Zenite Metal Corp.

National Labor Relations Board - Board Decisions

Feb 19, 1938

5 N.L.R.B. 509 (N.L.R.B. 1938)

In the Matter Of ZENITE METAL CORPORATION and UNITED AUTO310BILE
WORKERS OF AMERICA, LOCAL No. 442
Cases Nos. C-214 and R-216-Decided February 19, 1938
Automobile and Refrigeration Parts Manufacturing Intlustry-Interference,
Restraint, or Coercion: persuading employees to refrain from forming or joining
a union; soliciting membership by supervisory employees-Closed-Slop Con-
tract: with company-favored union not the free choice of a majority of the
employees-Discrimination: discharge of employees because of non-membership
in favored labor organization-Collective Bargaining: refusal to negotiate with
representatives of majority of employees-Unit Appropriate for Collective Bar-
gaining: production employees, exclusive of buffers, polishers and platers ; wage
differentials ; skill ; history of collective bargaining relations with employer-
Representatives: proof of choice : membership applications in union-Back Pay:
awarded.
Mr. Emmet P. Delaney and Mr. Benjamin E. Gordon, for the
Board.
Gavin & Gavin, by Mr. James L. Gavin, and Eubank clm Dowden,
by Mr. Louis Eubank and Mr. Samuel H. Dowden, of Indianapolis,
Ind., for the respondent.
Mr. Arthur C. Edwards, of Indianapolis, Ind., for the U. A. W. A.
Mr. H. T. Hamilton and Mr. Freeman Snyder, of Indianapolis,
Ind., and Mr. David Kaplan and Mr. Paul R. Hutchings, of Wash-
ington, D. C., for the I. A. M.
Mr. Abraham L. Kaminstein, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 2, 1937, United Automobile Workers of America, Local
No. 442, herein called the U. A. W. A., filed with Robert H. Cowdrill,
Regional Director for the Eleventh Region (Indianapolis, Indiana),
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of Lenite Metal Cor-
poration, Indianapolis, Indiana, herein called the respondent, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On June 7, 1937, the National Labor
509
510 NATIONAL LABOR RELATIONS BOARD
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended, ordered
an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice. Notice
of the hearing on the petition was duly served upon the respondent,
upon the U. A. W. A., upon the International Association of Ma-
chinists, herein called the I. A. M., which had been named in the peti-
tion as a labor organization claiming to represent employees in the
bargaining unit, and upon the Metal Polishers, Buffers, Platers and
Helpers International Union, Local No. 171, herein called Local 171,
a labor organization named in the petition as representing employees
not in the bargaining unit claimed to be appropriate.
Charges and amended charges having been duly filed by the
U. A. W. A. on June 8, 1937, and June 17, 1937, respectively, the
Board, by the Regional Director, issued and duly served its com-
plaint dated June 17, 1937, against the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449. On June 17, 1937, copies of the complaint
and notice of hearing were served upon the same parties as were
served with the notice of hearing in the representation proceeding.
On June 18, 1937, the Board, acting pursuant to Article II, Sec-
tion 37 (b), of the Rules and Regulations-Series 1, as amended,
ordered that the two cases be consolidated for purposes of hearing.
On June 23, 1937, the respondent filed its answer to the complaint,
in which it denied that it had engaged in or was engaging in the
unfair labor practices alleged therein, and denied that its activities
constituted a continuous flow of trade, traffic, and commerce among
the several States. On the same day the respondent filed written
motions to make the charge more specific, to quash the complaint, and
to dismiss the charge; all three motions being directed to insufficien-
cies in the charge, and to the Board's jurisdiction. At the opening
of the hearing the Trial Examiner, after hearing argument in sup-
port of the motions, denied them.
On June 23, 1937, the I. A. M. filed a motion to intervene, stating
facts as to its designation as exclusive bargaining agent at the re-
spondent's plant. On June 24, 1937, pursuant to Article II, Section
19, of the Rules and Regulations, Series 1-as amended, the Re-
gional Director issued and served his order permitting such inter-
vention for the purpose of presenting evidence with respect to the
designation of the I. A. M. as the representative of the employees
of the respondent, and with respect to the question of the appro-
priate bargaining unit.
DECISIONS AND ORDERS 511
Pursuant to notices of hearing and of postponement of hearing,
duly served upon all parties who had been served with the original
notice of hearing, a joint hearing on the complaint and petition was
held in Indianapolis, Indiana, on July 2 through July 14, 1937,
before Frank Bloom, the Trial Examiner duly designated by the
Board. The Board and the respondent were represented by coun-
sel, the U. A. W. A and the I. A. M. by officers. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded to all the parties.
At the close of the hearing briefs were filed on behalf of the re-
spondent and the I. A. M.
During the course of the hearing counsel for the Board moved that
the pleadings be conformed to the proof. This motion was granted
by the Trial Examiner in his Intermediate Report. During the
hearing and at its conclusion, the respondent made several motions
to dismiss the complaint. The I. A. M. made a similar motion at
the close of the hearing. All these motions for dismissal were denied
by the Trial Examiner in his Intermediate Report. During the course
of the hearing all parties made numerous motions and objections.
The Board has reviewed the rulings of the Trial Examiner on these
matters, and the above-mentioned motions, and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
On August 11, 1937, the Trial Examiner filed his Intermediate
Report finding that the respondent had engaged in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act, but making no finding
in regard to a violation,of Section 8 (2). The respondent and the
I. A. M. filed exceptions to the Intermediate Report which the Board
has considered and, except as indicated hereinafter, finds them to be
-without merit.
The I. A. M. took exception to the statement of the Trial Examiner
in his Intermediate Report that the terms of the intervention order
had been enlarged during the course of the hearing, in that, except
for one instance, it was not allowed to examine witnesses on methods
used by the U. A. W. A. in obtaining membership applications. In
view of the fact that all parties entered into a stipulation on the record
which covered this question, any further testimony on the same sub-
ject would merely have been repetitive and would have proved nothing
that had not already been admitted. The record also shows that
the Trial Examiner scrupulously observed the rights of the I. A. M.
throughout the entire proceeding, and that it was he who suggested
that the I. A. M. move to widen the order of intervention, indicating
his willingness to consider such a motion. But the I. A. M. never did
so, and merely asked for permission to go beyond the scope of the
original order in one case and examine a witness. This was allowed.
512 NATIONAL LABOR RELATIONS BOARD
We find no error in the rulings of the Trial Examiner in this respect.
The I. A. M. also objected to the conduct of counsel for the Board
and the Trial Examiner, and alleged that they had severely exam-
ined the temporary officers of the I. A. M., especially Thomas Bell,
and Frank Sanders. The record fully reveals the very evident reluc-
tance with which these witnesses testified. Sanders changed his testi-
mony on several occasions, and was very unwilling to reveal infor-
mation evidently within his own knowledge. As we have stated
before, "The Trial Examiner cannot be criticized because he elicited
the truth from reluctant witnesses." 1
Pursuant to notice, a hearing was held before the Board on
September 20, 1937, for the purpose of oral argument. The respond-
ent, the U. A. W. A. and the I. A. Al. were represented, and the
respondent filed another brief,2 which the Board has considered.
Upon the entire record in both cases, the Board makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana corporation, reorganized in 1933
under the provisions of the Indiana General Corporation Act. It
first began operation in 1908 under the name of Duckwall Belting
and Hose Company. The respondent now maintains its principal
office and place of business in Indianapolis, Indiana, where it is
engaged in the business of buying, selling, and manufacturing metal
products of all kinds. At the present time its chief products are
metal stampings, moldings, and grilles, for use in the automotive
and refrigeration fields. Most of the respondent's business is done
on order, in fulfillment of yearly contracts.
The larger percentage of raw materials, according to the testimony
of J. I. Garrett, secretary and treasurer of the respondent, comes
from outside the State. These consist of zinc, brass, and stainless
steel, brought in from Pittsburgh, Pennsylvania ; Cleveland, Ohio ;
Illinois, and points within Indiana. Approximately a million pieces
a month are manufactured, and 90 per cent of the products are sent
outside the State of Indiana. Approximately 60 per cent of the
total product is shipped to Michigan; the remainder shipped out-
side the State is sent principally to Wisconsin, Minnesota, Indiana,
and Ohio. The principal customers of the respondent are Chrysler
Corporation in Detroit, Michigan, Seamon Body Corporation in
Milwaukee, Wisconsin, and Ford Motor Company in Dearborn,
Michigan, in the automotive field; and Westinghouse Electric and
'Matter of National Electric Products Corporation and United Electrical and Radio
Worl ers of Amer zea, Local No 609, 3 N. L. R. B 475.
2 we shall refer to this as the supplementary brief.
DECISIONS AND ORDERS 513
Manufacturing Company in Mansfield, Ohio, and Seager Refriger-
ator in St. Paul, Minnesota, in the refrigeration field. The respond-
ent ranks within the first fifteen companies engaged in its type of
work. In 1936 its total volume of sales amounted to approximately
$1,097,000.
H. THE ORGANIZATIONS INVOLVED
United Automobile Workers of America, Local No. 442, affiliated
with the Committee for Industrial Organization, is a labor organiza-
tion admitting to its membership all production employees of the
respondent, exclusive of clerical, office, and supervisory employees.
International Association of Machinists, Local No. 1022, affiliated
with the American Federation of Labor, is a labor organization
admitting to its membership all production employees of the
respondeiit.3
Metal Polishers, Buffers, Platers and Helpers International Union,
Local No. 171, affiliated with the American Federation of Labor, is
a labor organization admitting to its membership the buffers, polish-
ers, and platers employed at the respondent's plant, as well as em-
ployees in other plants located in Indianapolis, Indiana.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to April 1937, all or nearly all of the buffers and polishers
in the respondent's plant had become members of Local 171. At
some time during April, Local 171 began negotiations for a contract
with the respondent. These negotiations were concluded on May 17,
1937, when a contract was signed. This agreement was to become
effective on June 1, 1937, and to run for a period of one year.
At about the same time that the above negotiations were beginning,
organizers for the U. A. W. A. began to distribute handbills and to
procure members among the employees in the respondent's plant.
The first mass meeting was held on April 17, and membership in the
U. A. W. A. grew during the remainder of April and the beginning
of May. On May 13, a proposed agreement was submitted to a
U. A. W. A. meeting, at which it was voted that the contract be sub-
mitted to the proper officials of the respondent, and negotiations
begun. On May 14, Joseph D. Persily, director for the Indiana region
for the Committee for Industrial Organization, contacted A. D.
Murray, vice president of the respondent, and on behalf of the
U. A. W. A. presented the proposed contract to him. Persily asked
3 Local 161 of the International Association of Machinists acted for the Zenite members
up to the time of the hearing During the course of the hearing Local 1022 received its
charter.
514 NATIONAL LABOR RELATIONS BOARD
Murray for an appointment at which the agreement could be dis-
cussed. Murray replied that he could give them no appointment
that week, as he was going out of town and would not be back before
May 22 at the earliest. During the morning of May 18, however, the
president of the U. A. W. A., A. C. Edwards, was presented with a
letter from Murray stating, "This is to advise ydu that the officers
and directors of this Company will enter into negotiations with your
Union under date of May 24 and attempt to conclude same by
May 28." 4
Aware of the activity of the U. A. W. A. and the growing member-
ship in that organization, and informed that the U. A. W. A. was
seeking to take over the sole bargaining rights for the plant, mem-
bers of Local 171 became anxious. On May 22, they went to see the
Board's Regional Director, Mr. Robert H. Cowdrill, and asked him
whether their contract could be disturbed by the U. A. W. A. Cowdrill
informed them that the U. A. W. A. could not trouble them in any
way, unless it procured some of the members of Local 171.
On May 24 conferences between the respondent and the U. A. W. A.
commenced. The first question asked by the respondent, through
Gavin, its attorney, was, "How many men, Mr. Persily, are already
members of your Union?" 6 Persily replied that the approximate
percentage was 75 to 80 per cent of the men. The U. A. W. A. further
stated that it believed it had a great majority of those employed in
the plant and that it was entitled to sole bargaining rights. The
respondent replied that it already had a contract with the buffers and
polishers, and that it would agree that the U. A. W. A. could bargain
for its own members only. The U. A. W.A. at first insisted that the
Act entitled them to sole bargaining rights, because they had a ma-
jority of the entire plant. On May 28, however, it was definitely
agreed that the U. A. W. A. would accept exclusive representation
for all employees in the plant with the exception of the buffers and
polishers. Gavin stated that this arrangement was satisfactory and
met his prior objection.
As a result of the conferences held on May 25, 26, and 27 the re-
spondent and the U. A. W. A. were in substantial agreement on many
points, leaving open some questions concerning wages, plant or de-
partmental seniority, vacations, and arbitration. At no time did the
respondent ever question the majority of the U. A. W. A., or ask
for such proof; the respondent admitted that it was accepted that
the U. A. W. A. did represent a majority of the employees.
During the week in which the negotiations with the U. A. W. A.
began, members of Local 171 sought the aid of Louis C. Schwartz,
of the International Association of Machinists, Local No. 161, of In-
Board Exhibit No. 6.
1 Board Exhibit No. 7.
DECISIONS AND ORDERS 515
dianapolis, for the purpose of organizing the plant. Schwartz sup-
plied them with application cards, and on May 27 contacted officials
at the respondent's plant. He described his impression of this meet-
ing as follows : "I proceeded to the plant and met with some of the
officials. They were very agreeable. They informed me that they
would be acceptable to carry on negotiations with the Machinists
Union representing their employees."
On the evening of May 27 the I. A. M. held its first meeting, and
authorized the presentation of a tentative contract to the respondent.
Schwartz testified that at 11: 30 p. m. that same night a letter was
written to the respondent in which the I. A. M. stated that it assumed
the authority to represent the "Toolmakers, Machinists, Specialists
and Production Employees" of the respondent. The note concluded,
"Articles of Agreement will be submitted for conference on June 1,
1937, and we trust that you will arrange td meet our representative
on that day." e
The respondent maintained that this letter was received by it on
May 27, but the testimony of those who wrote and sent it shows
clearly that the letter was delivered by messenger on May 28. The
letter indicates that the proposed agreement would be presented on
June 1; actually it was presented to the respondent the same after-
noon the letter was received. Thus no time was lost in the negotia-
tions with the I. A. M.
On May 26, 1937, the I. A. M. began an active organizational cam-
paign, which was particularly intensive on May 26, 27, and 28. Dur-
ing these days the buffers and polishers ranged through the plant at
will, signing up employees in the I. A. M. Though the U. A. W. A.
had solicited membership in the plant before this time, there is no
evidence that it was ever aided by the respondent or its supervisory
officials. The leading participants in the I. A. M. drive were Frank
Sanders, Thomas Bell, Virgil Farley, Marion Gatlin, and George
Breedlove. All of these men are part of the supervisory staff of
the respondent or hold some position which, in the eyes of the em-
ployees of the plant, clearly indicates their connection with manage-
ment. Though sometimes termed foremen, assistant foremen, set-up
men, and inspectors, by the respondent, such titles are an insufficient
basis upon which to judge the position of these men. Murray, vice
president of the respondent, stated that the plant was not large
enough for any sharp differentiation between the supervisory and
non-supervisory employees, and that men who were qualified for
supervision or inspection were given those duties, irrespective of
what their titles might be.
'Frank Sanders is employed in the molding division of the plant,
and has a variety of duties. Admittedly Sanders is an ex-foreman.
9 Intervenor Exhibit No. 6.
516
NATIONAL LABOR RELATIONS BOARD
At present he takes charge of the plating room and supervises all
the work that goes on at any time in that room. He occasionally
does some buffing and polishing, and he checks the time sheets for
a line of polishers and buffers; if he finds their work unsatisfactory,
he reports it to the foreman. He signs the time sheets for these men
in the space ordinarily left blank for the signature of the foreman.
Thus, the time sheets so signed by Sanders read, in part, "Approved
by F. S. Foreman." 7 Sanders' own time sheets show that he is paid
for "plating and polishing, and supervision." 8 Occasionally the
"supervision" is changed to read "inspection." 9 Witnesses testified
that Sanders tells the platers and polishers what to do, and that he
was the "boss of the buffers." At one time Sanders had been a mem-
ber of Local 171, but he said he was no longer affiliated with that
organization. Evidently this statement stemmed from the fact that
he had been elected recording secretary of the I. A. M., for he had
never resigned from Local 171.
Bell checks the work of sixteen buffers, and is classified by the
respondent as an inspector. When their work is not satisfactory, he
directs the buffers to do it over. - At the end of the day they turn
the sheets showing the amount of work they have finished over to
Bell, who checks them to see that they coincide with the time sheets.
A pay roll submitted by the respondent 10 lists George Breedlove
as foreman of the buffers, Marion Gatlin as assistant foreman, and
Roy Turner as assistant foreman and set-up man. Virgil Farley
testified that he was not an assistant foreman, but was merely a set-
up man in the grille department.
A review of the activities of Sanders, Breedlove, and the other
supervisors, will demonstrate the extent to which the respondent,
through its officials, promoted and engaged in the drive of the
I. A. M. from the time of its inception on May 26.
On the stand Frank Sanders admitted that on May 26 and 27 he
signed up at least 130 people. Of these, Sanders says he signed 60
to 75 in the plating room, and the remainder in the basement. In
addition, Sanders also wandered around the plant and secured a
few applications at other points. During all this unwonted activity,
Sanders would have us believe that he continued to work as usual,
and simply signed people up as they came in. Sanders admitted
that he wrote at least half the cards himself, and that, at times, there
were 'four or five people gathered around him. Other witnesses tes-
tified that the line sometimes extended to fifteen persons.
Board Exhibit No. 27.
Respondent contended Sanders was not a foreman since his pay was only 50¢ an hour.
Board Exhibit No 26 shows that Sanders is paid both on an hourly and piece basis, and
that his rate is frequently from 86¢ to 92¢ per hour.
e Board Exhibit No. 26.
`^ Board Exhibit No. 21.
DECISIONS AND ORDERS 517
Sanders denied that he had told employees that they could not
have a job unless they signed up with the I. A. M., or that it would
cost them $25 to do so later on, although he did admit saying it
would cost them over $5 to join the I. A. M. if the charter was
closed. However, many witnesses corroborated the statements
Sanders is said to have made, and we see no reason for disbelieving
their testimony. One of the employees was told that the company
would not sign with the U. A. W. A., and that if he wanted to work
he would have to join the P. A. M. When Sanders took his appli-
cation, he told him to keep it quiet ."so that the C. I. O. would not
find out about it yet."
Sanders further testified that Tom Bell assisted him in his cam-
paign for membership, and that Marion Gatlin helped him at night.
He said that Virgil Farley brought the applicants he secured down
to the plating room where they were signed up. It will be seen
that though Sanders and the plating room were the focal points of
I. A. M. activity, his assistants saw to it that the rest of the plant
was not neglected.
Witnesses testified that Breedlove had talked to them in the plant
and told them that the C. I. O. would not go over, and that if they
didn't join the A. F. of L. by ten o'clock they would be locked out of
the plant, and would not be allowed to work. Mary Prestwood and
Stanley Webb testified that Breedlove told them this story and to go
down and see Frank Sanders who would fix them up. Both went
down and signed up, after Mary Prestwood had asked Sanders if
what Breedlove said had been correct. Sanders reaffirmed the state-
ments, and told them it would cost them $25 if they signed after ten
o'clock.
On Saturday afternoon, May 29, Breedlove was sitting in a tavern
and entered into an argument with two employees. Deck and Hale,
the two employees, testified that Breedlove had told them, "Anyone
that belongs to the C. I. O. is worse than scabs ... Better sign with
the A. F: of L.. . . I know more about the place than people think I
do, and I know the Zenite is not going to sign the C. I. O. contract . . .
If you don't sign before Tuesday morning, you get a gas pipe wrapped
around your neck." Breedlove said that he merely told the employees
that the A. F. of L. had been in the plant first, "and if there had to be a
union there it should be everything together." Breedlove's denial is
weakened by his own later testimony.
Joseph B. McClanahan, an employee in the Dodge grille on the
night shift, testified that Turner, foreman or assistant foreman in the
grille, told the -employees that "the Company would not meet the
obligation of the C. I. 0., that it was a losing proposition to try to
meet the demand, and they could not accept it." On June 1, McClan-
518 NATIONAL LABOR RELATIONS BOARD
ahan met Breedlove, who said, "Don't join up with the C. I. O. They
are no good. They will put us out of business. The A. F. of L. is
all right, but the C. I. O. is no good." It is significant that neither
Breedlove nor Turner denied these statements.
Leonard Keeler, another employee on the night shift, testified that
Virgil Farley had told him to get the C. I. O. members over to the
A. F. of L. Keeler confirmed the testimony of McClanahan, and
stated that Bud Rader, in the presence of the witnesses' foreman,
Turner, told the men in the grille department that Duckwall had once
closed the windshield plant on account of union trouble, and that
Duckwall would sign with the A. F. of L. but not with the C. I. O.
Turner verified the statements of Rader.
The closing down of the respondent's plant for two hours on June
1, to allow attendance at an I. A. M. meeting, is an additional indica-
tion of the assistance rendered the I. A. M. by the respondent."
The testimony of Marion Gatlin, who is admitted by the respondent
to be an assistant foreman, and who is a member of the I. A. M.,
shows that practically all the men in his department went to the
meeting, which he himself also attended. No general orders seem
to have been issued in regard to the closing of the plant. A. L.
Teall, general foreman in charge of the night shift, testified that
Mann, superintendent of the plant, informed him that he. could shut,
clown the plant for two hours if the men wanted to go to the meeting.
Teall testified that the plant closed down, the power was shut off,
and nobody worked. However, Teall stated that he made no general
announcement as to the shut-down. On further examination, he be-
came uncertain as to whether the entire plant had closed, and con-
cluded that a majority of the men on the second floor had not gone
to the meeting. The only one he had spoken to was Virgil Farley,
who had informed him that all the men wanted to go.
The respondent did not seriously dispute the organizing activities
of its supervisors in the shop and outside it. It relied upon the fact
that they were not instructed to take any part in the I. A. M. cam-
paign, and that, in any event, there had been no showing that any
men working under these foremen, assistant foremen, and inspectors
were influenced by them into joining the I. A. M. It argued that
only those working directly under Sanders, Breedlove, Farley, et al.,
would be so influenced. However, it is apparent that in a small
plant other employees will also take their cue from those they assume
are more closely connected with management, whether or not they
happen to be under their immediate supervision.
"Though the respondent offered the same privilege to the U. A W. A. on June 1, at
the time such offer was extended , the U. A W A. had substantially completed its organizing'
activities , and the privilege was never exercised.
DECISIONS AND ORDERS 5191
The testimony indicates that some of these supervisors spent the
major portion of their working hours on May 26 and 27 aiding the.
I. A. M. The respondent did not deny Sanders' activities in the
plant, and indeed Sanders admitted them. But the respondent,
stated that it knew nothing of these activities because the plating-
room is set apart. The Trial Examiner, who was able to observe the
witnesses and who examined the factory and the location of the
plating room, found the testimony of officers of the respondent that
they did not know Sanders was so engaged "simply not credible."-
Any perusal of Sanders' industry on these days cannot but lead to.
the same conclusion.
When confronted with the actions of Breedlove, the respondent said.
it ought not be held accountable for the "whiskey inspired vaporings"-
of a foreman, particularly since he was not in the plant at the time-
he made the statements. Such a defense, even if tenable, does not
meet the additional testimony of witnesses, who told of Breedlove's,
warnings within the plant.
The tactics of the respondent and its officials in aiding the I. A. M._
resulted in a protest by U. A. W. A. representatives to the respondent
May 28. Again on June 1 the respondent was warned that officials,
had been soliciting members for the I. A. M. and had threatened em-
ployees with the loss of their positions if they did not join. On,
June 2, feeling these protests ineffectual, the U. A. W. A. called a,
strike and walked out of the plant.12 Most of the employees went out,
immediately, and an hour later the buffers stopped work and also left,
the plant. The strike lasted until June 10.
During the period of the strike, Sanders and Bell visited the homes
of employees, and continued to solicit signatures to petitions and.
statements designating the I.- A. M. Witnesses testified that they-
were told that unless they signed they would not go back to work..
When some protested that they were already members of the U. A.
W. A., they were informed that signing the petition would not
indicate membership in the I. A. M. but meant that the employee-
would return to work.
From the facts set forth above, we find that the respondent has,
interfered with, restrained, and coerced its employees in the exercise.
of the rights guaranteed in Section 7 of the Act.
' The respondent insists that the strike was illegal , since no secret ballot was taken,
upon the question , as required by the bylaws of the U. A. W A In Matter of Alaska
Juneau Gold Minting Company and International Union of Mine, Mill and Smelter Workers,
Local No. 203, 2 N. L. It B. 125, at 142, the Board pointed out that, "It is neither the,
business of the Board nor of an employer to inquire into the manner in which labor-
organizations conduct their internal affairs . . . Nor can the fact that a Union may not
conduct its affairs in perfect parliamentary fashion give the employer any justification,
for violating the Act."
80535-38--34
14
520 NATIONAL LABOR RELATIONS BOARD
B. The refusal to bargain collectively
1. The appropriate unit
The petition of the U. A. W. A. seeks ail appropriate -unit con-
sisting of all the production employees, exclusive of the buffers,
polishers, and platers. The I. A. Al. contends that a complete indus-
trial unit is more fitting here, and that the buffers, polishers, and
platers ought to be included in the appropriate unit.
Though spread throughout two buildings, the various departments
in the plant, molding, tool, grille, plating, and press, are physically
interconnected, and are interdependent upon each other. A. D. Mur-
ray, vice president of the respondent, stated that the molding and
grille departments, the two largest divisions in the plant, might be
considered as separate units or treated as one unified whole.
The buffers, polishers, and platers are employed in three depart-
ments of the plant. Murray testified that they were among the most
highly skilled and best-paid workers in the plant. The testimony
showed that all or nearly all of the buffers, polishers, and platers
were members of Local 171, and had been for many years. They are
the oldest organized group in the plant, and had signed a contract
with the respondent on May 17, 1937. Though the buffers, polishers,
and platers designated the I. A. M. to act as their representative in
June 1937, they still remained a distinct group. When the I. A. M.
signed its contract with the respondent on June 9, 1937, it left the
buffers, polishers, and platers to be covered in another contract
signed the same day. Witnesses for both the I. A. M. and the
respondent described the new contracts as "three cornered" or "three
jointed" affairs, involving the respondent, the I. A. M., and Local 171.
For these various reasons, we find that the production employees
of the respondent, exclusive of the buffers, polishers, and platers, and
excluding clerical and supervisory employees, constitute a unit ap-
propriate for the purposes of collective bargaining and that said unit
will insure to employees of the respondent the full benefit of their
right to, self-organization and collective bargaining and otherwise
effectuate the policies of the Act.
2. Representation by the U. A. W. A. of the majority in the appro-
priate unit
The plant normally, employs approximately 389 workers , exclusive
of the clerical and supervisory staffs. As of June 9 the respondent
employed 379 workers, 80 of whom were buffers, polishers, and
platers."a
23 Respondent Exhibit No. 10. The number of buffers decreased thereafter to 03.
DECISIONS AND ORDERS 521
At the hearing, the U. A. W. A. introduced cards showing that on
May 24, the date of the opening conference with the respondent, the
U. A. W. A. had 214 members, a clear majority of the entire plant.14
In its brief and supplementary brief, the respondent does not contest
the numerical figures given by the U. A. W. A. However, the
respondent argues that, due to the requirements of the U. A. W. A.
itself, not all these employees had become members or had designated
that organization. The respondent claims that on May 24 the
U. A. W. A. had only 121 members, and applications from 93 who
had never fully paid their initiation fees or obtained official receipts.16
The back of each membership card in the U. A. W. A. reads :
I hereby agree that this declaration and payment shall be the
ground of contract between the International Union, United
Automobile Workers of America and myself and if I fail to pre-
sent myself for obligation as a member within thirty (30) days
from date of notification, without good and sufficient reason, the
sum already paid or any further sum that may be paid by me to
the International Union, United Automobile Workers of Amer-
ica, shall be forfeited and myself deprived of all benefits or ad-
vantages therefrom.
The bylaws of the U. A. W. A. provide that applications shall be
accompanied by the initiation fee in full, and that the initiation fee
may not be less than $2. The respondent argues that employees are
not members until these conditions have been fully complied with.
Respondent also points out that there is no evidence that any applica-
tion was ever accepted by a majority vote of all members present, or
that anybody was ever initiated into the union, all as required by the
bylaws.
These contentions are based upon a misconstruction of the Act.
Section 9 (a) of the Act speaks of "representatives designated or
selected for the purposes of collective bargaining by a majority of
the employees . . ." In Matter of Clifford M. DeKay, Doing Busi-
ness Under the Trade Name and Style of D & H Motor Freight
Company and International Brotherhood of Teamsters, Chauffeurs,
Stablemen and Helpers of America, Local Union No. 649,16 the
respondent similarly relied upon the fact that some union members
had not paid their initiation fees, and others had not been voted
upon by the union. In holding that applications for membership
were sufficient, the Board stated that,
14 Board Exhibit No. 14. On May 28 the membership figure was 242, and on June 2 it
was 263
lG The figure of 93 evidently refers to those who had paid no sum at all , and those who
had paid only $1, the initiation fee being set at $2
1G 2 N. L it. B. 231.
522 NATIONAL LABOR RELATIONS BOARD
The Act says nothing about union membership. These appli-
cants by requesting membership in the Union indicated their
desire to have the Union act as their representative for the
purposes of collective bargaining and thereby selected the Union
for that purpose.17
The respondent and the I. A. M. claim that subsequent to May
24, a majority of the employees designated the I. A. M. as their
bargaining representative. At the hearing, to prove its majority,,
the I. A. M. submitted in evidence 167 application cards bearing dates,
prior to June 9, and a list of 18 additional names obtained from a
petition designating the I. A. M. as their representative.-
The record clearly shows that the signature and information on
many of these I. A. M. application cards were copied from slips of
paper which did not mention the I. A. M. The manner in which
these cards were signed was brought out late in the hearing. Joseph
Scanlon, an employee in the plant, testified that on May 27, he went
down to the corner behind Mann's office. in the little cubbyhole, and
saw Bell and Sanders. Bell asked Scanlon how long he had worked
at the plant, his age, and address, and wrote this information on a
blank piece of paper. When the paper was filled out, Scanlon signed
it. When Scanlon was shown an I. A. M. application card, bearing
his purported signature, he testified that he had never signed his
name to any such card.
It was then revealed and admitted by the I. A. M. that many of tha
application cards had been filled out, not by the persons whose
signatures they should have borne, but by officials of the I. A. M.
Not only was the information given on these slips of paper trans-
ferred to the application cards, but the signatures were reproduced,,
or, as in some cases, were obvious attempts to trace the signatures.
These slips of paper were blanks, containing no writing on the side:
on which they were signed ; on the reverse side, they varied from
time sheets and blank cards, to announcements of mass meetings
of the U. A. W. A.
At the hearing, Hamilton explained this procedure as merely
a matter of necessity, no cards being then available. When specifi-
cally questioned as to the reproduction of signatures on these cards,
and whether the transposing of other information also included
signatures, Hamilton said he was "quite sure that it would include
the signature". The card of Martin Thomas was shown to him, and
it was pointed out that what appeared to be the signature of Martin_
17 r 227.
18 Intervenor 's Exhibit No. 6A contains the names of 159 persons, Exhibit No. 7 contains
the names of 8, and Exhibit No. 8, the names of 18 , a total of 185 whose names have
dates marked on them preceding June 9. The I. A. M. also received 65 applications
between June 9 and July 2.
DECISIONS AND ORDERS 523
Thomas was not the same as that which appeared on the application
blank. Hamilton then said, "There is no doubt that has been re-
produced."
Hamilton stated that the employees knew they were designating
the I. A. M. At the oral argument, the I. A. M. admitted there
was no designation on any of these slips, and that the employees
might not have known whether they were signing social security
slips, employment cards, or some other type of card.
Furthermore, quite aside from these deficiencies, the slips and
cards were secured in many instances by Sanders and other super-
visory officials in the manner already described. Under such cir-
cumstances we cannot consider the purported designation of the
I. A. M. as representing the true and uncoerced choice of the
employees.19
The I. A. M. also submitted several petitions designating it as
exclusive bargaining representative. Some of, these were signed by
the buffers, polishers, and platers. One was secured during the
period of the strike. An examination of the record reveals that they
were all secured under conditions similar to those we have described
in regard to the application cards, and with the aid of the respond-
ent's supervisory officials. What we have said previously in this
connection applies with equal force to these petitions.
Later events disproved the claims of the I. A. M. and the re-
spondent in regard to the question of which organization represented
a majority. On June 16, 1937, when the respondent came to enforce
a closed-shop contract made with the I. A. M., it found it necessary
to discharge 158 employees, a majority of the employees in the ap-
propriate unit, for non-membership in the I. A. M., leaving only 141,
or at most, 151, in the unit.20 ' In the face of such a showing, it is
perfectly plain that the I. A. M. did not represent a majority of the
employees in the appropriate unit.
We find that on May 24, 1937, and at all times thereafter the
U. A. W. A. was the duly designated representative of the majority
of the employees in the appropriate unit and, pursuant to Section
9 (a) of the Act, was the exclusive representative of all the em-
ployees in such unit for purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions
of employment.
M Matter of Bradford Dyeing Association (U. S A.) (a corporation ) and Textile Work-
ers' Organtizing Committee of the C. I. 0.,,4 N L. R. B 604 , and Matter of National Elec-
tric Products Corporation and Radio Workers of America, Local No. 609, 3 N. L. It . B. 475.
20 On June 9 the respondent informed the State Labor Commissioner that it had 379
employees , of whom 80 were buffers, polishers , and platers . This information , given by
the respondent itself, is the closest employment figure we have to the date of the dis-
charges, June 16. However , the same conclusion would be drawn if the figure were 389.
524 NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
We have seen that by May 28 the respondent and the U. A. W. A.
had arrived at substantial agreement upon many of the terms of a.
contract. Thereafter the I. A. M. began its organization drive, and
began to negotiate with the respondent.
On June 1 the respondent offered both unions contracts, the last
clause of which provided that an election was to be held and that
the agreement of the union receiving the lesser number of votes
should be voided. Both unions declined to sign any such document.
On June 2 the U. A. W. A. filed its petition for certification with the
Board. On June 3 the U. A. W. A. undertook to sign the contract
the respondent had offered on June 1 and to agree to such an elec-
tion, but the respondent refused.
On June 5 officials of the respondent and the U. A. W. A. met at
the offices of Cowdrill, Regional Director of the Board, with whom
the petition had been filed. At this conference, the respondent sug-
gested that both unions submit their cards to Cowdrill, who would
then determine which union had a majority. The U. A. W. A.
consented, and the I. A. M. seems to have agreed to this procedure
when first informed of it. The count was to have taken place on
June 7, but on that date the I. A. M. refused to submit its cards.
Officials of the I. A. M. testified that they knew the U. A. W. A.
was claiming a majority all along, and that the U. A. W. A. was will-
ing to submit its cards, but that they "positively would not con-
sent to any consent election or alternative of having Cowdrill count
applications." The reason given by H. T. Hamilton, Grand Lodge
representative of the I. A. M., who repeated the assertion frequently,
was that, "until such time as the employer refused to bargain with
us that we would not submit our membership to anyone other than
the employer."
On the evening of June 8 the board of directors of the respondent
voted that a contract with the I. A. M. be signed. The respondent
asserts that a little earlier in the same evening its attorney, Gavin,
had examined the membership claims of the I. A. M. and found that
it represented a majority of the employees.
On June 9, at 11 a. m., the respondent and the I. A. M. conferred
with the State Labor Commissioner and his assistant to determine
whether the respondent could safely sign a contract with the I. A. M.
Both officials pointed out that charges had been filed with this Board,
and that the best way to settle the question would be to hold an elec-
tion, either before or after an agreement was signed.
To the warnings of the Commissioner and his assistant the respond-
ent and the I. A. M. turned deaf ears, and a few hours later a closed-
shop contract was signed. This contract covered all employees in the
DECISIONS AND ORDERS 525
plant, with the exception of buffers, polishers, and platers, and the
office and supervisory staffs. That same afternoon the respondent
and the I. A. M. signed another contract covering the buffers, polish- -
ers, and platers similar in terms to the contract signed with Local
171 on May 15.21
In view of the fact that the U. A. W. A. represented a majority
of the employees in the appropriate unit, the act of the respondent in.
signing the closed-shop agreement with the I. A. M. on June 9 consti-
tuted an open refusal to bargain with the U. A. W. A. The respond-
ent has advanced several reasons for the necessity of signing of the
contract, which we -,w ill now examine for the additional light they cast
upon the signing of the agreement.
The respondent insists that the threat of business loss was a serious,
factor in the situation. However, R. H. Duckwall, president of the
respondent, testified that it was not until June 9 that he received
notice that they would lose their annual contract with Chrysler if
they did not reopen the following day. Since this was the morning
after the board of directors had voted for the I. A. M. contract, it
is evident that the Chrysler ultimatum had nothing to do with the
decision to sign the agreement.
The audit by Gavin is similarly relied upon. Every report of this
count indicates that the figure he arrived at is as elastic and as variable
as the occasion seemed to demand. In his briefs, Gavin himself used
two different figures, and when Gavin and the I. A. M. appeared
before the State Labor Commissioner the morning after the count was
made, they submitted still a third figure.22 No explanation has been,
offered for the wide discrepancies.
The contentions of the respondent must also be weighed in the light
of several known facts. The transcript of the conference with the
Commissioner of Labor clearly shows that the respondent was aware
of the difficulties which might ensue if an impartial check of union
claims was not made. The respondent had realized that it could not
determine which union had a majority; had seen the utility of an
unbiased count, and had taken the initiative in asking both unions to,
submit to such a check. To sign a closed-shop contract with the union
which had consistently refused to submit its cards for the comparative
21 It was the claim of the buffers , polishers , and platers that their old contract with
the respondent had been abrogated by the strike of the U A w A on June 2 This
notion seems to have occurred to no one before June 8 However , since the respondent
agreed, the old contract was abrogated The new contract covering the buffets, polishers
and platels, with the exception of a few clauses is almost a copy of the earlier agreement.
Since we ha%e found that the buffers, polishers and platers, are not included within.
the appropriate unit, further reference to this second contiact of Time 9 is unnecessary
when further reference is made to the June 9 contract, the closed-shop contract covering
all the remaining production workers is meant
22 Respondent Exhibit No 10 It should also be noted that the figure submitted to the
Commissioner included the buffers and polisheis
.526 NATIONAL LABOR RELATIONS BOARD
tally, without even bothering to check the claims of the opposing union,
and notwithstanding the pendency of an investigation of the Board,
,can hardly be said to be conformable to the neutral policy the respond-
ent says it has maintained.
The Commissioner of Labor and his assistant were explicit in point-
ing out to the respondent and the I'. A. M. that complaint had first
been made to this Board, and that it has assumed jurisdiction; that the
only way of finally settling the dispute was to hold an election, either
before or after the signing of the contract; that the U. A. W. A. had
'submitted its membership cards showing a substantial majority, and
that they could not "sanctimoniously" give their approval to the sign-
ing of the agreement with the I. A. M. Gavin expressed his disap-
pointment and stated that they had hoped they would be able to pass
the responsibility for the signing of the contract on to the Commis-
sioner.
Though Duckwall testified that he was "disappointed that the I. A.
W. had not submitted its cards" to an impartial individual, the respond-
ent, in its own words, "took the bull by the horns", and signed the
-closed-shop contract.23
The circumstances described above further support our previous
,conclusions . We find that the respondent, on June 9, 1937, and at all
times thereafter, refused to bargain collectively with the U. A. W. A.
as the representative, of its employees in the appropriate unit in re-
spect to rates of pay, wages, hours of employment and other conditions
of employment. Indeed, the signing of the contract with the I. A. M.,
when, considered together with the course of conduct pursued by the
respondent, casts considerable doubt upon the good faith with which
the respondent at any time bargained with the U. A. W. A.
C. The discharges
On June 12 a notice was posted announcing the closed-shop con-
tract with the I. A. M. and informing employees that, in order to
continue to work at the plant, they must have joined the I. A. M.
no later than 7 a. in. on June 16. 14 On May 16, Frank Mann, plant
superintendent, told his men to ". . . call in two or three of your
C. I. O. people, and I will tell them this sad news that I am coin-
pelled to tell them" Mann said he assumed that Good, foreman in
the grille, would know which men were C. I. 0., "they just knew".
Thomas Bell and other members of the I. A. M. were present when
-Mann questioned employees and offered them a last chance to join
the I. A. M. Bell testified that he was the I. A. M. representative
at the plant that day, to see who was going to be discharged, and that
23 Respondent Exhibit No. 10.
"Board Exhibit No. 16.
DECISIONS AND ORDERS 527
he expected the I. A. M. to pay him for his services on that day.
The respondent admitted that on June 16 its foremen told "employees,
in large number" to join the I. A. M. or quit.
Relying upon the closed-shop contract the respondent discharged
approximately 158 men, 92 of whom were on the day shift.25 None of
these were buffers, polishers, or platers. Even though it resorted to-
the method of asking each employee whether he desired to join the
I. A. M. or be discharged, the respondent could not muster a majority
of the employees in the appropriate unit into the I. A. M. One hun-
dred and fifty-eight employees chose an outright discharge, and were,
told to get their pay.
Section 8 (3) of the Act provides that it shall be an unfair labor
practice for an employer ".by discrimination in regard to hire or,
tenure of employment or any term or condition of employment to-
encourage or discourage membership in any labor organization."
Obviously the closed-shop contract discriminated in favor of the
I. A. M. and is illegal unless it falls within the proviso to subsection
(3), which declares,
.. . That nothing in this Act . . . shall preclude an employer-
from making an agreement with a labor organization (not es-
tablished, maintained, or assisted by any action defined in this
Act as an unfair labor practice) to require as a condition of
employment membership therein, if such labor organization is
the representative of the employees as provided in section 9 (a) r
in the appropriate collective bargaining unit covered by such
agreement when made.
The closed-shop contract with the I. A. M. on June 9, does not.
fall within the proviso, for we have seen that, on June 9, the I. A. M.
was not the free choice of a majority of the respondent's employees
in the appropriate unit, and it had been assisted by unfair labor-
practices.26 The closed-shop contract is therefore invalid, and we
shall order the respondent not to give effect to it. We shall also-
order the respondent to resume its collective bargaining with the
U. A. W. A. as the representative of all the employees at its plant,,
with the exception of the buffers, polishers, and platers, and the
clerical and supervisory staffs.
Si Clifford Brown, personnel director of the respondent, testified that he had the task of
preparing checks for 158 employees who were discharged on June 16
mMatter of National Electric Products Corporation and United Electrical and Radio
Workers of America, Local No. 609, 3 N L. R. B. 475; Matter of Consolidated Edison
Company of New York, Inc., and its affiliated companies-Brooklyn Edison Company,
Inc ; New York and Queens Electric Light and Power Company; Westchester Lighting
Company; the Yonkers Electric Light and Power Company; New York Steam Corporation;
and Consolidated Telegraph and Electric Subway Company and United Electrical and
Radio Workers of America, affiliated with the Committee for Industrial Organization,
4 N. L R B 71; and Matter of Lenox Shoe Company, Inc and United Shoe Workers of
America, affiliated with the Committee for Industrial Organization , 4 N. L. It. B. 372.
528 NATIONAL LABOR RELATIONS BOARD
Since the contract is void and of no effect it cannot operate as a
defense to the discharges of June 16.
During the evening of June 16, the respondent sent special-delivery
letters to the discharged employees, notifying them that they were
to return to work "tomorrow morning, June 17, 1937, at your regu-
lar time", in view of the fact that the I. A. M. had "consented to
TEMPORARILY waive its contract requiring all employees to
belong to such Union".
At the request of the respondent ; 7 the I . A. M. mailed to all dis-
charged employees copies of a letter addressed to Duckwall , president
of the respondent . The list of employees ' names was furnished to the
I. A. M. by Gavin, attorney for the respondent. The letter con-
cludes : 28
For your information , we are sending a copy of this letter to
many of these men and women employers, who obviously have
made a serious mistake. We are not only urging them to return
to work, but upon doing so to make application for member-
ship in our Association . This is the right course for them to
follow, and those who accept this advice will never have any
justifiable cause to regret co-operating to the fullest extent with
your company through our Association.
Very truly yours,
(Signed) H. T. HAMILTON,
Grand Lodge Representative.
On the morning of June 17 the employees returned to the doors
,of the plant. Mark Thomas, the watchman at the plant, testified
that before employees were to be admitted , they were to have I. A. M.
,cards. He stated that he had not asked his boss whether he was to
ask for these cards, but that he did consult Hamilton, the representa-
tive of the I. A. M. Thomas also asked Dickson , son-in-law of
Duckwall about it, but allegedly only because Dickson happened to
be standing around that morning, and despite the fact that Dickson
had informed him (according to Dickson 's testimony ) on May 15
that he would no longer be giving him orders.
Men returning to the plant were asked for an I. A. M. card, and
when they could not produce one, were referred to the personnel
division. Those refused at the gates informed other employees, and
many did not bother to walk up to the gates.
After meeting with a committee of the U. A. W. A. the respondent
agreed to reinstate all the discharged employees, and to pay all these
employees for the time lost on June 16 ; but it refused to recognize
the negotiating committee of the C. I. 0., to permit a C. I. O. repre-
27 Respondent's Brief, p. 31.
21 Board Exhibit No 18.
DECISIONS AND ORDERS 529
sentative to address the employees , or to pay employees for the time
lost on the morning of June 17.
The respondent recognized its liability for wages the discharged
employees would have earned during the afternoon of June 16. The
Trial Examiner found that the refusal to permit employees to enter
the plant on June 17 was presumably due to a misunderstanding on
the part of the watchman . However, the watchman acted within
his authority in excluding the employees , and the respondent is
responsible for his actions . Moreover , it is hardly conceivable that
officials of the respondent did not know what was taking place at
the gates . We shall , therefore , order the respondent to pay the dis-
charged employees on the day shift the wages they would normally
have earned during the morning of June 17.
We find that the employees were discharged by the respondent
on June 16 because of their failure to join the I. A. M., and that
the respondent thereby discriminated in regard to hire and tenure
of employment in order to discourage membership in another labor
organization , and interfered with, restrained , and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Upon the whole record we find that the activities of the respondent
set forth in Section III above, occurring in connection with its oper-
ations described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, commerce, transportation, and com-
munication among the several States, and have led and tend to lead
to labor disputes burdening and obstructing commerce and the free
flow thereof.
THE PETITION
In view of the Board's findings in Section III A above, as to
the appropriate bargaining unit and the designation of the
U. A. W. A. by a majority of the respondent's employees in the ap-
propriate unit as their representative for the purposes of collective
bargaining, it is not necessary to consider the petition of the
U. A. W. A. for certification of representatives. Consequently the
petition for certification will be dismissed.
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. United Automobile Workers of America, Local No. 442, Inter-
national Association of Machinists, Local No. 1022, and Metal Pol-
530 NATIONAL LABOR RELATIONS BOARD
ishers, Buffers, Platers and Helpers International Union, Local No.
171, are labor organizations within the meaning of Section 2 -(5) of
the Act.
2. The respondent, by discharging and threatening to discharge
employees on June 16 because they would not join the International
Association of Machinists, and discriminating in regard to the hire
and tenure of employment of all such employees, and each of them,
thereby discouraging membership in United Automobile Workers of
America, Local No. 442, and encouraging membership in the Inter-
national Association of Machinists, has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the -exercise of the rights guaranteed in Section 7
of the Act, has engaged and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The production employees of the respondent, excluding the
buffers, polishers, and platers, and all supervisory and clerical em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
5. By virtue of Section 9 (a) of the Act, United Automobile Work-
ers of America, Local No. 442, having been designated as their rep-
resentative by a majority of the employees in an appropriate unit,
was on May 24, 1937, and at all times thereafter has been the exclu-
sive representative of all employees in such unit for the purposes of
collective bargaining.
6. By refusing and continuing to refuse to bargain collectively
with United Automobile Workers of America, Local No. 442, as the
exclusive representative of the employees in the above-stated unit,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Zenite Metal Corporation, its officers, agents, successors; and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers of
America, Local No. 442, or any other labor organization of its em-
ployees, or encouraging membership in International Association of
DECISIONS AND ORDERS 531
Machinists, Local No. 1022, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to their
hire and tenure of employment or any term or condition of their
employment because of membership or activity in connection with
any such labor organization ;
(b) Urging, persuading, warning, or coercing its employees to
join the International Association of Machinists, Local No. 1022,
,or any other labor organization of its employees, or discharging or
threatening them with discharge if they fail to join such labor
organization;
(c) Giving effect to its June 9, 1937, closed-shop contract with the
International Association of Machinists;
(d) Recognizing the International Association of Machinists,
Local No. 1022, as the exclusive representative of its employees, exclu-
sive of buffers, polishers, and platers, and clerical and supervisory
employees ;
(e) Refusing to bargain collectively with United Automobile Work-
ers of America, Local No. 442, as the exclusive representative of its
employees, with the exception of -buffers, polishers, and platers, and
clerical and supervisory employees;
(f) 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 rep-
resentatives of their own choosing, and to engage in concerted activ-
ities, for the purposes of collective bargaining or other mutual aid or
protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole all employees on the day shift discharged on June
16, and each of them, for any loss of pay they have suffered by reason
'of their respective discharges, by payment to each of them of a sum
equal to the amount each would have normally earned as wages
during the morning of June 17;
(b) Upon request, bargain collectively with the United Automobile
Workers of America, Local No. 442, as the exclusive representative of
its employees, with the exception of buffers, polishers, and platers,
and clerical and supervisory employees;
(c) Post immediately notices to its employees in conspicuous places
throughout its plant stating (1) that the respondent will cease and
desist in the manner aforesaid; (2) that the respondent's employees
are free to join or -assist any labor organization for the purposes of
collective bargaining with the respondent; (3) that in order to secure
or continue his employment in the plant, a person need not become
532
NATIONAL LABOR RELATIONS BOARD
or remain a member of the International Association of Machinists,
Local No. 1022; (4) that the closed-shop agreement signed with the
International Association of Machinists on June 9, 1937, recognizing
it as the exclusive representative of the employees of the Indianapolis
plant is void and of no effect; (5) that the respondent will bargain col-
lectively with the United Automobile Workers of America, Local No.
442, as the representative of the employees in the appropriate unit; (6)
that the respondent will not discharge, or in any manner discriminate
against members of the United Automobile Workers of America,
Local No. 442, or any person assisting said organization, by reason of
such membership or assistance; and maintain such notices for a period
of at least thirty (30) consecutive days from the date of posting;
(d) Notify the Regional Director for the Eleventh Region in
writing within ten (10) days of this Order what steps the respondent
has taken to comply herewith.
And it is further ordered that the complaint, in so far as it
alleges that the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act,
is hereby dismissed without prejudice.
The petition for certification of representatives, filed by United
Automobile Workers of America,, Local No. 442, is hereby dismissed.
Mn. EDWIN S. SMITH, concurring :
The industrial unit asked for by the I. A. M., which includes the
buffers, polishers and platers, is logical. Except for an important
fact which appears in this case, this more comprehensive industrial
unit should be preferred to the unit asked for by the U. A. W. A.,
which excludes the buffers, polishers and platers.
The decision points out the assistance given by the employer in
building up the present membership in the I. A. M. The I. A. M. is
the chief proponent of the larger unit. Acceptance of its contention
would have the effect of denying representation and collective bar-
gaining through the only industrial labor organization in this case
whose support is based on a spontaneous movement for self-organiza-
tion by the employees.
For this reason, I concur in the decision that the unit claimed by
the U. A. W. A. is appropriate.