Diamond T Motor Car Co.

National Labor Relations Board - Board Decisions

Dec 7, 1945

64 N.L.R.B. 1225 (N.L.R.B. 1945)

In the Matter of DIAMOND T MOTOR CAR COMPANY and BUILDING
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 73, A. F . L.
Case No. 13-C-2414.-Decided December 7, 195
DECISION
AND
ORDER
On January 11, 1945, the Trial Examiner issued his Intermediate
Report in the above -entitled proceeding , finding that the respondent
had not engaged in any unfair labor practices affecting commerce and
recommending that the complaint be dismissed , as set forth in the
copy of the Intermediate Report annexed hereto. Thereafter, the
respondent and the Union duly filed exceptions to the Intermediate
Report and supporting briefs. Oral argument before the Board in
Washington , D. C., requested by the Union and the Independent,
was scheduled for a day certain , but was thereafter waived by agree-
ment of all the parties.
The Board has considered the rulings of the Trial Examiner at
the hearing , and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Inter-
mediate Report, the exceptions and briefs , and the entire record in
the case, and hereby adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner , with the additions noted below.
1. The Trial Examiner, relying on the doctrine enunciated in the
Rutland Court case,' found that the respondent did not violate the
Act in discharging Arquilla and Johns, because it did not know, at
the time it discharged these two employees pursuant to a valid union-
shop agreement with the Independent , that the Independent had
expelled them and demanded their discharge because of their activities
on behalf of the Union at a time when a question concerning repre-
sentation was pending . We agree with the Trial Examiner that on
the facts in this case such knowledge is essential to a finding of a viola-
tion of the Act on the part of the respondent.
2. The Union excepted to the Trial Examiner 's finding, on the
ground that the evidence in this case shows that the respondent knew
that the Independent expelled the two employees and demanded their
discharge because of their past activities on behalf of the Union
1 Matter of Rutland Court Owners, Inc ., 44 N. L R B 587 ; 46 N L. It. B. 1040.
64 N. L R. B., No. 205.
1225
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the pendency of the representation proceeding. The Trial
Examiner made no finding as to the reason for the Independent's
expulsion of these employees and its demand for their discharge.
However, even assuming that the reason was as stated by the Union,
we agree with the Trial Examiner's evidentiary findings and conchu-
sion that the evidence falls short of establishing knowledge of such
reason on the respondent's part. While the respondent knew of the
activities of these employees on behalf of the Union during the
pendency of a question concerning representation, it does not follow
that the respondent mist have deduced that the Independent was
motivated by such activities and not by lawful considerations in
demanding their discharge.
3. The Union further excepted to the Trial Examiner's finding,
on the ground that the respondent, even if it lacked knowledge of the
Independent's unlawful reason for seeking the discharges, had a duty
to inquire concerning the reason, particularly because the respondent
knew that the two employees had been watchers for the Union at the
consent election 3 weeks before their discharge. Without at this time
passing on the merits of the Union's contention under other circum-
stances, we find that the circumstances and facts disclosed by this
record imposed no duty of inquiry upon the respondent.
4. The Union also excepted to the Trial Examiner's finding, on
the ground that the agreement pursuant to which the respondent dis-
charged Arquilla and Johns was invalid because executed on March 25,
1944, during the pendency of a question concerning representation,
as the respondent knew. The record shows, however, that thereafter
the Union joined the Independent and the respondent in an agreement
for a consent election to be conducted by the Regional Director. This
election resulted in a clear majority for the Independent. When
the Union subsequently failed to object to the election, the Regional
Director issued a "Consent Determination of Representatives" to the
effect that the Independent was the exclusive representative of all
the employees in the agreed appropriate unit. Only thereafter, was
the respondent shown to have put the closed-shop agreement into
effect by making the discharges here involved. Under such circum-
stances, and in the absence of any attempt by the Union to invalidate
the result of the election on the ground that it did not reflect the free
choice of the employees, we are satisfied that after the election the
respondent could have made the agreement here involved in entire
conformity with the requirements of the proviso to Section 8 (3).
To hold the agreement in this case invalid under the proviso, merely
because the respondent did not go through the technical maneuver of
signing a new piece of paper after the election embodying identical
terms, would be a distortion of the intent of the proviso and a perver-
sion of the purposes of the Act. Moreover, the instant case was not
DIAMOND T MOTOR CAR COMPANY 1227
litigated on any theory that the agreement was invalid for the reason
now advanced by the Union; indeed, the Union made such an argu-
ment for the first time in its supplemental brief before the Board. We
find no merit in the Union's exception.
5. The Union finally argued in its supplemental brief before the
Board that the respondent unlawfully refused to reinstate Arquilla
and Johns, as alleged in the Board's complaint, by failing to offer them
reinstatement upon learning at the hearing before the Trial Examiner
that the Independent had obtained their discharge because of their
past union activities during the representation proceeding. We find
this argument without merit. The respondent, having lawfully dis-
charged the two employees, did not thereafter become obligated to
offer them reinstatenent. Accordingly, we shall dismiss the complaint
herein.
ORDER
Upon the basis of the foregoing findings of fact and the entire
'record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board hereby
orders that the complaint against the respondent , Diamond T Motor
Car Company , Chicago, Illinois , be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Russell Packard , for the Board.
Miller, Gorham , Wescott & .Adams , by Mr. Edward R Adams. of Chicago, Ill.,
for the respondent.
Mr. John F. Cusack , of Chicago, Ill., for the Independent.
Mr. William T. Hanrahan , of Berwyn , Ill., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on June 10, 1944, by Building Service Employees Inter-
national Union, Local 73, A. F. L., herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Thirteenth Region (Chicago, Illinois), issued its complaint dated August 18, 1944,
against Diamond T Motor Car Company, herein called the respondent, alleging
that the respondent had engaged in and was engaging in untair labor practices,
within the meaning of Section 8 (1) 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, accompanied by notice of hearing, were duly served upon the respond-
ent, the Union, and Automotive Workers Industrial Union, Inc., herein called
the Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent, on or about June 7 and 9, 1944, discharged Anthony Arquilla
and Ralph Johns, respectively, because of their membership in and activities on
behalf of the Union, and thereafter refused to reinstate them, and has thereby
interfered with, restrained, and coerced its employees in the exercise of the lights
guaranteed in Section 7 of the Act.
Thereafter, the respondent filed its answer dated August 25, 1944, admitting the
allegations of the complaint with respect to the nature of its business and denying
the commission of any unfair labor practices.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a bearing was held at Chicago, Illinois, on September 7
and 8, 1944, before the undersigned Josef L. Hektoen, the Trial Examiner duly
appointed by the Chief Trial Examiner. At the opening of the hearing, the
Independent filed its motion to intervene ; it was granted, without objection, by
the undersigned. The Board, the respondent, and the Independent were repre-
sented by counsel and participated in the hearing ; the Union appeared by its
representative. Full opportunity to examine and cross-examine witnesses and
to introduce evidence bearing on the issues was afforded to all parties. During
the hearing, the motion of counsel for the Board to amend the spelling of the
name of one of those alleged to have been discriminatorily discharged was
allowed, without objection. At the close of the Board's case, the motions of
counsel for the respondent and for the Independent to dismiss the complaint were
denied by the undersigned ; they were reiterated at the close of the hearing, ruling
was reserved by the undersigned, and they are now disposed of as hereinafter
indicated. At the close of the hearing, the motion of counsel for the Board to
conform the complaint to the proof with respect to the spelling of names and
dates was allowed by the undersigned
Counsel for the Independent argued orally before the undersigned at the close
of the hearing, and briefs were thereafter received by him from counsel for the
Board and for the respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Diamond '1' llotor Car Company, is an Illinois corporation
having its principal place of business in Chicago, Illinois It is engaged in the
manufacture and sale of motor vehicles and service parts During 1943, it
bought raw materials consisting of steel, wire. automobile parts, and similar
items having a value in excess of $50,000,000, more than 50 percent thereof from
points without the State of Illinois. During the same period it sold finished
products having a value in excess of $50,000.000. more than 50 percent thereof to
points without the State of Illinois. The respondent admits that it is engaged in
commerce, within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Building Service Employees International Union, Local 73, is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to membership
employees of the respondent.
Automotive Workers Industrial Union, Inc, is a, labor organization admitting
to membership employees of the respondent.
III. THE UNFAIR LA13OR PRACTICES
A Chronology of events
The respondent and the Independent have enjoyed contractual relations since
1937,' and since 1942 have been functioning under union-shop contracts, the last
of which was executed March 25, 1944, and was effective to February 5, 1945.
1In 1939, the Board found the Independent to have been company dominated (Matter of
Diamond T Motor Car Company, et al., IS N. L. R. B. 204). In 1941, the Circuit Court of
Appeals for the Seventh Circuit set aside the Board's order (Diamond T Motor Car
Company v N. L. R. R., 119 F. 978 (C C. A. 7)) the matter was not reviewed by the
Supreme Court.
DIAMOND T MOTOR CAR COMPANY 1229
After unsuccessful organizational efforts in 1937-8 by a union affiliated with
the Congress of Industrial Organizations, the respondent was free of attention
from affiliated unions for a period of some 5 years.
Early in 1943, Local 713, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, affiliated with the American Federa-
tion of Labor, began organization of the employees at the respondent's ware-
house.' In the fall of 1943, organization of the main plant was also undertaken
and on December 3, Joseph de Lavan, union organizer, requested recognition of
that organization as the exclusive representative of all of the respond-
ent's employees. The respondent, by its counsel, refused the request on the
ground that the respondent was under contract with the Independent. De Lavan
thereafter, on the same day, filed a petition for investigation and certification of
representatives with the Board's Regional Office. It was docketed as Case No.
13-11-2201 and alleged the appropriate unit to be "All production employees of
the company, excluding skilled machinists and motor truck mechanics and
foremen."'
During December 1943, or early in 1944, the Independent issued the following
leaflet to the employees in the plant:
NOTICE TO ALL MEMBERS
It has come to the attention of your Executive Board that some people
are attempting to have you adopt the principle of Dual Unionism They are
asking you to attend meetings, to sign application blanks, and to do other
acts in conflict with the purposes of our Union
We wish to call to your attention Article 3 of your contract of employ-
ment with the Company, which requires that you remain members in good
standing with our Union, in order to continue your employment. The War
Labor Board and the Courts have confirmed the legality of such a provision
in labor contracts, and have recognized the duty of employers to discharge
employees who fail to live up to this provision in a contract.'
Article 3 of your Union's constitution clearly specifies the requirements of
a member to remain in good standing.' Dual Unionism is a violation of the
2 The warehouse is one of three places of business maintained by the respondent In
Chicago ; about 600 persons are employed there The main plant employs about 1,000 poi-
sons, and there are about 50 employees at the service station.
3 The then existing contract between the respondent and the Independent was effective
to February 4, 1944. It provided that "Sixty days prior to the termination of this agree-
ment both parties shall meet to negotiate its renewal . . . In the event that such negotia-
tions shall not result in the execution of a new agreement prior to the expiration of this
agreement , . . . this agreement shall remain in full force and effect for the further period
of not exceeding sixty ( 60) days, or until a new agreement shall have been negotiated,
whichever sooner occurs ." It was therefore not a bar to the union petition . Negotiations
for Its renewal continued to March 25 , 1944 , when the present contract was executed by
the parties , retroactive to February 5, 1944.
4 The pertinent provision of the contract reads as follows :
(Article 3, Section 1) • It is a continuing condition of employment with the Company
that employees covered by this agreement , both present employees and new employees,
shall be and remain members in good standing in the Union. Employees losing their
membership in the Union shall not be retained in the employ of the Company.
The pertinent provision of the Independent 's constitution reads as follows :
(Article III, Section 2) • If any member violates any of the articles of the Union's
constitution, by-laws, rules or regulations , or if any member ' s conduct or action
becomes detrimental to the welfare and interest of the Union , or its members, such
member may be temporarily deprived of all privileges and rights in this Union or
the property thereof by the Executive Board, or he may be permanently expelled and
he shall forfeit all rights or claims In or against the Union.
There Is nothing in the record to Indicate that the respondent had knowledge of this
provision of the constitution.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Constitution and subjects every person guilty of it to expulsion from the
Union, and in turn, dismissal from the employment of the Company.
Do not be misled by False Propaganda and Enipty Promises Study what
you have against what other working classes are getting in nearby indus-
trial plants Do not sign any application blanks without giving full con-
sideration to the dangers flowing from your hasty action.
,No Union is stronger than the members make it, and your fellow mem-
bers intend to keep what they carefully built. Bad timber and Agitators
will be "weeded out", and your Union will continue to function as the sole
collective bargaining agent for all employees of Diamond T A word to the
wise should be sufficient-we hope it will not he necessary to take official
action to punish any one.
AUTOMOTIVE WORkr•iis Inn1TCTIIAJ. UNION, INC
By ExEcu1IVE BOARD.
There is no evidence that this leaflet came to the attention of the respondent's
management.
On February 18, 1944, de La van filed a first amended petition alleging the
appropriate unit to be "all production employees of the Company, except for
foremen, guards and clerical employees." This petition was filed in the name
of "Joint Organizing Conimiitee-Diamond T Division, American Federation
of Labor" Evidence taken at a hearing on this petition held April 24, 1944,
pursuant to notice, shoes that the 1oiut Organizing Committee consisted of
Building Service Employees International Union, Local 73: Automobile Gir-
riage, Car and Equipment Painters Local Union No 39U: International Asso-
ciation of Machinists, District Lodge No. 8, and International Brotherhood of
Teamsters, Local No 713, all affiliated with the American Federation of Labor
The April 24 hearing resulted in the execution of an agreement for a consent
election to be conducted by the Regional Director, the agreed unit being "All of
the employees of the Conipany in Cook County, Illinois, including plant clerical
and watchmen but excluding superintendents. assistant superintendents, de-
signing, experimental and f.ictory engineers, draftsmen, foremen. militarized
guards and office employees"
The consent election conducted by the Regional Director on 111ay 1:1, 19-14, ssas
won by the Independent' and of May 22. the Regional Director issued his con-
sent determination of representatives finding that the independent was the ex-
clusive representative for purposes of collective bargaining of the respondent's
employees within the agreed unit.
6 The name of this Union appears in the iiulsci ipt as "Geneial Service 19mployees Union,
Local No 73
From tine context of the records in both the representation case anil the instant complaint
case, it is clear to the undersigned, who finds, that this name was either incorrectly given
by the witness testifying in respect to the make-up of the Joint Organizing Committee, or
incorrectly transcribed ; that the proper name of said union , the charging organization
in the instant case, is "Building Service Employees International Union, Local 73 ;" and
that all parties have at all times so considered it No "General Service Employees Union"
is listed in the standard compendiums on the subject of labor organizations
The tally of ballots was as follows
Number of eligible voters:-------------------------------------------- 1, 677
Valid votes counted------------------------------------------------- 1,493
Votes cast for the Independent---------------------------------------- 856
Votes cast for the A F. of L------------------------------------------ 599
Votes cast against participating unions--------------------------------- 81
Challenged ballots - ------------------------------------------------- 9
Void ballots--------------------------------------------------------- 10
DIAMOND T MOTOR CAR COMPANY 1231
On June 7, the respondent discharged employee Anthony Arquilla, and on June
12, 1944, employee $alph Johns, both pursuant to notice from the Independent
that said employees were no longer in good standing therein.
B The drschnrges
Organizer de Luxor testified, and the undersigned final,, that beginning in
December 1943, paid union employees distributed literature outside the main
plant of the respondent The tempo of the Union's drive increased during the
spring of 1944, and on about April 1, de Lawns appointed employees Arquilla,
Johns, and George Nisivaco to take charge of a personal campaign among the
employees and to be watchers at the anticipated Board election. Nisivaco,
whose work on an assembly line in the plant closely confined him, took little part
in the campaign although lie acted as a watcher at the election.
Anthony Arquillat began work for the respondent on December 7, 1942, and at
the time of his discharge on 'June 7. 1944, was affixing bumpers and cables to
trucks His work took hun about throughout the assembly department and into
other parts of the plant When lie first began soliciting union memberships in
the plant, Arquillai told Foreman Ralph Barto that he thought the "A F. of L.
has a good chance, and I think they aie going to win " I-larto replied, "You had
better watch yourself, otherwise something may happen " s Arquilla marked
the initials of the A F of L on trucks. conducted "straw cotes" in plant rest-
rooms, and just pilot, to the election told Edward Synek, vice president of the
Independent, that, he thought the A F of L would will
On May 13, the Saturday before the election. Aiquilla obtained a clipping from
a local newspaper of a classified adNertisement appearing therein on the same
morning and reading as follows:
'I` L of D T At Co other outfit won't deal ;ii any pl•ice, suggest legal cult
to retain assets Found out they aie very solid AdNise before .Mon C'
Argtllla interpreted it to indicate that T. M. Law, president of the Independent
v ms being communicated with in this way by John F Cusack, its counsel, and
that some soit of "deal" in connection with the election was being referred to
He thereupon showed the cfippiiig to some 60 employees and told them of his
interpretation He smiilarly spoke to Foreman Ba rto, who reiterated his warn-
ing that Aiquilla *'watch" himself, and to Raymond Bochantme, who although he
voted in the election. was acting foreman in Barto"s absence during the week
thereot
On May 15, Arquilla acted as a watcher tot the A. F. Of L. at the election
On W. Arquilla called at the i espondent's pet sonnet office respecting pay
foi his time while acting as a watcher. When lie emerged therefrom, Steward
Louis Michelin, of the Independent, asked him if he had already been discharged.
Arquillai ieplied in the negative, whereupon Michelin told him that Leo Perlam,
member of the Independent's executive board, had inquired for him and adjured
him to "watch" himself Bochantine and another employee also asked him if
he had been discharged
On about May 18, Arquilla had an accident while driving a truck in the plant.
He was disciplined by the respondent by it 5-day lay-off On appeal by the Inde-
pendent's grievance committee, the Iespondent seduced the length of the lay-off
to a day and a half or 2 days
8 Arquilla ' s undomed and credible Iestinion}
The record does not reveal the identity of the nerson of prison, Nihu inserted the
adveitiseruent
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,On June 6, the Independent wrote the respondent the following letter :
We wish to advise you that Anthony Arquilla, number 112 in Department
XC of the Company is no longer a member in good standing of our Union.
After service of notice upon him, he appeared before the Executive Com-
mittee of the Union on June 6th, A. D. 1944, and after a full bearing of the
facts in his case, he was found guilty of violating the Constitution and
By-Laws of our Union and more particularly was found in violation of
Section 2 of Article 3 of our Constitution 10 His name was ordered stricken
from the roll of members in good standing in our Union
Under the circumstances, and in accordance with the provisions of our
contract, he is no longer eligible for employment with the Company and
we request his discharge.
On June 7, C. S Becker, personnel director of the respondent, discharged
Arquilla, the release slip stating that the reason for such action was that he
was "No longer a member in good standing of our Union ..."
There is no evidence that Arquilla ever formally joined the A F. of L
Ralph Johns, originally employed by the respondent in October 1941, was
inspecting and driving army trucks before and at the time of his discharge on
June 12, 1944. His work took him throughout the plant and in the course thereof
he spoke to employees of the A. F. of L, chalked its initials on trucks, conducted
a "straw-vote" in a plant rest-room," and on May 13, told Glenn Bruce, whom
he described as a "key boss", but whom the undersigned finds to have been a
fellow employee, that he thought the A. F of L. would win the imminent election
On the same day, as the result of a conversation with another employee, Johns
procured a copy of the newspaper containing the advertisement described above,
showed it to about 12 employees, and told them that lie believed the president
and counsel of the Independent were making a "deal" respecting the election.
Johns acted as "chief watcher" for the A F of L at the election on May 15.
On May 16, he endeavored to pay his monthly dues to the Independent in the
plant 12 but was prevented from doing so by the collector's inability to change a
$5 bill.13 That evening Johns suffered an accident while on the way to his home
and was necessarily out of the plant for more than 3 weeks.
On June 6, the Independent wrote the respondent the following letter:
We wish to, advise you that Ralph Johns, number 54 in Department I of
the Company, is no longer a member in good standing of our Union.
After service of notice upon him, he failed to appear before the Executive
Committee of the Union on June 6, A. D 1944, and after a full hearing of
the facts in his case, he was found guilty of violating the Constitution and
By-Laws of our Union and more particularly was found in violation of Sec-
tion 2 of Article 3 of our Constitution 14 His name was ordered stricken from
the roll of members in good standing in our Union.
Under the circumstances, and in accordance with the provisions of our
contract, he is no longer eligible for employment with the Company and we
request his discharge.
10 See footnote 5, supra.
"The record reveals that no employees knew of his activity in doing so, however.
12 They were due the day before.
13 Statements by counsel for the Independent, made at the hearing, indicate that dues
arrearage automatically placed the delinquent member in bad standing. The constitution
of the Independent provides, however, that "The failure of any member to pay the dues,
fixed herein, within ten (10) days of the date due, shall subject said member to suspension
at the discretion of the Executive Board " It is thus plain, and the undersigned finds, that
non-payment of dues (lid not, ipso facto, result in bad standing.
14 See footnote 5, above.
DIAMOND T MOTOR CAR COMPANY 1233
On June 9, Johns interviewed Becker and informed him that he would return
to work on June 12.1" Becker showed him the Independent's letter and indicated
that the matter would be taken up with Johns when he reported on the latter'
dale
On June 12, Becker discharged Johns, telling him, "It is too bad you got mixed
up in this union business, Ralph . . . You have got a fine record here . . . You
have done your job well." 16
There is no evidence that Johns ever formally joined the A F. of L.
Simultaneously with its receipt of the Independent's letters regarding Arquilla
and Johns, the respondent received the following letter from the Independent
also dated June 6:
We wish to advise you that Joseph Rainey, number 425 in Department
MB at the warehouse branch of the Company, is no longer a member in,
good standing of our Union.
After service of notice upon him, he appeared before the Executive Com-
mittee of the Union on June 6th, A. D. 1944, and after a full hearing of
the facts in his case, he was found guilty of violating the Constitution and
By-Laws of our Union and more particularly was found in violation of
Section 2 of Article 3 of our Constitution. His name was ordered stricken
from the roll of members in good standing of the Union.
Under the circumstances, and in accordance with the provisions of our
contract, he is no longer eligible for employment with the Company and
we request his discharge
The respondent thereafter discharged Ramey Nothing further respecting his,
case is revealed by the record.
The evidence reveals, and the undersigned finds, that in addition to Arquilla
and Johns, at least six other employees acted as watchers for the A. F. of L.
at the election. The Independent did not request that the respondent discharge
any of such employees and none was discharged.
C Concluding Bindings
Any finding of discrimination by the respondent within the meaning of
Section 8 (3) of the Act in this case must be based upon the rationale of the
Board's decision in the Rutlwnd case." In that case the Board held that dis-
charges by an employer, pursuant to demand of a union holding a validly
made closed-shop contract, because of activities by the employees on behalf
of a rival union at a time when a question concerning representation was
pending, were discriminatory despite the provisions of the proviso to Section
8 (3) of the Act 1' where the employer knew of the reasons upon which the
union 's request was based. The necessity of such knowledge by the employer
was emphasized in the Wallace case."
Absent such knowledge, the respondent in this case, pursuant to the terms
of the valid and subsisting contract between it and the Independent, was under
a legal duty to forthwith honor requests for the discharges of the employees
15 Johns was finally "discharged" by his doctor on June 12.
16 Johns' uncontradicted and credible testimony
17 Matter of Rutland Court Owners, Inc., 44 N. L R B 587, 46 N. L. R. B. 1040.
19 The proviso is that nothing contained in the Act "shall preclude an employer from
making an agreement with a labor organization (not established, maintained, or assisted
by any action defined in this Act as an unfair labor practice) to require, as a condition of
eniployement, membership therein . . .
39 Wallace Corporation v N. L R B., 323 U. S. 248, aff'g 141 F. (2d) 87 (C. C. A. 4), enf'g
50 N L R B 138
670417-46-vol 64 7:1
1234 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
involved and to remove them from its pay roll. In the opinion of the under-
signed, the proof fails to demonstrate knowledge by The respondent of the
reasons for such requests by the Independent.
As has been found above, there is no evidence that the Independent' s leaflet
distributed about the first of the year carne to the respondent's attention, nor
that if it did, the respondent either had reason to or did in fact connect it in
any way with the requests for the discharges received by it some 6 months
thereafter. The casual knowledge of Arquilla's activities gained by Barto
and Bochantine cannot, in the absence of any showing to that effect, be found
to have informed the management of the respondent of the actual reason for
the Independent's demand that he be dismissed . To find otherwise would be
to indulge in here speculation. The same is true of Becker's statement to
Johns that he thought it a pity Johns had become "mixed up in this union
business ," which to the undersigned indicates at most that Becker knew of
Johns' A. F. of L. partisanship; he had the same knowledge respecting Arquilla,
as well as the at least six other employees who had publicly displayed their
partisanship by acting as A. F. of L watchers at the election and whose dis-
charges were not thereafter requested by the Independent. Furthermore, it
will be remembered that simultaneously with the demands respecting Arquilla
and Johns, Becker had also received a demand, couched in identical terms, for
the dismissal of Ramey.
Under these circumstances, the Board having failed to sustain the burden of
proof of showing that the respondent had knowledge of the reason or reasons for
the Independent's requests, the undersigned will recommend that the complaint
be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case. the undersigned makes the following:
Coxcrusions of LAW
1 The operations of the respondent, Diamond T Motor Car Company, constitute
trade, traffic, and commerce among the several States. within the meaning of
Section 2 (6) of the Act .
2. Building Service Employees International Union, Local 73. A. F. L., and
Automotive Workers Industrial Union. Inc, are labor organizations, within the
meaning of Section 2 (5) of the Act.
3 The respondent has not engaged in unfair labor practices, wt ithin the meaning
of Section 8 (1) of the Act
4 By discharging and rettising to reinstate Anthony Arquilla and Ralph Johns,
the respondent has not engaged in unfair labor practices, within the meaning
of Section 8 (3) of the Act
RECOMMENDATION S
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint against Diamond T Motor Car
Company be dismissed in its entirety
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board. Series 3 , as amended , effective November 26,
1943, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article 11 of said Rules and Regulations file with the Board. Roch-
ambean Building, Washington. D C, an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding ( including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
DIAMOND T MOTOR CAR COMPANY 1235
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or briet, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring the
case to the Board.
JOSEF L. HEKTOEN,
Trial Examiner.
Dated January 11, 19451