Federal-Mogul Corp.

In the Matter Of FEDERAL-MOGUL CORPORATION, FEDERAL-MOGUL SERV- ICE DIVISION 1 and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW- CIO), and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, A. F. OF L., PARTY TO THE CONTRACT In the Matter of FEDERAL-MOGUL CORPORATION, FEDERAL-MOGUL SERV- ICE DIVISION and CARL HOUSER, AN INDIVIDUAL and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, A. F. OF L., PARTY TO THE CONTRACT Oases Nos. 17-C-1378 and 17-C-1382,2 respectively. Decided February 9, 1948 Messrs. Phil E. Thompson and Harry L. Browne, for the Board. Terrell & Slaughter, by Messrs. Frank H. Terrell, Charles W. Hess, and James W. Taylor, all of Kansas City, Mo., for the respondent. Mr. John E. Rinkenbaugh, of Kansas City, Mo., for the C. I. O. and for Carl Houser. Messrs. John J. Manning and William Ashworth, both of Kansas City, Mo., for the A. F. of L. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW- CIO), herein called the C. I. 0., and by Carl Houser, an individual, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its complaint, dated September 3, 1946, against Federal-Mogul Corporation, Federal-Mogul Service Division, Kansas City, Missouri, herein called the respondent, alleging that the respond- Incorrectly designated in the complaint as "The Federal Mogul Company." z These two cases were consolidated by Order of the Board dated September 3, 1946. 76 N. L. R. B., No. 1. I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and the charges, accompanied by notice of hearing thereon, were duly served upon the respondent, the C. I. 0., Carl Houser, and International Union, United Automobile Workers of America, A. F. of L., Party to the Contract, herein called the A. F. of L. With respect to the unfair labor practices, the complaint alleged in substance: (1) that on March 13, 1946, the respondent entered into a written closed-shop contract with the A. F. of L., although, at the time of the execution of the contract, the A. F. of L. did not represent an uncoerced majority of the respondent's employees in the unit covered by the contract. and the A. F. of L. was not, at that time, the representative of these employees within the meaning of Section 9 (a) of the Act; that the respondent entered into the said closed-shop contract subsequent to the receipt of notices served on the respondent by the C. I. O. on,March 12, 1946, and again on March 13, 1946, that it represented a, majority of these employees, and requested the re- spondent to recognize it as their exclusive representative for the pur- pose of collective'bargaining; and that the respondent has maintained and enforced the closed-shop contract from the date of its execution to the date of the issuance of the instant complaint; (2) that on or about March 23, 1946, the respondent discharged, and thereafter re- fused to reinstate, nine of its employees 3 for the reason that they and each of them joined or assisted the C. I. O. or engaged in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, and because they refused to join or assist the A. F. of L.; (3) that on and after March 12, 1946, the respondent vilified, disparaged, and expressed disapproval of the C. I. 0.; in- terrogated its employees concerning their union affiliation; urged, per- suaded, threatened, and warned them against 'assisting the C. I. O. or becoming or remaining members of the C. I. 0.; urged, persuaded, threatened, and warned them to become and remain members of the A. F. of L.; assaulted its employees and permitted them to be as- saulted because they were active in supporting the C. I. 0.; threat- ened its employees with discharge if they did not join the A. F. of L., or if they engaged in any activity in behalf of the C. I. 0., and promised and granted wage increases to its employees for the purpose of in- fluencing them to join and assist the A. F. of L. and to prevent them g Those named' in the complaint were : Charles Askren, Charles Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Earnest Page, Clayton Yeager, and Harvey Yeager. FEDERAL-MOGUL CORPORATION 3 from joining or assisting the C. I. 0.; and (4) that by the aforesaid acts and statements the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Pursuant to notice, a hearing was held at Kansas City, Missouri, on September 16,17, and 18,1946, before W. P. Webb, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Board, the respondent, the C. 1. 0., Houser, and the A. F. of L. were represented at and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues, was afforded all parties. On September 13, 1946, counsel for the respondent had filed with the Regional Director written motions (1) to dismiss the entire com- plaint because the respondent was incorrectly designated in the cap- tion of the complaint, and (2) to make the complaint more definite and certain. These motions were referred to the Trial Examiner. The respondent had been correctly designated in the charges which had been filed by the C. I. 0., attached to the complaint, and duly served upon the respondent. It appearing that the respondent had not been prejudiced in any way by the erroneous designation in the cap- tion of the complaint, the Trial Examiner, at the opening of the hear- ing, granted a motion by counsel for the Board to correct the designa- tion of the respondent in the complaint, and denied the motion filed on September 13, 1946, to dismiss the complaint. The respondent's mo- tion to make the complaint more definite and certain was granted in part and denied in part. The information requested was substan- tially supplied orally on the record by counsel for the Board. At the beginning of the hearing, the A. F. of L. filed a written mo- tion to intervene in the proceeding, which was granted by the Trial Examiner without objection. The respondent's answer, which was received in evidence together with the other pleadings, admitted certain allegations of the com- plaint with respect to its corporate existence and the nature of its busi- ness, but denied that it had engaged in or was engaging in the alleged unfair labor practices. The answer stated that the respondent had discharged all the individuals named in the complaint except Earnest Page because they had ceased to be members in good standing of the A. F. of L., and that Page had voluntarily quit his job. . At the conclusion of the Board's case-in-chief, and again at the con- clusion of the hearing, counsel for the respondent moved to dismiss the complaint in its entirety for lack of proof, and also, at the con- clusion of the hearing, to dismiss the complaint in respect to Page on the ground that the evidence failed to disclose that he had been dis- 781902-48-vol. 76--2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged. The Trial Examiner reserved ruling on these motions at the hearing. These motions were denied by the Trial Examiner in his Intermediate Report. Subsequent to the hearing, the respondent and the A. F. of L. filed briefs with the Trial Examiner. On October 31, 1946, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent, the C. I. 0., and the A. F. of L. In the Intermediate Report, the Trial Examiner found, upon the entire record and from his observation of the witnesses, that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Sec- tion 8 ( 1) and (3) and Section 2 (6) and (7) of the Act , and recom- mended that the respondent cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Thereafter; the respondent and the A. F. of L. filed exceptions to the Intermediate Report and supporting briefs. On October 14, 1947, the Board heard oral argument at Washington , D. C., in which the respondent participated ; neither the C. I. O. nor the A. F. of L. appeared. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Inter- mediate Report, the exceptions and briefs , the oral argument before the Board , and the entire record in the case, and , insofar as the excep- tions are inconsistent with the findings of fact, conclusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent , Federal -Mogul Corporation , Federal-Mogul Serv- ice Division , is a Michigan corporation , duly licensed to do business in the State of Missouri. It owns and operates an office and plant located at 1733 McGee Street, Kansas City , Missouri, where it is engaged in the business of babbitting connecting rods and main bear- ing caps for general sale and distribution . The principal raw material used at the plant is babbitt metal . The respondent normally uses at the plant approximately 3,000 pounds of babbitt metal each month, valued at approximately $7,200, all of which is obtained from points outside Missouri . During the calendar year 1945 , the finished output of the plant consisted of approximately 101,293 bearing caps and rods valued at approximately $75,000, of which about 40 percent was FEDERAL-MOGUL CORPORATION 5 distributed and shipped to points outside Missouri. The respondent concedes that it is engaged in commerce within the meaning of the Act, and we so find. H. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO), and Interna- tional Union, United Automobile Workers of America, A. F. of L., are labor organizations admitting to membership employees of the respondent.' III. THE UNFAIR LABOR PRACTICES A. The 194contract On February 24, 1942, the respondent and the A. F. of L. entered into a closed-shop contract which provided, among other things, for overtime pay, seniority, and vacations, for the establishment of a committee of from three to five employees to discuss complaints or grievances with the employer, for a safety committee to be composed of employer and union members, for opening the agreement upon due notice for the adjustment of wages in the event of a cost-of-living increase of 10 percent or more, and, finally, that- this contract shall become effective when signed and remain in full force and effect until February 24th, 1943, and thereafter. After February 24th, 1943, either of the parties hereto may ask for any change in this agreement by giving to the other written notice thereof, at least thirty (30) days prior to the expiration of the then current term, but in default of such notice, this agree- ment shall continue upon the same terms and conditions as herein contained for a further period of one year, and so on from year to year. The contract stated that it was entered into by the employer and "all the plant employees engaged in the manufacturing and servicing of bearings and parts, except all clerical and warehouse help, through their respective representatives," and was signed by Ralph Hutinger as manager of the plant and by William Ashworth as business repre- sentative of the A. F. of L. The contract named the employees covered by it and their respective wage rates. The employees listed were as follows: Both of these labor organizations have complied with the filing requirements specified in Section 9 (f), (g), and ( h) of the National Labor Relations Act, as amended. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charles Askren 5 Wm. Martin Charles Cooper 6 Walter Redfield Ben Dodson Ira Robinson J. Dodson 7 Ray Robinson Ralph Hamlin Wm. Wagner Charles Hill - Because the unit at the respondent's plant was so small, the A. F. of L. did not set it up as a separate local, but incorporated it into Local 447, which was made up of employees of 100 or more small plants in the area. Accordingly, the unit in the respondent's plant was not given a charter, did not conduct separate membership meet- ings, and did not elect its own officers. The only A. F. of L. employee- representative in the plant was Ralph Hamlin, who had assisted in organizing the A. F. of L., and was named shop steward. He was not replaced as steward when he became a supervisor or when he left the plant." Some of the employees became dissatisfied with the way their union was operated. They felt that certain problems were peculiar to their own employment conditions and could not be properly discussed at meetings attended by employees from other plants. As a result of this dissatisfaction Hamlin discussed with Hutinger early in 1943 the possibility of disbanding the A. F. of L., but was told by Hutinger that nothing could be done until the contract had been in effect for a year.9 At about this time Hamlin telephoned to the Regional Office of the Board in Kansas City, Missouri, to inquire about discontinuing the A. F. of L. representation, but was informed that it would be necessary to have a meeting of the A. F. of L. 'representatives, the respondent, and the employees. Hamlin tried to reach Ashworth by telephone. When he was unable to do so, he informed Ashworth's secretary of the purpose of his call. Ashworth admitted that his secretary gave him a 6 Ashworth testified that Askren 's membership card was dated March 11, 1942 , 2 weeks after execution of the closed -shop contract 6 Cooper, testified that he had never signed an A F. of L membership card. 4 Ashworth testified that the member ship cards of both Ben and J Dotson ( incorrectly designated in the 1942 contract as Dodson ) were dated March 11 , 1942 There was no evidence as to the dates on which the other employees named in the 1942 contract became members of the A F of L. Since Ashworth was testifying with the membership cards in his hands, we credit the accuracy of his testimony with regard to the dates on the cards, and accordingly discredit Hutinger's testimony that "in 1942 [ the A. F. of L ] . proved to my satisfaction that they (lid represent not a majority , but all of them, . . . by showing me cards with the signatures of all the people involved , and upon my exam- ination of these cards with the signatures of the employees , whose signatures I recognized." 8 Hamlin was made a leadman in May 1942 , and was a foreman from August 1942 until lie entered the armed forces of the United States in August 1944. He had replaced Foie- man Franklin , who left the respondent 's employ from May 1942 until September 1944 At the time of the hearing Hamlin was seeking reinstatement with the respondent. 9 I-Iutinger did not testify about this matter so Hamlin 's testimony is uncontradicted FEDERAL-MOGUL CORPORATION T note stating that Hamlin had called and had said "that they wanted to have a meeting to vote the union out of the shop or were going to have a meeting." Ashworth did nothing with respect to this note because, he testified, he attributed it to Hamlin's personal pique at not having been elected an A. F . of L. officer, he had received no indications from other members that they shared Hamlin 's views, and there was a con- tract in existence which had not yet been in effect for a year and he "knew they weren't going to vote the contract out until the expiration of the current term of it anyway." During the war years many of the respondent's employees left to enter the armed forces or to obtain jobs in war plants at higher rates of pay than prevailed at the respondent 's plant, which was not en- gaged in war production . The respondent's new employees refused to join the A. F. of L., maintaining that it was not worth their while, in view of their comparatively low wages , to pay the A. F. of L. initiation fees and dues, and that, rather than do so , they would quit their jobs. As a result the A . F. of L. agreed with the respondent late in 1943 or early in 1944 that the closed -shop provisions of the contract should be waived. Thereafter new employees were not re- quired to pay initiation fees and old employees who had not already clone so discontinued their dues payments . In the period that fol- lowed the signing of the 1942 contract, there was a complete turn-over of personnel. In 1944 Ashworth told Hutinger that other non-war production plants in the area had been permitted by the Wage Stabilization Board to grant wage increases , and proposed that Hutinger request per- mission to do likewise. Hutinger, who was manager of the respond- ent's District $, comprising plants in Kansas City and St. Louis, Mis- souri, and a branch office in Omaha, Nebraska , discussed this proposal with the "industrial relations man" in the respondent's Detroit office, following which an application was filed with the Wage Stabilization Board for wage increases in the three areas under Hutinger 's super- vision. The A. F. of L. was not named on the application , nor was a copy of the 1942 contract attached thereto , although the application form sought such information . The respondent explains its failure to furnish this data on the ground that the application covered three locations, only one of which was organized. It is not clear why the respondent could not state on the application that one of the three units was organized, particularly when, after months of delay, Hu- tinger was informed by the respondent 's Detroit office that "St. Louis was being held up*because they didn't have a union , but that Kansas City did-they didn't know about Kansas City . . ." In any event, 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ashworth finally became impatient about the delay, and succeeded in persuading the local Wage Stabilization Board representatives to grant the wage increases for the employees at the Kansas City plant. The respondent and the A. F. of L. maintain that the 1942 contract was automatically renewed on February 24, 1943, and each year there- after up to and including February 24, 1946, and, further, that al- though the closed-shop provision had been waived, other provisions of the contract were observed from 1942 to 1946. Ashworth testified, for example, that during this period "we had two or three grievance meetings in regard to one of the fellows that wanted to be transferred to a lathe." Ashworth identified this employee as Joe Scribano. He testified that he got notice of the grievance from "the committee that helped negotiate the first agreement." 10 Hutinger also testified he could "remember one fellow that had grievances during 1944, 1945, and 1946. Scribano." 11 No other employee is named as having pre- sented a grievance through the A. F. of L. The fact that Hutinger and Ashworth themselves handled the Scribano grievances demon- strates that there was no employee-grievance committee in the plant. It was admitted that certain other provisions of the contract were never observed. The safety committee, for example, was never established. Hutinger claimed that even during the period when the contract Was, as he described it, "dormant," he "cleared" new employees with the A. F. of L. His testimony in this respect was as follows : I can't give you a particular name, but I can tell you this : Whenever we hired them, hired the people, that they were told to be cleared through the union, and I imagine the union would have those records or possibly we would down to the office, the fact that we had notified the union or sent the man out there.. . . When they were employed, the union-we were obliged to report to the union that the man was hired. No records were presented to substantiate this vague testimony, nor was there any evidence that new employees were aware that they were being `.`cleared" with the A. F. of L. The Trial Examiner found in his Intermediate Report that the 1942 contract was abandoned by the respondent and the A. F. of L. in the latter part of 1943. The respondent and the A. F. of L. have 10 Ashworth testified that a shop committee of three employees participated in the nego- tiation of the contract and were signatory parties to it. When it was pointed out to him that the only copy of the contract which had been presented at the hearing bore no such signatures , Ashworth agreed to produce a true copy so signed , but such copy was never forthcoming 11 Scribano, who had joined the A. F. of L. In August 1943 , ceased paying dues in Janu- ary 1944 . He was one of the first group to join the C. I. O. on March 12, 1946. FEDERAL-MOGUL CORPORATION 9 taken exception to this finding. We do not agree with this finding of the Trial Examiner as it appears that there was some compliance with the contract, however limited and infrequent. Despite the com- plete turn-over in personnel, the failure to enforce the closed-shop provision, and the unawareness of some employees that there was an A. F. of L. union or contract in the plant, we find it unnecessary herein to determine whether or not the contract was renewed each year until 1946, or whether or not the A. F. of L. had become "defunct" insofar as the respondent's employees were concerned 12 Under the terms of the complaint herein, we are concerned with the 1942 con- tract only to the extent that it has a bearing upon the validity of the contract executed on March 13, 1946, as discussed below. B. The 1946 contract 1. The advent of the C. I. O. in the plant Early in 1946, employee James Dotson inquired about the possi- bility of having the C. I. O. organize the respondent's plant. This inquiry came to the attention of John E. Rinkenbaugh, international representative of the C. I. O. As a result Rinkenbaugh talked with some of the employees at noon on March 12, 1946, at the parking lot where these employees were eating lunch. He was told by the em- ployees that "there was no one that belonged to any union." He had also inquired at the Regional Office of the Board and was told that no union had been certified for this plant. Rinkenbaugh left some C. I. O. cards with the employees on March 12. He returned to the plant at noon on March 13, collected the cards that had been signed'13 and stood at the door inquiring of the employees as they returned to work whether or not they had joined the C. I. O. One of the men to whom Rinkenbaugh spoke on March 13 identified himself as Foreman Franklin. Rinkenbaugh thereupon told Franklin that he was organizing the C. I. O. According to Rinkenbaugh, he informed Franklin that he had "them all in the union now," and showed Franklin the cards in a group without stating or showing the number of cards. According to Franklin, Rinkenbaugh stated that "I have nine men signed up. We have a majority." There is no evidence that Franklin knew one of the nine was Page who was not in the contract- unit, or that Franklin questioned Rinkenbaugh's majority claim. 12 See Matter of Perfection Spring and Equipment Co, 72 N. L R. B. 590; Matter of Koppers Company, Inc., Wood Preserving Division, 72 N. L R. B 31 11 Rinkenbaugh received C I 0 cards dated March 12, 1946, from 9 employees , Cooper, Ben Dotson , James Dotson, Houser, Layson , Page, Scribano , Clayton Yeager, and Harvey . Yeager . In addition, Askren joined the C. I. 0 on March 16, 1946. All of these employees except Page were in the unit specified in the A. F. of L. contract. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Franklin merely told Rinkenbaugh that he had no authority to discuss such matters, and referred him to Hunter, manager of the plant. Franklin admittedly inquired later that same clay of three employees, Cooper, Layson, and Clayton Yeager, whether they had joined the C. I. 0., and was told by each one that he had. Rinkenbaugh spoke to Hunter a few minutes after his conversation with Franklin. According to Hunter 's testimony- . .. Rinkenbaugh . . . told me that he was a CIO representative and that he had signed up some of our men in the shop and de- manded that I recognize him as a bargaining agent. I told the gentleman that I had no authority whatsoever to bargain with anybody in that respect. He asked me who he should see, and I said he would have to see Mr. Hutinger. Then he asked me if Mr. Hutinger would be down that day and I told him as far as I knew he wouldn't. I didn't know whether he would or not. He then asked me if I could call him and I told him if Mr. Hutinger wasn't able to be down , he wouldn't be able to be called to the phone: He asked me when I would see him, and I told him I would see him that night, and he asked me to convey the informa- tion I had to him .. . Rinkenbaugh claims that he telephoned Hunter later the same day and was told that Hutinger was negotiating a contract with the A. F. of L., and that he telephoned again on the following day, March 14, and was told that a contract had been signed with the A. F. of L. Hunter claims that Rinkenbaugh made only one telephone call, on March 14, during which he told Rinkenbaugh that the contract had been signed . We find it unnecessary to resolve this conflict. In any event, Rinkenbaugh filed a petition for certification with the Board on March 14, 1946' 2. Execution of the March 13, 1946, contract Ashworth testified that he decided late in 1945 that the employ- ment situation had changed sufficiently to warrant enforcement of the closed-shop provision as well as a request for another wage in- crease. According to both Ashworth and Hutinger, they began to discuss these matters in December 1945 . There was a protracted de- lay in their negotiations when Hutinger became ill and had to spend several weeks in a hospital followed by a convalescent period at home. Ashworth made no attempt during these months to enforce the closed shop. Ashworth and Hutinger resumed their negotiations in March 1946. Their discussions dealt almost exclusively with the amount of the FEDERAL-MOGUL CORPORATION 11 wage increase, as to which they could not reach agreement. Agree- ment on a 16 percent increase was finally reached at a meeting in Hutinger's office at the plant on the morning of March 13, 1946, the day on which Rinkenbaugh obtained the cards and presented his claim to Franklin and Hunter. Hutinger testified that while he was in his office negotiating with the A. F. of L., Hunter "was in and out of there, oh, maybe twice." On one of these occasions Hunter gave Hutinger Rinkenbaugh's card. Hutinger testified in this connection that- ... if he [Rinkenbaugh] was from the CIO, it was probably on the card . . . As far as Mr. Rinkenbaugh and the CIO are concerned, he might have come there to buy bearings from all the knowledge I had of his reason for being down there... . Hutinger was then asked, "Well, if a card was presented on your desk, purporting to be from a representative of the CIO, you would be in- terested in that, wouldn't you?" Hutinger replied, "Not particularly, if I already had a contract with the AFL." Hutinger claimed fur- ther that although Franklin also came to his office in the course of the .day, neither Hunter nor Franklin "ever mentioned to me that the CIO was organizing our men or in any other way discussed the CIO with me." When Ashworth returned to the plant after lunch on March 13, ac- companied by A. F. of L. International Representative Stuffiebeam, he brought with him a proposed contract, to which Hutinger agreed. At Ashworth's suggestion, however, they did not sign the contract pend- ing presentation of it to the employees. Accordingly, at about 4:15 p. in., Franklin notified the employees that there was to be a meeting and they were not to leave the plant at 4: 30, the regular closing hour. At 4: 30 the employees were assembled in the shop. Hutinger opened the meeting by introducing Ashworth and Stuffiebeam. He left the meeting shortly after that. Franklin was present throughout the meeting. Following Hutinger's introduction, both Ashworth and Stuffiebeam addressed the employees. There is some conflict in the record as to exactly what transpired at this meeting. Generally, however, the witnesses are in agreement that the meeting was told that the A.'F. of L. had been unable to do much for the employees during the war years, that the respondent had offered the employees a 16 percent wage increase, and that the employees present, when asked to vote on whether or not they would accept this increase, voted unanimously 14 to accept '4 Although some employees did not raise their hands for the affirmative vote, no one raised his hand for the negative vote. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it. They did not -vote to become members of the A. F. of L. or to accept the contract upon which the respondent and the A. F. of L. had reached agreement earlier on the same day.15 Immediately after the meeting the contract was signed by Hutinger and Ashworth. This contract was almost identical with the one signed in 1942. The principal changes were in the sections entitled "Employ- ment" and "Wages." The 1942 contract provided with regard to "Em- ployment" as follows: It is agreed that as a condition of employees [sic] affected by this agreement shall be members in good standing with Local Union No. 447, U. A. W. A., A. F. of L. If new employees are hired, the Company will be given thirty (30) days trial period to approve employees before establishing seniority. After thirty (30) days, seniority shall date from their first employment with the Com- pal ly. The camparable section in the 1946 contract provides as follows : It is agreed.that as a condition of employment all employees af- fected by this agreement shall be members in good standing with Local Union No. 447, U. A. W. A., A. F. of L. It is further agreed when additional employees are required to fill the positions covered by this contract, the Company's repre- sentatives will contact the accredited representatives of Local Union No. 447, U. A. W. A., and if he has a man or men required, who can qualify, they shall be given preference. Employees may be transferred to [sic] one job classification to another for a period of five (5) days, without affecting their wage rate. Should the time'extend beyond the five (5) day period their wages shall be adjusted to fit the classification to which they were transferred. The 1942 contract provided with regard to "Wages" as follows : The minimum rate of pay for new employees hired will be forty- five (45¢) cents per hour for the first three months. The second three months it shall be fifty (500) cents per hour, and the third three months it shall be ____ per hour. is One employee , Schmidt, testified that the employees voted at the March 13 meeting to "accept this wage increase ; also the obligations of the contract to the AFL union, and by doing so , we would become members,of that organization." This was contrary not only to the testimony of other employees who were at the meeting, but also of Franklin and Ashworth . Schmidt's testimony included other statements allegedly made at the meeting which no other witness who was at the meeting recalled . We find Schmidt's testimony unworthy of belief. FEDERAL-MOGUL CORPORATION 13 This section contains a list of 11 names and their respective wage rates ranging from 50 to 75 cents. The comparable section in the 1946 contract provides as follows': The company agrees that all new employees hired shall receive not' less than cents [sic] (100) below the top rate in their clas- sification. At the end of thirty (30) days probationary period they shall receive an increase of five cents (5¢) per hour in their hourly rate. They shall receive an additional increase of five cents (5¢) per hour at the end of the second thirty (30) day period. All employees with seniority employed by the Company, sixty (60) days or more shall receive the same rate of pay for the same classification of work. This section contains a list of 17 names and their respective wage rates ranging from 87 cents to $1.10. On March 14, the day after the contract was executed, Ashworth returned to the plant and proceeded during working hours to obtain signatures to A. F. of L. membership cards, and to collect dues. He signed up 12 employees, including some who had signed A. F. of L. cards in 1942 or 1943. At Ashworth's suggestion, an election for an A. F. of L. steward was held in the plant, at which Franklin was present and observed how the men voted, as he had at the March 13 meeting. On March 18, 1946, the Board informed Hutinger by letter of the C. I. O. petition for certification as the representative of the respond- ent's employees. In a letter dated March 19, 1946, Hutinger replied to the Board in part as follows : We have been under contract with Local $447, U. A. W. A.- A. F. of L. since February 24, 1942. Inasmuch as this contract is still in effect, and so far as I know all our shop employees are members (certainly a majority of them are) it would seem to me that our employees are now represented by the union of their choice. 3. Conclusions The Trial Examiner concluded in his Intermediate Report that the 1946 contract was invalid. Upon our review of the record, we come -to the same conclusion, although not entirely on the same grounds. In the first place, regardless of the extent to which other provisions of the 1942 contract were observed or ignored, it is admitted that the closed-shop provision was disregarded during 1944 and 1945, and 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that during this period there was an almost complete turnover in personnel. Of the 17 employees named in the 1946 contract, only 4, Askren, Cooper," Ben Dotson, and James Dotson, were also named in the 1942 contract. All 4 had, at some time during the period be- tween the signing of the 2 contracts, been away from the respondents' employ for varying lengths of time, during which each of them was in the armed forces or in other employment or both. Furthermore, all 4 of these men joined'the C. I. 0., 3 of them prior to March 13, 1946, and all 4 were subsequently discharged for maintaining their C. I. O. membership, as discussed below. Ashworth named 4 others who were listed in the 1946 contract as having joined the A. F. of L. in 1942 or 1943. All 4 ceased paying dues by January 1944. The remaining 9 employees named in the 1946 contract had not, prior to March 13, 1946, signed A. F. of L. membership cards, paid an A. F. of L. initiation fee or dues, nor, in some cases, been aware of the existence of any A. F. of L. union or contract in the plant. Whether or not the 1942 contract was renewed from year to year, the closed-shop provision having been waived, these 9 employees did not automatically become members of the A. F. of L. Ashworth testified, in fact, that he considered that only 8 out of the 17 were A. F. of L. members prior to the signing of the 1946 contract 17 It is clear, therefore, that the A. F. of L. did not, on March 13, 1946, represent a majority of the employees, and we so find. Nor can the vote at the March 13 meeting be construed as the equivalent of a designation of the A. F. of L. The vote had been on acceptance of the wage increase only. Even if it might be said that the employees had inferentially signified acceptance of the A. F. of L. by acceptance of the wage increase negotiated by the A. F. of L., such a designation would be wholly invalid inasmuch as the meeting was announced during working hours by a foreman, who instructed the employees to remain for the meeting, and the meeting was held in the plant, was addressed by the respondent's district manager, and was attended by a foreman, who admittedly observed how the men voted on the increase. Nor can the respondent, by permitting the wage increase to be thus offered to the employees, legally compel them to vote for acceptance of the increase. That Ashworth did not con- strue the vote as a sufficient designation of the A. F. of L. is indicated by his going to the plant on the following day to obtain signed mem- bership cards. 'B As pointed out in footnote 6, supra, Cooper testified that he had never signed an A F. of L. membership card. "Ashworth testified in this connection that "They could all have been members of my union . . . if 1 had enforced the contract that was in existence." FEDERAL-MOGUL CORPORATION 15 Hutinger was admittedly not concerned with whether or not the men had voted to accept A. F. of L. membership nor with any other evidence of A. F. of L. majority. He assumed that by virtue of the 1942 contract, all individuals who entered his employ automatically became A. F. of L. members, without any action or even knowledge on their part, and, further, that once they became A. F. of L. members, they could never, while in his employ, designate a different represen- tative. He testified that he had never questioned the majority status of the A. F. of L. and would never do so "because we had a contract with the AFL that required all of our employees to be members of that organization, and I took it for granted that they were. If they were not, they shouldn't have been in the shop." Hutinger also testi- fied that "after they would have signed the [1946] contract . . . the Company would live up to it from then on whether the men ratified it or not." The fact that Hutinger made no inquiry regarding the majority status of the A. F. of L. constituted the 1946 contract one with an assisted union without regard to actual majority status, and ren- dered the contract illegal under the proviso to Section 8 (3) of the Act.18 ' The 1946 contract is invalidated also as a result of the C. I. 0. representation claim presented on March 13, 1946, prior to the signing of the contract 19 The respondent and the A. F. of L. maintain that the 1942 contract was automatically renewed on February 24, 1946, and that the C. I. 0. notice was therefore ineffective because it was made at the beginning of a contract period. However, even if we assumed that the 1942 contract had been automatically renewed each year despite the lack of enforcement and the lapse of time, when the respondent and the A. F. of L. entered into negotiations culminating in a new contract, the question concerning representation was thrown open, and the old contract was terminated and did not constitute a bar to the C. I. 0. claim.20 Both the 1942 and the 1946 contracts contain the following provision : 18 See Matter of S. H. Camp - and Company, 52 N. L R B. 1078, enf'd 160 F . ( 2d) 519 (C. C A 6), in which case the Board stated that "the making of such a contract without proper proof of majority is a form of unlawful assistance , and the contract then becomes illegal because made with an unlawfully assisted organization." lU In Matter of French Manufacturing Company, 72 N. L It. B. 1467, where a rival- union claim was made after a contract was reduced to writing but before it was ratified by the employees and signed , the Board confirmed its long-standing policy that "a contract cannot be considered a bar previous to its signing ." Matter of Eieor, Inc., 46 N. L. It. B 1035, Matter of Eagle-Picher Mining and Smelting Company , 71 N L. R. B 333 , Matter of Public Service Corporation of New Jersey, 72 N. If R B. 224 20 See Matter of American Woolen Company, 57 N. L It. B 647 ; Matter of Heat Transfer Products, Inc., 63 N. L . R B. 1124, Matter of Great Bear Logging Company, 59 N L R B 701 ; Matter of Stewartstown Furniture Company, 75 N L. It . B. 344. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event the cost of living increases 10 percent or more after the signing of this agreement, the Employer agrees to open this agreement upon due notice 21 for the adjustment of wages. The respondent and the A. F. of L. maintain that the 1946 agreement was therefore not a new contract but merely a wage amendment to the 1942 contract in accordance with this provision, and that the nego- tiations regarding this amendment could not reopen the representa- tion question. Inasmuch, however, as no notice was given pursuant to the above provision, previous wage adjustments, both individual and general, had been granted without amending the 1942 contract; and the 1946 agreement makes no reference to the 1942 contract but appears on its face to be a new agreement, we find that the document signed on March 13, 1946, constituted a new contract and not an amend- ment to the 1942 contract. The respondent contends that the C. I. 0. claim was ineffective because it was made only to Foreman Franklin and Plant Manager Hunter, and not to Hutinger, the only official at the plant who had been authorized by the respondent to handle labor relations. This conten- tion is without merit. Both Franklin and Hunter had authority to hire and fire, and therefore had authority at least to accept a union claim on behalf of the respondent even if they lacked authority to negotiate a contract. Both Hunter and Franklin were in Hutinger's office on March 13. Whether or not they informed Hutinger of the C. I. 0. claim, it was their duty to do so.22 And if Hutinger, when he was given Rinkenbaugh's card, neglected to ascertain the purpose of his call, he cannot thereby deprive the C. I. 0. of the rights accruing to it by virtue of its timely claim. Furthermore, Hunter deliberately misinformed Rinkenbaugh on March 13 with regard to Hutinger's presence in the plant. The respondent cannot, by restricting to one official the right even to receive a union claim, and by deliberately making such official inaccessible to a union representative, deprive a union of its opportunity to file a claim, and thereby deprive its em- ployees of an opportunity to designate the union of their choice.23 21 It appears from the testimony of the contracting parties that "due notice " was in- terpreted as written notice of "at least thirty ( 30) days," such as was required by the con- tract in the event either party desired to make any change therein. 22 With reference to a letter from the C . I. 0. dated March 14, 1946 , the respondent states in its brief that this letter would not have "reached the Company prior to Maich 12," that "Hutinger testified he received it about March 16 or 17 ," and that "the letter . . was sent to Respondent" [ italics added], although the letter was addressed to Hunter. 23 Matter of United States Rubber Co., 62 N. L R. B 795, on which the respondent relies, is clearly distinguishable from the present case . In that case no official or super- visory employee of the respondent was apprised of the rival -union claim prior to execu- tion of the contract , whereas in the present case both the plant manager and the fore- man were timely notified of such claim. FEDERAL-MOGUL CORPORATION 17 The respondent and the A. F. of L. contend further that Rinken- baugh did not, on March 13, represent or claim to represent a majority of the employees. We find that the preponderance of the evidence clearly demonstrates that he did make such a claim. Neither. Frank= fin nor Hunter told Rinkenbaugh he did not represent a majority. Whether or not Rinkenbaugh claimed to represent a majority, and whether or not he actually did, there is no refutation of the fact that he represented and claimed to represent a substantial number .24 When Rinkenbaugh filed a representation petition with the Board on the following day, the respondent was placed under a duty to await Board action before signing a contract with either of the rival unions.25 Accordingly we find, upon the entire record in this case, that on March 13, 1946, the respondent entered into a written closed-shop contract with the A. F. of L. although at the time the contract was executed the A. F. of L. did not represent an uncoerced majority of the respondent's employees in the unit covered by the contract, and the A. F. of L. was not, at that time, the representative of these em- ployees within the meaning of Section 9 (a) of the Act; that the re- spondent entered into the said closed-shop contract subsequent to the receipt of notice served on the respondent by the C. I. 0. on March 13, 1946, prior to the signing of the contract, that it represented a majority of these employees, and requested the respondent to recognize it as their exclusive representative for the purposes of collective bargaining; that on March 13, 1946, the respondent interrogated its employees concerning their C. I. 0. affiliations; that the respondent urged and persuaded its employees to become and remain members of the A. F. of L.; that the respondent promised and granted wage increases to its employees for the purpose of influencing them to join and assist the A. F. of L.; and that by the aforesaid acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 24 See Matter of Buffalo Arms Corporation, 47 N. L B 1560, in which case the Board stated : The Company argues that since the request of May 19 alleged representation of only a substantial number of its employees, not a majority, it was of no effect. We find, however, that the request of May 19, 1944, was sufficient to put the Company on notice that the contracting union in the plant had an active rival, and thereby to preclude the Company from effectively barring the rival union by entering into a new contract or renewing an old one with the contracting union. 25 If a petition is filed within 10 days after notice of a claim of representation, a con- tract, otherwise valid, which is executed or automatically renewed in the interval, is not a bar General Electric X-Ray Corporation, 67 N L. R. B 997. The C. I 0. petition ..described a larger unit than the one claimed orally by Rinkenbaugh, but this does not alter the fact that the respondent was on notice that there were conflicting claims of representation as to the employees covered by the contract. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The discharges The complaint alleges that on or about March 23, 1946, the respond- ent discharged, and thereafter refused to reinstate, nine of its employees 21 for the reason that they and each of them joined or assisted the C. 1. 0. or engaged in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, and because they refused to join or assist the A. F. of L. The respondent admits, as to eight of these nine employees, that it discharged them on March 23, 1946, and avers, as an affirmative defense, that it was required to do so under the terms of the contract when the A. F. of L. requested their discharge on the ground that they had ceased to be members in good standing of the A. F. of L. The answer states further that the ninth man, Page, was not discharged but voluntarily terminated his employment. 1. The discriminatory discharge of eight employees On Monday, March 19, 1946, the C. I. O. members began wearing C. I. O. buttons openly in the plant while at work. Ashworth was in the plant on March 19 and observed that some employees were wearing C. 1. 0. buttons. He made a list of these employees, and notified them that he would report the matter to the Executive Board of Local 447. Pursuant to instructions from the Executive Board, Ashworth mailed notices to each of the eight employees herein involved and to one other, Wackler, to attend an Executive Board meeting on Friday, March 22. The notice stated in part as follows : I have been informed that you are participating in CIO meet- ing, disregarding the fact that you voted unanimously to accept the adjustment negotiated for you by the A. F. of L . on March 13, 1946. Regardless of whether or not you are present at this meeting, action will be taken concerning your conduct. I am referring to Article V of our present agreement which states "Only members in good standing with Local Union #447, U. A. W. A. may be employed by the Company." Failing to answer these charges' will jeopardize your job with the Federal Mogul Corporation, Kansas City Factory Branch. While Ashworth was at the plant on or about March 22, he calve over to Page while the latter was bent over to sweep up a babbitt, grasped his shoulder, and, according to Page's uncontradicted testi- Re These employees were Askren , Cooper, Ben Dotson, James Dotson, Houser , Layson, Clayton Yeager, Harvey Yeager, and Page. FEDERAL-MOGUL CORPORATION 19 mony, "He said, `I want to see what you got on there,' and I told him it was a `CIO button ...' " Franklin, who was present, testified that he saw Ashworth "stop one of the men and look at his button and I believe it was Mr. Page, and then I saw him talk to several men about it. What he said I really don't know." Wackier was the only employee who attended the Executive Board meeting in response to the written notice. He was exonerated by the Executive Board, which recommended that the eight others who had disregarded the notices be suspended from A. F. of L. membership. On the morning following the meeting, March 23, Ashworth went to the plant, gave Hunter a list of these eight employees, informed him that they had joined the C. 1. 0. and were no longer members in goodstand- ing of the A. F. of L., and requested that they be discharged. Hunter protested that it would be difficult for him to operate the shop if he dis- charged about half his staff, but Ashworth said Hunter had to do so in compliance with the contract. Hutinger testified that Hunter telephoned him that morning, that "It wouldn't have done me any good to object to Hunter. I had some objections, but I did tell Mr. Hunter that-just this, that we were bound by the terms of the contract to terminate anyone that wasn't acceptable to the union, and that he should go ahead and terminate the people, and that whatever letter he gave them should be dictated by the man from the union." Hutinger admitted there was no threat of a strike. During that morning Ashworth went to the men who were wearing C. I. O. buttons and told them that all those wearing C. I. O. buttons were through. The men continued with their work. A little later Ashworth c.ime to Layson's machine accompanied by Hunter and again told Layson he was through. When Layson protested and asked Hun- ter if his work was not satisfactory, Hunter agreed that it was. Lay- son resumed his work, but Hunter told him. "... the AFL rep- resents us. I guess this is it." Layson said "Okay" and stopped work- ing. When he'noticed that some of the other men involved had con- tinued working, he spoke to Franklin, who was a friend of his, and said, "Jim, if we are fired, call the boys together and tell them." Franklin agreed to do so, and when the group of men had assembled, he confirmed Ashworth's statement that all the men wearing C. I. O. buttons were discharged. While Franklin was addressing the men, Page, who was present, interrupted to urge that the men insist upon getting a letter stating the reason for their discharge. Franklin be- came irate at these interruptions, threatened Page, and finally struck him. Page seized a rod and threatened to use it if Franklin attacked him again, but Layson intervened and stopped the fight. 781902-48-voL 76-8 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above incidents concluded at about 11 o'clock. Hunter informed the men that they would have to wait until about noon before their checks would be ready. In the interval the men changed their clothes and prepared to leave. Franklin informed the men when their checks were ready. When they went to the office for their checks, each of them (except Page, whose termination is further discussed below) found a letter attached to his check, signed by Hunter, stating that the man was "terminated by the request of the American Federation of Labor, with whom we have a contract. This action is being taken inasmuch as the contract states that only members of Local 447 of the A. F. of L. may be employed by the Kansas City Branch of Federal- Mogul." 2. Conclusions As found above, the contract of March 13, 1946, with the A. F. of L., upon which the respondent relies to justify its discharge of the eight C. I. O. members, was invalid. The respondent therefore had no right on March 23,1946, to require that its employees belong to the A. F. of L. or to discharge them for joining the C. I. O. and wearing C. I. O. buttons. Accordingly, we conclude that on March 23, 1946, Askren, Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, and Harvey Yeager were discharged because they had joined and assisted the C. I. O. and had refused to join the A. F. of L., and that the respondent thereby discriminated with respect to hire and tenure of employment, discouraged membership in the C. I. 0., en- couraged membership in the A. F. of L., and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The termination of Earnest Page Page had been employed by the respondent as janitor and fireman for approximately 5 months before March 23, 1946, when his employ- ment terminated. Page was not included within the coverage of the March 13, 1946, bargaining contract between the respondent and the A. F. of L. However, he was active in the C. I. O. organizational cam- paign and joined the C. I. O. on March 12, 1946. Page was present at the March 13, 1946, meeting at which the respondent's employees voted to accept a 16 percent wage increase. He did not sign an A. F. of L. membership card on March 14, X946, as did 12 other em- ployees. Because he was not covered by the contract, the A. F. of L did not request Page to appear before its Executive Board, as it did the other employees suspected of pro-C. I. O. activity, and did not request the respondent to discharge him. FEDERAL-MOGUL CORPORATION 21 On March 22, 1946, according to Page, he was wearing a C. 1.'0. button while at work when Ashworth came up to him, caught hold of his shoulder and said, "I want to see what you got on there." Page told him it was a C. I. O. button and asked Ashworth if he wanted it. Ashworth replied in the negative.27 The following day, March 23, the respondent discharged the eight employees previously named. Page described the relevant events of that day as follows : "Well, I seen Mr. Ashworth come in and Mr. Charlie Hunter talking to Mr. Layson, and I overheard Mr. Ashworth tell Layson to shut the machine off and Mr. Layson said, `Who are you to tell me to shut the machine off?' and Charley Hunter spoke up and said, `He represents us, so I guess you will have to shut it off.' So then Carl [Layson] shut the machine off and called Jim Franklin up and told him to call all of the fellows together that was fired and tell them, so Jim Franklin did call all the fellows with the CIO buttons on together, and I was with the group. I had a button on . . . and he told then, he said, `All you men with CIO buttons on are fired,' so I spoke up and I says, `Men, don't forget to make them give us a letter stating why we are fired.' Jim Franklin said to me, `You shut up. Get out of this or I'll throw you out,' and I said, `I don't have to shut up.' So he struck me and then gave me two big shoves against a bench. I grabbed this rod and drawed it on him and told him not to come another step or I would let him have it. So one of the boys said, `Watch your step, Jim,' and -that was all there was to it, and I laid the rod back down and we went on washed up." 28 Following their discharge, the discharged employees were told by Branch Manager Hunter that they would have to wait until noon to obtain their final pay checks. Page testified as follows as to what happened next: "Well, when it came about noon, why, I think Jim Franklin come back and told us that our checks was ready, so we all went to the office . . . They all got their checks and come to mine. I didn't see no letter so I said, `Where is my letters?' and the girl in the office says, 'You haven't got any.' I said, `I don't see why. I got 27 Apparently, Foreman Franklin witnessed this incident. 28 Foreman Franklin, although called as a witness, did not deny Page's description of the altercation between the two. Page's testimony as to this incident is, therefore, cred- ited Franklin did deny saying that all men wearing C. I. O. buttons were fired. He admitted . . . telling the group of which Page was a part, "Boys, I guess this is it. Ac- cording to Mr. Ashworth, you are fired " Whether Franklin made the statement in the phraseology attributed to him by Page or as he himself described it, the effect was the same Hence, we find it unnecessary to resolve this conflict in testimony. FEDERAL-MOGUL CORPORATION 21 On March 22, 1946, according to Page, he was wearing a C. I.' O. button while at work when Ashworth came up to him, caught hold of his shoulder and said, "I want to see what you got on there." Page told him it was a C. I. O. button and asked Ashworth if he wanted it. Ashworth replied in the negative.'? The following day, March 23, the respondent discharged the eight employees previously named. Page described the relevant events of that day as follows : "Well, I seen Mr. Ashworth come in and Mr. Charlie Hunter talking to Mr. Layson, and I overheard Mr. Ashworth tell Layson to shut the machine off and Mr. Layson said, `Who are you to tell me to shut the machine off ?' and Charley Hunter spoke up and said, `He represents us, so I guess you will have to shut it off.' So then Carl [Layson] shut the machine off and called Jim Franklin up and told him to call all of the fellows together that was fired and tell them, so Jim Franklin did call all the fellows with the CIO buttons on together, and I was with the group. I had a button on . . . and he told them, he said, `All you men with CIO buttons on are fired,' so I spoke up and I says, `Men, don't forget to make them give us a letter stating why we are fired.' Jim Franklin said to me, `You shut up. Get out of this or I'll throw you out,' and I said, `I don't have to shut up.' So he struck me and then gave me two big shoves against a bench. I grabbed this rod and drawed it on him and told him not to come another step or I would let him have it. So one of the boys said, `Watch your step, Jim,' and-that was all there was to it, and I laid the rod back down and we went,on washed up.'' 211 Following their discharge, the discharged employees were told by Branch Manager Hunter that they would have to wait until noon to obtain their final pay checks. Page testified as follows as to what happened next: "Well, when it came about noon, why, I think Jim Franklin come back and told us that our checks was ready, so we all went to the office . . . They all got their checks and come to mine. I didn't see no letter so I said, `Where is my letters?' and the girl in the office says, 'You haven't got any.' I said, `I don't see why. I got 27 Apparently , Foreman Franklin witnessed this incident. 28 Foreman Franklin , although called as a witness , did not deny Page's description of the altercation between the two Page's testimony as to this incident is, therefore, cred- ited Franklin did deny saying that all men wearing C. I. O. buttons were tired. He admitted . . . telling the group of which Page was a part, "Boys , I guess this is it. Ac- cording to Mr. Ashworth , you are fired " Whether Franklin made the statement in the phraseology attributed to him by Page or as he himself described it, the effect was the same Hence, we find it unnecessary to resolve this conflict in testimony. FEDERAL-MOGUL CORPORATION 23 After Hunter had refused to give Page a letter stating that he had been discharged, Page left the plant refusing to accept his check. On the following Monday, Page returned to the plant to accept his check which he had previously refused. No discharge letter was given to him. Page was clearly in a position different from that of the eight em- ployees who were admittedly discharged. - The A. F. of L. had not requested his discharge and, so far as appears from the record, the respondent did not desire to terminate his employment. Whatever misunderstanding as to his status may have been unintentionally created in Page's mind by the events on the morning of March 23, 1946, was dispelled, or should have been dispelled in the mind of any rea- sonable man, by Hunter's statement to Page shortly afterward that the latter had not been discharged and by Hunter's refusal to furnish Page with a discharge letter. Instead of accepting Hunter's state- ment and returning to work, Page persisted in his demand for a letter stating that he had been discharged. It is our conclusion from his conduct that Page had identified him- self with his fellow union members and wanted to be discharged as they had been discharged, and that he therefore apparently closed his mind to all indications that he was not in the same category as the eight other C. I. O. adherents, and particularly, closed it to Hunter's statement that he had not been discharged. Hence, Page must himself accept the responsibility for the termination of his employment. We find, contrary to the Trial Examiner, that.the respondent did not dis- charge Earnest Page on March 23, 1946, and did not thereafter dis- criminatorily refuse to reinstate him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities oftlie respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I. above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, and in conformity with the requirements of the amended Act. We have found that the respondent unlawfully assisted the A. F. of L. and discouraged membership in the C. I. O. by entering into 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an invalid closed-shop contract with the A. F. of L. Obviously, a free selection of a bargaining representative cannot be made where recognition and a contract has been accorded to one of two competing unions. We shall therefore order that the respondent cease and desist from recognizing the A. F. of L. as the exclusive bargaining representative of its employees unless and until it shall have been certified as such by the Board. As the closed-shop contract of March 13, 1946, perpetuates the respondent's unlawful assistance to the A. F. of L. and precludes the employees for its indefinite duration from exercising their right to select a bargaining representative of their own free choice, we shall further order that the respondent cease giving effect to that contract, or to any extension, renewal, modifica- tion, or supplement thereof, unless and until the A. F. of L. shall have been certified by the Board as the exclusive representative of its em ployees in an appropriate unit. Nothing herein, however, shall be construed as requiring the respondent to vary those wages, hours, seniority, or other such substantive features of its relations with the employees themselves, which the respondent has established in the performance of the said contract, or of any extension, renewal, modifi- cation, or supplement thereof, or to prejudice the assertion by the Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, We have also found that the respondent discriminated in regard to the hire and tenure of employment of Charles Askren, Charles Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, and Harvey Yeager, because they had joined and assisted the C. I. O. and refused to join the A. F. of L. We shall therefore order that the respondent offer them immediate and full reinstatement to their for- mer or substantially, equivalent positions,30 without prejudice to their seniority or other rights and privileges. We shall also order that the respondent make them whole for any loss of pay they may have suf- fered by_ reason of their discriminatory discharges, by payment to each of them of a sum of money equal to the amount he would normally have earned as wages during the period from March 23, 1946, to the date of the respondent's offer of reinstatement, less his net earnings 31 during such period. "In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position whenever 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 81 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsew :ere than for the respondent , which would not have been incurred but for his unlaw- ful discharge and the consequent necessity of 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 fis earnings. See Republic Steel Corporation v. N. L. It. B , 311 U. S. 7. FEDERAL-MOGUL CORPORATION 25 Upon the entire record in the case, we are of the opinion that the respondent, by the coercive course of conduct heretofore found, and particularly by the execution of an invalid contract and by the illegal discharges, has displayed an attitude of opposition to the purposes of the Act. Because of the respondent's unlawful conduct, and the - underlying purpose manifested thereby, we are convinced that the unfair labor practices which it has committed are persuasively related to the other unfair labor practices proscribed by the Act and by the amended Act, and that danger of the commission in the future of any or all of the employer unfair labor practices listed in the amended Act is to be anticipated from the respondent's conduct in the past. Unless the order is coextensive with the threat, the preventive purpose of the Act 32 and of the amended Act will be defeated. We shall there- fore order that the respondent cease and desist not only from the unfair labor practices found herein, but also from in any manner infringing upon the rights guaranteed in Section 7 of the Act and of the amended Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO), and International Union, United Automobile Workers of America, A. F. of L., are labor organizations, 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 Charles Askren, Charles Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, and Harvey Yeager, 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, A. F. of L., 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. ffi N. L. R B. v. Express Publishing Company, 312 U. S. 426; May Department Stores Co. v. N. L. R. B., 326 U. S. 376. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, in connection with the separa- tion of Earnest Page from its employ. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Federal-Mogul Corporation, Federal-Mogul Serv- ice Division, Kansas City, Missouri, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Recognizing International Union, United Automobile Workers of America, A. F. of L., as the exclusive representative of the produc- tion employees at its Kansas City, Missouri, plant, for the purposes of collective bargaining unless and until said organization shall have been, certified by the National Labor Relations Board as the exclusive repre- sentative of such employees ; (b) Giving effect to its contract dated March 13, 1946, with Interna- tional Union, United Automobile Workers of America, A. F. of L., or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with that labor organization, unless and until said organization shall have been certified by the Board as the repre- sentative of the production employees at its Kansas City, Missouri, plant; (c) Discouraging membership in International Union, United Automobile, Aircraft and Agricu1tural 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, A. F. of L., 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 and tenure of employment or any term or condition of their employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Auto- mobile, 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 con- certed activities for the purpose of collective bargaining or mutual aid or protection as guaranteed in Section 7 of the Act and- of the amended Act. FEDERAL-MOGUL CORPORATION 27 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act and of the amended Act : (a) Withdraw and withhold all recognition from International Union, United Automobile Workers of America, A. F. of L., as the exclusive representative of its production employees at its plant in Kansas City, Missouri, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, unless and until said organization shall have been certified by the National Labor Relations Board as the representa- tive of such employees; (b) Offer to Charles Askren, Charles Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, and Harvey Yeager, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights or privileges; (c) Make whole Charles Askren, Charles Cooper, Ben Dotson, James Dotson, Carl Houser, Carl Layson, Clayton Yeager, and Harvey Yeager, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from March 23, 1946, the date of the discriminatory discharges, to the date of the respondent's offer of reinstatement, less his net earnings during such period. (d) Post in its plant at Kansas City, Missouri, copies of the notice attached hereto, marked "Appendix A." 33 Copies of said notice, to be furnished by the Regional Director for the Seventeenth 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 Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein, insofar as it alleges that the respondent discriminated against Earnest Page, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. "In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted , before the words "A Decision and Order," the words : "A Decree of The United States Circuit Court of Appeals Enforcing. ' 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS HOUSTON and MURDOCK, dissenting in part : We concur in the decision of the majority in all respects other than the finding that the respondent did not discriminate with regard to the hire and tenure of employment of Earnest Page. The unit set forth in the contract consisted of "all the plant em- ployees engaged in the manufacturing and servicing of bearings and parts except all clerical and warehouse help," and the names of all employees covered were listed in the contract. Page, who was a maintenance employee, was not named in the contract. Thus, as the majority opinion points out, Page was not included in the contractual unit. There is, however, no evidence that Page was aware of his ex- clusion. Like most of the employees in the plant, Page had never seen the contract in which the unit was set forth. Page had been hired by Hunter, and received instructions from Hunter and Franklin, who also supervised all the employees who were included in the contractual unit. Furthermore, Page was in the group that was called together by Franklin for the meeting in the plant on March 13, and Page received the 16 per cent increase when the employees in the unit did. Franklin admitted that he observed Ashworth, on about March 22, stop Page at his work and comment upon his C. I. 0. button. He ad- mitted also that Page was one of the group of employees to whom the announcement was made, on March 23, that all the men wearing C. 1. 0. buttons were discharged. Nevertheless Franklin, who was present at the March 13 meeting, did not inform Page that he, Page, was not concerned with the subject-matter of that meeting; did not, on March 22, inform Ashworth that Page was free to wear a C. I. 0. button; and did not, on March 23, point out that the announcement of the discharge of all those wearing C. I. 0. buttons was inapplicable to Page, although he was well aware of Page's presence since it was during that incident that he became so incensed at Page's demand that the dischargees receive dismissal letters that he threatened Page and struck him. Hunter testified that when he learned' on March 23 that Page had changed his clothes and was leaving with the others,34 he got Page's card and had his check prepared. Like Franklin, Hunter did not see fit to inform Page that he was not affected by the discharges de- manded by the A. F. of L. Hunter testified further that no dismissal letter such as the other dischargees received was attached to Page's check "because he was not fired under any conditions that was existing at that time." 84 Page denied , on cross-examination by the respondent , that he had any conversation with Hunter in which, as Hunter testified , Page said he had changed his clothes because he was "leaving with the rest of them " Page also denied the conversation with Hunter referred to in footnote 29 above. We credit Page's denials. Hunter's deliberate deception of Rinkenbadigh on -March 13, 1946, with respect to Hutinger 's presence in the plant, discussed in Section B (1) and (3) above, casts doubt upon Hunter's credibility. FEDERAL- MOGUL CORPORATION 29 When the dischargees went to the office for their checks, Page noticed that his was the only one that did not have a dismissal letter attached to it. In the course of Page's inquiries as to why no such letter was attached to his check , Hunter stated, according to his testimony, as cor- roborated by Layson , that "we are not terminating you." When Page, who had been given ample reason to believe that he had been discharged with the others wearing C . I. 0. buttons , requested an explanation, Hunter did not explain , as was clearly his obligation under the cir- cumstances , that since Page was not included in the contractual unit, there was no prohibition against his wearing a C. I. 0. button, and he had therefore not been discharged with the others for wearing C. I. 0. buttons. Instead Hunter merely stated that the only letter he could give Page was "unsatisfactory labor." Page's testimony was forthright and convincing, was corroborated by other witnesses , and was credited by the Trial Examiner. Page's account of the conversation with Hunter, set forth in the majority opin- ion, contains no reference to Hunter 's remark that Page was not being terminated. We are convinced, from all the testimony, that this was not a deliberate or dishonest omission , but that Page was unaware that a remark of that tenor had been made. The majority opinion states: "Whatever misunderstanding as to his status may have been uninten- tionally created in Page's mind by the events of the morning of March 23, 1946, was dispelled , or should have been dispelled in the mind of any reasonable man, by Hunter 's statement to Page shortly afterward that the latter had not been discharged and by Hunter's refusal to furnish Page with a discharge letter. " What had occurred immedi- ately preceding Hunter's statement, however, including the announce- ment to the group wearing C. 1. 0. buttons , of whom Page was one, that all those wearing C . 1. 0. buttons were discharged , as well as Franklin's threats against and physical assault upon Page, were sufficient to affect the understanding of "any reasonable man." Under all the circum- stances, a clear duty devolved upon the respondent, which it did not meet, to mare it clear to Page beyond any doubt that Franklin's appar- ent discharge of Page did not constitute an actuil discharge. Accord- ingly, although Page was not included in the list of employees whose discharge was demanded by the A. F. of L ., and so, in Hunter's words, "was not fired under any conditions that was existing at that time," we are convinced that the respondent , on the basis of a misunderstand- ing which it had created and had not dispelled, seized the opportunity to rid the plant of the only remaining employee who was a C. I. 0. adherent. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, and of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT recognize International Union, United Automo- bile Workers of America, A. F. of L., as the exclusive representa- tive of any of our employees at our Kansas City, Missouri, plant, for the purpose of collective bargaining unless and until said organization shall have been certified by the National Labor Rela- tions Board as the exclusive representative of our employees. WE WILL NOT give effect to our contract dated Mareh 13, 1946, with International Union, United Automobile Workers of Amer- ica, A. F. of L., or to any extension, renewal, modification, or sup- plement thereof, or to any superseding contract with that labor organization, unless and until said organization shall have been certified by the National Labor Relations Board as the exclusive representative of our employees at our Kansas City, Missouri, plant. AVE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or other rights or privi- leges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Charles Askren Carl Houser Charles Cooper Carl Layson Ben Dotson Clayton Yeager James Dotson Harvey Yeager WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICUII[URAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other labor organiza- tioxi. 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. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition FEDERAL-MOGUL CORPORATION 31 of employment against any employee because of membership in or activity on behalf of any such labor organization. FEDERAL-MOGUL CORPORATION, FEDERAL-MOGUL SERVICE DIVISION, Employer. Dated ------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.