Bryan Manufacturing Co.

.502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryan Manufacturing Company and Maryalice Mead Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and International Association of Machinists,. AFL- CIO [Bryan Manufacturing Company] and Mary'alice Mead. Cases Nos. 7-CA-1303 and 7-CB-P280. November 18, 1957 DECISION AND ORDER On April 17, 1956, Trial Examiner Earl S. Bellman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent Company and the Respondent Unions had engaged in and were engaging in certain unfair labor practices and recommend- ing that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Counsel, the Respondent Company, and the Respondent Unions filed exceptions to the Intermediate Re- port and supporting briefs.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was conznlitted. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs,' and the entire record in the case,3 and hereby adopts, with minor corrections' and modifica- i The Respondent Company requested oral argument. The request is hereby denied be- cause the record, the exceptions, and the briefs adequately present the issues and the posi- tions of the parties. 2 The Respondent Unions have moved to correct certain errors appearing in the brief in support of their exceptions to the Intermediate Report. No party has opposed the motion. Accordingly, we hereby grant the motion and correct the brief as requested. -After the issuance of the Intermediate Report the Respondent Unions submitted a "Motion to Reopen Record and Adduce Additional Testimony," dated May 29, 1956: The Respondent Unions claim newly discovered evidence to support their contention that the Charging Party, Maryalice Mead, was fronting for a noncomplying union , Local 701, Inter- national Union. United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, at the time she filed the charge against the Respondent Unions and the amended charge against the Respondent Company. The General Counsel filed an answer, dated June 7, 1956, opposing the motion. The Respondent Unions contend that the alleged newly discovered evidence would show that Local 701, UAW-AFL-CIO, has engaged in organizational activities at the Respondent Company's Reading and Hillsdale, Michigan, plants before and since the issuance of the Intermediate Report in this case. We reject the Respondent Unions' argument in support of their motion that the Trial Examiner was "influenced [in] his decision on the fronting issue" by a discontinuance of organiza- tional activity by Local 701, UAW-AFL-CIO, about August 1954, because close examina- tion of the Intermediate Report shows that the Trial Examiner was merely noting that circumstance in reporting the facts on the fronting issue. We adopt the Trial Examiner's finding "that, in giving advice and assistance which was sought by Mead and other-em- ployees, President Salomon [of Local 701, UAW-AFL-CIO] was actually functioning as an individual, rather than on behalf of Local 701." Cf. N. L. B. B. v. Augusta Chemical Co., 187 F. 2d 63 (C. A. 5). Accordingly, any alleged organizational activities by Local 701, UAW-AFL-CIO, are irrelevant to the fronting issue, and we hereby deny the Re- spondent Unions' motion to reopen the record. 4 We make the following corrections of inadvertent errors appearing in the Intermediate Report which do not, however, affect the Trial Examiner's ultimate eonclusions. Dorothy Sarles rather than Frances Peters "was positive no vote Ga,d been taken ko, apr 119 NLRB No. 59. BRYAN MANUFACTURING COMPANY 503 tions,5 the findings, conclusions, and recommendations of the Trial Examiner. 1. The Respondents have moved to dismiss the complaint on the ground, inter alia, that the Board is barred from making any unfair labor practice finding by Section 10 (b) of the Act.' In summary, these are the facts pertinent to the issue raised by the Respondents' 10 (b) contention. The Respondents executed a collective-bargaining contract about August 10, 1954, containing a union-security clause. The Respondents twice supplemented that basic agreement, the sec- ond time about September 2, 1954. The initial charge against the Re- spondent Company was filed on June 9, 1955. That charge was sup- plemented on August 5, 1955, on which date the charge against the Respondent Unions was also filed. The Respondents executed a re- newal agreement on August 30, 1955. Upon these facts the complaint alleges that the Respondent Company violated Section 8 (a) (1), (2), and (3) and the Respondent Unions Section 8 (b) (1) (A) and (2) by maintaining in effect the August 10, 1954, agreement within 6 months of the time of filing the charges and by executing and maintaining the August 30, 1955, contract. The Respondents argue that they did not engage in any conduct within 6 months of the filing of the charges that constituted an unfair labor practice and that the complaints should, therefore, be dismissed. The Trial Examiner found that, when the Respondents signed the August 10, 1954, contract with its union-security clause, the Respond- ent Unions were not the majority representative of the employees covered by the agreement, and therefore that the union-security clause was unlawful because it was not executed in conformity with the pro- prove the agreement [dated August 10, 1954] because of the fact that after she had thought it over she wondered why there had not been such a vote." Schwartzmiller rather than Schaffer told the five second-shift employees on the afternoon of August 16, 1954, at the meeting in Westbrook's office, that they "might just as well be among the first to sign the cards." William Jack rather than Joseph Smith heard Salomon make various statements at two meetings of the Respondent Company's employees, such as, Salomon was not there "rep- resenting anybody, but just as an individual trying to give Maryalice [Mead] some help," and that "Maryalice had come to him for help." 5 We do not adopt, or find it necessary to pass upon, the following statements of the Trial Examiner : That the Respondent Unions failed to establish the service of two subpoenas duces tecum upon Schwartzmiller, the Respondent Unions' representative. That the Respondent Unions' failure to comply with the subpenas served upon them did not warrant an adverse inference. That at the time Schwartzmiller signed the basic agreement dated August 10, 1954, and the employees' Temporary Bargaining Committee signed the wage supplement thereto the Respondent Company's vice president, Westbrook, "was given the impression that the employees had registered their approval of the provisions thereupon being signed." That the General Counsel's offer of proof pertaining to the fronting issue in this case as- sumed that "Mead had originally been fronting for Local 701 [UAW-AFL-CIO] when she filed the first of her charges." 6 The portion of Section 10 (b) relied upon by the Respondents reads : Provided, That no complaint shall issue based upon any unfair labor practice occur- ring more than six mouths prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made: . 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viso to Section 8 (a) (3) of the Act.' In the Trial Examiner's opinion; the failure to comply with the requirements of the Section 8 (a) (3)' proviso rendered the contract void ab initio, and, although he. was pre- cluded from finding the execution of the contract unlawful, he was not barred from finding unlawful the enforcement or maintenance of the contract within the 6-month period preceding the filing of the charge. Inasmuch as the contract was maintained during that crucial 6-month period before the charge was filed, the Trial Examiner found that the Respondents thereby violated the Act. The Trial Examiner also found that such unlawful action by the Respondents was per- petuated by the execution and maintenance of the subsequent 1955 contract. Accordingly, he rejected the defense based upon Section 10 (b). Like the Trial Examiner, we reject the Respondents' contention that Section 10 (b) is applicable to the facts of this case. Section 10 (b) is a statute of limitations e and not, as the Respondents contend, a rule of evidence." It bars the Board from finding that an unfair labor practice alleged to have occurred more than 6 months before the filing of a charge is a violation of the Act, but it does not bar the receipt of evidence, antedating the critical period, which may be relevant in de- termining whether conduct within the 6-month period was unlawful.10 Thus, where employees, within 6 months of the filing of a charge, were laid off pursuant to a discriminatory seniority list adopted more than 6 months before that date, the Board considered the circumstances sur- rounding the establishment of the list and found the layoffs discrim- inatory-even though the Board was barred by Section 10 (b) from finding that the compilation of the list was a violation of the Act.'1 Similarly, although the Board decided that it could not find that the establishment of an employment blacklist against a named employee 7 Section 8 (a) (3) reads, in part: Provided, That nothing in this Act, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (1) if such labor organiza- tion is the representative of the employees as provided in section 9 (a), in the appropriate collective-bargaining unit covered by such agreement when made ; and has at the time the agreement was made or within the preceding twelve months re-' ceived from the Board a notice of compliance with sections 9 (f), (g), (h), and (it) unless following an election held as provided in section 9 (e) within one year pre- ceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement : . 8N. L. R. B. v. A. E. Nettleton Co., et al., 241 F. 2d 130 (C. A. 2) ; N. L. R. B. v. Itasca Cotton Monufacturing Company, 179 F. 2d 504 (C. A. 5). 9 Axelson Manufacturing Company, 88 NLRB 761, 766. 10 Ibid. u Potlatch Forests, Inc., 87 NLRB 1193, enforcement denied on grounds not relevant here, 189 F. 2d 82 (C. A. 9) ; see also N. L. R. B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen d Helpers of America, et el. (Pacific Intermountain Express Co.), 225 F. 2d 343 , 345 (C. A. 8). BRYAN MANUFACTURING COMPANY 505 was unlawful because of Section 10 (b), it did find that the continued application of the blacklist within the critical 6-month period was unlawful.12 The cases cited reveal the fallacy in the Respondents' Section 10 (b) contention which is based on the erroneous proposition that their 1954 contract violated the Act, if at all, only at the precise moment it was signed. The cases establish that when parties agree to a union-security arrangement which does not conform to the requirements of the pro- viso to Section 8 (a) (3), they violate the Act not only when they agree to the arrangement but every day that they continue the unlaw- ful arrangement in effect. Indeed, adoption of the Respondents' con- tention would permit an employer and a union to enter into an un- lawful arrangement before a plant started operating which they could then enforce with impunity 6 months after executing the agreement. Moreover, we can perceive no difference in illegality between a con- tract unlawful on its face, that is, one prescribing a form of union security prohibited by the statute, and a contract invalid because cer- tain requisites to the making of a valid contract have not been com- plied with. In both instances the invalidity begins at a point in time and continues so long as the unlawful contract remains in effect. The only difference between the two situations goes to the manner of proving illegality. In the one type of case the contract itself estab- lishes the invalidity; in the other the invalidity is proved by reference to the facts surrounding the execution of the contract. In the latter instance, resort may be necessary to events which occurred more than 6 months before a charge was filed. However, because Section 10 (b), as noted above, is not a rule of evidence, the facts on the execution of the contract are fully admissible. In accordance with these prin- ciples, the Board has held that although the execution of an other- wise lawful union-security contract made with a minority union could not be the basis of an unfair labor practice finding because of Section 10 (b) ,13 the contract could not serve as a defense to the dis- charge of an employee pursuant to the contract within 6 months of the filing of the charge." In another instance'15 the Board found 12 Local Union 1418, General Longshore Workers, International Longshoremen's Associ- ation, AFL (Lykes Brothers Steamship Co.), 102 NLRB 720, affd. 212 F. 2d 846 ( C. A. 5). See also N. L. R. B. v. Dallas General Drivers, Warehousemen and Helpers, Local Union 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL ( North East Texas Motor Lines, Inc.), 228 F. 2d 702 (C. A. 5), wherein the court stated , "Moreover, if the contract provision giving the Union sole power to settle seniority disputes violated the Act, or if the Union exercised that power discriminatorily, each time it did so constituted a separate and distinct act, whether or not the decision so to act was made outside the six-month period." is The contract provided for a closed shop but was lawful on its face under Section 102 of the Act. 1; Guy F. Atkinson Co., et al., 90 NLRB 143, enforcement denied on grounds not relevant here, 195 F. 2d 141 ( C. A. 9). 15 Gaynor News Company, Inc., 93 NLRB 299, affd. in this regard 197 F. 2d 719 (C. A. 2), affd. 347 U. S. 17. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that a union-security clause was unlawful because it had not been authorized by employees pursuant to an election conducted under the then existing Section 9 (e) of the Act.16 In making this finding, the Board rejected a defense that Section 10 (b) barred consideration of the legality of the contract which had been executed more than 6 months before the unfair labor practice charge had been filed. The court of appeals sustained the Board ruling as follows : 17 As to the charge of illegality concerning the 1948 contract, we agree that, so long as that contract continued in force, if actually illegal, a continuing offense was being committed by the employer. Since the contract was still in force at the time of filing [of the charge], the six months' limitation period of § 10 (b) had not even begun to operate. Accordingly, we find that the legality of the Respondents' conduct in maintaining the 1954 and 1955 union-security contracts and in signing the 1955 agreement must be considered in the light of the evidence surrounding the execution of the 1954 agreement. 2. The Respondents except to the Trial Examiner's finding that the General Counsel established prima facie that the Respondent Unions did not represent a majority of the employees covered by the August 1954 collective-bargaining contract at the time it was signed. The Respondents contend that the General Counsel was obliged to, but did not, adduce supporting testimony from more than half the approximately 150 employees working for the Respondent Company at the time of the signing in order to establish a prima facie case that the Respondent Unions did not represent a. majority of the Respondent Company's employees. There is no merit in this contention. In deciding whether the General Counsel has established a prima facie case of lack of majority representation by a contracting union at the time a contract is signed, the Board relies "not on the basis of the Trial Examiner's computation of the number of the employees in the appropriate unit but rather on all the facts and circumstances surrounding the execution of the agreement in question which reveal that the Respondent Union did not enjoy majority status at that .time." 18 Indeed, the Board has held that the General Counsel estab- lished, prima facie, lack of majority by a contracting union upon evidence very like that in the instant - case.19 In that case less than a majority of employees testified that they had not joined the con- tracting union. Nevertheles, the Board was satisfied, on the basis of 16 The Section 9 (e) election procedure was deleted by the 1951 amendment to the Act. 1' N. L. R. B. v. Gaynor News Company, Inc., 19.7 F. 2d 719, 722 (C. A. 2), affd. 347 U. S. IT. 1s Bibbard Dowel Co .. 113 NLRB 28. 6 International Metal Products Company, 104 NLRB 1076. BRYAN MANUFACTURING COMPANY 507 all the .evidence, that a prima facie case of lack of majority represen- tation had been established. Moreover, as the General Counsel did establish a prima facie case herein, it became incumbent upon the respondent to come forward with evidence to refute that showing." This the respondent did not do. Accordingly, we adopt the Trial Examiner's finding that at the time the Respondents executed the August 1954 agreement the Re- spondent Unions did not represent a majority of the employees covered by the agreement. It follows, therefore, and we find, in agreement with the Trial Examiner, that the Respondent Company violated Section 8 (a) (1), (2), and (3) and the Respondent Unions Section 8 (b) (1) (A) and (2) by maintaining in effect the 1954 agreement and by executing and maintaining in effect the 1955 agreement, both of which contained unlawful union-security clauses. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: I. The Respondent Company, Bryan Manufacturing Company, Reading and Hillsdale, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Encouraging membership in Local Lodge No. 1424, Interna- tional Association of Machinists, AFL-CIO, and/or International Association of Machinists, AFL-CIO, or any other labor organization, by entering into, maintaining, or renewing any agreement which re- quires its employees to join, or to maintain their membership in, such labor organizations as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (b) Recognizing Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International Association of Ma- chihists, AFL-CIO, or any successor to either of them, as the col- lective-bargaining representative of its employees for the purpose of sealing with the Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until Local Lodge No. 1424, Inter- national Association of Machinists, AFL-CIO, and/or International Association of Machinists, AFL-CIO, or any successor to either of them,' shall have been certified by the Board as the bargaining repre- sentative of such employees. . '° ]bid. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Performing or giving effect to the agreements of August 10, 1954, and August 30, 1955, or to any modification , extension, supple- ment, or renewal thereof, or to any other contract, agreement, or understanding entered into with Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International Associa- tion of Machinists, AFL-CIO, relating to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International Associa- tion of Machinists, AFL-CIO, shall have been certified by the Board, provided, however, that nothing herein shall be construed to require the Respondent Company to vary any substantive provisions of such agreements, or to prejudice the assertion by its employees of any rights they may have thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except 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 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) Withdraw and withhold all recognition from Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and International Association of Machinists, AFL-CIO, as the repre- sentative of any of its employees for the purpose of dealing with the Respondent Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of em- ployment, unless and until Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International Associa- tion of Machinists, AFL-CIO, shall have been certified by the Board as such representative. (b) Post at its plants in Reading and Hillsdale, Michigan, copies of the notices attached hereto marked "Appendix A" and "Appendix B." 21 Copies of said notices, to be furnished by the Regional Di- rector for the Seventh Region, shall, after being duly signed by the Respondents' respective representatives, be posted by the Respondent Company immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places, 21 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." BRYAN MANUFACTURING COMPANY 509 including all' places where notices to its employees are customarily posted.: Reasonable steps shall be taken by the Respondent Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, as to the steps the Respondent Company has taken to comply herewith. II. The Respondent Unions, Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and International Associa- tion of Machinists, AFL-CIO, their respective officers, representa- tives, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Bryan Manufacturing Com- pany to discriminate against employees in violation of Section 8 (a) (3) of the Act by entering into, maintaining, or renewing any agreement with Bryan Manufacturing Company which requires em- ployees to join, or maintain their membership in, Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or Inter- national Association of Machinists, AFL-CIO, as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. (b) In any like or related manner restraining or coercing em- ployees of Bryan Manufacturing Company in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate .the policies of the Act: (a) Post at all of their business offices and quarters servicing or used by members of Local Lodge No. 1424, International Association of Machinists, AFL-CIO, copies of the notice attached hereto marked "Appendix B." 22 Copies of said' notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by authorized representatives of both the Respondent Unions, be posted by the Respondent Unions immediately upon receipt thereof and be maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members of Local Lodge No. 1424, International Association of Machinists, AFL-CIO, are customarily posted. Reasonable' steps shall be taken by the Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Seventh Region signed copies of the notice marked "Appendix B" for posting at the Bryan Manufacturing Company's Reading and Hillsdale, Michigan, plants in places where notices to employees are customarily posted, for a period of sixty (60) consecutive days thereafter. Copies of said 21 See footnote 21. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, to be furnished by the Regional Director for the : Seventh Region, shall, after being duly signed by authorized representatives of both the Respondent Unions, be forthwith returned. to the said Regional Director for such posting. (c) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent Unions have taken to comply herewith. III. The Respondent Company, Bryan Manufacturing Company, its officers, agents, successors, and assigns, and the Respondent Unions, Local Lodge No. 1424, International Association of Machin- ists, AFL-CIO, and International Association of Machinists, AFL- CIO, their respective officers, representatives, agents, successors, and assigns, shall cease and desist from giving effect to any checkoff cards heretofore executed by the employees of the Respondent Company authorizing the deduction of initiation fees and/or peri- odic dues from their wages for remittance to the Respondent Unions, and they shall jointly and severally 23 reimburse the employees and the former employees of the Respondent Company whose initiation fees and/or dues in the Respondent Unions have been checked off pursuant to any agreement between the Respondents for the amounts deducted from the employees' earnings, beginning with the appli- cable 6-month period. MEMBER JENKINS, concurring : I agree that, by maintaining in effect the 1954 agreement and by ex- ecuting and maintaining in effect the 1955 agreement, the Respondent Company violated Section 8 (a) (1), (2), and (3) and the Respondent Unions violated Section 8 (b) (1) (A) and (2) of the Act. I not only agree that Section 10 (b) does not preclude such a finding but, for the additional reasons hereinafter stated, I find 10 (b) not applicable where the validity of a currently maintained union-security clause is at issue. Union-security clauses authorized by the proviso clause of Section 8 (a) (3) are in derogation of the rights guaranteed employees in the definitive statement of national policy contained in Section 7. That section emancipates employees from coercion and restraint by labor and management alike. Their right to engage in or refrain from concerted activity at their own election has been enacted into law. But while that section enacted into law their right to engage in or refrain from concerted activities at their election, the proviso clause allows a contractual compulsion of union membership and thus re- stricts the free choice otherwise provided by Sections 7 and 8 (a) (3). The authority so conferred by the proviso is, however, carefully- cir .23 The Respondent Company excepts to the Trial Examiner's recommendation that the Respondent Company be held jointly responsible for reimbursement of monies unlawfully collected from the employees. This Order adopts the Trial Examiner's recommendation. Charles 1V. Carter Co.-Los Angeles, et al., 115 NLRB 251; Hibbard Dowel Co., supra. BRYAN MANUFACTURING COMPANY 511 cumscribed by conditions precedent to and by limits upon its exercise. As an exception to declared public policy, a union-security clause, the conditions under which it was executed, and action pursuant to it merit, when subject to dispute, strict scrutiny. My colleagues with whom I concur in result agree that when the clause is attacked by the General Counsel as void ab initio we may test the legality of its incep- tion regardless of 10 (b) since the coercion imposed is continuous. My colleagues charge the General Counsel, however, with the burden of proving the taint or defect which renders it unlawful. I disagree. When the General Counsel attacks the clause and, by derivation, the contract as violative of the Act I believe the clause itself establishes his prima facie case and the burden of proving compliance with the conditions of the statute becomes the Respondent's. Since my think- ing on this point is so fundamentally at variance with that of all my colleagues and because I believe the question to be one of grave import to an effective administration of the Act, I feel obligated to cite the precedents and decisions upon which my conclusion is premised. I have attempted a brief history of judicial construction of the 8 (a) (3) proviso and a brief review of the law of evidence as it relates to statutory exceptions in general. The cases are authoritative, they are in point, and I believe they are binding upon us. As I have stated, the proviso in Section 8 (a) (3) is in the nature of an exception to the section which forbids any discrimination to en- courage or discourage union membership. The Supreme Court in N. L. R. B. v. Electric Vacuum Cleaner Co., 315 U. S. 685,24 stated : The provision for a closed shop, as permitted by § 8 (3), follows grammatically a prohibition of discrimination in hiring. These words of the exception must have been carefully chosen to express the precise nature and limits of permissible employer activity in union organization. [Emphasis supplied.] The general rule concerning exceptions is that the burden rests upon the party who asserts the exception to prove all the facts necessary to bring himself within such exception or exemption 25 The history of the rule is too long and well-established 26 to permit departure absent a clear and convincing intent implicit in the words of the statute. No such intent is evident in the proviso of Section 8 (a) (3) which em- ploys the customary language of all provisos. Although I agree with my colleagues in affirming the Trial Examiner and in rejecting the contention that our findings are barred by 10 (b), I believe we should not refrain from reaffirming so fundamental a principle of evidentiary 24 See also N. L. R. B. v. Don Juan, Inc., 178 F. 2d 625, 627 (C. A. 2). (In each case the court was construing the proviso of Section 8 (3). The later amendments to the sub- stance of the clause do not, of course, affect the question at issue here , i. e., the burden of proving compliance with the conditions of the proviso.) 25 20 AM Jurisprudence , Section 142. 21 See United States v. Cook, 84 U. S. 168, 176 (Dec. 1872). 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proof lest we lend color to a future claim of precedent. In Javierre v. Central Altagracia, 217 U. S. 502, 507, Mr. Justice Holmes 27 stated : The only real questions concern the ruling on the burden of proof and the propriety of the relief in such a case as this. As to the burden of proof, if that really in any way determined the result, the ruling was correct. The appellants were seeking to escape from the contract made by them on the ground of a condi- tion subsequent embodied in a proviso. It was for them to show that the facts of the condition had come to pass. . . . So there is nothing but the general question to be considered and that is an- swered by the statement of it and by repeated decisions of this court. When a proviso like this carves an exception out of the body of a statute or contract those who set up such exception must prove it. [Emphasis supplied.] Schlemmer v. Buffalo, Roches- ter, etc., By., 205 U. S. 1, 10; Ryan v. Carter, 93 U. S. 78; United States v. Cook, 17 Wall. 168; United States v. Dickson, 15 Pet. 141,165. I feel no need to dwell on the technical distinction between a proviso and an exception 28 In practice the distinction is disregarded. The enacting clause of Section 8 (a) (3) provides: Sec. 8 (a) It shall be an unfair labor practice for an employer- (3) by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discourage membership in any labor organization: . . . The proviso to this clause is a true proviso which enables an employer to defeat the enacting clause only by defeasance or excuse which must be pleaded and proved. The General Counsel who asserts the violation of Section 8 (a) (3) does not have to negative any exception as there is none contained in the enacting clause of that section. "He may then state his case in the words of the enacting clause and it will be prima facie sufficient." 21 In N. L. R. B. v. Mason Manufacturing Company, 126 F. 2d 810 (C. A. 9), the court held that the party pleading the validity of the closed shop under Section 8 (3) of the Wagner Act carried the burden of proof so The court stated, page 813: In this case the burden of proving the closed shop agreement was on the respondent. It would be a sufficient disposition to find that respondent cannot rely on such an agreement because, as the 27 See also Mr. Justice Holmes in Schlemmer v. Buffalo, Rochester & Pittsburgh Ry., 205 U. S. 1, ].0. 28 McKinney, Statutes and Statutory Construction, Section 119. 29 Id. 30 See also N. L. R. B. V. John Engelhorn & Sons, 134 F. 2d 553 (C. A. 3). BRYAN MANUFACTURING COMPANY 513, evidence discloses, it has not shown either (a) that it was made with A. F. of L. Local 15, at that time agent of a majority of the respondent's upholsterers by specific designation by each upholsterer, or (b) that Local 15 was a union constituted to be an agent for its members to bargain for a closed shop, and that mere membership of a majority of respondent's upholsterers created the agency for that purpose. However, the case before the Board was disposed of on other grounds... . The Board has likewise reached a similar conclusion by the same reasoning with respect to the proviso to Section 8 (a) (3). In Con- struction and General Laborers Union, 96 NLRB 118, it stated: However, we do not agree with the Trial Examiner that it was necessary for the disposition of this case to ascertain the precise reason for the Respondent's action in suspending Fellows and Wilson as members in good standing. Under the Act such reasons would be relevant only if there were in existence a valid union security agreement, and the discharges were alleged to have been made pursuant to such agreement. Recognizing this, the Trial. Examiner found, and we agree, that there was in fact no such. contract in existence at the time of the discharges in this case,. and that the discharges were therefore illegal regardless of the- reasons for the Respondent's suspension of the dischargees. How-- ever, he deemed himself precluded from disposing of the case on this ground, because of the failure of the General Counsel to allege the nonexistence of such a contract. We do not agree with this view insofar as it implies that the burden is on the General- Counsel, in a case of this sort, to allege the nonexistence of a valid union-shop contract. The burden is rather properly on the- respondent in such a case to plead the existence of such a contract and that the discharges were made pursuant thereto. [Emphasis. supplied.] It therefore appears that the Board, has already decided the evi- dentiary issue herein involved in the direct, unequivocal language set forth supra.31 It has followed Mr. Justice Holmes and the judicial his- tory of the burden of proof with respect to proviso clauses. I see no-, reason not to affirm our adherence to established law. I would point out that in recent testimony before the Senate Select Committee on Improper Activity in the Labor or Management Field no testimony of a more vicious practice was educed than that by which labor organ- izations and management collude, through the device of the union- a' See also Union Starch & Refining Company, 87 NLRB 779, 784, footnote 12; Guy F. At- kinson, 90 NLRB 143; CoZgate-Palmolive-Peet Co. v. N. L. R. B., 338 U. S. 355; N. L. R. B.. v. Cowell Portland Cement Company, 148 F. 2d 237 (C. A. 9) ; Wallace Corporation v._ N. L. R. B., 323 U. S. 248. 476321-58-vol. 119-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security agreement, to impose a union shop upon employees who have never designated the labor organization as their bargaining represent- ative.3a By means of this device the employees are foreclosed of all the rights guaranteed by Section 7, management reaps the fruits of a contract with minimal or nominal benefits to the employees, and the labor organization collects dues and initiation fees (under penalty of discharge) with no pretense of genuine representation of the interest of the employees. I think we are obliged to clarify for the benefit of the Charging Parties the burden of proof they are required to sustain should any of such employees seek redress. The General Counsel has alleged and proven a contract between the Respondents which violates Section 8 (a) (3) unless it conforms to the proviso therein. The Respondents have offered no proof that the contract met the conditions specified in that section which remove it from the area of statutory inhibition. I therefore find that the maintenance and enforcement of said contract since December 10, 1954, by said Respondent Company and Respondent Unions violated Section 8 (a) (1), (2), and (3) and 8 (b) (1) (A) and (2) of the amended Act. CHAIRMAN LEEDOM and MEMBER MURDOCK , dissenting : The issue at the threshold of this proceeding is whether the com- plaints are barred by the proviso to Section 10 (b) of the Act. In August 1954, the Respondents entered into a collective -bargain- ing agreement containing a union-security clause ; in August 1955, they executed a renewal agreement. The charges initiating this proceed- ing were filed against the Respondent Company in June 1955 and against the Respondent Unions in August 1955 . Based upon these charges the complaints, as amended at the hearing, allege that the Respondents violated Section 8 ( a) (1), (2), and (3) and 8 (b) (1) (A) and (2), respectively, by maintaining in effect the union-security clause in the August 1954 agreement within 6 months of the time of the filing of the charges, and by executing and maintaining the August 1955 agreement containing a union-security clause. These union- security clauses were asserted to be unlawful for the sole reason that, at the time the August 1954 agreement was executed , the Respondent Unions allegedly did not represent a majority of the employees cov- ered by that agreement. It is clear, as our colleagues agree, that Section 10 ( b) bars a finding that by executing that agreement, assuming a lack of majority, the Respondents have engaged in unfair labor practices . It is also clear, as our colleagues agree, that a determination that the Respondents have engaged in unfair labor practices by maintaining the August 1954 agreement within 6 months of the filing of the charges and by 3= See Labor Relations Reporter , issues of August 5, 12 , 19, and 26, 1957. BRYAN MANUFACTURING COMPANY 515 executing and maintaining the August 1955 agreement necessarily de- pends upon a determination that the Respondent Unions were not the majority representative in August 1954. Thus, it is apparent that in substance the allegations of the complaints herein are based upon un- fair labor practices occurring more than 6 months before the filing of the charges, and a finding of unfair labor practices based on such complaints must necessarily give controlling weight to events which occurred more than 6 months before the filing of the charges. Such a result is clearly prohibited by the Section 10 (b) proviso 33 Our colleagues have concluded, despite the clear mandate of Sec- tion 10 (b) which requires that these complaints be dismissed, that they are supported by valid charges. They reach this conclusion be- cause they fail to distinguish between union-security agreements which are unlawful because they prescribe a form of union security prohibited by the Act and union-security agreements which are un- lawful by reason of a failure to conform to the statutory requirements for the execution of a lawful agreement; because of this misappre- hension, they have misapplied the well-established principle that Sec- tion 10 (b) is a statute of limitations with respect to findings of un- fair labor practices, and not a rule of evidence. Our colleagues say that in both types of situations involving unlaw- ful union-security agreements, the invalidity begins at a point in time and continues to exist while the agreement remains in effect, the dis- tinction between the two types being in the manner of proving illegality. However, this approach seems to overlook the further dis- tinction that stems from the reasons for the invalidity of the two types of agreements. Thus, in the first type of situation, where the reason for the invalidity lies in the language of the agreement, the circumstances which cause the agreement to be invalid not only existed at the point of time in the past when the agreement was executed, but continue to exist as a present reason for invalidity each day that the agreement continues in effect. Although the continued invalidity of the agreement may therefore in a sense be related to its initial invalidity, such continued invalidity is not based solely on the initial invalidity but has a continuing independent basis. For this reason, the unfair labor practices involved in the maintenance of such an agreement may be established merely by proof of maintenance at any point of time, without reference to the circumstances surround- ing its execution. Consequently, the fact that the charges may have been filed more than 6 months after the execution of such an agree- ment can have no effect on the Board's power to find, based upon evi- dence as to the maintenance of the agreement within 6 months of the &' E. g., News Printing Co., Inc., 116 NLRB 210; Universal Oil Products Company, 108 NLRB 68. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filing of the charges, that. such maintenance was an unfair labor practice. On the other hand, in the second type of situation involved herein, where the reason for the invalidity assertedly lies in a failure in executing the agreement to comply with some or all of the requisites for making a valid union-security agreement, the circumstances which cause the agreement to be invalid existed only at the point in time in the past when the agreement was executed and are not thereafter re- peated. For this reason, therefore, the continuing invalidity of the agreement is directly related to and is based solely on its initial in- validity, and has no continuing independent basis. Accordingly, al- though an agreement invalid in its inception may continue to be in- valid throughout its life, the fact of its invalidity and the consequent existence of unfair labor practices cannot be established merely by proof that the agreement was being maintained at some point in time subsequent to its execution, but can only be established by proof of the facts, surrounding its execution in the past, which created the initial invalidity. When as here, therefore, the charges are filed more than 6 months after the execution of the agreement, proof of its invalidity and the consequent unfair labor practices can be established only by reliance on evidence of events which occurred more than 6 months be- fore the filing of the charge. This Congress expressly precluded by Section 10 (b). It is well established that in making unfair labor practice findings the Board cannot rely solely on events which occurred more than 6 months before the filing of the charges, even though evidence as to such events is admissible for background purposes; and this is so even though the effect of such events continues to be felt within the 6-month period. Thus, Section 10 (b) has been held to bar findings of unlawful discrimination when the only evidence bearing on the issue of unlawful motivation for a failure to grant a wage increase within 6 months of the filing of the charge concerned events which had occurred more than 6 months before such filing, there being no evidence that any previously existing unlawful motivation continued to exist; s4 when a layoff during an economic reduction in force within 6 months of the filing of the charge was made in accordance with a seniority status which had been established more than 6 months before such filing for allegedly unlawful reasons; 35 when replaced strikers, who made application for reinstatement within 6 months of the filing of the charge, could be found to be unfair labor practice strikers entitled to reinstatement despite replacement only on the basis of a finding that the respondent had engaged in unfair labor practices by 84 News Printing Co., Inc., supra, decided by a unanimous Board Including Members Rodgers and Bean. 85 Bowen Products Corporation, 113 NLRB 731. BRYAN MANUFACTURING COMPANY 517 unlawfully refusing to bargain more than 6 months before the filing of the charge; 38 and when an application for reinstatement made within 6 months of the filing of the charge could be found to have been unlawfully rejected only on the basis of a finding that a discharge made before-the beginning of the 6-month period was discriminatory." Further, in situations strikingly analogous to that present here, Sec- tion 10 (b) has been held to bar a finding of domination of a labor organization when the allegedly dominated organization, like the contract here, continued to exist within 6 months of the filing of the charges and within that period to affect the exercise by the employees of their rights under the Act, but the crucial events upon which any findings of unfair labor practices must necessarily be predicated oc- curred, as here, more than 6 months before the charges were filed 38 Moreover, as the alleged violations in these cited cases were not "continuing" in nature, evidence admitted for background purposes could not convert a defective charge into a valid complaint. As the charges could not support the complaints in such cases, they cannot support the complaint here 99 We note that our colleagues wholly ignore the cases cited in this paragraph, such as the Bowen case, which we believe decisive of the instant case. In the cases relied upon by our colleagues, all of the operative facts necessary to the proof of the alleged unfair labor practices occurred or existed within 6 months of the filing of the charges; such cases are therefore not authority for the result reached by our colleagues here. As has previously been pointed out in the Bowen Products case, supra, the Potlatch Forests, General Longshore Workers, and Pacific Inter- mountain cases are clearly distinguishable from the situation here. In Potlatch and General Longshore Workers the : acts ,of discrimi- nation, which occurred within the 6-month period preceding the filing of the charges, were based on unlawful policies which, although adopted before that period, also continued to exist and to be the motivating force within that period; moreover, although evidence of events antedating the 6-month period was introduced to show the origin of the motivation, there was, unlike the News Printing case, supra, independent evidence, in each, of events within the 6-month period to establish the continuing existence of the unlawful moti- 36Greenville Cotton Oil Company, 92 NLRB 1033, petition to set aside denied sub nom. American Federation of Grain Millers , A. F. of L. v. N. L. R. B., 197 -F. 2d 451 (C. A. 5). 37 N. L. R. B. V. Pennwoven, Inc., 194 F. 2d 521, at 523-525 ( C. A. 3) ; see also N. L. It. B. v. Childs Company, 195 F. 2d 617 (C. A. 2). '' Universal Oil Products Company, supra, a decision in which Member Rodgers joined ; Armco Drainage & Metal Products , Inc., 106 NLRB 725, at 730-731; Tennessee Knitting Mills, .Inc., 88 NLRB 1103 , at 1104-1105. 3e Compare Axelson Manufacturing Company, 88 NLRB 761, where the finding that the respondent had dominated the employee representation plan was based in part on the substantive provisions, of the plan which, although adopted more than 6 months before the filing of the charge, continued to exist and to be implemented within that 6-month period. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vation. Similarly, in the Pacific Intermountain case, the acts of dis- crimination which occurred within the 6-month period preceding the filing of the charges were the results of the application within that period of an agreement which, unlike the agreement here, was held to be unlawful in its inception and to continue to be unlawful because of the nature of its substantive provisions.40 In the Atkinson case, the unfair labor practice involved was an alleged discriminatory dis- charge for nonmembership in the union within 6 months of the filing of the charge, and the legality of the closed-shop contract was placed in issue, not by the General Counsel as part of his affirmative case, but by the respondent as a matter of defense; because of the posture in which this issue arose, Section 10 (b) was deemed inapplicable.41 Moreover, as a closed-shop contract is unlawful on its face under the amended Act, and its existence is therefore a continuing violation, the contract in the Atkinson case could have been a valid defense to a discharge for nonmembership in the union only if it were shown that it was exempted from the provisions of the amended Act by the savings provisions of Section 102. .With respect to the Gaynor News case, the Board held that under the doctrine of Cath,ey Lumber Company, 86 NLRB 157, the com- plaint as to the execution of the contract was supported by an original timely charge which did not mention the contract; the Board there- fore did not consider the validity of the complaint with reference to the later charge which first specifically referred to the contract. Although the portion of the court's opinion quoted by our colleagues speaks of a "continuing offense," it is not at all clear from the quoted language or its context in the opinion that the court was relying on 4° To the same effect is the quotation from the Dallas General Drivers case, footnote 12, supra, in which the court also pointed without disagreement to the Board's conclusion in the Bowen Products case, supra, that the two situations were distinguishable. 41 In his separate. opinion , -Member Jenkins similarly relies on a group of cases in which, insofar as they pertain to the legality of union -security agreements under the Act, either the legality or existence of such an agreement was pertinent only as a defense, not having been placed in issue by the General Counsel as part of his affirmative case ( i. e., Don Juan. Inc., supra ; N. L. R. B . v. Mason Manufacturing Company, supra ; Construction and Gen- eral Laborers Union, supra ; and Guy F. Atkinson , supra), or the decision turned on questions of compliance with the requirements of the section and not on questions of the burden of proof (i. e., N. L. R. B. V. Electric Vacuum Cleaner Co., supra; N. L. R. B. v. Engelhorn 4( Sons, supra ; Union Starch d Refining Company, supra: Colgate-Palmolive- Peet Co . v. N. L. R. B., supra ; N. L. R. B. v. Cowell Portland Cement Co ., supra; and Wallace Corporation v. N. L. R. B., supra ). Such cases, therefore , do not support his as- sertion that the respondent has the burden of proving lawful execution of such a contract when, as here, the issue is raised by the General Counsel as part of his affirmative case and the substantive provisions of the contract do not exceed those permitted by the Act. Nor do they support his conclusion that Section 10 (b) is wholly inapplicable "where the validity of a currently maintained union -security clause is at issue," and Section 10 (b) itself contains no such exception to its broad inhibition applicable to allegatons as to "any unfair labor practice. . . . Inasmuch as Member Jenkins' novel theory that all union -security contracts are prima facie violative of Section 8 (a) (3), which is at variance with the view of the burden of proof which this Board has taken over the years , is not even espoused by the General Counsel nor adopted by the other two members of the majority , we believe it unnecessary to discuss it at greater length. BRYAN MANUFACTURING COMPANY 519 the later charge rather than agreeing with the Board that the coin- plaint was supported by the original charge. Such ambiguous language is in our opinion a wholly insufficient basis for ignoring the clear distinction between agreements which are unlawful because of their substantive provisions and those which are unlawful because of defects in their execution. Accordingly, as the validity of the contracts here in issue necessarily depends upon the validity of the execution of the August 1954 agree- ment, and as the charges initiating this proceeding were filed more than 6 months after that event, we would, contrary to our.colleagues, find that the complaints herein are not supported by timely charges and must therefore be dismissed. If, as our colleagues suggest, the result which Section 10 (b) compels would frustrate prevention of certain unfair labor practices, only the Congress, and not this Board, is empowered to enact the necessary remedial legislation. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or In- ternational Association of Machinists, AFL-CIO, or any other labor organization, by entering into, maintaining, or renewing any agreement which requires our employees to join, or maintain their membership in, such labor organizations as a condition of employment, unless such agreement has been authorized as pro- vided in Section 8 (a) (3) of the Act. WE WILL NOT recognize Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International As- sociation of Machinists, AFL-CIO, or any successor to either of them, as the collective-bargaining representative of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other con- ditions of employment, unless and until Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or In- ternational Association of Machinists, AFL-CIO, or any suc- cessor to either of them, shall have been certified by the Board as the bargaining representative of our employees. . WE WILL NOT perform or give effect to the agreements of August 10,. 1954, and/or August. 30, .1955, or to any modification, exten- Z20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion, supplement, or renewal thereof, or understanding entered into with Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International Association of Ma- chinists, AFL-CIO, relating to grievances, labor disputes; wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International As- sociation of Machinists, AFL-CIO, shall have been certified by the Board. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such rights may be affected by an 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 withdraw and withhold all recognition from Local Lodge No. 1424, International Association of Machinists, AFL- CIO, and International Association of Machinists, AFL-CIO, as the representative of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or any other conditions of employment, unless and until Local Lodge No. 1424, International Association of Machinists, AFL-CIO and/or International Association of Machinists, AFL-CIO, shall have-been certified -by the Board as such representative. WE WILL refund to all our employees and former employees from whose wages we have deducted initiation fees and/or pe- riodic dues for transmittal to Local Lodge No. 1424, International Association of Machinists, AFL-CIO, and/or International As- sociation of Machinists, AFL-CIO, the amount of such deduc- tions and withholdings, and in accordance with the Board's direction. BRYAN MANUFACTURING COMPANY, 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. BRYAN MANUFACTURING COMPANY 521 APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL LODGE No. 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND OF INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, AND TO ALL EMPLOYEES OF BRYAN MANUFACTURING COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause Bryan Manufacturing Company to discriminate against its employees in violation of Section 8 (a) (3) of the Act by entering into, maintaining, or renewing any agreement with Bryan Manufacturing Company which requires its employees to join, or maintain membership in, our labor organizations as a condition of employment, unless such agreement has been authorized as provided in Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce the employees of Bryan Manufacturing Company in the exercise of rights guaranteed in Section 7 of the Act. WE WILL refund to all the employees and former employees of the Bryan Manufacturing Company from whose wages initia- tion fees and/or periodic dues have been deducted or withheld for transmittal to us the amount of such deductions and with- holdings, and in accordance with the Board's direction. LOCAL LODGE No, 1424, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed in Case No. 7-CA-1303 on June 9, 1955 , and a supple- mental charge therein filed on August 5, 1955 , by Maryalice Mead, an individual, the General Counsel of the National Labor Relations Board , herein called, respec- 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively, the General Counsel and the Board, by the Acting Regional Director for the Seventh Region (Detroit, Michigan), herein called the Regional Director, issued the complaint in Case No. 7-CA-1303, dated October 5, 1955, against the Bryan Manufacturing Company, herein called the_ Respondent Company, alleging that the Respondent Company had engaged in and was' engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, and 65 Stat. 601, 602, herein called the Act. Upon a charge filed on August 5, 1955, in Case No. 7-CB-280, by Maryalice Mead, an individual, the General Counsel of the Board, by the Regional Director, also issued the complaint in Case No. 7-CB-280, dated October 5, 1955, against "Local 1424, International Associa- tion of Machinists, AFL," herein called the Local Lodge,. and "International Associ- ation of Machinists, AFL," herein called the International, and jointly hereinafter called the Respondent Unions,' alleging that the Respondent Unions had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act 2. On October 5, 1955, the Regional Director issued an order consolidating the foregoing cases and a notice of hearing. Said order of consolidation and notice of hearing, along with copies of the complaints, were duly served upon the Respondent Company, the International, the Local Lodge, and the Charging Party, Maryalice Mead. With respect to the unfair labor practices, the complaint in Case No. 7-CA-1303 alleged, in substance, that: (1) The Respondent Company, on or about August 10, 1954, entered into a collective-bargaining agreement with the Respondent Unions, covering certain employees at its Reading, Michigan, plant, at a time when the Respondent Unions "did not in fact represent a majority of the employees within the bargaining unit" at the Reading plant; 3 (2) said agreement contained "union security provisions" in the form of a quoted article entitled "CHECK-OFF" and an- ,other quoted article entitled "UNION SHOP"; (3) the aforesaid checkoff and union-shop clauses have "been maintained in force and effect between" the Respond- ent Company and the Respondent Unions "at all times since August 10, 1954" with respect to the employees in the Reading plant unit; (4) said union-security clauses "have been from their inception and continue to be illegal, null and void" because the aforesaid agreement was made (a) at .a time when the Respondent Unions did not represent the employees in the unit involved and (b) at a time when the Respond- ent Unions were "established, maintained and/or assisted" by the Respondent Company by its "recognizing, dealing with, and entering into a collective bargain- ing agreement with" the Respondent Unions before said Unions had been desig- nated as their collective-bargaining representative by "any of said employees and/or a majority of said employees"; (5) "by entering into and retaining in effect the illegal union security clauses," the Respondent Company has discriminated in regard to hire and tenure of employment to encourage membership in the Respond- ent Unions, thereby violating Section 8 (a) (3) of the Act; (6) by the aforesaid acts, the Respondent Company "has sponsored, dominated, assisted, and con- tributed" to the support of the Respondent Unions and is "dominating, assisting and contributing to the support thereof," thereby violating Section 8 (a) (2) of the Act; and (7) by all of the foregoing acts, the Respondent Company has interfered 1 When the Respondent Unions and the Respondent Company are all three jointly referred to hereinafter, the term used will be the Respondents. It should be noted that the captions in both cases have been amended in certain minor respects to conform to the facts. z Except for the subsequently discussed issue of whether Mead was "fronting" for a non- complying labor organization in filing the above-mentioned charges, all three charges were duly filed. As to service of said charges, the return receipts for registered mail entered in evidence show that the original charge in Case No. 7-CA-1303 was received by the Respondent Company. on June 10, 1955; that the. supplemental charge in Case No. 7-CA- 1303 was received by the Respondent Company on August 8, 1955; and that the original charge in Case No. 7-CB-280 was received by both of the Respondent Unions by or before August 8, 1955, the International's return receipt showing the "Date of delivery" as "8-8-55" and the Local Lodge's return receipt, which has no notation in the space provided for the date of delivery, being postmarked Hillsdale, Michigan, August 6. Since the slight difference in service on the Respondent Unions is not material to the issues, August 8 will hereinafter be considered the date of service on both. The unit at the Reading plant is described as follows : All present and future employees of the Company, excepting foremen, working foremen, office or clerical employees, professional employees, guards, and all supervisors as defined in the Act. BRYAN MANUFACTURING COMPANY 523 with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. The complaint in Case No. 7-CB-280 against the Respondent Unions, parallel- ing. in major part the factual context of the complaint against the Respondent Com- pany, also recited the making and retaining in force of the August 10 agreement, the Respondent Unions' lack of majority representation among the employees in the Reading plant unit at the time said agreement was entered into, and the inclusion in said agreement of the checkoff and union-shop provisions. In such context, the complaint in Case No. 7-CB-280 more specifically alleged, with respect to the Re- spondent Unions' unfair labor practices, that: (1) The union-security clauses in the agreement "were at all times and continue to be illegal, null and void" because they contravene the proviso of Section 8 (a) (3) of the Act in that, at the time they were entered into, the Respondent Unions were "established, maintained and assisted" by the Respondent Company's "unlawful recognition" at a time when said unions were not the representative of the employees in the unit; (2) "by entering into the afore- said collective bargaining agreeement containing the illegal union security pro- visions . and by thereafter retaining in effect said collective bargaining agree- ment and the aforesaid illegal union security clauses," the Respondent Unions, in violation of Section 8 (b) (2) of the Act, have caused and are causing and attempt- ing to cause the Respondent Company to discriminate against employees at its Read- ing plant to encourage membership in the Respondent Unions; and (3) the Respond- ent Unions, by the aforesaid actions and in violation of Section 8 (b) (1) (A) of the Act, have restrained and coerced and are restraining and coercing the em- ployees in the Reading plant unit in the exercise of rights guaranteed in Section 7 of the Act. The International and the Local Lodge filed a joint answer in Case No. 7-CB-280 on October 14, 1955.4 As to the alleged business and commerce facts, the joint answer stated that the Respondent Unions were without knowledge. The joint an- swer admitted only that the Respondent Unions were labor organizations within the meaning of the Act. In their joint answer, the Respondent Unions "generally and specifically deny each and every allegation and conclusion contained" in para- graphs 6 through 12 of the complaint which contain all of the factual and con- clusory allegations pertaining to the unfair labor practices. Said joint answer con- cluded with a single paragraph asserting "affirmative defenses" which read as follows: 1. Section 10 (b) of the National Labor Relations Act forecloses the Na- tional Labor Relations Board from proceeding in this case in that the unfair labor practices alleged in the Complaint did not occur within six months from the date of the filing of the charge in this case. The answer of the Respondent Company in Case No. 7-CA-1303, for which the General Counsel gave no date for filing in his recital upon offering it, and to which the General Counsel made no objection as to untimely filing, bears on its first page two "Received" stamps of the Seventh Regional Office, one showing the date October 18, and the other the date October 31, 1955. The affidavit on the second page of the answer was sworn to before a notary public on October 28, 1955. After admitting the business and commerce allegations contained in the first three para- graphs of the complaint, the answer of the Respondent Company denied "each and every one of the allegations and conclusions contained" in paragraphs 4 through 11 of the complaint, which contain all of the factual and conclusory allegations pertaining to the unfair labor practices. The answer of the Respondent Company contained no reference to any affirmative defenses. On October 19, 1955, following telephone conversations in which it was ascer- tained that it was mutually agreeable to all of the Respondents herein to do so, the Regional Director issued an order rescheduling the hearing in this matter from October 26-to November 2, 1955. In the meantime, prior to the opening of the hearing in the, instant matter, the International, in a three-page document dated October 25, 1955, petitioned the Board to revoke a subpoena daces tecum. Said subpena had been issued on October 19, had been addressed to the International Association of Machinists, AFL, 440 National City Bank Building, Cleveland, Ohio, and required the production of various records, including such things as all authorization cards, minutes of all meetings, all expense accounts, all handbills and circulars, and all contracts or agree- ments which pertained to its activities at the Reading plant. On October 28, 1955, Stephen S. Bean, who had been duly designated to serve as the Trial Examiner in 4 I accept the above date, which appears on the "Received" stamp of the Seventh Regional Office, rather than the later date, October 20, stated on the record. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this matter, denied the International's petition to revoke. In a three-page document dated November 1, 1955, the International requested the Board for "special per- mission to appeal" Trial Examiner Bean's denial of its petition to revoke, and asked, for reasons previously advanced in its original petition, that the Board grant its "petition to revoke the subpoena." Pursuant to the order rescheduling the hearing, a hearing was held in Hillsdale, Michigan, on November 2, 3, 4, 7, 8, 16, 17, 18, 21, 22, and 23, 1955, before me, the Trial Examiner duly designated to serve in place of Stephen S. Bean. The General Counsel, the Respondent Company, and the Respondent Unions were represented by counsel and participated throughout the hearing.5 The Charging Party was present throughout the hearing, but participated only when called as a witness. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing, counsel for the Respondent Unions, informing me of the above-indicated request to appeal which the International had filed with the Board, addressed a motion to me for revocation of a similar subpena which had been addressed to the Local Lodge, and which required the production of the same type of records as the subpena which had been addressed to the International. The Respondent Company also moved to quash still another subpoena daces tecum addressed to it, which required the production of certain payroll information for the month of August 1954. Among various reasons advanced during oral argu- ment for granting these 2 motions to revoke were that both of the subpenas required the production of records for periods substantially earlier than 6 months prior to the filing of the respective charges, and hence involved matters which Section 10 (b), precludes finding to constitute unfair labor practices. In addition, this same argu- ment involving Section 10 (b) was basic to the positions of the Respondent Company and the Respondent Unions in their respective motions to dismiss the respective complaints, which motions were made at the opening of the hearing and were also argued`orally. It should be noted that during the somewhat extended argument on the foregoing four motions, the General Counsel, in opposing said motions and in outlining his theory of the case, recognized the limiting effect of Section 10 (b) with respect to findings of unfair labor practices as to actions taking place more than 6 months prior to the filing of the respective charges. After considering the opening oral argument, I reserved ruling on the respective motions of the Respondent Company and the Respondent Unions to dismiss the re- spective complaints, and denied the respective motions of the Respondent Company and the Local Lodge to revoke the respective subpenas directed to them. While various contentions of the parties will require subsequent discussion of subpena matters, it is sufficient to note at this point that the Local Lodge, in a 3-page docu- ment dated November 4, 1955, requested special permission to appeal my ruling to the Board; that 'the Respondent Company did not seek to appeal, but complied with the subpena addressed to it; that before the close of the General Counsel's case-in-chief, the Board denied the respective requests of the International and the Local Lodge for special permission to appeal from the denials of their petitions to revoke the subpoenas duces tecum; that thereafter both the International and the Local Lodge refused to comply with the respective subpenas; and that the General Counsel ultimately chose to rest his case-in-chief without seeking enforcement of either of the subpenas addressed to the Respondent Unions. While no useful purpose would be served by summarizing all of the procedural matters which arose during the course of the hearing, certain additional matters should be noted now, while others will be alluded to or ruled upon subsequently in this report. On the first day of the hearing, and before witnesses were called, the General Counsel moved to amend the complaint in both cases by adding allega- tions to each complaint with respect to an agreement of about August 30, 1955, allegedly entered into between the Respondent Company and the Local Lodge, which not only included the employees previously covered in the Reading plant, but also involved all similar classifications at a second plant in Hillsdale, Michigan. The effect of the proposed amendments, of which notice had been given by letters dated October 21, 1955, to the respective Respondents, was to place the August 30, 1955, agreement in issue in the respective complaints as violative of the same sections of the Act as have been above detailed with respect to the 1954 agreement. The foregoing. motions to amend the complaints were granted without opposition, and the respective answers were amended to include denials of the allegations thus added. Upon my granting the foregoing amendments , the Respondent Unions moved to dismiss the complaint in Case No. 7-CB-280 on the ground that the controversy 8 Both of the Respondent Unions were represented throughout the hearing by Attorney Poulton. The Respondent Company was represented at the hearing by Attorney Gallucci. BRYAN MANUFACTURING COMPANY 525 had been rendered moot because the 1955 agreement had superseded the 1954 agreement. Following oral argument on this motion, I denied said motion without prejudice to its renewal. Thereafter it was established by agreement among the parties that the correct name of the IAM's local is Local Lodge No. 1424. The Respondent Unions also amended their answer to admit the allegations of the com- plaint in Case No. 7-CB-280 as to the Respondent Company's business and com- merce. The Respondent Company acknowledged on the record that "on informa- tion and belief," the International and Local Lodge were both labor organizations within the meaning of the Act. Before the General Counsel rested his case-in-chief, he sought to introduce into evidence four documents, numbered for identification as General Counsel's Exhibits Nos. 9, 10, 11, and 12. These 4 documents pertain to 2 attempts by the General Counsel to subpena as a witness the representative of the International who signed the 1954 agreement, E. L. Schwartzmiller. Without considering now the ultimate significance of the failure of Schwartzmiller to appear at all as a witness at the hearing, the aforesaid offered exhibits are hereby rejected because, after giving much thought to unusual factors involved, I am not convinced that a sufficient foundation has been laid to establish service of either of the two subpenas on Schwartzmiller.6 In due course, the General Counsel eventually, albeit with apparent reluctance, announced that he would rest his case without seeking enforcement of the subpoenas duces tecum against the Respondent Unions. The Respondent Unions thereupon moved to dismiss on the ground that the General Counsel had not established a prima facie case. The Respondent Company made a similar motion to dismiss. Oral argument on the record was then held upon the question of whether or not the General Counsel had established a prima facie case. Upon considering the matter, I denied the motions of the Respondents to dismiss, without prejudice to their renewal. Of the various procedural problems arising during the course of the cases of the Respondent Company and the Respondent Unions, one needs to be mentioned at this point, an amendment which I granted to the answer of the Respondent Unions which had the effect of adding the fronting issue to the above-summarized issues in the instant matter. By said amendment, which was granted only after full consid- eration of the contentions of the parties, the following additional affirmative defense was added to the answer of the Respondent Unions: 2. The Charges in these cases were filed by the Charging Party on behalf of and at the instigation of Local 701, UAW-CIO, a union not in compliance with the filing requirements of the National Labor Relations Act, as amended, at the time the Complaint in this matter was issued; therefore, the Complaint in these cases should be dismissed since the Charging Party is "fronting" for a non-complying union. Before the close of the hearing, the Respondent Unions and the Respondent Com- pany renewed and made motions to dismiss on various grounds. In essence said motions, upon which I reserved ruling, pertain to Section 10 (b) of the Act, fronting, failure of the General Counsel to establish a prima facie case, and failure of the evidence to establish various allegations of the complaints. For reasons subsequently appearing herein, all of said motions to dismiss upon which ruling has been reserved are hereby denied, except to the extent that findings and conclusions which follow indicate specifically that certain allegations of the complaints have not been sustained, and are dismissed. Mention should also be made of an offer of proof by the General Counsel on the fronting issue. Said offer was rejected, without prejudice to resuming the hearing if it were thereafter decided that such evidence should be received. For reasons which appear below, I have decided not to reopen the hearing to receive apparently extensive evidence in connection with said offer of proof. All parties were afforded opportunity to argue orally upon the record and to file briefs and proposed findings and conclusions. In view of the extent to which the parties had already argued on the record, all parties waived oral argument, preferring to file briefs. Pursuant to an extension of time to December 27, 1955, granted by the Chief Trial Examiner, briefs have been filed by the Respondent Company, the Respondent Unions, and the General Counsel. On the basis of the entire record in the case, my observation of the demeanor of the witnesses at the hearing, a careful analysis of the evidence, which is in many 6 This is not to say that the Board or the General Counsel, in an administrative capacity, may not deem it appropriate and desirable to look further into certain aspects of this matter. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respects confused and contradictory, and my consideration of the various positions taken by the parties during the hearing and in their briefs, I make the following: 7 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Bryan Manufacturing Company, herein called the Respondent Company, is an Ohio corporation which has, at all times herein material, been engaged in manu- facturing electrical products at several plants which it has been operating in Bryan and Monticello, Ohio; North Manchester and Peru, Indiana; and Reading, Michigan. In the usual and ordinary course and conduct of its business, the Respondent Com- pany has, over a long period of time, continuously caused large quantities of raw materials and equipment, used in the manufacture of its products, to be purchased and transported in interstate commerce, from and through States of the United States, including the State of Michigan. The Respondent Company has similarly continuously caused large quantities of its products to be sold and transported in interstate commerce, from its various plants situated in the three above-mentioned States, into and through the several States of the United States, including the State of Michigan. During the calendar year 1954, which is representative of all material times, the Respondent Company sold and shipped in interstate commerce, as above described, finished products valued in excess of $250,000. Also during said calendar year of 1954, the Respondent Company sold and shipped in interstate commerce, from its plant at Reading, Michigan, to points outside of the State of Michigan, finished prod- ucts valued in excess of $50,000.8 In addition, during the aforesaid calendar year, the Respondent Company sold finished products, produced by its Reading plant, valued in excess of $100,000, to enterprises within the State of Michigan to be di- rectly utilized in the production, processes, or services of said enterprises, each of which in turn shipped finished products outside of the State of Michigan, which'were valued in excess of $50,000. , The only plants of the Respondent Company which are involved in the instant matter are its above-mentioned plant at Reading, Michigan, and a new plant which commenced operations shortly before the opening of the hearing in the instant mat- ter, and which is located in Hillsdale, Michigan, some 12 miles from the Reading plant. These two plants are hereinafter called, respectively, the Reading plant and the Hillsdale plant. The respective answers admit the allegations of the respective complaints that the Respondent Company has been at all material times engaged in commerce within the meaning of the Act, and I so find. H. THE LABOR ORGANIZATIONS INVOLVED International Association of Machinists, which is referred to herein as the Interna- tional and also as the TAM, the term usually used for it by the witnesses, is a respond- ent in Case No. 7-CB-280. It is a labor organization presently affiliated with the American Federation of Labor-Congress of Industrial Organizations. However, at the time of the events subsequently discussed herein, the International was affiliated with the American Federation of Labor. Local Lodge No. 1424, International Association of Machinists, also a respondent in Case No. 7-CB-280, is herein called the Local Lodge. It is a local lodge of the International which admits to membership employees of the Respondent Company's Reading and Hillsdale plants. The Local Lodge is a labor organization within the meaning of the Act. 7 The record is hereby corrected in the following particplars : Page 392, line 4, the word "required" is corrected to read "recorded." Page 893. line 23, the word "offense" is corrected to read "defense." Page 1043, line 1.0, "and now this continues" is corrected to read "and no more con- tinues." Page 1105. line 3 , the word "that" is corrected to read "what." Page 1105. line 4, "is not the issue" is changed to read "has put in issue." The word "administerial" Is corrected to read "ministerial" whenever It appears on pages 1104 to 1106. 8 The brief of the Respondent Company more specifically identifies the products. of its Reading plant as "electrical wire assemblies." BRYAN MANUFACTURING COMPANY 527 Local 701, International Union, United Automobile, Aircraft & Agricultural Im- plement Workers of America, is presently affiliated with the American Federation of Labor-Congress of Industrial Organizations, but was formerly affiliated with the Congress of Industrial Organizations. It is the labor organization for which the Respondents contend that the Charging Party, Maryalice Mead, was fronting when, she filed the charges in the instant matter. The aforesaid organization, which is a. labor organization within the meaning of the Act, will be referred to as Local 701. As appears more fully below, it rendered assistance to its parent organization, herein referred to as the UAW, in organizing activities among employees at the Reading plant. Local 701 is an amalgamated local representing employees of several plants. in Hillsdale and vicinity. III. THE UNFAIR LABOR PRACTICES A. A general survey of the setting, the events, the evidence, and the issues. In a case such as this one, which involves many evidentiary and legal problems, some of them complex and others novel, it is usually helpful to present at the outset a general picture of what is involved. Thus the purpose of this section is to round out what has already been stated in such a way as to provide general orientation to the more detailed findings which follow, and to indicate the inter- relationship of the events and the issues. Broadly speaking, this case is concerned with whether or not there has been infringement upon the self-organizational rights of the Respondent Company's production and maintenance employees, primarily at its Reading plant. The ma- terial events begin about the middle of July 1954, when the IAM requested recog -nition for, and the UAW began signing up, employes of the Reading plant,9 who, are predominantly women. In conducting its activities, the UAW was assisted by some of the members of Local 701, including the president thereof, Farn Salomon., who figures prominently in the fronting problem. On August 16 and 17, 1954, before the UAW secured designations from a majority of the employees or made any claim to representation to the Respondent: Company,'° numerous conversations, negotiations, and meetings pertaining to the TAM, often involving the above-mentioned representative of the International, E. L. Schwartzmiller, took place at various points in Reading, including the plant and' a meeting hall. One of the major evidentiary problems pertains to determining- as nearly as possible, from the voluminous evidence of numerous witnesses called by the General Counsel, what actually occurred during this 2-day period when Schwartzmiller, so far as the evidence showk, made his first appearance among- the employees of the Reading plant. It should be noted at this point, however, that Schwartzmiller's appearance in Reading had been preceded by negotiations. elsewhere which had resulted in the basic provisions of an 11-page general agree- ment which is dated August 10, 1954, and which has 2 supplements, the first cover- ing wages, dated August 17, 1954, and the second covering seniority, dated September 2, 1954. The foregoing agreement , to which the Respondents have given effect, is the one. involved in the above-described original allegations of the two complaints in this matter. Thus a determination of when and how that agreement was negotiated- and signed, particularly with respect to other events, is quite important, and the. positions of the parties with respect thereto are in sharp conflict. The General' Counsel contends that it was on August 10, 1954, before the Respondent Unions had engaged in any organizational activities among the employees covered thereby, that the Respondent Company and the International "signed a union security con -tract which required membership in Respondent IAM as a condition of employ- ment." By contrast, the Respondent Unions and the Respondent Company fix the execution of the agreement as August 17, after the employees had ratified it at meetings conducted by the International. The difficult evidentiary problems which arise in determining such issues are augmented by the fact that neither the then vice president of the Respondent Company, Adams, who signed the agreement,. nor the representative of the International who signed it, Schwartzmiller, appeared as witnesses at the hearing. Leaving for the moment various problems as to evidence, dates, and chronology, it is apparent that by the end of August 1954, the UAW had engaged in the last 9 There is some evidence that preliminary activities by the UAW got underway somewhat- earlier. 10 There is no contention that the UAW ever secured or claimed such a majority, and the General Counsel concedes that the Midwest Piping doctrine is not herein applicable, 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its organizational activities, the distribution of a leaflet outside the plant, and that Schwartzmiller had conducted a general meeting of employees in Reading at which officers for the IAM were'elected. It should also be noted that about this time, or not long thereafter, President Salomon of Local 701 was informed by two different international representatives of the UAW that because of "a non- raiding pact" between the UAW and the IAM, they were "to drop all matters" pertaining to organizing the Reading plant employees because the JAM had "a signed agreement there." Turning now briefly to the fronting issues, it is significant that while Salomon conveyed the foregoing instructions of the international representatives to the other officers of Local 701, he personally did not like those instructions. ' However, Salomon does not again enter the picture until the spring of 1955, when a number of employees who were not satisfied with conditions at the Reading plant or the accomplishments of the IAM there, held a number of meetings in private homes. Salomon was present at and participated in some of these meetings, in which the Charging Party also participated. In addition, before Mead was accompanied by Salomon to the Regional Office in Detroit when she filed the original charge in Case No. 7-CA-1303 on June 9, 1955, she had also on several occasions seen Salomon in regard to problems of employees at the Reading plant, where Mead continued to be employed until October 1955. It is clear that Local 701 was not in compliance when the two complaints in the instant matter were issued on October 5, 1955. But various questions as to Local 70l's intermittent compliance and lack of compliance, and the many conten- tions of the parties as to tronting matters, will be reserved for treatment until toward the end of this report because I am convinced, after protracted study of the record, that some aspects of these complicated fronting issues can best be evalu- ated after other matters have been detetmined. Chronologically speaking, the remaining issues center around events during August 1955. These issues were added at the beginning of the hearing by amendments to the complaints which have already been summarized. They pertain to a 3-year agree- ment, dated August 30, 1955, which embraces the production and maintenance em- ployees at the Reading plant and at a second plant in Hillsdale, which the Respondent Company was apparently in the process of acquiring at the time the agreement was being negotiated, and which did not start operations until approximately 2 months after the agreement was signed. This agreement, a printed copy of which is in evidence, was signed by six employees for the Local Lodge, and also by Carl Ceder- quist, a Grand Lodge representative, who is mentioned at various places during the testimony, but was not a witness at the hearing. However, Eugene McFann, who signed the August 1955 agreement for the Respondent Company, was a witness and testified concerning circumstances surrounding the negotiations and execution of this current agreement, which still has well over 2 years to run. It should be noted at this point that while majority status is challenged by the General Counsel as to both the August 1954 agreement and the August 1955 agreement, the unit included in neither agreement is challenged . In short, there is no contention that the expan- sion of the unit in the 1954 agreement to include the same employee classifications at the recently opened Hillsdale plant, along with those same classifications at the Reading plant, makes the thus expanded unit in the 1955 agreement in any way in- appropriate. What has been said thus far places the general issues in their chronological setting and suggests the nature of some of the evidentiary problems. Broadly speaking, the witnesses fall into two groups. The first group consists of 23 witnesses called with respect to the unfair labor practice issues related to the 2 agreements. Of those witnesses, 22 were called by the General Counsel, 3 of them under rule 43 (b) of the Rules of Civil Procedure, Title 28, and 1 witness was called by the Respondent Company. On the fronting issues, the Respondent Unions called 3 witnesses, 1 of them under rule 43 (b), and the General Counsel called 4 witnesses. For the present, our discussion will be directed to the evidentiary and credibility problems pertaining to the evidence adduced on matters related to the unfair labor practices. At the outset, it should be noted that much of this evidence is essentially circum- stantial in nature and might not have been adduced had there been compliance with the already mentioned two subpenas directed, respectively, to the International and to the Local Lodge. In fact, the parties take sharply differing positions as to the evidentiary bearing of this failure to comply. The General Counsel's brief describes this failure as "contemptuous refusal of the Respondent Unions to produce sub- poenaed records which could have revealed" the majority status, and views it as "in- BRYAN MANUFACTURING COMPANY 529 contestable proof of the lack of majority." In contrast, the Respondent Unions es- sentially contend that their refusal to comply with the subpenas has no evidentiary bearing whatsoever, because it was based on valid legal grounds, and that said re- fusal in no way lightens the General Counsel's burden of establishing lack of majority by a prima facie case. In taking a position similar to that of the Respondent Unions, the Respondent Company's brief questions why the General Counsel did not choose to seek enforcement of the subpenas, answers that the inference is clear that the Gen- eral Counsel "did not deem it to his advantage to compel production of the requested information," and asserts that the General Counsel "cannot now be heard to -rely upon any spurious inference it may feel can arise from such a legal and valid refusal." While it will be necessary in a subsequent section of this report to appraise the failure of the Respondent Unions to produce any evidence on certain matters, I want to make it clear that, after giving much thought to the matter, I am not relying in any way in reaching my determinations herein on the failure of the Respondent Unions to comply with the subpenas. Further, I do not believe that any inference adverse to the General Counsel can be drawn from his failure to seek enforcement of the subpenas involved, when all of the-circumstances of this case are considered. Similarly, I draw no adverse inference because counsel for the Respondent Company, after first insisting that the testimony of Schwartzmiller (whose presence 2 sub- penas for the General Counsel had failed to produce) was necessary to the Respond- ent Company's defense, later chose to waive calling Schwartzmiller as a witness, after having failed for approximately a week to effect service of 2 subpenas on Schwartz- miller. But the question of the failure of the Respondent Unions to call Schwartz- miller as a witness is another matter, which will be discussed later. In any event, the General Counsel was not under any obligation to call Schwartzmiller as a witness in his case. Everything considered, I believe it is enough to say at this point that, after thoughtful analysis of the contentions of the parties and what I believe to be ap- plicable legal principles under all of the unusual circumstances here involved, I draw no inference adverse to any of the parties because of any matter pertaining to any subpena which was issued. Having thus divorced subpena problems from evidentiary and credibility problems, we turn now to the latter problems. From what has been said, it must be clear that I am convinced that the voluminous evidence adduced by the General Counsel on the unfair labor practice aspects involved in the instant matter must be carefully sifted to determine as precisely as possible what material facts have been established there- by. This T have patiently done. always duly mindful of the contentions of the parties with respect to credibility problems, and of the fact that strong feelings have been generated by the circumstances involved in this case. We come now to some general conclusions with respect to credibility contentions and problems applying to all issues in the instant matter. It is evident that with many witnesses testifying as to numerous different matters, it would protract this report greatly to summarize all of the testimony, or to spell out fully the confusion and inconsistencies therein, much of which is not too surprising, in view of the fact that, with respect to the events of August 1954, there had been a lapse of almost 15 months before testimony was given in November 1955. Moreover, in the light of my observation of the demeanor of the witnesses at the hearing, and after intense scrutiny of the record, all of which has been carefully read, and parts of which have been reread and rechecked several times, I cannot agree that the testimony given by the General Counsel's witnesses is generally unreliable and unworthy of belief." True, a number of the General Counsel's witnesses had manifest varying degrees of interest in the UAW. But there were other witnesses for the General Counsel, whose versions were not materially different on most matters, who were not shown, to have been interested in or partisan to the UAW. Everything considered, I have become convinced that, in the main, the witnesses for the General Counsel, almost all of whom were under subpena, attempted to tell the truth, as best they could recall it. In any event, I am satisfied that my critical Ii The Respondent Company's brief characterizes the General Counsel's witnesses as "a very small and dissident group who would have been against almost anything decided upon 'by the majority of the employees" ; alludes to the "demeanor and attitude of the disgruntled minority" : and asserts that these witnesses manifested "varying degrees of prejudice in their testimony." The similar position of the Respondent' Unions is shown by the follow- ing quotation from their brief : , The General Counsel's witnesses, all of whom were UAW-CIO adherents, dissatisfied with their collective bargaining agent , and in general disgruntled employees, were certainly hot reliable or credible witnesses. 476321-58-vol. 119-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .analysis of the testimony, which has resulted in a composite picture, furnishes a reliable basis for the findings made throughout this report.12 Before turning to a more detailed analysis of the events during the summer of 1954, which surround the signing of the first agreement and its two supplements, some observation should be made with respect to the Section 10 (b) contentions, which will await ultimate decision until the facts have been further developed. The General Counsel concedes that the 6-month limitation of Section 10 (b) of the Act precludes currently finding the execution of the 1954 agreement to be an unfair labor practice, and also precludes currently finding its enforcement to be an unfair labor practice as to the respective Respondents, at any time prior to the respective periods beginning 6 months prior to the respective charges in these 2 cases. How- ever, this concession in no way detracts from the crucial nature of the earlier events, because at the core of the General Counsel's contentions as to all of the unfair labor practices is his fundamental position- that, because of the circumstances prevailing when made, the original union-security agreement of 1954 has ' never been valid or legal, since it has never met certain overriding requirements of Section 8 (a) (3) of the Act. In essence, said pertinent provisions, which are con- tained in the first of the two provisos in Section 8 (a) (3), are that (a) the labor organization shall not be established, maintained, or assisted by any action which is an unfair labor practice, and (b) such labor organization shall be the repre- sentative of the majority of the employees in an appropriate unit when the agree- ment is made. B. The agreement dated August 10, 1954, as supplemented; its provisions, negotiation, and execution A photostatic copy of the original signed agreement dated August 10, 1954, and its 2 signed supplements, provides 1 of the uncontested elements in this case. We start with a description of this document, a summary of the pertinent provisions of its 3 component sections, and an explanation of the dates and signatures contained on each of these 3 sections, which on their face show differences as to type, margin, arrangement, and paper.13 . . . , The first and longest section of the 1954 agreement contains 11 pages, which obviously form 1 unit. This unit, clearly a basic labor contract containing 22 articles, opens with a prefatory paragraph stating that said agreement was "made and entered into the 10th day of August, 1954," between the "BRYAN MANU- FACTURING COMPANY" and the "INTERNATIONAL ASSOCIATION OF MACHINISTS, affiliated with AMERICAN FEDERATION OF LABOR." It con- cludes on page II with 2 signatures, that of Vice President Adams for the "BRYAN MANUFACTURING COMPANY" and that of Schwartzmiller for "INTERNA- TIONAL ASSOCIATION OF MACHINISTS, A. F. L." The signatures of these two individuals, neither of whom was called as a witness, immediately follow a concluding paragraph on page 11 which reads: IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the day and year first above written. These 11 pages, which we will refer to as the basic agreement, cover in consid- erable detail such basic subjects as are customarily included in a collective-bargain- ing contract, except that 2 of the 22 articles, one entitled "Wages" and the other entitled "Seniority," specify that the respective rates and provisions as to wages and as to seniority shall be those subsequently agreed upon and incorporated as exhibits., The one covering wages was to be designated as Exhibit A, and the other covering seniority as Exhibit B. Both were to be attached to the basic agreement and made a part thereof. Among the remaining 20 articles, which 12 This is not to say that individual witnesses were not confused on certain matters or that there were not variations in their objectivity and convincingness. But it also should be noted that the candor with which some witnesses admitted, during long and searching examinations, that they could not be certain as to dates or the exact words used, only serves to add credence to what a careful study of their testimony shows they honestly believed to be the facts. 13 Such differences, especially in the paper, were even more apparent from the original document, which was used throughout the hearing, than from the photostatic copy in evi- dence. Incidentally, I have no doubt that the placement of Exhibit B ahead of Exhibit A in this document, a factor which caused some confusion in the examination of witnesses at the hearing, was a clerical inadvertence, probably occurring at the time the original agreement was reassembled after microfilming at the office of the International in Washing- ton, and that originally Exhibit A preceded Exhibit B , as the dates thereon, Indicate. BRYAN MANUFACTURING COMPANY 531 cover their respective subjects without such reservations, the first 3, entitled, re- spectively, "Recognition," "Check-off," and "Union Shop," and the last 2, entitled, respectively, "Alteration of Agreement" and "Amendments and Termination" war- rant some discussion at this point.14 . The first article provides for the recognition of the international by the Respond- ent Company 15 "as the sole and exclusive bargaining agency for all employees within the bargaining unit" specified therein, which is identical with the unit contained in the allegations of the two complaints, already set out hereinabove in footnote 3. This article on recognition also further specifies that the "Company will bargain collectively with the Union with respect to rates of pay, wages, hours and other conditions pertaining to employment for all of the employees in the unit." The second article, entitled "Check-off," provides, along with procedures for deducting, remitting, and recording, that the Respondent Company, upon receipt of "a signed authorization of the employee involved," shall deduct from his last paycheck each month "the initiation fee and dues payable by him" to the Inter- national,' during the period provided for in said authorization. The next article, which has only one section, and which it is not contended contains any language which makes its provisions illegal per se, is set forth here- with verbatim: ARTICLE III UNION SHOP SECTION 1. As a condition of employment, all employees covered by this agreement shall, forty-five (45) days after the date of execution of this agree- ment, or in the case of new employees forty-five (45) days after the date of hiring, become members of the Union , and remain members in good standing in the Union during the term of this agreement. Certain provisions of the last two articles of the basic agreement, to which we now turn, are significant, particularly in view of the fact that within about a year another agreement, dated August 30, 1955, was entered into, extending the unit coverage to, :include the Hillsdale plant.16 Article XXII provides that the basic agreement ."shall be in full force and effect from August 10, 1954 to August 10, 1956, and shall automatically remain in full force from year to year thereafter," in the absence of written notice of desire to amend or modify given not less than 60 days prior to the agreement's expiration date. As to article XXI, the provision here material specifies that no alteration, variation, waiver, or modification of the basic agreement is to be "binding upon the parties hereto unless such agreement is made and executed in writing between the parties hereto." Before leaving this basic agreement, it should be noted that only 2 changes were made in the typed provisions contained in its 11 pages. Both were made by hand , and were initialed by both Adams and Schwartzmiller. The first change involved a single word: Friday was changed to Wednesday, so that a phrase in the checkoff provision, as changed, called for deductions "from the paycheck received on the last Wednes- day of the month." The other change made the "trial period" for new employees in article- X "sixty (60)" days instead of "ninety (90)" days. We turn next to a two-page supplement on wages, captioned "Exhibit A," most of the second page of which is taken up with signatures. The first signature is that of Vice President Adams for the Respondent Company. Next follows, under the designation "INTERNATIONAL ASSOC. OF MACHINISTS," the signature of Schwartzmiller. Thereafter, under the designation "Temporary Bargaining Com- 14 The titles of the remaining articles are : "Management Powers," "Non-Discrimination," "Hours-Overtime," "Paid Holidays," "Reporting and Call-in Time," "New Employees," "Vacations," "Shop Committee," "Grievance Procedure," " Insurance," "Bulletin Board," "Leave of Absence," " Safety," "General," and "No Strike or Lockout." 15 While the terms actually used in the basic agreement are "the Union" and "the Company," there can be no doubt as to their meaning in terms of the designations used herein for the respective parties. 18 It would be well to keep in mind a contention as to this 1955 agreement, which is ad- vanced in the brief of the Respondent Unions in the following language : This agreement is neither an extension, a renewal nor a modification of the original contract and, indeed , involves different parties-the original agreement having been between the International and the Employer while the new agreement is between Local Lodge 1424 and the Employer. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee for Reading Plant" there appear 14 signatures of employees at the Reading plant, most of whom were at least mentioned at some point during the testimony, and 2 of whom, Myrtle Long and Lillie Shaffer, testified about the circumstances surrounding their signing.17 The opening sentence of this wage supplement incor- porated it fully in article IX of the August 10 basic agreement. The specified wage rates were made effective as of August 10, and involved a 5-cents-per-hour wage increase for all employees, with a further 5-cents-per-hour increase in De- cember 1954. The wage rates were to remain in effect until August 10, 1955, when "hourly wage rates only" could be reopened, upon 60 days' written notice given prior thereto.18 Above the signatures on the second page of this wage supplement appears the date "August 17th, 1954." The remaining supplement on seniority, captioned "Exhibit B," is also a two- page section which is "Dated this 2nd day of Sept., 1954" on its second page above the signatures. The first signature appearing is again that of Vice President Adams for the Respondent Company. Under Adams' signature, there appears the desig- nation "INTERNATIONAL ASSOCIATION OF MACHINISTS-A.F.L.," which is followed merely by six signatures, without any indication of the capacity of any of the individuals. However, all 6 of those signing are shown by the record to be employees at the Reading plant, and 1 of them, Iola Joice, testified as to the circumstances surrounding her signing of this supplement on seniority.19 The opening sentence of Exhibit B incorporates it fully as article XII of the August 10 basic agreement. As to the provisions therein, it is sufficient to say that there are 11 sections which go into a good deal of detail in specifying principles and procedures as to a variety of matters pertaining to seniority. It should be noted that while Exhibit B contains only two pages, its margins are quite narrow. Un- like the other sections of the 1954 agreement which are double spaced, Exhibit B is single spaced and is, for instance, considerably longer and more involved than Exhibit A. We come now to questions about negotiating and signing the 1954 agreement, particularly the I1-page basic agreement which contains the union-shop and checkoff -provisions. The General Counsel's brief would fix its execution as August 10, 1954, relying on the recital therein that it was "made and entered into" on that date, and apparently brushing aside as "vague, indefinite and self-contradictory" the extensive testimony of Leslie J. Westbrook, who, at the time he was called as a witness by the General Counsel under rule 43 (b), was the Respondent Company's vice president and was responsible for its labor relations at the Reading plant, and who had been the plant manager of the Reading plant when the 1954 agreement was negotiated and signed. By contrast, counsel for the Respondent Company, devoting several pages of his brief, tto verbatim citations from Westbrook's testimony, argues that when Westbrook's testimony "is read completely, it is clear that no contract was signed until August 17, 1954," and that the August 10 date "was used by the parties solely for the purpose of making the terms of the contract retroactive to August 10, 1954, the date of the first meeting between Company and Union." After having twice read through completely the approximately 125 pages of the record containing Westbrook's testimony, and after having additionally studied quite intensively several parts of it in the light of the record as a whole, I am convinced, in view, of my impression of Westbrook as a witness, that the facts material to determining the issues in this case fall somewhere between the above-stated posi- tions of the General Counsel and the Respondent Company. There is certainly con- fusion and vagueness in several parts of Westbrook's testimony, and it would too greatly protract this report to attempt to present a reasonably complete resume of his testimony. It should be noted, however, that all of Westbrook's testimony cited in the Respondent Company's brief, following its contention that no contract was signed until August 17, is from the first part of the examination of Westbrook by the General Counsel, some of it occurring' before the 1954 agreement, with its various above-described parts, was furnished to the Respondent Company by the 17 Two other employees who also signed Exhibit A were called as witnesses upon other matters, but were not questioned about their signing the wage supplement. Those two were Imojine Sperbeck, the president of the Local Lodge at the time she was called under rule 43 (b) by the General Counsel, and Florence Napier, who was called by the Respondent Unions on the fronting issues. 15 It will be recalled that the original term of the basic agreement was from August 10, 1954, to August 10; 1956. . 19 This seniority supplement,, like the one on wages, was ;also signed by Sperbeck and Napier, the two witnesses mentioned in an earlier footnote, but, neitherjestifled. as to her signing Exhibit B. BRYAN MANUFACTURING COMPANY 533 Respondent Unions for submission to the General Counsel, after which it was examined by Westbrook.20 A careful appraisal of Westbrook's testimony as a whole shows that, during the early part of his testimony, when he was insisting that the agreement had not been signed until August 17, Westbrook was using the term "signed" to designate the point when there was "a contract signed by all parties." 21 However, it was not until the sequence of developments with respect to the 1954 agreement began to be rounded out, during the testimony of Westbrook upon ex- amination by counsel for the Respondent Company, that certain significant details emerged. In my opinion, it is this later and less defensively given testimony of West- brook, after his recollection had obviously been refreshed,22 that assists us most in determining how the basic agreement was negotiated and signed. Relying largely on such parts of Westbrook's later testimony as appear reliable in the light of all of Westbrook's testimony and the record as a whole, I make the following findings as to the negotiation of the basic agreement and as to when Adams, who is no longer associated with the Respondent Company, signed it. Westbrook first heard from the IAM when he received a letter on the stationery of the International, which was signed by Schwartzmiller as its representative. Said letter was dated Zanesville, Ohio, July 17, 1954, carried the subject designation "Union Recognition," and was addressed to the Respondent Company at Reading, Michigan, "Attention: Plant Manager." 23 The body of this brief letter, which in- dicates no readiness to establish the actual existence of the majority claimed therein, is herewith quoted in full: Please be advised that the International Association of Machinists represent a majority of the "production and maintenance" employees of your company. This is to request a meeting at your earliest convenience to discuss the terms of a collective bargaining agreement. I will be available for such meeting any- time the week of July 26, 1954. Please advise me of the time, date and place you wish to meet. Looking forward to a mutually pleasant and amicable relationship, I am, Upon receiving the foregoing letter, Westbrook telephoned the office of counsel for the Respondent Company and talked with Attorney Walter F. Probst, who had been giving him legal advice for many years. Westbrook told Probst about receiving the letter and what it stated, and he asked Probst for his advice. Probst stated that he "would advise recognizing them because he had been doing business with them in other plants," 24 indicating that he had been "doing business" with the IAM in San Diego, California; Lancaster, Ohio; and Zanesville, Ohio. Probst told West- brook that he had found in his dealings with the IAM that whenever a company had "contested," the JAM had "won out." In essence, Probst also told Westbrook, 20 The pages of the transcript, from which the Respondent Company's brief at pages 8 to 14 cites testimony of Westbrook, range from page 105 to page 143. Westbrook's testimony as a whole begins on page 102 and runs to page 228. The General Counsel's original ex- amination begins on page 102 and ends on page 177. The examination of Westbrook by the General Counsel after the entire 1954 agreement had been made available and briefly ex- amined by Westbrook begins at page 128. 21 From the 3 above-described component parts of the entire 1954 agreement, it is obvious that no employees of the Respondent Company signed anything until the 14 em- ployees who formed the Temporary Bargaining Committee signed the wage supplement, dated August 17, 1954. 22 For instance, toward the end of his testimony, Westbrook answered a question by the General Counsel thus: I will grant you it was hard to remember all of the dates this morning, but after all day here you have time to think a little more than you had at that time. x' Despite the challenge of the General Counsel as to the authenticity of this letter, and the doubt cast upon it by its failure to bear the usual time-date stamp of the Respondent Company showing when it was received, I accept Westbrook's consistently given testimony that he did receive this letter shortly after the date appearing thereon. It should be noted that the signature of Schwartzmiller on this letter, which is in evidence, appears to be the same as his signatures appearing on the 1954 basic agreement and on the wage supplement, which signatures none of the parties challenge, but that it differs from the signatures appearing on the return receipts for registered mail, which form part of the above rejected General Counsel's Exhibits Nos. 9 and 12. 21 Neither Probst nor his associate who represented the Respondent Company at the hearing, Gallucci, testified at the hearing, and all quotations in this section are from the testimony of Westbrook. .534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among other things, that he had found the IAM "fair to work with"; that he was dealing with them at the time in Lancaster; and that he thought that they "could get along" and that they "might as well go ahead and have the meeting with them." Probst made no mention of a Board election during his conversation with West- brook, but he did indicate that if they did not "go ahead and arrange for a meeting," they would "get beaten in the end." Probst told Westbrook to mail the letter to him. Approximately a week after the foregoing telephone conversation, which probably occurred about Monday, July 19, Adams and Westbrook went to Detroit where they met with Probst,25 decided to recognize the International, and discussed some tentative contract provisions. A meeting with Schwartzmiller was also arranged for August 10 in Lancaster, Ohio. Before proceeding to the meeting of August 10, it should be noted that Westbrook's testimony clearly establishes that at no time after his receipt of Schwartzmiller's letter did Westbrook ask Schwartzmiller if he had any cards or raise any question about Schwartzmiller's claim of majority repre- sentation. Westbrook rather, "on the strength of what" Probst had told him, accepted' the statement as to majority representation in Schwartzmiller's letter. On Tuesday, August 10, Westbrook, accompanied by Probst and Gallucci, met with Schwartzmiller in Lancaster. Adams was not present at this meeting, which was devoted to negotiating an agreement. By the end of this meeting, the terms of the basic agreement had been reached, as this credited excerpt from Westbrook's testimony unmistakably shows: We had our proposal, Mr. Schwartzmiller had his. We argued back and forth, cutting out, putting in, until we arrived at an original contract . . . to be presented to the employees. It is evident from all of Westbrook's testimony and the documentary evidence that when the meeting ended, wages and seniority provisions were still to be agreed upon, and that the basic agreement was to be typed up for final approval, subject to minor corrections, and signature. I am persuaded that Westbrook's understand- ing was that the agreement was eventually to be approved by the employees. "It was right after the 10th, Mr. Probst typed up and mailed to" Westbrook the 11-page basic agreement. After Westbrook "received the contract," which was evidently "around the 12th or 13th," 26 Vice President Adams affixed his signature to the basic agreement. After painstaking appraisal of Westbrook's testimony, I am convinced that Adams signed the 11-page basic agreement, containing the union- security and checkoff provisions, sometime before Schwartzmiller signed it. As Westbrook explained the matter, he understood that Adams' signature meant that "the contract was agreeable to the company" and that Adams -was "only showing our faith in it by signing it first." Westbrook's testimony further indicates that, for similar reasons, Adams also was the first to sign the wage supplement. While the matter is not without elements of doubt, I believe that Westbrook's testimony as a whole indicates that Schwartzmiller probably signed both the basic agreement and the wage supplement at the same meeting when the 14 employees who formed the Temporary Bargaining Committee signed the wage supplement, and further that when this signing took place Westbrook was given the impression that the employees had registered their approval of the provisions thereupon being signed 27 But in any event, I am convinced that the preponderance of the credible evidence in the record as a whole establishes that, contrary to any such impression which Westbrook may have had, the Temporary Bargaining Committee actually signed the wage supplement about midafternoon on Tuesday, August 17, without any prior vote of approval of the contract provisions by any mass meeting of Reading plant employees. Further, I am similarly convinced that the two meetings of employees on their respective shifts which did take place, when contract pro- visions were read and discussed and when committeemen were elected for the respective shifts, did not take place until later on August 17, after all signatures as Probst's associate, Gallucci, was at that time in Lancaster. 28 The above-quoted phrase appears twice in Westbrook's testimony upon response to questions by counsel for the Respondent Company. 27 Admittedly Westbrook had no firsthand knowledge of any kind of ratification meeting of employees. While his testimony for the most part indicates that he was told that the employees approved the agreement at a "mass meeting," there are certain parts of West- brook's testimony which suggest that he may rather have been told by Schwartzmiller that the employees on the Temporary Bargaining Committee had approved the provisions before signing. BRYAN MANUFACTURING COMPANY 535 had been affixed to both the basic agreement and to the wage supplement.28 And finally, l am convinced and find, from my analysis of the extensive evidence as to these two meetings, that while Schwartzmiller read to the employees most, if not all, of the essential provisions of the agreement, there was no vote taken at either meeting to approve any of said provisions:29 Before turning to the activities of Schwartzmiller at Reading on August 16 and 17, which I am convinced occurred after Schwartzmiller knew that Adams had signed the basic agreement, it would be well to note that the supplement on seniority, Exhibit B, was eventually signed on September 2, 1954, after the numerous pro- visions therein had been agreed to during several bargaining sessions. The clear and convincing testimony of Iola Joice, who signed this seniority supplement, shows that these negotiations started on August 18, the day after Joice was elected a com- mitteewoman for the second shift during the meeting of the second-shift employees on the night of August 17, and that Joice signed Exhibit B on September 2 because after several meetings "Management and the committee . . . had agreed on it." It should be noted that after her election as committeewoman on the night of August 17, Schwartzmiller told Joice that she "was supposed to go in there the next day" to the negotiations, and that the temporary committee "wasn't to go in there no more." 30 From all of the circumstances, I am convinced that the seniority provisions were the only, ones in the -1954 agreement, as supplemented, which the elected. committee- men played any part in negotiating. C. The advent of the IAM among the employees of the Reading plant and developments thereafter In contrast to the UAW, which the record shows had been active among the Read- ing plant employees for a month or more prior to August 16, 1954,31 there is no evidence in the record showing any activity on the part of the IAM prior to Schwartz- 21 The first-shift meeting took place during the latter part of the afternoon , after the first shift was over. The second-shift meeting began about 11 p. m., some 2 hours before that shift would normally have concluded , but the employees punched out and were not paid for the time spent It the meeting . It appears that most of the employees on the respective shifts attended these two meetings , which were held in the American Legion Hall in Reading. I am convinced from all of the evidence that these two meetings each had similar purposes, to familiarize the employees with the -agreement which had been signed, and to elect committeemen from the respective shifts. 2B The testimony as to the second -shift meeting Is particularly extensive and is also con- fused . In several, respects, most of them minor. In any event, some of the uncertain de- tails of this night meeting are not material to a determination of the issues herein. Fur- ther, the evidence as a whole leaves no doubt that Schwartzmiller , despite some limitations as to the closing time of the ball , read at least all of the essential provisions of the agree- ment to second-shift employees , as he undoubtedly had done at the earlier meeting of first- shift employees . Further, the evidence as to the second -shift meeting leaves no doubt that the vote taken at that meeting was the election of committeemen , and that no vote was taken to approve the agreement . As to the first-shift meeting, while the testimony uni- formly shows the election of cominitteeinen , there is also testimony by Sperbeck that the meeting unanimously approved the agreement by "voice vote ," and that there were "no opposers." While it seems evident that no one spoke out in disagreement, as Schwartz- miller read the provisions of the agreement during the first-shift meeting, I am convinced, by consistent and credibly given testimony of Dorothy Sarles and Frances Peters as to whether there was any kind of vote taken on the agreement , that no vote of any kind was in fact taken at the first-shift meeting pertaining to approval of provisions of the agree- ment. Particularly convincing in this respect was Peters ' explanation , on cross-examina- tion by counsel for the Respondent Unions , that she was positive that no vote had been taken to approve the agreement because of the fact that after she had thought it over she had wondered why there had not been such a vote. 30 Neither Joice nor Clayton Mundy , the other committeeman for the second shift elected at the late meeting on August 17, and who also signed the seniority supplement , had been members of the temporary committee which had signed the wage supplement earlier on August 17. 31 By the time the IAM's agreement had become known, three meetings of those interested in the UAW had been held at the Reading home of ,Mary Carter , then one of the employees, and a number of employees had signed cards bearing the caption "AUTHORIZATION TO UAW-CIO." These cards , of which between 30 and 40 eventually were signed , according to Salomon, authorized the UAW to serve as collective -bargaining representative and were 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miller's appearance at the Reading plant on Monday, August 16. To the contrary, witness after witness testified convincingly and unequivocally as to the absence, so far as she had any knowledge, of any kind of activity on behalf of the IAM prior to either August 16 or 17, depending on which of those 2 days it was that she first learned of the IAM's interest in the plant. To this negative type of testimony, which is so vigorously attacked by the Respondents, we now turn. There were 13 women witnesses called by the General Counsel who gave credible testimony of the preceding type, which was not shaken on cross-examination. These witnesses were Mary E. Watkins, Ruth Moses, Mildred Southwell, Beverly Hadley, Edith Wolford, Myrtle Long, Margaret Hatfield, Lillie Shaffer, Dorothy Sarles, Frances Peters, Joyce Shaffer, Iola Joice, and Maryalice Mead.32 In essence, this testimony, which varied from witness to witness, was to the general effect that, prior to learning about the IAM on either August 16 or 17, these witnesses had never been approached by any individual on behalf of the IAM; had never signed any kind of application or authorization pertaining to the JAM; had had no knowledge of dis- cussions among employees at the plant with respect to the JAM; and had not seen any kind of JAM posters or circulars around the plant. In addition to the above-named 13 employees, whose composite testimony presents the picture of absence of IAM activity set out in the preceding paragraph, the parties stipulated that if 13 other named employees, who were under subpena as witnesses for the General Counsel,33 were called to testify, they would testify in substantially the same manner as Joyce Shaffer, one of the 13 witnesses named in the preceding paragraph. In view of this stipulation as to what 13 additional employees would have testified, the gist of the material testimony of Joyce Shaffer is herewith set out. According to Shaffer, "the first time" she knew that a union had come into the plant was when Donna Munger told her about it the day "the girls came out of the office," which date the evidence as a whole establishes as Monday, August 16, 1954.34 It was Shaffer's unimpeached and credited testimony that she had never been approached by any representative of the JAM or any employee on behalf of the JAM prior there- to; that she had not seen any posters, literature, or circulars of the IAM prior there- to; and that she had joined the IAM "a month or two after" it had come in, because she understood that she "had to or else lose [her] job." 35 We turn now to a consideration of the 14-member Temporary Bargaining Com- mittee. Fragmentary and confused as it is in some respects, the composite picture which I get from all of the evidence as to such organizational activities as the JAM conducted among employees at the Reading plant, indicates that it was on Monday, August 16, that this temporary committee probably was selected. In any event, there is direct testimony about a meeting between Schwartzmiller and five women on this temporary committee who worked on the second shift. Further, there is some information as to 5 of the 9 remaining members of this committee, who ap- parently were from the first shift, upon which it appears that about two-thirds of to be used, according to the legend across the bottom, "in support of the demand of UAW- CIO for recognition or for an NLRB election." It is noteworthy that no reference whatso- ever to Local 701 appears on the sample card which is in evidence. It should also be noted that there was a meeting held in the VFW hall in Reading, but the date of the meeting is uncertain. According to Carter, the attendance at the meetings at her home, of which there were 3 prior to, and 1 after, they had learned of the IAM agreement, ran from around 7 or 8 to "as high as twenty at one time." sa In addition, Mary Carter, who had been laid off several days before August 16, testi- fied as to the absence of TAM activity during the period of her employment. 3 The names of said 13 employees are as follows : James Hayes, LaJeanne Hinkle, Pat Carpenter, Dorothy Slocum, Ruth Young, Danna Newbauer, Ester May, Caroline Pfeifle, Evelyn Bradshaw, Barbara Rodgers, Violet Kelley, Paul Parker, and Darlene Sharp. S4 As appears more fully below, Donna Munger, was 1 of the 5 girls from the second shift who were called into the office shortly after the beginning of the second shift on August 1.6 for a meeting with Schwartziniller. A number of the other earlier-named 13 women witnesses also testified that they first learned of the TAM from 1 or more of the girls called into the office on August 16. 31 It should be noted that many of the above-named 13 women employees who testified gave testimony similar to that of Joyce Shaffer about having joined the IAM because they understood that they had to do so. Some of those witnesses pointed out that they had been told at meetings by Schwartzmiller about the union-shop provision of the agree- ment. BRYAN MANUFACTURING COMPANY 537 the employees worked, the remaining employees being on the second shift 36 Be- cause the evidence as to them is clear in the record, we consider first the five second- shift women who signed the wage supplement , even though they may have been selected later than the first-shift employees who were members of the Temporary Bargaining Committee. Not long after 5 o'clock on the afternoon of August 16, 1954, about an hour after the beginning of the second shift , five "girls" were called from the plant into Westbrook's office. When these five employees had assembled in an aisle outside the office, Eugene McFann, who was then and had been , since November 1953, the plant superintendent of the Reading plant, and who has been its plant manager since July 1955, told them, "Don't be afraid girls, you're not going to get bawled out." These 5 second-shift employees, who thereupon went into Westbrook's office without punching out their timecards, were Donna Munger, Velma Rooks, Jean Edinger, Lillie Shaffer, and Myrtle Long, the last 2 of whom testified as to what occurred on that occasion.37 It is upon my analysis of the testimony of Lillie Shaffer and Myrtle Long,38 whose names also appear hereinabove among those of the 13 women witnesses who testified as to their lack of previous knowledge of the IAM, that I base the findings which follow as to what took place when Schwartz- miller met, for perhaps 45 minutes to an hour, with these 5 women in Westbrook's office. When the above-named five "girls" came into his office, Westbrook introduced Schwartzmiller as being from the IAM, and left the employees alone in the office with Schwartzmiller.39 Schwartzmiller thereupon explained to the employees that the IAM had an agreement with the Respondent Company which would be to the advantage of the employees . Schwartzmiller mentioned their "getting a raise"; said that there were parts of the agreement which "could be changed or altered in the future"; and spent most of the time reading parts of the contract.40 Before the meeting ended, Shaffer told the five employees that as long as they were in there, they "might just as well be among the first to sign the cards." Thereupon, "membership cards were passed out by Schwartzmiller" to the five employees and, as Long credibly testified, "We all signed them, all five of us girls." 41 11 Employee witnesses estimated the number of employees on the first shift at about 100 and on the second shift at about 50. Figures from the records of the Respondent Com- pany show that on August 10, 1954, there were 148 employees altogether in the bargaining unit covered by the agreement. There were two layoffs thereafter during August 1054. The first layoff was on August 11 and involved approximately 20 employees. The second layoff took place on August 17, when 21 employees were laid off. zr Munger, Rooks, and Edinger, whose names, along with those of Shaffer and Long, appear on the wage supplement dated August 17, were not called as witnesses at any time during the hearing, and McFann did not testify as to this incident. Further, it is my considered judgment that testimony which Westbrook gave, about a group of 10 or 12 employees being called into his office from a list which Schwartzmiller handed to 111cFann, pertains to calling in the Temporary Bargaining Committee to sign the wage supplement on August 17. ' McFann had personally gone to Long to tell her to go to the office. 39 Despite some uncertainty in the testimony, I am convinced that Westbrook left after merely introducing Schwartzmiller. :o Whether she got the date, August 10, from Schwartzmiller's reading the contract, or from Schwartnmiller's discussion of it, I have no doubt from Long's testimony that she left the meeting with that date associated in her mind with the agreement, Further, it appears from Long's testimony that Schwartzmiller, sometime before the meeting ended, mentioned to the employees that he wanted them later to sign some papers connected with the agreement. 41 The quotations in the above paragraph are all taken from credited testimony of Long, which was consistent on the matters above found with similar testimony of Shaffer, insofar as Shaffer recalled what occurred at the August 16 meeting in Westbrook's office. For in- stance, Lillie Shaffer credibly testified, with respect to their signing IAM cards in the office on August 16, that Schwartzmiller had said that "somebody had to be first, and it might as well be us; We had to join anyway." As to whether or not there was any conversa- tion between Schwartzmiller and "any of the other five present with respect to their signing the cards ," Long testified , "I can't remember any of us saying anything when we took the cards and signed them." As to why Long, who was on that occasion for the first time meeting Schwartzmiller and learning about the IAM, signed an application is of more than passing interest. Long explained why she signed in this forthrightly given answer, which must be evaluated in the light of the provisions of the basic agreement which 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is obvious from various bits of testimony which need not be detailed that when the five women returned to the plant, word spread among their fellow employees about their meeting with Schwartzmiller. In fact, not long afterwards, "quite a few girls gathered around" Plant Superintendent McFann at a point "between the time clock and the office door" and asked him how the five who had gone into the office had been selected. McFann stated that the girls had been "chosen at ran- dom," explaining that he had "gone through the cards and tried to get a girl from each department." 42 From the above findings and the record as a whole, it is evident and I find that the 5 second-shift employees on the 14-member Temporary Bargaining Committee were selected at random to meet Schwartzmiller in Westbrook's office the day before they signed the wage supplement; 43 that the 5 women were sent to Westbrook's office late on the afternoon of August 16 when at least 2 of them heard for the first time about the IAM's interest in the plant; and that all 5 of the women on that occasion signed JAM applications, after Schwartzmiller had explained the terms of the agree- ment which the Respondent Company had already signed and which required mem- bership in the JAM, and after Schwartzmiller had also told them that they might as well be among the first to sign JAM application cards. We turn now to such frag- mentary information as the record provides about the other nine employees who signed the wage supplement as members of the Temporary Bargaining Committee. As to Ruth Young, whose signature as a member of the Temporary Bargaining Committee is the third to appear on the wage supplement, and Paul. Parker, whose signature is the last of the 14 employees to appear thereon, we know from the above- discussed stipulation that if they had been called as witnesses their testimony would have been substantially the same as that of Joyce Shaffer. Hence we know that it was on August 16 that both Young and Parker first learned that the JAM had come into the plant.44 As to Florence Napier, whose signature is the second one among the 14 on the Temporary Bargaining Committee, it is evident from credited and uncontradicted testimony of Mildred Southwell, an employee on the first shift, that on August 17 Napier told her (Southwell) that the first time she (Napier) had heard of the JAM was when she (Napier) had been called into the office the day before. In explana- tion of her testimony that on August 17, on their way to work, Napier had told her that "we had a union in the shop," Southwell testified: I said, "Well, what union is that?" She said it was the International Association of Machinists and I said, "I never heard of them before," and she told me that she had been called into the office the day before and it was ,the first time she had heard of it. As to Laura Puckett, whose signature is the fifth of the committee on the wage sup- plement, the record merely shows that she subsequently was elected president at the mass meeting of employees from both shifts held the latter part of August. Imojine Sperbeck, the 10th member of the committee to sign, testified that she was elected president of the Local Lodge "the first part of January, 1955." She was still president of the Local Lodge at the time she was called as a witness by the General Counsel under rule 43 (b).45 Sperbeck, a first-shift employee, was elected a com- mitteewoman from her shift at the meeting of first-shift employees held on the after- Adams had already signed, and which Schwartzmiller had already explained at the meet- ing : Well, I signed because I had no other choice. They said the agreement had been signed on the tenth and as long as it was in and I intended to work there, I might just as well sign too. "The above findings as to McFann's explanation are made upon essentially consistent, uncontradicted, and credited testimony of Long, from which the quoted material has been taken. Long also testified convincingly that before she had been sent into the office, she had seen McFann at the time clock "going up and down the time cards." 43 The extent to which Schwartzmiller may have participated with McFann in this random selection is not revealed by the record and is less significant, in my; opinion, than such random selection of employees, who had not even evidenced any prior interest in the IAM, so far as the record shows. 44 Parker was later elected a committeeman from the first shift at the meeting of first- shift employees, which was held shortly after the wage supplement was signed, and he thereafter signed Exhibit B also. 45 As to just when the Local Lodge itself was actually founded, the record is ambiguous, but it would appear that the Local Lodge had come into the picture at the Reading plant prior to Sperbeck's being elected president thereof in January 1955, even if Puckett had been elected president of the members of the IAM at the Reading plant before the Local BRYAN MANUFACTURING COMPANY 539 noon of August 17, shortly after she and the other members of the committee had signed the wage supplement. According to Sperbeck's own testimony, she became a member of the TAM "about the last part of August," and it was after "there was a signed contract in the plant" that Sperbeck "signed a membership application." Sper- beck also testified that she was one of a group called into the office on August 16; that she did not see anyone sign a membership card on that occasion; that if anyone had signed, she "would have seen it"; and that so far as she knew "there were no mem- bership cards signed." In view of Sperbeck's testimony, the group with which Sperbeck went into the office on August 16 must have been a first-shift group which probably included some, if not all, of the members of the Temporary Bargaining Committee, other than the five second-shift members. Hence it seems possible that the five second-shift women who were called into the office on August 16 may have been the first employees to sign TAM membership applications and may also have been the only members of the committee who had signed such applications at the time the Temporary Bargaining Committee signed the wage supplement on August 17. But be that as it may, the foregoing facts concerning the Temporary Bargaining Committee are significant in determining whether the TAM was the duly designated bargaining agent. One could go into greater detail as to when and how various employees first learned of the TAM, or first saw Schwartzmiller, or first signed TAM cards; as to what prob- ably did or did not take place at various meetings, particularly the second-shift meeting on the night of August 17; and as to various activities and conversations of Schwartzmiller on August 16 and 17.46 But in my opinion, with certain excep- tions to which we next turn, most of such details, all of which have been duly weighed, but which in my judgment fall short of establishing that the Respondent Unions were dominated or sponsored by the Respondent Company, would serve only to piece out various aspects of the general picture which have already been suffi- ciently indicated. Hence, we leave undiscussed numerous details, about the sig- nificance of which there can be honest differences of opinion. We come now to one remaining major type of evidence bearing upon lack of majority. This pertains to several occasions during which, as revealed by uncontra- dicted, reasonably consistent, and credited testimony of various witnesses named subsequently herein, Schwartzmiller was confronted with essentially the question of how the TAM had got into the Reading plant. The first of these occasions occurred in the plant on the evening of August 16 when Schwartzmiller talked individually to one of the employees interested in the UAW, Ruth Moses. Schwartzmiller approached Moses at her machine and intro- duced himself as a representative of the TAM who was there to help set up a union that they could "work under." Schwartzmiller said that he understood that Moses was not exactly pleased. Moses, who had just shortly before learned for the first time of the TAM after the five second-shift girls had returned from their meeting with Schwartzmiller in Westbrook's office, said that "it was merely the way they had come in" which she questioned. During their conversation, Schwartzmiller told Moses that the TAM "had a contract," and Moses asked Schwartzmiller "how they could have a contract without the girls' permission." While Moses apparently felt that she "never did get a straight answer" to her question, I have no doubt, from her essentially consistent and credibly given testimony on direct and cross-examination, that the substance of the explanation which Schwartzmiller made was that the TAM had been organizing or had just finished organizing "another branch of the com- pany"; 47 that "the company had agreed to let" the TAM come into the Reading plant; and that the TAM Lodge was actually installed there. In any event, despite the failure of the Local Lodge to appear as signing any of the parts of the 1954 agreement, there is no contention that the Local Lodge was not in the picture within 6 months prior to the filing of the charge against the Respondent Unions. 49 For instance, first-shift employee Sarles, whose testimony has previously been cited, testified credibly that during the lunch break on the first shift at about 2 : 30 p. m. on August 17, Schwartzmiller came into "the lunch part of the factory" where the employees customarily assembled at that time, and started a conversation during which "some of the employees asked questions." Among other things, Schwartzmiller, according to Sarles, told the employees they "had received a nickel increase" which would be retroactive to August 10 and also said , "You girls now have a union and have had it as of August 10th." 47 While Moses evidently remembered Schwartzmiller as saying "another branch of the company," it seems possible, from testimony subsequently quoted herein, that Schwartz- miller, whether he made himself clear to Moses or not, may actually have been referring rather to another company which was closely interrelated in its economic activity with the Respondent Company. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD came immediately, rather than try to organize in the usual way, because they figured they would come while the company was in the mood. As to this occasion, as is true of each of the three other occasions involving Schwartz- miller which are substantially discussed herein, it is particularly significant that there is no indication that Schwartzmiller made any claim whatsoever as to having secured adherence to the IAM from the employees covered by its agreement. The second of these occasions took place outside the American Legion Hall in Reading. It involved Schwartzmiller and three officers and a steward of Local 701, which has its office in Hillsdale. The three officers, Vice President Ray Zider, Re- cording Secretary William Nichols, and Financial Secretary William Burger, had been sent from Hillsdale to Reading by President Salomon and Robert McClain, an international organizer for the UAW, to find out what was going on at the Reading plant. The foregoing three officers and Schwartzmiller were joined during the latter part of their conversation by Steward Kenneth Carter, whose wife was active in the UAW organizing campaign, and at whose Reading home the above- mentioned UAW meetings were being held. I am satisfied, from my analysis of the testimony of the three witnesses who testified as to this incident, Nichols, Burger, and Carter, that this discussion followed substantially the lines set out below, lasted no more than half an hour, and took place the latter part of the afternoon of August 17, 1954. 48 The three officers of Local 701 introduced themselves to Schwartzmiller as he stood on the sidewalk, after coming out of the meeting hall. They asked Schwartz- miller what was going on and he told them that he had a contract with the Bryan Manufacturing Company and that they had just had a meeting. Schwartzmiller was then asked if he did not know that there was a "non-raiding agreement" between their organizations and Burger asked Schwartzmiller how he "got away with it." 49 Schwartzmiller replied, in effect, that it depended on who you knew and that if you can get away with it you just get away with it. Someone in the group accused Schwartzmiller of coming in the back door, or of making a back-door deal, and Schwartzmiller did not deny or confirm it. During the discussion, which obviously became heated, Schwartzmiller was asked if he knew that there was a correct way and an incorrect way of organizing a plant. Eventually the argument "sort of cooled down," and one of the group asked Schwartzmiller, who had an Ohio license on his car, where he was from. Schwartzmiller said that he was from Ohio and had just negotiated a contract for what Nichols testified he understood was "another part of this company" at Mansfield, Ohio.50 In any event, the incident terminated when the three officers of Local 701 returned to Hillsdale, after saying, "The two International unions will have to fight it out." The third occasion when Schwartzmiller was confronted with an inquiry as to how the IAM had got into the Reading plant occurred not many hours after the above discussion, during the meeting in the American Legion Hall of the second- shift employees on the night of August 17. During the course of that night meeting, second-shift employee Moses, whose discussion with Schwartzmiller the preceding evening at the plant has already been presented, queried Schwartzmiller publicly as to how the JAM had got into the plant and secured its contract. Just how Moses' question was worded, and just how fully Schwartzmiller actually did reply thereto, is left in doubt by the several varying versions of this incident given by a number of witnesses.51 But in my opinion, the weight of the evidence leaves no doubt that Schwartzmiller at least stated that he had been warned that an attempt would be made to break up the meeting, and that whatever other explanation,' if 43 While there is no testimony as to the exact date, the brief of the Respondent Unions places this incident on August 17, and I accept this as correct, in view of the general sequence of events, the probabilities, and the convincingly given testimony of Burger that the discussion took place "in the middle of August," after a meeting of employees at the American Legion Hall in Reading. It has been found above that such a meeting of employees did take place after the first shift on the afternoon of August 17. 49 It was apparently at about this point that Carter joined the group. 60 On cross-examination. Nichols testified that while he was not sure, he was "pretty near positive" that Schwartzmiller had said that he had been organizing another branch of this company in Mansfield, Ohio. Carter testified that Schwartzmiller said that he "had been organizing some plant in Ohio" but was not able to recall what the plant was. Whatever may have been the plant in Ohio to which Schwartzmiller made reference on at least three of the occasions discussed herein, it is significant that his explanation pertained to having been organizing some other plant, rather than to having organized the Reading plant. m Answers given during their direct examination by four of several witnesses for the General Counsel, summarized largely in the words of the witnesses, themselves, will serve to BRYAN MANUFACTURING COMPANY 541 any, Schwartzmiller may have made , it did not include any claim that the employees had designated the IAM to bargain for them.52 The last of the occasions involving Schwartzmiller and the question of how the IAM got into the plant occurred during the summer of 1955, almost a year after the foregoing incidents, and after a number of employees who were dissatisfied had held at least some of the meetings which are discussed in the subsequent section of this report which deals with the fronting issues. My subsequent findings as to this 1955 incident, which occurred about June or July during a meeting of the Executive committee of the Local Lodge, are based upon my careful appraisal of uncon- tradicted testimony of Everett Hubbell , who started working at the Reading plant on November 1, 1954, joined the Local Lodge about December 15, and was elected a committeeman of the Local Lodge in February 1955. Following his election as a committeeman, Hubbell became a member of the executive committee of the Local Lodge and attended its meetings , as well as the general membership meetings. Hubbell also was 1 of the 6 employees who signed the subsequently discussed agree- ment of August 30, 1955, for the Local Lodge. Hubbell admittedly also attended some of the meetings of dissatisfied employees which were conducted in the spring and summer of 1955, and this fact has been duly considered in weighing his, testimony. On the whole , I am convinced that Hubbell was an essentially truthful witness, although admittedly uncertain as to dates and possibly confused as to whether or not there had been more than one occasion upon which Schwartzmiller made re- marks similar to those which Hubbell attributed to him at a meeting of the executive committee, which is the only occasion upon which I am relying . Incidentally, from Hubbell's direct examination it would appear that Carl Cederquist, the represen- tative of the International who signed the agreement dated August 30, 1955, and who had by that time also become active in the affairs of the IAM at the Reading plant, may have gone "through the same procedure " in trying to "get across" the idea that the IAM "came in legal." However, I am not satisfied , from Hubbell's testimony as a whole, just what Cederquist may have said . In any event, whatever Cederquist may have said in the summer of 1955, the record does not show any participation on Cederquist's part on behalf of the IAM at the time it came into the plant in the summer of 1954. Hence, I am giving no weight to Hubbell's testimony regarding remarks attributed to Cederquist . Similarly, I am giving no weight to Hubbell's vague and general testimony that Schwartzmiller made similar remarks "several times," one of which was at a "regular union meeting " in the American Legion Hall in June or July 1955.53 illustrate the divergence in the testimony on this point . For instance , Maryalice Mead testified as follows : Mrs. Moses asked Mr. Schwartzmiller how he came about to be in there, and he said . "Come in through the company," and that everything was legal . We didn't have a thing to worry about; and he ruled her out of order and said he had understood there would be some people in the crowd that were going to try to split up this meeting, and he didn 't want to have any trouble. By contrast , Beverly Hadley testified that the conversation between Schwartzmiller and Moses was "very clear" in her mind and that all that Schwartzmiller had replied to Moses' question as to "who asked the IAM to represent us" was, "I was told there were going to be people here that would try to break up this meeting." On the other hand, Edith Wolford testified that her best memory of what Schwartzmiller had said , in answer to Moses ' question as to "how he was able to come and sign a contract without us knowing about it," was, "You don 't pass up a good opportunity when you see one or when you have one." Margaret Hatfield testified that her best memory of what Schwartzmiller re- plied to Moses' question as to " who asked him to represent us" was that Schwartzmiller had "heard someone was going to be sent there to interrupt the meeting." 52 It is difficult, incidentally, to tell from Moses' testimony just how much of Schwartz- miller 's explanation the evening before to her individually Moses believed Schwartzmiller reiterated publicly at the August 17 meeting. But the testimony of several other witnesses, some of which has been quoted in the immediately preceding footnote , some of Moses' own testimony, and the inherent probabilities , lead me to believe that Schwartzmiller's ex- planation on August 17 was brief , and essentially avoided Moses' question by referring to his having been warned about someone causing trouble or attempting to break up the meeting. In any event , all versions of this exchange between Moses and Schwartzmiller at the second -shift meeting are devoid of any indication that Schwartzmiller made any claim of majority. G3 However, it should be noted that if Schwartzmiller did make some such explanation to a general membership meeting in the American Legion Hall in the summer of 1955, as I 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is evident from Hubbell's testimony, and the record as a whole, that there was still discussion among employees during the spring and summer of 1955 as to whether the TAM had come into the plant in the right way. Further, I have no doubt, from credited testimony of Hubbell, that at one meeting, at least, of the executive board during this period Schwartzmiller devoted considerable time to explaining to the members of the executive board 54 how the TAM had come into the plant legally and in a "rightful way." Schwartzmiller 's explanation to the execu- tive committee, about June or July 1955, was essentially that the TAM had been on a strike at Essex Wire, a company in Lancaster, Ohio; that they had had that company, which was "connected " with the Respondent Company, "over a barrel"; and that they had got the contract at the Reading plant because "they told them that they would have to let them come in up here." While it is not clear from Hubbell's testimony whether Schwartzmiller explained just who had been told that the price of settling a "strike or something " at Essex Wire had been an LAM con- tract for the Respondent Company's Reading plant , I am satisfied from Hubbell's testimony that such an explanation , involving Essex Wire having been "over a barrel," was the core of what Schwartzmiller told the executive committee of the Local Lodge, on at least one occasion during June or July 1955 , as to how the TAM had got its Reading plant contract 55 Before turning to what in my opinion is a pivotal question in this case , namely whether or not the General Counsel made a prima facie showing that the Respond- ent Unions did not represent the employees covered therein when the 1954 agree- ment was entered into, consideration should be given to flatly contradictory testi- mony as to what was said during a conversation on the evening of August 17, 1954, between employee Ruth Moses and Eugene McFann , who was then the plant super- intendent . There is no doubt that before Moses, who was one of the 21 employees involved in the August 17 layoff , left the plant that night to attend the late meeting of second-shift employees , she, like several other employees also being laid off on August 17 , discussed her layoff with McFann. The flat conflict in the testimony of Moses and McFann comes on the question of whether anything was said on that occasion pertaining to any union. Moses testified on direct examination that , in addition to discussing her layoff with McFann , she had questioned McFann "in some way" which she could not re- member exactly "as to where the union came from or how ," and that McFann had told her that "the company had allowed them to come in, and what a benefit it would be for the girls." The foregoing version of Moses on direct examination was not shaken on cross-examination by counsel for the Respondent Company, and Moses insisted that it was "not a fact" that she had not "even mentioned the Union to Mr. McFann that night." On the other hand, when called as a witness by the Respondent Company , McFann testified that his conversation of August 17 with Moses, like several similar conversations with other employees being laid off that day, pertained to "how they would be called back , if they would be called back or rehired." Further, McFann denied unequivocally that "any part of that conver- sation" which he had had with Moses "pertained in any way to unions or union activities ." The General Counsel did not cross-examine McFann on the foregoing testimony. Neither McFann nor Moses , both of whom were quite obviously interested wit- nesses, impressed me as the type of individual who would deliberately fabricate testimony. On the other hand, both McFann and Moses were, at times , during their fairly extensive examinations which covered a number of different matters, confused, inconsistent, and on the defensive. But this is not too surprising, especial- ly in view of the tensions involved in this case , and the vigorous nature of some of the examination during this closely litigated hearing. find hereinbelow that he made to the executive committee , it might explain some of the confusion of witnesses ( indicated above ) as to what Schwartzmiller said at the meeting in the same hall on the night of August 17, 1954. 5' Hubbell named a substantial number of the members who were also present, among those named being Napier and Sperbeck, who have already been identified herein. ec While the record warrants no finding as to what actual relationship, if any, may have existed between Essex Wire and the Respondent Company during July and August 1954, it has been noted above that there were two layoffs during that period at the Reading plant, one on August 11 and the other August 17. Furthermore, it seems reasonable that Schwartzmiller would have given a more detailed and forthright explanation to the execu- tive committee of the Local Lodge after the problem had been complicating matters in the minds of at least some of the employees for almost a year, than he had given to Ruth Moses or to the officers of Local 701 during August 1954. BRYAN MANUFACTURING COMPANY 543 On the whole, Moses' testimony about her conversation with McFann on August 17 was less convincingly detailed than was some of her other testimony, such as that pertaining to her conversation with Schwartzmiller the preceding evening, August 16, 1954. By contrast, McFann's denial that the conversation here under consideration pertained in any way to unions was more convincing than certain parts of his testimony concerning the negotiation of the 1955 agreement. Further, even if McFann, who, as has been found above, had the day before at least assisted in picking a representative group of second-shift "girls" to meet with Schwartzmiller in Westbrook's office,56 actually did say something to Moses on August 17 to the effect that "the company had allowed [the IAM] to come in," such a remark be- comes relatively less consequential, in view of Westbrook's above-related explana- tion of how the Respondent Company's attorney had convinced him that the JAM's claim of majority representation should not be challenged. In any event, weighing all credibility factors, the General Counsel has not carried his burden of establish- ing that this conversation between McFann and Moses included anything pertain- ing to unions 57 D. Concluding findings as to lack of majority and assistance with respect to the 1954 agreement So much of what has been said is pertinent to the concluding findings in this sec- tion of the report that no attempt will be made to summarize. We will turn rather to our first major problem: whether or not the General Counsel's evidence, regard- less of other factors, establishes a prima facie case as to the JAM's lack of majority with respect to the 1954 agreement. The briefs of the Respondent Unions and of the Respondent Company strongly contend that the General Counsel failed to establish a prima facie case as to lack of majority. Both briefs stress the failure of the General Counsel, having chosen not to enforce his subpoenas duces tecum for the records of the Respondent Unions,58 to call a majority of the employees in the unit as witnesses to show lack of adherence to the JAM. The position of the Respondent Company in its brief is essentially that the testimony of "a negligible minority of employees out of a total of approximately 156, is sufficient only to prove the desires of that negligible mi- nority," and that under all of the circumstances it was "absolutely incumbent upon the General Counsel to prove that a majority of the employees favored some other Union, or no Union at all." The gist of the position taken in their brief by the Re- spondent Unions is that the General Counsel did not meet his burden of proving "the essential element" of the complaint-the "non-majority status" of the IAM- because the General Counsel "neglected and failed to produce the majority of the employees employed" at the Reading plant in August 1954, and that to meet this burden, the General Counsel, who offered no reason for his failure to do so, "would have had to produce 79 of the available employees." It should be noted that the above similar positions of the Respondents are premised on the figure of 156 employees. However, the figure actually material to the foregoing contentions is 148, the number of employees in the unit on August 10, before the layoffs of August 11 and 17, respectively, had reduced it by some 20 and 21 employees. Obviously it is the majority of the employees in the unit which is relevant, rather than the number of employees on the payroll as a whole. But since the record shows no reason why, in considering majority questions at any time from August 10 to 17, laid-off employees otherwise in the unit should be excluded, the approximately 41 laid-off employees should be considered in discussing ma- jority.59 Finally, it is my opinion that, in any event, the crucial date with respect to majority is August 10, 1954, because on that date the Respondent Company, hav- ing recognized the JAM and bargained with it, agreed to the provisions of the basic contract which gave the JAM its union-security and checkoff benefits. Within a few days thereafter, probably on. August 12 or 13, the basic agreement was signed by Vice President Adams. Thereafter, during his organizational activities at the plant on August 16 and 17, and in the meetings conducted on August 17 in the 6e The Respondent Company did not question McFann as to that matter when it called him as a witness. 61 This is not to say, however, that I subscribe generally to the position taken in the brief of the Respondent Company on the credibility of Moses as a witness. se The position of the Respondent Company as to the failure of the General Counsel to enforce said subpenas has been noted in an earlier section of this report. 69 The record indicates that at least some second-shift employees laid off on August 17 attended the night meeting of August 17 and participated therein. 544 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD American Legion Hall, as more fully detailed in facts above found, Schwartzmiller made it known to the employees that the IAM had a signed agreement which in- cluded union-security and checkoff provisions . Certainly any majority adherence which the TAM might have secured after the Respondent Company had agreed to the union-security and checkoff provisions in the basic contract cannot be considered to be an unassisted majority. Furthermore, since the facts above found show that there was no ratification vote concerning the agreement taken at either of the meet- ings of the employees on their respective shifts on August 17, there is no factual basis for implying acceptance of the TAM by a majority of the employees in the unit, by virtue of any ratification of the agreement by the employees, either before or after Schwartzmiller and the Temporary Bargaining Committee signed it.60 We thus come more specifically to a modified form of our original question about the General Counsel's prima facie case as to lack of majority. Restated in terms of the case at bar , this question becomes essentially whether or not the facts established by the credited evidence adduced by the General Counsel, as sum- marized in major part in the two preceding sections of this report , warrant the in- ference that less than a majority of the employees in the unit had indicated their adherence to the TAM by August 10. In my judgment, when all of the factors in the General Counsel's affirmative case are considered in the light of usual labor re- lations experience and procedures , the reasonable answer to the foregoing question is an affirmative one. I realize that my answer, involving elements of judgment upon a pattern of facts, is one with which others may not agree. However, my conclusion has been reached after more detailed and painstaking consideration than was possible prior to my denying, at the close of the General Counsel's case with- out prejudice to their renewal , the motions of the Respondents for dismissal of the complaints for lack of a prima facie case. It should be noted that the mere fact that some 26 employees , 13 who testified and 13 whose testimony was stipulated , did not indicate any willingness to affiliate with the TAM until on or after August 16, does not establish what the remainder of the 148 employees may have done about designating the TAM by or before August 10. However, no such paucity of significance can be said to attach itself to the complete lack of knowledge of any kind of TAM organizational activities on the part of these 26 employees who, while definitely a minority, constituted over one- sixth of the employees in the unit who shared the small community environment within which the usual type of organizational campaign would have taken place. But while it seems unlikely that the IAM would have been able to obtain 75 adherents among employees in the Reading plant unit without any of those 26. employees ever having so much as heard of any TAM activities, such a situation is not inconceivable.61 But in any event , this aspect of the case-lack of knowl- edge-to which considerable attention has been given in the briefs , is only one aspect of a pattern which I discern in the evidence as establishing the prima facie case. More significant than the foregoing, in my opinion, is what the record shows about the composition of the Temporary Bargaining Committee, whose members signed the wage supplement on August 17. Without recapitulating details already found above, let me say that it is very difficult to believe that if the TAM had actually previously secured a majority following in the plant by August 10, it would have included on a committee signing a contract on August 17, so many individuals who had not heard of the JAM until August 16. Further, it strains credulity to believe that, if the TAM had had a majority on August 10, the 5 em- ployees from the second shift who signed the wage supplement would have been selected, at random, from among nonmembers of the TAM on the afternoon of August 16, to meet with Schwartzmiller in Westbrook's office, at which time those 5 signed application cards. Also contributing significantly, in my considered judgment, to the General Coun- sel's prima facie case are the various above-discussed occasions upon which Schwartzmiller, the agent of the Respondent Unions best in a position to know 60 Compare Robbie Shoe Corp., 1.13 NLRB 314, wherein the Board found it unnecessary to pass upon the reasoning of the Trial Examiner that "oral designations . . . may in no event support the execution of a union security " contract. a Tn making this observation, I am mindful of the fact that a number of the 26 employees in question were shown to have been partisans of the UAW, from whom it is conceivable the IAM might have deliberately tried to withhold any knowledge of com- petitive activities. Further, it should be noted that in Hibbard Dowel Co., 113 NLRB 28, cited by the General Counsel, the number of employees who gave this "never heard of" type of testimony was about half of the total number in the unit in that case. BRYAN MANUFACTURING COMPANY 545 the pertinent facts, failed to make any claim of having secured majority adher- ence in the unit, when confronted with the problem of how the IAM had been. able to secure its contractual status. In fact, these explanations of Schwartzmiller, taken as a whole, are tantamount to an admission by this central figure, in the IAM's dealings with the Respondent Company and its employees, that the IAM's contractual position had been secured through means unrelated to any status as a majority representative. So much for my major reasons for holding that the evidence adduced by the General Counsel during his case-in-chief, without regard to any inferences what- soever pertaining to any outstanding subpenas, established a prima facie case. We turn now to the problem of what conclusions as to majority and assistance are warranted upon the weight of the evidence in the record as a whole and the reasonable inferences to be drawn therefrom. Upon my denial, at the .close of the General Counsel's case, of the motions by the Respondents for dismissal for lack of a prima facie case, the Respondents had the burden of proceeding with evidence under what the Board recently pointed to in its Cadillac Marine deci- sion 62 as "the well settled principle that a party has the burden of going forward with the evidence, after a prima facie case has been established against it." The Respondent Company, upon the conclusion of the General Counsel's case, did call one witness, McFann, whose denial of testimony of Moses has been considered above; and also sought to secure the testimony of Schwartzmiller, but later aban- doned its unsuccessful attempts to serve him with a subpena. By contrast, the Respondent Unions did not go forward with evidence pertaining to the prima facie case as to the alleged unfair labor practices, but rather stated on the record that it was not "necessary to attempt to refute any of the statements in the record by the witnesses of the General Counsel." Thereafter the Respondent Unions ad- duced evidence pertaining only to the affirmative defense of fronting. It is to the significance of the clear failure of the Respondent Unions to meet in any way their burden of proceeding with evidence, pertaining to the prima facie case which had been established against them, that we now turn.63 Obviously when and how the International had organized among the Reading plant em- ployees, and had included them in its Local Lodge No. 1424, were particularly within the knowledge of the Respondent Unions. Further, whatever the Respond- ent Unions may have believed about the validity of their legal arguments for refusing to comply, before the close of the General Counsel's case, with the respec- tive subpoenas duces tecum issued to them, the substantially identical riders attached thereto constituted, in any event, very suggestive guides as to the various kinds of evidence, at least some of which the Respondent Unions should have had available to them, to meet the General Counsel's prima facie case, provided there had actually been any organizational activities on the part of the JAM in the unit prior to August 16, 1954, or any authorization or application cards secured. from employees therein prior to that date.64 In addition, whatever difficulties, com- plications, or inadequacies may have pertained to efforts made by the General Counsel or the Respondent Company, in attempting to serve Schwartzmiller with their respective subpenas, the Respondent Unions made no claim whatsoever that they could not produce Schwartzmiller, and counsel for them stated on the record that "as far as" he knew Schwartzmiller "is still an employee of the IAM." After studiously reviewing applicable rules of evidence and procedure, it is my considered judgment that, under all the circumstances of this case, the total failure of the Respondent Unions to come forward with any evidence which might refute or explain that adduced by the General Counsel, warrants inferring either that no evi- dence of IAM organizational activities or designations at the Reading plant prior to August 16, 1954, existed, or that such evidence as the Respondent Unions did have 12 See Cadillac Marine & Boat Company, 115 NLRB 107, footnote 1, in which the Board also cited Pacific d Tills, 91 NLRB 60, 61. 63 This prima facie case also included evidence as to the 1955 agreement which is con- sidered in the next section of this report. It may be helpful to note now that, in my opinion, the ultimate findings as to the 1955 agreement hinge upon findings as to majority and assistance with respect to the 1954 agreement. 64 Essentially, in addition to contract drafts, the riders attached to said subpenas sought from the International and the Local Lodge, with respect to any organizational activities among employees of the Reading plant, all authorization cards or other designations re- ceived ; all authorizations for dues checkoffs received ; minutes or records of all meetings held ; all expense accounts , memorandum of itineraries , or other records submitted by any organizers or representatives ; and all handbills , posters, circulars , or other literature used. 476321-58-vol. 119-36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was insufficient to detract materially from the prima facie case against them, or was unfavorable to the Respondent Unions in its tenor.65 Surely, if the Respondent Unions had secured any significant number of membership applications or collective- bargaining designations by any date material to a defense , such designations would have been produced by the Respondent Unions in their own defense at the hearing. Similarly, if there had been any significant amount of organizational activity among the employees in the Reading plant unit prior to August 16, that also could have been demonstrated by the Respondent Unions.66 Further, if Schwartzmiller's role, or that of the members of the Temporary Bargaining Committee, had been substantially dif- ferent from that indicated by witnesses called by the General Counsel, the Respondent Unions could have produced contrary evidence to refute, clarify, or explain aspects of the prima facie case. Everything considered, I am convinced, from the weight of the evidence as a whole and the reasonable inferences to be drawn therefrom, that the IAM had not been designated by a majority of the employees in the approximate unit at the Read- ing plant as their representative at any time prior to August 16, 1954. I am equally satisfied that such adherence as the IAM secured, on and after that date, cannot con- tribute to establishing a valid and unassisted majority. This is true because by August 16 and thereafter, the IAM was making known to employees in the unit the existence of the basic agreement containing union-security and checkoff provisions, which had been negotiated on August 10, signed by the Respondent Company about August 12 or 13, and signed by Schwartzmiller for the International not later than August 17. It thus becomes essentially immaterial, under the pertinent proviso of Section 8 (a) (3) of the Act, whether the date when the basic agreement, containing the union- security provisions, was made be considered August 10, its effective date and the date upon which it was negotiated, or August 17, the date by which it was certainly fully executed. This is true because the IAM undoubtedly did not have a majority in the appropriate unit by the earlier date, while by the latter date, if perchance it had se- cured majority designation, said majority was not a valid one because it had been ob- tained by a labor organization which had by that time been assisted and supported by actions of the Respondent Company which, as of that date, and for reasons further explained hereinafter in section III, G , were clearly embraced within "Section 8 (a) of this Act as an unfair labor practice," to quote from the proviso of Section 8 (a) (3) of the Act. E. The agreement dated August 30, 1955, and conclusions pertaining thereto Some general observations concerning this 1955 agreement, which extended the unit coverage to a second plant in Hillsdale , have already been noted in the general survey in section III, A, above. It will be recalled that the 1955 contract issues were added by amendment at the hearing, at which time the Respondent Unions moved to dismiss, essentially on the ground that the 1955 agreement rendered the controversy moot. While there is much argument in the record as to the significance of this second agreement, and a good deal of testimony as to the circumstances sur- rounding its execution, in my opinion, after sifting the contentions and the evidence, the problem resolves itself essentially into whether this 1955 agreement constitutes, as the General Counsel fundamentally contends , not a separate and distinct but rather "a continuing violation" on the part of the Respondents , or actually constitutes, as the Respondent . Unions contend in their brief , a "new agreement" between different parties which "is neither an extension , a renewal nor a modification of the original contract," and further, as the Respondents all contend , a contract made at a time when there could be no doubt as to majority status. To come to grips with the foregoing essential issues, it is not necessary , as I see it, to discuss various problems and doubts raised by inconsistencies between the testi- mony of employee Margaret Hatfield concerning an IAM meeting on this contract, and the extensive testimony as to its negotiation given by Plant Manager,McFann, who signed the 1955 agreement for the Respondent Company. This is so because I am convinced that the ultimate result would be the same, whether one eventually viewed the reasonable inferences from the evidence as showing that the parties hastened to embrace an opportunity to expand and prolong their contractual relations, even be- fore the second plant had actually been purchased and in the face of pending charges GsSee 2 Wigmore on Evidence, Third Edition, section 285; Interstate Circuit, Inc. v. U. S., 306 U. S. 208, 226; and N. L. R. B. v. Wallick, 198 F. 2d 477, 483 (C. A. 3). 66 For that matter, the Respondent Company, in preparation for trial, could surely have discovered enough evidence of such activity to have materially detracted from the General Counsel's case, if there had, in fact, been enough such activity to have resulted in any- thing approximating majority status for the IAM prior to August 16. BRYAN MANUFACTURING COMPANY 547 filed against them, or rather that the parties thereto arrived at the terms of the 1955 agreement as the result of numerous bargaining conferences, eventually held on several different days during the latter part of August, after the Respondent Company, faced with repeated demands for negotiations,67 and finally with a threatened strike, was advised by counsel to go ahead with bargaining on a wage-reopening request which it had earlier received. It will be recalled that the wage supplement of August 17, 1954, provided that "hourly wage rates only" could be reopened on 60 days' written notice given prior to August 10, 1955; that the basic agreement of August 10, 1954, between the Respond- ent Company and the International had an initial 2-year term which was to run until August 10, 1956; and that article XXI of said basic agreement provided, in essence, that no alteration, variation, or modification of the 1954 agreement could be binding on the parties unless such agreement was executed in writing between said parties. Thus accepting a request for a wage reopening as the initial step leading to the 1955 agreement,68 it is obvious from the terms of the 1954 agreement that the Local Lodge, which entered into the 1955 agreement under the designation "Lodge #1424, International Association of Machinists, AFL," could not have entered into said 1955 agreement without at least the acquiescence of the International. Further, the 1955 agreement was signed not only by a committee of six, headed by Sperbeck, president of the Local Lodge, but also by Carl Cederquist, as Grand Lodge representative. Finally, whatever the details of the negotiations, it is clear from all of the evidence that both Schwartzmiller and Cederquist, representatives of the International, initi- ated the negotiations, and participated throughout the actual negotiations for the 1955 agreement. Schwartzmiller and Cederquist were also present at meetings of the Local Lodge held during the period of said negotiations. Perhaps even more revealing on the issues now under consideration is a detailed comparison of the 2-year 1954 agreement with the 3-year 1955 agreement, the initial term of which runs from August 10, 1955, to August 10, 1958. In brief, the 2 agreements follow the same major pattern, having the same 22 articles with ex- actly the same titles in precisely the same sequence. In many cases, the entire texts of the parallel articles are identical. This is so with respect to the articles entitled "Checkoff" and "Union Shop." In several other articles, the texts are modified only slightly, as for instance where the 1955 grievance procedure incorporates shop stewards in its initial stages. In some cases, such as the "Leave of Absence" article, there are substantial additions as to details. Under the article entitled "General," the original 2 sections are repeated in the later agreement, and 2 new sections are added. In fact, a detailed comparison of the two agreements shows the incorpora- tion of quite a number of changes of the type which a year's experience might well have indicated were desirable. But in my opinion the most significant changes, aside from adding a second plant and extending the term by 2 years, were made in the wage provisions and in the seniority provisions. In contrast with the 7 classifica- tions set out in the 1954 wage supplement, the wage supplement of the 1955 agree- ment contains 11 classifications, each with 3 sets of wage rates to be effective on August 10 of 1955, 1956, and 1957, respectively. As to the article on "Seniority," while almost half of its extensive provisions remain identical in wording, much of the rest of it is substantially or entirely new, particularly the part pertaining to the retention of seniority in both the Reading and the Hillsdale plants by all employees on the payroll as of August 30, 1955. It is my considered judgement that the evidence as a whole, realistically viewed, establishes that the 1955 agreement is actually the 1954 agreement, extended in its scope to include a second plant and in time to provide an additional 2 years to its initial term, and also modified as to its provisions to grant higher wage rates periodically to expand classifications, to meet miscellaneous problems revealed by a year's operating experience thereunder, and to provide for anticipated problems respecting seniority, with a second plant entering the picture. It will be recalled that the extension of the unit to include the Hillsdale plant is not in issue, and I feel that the negotiation of clarifications as to seniority was particularly understandable, since regardless of the stage to which the actual plans had progressed, the Respondent Company was under the necessity of expanding its facilities to some nearby second-plant site. Thus the evidence shows, without dispute, that the Reading plant, which it had originally been planned would operate with about 150 to 200 employees, had outgrown the available facilities. In fact, on ° McFann testified that Schwartzmiller and Cederquist both sought such negotiations, as well as the local committee. 68 I credit McFann's testimony that he received a letter, dated June 6, 1955, making such a request. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 30, 1955, the date of the 1955 agreement and some 2 months before the Hillsdale plant went into operation , there were approximately 350 employees in the unit at the Reading plant, of whom approximately 350 were then having their dues checked off.69 Inasmuch as it was then the Respondent Company's plan, which it has since followed in setting up the Hillsdale plant, to transfer employees, all of whom had to be members of the IAM after 45 days of employment, 70 getting seniority problems with respect to the 2 plants definitely settled was obviously to the advantage of all of the Respondents. But granting that everything which happened between the Respondents during approximately August 1955, and which resulted in the signing of the 1955 agree- ment, stemmed from unassailable factors and motives normally operating in labor- management relations, I find, under all of the circumstances prevailing herein, that the 1955 agreement is a modification and extension of the 1954 agreement; for which all of the Respondents are equally responsible. I further find that the 1955 agreement is subject to the same taint and infirmity as the 1954 agreement, already discussed in the immediately preceding section of this report, and that it therefore constitutes a continuing violation. In any event, even if the 1955 agreement were to be considered a new agreement between different parties, the fact remains that any majority claimed by the Local Lodge at the time the 1955 agreement was entered into, which rests on checkoff authorizations then in effect and secured pursuant to the 1954 agreement, clearly would have no validity in establishing an unassisted majority, under the holding of the Board in its decision in Oliver Machinery.71 F. The affirmative defenses 1. The Section 10 (b) defense The general nature of the Section 10 (b) defense advanced by the Respondents; to preclude the finding of any unfair labor practices in the instant matter, has been indicated earlier in this report. The General Counsel concedes that the 6-month limitation embodied in Section 10 (b) "bars a finding of unfair labor practices based upon the signing" of the 1954 agreement. This is so because the execution of said agreement occurred several months earlier than the beginning of the re- spective 6-month periods preceding the service of the respective charges.72 Hence the allegations of the respective complaints should be and hereby are dismissed, to the extent that they allege "entering into" the 1954 agreement to be an unfair labor practice. On the other hand, from all that has already been said and from the record as a whole, it is clear that at all times during and after the aforesaid respective 6-month periods, which for simplicity will hereafter jointly be referred to merely as the 6-month period,73 the Respondents have maintained in effect and have en- forced their identical union-security and checkoff provisions, first embodied in their 1954 agreement and thereafter contained in their superseding 1955 agreement, during which time, as figures above given show, the number of employees covered by these agreements has increased very substantially. It is as to the continuing violation, within the 6-month period and thereafter, that the General Counsel contends that Section 10 ( b) constitutes no bar to findings of unfair labor practices "based upon 09 These figures are from testimony of McFann, who also testified that there "may have been a few new employees at that time." In any event, there is no question that the identi- cal union-shop provisions in the 1954 and the 1955 agreements have been enforced, and that dues have been checked off under the respective checkoff provisions. Furthermore. McFann testified on November 21, 1955, that the total employment at both plants at that time was about 480 ; that all but the "probationary" employees, whose number McFann estimated as possibly 30 to 40, but was uncertain of because they had "done a lot of hiring lately, in the last 2 months," had authorized the Respondent Company to check off their IA\T dues ; and that no employee who had been with the Respondent Company 45 days or more had ever refused to have his dues to the TAM checked off. 40 For instance, the approximately 25 or 26 employees in the unit who were working at the Hillsdale plant on November 7, 1955, had all been transferred from the Reading plant. 7' See Oliver Machinery Corporation, 102 NLRB 822, 842. ,2 While the term "filing" usually appears in the contentions of the parties, it is clearly- the respective dates of service of these respective charges which are controlling. See foot- note 2 for the dates of service of the charges. ,° This 6-month period begins about 2 months earlier in Case No. 7-CA-130b than it does in Case No . 7-CB-280. BRYAN MANUFACTURING COMPANY 549 the unlawful maintenance and enforcement" of the union-security provisions of the contracts. In short, the General Counsel views the 1954 agreement as so tainted with illegality, by virtue of conditions prevailing when made, that maintenance and enforcement thereof, and of the 1955 agreement which superseded it, con- stitute unfair labor practices beginning 6 months prior to the charges. Because the circumstances of this case appear to pose an element of novelty with respect to the legal problem here being considered, I have given the matter a good deal of careful attention. The cases involving Section 10 (b) which have been painstakingly consulted have been quite numerous, and have not all pointed in the same direction. Further, the decision which I have finally reached, one essentially in accord with the position of the General Counsel, is not entirely free from doubt. This is so partly because the union-security provisions in issue admittedly and ob- viously are not illegal per se, if by per se one means on their face or in terms of their "verbiage," and also because "the continuing violation theory," to use lan- guage from a recent Board decision cited by the General Counsel, that in Bowen Products,74 "has been limited largely to situations involving the applications of union-security agreements which are prospective in nature and unlawful per se." As I understand the decisions, there would be no doubt as to the correctness of the continuing-violation theory with respect to Section 10 (b) if the 1954 agree- ment in this case had contained, let us say, a closed-shop provision, as did the agree- ment involved in the McGraw decision of the Sixth Circuit.75 In the McGraw case, the agreement which was entered into between the company and the union on a , nationwide basis in July 1948 provided that the company, when the union could furnish them, would "employ only members of the union in good stand- ing." The Board found that the company conformed to the general pattern of the :agreement when it "began hiring early in 1951 at the Paducah project." It was the company's position before the court with respect to Section 10 (b) that the Board's findings were invalid because the 1948 contract was executed more than six months before the filing and serving of the charges." But the court said that the unfair labor practice alleged "was not the execution of this contract, but its en- forcement and implementation after June 1951, all of which took place within the period of limitations provided in the Act." In overruling the Section 10 (b) con- tention of the company in a situation where almost 3 years had intervened between the execution of the contract and the beginning of the continuing violation, the Sixth Circuit said: As long as the contract 'in violation of the Act continued in force, a continuing offense was being committed; and since the contract was in force at the time of filing, the six-month period of limitations had not begun to operate; and the complaint was, in all respects, valid 76 While it is generally true that the "cases in which the Board and the Courts have found a continuing violation are cases in which the verbiage of the union security clause is illegal," as the brief of the Respondent Unions phrases it, there is one Board decision, Federal Stores,77 cited by the General Counsel, in which a holding of violation, by virtue of continued enforcement of an agreement executed prior to the 6-month period, was bottomed squarely on failure at the time of execution to satisfy a stipulated condition. Said condition, since removed by amendment from the proviso to Section 8 (a) (3) of the Act, which was then required but had not been satisfied in the Federal Stores case, was that the union-security agreement be authorized pursuant to an election conducted by the Board. Thus in the Federal Stores case, where a prerequisite condition was lacking with respect to the agree- ment . when made, Section 10 (b) served only to protect the execution of the agree- ment from being found to constitute an unfair labor practice, but it did not protect the continued enforcement of said agreement from unfair labor practice findings beginning with the six-month period prior to the service of the charge. Bowen Products Corporation, 113 NLRB 731. See N. L. R. B. V. F. H. McGraw and Company, 206 F. 2d 635, 637-639. This is one of the decisions cited by the Board in footnote 3 of its above-mentioned Bowen Products decision. 78 For a similar result in a Board decision, see Paul W. Speer, Inc., 98 NLRB 212, in which the Board found that the continued effectiveness, within the 6-month period pre- ceding the service of charges, of a contract containing an illegal union-security provision was violative of the Act by both the company and the union involved, although Section 10 (b) precluded a finding that the execution of the contract was unlawful. 11 See Federal Stores Division of Speigel, Inc., 91 NLRB 647, 655-657, and 661. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In my opinion, the above general result reached by the Board in its Federal Stores decision, and its reasons therefor,78 are applicable to the case at bar, even though the unmet prerequisite conditions herein are different. In short, it is my considered judgment that since, for reasons discussed elsewhere in this report, the 1954 agree- ment when made failed to meet prerequisite conditions then and presently specified in the proviso to Section 8 (a) (3) of the Act, said 1954 agreement was ab initio just as illegal, null, and void as it would have been if its terms on their face had failed to meet requirements specified in said proviso. Accordingly, I find that the Section 10 (b) defense advanced by the Respondents must fail. 0 2. The defense based on alleged fronting It will be remembered that the chronological setting of major factors about front- ing, with respect to other factors in the instant matter, has been presented in section III, A. To present fully now all of the facets of the evidence and the contentions concerning fronting, to all of which I have given very careful consideration, would greatly protract this report. In my judgment, such a detailed approach is not necessary because, despite the novelty of some of the contentions and certain un- resolved doubts, I have become convinced that, in any event, the defense of front- ing must fail because it appears from the weight of the credible evidence as a whole that, in giving advice and assistance which was sought by Mead and other employees, President Salomon was actually functioning as an individual, rather than on behalf of Local 701. Let us first consider briefly certain relevant facts concerning the compliance status of Local 701. Admittedly Local 701 was not in compliance on August 5, 1955, at the time Mead filed her original charge in Case No. 7-CB-280 and her supplemental charge in Case No. 7-CA-1303, or at the time the complaints in the in- stant matter were issued on October 5, 1955. But Local 701 had been in com- pliance during the spring of 1955 when Salomon, as is more fully indicated here- after, was advising Mead and other employees,79 and it was also in compliance at the time Mead filed the first of the charges, the original charge in Case No. 7-CA- 1303, on June 9, 1955. However, Local 701 has evidently not again perfected its compliance since a slate of officers, elected shortly before, took office on June 13, 1955.80 On that date, Salomon, who had not been a candidate for reelection, ceased to be president of Local 701. He was succeeded on June 13 by Roland Playford, who testified credibly and convincingly on November 23, 1955, that Local 701 had engaged in no organizational activities since he had become its president; that he did not know Mead; and that he had not heard of Mead until about 6 weeks be- fore his testimony. It should also be noted that William Nichols, the recording secretary of Local 701 since June 1954, testified forthrightly and convincingly on November 23, 1955, that his duties included seeing "that the affidavits are filled out and notarized and sent in"; that he had come the preceding day to see the General Counsel because he had "heard by the grape vine" that Local 701 was not in com- pliance; and that he had told the General Counsel that they were in compliance because he had mailed the affidavits himself and "knew they were in there, and that they were sent in the same this year as we sent in previous years." 81 78 Compare also the above-cited Oliver Machinery decision. 79 The record is consistent in showing that Local 701's last term of full compliance be- came effective on March 30, 1955. 80 Assuming, as the General Counsel essentially contends, that this failure of Local 701 to again perfect compliance under its new slate of officers consists merely of a technical defect, arising because one of the officers "submitted one instead of two affidavits," and assuming further that said defect has not been corrected "due to a ministerial error on the part of the Regional office" in sending notices of lack of compliance to a former officer, rather than to an individual currently holding office, I find no precedent for a Trial Examiner disposing of a fronting issue on any such grounds as that the admitted failure fully to achieve compliance was merely a technical one, or was due merely to a ministerial error. A two-page letter dated December 2, 1955, from the General Counsel concerning compliance matters, which was addressed jointly to me and to Attorneys Gallucci and Poulton, is hereby made a part of the formal file in the instant matter. 81 The record shows that two letters notifying Local 701 of "deficiencies in 9 (h) com- pliance," dated June 22, 1955, and November 1.8, 1955, were mailed to William H. Burger, the financial secretary of Local 701 before some of the officers weie changed on June 13, 1955. Prior thereto, beginning during the latter part of 1954, a number of earlier letters concerning compliance had been addressed to Burger during his term of office. There is nothing in the record to suggest what may have happened to the compliance letters erroneously sent to Burger after he had ceased to be an officer of Local 701. BRYAN MANUFACTURING COMPANY 551 The overall position of the Respondents 82 is essentially that Mead was fronting for Local 701 when she filed the first of her charges on June 9, 1955, and that she thereafter "continued to front for Local 701" in her filing of the two subsequent charges on August 5 "concerning the same or similar allegations contained in the original charge." The primary position of the Respondents thus rests upon a continued fronting theory, it being their contention that the charges of August 5 are "all directly connected with the allegations in the original charge." In fact, the Respondents did not seek to offer any evidence as to events after June 9, relying rather on evidence as to developments up through that date to establish, as it were, a momentum of fronting which under their theory would continue through to the sub- sequent charges which were filed almost 2 months later.83 Certain unusual circumstances in this case lead the Respondents to take an additional position with respect to the fronting issues. This position is expressed in the following paragraph which is quoted in full from the brief of the Respondent Unions : There is an additional reason for the Charging Party fronting for this Local, which the evidence will bear out, and that is, the International of the UAW-CIO, had notified this Local to cease organizing at Bryan Mfg. Co. because of the IAM-UAW No Raid Agreement, and in disregard of this order, the Local's President continued his organizing activities. If the Local had filed charges ,on behalf of the employees at Bryan Mfg. or on its own behalf, it would have been in disregard of the order of the International. Therefore, to obtain the same result, the Local's President had the Charging Party sign the charges. The Charging Party was fronting for the Local to secure benefits which would inure to the Local and not to herself because of the IAM-UAW No Raid Agreement. As Local 701, UAW-CIO, was not in compliance at the time the Complaint issued then the defect of lack of compliance was fatal to the issuance of any Complaint. There is no doubt that the crucial date is the date on which the Complaint issued. [Footnote reading "See NLRB vs. Dant, 344 US 375, 73 S Ct. 375."] In my opinion, the fronting issues should be approached through an appraisal of the relationship of the roles of Salomon and Mead to Local 701, viewed in the light of all the circumstances. If these roles added up to fronting, in the sense that Mead was acting for Salomon who was acting for Local 701, a number of other interesting questions, some of them apparently novel, would present themselves for con- sideration. But as I view the total picture after careful consideration, we do not reach. certain other problems because I am satisfied that Salomon was acting on his own in advising a group of employees who had come to him with what they felt were problems. In turning now to some of my reasons for reaching the fore- going conclusion, let me point out that, as the Board said in its Wood Parts decision,84 whether an individual who filed a charge was acting as an individual seeking redress for violations of the Act . . . or was acting as a representative of the non-complying union so that his charges were merely a device whereby the union could avoid complying and yet seek by subterfuge to reap the benefits of the Act . presents a question of fact which must be determined by an appraisal of all the evidence in light of the circumstances then existing. ea This summary of position is from the brief of the Respondent Unions which the Re- spondent Company's brief "incorporates by reference . . . as though it were fully con- tained" therein. sa The General Counsel offered to prove, in essence, through details as to events occurring after June 9, that even if Mead had originally been fronting for Local 701 when she filed the first of her charges, various altercations and pressures during the ensuing 2 months had so personally incensed her as to reorient Mead's motivation and thus wash out any alleged original fronting, thereby making her charges of August 5 her own acts, in any event. Since.I am now convinced that fronting. did not exist in the first place, any such showing as to subsequent events by the General Counsel would have no bearing upon a theory of continued fronting, where the original fronting has not been established by the evidence. It is for this reason that I have decided, as earlier indicated, not to reopen the hearing to receive such evidence. It is also noted that during their cases, the Respondents gave notice of intention to amend their respective answers to include certain allegations as to conduct of Regional Office personnel, but that later, as appears in the record, such in- tentions to amend were withdrawn. 84 WVood Parts, Inc., 101 NLRB 445, 446. .552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It will be recalled that during July 1954 the UAW, about whose compliance status no question is raised, began securing authorization cards from employees of the Reading plant, and that some meetings where held, principally at the home of Mary Carter. Mead's role in this 1954 activity, which was initiated and directed by an international representative of the UAW, with assistance from members of Local 701, appears to have been confined to attending at least one meeting. Mead did not sign a UAW authorization card, although she knew others were doing so. It should be noted that had the UAW's organizational activities succeeded, Local 701 might ultimately have included the employees of the Reading plant within its amalgamated coverage. However, the question of any such inclusion, which would have required the approval both of Local 701 and of the Reading employees, was never reached. Further, it was also possible under UAW procedure for the Reading plant employees to have constituted a local of their own. But whatever the .relationship between the Reading plant employees and Local 701 might ultimately have been, it is clear that the UAW, apparently about the last of August or the first of September 1954, decided to drop its organizational activities at the plant and that, through two of its international representatives, it also instructed Local 701 to drop the matter. Save for Salomon's admitted dislike of those instructions and his subsequent activity in the spring of 1955, beginning some 8 months later, there is nothing in the record to show any disagreement with those instructions on the part of any other officers of Local 701, or any activity thereafter on the part of any officer of Local 701 other than Salomon. In connection with the above broad finding, three matters referred to in the brief of the Respondent Unions should be noted. Florence Napier, when called as a witness by the Respondent Unions, testified that on August 23, 1954, five individuals, who apparently were members of Local 701, passed out circulars about which Napier knew nothing except that they contained at the bottom the legend "UAW-CIO." According to Napier, those circulars were distributed 2 days before an IAM mass meeting of employees, which I am satisfied was the meeting at which the IAM's organization was carried forward by an election of officers, among other things. In any event, whatever those UAW circulars, distributed outside the plant by five members of Local 701 on August 23, may have contained, I am satisfied that this incident took place before the UAW abandoned its organizational activities and instructed Local 701 to do likewise. We come now to a second matter raised by Respondent Unions, the fact that Financial Secretary Burger drove Salomon's car to Detroit on June 9, 1955, the day that Mead, in company with Salomon and Buelah Layman, at whose home two meetings had recently been held, went to the Regional Office to file the original charge. I am convinced from the testimony of Salomon and Mead that: Burger had nothing whatsoever to do with the filing of said charge; said charge was actually drawn up in the Regional Office by a staff member, after Mead had explained her version of the situation in an interview lasting approximately half an hour, during about half of which Salomon was present; Burger did not accompany Mead when she went with Salomon and Layman to the Regional Office; and Burger and Salomon made their trip that day to Detroit to transact union business which, as Salomon credibly and in detail explained it, obviously had nothing to do with Reading plant employees or Mead's charge, said business being transacted by Salomon and Burger at the UAW's headquarters before the charge was filed, and while Mead and Layman waited in Salomon's car in a parking lot. As to the third point, the August 17, 1954, conversation' between Schwartzmiller and several officials of Local 701, other than Salomon, clearly occurred prior to the UAW's decision to abandon its organizational activities. It will also be remem- bered that said conversation ended with the officers of Local 701 saying that the "two international unions will have to fight it out." Not only is there no evidence establishing that any officer of Local 701, other than Salomon, had anything to do with aiding or advising the group for which Mead eventually acted in filing their original charge,85 but there is credible testimony indicating that Salomon was not acting for Local 701 in advising said employees. For instance, Burger testified convincingly that when the executive board of Local "701 learned that the UAW's International organizer had requested them to drop organizing at the Reading plant, they voted unanimously to do so. Also Recording Secretary Nichols, referring to Local 701's official minutes which were produced at the hearing, testified convincingly that at "a local meeting" on September 23, sK Their original letter of inquiry to the Regional Office in May had been written "as a group," but the reply received thereto had stated that only one individual needed to sign a charge. BRYAN MANUFACTURING COMPANY 553 1954, a motion was passed that "the president shall not do any organizing on Local money"; that there had been no further "official motion since that date" concerning the matter; and that there had not subsequently been any assistance to the UAW in organizing Bryan employees. In addition, Salomon testified credibly that Local 701 had not had any knowledge of his accompanying Mead on her visit with Layman to the Board office on June 9. In short, however much Salomon's activities in the spring of 1955 may appear to have contravened the instructions given by international representatives of the UAW, the weight of the credible evidence does not warrant ascribing those activities to Local 701. On the contrary, I am con- vincd that in rendering advice and assistance, which will now be briefly summarized, Salomon was acting as an individual in responding to requests made of him. There can be no doubt from all of the evidence that beginning about April 1955,. and continuing until a meeting at Buelah Layman's home on the evening of June 8, a number of meetings were held by Reading plant employees who were concerned about how the IAM was representing them and about employment matters, including the discharge of several employees. While the exact number and dates of these meetings cannot be established, there apparently were several such meetings. It also appears, from my analysis of all of the testimony, that Salomon attended at least 1 of several meetings held during this period at the home of Mary Carter; 86 that Salomon attended, upon invitation, an open meeting of the IAM, which was held in a hall after the members of the Local Lodge had voted to have such an open meeting; and that Salomon also attended 2 meetings at Layman's home,87 the last being a meeting on June 8, at which it was definitely decided to file charges. The evidence is essentially consistent that Salomon attended the above meetings. because he was invited to do so, and that he repeatedly told those present that he was there only in his capacity as an individual. To illustrate, Joseph Smith testified, when called as a witness by the Respondent Unions, that Salomon was at 2 meetings which he had attended, 1 at Carter's and 1 at Layman's, and that Salomon had told them "quite often" that he was not there "representing anybody, but just as an individual trying to give Maryalice some help." Smith also testified that Salomon said, among other things, that "Maryalice had come to him for help"; 88 that he "would like as much information as they could give him, as to other people that had been fired"; that there was "a possibility the IAM could be removed. from the shop, and we could vote for a union of our choice"; 89 and that he was not trying to compare the IAM to the CIO but that no union "he knew of would have a no-strike clause such as we had in our contract." Assuming Smith's version, which I feel was somewhat overstated, represents approximately the general role which Salomon played in the meetings he attended, I see nothing in such participation to establish that Salomon was acting in any role other than that of an individual. Moreover, my study of the testimony of Mead and Salomon as to the various other occasions upon which they met individually during the spring of 1955 convinces me that: It was always Mead who went to Salomon; there were several occasions upon which Mead sought Salomon's advice, both at another plant where Salomon worked and at the office of Local 701, about matters of concern to employees of the Reading plant; their conversations on such matters sometimes overlapped their negotiations about the purchase of a saddle horse; 90 and while Mead was un- doubtedly influenced by Salomon's advice and suggestions, including information as to the filing of a charge, it was Mead, and the dissatisfied employees among whom she assumed leadership, who sought out Salomon, rather than the other way around. And it should be remembered that Mead's action in filing the original charge did not take place until many months after the UAW's organizational campaign had been abandoned in the face of the 1954 contract which the IAM had signed under illegal conditions described earlier in this report. To sum up, in my opinion an appraisal of all of the evidence, in the light of the circumstances then existing, reveals essentially this picture. Discontent at 88 Mrs. Carter. whose husband was a steward in Local 701, testified that she had known Salomon since she was "about 6 years old." 87 It is not clear how many employees attended these various meetings, but as many as 50 may have attended 1 of the meetings in Layman's house. 88 During his testimony, Salomon named several others who also had come to him. 89According to Salomon, what he stated was that "there was a possibility the Board would order an election, and they would have the right to join the union of their own choosing." 80 During June 1955, Mead, a young woman approximately 21 years of age, finally bought a horse from Salomon, a substantially older man. Mead thereafter paid for the horse in a series of installments. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Reading plant developed among employees who resented the way in which their right to self-determination had been thwarted when the IAM's contract had literally been thrust upon them in August 1954. This discontent, compounded with sus- picions and uncertainties as to why some employees had been discharged,91 resulted in meetings among employees during the spring of 1955. Despite the abandon- ment of its organizational campaign by the UAW, leaders among those who were discontented, some of whom were personally acquainted with Salomon, turned to Salomon for advice at a time when he was president of Local 701, and Local 701 itself was actually in full compliance. Salomon, because of his sympathy with what he believed to be problems of those employees, gave advice and assistance sought, repeatedly explaining that he was acting as an individual in doing so. The original charge in Case No. 7-CA-1303 included not only allegations as to discharges of seven employees other than Mead, but it also included allegations as to the Re- spondent Company's having thwarted efforts toward self-organization by having recognized and contracted with the IAM. Mead thus was presenting grievances not only for those employees, but also her own grievance about the IAM, under whose contract she was being required to pay dues to a labor organization in the choice of which she, as well as other employees, had had no opportunity to par- ticipate, thereby being deprived of fundamental rights guaranteed by the Act. A careful reading of the 2 court decisions from which the Respondent; Unions quote in their brief-the Sixth' Circuit's decision in Alside 92 and the Fifth Circuit's decision in Happ Brothers,93-will reveal how clearly distinguishable the facts in those 2 cases are when compared with the facts in the case at bar. It will also lead to the conclusion that what the Ninth Circuit Court said in its Ronney decision,94 in distinguishing the Happ Brothers and Alside decisions, is equally applicable here, namely that in "each of those cases the court held that where the president and chief protagonist of the interested but disqualified union" had filed the charges on behalf of himself and a great number of other union employees "he was acting as a representative of the union and not as an individual," but that those cases were not applicable to the case at bar. It should also be noted that in its Ronney de- cision the Ninth Circuit quoted with approval the following language from the decision of the Fifth Circuit in Augusta Chemical: 95 Granting that the disqualified union was active in assisting, indeed in directing, the employees in preparing their charges, it does not at all follow that the employees, by accepting that assistance, qualified themselves. Similarly, the Board's decision in Publishers Printing,96 which the Respondent Unions cite, is clearly distinguishable. In that case the individual who was held to have been fronting was a member of the union actively-soliciting for it; he filed the charge-) when organizational activities were "in full swing"; and the union manifested an interest in processing said charges. In view of all the foregoing and the record as a whole, I find that Mead was not fronting for Local 701 when she filed the original charge in Case No. 7-CA-1303, or the two subsequent charges on August 5, 1955, but that Mead was rather acting within the limits accorded by applicable decisions to an individual seeking redress under the Act. G. Conclusions as to the unfair labor practices As to Case No. 7-CB-280, on the basis of the findings and conclusions set out hereinabove, and the decisional precedent cited in the margin,97 I conclude and find that the Respondent Unions, by continuing in effect, during and after the 6-month period preceding the service of the charge in Case No. 7-CB-280, their illegal union-security agreement dated August 10, 1954, and their superseding illegal agreement dated August 30, 1955, have violated Section 8 ('b) (2) of the Act, and have restrained and coerced employees within the meaning of Section 8 (b) (1) (A) of the Act. ei Whether or not there was any basis for such feeling concerning discharges is not in issue in the instant case. 92N. L. R. B. v. Alside, Inc., 192 F. 2d 678. 98 N. L. R. B. v. Happ Brothers Company, Inc., 196 F. 2d 195. 94 N. L. R. B. V . L. Bonney & Sons Furniture Manufacturing Co., 206 F . 2d 730, 732. 95 N. L. R. B. v. Augusta Chemical Co., 187 F. 2d 63, 64. 96 Publishers Printing Company, Incorporated, 110 NLRB 55. 97 See Harold Hibbard and Ben R . Stein, d/b/a Hibbard Dowel Co., 113 NLRB 28, and Robbie Shoe Corp., 113 NLRB 314. BRYAN MANUFACTURING COMPANY 555 With respect to Case No. 7-CA-1303, one further position taken in the Respond- ent Company's brief should be considered. It is therein contended that with the background of this case "it is both reasonable and fitting that the Company would almost unquestionably follow the legal advice of a trusted counsellor." Let us assume that the Respondent Company did not know of the organizational activity of the UAW prior to its decision to recognize the IAM. Let us also assume that the Respondent Company had no reason to doubt the IAM's claim of majority representation when it negotiated and signed the basic 1954 agreement. Let us further assume that at no time during its deciding to recognize, to bargain with, and to enter into the contract with the IAM, was the Respondent Company moti- vated by economic pressures, direct or indirect. Nevertheless, in view of the unmistakable requirements of the proviso of Section 8 (a) (3) of the Act, neither the good faith of its attorney in giving advice, nor the good-faith reliance of his client in accepting advice, can serve as a defense, since the Respondent Company, in recognizing the IAM and in entering into a union-security contract with it, without requiring the IAM to establish the majority which is a legal prerequisite for such a contract, obviously acted at its peril. And since the IAM was not the majority representative, the Respondent Company, regardless of its motives, illegally assisted and supported the IAM when it granted recognition to and contracted with the IAM.98 Accordingly, on the basis of the findings and conclusions set out bereinabove, including the decisional precedent cited in the two immediately pre- ceding footnotes, I conclude and find that the Respondent *Company, ' by continuing in effect, during and after the 6-month period preceding the service of the charge in Case No. 7-CA-1303, its illegal union-security agreement dated August 10, 1954, and its superseding illegal union-security agreement dated August 30, 1955, has violated Section 8 (a) (2) and (3) of the Act, and has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, in violation of Section 8 (a) (1) of the Act. On the other hand, making all due allowances for various details in the General Counsel's evidence which have not been set out herein, but which have all been fully considered, I am not satisfied that the entire pattern of events pertaining to the 1954 agreement and the 1955 agreement, as revealed by the weight of the credible evidence, establishes that the Respondent Company has sponsored and 'dominated the Respondent Unions.99 Accordingly, such allegations of the complaint in Case No. 7-CA-1303 should be, and hereby are, dismissed. . IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in section III, above, occurring in ,connection with the operations of the Respondent Company; set forth 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 will be recommended that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondents have engaged in unfair labor practices by continuing in effect and enforcing their illegal union-security agreements. Among other things, said agreements require all employees, in the units therein specified, to join and to pay dues and initiation fees to the Respondent Unions. However, 18 See Adam D. Goettl and Gust Goettl d/b/a International Metal Prodvcts Company, 104 NLRB 1076, 1.077, wherein the Board found violations of Section 8 (a) (1) and (2) of the Act in a situation where the contract does not appear to have included a union- security provision. The holding of the Board is based squarely on the fact that the con- tracting union "was not the majority representative of the employees involved when recog- nization was granted and the contract executed." An examination of footnote 1, which fol- lows the foregoing quotation, makes it plain that the Board, in reaching the foregoing holding, did not rely upon, or even pass upon, any knowledge which the company in that case may have had as to any interest on the part of another union, or any such desire as the company may have had "to avoid costly conflicts" with the union with which it did contract. The four decisions cited in footnote 17 of the brief of the Respondent Unions have been duly considered in reaching the above and other determinations. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent Unions have not been legally designated as exclusive bargaining representatives by an unassisted majority of such employees. It will accordingly be recommended that the Respondent Company cease giving effect to such agree- ments, or to any extensions, renewals, modifications, or supplements thereto or to any superseding agreements with the Respondent Unions, unless and until said Respondent Unions, or either of them, shall have been duly certified by the Board as the representative of the Respondent Company's employees in an appropriate unit. It should be noted, however, that nothing herein shall be construed as requiring the Respondent Company to vary any wages, hours of employment, rates of pay, seniority, or other substantive provisions in its relations with the employees them- selves, which the Respondent Company had established in the performance of said agreements. Furthermore, to the extent that the Respondent Company has deducted periodic dues and initiation fees from wages of employees and former employees for remittance to the Respondent Unions, under signed authorizing procedures, it will be recommended that the Respondent Company and the Respondent Unions, jointly and severally, be ordered to make whole each of said employees for the amount of dues and initiation fees deducted from his wages beginning with the respective applicable 6-month periods. With respect to the Respondent Company, the usual procedures and type of notice will be recommended. As to the posting of notices by the Respondent Unions, since only employees of the Reading and Hillsdale plants of the Respondent Company and only members of Local Lodge No. 1424 appear to be involved in the instant matter, I deem it sufficient for the remedial purposes of the Act for the Respondent Unions to sign the joint notice, to supply such signed notices for post- ing by the Respondent Company, and to post such signed notices in all appropriate places. Upon the basis of the foregoing findings of fact and the legal conclusions already stated, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Bryan Manufacturing Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. International Association of Machinists, AFL-CIO; Local Lodge No. 1424, International Association of Machinists, AFL-CIO; International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO; and Local 701, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO; are all labor organizations, within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby encouraging membership in International Association of Machinists, AFL-CIO, and Local Lodge No. 1424, International Association of Machinists, AFL-CIO, Bryan Manufacturing Company has engaged in and is engaging in un- fair labor practices, within the. meaning of Section 8 (a) (3) of the Act. 4. By assisting and contributing support to International Association of Machinists, AFL-CIO, and Local Lodge No. 1424, International Association of Machinists, AFL-CIO, Bryan Manufacturing Company has engaged in and is engaging in un- fair labor practices, within the meaning of Section 8 (a) (2) of the Act. 5. By its discrimination in favor of, and by its assistance to and support of, In- ternational Association of Machinists, AFL-CIO, and Local Lodge No. 1424, In- ternational Association of Machinists, AFL-CIO, Bryan Manufacturing Company has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. 6. By causing Bryan Manufacturing Company to discriminate in regard to hire and tenure of employment in violation of Section 8 (a) (3) of the Act, Interna- tional Association of Machinists, AFL-CIO, and Local Lodge No. 1424, Interna- tional Association of Machinists, AFL-CIO, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (b) (2) of the Act. 7. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, International Association of Machinists, AFL-CIO, and Local Lodge No. 1424, International Association of Machinists, AFL-CIO, having engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (b) (1) (A) of the Act. 8. 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.]