American Scale Company

In the Matter of AMERICAN SCALE COMPANY and INTERNATIONAL MOLDERS UNION OF NORTH AMERICA, LOCAL 149 Case No. C-701.-Decided August 23, 1939 Scales, Jackscrew, and Hardware Manufacturing Industry-Interference, Restraint, and Coercion : threat to close and dismantle plant if employees go on strike ; sponsoring of employee 's project to destroy union ; sponsoring and recog- nition of company-dominated union-Company-Dominated Union: domination of and interference with formation and administration ; supervisors present at or- ganization meeting ; use of company time and property ; character of constitu- tion and by-laws, unfavorable to employee interests ; disestablished, as agency for collective bargaining-Contract: with organization found to be company dominated, void ; employer ordered to cease giving effect to-Discrimination: charges of, dismissed. Mr. Daniel J. Leary and Mr. Paul F. Broderick, for the Board. Cooper, Neel, Kemp cQ Sutherland, by Mr. Ellison A. Neel and Mr. John W. Hoffman, Jr., of Kansas City, Mo., for the respondent. Mr. Ray L. Shubert, of Harrisonville, Mo., for the Association. Miss Edna Loeb, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Molders Union of North America, Local 149, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Mis- souri), issued its complaint, dated April 16, 1938, against American Scale Company, Pleasant Hill, Missouri, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent, the Union, and Employees' Protective and Col- lective Bargaining Association, herein called the Association, a labor organization allegedly dominated and supported by the respondent. 14 N. L. R. B., No. 76. 971 972 DEOISIONS OF NATIONAL LABOR RELATIONS BOARD In respect to the unfair labor practices the complaint alleged in sub- stance : (1) that the respondent on or about June 14, 1937, dominated and interfered with the formation of the Association, and thereafter dominated and interfered with its administration and contributed financial and other support to it; (2) that the respondent entered into a contract with the Association; (3) that the respondent on or about June 17, 1937, discharged Leslie Johnson and thereafter re- fused to reinstate him because he had joined and assisted the Union; and (4) that the respondent by these and other acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 21, 1938, the respondent filed with the Board a motion to make the complaint more definite and certain. At the hearing the respondent modified this motion in several respects, and the motion as modified was denied by the Trial Examiner. On April 22, 1938, the respondent filed its answer in which it admitted the alle- gations of the complaint regarding the nature of its business but denied that it had engaged in the unfair labor practices alleged in the complaint. On April 28, 1938, the respondent filed an applica- tion for a subpoena daces tecum directing the Regional Director to be present at the hearing upon the complaint and directing him to produce at that time the original charge filed by the Union. The application was denied but the charge was made available to counsel for the respondent at the hearing. On April 29, 1938, the Association filed a motion for leave to intervene in the proceeding and in support of its motion filed an answer in which it denied that it had been dominated or supported by the respondent. The Regional Director issued an order, dated April 29, 1938, granting the Association leave to intervene "to such extent as its interests may appear." Pursuant to notice, a hearing was held at Pleasant Hill, Mis- souri, from May 2 to 5, 1938, before Waldo C. Holden, the Trial Examiner duly designated by the Board. The Board, the respond- ent, and the Association were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the hearing counsel for the Board moved that the complaint be amended to conform to the proof. The motion was granted by the Trial Examiner. The Board has reviewed the rulings made by the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. AMERICAN SCALE COMPANY 973 On June 4, 1938, the Trial Examiner filed his Intermediate Re- port in which he found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint, and recommended that the respondent cease and desist from engag- ing therein, that it reinstate Leslie Johnson with back pay, and that it disaffirm its contract with the Association and disestablish the said Association. Thereafter the respondent and the Associa- tion filed exceptions to the Intermediate Report and filed briefs in support of their exceptions. Pursuant to notice duly served on all the parties, a hearing was held before the Board on March 30, 1939, at Washington, D. C., for the purpose of oral argument. The respondent appeared by counsel and participated in the oral argument. The Board has considered the briefs and exceptions of the respondent and of the Association to the Intermediate Report and, to the extent that they are inconsistent with our findings, con- clusion, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT . The respondent is a Missouri copartnership engaged in the manu- facture of scales, jackscrews, and other hardware specialties, with its general office and factory at Pleasant Hill, Missouri. The part- ners are William S. Swift, Morton R. Swift, and John E. Rieth. The raw materials purchased by the respondent are pig iron, struc- tural steel, rolled steel, scrap iron, and coke. Almost 100 per cent of these raw materials are shipped to the respondent's factory from points outside Missouri. Approximately 95 per cent of the re- spondent's finished products are shipped to points outside Missouri. In 1937 the respondent's total sales amounted to approximately $170,000. These sales are made chiefly through a sales office which the respondent maintains in Kansas City, Missouri. H. THE ORGANIZATIONS INVOLVED International Molders Union of North America, Local 149, is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of the respondent. Employees' Protective and Collective Bargaining Association is a labor organization admitting to membership employees of the re- spondent at its Pleasant Hill plant, "who are not members of .. or affiliated in any way with any other labor union ..." 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the Association; the contract; interference, restraint, and coercion Prior to June 1937 there was no organization of any kind among the respondent's employees. On June 7, 1937, about 40 of the re- spondent's 60 employees attended an open meeting at the home of George Dinges, an employee, to discuss the formation of the Union. A second meeting was held on June 14 at the home of Jim Watson, another employee. On this occasion, a union charter was received and the 22 workers present were initiated as members of the Union. During the week following the first union meeting, Charles Car- lisle, W. A. Mitchell, Floyd Shuert, V. S. Turney, and other em- ployees of the respondent discussed the possibility of forming a local association of their own over which they could have "absolute con- trol." They proposed to launch the new organization not for the purpose of ameliorating working conditions, which they claimed were satisfactory, but for the several purposes of resisting the encroach= ments of the Union, "keeping their money at home," and insuring against strikes and outside interference. The testimony of Carlisle, Mitchell, and Turney reveals that they were opposed to labor organi- zation, "wanted to have as little as possible to do with Unions," and "didn't'want to belong to any Union ..." The employment status of Turney calls for particular comment in the light of his early sponsorship of this plan of organization and his subsequent membership in and activities on behalf of the Asso- ciation. He is the respondent's sole clerical employee at the plant and also serves as timekeeper and shipping and billing clerk. Al- though he is not a supervisory employee, in his several capacities he performs a number of confidential and responsible duties, which include writing all letters which go out of the plant, writing requisi- tions for raw materials, keeping the pay-roll and personnel records, making out the workers' pay checks, packing and weighing ship- ments, and drawing bills of lading. Unlike the ordinary production workers who earn hourly wages, he is paid a salary. He enjoys certain special privileges such as sharing an office with Morton Swift, having a key to the plant office, and not having to punch the time clock. The nature of his position sets him apart from the other workers and closely identifies him with the management rather than with the employees. His active participation in the Association from its very inception was calculated to give the employees the impression that the Association was a management-sponsored project, an impression which was undoubtedly correct in view of the events which followed. AMERICAN SCALE COMPANY 975 On June 14 and 15, Carlisle, Mitchell, and Shuert circulated peti- tions in the plant, solicited the signatures of employees interested in the formation of the new union, and asked them to attend a mass meeting to be held on the evening of June 15. The testimony re- garding the petitions is so confused and contradictory that- we are unable to determine their author or the manner in which they were prepared. Although Shuert passed his petition around during as well as out- side working hours, neither he nor the other two solicitors incurred any reprimands for this use of the respondent's time and property. According to Turney, the explanation for their incurring no disci- plinary measures was that their activities were conducted without the knowledge of the respondent's supervisory employees. Carlisle admitted, however, that Frank Davenport, his supervisor and fore- man of the foundry, observed his activities among his fellow foundry workers. Carlisle permitted Davenport to examine the petition, and the latter made no comment. Morton Swift, a member of the re- spondent partnership, testified that the respondent had not to his knowledge permitted any union solicitation during working hours. Morton Swift is Shuert's immediate supervisor, spends most of his time in the shop, and keeps in contact with Shuert's work and where- abouts. It is clear that Shuert passed his copy of the petition among the employees openly during working hours and discussed it with them while they were on duty. In view of Swift's supervision of Shu- ert and of testimony that Swift was actually in the shop at a time when Shuert was circulating the petition, we are unable to believe that Shuert's unconcealed activities escaped Swift's attention. We find that the respondent was aware of the organizational activities in progress and further find that its tacit acquiescence in this use of its time and property to further the progress of the proposed Associa- tion amounted to encouragement of that organization. There is evidence that Swift gave still further impetus to the Asso- ciation's growth. Francis Young, an employee, testified that Shuert approached him while he was working and asked- if he wanted to sign a paper; that Shuert stated that its purpose was to organize "a Company Union to fight the A. F. of L."; that when Young said he did not want to sign, Shuert stated, "Mr. Swift wants your name on here"; and that when Young asked him how he knew this Shuert replied that "he told Mort [Morton Swift] if he would give him a little time he could bust up the A. F. of L., and Mort told him to take all the time he wanted . . ." Shuert did not deny solicit- ing Young's signature or telling him that Swift desired him to sign. Counsel for the respondent called Shuert as a witness, however, and by leading questions elicited denials of the other statements attrib- 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uted to him. Because of the contradictory character of a great deal of Shuert's testimony and because of the manner in which his partial denials were placed in his mouth by the respondent's counsel, we find Young's straightforward testimony more credible than that of Shu- ert. Swift did not deny having spoken with Shuert as testified and in the light of all the evidence we find that he authorized the latter to combat the Union in the manner indicated above. On June 14, during working hours, Foreman Davenport approached J. F. Watson ,l an employee who had attended the first meeting of the Union, and asked him when the rumored strike was going to take place. Although Watson disclaimed knowledge of any impending strike, Davenport warned him that if the men went out on strike "the plant would be shut down and the machinery sold off." Watson cautioned Davenport that such a statement would "go against the company, if they used that for threats or intimidation" but the latter rejoined that "that was no threat, it was just a fact." On the fol- lowing day Watson heard Davenport give a similar admonition to a group of employees at the plant.2 Such warnings, given at that time to a union adherent and to other employees, were clearly calcu- lated to spur the growth of the Association, which proposed to outlaw strikes, and served as well to engender in the employees the fear that further collective activities through or in behalf of the Union would result in their loss of employment. On the evening of June 15 a large group of the respondent's em- ployees attended a mass meeting held at Township Hall 8 in Pleasant Hill for the purpose of discussing the proposed association. Daven- port and Harry Swift were among those present. The latter, a brother of William and Morton Swift, members of the respondent partnership, is employed in the plant as a pattern maker. He is also assistant superintendent and in Morton Swift's absence has complete charge of the plant's operations and signs employee pay checks. He is a salaried employee like Turney and unlike the production workers. Shubert, counsel for the Association, referred to him at the hearing as a supervisory employee, and we find that he is one. Harry Swift also holds public office as mayor of the town of Pleasant Hill. The employees at the meeting definitely decided to form the Asso- ciation and nominated Harry Swift and Davenport for offices in it. Both men declined the nominations and Davenport made a speech to 'Apparently the individual designated as Jim Watson , at whose home the second meet- ing of the Union was held. 2 Davenport was not called as a witness at the hearing and the statements attributed to him stand uncontroverted in the record. 8 The record does not show who arranged for the use of the hall . Mitchell, one of the leading sponsors of the Association, testified that he did not know who so arranged or paid the rental for it, if any. AMERICAN SCALE COMPANY 977 the effect that he could not become a member because of his super- visory position. During the course of the evening 33 individuals :signed their names to a sheet of paper as a token of allegiance to the proposed Association. Carlisle testified without contradiction, and we find, that Davenport was one of the signers. Carlisle further testified that this made Davenport a "member there at that mass meeting . . . a member that was in favor of this [organization] but did not make him a member of this Association..' According to Shubert, however, the signatories were considered Association mem- bers. A committee was appointed to draft the Association's consti- tution and bylaws, and temporary officers were elected, one of whom was Turney. At the Association's request Turney copied from the respondent's pay roll and furnished to the Association the names of all the respondent's employees. Contrary to the respondent's contention, we cannot consider in- nocuous the participation of Davenport and Swift at the meeting. Because of their supervisory positions and also because of Swift's family relationship and public office, the effect upon the employees of their presence and conduct must have been substantial, coming at a time when the Association was just being organized. Their at- tendance was clearly designed to lend it prestige and to place upon it the stamp of the respondent's approval. Shortly after the mass meeting of June 15 the constitution com- mittee retained as its counsel Ray L. Shubert, former city attorney or prosecutor of Pleasant Hill. The committee advised Shubert that a majority of the employees desired to form the Association and asked him to prepare articles of association and bylaws. Mitchell testified that the documents were "supposed to be dressed up in ac- cordance with the Wagner Act," so that they would be "within the law." On June 18 a second Association meeting was held at Township Hall. The employees present received and adopted the documents which Shubert had prepared, and selected permanent officers, among whom were Carlisle as president, and Turney as secretary.4 The contents of the articles and bylaws adopted by the Association are of such a nature as to warrant detailed scrutiny. The articles are prepared in the form of an agreement into which each employee must enter, as a prerequisite for membership, by signing the docu- ment and solemnly swearing, before an officer empowered to ad- minister the oath, to abide by its provisions. Pursuant to this pro- 'The testimony is confused regarding the exact nature of the documents submitted at this meeting and the method by which the board of directors was selected. We are unable to clarify these matters by reference to the Association 's minutes because counsel for the Association refused to introduce the minutes into evidence. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vision 39 sworn signatures are affixed to the instrument. Member- ship is limited to employees who do not belong to any other labor organization and the articles state that the Association and its mem- bers may not affiliate with any labor organization "attempting .. . `organization' or intimidation of the employees ..." Membership is further limited to individuals who are currently employed by the respondent and ceases upon termination of employment. Among the Association's stated purposes is the protection of its members from violence and intimidation by the respondent or "any other labor or protective association" and the prevention of "lawlessness, violence, untruthful and baseless propaganda, campaigns of villification [sic] and abuse, and all similar mob-like forms of attemption [sic] .. . to assert and enforce demands against ...." the respondent in regard to any conditions of employment. Moreover, strikes of any kind are outlawed by several covenants embodied in the articles. Such pro- visions as these are not usually found in the constitutions of genuine labor organizations and certain of them serve to render the Associa- tion and its members powerless to enforce any demands against the respondent regarding any employment problems or grievances, no matter how vital to the workers. The articles emphasize by repetition that the employees are organ- izing in a "voluntary self-organization which is and shall always be free from restraint, coercion, intimidation, domination, interference, influence or control" of the respondent. Such assertions, also uncom- mon in the organic documents of bona fide labor organizations, were undoubtedly inserted in an attempt to cloak the Association with an appearance of independence and legality. The provisions or cove- nants in the articles regarding negotiation with the respondent, which we shall set forth presently, are difficult to understand. Neither Shubert nor any one of the Association officers who testified at the hearing was able to explain or reconcile them. It is clear, however, that these provisions give Association members little or no voice in the conduct of their affairs, although one of the alleged pur- poses of organization was the retention of "absolute control" of such affairs. Apparently the only part which ordinary Association mem- bers have in the Association's administration is that of voting annu- ally in the election of a "negotiator," who may irrevocably bind them by his acts "in the event it becomes necessary for any reason to bargain" 6 with the respondent, and in the election of a president and directors, who may represent the membership "in negotiating major controversies and in presenting suggestions e to the manage- ment." The bylaws fix only one regular meeting, the annual meet- Italics supplied. e Italics supplied. AMERICAN SCALE COMPANY 979 ing for election of officers. The absence of any provision for regular meetings at frequent intervals and the consequent absence of any opportunity for the interchange of ideas or the formulation of poli- cies by the employees for united presentation to the respondent, together with the articles set out above, preclude that form of inde- pendent action which is commonly associated with a free and independent labor organization. The abundance of such provisions in the Association's articles might be regarded as merely a natural reflection of the strong anti union sentiments of the employees who assumed the initiative in forming the organization. We are satisfied, however, that the articles and bylaws show more than that. The unobstructed use of the respondent's time and property for circulation of the petition, Morton Swift's sponsorship of Shuert's project to "bust up the A. F. of L.," Davenport's warning that the plant would be dismantled in the event of any strike, and the presence of Davenport and Harry Swift at the organizational meeting of the Association, all were calculated to show the employees that the respondent was opposed to outside unions and was highly favorable to the movement against the A. F. of L. Under such circumstances, it is clear that the anti-union tenor of the Association's articles and bylaws, and the feeble organ- izational structure provided for therein, were in large part a response to the indicated desires of the respondent, and we so find. Shortly after the June 18 meeting Shubert was asked by the Association to prepare a proposed bargaining agreement for presen- tation to the respondent. His instructions regarding the contents of the agreement were merely that the employees were satisfied with existing working conditions.7 Shubert prepared an instrument and left it at the plant sometime in June in an envelope addressed to William Swift. The latter thereafter returned the document to Carlisle; advised him that it had been submitted for approval to the Regional Director of the Board ; informed him that the Regional Director found it "not specific" or "too indefinite"; and instructed him to have the instrument amended accordingly. The Association was unable to introduce this proposed agreement into evidence but did introduce a copy of an executed agreement dated September 24, 1937, and signed by the members of the respondent partnership and by 39 Association members. This contract provides for recognition of the Association "as the agency for collectively dealing" with' the respondent; reserves to the respondent the power to hire, discharge, and discipline its employees; provides that existing conditions of 7 Carlisle testified, "The only instructions was to make a contract and present it to the company for their signature." 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment are satisfactory ; and specifies that a negotiator shall act in the Association's behalf in bargaining matters, with a proviso that the Association may be "called in" to adjust differences between it and the respondent which the negotiator has been unable to settle. The testimony of Shubert and of Association and respondent offi- cials with respect to the above contract is so confused and contra- dictory that we find it impossible to determine accurately the circumstances surrounding the execution of the said contract. Neither the respondent nor the Association was able to indicate in what respects this agreement differs from the one submitted to the re- spondent in June, although both contended that the executed instru- ment embodied the earlier agreement with several alterations to make it "more specific." Although dated September 24, the contract was not executed by the respondent until sometime in October. Shubert testified that he did not confer with the respondent prior to the drafting of either agreement but later admitted that William Swift telephoned him prior to September 24 and "wanted to know about the contract . . . and whether or not it met with the approval of the National Labor Relations Board." The Association claimed that on or about September 24 it held a meeting at which its members approved and signed the proposed agreement and directed that it'be submitted to the respondent. Turney, the Association secretary, testified, however, that he recalled no Association meeting in August or September 1937, and stated that the minutes of the Association contained no record of a meeting during that period or of any meeting at which a contract was considered." It appears that the agreement was presented to the respondent on or about October 1 with a letter from Shubert- and was executed sometime thereafter without alteration. In his letter Shubert stated that he had con- ferred with the Regional Director concerning the agreement and had been informed that the Board had no jurisdiction in the matter since no proceedings had been instituted. Shubert further stated in the letter : I believe that you have advised me in the past that you would execute this contract and recognize our association if the labor board did not have any objections. Since there are no objections filed, the matter of recognition, as I understand the situation, is between the employees of the company and the company itself. The majority of the employees of the company belong to the Employees' Protective and Collective Bargaining Associa- tion . . . 8 As noted above, counsel for the Association refused to introduce the minutes into evidence. AMERICAN SCALE COMPANY 981 The execution of the contract with the Association crystallized the respondent's control over its employees and effectively stifled the organizational progress of the Union. The respondent's alacrity in signing the agreement as submitted evinced its eagerness to establish the Association as the representative of its employees on a firm con- tractual basis. We have noted the respondent's apparent impatience to have a contract in effect, shown by Swift's call to Shubert to make certain that the second contract would be presented. Had the re- spondent been dealing with a genuine labor organization instead of with its own creature, it is hardly conceivable that the respondent would have executed an initial agreement granting recognition before it had any conference with the representatives of the organization. None of the Association officers who testified at the hearing had any substantial understanding of the contract's provisions. More- over, the respondent clearly attached little significance to the agree- ment other than as a means of blocking the Union's progress. By his own admission, Morton Swift did not have a copy of the instru- ment at the plant and had no conception of the respondent's duties thereunder. Until his attention was called to his signature upon the instrument, Swift even claimed that _he had never read the agree- ment or discussed it with his partners. Such testimony does not serve to support the contention of the Association and the respond- ent that the agreement was a valid one entered into with a bona fide labor organization. Since the execution of the contract the Association has apparently become completely inactive. It is not shown that any further meet- ings have been held. The testimony reveals that at the time of the hearing the Association's representatives had never met with the respondent regarding any grievances, "suggestions," or "controver- sies" of any kind. It appears that having served its purpose of destroying the Union, the Association became inactive. The evidence as a whole convinces us that the respondent gave the Association its initial impetus and thereafter collaborated with the Association in a design to bar genuine unionization in the plant.° We find that the respondent has dominated and interfered with the formation and administration of Employees' Protective and Col- lective ' Bargaining Association and has contributed support to it; and that it has interfered with, restrained, and coerced its employees Y At the hearing counsel for the Association introduced into evidence affidavits, dated October 15, 1937, and signed by himself and by 38 members of the Association, which affidavits stated that the Association was voluntarily formed by the employees without any interference or coercion by the respondent. In view of the facts in this case, such affidavits do not show that the Association in its inception and administration was free of the respondent's domination and support . Cf. Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the exercise of the rights guaranteed in Section 7 of the Act. The contract described above, having been made with a company-domi- nated labor organization, is illegal and void io B. The allegedly discriminatory discharge of Leslie Johnson The complaint alleges that Leslie Johnson was discharged on or about June 17, 1937, for the reason that he had joined and assisted in the promotion and administration of the Union. The respondent alleges that the reasons for Johnson's dismissal were that he negli- gently broke ,five taps or threading tools "all in one day," and that he was often absent from his work unreasonable and unnecessary lengths of time. Johnson was employed by the respondent in May 193611 and from June 1936 until June 17, 1937, the date of his discharge, operated a tapping machine in an admittedly satisfactory manner.12 He at- tended the first two meetings of the Union and became a union mem- ber on June 14. A third union meeting was held at his house on June 16, the day before his discharge. Before examining the circumstances surrounding the discharge, we shall describe briefly the nature of Johnson's work. The tapping machine is used in the process of manufacturing jackscrews to put threads in the hollow centers of jack bases or castings. A casting is fastened upon a part of the machine known as the sliding table. The table is pushed up to the threading tool or tap, which is fixed above the table in a revolving head. The tap enters the hollow center of the casting and by revolving goes through it cutting threads therein. , The taps generally come in pairs, consisting of a number one and a number two tap. Both taps are run through each casting, but as the number one tap is smaller than the number two tap, it must be run through the casting first. If the process is reversed and the number two tap inserted first, the tap is likely to break. Johnson was classified as a helper to Earl Miller, the respondent's jackscrew maker, but was alone in charge of the actual operation of the tapping machine. During the day of June 17, the day of his discharge, Johnson admittedly broke three taps. He reported each breakage to Miller, who in the first two instances furnished him with new taps. After the second mishap, however, Miller warned John- 10 In National Labor Relations Board v. ,Stackpole Carbon Company, 105 F. (2d) 167, the Circuit Court of Appeals for the Third Circuit sustained the Board's Order invalidating a contract made with a company-dominated union, stating: "It was executed in the very teeth of the Act and with a company-dominated union." n Johnson was first employed by the respondent in 1935. He worked for approximately 2 months and then voluntarily gave up the job. 12 Counsel for the respondent stated at the oral argument that the testimony showed that Johnson did his work "very well" prior to June 17. AMERICAN SCALE COMPANY 983 son that lie would have to "watch out about breaking taps, that Mort [Morton Swift] was liable to give him the devil for it ..." Ac- cording to Miller's uncontradicted testimony, Johnson replied that "he didn't give a damn, he could get along without his salary, what- ever he was drawing." Following the breaking of the third tap, Miller advised Morton Swift that he could thread no more jackscrews "because there had been another tap broken." Swift made no com- ment regarding this information. It must be noted that Miller did not inquire regarding the availability of another tap and he was unable to explain at the hearing why it was necessary to report Johnson's conduct when another tap might have been secured with which to continue Johnson's work. Miller stated that so far as he knew Swift was not aware that more than one tap had been broken. Swift testified, however, that after Miller told him of the broken tap, he went to Johnson's ma- chine and saw on the floor five castings with broken taps in them. Swift claimed that lie picked up one of the castings and saw that the tap had broken because of a "star" lodged in the casting. The center of each casting is out out in another part of the plant, and occa- sionally a "star," a portion of the cutting instrument, is accidentally left within the casting. If the "star" is not removed before the tap is inserted, the tap is very likely to be broken. According to Swift, he asked Johnson about the casting with the "star" in it and the latter replied, "Ain I supposed to look in every one to see if there is anything in it?" Johnson testified that he did not remember having had...this alleged conversation or having Swift show him such a casting. Furthermore, he denied that any one of the taps had broken because of a "star." Johnson testified : I figured I was goi rig to be fired, after I broke the taps, and I went to him [Earl Miller] and told him I hated to drop out of the Local [the Union], but I asked him if he thought it would do any good to get in the other . . . organization. He said he didn't know, but he would speak to Mr. Swift about it, and he said that the boys would stay in the American Federation of Labor [the Union], and didn't come in the other Local [the Association], wouldn't have jobs very long. In his testimony Miller made no specific reference to the above conversation but he denied that he had threatened that members of the .Union would lose their jobs. He testified, however, that some- time during the day of June 17 he told Swift that "it looked like they [the Union] were just trying to get somebody fired around there ..so that they could close the shop down . . . trying to get Johnson 190935-40-vol. 14---03 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fired so that they could have an excuse." He. further testified, "I hated to see him fired." Miller was unable to explain the manner in which he conceived the idea that Johnson was going to be discharged or to explain what prompted his statements to Swift in this connection. Miller evasively stated : "Well, I have got eyes and I can see.:-. . That is as nearly as I can answer it [the question]. . . . I hate to see anybody fired. . . . I just had that feeling, he. was going to get. fired." Before the end of the working day Swift discharged Johnson. The latter testified that the reason given for his discharge was the break- ing of the taps. According to Swift, however, Johnson was also told that he was being dismissed because of his unreasonable absences from his work. Contrary to Swift's custom, he gave Johnson no warning prior to his discharge that his work had become unsatis- factory nor did he give Johnson an opportunity to correct the alleged deficiencies. Swift failed to explain this departure from his established practice. . Johnson was replaced by James Storms, an Association member who had not before been regularly employed at the plant. On two occa- sions thereafter Johnson asked Swift to reinstate him but without success. With regard to Johnson's alleged absences from work, we find that the respondent had no strict rules forbidding employees to leave their duties during working hours but that it was customary for them to leave only when necessary and to remain absent only about 10 min- utes. Johnson denies that he was away from his machine any undue length of time on the day of his dismissal, as alleged in the respond- ent's answer, and we credit this denial in the absence of any evidence to the contrary. Swift and Shuert testified, however, that for a week or so prior to the discharge, Johnson's absences from his machine were of unreasonable frequency and duration. According to Shuert's uncontradicted testimony, Johnson's neglect of his duties had become a subject of "common talk" among the employees, and he was gone so long on one occasion that Swift caused another worker to operate his machine for a few minutes. Furthermore, several days prior to June 17, Swift reprimanded Johnson for always being absent when Swift wanted him. Johnson testified that on this occasion he had left his work for about 10 minutes, but Swift claimed that he had clocked Johnson's absence at 45 minutes. We credit the latter's testi- mony for it is consonant with other testimony regarding this defi- ciency in Johnson's conduct. The testimony regarding the respondent's second alleged reason for Johnson's dismissal, the breaking of the taps, is extremely confused, inconsistent, and contradictory. Johnson claimed that the taps were AMERICAN SCALE COMPANY 985 broken through no fault of his own. He testified that two of the taps had "checks" or cracks in them caused by having been through a fire which burned down part of the plant in January 1937; that they were therefore brittle and very susceptible of breaking; and that when he received the two taps from Earl Miller, the latter stated, "They [the taps] may last long enough to tap out one casting;' they may last long enough to tap out six, they may not last long enough to tap out any." Miller, on the other hand, stated that to his knowledge no taps were used which had been through the fire, and he denied- that he made any statement regarding the taps when he gave them tor, Johnson. He admitted, however, that the first tap had been used* by Johnson for several weeks and that it "might have been worn a= little." Johnson testified that the third tap broke because it was too 'large to go through the casting and that this was not noticeable prior to its insertion in the casting. This explanation appears reasonable, for the taps were manufactured in the plant and were not always of standard caliber. According to Johnson's testimony, there were other causes con- tributing to the breaking of the three taps, namely, the fact that the tapping machine was old is and in bad condition from having been through the fire referred to above, and that the sliding table was loose and therefore difficult to keep in line with the taps. If the sliding table moves out of line while the taps are revolving within the castings, the taps will snap off. Miller and Shuert attempted to controvert this testimony of Johnson's. Miller admitted that the mechanical equipment was not of the best and that the sliding table was loose, but claimed that one could keep it tightened up. It appears, however, that it' would be difficult to maintain an exact alignment by manual adjustment of defective equipment. ' Shuert stated that he made an inspection of the machine after one or more of the taps had been broken and that there was nothing wrong with'-the machine to cause it to break taps at the time he inspected it. Johnson testified that the taps broken were an inch and' a quarter in diameter but the respondent's witness claimed that the taps: were an inch and a half in diameter. They further stated that they could recall no. other occasion on which three one-inch-and-a-half taps were broken, yin a single day. It is clear that no employee other than Johnson: was ever discharged for breaking taps. Omer Lugenbell, an employee, testified that it was a general occurrence for a tap to.-break; that he had broken three one-and-a-quarter-inch taps in .one day;-and that he once broke four taps in Morton Swift' 's'presence The record indicates that it was bought in 1925 or earlier. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without incurring any reprimand. Swift, however, denied that he was present when four taps were broken. Lugenbell stated that the machine on which he claimed to have broken the taps was not origi- nally a tapping machine like Johnson's but was a thread lathe "rigged up" as a tapping machine. The record does fnot show whether taps were more or less likely to be broken because .of this difference in the machines. Francis Young testified that early in 1937, before union activity began in the plant, he broke three taps in the course of an hour without being disciplined therefor; that he asked Shuert why the taps were breaking so frequently; and that Shuert replied that" in the old shop he had made the taps himself but that in the new shop the taps "went through so niany hands that they were faulty " and therefore broke. The taps which Young broke, how- ever, were three-quarter-inch taps, smaller than those broken; by Johnson, and although the testimony on this point is contradictory, it appears that smaller taps are more susceptible of breaking than larger ones. Johnson himself testified without contradiction that he was once using three-quarter-ilich taps, running three taps through each casting instead of the usual two, that he broke.one in Swift's presence; that Swift told him to use the number two tap as the number one tap, and the number three tap as the number two; 14 that lie warned Swift that the tap would break; that the latter nevertheless told him to "go ahead and try it"; that the tap broke as prophesied; and that Swift made no comment. In its brief the respondent partially retreats from the position taken in its answer and claims that if Johnson did not break five taps in one day as alleged, he broke three on June 17 and two others perhaps a few days before. Johnson denied that he broke more than three taps, and Shuert and Miller, witnesses for the respondent, testified regarding only three broken taps. The respondent sought to support its claim that five taps were broken solely by the testi- mony of Morton Swift, noted above, that he saw five castings con- taining broken taps near Johnson's machine. Swift admitted that he did not know that the five taps were broken by Johnson but stated, "Well, I knew it by [the fact that] he was the only man working on the machine and they were setting there, that was all, and he the same as acknowledged one of them when I showed it to him." Swift was referring to his testimony, set forth above, that he showed Johnson a casting containing a broken tap and a "star" and that the latter queried, "Am I supposed to look in every one to see if there is anything in it?" As we have already noted, Johnson 1*,.w,e have above noted the danger of departing from the usual ordor of inserting "taps in castings. AMERICAN SCALE COMPANY 987 did not recall this incident and denied that any tap was broken because of a "star." Moreover, had Johnson actually acknowledged breaking one of the taps near his machine , that cannot be construed as an admission that he broke four others. Under these circum- stances, Swift's testimony does not convince us that more than three taps were broken. The respondent's witnesses Miller and Shuert claimed that the breaking of two of the taps was caused by Johnson's having inserted the number two tap in the casting before the number one . Johnson. testified that he knew the only proper procedure for inserting the taps; denied that he had been guilty of prematurely inserting num- ber two taps in the castings; and denied that two taps had been broken for any such reason. Swift testified that at the time he discharged Johnson he did not know of Johnson's union affiliation or activities, and further testified that June 18, the day after the dismissal , was the date on which he first learned of the meeting held at Johnson's house. Set forth above, however. are Miller 's statements to Swift that it seemed as though the Union was trying to have Johnson discharged in order to have "an excuse" to close the plant. Had these statements been made to Swift on June 17, as Miller testified , it would be clear that Swift was aware of Johnson's union membership prior to the dismissal . Swift claimed, however, that Miller did not so advise him until June 18. Although certain circumstances surrounding Johnson's dismissal give rise to the suspicion that he was discharged because of his union membership and activities, as alleged in the complaint , the evidence as a whole does not in our opinion warrant an affirmative finding to that effect . Accordingly, we shall dismiss the allegations of the complaint with respect to Johnson, IIV. THE EFFECT OF THE UNr AIR LABOR PRACTICES UPON COMMERCE The activities of respondent set forth in Section III A above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has dominated and interfered with the formation ' and administration of, and contributed support to, the 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association. We shall order the respondent to cease and desist from such conduct and to withdraw all recognition from and disestablish the Association as the representative of any of its employees for the purposes of collective bargaining. We have further found - that respondent's contract with the Association is invalid under the Act. We shall order the respondent. to cease and desist from giving.effect- to the said contract. Upon the basis of the above findings of fact•and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Molders Union of. North America, Local 149, and Employees' Protective and Collective Bargaining Association are labor organizations, within the meaning of Section 2 (5) of the Act., 2. By dominating and interfering with the formation and adminis- tration of Employees' Protective and Collective Bargaining Associa- tion, and by contributing support to that organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in, the exercise of the rights guaranteed in Section 7 of the Act,, the respondent has engaged in and is engaging in unfair labor practices,. within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices, affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5: By discharging Leslie Johnson, the respondent has not engaged. in unfair labor practices, within the meaning of Section 8 (3) of, the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, American Scale Company, Pleasant Hill, Missouri, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Employees' Protective and Collective Bargaining Associa- tion, or with the formation or administration of any other labor organization of its employees, and from contributing support to Employees' Protective and Collective Bargaining Association, or any other labor organization of its employees; AMERICAN SCALE COMPANY 989 (b) Giving effect to the agreement of October 1937 with Em- ployees' Protective and Collective Bargaining Association, or any renewal thereof; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid or protection, as 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) Withdraw all recognition from Employees' Protective and Collective Bargaining Association as the representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, rates of pay, wages, hours of employ- ment, or other conditions of employment, and completely disestablish said Employees' Protective and Collective Bargaining Association as such representative; (b) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of sixty (60) consecu- tive days, stating (1) that the respondent will cease and desist as aforesaid; (2) that the respondent withdraws all recognition from Employees' Protective and Collective Bargaining Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablishes it as such representative; and (3) that the respondent will not give effect to the contract of October 1937 with Employees' Protective and Collective Bargaining Association, or any renewal thereof ; (c) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has discriminated in regard to the hire or tenure of employment of Leslie Johnson, within the meaning of Section 8 (3) of the Act. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.