Wood Parts, Inc.

WOOD PARTS, INC. 445 since 1950, following the present Intervenor's defeat of the Petitioner in a Board election in the industrial unit,"' has the Petitioner seen fit to question its appropriateness. I do not believe that the Government of the United States should lend a helping hand when so drastic a change of position is for the evident purpose of recouping losses on the installment plan. 11 Westinghouse Electric Corporation , 89 NLRB 8. WOOD PARTS, INC. and L. D. VINCENT and LOCAL 894, UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L. WOOD PARTS, INC. and HARRY L. CURTIS LOCAL 894, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L. and L. D. VINCENT WooD PARTS, INC. and MILFORD FREY. Cases Nos. 7-CA-390, 7-CA- 440, 7-CB-76, and 7-CA-46f. November 01, 1952 Decision and Order On December 7,1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent Company, Respondent Union, and the General Counsel filed excep- tions to the Intermediate Report' The Board has reviewed 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 the entire record in the case, and hereby adopts the findings, conclusions, and recommendations. of the Trial Examiner, with the following exceptions, additions, and modifications : 1. The charges in this case were filed by L. D. Vincent, Harry L. Curtis, and Milford Frey. The Respondents contend that Vincent was an agent of or a "front" for the United Mine Workers of America, an organization which is not in compliance with Section 9 (f), (g), and (h) of the Act, and that therefore a complaint should not have ' The Respondents' request for oral argument is hereby denied because the record and the exceptions, In our opinion, adequately present the issues and positions of the parties. 101 NLRB No. 93. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued on his Section 8 (a) (1) and (3) charges against the Respond- ent Company and his Section 8 (b) (1) (A) and (2) charges against the Respondent Union. The Trial Examiner found no merit to this contention, because in his view the noncomplying status of the United Mine Workers resulted only in depriving that organization of the privilege of availing itself of the Board's processes, but individual employees were not precluded from the benefits of the Board's reme- dial powers because they preferred the Mine Workers over the Respondent Carpenters Union. We agree with the Trial Examiner that individual employees are not to be deprived of the benefits of the Act merely because they happen to prefer a noncomplying labor organization over a complying one. However, in our opinion the controlling question here is whether Vincent, in filing the charges on behalf of himself and others, was acting as an individual seeking redress for violations of the Act by the Respondents directed against him and other employees, or was acting as a representative of the noncomplying union so that his charges were merely a device whereby the union could avoid complying and yet seek by subterfuge to reap the benefits of the Act. This presents a question of fact which must be determined by an appraisal of all the evidence in light of the circumstances then existing. L. D. Vincent was on the payroll of the noncomplying United Mine Workers as a field representative from February 1943 to April 1947, immediately preceding his employment by the Respondent Company. In 1948 he became president of the Respondent Carpenters Local Union at the Respondent Company's plant. At some time before or during January 1950, Vincent while still president became the leader of a group of employee members of the Respondent Local Union who were dissatisfied with its international body. He ad- vocated that the Local disaffiliate from the Carpenters and become affiliated with District 50 of the United Mine Workers. At a meeting of the officers and stewards of the Respondent Local Union on January 23, 1950, a motion was passed to recommend to the membership that the Local disaffiliate from the Carpenters and become a local of the United Mine Workers. On January 26, 1950, a general membership meeting of the Respondent Local Union was held with Vincent presiding, at which the recommendation to sever the connection of the Local with the Carpenters was adopted. On January 31, 1950, the Respondent Carpenters Local, on instructions from its international office, held a special meeting and suspended its local officers. After receiving a letter from the Respondent Carpenters notifying it of the suspension of the Local officers, the Company laid off some WOOD PARTS, INC. 447 of them.2 Vincent was laid off on January 31, 1950. After being laid off by the Company, Vincent was put back on the United Mine Workers' payroll during periods between March and August 1950. Meanwhile, on or about February 6, 1950, Vincent filed a decertifi- cation petition in Case No. 7-RD-68, alleging that the Respondent Union was no longer the bargaining representative of the employees of the Respondent Company. On February 13, 1950, Vincent filed a charge on behalf of himself and others and on April 3, 1950, an amended charge in the instant case. In our opinion, it stretches credulity to the breaking point to be- lieve that Vincent did not file the charges on behalf of the United Mine Workers, when before, after, and even on the day he filed his amended charge, he was not only its chief active protagonist, but also a paid field representative of that organization 3 Even though Vincent coincidentally could have had a personal interest in filing the charges, to seek redress for alleged discrimination against him- self and others by the Respondents, it would be naive to presume that this was the only purpose of his action or even that it was his princi- pal one where, as here, the facts point irresistibly to an entirely dif- ferent reason. The circumstances in this case call for the conclusion that when Vincent filed the charges he was acting as an agent or "front" for the United Mine Workers, which was the real party in interest.' As the noncomplying Mine Workers was in fact the charg- ing party, we shall dismiss the complaint to the extent that it is based upon Vincent's Section 8 (a) (1) and (3), and 8 (b) (1) (A) and (2) charges.5 2. Pursuant to Vincent's decertification petition in Case No. 7-RD- 68, the Board on May 8, 1950, held a hearing and on June 26, 1950, issued a Decision and Direction of Election. An election was held on July 18, 1950, which was won by the Respondent Union. On or about July 20, 1950, Vincent filed objections to the election, copies of which were not served upon the Respondent Company and Re- spondent Union as required by Section 102.61 of the Board' s Rules and Regulations. On October 19, 1950, the Regional Director issued a report on objections, finding merit in Vincent's objections and rec- ommending that the election of July 18 be set aside. On November 6, 1950, the Board issued its Supplemental Decision and Order in Case No. 7-RD-68, adopting the findings and recommendations in the Regional Director's report, and noting that no exceptions had 2 The General Counsel made no contention that these layoffs constituted discrimination by the Company 6 N L. R. B. v. Alssde, Inc., 192 F. 2d 678 (C. A. 6). 4 N. L. B B v. Happ Bros. Co , 192 F. 2d 678 (C. A. 5) ; see also footnote 3, supra. 6 This action has no effect on the charges of Curtis and Frey, as the Respondents do not specifically claim , and the record would not support a contention , that they were also "fronts" for the Mine Workers. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been filed thereto. We therefore ordered the election of July 18, 1950, set aside.6 Meanwhile, the Respondent Company and Respondent Union had entered into contracts-on June 15, 1950, before the Board's Decision, and on July 28, 1950, after the election, but before it was set aside. The Trial Examiner, citing Midwest Piping 7 as his authority, found that the Company, by entering into or renewing an agreement with the Respondent Union on June 15, 1950, especially a contract which required membership in that union as a condition of employ- ment with the Company, "elected to disregard the orderly representa- tion procedure set up by the Board under the Act" and "to arrogate to itself the resolution of the representation dispute" in favor of the Respondent Union, and thereby violated Section 8 (a) (2) of the Act. He further found that the Company violated Section 8 (a) (2) by the execution of the July 28, 1950, agreement. We find it unnecessary to pass upon the merits of the Trial Exam- iner's findings because we hold that the entire decertification proceed- ing arose out of and was part of Vincent's activities on behalf of the United Mine Workers, and was initiated for the sole purpose of bene- fiting the Mine Workers by attempting to unseat the incumbent Re- spondent Union. Considering the question in this posture, we conclude that, as the proceeding was instituted by a "front" for a noncomplying union, it was void ab initio ii Therefore, no real ques- tion concerning representation existed at the times the Respondents entered into their contracts so that their conduct was not violative of the Act. 3. The Trial Examiner held violative of Section 8 (a) (2) the conduct of the Respondent Company in cosponsoring, with the Re- spondent Union, a meeting the day before the decertification election in Case No. 7-RD-68. While under ordinary circumstances we would be disposed to agree with the Trial Examiner's finding, we believe that it would be inequitable to find a violation here, where it is so clear that, but for the institution of the void decertification pro- ceeding by Vincent, the situation never would have arisen. Accord- ingly, we shall reverse this finding of the Trial Examiner. The Trial Examiner found that statements made by the Respond- ent Union's representatives at this meeting constituted violations of A The Board was not aware that copies of the objections had not been served upon the Respondents. Had it been, the Board would presumably not have set the election aside. See National Carbon Company, Division of Union Carbide and Carbon Corporation, 99 NLRB 774. 7 Midwest Piping and Supply Co., Inc., 63 NLRB 1060. ! This "fronting" issue was originally raised in the decertification proceeding , but the Board law at that time precluded litigation of the issue in such a proceeding . However. since then the Board has pursued a contrary policy and now passes upon such an issue when raised in a decertification proceeding. Knife River Coal Mining Company, 91 NLRB 176; see also, Hammond Bag & Paper Company, 94 NLRB 905. WOOD PARTS, INC. 44 Section 8 (b) (1) (A) by that Union. Because we are dismissing the complaint insofar as it is based upon Vincent's charges, and his charges alone allege violations of Section 8 (b) (1) (A), we shall not pass upon whether the conduct was violative of this section. The Trial Examiner found that Superintendent Sweet engaged in surveillance of a meeting held by the proponents of the decertifica- tion petition in Case No. 7-RD-68. It appears that Sweet' s car was parked about 200 or 300 feet from the hall at the time the meeting was being held. While Sweet's presence at this particular time and place is open to suspicion, we do not believe that the evidence is sufficient to establish that Sweet engaged in surveillance. Accordingly, we disagree with the Trial Examiner and find that the Respondent Com- pany did not violate Section 8 (a) (1) and (2) of the Act by Sweet's conduct. 4. The General Counsel contends that the contracts between the Respondents contain an illegal union-security clause and that the par- ties, by enforcing such provision, violated Section 8 (a) (3) and Section 8 (b) (2), respectively. The union-security clause in force between the Respondents at all times material herein was as follows : The party of the first part agrees to recognize the Union as the sole and exclusive bargaining agency for all employees eli- gible to membership in the Union and further agrees to employ only such members of the Union who are in good standing with the Union or those who signify their intention to become mem- bers by signing application for membership immediately upon being employed. It is understood, however, that new employees may be considered on probation for a period of thirty days and upon completion of the thirty day probationary (sic) they shall pay the required fee and be initiated as members of Local Union #894 at the next regular meeting of the Local Union. Employ- ees failing to comply with this ruling shall be subject to dismissal. The Trial Examiner found that the union-security clause was valid under the Act. We agree with the Trial Examiner's reasoning re- garding the effect of this clause upon new employees. As pointed out by him, the clause is ambiguous and requires an examination of the practice of the parties in order to ascertain how it was construed and applied by them. The undisputed evidence in the record reveals that the parties interpreted the clause as providing that membership in the Respondent Union was a condition of continued employment by the Company, after a new employee completed a probationary period of 30 days in the Company's employ. Therefore, we find, as did the Trial Examiner, that in this respect the clause was not invalid. However, the question remains as to the effect, if any, of the clause upon old employees who were not members of the union on the effec- 450 DEC. lIONS OF NATIONAL LABOR RELATIONS BOARD tive date of the contract. We have held that a clause which does not accord a 30-day grace period from the effective date of the contract to those employees who were not already members of the Union on that date provides for a form of union security in excess of that permitted by Section 8 (a) (3).a We believe that the intent of the parties as manifested in the lan- guage of the clause was to cover only new employees. Thus, nowhere in it is reference made to old employees. The clause speaks in terms of the Company "agrees to employ" and "new employees may be con- sidered on probation." We interpret the clause as referring only to new employees, and accordingly we find that it is not invalid under Section 8 (a) (3) of the Act. As there is no clause in the contract applicable to old nonmembers of the Union, they could not be dis- charged for failing to join the Union without the parties to the con- tract violating the Act. 5. The Trial Examiner found that the Respondent Company, by its failure to put Vincent and Welsh back to work and by its failure at all times thereafter to reinstate them to its employ, violated Section 8 (a) (1), (2), and (3) of the Act. He also found that the Respond- ent Union, by demanding that the Company refuse to reinstate Vin- cent, Teets,"O and Welsh and by bringing economic pressure to bear on the Company and the employees in support of these demands, vio- lated Section 8 (b) (1) (A) and (2) of the Act. Because we are dismissing the complaint to the extent that it is based upon Vincent's charges and because his charges, which were filed on his own behalf and that of employees Welsh and Teets, alone allege violations of Section 8 (a) (1) and (3) by the Respondent Company against these three employees and violations of Section 8 (b) (1) (A) and (2) by the Respondent Union, we shall not pass upon the question of whether this conduct of the Respondents was violative of the Act. We find, as did the Trial Examiner, that the discharges of employ- ees Knapp, Valley, and Curtis on May 19, 1950, constituted discrimi- nation against them by the Company, in regard to their hire and tenure of employment, to encourage membership in the Respondent Union; that this discrimination interfered with, restrained, and coerced the employees of the Company in the exercise of their rights under the Act; that the Company by such conduct assisted, encour- aged, and supported the Respondent Union; and that by the afore- said conduct, the Respondent Company engaged in unfair labor prac- tices within the meaning of Section 8 (a) (3), (1), and (2) of the Act. Our concurrence in the Trial Examiner's findings is based upon those allegations in the complaint which are premised upon the valid 0 Heekin Can Company, 97 NLRB 783; Charles A. Krause Milling Co., 97 NLRB 536. 11 In view of Teet's failure to report on two occasions to the plant ready to work when recalled, the Trial Examiner did not find that the Company refused to reinstate him. WOOD PARTS, INC. 451 charges of Curtis, and which were made on his behalf and that of Val- ley and Knapp " The Trial Examiner further found that the Respondent Union, by demanding that the Respondent Company discharge Knapp, Val- ley, and Curtis because they were no longer members in good standing of the Respondent Union as a result of their failure to pay the fines assessed upon them by the Union, violated Section 8 (b) (1) (A) and (2) of the Act. However, as the allegations in the complaint of vio- lations by the Respondent Union of Section 8 (b) (1) (A) and (2) are based only upon Vincent's charges and we are dismissing those portions of the complaint, we are unable to find any such violations by the Respondent Union. 6. The Trial Examiner found, and we agree, that the Respondent Company violated Section 8 (a) (1) and (3) of the Act by discharg- ing Milford William Frey because he participated in the origination and circulation of a petition requesting that crew leader Trowbridge be transferred to another shift, and that the crew leader of the latter be brought in to replace Trowbridge. It is clear, as found by the Trial Examiner, that Frey's discharge was occasioned solely by his activity in connection with the petition and not by any of the alleged deficiencies in his work. It is likewise clear from the record that Frey's conduct constituted action which was initiated and carried out in concert with other employees, and was prompted by the fact that Frey, like other employees in the crew, considered Trowbridge to be an objectionable crew leader; that this was not a case of an individual employee venting some personal spleen against a superior by persuad- ing other employees to join with him in seeking the superior's re- moval ; 12 that it was rather an instance of a group of employees, all having common grievances against their superior, seeking to have him transferred; and that this was reasonable and temperate conduct by employees who had a real cause for concern, and was within the scope of the kind of concerted activity protected by the Act. 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, Wood Parts, Inc., Cadillac, Michigan, its officers, agents, successors, and assigns, shall : 11 Although Curtis filed charges alleging violations of Section 8 (a) (1) and ( 3)i of the Act only, the General Counsel properly enlarged upon Curtis' charges in the complaint by including an 8 (a ) ( 2) allegation . Our finding that the Respondent violated Section 8 (a) (2) is based upon the well -established rule that the Board may premise an unfair labor practice finding upon any conduct occurring within the 6-month period prior to the filing of a charge , even though the charge itself does not specify such conduct as a viola- tion of the Act. Set en Up Bottling Co of Miami . Inc, 92 NLRB 1622; Cathey Lumber Company, 86 NLRB 157 12 Cf Joanna. Cotton Mills Co v N. L. R. B, 176 F 2d 749 (C. A. 4). 242305--53--30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Encouraging or discouraging membership in Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate its employees, or by discriminat- ing in any other manner in regard to their hire or tenure of employ- ment or any term or condition of employment. (b) Encouraging, assisting, and supporting Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., or any other labor organization. (c) Recognizing or in any other manner dealing with Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., or any successor thereto, as the collective bargaining representative of its employees unless and until such organization has been certified as such representative by the Board. (d) Giving effect to any contract between itself and Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., or any successor thereto, unless and until such labor organization has been certified by the Board as the collective bargaining representative of the employees involved.13 (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 894, United Brother- hood of Carpenters and Joiners of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as author- ized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will ized in Section 8 (a) (3) of the Act. (a) Offer to Harry L. Curtis, Edwin Knapp, Kenneth Valley, and Milford Frey, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges as provided in the section of the Intermediate Report entitled "The Remedy," and make whole the said employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them in the manner pro- 13 However, nothing herein shall be construed as requiring the Respondent Company to vary any wage , hour, seniority, or other substantive features of its relations with the Cadillac employees themselves, which the Company has established in the performance of contracts, or to prejudice the assertion by the employees of any rights they have under such agreement. It WOOD PARTS, INC. 453 vided in said section, except that such responsibility shall be single and individual rather than joint and several. (b) Withdraw and withhold recognition from Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., as the collective bargaining representative of its Cadillac employees , unless and until such organization shall have been certified as such repre- sentative by the Board. (c) Post at its plant at Cadillac, Michigan, copies of the notice attached hereto and 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 maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (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 therewith. IT IS FURTHER ORDERED that the complaint , insofar as it alleges that the Respondent Company violated Section 8 (a) (1) and (3) by refusing to reinstate L. D. Vincent, James M. Welsh, and Clarence Teets and that the Respondent Union violated Section 8 (b) (1) (A) and (2 ) of the Act, be, and it hereby is, dismissed. Appendix A NOTICE To ALL EMPLoni s Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT encourage or discourage membership in L OCAL 894, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERI- CA, A. F. L., or in any other labor organization of our employees, by discharging any of our employees or in any other manner dis- 34 In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminating against them in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT enter into any contract with LOCAL 894, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., nor recognize it as the collective bargaining representative of our employees, until and unless that labor organization has been certified as such representative by the National Labor Relations Board. WE WILL NOT give effect to any contract now in existence be- tween ourselves and LOCAL 894, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA, A. F. L. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist LOCAL 894, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL OFFER to the employees listed below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them : Harry L. Curtis Edwin Knapp Kenneth Valley Milford Frey All our employees are free to become or remain members of any 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 be- half of any such labor organization. Wool) PARTS, INC. Employer. Dated -------------------- By ------------------------ (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. WOOD PARTS, INC. Intermediate Report and Recommended Order STATEMENT OF THE CASE 455 Upon charges and an amended charge filed by L. D. Vincent, Harry L. Curtis, and Milford Frey, herein called the charging parties, the General Counsel of the National Labor Relations Board,' on behalf of the Board, by the Acting Regional Director of the Board for its Seventh Region (Detroit, Michigan), issued consoli- dated complaints on April 23, 1951, against Wood Parts, Inc., herein called the Respondent Company or the Company, and Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., herein called the Respondent Union or the Carpenters, alleging that the Company had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 (Public Law 101, 80th Congress, 61 Stat. 136), herein called the Act, and that the Respondent Union had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act. Copies of the charges, the complaints, the order consolidating the cases, and notice of a consolidated hearing were duly served upon the Respondents= and the charging parties. With respect to unfair labor practices the complaints as amended at the hear- ing allege in substance that the Respondent Company interfered with, restrained, and coerced its employees in the exercise of their rights under the Act by: Executing and thereafter enforcing collective bargaining contracts with the Respondent Union on June 15 and July 28, 1950, despite the fact that, as the Company knew, there was then pending with the Board a petition for decerti- fication of the Respondent Union, said petition having raised a question con- cerning representation, as found by the Board in a Decision and Direction of Election dated June 26, 1950; incorporating an illegal union-security provision in the said agreements, and in prior contracts with the Respondent Union, and thereafter enforcing them ; threatening its employees with economic reprisals if the Respondent Union were decertified ; engaging in surveillance of the meet- ings of those employees who supported the decertification petition, and of the activities of individual employees who supported said petition ; permitting activ- ities during working hours, by its employees, on behalf of the Respondent Union while prohibiting activities in support of the decertification petition ; discharg- ing employee Albertus Hendricks because the latter had engaged in activity in support of the decertification petition; encouraging its employees to refuse to work with certain other employees who had been active in support of the decer- tification petition ; and informing some of its employees that they would be subject to dismissal because of their participation in the presentation to the Company of a petition requesting the Company to make a change in the working conditions of the said employees. The complaints further allege that: The Respondent Company, by certain enumerated acts, encouraged, assisted, inter- fered with the administration of, and contributed financial support to, the Re- spondent Union ; discharged certain named employees, and has since refused to reinstate them, because they had engaged in legally protected concerted activities, and had had their membership in the Respondent Union terminated for reasons ' The General Counsel and his representative at the hearing are herein called the Gen- eral Counsel; the National Labor Relations Board is referred to as the Board. ' The Respondent Company and the Respondent Union are herein referred to collectively as the Respondents. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than their failure to tender to said Union the periodic dues and the initia- tion fees uniformly required as a condition of acquiring or retaining membership therein; and that the Respondent Company discharged one other employee, and has since refused to reinstate him, because he had engaged in legally protected concerted activities together with other employees. The complaints also allege that the Respondent Union has, by enforcing the illegal collective bargaining contracts above referred to, caused and at- tempted to cause the Respondent Company to discriminate against its employees In regard to their hire and tenure of employment, thereby encouraging member- ship in the Respondent Union ; has, by certain enumerated acts, restrained and coerced the employees of the Respondent Company in the exercise of their rights under the Act; and has caused the Respondent Company to discharge certain named employees , and to refuse to reinstate them, for the reason that these employees had exercised their rights under Section 7 of the Act. In their answers, duly filed, the Respondents and each of them deny, in sub- stance, that they have engaged in any of the unfair labor practices alleged in the complaints. The Respondent Union alleges further in its answer that the Board lacks jurisdiction over the Respondent Union and the subject matter of the complaint against it because "the sole allegations relating to said juris- diction set forth in said complaint invokes the purported authority of Section 8 (b) (1) and (2) of the [Act), which portions of said enactment are unconsti- tutional and void in that they contravene the Constitution of the United States, Amendments I and V." Pursuant to notice, a hearing was held at Cadillac, Michigan, on certain days between and including May 15 and 24, 1951, before the undersigned Trial Exam- iner, duly designated by the Chief Trial Examiner of the Board. The General Counsel, the Respondent Company, and the Respondent Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. Before the hearing was closed, counsel for the Respondent Company called the attention of the Trial Examiner to the fact that he had had served upon the United Mine Workers of America a subpena ducea tecum, calling upon that labor organization to produce at the hearing all of its records relating to the dates and duration of employment by said labor organization of L. D. Vincent, one of the charging parties herein, the nature and duties of such employment, and the wages and other compensation paid to him. Counsel for the Respondent Company pointed out that the United Mine Workers had failed to produce the aforesaid records at the hearing, as was required by the subpena, and moved the Trial Examiner for a continuance, before the hearing should be closed, for a period of 15 to 20 days, for the purpose of permitting counsel to secure enforce- ment of the subpena and production of the said records. This motion was joined in by counsel for the Respondent Union. From discussions on the record between counsel and the Trial Examiner, it appeared that counsel for the Respondents proposed to prove by such records that the complainant, L. D. Vincent, was at all times material herein a paid employee of the United Mine Workers of America, and, in effect , a "front" for the said labor organization , which is not in compliance with Section 9 (f), (g), and (h) of the Act. Another purpose stated by counsel for requesting the continuance was to afford them opportunity to obtain the records of the United Mine Workers in order to attack the credi- bility of Vincent as a witness. For reasons fully stated on the record by the Trial Examiner, the latter denied the motion for a continuance, and the hearing was subsequently closed over the objections of counsel for the Respondents. WOOD PARTS, INC. 457 Following the close of the hearing, counsel for the Respondent Company filed with the Trial Examiner a motion, dated June 11, 1951, to reopen the hearing for the purpose of receiving additional evidence , namely, the aforesaid records of the United Mine Workers of America relating to its employment of L. D. Vincent. In his said motion, counsel for the Respondent Company alleged that he had filed with the General Counsel of the Board a request to institute proceedings in the appropriate district court of the United States for enforce- ment of the above-mentioned subpena which had been served upon the United Mine Workers. In an order dated June 15, 1951 , the Trial Examiner denied the motion of the Respondent Company to reopen the hearing, "without prejudice to the right of the Respondents to renew said motion if a court of competent jurisdiction should issue an order requiring compliance with the above-mentioned subpena duces tecum by the United Mine Workers of America." On June 27, 1951, counsel for the Respondent Company filed with the Board a document excepting and objecting to the Trial Examiner 's denial of the motion to reopen the hearing. On July 25, 1951 , the Board informed the parties that it was construing the aforesaid document as a request for special permission to appeal to the Board as provided in Section 102.26 of the Board 's Rules and Regulations, and that the Board was denying the request "without prejudice to the Respondent's right to except to the Trial Examiner 's ruling in the manner prescribed by Section 102.46 of the Rules and Regulations." On August 16, 1951, the representative of the General Counsel filed a motion with the Trial Examiner to "incorporate and make part of the record in this proceeding this Motion with attached affidavits . . . and attached correspond- ence . . . so that the Trial Examiner and any subsequent reviewing authority will have available all the facts which transpired subsequent to the close of the hearing in this matter and which pertain to the subpena duce8 tecum addressed to the United Mine Workers of America and issued at the request of respondent, Wood Parts , Inc." 8 The foregoing motion of the General Counsel was opposed by counsel for the Respondent Company in written objections dated August 28, 1951, which were filed with the Trial Examiner . In an order dated September 10, 1951, the Trial Examiner denied the motion of the General Counsel to incorporate the proffered documents in the record of this proceeding , and directed that the said motion and attached documents be marked as General Counsel 's Exhibit 43 and filed in the rejected-exhibits file of this proceeding. At the close of the hearing, a motion by the General Counsel to conform the pleadings to the proof with respect to such formal matters as spelling of names, dates, and the like, was granted without objection. When the General Counsel rested his case, counsel for the Respondents moved to dismiss the complaints on the ground of failure of proof. These motions were denied with leave to re- new them at the close of the entire case. When they were then renewed the Trial Examiner reserved rulings thereon. These motions are disposed of by the findings, conclusions, and recommendations hereinafter made. Before the 3 The documents attached to the aforesaid motion set forth , in sum , that representatives of the General Counsel had been in contact with the United Mine Workers of America and had been told that the latter organization would , if the hearing in this matter were to be reopened in Washington, D. C., voluntarily produce the records covered by the subpena which had been served upon it; that the General Counsel thereupon offered to join with the Respondents herein in a motion to reopen the hearing in Washington, D. C., and that the Respondents refused to do so; that thereafter the General Counsel obtained a promise from the United Mine Workers to produce the said records at a hearing in Cadillac, Michi- gan, if the hearing should there be reopened ; that the General Counsel thereupon com- municated that information to counsel for the Respondent Company, and offered to join with him in a motion to the Trial Examiner to reopen the hearing at Cadillac , Michigan, and that counsel for the Respondent Company declined to do so. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) close of the hearing an opportunity was afforded to all parties to be heard in oral argument before the Trial Examiner. The General Counsel availed him- self of this opportunity. Announcement was also made before the closing of the hearing that all parties would be permitted, within a specified period after the end of the hearing, to file with the Trial Examiner briefs and/or proposed findings of fact and conclusions of law. None of the parties has filed such documents. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent Company, Wood Parts, Inc, is a Michigan corporation having its principal office and certain of its manufacturing plants at Cadillac, Michigan, and other such plants at Terrel, Texas, and Williamsport, Pennsylvania. It is engaged, in its plants, in the manufacture and assembly of overhead doors and other products. During the year 1950, the Respondent Company, in the course and conduct of its afore-mentioned business in Cadillac, Michigan, pur- chased wood, glass, plywood, and other materials valued in excess of one million dollars, of which more than 90 percent was purchased by and shipped to the Respondent Company from points outside the State of Michigan, to its afore- mentioned plants at Cadillac, Michigan. During the same calendar year, the Respondent Company produced at its Cadillac plants and sold therefrom, finished products valued iii excess of two million dollars, of which more than 90 percent was shipped to customers outside the State of Michigan. The Respondent Company concedes, the Respondent Union does not dispute, and I find, that the Respondent Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., is a labor organization admitting employees of the Respondent Company to membership. III. THE UNFAIR LABOR PRACTICES A. Background facts and sequence of events 4 The alleged unfair labor practices involved in this proceeding occurred with respect to the employees of the Respondent Company's two plants located at Cadillac, Michigan. These two plants are called, respectively, Plant Number 1 and Plant Number 2. During the period of time herein material, the top supervisory hierarchy at these two plants was as follows : Vice-President William V. Barrowclough acted as general manager of all of the Company's plants, including those at Cadillac. Under Barrowclough's general supervision, Manager Henry Brink- man was in direct charge of the two Cadillac plants until around September 1950, when Brinkman was transferred to a company operation in another lo- cation, and was succeeded as manager of the Cadillac plants by Frank Smith. Under the supervision of Brinkman, and later Smith, Superintendent Leo W. Sweet was in charge of all the factory operations in Plants Numbers 1 and 2 at Cadillac. Sweet had three supervisory assistants, Foreman Glenn Lucky * Unless otherwise indicated, all findings of fact made herein are based upon undisputed evidence. WOOD PARTS, INC. 459 in Plant Number 1, Foreman Leigh McInnis in Plant Number 2, and Foreman L. D. Niles Chesebro, who was in charge of the operations of the "rough mill," which was attached to Plant Number 2. At times when more than one shift was being operated, Night Foreman Cliff Lyons would act as the supervisor in charge of the second shift in Plant Number 1. In 1941 or 1942, the Respondent Union or the international body with which it is affiliated requested that the Respondent Company recognize it as collective bargaining representative of the employees in the Cadillac plants. According to the testimony of General Manager Barrowclough, which I credit, the Com- pany "needed the AFL Label in certain spots," and therefore "encouraged" the Respondent Union to come into the plants, this encouragement taking the form of telling employees that the Company would not be against the Carpenters Union, and in fact recommended and welcomed it in its Cadillac plants. Such "encouragement," according to Barrowclough, took place even before the Com- pany signed a contract with the Respondent Union. In either 1941 or 1942, the Respondent Company entered into a collective bargaining agreement with the Respondent Nnion, recognizing the latter as bar- gaining representative of the Cadillac employees, and containing a closed-shop provision. This contract remained in force from year to year by virtue of an automatic renewal clause contained therein. On May 1, 1946, the Company and the Respondent Union entered into a new written agreement containing a closed-shop clause, an automatic renewal pro- vision, and provisions permitting the Company to stamp the union label upon its products. So far as the record shows the aforesaid contract remained in effect until 1948 when another contract was entered into by the parties. The 1948 agreement became effective by its terms on May 1, 1948, and was to continue in full force and effect until May 1, 1949, and thereafter from year to year, subject to modification upon 60 days' notice prior to its expiration, by either party. This agreement contained a union-security clause reading as follows : The party of the first part agrees to recognize the Union as the sole and exclusive bargaining agency for all employees eligible to membership in the Union and further agrees to employ only such members of the Union who are in good standing with the Union or those who signify their intention to become members by signing application for membership immediately upon being employed. It is understood, however, that new employees may be considered on probation for a period of thirty days and upon completion of the thirty day probationery [sic] they shall pay the required fee and be initiated as members of Local Union #894 at the next regular meeting of the Local Union. Employees failing to comply with this ruling shall be subject to dismissal. On May 1, 1949, the Respondents entered into a written agreement reading as follows : "The agreement between Wood Parts, Inc., and The United Broth- erhood of Carpenters and Joiners of America, Local 894, which expires May 1, 1949, shall remain in effect for one year, with the exceptions of the following amendments :" The amendments referred to in the foregoing are not material to the issues herein.' ' It is undisputed that pursuant to Case No. 7-UA-1041, the Board conducted an elec- tion on or about September 23, 1948, among the employees of the Company 's Cadillac plants, on the question of whether or not the Respondent Union should be authorized to enter into an agreement containing a union-shop clause, and that on October 1, 1948, it was certified by the Board that the Respondent Union was authorized to enter into such an agreement with the Company. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The president of the Respondent Union during the period when the aforesaid 1948 and 1949 contracts were negotiated and signed was employee L. D. Vin- cent. At some time during or prior to January 1950, Vincent became the leader of a group of employees, members of the Respondent Union, who were dis- satisfied with the international body with which the said Union was affiliated. He advocated that the local disaffiliate from the Carpenters and become affiliated with District 50 of the United Mine Workers of America. At a meeting of the officers and stewards of the Respondent Union on January 23, 1950, a motion was passed to recommend to the membership that the local disaffiliate from the Carpenters and become a local of the United Mine Workers. It was also decided at this meeting to recommend to the membership to authorize a division of the funds in the treasury of the local among its 11 officers and stewards, ostensibly as payment for past services rendered the Union. Asa mat- ter of fact, before any membership meeting was held to authorize such a dis- bursement of the Union's funds, the money then in the treasury was actually divided among the officers and stewards, each receiving about $61. It is reason- able to infer from the record that the purpose of this action was to deplete the funds of the Respondent Union so that none of the local's money should remain with the Carpenters in the event the disaffiliation movement should prove suc- cessful. At least some of the officers who received a share of the money appear to have been parties to an oral understanding that they should hold such money in trust, to be returned to the local Union after it had become affiliated with the United Mine Workers. In any event, the precise motivation for the action taken by the officers with regard to the funds of the local is not material to the issues in this case, and the facts are set forth only for the purpose of furnishing an understandable background for subsequent treatment of the issues. On January 26, 1950, a general membership meeting of the Respondent Union was held, at which a motion was passed to sever the connection of the local with the Carpenters, and to divide the local's funds equally among the 11 officers and stewards in payment to them for past services rendered the local. On January 31, 1950, the Respondent Union, on instruction from its inter- national office, held a special meeting and suspended its local officers.' A slate of temporary officers was elected to succeed them. On the date the above- described special meeting was held, a general representative of the Carpenters sent a letter to the Respondent Company, informing it of the action taken, telling it the names of the new officers of the Union, and asking the Company thenceforth to recognize and deal with the new officials of the Respondent Union, and pay checked-off union dues to the new treasurer. After receiving the letter from the Respondent Union notifying it of the sus- pension of the local officers, the Company laid off some of these suspended officers on the dates shown oppposite their names as follows : Vincent (January 31, 1950) Teets (February 6, 1950) ; Welsh (February 2, 1950) ; Knapp (February 2,1950) ; Curtis (February 2, 1950) ; and Valley (February 2, 1950). These layoffs were effectuated because at the times shown there was a shortage of work for the 6 The officers thus suspended were : President L D. Vincent ; Vice-President Edwin Knapp ; Recording Secretary Kenneth Valley; Financial Secretary and Treasurer Clarence Teets ; Conductor James Welsh, Warden George Rose ; Trustees Don Trowbridge, Harry Curtis, and Harry Hines ; Chief Steward Richard Eash ; and Steward Hans Sorensen. Statements of charges placed against these officers, and letters from the Respondent Union to the Company Indicate, and I find, that they were suspended from office, and later disciplinary action was taken against them by the Respondent Union because they had "advocated and encouraged" the division of funds of the Union among the officers, and the disaffiliation of the local from the Carpenters and its affiliation with District 50 of the United Mine Workers of America. WOOD PARTS, INC. 461 Company's employees ; because, pursuant to an agreement between the Company and the Respondent Union, officers of the Respondent Union were granted a preference in employment, referred to as "super-seniority"; the employees in question lost that super-seniority upon being suspended from office by the Union; and, as a result, they then lacked sufficient seniority to hold their jobs. The General Counsel makes no contention that these layoffs constituted discrimina- tion by the Company. On or about February 6, 1950, Vincent, on behalf of those of the Respondent Company's employees who sought to repudiate the Carpenters as their collective bargaining representative, filed a "decertification petition" with the Regional Office of the Board, alleging that a substantial number of the employees no longer wished to be represented by the Respondent Union, and in effect requesting that an investigation be conducted by the Board with respect to the desires of the employees as to their bargaining agent (Case No. 7-RC-68). Pursuant to that petition, the Board, on May 8, 1950, held a hearing thereon at which the Com- pany, the Petitioner, and the Respondent Union were represented, and on June 26, 1950, issued its Decision and Direction of Election in which it held that a question of representation existed in relation to the Respondent Company's Cadillac employees, and in which it directed that an election be conducted among those employees within 30 days, in order to determine whether or not the em- ployees desired to be represented by the Respondent Union for purposes of collec- tive bargaining.? As will be recalled, the agreement entered into by the Respondents on May 1, 1949, provided that the prior contract between them (with some minor modifica- tions) should "remain in effect for one year," i. e., until May 1, 1950. After the latter date, according to the undenied testimony of General Manager Barrow- clough, which I credit, the Respondent Union "kept after the Company to sign a new contract." It further appears from Barrowclough's undenied testimony, and I find, that even after the Company knew that an election was going to be held to determine the collective bargaining representative of the Company's employees, the Respondent Union continued its demands for a new contract, to include, among other things, provisions for a wage increase. The Respondent Company refused to discuss any new or changed terms with the Respondent Union because, as Barrowclough testified, it felt that it "would have to wait until [it] had the results of the election.. . . " The Respondent Union explained that it wanted to obtain a new contract "to show [that] they were still the bargaining agent in the plant," and the Company finally agreed that it "would sign a contract under pressure . . . but that is as far as [it] would go. [It] would not discuss any new terms in regard to a raise." On June 15, 1950, the Company entered into a written agreement with the Respondent Union containing language extending recognition to the latter organ- ization as collective bargaining representative of the employees of the Company's Cadillac plants, and a union-security clause, identical in terms with that con- tained in the contract dated May 1, 1948, which had been extended for another year on May 1, 1949. Although the instrument was signed on June 15, 1950, it contains provisions for it to be "effective as of May 1, 1950, and continue in full force and effect until May 1, 1951," and from year to year thereafter. In the last page of the instrument, after the foregoing, it is provided that the "agreement 'The Board's said Decision and Direction of Election sets forth that after the close of the hearing, the Respondent Company filed a motion with the Board to reopen the hearing for the purpose of permitting it to introduce newly discovered evidence tending to show that Vincent, who had filed the petition, was "fronting" for a noncomplying labor organ, ization. The Board denied the said motion to reopen. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between [the parties] which expires May 1, 1950, shall remain in effect for one year. . .." It is thus somewhat unclear, to say the least, whether the aforesaid agreement signed on June 15, 1950, is to be construed as a renewal or extension of the last contract, or a new contract with identical terms. But that ambiguity has no bearing on the issues here. The material fact, in my view, is that on June 15, 1950, the Respondent Company entered into an agreement with the Respondent Union whereby it extended recognition to the latter as collective bargaining representative of the Company's Cadillac employees for a further period until May 1, 1951. Pursuant to the Board's Decision and Direction of Election, it conducted an election among the employees of the Company's Cadillac plants on July 18, 1950. That election resulted in 121 ballots being cast in favor of the Respondent Union and 39 against it. On or about July 20, 1950, Vincent, the petitioner in the de- certification proceeding, filed objections to the election, alleging that the Com- pany had illegally influenced the outcome thereof by improperly extending as- sistance to the Carpenters in various ways. On October 19, 1950, the Regional Director of the Board issued a report on objections to election, in which he found merit in Vincent's objections and recommended that the election of July 18 be set aside. On November 6, 1950, the Board issued its Supplemental Decision and Order in Case No. 7-RD-68, by which it ordered the election set aside. After the election, the Respondent Union again requested that the Company negotiate with it concerning the terms of employment of the Cadillac employees, and on July 28, 1950, the Respondents entered into a written agreement entitled "Amendments To Contract," in which provision was made for a general wage increase, among other things. At this point it would be helpful to our understanding of the issues to recount some of the other events which intervened between the beginning of the move- ment to repudiate the Carpenters and the holding of the election on July 18, 1950. It has been noted above that Vincent, Teets, Welsh, Knapp, Curtis, and Valley, who were officers of the Respondent Union when motions were passed to divide the funds of the Respondent Union among its officers, and to disaffiliate from the Carpenters, were laid off by the Company following their suspension from office in the Respondent Union. On March 13, 1950, the Respondent Union held a meeting at which a motion was passed that its members would refuse to work with Vincent, Teets, and Welsh, in the event that these employees were recalled to work by the Company. 8 Under date of March 14, 1950, the Respondent Union informed the Company of the aforesaid action in a letter which added the fol- lowing explanation : "The reason is because of the charges Local No. 894 has against them. They did advocate and encourage dissolution of [the Respondent Union] to District No. 50 of the United Mine Workers of America." On March 13, 1950, the Respondent Company recalled Valley and Knapp to work, and on March 14 sent a similar notice to Curtis. All three of these em- ployees accordingly reported back to work (Curtis and Knapp on March 15 and Valley on March 16), and continued in the employ of the Company until May 19, 1950, when their employment was terminated under circumstances to be de- scribed hereinafter. The Company similarly recalled Vincent, Teets, and Welsh to work (Vincent and Teets on March 13, Welsh on March 9).e When these employees, in response 8 The record affords no explanation as to why the Respondent Union decided that its members should refuse to work with Vincent, Welsh, and Teets, but did not take similar action with respect to Knapp, Curtis, and Valley. 9 Vincent, Welsh, Teets, Valley, Curtis, and Knapp were recalled to work in accordance with their seniority standings, when more jobs became available in the Company 's plants. WOOD PARTS, INC. 463 to the recall notices sent to them, reported back to the Company for work, the following took place : Vincent, pursuant to the instructions in his recall notice, returned to work on March 16, at Plant Number 2. He reported to Foreman McInnis, who assigned him to a job. A few minutes after Vincent had started his work, one of the operators of the machine to which Vincent was assigned turned off the power and announced that he refused to work with Vincent. About this time other machines stopped, and other employees ceased working. Foreman McInnis then turned to Vincent and said, "I guess there's nothing much I can do," whereupon Vincent answered that he might as well go home. McInnis replied, "That's right, I can't use you here." It is undisputed that neither McInnis nor anyone else on behalf of the Company took any action at this point to instruct the other employees to return to work and to permit Vincent to continue to work. Vincent then left the plant. Teets also reported back to work on March 16, in response to his recall notice. He returned to Plant Number 1, reported to Foreman Glenn Lucky, and was told by the latter to punch in his time card, which Teets did. According to Teets' testimony, he then saw Superintendent Sweet and handed to the latter the tele- gram recalling him to work. Teets testified that Sweet then said, "Well, as far as I know, I don't know anything about you going to work. I guess that is it," whereupon Teets left the plant. Sweet's testimony as to what occurred on this occasion is in conflict with that of Teets. According to Sweet, when Teets handed him the recall telegram, he also asked Sweet whether Sweet had a job for him and Sweet answered in the affirmative. Teets then asked Sweet whether he could return to the same job he had held before his layoff, and Sweet ex- plained that Teets would have to work on some other job, because Teets' former job was then held by an employee with greater seniority. At this point, ac- cording to Sweet, Teets said, "Well, we will skip it," and then left the plant. For reasons stated in the footnote below, I credit Sweet's version of what occurred 10 Welsh reported back for work on March 13, in accordance with the recall notice sent to him by the Company on March 9. He reported to Superintendent Sweet, who assigned him to a job on a machine operated by an employee named Johnson.11 Johnson stated that he would not work with Welsh, and shut down 10 The record as a whole , particularly the evidence with respect to the recall of Vincent and Welsh on two occasions , makes it plain that the Company was anxious at least to go through the motions of offering Vincent, Welsh , and Teets reinstatement to its employ. It is consequently difficult to believe that Sweet, on the above-described occasion, would, as Teets testified , have told him in effect that there was no job available for him, in the face of the Company's telegram instructing Teets to return to work. Moreover, as is found hereinafter, Teets failed to go through with an actual return to work on a later occasion when he was , for a second time , recalled by the Company. I also credit Sweet's testimony that Teets' original job with the Company was then filled by an employee with greater seniority than was possessed by Teets, and the undenied testimony of Manager Brinkman that when Vincent was first recalled to work , Vincent's original job in Plant Number 1 was likewise occupied by an employee senior to Vincent. It is undisputed that the layoff of Vincent , Teets, and Welsh resulted from their lack of sufficient seniority to retain their jobs , and it would follow that upon their recall they would be near or at the bottom of the seniority list. 11 At the time Welsh was laid off he was employed as a watchman . According to Mana- ger Brinkman , he could not be recalled to his former job as a watchman because at the time he lacked sufficient seniority to displace the employee who then held that job. Brinkman testified that he had so reported to Chief Steward Seelye of the Union, when he (Brinkman ) informed Seelye that Welsh was being recalled to work . Brinkman also discussed with Seelye, on this occasion, the alleged fact that Welsh was given to drink- ing, but Brinkman denied that he had assigned that as a reason for not recalling Welsh to his former job as a watchman Seelye testified that during the discussion with 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the machine. At that point, the rest of the employees ceased working and the power was shut off from the other machines in the plant. Sweet then conducted Welsh to Donald Trowbridge,' crew leader of the repair crew in the plant, and asked Trowbridge whether he "could use" Welsh, to which Trowbridge replied in the negative. Finally, Sweet took Welsh to Chief Steward Seelye of the Respondent Union, who said that he could not do anything for Welsh. Sweet then left. Welsh then asked Seelye to take him around to other employees to see whether they would not work with him. Seelye refused, saying that the employees would not work with Welsh. Finally Welsh returned to Superintend- ent Sweet and asked the latter whether there was any work for him to do. Sweet answered in the negative, and suggested that Welsh leave the plant and return later to see Manager Brinkman. Later that morning, Welsh came back to the plant and asked Brinkman why he could not be reinstated to his former job as watchman. According to Welsh, Brinkman replied that that was impos- sible. Welsh then left the plant. General Manager Barrowclough testified that he had a conversation with an unspecified representative of the Respondent Union at some time before or after Welsh had attempted to return to work as above described, during which he told the union representative that the Company was attempting to put Welsh, Vincent, and Teets back to work "on advice of counsel." Barrowclough further testified that he told the representative of the Union during the same conversa- tion that he would discharge all the employees who refused to work with Welsh. Barrowclough admitted, however, that the Company never took any action to discipline or even to reprimand any of the employees who refused to work with Welsh, Vincent, and Teets, not even the employee who, it was reported to Barrowclough, shut the power off when Vincent attempted to return to work. Barrowclough also testified that the only action taken by the Company to insure Vincent a job when he first returned to work was to "plead with" the union committee to "take him back to work." It is clear from the record, and I find, that the Company never attempted, either by way of actual discipline, warnings, or even direct instructions to the employees involved, to induce the employees to resume work, and permit Vincent and Welsh to return to work, on the above- described occasions.' By the time the above-described events took place, the charges setting the present proceeding in motion had been filed, and a field examiner of the Board had been in touch with the Company in regard thereto. According to General Brinkman, the latter had stated that Welsh could not be given back a job as watchman because of Welsh's drinking. Although, for reasons already stated, I am inclined to credit Brinkman's testimony that Welsh lacked sufficient seniority to displace the watch- men already on the job, I find it unnecessary to resolve the conflict as to whether or not that was the reason assigned for the Company's failure to recall Welsh to that job. The point at issue is whether or not the Company illegally failed to reinstate Welsh to its employ, not whether it discriminated against him with respect to the kind of job to which he was recalled. In any event, whether the Company' s reason for refusing to recall him to a job as watchman was his alleged drinking, or his lack of seniority, either of these reasons would be a valid basis for such refusal. 12 Trowbridge was one of the officers of the Respondent Union who had received a share of the money when the funds in the union treasury were divided on January 23, and he, along with the other officers, was suspended from office on January 31. Subsequently, Trowbridge returned his share of the funds to the Respondent Union. Apparently by the time of the above-described occurrence , Trowbridge had made his peace with the Carpenters. 13 Insofar as Teets is concerned , as I have already found, Teets failed actually to report back to the job to which he was recalled on March 13, and so did not put the Company to the test, as did Vincent and Welsh, as to whether he would be permitted to resume work. WOOD PARTS, INC. 465 Manager Barrowclough, he reported to the said field examiner what had resulted from the Company's recall of Vincent, Welsh, and Teets, and was advised by the field examiner to make another attempt to put these employees back to work. On March 24, 1950, the Company again sent telegrams to Vincent, Welsh, and Teets, instructing them to report back for work on March 27. Vincent reported to Superintendent Sweet on March 27, and was assigned to his former job as a stock-chaser. A few moments after Vincent went to his bench and was pre- paring to start work, the power was shut off from the machines in the plant, and the employees ceased work and started to gather in groups in the plant. At about this time, Henry Samenski, Vincent's crew leader, approached Super- intendent Sweet in the plant and asked him "what he [Samenski] was supposed to do." Sweet answered, "You know what the set-up is," so Samenski "just went back and sat down with the rest of the men." " During this period, Sweet was walking about the plant from machine to machine. He approached one machine crew and asked employee Nickerson why his crew was not working. Nickerson answered, "give me power and we will go to work." Sweet merely threw up his hands and walked away." Sweet then asked crew leader Trow- bridge why the latter's crew was not working, and Trowbridge said, "You get the undesirable, Vincent, out of here and we will go to work." Sweet merely walked on. At some point during this period, Chief Steward Seelye of the Respondent Union accompanied Vincent to the rough mill in the Company's lumber shed where the employees were questioned as to whether or not they would be willing to work with Vincent. Several of them indicated that they would not. Finally someone asked employee Eash whether the latter would be willing to work with Vincent. Eash answered, "You're darned right I will !" Foreman Chesebro of the lumber shed came in at about that time, and was informed of Eash's willingness to work with Vincent. Chesebro then transferred Eash to some other job, out of the lumber shed.18 After Sweet had observed the machines being shut down and the employees stop work, he consulted Manager Brinkman, who instructed him to ask the employees why they were not working ; after making such inquiries, according to Sweet, he reported to Brinkman that the employees had said that they would not resume work unless Vincent left the plant. Brinkman then instructed Sweet to tell Vincent "to go, because we couldn't lose production for the whole plant for one man." Sweet then told Vincent "he would have to leave." Vincent thereupon left the plant. He has not since been recalled to work by the Respondent Company. On March 27, also, Welsh and Teets, in response to the second recall telegram, reported back to the Company's plant. Welsh and Teets arrived together, some 4 or 5 hours after Vincent had made his above-described unsuccessful effort to return to work. They reported to Foreman Glenn Lucky, who started to conduct Welsh to a job. At this juncture, Teets spoke to Lucky and informed him that he would have to go home to change into working clothes if be were to go to work. Lucky gave him permission to do so, but added, according to Teets and Welsh, "I don't believe it will do you any good." " Teets left the plant, and apparently waited for Welsh near the entrance. During this time, according to the undenied testimony of Superintendent Sweet, which I credit, Sweet saw Teets outside the plant entrance, and asked him where he (Teets) was going. 14 Based on the undenied testimony of Samenski , which I credit. 1 Based on the undenied , credited testimony of Curtis. 36 Based on the composite testimony of Vincent and Seelye. "Lucky did not testify at the hearing. The record shows that at the time of the hearing he was employed at the Company's plant in Williamsport , Pennsylvania. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teets replied that he was going home to change his clothes, and asked Sweet whether the latter had a job for him. Sweet answered in the affirmative. It is undisputed that Teets never did report back to the Company ready to go to work. I conclude and find that Teets never actually reported ready to go to work in response to the Company's recall notice sent him on March 24. After Teets left, ostensibly to go home to change into working clothes, Foreman Lucky took Welsh to a machine being operated by employee Johnson's Johnson left the machine, saying he would not work with Welsh. Lucky then conducted Welsh, at the latter's request, to a place where employee Eash was working on a saw. Welsh asked Rash whether Eash would work with him. When Eash said that he would, Lucky remarked that that job was filled, and took Welsh to employee Rose. Rose, being asked, indicated that he would not work with Welsh. As Welsh and Foreman Lucky were leaving the scene, Welsh asked Lucky what he should do, and Lucky replied there was nothing for him to do but to go home. Welsh then met Teets at the plant entrance, and left. It is un- disputed that Welsh has not since been recalled to work by the Respondent Company. It is undisputed that Vincent, Welsh Teets, Curtis, Valley, and Knapp, who had been suspended from their former offices in the Respondent Union on January 31, 1950, continued to be members in good standing of that organization until on or about May 3, 1950.19 Sometime before May 3, 1950, the Respondent Union informed the Respondent Company by letter that these employees had failed to pay the fines levied upon them by the Union, and were therefore considered no longer members in good standing. The letter concluded with the request that they be discharged on May 3, 1950. It will be remembered that by this time Vincent, Welsh, and Teets were not actually in the Company's employ, having been laid off, and never having been reinstated to the Company's employ. Curtis, Valley, and Knapp, having been reinstated, as herembefore described, were still working for the Company on May 3. The Company did not immediately accede to the Respondent Union's request, and kept Curtis, Knapp, and Valley in its employ. Thereafter the Union made repeated demands for the discharge of the said employees. Finally, on or about May 16, 1950, Chief Steward Seelye of the Respondent Union took into his possession the rubber stamp used to stamp the union label on the company products, and informed the Company that it would not be returned for use by the Company until Curtis, Knapp, and Valley were dis- charged. At about the same time, locals of the Carpenters in Cleveland, Ohio, and St. Louis, Missouri, were informed by the Respondent Union that the Com- pany had been denied the use of the union label on its products. Customers of the Company in these cities were then informed that union carpenters would IS Apparently this was the same Johnson who had refused to work with Welsh on the occasion of Welsh's first recall by the Company. 19 As has been set forth above, charges had been filed against them under the constitu- tion of the Union, based on their advocacy of disaffiliation from the Carpenters, and their participation in the division of the funds in the treasury of the local . They did not appear for trial when a trial date was finally set, and on or about April 3, 1950, the Respondent Union levied fines of $300 against Vincent , Teets, and Welsh , and $250 against Valley, Curtis, and Knapp . ( Trowbridge, Hines, Rose, and Sorenson , former officers who had also received shares of the money when the funds in the treasury of the local were divided, later returned their shares of the money to the Respondent Union, and they were not fined. ) These fines were to be paid within 30 days. Vincent, Teets, Welsh , Valley, Curtis, and Knapp failed to pay the fines , and on or about May 3, 1950, were considered to be no longer members in good standing of the Respondent Union. WOOD PARTS, INC. 467 refuse to install doors made by the Company unless the union label were stamped thereon. On or about May 19, 1950, General Manager Barrowclough informed the Re- spondent Union that Curtis, Valley, and Knapp would be discharged at the end of that day. The Carpenters returned the union label for use by the Company, and the said employees were discharged that day, as had been promised. It is undisputed that these three employees were discharged on May 19, 1950, at the demand of the Respondent Union, on the ground that they had lost their mem- bership in good standing in that Union as a result of their failure to pay the respective fines levied on them. On July 17, 1950, a day before the "decertification election," a meeting of the Respondent Company's Cadillac employees was held in the coffee shop of the Company's plants. The meeting took place during working hours ; the em- ployees were directed to attend the meeting by their supervisors ; and the em- ployees were paid their regular wages for the time spent at the said meeting. General Manager Barrowclough of the Company, and an international rep- resentative of the Respondent Union by the name of Locking, addressed the em- ployees at the above-mentioned meeting, which was presided over by Chief Steward Seelye of the Respondent Union. Barrowclough devoted his speech to a refutation of what he alleged were misstatements of fact contained in a letter advocating the repudiation of the Carpenters, which had been circulated among the employees by Vincent.'0 Locking told the employees that they would have to vote for the Carpenters as their bargaining representative in order to retain their jobs. He pointed out that unless the Company had a contract with the Carpenters, the Company would be prevented from affixing the union label to its products, and unless the doors produced by the Company carried the union label, they would not be hung by union carpenters ; as a result, the Company would be unable to sell its doors. Locking also promised that if the employees voted the "right way," and the Carpenters was kept as their bargaining repre- sentative, he would demand and obtain a wage increase for the employees from the Company. About a month before the decertification election was held on July 18, 1950, those employees of the Company who supported the decertification movement held a meeting of their group at a meeting hall in Cadillac. Donald Trowbridge, a crew leader in the employ of the Respondent Company, who was also a member of the Respondent Union, admittedly kept the aforesaid meeting under surveil- lance for the purpose of ascertaining which employees were attending the meeting "and if possible to see what they were doing." Trowbridge testified that he took it "upon himself" to engage in the said sur- veillance and that the Respondent Company had no knowledge of his aforesaid conduct. He further testified that he engaged in the surveillance in question as 0"There is some testimony in the record (witnesses Grames and Heaton ) to the effect that Barrowclough warned the employees that if they voted to repudiate the Carpenters they would lose their jobs and some of the advantages they then had. Barrowelough denied making such statements, and testified that he merely refuted what he considered to be untruths in the Vincent letter , told the employees he was not there to tell them how to vote in the election , and then walked out. Other witnesses corroborated this testimony by Barrowclough (Ashbay, Seelye, Hendrrcks ). Hendricks , one of the wit- nesses for the General Counsel , who impressed me as being a very honest witness, testified that he could not recall Barrowclough making any other statements at the meeting aside from his references to the Vincent letter. I credit Barrowclough's denials, and conclude that the statements attributed to Barrowclough by Grames and Heaton were actually made by Locking. 242305-53-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a member of the Respondent Union and that he did not advise the Respondent Company that he had done so." On the occasion when the above-described meeting was held by the proponents of the decertification petition, Superintendent Sweet also is alleged to have en- gaged in surveillance thereof. Employee John Grames testified that when he approached the meeting hall on his way to attend the said meeting, he saw an automobile which he recognized as belonging to Superintendent Sweet drive into the street on which the hall was located, and come to a stop about 200 or 300 feet from the hall. Grames testified further that he saw Sweet in the automobile, that he waved at Sweet, and that Sweet waved back. According to Grames, Sweet's car remained standing near the hall while Grames parked his own automobile, got out of it, and walked into the meeting place. Grames told some of the other employees at the meeting about Sweet's presence nearby. Employee Harry L. Curtis testified that when Grames came into the meeting, he told Curtis that Sweet was outside, near the building, watching who was coming in. Accord- ing to Curtis, he (Curtis) then went out of the hall and saw a green Packard automobile similar or identical to the one owned by Sweet just beginning to pull away from a spot near the meeting hall. Curtis admittedly was not able to identify the man or men in the car. Employee Hendricks also testified that as he approached the hall to attend the meeting, he saw an automobile which he recognized as belonging to Sweet parked nearby, with two men in it whom he was unable to identify. Sweet testified that he did not recall being in his automobile, parked near the meeting hall, on the occasion in question ; that he did not know of a meeting being held there that day; and that he never engaged in surveillance of any meetings of either union faction. He specifically denied Grames' testimony that Grames and Sweet had exchanged waves of the hand near the meeting hall. I credit the undenied testimony of Grames, Curtis, and Hendricks that they saw an automobile of the same make and color as that owned by Sweet parked near the meeting hall on the occasion in question. The issue thus narrows itself down to one of credibility between the testimony of Grames that he recognized Sweet in the said automobile, and exchanged waves with him, and Sweet's denial thereof. It is true that Curtis and Hendricks testified that they could not recog- nize the occupants of the automobile which they took to be Sweet's. But Curtis, according to his testimony, was at a distance of 200 to 300 feet from the automo- bile when he looked at it; it is hardly surprising that at that distance he should not be able to see the occupants of the automobile clearly enough to recognize them. For all that appears in the record, Hendricks might also have been at such a distance from the car that would not have enabled him to have seen the occu- pants clearly. I therefore do not consider the fact that these two witnesses admitted that they could not identify Sweet as having been one of the occu- pants, as in any way detracting from the testimony of Grames that he could. From the testimony of Grames it is clear that he passed near the car on his way into the hall. Grames impressed me as a more reliable witness than Sweet. From the demeanor of the witnesses and the circumstances surrounding the incident, I credit Grames' testimony that he actually saw Sweet in his auto- mobile parked near the meeting hall, and I conclude and find that on the occasion "Counsel for the Respondent Company contends that Trowbridge does not occupy a supervisory status with the Company and that the Company is therefore not answerable for Trowbridge's conduct. This issue will be disposed of in the concluding findings made hereinafter. as As is found below, Sweet displayed his bias in favor of the Carpenters, and his hostility against the proponents of the decertification group, by attempting to discharge employee Hendricks for having engaged in discussion on behalf of the decertification peti- tiop during working hours , while he took no disciplinary action against the employee who WOOD PARTS, INC. 469 in question Sweet parked near the meeting hall for the purpose of ascertaining who was attending the meeting, and that his presence at the scene necessarily had the effect of interfering with, restraining, and coercing the Company's em- ployees in the exercise of their right to participate in the aforesaid meeting. There is testimony in the record indicating that circulars urging the employees to vote in favor of the Carpenters were posted in various places around the plants sometime shortly before the election, and were permitted by the Company to remain posted until the day before the election, even being posted in the Com- pany's coffee shop during the meeting held there on the day before the election.- There is similar undenied testimony that employees wearing buttons of the United Mine Workers in the shop were not interfered with by the Company in their display of such buttons. With respect to the Carpenters' circulars, employee Ted Leavell, a supporter of the Carpenters, testified credibly that the said circulars, bearing the admoni- tion to the employees to "Vote Yes" in the election, were distributed to the em- ployees, in front of the plants, on or about July 15 or 16. Some of the employees brought such circulars into the plants, and Leavell himself posted some of them in various places around the plants. General Manager Barrowclough testified that on the day before the election, a field examiner of the Board was in the Company's plants supervising preparations for the balloting. The Board repre- sentative, according to Barrowclough, noticed the "Vote Yes" circulars posted in the plants, and suggested that they be removed. Barrowclough then called in Chief Steward Seelye of the Respondent Union and instructed him to get the posters out of the plants. Seelye reported back to Barrowclough that the posters had been removed. Seelye corroborated the foregoing testimony of Barrow- clough, and testified that he had, in fact, removed the posters pursuant to Barrowelough's instructions. From the foregoing it is clear that for a period of 2 or 3 days before the elec- tion, the Company permitted circulars advocating that the employees vote for the Carpenters to be posted at various places in its plants. Those of the witnesses who testified that they saw such posters in the coffee shop while the meeting of the employees was being held may well be telling the truth, since, as the record shows, the posters were not removed until the day before the election, on which day the said meeting was held. The General Counsel adduced testimony about the posting of the Carpenters' circulars in the plants, in support of his contention that the Company, by allow- ing them to be posted, thereby rendered illegal assistance to the Carpenters. I do not deem that assistance, under all the circumstances of this case, to have been of such a nature as to warrant the basing of any unfair labor practices thereon. In the first place, the posters remained posted only for a few days at most, and were removed when called to the attention of General Manager Barrow- clough by the Board representative. In the second place, the evidence estab- lishes that adherents of the United Mine Workers, the rival union in the situ- ation, were permitted to wear buttons of that organization in the plants. I conclude that the facts concerning the posting of the circulars add or detract little or nothing from the far more serious issues, in this case, and I shall therefore base no findings on those facts. had upheld the Carpenters' side of the question during the same discussion. Moreover, despite some instances in which the Company had exhibited attempts to maintain an impartial attitude as between the two groups, or at least the appearance of neutrality, the record as a whole establishes that the Company's economic interests allied it closely with the Carpenters, and that the Company was interested in, and took active steps to aid the Carpenters in winning the election. I therefore consider it reasonable to credit the testimony that Sweet engaged in surveillance of the meeting in question. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about June 23, 1950, Verne F. Bates, a representative of the United Mine Workers of America , accompanied by employee Teets, was distributing cir- culars urging the employees of the Respondent Company to vote for decertifica- tion of the Carpenters, near the entrance to Plant Number 1. This was shortly before the time that the first shift of the Respondent Company's employees was due to leave the plant and the second shift to enter the plant to begin their work. Bates and Teets were standing on a public highway near the plant en- trance. While the first shift was still at work, Chief Steward Orval Seelye of the Respondent Union, an employee in Plant Number 1, gathered together a num- ber of other employees , including Ted Leavell and crew leader Donald Trow- bridge, and without punching out, left the plant and approached the place where Bates and Teets were standing. The group of employees who thus left the plant numbered from 8 to 10. Seelye spoke to Bates and asked him what he was doing and was told that Bates was distributing circulars to the employees . Seelye then accused Bates of having stationed himself on company property and ordered him to leave and go across the railroad tracks. Bates replied that he was on public property and would leave only if he were ordered to do so by the proper public officials. After some further exchange of words the group of employees led by Seelye returned to the plant . It is undisputed that the above occurrence took place before the end of the first shift and that the employees who left the plant in an attempt to chase Bates and Teets away from the plant entrance had done so during working hours. The employees involved testified that they had not asked any representative of the Company for permission to leave the plant and Superintendent Sweet testified that he did not know at any time about the aforesaid occurrence. Albertus Hendricks, an employee of the Respondent Company during the period under consideration , and a supporter of the decertification movement, en- gaged in a discussion with employee Stone during working hours in April 1950 with regard to the Union . Hendricks admittedly attempted to persuade Stone to support the decertification movement , and considerable discussion ensued when Stone argued on the other side of the question. Shortly after this discussion , Superintendent Sweet called Hendricks to his office. Sweet told Hendricks that he should have known better than to talk union in the shop, and bother the other employees, and ended by telling Hendricks that he was discharged . Finally Manager Brinkman came into the office and got a report from Superintendent Sweet as to what had happened. Brinkman then told Sweet that the company policy was to permit the employees to discuss union matters so long as they did not interrupt their work. Brinkman also told Sweet that he could not discharge Hendricks , who had talked on one side of the ques- tion, and not discharge the other employee who had argued the other side. Brink- man stated that it would be a violation of the Act to discharge only one of the parties to such a discussion . He thereupon rescinded Hendricks' discharge, and Hendricks returned to work. Hendricks then expressed to Brinkman his fear that if Superintenden,'t Sweet ever saw him standing idle around the plant at moments when there was no work to do, he would again be disciplined, and asked Brinkman what he was to do to protect himself against such a possibility. Brinkman suggested that if Hendricks found himself without any work to do he might take a broom and clean up the area around his machine. For 2 or 3 days thereafter, Hendricks engaged in the practice of sweeping whenever he was idle for a short period. Accord- ing to Hendricks, he was "kidded" by other employees for sweeping the floor, WOOD PARTS, INC. 471 and he discontinued the practice as a result of this teasing. Nothing was done by the Company to instruct Hendricks to resume the practice. Hendricks testified further that during the period immediately following the above-described incident, a supervisor of the Company named Frank Smith kept Hendricks under special surveillance by coming frequently into the plant and staring fixedly at him for lengthy periods of time. Smith testified credibly, and I find, that at the said time he was preparing to take over the position of Manager Brinkman, who was transferred to another post, and that he made it a prac- tice to come into the plant to observe its operations in order to familiarize him- self with them. He explained that he had no special interest in Hendricks and did not stare at the latter to any greater extent than he did at the operations in the plant generally. Paragraph 6 (1) of the complaint alleges that Hendricks was discharged on the above occasion "for the reason that he engaged in concerted activity on be- half of the group fostering the decertification petition...." In view of the prompt action of Manager Brinkman in rescinding Hendricks' discharge imme- diately after it was called to his attention, and in categorically setting forth a policy of neutrality on behalf of the Company with respect to permitting em- ployees to carry on union discussion in the Company's plants, I see no merit in the contention of the General Counsel that the above occurrence constituted an unfair labor practice. It is true that Hendricks was momentarily discharged for the brief period between the time that Sweet told him that he was discharged and Brinkman rescinded those instructions. The prompt action of the higher management official in repudiating Sweet's conduct leaves no ground, in my view, for a finding of unfair labor practices based upon the Company's treatment of Hendricks. I am also persuaded that Hendricks was not thereafter discrimi- natorily treated with respect to the amount of work he was required to do, and that he was not kept under surveillance by the Company. B. The discharge of Milford William Frey The discharge of Frey has no connection with the other issues involved in this proceeding, which arise from the conduct of the Respondents in relation to the efforts of some of the Company's employees to change their collective bargain- ing representative. Prey's discharge was admittedly precipitated by the fact that he initiated and had presented to the Respondent Company a certain peti- tion requesting the removal from his department of a crew leader whom he and some other employees found objectionable. The simple issue, then, is whether Frey's discharge was motivated by his participation in legally protected con- certed activities. The facts surrounding his discharge are as follows : Frey entered the employ of the Respondent Company in October 1947. At the beginning of his employment, Frey's job was that of a maintenance man. He was subsequently transferred to a crew working under crew leader Donald Trow- bridge, which was engaged in making repairs to defects in the finished products of the Company. In about August 1949, Frey was made a crew leader in charge of the repair crew for the third shift which had then been initiated in the Re- spondent's plant. In about March of 1050, Frey returned to work in the repair crew under Trowbridge, and remained on that job until his discharge on June 17, 1950. Frey, who in addition to working for the Respondent Company is also the pastor of a church in Cadillac, testified that he found some of the language used and stories told by Trowbridge to the employees objectionable on moral grounds. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some of the other employees in Trowbridge's crew, it is revealed by the record, had objections to Trowbridge on other grounds. He was, in their estimation, rough in his language to the employees when correcting them, inconsiderate, hard to please, and was generally looked upon as an unreasonably hard taskmaster. After some discussion among the employees about their dissatisfaction with Trowbridge as a crew leader, Frey, on June 15, 1950, drafted a petition to the Company requesting that Trowbridge be transferred to another shift, and that the crew leader of the latter be brought in to replace Trowbridge. About 7 or 8 of the employees in the crew, which normally numbered from 5 to 10 members at various times, signed the petition, which was circulated among them by Frey. During the noon hour that clay, Frey presented the signed petition to Chief Steward Orval Seelye of the Respondent Union and asked Seelye to submit it to the Company. According to Seelye, he suggested that Frey drop the matter, but Frey replied that the employees who had signed the petition wished to have it presented to the Company. Seelye then told Frey that if that is what the men wanted he, as chief steward, would do it for them. Seelye than gave the petition to Superintendent Sweet. Sweet turned the petition over to Manager Brinkman. Brinkman, who testified that he considered the presentation of such a petition an infringement of management prerogatives, instructed Superintendent Sweet to discharge Frey. On June 17, 2 days after he had presented the petition to Seelye, Frey was summoned to an office where Trowbridge and Sweet were present. Sweet notified Frey that he was discharged and presented him with his final pay check. Frey then went to Chief Steward Seelye and told him what had happened. Seelye suggested that Frey come in on the following Monday to see Manager Brinkman and said that he, Seelye, would see what could be done. Pursuant to that suggestion, Frey returned to the plant on the follow- ing Monday and he and Seelye went in to speak to Manager Brinkman. Frey protested to Brinkman against being discharged and argued that he had been a good employee. Brinkman then took issue with Frey as to this, and recalled to him many criticisms of his past work for the Company, making clear, however, that these complaints had no bearing upon his discharge" It is undisputed that Brinkman made the final decision to discharge Frey. Brinkman testified at the hearing that he had discharged Frey because Frey was inclined to be lazy, because he had wasted a good deal of time preaching re- ligion to the employees during working hours, and because of other alleged deficiencies in his work. Brinkman further testified that the precipitating reason 22 For example, Archie Miles testified that he had some resentment against Trowbridge because the latter had ordered him to do heavy work , such as lifting, despite the fact that Miles had heart trouble, and had been excused from performing heavy work of that sort by Manager Brinkman . This witness also testified that other employees in the crew also had some feelings against Trowbridge. Frey testified that Trowbridge frequently criticized the employees for allegedly not doing enough work, and that Trowbridge found grounds for such criticisms no matter how hard the employees worked, in short that Trowbridge was too "tough" a crew leader . Frey also testified that Trowbridge indulged in the practice of startling nervous employees by use of such trick devices as concealed buzzers, spiders, snakes , and similar "parlor tricks," to which the employees objected. Earl Heaton testified that he resented the way Trowbridge ridiculed Frey's religious beliefs, and the fact that Trowbridge "at times" drove the employees too hard in the sense of demand- ing too much work from them. Stanley Miles, a witness for the Company, testified that Trowbridge spoke in a "rough" manner to the employees , not in a "pleasant tone of voice." 24 Seelye, a witness on behalf of the Company, testified that when Brinkman recalled to Frey some of his alleged shortcomings as an employee , he made it plain that these short- comings were not the reason for his discharge but that Brinkman was recalling them to Frey in answer to his assertion that he had been a good employee. WOOD PARTS, INC. 473 for Frey's discharge was his participation in thq presentation of the petition to the Company asking for the transfer of Trowbridge, and that Frey probably would have been kept in the employ of the Company, despite his shortcomings as an em- ployee, in the absence of the petition incident; in short, that Frey's circulation of the petition and his presentation of it to the Company through the union steward is the incident that brought about his discharge. It is clear from Brinkman's testimony alone that Frey would not have been discharged but for his activity in connection with the petition asking for the transfer of Trowbridge. It is unnecessary, consequently, to pass here upon the validity of the additional reasons now put forward by the Company in justifica- tion for Frey's discharge.26 In any event, Brinkman's statement to Frey on the occasion of their last conversation, to the effect that the criticisms of Frey's past work had no bearing on the decision to discharge him ; the reason given by Brinkman for his decision to fire Frey in a hearing on Frey's case conducted by the Michigan Unemployment Compensation Commission, and the reason stated by Brinkman in a letter to the Regional Office of the Board, during the investiga- tion of this ease by the Board, all make it plain that the real motivation for the Company's discharge of Frey was its feeling that Frey had presumed upon the prerogatives of management in having the petition presented to the Company. It is clear from the record as a whole, and I find, that the members of Trow- bridge's repair crew, at least most of them, shared with Frey a resentment of the way they were treated by their crew leader. In signing the petition request- ing that Trowbridge be transferred, they were doing "what was closely related to their legitimate interests as employees . . ." and the presentation of a peti- tion to the Company asking that the objectionable crew leader be transferred "was reasonable and temperate conduct by employees who had a real cause for concern, and was clearly within the scope of the kind of concerted activity pro- tected by" the Act 46 I also conclude and find that Frey's conduct in circulating the petition and handing it to the union steward for presentation to the Company constituted action which was initiated and carried out in concert with other employees, and as a result of the fact that Frey, like other employees in the crew, considered Trowbridge to be an objectionable crew leader. This was not a case of an in- dividual employee venting some personal spleen against a supervisor by per- suading other employees to join with him in seeking the supervisor's removal ; it was rather an instance of a group of employees, all having common grievances against their supervisor, seeking to have him transferred. In fact, as Frey testi- fied, and I find, it was employee Archie Miles who first suggested the drafting and signing of the petition. In view of all the circumstances, I conclude and find that Frey was acting within the scope of those concerted activities for mutual aid and protection which are protected by the Act by circulating the petition and asking Chief Steward Seelye to submit it to the Company. It follows that the Company, by discharging Frey for that conduct, discriminated against him in regard to his hire and tenure of employment, to discourage membership in a labor organization," and interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, thereby engaging in 25 Kingston Cake Company, Inc , 91 NLRB 447, 450, remanded to Board for findings not material on this point, by United States Court of Appeals , Third Circuit, Case No. 10427, September 5, 1951. 26Phoenax Mutual Life Insurance Company, 73 NLRB 1463, 1464-1465, enforced, 167 F. 2d 983 (C. A. 7). n It is to be remembered that Frey had the petition submitted to the Company through his union steward. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. C. Concluding findings with respect to the remaining issues The complaints herein allege, and the General Counsel apparently contends, that the Respondent Company since February 1, 1950, and the Respondent Union since January 1, 1950, have committed unfair labor practices by entering into and enforcing contracts containing union-security provisions exceeding "the degree and kind of union security permissible under the proviso set out in Sec- tion 8 (a) (3) of the Act." The union-security clause in force between the Respondents at all times ma- terial herein is set forth in full hereinabove, in connection with my discussion of the execution of the contract dated May 1, 1948. The identical union-security provision was included in all subsequent contracts between the Company and the Carpenters. As can be seen by perusing its language, that clause is somewhat ambiguous, being susceptible to either of the following interpretations: (1) That the Com- pany was required to hire only members in good standing of the Respondent Union, or those who immediately upon being hired would sign an application for membership in the Union, or (2) that membership in the Respondent Union was a condition of continued employment by the Company after an employee com- pleted a probationary period of 30 days in the Company's employ. If the first interpretation be applied, then, of course, the union-security clause would con- stitute a, "closed shop" clause such as is prohibited by the Act. If the second construction be adopted, there is nothing illegal per se about the agreement, since, as is undisputed, the Respondents have been authorized, at all times within the period covered by the complaint, to enter into a legal union-shop agreement, 1. e., one permissible under all the provisions of Section 8 (a) (3) of the Act. The contract clause being ambiguous on its face, we must look to the con- struction placed thereon by the parties thereto, and their practice in enforcing the provision, to determine its legality or illegality. Undisputed evidence in the record reveals that during the time herein material it was the practice of the Company to inform newly hired employees that there was a contract in effect between the Company and the Respondent Union requiring them to become members of the Respondent Union after they had completed 30 days in the em- ploy of the Company, and to ask such newly hired employees whether they had any objection to joining the Union after 30 days. The Company would furnish to the Respondent Union the names of newly hired employees, in order to enable the Union to obtain applications for membership from them. As soon as possible thereafter, usually within 2 or 3 days after the employee had been hired, a steward of the Respondent Union would approach him and obtain from him, if possible, a signed application card for membership in the Union. After the com- pletion of the new employee's 30-day probationary period, he would be inducted into the Union and at that point the Respondent Union would submit to the Company a request that the new member's dues and initiation fees be thereafter deducted from his pay and turned over to the Respondent Union. The proviso to Section 8 (a) (3) of the Act permits employers and unions, when, as here, they are authorized by the employees in a UA election to do so, to enter into contracts requiring membership in the union on or after the thirtieth day following the beginning of employment. The only departure from the strict language of that provision engaged in by the Respondents herein, is that they apparently participated in the practice of asking newly- hired employees to sign an application for membership in the Respondent Union WOOD PARTS, INC. 475 within a few days after such employees were hired. I can perceive no violation of the Act in that conduct. It might be argued technically that the Act makes no provision for permitting the parties to a union -shop contract to ask new employees immediately after their hire to sign application for membership in the contracting union. Here, although the Respondent Company did not itself make such a request of new employees, it apparently acquiesced in the practice whereby the Respondent Union solicited such applications . Neither party to the contract required new employees to become members of the Union until after 30 days had elapsed following the beginning of their employment. I am not persuaded that the Respondent Union's conduct in securing an application card from new employees, so that they could be inducted into membership with a minimum of delay after the probationary period, constitutes any infringement of the rights of employees, or a violation of the Act. The practice engaged in by the parties, demonstrating the interpretation they placed on their contract, amounted to nothing more than asking new employees to indicate whether they would be willing, after 30 days, promptly to become members of the Union, which in any event they were required to do by the unquestionably legal provisions of the contract. There is no evidence that any applicant was ever refused employment by the Company, or any newly hired employee discharged, because of his unwillingness to sign an application card for membership in the Union, or that the Riespondent Union ever asked the Company to take such action. If, at the end of the 30 days, a new employee decided not to become a union member, there was nothing to prevent him from withdrawing his application at the cost of losing his job. That situation is no different from the one prevailing under a conventional union-shop contract which is clearly legal under the Act. Presumably a new employee accepting employment in an establishment subject to a union-shop agreement does so with the expectation of becoming a member of the Union, after 30 days, in order to retain his job. At the end of that period if he decides not to join the Union, he is subject to discharge. What Congress legislated against by its enactment of a prohibition of closed- shop contracts was the arrangement, whereby an employer is restricted in his hiring of new employees to members of the contracting union or those who, in order to be hired, must first become members of that organization. The union-security clause in effect between the Respondents here, as it was inter- preted and enforced by the Respondents, is not tainted by that evil. I conclude and find that the union-security clause in question is legal under the Act, and that the Respondents did not commit unfair labor practices by including it in their contracts or by enforcing it. The complaint against the Company, as amended at the hearing, alleges that the Company violated the statutory rights of its employees by executing with the Respondent Union, and thereafter enforcing, the collective bargaining agree- ments dated June 15, 1950, and July 28, 1950, knowing that there was then pending a question of representation which had been raised by the decertification petition filed by Vincent. In its amended answer the Company alleges that the contracts with the Respondent Union were not "renewed or extended until after the Regional Board had held its decertification election, in which election a majority of the em- ployees voted in favor of" the Respondent Union. The facts with respect to the execution of the agreements in question are clear in the record. The decertification petition was filed on February 6, 1950. That petition raised a genuine question of representation concerning the Com- pany's Cadillac employees, as the Board later held in its Decision and Direction 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Election dated June 26, 1950. On June 15, 1950, the Company entered into an agreement with the Respondent Union, despite its knowledge at the time, as expressed to the Respondent Union, that a question existed as to the duly designated collective bargaining representative of those employees. In the said agreement, the Company extended for at least another year its recognition of the Respondent Union as the bargaining representative of the employees, together with a union-shop agreement. On June 15, when the said agreement was executed, the Board election to determine the bargaining representative of the employees had not yet been held. There can be no doubt, in the light of the foregoing facts, that the Company, by entering into or renewing an agreement with the Respondent Union on June 15, 1950, especially a contract which required membership in that Union as a condition of employment by the Company, "elected to disregard the orderly representation procedure set up by the Board under the Act" and "to arrogate to itself the resolution of the representation dispute" in favor of the Respondent Union" The offense against the Act thus committed by the Respondent Company is aggravated by the facts that, as General Manager Barrowclough himself testi- fied, he knew at the time the June 15 agreement was executed that the question of representation was still pending, and the reason advanced to him by the Respondent Union for pressing for the execution of the agreement at that time was "to show [that] they were still the bargaining agent in the plant." The fact that the Company recognized the Respondent Union as collective bargaining representative of the employees in derogation of the Board's orderly processes, only in response to economic pressure from that Union, is, of course, no defense to the charge that it thereby violated the Act. It is true that by July 28, 1950, when the Company again entered into an agreement with the Respondent Union, the election had been held (on July 18), and a majority of the employees had voted in favor of retaining the Respondent Union as their bargaining representative. But the Company, by illegally enter- ing into the contract of June 15, had before the election rendered potent assistance to the Respondent Union, thus, improperly influencing the outcome of the election. Moreover, as is found below, the Company had, after the filing of the decertification petition, and before the holding of the election, interfered with its employees' free choice as' to whether or not to reject the Respondent Union, by the commission of still other unfair labor practices. The voting in the election, therefore, cannot be deemed to have constituted an expression of the employees' free choice as to their bargaining representative. The election results, consequently, did not resolve the pending question of rep- resentation, and the Company, whose illegal conduct contributed to the in- decisive results of the election, cannot avail itself of those results as a defense to its execution of the July 28 agreement with the labor organization which it had illegally assisted." On the basis of the foregoing and the entire record, I conclude and find that by entering into with the Respondent Union, and thereafter enforcing, the agree- ments dated June 15 and July 28, 1950, the Respondent Company indicated its approval of the Respondent Union, accorded it unwarranted prestige, encouraged 28 Midwest Piping and Supply Co ., Inc., 63 NLRB 1060 , 1070. See also, Crowley's Milk Co., Inc, 88 NLRB 1049, 1050, 1058-1059. 29 The above-stated conclusion is in no way affected, in my judgment, by the fact, which is undisputed by the General Counsel, that copies of the objections to the election were not served upon the Respondents as is required by Section 102.61 of the Board's Rules and Regulations. We are not relitigating here the issues in the representation proceeding WOOD PARTS, INC. 477 membership therein , and thereby rendered unlawful assistance to it, all of which interfered with , restrained, and coerced the Company's employees in the exercise of their rights under Section 7 of the Act . I further conclude and find that by the foregoing conduct the Respondent Company has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act. I have hereinabove made findings of fact with regard to the meeting of em- ployees held in the coffee shop of the Company's plants on July 17, 1950, the day before the election . The meeting was held on company property during working hours ; the employees were instructed to attend it by company supervisors, and the employees were paid for the time spent there. In addition , General Manager Barrowclough of the Company addressed the employees and denounced as untrue a letter circulated among the employees on behalf of the group supporting the decertification petition . At the same meeting , a representative of the Carpen- ters threatened that the employees would lose their jobs if they voted to repudiate the Carpenters as their bargaining representative, and promised to obtain wage increases for them if they voted to retain the Carpenters a0 The Company's conduct as above described necessarily made it a cosponsor of the meeting with the Carpenters in the eyes of its employees , as it was in fact. By lending the Respondent Union the use of the meeting place, by paying the employees for attending the meeting , by instructing them to attend it, and by having its highest managerial official speak there in refutation of propaganda material circulated by the decertification group, it allied itself effectively on the side of the Carpenters in the preelection campaign . Moreover, as a co- sponsor of the meeting, the Company is answerable for the threats and promises made there by the representative of the Carpenters , which no representative of the Company ever repudiated. I conclude and find that by the Company 's conduct in relation to the coffee shop meeting it encouraged , assisted, and contributed financial and other support to, the Respondent Union , and interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (2) and (1) of the Act. It has been found above that Superintendent Sweet of the Company engaged in surveillance of a meeting of the employees who supported the decertification petition, held during the month before the election . It is well established that such surveillance by an employer of the legally protected concerted activities of its employees constitutes an invasion of the rights of employees to carry on such activities free from employer interference, and that surveillance of that character necessarily has the effect of restraining and coercing the employees in the exercise of their statutory rights. Moreover, contemporaneously with its surveillance of a meeting of the employees who were seeking to repudiate the Carpenters, the Company was assisting the Carpenters in many ways , including its participation in the coffee shop meeting described above, which was held to campaign in favor of the Carpenters . In these circumstances, the Company's conduct in interfering with the meeting held by the employees who supported the anti-Carpenters group was another act of assistance to the Carpenters in the preelection campaign . I conclude and find that by the aforesaid surveillance engaged in by Sweet, the Respondent Company interfered with , restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the s° The Carpenters' representative apparently spoke with prophetic vision. On July 28, 1950, 10 days after the election, the Company entered into an agreement with the Car- penters in which it granted wage increases to the employees. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, and encouraged , assisted, and supported the Carpenters , thereby committing unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act " There has been described above the occasion when a group of pro-Carpenters employees left the plant during working hours and attempted to chase away from the plant entrance two men who were distributing circulars advocating repudiation of the Carpenters . The complaint alleges that the Company "per- mitted and encouraged" the employees in question to engage in the said conduct. While the circumstances surrounding this incident raise a suspicion that the group of employees could not have been gathered together and have left the plant during working hours without attracting the attention of some super- visory official, there is no evidence that the Company knowingly permitted the said employees to leave their work for the purpose of interfering with the circular distributors . In the absence of such evidence I shall not find that the Company thereby engaged in unfair labor practices. The recall to work of Vincent, Welsh, and Teets on two occasions in March 1950, and the results thereof, have been described hereinabove in some detail. The evidence clearly establishes that these three employees were entitled to reinstatement in the Company's employ after their layoffs, on the basis of their respective seniority standings and the Company's normal policy of recalling employees to work subsequent to layoffs. It is also clear from the letter sent to the Company by the Respondent Union on March 14, 1950, that the Respondent Union had decided that its members should refuse to work with Vincent, Welsh, and Teets because of the charges then pending against them in the Respondent Union , based on their advocacy and encouragement of the movement among the members of that Union to disaffiliate from the Carpenters and affiliate with the United Mine Workers. The conclusion is impelled , and I find, that the Respondent Union, by notifying the Company that its members would refuse to work with the three employees in question for the reasons given, and by 311 have above held the Company answerable for the illegal conduct of Superintendent Sweet, whose supervisory status is not disputed . The General Counsel contends that Donald Trowbridge, who also engaged in surveillance of the same meeting, occupies a super- visory position with the Company. The facts relating to Trowbridge's duties are as follows : He bears the title of crew leader and is in charge of a crew of from 5 to 10 employees ( the number varying from time to time ) who perform the work of repairing defects in the Company's manufactured products. Trowbridge, according to his testimony, was in general charge of the work of the repair crew, assigning the men to their tasks therein, instructing them in the manner in which repairs were to be made, correcting errors, seeing to it that the men worked diligently and maintained order , instructing new employees in their duties , conferring with Superintendent Sweet as to the suitability of employees for work in the repair crew and the desirability of keeping them in the repair crew or transferring them to other work, and on occasion doing some of the manual work in that department , such as mixing putty, sorting lumber , and the like. According to Manager Brinkman , the Company's crew leaders, including Trowbridge, do not have the right to hire or fire, or effectively to recommend such action, but do have the right to recommend the transfer of employees out of their crews. His description of Trowbridge's duties was in substantial accord with that of Trowbridge, and he explained that Trow- bridge was in charge of the repair crew to the extent of seeing to it that the instructions of the foreman and superintendent were carried out. There is no evidence in the record contrary to the foregoing. I conclude and find that crew leader Trowbridge had none of the authority which would make him a supervisory employee within the definition of the Act ; that he did not have authority responsibly to direct the members of his crew, and that his duties consisted primarily of being a "pusher," i. e., in a routine manner to over- see the work of the crew and to transmit to them the orders of higher authority . In these circumstances , and also because Trowbridge was an active union member, and involved in the union factional dispute, I am not persuaded that his admitted surveillance of the meeting in question should be attributed to the Respondent Company. WOOD PARTS, INC. 479 actually refusing to do so on the two occasions when they were recalled to work, was causing or attempting to cause the Company to discriminate against them in violation of Section 8 (a) (3) of the Act. That section prohibits an employer from discriminating against ' employees in regard to hire or tenure of employ- ment "to encourage or discourage membership in any labor organization...." Here the reason given by the Respondent Union for its demand, in effect, that the Company deny reinstatement to Vincent, Welsh, and Teets, was that these employees had sought to induce the employees of the Company to switch their membership from the Carpenters to the Mine Workers. If the Company were to discriminate against Vincent, Welsh, and Teets in regard to their reinstate- ment, on that ground, it would necessarily be doing so for the purpose and with the effect of encouraging the employees to retain their membership in the Carpenters." As we have seen, the Company actually yielded to the demand of the Respondent Union, and did fail to reinstate Vincent and Welsh on both occasions when they reported back for work8e I conclude and find that by its aforesaid failure to put Vincent back to work on March 16, 1950, and Welsh back to work on March 13, 1950, and by its failure at all times thereafter to reinstate them to its employ, the Respondent Company has discriminated against them in regard to their hire and tenure of employment, to encourage membership in the Respondent Union; has interfered with, restrained, and coerced its employees in the exercise of their statutory rights ; and has thereby encouraged, assisted, and given support to the Respondent Union, by all of which conduct the Respondent Company has engaged in unfair labor practices within the meaning of Section 8 (a) (3), (1), and (2) of the Act 84 8' The proviso to Section 8 (a) (3), which permits an employer to deny employment to an employee, under certain conditions , because of his nonmembership in a labor organiza- tion, does not apply to the situation here under consideration. As is undisputed, Vincent, Welsh, and Teets were members in good standing of the Respondent Union until May 3, 1950. It is clear that the basis of the Respondent Union's demand that the Company deny reinstatement to these employees , during March of 1950 , was their activity in support of the movement to have the employees change their collective bargaining representative. Such activity by employees is plainly within the scope of concerted activities which are protected by the Act. 88 Teets, as has been found, actually failed on both occasions when he was recalled to work, to report to the plant ready for work. I have therefore decided not to make findings that the Company refused him reinstatement . In view of the circumstances surrounding the Company's purported attempts to reinstate Vincent, Welsh, and Teets, which lent to the proceedings on those two occasions almost the appearance of a game of charades, with all concerned making gestures foredoomed to end in the failure of the three employees to regain their jobs, I must admit that I have not arrived at the conclusion to deny a remedy to Teets without some doubts. The applications for reinstatement of Vincent and Welsh proved to be futile. After some consideration, nevertheless, I have concluded that it was incumbent upon Teets to put the Company to the test of whether or not it would have reinstated him, and that his failure to do so precludes me from finding that be was denied reinstatement. 34 The Respondent Company contends that it tried to reinstate these employees, and was precluded from doing so by the fact that it had to choose between sending them home without jobs, and having its plants shut down by the action of the other employees in refusing to work with Vincent, Welsh, and Teets. I am not insensible to the difficult position in which the Company was placed by the pressure asserted against it by the Respondent Union. Nevertheless, it is settled law that economic pressure does not justify an employer in committing unfair labor practices. Moreover, "an employer who acquiesces in the exclusion of employees from its plant by an antiunion or rival-union group will be held to have discriminatorily discharged them. The Act imposes upon an employer the affirmative duty to insure that its right to discharge is not surrendered to any union or antiunion group." Detroit Gasket and Manufacturing Company, 78 NLRB 670, 671 ( and see cases cited therein). 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 19, 1950, as is undisputed, the Company discharged Knapp, Valley, and Curtis, pursuant to the demands of the Respondent Union that they be discharged because they were no longer members in good standing of the Re- spondent Union as a result of their failure to pay the fines assessed upon them by the said Union. Section 8 (a) (3) (B) of the Act explicitly prohibits an employer from discriminating against an employee on the ground of his non- membership in a union, even when there is in effect a valid contract requiring membership in the union as a condition of employment, if the employer "has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Here the grounds communicated to the Company by the Respond- ent Union for demanding the discharge of Valley, Curtis, and Knapp was their loss of membership as a result of their failure to pay fines levied upon them because of their activities on behalf of the disaffiliation movement. Thus, the Company admittedly knew that the Respondent Union had declared these em- ployees to be no longer members in good standing, and was demanding their dis- charge, for some reason other than the failure of the said employees to tender their dues and initiation fees to the Respondent Union's It follows that the dis- charge of Knapp, Valley, and Curtis by the Respondent Company, on May 19, 1950, constituted discrimination against them by the Company, in regard to their hire and tenure of employment, to encourage membership in the Respondent Union, that this discrimination interfered with, restrained, and coerced the employees of the Company in the exercise of their rights under the Act, and that the Company, by such conduct, assisted, encouraged, and supported the Respond- ent Union. By the aforesaid conduct, the Respondent Company engaged ' in unfair labor practices within the meaning of Section 8 (a) (3), (1), and (2) of the Act. The conduct of the Respondent Union with respect to the Company's refusal to reinstate Vincent and Welsh, and the Company's discharge of Curtis, Valley, and Knapp has been described, and certain findings of fact and conclusions of law have been hereinabove made in connection therewith. On the basis of the entire record, I further conclude and find that by demanding that the Com- pany refuse to reinstate Vincent, Teets, and Welsh, and that it discharge Curtis, Valley, and Knapp, and by bringing economic pressure to bear on the Company and the employees in support of these demands, the Respondent Union restrained and coerced the employees in the exercise of the rights guaranteed by Section 7 of the Act, and caused and attempted to cause the Company to discriminate against Vincent, Welsh, Teets, Curtis, Valley, and Knapp in violation of Section 8 (a) (3) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) of the Act. The statements made by a representative of the Carpenters at the coffee shop meeting of employees held the day before the election that if the employees voted to repudiate the Carpenters they would lose their jobs, because the Carpenters would make it impossible for the Company to sell its products, also clearly were intended to, and did, restrain and coerce the employees in the exercise of their rights under Section 7 of the Act. I conclude and find that the Respondent Union thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. The complaint also alleges that the Respondent Union, by "instructing and encouraging certain employees to leave their places of work during working 31 See : Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883. WOOD PARTS, INC. 481 hours for the successful purpose of forcibly ejecting from the vicinity of [the Company's plant] individuals passing out literature" on behalf of the group fos- tering the decertification petition, restrained and coerced the employees in the exercise of rights under Section 7 of the Act. The incident referred to has been described above. There was no showing that the employees who left the plant on this occasion either succeeded in driving the leaflet distributors away from the plant, or threatened to use or did use any violence in their attempt to have the said distributors leave the site. I shall not, therefore, base any unfair labor practice findings against the Respondent Union on this incident. There remains for consideration the contention advanced by the Respondents herein that Vincent, the petitioner in the decertification proceeding, was acting as a "front" for the United Mine Workers of America, an organization which is not in compliance with Section 9 (f), (g), and (h) of the Act. Although not clearly formulated, the argument of the Respondents seems to be that the de- certification proceeding was improperly entertained by the Board for that rea- son, and that for the same reason, no complaint should have been issued in this proceeding. Insofar as the decertification proceeding is concerned, it is not within my province as a Trial Examiner of the Board to go behind the Board's determinations in that proceeding, and to relitigate here the issues therein dis- posed of. The Respondent Company in the decertification proceeding sought to raise the issue of Vincent's alleged "fronting," and was precluded from doing so for reasons stated by the Board in its Decision and Direction of Election dated June 26, 1950, of which I take official notice. I accord to that decision of the Board the presumption of regularity to which it is entitled. Insofar as the issues herein are concerned, I find no merit in the Respondents' apparent contention that the complaint in this proceeding was improperly is- sued, and that the complainants herein are not entitled to a remedy. There is no doubt, indeed, it is undisputed, that Vincent, as leader of the decertification movement, after he became dissatisfied with the Carpenters as the bargaining representative of the employees, sought to persuade the employees to disaffiliate from the Carpenters and to become affiliated with the United Mine Workers. It is also undisputed that from February 1943 to April 1947, preceding his em- ployment by the Respondent Company, Vincent was on the payroll of the United Mine Workers as one of its field representatives. After being laid off by the Company, Vincent was also admittedly put back on the Mine Workers' payroll temporarily, during periods between March and August of 1950. At the time of the hearing he was employed in an industrial plant in the Cadillac area. There can be no doubt that the employees of the Respondent Company, or some of them, having become dissatisfied with the Carpenters as their representative, had a perfect legal right to seek to have the Carpenters repudiated as such representative, and to file a decertification petition with the Board to attain that end. Furthermore, they were within their rights in seeking to have the employees affiliate with the United Mine Workers, or any other labor organiza- tion of their choice. The fact that the United Mine Workers is a noncomplying labor organization did not confer upon the Respondents the privilege of engaging with immunity in unfair labor practices as a means of defeating the employees in the exercise of their right freely to choose their own bargaining representa- tive. The noncomplying status of the Mine Workers results only in depriving that organization, as such, of the privilege of availing itself of the Board's processes. Individual employees victimized by unfair labor practices are not precluded from the benefits of the Board's remedial powers because they pre- ferred the Mine Workers over the Carptenters ae 86 N. L R B. v. Augusta Chemical Company, 187 F. 2d 63 (C. A. 5), enforcing 83 NLRB 53. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Such of the activities of the Respondents set forth in section III, above, which have been found to constitute unfair labor practices, occurring in con- nection with the operations of the Respondent Company 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged and are engaging in unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes and policies of the Act. Having found that the Respondent Company discriminatorily discharged Mil- ford Frey on or about June 17, 1950, Harry L. Curtis, Edwin Knapp, and Kenneth Valley on May 19, 1950, and discriminatorily refused to reinstate to their jobs L. D. Vincent on March 16, 1950, and James M. Welsh on March 13, 1950, I shall recommend that the Company offer these employees immediate and full reinstatement to their former or substantially equivalent jobs,` without prejudice to their seniority and other rights and privileges. It will also be recommended that the Respondent Company make Frey whole for any loss of pay he may have suffered by reason of the Respondent Company's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of the Respondent Company's offer of reinstatement, less his net earnings during that period. Both Respondents being responsible for the discrimination suffered by Vincent, Welsh, Valley, Curtis, and Knapp, it will be recommended that the Respondent Company and the Respondent Union jointly and severally make them whole for any losses of pay incurred by reason of the discrimination, the computation of back pay to be made in the same manner as above directed in the case of Frey. Exact computations in all cases shall be made in accordance with the Board's usual policies: F. W. Woolworth Co., 90 NLRB 289; Crossett Lumber Company, 8 NLRB; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. In accordance with such policies, it will be recommended that the Respondent Company make available to the Board, upon request, payroll and other records to facilitate the computation of the amounts of back pay, if any, owing the aforesaid employees. It will be recommended also that the Respondent Union, having caused the Respondent Company to discriminate against Vincent, Welsh, Knapp, Curtis, and Valley, notify the Company in writing that it has no objection to the nondis- criminatory employment of these individuals, and of Clarence Teets, against whom the Respondent Union attempted to cause the Respondent Company to discriminate. It has been found that the Respondent Company illegally assisted the Re- spondent Union by recognizing it as the exclusive collective bargaining repre- sentative of the Company's Cadillac employees, and by entering into contracts with the Respondent Union, and thereafter enforcing them, at a time when a 87 In accordance with the Board's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position." See: The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. WOOD PARTS, INC. 483 question of representation was pending . Obviously, a free selection of the em- ployees' bargaining representative cannot be made where recognition and con- tracts have been accorded to the Respondent Union at a time when the identity of the collective bargaining representative of the employees was in doubt. I shall accordingly recommend that the Respondent Company cease and desist from recognizing the Respondent Union as the exclusive bargaining representa- tive of the Cadillac employees unless and until the Respondent Union be certi- fied as such by the Board. Since any contracts between the Respondents entered into since the filing of the decertification petition on February 6, 1950, serve to perpetuate the Re- spondent Company's illegal assistance to the Respondent Union, and preclude the employees from presently exercising their right to select a bargaining repre- sentative of their own choice, I shall recommend that the Respondent Company cease giving effect to any such contract or contracts, or to any extension, re- newal, modification, or supplement thereof, unless or until the Respondent Union has been certified by the Board as exclusive bargaining representative of the Company's Cadillac employees. Nothing herein, however, shall be construed as requiring the Respondent Company to vary any wage, hour, seniority, or other substantive features of its relations with the Cadillac employees themselves, which the Company has established in the performance of such contracts, or to prejudice the assertion by the employees of any rights they may have under such agreements. In view of the variety and seriousness of the unfair labor practices found too have been committed by both of the Respondents herein, the commission by them in the future of other unfair labor practices infringing on the rights of the Re- spondent Company's Cadillac employees is reasonably to be anticipated. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby to mini- mize industrial strife which burdens and obstructs commerce, and thus effectu- ate the purposes of the Act, I shall recommend that the Respondents cease and desist from in any manner infringing on the rights guaranteed in Section 7 of the Act. I shall also recommend that the complaints be dismissed insofar as they allege the commission of any unfair labor practices by either of the Respondents, not herein found to have been committed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 894, United Brotherhood of Carpenters and Joiners of America, A. F. L., is a labor organization within the meaning of the Act. 2. Wood Parts, Inc., is engaged in commerce within the meaning of the Act. 3. By discriminating in regard to the hire and tenure of employment of L. D. Vincent, James M. Welsh, Harry L. Curtis, Edwin Knapp, Kenneth Valley, and Milford Frey, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By assisting, encouraging, and supporting the Respondent Union, the Re- spondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 242305-53-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By causing and attempting to cause the Respondent Company to discriminate against Vincent, Welsh, Teets, Curtis , Knapp, and Valley in regard to their hire and tenure of employment, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 7. By restraining and coercing the Cadillac employees of the Respondent Company in the exercise of the rights guaranteed them by Section 7 of the Act, the Respondent Union has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (b) (1) (A) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 9. Neither of the respondents committed any unfair labor practices as alleged in the complaint except those specifically found herein to have been committed. [Recommendations omitted from publication in this volume.] THE LEWIS ENGINEERING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK- ERS OF AMERICA (UAW-CIO) , PETITIONER. Cases Nos. 1-RC-2 9 and 1-CA-1033. November 21, 1952 11 Decision and Order On May 15, 1952, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also rec- ommended that the Union's objections to the election held in Case No. 1-RC-2299 be dismissed. Thereafter, the General Counsel, the Re- spondent, and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed 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, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu. sions, and recommendations, with the following modifications and additions : 1. As set forth in detail in the Intermediate Report, during the 2-week period immediately preceding a Board-conducted election held 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Styles, and Peterson]. The Respondent's request for oral argument is hereby denied , as the record, including the exceptions and briefs, adequately presents the issues and the positions of the parties. 101 NLRB No. 98.