Diamond T Motor Car Co.

In the Matter of DIAMOND T MOTOR CAR COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA Case No. C-1107.-Decided December 8, 1939 Motor Truck Assembling Industry-Interference, Restraint, and Coercion: speech and statements to employees conveying preference for inside labor organ- ization and opposition to outside organizations during outside union's campaign- Company-Dominated Union: domination of and interference with formation and administration ; formation in accordance .with respondent's expressed preference for an inside organization ; financial and other support; subsequent independence in administration not curative of initial domination and interference ; disestab- lished, as agency for collective bargaining-Contract: with company-dominated union abrogated-Discrimination: charges of, dismissed ; evidence fails to sustain charges. Mr. Robert R. Rissman, for the Board. Miller, Gorham, Wescott & Adams, of Chicago, Ill., by Messrs. Ed- ward R. Adams, James B. Wescott, and Robert English, for the respondent. Messrs. Joseph M. Jacobs and Harry U. Bernstein, of Chicago, Ill., for the Union. Evelyn Neilson Cooper, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated October 11, 1938, against Diamond T Motor Car Company, Chicago, Illinois, herein called the respondent, alleg- ing that the respondent had engaged 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. A copy of the complaint, accompanied by a notice of hearing, was duly served upon the respondent. 18 N. L. R. B., No. 31. 204 DIAMOND T MOTOR CAR COMPANY 205 With respect to the unfair labor practices, the complaint alleged, in substance, that (1) the respondent discriminated in regard to hire and tenure of employment and discouraged membership in the Union by discharging and refusing to reinstate C. R. Cahill;' (2) the re- spondent dominated and interfered with the formation and adminis- tration of a labor organization known as Automotive Workers In- dustrial Union, herein called the Association, and contributed support to it; (3) the respondent advised, urged, and warned its employees to refrain from joining or retaining membership in the Union, inter- rogated employees regarding their union affiliations, and threatened employees with discharge if they joined or remained members of the Union; and (4) by the foregoing acts and each of them, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent duly filed an answer to the complaint, which was amended during the hearing, admitting certain allega- tions of fact as to its business, but denying the alleged unfair labor practices. Pursuant to notice, a hearing was held on October 24, 25, 26, 27, 31, and November 1, 1938, at Chicago, Illinois, before Charles W. Whitte- more, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Prior to the hearing the Association filed a petition to intervene, which was denied by the Regional Director. At the opening of the hearing, the Association filed an amended petition to intervene, which was denied by the Trial Examiner. Upon appeal from the Trial Examiner's ruling, the amended petition to intervene was disallowed by the Board.2 At the close of the hearing the Association renewed its motion to intervene, which was denied by the Trial Examiner. During the course of the hearing the Trial Examiner ruled on several other motions and on objections to the admission of evidence. At the conclusion of the hearing counsel for the respondent moved to dismiss the complaint. Ruling on such motion was reserved by the Trial Examiner. The motion was subsequently denied in part and granted in part in his Intermediate Report. The Board has reviewed 'In the complaint C. R. Cahill was erroneously designated as C. A. Cahill. By an amendment to the complaint made during the hearing , "C. A. Cahill" was changed to "C. R. Cahill." 28ee Pacific Greyhound Lines, Inc. v . National Labor Relations Board, 303 U. S. 272, 1938, reversing 91 F. (2d) 458 (C. C. A. 9), which reversed in part and affirmed in part Matter of Pennsylvania Greyhound Lines, Inc ., Greyhound Management Company, Corporations and Local Division No. 1063 of the Amalgamated Association of Street, Elec- tric Railway and Motor Coach Employees of America , 1 N. L. R. B. 1. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rulings of the Trial Examiner and finds that no prejudicial errors were committed.3 The rulings are hereby affirmed, excepting the ruling on the motion to dismiss, which is affirmed only in so far as it is consistent with the findings, conclusions, and order hereinafter set forth. On December 27, 1938, the Trial Examiner • filed his Intermediate Report, in which he found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, but that the respondent had not discriminatorily discharged C. R. Cahill or dominated or interfered with the Association within the meaning of Section 8 (3) and (2), respectively, of the Act. He accordingly recommended that the respondent cease and desist from engaging in the unfair labor practices found and that the complaint be dismissed as to the other unfair labor practices alleged therein. Copies of the Intermediate Report, in which the parties were advised of their privilege, on request, to file briefs with and present oral argument be- fore the Board, were duly served upon the respondent and upon the Union. On January 19, 1939, both the respondent and the Union filed exceptions to the Intermediate Report. The Union also filed a brief in support of its exceptions. On January 30, 1939, the respondent filed a reply brief. Neither party requested oral argument. The Board has considered the exceptions to the Intermediate Report and the briefs submitted. In so far as said exceptions are inconsistent with the findings, conclusions, and order hereinafter set forth, the Board finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS , OF FACT 1. THE BUSINESS OF THE RESPONDENT 4 The respondent is an Illinois corporation, having its principal office and place of business in Chicago, Illinois, and a service branch in Long Island City, New York. It is engaged in the designing, as- sembling, sale, and distribution of motor trucks and motor truck parts 3 The Trial Examiner permitted the Union on motion to amend its second amended charge, preliminary to the amending of the complaint by the Board , alleging that Cahill was discharged because he was not a member of the Association rather than , as originally alleged, because he was a member of the Union . Counsel for the respondent took exception to this ruling on the ground that , since the Board Rules and Regulations require a charge to be made under oath , it can only be amended under oath and by the original maker. The amtndment was offered in open hearing by one of the Union 's co-counsel . The charge had originally been made by the other one of its two counsel . The respondent, on motion of its counsel, was allowed 3 days in which to answer the complaint as amended on the basis of the amended charge . Under the circumstances , the safeguards provided by the Board Rules and Regulations were substantially satisfied and the respondent was in no way prejudiced . we therefore do not find any fatal procedural defect. 4 The findings in this section are based on a stipulation of facts. DIAMOND T MOTOR CAR COMPANY 207 and accessories . This proceeding is concerned only with the respond- ent's Chicago plant. From October 1, 1937, to September 30, 1938, approximately 90 per cent of the materials used in the production of trucks were pur- chased and shipped from outside the State of Illinois. During the same period, the respondent produced finished products valued in excess of $8,000,000, approximately 90 per cent of which were shipped outside the State, about 25 per cent having been shipped to foreign countries. The respondent normally employs more than 500 persons in the manufacturing and servicing process at its Chicago plant. H. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Industrial Organ- izations, herein called the C. I. O. It admits to membership employees of the respondent. The Automotive Workers Industrial Union is an unaffiliated labor organization, admitting to membership automotive employees , exclu- sive of supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; domination of and inter- ference with the Association In the early spring of 1937 the Steel Workers Organizing Com- mittee, herein called the S. W. O. C., affiliated with the C. I. 0., com- menced to organize the respondent 's plant, and during the month of March 1937 secured a number of applications for membership from among the respondent's employees. During the same month, C. A. Peirce, the respondent's vice president,5 questioned Frank Koci, an employee, as to whether or not he had seen S. W. O. C. cards passed around the shop. At approximately the same time, Plant Superin- tendent Courval similarly questioned Joseph Tishcovske, an employee who had signed a S. W. O. C. card, and said, "Joe, it is like this, Mr. Tilt, the owner of this company, will not stand for any . . . outside union . . . If Mr. Tilt finds out organization is going on here I am going to lose my job, Mr. Peirce will lose his job, because Mr. Tilt will close this plant down." Koci's and Tishcovske's testimony was not denied. We find that by Peirce's and Courval's interrogation of Koci and Tishcovske, respectively, and by Courval's statement to Tishcovske, the respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 5 In this capacity, Peirce was in charge of production and engineering , and labor relations at the respondent's Chicago plant. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 24, 1937, a Chicago newspaper, the "Chicago Herald and Examiner," carried a brief news item stating that the United Auto- mobile Workers contemplated extending unionization "under the C. I. O. banner" to the respondent's plant. This news came to the attention of Peirce. He telephoned Tilt, the respondent's president, who was out of the city, and informed him of the announcement. Peirce testified, and we find, that Tilt advised, "Well, you better talk to the men about this situation and tell them we don't want a strike; we don't want a cessation of our work, such as Hercules 6 have had; we can not afford to be tied up here ; business is going good ... and a strike would be a very serious matter . . . You talk to the men, tell them of our friendly relations and our cooperative spirit ... and tell them we don't want any trouble." On the same day, following this conversation, Peirce called a meet- ing in the plant of all the employees. At about 1: 30 the men left their work and assembled, as instructed by the foremen. Peirce ad- dressed the group at some length. There is substantial agreement con- cerning the content of his speech. Peirce mentioned having seen the news item and pointed out that there had been no strikes at the plant since his arrival there in 1918. He also said that he was working on proposed wage increases and was considering the question of vacations. Peirce testified, and we find, that during the course of his speech he stated : I have read the Wagner Act, and while I don't pose as any author- ity on it, I can say that you have a perfect right to organize in any way you see fit a union in our plant ... There are three forms of union that I know of. There is the Federation of Labor, there is the C. I. O. and there is an independent union form of organization, and any of those are acceptable to me. However, personally, since I am going to conduct the negotiations probably with the representatives of whatever union is formed, naturally I would like to talk and deal with a man or men who know our business in our plant, understand our peculiar working conditions and can talk intelligently about them . .. By all means, don't let us stop work with any strike or any disturbance during these times when we have some business. In this speech, delivered to the employees assembled by the foremen in the plant during working hours at a time when self-organizational efforts were in their initial stages, Peirce, one of the respondent's principal executive officers, iterated the respondent's already asserted opposition to an outside labor organization and declared its preference for an inside organization. Thus, Peirce alluded to the present satis- factory condition of the respondent's business, contrasting it with the 6 Referring to the Hercules Motor Company, which supplied the respondent with motors. DIAMOND T MOTOR CAR COMPANY 209 prevailing disruption in the automotive industry as a whole, a condi- tion which he attributed to the current wave of C. I. 0. strikes. Con- tinuing, he advised the employees, on the one hand, of their right under the Act to organize as they desired, but, on the other hand, stated that he, as the individual likely to handle collective bargaining negotiations for the respondent, preferred to deal with "a man or men who know our business in our plant," or, in other words, an inside organization. The latter statement obviously offset his professed recognition of the employees' right to select their own form of organ- ization and constituted a direct appeal for the formation of an inside union. Moreover, on the same occasion Peirce referred to the coopera- tive attitude of the respondent, and in that connection mentioned that he was preparing wage increases and considering the matter of vacations. Whether these remarks were purposely intended to induce adherence to his expressed wishes is immaterial, for under the circum- stances they would inevitably be so construed by the employees. Peirce testified, and it is likewise contended in the respondent's brief, that in making this speech he was actuated solely by fear of a strike and by his desire to avoid an interruption in the respondent's business. Peirce admitted that there was no immediate threat of a strike at the plant and that his alarm was occasioned by the adverse effect of strikes elsewhere upon the respondent's production. Whether or not this apprehension was the motive for Peirce's speech is immaterial, since it is plain that his statements went far beyond an appeal for peaceful labor relations, as we have hereinabove found. We find that by this speech, delivered under the circumstances stated, the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.7 When Peirce concluded his talk, Walter Grassow, an employee, requested him and the foremen present to leave the assembly, in order that the men might discuss the matter of organization among them- selves. Peirce and all but two of the foremen withdrew immediately. The latter two were again requested by Grassow to leave, and they departed. There is a conflict in the evidence as to whether or not those two foremen remained within hearing distance of the discussion which ensued throughout most of the remainder of the afternoon. We find that they did not. During the ensuing discussion, some of the men urged C. I. 0., and others A. F. of L., affiliation, while some advocated the formation of an independent organization. There was 7 See National Labor Relations Board v. The Falk Corporation, 102 F. ( 2d) 383 (C. C. A. 7), enforcing Matter of The Falk Corporation and Amalgamated Association of Iron, !Steel and Tin Workers of North America, Lodge 1528, 6 N. L. It. B. 654, where the Court said : ". . . the voice of authority may, by tone inflection , as well as by the substance of the words uttered, provoke fear and awe quite as readily as it may bespeak fatherly advice. The position of the employer, where, as here , there is present, genuine and sincere respect and regard, carries such weight and influence that his words may be coercive when they would not be so if the relation of master and servant did not exist." 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentiment against A. F. of L. affiliation because "they ... figured it would be split up, our whole shop, that way, all different crafts and trades working there." There was also considerable opposition to the C. I. O. because of the then current strikes in the automotive industry. C. R. Cahill, an employee who had previously applied for S. W. O. C. membership, was among those who argued in favor of the C. I. O. He also explained "the workings of a union group, an outside inde- pendent organization, solely . . . for the benefits of the men." Later in the afternoon the assembled employees decided to resolve the ques- tion by secret ballot. Cahill suggested that they vote either for the C. I. O. or for an inside union. Two employees were selected from each department to supervise the balloting. The votes were cast on time slips and scraps of paper and were deposited at the time clock as the men left the plant for the day. The counting of the votes took place in Peirce's office, its use for this purpose having been requested by the men. Peirce was present but did not participate. The vote was substantially in favor of an inside organization. On the next day, March 25, two men were selected by the employees in each department to act as representatives at the initial organizational meeting of the Association. That afternoon approximately 30 such representatives, including Cahill, met in the shipping office of the plant during working hours.,' Questions of dues, legal assistance, and grievances were discussed and Cahill was elected temporary chairman. At the request of the group,.Cahill summoned Peirce to explain why two of the representatives had not been permitted to attend. There is no evidence that any other agent of the respondent attended. Cahill testified that Peirce used this occasion to offer him a "printed constitu- tion and bylaws." This testimony was not corroborated by other wit- nesses who were present at the meeting and Peirce categorically denied it. Cahill admitted that he did not accept or look at the proffered pamphlet. Under these circumstances, we do not credit Cahill's testimony concerning Peirce's alleged offer. Other organizational meetings were held outside the plant almost nightly during the subsequent weeks, for the purpose of drafting the Association's constitution and bylaws. On April 18, the first open meeting of the Association was held, off the respondent's premises. Officers were elected, Cahill being named president, and the constitu- tion and bylaws were adopted. Thereafter, a proposed contract was drafted by the Association's officers and executive committee and sub- mitted to the respondent's officials. Cahill admitted that after reading the proposed contract Peirce stated, "That it was a way too high, that the company could not afford to pay those prices." Other phases of the proposed contract were also objectionable to the respondent. Sub- s Cahill's foreman gave him permission to attend the meeting , saying, °... If I had been selected why I would have to go .. . DIIA MONI) T MOTOR CAR Conl-MANY 211 sequently, the Association had additional meetings with the manage- ment. A contract covering the Association's members only was signed on June 16, 1937, after being approved by acclamation at a meeting of the employees held on the respondent's time and premises. The Association also negotiated with the management on behalf of the employees concerning grievances. Cahill cited one instance where two discharged men were reinstated through the efforts of the grievance committee. The respondent permitted Association dues to be collected on com- pany time.0 It also consented to the erection of Association bulletin boards in the plant. And in July 1937, it contributed approximately $90 to help the Association defray the expenses of a plant picnic, the Association having incurred a deficit as a result of the picnic. Late in July 1937, dissatisfaction with Cahill's administration of the Association developed within the membership, culminating in his expulsion from the Association on September 15, 1937.10 Thereafter, Cahill was succeeded as president by Tom Law, an employee. On December 9, 1937, the respondent and the Association entered into a collective contract, superseding the above-mentioned June 16 contract, for a term of 1 year and subject to renewal thereafter. About April 1938, an undetermined number of the respondent's employees left the Association to join the Union. During this period Peirce approached Walter Stanisz and, after discussing his work, inquired about the "labor situation," stating, "I heard that there were C. I. O. cards floating around the shop," and that "some of the fellows go to C. 1. 0. meetings." Peirce also asked, "Why ... don't you fellows seem to get along with Tom Law?" and, "If you fellows don't like Tom Law, why don't you get him out of there and get another man in his place?" Peirce did not refute Stanisz's account of this incident. On the same day Stanisz reported his conversation with Peirce to Plant Superintendent Courval. Courval said, "I don't see why you attend these outside meetings." Stanisz then inquired if he had "done any- thing wrong," and Courval replied, "I hope not, they got your name on a list." A few days later, Hank Schwabe, Stanisz's strawboss, reported to him that Courval had inquired if any of the employees had been talking about outside unions and meetings, and a few days later also reported that Courval had asked if Stanisz was a good worker. During the same period William Crowell, an employee, was accosted by Courval, who said, "Say ... they tell me you are a C. I. O. member," and who told him he had been seen in the plant signing a union card. Neither Courval nor Schwabe testified. ° This permission was subsequently withdrawn at the suggestion of the Board's field examiner when investigating the charges filed in this case. 11 The circumstances surrounding his expulsion from the Association are more fully discussed in connection with his allegedly discriminatory discharge , considered in Section III B, infra. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 21 or 22, 1938, a union committee had an audience with Peirce regarding the posting of C. I. O. notices in the plant. Permission to post such notices was withheld by Peirce pending advice of counsel; there is nothing in the record to indicate that permission was subsequently granted. On the occasion of this occurrence Peirce asked the union representatives what was "wrong with the organiza- tion that was in the plant" and why they did not "get back inside the fence and play ball." Peirce did not deny having made these remarks. We find that by the immediately preceding statements and acts of Peirce and Courval, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Conclusions as to the Association During the formative stage of the S. W. O. C. membership cam- paign the respondent, through the interrogations and comments of Peirce and Courval, opposed outside affiliation of its employees and, through Peirce's talk on March 24, directed their organizational efforts toward the formation of an inside organization. By these acts the respondent furnished the initial impetus for the formation of an in- side organization with the result that the Association was created and the first effort to form an outside union was abandoned. Thus the respondent not only restricted its employees' free exercise of their right to self-organization, as we have hereinabove found, but also dominated and interfered with the formation of the Association. The respondent supplemented its advocacy of an inside organization with direct assistance and support to the Association. The election of March 24 was held on company time and property. At least one employee representative, Cahill, was given the express permission of his foreman to attend the initial organizational meeting of the em- ployee representatives held on March 25 on company time and prop- erty. Association bulletin boards were erected in the plant and for several months dues were collected during working hours. The meet- ing at which the Association's contract of June 16 was approved by the membership was held on company time and property. In July the Association received a financial contribution of about $90 from the respondent in connection with the expenses of a plant picnic. These acts were in marked contrast to the respondent's opposition toward an outside organization from which it withheld even the use of its bulle- tin boards "pending advice of counsel." Finally, in the spring of 1938, when the C. I. O. again undertook to organize the employees, the respondent by its statements renewed its attack on the latter and sought to avert disaffection from the Association. DIAMOND T MOTOR CAR COMPANY 213 The respondent contends in its brief that the evidence establishes the Association to be in fact an independent organization and hence that the respondent cannot be deemed to have dominated, interfered with, and contributed support to the Association in violation of Section 8 (2) of the Act. In support of this position, it points to the follow- ing facts: (1) The Association was organized after the open discus- sion and the secret balloting which followed Peirce's speech of March 24; (2) Cahill as well as certain other duly elected officers of the Association had previously applied for membership in the S. W. 0. C. and openly advocated C. I. 0. affiliation during the discussion on March 24, while Cahill, as president, repeatedly stressed the need for a truly independent union; (3) no agent of the respondent participated in the mechanics of organizing the Association; (4) the July 16 con- tract represented, not the dictates of the management, but a com- promise on behalf of both parties; and (5) the Association's griev- ance committee functioned effectively. These facts do not have the probative force attributed to them by the respondent, especially when considered in relation to our foregoing findings. While it may be con- ceded that certain individual employees or groups of employees exer- cised some measure of independence during Cahill's incumbency as president of the Association, it does not follow that the independence of certain members of the Association establishes the independence of the Association. By reason of the facts already set forth, the Asso- ciation was, from the outset, an organization of the respondent's choice, rather than an organization of the employees' "own choosing." The exercise of a limited independence of action, within the framework of an organization otherwise dominated and supported by an employer, does not render such organization a free agent of the employees as contemplated by the Act. We find that by its acts hereinabove discussed the respondent dom- inated and interfered with the formation and administration of the Association and contributed financial and other support to it and there- by interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The December 9, 1937, contract described above, having been made with a company-dominated labor organization, is illegal and void." B. The allegedly discriminatory discharge of C. R. Cahill The complaint, as amended during the hearing, alleged that on August 12, 1937, the respondent discharged and has since refused to "See National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3), modifying and enforcing Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B. 171; petition for certiorari denied November 6, 1939; Titan Metal Manufacturing Company v. Titan Em- ployees Protective Association, 308 U. S. 615, enforcing Matter of Titan Metal Manufac- turing Company and Federal Labor Union No. 19981, 5 N. L. R. B. 577. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employ Cahill for the reason that he was not a member of the Asso- ciation and engaged in concerted activities with other employees at the plant for their mutual aid and protection. In its answer the respondent denied the specific act of alleged discrimination and af- firmatively stated that Cahill was laid off along with other employees on or about the same date, because of a decrease in the volume of its business. Cahill was hired by the respondent on August 18, 1936. With the exception of about the first 2 weeks, he was continuously employed until August 12, 1937, as a member of a three-man "special equipment" crew. The work of this crew consisted of attaching to trucks special equipment, such as side gasoline tanks, facilities for sleeper cabs and trailer brake connections, which were not attached by regular finishers on the assembly line. Until Cahill joined the crew it was composed of only two men. About the first of August 1937, Cahill, as president of the Associa- tion, prepared and distributed to the employees a notice calling a meet- ing for August 10. The notice, which reflected the existing dissension within the Association, read in part : Shall we keep the ground we have gained or shall we let some of those among us who for a little personal gain would sell us back into the slaving underpaid conditions, that are sure to follow. Prior to the meeting on August 10, Peirce asked Cahill if he was responsible for this notice and demanded an apology for the comment therein about "slaving underpaid conditions." Cahill refused to apol- ogize. Peirce then declared that he ought to fire him. Cahill began to pick up his tools, whereupon Peirce told him to continue his work. Cahill's and Peirce's accounts of the incident are substantially similar. At the Association meeting on August 10, Cahill was temporarily suspended for engaging "in activities unfriendly and injurious to the Union [Association]. and the membership at large" and for creating "friction, strife or disorder between the members, or between the Union [Association] and the employer, when such conduct is without the knowledge, approval and direction of the Executive Committee." 12 Cahill testified, and we find, that at about 3: 30 on the afternoon of August 12 he was advised by Courva.l that "there would be no more 12 These provisions are contained in Article VIII of the Association's Constitution and Bylaws, Board Exhibit No . 12, governing the "Removal of Officers and Committeemen." The Association's action was based on charges preferred by the executive committee be- cause of Cahill's efforts on behalf of the respondents service-station employees. This group of employees was covered under the Association's June 16 contract. The group had approached Cahill in mid-July 1937 for information regarding possible affiliation with the A. F. of L. Chicago Garage Mechanics Union, to the end that it might obtain the benefits of preference or priority in case of transfer to other garages under the jurisdiction of the same union . Cahill had communicated with an A. F . of L. organizer. So far as the record discloses, he did not thereby incur the displeasure of the management, as contended by the Union. DIAMOND T M.OT•OR CAR COMPANY 215 work for me"; that he asked "what was the matter, was things getting slow" and that Courval answered "yes"; that he "figured it was just a lay off" and accordingly suggested that he would leave his tools with the crew; that Courval objected, telling him to take his tools with him "so you won't come back and say that your tools are missing or have been stolen"; that he then inquired why it was "that a younger man than I am is still working on the crew and I am being laid off," to which Courval replied "that was his orders from the company." Courval was not called to testify. Peirce testified, however, that he had nothing to do with Cahill's lay-off and that the responsibility therefor rested entirely with Courval. Whether, in dismissing Cahill, Courval acted on his own initiative or at the direction of Peirce is immaterial, as is hereinafter shown. On or about August 18, Cahill returned to the plant for his pay check. Cahill testified that while there he saw Peirce in the office, asked "How about my work" and was told, "You have been expelled from the union [Association]. You do not have a card and you cannot work here, and you can't get back in." 13 Peirce denied the place and substance of this conversation. The record discloses that Cahill was not expelled from the Association until September 15, and that it was not until after such date that Peirce learned either of Cahill's sus- pension on August 10 or of his ultimate expulsion from the Associa- tion. Peirce testified, however, that he did meet Cahill out in the plant shortly after his lay-off and that Cahill asked, "How would you like to have the Federation of Labor in your plant now?" In view of all the evidence, we cannot credit Cahill's testimony, and find that the conversation occurred as stated by Peirce. Accordingly, we find that Cahill did not apply for reemployment on or about August 18, 1937. There is no evidence in the record that at any time thereafter he was denied employment by the respondent. The Trial Examiner found that the evidence did not support the above-mentioned allegations in the complaint concerning Cahill's dismissal on August 12, 1937. We agree with his conclusion., It is not established, as the Union contends, that Cahill's dismissal is traceable to Peirce's annoyance at his statement about "slaving under- paid conditions," contained in the notice of the Association's August 10 meeting, or that because of his annoyance Peirce maneuvered Cahill's suspension from the Association. And regardless of whether his dis- missal was Courval's sole responsibility, as Peirce testified, or was ordered by Peirce, as Cahill testified, it is not established that either 13 The contract provided that "Any new employee kept on the job for thirty ( 30) days shall be considered to have qualified himself for his job, insofar as the first party is con- cerned and said employee shall be deemed to have qualified for Union [Association] membership after being so employed for thirty days." We find that this provision did not constitute membership in the Association a condition of employment. 283029-41-vol. 18-15 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Courval or Peirce had knowledge on August 12 of Cahill's suspension from the Association 2 days earlier. On the contrary, the evidence shows, as we have found, that prior to his suspension there was ap- parent dissatisfaction among the membership with his administration of the Association, culminating in his expulsion, and that the man- agement first learned of Cahill's suspension and subsequent expulsion from the Association more than a month after his dismissal. The Trial Examiner further found that Cahill was dismissed, as alleged by the respondent, because of a decrease in the volume of its business. We also agree with this conclusion. The respondent's records which are in evidence, and which were not controverted, show that, from May 1937 until the date of the hearing in this proceeding, the trend of employment at the respondent's Chicago plant was de- cidedly downward; that, from May 5 until August 12, Cahill worked only part time; that between June 16 and August 12, 19 production employees in addition to Cahill were laid off; and that thereafter no new production employees were hired. However, the Union argues in its exceptions that Cahill was not dismissed in order of seniority, as provided for in the Association's June 16 contract, and that his efforts to compel the respondent to adhere to the seniority provision in the contract constituted one of the causes for his dismissal. That provision read : ". . . lay-off can .. . be made only under strict seniority rulings-the last hired to be the first man laid off." Cahill construed this language as providing for "plant-wide" seniority, although he admitted that the respondent had opposed such an interpretation.14 According to Peirce's unrefuted testimony, a system of ."plant-wide" seniority was proposed by Cahill during the negotiations for the contract and finally abandoned by him as being impracticable.'F Peirce also testified, and the respondent's records are corroborative, that prior to and at the time of Cahill's dismissal a policy of "occupational" seniority obtained and that Cahill was dismissed, as were others before him, in accordance with this policy. There is no evidence that Cahill or the Association challenged the respondent's seniority policy in the case of the earlier dismissals. Cahill did not deny that, of the three men comprising the special equip- ment crew, he had the least seniority. But he did claim that on August 12 there were seven men, all junior to him in terms of seniority, still employed in Department X, which includes the chassis finishers and 14 About the end of July 1937, the Association decided to install in the plant a "slip board," that is, a "board with the name of every man employed by the company in it, with the date of his employment . . . from the oldest man on top to the youngest man on the bottom." With regard to the posting of that board, Peirce told Cahill he was "taking too much for granted ." There is no showing in the record that this "slip board" was ever posted. 15 According to Peirce's testimony , plant-wide seniority was impracticable because of the varying degrees of skill required for the respondent 's work, its plant being a hand- assembly plant, where trucks are built to individual order., DIAMOND T MOTOR CAR COMPANY 217 assemblers as well as Cahill's special crew. The record discloses that of those seven employees, there were only two whom Cahill was quali- fied to replace but that they in fact were laid off 2 days before August 12.11 In view of the above evidence, we find that on or about August 12, 1937, the respondent pursued a policy of occupational seniority, that such policy was not necessarily violative of the equivocal senior- ity provision contained in the Association's current contract, and that Cahill was dismissed in pursuance of that policy. Although certain circumstances surrounding Cahill's dismissal give rise to the suspicion that he was discharged for the reasons alleged in the complaint, the evidence as a whole does not in our opinion war- rant an affirmative finding to that effect. Accordingly, we shall dismiss the allegations of the complaint with respect to Cahill. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III A above, occurring in connection with the operations of the respondent described 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 Having 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 forma- tion and administration of, and contributed support to, the Associa- tion, we find that the Association is incapable of serving the respond- ent's employees as their bona fide representative for the purposes of collective bargaining. We shall order the respondent to withdraw all recognition from and disestablish the Association as the representative of any of its employees for the purposes of collective bargaining. 17 Having also found that the respondent's contract of December 9, 1937, with the Association is invalid under the Act, we shall order the respondent to cease and desist from giving effect to said contract or any renewal thereof. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : "These two mentioned employees were both recalled for short periods during Septem- her 1937, but so far as the record reveals neither they nor any other employees were assigned to Cahill's tasks on the special equipment crew. We find that the respondent recalled them , in preference to Cahill, in accordance with its current policy of "occupa- tional" seniority. 17 See Pennsylvania Greyhound Lines, Inc. v. National Labor Relations Board, supra; National Labor Relations Board v. The Falk Corporation, supra. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Industrial Union, United Automobile Workers of America, and the Automotive Workers Industrial Union 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 the Automotive Workers Industrial Union, and by con- tributing financial and other support to that organization, the respond- ent 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 C. R. Cahill, 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 respond- ent, Diamond T Motor Car Company, Chicago, Illinois, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of the Automotive Workers Industrial Union, or with the forma- tion or administration of any other labor organization of its em- ployees, and from contributing financial or other support to the Auto- motive Workers Industrial Union, or to any other labor organization of its employees; (b) Giving effect to the agreement of December 9, 1937, with the Automotive Workers Industrial Union, or any renewal thereof, or to any successor agreement with said organization; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activi- ties, for the purpose of collective bargaining or 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: DIAMOND T M'O'TOR CAR COMPANY 210 (a) Withdraw all recognition from the Automotive Workers Indus- trial Union as the representative of any of its employees for the pur- pose of dealing with the respondent concerning grievances, labor dis- putes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish said Automotive Workers Industrial Union as such representative; (b) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, a notice to its employees that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c), and will take the affirmative action set forth in 2 (a) of this Order; (c) Notify the Regional Director for the Thirteenth 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 discriminated in regard to the hire or tenure of employment of C. R. Cahill within the meaning of Section 8 (3) of the Act.