P. R. Mallory & Co., Inc.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, the unit finding in the Board's October 21, 1954, De- cision, Order, and Direction of Election, insofar as it refers to Radio Station WKAQ, is amended to exclude controlmen, announcers, and scriptwriters, and to read : We find that all employees of Radio Station WKAQ working on radio programs, including those on Colgate-Palmolive Company sponsored programs in the San Juan, Puerto Rico, area, as fol- lows : Actors, actresses, sound effects men, disk jockeys, directors,, masters of ceremonies, narrators, commentators, and recorders,, but excluding all other employees, office clerical employees, ad- ministrative and professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In addition, we direct that any employees who would have been eligible to vote in an election held pursuant to the WNEL unit find- ing in our October 21, 1954, Decision, Order, and Direction of Elec- tion and who have, subsequent thereto, become employed by WKAQ in similar capacity, or have been broadcasting over Station WKAQ in similar capacity, shall be permitted to vote in the election held in said unit of WKAQ employees, as amended, subject, however, to challenge concerning their said eligibility. In addition, the said direction of election of October 21 is hereby amended by substituting the words "but not later than 90 days from the date of this Direction" for the 60-day period now appearing therein. P. R. MALLORY & CO., INC. and MAYME DIETZ INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, LOCAL 1001 and MAYME DIETZ. Cases Nos. 35-CA-508 and 35-CB-124. January 5,1955 Decision and Order On August 9, 1954, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent Employer had engaged in and was engaging in cer- tain unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act, and that the Respondent Union had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act, and recommending that the Respondents cease and desist therefrom and take certain affirmative action, ,as set forth in the copy of the Intermediate Report attached 111 NLRB No. 4. P. R. MALLORY & CO., INC. 39 hereto. Thereafter, the Employer and the Union (herein also called the IUE) filed exceptions to the Intermediate Report, and the Em- ployer filed a supporting brief. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications : The Trial Examiner found that the Employer discriminated against Mayme Dietz in violation of Section 8 (a) (3) and (1) of the Act by laying off and then discharging her after its employees, prompted by the IUE, refused to work with her because of her nonmembership in the Union, and that the IUE violated Section 8 (b) (2) and 8 (b) (1) (A) by causing the Employer to so discriminate against Dietz. The Employer excepts to the Intermediate Report chiefly on the ground that the evidence does not support a finding that the Employer had knowledge of the illegal motive behind the employees' objection to Dietz. The Union excepts on the ground that the evidence does not support a finding that it was responsible for the work stoppages. There is no substantial disagreement as to the facts more fully set forth in the Intermediate Report. Mayme Dietz was hired by the Employer as a production worker in 1943. In 1944 she joined Local 1001, which represents the production workers and which at that time was affiliated with the UE, and was a steward in that organization for 3 or 4 months in 1947 or 1948. In November 1949 the plant em- ployees, numbering about 2,000, disaffiliated from UE and affiliated with the IUE. However, Dietz was not admitted to membership in IUE. In 1950 the Employer returned to Dietz the money it had de- ducted as her union dues since November 1949, stating that it had been advised by the IUE that she was not a member.' In October 1951, Plant Superintendent Whisler notified the em- ployees of a layoff. The following day when Dietz and Edna Rodgers, who also was not a member of IUE, reported for work, the other employees engaged in a work stoppage. One of the stewards told Rodgers it was not right for her and Dietz to be working while union members are being laid off. Whisler took Dietz and Rodgers off the floor, and IUE President Sullivan told the employees that the stop- page was not authorized and was a violation of the contract, and that future recurrences would be their own responsibility. Dietz and Rodgers thereafter resumed working, and other employees were laid off. 1 The contracts between the ME and Employer have not contained union-shop provisions. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dietz continued working until May 1953 when she went on sick leave for 4 months. During her absence, employee Harrington took her job. Dietz returned to work on September 15, 1953, making it neces- sary for the Employer to lay off an employee. During the morning of September 15, employee Adney heard Davis, IUE steward over the department in which Dietz worked, tell Harrington and several other employees, "If she [Dietz] takes this job, she will be bumping another girl and she's in the union and Mayme isn't." Davis also told employee Berkholz that "we were going to stop work at 1 o'clock, and we didn't want to work with [Dietz]." When Dietz returned to her machine after lunch that day, all employees on the floor, numbering about 400, stopped work. A crowd gathered around Dietz, saying they would like to be like Dietz and "wouldn't have to pay union dues and still al- ways to be sure of a job." Steward Davis saw employee Adney still sit- ting at her machine and told employee Berkholz to tell Adney that she had better stand if she knew whas was good for her. Dietz heard IUE Steward Fox tell an unidentified employee to stand up and "let them know you are not intending to work." Superintendent Whisler and the foremen were on the floor or at the timekeeper's desk in the center of the room at this time. Whisler asked IUE Chief Steward Freeman the reason for the stoppage but Freeman replied that he did not know. Whisler asked the employees the same question and re- ceived no reply. He notified Kertis, the Employer's manager of em- ployee and community relations, of the stoppage, and then addressed the employees, saying "Now I don't know what this is all about, but I've got a damned good idea. I'm asking you people to go back to work as of now, or I'm ringing you out as of 1: 00." The employees did not resume working, so Whisler told the timekeeper to stop their pay. Dietz then approached Whisler at the timekeeper's desk and told him she was afraid she might be hurt, so Whisler sent her to his office, ac- companied by Foreman Stull. The crowd followed, and gathered in the hall outside Whisler's office, shouting "let's throw her out." Whisler and Freeman telephoned IUE President Sullivan at the• Union's office. Whisler asked him to come to the plant, but Sullivan did not appear. Whisler sent Dietz home about 2: 30 p. m. He then told Freeman that Dietz had gone home and Freeman, accompanied by Supervisor Gilpin, talked to the employees and they resumed work. Kertis investigated the stoppage to the extent of discussing it with Plant Superintendent Whisler and Supervisor Gilpin. He did not discuss it with Dietz's foreman, nor IUE officials, nor the employees who engaged in the stoppage. On Kertis' order, Dietz was instructed on September 21 to return to work the next day. Dietz returned to work on September 22. Employee Berkholz heard IUE Steward Mutchler inform some employees that morning that Dietz was returning and that they were going to stop work again. P. R. MALLORY & CO., INC. 41 As soon as Dietz started to work the employees immediately ceased working and gathered in a crowd around her. Acting Superintendent Gilpin asked the employees to return to work and threatened to cut off their pay. When the employees did not do so, Gilpin, on instruc- tions from Kertis, told Dietz to report to the personnel department where she was told to go home until the matter could be straightened out. The employees went back to work about 30 minutes after the stoppage began.2 Although Dietz inquired on several occasions about returning, Ker- tis would not permit such action "for your safety and your benefit," and because "it was part of my responsibility to see that employees were protected from violence or harm." On December 7, 1953, Kertis learned that on November 4 Dietz had obtained employment elsewhere and he terminatedoher connection with the Employer for the reason that she "quit with notice." The Employer made no further investigation of these incidents. Manager Kertis, Superintendent Whisler, and Foreman Stull testified that they never found out the reason for the stoppages. Kertis fur- ther testified that although there had been "at least a dozen" work stoppages at the plant within the preceding year, there had been only one previous stoppage "where the purpose or object of the stoppage was the same as the stoppages on September the 15th and 22d," but "we never did ascertain as to what it was all about." 1. We agree with the Trial Examiner that the evidence clearly establishes that the reason for the employee pressure on the Employer to discharge Dietz was the fact that she was not a member of IUE. We also agree, in view of the testimony set forth above, that IUE Stewards Davis, Fox, and Mutchler played leading and directing roles in the demonstrations. We find that the IUE thereby caused the Em- ployer to discharge Dietz because of her protected nonmembership in the IUE, in violation of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. 2. We also find, ii agreement with the Trial Examiner, that the facts of this case preponderate in favor of finding that the Employer was well aware of the reason for the employees' objection to Dietz. Although there is no direct evidence of such knowledge by the Em- ployer, we believe that the following circumstances compel an infer- ence of employer awareness of the motive behind the stoppages : (1) The Employer knew that Dietz had been a member of the UE, and that after the schism in 1949 she was not a member of the IUE; (2) in 1951 the employees had strenuously objected to her retention while IUE members were being laid off; (3) responsible company officials were on the production floor in September 1953 when the em- 2 Employees who engaged in the stoppage were docked in pay for September 15, and were sent warning notices for the September 22 stoppage. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees crowded around Dietz and taunted her for her nonmembership in the IUE; (4) the plant superintendent told the employees gathered there that he had a "damned good idea" what it was all about; and (5) the Employer, in its so-called investigation of the stoppages, failed to call on Dietz's immediate supervisor, IUE officials, or any of the participating employees.3 Under these circumstances, we conclude and find, in agreement with the Trial Examiner, that the illegal motivation behind the em- ployees' determination to exclude Dietz from the plant was known to the Employer, and by acquiescing therein the Employer laid off and in effect discharged her in violation of Section 8 (a) (3) and (1).4 THE REMEDY We shall modify the remedial recommendatl'ons of the Trial Examiner to conform with the Board's usual practice, as follows : We shall order the Respondent Union to notify Mayme Dietz, as well as the Employer, in writing, that it withdraws all objections to her employment. The Respondent Union shall not be liable for back pay accruing after 5 days from its notification to the Employer and Dietz. Copies of the union notice shall be posted in the Employer's plant, the Employer willing, as well as in the union office and meeting hall. Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that : I. The Respondent, P. R. Mallory & Co., Inc., Indianapolis, In- diana, its officers, agents, successors, and assigns, shall: A. Cease and desist from : (1) Encouraging membership of its employees in International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, or in any other labor organization, by discharging any of its employees 3 We find it unnecessary to rely, as did the Trial Examiner, on Foreman Stull's alleged knowledge of the employees' motivation. 4 Newton Brothers Lumber Co., 103 NLRB, 564, enfd 214 F. 2d 472 ( C. A. 5). The deci- sion in Progresseve Mine Workers v N. L. R. B, 187 F 2d 289 (C. A. 7), reversing in part 89 NLRB 1490, cited by the Employer, is clearly distinguishable on its facts. There, two employees who were engaged in rival union activity remained away from their jobs after being threatened by union officials . Unlike the present case, the employer in that case did not know the reason for their absence because , as the court specifically stated, the unions demonstrated their discriminatory motives only "on locations far removed from the prop- erty of the Company" and not within the presence or hearing of any Company official." Moreover, the employer took no action against them, nor did they request the employer to take any action on their behalf. In view of our finding that the Employer had actual knowledge of the reason for the stoppage in the present case, we find it unnecessary to pass on the Trial Examiner's ref- erences to the Employer 's liahility in the absence of knowledge. P. R. MALLORY & CO., INC. 43 or in any other manner discriminating in regard to the tenure of em- ployment or terms or conditions of employment of its employees. (2) 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 any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes 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 in the manner and to the extent authorized in Section 8 (a) (3) of the Act. B. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Offer to Mayme Dietz immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other rights and privileges. (2) Upon request, make available to the Board or its agents for examination and copying, all payroll records, social-security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (3) Post in conspicuous places at its Indianapolis, Indiana, plant, copies of the notice attached to the Intermediate Report, marked "Appendix A." 5 Copies of said notice, to be furnished by the Re- gional Director for the Ninth Region, shall, after being duly signed by the Respondent Employer's representative , be posted by it imme- diately upon receipt thereof and maintained by it for a period of at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to in- sure that said notices are not altered , defaced, or covered by any other material. (4) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order, what steps the Re- spondent Employer has taken to comply therewith. II. The Respondent, International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, its officers, representatives, agents, successors, and assigns , shall : s This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order " In the event that 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." 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Cease and desist from : (1) Causing or attempting to cause the Respondent Employer, P. R. Mallory & Co., Inc., its officers, agents, successors, or assigns to discriminate in regard to the tenure of its employees or any term or condition of employment in violation of Section 8 (a) (3) of the Act. (2) In any other manner restraining or coercing employees of Re- spondent Company, P. R. Mallory & Co., Inc., in the exercise of their rights guaranteed by Section 7 of the Act, except in the manner and to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. B. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Notify in writing the Respondent Employer, P. R. Mallory & Co., Inc., and Mayme Dietz that it withdraws all objections to her employment by the Respondent Employer, and that it requests the Respondent Employer to offer her immediate reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges. (2) Post at its business office and meeting hall in Indianapolis, Indiana, copies of the notice attached to the Intermediate Report marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by the Respondent Union's representative, be posted immediately upon receipt thereof and maintained by it for a period of sixty (60) consec- utive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices shall not be altered, defaced, or covered by other material. (3) Mail to the Regional Director for the Ninth Region signed copies of the notice marked "Appendix B" for posting, the Respondent Employer willing, at its Indianapolis, Indiana, plant, in places where notices to its employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed as provided in the preceding paragraph of this Order, be forthwith returned to the aforesaid Regional Director for posting. (4) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent Union has taken to comply herewith. III. Respondents, P. R. Mallory & Co., Inc., Indianapolis, Indiana, and International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, their respective officers, representatives, agents, suc- cessors, and assigns, shall jointly and severally make whole Mayme 6 See footnote 5, supra. P. R. MALLORY & CO., INC. 45 Dietz for any loss of pay she may have suffered by reason of the dis- crimination against her, in the manner prescribed in the section of the Intermediate Report entitled "The Remedy," as modified herein. Intermediate Report STATEMENT OF THE CASE This proceeding brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act) was heard in Indianapolis, Indiana, on May 17, 18, and 19, 1954, pursuant to due notice to all parties. The consolidated complaint, issued on January 17, 1954, by the General Counsel of the National Labor Relations Board,' based on separate charges duly filed and served, which were subsequently duly consolidated, alleges that P. R. Mallory & Co., Inc., herein called the Respondent or the Company, has engaged in unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act, and that International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, has engaged in acts and conduct in violation of Section 8 (b) (1) (A) and (2) of the Act. The separate answers of the Respondents admit certain allegations of the complaint but deny the commission of any unfair labor practices. All the parties were represented at the hearing and were afforded opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. Thereafter the General Counsel and counsel for the Company filed briefs which have been considered by the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE RESPONDENT COMPANY'S BUSINESS The complaint alleges, and the answer admits, that the Company, a Delaware cor- poration, maintains its principal office and manufacturing plants at Indianapolis, Indiana, where it is engaged in the production of electronic and metallurgical devices. During the year 1953, the Company manufactured and shipped products valued in excess of $1,000,000 to places outside the State of Indiana and in the same period caused materials valued in excess of $500,000, to be shipped to its manufacturing plants from points outside the State of Indiana. Counsel for the Respondents con- cede that the Company is engaged in commerce as defined in the Act. The Trial Examiner so finds. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, herein called the IUE or the Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. United Electrical, Radio and Machine Workers of America, herein called the ATE, is a labor organization within the meaning of Section 2 (5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Preliminary statement The complaint alleges that about September 15 and 22, 1953, various officers and agents of the IUE induced and encouraged more than 200 of its members, employed in the vibrator department at plant number 2, to engage in a work stoppage the pur- pose thereof being to force the Company to discharge Mayme Dietz because of her former membership in, adherence to, and activity on behalf of the UE, this action being in accordance with announced policy of the IUE to require the Company to terminate the employment of Dietz and other former adherents of the UE in order to discourage membership in that organization and to encourage membership in the IUE. The complaint further alleges that the Company yielded to the demands of the IUE and discriminatorily discharged Dietz on the above occasions. As a consequence the IUE violated Section 8 (b) (1) (A) and (2) of the Act and the 1 The General Counsel and the staff attorneys appearing for him at the hearing are referred to as the General Counsel, and the National Labor Relations Board as the Board. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company engaged in acts in violation of Section 8 (a) (3) and ( 1) thereof. The Re- spondents filed separate answers denying the foregoing allegations. B. Background of the case John M. Sullivan testified that he was elected president of Local 1001 when it was affiliated with UE, which in turn was then affiliated with the CIO . When the well known split between the UE and the CIO occurred , Sullivan stated that in Novem- ber 1949, Local 1001 held a meeting at which the membership , numbering about 2,000, voted to disaffiliate from the UE and to affiliate with the IUE . According to Sullivan a small number of the members opposed this action but only three voted against the same. Sullivan was elected president of the IUE Local and has continu- ously held that office . At the meeting Sullivan announced that some 18 company employees, including Dietz, would not be offered membership in the IUE because they had favored the UE and opposed the movement into the TUE . However, at some later date, Sullivan could recall at least two of this group being admitted as members after they had made application, appeared before the IUE executive board, and were voted in by the membership. Dietz was employed by the Company in October 1943 and continuously remained' in its employment until September 1953. She joined the UE in January 1944, was steward for 3 or 4 months in 1947 or 1948 , and at one time was nominated for the office of secretary-treasurer but withdrew therefrom. Dietz attended the meeting held in November 1949, but refrained from voting on the question of disaffiliation and affiliation. She stated that on one occasion while working at the plant, some 3 to 6. months after the meeting , she observed Charlie Snodgrass and Charlie Doyle, vice president and steward, respectively, distribute IUE membership application cards among the employees . Dietz was not offered a card, so she went to the union office and, after a brief conversation Rosella Doyle, secretary-treasurer, asked Sullivan the reason therefor. Sullivan replied that several employees had been passed by and while he had nothing against Dietz personally she did associate with Howard Jackson, whom he called a Communist , and since the membership had voted to leave the UE because of Communist control , "we are not going to have any in this Union ." Dietz inquired why he believed Jackson to be a Communist and Sullivan stated he "always votes against me." Sullivan also accused Dietz of voting with Jackson, which she denied. Sullivan informed Dietz that employees who failed to receive membership applications would be called before a strategy committee , which would vote upon- them, but if he had his way neither Dietz nor Jackson would ever be called before this committee . Dietz commented , "well be fired." but Sullivan told her that would not happen because of the Taft-Hartley Act. Dietz made no further attempt to^ join the IUE. She continued to work for the Company and, admittedly, engaged in no activities whatever on behalf of the UE. Sullivan denied having any such conversation with Dietz. Rosella Doyle likewise denied that she had any conversation at or about the time stated. C. The collective-bargaining agreement between the Company and IUE During 1949, and no doubt for many years prior thereto, the Company had an agreement with the UE. Following the affiliation with the IUE, it is reasonable to infer that the contractual relationship continued, but, in any event the parties stipu- lated that the IUE and the Company executed an agreement , which was in effect from September 2, 1952, to September 30, 1953, and extended to sometime in Febru- ary 1954. The agreement covers all employees of the Company , with certain ex- clusions, and provided inter alia, for a seniority system, grievance procedure, leaves of absence, and a no-work-stoppage provision . Further, the agreement contained a maintenance-of-membership clause which provided that employees who were mem- bers as of the time the agreement was signed shall remain members, with the privilege of resigning on 60 days' notice, without loss of employment , and that new employees shall become members 60 days after the commencement of their em- ployment, with the right to resign as stated above. Administration of the Agreement Sullivan, who did not work at the plant, was responsible for the administration of the agreement which, in September 1953, covered about 3,500 employees. However, he stated union stewards in the various departments were charged with the duty of policing the terms of the agreement including the investigation and handling of P. R. MALLORY & CO., INC. 47 grievances 2 and, as required by the constitution and bylaws , the stewards held a coun- cil meeting at least once a month for the purpose of discussing employee problems. In September, Robert J. Freeman was chief steward in the vibrator department and was temporary vice president for a period of approximately 4 months commencing about September 19. In the same month Freeman stated there were about 500 employees in his department and from 10 to 15 line stewards were under his juris- diction including Esther Davis, Louis Dearing, Basil Fox, Charles Doyle, Cordelia Mutchler, and Irene Webb. D. The Company's supervisory staff During the time in question , John J. Radigan was vice president in charge of in- dustrial relations; Alex J. Kertis, who was under Radigan, was manager of employee -and community relations and his duties embraced administration of the group in- surance plan, the direction of athletics , social events, and similar activities; Bert Whisler was superintendent of plant number 2; Thomas Gilpin and Carl Huebner, general foremen , Homer Stull, line foreman, and Al Huber, security director. Kertis stated the Company had approximately 3,700 hourly rated employees and that there were about 200 union stewards in all departments. Whisler said there were about 400 employees on the day shift in his department and 100 on the night shift. E. The discharge of Dietz As already stated, Dietz was employed in October 1943 , and worked continuously until May 16, 1953, when she was injured in an automobile accident which necessi- tated her being placed on sick leave for about 4 months. At the time of her accident Dietz was employed as an air gap adjuster on the heavy duty line. Kertis -conceded that Dietz had seniority on a plantwide basis and job seniority in accordance with grade classification and that she was entitled to replace the "youngest " air gap -operator in the department. 1. The events of September 15 About 10 o'clock in the morning Dietz, after clearing with the personnel de- partment, reported for work to Huebner, who informed her she would he placed on the "Q" vibrator line instead of the heavy duty line.' Dietz complained of this assign- ment and told Huebner, Stull, and Davis, the latter being steward over the air gap employees, but "they" stated they already had a couple of girls on the heavy duty line. When Dietz pointed out she had seniority over these girls they replied it made no difference, she would have to bump the youngest employee in point of service in the job classification. In the course of the conversation Ann Rogers, who was em- ployed on the heavy duty line, informed the group she did not like the work and would like to be taken off but Davis instructed her to stay on the job. Dietz then .accepted their decision and agreed to work on the "Q" line. Shortly after Dietz commenced working she noticed a lot of activity among the employees, with the stewards circulating throughout the department, but nothing occurred prior to the luncheon period. Upon her return to her job at 1 p. m. the machines were cut off and about 100 employees gathered around Dietz shouting at her and preventing her from working. There were remarks from the crowd that they would like to be like Dietz and "wouldn't have to pay Union dues and still always be sure of a job." Freeman, Davis, Fox, Mutchler, and Doyle were in the group. Whis- ler then came upon the floor and, standing upon a bench near Dietz, announced to the crowd: "Now I don't know what this is all about, but I've got a damned good idea. I'm asking you people to go back to work as of now, or I'm ringing you out as of 1:00." The crowd paid no attention to Whisler 's remarks so he went to the time- keeper's desk. The group continued to crowd around Dietz so she too went to the 2 The contract provides that the initial step in the settlement of grievances is between the line steward and the immediate supervisor of the employee and the second step is be- tween the line steward, chief steward, and/or vice president and the immediate supervisor, general foreman, and/or divisional superintendent. i The terms relate to different characteristics of vibrators used on automobiles Al- though more adjustments had to be made on the heavy duty vibrators Dietz preferred this job to the "Q" type and had selected the former job by reason of her seniority. It is undisputed that both jobs were in the same classification, paid the same rate, and that Dietz was qualified for either position. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timekeeper's desk where she met Whisler and several foremen. Whisler told Dietz she could not work under such conditions and instructed Stull to take her to his office, which was outside the work area. As Dietz was being escorted from the department there were shouts from the crowd, "She's going home now. We've got her out." Dietz remained in the office with Whisler's secretary and at all times either Stull or Gilpin stayed with them. The crowd then moved from the department into the corridor leading to the office where some of them banged on the office door and there were shouts of, "Let's go get her and throw her out." While in the office Dietz observed and heard Whisler telephone Sullivan and Kertis and advise them of the "trouble" in the department. Later Whisler told Dietz she would have " to go home until we get this straightened out." He then went into the department to obtain Dietz' coat and in answer to inquiries by some of the employees, who were still mill- ing around, Whisler stated he was sending Dietz home. Dietz thereupon left the plant. Mary Adney, a former employee, testified she worked on the heavy duty line and during the period Dietz was on sick leave Thelma Harrington took her job. Adney was present when Dietz returned to work and just prior to the stoppage she saw Mutchler and Dearing talking to the employees. She also heard Davis tell Harring- ton and several other employees that, "If she [Dietz] takes this job, she will be bump- ing another girl and she's in the union and Mayme isn't." In short, Adney stated that all the department employees ceased work and crowded around Dietz until she left her place of work. When Stull took Dietz to Whisler's office they followed them and there were shouts, "We won't go back to work until . . . she's out. Throw her downstairs." The stoppage lasted about 11/2 hours and the employees returned to work only on instructions from Freeman. Mary Berkholz, a former employee in the vibrator department, stated that just before lunchtime, she and Davis were discussing Dietz' return to work and Davis informed her, "we are going to stop work at 1:00 o'clock, and we didn't want to work with her." In the course of the demonstration Dietz heard Fox order one of the girls to stand up and "Let them know you are not intending to work." The girl thereupon stood up. Whisler stated a complete work stoppage occurred shortly after 1 p. in. so he went into the department where he asked Freeman what was going on and he replied that he did not know. Whisler put the same question to the crowd but received no reply. He then notified Kertis of the stoppage and requested Freeman to call the IUE office. Freeman reported that he was unable to contact anyone at the union office. In the meantime the stoppage continued so Whisler announced that if the employees did not return to work their pay would be cut off as of 1 o'clock. The warning was ignored whereupon Whisler instructed the timekeeper to shut off their pay. Whisler was at the timekeeper's desk, which was in the center of the floor, when Dietz came to him and stated she was afraid she might be hurt so he had Stull take her to his office. About 1:45 Whisler was informed the crowd had moved into the corridor in front of his office and when he went there he found them very noisy and told them to be quiet. Whisler telephoned Sullivan and explained conditions to him and he believed Sullivan told him he would come down to the plant, if he could get away. However, Sullivan failed to make any appearance at the plant. Whisler was hazy concerning his telephone conversations with Kertis but in any event about 2:30 he told Dietz to go home until something could be worked out. He then went into the department and instructed the employees to go back to work but they refused to do so. Whisler returned to his office and informed Freeman that Dietz "has gone home, now let's go back to work." Freeman, accompanied by Gilpin, talked to the em- ployees and they resumed work within a few minutes. Stull testified that when Dietz reported back to work he had an extra operator, so someone had to be laid off. Several of the employees spoke to Stull concerning the layoff and while "They didn't say exactly she [Dietz] was to replace a Union Mem- ber," they did ask "how come" Dietz was replacing this individual. Stull told them she was entitled to return to her job the same as any other employee. On the morn- ing of September 15, several of the operators requested permission to go home and when Stull asked the reason therefor, they told him "something was going to happen at 1:00 o'clock." Stull related he was unable to find out what was to take place and he thought he gave this information to Huebner and he may have said something to Whisler. About 1 o'clock the employees ceased working and crowded around Dietz. Stull took Dietz to Whisler's office and the crowd moved into the corridor where they remained for about 15 or 30 minutes. Stull had no discussion of the incident with any of the supervisory officials of the Company. P. R. MALLORY & CO., INC. 49 Kertis first learned of the stoppage about 1 : 30 p. in. when he returned Whisler's telephone call. After considering the matter Kertis called Whisler about 2:25 and instructed him to have Dietz taken off the floor and report to him. Dietz reported to Kertis and outlined what had occurred. Kertis stated he would conduct an investi- gation of the affair and would notify her of his decision in the matter. Thereafter Kertis talked to Whisler and Gilpin and on September 19 he decided that Dietz should return to work on September 22 and, further, as a precautionary measure, Huber was to be present at the time she reported. Admittedly, Kertis did not talk to any of the employees, or stewards, or any official of the IUE in the conduct of his investigation. Kertis also stated that while there had been work stoppages in the past none of them were for the same purpose or object as the instant stoppages. Freeman, a meter board operator, testified he had been chief steward for about 1 year and was aware of the fact that Dietz was not a union member, that she was absent from work for some time, and that she was scheduled to return to her job. Freeman, when confronted with an affidavit he executed before an agent of the Board conducting an investigation of the case, admitted that Dietz' return would result in the bumping of one employee. In substance, Freeman denied he had any advance knowledge that employees were to engage in a work stoppage and when it occurred he stated he was "running around there like a chicken with his head cut off, trying to find out what was wrong." Freeman conceded he took no action to terminate the stoppage and although he talked to some employees as to the cause of the action, seemingly he never learned the reason for the stoppage. About all Freeman could recall was that Whisler asked him what was going on and he answered that he did not know. While Freeman "would imagine" he called Sulli- van he could not "truthfully say what was discussed on the telephone." Freeman admitted this was the only work stoppage that took place in his department during his tenure as chief steward. Sullivan testified that Kertis telephoned him about the stoppage and requested him to come down to the plant but he replied he had no knowledge of the "thing" and that he was busy on other matters. Whisler also called Sullivan and reported the employees had ceased work because of Dietz. Sullivan told him he had no knowledge of the affair and he would not come to the plant unless requested to do so by the Local. Freeman likewise called Sullivan and informed him "there. was quite a turmoil" in the department because the employees were objecting to Dietz returning to her job. Sullivan, after being shown an affidavit he signed for an agent of the Board, admitted he told Freeman that Dietz was not a member of the IUE and that "We do not represent her." Sullivan did not visit the plant that after- noon because he felt there was little he could do and there was no use making himself part of the "mob scene." In accordance with the foregoing instructions Dietz remained at home for about I week and in that interval she regularly telephoned company officials and had one interview with Kertis. On Monday, September 21, Dietz was advised to report for work the next day. On the same date she received telephone calls from Adney and Rogers and, as a result thereof, she telephoned Kertis to report that she had been warned when she reported for work the "same thing is going to hap- pen again. They are getting ready for me." Kertis told her he thought he had- that straightened out and not to worry about it. 2. The events of September 22 Dietz reported for work on the above morning and was escorted by Huber to Whisler's office. There she met Gilpin, who was acting superintendent while Whisler was on vacation, Huebner, and Stull. Gilpin and Huebner left the office and during their absence Troy Veller, a supervisor, came in and informed Dietz and Stull that the stewards "have all been in a huddle ," that they were going among the employees who were "starting to mill around," and that he thought there would be some trouble. Gilpin and Huebner rejoined the group and decided that Dietz_ should go to work on the "Q" line. Dietz thereupon went to her place at the workbench and immediately the employees ceased working and formed in a circle about 10 feet from her. Huber was standing in back of Dietz. After a short while Gilpin came in and announced that the action of the employees was in violation of their contract and to return to work at once or else he would cut off their pay. The employees did not return to work whereupon Gilpin left. Shortly thereafter Gilpin came back and told Dietz, "the only thing I know to do is to tell you to go home until we get this straightened out." Dietz then reported to Ray Shipley in the personnel office who remarked , "its happened again," and ad- vised her to go home until the matter could be straightened out. Shipley added 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there was no use in sending her to another department because "the same thing would happen," and that he would notify her when to come back to work. Thereafter, Dietz made many telephone calls to company officials and on one .occasion, about 10 days later, Kertis stated he was sorry but he could not let her come back because "the same thing would happen again." Dietz complained she had seniority and was entitled to work and while Kertis agreed , he said, "it's for your safety and for your benefit that we not ask you to come in ." When Dietz asked what reason the IUE had given he answered , "none." Dietz also inquired if she was being discharged and Kertis told her , no, that her seniority was still accumulating. Dietz heard nothing further from the Company, so on November 4, 1953, she obtained employment at the Naval Ordnance Plant. Adney testified that just before Dietz returned Dearing told the employees he had a new song called, "Mayme's back." When Dietz actually began working the employees engaged in a stoppage which lasted for about 30 minutes. Berkholz related that about 10 minutes before the stoppage Mutchler informed some of the employees that Dietz was returning and they were going to stop work. Berkholz likewise stated that work stoppage lasted about 30 minutes. Kertis said he first learned of the stoppage when Huber called him and advised him the employees were milling towards Dietz. He told Huber to call back in about 5 minutes, which he did, and this time he reported the situation was becoming worse. Kertis then instructed him to have Gilpin take Dietz off her job and have her re- port to Shipley. Sometime later, Kertis told Dietz he could not attempt to put her back to work because it was his responsibility to protect employees from violence or harm and certainly he "couldn't influence three or four hundred . . . to stop crowd- ing around her, and so forth." Kertis never did reach any final decision that Dietz should not return for safety reasons but when he learned she obtained a position at the Naval Ordnance Plant he terminated her employment as of December 7, 1953, for the reason that she, "Quit with notice." As a result of the stoppage Kertis stated that warning notices were given to the individual employees by the respective line foremen on September 23, in which the employee was advised that he had partic- ipated in illegal action in violation of the contract and failing to follow instructions and further demonstration may result in severe disciplinary action . Copies of the warning notice were not served upon the IUE for the reason that the Company did not believe the stoppage to be a "Union concerted action." Kertis stated the em- ployees were docked for the stoppage of September 15, but not for the one on Sep- tember 22, because he was advised it lasted only about 15 minutes. Stull was questioned by some of the employees in regard to Dietz in substantially the same manner as when she reported , or was about to report , for work the first time. Freeman testified that in the interval September 15 to September 22, he may have talked to company officials concerning Dietz, but if he did , he could not remember the substance of the conversations. Similarly, he could not recall whether company officials had notified him that Dietz was being recalled on September 22. Freeman was not in his department on the morning of the above date, he believed he was in the personnel office, but in the afternoon he heard rumors a work stoppage had occurred. He denied he had any advance knowledge such action would be taken. Freeman admitted he took no steps whatever toward preventing work stoppages di- rected against Dietz working in the department since she was not a member of the IUE and he was under no obligation to represent her. He further stated no ac- tion was taken in this respect by any officials of the IUE. Concluding Findings On the basis of the testimony of Dietz, as substantiated by Kertis , the Trial Ex- aminer finds that Dietz had been continuously employed by the Company for ap- proximately 10 years and was on authorized leave of absence from her job as air gap adjuster on the heavy duty line in the vibrator department from May 16 to Sep- tember 15 , 1953. Dietz credibly testified, and it is found, that she became a mem- ber of the UE in January 1944, was somewhat active in its affairs and following the local's disaffiliation from the UE in November 1949 , as also conceded by Sullivan, she and a number of employees were advised they would not be offered membership because they had favored the UE and opposed the movement into the IUE . Several months later Union Agents Snodgrass and Doyle distributed IUE membership cards among the employees at the plant and when Dietz was passed by she went to the union office to learn the reason therefor . Sullivan, according to Dietz, had nothing against her personally but accused her of associating with Jackson , whom he termed a Communist, and they were not ooino to have any such persons in the 1UE. He P. R. MALLORY & CO., INC. 51 further stated that employees who failed to receive cards would be called before a committee but if he had his way neither Dietz nor Jackson would be invited before this committee. However, he assured Dietz that no effort would be made to have her discharged. Sullivan denied having any such conversation and Secretary-Treas- urer Doyle denied Dietz was in the union office at or about the time in question. Dietz testified in a frank and forthright manner and the salient portions of her testi- mony were either undenied or corroborated by other witnesses including company officials. Considering this phase of the evidence in the light of her entire testimony it is difficult to believe she would relate such an incident unless it had occurred. On the other hand the denials of Sullivan and Doyle impressed the Trial Examiner as being perfunctory and probably attributable to their inability to remember this par- ticular conversation after so many years and the nature of their duties which un- doubtedly brought them into daily contact with numerous employees. The Trial Examiner therefore accepts and credits the testimony of Dietz and finds accord- ingly. The record is clear that Dietz made no further attempt to join the IUE and her employment was uninterrupted until the events in question.4 However, Edna Rodgers, who was not a member of the IUE, testified that in October 1951 Whisler notified the employees of a layoff and the following day when she and Dietz re- ported for work the employees engaged in a stoppage for the reason as expressed by Alma Hoag, a steward, that "it was not right for them to be working while union members were being laid off." Whisler then took Rodgers and Dietz off the floor, at the request of union officials, while the latter discussed the matter with the employees. Shortly thereafter Rodgers and Dietz were permitted to resume work and continued in their jobs while about 40 other employees were laid off. Dietz testified to sub- stantially the same effect. It is undisputed that when Dietz came back to work on September 15, about 400 employees engaged in a work stoppage which lasted about 11/2 hours and terminated only when Freeman, with Gilpin present, announced Dietz had been sent home and to resume operations. One week later Dietz, after an alleged investigation of the incident by Kertis, reported for work and again a complete work stoppage ensued which resulted in her being removed from the plant and sent home. Although she sought to find out her status from company officials, admittedly, Kertis came to no definite decision in her case and she never was recalled to work. The Company concedes that when it learned Dietz had obtained other employment it considered her as having quit with notice on December 7. Counsel for the Company, in their brief, contend that in order to sustain a viola- tion of the Act a preponderance of the evidence must establish: (1) That the IUE conducted the stoppages for the purpose of securing the discharge of Dietz because of her nonmembership in the IUE and membership in, adherence to, or activity in behalf of the UE; (2) that the Company knew of Dietz' nonmembership in the WE and her membership in, adherence to, or activity in behalf of the UE; (3) that the Company had knowledge of the purpose of the stoppages; and (4) that the Company discharged Dietz at the instance of the 1UE for the purpose of encouraging membership in the IUE and discouraging membership in, adherence to, or activity in behalf of the UE. The IUE asserts: (1) That it never had any policy under which it sought to obtain the discharge of former UE members or adherents; (2) that it never demanded the discharge of Dietz; (3) that it did not order or sanction the stoppages; and (4) that it is not responsible for "wild cat" actions on the part of a group of its members. At this point it is appropriate to point out that Dietz admitted she ceased being a member of the UE in November 1949, and did not thereafter engage in any activities on its behalf. Further, there is no evidence of any activity at the plant on behalf of the UE during the time in question. Again, the record is totally in- adequate to support the allegation of the complaint that the JUE caused or demanded the discharge of Dietz in accordance with its announced policy to require the Com- pany to discharge former adherents of the UE in order to discourage membership therein and to encourage membership in the IUE. The Trial Examiner so con- cludes and finds. The issues as framed by the pleadings and expressed in briefs and arguments of counsel are: * There is no contention by the Company or the IUE that Sullivan's accusation, that Dietz was associating with Jackson, was a factor in the work stoppages and her separa- tion from the Company. 344056-55-vol. 111-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Did the IUE, through its agents, induce and encourage a large number of em- ployees to engage in work stoppages the object thereof being to force the Company to discharge Dietz because of her nonmembership in the IUE in order to encourage membership in that organization? Did the Company, being aware of the purpose of the stoppages, yield to the demands of the IUE and unlawfully discharge Dietz? The undenied evidence adduced by the General Counsel clearly established that the work stoppages were instigated and directed by the department stewards, which stoppages were in violation of the existing agreement and for an unlawful purpose. Thus, at the very outset, when Dietz was assigned to a job other than the one she had held, she complained to Huebner, Stull, and Davis, who advised her they already had a couple of girls on the heavy duty line. Although Dietz had seniority over these girls they replied that was of no consequence, she could only replace the youngest employee. Moreover, when Rogers suggested to the group that she be taken off heavy duties because she did not like the work, Davis ordered her to stay on the job, which she did. Under the circumstances Dietz accepted her assignment. The participation by Davis in this discussion with Huebner and Stull concerning Dietz' job assignment fully warrants the conclusion that if she did not have advance knowledge concerning the reemployment of Dietz, she clearly was aware of the fact prior to the time Dietz even commenced working. Nor can it be said that she played a minor role at this meeting in view of her orders to Rogers, in the presence of Huebner and Stull, who obviously acquiesced in her action. Again, Adney credibly testified that on the first occasion she observed Mutchler and Dearing talking to the employees and also heard Davis inform Harrington, Dietz' replace- ment, and several other employees that, "If she [Dietz] takes this job, she will be bumping another girl and she's in the union and Mayme isn't." Davis likewise discussed Dietz' return with Berkholz and told her the stoppage would take place at 1 o'clock because "we didn't want to work with her." Sullivan claimed he first learned of the stoppage when Kertis and Whisler called him but he neglected to come to the plant because there was little he could do and he did not desire to become part of a "mob scene." He admitted he received a call from Freeman who advised him there was "turmoil" at the plant because of Dietz' return to work. Sullivan, after refreshing his memory from an affidavit executed before an agent of the Board, admitted he told Freeman that Dietz was not a member of the IUE and "We do not represent her." Freeman admitted he knew Dietz was not a member of the IUE, that she had been on leave for some time, and, with the aid of his affidavit given to a Board agent, conceded her return would result in the bumping of an operator. Freeman asserted he had no advance knowledge of the stoppages, that he made no effort to terminate the first one (he was not in the department on the second occasion), and that although he talked to the employees, obviously, he never did find out the reasons for the demonstrations. In fact Freeman could not definitely remember whether he even called Sullivan and, if he did, he could not remember the conversation with him. Freeman's version of the first stoppage is so patently weak and unconvincing that further comment is scarcely necessary. His testimony that he had no knowledge the stoppage was to take place and that he was unable to learn the cause thereof conclusively proves that he was either an incompetent representative of about 400 employees or that he was an untruthful witness. The Trial Examiner can only characterize his testimony as being in the latter category. As a witness at the hearing Freeman parried questions, avoided responses if possible, responded when required with elusive and evasive answers, and in general exhibited a hostile and presumptuous attitude towards the proceeding. The Trial Examiner from his observation of Freeman is thoroughly convinced that he was an untruthful witness. Accordingly, his testi- mony is rejected, except where it happens to receive full corroboration from other witnesses or relates to accepted or stipulated facts. It is undisputed that IUE stewards were present during the stoppages and some of them directed the employees to stop working. There is no evidence that any of them made any effort to terminate the demonstrations. - Neither Davis nor any of the stewards appeared as witnesses at the hearing. Upon the. foregoing evidence and the reasonable inferences to be drawn therefrom the Trial Examiner finds that the IUE, particularly through Davis and its stewards, knew that Dietz was not a member of the IUE and that her return would result in the replacement of one of its members. Davis so advised Adney. As a conse- quence, Davis and other stewards ordered, induced, and encouraged the employees to stage the initial work stoppage, and participated in the same, the purpose and object thereof being to force the Company to discharge Dietz. Despite an ultimatum from Whisler to terminate the stoppage, the employees continued the same and it P. R. MALLORY & CO., INC. 53 was not until Freeman notified them that Dietz had been sent home and to return to work did they resume plant operations. In view of the duties and responsibilities of the stewards to the IUE, as stated by Sullivan and as contained in the constitution and bylaws, the Trial Examiner finds the stewards to be agents of the IUE, conse- quently, it is responsible for acts committed within the scope of their authority. Moreover, the IUE fully acquiesced in and ratified their acts for it did nothing whatever to disavow, or to even investigate their course of conduct. Having been successful in forcing the Company to discharge Dietz on September 15, the Trial Examiner finds that when the Company attempted to reinstate her on September 22, the IUE engaged in a second work stoppage, under substantially the same circumstances, and that the purpose and object of this demonstration was identical to that of the first stoppage. The Trial Examiner further finds that the IUE succeeded in forcing the Company to discharge Dietz on this occasion. The Trial Examiner is in full accord with the principle urged by the Company, namely, that the record must disclose knowledge on the part of the Company that the stoppages related to Dietz' membership or nonmembership in the IUE, or that such knowledge may be inferred from established facts. In the opinion of the Trial Examiner the testimony of Stull proves that he was well aware of the position and attitude of the IUE, especially through Davis, as well as the employees in regard to the impact of Dietz' reinstatement. Thus, Stull con- ceded that the return of Dietz would necessitate the layoff of an operator and sometime prior to her return, on each occasion, several employees brought up the subject with him. Concerning these conversations, Stull testified the workers "didn't say exactly she was to replace a Union Member," but asked "How come Mayme" could bump another employee and he stated she had reemployment rights. Again, on the morning of September 15, several operators told Stull that "something was going to happen" that afternoon but he was unable to find out what it would be and he was not certain whether he passed this information to Whisler or Huebner. Further, Stull did not deny or question Dietz' testimony, set forth above, in regard to the discussion she had with Stull, Huebner, and Davis about her job assignment. While Stull professed a hazy recollection of the events of September 15, and portions of his evidence are difficult to accept, nevertheless his testimony on the whole persuades the Trial Examiner that he had knowledge that the IUE was opposed to Dietz' reemployment because she was not a member of the Local, that her return would result in the replacement of one of its members, and the stoppages which ensued were motivated by a desire to eliminate her from the plant for these reasons. The Trial Examiner so finds. But assuming company officials were without knowledge as to the purpose of the first stoppage the result would be the same. Here the facts show that some 400 employees, including union stewards, engaged in a complete cessation of work, in plain violation of an existing agreement, in protest against Dietz' return and adamant- ly ignored instructions to resume work until the Company had sent her home. The Board, in D. W. Newton, d/b/a Newton Brothers Lumber Co., 103 NLRB 564, 567, enfd. 214 F. 2d 475 (C. A. 5), held that an employer who acquiesces in the exclusion of employees from its plant by an antiunion or rival union group will be regarded as having constructively discharged the employee in violation of Section 8 (a) (3) for the Act imposes upon an employer the affirmative duty to insure that its right of discharge is not surrendered to any union or antiunion group. Continuing, the Board declared, "an employer cannot avoid the responsibilities imposed by the Act on the ground it had no knowledge of the exclusion until after the event had oc- curred, for as the Board has stated, `An employer's responsibility for such exclusion is . . . not dependent upon knowledge in advance of exclusion, but arises if the employer, as in this case, is immediately advised of the exclusion and does nothing to prevent its continuance.' " Therefore, following the demonstration the Company was under the plain duty to investigate the cause of the stoppage and, if found to be illegal, to offer Dietz reemployment and adequate protection from further demonstra- tions. This the Company neglected to do for Kertis, who conducted the investiga- tion, admitted he did not interview any of the employees or stewards involved or even talk to any union officials. Such a cursory investigation of a serious matter warrants the conclusion that Kertis was either well aware of the purpose of the dem- onstration or he was not too much concerned about motive. Accordingly, the circumstances under which Dietz was reinstated and the develop- ments stemming therefrom convince the Trial Examiner that Kertis was not interested in genuinely protecting the rights guaranteed Dietz by the Act, but was simply making a trial effort to learn whether the IUE would permit her to work on the second go round. This position is fully substantiated by the fact that when the demonstration took place he quickly ordered Dietz removed from the department and sent home. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter he advised Dietz he would not attempt to reinstate her for safety reasons since he could not influence the employees "to stop crowding around her and so forth." Kertis claimed he was unable to reach any decision in her case in the approxi- mate period September 22 to December 7, and finally terminated her employment on the latter date when he learned she had obtained a position elsewhere. It is perfectly clear that Kertis resorted to stalling tactics and withheld employment to Dietz awaiting an opportunity to formally discharge her on other and more tenable grounds and when the opportunity did appear, he immediately seized upon it. Company counsel argue at length that motives proscribed by the Act may not be presumed from the discharge itself, even though it be inconsiderate, and the evidence must disclose the Company yielded to improperly motivated IUE pressure. While the foregoing findings negate these arguments the Trial Examiner believes it is appropriate to briefly discuss the cases cited to support the latter proposition. In N. L. R. B. v. Wytheville Knitting Mills, 175 F. 2d 238 (C. A. 3) and N. L. R. B. v. I. Spiewak f Sons, 179 F. 2d 695 (C. A. 3), the court held that where an employer made bona fide efforts to reinstate certain strikers but the employees opposed their reinstatement because of violence and name-calling on the picket line and threatened to leave their jobs, whereupon the employer discharged these strikers, such action was not an unfair labor practice since the dischargees had engaged in unprotected con- certed activities, hence the employees' demands were not motivated by union or nonunion considerations. N. L. R. B. v. Ashville Hosiery Co., 108 F. 2d 288 (C. A. 4), an exclusion case, is to the same general effect. In N. L. R. B. v. Edinburgh Citrus Ass'n., 147 F. 2d 353, 355 (C. A. 5), practically all the packing shed workers petitioned the employer to discharge two employees because they were creating such a state of disturbance and unpleasantness they would no longer work with them. The dischargees were engaged in organizational activities and admittedly there was bad feeling between these individuals and the packers who opposed organization. The court in refusing to enforce the Board's order of reinstatement stated, "We do not agree with the Board in the idea that because a part of the workers' objection to these employees was their union activity, the employer necessarily ratified and adopted that as a ground of his action." The foregoing cases arose prior to the amendments to the Act. In N. L. R. B. V. Shen-Valley Meat Packers, Inc., et al., 211 F. 2d 289 (C. A. 4), the Board found that the union violated Section 8 (b) (2) in attempting to cause and causing the employer to discharge two employees for engaging in rival union activities and the company in effectuating the discharges, on complaint and threat of a walkout by the union steward, thereby violated Section 8 (a) (3) of the Act. Both the union and the company denied any knowledge of rival union activity on the part of the discriminatees. In its decision the court pointed out that the Board, lacking direct evidence on this phase of the case, had attributed knowledge to the union through its steward because one dischargee allegedly solicited for the rival union in her department and union representatives made the single admission of knowing of a proposed strike by the rival union. Knowledge was imputed to the company because certain of its officials admitted knowing of activity at the plant on behalf of the rival union. The inferences received no direct substantiation from the testimony and the positive denials of knowledge by the company and the union, plus other factors, such as a vast number of rival union members still being in the employ of the company, refuted such inferences. Moreover, the court found that the dis- charges were precipitated by the union steward for the reasons that the individuals had caused disturbances in the plant and used abusive language and no mention was made of rival union activities. The court held this testimony was insufficient to establish knowledge of union membership on the part of the respondents, but as- suming it did, still there was no substantial evidence to support a finding the dis- charges were made because of union membership or activity. Unquestionably these authorities fully support the proposition that knowledge and motivation must be established to sustain a violation in this particular type of dis- crimination. Further, it is significant that in each of the cases the employees or the union clearly stated the reasons for their refusal to work with the individuals in- volved and these reasons were bottomed squarely on objectionable and obnoxious conduct on the part of the dischargees having no relationship to their membership or nonmembership in, or activity on behalf of, any labor organization. Of course, the Edinburgh case presents an instance of mixed motives. Here counsel for the Respondents would have one believe that 400 employees engaged in 2 work stop- pages directed against Dietz for no reason whatsoever. If this were true it would, no doubt, be the first time that a great number of employees engaged in a strike, stoppage, or walkout without attempting to gain some purpose or objective, be it labeled good, bad, or fictitious. It strikes the Trial Examiner that where, as here, P. R. MALLORY & CO., INC. 55 the union has an agreement with the employer and its stewards and members engage in mass demonstrations against one nonmember employee and refuse to resume op- erations until the employee is discharged the only reasonable inference to be drawn from such conduct is, that it was prompted by union or nonunion considerations. Under the circumstances and since responsible company officials were present through- out these demonstrations it is reasonable to infer that the Company was equally aware of the causation thereof. Of course each inference is a rebuttable one. Thus, as explained in the concurring opinion of Justice Frankfurter in the Radio Officers' Union case,5 any inference drawn from the employer's alleged discriminatory acts is a rebuttable one, it being open for an employer to show by additional facts that the discrimination was "so patently referable to other land lawful] considerations" as to preclude a finding of a violation. Again, in the Shen-Valley case, supra, the court stated (page 293) : We agree, of course, that it is not necessary that knowledge or motive be estab- lished by direct evidence and that circumstantial evidence is sufficient; but the evidence must be of circumstances which do more than give rise to a mere sus- picion. They must be of such a character that they can reasonably be accepted as establishing as a fact the matter which is in issue. In the instant case neither the IUE nor the Company adduced any evidence tending to show motivation for the stoppages, be it a legal or illegal one. Under all the cir- cumstances, and in the absence of any such evidence to the contrary, the only in- ference to be drawn from the undisputed facts is that the stoppages were instigated, ordered, and promoted by the IUE by reason of Dietz' nonmembership therein and that the Company was aware of the illegal purpose of the demonstrations. The Trial Examiner so concludes and finds. The next issue to be resolved is whether the conduct found above constitutes a vio- lation of the Act on the part of the IUE and Company. Under Section 8 (b) (2) it is an unfair labor practice for a labor organization or its agents "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection 8 (a) (3).. ." of the Act. In turn the latter subsection declares it an unfair labor practice for an employer to discriminate against an employee "in regard to hire or tenure of employment to encourage or discourage membership in any labor or- ganization. ... At the outset, it must be recognized, as held in the Radio Officers' Union case, supra, p. 40, that the policy of the Act is to insulate employee's jobs from their organizational rights and the foregoing sections: . were designed to allow employees to freely exercise their right to join unions, be good, bad, or indifferent members, or abstain from joining any union with imperiling their livelihood. The only limitation Congress has chosen to impose on this right is specified in the proviso to Section 8 (a) (3) which au- thorizes employers to enter into certain union security contracts . . . [The proviso is not involved in this case.] It is well settled that the Act does not touch the employer's normal right to hire and discharge employees but prohibits only discrimination of such a character as encourages or discourages membership in a labor organization. Intent, of course, is a relevant factor, but specific evidence of intent is not an indispensible element of proof of violation of Section 8 (a) (3). Again, in the Radio Officers' Union case, supra, p. 45, the Court expressly recognized the doctrine that proof of certain types of discrimination satisfies the intention requirement. Speaking on this point, Jus- tice Reed declared: This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an ap- plication of the common-law rule that a man is held to intend the foreseeable consequences of his conduct. . . . Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural con- sequence of his action was such encouragement or discouragement. Conclud- ing that encouragement or discouragement will result, it is presumed that he intended such consequence. In such circumstances intent to encourage is suffi- ciently established. The Court further held that it was not essential to establish that the employees dis- criminated against be the ones encouraged for the purposes of violations of Section 8 (a) (3), nor was there any requirement that the change in the employees' "quan- 5 N. L. R B v The Radio Officers' Union of the Commercial Telegraphers Union, AFL, 347 U. S. 17, 56. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turn of desire" to join a union have immediate manifestations . The Trial Examiner has no difficulty in reaching the conclusion that the natural and expected result of the Company's action in discharging Dietz, for the reasons found above, was to serve notice to the employees that it would be to their best advantage to become and remain members of the IUE and thereby encouraged membership in that organization. To sustain a violation of Section 8 (b) (2) it is only necessary to show that the union caused or attempted to cause the employer to engage in conduct , which if committed, would violate Section 8 (a) (3). (Radio Officers' Union case, supra, p. 53; N. L. R. B. v. Newspaper and Mail Deliverers ' Union, 192 F. 2d 654, 656- 657 (C. A. 2).) It cannot be seriously questioned that if the Company , independ- ent of union causation, discharged Dietz because of her nonmembership in the IUE, as found above, its action would be illegal under Section 8 (a) (3) and ( 1) of the Act. Accordingly, when the IUE caused the Company to discriminate against Dietz for this reason , it acted in the teeth of the proscriptions of the Act and thereby vio- lated Section 8 (b) (2) and ( 1) (A) thereof. The Trial Examiner so concludes and finds. Other contentions raised by the Respondent Union , to the effect that it never de- manded Dietz' discharge and that she failed to utilize the grievance procedure set forth in the agreement , are without merit or substance. While it may be true the IUE did not address a formal demand of discharge to the Company the Trial Ex- aminer can think of no more forceful means of obtaining Dietz' removal from the plant than the demonstrations staged by the IUE through its agents and members. Finally, it is idle to say that Dietz was under obligation to request the IUE to proc- ess a grievance on her behalf when it had caused her discharge and Sullivan took the unqualified position that "we" do not represent her. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , 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 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 the Respondents have engaged in certain unfair labor prac- tices, it is recommended that they cease and desist therefrom and take certain affirm- ative action designed to effectuate the policies of the Act . It is, therefore , recom- mended that the Company offer to Mayme Dietz immediate and full reinstatement to her former or substantially equivalent position ,6 without prejudice to her seniority or other rights and privileges It is also recommended that the Company and the IUE, jointly and severally , make whole Mayme Dietz for any loss of pay she may have suffered because of the discrimination against her , by payment to her of a sum of money equal to the amount she would have earned as wages from September 15, 1953, to the date of offer of reinstatement , less her net earnings during such period. Back pay shall be computed in accordance with the Board's Woolworth formula 7 on the basis of each separate calendar quarter or portion thereof during the period from the discharge to the date of proper offer of reinstatement . Loss of pay shall be determined by deducting from a sum equal to that which the employee would normally have earned for each quarter or portion thereof, less her net earnings 8 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also recommended that the Company make available to the Board or its agents, upon request , payroll and other records to facilitate the checking of the amount of back pay due. Upon the foregoing findings of fact and upon the entire record the Trial Exam- iner makes the following: CONCLUSIONS OF LAW 1. The operations of Respondent P. R. Mallory & Co ., Inc., occur in commerce as defined in Section 2 (6) and (7) of the Act. O The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. 7 F W Woolwoi th Company, 90 NLRB 289 8 Crossett Lumber Company, 8 NLRB 440. P. R. MALLORY & CO., INC. 57 2. International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, and United Electrical, Radio and Machine Workers of America, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the tenure of employment of Mayme Dietz, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By attempting to cause and causing the Company to discriminate against Mayme Dietz in violation of Section 8 (a) (3) of the Act, the IUE has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act, and has restrained and coerced employees of the Company in the exercise of the rights guaranteed in Section 7 of the Act, thereby 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 com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT encourage membership of our employees in International Union of Electrical, Radio and Machine Workers, CIO, Local 1001, or any other labor organization, by discharging employees or in any other manner discriminating in regard to the tenure of employment or terms or conditions of employment of our employees. WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organ- izations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities except to the extent that such right may be affected by a valid agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL offer Mayme Dietz immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and jointly and severally with Inter- national Union of Electrical, Radio and Machine Workers, CIO, Local 1001, make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become or remain members of the above-named labor organization , or any other labor organization, or to refrain from such activities except to the extent that such right may be affected by agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employees because of membership or nonmembership in or activity on behalf of any such labor organization. P. R. MALLORY & CO., 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. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, LOCAL 1001 AND TO ALL EMPLOYEES OF P. R. MAL- LORY & CO., INC. 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 Rela- tions Act, we hereby notify you that: WE WILL NOT cause or attempt to cause P. R. Mallory •& Co., Inc., its suc- cessors or assigns, to discriminate in regard to the hire or tenure of employ- ment or the terms or conditions of employment of its employees in violation of Section 8 (a) (3) of the Act, except in the manner and to the extent au- thorized in Section 8 (a) (3) of the Act. WE WILL NOT restrain or coerce employees of P. R. Mallory & Co., Inc., its successors or assigns, in the exercise of their rights guaranteed in Section 7 of the Act, except in the manner and to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL, jointly and severally with P. R. Mallory & Co., Inc., its successors and assigns, make whole Mayme Dietz for any loss of pay suffered as a result of the discrimination against her. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, LOCAL 1001, Labor Organization. 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. UTICA OBSERVER-DISPATCH, INC. and LOCAL 129, UTICA NEWSPAPER GUILD, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, CIO. Case No. 3-CA-721. January 5,1955 Decision and Order STATEMENT OF THE CASE Upon charges duly filed by Local 129, Utica Newspaper Guild, affiliated with American Newspaper Guild, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel and the Board, respectively, by the Regional Director for the Third Region issued his complaint on November 27, 1953, against Utica Observer-Dispatch, Inc., herein referred to as the Respondent, alleging that the Respondent had en- gaged in and was engaging in certain unfair labor practices affecting commerce, within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C., Supp. V, Secs. 141, et seq., herein referred to as the Act. Copies of the complaint, the charge, and notice of hearing were duly served upon the Respondent and the Union. 111 NLRB No. 6.