activities.' On February 9, 1944, the MESA notified the respondent by telegram that Wal- ter Baker, Robert Harter, Charles Morrison, Walter Russell, Joseph Buker, and Harriet Saunders 10 were no longer "in good standing" with the MESA and should lie "removed" as employees in accordance with the contract." The respondent declined to accede to this request on the ground that the supplementary agree- inent of June 25, 1943. did not constitute a maintenance of membership agree- ment. As a result of this dispute, the matter was certified to the Regional War Labor Board." During the pendency of the proceedings before the WLB, as a result of negotiations between the respondent and the MESA, in which Captain Irving G. Mulitzi3 of the Army Air Forces Materiel Command, representatives of the U. S. Conciliation Service, and the State Labor Mediation Board participated, the case was settled. By the terms of this settlement, the MESA, on March 7, 1944, pledged itself in writing to guarantee uninterrupted production pending the outcome of its petition for approval of a maintenance of membership agree- ment, and to continue the guarantee upon condition that the WLB approve such maintenance of membership agreement. Under date of March 16, 1944, the respondent and the MESA executed the supplementary agreement to which ref- erence has already been made. The agreement provided for maintenance of membership in good standing, by all employees who were then, or might there- after become, members, as a condition of employment, for the duration of the 1ontract. The no-strike and maintenance of production pledge of March 7 was specifically reaffirmed by the MESA. Expressly exempted from the operation of the maintenance of membership provision, however, were five of the six em- ployees named in the telegram from the MESA to the respondent on February 9." This agreement, however, was not approved by the WLB, nor was tiny directive issued by that agency. Meanwhile, by letter dated February 24, 1944, the UE-CIO notified the re- spondent of its claim to represent a majority of its employees, and cautioned it against any action which might "infringe upon the rights of your employees to belong to a union of their own choice." B The introductory leaflet in the campaign , a copy of which was introduced in evidence, hears the date February 5, 1944 . According to the membership application cards introduced in evidence, Morrison , Russell, Sanders, and Sukrow joined the UE-CIO on February 8, Hawes, on February 11, and Buker on February 14. ° Correctly named in the complaint as Harriette Sanders. " Reference was apparently intended to the supplementary agreement dated June 25, 1943, the pertinent provisions of which are quoted in footnote 7, supra. 12 It was in this connection that the respondent's brief before the Regional War Labor Board, above referred to, was filed. The sole issue, as stipulated between the parties to that proceeding , and as stated in the brief, was : (1) The Unions (sic) [the MESA, Local #61 request that the Company discharge six employees who are no longer ii: good standing in the Union . The Company re- fuses such request. " Then Lieutenant Multiz. " The provision referred to is as follows : 3. For purposes of the protection of the Company and express understanding between the Union [the MESA] and the Company, it is agreed that the following 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 3, 1944, the respondent "terminated" Philip Sukrow's employment, at the request of the MESA, allegedly for failure to maintain his membership in good standing. This was followed on April 6, by the discharge of Walter Russell, and, on April 15 by the discharges of Charles Morrison, Joseph Buker, and Harriette Sanders, under the circumstances hereinafter disclosed. On April 8, 1944, the Secretary of MESA Local #6, notified each of the last four named employees, by telegram, that they were "invited" to appear before the Executive Committee on Tuesday evening, April 11, to appeal their "suspension" from the MESA. Copies of these telegrams were forwarded by the MESA to the respondent. On April 8, the UE-CIO again wrote to the respondent, advising that it had been designated by a majority of the respondent's employees as their collective bargaining representative, and requesting that the respondent refrain from entering into any contractual relations with any labor organization until a deter- mination of the bargaining representative by the Board. On April 28, 1944, the UE-CIO filed a petition for investigation and certification of representatives with the Regional Office of the Board." On May 1, 1944, as in the case of Philip Sukrow, the respondent discharged Myrtle Hawes, upon the representation by the MESA that she was no longer a member in good standing in that organization. B. The discriminatory discharges 1. The discharges of Philip Sukrow and Myrtle Hawes for alleged failure to maintain membership in good standing in the MESA Philip Sukrow was employed by the respondent in March 1943 as a tool and gauge grinder, and continued in that position until April 3, 1944,.the date of his discharge. About a month after he commenced his employment, he became a member of the MESA, but held no ofrwe or position in that union. Early in the afternoon of Friday, February 4, 1944, while Sukrow was at work, Wilbert A. Costello, 'e chief steward and chairman of the shop committee of the MESA, entered the toolroom and announced that the members of the MESA were to go on strike at 2:30 o'clock that afternoon. When Sukrow questioned the prudence of this course, Costello replied that that would be decided at a meeting to be held the following morning. Discussion ensued among various groups of the employees. Sukrow and some employees unfavorably disposed to the strike left their department to ascertain whether other employees at the plant were complying with Costello's instructions. Sukrow returned to the toolroom shortly employees are at the elate hereof suspended members of the Union and are not now required to maintain membership in the Union as a condition of employment Walter Baker Walter Russell Charles Morrison. Joseph Buker Harriet Saunders (sic) Provided, however, that if any of the employees named above shall hereafter apply for reinstatement and the Union shall lift their suspension, they shall be subject thereafter to the maintenance of membership agreement. (According to Secretary and Former Director of Industrial Relations George W. Phister, Walter Baker entered the armed services prior to the eviction from the plant of the em- ployees alleged herein to have been discriminatorily discharged ; Robert Harter, the re- maining employee, whose discharge had been demanded by the MESA in the telegram of February 9, was later discharged for reasons not here material. In any event, there is no allegation or contention that either of these two employees was discriminatorily discharged.) 15 The petition, filed in Case No. 7-R-1757 on the day following the filing of the original charge herein, was subsequently withdrawn on about July 18, 1944, inasmuch as the UE-CIO was unwilling to waive its charges in order to proceed with the petition. 16 Also referred to in the record as Bert Costello. EUREKA VACUUM CLEANER COMPANY 891 thereafter and continued to work the remainder of the day. With the exception of Melvin Duquette, a union steward, all the employees in the toohoom remained at work for the balance of the day. At 10 o'clock the following morning, a meeting was held of the members of the MESA at Odd Fellows Hall for the purpose of taking a strike vote. During dis- cussion on the question, Sukrow, among others, spoke in opposition to the strike. A vote was finally taken, following which it was Announced that a majority had voted in favor of the strike. A number of those present who disapproved of the action taken, congregated outside the hall after the meeting and decided to have a meeting of their own later that afternoon. Prominent among these were Morri- son, Buker, Russell, and Sukrow. A meeting was held later that day at the Danish Brotherhood Hall attended by about 15 or 16 employees. The back-to-work resolution, previously mentioned, was drafted and given to the press. Substan- tially the same group met the following Monday morning, and drafted the second resolution. Sukrow was designated, with Buker, on a committee to confer with the Mayor and the Police Department to arrange protection for the employees desiring to return to work. On February 7, the strike ended, and the employees returned to work the following day. On February 8, Sukrow signed a membership a,lplieation card with the UE- CIO. Thereafter, he attended union meetings of that organization and attempted to enlist the membership of other employees. On the morning of March 15, 1944, he met linker, by prearrangement, and attempted to report for work. The events that followed in connection with the attempt of the MESA employees to exclude them from the plant, and to evict them later that morning, are related hereinafter in connection with the discharge of Buker. Sukrow's testimony with respect to those incidents sub- stantially corroborated Buker. Later that morning, Phister, at the insistence of the MESA members sent Sukrow, Russell and Buker home, and told them to remain away from the plant until notified they were to return. Phister assured them that they would lose no pay and would probably remain out of the plant for only a few days. Several days later, Pbister notified Sukrow and Buker to return to work. On March 30, Sukrow received a letter from the Secretary of MESA Local #6, dated March 27, notifying him that "Charges of conduct detrimental to the M. E. S. A." had been preferred against him and "ordering" him to appear before the Executive Board on Thursday, March 30, 1944, at 8: 00 p. in." Late that night, upon his return to his home, he replied to the letter, explaining that he had not received it in time to appear before the Executive Board. On the same day, the Secretary of the MESA wrote to the respondent, advising it that Sukrow was no longer a member of that union, and requesting that he be "released" from the respondent's employ in accordance "with the provisions of our agreement with you." The Secretary of the MESA replied to Sukrow's letter on April 3, acknowledg- ing receipt of his letter of March 30, explaining his failure to appear before the Executive Board. The letter stated that the writer was not in a position to do anything about the matter, but advised that if he desired to appeal his ex- pulsion, he could do so by appearing at the next meeting of the Executive Board on the following Thursday at 8: 00 p. in. Sukrow did not appear for the reason, 17 According to Sukrow's testimony, which the undersigned credits, the letter was addressed to his former residence, at which he had not resided for several weeks, and was delayed in reaching him. The letter was received by his wife and, inasmuch as he did not return to his home until about 10:00 p. in. of that day, he did not personally receive it until then. Sukrow further testified credibly that he had previouusly notified the MESA steward of his change of address at the time he moved. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated by him at the hearing, that he feared for what might happen to him if he did. On April 3, Sukrow was summoned to Phister's office and informed by Assist- ant Works Manager May that, although he regretted the necessity for doing so, because of the complaint of the chief steward and the instructions from the MESA, the respondent was discharging him because of his activity in be- half of a rival union.1' Sukrow protested, but May informed him after some discussion that the respondent had no choice. Sukrow thereupon left the plant. According to Sukrow, the first intimation he received that he might be dis- ciplined by the MESA was early in March, when, without stating any reason, the steward refused to accept h'is dues allegedly upon instructions from Chief Steward Costello. Sukrow's dues were last paid for February 1944. Following his discharge, Sukrow received a letter from the respondent, dated April 3, informing him that, inasmuch as be had been certified by the MESA as a member in good standing as of 'larch 16, and the .espondent had been noti- fied that he was no longer a member in good standing, he was "being termi- nated" as of the date of the letter, in accordance with the provisions of the agree- ment with the MESA. On April 18, the respondent again wrote Sukrow, notify- ing him to call for his tool box. Sukrow was paid to April 3, but received no va- cation pay, although he claimed to be entitled to it by reason of the fact that he had worked the minimum number of hours required under the MESA contract with the respondent. On July 7, 1944, Sukrow joined with Myrtle Hawes, whose case is discussed. hereinafter, in a letter to the Chairman of the Regional War Labor Board, re- questing the appointment on an arbiter in connection with the dispute regarding his union membership. No action resulted from this, and Sukrow was not rein- stated at any time subsequent to his discharge." Myrtle Hawes McQuisten 20 was employed by the respondent on January 23, 1941, and at the time of her discharge on May 1, 1944, was employed as an assem- bler in the Pioneer Department . Shortly after her employment commenced, she joined the MESA. With other employees in her departmnt, she refused to join in the strike called on February 5, 1944, but did not participate in the back-to-work meeting held later that day. On February 11, 1944, she signed a membership application card in the UE-CIO, and later engaged in union activities in behalf of that union, visiting homes of various employees of the respondent on her own time. Her activities were generally known throughout the department in which she worked and were, according to her uncontradicted and corroborated testi- mony, brought to the attention of Committeewoman Elsie Velett of the MESA 2' Is Although Sukrow, in his direct testimony , stated that Phister and May were in the office and that it was Phister who discharged him, be testified , on cross-examination and in rebuttal , that he was uncertain whether Phister was there on that occasion . Inasmuch as Phister and May testified credibly , and without contradiction , that Phiser was out of the city at the time, and that May handled Sukrow's case with Ray Hufford, an employee in the personnel department , it is found that May discharged Sukrow and made the state- ments attributed by Sukrow to Phister. 10 The letter, as well as the reply from the Chairman , is discussed in connection with the discharge of Myrtle Hawes. 20 Myrtle Hawes was married at the time of the hearing. To avoid confusion , she will be referred to by her maiden name , except in the formal sections of this report. 21 According to Hawes' uncontradicted testimony, which the undersigned credits, and which was corroborated by Pearl Cooper and Pearl Wellington , employees in the same de- partment , employee Marie Crawford had informed Velett that Hawes had been active in behalf of the UE-CIO. Hawes further testified that, about a month before her discharge, employee Della Peterson observed some union literature in Hawes' purse, and that she had been informed by other employees, including Velva Phillips and Hariette Sanders, EUREKA VACUUM CLEANER COMPANY 893 On the afternoon of April 28, Committeewoman Velett and Steward Keith Alway, both of whom were employed in other departments, informed her that they had received a telephone call from MESA headquarters that she was wanted there. Hawes inquired as to the reason, and when Velett informed her that she did not know, Hawes refused to go. On that day the secretary of MESA Local #6, %vrote Phister that Hawes had refused to report to the MESA office for "a hearing," that she was, therefore, suspended from the union, and requested that she be "removed from your payroll until she has cleared herself of all charges and the suspension has been removed." The next day, Saturday, Hawes was notified by her foreman to report to the personnel department. She did not report on that day. The following Monday morning she reported to Phister. He informed her that he had "bad news" for her and handed her a letter, dated that day, May 1, informing her that, inasmuch as she had been "certified" by the MESA as a member in good standing as of March 16, 1944, and the respondent had been notified that she was no longer in good standing in that union, she was being "laid off" as of that date under the provisions of that agreement. The letter further advised her that if she dis- puted the fact that she was "not a member of the MESA in good standing," she should notify the respondent in writing and that such dispute would be sub- mitted to an arbiter appointed by the NWLB. After reading the letter, Hawes asked Phister for an explanation , assuring him that she had done nothing to warrant her dismissal , and that she was a paid-up member in good standing in the union. Phister replied that lie did not know any more about it than she did and that there was nothing he could do. Hawes thereupon left the plant. Later that day, after conferring with a representative of the UE-CIO, Hawes replied to the respondent's letter, stating that she disputed the MESA's claim that she was no longer a member in good standing in that organization, and requested that the respondent submit the matter to an arbiter to be ap- pointed by the NWLB in accordance with the agreement with the MESA. Hawes had never been notified directly prior to May 1, or at any time there- after, that the MESA had intended to expel her, that she had in fact been ex- pelled, or that she had any right of appeal from such expulsion. Her union membership dues had been paid for April 1944, to Committeewoman Velett, and dues for May had not as yet been collected on the clay of her dismissal by the respondent 2a She was paid her wages to the date of her termination, but re- ceived no vacation pay to which she claimed to be entitled. On July 7, 1944, a letter, signed jointly by Philip Sukrow and Myrtle Hawes, was addressed to the Chairman of the Regional War Labor Board, advising that they had been "suspended" from employment by the respondent on April 3 and whose testimony corroborated Hawes', that Peterson had been observing her, and was in- forming employees in the department that Hawes had UE-CIO application cards in her possession which she was distributing. 22 On April 19, 1944 , Myrtle Hawes had signed a printed form acknowledging receipt of the form as notice that the MESA had submitted her name as a member in good standing as of March 16 , 1944 , and that , under the terms of the agreement of March 16 , 1944, be- tween the respondent and the MESA , she would be required to maintain her membership, for the duration of the contract, as a condition of employment. u Phister generally corroborated Hawes' testimony concerning the circumstances sur- rounding her dismissal . He further testified that, following the interview above related, lie communicated with Chief Steward Costello and informed him that Hawes claimed she had never been notified of any hearing in regard to her expulsion from the MESA, and that Costello agreed that she would be given an opportunity to be heard . He did not know, however, whether such a hearing was ever held . He also acknowledged that he told Hawes that he would ascertain whom she could see at the WLB with regard to the appointment of an arbiter , and that he later furnished her with this information. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1, respectively, under the provisions of the maintenance of membership agreement of March 16, 1944, following the MESA's representation that they were no longer members in good standing. The letter called upon the W1,11 to designate an arbiter to adjudicate the dispute, in accordance with the provisions of the maintenance of membership agreement that upon "any dispute arising as to withdrawal or good standing of any such member, the question shall be adjudicated by an arbiter appointed by the [NWLB] whose decision shall be final and binding on the [MESA], the employee and the Company." On August 11, 1944, the Chairman of the Regional War Labor Board notified both these employees by letter that, in view of the fact that the maintenance of membership provision had not been directed by the WLB, the Chairman was free to exercise his discretion as to whether he would appoint an "arbitrator." The letter fur- ther observed that the writer had been advised that the dispute was merely be- tween the employees named and the MESA, "the Company not having raised any question before us as to the propriety of the action," and that lie was, there- fore, declining to act. Hawes has not been offered reinstatement by the respondent since. 2. The discharges of Morrison, Russell, Buker, and Sanders Charles .Morrison comiueneed working for the respondent as a cutter and tool grinder in January 1942, and continued in that position until April 7, 1944. On April 15, 1944, his services were terminated. He joined the MESA shortly after his employment commenced and, in about August 1943, was elected steward of the toolroom. Several months later he was elected plant committeeman, and relinquished his office as steward. He acted as plant committeeman until about January 1944, when he was an unsuccessful candidate for the office of chief steward, to which Wilbert Costello was elected. He thereafter held no office or position in the MESA. On the afternoon of February 4, 1944, when Chief Steward Costello and Plant Committeeman Keith Aiway 2 ordered the toolroour employees out on strike, Morrison was one of the employees who protested strenuously. Later, with other tool room employees opposed to the strike, lie followed Costello out of the de- partment to other departments, and, in Costello's presence, engaged in discus- sions with various employees, urging theni to remain at work. The following morning, Morrison reported to work, and at 10: 00 o'clock at- tended the MESA strike meeting. During the meeting' llie, among others, spoke from the floor in opposition to the strike. Thereafter, he was an active partici- pant in the back-to-work movement, and was elected chairnnau of that committee. With Russell, he was designated on the committee to confer with management in connection with the back-to-work movement. On Monday afternoon, following the second meeting of the back-to-work committee, lie and Russell called on Director of Industrial Relations Phister and his assistant, Ray Hufford, and exhibited to them, a copy of the second back-to-work resolution. Phister and Hufford approved of the resolution and informed Morrison and Russell that they had sent telegrams to the striking employees asking them to return to work, and that they were contemplating setting up public address systems in the plant over which the committee could urge the employees to return to work. The discus- sion was interrupted by a telephone call for Phister who left and returned shortly to announce that Costello had telephoned that the strike had been terminated. 24 Spelled "Allway" in the record. The spelling adopted by the undersigned Is that appearing on the supplementary agreement dated March 16, 1944 , to which his name appears as one of the signatories in behalf of the MESA Shop Committee. 25 The meeting was opened by Costello and George white, secretary of MESA Local #6 and Matthew Smith "presided." EUREKA VACUUM CLEANER COMPANY 895 In addition to his activities in opposition to the strike and his participation in the back-to-work movement, already mentioned, Morrison assisted in the drafting and preparation of releases to the press. On February 17, 1944, there appeared in each of two newspapers published in Detroit a letter to the editor, over the name of Morrison, deploring the recent strike at the respondent's plant and the consequent loss of production, and urging the employees not to heed any future strike call by "Matt" Smith.' These, and other newspaper articles concerning the strike and the hack-to-work movement, were a subject of considerable dis- cussion among the employees at the plant and, because of the attendant publicity, undoubtedly calve to the notice of m,mageulent. On February 8, 1944, Morrison signed it membership application card in the UE-CIO. Thereafter, he discussed that union with employees and solicited their membership at the plant, except on one occasion, on his own time.` His name also appeared on it campaign pamphlet, dated March 6, 1944, as chair- mail of the UE-CIO organizing committee. On February 23, 1944, at about 6: 30 it. in., as lie was leaving for work, Mor- rison was attacked and seriously injured by two unidentified assailants at his garage at the rear of his home.' Morrison summoned the police who removed him to the hospital where he was treated and discharged later in the day .^ He remained out of work for about 2 weeks, returning to the plant on March 9.- Morrison worked the remainder of that week, and the following week was seat by the respondent to the Carboloy Manufacturing Company to take a special training course. On the morning of April 6, a group of between 15 and 20 employees, led by Steward Francis LaPlant of ono. of the other departments, entered the tool- room and undertook to evict Russell, ender circumstances hereinafter related. Russell finally left the plant that day at the respondent's insistence, following this episode. The next day, April 7, Morrison learned that the same group of employees intended to evict him and Buker from the plant. Morrison notified ZO Below the letter to the editor, appearing in the Detroit Times for that date, after Morrison's name, there appeared the following in bold type : EDITOR'S NOTr.-Mr. Morrison was chairman of a Back-to-Work Committee follow- ing the MESA strike at Eureka. 27 Tile exception occurred shortly after the strike, when he was approached by an em- ployee from another department, who informed him that he wished to rejoin the CIO, and asked Morrison for a membership application. Morrison told him that there were some cards in his tool box and that he could "help himself" if he wished. The man did so and, according to Morrison, showed the card to Committeewoman Velett. As a result of this in- cident, Phister imposed a penalty of a 2-day lay-off, notwithstanding Morrison's explana- tion, which, according to Morrison, Fluster considered a subterfuge. Although there was no provision in the printed shop rules, at the time, prohibiting solicitation for union mem- bership at the plant, the MESA contract provided against organizational activity during working hours which would "interfere with the business of the Company or hinder the normal flow of production." However, no penalty was established for violation of this provision, as was the case with respect to violation of shop rules. According to Morrison, the other employee involved, who was violating a shop rule prohibiting an employee from leaving his department, was not disciplined. 28 About a week after the employees returned to work, following the strike, as Morrison and Russell were leaving the plant after work, they were confronted by a crowd of approxi- mately 100 employees milling about the plant, among whom they recognized Orville Plake, a National Representative of the MESA. Two of their number, whom Morrison identified, approached him menacingly. Morrison and Russell retreated into the plant and telephoned the police. By the time of their arrival, the crowd had dispersed, but Plake, who was still at the scene, refused to leave, and was removed in a police car. The police then escorted Morrison and Russell to their cars, after taking their names and addresses, and Morrison and Russell left without further incident. 20 A newspaper account of the attack upon Morrison appeared in one of the local news- papers on February 25 and was the subject of considerable discussion among employees of the plant, and undoubtedly came to the attention of the respondent. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman Williamson, who informed him that he would communicate with Director of Industrial Relations Philter. At a conversation later that morn- ing in the toolroom between Phister and Morrison, in the presence of William- son, Phister informed Morrison that a woman from another department30 had been evicted that morning, with resulting "confusion" in the plant, and re- quested that Morrison leave the plant until things could be straightened out. Phister assured him that he would be paid while he was out of work and that he would be recalled to work. He further informed him that he was going to tell Buker the same thing. Phister also stated that if Morrison and Baker waited until the group came in and evicted them, the group would demand that their tool boxes be removed, but that if they left voluntarily their tool boxes would be permitted to remain. Morrison acceded to Phister's request and thereupon left the plant. On April 8, 1944, Morrison received a telegram, signed by the Secretary of MESA Local #6 "inviting" him to appear before the Executive Committee on the following Tuesday, April 11 at 6: 00 p. in., to appeal his suspension from the MESA 3' At no time prior to the receipt of this telegram had Morrison been notified by the MESA of any intention to expel or suspend him." He made no reply to the telegram for the reason, stated by him at the hearing, that he relied upon the provisions in the maintenance of membership agreement of March 16, 1944, which expressly exempted him from its operation, and for the further reason that he had never been notified to appear in connection with any sus- pension. Under date of April 15, 1944, the respondent notified Morrison by registered mail that, "because of confusion among the employees" while he was employed by the respondent, he was being "laid off until such time as [he could] return to work without causing confusion in the plant." The letter continued, "If at some future time you can so adjust your affairs with the M. E. S. A. that you can return to work without upsetting the employees of the Company, the Company will then be glad to reinstate you." It called attention to the respondent' s effort to protect Morrison's position by exempting him from the operation of the main- tenance of membership agreement of March 16, but added that "the officials of the Union [MESA] have advised the Company officials that they are unable to enforce this provision of the agreement to the extent of preventing disturbances by members if you were to be continued in your employment." Morrison was paid his wages to April 15, but received no vacation pay ' He has not been reinstated since, but does not now desire reinstatement, inasmuch as he has been in business for himself since October 15, 1944. 3° This apparently referred to Harriette Sanders. 31 A copy of this, as well as of the telegrams to Russell , Baker, and Sanders , was mailed by the MESA to the respondent , with a covering letter , on the same day. 22 Morrison 's membership dues in the MESA were paid through February 1944 . Early in March , Steward Duquette collected Morrison's dues for that month , but refunded them to him shortly thereafter upon Chief Steward Costello 's instructions. No contention was made at the hearing that any of the employees alleged to have been discriminatorily dis- charged were suspended or expelled from the MESA for non -payment of dues. Moreover, under the constitution and bylaws of the MESA, a copy of which was received in evidence, no action may be taken to suspend a member for non-payment of dues, levies and assess- ments until the member has been in arrears for more than 3 months , and suspension does not become effective unless the arrears are not paid within the ensuing 30 days thereafter. Although locals of the MESA are permitted , under the constitution , to promulgate more stringent rules regarding arrears , there was no showing that Local #6, here involved, had done so. a3 See section hereinafter entitled , "The remedy." EUREKA VACUUM CLEANER COMPANY 897 Walter Russell was employed by the respondent in the toolroom and last worked on April 6, 1945.' The extent of his activity in opposing the strike, his participation in the hack-to-work movement, his election as secretary of the hack-to-work committee, and designation on the committee with Morrison, to confer with management, have already been mentioned. On February 8, 1944, he signed a membership application card with the UE-CIO. On March 15, following the incident of the preceding day, with respect to Sukrow, already mentioned, and with respect to Buker, related hereinafter, he was sent home from the plant. With them, he was returned to work the following Monday. On the morning of April 6, 1944, a group of 15 to 20 employees, including Steward Francis LaPlant of another department, entered the toolroom and, in the presence of two guards who had been stationed in the toolroom several days prior to this incident, insisted that Russell leave the plant. May arrived on the scene and told the group that they were not to use any violence, and that the guards were there to protect Russell." Morrison suggested that the represent- ative of the Army Air Force be notified, but May advised that they await Bernard's return. Morrison and Russell returned to their machines, and the group followed them, demanding that Russell be evicted. In the meantime, when Hufford arrived in response to a telephone call, about 75 to 100 persons had congregated around Russell at his machine, insisting that they would not work with Russell and demanding that he leave the plant. When Bernard finally re- turned, he instructed Hufford and May to send Russell home for the day. As Hufford and May, assisted by one of the guards, escorted Russell out of the office, the crowd demanded that Russell remove his tool box. Hufford attempted to argue the point, but as the men were adamant, he assigned an employee "to clear" Russell's tool box with the crib attendant, and informed Russell that his tool box would be retained in the personnel office. Hufford, May, and the guard thereupon escorted Russell from the plant. On April 8, 1944, the MESA sent Russell a telegram, identical in content with the one sent to Morrison, inviting him to appeal his suspension from that organization. On April 15, 1944, Russell was notified by the respondent, by a letter, similar to the one sent to Morrison, that be was being laid off.' Russell was inducted into 34 Russell , who was in the armed services at the time of the hearing, did not testify. The findings with respect to him are based principally upon the credible testimony of Morrison . The record does not disclose the date on which Russell commenced his employ- ment with the respondent. 3s Assistant Works Manager May and Raymond Hufford , assistant to Director of Indus- trial Relations Phister , testified that they learned , several clays prior to this incident, "yia the grapevine," that the MESA members at the plant intended to evict Morrison and Russell . This was discussed with Works Manager Gray Barnard , and it was decided that May, Hufford , and Superintendent Pearlman , of the machine shop, would "patrol" the department to prevent any outbreak . The guards were stationed there for the same pur- pose. This "constant vigilance" apparently prevented any outbreak until the episode under discusssion. 3" According to May, he was "momentarily " out of the plant when the incident occurred, and returned after Russell had left for the employment office. May did , however, testify that he was present (luring the incident which occurred on the following day with regard to Morrison . In view of the similarity of these occurrences , and especially in view of the fact that Hufford also placed May at the scene of the incident regarding Russell, it is found that lie was present , as testified to by Morrison, and that May probably confused the two episodes. 37 Although there was no direct evidence on this point, it is assumed that Russell, like Morrison, was paid through that date. The record failed to disclose whether Russell was entitled to vacation pay or whether he in fact received it. 701592-47-vol. 69-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the armed forces on April 17, 1944, and was in the service at the time of the hearing.' Joseph Buker was employed by the respondent as a tool and die maker on Feb- ruary 2, 1939, and was discharged on April 15, 1944. Several months after he commenced his employment, lie was transferred to the experimental research engineering department, in which lie worked until the time of his discharge. In May 1940 he jointed the MESA, and shortly thereafter was elected to the shop or bargaining committee, a position which lie held for 3 years. About a month after the MESA organized the employees of the respondent's plant, he was elected delegate to the National Administrative Council, the highest ranking official body of the MESA, a position which he held for 2 years. From July 1941, until the end of that year, lie held the office of vice-president of Local #6, an amalgam- ated local of the MESA, covering 38 plants, including that of the respondent. He was an unsuccessful candidate for vice-president in 1942, but was elected to the Executive Board and held that office for one year. In 1943, he was defeated as a candidate for plant committeeman, and has held no office in the MESA since. On the afternoon of February 4, 1944, when Chief Steward Costello and Committeeman Alway notified Buker of the contemplated strike, Buker pro- tested and suggested that a meeting be held that evening to vote on the question. After some discussion with Costello, Buker firmly declined to go out on strike until a meeting was held. Thereupon Costello remarked, "You'll go out of here and you'll go out on your ear." Costello left, and Buker went to the toolroom where the employees had already been notified of the impending strike. Shortly afterward, with other dissident toolroom employees„ Buker went to Depart- ment 17, where Costello and Committeewoman Velett were present, and engaged in a discussion with employees in that department. Some of them asked Buker's opinion regarding the proposed strike, and he advised that a meeting be held before taking any action.?9 The groups of employees dispersed, and Buker re- turned to his department where lie continued to work for the rest of the day. Buker attended the strike meeting the following morning, and spoke in opposi- tion to the strike. He was among those who sponsored and participated in the back-to-work movement. With Sukrow, he was on the committee which conferred with the Mayor and the police department to provide protection for employees desiring to return to work. On February 14, Buker signed a membership application in the UE-CIO. Thereafter, he discussed the matter of changing affiliation, with members of the MESA at the plant on his own time and distributed membership application cards in the UE-CIO. Early in March, he attended meetings of that organiza- tion, at which change of union affiliation was discussed, presiding at the first of these meetings. On the afternoon of March 14, 1944, a group of about 50 employees headed by Costello, none of whom were employed in the engineering department , attempted to oust Buker from the plant. Costello instructed Buker to take his tool box with him, but Buker refused . Buker was roughly handled by the crowd, as a result of which he sustained injuries. He finally sought refuge in the experi- mental department, where he locked himself in for the remainder of the day. 38 This finding is based upon the credible testimony of Morrison, who was a close friend of Russell's and who testified that he attended a farewell party for him on the occasion of his induction. - According to Morrison's uncontradicted testimony, which the undersigned credits, while Costello was instructing the employees to leave the plant, his attention was directed by Committeewoman Velett to Buker, who was attempting to persuade a group of women to remain at work. Morrison, who was standing near Costello at the time, testified that he heard him remark, as Costello indicated Buker, "We will get him for that." EUREKA VACUUM CLEANER COMPANY 899 He telephoned the FBI from there and, at their suggestion , communicated with the local police. When he left the plant that night he observed that a crowd had congregated at the corner near his parked car. Buker walked to the police car stationed outside the plant aud, after it conversation with the officers, entered his car, and drove to the police station. As prearranged, the police followed him in the patrol car to the station where he was advised to swear out a warrant for the persons whom he recognized, who had engaged in the fracas at the plant.40 The following morning, in accordance with arrangements made the preceding evening, Buker and Sukrow met near the plant to go to work. The two entered the plant and rang in their time cards together. As they were walking along the shipping dock, 4 or 5 employees, including Costello, attempted to prevent them from continuing into the plant. Sukrow left to summon assistance. Buker started to leave and as he approached the plant entrance, Sukrow returned with a police lieutenant and some of his men. Buker and Sukrow were escorted into the plant by them, and were met inside by a sergeant of plant protection who finally escorted them to their departments. Later that morning, Director of Industrial Relations Phister sent for Buker. Phister was not there when Buker arrived and found Sukrow, Russell, Assistant Works Manager May, and Foreman Williamson, of the tool room in the office. May informed Buker, and the employees present, that there had been "a lot of trouble" in the plant again, and asked them to leave the plant. Buker remon- strated with May, stating that he saw no reason for them to leave, and that the persons who had attempted to evict them were the ones who should be disciplined for infraction of the rules." Meanwhile, Phister had returned to his office and, while the others were present, Chief Steward Costello came in and announced that [Mathew] Smith would not meet with Phister that day until he "[got] rid of these three men." Phister left, and when he returned, persuaded Buker, Russell, and Sukrow to leave, assur- ing them that they "would not lose any time" and would be paid for such time as would be worked by other employees in their respective departments during their absence. He further informed them that he did not know how long it would take to adjust the matter, but that he would send for them. The three men thereupon left the plant. The following Friday, March 17, Phister telephoned Buker and informed him that the matter "was fairly well ironed out" and told him to report to work the following Monday.42 Buker returned to work on that date, March 20, and a day or two later Phister sent for him while he was at work. May and Foreman Potter were in the office when he arrived. During the ensuing conversation, Phister asked Buker who the men were who were organizing in the plant. Buker informed him that he did not know who the leaders were. Phister thereupon ''" On March 16, 1944, Buker swore out warrants for the arrest of Costello, Pat Hansen .and Francis LaPlant, charging them with assault and battery . Following a hearing on March 27, the Court dismissed the cases with a reprimand to the defendants . Both the issuance of the warrants and the subsequent dismissal were reported in the local press and were the subject of considerable discussion among employees at the plant. 41 The respondent 's Shop Rules, in effect at the time , to which Baker referred, provided 9. No employee of the Company is to leave Company grounds during working hours or go to any other department than his own without permission from the foreman except in line of duty. On first violation to this rule, the employee shall be warned : on second violation employee shall be laid off for 2 days and on third violation employee shall be dismissed instantly. ' It will be recalled that the maintenance of membership agreement, which expressly -exempted Buker and the employees named therein , was executed under date of March 16, 1944. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Buker that Buker was "in kind of a ticklish spot," and urged him to "avoid any trouble or argument." Buker assured him that he would, and that he would cooperate in every possible way. On this occasion, Phister also asked him if he thought the UE-CIO would succeed in organizing the pla tit. When Buker replied in the affirmative, l'hister remarked, "We have a good union and good relations here. Why do they want to change?" 41 On April 7, 1944, Buker was summoned to the office of Chief Engineer Pierce. He arrived at the office, accompanied by Foreman Leon Wipple, and found Phister and May there. Pbister informed Baker that he regretted that he found it necessary to send him home again. Buker protested, stating that he had been doing his work and "minding his own business." Wipple confirmed his state- ment. Phister then informed him that Harriette Sanders had just been evicted from the plant ; that "they" " intended to evict him and Morrison from the plant at noon, and that Morrison had already agreed to leave "peacefully." After some discussion, Buker inquired how long he would be expected to remain away from the plant. Phister replied that he did not know, that it might be a week or a month, but that he would not lose anything while he was out and would be recalled as soon as the matter was' straightened out. Buker finally left the plant on that day. Several days later, Buker too received a telegram from the MESA, dated April 8, 1944 " "inviting" him to appear before the Executive Committee on the evening of April 11 to appeal his suspension. This was the first advice Buker had received from any source of the intention of the MESA to suspend him from membership in the MESA.41 Under date of April 10, Buker replied to the telegram, declining to appear before that body because of the unfair treatment he had received in the past, and stating that he preferred to continue work- ing under the existing provisions of the maintenance of membership agreement, quoted in the letter, which exempted him and the other employees named from its operation.'' Buker heard nothing further from the respondent until he received a letter dated April 15, 1944, identical in content with the one received by Morrison, in which he was notified that he was being "laid off" for the reasons, and under the conditions, with respect to reinstatement, already stated with respect to '3 Although Phister denied generally ever stating to anyone that the respondent had a good union at the plant, lie testified, with respect to the statement attributed to him by Buker, "I don't recall the conversation I had with Mr. Buker in which he makes that state- ment." The respondent, in effect, maintains that the statement attributed to Phister was in fact contrary to the existent circumstances, and that it is, therefore, improbable that he made such a statement. While it is evident that the relations between the MESA and the respondent may have been unsatisfactory, from the respondent's viewpoint, particularly in view of the numerous work stoppages, the strike, and other disputes, especially with reference to the employees here involved, the undersigned is persuaded, upon the entire record, that Phister made the statements attributed to him in this connection, probably in an attempt to avoid any open conflict with the MESA. It will be noted that Phister was not asked about, nor did he deny, the other statements ascribed to him by Buker, including the inquiry as to whether Buker thought the UE-CIO would succeed in organizing the plant. The statements, moreover, are corroborated by the credible testimony of Sanders, herein- after related, concerning similar statements and inquiries made by Phister to her, during the same period. 44 Apparently referring to the committeemen and members of the MESA at the plant. 45 Buker was unable to explain the delay in the receipt of the telegram. 46 The last payment of membership dues in the MESA by Buker covered the month of 'March 1944. About a week after this payment was made, Steward Duquette attempted to refund these dues, but Buker refused to accept them. 4' According to a notation appearing on the copy of this letter, received in evidence, copies of the letter were sent to the Regional Director of the Board, Mr. George Phister, and Lieutenant Mulitz. EUREKA VACUUM CLEANER COMPANY 901 Morrison. The respondent has not offered Baker reinstatement since that date. linker was paid his wages to April 15, 1944, but did not receive vacation pay.' Harriette Sanders was first employed by the respondent in June 1929 and continued in its employ until 1931. In December 1939, she returned as an assembler in the Pioneer Department, where she worked until April 7, 1944. shortly after her return to the plant in 1939, she joined the MESA, and be- came a "steward," for the first time, in 1942. For an interval of about 2 to 2% months during this period she occupied the position of forelady, later re- turning to her former position at her own request. In October or November 1943, she was again elected steward, and held that position at the time of the strike in February 1944. In April 1943, the UA.W-CIO" attempted to organize the employees at the respondent's plant. Sanders became active in the campaign, solicited member- ship, and distributed approximately 100 membership application cards. During this period, following it charge by MESA members that she was working for the UAW-CIO, and a demand that she leave the plant, a group of employees, including Bellmore, Velett, and Costello attempted to oust her. When con- fronted by a demand for her discharge, Director of Industrial Relations O. H. Golberg, Phister's predecessor, refused maintaining that the respondent did not have a closed-shop agreement with the MESA. He assured Sanders that she would not be discharged for activity in behalf of another union, provided she observed the company rules, and did not engage in union activity upon company time. Sanders, however, was assigned to a department in another building. Members of the MESA committee persisted in their attempts to evict her from the plant, insisting that they would not work with her, that they would call a strike, and "get" her afterward. During this period, Costello was in communication with Mathew Smith, and both were insistent in their demands that the respondent discharge Sanders.60 Notwithstanding this, Golberg re- sisted their demands and assured Sanders, through a field examiner of the Board, with whom Sanders had consulted, that she "had a job" and that the respondent would furnish her protection while she was in the plant. When Committeewoman Velett called on Sanders to collect dues thereafter, and Sanders remarked that she had concluded that she had been suspended from the MESA, Velett told her to overlook the matter. Sanders told her that she was f8 See discussion hereinafter under section entitled "The remedy." `9International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., not to he confused with the UE-CIO, the charging union. "A copy of the minutes of a conference between Director of Industrial Relations Gol- berg and members of the shop committee of the MESA, dated April 19, 1943, in the form of a letter addressed to the attention of Mathew Smith , furnished by Golberg to Buker at the time, and introduced in evidence, indicates the firmness with which the respondent adhered to its position at the time with respect to its refusal to discharge Sanders. The following excerpts from the letter are significant : (1) the law positively forbids us from discharging an employee because of Union activity. Your subsequent discussion of the possibility of ejection of employees against their wishes for being offensive to your Union makes it necessary for us to remind you of specific prohibitions in this regard. (2) the written agreement with you provides that you wil not "in any way coerce or use forceful means of any nature to compel employees of the Company who do not choose to join the Union, to do so. (3) the law forbids us to use any coercive measures in the matter of the employee's choice of Union membership and, thus, it is illegal to act, either as an accessory or in a passive role, in such ejection of employees against their wishes. The letter continued, that the respondent was engaged in vital war production under con- tracts requiring the maintenance of plant protection, and that "these guards are charged with responsibility to preserve order on the premises." 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in favor of the CIO and would vote for that union , and that if Velett was willing to accept dues under those circumstances . Sanders was willing to pay them . She thereupon paid her dues and continued in good standing until February 1944. On the morning of February 4, 1944 , Sanders, who was a steward at the time, was summoned by Velett to a meeting of the committee members and stewards of the MESA in the basement of the respondent 's plant . Costello, presiding at the meeting, informed them that he was awaiting advice from Mathew Smith in Toledo, and that if the Board granted an election at the Willys -Overland plant, Smith intended to call a strike in all "his" plants. Costello instructed those present at the meeting to notify the members in each of their respective depart- ments. Sanders returned to her department and, after obtaining permission from her foreman , notified the employees in her department of the contemplated strike. Later that day , Sanders informed Velett that she did not think that the employees in her department were going out on strike, and that Velett could talk to them if she wished . After Sanders returned to her department , Velett appeared, and Sanders again informed her that the employees in her department were not going on strike . Velett remarked that Sanders ought to go out anyway, but she declined and offered to turn in her steward 's badge. Velett did not accept it, but Sanders did not wear it thereafter . The following day, Sanders attended the MESA meeting at which it was voted to strike. Sanders returned to work on the following Monday morning, after the strike ended. On the following Wednesday, Velett informed her that she had received orders to obtain Sanders ' steward's badge, and announced that she was expelled from the MESA and would not be permitted to work at the plant thereafter. This was the first information Sanders had received that she had been expelled from that union. Sanders thereupon surrendered her badge to Velett. Later, when Sanders asked her foreman whether he had made any complaint against her to management , he emphatically assured her that he had not, and that she had not teen discharged. Sanders related what had transpired between her and Velett, and the foreman informed her that she was not required to be- long to a union in order to work at the plant. Nevertheless, one of the other stewards persisted in telling employees in her department that Sanders would be discharged. As a consequence of this , Sanders went to the personnel office to verify this rumor , and was assured that she had not been discharged. On February 8, Sanders had signed a membership application card in the UE- CIO. Sometime between that date and the time of her later discharge, Director of Industrial Relations Phister sent for her and, in the presence of her foreman, stated that lie had been discussing her with her foreman , who had advised him that she was one of the best employees in his department and that she "minded her own business." In view of her previous activity in behalf of the UAW-CIO, however, Phister informed her, he was requesting her, and other employees, to refrain from any conduct which might "in any way incite a quarrel among the employees about the CIO." At another conversation during this period, Phister asked Sanders her opinion as to the outcome of any election between the UE- ('10 and the MESA." On the morning of April 7 . 1944, a group of about 25 employees, led by Com initteewomen Margaret Schei. Velett, and a steward of another department, ap- proached Sanders while she was at work, and undertook to evict her from the plant. During this encounter, employee Pearl Wellington requested a foreman to send for the guards . but he declined , remarking that it would be no use. Mean- 61 Phister , in his testimony , did not deny making these statements. EUREKA VACUUM CLEANER COMPANY 903 while, Superintendent Murray, who was engaged in conversation with Velett, did nothing to interfere. Sanders finally left for 1'hister's office. During the conference with Phister, Assistant Works Manager May, who was present, informed Sanders, in response to her inquiry as to what the MESA "had against" her, inasmuch as, according to her, they had admitted that they knew she had not been working in behalf of the UE-CIO, that he believed that it was because she had attended a CIO meeting. After some discussion, Sanders agreed to leave, informing Phister that she intended to go home to obtain the "slip," in which the respondent and the MESA had agreed that she was not required to belong to the MESA, and would consult the NLRB for advice. Phister informed her that she was still on the pay roll, and that he would communicate with her as soon as they could settle the matter. She thereupon left the plant. The following morning, Sanders returned to the plant for her pay check. She asked Phister if any decision had been reached concerning her, and again in- quired if he knew what the MESA's complaint against her was. He replied that he thought the MESA felt that she should not have surrendered her steward's badge on the day of the strike, but should have waited until afterward. Phister asked her if she had received a notice to appear before the MESA Executive Board, and she informed him that she had not. He thereupon showed her a copy of a telegram from the MESA received at his office. This, according to Sanders' credible and uncontradicted testimony, was the first knowledge she had of the sending of the telegram." Phister again informed her that he would communicate with her as soon as the matter was settled. On April 15, 1944, the respondent mailed her a registered letter, identical in content with that mailed to Morrison, Russell, and Buker, advising her that she was being "laid off" until she could "adjust [her] affairs with the M. E. S. A." Sanders was paid to April 15, but received no vacation pay, notwithstanding her undisputed testimony that she had worked a sufficient number of hours to entitle her to it. Her membership dues in the MESA were last paid for January 1944 and no attempt had been made to collect dues from her thereafter. C. Con ten lions; conclusions The respondent asserts that, while it has at all times been willing to recog- nize the duly selected bargaining representative of the majority of its em- ployees, and has pursued it policy of permitting them a choice of representative, free from any interference or coercion, it has consistently opposed the principle of the closed shop or maintenance of membership. Consequently, for approxi- mately 3 years after it first recognized the MESA, it refused to grant that labor organization either of these types of union security. Finally, in June 1943, when the respondent was engaged in production of critical war material, and after the MESA, through its National Secretary, had refused to join, with other labor organizations, in the no-strike pledge to the Government, and was bringing economic pressure to hear against the respondent, it made its first limited con- cession regarding the granting of union security. This, however, merely took the form of an agreement which stated it to be the policy of the parties that maintenance of membership was desirable in the interest of harmonious rela- tions and the maintenance of war production. It provided specifically for vol- untary membership and agreed that non-members or members resigning from 52 The telegram, which was similar to those sent to Morrison, Russell, and Buker, was directed to an address at which, according to Sanders' uncontradicted testimony, she had not resided since 1939. Sanders further testified that she had notified the MESA of her changes of address. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union should be absolutely free to remain non-members or resign on or before a specified date, without prejudice. Although the 1VIESA attempted to interpret this as a maintenance of membership agreement in the conventional sense, the respondent firmly refused so to construe or apply it. On February 9, after the MESA strike, and the UE-CIO's attempt to organize the plant, the MESA demanded the discharge of Morrison, Russell, Buker, and Sanders, all of whom were active in behalf of the UE-CIO. The respondent re- fused, and the dispute was subsequently certified to the WLB. While the mat- ter was pending before that Board, and following negotiations between the parties, the respondent granted the MESA a maintenance of membership agree- ment, as a quid pro quo, for the MESA's no-strike pledge. Thereafter, although the respondent, recognizing that the MESA had been agitating for the discharge of these employees because of their anti-MESA and pro UE-CIO activity, had succeeded in having them exempted from the operation of that agreement, it nevertheless ultimately yielded to the MESA's economic pressure and "laid off" the employees. This, it will be observed, was in decided contrast to the respond- ent's unequivocal refusal, when called upon by the MESA to discharge Sanders in April 1943, following her activity in behalf of the UAW-CIO, as evidenced by its letter to the MESA, a portion of which has been quoted. The respondent's contention, that Morrison, Russell, Buker, and Sanders were merely laid off, and not discharged," and that it has at all times been ready and willing to reinstate them, provided they could establish their membership in good standing with the MESA, seeks to shift the onus of the respondent's failure to insist that the MESA fulfill its agreement, to the employees here involved, and to impose as a condition of reinstatement a requirement which it is impossible for these employees to meet. The MESA itself recognized that these employees were not obliged to maintain membership in that union, but confessed to its in- ability to control its membership, which insisted upon the expulsion of these em- ployees, notwithstanding a binding commitment. The respondent's decision to accede to the demands of the MESA, under these circumstances, rather than to insist that it fulfill its obligation under the contract, necessarily resulted in a vio- lation of the Act. With respect to Sukrow and Hawes, the respondent contends that they had been "certified" by the MESA as employees in good standing on March 16, 1944, and that, having elected to remain members thereafter, it was required to dis- charge them, upon notice from the union that they were no longer in good stand- ing.' In effect, the respondent maintains that, inasmuch as the maintenance 53 The respondent's contention, upon which it relied as a ground for its motion to dis- miss with respect to these employees, that the proceeding must fail for variance between the complaint, which alleged "lay-off" and the complaint, as amended, which relied upon "discharge," is without merit. The "gravamen" of Section 8 (3) of the Act is the encouragement or discouragement of membership in a labor organization by discrimination, and not the manner in which the discrimination is practiced. Moreover, inasmuch as the respondent retains employees laid off on a seniority list, under the terms of the MESA contract, for only a year, after which such employees are required to make application as new employees, and, since more than a year has elapsed between the time of the alleged "lay-offs" and the date of the hearing, this contention becomes academic. 54 It is noted that the names of Morrison, Russell, and Sanders appear upon the "certi- fied" list of employees who were members in good standing as of March 16, furnished by the MESA to the respondent, with a covering letter dated April 3, 1944, notwithstanding that the agreement of March 16 recited that they were suspended members and not required to maintain their membership. According to Phister's testimony, he first learned that the names of these employees were on the list when his attention was directed to it in cross- examination. It is singular that, although the respondent sent Sukrow home from the plant on March 15, following an attempt by the MESA to eject him, the respondent did not insist on including him among the employees who were exempted from the maintenance of membership agreement, executed the following day. The respondent's explanation that EUREKA VACUUM CLEANER COMPANY 905, of membership agreement, executed with the collective bargaining representa- tive of the majority of its employees, contemplates the discharge of employees who are not members in good standing , and since the respondent may not in- quire into the grounds for suspension or expulsion of members from that union,. the respondent had no alternative but to discharge employees who had failed to maintain theirvmembership in good standing, notwithstanding any discrimi- natory purpose on the part of the union, and actual knowledge of such purpose on the part of the respondent. A similar contention was raised in The Wallace case,' and rejected as without merit. The employees here involved, who had formerly been active in behalf of the, MESA, elected to withdraw their allegiance from that organization, and to enlist in the ranks of a rival organization. Their activities in behalf of the competing organization were not only well known to the MESA and to the respondent, but were made plain by the MESA to the respondent as the reason for demanding their discharge. The UE-CIO had twice notified the respondent during this- period that it claimed to represent a majority of its employees, and cautioned it against any course which aright jeopardize the right of the employees to a free choice of collective bargaining representative. The earliest of these claims was made by letter dated February 24, 1944, about 3 months prior to the anni- versary date of the existing contract. Under these circumstances, it was in- cumbent upon the respondent to observe scrupulous neutrality and to avoid any conduct which might impinge upon the right of the employees to exercise their- free choice of representatives. Instead, the respondent elected to accede to the demands of the MESA, and discharged these employees contrary to the estab- lished rights which the policy of the Act undertakes to preserve to employees. As was said by the Supreme Court in The Wallace case, dealing with the analogous closed-shop agreement, We do not construe the provision authorizing a closed shop contract as indicating an intention on the part of Congress to authorize a majority of workers and a company, as in the instant case, to penalize minority groups= of workers by depriving them of that full freedom of association and self- organization which it was the prime purpose of the Act to protect for all workers. The respondent further contends that it finally yielded to MESA pressure in discharging the employees only because it was at the time engaged in war pro- duction of such a critical nature that incalculable damage might have re- sulted from its failure to do so. It observes, parenthetically, that had it then been engaged merely in civilian production, it would have rejected the MESA's demands. It has been too well-established to necessitate extended discussion or citation of authority that mere economic hardship, exigencies of the moment, fear of reprisal by rival unions, and the like, afford no defense or justification for viola- tion of the Act.66 Similarly, it is no defense to an employer to assert that mem- bers of the union will not work with members of a rival union, and that the employer is not a free agent, and is powerless to prevent the ejection of such the MESA had not demanded his discharge at that time is unconvincing. The evidence regarding his anti-MESA and pro-UE-CIO activity, were not only publicized in the press, but were actually known to the respondent . However , in the light of the subsequent events which transpired with respect to the employees who were exempted from that agreement, his inclusion among them would have afforded him no protection . In any event , it would not have justified the respondent in discharging this employee. The Wallace Corporation v. N. L. R. B., 323 U . S. 248. sa It is significant that Congress did not see fit to suspend the operation of the Act for the duration of the war emergency , while it enacted legislation to prevent interruption of war production by industrial disputes. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Moreover, it has been established that the failure of an employer to prevent the ejection of employees by members of a rival union, and to afford them protection from physical violence and intimidation, even where no other unfair labor practice has been committed, renders the employer responsible for the ejection, such ejection being tantamount to a discharge." It will be noted that the employees who participated in the attempted ejection of the employees were violating shop rules which prohibited them from leaving their departments without express written permission from their foremen, except upon actual business of the respondent. The respondent's contention that it did not discipline them because of the large number of employees involved," is merely an indication of the respondent's readiness to yield to a show of force, rather than to insist upon the MESA's adherence to its agreement. Its contention, that any attempt by the respondent to interfere with the attempted ejection of the employees from the plant, might have resulted in a charge by the MESA of interference with its union activity, is patently without merit. It cannot be seric isly argued that conduct engaged in by members of a labor organization in attempting to oust employees for activity in behalf of a rival union, under the circumstances related, falls within the protection of legitimate union activity. To the respondent's contention that its refusal to accede to the demands of the MESA would have resulted in a serious work stoppage, it may be observed that adequate machinery was available to the Government to continue production of essential implements of war in the event that a stoppage had actually resulted from the respondent's refusal to discharge these employees. It is further significant that, while the maintenance of membership agreement provided for. referral to an arbiter to be appointed by the WLB of any dispute arising out of membership in the MESA, the respondent did not see fit to resort to that provision, notwithstanding that it was requested to do so by Sukrow and Hawes.6° In view of what has been said, it becomes unnecessary to decide whether, as contended by Board counsel, there is an affirmative duty upon the part of an employer, in the absence of actual knowledge that an employee-member has been suspended or expelled from a labor organization because of activity in behalf of a rival organization , to ascertain the reason for the suspension or expulsion. The proviso in Section 8 (3) of the Act may not be subverted to defeat the primary purpose of the Act, and in the event of any conflict between the proviso and the provisions of Sections 7 and 8 (1), guaranteeing the right of employees to self-organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, the limitation upon the provisions of Section 8 (3) must yield to the broader purposes of the Act6° As has already been noted in this connection, with respect to Sukrow and Hawes, although their activity in behalf of the UE-CIO commenced in February 1944, they were not discharged until April and May, respectively, following actual notice to the respondent by the UE-CIO of its claim to represent a majority of the employees, 67 See, e. g., N. L. It. B. v. Hudson Motor Car Company, 128 F. (2d) 528 ( C. C. A. 6), enf'g 34 N. L. It. B. 815; N. L. It. B. v. Star Publishing Co., 97 F (2d) 465 (C. C. A. 9), enf'g 4 N. L. It. B. 498. a° Contrast this with the 2-day lay-off given Morrison because of alleged violation of the provision of the contract regarding union activity during working hours. 58 Although it is true that the Chairman of the Regional War Labor Board declined to act because the maintenance of membership agreement had not been approved by that board , it will be noted that in response to Sukrow 's and Hawes ' request for the appoint. ment of the arbiter, the Chairman indicated that he declined to act, in part, because "the Company [had not] raised any question before us as to the propriety of the action." 00 See Matter of Rutland Court Owners, Inc., 44 N. L. It. B. 587, 46 N. L. R. B . 1040; see also The Wallace Corporation v. N. L. R, B., supra. EUREKA VACUUM CLEANER COMPANY 907 late in February and again in April , at or about a time when the Board would normally have entertained a petition for certification. It therefore follows, and the undersigned finds, upon the basis of the foregoing, and upon the entire record , that by discharging the employees named because of their membership in and activities in behalf of the UE-CIO, and because of their opposition to the MESA, the respondent has discriminated in regard to their hire and tenure of employment and conditions of employment , thereby discourag- ing membership in the UE-CIO and encouraging membership in the MESA. The undersigned further finds that, by the statements of Director of Industrial Relations Phister to Joseph Buker and Harriette Sanders in about March, 1944, concerning the MESA, and the inquiries with respect to the results of any elec- tion between the MESA and the UE-CIO, the respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed under the Act. IV. THE E FECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation'to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, it will be recommended that the respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discharged Philip Sukrow on April 3, 1944, Charles Morrison, Walter Russell, Joseph Buker and Harriette Sanders on April 15, 1944, and Myrtle Hawes McQuisten, on May 1, 1944, and thereafter refused to reinstate each of them for the reason that each of them joined and assisted a labor organization and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection. It will therefore be recommended that the respondent offer each of them, except Charles Morrison,' immediate and full reinstatement, and as to Walter Russell, within 90 days of his discharge from the Armed Forces, to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay, including vacation pay," which they 01 It will be recalled that Morrison has not, since October 15, 1944, when he went into business for himself, desired reinstatement. It is therefore not recommended that he be reinstated. The undersigned, however, will recommend that he be made whole for any loss of pay, including vacation pay, from April 15, 1944, the date of the respondent's discrimi- nation against him, to October 15, 1944, on which date he was no longer available for employment with the respondent. 12 Under the supplementary agreement between the respondent and the MESA, dated August 19, 1943, all eligible employees on the pay roll as of July 31, 1943, and on June 1 in each subsequent calendar year, who had worked a minimum of 1600 hours of straight time, were entitled to a vacation or pay in lieu thereof, in accordance with a prescribed formula. The respondent interpreted this as requiring employees to be on the pay roll on June 1, in addition to having worked the requisite number of hours. Inasmuch as the employees involved, excepting Russell, testified without contradiction that they worked the requisite minimum number of hours to earn their vacation pay, and inasmuch as they were not actually on the pay roll on June 1, by reason of the respondent's unfair labor practices, it is recommended that the respondent make them whole by including in their loss of pay their loss, of vacation pay. Matter of Carter Carburetor Corporation, 48 N. L. R. B. 354, 403, enf'd 140 F, (2d) 714 (C. C. A. 8), As the record is silent as to whether Russell, 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount which such employee would normally have earned as wages , including vacation pay, from the date of such discrimination to the (late of the offer of reinstatement , less such employee's net earnings during said period.' Upon the basis of the foregoing findings of facts, an(] upon the entire record, the undersigned makes the following: ('oNCi.USIONs of LAW 1. United Electrical , Radio & Machine Workers of America , affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Philip Sukrow, Walter Russell, Joseph Buker, Harriette Sanders, Charles Morrison, and Myrtle Hawes McQuisten, thereby discouraging members )Iip in the United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations , the respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent Eureka Vacuum Cleaner Company, of Detroit, Michigan , its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical , Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations , or any other labor organization of its employees , by discharging or laying off, or refusing to reinstate any of its employees , or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the right to self -organization , to form labor organi- zations, to join or assist United Electrical , Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection , as guaranteed in Section 7 of the Act. who was in the Armed Services at the time of the hearing, worked the required number of hours, it will be recommended that payment of vacation pay to him be made conditional upon the establishment of this fact. "' By net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company , 8 N. L. R . B. 440 . colonies received for work -relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R . B., 311 U. S. T. EUREKA VACUUM CLEANER COMPANY 909 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer Philip Sukrow, Joseph Buker, Harriette Sanders, and Myrtle Hawes McQuisten immediate and fill] reinstatement, and as to Walter Russell, within 90 days of his discharge from the Armed Forces, to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (b) Make whole Philip Sukrow, Walter Russell, Joseph Buker, Harriette Sanders, and Myrtle Hawes McQuisten for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount such employee would normally have earned as wages, including vacation pay, during the period from the date of the discrimination against each of them to the date of the respond- ent's offer of reinstatement; and Charles Morrison, for any loss of pay he may have suffered, by payment to him of a sum of money equal to that amount he would normally have earned as wages, including vacation pay. during the period of the discrimination against him, from April 15, 1944 to October 15, 1944, when he was no longer available for employment with the respondent less such em- ployee's net earnings during such period: (c) Post at its plant in Detroit. Michigan, copies of the notice attached hereto, marked "Appendix A." Copies of such notice, to be furnished by the Regional Director of the Seventh Region, shall, after being duly signed by the respond- ent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive (lays thereafter in conspicuous places, including all places where notices to employees are cus- tomarily pasted. Reasonable steps shall be taken by the respondent to insure that such notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Seventh Region , in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) clays from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the .National Labor Relations Board, Series 3. as amended, effective July 12, 1944, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the above parties and shall tile a copy with the Regional Director. As further provided in said Section 33. should any party desire permission to argue orally before the Board, request 910 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD therefor must be made in writing to the Board within ten (10) days from the. date of the order transferring the case to the Board. IRVING ROGOSIN, Trial Examiner. Dated October 8. 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED ELECTRICAL, RADIO & MACHINE WORKERS of AMERICA, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below, excepting Charles Morrison, immediate and full reinstatement, and as to Walter Russell, within 90 days of his discharge from the Armed Forces, to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay, including vacation pay, suffered as a result of the discrimination. Philip Sukrow Harriette Sanders Walter Russell Charles Morrison Joseph Buker Myrtle Hawes McQuisten All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to, hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labo- organization. EUREKA VACUUM CLEANER COMPANY, Enaplo ycr By ----------------------------------- (Representative ) ( Title) Dated ----------------------------------- NOTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.