Link-Belt Co.

In the Matter of LINK-BELT COMPANY (DODGE PLANT) and AMALGA- MATED ASSOCIATION, IRON, STEEL & TIN WORKERS LOCAL UNION No. 1150, AFFILIATED WITH THE C. I. 0. In the Matter of LINK-BELT COMPANY (EWART PLANT) and AMALGA- MATED ASSOCIATION, IRON, STEEL & TIN WORKERS LOCAL UNION No. 2028, AFFILIATED WITH THE C. I. 0.. Cases Nos. C-1510 and C-1511.-Decided August 7, 1940 Jurisdiction : transmission belt manufacturing industry. Unfair Labor Practices Company-Dominated Union. initiation of, at final meeting of Employees Board, an organization formed and dominated by the respondent-employer's participa- tion through its agent in administration of-employer's contribution of support to: furnishing meeting places; permitting employees to engage in union ac- tivities on company time; compensating employees for time spent on union activities-indicia of domination: recognition without proof of authority; appearance of organization upon dissolution of predecessor organization after validation of the Act; agreement concluded after cursory negotiations and during pending negotiations with outside organization. An employer cannot relieve itself of responsibility for acts of supervisory employee in taking a leading part in the formation of a labor organization where it had full knowledge of, acquiesced in, and indicated its approval of his activities. Discrimination: charges of discrimination, dismissed. Temporary shut-down of department and lay-off of employees held not violation of act where respondent was motivated by reasonable belief that employees had prevented foreman from entering plant and were contem- plating illegal action against respondent. Temporary disciplinary lay-off of four employees not violation of Act where respondent was motivated by reasonable belief that the said employees were violating important rules of the respondent. Remedial Orders : company-dominated union ordered disestablished. Evidence : admissibility of (1) matters affecting the internal affairs of labor organizations and (2) records concerning the instant case kept by the Board's Regional Office. Mr. Lester M. Levin and Mr. Colonel C. Sawyer, for the Board. Davis; Pantzer, Baltzell & Sparks, by Mr. Paul Y. Davis, Mr. Kurt F. Pantzer, Mr. Gustav H. Dongus, and Mr. Frederick D. Ander- son, of Indianapolis, Ind., for the respondent. Mr. Ben Law, of counsel to the Board. 26 N. L. R. B., No. 30. 227 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE On December 30, 1937, Amalgamated Association, Iron, Steel & Tin Workers Local Union No. 1150, herein called Dodge Local 1150, filed with the Regional Director for the Eleventh Region (Indianap- olis, Indiana), herein called the Regional Director, a charge, and on December 21, 1938, and on September 7, 1939, amended charges, alleging that Link-Belt Company, Indianapolis, Indiana, herein called the respondent, had engaged in and was- engaging in unfair labor practices at its Dodge plant; within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 3,1938, Steel'Workers Organizing Committee, herein called the S. W: O. C., filed with the Regional Director a charge, and on January'17, 1939, an amended charge, alleging that the respondent bad, engaged in and was engaging in unfair labor practices within the meaning of the Act at its Ewart plant. On February 21, 1939; and on September 7, 1939, Amalgamated Association, Iron, Steel & Tin Workers Local Union No. 2028, herein called Ewart Local 2028, filed with the Regional Director amended charges alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of the Act at its Ewart plant. On June 24, 1939, the Board, acting pursuant to Article II, Section 37 (b), of National Labor Relations Board-Rules and Regulations- Series I, as amended, ordered that the, case arising from the charge that the respondent engaged in unfair labor practices at its Dodge plant (C-1510); and the case arising from the charge that the respond- ent had engaged in unfair'labor practices at its Ewart plant (C-1511), be consolidated for purposes of hearing and for all other purposes and that he 'record of the hearing should be made.' Upon the above charges and amended charges, the Board, by the Regional Director, issued its complaint 2 dated September 7, 1939, I On June 28, 1939, the Board ordered that the two cases raised by the charges , Cases Nos C-1510 and C-1511, be consolidated for purposes of decision with Matt er of Link-Belt Company and Steel Workers brgani z- ing Committee, Local No. 1150, Case No R-1255, a case concerning the representation of employees at the Dodge plant of the respondent On July 7, 1939, the respondent filed its Motion to Vacate Order of Con- solidation entered June 28, 1939, and on July 13, 1939 . the Board issued its Order denying the said motion On July 18, 1939, the respondent filed its Motion to Reconsider Denial of Motion to Vacate Order of Con- solidation entered ' June 28, 1939, and on July 21, 1939, the Board issued its Order denying the said motion. On September 20, 1939, the Board issued its Amended Order of Consolidation consolidating Cases Nos. C-1510 and C-1511 with the representation case, Case No R-1255, for all purposes On September 21, 1939, the Board issued its Order severing the representation case, Case No R-1255, from Cases Nos. C-1510 and C-1511. 2 On July 14, 1939, the respondent filed its Motion For Disclosure of Charges and Complaint in Cases Nos. XT-C-323 and XI-C-338, now Cases Nos C-1510 and C-1511, and on July 17, 1939, the Board issued its Order denying the said motion LINK-BELT COMPANY 229 against the respondent, alleging' that the, respondent had-'engaged iin and'was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (u)', and (3) and Section 2 (6)' and'(7) of the Act. *Copies'of the complaint accompanied by notices of 'hearing were duly served' upon the respondent, Dodge Local 1150, E wart Local 2028, Link-Belt Employees Association, Inc:, herein* called, the' L. B: E. A., and Federal Labor Union No. 21366 (A. F. of,L.). Concerning the unfair labor practices, the complaint, 'as subse- quently.amended at the hear'ing,3 alleged, in substance:' (1) that during December 1937 and January 1938, the respondent discharged from its Ewart plant and thereafter refused to reinstate five named.em- ployees because of their union activities; (2).that'since about March 1937 the respondent has continuously discriminated against its em- ployees in the Ewait plant, who were members •of or affiliated' with Ewart Local 2028, in the.terms or conditions of their employment in respect to rates of pay, transfers ;to-less' desirable positions and in various 'other ways; (3)' that on June 22, 1937, the'respondent dis- charged 13, named employees from its Dodge plant because of their union activity and that on different occasions thereafter it 'reinstated 'certain of 'the 13` named employees and' again terminated their,em- ployment because of their union activity;' (4) that during November 1938 the respondent locked out from its Dodge plant and laid off for a period of '8 hours 12 named employees because" of their,, union activities; (5) that during November 1938' 'the respondent laid' off from its Dodge plant for a period of '5 days four named employees because of their-union activities; (6)'that in March 1937 and thereafter the respondent discriminated in various 'other'ways against its 'em- ployees in the Dodge plant' who were affiliated'. with ^ Dodge Local 1150 for the purpose of 'discouraging membership in Dodge Local 1150; (7) that in April 1933 the respondent initiated,' formed, spon- sored, and dominated the Employees Board 'at,its Dodge plant and contributed support thereto until April 1937;' (8) that in April 1937 the'Einployees Board changed its, name ' and form'and•becamc known as the L. B. E.,A.; (9) that on or,about April'16, 1937, the respondent initiated and assisted in' the formation of the L. B. E. A. at its Dodge plant and has since dominated, interfered with the administration' of, and contributed to the support -of 'the ^L. B. E. A.,' and; (10) that by these and other acts the respondent interfered with, restrained; and coerced 'its employees in the exercise of the rights guaranteed-in Section 7 of the Act. Pursuant to notice duly served upon the respondent; Dodge Local 1150, Ewalt Local 2028, the L. B. E. A., and Federal Labor Union No. 21366 (A. F. of L.), a hearing was held at Indianapolis; Indiana, 7 On October 5, 1939 , at the close of the presentation of its case the Board moved to amend the complaint in various minor respects . This motion was granted by the Trial Examiner 323429-42-vol 26-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from September 18 to October 24, 1939, before William P. Webb, the- Trial Examiner duly designated by the Board.4 The Board and the respondent were represented by counsel and participated in the hear- ing. Dodge Local 1150, Ewart Local 2028, the L. B. E. A., and Federal Labor Union No. 2136,6 (A. F. of L.) were not represented by counsel nor did they participate in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to,produce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing, on September 18, 1939, the re- spondent filed its answer to the complaint, in which it admitted the allegations in the complaint in respect to interstate commerce, but denied that it had engaged in the unfair labor practices alleged therein, and pleaded certain affirmative defenses. During the course of the hearing the respondent made numerous applications to the Trial Examiner for subpoenas and subpoenas daces tecum requiring certain officials of Dodge Local 1150 and Ewart Local 2028 to produce the records of the said two unions at the hearing for examination by the parties and for introduction in evidence. For the same reasons the respondent applied for subpoenas and subpoenas daces tecum directed to certain officials of the Board's Regional Office for the Eleventh Region requiring them to produce at the hearing all records kept by the Board concerning the cases raised on the charges. Such applications were denied by the Trial Examiner. Also during the course of the hearing the Trial Examiner made various rulings on motions and,on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 14, 1939, the respondent filed a motion to dismiss the proceedings in the complaint cases (Cases Nos. C-1510 and C-1511), and to render a decision in the representation case (Case No. R-1255). At the hearing the Trial Examiner reserved ruling on the first part of this motion and denied the second part. During the hearing the respondent twice moved to dismiss the complaint for lack of evidence and also moved to quash the proceedings for the reason that the Board's Rules and Regulations, Series 2, of July 15, 1939, are unconstitutional, and for other reasons, and for a speedy determination of the case. The Trial Examiner reserved ruling on these four motions until the issuance of his Intermediate Report, discussed below, in which he denied them. The Board has reviewed these rulings by the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. 4 On July 14, 1939, the respondent filed its Motion for Disclosure of Name of Trial Examiner and on July 17, 1939, the Board issued its Order denying the said motion. On September 15. 1939 the respondent filed a second Motion for Disclosure of Name of Trial Examiner . Also on September 15, 1929, the Board issued its Order designating William P. Webb as Trial Examiner LINK-BELT COMPANY 231 On March 23, 1940, . the Trial Examiner filed an Intermediate Report, copies of which were duly served upon all parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2, (6) and (7) of the Act, and that the respondent had not engaged andwas not engaging in unfair labor practices affecting commerce within the meaning of Section 8 (3) of the Act as alleged in the complaint. He recommended that the respondent cease and desist from engaging in unfair .labor practices, that it withdraw all recognition and completely disestablish the L. B. E. A. as a represent- ative of its employees for the purposes of collective bargaining, and that the complaint be dismissed in so far as it alleges that the respond- ent violated Section 8 (3) of the Act. On April 26, 1940, S. W. O. C, on behalf of Dodge Local 1150, filed exceptions to the Intermediate Report On May 6, 1940, the respondent filed exceptions to the Intermediate Report and to the record and proceedings and requested oral argument before the Board. In its exceptions the respondent alleged that the refusal by the Trial Examiner to issue subpoenas directing Dodge Local 1150 to produce its records had deprived the respondent of the right to adduce evidence upon material issues and that such refusal by the Trial Examiner indicated that he would have refused to receive any evidence of the kind which the respondent sought to elicit by its requests for subpoenas of the kind mentioned above. On this basis the respondent applied to the Board for leave to adduce the evidence alleged to have been so excluded by the Trial Examiner and to adduce further evidence upon all issues. The Board has considered this application by the respond- ent and it is hereby denied. On June 18, 1940, pursuant to notice served on the parties, oral argument was had before the Board in Washington, D. C. Therespond- ent was represented by counsel and participated in the argument. The other parties did not appear. At-the oral argument the respond- ent moved that the Board dismiss the exceptions filed on April 26, 1940, by S. W. O. C. on behalf of Dodge Local 1150, alleging as grounds that they are not specific and accordingly, do not follow the Rules and Regulations of the Board. The Board has considered the exceptions in question, the respondent's motion and its argument in support of the motion and finds'that its contention in this respect is without merit. The motion is hereby denied. The, Board- has considered the exceptions filed by S. W. O. C. on behalf of Dodge Local 1150 and by the respondent and, except in so far as said exceptions are consistent 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: 232 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation having its principal office and place of business in Chicago , Illinois. In addition to operating engineering plants at Chicago , Illinois, Philadelphia , Pennsylvania, Sam Francisco , California; Atlanta, Georgia, and Toronto , Canada, the responddnt owns and operates two chain factories and' malleable foundries ,' in Indianapolis , Indiana. ' - The two chain factories and malleable foundries in Indianapolis are designated respectively as the Dodge plant and the Ewart plant and are engaged in the production and' sale of chains for power transmission , elevating and conveying purposes . Only the Dodge and Ewart plants of the respondent are directly involved in this proceeding. During 1938 the estimated cost of raw materials used in manufac- turing operations at the Dodge and Ewart plants was between $2,000,000 and $3,000,000. Between 80 and 90 per cent ' of the raw materials so used had a source outside Indiana. Also during 1938 the 'value of manufactured goods sold by the respondent from the Dodge and Ewart 'plants was approximately $7,000,000, divided about evenly between the' two plants .- Approximately 90 per cent of such manufactured goods were shipped to destinations 'outside Indiana. The number of employees at each of the two plants here involved varids roughly between' 800 and 1200 depending upon general business conditions and other factors.' II. THE LABOR ORGANIZATIONS INVOLVED Amalgamated Association, Iron, Steel &, Tin Workers Local Union No. 1150 is a labor organization affiliated ,with the Congress of In- dustrial Organizations, admitting to membership production and maintenance employees at, the Dodge plant of the respondent. Amalgamated Association, Iron, Steel ' & ,Tin Workers Local Union No. 2028 is a labor organization affiliated with the Congress of In- dustrial Organizations , admitting to, membership production and maintenance employees at the Ewart plant of the respondent., Link-Belt Employees Board of the Dodge plant , herein called Dodge Employees Board, was an unaffiliated , labor organization , consisting of elected representatives from the various departments of the Dodge plant and a representative selected by the respondent , which purported to represent employees , of the respondent at the Dodge plant. Link-Belt Employees Association , Inc., is a labor organization, affiliated with ,the National Independent Unions of America, Inc., admitting to membership, all employees at the Dodge plant except those with executive authority. LINK-BEL'L' COMPANY 233 III . THE UNFAIR LABOR PRACTICES A. Interference with , domination and support of the Employees Board The complaint alleges, and the J•espor dent admits,' that in '] 933 the respondent initiated, sponsored, and contributed to the support of 'the Employees Board.e ' • The evidence shows that the.Employees Board was formed pursuant to a written plan'issued by James S. Watson , vice president of the re- spondent and general manager of the Dodge and Ewart plants, on July 10, 1933, and distributed among employees at."the Dodge and Ewart plants. In so far as the Dodge plant is concerried, the plan provided for creation of a permanent board of representatives , elected by the employees from among themselves , to hold regular meetings with a representative selected by the respondent for the consideration of mutual problems. According to its preamble, the objectives of the plan were to enable the respondent to know the wishes of the em ployees on all mat'te 'rs' pertaining to'them, such as wages, hours of work, working conditions, beneficial' societies , and safety measures, and, "To enable the Link-Belt Company , and its employees, to coop- crate to the fullest extent in accordance with the spirit of the Na- tional Industrial Recovery Act." Basil IT. Booher, a tool grinder and tool repairer in the Dodge plant, subsequently elected president of Dodge Local 1150 , testified that at about the time the Employees Board was being organized , 'Barney Fristo, a foreman in the punch-press department of the Dodge plant, told him that the Dodge Employees Board was being organized to keep outside organizations out of the plant. At the, time Booher was a member of an American Federation of Labor union which was active for a short time in 1933 at the Dodge plant. Frisco did not testify at the hearing. Pursuant'to instructions from the ' respondent , the employees at the Dodge plant held elections for nominating candidates and soon there- after, on or about July 17, 1933 , they held elections within groups apportioned by the respondent for the selection of representatives to serve on the Employees - Board. ' The elections were held in the plant with the respondent furnishing the ballets :, ' Ballots were distributed to the employees by the foremen. 1 , - On the afternoon of July 17 , 1933, after. the election , the repre- sentatives elected by the employees met with Watson, and F: S. O'Neil, the assistant general manager, of the respondent 's, plant , at Indian- ' Although admitting in its answer that it initiated, sponsored, and contributed to the support of the Employees Board, the respondent alleged in its answer and contended at the hearing that it did ndt form, dominate, or interfere with the administration of the Employees Board. 9 Although none of the respondent's actions prior to July 5, 1935, the effective date of the Act, constitute unfair labor practices, events occurring before that date must be considered in order to evaluate subsequent events 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD apolis. Watson and O'Neil explained the purpose, duties, and func- tions of the Employees Board and the representatives selected their chairman. The chairman appointed a committee to draw up rules and regulations. At a meeting on July 24, 1933, the rules and regu- lations prepared by the committee were adopted by the Employees Board subject to approval by the respondent. Such approval, was subsequently given by the respondent. The first regular meeting of the Employees Board was held oa August 8, 1933. Thereafter, regular monthly meetings and some special meetings were held. Such meetings usually occurred in the afternoon, starting at 1:00 or 1:30 p. in. The representatives elected by the employees customarily met in private for half an hour or more to consider the matters to be discussed with the management. One or more representatives of the respondent would then enter the meet- ing to hear and discuss grievances of various kinds, to make sugges- tions, and otherwise to confer with the employees' representatives. Watson, O'Neil, C. V. Loughery, manager of the Dodge plant, and R. N. Phelps, manager of the personnel department for the Dodge and Ewart plants, were the representatives of the respondent who usually met with the Employees Board, although all four of them were not always present. All meetings were held in the plant and the members of theEmployees Board were paid their regular wages by the respondent for the time spent in attending the meetings. The rules and regulations adopted by the Employees Board, upon the approval of the respondent, were printed in book form by the respondent. The official minutes of a meeting of the Employees Board held on October 17, 1933, contain the following account of remarks made at the meeting by O'Neil and Loughery, respectively: Mr. O'Neil then addressed the Board and told them of the Com- pany's preference for handling company and employee business through the Board rather than through any outside organizations. Mr. Loughery discussed the advantages of employee representa- tion through the Board and told of substantial increases in cost as a result of increases in salary already made. At a special meeting of the Employees Board on November 13, 1933, Watson informed those present that he would meet on the next day with an outside union known as Link-Belt Local,' but that the respond- ent would continue the Employees Board regardless of the outcome of the meeting. On April 25, 1934, the Employees Board amended its rules and regulations. The rules and regulations, as amended, were published in book form by the respondent and distributed among em- ployees at the Dodge plant. In part, the rules and regulations, as 7 The record does not disclose the nature of this organization. LINK-BELT COMPANY 235 amended, provided: (1) that the minimum number of representatives should not be less than 7 and the maximum number not more than 13;, (2)-that the respondent should appoint one representative to keep the respondent in touch with the Employees Board; (3) that any person having the right to hire or discharge should not be eligible as a repre- senitative or qualified to vote; (4) that representatives should be elected annually; (5) that the respondent's representative on the Employees Board should. attend all meetings of the board, but should not be entitled to vote; (6) that regular meetings of the Employees Board should be held monthly at a place provided by the respondent and that the respondent should pay average wages to all members while attend- ing meetings; .(7) that all expenses incurred by the Employees Board should be paid by the respondent and that in no case should an employee be put to any expense in connection with the Employees Board; (8) that the bylaws and regulation's might be amended by a two-third vote of the Employees Board; (9) that each employee representative should be free to perform his functions as such in a completely independent manner; and (10) that the Employees Board should not be terminated until after 90 days of consideration by the Employees Board and the respondent. In the operation of the Employees Board there were no meetings of the general body of employees at the Dodge plant. Action taken by the Employees Board was not submitted to the employees for consider- ation or ratification except in so far as representatives might informally discuss such matters with their constituents. At a regular meeting of the Employees Board on June 11, 1935, all employee representatives were present, together with Watson, O'Neil, Loughery, Phelps, and W. H. Maxwell, superintendent of the Dodge plant. After dealing with routine matters, O'Neil suggested that all present express themselves relative to the continuation of the Employ- ees Board. Seven of the employee representatives declared that they favored-its continuation. The five representatives of the respondent who were present then made separate statements recommending that the Employees Board continue to function. An election of representatives to constitute the Employees Board for the' year 1937 was held at the Dodge plant on January 14, 1937. The following nine men were elected: Name Group Job Fred Kepner-------------------------------------- 1 Assembler Department 2800. Art Hayes----------------------------------------- 2 Screw machine operator William Dudziak-------------------------------- 3 Tool maker in tool room. Bradley Stone------------------------------------- 4 Screw machine operator Orlando Taylor----------------------------------- 5 Inspector beat treat department. Joe Maish--------------------------------------- 6 Watchman. Roy M Swartz- 7 Head of order department Walter Harvey-------------------------------- 8 Machinist Glen Cox ------------------------------------------ 9 Rolling machine operator 11 1 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Soon . after the election, the representatives selected William Dudziak as chairman of the Employees Board and Roy M. Swartz as secretary. Minutes of the meetings of the Employees Board in 1937 were taken by Roy M. Swartz, head of the, order department at the Dodge plant, who had been electedas representative of group No. 7, which consisted of about 100 office employees., Swartz testified that after taking the minutes in longhand he had them typed by one of the respondent's stenographers. -He then submitted copies, to Dudziak, chairman,of the Employees Board, and, to Loughery, manager of the Dodge plant, for approval. If approved; Swartz, then had the minutes multigraphed m .the respondent's stenographic, department and copies were given to each <;employ, ee representative, for distribution in their respective groups. , . The minutes, prepared by Swartz as described above, of a meeting of the Employees Board held on February 16,1937, contain the follow ing paragraph: "The By-Laws Committee reported their suggestions for revisions, in the ,By-Laws which were discussed generally, and the change in Article V; . Section 2, ^ was .discussed rather; thoroughly, and after the Management voiced their views with respect, to this change, a motion was made by Mr. Kepner, and seconded by Mr. Taylor, that the request for this ;change in the By-Laws be withdrawn, and the motion carried." Orlando Taylor testified that the above-mentioned proposed change in, the„bylaws ;of the Employees Board .h ad, originally been made, in the form of a motion bytFred Kepner, seconded by Taylor. The change, so proposed,, had as its objective, according to Taylor, ". . . that, representatives for the employees might have a littleimore power when it, came, to laying a man off, discharging an employee or hiring an employee." When Kepner's, motion, was brought up at the meeting of the Employees Board on February 16,1937, F. S. O'Neil, the assist- ant general manager of the Dodge and Ewart plants, was present. Taylor testified that, O'Neil objected vigorously; told Dudziak, the chairman of:the Employees Board, that he did not like the attitude the latter was taking; criticized Kepner for making the motion and asked Taylor why he had seconded it., O'Neil then stated that lie wanted it understood that the respondent ,could still run its • own, business., Taylor testified that after hearing O'Neil's,remarks,, he and Kepner felt they were endangering their jobs. Kepner accordingly moved to withdraw the 'original motion and Taylor seconded the motion to withdraw. Concerning the above-discussed incident, O'Neil testified that he did not remember whether or not lie told Dudziak that he did not like his attitude and that he had- simply explained, without bitterness, the respondent's position in the matter. He added that it was the purpose of such meetings to permit both the employee representatives and , 'LINK-BELT COMPANY 237 representatives of the-respondent to so state their positions on'mutual problems., 'Other,persons present at the meeting did. not,.testify con- cerning-events after Kepner made his original, motion.,, On the basis of the above evidence' we find • that Taylor's account of the remarks made by O'Neil is substantially correct. Regular meetings of the Employees Board continued until April 16, 1937, the system of its operation remaining essentially as described in yariou's paragraphs above for almost a year and 9 months after July 5, 1935, the effective date of 'the Act. It is undisputed that the respond- ent initiated; sponsored, and contributed to , the support of, the Em- ployees Board,. and we so find. On the basis of all the evidence we find the respondent also dominated, contributed to the support of, and interfered with the administration of the Employees Board until April,16, 1937. Dodge Local 1150 came into existence about December 1936. at both the Dodge and Ewart plants of the respondent. Ewart Local 2028 was not organized as a separate local union of the Amalgamated Association,, -Iron, Steel & Tin Workers until June,1937. In February 1937 Dodge Local 1150 selected its first regular officers, those being: president, Basil Booker, an employee in the tool, room of the Dodge plant; recording 'secretary, 'Frances Cox, an inspector in department 229 at the Dodge plant; treasurer, Carl Hyatt, a tool maker in theEwart plant; and financial secretary, Norton Bray, an employee at the Ewart plant. Soon after the selection of its officers, Dodge Local 1150 started an organizing campaign among employees at the two plants,of the respondent in Indianapolis. , , ; ,•, Orlando Taylor, then an employee representative on the Employee Board at the Dodge plant, testified ,that-in February,1937 he had a short conversation concerning Dodge Local 1150, with his foreman', Barney Fristo, in the plant during working hours. , According ,to Taylor, Fristo stated, referring to Dodge Local '1150, "Well, it may be- possible they will organize. I can't, help that, but they are never going to be able to make me work a man unless I want him to,work.',' As previously stated,,Fristo did not.testify. , ' , , On -March 11,A937, the respondent posted the following, notice; signed by C. V. Loughery, manager, of the Dodge plant, on its bulletin boards at the Dodge plant: 'We are told 'there is solicitation going on in our plant 'for members in an organization. 'Employees have raised quite' a few questions about this activity,'which need to be answered: 'It is not necessary for any employee to join any thing to hold his job, for the same law, that gives'; man the'right to'join also gives any other man the right not to join. Coercion, threatening, and intimidating by anyone, or the solicitation of membership in any organization is strictly for- 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bidden on company property and any person disregarding this rule is an undesirable employee for this company to retain. As always, the company is ready to listen to and answer fairly any questions which come up, affecting our relations. Although it is clear that at about the time the respondent posted the above notice Dodge Local 1150 was engaged in an organizing campaign among employees at the Dodge and Ewart plants, the evidence does not show that, at that time, persons acting on behalf of Dodge Local 1150 were guilty of coercion, threatening, or intimida- tion. The limited evidence available on the point does indicate, however, that such persons did, on occasion, solicit for membership in Dodge Local 1150 in the Dodge plant during working hours. Apparently the notice posted by the respondent on March 11, 1937, was directed at the organizational efforts of Dodge Local 1150. In so far as the record discloses, aside from the Employees Board, there was no other labor organization active in the plant at that time. B. Domination of and interference with the L. B. E. A. On April 16, 1937, 4 days after the United States Supreme Court upheld the constitutionality of the Act,8 the Dodge Employees Board held its last meeting. The minutes of this meeting., prepared by Roy M. Swartz and' posted in the Dodge plant, state in substance: (1) that the Employees Board held its regular monthly'meeting on April 16, 1937, and all members were present, including F. S. O'Neil, assistant general manager of the Dodge and Ewart plants, acting as the respondent's representative; (2) that also present, on invitation from the Employees Board, were C. V. Loughery, manager of the Dodge plant, W. H. Maxwell, superintendent of the Dodge plant, and R. N. Phelps, manager of the personnel department at the Dodge and Ewart plants; (3) that the Employees Board, as then constituted, would require some revision in its bylaws to avoid violation of the Wagner Labor Law; and (4) that in the opinion of members of the Employees Board, the benefits received by the employees through the efforts of the Employees Board were greater than they realized. The minutes were signed by Swartz as secretary of the Employees Board. The evidence concerning this meeting of the Employees Board on April 16, 1937, will be fully discussed below. It is undisputed, how- ever, that the L. B. E. A. was organized at this meeting by five employee representatives of the Employees Board after the departure of O'Neil, Loughery, Maxwell, and Phelps from the meeting. - 8 N L R. B. v Jones & Laughlin Steel Corp , 301 U S 1, 1everseng .Tones & Laughlin Steel Corp v N L R B , 85 F (2d) 998 (C C A 5), and enforcing Matter of Jones & Laughlin Steel Corporation and Amalga. mated Association of Iron, Steel & Tin Workers of North America, Beaver Valley Lodge No 200, 1 N. L it. B. 503. LINK-BELT COMPANY 239 The part taken by Swartz, as described below, at the meeting of April 16, 1937, and in the subsequent affairs of the L. B. E. A. was a significant and often a determinative factor influencing the formation and the course of action of the L. B. E. A. It is, therefore, necessary at this point to examine Swartz's relationship with the respondent. Swartz testified that he had been employed by the respondent in the Dodge plant for 27 years. He started work as an office boy and there- after had experience in various departments of the plant. In 1929 Swartz was promoted to the position of head of the order department. He held this position during the entire period under consideration here. As head of the order department, Swartz's salary was $200 a month. He had, according to his testimony, about 15 clerks working under him at an average salary of about $100 a month. Swartz had authority to recommend hiring and discharging of employees in his department. His immediate superior was Sidney L. Houck, production manager. Previous to serving as secretary of the Employees Board in 1937,9 Swartz had been active in a mutual benefit society among the re- spondent's employees.10 In 1937 he became a district representative of the National Independent Unions of America, Inc., an organization which the L. B. E. A. joined shortly after its formation. Orlando Taylor, Glen Cox, Swartz, O'Neil, Loughery, and Phelps all testified concerning events at the meeting of the Employees Board on April 16, 1937. Their respective accounts differ somewhat in details. The meeting was held in the conference room of the plant. It started at 1:30 p. in. with only the nine employee representatives being present. Some ordinary business was discussed and then Swartz announced that, due to a recent decision of the United States Supreme Court validating the Wagner Act, the Employees Board would have to either change its bylaws or disband. Enoch Ballard 11 suggested the formation of a new union and a general discussion en- sued. Four of the members present were in favor of dissolving the Employees Board and opposed the formation of a new union. They were Orlando Taylor, William Dudziak, Joe Marsh, and Glen Cox. Five others, Roy Swartz, Enoch Ballard, Fred Kepner, Walter Harvey, and Bradley Stone, favored a new organization. Stone suggested that he knew a man in Anderson, Indiana, who could help them organize. 9 Swartz was elected from a group of office workers as their representative on the Employees Board by a vote of 72 for Swartz to 21 for his opponent, Walter Harris, a draftsman iU This was an organization composed of employees of the respondent which, in the event of sickness or death among them, provided funds for their benefit ii According to the available evidence, Enoch Ballard was not one of the employee representatives elected to the Employees Board in January 1937. The minutes and accounts of the meeting of April 16, 1937, indicate that he was by that time either a member or acting member of the Employees Board, although his status is not specifically explained Art Hayes, one of the employee representatives elected in January 1937, is not mentioned as being present at the meeting of April 16, 1937 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At this point, about 2:00 p. in., the officials of the respondent, O'Neil, Loughery, Maxwell, and Phelps, entered the meeting, Lough- ery stated that something would have to be done about the Employees Board and Swartz, replied, "We have already discussed that." - One of the employee representatives asked Loughery what he thought about it new organization and Loughery•replied that he could say nothing on the.subject. According to Cox, Swartz then said, "Well, we aregoing to organize it anyhow," and Loughery replied, "It looks like you fellows would, be able, to organize a pretty good union." Loughery did not deny making such a statement. The matter of a name for the proposed new organization was then discussed. Swartz suggested "Link-Belt Union." Taylor and Cox testified that O'Neil then 'stated he would rather have it called "Link Belt Association " O'Neil admitted that he might have said he would prefer to have the organization called an association rather than a union. Soon thereafter, O'Neil, Loughery, Maxwell, and Phelps left the meeting. The nine employee representatives remained in the conference room and further discussed the merits of a new organization. Swartz testified that Dudziak, Taylor, Cox,. and Marsh wanted everyone to join Dodge Local 1150, but that the other men preferred a union of their own because it would be cheaper and because they felt that they could bargain more successfully with the respondent than could out- siders. Thefive men favoring a new union then decided to organize and selected as temporary officers, Enoch Ballard, president, Roy M. Swartz, 'secretary, and Fred Kepner, treasurer., The -.meeting ad- journed about 4:30'p. in. All of the employees present at this meeting were paid by the respondent for their time spent in attendance. The name Link-Belt Employees Association, substantially. that suggested by O'Neil, was later adopted for the new organization. Swartz was the only one of the nine employee representatives on the Employees Board at the meeting of April 16, 1937, who was, a supervisory employee. It is clear from the evidence that he took an active and leading part in the formation of the L. B. E: A. The re- spondent's officials who attended the meeting vigorously denied; how- ever, that Swartz acted in this respect upon, instructions-from them. Witnesses for the respondent testified that Swartz'enjoyed activities of this nature and pointed to his' connections with the mutual benefit society, previously mentioned, as typical of his interest in organiza- tional affairs. Swartz also testified, in substance, that his work on behalf of the Employees Board and the L. B: E. A. was entirely voluntary. Even though such testimony be accepted as true, in'view of the supervisory nature of his position, the respondent cannot dis- associate itself of responsibility for Swartz's actions by merely showing that it did not order him to take them. It is clear that the respondent's executive officials knew at the meeting of the Employees Board on LINK-BELT COMPANY 241 April 16, 1937,, that Swartz was taking a leading part in organizing the L. B. E'. ,A. Their' attitude, as shown by their statements at the meet= ing, was one of approval of his actions and was in striking contrast to; their attitude toward the organizational attempts of Dodge Local 1150,,as expressed, in `the notice posted,on March 11, 1937, warning the employees against solicitation of members in the plant and stating emphatically that it, was "not" necessary to join any organization to hold a job. Under the circumstances,, the respondent, acquiesced in, indicated its approval of, and apparently ratified Swartz's activities in helping to form the L. B. E. A. Thus,,. all, of the evidence discloses that the idea of forming the L. B. E. A. was conceived and executed by members of the Employees Board, an organization formed and dominated by the, respondent. The L. B. E. A. was formed, by such members, one of whom was ' a supervisory employee, at a meeting on the respondent's time and property, with,the knowledge, consent, and, approval of the respond- ent's executives. , i ,,The Employees. Board, as such, apparently ceased to function or exist after Swartz completed ,the act of preparing the minutes of the meeting of April 16, 1937. The evidence indicates that no official announcements of its demise were made by either the respondent or the Employees Board to the employees at the Dodge plant. - On April, 17, ' 1937, Orlando Taylor joined Dodge Local 11150,. The following Monday he secured his union button and wore it to work. On the following day Taylor's 'foreman, Barney Fristo, noticed the button and warned Taylor'that he would have to be careful: ''Clarence C. DeWitt, an employee in department 216 in the plant,'te'stified that while he was at work in May or June 1937, he had a conversation with his'foreman, Paul Hubbell, in which the latter asked him if there was anything wrong with him (Hubbell) as a foreman. 'DeWitt replied that there was not and Hubbell then said, according to DeWitt, "Well, what is the matter with the"company? Ain't 'the company treating you, right? I heard'you' joined the C. I. O. and that you are active in organizing. I don't 'think that is the right thing to do." The Trial Examiner found that'Hubbell's partial denial of DeWitt's testimony was not convincing: We find that Hubbell spoke to DeWitt substantially 's recited above. On or about. April 20, 11937j, printed handbills were, passed out on behalf of the L. B. E. A. to the employees,at the.plant,gates. , The handbills advertised a mass meeting to be held at.8:00_ p: 1m., April 21, 1937, and stated in part: Do you want to represent yourself or do'you want an outsider to represent,you? Why not join an organization made up entirely of' Link.Belt employees. , The Wagner Labor Law gives us the 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same power to represent you as any other labor organization in collective bargaining with the Company. The Link-Belt Com- pany has nothing to do with our organization, it is controlled and operated by employees only. To insure your rights, attend this meeting without fail. Everybody invited. Link-Belt Employ- ees Association. The mass meeting was held as advertised with Ballard presiding. Two men from the Delco-Remy plant at Anderson, Indiana, and Swartz were also on the speakers' platform. Swartz introduced the two men from Anderson to the audience and they made talks and answered questions about a union in the Delco-Remy plant. Basil Booher, who attended the meeting, testified that during the previous afternoon Swartz showed the two men from Anderson, Indiana, around the respondent's plant. This testimony was not refuted. During the meeting, Gene Whittaker, a representative of the S. W. 0. C., not an employee of the respondent, asked to be recognized by the chairman., His request was denied and he was forcibly pushed to the rear of the crowd by Swartz, Kepner, and Ballard, all employee representatives on the Employees Board which had, within the week, ceased to function. Booher protested the silencing of Whittaker but was refused recognition by the chairman. About this time a petition was circulated ' throughout the Dodge plant by Swartz and others. It bore the following heading: Under the provisions of the Wagner Labor Act, ' we are per- mitted to choose our own representatives or organization in deal- ing with the Company for which we work. We the undersigned desire to form our own organization within the ranks of the employees. , We feel that such an organization would accomplish more without any, interference from any outside source what- soever. Unless 51 % or more of the Link-Belt Employees agree to said organization, this proposition will be dropped. (Sgd .) LINK-BELT EMPLOYEES ASSOCIATION, ENOCH F. BALLARD, President, ROY M. SWARTZ, Secretary, FRED KEPNER, Treasurer, Temporary Oficers. ' The minutes of various meetings of the L. B. E. A., kept by Swartz and authenticated by him at the hearing, were introduced in evi- dence. Such minutes for the mass meeting of April 21, 1937; 'state in part: Mr. Swartz amplified the fact that the present officers were only temporary and they intended to relinquish their duties just as soon as the organization was built up and able to reorganize and elect LINK-BELT COMPANY 243 permanent officers. ' He also reminded you of the very con- venient manner that-purchases can be made without the ready cash through the company and how nice it is to have a bottle of Coca Cola in -these coming summer months all of which will be retained if our organization is in power. - Minutes of another mass meeting on behalf of the L. B. E. A. held on April 28, 1937, state in part: Mr. Swartz gave a short talk indicating that our organization could do more for the employees than any other organization and best of all at a more economical cost. He also repeated that if our opponents would be the collective bargaining agents it is doubtful if many of the privileges we now have will be re- tained by the company. Such as the Beneficial Society and Credit Union, possibly would be discontinued. Swartz testified that by his use of the word "opponents" above, he referred to the C. I. 0. As noted, Swartz had been active in the beneficial ^ society refered to.12 Swartz also testified that all his statements that rights might be taken away from the employees should Dodge Local 1150 obtain bargaining rights were purely as- sumptions on his part. Apparently, the rights and privileges referred to were not taken away by the respondent, although, as shown below, Dodge Local 1150 subsequently obtained recognition by the respondent as bargaining agent for employees at the Dodge plant. The fact cannot be overlooked, however, that such statements were made by a supervisory employee of the respondent whose previous actions in connection with the L. B. E. A. had been acquiesced in and tacitly approved by the respondent and who spoke with apparent knowledge and authority upon the matters referred to. In the latter part of April 1937, Swartz, Ballard, Kepner, and Stone made a-trip to Anderson, Indiana,'arid conferred with officers of the Delco-Remy Employees Association. These persons advised them to incorporate the L. B. E. A. It took, the above-named employees all-of 1 day to make the trip to Anderson and they quit work during that day. No deduction was made from Swartz's salary on account of his absence from work. The L. B. E. A. was incorporated as a labor organization in the State of Indiana on April 22, 1937. The incorporators were Roy M. Swartz, Enoch Ballard, and Fred Kepner. Basil Booher and Reid F. Bell testified that about May 1, 1937, they were on a grievance committee for Dodge Local 1150 which went in to see Loughery and Maxwell concerning four members who had been temporarily laid off.13 Both men testified that just before 12 See footnote 10, supra. 13 These lay-offs were not the subject of any allegation in the complaint 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entering the plant office, about 1:00 'or 1:30 p. m., ,they saw Swartz seated in a car parked near the curb in front of the office allegedly collecting dues for the L. B. E. A. from employees who were leaving the plant and walking over to him. When the grievance committee was admitted into the office to see Maxwell and Louighery, Booker told them what he had seen, as described above, and asked them to look out the! window to see for themselves. It is undisputed that Maxwell and Loughery refused to, look, although members of the g'rievance' committee called their attentioh to the fact' that'collecting and' paying union dues on the respondent's premises or during'working hours 'was against its'rules. LOughery admitted'-that he made no subsequent investigation' of Swartz's alleged violation of the' respon- dent's rules. On May 4, ' 1937, Dodge Local 1150 requested J. S. Watson, vice president of the respondent and general manager of the Dodge and Ewart. plants, to meet its negotiating committee for the purpose of considering a contract. Pursuant to this request a meeting was held; as :discussed below, between representatives of Dodge Local 1150 and the respondent on May 12, 1937. 1 In the meantime;' on May 5, 1937, members of the L. B. E. A. received information from an undisclosed source. that Dodge' Local 1150. had asked for, recognition as bargaining agent for the employees at the Dodge plant. Upon directions from Swartz, Ballard, the, tem- porary president of the L. B. E. A.,.immediately called an emergency meeting of various leaders in the organization to consider a course of action. 'This meeting was held in Swartz's home on the morning of May •5, 1937, during working hours. Those present included Swartz, Ballard, Kepner, and Stone, all formerly of the Employees Board, an attorney named-Leland Morgan, who was employed, by the L. B..E, A., and five others. -The employees who attended the meeting had to leave their work to do so. No deduction- was made from Swartz's salary for the time .he lost. from work while attending the meeting.. Wages of the other employees 'attending were deducted. .. 11 During the course of the meeting, Swartz telephoned to, the secretary- of; an employees association in the 'respondent's plant in.Chicago and had him read over the telephone the wording of an agreement which the said employees association had with the respondent concerning employees of the respondent-m'Chicago. _ Swartz gave this•form'for an agreement to Morgan, the attorney, and the latter drew up-.a somewhat similar document worded+in the form of a petition. Some- one'at the meeting telephoned C. V. Loughery, manager of the Dodge plant, and arranged a meeting with him for the same afternoon. Swartz testified' that, although' he could not remember -for sure,' he might have been the one who made the telephone call to Loughery. LINK-BELT COMPANY 245 Pursuant to the appointment so arranged , the same persons who met at Swartz's home on the morning of May 5, 1937 , met with Loughery at about 2 :30 p. in. in the afternoon of the same day and presented their petition for recognition by the respondent of the L. B. E. A. as bargaining agent for employees at the Dodge plant. Swartz testified that Loughery agreed to grant the request of the L. B. E. A. for bargaining rights on the condition that it would pro- duce evidence of majority representation . Loughery testified that he refused to accord recognition to the L. B. E. A. at the meeting of May 5, 1937 , because he felt that its petition was not supported by evidence of majority, representation. On the night of May 5, 1937 , at a meeting of officers of the L. B. E. A., Swartz announced that he was confident that the respondent would accept the L. B. E. A. as bargaining agent. On May 7, 1937 , Swartz executed an affidavit to the effect that the L. B. E. A. had, as members , a majority of the employees of the Dodge plant and attached to this affidavit a list of 634 names of alleged members of the L. B. E. A. who were employees at the Dodge plant. There were at the time approximately 1,200 employees at the Dodge plant. This affidavit and list of names was presented to the respondent by the L. B. E. A. Loughery and other officials of the respondent tes- tified that they had the list carefully checked against current pay rolls and that they found 52 per cent of the employees at the Dodge plant were represented on the list. They were , accordingly satisfied that the L. B. E. A. had majority representation and was entitled to recognition. On May 10, 1937, the respondent and the L. B. E. A . executed the following agreement: This agreement, dated May 10, . 1937 , between Link-Belt Com- pany and the Link-Belt Employees Association , Inc., a labor association of workers employed by said Corporation: The association has presented to the Corporation signatures 14 from well over fifty per cent (50%) of the employees working at the Dodge plant, Indianapolis , Indiana, authorizing the formation of said Association , and authorizing it to act as the collective bargaining agent for the employees of said Plant. In accordance with the provision of Section 9 (a) of the National Labor Rela- tions Act, the Corporation recognizes said association as the ex- clusive representative of all the employees in said Dodge Plant of the Link-Belt Company and representatives of the Corporation when so requested will meet with representatives of the Associa- 14 In so far as the record discloses, the L. B . E A did not submit the signatures of its members to the respondent as stated in the agreement . The list of 634 names which it did submit was a typewritten list sworn to by Swartz. R N. Phelps, manager of the personnel department at the Dodge and Ewart plants, testified that it was this list which he had had checked, by subordinates , against the respondent's pay roll to determine the question of majority representation 323429-42-vol. 26-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion for the purpose of considering the conclusion of an agreement with respect to wages, hours of employment and other conditions of employment.l5 LINK-BELT COMPANY, By C. V. LOUGHERY, Mgr. Dodge Plant. LINK-BELT EMPLOYEES ASSOCIATION, INC., By ENOCH L. BALLARD, .Temporary President. Witness: Louis GOODwIN. On May 11, 1937, the respondent posted a notice in the Dodge plant stating that, having satisfied itself 'that the L. B. E. A. repre- sented a majority of the employees at the Dodge plant, it had signed an agreement with the L., B. E. A. recognizing it as the sole bargaining agency for such employees. On May 12, 1937, pursuant to the request made on May 4 by Dodge Local 1150, J. S. Watson, representing the'respondent, met with a committee of representatives of Dodge Local 1150. James Robb, Field Director for the S. W. O. C., acting as spokesman for Dodge Local 1150, told Watson that it was the purpose of the committee to negotiate a contract between the respondent and Dodge Local 1150 covering the production employees at both the Dodge and Ewart plants. According to the undisputed account of the meeting given by Basil Booher, who was present, Watson informed the committee that the respondent had already negotiated a contract with one union. An extensive discussion ensued after which Watson stated that Dodge Local 1150 would have to produce evidence of its membership at the plants. The committee then suggested that the membership cards of Dodge Local 1150 be submitted, along with the respondent's pay rolls, to the National Labor Relations Board for purposes of a compari- son. Watson refused to follow this suggestion, but made a counter- suggestion that the cards be turned over to C. V. Loughery, manager of the Dodge plant, for a comparison by him. Dodge Local 1150 refused to follow this suggestion and the meeting ended. On May 19, 1937, Dodge Local 1150 filed with the Regional Director a petition for an investigation and certification of representatives at both the Dodge and Ewart plants. It should be stated at this point that, while the events described above were occurring at the Dodge plant of the respondent, employer- employee relations at the respondent's Ewart plant were, in some respects, following a similar course. Thus, in 1933 the respondent initiated and sponsored, at the Ewart plant an employees board set 15 Apparently no written agreement with respect to wages, hours of employment and other conditions of employment was ever executed between the respondent and the L. B E. A. In the latter part of May 1937, these two parties did, however , confer with respect to wage increases and on June 1, 1937 , the respondent granted a general wage increase at both the Dodge and Ewart plants. LINK-BELT COMPANY 247 tip in the same general manner as the Employees Board at the Dodge plant. In the spring of 1937 the employees board at the Ewart plant ceased to exist as such and soon thereafter an organization called the Ewart Employees Association, Inc., was established and solicited members at the Ewart plant.1e F. S. O'Neil, who, in addition to being assistant general manager of the Indianapolis plants of the respondent, acted as general manager of the Ewart plant, testified that soon after it was organized the Ewart Employees Association, Inc., submitted satisfactory proof to the respondent of majority representation in the Ewart plant. On May 18, 1937, the respondent posted a notice stating that it had signed an agreement recognizing the Ewart Employees Association, Inc., as the collective bargaining agent for employees at the Ewart plant. On June 9, 1937, the respondent, Dodge Local 1150, the L. B. E. A., and the Ewart Employees Association, Inc., entered into an agree- ment that a consent election should be held at the Dodge and Ewart plants under the supervision of the Regional Director. Pursuant to the agreement, elections were held on June 11, 1937. Contestants at the Dodge plant were Dodge Local 1150 and the L. B. E. A. Contestants at the Ewart plant were Dodge Local 1150 and the Ewart Employees Association, Inc. At the Dodge plant, Dodge Local 1150 was successful by a vote of 515 to 463. At the Ewart plant the Ewart Employees Association, Inc., was successful by a vote of 539 to 325. A short time after the election on June 11, 1937, the membership of Dodge Local 1150 was split up and those members who were em- ployed in the Ewart plant organized Ewart Local 2028. The two locals have since remained entirely separate. Having been successful in the election at the Dodge plant, on June 21, 1937, Dodge Local 1150 submitted to the respondent a pro- posed contract and requested that a conference be held by the parties to consider its terms. On June 25, 1937, the respondent posted a notice announcing that, pursuant to the results of the election, it recognized Dodge Local 1150 as the exclusive bargaining agency for employees at the Dodge plant and that a conference had been arranged - for consideration of a proposed contract submitted by Dodge Local 1150. During the last part of June and in July and August 1937 repre- sentatives of Dodge Local 1150 and the respondent met eight or nine times for the purpose of considering a contract covering wages, hours, and- working conditions. These negotiations ended September 1, 1937, when, in lieu of a contract, the respondent issued a "statement of policy" in which it declared its recognition of Dodge Local 1150 as the 16 The complaint does not allege that the employees board at the Ewart plant or the Ewart Employees Association, Inc., were dominated or interfered with by the respondent. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive bargaining agency for production employees at the Dodge plant and set forth various other matters relative to the employer- employee relationship. This "statement of policy" was accepted by Dodge Local 1150.17 Thereafter, pursuant to the "statement of policy," grievance committees for Dodge Local 1150 met with representatives of. the respondent as the need arose. The respondent paid members of such grievance committees for the time they were absent from their work while conferring with the respondent. On January 7, 1939, Dodge Local 1150 requested that the respond- ent agree to a contract to replace the "statement of policy." The respondent replied in substance that, due to the lapse of time since the election of June 11, 1937, it would require satisfactory proof that Dodge Local 1150 still represented a majority of the employees at the Dodge plant before it would consider a contract. On January 14, 1939, Dodge Local 1150 filed a petition with the Regional Director requesting an investigation and certification of representatives.18 Pursuant to the agreement of June 9, 1937, among all the parties for the consent election held June 11, 1937, certain classifications of employees at the Dodge plant were not entitled to vote. Employees so excluded were all clerical employees in the shop, 'watchmen, cafe- teria employees, and all salaried employees in the office. On June 30, 1937, the L. B. E. A., claiming to represent a majority of the above- described employees," asked the respondent to recognize it as bar- gaining agent for them. The respondent replied that upon satisfac- tory proof of majority representation it would recognize the L. B. E. A. as requested. Thereafter the L. B. E. A. submitted a list of its members among such employees to the respondent. The list carried an affidavit by Harold Phillips, then recording secretary of the L. B. E. A., to the effect that the list was true and accurate. On August 5, 1937, the respondent and the L. B. E. A. entered into an agreement which stated in substance that, having received proof of majority representation, the respondent recognized the 17 For the purpose , among others, of showing that its relationship with the Ewart Employees Association, Inc , after that organization won the election at the Ewart plant, was substantially the same as its relation- ship with Dodge Local 1150 after the latter won the election at the Dodge plant, the respondent introduced undisputed evidence that , (1) on June 25 , 1937, the respondent posted a notice in the Ewart plant announcing the selection of Ewart Employees Association , Inc , by a majority of the employees and announcing that a conference had been arranged between that organization and the respondent for consideration of their future relations ; (2) that soon thereafter the Ewart Employees Association , Inc , submitted a proposed contract to the respondent, (3) that, although a series of conferences ensued, the parties could not agree on the terms of a contract , and (4) that on August 31, 1939, the respondent issued, and the Ewart Employees Association, Inc , accepted, a "statement of policy" by which the respondent recognized the Ewart Employees Asso- ciation, Inc , as bargaining agent for the employees at the Ewart plant and which contained terms similar in many respects to the "statement of policy" which the respondent issued at the Dodge plant recognizing Dodge Local 1150. i6 It was this petition which gave rise to Matter of Link-Belt Company and Steel Workers Organizing Com- mittee, Local No. 1150, Case No R-1255 See footnote 1, supra iY Apparently Dodge Local 1150 has at no time claimed to represent employees at the Dodge plant within the classifications set forth above - LINK-BELT COMPANY 249 L. B. E. A. as the exclusive bargaining agent for office employees, clerical help in the shop, watchmen, and cafeteria employees at the Dodge -plant and that it would bargain with the L. B. E. A., upon request, concerning the wages, hours, and working conditions of such employees. Between June 11, 1937, the date of the consent election, and October 6, 1937, the L. B. E. A. continued to hold regular meetings and to solicit members among all classes of employees at the Dodge plant. On June 16, 1937, the L. B. E. A. elected permanent officers. Ballard, Kepner, and Swartz were selected as trustees. Swartz remained outstandingly active in the affairs of the organization at least until October 6, 1937. He testified that he made various tele- phone calls on behalf *of the L. B. E. A. These included calls to the secretary of an employees association at the respondent's plant in Chicago and others to Anderson, Indiana, ' the headquarters of the National Independent Unions of America, Inc. It was largely through Swartz's influence that the L. B. E. A. joined the above- named organization. Swartz admitted that on occasion he advised the L. B. E. A. in regard to information that came to him in the course of his employment as head of the order department at the Dodge plant. The official minutes for the meeting of the L. B. E. A. on October 6, 1937, contain the following notation: A motion was made and seconded to suspend dues paying and discontinue meeting with all present members in good standing until further notice. Harold Phillips, who was elected recording secretary of the L. B. E. A. on June 9, 1937, testified that after October 6, 1937, the L. B. E. A. held no more meetings in 1937 and that it held none in 1938. The organization did not, however, disband. According to Phillips, the L. B. E. A. held a meeting in February 1939 before the hearing on the representation case at the Dodge plant.20 The history of the L. B. E. A. since that time does not appear in the record. Summing up, the evidence shows that on or about July 1933 the respondent initiated and sponsored the Employees Board, and that until April 1937 it dominated, contributed to the support of, and interfered with the administration of the Employees Board. At a regular meeting of the Employees Board on April 16, 1937, a majority of its members, including Roy M. Swartz, a supervisory employee of the respondent, established the L. B. E. A. During part of this meeting four important executives of the respondent were present and participated in the discussion concerning formation of the L. B. E. A. They not only indicated their approval of its organization, but, in effect, ratified the action taken in establishing it by a majority of the 20 Matter of Link-Belt Company and Steel Workers Organizing Committee, Local No. 1150, Case No. R-1255. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members of the Employees Board. There is no showing on the record that the respondent at any time officially informed its employees at the Dodge plant that the Employees Board was dissolved, that it had withdrawn or was withdrawing its recognition of the Employees Board, or that it had ceased or was ceasing to contribute to the support of and to participating in the administration of the Employees Board." Tile effect of the foregoing was to closely identify the L. B. E. A. with the Employees Board. On May 5, 1937, Swartz learned that Dodge Local 1150 had on the previous day requested a meeting with the respondent for the purpose of negotiating an agreement. On May 10, 1937, prior to any compliance with the request of Dodge Local 1150 to meet and confer, the respondent concluded an agree- ment with the L. B. E. A. granting it recognition as the exclusive bargaining agent of the employees at the Dodge plant. This agree- ment, based upon flimsy proof of majority representation by the L. B. E. A.,22 was, under the circumstances, negotiated with excessive ease and inordinate haste.23 Despite his position as head of the order department at the Dodge plant, Swartz was a leading figure in the administration of the Employees Board between January and April 1937, in the formation of the L. B. E. A. in April 1937 and hi its administration thereafter, and in the negotiation of the recognition agreement of May 10, 1937. The respondent at all times acquiesced in, indicated its approval of, and, in effect, ratified the energetic action of Swartz on behalf of the Employees, Board and the L. B. E. A. All of the foregoing, as well as the statements hostile to Dodge Local 1150 made by various foremen and the refusal by Maxwell and Loughery on May 1, 1937, to investigate reasonable charges that persons acting on behalf of the L. B. E. A..were violating the respond- ent's rules against union activities by any organization on its time or premises, clearly reveal a marked disparity in the treatment accorded the L. B. E. A. and Dodge Local 1150 by the respondent. We find that after July 5, 1935, the respondent dominated, and interfered with the administration of the Employees Board and con- 21 Westinghouse Electrical Manufacturing Company v . N L R. B, decided June 10, 1940, 112 F (2d) 657, (C C A. 2) enforcing as modified Matter of Westinghouse Electric & Manufacturing Company and United Electrical Radio & Machine Workers of America, Local #410, 18 N L R B 300 See also Newport News Shipbuilding & Dry Dock Co et at v N L R B, 308 U S 241, reversing modification of Board's order in Newport News Shipbuilding & Dry Dock Co , et al . v. N L R B , 101 F (2d) 841 (C C. A 4), enf'g, as modified, Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N L R B 866 ii See footnote 14, supra 23 Cf Hamilton-Brown Shoe Co v N L R B, 104 F (2d) 49 (C. C. A. 8), enf'g as modified Matter of Hamilton-Brown Shoe Co. and Local No 125 United Shoe Workers of America, C 1 0 , 9 N. L R B. 1073; International Association of Machinists , Tool and Die Makers Lodge No. 35, affiliated with the I. A. M. v. N L R B 110 F (2d) 29 (C A D C ) aff'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N L R B 621, Bert granted, 311 U S 72, N. L R B v National Motor Bearing Co , 105 F (2d) 652 (C C A 9), enf'g as modified, Matter of National Motor Bearing Co and International Union United Automobile Workers of America, Local No 76, 5 N L R. B 409, N L R B v: Swift & Co., 106 F. (2d) 87 (C C A. 10), enf'g as modified, Matter of Swift & Co. and Amalgamated Meat Cutters and Butcher Workmen of North America , Local No . 641, et al , 7 N. L R B. 269. LINK-BELT COMPANY 251 tributed support thereto and thereby also interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On the basis of all the evidence we find that the respondent domi- nated and interfered with the formation and administration of the L. B. E. A. and contributed support thereto and thereby also inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The alleged discriminatory discharges and refusals to reinstate at the Ewart plant The complaint, as amended, alleges that during December 1937 and January 1938 the respondent discharged the following five em- ployees from its Ewart plant on the dates named, and thereafter refused to reinstate them, because of their union activities: Andrew Fink on January 6, 1938; James Mason on January 6, 1938; -Carl E. Hyatt on December 3, 1937; Raymond Morris on January 7, 1938; and O. N. Wiseman on January 5, 1938. The respondent denied that it had discriminated against these five employees and alleged (1) that Fink, Mason, and Hyatt were laid off because of a reduction in the working force due to a shortage of work; (2) that Morris was discharged because of his incompetency and inefficiency as a workman; and (3) that Wiseman was discharged because of an unwarranted and unprovoked assault which he made upon a fellow employee. According to the undisputed testimony of R. C. Becherer, shop superintendent at the Ewart plant, in November 1937 there were 1182 employees in the Ewart plant. About 600 or 650 of these were em- ployed in the foundry, and the remainder in what is termed the manufacturing unit. Due to curtailed orders and generally slow business conditions, in November and December of 1937 and- in January 1938 the respondent discharged or laid off a total of 215 em- ployees from the manufacturing unit of the Ewart plant. Of these, five, hereinafter discussed, are named in the complaint. Andrew Fink and James Mason. Fink was employed by the respond- ent between 1917 and about November 1919 and again from 1920 to the latter part of 1923 or the first part of 1924. The respondent hired him again in December of 1928 after which he worked continuously until he was laid, off on January 6, 1938. All of Fink's employment with the respondent was in the Ewart plant and for the most part in department 1200 of that plant as a chain assembler. Fink joined Dodge Local 1150 in January 1937 when it admitted to membership employees at both the Dodge and Ewart plants. On^ or about June 1937 when Ewart Local 2028 was established he became 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a member and was thereafter elected a trustee, a position he held at the time of his lay-off. Mason was hired by the respondent in May 1929 as a chain assembler in department 1200 of the Ewart plant and was so employed, for the most part in the same department, until he was laid off on January 6, 1938. He became a charter member of Dodge Local 1150 at the time of its formation on or about December -1936 and served as a -trustee and member of its shop committee. In the latter capacity he was present on several occasions when the committee met with respresen- tatives of the respondent during the spring of 1937. Later, when Ewart Local 2028 was formed, Mason became a member and served on its grievance committee. Both Fink and Mason on occasion worked in departments 1100 and 2000 although, as stated, the major part of their time was spent in department 1200. The foreman of all three departments was Leo Bullock. Bullock testified that at the end of 1937 there were 58 men and 4 women employed in departments 1100, 1200, and 2000. The work required of the departments slackened in the middle of December 1937 and Bullock conferred with Becherer concerning the need for making some lay-offs. The two men decided to defer action until after the Christmas and New Year holidays. They conferred again during the first week in January 1938 and determined to lay off four or five men from department 1200. In making their selections they con- sidered the seniority, ability, and suitability of all persons in the department. Bullock's testimony, as herein recounted, was confirmed by that of Becherer. On January 6, 1938, Bullock laid off Fink, Mason, Kenneth Kimball, and David Hillman. On January 7, 1938, Bullock laid off Carl J. Bates. Kimball, Hillman, and Bates were not named in the com- plaint. Bates was then president of the Ewart Employees Associa- tion, Inc. The five men named above were junior in seniorty in de- partment 1200, the average length of service there being about 17 years. Up to the time of the hearing, none of the five had been rehired nor had the respondent employed anyone in department 1200 having less seniority than Fink and Mason at work which the two men were qualified to perform.24 Soon after they were laid off both Fink and Mason protested to Becherer. The latter told them that they had been laid off because of lack of work and that seniority had been followed in selecting them. 24 One Dominic Moran, hired by the respondent on August 23, 1929, was listed as an employee assigned to department 2000 at the time Fink and Mason were laid off and thereafter He worked in both depart- ments 2000 and 1200 after January 8 , 1938, as a tester determining the strength rating of chain. This was a Job requiring special mathematical skill which neither Fink nor Mason had ever performed and for which they were not qualified . Moran was the only man junior in seniority to Fink and Mason to be employed at any type of work in department 1200 after the respondent laid off the latter two men. LINK-BELT COMPANY 253 They also spoke with F. S. O'Neil, manager of the Ewart plant, and urged that the seniority of men in departments 1100, 1200, and 2000 combined should be considered in making lay-offs from any one of the departments. O'Neil told them that the work of the three de- partments differed so greatly that this could not properly be done. Both Fink and Mason testified that persons were retained in de- partments 1100 and 2000 who had less seniority on a plant-wide basis than did they and also that in 1931 when work had been slow at the Ewart plant the respondent had shortened hours rather than making lay-offs. The respondent introduced substantially undisputed evi- dence that in general the work in departments 1100 and 2000 required a much higher degree of skill than Fink and Mason were accustomed to use in their work in department 1200 and that the only employ- ment the two men had in departments 1100 and 2000 had been for short periods on special jobs which were comparatively easy. The respondent admitted that in 1931 it had attempted to avoid making lay-offs by shortening hours. Witnesses for the respondent testified that its experience in following that practice had been highly unsatis- factory and that, in view of social security and unemployment com- pensation laws subsequently enacted to carry employees over periods of enforced idleness, it no longer felt that the policy of 1931 was necessary or desirable. Bullock testified that he knew that Mason and Fink had once been members of a union connected with the C. I. O. but alleged that he knew nothing of their union activities since the last of August 1937 when the Ewart Employees Association was recognized in the respond- ent's "statement of policy" as the representative of employees at the Ewart plant. Both Bullock and Becherer denied that they were motivated by any consideration of the union activities of Fink and Mason in laying them off or in having failed to reinstate them. At the time of the hearing, there were 49 men and 4 women em- ployed in departments 1100, 1200, and 2000. A number of the employees in departments 1100 and 2000 who had less seniority on a plant-wide basis than did Fink or Mason, but whose employment continued after Fink and Mason were laid off, were themselves laid off later in the spring of 1938. Some of them were rehired in 1939. We find that the evidence does not sustain the allegation of the complaint that the respondent discharged and refused to reinstate Andrew Fink or James Mason because of their union activities. Carl E. Hyatt was employed by the respondent for about 6 months in 1935 at the Dodge plant, after which he quit. The respondent rehired Hyatt at the Ewart plant on February 17, 1936, as, a tool maker and die repairer. During the organization of Dodge Local 1150, Hyatt was active in soliciting members. He was elected treasurer and served in that 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD capacity until June 1937. When Ewart Local 2028-was established at'the Ewart plant, its members ' elected Hyatt president, a position he held at the time he was laid off. At various times Hyatt served upon committees which met and conferred with representatives of the respondent. The foreman of the tool room where Hyatt worked was Homer Jeffras. Hyatt testified that shortly before the election on June 11, 1937, at a time when he was very 'active in soliciting members for Dodge Local 1150, Jeffras told him that he "had better watch his step in signing those cards up"; that the Company was watching him. Soon thereafter, according - to Hyatt, Jeffras again approached him and told him to stay out of the foundry and other departments than his own and to stop talking so much around the plant. Jeffras testified that about June 1937 he had cautioned Hyatt several times about leaving his work to go to various parts of the plant to converse with other employees. Jeffras alleged that he did not know what Hyatt spoke about with the other men but that his frequent conversa- tions at that time in all parts of the plant during working hours inter- fered with the work of all concerned . Hyatt admitted that in June 1937 he solicited for membership in Dodge Local 1150 in all parts of the- plant, but alleged that he did so only during the noon hour and after work . Since Hyatt was employed by the respondent for about 6 months after the above -discussed incidents we do not feel that it is necessary to resolve the conflict between Hyatt 's and Jeffras' testimony. On December 1, 1937, there were 24 men employed in the tool room at the Ewart plant. According to both Becherer and Jeffras, at that time the amount of work to be done in the tool room was dimin- ishing • and, after conferring on the matter , the two men decided to lay off the six men junior in seniority in the department . In reaching this decision they considered the qualifications and ability , as well as the seniority, of all men concerned. At that time the six men junior in seniority in the tool room, listed in an ascending order of seniority, were McMillan, McClintoch, Schmidt, Wallace, Hyatt, and Klepfer. On December 3, 1937, pursuant to the decision he and Becherer had reached, Jeffras laid off each of the above six men. In so far as the record shows , all of them were members of Ewart Local 2028, since Hyatt testified that he had signed up all the men in the tool room. Hyatt was the only one of the six ' who was named in the complaint, as amended . Hyatt testified that, upon laying him off, Jeffras told him that his work had been good and that he hoped to be able to recall both Hyatt and McMillan soon . According to both Jeffras and Becherer, an added factor in their selection of Hyatt to be laid off was that he had been employed for the most part in repairing and LINK-BELT COMPANY 255' overhauling a- particular type of die used by the respondent. This work was completed about December 1, 1937. In view of the undisputed testimony that the respondent needed to reduce its force at the time under consideration, and on the basis of the foregoing, we find that the evidence is insufficient to show that the respondent discharged or laid off Hyatt on December 3, 1937, be- cause of his union activity. Soon after December 3, 1937, Hyatt called upon Becherer and told him that he was able to do any type of work in the tool room. Hyatt testified that Becherer replied, "I know you can Hyatt, but we ain't taking nobody on at present." , A short time after Januray 6, 1938, when. Andrew Fink and James Mason were laid off, Hyatt accompanied the two men when they went to see F. S. O'Neil, manager of the Ewart plant. Hyatt started to present their grievance to O'Neil and the latter refused to listen to him. O'Neil testified that he told Hyatt at the ,time that he saw no reason why he should speak to him, that he had not been on the pay- roll for over, a month and had no grievance of his own. O'Neil then spoke with Fink and Mason. On February 14, 1938, the respondent rehired Wallace and McMillan two of the men laid off on December 3, 1937. It also notified Schmidt, a tool grinder, to come back to work. He failed to do so. As compared with Hyatt's seniority which dated from February 17, 1936, Wallace had seniority dating from May 5, 1936, and McMillan had seniority dating from September 9, 1937. Upon hearing that Wallace and McMillan had returned to work, Hyatt went to see Jeffras and asked to be reemployed. Accounts given of this interview by both Jeffras and Hyatt agree substantially that the former told the latter that McMillan and Wallace had come back on jobs paying less than the work to which Hyatt was accustomed and that there would probably be work for him soon. Jeffras testified that Hyatt remarked, "I don't want their jobs, I don't want anybody's job. I want my job." Hyatt did not deny this testimony. Jeffras explained that the respondent had called McMillan and Wallace back because they were tool grinders and that it had at the time a special need for that type of workman. McMillan was better qualified as a tool grinder than was Hyatt and Wallace was an 'ap- prentice who worked at a much lower rate of pay than Hyatt was accustomed to receiving. Prior to his lay-off the respondent paid Hyatt 96 cents an hour. McMillan was rehired at 86 cents an hour and Wallace at 50 cents an hour. Jeffras testified that he did not believe that Hyatt would have wanted to return to work at either the jobs or the rates of pay given McMillan and Wallace and that, at the time, he thought business would pick up enough to permit him to recall Hyatt within a few weeks. This did not prove to be 'the case 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Hyatt was not recalled. At the time of the hearing there were 19 men employed in the tool room at the Ewart plant. The only ones having less seniority than Hyatt who worked there at any time after he was laid off were McMillan and Wallace, discussed above. We find that the evidence is insufficient to show that the respondent refused to reinstate Hyatt because of his union activities. Raymond Morris was hired by the respondent on June 28, 1934, at the Ewart plant for work in the stock room. In March 1935 he was transferred to department 700 where he worked as a bench hand on a piece-work basis until January 7, 1938, when he was "released." 25 Morris joined Dodge Local 1150 in May 1937 and wore his union button while at work. His membership was transferred to Ewart Local 2028 upon its formation and in September 1937 he was elected financial secretary of that local. He solicited for membership in Ewart Local 2028 among the other employees. The foreman of department 700 was Cnester Dickerson. Dickerson testified that at the first of January 1938 there were 43 employees in his department. The amount of work required of the department was diminishing so Dickerson conferred with Becherer and the two men decided to reduce the force by three men. Those selected to go were Morris, Frank Rairdon and Clarence Townsend. On January 7, 1938, Dickerson discharged or released these three men. Rairdon and Townsend are not named in the complaint. Dickerson and Becherer testified that when Morris was first employed by the respondent his work was satisfactory, but that in the last months of 1937 his entire attitude had changed and that he had become inefficient and insubordinate and that he habitually came to work late and left early. The respondent introduced undisputed evidence that during the period of 15 weeks from October 2, 1937 to January 7, 1938, Morris' department worked 599 hours. -Although Morris could have worked all this-time, he worked only 526 hours, thereby losing 73 hours in 15 weeks at a time when he was neither ill nor on vacation. Morris' average earnings during the same -period, computed on a piece-work basis, were equivalent to 75 cents per hour while the average of all those in his department computed on the same basis, was 85 cents an hour. The above, and other, evidence concern- ing Morris' alleged habitual tardiness and inefficiency is convincing. It is the respondent's contention that Morris was selected for release because of such tardiness and inefficiency. After January 7, 1938, Morris applied to Becherer to see if he could get his job back. Becherer refused. At the time of the hearing there were 33 employees in department 700 of the Ewart plant. 2i Morris' "Employees Separation Report," a card prepared at the time his employment with the respon- dent ended, states that he was "released " because of a reduction in the force . Witnesses for the respondent testified that a "release" had the same effect as a discharge and was simply a "more polite " form of severing the employer-employee relationship LINK-BELT COMPANY 257 , We find that the evidence is insufficient to show that the respondent discharged and refused to reinstate Morris because of his union activity. 0. N. Wiseman's only employment with the respondent was from April 1936 to January 5, 1938, as a chain assembler in department 2000 of the Ewart plant. He. joined Dodge Local 1150 about January 1937 and in June 1937 he became a member of Ewart Local 2028. His union activities were confined to attending meetings and wearing his union button. The evidence, which need not be set forth in detail, establishes that on the morning of January 5, 1938, the day of his discharge; Wiseman engaged in a fight with Sam Pleasant, a fellow employee, in the course of which Wiseman struck Pleasant several times with a hammer and Pleasant swung at, but missed, Wiseman with a shovel. The fight was immediately investigated by Bullock, the foreman of department 2000, and Becherer, the shop superintendent. They determined, apparently with good reason, tnat Wiseman had provoked the fight and Becherer discharged him soon after the cessation of, hostilities. Although Wiseman subsequently asked Becherer for "another chance," the latter refused. We find that the evidence is insufficient to show that the respondent discharged and refused to reinstate Wiseman because of his union activities. D. The alleged discriminatory discharges and refusals to reinstate in department 229 of the Dodge plant The complaint, as amended, alleges that on June 22, 1937, the respondent discharged the following 13 named employees from its Dodge plant, because of their union activities: Leora Buchanan, Mary Camden, Frances Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison, Ruth Wilson Lamaster, Leona Lewis, Margaret Linder, Bernice Lindsey, Rosa Markley, Phyllis O'Neill, and Zetta Sylvester. The complaint, as amended, further alleges that some of these employees were subsequently reinstated and thereafter again discrim- inatorily discharged by the respondent as follows: Name Discharged Reinstated Leora Buchanan_________________________ October 20 , 1937 _______________________ January 4, 1938 i Bertha Dillon ___________________________ September 16, 1937 ____________________ October 24, 1938 _______________________ November 4, 1937. Naomi Dillon --------------------------- September 16, 1937____________________ November 4, 1937. October 27 , 1938_______________________ December 8, 1938 Ruth Wilson Lamaster __________________ October 27, 1938_______________________ December 8, 1933 Leona Lewis ---------------------------- October 20, 1937_______________________ November 4, 1987. Margaret Linder________________________ October 27 , 1938 _______________________ December 8, 1938. Phyllis O'Neill-------------------------- October 27, 1938_______________________ December 8, 1938. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint, as amended, also alleges that the respondent has refused, because of their union activity, to reinstate the above- named individuals whose employment has been terminated. The respondent denied that it had discriminated against the above 13 employees and alleged that their employment had been terminated on the various dates given because of a reduction in working force made necessary by curtailed orders for the products produced by the respondent. Department 229 at the Dodge plant is engaged in various stages of assembling and inspecting chain. During the week ending June 19, 1937, there were in the department 209 employees, of whom approxi- mately 150 were women engaged in the same general classifications of work as were the 13 women named in the complaint. Charles Rothman has been foreman of department 229 since 1920. The respondent introduced extensive and detailed evidence, which was substantially undisputed, to show that in the spring of 1937 orders for the respondent's products were cancelled by several im- portant customers and that, due to this 'and other business factors, it became necessary in June to curtail employment in department 229. Rothman, W. H. Maxwell, superintendent of the plant, and C. V. Loughery, manager of the plant, conferred at various times con- cerning the conditions mentioned above. In June they decided that approximately 50 women should be laid off. Pursuant to this decision, on June 22, 1937, Rothman laid off 33 women, including the 13 named in the complaint, and on June 23, 1937, he laid off an additional 10 women. According to Rothman, some were laid off a day later than others in order to permit them to complete the jobs upon which they were then at work. The selection of those to be laid off was made by Rothman and it is undisputed that he personally told each one of the 43 women selected that she was laid off due to lack of work. All of the 13 women, alleged in the complaint to have been dis- criminatorily discharged on June 22, 1937, testified at the hearing that they joined Dodge Local 1150 in February, March, or April of 1937. Some of them testified that they wore their union buttons in the plant and solicited for members outside of working hours. Ap- parently the only one of the 13 who was outstandingly active on behalf of Dodge Local 1150 was Frances Cox, who was its recording secretary and a member of its negotiating committee. Various ones of these 13 women testified that during the period shortly before the election of June 11, 1937, discussed in a previous section, certain of the men employees in department 229 and group leaders, who had minor supervisory authority, made statements to them antagonistic to Dodge Local 1150, or asked them to join the L. B. E. A. Naomi Dillon testified that about June 1, 1937, she approached Rothman to ask him if she might be shifted to a different department and that LINK-BELT COMPANY 259 he answered her, "Well, if you don't drop the union you are going to lose your job." Rothman d'enied having made this statement or any like it. All 13 of the women testified that they had been laid off, rather than discharged as alleged in the complaint. . Apparently the 13 women named in the complaint were the-only members of Dodge Local 1150 among the 43 women laid off on June 22 and 23, 1937 . It is undisputed that shortly after June 23, 1937, Roy Swartz went to Rothman and complained that 27 members of the L. B. E. A. had been selected for lay-off. Subsequently, grievance committees from both the L. B. E. A. and Dodge Local 1150 went to see Maxwell and complained to him that their members had-been discriminatorily laid off. Rothman, who made the selection of those to go, testified that he did so on the basis of the following 22 factors : natural ability, speed, accuracy and efficiency , business-like attitude, observance of company rules , versatility , ability to get along with other employees; health, physique , age, sex, domestic and marital status, mental attitude, morals, . previous service,' length of continuous service, tendency to quit, necessity for supervision, conduct outside of the plant, education , supervisory possibilities , and honesty . These 22 factors were developed and used only by Rothman and do not repre- sent any established rule of the respondent . They had not been reduced to writing prior to the hearing . In applying the factors mentioned, Rothman relied upon his knowledge of the employees gained through his daily contact with them and from information obtained through conversations with his assistants . Rothman testified in great detail concerning his reasons for selecting for lay- off the 13 women named in the complaint. In addition, he compared these 13 women in respect to suitability for employment with other women, junior in seniority to them, whom the respondent employed at various times after June 22, 1937 . The attorney for the Board cross-examined -Rothman closely concerning his ratings of employees as made at the bearing and as made by him on separation reports which he filled out shortly after making the lay -offs. Although there are various inconsistencies between Rothman's detailed testi- mony at the hearing and his general and incomplete ratings and com- ments on the separation reports, the Trial Examiner found that he selected those to be laid off -on a non-discriminatory basis. It appears that in point of seniority, which was only one of the factors Rothman allegedly took into consideration , the 13 women named in the complaint were well below the average of all the women employed in department 229. In summary, the available evidence concerning the lay-offs of June 22 and 23, 1937 , indicates that an extensive reduction in the number of employees in department 229 was, from the standpoint of the 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, advisable for legitimate business reasons. The testimony of the 13 women whose cases are under consideration makes little, if any, showing that Rothman had a discriminatory intent toward them because of their membership in and activities on behalf of Dodge Local 1150. Apparently he laid off more members of the L. B. E. A. than of Dodge Local 1150. Though not consistent in all details, Rothmdn's testimony concerning the reasons for his selections is not substantially contradicted and is generally credible. The respondent subsequently rehired 8 of the 13 women alleged to have been discrim- inated against. On the basis of the foregoing, we find that the evidence does not sustain the allegation of the complaint that, on June 22, 1937, the respondent discharged Leora Buchanan, Mary Camden, Frances Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison, Ruth Wilson Lailiaster, Leona Lewis, Margaret Linder, Bernice Lindsey, Rosa Markley, Phyllis O'Neill, Zetta Sylvester, or any of them, because of their union activities. Between June 23, 1937, and the time of the hearing the respondent hired no new female employees in department 229. Of the group of 43 laid off on June 22 and 23, 1937, 21 have at various times been recalled to work. Of the 13 women named in the amended complaint, 8 have, on one or more occasions, been recalled by the respondent, and 4 of the 8 were employed at the time of the hearing.21 There is but little evidence concerning the lay-offs after June 22, 1937, of those women who had originally been laid off on that date and subsequently rehired and laid off again. None of the available evidence concerning such lay-offs tends to show that they were made on a discriminatory basis., Likewise, in view of our finding that their original lay-offs were not discriminatory and the fact that the respondent had, up to the 76 The parties stipulated that the following employees had since June 22, 1937, been reinstated and laid off as follows Name Reinstated Laid off Leora Buchanan__________________ October 20, 1937_______________________ January 1, 1938. Bertha Dillon_____________________ September 16,1937____________________ October 24,1938______________________ November 4, 1937. Naomi Dillon_____________________ September 16,1937____________________ November 4, 1937. October 27,1938_______________________ December 8, 1938. Ruth Wilson Lamaster____________ October 27, 1938_______________________ December 8, 1938. Leona Lewis______________________ October 10,1937_______________________ November 4, 1937. October 27,1938_______________________ December 8, 1938 Margaret Linder__________________ August 26, 1937________________________ November 3, 1937. Phyllis O'Neill _-__________________ October 27, 1938_______________________ December 8, 1938 The respondent sent a notification to Zetta Sylvester to return to work on October 25, 1938, but due to a change in her address she did not receive the message Zetta Sylvester, however, was reemployed by the respondent immediately prior to the hearing, as were Phyllis O'Neill, Bertha Dillon, and Ruth Wilson Lamaster The respondent has not reemployed Mary Camden, Rosa Markley, Frances Cox , Bertha Harrison, or Bernice Lindsey LINK-BELT COMPANY 261 time of the hearing, hired no new female employees, there is no showing that the respondent's failure to recall 5 of the 13 women named in the complaint for work after June 22, 1937, was discriminatory. We find that the evidence is insufficient to show that the respondent refused at any time to reinstate Leora Buchanan, Mary Camden, Frances Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison, Ruth Wilson Lamaster, Leona Lewis, Margaret Linder, Bernice Lindsey, Rosa Markley, Phyllis O'Neill, and Zetta Sylvester, or any of them, because of their union activities. We further find that the evidence is insufficient to show that the respondent terminated the employment of Leora Buchanan, Bertha Dillon, Naomi Dillon, Ruth Wilson Lamaster, Leona Lewis, Margaret Linder, and Phyllis O'Neill, or any of them, after June 22, 1937, because of their union activities. E. The alleged discriminatory lock-out in the heat-treat department of the Dodge plant The complaint, as amended, alleged that on or about November 18, 1938, the respondent locked out and laid off the following named employees in the heat-treat department of the Dodge plant because of their union activities: Louis Albrecht, James Gaughan, Donnell Haymaker, Russell Hopper, William Lukins, Boris Palachoff, William Proctor, Curtis Reynolds, Clyde Rodenberg, Conrad Schroeppel, Louis Scott, and David Thomas. The respondent alleges in its answer that the heat-treat department was temporarily shut down at the time alleged because certain mem- bers of Dodge Local 1150 had prevented the foreman on the third shift from entering the plant and because the respondent anticipated the use of violence and illegal acts on the part of the said employees against the premises and property of the respondent. The parties agreed at the hearing substantially as follows: (1) that on the night of November 18, 1938, the 12 employees alleged to have been locked out reported for work on the third shift of the heat- treat department of the Dodge plant and started to work; (2) that after they had worked 1 or 2 hours, the night foreman, Louis Rayman, told them to go home; 27 (3) that they left the plant and were sub- sequently paid by the respondent for the time they had worked on the shift but were not paid for the remainder of the 8 hours; (4) that with the exception of William Proctor, all of them had participated in the strike which occurred at the Dodge plant on October 4 and 5, 1937; (5) that there was no regular work for this shift on Saturday or Sunday, November 19 and 20, 1938, but at midnight on Monday, 27 Aside from Frank Feist and the 12 men named In the complaint, there were either three or four ad- ditional regular employees on the third shift of the heat-treat department in November 1938. These were laid off by the respondent at the same time and for the same period as were the 12 men named in the complaint. 323429-42-vol. 26-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 21 , 1938, all 12 employees named reported for work and worked their regular shift , which was from midnight to 8:00 a. m., and that the time lost to them due to the shut-down complained of was approximately 634 hours; (6) that the heat-treat department was open on Saturday, November 19, 1938, for any regular operations necessary , and a small number of employees from each of the three shifts worked during that day; and (7) that each one of the 12 em- ployees named in the complaint was an employee of the respondent and a member of Dodge Local 1150 at the time of the shut-down. By way of explanation of its action in closing the heat-treat depart- ment shortly after midnight during the morning of November 19, 1938, the respondent introduced considerable evidence concerning a strike which occurred at the Dodge plant on October 4 and 5, 1937: It is undisputed that on October 4 , 1937, about 10:00 a. in., the first shift in the heat-treat department went on strike over an alleged grievance which is not directly involved here. Instead of leaving the department after going on strike the men in the heat-treat depart- ment stayed inside. Upon the arrival of the second and third shifts at 4:00 p. in. and midnight, respectively, they joined the strike and, like the men on the first shift, stayed inside the plant. During the day the plant was shut down because of the strike. The strikers closed the doors and gates of the plant and stationed men at various positions to prevent others from going to work . They permitted Maxwell and other officials of the respondent to enter and leave the plant freely. The strikers did no physical damage to the property of the respondent nor did they commit acts of violence against other persons. Apparently , however, some of them were armed with clubs of various sorts. It appears that most of the strikers were members of Dodge Local 1150. The strike was settled on October 5, 1937, after the respondent had agreed to a settlement favorable to the strikers of the grievance which was the immediate cause of the strike. C. V. Loughery, manager of the Dodge plant, testified that on November 2, 1938, at a metting with the grievance committee of Dodge Local 1150, he refused a request of the committee to grant a closed shop and a check-off system. According to Loughery, Jordan, the chairman of the committee , then told him that Dodge Local 1150 would take steps to compel everyone in the plant to join. The respondent contends , in substance , that its action in closing the heat-treat department must be considered in the light of the events described above and other similar events, as hereinafter discussed. The heat-treat department is engaged in hardening various metal parts by treatment in furnaces . For reasons of efficiency it operates on a 24-hour schedule with three shifts of employees. The first shift works from 8:00 a . in. to 4:00 p. in ., the second shift, from 4:00 LINK-BELT COMPANY 263 p. in. -until midnight, and the third shift, from midnight until 8:00 a. in. James Duncan is foreman of the entire department. Under Duncan are Gordon Shedd, supervisor of the first shift, Willard Thomas, supervisor of the second shift, and Frank Feist, supervisor of the third shift. Apparently there are between 15 and 25 employees on each of the three shifts. On Friday, November 18, 1938, William Trent; an employee on the second shift of the heat-treat department, obtained permission from his supervisor, Willard Thomas, to leave the department for a few minutes between 6:00 p. m: and 7.00 p. in. to speak with Frank Feist, supervisor of the third shift. Feist's home was only a few blocks from the plant. Trent testified that at about 6:30 p. in. he saw Feist at the latter's home and induced him to sign a membership application card in Dodge Local 1150. Feist testified that he did not wish to sign and that he agreed to do so only after Trent had told him that if he did not the men would not permit him to enter the plant at midnight when his shift started. Trent denied that he so threatened Feist. Under the circumstances we do not consider it necessary to resolve this conflict in the testimony. After signing the card Feist, without telling anyone of what he had done, went to a bowling alley where he stayed until about 11:00 p. in. He testified that while there he decided that he had made a mistake in signing the membership application card for Dodge Local 1150. Shortly after 11:00 p. in. he went to the plant and found several men congregated around the entrance he customarily used. He asked one of them, Archie Renner, to go inside and ask Trent to come out. Renner returned with Trent after a few minutes. Feist asked Trent to walk a short distance from the plant and, this done, told him that he had changed his mind and that he wished Trent to destroy the membership application card he had signed. Trent agreed to do so. According to Feist he then went to his home, changed to his work clothes, and at about 11:45 p. in. returned to the plant where he found a crowd of about 10 to 14 men gathered around the entrance. Some one in the crowd asked Feist if he had signed a card. Feist replied that he had not and testified that the unidentified person then called out, "Well, you can't get in tonight." Although there is con- siderable conflicting testimony concerning what various persons in front of the plant gate said to Feist on this occasion it seems clear that he did get the impression, whether justified or not, that the men would not let him enter for the reason that he told them he had not signed a card applying for membership in Dodge Local 1150. The heat-treat department was the only department at the Dodge plant operating three shifts and at midnight there were no important supervisory officials of the respondent present. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Immediately after encountering the group of men at the plant gate, Feist crossed the street to a tavern and telephoned to James Duncan, general foreman of the heat-treat department, at the latter's home, telling him only that the men would not let him in. Duncan told Feist to wait until he could get to the plant. Duncan testified that as soon as he heard from Feist he telephoned to W. H. Maxwell, superintendent of the Dodge plant, and repeated what Feist had stated to him. Maxwell told Duncan to go to the plant and, if he found Feist's story to be true, to close the department down for the night. . At about 12:15 Duncan arrived near the front of the plant where he met Feist. The latter explained to Duncan that the men would not let him (Feist) enter unless he joined Dodge Local 1150. Duncan entered the plant where he found the third shift of the heat-treat department at work under the supervision of Willard Thomas, super- visor of the second shift. Both Thomas and Louis Rayman, the general night foreman, told Duncan that the men had refused to let Feist in. Duncan then gave orders to close the department down and Rayman and Thomas so informed the men on the third shift. Since it required some time to take out material which was then in the furnaces, the department was not actually closed until about 1:30 a. m. .Louis Rayman testified that about midnight he had noticed that there were cars parked in such a way as to block the entrance to the plant parking lot and that an unusually large crowd of men was gathered near the plant entrance. He telephoned this information to Maxwell. Maxwell confirmed the testimo-Tly of Duncan and Rayman concerning the telephone calls they made to him. He testi- fied that during November 1938, Dodge Local 1150 had been conduct- ing an intensive organizing campaign and that there were many rumors which reached him from the plant to the effect that a sit-down strike was impending. It was due to his desire to avoid such a strike that he directed Duncan to close the heat-treat department if he should find that Feist had been kept out of the plant. Duncan testified that he ordered that the department be closed pursuant to Maxwell's instructions because of the absence of Feist, the supervisor of the third shift, and also because of his fear that there might be another strike similar to that of October 1937. As previously stated, there were no regular shifts for work in the heat-treat department during Saturdays after 8:00 a. m. or during Sundays. The shift which was closed down at about 1:30 a. m. on Saturday, November 19, 1938, was the last regular shift of the week. On the following Monday, work was resumed as usual. We find, on the basis of the foregoing, that the respondent closed the heat-treat department on the morning of November 19, 1938, for lawful reasons and in order to protect its legitimate interests. We find that the respondent did not lock out and lay off Louis Al- LINK-BELT COMPANY 265 brecht, James Gaughan, Donnell Haymaker, Russell Hopper, William Lukins, Boris Palachoff, William Proctor, Curtis Reynolds, Clyde Rodenberg, Conrad Schroeppel, Louis Scott, and David Thomas on or about November 18, 1938, because of their union activities. F. The alleged discriminatory lay-offs on November 22, 1938 The complaint, as amended, alleges that on November 22, 1938, the respondent laid off for a period of 5 days the following four em- ployees at its Dodge plant because of their union activity: Basil V. Booher, Walter Craigle, William Trent, and Talmage Hooper. The respondent denied that it had discriminated against these four employees and alleged that they were laid off because of willful violation of the respondent's rules and regulations. Booher has been employed in the tool room of the Dodge plant continuously since 1916. He helped to organize Dodge Local 1150 and became its president in February 1937. He was serving as such during the period here under consideration. He was active in solicit- ing members for Dodge Local 1150 and served on many of its com- mittees in various meetings with representatives of the respondent. Craigle has been employed by the respondent continuously since March 1928, except for a period of 18 months during 1930 and 1931. In November of 1938 he was working as a floor inspector in the lathe department of the Dodge plant. Craigle joined Dodge Local 1150 in February 1937. Thereafter, he wore his union button in the plant and solicited for members. During 1938 he was vice president of Dodge Local 1150 and was a member of various of its committees which met with representatives of the respondent. Trent was hired by the respondent in 1923 as a helper in the heat- treat department of the Dodge plant. He held this job for about 10 years, after which he became, and has since remained, a furnace operator in the heat-treat department. Trent joined Dodge Local 1150 in February 1937. He was active in soliciting for members and about November 1938 he was elected shop steward in Dodge Local 1150, a position he held until about May 1939. Hooper has been employed by the respondent between 16 and ,18 years. In November 1938 and thereafter he worked as a supervisor in' department,229 under Charles Rothman. Hooper joined Dodge Local 1150 in about September 1937. He subsequently relinquished his membership and then joined again. He was a member during November 1938. He apparently did not hold office or serve on com- mittees for Dodge Local 1150. It is undisputed that on November 22, 1938, Booher and Craigle and other members of a grievance committee for Dodge Local 1150 conferred with Maxwell, superintendent of the Dodge plant, in the latter's office concerning the shut-down of the heat-treat department 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the morning of November 19, 1938, and that, as the meeting ended and other members of the committee were leaving, Maxwell called Booher and Craigle back and told them that they were laid off for 1 week. According to the testimony of both Booher and Craigle Maxwell refused to tell them why he was laying them off. Maxwell denied that he refused them an explanation. This conflict in the testimony will be considered below. It is also undisputed that later during the same day, November 22, 1938, both Trent and Hooper were notified to go to Maxwell's office, where Maxwell spoke with them separately and told each of them that they were laid off for a week. Trent testified that when he asked Maxwell the reason for this action the latter said it was for "intimida- tion" and that he refused to give any other explanation. Hooper testified that Maxwell told him that he was laid off because he "had been soliciting members in working hours and trying to force them to join the union." Maxwell testified that when he laid the four men off, Booher and Craigle together and Trent and Hooper separately, in each case he read to them the following prepared statement: The Company has been given conclusive evidence that you have violated the statement of policy and the Company rules in union activities in intimidating and coercing other employees. This is a matter for dismissal. However, for this time as a warning, we are suspending you from your job for one week. Please leave the plant at once, and you can return to work next Tuesday. I regret that this action has to be taken and sincerely hope we will have no more difficulty. The testimony of Trent and Hooper, as recounted above, indicates that Maxwell made to them either the above statement or one similar in content. That Maxwell did not refuse to tell Booher and Craigle why they were being laid off, despite their testimony that he did so re- fuse, is shown by the fact that immediately after they were laid off both men filed grievance reports with Dodge Local 1150 stating that the respondent informed them that they were laid off for "intimidating other workers." On the basis of the foregoing, we find that Maxwell read to each of the four men the statement quoted above. Section 2 of Article 1 of the "statement of policy" issued by the respondent at the Dodge plant on September 1, 1937, accepted at that time by Dodge Local 1150 and in effect during November 1938, states as follows: There shall be no discrimination, interference, restraint or coercion by the company or any of its agents against any of its employees because of,membership or non-membership in any lawful organi- zation. On the other hand, and as a condition to recognition LINK-BELT COMPANY 267 already granted, there shall be no' coercion or intimidation of employees directly or indirectly to compel them to join or for their refusal to join any organization. The practice of such intimidation or coercion by any employee shall be grounds for dismissal. The union will not solicit membership on Company time or on Company property. Concerning its reasons for laying off Booher, Craigle, Trent, and Hooper the respondent introduced the evidence discussed hereinafter. C. V. Loughery and W. H. Maxwell, respectively manager and superintendent of the Dodge plant, testified in substance that during November of 1938, at a time when Dodge Local 1150 was conducting an intensive organizing campaign, they received many reports from foremen, aggrieved employees and others that persons soliciting for membership in Dodge Local 1150 were telling employees at the plant that they would have to join that organization to hold their jobs and that they would not be permitted to'enter the plant unless they joined. According to Maxwell and Loughery, they made thorough investiga- tions of these reports and determined that some punitive action was necessary. They alleged at the hearing that their investigations showed that the ringleaders who were chiefly responsible for the situa- tion described above were Booher, Craigle, Trent, and Hooper. They thbrefore decided to lay these four men off for a period of 1 week.' In support of its contention that Booher, Craigle, Trent, and Hooper had violated the respondent's rules against threatening, intimi- dating and coercing other employees and against soliciting for member- ship in a union in the plant during working hours, the respondent introduced the evidence discussed below. Uncontradicted testimony by William W. Neal and Carter Tucker, employees in the tool room of the Dodge plant, establishes the follow- ing version of an encounter between Neal and Tucker and Booher and others at one of the gates of the Dodge plant on the morning of Novem- ber 21, 1938. Neal and Tucker arrived at the gate at about 7:00 a. m., their usual hour, preparatory to going to work. There theyw ere confronted by a group of seven or eight men headed by Booher. Someone in the group told them that they would have to join Dodge Local 1150 before they could enter the plant. Booher then asked both men to join and warned them not to attempt to go through the gate without doing so as he would not be responsible for what might happen. Tucker requested permission to speak with his foreman, Brandt, before taking action. Booher agreed to go into the plant himself to look for Brandt. He did so, but soon returned to the gate saying that Brandt had not yet arrived. Tucker then asked Booher 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if he and Neal might go into the office to wait until Brandt arrived. Booher assented and the two men went into the employment office. In a few minutes Maxwell arrived and asked Neal and Tucker why they were there. Both men told him what had occurred. Maxwell instructed them to go into the plant and start to work and they did so. Loughery testified that later in the day, during the morning of November 21, Maxwell reported the above incident; to him. He then had Neal and Tucker called into his office and obtained from them a full account of what had happened.18 Charles Edmondson, an employee in department 216 at the Dodge plant, testified that early in November 1938 Craigle asked him when he was going to join Dodge Local 1150. Edmondson replied that he did not like the set-up of the C. I. 0. Craigle then stated, according to Edmondson, that he would rather be loyal to his fellow workers than to be a "longtailed rat." Edmondson replied that if Craigle said that again he would hit him. Thereupon, Edmondson testified, Craigle threatened to drop a 15-pound gear, which he was carrying, on Edmondson's foot. This incident allegedly occurred during work- ing hours in the plant. 'Craigle testified that he did not remember having had any such conversation with Edmondson. It is undis- puted, however, that Edmondson reported to Loughery that Craigle had spoken to him as discussed above. Both Edmondson and Loughery so testified. Loughery also testified that on November 21, 1938, one Brown, an employee at the Dodge plant, came into his office and reported that Craigle told him on November 18 that if he failed to join Dodge Local 1150 before Monday he would not then be permitted to work. Accord- ing to Loughery, Brown was greatly worried and had, on the previous day, telephoned to Maxwell to ask for police protection to go to work. Craigle admitted that he had a conversation with Brown concerning Dodge Local 1150, but denied that he had threatened him in the manner alleged. Willard Thomas, supervisor on the second shift of the heat-treat department, testified that on November 18, 1938, Trent told him in the plant during working hours "that they were going to stop the men who hadn't paid their dues in the C. J. 0. and didn't belong." Thomas alleges that he understood that this remark was directed at him. Trent denied having solicited Thomas to join Dodge Local 1150. Both Thomas and Loughery testified that on November 20, 1938, Thomas reported to the latter this entire incident. Loughery alleged that at the time he made the report Thomas asked if he could be reclas- 98 There is additional credible evidence that Booher headed a group of members of Dodge Local 1150 which prevented two men from entering the plant to go to work on the night of November 18, 1938, until they agreed to join Dodge Local 1150 Aside from the general testimony by Maxwell and Loughery that they received various credible reports that Boober was a ringleader in incidents of this sort there is no show ing on the record that the particular incident mentioned in this footnote was reported to them or that their action in making the lay-offs was based upon it. LINK-BELT COMPANY 269 sified as an office employee in order that he might not be required to join Dodge Local 1150. - Although Loughery and Maxwell received reports concerning the events leading up to the shut-down of the heat-treat department on November 19, 1938, it does not appear that they were notified by Feist or anyone else that Trent told Feist, as alleged by the latter, that he would have to join Dodge Local 1150 or he would not be per- mitted to work. Oren Fruits, a supervisor in department 229 of the Dodge plant, testified that on November 18, 1938, Talmage Hooper came to him while he was at work and told him that Dodge Local 1150 was soon going to have a closed shop and that he would have to join sooner or later. According to Fruits, Hooper told him that if he waited any longer to join Dodge Local 1150 his initiation fee would be raised from $1 to $25. Hooper admitted that he spoke with Fruits in the plant during working hours about Dodge Local 1150 but denied that he threatened him in any way. It is undisputed that Fruits reported the incident, substantially as described above, to his foreman,' Rothman, and that Rothman took him in to see Maxwell and Loughery to whom he repeated his story. On the basis of the foregoing, we find that the respondent laid off Booher,Craigle, Trent, and Hooper for a period of 1 week begin- ning November 22, 1938, because it had good reason to believe that each of them had wilfully violated the respondent's rules, and'that the evidence does not support the allegation of the complaint, as amended, that the respondent, laid them off because of their union activities.21 The complaint, as amended, also alleged in substance that hi. March 1937 and thereafter, the respondent discriminated against its employees at the Dodge plant who were members of, or affiliated with,. Dodge Local 1150, and against its employees at the Ewart plant who were members of, or affiliated with Ewart Local 2028, in the terms and conditions of their employment in respect to rates of pay, transfers to less desirable positions and in various other ways, for the purpose of discouraging membership in Dodge Local 1150 and Ewart Local 2028; and also that during March 1937 and thereafter, the respondent has kept under surveillance the meetings and meeting places of em- -ployees who were members of Dodge Local 1150 and Ewart Local 2028. The respondent denied these allegations. The Trial Examiner found that the evidence does not sustain the allegations of the com- plaint set forth immediately above. We have examined the evidence and hereby affirm the finding of the Trial Examiner. 29 While it is true that these men were engaged in "union activities" when they engaged in the conduct which led the respondent reasonably to believe that they were wilfully violating the respondent's rules, it does not follow that they were disciplined for engaging in "union activities ," as such. The basis for the' discipline here was the circumstances under which such activities were carried on rather than the support thereby afforded to Dodge Local 1150. 270 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that 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 engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Employees Board and the L. B. E. A., and has contributed to their support. Of these, only the L. B. E. A. is now in existence.30 In order to effectuate the policies of the Act and free the employees of the respondent from such interference, and domination and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to with- draw all recognition from the L. B. E. A. as a representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to, disestablish them as such representatives. We have found that the respondent did not discharge, lay off, refuse to reinstate, or otherwise discriminate in regard to the hire or tenure of employment of the persons listed in Appendix A, hereto attached. We shall, therefore, order that the complaint, as amended, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of the employees named in Appendix A, be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAw 1. Amalgamated Association, Iron, Steel & Tin Workers Local Union No. 1150 and Amalgamated Association, Iron, Steel & Tin Workers Local Union No. 2028 are labor organizations, within the meaning of Section 2 (5) of the Act. 30 In so far as the record shows, the agreement of August 5, 1937, by which the respondent recognized the L. B E. A. as the exclusive bargaining agency for office employees , clerical help in the shop, watchmen and cafeteria employees at the Dodge plant, has never been abrogated The L. B. E A. intervened at the hearing, held February 9, 10, 16, and 17, 1939, in Matter of Link-Belt Company and Steel Workers Oryanlz- ing Committee, Local No. 1150, Case No. R-1255. LINK-BELT COMPANY 271 2. By dominating and interfering with the administration of, and by' contributing support to, Link-Belt Employees Board at its Dodge plant after July, 5, 1935, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By dominating and interfering with the formation and adminis- tration of, and by contributing support to, Link-Belt Employees Association, Inc., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. 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. ' 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to the persons listed in Appendix A. 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, Link-Belt Company, Indianapolis, Indiana, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) In any manner dominating or interfering with the formation or administration of Link-Belt Employees Association, Inc., or any other labor organization of its employees, and from contributing any support to said organization or to any other labor organization of its employees; (b) Recognizing Link-Belt Employees Association, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (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 activities-for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Link-Belt Employees Associa- tion, Inc., as the representative of any of its employees for the purpose 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Link-Belt Employees Association, Inc. as such representative; (b) Post immediately in conspicuous places in its Dodge plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Orde. ; (c) Notify the Regional Director for the Eleventh Region in writing 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, as amended, be, and the same hereby is, dismissed in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment or terms or conditions of employment of the persons listed in Appendix A, attached hereto and hereby made a part hereof. APPENDIX A Andrew Fink James Mason Carl E. Hyatt Raymond Morris O. N. Wiseman Leona Lewis Naomi Dillon Phyllis O'Neill Margaret Linder Mary Camden Leora Buchanan Bertha Dillon Rosa Markley Zetta Sylvester Frances Cox Bertha Harrison Ruth Wilson Lamaster Bernice Lindsey William Proctor Louis Albrecht Curtis Reynolds Louis Scott William Lukins Donnell Haymaker James Gaughan Conrad Schroeppel Boris Palachoff David Thomas Russell Hopper Clyde Rodenberg Basil V. Booher Walter Craigle William Trent Talmage Hooper MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.