Detroit Gasket and Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 670 (N.L.R.B. 1948)

In the Matter of DETROIT GASKET AND MANUFACTURING COMPANY and
LOCAL 174, INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-
CIO)
Case No. 7-C-1303.-Decided July 30, 1948
Messrs. Jerome H. Brooks and Harold A. Cranefield, for the Board.
Cook, Smith , Jacobs and Beake, by Messrs. Bethel B. Kelley and
Glenn R. Miller, of Detroit , Mich ., for the Respondent.
Mr. Leonard Donaldson , of Detroit , Mich., for the Association.
DECISION
AND
ORDER
On June 20,1947, Trial Examiner William F. Scharnikow issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in volation of Section 8 (1) and (3) of the Act, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto.' Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.2 The Respondent's re-
'The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which the
Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and 8 (a)
( 3) of the Act, as amended by the Labor Management -Relations Act, 1947.
2 After the issuance of the Intermediate Report,_the Respondent filed a Motion to Dismiss
Charge, Complaint and Proceedings Thereon, contending that : ( 1) the Union had not com-
plied with Section 9 ( f), (g), and ( h) of the Act , as amended , and (2 ) the delay of a year
in filing the amended charge , as well as the delay of approximately 3 years in issuing the
complaint , violates Section 10 (b) of the Act, as amended This motion is hereby denied.
As to the first contention , we are not precluded by failure of a charging union to comply
with Section 9 (f), (g), and ( h) from adjudicating complaint cases which arose prior to
the amended Act. Matter of Marshall and Bruce Co., 75 N. L R B. 90. Furthermore, the
Union is in full compliance with these provisions at this time . As to the second contention,
the procedural limitation contained in Section 10 (b) of the amended Act is not applicable
to cases pending before the effective date of the amendments Matter of Union Products
Company, 75 N. L. R B. 591 . Nor is there merit in the Respondent 's contention , advanced
in its answer , that delay in the prosecution of this case requires its dismissal on general
principles of the law of laches. The Trial Examiner correctly ruled that administrative
delay in the prosecution of a complaint after the timely filing of charges is no basis for
dismissal of the complaint The original charge was timely filed on April 14, 1944, and
differed from the amended charge, which was filed on March 22, 1945, only in the omission
of the name of one of the 10 employees alleged to have been discriminatorily discharged.
78 N. L. R. B., No. 83.
670
DETROIT GASKET AND MANUFACTURING COMPANY 671
quest for oral argument is hereby denied inasmuch as the record and
brief, in our opinion, adequately present the issues and positions of
the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-
man panel consisting of the undersigned Board Members.*
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the additions 3 and modifications set forth
below :
1. The Trial Examiner found, and we agree, that by acquiescing
in the Association's exclusion of the complainants from the plant on
April 14, 1944, and in the resulting termination of their employment
on April 21, 1944, the Respondent in effect discharged them in viola-
tion of Section 8 (3) of the Act. Decisions of the Board and of the
courts have established that an employer who acquiesces in the exclu-
sion of employees from its plant by an anti-union or rival-union group
will be held to have discriminatorily discharged them. The Act im-
poses upon an employer the affirmative duty to insure that its right
of discharge is not surrendered to any union or anti-union group. By
permitting such a group to exercise that right, the employer violates
the Act.4
The Respondent contends that it cannot be held responsible for the
exclusion of the complainants by the Association because it had no
knowledge of the exclusion until after the event occurred.5 An em-
*Houston, Murdock, and Gray.
3 We find, as did the Trial Examiner, that during the period before the April 13, 1944,
election, Foremen Buehrle and Stewart made statements to the effect that employees who
were members of the CIO would be thrown out of the plant ; that Foreman Metz, on the day
of the election, ordered employee Dumas to replace his CIO button with an Association
button, and that the Respondent thereby violated Section 8 (1) of the Act. In finding
that the Respondent violated Section 8 (1), however, we do not rely solely on these state-
ments made during the preelection period. We further find that on the morning after the
election, Foreman Buehrle said to employee Dumas, "Now we will get rid of you CIO guys
from now on," and that this statement was also violative of Section 8 (1) of the Act
4 Matter of Fred P 1Veissman Company. 69 N L R. B. 1002, 71 N L R. B. 147; Matter
01 brown Garment Manufacturing, 62 N L R B. 857 N. L R B v. Goodyear Tire and
Rabber Company, 1291' (2d) 661 (C C A. 5) , N L R. B. i Hudson Hotot Car Company,
128 F. (2d) 528 (C C. A. 6).
6 The Trial Examiner found that Association President Welkenback advised Superintend-
ent Doolittle on April 13 of the Association's intention to exclude the complainants from
the-pTaTnF''on the following day. We do not believe that the record supports-such a finding,
and we do not, therefore, rely upon knowledge by the Respondent in advance of the exclu-
sions.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's responsibility for such exclusion is, however, not dependent
upon knowledge in advance of the exclusion, but arises if the employer,
as in this case, is immediately advised of the exclusion and does-noth-
ing to prevent its continuance. The record establishes, that Foremen
Buehrle and Stewart were present at the plant gate on the morning
of April 14, and observed the exclusion of the complainants, and that
Buehrle immediately reported to Superintendent Doolittle that the
complainants had been kept out of the plant by officers of the Asso-
ciation. Neither Doolittle nor any other official of the Respondent ever
criticized the Association for the exclusions. Nor did the Respondent
protest when it was advised on April 18 that the Association planned
to continue to exclude the complainants from the plant.
The-Respondent also contends that it is absolved of responsibility
for the exclusion of the complainants from the plant because it im-
mediately advised them that they were not discharged. We find this
contention likewise without merit. It is true that shortly after the
complainants were stopped at the gate, Union Organizer Kemsley
'telephoned Cook, the Respondent's attorney, and was advised by Cook
that the employees who had been excluded from the plant were not
discharged. Kemsley did not tell the complainants what Cook had
said. Whatever may have been Kemsley's motive in not communicating
Cook's advice to the complainants,6 it is clear that even if he, had done
-so the events which subsequently transpired would have negatived
this information.
When the complainants spoke to Doolittle on the next day, they
were given clearly to understand that their discharge would be auto-
matic unless they could make their peace with the Association. By
April 17 Doolittle had been told by Cook that the excluded employees
were not to be discharged; yet Doolittle never so informed them. On
the contrary, when he saw them on April 21 and was advised by their
refusal to sign "quit slips" that they did not wish to quit, he never-
theless directed that they be paid their final wages, and did not advise
them that their jobs were available.
2. We find, as did the Trial Examiner, that the discharge of the
complainants cannot be defended on the ground that the Respondent
had a "union shop" agreement with the Association. While it is true
that the discharges followed the dismissal of the complainants from
the Association, we'find that the Rutland Court 7 doctrine is directly
6 Although Cook informed Kemsley that the complainants had not been discharged, he
also told him, in effect,.that the Respondent could not guarantee that these employees would
not be physically ousted.by members of the Association if they returned. Thus, although
,Kemsley did not explain why he did not transmit Cook's statement that the men were not
discharged, it may well have been because he felt that the men should not return to work
at the risk of physical danger.
' Matter of Rutland Court Owners, 44 N. L R. B. 587, 46 N. L. R. B. 1040.
DETROIT GASKET AND MANUFACTURING COMPANY 673
applicable. The record clearly establishes that the Respondent knew
before the,final termination of employment on April 21 that the coin-
plairiants had been expelled from the Association because of dual
unionism. Respondent's attorney, Cook, admitted that he learned this
fact from the Association's attorney on April 14. In addition, Asso-
ciation. President Welkenback stated in the presence of Doolittle on
April 14 that the complainants had been expelled because they were
"known organizers for the CIO." Finally, the Association's letter,
received by the Respondent on April 18, stated that the complainants
had been expelled because they were seeking to undermine the Asso-
ciation.
The Respondent contends, however, that the dual unionism upon
which the Association relied in requesting the discharges, and upon
which the Respondent relied if what it did or failed to do amounted
to a discharge of the complainants, occurred during the early part of
1943, at the beginning of the contract period, and was therefore not
protected dual unionism.8 Like the Trial Examiner, we find this
contention to be without merit. The Association's expulsion of the
complainants and the request that they be discharged followed imme-
diately after the April 13,1944, election, which had been held pursuant
to a petition filed on behalf of the Union. All of the complainants
had been active in support of the Union in the several months during
which the Union's petition had been pending. Although some of the
complainants had been active in the Union prior to this clearly pro-
tected period, the Respondent was actually aware of dual unionism
in the earlier period on the part of only 4 of the 10 complainants.
There is no evidence that the Association at any time indicated to the
Respondent that it was basing its discharge request on any early rival-
union activity. The fact that the Association did nothing until after
the 1944 election to expel the complainants and effectuate their dis-
charge because of their dual unionism creates a strong presumption,
which is nowhere rebutted in the record, that the dual unionism relied
on by both the Respondent and the Association was that which imme-
diately preceded the April 1944 election. Under these circumstances,
we find that the complainants were discharged, after having been
dismissed from the Association, for having engaged in rival-union
activity during a period when a question of representation could
appropriately be raised, and that such discharges are violative of
Section 8 (3) of the Act despite the "union-shop" agreement.
Having found that the dual unionism which was the basis for the
expulsion and discharge of the complainants occurred during a pro-
9 See Matter of Southwestern Portland Cement Company, 65 N. L. R B 1.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tected- period, it becomes unnecessary for us to pass upon the Trial
Examiner's finding that even had the Association's discharge request
been expressly predicated on the earlier unprotected dual unionism, the
discharges would still be unlawful under the circumstances here
present.
3. Although employees Baugh and Price were not associated with
the other eight complainants in most of the negotiations between the
Respondent and the complainants after April 14, we shall, like the
Trial Examiner, include these two employees in the reinstatement
order on the basis of the following considerations.
Although designated by the Association as one of the employees to
be barred from the plant, Baugh did enter the plant on the morning of
April 14. He left immediately, however, when ordered to do so by
employee Moebs, who was acting for the Association's officers. It
appears that Baugh then asked for his wages, and was paid on April
15 after signing a "quit slip." • Baugh's request for his wages on April
15 was no doubt motivated by the same considerations as were present
when the other complainants requested their wages on April 21, i. e.,
a belief that he had been discharged, and a desire to obtain whatever
money was due him. His signing a "quit slip" does not, under the
circumstances herein, constitute a voluntary termination of his em-
ployment. By permitting the Association's expulsion of Baugh from
the plant to stand unremedied, and by subsequently accepting his sepa-
ration, the Respondent discriminatorily discharged Baugh in the same
manner as it did the other complainants.
Price had injured his hand in the Respondent's employment, and
Association President Welkenback was concerned that Price would as
a result find it difficult to obtain employment elsewhere. Welkenback,
therefore, notified Price on April 13 that he was scheduled to be barred
from the plant the next morning. He advised him not to appear for
work, and arranged an interview with Doolittle for the afternoon of
April 14. Pursuant to this suggestion, Price did not report for work
on April 14, but came to see Doolittle that afternoon. Doolittle told
Price, as he did the other complainants, that the decision as to whether
the excluded individuals could keep their jobs was entirely in the hinds
of the Association. A few days later, Price returned to see Doolittle
and asked to be permitted to return to work. Doolittle stated that it
would be out of the question as it would be unfair to the other expelled
employees.
Under these circumstances, we find that although Price was not
physically ousted from the plant by the Association, the Respondent
in the case of Price relinquished to the Association its right of dis-
DETROIT GASKET AND MANUFACTURING COMPANY 675
charge to the same degree and with the same consequences as was true
of the other complainants.
4. With a view to determining whether there had been any willful
loss of earnings by the complainants following their discriminatory
discharge, the Trial Examiner accepted considerable testimony on the
employment history of the complainants subsequent to April 21, 1944.
Upon this testimony, the Trial Examiner found that Smith had will-
fully incurred a loss of earnings. He also found that Bortner and
Haughton may have incurred willful losses, but recommended that
their cases be further investigated. The record does not enable us to
determine whether, or to what extent, there had been a willful loss of
earnings by-any of the complainants as of the time of the hearing, and
in view of the fact that over a year has elapsed since the hearing, any
finding as to willful losses based on the record before us would not be
conclusive. We shall not, however, require additional evidence at
this time, inasmuch as the parties may be able amicably to adjust the
amount of back pay due upon the basis of facts disclosed when com-
-`pliance with our Order is undertaken 9
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Detroit Gasket
and Manufacturing Company, Detroit, Michigan, and its officers,
agents, successors, and assigns, shall;
1. Cease and desist from :
(a) Discouraging membership in Local 174, International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America (UAW-CIO), or in any other labor organization of its
employees, by discriminatorily discharging employees or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Local 174, International Union,
United Automobile, Aircraft and Agricultural Implement Workers of
America (UAW-CIO), or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
This is without prejudice to the Respondent 's right, in the event that this matter is not
adjusted , to apply for leave to adduce additional evidence as to whether the complainants
have willfully incurred a loss of earnings subsequent to the Respondent 's discrimination
against them . Matter of C. D. Beck and Company, 63 N. L. R. B. 1426 ; Matter of Fair-
snout Creamery Company, 64 N. L. R. B. 824.
676 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
gage in , concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Roy Gardner, John Schleich, Fred Baehr, Tom Han-
cock, Stella Smith, Gerald Dumas, Bruce Bortner, Clarence Haughton,
Sam Baugh, and Clarence Price, immediate and full reinstatement to
their former or substantially equivalent positions,10 without prejudice
to. their seniority or other rights and privileges, and make each of
them whole for any loss of pay he may have differed by reason of the
Respondent's discrimination against him by payment to him of a sum
of money equal to that which he normally would have earned as wages
from April 14, 1944, the date of the Respondent's discrimination
against him, to the date of the offer of reinstatement, less his net earn-
ings 11 and less willful losses, if any, incurred by him during such
period ;
(b) Post at its plant at Detroit, Michigan, copies of the notice
attached hereto and marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director of the Seventh Region, shall,
after being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of the receipt of this Intermediate
Report, what steps the Respondent has taken to comply with this
Order.
10 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 65 N. L. R. B. 837.
11 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for his unlawful discrimination and the
consequent necessity of his seeking employment elsewhere . Matter of Crossett Lumber
Company, 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 . Republic
Steel Corporation v. N. L. R. B., 311 U. S. 7.
12 In the event that this Order is enforced by a decree of a Circuit Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER " the words : "Decree
of the United States Circuit Court of Appeals Enforcing."
DETROIT GASKET AND MANUFACTURING COMPANY
APPENDIX A
NOTICE To ALL EMPLOYEES
677
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist LOCAL 174, INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other la-
bor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
WE will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Roy Gardner. Gerald Dumas
John Schleich Bruce Bortner
Fred Baehr Clarence Haughton
Tom Hancock Sam Baugh
Stella Smith Clarence Price
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
DETROIT GASKET AND MANUFACTURING COMPANY,
Employer.
Dated------------------- By---------------------------------
(Representative ) ( Title)
NOTE : Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
798767-49-vol. 78-44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Messrs. Jerome H. Brooks and Harold A. Craneield,-for the Board.
Cook, Smith, Jacobs, and Beake, by Messrs. Bethel B Kelley and Glenn R.
Miller, of Detroit, Mich., for the respondent.
Itr..Leonard Donaldson, of Detroit, Mich., for the Association.
STATEMENT OF THE CASE
Upon an amended charge filed on March 22, 1945,' by Local 174, International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America (UAW-CIO), herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Seventh Region
(Detroit, Michigan), issued its complaint dated February 18, 1947, against Detroit
Gasket and Manufacturing Company, herein called the respondent, alleging that
the respondent had engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and amended charge, a notice of hearing, and an order
postponing hearing were duly served upon the respondent, the Union, and De-
troit Gasket Employees Association, herein called the Association.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that on and since approximately January 1, 1944, the respondent, in viola-
tion of Section 8 (1) of the Act, has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the Act,
through statements of its officers and agents of its employees, indicating re-
spondent's hostility to the organization of its employees by the Union; and (2)
that, in violation of Section 8 (1) and (3) of the Act, the respondent discharged
Roy Gardner, John Schleich, Fred Baehr, Tom Hancock, Stella Smith, Gerald
Dumas, Bruce Bortner, Clarence Haughton, Sam Baugh, and Clarence Price
on or about April 14, 1944, and has since refused to reemploy them because they
joined or assisted the Union and engaged in concerted activities for the pur-
pose of collective bargaining and other mutual aid and protection.
In its answer , as amended , the respondent admitted certain allegations of the
complaint but denied the commission of any unfair labor practices. By its
amended answer, the respondent specifically denied that it had discharged any
of the employees named in the complaint and asserted that these employees
"were separated from respondent's pay rolls on or about May 6, 1944," because
they "were absent from their jobs at respondent's plant from on or about April 13,
1944." In its amended answer, the respondent further asserted (1) that on or
about November 19, 1941, the Board certified the Association as the collective
bargaining representative of the respondent's employees; (2) that on or about
April 2, 1943, pursuant to this certification, the respondent entered into a writ-
ten agreement with the Association, which provided in substance that from and
after their respective individual employment by the respondent for 60 days,
all employees of the respondent in the unit represented by the Association should,
"in order that they continue as employees of [the respondent], become and re-
main members of the [Association] in good standing"; (3) that, on or about
April 13, 1944, and again on April 20, 1944, while this agreement with the Asso-
ciation was still in full force and effect, the Association advised the respondent
1 The original charge was filed on April 14, 1944.
DETROIT GASKET AND MANUFACTURING COMPANY 679
that the employees named in the complaint "had been dismissed from member-
ship [in the Association] and requested ,that their employment be terminated
forthwith"; and (4) that "while respondent denies that it discharged" the em-
ployees named in the complaint, "it alleges that if any of its actions or actions
of its agents attributable to it can be considered by the [Board] as constituting
In legal effect a discharge within the meaning [of the Act], then each and all
of such acts of respondent, its officers, agents, or employees, were pursuant to
the mandatory provisions" of its union-shop contract with the Association. By
its amended answer, the respondent further alleged that copies of the union-shop
agreement with the Association and notices of the agreement were posted in
the respondent's plant for periods of at least 3 months following April 2, 1943,
and January 1, 1944, and that therefore, by reason of the provisions of the
"National Labor Relations Board Appropriations Act, 1947", the Board "is en-
tirely without authority to hear and determine" the instant case.2
Pursuant to notice, a hearing was held in Detroit, Michigan, from March 31
to April 19, 1947, inclusive, before the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The Board, the respondent, and the Asso-
ciation participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues. Motions made by counsel for the Board at the beginning
of and during the hearing to strike portions of the amended answer were denied.
At the beginning of the hearing, the undersigned granted an unopposed written
petition filed by the Association for leave to intervene in the present proceeding,
and a motion by the respondent, opposed by counsel for the Board, for a separa-
tion of witnesses. During the course of the hearing the undersigned denied a
motion made by counsel for the Board to relax the rule separating witnesses to
permit the Board's witnesses to attend the hearing after the presentation of the
Board's case-in-chief but then, upon reconsideration, relaxed the rule of separa-
tion only as to the employees alleged by the complaint to have been discrimina-
torily discharged. Upon petitions filed with the Board by counsel for the Board
and counsel for the respondent, respectively, for leave to appeal from the rulings
of the undersigned as to the relaxation of the rule separating witnesses, the
Board issued an order directing the continued exclusion from the hearing of the
witnesses alleged by the complaint to have been the objects of discrimination.
The hearing was thereafter conducted in compliance with this order of the
Board. At the end of the hearing, the undersigned (1) denied a motion by coun-
sel for the respondent for leave further to amend its answer ; (2) denied a motion
by counsel for the Board to strike portions of the amended answer; and (3) re-
served decision upon offers in evidence of various exhibits for identification, con-
cerning which testimony had been taken but no offer had previously been made.
The undersigned now rejects the offer in evidence of Intervenor's Exhibit 5, but
admits in evidence Intervenor's Exhibit 6B and Respondent's Exhibit 23. At
the end of the hearing, the undersigned granted unopposed motions to conform
the complaint and the amended answer to the proof in such minor matters as
the spelling of names and dates. The hearing was closed after oral argument
before the undersigned by counsel for the Board, the respondent, and the inter-
venor. Since the close of the hearing, the undersigned has received from the
parties their duly executed stipulation as to what Clarence W. Haughton would
have given as his testimony if questioned on the witness stand concerning his
employment since March 14, 1944. The stipulation is accepted and, pursuant
Act of July 26, 1946, Public Law No. 549, 79th Congress-2d Session.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its terms, is admitted in evidence as Trial Examiner's Exhibit 4 .3 Counsel
for the respondent has also filed a brief with the undersigned.
Upon the entire-record in tile case and from his observation of-the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, a Michigan corporation, is engaged at Detroit, Michigan, in
the manufacture and sale of metal, cork, and other gasket and insulation ma-
terials. During 1946, the respondent purchased raw material valued at approxi-
mately $2,377,000, approximately 90 percent of which was shipped to the plant
from points outside the State of Michigan. During the same year, the total value
of the respondent's finished products was approximately $5,485,000, approxi-
mately 30 percent of which was shipped to points outside the State of Michigan.
In its amended answer, the respondent admits, and the undersigned therefore
finds, that the respondent is engaged in commerce within the meaning of the
Act.
II. THE ORGANIZATIONS INVOLVED
Local 174, International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW-CIO), affiliated with the Congress of
Industrial Organizations, and Detroit Gasket Employees Association are labor
organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The "union shop" agieenient and events prior to the election of April 13, 194IF
On or about November 19, 1941, the Board certified the Association as the
exclusive bargaining representative of an appropriate bargaining unit consisting
of the respondent's hourly rated, non-supervisory, production employees .4
Thereafter, the respondent and the Association entered into successive contracts
covering the employees in the appropriate unit. One of these contracts was
executed on or about April 2, 1943 By its terms, it was effective from January 1,
1943, to and including December 31, 1943, and "thereafter for successive yearly
periods" until written notice of cancelation should be given by either party to
the other at least 30 days prior to the end of any calendar year, including 1943.
The agreement also contained a "union shop" provision to the effect that all em-
ployees, after 60 days' employment in the bargaining unit, "shall, in order that
they continue as employees of the Company, become and remain members of
[the Association] in good standing."
On April 14, 1943, and December 3, 1943, respectively, the Union filed successive
petitions with the Board for an investigation and certification of the representa-
tives of the employees in the bargaining unit covered by the agreement. On June
11, 1943, the Union withdrew the first of these petitions in Case No. 7-R-1420.
3 The undersigned is separately issuing an order correcting the transcript of the hearing
in accordance with a stipulation entered into, and forwarded to him, by the parties.
"The certification was issued in a proceeding initiated by the Union's petition for an in-
vestigation and certification of representatives and was based upon the results of an elec-
tion conducted by the Board, to which the respondent consented and in which 590 votes
were cast for the Association, 120 for the Union, and 7 for no union
DETROIT GASKET AND MANUFACTURING COMPANY 681
After hearing upon the second petition in Case No. 7-R-1659, the Board issued
a Decision on March 23, 1944,6 in which it rejected the respondent's and the
Association's contention that their 1943 agreement constituted a bar to a deter-
mination of representatives. The Board, at the same time, also directed that
an election be conducted to determine whether the employees in the bargaining
unit desired to be represented by the Union or the Association.
From early spring in 1943, just before the Union filed its first petition in 1943,
until the election tinder its second petition was actually held by the Board on
April 13, 1944, a number of the respondent's employees signed union bargaining
authorizations and solicited union authorizations from their fellow employees.
Among them were the 10 employees whom the complaint alleges to have been dis-
•crlminatorily discharged on April 14, 1944. Thus, at least by the early part of
April 1943, Clarence Haughton, Bruce Bortner, Stella Smith, Clarence Price, and
Roy Gardner had signed authorizations designating the Union as their bargaining
agent, and at about that time began soliciting similar authorizations from the
-other employees in anticipation of an election under the petition filed by the
Union in April 1943. In about November 1943, they were joined by Fred Baehr,
'Thomas Hancock, John Schleich, and Gerald Dumas. Sam Baugh signed a union
authorization on March 1, 1944, shortly after he had been hired by the
respondent.°
The respondent's plant superintendent, Herbert Doolittle, and its foremen
early became aware of 'this activity among its employees on behalf of the Union.
Doolittle testified that throughout 1943 and 1944, he had complaints from the
Association's officers and some of his foremen (whose names he could not recall)
concerning solicitation of union membership during working hours by Bortner,
Price, and Gardner, and similar complaints from the same sources during the
early months of 1944 concerning Haughton, Hancock, Baehr, and Baugh. Ac-
cording to Doolittle, upon receipt of these complaints, he instructed his foremen
to enforce the Company's rule against solicitation on company time by meting
out discipline, but was informed by the foremen that they had no absolute proof.
On one occasion, however, in May 1943, General Foreman Norman Moebs repri-
manded Stella.Smith for having solicited memberships during working time. Ray
Moebs, the general foreman's brother, then a nonsupervisory employee, testified
that he had seen Smith passing out cards and had reported the fact first to Fore-
man Kirk and then to his brother, General Foreman Moebs Smith testified that
signed union cards had been removed from the pocket of her apron which she had
hung up in the presence of Foreman Kirk, that Foreman Moebs first told her she
was being discharged for having the cards in her pocket, but then told her he
would let her go that time but she should watch her step. What exactly had hap-
pened to the cards is not clear. According to Smith, Ray Moebs told her that he,
and not Foreman Moebs, had them. Certainly, on this state of the record, it can-
not be found that Foreman Kirk or any supervisory employee took Smith 's union
cards, nor can Foreman Moebs be criticized for-his enforcement of the rule against
solicitation on company time. Consequently, the undersigned finds no significance
in the incident aside from its demonstration of the respondent's knowledge of
Smith's solicitation on behalf of the Union at this early date.
5 Matter of Detroit Gasket and Manufacturing Company, 55 N. L. R. B. 718
° In a number of instances, the employees were hazy in their recollection of the dates of
their affiliation with the Union and the beginning of their activities on its behalf. The
findings in the text, however, are based upon a composite of the definite portions of the
testimony given on particular points by the employees and by William Kemsley, the Union's
organizer at the time , and also upon facts shown by signed authorization cards of several
of the employees in question.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is credible testimony, however, concerning coercive and improper state-
ments-made by foremen of the respondent to several of the employees named inn
the complaint up to the very time of the election on April 13, 1944. Thus, the
undersigned finds, in each case upon the testimony of the employee to whom the
statement was made and contrary to the denial of the foreman in question (1),
that a month or so before the election upon employee Price's objection to being
sent to the roof of the respondent's plant to search for leaks while it was raining,
Jacob Buehrle, his foreman, said to Price, "I am damn tired of you CIO guys tell-
ing us what we are going to do. As soon as this war is over, all you CIO guys are
going to find yourself out of here on your -"; (2) that shortly before the,
election of April 13, 1944, Foreman William ("Red") Stewart asked employee-
Sam Baugh if Baugh wanted to bet on the election, and that when Baugh pro-
duced $2,800, Stewart refused, saying, "It won't be long before we are able to give
you God Damn CIO agitators out" ; 7 (3) that about the same time, Foreman
Stewart also asked Roy Gardner if the latter wished to bet on the election, and,
upon Gardner's refusal, said, "We'll get you CIO guys out of here. We'll throw
you right out on your -" ; 8 and (4) that, on the morning of the election,
April 13, 1944, Asssitant Foreman Harold Metz told employee Gerald Dumas to.
take off his CIO button and to put on an Association button'
As has already been noted, the election on the Union's petition in Case No.
7-R-1659 was held on April 13, 1944. Of a total of 576 ballots cast, only 9 were
challenged and 2 were void. Of the remaining valid bMlots counted, 401 votes.
were cast for the Association, 159 for the Union, and 5, for no union. In view
of the Association's majority, the Board certified the Association on April 22,
1944, to be the exclusive bargaining representative of the respondent's hourly
rated, non-supervisory employees.
B. The separations
1. The discharge request made by the Association to the respondent ; the exclusion
of the employees in question from the plant on the morning of April 14, 1944
During the morning of April 13, 1944, shortly before the Board-conducted
election was held on that day, the Association's officers met in the plant's cafe-
teria. They decided that, in the event the Association won the election, the 10
employees named in'the complaint should be expelled from the Association -and
that the respondent and the employees should be immediately informed by letter
of the expulsion. When the count of the ballots late that afternoon showed that
the Association had won, letters over the signature of the Association's president,
Larry Welkenback, were mailed to each of the expelled employees notifying him
of his expulsion from membership because of his "activities, leadership, and
r Although he denied having made the statement thus attributed to him by Baugh, Stewart
admitted that he had asked Baugh for a bet and then had rejected Baugh's offer to bet
$2,800.
8 Stewart not only denied having made this statement but also testified that he had no
conversation with Gardner about a bet on the election.
9 The undersigned does not credit (1) testimony given by employee Fred Baehr, and
denied by Assistant Foreman George Ervin Roy, that approximately 3 months before the
election, Roy referred to the CIO as "radical" and told Baehr that employees Clarence Price
and "Chuck" Smith, who were union members, were radical and "it would he best if they
kicked them out;" nor (2) testimony, given by employee BruceBortner that in February
or March 1944, Foreman William Kerr, who died before the hearing, said to Bortner, "The
damn CIO keeps things in an uproar with their organizing and you can 't get anything
done."
DETROIT GASKET AND MANUFACTURING COMPANY 683
work in behalf of a rival union seeking to represent the [respondent's] em-
ployees" and further informing him that the Association was requesting the
respondent to discharge him. At the same time, the Association also mailed a
letter to the respondent, advising the respondent of the dismissal of the 10
employees from membership in the Association, and requesting their discharge
"forthwith."
According to the uncontradicted testimony of employee James Cox, one of the
Association's members, which the undersigned credits, there was a discussion
on April 13, after the election, between some of the Association's officers, includ-
ing Welkenback, and several of the Association's members including Cox, in
which "a lot of them said that they didn't want any CIO members in [the plant]
.. . and it was generally understood that we were supposed to be at the gate
to prevent those employees from getting into trouble by coming in." Welkenback
testified credibly and without contradiction that late in the afternoon of April 13,
he informed Superintendent Doolittle of the Association's expulsion of Clarence
Price and a number of other employees (whose names he did not mention) and
of the intention of members of the Association to exclude them from work the
following morning. Welkenback urged Doolittle to do something for Price who
had lost a hand in an accident at the plant a few years previously. According
to Welkenback's further credible, uncontradicted testimony, Doolittle suggested
that Price see him the following afternoon instead of reporting to work in the
morning, and Welkenback thereupon sent word to Price to that effect.
As a result, Price did not report for work on the morning of April 14, but
saw Superintendent Doolittle later in the day, as will hereinafter appear. Nor
did Clarence Haughton report to the plant on the morning of April 14, since he
was the only employee of the expelled group who worked on the second shift
which began at 3: 30 o'clock in the afternoon. All the rest of the employees to
whom the Association had sent expulsion letters,10 however, attempted to enter
the plant gate between 7 and 7: 30 a. in., their regular starting time. President
Welkenback, of the Association, met each of them as he was about to enter the
gate. In the presence of an apparently changing group of other employees
including officers of the Association and employee Ray Moebs, who had been
asked by the Association's officers to assist them, Welkenback showed them
a copy of the letter sent by the Association to the respondent and containing
their names, and told them in substance that they could no longer- work in the
plant. The eight employees thus excluded left the plant and neither they nor
the other two employees expelled from membership in the Association have
worked for the respondent since that time.
While there is no substantial dispute as to these occurrences around the plant
gate that morning, there is conflict in the testimony as to whether anything else
happened. Several of the excluded employees testified that the respondent's
watchman stopped them and said he could not let them in but the undersigned
credits the denial of George Thompson, the only watchman then on duty, that
he had stopped these employees or had any instructions from the respondent
to that effect. There was, however, a more complicated factual dispute as to
whether Foreman Buehrle and Foreman "Red" Stewart participated in the ex-
clusion of employees Dumas and Baugh that morning.
With reference to the Dumas incident, Dumas, Baehr, and Gardner testified
that, as they approached the gate in that order and a short distance behind
101. e, Roy Gardner, John Schleich, Fred Baehr, Tom Hancock, Stella Smith, Gerald
Dumas, Bruce Bortner, and Sam Baugh.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each other, Foreman Buehrle pointed Dumas out to Welkenback while Dumas
was still some distance from the gate. Dumas further testified that, after
Welkenback advanced to meet him and had told him of his expulsion, Foreman
Buehrle said to Dumas, "Now we will get rid of you CIO guys from now on."
Baehr, Gardner, and Welkenback testified that Buehrle was there and did, speak
to Dumas but that they did not overhear what Buehrle said. With reference
to the exclusion of Baugh from the plant, Baugh and Bortner testified that, as
they approached the gate in that order, Foreman "Red" Stewart called Baugh
a "damn CIO" guy or agitator. Baugh further testified that Stewart, grabbing
Baugh by one arm while another man grabbed the other arm, "dragged [Baugh]
out towards the sidewalk." Bortner in his testimony made no reference to any
such conduct on the part of Stewart, but testified that Stewart, although present,
was inside the gate.
Both Buehrle and Stewart, in flatly denying the acts and statements thus
attributed to them with reference to the exclusion of Dumas-and Baugh from
the plant, testified that, each of them having separately parked his own car
in the respondent's yard, Buehrle joined Stewart briefly at the plant door within
the yard, that they were no closer to the gate than 45 feet, and that, although
they saw men at the gate, they overheard none of the conversation, knew nothing
of what was going on, and said nothing to the men themselves except that, accord-
ing to Stewart, he asked Ray Moebs what was happening, when Moebs detached
himself from the group at the gate just as Buehrle entered the plant door.
According to Stewart, Ray Moebs told him it was none of his business and pushed
him toward the door. Ray Moebs corroborated this part of Stewart's story and
added that Baugh had not been turned away at the gate, as Baugh had testified,
but had entered the plant and that Ray Moebs, following him, had then persuaded
Baugh to leave the plant, with the statement, "My friend, I don't think you're
working here any more."
Upon consideration of this conflicting testimony as to the exclusion of Dumas
and Baugh from the plant, the undersigned credits (1) the testimony of Dumas,
Baehr, Gardner, and Welkenback that Foreman Buehrle was present at the gate
when Dumas sought to enter the plant;" '(2) their testimony that Buehrle
spoke to Dumas; (3) Dumas', Baehr's and Gardner's testimony that Buehrle
had pointed out Dumas to Welkenback; and (4) Dumas' testimony that Buehrle
said to him, "Now we will get rid of you CIO guys from now on." On the other
hand, not only Bortner's failure to corroborate Baugh's testimony as to Stewart's
seizing Baugh by the arm but his testimony that Stewart was inside the gate
renders both Bortner's and Baugh's testimony unreliable in the opinion of the
undersigned. The undersigned therefore credits Stewart's denial that he seized
Baugh by the arm or made the statements attributed to him by 'Bortner 'and
Baugh, and also credits Ray Moebs' testimony that Baugh actually entered
the plant and left upon being ordered out by Moebs
As the eight employees were being excluded from the plant that morning, other
employees gathered on the lawn outside the gate with a dummy labeled '1C. 1. 0."
After 7: 30 o'clock, they formed a parade and, numbering several hundred,
marched through the gate, through the yard, into and through the plant and the
office, and then back to the street where they hung the dummy According to
Superintendent Doolittle's testimony, which the undersigned credits, he came to
11 This particular finding is fortified by the 'tact that, notwithstanding Buehile's denial
of being present at the gate or knowing what was happening, Supeiintendent Doolittle
testified ( as «ill hereinafter be noted) that Buehrle advised him that the employees had
been kept out of the plant that morning by the officers of the Association
DETROIT GASKET AND MANUFACTURING COMPANY 685
work that morning between 8: 00 and 8: 30 o'clock and not only saw the parade
but had learned from several foremen around the gate, including Buehrle and
Stewart, that officers of the Association had stopped and barred some of the em-
ployees from entering the plant . Doolittle merely ordered his foremen to get the
men back to work ; he did not discipline the employees for participating in the
parade on company time nor for excluding the expelled members of the Associa-
tion from work.
2. Initial conversations with the respondent 's representatives on April 14, 1944;
the filing of the original charge herein
Of the eight employees prevented from working on the morning of April 14,
1944, Baugh went home and the other seven' immediately reported in person
to William Kemsley, the Union's local representative and organizer, that they
and several other people had been kept out of the plant. Identifying himself as
the representative of the Union and the expelled employees, Kemsley thereupon
asked Superintendent Doolittle over the telephone whether the employees who
had been refused admittance to the plant that morning were discharged, and if
so, upon what ground. Doolittle told Kemsley he had no knowledge of any dis-
charges, but in answer to Kemsley's further question as to whether the em-
ployees could come back to work, stated that he had no jurisdiction over that and
referred Kemsley to Lloyd Diehl, the respondent's president. When asked the
same questions by Kemsley over the telephone, Diehl, too, said he had no knowl-
edge of any discharges and suggested that Kemsley speak to the respondent's
attorney, Grant Cook.
Kemsley thereupon telephoned to Cook, who asked for time to ascertain the,
facts. In a second telephone call made by Kemsley to Cook, a half or three-
quarters of an hour later and still before noon , Cook told Kemsley that the em-
ployees in question were not discharged and might return to work. In turn, he
was assured by Kemsley that Kemsley as the Union 's representative was au-
thorized to represent the employees. In response to Kemsley 's specific question,
Cook stated, however, that upon their return to work, the employees expelled from
the Association would receive the same protection as other employees but that
the respondent "could not control the actions of individuals in the [Association]
who have advised us that they definitely were going to bodily throw them out
if they do go back to work." 13
Kemsley never advised the excluded employees that Cook had said they were
not discharged although his telephoned request of Cook for protection against
violence took place in the presence of the group of seven of them, and he there-
upon discussed with them the desirability of establishing the fact of their dis-
charges by their returning to the plant and again seeking admittance. Before
they did so, however, the seven employees accompanied Kemsley to the Board's
13I e, Roy Gardner , John Schleich , Fred Baehr , Tom Hancock , Stella Smith , Gerald
Dumas, and Bruce Bortner.
13 These findings as to Cook 's conversations with Kemsley are based for the most part
upon the testimony of Cook According to Kemsley 's testimony , Cook told him that,
although the expelled employees had not been discharged , it was up to them whether they
wanted to return to work. Kemsley later testified that it was his best recollection that
Cook told him these employees would, not be allowed in the plant because the Company
wanted no trouble, although Cook may have also told him the expelled employees would not
be given "any special protection."
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Office where the Union through Kemsley filed the original charge in the
instant case."
During the same day, April 14, 1944, Attorney Cook informed the Board's
Regional attorney over the telephone of the fact that the Association, having just
won the Board-conducted election, had requested the discharge of a number of
employees under the Association's "closed shop" contract with the respondent,
but that the respondent would not discharge these employees. Cook also told
this to Leonard Donaldson, the Association's attorney, when Donaldson called
him on the telephone the same day. Cook, however, did not transmit the re-
spondent's decision not to discharge the employees to Superintendent Doolittle
until Monday morning, April 17. According to Doolittle's testimony, which the
undersigned credits, until he was apprised by Cook on Monday, April 17, that he
was not to discharge the employees expelled from membership by the Association,
he was of the opinion that the respondent would have to honor the discharge
request and abide by the "closed shop" contract.
3. Conversations between the expelled employees and Superintendent Doolittle
on the afternoon of April 14, 1944
In the meantime , on April 14, 1944, Clarence Price appeared at the office of
the respondent with President Welkenback, of the Association, to see Superin-
tendent Doolittle. Referring to the fact that the Association had just won the
election and the losers would have to accept the result in good grace , Doolittle
stated to Price and Welkenback that the controlling decision as to whether,
Price would continue to work for the respondent was not in the hands of the
,respondent but in the hands of the Association, and that "this is a,closed shop
and we abide by the contract." Upon Price's repeated expression of his desire
to keep his job, Doolittle remarked, "Then it is, entirely up to you. If you want
your job and can talk turkey to these fellows [the Association] and can convince
them it is in their hands, I think as far as this situation is concerned, it is
entirely between Price and the Association. As far as cooperation is concerned,
we will be glad to do all we can." The three men also discussed Price's right to
a hearing by the Association on the; expulsion charges, and Welkenback, in
giving assurance of such a hearing, said to Doolittle, "We just want to make,
sure that he [Price] can be put back by us." Doolittle replied, "As far as we are
concerned, we haven't taken him off the pay roll." In this, connection, Doolittle
said further that the respondent had not yet received the Association's discharge
request, examined a copy thereof proffered by Welkenback, and in substance
stated that when and if the request was received, Price's removal would be
automatic and effective until withdrawn in writing by the Association. The
conversation closed with Welkenback's suggestion that the Association would
notify the respondent in writing of the Association's decision on Price."
14 The only one of the 10 employees embraced in the discharge request made by the As-
sociation who was not mentioned in the original chaige was Clarence Price, whose name
was thereafter added in an amended charge filed on March 22, 1945.
13 The findings in the text with reference to this conversation and its substance are based
-upon Doolittle's testimony. The points of difference between his testimony and that of,
Price are (1) that, according to Doolittle's testimony, the conversatiton occurred in the
morning before Kemsley called him, whereas Price testified that he visited Doolittle at 2
o'clock in the afternoon ; (2) that, according to Dool ittle's testimony , Welkenback appeared
with Price and participated in the conversation in the presence of General Manager Balfe
and a stenographer , whereas Price testified that he spoke to Doolittle alone and in this
respect was partially corroborated by Welkenback's testimony that he was not present ; and
(3) that, according to Doolittle's testimony , his remarks were limited to the substance set
DETROIT GASKET AND MANUFACTURING COMPANY 687
Later the same 'afternoon, the seven employees who had visited the Board's
Regional Office with Keinsley accompanied him to the plant between 3 and 3: 30
p. m 1° Although their shift ended at 3:30 p. m., they attempted to enter the
gate, telling the watchman on duty, Edward Sabourin" that they wanted their
pay checks, which incidentally were due that day for the week ending April 7.
The watchman directed them to the office, which they entered directly from the
street and without passing through the gate.1B
As the seven employees talked briefly among themselves on the sidewalk before
going into the office, however, Clarence Haughton came to the gate to go to
work on the afternoon shift. President Welkenback, of the Association, and
employee Otis Cox, who were standing in the yard, came to the gate and told
Haughton he could not enter because of his union activities prior to the election.
Haughton thereupon joined the other employees on the sidewalk and, with them,
entered the office. Kemsley remained outside in his car.
In requesting the respondent's receptionist to let them in to see Superintendent
Doolittle, one of the eight employees also asked her to have Welkenback present.
Doolittle spoke with the group before Welkenback appeared, however. The em-
ployees, in substance, told Doolittle that they had a "grievance" because of their
expulsion from the Association and their understanding that they would there-
fore be discharged, that they were entitled to a hearing within 24 hours, and
had asked that Welkenback come into the office so that they could present their
"grievances." Doolittle showed them the letter from the Association requesting
that they be discharged, which he said he had just received. Stella Smith
asked, "Are we discharged from the Company?" Fred Baehr remarked, "You
are the ones to hire and fire" Dumas said, "We were barred from the plant."
With respect to Smith's question and the comments of Baehr and Dumas, Doo-
little said,
We have a contract out here. We get a letter-it is spontaneous. As
far as making arrangements [for the employees' presentation of a grievance
to the Association], we will be glad to do that . . . Someone is expelled from
forth in the text, whereas, according to Price, Doolittle expressed regret at Price's having
lost his job, promised to try to secure a job for him somewhere else, and asked Price to come
back in a few days The undersigned regards as immaterial the exact time of day when the
conversation took place. On the other points of difference, Doolittle's testimony seems
more reliable in view of the fact that, shortly afterwards, according to his testimony and
that of the stenographer, he secured a copy of her notes which set forth "the sum and
substance" of the conversation. Furthermore, as will hereinafter be apparent, Doolittle's
version of his remarks to Price is consistent with the substantially undisputed substance of
his remarks to the group of expelled employees when they visited him later in the afternoon-
a meeting which Welkenback unquestionably attended. On the other hand, both Price and
Welkenback were testifying from their unaided memories and Price's version of the instant
conversation, so far as it dealt with Doolittle's promise to get him a job elsewhere, was
concededly the subject of another conversation or conversations between him and Doolittle
the following week.
10 Their testimony as to the time varied from Bortner's and Dumas's estimate of between
4 and 5 o'clock to Baehr's estimate of 2 or 3 p. in. Clarence Haughton, who appeared at
the plant gate to go to work at 3 • 30 p. in. and who joined the others outside the gate, as
will hereinafter appear, fixed the time at about 3 : 10 p. in.
17 Thompson, the morning watchman, went off duty at 3 p. in.
18 These findings are based upon the testimony of Tom Hancock and John Schleich.
Bortner and Dumas testified that the watchman said he had orders not to let them enter.
Sabourin, the watchman, testified that he did not recall seeing any of the expelled employees
that afternoon and denied that lie had orders to exclude these employees, explaining, how-
ever, that he had general orders not to admit any employee except at the time his shift began
work or within 15 minutes thereafter unless the employee had a special pass and that if
employees appeared to get their checks he directed them to go to the office. '
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the [Association ], we have no other alternative . When you are automatically
dismissed from the [Association ], we have no other alternative until such at
time as you make arrangements with the committee [of the Association].
You have a closed shop contract , we abide by the contract . . . after all we
are the Company , we have a contract . You should have a little time at least
to form a decision . I don't think there is any question in the world. That
it is your battle with the Association. I don't see where the Company
enters the situation
When Welkenback came into the room. Doolittle told him the employees wanted
to present "their complaint," and they thereupon handed Welkenback a request
for a hearing. WW'elkenback said lie would notify them when he found out from
the Association's attorney whether there would be a hearing. Finally, in answer
to Schleich 's question as to why the 10 people were expelled from the Associa-
tion, Welkenback said, "You are supposed to be known organizers of the CIO."
The employees then left the respondent's office, some of them first getting their
pay checks for the week ending April 7
4. Subsequent events
Superintendent Doolittle testified that on April 14, Sam Baugh called him on
the telephone; that Baugh told him "that he wanted to quit, that he didn't like
the Company, . . . that he was going back to Tennessee, . . and he wanted
to know when he could get his money" ; that Doolittle told Baugh to come in for
his check ; and that upon calling at the office the following morning, Saturday,
April 15, Baugh received his pay check and signed the respondent's form of
"quit slip," giving "quit-dissatisfied " as the reason for his leaving the respond-
ent's employment Baugh denied that he had called Doolittle on the telephone
on Friday, April 14, or that he had told Doolittle that he was dissatisfied and
wanted to quit. Baugh further testified , and Doolittle in turn denied, that
on Saturday morning, April 15, Doolittle told Baugh that he was discharged
and could not return to the respondent's employ; and that he could have his
pay check only if he signed a "quit slip," Baugh further testified that, although
he signed the form of quit slip which was admitted in evidence, it did not then
contain the language "quit-dissatisfied " The undersigned credits Doolittle's
version of the immediate , factual circumstances surrounding Baugh's signing
the "quit slip" and his receipt of his last wages from the respondent.
Within a few days after Doolittle's first conversation with Price on Friday,
April 14, they again spoke in Doolittle 's office concerning Price 's situation. There
is a conflict in the testimony as to whether , as Price testified , Doolittle rejected
Price's request to return to work at the respondent 's plant and offered to get him
a job elsewhere , or whether, as Doolittle testified , he told Price "that he was not
off the pay roll and that as far as I was concerned he was absolutely at liberty
to go back to work, but that in my own opinion I thought it would be a little
better if he got together with the [Association ], and I also told him that if he
didn't like to do that, that I would be happy to try to get him a job in some
other plant." Doolittle, however, did not deny, and the undersigned therefore
credits, . related testimony given by Welkenback to the effect that Welkenback,
upon hearing Price's version of his conversation with Doolittle , went alone to
Doolittle and asked whether Price could not be placed in a job at one of the
respondent 's other plants to which Doolittle replied that that was out of the
question because if he put Price back " it wouldn 't be fair" to the other employees
expelled from the Association unless he took them all back . The obvious incon-
DETROIT GASKET AND MANUFACTURING COMPANY 689
sistency between this undenied statement by Doolittle to Welkenback and Doo-
little's testimony that he had offered to permit Price to continue working at the
plant impels the undersigned to doubt Doolittle's testimony concerning his con-
versation with Price on Saturday or Monday, April 15 or 17.1° Upon these
considerations, the undersigned credits not only the testimony of Welkenback
that Doolittle said it would be unfair to secure a job for Price at one of the
respondent's other plants unless all the expelled employees were returned to their
jobs, but also Price's testimony that Doolittle refused to permit him to go back
to work for the respondent and offered, instead, to find him a job elsewhere.
By letters from the Association dated April 15, each of the 10 employees
expelled from membership was advised that a hearing would be held by the
Association on April 20, to "review" their expulsions. By a letter received by
the respondent on Tuesday, April 18, the Association informed the respondent
that it had granted a hearing on the expulsions, and requested the respondent to
withhold action on the Association's original discharge request until further
advice from the Association on Friday, April 21. The letter also stated:
In the meantime the Association has taken steps to preclude these persons
from coming into the plant, to assure their safety because of the attitude of
the other employees toward them since the results of the election have been
made known, and because of the demonstration by the employees at the
plant April 14th, when an attempt was made to forcibly eject these em-
ployees, who were warned by the officers of the Association to stay away
from the plant to avoid physical violence. It is claimed that these employees
have been guilty of improper conduct in the plant and are agitators and/or
leaders of a rival union seeking to overthrow [this Association]. If this
is the case, under the constitution of the Association these persons have been
properly dismissed from membership in the Association.
The employees whose expulsion was thus to be "reviewed" by the Association,
appeared with a Union attorney and a stenographer at the appointed place and
time on April 20, but, upon being informed by the Association's attorney that
the Union attorney and the stenographer could not attend the hearing, they
left without entering the hearing. At this hearing, the Association sustained
the expulsion of the 10 employees. The Association by letter dated April 20 and
received by the respondent on April 22, thereupon advised the respondent that
the expulsions had been sustained and further requested the respondent "forth-
with to comply with the terms of the contract and dismiss these persons forth-
with from employment as employees of your Company." The respondent never
replied to this letter.
On April 21, the morning after the expulsion hearing but before the respondent
had received the letter just mentioned, all the employees thus expelled from
membership in the Association except Sam Baugh and Stella Smith, came to
the plant and asked Superintendent Doolittle for their final pay checks and
releases. Recognizing the group of employees whose discharge the Association
had requested on April 14, Doolittle asked them to wait in the lobby, which they
did. Doolittle returned to his office and asked the respondent's paymaster,
191t should also be noted that, at the time fixed by Doolittle for his conversation with
Price, he had not been instructed by Attorney Cook to disregard the Association's discharge
request and, according to his own testimony, he was therefore still of the opinion, as lie
had informed Price and the other expelled employees the preceding Friday, that the dis-
charge requests were automatically effective under a binding "closed shop contract" with
the Association.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edward Jarchow,'to prepare and issue the employees', checks. Without Doo-
little's asking him to do so, Jarchow also prepared "quit slips," for the em-
ployees' signatures , giving "quit-releases requested" as the reason for the ter-
minations of employment. Jarchow then entered the lobby, presented each of
the employees,with his check, and asked him to sign the quit slip, which the
employees refused to do.20 Stepping into Doolittle's office, Jarchow told Doolittle
that the men refused to sign the quit slips. Upon Doolittle's instructions, Jarchow
returned to the lobby and gave each of the employees his check without insisting
upon a quit slip. Several days later, the respondent issued for each of the
employees the releases required by the War Manpower' Commission Regulations
as a condition precedent to their obtaining other jobs.,-
Roy Gardner testified without contradiction that on May 13, 1944, he visited
Lloyd Diehl, president of the respondent, at the latter's office, and that to his
statement that he was presenting himself to go to work, Diehl said Gardner had
been away from his job too long, that he was let out of the plant because of his
union activities, and would have to be reinstated by the Association before. he
could be accepted for employment by the respondent. According to Gardner's
further uncontradicted testimony, Diehl refused Gardner's request that he be
given protection so that he could return to work and, in an ensuing discussion of
unions; said that he had never wanted the C. I. O. in his plant. Diehl did not
appear as a witness nor was any ,reason shown for his failure to do so. The
undersigned credits Gardner's uncontradicted testimony as to his conversation
with Diehl on May 13, 1944.
C. Conclusions
1. Interference, restraint, and coercion
It will be recalled, as the undersigned has found, (1) that during the pre-
election period, Foremen Buehrle and Stewart said in effect to several different
employees who were members of the Union that union members would lose their
jobs at the plant, and (2) that Assistant Foreman Metz told employee Dumas on
the morning of the election to take off his CIO button and to put on an Association
button. The undersigned finds that the respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. The discharges
The respondent contends that it did not discharge the 10 employees named
in the complaint but that, in any event, discharges were justifiable under the
circumstances of the case, in view of the respondent's union-shop contract with
the Association. Reference to the facts already found indicates that both of
these contentions are without merit.
On April 14, 1944, the day after the Union lost the election to the Association,
the respondent was confronted (1) with the Association's request that the 10
employees named in the complaint be discharged under the union-shop contract,
because of their expulsion from membership in the Association, and (2) with
20 Fred Baehr testified, but Jarchow denied, that in refusing to sign the quit slip, Baehr
said to Jarchow, "I'm not signing that, I'm not quitting" ; that Jarchow then said, "You're
not fired" ; that Baehr remarked, "I'll go back into work then" ; and that Jarchow replied,
"Oh, no, you can't do that." The other employees, although they were all together in the
lobby at the time, gave no testimony on this alleged conversation. The undersigned credits
Jarchow ' s denial of Baehr's testimony.
'DETROIT GASKET AND 'MANUFACTURING COMPANY 691
knowledge that the expulsion and the discharge request were based upon the
employees' activities on behalf of the Union and that the Association's officers
and members had already prevented some of these employees from entering and
working at the plant that morning and would bar the others. On the same day,
the respondent's attorney, Grant Cook, advised both the Union's representative
and the Board's Regional Attorney that the employees in question had not been,
and would not be, discharged by the respondent notwithstanding the Association's
request under the contract. To the Union's representative, Cook also stated that
if the expelled employees returned to work, they would receive the same pro-
tection as other employees but that the respondent "could not control the actions
of individuals in the [Association] who have advised us that they definitely
were going to bodily throw them out if they do go back to work " The respondent's
superintendent, Doolittle. however, told the employees themselves that afternoon
that the Association's request for their discharges was automatically effective
under the union shop contract, "that it is your battle with the Association," and
that he did not see "where the Company enters the situation." Neither Doolittle
nor any other representative of the respondent made any attempt to correct the
statements thus made by Doolittle to the employees although Doolittle was
informed by Cook a few days later that the employees were not to be discharged
and Doolittle thereafter saw all the employees in question, except Baugh and
Smith, at least once, when the employees' refusal to sign "quit slips" indicated
clearly that they were not quitting but regarded themselves as having been
discharged.
While Cook's and Doolittle's statements on April 14 differed as to whether the
respondent was "discharging" the 10 employees named in the complaint, their
statements and the only possible interpretation of the respondent's subsequent
conduct, were consistently and clearly to the effect that the respondent would
not assure continued employment for these 10 people at the plant in the face
of opposition by the Association and its members. Thus, Cook explicitly refused
protection against the threats of bodily eviction made by members of the Asso-
ciation. Doolittle, in similar vein, referred to the employees' attempts to retain
their jobs as "Your battle with the Association," in which, he said, the re-
spondent was not concerned. Finally, the respondent never took any steps to
prevent the Association's continued exclusion of the 10 expelled employees from
the plant, either by open prohibition, by protest to the Association, or by dis-
ciplining or reprimanding any of the Association's participants even when the
Association, in its letter of April 18, bluntly informed the respondent that,
pending review of the expulsions, "the Association has taken steps to preclude
these persons from coming into the plant, to assure their safety because of
the attitude of the other employees toward them . . . and because of the demon-
stration by the employees at the plant April 14th, when an attempt was made
to forcibly eject these employees, who were warned by the officers of the Asso-
ciation to stay away from the plant to avoid physical violence."
Upon these facts, the undersigned finds that the respondent, ostensibly aban-
doning its right and avoiding its obligation to select its employees without
discrimination, in fact acquiesced to the Association's physical exclusion from
the plant of the 10 employees named in the complaint, and, by accepting the
separation of these employees from their work, in effect discharged them!'
21 See Matter of Fred P. Weissman , 69 N. L. R. B. 1002 , and 71 N. L R. B . 147, and cases
cited therein. As the Board stated in the Weissman case :
It has been held by the Board and the Courts that an employer may not . . .
remain aloof and indifferent to the exclusion of a group of employees because of their
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that even assuming it discharged the 10 employees,
as the undersigned has just found , the discharges were justified under its
union-shop contract with the Association. It is undisputed that the respondent
knew on April 14, from the statement made by Union Representative Kemsley
to the respondent's Attorney Cook and also from the statement made by Wel-
kenback, the Association's president, to the employees in Superintendent Doo-
little's presence, that the Association's expulsion of the employees from
membership and its request for their discharge were based upon their activities
in behalf of the Union. This fact was confirmed later in the letter of the
Association to the respondent on April 18. The respondent, however, points
out, as the undersigned has already found, that Superintendent Doolittle reason-
ably believed that not only all 10 of the expelled employees had been active on
behalf of the Union within the 31/ months preceding the election of April 13
and thus during a period in which rival union activities are protected in spite of
a union-shop or closed-shop contract,` but that three of them had been openly
supporting the Union during 1943, and thus from the beginning of the 1943
union-shop contract during which time their activities would not be protected. 3
Upon this basis, the respondent argues that so far as it knew when it received
the Association's request for the discharge of these employees, the request may
have been based upon the early, unprotected, rival union activities of the em-
ployees in question rather than upon their conduct immediately prior to the
election. The respondent contends, therefore, that, even should the Board find
that it discharged the 10 employees, the discharges would nevertheless be
justified under the union-shop contract
This line of argument is without merit. The Association's discharge request
was made immediately after the election and the period of 41/, months (luring
which the Union's petition for certification was pending. For the respondent
to have assumed, as it now contends it did, that the discharge request was based
upon the known earlier, unprotected, dual unionism of the 10 employees rather
than upon their later protected attempts to secure a change of their bargaining
representative in the election is so unreasonable as to be incredible. Further-
more, the respondent's presently asserted reliance upon its knowledge of the
early unprotected activities of only 3 of the 10 employees in question as justi-
fication for the discharges of all of them under the union-shop contract, is not
only equally unreasonable but is also incompatible with the facts already found
by the undersigned and with the respondent's general position as to its passive
union activities, by a rival group Indeed, there is an affirmative duty upon the part
of an employer to assure that its right of discharge is not depurated to any union or
non-union group, and by relinquishing the exercise of that right to such a group, an
employer violates the Act.
See also Matter of Brown Garment Manufacturing Company, 62 N. L. R. B 857, 874,
where the Board said :
Even where no other unfair labor practices are committed, an employer who takes
no action to prevent the exclusion of his employees from work by members of a rival
organization is himself responsible for the exclusion , such exclusion being tantamount
to discharge.
See also N . L. R. B. v. Hudson Motor Car Co., 128 F. ( 2d) 528, enforcing 34 N. L. R. B. 815.
22 See Matter of Rutland Court Owners , Inc, 44 N. L. R. B 587, 46 N. L. R. B. 1040 ;
Local No. 2880, Lumber and Sawmill Workers' Union v N. L. R. B., 158 F. (2d) 365 (C. C. A.
9) cert. granted May 5, 1947 , enfg. Matter of Portland Lumber Mills, 64 N. L. R B. 159;
N. L. R. B. v. American White Cross Laboratories, 160 F. (2d) 75 (C C. A. 2) , Matter of
Rheem Manufacturing Co , 70 N. L. R. B. 57, 58-59
23 See e. g. Matter of Southwestern Portland Cement Co , 65 N. L. R. B. 1.
DETROIT GASKET AND MANUFACTURING COMPANY 693
role with respect to the separations. For the respondent actually pretended
not to honor nor to rely upon the Association's discharge request but, avoiding
open and unequivocal discharges of the employees, it stood by and permitted
the Association to accomplish the same result by excluding the employees from
the plant.
Finally, in the opinion of the undersigned, even had the Association' s'dis-
charge request been expressly predicated upon the early, unprotected rival union
activities of these employees, the respondent would not have been justified
under the union-shop contract in honoring the request and effecting the dis-
charges of the employees in question during or after the period in which they
and other fellow employees were properly seeking to change their representa-
tive. For, although the employees had been vulnerable to discharge during the
preceding, unprotected period, they nevertheless remained employees and mem-
bers of the appropriate bargaining unit at the sufferance of the Association which
had failed to request their discharges. As such continuing employees and
members of the bargaining unit, they were entitled to participate freely, without
coercion from the Association, in the timely decision whether another union
should supplant the Association as their representative. Their rightful and
complete freedom in this respect during the period preceding the election called
by the Board should certainly not be curbed, because of earlier dual unionism,
by any legally sanctioned threat of ultimate discharge, at the will of the con-
tracting union, should the contracting union be successful in the election.
The undersigned, therefore, concludes not only that the respondent discharged
the employees named in the complaint because of their activities on behalf of
the Union, but also that the discharges were not justified by the union-shop
contract between the respondent and the Association. The undersigned ac-
cordingly finds that the respondent thereby discriminated in regard to its
employees' hire and tenure of employment and discouraged membership in the
Union 24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices within the meaning of Section 8 ( 1) and ( 3) of the Act , the under-
24 As the Courts have held , delay in the Board's prosecution of a complaint after the
timely filing of charges is no basis for a dismissal of the complaint . ( N L. R. B . v. Electric
Vacuum Cleaner Co , 315 U. S. 685 ; Triplex Screw Co v N. L. R. B., 117 F. (2d) 858
(C. C. A 6), N. L.R B v J G Boswell Co., 136 F. (2d) 585 (C. C A 9); N. L. R. B. v.
Wilson Lines, Inc., 122 F. ( 2d) 869 (C C. A. 3)) The respondent 's contention in its answer
to the contrary is, therefore, without merit Nor is there merit in the further allegations
in the respondent's amended answer that its union-shop contract with the Association was
posted and made available for inspection for 3 months pursuant to the rider to the 1947
Appropriations Act (Act of July 26, 1946, Public Law No. 549 , 79th Congress-2d Session)
and that therefore the Board should not have prosecuted the present case. The rider clearly
does not apply to the present case since it is not a case "arising over an agreement." No
attack has been made upon the validity of the Association 's union -shop contract.
798767-49-vol 78-45
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed will recommend that it cease and desist therefrom and take certaip
affirmative action in order to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated against Roy
Gardner, John Schleich , Fred Baehr , Tom Hancock , Stella Smith, Gerald Dumas,
Bruce Bortner , Clarence Haughton , Sam Baugh , and Clarence Price in regard to
their hire and tenure of employment , thereby discouraging membership in the
Union, a labor organization , by discharging each of said employees on or about
April 14, 1944 , and thereafter refusing to reemploy them. Since the discharges,
Baugh secured employment elsewhere on April 17, 1944; Baehr on or about
April 25, 1944 ; Price, Gardner , Dumas and Hancock, on or about May 1, 1944;
Bortner, on or about May 15, 1944; Schleich , on or about May 25, 1944 ; Smith, on
or about May 29, 1944; and Haughton , on or about August 10 , 1944. In view of
the fact that the respondent gave these employees their necessary releases on
or about April 24, 1944, the undersigned is not convinced that any of the dis-
charged employees except possibly Haughton , wilfully incurred any loss of earn-
ings between the time of his discharge by the respondent and his first employ-
ment elsewhere . From the date of their first employment subsequent to their
discharge until the time of the hearing , Schleich and Baehr were employed con-
tinuously , and Baugh and Price were also employed continuously except for
relatively short periods normally incident to changes in jobs. Although Gardner
was unemployed for 3 substantial periods, he credibly testified that during
these periods he sought employment unsuccessfully , and gave the names of sev-
eral, though not all, of the employers to whom he had applied . Dumas was un-
employed only for 1 month since his discharge and then only because of fire dam-
age at the plant in which he was working . Hancock, a man 59 years old, who
had been employed by the respondent for 10 years, was unemployed during the
month of May 1945, was laid off a subsequent job in August 1945, and has not
worked since then. He testified credibly , however, that during his periods of
unemployment , he registered with the United States Employment Service and,
upon their referrals , was refused work because of his age. Smith worked
steadily until August 17, 1945, when she was laid off. She did not register with
the United States Employment Service and sought work only during the first
3 weeks. She refused an offer of reemployment from her last employer in
June 1946 in accordance with her husband ' s wishes and thus has not been em-
ployed since August 17, 1945. Bortner has worked steadily except for the period
from August 4, 1945, until December 1, 1945. Although he testified that he
sought employment during that time, he could not recall where he had done so
nor whether he had registered with the United States Employment Service. The
only evidence as to Haughton 's employment since his discharge by the respondent
is furnished by written answers made by him after the hearing in response to a
letter from the attorney for the Board , which the undersigned has admitted
in evidence pursuant to the stipulation of the parties. According to these
answers, Haughton registered with, and visited the United States Employment
Service several times, but could not recall when ; he worked for a taxi cab com-
pany from August 10 , 1944, until September 7, 1946; he quit that job because the
work was "very nerve wracking and to build a home for one of [his] sons;" and
has not been employed since then.
Upon this evidence , the undersigned finds no reason to believe that any of
the discharged employees except Smith , and possibly Bortner and Haughton,
have wilfully incurred any loss of earnings since their discharges . The under-
signed finds that Smith wilfully incurred a loss of earnings from September 7,
DETROIT GASKET AND MANUFACTURING COMPANY 695
1945, until the date of the hearing. In the cases of Bortner and Haughton, how-
ever, the evidence is inconclusive as to whether they wilfully incurred any losses
from the time of their discharges by the respondent until the date of the hearing.
For it does not satisfactorily appear from the record whether Bortner registered
with the United States Employment Service, when Haughton registered, nor
whether Bortner or Haughton otherwise sought employment during their periods
of idleness since their discharges by the respondent. Upon this state of the
record, the undersigned recommends further investigation of these matters by
the Board in the cases of Bortner and Haughton, should the parties be unable
amicably to adjust the amount of their back pay.
It will be recommended that the respondent offer Roy Gardner, John Schleich,
Fred Baehr, Tom Hancock, Stella Smith, Gerald Dumas, Bruce Bortner, Clarence
Haughton, Sam Baugh, and Clarence Price immediate and full reinstatement
to his or her former or substantially equivalent positions 25 without prejudice to
his seniority or other rights and privileges; and that the respondent also make
each of the said employees whole for any loss of earnings suffered by him by
reason of the respondent's discrimination against him by payment to him of a
sum of money equal to that which he would normally have earned as wages from
the date of the discrimination against him, to the date of the offer of reinstate-
ment less his net earnings 26 and losses wilfully incurred by each, during that
period.
From the manner in which it discharged the 10 employees involved in the
present proceeding, it is apparent that the respondent was not under the im-
pression that it was bound to discharge them, and therefore justifed in doing
so, because of its union-shop contract with the Association. The discrimination
practiced by the respondent, therefore, cannot be regarded as the result of a
mistaken impression on the part of the respondent that it was acting properly
and not in violation of the Act. It represents, on the contrary, a deliberate resort
to discrimination which "goes to the very heart of the Act," 2' and constitutes
the grossest form of violation of the rights guaranteed by Section 7, and gen-
erally protected by Section 8 (1) of the Act. That an employer has thus deliber-
ately resorted to discrimination, indicates not merely his disposition to commit
similar acts of discrimination in the future but also (1) his broader and basic
"attitude of opposition to the purposes of the Act to protect the rights of em-
ployees generally," 28 and (2) the consequent likelihood of his resorting to the
lesser acts of interference, restraint, and coercion with these rights as guaranteed.
by Section 7 and protected by Section 8 (1) of the Act. The preventive purposes
of the Act will be thwarted unless the Board's order is coextensive with this threat.
In order, therefore, to make effective the interdependent guarantees of Section 7,
25 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 65'N L R. B. 837. For the reasons expressed by the Board in other
cases, the undersigned regards compliance with this recommendation as essential to the
effectuation of the policies of the Act in the present case, even though it appears from the
record that several of the employees in question may have secured substantially equivalent
employment elsewhere See Matter of Ford Motor Company, 31 N. L. R. B. 994, 1099-1100;
Matter of Phelps Dodge Corporation, 35 N. L. R. B 418, 420-421.
26 Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-8.
27N L. R. B. v. Entwistle Manufacturing Co., 120 F. (2d) 532, 536 (C. C A. 4 ). See also
N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F (2d) 350, 353 (C. C A. 7).
28 May Department Stores Company v. N. L. R. B., 66 S. Ct. 203, 213, 326 U. S. 376.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prevent industrial strife which burdens and obstructs commerce and thus to
effectuate the policies of the Act , the undersigned will recommend that the
respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Local 174 , International Union, United Automobile , Aircraft and Agricul-
tural Implement Workers of America (UAW-CIO), and Detroit Gasket Em-
ployees Association are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of Roy
Gardner, John Schleich , Fred Baehr , Tom Hancock , Stella Smith , Gerald Dumas,
Bruce Bortner , Clarence Haughton , Sam Baugh and Clarence Price, and thereby
discouraging membership in Local 174, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (UAW-CIO), the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act. _
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent , Detroit Gasket and Manufactur-
ing Company , a Michigan corporation , Detroit, Michigan , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local 174, International Union, United
Automobile , Aircraft and Agricultural Implement Workers of America (UAW-
-CIO), or in any other labor organization of its employees , by discriminatorily
discharging employees or by discriminating in any other manner in regard to their
hire or tenure of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist Local 174, International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America (UAW-CIO), or any
other labor organization , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action , which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Roy Gardner , John Schleich , Fred Baehr , Tom Hancock , Stella
Smith, Gerald Dumas, Bruce Bortner , Clarence Haughton , Sam Baugh, and
Clarence Price immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and
DETROIT GASKET AND MANUFACTURING COMPANY 697
privileges , and make each of them whole for any loss of pay he may have suffered
by reason of the discrimination of the respondent against him by payment to
each of them of a sum of money equal to that which he normally would have
earned as wages from the date of the respondent 's discrimination against him to
the date of the offer of reinstatement , less his net earnings and losses wilfully
incurred by him during the period ;
(b) Post at its plant in Detroit , Michigan , copies of the notice attached hereto
and marked "Appendix A." Copies of said notice , to be furnished by the Regional
Director for the Seventh Region, shall, after being duly signed by the respondent,
be posted by it immediately upon receipt thereof, and maintained by it for
sixty ( 60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure that said notices are not altered , defaced, or
covered by any other material ;
(c) Notify the Regional Director for the Seventh Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report, the respondent has notified the Regional
Director for the Seventh Region in writing that it will comply with the foregoing
recommendations , the National Labor Relations Board issue an order requiring
the respondent to take the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen ( 15) days from the date of the service of the
order transferring the case to the Board , pursuant to Section 203.38 of said Rules
and Regulations, file with the Board, Rochambeau Building , Washington 25, D. C.,
an original and four copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof; and any party or
counsel for the Board may, within the same period , file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs , the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director . Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203 65. As further provided in said Section 203.39, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10 ) days from the date of service of
the order transferring the case to the Board.
WILLIAM F. SCHARNIKOW,
Trial Examiner.
Dated June 30, 1947.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor
organizations , to join or assist LOCAL 174, INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA
(UAW-CIO ), or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Roy Gardner Gerald Dumas
John Schleich Bruce Bortner
Fred Baehr Clarence Haughton
Tom Hancock Sam Baugh
Stella Smith Clarence Price
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
DETROIT GASKET AND MANUFACTURING COMPANY,
Employer.
By -------------------------------------------------
(Representative ) ( Title)
Dated -----------------------------
NOTE: Any of the above -named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered , defaced, or covered by any other material.