The E. T. Fraim Lock Co.

National Labor Relations Board - Board Decisions

Jun 29, 1940

24 N.L.R.B. 1190 (N.L.R.B. 1940)

In the Matter of E. T. FRAIM, LOCK COMPANY, SAMUEL R. FRAIM,
MARY Al. FRAIM, SAMIIEL E. FRAIM, AND EDWARD T. FRAIM, 2ND,
CO-PARTNERS, TRADING AS TIIE E. T. FRAIM LOCK COMPANY and
AMALGAMATED ASSOCIATION OF IRON, TIN AND STEEL WORKERS OF
NORTH AMERICA, LODGE 17321
In the Matter. of E. T. FRAIM Loci-, Co. and LOCK WORKERS UNION
#20836
Cases Nos. C-2 and R-1367
Lock Making Industry-Interference; Restraint, and Coercion-Alleged Sup-
port to and Encouragement of Membership in Labor Organization Affiliated with
National Union: allegations dismissed ; members of company-formed inside
union applied for and obtained charter from national union, and in connection
therewith signed cards authorizing collection of initial fee and registration of
names ; membership and officers of inside union became members and officers
of chartered union ; held: mere identity- of membership and officers did not
establish per se, illegality under Act with respect to chartered union ; "inci-
dental benefit" to chartered union from discriminatory discharges of two mem-
bers of rival union, insufficient, standing alone, to support allegations-Dis-
crimination: allegations sustained; reduction in working hours of employee paid
on an hourly basis, and discharges of said and another employee, because of em-
ployer animosity engendered by their reinstatement under prior Board order,
and because of their union adherence and activity-Procedure-Vacfttion of
Agreed Order and Hearing upon Charges Covered by Order, and of Other Charges:
order of Board vacating agreed order, improvidently issued; agreed order'rem-
edying unfair labor practices should not ordinarily be vacated and allegations
tried, either on an original or an amended complaint ; agreed order and origi-
nal complaint reinstated nunc pro tune; proper, practice and procedure where
charges are filed against employer subject to previous Board order, is to proceed
in new complaint case and not to vacate previous order and continue previous
complaint proceedings-Evidence: evidence in previously adjudicated complaint
proceedings, admissible as background in subsequent complaint proceeding against
same employer; proof of arrest of employee allegedly discriminatorily discharged,
admissible under issues, even though no showing of conviction-Reinstatement Or-
dered-Back Pay: reinstatement of two employees discriminatorily discharged;
back pay for loss since discharge and for loss because of discriminatory reduction
in working hours-Order-Prohibition on Membership Solicitation by Super-
visory Employee Holding Office as Treasurer of Lawful Union: minor super-
visory employee may hold office as treasurer of lawful union, but his solicitation
of union membership or other conduct influencing employees in adherence to
union or choice of labor organization or collective bargaining representative
will constitute violation of order-Investigation of Representatives: contro-
This caption conforms with the caption of the case when our order of September 3,
1937, herein issued. See footnote 2, infra. - '
24 N. L. R. B., No. 130.
1190
E. T. FRAIM LOCK COMPANY ET AL. .1191
versy concerning representation of employees : refusal by employer to recognize
union because of claims of rival organization and because of pendency of instant
proceedings -Unit Apjropriate for Collective Bargaining : production and main-
tenance employees , excluding clerical employees , foremen, and other employees
having supervisory duties-Election: involving two lawful affiliates of national
unions, ordered as early as possible but not later than thirty ( 30) days.
Mr. Sannuel G. Zack and Mr. Geoffrey J. Cuniff, for the Board.
Windolph and Mueller, by Mr. Paul A. Mueller, of Lancaster, Pa.,
for the respondents.
Mr. M. H. Goldstein, of Philadelphia, Pa., and Mr. Roy Constine,
of Lancaster, Pa., for the S. W. O. C.
Mr. George J. Kamm, Sr., of Lancaster, Pa., for the Federal Union
and the A. F. of L.
Mr. Ralph Winkler, of counsel to the Board.
SECOND SUPPLEMENT TO DECISION
SUPPLEMENTAL 'ORDER
AND
DIRECTION OF ELECTION..
June 29, 1940
STATEMENT OF THE CASE
On September 3 and- on October 5, 1937, respectively, the National
Labor Relations Board, herein called the Board, pursuant to a settle-
ment stipulation and agreement of the respondents, the Board,, and
other parties, entered into on August 26, 1937, issued a Decision and
Order and Supplement to Decision and Order in the above-entitled
complaint case.2 The orders provided, in substance, that The E. T.
Fraim Lock Company, Samuel R. Fraim, Mary M. Fraim, Samuel E.
Fraim, and Edward T. Fraim, 2nd,3 co-partners trading as The E. T.
Fraim Lock Colnpany,4 their officers, agents, successors, and- assigns,
should cease and desist from discouraging membership in Amalga-
mated Association of Iron, Steel and Tin Workers of North America,
2 Matter of E. T. Fraim Lock Company, Samuel R. Fraim, Mary If. Fraim, Samuel E.
Fraim, and Edward T. Fraim, 2nd, Co-Partners Trading as The E. T. Fraim Lock Company
and Amalgamated Association of Iron, Tin and Steel-Workers of North America, Lodge
• 1732, 3 N. L. R.' B. 562, 568, 571, 572. We note the inaccurate designation of the Union
in the title of the case.
a Samuel R. Fraim, Mary M. Fraim, Samuel E. Fraim and Edward T. Fraim, 2nd, in
their joint capacities as individuals and as co-partners of The E. T. Fraim Lock Company,
are herein called the respondents, unless otherwise indicated or apparent from the context.
'The Trial Examiner granted a motion made at the hearing by counsel for the Board
'"that at, every place in these proceedings where the name The E. T. Fraim Lock Company
appears or occurs it shall be noted that this means Samuel R. Fraim, Mary M. Fraim,
Samuel E. Fraim, and Edward T. Fraim, 2nd, co-partners trading as The E. T. Fraim Lock
Company." -
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Amalgamated,5 and in Amalgamated Association of
Iron, Steel and Tin Workers of North America, Lodge 1732, herein
called Lodge 1732; 6 from encouraging membership in and supporting,
and from interfering with and dominating the administration of,
Loyal Fraim Workers Employees' Organization, herein called the
Loyal Fraim Workers,7 and Independent Union of Lock Workers,
herein called the Independent; and, to effectuate the policies of the
National Labor Relations Act, 49 Stat. 449, herein called the Act,
should reinstate to their former positions certain employees and make
restitution to other named employees; recognize and upon request bar-
gain collectively with Lodge 1732 as the exclusive representative of the
production and maintenance employees of the co-partners, excluding
foremen, subforemen, clerical and office workers and any employees
with supervisory duties; notify the Loyal Fraim Workers and the
Independent that recognition is withdrawn from these organizations
as representatives for the purposes of collective bargaining; and post
notices stating, among other things, that.employees of the co-partners
have the right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, without inter-
ference, discrimination, restraint, or coercion by the employers.
On March 21, 1938, Federal Labor Union No. 20835,8 herein called
the Federal Union, by American Federation of Labor, filed with the
Regional Director for the Fourth Region (Philadelphia, Pennsyl-
vania) a petition in the above-entitled representation case alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees employed at the Lancaster plant of the re-
spondents,' and requesting an investigation. and certification of repre-
sentatives pursuant to Section 9 (c) of the Act.
On July 13, 1938, an amended charge and on September 12, 1938,
a second amended charge were filed in the above-entitled complaint
case by Steel Workers Organizing Committee, herein called the
S. W..O. C., acting in that respect for Lodge 1732, charging that the
respondents had engaged in and were engaging in unfair labor prac-
tices, within the meaning of Section 8 (1), (3), and (5) of the Act.
5 Amalgamated Association of Iron, Steel and Tin Workers of North America and Lodges
1732 and 1035 thereof are at.times referred to collectively as the Amalgamated.
8 The record shows that "Lodge 1732 . . . has since been merged into Lodge 1035 [of
the 5mslgamated Association of Iron, Steel and Tin Workers of North America]." We
find that Lodge 1035 is the successor to Lodge 1732. See Section II , infra.
See Section III B, infra.
8 This is the correct designation of this labor organization. It is also referred to in the
record as Federal Union #20836, Lock Workers Union Number 20836, Lock Workers Union
#20836, Lockmakers, Local No. 20836, and by other similar names.
9 See footnote 3, supra.
E. T. FRAIIM LOCK COMPANY ET AL. 1193
On February 8, 1939; the Board duly served upon the respondents
and upon the S. W. O. C. through their respective counsel written
notice- that unless sufficient cause to the. contrary appeared, the Board
would on February 18, 1939, or thereafter, vacate and set aside its
above-mentioned Decision and Order of September 3, 1937, and its
Supplement to Decision and Order of October 5, 1937.10 On Feb-
ruary 13, 1939, the respondents filed with the board objections to the
issuance of an order as proposed.
On March 3, 1939, the Board issued orders vacating and setting
aside the Decision and Order of September 3, 1937, and the Supple-
ment to Decision and Order of October 5, 1937, in the above-entitled
complaint case; reopening the record in that case for the taking of
further evidence, remanding the. case to the Regional Director, and
authorizing him to issue an amended complaint therein ; directing
the Regional Director to conduct an investigation upon the petition
in the above-entitled representation case; consolidating both above-
entitled cases for purposes of hearing, and for all other purposes ; and
authorizing the Regional Director to provide for and issue notice of
hearing in the consolidated cases. Copies of these orders were duly
served upon the respondents, upon the Federal Union, and upon the
S. W. O. C.
On March 29, 1939, a third amended charge was filed by the
S. W. O. C. on behalf of Lodge 1732, charging that the respondents
had engaged in, and were engaging in unfair labor practices, within
the meaning of Section 8 (1) and (3) of the Act. On April 5, 1939,
the Board issued an amended order, among other things authorizing
the. Regional Director to issue an amended complaint on the third
amended charge as well as on the amended charges of July 13 and
September 12, 1938. Copies. of. the amended order were duly served
upon the respondents, upon the Federal Union, and upon the S. W.
O. C. Upon the amended charges of July 13, 1938, September 12,
1938, and March 29, 1939, the Board, by the Regional Director, issued
its amended complaint, dated April 8, 1939, against the respondents,
alleging that the respondents individually and as co-partners had
engaged in and were 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. Copies of the amended complaint, accom-
panied by notices of a hearing in the consolidated cases,. were duly
served upon the respondents, upon the Federal Union, and upon
the S. W. O. C.
"In response to inquiry by the respondents , the Board , on February 14, 1930, notified
the respondents that the reason for the proposed order of vacation was the filing of the
mentioned amended and second amended charges and the proposal of the Board to issue
an amended complaint thereon in the above-entitled complaint case.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the amended complaint
alleged in substance that the respondents 11 (1) by various specified.
acts caused to be put into force and effect at their plant in Lancaster
a form of labor organization, herein called the Loyal Fraim Workers,'
and dominated and interfered with-its administration and operation;
in various other ways dominated and interfered with the formation
and administration of the Loyal Fraim Workers; and contributed
financial and other support to that organization; (2) in or about the'
months of September 1937 to and including March 1938, through
their. foremen, assistant foremen, and supervisory employees, and.
more particularly through certain named supervisory employees,12
actively supported the labor organization, herein called the Federal
Union, with which the Loyal Fraim Workers in or about September
1937 was merged, by urging their employees to join the Federal Union,,
and threatening them with dismissal or curtailment of work if they
did not do so, by permitting solicitation of membership and the col
lection of dues for the Federal Union on the respondents' time and,
premises,.by permitting the posting' on the respondents' bulletin
board and distribution on its premises of notices of meetings of the
Federal Union, and by other ways encouraging and sponsoring mem-
bership in the Federal Union; (3) during the above-mentioned
months, and particularly through the above-mentioned supervisory
employees, by words and deeds, threats,. and other species of intimi-
dation; restrained and coerced their employees in the exercise of the'
right of self-organization, and by coercion and threats of loss of em-
ployment and other threatened losses, discouraged and interfered with
many of their.employees with respect to' membership in the labor
organization, herein called the Amalgamated, with the intention of.
interfering with, restraining, and coercing their employees in the
exercise of the right of self-organization; (4) terminated the services
of the following employees, Taylor Applebach, -Raymond Roark;
and Robert Gochanaur on or about June 27, 1938, January 28, 1938;
and October 20, 1937, respectively, and refused to reinstate them be-
cause they joined and assisted the Amalgamated and engaged in
concerted activities with other employees of the. Lancaster plant
for the purpose of collective bargaining and other, mutual aid and
protection, thereby discriminating in regard to the hire and tenure
of employment of these employees and discouraging membership in
the Amalgamated; and (5) by the aforesaid acts, interfered with,
restrained, and coerced the respondents' employees in the exercise of.-
the rights guaranteed in Section 7 of the Act.
u See footnote 3, supra.
These persons are : William Bash, Roy Campbell, Mable Carpenter, Dale Furlough,
Earl Glowner , Ralph Greenawalt , John Eidemiller , Fritz Kreck , John May, Frank Streaker,
and Forrest Weidenmoyer.
E. T. FRAIM LOCK' COMPANY ET AL. 1195
On April 18, 1939, the respondents as co-partners 18 filed their
answer to the amended complaint, denying that they had engaged
in the unfair labor practices alleged therein and averring that the
Loyal Fraim Workers was dissolved immediately upon organization
and never functioned "because of the fear that its organization might
be held to constitute a violation" of the Act; that Taylor Applebach
was discharged "because he left his place of employment, against
company orders and without permission, and was found in another
department which was then working, without the consent of his fore-
man on personal, business"; that Raymond Roark was discharged
because he failed to report to work without excuse and because he
was arrested for assault and battery and had, a "prior record" which'-
made his further employment undesirable; and that Robert Goch-
anaur was-not discharged but refused employment and the respond
ents have' no present need for him. In their answer, the respondents
in effect again took exception to the action-of the Board in vacating
the Decision and' Order and the Supplement to Decision and Order
in the above-entitled complaint case and further excepted to the
issuance herein of the amended complaint.
Pursuant to notice; a hearing was held at Lancaster, Pennsylvania, -
on April 20, 21, and 29, 1939, before Henry J. Kent, the Trial Ex-
aminer duly designated by -the Board. The, Board, the respondents
as .co-partners, the S. W. O. C. acting for the Amalgamated, and the
Federal Union appeared and were represented by their counsel or
representatives. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. The Trial Examiner granted motions by
the Board's counsel to dismiss the allegations of the complaint in so
far as they related, to Gochanaur,14, and 1o, conform -the pleadings to
the proof in respect to formal matters. ' He reserved ruling on a
motion of the respondents, more fully considered below, to dismiss
the allegations of the amended complaint and to strike all testimony
13 The answer to the amended complaint was filed by the respondents as co-partners
trading under the partnership name -of The E. T. Fraim Lock Company. In their answer
they objected to the recaptioning of the above -entitled complaint case upon issuance of the
amended complaint. For purposes of identification, solely, we already have conformed this
caption to the original caption . See footnote 1, supra . They, also allege that the above-
entitled complaint case was not brought against . them, or lawfully amended to include
them , as individuals . whether or not the proceedings in this case were initially brought
against the respondents solely as co-partners , they are parties to the proceedings on the
amended complaint both individually and as co-partners . The amended charge of July 13,
1938,-the second amended charge of September 12, 1938; and the third amended charge of
March 29, 1939 , all charged the respondents individually and as co-partners with having
engaged in unfair labor practices . The amended complaint , resting on these charges, set
forth that it was issued against the respondents "individually and as co-partners." Our
Order below is predicated upon these charges , the, amended complaint , and the record
thereon.
14 No evidence relating to Gochanaur was Introduced at the bearing.
1196 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
adduced. The Trial Examiner made various rulings on other mo-
tions and on objections to the admission of evidence. The Board has.
reviewed the rulings of the Trial Examiner- and finds that' no' prejudi-
cial errors were committed. The rulings are hereby affirmed. As set
forth below, the motion on which ruling was reserved is granted in
part.
On June 27, 1939, the Board, acting pursuant to Article II, Section
38, of the Rules and Regulations, issued an order, which thereafter it
amended, providing that the Trial Examiner issue no Intermediate
Report in the above-entitled complaint case, that Proposed Findings
of Fact, Proposed Conclusions of Law, and a Proposed Order issue
in the consolidated cases, and granting leave to the parties to file
exceptions thereto and to the record, to request oral argument before
the Board, and to request permission to submit briefs to the Board
in said cases. On June 30, 1939, the respondents filed an exception
to the order of June 27, 1939, which the Board on August 4, 1939,
overruled.
On May 10, 1940, the Board issued its Proposed Findings of Fact,
Proposed Conclusions of Law, Proposed Supplemental Order, and
Proposed Direction of Election, to which exceptions were filed by
the respondents and the S. W. O. C. The respondents submitted a
brief in support of their exceptions. Pursuant to notice, a hearing
for the purpose of oral argument was held on June 13, 1940, before
the Board in Washington, D. C. The respondents appeared by coun-
sel, the Federal Union by its representative, and both participated in
the oral argument.
The Board has considered the exceptions filed and brief filed by
the. respondents and the 'exceptions of the S. W. O: C., but, save in
so far as they are consistent with the findings, conclusions, and order
set forth below, finds them without merit.
Upon the entire record in the cases,'e the Board makes the,
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The respondents, Samuel R. Fraim,10 Mary, M. Fraim, Samuel E.
Fraim,17 and Edward T. Fraim, 2nd,1 8 are, and since April 1, 1937,
have been engaged in business as a co-partnership under the trade
name and style of The E. T. Fraim Lock Company. The partnership
manufactures, sells, and distributes various types of locks and night
is See Section III A, infra.
iu Also referred to in the record as Samuel R. Fraim , Sr., and Fraim, Sr.
la Also referred to in the record as Fraim, Jr., and Sam Fraim.
18 Also referred to in the record as Ned Fraim.
E. T. FRAIM LOCK COMPANY ET AL. 1197
latches, and in connection therewith operates a plant in Lancaster,
Pennsylvania, where its products are made. The plant employs
between 124 and 200 production. workers.
The respondents use in the course of manufacturing operations at
the Lancaster plant quantities of brass, steel, copper, tin, manganese,
and paint, which are regularly brought to the plant from outside
the State of Pennsylvania and which constitute 35 per cent of the raw
materials used in such operations. In 1938 and 1939 the respondents
sold between $350,000 and $450,000 worth of finished,. products, of
;which 90 per cent in volume were shipped -from the Lancaster plant
into and through other States of the United States.
The respondents in their answer to the amended complaint admit
that they are engaged as co-partners in interstate and foreign
commerce.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge 1732, was a lodge of Amalgamated Association of
Iron, Steel and Tin Workers of North America, a labor organization,
affiliated with Congress of Industrial Organizations 11 and Steel Work-
ers Organizing Committee,20 labor organizations. Membership in
Lodge 1732 was limited to employees of the Lancaster plant. After
the filing of the third amended charge Lodge 1732 was succedded by
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge 1035, herein called Lodge 1035, affiliated with the
Amalgamated, admitting to membership employees eligible to mem-
bership in the Amalgamated employed throughout the locality of
Lancaster, including employees of the respondents.
Federal Labor Union No. 20836 21 is a Federal labor union affiliated
with American Federation of Labor. It admits to membership em-
ployees of the respondents at Lancaster, including foremen, assistant
foremen, and supervisory employees.
Loyal Fraim Workers Employees' Organization, also known as
Independent Union of Lock Workers, was a labor organization, un-
affiliated with any other labor organization, admitting to membership
persons employed in the Lancaster plant.
. 'a The pleadings and the record were amended at the hearing to designate this organiza-
tion by its present name , Congress of Industrial Organizations instead of by its former
name Committee for Industrial Organization.
=' Steel Workers Organizing Committee is engaged in organizing employees of the basic
steel and fabricating industry for the Amalgamated. It acts for and represents the
Amalgamated.
21 See footnote 8, supra.
1198 DECISIONS OF. NATIONAL LABOR. RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Alleged .unfair labor practices antedating August 26, 1937, and
included in the original complaint
As stated above, the respondents at the hearing moved to dismiss
the allegations of the amended complaint and to strike all evidence
adduced thereon. Ruling on this motion was reserved. In respect to
allegations and evidence relating to matters occurring prior to Au-
gust 26, 1937, the respondents contend that the motion' should be sus-
tained, on the ground that all such matters were settled on that date
by stipulation and agreement of the Board, the respondents, and other
interested parties. The respondents advert to the fact that the orders
above mentioned. of. September 3, 1937,. and October 5, 1937, in the
complaint case, had issued pursuant to this stipulation, and argue
that the vacation of these orders, was erroneous. With respect.to the
allegations of the amended complaint, and pertinent evidence, con-
cerning matters occurring after August 26, 1937, the respondents con-
tend the motion likewise should be sustained, on the ground that, if
true, such matters "can only form the basis of a new charge and a new
complaint against the respondents. They cannot be injected into an
old proceeding which has been settled under a written agreement and
stipulation and where an order based on the stipulation and agree-
ment has issued."
We are of the opinion that the respondents' motion in so far as it
requests a dismissal of averments respecting matters occurring prior
to August 26, 1937, and included in the original complaint,22 should
be treated as a motion for abatement of these present proceedings
as to such matters; and, so treated, should be granted.23 Where; as
here, the Board and the employer enter into a settlement of allega-
tions of unfair labor practices, and in pursuance of such settlement
or otherwise with the employer's consent, an order remedying the
situation is issued, such order, as a matter of sound administrative
policy and practice'24 should not ordinarily be vacated and the allega-
tions tried, whether on the original or an amended complaint, if the
employer fails or 'refuses to comply with the, order. Accordingly,
22 The original complaint was issued in Case No . C-222'on August 16, 1937.
2S Cf. Matter _ of Dickson-Jenkins Manufacturing Co. and United Garment Workers of
America , Local No. 181 , 17 N. L . R. B. 18.
21 See Section 10 (d) of the Act and In the Matter of the Petition of the National Labor
'Relations Board, etc., 304 U. S . 486, with respect to the power of the Board prior to the
filing-of a transcript of the record' in the cas e with the Circuit Court of Appeals, to modify
or set aside , in whole or in part, any finding or order made or issued by the Board.
Cf. Matter of Godchaux Sugars, Inc . and Sugar Mill Workers ' Union, Locals No . 21177 and
No. 2188 affiliated with the American Federation of Labor , 12 N. L. R. B. 568, as to the
effect of stipulations for settlement where no order has been issued by the Board.
E. T. FRAIM, LOCK COMPANY ET AL. 1199
we will direct that the present proceedings abate in respect to allega-
tions of unfair labor practices in the amended complaint included in
the original complaint and antedating August 26, 1937, and .we will
make no findings of unfair labor practices or any order based upon
unfair labor practices in that respect. Since the order vacating the
Decision and Order of September .3, 1937, and the Supplement to
Decision and Order of October 5, 1937, improvidently issued, we grant
the respondents' exception thereto and will reinstate these decisions,
and orders as of the respective dates of their issuance. However,.
evidence introduced into the record pertaining to matters occurring
prior to August 26, 1937, and included in the original complaint,. will
remain part of the. record as a basis for findings, by way of back-
ground,25 to the findings. of unfair labor practices hereinafter set
forth.
We do not think that the respondents'. motion, in so far as.it relates
to allegations and evidence _ concerning matters occurring after
August 26, 1937, or matters occurring prior to that date but not
included in the complaint upon which settlement was had,26 should,
be granted. That the hearing as to such matters was upon an
amended charge and an amended complaint rather than upon a new
charge and,a new complaint at most concerns a question- of practice
and one which worked no prejudice to the respondents. While in
view of our ruling concerning the vacation of the previous-orders in
the complaint case, the better practice would have been for new
proceedings to have been initiated, nevertheless the proceedings had
were in conformity with the requirements of the Act.
B. Alleged support of, and encouragement andd -sponasorship of
membership in, the .Federal Union
In May 1937, following the beginning of organization activities
by the Amalgamated among employees at the Lancaster plant, the
respondents either personally or through various, plant supervisors
promoted and assisted in the formation of a competing labor organi-
zation for, these employees, unaffiliated with any of the national
unions.' This organization was first known as Loyal Fraim Workers
Employees' Organization and thereafter as Independent Union of
Lock Workers. About June 11, 1937, members of this organization
applied to American Federation of Labor to issue a charter to a. labor
21 See International Association of Machinists, Tool & Die Makers Lodge No. 35, Affiliated
with the International Association of Machinists , and Production Lodge No. 1900, Affiliated
with the International Association of Machinists V. N. L. R. B., 110 F. (2d) 29, ft. 14
(App. D. C.).
"The terms of the settlement are set forth in the Decision and Order and Supplement
to Decision and Order in the above-entitled complaint case . See footnote 2, supra.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization'27 herein called the Federal Union, as an affiliate of
American Federation of Labor. In connection therewith, they
signed certain cards which were taken as authorizing the collection
from them of an initial fee and the registration of their names, for
purposes of the issuance of a charter. On June 14, 1937, the charter
issued to these persons as members of an autonomous labor organiza-
tion affiliated with American Federation of Labor. The presi-
dent, secretary, and treasurer of the Federal Union were the same
persons, respectively, who had held similar offices in the Loyal Fraim
Workers .211
We do not find that the foregoing facts or the record show that
the respondents actively supported the Federal Union or encouraged
or sponsored membership in that union, as alleged in the amended
complaint. Identity of membership and officers between a labor
organization affiliated with one of the national unions and an un-
affiliated labor organization previously formed by the employer does
not establish per se illegality under the Act with respect to the affili-
ated labor organization.29 Officials of the respondent co-partnership
testified that after August 26, 1937, all plant supervisors were in-
formed of the terms of the stipulation and agreement above men-
tioned, and were forbidden to interfere with the union membership
or activities of the plant employees or to engage in such activities.
The respondents denied at the hearing that their supervisors ever
violated` these instructions, and, particularly, that after August 26,
1937, any union activities were permitted on company time or prop-
erty.80 They further denied, in substance, that they had engaged in
any unfair labor practices after August 26, 193'7. In situations such
as that here presented, where it is alleged that the employer has
supported and encouraged membership in a labor organization affili-
ated with a national union, for the employer to be found to have
engaged in unfair labor practices in respect to such labor organiza-
tion and for an order affecting the employer's relations with that
organization to issue, it should appear, either by way of affirmative
proof or as a matter of persuasive inference, that membership in that
organization resulted from or was attributable to employer action
illegal under the Act. Under the record presented we are unable to
27 The record is not clear whether this labor organization was the same entity as the
Loyal Fraim Workers or one formed or established in connection with the application for
a charter.
28 The record discloses no other material facts in connection with this circumstance.
:u See -Matter of Dickson-Jenkins Manufacturing Co. and United Garment Workers of
America. Local No. 181, 17 N. L. R. B. 18.
80
While there is testimony to the effect that the employee members of the Federal Union
engaged in some activities on behalf of their union on the plant premises during working
hours, the record does not establish that these activities were with the respondents'
knowledge or consent.
E. T. FRAIM LOCK COMPANY ET AL. 1201
say that the respondents ' employees did not freely establish them-
selves as an affiliate of American Federation of Labor.31
C. The discriminatory discharges of Roark and Applebach
Raymond Roark was discharged by the respondents on January
27, 1938. He worked as a machine adjuster in the pin-tumbler de-
partment of the plant , and assisted in setting up machines and drill
presses. Roark joined the Amalgamated in May 1937 when that
union, as above stated , first began organization activities among the
Lancaster plant employees . Thereafter he held the office of union-
shop steward in his department.
Some 8 months previous to his dismissal ; and shortly after he be-
came a member of the Amalgamated , Roark suffered another discharge
by the respondents . This prior discharge formed the basis, in part,
of the charges upon which the original complaint in the above-
entitled complaint case issued . In connection with that matter, :and
in pursuance of the settlement of August 26, 1937, the Board in its
Order of September 3, 1937, directed the respondent co-partnership
to reinstate Roark, among other persons , to his former position
at the plant , without discrimination , and to pay him an amount of
money as restitution for wages lost. The record establishes that
Roark's prior discharge resulted from the determined opposition of.
the respondents . to .the establishment of a lodge of the Amalgamated
at their plant . At the time of that discharge Roark was summoned
to the business office of the plant and there interrogated by Samuel
R. Fraim and Samuel E. Fraim in the presence of Roark's foreman,
the assistant plant superintendent , and Edward T. Fraim. He was
asked about the lodge being formed by the Amalgamated , who among
the plant employees were its members , and which employees had invited
the. Amalgamated to unionize the plant.3 ' Upon Roark , disclaiming
knowledge of these matters ; Samuel R. Fraim raised one of the win-
dows, saying that he had "to raise the window and let a lot of air
out," that it "smelled like a skunk in there." When Roark persisted
in his disclaimer , Samuel E. Fraim said that if Roark would not give
the requested information he would be given his pay check. Roark
then was discharged . Samuel R. Fraim remarked that Roark ought
to "leave town right away."
31 See Hatter of Dickson -Jenkins Manufacturing Co. and United Garment Workers of
America. Local No. 181, 17 N. L. R. B. I.S. Although we hereinafter find that the
respondents discriminatorily discharged two employees because of their membership in and
activities on behalf of the Amalgamated , we do not consider the incidental benefit to the
Federal Union resulting from these discharges, standing alone , as sufficient to support the
allegations of the amended complaint in respect to the Federal Union.
See Hatter of Foote Brothers Gear and Machine Corporation and United Office and
Professional Workers of America, No. 2 4, 14 N . L. R. B. 1045, 1054, concerning interroga-
tion by employers of union members about union members.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately following the execution of the settlement of August
26, 1937 , one Constine , a representative of the Amalgamated 23 sub-
mitted to the respondents, represented by Samuel E. Fraim, a list
of the names of employees , including Roark, to be reinstated under the
Order provided in the settlement. Upon examining the list Fraim
commented that "many people who are going to be reinstated are
not going to be around here very long," and specifically adverted to
Roark. At the hearing Fraim denied making this statement. How-
ever, in view of the circumstance that his remark reflected the atti-
tude of the respondents toward Roark as disclosed by the facts above
and hereinafter set forth , we are satisfied that the statement was
made. Constine 's testimony of this incident is entitled to credence.
On September 7, 1937, Roark, in pursuance of the order of Sep-
tember 3, 1937 , was reinstated to his position in the pin-tumbler
department. On the first day of his return to work he was instructed
by his foreman to carry seven weights, each of approximately 60 or
70 pounds, from the foundry, another department located on the
first floor of the plant, to the machine shop on the third floor. Later
that day he was ordered to carry the weights from the third floor
down to the foundry. He was specifically instructed not to use the
elevator in the plant for such purpose. Roark never theretofore had
worked in the foundry or been requested to carry weights. Upon
being told to do this work, he informed the foreman of these facts,
and at the hearing, testified that the elevator had always been used
for such purpose. The foreman's response was to the effect that
"the boss" had told the foreman that Roark did not have to carry
.the weights, that he could quit. At the hearing the respondents con-
tended that carrying the weights was within the normal scope of
Roark's duties , that Roark was assigned the task because the foundry
was shorthanded , and that 'the instruction to Roark not to use the
elevator was in jest. None of these contentions warrants belief.
The respondents ' witnesses were able to name only two persons,
the foreman and ' a laborer in the foundry department , who ever
in the past, had carried the weights. The foundry foreman testi-
fied_ that he had never before observed Roark at work in his de-
partment . Samuel E. Fraim, who testified that Roark's normal
duties included weight carrying, admitted that he did not know
whether Roark prior to his reinstatement had performed such a task
and also testified that he knew of no reason why Roark should
have been forbidden the use of the elevator . We find that the re-
spondents assigned to Roark an onerous task outside of his regular
work upon the very first day of his return, and prohibited his use of
'3 The Amalgamated filed the original charges.
E: T. FRAIM LOCK COMPANY ET AL. 1203
the elevator in ,performing that task, as_ a means of making known to
him that they did not desire to retain him in their employ. This
hostility toward Roark was founded on the.same reason 'as his dis-
charge, namely, the. respondents' opposition to the Amalgamated as
a labor organization for the plant employees.
About 4 or 5 weeks after his return to' work Roark had his working
week reduced by the respondents from 5 to 3 days, and in December
1937 it was further reduced to 1 day a week. Other employees en-
gaged in similar work did not have their working time cut. Roark
was compensated on an hourly basis, and as a result was unable to earn
as much money as other employees . ' He protested to Edward T.
Fraim, 2nd, that the reductions were discriminatory, stating that the,
settlement of August 26, 1937, contemplated that available work
would be "equalized ." Fraim replied that Roark's name "wasn't even
in the stipulation " of settlement 34 because he, Roark, was an "assistant
foreman," and that the respondents were giving ' Roark all the work
they had for him. Roark said that he never had been informed that
he was an assistant foreman, whereupon Fraim summoned the as-
sistant plant superintendent , who assured Roark that he was an
assistant foreman. No increase in Roark's working time thereafter,
was made. -
The night of January 23, 1938, a Sunday, Roark was arrested on
an assault and battery charge and'was taken into custody. He was
released the following evening upon : paying an 11-dollar fine. In
consequence , Roark was unable to report to work that Monday, Janu-
ary 24. Monday was the single day of the week when work was
made available to him. ' On Thursday , January 27, Roark was notified
by the respondents that he was discharged for failing'to report for
work.
Prior to his discharge on January 27, Roark had been receiving $7
weekly as relief payments ' from the State Emergency Relief Board
of Pennsylvania . Because of the loss of earnings consequent upon
his discharge he made application to the relief authorities for an
increase in the amount of his payments . One week later all-relief
was disallowed him, on the ground that he voluntarily quit his work
at the plant . ' Upon inquiry of the relief authorities , Roark was shown
a form filled in ,by his foreman , stating that he had quit. He told
them that this was not so , and the relief authorities then unsuccess-.
fully attempted to communicate by telephone 'with Samuel' E. Fraim
to ascertain the fact. Roark himself later telephoned Fraim and
informed him that he , Roark, understood that he only had quit and
suggested that he might report back to.work. Fraim replied, "No,
It Roark' s name is there mentioned.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get this in your head and keep it there. You are fired." Roark then
inquired whether Fraim would fill in the necessary papers to that
effect in order to permit Roark to obtain relief. Fraim refused to
do this, saying that he never did that and proposed to make no ex-
ception in Roark's case. Roark reported this to the relief authori-
ties and they took the position that Roark would receive no more
relief payments. However, they did indicate that if Roark could.
bring his foreman to them and if the foreman advised them that a
discharge in fact occurred, the relief allowance would be reinstated.
Roark then went to his foreman's home and persuaded him to go to
the relief authorities. There the foreman stated that Roark had been
discharged.
As averred in their answer, the respondents contend that Roark
was discharged because he absented himself from work without ex-
cuse on January 24, 1938, because he had been arrested for assault and
battery, and because he had a "record" which made him an undesirable
employee. In respect to the so-called "record," the evidence was to
the effect that Roark pleaded guilty in 1928 to a charge of driving
while intoxicated, and in March 1937 was given a suspended sentence
for theft of part of, a fan taken from a wrecked automobile. The
respondents also offered to show, which offer for purposes of this
decision and order only we consider as proof, that Roark was arrested
in 1936 on a charge of cashing a check under a representation of funds
in the bank, without having funds on deposit, and that this charge was
nolle pressed pursuant to a settlement with the complainant bank.
The evidence, establishes that these matters were known to the respond-
ents prior to January 27, 1938, and prior to the settlement of August
26, 1937.36
We are satisfied from the foregoing facts, considered in the light
of the entire record, that the respondents discharged Roark on Janu-
ary 27, 1938, because of an unceasing animosity founded upon the
circumstance that 8 months previous this employee had identified him-
self with a labor organization to which the respondents were opposed
and, despite a discharge for refusing to reveal union matters to the
respondents' managerial staff, succeeded in obtaining reinstatement
under an order of the Board. As we already have found, from the
very beginning of his reinstatement in September 1937, Roark con-
tinued to be the object of his employers' animosity. Discrimination
against him did not end with the weight-carrying incident. We find
that the respondents' refusal to assign him an aliquot share of the
36 At the hearing Samuel E. Fraim testified that the respondents considered Roark's em-
ployment subsequent to his arrest in 1937 as the "last chance" they would give him for
employment after such an incident.
E. T. FRAIM LOCK COMPANY ET AL. 1205
available work was a further manifestation of their animosity, coupled
in this instance with an expectancy that thereby Roark might be in-
duced to quit. No satisfactory explanation has been given by the
respondents for their failure to provide Roark an equal opportunity
with other employees to obtain work, or for their diminution of his
working days. Indeed, the respondents' antipathy toward Roark
revealed itself even after the discharge in the response of Samuel E.
Fraim to Roark's request that he, Fraim, truthfully advise the relief
authorities concerning his discharge in order that Roark and those
dependent on him might obtain, necessities 'from the authorities. We
are convinced, and we find, that the respondents did not discharge
Roark for the 1-day absence. Other employees had absented them-
selves from work without being, dismissed. As above mentioned,
Roark was paid on an hourly basis. In respect to his "record" of
misconduct prior to January 23, 1937, a record made before he joined
the Amalgamated, we think it plain -that the respondents had con-
doned it and, in the light of that fact, we do not believe that Roark's
misconduct on January 23 would have been treated any differently by
them, had it not been for their antipathy toward him because of his
union membership and his having invoked the protection of the Act.
We find that the respondents discharged Raymond Roark on Janu-
ary 27, 1938, and thereafter refused to reinstate him, because he, joined
and assisted the. Amalgamated and engaged in concerted activities
with other employees of the Lancaster plant for the purpose of collec-
tive bargaining and other mutual aid and protection, thereby discrim-
inating in regard to the hire and tenure of employment of Roark and
discouraging membership in the Amalgamated. We further. find that
the respondents, by failing to provide Roark with an aliquot share of
the available work subsequent to his reinstatement, because of their
anti-union animosity toward him, discriminated in regard to the terms
and conditions of Roark's employment and discouraged membership in
the Amalgamated. We further find that the 'respondents, by such
discrimination in regard to hire and tenure of employment and terms
and conditions of employment, interfered with, restrained; and coerced
their employees in the exercise of rights guaranteed in Section 7 of
the Act.
At the time of his reinstatement Roark's working week was 5 days;
at the time of his discharge he was paid an hourly rate of 471/2 cents.
.Since March 18, 1938, Roark has received monthly payments of $5.7.20
for work performed for the Works Progress Administration.36
se As hereinabove stated, Roark was receiving weekly relief payments of $7.at the time
of his discharge . It is not clear whether sometime thereafter these 'payments were.
,increased to $11.
283035-42-vol. 24-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor Applebach was discharged by the respondents on June 27,.
1938.37 He was a competent worker and had been -employed at the
plant for approximately 10 years. 'At the time of his discharge he
worked in the press department. Applebach also joined the Amalga-
mated in May 1937 when that organization first began its campaign
to unionize the plant, and thereafter was active in union affairs. He
served as union shop steward and as a member of the union grievance
committee at the plant. In these capacities, he was called upon to dis-
cuss union matters with the respondents.
Like Roark's, Applebach's tenure of employment was the subject, in
part, of the charges filed in 1937 upon, which the original complaint
in the above-entitled complaint case was based. Under the order of
September 3, 1937, Applebach was reinstated by the respondents to his
position at the plant, with compensation for wages lost.
On the morning of June 22, 1938, three-quarters of an hour before
the beginning of his working day, Applebach went to the plating room
of the plant and spoke with the assistant foreman of the department,
one Greenawalt, about some plating. The matter was -a personal one,
and at the time of the conversation employees were .working in the
room. Greenawalt did not reprimand Applebach for being in the
plating room or in any way indicate that Applebach should not have
been there. Thereafter, Applebach left the room and awaited his
time to begin work. He worked the entire day. At the beginning of
his following workday, June 27,38.-he was asked by his foreman if he
had been in the plating room ; Applebach stated that he had, and the
foreman then discharged him, saying, "I got my orders to get rid of
you." Applebach protested that he lead violated no company rule in
going to the plating room, that he had not gone there on company
time, and that he then had his "dog tag" with him. Applebach pro-
duced the tag but his foreman said nothing further.
In their answer, the respondents averred that "Applebach was dis-
charged because he left his place of employment against company
orders and without permission, and was found' in another department
which was then working, without the consent of his foreman on per--
sonal business.", The evidence shows that on August 26, 1937, when.
the settlement heretofore mentioned was executed, or shortly there-
37 Applebach testified that he was discharged on June 27, but that his last working day
was. June 22, 19 38. His foreman testified that he thought Applebach was discharged on
June 23, 1938, . that Applebach was not discharged on June 27, and that the foreman based'
his recollection on his time sheet which showed that Applebach was paid on June 23.
Applebach' s testimony is positive , and his further testimony that from June 22 to June 27
he and apparently some other employees were not assigned work, would explain the differ-
ence in the two versions . We think his testimony as to the date is accurate , although we
do not intend thereby to impugn the honesty of his foreman as a witness in this matter.
88 See footnote 37, supra.
E. T. FRAIM LOCK COMPANY ET AL. 1207
after, the respondents posted notices in the plant notifying all em-
ployees that none would be "allowed "to leave" his or her depart=
ment without a pass card from the foreman, and that violation of
this rule would result in discharge. For purposes of carrying out
the rule, so-called "dog tags" bearing the name of each employee
were prepared, and these were given from time t_o time to the em-
ployees by their foreman or the timekeeper when they had to leave
their department on business in another department. It was under-
stood that when such business was completed the tags or' pass cards
would be returned to the custody of the timekeeper. At the hearing
Applebach's foreman testified that he discharged Applebach for hav-
ing "his tag in his pocket before working hours," also because Apple-
bach had told him at the time of the discharge that" Applebach had
"carried his tag around in his pocket for a couple of weeks, which I
don't think he did.",
We are convinced, and we find, that Applebach was discharged on
-June 27, 1938, because of the animosity which "the respondents enter-
tained toward him as a result of his past and continuing identifica-
tion with-the Amalgamated and of his reinstatement through the in-
tervention of that union. Considered in the light of the history of
labor relations between the respondents and the Aamalgated, includ-
ing the successful results achieved by that organization in the pre-
vious proceedings herein, Applebach's discharge stands disclosed as
another counter blow aimed by the respondents at the Amalgamated.
We find that the incident of Applebach's carrying a tag was seized
upon by the respondents as a mere pretext for dismissing an em-
ployee whom they would not have dismissed had he never joined and
assisted the Amalgamated: ; As stated above, Applebach was con-
cededly a competent workman and had beenemployed at the plant
for 10 years. . No other employee is shown to have been discharged
for violation of the" rule in question, if, indeed, the rule applied to
cases of visits by employees to other departments outside of working
hours. There is no showing of violations of the rule at that time
so extensive as-to require that an example be made of some violator.
A line of interrogation by the respondents' counsel during the hear-
ing tended to show that the rule was adopted to prevent interdepart-
mental solicitation of union membership and union activities by em-
ployees during working hours.39. If this is so, then clearly the dis-
• charge had no reasonable relationship to enforcement of the rule in
Applebach's case.
8 At 'the oral argument, counsel for the respondents stated, "we found we had two
unions in the plant. . As might be expected, there is the risk of considerable activity among
the employees , and the rule was invoked that no one could leave his department without
getting a tag from his foreman."
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find- that the respondents discharged' Taylor Applebach on
.June 27, 1938, and thereafter refused to reinstate him because he
joined and assisted the Amalgamated and engaged in concerted ac-
tivities with other employees for the purpose of collective bargaining
and other mutual aid and protection, thereby discriminating in re-
gard to hire and tenure of employment of Applebach and discourag-
ing membership in the Amalgamated; that by such discrimination
in regard to hire and tenure of employment, the respondents inter-
fered with, restrained, and coerced their employees in the exercise
,of the rights guaranteed in Section 7 of the Act.
At the time of his discharge Applebach earned a weekly wage of
.$18.40. He has received weekly relief 40 of $15.20 since the third
week after his dismissal. Since his discharge he has earned nothing.
IV. THE EFFECT OF THE 'UNFAIR LABOR PRACTICES 'UPON COMMERCE
The activities of the-respondents set forth in Section III C above,
occurring in connection with the operations of the respondents de-
scribed in Section. I above, have a close, intimate, and substantial
.relation to trade, traffic, and commerce among the several States, and
'foreign 'commerce, and tend to lead-to labor disputes burdening and
c;bstructing commerce and the free flow of commerce.
V. THE REMEDY
It is essential to an effectuation of the purposes and policies of
the Act that the respondents be ordered to cease and desist from the
unfair labor practices in, which we have found them to have engaged,
And, in aid of such order and as a means of removing and avoiding the
consequences of such practices, that the respondents be ordered to take
certain action more particularly described below.
We have found that the respondents discharged Raymond Roark
and Taylor Applebach and 'discriminated in the amount of work
assigned to Roark, because these employees joined and assisted the
Amalgamated, thereby discouraging membership in the Amalgamated
and interfering with, restraining, and coercing the plant employees
at Lancaster in the exercise of the rights guaranteed in the Act. The
.respondents must cease and desist from such unfair labor practices,
and we shall so order. Further, to effectuate the policies ' of the
Act we shall order the respondents to offer Raymond Roark and
Taylor Applebach immediate and full reinstatement to their former
or substantially equivalent positions at the plant, without discrimina-
tion in regard to the nature or amount of work or any term or con-
dition of their employment because of union affiliation or activities,
40 The record does not disclose the precise nature of these relief payments.
. -T. FRAIM.'LOCK COMPANY ET AL . 1209E- ' '
and without prejudice to their seniority and other rights and priv-
ileges, and to make Roark and Applebach whole for any loss of
pay they ' have suffered by reason of their discharges by payment,
to each of them of a sum of money equal to the amount which, he
normally.would have earned as wages from the date of his discharge'
to the date of the offer of reinstatement, less his net earnings 41
during said,period. Since we have found that the respondents also
discriminated against Roark in the amount of work given him after
his reinstatement on September 7, 1937, and prior to his discharge,
we shall further order the respondents to pay him such a sum of
money as together with what he earned during the period will make
his earnings equal to the amount of money he would have earned
had the respondents not discriminated against him in this respect.
It is shown by the record that one Weidenmoyer, the treasurer of
the Federal Union, exercises some minor supervisory authority at
the plant. . As already set forth, this Union admits to membership'
.foremen, assistant foremen, and other supervisory employees 42 . We
have had occasion to point. out that employees such as these, despite
their authority over other employees, may be members of a legitimate
labor organization to which non-supervisory 'employees are admitted,
without the employer thereby violating the Act, provided such em-
ployees do not by statements or conduct bring the employer's economic.
power and interest-to bear upon employees, or otherwise act for the
employer, in such a manner as interferes with, restrains, or coerces
employees in the exercise of rights guaranteed by the Act 43 We,
are of the opinion that, subject to a similar limitation, Weidenmoyer's
41 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 respondents , which would not 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 Amer-
ica, 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
are not considered as earnings , but, as provided below in the Order, shall be deducted from
the sum due the employee , and the amount thereof shall bepaid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or governments
which supplied the funds for said work -relief projects.
42 See Section II, supra . In the unit hereinafter found to be appropriate for collective
bargaining , foremen and supervisory employees are excluded.
43 In Matter of Tennessee Copper Company and A. F . of L. Federal Union, No.. 21,16/,,
9'N.' L. R . B. 117, a question presented itself whether foremen who were members of a
legitimate labor organization could utilize the employer 's economic power to gain adherents
among employees for their organization . The Board said :
Membership of supervisory employees in a labor organization involved in. a contro-
versy over representation cannot confer on such employees a privilege to interfere,
nor can the immunity guaranteed employees by the Act be impaired or diminished
by the membership rules of any -labor organization . The employees' right to a
choice free from employer interference is absolute . Eupervisory employees, al-
though eligible for membership in competing labor organizations , are forbidden by\
the Act , in their capacity as the employer 's agents, to interfere in the selection of
employee bargaining representatives , yet there need be no conflict by reason of their
dual status . It is perfectly. consistent for supervisory employees to belong to labor
1210 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
holding office as treasurer in the Federal Union does not involve
liability of the respondents under the Act for unfair labor practices.
Our order below shall be so construed. However, because of Weiden-
moyer's capacity and status as an employer representative, because
of the present state and history of labor relations at the Lancaster
plant, and other circumstances, solicitation by him of membership in
the Federal Union, or other conduct or statements by him to em-
ployees. influencing employees in their adherence to the Federal
Union or choice of a labor organization and collective` bargaining
representative, would be attributable to the respondents and impose
responsibility upon them under the Act. Our order shall be so.con-
strued. We expressly note that nothing herein contained is intended
to indicate that under other circumstances supervisory employees may
hold office in a labor organization to which non-supervisory employees
belong without imposing responsibility upon the employer for acts
and statements in pursuit of their office.
VI,. THE , QUESTION CONCERNING REPRESENTATION
The respondents have refused to recognize .or bargain collectively
with the Federal Union as a representative of their employees, al-
though requested to do so by that union, for the reason that the
Amalgamated claims to be the exclusive representative of these em-
ployees for collective bargaining purposes. In view of the lapse of
time since the issuance of our order of October 5, 1937, in the above
entitled complaint case, directing the respondents to recognize and
bargain collectively with Lodge 1732, such order constitutes no bar to
an investigation and determination of the rival claims to representa-
tion here presented.44
We find that a questiton has arisen concerning representation of
employees of the respondents.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation .which has
arisen, occurring in. connection with the operations of the respondents
organizations and yet be prohibited from conduct , permitted non-supervisory
employees.
See also Matter of Ford Motor Company and United Automobile Workers of America,
Local No. 325 , 23 N. L. R. B. 342. As to the inclusion of supervisory and non-super-
visory employees in d unit for collective bargaining purposes, see Matter of West Oregon
Lumber Company and Lumber and Sawmill Workers Local Union No. 3, International
Woodworkers of America ; Matter of West Oregon Lumber Company and Lumber and Saw-
mill Workers Union, Local No. 2532, chartered by the United Brotherhood of Carpenters
and Joiners . of America, 20 N. L. It. B. 1; Matter of Pacific Gas and Electric Com-
pdny and United Electrical and Radio Workers of America; Matter of Pacific Gas and
Electric Company and United Electrical , Radio and Machine Workers of America, 13
N. L. It. B. 268.
44 The amended complaint alleges no violation of Section 8 (5) of the Act.
E. T. FRAIM -LOCK COMPANY ET AL. 1211
described in'Section I above, has a close, intimate, "arid substantial
relation to trade, traffic, and commerce among the several States, and
foreign commerce, and tends to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
At the hearing the Federal Union, the S. W. 0. C: for the Amal-
gamated, the respondents, and counsel for the Board stipulated and
agreed that all production and maintenance employees of the respond-
ents at the Lancaster plant, excluding clerical employees, foremen,
and other. employees' having supervisory duties, constitute a unit
appropriate for the purposes of collective bargaining. We see no.
reason for not finding this unit to be appropriate. Accordingly, we.
find that all production and maintenance employees of the respond-
ents at the Lancaster plant, excluding clerical employees, foremen, and
other supervisory employees, constitute a unit appropriate - for the
purposes of collective bargaining, and that said unit will insure,to
employees of the respondents the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Federal Union claimed to represent a majority
of the employees in the unit we have found to be appropriate, and
the S. W. 0. C. made a like claim in behalf of the Amalgamated.
'Documentary and other evidence was introduced in support of,the
respective claims. In view of the, nature and quantity of the proof
offered regarding representation, we believe, and find, that the ques-
tion which has arisen concerning the representation of the respond-
ents' employees can best be resolved by holding an election by secret
ballot to determine their choice of a collective bargaining representa-
tive. Those employees in the appropriate unit who were employed
by the respondents ' during the pay-roll period next preceding the
date of this Direction of Election will be eligible to vote, subject
to such limitations and additions as are set forth in the Direction.45
In view of our finding that Roark and Applebach were discrimina-
torily discharged, and our order below directing their reinstatement,
these two employees are entitled to vote in the election directed .46
"The parties agreed at the hearing that the respondents ' pay rolls of March 18, 1938,
and April 6, 1939; contained the names of the employees in the appropriate unit, appar-
ently intending thereby that these pay rolls be used for determining the question of repre-
sentation . However, we believe that the interests of all parties will best be served by
permitting employees to vote whose names appear on the pay roll we have designated for
such purpose.
40 See Busemamn Manufacturing Company and MoGraw . Electrtc Company, a corporation
v. N. L. R. B., 111 F. (2d) 783 (C. C. A. 8).
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel and Tin Workers of.
North America, Lodge 1035; Amalgamated Association of Iron, Steel
and Tin Workers of North America; Steel Workers Organizing Com-
mittee;and Federal Labor Union No. 20836 are labor organizations,
within the meaning of Section 2 (5) of the Act. Amalgamated As-
sociation of Iron, Steel and Tin Workers of North America, Lodge
1732, and Loyal Fraim Workers Employees' Organization, also known
as Independent Union of Lock Workers, were labor organizations,
within the meaning of said section.
2. By discriminating in regard to the hire and tenure of employment
of Raymond Roark and Taylor Applebach, and the terms and condi-
tions of employment of said Roark, thereby discouraging membership
in Amalgamated Association of Iron, Steel and Tin Workers of North
America, and in Amalgamated Association of Iron, Steel and Tin
Workers of North America, Lodges 1732 and 1035, the respondents
have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing their. employees in
the exercise of the rights guaranteed. in Section 7 of the Act, the re-
spondents have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondents have not engaged in unfair labor practices in
respect to Federal Labor Union No. 20836 and Robert Gochanaur, as
alleged in the amended complaint.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondents, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
7. All production and maintenance employees of the respondents at
the Lancaster plant, excluding clerical employees, foremen, and other
supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
Act.
SUPPLEMENTAL 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-
ents, Samuel R. Fraim, Mary M. Fraim, Samuel E. Fraim, and Ed-
E. T. FRAIM LOCK COMPANY ET AL. .1213
ward T. Fraim , 2nd, individually and as co-partners doing business
under the trade name and style of The E. T. Fraim Lock Company,
Lancaster , Pennsylvania , their agents , successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of Iron,
Steel and Tin Workers of North America, in Amalgamated .Associa-
tion of Iron, Steel and Tin Workers of North America, Lodge 1035,
,or in any other labor organization of their employees by discriminat-
ing in regard to hire or tenure of employment or any term or condi-
tion of employment, because of membership in or activity on behalf
of any such labor organization;
(b) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities , for the purpose of collective bargaining or :other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Raymond Roark and Taylor Applebach immediate and
full reinstatement to their former or substantially equivalent posi-
tions at the Lancaster plant without discrimination in regard to the
nature or amount of their work, or any term or condition of their em-
ployment , because of union affiliation or activities, and without preju-
dice to their seniority and other rights and privileges;
(b) Make whole Raymond Roark and Taylor Applebach for any
loss of pay they may have suffered by reason of their respective dis-
charges, by payment to each of them a sum of money equal to the
amount which he normally would have earned as wages from the date
of his discharge , January 27 , 1938, and June 27 ,1938, respectively,
to the date of the offer of reinstatement , less his net earnings 47 during
such period ; deducting , however, from the amount otherwise due
said employees , monies received by them during said periods for work
performed upon Federal , State, county , municipal,' or other work
relief projects , and pay over the amount so deducted to the appropriate
fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work-relief
projects;
. (c) Pay to Raymond Roark, apart from and in . addition to the
.amount payable to him under paragraph 2 (b) of this Order, such a
sum of money as together with what he earned from September 7, 1937,
to January 27, 1938, at the Lancaster plant will make his earnings
47 See footnote 41, supra.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equal to the amount of money he would have earned during said
period, had it made available to Roark during said period an equal
share of the work which he and other employees at the plant then
performed ;
(d) Post immediately in conspicuous places at the respondents' Lan-
caster plant and offices, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to their employees
stating: (1) that Samuel R. Fraim, Mary M. Fraim, Samuel E. Fraim,
and Edward T. Fraim, 2nd, individually and a's co-partners doing
business under the trade name and style of The E. T. Fraim Lock
Company, will not engage in the conduct from which they are ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that
they will take the affirmative action set forth in paragraphs 2 (a), (b),
and (c) of this Order; and (3) that the employees are free to become
or_remain members of Amalgamated Association of Iron, Steel and
Tin Workers of North America, and Amalgamated Association of
Iron, Steel and Tin Workers of North America, Lodge 1035, and that
the respondents will not discriminate against any employee because of
membership in or activity on behalf of these organizations or any other
labor organization of their employees ; and
(e) Notify the Regional Director for the Fourth Region, in
writing, within ten (10) days from the date of this Order what
steps the respondents have taken to comply' herewith.
AND IT IS FURTHER ORDERED that the amended complaint. in so far
.as it alleges that the respondents engaged in unfair, labor practices
respecting Federal Labor Union No. 20836 and Robert Gochanaur be,
and the same hereby is, dismissed.
AND IT IS FURTHER ORDERED that the complaint of August 16, 1937,
the Decision and Order of September 3, 1937, and the Supplement
to Decision and Order of October 5, 1937, of the above-entitled com-
plaint case, be, and the same hereby are, reinstated nuns pro tune as
of said dates, respectively, and that the amended complaint of
April 8, 1939, in so far as it alleges unfair labor practices occurring
prior to August 26, 1937, and included in said complaint of
August 16, 1937, herein reinstated, be, and the same hereby is,
dismissed.
DIRECTION OF ELECTION
By virtue of and 'pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the-National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
E. T. FRAIM LOCK COMPANY ET AL. 1215
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Samuel R . Fraim, Mary M. Fraim, Samuel E. Fraim, , and
Edward T. Fraim, 2nd , co-partners trading under the trade name
and style of The E. T. Fraim Lock Company , Lancaster , Pennsyl-
vania, an election by secret ballot shall be conducted as early as
possible but not later than thirty (30) days . from the date- of this
Direction of Election , under the direction and supervision of the
Regional Director for the Fourth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations; among all pro-
duction and maintenance employees of said co-partnership at its
Lancaster plant who were employed during the pay-roll period next.
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill
or on vacation , and employees who were then and have since been
temporarily laid off, but excluding all clerical employees , foremen,
and other supervisory employees , and persons who' have quit or have
been discharged for cause since that date , to determine whether they
desire to be represented by Federal Labor Union No. 20836 or by
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge 1035 , for the, purposes of collective bargaining, or
by neither.
MR. WILLIAM M . LEISERSON took no part in the consideration of the
above Second Supplement to Decision, Supplemental Order, and
- Direction of Election.