Carter Carburetor Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1942

39 N.L.R.B. 1269 (N.L.R.B. 1942)

In the Matter Of CARTER CARBURETOR CORPORATION and UNITED AuTo
MOBILE WORKERS OF AMERICA LOCAL 819, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS and CARBURETOR WORKERS'
GUILD (PARTY TO THE CONTRACT)
- Case No. C-1985.-Decided March 31, 19.142
Jurisdiction : automobile carburetor and fuse manufacturing industry.
Unfair Labor Practices
Company-Donnnnated Union: ;Association" formed at suggestion of respondent
and aided and interfered with by respondent prior to effective date of Act,
held company-dominated where form of "Association" remained unchanged
after effective date of Act and where respondent entered into contract with
"Association" constituting :in obstacle to free administration of its affairs-
"Guild" held company-dominated where shown to be successor of "Associa-
tion", and where respondent contracted with "Guild" without requiring proof
of majority representation and granted "Guild" valuable concessions to
strengthen its disability plan.
Discivnunation: employee prominent in union discharged on alleged grounds of
misconduct toward fellow employee, held discrimination where employee not
given opportunity to defend himself against charges of misconduct although
in previous similar case the charged employee had been given such oppor-
tunity; charges of discrimination as to two other employees dismissed
Remedial Orders : recognition ordered withheld from organization no longer in
existence as a labor organization in event it again becomes a labor organi-
zation; reinstatement and back pay ordered.
Evidence : matters occurring prior to effective date of act treated only as back-
ground relating to unfair labor practices committed after effective (late of
Act.
Mr. Wallace Cooper, for the Board.
Hardy, Stancliffe Cf Hardy, by Mr. John L. Farrell, of New York
City, and Mr. William R. Gentry,' of St. Louis, Mo., for the
respondent.
Mr. John L. Sullivan and Mr. Joseph M. Walsh, of St. Louis, Mo.,
for the Union.
Mr. Fred J. Hoffmeister, of St. Louis, Mo., for the Guild.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE '
Upon a fifth amended charge duly filed on August 12, 1941, by
United Automobile Workers of America, Local 819, 'affiliated with
39 N. L R B, No 235.
1269
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Congress of Industrial Organizations , herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Fourteenth Region ( St. Louis, Missouri),
issued its complaint dated August 13, 1941, against Carter Carburetor
Corporation , St. Louis, Missouri , herein called the respondent , alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce , within the meaning of Section
8 (1), (2), and ( 3) and Section 2 (6) and ( 7) of the National Labor
Relations Act, 49 Stat . 449, herein called the Act. Copies of the
complaint and notices of,hearing were duly served upon the respond-
ent, the Union, and Carburetor Workers' Guild , herein called the
Guild, a labor organization alleged in the complaint to be dominated
by the respondent.
With respect to the unfair labor practices , the complaint alleged
in substance that the respondent ( 1) from about September 1940,
urged, persuaded , and warned its employees not to join or assist
the Union ; (2) from about July 1933 and thereafter to about June 1,
1937, dominated and interfered with the formation and administra-
tion of a labor organization of its employees known as Carter Car-
buretor Corporation Employees ' Association , herein called the Asso-
ciation, and contributed support thereto , and from on or about June
1, 1937 , and thereafter , dominated and interfered with the formation
and administration of the' Guild, a successor to the Association ;
(3) discharged Elsie Walter on or about March 14, 1941, Clifford
Reed on or about March 27, 1941; and Owen Klusmeyer on or about
'April 4, 1941 , and thereafter refused to reinstate them, because they
joined and assisted the Union and otherwise engaged in concerted
activities ; and (4 ) by the foregoing acts, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On August 22, 1941 , the respondent filed, a
'
n answer denying that
it had engaged in any unfair labor practices . The respondent's
answer alleged that Walter, Reed, and Klusmeyer were discharged
"for good and sufficient cause." On the same date , the Guild filed
an answer in which it denied that it was a successor to the Associa-
tion, or that the respondent had in any way interfered with the,
formation and administration of the Guild . On August 25, 1941,
the respondent filed a motion for a bill of particulars.
Pursuant to notice, a hearing was held at St. Louis, Missouri, from-
September 4 to 10, 1941 , before Horace A. Ruckel, the Trial Exam-
iner duly designated by the Chief Trial Examiner . The Board,
the respondent , the Union , and the Guild were represented by counsel
and participated in the hearing . Full opportunity to be heard,
to examine and cross -examine witnesses, and 1 to introduce evidence
CARTER CARBURETOR CORPORATION 1271
bearing upon the issues was afforded all parties. The Trial Exam-
iner denied the respondent's motion for a bill of particulars., Coun-
sel for the Board moved to amend the complaint to include the
name of Mike Duggan as a supervisory employee alleged to have
made intimidatory statements with reference to union members and
membership. , There was no objection and the Trial Examiner
granted this motion. Upon the conclusion of the Board's case and
again at the conclusion of the hearing, counsel for the respondent
made a motion, in which he was joined by counsel for the Guild, to
dismiss the complaint on the grounds that the allegations thereof
were not supported by the evidence and that the issue as 'to domina-
tion-of the Guild had become moot by reason of the disestablishment
of the Guild as a labor organization. The Trial Examiner reserved
ruling on this motion at the hearing and denied it in his Intermedi-
ate Report. At the conclusion of the'hearing, counsel for the Board
moved to conform the complaint to the proof. There was no objec-
tion and the Trial examiner granted the motion. The Board has
reviewed these and other rulings of the Trial Examiner on motions
and on objections to the admission of evidence, and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Subsequent to the hearing, briefs were submitted to the Trial Exam-
iner by the respondent and the Guild.
The Trial Examiner thereafter filed his Intermediate Report, dated
October 9, 1941, copies of which were duly served upon the parties.
He found that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section' 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act,
and recommended that the respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act. Exceptions to the Intermediate Report and a brief in
support of the exceptions were filed by the respondent on December
1, 1941. ,
Pursuant to notice, a hearing was duly held before the Board in
Washington, D. C., on December 18, 1941, for the purpose of oral
argument. The respondent was represented by counsel and partici-
pated in the argument.
The Board has considered the respondent's exceptions and the
briefs. Insofar as the exceptions are inconsistent with-the findings,
conclusions, and order set forth below, the Board finds them to -be
without merit.
Upon the entire record in the case, the Board makes the following
1In denying the motion , the Tii,il Examiner stated that if any evidence adduced during
the course of the hearing surprised the respondent , a motion for a continuance might be
made. No such motion was made by the respondent
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Carter Carburetor Corporation is a Delaware corporation having
its principal office and plant at St. Louis, Missouri. It is engaged
in the manufacture, sale, and distribution of automobile carburetors
and fuses for explosive shells. The principal raw and semi-finished
materials used by the respondent consist of cast iron, steel, brass, and
zinc base die cast metal. During the year 1940, the approximate
value of these raw and semi-finished materials was in excess of
$500,000, of which approximately 67 percent was shipped to the re-
spondent from sources outside the State of Missouri. -During the
same period, the approximate value of the respondent's finished prod-
ucts was in excess of $1,000,000 of which approximately 90 percent
was sold and shipped by the respondent to purchasers outside the
State of Missouri. During the first 8 months of 1941, the percentages
of raw and semi-finished materials obtained from sources outside the
State of Missouri and the finished products shipped therefrom re-
mained approximately the same as for the year, 1940. The respondent
employs about 2,500 employees, including supervisory and clerical
employees.
,IT. THE ORGANIZATIONS INVOLVED
United Automobile Workers of America, Local 819, is a 'labor
organization affiliated with the Congress of Industrial Organizations,
and Carburetor Workers' Guild and Carter Carburetor Corporation
Employees' Association were unaffiliated labor organizations, admit-
ting to membership employees of the respondent.
III. TIIE UNFAIR LABOR PRACTICES
A. The Association
In July 1933,2 the respondent called meetings of the employees
in each of the departments of its St. Louis plant. William Kim-
berling, who was employed in the inspection department at that time,
testified without contradiction, and we find, as did the Trial Exam-
iner, that William Ewart, plant manager, addressed the meeting in
z Events which occurred prior to July 5, 1935, the effective date of the Act, aie not
considered as constituting a violation of the Act but are treated only as background evidence
relating to unfair labor practices committed after July 5, 1935 As hereinafter found, the
respondent dominated and intei fered with the Association until it was succeeded by the
Guild in June 1937 Cf Matter of Pennsylvania Greyhound-Lutes, Inc, Greyhound Manage-
enent Company , Corporations and Local Division No 1063 of the Amalgamated Association
of Street Electric Railway and htotoi Coach Employees of Avnerica, 1 N L R B 1, enf
303 U. S 261 , reversing 91 F (2d) 178 (C C. A 3)
CARTER CARBURETOR CORPORATION 1273
the inspection department, telling the employees there that under
the National Recovery Administration it would be necessary for them
to have some kind of a labor organization, that he preferred that they
form an inside union, and that within a clay or two the employees
would be asked to elect departmental representatives. On the fol-
lowing day the respondent again called meetings in the various
departments attended by foremen at which the employees voted on
representatives. Shortly afterward, the representatives who had been
elected met, adopted Articles of Organization forming the Associa•
tion,3 and selected officers. Hope Miller, personal secretary to Hugh
Weed, the respondent's vice president and general manager, was
elected secretary of the Association.
One of the representatives from the inspection department was
transferred shortly after the election and Earl Gibbons, a foreman,
suggested to Kimberling that he fill the vacancy thus created.4
Thereafter, at a meeting of the representatives on August 2, 1935,
Kimberling protested that the Association was a "company union."
On the following day William Slingman, the chief inspector, accused
Kimberling of "trying to organize an outside union here," stated that
"the company is not going to stand for that," and discharged him.s
The respondent provided the Association with office space in the
plant and the regular use 'of the respondent's conference room for
meetings of the representatives. Notices of such meetings were posted
on the respondent's bulletin boards. All elections of representatives
took place on company property during working hours with ballots
furnished by the respondent. ' Membership in the Association was
solicited openly in the plant. Weed and Ernest H. Nieman, the
respondent's factor superintendent, as well as other supervisory offi-
cials, frequently attended meetings of the representatives and par-
ticipated in their deliberations. At a meeting on January 11, 1934,
Nieman suggested that the members provide for a plan of insurance
benefits, subject to Weed's approval. Such suggestion is typical of
others made by the respondent. For example, on December 14, 1933,
at a meeting of the representatives, a proposal that the day shift start
8The Articles of Organization were printed by the respondent and boie the respondent's
trade-mark on its cover The Articles granted membership to employees not having the
right to hire or discharge and who exhibited "a high standard of workmanship and good
moral character " after 3 months' employment ; provided for a Committee of Representatives
consisting of two employees from each department, who had been employed for a year or
more which should manage the affairs of the Association and elect its officers, required the
replacement of representatives upon their transfer to another department , and provided
for the payment by the respondent of time lost by representatives while attending meetings
of the Committee No dues and no gener al meeting of the membership were provided for
Reguhu meetings of the Committee were to be held once a month
4 ffimberlmg had been :in uwrsuccesaful candidate in the election of representatives for
the inspection department
The account of Slmgman's remarks to Bnnbeilhng is based on the latter's undisputed
testimony which the Trial Examiner also credited
I
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at r a. in. instead of 7 a.m. was abandoned because the change "was not
satisfactory, to Mr. Nieman." The hours were to remain unchanged
"unle:•s at some later date this change may find favor with Mr. Nie-
man." Miller inserted in the minutes,on her own responsibility the
statement : "However I understand that quite a few of the employees
voted to keep the old hours even before Mr.,Nieman made the decision."
The Association minutes reveal that on the occasion of a dance to be
given by the Association, the respondent "decided" to combine the
dance with an open house for families of the employees. The respond-
ent furnished the refreshments.
The subserviency of the Association to'the respondent continued
throughout its history. Miller, the Association's secretary, testified
that the Association functioned in the same manner after July 5, 1935,
the effective date of the Act, as it had prior to that time.
On May 3, 1937; the respondent and the Association entered into a
contract in which the respondent recognized the Association as the ex-
clusive representative of all its employees for the purposes of collective
bargaining "in respect to rates of pay, wages, hours of employment
or other conditions of employment." By the terms of the contract, the
Association agreed that new employees should not be eligible for mem-
bership until the completion "of three (3) months of satisfactory
service with the company." The contract contained provisions with
respect to wages, hours, and other conditions of employment.
It is apparent that the Association was throughout its existence,
both before and after July 5, 1935, the creature of the respondent. It
was set up for the respondent's declared purpose of keeping other
labor organizations out of the plant. To accomplish this end, the re-
spondent provided the Association with every facility which might
make the organization dependent upon the respondent. The respond-
ent's interference with the Association affairs included the attendance
at the Association meetings of supervisory employees. The respond-
ent tied the Association to itself by a contract which recognized the
Association as the exclusive representative of all its employees. The
incorporation in the contract of a provision covering membership
constituted an obstacle to the free administration of the affairs of the
Association, since the provision was a barrier to change by the employ-
ees of the internal structure of the organization.
B. The Gwild
Even before the contract of May 3, 1937, the Association represent-
atives had under consideration the formation of the Guild. Butler,
the Association's chairman, testified that the reason for forming the
Guild was to "strengthen our organization, trying to find ways and
means to do it." Incorporation was decided upon as a means to that
CARTER CARBURETOR CORPORATION 1215
end. The decision was made by the Association representatives with-
out consultation with the membership, at huge. On May 28, 1937,
Butler, on behalf of the Association, wrote the respondent as follows :
Carter Carburetor Corporation Employes (sic) Association,
through its executive committee and with the approval of a sub-
stantial majority of its members, and of all employees, has decided
to seek a pro forma decree of incorporation under the Missouri
Statutes providing for incorporation of benevolent and educa-
i tional non-profit associations. The new corporation is to be called
"Carburetor Workers Guild" and is intended to include, take over,
and assume the entire membership and all physical effects, func-
tions, rights, and obligations of said Employees Association
including its rights and obligations under a contract.
Please consider this as a formal request for written approv-
al . . . of the above-mentioned transfer of contract rights and
obligations. `
The respondent replied to the Association's -letter on the same day,
accepting the transfer of the May 3 contract to the Guild, to become -
effective upon issuance of a decree of incorporation. The petition for
it decree was signed by Butler, Roland Werner, Esther Marlin, and
Dye Harris, who were respectively, president, vice president, secretary,
and a representative of the Association. A decree of the Circuit Court,
City of St. Louis, State of Missouri, was entered on June 2, 1937,
incorporating the Guild. ,
The officers and representatives of the Association continued as
officers and representatives of the Guild until the first election under
the Guild the following October or November. The minutes of the
Guild for Julie 19, 1937, record that "some minor expense had been
paid out of the proceeds of the old organization whose funds are now
depleted." Bylaws, entitled Articles of Agreement, were adopted.7
Application cards for membership in the Guild were circulated in all
departments of the plant, during working hours, beginning early in
6 Butler testified that he "thought that an election was held between the date of incor-
poration and the election in October or November " The minutes of the Guild fall to reveal
any such election The minutes of the first membership meeting of the Guild on June 19
record that "Chairman Butler introduced the executive committee to the members of the
Carter Carburetor Workers' Guild ." Inasmuch as the Guild 's articles of incorporation
provided for election of its officers by,the Guild members, rather than by the executive com.
mittee, as under the Association , we conclude that the officers and representatives of the
Association automatically became officers and executive committee members of the Guild
and remained as such until the fall of 1937.
7 The Articles of Agreement , as finally amended, made eligible to membership those eni-
ployees without authority to hire or discharge who were ` of a good moral character, and
have exhibited a high standard of workmanship . . , for a period of at least one (1)
month," whereas under the Association 's Articles of Organization , 3 months' employment
was required . Every application for membership had to be passed upon by the executive
committee , members of which were elected by departments rather than by the membership
as a whole Dues were set at 25 cents a month No regular meetings of the membership
were provided for A system of disability benefits was established , but no method of
luiaucinc thorn was ci eated
12 7 6 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
May 1937, and by the date of incorporation a substantial majority of
employees had signed such cards. - '
Contemporaneously with the circulation of nlemb^rship applica-
tions by the Guild, the respondent required each employee to sign a
card designating his representative for the purpose of bargaining
with the management. The respondent thus provided itself with in-
formation as to the attitude of its employees toward the Guild, as
well as their affiliation or lack of affiliation with the Guild: Notices
of Guild meetings were posted on the respondent's bulletin boards, as
had been the practice with respect to meetings of the Association.
Dues were frequently collected during working hours. Meetings of
the Guild, however, were held in a private hall. For the election in
October or November 1937, ballots were distributed among the em-
ployees in the plant by members of the executive committee during
working hours. After marking, the ballots were placed in boxes
throughout the plant, as had previously been the practice at-Associa-
tion elections.
The contract of May 3, 1937, between the respondent and the Asso-
ciation continued in effect until September 30, 1938, when a contract
was entered into between the respondent and the Guild. The con-
tract was renewed on October 12, 1939, and October 11, 1940. On
March 28, 1941, a few days before the Union was chartered," and
again on May 3, 1941, a month subsequent to its chartering, the con-
tract was revised. Aside from minor provisions, the revision of
March 28 provided for a general wage increase of 5 cents an hour.
The revision of May 3 granted an additional increase in the same
amount.
The contract of October 11, 1940, in addition to its other provi-
sions,' required the Guild to have a committee of representatives and
hire an attorney, and not to permit the membership of company em-
ployees having the right to hire or discharge. The extent of the
respondent's interference in the affairs of the Guild is further illus-
trated by its intervention in the Guild's disability benefit program.
Butler had several conversations with Ewart in which the latter op-
posed the continuation of the Guild's disability program on the
ground that the Guild officers "didn't know enough about what they
were doing." Ewart had opposed the adoption of this program
originally. As has been found,10 no means of financing such a program
"As heieinafter found, the Union was chartered on April 2, 11141
"The contract of October 11, 1940, was signed by the respondent on that date and by the
Guild on October 16. 1940 In it the respondent recognized the Guild as the exclusive
bargaining representative of its employees The contract provided that in laying off em,
ployees length of service should govern except where abilities were unequal In the tool
room, however, length of service was to be taken into consideration only where "piacticable "
Provisions were made for a 40-hour work \%eek, for time and one half for overtime, for
minimum wages, and for one week's vacation with pav for emplovees in the respondent's
vein ice toi one year of who had woiked 1,000 hours during the preceding 12 months
10 See footnote 7, supra
CARTER CARBURETOR CORPORATION 1277
was provided for in the Guild's Articles of Agreement. In practice
disability payments were made from membership dues.
Weed, the respondent's vice president and general manager, had dis-
cussions with Butler concerning the financing of the disability benefits
in which the alternatives of increasing the dues of Guild members, or
of granting the Guild a soft-drink concession in the plant, were con-
sidered. It was decided to grant the concession to the Guild, and Weed
arranged that soft drinks which had previously been furnished by an-
other concern, the profits from which went to the respondent, should
thereafter be furnished at a lower cost by a company in which he, Weed,
had a controlling interest, and two other of the respondent's officials
a part interest. The profits were to go to the Guild. Weed admitted
that the purpose of the concession was to "strengthen the disability
plan." The drinks were dispensed in a room in the plant known as
the Canteen, and from containers located throughout the plant. The
concession, according to Weed, proved profitable and "built them up a
substantial surplus which was the arrangement intended." At the
same time, the respondent granted the Guild milk and candy concessions
in the plant."
On August 11, 1941, the respondent posted on its bulletin board a
notice to its employees stating that it had been "informally advised"
by the Board's Regional Director that the Guild, in her opinion, did
not "meet the requirements" of the Act as a collective bargaining
agency, and that although the respondent did not agree with that
conclusion it would nevertheless "be unable to permit the free use by
the Guild of the space occupied by the Canteen and to bargain col-
lectively with the Guild." The notice went on to state that in accord-
ance with the provisions of the Act, the employees would be free from
any interference or discrimination by the respondent. Thereafter the
Guild was sent a bill in the amount of $27.40 for rent for the use of
the Canteen during the month of September. The effect of this notice
upon the Guild was discussed at a meeting of the Guild's executive
committee on August 12, and at a called meeting of the membership on
August 16. The Guild's attorney advised that the Guild be disbanded
as a labor organization, and a motion to that effect was unanimously
passed. The organization continued, however, to exist in its corporate
form. It does not appear from the record whether it held any further
meetings.
Conclusions with respect to the Guild
It is plain that the only substantial respects in which the Guild
differed from its predecessor,' the Association, were that Guild meet-
"For the 9-month period ending July 31. 1941, the soft-drink and mill: concessions to-
gether netted the Guild $4,142.52, and the candy concession $755 32 During the same
period the ieceipts from dues amounted to $3,447
1278 DECISIONS OF NATIONAL LABOR\ RELATIONS BOARD
ings were held outside the plant, the members of its executive committee
were not, paid by the iespondent for time spent at committee meetings,
and niennbers of the Guild paid dues of 25 cents a month. As has
been found, the announced purpose in forming the Guild was to
strengthen" the Association. It was designed to "include, take over
and assume the entire membership" and "all physical effects, functions,
rights and obligations" of the Association, including its contract with
the respondent.- The petition for incorporation was signed by the
principal officers of the Association who continued as officers of the
Guild solely by virtue of their position in the Association. Such
finances of the Association as remained at the time of the formation
of the Guild were taken over by. the Guild. Although it does not
appear that, after the formation of the Guild, supervisory employees
attended the Guild meetings, it is nevertheless clear that the respondent
interfered with the Guild's Administration. As has-been found, the
disability benefit program of the Guild was the subject of solicitude
on the part of the respondent's general manager, and in order to
strengthen the Guild in this respect, the respondent, through a com-
pany in which Weed owned a controlling interest, granted highly
profitable concessions to the Guild so that its financial structure might
be strengthened. Weed admitted that the concessions had the desired
effect. So far as the record reveals, no evidence was furnished to the
respondent at the time of the contract of September 30, 1938, that
the Guild represented a majority of its employees. No general meet-
ing of, the Association was held at which either, its abandonment or
the creation and incorporation of the Guild was voted. The respond-
ent, under the Guild, continued to deal with the same officials with
whom it had been accustomed to deal under the Association. By
transferring its contract with the Association to the Guild, the re-
spondent thereby' put its shunp of approval on the Guild even prior
to its formation. Thereafter, by entering into further contracts with
the Guild, the respondent utilized the Guild, as it had the Association,
to frustrate self-organization and defeat genuine collective bargaining
with its employees. The respondent's employees, members of the Asso-
ciation, an organization obviously formed and dominated by the re-
spondent, could not have seen in the Guild anything more than a suc-
cessor to the Association, and its continuance in another form. Under
these circumstances, the Guild was incapable of serving the respond-
ent's employees as their own independent labor organization, as
contemplated by the Act.1-
12Ct Westinghouse Electric it Manufacturing Co v National Labor Relations hoard,
112 F ( 2d) 657 (C C A 2), enf as mod. Matter of Westinghouse Electric & Manufactur-
ing Company and United Electrical Radio & Machine Workers of Abrierica , Local $ 410 1s
N L. R B. 300, aff'd 312 U S 660, Matter of Phelps Dodge Corpoiofioai-United Verde
It, ouch and Amei scan Federation of Labor, et al , 1=i N L R B 7.i2
CARTER CARBURETOR CORPORATION 1279
We find that the respondent, by the activities set forth above, in-
eluding the contribution of financial and other support, dominated
and interfered with the administration of the Association from July
5, 1935, to June 2, 1937, and thereafter dominated and interfered
with the administration of the Association's successor, the Guild, and
contributed financial and other support to it, and that the respondent
has thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
C. The discriminatory discharga of Clifford Reed and the discharges
of Elsie Walter and Owen Klusmeyer
1. The discharge of Clifford Reed
United Automobile Workers of America first began organizational
work among the respondent's employees in September 1940. The
Union was formed soon thereafter and formally chartered on April
2, 1941.
The complaint alleges that the respondent discharged Clifford
Reed on March 27, 1941, because of his membership in and activity
on behalf of the Union. The respondent contends that Reed was
discharged because it believed him guilty of misconduct toward Gene
Breeden, one of the respondent's female employees.
Reed was continuously employed by the respondent from 1933 to
March 27, 1941. During the latter part of his employment he was
working in the respondent's die-cast department. Reed joined the
Guild in 1937. In 1938, and again in 1939 and 1940, he served on its
executive committee. In October 1940, he was elected vice chairman
of the Guild by the executive committee. On November 30, 1940,
lie joined the Union. About a week later a special meeting of the
Guild's executive and labor committees was held, at which the chair-
man of the Guild, Titus, presided. Titus made a speech in which
he referred to the Union and stated that "They (the Union) have
a few members in Carters now . . . it has got to stop or there is
going to be trouble . . . we know who those members are." Reed
thereupon openly announced his own membership in the Union, and a
vote was taken as the result of which he was expelled as a member
of the executive committee and as the Guild's vice chairman. The
next day, and for about a week thereafter, Reed wore his Union
button to work. Also, between the time of his expulsion from office
in the Guild and his discharge, Reed accompanied organizers of the
Union to the homes of many of the respondent's employees, and
solicited their membership in the Union. He attended all the semi-
monthly meetings held by the Union.
Reed's affiliation with the Union and his expulsion as an officer
of the Guild were widely publicized by the Union., On February
44810..-42-von 39--S2
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6, 1941, organizers for the Union distributed about 1,400 copies of a
leaflet among the respondent's employees, holding up Reed as an
example for other employees to follow, and referring in,critical terms
both to Titus, chairman of the Guild, and to the respondent. The
following paragraphs are typical of the leaflet as a whole :
Several weeks two Clifford,Reed; vice-chairman of the Carter
Carburetor Workers Guild, joined the U. A. W.-C. I. O. His
experience as a Guild Representative proved to him that the
Guild was weak and had no real bargaining powers on matters
of importance to the Carter Workers.
. . . Reed is just one of some 400,000 other auto workers who,
sincerely believe in the U. A. W.-C. I. 0., and who was maul
enough to pass his opportunity to be a foreman, or to receive
some other promotion as a reward for acting as a dunnny of -
and - for - the company. (underlining in original,)
There are any number of other cases where Guild Officers are
taken care of by the company as their reward. Do not expect
(Don't) Tit-Us to be an exception .. .
On March 26, 1941, Wynn and Driscoll, organizers for the Union,
passed out literature just outside the plant. As Reed left the plant
at the end of his shift for that day, he stopped and entered into a
conversation with Wynn and Driscoll, which lasted for about 15
minutes.
On March 27, 1941, Reed Was discharged allegedly for molesting
a female employee while checking out .on the preceding day. The
Trial Examiner, after examining exhaustively the testimony of the
respondent's and Board witnesses, came to the conclusion that Reed
had not been guilty of the alleged misconduct.
The events surrounding Reed's discharge, we believe, show that
the respondent was not interested in determining the truth of the
charges against him. While the allegedly offended employee,
Breeden, who at no time made a formal complain t,73 was called to
Superintendent Nieman's office to prepare a written statement,
Nieman ordered Foreman Riggins to discharge Reed forthwith with-
out affording Reed the opportunity either to deny the charge or to
attempt to disprove it.'`' Indeed, subsequent to the discharge the
>3 when Breeden repotted for work on 'March 27, she asked the timekeeper , Koei ik,
whether he had seen the occurrence of,the previous afternoon When he replied in the
negative , Breeden , according to her own testimony , told him to "forget it " Koerik, on his
own initiative , repotted the incident to Reed ' s foreman , Morris Riggins
14Accoiding to Riggins, when lie told Reed the reason for the discharge , Reed ieplied,^
"Well, I' ll he damned What will I do now, quit " On the other hang Reed testified that
he replied , "Mores, you know that is a lie " We credit Reed's version of his reply, as did
the Trial Examiner
CARTER CARBURETOR CORPORATION 1281
respondent refused to disc] ose-Breeden's name to Reed for the pur-
pose of making his own investigation because, according to the
respondent, such disclosure might endanger her life. The respondent
introduced no evidence, however, to support its position that such
disclosure would in any manner jeopardize Breeden's life. More-
over, in advancing its defense that it maintained a policy protecting
the self-respect of its female, employees, the respondent cited a prece-
dent in the discharge of an employee,, Elmer Hastings, in December
1940, for using indecent language toward two women employees 13
In the Hastings case, however, the respondent conducted an investi-
gation, did not conceal from Hastings the names of his accusers, and
afforded him an opportunity to deny the charge. The respondent
offered no explanation for its failure to accord Reed similar
treatment.
On the basis of the entire record, we find, as did the Trial Exam-
iner, that the respondent initiated its investigation of charges against
Reed with the intent of building up a case against him; that in so
doing thei'espondent was motivated by a desire to rid itself of Reed
because of his activity on behalf of the Union; and that the respond-
ent discharged Reed on March 27, 1941, and thereafter failed and
refused to reinstate him, because of his membership in and activity
on behalf of the Union, thereby discriminating in regard to his hire
and tenure of employment, discouraging membership in the Union,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. The discharges of Elsie Walter and Owen Klusmeyer
The Trial Examiner, after examining exhaustively the evidence
relating to the discharges of Walter and Klusmeyer, found that they
were not discharged because of their -union activity and recommended
that the complaint be dismissed as to them. The Union has filed no
exceptions to the findings or recommendations of the Trial Examiner.
We have carefully examined the entire record and agree with,the con-
clusions of the Trial Examiner as to Walter and Klusmeyer. We
shall dismiss the complaint as to them.
The circumstances attending Hastings' discharge were as follows Hastings, though a
friend of Reed' s, iias not a member of the Union One day when Reed appeared at the
plant wearing his union button, he engaged Hastings in conversation Later, two women
employees asked Hastings where his own button was, stating that they considered he must
be a member of the Union because lie had been talking to Reed Thereafter, according to
Hastings, the two women ceased associating with Reed A few days later, just after Reed
had talked with three other women employees, Hastings approached them and remarked
that the two woven whom Reed had previously spoken to would have nothing further to
do with Reed since Reed started wearing his button On this occasion Hastings referred to
these two employees by a vulgar name They reported the incident to Nieman and Riggins
who conducted an investigation during which Riggins asked Hastings as to the truth of the
mattes Hastings admitted that lie may have said something offensile and offered to
apologize. Riggs ns discharged hum Hastings saw Ewart and again offered to apologize.
b'nvart promised to unestigate tie matter and later told Hastings that he was "through."
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF TUK UNFAIR LABOR PRACTICES UPON COMMLERGE
We find that the activities of the respondent set forth in Section 11I
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 unfair labor
practices; we will order it to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the administration of the Association, after July 5, 1935, and its suc-
cessor, the Guild, and contributed support to both organizations. The
effects and consequences of the respondent's domination and interfer-
ence with, and support of the Association and the Guild, as well as
,the recognition of the Guild as the bargaining representative for any
of its employees, have constituted an obstacle to the free exercise by
its employees of their right to self-organization and to bargain col-
lectively through representatives of their own choosing. Because
of the respondent's illegal conduct with regard to the Guild, it is
incapable of serving the respondent's employees as a genuine collective
bargaining agency. Moreover, the recognition of the Guild as a
representative of any of the, respondent's employees would be ob-
structive of the free exercise by the employees of the rights guaranteed
to them by the Act.
The respondent contends, however, that the issue concerning its
domination and support of the Guild is moot for the reason that the
respondent on August 11, 1941, posted notices stating that it would
not thereafter bargain collectively with the Guild and on August 16
the Guild was voluntarily dissolved by its members as a labor organi-
zation. The voluntary dissolution of the Guild has no effect upon
the respondent's commission of unfair labor practices by its domina-
tion, interference, and support of the Guild. The fact that the Guild
is no longer in existence as a labor organization is relevant only to the
question of whether the respondent should be required to disestablish
the organization.,' Under these circumstances, we will order the
respondent to cease and desist from such unfair labor practices and
to refuse to give the Guild any recognition as a collective bargain-
6 See Mattel of Autft X Company and United Packing House 11'orl,eis Local Industrial
Union # 81§, 15 N L R B 992. and the cases eited therein
CARTER CARBURETOR CORPORATION
ing agency, if it should ever return to active existence as a labor
organization."
We have also found that the respondent discriminatorily discharged
Clifford Reed because of his membership in and activities on behalf
of the Union. In order to effectuate the purposes and policies of
the Act, we will order that the respondent offer Reed full and im-
mediate reinstatement to his former or susbtantially equivalent posi-
tion and that it make whole Clifford Reed for any loss of pay he may
have suffered by reason of his discriminatory discharge, by payment
to him of a sum equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the
respondent's offer of reinstatement, less his net earnings 18 during said
period.
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. United Automobile Workers of America, Local 819, affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion, and Carburetor Workers' Guild and Carter Carburetor Cor-
poration Employees' Association were labor organizations, within the
meaning of Section 9, (5) of the Act.
17Matter of Flicks Body Company and Federal Labor Union No 2220, affiliated with the
A F L and Hicks Employees Union, 33 N. L. R B 858
As stated, there was in existence at the time of the hearing a contract between the
respondent and the Guild In view of the Guild' s disestablishment as a labor organization
and the respondent 's withdrawal of recognition from it as a representative for purposes of
collective bargaining , the contract is no longer in effect. Any continuation , renewal, or
modification of the contract would, of course , perpetuate the conditions which have deprived
employees of the respondent of tie rig-hits guaranteed them by the Act and would render
ineffectual portions of our order. Nothing in this order should be taken, however , to require
the respondent to vary those wage, hour, and other substantive features of its relations
with the employees themselves, if any, which the respondent established In performance of ,
the contract as extended , renewed, modified, supplemented , of superseded . Cf. National
Licorice Co. v. National Labor Relations Board, 309 U. S 350, aff 'g as mod. 104 F. (2d)
655 '(C. C. A. 2), enf'g as mod. 7 N. L! R. B 537; National Labor Relations Board v.
J. Creenebauin. Tanning Co., 110 F (2d) 984 (C. C. A. 7), enf'g as mod 11 N. L. R. B. 300,
cert den. 61 S Ct. 18.
As we have also noted , the respondent granted the Guild valuable soft-drink , milk, and
candy concessions in its plant with which to finance the Guild' s disability program. So long
as the Guild existed as a labor organization , the respondent 's bounty in this respect served
to defeat the purposes of the Act However, the Guild has been voluntarily disestablished
as a labor organization . So long as the Guild is not operated as a labor organization our
order is not intended to vary such of the respondent ' s relations with the Guild as ate
established as a result of the soft-drink, milk , and candy concessions
to By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would nor have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R B. 440 . Monies
received for work performed upon Federal , State, county, municipal , or other work-relief
projects shall be consideed as earnings See Republic Steel Corporation v. National Labor
Relations Board, 311 U. S. 7.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By dominating and interfering with the administration of Carter
Carburetor Corporation Employees' Association from July 5, 1W),
to June 2, 1937, and thereafter dominating and interfering with its
successor,' Carburetor Workers' Guild, and by contributing support
to said organizations, the respondent has engaged in"and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of the
Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Clifford Reed, and thereby discouraging membership in
United Automobile Workers of America, Local 819, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) 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. By discharging and thereafter refusing to reinstate Elsie Walter
and Owen Klusmeyer, the respondent has not engaged in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Carter Carburetor Corporation, St. -Louis, Missouri, and its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Carter
Carburetor Corporation Employees' Association or its successor, Car-
buretor Workers' Guild, or with the formation or administration of
any other labor organization of its employees; and from contributing
support to Carter Carburetor Employees' Association or its successor,
Carburetor Workers' Guild, or to"any other labor organization of its
employees ;
(b) Discouraging membership in United Automobile Workers of
America, Local 819, affiliated with the Congress of Industrial Or-
ganizations, or any other labor organization of its employees by dis-
crimination in regard to hire or tenure of employment or any term
or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
CARTER CARBURETOR CORPORATION 1285
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual
aid or protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Refrain from recognizing Carter Carburetor Corporation Em-
ployees' Association or its successor, Carburetor Workers' Guild, if it
should ever return to active existence, as a representative of any of the
respondent's employees for the purpose of dealing with the respondent
with respect to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(b) Offer to Clifford Reed immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges;
(c) Make whole Clifford Reed for any loss of pay he may have
suffered by reason of his discharge, by payment to him of a sum of
money equal to that which he normally would have earned as wages
from March 27, 1941, the date of his discriminatory discharge, to the
date of the respondent's offer of reinstatement, less his net earnings
during said period;
(d) Immediately post in conspicuous places throughout its plant
in St. Louis, Missouri, and maintain for a period of at least sixty
.(60) consecutive days from the date of posting, notices to its employ-
ees stating 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 and that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within ten (10) days from the date of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent discriminated in
regard to the hire and tenure of employment of Owen Klumeyer
and Elsie Walter.
1