Colgate-Palmolive-Peet Co.

In the Matter Of COLLATE-PALMOLIVE-FEET COMPANY and INTER- NATIONAL CHEMICAL `YORKERS UNION, A. F. OF L. In the Matter Of COLLATE-PALMOLIVE. PEST COMPANY and INTER- NATIONAL CHEMICAL `YORKERS UNION, A. F. OF L. Cases Nos. 20-R-1486 and 20-C-1372, respectively.-Decided September 6, 1946 Mr. Wallace E. Royster, for the Board. Messrs. R. J. Hecht and Bartley C. Crwm, of San Francisco, Calif., for the respondent. Messrs. Matthew 0. Tobriner and Jonathan H. Rowell, of San Francisco, Calif., for the A. F. of L. Gladstein, Anderson, Resner, Sawyer & Edises, by Mr. Bertram Edises, of San Francisco, Calif., for the C. 1. O. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER On March 27, 1946, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in the unfair labor practices affecting commerce alleged in the complaint, and that there was no sufficient basis for setting aside the result of the election previously held in Case No. 20-R-1486, and recommending that the complaint be dis- missed and that the A. F. of L.'s objections to the election be over- ruled, as set forth in the copy of the Intermediate Report attached hereto.' Thereafter, the A. F. of L. and counsel for the Board each duly filed exceptions to the Intermediate Report and a supporting brief. The Board has considered the rulings of the Trial Examiner, at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record„ in the case, and hereby adopts the findings and conclusions of the Trial The Intermediate Report was inadvertently dated March 27, 1945. 70 N. L. R. B., No. 107. 1202 COLGATE-PALMOLIVE-PEET COMPANY 1203 Examiner, only insofar as they are consistent with our Decision and Order herein. CHRONOLOGY OF FACTS On July 24, 1945, the respondent and the C. I. O. agreed in writing to extend a closed-shop contract made in 1941 and, in part, requiring C. I. O. membership in good standing as a condition of employment, pending decision by the Regional War Labor Board for the Tenth Region approving or disapproving certain contract changes. This extension agreement was made in compliance with the conditions set forth in the proviso to Section 8 (3) of the Act, which permits an employer to make a closed-shop contract with a bona yule majority union covering an appropriate unit. On-July 28, 1945, as the first open break between the C. I. O. and a large group of anti-C. I. O. employees spearheaded by the stewards, a notice was posted on the respondent's three bulletin boards, arinounc- ing an open meeting of the "Employees Welfare Association" at the end of the afternoon shift on July 30 but containing no explanation of the named organization. The purpose of the meeting was for the employees to withdraw from the C. I. O. and to transfer to some other labor organization. The respondent must have learned of the purpose of the proposed meeting, or it would not have agreed to shut down the plant for about 2 hours so that the employees on the night shift could attend 2 On July 30, 1945, the respondent discharged the first group of com- plainants, consisting of the five stewards and including Luchsinger, at the request of the C. I. O. and on the representation by the C. I. O. that the stewards were "suspended from membership" pending deter- mination by the C. I. O. of unspecified "charges against them" which impaired their good standing. Immediately after the discharges, C. I. O. adherents distributed leaflets throughout the plant, warning the employees that they would jeopardize their employment by attend- ing the "illegal" meeting of the Employees Welfare Association sched- uled for later that afternoon or by otherwise violating the C. I. O.'s constitution or membership oath. A majority of the respondent's employees, including substantially all the complainants, nevertheless attended the meeting, during which time the respondent shut clown its operations pursuant to the agreement set forth above. The meeting voted, apparently without dissent, to withdraw from the C. I. 0., to form another labor organization and to go on strike at noon of the following day unless the respondent reinstated the five discharged stewards. A telegram was thereupon sent to the respondent, signed by a four-man negotiating committee appointed at the meeting, stating ' The record shows that complainants Luchsinger and Olsen secured Superintendent Alt- man's agreement to the shut-down. 712344-47-vol 70--77 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in part that a majority of the employees, being "former" C. I. O. members, "have withdrawn" from the C. I. O. On the morning of July 31, 1945, the negotiating committee went to the respondent's office and interviewed Superintendent Altman and Vice-President Bailey in an attempt to get the discharged stewards reinstated, at the same time advising the respondent of the anti-C. 1. 0. telegram, which arrived during the interview. After the anti-C. I. O. purpose of the interview had become plain, Heide, a C. 1. 0. vice presi- dent who was present, stated before Altman and Bailey, admittedly management representatives, that the suspension notices of three of the four members of the negotiating committee were in the mail, asked the name of the fourth member, and upon learning that it was Olsen stated that he too would receive a suspension notice. Thus the re- spondent was in effect again informed that the C. I. O.'s motive was to remove the opposition. Later that morning, the C. I. O. distributed throughout the plant copies of another leaflet, again warning the employees that they might lose their jobs by assisting the C. I. O. "traitors." At about the same time, the C. I. O. advised the respondent that the four members of the negotiating committee had been suspended from membership pending determination of unspecified charges against them, and demanded their discharge. At noon on July 31, 1945, the Employees Welfare Association held another meeting, likewise attended by a substantial majority of the respondent's employees, at which it was decided to "continue the meet- ing" until the stewards were reinstated, although Vice-President Railey was present on invitation to explain that the stewards could not be reinstated because of the closed-shop contract. For the next few days most of the respondent's employees, including all the complainants, stayed away from work because of the "continuous meeting," a stoppage which we find constituted a strike. On August 2, 1945, the Employees Welfare Association held another meeting, at which it voted to affiliate with the A. F. of L. and to return to work. On August 3, 1945, most of the respondent's employees, except the five stewards and the four committeemen, returned to work. The first group, consisting of the five stewards, had previously been discharged, and the second group, consisting of the four committeemen, did not return to work because they had been advised by Superintendent Alt- man that the respondent could not employ them in view of their suspen- sion from membership by the C. I. O. - On the same day the A. F. of L. filed the representation'petition herein with the Board, as the respondent admittedly learned shortly thereafter. C. 1. O. employees and officials, during working hours, thereupon intensified the campaign, previously initiated by the leaflets COLGATE-PALMOLIVE-PEET COMPANY 1205 described above, to secure the discharge of C. I. O. opponents under the closed-shop contract. This campaign was open and widespread. On August 13, 1945, the A. F. of L. verified and thereafter duly filed the original unfair labor practice charge herein, alleging the discrim- inatory discharge of the five stewards and the four committeemen. At the same time the A. F. of L. filed a waiver in the representation case, waiving its right to protest the results of the prospective election on the grounds alleged in the charge. On August 15, 1945, according to the uncontradicted and credited testimony of employee Zulaica, he reported to Production Manager Stanberry, admittedly a management representative, that C. I. O. representatives were threatening him in the plant with discharge for wearing an A. F. of L. button. Stanberry'adinitted at the hearing that it was reported to him that C. I. O. adherents were "threatening the men" with discharge under the closed-shop contract for wearing A. F. of L. buttons. A few days later, on August 17, 1945, the first two groups of com- plainants applied to the respondent for reinstatement. According to Wood, the respondent's director of labor relations and admittedly a management representative, he refused the request on the ground that the applicants had been suspended from C. I. O. membership until the issue of violation of the constitution and bylaws had been "deter- 'mined between you and the C. I. 0." On August 22,1945, the date of the Board hearing on the A. F. of L.'s petition, the C. I. O. distributed throughout the plant and posted on a bulletin board another leaflet, in part warning the employees of dis- charge for pro-A. F. of L. or anti-C. I. O. activity. On August 30,1945, a C. 1. 0. representative requested the respondent to discharge about 60 or 70 named employees who were allegedly in bad standing, or about one-fifth of the respondent's total non-supervisory personnel, according to the estimate of Labor Relations Director Wood. Wood demurred, on the ground that the C. I. O. was "getting too many people involved," which might lead to a serious interruption of the respondent's operations. The C. I. O. then withdrew this particular demand. However, the event must have furnished the respondent further evidence that the C. I. O. was using its closed-shop contract as a means of removing its opponents among the employees. On August 31, 1945, a C. I. O. representative told employee Norris that she was discharged for transferring from the C. I. O. to the A. F. of L. She reported the conversation to Production Manager Stan- berry, who merely replied, "He can't do that." She then attempted to report the conversation to Superintendent Altman, but on finding him out of his office reported it to someone else in the office, who told her to ignore the statement of the C. I. O. representative and return to work. 1206 DECISIONS Or NATIONAL LABOR RELATIONS BOARD Between August 31 and September 13, 1945, the respondent invoked the closed-shop contract at the C. I. O.'s request and discharged the remaining 28 complainants, including Zulaica and Norris, referred to above.' In its brief before the Trial Examiner the respondent ad- initted knowledge by this time of the A. F. of L. activity of many of its employees, including by inference the aforesaid group of 28 com- plainants. - On September 26, 1945, the Board issued its Decision and Direction of Election herein,4 finding in part that the C. I. O. contract was not a bar to an election because it was of indefinite duration and had been in effect more than a year, and that the A. F. of L. had waived its right to protest the prospective election on the grounds alleged in the unfair labor practice charge filed by it in the complaint case. On October 16, the election was held, giving the C. 'I. O. a victory of 181 to 126 over the A. F. of L. The A. F. of L. thereafter duly filed objections to the election. The Board, after the close of the hearing in the complaint case herein, ordered a hearing on the ob- jections. The parties then stipulated that they would rest on the evidence 'previously adduced in the complaint case hearing. In October and December 1945 the C. I. 0., after trial, expelled the complainants, principally for their anti-C. 1. 0. conduct in "under- mining union policies." There is no evidence that the C. I. O. ex- pelled any'of the complainants because of their attempted resignation or withdrawal nor did it so represent to the respondent. There is likewise no evidence that the C. I. O. expelled any of the other em- ployees who had attempted to resign or withdraw. Conclusions Upon the foregoing findings of fact and the entire record in the case, we are of the opinion that the respondent knew, when it dis- charged and refused to reinstate the complainants, that the C. I. O. demanded such action because of the complainants' exercise of the' right guaranteed employees in the Act to bargain collectively through representatives "of their own choosing"; 6 that the respondent thereby violated Section 8 (1) and (3) of the Act, for the reasons stated' in 3 The case of an additional complainant , Rose Gilbert ( Schneider ), was dismissed at the hearing The names of the 37 other complainants are variously spelled in the record. In general, we have adopted the spellings used by the respondent in a list which it'submitted to the Regional Office in January 1946, and which was received in evidence as Board Exhibit 15 - 4 63 N. L R. B 1184. 5 Unlike the Trial, Examiner , we do not view the conclusionary testimony by various rep- resentatives' of the respondent , to the effect that the respondent did not "know " that this was the C. I. 0 's motive , as establishing the respondent's lack of knowledge of such motive. COLGATE-PALMOLIVE-PEET COMPANY 1207 the Rutland'Court case; 6 and that the A. F. of L.'s objections to the election should be sustained and the election vacated and set aside. It is clear from the record, and we find, that the respondent knew of the C. I. O.'s reason for demanding the discharges.7 Thus, several employees reported to management representatives that the C. I. O. was threatening them with discharge under the closed-shop contract for rival union activity; and the C. I. O.'s campaign along this line, both orally and by written leaflets, was open and widespread. More- over, the respondent's knowledge is further shown by its refusal to accede to the C. I. O.'s request for the discharge of what it apparently deemed to be too large and obvious a number of anti-C. I. O. em- ployees. It is true that the respondent was not in possession of all the facts prior to the first and second groups of discharges. Before the discharge of the committeemen at the termination of the strike on August 3, 1945, however, the respondent learned of the C. I. O.'s plan to use its closed-shop contract to remove its opponents, for when C. I. O. Vice-President Heide discovered the anti-C. I. O. activity of the committeemen, he baldly told two management representatives, Vice-President Railey and Superintendent Altman, that the commit- teemen were thereupon being suspended. And before the discharge of the stewards the respondent must have learned of their anti- C. I. O. activity, for it is unreasonable to suppose that it would have agreed to the request made by one of them to shut down operations in order to enable working employees to attend a meeting the stewards planned to hold without ascertaining the reason for the meeting. Moreover, the respondent, when it refused the reinstatement appli- cation of these two groups of discharged employees on August 17, 1945, was clearly apprised of the nature of the dismissals by the formal charges of discrimination which the A. F. of L. had filed with the Board. Finally, Labor Relations Director Wood admitted at the hearing, without making any differentiation among the various groups of discharges and refusals to reinstate, that he thought one of the reasons for the C. I. O.'s action was the complainant's anti-C. I. O. activity.8 Matter of Rutland Court Owners, inc., 44 N. L. R. B. 587, 46 N. L. R. B. 1040, where the cause of the contracting union's discharge demand was the employees' refusal to re- affirm that organization as their collective bargaining representative for the period follow- ing the expiration of the terns of the current valid contract, and their desire to substitute a rival labor organization See, also, Matter of Portland Lumber Mills, 64 N. L R. B 159. a Chairman Herzog considers this case wholly distinguishable from the recent Spicer Manu- factuanng Corporation case (70 N. L R B 41), because the proof of employer knowl- edge is overwhelming here, but was-in his opinion-insufficient there. 8 As for the complainants' withdrawal from the C I. 0., which would ordinarily entitle the respondent to discharge them in view of the closed-shop contract, it will be observed that the C. I. 0. did not accept their withdrawals nor is there any evidence that the re- 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent's position , as revealed in its brief to the Trial Examiner, is that the Rutland Court and Portland Lumber cases are wrong; that it is for the Congress and not the Board to prevent em- ployers from performing closed-shop contracts made pursuant to the express language of the proviso to Section 8 (3) of the Act, if it ap- pears desirable to prevent abuse of such contracts; and that in any event it would be "unjust" to require the respondent to determine whether the C. I. O.'s asserted motivation was "merely ostensible and not real," on the ground that the respondent could not "necessarily have deduced" the C. I. O.'s true motive. We find no merit in these con- tentions. We are satisfied, particularly in view of the C. I. O.'s wide- spread and open campaign among the employees during the preelec- tion period and the respondent's knowledge thereof, that the respond- ent made no bona fide effort to evaluate' all the evidence before it when it allegedly decided, despite the C. I. O.'s failure to deny the obvious facts, to believe that the C. I. O. was not acting in reprisal against the complainants because of their anti-C. 1. 0. activity. Upon the entire record, we find; contrary to the Trial Examiner, that the respondent discharged and refused to reinstate the complain- ants ° in violation of Section 8 (1) and ' (3) of the Act. We further find that the A. F. of L.'s objections to the election should be sustained, not because of any events which preceded the filing by the A. F. of L. of the waiver, but because of the respondent's subsequent unfair labor practices, which prevented the election from being truly representative of the employees' free choice and from reflecting their free and un- trammeled wishes as to collective bargaining representation. When the Regional Director advises us that the time is appropriate, we shall direct that a new election- be held among the respondent's em- ployees in the unit hereinbefoie found appropriate. THE REMEDY Having reversed the Trial Examiner's finding that the respondent did not discharge and refuse to reinstate the complainants (other than Gilbert) in violation of the Act and his failure to recommend that the respondent offer them reinstatement, we shall order our customary remedy in such circumstances, excluding from back pay the, period between the date of the Intermediate Report and our Order herein.10 spondent discharged them or rejected the reinstatement application of the stewards and the committeemen for that reason. On the contrary , the respondent's answer and the evi- dence show beyond dispute that the respondent acted because of the complainant's sus- pension by the C. I O. pending determination of charges of anti-C. I. O. activity , and that the attempted withdrawals played no part therein . Apparently the significance of the ,"withdrawals" occurred to the respondent for the first time in its brief to the Trial Examiner after the close of the hearing. U Exclusive of Rose Gilbert ( Schneider). 10 See e. g., Matter of Bermite Powder Company, 66 N L R B 678. COLGATE-PALMOLIVE-PEET COMPANY 1209 ORDER Upon 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 respondent, Colgate-Palmolive-Peet Company, Berkeley, California, and its officers, agents, successors, and assigns shall : 1. Cease and desist from discouraging membership in International Chemical Workers Union, A. F. of L., or any other labor organization of its employees, or encouraging membership in International Long- shoremen's and Warehousemen's Union, Warehouse Union No. 6, C. I. 0., or any other labor organization of its employees, by dis- charging, or refusing to reinstate any of its employees, or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. 2. Take the following affirmative action, which the Board finds will .effectuate the policies of the Act: (a) Offer Clyde Haynes, David Luchsinger, Frank Marshall, San- ford Moreau, Harry Smith, Edwin Thompson, Harold Lonnberg, Lincoln Olsen, William Sherman, Calixto Rigo, Robert Ashworth, Thomas Azevedo, Manuel Munoz, Henry Hellbaum, Nick Tate, Glenn Hixson. Vincent Barboni, Martin Heppeler, Sebastian Ramirez, Alden Lee, Terry Anderson, Felix Denkowski, Manuel Souza, Henry Giana- relli, Albert Zulaica, Ann Cerrato, Ophelia Reyes, William Howard, Kay Norris, Ina Paige, Caetano Perreira, Rose Ros, Genevieve Young, Frank Richmond, Manuel Alegre, John Perucca, anu Edward Novarro immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole the persons named above in paragraph 2 (a) of our Order for any loss of pay they have suffered by reason of the respond- ent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to March 27, 1946, the date of the Intermediate Report herein, and from the date of the Decision and Order herein to the date of the respondent's offer of reinstatement, less his net earnings during said period; 11 (c) Post throughout its plant at Berkeley, California, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the respondent's representative, be i1 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. Monies received for work performed upon Federal, State, county, municipal , or other work relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. , 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the election held herein on October 16, 1945, be, and it hereby is, vacated and set aside. MR. JAMES J. REYNOLDS, JR., 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 OFFER, to the employees named below immediate and full reinstatement 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 suffered as a result of their discharge as set forth in the Decision and Order. Clyde Haynes Alden Lee David Luchsinger Terry Anderson Frank Marshall Felix Denkowski Sanford Moreau Manuel Souza Harry Smith Henry Gianarelli Edwin Thompson Albert Zulaica Harold Lonnberg Ann Cerrato Lincoln Olsen Ophelia Reyes William Sherman William Howard Calixto Rigo Kay Norris Robert Ashworth Ina Paige Thomas Azevedo Caetano Perreira Manuel Munoz Rose Ros Henry Hellbaum Genevieve Young Nick Tate Frank Richmond Glenn Hixson Manuel Alegre Vincent Barboni John Perucca Martin Heppeler Edward Novarro Sebastian Ramirez COLGATE-PALMOLIVE-PEET COMPANY 1211 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 of our employees because of membership in or activity on behalf of any such labor organization. COLLATE-PALMOLIVE-PEET COMPANY Dated ------------------ By ---------------------- ---------- (Representative ) ( Title) NOTE.-Any of the above-named employees presently servil-Ig 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. Wallace E. Royster, for the Board. Messrs. R. J. Hecht and Bartley C. Crum, of San Francisco,, Calif., for the respondent. Messrs. Matthew 0. Tobr finer and Jonathan H. Rowell, of San Francisco, Calif., for the A. F. of L Gladstein, Anderson, Resner, Sawyer & Edises, of San Francisco, Calif, by Bertram Edises, for the C I 0 STATEMENT OF THE CASE On August 3, 1945, International Chemical Workers Union, A. F. of L., herein called the A. F. of L, filed with the Board's Regional Director for the Twentieth Region (San Francisco, California), a petition in Case No. 20-R-1486, alleging that a question affecting commerce had arisen with respect to the representation of employees of Colgate-Palmolive-Peet Company, herein called the respondent, at its Berkeley, California, plant and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat 449, herein called the Act. A hearing on the petition was held on August 22, 1945, On September 26, the Board issued its decision and directed that an election by secret ballot be held to determine whether certain of the respondent's employees desired to be represented for the purpose of collective bargaining by the A. F. of L., by Warehouse Union No. 6, International Longshoremen's and Warehousemen's Union, herein called the C. I 0., or by neither. The election was held on October 16, and was won by the C. I. 0.' On October 25, the A. F. of L. filed objections to the election, and 1 The results were as follows : - Approximate number of eligible voters-------------------------------------- 390 Void ballots --------- --------------------------------------------------- 6 Votes cast for A. F. of L-------------------------------------------------- 126 Votes cast for C. I. 0---------------------------------------------------- 181 Votes cast against participating unions------------------------------------ 1 Valid votes counted ----------------------- ------------------------------- 308 Challenged ballots- ------------------------------------------------------ 44 Valid votes counted plus challenged ballots-- ------------------------------ -- 352 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - on January 17, 1946, the Regional Director issued a report on the objections re- commending that they be overruled and that the C. I 0 be certified as the bargaining representative of the respondent's employees in an appropriate unit. The A F. of L. filed exceptions to the Regional Director's report. Meanwhile, on August 14, 1945, the A. F. of L filed a charge ; on October 10, 1945, an amended charge ; and on January 16 a second amended charge, of unfair labor practices, and on the last date the Board, by its Regional Director, issued a complaint alleging that the respondent had engaged in and was en- gaging in unfair labor practices aftecting commerce within the meaning of Section -8 (1) and (3) and Section 2 (6) and (7) of the Act Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent, the A. F. of L., and the C I 0. With respect to the unfair labor practices the complaint alleged, in substance, that the respondent from about July 30, 1945, to the date of the complaint, (1) threatened to discharge employees because of their membership in the A. F. of L ; removed notices of the A. F. of L. from the respondent's bulletin boards while not disturbing matter posted by the C I 0.; refused A. F. of L. representatives access to the respondent's plant, while permitting it to C. I. 0. representatives ; permitted the C. I. 0. to post on the respondent's bulletin boards statements threatening adherents of the A. F. of L with discharge; and kept meetings of the A F of L. under surveillance; and (2) on or about July 30, 1945, discharged Clyde Haynes, David Luchsinger, Frank Marshall, Sanford Moreau, and Harry Smith; on or about July 31, discharged Edwin Thompson, Harold Lonnberg, Lincoln Olsen, and William Sherman; on or about August 30, 1945, discharged Calixto Rigo, Robert Ashworth, Thomas Azevedo, Manuel Munoz, Henry Hellbaum , and Nick Tate; on or about September 1, discharged Glenn Hixson, Vincente Barboni, Martin Heppeler, Sebastian Ramirez, Alden Lee, Terry Anderson, Felix Denkowski, Manuel Souza, Henry Gianarelli, Albert Zulaica, Ann Cerrato, Ophelia Reyes, William Howard, Kay Norris, Ina Paige, Caetano Perreira, Rose Ros, and Genevieve Young; and discharged Frank Rich- mond, on September 5, Manuel Allegro and John I'erncca on September 7, Edward Novarro on September 11, and Rose Gilbert on September 13, and thereafter refused to employ any of these employees, because of their membership in and activity on behalf of the A. F. of L. and on behalf of Colgate-Palmolive-Peet Company Employees' Welfare Association, herein called the Association. On February 4, 1946, the respondent filed its answer admitting some of the allegations of the complaint, but denying that it had engaged in any unfair labor practices. As an affirmative defense in its behalf, the respondent pleaded the existence of a closed-shop contract with the C I. 0 , and asserted that it discharged the above-named employees because of the representation of the C. I. 0. that they were not members in good standing of that organization. Pursuant to notice, a hearing was held from February 4 to 8, 1946, at San Francisco, California, before Horace A Ruckel, the undersigned Trial Examiner duly appointed by the Chief Trial Examiner. Upon the opening of the hearing, the C. I. 0. made a motion to intervene, which the undersigned granted, The Board, the respondent, the A. F. of L., and the C. I. 0. were represented by counsel and participated in the hearing Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues, was afforded all parties. Upon the conclusion of the Board's case, counsel for the respondent made a motion, in which he was joined h ; counsel for the C I. 0, to dismiss the com- plaint. The undersigned denied this motion except as to those allegations of the complaint which alleged that the respondent removed notices of the A. F. of L. from the respondent's bulletin boards, that it kept meetings of the A. F. of L. under COLGATE-PALMOLIVE-PEET COMPANY 1213 surveillance, and that it discriminatorily discharged Rose Gilbert. In these respects the motion was granted At the conclusion of the hearing, the motion to dismiss the complaint was renewed. The undersigned reserved ruling on this motion, which is disposed of by the recommendations hereinafter made He granted a motion by counsel for the Board to conform the pleadings to the proof in formal matters. The parties were advised that they might argue orally before the Trial Ex- aminer, and might file briefs with the Trial Examiner by February 22, 1946. Subsequently, this time was extended to March S. Counsel for the, Board argued orally. All the parties filed briefs. On February 21, 1946, the Board directed a hearing on the A. F. of L.'s objec- tions to the election, and ordered that the representation case be consolidated With the complaint case. On March 8, 1946, the parties entered into a stipulation in which they waived any further hearing in the representation case, and agreed that the record in the complaint case might be used in determining the issues raised by the objections to the election. Upon the entire record in the case, and from his observations of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation having its central office in Jersey City, New Jersey. It operates plants in Jersey City, New Jersey ; Brooklyn, New York (a subsidiary) ; Jeffersonville, Indiana; Kansas City, Kansas; and Berkeley, California, where it is engaged in the manufacture and sale of soap and glycerin. During the year 1944, the gross sales of the respondent at its Berkeley plant, the only plant involved in this proceeding, were in excess of $1,000,000. The total sales to customers located outside the State of California amounted to more than 25 percent of this amount. During the same period raw materials having a value in excess of $1,000,000 were used at the Berkeley plant, of which more than 25 percent was obtained from sources outside the State of California. The respond- ent admits that it is engaged in commerce within the meaning of the Act. On July 30, 1945, at or about the beginning of the series of events which formed the subject matter of the hearing, the respondent employed at its Berkeley plant approximately 313 non-supervisory employees. II. THE LABOR ORGANIZATIONS INVOLVED - International Chemical Workers Union, affiliated with the American Federation of Labor, and Warehouse Union No. 6, International Longshoremen's and Ware- housemen's Union, affiliated with the Congress of Industrial Organizations, are labor organizations admitting employees of the respondent to membership. Colgate-Palmolive-Peet Employee's Welfare Association, herein called the Association, was an unaffiliated labor organization admitting employees of the respondent to membership. III. THE UNFAIR LABOR PRACTICES A The discharges; other alleged acts of interference, restraint, and coercion 1. The discharges in July The C. I. O. has represented the respondent's employees since 1,938 On July 9, 1941, it entered into a contract with the respondent which, in addition to estab- lishing the wages, hours, and other working conditions of the employees covered 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it, granted the C. I. O. a closed shop.' The contract was of intlefinite duration, terminable upon 30 days notice by either party.' From time to time during the life of the contract it was amended by various supplemental agreements, the last dated July 24, 1945, when the contract was extended pending approval by the War Labor Board of certain provisions of a new contract agreed, upon by the parties.` It is clear from the record that there had been for some time prior to the events hereinafter related a considerable dissatisfaction with their bargaining agent among the respondent's employees, as well as some friction between the C. I. O. plant stewards, five in number, and the officers of the I. L. W. U. The origin of this dissatisfaction and friction is less clear. However, sometime in July, according to the testimony of Frank Marshall, one of the five stewards, and former chairman of the Steward's Council,' he and others established contact with District 50 of the United Mine Woi keys of America and the matter of the affiliation of the respondent's employees with that organization was discussed. On July 26 a group of dissident members of the C. I. 0. held a dinner meeting at a local cafe where they discussed severance of their relationship with the C. I. 0., and the formation of the Association as an organizing committee to bridge the gap between the C. I. O. and such new affiliation as might be deter- mined upon. This meeting was attended by approximately 30 union members, 2 This provision reads as follows : "Section 3. The Employer agrees that when new employees are to be hired to do any work covered by Section One (1 ), they shall be hired thru the offices of the Union, provided that the Union shall be able to furnish competent workers for work required. In the event the union is unable to furnish competent workers, the Employer may hire from outside sources , provided that employees so hired shall make application for membership in the Union within fifteen ( 15) days of their employment. The employees covered by this agreement shall be members in good standing of the Union and the Employer shall employ no workers other than members of the Union subject to conditions hereinabove prescribed . In the hiring of new help ( for the warehouses ), they shall be hired through the offices of the Warehouse Union, Local 1-6, I L. W. U." The provisions relating to the life of the contract are as follows : "Section 18. Future Changes . The above constitutes an agreement between the Company and its employees, represented by the International Longshoremen's and Warehousemen 's Union, Local 1-6, and shall remain In effect unless and until changes become necessary because of conditions beyond the control of the Company or are requested by the employees through their representatives. "Thirty (30) days notice will be required before the adoption of any change sug- gested by either the employees or the Company and no change of any sort will be made without collective agreement to it having been arrived at between the Com- pany and the representatives of the employees If and when such changes are found necessary they will be made with due regard for the mutual rights, privileges and well being of the employees and the Company." 'The extension agreement reads : Memorandum of Agreement "It is hereby agreed that certain contract dated July 9, 1941, by and between WAREHOUSE UNION, LOCAL 6, I L. W. U, and COLGATE, PALMOLIVE PEST COMPANY, shall remain in full force and effect , pending the disposition of -those provisions which apply to the following : Shift differentials Wage rates for women workers Sick leave and upon which agreement has been reached by the parties hereto, subject to approval of the Tenth Regional War Labor, Board." Local 6 admitted to membership employees of other employers , principally in the warehousing industry . In those plants in which Local 6 had contracts, a steward repre- sentative was chosen to sit with stewards from other plants on the Steward's Council. COLGATE-PALMOLIVE-PEET COMPANY 1215 including the 5 stewards, namely, Clyde Haynes, David Luchsinger, Frank Marshall, Sanford Moreau, and Harry Smith, and including Edwin Thompson, Harold Lonnberg, Lincoln Olsen, and William Sherman, four other employees who came to figure prominently in the events hereinafter related. A decision was made at this meeting to call an open meeting of the respondent's em- ployees for July 30, for the purpose of presenting a resolution withdrawing from the C. I. 0. It was stipulated by the parties, and the undersigned finds, that the respond- ent had no knowledge of the July 26 meeting. On July 28, the following notice was posted on the three bulletin boards in the plant: Notice of Meeting Special Meeting for all those Interested in joining Employees Welfare Association at the Finnish Brotherhood Hall, 1970 Chestnut Street, Berkeley, California, across from Burbank School, at 4 :15 P. M, Monday, July 30, 1945. This notice was observed during the day of July 28, by Clifford Altman, plant superintendent, who, late in the afternoon, reported it to Charles Wood, in charge of the respondent's labor relations. Altman testified that the notice was meaningless to him. Wood testified that he concluded merely that some suit of a.welfare organization was being formed, perhaps one with facilities for extending credit to employees. The undersigned credits the testimony of Altman and Wood in this respect, and concludes that the respondent was not aware at this time that some of its employees were taking steps to form another labor organization and change their union affiliation. During the afternoon of July 30, a group of four officers of the C. I. 0., headed by Paul Heide, vice president, called at Altman's office and handed him letter, in substance as follows : This is to notify you that charges have been preferred by this Union against the following employees of your Company, and that they have been suspended from membership of this organization pending a trial as pro- vided for in the Constitution of our local Union : Clyde W. Haynes, Dave Luchinger, Frank Marshall, Sanford Moreau, Harry A Smith. We, therefore, respectfully request that the above-named employees of your Company be immediately removed from the job until such time as the charges against them have been determined by this organization. Altman, when he had finished reading the letter, showed it to B W. Bailey, the respondent's vice president. A conversation ensued between Bailey and the C. I. 0. representatives, in Altman's office, testified to by Bailey as follows : Q. Will you relate to the best of your recollection the gist or substance of that conversation? A. We told those people that this was-comes as a very great surprise to us, literally a bomb-shell. We knew nothing about what it was about, or any reason why these men should be suspended, and protested the thing because we told them they had been loyal employees as far as we were concerned and we had no charges against them. We were quickly reminded of our contract with the C I. 0. which specified-which carried a paragraph to the effect that all employees must be in good standing with the union to work at our plant 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Did any further conversations or discussions ensue after that? A. These gentlemen that represented the C. I. O. told us that these men must be discontinued immediately. The.), told us that they had sent a notice of their suspension to each man by registered mail, each man that was involved-. Q. (By Mr. Hecht.) What else happened, Mr. Railey? A It was finally agreed that we should call these five men into the office .. . Q And what occurred then? A. When they came to our office the C. I. O. officials handed each of them a carbon copy of a letter which they stated had been mailed to their homes. These gentlemen looked at the letters briefly and crushed them in their hands and stuck them in their pockets and walked out of the office. Q. No conversation between the five men? A. No conversation. Q. Between the five men and the C. I. O. officials? A. No. Q Any statement to you by these five men? A. No. The conference broke up when Railey told the five stewards that, inasmuch as he had been informed that they were not in good standing with the C. I. 0., the respondent, under the terms of its closed-shop contract, would have to let them go until their good standing was restored. There is no substantial conflict between Bailey's testimony and that of Alt- man with respect to the conference in the latter's office. Nor do the accounts given by Marshall and Smith, the only two stewards who testified to the con- ference, differ in any material respect from those of Bailey and Altman. It is noteworthy, and the undersigned finds, that neither during the conversations between Bailey and Altman, on the one hand, and the four officials of the C.- I. 0., on the other, which took place previous to the calling in of the five stewards, nor during the conversation after the arrival of the stewards, was any mention made by anyone of any interest in or activity on behalf of any labor organization other than the C. I. O. In other words, no charge of "dual unionism" was made as a reason for demanding the discharge of the stewards, nor any accusation by any of the stewards that their discharge was motivated by their activity in obtaining another bargaining agent. Nor did the repre- sentatives of the C. I. O. explain in what respect the stewards had failed to maintain good standing in the C. I. 0.; nor did Bailey, Altman, nor any of the stewards, inquire 6 Bailey testified credibly as follows as to his lack of knowledge of the C 1. O's motivation in requesting the discharges : 7 Q. Mr. Bailey, did you make any attempt to find out the reason why the persons you have named were discharged? 6 Smith testified that he did not engage in any conversation whatever with any of the representatives of the C. I. 0 , and Marshall's testimony fails to reveal any exchange of remarks with them. ' Wood's testimony to the effect that he made various but unsuccessful inquiries as to the meaning of the phrase "good standing," is hereinafter set forth in connection with sub- sequent discharges. COLGATE-PALMOLIVE-PEET COMPANY 1217 A. No. Q. Did you ask the C. I. 0. officials? A. I don't recall ever asking them, but we were sure that that was- that they had the right to suspend anyone for many different reasons. Q. Did you during that period e get information from any source as to the nature of the controversy, or what was said to be the nature of the controversy? A. No. Q. Did you read the Daily Press? A. Yes. Q. Was there anything in the Daily Press with reference to this con- troversy? A. The racial question came up in the papers, many of the papers that I read.' Between the break-up of the conference in Altman's office and the time of the meeting, C. I. 0. representatives distributed throughout the plant copies of a bulletin in the following form : ATTENTION ! Al! Warehouse Union Members : An illegal meeting has been called by certain employees of Peet's now under suspension as members of this union for violation of the membership oath, and other illegal acts. WARNING ! ! ! Any member of Local 6 who attends such illegal meeting or participates in violations of our constitution, does so at the risk of losing membership and employment. GENERAL ExECUTIVE BOARD, WAREHOUSE UNION, LOCAL #6, I. L. W. U. Unlike the notice posted on July 28 announcing the meeting of the Association, this bulletin was not, so far as the record reveals, posted on any of the bulletin boards. There is no evidence that the bulletin came to the attention of any of the respondent's officials. A substantial majority of the respondent's employees attended the meeting. During its course a motion was adopted to "withdraw from the C. I. 0. and Inter- national Longshoremen's and Warehousemen's Union, District #1, Local 6," and to "form an Independent Union and seek affiliation with another International." The narile "Employees Welfare Association" was adopted for the group. Another motion was carried "to work tomorrow morning pending settlement of 5 Brother Shop Stewards laid off by management at request of I. L. W. U. officials If shop stewards don't work, nobody works." Also adopted was a motion naming four employees, Edwin Thompson, Harold Lonuberg, Lincoln Olsen, and William Sher- man, whose alleged discriminatory discharges are hereinafter discussed, as a negotiating committee to seek the reinstatement of the discharged stewards. It 8 The witness is testifying to the period between July 30 and August 2. Subsequently , on October 10, as the result of a union trial, Marshall and Sherman were found guilty, among other things, of "discrimination " against negro employees in the han- dling of grievances. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was voted that the stewards should continue to perform their functions until an election of officers could be held10 It was stipulated, and the undersigned finds, that all the employees named in the complaint, with the exception of Rigo, Perieira, and Gilbert, attended this meeting and concurred in the action there taken. Upon the close of the meeting the following telegram was sent to the C. 1. 0.: YOU ARE HEREBY NOTIFIED THAT MORE THAN 200 EMPLOYEES OF THE COLGATE-PALMOLIVE-PEST CO, ALL BEING FORMER MEM- BERS OF YOUR UNION AND BEING MORE THAN 50% OF SUCH EM- PLOYEES BY ACTION TAKEN FOR SUCH PURPOSE HAVE AND DO HEREBY WITHDRAW FROM YOUR UNION, SEVER CONNECTIONS AND REFUSE TO BE FURTHER BOUND BY ANY OF THE LAWS RULES OR REGULATIONS OF-THE CONSTITUTION OF I. L. W. U. - EMPLOYEES WELFARE ASSOCIATION By Negotiating Committee E. H. Thompson W. Sherman - and the following to the respondent : YOU ARE HEREBY NOTIFIED OF ACTION TAKEN BY MORE THAN 200 EMPLOYEES OF COLGATE PALMOLIVE PEET CO ALL BEING FORMER MEMBERS OF ILWU 6 AND BEING MORE THAN 50 PER- CENT OF TOTAL EMPLOYEES HAVE WITHDRAWN AND SEVERED RELATIONS WITH ILWU-6 AS COLLECTIVE BARGAINING AGENT EMPLOYEES WELFAitE ASSOCIATION By Negotiating Committee E. H. Thompson William Sherman H. Lonriherg L. Olsen On the next day, July 31, Thompson, Lonnberg, Olsen, and Sherman went to Altman's office and requested that the respondent reinstate the five stewards Altman refused, stating that they had been suspended from membership by the C. I. 0., and that respondent hpd no choice, under its contract with the Union, but to suspend the stewards from their employment From Altman's office the committee went to Bailey's office where it informed Bailey of the dispatch of the telegram announcing that a majority of the employees had severed their membership in the C. I. O. The telegram arrived during the course of the con- versation. At Bailey's suggestion, C I. 0 officials, who were at the moment in Altman's office, were called in Bailey testified credibly as follows concerning the conversation which ensued : Q. Was this a free-for-all, or had either side spokesmen? A; I would say it was more or less a free-for-all. As I recall it, Mr. Lynden, the President of the C. I. 0., and Mr. Sherman of this negotiating committee, did most of the talking Q. Can you relate the gist of this conversation or talk between the two men? A. Well, to boil it down, the C. I. 0 people told this negotiating com- mittee that these people would have to stand trial on the charges against them, they could not work until those charges were disposed of, and they repeatedly reminded them . . of the oaths that they took when they joined the C I 0 and the consequence of a violation of those oaths, and assured them that they had done everything they could to get increases for the employees of the company, pointed out that the wages were frozen, "These findings are based upon the minutes of the meeting , in evidence. COLGATE-PALMOLIVE-PEET COMPANY nothing they could do about it negotiating committee walked out Q A. Q A 12191 . . and at one stage of the meeting the About what time would you say that was? Oh, I would guess it was probably about 9. 30 in the morning. Did you continue the conterence with the C. I. 0. officials? Yes, we did. Q What was the subject of the conference? A. We told them that our factory the afternoon before had been a very ... in a state of turmoil due to the fact of a lot of conversation and visiting, and, union people going through the plants, and people couldn't get their work done. And we asked them if they wouldn't leave the grounds, and they said,. Well, they would leave if this negotiating committee and the ... or rather if the five stewards that had been suspended would leave. And we immedi- ately went out to the factory and located the five stewards, and I believe, all of the members of the negotiating committee were with them at the same time, told them the request that we had made of the C I 0 officials, and told them we were going to make the same request,of them because the C 1 0. officials certainly wouldn't leave if they didn't leave, and they finally- agreed to leave. ' Sometime during the day of July 31, representatives of the C I. 0. handed Alt-- man a letter which was in substance as follows: This is to notify you that the employees below have been suspended from,, membership in this union and are no longer members in good standing. Pending the determination of charges which have been filed against those persons in accordance with our Constitution and By-Laws, you are requested,. in accordance with our Agreement, to remove these persons from your em- ploy until such time as you receive word from us in regard to their status. as members in this union ED THOMPSON, H LONNBERG, LINCOLN OLSEN, WILLIAM SHERMAN. During the morning of July 31, representatives of the C I 0. distributed copies; of the following circular in the plant: ATTENTION ALL MEMBERS I. L. W. U. #G EMPLOYED AT COLGATE, PALMOLIVE, PEET COMPANY LOOK BEFORE YOU LEAP BECAUSE OF A CONSTANT CAMPAIGN OF MISINFORMATION AND, FALSEHOODS CARRIED ON BY SIIERMAN-MARSHALL-LUNDEBURG & CO, MANY OTHERWISE RELIABLE MEMBERS OF OUR UNION ARE BEING MISLED DOWN A BLIND ALLEY, AND INTO ACTION THAT CAN ONLY RESULT IN LOSSES AND HARDSHIP FOR THE MEMBER- SHIP INVOLVED. THE UNSCRUPULOUS PEOPLE WHO ARE AT- TEMPTING TO PROMOTE STRIKE ACTION AT THIS PLANT ARE TRAITORS TO OUR UNION MEMBERSHIP, OUR FLAG AND OUR COUNTRY ! ALL MEMBERS WHO JOIN WITH THEM ARE JEOPARD- IZING THEIR OWN REPUTATION, THEIR UNION STANDING, THEIR SENIORITY AND THEIR JOBS! ANY STRIKE AT THIS PLANT WILL 712344-47-vol. 70-78 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BRING AN IJIMEDIATE DIRECTIVE FROM THE REGIONAL WAR LABOR BOARD TO RETURN TO WORK-AND WILL RESOLVE NO ISSUES-FANCIED OR OTHERWISE ! SO THAT ALL MEMBERS MAY UNDERSTAND THE TRUE SITUA- TION,,THE FOLLOWING IS A COPY OF AGREEMENT EXTENDING THE PROVISIONS OF THE UNION CONTRACT, INCLUDING TAE RE- QUIREMENT THAT ONLY MEMBERS OF WAREHOUSE UNION, LOCAL #6, 'I. L. W. U., IN GOOD STANDING MAY BE EMPLOYED BY THE COMPANY. IT WILL BE ENFORCED BY THE ENTIRE MEMBERSHIP OF OUR UNION, IF IT BECOMES NECESSARY. (Italics in original.) The provisions of the extension agreement of July 24 were set forth at the bottom of the circular. At noon on July 31, the four committeemen were active in rallying attendance at another meeting at Finnish Hall. At this meeting, similarly attended by a substantial majority of the respondent's employees, and presided over by Sher- man, it was voted to "continue the meeting until shop stewards all returned to work." Railey, upon the invitation of the group, appeared and answered in- quiries as to why the five stewards were not permitted to work. He stated, as he had previously done, to the stewards themselves, that under the respondent's contract with the C. I. O. the respondent could employ only those who were members in good standing in that union. He declared that the question of their good standing was one between the Union and the individual member. The meeting of July 31 was "recessed" until August 2, and for 27,2 days most of the respondent's employees, including those named in the complaint, stayed away from work Although the work stoppage il^as generally characterized as a "continuous meeting" by the employees involved. it is clear, and the undersigned finds, that it constituted a strike It is equally obN iuus that the five stewards and the four committeemen were among the leaders of the strike. It was stipulated that those who took part in the strike did so with full knowledge of the C. I. O.'s no-strike pledge." During the interval between July 31 and August 3, the four committeemen, Thompson, Lonnherg, Olsen, and Sherman, ieceivecl letters from the C. 1 0 ni the following form : In accordance with Article 15, Sections 1, 2 & 3, and in accordance with Section 7 of the same Article, of the Constitution of Warehouse Union, Local 6, International Longshoremen's & Warehousemen's Union, you are here- by notified that charges are preferred against you for the following violations of the Constitution and By-Laws of this organization. 1. Violation of Declaration of Principles. 2. Violation of Oath of Membership 3. Violation of Article 9, Section 1. You are hereby notified that in accordance with Section 14, of Article 15. the Executive Committee finds that there is good cause to believe the charges to be true, and you are, therefore, suspended as a member of this Local as of this date, losing all rights and privileges, pending a trial as pro- vided for in Article 15 of the Constitution of Warehouse Union, Local 6, I. L. W. U. At the meeting on August 2, also attended by a substantial majority of the employees, a resolution was adopted to dissolve the Association and to affiliate with the A. F. of L. Harvey Howard, A. F. of L. business agent, was authorized "to sign all necessary papers for the employees of Colgate-Palmolive-Peet Co. 71 This refers to the war-time pledge given by the I. L. W. U. and other affiliated C. I. O. unions. COLGATE-PALMOLIVE-PEET COMPANY 1221 relative to wages, hours, and conditions of employment." '3 The strike was called off, and on August 3 all the respondent's employees excepting the five stewards and the four committeemen returned to work. The committeemen were advised by Railey that their suspension had been requested by the C. I. 0. and that it would be useless for them to report for work 2. Alleged assistance to the C. I. 0. by the respondent during August On August 3, the day on which the respondent's striking employees, with the exception of the discharged stewards and committeemen, returned to work, the A. F. of L. filed a petition for certification of representatives. The period follow- ing was utilized by adherents of both the C. I. 0. and the A. F. of L. in campaign- ing for the union of their choice. Literature of both unions circulated freely, inside as well as outside the plant. A. F. of L and C. I. 0. buttons were widely and openly worn On various occasions, according to the credible testimony of witnesses called by the Board, employees were buttonholed on the job b^ C. I. 0 stewards and their support for the C. I. 0. solicited. There were occasions, revealed by the record, when employees whose loyalty to the C. I. 0. was wavering were threatened by C. I. 0. functionaries with discharge. The credible and uncontradicted testimony of Albert Zulaica, for example, concerning a conversa- tion with Hack Gleichman,' a representative of the C. I. 0, not in the respondent's employ, was to the following effect : TRIAL EXAMINER RucKEL • . . What else did lie say? THE WITNESS : Well, he say, "I think that you fellows have been misled," he says, "because we can throw you people out for wearing those A. F. of L. buttons." I said, "Well, you can't do that " I said, "If you start doing that you will have to throw the majority out because most of them are wearing an A. F. of L. button." TRIAL EXAMINER RLJCKEL: In the plant? THE WITNESS: In the plant, yes. Then he says, "We don't have to do that." He says, "We can pick some of you out, throw you out and claim that you were leaders, and that will scare the rest of them," and I said, "Well, we don't scare so very easy as all that" I says, "You will have to throw all of us out before we will ever stop," I said, "because most everyone here is fed up with the C I 0 " No supervisory employee was present during the above conversation. Later, Zulaica asked-Don Stanberry, production manager, for advice, and Stanberry said, according to Zulaica's version of the conversation, that if he would take off his A. F. of L. button he would have no trouble, but that if he wanted to belong to another union "they could never take that out of [his] heart." Stan- berry testified that he told Zulaica only that the respondent had been compelled to discharge the five stewards and four committeemen because of its contract with the C I. 0., but that Zulaica had as much of a right to express an opinion as any other employee, and that he should avoid a controversy with Steward Leacock. WhetherZulaica's version of this conversation, or Stanberry's is taken as the more accurate, the undersigned does not find that Stanberry's remarks were intimidatory. 12 Quoted from the minutes of the meeting, which are in evidence 13'i'he C I 0. appointed new stewards in place of the five discharged . Following their appointment, officials of the C. I 0, particularly Gleichman , appear to have been in the plant more frequently than previously. On the occasion in question Zulaica had been talk- ing with Leacock, one of the newly appointed stewards, who accused him of passing out A F of L. literature in the plant, and Gleichman had interposed in the conversation. 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further illustrative of activities of the C I. O. stewards, which the Board contends constitute interference, restraint, and coercion by the respondent, and additionally illustrative of the extent to which A. F. of L. as well as C. I. O. adherents solicited in the plant, is the credited testimony of Kay Norris and Nick Tate. That of Norris was as follows : Q. Did Non overhear any conversation that Mr Gleichman may have had with anyone in the Toilet Department? A. Yes. He went around to numerous employees on our floor and warned them to take their buttons off or they would be suspended as . . . they would be in the same predicament as the Stewards were. Q. Did you wear an A F of L button at work? A. I did. Q. Did you wear it prominently on your clothes? A. I wore it at all times. Q. Did you pass out any A. F. of L. literature? A. I did. Q. That was in the plant? A. In the plant. Q. Did you pass out A. F. of L. buttons? A. I did, in the plant. The testimony of Tate was as follows : Q. All right. Now what was the conversation? A. Well, Ed" told we he wanted to check my book, and I went in there and got my book, and I was just standing there and he said-he looked over to me and told-I don't know if he was talking to Hack (Gleichman), or the whole crowd, he said, "Check in Nick Tate's book. he was one of the A. F. of L. organizers." * * * * * * * Q., What was it again he said to you. Well? - An A. F. of L. organizer? A. He said, I was an A, F. of L. organizer. Q. Were you? A. Sure I was ! The record contains instances other than those cited above of stewards and organizers of the C. I. O. in effect, threatening employees with loss of employ- ment if they joined or assisted the A. F. of L. In no instance, however, so far as the record reveals, did any such conversation take place in the presence of any supervisory employee." The hearing on the A. F. of L's petition was held on August 22. On August- 25, there occurred an incident upon which is based the allegation of the com- plaint that the respondent refused A. F. of L. representatives access to the plant while granting it to C. I. O. representatives. On this date Harvey Howard, a representative of the A. F. of L., in the company of Luchsinger and Lonnberg, entered the plant without permission for the purpose of soliciting membership in that organization. They remained there until discovered by Cecil Carter, the respondent's process supervisor. Upon Luchsinger's admitting that they did not have permission to be in the plant, Carter requested the group to leave. Howard protested the presence in the plant of Carlisle Harrison, a representative 14 Ed Bopp, one of the newly appointed stewards. 11 In addition , at least one copy of a circular which contained among other things, a threat that adherents of the A. F. of L. might lose their employment , was posted on one of the three bulletin boards. However, there is no evidence as to how long it remained posted, or that it came to the respondent 's attention. COLGATE-PALMOLIVE-PEET COMPANY -1223 for the C. I. 0. After Luchsinger and Howard had left, Carter investigated Harrison's presence and ascertained that he had been brought into the plant by Gleichman to assist the latter in checking the dues books of the employees, a practice which the respondent had for several years permitted the C. I. O." After talking with Wood on the plant telephone, and on his instructions, Carter, according to his credible testimony, accompanied Gleichman and Harrison through the plant and saw that they did no "electioneering." The undersigned finds that the treatment accorded A. F. of L. representatives on this occasion, did not, in the circumstances, amount to interference, restraint, and coercion. 3 The discharges in late August and on September 1 Beginning on August 31, the respondent, upon the request of the C. I. 0, discharged several groups of employees who participated in the strike on July 30. The first group, consisting of six employees," were discharged on August 31, pursuant to a request from the C. I. 0. and a charge that they were not members in good standing of the C. I. 0. On September 1, the C. I. 0. posted a number of its adherents at the plant gate and checked the dues books of the employees as they entered the plant. Later that day the respondent received a letter from the C. I. 0., in substance as follows : This is to notify you that the employees named below have been suspended from membership in this Union and are no longer members in good standing. Pending the determination of charges which have been filed-,against these persons in accordance with our Constitution and By-Laws, you are requested, in accordance with our Agreement, to remove these persons from your employ until such time as you receive word from us in regard to their status as members in this Union. ROSE ROSS MARTIN HEPPLER ESTHER YOUNG BILL HOWARD INA M. PAIGE GLEX HIXON OPHELIA REYES ALDEN LEE KAY NORRIS AL BARBONI ANN CERRATO FELIX DENKOWSKI HENRY GIANNARELLI A. L. RICHARDS MANUEL SOUZA TERRY ANDERSON ALBERT ZULAICA K. PEI RIERA MIKE RAMIREZ Bailey called the designated employees to his office where, in the presence of Wood, Altman, Stanberry, and Carter, he read them the above letter and told them that they were suspended from their employment in conformity with the closed-shop provision of the 1941 contract. Several of the employees who were present testified that Railey added, in substance, that he had not wanted them to join a union and that now they must take the consequences, and that Wood said, in effect, that if the employees had "kept this about the A. F. of L. quiet." they would not have been discharged. Railey, Wood, Altman, Stanberry, and Carter testified either that Railey and Wood did not make the statement attributed to them, or that they (lid not hear them. The undersigned believes it improbable that either Railey or Wood made such statements and finds that they did not. e 16 It was stipulated that the respondent, since the execution of the 1941 contract contain- ing the closed-shop provision, has always permitted union representatives to collect dues in the plant. - 11 These employees were Calixto Rigo, Robert Ashworth, Thomas Azevedo, Manuel Munoz, Henry Hellbaum, and Nick Tate. 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wood testified that on several occasions he pressed C. I. O. officials for clari- fication of the phrase "good standing" as used in connection with the union membership of these 18 employees and others previously discharged, and that he received no satisfactory explanation In this connection he gave the following testimony credited by the undersigned : Q. Did Mr. Gleichman give any reason for wanting to have you remove these men? A. Well, he said they were in bad standing, that they were no good, and that they-a lot of them weren't up in their dues-In addition to that I think he said there were a large number that were not members of the union Q. When you called Paul Heide about this list of 18 did you ask him the reason why these men and women were being put in bad standing? A. I did. Q. What answer did you get from Heide? A. He said' that they 18 had violated their oath, the constitution and by- laws and their oath of office, their office of-the oath they took upon initia- tion, excuse me: Q. Well, did you make any further effort? A. I made further ones, yes, and I made previous ones. Q. And that is the most satisfactory answer you got? * * * * * A. That is the only answer I ever got. * Q. All right. On September 1, 1945, or let us even carry it further, Sep- tember 15, 1945, had you, Mr. Wood, formed any definite opinion for the reason why these men were being put in had standing by the Union? A. No, I hadn't. I was somewhat bewildered. Q. What was the reason for your bewilderment? A. Well, I didn't think it was only for union activities, or anti-union activities alone, because many people had not been disturbed that I had observed wearing buttons and passing out literature. (By Mr. HECHT) : Did those persons, A1r Wood, to whom you have refer- ence, continue to wear the A. F. of L. buttons and pass out the A F. of L. literature up to and including the date of the election? A. They did, sir. Q. Are those persons still in your employ? A. They are.YO is There is no evidence that the respondent had any knowledge of the provisions of the C. I. O.'s constitution or by-laws. 11 Altman testified credibly as follows concerning inquiries as to the nature of the C. I. O.'s complaints against those whose discharges were requested : Q (By Air HECnT ) And did any conversations ensue between the persons assembled there? A -Lynden said these men cited would have to stand trial , and if they were cleared of the charges that had been made against them , why, they would be welcomed to return to work, and also the union said they would pay them for the time they lost if they proved that they were innocent. Q. Did you inquire as to the nature of the charges made against these men? A. Well, we did at various times ask what the charges were, and the reply was that they were not in good standing and they would have to stand trial. Q. That is as much information as you got? A. That is right. COLGATE-PALMOLIVE-PEET COMPANY 1225 4. Later discharges Five other employees were discharged at intervals during the month of Sep- tember,20 in each case at the request of the C I. 0., made allegedly because of their failure to maintain membership in good standing Each was given a letter by the C. I. 0. advising hum to that effect The undersigned, on motion of the respondent, dismissed the complaint as to Rose Gilbert, one of these five em- ployees, since it appeared from her own admission that although she came to work on August 21, and joined the A. F. of L. a few days later, she had not joined the C. I. 0 by September 13. On this date according to her own testimony, when her discharge was requested, although Gleichman asked her to join the C. I. 0., she replied that she was going to wait until "matters were settled " The C I. 0. requested her discharge the same day. Richmond's uncontradicted and credited testimony concerning the circumstances surrounding his dLscharge was as follows: Q. All right. Well, now, lets have the conversation then that took place between Mr. Gleichman and you with no one else present? A. I was walking across this floor, and I had my A. F. of L. button on. He spied the button, he walks over and he says, "What in the hell are you doing in here?" and I says, "1 am working here," and he says, "How long have you been working?" I says, "About ten years." He says, "Did we see your book?" and I says, "You did." And he says, "Let me see it." And then is when I walked over to my boss. Carlson, Richmond's foreman, assured the latter that Gleichman was entitled to see his dues book, whereupon Richmond procured it, and showed it to Gleich- man. The following conversation ensued between Gleichman and Richmond, out of Carlson's hearing : Q. (Mr. HECHT) : You said what? The WITNESS : I said, "I will go and get it." So I went and got the book, and I gave it to him and he just opened up the back of it and got the number. And he says, "1916, huh?" That is all. And I says, "Now I suppose I will get one of your letters?" He says, "You will." Q (By Mr. Ro1STER.) And did you? A. I did. Edward Navarro came to work for the respondent in December 1944, as a machinist At that time he was a member of a machinist's union affiliated with the C. I. 0., and throughout his employment with the respondent maintained his membership in that organization, and did not join the I. L. W. U. His dis- charge was requested and effectuated on September 11. Allegro and Perucca were discharged on September 7. Although the circum- stances attending their discharge are not fully revealed by the record, it is clear that they were based upon their failure to maintain membership in good standing in the C. I. 0. Subsequent developments All the employees named in the complaint were brought to trial before a trial board of the Union, the five stewards and four committeemen on October 3, and 80 These were Frank Richmond, on September 5, Manuel Allegro and John Perucca_ on September 7, Edward Novarro on September 11, and Rose Gilbert on September 13. 7226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the others on December 17, 1945. None of the stewards or committeemen 21 ap- peared at the trial, and all were expelled. Those tried on December 17, who included the employees discharged on or after August 31, were charged only with participating in a strike in violation of the C. I. 0 's no-strike pledge.' Of the group of 18 who were discharged on September 1, all who appeared at the trial were found guilty of participating in the strike, deprived of their seniority at the respondent's plant, and placed on probation for 1 year, during which time they were not to be eligible to hold a position of trust in the Union They were, how- ever, given the privilege of working out of the C. I. O.'s hiring hall and of obtain- ing employment in other plants under contract with the C. I. 0 The respondent was given copies of the trial committee's formal decision with respect to all these elployees. Concluding findings The Board and the A. F. of L. contend that the foregoing facts require a finding that the respondent discharged the employees named in the complaint in violation of the Act, and urge that the decisions of the Board in the Rutland Court' and Portland Lumber Mills n cases are controlling. It may be readily admitted that one of the reasons, if not the` principal one, which motivated the C. I. O. in demanding the discharge of the five stewards and the four committeemen, was their activity in seeking to change the bargaining representative of the respondent's employees. The dinner meeting on July 28, and the open meeting on July 30, were the first steps to that end. Such activity may be protected by the Act after a question of representation has arisen, or, as here, when the contract is of indefinite duration and has run for a year or more." If the respondent knew that the only reason which prompted the C. I. O. was the "dual Unionism" of the employees in question, then its compliance with the C. I. O's request to discharge them was violative of the Act. This principle 21 The stewards and committeemen were charged with and found guilty of violating the union constitution and bylaws , the stewards by reason of the following acts: ( 1) attacking and violating the "no discrimination " policy of the union ; ( 2) using their positions to fal- sify the policy of the union and the status of the unions contract; (3) encouraging the non-payment of dues and non-attendance at union meetings ; ( 4) failing to present griev- ances honestly ; ( 5) refusing to post official C. I. 0 notices ; ( 6) conferring with enemies of the Union to destroy it. The decision of the trial committee itemized its findings, in fact, as follows "-For instance, they refused to put Section 10 of the Peets' contract into effect, which called for setting up stewards for each department . They refused to select a Chief Steward as required by the contract. They showed poor judgement in regaid to what grievances to present to management . They pushed many phony grievances.- It all amounts up in our opinion to sabotage of the steward's job. "The Union's political action program took a'bad beating from the stewards. For instance, they refused to carry out the mapdate of the union membership in regard to financial support for the National Citizens Political Action Committee. They sabo- taged collection of funds for the defense of Harry Bridges, President of the I. L. W. U. They opposed the program for keeping out the Little Steel formula. They bucked the Union's program in regard to enforcing O. P. A. regulations " The specific charges against the committeemen were for the most part similar to those lodged against the stewards. In addition, the committeemen were accused and found guilty of promoting and leading the strike of July 31, in violation of the C. I. O's no strike pledge. 22 With the exception of the six discharged on August 31, who were also accused of of- fenses similar to those charged against the committeemen. 23 Rutland Court Owners, Inc., 44 N. L R. B. 587, and 46 N L R B 1040 24 Portland Lumbei Mills, 64 N L R. B 159 ; 17 L R R 614. 25 Cf. Southwestern Portland Cement Company, 65 N L R. B. 1, where such activity was held not protected by the Act when it occurred at a time when the contract had 8 months to run, and when the activity was designed to effect an immediate change in the bargaining representative. COLGATE-PALMOLIVE-PEET COMPANY 1227 was established by the Board in the Rutland Court case where the Board pointed out that if the closed-shop proviso of the Act were to be interpreted so as to require an employer to discharge employees solely because they attempted to change their bargaining representative, the Union which obtained a closed-shop contract would tend to become self-perpetuating. Where the employer has lacked knowledge, as in the Diamond T case,26 the Board has dismissed the' complaint. The undersigned finds the element of knowledge lacking in the instant case Its absence is perhaps more apparent in connection with the five stewards than it iS with respect to the other employees" It is admitted that the respondent did not know of the dinner meeting on July 26, and the undersigned has found that the posted notice of the meeting of the Association on July 30 ine ant nothing to the respondent who was not then aware of any steps to change the union affiliation of its employees Moreover, there was nothing in this notice to con- nect the stewards with the Association Theie is no reason to doubt Railel's testimony that when, on July 30, the C. I. O. officials handed him a letter invoking the closed-shop provision of the 1941 contract with respect to the five stewards, the respondent was caught by surprise Nor did the later conversa- tion between representatives of the C I O. and the respondent, and the still later one between them and the five stewards, during which the latter were informed of their discharge, serve to enlighten the respondent. During neither of these conversations was any accusation made by any of the stewards or by anyone else that the C. I. O's demand was based on any other than lawful grounds. It is true that Railey did not .inquire as to the precise grounds; but he was not obligated to do so. When Wood and Altman, on subsequent occasions, inquired of C. I. O. representatives as to the nature -of the charges against suspended union members , they were told merely that they were no longer in good standing. Although the respondent's officials might have suspected that the stewards were interested in changing their union affiliation, there was no evidence or claim to this effect before them when the discharges were effectuated On, the contrary, during this period, Railey, according to his credible testimony, read in the papers that certain C I. 0 stewards were being accused of racial dis- crimination and inferred that this had something to do with their suspension from union membership. The conclusion that the respondent was under no obligation to investigate the motives which prompted the C. 1 0., or to analyze and weigh alternate or mixed motives in an endeavor to ascertain which were decisive and which were only contributory in 'impelling the C. I O. to suspend certain of its members and to request their discharge, is hereinafter more fully discussed in connection with the discharges on July 31 of the four committeemen, and the still later dis- charges of other rank and file union members, as to whom, because of interven- 26 Diamond T Motor Car Compani, 64 N. L R. B 1225. 27 It maX be reasonably argued that the respondent's knowledge was immaterial in the case of the stewards, and that the Union would be justified in expelling and the respondent in discharging them even though their "bad standing" in the C I 0 was founded on dual unionism. alone This view takes cognizance of the difference in the degree in loyalty owed by a functionary of a union and a rank and file member, and the strategic position which a steward or an officer occupies in the administration of a union As has been found, the stewards here were charged and found guilty eventually by the C I 0. of sabotaging the policies of the inteinational organization If may well be that if a steward or other functionary of a labor organization seeks to supplant that organization with a competing labor organization , he should first resign his office, and that if he does not, but engages in dual unionism , the first union may expel him even though by so doing it'places him in the.lme of discharge by the employer 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing events, the respondent had more knowledge than it had on July 30 when It was compelled to take action with respect to the stewards. The degree of knowledge which the respondent had at the time it separated the stewards from its employment appears to the undersigned as less than that which the employer had in the Diamond T case where, as the Board found, the employer knew that the employees in question were active on behalf of a rival union. In the instant case, there is no evidence that the respondent had such knowledge as to the stewards. It is agreed that it had no notice of the dinner meeting on July 28, and there is no evidence that it acquired any in- formation as to the dual union activities of any employee between that time and the moment when, on July 30, the C. I. 0 first invoked the contract. Nor, so far as the record reveals, did the bulletin distributed by the C. I 0. on July 30, warning against attending the "illegal" meeting called for that day, come to the respondent's attention. While it is probable that the respondent's officers knew that a meeting was to take place after working hours on that day, apparently its first information as to its purpose was derived from the telegram dispatched upon the close of the meeting, signed by Thompson, Sher- man, Lonnberg, and Olsen, in the name of the Association. This telegram did more than reveal that a group of the respondent's employees were interested in a labor organization competing with the C. I. 0. It announced that a majority of the employees considered themselves as "former members", of the Cl. I. 0., who had "withdrawn and severed relations with" it. Although the respondent appears not to have received this telegram prior to the arrival of Thompson, Sherman, Lonnberg, and Olsen, the four com- mitteemen, in Railey's office the next day, they informed Railey of its contents. The respondent, therefore, must have viewed the committeemen as employees who, for whatever reason, had voluntarily quit the C. I. 0. When the respondent shortly thereafter received a letter from that organization requesting that the employment of the committeemen be terminated, the respondent could not reasonably have concluded that the request was based only upon the committee-, men's activity on behalf of the Association, and was uninfluenced by the an- nouncement of their withdrawal from the C. I. 0. Assuming, for the moment, that the respondent believed that both factors prompted the C. I. O.'s request, the undersigned knows of no feasible method by which the respondent could deter- mine which factor was the motivating one in the C. I. O.'s decision to invoke the closed-shop provision of the contract R8 The meeting at noon on July 31, attended by Railey, and the ensuing strike for 2% days, revealed to the respondent the scope of the dissatisfaction with the C. I. 0. Thereafter, the respondent was faced by two labor organizations, each contending for the allegiance of its employees. ' Proponents of each organization distributed literature openly in the plant, and wore buttons indicating the union of their choice. Statements of C. I. 0 organizers to various employees, such as that of Gleichman to Zulaica, that those wearing A. F. of L. buttons could be "thrown out," serve to throw light on the motive of the C I. 0. in requesting the discharges. No such statements were made, however, in the presence of any supervisory employee. The C. I. 0. conducted dues checks on August 25 and September 1. On August 81, it requested that six employees be separated from their employment because of their failure to maintain membership in good standing in the contracting union. This request was followed on the next day by a similar one as to 18 39 Or is the presence of an illegitimate motive alongside a legitimate one, sufficient, as the Board has frequently ruled where discharges absent a closed shop are concerned, to render a discharge violative, of the Act? The undersigned does not believe that it is COLGATE-PALMOLIVE-PEET COMPANY 1229 other employees, and, finally, during the following week by demands as to 5 more. In each instance the C. I. O. stated only that the employees had been suspended from membership because they were no longer "in good standing." Wood's in- quiries as to what was meant by "good standing" were little more successful in eliciting information than were similar inquiries by Altman. Wood was told, however, that some of the employees in question were behind in their dues and that others were not members of the union. As has been found, this latter statement was true as to Gilbert and Navarro 2D The respondent knew on August 31 that many of its employees were dissatis- fied with the C. I. O. and were actively promoting the A. F. of L., and that the question concerning representation was before the Board for decision. It knew that an election would in all likelihood be ordered, and that the C. I. O. would be in a favorable strategic position if employees adverse to it were removed from their employment and their places taken, as of necessity they must be, by em- ployees furnished through the C. I. O.'s hiring hall.'* The respondent knew all these things. On the other hand it could reasonably conclude that these employees had been among those participating in the strike on July 31 in violation of the C. I. O.'s wartime no-strike pledge 31 and it must have assumed that which was the case, that they had attended the meeting on July 30 when the telegram was dispatched informing the respondent that a number of employees had severed their connection with the C. I. O. Moreover, so far as the respondent was aware, there might have existed other reasons relating to the internal affairs of the Union, or pertaining to some element of its policy or program, which prompted the suspensions from membership. One such matter of union policy-the C. I. O.'s attitude toward racial discrimination, slid come to Railey's attention through the newspapers. Here, again, as in the case of the stewards and the committeemen, the re- spondent was under no duty to investigate to ascertain the real motive of the C. I. O. where there was evidence that conflicting motives existed. As the Board said in the Diamond T case: While the respondent knew of the activities of these employees on behalf of the Union during the pendency of a question concerning representation, it does not follow'that the Independent was motivated by such activities and not by lawful considerations in demanding their discharge. In the Diamond T case, the respondent did not have knowledge of any activity by the employees in question which might have prompted a demand for their discharge, other than their activity on behalf of the rival union. In the instant case, the respondent had knowledge of at least two other facts, one, participation by the employees in an unauthorized strike, and the other, the announcement of their withdrawal of union membership-either of which furnished a lawful basis ford suspension by the Union. That the contracting union might properly discipline members for participat- ing in a strike called in violation of union policy, by suspending or expelling them, seems to the undersigned hardly open to question. A labor organization, no less than any other organization, cannot be denied the authority to compel compliance with the decisions of its membership. "Good standing" in an organ- ization implies something more than the mere payment of dues. Navarro, however, as has been found, was a member of another C. I. 0. Union. 0 The number of employees in the unit increased from approximately 313 on July 31, to approximately 390 at the time of the election. The new employees, of course, were mem- bers of the C I. 0 31 There is evidence in the record that the strike was the only one participated in by members of the West Coast I L. W U during the recent war. 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C It is sometimes difficult to determine where permissible activity on behalf of a rival organization carries over into such overt acts of sabotage or obstruction directed against the contracting union, as seriously to impair the labor govern- ment in the plant and to invoke the union' s discipline . It is for this reason, perhaps, that unions ordinarily seek to proscribe any activity on behalf of another labor organization, and to stigmatize it as "dual unionism " When this attempted proscription during an appropriate period, however, enlists the knowing coopera- tion of the employer, with the consequence that the offending member is dis- charged and deprived of his livelihood, the Board has not hesitated to find a violation of the Act. In each such instance, however, the Board has required knowledge by the employer, derived from information in its possession at the time it effectuated the discharge This information has heretofore been of such a nature as not to require any interpretation 'of evidence, or any independent investigation on its part. 87 The reasons for this seem clear. Any effective investigation which the em- ployer might undertake would almost necessarily involve it in the internal affairs of the Union, and expose the respondent to a charge of interference, restraint, and coercion in violation of the Act. In the instant case, for the re- spondent to determine to what extent participation in the strike of July 31, and the non-payment of dues, contributed to the suspension of the employees involved, and to what extent their activity on behalf of the A. F. of L. was a factor, the respondent would probably have had to question officers of the C. I. O. and to have had access to the minutes and records of the meeting or meetings at which the Union's decision to suspend them was made. Even then the respondent could hardly have escaped assuming the role of a judge. Such access to the records of a union, is, in effect, barred to him by the operation of the Act. In any event, he has no means of compelling it. The undersigned therefore finds that the respondent did note violate the Act by discharging the employees named in the complaint because of the suspension of their membership in the C. I. 0, in view of the lawfully agreed requirement of membership in that organization as a condition 'of employment. Accordingly, the undersigned will recommend that the complaint herein be dismissed. The objections to the election The undersigned has found that the discharges of the employees named in the complaint did not constitute an unfair labor practice. He now finds that they do not afford a basis fo'r setting aside the result of the election on October 16. It may be noted that none of the discharges took place after the Board's finding, on September 26, that a question of representation had arisen, and directing an election. The undersigned has found that the respondent did not engage in any other act of interference, restraint, and coercion in violation of the Act. Althbugh, as has been found, certain representatives of the C. I. 0., without the knowledge of the' respondent, in conversation with employees, threatened them with discharge if they persisted in activities in behalf of the A F of L such statements seem 32 In the Rutland Court case, for example, the business agent of the A. F. of L , the contracting union , called the employees into the office of the employer where both the employer and the union agent pressed them to state to which labor organization they gave allegiance . When they answered that they preferred the C. I. 0., the agent stated to the employer that the employees had "double crossed" him and forthwith replaced them by others. No reason other than their interest in the C I 0 was alleged. In Portland Lumber Mills, the dischargee showed the employer the formal charge against him which stated that he, had given "aid and support to a dual organization " COLGATE-PALMOLIVE -PEET COMPANY 1231 to have had little, if any effect ; and partisans of the A. F. of L. continued openly to wear A. F. of L. buttons and to distribute A F. of L. literature in the plant. Moreover, all such threats, so far as this record reveals, took place prior to the finding of the Board that a question concerning representation had arisen, and were fairly remote from the election in point of time. Although the Board has on occasion set aside the results of an election because of the conduct of one of the participating unions in which the employer did not participate and for which it was not responsible, the undersigned does not believe that the factual situation as revealed by this record warrants such a step here. The undersigned will recommend that the objections to the election be overruled. Upon the basis of the foregoing findings of fact and the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Chemical Workers Union, affiliated with the American Fed- eration of Labor, and Warehouse Union No. 6, International Longshoremen's and Warehousemen's Union, affiliated with the Congress of Industrial Organizations, are labor organizations, and Colgate-Palmolive-Peet Employees' Welfare Asso- ciation, unaffiliated. was a labor organization, within the meaning of Section 2 (5) of the Act. - 2. The respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. - 3 The respondent has not engaged in any unfair labor practices, within the meaning of Section 3 (1) and (3) of the Act. - RECOMMENDA TIONS Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, the undersigned recommends that the complaint against the respondent, Colgate-Palmolive-Peet Company, San Francisco, Cali- fornia, be dismissed in its entirety. The 'undersigned further recommends that the A F of L's objections to the election be overruled. 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)'da`ys 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 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 state- ment 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, re- quest therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. Dated March 27, 1945. HORACE A. RUCxEL, Trial EFaminer.