Diamond T Motor Car Co.

National Labor Relations Board - Board Decisions

Dec 8, 1939

18 N.L.R.B. 204 (N.L.R.B. 1939)

In the Matter of DIAMOND T MOTOR CAR COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA
Case No. C-1107.-Decided December 8, 1939
Motor Truck Assembling Industry-Interference, Restraint , and Coercion:
speech and statements to employees conveying preference for inside labor organ-
ization and opposition to outside organizations during outside union's campaign-
Company-Dominated Union: domination of and interference with formation and
administration ; formation in accordance .with respondent 's expressed preference
for an inside organization ; financial and other support; subsequent independence
in administration not curative of initial domination and interference ; disestab-
lished, as agency for collective bargaining-Contract: with company-dominated
union abrogated-Discrimination: charges of, dismissed ; evidence fails to sustain
charges.
Mr. Robert R. Rissman, for the Board.
Miller, Gorham, Wescott & Adams, of Chicago, Ill., by Messrs. Ed-
ward R. Adams, James B. Wescott, and Robert English, for the
respondent.
Messrs. Joseph M. Jacobs and Harry U. Bernstein, of Chicago, Ill.,
for the Union.
Evelyn Neilson Cooper, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union, United Automobile Workers of America, herein called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint dated October 11, 1938, against Diamond T Motor
Car Company, Chicago, Illinois, herein called the respondent, alleg-
ing that the respondent had engaged and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. A copy of the complaint,
accompanied by a notice of hearing, was duly served upon the
respondent.
18 N. L. R. B., No. 31.
204
DIAMOND T MOTOR CAR COMPANY 205
With respect to the unfair labor practices, the complaint alleged, in
substance, that (1) the respondent discriminated in regard to hire and
tenure of employment and discouraged membership in the Union
by discharging and refusing to reinstate C. R. Cahill;' (2) the re-
spondent dominated and interfered with the formation and adminis-
tration of a labor organization known as Automotive Workers In-
dustrial Union, herein called the Association, and contributed support
to it; (3) the respondent advised, urged, and warned its employees
to refrain from joining or retaining membership in the Union, inter-
rogated employees regarding their union affiliations, and threatened
employees with discharge if they joined or remained members of the
Union; and (4) by the foregoing acts and each of them, the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Thereafter, the respondent duly filed an answer to the complaint,
which was amended during the hearing, admitting certain allega-
tions of fact as to its business, but denying the alleged unfair labor
practices.
Pursuant to notice, a hearing was held on October 24, 25, 26, 27, 31,
and November 1, 1938, at Chicago, Illinois, before Charles W. Whitte-
more, the Trial Examiner duly designated by the Board. The Board,
the respondent, and the Union were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties.
Prior to the hearing the Association filed a petition to intervene,
which was denied by the Regional Director. At the opening of the
hearing, the Association filed an amended petition to intervene, which
was denied by the Trial Examiner. Upon appeal from the Trial
Examiner's ruling, the amended petition to intervene was disallowed
by the Board.2 At the close of the hearing the Association renewed
its motion to intervene, which was denied by the Trial Examiner.
During the course of the hearing the Trial Examiner ruled on
several other motions and on objections to the admission of evidence.
At the conclusion of the hearing counsel for the respondent moved
to dismiss the complaint. Ruling on such motion was reserved by the
Trial Examiner. The motion was subsequently denied in part and
granted in part in his Intermediate Report. The Board has reviewed
'In the complaint C. R. Cahill was erroneously designated as C. A. Cahill. By an
amendment to the complaint made during the hearing , "C. A. Cahill" was changed to
"C. R. Cahill."
28ee Pacific Greyhound Lines, Inc. v . National Labor Relations Board , 303 U . S. 272,
1938, reversing 91 F. (2d) 458 (C. C. A. 9), which reversed in part and affirmed in
part Matter of Pennsylvania Greyhound Lines, Inc ., Greyhound Management Company,
Corporations and Local Division No. 1063 of the Amalgamated Association of Street, Elec-
tric Railway and Motor Coach Employees of America , 1 N. L. R. B. 1.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed.3 The rulings are hereby affirmed, excepting the
ruling on the motion to dismiss, which is affirmed only in so far as
it is consistent with the findings, conclusions, and order hereinafter
set forth.
On December 27, 1938, the Trial Examiner • filed his Intermediate
Report, in which he found that the respondent had engaged in unfair
labor practices within the meaning of Section 8 (1) of the Act, but
that the respondent had not discriminatorily discharged C. R. Cahill
or dominated or interfered with the Association within the meaning
of Section 8 (3) and (2), respectively, of the Act. He accordingly
recommended that the respondent cease and desist from engaging in
the unfair labor practices found and that the complaint be dismissed
as to the other unfair labor practices alleged therein. Copies of the
Intermediate Report, in which the parties were advised of their
privilege, on request, to file briefs with and present oral argument be-
fore the Board, were duly served upon the respondent and upon the
Union. On January 19, 1939, both the respondent and the Union
filed exceptions to the Intermediate Report. The Union also filed a
brief in support of its exceptions. On January 30, 1939, the respondent
filed a reply brief. Neither party requested oral argument. The
Board has considered the exceptions to the Intermediate Report and
the briefs submitted. In so far as said exceptions are inconsistent with
the findings, conclusions, and order hereinafter set forth, the Board
finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS , OF FACT
1. THE BUSINESS OF THE RESPONDENT 4
The respondent is an Illinois corporation, having its principal office
and place of business in Chicago, Illinois, and a service branch in
Long Island City, New York. It is engaged in the designing, as-
sembling, sale, and distribution of motor trucks and motor truck parts
3 The Trial Examiner permitted the Union on motion to amend its second amended
charge, preliminary to the amending of the complaint by the Board , alleging that Cahill
was discharged because he was not a member of the Association rather than , as originally
alleged, because he was a member of the Union . Counsel for the respondent took exception
to this ruling on the ground that , since the Board Rules and Regulations require a charge
to be made under oath , it can only be amended under oath and by the original maker.
The amtndment was offered in open hearing by one of the Union 's co-counsel . The charge
had originally been made by the other one of its two counsel . The respondent, on motion
of its counsel, was allowed 3 days in which to answer the complaint as amended on the
basis of the amended charge . Under the circumstances , the safeguards provided by the
Board Rules and Regulations were substantially satisfied and the respondent was in no
way prejudiced . we therefore do not find any fatal procedural defect.
4 The findings in this section are based on a stipulation of facts.
DIAMOND T MOTOR CAR COMPANY 207
and accessories . This proceeding is concerned only with the respond-
ent's Chicago plant.
From October 1, 1937 , to September 30, 1938, approximately 90
per cent of the materials used in the production of trucks were pur-
chased and shipped from outside the State of Illinois. During the
same period , the respondent produced finished products valued in
excess of $8,000,000, approximately 90 per cent of which were shipped
outside the State, about 25 per cent having been shipped to foreign
countries . The respondent normally employs more than 500 persons
in the manufacturing and servicing process at its Chicago plant.
H. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America, is a
labor organization affiliated with the Congress of Industrial Organ-
izations, herein called the C. I. O. It admits to membership employees
of the respondent.
The Automotive Workers Industrial Union is an unaffiliated labor
organization , admitting to membership automotive employees , exclu-
sive of supervisory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion; domination of and inter-
ference with the Association
In the early spring of 1937 the Steel Workers Organizing Com-
mittee , herein called the S. W. O. C., affiliated with the C. I. 0., com-
menced to organize the respondent 's plant, and during the month of
March 1937 secured a number of applications for membership from
among the respondent 's employees. During the same month, C. A.
Peirce, the respondent 's vice president,5 questioned Frank Koci, an
employee, as to whether or not he had seen S. W. O. C. cards passed
around the shop. At approximately the same time , Plant Superin-
tendent Courval similarly questioned Joseph Tishcovske, an employee
who had signed a S. W. O. C. card , and said, "Joe, it is like this, Mr.
Tilt, the owner of this company, will not stand for any . . . outside
union . . . If Mr . Tilt finds out organization is going on here I am
going to lose my job, Mr. Peirce will lose his job, because Mr. Tilt will
close this plant down." Koci's and Tishcovske's testimony was not
denied . We find that by Peirce's and Courval's interrogation of Koci
and Tishcovske, respectively , and by Courval's statement to Tishcovske,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
5 In this capacity , Peirce was in charge of production and engineering , and labor relations
at the respondent 's Chicago plant.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 24, 1937, a Chicago newspaper, the "Chicago Herald and
Examiner," carried a brief news item stating that the United Auto-
mobile Workers contemplated extending unionization "under the
C. I. O. banner" to the respondent's plant. This news came to the
attention of Peirce. He telephoned Tilt, the respondent's president,
who was out of the city, and informed him of the announcement.
Peirce testified, and we find, that Tilt advised, "Well, you better talk
to the men about this situation and tell them we don't want a strike;
we don't want a cessation of our work, such as Hercules 6 have had;
we can not afford to be tied up here ; business is going good ... and
a strike would be a very serious matter . . . You talk to the men, tell
them of our friendly relations and our cooperative spirit ... and tell
them we don't want any trouble."
On the same day, following this conversation, Peirce called a meet-
ing in the plant of all the employees. At about 1: 30 the men left
their work and assembled, as instructed by the foremen. Peirce ad-
dressed the group at some length. There is substantial agreement con-
cerning the content of his speech. Peirce mentioned having seen the
news item and pointed out that there had been no strikes at the plant
since his arrival there in 1918. He also said that he was working on
proposed wage increases and was considering the question of vacations.
Peirce testified, and we find, that during the course of his speech he
stated :
I have read the Wagner Act, and while I don't pose as any author-
ity on it, I can say that you have a perfect right to organize in
any way you see fit a union in our plant ... There are three
forms of union that I know of. There is the Federation of Labor,
there is the C. I. O. and there is an independent union form of
organization, and any of those are acceptable to me. However,
personally, since I am going to conduct the negotiations probably
with the representatives of whatever union is formed, naturally
I would like to talk and deal with a man or men who know our
business in our plant, understand our peculiar working conditions
and can talk intelligently about them . .. By all means, don't
let us stop work with any strike or any disturbance during these
times when we have some business.
In this speech, delivered to the employees assembled by the foremen
in the plant during working hours at a time when self-organizational
efforts were in their initial stages, Peirce, one of the respondent's
principal executive officers, iterated the respondent's already asserted
opposition to an outside labor organization and declared its preference
for an inside organization. Thus, Peirce alluded to the present satis-
factory condition of the respondent's business, contrasting it with the
6 Referring to the Hercules Motor Company, which supplied the respondent with motors.
DIAMOND T MOTOR CAR COMPANY 209
prevailing disruption in the automotive industry as a whole, a condi-
tion which he attributed to the current wave of C. I. 0. strikes. Con-
tinuing, he advised the employees, on the one hand, of their right
under the Act to organize as they desired, but, on the other hand,
stated that he, as the individual likely to handle collective bargaining
negotiations for the respondent, preferred to deal with "a man or men
who know our business in our plant," or, in other words, an inside
organization. The latter statement obviously offset his professed
recognition of the employees' right to select their own form of organ-
ization and constituted a direct appeal for the formation of an inside
union. Moreover, on the same occasion Peirce referred to the coopera-
tive attitude of the respondent, and in that connection mentioned that
he was preparing wage increases and considering the matter of
vacations. Whether these remarks were purposely intended to induce
adherence to his expressed wishes is immaterial, for under the circum-
stances they would inevitably be so construed by the employees.
Peirce testified, and it is likewise contended in the respondent's brief,
that in making this speech he was actuated solely by fear of a strike
and by his desire to avoid an interruption in the respondent's business.
Peirce admitted that there was no immediate threat of a strike at the
plant and that his alarm was occasioned by the adverse effect of strikes
elsewhere upon the respondent's production. Whether or not this
apprehension was the motive for Peirce's speech is immaterial, since
it is plain that his statements went far beyond an appeal for peaceful
labor relations, as we have hereinabove found. We find that by this
speech, delivered under the circumstances stated, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act.7
When Peirce concluded his talk, Walter Grassow, an employee,
requested him and the foremen present to leave the assembly, in order
that the men might discuss the matter of organization among them-
selves. Peirce and all but two of the foremen withdrew immediately.
The latter two were again requested by Grassow to leave, and they
departed. There is a conflict in the evidence as to whether or not
those two foremen remained within hearing distance of the discussion
which ensued throughout most of the remainder of the afternoon.
We find that they did not. During the ensuing discussion, some of
the men urged C. I. 0., and others A. F. of L., affiliation, while some
advocated the formation of an independent organization. There was
7 See National Labor Relations Board v. The Falk Corporation , 102 F. ( 2d) 383 (C. C. A.
7), enforcing Matter of The Falk Corporation and Amalgamated Association of Iron,
!Steel and Tin Workers of North America, Lodge 1528 , 6 N. L. It . B. 654, where the Court
said : ". . . the voice of authority may, by tone inflection , as well as by the substance of
the words uttered, provoke fear and awe quite as readily as it may bespeak fatherly
advice. The position of the employer , where, as here , there is present , genuine and sincere
respect and regard, carries such weight and influence that his words may be coercive
when they would not be so if the relation of master and servant did not exist."
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentiment against A. F. of L. affiliation because "they ... figured it
would be split up, our whole shop, that way, all different crafts and
trades working there." There was also considerable opposition to the
C. I. O. because of the then current strikes in the automotive industry.
C. R. Cahill, an employee who had previously applied for S. W. O. C.
membership, was among those who argued in favor of the C. I. O.
He also explained "the workings of a union group, an outside inde-
pendent organization, solely . . . for the benefits of the men." Later
in the afternoon the assembled employees decided to resolve the ques-
tion by secret ballot. Cahill suggested that they vote either for the
C. I. O. or for an inside union. Two employees were selected from
each department to supervise the balloting. The votes were cast on
time slips and scraps of paper and were deposited at the time clock
as the men left the plant for the day. The counting of the votes took
place in Peirce's office, its use for this purpose having been requested
by the men. Peirce was present but did not participate. The vote
was substantially in favor of an inside organization.
On the next day, March 25, two men were selected by the employees
in each department to act as representatives at the initial organizational
meeting of the Association. That afternoon approximately 30 such
representatives, including Cahill, met in the shipping office of the plant
during working hours.,' Questions of dues, legal assistance, and
grievances were discussed and Cahill was elected temporary chairman.
At the request of the group,.Cahill summoned Peirce to explain why
two of the representatives had not been permitted to attend. There
is no evidence that any other agent of the respondent attended. Cahill
testified that Peirce used this occasion to offer him a "printed constitu-
tion and bylaws." This testimony was not corroborated by other wit-
nesses who were present at the meeting and Peirce categorically denied
it. Cahill admitted that he did not accept or look at the proffered
pamphlet. Under these circumstances, we do not credit Cahill's
testimony concerning Peirce's alleged offer.
Other organizational meetings were held outside the plant almost
nightly during the subsequent weeks, for the purpose of drafting the
Association's constitution and bylaws. On April 18, the first open
meeting of the Association was held, off the respondent's premises.
Officers were elected, Cahill being named president, and the constitu-
tion and bylaws were adopted. Thereafter, a proposed contract was
drafted by the Association's officers and executive committee and sub-
mitted to the respondent's officials. Cahill admitted that after reading
the proposed contract Peirce stated, "That it was a way too high, that
the company could not afford to pay those prices." Other phases of
the proposed contract were also objectionable to the respondent. Sub-
s Cahill 's foreman gave him permission to attend the meeting , saying, °... If I had been
selected why I would have to go .. .
DIIA MONI) T MOTOR CAR Conl-MANY 211
sequently, the Association had additional meetings with the manage-
ment. A contract covering the Association's members only was signed
on June 16, 1937, after being approved by acclamation at a meeting
of the employees held on the respondent's time and premises.
The Association also negotiated with the management on behalf of
the employees concerning grievances. Cahill cited one instance where
two discharged men were reinstated through the efforts of the grievance
committee.
The respondent permitted Association dues to be collected on com-
pany time.0 It also consented to the erection of Association bulletin
boards in the plant. And in July 1937, it contributed approximately
$90 to help the Association defray the expenses of a plant picnic, the
Association having incurred a deficit as a result of the picnic.
Late in July 1937, dissatisfaction with Cahill's administration of
the Association developed within the membership, culminating in his
expulsion from the Association on September 15, 1937.10 Thereafter,
Cahill was succeeded as president by Tom Law, an employee. On
December 9, 1937, the respondent and the Association entered into a
collective contract, superseding the above-mentioned June 16 contract,
for a term of 1 year and subject to renewal thereafter.
About April 1938, an undetermined number of the respondent's
employees left the Association to join the Union. During this period
Peirce approached Walter Stanisz and, after discussing his work,
inquired about the "labor situation," stating, "I heard that there were
C. I. O. cards floating around the shop," and that "some of the fellows
go to C. 1. 0. meetings." Peirce also asked, "Why ... don't you fellows
seem to get along with Tom Law?" and, "If you fellows don't like
Tom Law, why don't you get him out of there and get another man in
his place?" Peirce did not refute Stanisz's account of this incident.
On the same day Stanisz reported his conversation with Peirce to Plant
Superintendent Courval. Courval said, "I don't see why you attend
these outside meetings." Stanisz then inquired if he had "done any-
thing wrong," and Courval replied, "I hope not, they got your name
on a list." A few days later, Hank Schwabe, Stanisz's strawboss,
reported to him that Courval had inquired if any of the employees
had been talking about outside unions and meetings, and a few days
later also reported that Courval had asked if Stanisz was a good
worker. During the same period William Crowell, an employee, was
accosted by Courval, who said, "Say ... they tell me you are a C. I. O.
member," and who told him he had been seen in the plant signing a
union card. Neither Courval nor Schwabe testified.
° This permission was subsequently withdrawn at the suggestion of the Board's field
examiner when investigating the charges filed in this case.
11 The circumstances surrounding his expulsion from the Association are more fully
discussed in connection with his allegedly discriminatory discharge , considered in Section
III B, infra.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 21 or 22, 1938, a union committee had an audience
with Peirce regarding the posting of C. I. O. notices in the plant.
Permission to post such notices was withheld by Peirce pending advice
of counsel; there is nothing in the record to indicate that permission
was subsequently granted. On the occasion of this occurrence Peirce
asked the union representatives what was "wrong with the organiza-
tion that was in the plant" and why they did not "get back inside
the fence and play ball." Peirce did not deny having made these
remarks.
We find that by the immediately preceding statements and acts
of Peirce and Courval, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Conclusions as to the Association
During the formative stage of the S. W. O. C. membership cam-
paign the respondent, through the interrogations and comments of
Peirce and Courval, opposed outside affiliation of its employees and,
through Peirce's talk on March 24, directed their organizational efforts
toward the formation of an inside organization. By these acts the
respondent furnished the initial impetus for the formation of an in-
side organization with the result that the Association was created and
the first effort to form an outside union was abandoned. Thus the
respondent not only restricted its employees' free exercise of their
right to self-organization, as we have hereinabove found, but also
dominated and interfered with the formation of the Association.
The respondent supplemented its advocacy of an inside organization
with direct assistance and support to the Association. The election of
March 24 was held on company time and property. At least one
employee representative, Cahill, was given the express permission of
his foreman to attend the initial organizational meeting of the em-
ployee representatives held on March 25 on company time and prop-
erty. Association bulletin boards were erected in the plant and for
several months dues were collected during working hours. The meet-
ing at which the Association's contract of June 16 was approved by
the membership was held on company time and property. In July
the Association received a financial contribution of about $90 from the
respondent in connection with the expenses of a plant picnic. These
acts were in marked contrast to the respondent's opposition toward an
outside organization from which it withheld even the use of its bulle-
tin boards "pending advice of counsel." Finally, in the spring of 1938,
when the C. I. O. again undertook to organize the employees, the
respondent by its statements renewed its attack on the latter and
sought to avert disaffection from the Association.
DIAMOND T MOTOR CAR COMPANY 213
The respondent contends in its brief that the evidence establishes
the Association to be in fact an independent organization and hence
that the respondent cannot be deemed to have dominated, interfered
with, and contributed support to the Association in violation of Section
8 (2) of the Act. In support of this position, it points to the follow-
ing facts: (1) The Association was organized after the open discus-
sion and the secret balloting which followed Peirce's speech of March
24; (2) Cahill as well as certain other duly elected officers of the
Association had previously applied for membership in the S. W. 0. C.
and openly advocated C. I. 0. affiliation during the discussion on
March 24, while Cahill, as president, repeatedly stressed the need for
a truly independent union; (3) no agent of the respondent participated
in the mechanics of organizing the Association; (4) the July 16 con-
tract represented, not the dictates of the management, but a com-
promise on behalf of both parties; and (5) the Association's griev-
ance committee functioned effectively. These facts do not have the
probative force attributed to them by the respondent, especially when
considered in relation to our foregoing findings. While it may be con-
ceded that certain individual employees or groups of employees exer-
cised some measure of independence during Cahill's incumbency as
president of the Association, it does not follow that the independence
of certain members of the Association establishes the independence
of the Association. By reason of the facts already set forth, the Asso-
ciation was, from the outset, an organization of the respondent's choice,
rather than an organization of the employees' "own choosing." The
exercise of a limited independence of action, within the framework of
an organization otherwise dominated and supported by an employer,
does not render such organization a free agent of the employees as
contemplated by the Act.
We find that by its acts hereinabove discussed the respondent dom-
inated and interfered with the formation and administration of the
Association and contributed financial and other support to it and there-
by interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act. The December 9, 1937,
contract described above, having been made with a company-dominated
labor organization, is illegal and void."
B. The allegedly discriminatory discharge of C. R. Cahill
The complaint, as amended during the hearing, alleged that on
August 12, 1937, the respondent discharged and has since refused to
"See National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) 167
(C. C. A. 3), modifying and enforcing Matter of Stackpole Carbon Company and United
Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B. 171; petition for
certiorari denied November 6, 1939; Titan Metal Manufacturing Company v. Titan Em-
ployees Protective Association, 308 U . S. 615, enforcing Matter of Titan Metal Manufac-
turing Company and Federal Labor Union No. 19981, 5 N. L. R. B. 577.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employ Cahill for the reason that he was not a member of the Asso-
ciation and engaged in concerted activities with other employees at
the plant for their mutual aid and protection. In its answer the
respondent denied the specific act of alleged discrimination and af-
firmatively stated that Cahill was laid off along with other employees
on or about the same date, because of a decrease in the volume of its
business.
Cahill was hired by the respondent on August 18, 1936. With the
exception of about the first 2 weeks, he was continuously employed
until August 12, 1937, as a member of a three-man "special equipment"
crew. The work of this crew consisted of attaching to trucks special
equipment, such as side gasoline tanks, facilities for sleeper cabs and
trailer brake connections, which were not attached by regular finishers
on the assembly line. Until Cahill joined the crew it was composed
of only two men.
About the first of August 1937, Cahill, as president of the Associa-
tion, prepared and distributed to the employees a notice calling a meet-
ing for August 10. The notice, which reflected the existing dissension
within the Association, read in part :
Shall we keep the ground we have gained or shall we let some of
those among us who for a little personal gain would sell us back
into the slaving underpaid conditions, that are sure to follow.
Prior to the meeting on August 10, Peirce asked Cahill if he was
responsible for this notice and demanded an apology for the comment
therein about "slaving underpaid conditions." Cahill refused to apol-
ogize. Peirce then declared that he ought to fire him. Cahill began
to pick up his tools, whereupon Peirce told him to continue his work.
Cahill's and Peirce's accounts of the incident are substantially similar.
At the Association meeting on August 10, Cahill was temporarily
suspended for engaging "in activities unfriendly and injurious to the
Union [Association]. and the membership at large" and for creating
"friction, strife or disorder between the members, or between the
Union [Association] and the employer, when such conduct is without
the knowledge, approval and direction of the Executive Committee." 12
Cahill testified, and we find, that at about 3: 30 on the afternoon of
August 12 he was advised by Courva.l that "there would be no more
12 These provisions are contained in Article VIII of the Association's Constitution and
Bylaws, Board Exhibit No . 12, governing the "Removal of Officers and Committeemen."
The Association's action was based on charges preferred by the executive committee be-
cause of Cahill 's efforts on behalf of the respondents service-station employees. This
group of employees was covered under the Association's June 16 contract. The group had
approached Cahill in mid-July 1937 for information regarding possible affiliation with the
A. F. of L. Chicago Garage Mechanics Union, to the end that it might obtain the benefits
of preference or priority in case of transfer to other garages under the jurisdiction of the
same union . Cahill had communicated with an A. F . of L. organizer . So far as the record
discloses, he did not thereby incur the displeasure of the management, as contended by
the Union.
DIAMOND T M.OT•OR CAR COMPANY 215
work for me"; that he asked "what was the matter, was things getting
slow" and that Courval answered "yes"; that he "figured it was just a
lay off" and accordingly suggested that he would leave his tools with
the crew; that Courval objected, telling him to take his tools with
him "so you won't come back and say that your tools are missing or
have been stolen"; that he then inquired why it was "that a younger
man than I am is still working on the crew and I am being laid off,"
to which Courval replied "that was his orders from the company."
Courval was not called to testify. Peirce testified, however, that he
had nothing to do with Cahill's lay-off and that the responsibility
therefor rested entirely with Courval. Whether, in dismissing Cahill,
Courval acted on his own initiative or at the direction of Peirce is
immaterial, as is hereinafter shown.
On or about August 18, Cahill returned to the plant for his pay
check. Cahill testified that while there he saw Peirce in the office,
asked "How about my work" and was told, "You have been expelled
from the union [Association]. You do not have a card and you cannot
work here, and you can't get back in." 13 Peirce denied the place and
substance of this conversation. The record discloses that Cahill was
not expelled from the Association until September 15, and that it was
not until after such date that Peirce learned either of Cahill's sus-
pension on August 10 or of his ultimate expulsion from the Associa-
tion. Peirce testified, however, that he did meet Cahill out in the
plant shortly after his lay-off and that Cahill asked, "How would you
like to have the Federation of Labor in your plant now?" In view
of all the evidence, we cannot credit Cahill's testimony, and find that
the conversation occurred as stated by Peirce. Accordingly, we find
that Cahill did not apply for reemployment on or about August 18,
1937. There is no evidence in the record that at any time thereafter
he was denied employment by the respondent.
The Trial Examiner found that the evidence did not support the
above-mentioned allegations in the complaint concerning Cahill's
dismissal on August 12, 1937. We agree with his conclusion., It is
not established, as the Union contends, that Cahill's dismissal is
traceable to Peirce's annoyance at his statement about "slaving under-
paid conditions," contained in the notice of the Association's August 10
meeting, or that because of his annoyance Peirce maneuvered Cahill's
suspension from the Association. And regardless of whether his dis-
missal was Courval's sole responsibility, as Peirce testified, or was
ordered by Peirce, as Cahill testified, it is not established that either
13 The contract provided that "Any new employee kept on the job for thirty ( 30) days
shall be considered to have qualified himself for his job, insofar as the first party is con-
cerned and said employee shall be deemed to have qualified for Union [ Association]
membership after being so employed for thirty days." We find that this provision did not
constitute membership in the Association a condition of employment.
283029-41-vol. 18-15
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Courval or Peirce had knowledge on August 12 of Cahill's suspension
from the Association 2 days earlier. On the contrary, the evidence
shows, as we have found, that prior to his suspension there was ap-
parent dissatisfaction among the membership with his administration
of the Association, culminating in his expulsion, and that the man-
agement first learned of Cahill's suspension and subsequent expulsion
from the Association more than a month after his dismissal.
The Trial Examiner further found that Cahill was dismissed, as
alleged by the respondent, because of a decrease in the volume of its
business. We also agree with this conclusion. The respondent's
records which are in evidence, and which were not controverted, show
that, from May 1937 until the date of the hearing in this proceeding,
the trend of employment at the respondent's Chicago plant was de-
cidedly downward; that, from May 5 until August 12, Cahill worked
only part time; that between June 16 and August 12, 19 production
employees in addition to Cahill were laid off; and that thereafter no
new production employees were hired.
However, the Union argues in its exceptions that Cahill was not
dismissed in order of seniority, as provided for in the Association's
June 16 contract, and that his efforts to compel the respondent to
adhere to the seniority provision in the contract constituted one of the
causes for his dismissal. That provision read : ". . . lay-off can .. .
be made only under strict seniority rulings-the last hired to be the
first man laid off." Cahill construed this language as providing for
"plant-wide" seniority, although he admitted that the respondent had
opposed such an interpretation.14 According to Peirce's unrefuted
testimony, a system of ."plant-wide" seniority was proposed by Cahill
during the negotiations for the contract and finally abandoned by him
as being impracticable.'F Peirce also testified, and the respondent's
records are corroborative, that prior to and at the time of Cahill's
dismissal a policy of "occupational" seniority obtained and that Cahill
was dismissed, as were others before him, in accordance with this
policy. There is no evidence that Cahill or the Association challenged
the respondent's seniority policy in the case of the earlier dismissals.
Cahill did not deny that, of the three men comprising the special equip-
ment crew, he had the least seniority. But he did claim that on August
12 there were seven men, all junior to him in terms of seniority, still
employed in Department X, which includes the chassis finishers and
14 About the end of July 1937, the Association decided to install in the plant a "slip
board," that is, a "board with the name of every man employed by the company in it, with
the date of his employment . . . from the oldest man on top to the youngest man on the
bottom." With regard to the posting of that board, Peirce told Cahill he was "taking too
much for granted ." There is no showing in the record that this "slip board" was ever
posted.
15 According to Peirce's testimony , plant-wide seniority was impracticable because of
the varying degrees of skill required for the respondent 's work, its plant being a hand-
assembly plant, where trucks are built to individual order.,
DIAMOND T MOTOR CAR COMPANY 217
assemblers as well as Cahill's special crew. The record discloses that
of those seven employees, there were only two whom Cahill was quali-
fied to replace but that they in fact were laid off 2 days before August
12.11 In view of the above evidence, we find that on or about August
12, 1937, the respondent pursued a policy of occupational seniority,
that such policy was not necessarily violative of the equivocal senior-
ity provision contained in the Association's current contract, and that
Cahill was dismissed in pursuance of that policy.
Although certain circumstances surrounding Cahill's dismissal give
rise to the suspicion that he was discharged for the reasons alleged
in the complaint, the evidence as a whole does not in our opinion war-
rant an affirmative finding to that effect. Accordingly, we shall dismiss
the allegations of the complaint with respect to Cahill.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III A 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 obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has dominated and interfered with the forma-
tion and administration of, and contributed support to, the Associa-
tion, we find that the Association is incapable of serving the respond-
ent's employees as their bona fide representative for the purposes of
collective bargaining. We shall order the respondent to withdraw all
recognition from and disestablish the Association as the representative
of any of its employees for the purposes of collective bargaining. 17
Having also found that the respondent's contract of December 9, 1937,
with the Association is invalid under the Act, we shall order the
respondent to cease and desist from giving effect to said contract or
any renewal thereof.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
"These two mentioned employees were both recalled for short periods during Septem-
her 1937 , but so far as the record reveals neither they nor any other employees were
assigned to Cahill's tasks on the special equipment crew. We find that the respondent
recalled them , in preference to Cahill, in accordance with its current policy of "occupa-
tional" seniority.
17 See Pennsylvania Greyhound Lines, Inc. v. National Labor Relations Board, supra;
National Labor Relations Board v. The Falk Corporation, supra.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Industrial Union, United Automobile Workers of America, and
the Automotive Workers Industrial Union are labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of the Automotive Workers Industrial Union, and by con-
tributing financial and other support to that organization, the respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair .labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. By discharging C. R. Cahill, the respondent has not engaged
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Diamond T Motor Car Company, Chicago, Illinois, and its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of the Automotive Workers Industrial Union, or with the forma-
tion or administration of any other labor organization of its em-
ployees, and from contributing financial or other support to the Auto-
motive Workers Industrial Union, or to any other labor organization
of its employees;
(b) Giving effect to the agreement of December 9, 1937, with the
Automotive Workers Industrial Union, or any renewal thereof, or to
any successor agreement with said organization;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activi-
ties, 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:
DIAMOND T M'O'TOR CAR COMPANY 210
(a) Withdraw all recognition from the Automotive Workers Indus-
trial Union as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor dis-
putes, rates of pay, wages, hours of employment, or other conditions
of employment, and completely disestablish said Automotive Workers
Industrial Union as such representative;
(b) Post immediately in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, a notice to its employees that the respondent will
cease and desist in the manner set forth in 1 (a), (b), and (c), and
will take the affirmative action set forth in 2 (a ) of this Order;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is.
dismissed in so far as it alleges that the respondent discriminated in
regard to the hire or tenure of employment of C. R. Cahill within the
meaning of Section 8 (3) of the Act.