United Automobile, Aircraft and Agricultural Implement Workers of America

LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT, ETC. 111 without union representation. The Board has held that like re- minders by an employer do not constitute interference with an election 6 Accordingly, we find that the Petitioner's objections to the election raise no substantial or material issues and we hereby overrule them. As we have overruled the Petitioner's objections, and as the tally of ballots shows that no collective bargaining representative has been chosen, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 6L. H Butcher Company, 81 NLRB 1184. Also see General Electric Company, 92 NLRB 1132. LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, CIO and Louis R. MILLER. Case No. 13-CB-124. January 12,1953 Decision and Order On July 21, 1952, Trial Examiner Stephen S. Bean issued his Inter- mediate Report in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices in viola- tion of the National Labor Relations Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ' 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 [Chairman Herzog and Members Styles and Peterson]. s The Intermediate Report makes the following minor erroneous statements of fact, which do not affect the validity of the Trial Examiner's ultimate findings nor our con- currence therein: (1) The record does not show that either the union treasurer , Arthur Barrett, or Ralph Bishop appeared at the Thanksgiving meeting; (2) the record does not support the Trial Examiner's statement , in footnote 6, that Edward Eberle's "affidavit" consisted largely of answers to the leading and suggestive questions of Crance and Church; ( 3) with regard to the Trial Examiner's discussion in footnote & of the status of Lacey Shore, the record shows that Shore was not a steward in 1950. 102 NLRB No. 3. 112 DECISIONS OF NATIONAL LAIIOR RELATIONS BOARD Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders the Respondent, Local 57, United Automobile,. Aircraft and Agricultural Implement Workers of America, CIO, its officers, representatives, and agents, shall : 1. Cease and desist from : (a) Causing or attempting to cause International Harvester Com- pany, Fort Wayne, Indiana, its officers, agents, successors, and assigns, to suspend or otherwise discriminate against any of its employees becaue they engage in antiunion activities on noncompany time. (b) In any other manner causing or attempting to cause said Em- ployer, its officers, agents, successors, and assigns, to discriminate against any of its employees in violation of Section 8 (a) (3) of the Act. (c) In any manner restraining or coercing employees of said Em- ployer in the exercise of their right to engage in, or to refrain from engaging in, any or all of the concerted activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Louis R. Miller, William A. High, Emery W. Prather, Saleem M. Abraham, and Samuel G. Greenwalt for any loss of pay and other incidents of the employment relationship which they may have suffered because of the discrimination against them, in the manner described in the section of the Intermediate Report entitled "The Remedy." (b) Post in conspicuous places in its business offices, and wherever else notices to its members are customarily posted, copies of the notice attached to the Intermediate Report and marked "Appendix A.3 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by an official repre- sentative of the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. 8 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." If this Order is enforced by a decreo of a Circuit 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." LOCAL 5 7, UNITED AUTOMOBILE , AIRCRAFT, ETC. 113 (c) Mail to the Regional Director for the Thirteenth Region signed copies of Appendix A, for posting, the Employer willing, at its place of business in Fort Wayne, Indiana, in places where notices to em- ployees are customarily posted. The notices shall be posted for a period of sixty (60) consecutive days. Copies of said notices, to be furnished by the Regional Director for the Thirteen Region, shall, after being duly signed as provided in the preceding paragraph, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order what steps it has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed by Louis R. Miller, an individual , herein called the Charging Party, against Local 57, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. O. (U. A. W.), herein called Respondent or the Union , the General Counsel of the National Labor Relations Board issued a complaint on November 27, 1951, and amendments thereto on December 7, 1951, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the National Labor Relations Act, as amended, 61 Stat. 136 , herein called the Act. In respect to unfair labor practices , the complaint alleges, ( a) that Respond- ent attempted to cause and did cause International Harvester Company, herein called the Employer, discriminatorily to suspend five of its employees ; for the reason that they were allegedly engaged in antiunion activities , and (b) that Respondent threatened , interfered with, restrained , and coerced employees of the Employer, by breaking into and breaking up a meeting of said employees concerned with conditions of employment by using violence and threats of violence. In an answer filed about May 20, 1952 , Respondent denied the commission of unfair labor practices. Pursuant to notice, a hearing was held before me, at Fort Wayne, Indiana, on May 26 and 27, 1952. The Charging Party was present and testified at the hear- ing. The General Counsel and the Respondent Union were represented by coun- sel, participated in the hearing, and were given full opportunity to examine and cross-examine witnesses , and to introduce evidence relevant to the issues. At frequent intervals throughout the hearing the parties argued various features of the case. Briefs have been received from the General Counsel and from Respondent. Upon the basis of the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer at all times material to this proceeding has been a New Jersey corporation, having its principal offices in Chicago, Illinois, and has been engaged i Louis R Miller , William A. High, Emery W. Prather , Saleem M. Abraham , and Samuel G. Greenwalt, herein called complainants. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the manufacture, sale, and distribution of farm equipment, tractors, industrial power units, motor trucks, and related items. It has at all such times operated plants in the States of Illinois, Kentucky, Wisconsin, Indiana, New York, Ten- nessee, and California, and has manufactured motor trucks at its plant in Fort Wayne, Indiana, the only plant involved in these proceedings. In the course, conduct, and operation of its Fort Wayne, Indiana, plant, the Employer has caused products valued in excess of $1,000,000, annually to be transported to places outside the State of Indiana. I find that the Employer is engaged in commerce within the meaning of the Act. II. THE RESPONDENT Respondent is a labor organization within the meaning of Section 2 (5) of the Act and admits to membership employees of the Employer. III. THE UNFAIR LABOR PRACTICES A. Introduction On November 6, 1950, the Employer and the Union entered into a collective bargaining contract which provided in Article II, Section 4, hereinafter referred to as Section 4 or the clause, that : The Company shall take appropriate disciplinary action including dis- charge in any case of an employee who on Company time carries on anti-union activity or who on Company time seeks, directly or indirectly to interfere with the status, membership or responsibilities of the certified Union. The contract contained no union-shop nor union-security provision. On June 3, 1950, the Employer and the Union entered into a noncontributory pension-plan agreement effective July 1, 1950. This agreement runs concurrently with the collective bargaining contract. It provides that the benefits that may become payable thereunder shall be reduced by the amount of benefits payable to employees having service credits under a former "Pension Plan of Inter- national Harvester Company." On November 30, 1950, Charles Schrock, president of the Union, Harold E. Crance, its vice president, and Maurice L. Church, chairman of its bargaining committee and its chief steward, claimed to Terry P. Clarke, assistant industrial relations manager of the Employer, that they were in the possession of evidence that employees, whose names apparently were not supplied on that date, had violated the clause. Clarke suggested that this evidence be presented to manage- ment. Shortly after the first of the following week, Crance and Church supplied the names of the complainants as the alleged violators. Clarke again suggested that the Union furnish its evidence. This was done on December 12, 1950, in the form of interpolated statements of six union members, which statements were stenographically transcribed. B. The Union's contentions and the suspensions Viewed in the light of their aspect most favorable to the Union's contention that there had been a violation of Section 4, these statements, referred to in the record as affidavits, were substantially as follows: George R. Burt-On the day before Thanksgiving, during working hours, Abraham told him "They are going to start an independent union, they lack 500 voters or signers to have an election" ; Prather made no particular comment but rather agreed with Abraham : LOCAL 5 7, UNITED AUTOMOBILE, AIRCRAFT, ETC. 115 David R. Carnall-Before Thanksgiving, during working hours, Miller started in talking about a new contract, claimed it was no good, that there would have to be a different union, stated "we are just being sold down the river," mentioned "We are having a meeting tonight ... there will be a lot of guys there" and invited him to the meeting: Dallas E'. Reppert-High, during working hours and an exchange of "felicitations," said to him (after he had heard about it in the "wash rooms" and when he went to High for confirmation), "we are having a meeting tonight," that "it was something regarding this new union" and that "everyone is invited" : Roy Neuer-Greenwalt about a half hour before closing time said there was going to be a meeting that night, that Neuer should be there and that "we got to have a new union, we have a rotten contract" ; Greenwalt was one "of these guys who pop off down through the plant" : Church-Greenwalt came into Hathaway's office where he was handling a grievance, complaining because he had been assigned to snow shoveling. Church said Greenwalt was a stockman, expressed wonderment as to why Greenwalt should be shoveling snow and informed him he would see what could be done about it. Hathaway evinced hostility toward Greenwalt and the latter said he was going to drop out of the Union, the contract was "lousy," and that the Union had never done anything for him : Edward Eberle-He, Crisman and Prather were getting ready to go home, sitting and talking at the supervisor's desk. Abraham said they were having a meeting on Friday night; that they had a lawyer, a hall, a new charter, and everything and were going to start a new union. Miller has worked for the Employer for 26 years, Prather for 25 years, Green- wait for 28 years, High for 28 years, and Abraham for 24 years. Clarke adverted to the personal history of the complainants and recommended to Crance and Church a written reprimand as a sufficient penalty. The Union' asserted it would be satisfied with nothing less than the discharges of the complainants. Two or three days following January 15, 1951, and after Clarke informed Crance and Church he was going to suspend them, the complainants separately 8 2 Respondent repeatedly throughout the hearing objected to the taking of testimony of the union officers' statements on the ground that such statements were not binding upon the Union. I overruled these objections. Section 2 (13) of the Act provides that: In determining whether any person is acting as an "agent" of another person so as to make such other persons responsible for his acts, the question of iihether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. This Section adopts "the law of agency as it has been developed at common law,, and it is a familiar rule of agency that a principal is responsible for the acts of his agent done in furtherance of the principal's interest and within the scope of the agent's general authority, even though the principal has not specifically authorized, or even if he may have specifically forbidden, the acts in question. It is enough if the principal has actually empowered the agent to represent him in the area in which the agent acted "b See Restatement, Agency, Sec. 228; Tiffany, Agency (2d Ed. 1924), Sec. 38, p. 105; Mechem, Law of Agency (2d Ed. 1914), Sec. 1960. • Senator Taft's statement in his Supplementary Analysis of the Act, 93 Cong. Rec. 6858-6859. b This is also explicit in Senator Taft's Supplementary Analysis, supra, at 6859, wherein he explained that "union business agents or stewards acting in their capacity of union officers, may make their union guilty of an unfair labor practice in the bill, even though no formal action has been taken to authorize or approve such conduct." High was ill in a hospital at this time. His suspension took effect several months later. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were called into Clarke's office where Clarke reluctantly suspended them verbally. A copy of a written memorandum outlining the reasons for their suspensions were given each of them.' Miller, High, Prather, and Abraham were suspended for 30 days ; Greenwalt for 15 days.' C. The facts leading to the Union's complaints to the Employer' Miller, not a union member, had talked by telephone to Prather and High and to Frank Shavely about a meeting which was to be held the night before Thanks- giving 1950, at McCullough Community Hall, which he had been requested to hire. The purpose of this meeting was to find out and discuss whether in some manner the collective bargaining contract could be changed in order that a different pension system paying more money might be obtained. A lawyer had been invited to attend the meeting with the express understanding that the purpose for his attendance was not to organize or assist in organizing any labor union but only to interpret the legal effects of a sample charter, procured by Miller (who considered that it had a bearing on the pension program), from one Gladieux. About seven employees' appeared for the meeting. Among them were Miller High, Abraham, Prather, but not Greenwalt. The attorney arrived, introduced himself to Miller, and the group sat down at a table. As they were talking, before the meeting opened, Union President Schrock, Vice-President Crance, and other union members, including Smith, Burning, the union treasurer, Bishop, Gibson, Stevenson, Steward Don Leach, and Shore,' entered the hall together and began to raise a disturbance. Crance and Schrock were under the influence of liquor. Upon Burning's insistence, Miller handed him the copy of the sample charter. Burning said that it was no good and Miller replied that he was just asked to get it and knew nothing about 4 Crance was present at all these interviews. Church was present at 2 or 3 of the discussions. No evidence was offered as to what was said by any of the complainants, Crance, Church, or Clarke, or as to the contents of the memorandum. i Respondent's motion to dismiss as to Greenwalt, on the ground of failure of proof that he was suspended, is denied on the basis of the credited testimony of Clarke that he was suspended. ' These facts are found upon the credited evidence of the complainants whose demeanor I had the opportunity of observing and who were subjected to confrontation and cross- examination. Insofar as their testimony may be in material conflict with the "affidavits" of Carnall, Stevens, Burt, Reppert, Neuer, and Eberle, I accept their versions of what transpired before the Union complained about them to the Employer. Neither Burt, Reppert, Neuer, Eberle, nor Stevens (whose statements add up to nothing more than High denied soliciting for a different contract), were called as witnesses. In some instances, such as Eberle's, for example, the "affidavits" consist largely of answers to the leading and suggestive questions of Crance or Church. The latter's reflections upon the state- ment concerning Greenwalt are mainly assertions that Greenwalt expressed his dissatis- faction with the Union and the contract-a subject to be discussed later. Carnall who stated on December 12, 1950, "I was approached by Louis Miller and I was invited to the meeting," testified at the hearing that Miller did not ask him to attend the meeting. Finally, the testimony of Night Committeeman Arlo C. Bridge, that Chief Steward Church, told him in the presence of employees Tom Burns, Blackie Graybaugh, Ed Knobloch, and Charlie Nell, that he could not get enough evidence on the complainants "so he got fellows" to testify, lends much significance to the fact that it was not until considerable time after Clarke had suggested on two different occasions that the Union submit evidence of alleged Section 4 violations, and after the Employer's then industrial relations manager had stated that the complainants were at the mercy of the Employer and the Union, before the Union presented what it desired to have considered its proof through the persons of Burt, Carnall, Reppert, Stevens, Neuer, and Eberle. 7 There are about 5,000 employees in the bargaining unit. ° Chief Steward Church testified he was not sure whether or not Shore was a steward in November 1950, that he had been a steward at one time. LOCAL 5 7, UNITED AUTOMOBILE, AIRCRAFT, ETC. 117 it. Another employee from Department 12, who had come in with Schrock, Crance, Leach, Burning, and the others, told Miller he was a "Goddamned liar," whereupon the attorney stated that he saw trouble was brewing and he was going. When Miller denied that he arranged the meeting, he was again called a liar, this time by Crance, and Shore said "I don't want to catch you over in Department 12, or you are liable not to get back again." Whereupon Schrock warned Shore against making threatening remarks. The employees who had arrived for the meeting then began to file out and as Miller went to get his hat, Crance and Shore grabbed him, sat him down in a chair and said "Come on. Let's hold this meeting. Come on, we are going to hold this meeting. What is the matter with you?" Miller stated that they were holding no meeting. Crance and Shore continued to hold him down in the chair for awhile, until he got up and walked over to get his hat. After he had gone out the door, Union President Schrock told Miller that he liked him, that if the Union had him in their outfit he would do a lot of good, invited him to a Thanksviging turkey dinner the next (lay, and stated he would buy him a turkey. Miller de- clined the offer, a decision he was later to regret. These episodes occurred within about three-quarters of an hour and no meeting such as planned was held. Contrary to Carnall's statement, Miller did not tell Carnall during working hours that they had to have a different independent union; nor in fact did the two men engage in any conversation. Prather had talked to Abraham by telephone and to Miller who called him one evening about the proposed meeting concerning pensions. He went to the hall. He was sitting by himself and after Crance and the others with him came in, Crance said to him, "go ahead and have your meeting." Prather replied he guessed it was Crance's meeting as much as his. At no time did Prather make any statements on company time to employees in regard to having an independent union (it is to be noted that the only "evidence" offered against Prather on December 12, 1950, was that he "said nothing but more or less agreed to the independent union"). High discussed attending the proposed nieet,ng with Miller over the telephone or at Miller's home. As he was on his way to lunch, he passed by Heliport's machine, Reppert, who had heard about it in the wash- rooms, asked him if a meeting was going to take place. High replied in the affirmative and stated that the pension plan was going to be discussed On the afternoon before the meeting while he was in the crib getting tools, Abraham, in talking to Prather, referred to the fact that there was going to be a meeting After lie left the crib, Burt, whom lie had never seen until that time, asked hint something about how he liked his work. Abraham told Burt that the work was all right but that the contract was no good. He also told Steward Dori Leach that he had said the same thing to other employees. Con- trary to Burt's statement, Abraham did not mention anything about an inde- pendent union. At 3: 2:i p. m. after he was through working and had put his time slip in a box, Abraham told Eberle, with whom he had associated on the job for 10 years and who was not then at work, that a meeting was to be held that night. Contrary to Eberle's statement, Abraham did not tell him that they were going to start a new union or talk about an independent union. Abraham went to the hall where the meeting was to have been held Greenwalt, a union member, told Neuer, about 3 o'clock on the (lay on which the evening meeting was supposed to have been held, that there was going to he a meeting and a discussion of the contract. Neuer wanted to know where the meeting was going to be held and Greenwalt told him. In response to Neuer's inquiry as to the purpose of the proposed meeting, Greenwalt stated that many people were dissatisfied with the weak points of the contract, that they did not know 250983-vol . 102-53-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where they stood, that they only knew about the contract from the stewards, that nobody else could read and understand it, so they were going to have a meeting and discuss it. Contrary to Neuer's claim , Greenwalt did not say that there had got to be a new union. Greenwalt did not attend the meeting D. Discussion-conclusionary findings 1. Discrimination It is well established that an employer's acquiescense or succumbing to pres- sure in allowing a labor organization effectively to participate in an employer's control over employment to such an extent as to accomplish discharges or sus- pensions of employees from work, is violative of Section 8 (a) (3) of the Act where no lawful contractual obligation for such submission exists. It is equally well settled that the conduct of a labor organization in causing or attempting to cause an employer to discriminate against employees in violation of Section 8 (a) (3) is violative of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. For example, the Board has found the conduct of labor organizations in requesting and demanding the discharge or suspension of employees from work for such reasons as : (1) an employee's failure to attend a union meeting, Hunkin-Conkey Construction Company, 95 NLRB 433; (2) an employee's refusal to join a union, White Oak Park, 98 NLRB 376; and (3) employees' circulating a petition pro- testing against a union's method of selecting a shop steward, Air Products, Inc., 91 NLRB 1381, constitutes violations of the Act. The crucial question in this case is whether or not section IV obliged the Employer to submit to the Union's request and demand that it take disciplinary action against the complainants. The answer to this question depends upon a determination of whether or not the complainants, or any of them, on company time, carried on antiunion activity or sought to interfere with the status, membership, or responsibilities of the Union. If the Respondent caused the Employer to suspend its employees for reasons other than participating on company time in antiunion activities or seeking to interfere with the Union, it is clear that a violation of Section 8 (b) (1) (A) and 8 (b) (2) took place. Miller, High, Prather, Abraham, and Greenwalt are senior employees. For them the heat of the day will soon be over. They were concerned with their retirement rights which, correctly or otherwise, they apprehended had been diminished by the action of the Union in making a new agreement on Novem- ber 6, 1950. As testified by Greenwalt and Miller, since they did not know where they stood and could not understand the contract it was decided to hold a meet- ing to discuss the subject, and to find out whether the agreement might be changed in order that a pension system paying more money might be obtained. This concern and decision upon the part of the older employees became gen- erally known. Burt had heard discussions that came through the grapevine among the em- ployees as to what was happening, Reppert had heard washroom rumors, Stevens had heard there was to be a meeting and that there was to be another. Reppert had asked High if there was going to be a meeting and Neuer had asked Greenwalt where the meeting was going to be held and about its purpose. Abraham had told Burt and Leach the contract was no good and that he had said so and had told Eberle, after he was through working and had deposited his time slip, that a meeting was to be held that night. Greenwalt, regarded by the Union as a pusillanimous critic, in a disturbed mood had told Chief Steward Church he was LOCAL 57) UNITED AUTOMOBILE, AIRCRAFT, ETC. 119 going to drop out of the Union, that the contract was no good, that the Union had never done anything for him and was no good. Obviously all this became promptly known to the officers of the Union and accounts for the mass invasion of the Thanksgiving eve meeting. The request to penalize soon followed. Did the Union genuinely believe that these oldsters while at work had carried on antiunion activity or interfered with its status, membership, or responsibil- ities? Or were its real motives in bringing about their suspensions, objection to the meeting and disapproval of criticism and free discussion? Was the Union fearful that some members might resign ; did it resent the fact that some em- ployees had refrained from membership? So frequently, he who is not with you is against you. The Board has said:9 We do not believe the intent or purpose of the amended Act is to foreclose employees from questioning the wisdom of their representatives or from taking such steps as they deem necessary to align their union with their- position .... The discharge of a dissident within a union when that termination is motivated by a desire to eliminate protest must inevitably result in an infringement under Section 8 (a) (1) and 8 (a) (3) of that employee's right to self-organization. We believe that inherent in that right is the privilege of protest and persuasion of others. Without this, effec- tive employee representation becomes a nullity. Fair criticism is the right of employees in a bargaining unit as it is the right of every citizen. The lesson of experience in a democracy devoted to the prin- ciples of freedom of speech and recognition of the rights of minorities, is that organizations tolerant of unimpeded utterances to every opinion, receive accept- ance by the community or else sink into oblivion. I have no doubt on the facts in this case that the first question posed must be answered in the negative ; the second and third sets answered in the affirmative. It is clear that inquiries about the meeting and its purpose were made of some of the complainants. To hold that replies to these inquiries constituted antiunion conduct or interference with the Union would be little short of absurd. To con- tend otherwise would be to adopt the position that employees could only avoid a penalty, including discharge, by refusing to answer. The courts do not ap- prove the imposition of such a "harsh rule of silence." N. L. R. B. v. Olin Industries, The., 191 F. 2d 613. True it is that on company time Abraham reminded Prather, one of the other complainants to whom he had also talked by telephone, of the meeting and that Greenwalt told Neuer a meeting was to be held that night. (There is nothing in Miller's testimony quoted in Respondent's brief that warrants a finding that Miller talked to Prather, High, or Shavely on company time.) Apart from criticisms of the Union and its contract and a threat to resign (which was not carried out)-which Respondent apparently asserts constituted conduct covered by section IV but which I consider did not amount to antiunion conduct or interference with the Union within a fair meaning of the clause-the only "violations" left are these two casual and passing references to the fact that a meeting was to be held. Based on the actual facts, the triviality of Respondent's charges at once becomes readily apparent. At no time on company time (even Abraham's talk with Eberle occurred on Abraham's own time) did any of the ONu-Car Carriers, Inc, 88 NLRB 75 ( enfd . 189 F. 2d 756 (C. A 3) ; cert. den. 342. U. 8. 919). 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complainants indulge in any persuasion, nor urge among the Employer's 5,000 employees, attendance at the meeting. Consequently in my opinion it would distressingly torture the intent of the clause, to rule on all the evidence in the case, that either Abraham or Greenwalt in their off-hand mentioning to Prather and Neuer that there was going to be a meeting, thereby engaged in antiunion activity or interfered with the Union. The law does not care for minimalities. It is my firm conviction that the complainants did not in fact engage in the type of conduct reasonably contemplated in the clause as sufficient cause for disciplinary action 10 I am equally convinced that Respondent moved to secure the imposition of penalties upon the complainants for the reason that they were critical of the Union, either threatened to resign from or refrained from joining the Union and that they arranged for the holding of a meeting, which but for the intervention of union officers and members, it believed or feared would have tended to weaken or diminish the prestige of the ITnion, and that Respondent's claim that employees engaged in conduct requiring the Employer to take disciplinary action under section IV was a pretext used by Respondent to conceal its true motives. But, says Respondent, even if the suspensions were brought about for reasons other than those ascribed, still there can be no finding of a violation of the Act because there is no proof that the suspensions, even if discriminatory, encouraged membership in the Union. I find no merit in this contention. It is enough to show that the discrimination was sufficient to have a natural or predictable tend- ency to encourage union membership." Respondent's success in causing the Employer to impose penalties on employees whose attitude was objectionable to the Union could not fail to impress all employees with the fact that the Union was a potent organization whose assistance is to be sought and whose opposition is to be avoided. Consequently Respondent's conduct was clearly calculated to encourage all members to retain their membership and all nonmembers to join the Union through fear of the consequences of incurring the displeasure of the Union. Moreover, it is of no little significance in this case, which is readily distinguish- able in its facts from the case cited by Respondent," that the Union which had twice insisted that it would be content with nothing less than the discharge of all the complainants did not demur at the disparity of treatment between that ac- corded Miller proved to be a nonunion employee, High, Prather, and Abraham- not shown to be union employees,'3 all four of whom attended the meeting, and 10 This being so, it seems unnecessary to pass on the matter of the validity or legality of the clause But who cannot humbly repeat as he writes one of these reports, "We have done those things we ought not to have done and we have left undone those things we ought not to have done and there is no health in us?" It perhaps should be pointed out, then, that "Congress provided expressly that the Board should not pass upon the desira- bility of the substantive terms of labor agreements." N L R. B. v. American National Insurance Co , 343 U. S 395. "General Motors Corp, 59 NLRB 1143, enforced 150 F 2d 204 (C A 3). 'IN. L R. B. v. Del E. Webb Construction Company, 196 F 2d 702 (C A 8) Webb followed N. L. R B. v. Reliable Newspaper Delivery Company, Inc, 187 F 2d 550 (C. A 3). On June 24, 1952, the United States Court of Appeals for the Second Circuit in N. L. R. B. v Gaynor Neu a Company found itself in disagreement with the third circuit's conclusion, in Reliable, regarding the lack of connection between discrimination and encouragement of union membership 1s The stipulation that Greenwalt has been and remains a member in good standing was made after the General Counsel had rested Although there was no direct evidence concerning the status of High, Prather, and Abraham, the inference is strong that they were not among the 3.800 union members of the Company's 5,000 Fort Wayne employees. Inclusio unius eat exclu8io alteriua. LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT, ETC. 121 Greene alt-a proven union member who did not attend the meeting. Accepting, arguendo, the truth of the December statements, it is clear that the former four, if they engaged in any conduct on company time that could be even remotely con- strued by the barest scintilla of evidence as antiunion or interference with the Union, were no more in delict than Greenwalt. Yet their suspensions were for twice as long as Greenwalt's." There can be no reasonable doubt that the story of this entire drama in Ns hick so many actors participated became widely known throughout the plant. It would not require much soul-searching upon the part of anyone who heard of the disparity of treatment between union and nonunion employees and those who went to and did not go to the meeting, to figure out for himselt the proximate effect and desirability of adherence and subservience to the Union. To believe otherwise would be to close one's eyes to the realities of organizational methods. 2. Restraint and coercion Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor organization or its agents "to restrain or coerce employees in the exercise of the rights guaranteed in Section 7." Section 7 guarantees employees the right to join or assist labor organizations and to engage in concerted activities directed toward self-organization or collective bargaining and also the right to refrain from any of such activities except under a lawful union shop agreement. It is well established that where a union's conduct involves intimidation, vio- lence, threats thereof or related conduct, a violation of Section 8 (b) (1) (A) arises. Thus the Board has found that such conduct as the following falls within the statutory prohibition against "restraint" or "coercion": (1) the use of threatening language by groups of strikers to nonstrikers, The North Electric Manufacturing Convpany, 84 NLRB 136, Smith Cabinet Manufacturing Company, 81 NLRB 886, Perry Norvell Company, 80 NLRB 225; (2) a union agent's state- ment at an organization meeting that employees who did not join the union "would eventually lose their jobs." Seamprufe, Incorporated, 82 NLRB 892; (3) a union's telling employees they were "fired" because of activities "against . . . or harmful to the union" ; Teamsters Local 641 and Air Products, Inc., supra, 91 NLRB 1381; (4) a union representative's statement "that wives and children of employees had better stay out of the way if they didn't want to get hurt," United Mine Workers of America, et at., 90 NLRB 436; (5) threats and assaults upon a plain-clothes law enforcement officer in presence of em- ployees, UMW Distrtict 2, et al., 96 NLRB 1389; and (6) a statement by a union agent to an employee who had signed a decertification petition that he would not be able to get a job in the city, Brotherhood of Painters, Decorators, and Paperhangers of America, AFL, 97 NLRB 654. The Union's conduct including and following its uninvited entrance into McCullough Community Hall was chiefly directed against Miller whom it con- sidered, despite his denials, responsible for arranging a meeting. Before those assembled had had an opportunity formally to start the meeting, the group in- cluding the Union's president, its vice president, its treasurer, and past or present stewards, some of whom were intoxicated, came into the hall and began to raise a disturbance. The treasurer took the charter which was in Miller's possession because of his belief it had a bearing on the pension question, a con- 74 This very fact furnishes a striking indication that Respondent was mainly motivated by the attendance at, and the calling of, the meeting and its belief, as announced by Newer, that more were likely to be held, by employees' unwillingness to support the Union and their interest in a different pension plan, rather than by anything that took place, or it claimed took place, in the shop. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sideration of which was the purpose of the meeting, and announced that it was no good. Miller was cursed, called a liar, and threatened with harm if he were caught in a certain department of the plant. Prather was exhorted to go on with a meeting. As this was going on, the attorney with whom the men desired to discuss their problems, detecting danger, decamped and employees started to seek refuge. Then Miller was forcibly seated in a chair and held there. Under these ominous straits, this elderly gentleman was ordered to start the meeting. Finally, the union president presciently perceived that matters had gone dangerously far. Presages of peril melted into allurements of advantage. But the undaunted Miller was neither dissolved by terms of affectionate esteem nor converted by gustatory blandishments. The meeting was concerned with conditions of employment. The intrusion of the Union resulted in its abandonment. The exhibitions of intimidation and vio- lence upon the part of its officers, and members in their presence, inevitably had a coercive effect upon the employees exposed to the incident. Plainly the Union's conduct involved intimidation, violence, and threats thereof, all directed against and in derogation of employees' right to refrain from joining or assisting the Union. E. Ultimate conclusions In view of all the above, I conclude and find that the suspension of the com- plainants encouraged membership in the Union, and was therefore violative of Section 8 (a) (3) and 8 (a) (1) of the Act. I conclude and find that Respondent caused or attempted to cause the Employer to discriminate against its employees in violation of Section 8 (a) (3) of the Act. I conclude and find, therefore, that Respondent violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. I further conclude and find that Respondent threatened, interfered with, restrained, and coerced employees of the Employer by its conduct at a meeting concerned with conditions of employment. I conclude and find, therefore, that Respondent also independently violated Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that, in order to ef- fectuate the policies of the Act, it shall make whole Louis R. Miller, William A. High, Emery W. Prather, Saleem M. Abraham, and Samuel G. Greenwalt for any losses of pay and incidents of the employment relationship which they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount they normally would have earned as wages during the periods of their suspensions, the losses of pay to be com- puted upon the basis established by the Board in F. W. Woolworth Company, 90 NLRB 289. I shall further recommend that Respondent shall deduct from the amounts due Louis R. Miller, William A. High, Emery W. Prather , Saleem M. Abraham, and Samuel G. Greenwalt such sums as would normally have been deducted from their wages by the Employer for deposit with State and Federal agencies on account of social security and other similar benefits and to pay LOCAL 5 7, UNITED AUTOMOBILE, AIRCRAFT, ETC. 123 to the appropriate State and Federal agencies, to their credit and to the credit of the Employer, sums of money equal to the amount which, if there had been no discrimination, would have been deposited to their credit by the Employer either as a tax upon the Employer or on account of deductions made from their wages by the Employer, on account of social security as other similar benefits.'b Respondent's violations of the Act are presuasively related to other unfair labor practices proscribed theremy, and the danger of the commission in the future of other unfair labor practices is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, I shall still further recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact, and upon the entire record of the case, I make the following : CONCLUSIONS or LAW 1. The operations of the Employer occur in commerce, within the meaning of Section 2 (6) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing and attempting to cause the Employer to discriminate against employees in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 4. By restraining and coercing employees in the exercise of the rights guar- anteed in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE To ALL MEMBERS OF LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., AND TO ALL EMPLOYEES OF INTER- NATIONAL HARVESTER COMPANY AT FORT WAYNE, INDIANA Pursuant to the recommendations of a trial examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause INTERNATIONAL HARVESTER COM- PANY, its officers, agents, successors, or assigns to suspend or otherwise dis- criminate against any of its employees because they engage, on noncompany time, in activities opposed to or disapproved by LOCAL 57, UNITED AUTOMO- BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0. WE WILL NOT In any manner restrain or coerce employees of INTERNA- TIONAL HARVESTER COMPANY, its successors or assigns, in the exercise of their "Pen and Pencil Workers Union, Local 19593, AFL (Wiiheimina Becker), 91 NLRB 881. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawful right to engage in, or to refrain from engaging in, any or all concerted activities guaranteed in Section 7 of the National Labor Relations Act. WE WILL make whole the following employees for any loss of pay and other incidents of the employment relationship suffered because of the discrimina- tion against them : Louis R. Miller Emery W. Prather William A. High Saleen M. Abraham Samuel G. Greenwalt LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0. Labor Organization. By----------------------------------------- (Representative) (Title) Dated----------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. RADIO CORPORATION OF AMERICA (RCA VICTOR DIVISION and IN- TERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS of AMERICA, CIO, PETITIONER. Case No. 35-RC-717. January 12, 1953 Decision and Order On July 10, 1952, an election among the Employer's hourly paid production and maintenance employees was held pursuant to a stipu- lation for certification upon consent election executed June 25 by the Employer, the Petitioner, and Local Union 1048, International Broth- erhood of Electrical Workers, AFL, the Intervenor. Out of 4,434 valid votes, 1,318 were cast for the Petitioner, 3,059 for the Intervenor, and 57 for no union. The Petitioner filed timely exceptions to conduct affecting the re- sults of the election, alleging various acts of interference and coercion on the part of the Employer, as to which later, upon investigation, it produced no evidence. In addition, it alleged as an objection cer- tain occurrences admitted by the parties, including announcement on the eve of the election that the Wage Stabilization Board had ap- proved a wage increase. Petition for this increase had been filed with the Wage Stabilization Board on June 23, 1952. It was agreed to by the parties-the Employer and the Intervenor-in connection with a contract effective May 26, 1952, negotiated after the filing by Petitioner of the March 31 petition.' ? The Employer and the Intervenor have maintained contractual relations for approxi- mately 15 years . The petition herein was timely with respect to expiration of the previous contract between the parties. 102 NLRB No. 17.