The Locomotive Finished Material Co.

National Labor Relations Board - Board Decisions

Sep 29, 1943

52 N.L.R.B. 922 (N.L.R.B. 1943)

In the Matter of THE LOCOMOTIVE FINISHED MATERIAL. COMPANY and
INTERNATIONAL ASSOCIATION OF MACHINISTS
In the Matter of THE LocoMOTIvE FINISHED MATERIAL COMPANY and
INTERNATIONAL MOULDERS & FOUNDRY WORKERS UNION OF NORTH
AMERICA, LOCAL No. 418, AFFILIATED WITH THE AMERICAN FEDERATION
OF LABOR
Cases Nos. C=26.53 and C-26541 respectively.Decided September 29,
1943
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by Interna-
tional Association of Machinists, herein called the Machinists,) and
International Moulders & Foundry Workers Union of North America,
Local No. 418, affiliated with the American Federation of Labor, herein
called the Moulders, against The Locomotive Finished Material Com-
pany, herein called the respondent, a hearing was held before a Trial
Examiner at Atchison, Kansas, from April 27 to 29 and on May 6,
1943, in which the Board, the respondent, and Machine Shop Em-
ployees' Association of Atchison, herein called the Independent, par-
ticipated by their representatives. The Board has reviewed the rul-
ings of the Trial Examtner made on motions and on objections to the
admission of evidence, and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
On June 22, 1943, the Trial Examiner issued his Intermediate Re-
port, a copy of which is annexed hereto, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action. Exceptions to the Inter-
mediate Report and other parts of the record, and supporting briefs,
were thereafter filed by the respondent and the Independent. Pur-
suant to notice to all parties, oral argument was held before the Board
in Washington, D. C., on August 10, 1943, in which the respondent
' The Machinists has notified us of, its withdrawal of affiliation with the American
Federation of Labor
52 N. L. R. B., No. 162.
922
THE LOCOMOTIVE FINi1SHED MATERIAL COMPANY 923
participated. Upon consideration of the entire record, we affirm and
adopt the findings of the Trial Examiner, except insofar as they are
inconsistent with our findings hereinafter set forth.
In the early part of 1934 the respondent, through its general and
plant superintendents, called a meeting of a group of its employees
and suggested the formation of a labor organization; requested certain
changes in a plan, which was drafted by this group for the establish-
ment of The Machine Shop Employees' Association of The Locomotive
Finished Material Company, herein called the Association; approved
the plan as so amended, which plan included provisions for company
support, assistance, and control; permitted Association elections on
company time and property; and promptly recognized and dealt with
the Association as the employees' exclusive, representative. In addi-
tion, membership and committee meetings were held in the plant cafe-
teria without objection by the respondent. Although the, cafeteria
was ]eased to a concessionaire, the employees must have viewed this
use of the cafeteria as indicating the respondent's approval of the
Association.2
After July 5, 1935, the effective date of the Act, the respondent's
relations with respect to the Association continued without change;
it continued to recognize, deal, and contract with the Association as the
employees' exclusive representative. However, interest in the Asso-
ciation began to wane, and early in 1941 the Association became dor-
mant. Thereafter, no membership meetings or elections were held,
and the Association showed no other sign of activity. The respondent
nevertheless dealt and contracted with the Association's negotiating
committee, and continued to do so even after the committee's term of
office had expired.
In November 1942, the Machinists and the Moulders commenced or-
ganizing the respondent's machine shop and foundry employees, re-
spectively. ' On November 21, the Machinists wrote the respondent a
letter, in which it claimed majority representation of the machine shop
employees and requested a collective bargaining conference. On No-
vember 28, the respondent replied, refusing the request on the ground
that it had no proof of majority, and suggesting a consent election.
Less than a week later, on December 4, 1942, the respondent seized
on an opportunity to revive employee interest in the dormant Asso-
ciation when it met with a group of old employees concerning their
request for an increase in certain wage rates. These old employees,
who resented the comparatively high earnings of the many new and
inexperienced employees, did not claim to be an Association committee,
' It is significant to note that the Association's independence of action was strictly
limited by the fact that its dues were 60 cents, and that an employee obtained a perpetual
or life membership upon one payment.
924 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
although most of them were members of that organization. Muchnic,
the respondent's president, spoke to the group about the benefits which
the respondent had given the Association in the past, and deplored
the employees' laxity in permitting interest in the Association to die,
out. Moorhead, the respondent's general superintendent, testified in
effect that the group was told that it was "too bad" that for the past
year or more the Association had not continued to present grievances
to Muchnic as they arose. At about the same time, Muchnic had a con-
versation with Reeves, the Machinists' chief organizer, in which,
Muchnic admittedly reminded Reeves of the benefits which the re-
spondent had given to the Association.
Three days later, on the evening of December 7, 1942, the Associa-
tion, which had been inactive for more than a year and a half, held an
open meeting in the respondent's cafeteria which the respondent per-
mitted the employees on the night shift to attend without loss of pay.
The leaders at this meeting were two employees not previously active
in the Association, Hekelnkaemper and Butcher, who were forthwith
elected the Association's chairman and secretary-treasurer,' respec-
tively. The meeting was an effort to revive the Association in order to
oppose the Machinists, as the Association's previous chairman testified 3
Meanwhile, as the Trial Examiner found, the respondent had been.
leaking anti-union statements to its employees through Production
Manager Nass, Foremen Bishop and Cooley, and Subforemen Willis
and Rindom.4 On December 8, 1942, Eric B. Bjurman, an interna-
tional representative of the Machinists, without knowledge of the day-
old revival of the Association, met with the respondent and agreed to
a consent election. However, the respondent insisted that the Associa-
tion be made a party to the elections After investigation by Board
agents had disclosed that the Association apparently was a currently
existing labor organization, the Association also was accorded a place
on the ballot. On December 14, Superintendent Moorhead called both
the old and the newly elected Association representatives into his office
and advised them that the respondent had filed an application with the
National War Labor Board for approval of the wage increase re-
S According to the Association 's records , 34 new members were signed up at the' meeting,
11 times as many as had joined' during the preceding 48 weeks of 1942 ; 43 more were
signed up prior to the consent election of December 21, hereinafter discussed; and 22
more were signed up by January 2, 1943.
4 The Trial Examiner found that Reeves testified that he was told by Willis that the
respondent 's supervisory officials believed Reeves to be the Machinists ' leader and were
keeping him under surveillance ; the Trial Examiner credited such testimony Reeves
did not so testify, and the Trial Examiner 's contrary finding is hereby reversed . However,
Reeves did testify that, after becoming active on behalf of the Machinists, he was "accused"
of such activity and ordered by Willis to stay at his machine ; and Willis in effect admitted
that his order resulted from Reeves ' union activity . We credit this testimony of Reeves
and Willis.
e At the same time the respondent and the Moulders entered into a separate consent-
election agreement, in which no claim was made that the Association was interested.
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 925
quested by the group of employees 10 days earlier .6 On December 21,
the consent election was held, after considerable campaigning by both
the Machinists and the Association.' A majority of the ballots were
cast for the Association. On the next day, the Machinists filed objec-
tions to the election, and on the following day, a charge, which alleged
that the Association was a company-dominated and supported organi-
zation, within the meaning of Section 8 (2) of the Act. The Regional
Director-never certified the Association, but on January 21, 1943,
sustained the objections and voided the election.
In the interim, as a result of the 8 (2) charge theretofore filed, the
Association on January 3, 1943, held a meeting off the respondent's
property, pursuant to notices published in a newspaper.8 At this
meeting a committee of 14, again headed by Hekelnkaemper and
Butcher, was elected to reorganize the Association in the event that the
Association was refused certification by the Regional Director. On
February 7, after the Regional Director had voided the election, this
committee held a meeting and, after deciding to form a new organiza-
tion, elected a subcommittee (including Butcher) to draft a new con-
stitution. On February 21, the committee and certain invited em-
ployees met, accepted the new draft prepared by the subcommittee,
thereby launched the Independent, voted to and did turn over the
records and funds of the Association to the Independent, and further
voted that the Independent should credit each transferee from the
Association with the 60 cents he had paid for his perpetual or life mem-
bership in the 9-year-old Association. There was no substantial dif-
ference in name or appearance between the two organizations, although
some minor changes were effected. On March 15,1943, the respondent
accepted, without proof or investigation, the Independent's claim that'
it represented a majority of the employees in and around the machine
shops, granted the Independent exclusive recognition, and entered into
the first of a series of contracts with it. According to Superintendent
Moorhead, he accepted the Independent's majority claim solely because
the Association, its predecessor, had polled a majority in the voided
consent election held 21/2 months earlier.
Upon the entire record, we are convinced and find that the Associa-
tion was a company-dominated and supported organization; that the,
Independent is its successor; and that the respondent violated the Act
e The Trial Examiner found that the respondent advised the Association of the National
War Labor Board's appioLal of the wage increases on this date. This finding is in error,
and is hereby reversed.
'The Trial Examiner found that the Machinists engaged in some campaigning on
company time and property, that the Association engaged in "similar" but more "extensive"
campaigning , and that the respondent thereby illegally assisted the Association as con-
trasted with the Machinists . This finding of illegal assistance is hereby reversed.
'All the Association 's previous meetings had been held in the plant , pursuant to notices
posted in the plant.
926 DECISIONS 'O'F NAfrIONiAL LABOR RELATIONS BOARD
with respect to each organization. Subsequent to the effective date
of the Act, the respondent continued to recognize, deal with, and
support, the Association, which it had theretofore sponsored. With
the advent of an outside union, which the respondent opposed through
the statements and condubt of various supervisory employees, it urged
its employees to revive the Association, and paid them for attending
the revival meeting. After signing a consent-election agreement with
the Machinists, but before the election, the respondent enhanced the
Association's prestige by attributing to it a wage request not pre-
viously made by it, and thereby rendered valuable support to the
Association during the crucial election campaign. When the Machin-
ists filed an 8 (2) charge with respect to the Association, the respond-
ent's failure to disestablish the Association enabled its successor, the
Independent, to retain the benefits of the illegal domination and
support accorded the Association. In sharp contract to the treatment
accorded the Machinists since November 1942, the respondent gave
powerful support to the Independent by entering into an exclusive-
recognition contract with it solely on the strength of the consent
election in which its predecessor, the Association, had participated,
and with full knowledge that the election hli,d been set aside by the
Regional Director and that the respondent was charged with having
violated the Act with respect to the Association. CAt no time after
the effective date of the Act did the respondent take any steps to
free its employees from the effects of its long-standing domination
and support of the Association and of its successor, the Independent.
The respondent contends, in effect, that no unfair labor practice
findings should be made with respect to the Association : (1) because
of a representation made to the respondent by a Board agent, after
having conducted an investigation, that the Association was a "bona
fide organization"; and (2) because of the consent election, in which
the Board and the Machinists permitted the Association's name to
appear on the ballot. As to the first ground, the record shows that,
at the time the representation was made, no charge of unfair labor
practices had been filed with respect to the Association, and the Board
therefore lacked authority to investigate any possible unfair labor
practices with respect to it; 0 that the purpose of the investigation
was solely to determine whether or not the Association was then in
existence and had an interest in the requested election;10 and that
0 Section 10 (b) of the Act empowers the Board to institute a proceeding only after
the commission of an unfair labor practice has been "charged "
10 The Board normally includes on the ballot the names of all existing labor organizations
having a substantial interest in the election , unless it duly \determines , in a proceeding under
Section 10 of the Act , that such organizations contravene the Act . See Matter of Standard
Oil Company of New Jersey , 8 N. L R B. 936, where the Board denied the request of the
petitioning unions to omit the name of the inside union from the ballot on the ground
that it was company dominated „ and pointed out that the way to raise the issue was by
filing an unfair labor practice charge
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 927
the representation did not purport to pass upon the legality of the
Association under the Act or to exonerate the respondent of any unfair
labor practices with respect to it. Nor did the respondent change its
position in reliance on any asserted representation of the legality of
the Association, as is essential to create a binding estoppel as a matter
of law. As to the second ground, the action of the Board's agents
in putting the Association on the ballot in the consent election was
in no sense a representation of the Association's legality.'1 It is
true that where, with full knowledge of all the unfair labor practices
involved, the Board's agents approve an agreement of all the interested
parties to settle an unfair labor practice controversy, either by a test
of strength at a Board election or otherwise, we generally give effect
to such a settlement as a matter of administrative practice.' How-
ever, there is no evidence that the consent election in which the Asso-
ciation participated in the instant case was intended by the parties or
was approved by the Board agents as a settlement of the respondent's
prior unfair labor practices.13 Indeed, it does not appear that the
Board's agents knew of the full nature and extent of the respondent's
unfair labor practices at the time of the consent-election agreement.
Moreover, our administrative practice is limited to cases in which the
employer himself abides by the spirit and purpose of the settlement
agreement and discontinues all further unfair labor practices. Here,
the respondent, with knowledge of the Machinist's majority represen-
tation claim, further assisted both the Association and its successor,
the Independent, after the consent-election agreement.14
The respondent also argues that the Machinists' conduct in failing
to file an 8 (2) charge until after it had lost the election should pre-
clude it from thereafter attacking the validity of the Association
under the Act. The Act, however, is not concerned with the private
rights of the Machinists, and the actions of that organization cannot
operate to relieve the Board of its responsibility for preventing unfair
labor practices and enforcing the public policy declared in the Act.15
11 See preceding footnote See, also, Matter of Wilson & Company, Inc, 31 N L R B
440, enforced, Watson & Company, Inc v. N. L. R B, 126 F. (2d) 114 (C C. A 7), cert.
den , 316 U. S 699, where the Board rejected the defense that it had vouched for the
legality of the inside union by permitting it to participate with the charging union in an
election held pursuant to Section 9 of the _Act, and stated that subsequent unfair labor
practice charges with respect to the inside union "required" it to proceed, despite the
majority obtained by the inside union at the election.
12 See, for example, Matter of American Baheries Company, 51 N L R B 937,
Matter of Wickwire Brothels, 16 N. L. R. B. 316, Matter of hope 1l ebbing Company.
14 N. L.R B 55.
13 See, Matter of Standard Oil Company, an Ohio Corporation, 47 N. L R B 517:
Matter of flicks Body Company, 33 N L R B 858
14 See, for example, Matter of Iloudaalle-Hershey Corporation and Houde Engineering
Corporation, 42 N L R B 71-3; platter of The Wallace Corporation, 50 N L R B 138.
16 See Matter of Wilson d Company, Inc, 31 N L R B 440, enf'd , Wilson & Company,
Inc v N L R B., 126 F. (2d) 114 (C C A 7), cert den., 316 U. S 699. Accordingly,
we approve the Trial Examiner's ruling that the respondent's claim, to the effect that the
928 DECISIONS OF NATIIONiAL LABOR RELATIONS BOARD
The Act and our Rules and Regulations permit any person or labor
organization to file a charge. Moreover, to refuse to take cognizance
of charges filed after an election, in the exercise of our administrative.
discretion, would discourage unions from utilizing the Board's election
machinery wherever a company-dominated or supported organization
was involved, and would thus tend to impede and delay rather than
encourage collective bargaining. Finally, no factual inference as to
the validity of the Association can be drawn from the Machinists'
conduct in this case, as might have been done had the Machinists silently
permitted the Association to obtain certification and recognition by
the respondent."' '
The respondent also contends, in effect, that this case depends on
the testimony of Reeves, whom it alleges to be unworthy of credit.
In this connection, we observe that our decision rests on Reeves'
undisputed testimony, the respondent's admissions, and the testimon$
of other witnesses whose credibility the respondent does not' contest.
Finally, the respondent contends that it was not accorded a fair
hearing because of alleged erroneous rulings made by the Trial Exam-
iner at the hearing. Specifically, the respondent asserts that the
amended complaint was defective in certain respects, and that the Trial
Examiner "erred" both in ruling on its motion to make the amended
complaint more definite and certain and in admitting and rejecting
evidence. However, the respondent nowhere indicates in what respects
it has been prejudiced by these alleged errors. Moreover, the Trial
Examiner stated at the opening of the hearing that the respondent
might apply for appropriate relief if surprised during the hearing.
The respondent made no such application. In addition, the respondent
has made no motion for leave to adduce additional evidence. Upon
the entire record, we find no merit in the foregoing contentions 17
We find, upon the entire record, that the respondent is responsible
for the existence of conditions and circumstances which deprived its
employees of that complete and unhampered freedom of choice which
the Act contemplates; that the respondent dominated and interfered
with the administration of and contributed support to the Association;
and that the respondent dominated and interfered with the formation
Machinists' charges were filed in bad faith, is irrelevant to the issue of the respondent's
domination of the Association.
19 See Warehousemen's Union v. N. L. R. B, 121 F. (2d) 84 (App. D. C.), cert den., 314
U. S. 674 , modifying and enforcing Matter of McKesson & Robbins Co., 19 N. L. R. B. 778;
N L. R. B . v. Sun Shnpbuilding Company, 135, F. (2d) 15 (C. C A 3), setting aside 38
N. L. R. B . 234. See also Matter of Interlake Iron Coiporatcon , 33 N. L. R. B. 613,
modified and enforced , 131 F. (2d) 129 (C. C. A 7).
17 N. L R B . v. Remington -Rand, Inc., 94 F. ( 2d) 862 (C. C A 2), modifying and
enforcing 2 N. L R . B. 626, cert . den, 304 U S . 576; N. L . R. B. V. Pacific Gas & Electric
Co., 118 F. (2d) 780 (C. C. A. 9), modifying and enforcing 13 N L. R. B. 268; Swift & Co. v.
N L. R. B., 106 F. ( 2d) 87 (C. C. A 10), modifying and enforcing 7 N. L. R . B. 269;
Valley Mould & Iron Corp . v. N. L. R. B, 116 F. (2d) 760 (C. C. A. 7), cert. den., 313
U. S. 590 , enforcing 20 N. L . R. B. 211.
f
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 929
and administration of and contributed support to its successor, the
Independent. We further find that by such acts, and by the state-
ments of Production Manager Nass, Foremen Bishop and Cooley,
and Subforemen Willis and Rindom, the' respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
ORDER
Upon the foregoing findings of fact and the, entire record in the
case, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Locomotive Finished Material Company, Atchison,
Kansas, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or
contributing support to, The Machine Shop Employees' Associa-
tion of The Locomotive Finished Material Company or Machine
Shop Employees' Association of Atchison, and dominating or inter-
fering with the formation or administration of, or contributing
support to, any other labor organization of its employees;
(b) Giving effect to any contract with Machine Shop Employees'
Association of Atchison, or with The Machine Shop Employees'
Association of The Locomotive Finished Material Company, con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment or other conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
its 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
concerted activities, for the purposes 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) Withhold recognition from The Machine Shop Employees'
Association of The Locomotive Finished Material Company as the
representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment;
(b) Withdraw recognition from and completely disestablish Ma-
chine Shop Employees' Association of Atchison as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
a
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post immediately in conspicuous places throughout its plants,
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating: (1) that
the respondent will not engage in the conduct from which it is or-
dered to cease and desist in paragraphs 1 (a), (b), and (c)' of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent : (1) violated Section 8 (1) of the Act by requiring
its employees to reveal their union affiliation as a prerequisite to secur-
ing employment, any by distributing bonuses among its employees and
paying for a party for the benefit of a large number of its employees,
which bonuses and party were given at such a time as to dissuade the
employees from continuing their membership in and activities in be-
half of the Machinists and Moulders; and (2) violated Section 8 (3) of
the Act with respect to Nelea Woods, be, and it hereby is, dismissed.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Robert S Fousek and Mr. John Weiss, for the Board.
Brown, Douglas & Biou;m., by Mr. R A. Brown, Jr., of St Joseph, Mo, and
lVaggener, May, Waggener & Hope, of Atchison, Kans., for the respondent.
O'Keefe & Root, by Mr. Maurice P O'Keefe, of Atchison, Kans, for the Inde-
pendent.
STATEMENT OF THE CASE
Upon amended charges duly filed by International Association of Machinists,
affiliated with the A. F of L, herein called the Machinists, and International
Moulders & Foundry Workers Union of North America, Local No 418, affiliated
with the A. F. of L, herein called the Moulders, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Seventeenth
Region (Kansas City, Missouri), issued its amended complaint dated April 13,
1943, against The Locomotive Finished Material Company, Atchison, Kansas,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within'the'mean-
ing of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act' Copies of the amended
complaint, accompanied by notice of hearing,, were duly served upon the re-
spondent, the Machinists, the Moulders, and the Machine Shop Employees
Association of Atchison.
The complaint as amended alleged in substance that: (1) since July 5, 1935,
the respondent dominated and interfered with the formation and administration
i On February 4, 1943, the Board ordered that the cases be consolidated for the purpose
of hearing
TI4E LOCOMOTIVE FINISHED MATERIAL COMPANY 931
of The ,Machine Shop Employees' Association of,The Locomotive Finished Ma-
terial Company, herein called the Association, and contributed support to it;
(2) that between January 3 and February 21, 1943, The Machine Shop Em-
ployees' Association of The Locomotive Finished Material Company was reor-
ganized and a successor thereto was created, which successor is known as
Machine Shop Employees' Association of Atchison, and further alleging that
the two organizations are in all respects in fact and in law the same within
the meaning of Section 8 (^) of the Act, and that the latter association is
subject to all the legal infirmities of the former; (3) that on or about Februaiy
27, 1943, the respondent terminated the employment of Nelea Woods, because
of his activity in behalf of the Moulders, and because of his refusal to par-
ticipate in activity directed against the Moulders; and (4) that the respondent
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, in that it uttered statements and
speeches prejudicial to and disparaging of the Machinists and Moulders;
threatened the aforesaid employees who sought to affiliate, or who did affiliate,
with the Machinists or the Moulders with retaliatory measures ; required its
employees to reveal their union affiliations as a prerequisite to securing em-
ployment; sought to dissuade its employees from affiliating with organizations
other than the Association ; granted special benefits to the Association ; dis-
tributed bonuses among, its employees and paid for a party to dissuade the
employees from continuing their membership in the Machinists and the Mould-
ers; and permitted The Machine Shop Employees' Association of The Loco-
motive Finished Material Company to hold meetings on company time and
property.
On April 27 the respondent filed a motion to make the amended complaint more
definite and certain On April 27 the respondent filed its answer admitting that
it was engaged in interstate commerce and denying that it had engaged in any
of the unfair labor practices alleged in the amended complaint. Pursuant to
notice, a hearing was held at Atchison, Kansas, from April 27 to April 29, 1943,
before Bernard Cushman, the 'trial Examiner duly designated by the Chief Trial
Examiner. On April 27, 1943, the Machine Shop Employees' Association of
Atchison, herein called the Independent, filed a written motion to intervene,
which was granted by the undersigned. The Independent also filed an answer
on April 27, denying any of the allegations of the complaint which had reference
to it.
On April 29. 1943, at the request of the respondent. the hearing was adjourned
until May 6, 1943, because of the unavailability of H E' Muchnic, president (if
the respondent, a material witness. The hearing was resumed on May 6, 1943,
and concluded on that day. The Board, the respondent, and the Independent
were represented by counsel and participated in the hearing
With respect to the motion filed by the respondent to make the amended com-
plaint more definite and certain, the Board was required to state the names of
any officials of the respondent or supervisors who were alleged generally to have
committed violations of the Act and also to state the nature of the special benefits
alleged to have been granted to The Machine Shop Employees' Association of The
Locomotive Finished Material Company In all other respects the motion to
make more definite and certain was- denied. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties At the conclusion of the Board's case, the
respondent and the Independent moved that the complaint be dismissed as to
each because of the failure of the evidence adduced by the Board to support the
charge. The motion was denied. All parties participated in oral argument held
549875-44-vol 52--G0
932 DECISIONS OF NATIOA'IAL LABOR RELATIONS BOARD
before the undersigned. 'At the close of the hearing a motion by the Board to
conform the'pleadings to the proof with respect to names, dates, and typographical
errors was granted over the general objection of counsel for the Independent.
The undersigned granted the parties ten (10) days from the close of the hearing
within which to file briefs. Briefs have been, received from the respondent and
the Independent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, The Locomotive Finished Material Company, is a Kansas
corporation with its main office and place of business in Atchison, Kansas, where
it employs approximately 700 employees. It is engaged principally in the business
of manufacturing supplies for the prosecution of the war and supplies essential
to the war effort of the United States Government. It admits that it is engaged
in interstate commerce, and that within the period of a year it has purchased
materials valued at $1,756,47728, of which $1,275,202.51 in value were purchased
outside the State of Kansas, and that within the same period it has shipped
materials valued at $5,984,520.58, of which $4,482,405.91 in value were shipped to
points outside the State of Kansas.
II. THE ORGANIZATIONS INVOLVED
International Moulders & Foundry Workers Union of North America, Local No.
418, is a labor organization affiliated with the American Federation of Labor.. It
admits to membership employees of the respondent.
International Association of Machinists is a labor organization affiliated with
the American Federation of Labor. It admits to membership employees of the
respondent.
The Machine Shop Employees' Association of The Locomotive Finished Material
Company is an unaffiliated labor organization admitting to membership employees
of the respondent.
Machine Shop Employees' Association of Atchison is an unaffiliated labor
organization admitting to membership only employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A The formation of the Association; events prior to July 5, 1935
On February 21, 1934, Foundry Superintendent Frank Stanley met with 12
to 15 men, representing all departments of the respondent company, in the
foundry office. According to the minutes of The Machine Shop Employees'
Association of The Locomotive Finished Material Company the meeting took
place at the suggestion of Stanley. There were present Stanley and Arthur H.
Moorehead, general superintendent of the respondent. Stanley and Moorehead
stated that the respondent desired that the employees form a labor organization.
Thereafter, a proposed plan of organization was formulated by employees Harold
Spilman, Luther Ringo, Ralph Compton, Archie Turpen, Harold Willis, Monroe
Brown, Matt. Funk, Tom McNamara, and E C. "Doc." Watson. The proposed
plan was presented to Moorehead on April 6, and on April 11 Moorehead informed
the committee which had drafted the proposed plan, that the plan, with slight
changes, was satisfactory to the coinpany. On April 13, a notice was posted on the
shop time clock to the effect that an election of officers for the newly formed associ-
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 933
ation would be held on April 14, in the shop cafeteria. On April 14, an employee
representative group of nine members was elected. Those elected were Luther
Ringo, Harold Spilman, "Doe" Watson, Ralph Compton, Tom McNamara, Matt.
Funk, Harold Willis, Archie Turpen, and William Funke. A grievance committee
composed of I:uther Ringo, Harold Spilman, and "Doc" Watson was elected by
the group. Ringo was elected chairman of the group and E. C. "Doc" Watson
secretary-treasurer. The group subsequently was designated as the Employees
Representative Group.
On April 17, at a meeting held over the shop ,office, attended by the Employees
Representative Group, herein called the E R G, and Moorehead and Stanley,
the proposed form of the Association and a contract with the company was
discussed. On April 19, a written agreement was executed effective as of
April 20, 1934. By this time the constitution and bylaws of the Association
had been formulated and accepted. The constitution and bylaws provided, enter
elia, that the Association would be governed by nine men elected from the mem-
bers, known as the Employees Representative Group and that the aforesaid group,
should elect a chairman and secretary, and a grievance committee of three.
It was provided that "Upon 'termination of his services with the Company,
an Employee Representative shall automatically cease to hold office." The bylaws
further provided that notices of election should be posted in the shop ; that
employee representatives, when attending meetings of the Employee Representa-
tive Group during the regular working hours of any of these representatives,
should receive regular pay for time so spent. The bylaws further provided, "The
Employee Representative Group must prepare and distribute to the Employees,
or post conspicuously in the Shop, reports of its proceedings, and the expense
thereof shall be borne by the Company." It was further provided that "The
Company shall provide, at its expense, suitable places for the meetings of the
Employee Representative Group." There was a provision for arbitration in
case of disagreement on any matter between the company and the E. R. G
It was also provided that there should be no discrimination against employee
representatives.'
The original contract was effective to July 21, 1934. The contract provided,
among other things, for a wage scale, overtime pay and hours of duty, with
some provision with reference to seniority. Although the term of the agreement
was to run for 6 months, the management reserved the right at the end of each
30-day period to reopen the agreement, "but will endeavor to maintain it for
the full period, providing conditions permit." The dues of the Association were
60 cents, 50 cents initiation fee and 10 cents for the purchase of the book of
bylaws. The payment of the 60 cents gave a continued membership in the
Association.
On April 30, 1934, an election was held by the National Labor Board, limited
to employees in the following groups: machinists, (general and maintenance)
machine operators, machinist specialists, machine helpers, and machinist ap-
2 The record falls to show that all of these provisions were complied with by the com-
pany. In connection with the furnishing of meeting places by the company, virtually
all of the meetings of the Association were held in the company cafeteria. The cafeteria
was leased to a concessionaire. While it was the uncontradicted testimony of George
Wood, that during his tenure as treasurer, he paid $1 to Thompson, concessionaire, for
every meeting held in the cafeteria, E. C. "Doc" Watson, secretary-treasurer until April 14,
1936, testified that the only payment which was made by him as treasurer for rent of a
meeting place was that at the Byram Hotel. The financial records kept by Watson fail to
show that any payment was made to a concessionaire for the use of the cafeteria. In
,the absence of direct testimony from Watson that such payment was made, _the under-
signed infers and finds that the cafeteria of the company was used, at least until April 14,
1936, at no expense to the Association.
934 DECISi1ONS OF NATIONAL LABOR RELATIONS BOARD
prentices. There appeared on the ballot the Association and the Machinists-
The election was won by the Association. Sixty-two votes were cast for the
Association, 18 for the Machinists.
On July 21, 1934, a contract was executed by the Association and the Company
not materially different from that of April 20.
B. Events subsequent to July 5, 1935
After the passage of the National Labor Relations Act, effective July a, 1935,
the Association continued to,function without substantial change. Riders, con-
tinuing in force the agreement of July 21, 1934, were executed at 6-months inter-
vals and substantially no change was made in the contract at any time up to, and
including, December 31, 1942. During this period Association elections were held
on company time and company property It is undenied that it was the practice
of the Association in conducting elections to have various individuals bring the
ballots to employees who were at work, and to have them mark their ballots
at that time, and turn them over to the individual distributing these ballots.
From April 14, 1936, until December 29, 1939, so far as the minutes of the
meetings disclose, the only meetings held were for the purpose of conducting
elections. Thereafter there was an increased apathy evidenced among the mem-
bership of the Association with reference to its functions. The minutes of July
11, 1940, read as follows :
The Meeting was held and there was a lot of nonsense and idle talk about
a Free Beer drink to get all of the Members together before we Discussed
a New Contract.
This Discussted (sic) the Commettee ( sic) and as a result the Commettee
(sic) got togather (sic) and agreed that the Contract in force was alright
(sic) and effective.
The Commettee (sic) agreed amonge (sic) themselves to sign and Pass the
agreement on to Moorhead to be signed.
The Contract was signed by the Commettee ( sic) and Moorhead July 15,
1940, and Nothing More (sic) was heard from the Members.
The minutes further recount that on October 20, 1940, a notice was posted for
a meeting to be held on October 25, for the purpose of conducting, an election.
The minutes of October 25 state :
Now this Meeting was a total Flop, 3 Men were there No election was held.
It was agreed among the Commettee (sic) that these commetteemen (sic)
were to stay in office `as' Reelected.
Ray Stewart, Chairman; Fred Reeves, H. Spillman, Dick Boggs, H. Daven-
port.
In general, the minutes show a continuing lack of interest on the part of mem-
bership in the affairs of the Association, and the minutes and corroborative testi-
mony show that from March 30, 1941, to December 7, 1942, there were no general
membership meetings.
In the latter part of October or the early part of November, 1942, the Interna-
tional Association of Machinists began an organizational drive among the em-
ployees of the respondent. According to the uncontradicted testimony of Fred
Reeves, then an employee of the respondent, on approximately the 1st of Novem-
ber, 1942, Reeves was working on a navy casting. He was standing on a platform-
when Foreman Frank Bishop 3 mounted the platform and said, "Well, I hear
s The respondent admitted that Bishop was a foreman with power to hire and fire.
THE LOCOMOTIVE FINQSHED MATERIAL COMPANY 935
you're going to have another union meeting. What is it going to be-a C. I. O.
or A. F. of L?" Reeves replied, "The boys told me it's going to be the A. F. of L."
Bishop then said, "It looks like they have to stir up something like that just every
once in a while It don't seem like they're satisfied." Reeves was active in
behalf of the Machinists at that time. Bishop did not testify, and no showing
was made that he was unavailable as a witness. The undersigned finds that the
statements were made as testified to by Reeves, and that the import of the state-
ments made by Bishop was derogatory to the A. F of L and indicated a dislike
on the part of the respondent for union activities by that organization. It is
found that the statements by Bishop are violative of Section 8 (1) of the Act.
Reeves further testified, without contradiction, that William Nass,4 on Novem-
ber 14, 1942, came over to Reeves and said, "Well, Fred, you got yourself in
bad" Reeves replied, "Bill, what do you mean?" Nass then said, "We heard
you're the head of the A F. of L." On November 17 or 18, according to Reeves,
sass came over to Reeves and inquired as to the date of the next meeting of the
A. F. of L.
On or about November 14, Luther Ri idon, night foreman df the chipping room,
as hereinafter found, attempted to have Nelea Woods, a colored employee, sign
a petition withdrawing his membership from the Moulders."
On November 28, counsel for the respondent, R A Brown, Jr, wrote to the
representative of the Machinists in reply to a letter dated November 21.° Brown
stated that the respondent was willing to bargain with any proper representa-
tive of its employees, and added, "It has, however, at this time no satisfactory
means of determining that the organizations, of which you gentlemen are mem-
bers, are the proper representatives of its employees." Brown stated further that
it was the opinion of the respondent that the question could be best determined
by means of a consent election held under the auspices of the Board.
Reeves testified that Farris Cooley, a foreman of the respondent with power to
hire and fire, in the latter part of November during the course of a conversation
initiated by Reeves with reference to work which Reeves was performing at that
time, stated, "Well, I don't want you to bother any of my boys that's working for
me. They are all good boys, and I don't want them to be signed up for the A. F.
of L." Cooley admitted discussing the A. F. of L. on several occasions with
Reeves, with whom he was friendly. Cooley admitted telling Reeves not to
come over to bother his men, but denied saying to Reeves that he "should not
campaign for the A. F of L " He admitted coming over to Reeves' machine and
discussing some work with him on one occasion, and mentioning the A. F. of L,
but stated further that he did not remember what was said on that occasion.
Cooley's testimony was vague and he had no memory as to what, in fact, was
said on the occasion mentioned by Reeves. The greater portion of Reeves' testi-
4Nass was the iespondent's production manager and had under his direction 6 clerks.
According to Moorehead, the duties of Nass "are to supervise the scheduling of the
different operations over the plant, or rather . He has about 5 or 6 clerks working
for him but he comes in contact with all of the workmen. all of the foremen, because he
has to get the work out on such and such a day And he has production meetings eveiy
day with these men in order to meet the delivery dates." The respondent contends that
there is no responsibility on its part for any statements made by Nass because lie is not
a supervisory employee within the meaning of the Act So far as the record discloses,
Nass had no power to line or die The undersigned finds that Nass was an employee
whose position in the company was such that any remarks made by him would be normally
considered as reflecting the point of view of the respondent -See Intel national Association
of Machinists v N L R B., 311 TJ S 72.
° See Section III-E , infra
° The Machinists had previously requested recoenition on November 21 as the collective
bargaining representative of the group that organization claimed to represent.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony was corroborated by other testimony or other evidened, or was uncontra-
dicted. Reeves, however, on cross-examination, denied any solicitation on behalf
of the A. F. of L. during working hours, with the exception of one occasion.
Cooley testified that he had observed Reeves soliciting on behalf of the A. F. of L.
in his machine shop! George Wood and Glenn Allen testified that they had seen
Reeves soliciting during working hours on behalf of the A. F. of L. The testimony
of Wood, Allen, and Cooley in this respect is credited. It is-.found that Reeves
solcited to an extent greater than that indicated in his testimony. While Reeves
was generally a credible witness, his recollection on this point may have been
colored by his interest in the outcome of the proceeding. Reeves also displayed a
poor recollection as to the dates of the Christmas bonus issued by the respondent.
He further testified at first that Willis voted at the election, but subsequently
testified that he did not see Willis vote at the polls. The undersigned does not
consider that Reeves' testimony in other respects is seriously affected by his
statement as to the extent of his solicitation, or by'either his mistaken recollection
as to the dates on which the bonus had been paid in previous years or his change
in his version as to whether or not Willis voted at the polls. Where uncontradicted
or substantially corroborated by other testimony or subsequent events, Reeves' tes-
timony is credited. Under all the cii cumstanees, in the absence of a specific denial
by Cooley, and in view of Cooley's lack of memory as to what was said on this
occasion, Reeves' version is credited.
Reeves testified that about December 1, Harold Willis, an assistant foreman
of the respondent," stated to Reeves that the supervisory officials of the company
were keeping Reeves under surveillance, and were of the opinion that he was the
leader of the A. F. of L. Willis testified and the undersigned finds, that Muchnic
had mentioned the subject of Reeves' campaigning to him and that Foreman
Bishop also stated to Willis that he had heard that Reeves pad been doing some
campaigning, and gave orders to Willis to see to it that Reeves stayed at his
machine. Muchnic subsequently testified that the fact that Reeves had been
involved in some "i gitation" had come to his attention Willis testified that he had
spoken to Reeves subsequent to his conversation with Bishop and had given Reeves
orders to stay at his machine, but that he did not remember what else was said. It
is found that the conversation between Willis and Reeves occurred substantially as
testified to by Reeves.
Reeves testified further that on December 4, 'Muchnic asked Reeves to come
to his office ; that when Reeves was in Muchnic's office, Muchnic said to him that
he had heaid that Reeves was the "head instigator of the A F. of L."; that
Muchnic then told him about the good that he, (Muchnic) had been doing for
the boys and how he had taken care, of them" ; that Muchnic asked him how
many men had been signed up ; and he further advised him that the older men,
including himself, should talk to the younger men and see what could be done
about it. According to Reeves, he refused to do so. '
Muchnic denied that he had had such a conversation with Reeves. He ad-
mitted that he had called Reeves to his office. Muchnic said that it had been
reported to him by the foremen that there was a lot of "agitation", and that
Reeves had been partly responsible for it. According to Muchnic, he called
4 Cooley was the foreman in the G. & L. shop, which is in a different building from
that in which Reeves worked Reeves, on occasion, found it necessary to come to the
G. & L shop in order to get some tools
8 Willis, assistant foreman, has 65 or 70 men under his direction, is paid monthly, and
is the only one in charge of the machinists during the evening. He has no right to hire
or fire. Willis has, however, power to give permission to men to leave work prior to the
scheduled time. Upon the entire record, the undersigned finds that Willis is an employee
whose, activities are attributable to the respondent.
THE LOCOMOTIVE- FINISHED MATERIAL COMPANY 937
Reeves in and asked him what it was all about. Muchnic testified that Reeves
said that the foremen had not treated him right, and that he replied to Reeves
that Reeves had been with the company for many years , and, since the country
was at war, it was Reeves' patriotic duty "to see that things run smoothly and
not quarrel with men." While the matter is not without doubt in view of Muchnic's
expressed concern over Reeves' campaigning activity, for the reasons previously
mentioned in the discussion of the nature of Reeves' testimony, Reeves' version
of this conversation, in the absence of corroboration, is not credited as against
the specific denial of Muchnic.
According to the testimony of Alex York, which the undersigned credits, York
suggested to Ray Stewart,° the chairman of the Association, that a meeting be
held with the management to request an increase in wages. About December 4, 1942,
some 22 of the older employees, most of whom were closely associated with the
Association, attended a meeting in Moorehead's office at which both Moorehead
and Muchnic were present, representing the company. At this meeting, Stewart
asked that additional pay for night work be granted. Moorehead said that that
would be taken care of. It was also requested by the employees that piecework
rates be increased, and Moorehead said that that request would be adjusted. Ac-
cording to the testimony of Alex York, someone present mentioned the A. F. of L.
and Muchnic replied that that was entirely up to the men ; that he could not dis-
cuss the matter. York further testified that Muchnic stated that he thought that
the committee had been lax in its duties in allowing the interest in the Association
to die down as it had. York was corroborated in this respect by Charles White.
Neither Stewart nor Moorehead, who testified concerning the events that occurred
on December 4 at the conference between the company and the committee,
specifically denied that Muchnic had chided the committee for being lax 'in the
performance of their duties. Both York and White were members of the
Association, and later became members of the Independent. Both York and
White were frank and credible witnesses. Their testimony as to the happenings-
at the December 4 conference is credited.
By December 4, petitions had been filed by the Machinists and the Moulders
asking that an election be held in units requested by the petitions.
On the evening of December 7, 1942, at about 7: 30, a meeting of the Association
was held in the company cafeteria. Reeves testified that he noticed the men on
the night shift all leaving to go to the meeting, and he asked Harold Willis,
assistant foreman in charge of the night shift, if he had to punch out to attend
the meeting. Willis replied in the negative. Reeves testified that he spent
21/2 hours at the meeting. He so designated the time spent on his time card,
and was paid for the time so spent at the meeting. The respondent in its brief
admits that all employees who attended the meeting were paid for their time
so spent. Willis did not deny the testimony of Reeves, and Reeves' testimony in
this respect is credited by the undersigned.
At this meeting of December 7, an election was conducted and Jack Hekeln-
kaelnper was elected chairman, and Lynn Butcher secretary-treasurer of the
Association. A new employee representative group was elected. This was the
first election of an employee representative group since December 1939. During
the course of the meeting, Hekelnkaemper personally solicited memberships, and
some 40 or 50 signatures were obtained. The meeting was open to all employees
of the company.
0 Stewart and several other witnesses denied, in the language of legal conclusion, the
allegations of the complaint. In the opinion of the undersigned, such testimony is of
slight probative significance when weighed against specific, credible, and undenied testi-
mony of other -Board witnesses.
'938 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 8, an oral agreement was reached with the respondent for the
holding of a consent election with the Machinists and the Association on one
ballot, and the Moulders and the Association on the other. By December 14, the
consent election agreement had been signed by all parties concerned. On or
about December 14, Moorehead informed the representatives of the Association
that the wage increases requested by then' at the conference of December 4 had
been approved by the War Labor Board, and were granted. The evidence indi-
cates that prior to the election there was campaigning by all of the competing
unions. The record shows that there was some campaigning on company time
and property by the Machinists and the Moulders, and' similar campaigning by
the Association. Pamphlets and placards were distributed by the Association
,in the plant. There was testimony to the effect that pamphlets issued by the
competing unions were found on the floor of the plant. On December 19, 1942,
the Association on company time and property distributed pamphlets to every
mail in both shops of the company. According, to the testimony of Stewart, he,
°George Wood and Lynn Butcher openly distributed a card to every lean employed
by the company and working at that time. On one side of the card was printed :
BEWARE !-a Neutral Vote
Lets A. F. of L. win.
,On the other side of the card was the following:
Don't Lose Your Vote !-
,Elect the L. F. M. ASS'N
The record fails to show solicitation or electioneering so extensive on the part
of the Moulders or the Machinists. Distribution of such cards on so wide a scale
-could not have gone unnoticed by supervisors of the company. The undersigned
infers and finds that such solicitation came to the attention of the respondent.
On or about December 19, colored employees of the company held a Christmas
party. The committee that arranged for the holding of the pasty included Silas
•Cluke, George Harper, Beverly Harrison, and David Carey, all of whom were
individuals opposed to the A. F. of L. As hereinafter found, Carey was the
originator and circulator of a petition for the withdrawal of membership from
the A. F. of L, circulated with the knowledge of the respondent and with the
assistance of Night Foreman Luther Rindom. In previous years colored em-
ployees had had smokers at or about this time. On all occasions some assistance,
-either financial or otherwise, had been extended to those employees by, Muchnic.
'On this occasion it was determined that, instead of a smoker, a Christmas party
would be held by the colored employees which could be attended by the wives of
the employees. At about the 16th or 17th of December, Muchnic gave the coin-
mittee $50 to be used for the purposes of holding the Christmas party. The
Board contended that the gift of $50 to the colored employees at this time, made
to a committee composed of employees who were hostile to the Moulders, con-
stituted the granting of a special benefit, violative of the purposes of the Act.
'The record shows, however, that Muchnic had agreed early in the fall to grant
assistance to the colored employees in the holding of any party which they should
determine to have While the circumstances are suspicious, on the entire record
the undersigned does not find that the $50 gift was intended to have the effect of
influencing the votes of the colored employees at the coining election.
On December 21, the election was held. The results of the election were as
follows : in the machine shop-172 for the Association ; 70 for the Machinists ;
1 for neither. In the foundry-135 yes votes ; 185 no votes. The Moulders was
the only organization on the ballot.
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 939
The Board introduced testimony showing that on or about December 19, Christ-
mas bonuses were distributed to the employees . It was the theory of the Board
that the bonuses were distributed at this time , 2 days prior to the election, in
order to influence employees' votes in the election. The record shows, however,
that at or about this time for 5 or 6 years preceding the holding of the election,
the respondent had adopted the custom of distributing Christmas bonuses.
Under these circumstances , the undersigned finds nothing in the distribution of
the bonuses that is violative of the Act.
On December 22, the Machinists filed objections to the election conducted in
the machine shop, and on December 24, the Moulders filed objections to the elec-
tion conducted in the foundry. On January 21, 1943, objections were sustained
by the Regional Director of the Seventeenth Region, and the results of both
elections were voided.
On December 22, the Machinists Bled a charge alleging that the Association
was an illegal organization within the meaning of Section 8 (2) of the Act.
C. The formation of the Independent
On January 3, 1943, a meeting of the Association was held at the Memorial
Hal110 At this meeting, Lynn Butcher, who had been elected secretary-treasurer
of the new committee, pointed out to the membership present that he had not
joined the Association, in fact, until December 16, and felt therefore that the
election was' illegal. Stewart, the former chairman of the Association, pre-
sided at the meeting. Butcher also pointed out that under the constitution and
bylaws, it was necessary to have been a member of the Association for a period
of one year before he could become a member of the E. R. G. It was, decided,
accordingly, to suspend, or do away with, the existing constitution and bylaws,
and a committee of-three was appointed by the chair as a nominating com-
mittee, to nominate 14 men to serve on a special committee, subject to a vote,
of membership . Under this procedure, a committee of 14 was selected. The
committee elected Butcher as president and Hekelnkaemper as secretary. Ac-
cording to the uncontradicted testimony of Butcher, the committee was elected
as a committee to hold office temporarily under a form of trusteeship for the
Association The life of the committee was to extend until 2 weeks subsequent
to a ruling by the National Labor Relations Board on the_ validity of the objec-
tions previously filed by the A. F of L. unions to the elections of December 21.
It was voted that George Wood, treasurer of the old Association, continue to,
act as treasurer, subject to any vote of the committee. On January 21, the
Regional Director, as previously stated, voided the results of the election.
On February 7, a meeting was held in Odd Fellows Hall. Butcher testified,
"at that meeting was the first time that any discussion of forming a new organ-
ization was brought about, that I remember of." Butcher testified that it was
decided that the constitution and bylaws of the Association were illegal and
unsound, and it was determined to form an entirely new organization A sub-
committee was appointed of Walter Fedderson, Matt. Funk, and Garrett Seegar
to assist Butcher in the drafting of a new set of constitution and bylaws On
February 21, a meeting was held at the Odd Fellows Hall and the new consti-
tution and bylaws were presented to the employees present, and accepted It
was voted that the treasury of the Association be transferred to the Inde-
10 Although ordinarily meetings of the Association were announced by notices ported
on the time clock , this meeting was announced by an advertisement in the Atchison Daily
Globe
940 DECISIONS OF NATIONAL' LABOR REILATIONS BOARD
pendent, and the sum of $78.77 was, in fact, turned over by Wood, treasurer of
the old Association, to C. E. "Doc"' Watson, treasurer of the Independent" It
was also voted that, in consideration of the aforesaid transfer of funds, members
of the Association who wished to become members of the Independent need pay
only the sum of 65 cents as initiation fee. Classification questionnaires were
subsequently distributed during the month of March by a committee of the
Independent, reading in part as follows :
ATTENTION, ! . . . Membership cards are now ready: Pay your
initiation fee now. (65¢ to former members or $1.25 to new ones)
The organization was called the Machine Shop Employees' Association of
Atchison. Several provisions of the constitution and bylaws of the Association,
considered objectionable by the membership, were omitted. These were the
provision that employee representatives should be paid by the company for
time spent on the Association's business ; the provision requiring that the com-
pany furnish bulletin boards for the use of the Association at the expense of
the company; the provision that the company should provide at its own expense
'suitable places for the meetings of the employee representative group. The new
constitution and bylaws provided for an employee representative group, but in-
creased the number of the persons to be elected to that group from 9 to 15. The
provision of the Association's constitution and bylaws requiring that an em-
ployee, in order to be eligible to become a representative, must have been in the
,employ of the company for at least one year, was changed to require six months
employment as a prerequisite for eligibility. The dues were increased, as
monthly dues of $1.00 and an initiation fee of $125 were assessed. The bylaws
were more detailed, but the' fundamental physical structure of the old Association
remaining in the employee representative group was retained.
On March 8, 1943, the following letter was sent to the company :
MARCH 8, 1943
Mr. H. E. MucHNIc Pres
The Locomotive Finished Material Co.
Atchison, Kansas.
DEAR MR. MucHNIc :
This Association now represents a majority of the employees working in
and about the Machine Shops of your Atchison, Kansas, plant.
We therefore request an opportunity to meet with you and discuss a
temporary agreement as a basis for negotiation of a bargaining contract
covering the wages, hours and working conditions of the employees in your
shops.
Please address your reply to the above box number.
Very Truly Yours,
THE MACHINE SHOP EMPLOYEES ASSN.
By LYNN BUTCHER, chairman E R. G.
On March 9, 1943, the Independent had printed and subsequently distributed
to its members the following membership card :
n Watson was the original secretary and treasurer of the Association.
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 941
Jan. Feb. Mch. Apr. May June July , Aug. Sept. Oct. Nov. Dec.
Dues
MEMBER
MACHINE SHOP EMPLOYEES ASSOCIATION Book
Name ------------------------ No. ----------------
1943 1943
1 2 3 4 5 6 7 8 9 10 11 12
By letter dated March 12, 1943, Muchnic replied to the letter of March 8 as
follows :
MACHINE SHOP EMPLOYEES ASSOCIATION,
Post Office Box 75
Atchison , Kansas
Attention Mr. Lynn Butcher, Chairman
MARCH 12, 1943
GENTLEMEN :
We have your letter of March 8 requesting an opportunity to meet with us and
discuss a temporary agreement as a basis for negotiation.
We wish to advise that we shall be glad to meet with your committee at any
time the first of next'week either Mr. Moorhead or myself, will meet with you.
Yours very truly,
THE LOCOMOTIVE FINISHED MATERIAL CO.
H. E. MUCHNIC , President.
On March 15, the company and the Independent entered into a temporary
agreement, recognizing the Independent as the bargaining agent for all of the
employees of the company, and "accepts the Grievance Clause of the Constitution
and By-Laws of the Association as a basis of settling disputes, arising in the
shops of said Company, from the date of this agreement." Provision was made
for the immediate setting up of a board of arbitration and it was agreed that
adjustments in wages would be made retroactive. The agreement was to remain
in force for 30 days. On March 17, a rider was executed providing for meetings
of a board of arbitration On April 13, 1943, an agreement was executed extending
the temporary agreement of March 15, for 15 days
At no time did the Independent furnish written evidence of its membership in
support of its majority claim. Moorehead testified that he accepted without
further investigation an oral statement by Butcher that the Independent repre-
rented a majority of the employees.
CONCLUSIONS
1. The Association
While the events occurring prior to July 5, 1935, the effective date of the Act,
cannot constitute unfair labor practices, they are significant as viewed in con-
nection with the events occurring subsequent to July 5, 1935. The 'record shows
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Association was formed at the suggestion of Stanley. the superintendent
of the foundry, and Moorehead, the general superintendent of the Company
Moorehead participated in the formulation of the constitution and bylaws of the
Association, and insisted upon changes in those documents before he would state
that they were acceptable to the company The provision of the bylaws for the
payment of wages to employes representatives while engaged in the Association's
business , the provision that the respondent should provide meeting places at the
respondent's expense, the provision that reports of the proceedings of the E R. G.
should be distributed to employees or posted in the shop, at the expense of the
respondent, all constitute -agreements for employer support, acquiesced in and
accepted by the respondent. It must be concluded that the Association had a
congenital defect Its roots lie in an agreement for support by the employer,
and its initiation was at the suggestion and behest of that employer.
After the effective date of the Act, the respondent made no attempt to dis-
associate itself from the affairs of the Association It made no announcement
to the employees that any connection it might have had with the Association
had been abandoned. Thereafter, in fact, it permitted the Association to conduct
elections on company time and on company property. The record shows, further,
no active collective bargaining ,relationship between the company and the Associ-
ation. A contract executed in July 1924 was renewed without substantial change
for a period of 8 years. Some testimony was introduced by the respondent indi-
cating that there had been collective bargaining with reference to wage increases
over this period Assuming, without deciding, that these facts are true, never-
theless the original contract which provided for definite wage rates was never
changed Ordinarily, collective bargaining contracts mirror the compromises
and changes incident to active bargaining The absence of change is some evidence
of the absence of genuine collective bargaining processes
In 1939, it is clear that the membership of the Association had become disinter-
ested in its operations. Attendance at meetings was negligible. The record show,
affirmatively that the rider of July 1940 was never ratified by the membership,
and that, in many cases, no meetings were held because of the failure of the
members to appear. No general membership meetings of the Association were
held from March 1941 to December 7, 1942. The respondent contends that because
on occasion there were meetings of a committee with the respondent that the
organization was still active and functioning Nevertheless, all of the circum-
stances disclose that the existence of the Association was a purely nominal one.
With the advent of an organizational campaign by the Machinists and the
Moulders, the respondent, through the statements of Nass and Bishop. and the
activity of Rindom, demonstrated its antipathy toward the A F. of L. unions.
Thereafter, on December 4, Muchnic- attempted to resuscitate the Association by
censuring its representatives for allowing interest in the Association to lag"
While Muchnic did indicate that it was up to the employees to decide which or-
ganization they were going to join, he rendered meaningless that statement of
neutrality by his attempted, and subsequently successful, rejuvenation of the
Association.
On December 14, one week before the election, the respondent announced to the
Association committee the granting of a wage increase While it is true that the
request for a wage increase originated with the Association, nevertheless, during
this critical period, the respondent was under a duty not to take any action which
might be interpreted as favoring any of the competing organizations." No reason
12 Matter of American Linen Sei vice Co., 45 N L R B 902.
13 Matter of Wapakoneta Machine Co , 47 N L R B 01
THE LOCOMOTIVE FINIISHED MATERIAL COMPANY 943
was advanced why the increase could not have been made retroactive and an-
nounced after the holding of the election . The undersigned is convinced and
finds that the announcement to the Association committee, subsequent to the
respondent 's suggestion through Muchnic that the Association increase its activity,
was a tactical maneuver designed to convince the employees of the efficacy of
the previously dormant Association as a bargaining agent. The announcement of
the wage increase at this time , and under these circumstances , was a significantly
timed strategic concession , and constituted interference , restraint, and coercion
by the respondent of its employees in the exercise of the rights to self-organization
in violation of Section 8 (1) of the Act, and, further, demonstrated to the em-
ployees, the respondent 's favoritism toward the Association as their bargaining
representative.
The respondent also acquiesced in open and extensive circulation of Association
propaganda 2 days before an election was to be held to determine a majority
representative of its employees. While there was solicitation by the A. F. of L.
unions 'al o it did not achieve the extent of solicitation demonstrated by the
wholesale circulation of Association placards on this date. It also appears that
when Reeves became active in solicitation on behalf of the Machinists, the entire
supervisory personnel demonstrated extreme Foncern. Reeves was placed under
surveillance and sternly warned to keep at his machine. No such concern was
demonstrated with reference to Association solicitation.
The holding of elections on company time and property, the failure to hold
general membership meetings, the disparity in treatment in favor of the Associa-
tion and against competing outside organizations, the lack of interest of the
membership in Association operations, are all familiar attributes of the company-
dominated organization. The respondent contends, however, that the placing of
the Association on the ballot in the holding of the consent election gives rise to an
estoppel insofar as the Board is concerned It is contended that, notwithstanding
the fact that the results of the election were voided by the Regional Director and
no certification issued, the Board is estopped from finding unfair labor practices
based on matters occurring prior to the holding of the election. This contention
is without merit. There is nothing to show that the evidence developed at the
hearing before the undersigned was known to the Board at the time of the holding
of the election. 'Nor were there any charges of unfair labor practices pending
before the Board at this time Representation and unfair labor practice proceed-
ings differ, not only in issues, but also in the relief sought In placing the name
of the Association on the ballot, under these circumstances, the Board was not
making any decision with reference to the existence or non-existence of unfair
labor practices. It was merely providing machinery whereby the majority repre-
sentative on December 21 could be determined pursuant to an agreement of all
parties concerned If, prior to ceitification, unfair labor practices affecting the
freedom of choice of the employees' voting are called to the attention of the Board,
it is within the Board's power, at this point, to withhold certification and investi-
gate the nature of the charges filed with it. If such investigation reveals the
existence of acts prohibited by a statute which it is the Board's duty in the public
interest to enforce, there is nothing, except the Board's own exercise of its
administrative discretion, which requires the Board to allow such unfair labor
practices to remain unremedied.14
14 11 'arehousenten's Union v. N. L R. B, 121 F (2d) 84 (App. D. C ), enf'g as mod 19
N L. R B. 778, cert den 314 U. S 074; Wilson £ Co, v N L R B, 126 F. (2d) 114
(C. C. A. 7), enf'g 31 N L R B 440, cert den 316 U S 699; Matter of Hicks Body Com-
pany, 33 N. L. R. B. 858; Magnolia Petroleum Company v. N. L. R B , 115 F (2d) 1007
(C. C. A. 10), enf'g 19 N. L R. B 184 Respondent cites the case of N L B B. v Suit
Shipbuilding and Diy Dock Co, decided March 31, 1943, 12 LRR 233 (C. C. A 3), setting
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that the winning of the election and the statement
thereof by the National Labor Board in 1934 amounted to a certification of the
Association in the sense that that term-is used by this Board when it issues a cer-
tification of a labor organization as a majority representative of the employees
of a particular company. There was testimony by several witnesses, and it was
stipulated by counsel for the Board, that the Association had been certified by
the National Labor Board. The significance of the term "certification" is in
doubt. It is clear that the representative of the National Labor Board stated that
the result of the vote called for the proportion of one member of the Machinists to
three members of the Association, on any employee representative body among
the employees of the respondent. There is nothing in the record to show any
formal certification of the Association by the National Labor Board.
Assuming, arguendo, the existence of such "certification," the respondent con-
tends further that "certification" by the National Labor Board in 1934 of the As-
sociation was evidence which places on that organization the stamp of legitimacy.
No evidence was produced to show that that agency had made any investigation
or had any knowledge as to the facts herein found as to the nature or origin of the
Association. In addition, the statute under which that agency operated contained
no provision similar to that of Section 8 (2) of the Act. It is, in fact, well recog-
nized that in the period of the existence of the National Labor Board, company
unions enjoyed their greatest growth. Accordingly, assuming that such certifica-
tion took place, it is of little probative significance in view of the subsequent
enactment of the National Labor Relations Act.
The undersigned finds that the Association was not the result of the employees'
free choice; that it was initiated in response to the urging of management; that
the respondent's support of the organization throughout its existence, its opposi-
tion to the A. F. of L, contrasted with its assistance to the Association, its at-
tempt to direct the employees' preference toward the Association during the
pre-election period, constitute a course of conduct which may fairly be regarded
as responsible for the adherence of the employees to the Association. On the to-
tality of the circumstances disclosed by the record, the undersigned finds that from
July 5, 1935, the respondent dominated and interfered with the administration
of the Association and contributed support to it, and thereby interfered with, re-
strained, and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act It is further found that by the statements of Bishop and
Nass the respondent interfered with, restrained, and coerced its employees in
violation of Section 8 (1) of the Act.
2. The Independent
At the meeting of January 3, 1943, no decision had been taken except to
elect officers and suspend the operation of the constitution and bylaws of the
Association for that purpose The life of the so-called temporary committee
elected at that meeting was limited to a period to end 2 weeks after the Board
determined the merits of the objections filed by the Machinists and Moulders.
aside 38 N L R B. 234 Nothing in that decision indicates that any estoppel arises against
the Board under the facts set forth in this Report. In that case, the court held that a wit-
ness, upon whose testimony the Board based a substantial portion of its findings, was not
worthy of belief, and that accordingly, the Board's order was not supported by substantial
evidence That case is further distinguishable for there the Board had issued a certifi-
cation of the allegedly company dominated oiganizations
The respondent also contends that the charges filed by the Machinists were not filed
in good faith The contention is rejected as immaterial. Matter of Wilson & Co, 31
N. L. R. B '440, enf'd in Wilson d Co v. N L. R. B., 126 F. (2d) 114 (C. C. A. 7).
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 945
It is an obvious inference that the question as to whether the Independent would
be formed hinged upon that determination. When the decision of the Regional
Director was adverse to the Association, the Independent was born. The name
adopted was similar to that of the old Association. The treasury of the Associa-
tion was transferred to the Independent. In distributing its classification ques-
tionnaire the Independent made reference to a reduction in initiation fee for
"former members." The membership card of the Independent bears only the
name "Machine Shop Employees Association," a name equally applicable to
the Association. Hekelnkaemper, the chairman, and Butcher, the secretary of
the Association, became the secretary and chairman, respectively, of the Inde-
pendent. "Doc" Watson, for several years secretary-treasurer of the old Asso-
ciation, became treasurer of the Independent. The bylaws were altered in detail
and obviously objectionable provisions omitted, but the fundamental physical
structure was the same. The governing body was still the E. It. G., though en-
larged, and there is a general similarity of operation The requirement that,
to be a representative one had to be an employee which gave the respondent
control over non-conforming representatives and precluded an outside representa-
tive, even though an employee so desired, was retained in the Independent's
bylaws."
These are factual indications that there was a connection between the Associa-
tion and the Independent. There was never, in fact, a hiatus between the dis-
solution of the Association and the formation of the Independent As found
above, for approximately 8 years the impress of the respondent's support and
favor had been laid on the Association. At no time did the respondent indicate
to its employees at large that "the company was wholly indifferent whether
they joined the new union and that, as it might and probably did, appear to be
a successor of the old, the separation should have been made plain, and with the
discontinuance of any continued countenance from the employer." 18 As soon
as the Independent presented its claim for recognition," the company without
any request for evidence of authorization, hastily executed a temporary contract
with the Independent. This reaction is in significant contrast to the reaction of
the respondent to similar claims by the outside unions. Just 3 months before the
respondent had insisted on formal and legal determination of the existence of
majority representation on the part of the A. F. of L. unions. In spite of pending
charges of domination of the Association, however, the respondent was ready to.
assist the Independent by the immediate execution of it temporary agreement in
advance of actual bargaining negotiations, and content to rely on the Independ-
ent's oral and unsupported assertion of majority status. The respondent's pre-
cipitate recognition of the Independent and its immediate execution of a temporary
contract constituted support of the Independent. The undersigned is of the opin-
ion and finds that on the whole "congeries of facts138 disclosed by the record, the
Independent was the successor to the Association, and that the employees were
never given the opportunity freely to' choose their own representatives. It is
further found that the respondent dominated and interfered with the formation
and administration of the Independent, and contributed support thereto, and
has thereby interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
15 Roebling Employees Association, Inc. V. N. L. R B., 120 F. (2d) 289 (C C. A. 3), enfg
17 N L R B 482
16 Westinghouse Co. T N L R B, 112 F. (2d) 657.
11 It is noted that the letter of March 8 requesting recognition was signed "The Machine
Shop Einpi_yees Association" and That this reply was similarly addressed.
1b N L. R B v Link Belt Co., 311 U. S 584.
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
D. Other alleged interference, restraint, and coercion
The Board introduced evidence that the respondent required applicants for
employment to fill out a blank requesting, in part, that the applicant list all
,organizations of which the,applicant was a member. It is contended by the
Board that the blank is objectionable in that it requires prospective employees
to reveal their union affiliation. The evidence shows that the respondent is en-
gaged in defense work and inserted the disputed language in the questionnaire
at the request of Colonel Vail of the Seventh Service Command. There is no
indication that the request for information,concerning the organizational back-
ground of the applicant was directed peculiarly and primarily at the revelation
of his labor union affiliations. It will be recommended that the allegation of
the complaint to the effect that the respondent required its employees to reveal
their union affiliations as a prerequisite to securing employment be dismissed.
E. The discharge
Nelea Woods began his employment in the respondent's foundry on October 28,
1942, and joined the Moulders about a month later. He worked, on the. night
shift as a chipper under the supervision of Luther Rindom. Tyler was foreman
of the foundry and Rindom was entitled by the respondent a working foreman.
Tyler spent most of his time on the day shift, leaving Rindom in charge of the
night shift. It was customary for Tyler to remain in charge of the night shift
until 5: 30 p in , from which time on to the end of the shift, _Rindom was in full
charge. Rindom did not have authority to hire or discharge The respondent
admits, however, that he was a "supervisory employee of a sort " Rindom exer-
cised the authority to permit employees to leave prior to the scheduled quitting
time. In addition, he had on occasion censured employees for misconduct.
RRindom, a white employee, was referred to by Woods, a colored employee, as his
"boss." Rindom testified that it was his job to "keep the men busy" and that
the men were accustomed to obeying his orders. Moorehead testified that an
inspector named Carson was in charge when Tyler was away from the plant"
However, Rindom testified that Tyler was his superior, and that he reported to
Tyler on the next day the happenings of the preceding evening. Rindom testi-
fied further that he waited until Monday to report to Tyler the Woods-Hurston
incident of Saturday, discussed hereinafter. If Carson were in charge, it is
reasonable to infer that Rindom would report to Carson rather than wait to report
to Tyler. The undersigned finds that whatever may have been the status of
Carson, he exercised no'supervision over the chippers, and finds further that
Rindom was in sole charge of the chippers in the absence of Tyler and is an
employee for whose activities the respondent is responsible.
Woods testified that about the middle of November David Carey, an employee,
came to him with an anti-A. F. of L. petition and requested him to sign it.
The petition read as follows :
To Whom it may concern :
In as much as we were misinformed about the A. F. of L. Union, we the
following do hereby wish to withdraw our authorization of representation
vote from the A. F. of L. Union.
Woods refused. After a repetition of the request again met failure, according
to Woods, Carey remarked to Rindom in Woods' presence that he would have to
turn Woods over to Rindom because he could not get Woods to sign the petition.
"' Carey so testified , but admitted on cross-examination that he never worked on the night
shift . It is obvious that Carey had no personal knowledge of the status of Carson, and
his testimony on this point is not material. -
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 947
Woods testified that Rindom then spoke to him, saying , "Don't you think it would
be best for you to sign this paper ?"; that he again refused, and Rindom said,
"You're kind of like your neighbor over there ain ' t you ? ... Now he refused
to sign this paper. He don't consider his job" ; that he replied , "You mean
to tell me , I don't consider my job?" Woods testified further Rindom answered
this question by saying , "I think it would be better for you to sign this paper."
Woods did not, however, sign the petition. Rindom did not deny the above inci-
dent and Woods ' testimony is substantially corroborated by Carey. In its brief
the respondent admits that the incident occurred as testified by Woods. The
undersigned accordingly credits Woods ' testimony . Rindom's statement to Woods
indicated that membership in the Moulders would jeopardize the security of his
employment with the respondent. Such conduct is prohibited by the Act. By
Rindom's conduct on this occasion the respondent interfered with , restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of
the Act m
On Saturday, February 27, 1943, according to Woods, work was slack and he
decided to go home after the lunch hour. He testified that he spoke to Rindom,
stating that his son was coming up from Fort Crook and that he would like to
have a half day off to see him . Woods testified further that Rindom asked him
if he had talked to Tyler, and Woods stated that he had not, adding that he
planned to take this half day off because he had not taken any time off before.
According to Woods, Rindom replied, "I guess that's all right."
Henry Hurston, a fellow employee, decided to leave at the same time although
he made no request of Rindom for permission to leave. Both men left together
at 7:30 p. in. On Monday when they reported for work they were told they
were discharged for "walking off the job" on Saturday night. Woods protested a
without avail.
Rindom testified that both Woods and Hurston "walked off the job" without
requesting permission to leave. He testified that at 7: 30 p. in., the "lunch
hour," the two men put up their tools, went to the wash room, cleaned up, and
started home ; that he asked them if the foreman, referring to Tyler, had given
them permission to leave ; that Woods replied that he had not, but that he had
worked there for quite a spell and that he would take the night off if he wanted it.
Rindom testified further that he then asked Woods if he realized he was "fooling
with his job" when he walked off. According to Rindom, Woods replied that he
could find another job, and walked off. Rindom denied that work was slack
and testified that, on the contrary, there was plenty of work available. Tyler's
testimony as to the report made by Rindom to him as to the Woods-Hurston
incident, is consistent with, and corroborative of, the testimony of Rindom.
Hurston testified that when Woods and he left the plant, Rindom did say some-
thing about the fact that fellows who walked off the job have been known to
have been discharged.
The undersigned is convinced and finds that Woods left the plant without the
permission of Rindom, and that Rindom indicated to Woods and Hurston the
possibility of discharge for such conduct. Hurston was not a member of any
union and was, in fact, opposed to the Moulders. The two men were individually
discharged upon reporting for work. The same reason was advanced to each for
his discharge. While the record shows that Hurston had been frequently ab-
aA The respondent contends that the fact that Rindom's attempt to have Woods sign the
withdrawal petition was unsuccessful requires a finding that Rindom's conduct was of no
legal significance . It is immaterial that the proscribed conduct did not achieve the desired
result. N. L . R. B v. John Engelhorn & Sons, 134 F . ( 2d) 553 (C. C. A. 3) N. L. R B. v.
Rapid Roller Co. 126 F. (2d) 452 (C. C. A. 7).
549875-44-vol. 52-61
948` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent, and that Woods had been regular in his attendance at work, under all the
circumstances, the undersigned finds that the evidence does not sustain the allega-
tions of the complaint that Woods was discharged because of his affiliation with
the Moulders.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent set forth in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
IL_
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the un-
dersigned will recommend that it cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of the Act.
It has been found that the respondent dominated and interfered with the ad-
ministration of The Machine Shop Employees' Association of The Locomotive
Finished Material Company and contributed financial and other support to it.
It will be recommended that the respondent cease and desist therefrom and with-
draw recognition of such organization.
It has been found that the respondent assisted and encouraged the instigation
and formation of the Independent as successor to The Machine Shop Employees'
Association of The Locomotive Finished Material Company, and thereafter dom-
inated and interfered with the administration and encouraged and fostered the
growth and continued existence of the Independent and that about March 15,
1043, the respondent entered into an agreement granting exclusive bargaining
rights to the Independent as a part of its plan of interference. Under these con-
ditions, the continued recognition of the Independent as the bargaining repre-
sentative of the respondent's employees constitutes a continuing obstacle to the
free exercise by its employees of their right to self-organization and to bargain
collectively through representatives of their own choosing. Because it is tainted
with the respondent's illegal conduct, the Independent is incapable of serving the
employees as a genuine collective bargaining agency and its continued recognition
would obstruct the free exercise by the respondent's employees of the rights
guaranteed to them by the Act. Accordingly, it will be recommended that the
respondent withdraw all recognition from the Independent as the representative
of, any of the respondent's employees at its Atchison, Kansas, plant for the pur-
pose of dealing with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or any other conditions of employment and completely
disestablish said Independent.
Under the facts found, the agreement with the Independent constituted and
was a part of the respondent's unfair labor practices. Accordingly, it will be
recommended that the respondent cease and desist from giving effect to the
agreement with the Independent signed on or about March 15, 1943, as well as
to any extension, renewal, modification, or supplement thereof, and any super-
seding agreement which may now be in force. Nothing herein shall be taken
to require the respondent to vary those wages, hours, seniority, and other such
substantive features of its relations with the employees themselves which the
respondent has established in the performance of the agreement or as it has
been extended, renewed, modified, supplemented, or superseded.
THE LOCOMOTIVE FINISHED MATERIAL COMPANY 949
Upon the basis of the foregoing facts and upon the entire record on the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists and International Moulders &
Foundry Workers Union of North America, Local 418, both affiliated with the
American Federation of Labor, and The Machine Shop Employees ' Association
of The Locomotive Finished Material Company and Machine Shop Employees'
Association of Atchison , both unaffiliated organizations , are labor organizations,
within the -meaning of Section 2 ( 5) of the Act.
2. By dominating and interfering with the administration of Machine Shop
Employees ' Association of the Locomotive Finished Material Company, and by
dominating and interfering with the formation and administration of Machine
Shop Employees ' Association of Atchison, and by contributing financial and other
support to the former and by contributing support to the latter , the respondent
has engaged in and is engaging in unfair labor practices , within the meaning of
Section 8 ( 2) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act , the respondent has engaged in and
is engaging in unfair labor practices , within the meaning of Section 8 (1) of
the Act.
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 respondent has not engaged in any unfair labor practices in regard to
the hire and tenure of employment of Nelea Woods , within the meaning of
Section 8 ( 3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the un-
dersigned recommends that the respondent The Locomotive Finished Material
Company, its officers, agents , successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Machine Shop
Employees ' Association of The Locomotive Finished Material Company, or its
successor , Machine Shop Employees ' Association of Atchison , or with the forma-
tion or administration of any other labor organization , and contributing financial
or other support to said labor organizations or to any other labor organization ;
(b) Recognizing Machine Shop Employees ' Association of Atchison as the rep-
resentative of any of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , wages, rates of pay, hours of employment,
or other conditions of employment ;
(c) Giving effect to the agreement of March 15, 1943, with the Machine Shop
Employees ' Association of Atchison, or any modification , extension , supplement, or
renewal thereof , or to any superseding agreement with it ;
(d) In any other manner interfering with, restraining , or coercing its em-
ployees 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 concerted activities for the purpose of collective bar-
gaining 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) Withdraw all recognition from and completely disestablish The Machine
Shop Employees ' Association of the Locomotive Finished Material Company and
0
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machine Shop Employees' Association of Atchison as the representatives of any
of its employees for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment.
(b) Post immediately in conspicuous places throughout its Atchison, Kansas,
plant, and maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices stating that: (1) the respondent will not engage in the
conduct from which it has been recommended that it cease and desist in para-
graphs 1 (a), (b), (c), and (d ) of these recommendations ; and (2 ) that the
respondent will take the affirmative action set forth in paragraphs 2 (a) and (b)
of these recommendations ;
(c) Notify the Regional Director for the Seventeenth Region, in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the date
of the receipt of this Intermediate Report , the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is recommended that the complaint be dismissed insofar as it alleges that
the respondent violated Section 8 (1) of the Act in that it required its employees
to reveal their union affiliations as a prerequisite to securing employment and inso-
far as it alleges that the respondent distributed bonuses among its employees and
paid for a party for the benefit of a large number of employees, which bonuses and
party were given at such a time as to dissuade the employees from continuing
their membership in and activities in behalf of the Machinists and Foundry
Workers.
It is further recommended that the allegations of the complaint as to the dis-
charge of Nelea Woods be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2-as amended, effective October 28,
1942, any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton, D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
Dated June 22, 1943.
BimNARD CUSHMAN,
Trial Examiner.
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