Motor Products Corp.

National Labor Relations Board - Board DecisionsAug 26, 1941

34 N.L.R.B. 1236 (N.L.R.B. 1941)

In the Matter of MOTOR PROnucrs CORPORATION and CLAUDE B. ArrLE, STEVE GILLOCK, JOSEPH G. GREEN, LYNN MCKEEHAN AND ROSEMARY O'MARA Case No. C-1638.-Decided Augutst 26, 1941 Jurisdiction : automobile parts manufacturing industry. Unfair Labor Practices Discrimination: charges of, dismissed. The discharge of an employee who engaged in provocative conduct in a factional dispute is justified where the employer's adherence to a pub- lished policy of impartiality between the factions supports the finding that it was motivated by a genuine and lawful desire to maintain dis- cipline and to operate its plant without undue disturbance and that it discharged such employee because it believed that his presence, quite aside from his union preferences, was an obstacle to the attainment of those ends Practice and Procedure : complaint dismissed. Mr. Earl R. Cross, for the Board. Hill, Hemblen, Essery & Lewis, by Mr. John Kyle Worley, of Detroit, Mich., for the respondent. Mr. Valois E. Crossley, Mr. Arthur C. Lumley, and Mr. J. L. Busby, of Detroit, Mich., and Mr. James A . Glenn, of Washington, D. C., for the -A. F. L. Mr. Maurice Sugar and Mr. Jack N. Tucker, of Detroit, Mich.. for the C. I. O. Miss Ann Landy, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Claude B. Apple, Steve Gillock, Joseph G. Green, Lynn McKeehan, and Rosemary O'Mara, herein sometimes called the discharged employees, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), is- sued its complaint dated April 2, 1940, against Motor Products Cor- poration, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 34 N. L. R. B., No. 120. 1236 MOTOR PRODUCTS CORPORATION 1237 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint accompanied by notice of hearing was duly served upon the respondent and upon the discharged employees. The complaint alleged in substance (1) that in October 1939 the respondent discouraged membership in International Union, United Automobile Workers of America, affiliated with the American Fed- eration of Labor, herein called the A. F. L., by discharging from employment and thereafter refusing to employ Apple, Gillock, Green, McKeehan, and O'Mara because they joined and assisted the A. F. L., and (2) that thereby, by warning its employees that unless they joined the International Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, herein called the C. 1. 0., their employment would be insecure, by threatening employees with discharge if they engaged in activities on behalf of labor organizations other than the C. I. 0., by permitting certain employees, shop stewards, officers, and committeemen of the C. I. O. on its premises and during working hours to threaten, in- timidate, and coerce other employees into abandoning their member- ship in and or support of the A. F. L., by conspiring with the C. I. O. to create a pretext for the discharge of the five employees named in the complaint, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 17, 1940, the respondent filed its answer to the complaint. The answer admitted some of the allegations of the complaint as to the nature of the respondent's business, denied the allegations of unfair labor practices, and averred affirmatively that the five in- dividuals named in the complaint were discharged for cause and with the previous knowledge and consent of the sole bargaining agent of the respondent's employees, namely the C. I. O. Pursuant to notice duly served upon the parties, a hearing was held in Detroit, Michigan, from April 22 to 26, 1940, inclusive, be- fore William P. Webb, the Trial Examiner duly designated by the Board. The Board, the respondent, the A. F. L., and the discharged employees were represented by counsel and participated in the hear- ing? During the first day of the hearing, the C. I. O. appeared by ,counsel and made a motion for leave to intervene. The Trial Ex- aminer granted the motion but restricted the participation of the C. I. O. to matters affecting it. Thereafter the C. I. O. participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. 1 The discharged employees were represented by counsel for the A. F. L. 451269-42-vol. 34-79 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the close of the Board's case, and again at the close of the hearing, the respondent moved to dismiss the complaint. The Trial Examiner reserved ruling on these motions and subsequently denied them in his Intermediate Report. During the course of the hearing the Trial Examiner made numerous rulings on other motions and.on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 12, 1940, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties. In it he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act and recommended that the respondent cease and desist from the unfair labor practices found and take certain affirmative action in order to effectuate the policies of the Act. Thereafter the respondent and the C. I. O. filed exceptions to the Intermediate Report and requested oral argument before the Board. A hearing for the purpose of oral argument was accordingly held before the Board at Washington, D. C., on September 17, 1940. The respondent, the discharged employees, and the C. I. O. were repre- sented by counsel and participated in the argument. The respondent and the C. I. O. also filed briefs with the Board. The Board has fully considered the exceptions and briefs filed by the respondent and by the C. I. O. and, in so far as the exceptions are consistent with the findings of fact, conclusions of law, and order below set forth, finds merit in them. Upon the entire record in the case the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation licensed to do business in Michigan ; its principal office 'and place of business are located in Detroit, Michigan. It is engaged in the manufacture, sale, and distribution of automobile parts. In 1939 the respondent purchased raw materials, including glass, steel and lacquers, costing approxi- mately $4,704,000, and sold finished products aggregating approxi- mately $9,402,000 in value. The respondent obtained 75 to 85 per cent of the raw materials from outside the State of Michigan, and shipped approximately 25 per cent of the finished products to States other than Michigan. The remaining 75 per cent of its finished prod- ucts were sold to automobile manufacturers within the State of Mich- igan for use in the manufacture of automobiles to be sold and dis- MOTOR PRODUCTS CORPORATION 1239 tributed throughout the various States of the United States and in foreign countries. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local 203, is a labor organization admitting to membership the pro- duction employees of the respondent. In January 1939 a split occurred in the membership of Local 203, then affiliated with the C. I. 0., one faction remaining with the C. I. O. and the other affili- ating with the A. F. L. Both factions claimed to represent Local 203. Both are labor organizations.2 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of the discharges On March 25, 1937, the respondent entered into a written contract with International Union, United Automobile Workers, Local 203, herein called the Union, and the respondent has been in contractual relationship with the Union since then except for a short interrup- tion between contracts. After the factional dispute arose in which one faction of the Union became affiliated with the A. F. L. and the other remained affiliated with the C. I. O. the respondent took the position that it would not recognize either faction as the representa- tive of its employees until an official determination was made. On April 25, 1939, the respondent posted the following notice in the plant: TO THE PLANT EMPLOYEES OF MOTOR PRODUCTS CORPORATION Recent events have led us to conclude that the participants in the factional dispute now existing in Local 203 of the U. A. W. and in the International are not satisfied to settle their differences among themselves, but have sought through one means or another to embroil the Company in the dispute. We would like to take this opportunity to reaffirm our policy that all of our employees shall have the right to self-organiza- tion, to form, join or assist labor organizations to bargain col- lectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection. See Matter of Motor Products Corporation and Local 203, International Union, United Automobile Workers of America, afleated with the C. 1. 0., 13 N. L. R. B. 1320. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We are informed that one faction has sought a decision as to its rights from the Circuit Court for the County of Wayne and that the other has petitioned the National Labor Relations Board for a certification of the proper bargaining representatives of our plant employees. In view of these facts the Company cannot reasonably be expected to decide whom it must recognize as the chosen representatives of our plant employees nor judge the mer- its of the contending parties when that is the business of the Court or the National Labor Relations Board. Nevertheless, both factions have demanded that we do so, and some persons have even sought to force us to do so by threats and various accusations. The Company's position has been and always will be one of strict neutrality and non-interference in this dispute and all other entanglements of similar character. We earnestly request you to use judgment and restraint and await official determination of this matter by the courts and the National Labor Relations Board. We sincerely trust that we may expect full cooperation from our employees, and hope that this regrettable situation, will be permanently cleared up in the near future. As the result of a petition for investigation and certification of representatives pursuant to Section 9 (c) of the Act filed by the C. I. 0., and a hearing thereon, the Board, on July 31, 1939, directed that an election be held among the respondent's employees.3 In the election, which was held on August 22, 1939, the C. I. O. received 2,033 votes and the A. F. L. 188. On September 11, 1939, the Board certified that the C. I. O. had been designated and selected by a majority of the respondent's employees as their representative for purposes of collective bargaining.' We agree with the finding of the Trial Examiner that up to the time of the election the respondent adhered to the policy set out in its letter of April 29, 1939, quoted above. As we have stated, the respondent admits discharging the five employees named in the complaint, but denies that their union mem- bership or activities provided the motive. It contends that it dis- charged all five because, after the election of August 22, 1939, they engaged in "agitating and curtailing production" in their respective departments, and that their discharge was effectuated with the knowledge and consent of the C. I. O. S Matter of Motor Products Corporation and Local 203, International Union, United Automobile Workers of America, affiliated with the C. 1. 0., ibid. • Ibid, 15 N. L. R. B. 116. MOTOR PRODUCTS CORPORATION 1241 The events preceding the discharges were described without ma- terial contradiction by the respondent's superintendent, Frank W. Presley, substantially as follows : In 1939, prior to the election of August 22, the respondent's plant was operating at a loss. The respondent attributed this circum- stance to the failure of its employees to maintain production due to the factional dispute in the Union. It expected that the election would bring about an improvement but was disappointed in this expectation, for conditions did not improve. Determined to rectify the situation the respondent instructed its supervisory staff to inves- tigate and report the causes of the low production and also com- plained to the bargaining committee of the C. I. 0., with which it met weekly after the election, threatening to close the plant if pro- duction did not increase. The foremen investigated pursuant to their instructions and, as a result, the five individuals named in the com- plaint were reported to the management as responsible for the low production.5 The C. I. O. also ordered an investigation, at its own expense, assigning its president, Edgecomb, to conduct it. The man- agement informed the C. I. O. committee of the report of its foremen fixing responsibility for low production upon the persons named in the complaint. The C. I. O. committee investigated the report and. then notified the management of their concurrence in it .6 On October 5, 1939, the respondent sent the following letter, relat- ing to Green, to the C. I. 0.: You have been advised there has been an inexcusable failure of operators in a number of departments to meet the recognized standard rates of production, which is causing serious financial loss to this Company. We have made a thorough check and in- vestigation in some of these departments in order to determine who is responsible for this condition. In this connection we have found Joseph Green, #1-267, to be an incompetent, inefficient, and negligent workman, and fur- thermore, he is a large contributing factor for the poor efficiency in his department, and he has agitated a movement among other workmen to curtail output; thus causing a serious lowering of the morale throughout the plant. It is our intention to discharge this man on Monday, October 9th, 1939. Inasmuch as this man may be a member of your Union, we offer you this opportunity of expressing yourself with respect Individual foremen separately reported the results of their investigations. Thus Foreman Moritz reported Apple, Gillock, and Green ; General Foreman Walters reported McKeehan and Green ; and Foreman Fusner reported O'Mara. O According to Presley's uncontradicted testimony, the C. I. O. committee placed one additional employee in the same category , as guilty of curtailing production , and she was later also dismissed. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the proposed action of the Company. Please indicate your approval or disapproval, and the reasons , on the copy of this letter enclosed, and return to us promptly. Very truly yours, MOTOR PRODUCTS CORPORATION, (Sgd.) A. R. KELSO, Factory Manager. Similar letters were sent with respect to the other discharged employees. Each letter bore a notation by the C. I. 0., in the following form : We have no objection to and concur in the proposed discharge of Joseph Green, #1-287. (Sgd. ) EXECUTIVE COMMITTEE, LOCAL #203, UAU-CIO. CHARLES L. EDGECOMB . ( Sgd.) STEPHEN SERRA. WM. JACKSON . CHESTER DUNN. A. W. RYAN . JOSEPH SCHULLER. The respondent carried out the intention expressed in the letters and made the discharges referred to. After the discharges,of Octo- ber 9 and 12, here in issue, the respondent, for various reasons, dis- charged 15 or 20 additional employees out of the order of their seniority. The respondent consulted the C. I. O. orally in advance of each discharge .7 We find no evidence in the record which contradicts Presley's tes- timony that the respondent's determination -to discharge the persons named in the complaint originated with the reports of the respond- ent's foremen to the effect that those persons were responsible for low' production. B. The Trial Examiner's ' findings In his Intermediate Report the Trial Examiner found all five dis- charges to be discriminatory, stating that all were of a similar pat- tern. We hereinafter overrule his findings as to the character of the discharges. Before discussing the cases individually in detail we shall briefly indicate the basis of our disagreement with the Trial Examiner's dyer-all conclusion that the discharges follow a pattern of discrimination. Noting that the period following, as well as that preceding, the election of August 22, 1939, was characterized by bitter feeling be- tween the two factions of the Union at the respondent's plant, the Trial Examiner found that officers of the C. I. O. repeatedly threat- ened all five employees named in the complaint that they would be 'The Trial Examiner's finding that the approval of the C. I O. was not sought in connection with these discharges is contrary to the uncontradicted and credible testimony of Presley on this point. MOTOR PRODUCTS CORPORATION 1243 discharged if they did not pay up their dues. From this and a find- ing that the respondent failed to take disciplinary action in connec- tion with these threats the Trial Examiner inferred that the C. I. O. officers had good reason to believe that the respondent would actually discharge employees on request of the C.I. O. if dues delinquencies were not made good. He observed that the respondent never, after the election, informed its employees that its contract with the C. I. 0. was not a closed-shop contract. He found that the five discharged employees were in disfavor with the C. I. O. because of their failure to pay back dues or because of previous activity in the A. F. L. fac- tion, and that the C. I. O. succeeded in bringing pressure upon the respondent to effectuate their discharge as a lesson to others delin- quent in their dues. Finally, the Trial Examiner observed that no closed-shop contract exists between the respondent and the C. I. 0., which would excuse the respondent in yielding to such pressure. We agree that the proviso in Section 8 (3) of the Act 8 affords pro- ,ection from a charge of unfair labor practices through union discrimination only in the presence of an agreement. In other respects, however, we are unable to agree with the Trial Examiner's reasoning. The Trial Examiner attaches significance to the fact that at no time since the election of August 22, 1939, did the respondent notify its employees that its contract with the C. I. O. was not a closed-shop contract. There is no allegation and no evi- dence that the respondent unlawfully favored the C. I. O. faction prior to the election; accordingly no duty arose so to inform the employees. Even assuming that the respondent was aware of and tolerated efforts of the C. I. O. to collect dues after the election, its failure in the period between August 22 and October 12, to inform the employees of the conditions of the contract insufficiently supports an inference of discrimination. In the course of the factional dispute in the Union, dues payments fell off sharply. That the C. I. O. brought pressure upon employees, after the election, to pay up their dues is clear, but the record does not support the Trial Examiner's findings that delinquency in dues payments was the subject of successful pressure by the C. I. O. upon the respondent. The disparity in the dues status of the five dis- charged employees is too great. Thus McKeehan was paid up through November 1939, a full calendar month beyond the month in which he was discharged, having paid 3 months' dues to the C. I. O. B The proviso in Section 8 (3) reads as follows : "That nothing in this 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 employment membership therein, if such labor organization is the representative of the employees as provided in Section 9 (a), in the appropriate collective bargaining unit covered by such agreement when made." 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the election, and having been credited by the C. I. O. for 3 months' dues which he had paid to the A. F. L. before the election. Green is shown to have paid 2 months' dues to the C. I. O. in the period of less than 2 months elapsing between the date of the election and that of his discharge. The precise status of his dues payments does not appear. Apple paid 1 month's dues to the C. I. O. after the election and was 8 months in arrears at the time of his discharge. O'Mara paid 3 months' dues to the C. I. O. after the election, owing for 3 months when she was discharged. By arrangement with a C. I. O. steward, Gillock made 4 weekly payments of 1 month's duds after the election, reducing his arrearage at the time of his discharge to 4 or 5 months' dues. Moreover, the record requires the conclusion that many others, equally delinquent with those discharged, were retained at work. Thus the financial secretary of the C. I. O. testi- fied without contradiction that early in October 1939 between 400 and 500 employees at the respondent's plant were between 2 and 9 months behind in their C. I. O. dues. The Trial Examiner relied for support of his finding - of a col- lusive pattern in the discharges upon an incident involving an em- ployee named Booker. Two months after the discharges in issue the C. I. 0., considering Booker to be far in arrears in his dues, undertook to induce him to pay up. Allegedly in order to prevent a riot in Booker's department, Edgecomb removed Booker's time card from its place in the rack. As a result Booker was unable to begin work the next day. He went to see Presley and the employ- ment manager and stated to them his belief that non-payment of dues was the cause of the removal of his time card. Presley told Booker that he had not been discharged and that his time card would be replaced. He further stated that he was "neutral" and could not tell Booker what to do.9 On the day following this interview Booker, having first paid 11 months' dues and a $5 fine to Edgecomb, re- turned to work. The respondent reprimanded but did not otherwise discipline Edgecomb for his unauthorized action in removing Booker's card. From the respondent's failure to take punitive measures against Edgecomb, the Trial Examiner concluded that it condoned his action and "acted clearly in collusion" with the C. I. O. in the efforts of the latter to force payment of delinquent dues. With this con- clusion we do not agree. We are of the opinion, moreover, that the respondent's failure to discharge Booker, who was further in arrears O According to Booker 's own testimony concerning this interview , he suggested that he be laid off for a while in order "to, get this thing straightened out," but Presley replied, in the words of Booker , "We haven't got nothing to lay you off for." MOTOR PRODUCTS CORPORATION 1245 than any of the persons named in the complaint and whose delin- quency was brought forcibly to the respondent's attention, militates against the likelihood that delinquency in dues payments to the C. I. O. contributed to the respondent's determination to discharge any of the persons named in the complaint to A further circumstance which impels us to reject the theory of a collusive pattern is that, as we shall show, three of the discharged employees had'engaged in no conspicuous A. F. L., anti-C. I. 0., or other union activity in the period under consideration 11 The cases must be considered upon their individual merits. C. The discharges viewed separately Claude B. Apple and Steve A. Gillock started to work for the re- spondent in 1928 and in 1934, respectively. At the time of their dis- charge on October 9, 1939, they were employed in Department 1, under the supervision of Foreman Edward Moritz and Assistant Foreman Leo Rintz. Apple did butt welding and Gillock worked on an auto- matic precision welder. Apple and Gillock were both discharged on October 9, 1939, by Foreman Moritz , for "agitating and curtailing production." No other explanation was given to either of them upon further inquiry. When Elmer E. Schimel, C. I. O. steward for the department, asked Moritz for an explanation of the discharges, Moritz told him also that as far as he knew, the men were discharged for agitation and curtailed production. Apple and Gillock presented their story to Edgecomb, president of the C. I. O. local, who after ascertaining that both men were delinquent in their dues, informed them that he could do nothing for them. However, on the day following the discharges the executive board of the local did consider the matter and decided against taking any further action. Apple and Gillock had been members of the Union. Apple stopped paying dues when the split occurred. Three days after the election, he paid $1.00 in dues to the C. I. 0., which paid him up to January 1939, leaving him about 8 months in arrears . Prior to this payment he had been warned by Ernie Medlin, C. I. O. deputy steward, that if he did not pay up his dues he could not remain in the Union and then anything might happen to him. Gillock testified that after the split his sympathies were with the A. F. L. but that subsequent to the 10 Booker , it is true , paid up his dues before returning to work. On the other hand Gillock, an employee named in the complaint , failed to secure reinstatement by offering to pay up his dues. "The evidence in the record to the effect that Edgecomb and other C. I 0 officials deliberately sought to convey the impression that the respondent would support their efforts to collect dues is insufficient , in view of the other evidence concerning the respond- ent's attitude toward the fractional dispute, to sustain a finding of collusion 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election he paid dues to the C. I. O. Gillock made an agreement with Elmer E. Schimel, chief C. I. O. steward of the department, whereunder he paid back dues at the rate of $1.00 per week. He paid a fourth such monthly installment on October 5, 1939, and at that time he owed back dues for four or five more months. Before he started to pay dues to the C. I. 0., Gillock was warned by Schimel and by Howard Broderdorf, assistant steward in the C. I. 0., that unless he paid his dues he would lose his job. Foreman Moritz described Apple as one of his best welders, and there is no allegation that the quality of Gillock's work was not satis- factory. However, both Moritz and Rintz accused Apple and Gillock of curtailing production, basing their conclusion on the fact that the two employees would leave their work to talk to other employees in the department. Moritz testified that he found Apple talking to other employees away from his machine and that he warned him on such occasions, the last such warning occurring about 2-3 weeks prior to Apple's discharge. At about the time of the last warning Moritz spoke to Presley about Apple and told him that he thought that Apple was among those who were causing the trouble in the plant. Assist- ant Foreman Rintz testified that he spoke to Apple 6 or 7 times for leaving his machine and that he saw Gillock wandering about the plant about ten times and reprimanded him for it. Both Apple and Gillock denied that there were any complaints about their work or that they were accused of curtailing production at any time prior to their discharge. Employees William Graves, Joseph Ludwig, John Krivick, Elmer E. Schimel, C. I. O. steward, and Ernie Medlin, deputy steward, all corroborated the testimony of Apple and Gillock. Although, in most instances if there was complaint about any em- ployee the foreman discussed it with the C. I. O. steward for the department, Schimel and Medlin both testified that they received no complaints from any supervisory employee about agitation or curtail- ment of production. The record does not satisfactorily delineate the discharge of Apple and Gillock. Representatives of management charge interference with production; the two men, supported by a number of their co- workers, deny the charges. We need not, however, resolve this con- flict, for the cases present no evidence of conspicuous factional activity on the part of either man to provide an improper motive for his discharge. The testimony of Apple and Gillock themselves goes far to negate the charge of discrimination for union reasons. Thus Apple testified that before the election he wore a C. I. O. button in the plant, that he paid one month's dues to the C. I. - O. after the election, that he has never paid dues to the A. F. L., and that he was not a member of the A. F. L. after the election and MOTOR PRODUCTS CORPORATION 1247 attended no A. F. L. meetings. He further testified that during the period of his employment he participated in no union conversations or arguments and made no speeches on behalf of either faction, and that no official of the respondent ever questioned him concerning his union affiliations. Gillock, similarly, denied having taken any active part in the factional fight, having engaged in any union activities on the respond- ent's premises, having been part of any minority group at the plant, or having heard of or attended any meetings of any such minority group. Under the circumstances we are of the opinion and find that the record does not support a finding that the respondent dis- criminatorily discharged Apple or Gillock. The complaint as to them must be dismissed. Joseph Green started to work for the respondent in the fall of 1933, quit his employment a few months later, was reemployed in February 1934, and worked continuously thereafter until his discharge on October 9, 1939. He was a metal polisher and buffer and worked in department 1 under Foreman Moritz. In 1935 Green was made assistant foreman and continued in that capacity until 1937. Green joined the Union in 1937. He was later elected recording secretary and served in that capacity until 1939. After the split Green was prominent in the A. F. L. faction and actively engaged in campaigning for that group prior to the Board election. Green did not join the C. I. O. after the election'12 but continued to wear his A. F. L. button. On the morning of August 24, 1939, two days after the election, Edgecomb and Al Ryan, a C. I. O. official, told Green to remove his A. F. L. button, but Green refused to do so.13 In the afternoon of the same day Foreman Moritz told Green that he was wanted in Fac- tory Manager Kelso's office. In addition to Kelso and Green, Super- intendent Presley, Foreman Moritz, and the C. I. O. executive com- mittee were present at the ensuing meeting. The C. I. O. committee accused Green of agitating and causing trouble by not removing his A. F. L. button. The members of the committee again asked Green to remove his button. When Green remained adamant in his refusal to do so, Kelso told him that he was not going to have any disturbance in the plant and advised Green against continuing to wear the button. 13 Green's testimony that he never joined the C. I 0 faction is consistent with testimony of Raymond, C I. 0 financial secretary, that Green was not a member of the C. I 0 Nevertheless , it is established , as we have found , that Green did pay $2 in dues to the Local after the election, in exchange for which he was given a C I. O. receipt. Green stated at the hearing that his payments were made to McKeehan under the impression that the latter still represented the A. F L 13 Presumably the request was made in order to avoid commotion in the plant. F,dge- comb, Ryan, and other union stewards, in the administration of the agreement, were presumed to assist in avoiding trouble such as naturally would ensue. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Green followed Kelso's suggestion and stopped wearing the A. F. L. insignia. On the following day, when he appeared without the but- ton, and for several days thereafter, Green was ridiculed and laughed at by the other employees in the plant. Green was discharged on October 9, 1939, by Foreman .Moritz. When he asked Moritz why he was being discharged, Moritz pleaded ignorance. When Green later repeated his inquiry, Moritz told him to see Employment Manager Gilgus. Gilgus informed Green that he had been discharged for agitating and curtailing production. James B. Walters, general foreman over several departments, in- cluding the department where Green worked, testified that he never had any complaints about the quality of Green's work, but that he noticed several times during the period between the Board election and Green's discharge,, that Green's passing through the department caused an uproar. Walters stated that although he did not know what provoked the uproar, he informed Superintendent Presley about it. Moritz, Green's foreman, testified that he believed Green guilty of holding down production along with Apple and Gillock and that he so stated to Presley, but he did not specify in what way Green had retarded production. Green testified that after the election he knew that the.controversy in Local 203 had been settled and that he ceased taking any part whatsoever in union activities, talked to no one in the plant, and became a sort of "lone wolf." The record indicates, however, that Green did not graciously accept the results of the election. In view of the decisive character of the election and Green's prominence in the defeated faction his action two days later in flaunting an A. F. L. button and making rejoinders and arguing was not calculated to alleviate the tension which had characterized the factional dispiite. We have stated our finding that the respondent, up to the time of the election, adhered to a published policy of impartiality between the factions.14 The entire record convinces us that after the election the respondent did not alter or depart from this policy. We are of the opinion and find that the respondent was motivated by a genuine and lawful desire to maintain discipline and to operate its plant without undue disturbance and that it discharged Green because it believed that his presence, quite aside from his union preferences, was an obstacle to the attainment of those ends. In this belief the respondent was justified by Green's provocative behavior immediately following the election, behavior of a sort which would necessarily stir up discussion and dissension among the em- '+ Section III A, supra. MOTOR PRODUCTS CORPORATION 1249 ployees.15 We find that the respondent's discharge of Green did not constitute discrimination within the meaning of Section 8 (3) of the Act, and shall dismiss the complaint to that effect. Lynn McKeehan started to work for the respondent on November 125 19331 and except for occasional lay offs, was employed continuously until his discharge on October 12, 1939. He was a disc grinder who worked on repairs, a job requiring considerable skill and experience. Until about 2 months prior to his discharge, McKeehan was the only disc grinder in the department. At that time five more were hired. It is undisputed that McKeehan's efficiency was at least on a par with that of other employees doing similar work. Foreman William Drost and, General Foreman Walters both testified that they had no com- plaint about the way McKeehan performed his own work, but that they found his interference with work of other employees objectionable. McKeehan joined the Union in 1937 and was elected steward of his department shortly thereafter. After the split he was active on behalf of the A. F. L. faction. The C. I. O. suspended McKeehan on May 18, 1939.16 Following the election, McKeehan was replaced as steward. On September 11, 1939, the C. I. O. lifted McKeehan's suspension and put him on probation. On October 3, 1939, Edge- comb reproached McKeehan for not paying dues and told him that if he wanted to work in the plant he would have to pay his dues. McKeehan repeated this remark to his foreman, Drost, who told McKeehan that he had nothing to worry about. McKeehan was discharged on October 12, 1939, by Drost, acting on instructions from Presley. According to McKeehan, Drost said to him : "Sell, I got a surprise for you. It isn't any more surprise to you than it is to me. I got orders from the front office to let you go at the end of this shift, they told me if you ask me what was the trouble to tell you, just to tell you that it was interfering with and curtailing production." This statement was not denied directly by Drost. - General Foreman Walters and Foreman Drost both testified that they frequently saw McKeehan leave his bench to talk to other em- ployees. According to Drost, not only was working time lost by the minutes McKeehan spent in talking but the immediate effect of Mc- 15 After the election the company dealt with the C. I. O. in handling grievances and maintaining discipline . The C. I. O. was in this way recognized as the holder of the agreement. One of the clauses of the agreement provided that the members of the Union were "not to attempt in any way to solicit . . . membership in the Union or otherwise carry on Union activities in the plant or on the premises of the Company during working hours. . . Any employee or group of employees breaching this provision were to be "subject to discipline , including discharge " 19 As we have indicated ( Section II, supra ), both factions of the Union claimed to represent it. 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Keehan's conversation on the other employees manifested itself in a slackening of production., Drost and Walters testified that they reprimanded McKeehan for leaving his work and talking to others and that they reported McKeehan's misconduct to Superintendent Presley. McKeehan, on the other hand, denied that he had ever been reprimanded and testified further that Foreman Drost had com- plimented him upon his work just a few days prior to his discharge. Ella Erickson, who is employed in the same department with Mc- Keehan, testified that she never saw McKeehan agitating or curtailing production. She further stated that it is common practice for the employees in the department to talk to each other during working hours and that the respondent had no rule against it. We find it unnecessary to determine the extent to -which McKeehan actually misconducted himself in the plant during working hours. The testimony of the respondent's supervisory employees that he was discharged because his conversations resulted in a slackening of production must prevail in the absence of any persuasive showing that union considerations entered into the determination to dismiss him.17 As in Green's case, we find the record inadequate to support a finding that the respondent's preexisting neutrality between the factions was abandoned to McKeehan's detriment. The complaint as to McKeehan will be dismissed. Rosemary O'Hara started to work for the respondent in the spring of 1936. About a year later she was injured in the plant and in the following year and a half she worked only about 3 months. In the year preceding her discharge on October 12, 1939, O'Mara was em- ployed by the respondent continuously, except for a month's lay-off in July 1939. O'Mara and another girl worked on a conveyor, placing frames on hooks to be carried into department 25, an assembly depart- ment. O'Mara's position was on the left side of the conveyor. O'Mara was discharged on October 12, 1939, by Murray De Guvera, assistant foreman. According to O'Mara, when she asked De Guvera whether she was discharged because of her work, he replied : "As far as I know, no. I have no complaints about your work." De Guv'era testified that he dismissed O'Mara upon orders from Foreman John Fusner and denied the above statement attributed to him by O'Mara. While De, Guvera's denial is more consistent with the testimony of other witnesses, below referred to, than is O'Mara's version of his reply,"the Trial Examiner, who had the opportunity to observe the 27 Although, as appears in Mr . Smith 's dissent , Drost gave testimony which tends to indicate that McKeehan 's factional interests may have induced in him behavior inimical to plant discipline, we are unable to say that the union aspect of McKeehan's behavior contributed to the respondent 's decision to discharge him. - MOTOR PRODUCTS CORPORATION 1251 demeanor of the witnesses, found De Guvera's testimony evasive and unconvincing. In any event, resolution of this conflict is unnecessary to a decision. De Guvera, Foreman Walters, and Production Controller Rogers all testified regarding O'Mara's work."' None accused her of agi- tating. Rogers testified that in the period between August 22 and O'Mara's discharge on October 12 he received many complaints from Walters, the foreman of department 25 to which the conveyor serviced by O'Mara supplied frames, to the effect that too many hooks went by without frames on them, on the left side, and that he relayed these complaints to both De Guvera and the latter's foreman, Fusner. He further testified that he had himself ob- served O'Mara's absence from her post on 6 or 7 occasions, and that he had spoken to both girls about the complaints. Walters testi- fied that he had complained several times to De Guvera concerning empty hooks on the left side of the conveyor. Thus De Guvera, who testified that he had received such complaints from Rogers and Walters, was to that extent corroborated. Emily Szamara, who worked opposite O'Mara, on the right side of the conveyor, testified that Rogers complained to both of them "quite a few times" about missing too 'many hooks. She added, however, that some of these warnings came at times when the girls were unable to obtain the necessary stock. O'Mara's testimony at the hearing was given before that of De Guvera, Walters, Rogers, and Szamara. She stated that she had never fallen behind in her work and had never been accused of agitating or curtailing production, and that she did not recall having been told by any one in authority that she was causing delay in production. O'Mara was not recalled to the stand to answer the testimony above related. In addition to characterizing the testimony of De Guvera as evasive and unconvincing, and disregarding, for valid reasons, Edge- comb's testimony concerning O'Mara, the Trial Examiner failed to refer to the testimony of Walters. Concerning Rogers' testimony to the effect that he found "empty hooks" on the left side of the con- veyor, ordinarily attended by O'Mara, he found a reasonable ex- planation in testimony by Szamara that sometimes the wrong stock was supplied to the girls, causing delay. The Trial Examiner ac- corded no weight to the testimony of Walters,-De Guvera, Rogers, and Szamara that complaints had in fact arisen concerning O'Mara's work and inferentially rejected the implication of that testimony that O'Mara was at fault. 'B The Trial Examiner disregarded the testimony of Edgecomb regarding O'Mara's work because Edgecomb had threatened O'Mara with discharge for delinquency in dues. We agree that it should be disregarded. 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner, in reaching his conclusion that O'Mara's discharge was discriminatory, pointed to the fact that C. I. O. offi- cials had more than once threatened O'Mara with discharge if her dues were not paid up.ls Actually O'Mara was only 3 months in arrears at the time of her discharge.20 Moreover, the Trial Examiner found that O'Mara "was never ac- tive in union affairs." O'Mara's own testimony amply supports that' finding. She testified that she never expressed hostility toward either faction of the Union, and that after the election she never wore a union button, attended no A. F. of L. meetings, attended one department meeting of the C. I. 0., and "just stayed neutral and paid [her] dues." O'Mara further testified that she did not report to any supervisory employee of the respondent the threats made against her by C. I. O. officials concerning non-payment of dues, and that no supervisory employee of the respondent told her that she had to belong to either faction or pay dues to it in order to keep her job. We are unable to agree with the conclusion of the Trial Examiner that O'Mara was discharged for union reasons. She appears to have remained passive and inconspicuous in the factional fight and the weight of the evidence is that her work in the period preceding her discharge was the subject of considerable complaint. . Nothing in the record supports the inference, necessary to a finding of discrimina- tion, that those complaints were made in bad faith or that they pro- vided a pretext for discharge for union reasons. The complaint as to O'Mara will 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. International Union, United Automobile Workers of America, Local 203, affiliated with the American Federation of Labor, and International Union, United Autombile Workers of America, Local 203, affiliated with the Congress of Industrial Organizations, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The operations of the respondent, Motor Products Corpora- tion, constitute a continuous flow of trade, traffic, and commerce among the several States and Territories of the United States, within the meaning of Section 2 (6) of the Act. 30 For the reasons stated above (fn. 11), we disregard this circumstance as evidence of discriminatory motive on the respondent's part. 20 There is testimony on the part of a C. I. O. steward to the effect that a C. I. 0 member "kept within the limit of the Constitution" if he did not fall more than 3 months in arrears. MOTOR PRODUCTS CORPORATION 1253 3. The respondent has not discriminated in regard to the hire or tenure of employment or the terms or conditions of employment of Claude B. Apple, Steve A. Gillock, Joseph Green, Lynn McKeehan, or Rosemary O'Mara, within the meaning of Section 8 (3) of the Act. 4. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against the respondent, Motor Products Corporation, be, and it hereby is, dismissed. MR. EDWIN S. SMrria, concurring in part and dissenting in part : I agree that Apple, Gillock, and O'Mara were not discharged for union reasons and that the complaint as to them should be dismissed. I cannot concur, however; in the dismissal of the complaint as to Green and McKeehan. In my opinion both men were discharged because of their activities in behalf of the A. F. L. minority faction of the Union, and their discharges constitute unfair labor practices within the mean- ing of Section 8 (3) of the Act. The conclusion of the majority of the Board in these two cases; that the respondent maintained impartiality between the two factions, is, in my opinion, contrary to the evidence; for the activities which at- tracted the adverse attention of Green's and McKeehan's foremen and thus brought about their discharge were union activities expressly protected by the Act. Both men had, prior to the election, been prominent in the A. F. L. faction. The evidence indicates that they continued to align them- selves with that faction after the election. The specific breaches of plant discipline of which they are accused consist of talking and walk- ing around, infractions of which many other employees, notably Edgecomb and other C. I. O. officials, were at least equally guilty. The work of neither man is criticised. The evidence upon which I conclude that it was A. F. L. activity for which these men were discharged may be briefly stated. In Green's case it is the incident arising from his display of A. F. L. in- signia two days after the C. I. O. victory in the election, and the re- spondent's reaction thereto, described in the majority opinion, coupled with the testimony of General Foreman Walters that Green's, mere presence caused an "uproar." 451269-42-vol. 34-80 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In McKeehan's case it is principally the testimony of Drost, his fore- man, whose report caused his discharge. This testimony is as follows : "... there was many arguments; different operators in the de- partment that belonged to one faction and those that belonged to the other; there might have been four or five different operators. As he [McKeehan] went by they would say something to him and he would resent it and he would come back and there would be an argument about it.21 - It may be that Green's and McKeehan's differences with the majority of the employees adversely affected production and that the respond- ent's principal concern was with plant discipline. It remains that the essence of the behavior which has been penalized is union advocacy of a sort in which rival unionists engaged with impunity. The dis- charges, under these circumstances, were calculated to, and did, dis- courage membership in the A. F. L. Nor is the situation altered by the fact that the C. I. 0. had just been chosen as sole bargaining agent of the employees. Section 8 (3) of the Act prohibits discrimination for union interest. In the absence of a valid closed-shop contract it does not except discrimination against adherents of minority union groups. In the circumstances of this case the respondent's lawful alternatives were to enforce non-discriminatory rules against all infractions of the kind with which Green and McKeehan are charged, or to allow them a degree of freedom for union activities equal to that enjoyed by C. I. 0. members. I would find that in discharging Green and McKeehan the respond- ent discouraged membership in the A. F. L. by discrimination in regard to hire and tenure of employment, and I. would order the respondent to reinstate them with'back pay. 21 Drost also testified that he knew that there was "friction " toward McKeehan. In the course of his duties, C. I. 6. Shop Steward Norman Kerr once had occasion to coin- plain to Drost because McKeehan had taunted employees about the C. I. O.