Spicer Manufacturing Corp.

In the Matter of SPICER MANUFACTURING CORPORATION and MECHANICS EDUCATIONAL SOCIETY OF AMERICA (CUA) Case No. 8-C-1853.-Decided August 16, 7946 DECISION AND ORDER On March 11, 1946, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in any unfair labor practice and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, counsel for the Board filed excep- tions to the Intermediate Report and a supporting brief. Briefs were also filed by the respondent, MESA, and the CIO. Oral argument before the Board in Washington, D. C., was heard on June 3, 1946. We,have,considered the rulings of the Trial Examiner at the hearing, and find that no prejudicial error was committed. The rulings are hereby affirmed. We have considered the Intermediate Report, the exceptions and briefs, the oral argument, and the entire. record in the case, and hereby adopt the findings, conclusions, and recominenda- tions of the Trial Examiner. The Trial Examiner, relying on the doctrine enunciated in the Dia- mond T Motor Car case,l'found that the respondent did not violate the Act in discharging Alexander, Becker, and Smith, because it did not know, at the time when it discharged these three employees pursuant to a closed-shop agreement with the CIO, that the CIO had demanded their discharge because of their activities on behalf of.MESA.2 We agree with the Trial Examiner that such knowledge is essential to a finding of violation of the Act under these circumstances, and that there is insufficient evidence in the record to establish such knowledge. The facts in the record here before us indicate that some of the respondent's supervisory employees had knowledge of the organiza- tional campaign of MESA and to a limited extent were aware of the activities of Alexander, Smith, and Becker on its behalf. The Trial ' Matter of Diamond T Motor Car Company, 64 N. L. R. B. 1225. 2 At the oral argument before the Board , MESA's representative conceded that a valid closed-shop agreement was in existence at the time of the discharges. 70 N. L. R. B., No. 5. 41 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner, relying on the doctrine enunciated in the Diamond T Motor Car case 3 found that the respondent did not violate the Act in discharging the employees above named, because it did not know at the time it discharged them, pursuant to a valid closed-shop agree- ment with the CIO, that the CIO had demanded their discharge be- cause of their activities on behalf of MESA. Our dissenting colleague has concluded that we were largely swayed by the rationale of the Trial Examiner contained in footnote 33 of the Intermediate Report as adopted by us. This aspect of the report, however, is only an incidental factor in our decision. As we,have stated above, our primary consideration has been that the knowledge obtained by the respondent was not enough to indicate that the con- tracting union was exceeding its rights under the closed-shop contract in demanding the discharges. As in the Diamond T Motor Car case, we do not find the facts and circumstances before us are such as to warrant a finding that the knowledge it possessed placed this respond- ent under a duty to inquire further as to the motivating factors in the expulsion by the union of these employees. ORDER Upon the basis of the foregoing finding of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Spicer Manufacturing Corpora- tion, Toledo, Ohio, be, and it hereby is, dismissed. Mx. JOHN M. HOUSTON, dissenting : The facts in this record impel the inference that the respondent was aware, when it discharged these employees, that the C. I. 0. had demanded their severance because they had been active in behalf of the MESA, a rival labor organization. The testimony which the -Trial Examiner has found to be either uncontradicted or credible establishes that Alexander informed Oliver Heney, the general foreman of the cutter grinder department, that he together with Smith and Becker had been charged by the C. I. 0. with dual unionism and had been advised by the C. I. 0. that they would be required to stand trial for such activity. Other testimony reveals that Becker, in discussing the C. I.00. charge against him with Employment Manager Earley, inquired if his activities for MESA were in any way involved in his discharge and further inquired of Earley if he knew "the real reason" for the discharge, to which Earley rejoined that he did. It appears that General Foreman Ames was aware that Becker had been active in the organizational campaign sponsored by MESA. And it is also a 3 Matter of Diamond T Motor Car Company, 64 N. L. R. B. 1225. D SPICER MANUFACTURING CORPORATION 43 fact that Foreman Schaarschmidt knew of Smith's activity for MESA. Moreover, it is clear that Earley was informed that these employees were paid-up members in the C. I. 0.,4 and that both the Director of Industrial Relations and his assistant were completely cognizant of the rivalry prevailing in the plant during the period involved in these discharges. I find it unreasonable to assume that on this state of the record we would be doing an injustice if we applied the doctrine of the Rutland Court case- to hold the respondent liable for the reinstatement with back pay of the complainants. My-colleagues, however, in aff rming the Trial Examiner, have under- taken to predicate their decision, in part at least, upon the theory that, even though General Foreman Heney knew of the reasons urged for the discharges by the C. I. 0., no responsibility should be imputed to the respondent. In stating this principle of law, the majority has adopted a footnote in the Intermediate Report in which the Trial Examiner undertakes to supply a 'rationale for his finding in this respect. The theory is that : Under the particular circumstances -here existing , where an employee volunteers information to his foreman not directly related to the work at hand, and where the evidence fails to show that the employee either specifically requested the foreman to transmit the information to the respondent's supervisory hierachy concerned with such matters or that the employee would normally believe it was within the scope of the foreman's duties to do so, the undersigned is of the opinion that the knowledge thus gained by the foreman cannot be imputed to the employer. The adoption of this justification seems to me to create a highly undesirable set of criteria. Once it is agreed that an employer is liable for the discharge of an employee engaged in dual unionism only if it can be shown that the employer had knowledge of the employee's rival union activity, then it becomes imperative to establish reasonable standards as to the proof requisite for a finding that an employer knew the motive for the requested discharges. In establishing such guide- posts I should be inclined to be persuaded by the realities of industrial practice. The Trial Examiner's conclusign .ignores such considera- tions. To characterize, as "not directly related to the work at hand" a rank and file employee's concern with loss of his job because of a preference for a labor organization over-looks a most basic element in a worker's economic life. And to impose the burden of a require- ment that an ordinary employee give specific instructions to a general foreman that his concern be transmitted to a higher official completely, disregards the fundamental and historic sensitivity with which a rank 'The reasonable inference, of course, is that Earley was aware that something other than non-payment of C. I . O. dues was the motive for their discharges. 44 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD and file employee regards his relationship with his superior-a circum- stance which this Board has hitherto invariably taken into account in its efforts to preserve an atmosphere of freedom for employees engaged in organizational activity. But to superimpose upon all this, the fur- ther duty that the employee must assure himself that the foreman to whom he communicates his grievance shall have been authorized in turn to acquaint someone higher in the managerial hierarchy with the facts creates an insuperable barrier to the application of the Rutland Court principle in any factual context. Certainly, if that principle is to be left with any vitality, an employee who invokes its protection, should not be prejudiced upon the basis of evidentiary impossibilities. These considerations combine to convince me that the decision of the majority has created vagueness and ambiguity where as much cer- tainty as is consonant with the aim of the Rutland Court principle is greatly to be desired and rather badly needed. I niust therefore dis- sent from the dismissal of this complaint. INTERMEDIATE REPORT Mr. Louis S. Belkin, for the Board. Marshall, Meihorn, Wall & Bloch, of Toledo, Ohio, by' M} Arnold P'. Bsnge, for the respondent., Mr. Earl Streeter, of Toledo Ohio, for the M. E. S. A. STATEMENT OF THE CASE Upon charges filed on October 17, 1945, by Mechanics" Educational Society of America ( CUA), herein called M. E. S. A., the National Labor Relations Board, herein called the Board, by its acting Regional Director for the Eighth Region (Cleveland , Ohio ), issued its complaint dated January 16, 1946, against Spicer Manufacturing Corporation , Toledo, Ohio, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent , M. E. S. A., and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America ( CIO), herein called the C. I. 0.1 With respect to the unfair labor practices the complaint alleged in substance: (1) that the respondent , since on or before August 22, 1945, granted the use of its property and time to the representatives and officers of the C. I. O. for the pur- pose of threatening, coercing, intimidating , and restraining employees from becoming members of M. E. S. A.; ( 2) that the respondent on or about September 1, 1945, discharged Harvard Smith, Harry A. Becker , and Nelson B. Alexander because of their membership in and activities on behalf of M. E. S. A., and has since the said date refused and failed to reemploy these employees ; and that the respondent by such conduct engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. The respondent thereafter filed its answer wherein it denied that it engaged in any unfair labor practices, and affirmatively alleged that Smith, Becker, and 1 The C 1 0 did not appear at the hearing. SPICER MANUFACTURING CORPORATION 45 Alexander were discharged because of certain mandatory provisions contained in a contract between the respondent and the C. I. 0 , then in full force and effect, requiring as a condition of employment that all members of the C. I. 0. should remain members of the C. I. 0. in good standing. Pursuant to notice, a hearing was held on January 29 and 30, 1946, at Toledo, Ohio, before Sidney Lindner, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and 'M. E. S.,A. by a lay representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the - issues was afforded all parties. At the close of the Board's case a motion by counsel for the respondent to dismiss the complaint was denied, and ruling was reserved on a similar motion made at the close of the hearing. The motion is disposed of as hereinafter indicated. At the close of the hearing a motion by counsel for the Board to conform the pleadings to the proof as to dates and minor variations was granted over the objection of the respondent's counsel. Counsel for the Board and for the respondent argued orally before the undersigned at the close of the hearing. Briefs were subsequently filed with the undersigned. Upon the record thus made and from his observation of the witnesses the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Spicer Manufacturing Corporation is a Virginia corporation with its principal office in Toledo, Ohio. It operates a plant in Toledo, Ohio, the only plant in- volved in this proceeding, where it is engaged in the manufacture of axles, trans- missions, universal joints, clutches, and automotive parts. During the 12 months immediately prior to the hearing, the respondent in the conduct of its business operations at its plant in Toledo, Ohio, purchased raw materials consisting prin- cipally of steel, iron, bronze, and aluminum metals valued in excess of $1,000,000, of which approximately 85 percent was shipped to its plant at Toledo from points outside the State of Ohio. During the same period the respondent manufactured finished products having a value in excess of $2,000,000, of which approximately 85 percent was sold and shipped by it to points outside the State of Ohio. The respondent admitted at the hearing that it is engaged in com- merce within the meaning of the Act. If THE ORGANIZATIONS INVOLVED Mechanics Educational Society of America, affiliated with the Confederated Unions of America, and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 12, affiliated with the Congress of Industrial Organizations, are labor organizations admitting to mem- bership employees of the respondent. III THE UNFAIR LABOR PRACTICES 1 The agreement with the C. I. 0. Prior to 1937 the respondent had contracts with several unions, each represent- ing particular groups of its employees. Under date of June 22 , 1943, the respondent entered into a written collective bargaining agreement with the C. I. 0.2 By its terms the agreement became 2 On February 11, 1937, M. E S. A. and the C. I. O. had by stipulation agreed on an election which was held on February 12 and 13, 1937, in accordance with the National 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective September 29, 1942, and was to continue to and including September 28, 1943, and thereafter until terminated, modified, or amended. The article of the agreement dealing with its duration is as follows : Article 6-Duration of Agreement Subject to supplemental agreement attached hereto, this agreement shall become effective September 29, 1942, and continue to and including Septem- ber 28, 1943, and thereafter until terminated, modified or amended. It shall be considered that this agreement shall continue beyond the above date unless either party shall give notice as follows : Thirty (30) days' notice in writing of such intent to modify or amend not more than two (2) articles ; sixty days' notice in writing of such intent to modify or amend three (3) or more articles or to terminate this contract. Supplemental Agreement This agreement shall become effective September 29, 1942, and continue to and including September 28, 1943. If no extension date is agreed to by both parties by August 15, 1943, the War Labor Board shall within thirty days' (30) set an'extension date, which shall in no case be for longer than June 22, 1944. If the War Labor Board does not set an extension date by Sep- tember 15, 1943, then September 28, 1943, shall be used as the termination date of this agreement3 The agreement further provided for C. I. O. recognition, seniority, hours and wages, grievance procedure, and shop rules and conditions. The article of the agreement dealing with recognition contained among other things the following sections: Article 1-Section 4:' The Company shall furnish a room for the Union Committees to meet at all times for the purpose of hearing complaints, griev- ances, or suggestions from the employees. When an emergency arises, a meeting may be called by the Bargaining Committee and Company during working hours. Employees involved in these meetings shall not be penalized. The Bargaining Committee or the shop stewards or departments shall not be penalized for time lost due to committee work. Article 1-Section 5: All employees now covered and who may in the future be covered by the terms of this agreement, who have been employed by the Company,- shall within thirty (30) days after the signing of this agreement or in the case of new employees within thirty (30) days after their starting date of employment, as a condition of continued employment, become and remain members in good standing in the Union. The C. I. O. and the respondent, after the signing of the above agreement, continued to act in accordance with its temms and conditions. On May 31, 1944, the C. I. O. gave the respondent notice in writing of its intention to modify or amend the agreement as follows : Spice Unit in meeting assembled May 18, 1944, instructed the Bargaining Committee to open, the working agreement for negotiations on wages and working conditions Labor Relations Act, under the supervision of the Toledo Industrial Peace Board. The election was for the purpose of determining whom the majority of the respondent's pro- duction and maintenance employees wished to select as their collective bargaining repre- sentative. , The C. I. 0. won the election. a There was no evidence that the War Labor Board was called upon to or did extend this agreement. SPICER MANUFACTURING CORPORATION 47 In accordance with the above action the Bargaining Committee is this day serving the sixty (60) days' notice as provided in Article 6 of our present agreement of our intention to modify or amend two or more Articles in our present agreement. t Union proposals containing our request will be made available to you in due time [ S ] E FRAMER, Ellsworth Kraaner, Chairnwnc Spicer Unit. Upon receipt of the above communication, the respondent on June 1, 1944, notified the C. I. O. as follows: BARGAINING COMMITTEE : We have your letter of May 31, 1944, in which you notify us that you are thereby serving sixty days' notice of intention to modify or amend two or more articles of our present agreement. Since you have taken the initiative in this matter, we are hereby notifying you that in accordance with Article 6, we also propose to modify or amend three or more articles of the contract. It will take us a little time to gather material for the suggested changes, and we suggest that after an interval of a week or so we mutually agree upon a time to start the negotiations. LLOYD J. HANEY At the time of the interchange of the above letters, the respondent, according to Haney, was at the peak of war production and in the midst of an expansion program with the result that the bargaining committee of the C. I. O. went to its membership and asked that the negotiations be postponed. Although the above letters were never withdrawn, by mutual agreement negotiations on changes in the 1942-43 agreement did not take place during the years 1944 or 1945 until after V-J Day. Since August 20, 1945, the C. I. O. and the respondent have had six or seven negotiation meetings on suggested changes in the 1942- 43 agreement. The record does not reveal, however, that any changes have been made in the agreement as a result of these meetings, and from June 22, 1943, the respondent and the C. I. O. have operated under the terms of the 1942-43 agreement.' No question is raised respecting the majority status of the C. I. O. or the appropriateness of the bargaining unit in June 1943, whdn the C. I. O. and the respondent entered into the 1942-43 agreement. The undersigned finds that on June 22, 1943, the C. I. O. was the representative of the employees, qualified to contract on their behalf and competent to conclude the agreement entered into on that day. As heretofore noted, even though the contracting parties notified each other of their intention to modify or amend several articles of the agreement, no mention was made by either of intention to terminate the agreement. On the contrary, their conduct clearly evinces a mutual agreement to continue to operate under 4 Haney is Director of Industrial Relations for the respondent. 3 Thus the respondent introduced in evidence a list of 74 employees who were discharged at the request of the C. I. 0. during the period from, January 10, 1944 to September 26, 1945, in accordance with Article 1-Section 5 of the agreement. The respondent also introduced in evidence a log book of all meetings held in the conference room in the plant during the period from July 17, 1944 , to the date of the hearing. It shows, in addition to other meetings, that the C. I. 0. was allowed the use of the respondent's property for various meetings , some with management , others of the bargaining committee alone, and still others of the Bargaining Committee with working departments of the plant. The log book does not indicate the purposes of these various meetings. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 1942-43 agreement until terminated after 60 days' notice in writing by either party of intention to terminate." Counsel for the Board during oral argument and in his brief raised the conten- tion that the agreement was terminated on August 20. 1945. when the C. I. O. and the respondent began their series of meetings to negotiate suggested changes in the agreement. No evidence was introduced to indicate that either party notified the other of its intention to terminate the agreement, which the under- signed finds to be a specific requirement under the terms of the agreement' There is no merit to this contention and the undersigned finds that the 1942-43 agreement between the C. I. O. and the respondent was for 1 year from Septem- ber 29, 1942; to September 28, 1943, and was to continue indefinitely thereafter until either party gave 60 days' notice in writing of intention to terminate, and the undersigned further finds that the agreement was in full force and effect at all times material herein. 2. Inception of M. E. S. A. activities in the respondent' s plant About the first week in August 1945. M E S. A organizational activities started in several departments in the respondent's plant. On August 17, 1945, Earl Streeter, executive secretary of M. E. S. A. in the Toledo district, notified the respondent by letter that a substantial majority of the employees in certain departments were members of Al. E. S A., and requested recognition of M E S. A. as bargaining representative for these departments. He stated further that he did not consider the existing contract between the respondent and the C. I. O. a bar to representation, and he requested a meeting with the respondent to discuss the matter. Thereafter on September 6, 1945, M. E. S A. filed a petition for certification of representatives" alleging that the employees in the toolroom, machine repair, cutter grind, and tool inspection departments constitute an ap- propriate bargaining unit. On September 17, 1945, a meeting was held at the office of the respondent's attorney attended by representatives of M. E. S. A., C. I. 0., the respondent, and a Board Field Examiner to discuss the petition. The record does not indicate the results of this meeting. 3. The discharges; alleged interference, restraiaat, and coercion Harvard Smith began work for the respondent in August 1928, and at the time of his discharge on August 31, 1945, was a precision grinder in the toolroon de- partment On or about August 4, 1945, he began soliciting-employees of the tool- room department to become members of M. E S. A. The employees signed mem- bership applications at Smith's machine, and, according to Smith, the foreman of the toolroom, Arthur Schaarschmidt, was present in the room when he (Smith) engaged in M. E. S. A. activities. On one occasion Schaarsclmidt was talking to an employee about 25 or 30 feet away from Smith's machine while Smith was sign- ing up some employees as members of M. E. S. -A., but Schaarschmidt never said anything to Smith about his activities. $Haney's uncontradicted testimony which the undersigned credits is that it was the mutual understanding of the parties that the 1942- 43 agreement was in full force and effect during all of this period and until terminated. C Haney's uncontradicted testimony, which the undersigned credits, reveals that the parties intended merely to negotiate changes in the agreement at the meeting of August 20. 1945, and subsequent meetings. " Case No. 8-R-1995. SPICER MANUFACTURING CORPORATION 49 On or about August 6, the day shift employees of the toolroom met in the con- ference room in the respondent's plant during working hours.' The C. I. O. bargaining committee was present, but no representative of the respondent was there. Ellsworth Kramer, chairman of the bargaining committee, spoke and among other things told the employees that the C. I. O. had obtained the employees' seniority status back for them and "if they did not keep in line," the C I. O. would take it away. Kramer also said that if it was found out who in the plant vas organizing for M. E. S A., they would "be thrown out." A paper was passed around to all of the employees present for them to affix their signature, but, accord- Ing to Smith, lie gave them "the wink," and only a few employees signed.10 ,-The meeting lasted about an hour and the employees were paid for the time spent in the conference room." Smith continued his M. E. S. A. organizational activities for 2 or 3 weeks after the above meeting was held. Nelson B. Alexander, a cutter grinder, was employed by the respondent from March 1929, until he was discharged on August 31, 1945 Alexander's activity in behalf of M E. S. A. began the first or second week in August 1945, in addition to talking to some of the men in the cutter grind department, he signed up approxi- mately six men to membership According to Alexander, at about 2 p in. on August 24 or 25, 1945, while he was working on his job, the C. I. O. steward of his department, Al Monette, told him they were wanted in the committee room IZ Arriving at the committee room they found, in addition to the C. I. O. bargaining committee, Smith and Henry A. Becker, the latter an employee of the machine repair department. Kramer, chair- man of the committee, presided and told Alexander that he was being accused of organizing for M. E S. A. SeN eral documents were shown to Alexander which purported to reveal his M. E. S. A. activities, but Alexander denied that he was engaged in this activity. During the meeting, which lasted about 'a half hour,"' a member of the committee stated that he thought that Alexander, Smith, and Becker "ought to stand trial before a trial board," and, according to Alexander, when the meeting adjourned "it was understood that we would stand trial for organizing the M. E. S. A. in the Spicer plant." The following day Alexander spoke with Oliver Heney, general foreman of the cutter grind department," in Heney's office According to Alexander's un- contradicted testimony, lie told Heney the whole story of what had occurred in the committee room the previous day and then said "we [Alexander, Smith, and Becker] were going to have to stand trial before a C. I. 0 trial," whereupon Heney remarked that that was too bad. Alexander then left the office. Harry A. Becker became employed by the respondent in October 1941, and at the time of his discharge on September 4, 1945, was a machinist in the machine ° Notice of the meeting was posted by the C. I. O. steward on the bulletin board for the posting of union notices. Approximately 70 employees of the toolroom department attended. 10 The record does not reveal the purpose or the contents of the paper so circulated. " The findings in this paragraph are based upon Smith's uncontradicted testimony. 12 Article 1-Section 4 of the agreement between the C. I O. and the respondent pro- vided that "The Company shall furnish a room for the Union Committees to meet at all times for the purpose of hearing complaints, grievances, or suggestions from the employees . . . "The employees were paid for the time spent in the committee room. "The parties stipulated at the hearing that Heney was a supervisory employee who could effectively recommend changes in the status of employees. Oliver Heney should not be confused with Haney, the director of industrial relations 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repair department. Becker's organizational activity for M. E. S. A. began on August 8, when a fellow workman in his department enlisted him and a third employee to organize the machine repair department They talked with the employees and signed up about 30 to membership in M E. S A. As noted above, Becker was one of the employees called to the committee room by the C. I. O. bargaining committee on August 24 or 25, 1945, when a member of the committee said that he thought Alexander, Smith, and Becker "ought to stand trial before a trial board." At about 10 a. in. on August 31, 1945, while at work, Alexander and Smith were requested to go to the employment office to see Clarence Earley, the respond- ent's employment manager. Earley had three typewritten communications on his desk and, after asking the men their names, read to Alexander and Smith the communications (which were identical in content) that the respondent had received from the C. I. O. with respect to each as follows : AUGUST 31, 1945. To : EARLEY, EMPLOYMENT OFFICE - Re: NELSON B. ALEXANDER #53002 Spicer Unit in a Special Emergency meeting on August 30, 1945 voted by an overwhelming majority to suspend the above person from membership in the Spicer Unit pending disposition of charges against him. The Unit's action automatically severs his membership in the Union and places him in violation of Article I Section 5 of our agreement and the Bar- gaining Committee demands his immediate removal from the payroll of the Spicer Manufacturing Corporation. It is the Bargaining Committee intent to insist upon immediate compliance and we will want an affirmative answer by 12 noon of this date. BARGAINING COMMITTEE [s] Henry Baum HENRY BAUM, Seereta.Y y Earley, according to Alexander and Smith, asked them if they knew what the agreement was and, when they answered in the negative, Earley read Article 1- Section 5. Alexander and Smith asked Earley to clarify the section of the agree- ment read to them whereupon Earley said "it was for non-payment of dues." When they told Earley their dues were paid up until September 1, 15 Earley said there was nothing he could do about it, that their cards would be pulled the next morning. Thereupon the men left Earley's office.1e Earley, in his version of what transpired in his office on August 31, testified that he called Alexander and Smith to his office, read to them the C. I. O.'s request for their discharge and also read Article 1-Section 5 of the agreement. He then advised them that unless the request was withdrawn within 24 hours that they would remain discharged. Earley denied that he knew the reasons for the dis- charges other than that the men were being discharged at the request of the C. I. O. in accordance with Article 1-Section 5 of the agreement. He further testified that neither Alexander nor Smith said anything to him about the fact ss Smith's dues were paid only through July. The constitution of the International Union UAW-CIO provides for automatic suspension of a member who becomes in arrears in dues for 2 calendar months. le Alexander and Smith were permitted to complete their day's work which ended at 3 p. m Alexander has not worked for the respondent since then . Smith reported for work on the following work day September 4, stating that the men in his department told him to do so. After a little confusion in the department Smith left the plant and has not been employed by the respondent since SPICER MANUFACTURING CORPORATION 51 that they were being discharged because of their activities in behalf of M. E. S. A., nor did he have any knowledge that they had been engaged in such activity. Earley admitted that before the discharges of Alexander, Smith, and Becker he had heard rumors in the plant that M. E. S. A. was attempting to organize and represent some of the respondent's employees. Earley also denied that he told Alexander and Smith that the discharges were for non-payment of union dues. In explanation of the inscription "Discharged in accordance with Art. No. 1, Sec. No. 5 of Agreement. Non-payment of union dues," on the "Request for Em- ployee's Release" form, given to the men with their last pay check,17 Earley testi- fied that that was "a normal explanation" and since V-J day, has been inscribed on all these forms where the discharge is processed under Article 1-Section 5 of the agreement. He testified further that this was done routinely by the clerks who type these forms and with the purpose of assisting the discharged employee who is either seeking other employment or applying for unemployment insurance, since to an "outsider" a discharge under Article 1-Section 5 would not mean anything. It is clear from the foregoing facts, and the undersigned finds, that during the course of the conversation between Earley, Alexander, and Smith the claim was not made, nor was the respondent informed, that the discharges of Alexander and Smith had been demanded by the C. I. O. because of their activities on behalf of M. E. S.A. During the afternoon of August 31, Alexander again went to Earley's office further to discuss his discharge. Not finding Earley in, Alexander spoke with Ernest Buechele,18 who was present in Earley's office at the morning conference but did not participate. According to Alexander's uncontradicted testimony, he said to Buechele, "You remember when you were in that meeting this morning that there were communications read that we were being discharged for non- payment of dues?" and Buechele answered that he did. Upon ascertaining from Buechele that their discharge slips would show non-payment of dues, Alexander showed Buechele his C I 0. dues receipt which disclosed that his dues were paid up until September 1, and Buechele said "we can't fire a man on those grounds." Buechele then walked away and Alexander left.19 On September 4, Becker received a telephone call at his home from Homer Ames, general foreman of the machine repair department, who asked Becker to come into the plant .'o Upon reporting to Ames, lie was told that Earley wanted to see him in the employment office. Earley read to Becker the communication that the respondent had received from the C. I. O. set forth above, regarding him, and told Becker that it was his duty to discharge him and that his card would be pulled at 11 a. in. Becker inquired if his M. E. S. A. activities had anything to do with the discharge, and then asked Earley if he knew "the real reason," and Earley answered "I do." Upon inquiring how he stood with the respondent, Earley according to Becker, said "You stand all right with the Company." Becker then left the employment office and again met Ames who was with Arthur Schaar- schmidt, another supervisor for the respondent. Ames asked Becker what had " The last check was received by the men several weeks subsequent to their discharge. 98 Buechele's position with the respondent is hereinafter discussed. 19 It was the contention of counsel for the Board that in view of the fact that the employees understood Buechele to be the assistant manager in charge of employee rela- tions, and since he was present with Earley at the August 31 conference, he was a super- visory employee Although Buechele may .have been at the conference , Barley testified that he was only a clerk in the employment office. No evidence to the contrary having been adduced , the undersigned finds that Buechele was not a supervisory employee within the meaning of the Act. m Becker had not been at work for about a week because of an injured back. 712344--47-vol. 70-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD happened at the employment office and when Becker said that he was discharged Ames said that he had nothing to do with it. Later that day Ames asked Becker to what extent M. E. S. A. was organized in department 49 " Becker replied "About 30 percent," whereupon Ames said, "I wasn't far off That is about what I would figure." 4. Concluding 'endings The issues raised by the pleadings are: (1) whether the respondent violated Section 8 (1) of the Act by granting the use-of its time and property to the C. I. 0. for the purpose of threatening, coercing, intimidating and restraining employees from becoming members of M. E. S. A.; and (2) whether the respondent violated Section 8 (3) of the Act by discharging Smith, Becker, and Alexander because they engaged in concerted activities in behalf of M. E. S. A. The validity of that provision of the agreement whereby the respondent granted the-C. I. 0. the use of its time and property "for the purpose of hearing complaints, grievances, or suggestions from the employees," is not in question. It is also clear from the record that pursuant to the provisions of its agreement, the respondent did furnish the C. I. 0. bargaining committee a room, and also allowed the C. I. 0. the use of a conference room on occasion 22 The only evidence produced by the Board to sustain the first issue raised by the pleadings, thus attacking the validity of that provision of the agreement whereby the respondent granted its time and property to the C. I. 0, were the meetings held on August 6 and 24, 1945.' Ray Milne, the respondent's assistant director of industrial relations,` granted the C. I. 0. the use of the conference room on August 6, 1945, when it requested tile'room stating that they wanted to have a meeting with the toolroom depart- meht,to see if they could settle a problem of "steward trouble" 25 that had arisen in 'the department. According to Milne's uncontradicted testimony, which the undersigned credits, he had no knowledge of the purpose for which the room was to be used other than the stated reason given by the C. I. 0. bargaining com- mittee. Nor was any evidence adduced to show that any other of the respondent's management officials knew of the purpose for which the conference room was to be used on ' August 6, 1945. The undersigned finds that respondent's officials lacked such knowledge. Since the C. I. 0. requested the use, of the conference room when it already had the use of the committee room which had been assigned to it under the provisions of the agreement, can it be said that the respondent should have reasonably inferred that its property was to be used for purposes other, than the stated purpose, namely "steward trouble"? The only evidence in the record reveals that the C.-I. 0 stated that it wanted all of the employees of the tool department, of whom, there were about 65 or 70, to attend the meeting, and since the committee room was too small to accommodate such a large group, the con- ference room was granted because of its size. It cannot be reasonably said, there- 21 Department 49 is the machine repair department. 22 See footnote 5, supra. 28 There was also some evidence that Smith had been in the committee room on the occasion when he was initiated into the C I. 0. There was no evidence of the date of the initiation, the length of time spent by Smith in the committee room, or that the respond- ent had knowledge of the same. 24 As part of his duties Milne has charge of the conference room. 25 Steward trouble was understood by Milne- to mean where the steward was either not properly working on'the job giving the respondent a day's work, or was not cooperat- ing with the employees or with the supervision in the particular department. SPICER MANUFACTURING CORPORATION 53 fore, that the respondent could or should have inferred that the conference room was to be used by the C. I. O. other than for its stated purpose.` No request was made of the respondent for the use of the committee room on August 24, 1945, when Alexander, Smith, and Becker were brought before the C. I. O. bargaining committee and told that they would have to stand trial before a C. I. O. trial board, since the room had been granted to the C. I. O. previously and was continually being used by it under the provisions of the agreement. It is also clear that no one in the respondent's supervisory hierarchy had knowl- edge prior to the August 24 meeting that the committee room was to be used for purposes other than those set forth in the agreement, nor is there any evidence that the respondent had knowledge that Alexander, Smith, and Beckei were being called in by the C. I. O. bargaining committee to be spoken to regarding their M. E. S. A. activities. The complaint alleges that in granting the C. I. O. the use of its time and property, the respondent did so with the specific purpose of threatening, coercing, intimidating, and restraining employees from becoming members of M. E. S. A. It is obvious, as appears from the terms of the agreement between the respondent and the C. I. O.; that no such purpose can be read from the agreement itself." A conclusion of such purpose would therefore have to be found from other evidence. It is clear from the record that the respondent's first intimation that M. E. S. A. was organizing in its plant was on August 17, 1945, so that it can hardly be said that when, on August 6, 1945, it granted the use of the conference room to the C. I. 0., it did so with the purpose of threatening, coercing, intimidating, and restraining employees from becoming members of M. E. S. A. Moreover although the C. I. O. continued to have the use of the respondent's time and property after M. E. S. A. organizational activity commenced, there is no evidence that such use was to the exclusion of M. E. S. A. or that M. E. S. A. was denied an equal opportunity to use the respondent's time and, property. Indeed, M. E. S. A. not only made no such request but it did not protest to the respondent with respect to the use of its time and property by the C. I. O. Particularly in these circum- stances, the mere granting of the respondent's time and property to the C. I. O. for the purposes set forth in the agreement, standing alone, is not, in the opinion of the undersigned, inconsistent with a strict "hands-off" policy." While undoubtedly.the C. I. O. should not have used the respondent's time and property as it did on August 6 and 24, 1945, we are here not trying the C. 10. for any dereliction that it may have engaged in, but, rather, the respondent for a violation of the Act. An examination of all of the facts as set forth above fails to disclose that the respondent had any knowledge or could reasonably have in- ferred the purpose for which the C. I. O. was-going to use its time and property on 26 It is also worthy of note that the log book showing the use of the conference room referred to in footnote 5 reveals that on several occasions prior to August 6, 1945, the use of the conference room was granted the bargaining committee to meet with other departments, so that the request on that day cannot be considered unusual. 2' Cf Matter of Phelps Dodge Copper Products Corporation, Habirshaw Cable and Wire Dtivision, 63 N. L. R. B. 686, where the Board in its decision found that an employer did not render unlawful assistance to a union by the activities of roving stewards who handled complaints of employees, collected union dues and assisted the shop steward. In the opinion of the undersigned the granting by the respondent herein of a room for the purposes set forth in the agreement, is hardly distinguishable from the roving steward's use of the employer's time and property in the Phelps Dodge case. It appears to the undersigned that this case is different only in that the C. I. O. had a fixed place where it could settle grievances, whereas in the Phelps Dodge case the union stewards were per- mitted to roam all over the plant. 28 Cf. Jefferson Electric Co. v. N. L. It. B., 102 F. (2d) 949 (C. C. A. 7). 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 6 and 24, 1945, nor was it in fact specifically motivated by the purpose alleged in the complaint when it afforded the C. I. O. the use of its time and property." Furthermore, the undersigned finds that the granting by the respondent of the use of its time and property to the C. I. 0. under the circumstances described above did not have the reasonable effect of interfering with the organizational activities of its employees. In this state of the record, the Board having failed to sustain the burden of proof of showing that the respondent granted the use of its time and proper- ty for the purpose of threatening, coercing, intimidating, and restraining em- ployees from becoming members of M. E. S. A., the undersigned will recommend that this allegaton of the complaint be dismissed. With respect to the second issue raised by the pleadings, any finding of discrimination by the respondent within the meaning of Section 8 (3) of the Act in this case must be based upon the rationale of the Board's decision in the Rutland Court case.* In that case the Board held that discharges by an employer pursuant to demand of a union holding a validly made closed-shop contract because of activities by the employees on behalf of a rival union at a time when'a question concerning representation was pending, were discrimina- tory, despite the provisions of the proviso to Section 8 (3) of the Act,91 where the employer knew of the reasons upon which the union's request was based. Absent such knowledge, the respondent in this case, pursuant to the terms of the valid and subsisting contract between it and the C. I. 0., was under a legal duty forthwith to honor requests for the discharges of the employees in- volved and to remove them from its pay roll. As has been found above, the only evidence that Alexander, Smith, and Becker were engaged in activity on behalf of a rival union was that gained by Heney when Alexander spoke to him and told Heney "We [Alexander, Smith and Becker] were going to have to stand trial before a C. I. 0. trial." 88 'There is no evidence that Alexander spoke with any other management official or that Heney conveyed Alexander's account of what took place before the C. I. 0. bargain- ing committee on August 24, 1945, and his (Alexander's) statement that they were going to have "to stand trial" before the C. I. 0, to any of the respondent's higher management officials. Furthermore, no showing was made that there was a duty on Heney to report the knowledge gained by him or that the handling of matters of this nature were within the apparent scope of Heney's authority. Under these circumstances, in the opinion of the undersigned, the knowledge gained by Heney cannot be imputed to the respondent, and the undersigned so finds.' "Cf. Matter of Mathieson Alkali Works, 114 F. (2d) 796 (C. C. A. 4) ; Matter of Sun Shipbuildsng & Dry Dock Co., 135 F. (2d) 15 (C. C. A. 3). ° 80 Matter of Rutland Court Owners Inc., 44 N. L. R. B. 587; 46 N. L. R. B. 1040. 81 The proviso is that nothing in the Act "shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require, as a condition of em- ployment, membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." B°,There is no evidence that Smith or Becker told their respective foremen or other management officials that they were to Race trial before the C. I. O. 83 In arriving at the above finding the undersigned does not intend to convey thereby that knowledge gained by a foreman cannot be imputed to an employer in other circum- stances. Under the particular circumstances here existing however, where an employee volunteers information to his foreman not directly related to the work at hand , and whete the evidence fails to show that the employee either specifically requested the foreman to SPICER MANUFACTURING CORPORATION 55 Counsel for the Board, during oral argument and in his brief, raised the con- tention that since several of the respondent's management officials, including Barley, were aware of the M. E. S. A. campaign in the plant, that the inference must be drawn that the respondent knew that the C. I. O. was suspending Alex- ander, Smith, and Becker for dual-unionism. While the respondent knew from the August 17 letter of M. E. S. A. that it claimed to represent a majority of the employees in several departments of the plant, there was no evidence that the respondent knew which employees were involved in these activities. Even as- suming arguendo that the respondent knew of the activities of the employees on behalf of M. E. S. A., under the principle stated in Matter of Diamond T Motor Car Company," "... it does not follow that the respondent must have de- duced that the Independent was motivated by such activities and not by lawful considerations in demanding their discharge." The undersigned finds no merit in this contention. In this state of the record, the Board having failed to sustain the burden of proof of showing that the respondent had knowledge of the reasons for the C. I. O's requests, the undersigned will recommend that this allegation of the complaint also be dismissed. . Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, Spicer Manufacturing Corporation, consti- tute trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) and (7) of the Act. 2. Mechanics Educational Society of America (CUA), and International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, Local 12, C. I. 0., are labor organizations within the meaning of Section 2 (5) of the Act. 3. The respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (1) of the Act. 4. By discharging and refusing to reinstate Nelson B. Alexander, Harvard Smith, and Harry A. Becker, the respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the complaint against Spicer Manufacturing Cor- poration be dismissed in its entirety. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, 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 25, 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 transmit the information to the respondent's supervisory bierachy concerned with such matters or that the employee would normally believe it was within the scope of the fore- man's duties to do so, the undersigned is of the opinion that the knowledge thus gained by the foreman cannot be imputed to the employer. 14 64 N. L. R. B. 1225. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 other parties and shall file 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 therefor must be made in writing to the Board within ten ( 10) days from the date of the order trans- ferring the case to the Board. SIDNEY LINDNEB, Trial Exaniner. - Dated March 11, 1946.