Sparks-Withington Co.

DECISIONS AND ORDERS OF THE NATIONAL LABOR RELATIONS BOARD In the Matter of SPARKS-IVVITHINGTON COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 62 Case No. C-1050.-Decided March 1, 1940 Automobile Warning Horn, Refrigerator, and Radio JIanufacturing Industry- Interference, Restraint, and Coercion : critical and disparaging statements con- cerning union and union activity ; threat to discharge union member for union activity; espionage-Company-Dominated Union: domination of and interfer- ence with formation and administration; support; falsely attributing bargain- ing success to ; concessions to encourage membership in; supervisory employees, membership in and solicitation of membership by, deceptive tactics in soliciting membership, responsibility of employer for acts of ; encouragement of inside union by discouraging rival ; disestablished as agency for collective bargaining; contract with, abrogated-Discrimination: discharge ; charge of, not sustained. Mr. George J. Bott, for the Board. Mr. Leland A. Bisbee and Mr. David W. Kendall, of Jackson, Mich., for the respondent. Blackman and Blackman, by Mr. Frank L. Blackman, of Jackson, Mich., for the Society. Mr. William T. Little, 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, Local No. 62, herein called the United, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (De- troit, Michigan), issued its complaint dated September 9, 1938, against Sparks-Withington Company, Jackson, Michigan, 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 notice of hearing there- on were duly served upon the respondent and upon the United. 21 N. L. R. B., No.1. -- --1- -- 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In respect to the unfair labor practices, the complaint alleged in substance : (1) that the respondent had encouraged, sponsored, dom- inated, interfered with the formation and administration of, and lent financial and other support to, The United Cooperative Society of Jackson, Inc.,1 herein called the Society; (2) that the respondent discriminated in regard to hire and tenure of employment by dis- charging Leslie Vinton in order to discourage membership in the United; and (3) that by the foregoing acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent duly filed an answer to the complaint, admitting the allegations concerning in- terstate commerce, but denying that it had engaged in or was engag- ing in the alleged unfair labor practices. The respondent also filed a motion to dismiss the complaint on numerous procedural grounds. Pursuant to notice, a hearing was held at Jackson, Michigan, on September 22, 23, 27, and 28, 1938, before Henry J. Kent, the Trial Examiner duly designated by the Board. At the beginning of the hearing the Trial Examiner granted the Society's motion to inter- vene, but limited its participation to matters pertaining to the charge that the respondent had dominated and interfered with its adminis- tration. The Board, the respondent, and the Society were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues was afforded all parties. At the commencement of the hearing, the respondent renewed its motion to dismiss the complaint on procedural grounds. The Trial Ex- aminer denied the motion. Other motions and objections to the ad- mission of evidence were made and ruled upon at the hearing. At the conclusion of the hearing counsel for the respondent moved that the complaint be dismissed. The motion was denied by the Trial Examiner in his Intermediate Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner filed his Intermediate Report, dated November 19, 1938, copies of which were duly served upon all parties. The Trial Examiner found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act and recommeaided-that the respond- ent cease and desist therefrom, that it withdraw all recognition from and disestablish the Society as a collective bargaining agent, that it offer reinstatement with back pay to Leslie Vinton, and that it take certain other affirmative action remedial of the unfair labor practices. On December 1, 1938, the respondent and the Society filed their separate exceptions to the Intermediate Report. On January 3, 1939, 1 Incorrectly designated as The United Cooperative Society, Inc in the complaint SPARKS-WITHINGTON COMPANY 3 the respondent and the Society filed their respective briefs, which have been considered by the Board. On September 12, 1939, pursuant to notice, a hearing for the purpose of oral argument was had before the Board at Washington, D. C. The respondent and the Society appeared and participated in the oral argument. On September 16, 1939, pursuant to leave granted at the oral argument, the respondent filed a supplemental brief. The Board has considered the exceptions of the respondent and the Society to the Intermediate Report and, in so far as they are incon- sistent with the findings, conclusions, and order set forth below, 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 Sparks-Withington Company is an Ohio corporation having its principal place of business in Jackson, Michigan. It is engaged in the manufacture and sale of automobile horns, radio receiving sets, and electric refrigerators at its four plants in and adjacent to Jackson, Michigan. In 1937 raw materials valued at approximately $1,650,000 and constituting 61 per cent of the total raw materials used by the respondent were shipped to it from points outside the State of Mich- igan. During the same year finished products valued at $3,350,000, and, constituting 61 per cent of the total finished products manufac- tured by the respondent, were shipped to points outside the State of Michigan. II. THE ORG 1NIZATIONS INVOLVED International Union, United Automobile Workers of America, Local No. 62, is a labor organization which at the time of the hearing was affiliated with the Committee for Industrial Organization= It admits to membership employees of the respondent as well as em- ployees of other employers in Jackson. The United Cooperative Society of Jackson, Inc., is an unaffiliated labor organization admitting to membership employees of the re- spondent, exclusive of executives, superintendents, foremen, and sub- foremen. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Early in 1937 the United was organized and started to solicit members among the respondent's employees. During the succeeding 2 Now the Congress of Industrial Organizations 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months, the respondent, through its supervisory employees, sought to discourage its employees from becoming or remaining members of that labor organization. In April 1937 one Darling, at that time one of the respondent's employment managers, asked Elgin Holt, a member of the United, to appear at his office. Upon Holt's arrival, Darling reminded him that they were friends and asked Holt what he knew about union activity in the shop. When Holt replied that he knew little, Darling offered to pay his dues if he would join the United and report to him the names and total number of the employees who had joined. Holt did not tell Darling that he was a member of the United. He refused to inform on the members of the United, but agreed to and did report on their number. At about the same time Arthur Porter, one of the respondent's foremen and Vinton's superior, warned Leslie Vinton, at that time a tool and die maker employed by the respondent : "I understand you are a second John Lewis . . . I'm telling you now, you want to watch your step, because if they get anything on you, they are going to let you go." Porter did not deny having made the state- ment, but sought to explain it as a move to induce Vinton to work harder. The statement, however, regardless of Porter's motive in making it, plainly amounted to a threat calculated to discourage Vinton's union activity. In April or May 1937, shortly after he started to wear his United button, Edgar Lawton, an employee in the horn division, asked Orest Allread, superintendent of production in the horn plant, for some materials and tools to use at home. Lawton testified that twice within the ensuing month Allread, reminding him that he had done a favor for him asked, "Why do you keep working against me?" and that at first Allread refused to explain what he meant thereby, but at Lawton's insistence, Allread replied, "I guess you know well enough." According to Allread, Lawton was dissatisfied and com- plaining and accordingly he said to him : "Didn't we help you out a little bit? ... Don't you think you ought to quit talking about these things? We are doing the best we can; we can not do any more now than what we are doing." Lawton- had been employed by the respondent for ten years, and the conversation occurred but a few weeks after he started to wear a union button. We are con- vinced on the basis of Lawton's testimony that Allread had refer- ence to Lawton's union activities and was seeking to discourage him from continuing his membership in the United. In late 1937 or early 1938, Nelson Harland, a member of the United and an employee in the refrigerator division, was returned to work after a protracted lay-off. Harland testified that at the time of-his SPARKS-WITHINGTON COMPANY a reinstatement Darling produced a slip of paper and said, "You are the second oldest man on the list and next to the last to. be called in. That is what the union has done for you." According to Sparks, the respondent's vice president and general manager, Darling had reported the statement to him as, "That is what the union and seniority have done for you," saying that he meant thereby that if it were not for the union, Harland would not have been called back.3 In view of Darling's hostility to the United, we reject Darling's explanation as testified to by Sparks and find that the statement was designed to disparage the value of the United to Harland. We find that the respondent by inducing Holt to engage in espio- nage upon the United and by the anti-union statements of Darling, Porter, and Allread described above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.4 B. The formation of the Society Although the time of its inception is not clear, there existed at the respondent's plants in 1937 a factory council, composed of repre- sentatives elected by the employees and a group of management representatives selected by the respondent. At the time of its dis- solution in May 1937, discussed below, the council was headed by its chairman, one Kayko, the superintendent of the radio plant. About the time the United started organizing in the respondent's plants, the Society was conceived and organized. Early in February 1937, Lloyd Johnson, Claude Blanchard, Charles Wyant, and Irvin Luxton, all old employees of more than 15 years' service, decided to organize an inside union. They were not immedi- ately concerned with procuring wage increases but their purpose, as admitted in the testimony of Blanchard and Wyant, was to form a labor organization to prevent strikes and outside organization of the horn division of the plant and to provide a method of cooperative purchasing for its members. About the middle of February, with this purpose in mind, the four employees called upon Sparks. They told him that they foresaw "labor trouble" and wished to avoid it, and to that end were considering forming an inside union to bargain with the respondent; and that although they knew that they had a legal right to organize, they wanted to know "if it was all right with the management." Blanchard, the Society's president, testified that Sparks demanded as a condition precedent to recognition that the 8 Although Darling was not in the employ of the respondent at the time of the hearing, no showing was made of his unavailability as a witness , nor did the respondent request a subpoena for his appearance. 4 The respondent's defense that it is not responsible for the statements and activities of the above-mentioned employees is considered in section C, tinfi a. 283032-41-vol 21-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed labor organization be responsible and incorporate. Sparks admitted demanding that the labor organization be responsible., but denied that he had referred to incorporation. In view of Sparks' admission we accept the testimony of Blanchard and we find that Sparks made the demand that the proposed union be incorporated. On February 24, 1937, a meeting was held between Sparks and Corbett, vice president of the respondent, and the four above-named employees, who at this time were the only members that the incipient labor organization had among the respondent's 1,500 employees. Without suggestion from the four organizers, Sparks proposed a wage increase which they accepted and which later became effective on March 1, 1937. There were no further conferences with the re- spondent until April 21, 1937, after the proposed labor organization had evolved into the Society. Following the meeting of February 24, the employees conferred with Maxwell F. Badgley, an attorney. Shortly thereafter they were joined by six other employees including Fred Vinton, an employee described as a "contact man" between the superintendent and the foremen, who together with the original four became the incorpora- tors of the Society. Thereupon the Society elected temporary officers for incorporation purposes, and in competition with the United started a campaign for members. The bylaws were approved on April 12, 1937, and the Society was incorporated on April 16, 1937. On April 28, 1937, the respondent posted a bulletin announcing that as of May 1, 1937, the factory council would be disestablished in view of the proscriptions of the Act. The campaign of the Society for members was carried on by indi- vidual solicitation in the shop and at general public meetings, which were held at frequent intervals after March 24. On one occasion a paper announcing a public meeting of the organization was placed on the production belt used in the horn division. On April 20, 1937, a meeting was held in conjunction with that of the company credit union, an organization supported by the respondent. After the meet- ing of the credit union adjourned, a meeting of the Society which was open to the members of the credit union was held. At this meeting the Society's bylaws were read and an attorney explained and was questioned about the Act and its effect on the Society. No satisfactory explanation for the joint meeting appears in the record.5 The Society's bylaws, as passed on April 12, provided for a plan for cooperative buying and a committee to deal with the respondent on matters concerning employer-employee relations. They also pro- vided that membership should be limited to the respondent's em- " Wyant, treasurer of the Society, first testified that the regular meeting night of the Society conflicted with the date of the credit union meeting, but subsequently admitted that the meetings of both organizations were special meetings SPARKS-WITHINGTON COMPANY 7 ployees of at least 6 months' service and that membership should automatically terminate upon the termination of the employment relation. Foremen and other supervisory officials were eligible for membership and joined.' Thus, Superintendent Allread, Employ- ment Manager Darling, Foreman Dean Chambers,? Arthur Porter, and Charles Dean, together with Assistant Foreman Kirby Baker, Edward Masters, an employee in charge of maintenance in the re- frigerator division, and Fred Vinton, all joined the Society. Super- visory employees attended meetings and their names were read out at the meetings along with other employees on the membership rolls. In addition, various of the supervisory employees aided in the membership campaign of the Society. Thus when Edgar Lawton asked Arthu Poole, the, respondent's paymaster, for an advance on his wages, Poole, noticing his United button, admittedly inquired what the United could do for him that the Society could not do. According to Lawton's testimony Poole further pointed out the difference in dues between the two and inquired why he (Lawton) did not use the money he put into the United instead of asking for advances. Lawton further ascribed to Poole the statement that while the Society was not a company union, the respondent "backs it up." In view of Poole's admission, we find that he made the other state- ments attributed to him by Lawton. Masters, who served also on the negotiating, nominating, and general committees of the Society, requested Nelson Harland to attend a Society meeting. Fred Vinton and Foremen Dean and Porter kept membership application cards on their desks. Fred Vinton and Baker solicited employees on be- half of the Society as a cooperative purchasing plan without men- tioning its collective bargaining aspect. On one occasion Baker solicited all the employees in one of the respondent's departments and succeeded in'enlisting alinost'all of them as members. Many of the employees thus solicited withdrew when Baker subsequently revealed that the Society was a labor organization. As a result of this method of solicitation as carried on by Baker, Vinton, and other members of the Society, ninny employees joined in ignorance of the fact that the Society was a labor organization.8 Other supervisory employees also BAlthough tlieie is some testimony that from the outset foremen could not participate in the collective bargaining functions of the Society, the original bylaws contain no-such provision ' The. only iestuction placed on the activity of such employees is a provision that they cannot serve on the relations committee , a committee composed of all members except supervisory employees The action of such committee, however, was subject to the approval of the entice membership , including supervisory employees 7 According to McQuillin , Chambers was one of the early membei s of the Society Sparks admitted he had been a foreman , but contended he had been demoted in the late winter or early spring of 1937 There is nothing in the record to indicate that his demotion antedated his membership in the Society. , Vinton denied that he engaged in this -practice. We accept, howeer, the testimony of Avery Shull , an employee who was so solicited by Vinton and resigned when he learned that the Society was a labor omganization Shull is not a member of the United 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expounded upon the advantages of the Society as a cooperative. For example, Foreman Stoveall told Nelson Harland that he believed cooperative buying was a good thing. Since the Society was the only cooperative in the plant, it is plain that Stoveall *as urging membership in the Society. Likewise Allread told at least one em- ployee that if he could purchase gasoline cheaper as a member, it would be worth while to join the Society. On June 2, 1937, the Society, in an effort to comply with the Act, amended its bylaws to exclude from membership executives, superin- tendents, foremen, and subforemen.9 By this date, however, the Society had secured over 90 per cent of the members that it 'had en- rolled at the time of the hearing.19 We have already observed that the respondent had gratuitously offered a general wage increase to the founders of the Society at the meeting of February 24. The parties did not meet again until April 21, 5 days after the Society was incorporated. After that meeting, the respondent posted the following announcement : Prior to March 1st a group of our employees came to us advising that they would like to discuss some Sparks-Withington employees' problems with the management. As part of the results of those discussions there was put into effect hours and wage changes, as of March-1st 1937. Since that time this group of employees have advised the management they have formed an organization and have asked for a couple of informal meetings, followed by a Formal Collec- tive Bargaining Conference on Wednesday, April 21 and-as the result of these discussions with the United Co-Operative Society of Jackson, Incorporated, it has been mutually agreed as follows : The concessions granted to the Society, as a result of the April 21st meeting included: a 5-minute afternoon rest period; a provision that employees called back to work when work was not available should receive 2 hours pay; a 40-hour working week and an 8-hour working day effective July 1, 1937, with overtime paid at the rate of time and a half based on the day's earnings plus one half the guaranteed rate; and a provision guaranteeing existing wage rates against reduction until January 1, 1938. The bulletin further announced that other matters had been left in abeyance and would be taken up during the following week. Although the bulletin states that there were other meetings preceding that of April 21st, the evidence established that no such meetings were held. 9 Thereafter the supervisory employees were permitted to enjoy the cooperative buying privileges of the Society, although they could no longer become members. 10 According to the Society's minute book, it had issued 239 membership cards between its inception and June 2, and 283 before October 6 The minutes do not disclose the issuance of any additional membership cards prior to the hearing. SPARKS-WITHINGTON COMPANY 9 The Society again met with the management on April 28, and on that day the respondent posted another bulletin announcing as a result of this meeting the clarification of the seniority rule, the abolition of the factory council "because of the `Wagner Labor Act,"' and an increase in the base pay rate of the women "productive workers." It further provided that the exception of the maintenance, engineering, and development departments from the operation of the 40-hour week and overtime provisions of the statement of April 21 was repealed and that the matter be left open for further negotia- tion between the respondent and the Society." Thereafter on July 7, 1937, and again in June 1938 the respondent entered into substantially identical contracts with the United and the Society. The contracts recognized the respective labor organizations as the representatives of their members and contain provisions as to representation, seniority, wages and hours, and other miscellaneous matters. Foremen, assistant foremen, supervisors, and confidential employees were expressly excluded from the operation of these contracts. C. Conclusions with respect to the Society As we have found, the organizers of the Society believed that the approval of the respondent was a desirable if not a necessary condi- tion precedent to the formation of that labor organization. Follow- ing the wishes of the respondent that the labor organization be re- sponsible the founders promptly incorporated the Society. Both in its membership campaign and in bargaining, the Society leaned heavily upon the support of the respondent and the assistance of the supervisory employees. At the meeting of February 24, without any request from the Society's organizers, Sparks gratuitously brought up the question of the wage increase which was put into effect on March 1st. In its bulletin of April 21st the respondent falsely attributed the increase to the effort of the Society's founders. At the time of the conference of February 24, the incipient labor organization represented only 4 of the respondent's 1500 employees. Although when confronted with the bulletin of April 21st Sparks testified that, having determined to change the pay rates, he dis- cussed the matter with the Society and some changes were made in favor of the employees and some in favor of the respondent, he had previously testified as follows : "We mentioned some things we were planning on doing early in March." The latter explanation, being in accord with Blanchard's, we accept it and reject the former. Thus in no fair sense can the wage and hour changes of March 1st be n On April 21 and 28, the Society had issued 1 41 and 187 membership cards respectively. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attributed to the efforts of the Society. The respondent's act of attrib- uting them to the Society at a time,when it was waging a^membership campaign in competition with the United constituted valuable support to the Society. At the meetings of April 21 and 28 further, important concessions were made. In its bulletins the respondent made certain that such concessions were attributed to the Society. In view of the respondent's effort to attribute the wage increase of March 1 to the efforts of the Society, and the number of concessions granted at the conferences of April 21 and 28, the first two conferences the Society had with the respondent, we are satisfied that the concessions granted by the respondent constituted support to the organization of the Society.12 Immediately after the Society was incorporated the admittedly illegal factory council was disestablished. We have observed the. activities of. the supervisory employees in joining, soliciting members for, and otherwise aiding the Society. In June, only after the Society had obtained its full stature, were they excluded from membership. It is clear therefore, that the sup- port of the supervisory employees was not withdrawn until after the Society was firmly established and accordingly came too late to free the Society of the onus of employer support. The respondent claims that only its employment managers have authority to hire, and no one except the three plant managers have power to discharge. The power to hire and discharge, however, is not the sole criterion in de- termining whether an employee enjoys such a status that his acts can be imputed to the employer.13 The respondent recognized the super- visory character of the" duties,ofsome of thbse,not -having the power . to hire and discharge when it denied foremen, assistant foremen, supervisory, and confidential employees the privilege of employee representation under its factory rules and excepted them from the operation of its contracts with the United and the Society. The Society likewise recognized this fact and amended its bylaws to pro- vide that executives, superintendents, foremen, and subforemen be excluded from membership. Allread, Darling, and Schnell admittedly were production super- intendent, employment manager, and master mechanic, respectively, and Dean, Porter, and Stoveall were foremen at `the time of the events related above. Masters was in charge of maintenance in the refrigerator plant. It is clear from the testimony of Hanson and Schnell that foremen and their superiors have the power to recom- 12 National Labor Relations Board v. American Potash & Chemical Corp, 98 F. (2d) 488, 494 (C. C. A. 9), cert. den. 306 U. S. 643, enforcing Matter of American Potash & Chemical Corporgtion and Borax & Potash Workers Union No. 80181, 3 N. L It. B 140. International Association of Machinists, et at. v. National Labor Relations Board, 311 U S. 72, rehearing denied in 311 U. S. 729 , and cases therein cited, enforcing Matter of The Serrick Company and International Union, United Automobile Workers of America, Local No. 4.59, 8 N. L. R. B. 621. SPARKS-WITHINGTON COMPANY 11 mend hiring and discharging. The respondent contends, however, that Baker, Vinton, and Poole - were not, supervisory employees. Kirby Baker was a set-up man and assistant foreman who assigned work in the absence of the foreman. Sparks asserted that Baker was only a set-up man. After the Society amended its bylaws to extend only cooperative buying privileges to executives, superintendents, foremen, and subforemen, Baker was placed in that category by the Society. While there was testimony of fellow employees that Fred Vinton was a foreman in 1937, Vinton, who was one of the original incorporators of the Society, testified that he was contact man between the superintendent and the foremen. In this capacity, it was his duty to locate trouble when operations went wrong, advise the fore- men of his findings, and inform the superintendent if conditions were ' He 1testified that, in, practice, -the' foremen followed his instructions. Poole is paymaster of the horn division, and, as such, directly supervises four or five employees. We find that Allread, Darling, Schnell, Dean, Porter, Stoveall, Baker, Vinton, and Poole are supervisory employees for whose acts the respondent ' is re- sponsible.'4 The respondent relies on the fact that Sparks warned the re- spondent's supervisory employees not to concern themselves with the employees' union activities. In Swift and Company v. National Labor Relations Board,15 the Circuit Court of Appeals said of a simi- lar defense: While the'evidence showed. that. Middaugh,, the, plant manager, and Young, the plant superintendent, repeatedly warned against violations of the National Labor Relations Act and solicitation of union membership on petitioner's premises during working hours, they took no effective means to stop repeated violations of the Act. Furthermore, with respect to the acts of the supervisory foremen, the doctrine of respondeat superior applies and peti- tioner is responsible for the actions of its supervisory foremen, even though it had no actual participation therein. Applying the rule to the present case, it is apparent that the mere fact that Sparks had instructed the supervisory employees not to interfere with the organization of the employees, does not free the respondent of any liability for their actions. In its solicitation of employees, we have observed that the organizers of the Society frequently refrained from mentioning the fact that 14 International Association of Machinists, et at v National Labor Relations Board, 311 U S. 72, rehearing denied in 311 U S 729, and cases therein cited, enforcing Matter of The derrick Corporation and International Union, United Automobile Worlers of Ainer- ica, Local No. 459, 8 N L. R. B. 621. 15 Swift it Company v. National Labor Relations Board, 106 F, (2d) 87 (C C A 10, 1939), modifying Matter of Swift it Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No 641, et at, 7 N L R B 269 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Society was a labor organization. Consequently many employees joined in the belief that they were only becoming members of a cooperative.16 On several occasions, supervisory employees followed this policy and mentioned only the cooperative buying aspect .of the organization. The respondent maintains that the activities of fore- men in urging membership in the Society ' for cooperative buying pur- poses was not in violation of the Act. While this position would have some validity if there were two separate organizations, one engaging in collective bargaining and the other in cooperative buying, that is not the situation here involved. The Society is engaged in both collective bargaining and cooperative buying. As such, it is a labor organization, and any request or suggestion made by the respondent or its supervisory officials that employees join for any purpose what- soever, is a violation of the Act.17 In Matter of McKaig Hatch, Inc.18 we said : We observe that while ordinarily we are not concerned with the various arguments or appeals made by labor organizations in securing members, nevertheless where, as here, it is charged that a labor organization has been fostered by an employer, through acts of agents, it is an important circumstance in deter- mining that issue that membership was secured upon a statement, in effect, that the purpose of the organization was not to represent employees in collective bargaining. The fact that supervisory employees did not mention the Society's collective bargaining aspect, accordingly, aggravates and does not excuse the offense. In connection with its other acts of support of the Society, the respondent's acts of hostility to the United described in Section III A, supra, are noteworthy. By disparaging the United and dis- couraging membership therein, the respondent thereby directed the organization of its employees into channels which it preferred. Support is not limited to acts of favor to the labor organization in question but may equally well take the form of acts which discourage membership in rivals.19 16 Significant in this connection is the statement of pui poses found in the Society's articles and bylaws which at no place uses the term "collective bargaining " Likewise, the name, the United Cooperative Society of Jackson, Inc , does not reveal the fact that the Society is a labor organization. 17 Matter of J. Freezer and Son, Inc. and Amalgamated Clothing Workers of America et al, 3 N. L R . B 120, enforced sub non National Labor Relations Board v J Freezer & Son, Inc., 95 F (2d) 840 (C C A. 4, 1938) 18Matter of McKaig Hatch, Inc and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local No. 1139, 10 N. L R B 33, 45 11 Titan Metal Manufacturing Company v National Labor Relations Board , 106 F (2d) 254 (C C. A. 3, 1939), cert den. 308 U S 615, enforcing Matter of Titan Metal Manu- facturing Company and Federal Labor Union No 19981, 5 N L. R B 577; Matter of Gulf Public Service Company and International Brotherhood of Electrical Workers, Local 790, SPARKS-WITH1NGTON COMPANY 13 We find that the respondent dominated and interfered with the formation and administration of the Society, and contributed support to it; and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharge of Leslie Vinton Leslie Vinton was -originally hired by the respondent as an ap- prentice tool and die maker in 1928. After his apprenticeship was completed, he was laid off and worked successively for two other employers for periods of 2 and 5 months. He returned to the re- spondent's employ in 1934, only to be laid off again in the winter of 1935. He then worked successively for four other employers before returning to the respondent's employ in September 1936. He was rehired on this occasion subject to the express condition that he work on the night shift and refrain from asking for a wage increase until he convinced Schnell, the master mechanic, by the quality of his work that he was entitled to a raise. On May 18, 1937, Vinton was discharged. He was employed by another employer from July 5, 1937, to February 5, 1938. He was then laid off, but reemployed by the same employer on July 5, 1938. Vinton testified at the hearing that he had obtained more work since he left the respondent's em- ploy than he would have had, had he remained in the respondent's employ. In 1934 Vinton had joined an outside labor organization affiliated with the American Federation of Labor, and several arguments with Schnell had ensued. On one occasion the latter inquired if Vin- ton thought that he was doing justice to the respondent in joining the union and on another occasion he criticized Vinton for seeking a wage increase through the union. In March 1937 Vinton joined the United. He was not an officer of the United nor does the record disclose the extent of his activity on its behalf. He was the only employee in the respondent's toolroom who wore a union button although one other employee was a union member. About 3 weeks before he was discharged he accepted a C. I. O. handbill that was being distributed in front of the shop. When he entered the shop, Schnell inquired what it was and sought to take it from him. Vinton refused to surrender it and Schnell sought to jerk it from his hand. Vinton resisted further but finally surrendered the hand- bill on Schnell's promise to return it. A few days later Vinton asked to be assigned to the day shift and pointed out that younger men were on that shift. Schnell refused to transfer him. 18 N L. R B 562, Matter of Gutmann & Company and National Leather Workers Association, 18 N. L. R B. 64; Matter of Texas Mining it Smelting Company and International Union of Mine, Mill, it Smelter Workers, Local No 1,12, 13 N L R B 1163. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 weeks before he was discharged, Porter approached Vin- ton and said : "I understand you are a second John Lewis . . . I am telling you now, you want to watch your step, because if they get anything on you, they are going, to let you go." Porter did not deny this, but sought to explain it as a move to induce Vinton to work harder. The respondent contends that Vinton was discharged because he was inefficient. Schnell and Foremen Dean and Porter testified that Vinton's work was unsatisfactory; that he talked and loafed ex- cessively and scrapped considerable work. They also testified that Vinton had received numerous warnings concerning the quality of his work. Fred Vinton, his uncle and a supervisory employee of the respondent who had originally recommended him to Schnell, testified that during the course of Leslie Vinton's employment with the re- spondent, Schnell frequently complained to him of Leslie Vinton's shortcomings, that he intereceded in his nephew's behalf on many occasions, but that he finally lost interest in his welfare as an em- ployee. Vinton admitted receiving a warning about loafing and talking a few weeks before his discharge. He also admitted scrap- ping several jobs and receiving complaints about the speed of his work. On May 18, 1937, when Vinton arrived for work he was summoned to Schnell's office and informed that he was discharged for spoiling a punch he had worked on the night before. Vinton explained that he had left the job unfinished and claimed that the day man had spoiled the punch. The day man was summoned and he pointed out the part of the punch he had worked on. Schnell testified that after listening to the stories of all concerned he was convinced that Vinton was responsible for the spoilage. He stated that in view of the time the punch was turned over to him, the day man could not, have done much work on it. Although the case is not free from doubt, we find, in view of Vin- ton's record of inefficiency and the warnings that he had received from the respondent in connection with his work, that he was not discharged because of his membership in the United. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A, B, and C above, occurring in connection with the operations of the respondent set forth 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. SPARKS-WITEDNGTON COMPANY V. THE REMEDY 15 Having found that the respondent has dominated and interfered with the formation and administration of the Society,'and has con- tributed support to it, we shall order the respondent to withdraw all recognition from the Society and to disestablish it as the collective bargaining agency for any of its employees. Since the agreement between the respondent and the Society embodies the recognition of the Society as such agent, we shall order the respondent specifically to cease and desist from giving effect to this or any other contract it may have entered into with the Society in respect to rates of pay, wages, hours of employment, or other conditions of employment. We shall further order the respondent to cease and desist from its unfair labor practices and to take certain other action which we deem necessary to effectuate the purposes and policies of the Act. 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 Union, United Automobile Workers of America, Local No. 62, and the United Cooperative Society of Jackson, Inc., 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 United Cooperative Society of Jackson, Inc., and by contributing support thereto, 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. 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 foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, Sparks-Withington Company of Jackson, Michigan, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of The United Cooperative Society of Jackson, Inc., or the formation and administration of any other labor organization of its employees, and from contributing financial or other support to said Society or to any other labor organization of its employees; (b) Giving effect to its contract of June 2, 1938, or any other con- tract it may have entered into, with The United Cooperative Society of Jackson, Inc., in respect to rates of pay, wages, hours of employ- ment, or other conditions of work; (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 purpose of collective bargaining and other mutual aid or protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from - The United Cooperative Society of Jackson, Inc., as a representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish The United Cooperative Society of Jackson, Inc., as such representative; (b) Post notices in conspicuous places in its plants in or adjacent to the City of Jackson, Mich., and maintain such notices for a period of at least sixty (60) consecutive days stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c) and that it will take the affirmative action set forth in 2 (a) of this Order ; (c) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act; be, and it hereby is, dismissed.