Vapor Blast Manufacturing Co.

74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of this Agreement, or any fine or penalty is assessed against a member of the Association by the Joint Committee or by any arbitrator appointed pursuant to this Agreement, the Association agrees to pay any sums assessed thereby from its own treasury within three (3) days of the final decision of the Joint Committee or the arbitrator (g) The liability of the Employers under a bond posted pursuant to this Agree- ment shall be several and not joint When the obligation of this Agreement shall cease for any reason, the Employer may request the return of his cash bond and the Association may request the cancellation of its obligation as surety (h) The Union agrees to release the Association as surety for any Employer, a member of the Association , covered hereunder who withdraws from the Association during the term of this Agreement, two (2) weeks after receipt of written notice from the Association that said Employer has withdrawn from the Association The re- lease of the Association as surety shall not be construed as a release of the Em- ployer involved from the terms of this Agreement by the Union , and such Employer shall post within the aforementioned two (2 ) week period a $1,500.00 cash bond with the Window Cleaning Contractors' Guaranty Account Failure of an Em- ployer withdrawing from the Association to post such bond within the stipulated period shall be sufficient reason for the Union to cancel its agreement with such Employer, notwithstanding any other provisions of this Agreement Vapor Blast Manufacturing Company and Vapor Blast Inde- pendent Shop Worker's Association and Erwin Strobel, John G. Westphal, Frederick Kaleya, Edwin Griffa and International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, AFL-CIO, and Its Locals 575 and 1092, Parties to the Contract. Cases Nos 13-CA-3006, 13-CA- 3043, 13-CA-3044, 13-CA 3045, and 13-CA-3046 January 12, 1960 DECISION AND ORDER On August 7, 1959, Trial Examiner C W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint Thereafter, the Respondent, the General Counsel, and the UAW filed exceptions to the Intermediate Report, and support- ing briefs The Board i has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases,x and hereby adopts the findings, conclusions, and recom- 1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with, these cases to a three-member panel [Members Rodgers, Jenkins, and Fanning]. g As the record and the exceptions and briefs adequately present the issues and the positions of the parties, the Respondent's request for oral argument is denied 126 NLRB No 6 VAPOR BLAST MANUFACTURING COMPANY 75 mendations of the Trial Examiner , with the following additions and modifications. The essential facts in this case may be summarized as follows : Apparently on the basis that the UAW then represented its em- ployees, the Respondent executed a collective-bargaining agreement with the UAW in September 1949, which was to be effective for 1 year, and thereafter for yearly periods in the absence of the usual 60- day notice of a desire to modify or terminate the agreement. After 1951, however, there was no relationship , contractual or otherwise, between the Respondent and the UAW, and the UAW had no mem- bers in the plant. In early August 1958, the employees , because they had apparently not received a general wage increase in 4 years , held a meeting, and elected a bargaining committee to obtain such a wage increase. The demand for such a wage increase was presented to the Respondent by employee Strutz, who had been elected chairman of the committee. 'The response of Respondent President Eppler to this demand was to heap both verbal and physical abuse upon Strutz as the "instigator" and a "troublemaker," to summarily discharge Strutz, and to tell .Strutz that he was "not going to sit down with any damned com- mittee." Strutz 's discharge precipitated a strike of the employees, which continued until the following day, when Respondent Counsel, Ihrig met with the committee but flatly rejected the demand for a wage increase, claiming that Respondent was losing money and that it already had a contract with the UAW. Strutz protested that he had never heard of such a contract . There was an agreement, how- ever, that the employees return to work, and that there be further negotiations. There were three meetings thereafter in August, but with no results. At a final meeting on September 2, Respondent Coun- sel Ihrig told the committee flatly that there would be no contract and that the committee would get "nothing." In the evening of that same day, the employees formally established the Independent Union herein, adopting bylaws and a constitution and electing officers-Strutz as chairman and employee Kaleya as secretary-treasurer-and the employees signed cards authorizing the Independent to serve as their bargaining agent. The next day em- ployee Toler was interrogated by Respondent Superintendent Meyer regarding events at the Independent meeting the night before, and Toler told him that Strutz and Kaleya had been elected officers of the Independent. On September 4, Independent Attorney Galka sent a letter to Respondent, stating that the Independent had been formed, and that it represented a majority of the "Shop " employees, and re- questing recognition as the bargaining agent for such employees. This letter was received by Respondent on September 6, and by that time 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a clear majority of the employees in the appropriate unit had signed authorization cards for the Independent.3 In the meantime, on September 5, Respondent President Eppler, after telling employee Toler that he was going to fire both Strutz and Kaleya for engaging in union activity,4 summarily discharged these employees. These discharges precipated a strike on the next work- ing day, September 8, and for the next 2 or 3 days there were pickets at the plant, three of whom were employees Griffa, Strobel, and Westphal. On September 10, Independent Attorneys Galka and Miller met with Respondent Counsel Ihrig, and requested the return to work of all strikers. Ihrig, however, stated that Strutz and Kaleya would not be reinstated under any circumstances, and also declined to take back Griffa, Strobel, and Westphal at that time; and while indicating that the latter three might come back later, none of the three was ever recalled, and in a subsequent affidavit given to the Board Eppler stated that these three employees were "terminated" as of September 8, the date of the strike, because they had partici- pated in the picketing. At this same meeting on September 10, Ihhrig explained Respond- ent's failure to answer the Independent's request for recognition by stating that he had advised Eppler "to ignore it," and once again claimed that Respondent was still under contract with the UAW. On or about the same date, however, Ihrig instructed employees Toler, Buth, and Adams to go to one Pellant, a UAW representative, to see whether the old contract "was valid or not"; and Eppler stated that he was already prepared to recognize the UAW. The three employees went to Pellant, who told them in substance that the old contract was no longer in effect, and that new cards would have to be signed to reinstate the UAW as bargaining representative. After this visit, on September 16 and 17 a majority of the employees signed cards desig- nating the UAW as their bargaining agent, and thereafter in Novem- ber Respondent executed a collective-bargaining agreement with the UAW. The Trial Examiner found, and we agree, that: (1) Strutz and Kaleya were discriminatorily discharged because of their leadership in the Independent, and to discourage further activity on behalf of the Independent; (2) Superintendent Meyer's interrogation of em- ployee Toler on September 3 as to what had occurred at the Inde- 3 The Trial Examiner found that 14 employees , out of a maximum possible total of 26 employees in the unit, had signed such cards The record shows, however, that 15 employees signed cards by September 5, and we so find Moreover, as found below, 2 of the 26 employees are supervisors as defined in the Act, and therefore excluded from the unit. Accordingly, the Independent had been designated by 15 of the 24 employees in the unit 4 Eppler's actual statement to Toler was that he was going to discharge Strutz and Kaleya for engaging in union activity during working hours However, the record is devoid of any evidence to support Eppler's charge that these employees had engaged in any union activity during working hours. VAPOR BLAST MANUFACTURING COMPANY 77 pendent meeting the night before was, in the circumstances, a viola- tion of Section 8(a) (1) ; (3) Griffa, Strobel, and Westphal were discriminatorily discharged, and thereafter refused reinstatement, because they engaged in the protected concerted activity of striking and picket* g to protest the discriminatory discharge of Independent Officers Strutz and Kaleya, and to discourage activity on behalf of the Independent; (4) Respondent's admitted refusal to recognize the Independent was a refusal to bargain in violation of Section 8(a) (5) ; ' and (5) Respondent gave assistance and support to the UAW in violation of Section 8 (a) (2) by virtue of the unlawful discharges of the Independent adherents and the refusal to recognize the Independent, and also by virtue of Ihrig's instructions to em- ployees to see UAW Representative Pellant, Eppler's promise to recognize the UAW even before the visit to Pellant, and thereafter the prompt recognition of, and signing of a contract, with the UAW. Both Respondent and the UAW contend, in substance, that the UAW was not in a defunct status at Respondent's plant, and that therefore this was a Midwest Piping situation.' They appear to argue from this that, while perhaps the Midwest Piping situation did not excuse Respondent's renewed recognition of the UAW after the Inde- pendent's request for recognition, such a situation did excuse Respond- ent's refusal to recognize the Independent, and the appropriate remedy now at the most is an election between the two unions and not a bargaining order in favor of the Independent. As found by the Trial Examiner, the record clearly establishes that between 1951 and 1958 there was no relationship, contractual or otherwise, between Respondent and the UAW, and the UAW had no members in the plant. Thus, as set forth by the Trial Examiner, employee Buth, who had been chairman of the UAW committee which signed the 1949 contract with Respondent, testified that he had been a member of the UAW until the UAW "folded" in 1950 or 1951; ' G In this connection , the Trial Examiner found that it unit of all shop employees at Respondent' s Milwaukee plant, excluding supervisors, constitutes an appropriate unit, without passing upon the alleged supervisory status of Don Perry and John Lang The record shows that Perry and Lang, who are classified as working foremen, regularly direct some of the work of, and make some of the work assignments to, employees under them , and in the absence of Eppler and the plant superintendent , they make all of the work assignments to these employees Perry and Lang also have authority to make recommendations with respect to hiring and discharge , and such recommendations are given weight Accordingly, as urged by the General Counsel, we find that Perry and Lang are supervisors, and we exclude them from the unit. G Midwest Piping f Supply Co., Inc., 63 NLRB 1060, where the Board enunciated the doctrine that an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize one of these unions until its right to be recognized has been finally determined under the special procedures provided in the Act See also Novak Logging Company, 119 NLRB 1573, and The Wheland Company, 120 NLRB 814 , where the Midwest Piping doctrine was recently reaffirmed. 7 We find no merit in Respondent's contention that certain testimony of Buth indicates that he still considered himself as such a "chairman " between 1951 and 1958. When read in context , it is clear that Buth was simply describing his UAW status prior to 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Majerus, a UAW International representative, testified that there was no record of any correspondence between the UAW and Respond- ent between January 1951 and mid-September 1958. Moreover, there is the following additional evidence in the record: (1) There is docu- mentary evidence that in 1950 the 1949 contract was terminated by virtue of an appropriate 60-day notice of modification given by the UAW, and that pursuant thereto the parties negotiated for but reached no new agreement, and thereafter there were no further negotiations by the UAW; (2) Respondent counsel in his testimony admits that there were never any written amendments to the 1949 contract; (3) Respondent President Eppler testified that between 1950 and 1958 Respondent unilaterally determined hours of work, wage increases, and layoffs; (4) Respondent Superintendent Meyer testified that during this period he and Eppler conferred with individual employees on wage raises, with no one else present, that he determined the starting wage rate for a new employee, and that if an employee had a complaint, he and Eppler handled it in any way they saw fit; (5) employee Strutz testified that when he was hired in 1956 he made an individual bargain with Eppler and Meyer on his wage rate, that there was no mention made then or thereafter of any collective- bargaining agreement, that he was never even approached by anyone to join the UAW, and that he handled his grievances individually and not through any steward; and (6) the UAW concedes that there has been no payment of any dues by any employee of Respondent since 1951. In view of the foregoing, it is clear, and we find, that between 1951 and September 1958 the UAW was in a completely defunct status at Respondent's plant.' In view of this defunct status of the UAW, the Midwest Piping doctrine is not applicable as a defense to Respondent's refusal to recognize the Independent, and such refusal was a violation of Sec- tion '8(a) (5).9 In agreement with the Trial Examiner, and for the reasons stated in the Intermediate Report, we also find that the Respondent violated Section 8(a) (2) by giving unlawful assistance and support to the UAW. Moreover, in view of this unlawful assist- ance given to the UAW, the Independent's majority status was not affected by the employees' coerced defection to the UAW.10 In these 1951 as such a "chairman." Similarly, we find no merit in the UAW's contention that the committee which presented the wage demand in August 1958, was the UAW "Shop Committee" and was so recognized by Respondent, in view of the fact that the demand itself clearly indicated that it came from the employees as an informal group acting through a committee which they had just elected , and the further fact that Respondent's response was that it would not bargain with "any damned committee " because it already had a contract with the UAW. e In view of all this evidence which shows complete defunctness of the UAW at Re- spondent's plant, and also in view of its lack of specification or corroboration , we dis- credit Ibrig's testimony that during this period he negotiated with both a UAW shop committee and the UAW on some matters. e Adhesive Products Corporation, 117 NLRB 265 , 283-285. 10 Jasper National Mattreaa Company, 89 NLRB 75. VAPOR BLAST MANUFACTURING COMPANY 79 circumstances, it is also established that effectuation of the policies of the Act requires a bargaining order in favor of the Independent." ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Vapor Blast Manufacturing Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Giving effect to the collective-bargaining agreement entered into on or about September 16,1958, with International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, AFL-CIO, and its Locals 575 and 1092, or to an extension, re- newal, or modification thereof, or any other contract or agreement between it and the said labor organizations which may now be in force. (b) Recognizing International Union, United Automobile, Air- craft and Agricultural Implement Workers of America, AFL-CIO, and its Locals 575 and 1092, as the representative of any of its em- ployees at its Milwaukee plant for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organizations shall have demonstrated their exclusive majority representative status pursuant to a Board-conducted election among the Respondent's employees. (c) Assisting and contributing support to the above-named or any other labor organization. (d) Discouraging membership in Vapor Blast Independent Shop Worker's Association, or in any other labor organization of its em- ployees, by discriminating in regard to hire or tenure of employment or any term or condition of employment except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (e) Refusing to bargain with Vapor Blast Independent Shop Worker's Association as the exclusive representative of all its shop employees. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Vapor Blast Independent Shop Worker's Association, or any other labor organization, to bargain " Ibid. See also Metropolitan Life Insurance Company, 91 NLRB 473. In further defense of its refusal to recognize the Independent, Respondent also points to the fact that the Independent did not present proof of its majority status. The record shows, however, that Respondent did not ask for such proof or question majority at any time. In any event, Respondent's unfair labor practices to dissipate the Inde- pendent's majority renders any such doubt of majority a bad-faith doubt which may not serve as a defense to its refusal to bargain with the Independent . Joy Silk Mills, Inc. v. N.L.R.B ., 185 F. 2d 732, 741 (C.A., D.C.). go DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as author- ized 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) Upon request, bargain collectively concerning wages, hours, and conditions of employment with Vapor Blast Independent Shop Worker's Association as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Withdraw and withhold all recognition from International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Locals 575 and 1092, as the representative of any of its employees at its Milwaukee plant for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until the said labor organizations shall have demonstrated their exclusive majority representative status pursuant to a Board-conducted election among the said employees. (c) Offer to Albert Strutz, Erwin Strobel, John G. Westphal, Frederick Kaleya, and Edwin Griffa immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled"The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records helpful in analyzing the amount of backpay due and the right to reinstatement under the preceding provisions. (e) Reimburse all employees for moneys illegally exacted from them in the manner and to the extent set forth in the section of the Intermediate Report entitled "The Remedy." (f) Post at its Milwaukee, Wisconsin, plant, copies of the notice attached to the Intermediate Report marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's ia'This notice shall be amended by substituting for 'the words "Pursuant to the Recom- mendations of a Trial Examiner" the words "Pursuant to a Decision and Order " In the event that this Order is enforced, by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." VAPOR BLAST MANUFACTURING COMPANY 81 authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges and amended charges having been filed and served in each of the above- entitled cases; an order consolidating said cases; a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board; and an answer having been filed by the above-named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(1), (2 ), ( 3), and (5) of the National Labor Relations Act, as amended , was held in Milwaukee, Wisconsin, on June 2, 3, 4, and 5, 1959, before the duly designated Trial Examiner. At the hearing all parties, including the UAAAIW, were represented by counsel, were afforded full opportunity to be heard , to examine and cross-examine witnesses, to introduce evidence pertinent to the issues , to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Briefs have been received from the Respondent and General Counsel. At the conclusion of the hearing ruling was reserved upon the Respondent's motion to dismiss the complaint. Disposition of said motion is made by the follow- ing findings, conclusions , and recommendations. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Vapor Blast Manufacturing Company is a Wisconsin corporation having its prin- cipal office and place of business in Milwaukee , Wisconsin, where it is engaged in the manufacture, sale, service, and distribution of liquid honing machines. During the year 1958 the Respondent sold and shipped finished products valued at more than $ 100,000 directly from its plant to customers located outside the State of Wisconsin. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Vapor Blast Independent Shop Worker's Association, and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, are labor organizations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues In September 1958 , occurred the events which, in substance, are contended by General Counsel to have been unfair labor practices by the Respondent: (1) Refus- ing to recognize and bargain with the Independent ; ( 2) discriminatorily discharging five employees ; ( 3) giving unlawful support and assistance to UAAAIW; and (4) engaging in specific and derivative acts of interference, restraint, and coercion of 554461-60-vol. 126-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of rights guaranteed by the Act. The Respondent denies all allegations of such unlawful conduct. As background summary, it appears that all events in issue stemmed from a request made in August by many of the Respondent's shop employees, then totaling about 20, for a wage increase. It is undisputed that the employee leader in this move, Albert Strutz, was cursed by the company president , forcibly ejected from the office, and fired. In a day or two Strutz was reinstated , apparently upon advice of counsel, and a few meetings were thereafter held between management and a committee of employees. The employees formally organized the Independent on September 2 and, as described below, a majority of them authorized it to represent them. An attorney was retained and recognition as bargaining agent demanded. Encompassed within the scope of alleged unfair labor practices are the discharges on September 5 of Strutz and Kaleya, officers of the Independent, and the dismissal of three other employees because they joined in a strike protesting against the discharge of Strutz and Kaleya , as well as the refusal to recognize and deal with the Independent and the prompt recognition of and the signing of a contract with the UAAAIW. Background events will first be considered. B. Events leading up to the formation of the Independent On August 6 the Respondent's employees held a meeting outside the plant. They discussed, drew up, and 18 of them signed a document containing the following text: Due to the high cost of living, we the under signed believe we are entitled a raise. It has been four years since the shop has recieved (sic) a blanket in- crease in pay. Please give this your immediate attention. This document was addressed to Clarence Meyer, the plant superintendent. Ap- parently after the meeting and the signing of the above document an addendum was drawn up which contained the following text: A meeting was held by the undersigned employes and was voted for a flat 10% increase . Also the undersigned employees elected the following committee; Albert Strutz Chairman, Lewis Toler and Erwin Strobel to bargin (sic) with you. Any further discussion that you will want will have to be talked over with the full committee. The committee will give you till 12:00 Friday noon August 7, 1958 to contact them, other wise the committee will call a walk out at that time. You are further informed not to talk to any of the employes about this. The committee has full power to make all decisions. The next morning, August 7, the two documents were given to Meyer by Strutz, who asked the superintendent to pass them on to the Respondent's president, A. H. Eppler. Meyer complied with the request. Shortly after noon that day Strutz was summoned to Eppler's office. It is uncontradicted that Eppler shouted at the employee, and accused him of being the instigator of the documents and a trouble- maker. Strutz reminded him that the employees had requested in the documents that management was to contact the whole committee, and that he, himself, was not authorized by the employees to discuss the matter alone. Eppler then declared, according to Strutz' undisputed account, "I am not going to sit down with any damned committee." Strutz then left Eppler's office. It is unrefuted that Eppler followed him, struck him on the shoulder, called him names, and told him to pick up his check, he was fired. Eppler followed him into the plant, swearing at him and pushing him, shouting that he should pick up his tools and "get the hell out of here." At least some of them having witnessed this display of Eppler's, all of the employees in the plant shut down their machines and walked off the job. That afternoon and the next morning they picketed the plant. Counsel Ihrig appeared at the plant the morning of August 8 and said that the Company would talk with the committee. The employee committee, consisting of Strutz, Toler, and Marvin Adams (Strobel having been replaced by Adams) went into the plant. There the demand for an increase was brought up: Ihrig refused the demand, claiming that the Company was losing money and that it already had a contract with the UAW which he said had been in force since 1947. Strutz pro- tested that he had been working for the Company for several years and had never heard of such a document. At the conclusion of this meeting Eppler and the com- mittee signed a document drawn up by Ihrig and containing the following text: We propose that all the employees who were at work Thursday morning, August 7, on Monday, August 11, 1958 at 7:00 a.m. resume their jobs. This will be without prejudice to each of the men. VAPOR BLAST MANUFACTURING COMPANY 83 We will negotiate with the Committee and conclude said negotiations not later than September 15, 1958 at 3:30 p.m. Such negotiations will relate to the August 6 written communication presented on behalf of our shop employees. Whatever adjustments are made by September 15 will be retroactive to the pay period commencing Friday, August 7, 1958. The company will be represented in these negotiations by Mr. Meyer, the Shop Superintendent, and from time to time Mr. Meyer will be assisted by Mr. Ihrig, the company Attorney, who is familiar with basic information. The settle- ment agreement will be reduced to writing. It appears that all employees, including Strutz, returned to work the following Monday, August 11, and that management met with the employee committee there- after on August 12, 19, and 26. Strutz' uncontradicted testimony establishes, and it is found, that these meetings with management met with little but frustration. Ihng declined to produce requested job classification data. After the joint meeting of August 26, employees met outside the plant and formal organization of the In- dependent was begun. C. Refusal to bargain; discriminatory discharges; contract with UAAAIW 1. Formation of the Independent Having previously been asked by Strutz to be present, Attorney Galka attended a meeting of some 15 employees on August 26. They voted to retain him as counsel for the purpose of drawing up bylaws, a constitution, and other formal documents necessary for organization. About the same number of employees again met on September 2, adopted the proposed bylaws and constitution, elected officers, and signed cards authorizing the Independent to serve as their bargaining agent. Strutz was elected as chairman and Frederick Kaleya as secretary-treasurer. At- torney Galka was instructed to send the company notice of the organization's forma- tion and to ask for recognition. 2. The demand and majority representation On September 4 Galka sent the following letter to Eppler: The Vapor Blast Independent Shop Worker's Association, a voluntary as- sociation and independent union of Milwaukee, Wisconsin, has been formed, representing a majority of Shop employees in the Vapor Blast Manufacturing Company Shop. These Shop employees now request that the Vapor Blast In- dependent Shop Worker's Association be given bargaining rights with the Com- pany. Therefore you are requested to recognize this organization as the ex- clusive bargaining agent and representative of all Shop employees. Counsel for the Respondent concedes that this letter was received by the Respond- ent on the morning of September 6. Competent evidence establishes, and it is found, that on September 5, 1958, the day before the Respondent concedes having received the claim of majority and demand for recognition, the Independent had been designated by 14 of the Respondent's shop employees as their bargaining agent, each having signed a card stating: I hereby apply for membership in the Vapor Blast Independent Shop Worker's Association, and I authorize such Association to act as my bargaining representative. In evidence is a copy of the Respondent's payroll record for the pay period ending September 4. It lists 21 employees under the classification heading of "Shop," the unit claimed by the Independent in its above-quoted demand. As noted above, by September 5, 14 of these 21 employees had authorized the Independent to bargain for them. It is clear, and is concluded and found, that on September 5 and there- after the Independent represented a majority of the employees in the unit claimed by the Independent. There is no explanation in the record as to why General Counsel and the Re- spondent stipulated as an appropriate unit a somewhat more complicated one than the simple group claimed by the Independent, except that the language is borrowed from a contract later entered into-which General Counsel claims is an unlawful contract-between the Respondent and the UAAAIW. In any event, even if the language of the stipulated unit be accepted, since it specifically excludes "laboratory and engineering department employees" and the payroll list contains the names of 3 "Lab" employees, the total number of employees in all other categories is 26, and 14 is a majority of 26. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does it appear necessary here to determine (1) the precise supervisory capacity of 2 employees listed among the 21 "Shop" employees: Perry and Lang, who, Gen- eral Counsel claims, were and are supervisors within the meaning of the Act; or (2) whether or not 2 "shed" and 2 "farm" employees should be specifically excluded, as General Counsel claims. As noted, even if all such employees be included, the majority status is not affected. In summary, the Trial Examiner concludes and finds that an appropriate unit for collective bargaining is that claimed by the Independent: all shop employees of the Respondent at its Milwaukee plant, excluding, of course, as required by the Act, supervisors within the meaning of the Act. It is further concluded and found that on September 5, 1958, the independent was the exclusive representative for purposes of collective bargaining of all employees in that appropriate unit. 3. Discharge of Strutz and Kaleya The testimony of Strutz is unrefuted to the effect that on September 2, during the day and before the formal organization of the Independent that evening, the com- mittee of employees which he headed held its final meeting with management, and that when he reminded Counsel Ihrig that the letter of August 8, above quoted, in- dicated that a written agreement would be obtained by September 15, Ihrig told him flatly that there would be no contract-and that the committee would get "nothing." Strutz thereupon moved for immediate adjournment, and the Independent formally came into being. It is likewise undisputed that on September 3, the day after the first Independent meeting, employee Lewis Toler was interrogated at length and in detail by Super- intendent Meyer regarding events at the meeting. Toler informed Meyer that Strutz and Kaleya had been elected officers of the Independent. Finally, it is also uncontradicted that on September 5, Eppler told Toler that he was going to fire both Strutz and Kaleya for engaging in union activities during working hours. Strutz and Kaleya were, in fact, dismissed summarily by Superintendent Meyer at the close of the workday on September 5, both being told that they were not needed any longer and each being given a letter signed by Eppler starting that his "employ- ment is hereby terminated as of 3:30 p.m. September 5, 1958," with no reason given therefor. In view of undisputed testimony which establishes beyond question (1) that Strutz was cursed, pushed around, and fired by Eppler in August for submitting to him the employees' demand for an increase-plainly concerted activities of the pro- tected variety; (2) that management held resentment toward Strutz and his committee as manifested by Ihrig's blunt statement on September 2 that the committee would get "nothing"; (3) that on September 3, through interrogation of employee Toler by Superintendent Meyer, management learned of the formation of the Independent and the election to the chief offices of Strutz and Kaleya; and (4) that on the very day of the discharges Eppler told Toler he was going to fire the two employees for union activities; it appears hardly necessary to look beyond such uncontroverted facts for the motive prompting the dismissals. And the number and nature of the several reasons given for such discharges by various management representatives not only casts full shadow upon the Respond- ent's general claim of legal cause but in effect places in clearer light and perspective facts adduced by General Counsel which lead inescapably to the conclusion that the dismissals were discriminatory and in violation of the Act. This is so for the follow- ing reasons: 1. In a "statement of facts" submitted by Counsel Ihrig to the Regional Office on November 4, 1958, the claim is made that Strutz had been discharged on Sep- tember 5 because: (a) "the employer's belief" that on that and the preceding day he had engaged in "union activities" on company property during working hours; (b) the employer feared that Strutz' "instability" was such that if "crossed in his desires and intentions" he would damage company property; (c) the employer doubted Strutz' "sincerity, honesty, reliability, trustworthiness, dependability and common sense"; (d) the employer believed that Strutz "inspired a shop-wide wage raise movement on August 6, 1958 in bad faith"; (e) the employer had "serious concern" between January 1956 and August 1958 about certain personal problems of Strutz which the employer had not had knowledge of when hiring him; (f) the employer believed Strutz was "disrupting the lines of authority" and "the regular lines of communication"; (g) that Strutz had the least seniority in his department; and (h) that on August 7 Strutz was "insubordinate" to Eppler by walking out of his office. The same "statement of facts" claims that Kaleya was fired for "union VAPOR BLAST MANUFACTURING COMPANY 85 activity during working hours on September 4 and 5," and because he had been on "work probation" since the "summer of 1958 when he kicked a fellow employee." 2. In an affidavit signed November 20, 1958, Eppler adopted the reasons in the above-quoted statement and added, to the reasons for discharging Strutz: (a) He used company material without a work order ; (b) he bypassed the superintendent and appointed himself working foreman; (c) "because he continually wanted me to discharge the older men"; (d) because he "was unfairly partial to some employees and unfairly would not work with others"; (e) because he threatened employees; and (f) because he (Eppler ) had "lost confidence" in the employee's judgment and "believed he was prompted by irresponsible promptings from his special personality which we did not know of when he was hired ." And as to the reasons for dis- charging Kaleya, in the affidavit Eppler adopted the reasons quoted in the paragraph above, and added that he "feared that when he had tipped over a lift-truck that he had a black-out and that his health incapacitated him from working safely with others on the Shop Assembly floor." 3. Despite this amazing array of claims previously made to the Regional Director as to reasons for dismissing Strutz and Kaleya, Superintendent Meyer , as the one management witness to testify that he dismissed both employees, said that each was "discharged for economic reasons" and "for lack of work." Meyer proffered no other reason than this for the dismissals , and to buttress his claim said that for "five or six months" we "were going in arrears every month" and "it finally got to a point where we couldn't meet our payroll any more." He further said for some time before the discharges "we created all kinds of non-productive work to keep our employees employed 40 hours a week." The reasonable question arises, when appraising the claims of Ihrig, Eppler, and Meyer, as to why, if Strutz and Kaleya were as unde- sirable as counsel and the president would have it believed, Meyer should have kept them on a payroll and at "all kinds of non-productive work" for so long a period. The two positions are mutually inconsistent. 4. As to the "economic" reasons advanced by Meyer, they are not only lacking of credible support in company records but are effectively refuted by them. As General Counsel points out in his brief, the Respondent 's sales in September increased by about 50 percent over August. Further, Meyer admitted on cross-examination that the vacancies created by the dismissal of both Kaleya and Strutz were thereafter filled, and that after September 5 "on several " Saturdays the shop employees were required to work overtime hours. In short, the Trial Examiner is convinced and finds that there is no merit to any of the many reasons advanced by the Respondent for its discharge of Strutz and Kaleya, and that both were discriminatorily dismissed to discourage further activity on behalf of the Independent, and that such discrimination interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. Further, it is specifically concluded and found that Meyer's interrogation of employee Toler on September 3 as to what had occurred at the Independent meeting the night before , in view of surrounding circumstances constituted interference, restraint, and coercion.1 4. The strike and discharge of Griffa, Westphal, and Strobel Strutz and Kaleya were discharged at the close of the working day on Friday, September 5. As employees came to work the morning of Monday, September 8, they were informed of the discharges and many of them decided to strike in protest against the dismissals. Pickets were at the plant for the next 2 or 3 days. During that period employees Edwin Griffa , Erwin Strobel, and John G. Westphal partici- pated in the picketing activities. On Wednesday, September 10, Attorneys Galka and Miller for the Independent met with Counsel Ihrig for the Respondent . Request was made for the return to work of all strikers . Ihrig declared that neither Strutz nor Kaleya would be 1 The Trial Examiner is not convinced that the complaint 's allegation as to an incident of "surveillance" is supported by the record , even if it were to be found that one Don Perry, listed as a shop employee, is actually a supervisor within the meaning of the Act. Perry, according to witness Strutz, was seen by the latter in the "tavern portion of Club 35" where the meeting was to be held on September 2-and Perry merely asked him when the meeting "was going to get going " Strutz told him they were waiting for somebody and said he would "notify him when the meeting was going to get started." It seems plain that Strutz did not consider either himself or the meeting to be under surveillance 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstated under any circumstances, and declined to take back Grifla, Strobel, and Westphal then but indicated that they might come back later. None of the three, however, was recalled. Although the Respondent offered no testimony as to its reason for refusing rein- statement to the three above-named employees, when return to work was offered on September 10, in Eppler's affidavit above referred to, he stated that each was considered "terminated" as of September 8: Because he did not come to work at 7:00 a.m. on September 8 without being excused; because he participated in an unauthorized picket-line on that day in an effort to stop deliveries to the employer, and shipments by the employer of its product machinery. The Trial Examiner considers Eppler's above-quoted statement, made in an affi- davit, as an admissible admission against interest. It is therefore concluded and found that Griffa, Strobel, and Westphal were discharged on September 10, 1958, and thereafter refused reinstatement, because they engaged in concerted, protected activities, and to discourage activities on behalf of the Independent (the employer well knowing that the strike was in protest against the discriminatory discharge of the Independent officers, Strutz and Kaleya). It is further concluded that the three discharges interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. 5. The overt refusal to recognize the Independent It is undisputed that the Respondent ignored and failed to answer the Independent's written request for recognition which its counsel concedes was received on Sep- tember 6. It is likewise undisputed that such refusal was upon advice of its counsel. At the meeting of the attorneys on September 10, at which reinstatement was denied employees as above found, Attorney Miller referred to this unanswered letter. Counsel Ihrig, it is undisputed, informed Miller that he had advised Eppler "to ignore it." Ihrig claimed that the Company was still under contract with the UAW, contending that an agreement dated in 1947 was still in effect. Having previously found that the Independent was the exclusive bargaining rep- resentative of all employees in an appropriate unit on September 5, 1958, and thereafter, the Trial Examiner now concludes and finds that the Respondent refused to bargain with the Independent, as required by law, on September 6, 1958, and all times thereafter. 6. Contract with UAAAIW As its defense for refusing to recognize the Independent the Respondent relies mainly upon a claim that at the time of the Independent's demand it was already under contract with Local 575, UAW-CIO, which had been entered into on Sep- tember 9, 1949. Although the testimony regarding this document and relevant dealings is somewhat confused it appears that sometime in 1947 or 1948 there were negotiations between the Respondent and Local 575, and that in 1949 a formal document was signed. That document contains the following "termination" clause: This agreement shall remain in full force and effect from September 1, 1949 to September 1, 1950, inclusive, and from year to year thereafter unless either party gives notice in writing to the other party, at least sixty (60) days prior to the termination date, of it's (sic) desire to modify or terminate. Because there seems to have been no formal notification of a "desire" to terminate this ancient agreement, it appears to be the Respondent's counsel's contention that it nevertheless continued to remain in full force and effect. In passing, the Trial Examiner notes that counsel for Local 575 makes no such claim. Uncontradicted facts plainly establish, however, that there had actually been no relationship, contractual or otherwise, between the Respondent and Local 575 after 1950, nor did that organization have any members in the plant after that year or 1951. It is the testimony of B. Buth, chairman of the Local 575 committee which signed the 1949 agreement, that he had been a member of that organization until "somewhere that year, 1950, 1951 . . . until it folded." Raymond Majerus, an International representative of UAW, testified that he could find no record of any correspondence between the parties between January 1951 and mid-September 1958. Such facts require the conclusion, here made by the Trial Examiner, that there is no merit to the Respondent's contention that a contractual relationship between VAPOR BLAST MANUFACTURING COMPANY 87 it and Local 575 was in existence at the time the Independent made its demand for recognition. The mere failure of a body formally to announce its decease, before or after the event, does not alter the fact or nature of the cadaver. The testimony of Lewis Toler, also an employee member of the committee which signed the 1949 agreement, makes it clear that on or about September 9, 1958, after he had advised Eppler to ignore the Independent's demand for recognition, Counsel 1hrig attempted to revive the corpse. He instructed Toler, Buth, and another member of the old committee to go to Howard Pellant, a UAW representa- tive now a member of the Wisconsin legislature, to see whether the old contract "was valid or not." They went. The substance of Toler's account of this visit is to the effect that Pellant made it clear that he would have nothing to do with this ancient and expired relationship, but informed the employees that if they got new membership cards filled out, he "would take it from there." In fairness to Pellant, it should be noted here that there is no evidence in the record which would permit even an inference that Pellant, when making this suggestion, was aware that the Independent already represented a majority of the employees and had been refused recognition. After this visit, on September 16 and 17, a majority of the employees signed cards designating UAAAIW as their bargaining agent, and thereafter, sometime in Novem- ber, a contract was entered into between the Respondent and Local 1092, UAAAIW, granting this labor organization exclusive bargaining rights and providing member- ship in it as a requirement of employment. The same contract also provides for the deduction of union "dues, fines and assessments" from the employees' pay. The effective date of such contract is September 16, 1958. In substance, it is General Counsel's position that this contract is unlawful for the reason of the Respondent's illegal assistance and support of the UAAAIW. The Trial Examiner finds the following items of such assistance and support: 1. The unlawful discharge of the two Independent officers and the three who struck in protest. 2. The refusal to recognize the Independent on September 6 and thereafter. 3. Counsel Ihrig's instructions to employees to see Pellant, the UAW representative. 4. Eppler's promise that he would recognize the CIO, made to one of the com- mittee members (according to the undisputed testimony of Toler) even before the visit had been made to Pellant. 5. The prompt recognition of UAAAIW and the signing of a contract containing a union-shop provision and requirement for deduction of union dues; such require- ment of membership not being authorized by Section 8(a) (3) of the Act The Trial Examiner therefore concludes and finds that by the above-described conduct the Respondent gave illegal assistance and support to the UAAAIW and its two locals for the purpose of discouraging membership in and activity on behalf of the Independent, and entered into an unlawful agreement requiring membership in UAAAIW for the purpose of encouraging membership in said organization. Such conduct interfered with, restrained , and coerced employees in the exercise of their right of freedom of choice in selecting their bargaining representative, a right guaranteed by the Act .2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. It will be recommended that the Respondent offer immediate and full reinstate- ment to employees Albert Strutz, Frederick Kaleya, Erwin Strobel, John G. Westphal, and Edwin Griffa, to their former or substantially equivalent positions, without 2 See Summers Fertilizer Company, Inc, 117 NLRB 243, and Adhesive Products Corporation, 117 NLRB 265. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to their seniority or other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination to the date of the offer of reinstatement , less his net earnings during such period, in accordance with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, , 8 NLRB 440. It will be further recommended that the Respondent, upon request, make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts due as backpay. It has been found that the Respondent has illegally assisted and supported Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and has entered into and maintained an illegal contract with said International and its Local 1092, pursuant to which fees and dues are checked off by the Respondent and paid over to said labor organizations . It will therefore be recommended that the Respondent ( 1) cease and desist from giving effect to said contract or to any extension, renewal, or modification thereof, or any other contract or agreement between said Respondent and said labor organizations which may now be in force; and (2) reimburse its employees for any dues, fees, assessments, or other moneys which since September 1.6, 1958, have been unlawfully exacted from them as a condition of retaining employment with the Respondent. It will also be recommended that the Respondent withdraw and withhold all recognition from International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Locals 575 and 1092, as the representative of any of its shop employees for the purpose of dealing with them concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment , unless and until said labor organizations shall have demonstrated their exclusive majority representative status pursuant to a Board- conducted election among said employees. It will also be recommended that , upon request, the Respondent bargain collec- tively with Vapor Blast Independent Shop Worker's Association, in good faith and as required by the Act, as the exclusive representative of its shop employees in the above-found appropriate unit. Finally, it will be recommended that the Respondent cease and desist from in any other manner interfering with, restraining , or coercing employees in the exercise of the right to self-organization, to form labor organizations , to join or assist Independent or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Vapor Blast Independent Shop Worker's Association; and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO , and its Locals 575 and 1092 , are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Albert Strutz, Frederick Kaleya, Erwin Strobel, John G. Westphal, and Edwin Griffa, thereby discouraging membership in a labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. All shop employees employed by the Respondent at its Milwaukee plant, excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 8(b) of the Act. 4. At all times since September 5, 1958, the Vapor Blast Independent Shop Worker's Association has been and now is the exclusive bargaining representative of all employees in the above-described unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment, by virtue of Section 9(a) of the Act. 5. By refusing, on September 6, 1958 , and at all times thereafter , to bargain collectively with the aforesaid labor organization , the Respondent has engaged in VAPOR BLAST MANUFACTURING COMPANY 89 and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By contributing support and assistance to International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 7. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) 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.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Vapor Blast Independent Shop Worker's Association, or in any other labor organization, by discriminating in regard to the hire, tenure, or other conditions of employment of any employee. WE WILL NOT give effect to any and all agreements and contracts, supple- ments thereto or modifications thereof, or any superseding contract with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Locals 575 and 1092. WE WILL NOT contribute financial or other support to the labor organizations named immediately above. WE WILL withdraw and withhold recognition from International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO, and its Locals 575 and 1092, or any successor thereto, unless and until they shall have demonstrated exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL, upon request, bargain collectively with Vapor Blast Independent Shop Worker's Association as the exclusive representative of all our employees in the unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All shop employees at our Milwaukee plant, excluding supervisors as defined in the Act. WE WILL refund to all our employees and former employees from whose wages we have deducted funds, for transmittal to the aforesaid UAAAIW, and its said locals, the amounts of such deductions, to the end that each employee shall be reimbursed for such moneys so deducted. WE WILL offer to Albert Strutz, Erwin Strobel, John G. Westphal, Frederick Kaleya, and Edwin Griffa, immediate reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as the result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their statutory rights. All our employees are free to become, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8(a)(3) of the National Labor Relations Act. VAPOR BLAST 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.