Eaton Manufacturing Co.

In the Matter of EATON MANUFACTURING COMPANY, WILCOX-RICH DIVISION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW- CIO), and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, AND LOCAL 433, INTERNATIONAL UNION, UNITED AUTOMOBILE WORK- ERS OF AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, PARTIES TO THE CONTRACT Case No. 7-C-1,568.-Decided February 00, 1948 Mr. Max Rotenberg, for the Board. Crane, Crane cC Kessel, by Messrs. Lloyd T. Crane and Benjamin D. Kessel, of Saginaw, Mich., and Hauxhurst, Inglis, Sharp & Cull, by Messrs. Frank X. Cull and Richard Inglis, Jr., of Cleveland, Ohio, for the respondent. Messrs. Maurice Sugar and N. L. Smokier, of Detroit, Mich., for the UAW-CIO. Padway cC Goldberg, by Mr. David Previant, of Milwaukee, Wis., for the UAW-AFL. DECISION AND ORDER On October 9, 1946, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the re- spondent had engaged and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent and the UAW- .AFL filed exceptions to the Intermediate Report and supporting briefs.' On October 16, 1947, the Board at Washington, D. C., heard oral argument, in which the respondent, the UAW-AFL, and the UAW- CIO participated. The Board has considered the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The I The respondent also filed a motion, which is hereinafter discussed. 76 N. L. R. B, No. 40. 261 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications : 2 1. The Trial Examiner found, and we agree, that the respondent violated Section 8 (1) of the Act by renewing the agreement with the bargaining committee of the UAW-AFL in May 1946, inasmuch as the respondent then knew that the bargaining committee intended to use the membership-maintenance provision of that agreement as a device to obtain the discharge of certain employees because of their past UAW-CIO activity. The finding as to the bargaining committee's discriminatory motivation was not seriously contested ; on the con- trary, counsel for the UAW-AFL stated at the oral argument : "We will assume that fact to be true." With respect to the finding that the respondent knew of the bargain- ing committee's purpose, the evidence set forth in the Intermediate Report or admitted by management representatives at the hearing shows that in the early part of April 1946 the respondent learned of the renewed efforts of some employees at its Saginaw plants, as the cur- rent agreement was drawing to a close, to replace the incumbent UAW- AFL with the UAW-CIO. On April 12, the UAW-CIO sent the re- spondent a letter, in part stating that the UAW-CIO "recently . . . learned that certain officials of the UAW-AFL have indicated that any- one who signifies preference for the UAW-CIO . . . would be discharged," that the employees were being advised that it was illegal for the respondent to effect such discharges, and that the UAW-CIO would protect its supporters. On April 17 Russell, the respondent's plant manager, was presented with a demand from the bargaining coin- mittee for the interim suspension of complainant Boyd and another employee not involved in this case (Knapp) in accordance with the membership requirement of the current agreement, on the ground that they were not members in good standing. At about the same time he was confronted with a further demand from the bargaining commit- tee for the discharge of complainant Stoner on charges of misconduct toward fellow employees and theft of company property. But Russell, admittedly mindful of the UAW-CIO activity of the employees involved, refused to comply with the bargaining commit- tee's demands. Instead, he immediately communicated with his supe rior, Industrial Relations Manager Minsel, who together with other representatives of the respondent met with the bargaining committee on the following day, April 18. At this meeting the bargaining com- 2Those provisions of Section 8 (1) and (3) of the Act, which the complaint herein alleged and the Trial Examiner found were violated, ale continued in Section 8 (a) (1) and (3) of the Act as amended by the Labor Management Relations Act, 1947. EATON MANUFACTURING COMPANY 263 mittee pressed its demands, refused to give any supporting reasons other than asserting that the three employees were not in good stand- ing, and based its refusal to give further details on the ground, as Minsel testified, that ft was "none of . . . [the respondent's] busi- ness" and was "strictly a union matter." 3 Minsel, according to his fur- ther testimony, thought that the UAW-CIO's advent was "something that should be taken into consideration"; and he therefore "brought up ... certain rulings" of the Board which "apparently laid down different ground rules . . . as the contract was about to terminate," disagreed with the bargaining committee's position that under the agreement he should discharge any employee who was not in good standing, and refused to accede to the demands until lie had an oppor- tunity to "look into this thing some more and talk to our attorney." On the next day, April 19, Minsel consulted the attorney. The conclusion was reached that under the known circumstances 4 there was a "definite possibility" that the UAW-AFL's charges were based on a change of affiliation; and, as Minsel admitted at the hearing, it was decided to re- ject the UAW-AFL's demands until the respondent was "assured" that the UAW-AFL's "charges were not based on any change of affiliation on the part of the accused parties." Before the respondent was able to advise the UAW-AFL of this decision, however, it was served with temporary restraining orders issued by a State court in actions against it and the UAW-AFL and others as defendants, in part restraining the UAW-AFL from ex- pelling complainants Boyd and Stoner (and also Knapp) pending hearing by the court, and meanwhile restraining the respondent from discharging them under the current agreement. Attached to the restraining orders were the supporting papers, including a copy of the UAW-AFL's charge that Boyd was suspended from membership in the UAW-AFL in part on charges of "violation of the oath of loyalty" and "fostering a secession." Russell admitted at the hearing that he then realized that "there was this inter-union fight," that "Boyd was ' On an occasion not precisely dated in the record, Russell told the bargaining committee that the charges of misconduct against Stoner were "none of their affair," inasmuch as he felt, as he admitted at the hearing, that the bargaining committee was "alway s reaching" beyond the membership requnement of the agreement in seeking to obtain the discharge of employees. " The known circumstances, in addition to the various wainings given on behalf of the complainants, as set forth in the Intermediate Report, included the widespread notoriety of the jurisdictional dispute , the prominent publicity accorded by the local press to reports of threats by UAW-AFL repiesentatrves to have employees discharged for UAW-CIO activity; particularly a report, which was proved tine at the hearing (by the credited testimony of the newspaper reporter), that a member of the bargaining committee had stated sometime in April that the bargaining committee's efforts to secure the discharge of Boyd and Stoner were due to their UAW-CIO activity , and, as Russell admitted at the heaiing, his conference with 1111nsel and a company vice president around the middle of April relating to the UAW-CIO's recognition demand, at which the conferees concluded that a "fight" was on between the UAW-AFL and the UAW-CIO as to which organization was entitled to represent the employees. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD active on behalf of the [UAW-] CIO," and that the UAW-AFL charged Boyd in part with "working for a rival uiiion." And Minsel, according to his own testimony in connection with the UAW-AFL's later demand for the discharge of another complainant, "understood" and "assumed" that the term "fostering a secession" meant being "involved in a movement against" the UAW-AFL. Although the bargaining committee told Russell that they were go- ing to submit discharge demands with respect to the remaining com- plainants, Harris and Harvey, and although Russell replied, accord- ing to his own testimony, that such demands "were all tied into one" with Boyd's and Stoner's and would not be acted on until the tempo- rary restraining orders were disposed of, the bargaining committee nevertheless demanded late in April that the respondent also discharge Harris and Harvey, on charges of misconduct toward fellow em- ployees. On April 25, the respondent sent the Board's Regional Director a letter, signed by Minsel, in part conceding that "despite the provisions of the present Closed-Shop Agreement the Company could be charged with an unfair labor practice in the event that it should accede to the request" of the UAW-AFL. The letter enclosed a copy of another letter signed by the respondent's counsel, in part stating that it was possible that the UAW-AFL's discharge demand "arises out of jurisdictional animosities" with the UAW-CIO, and reiterating that he had advised the respondent not to make any discharges until assured that the demands were not based on any change of union af- filiation. Early in May, after the temporary restraining orders against the respondent had been dissolved and like orders against the UAW-AFL had been modified to permit that organization to expel Boyd and others in accordance with the organization's constitution, the UAW-AFL expelled Boyd from membership. On May 11, the bargaining committee again demanded that the respondent discharge him, on the ground of his expulsion. However, the respondent did not take any action on this demand during the 4-clay period to the expiration of the current agreement. On May 13, 1946, the respondent, with admitted knowledge that the UAW-AFL intended to continue to press for the discharge of the complainants, nevertheless negotiated a new agreement with the UAW-AFL, effective for a 2-year period commencing May 16, 1946, and providing in part that as a condition of employment all employees "who are or may become" members of the UAW-AFL should main- tain their membership as a condition of employment.5 s The agreement also covered other plants of the respondent in addition to the Saginaw plants here involved A stipulation executed contemporaneously provided that the coverage of the Saginaw plants was "contingent" on the outcome of the UAW-CIO's petition and charge. EATON MANUFACTURING COMPANY 265 The respondent, while admitting that the known facts indicated to it that the bargaining committee may have intended to use the 1946 agreement to obtain the discharge of employees for their UAW-CIO activity, argues that it did not definitely "know" that such was the committee's intention. We do not agree with the respondent's argu- ment. Thus the respondent, before entering into the agreement, had admittedly refused to comply with the bargaining committee's dis- charge demands, not merely because of its own misgivings as to the committee's motives, but significantly because the committee had re- fused either to deny widespread reports (in the UAW-CIO's April 12 letter and the press) that UAW-AFL representatives had threatened employees with discharge for their UAW-CIO activity, or to giye any assurance to the respondent that its demands were not based on the complainants' UAW-CIO activity. On the contrary, it was specif- ically admitted at the hearing that the respondent knew, before enter- ing into the 1946 agreement, that the bargaining committee's discharge demand with respect to complainant Boyd was motivated at least in part by the fact that Boyd was "working for a rival union," and that the other discharge demands were "tied into one" with Boyd's. We find that the foregoing evidence sufficiently indicates that the respond- ent had knowledge of the committee's intention.' We further find that, under the foregoing circumstances, this case falls squarely within the principle of the Wallace case, where we held : An employer may not enter into a closed-shop contract which to his knowledge is designed to operate as an instrument for effect- ing discrimination against his employees solely because of their prior union activities 7 The respondent also argues that it did not renew the agreement vol- untarily, but was forced to do so by the UAW-AFL's strike threats ; e For comparable cases involving a definition of the concept of knowledge, see Matter of Rheem Manufacturing Company, 70 N. L. R B. 57, Matter of Lewis Meter & Company, 73 N. L R B. 520 ; Mattter of E. L. Bruce Company, 73 N. L. It. B 992 ( Case No. 15-C- 1045 ), 75 N L. It. B. 522 ( Case No 15-C-1043) Matter of The Wallace Corporation, 50 N. L It. B. 138 , 153, enf'd 141 F. (2d) 87 C. C A 4), aff'd 323 U. S . 248, 250-1. In affirming the Board's interpretation of the provisio , the Supreme Court stated (323 U. S., at 256) : We do not construe the provision authorizing a closed shop as indicating an intention on the part of Congress to authorize a majority of workers and a company , as in the instant case, to penalize minority groups of workers by depriving them of that full freedom of association and self-organization which it was the prime purpose of the Act to protect for all workers. See also Matter of Monsieur Henri Wines Limited, 44 N L. R. B. 1310, 1319, where the execution of a union-shop agreement with an AFL union was expressly found"to violate the Act, and the agreement was ordered abrogated , on the ground that the agreement had been entered into by the employer with knowledge that it was to serve as a "device for depriving the employees of their jobs" because of not having joined the contracting union before the agreement was made. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD k and that the Wallace case is therefore inapplicable. We find no merit in this argument. The respondent's unfair labor practice rests on what it did, and cannot be justified by the reluctance with which it did it, however much we may sympathize with the difficulty of its position 8 The UAW-AFL argues that the Wallace case applies only to labor organizations found to exist in violation of Section 8 (1) or (2) of the Act, and holds merely that the Board is not precluded from so finding by the fact that it had previously certified the labor organization after an election. As heretofore, we again find this argument without merit.9 Moreover, any uncertainty that may have resulted from the Supreme Court's opinion in the Wallace case was cleared up in the subsequent case of Hunt v. 0relmboch,10 in which the Court interpreted the Wallace case as applying to all labor organizations acting pur- suant to statute as exclusive collective bargaining representatives, without limitation to company-dominated organizations. We find that the respondent violated Section 8 (1) of the Act by entering into the agreement with the UAW-AFL in May 1946 under the circumstances set forth above. 2. After the issuance of the Intermediate Report herein, the re- spondent filed a motion with the Board to reopen the hearing to take evidence (1) that the UAW-CIO, immediately after filing its repre- sentation petition in April 1946, filed a series of unfair labor prac- tice charges "for the purpose of preventing the immediate processing of said petition for election until the petitioner's organizational activi- ties had progressed to a point where it really desired an election" ; and (2) that the Regional Director and his agents improperly refused to hold an election as requested by the UAW-CIO's petition and urged by the respondent. The motion further requested, in the alternative and without waiving the first request, that the instant case be con- solidated with certain so-called representation cases. The motion is hereby denied. The respondent did not show that the evidence to be proffered, which relates only to representatives of the UAW-CIO and the Regional Office, would be material to the finding, made by the Trial Examiner and herein adopted, that the respondent entered into the 1946 agreement in disregard of the statutory rights of its em- ployees. Moreover, the respondent did not allege, in the supporting papers filed with its motion, that it was duly diligent in seeking appro- priate relief upon discovery of the proffered evidence. On the con- trary, most of the evidence could have been adduced at the hearing 8 See, for example, Matter of C W Hume Company, 71 N. L. R. B 533, 565. 9 See, for example , Matter of The Cliffs Dow Chemical Company, 64 N. L R. B 1419, 1420. 10 325 U. S. 821, 826. EATON MANUFACTURING COMPANY 267 already had herein, and the small amount of remaining evidence (in- volving post-hearing events) was discovered by February 1947, and could have formed the basis for objecting to the Regional Office's no- tification to the respondent at that time that the UAW-CIO's petition was being dismissed subject to appeal to the Board within 10 days. As for the so-called representation cases sought to be consolidated with the present case, they were admittedly no more than petitions admin- istratively dismissed without the holding of a formal hearing. There are therefore no cases to consolidate with the instant case. 3. The Trial Examiner found that the respondent violated Section S (1) of the Act by executing the 1946 agreement with the UAW-AFL while the UAW-CIO's previously filed representation petition was pending before the Board undetermined. Because of the UAW-CIO's subsequent conduct in preventing a, prompt determination by filing an unfair labor practice charge against the respondent which we find to be groundless," we do not adopt this finding. 4. The Trial Examiner found, and we agree, that the respondent violated Section 8 (1) and (3) by discharging the complainants because of their expulsion by the UAW-AFL. The respondent does not con- test the factual finding, but defends the discharges as a matter of law, on the ground of the proviso to Section 8 (3) and the 1946 agreement allegedly made pursuant thereto. We find no merit in this argument. As we have found above, the respondent entered into the 1946 agree- ment unlawfully, in view of its knowledge of the use the bargaining committee intended to make of the membership provision ; and it there- by unlawfully assisted the UAW-AFL. Discharges which would be unlawful in the absence of an agreement cannot be defended by assert- ing the existence of an agreement unlawful in itself.12 In addition, as the Trial Examiner found, the UAW-AFL cannot escape responsi- bility for the bargaining committee's discriminatory motivation in u The Thal Examiner found that the charge was not groundless, inasmuch as the respondent had violated Section 8 (1) by the remark of Superintendent Levi on April 11 or 12, 1946, as set forth in the Intermediate Report We do not agree with this finding Levi's remark was uttered in the absence of any prior anti-union background chargeable to the respondent ; it was ambiguous at most and did not contain any threat that the respondent would use the existing agreement as a pretext to discharge employees for UAW- CIO activity ; and on the entire record the respondent was not shown to be opposed to the objectives of the Act, as the Trial Examiner specifically conceded. Under similar circum- stances, the Circuit Court of Appeals for the Eighth Circuit , in N. L R. B. v Scullin Steel Compaug (161 F. (2d) 143), iefused to sustain a finding that the employer had violated the Act, stating : Over a period of several years, the making of a single unwarranted remark to an employee, in the face of respondent s definite public announcement of its policy, the certification of Independent as the employees' representative , and a record otherwise clear of labor union hostility , is, we think, insufficient to sustain a finding of domina- tion or interference. Mr Reynolds is of the opinion that, although the general reasons which motivated his dissent in the Lewis Meier case, 73 N L R 13 520, are equally applicable to the facts of the instant case , lie is bound here by the decision of the Supiems Court in the Wallace case. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD securing the discharges, in view of the fact that the committee-ad- mittedly the UAW-AFL's principal representative with relation to both the respondent and the complainants-would not have sought the complainants' expulsion or discharge but for their UAW-CIO activity; :13 and the respondent was aware of this motivation, as is shown by its statement to a Selective Service Board that Boyd was expelled and discharged for his UAW-CIO activity, and by Minsel's admitted assumption that the other complainants were expelled and discharged because "involved in a movement against Local 433" and Russell's admitted belief that they were "actually being expelled for their [UAW-] CIO activity." Although counsel for the UAW-AFL suggested at the oral argument that the UAW-CIO activity of Boyd and the other complainants was improper because engaged in while they were officers or committee- men of the UAW-AFL, we note that the UAW-AFL expelled the complainants and demanded their discharge, not because of any alleged misconduct in a position of trust within the organization, but because of other alleged' misbehavior as rank-and-file members of the UAW-AFL. We therefore find it unnecessary to pass on the point raised at the oral argument. In addition, we note that Boyd was not covered by the membership requirement of the 1946 agree- ment under which he was allegedly discharged, inasmuch as the pro- vision by its very terms failed to include previously hired employees who were non-members of the UAW-AFL when the agreement was entered into. We find no merit in arguments (1) that the provision included Boyd because it was a renewal of an expiring provision which included him and did not contain any new escape period, and (2) that the provision which was in effect when Boyd's discharge was first demanded, but which had expired by the time of his discharge, could be used as justification for the discharge. TEE REMEDY Although we do not wholly agree with the bases on which the Trial Examiner found the respondent to have violated Section 8 (1) and (3) of the Act, as appears above, we find that his recommendations, with the minor modifications hereinafter set forth, will effectuate the policies of the Act, as amended. ' See Matter of Durasteel Company, 73 N. L. R B. 941. However, we do not adopt the Trial Examiner's conclusion that the respondent thereby violated the Act within the meaning of the Rutland Court case , 44 N. L. R. B. 587, 46 N. L. it. B. 1040. EATON MANUFACTURING COMPANY 269 ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Eaton Manufactur- ing Company, Wilcox-Rich Division, Saginaw, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Recognizing International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, or Local 433 thereof, as the collective bargaining representative of any of its employees at its Saginaw plants, unless and until pursuant to a certi- fication by the Board; (b) Giving effect at its Saginaw plants to its contract of May 16, 1946, with International Union, United Automobile Workers of Amer- ica, affiliated with the American Federation of Labor, or Local 433 thereof, or to any extension, renewal, modification, supplement, or superseding contract, unless and until pursuant to a certification by the Board; (c) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), or in any other labor organization of its employees, or encouraging membership in International Union, United Automobile Workers of America (UAW-AFL), in Local 433 thereof, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition from International Union, United Automobile Workers of America (UAW-AFL), and Local 433 thereof, as the collective bargaining representative of any of its 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees at its Saginaw plants, unless and until pursuant to a cer- tification by the Board; (b) Offer John Boyd, Murvin Stoner, Lenore Harris, and Francis Harvey immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges; (c) Make whole John Boyd, Murvin Stoner, Lenore Harris, and Francis Harvey for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period; (d) Post at its plants at Saginaw, Michigan, copies of the notice attached hereto, marked "Appendix A." 14 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS I•URTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (1) of the Act prior to April 1946, be, and it hereby is, dismissed. MEMBERS MURDOCK and GRAY 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, as amended, we hereby notify our employees that : 1. WAVE WILL NOT recognize INTERNATIONAL UNION, UNITED AU- TOMOBILE WORKERS or AMERICA , affiliated with the AMERICAN "In the event that this Oider is enforced by decree of the Circuit Court of Appeals, there shall be inserted in the notice, before the words "A Decision and Order ," the words, "A Decree of the United States Circuit Court of Appeals Enforcing." EATON MANUFACTURING COMPANY 271 FEDERATION OF LABOR, or Local 433 thereof, as the collective bar- gaining representative of any of our employees at our Saginaw plants, unless and until pursuant to a certification by the Board; 2. WE WILL NOT give effect at our Saginaw plants to our con- tract of May 16, 1946, with INTERNATIONAL UNION, UNITED AUTO- MOBILE WORKERS OF AMERICA, affiliated with the AMERICAN FED- ERATION OF LABOR, or Local 433 thereof, or to any extension, re- newal, modification, supplement, or superseding contract, unless and until pursuant to a certification by the Board; 3. 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 the discrimination : John Boyd Lenore Harris Murvin Stoner Francis Harvey 4. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the Act. ALL OUR EMPLOYEES are free to become or remain members of IN- TERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of such labor organization. EATON MANUFACTURING COMPANY, WILCOx-RICH DIVISION, Employer. By -------------------------------------- (Representative ) (Title) Dated ------------------------ NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Max Rotenberg, for the Board. Messrs. Lloyd T. Crane and Benjamin D. Kessel of Crane, Crane & Kessel, of Saginaw, Mich., and Messrs. Francis X. Cull and Richard Inglis, of Hauxhurst, Inglis, Sharp & Cull, of Cleveland, Ohio, for the respondent. Messrs. Maurice Sugar and AT. L Smokier, of Detroit, Mich, for the UAW-CIO. Mr. David Previant, of I'adway cC Goldberg, of Milwaukee, Wis, for the UAW- AFL. STATEMENT OF THE CASE Upon an amended charge duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), herein called the CIO, the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its coin- plaint dated July 16, 1946, against Eaton Manufacturing Company, Wilcox-Rich Division, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, notice of hearing, and the charge were duly served upon the respondent, upon the CIO, and upon International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, and Local 433, International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, herein called the AFL, the AFL having been named in the complaint as a party to a current collective bargaining contract with the respondent. With respect to the unfair labor practices the complaint alleged in substance : 1. That, acting through certain named officers, agents, and supervisory em- ployees at its Saginaw plants, and in furtherance of a continuous course of conduct, extending from 1940 to date, designed to interfere with the exercise of its employees' rights under the Act, the respondent: (a) in January 1940, cautioned and warned its employees to beware of CIO organizational efforts, conferred and counseled with employees on how to resist such efforts, and offered one employee a sum of money to engage an attorney to resist such efforts ; (b) in or about February 1946 offered two named employees more desirable work shifts if said employees would refrain from becoming candidates for AFL offices; (c) in April 1946, threatened and warned employees to refrain from Joining the CIO, and (d) in May 1946, rendered unlawful assistance to the AFL by entering into an invalid collective bargaining agreement with the AFL, which contained certain provisions requiring membership in the AFL as a condition of employment, although it knew at the time that there were pending before the Board a CIO petition for investigation and certification of representatives and CIO charges of unfair labor practices against the respondent and that a question concerning representation had arisen affecting employees in the contract unit. 2. That the respondent on or about May 16, 1946, discharged John R. Boyd, and on or about May 21, 1946, discharged Murvin Stoner, Francis Harvey, and Lenore Harris. and has since refused to reinstate them because they joined and assisted the CIO and because the AFL, asserting that they were not AFL members in good standing, demanded their discharge pursuant to the agreement alleged to have been made during the pendency of a question concerning representation. 3. That the respondent by the aforesaid conduct has engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. EATON MANUFACTURING COMPANY 273 The respondent thereafter filed its answer in which it denied that it engaged in any unfair labor practices . The AFL also filed an answer in which it denied that the execution of the collective bargaining agreement in 1946 constituted an unfair labor practice and that said agreement was invalid ; denied that the employees alleged in the complaint to have been discriminatorily discharged were discharged because they joined or assisted the CIO ; and alleged affirmatively that such discharges were made at the request of the AFL pursuant to a closed- shop provision in a valid collective bargaining agreement after such employees had lost their good standing status in the AFL. Pursuant to notice, a hearing was held from August 6 to 17, 1946, at Saginaw, Michigan , before Arthur Leff, the undersigned Trial Examiner duly designated by the Chief Trial Examiner The Board, the respondent, the CIO, and the AFL were represented by counsel . Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties. During the Board's case, the undersigned granted, over the objection of the respondent 's counsel , a motion by counsel for the Board to amend the complaint by adding as an allegation of interference, restraint, and coercion, that the respondent in December 1940 and January 1941 required its employees to sign written statements agreeing not to engage in concerted activities for their mutual aid and protection . At the close of the Board's case the under- signed denied a motion to strike the said allegation added to the complaint by amendment, made by counsel for the respondent upon the ground that the facts upon which it was based were in the possession of counsel for the Board prior to the issuance of the complaint ; denied with leave to renew at the close of the entire case a motion by counsel for the respondent to dismiss for want of proof the allegations of the complaint relating to unfair labor practices alleged to have occurred in January 1940; granted a motion by counsel for the respondent to dismiss for total lack of proof the allegations of the complaint relating to the respondent's alleged offer in February 1946 to transfer two named employees to more desirable work shifts ; and granted upon the ground that such evidence was outside the issues framed by the pleadings a motion by counsel for the respondent to strike from the record all evidence theretofore received relating to the destruc- tion of a "rider" agreement in 1940 At the close of the hearing, the undersigned took under advisement a motion by counsel for the respondent to dismiss the complaint and each separate allegation thereof for insufficiency of proof The motion is disposed of as hereinafter indicated . Counsel for each of the parties argued orally before the undersigned at the close of the hearing, and the respond- ent and the AFL filed briefs with the undersigned thereafter. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Eaton Manufacturing Company is an Ohio corporation with its principal office and place of business in Cleveland , Ohio. The respondent is engaged in the manu- facture of automotive engine parts and operates manufacturing plants in several States of the United States. At Saginaw, Michigan , the respondent has two plants,' the only plants involved in this proceeding , which it operates together 1 The 2 plants are contiguous to each other and are considered a single operational unit. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with several other plants under the name of Eaton Manufacturing Company, Wilcox-Rich Division. In the year 1945, the respondent purchased for manufac- turing uses in its Saginaw plants goods and materials valued in excess of $1,000,000, approximately TO percent of which was shipped to its Saginaw plants from points outside the State of Michigan. During the same period the respond- ent sold goods and products manufactured at its Saginaw plants having a value in excess of $1,000,000, approximately 60 percent of which was shipped to points outside the State of Michigan The respondent stipulated that it is engaged in commerce within the meaning of the Act. II THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, and Local 433, International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background; the alleged unfair labor practices in 1940 and 1941 The respondent and Local 433, whose jurisdiction is confined to employees of the respondent's Saginaw plants, have enjoyed contractual relations since 1937. At the beginning, Local 433 was affiliated with the UAW-CIO. In early 1939 a division occurred in the UAW-CIO and Local 433 joined the group of locals which eventually became the UAW-AFL. It has remained in the AFL ever since. In late 1940, the CIO made an effort to regain representative status at the respondent's Saginaw plants. In October 1940, it filed a petition for investiga- tion and certification of representatives which, on January 16, 1941, was dis- missed by the Board upon the ground that the then existing AFL contract for a term expiring in 1942 constituted a bar to a determination of representatives. The contest over representation at that time was accompanied by considerable enmity. A leader of the CIO group was discharged at the request of the AFL allegedly for cause, and this, coupled with the CIO claim for recognition, led to a strike of CIO supporters which was marked by violence and rioting. The strike lasted from November 1940 to the latter part of January 1941 when it was finally terminated with the aid of conciliators by what the CIO contends was an agreement on the part of the respondent to accept the return of all striking employees i Not all the striking employees were accepted for employment, however, and those who were accepted were reinstated on a conditional basis At the con- clusion of the strike, the respondent agreed with the AFL to permit the latter to screen the striking employees and to accept for return only those who were approved by the AFL. About 85 of the approximately 300 striking employees were not returned to work. Those who were returned were required to sign affidavits setting forth their reasons for not reporting to work during the strike period, as well as forms certifying that they had quit their employment without z See Matter of Eaton Mannfactnring Company, 29 N L. R B 53. ' Whether or not such an agreement was in fact made is not deemed an issue in this proceeding and is not here decided EATON MANUFACTURING COMPANY. 275 good cause. These employees were required to return as new employees for- feiting all accumulated seniority. The deprivation of the seniority rights of the striking employees has remained fresh in the memory of employees and a sore spot in the plant ever since. There is no allegation in the complaint that there was any discrimination by the respondent with regard to the hire, tenure, or terms or conditions of employ- ment of employees in the 1940-1941 period; nor was this subject litigated except for background purposes Although the complaint contains general allegations of interference from 1940 to date, the particulars alleged did not include any of the incidents above adverted to, and the undersigned did not permit them to be litigated as unfair labor practices. The complaint, however, does con- tain two specific allegations of interference, restraint and coercion flowing from the 1940-1941 events. The first specific allegation sets forth : In or about January, 1940,° Richards, respondent's labor relations director, whose first name at present is to the Board unknown, cautioned and warned respondent's employees to beware of CIO organizational efforts among re- spondent's employees, conferred and counseled with respondent' s employees to resist CIO organizational efforts among said employees and offered one of the respondent's employees a sum of money to engage an attorney to resist CIO organizational efforts among said employees. Tire only evidence adduced by counsel for the Board in support of this allegation was in the form of testimony by John R. Boyd who at the time of these alleged incidents was vice president of the AFL but who at the time of the hearing was a member of the CIO and one of the persons alleged in the complaint to have been discriminatorily discharged in May 1946. It was Boyd's testimony, in sub- stance, that during the course of the 1940-1941 strike, Labor Relations Director Richards suggested to the AFL bargaining committee that the latter institute injunction proceedings to restrain CIO picketing; that after the AFL had com- menced such proceedings, Richards suggested that the AFL discharge its attor- ney and retain another lawyer recommended by Richards, at the same time offering Boyd $300 for that purpose; and that the AFL thereupon did retain the lawyer suggested by Richards although it refused to accept the proffered $300. Richards was deceased at the time of the hearing. But Plant Manager Herbert Russell, Personnel Director J'ohn Russell, and AFL Representative Ira Luplow, who, according to Boyd, were present at the time of his alleged conver- sations with Richards, all categorically denied that Richards had made the sug- gestions and statements attributed to him. The court records in the injunction proceedings disclose that at no time during their pendency was there any sub- stitution of attorneys for the AFL. Boyd's testimony, generally, concerning the events of this period was confused , garbled, and contradictory, and impressed the undersigned as unreliable. It is not credited. The undersigned finds that the record does not substantiate a finding of interference, restraint, and coercion on the basis of the allegation of the complaint quoted above, and consequently will recommend that that allegation be dismissed. The other specific allegation, added by amendment during the course of the hearing, sets forth : 'It is obvious from the testimony adduced in support of this allegation that the date intended to be pleaded was "January 1941 " rather than "January 1940," and that the reference to the 1940 date was an inadvertent error. It is also clear from the record that the respondent was not misled by this error. 781902-48-vol. 76-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In December 1940 and January 1941, respondent's employment officers and agents required employees to sign written statements agreeing not to engage in concerted activities for their mutual aid and protection. In support of this allegation, counsel for the Board called some five witnesses, all of whom had been strikers during the 1940-1941 labor disturbance Each of these witnesses testified that upon his return to work at the termination of the strike he was required to sign, in addition to an affidavit explaining the reason for his absence from the plant during the strike and it form acknowledging that lie had quit his employment, a pledge card. As to the contents of that pledge, there was some disparity in the testimony of the witnesses, several of whom candidly admitted to but an imperfect and vague recollection on the subject. Thus, one witness (Charles Knapp) testified that the pledge card "stated that you could not participate in any strike or slow-up in production or cause any disturbance among your fellow employees or you would be fired." Another (Fran- cis Harvey) could recall the substance "not exactly, but it had to do with sign- ing away my seniority and not having to do with any more labor trouble in the plant." A third (Edward Poquette), who freely admitted to a hazy memory on the point, believed that "there was some things in there that I was to go back to work and not to cause any friction or trouble much among the employees." A fourth (James Simmons) interpreted the pledge to read, "If I was a patty to any trouble at all, that I would be subject to discharge." The fifth (Martin Wilson) testified that be "signed a card saying I would not take part in any strike against the Company." Witnesses for the respondent unequivocally denied that the respondent either at the time of the strike or at any time, had ever exacted from any employees any written pledges or that it ever had in its possession pledge forms of the general nature described by the Board witnesses. It was admitted, however, that at the time the strikers were returned to their employment they were orally cautioned "not to become involved in any arguments, quarrels or wandering around in the plant." While the Board's witnesses who testified on this aspect of the case did not impress the undersigned as untruthful, neither did John Russell, the respondent's principal witness on this phase of the case. But the attendant circumstances were such as to create a greater possibility of honest error on the part of the employee witnesses. When the striking employees were returned to work they were required to sign a number of papers, including one which had the effect of depriving them of their seniority. One of these forms in physical appearance bore a resemblance to the "yellow pledge card" referred to by the Board witnesses in their testimony. At the same time they were read a lecture not to engage in any strife or trouble in the plant, a matter readily susceptible of connection in their minds to their strike activities and to their forfeiture of seniority. It is not unreasonable to believe that over the span of more than 5 years, the various events have been so blended and confused in the witnesses' minds as to have led them to believe that they entered into written undertaking not to engage in conduct of the character described by them. However that may be, the vague and somewhat conflicting description of the Board witnesses as to the contents of the "pledge" affords insufficient basis for a specific finding that the employees agreed in writing not to engage in legitimate "concerted activities for their mutual aid and protection." Upon the entire record, the undersigned is not persuaded that counsel for the Board has satisfied the burden of the proof on the allegation of the complaint here under consideration, and will consequently recommend that this allegation likewise be dismissed. EATON MANUFACTURING COMPANY 277 Although the complaint alleges generally that the respondent from January 1940 to date "engaged in a continuous course of interference, restraint and coercion of its employees in the exercise of their rights" under the Act, no effort was made to establish the commission of any other unfair labor practices on the part of the respondent during the period intervening between the conclu- sion of the 1940-1941 strike and the events of April and May 1946. B. The events of _lpi it and May 1946 1. Introduction After the Board's dismissal of the CIO petition for certification in January 1941, the status of the AFL as the exclusive bargaining agent of the respondent's production and maintenance employees at its Saginaw plants remained un- challenged until April 1946.° During the intervening period, the respondent and the AFL continued to deal with each other under a series of agreements each for a 2-year term. These agreements took the form of (a) a master agreement between the respondent and the AFL International (also signed by the interested AFL locals), covering the production and maintenance employees at the respondent's plants at Saginaw, Michigan ; Massillon, Ohio ; and Vassar, Michigan, where AFL locals were the recognized bargaining representatives, and (b) supplementary agreements cover- ing the respective plants within the jurisdiction of the respective AFL locals. The master agreement which was effective from May 16, 1944, to May 15, 1946, contained the following provisions relating to membership in the Ali'L: All employees covered by this agreement who are or may become members of the Union shall remain members of the Union in good standing for the duration of the agreement. Probationary employees must become members of the Union at the expiration of their plant probationary period. The 1944-1946 contract contained no provision for any automatic renewal be- yond its stipulated term. On April 6, 1946, the CIO, claiming a majority in the production and main- tenance employees bargaining unit at the respondent's Saginaw plant, demanded bargaining rights. At the same time it served notice on the respondent that it would regard any continued recognition or dealing with the AFL after the expiration of the then current contract as a violation of the Act. On April 8, 1946, the CIO filed with the Board a formal petition for certification of repre- sentatives pursuant to Section 9 (c) of the Act. Notice of the filing of the petition was served on the respondent the following clay The representation proceeding instituted by this petition is still pending undetermined before the Board. 2. The CIO organizational campaign ; counter-activities Although some CIO organizational work had been going on for some time prior thereto, the CIO membership campaign was first launched openly at a meeting at the home of employee Charles Knapp held on Apt ii 7, 1946. The meeting at Charles Knapp's home, according to AFL Regional Director Ira Luplow, was an outstanding event in the plant and caused "a lot of stir-up 5In April 1942, prior to the expiration of the 1941-1942 agreements, the CIO wrote the respondent requesting recognition, but failed to follow up its request with a petition for investigation. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and excitement" among plant employees. It also led to prompt counteractivity on the part of AFL officials, counteractivity which placed considerable emphasis upon the provisions of the contract requiring AFL membership in good standing as a condition to continued employment. A number of witnesses, not interested as complainants in this case, credibly testified in substance, and it is found, that shortly following the meeting at Knapp's home, they were summoned to the office which the AFL was permitted to maintain on plant premises; that they were then interrogated by AFL officials, in general, concerning CIO activities, and, in particular, concerning persons in attendance at the Knapp meeting; that they were warned that their continued designation of the CIO would lead to the loss of their jobs; and that they were requested to and did sign forms revoking their prior designation of the CIO s The record shows that in some instances on the occasions under consideration the employees were requested by foremen to go into the AFL plant office, and that, during working hours, they were permitted to remain in the AFL office for substantial periods of time. There is no evidence, however, that any of the respondent's supervisory employees had knowledge of the pur- pose for which the employees were summoned to the AFL office. The record discloses that it was a common practice for AFL committeemen to require employees during working time to call at the AFL office, and that requests for their appearance would often be made through the foremen. There is no con- tention by counsel for the Board that the threats made by the AFL repre- sentatives are to be attributed to the respondent as an unfair labor practice; nor, indeed, would the record support such a contention The facts concerning such threats are set forth here solely because of their bearing upon the issue of the AFL's underlying reason for the expulsion from membership of the four employees named in the complaint as having been discriminatorily dis- charged, a matter which will more fully be considered in a later section of this report. As to evidence of direct participation by the respondent's supervisory personnel in threatening statements directed against CIO adherents, the record makes reference to but a single incident, an incident which also occurred shortly after the meeting at Knapp's home. Charles Knapp testified that on April 11 or 12, 1946, at a cigar store frequented by the respondent's employees and located about one-half mile from the plant, Third Shift Superintendent George Levi, addressing a small group of employees who were informally gathered there, including Knapp, Edward Poquette, and two others, one of whom was Levi's brother, stated (with regard to CIO activities) : 6 Among the witnesses who so testified were James Simmons, Martin Wilson, Walter Riedel, and Herbert Cramton. The AFL officials involved, all members of the AFL bargaining committee, were Howard Maturen, the president of the Local ; Joseph Minns, the Local secretary, and Alvin Luplow. The AFL officials admitted that they called employees into the AFL plant office and questioned employees concerning CIO activities and the Knapp meeting, and that in some instances they spoke to the employees about the seniority which they had lost at the end of the 1940-1941 strike, but they denied that they had threatened any employees with expulsion from the AFL or discharge from their jobs if the employees persisted in their support of the CIO The testimony of the Board witnesses on this point was marked by convincing clarity of detail and in substantially all respects, other than their references to the threatening statements, was conceded to be accurate. The over-all testimony of the AFL witnesses, on the other hand, marked by a lack of candor, was not such as to invite credence ; they appeared more concerned with protecting the theory of the AFL case than in adhering to accuracy in their testimony. Upon the entire record, and from his observation of the witnesses, the undersigned accordingly rejects the partial denial of the AFL witnesses on this point. EATON MANUFACTURING COMPANY 279 You guys do not want to stick your neck out or have any part in what is going on there or the same thing will happen this time as last time and someone will lose their jobs. You know what happened last time. The same thing will happen this time. Knapp's testimony in this respect was substantially corroborated by Poquette. George Levi admitted having a conversation on the subject of unions with em- ployees at the cigar store on the occasion in question. He testified, however, that he could not "recall" making the statement attributed to him by Knapp, and therefore "must deny it " Levi's testimony in other respects was clearly evasive and his denial, which, at most, impressed the undersigned as being based not on memory but on the want of it, lacked the quality of conviction. Upon the basis of all the evidence and from his observation of the witnesses, the undersigned credits the corroborated testimony of Knapp,' and finds that Levi made the remarks substantially as attributed to him by Knapp. On April 12, 1946, CIO Regional Director Kenneth Forbes forwarded to the respondent's plant manager, Herbert Russell, a copy of an open letter which he had addressed to the respondent's employees, a letter which thereafter on April 14 was published by the CIO as an advertisement in the Saginaw Nelcs. The letter stated : Recently we learned that certain officials of the UAW-AFL have indicated that any one who signifies preference for the UAW-CIO, or who signs a card, would be discharged. Any such action may be disregarded, since the law states that an employee of a closed shop may not be discharged because of activities on behalf of a rival Union prior to a National Labor Relations Board election. The letter then went on to cite and quote from certain Board and Court precedents on the proposition asserted.' It concluded with an assurance that "the UAW- CIO will give complete protection and support to all its friends and members." On April 17, 1946, the CIO filed with the Board its original charge in this proceeding " The charge alleged a violation of Section 8 (1) of the Act in that agents and representatives of the respondent had threatened to discharge em- ployees for supporting the CIO, and further alleged that the respondent had called certain of its employees to the "front office" to discourage them by coercion and threats from supporting the CIO Minsel, the respondent's industrial relations manager, testified that in early May 1946, he inquired of the Board' s Regional Director when an election could be held and that lie was informed that until some disposition was made of the unfair labor practice charge there "could not" or "would not" be an election. 3. AFL efforts , prior to the execution of the new master agreement, effective May 16, 1946 , to secure the discharge of certain CIO supporters Among the more active supporters of the CIO in its organizational campaign were John Boyd, Charles Knapp, Murvin Stoner, Francis Harvey, and Lenore 7 The other employees who were present at the cigar store were not called as witnesses. 8 The cases cited were Matter of Rutland Court Owners, Inc, 44 N L. R B 587, Wallace Cot pot anon v. N. L. R. B , 323 U. S 248 , and Matter of Portland Lumber Mills , 64 N. L. R B. 159. "the responder t was notified I y the Board of the filing of the charge on the same day. The charge v,as subsequently amended to allege additional unfair labor practices following the discharge of John Boyd on May 16 , 1946, again following the discharges of Murvin Stoner, Francis Harvey, and Lenore Harris on May 21, 1946, and still again shortly prior to the issuance of the notice of hearing. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harris.l0 All but Harvey had theretofore, at one time or another, served as AFL officials, although none was engaged in such capacity at the time of the 1946 CIO campaign in April and May." Boyd vas the leader among employees in the CIO movement; he had been engaged in CIO activities for some months prior to April 1946, but did not openly reveal his CIO interests until the meeting at Knapp's home. Knapp, Stoner (described in the record as a "buddy" of Boyd), Harris, and Harvey were all particularly active during the CIO campaign in soliciting designation cards for the CIO. Each of the employees named was an enrolled member of the AFL. So far as the record discloses, none was delinquent in the payment of AFL dues. The CIO activities of Boyd, Knapp. Stoner, Harris, and Harvey were admittedly known to the AFL officials at the times mentioned below. Although the respond- ent, except in the case of Boyd, did not concede that it had like knowledge, it is clear from all the facts wwhich'will be narrated below, and it is found, that the respondent prior to the discharges of Boyd, Stouei, Harris, and Harvey was also on notice of their interest in the CIO. Reference has already been made to the fact that a number of employees, not complainants in this case, were warned by the AFL officials that their continued support of the CIO might lead to loss of their jobs The record also shows that in the case of two complainants, Stoner and Harris, who did lose their jobs, such action was foreshadowed by similar warnings specifically directed to them. Thus, Stoner testified credibly, and it is found, that in April 1946, several days before the commencement of his injunction proceeding referred to below, he was informed by Marty Symons, ,in elected official of the AFL, that the bai gaining committee would request the respondent to discharge him because of his CIO activities" Stoner further testified, and it is found, that during the injunction proceedings later in April, AFL Regional Director Ira Luplow informed him that if he persisted in sending nien to the CIO, the AFL would have to fire him 13 Harris 10 Boyd, except for a peuod of 3 years from September 1942 to September 1945, when he was in the United States Navy, had been employed by the respondent continuously for 14 years Stoner had been employed for 6 years ; Harris for 5 years ; and Harvey for 13 years. n Boyd, before lie entered the Navy, had served as vice president and later as president of the AFL Upon his return from the services, he acted for it time as an AFL commit- teeman, but apparently did not hold any official position after the February 1946 AFL elec- tions at which he was defeated as a candidate for president Knapp and Stoner had served as stewards until Dfaich 1946, Harris had been chief stewardess for about 2 years prior to the February 1946 elections Boyd, Knapp, Stoner, and Harvey had been unsuccessful candidates for election to the AFL bargaining committee in the February elections 13 Symons denied making this statement, and testified that on the occasion in question lie merely told Stoner, "You will be all done" because the bargaining committee had accused Stoner of stealing a seniority list which, the record elsewhere discloses, the AFL believed the CIO was using for organizational purposes At one point elsewhere in his testimony Symons testified that lie first learned Stoner was engaged in CIO activities about a week after Boyd was discharged, although the record shows that Stoner's CIO activities were known not only to AFL officials but to the entire plant long before then Symons impressed the undersigned as a witness who was trying to "cover up" for the AFL, and his denial is not credited. 13 Luplow denied that lie ever told Stoner he would be discharged But when first ques- tioned as to whether he had ester told Stoner lie would be "expelled" for engaging in CIO activities, Luplow admitted that he had His answer was, "Probably I told him that every time I met him " Later, under leading questions of AFL counsel, Luplow altered his testimony and stated that he had meant "disruptive activities" rather than "CIO activities " "I probably answered [the question] too quickly," was his only explanation for changing his earlier testimony. To the extent that Luplow s testimony may be viewed as a denial of Stoners, Luplow's testimony is not credited. EATON MANUFACTURING COMPANY 281 testified credibly and without contradiction, and it is found, that several weeks prior to her discharge AFL Committeeman Alvin Luplow, while commenting with respect to her CIO activities, asked her if she cared whether she lost her job and stated that he hoped she knew what she was doing. The efforts of the AFL bargaining committee to expel and bring about the discharge of CIO leaders were begun on April 9, 1946, the day following the CIO meeting at Knapp's home, and were first directed against Knapp and Boyd. On the date mentioned three members of the AFL bargaining committee preferred the following charges against Boyd and Knapp: A. Violation of the oath of loyalty to the Local and the International. B. Gross display of conduct unbecoming a member. C. Fostering a secession. D. Abuse of fellow members by oral communication. F. Activities that tend to bring the Local and International into disrepute. At the next regular meeting of the AFL Local, held on April 13, 1946, these charges were read to the membership, accompanied by an announcement that Boyd and Knapp had been suspended from AFL membership. However, a motion was made from the floor, and carried, that Boyd and Knapp be permitted to work until the charges were heard by an AFL Trial Board. A Trial Board was then elected by the membership to consider the matter on April 24, 1946 Despite the decision of the AFL membership not to suspend Boyd and Knapp until after a hearing on the charges, the AFL bargaining committee nevertheless proceeded to take prompt action to bring about their removal from employ- inent. "We thought," explained President Howard Maturen at the hearing, "that the Trial Board would take too much time and they thought they could not wait until these people were taken care of." On April 17, 1946, the AFL bargaining committee submitted a grievance to the plant inanagenient requesting the immediate removal from the pay roll of Boyd and Knapp, "the suspension to last until a decision has been rendered by the Tiial Board which meets April 24, 1946" on the ground that Boyd and Knapp were not in good standing in the AFL On the same day, the AFL bargaining committee also filed with the plant management a "grievance" against Stoner, who, the record discloses, was, next to Boy d, the foremost leader of CIO adherents among plant employees. The giievance against Stoner read: We the Bargaining Committee request of Management immediate action on the removal of Murvin Stoner from the plant on the following charges. Intimidation of fellow employees, participating in theft of company prop- erty and causing dissension and unrest among fellow employees during working hours. In the case of Stoner no claim was made in the "grievance" that he was not in good standing in the AFL Nor did the AFL in his case as in Boyd's case invoke the "closed shop" provisions of the master agreement as a reason for his expulsion. In form, the "grievance" against Stoner related to alleged derelic- tions on his part as a plant employee and not as a union member. It was the respondent's usual practice when a grievance was filed against an employer to afford the employee an opportunity to be heard, but this procedure was not followed in this instance. Plant Manager -Russell testified that the AFL bar- gaining committee, when he inquired of them concerning the facts of the grievance, asserted that the "grievance" was a "union" matter and declined 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to tell him anything beyond revealing that the company property allegedly stolen was not in fact company property but a union seniority list. The Com- mittee, according to Russell, declined to amplify its written claims concerning "intimidation of fellow employees" and "causing dissension and unrest," and Russell did not question the Committee on that point Nor did Russell on the Boyd grievance question the Committee for details on such items as, for example, "Fostering a secession." He was satisfied to let the matter rest on the Com- mittee's statement that it was "union business " But Russell, admittedly mindful of the fact that the then current contract was about to expire, did not honor the AFL requests at that time. Instead, he contacted Paul Morsel, the respondent's personnel director, whose headquarters were in Cleveland, and arranged to have him meet with the bargaining committee on April 18. At that meeting the bargaining committee reiterated its demand for the immediate removal of Boyd, Knapp and Stoner. The Committee, accord- ing to Morsel, refused to give him any supporting reasons for the demand, stating merely that it was a "union" matter. At this meeting, Minsel's-testimony reveals, "There was a discussion about certain rulings of the National Labor Relations Board" relating to the discharge of employees near the close of a contract term. Minsel informed the Committee that if they wanted immediate action on their request, the answer was "No." The following morning, April 19, found Minsel at the office of the respondent's attorney making an examination of Board and Court cases relating to an em- ployer's liability for discharging under a closed-shop contract employees because of their affiliation with a rival union. On the same morning there were served upon the respondent a complaint and papers, including a temporary restraining order, in an injunction proceeding instituted by Boyd and Knapp against the respondent and the AFL to enjoin the AFL from proceeding with its expulsion proceedings and the respondent from discharging them, The complaint alleged that the expulsion procedure being followed by the AFL was illegal under the AFL Constitution, and, additionally in the case of Boyd, a recently discharged service man, that his discharge would be violative of his rights under the Selective Service Act No mention was made in the injunction complaint of the plaintiffs' CIO activities. The complaint had ap- pended to it a copy of the expulsion charges preferred against Boyd and Knapp by the AFL bargaining committee as set out in full above On April 20, a similar injunction proceeding with a like temporary restraining order was instituted by Stoner. While these injunction proceedings were awaiting Court hearing, the AFL bargaining committee, on April 23, filed with the plant management a "grievance" against Lenore Harris. The "grievance," in form similar to that filed against Stoner, requested Harris' removal from the plant for "misconduct, insubordina- tion, and uttering threats in the plant." Here too, the AFL, asserting that it was a "union" matter, declined, although requested by management, to amplify its reasons for requesting the discharge of Harris. And the respondent was satisfied to let the matter rest there, neither pursuing it further with the AFL nor making inquiry of Harris. No action was taken by the respondent with respect to Harris at that time. For the respondent, as appears from Herbert Russell's testimony, regarded the request to discharge Harris (and also the subsequent request to dis- charge Harvey) as "tied into one" with the like requests concerning Boyd, Knapp, and Stoner, action on which was then stayed by the injunction proceeding. EATON MANUFACTURING COMPANY 283 The respondent on April 25, 1946, in a letter to the Board's Regional Director, directed his attention to the pending injunction proceedings ; stated, "If this injunction is lifted at the time of the hearing, our Company might find itself confronted with the problem as to whether or not it should suspend the three em- ployees as requested by the respondents Bargaining Agent, Local 433, A. F. L."; added that the respondent's attitude was one of impartiality; referred specifically to certain Board and Court authorities which, it said, "seem to indicate that de- spite the provisions of the present; Closed Shop Agreement the Company could be charged with an unfair labor practice in the event that it should accede to the request of the Union," and closed by requesting a statement of the Board's atti- tude on that subject. There is no evidence in the record indicating whether the Regional Director ever replied directly to this letter" The injunction proceedings and subsequent developments narrated below in connection with the AFL efforts to have the complainants herein discharged were closely followed by the local press and were given prominent publicity. In a number of articles published between April 24 and May 21, the Saginaw News reported that the AFL's efforts to expel and discharge these employees stemmed from the jurisdictional dispute arising out of the CIO's attempt to obtain recognition and were based upon AFL alleged "disloyalty" of the employees be- cause of their aid to the CIO organizational campaign At tunes the articles made reference to statements to that effect attributed to AFL officers. These Saginaw News articles were admittedly read by the respondent's management officials.15 One of the articles, appearing in the issue of the Saginaw News dated April 22. 1946, reported in substance that AFL President Maturen had stated that officials of the AFL intended to add the name of Stoner to that of Boyd and Knapp as an employee to be cited by the AFL for disloyalty in aiding the CIO. Edward Miller, labor reporter for the Saginaw News and the author of this article, testified credibly, and it is found, that that article accurately reported a state- ment made to him by Maturen about that time 10 In the injunction proceedings, the Chancery Court on April 30, following a preliminary hearing, vacated the temporary restraining orders against the re- spondent and modified the temporary restraining orders against the AFL by pro- viding that the AFL should not interfere with the status of the plaintiffs as members of its organization "except in accordance with the provisions of the con- stitution of the International Union UAW-AFL." Certain other incidents in the chronology of events leading to the ultimate discharge of Boyd, Stoner, Harris, and Harvey occurred during the terms of the 11 There is in evidence, however, a letter dated April 26 , 1 946, written by the Board's Field Examiner to counsel for the respondent stating that he would be in Saginaw on May 1 and would then call on the respondent's counsel. 16 These articles were received in evidence , and are to be considered here, except where the content of any such article is supported specifically by the testimony of its author, for the restricted purpose of showing the publicity given to the "jurisdictional dispute" and the reported positions of the parties thereto , and not as proof of the truth of the statements contained therein. 10 Maturen denied making such a statement to Miller and assert that on this and other occasions he complained to Miller about the inaccuracy of his articles , an assertion which Miller vigorously denied . Miller 's attitude and demeanor on the witness stand impressed the undersigned as that of a completely credible witness Maturen , whose testimony in other respects has been found not credible , did not similarly impress the undersigned. Maturen's denial as well as his testimony concerning his complaints to Miller and the Saginaw News are not credited. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract which expired on May 15, 1946. But since these are more closely bound up with the discharges which occurred under the new contract. their con- sideration, in the interests of orderly arrangement, will be deferred until after the facts relating to the new contract are examined. 4. The execution of the contract, effective May 16, 1946 On May 13, 1946, representatives of the respondent and the AFL negotiated a new master agreement covering all plants of the respondent represented by the UAW-AFL The new contract provided, inter alia, for exclusive recognition of the AFL for an additional 2-yejtr period beginning May 16, 1946. In sub- stantive content, the new contract was substantially the same as the old and contained a union security agreement identical in form to the one in the contract it superseded. Cognizance was taken, however, of the question concerning representation which had arisen and the unfair labor practice charge which had been' filed af- fecting the Saginaw plants . In conjunction with the new master agreement a written stipulation dated May 12, 1946, was drawn. It stated that the master agreement was renewed with the understanding: That Local Union No 433, Saginaw, Michigan, has been made and shall continue to be, a party to the Master Agreement, contingent upon the out- come of two cases now pending before the National Labor Relations Board (Cases No 7-R-2264 and 7-C-1568) and upon Local 433 maintaining the right to represent exclusively the majority of the employees in the appro- priate bargaining unit at the Saginaw Plant. The Master Agreement and the stipulation were signed by the respondent's rep- resentatives on May 14. They were then forwarded to the AFL for signature by the International and local officers The instruments were not completely signed on behalf of all the AFL locals involved and returned to the respondent until sometime in June. Nor was the new agreement ratified by the Saginaw AFL local until June Counsel for the Board and the CIO contended at the hearing that because of these circumstances the contract could not be deemed to have been operative and effective during the interim period in the latter half of May when the discharges of Boyd, Stoner, Harris, and Harvey occurs ed. The undersigned finds no merit in this contention. There is uncontradicted testimony that the agreement and the stipulation were actually signed by AFL Interna- tional and Local 433 representatives on May 15 That it was not ratified until subsequently and that the AFL representatives may not have observed the AFL bylaws in signing the agreement prior to ratification is an internal union mat- ter not deemed material to the issues of this proceeding. Assuming that the agreement were otherwise valid (a point reserved for discussion and determi- nation below), the respondent's obligation thereunder became fixed at the time of its signing." In any event, it is clear from the record as a whole that irre- spective of any delays in ratification or delivery of the completely executed mas- ter agreement it was the intent of the parties that it was to become effective as of May 16, 194618 17 The agreement was one between the respondent and the International on behalf of its locals It provided that it was to "become effective between each individual plant and each Local Union immediately upon the signing of this Master Agreement." is One further contention , not strenuously urged, of counsel for the Board , may be disposed of at this point. At oral argument before the undersigned , Board counsel argued, among other things , that the stipulation should be interpreted as withholding coverage of the EATON MANUFACTURING COMPANY 285 It was admitted at the hearing that the respondent knew, at the time it nego- tiated and signed the new master agreement, that the AFL would continue to press for the discharge of the employees named as complainants in this proceeding. 5 The expulsion from the AFL and the discharge by the respondent of Boyd, Stoner, Harris, and Harvey With the modification of the temporary restraining Court Order, the AFL pro- ceeded to bring to hearing the charges filed against Boyd and Knapp by mem- hers of the AFL bargaining committee. A hearing before the AFL Trial Com- mittee was held on May S, 1946, at which Boyd and Knapp were present but from which their counsel was excluded. As noted above, five charges had orig- inally been preferred against Boyd and Knapp, including the charge "Foster- ing a secession." But the only charge pressed and tried at the hearing was "Abuse of fellow members or officers by written or oral communication " On that charge Boyd was found guilty by the Trial Committee and was suspended from the AFL for a term of 99 years. Knapp, on the other hand, was found not guilty. There was introduced into evidence by counsel for the AFL the written sub- stantiation prepared by members of the AFL bargaining committee and filed at the trial in support of the charges, as well as minutes, in the form of a sketchy resume prepared by the Trial Committee's secretary, of the proceedings there had. The undersigned is not concerned in this proceeding with testing the validity of the expulsion or the sufficiency of the evidence submitted in support of the charges. He will not therefore comment on these aspects of the AFL expulsion proceeding The undersigned is concerned with, however, and regards as one of the basic issues of this proceeding the question as to whether the AFL bargaining committee (with the knowledge of the respondent) was in fact motivated to expel Boyd, and to bring about his discharge after it learned in April of his outstanding CIO activity, and for that reason. The nature of the complaints made against Boyd in support of the charge bear significantly upon that question The trial minutes reveal that the complaint principally stressed against Boyd at the AFL trial was that Boyd in January 1946 (2 months before the charges were filed) had entered the plant drunk, had abused Dorothy Snellinberger, a stewardess, and had thereby incurred a 30-day suspension by the respondent Its significance lies in the fact, shown by the record in this case, that the AFL had earlier acted on behalf of Boyd in a grievance filed against the respondent protesting that very suspension and had unsuccessfully carried that grievance through to the final stages of the grievance procedure The other complaints made against Boyd, such as accusations that he had made false and disrespectful state- ments against the bargaining committee and had sought to cause "dissatisfaction and discontent" among employees, where specifically identified, almost in each instance related to incidents claimed to have occurred months before the expul- sion charges were filed The AFL offered no explanation as to why, under such circumstances, the filing of the charges was delayed until the day following the meeting at Knapp's house when Boyd's interest and leadership in the CIO was first brought out into the open. niabter agreement until after final disposition of two Board proceedings therein referred to This contention is found to lack merit At most, the "contingent" provision of the stipulation is ambiguous in that respect That ambiguity is resolved by oral testimony in the record which makes it clear that the intent of the parties was to make the master agreement immediately applicable to the Saginaw Plant subject only to pcssible defeasance conditioned upon the outcome of the Board proceedings 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 11, the respondent received two communications concerning Boyd. The first was a "grievance" filed by the AFL bargaining committee, stating that the AFL membership had voted to uphold the decision of the Trial Committtee on Boyd, that Boyd was no longer an AFL member in good standing, and that his immediate discharge was requested. The second, directed through the respond- ent's attorney, was a letter written by Boyd's attorney, directing the respondent's attention to the danger of discharging Boyd for "dual unionism." The respondent did not honor the AFL discharge request at that time. And there the matter rested until after the expiration of the term of the then current Master Agreement. As already noted, the new Master Agreement became effective on May 16, 1946. Several other developments occurred on that day. They are here set forth approximately in the order of their occurrence. CIO Regional Director Forbes, having reason to believe that the respondent .night move to discharge Boyd on that day, telephoned Plant Manager Herbert Russell at Saginaw, mentioned that Boyd, Knapp, and Stoner were CIO "sym- pathizers and members," advised him that the CIO "had a considerable bloc of people in the plant" and warned him that there might be "trouble" if Russell `'lent himself to supporting the AFL " At about the same time, in Cleveland, CIO Representative Reisinger telephoned Industrial Relations Manager Minsel, informed him that he understood Boyd might be discharged that day, and cau- tioned him that any discharge of CIO members at Saginaw might lead to labor disturbances at CIO-organized plants of the respondent in other cities 19 At the instigation of AFL officials, a work stoppage in the form of a sit-down strike occurred in the plant, and lasted for about 2 hours. During the stoppage, the AFL bargaining committee notified the respondent that the employees were refus- ing to work with Boyd, Stoner, Harris, and Harvey, and demanded their imme- diate discharge, In the case of Boyd the demand was in writing and was ac- companied by a letter from the International which detailed the various proce- dures taken by the AFL leading to Boyd's expulsion, and stated that the AFL had now "fully complied with the terms and provisions of the Court Order" entered in the Chancery Court The respondent submitted to the AFL demand as to Boyd, removed him from the pay roll, and handed him a notice stating that he was discharged for not remaining a member in good standing of the AFL in accordance with the terms of the master agreement. But as to Stoner, Harvey, and Harris, none of whom had yet been suspended or expelled from the AFL, the respondent declined to take like action unless and until evidence was first submitted to it that the AFL constitutional requirements relating to their loss of good standing status had been complied with.20 The omission of the AFL bargaining committee to have Stoner, Harris, and Harvey deprived of good standing status before demanding their discharge was one which the bargaining committee found a ready means to correct. The AFL Constitution contains a provision, described therein as "an emergency power, to be used sparingly," pursuant to which the International president is empowered "to summarily expel or suspend membeis . . . of subordinate organizations .. . for such . . causes which are deemed sufficient by him to require prompt and immediate action on his part." On May 16, Maturen, president of Local 433, zB It is not altogether clear from the record whether these conversations occurred before or during the stoppage of work It was conceded by the respondent, however, that they occurred before Boyd's discharge was effected that day. $0 Up to this point, the exhibits disclose, the only ground upon which the AFL had sought the discharge of Stoner and Harris was that they were derelict in their duties as employees, not as union members. EATON MANUFACTURING COMPANY 287 after first conferring with AFL Regional Director Luplow, invoked this provision. Maturen wired International President Lester Washburn and requested the im- mediate suspension from AFL membership of Stoner, Harris, and Harvey, alleg- ing that they were guilty of the following charges : 21 1. Violation of oath of obligation to Local 433 , UAW-AFL, and the Inter- national Union, UAW-AFL. 2. Gross display of conduct unbecoming a Union member , namely : foster- ing secession from the International Union and Local Union 433, UAW-AFL, abuse of fellow members and officers. 3. Committing acts which tended to bring Local 433 and the International Union, UAW-AFL, and its officers into disrepute. 4. Causing unrest and dissension among fellow employees by various state- ments and slander. 5. Provoking and inciting work stoppages. 6. Attempting to disrupt Local Union meeting of Local 433, UAW-AFL. Prompt action followed this request . On May 17, Washburn wired Luplow , asking Luplow to contact the officers of Local 433 , investigate the suspension request, and advise him as to the advisability and necessity of such action . Two and a half hours later Luplow replied, stating that he had contacted Maturen and that he recommended the expulsion "in the interest and welfare of his local union and the International Union." 12 On May 20, 1946, the AFL bargaining committee notified the respondent that "the correct procedure of the [AFL] constitution has been followed " and that 21 The language of the charges as set torth heiein is taken lerbatinr fiom the notices of expulsion subsequently sent to Stoner, Harris, and Harvey, copies of which were trans- mitted to the respondent prior to their discharge . 'The language in the telegram was sub- stantially the same but in somewhat abbreviated form. 22 Luplow s "investigation ," according to his testimony , consisted of receiving from Maturen statements in writing, theretofore prepared by Maturen , outlining the complaint against the employees These statements were not, however , transmitted to Washburn who acted solely on the general recommendation of Luplow. The statement as to Stoner alleged that Stoner had circulated "vicious" and "false" rumors concerning the bargaining committee 's negotiations with the respondent ; that lie had "bothered" fellow employees during working hours by making "slanderous" remarks and Insinuations concerning the AFL and its officers ; that he had made statements that the bargaining committee were "company stooges" ; that he had stolen a seniority book from the AFL office , that lie had threatened fellow employees with "bodily haini", that lie had stated to fellow employees that the AFL elections were "crooked" ; and that by use of profanity and shouted insults he had attempted to break up local membership meetings. The statement as to Harris alleged that she had attempted to implant in the minds of fellow employees the thought that the AFL was aiding and abetting the company ; that she hail circulated rumors that a general pay cut was being put through because of the failure of the bargaining committee to negotiate a favorable job evaluation , that she had engaged in improper conduct ( not described ) in the girls ' restroom ; that she had violated "rules of conduct at work" ; that she had attempted to organize girls in her department to sit down because another type of job paid more than the one she held ; and that she had stolen articles in the plant for which fellow employees had been held responsible The statement as to Harvey alleged that he had attended three local meetings at which he had been out of order and had disregarded warnings of the chair concerning his conduct ; that he had repeatedly told employees in the plant that the bargaining committee had sold out to the company , and that lie had made false statements concerning the members of the Trial Committee No proof was offered at the hearing by counsel for the AFL to substantiate the allega- tions in these statements , nor by counsel for the Board to refute them. Prior to the receipt by them of the notices of expulsion dated May 17, none of the affected employees had ever been advised by the AFL of any complaints against them or of the proposed expulsion proceedings. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stoner, Harris, and Harvey had been expelled from membership in the AFL. There was also submitted to the respondent a copy of the expulsion letters to these employees , setting forth the six charges on which their expulsion was stated to have been predicated , all as set out above. In compliance with the AFL demand for their immediate removal from employment , the respondent, on May 21, 1946, discharged Stoner , Harvey, and Harris, giving them discharge notices which stated that in accordance with the master agreement they had been dis- charged for failure to maintain their good standing membership status in the AFL. 6. The motive underlying the AFL's expulsion from membership of Boyd, Stoner, Harris , and Harvey, and demand for their discharge , and the respondent's knowledge thereof One of the contentions made by counsel for the Board is that the respondent, in complying with the AFL request for the discharge of Boyd, Stoner , Harris, and Harvey, acted with knowledge that the real motivation for their expulsion from the AFL and the demand for their discharge lay in their activities to substitute the CIO for the AFL as a bargaining representative following the expiration of the 1944-1946 contract. There is ample and substantially undisputed support in the record for so much of this contention as relates to the nature and purposes of the CIO activities engaged in by the employees mentioned after April 7, 1946, The facts concerning motivation and knowledge , however, are in sharp dispute, It thus becomes pertinent to inquire into the facts bearing on that question, as reflected by the entire record of this case . At the present stage of this report, the undersigned will not consider the contention of the respondent and the AFL rela- tive to the Board 's authority and power to go beyond the assigned reasons for the expulsion as they appear in the AFL expulsion proceedings and to determine actual motivation and knowledge thereof on the basis of the full record in this proceeding. This contention and others will be considered and ruled on in the section of this report entitled "Conclusions ." This section will be confided merely to a determination of fact, both as to motivation and as to knowledge thereof. Many but not all of the facts bearing upon that question have been set out above. But they have been for the most part merely related in chronological order, with- out any attempt at analysis and synthesis . That will be done here. (a) As to the underlying motive for the expulsions and the discharge demands Any analysis must start off with a presumption of regularity insofar as the AFL expulsion proceedings are concerned . The stated grounds for the explusion of the employees in question were not litigated in this proceeding, and it must be assumed that they have some basis in fact, even though no evidence , one way or the other, was adduced thereon at the hearing in this case. But, as will herein- after be shown , the mere existence of facts which as between the AFL and the affected employees might have supplied a basis for their expulsion is not con- clusive on the issues of this proceeding if it appears from the entire record that these facts furnished the pretext and were not the true cause for the action taken. Here, the record discloses a predisposition on the part of the AFL bargaining committee both to combat the CIO organizational campaign by invoking the "closed shop" sanction of the contract, and, where discharges based upon expul- sions were to be affected thereunder, to cover up the real reason for the action taken in order to hide any taint of illegality. The former is shown by the counter- activity of the bargaining committee, which followed closely on the heels of the EATON MANUFACTURING COMPANY 289 announcement of the CIO campaign,--counteractivity marked by threats made to employees summoned to the AFL office that their continued support of the CIO would lead to loss of their jobs. The latter is shown by the following testi- mony of AFL Regional Director Luplow : Trial Examiner LEFF. Let me put the question. During the period you were communicating with Washburn about the expulsion of these three people [Stoner, Harris, and Harvey], were you aware that the National Labor Relations Board had ruled that it was illegal for an employer to dis- charge an employee near the end of a contract for dual union activities? The WITNESS. I was aware, yes. Q. (By Mr. Rotenberg.) And you have discussed that problem with other officers of the Local Union in your conversation regarding Boyd, Harris, Stoner and Harvey? This problem had come up had it not. A. I do not think it came up in terms that you are using. Q. In your own terms The contents of that matter came up? A. I think the Bargaining Committee was aware of the fact-I think Mr. Maturen and Mr. Minns were aware of the fact that the Company would be in violation of the National Labor Relations Act if they discharged people because of their Union activities prior to a contract. I think that is true. Q There was it considerable discussion, I take, among your officers and stewards regarding this problem? A. There was no considerable discussion regarding this. Q. No considerable discussion. There was some discussion. A. Yes Trial Examiner LEFF. What was the period of this discussion? When did this discussion take place? The WITNESS. I hail discussions with members of the Bargaining Com- mittee in regards to the activities of these individuals on numerous occasions. Trial Examiner LEFT. And was it in the course of these discussions that the question of illegality came up? The WITNESS. I assume it was. The record is replete with other circumstances indicating that the bargaining committee was principally prompted to press for the expulsion and discharge of the employees involved as a measure of reprisal against them for attempting to bring about the designation of a new bargaining representative, and as an object lesson to other employees. There is the element of timing. Charges were filed against Boyd, the acknowledged leader of the CIO campaign, and against Knapp, in whose home the first meeting was held, on the very day after the CIO membership campaign was brought into the open ; and the attempts to induce the respondent to discharge Stoner and Harris, also prominently active in that campaign, followed soon thereafter. Then there is the manner in which the bargaining committee proceeded to effectuate the discharges. In the case of Boyd, as well as Knapp, the bargaining committee demanded their suspension from employment before they had been actually suspended or expelled from AFL membership, and notwithstanding the direction of the membership that they be permitted to work pending trial of the charges. The fact that the bargaining committee, in the words of Maturen, "could not wait until these people were taken care of" clearly discloses that considerations other than loss of membership operated to guide the bargaining committee in its actions with respect to these employees. After the injunction proceeding had stayed the bargaining committee's efforts to deprive Boyd of employment prior to his 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expulsion and had forced a Trial Committee hearing, the bargaining committee eliminated all but one of the original charges , including the charge "Fostering a secession," which might have revealed Boyd's dual unionism as the basis for the recommended expulsion . And the single charge upon which Boyd was tried and found guilty was supported largely by incidents claimed to have occurred months before the expulsion charges were filed and, most specifically , was sup- ported by the Snellinberger incident with respect to which the bargaining com- mittee had earlier ( before Boyd's CIO activities had become known ) represented Boyd in his grievance against the respondent arising from his employment suspension therefor. The sudden turnabout of the bargaining committee 's posi- tion in relation to the Snellinberger incident , as well as its earlier inaction in pressing charges on the other incidents , was not explained . Absent such ex- planation , the only reasonable inference to be drawn therefrom is that Boyd's open CIO activities which had since intervened contributed to the bargaining committee's change of mind n In the case of other discharged employees the method of procedure of the bargaining committee is even more significant . As the exhibits reveal, the bar- gaining committee's original demands for the discharge of Stoner and Harris were predicated , in form at least, upon their alleged delinquencies as employees and not as union members. This circumstance is scarcely consistent with any conten- tion that their lack of good standing status in the AFL was the impelling motive for the discharge requests . It was not until after the respondent , on May 16, had declared that it would not honor the discharge requests unless these employees had been constitutionally expelled from the AFL that the bargaining committee first took steps to meet this condition The necessity for the form of procedure then followed, which sidestepped the usual Trial Committee procedure and invoked an "emergency " power admittedly seldom utilized, was not , explained at the hearing. It cannot be explained on the basis of the nature of the charges pre- ferred. It is most reasonably explained on the basis that the pending CIO cam- paign created an "emergency" requiring prompt and drastic action. Moreover, internal evidence is to be found in the various documents prepared by the AFL bargaining committee indicating that the CIO activities were con- sidered as at least contributing factors in the decision of the committee to seek the expulsion and discharge of the employees in question . Thus, the original charges filed against Boyd accused him , among other things , of "fostering a seces- sion"; the original "grievance" filed against Stoner charged him with "causing dissension and unrest among fellow employees " ; the expulsion notices sent to Stoner, Harris , and Harvey stated among the grounds therefor , "fostering seces- sion from the International Union and Local 433, UAW-AFL" and " causing un- rest and dissension among fellow employees by various statements and slander " "The exoneration of Knapp by the Trial Committee , a committee selected by vote of the AFL membership to hear the charges, has not been overlooked. While this fact is entitled to consideration , no clear conclusion , one way or the other , can be drawn from it. It is clear from the record that the moving force pressing for the discharge of the emplo} ees in question was the AFL bargaining committee and not the AFL membership. It is thus the motive of the bargaining committee, and the respondent 's knowledge thereof, that is the point of inquiry in determining whether Boyd's expulsion and subsequent discharge was in fact induced by his CIO activities The record shows the acquittal of Knapp was no fault of the bargaining committee which vigorously fought for his expulsion as well as that of Boyd In any event , the fairness of the Trial Committee hearing is not in issue ; as noted above it is assumed here that Boyd was guilty of the charge . The issue is whether this or his CIO activities was the real reason which prompted the bargaining committee to seek his expulsion and discharge , and whether the respondent knew of it. EATON MANUFACTURING COMPANY 291 The charge "fostering a secession" when made during a two-union contest for rep- resentation concerning an employee openly active on behalf of a rival union can carry but one connotation, i. e., rival union activities.' Viewed realistically in the same setting, as the Board's broad experience with similar types of situations has shown, such expressions as "causing unrest and dissension among fellow em- ployees" usually carry a like implication. To the foregoing considerations must be added two other facts, perhaps more significant of all: first, that two of the employees involved, Stoner and Harris, were forewarned by AFL officials that their continued support of the CIO would lead to the loss of their jobs ; secondly, that Maturen stated to the press that the bargaining committee intended to expel Stoner as well as Boyd and Knapp for disloyalty in aiding the CIO. Considered realistically and in combination, all these considerations are persuasive and leave no doubt that the real roots of the expulsion of the employees involved lay in their CIO activities. It is found that the expulsion from the AFL of Boyd, Stoner, Harris, and Harvey was induced primarily by their efforts to have the CIO designated as a bargaining agent to suc- ceed the AFL at the end of the 1944-1946 contract term, and that but for such activities no expulsion action would have been taken against them. (b) As to the respondent's knowledge of the underlying motive for the expulsions and the discharge demands Although admitting on cross-examination that they had it "in mind" and con- sidered it a "possibility" that the complainants' CIO activities might have been an inducing cause for the expulsion and discharge demands, Herbert Russell and Minsel both denied that they knew this to be so. Neither of these respondent's witnesses impressed the undersigned as reliable on this aspect of the case. Their testimony throughout was vague and evasive, and, at times, contradictory, incon- sistent with documentary evidence or inherently implausible. Their disclaimer of knowlege cannot in any event be regarded as conclusive. For "knowledge" or the lack of it is an ultimate fact which, unless conceded, must be determined not upon the basis of conclusionary testimony as to its possession or want of it, but upon all the evidence, including all reasonable inference to be drawn therefrom Nor does a finding of employer knowledge concerning the motive of the contracting union, in cases of this type, necessarily depend upon a showing that the employer had official notice from the contracting union disclosing the illegality of its dis- charge demand; it is sufficient if the surrounding circumstances persuasively es- tablish that the employer was actually aware of the improper motive.25 There is ample evidence in this case indicating that the respondent's realiza- tion of the AFL bargaining committee's underlying motive in seeking the dis- charges extended beyond indefinite suspicion and speculation into the area of actual knowledge and belief. Thus, the respondent could scarcely have failed in Boyd's case to connect the discharge demand, originally timed shortly follow- ing the filing of the CIO respresentation petition, with the fact that he was the leader of the CIO organizational activities, a fact widely publicized and admittedly known to it. Particularly is this true in light of the fact that the suspension charges which came to the respondent's notice at the commencement of the injunction proceedings charged him in part with "fostering secession" (thus 21 Luplow conceded at the hearing that, generally speaking, that would be an accurate interpretation of the please. N See, e. g., Matter of Colgate-Palmolive-Peet Company, 70 N L. R B 1202 ; Matter of Rheem Manufacturing Company, 70 N L. R. B 57. 751902-48-vol 76-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD giving support to the authenticity of the newspaper articles which reported the expulsion proceedings as predicated on his dual union activities), as well as the further fact, established by the record, that since the AFL-CIO jurisdictional dispute in 1940-1941, there had been no other instances where the AFL had sought the expulsion or discharge of a member except for non-payment of dues In the case of Stoner and Harris, the respondent must also have been aware that the demand to discharge them was connected with the CIO membership campaign. The original demands in their cases were made long before any expulsion or suspension proceedings had been instituted against them, and, in form at least, were based not upon their alleged dereliction as union members, but as plant employees. Further, the contents of the "grievances" which included such accusations as "intimidation of fellow employees" and "causing dissension and unrest among fellow employees," when realistically considered in the setting of the current representation contest and read in the light of the normal meaning given such phrases in labor circles under similar situations, were such as to lead the respondent to an awareness that the discharge demands were in fact inspired by the employees' rival union activities. And such awareness on the respondent's part must have been fortified when (if Russell's testimony on that point is believed) the respondent requested an amplification of the grievance claims and received only the cryptic reply that it was "union business " The failure of the respondent to pursue the inquiry further or to follow its usual practice, where grievances were filed against employees, of questioning the em- ployees named in the grievance can only be construed as a wilful closing of the respondent's eyes to obvious facts in the interests of expediency, and as a tacit acceptance on its part of the real reason underlying the discharge demands. Nor is this conclusion altered, rather it is strengthened, by the fact that the subsequent expulsion of these employees was in form based upon different charges. For the expulsion of Stoner, Harris, and Harvey flowed directly from a requirement imposed by the respondent that the discharge be conditioned upon prior expulsions, and the respondent certainly knew under these circumstances that the underlying motive remained unchanged. The assertion of the AFL bar- gaining committee, made prior to the expulsion of the complainants, that the employees would not work with them must have added to the realization of the respondent as to the real reason for the discharge requests. Moreover, the consideration given by the respondent to the legality of its discharge action both in a meeting with the AFL bargaining committee and thereafter indicates that it was aware that the employees' dual union activities were involved Thus, Minsel testified that at the initial meeting with the bar- gaining committee arising from the request to discharge Boyd, Knapp, and Stoner, a discussion occurred concerning the legality of discharging these employees near the end of a contract term in view of the pending CIO representation peti- tion. That the respondent was under no misapprehension as to the real basis of the AFL demands is further evidenced by the fact that on the following day Minsel consulted an attorney for advice on the law relating to an employer's liability for discharging under a closed-shop contract employees because of their affiliation with another union. Nor is evidence of direct notice wanting in this case. Such evidence is to be found not only in Forbes' letter of April 12, in the letter written by Boyd's at- torney on May 11 cautioning the respondent against discharging Boyd for "dual unionism," and in the telephone calls of Forbes to Russell and Reisinger to Minsel on the morning of May 16. It is also to be found in the various AFL pre- pared documents, which were in the respondent's possession prior to the dis- EATON MANUFACTURING COMPANY 293 charges, where reference was made to the fact that the expulsion proceedings were initiated in part at least because the employees involved were "fostering a secession" from the AFL That the respondent fully understood the implication of the quoted phrase is apparent from Minsel's admission, while testifying, that when the words "fostering a secession from the International Union and Local Union 433, UAW-AFL," contained in the expulsion notices to Stoner, Harris, and Harvey, were read to him prior to their discharge, lie "assumed that they were involved in a movement against Local 433." Although Morsel did not add this, it is clear from the fact that the CIO membership campaign was the only known movement against Local 433 at the time, that the respondent also inter- preted this phrase to mean that the employees named were engaged in CIO activities and that that was at least a substantial contributing reason for their expulsion. But the finding in this case that the respondent had knowledge of the AFL bargaining committee's underlying motive, although justified thereon, need not and does not rest alone upon the considerations discussed above. There is in the record of this case an udnirsuionn by the respondent disclosing that it was under no illusion as to the underlying motive for the expulsions. Shortly fol- lowing his release by the respondent, Boyd, a war veteran, filed a claim with the Selective Service Board alleging that he had been deprived of employment rights in violation of the Selective Service Act. In answer to that claim the respondent prepared a statement which it submitted to the Selective Service Board on or about June 5, 1946 Concerning the respondent's reason for discharging Boyd the statement read: It is the employer's position . . . that his [Boyd's] discharge was brought about by his own actions, and by his participation in a jurisdictional dispute in which be seceded from his own union and sought to organize employees as a CIO unit, and thereby caused his discharge from his own union and a shut down in the plant of his employer. There are approximately 1100 hourly rated employees in the plant, and they refused to work with Boyd as an employee in the plant.-" While it is true that the statement quoted above refers only to Boyd's case, Russell's testimony, which the record fully supports, that he regarded all cases as "tied into' one" leaves no doubt that the respondent knew in the cases of Stoner, Harris, and Harvey, as well as in the case of Boyd, that their ex- pulsion from the AFL was prompted by their CIO activities in connection with the representation contest, and, further, that the respondent in effecting all four discharges acted with such knowledge and belief. It is so found. C. Conclusions 1. As to interference, restraint, and coercion There remain for consideration two specific allegations of interference, re- straint, and coercion, all others havingearlier in this report been found un- supported by the evidence. The first is based upon Superintendent Levi's warning to certain employees on April 11 or 12, 1946, that they would endanger their job security by sup- 11 The respondent did not contend at the hearing that its statement concerning the reason for Boyd's expulsion from the Union was based on facts acquired by it during the period intervening between the date of the discharge and the date of the preparation of the statement. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porting the CIO. Levi's remarks are found to have been coercive whether they are interpreted as a warning that the respondent would be the moving cause of the impairment of their job security, or, as appears more reasonable, as a warning that such impairment would be initiated by the AFL and acquiesced in by the respondent. For the respondent could not at that time legally agree to acquiesce in reprisal measures against CIO supporters, even upon demand of the AFL made under the union security provisions of its contract.24 The second is based upon the respondent's execution of the May 1946 Master Agreement with the AFL. This exclusive collective bargaining contract con- taining provisions which conditioned employment on continued membership in the AFL was made in the face of the CIO representation petition and the CIO unfair labor practice charge, both of which were pending undetermined before the Board at the time the contract was executed, and at a time when the re- spondent was aware, as evidenced by the stipulation executed simultaneously therewith, that there existed a real question concerning representation affecting its Saginaw employees. Under the circumstances and for the reasons expressed in the Midwvest Piping case,2$ the principle of which is clearly controlling here, the undersigned finds that the respondent, by its conduct in executing the Master Agreement in May 1946, contravened the letter and spirit of the Act, breached its obligation of neutrality, indicated its approval of the AFL, accorded the AFL unwarranted prestige, encouraged membership in the AFL, discouraged membership in the CIO, and thereby rendered unlawful assistance to the AFL The respondent's violation of the Act in this respect was especially flagrant, since, as Russell admitted at the hearing, the respondent knew when it made the contract that the maintenance of membership provisions thereof would be relied upon by the AFL to force the discharge of certain employees who, the record establishes, were known by the respondent to be CIO supporters.22 There is clearly no merit to the contention of the respondent and the AFL that it would have been illegal for the respondent at that time to refuse to negotiate and execute the contract with the AFL since no new bargaining repre- sentative had yet been certified. Nor is there any merit to their further con- tention that until such time as the Board at least administratively determined that a question concerning representation had arisen, the representative status of the AFL with all its implications must be presumed to have continued The more filing of a petition did not, it is true, prove that the Board would determine that such a question had arisen or that it would process the petition to an election But it did- operate as notice to the respondent that such a claim had been submitted to the Board's administrative process which includes an in- vestigation of the petitioner's prima facie showing of interest. Until such investigation was completed and a determination adverse to the petitioner was made, the respondent could not legally disregard the orderly representation procedures set up by the Board and arrogate to itself the resolution of the 2' The undersigned has not overlooked the respondent 's contention that Levi 's remarks constituted an isolated instance of anti -CIO conduct by its supervisory personnel. This will be considered in the section below entitled "The remedy " 28 Matter of Midwest Piping and Supply Co ., Inc, 63 N L. R. B 1060 . See also Matter of Phelps Dodge Copper Products Corporation, 63 N L R. B 686 29 Cf. Wallace Corporation v. N. L. R B ., 323 U. S 248 , where the Supreme Court , answer- ing an argument of the Company that the closed -shop contract in that case was entered into because the Company was legally obliged to bargain with the majority union, said, The company was not compelled by law to enter into a contract under which it knew that discriminatory discharges of its employees were bound to occur. EATON MANUFACTURING COMPANY 295 conflicting representation claims. As the Board observed in the General Electric X-Ray case: 30 The Board may reasonably require restraint on the part of an employer and a labor organization engaged in negotiating during the relatively short period necessary to conclude these preliminary investigations and hold that they act at their peril in consummating an agreement with knowledge of the pendency of the proceeding before the Board [citing the Midwest Piping case]. Equally without sound basis is the contention made by the AFL that the Midwest Piirag doctrine should in no event be applied in a case where the processing of a representation petition has been delayed by the filing of a charge by the petitioner , and particularly so where the charge is subsequently found to be unsupported . The AFL argues that the application of that doctrine in such a situation would encourage petitioning unions to continue to engage in "dog in the manger" tactics , such as the Board condemned in the General Electric X-Ray case, and would permit them in effect to circumvent the rule of that case by filing delaying charges, in order to gain additional time for organizational activities. While the possibility of abuse of the Board's process by such tactics cannot be ignored , the solution is not to be found in the suggestion of the AFL that the Board uphold contracts made in the face of pending representa- tion proceedings where the filing of charges by the petitioner has intervened. That in effect asks the Board to relinquish its protection of employee rights against employer interference. Rather, it lies in administrative vigilance in guarding against abuse of the Board's process and in the expeditious processing of cases. In any event , as applied to the instant case, the record does not sup- port a finding that the CIO acted other than in good faith and out of a desire for a free and untrammeled election in filing its original charge , as a result of which the processing of the representation petition was interrupted. The claim of both the AFL and the Respondent that the allegations of the original charge were not proved at the hearing in this case is only partially accurate; the finding herein made of interference, restraint , and coercion by Levi 's remarks is directly within the framework of that charge . Moreover, as the Board found in the Midwest Piping case, where a somewhat similar argument was advanced, the fact "that no unfair labor practices are found . . . on the original complaint does not alter the effect of the respondent 's later breach of its neutrality obliga- tion." It is found that by executing the Master Agreement with the AFL effective May 16, 1946, and applying it to the Saginaw plants, and by the remarks of Levi to employees referred to above , the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2 The discriminatory discharges of Boyd, Stoner, Harris, and Harvey The basic contention of the respondent and the AFL is that Boyd, Stoner, Harris, and Harvey were discharged at the request of the AFL because of their expulsion from that union and that the discharges did not constitute an unfair labor practice because they were made pursuant to an agreement with the AFI4 then in effect which required membership in that labor organization as a con. dition of employment. But the proviso to Section 8 (3) of the Act permits clis. ° Matter of General Electric X-Ray Corporation, 67 N. L R. B 997. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges of employees pursuant to the terms of a closed-shop or similar contract only where the contract was made with a labor organization which was not established, maintained, or assisted by any unfair labor practice and was the representative of a majority of the employees in an appropriate unit when made. As found in the preceding section of this report, the master agreement effective May 16, 1946, under which the discharges are sought to be justified, was, in its application to the Saginaw employees, the product of an unfair labor practice flowing from the respondent's assistance to the AFL That agreement, therefore, does not meet the conditions of the proviso and affords no protection to the respondent in discharging the employees named. Although the foregoing conclusion is diapositive of the issue, the case was also tried, and principally litigated, upon the theory that even if the validity of the May 1946 master agreement were otherwise assumed, the respondent's defense must nevertheless fail in view of the Rutland Court 33 and Wallace 33 doctrines. The application of those doctrines to the instant case will therefore be considered. As has been found above, the respondent in discharging the four employees named acted with knowledge that their expulsion from the AFL and the demands for their discharge were in reality motivated by their activities on behalf of the CIO which were designed to bring about a change of bargaining representatives during a period appropriate for such purpose. The Rutland Court principle, which holds that even the provisions of a valid closed-shop contract sanctioned by the proviso to Section 8 (3) must under such circumstances give way to the more basic right of employees without fear of reprisal to change representatives, is thus clearly applicable. This conclusion is not altered by the existence of grounds for expulsion other than the employees' rival union activities, since, as found above, the expulsions and discharge demands were induced, as the respond- ent knew, at least in substantial part by the employees' activities to have the CIO designated at a Board election to succeed the AFL as bargaining representative, and would not have occurred but for such activities.33 In reaching this conclusion there has been considered the contention, principally stressed by the AFL, that the Board has neither the authority nor the power to go behind the assigned reasons for the expulsions of union members and to determine, upon the whole record in the unfair labor practice proceeding, that the real reason had its roots in the rival union activities of the expelled employees. It is true, as argued by counsel for the AFL, that the Board may not try de novo union expulsion proceed- ings and make a determination concerning the legality of the expulsion as between the Union and the expelled member. That is an internal union matter with which the Board has no concern. , But it is not the object of this proceeding to decide whether the expelled employees should be reinstated to their status as AFL members. Rather it is to decide whether these employees have been illegally discriminated against in their employment as a result of having engaged in activities protected by the Act. That is a matter with which the Board does have concern, and which it cannot delegate to a union for determination. Just as the Board in discriminatory discharge cases is not bound to accept the reason assigned by an employer for a discharge where it is persuaded by the entire record that 31 Matter or Rutland Court Owners, Inc, 44 N L R B 587, 46 N. L R. B 1040 See also Matter of Portland Lumber Mills. 64 N. L R B 159, Matter of American White Cross Laboratories, Inc, 66 N L. It B. 866 Mattes of Rheeni Jlanufnfturinq Company, 70 N L R. B. 57; Matter of Colgate-Palmolive-Peet Company, 70 N. L. R. B. 1202 32 Matter of Wallace Corporation, 50 N L It B 138, enf'd 141 F. (2d) 87 (C C A 4), aff'd 323 U S 248. See also Matter of Cliffs Dow Chemical Company, 64 N L R B 1419 33 See Matter of American White Coss Laboratories, Inc, supra. EATON MANUFACTURING COMPANY 297 the assigned reason furnished the pretext rather than the real reason for the action, so, also, it is not bound to accept the assigned reason for an expulsion where, as here, it appears from the record as a whole that the real reason, known to the employer, was bottomed upon activities of the expelled employee which are protected by the Act. If, as argued by the AFL counsel, the Rutland Court doc- trine can only be applied to a situation where the Union holding a closed-shop contract admits that the expulsions leading to the discharges were for dual union activities, the evil which Rutland Court sought to eliminate will not have been eradicated, only the method of perpetuating it will have been changed. As has also been found above, the discharges were made under the master agree- ment effective May 16, 1946, which was executed by the respondent shortly prior to the discharges with knowledge that it would be relied on by the AFL for the purpose of demanding the discharge of the named employees because of their prior CEO activities In view of the Wallace doctrine, the maintenance of mem- bership provision of the master agreement cannot, therefore, serve the respond- ent as a defense. For, as the Board recently-held in the Cliffs Dow Chemical Company case,` upon the authority of the Wallace case, . . . an agreement is not valid within the meaning of the proviso of Sec- tion 8 (3) so as to serve as a defense to the discharge of an employee there- under when made by an employer with knowledge that it will be used by the contracting union as a device for depriving such employee of his employment because of his prior union activity. There is one further reason, applicable only to the case of Boyd, why the respondent may not defend its discharge action on the basis of the maintenance of membership provision in the contract, effective May 16, 1946. That contract, the language of which is free from ambiguity in that respect, requires only such employees as were members of the AFL on its effective date to retain their status as members in good standing as a condition of employment. Boyd, however, had been expelled from the AFL prior to that date and on the effective date of the contract was not a member of the AFL to whom the maintenance of membership clause applied. The respondent therefore was under no obligation to discharge Boyd thereunder at the request of the AFL on May 16, 1946'6 Under the circumstances set forth above, and upon the record as a whole, it is concluded that the respondent was not required on demand of the AFL to discharge the four named employees under the terms of the May 1946 contract because they were no longer members of the AFL. Nor is this conclusion affected by the fact that the respondent may have been forced into such action by economic pressure exerted by the AFL; for the law is clear that an employer may not free himself from culpability for his unlawful conduct by reason of such circum- stances 36 Having notice of the illegal purpose behind the demand, the respondent was obliged as a matter of law to refuse to comply therewith. And having effected the discharge, it must be held accountable for the discriminatory act. It is therefore found that by its discharge of John Boyd, on May 16, 1946, and of Marvin Stoner, Lenore Harris, and Francis Harvey, on May 21, 1946, and -" Cited supra 16 See Matter of Baker cC Company, Inc, 68 N L R B 830: Matter of Phelps Dodge Copper Products Corporation, supra, Matter of Coloaie Fibre Company, Inc, 69 N L R B. 589 se See N. L. R. B V. Hudson Motor Car Co., 128 F. (2d) 528 (C. C. A. 6) ; Matter of Star Publishing Company, 4 N L R B 498, enf'd 97 F. (2d) 465 (C C. A. 9) ; Matter of Isth- mian Steamship Company, 22 N. L. R. B. 689, 699, enfd 126 F. (2d) 598 (C C. A. 2). 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failure thereafter to reinstate them, the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the CIO and encouraging membership in the AFL, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent unlawfully assisted the AFL and inter- fered with the CIO by recognizing and entering into an exclusive bargaining contract with the AFL covering employees at its Saginaw plants and containing. provisions conditioning employment on AFL membership. Obviously, a free selection of a bargaining representative at the Saginaw plants cannot be made when recognition and a contract has been accorded to one of the competing unions. It will accordingly be recommended that the respondent cease and desist from recognizing the AFL as such exclusive bargaining representative at its Saginaw plants unless and until it shall have been certified as such by the Board. Since the master agreement, effective May 16, 1946, insofar as its application extends to the Saginaw plants, perpetuates the respondent's unlawful assistance to the AFL and precludes the employees from presently exercising their right to select a bargaining representative of their own choice, it will further be recommended that the respondent cease giving effect to it at its Saginaw plants or any extension, renewal, modification, or supplement thereof, unless and until the AFL shall have been certified by the Board as the exclusive representative of the employees at the respondent's Saginaw plants. Nothing herein, however, shall be construed as requiring the respondent to vary any wages, hours, seniority, or other substantive features of its relations with the employees themselves which the respondent has established in the performance of this contract, or to prejudice the assertion by the employees of any rights they may have under such agree- ment. It has also been found that the respondent discriminatorily discharged John Boyd, Murvin Stoner, Lenore Harris, and Francis Harvey. It will be recom- mended that the respondent reinstate them to their former or substantially equivalent position 34 without prejudice to their seniority or other rights and privileges and that the respondent make them whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them $T In accordance with the Board 's consistent inteipretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wher- ever possible, but if such position is no longer in existence , then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. EATON MANUFACTURING COMPANY 299 by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from the date of discrimination to the date of the offer of reinstatement, less his net earnings n during said period. It has also been found that the respondent interfered with, restrained and coerced its employees in the exercise of their rights under the Act by certain remarks made by Levi, its shift superintendent. But since it appears that Levi's remarks constituted an isolated instance of such anti-union conduct, that the respondent subsequently voluntarily posted a notice in its Saginaw plants stating that it would not interfere with the exercise of employee rights under the Act, and that the respondent's course of conduct as a whole does not reflect on the respondent's part "an attitude of opposition to the purposes of the Act to protect the rights of employees generally," 39 a broad cease and desist order will not be recommended. The undersigned will, however, recommend that a limited order be made directing the respondent to cease and desist from engaging in any conduct like or related in kind to that herein specifically proscribed. Upon the basis of the foregoing findings of fact and upon the entire record in the case the undersigned makes the following: CONCLUSIONS OF LAw 1 International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, affiliated with the Congress of Industrial Organiza- tions, and International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, and Local 433 thereof, are each a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of John Boyd, Murvin Stoner, Lenore Harris, and Francis Harvey, thereby discouraging membership in International Union, United Automobile, Aircraft and Agricultural, Implement Workers of America (UAW-CIO) and encouraging membership in International Union, United Automobile Workers of America (UAW-AFL) and Local 433 thereof, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Eaton Manufacturing Company, Wilcox-Rich Division, Saginaw, Michigan, and its agents, successors, and assigns shall : ss By "net earnings" is meant earnings less expen§es , 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. 39 May Department Stores Co v. N. L. R. B, 326 U. S. 376. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Recognizing International Union, United Automobile Workers of America, affiliated with the American Federation of Labor and/or Local 433 thereof, as the exclusive representative of any of its employees at its Saginaw plants, for the purposes of collective bargaining unless and until such organizations, or either of them, shall have been certified by the National Labor Relations Board as the exclusive representative of such employees ; (b) Giving effect, insofar as it may be applicable to employees of its Saginaw plants, to its contract, effective May 16, 1946, with International Union, United Automobile Workers of America, affiliated with the American Federation of Labor, or to any extension, renewal, modification, or suppleluent thereof, or to any superseding contract with that labor organization or any affiliate thereof, unless or until said organizations, or either of them, shall have been certifier) by the Board as the representative of employees at its Saginaw prnts, (c) Discouraging membership in International Union, United Automobile, Air- craft and Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, and encouraging membership in International Union, United Automobile Workers of America (UAW AFL) and Local 433 thereof, or any other labor organization, by discharging or refusing to reinstate any or its employees, or by discriminating in any other manner in regard to their hire of tenure of employment or any term or condition of their employment; (cl) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor or- ganizations, to join or assist United Automobile, Aircraft and Agricultural Im- plement Workers of America (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective barganung, or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affiiinative action, which the undersigned finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from International Union, United Automobile Workers of America (UAW-AFL) and/or Local 433 thereof, as the exclusive representative of any of its employees at its Saginaw, Michigan, plants. for the purposes of collective bargaining with respect to rates of pay, wages. hours of employment, and other conditions of employment, unless and until said organizations, or either of them, shall have been certified by the National Labor Relations Board as the representative of such employees; (b) Offer to John Boyd, Murvin Stoner, Lenore Harris, and Francis Har- vey immediate and full reinstatement to their former or substantially equiva- lent positions without prejudice to their seniority or other rights and privileges ; (c) Make whole John Boyd, Murvin Stoner, Lenore Harris, and Francis Hai'- vey for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a suns of money equal to an amount determined in the manner set forth in the section entitled "The remedy" above ; (d) Post at its plant at Saginaw, Michigan, copies of the notice attached to the Intermediate Report herein, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent's representative, be posted by the respondent im- mediately upon receipt thereof and maintained by it for sixty (60) consecutive clays thereafter in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the respond- EATON MANUFACTURING COMPANY 301 ent to insure that said notices are not altered, defaced, or covered by any other material; (e) File with the Regional Director for the Seventh Region on or before ten (10) days from the date of the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondents notify said Regional Direc- tor in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. It is further recommended that the complaint, insofar as it alleges the com- mission by the respondent of unfair labor practices prior to April 1946, be dis- missed. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 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 (in- cluding rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or coun- sel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, 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 Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203.39, should any party desire per- mission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order trans- ferring the case to the Board. ARTHUR LEFF, Trial Examiner. Dated October 9, 1946. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 1. WE WILL NOT recognize INTERNATIONAL UNION, UNITED AUTOMOBILE WoxxERs OF AMERICA (UAW-AFL) and/or Local 433 thereof as the exclusive representative of any of our employees for the purposes of collective bar- gaining at our Saginaw plants unless and until said organizations, or either of them, shall have been certified by the Board as the representatives of such employees. 2. WE WILL NOT give effect to our contract effective May 16, 1946, with INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA (UAW- AFL), or to any extension, renewal, modification or supplement thereof, or 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to any superseding contract with said labor organization or Local 433 thereof, unless and until said organizations, or either of them, shall have been certi- fied by the Board as the representative of our employees at our Saginaw plants. 3. WE WILL OFFER to the employees named below immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. John Boyd Lenore Harris Murvin Stoner Francis Harvey 4. All our employees are free to become or remain members of INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) or any other labor organization. We will not discriminate in regard to hire or tenure of employment against any em- ployee because of membership in or activity on behalf of any such labor organization. 5. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. EATON MANUFACTURING COMPANY, WILCox-RICH DIVISION, Employer. By------------------------------------- (Representative) (Title) Dated -------------------------- NoTE.-Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in ac- cordance 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.