Atlas Press Co.

National Labor Relations Board - Board Decisions

Jun 19, 1941

32 N.L.R.B. 863 (N.L.R.B. 1941)

In the Matter of ATLAS PRESS COMPANY and STEEL WORKERS ORGANIZ-
ING COMMITTEE, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. C-1796.-Decided June 19,1941
Jurisdiction : lathe, drill press, and related products manufacturing industry.
Unfair Labor Practices
Interference, Restraint , and Coercion : anti-union statements ; sponsoring straw
votes to deflect union sentiment.
Company-Dominated Union: assistance in formation of, by supervisory employee;
by expression of opposition to outside organization ; and by permitting circu-
lation of inside union petitions during working hours-support to : furnishing
meeting places and use of bulletin board ; permitting solicitation of dues and
elections during working hours ; entering into closed shop and check-off agree-
ment with dominated organization ; contributing money to inside union picnic ;
sponsoring straw votes in plant; discriminatory discharges.
Dtiscrmiination : discharges for union affiliation and activity.
Remedial Orders : company-dominated union disestablished ; contracts with
company-dominated union abrogated ; reimbursement of dues checked-off,
ordered ; reinstatement and back pay ordered.
Mr. Oscar Grossman, for the Board.
Angell, Turner, Dyer & Meek, by Mr. A. D. Ruegsegger, of Detroit,
Mich., for the respondent.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, affiliated with the Congress of Industrial
Organizations, herein called the S. W: O. C., the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Seventh Region (Detroit, Michigan), issued its complaint,
dated October 16, 1940, against Atlas Press Company, Kalamazoo,
Michigan, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1), (2), and (3)
32 N. L . R. B., No. 147.
863
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Copies of the complaint accompanied
by notices of hearing thereon, were duly served upon the respondent,
the-S. W. O. C., and Independent Union of Atlas Press Employees,
herein called the Independent., - -
In respect to the unfair labor practices, the complaint alleged in
substance (1) that the respondent has at various times since July 5,
1935, discouraged membership in the S. W. O. C. by certain acts,
such as informing its employees that it had knowledge of their mem-
bership in the S. W. O. C.; questioning its employees, as'to their union
activities; threatening them with discharge and other reprisals if
they joined the S. W. O. C. or refused to resign therefrom; vilify-
ing and maligning S. W. O. C. leaders and organizers; and conduct-
-ing a poll among its employees to discover the union sentiment among
them; (2) that in or about April 1937 the respondent formed, ini-
tiated, and sponsored the Independent, and thereafter interfered with
the administration thereof and contributed financial and other support
to it and also advised, urged, encouraged, coerced, and compelled its
employees to join, aid, and support the Independent; (3) that on or
about October 14, 1937, the respondent entered into an agreement with
the Independent which required all new employees of the respondent
to become members of the Independent as a condition of employment
at the plant; (4) that during the period from December 2 to 8, 1939,
the respondent discharged Allen- Johnson, Percy, Carter, Stanley-
Sudeikis, and Everett O'Connor and thereafter refused to employ
them because they had joined and assisted, the S. W. O. C. and had
engaged in concerted activities with other employees for the pur-
poses of collective bargaining and other mutual aid and protection ;
and (5) that by the foregoing and- other acts the respondent inter-
fered with, restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
Pursuant to notice, a hearing was held at Kalamazoo, Michigan,
from October 28 to November 2, 1940, inclusive, before William P.
Webb, the-,Trial Examiner duly designated by the Chief Trial Ex-
aminer. The Board and the respondent, were represented by counsel
and participated in the hearing. _ Full opportunity to be heard, to
examine. and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all, parties. At the beginning of
the hearing, the respondent filed its answer to the complaint in, which
it admitted the allegations of the complaint concerning the nature of
its business but denied that it had engaged in or was engaging in
the alleged unfair labor practices. At the conclusion of the hear-
ing, counsel for the Board moved to amend the pleadings to conform
to the proof in respect to names, dates, and other minor matters.
ATLAS 'PRESS COMPANY - . . 865
The motion was granted -without objection. During the course of The
hearing, the Trial Examiner made numerous other rulings on motions
and on objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no pre-
judicial errors were committed. The rulings are hereby affirmed.
On November 16, 1940, counsel for the Board, and counsel for the
respondent entered into a stipulation regarding, certain corrections
of the transcript, of testimony herein. On December 16, 1940, the
Trial Examiner issued an order correcting the transcript in conformity
with said stipulation. , On January 9, 1941, counsel for the Board filed
with the Trial Examiner a motion to correct the transcript in a certain
iespect, with. an accompanying affidavit in support of said motion.
The motion was duly served upon the 'respondent. On' January 15,
1941, the, Trial Examiner issued an order affording the parties an
opportunity to submit objections to the granting of said motion. On
January 21, 1941, the official reporter, at the hearing herein executed an
affidavit in which he stated, in substance, that an error in transcription
had been made and that the official record should be corrected in
accordance with the motion of counsel for the Board. On January
22, 1941, the respondent filed objections to the motion of counsel for
the Board and affidavits in support of such objections. On•January
27 the Trial Examiner issued an order granting the motion, ordering
that the various papers with respect thereto be made part of the record,
and that the transcript be corrected accordingly. These rulings of
the Trial Examiner are hereby affirmed. -
On January 28, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the S. W. O. C., He found therein that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the Act and recommended that the respondent cease and
desist 'therefrom and take certain affirmative action necessary to effec-
tuate the policies of the Act, including the disestablishment of the
Independent and the reinstatement with back pay of Allen Johnson,
Percy Carter, Stanley Sudeikis, and Everett O'Connor.- 'On February
20,' 1941, the respondent filed exceptions to the Intermediate Report
and, on March 3,1941, a brief in support of such exceptions:
On March 18, 1941; upon the respondent's request and pursuant to
notice, a hearing for the purpose' of oral argument was held before
the Board in Washington; D.^'C. The respondent was represented
by counsel who participated in the argument. ' The Board has con-
sidered the exceptions ' and brief of the respondent and, save as the
exceptions are consistent with the findings, conclusions, and order set
forth below, finds them to be without merit., ,,
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Atlas Press Company, is a Michigan corporation,
having its principal office and place of-business in Kalamazoo, Michi-
gan. It is engaged in the manufacture, sale, and distribution of
lathes, shapers, bench saws, drill presses, sanders, and other related
products. The principal raw materials used by the respondent in the
manufacture of its products are steel, cast iron, bearings, and paint.
Since the beginning of 1937 approximately 40 per cent of the annual
purchases of such raw materials has been made outside the State of
Michigan. From January 1 to October 31, 1940, the respondent pur-
chased raw materials having a value in excess of $1,150,000. Since
the beginning of 1937 the respondent has annually sold and delivered
to customers located outside the State of Michigan approximately
90 per cent of its finished products. From January 1 to October 31,
1940, such products amounted in value to more than $2,527,000. The
respondent employs approximately 425 employees. The respondent
admits that it is engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondent.
Independent Union of Atlas Press Employees is an unaffiliated labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; formation and domination
of the Independent
Prior to 1937 there were no unions or union activity in the respond-
ent's plant. In April and May of that year certain of the respondent's
employees joined the United Paper Mill Workers Local Industrial
Union 398, affiliated with the Congress of Industrial Organizations,
herein called the C. I. 0., as a temporary expedient, since there was no
S. W. O. C. local available. However, it was understood that as soon
as a sufficient number of the respondent's employees had joined the
C. I. 0., an S. W. O. C. local would be established in the plant and
these members would, be transferred to the new local.' At about this
i This was accomplished on December 2, 1939, at which time, as noted below, S. W. O. C.
Local No. 2167, affiliated with the C. I. 0., was duly chartered.
ATLAS PRESS COMPANY 867
time, Carl Peterson, the general foreman of the assembly department,
asked Orville Brewer, an employee in that department, whether the
latter would "rather have my foreman like him or somebody like that
tell me what to do than to have somebody from the outside come in
and tell me what to do ..."
During the latter part of June 1937 a renewed effort was made by
C. I. O. representatives to secure members among the respondent's
employees , with some degree of success. Frank Ingraham, a C. I. O.
organizer , visited the plant with a loud speaker and broadcast a
union talk to employees from the street. Handbills were distributed
outside the plant and one or two were posted in the plant. These notices
stated that an open meeting of the respondent's employees would be
held in the Peoples Baptist Church for the purpose of organizing an
S. W. O. C. local. According to the testimony of Brewer, Assistant
Superintendent Wesley Emmons tore down one of these notices which
was posted near the timeclock in the plant. Emmons admitted seeing
a C. I. O. notice posted in the plant about this time but denied having
torn one down. In view of Emmons' general incredibility as a wit-
ness,2 his opposition to the S. W. O. C. as shown by his subsequent
participation in the discriminatory discharges discussed below, and the
entire record, we find that this incident occurred substantially as testi-
fied to by Brewer. During this period- the respondent laid off a
number of employees, some of whom were affiliated with the C. I. O.
The day following these lay-offs, Al Reed, foreman of the machine
shop, said to W. J. Lee, an employee, "Well, kind of looks like they
are getting rid of all the C. 1. 0. boys."
In the latter part of June 1937 a movement to organize the In-
dependent was begun by N. H. Northrup, a millwright in the main-
tenance department, Gardner Avery and Medard Ticknor, employees
in the machine shop, John Potts, a subforeman 3 in the paint shop,
and Chester Emmons, brother of Assistant Superintendent Emmons.
According to Northrup, one.reason for organizing the Independent
was "to keep . . . the men from joining the C. I. 0." A number of
petitions were circulated on behalf of the Independent. These peti-
tions stated that the signer applied for membership in the Independ-
s Compare , infra, his testimony concerning the discriminatory discharges.
The respondent disputes the supervisory status of Potts at the time of the formation
of the Independent . In June 1937 there were five painters in the paint shop, a subdivision
of the assembly department . At that time Potts, while engaging in painting with other
employees in his department , admittedly was "head man" in the paint shop and admittedly
was responsible for production there and told the employees what tb paint. ' His duties
also included reporting to Foreman Peterson regarding the performance of the paint-shop
employees and checking on such performance . At the hearing at least two employees
referred to Potts as their "foreman" in June 1937 A third employee testified that in
1937 Potts was a "foreman" or "straw boss " in charge of the paint-shop employees. We
find that Potts was a supervisory employee at the time of the formation of the Independent
and that the respondent is responsible for his activities in its behalf at that time
448692-42-vol 32--8G
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent and that he designated a Board of Directors, which was to be
elected, to be his sole representative for the purpose of collective
bargaining with the respondent. About 172 signatures were ob-
tained. At that time, there were about 225 non-supervisory, em-
ployees in the plant.
According to the testimony of witnesses for the Board, these peti-
tions were circulated openly during working hours in the assembly
and shipping departments of the plant by Ticknor and Potts and at
least Ticknor spent a considerable amount of time circulating one or
more of these petitions when the foremen of the above departments
were on duty. . Ticknor, while admitting having circulated a peti-
tion in the assembly department during working hours, testified that
he did so "under cover"; and Northrup, while admitting it was "just
naturally understood amongst the whole shop" that the petitions
were "around," testified that the Independent organizers tried to
hide the circulation of the petitions from the foremen. While As-
sistant Superintendent Emmons, Foreman Peterson, and Wilmer
Dehoff, foreman of the shipping department, denied knowledge con-
cerning the circulation of these petitions and Potts denied having
circulated a petition, in view of the general unreliability of these
witnesses for the respondent,4 the circumstances under which the
petitions were circulated, and the findings of the Trial Examiner,
who has accepted the testimony of the Board witnesses in this re-
gard, we find that the petitions were openly circulated in the plant
during working hours with the knowledge of at least some super-
visory employees and that at least one supervisory employee, Potts,
assisted in the circulation of the petitions.
In the latter part of June a preliminary organizational meeting of
the Independent was held at the Bungalow Inn near the plant, and
Northrup was chosen temporary chairman. A committee was ap-,
pointed to call upon Schaberg, a local attorney-at-law, for the purpose
of preparing a constitution and bylaws. Potts was on that commit-
tee. Schaberg agreed to prepare the documents for a fee of $150.
Schaberg had had some previous experience in forming, inside unions.
4 Ticknor , for example , testified that he did not know of any organizing activities on
behalf of the C. I. O. at the respondent 's plant in 1937, and that to his recollection the
first organizational campaign by the C. I. O. at the plant took place about a year after
the Independent was organized . Ticknor , however, was one of the organizers of the Inde-
pendent, which was admittedly formed to keep employees from joining the C I 0.
Northrup was an evasive witness with respect to the circulation of these petitions in the
plant and also with respect to the holding of elections far Independent directors in the
plant during working hours. With respect to the general unreliability of Emmons and
Peterson, see infra, their testimony concerning the discriminatory discharges . Dehoff at
first denied and then admitted having heard about the petitions , although he denied
having known about their circulation . Dehoff also gave contradictory and evasive testi-
mony concerning his knowledge of C. I. 0. organizing efforts in the plant. Potts at
one point denied ever seeing a petition circulated in the plant in 1937 , and at another point
admitted having himself signed an Independent petition in that year in the plant in the
presence of a group of employees
ATLAS PRESS COMPANY 869
During the formative period of the Independent Potts joined that
organization, attended one or more meetings thereof, and admittedly
solicited other employees to join. Brewer testified that when he re-
turned to work in July 1937 after a lay-off, Subforeman Potts told
him that he had better join the Independent in order to keep his posi-
tion. Although Potts denied having made this statement, in view of
his admitted activity in behalf of the Independent and his general
incredibility, referred to above, his denial is not convincing. We find
that he made the statement substantially as testified to by Brewer.
Willard Thomas, assistant foreman of the assembly department, told
Allen Johnson, an employee, prior to his signing one of the Independent
petitions, that the C. I. O. was a communistic organization, and that
it was a good organization to stay out of. Shortly after the formation
of the Independent, Thomas told Johnson that he thought that the
Independent was " a good thing."
The first meeting of the general membership of the Independent
was held in the Eagles' Hall on June 24. The meeting was well at-
tended. Schaberg was present and presented the constitution and by-
laws, which were adopted. They provided for officers and a Board of
Directors consisting of 12 members to be elected annually from the
different departments of the plant by the Independent members of
such departments. Officers and directors were elected at this meeting.
The Board of Directors was the supreme governing body of the
Independent and was, upon recognition, to function as the sole repre-
sentative for the purposes of collective bargaining with the respondent
in regard to wages, hours of employment, and other working condi-
tions. The Board met every 2 weeks and a majority constituted a
quorum. The president of the Independent was an ex officio member of
the Board and presided at directors' meetings. The only meeting
of the membership provided for by the bylaws was an annual meeting
at which officers and directors were to be elected. Under the provisions
of the constitution and bylaws the Independent could not be dissolved
except by the affirmative vote at a regular or special meeting of two-
thirds of the members who were in good standing.'
Elections for members of the Board of Directors were conducted
in the plant by ballot, during working hours, without interference
from supervisory employees, and without loss of pay to the employees
participating. All regular meetings of the Board of Directors were
held in the general offices of the plant free,of charge with the ex-
press permission and approval of John Penniman, president of the
respondent, from about June 25, 1937, to December 15, 1939, after
which time the meetings were held at the Bungalow Inn.
The Independent was permitted by the respondent to post all its
notices in the plant. When the Independent was first organized its
notices were posted on the same bulletin board as the respondent's
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices. Later, a special bulletin board, made of scrap lumber picked
up in the plant, was put up by the Independent with the permission
of the respondent. On the other hand, the respondent's attitude
toward the posting of C. I. O. notices in the plant is indicated by the
action of Assistant Superintendent Emmons, noted above, in tearing
down a C. I. O. notice.
Prior to the execution of the check-off agreement with the Inde-
pendent, which is discussed below, dues on behalf of the Independent
were solicited in the plant during working hours in the presence of
foremen and on one occasion Subforeman Potts informed an employee
that the secretary-treasurer of the Independent desired to see him
regarding payment of dues, and this employee thereupon paid his
dues to the secretary-treasurer during working hours.
Within a few days after the formation of the Independent on June
24, 1937, and the institution of the Board of Directors, Penniman,
at his own request, was given, permission by the directors to attend
their meetings at least once each month and thereafter he attended
a considerable number of these meetings. At a meeting of the direc-
tors on June 25, Northrup, president of the Independent, reported
that Penniman was ready and willing to recognize the Independent as
the sole agency for purposes of collective bargaining.
At the next meeting of the directors on June 28, Penniman, who
was present, agreed to recognize the Independent in writing and indi-
cated his approval of a closed-shop contract with the Independent.
On July 26, the annual meeting of the Independent was held. The
principal matters discussed at subsequent meetings of the directors
were a working contract, a closed-shop agreement, and the check-off
system. Penniman was quite favorable to these requests. At the
meeting of the directors on August 19, Penniman, James Collins, the
general superintendent, and Assistant Superintendent Emmons were
present.
On September 1, 1937, the respondent entered into a contract with
the Independent recognizing its as the exclusive representative of all
production employees for the purposes of collective bargaining with
the respondent in regard to rates of pay, hours of employment, and
other terms and conditions of employment. The contract was exe-
cuted for 1 year, and ran thereafter from year to year unless termi-
nated by either party by giving thirty (30) days' notice in writing
prior to the expiration of the contract year. The contract was still
in force and effect at the time of the hearing.
In the first part of October 1937 a petition was circulated in the
plant, during working hours, without objection from any supervisory
employee, for the purpose of securing the approval of members of
the Independent for a check-off system. Employee Floyd Scott, spent
about 45 minutes in his department; circulating this petition during
ATLAS PRESS COMPANY 871
working hours. After completing its circulation, Subforeman Potts
asked him, "How did you make out with that ... did you get them
all?"
During the same month, Scott, as a member of the grievance com-
mittee of the Independent, took up with the respondent a grievance
affecting two employees. Shortly thereafter, Scott, together with some
other employees, was laid off. According to his testimony, which was
corroborated by that of employees William Stinson and Wilford Lee,
Assistant Superintendent Emmons told Scott, at or about the time of
his lay-off, that he had been selected for lay-off because he had com-
plained to the respondent regarding the aforementioned grievance.
While the respondent adduced testimony to show that it laid off a
number of employees in 1937 because of business conditions, Assistant
Superintendent Emmons in his testimony did not deny having made
the foregoing statement to Scott. We find that the respondent laid off
Scott in November 1937 because, as a member of the grievance com-
mittee of the Independent, he had taken up with the respondent a
grievance affecting two employees.
On October 14, 1937, the respondent entered into a closed-shop and
check-off agreement with the Independent. This contract, terminable
upon thirty days' notice, provided that employees thereafter employed
by the respondent would be required to join the Independent within
thirty 'days after such employment and that unless they did so they
would no longer remain employees of the respondent. This provision
of the contract was not enforced after February 1939. Prior to that
time, while 'it is not clear that the provision was strictly enforced, the
respondent admittedly advised new employees that they were expected
to join the Independent.
The contract also provided that upon request of the members of
the Independent, their monthly dues would be deducted from the;r
wages, by the respondent, and paid over to the Independent. Such
dues were 50 cents per month for each member. The respondent de-
ducted dues in behalf of the Independent from November 12, 1937, to
the time of the hearing. At least one employee had his dues deducted
without having authorized such deduction. The respondent paid to
the Independent the total amount so collected each month and then
the Independent paid to the respondent 7 per cent of the amount
collected.
Attorney Schaberg drafted both contracts between the Independent
and the respondent. Little, if any, controversy existed between the
parties with regard to the execution of either contract. Penniman
admittedly saw no membership records of the Independent prior to
recognizing that organization as representative of a majority of the
employees. He testified that he made several inquiries of Superin-
tendent Collins and officers of the Independent regarding the matter of
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority representation, and that he had "no reason to doubt" their
'word.
In 1938 Ticknor was president of the Independent. He was charged
by certain of the members thereof with having accepted certain pro-
posals of Penniman on behalf of the Independent without submitting
them to the Board of Directors for their approval. A petition was
therefore circulated in the plan seeking his removal from office. About
this time, Ticknor had agreed to a 15-per cent general wage reduction,
without consulting the Board of Directors. Ticknor had also agreed,
despite the closed-shop contract and without consulting the Inde-
,pendent, that Penniman could reinstate 5 employees who were mem-
bers of the C. I. O. who had been di,;charged in July 1938. Ticknor
had authorized Penniman to rehire the 5 employees for about 2,weeks.
The evidence indicates that the respondent rehired them in order to
secure the cancellation of charges which these employees had filed
against the respondent with the Regional Office of the Board.
Ina conference between Penniman and the Independent directors
held at about this time Penniman expressed his opposition to the
C. I. O. by telling the directors, "You boys don't want the C. I. O.
in here.. . the sky is the limit with them."
Employee Wilford Lee, a member of the C. I. 0., testified 'that in
the fall of 1938 he and Potts were discussing the recent discharge of
employee Lee Wadell and that Potts said, "That is what you get if
you don't belong to the Independent Union. If he belonged to the
Independent Union he would not have got fired." Potts denied having
made this statement to Lee. However, in view of Potts'•active part
in organizing the Independent and all the evidence in the record, we
find, as did the Trial Examiner, that his denial is not convincing, and
we further find that he made the foregoing statement substantially
as testified to by Lee.
On February 28, 1939, the respondent posted the following notice
in the plant:
The Atlas Press Company, Inc., of Kalamazoo, Michigan, takes
,this opportunity to make clear to its employees that:
-1. It has no intention to interfere in any manner or to restrain
or coerce its employees in the exercise of their rights to self-or-
ganization, to form, join or assist any labor organization, and to
bargain collectively, through representatives of. their own choos-
ing, subject to Section 8, Subsection 3 of the National Labor
Relations Act.
2. It will not encourage, membership in the Independent Union
of Atlas Press Employees or discourage membership in any labor
organization by discrimination in regard to hire or tenure of
employment, or by any terms or conditions of employment or by
ATLAS PRESS COMPANY 873
threats of discrimination, subject to Section 8, Subsection 3 of the
National Labor Relations Act.
3. It will not contribute financial or other support to that
employees organization or to any labor organization of its
employees.
This notice was given to Penniman by a representative of the Board,
who said, according to Penniman, "If you will post this notice upon
your bulletin board, your skirts are clean with the Labor Board and
our past files are destroyed and forgotten."
During an election for an Independent director, which was held
in the plant in June 1939, Potts, who had become assistant general
foreman of the assembly department,5 actually conducted the election
himself and campaigned for one of the candidates. Potts retained.his
membership in the Independent and paid dues therein until October
1940. He attended a meeting thereof as late as December 1939.
On another occasion, shortly prior to the election of Percy Carter
as a director of the Independent in July 1939, at a time when Carter
was active in attempting to make the Independent an effective col-
lective bargaining agency, Foreman Reed told Albert Van Huis, a
machine-shop employee, "Be sure and vote for Percy Carter . . . re-
member if you do, you get laid off in about two weeks and maybe
the whole shop."
For some years, it had been the practice of the respondent to give
its employees an annual picnic each summer, paying the necessary
expenses and making the arrangements for it. The picnics were held
on Saturday and all the employees were given a half-day holiday with
pay.
In July 1939, Earl Roe, an employee and a director of the Inde-
pendent, was delegated by the Independent to see Penniman in regard
to the picnic to be held that summer. Roe talked to-Penniman and was
told that on account of the Act the respondent would not be willing
to arrange for the picnic that year, but would pay approximately one-
half of the expenses thereof up to $200. On September 21, several
weeks after the picnic had been held, the respondent gave the Inde-
pendent a check for $214.59 as its part of the expenses of the picnic.
While Penniman testified that he had no knowledge that the picnic
was to be sponsored by the Independent at the time he agreed to con-
tribute to the expenses thereof, his testimony is not convincing in view
of the fact that in the absence of such knowledge by him, no reason
appears why the respondent should have changed its previous practice
of arranging for a picnic for the benefit of its employees. Moreover,
Penniman testified that the decision to change the respondent's previ-
s Potts became assistant general foreman in the latter part of 1938. As assistant general'
foreman he no longer painted with other employees
874 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
ous practice with regard to its sponsoring such a picnic was made by
himself, Superintendent Collins, and Assistant Superintendent Em-
mons, and Collins admittedly understood a few days before the hold-
ing of the picnic that it was to be an Independent affair. On the morn-
ing of the day of the picnic, Penniman saw placards on motor cars
about the plant, which stated that the picnic was Independent-spon-
sored and Penniman admittedly knew on September 21 that the picnic
had been sponsored by the Independent. We find that the respondent
agreed to and did contribute to the expenses of this picnic with full
knowledge that it was an Independent picnic.
After the election of the Board of Directors of the Independent in
July 1939, the new directors secured an amendment to the constitution
and bylaws providing for monthly rather than annual meetings of the
entire membership of the Independent. The reason for this was that
they wished to stimulate more interest in the Independent.
In September 1939 the Independent conducted unsuccessful nego-
tiations with the respondent concerning working conditions., As a
result, the Independent directors became dissatisfied with it as a bar-
gaining agency and a movement to affiliate with the C. I. O. developed.
Percy Carter and Allen Johnson, directors of the Independent, Everett
O'Connor, and Stanley Sudeikis, president of the Independent, were
active in the movement for C. I. O. affiliation.
At a meeting of the Directors of the Independent held on September
25, Allen Johnson asked Penniman for the restoration of a previous
wage reduction and for a wage increase. Penniman refused both re-
luests. At a meeting of the directors held on October 27, Arley Smith,
me of the directors, reported that Penniman had told the executive
committee that he would on Monday, October 30, establish a wage
and hour policy which was unacceptable to the Independent. At this
meeting it was decided to hold a special meeting of the entire member-
ship of the Independent to determine how many members were in
favor of affiliating with the C. I. O. or the A. F. of L. The meeting
was held in November; Sudeikis, Carter, O'Connor, and Johnson, who
were strongly in favor of affiliating with the C. I. 0., spoke in favor of
such affiliation. A vote was taken and it was decided to do so. It was
further decided to post a notice on the bulletin board in the plant that
a meeting would be held in the East Side Community Hall on the
evening of Saturday, December 2, 1939, to complete the affiliation with
the C. 1. 0. and draft a proposed working agreement with the respond-
ant. The notice, which was signed by Sudeikis, was posted in the
plant several days prior to the date set for the meeting and was seen
by Assistant Superintendent Emmons.
At this time, a majority of the directors were in favor of affiliating
the Independent with the C. I. O. In fact, about seven directors had
been members of the C. I. O. for some time. However, three of
ATLAS PRESS COMPANY 875
them, Claire Patnode, Arley Smith, and Cecil Fuhrman, were opposed
to effecting such affiliation.
About the middle of November a temporary S. W. O. C. local,
whose temporary officers included Johnson as president, Carter as
financial secretary, and O'Connor as guide, had been established.
On December 1, the day before the meeting scheduled for completion
of C. I. O. affiliation, there appeared in the time-card rack of each
employee, a ballot which stated as follows:
EVERYONE MUST VOTE
NAME -------------------------------------- CLOCK No. ------
This is merely it straw vote to determine shop sentiment.
Are you in favor of continuing Independent Union? -----------
Are you in favor of affiliating with the C. I. 0.? ---------------
Are you in favor of no Union? ------------------------------
A ballot box was placed near the time-card racks and, as the employees
quit work that afternoon, they secured the ballots and a majority of
them voted. While the employees were voting, Smith, Patnode, Lee
Stimson, the respondent's timekeeper, and Leo Bovee, the respond-
ent's time-study man, were standing near the ballot box. After the
ballots were cast, a deputy sheriff came to the plant and counted the
votes. The results of the straw vote were then posted on the plant
bulletin board. It showed that a majority had voted to continue the
Independent. Superintendent Collins had arranged for the printing
of the ballots by office employees of the respondent on the respondent's
paper and with the respondent's copying machine. Subsequent to
the straw vote, the respondent submitted a bill to the -Independent
in the sum of $1.50 for the ballots. Payment was refused by a ma-
jority of the directors of the Independent because they had not
authorized the straw vote to be taken and knew nothing about it
prior to finding the ballots in their time-card racks.
Penniman admitted that in the fall of 1939 he had a conversation
with Smith in which he asked Smith, to "get the sentiment of the
men," and also admitted permitting Smith and Patnode to conduct
the vote in the plant. Penniman further testified that "We were
having discussions all over the plant at that time, groups of men
everywhere, and work was apparently slipping off and my reaction to
it was that, to find out what they wanted. I didn't know what they
wanted. I didn't know what they wanted and no matter what it was
I wanted to know." The evidence discloses that neither the employees
nor the directors of the Independent, except Patnode, Fuhrman, and
Smith, knew anything at all about this straw vote prior to finding the
ballots in their time-card racks, and the matter of taking a straw
vote had not been discussed at the meetings of the directors of the
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent. It is a' most significant fact that the straw vote was
taken just the day before the date of the meeting of the Independent,
at which the. matter of affiliating with the C. I. O. was to be con-
summated.
We find that the respondent initiated and sponsored the straw
vote 'of December 1, and not merely in an effort to learn the union
sentiment in the plant. The fact that the ballots were placed in the
time-card racks was sufficient evidence to the employees that it was
an order of the respondent that they "must vote." Only supervisory
employees had control over the time-card racks. It is thus plain,
and we find, that the straw vote was, in fact, a device used by the
respondent to force its employees to express preference for the Inde-
pendent and to defeat the organizational drive of the C. I. O.
A few hours before the Independent meeting to affiliate with the
C. I: O. took place, Johnson, Carter, and Sudeikis,a three of the four
employees most active on behalf of affiliating the Independent with
the C. I. 0., were discriminatorily discharged, as found below, because
of their affiliation with and activity in behalf of the C. I. O.
The Independent met on December 2 at the Hungarian Hall.
Sudeikis presided.. There were 60 or 70 members present. A motion
was made and carried to affiliate with the C. I. O. However, accord-
ing to the constitution and bylaws of the Independent, it required a
vote of two-thirds of the entire membership to effect the dissolution
of the Independent, and this two-thirds vote was not secured and
the affiliation was never accomplished. Kiser, a C. I. O. representa-
tive, presented an S. W. O. C. charter at this meeting which estab-
lished S. W. O. C. Local 2167 and officers were elected. Sudeikis
was elected president, Carter was elected secretary, and Johnson was
Also elected an officer. It was decided to defer any further action
on affiliation until Johnson and Carter had been reinstated by the
respondent.
In June 1940 Penniman requested Arley Smith to come to his office
and he did, accompanied by Walter Jasiak, acting president of the
Independent. Penniman asked them to ascertain the sentiment of the
employees with respect to continuing the Independent, because a
representative of the Regional Office of the Board had discussed with
him the discharges of the employees mentioned above and of Everett
O'Connor in December 1939, and had suggested that the respondent
reinstate these employees and disestablish the Independent. Shortly
thereafter, the Independent, pursuant to the respondent's request, took
a vote in the plant to determine whether or not the employees wanted
G The discharge of Sudelkis became effective on December 2, but he was not informed
of this fact until December 4•
ATLAS PRESS COMPANY 877
to dissolve the Independent. About 150 voted to dissolve the Inde=
pendtn and about 60 to continue it.
Following this vote, Slater, secretary of the Independent, posted a
notice on the plant bulletin board advising that those voting to dis-
solve the Independent did not constitute two-thirds of the membership
and, therefore that the Independent had not been dissolved.
The conduct of the respondent above-described clearly shows that
it was unalterably opposed to the C. I. O. from the spring of 1937.
It participated in the formation of and supported the Independent
for the purpose of preventing the C. I. O. from penetrating the plant.
That the respondent's anti-union bias continued thereafter is. shown
by the following incident : At a conference which some of the Inde-
pendent directors had with Penniman in November 1939, Penniman
said to Allen Johnson, according to Johnson's testimony, "Now about
the C. I.O. I understand you are a ring leader in that outfit." John-
son replied that he was not the ring leader but that he was a member
of the C. I. O. Penniman also said at that meeting that he did not
see why it was necessary to have the C. I. O. in the plant and that
they "could do better with the Independent union." Johnson replied,
"Well, evidently the Independent union has not been getting us any-
where and the C. I. O. is an aggressive organization that will go to
bat for us for anything we want done if we join up with them, they
won't put it off for six months or anything else, and for that reason
I believe in them now." Penniman then asked Smith and Fuhrman if
there were any complaints in their departments, and they replied,
in the negative. Johnson then said that the employees in his depart--
ment were continually complaining, and that he could not understand,
why Smith and Fuhrman would always agree with the directors 'at
their meetings but would always reverse themselves when meeting
with' the respondent and agree with the respondent. Johnson -fur-,
ther testified, "I told Mr. Penniman I was thoroughly disgusted with'
the actions of these other men for their attitude toward bargaining
and the Union, and that if that was the kind of an outfit it was I was
going to resign from it and that would be the last conference I would
have with him pertaining to any bargaining rights of the Independent
union." Penniman did not substantially deny the foregoing testi-
mony of Johnson. Penniman testified, "I might have asked him if
he belonged to the C. I. 0., I don't recall. I don't think I told him
he was a ring leader. I might have told him he was causing us some
trouble." We find, as did the Trial' Examiner, that Penniman made
the statements substantially as testified to by Johnson.
Further illustration of the respondent's continued anti-union atti-
tude is provided by the following incidents : In June 1940 Albert Van.
Huis, a machine-shop employee, and Foreman Reed were- talking about,
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the war; Reed said that this country could not help being at war with
%11 the Communists and bums and that "John L. Lewis will be there
with his gang to blow up some factories." Van Huis was subpenaed
to testify at the hearing and when he informed Reed of this, Reed said
to him, "So you are one of Percy's gang, too." Van Huis replied in
the affirmative and then Reed said to him, "I suppose you -rant to be
one of those who want to get laid off, too . . . or expect to lose his job."
Reed was referring to Percy Carter, one of the discharged employees.
On another occasion, after the discharge of Carter, Reed told Van Huis
with reference to the S. W. O. C., that "all the union was after is your
money... They were not ... there to represent the men."
The respondent assisted in the formation of the Independent not
only through the activity of Potts, and by expressing its opposition to
the C. I. 0., but also by permitting Independent petitions to be circu-
lated in the plant during working hours. After its formation the re-
spondent supported the Independent, and interfered with, and domi-
nated its administration, by furnishing its Board of Directors with a
meeting place; by permitting Independent notices to be posted in the
plant ; by permitting the solicitation of dues for the Independent in
the plant during working hours; by permitting and by interfering
with the conduct of Independent elections in the plant during working
hours; by entering into a closed-shop and check-off agreement with
the Independent; by checking off dues pursuant to this agreement and
by advising new employees to join the Independent in view of the
closed-shop provision; by contributing money to the Independent pic-
nic; by sponsoring straw votes in the plant for the purpose of deflecting
sentiment from the S. W. O. C.; by the lay-off of Scott in November
1937, and by the discriminatory discharges of the four employees whose
cases are discussed below; and by the various anti-union statements
noted above. It is clear that the effect of the posting of the notice
of February 28, 1939, was nullified by the respondent's subsequent
unlawful conduct.
We find that the respondent has dominated and interfered with the
formation and administration of the Independent and has contributed
financial and other support to it, and has thereby, and by the various
acts enumerated in the preceding paragraph, interfered with, re-
strained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discriminatory discharges
The complaint alleges that the respondent discharged and there-
after refused to employ Allen Johnson, Percy Carter, Stanley Sudeikis,
and Everett O'Connor because they joined and assisted the S . W. O. C.
and engaged in concerted activities with other employees of the re-
ATLAS PRESS COMPANY 879
spondent for the purposes of collective, bargaining and other mutual
aid and protection. ,
The respondent admits that it discharged these four employees,
but denies that they were discharged for the reasons alleged in the
complaint. The respondent contends that Johnson, Carter, and Su-
deikis were discharged for leaving their work and talking with other
employees and that O'Connor was discharged because he violated the
respondent's rules in respect to smoking in the plant, and because of
his inefficiency.
1. Johnson, Carter, and Sudeikis
The following occurrences in connection with the discharges of
Johnson, Carter, and Sudeikis throw light on the motivation thereof
and should be considered in connection with the case of each.
The decision to discharge these three employees was made by Super-
intendent Collins and Assistant Superintendent Emmons on Decem-
ber 2, the day of the discharges. On that day, several hours before
the discharges took place, Penniman was consulted by Collins and
told why Collins desired to discharge these employees. Penniman
told Collins to use his own judgment in the matter.
Penniman testified that Collins told him that the three employees
had created a lot of "trouble" in the plant. Penniman, at the
hearing defined this "trouble" as the gathering of employees in groups
and their talking during working hours. He further testified that
the three employees had been creating "disorder" for a long period
of time and that "the union might have been the source of what
the trouble springs from, but as far as the union goes it means nothing.
It was the disorder, the groups of fellows around and the discussions
and I understand there were threats of violence and so on and so
forth, for a couple of months." Collins testified that the conduct of
the three employees in not working as they should and in talking had
the effect of breaking down morale in the plant and slowing up
production and that Emmons first complained to him that he was
dissatisfied with the conduct of Carter, Johnson, and Sudeikis about
2 months before they were discharged. Prior to that time he had
received no complaints about them. On the day of their discharge
Emmons told Collins that he had "got to the end of his nerves" so
far as these employees were' concerned and "something should be
done." Emmons testified that the three employees had been' leaving
their work and talking for about 2 months, that at about 4 p. m., on
December 1, he saw the three standing and talking in the in
shop but said nothing to them, and that'the next' day he recommended
their discharge. Penniman, in his testimony, placed the conversa-
tion last mentioned by Emmons on the day of the discharges and
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further testified that he had "told the Committee" (apparently re-
ferring to an S. W. O. C. committee which came to see him on De-
cember 8 concerning the reinstatement of the discharged employees)
that the main reason for the discharge of the three employees at that
particular time was their last-mentioned conversation in the machine
shop. Penniman further testified that Collins' objection to the con-
duct of these employees at that particular time was with respect to
the afore-mentioned conversation. Collins, in his testimony, did not
attribute the discharges to this particular incident and testified that he
did not remember Emmons' telling him on December 2 that the three
employees had done something requiring their immediate discharge;
nor did he remember telling Penniman that the three had been talking
in the plant that day. Sudeikis, Johnson, and Carter denied having
had the conversation in question on either December 1 or 2. In view
of the general incredibility of Emmons and Penniman T and the
.entire record, we credit the denials of Carter, Johnson, and Sudeikis
with respect to this incident.
On December 7 Penniman wrote the following letter to the Michigan
Unemployment Compensation Commission :
Mr. Emmons has asked me to write to you with reference to our
reason for discharging Allen Johnson and Percy Carter.
These men created a really unbearable situation in our factory and
the agitation which they caused, we believe, hurt us to a very con-
siderable extent. We have been having threats of violence and
in one instance , I am told, one of our employees was informed
that it was quite likely that he might be bumped off. New men
-coming here to work have been intimidated by threats of violence
if they do not join up with the Union. All evidence points to
these two fellows with a man by the name of Sedekis as the pro-
moters, or ring leaders in the disturbance.
It makes no difference to us what Union these fellows belong to as
long as there is no disorder, or violence about it and our produc-
tion is not impaired. These men carried the matter entirely too
far.
As far as I have found out, there, seems to be a feeling of relief
to have them out of here by a very great majority of our em-
ployees. I know that all of the Foremen who had any contact
with them are relieved. They are not the only men that have par-
ticipated in the disturbance and it will be necessary for us to dis-
i 7 Regarding the Incredibility of Emmons and Penniman, see infra their testimony con-
cerning the discharges of Johnson and Sudeikis . Another instance of Penniman's in-
credibility is his denial that he ever requested the Board of Directors of the Independent
for permission to attend their meetings , although the minutes of an Independent meeting
show that he made such a request.
ATLAS PRESS COMPANY 881
charge several other employees unless they can keep their activities
away from our premises. , , ,
In this case' the Foremen were asked to keep these men on just
as long as they could stand it, so I feel that our position is perfectly
justified.
On December 9 Penniman wrote the following letter to Kiser, the
C. I. O. representative at Detroit, Michigan :
I have talked with Mr. Collins and Mr. Emmons this morning
regarding the three men that were discharged a week ago. After
discussing this with these two men I interviewed four or five of our
older men in the factory. Everyone seems to feel a tremendous
relief with these three fellows out of the way. As a result of my
exploring this morning, I feel quite sure that neither Collins nor
Emmons will do anything about putting them back on the job
here again. Furthermore, this seems to be a good deal of general
feeling throughout the factory.
I uncovered a few facts this morning that I did not know about
before and everything seems to point toward the fact that John-
son, Carter and Sedekis have for several months been creating a
disturbance here that has been of a destructive nature.
Really the only thing now that I can tell you is that I believe
your organization have picked up in our plant the lawless destruc-
tive element, and I suggest that you communicate with the rest
of your men here and inform them that if they want to continue
with their work in this shop, it will be necessary for them to take
their threats and disorderly operations away from our premises.
Allen Johnson. Johnson began working for the respondent in
August 1936, first as a drill-press operator and then as a lathe tester
in the assembly room. The assembly room contained the assembly, line,
the welding shop, and the paint booths. He received four wage in-
creases during his first year's service.
Johnson joined the Independent in July 1937 and in July 1939 he
was elected a director thereof. He was still a director at the `time
of his discharge. He joined the C. I. O. in' July 1939. As noted
above, he was active in the movement to affiliate the Independent, with
the C. I. O. and was temporary president of the S. W. O. C. local in
November. He was elected a permanent officer of the S. W. O. C.
on December 2 after his discharge.
Johnson worked continuously from the time of his engagement until
he was discharged by the respondent on December 2, 1939. Accord-
ing to his testimony, about 10: 30 a. in. on that day Johnson went
into the welding shop to have a Emall knob welded on the carriage
lock of a lathe that he was testing. O'Connor was the welder. After
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welding the knob on, which took only a few minutes , O'Connor set
it aside to cool . Johnson then spoke to O'Connor about a saw bracket
that he had at home which he wanted to have welded . At that junc-
ture Foreman Peterson came up and asked Johnson what he was doing.
Johnson told him. Peterson then asked , "Who gave you permission
to come out here?" Johnson replied , "Nobody. I didn 't know I
had to have permission to come out here." Peterson said, "You
know you have to have permission to leave your department." John-
son replied , "I thought this was part of the department , always has
been. I- have come out here hundreds of times to have work done and
nobody said anything about not doing it. " Peterson then told John-
son that it was a rule of the respondent that an employee could not
go from one department to another without permission from his fore-
man. Johnson said, "Carl, you are looking at me pretty often, seem
to be watching me." Peterson replied, "They can get a million rea-
sons to fire you if they want to. " Johnson replied , "I never knew that
before, I thought there was only a few reasons a man could be dis-
charged. If that is the rule, I will abide by it, but if everybody is
doing the same thing, I don't know why I should be picked out to
enforce it and be fired when all the rest of them are not." Johnson
then went back to work. Peterson 's version of this incident, given
at the hearing , differed from the foregoing . However, he admitted
that his recollection regarding the incident was not very definite. We
accept Johnson's testimony with regard thereto, as did the Trial
Examiner.
Peterson reported the incident to Emmons and recommended that
Johnson be discharged . About an hour after the welding shop inci-
dent, Peterson came up and told Johnson to go and get his check.
Johnson asked Peterson why he was being discharged and, according
to Johnson , Peterson said that it was because he was agitating and
talking too much during working hours . Peterson testified that he
told Johnson that he was being discharged because he had been creat-
ing a disturbance . We accept Johnson's testimony in this regard, as
did the Trial Examiner. '
Peterson admitted that it was the regular routine for lathe testers
to take the carriage locks into the welding shop to have the knobs
welded on when necessary , without securing the permission of the
foreman, if the foreman happened not to be near the tester or if he
were busy in some other part of the assembly room, in order to save
time. The record shows that Johnson earned more wages during the
last 22 weeks that he worked than any one of the other three lathe
testers. All lathe testers worked on a piece-work basis . None of
of the other three testers was laid off or discharged , although at least
two of them frequently went to the v elding shop during working hours
for the same reason that Johnson did. -'
ATLAS PRESS COMPANY 883
Prior to Johnson's discharge he was in the practice of going to
the welding shop in connection with his work and nothing had ever
been said to him about doing so.- Peterson, while admitting at the
hearing that he' had no objection to testers taking locks into the weld-
ing shop for welding, indicated that his objection was to Johnson's
talking during working hours. Peterson admitted, however,: that
there was no rule against talking on the part of employees while at
work. The carriage lock had been dipped for cooling purposes, and
Johnson had engaged in conversation with O'Connor while waiting
for it to cool. Peterson; admittedly did not seek to determine whether
the carriage lock had been dipped, and further admitted that he did
not know whether-it had been cooled at the time when he came into
the Welding department.
Peterson testified that there was no complaint about Johnson's ,work
during his tenure of employment until about 2 months before his
discharge, when, according to Peterson, he began to talk to other
employees and neglect his work. However, Peterson's testimony in
this regard is unreliable. In an affidavit dated September 20, 1940,
Peterson swore that Johnson's conduct in leaving his work and gath-
ering groups of employees in the plant began when he first came into
Peterson's department, which was from 11/2 to 2 years prior to his
discharge. 'Peterson also testified that after it became noticeable that
Johnson was- joining, other employees in groups, Peterson "watched
him to see that." Finally, Peterson testified that he had 'on several
occasions cautioned Johnson regarding his leaving his machine and
talking. Contrary, to the foregoing testimony of Peterson, Johnson
testified that he had never received any complaint-about- his work,
that Peterson had never complained to him about talking during
working hours prior to December 2, and that, although he occasion-
ally left his machine for purposes other than in connection with his
work he had not done so more frequently during the last 2 months
of his employment than theretofore. In view of the general unreli-
ability of Peterson's testimony noted, above and the entire record, we
credit the testimony of Johnson as to these matters.
Emmons' testimony regarding Johnson's discharge is also incredible.
He testified, for example, that he had seen Johnson away from his
machine at least four or five times; thereafter, Emmons testified that
he had seen Johnson talking away from his work only once or twice.
Both Peterson and Emmons indicated on direct examination that
Johnson did inferior work due to his talking to employees during
working hours. This testimony cannot be credited, since, on cross-
examination, Emmons admitted that he did not really know that
Johnson ever- did- a bad j'ob, and Peterson testified that he could not
swear that Johnson's lathes were ever returned, although, according
to Emmons, the only way whereby it could be determined that a lathe
448692-42-vol. 32--57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tester was doing inferior work was by the-return of such work or,-by
customer complaints'
At the time Johnson was discharged he was turning out nine lathes
daily,,at least as many as any other lathe, tester was turning put at
the.-time., While Peterson and Emmons admitted that Johnson was
turning ,out as, much work- as any of the testers, nevertheless they
testified- that Johnson was slowing up production. Both, stated that
he, did so by interfering with the work of other testers. This tes-
timony likewise, cannot be' credited.. Emmons admitted that other
lathe .testers had made- no complaint -about Johnson's alleged, interfer-
ence-,with their'.work. - Peterson testified that after Johnson's dis-
charge there was an increase in,the number of machines tested, and
that there was a general increase in production on the assembly-line.
However, at the hearing, Peterson himself -attributed the increase: in
production to "improvements on the line they could handle. it
faster, better machining from the machinists so they would not have
so much work on it . . . they,-were more rigid in inspecting the prod-
ucts[ before they went,to the assembly line." Peterson also testified
that newwage rates placed in effect after Johnson's•discharge in part
accounted for ,the increase in production..
That Johnson's, activities in behalf of the C. I..0. were well known
to the'.iespondent is clearly shown by the incident in November 1939,
doted above in Section III A, in which Penniman accused Johnson
of being the, ringleader of the-C. I.,0., and attempted to discourage
his -activity- therein. • At, the. hearing Emmons stated that he, did not
known how to explain the fact that Johnson's misconduct began only a
few ,months before- his discharge "unless he was trying to formulate
the,,C: I. O." In his affidavit of September .20, 1940, Peterson-stated,
"I have every reason to believe that ^ he [Johnson] was continually
agitating for a Union."
`Percy Carter. Carter was first employed by the respondent in July
1933. - He as laid off on about June 19,-1937, together,with,-some_other
employees, but was - reinstated'in' July of that year. He was laid ,off
again in April 1938, and reinstated in October. He was a boring-
niill. operator in the plant. , Carter joined the C. I. O. in- April 1937
and in July of the same year he joined the Independent. In, July
1939 he was elected a member of the Board of Directors of the Inde-
pendent, representing the machine room. He was a director at 'the
time of.'his discharge on December 2, 1939.. Carter was very active in
the C: I..0.,,:Ir November 1939 he was temporary financial secretary
of the .S. W.;O. C., and.was elected to office in 'the S. W. O. C. - on
December 2, after his discharge. . ' ,
About 2 weeks before his discharge, Emmons told Carter that he
had been, trying to intimidate employees regarding their joining the
C.' 'I. 0., that he had done so in,particular with respect to an,employee
ATLAS PRESS ' COMPANY 885
known as Little Duke, that he had thought that Carley was iu friend
of his, but that Carter had' turned' out to be "a snake in the grass."
Carter denied to Emmons that he had intimidated Little Duke ors any
other employee, and at the hearing he denied having engaged in any
such intimidation. Carter also testified that no member of, the,re-
spondent's supervisory staff had ever mentioned to him the matter of
intimidating employees before Emmons' comment.to him on this 'occa;
sion and that no one thereafter brought to his; attention any such
alleged intimidation.' Upon all the evidence, we credit Carter's testi-
mony and find that Carter had not intimidated any employee.
Soon after the foregoing conversation with Emmons, Carter told
Reed, his foreman, what Emmons had said to him., Reed said, "Well,
I knew he was going to jump all over you the first of the week." Carter
and Reed then talked about unions and Reed said that the C. I. O.
was a 'communistic organization, that John L. Lewis was a communist,
and that he had literature at home to prove it. 'Carter told Reed to
bring him the literature and that, if it were convincing enough, he
would have nothing further to do with the C.-I. O.
On Saturday, December 2, 1939,^at'about 11:45 a. m. Foreman Reed
told Carter that his check was waiting for him but that he did. not
know anything about it. As noted above, when"employee' Van Huis
informed Reed regarding his testifying at the instant hearing, Reed
accused him of being "one of Percy's [Carter's] gang", and stated, "I
suppose you want to be one of those who want to get laid off, too .. .
or expect to lose his job."
Emmons testified that Carter had been working in the plant since
about 1933 and that, prior to a month or two before hewas'discharged,
his work was perfectly satisfactory. There had been no complaints
about his leaving his machine. Emmons further testified that'durin g
the last 2 months of his employment Carter frequently left his machine
and talked to other employees, and that he accounted for Carter's mis;
conduct during that period by the -fact that Carter was trying to
organize the C. I. O.
Emmons further testified that Carter's work fell off because he was
talking in the plant and that he had told Carter about a month before
his discharge that the latter would, have to stop leaving his work and
talking -during working hours. Carter testified, on, the other, hand,
that he had never received any complaints about his work and that
although he frequently had occasion- to leave his machine in "regard
to his work, he was never reprimanded for leaving his machine and
talking. In view of Emmons' general incredibility, as noted above.
and the entire record, we credit Carter's testimony herein summarized;
Stanley Sudeikis. Sudeikis was first employed by the respondent in
November 1938 in the machine department. At 'this time he' 'as dis-
charged on December 2,.1939,:he was operating a-drill press 'and mill-
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing machine on the night shift. At the time he was hired, he was told
by Assistant Superintendent Emmons that the Independent existed in
the plant and that everybody had to join it. Sudeikis joined it about
a week later. He joined the C. I. 0. in April 1939 and was very ac-
tive in union affairs. At the time of the meeting of the Independent
on December 2, 1939, Sudeikis was president thereof. He was elected
president of the S. W. 0. C. at that meeting.
Sudeikis went to, work on Monday, December 4, 1939, as usual.
However, his time card was not in the rack. He went to Assistant
Superintendent Emmons and asked him about it. Emmons replied
"You are soliciting too many members for the Union." Sudeikis
asked, "Is that a good reason to discharge me?" Emmons replied,
"That is reason enough. for you," and told Sudeikis, "The less I see
of you in the machine shop the better I feel." Sudeikis asked his
foreman, Avery, why he had been discharged. Avery replied that he
was not aware that he had been discharged.- Sudiekis' discharge be-
came effective on Saturday, December 2, 1939: Emmons testified that
about 2 months before Sudeikis' discharge, it came to his attention
that Sudeikis was "talking C. I. 0."
While Emmons admitted that Sudeikis was a good, fast workman
and did not neglect-his work, he testified that he recommended Sudeikis'
discharge because the latter was causing "complete disrest" on the night
shift and was annoying other employees by talking to them and caus-
ing them to neglect their work. Emmons' testimony in regard to Su-
deikis' alleged misconduct and his discharge therefor is not credible.
At first Emmons testified that Avery gave him only one report regard-
ing Sudeikis. Then he testified that he and Avery had several dis-
cussions about Sudeikis and that there might have been five such
discussions. He further testified that Avery complained to him re-
peatedly about Sudeikis, yet he, Emmons, did not discharge him until
December 2, "for his actions on December 1, though." The incredi-
bility of Emmons' testimony regarding the alleged December 1 con-
versation is noted above."
Penniman's testimony regarding the discharge of Sudeikis is like-
wise incredible. He testified that his recollection was that Sudeikis
was discharged "for being troublesome," and that he, Penniman, was
told by Collins and Emmons on one or two occasions that Sudeikis
threatened other employees. Penniman further testified that Sudeikis
kept the night shift "disturbed," was unable to do "very good work,"
was a, "great talker," and spent a good deal of time away from his
machine. However, Penniman admitted that no night shift men had
complained to him about Sudeikis, nor did he know of any such. com-
8 Moreover, Emmons admitted, with respect to the alleged December 1 incident, that
Sudeikis had not yet started to work. The conversation is alleged by Emmons to have
taken place at about 4 p. m., and Sudeikis' shift did not start until 4: 30.
ATLAS PRESS COMPANY 887
plaints to anyone else. As noted above, Emmons himself admitted
Sudeikis' efficient performance as an employee. Furthermore, Pen-
niman testified that the only threat by Sudeikis which Penniman actu-
ally heard of was on one occasion when Sudeikis threatened to put an
employee out of an Independent meeting. As to this, Sudeikis testi-
fied that the employee in question was intoxicated and attempted to
disrupt the meeting, and that he, Sudeikis, who was presiding, told
him to sit down, and later in the meeting, to do so before he was
put out.
Contrary to the foregoing testimony of Emmons and Penniman,
Sudeikis, while admitting having occasionally left his work for rea-
sons unrelated thereto, denied having constantly done so during the
2 months prior to his discharge, or having done so during that period
to any greater extent than prior thereto. He further testified that
many employees came to his machine during working hours, that all
employees walked around in the plant and talked, and that he did so
as much as other employees. Upon all the evidence, we credit the
testimony of Sudeikis summarized herein.
2. O'Connor
Everett O'Connor. O'Connor began working for the respondent
in February 1936 as a stock chaser. Later he was transferred to the
assembly room and was promoted to the position of welder in the
welding shop. For 11/2 years prior to his discharge O'Connor had
been the only welder in the plant and during the course of his employ-
ment he had received three raises in wages. He had received no com-
plaints about his work as a welder.
O'Connor joined the C. I. O. in May 1939 and was active in union
affairs. At the meeting of the Independent in November 1939, which
was held for the purpose of deciding the question of affiliation of the
Independent with a national organization, O'Connor advocated affili-
ation with the C. I. O. He was elected as guard of the S. W. O. C.
local in November and thereafter attended all meetings. of the S. W.
O. C. and participated in its membership drive.
The decision to discharge O'Connor was made by Foreman Peterson,
who obtained the approval of Assistant Superintendent Emmons and
Superintendent Collins before doing so. Collins testified that O'Con-
nor was discharged both for inefficiency and for smoking in the plant.
Peterson and Emmons, however, attributed his discharge only to his
smoking in the plant.
With, regard to O'Connor's alleged inefficiency, Collins testified
that he and Emmons had concluded that O'Connor was not doing
satisfactory welding work and that Emmons had reported to him
that O'Connor's work was not satisfactory shortly after O'Connor
888 DECISIONS Or NATIONAL- LABOR RELATIONS BOARD
was promoted to the welding job. Penniman testified that after
O'Connor's transfer to welding, his work was not satisfactory. Iii
view of the fact that O'Connor was the only welder in the plant for
11/2 years, thatilie had received no complaints about his welding, and
that he had received wage increases during the course of his employ-
ment, and in view of. the foregoing contradictory testimony as to the
reason for his discharge, we do not credit the testimony regarding
O'Connor's asserted inefficiency. In any event, we do not believe, as
the Trial Examiner did not, that he was discharged for his, alleged
inefficiency.
-: At.about 2: 30 p. m. on Friday, December 8, 1939, Foreman Peterson
came up to O'Connor while lie was at work and.said, "You were smok-
ing, weren't you?" O'Connor'said•.that he had been. -Peterson then
said, "You know how many. daysyou•are. going to get off." -O'Connor
replied, "No, how many ?'.' ..Peterson; said, "Quite-ta few." . Peterson
then left'and. O'Connor' continued with his work. , At about 4: 20 that
afternoon, Peterson told O'Connor to go and get his check. •
O'Connor testified that prior to.the occasion of his discharge he
had been caught smoking only once, in 1938, by Peterson, who told
him that the next time he would lay him off. Peterson, however,
testified that he had warned O'Connor on several occasions about
smoking in the plant and had informed him 'that the respondent
would not tolerate the practice. Superintendent Collins testified that
Peterson had told him that he had reprimanded O'Connor several
times about smoking. In view of the general incredibility of Peterson
and Collins noted above, however, we find, as did the Trial Examiner,
that O'Connor had been caught smoking once before the occasion of
his discharge, and that Peterson 'at that time merely-informed him
that the next time he.would lay him off.
There were several "No Smoking" signs in the assembly department.
O'Connor admittedly continued to smoke secretly in the welding shop
after being warned with regard thereto in 1938. However, it had
beeii' customary for employees to smoke secretly in the welding shop
during working hours, and during the morning rest period of 10
minutes employees had been permitted to smoke in that shop. O'Con-
nor testified, without denial, that he had seen Foreman Reed smoking
in the welding shop during 1938 and 1939. Employees on the night
shift in the machine shop smoked continually while at -work, without
interference by their foreman, although there was a "No Smoking"
sign in that department.
The penalty of discharge for smoking in the plant appears to have
been" rarely invoked. Superintendent Collins 'testified that he knew
employees were smoking on the sly in the plant, that they had been
doing so for a number of years; and that he had caught employees
ATLAS PRESS COMPANY 889
smoking but had never discharged anyone for it. Since June 1937
Peterson had occasionally caught employees smoking in the plant.
O'Connor and one other employee were the only two employees Peter-
son had ever discharged for smoking. The other employee was dis-
charged on June 18, 1937. Assembly-department employee Orville
Brewer had been caught smoking several times and had not been dis-
charged therefor. As indicated above, employees other than O'Con-
nor continued to smoke in the plant and it does not appear that such
employees were discharged therefor. It was the practice of some of
the respondent's supervisory employees to warn employees who were
caught smoking and sometimes to lay them off for 2 or 3 days. Prior
to Johnson's discharge, Peterson had never laid off an employee for
smoking, and only one employee thereafter.
In his Intermediate Report, the Trial Examiner stated that he
was not impressed with the sincerity of the respondent in the dis-
charge of O'Connor, and found that the respondent had seized upon
O'Connor's breach of the no-smoking rule merely as a pretext for
discharging him. In view of the general incredibility of Peterson,
Emmons, and Collins, noted above, the activity of O'Connor in behalf
of the S. W. O. C., the respondent's expressed opposition to the
S. W. O. C., and the other circumstances summarized above, we agree
with the Trial Examiner and find that O'Connor was not discharged
for his violation of the no-smoking rule.
3. Conclusions as to the discriminatory discharges
The respondent's opposition to the S. W. O. C. is clear. So also is
the outstanding activity of the four employees here in question, in
attempting to affiliate the Independent with the S. W. O. C., and their
other activity in behalf of the S. W. O. C. The respondent had
knowledge of the S. W. O. C. affiliation and activity of Johnson,
Carter, and Sudeikis, and knew of the affiliation of O'Connor with
the S. W. O. C. The timing of the discharges is also significant.
Carter, Johnson, and Sudeikis were discharged on the very day when
a meeting of the Independent for the purpose of affiliating with the
S. W. O. C. was scheduled to take place.9 A permanent local of the
S. W. O. C. was formed at this meeting, Sudeikis, Carter, and John-
son being elected officers. Notice of this meeting, signed by Sudeikis,
had been posted in the plant and was seen by Assistant Superintendent
Emmons. O'Connor was discharged shortly after this meeting.
Prior to the movement to affiliate the Independent with the S. W.
O. C., considerable activity on behalf of the Independent was carried
° See Matter of Lancaster Iron Works, Inc. and Amalgamated Association of Iron, Stool
and Tin Workers of North America, Lodge #1035, 20 N. L. R. B. 738.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on by employees during working hours in the plant. The respondent
not only permitted, but on occasion, as noted above, participated in
such activtiy. After the movement to affiliate the Independent with
the C. I. O. started and even after the discharge of Carter, Johnson,
and Sudeikis, other employees left their work and talked in the plant.
No employees, other than these three, were ever discharged for such
conduct. Although employees other than O'Connor smoked in the
plant, the penalty of discharge for doing so does not appear to have
been invoked against them.
The charges made against Johnson, Carter, and Sudeikis by Penni-
man at the- hearing and in his above-quoted letters and by other
supervisory employees at the hearing, are not supported by credible
evidence; nor is the charge of inefficiency made against O'Connor
supported by such evidence.
The statement of Foreman Reed to employee Van Huis in July
1939 to "be sure and vote for Percy Carter [as a director in the, Inde-
pendent] . . . remember if you do, you get laid off in about 2 weeks
and maybe the whole shop," and his statement to Van Huis, shortly
prior to the hearing herein, in which he accused Van Huis of being one
of Carter's "gang" and further said, "I suppose you want to be one
of those who want to get laid off, too . . '. or expect to lose his job,"
indicate the anti-union motivation behind the four discharges. ' So
also do the statements of Penniman to Johnson when he accused him of
being a "ring-leader" in the C. I. 0., those of Foreman Peterson to
Johnson just prior to his discharge, and that of Assistant Superin-
tendent Emmons to Sudeikis at the time of.the latter's discharge. ,
In view of all the facts and circumstances summarized above, we
are convinced, as was the Trial Examiner, that the respondent dis-
charged Johnson, Carter, Sudeikis, and O'Connor because of their
affiliation with and activity in the S. W. O. C. We find that the
respondent discriminated in regard to the hire and tenure of em-
ployment of Allen Johnson, Percy Carter, Stanley Sudeikis, and Ev-
erett O'Connor, thereby discouraging membership in the S. W. O. C.,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, has -a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
ATLAS PRESS COMPANY
V. THE REMEDY
891
,We have found that the respondent has engaged in certain unfair
labor practices. We will order it to cease and desist therefrom and
to take certain affirmative action which we find necessary to effectuate
the policies of the Act.
Having found that the respondent has dominated and interfered
with' the formation and administration of the Independent and con-
tributed financial and other support to it, we shall order the respond-
ent to cease and desist from such practices. Since the effects and con-
sequences of such acts with respect to the Independent and continuing
recognition of it as a bargaining representative constitute and will
constitute a continuing obstacle to the free exercise by the respondent's
employees of their right to self-organization and to bargain collectively
through representatives of their own choosing, we shall order the
respondent to withdraw all recognition from and completely disestab-
lish the Independent as the representative of any of its employees for
the purposes of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, and other
conditions of employment; and since the contracts between the re-
spondent and the Independent embody recognition of the Independent
as the representative of the respondent's employees, and are part and
parcel of the respondent's domination thereof, we shall order that the
respondent cease and desist from giving effect to the contracts here-
tofore described or to any other contracts or agreements which may
have been entered into with the independent.
- The check-off of Independent dues by the respondent from the wages
of its employees was a part of the respondent's support of the Inde-
pendent. These deductions for the benefit of a dominated labor
organization cannot, even in those cases in which authorization was
given, be regarded as voluntary on the part of the employees affected.
To "restore the status quo in this respect, we shall order the respondent
to reimburse its employees for all amounts deducted from their wages
as dues for the Independent.
Having found that the respondent, by discharging Allen Johnson,
Percy Carter, Stanley Sudeikis, and Everett O'Connor, has discrimi-
nated in regard to their hire and tenure of employment, we shall order
the respondent to offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and-to make them
whole for any loss,of pay they may have suffered by reason of the dis-
crimination against,them by payment to each of them of a sum of
money equal to the amount he normally would have earned as wages
from the date of the respondent's discrimination against him to the
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the offer of reinstatement, less his net earnings 10 during said
period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, and Independent Union of Atlas Press
Employees are labor organizations within the meaning of Section 2
(5) of the Act.
2. The respondent, by dominating and interfering with the for-
mation and administration of Independent Union of Atlas Press
Employees and by contributing financial and other support to it, has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (2) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of Allen Johnson, Percy Carter, Stanley Sude-
ikis, and Everett O''Cpnnor, thereby discouraging membership in
Steel Workers Organizing Committee, affiliated with the Congress of
Industrial Organizations, has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
4. 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 in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
5. 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 Atlas
Press Company, Kalamazoo, Michigan, its officers , agents, successors,
and assigns, shall :
1. Cease and desist from :
10 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with his obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America. Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. R. B. 440.
Monies received for work performed upon Federal , State, county , municipal , or other work-
relief projects shall be considered as earnings . See Republic Steel Corporation v. National
Labor Relations Board, 311 U. S. 7.
ATLAS PRESS COMPANY 893
(a) Dominating or interfering with the administration of Inde-
pendent Union of Atlas Press Employees or with the formation or
administration of any other labor organization of its employees and
from contributing financial or other support to Independent Union
of Atlas Press Employees or to any other labor organization of its
employees ;
(b) Recognizing Independent Union of Atlas Press Employees as
the representative of any of its employees for the purposes 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 its contracts dated , September 1, 1937, and
October 14, 1937, respectively, and any other contracts or agreements
it may have entered into with Independent Union of Atlas Press
Employees;
(d) Discouraging membership in Steel Workers Organizing Com-
mittee, affiliated with the Congress of Industrial Organizations, or
any other labor organization of its employees , by discriminating in
regard to its employees ' hire or tenure of employment or any term
or condition of employment;
(e) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following 'affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Independent Union of Atlas
Press Employees as the representative of any of its employees for the
purposes of dealing with the respondent concerning grievances, labor
disputes , rates of pay, wages, hours of employment , or other conditions
of employment, and completely disestablish Independent Union of
Atlas Press Employees as such representative;
(b) Reimburse each of its employees whose dues in the Independent
were checked off, for the amounts thus deducted from their wages;.
(c) Offer to Allen Johnson, Percy Carter , Stanley Sudeikis, and
Everett O'Connor immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their senior-
ity and other rights and privileges ;
(d) Make whole Allen Johnson, Percy Carter, Stanley Sudeikis,
and Everett O'Connor for any loss of pay they may have suffered
by reason of the respondent 's discrimination against them by pay-
ment to each of them, respectively , of a sum of money equal to that
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he normally would have earned as wages from the date of such
discrimination against him to the date of the offer of reinstatement,
less his net earnings 11 during said period;
(e) Immediately post in conspicuous places throughout its plant at
Kalamazoo, Michigan, and maintain for a period of at least sixty
(60) consecutive days, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a), (b), (c), (d), and (e), of this
Order; (2) that the respondent will take the affirmative action set forth
in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that
the respondent's employees are free to become or remain members of
Steel Workers Organizing Committee, affiliated with the Congress of
Industrial Organizations, and that the respondent will not discrimi-
nate against any employees because of membership or activity in that
organization ;
(f) Notify the Regional Director for the Seventh Region (Detroit,
Michigan) in writing within ten (10) days from the date of this Order
what steps the respondent has taken to comply herewith.
11 See footnote 10, supra.