Electric Vacuum Cleaner Co., Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1939

18 N.L.R.B. 591 (N.L.R.B. 1939)

In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, LOCAL 720
In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
UNITED ELECTRICAL & RADIO WORKERS OF AMERICA, LOCAL 720
Cases Nos. C-R66 and R-3.53, respectively.Decided December 01,
1939
Electric Vacuum Cleaner Manufacturing Industry-Interference, Restraint,
and Coercion: employer assisting one of two rival labor organizations : employees,
not covered by closed-shop contract applicable only to new employees, coerced to
join and discharged for refusal to join favored organization; plant closed to
prevent disaffections from favored organization ; plant reopened under misrepre-
sentation as to applicability to old employees of closed-shop contract; execution
of completely closed-shop contract with favored labor organization as part of
campaign of illegal assistance to such organization; threat of strike, no justifica-
tion for illegal conduct of respondent-Remedial Order: special form of : respond-
ent not to require membership in favored organization as condition of
employment until such organization certified by the Board as exclusive represent-
ative; respondent to cease giving effect to any part of contract with favored
organization if and when another organization is certified by the Board-Dis-
crimination: charges of, sustained as to 19 old employees: never covered by valid
closed-shop contract : refusal of employment held to have been immediately
effected by reopening plant with notice that only members of favored labor
organization would be employed ; charges of sustained as to five new employees,
although covered by prior closed-shop contract: prior contract held to have been
abandoned in favor of completely closed-shop contract made with assisted labor
organization ; prior contract held not to afford, justification for refusal to employ
since no notice of existence given; charges of dismissed as to five employees, in
absence of any evidence-Closed-Shop Contract: agreement to require new em-
ployees to become members of labor organization within two weeks after employ-
ment held not to affect old employees; subsequent agreement for closed-shop
contract with assisted organization, executed as part of employer's campaign of
assistance to favored organization; employer ordered to cease giving effect to;
effect of unfair labor practices preventing majority shift prior to execution of
completely closed-shop contract ; execution of completely closed-shop contract held
abandonment of prior contract ; earlier contract held not revived by declaration
superseding contract invalid-Collective Bargaining: charges of failure to bargain
collectively dismissed ; controversy as to appropriate unit not resolved where no
majority shown on basis of either contention-Investigation of Representatives:
controversy concerning appropriate unit; in view of motion to reopen record for
further evidence and lapse of time since filing of petition, proceedings dismissed
without prejudice.
Mr. Harry L. Lodish, for the Board.
18 N. L . R. B., No. 75.
591
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. L. C. Spieth and Mr. H. A. Spring, of Cleveland, Ohio, for the
respondent.
Mr. James B. Carey, of New York City, and Mr. Sam. H. Griff, of
Cleveland, Ohio, for the United.
Mr. Joseph A. Padway, of Washington, D. C., Mr. Edwin F. Woodle
and Mr. Bernard Wachtel, of Cleveland Ohio, for the A. F. of L.
Affiliates.
Mr. John H. Orgill, of Cleveland, Ohio, for the Cleveland Federa-
tion of Labor.
Miss Margaret B. Bennett and Mr. Isadore Polier, of counsel to
the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 22,1937, United Electrical and Radio Workers of America,
herein called the United, affiliated with the Committee for Industrial
Organization,' herein called the C. I. 0., filed with the Regional Di-
rector for the Eighth Region (Cleveland, Ohio) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of production and maintenance employees of Electric Vac-
uum Cleaner Company, Inc., Cleveland, Ohio, herein called the re-
spondent, excluding clerical and supervisory employees, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On the same day, the United filed with the Regional
Director charges alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce within the
meaning of the Act.2
On May 6, 1937, the National Labor Relations Board, herein called
the Board, acting pursuant to Section 9 (c) of the Act and Article III,
Section 3, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered an investigation and authorized ' the
Regional Director to conduct it and to provide an appropriate hearing
1 Now the Congress of Industrial Organizations.
2 As hereinafter more fully set forth , a labor organization was formed among the em-
ployees of the respondent between March 17, and 19, 1937 , officers having been elected
on the latter date , to which a charter as United Electrical & Radio Workers of America,
Local 720 was granted by the United on or about April 1, 1937. The record discloses
that the petition and charges signed by the United , were filed on behalf of United Elec-
trical & Radio Workers of America , Local 720, and that all parties were so advised by the
complaint , the amended complaint , the notices of hearing , and the proceedings had during
the hearing upon the amended complaint and the petition . We shall refer to United
Electrical & Radio Workers of America, Local 720, as the United except where a separate
designation is necessary for clarity.
ELECTRIC VACUUM CLEANER COMPANY, NO. 593
upon due notice. On May 11, 1937; the Board, acting pursuant to
Article III, Section 10 (c) (2), of said Rules and Regulations, ordered
a consolidation of the two cases for the purposes of hearing.
On May 21, 1937, the Board, by the Regional Director, issued its
complaint against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (3), and (5) and Section
2 (6) and (7) of the Act. A motion to make the complaint more
definite and certain having been filed by the respondent, an amended
complaint was filed, on May 27, 1937. A copy of the complaint, ac-
companied by a notice of hearing on the consolidated cases, and a copy
of the amended complaint, accompanied by an amended notice of
hearing on the consolidated cases, were duly served upon the respond-
ent and the United. Notice of hearing, and amended notice of hear-
ing on the consolidated cases were duly served upon International
Molders Union of North America, Local No. 430; Pattern Makers
Association of Cleveland and Vicinity; Metal Polishers International
Union, Local No. 3; International Association of Machinists, District
No. 54; and Federal Labor Union No. 18907; herein jointly called
the A. F. of L. Affiliates, all affiliated with the American Federation
of Labor, herein called the A. F. of L. Thereafter notices of post-
ponement of hearing on the consolidated cases were duly served upon
the respondent, the United, and the A. F. of L. Affiliates.
The complaint, as amended, charged in substance (1) that the
respondent refused to bargain collectively with the United as the
exclusive representative of the employees ;n an appropriate bargain-
ing unit composed of all employees in the production and maintenance
departments, exclusive of clerical and supervisory employees; (2)
that the respondent in March 1937, and at various times thereafter
interfered with, restrained, and coerced its employees in their right
to self-organization, and particularly interfered with, restrained, and
coerced its employees by threatening and acquiescing in threats to
discharge employees who refused to join labor organizations chosen
by the respondent, by uttering and publishing and permitting to be
uttered and published statements, advertisements, and declarations of
intentions to close its; plant, by closing its plant on March 19, 1937,
by refusing on April 5, 1937, to reinstate a large number of employees,
by failing or refusing from and after April 5, 1937, to recall to
employment 28 named employees because they had engaged in con-
certed activities for the purposes of collective bargaining and other
mutual aid and protection; and (3) that the respondent had dis-
criminated in regard to the hire and tenure of the aforesaid 28
employees for the reasons aforesaid and to discourage membership in
the United.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 4, 1937, the respondent filed its answer, which admitted
the interstate character of its business and the appropriateness of the
unit for collective bargaining set forth in the complaint, but denied
the alleged unfair labor practices and stated certain affirmative
matter. By way of affirmative defense the respondent alleged (1)
that on June 22, 1935, the respondent entered into a 1-year contract
with the A. F. of L. Affiliates, which then represented a majority of
its employees, recognizing said A. F. of L. Affiliates as exclusive
representatives for collective bargaining, and as part of said contract
notified its employees that attempted interference with said contract
would result in discharge, that employees not then members of the
A. F. of L. Affiliates would not be required to become members, but
that in the future only members of the A. F. of L. Affiliates would
be employed; (2) that on July 6, 1936, a contract, substantially
identical with the contract of June 22, 1935, was entered into between
the respondent and the A. F. of L. Affiliates, which then also repre-
sented a majority of its employees, the contract to be effective as of
June 24, 1936, and to run for a year; (3) that on March 20, 1937, the
A. F. of L. Affiliates requested the respondent to close its plant tempo-
rarily and that it accordingly did so; (4) that the plant remained
closed until April 5, 1937, when it was reopened pursuant to a notice
published by the respondent and set 'forth in its. answer; (5) that
after negotiations between the respondent and the A. F. of L. Affiliates
during the period April 5, 1937, to May 20, 1937, and after a majority
of the respondent's employees had designated the A. F. of L. Affiliates
as representative for collective bargaining and approved such con-
tract, the respondent and the A. F. of L. Affiliates on May 20, 1937,
entered into contract which included a closed-shop agreement.
Pursuant to notice of postponement a hearing on both the petition
and the complaint was held in Cleveland, Ohio, on June 10, 11, 15,
16, 17 and 18, 1937, before William P. Ringer, the Trial Examiner
duly designated by the Board. At the hearing the A. F. of L. Affilia-
ates and the Cleveland Federation of Labor were permitted to inter-
vene, both with respect to the hearing on the petition and with respect
to the hearing on the complaint. The Board, the respondent, the
United, the A. F. of L. Affiliates, and the Cleveland Federation of
Labor were represented by counsel. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded to all the parties.
At the end of the case concerning the unfair labor practices, the
respondent moved to dismiss the complaint, which motion was denied
by the Trial Examiner. At the same time the Trial Examiner granted
a motion by counsel for the Board to amend the complaint to conform
to the proof with respect to variations not involving surprise or ma-
terial changes. At the conclusion of the hearing the A. F. of L.
ELECTRIC VACUUM CLEANER COMPANY, NO. 595
Affiliates moved that the petition be dismissed, which motion was
denied. These rulings by the Trial Examiner are hereby affirmed.
During the course of the hearing, the Trial Examiner made several
other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
After the close of the hearing briefs were filed by the respective
counsel for the Board, the respondent, the A. F. of L. Affiliates and
the Cleveland Federation of Labor. On November 1, 1937, both cases
were transferred to and continued before the Board pursuant to Ar-
ticle III, Section 10 (c) (2), and Article II, Section 37, of said Rules
and Regulations. On July 7, 1938, the Board duly issued its Findings
of Fact, Conclusions of Law, Order, and Direction of Election.5 On
July 16, 1938, the respondent filed exceptions to said Findings of Fact,
Conclusions of Law, and Order. On August 4, 1938, the A. F. of
L. Affiliates filed objections to said Findings of Fact, Conclusions
of Law, Order, and Direction of Election, and moved that the same
be amended. The Board duly considered said exceptions, objections
and motions, and on August 23, 1938, overruled said exceptions and
objections, and denied said motions.
On March 16, 1939, the Board, acting on its own motion, pursuant
to Sections 9 (c) and 10 (d) of the Act, and Article III, Sections 8 and
10 (c) (2), and Article II, Sections 37 and 38, of said Rules and Regu-
lations, duly notified the A. F. of L. Affiliates, the Cleveland Federa-
tion of Labor, the respondent, and the United, that on April 6, 1939,
or as soon thereafter as convenient, the Board, unless sufficient cause
to the contrary should have appeared, would vacate and set aside its
Findings of Fact, Conclusions of Law, Order, and Direction of Elec-
tion, issued July 7, 1938, for the purpose of further proceedings before
the Board. All parties were granted, but none exercised, the right to
file objections and arguments, and to apply for oral argument. On
April 11, 1939, the Board duly ordered the Findings of Fact, Conclu-
sions of Law, Order. and Direction of Election vacated and set aside.
On June 21, 1939, pursuant to Article II, Section 38 (c), and Article
III, Sections 8 and 10 (c), of said Rules and Regulations, the Board
issued an order directing that Proposed Findings of Fact, Proposed
Conclusions of Law, a Proposed Order, and a Proposed Direction of
Election be issued, and that the parties have the right, within 20 days
from the receipt thereof, to file exceptions thereto, to request oral
argument before the Board, and to request permission to file a brief
with the Board. Copies of this Order, together with copies of the
Proposed Findings of Fact, Proposed Conclusions of Law, Proposed
3 8 N. L. R . B. 112.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, and Proposed Direction of Election, duly issued by the Board
on June 21, 1939, were duly served upon the parties. Thereafter the
respondent filed exceptions to the Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order; and the A. F. of L.
Affiliates filed exceptions to the Proposed Findings of Fact, Proposed
Conclusions of Law, Proposed Order, and Proposed Direction of Elec-
tion. The respondent and the A. F. of L. Affiliates requested oral
argument before the Board in support of their exceptions.
Pursuant to notice served upon all parties, a hearing was held before
the Board in Washington, D. C., on September 14, 1939, for the pur-
pose of oral argument. The respondent, the United and the A. F. of L.
Affiliates were represented at the hearing; all participated in the argu-
ment; and the Polishers Union, one of the A. F. of L. Affiliates, filed a
brief, which we have considered.
The Board has considered the exceptions to the Proposed Findings
of Fact, Proposed Conclusions of Law, Proposed Order, and Proposed
Direction of Election, and the brief in support of the exceptions, and
in so far as the exceptions are inconsistent with the Findings of Fact,
Conclusions of Law, Order, and Direction of Election set forth below,
finds no merit in them.
Upon the entire record in the consolidated cases, the Board makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Electric Vacuum Cleaner Company, Inc., a New York corporation,
manufactures, sells, and distributes electric vacuum cleaners. It has its
principal office and place of business at Cleveland, Ohio, and branches
in about 100 cities in the United States and Canada, and its trade-mark
is registered with the United States Patent Office for use in interstate
commerce. Respondent controls Premier Vacuum Cleaner Co., Ltd.,
of Toronto, and in turn one-third of its own stock is held by General
Electric Company.
About 75 per cent of the raw materials used by the respondent are
obtained outside of the State of Ohio, and about 90 per cent of its
finished products are shipped out of Ohio. In the year 1936 it pro-
duced over 200,000 units. In 1935 and 1936 respondent employed ap-
proximately 800 persons, excluding office workers and clerical and
supervisory employees. According to the pay rolls, the number so
employed had increased to approximately 900 by the first quarter of
1937, and by May 20, 1937, had further increased to approximately
1100.
ELECTRIC VACUUM GLEANER COMPANY, INC. 597
II. THE ORGANIZATIONS INVOLVED
United Electrical and Radio Workers of America, Local 720, herein
called the United, is a labor organization affiliated with the C. I. 0.,
admitting to its membership all production and maintenances employ-
ees of the respondent, excluding clerical and supervisory employees.4
Metal Polishers, Buffers, Platers and Helpers, International Union,
Local No. 3, herein called the Polishers Union, is a labor organization
affiliated with the A. F. of L., admitting to its membership all metal
polishers, buffers, and platers, and their helpers, employed by the
respondent.
International Association of Machinists,' District No. 54, herein
called the Machinists Union, is a labor organization affiliated with
the A. F. of L., admitting to its membership all machinists employed
by the respondent.
International Molders Union of North America, Local No. 430,
herein called the Molders Union, is a labor organization affiliated with
the A. F. of L., admitting to its membership all molders employed
by the respondent.
Pattern Makers Association of Cleveland and Vicinity, herein called
the Pattern Makers Association, is a labor organization affiliated with
the A. F. of L., admitting to its membership all pattern makers
employed by the respondent.
Federal Labor Union No. 18907, herein called the Federal Union,
is a labor organization affiliated with the A. F. of L., admitting to its
membership all production and maintenance employees of the re-
spondent, except clerical and supervisory employees and employees
who are eligible for membership in any of the above-mentioned unions
affiliated with the A. F. of L.
III. THE UNFAIR LABOR PRACTICES
A. Interference, coercion, and restraint
(1) The respondent's labor relations prior to March 1937
In 1934 the Machinists Union,5 succeeded in signing up and obtain-
ing partial payment of initiation fees by a considerable number of
the respondent's employees. Organizational efforts were not pressed
further. By March 1935 most of those who had enrolled had been
dropped for non-payment of dues, and few, if any, of the respond-
ent's employees were members of the Machinists Union.
Meanwhile, in the first part of 1934, most of the polishers in re-
spondent's employ were organized in the Polishers Union; and all of
4 See footnote 2, supra.
'Apparently none of the other A . F. of L . Affiliates r^^ticipated in this campaign.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the polishers had joined by March 1935, at which time a strike was
called by the Mechanics Educational Society, another labor organiza-
tion, hereinafter referred to as the M. E. S. A.
During 1934 a shop committee chosen by the polishers, demanded
and secured recognition of the Polishers Union by the respondent as
representative for collective bargaining for the polishers. The com-
mittee also adjusted wages and grievances concerning working condi-
tions, but no agreement was entered into by the respondent.
There was no testimony that any contract was made between the
respondent and the Polishers Union, providing for wages, hours, or
working conditions for polishers, and such testimony as there was to
the effect that a closed shop was agreed upon is unconvincing and, in
part, inconsistent with the undisputed facts.
R. B. Wilson, executive vice president of the company, testified that
prior to 1935 there was such a closed-shop contract "for years and
years," but he did not know "for how many years back" it had existed,
admitted it did not have "a beginning or ending time," and finally ad-
mitted there was no written agreement. Moreover, although Wilson
testified that during this period, the people who were employed in the
polishing department were employed through the Polishers Union,
William Behrse, chairman of the polishers committee in 1934, and
thereafter a member of the committee, testified without contradiction,
that only a few of the polishers were members of the Polishers Union
in 1932 and 1933; and W. E. Wilson, Leonard Trask, and Edward Wil-
son, polishers called as witnesses by the intervenors, testified that they
had worked for the respondent from 1925, 1929, and 1933, respectively,
but had not joined the union until 1934. '
Ray Muehlhoffer,. business agent of the Polishers Union, contra-
dicted Wilson by placing the earliest efforts at collective bargaining on
behalf of the polishers as occurring in 1934. Muehlhoffer testified that
in 1934, while he was an employee member of the polishers shop com-
mittee, the polishers "demanded collective bargaining rights" on the
ground that it then represented a majority of the polishers. He lim-
ited himself, however, to the statement that, "It was agreed at that time
that our organization would represent the Polishing Room." Muehl-
hoffer also testified that during negotiations in June 1935 between the
A. F. of L. Affiliates and the respondent, "the organizations were asking
for an entirely closed shop. I think the reason for asking that was
that we had already established that condition." But by "condition"
we understand only that Muehlhoffer referred only to the fact that at
the time all polishers were members of the Polishers Union, and did
not purport to state that the respondent had made any agreement to
that effect.
ELECTRIC VACUUM CLEANER COMPANY, INC'. 599
On the other hand Behrse, who was certainly in a position to know,
categorically denied that the respondent made any closed-shop agree-
ment with the Polishers Union.' He was corroborated by Arthur
Kruse, another polisher and Howard Lowrance, a welder working in
the polishing department, both employed by the respondent since 1929,
and both of whom testified they had never heard of any closed-shop
agreement.
We find that in March 1935 all polishers, though by no means all
persons employed in the polishing department, were members of the
Polishers Union; membership in other A. F. of L. affiliates was limited
to, at most, a few members of the Machinists Union ; no collective agree-
ments existed between the respondent and its employees or their repre-
sentatives, though the Polishers Union had, for something less than a
year, been recognized as the bargaining agent of the polishers.
Beginning about October 1934, M. E. S. A., had begun to organize
the respondent's employees, except those employed as polishers. In
March 1935 M. E. S. A., which meanwhile had enrolled some em-
ployees as members, called a strike to secure a wage increase.
The M. E. S. A. strike continued for about 10 weeks. Negotiations
with the respondent developed into a series of deadlocks. Finally, a
group of the strikers asked the A. F. of L. officials to negotiate as
their representatives. The A. F. of L. officials declined on the ground
that the Polishers Union was the only A. F. of L. organization in a
position to represent any of the employees, but offered to undertake
negotiations with the management if shown that a majority of the
employees were willing to become members of the appropriate craft
unions of the A. F. of L. and, in cases where there was no appropriate
craft union, an A. F. of L. Federal Union.
The group which had appealed for aid shortly succeeded in signing
up 176 strikers. The A. F. of L. officials declined to enter into nego-
tiations on behalf of such a minority but, upon assurances that a
majority could be obtained, held an organizational meeting in the
A. F. of L. Metal Trades Hall, which a large number of the em-
ployees attended. A proposed contract was submitted to the meeting
and after discussion it was voted to approve such an agreement and
to return to work if the respondent would sign. The A. F. of L.
officials then entered into negotiations with the respondent, stating
that they represented a majority of the employees. The respondent
insisted that, because of the claims made by M. E. S. A., the A. F.
9 Behrse not only testified that there was no "agreement at all" respecting a closed
shop but also denied that membership in the Polishers Union was a condition of employ-
ment, though new men were solicited by the committee. We conclude that the somewhat
confused testimony of W. E . Wilson, a polisher , and John Fox , assistant foreman of the
polishing department, as to a closed -shop contract related to the alleged agreement made
between the respondent and the A. F. of L. Affiliates in June 1935 ( see infra).
283029-41-vol. 18-::9
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of L. Affiliates should produce proof that .a. majority of the employees
had become members. This the A. F. of L. Affiliates were unable
to do at that time, but the negotiations proceeded upon their promise
that the proof would be forthcoming.
On June 22, 1935, immediately after membership cards for 608 of
the then approximately 799 employees were presented to the respond-
ent and checked, the respondent and the A. F. of L. Affiliates entered
into a written contract for 1 year, which provided for seniority, an
8-hour day and a 40-hour week. The plant reopened on the following
Monday and the employees returned to work.
In the course of the negotiations with the respondent, the A. F.
of L. officials demanded a completely closed-shop agreement. The
respondent took the position that it would not be fair to its employees,
many of whom had been working there for years, to require them
to join an organization, but made the counterproposal that all em-
ployees hired thereafter should be required after a work-probation
period of 2 weeks to become members of the appropriate A. F. of L.
union. The counterproposal was accepted but was not incorporated
into the written agreement.
On July 6, 1936, the written agreement was renewed with one
minor change in its provisions, to be effective as of June 24, 1936, and
to run until June 23, 1937. The A. F. of L. Affiliates, who were again
required to prove their majority, presented membership cards of 771
of the approximately 809 employees. Comparison of the July 1936
pay roll with the June 1935 pay roll shows that approximately 409
of those who had been employed June 22, 1935, (whom we will refer to
as the old employees) were still employed, and that the other approxi-
mately 100 persons had been hired subsequent to June 22, 1935.
In negotiating the 1936 contract, the A. F. of L. Affiliates, whose
membership now included all but approximately 38 of the respond-
ent's employees, renewed their demand for a closed-shop contract but
accepted instead an oral renewal of the previous agreement relating
to new employees.
It is contended by the respondent that the oral agreements were
not limited in their application to persons hired subsequently (whom
we will refer to as the new employees). It is claimed that under the
oral agreements, old employees who were members of the A. F. of L.
Affiliates at the time they were entered into were required to remain
members in good standing and that other old employees, though under
no obligation to join the A. F. of L. Affiliates, were required upon
becoming members to maintain such membership. It is further con-
tended that the employees were notified of the terms of the oral agree-
ments. We find none of these contentions sustained by the evidence.
ELECTRIC VACUUM CLEANER COMPANY, INC. 601
We are satisfied that the oral agreements related only to new employ-
ees,' and that the employees were never notified of their existence.
Muehlhoffer and Ralph Gordon, business agents of the Machinists
Union, the only representatives of the A. F. of L. Affiliates who testi-
fied to the 1935 negotiations, merely stated that a demand was made
for a completely closed-shop contract, that it was rejected, that a
proposal was then made that new employees be required to become
members and that an agreement was reached upon that basis. Paulus,
the respondent's superintendent, who stated that he was familiar with
the June 1935 contract, testified that there was no requirement as to
old employees, and, that the agreement simply was that "the new
people coming in were to join the union."
On June 12, 1936, approximately a week before the expiration of the
1935 contract, the respondent's president, Julius Tuteur, wrote to the
Director of the Board's Regional Office at Cleveland, with whom the
respondent had had some conversations. The letter, after reciting that
respondent was operating under the 1935 contract and that a copy
thereof was in the Director's possession, added, apparently thereby
disclosing for the first time to the Director the existence of any further
agreement, "We further wish to advise you, in confidence, that we said
at the time we signed the written agreement with these unions, orally,
that each new employee would be required to become a member of
the A. F. of L. unions within 2 weeks after date of employment." a
R. B. Wilson, who signed both the 1935 and 1936 contracts on behalf
of the respondent testified with respect to the oral agreement that
"from the time of our first entering into an agreement with the Ameri-
can Federation of Labor, it was understood with us that every em-
ployee, coming into our shop, would be required at the end of a 2-weeks'
period to either join the Federation of Labor or leave."
Muehlhoffer, the only union representative who testified as to the
negotiation of the 1936 contract,° stated that, "In 1936, we again entered
into an agreement that, as our relationship on a verbal basis had been
satisfactory, we were willing to continue with the verbal agreement,
or part of it, but it was insisted again that some of the employees in
that plant must come into our organization." R. B. Wilson, however,
testified that the oral agreement of 1935 was merely renewed in 1936
4 We so stated in our Proposed Findings of Fact ; the A. F. of L. Affiliates took no
exception thereto and at the oral argument before the Board did not question the correct-
ness of such a finding.
9 The letter of June 12, 1936, was offered in evidence to corroborate the testimony that
an oral agreement had been made. It, however , reinforces the conclusion we would have
drawn independently from the evidence; that the oral agreement was by its terms limited
to new employees ; that non-incorporation of the oral agreement in written contracts was
deliberate ; and that employees were not notified of its existence.
O John Toth , business representative for the Machinists Union testified that, when he
began his duties in the latter part of 1936, Gordon merely informed him that there was
an oral agreement that new employees were to become "members of the respective craft
organizations."
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that prior to 1937 the respondent did not know whether new em-
ployees had joined the A. F. of L. Affiliates.
That the oral agreements did not relate to old employees is further
shown by the experience of Harold A. Keehl, one of the old employees
who joined one of the A. F. of L. Affiliates in the early part of 1936.
Later in the year, when he had fallen behind in his dues for 6 months,
Keehl was called to the plant office where he was asked by R. W.
Waterbury, the respondent's accountant, why he,had not paid his dues.
Keehl answered that he was short of funds, and asked point-blank,
"Do I have to belong to the Union as long as it is not a closed shop ?"
Waterbury, who though the respondent's accountant, actively handled
the respondent's labor relations along with R. B. Wilson and George
R. Paulus, general superintendent, answered, "Well, I don't want to
discuss that. We have an agreement and the only thing I can tell
you, the best thing to do is to pay your dues." 10 Waterbury did not
deny the conversation. Had there been any agreement that old em-
ployees remain members in good standing in the A. F. of L. Affiliates,
it is reasonable to believe that Keehl would have been told of its
existence on this occasion.
The respondent in its brief submitted after the hearing, places con-
siderable reliance upon the testimony of R. B. Wilson that it was
announced on the reopening of the plant in 1935, and that employees
were thereafter notified by a notice posted on the bulletin board, that
they "would be considered as working against the interests of the
company and as such subject to discharge" if they "did anything to
disturb the peaceful and friendly relationship" between the respondent
and the A. F. of L. Affiliates with whom it had just contracted. Irre-
spective of what the respondent might then or thereafter have deemed
"to disturb the peaceable and friendly relationship," 11 the caveat did
not bring the old employees within the terms of the oral agreement.
It did not even give notice to new employees of the existence of any
agreement which required that they become members of the A. F. of L.
Affiliates.
To establish that employees were notified of the oral agreement,
11 general employees were called as witnesses by the intervenors.
Harry Denner, the only new employee among the 11, testified, how-
ever, that though he was hired about July 1, 1935, nothing was ever
said to him about any requirement that he join a union, and he did not
become a member of the A. F. of L. Affiliates until April 1937.
Matt Denmore who had been president of M. E. S. A. local, testified
he "knew" when he joined Machinists Union in August 15, 1935, that
"new" men "were supposed to be in the union." M..C. Parks, who had
been an active member of the M. E. S. A. shop committee, and who
10 Waterbury and the shop steward arranged for Keehl to pay his arrears in instalments.
n Cf. Section III A ( 2), infra.
ELECTRIC VACUUM CLEANER COMPANY, INC. 603
also joined the Machinists Union in August 1935, merely testified that
there was such a "general understanding in the shop." Leonard Trask,
who testified that he had participated in the 1935 negotiations, dis-
credited himself by testifying that it was a closed-shop agreement
whereby "all the employees in the plant ... were to be members" and
that it was so understood among the employees, and he also contra-
dicted other old employees by stating that. there were "no discussions"
of the agreement. The testimony of the other seven old employees
was substantially the same; none of them indicated a source of knowl-
edge other than general plant gossip and rumors; two of them, W. E.
Wilson, a polisher, and John Fox, an assistant foreman in the polish-
ing department, "heard" or "understood" that the oral agreement
required all employees to be members of the A. F. of L. Affiliates,
though W. E. Wilson later modified his testimony to give an equally
imaginative version of the agreement : that it was a closed-shop con-
tract as to polishers but required only new employees in other jobs to
become members of the A. F. of L. Affiliates.
Notice to employees of the terms of the oral agreement was sought
also to be shown by the testimony of R. B. Wilson, Paulus, and Gordon.
Wilson testified that each foreman did his own hiring and advised
new employees at the time of employment that they "would have to
join the American Federation of Labor within 2 weeks or would be
discharged." Paulus testified that in 1935 he instructed each foreman
"to tell every man when he employed him, that he was required to
join the Union within 3 weeks from the time he started" and that he
checked up on his foremen "at almost regular intervals, asking if they
had followed those instructions." Gordon testified that in 1935 it was
"the understanding that foremen would so advise new employees."
In 1937 Gordon again took charge of the affairs of the Machinists
Union at the respondent's plant. According to him, he did so in order
to bring to the respondent's attention the failure of recently hired
employees to become members of the Machinists Union ; secured per-
mission for one representative of the Machinists Union to talk to
the men in the plant; and had Toth, another business representative of
the Machinists Union, go through the plant with the shop committee
for that purpose. Gordon testified that on this occasion the new men
"doubted the custom" and "were called into the respondent's office.
with all the employees so there could be a verification of the established
precedent," 12 and that, when the new employees nevertheless denied
knowledge of the oral agreement, they were contradicted by the
foremen.
12 According to Gordon 's testimony " the established precedent " to be thus verified was
"the understanding that all employees had to join the Union." This, of course, Is at
variance with the contention that at these conferences in the respondent ' s office only new
employees were asked to become members of the A. F. of L. Affiliates . See Section III
A (2), infra.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are satisfied, from the evidence introduced by the respondent
and intervenors themselves, that prior to 1937 new employees were
not notified of the oral agreement. The testimony that the foremen
notified the new men of the agreement, or that they were instructed to
do so cannot be reconciled' with the fact that, as late as June 12, 1936,
the respondent expressly stated in a letter that it wished the existence
of the agreement to be kept secret. We are unable to accept Gordon's
explanation of his version of why the new employees were called to
the office or what then transpired. He testified that "the agreement
was explained to them and invariably the fellows would say : `Well,
we are sorry we didn't know anything about it"'-yet when he was
asked whether he was present, Gordon answered, "I believe I was,
yes." We also are unable to believe his statement that although the
foremen had advised new employees, when they were hired, that the
respondent had an agreement with the A. F. of L. Affiliates which
required them to become members within 2 weeks, that although such
notice was repeated by the business representative of the Machinists
Union in the presence of a shop committee, workers remained so
incredulous that it was necessary that there be a further verification of
the established custom," by confrontation by other employees and by
foremen.
Finally, if the new employees had been notified of the oral agree-
ment, it is not unreasonable to expect that some of them would have
been called as witnesses 13 or that the foremen alleged to have notified
them would have been called. Neither were called, although five new
employees 14 called as witnesses by the Board had testified that they
had not been given notice of the agreement.
(2) Interference, coercion, and restraint in March, April, and May 1937
In March 1937 employees working in the machine shop were called
into the respondent's office where they were spoken to by Julius Tuteur,
R. B. Wilson, Paulus, Waterbury, and the officials of the A. F. of L.
We have referred to Gordon's testimony that new and old employees
were called into the office so that the new employees who denied knowl-
edge of the oral agreement might be confronted by their foremen,
and so that the agreement might be "explained" to all employees.
Toth, who according to Gordon rounded up the employees, did not
mention the alleged confrontations; nor for that matter did anyone
13 The pay rolls in evidence show at as late as May 20, 1937 , of the approximately 1100
persons then employed by the respondent , approximately 519 were new employees, and
that of the 519, approximately 58 had been hired during the term of 1935 contract, and
approximately another 186 had been hired before the events of March 1937 which resulted
in the shutting down of the plant. R. B. Wilson testified that the number employed May
20, 1937, in non-supervisory and non-clerical jobs was approximately 1032.
'4 Two of the five, James Mitchell and Rudolph Rummel, were still employed by the
respondent.
ELECTRIC VACUUM CLEANER COMPANY, INC. 605
else . Toth testified that, on these occasions, Paulus merely told the
employees that the company had an agreement whereby the new em-
ployees were required to join the Machinists Union but explained that
old employees need not. Moreover Toth admitted that he did not
know whether the men to whom Paulus spoke were new or old em-
ployees, and that on one occasion, when seven men were called in
nothing was stated at the conference to indicate that there was a
difference between old and new employees.
Waterbury testified that old employees were summoned to the office
"to be sure they understood exactly our contract." Like Toth, he
ventured no explanation as to why this was thought necessary or de-
sirable, was uncertain whether any new employees were called in,
and professed to be unable to remember whether any of the employees
signed union cards in the office.
Paulus testified that the groups called in were from the machine
shop, and that they "were old men who had been there a long time,
men I felt I knew very well." He stated that they were called in
because the officials of the Machinists Union had asked for his "assist-
ance" in signing up new employees. According to Paulus, he, Water-
bury and Toth explained the contract to the old employees and asked
them to aid in getting the new employees to join the Machinists Union.
Paulus did not testify that any new employees were called to the office,
admitted that on one visit to the office five of the employees signed
cards, and also admitted that. Edward Ramsey, an old employee, was
discharged when he refused to sign. On that occasion, Paulus testi-
fied, there were present with him not only Toth and Gordon, business
agents of the Machinists Union, but also Muehlhoffer, business agent
of the Polishers Union, and Lenahan, Secretary of the Cleveland
Federation of Labor, and that it was Lenahan who asked that Ramsey
be discharged.
R. B. Wilson, who also admitted that Ramsey was discharged be-
cause of his refusal to join the Machinists Union,' recalled that Mc-
Kinnon, general organizer for the A. F. of L., was also present at the
time. Wilson did not purport to explain why the men were called to
the office, except to say that he warned them that "any employee of ours
who did anything to disturb the friendly relationship existing be-
tween our company and the American Federation of Labor would be
considered as operating against the best interests and subject to dis-
missal." What this warning was intended to mean to employees
and what it undoubtedly conveyed to them is to be gathered from a
consideration of what was happening in the machine shop meanwhile.
"The circumstances with respect to Ramsey 's discharge are more fully considered
below.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson admitted that about this time 16 Muehlhoffer, business agent
of the Polishers Union, and Newman and Rhinehart, members of the
polishers committee, advised him "there was some agitation in the
machine shop," that he told them that they were "unduly alarmed"
and that "we would proceed to investigate the matter." Calling the
employees to the office was obviously Wilson's idea of an investigation.
And the import of the conferences that followed is evident when it is
noted that "the agitation in the machine shop" was by then an organ-
ized movement among the employees to sign up members for United.
Although allegedly about a hundred new employees had been hired in
the machine shop since July 1936 and not joined the A. F. of L. Af-
filiates, that obviously was not the cause of the occurrences of March
1937. Indeed, Gordon's testimony that the Machinists Union sought
out the management at this time to obtain permission to solicit new
members at their work was transparently untrue in view of the fact
that the A. F. of L. Affiliates had had that privilege since 1935. What
was at issue was the possible defection of all employees to. United.
Otherwise, for example, there is no way to account for the admitted
presence of Muehlhoffer, business agent of the Polishers Union, Lena-
han, Secretary of the Cleveland Federation of Labor, and McKinnon,
general organizer of the A. F. of L., in the office when employees from
the machine shop, were called in, and Lenahan's admitted role on
those occasions.
This fear of United first manifested itself in the treatment of
Edward Rericha, several days before the first group of employees
were called to the office. Rericha, a member of the Polishers Union,
had been employed by the respondent as a polisher for 11 years.
On several occasions prior to March 11, he discussed the C. I. O. with
other men in the plant and suggested that if they "would all belong
together" (obviously referring to their belonging to one -union rather
than the several A. F. of L. organizations), "we would get better
results." When Rericha came to work on March 11, he found his time
card withdrawn and when he asked the reason was referred to Rhine-
hart, of the polishers committee, who sent him to Muehlhoffer. When
he went to the union's office he was accused of talking against the
union and of being a member of the C. I. O. for the past 2 months.
It appears that he was formally tried for delinquency in dues but,
because of the protests of his fellow polishers, those charges, too, were
dropped and he was told to return to work March 22. 17
About March 15 Theodore Vitosky, employed in the machine shop,
objected to Toth's efforts to sign up a new employee who had not
is Wilson fixed the occasion as "On the morning of Thursday , March 18th, I believe was
the date . . See infra.
17 Rericha was admittedly late in his dues but had arranged with the secretary of the
Union to make payment on pay day , March 12.
ELE'C'TRIC VACUUM CLEANEiR COMPANY, INC. 607
been promised a steady job, remarking, "It looks like a racket." Toth
answered he "didn't have to take that" and obtained Vitosky's name
from the timekeeper. The next day Vitosky and four other employees
were sent to the office by Sam Wagner, general foreman of the machine
shop. Of the five employees, Vitosky and at least one other, Elmer
Lejinsky, were old employees.," In the office they found Paulus,
Waterbury, Toth and some other persons whom Vitosky did not recog-
nize. Before .they left the office, Vitosky and his companions had all
signed union cards. As we have pointed out the respondent offered
no explanation for this. We accept Vitosky's testimony that they
signed because Paulus asked them to and refused, to allow them time
to consider the matter.
On March 16 Paulus was seen in the machine shop, stopping at
machine after machine, and signalling the representatives of the
Machinists Union to come over. When Edward Koutnik, employed
in that department, came to work at 11 o'clock that morning, several
hours after the shift began, he found the shop in confusion and was
approached by a number of employees who told him that the
"A. F. of L. organizers are down here and they are trying to make
everybody sign up." Later in the day, Koutnik and Howard Low-
rance, a welder in the polishing department who was a member of
the United, agreed that Lowrance would arrange for a meeting with
a representative of United and Koutnik would pass around word
of the meeting. The next afternoon, after work, Scott, a United
organizer met with about 60 employees. They signed cards and re-
ceived others which they took into the plant the next morning and
began to sign up other employees.
On the morning of March 17, Clyde H. Boyes, a subforeman, and
himself an old employee, was sent to the office, together with six old
employees in the automatic department of the machine shop.19 Boyes
testified that McKinnon, (general organizer for the A. F.. of L.) and
Toth, in the presence of Paulus, Julius Tuteur and four or five others
whom he did not recognize tried to get them to sign cards but that
after a dispute over initiation fees they returned to work without
signing. About 2 o'clock that afternoon Boyes and some of the auto-
matic men were recalled to the office. This time, Paulus said he
thought they were intelligent men who would want to hold their jobs
is Vitosky could not identify by name two of the men who went with him to the office.
One, whom he called "Peter Jacobs ," does not appear under that designation on the pay
roll . The pay rolls , however , do show an "Elmer Ledinsky" (and no one else with a
similar name) who must be "Lejinsky," and show him as still in the machine shop as late
as May 20, 1937.
19 Boyes named as his companions, Patrick Barrett , Ed Cauley , Jim Crenie, Ross Green,
Andy Hegedus, and Louis Young. The pay rolls show all of them were old employees in
the machine shop. "Cranie" appears as "Cromie ," Ross Green sometimes appears as "Ross.
Greene" or "C. R. Greene" (though with the same chock number) on the pay rolls. All
were still employed as late as May 20, 1937.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and could use their influence on the other employees. Boyes testified
that Waterbury then told them "they wanted an answer soon" because
the Polishers Union had threatened to strike if the employees in the
machine shop did not sign up, and added that this would result in
their being "out on the street." Waterbury denied making such a
statement but neither he nor anyone else denied that this was the
second time in one day that these employees had been called to the
office. Nor was there any denial of Boyes' testimony that he and
some of the same men were called in again on March 18. No one can
believe that they were summoned the second and third time for the
purpose of being informed as to the existence of the oral agreement.
We find Boyes' testimony as to this and the previous visits convincing.
On the third occasion Paulus, Wilson, Waterbury, Lenahan, McKinnon
and several others were present. Lenahan asked the automatic men
to sign a card and when they walked out again without complying
Lenahan told Wilson "they should be discharged."
Waterbury's warning on the afternoon of March 17 of a strike
by the Polishers Union followed only a few hours after Muehlhoffer
had proposed a strike to the polishers committee because the men in
the machine shop were "joining C. I. 0." Behrse, one of the com-
mittee, testified that when no decision was reached Muehlhoffer took
Newman and Rhinehart, the other two members of the committee,
to the office; that on their return Newman, who was chairman of the
committee, reported that they had proposed a strike to Wilson, but
that the latter had said "it was not necessary, that it was nothing
serious about it, but he was going to make them join the American
Federation of Labor Union, and if they don't he would fire one or
two so the rest of them will join." Though hearsay, this testimony
as to the threat being made to Wilson is satisfactorily corroborated
by Boyes' testimony as to Waterbury's warning. Wilson, we have
noted, admitted the visit by Muehlhoffer and the committee. He
denied, however, that a strike was threatened or that he had made the
statement imputed to him. His denial is not persuasive. He ad-
mitted warning those called to the office that if they "did anything
to disturb the friendly relationship" with the A. F. of L. Affiliates
they "would be subject to dismissal," he gave no explanation of why,
after the visit by Muehlhoffer and the committee, Boyes and the
other automatic men were twice recalled to the office, and he admitted
that on March 18 Ramsey was discharged for refusing to sign a card
in the office.
Edward Ramsey, together with "Vargo" or "'Lefty' Fargo," Kiss
and "a fellow from the Automatic room" (who seems to have been
Louis Young) were sent to the office by Sam Wagner, the general
foreman, about 2 o'clock in the afternoon on March 18. Ramsey,
ELECTRIC VACUUM CLEANER COMPANY, INC. 609
Vargo and Kiss were old employees (as was Young). 20 In the office
Lenahan acted as spokesman for a group which included Waterbury,
Toth, Paulus, Gordon and Muehlhoffer. Ramsey testified that Lena-
han said the A. F. of L. "had a contract with the firm and the boys
would have to sign up," 21 that all but Ramsey signed and returned to
work; that Ramsey persisted in refusing to sign; that Lenahan then
told him he was fired, whereupon, Ramsey went back to the machine
shop. No one denied Ramsey's testimony as to what happened to him
personally; on the contrary, both Wilson and Paulus admitted that
this was what had happened. Nor was there any direct denial made
of Ramsey's testimony so far as it related to Vargo, Kiss, and the
"fellow from the automatic room." We see no reason to doubt that
portion of Ramsey's testimony and find the facts to be as stated by
him. We are further impressed by the failure of the respondent or
intervenor to call as a witness, as to what happened in the office, a
single fellow employee named by Vitosky, Boyes or Ramsey, or for
that matter, any other employee, old or new.
As we have pointed out Ramsey was told in the respondent's office
by Lenahan in the presence of Paulus, the respondent's superintend-
ent, that he was "fired." Lenahan also ordered him to "step out into
the other room." This Ramsey did, waited a few minutes in the next
room watching the other men sign up, and then returned to his de-
partment . Under the circumstances, the silence of Paulus, who was
in charge of hiring and discharge, was reasonably regarded by Ram-
sey as indicating that Lenahan acted with the acquiescence and ap-
proval of the respondent. Nor may the incident be brushed aside,
as suggested by the A. F. of L. Affiliates at the oral argument before
the Board, on the ground that while Lenahan "had no right" to tell
Ramsey that he was discharged, Lenahan "was pulling a legitimate
bluff." The record leaves no doubt that Lenahan's purported exercise
of authority on behalf of the respondent was coercive because it was
understood by Ramsey to be, and the respondent knew it would be
understood to be, the action of the respondent. Moreover, it is un-
necessary to determine whether under principles of agency Ramsey's
discharge was effected instanter upon Lenahan's declaration. The
contention of the respondent that "it fairly appears that no one was
discharged," is not, in any event, supported by the record. Paulus ad-
mitted that he-sent for Wagner, Ramsey's foreman and told him that
Ramsey "was fired." Further, Wilson flatly testified that Ramsey
20 We have already referred to Louis Young. See footnote 16, supra. The pay rolls
show only one "Vargo" (and no "Fargo" in the machine shop ). The "Vargo," "Frank
Vargo." was an old employee . The pay rolls also show only one "Kiss ," "Gus Kiss," and
show he was an old employee . Both Vargo and Kiss were still employed as late as May
20. 1937.
21 Cf. footnote 12, supra.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged by his foreman as the result of the request of the
A. F. of L.
The further contention is made that the respondent, shortly after
he left the office, realized that Ramsey was an old employee and
should not, therefore, have'been discharged; that Paulus at once sent
for Ramsey to notify him that he had not been discharged; but that
Ramsey "refused to return to the office to be given this word." Mean-
while, the men in the machine shop on hearing of Ramsey's discharge
sat down, Ramsey joining in the sit-down. According to the re-
spondent Ramsey's refusal to return to the office is to be explained on
the ground he was "excited and (not) interested enough to return
to the office," and that the men in the machine shop persisted in the
sit-down after Paulus had told them to go home and return in the
morning, simply because they "had made up their minds to sit and
this they proceeded to do arbitrarily, without justification and in
violation of their agreement." The A. F. of L. Affiliates advance
another explanation for Ramsey's refusal to return to the office, it
being their contention that the strike had no relation to Ramsey's
discharge, but was a deliberate step in the organizational campaign
of the United. At the oral argument, the respondent and the A. F.
of L. Affiliates, for the first time, advanced the further contention
that the strikers committed acts of violence and wantonly destroyed
the respondent's property. The respondent and the A. F. of L. Affili-
ates rely upon the facts thus asserted to explain and justify the con-
duct of the respondent following the termination of the sit-down on
March 19. Further, the claim that the discharge of Ramsey was the
result of an error, and was sought to be corrected immediately, is
urged to support the contention that the respondent had engaged
in no unfair labor practices prior to the strike. We shall review the
course of events immediately preceding the strike, and then consider
the-further contentions with respect to the cause of the strike and its
conduct.
The claim with respect to Ramsey's discharge is stated as follows
in the brief submitted by the respondent to the Trial Examiner after
the hearing : 22
There is no testimony as to what occurred immediately after
Ramsey left the meeting with Lenahan. There must have been
some discussion, for Paulus then realized that Ramsey, being an
old employee, should not be discharged for failure to join the
union, and so Paulus testified (p. 695), and Ramsey testified,
Paulus sent for Ramsey to notify him that he. had not been dis-
22 The position of the A . F. of L. Affiliates was stated as follows at the oral argument
before the Board : "It turned out that Ramsey was an old employee-preceding when the
agreement of 1935 was made. That was discovered almost instantly, and a messenger
was then sent to tell him that don ' t apply to you ; a.nd he says 'I won't come.' "
ELECTRIC VACUUM CLEANER COMPANY, INC. 611
charged, but Ramsey refused to return to the office to be given
this word and in the meantime the sit-down had started.
The claim that Paulus or Ramsey so testified completely misstates
the record. Paulus' testimony as to the events following Ramsey's
departure from the office is as follows :
.
Q. Was there anything said at that meeting about Ramsey
being discharged?
A. Yes, sir.
Q. Who said that and what happened?
A. Mr. Lenahan, requested that we discharge that man.
Q. What was done about Lenahan's request?
A. I sent for the foreman of the Tool Room or the foreman
of the Machine Shop and told him that he should discharge that
man.
Q. Now, about what time was that?
A. I would say two o'clock in the afternoon.
Q. Now, after, as you say, Ramsey had been notified of his
discharge, what if anything did you do?
A. I notified the foreman of the Machine Shop, and that is
all I did do at the time.
Q. After that, what wa's done?
A. After that, the foreman of the Machine Shop came in and
told me that the men were sitting down in the Machine Shop.
Q. Did you send for Ramsey at that time?
A. We sent for Ramsey then and called him back again and
he refused to come in.
Q. What was the purpose in calling Ramsey back?
A. We wanted to tell Mr. Ramsey that we did not want to
discharge him, we reconsidered it.
Q. And he refused to return?
A. Sir?
Q. He refused to return?
A. Yes, sir.
Q. Did you go down to the shop after you learned of the
sit-down?
A. Yes; I went into the factory. It was about three o'clock
or three-thirty that I went into the factory.
Q. Did you say anything to the men at that time?
A. They were standing around in different groups, and I pat-
ted them on the back and told the men that I thought they should
go home and come back to work in the,morning.
Q. What did you say at that time about anybody having been
discharged?
A. I didn't say anything.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you make the statement to any of the men that
Cawley 23 had not been discharged?
A. No; I mentioned no names about anybody being discharged.
I mentioned no names.
Q. There has been some testimony here that at that time you
made the statement in effect: "Forget about any discharge and go
home and come back to work in the morning"; do you remember
making that statement? 24
A. I didn't make that statement. The only thing said was that
they should go home and come back in the morning. I didn't
say anything about any discharge.25
Ramsey testified that he was given no reason for the request to return
to the office and that no one thereafter told him that he was not dis-
charged, and we find that the facts are as stated by him.
It is to be noted that Paulus did not testify that he decided to recall
Ramsey to the office because it had been discovered that Ramsey was
an old employee and, therefore, not properly discharged. Moreover,
Paulus did not testify that he instructed Wagner to advise Ramsey
that the reason for his recall to the office was to withdraw the dis-
charge. Indeed, it is apparent that Paulus' testimony that it had been
decided to withdraw the discharge is not to be credited in view of his
admission that, during his subsequent visit to the machine shop, he
made no statement either to Ramsey or the other strikers that the dis-
charge had been reconsidered.
The record clearly discloses that Ramsey's discharge was not the
result of any mistake. Not only is there no evidence that it was, but
it affirmatively appears that it was not. Ramsey was not an employee
on the border-line between old and new employees. He had been in
the respondent's employ for over 7 years. It is inconceivable that
Paulus and Waterbury thought he was a new employee. Moreover, it
clearly appears from Paulus' testimony that he was under. no mis-
apprehension. He admitted that the men called in from the machine
shop "were old men who had been there a long time, men I knew very
well." Furthermore, Vitosky, who on March 16 had been compelled
to sign a card in the presence of Paulus and Waterbury, had been in
the respondent's employ for almost 9 years; and Boyes, a subforeman
who three times on March 17 and 18 and been solicited in the presence
of Paulus and Waterbury to sign a card, and on the last occasion,
shortly before Ramsey's discharge, had been threatened by Lenahan
with discharge, had been in the respondent's employ for 12 years. It
23 Obviously a typographical error ; the reference is plainly to Ramsey.
m The reference is to the testimony of Koutnik, who was clearly in error.
u The testimony quoted appears at pp. 595-597 of the record . Subsequently Paulus
admitted that after Ramsey had left the office, he, Paulus notified Wagner that Ramsey
"was fired."
ELECTRIC VACUUM CLEANER COMPANY, INC. 613
is patent that Ramsey was not recalled because of any discovery that
he was an old employee but because his discharge had been immediately
followed by a strike.
The record is clear, and we find, that beginning on March 16, the
respondent set out to forestall the organization of its employees by the
United, and to compel them to sign up in the A. F. of L. Affiliates.
As_ we have pointed out above, prior to March 1936 employees were
not advised of the existence of the oral agreement. The record fails
to show the name of a single new employee among the persons called
into the office on March 16, 17, and 18, and the circumstances set forth
above lead us to conclude that the new employees were not called in,
and quite understandably so. The concern of the respondent was not
over the failure of some new employees to join the A. F. of L. Affiliates,
but with the possibility of disaffection by the approximately 630 old
employees who constituted more than two-thirds of the 932 persons
on the pay roll, and none of whom were covered by the oral agreement
and whose affiliation with the United would not only constitute that
organization the representative of a majority of the employees but
obviously would have swung, or at least been most likely to turn, the
new employees to the United. Faced with this situation the respond-
ent summoned the old employees to the office and there sought to, and
in many instances was able to, coerce them into joining the A. F. of L.
Affiliates. Its action was plainly an interference with the right guar-
anteed its employees by Section 7 of the Act.
Only by virtue of the proviso contained in Section 8 (3) of the
Act 26 was the respondent entitled prior to March 1937, to require
new employees to join the A. F. of L. Affiliates. That right it then
had because of the provisions of the agreement made in 1935, and
renewed in 1936 when the A. F. of L. Affiliates represented a ma-
jority of the employees and had not been assisted by any unfair
labor practice by respondent. However, the rights of old employees
guaranteed by Section 7 of the Act were unaffected by the agree-
ment. The agreement placed no limitation upon their right to be-
come members of the United and to encourage other old employees to
become members, or to,decline to join, or to drop their membership
in the A. F. of L. Affiliates, or to persuade other old employees to do
so. Nor did the agreement inhibit old employees from urging such
action upon new employees. Of course new employees who forsook
or refused to join the A. F. of L. Affiliates after being advised of
the oral agreement could be discharged pursuant thereto. But it
26 The proviso clause of Section 8 ( 3) reads : "Provided , That nothing in this Act .. .
shall preclude an employer from making an agreement with a labor organization (not
established , maintained , or assisted by any action defined in this Act as an unfair labor
practice ) to require as a condition of employment membership therein, if such labor
organization is the representative of the employees as provided in Section 9 (a), in the
appropriate collective bargaining unit covered by such agreement when made."
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not follow that the respondent was entitled to interfere with the
efforts of old employees to induce new employees to join the United
or to change their affiliation from the A. F. of L. Affiliates. The
agreement did not purport to give the respondent any such right.27
Moreover, the proviso does not permit imposition of the penalty in
a case where no notice has been given of the existence of the agree-
ment. The proviso in permitting the employer "to require member-
ship" in a labor organization manifestly implies that the employee
shall be advised that the employer's action is taken pursuant to an
agreement. Otherwise employees would have no means of knowing
whether they were being illegally discriminated against, or whether
the employer was simply enforcing a valid obligation. The proviso
was hardly intended to permit equivocal employer conduct, so likely
to precipitate industrial conflict over what employees, in view of the
employer's silence, quite reasonably would conclude was an inter-
ference with rights guaranteed to them by Section 7 of the Act.
The respondent's conduct, manifestly illegal on March 16, 1937, did
not become permissible action on March 17, because the A. F. of L.
Affiliates threatened to strike unless the employees in the machine
shop joined those organizations; the threat afforded no justification
for the continuance of the flagrant interference with the rights of
employees.28
We have referred above to the contention of the respondent that
the employees in the machine shop went on strike "arbitrarily" and
"without justification" and to the contention of the A. F. of L.
Affiliates that the strike was part of the plan of the United to
organize the plant. The record, however, shows that the strike was
the direct result of the respondent's illegal action, that it was decided
upon only after the threat by Lenahan on March 18 to Boyes and the
other automatic men that they "should be discharged" for refusing to
join the A. F. of L. Affiliates, and that it was finally precipitated by
the discharge of Ramsey. The record further establishes that the
strike was a defensive measure and not an organizational tactic; that
it was terminated at once upon the respondent agreeing that the
illegal conduct of the past few days would cease. Finally, the record
leaves no doubt that such violence and destruction of property as
occurred, and there was little of either, is to be attributed to the
A. F. of L. Affiliates.
As we have pointed out above, a group of approximately 60 em-
ployees met with Scott, the United organizer, on the afternoon of
March 17, signed cards, and received others to be used in soliciting
27 Whether an agreement purporting to give the employer such a right would be invalid
under the Act, we find it unnecessary to decide in the instant case.
28 Cf. Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82.
4 N. L. R. B. 498, enforced in National Labor Relations Board v. Star Publishing Company.
97 F. (2d ) 465 (C. C. A. 9th, 1938).
ELECTRIC VACUUM CLEANER COMPANY, SNC'. 615
members. There was no discussion of a strike, and the strike the
next day was a complete surprise to Scott. The calling of a strike
was first discussed by the men in the machine shop after Boyes and
the other automatic men reported the threat made by Lenahan in the
presence of Paulus and Waterbury. When Ramsey and his group
were called to the office the men in the machine shop agreed that they
would strike if any discharges followed. The record is unclear only
as to whether the strike followed immediately after Ramsey returned
from the office or whether confirmation of the discharge through
Wagner intervened. That the strike was caused by Ramsey's dis-
charge is plain, and the contention to the contrary is in the teeth of
Wilson's admission that the respondent knew it to be the cause.
Wilson testified that "The reason was that an employee [later identi-
fied by him as Ramsey] had been discharged at quitting time, a few
minutes before, and as a demonstration about that the employees you
have referred to [i. e. the employees in the machine shop] stayed
overnight." 29
The strike by the employees in the machine shop was not conducted
as an organizational strike. No attempt was made to prevent the
operation of the other departments. While employees in some of the
other departments on hearing of the strike quit work, the shift ended
shortly after the strike began, and employees in the other depart-
ments left the plant; the men on the next shift worked except in the
machine shop. During the evening some of the strikers asked em-
ployees in the plating department to join in the strike. This led to
a heated argument with Muehlhof£er, business agent of the Polishers
Union, which included employees in the plating department, and
Rhinehart, a member of the polishers committee. When the matter
came to the attention of Koutnik, one of the leaders of the strike,
Koutnik took the position that since the employees in the plating de-
partment were represented by the Polishers Union, and had been
ordered to work by their representatives, the strikers should not
seek to involve them in the strike; and the solicitation ceased at
once. The strike remained limited to the machine shop, the employ-
ees in which were the persons who had been subjected to the respond-
ent's illegal action. Indeed, there is no evidence that any employee
in the machine shop wished to work but was prevented from doing so
by the strike, although the pay rolls in evidence show that many of
them were still employed by the respondent at the time of the hear-
ing and therefore available as witnesses.
The strike by the employees in the machine shop was clearly a
defensive step, and the claim of the respondent that the men struck
48 Later in his examination Wilson was asked whether " as a result" of Ramsey's dis-
charge "the employees protested by a sit-down." His answer was "Yes."
283029-41-vol. 18 40
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"arbitrarily, without justification and in violation of their agreement"
is manifestly without merit. The action of the respondent which
caused the strike was illegal, and was, moreover, action approved, and
there can be little doubt, instigated by the A. F. of L. Affiliates. The
claim now made that the employees in the machine shop had avail-
able and should have resorted to the procedure provided in the con-
tract for settlement of grievances by negotiations between the
respondent and the A. F. of L. Affiliates flouts common sense.30
Whether the strike constituted a trespass upon the respondent's
property it is unnecessary to decide, although we note that the
respondent at no time ordered the men to leave the plant. None of
the strikers were denied reemployment by the respondent because of
their participation in the strike.31 Nor, as we shall point out, are
the respondent's actions subsequent to the termination of the strike
to be attributed thereto. Apparently in an attempt to establish such
a causal connection between the strike and the respondent's actions
after its termination, the respondent and the A. F. of L. Affiliates
urged at the oral argument before the Board that the strike was
violently conducted and involved the wanton destruction of property
by the United. The contention has, as we have stated, no foundation
in the record. Neither the respondent nor the A. F. of L..Affiliates
called any witnesses to establish such acts on the part of the strikers,
nor sought to elicit such evidence by cross-examination of the wit-
nesses called by the Board. From the uncontradicted testimony it
appears that the only violence occurred on the morning of March 19;
that at that time McKinnon, general organizer of the A. F. of L., came
into the machine shop and ordered the strikers to leave; that McKin-
non immediately attempted to bring in 30 or 40 men, who obviously
were not employees in the shop since the employees were already
there on strike; that one of the 30 or 40 men sought smashed through
the glass door with a blackjack, hardly an instrument carried by an
employee; that the strikers prevented these men from entering the
room ; and that then the strikers were showered with bricks and other
objects "from outside the factory." There is no evidence that McKin-
non acted under any authority from the respondent, or that he made
any such representation to the strikers. Such violence and property
damage as occurred was, therefore, plainly attributable to the A. F.
of L. Affiliates. Indeed there is no evidence that the respondent,
which had never ordered the men from the plant, deemed it necessary
to invoke the protection of the police. On the contrary the appeal
to the police was made on behalf of the strikers.
30 Cf. In the Matter of Kelley 's Creek Colliery Co. and International Union, Progressive
Mine Workers of America, 17 N. L. R. B. 506.
91 Indeed Ramsey , who Joined in the strike and remained in the plant until it was ter.
minated, was among those reemployed . See footnote 42, infra.
ELECTRIC VACUUM CLEANDR COMPANY, INC. 617
On the morning of March 19, Scott, who had learned of the strike,
went to the East Cleveland police station to invoke the assistance of
Chief of Police Corlett. The latter had acted as an intermediary in
1935, and the first contract between the respondent and the A. F. of L.
Affiliates had been signed in his office. Scott appealed to Corlett to
intervene in the situation and attempt to make "some kind of arrange-
ment to get these man back who were discharged 32 and a peaceful
settlement." Corlett agreed to undertake a settlement, and later in
the day advised Scott that he had communicated with the respondent,
and suggested that Scott prepare an agreement which he would pre-
sent to the respondent. An agreement was prepared, but Corlett
returned and informed Scott that his proposal was not acceptable to
the respondent. Scott then prepared the following proposal:
I hereby authorize Chief of Police Corlett to act with the Elec-
tric Vacuum Company. We agree to go back to work with the
reinstating of the two men discharged yesterday,33 with the
understanding that the employees shall have the right to join
any Union of their own free will.
Under these terms we agree to go back to work peacefully.
WALTER E. SCOTT,
District Organizer.
Corlett returned to the plant with the revised proposal, telephoned
Scott who had remained at the police station, and informed him that
both Wilson and Lenahan had agreed thereto, but that the men in
the machine shop insisted upon proof that Scott had authorized the
settlement. At Corlett's suggestion, Scott came to the plant, and in
the presence of Corlett and Paulus addressed the strikers, and ex-
plained that under the settlement they would return to work on
Monday, which was the next workday. Scott made his statement
about 2 o'clock in the afternoon, and the strikers immediately left
the plant. Although the respondent urges that there is no "compe-
tent or substantial evidence to support a finding" that the respond-
ent was a party to the settlement of the strike, or that it was adjusted
with. the understanding that "the employees shall have the right to
join any Union of their own free will," Wilson testified as follows:
Chief Corlett came to us from Mr. Scott and stated that if we
would agree to take back two employees who had been dis-
charged-one only had been discharged, but there were two men-
tioned in this particular transaction, who the second one was I
don't know-if those people would be taken back without dis-
32 Scott had apparently been erroneously informed that two employees were discharged.
This accounts for his reference to "these men . . . that were discharged." Not even the
respondent was clear as to how many had been discharged.
sa See footnote 32, supra.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crimination, the plant would open up, and we said that we have
no objection, to refer the matter to the American Federation of
Labor, who stated that they had no objection, and on that agree-
ment the plant was evacuated.
It is apparent from Wilson's testimony that the respondent was a
party to the settlement agreement, as were the A. F. of L. Affiliates.
There is no suggestion in Wilson's testimony that the settlement was
upon any other basis than that proposed by Scott, and reported to
him by Corlett to have been concurred in by Wilson and Lenahan.
Lenahan was not called as a witness. Wilson who was the first wit-
ness in the case, gave the testimony set forth above upon his first
appearance on the stand. Later the,testimony with respect to Cor-
lett's reports, and the redrafted proposal itself were added to the
record. Subsequently Wilson was called as a witness by the respond-
ent and did not deny any part of Corlett's reports. That the reports
accurately set forth the facts is fully corroborated by the circum-
stances above set forth, and particularly by the absence of any con-
tradiction by Wilson or Lenahan, and by the fact that Corlett
otherwise would hardly have requested Scott to come to the plant
to reaffirm the final proposal. We find that the respondent agreed
to the reinstatement of Ramsey and the resumption of work with
the right of employees to join the union of their own choosing.
At the oral argument before the Board counsel for the A. F. of L.
Affiliates urged that the termination of the strike was secured only
because they sacrificed their rights under the oral agreement. As
stated by counsel, "If the A. F. of L. had said `No, we are going to
stand on our rights and the new men must join' . . . there never
would have been a termination of that sit-down." 34 The contention
rests upon mere assertion. The employees had no knowledge of the
oral agreement, and the conduct of the strikers indicates no dispo-
sition to disregard any rights of the A. F. of L. Affiliates in the
premises. Indeed their conduct with respect to the employees in
the plating department indicates the contrary. Moreover, there is
no evidence that the respondent or the A. F. of L. Affiliates ever
suggested that the strike be terminated under an arrangement
whereby new employees would join the A. F. of L. Affiliates, and
the reason for their failure to do so is explainable by the fact, to
which we have adverted above, that they were concerned about the
u Fully stated , the contention was that "If the A. F. of L . had said No , we are going
to stand on our rights and the new men must join;' and we may seek a closed shop con-
tract, there never would have been a termination of that sit -down ." As pointed out
below, such a contract would have been invalid by reason of the actions of the respondent
during the week of March 19. Consequently the threat that such a contract would be
made would have been tantamount to a threat that the respondent would continue to inter-
fere with , restrain , and coerce its employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
ELECTRIC VACUUM CLEANIOR COMPANY, INC. 619
old and not the new employees. The contention now advanced for
the first time is sheer speculation and has no support in the record.
Indeed it is squarely in conflict with the equally untenable claim of
the respondent that the strike settlement did not provide that em-
ployees might join the union of their own choice.
On March 20, the respondent inserted an advertisement in a news-
paper tersely announcing the closing of the plant on March 22 "as
a result of" a letter received from the Cleveland Federation of
Labor and the A. F. of L. Affiliates. The letter, dated March 20,
stated that, "As the bargaining agent for your employees we request
you to temporarily close your plant, pending present negotiations
with you relative to matters covered by our contract with you." No
testimony was offered to explain the reference to "pending present
negotiations"; and under the circumstances it must have been a refer-
ence to negotiations prior to March 20.
Wilson testified that when the plant was evacuated on the after-
noon of March 19, the respondent expected to resume operations on
its next regular workday, Monday, March 22, and that the first in-
timation that he had that there was any question about it was a
conference in the "late afternoon" on Saturday, March 20, at the
office of the respondent's attorney, at which he, Tuteur, the respond-
ent's president, and seven or eight A. F. of L. officials were present.
The conference, Wilson testified, followed the receipt of the letter
dated March 20. But this fails to account for either the reference
in the letter to "pending present negotiations," or the publication,
of the letter in a newspaper on March 20. The conference must have
occurred not later than March 19. This is borne out by Wilson's
testimony as to what occurred at the conference.
Wilson testified that he, Julius Tuteur, Muehlhoffer and six or
seven other representatives of the A. F. of L. were present at the
conference and that the A. F. of L. representatives "asked us to close
our plant while they might go over the situation and get their lines
in order." Wilson testified that he did not know what led to the
request "other than very obviously there was a group within the plant
that was causing the dissention within the ranks," that though
the respondent did not consider "there was any great proportion" of
dissenters, they "knew there was a group that was trying, as reported
to us at least, to proselyte members of another organization with
whom we had a contract." At the conference, according to Wilson,
the A. F. of L. officials "said it was an acute situation in our plant and
we must close Monday morning or they would not appear for work
Monday morning." What the A. F. of L. proposed to do after the
shut-down, Wilson testified, was not discussed. The A. F. of L. Affili-
ates urge, however, that they demanded the closing of the plant
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of the strike, which, as we have stated above, they claim
was an organizational tactic of the United and, therefore, likely to
recur. As we have already pointed out there is no proof that such
was the purpose of the strike, or that the A. F. of L. Affiliates so
regarded it. The contention that the strike was the reason for the
demand that the plant be shut down is equally without support in
the record. None of the representatives of the A. F. of L. Affiliates
called as witnesses testified as to the negotiations with the respondent
with respect to the shutting of its plant, nor did Wilson testify that
any such reason was assigned. The reason for the demand by the
A. F. of L. Affiliates is plain, and was communicated to the respond-
ent. The A. F. of L. Affiliates were concerned, and demanded a shut-
down, simply because "there was a group that was trying . . . to
proselyte members" of the A. F. of L. Affiliates and the A. F. of L.
Affiliates were determined to prevent further proselyting.
The threat of a strike was not made by the A. F. of L. for the first
time after the sit-down. It had been made as early as March 17
because the men in the machine shop were "joining the C. I. 0." and
now was renewed for the same reason. We have stated above that
the original threat furnished no justification for the respondent's
action in coercing its employees to join the A. F. of L. Affiliates.
The repetition of the threat did not justify it in shutting the plant in
order to prevent its employees from exercising their right to
self-organization.
In its brief the respondent in seeking to justify the shut-down
urged that:
Respondent had no choice in the matter, ... because Ameri-
can Federation of Labor, under its contract, was the bargaining
agent for its employees... .
The contract with the A. F. of L. Affiliates afforded no basis for
interfering with the right of its old employees, who constituted a
large majority of all of its employees, to form, join or assist a labor
organization of their own choosing.35 The contract no more -entitled
the respondent to shut down the plant in order to prevent these
employees from "joining the C. I. 0." than it excused the respondent's
prior action in coercing them to join the A. F. of L. Affiliates.
The notice of the shut-down was, under the circumstances that
preceded its publication, tantamount to a statement that the respond-
ent, again at the instance of the A. F. of L. Affiliates, was taking action
to prevent the organization of the United. The publication of the
notice was itself, therefore, an interference with the rights of its em-
ployees under the Act, and the shut-down was a lock-out to restrain
the exercise of those rights.
3 See discussion supra.
ELECTRIC VACUUM CLEANER COMPANY, INC. 621
About 4 o'clock in the afternoon of March 19 a meeting of the
United was held in the Post Office building in East Cleveland, at
which a large number of employees attended.36 Officers were elected
and apparently it was voted to apply for a charter; an application
for a charter vas received by the national organization about March
21, and a charter issued about April 1.37 The membership cards in
A. F. of L. Affiliates, which the employees had signed in July 1936,
provided that the employee thereby designated the appropriate A. F.
of L. Affiliate as representative for collective bargaining, and further
provided that:
The full power and authority to act for the undersigned as
described herein supersedes any power or authority heretofore
given to any person or organization to represent me and shall
remain in full force and effect for one year from date and there-
after, subject to thirty (30) days written notice of my desire to
withdraw such power and authority to act for me in the matters
referred to herein.
On March 28 a meeting of the United was held, again attended by a,
large number of persons, for the purpose of securing formal resigna-
tions from the A. F. of L. Affiliates, which might be presented in a
body. On Friday, April 2, 1937, United mailed a letter to the
respondent stating that a majority of the respondent's employees had
resigned from the A. F. of L. Affiliates and were members of United ;
that United represented the majority "as to settlement of grievances
arising under the existing contract" 38 and were ready to return to
work under its terms; and that all grievances arising under the con-
tract which affected members of United would thereafter be handled
by the United committee signing the letter. Wilson testified that
because the office was closed over the week end, the letter was not
received until Monday, April 5, a few minutes after the plant had
reopened under arrangement with the A. F. of L. Affiliates. Wilson
did nothing about the letter other than to send it to counsel for
the respondent.
We are satisfied that the arrangement under which the plant was
reopened on April 5 was exactly set forth in a notice published by
the respondent in the newspapers on April 3 and 4, 1937, directed to
the respondent's employees. The notice stated that on July 6, 1936,
the respondent, at the employees' request, had entered into a contract
36 Scott estimated there were about 550 persons present . There was no testimony as to
whether the meeting came to the attention of the A. F. of L. Affiliates. It would seem
likely that it did and it may have precipitated the demand for a shut -down. However,
we make no finding on the point.
S4 The organization was chartered as United Electrical & Radio Workers of America,
Local 720.
38 The "existing contract" obviously meant the written contract of June 1936.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the A. F. of L. Affiliates recognizing them as the employees'
duly chosen agents for collective bargaining; that, thereafter, until
June 23, 1937, it was agreed that the respondent employ only persons
affiliated with the A. F. of L. Affiliates; and that, after conferences
with the employees' agents, it was at their request resuming opera-
tions April 5, 1937, but only those employees who were members of
the crafts under contract with the respondent would be employed.
Attempt was made to explain by the testimony of Wilson, Gordon,
Toth, and Muehlhoffer that it had been agreed between the respond-
ent and the A. F. of L. Affiliates on April 3, before the notice was
published, that old employees were not to be required to show that
they were in good standing with the A. F. of L. Affiliates in order to
return to work; that in fact no such requirement was imposed except
by the Polishers Union ; and that even as to employees within the
jurisdiction of the Polishers Union respondent was ignorant of this
deviation from the terms of the agreement. We are entirely unable
to credit this testimony.
Wilson admitted that he had refused to allow two employees to
return to work on April 5 because they did not have clearance
cards from the A. F. of L. Affiliates '39 that he knew of other similar
cases, and that the agreement was that the A. F. of L. Affiliates
should have the final decision as to who would receive a card.
Muehlhoffer summed up the agreement made on April 3 as providing
that "all the people who go back in there to work the following
Monday would carry a card issued by the respective organizations."
He also testified that "The entire responsibility of who was to go
back in was turned over to the A. F. of L. Unions." Wilson de-
scribed the agreement in almost the same words. Muehlhoffer also
admitted that even before the plant was reopened the Polishers
Union had decided that their members who had become officers or
committeemen in United would not be given clearance cards.
Muehlhoffer, Gordon, and Toth testified that all of the A. F. of L.
Affiliates, except the Polishers Union, gave a clearance card to all
who applied, but none of them specifically denied the testimony of
witnesses called by the Board who told in detail of cards being
refused them, testimony which unlike the general statements' by
Muehlhoffer, Gordon, and Toth, is quite convincing.
Muehlhoffer testified that the respondent was not advised that
some employees were refused cards. But it is clear, even from Wil-
son's own testimony, that the respondent expected that cards would
be refused to some. Wilson admitted that simultaneously with the
reopening of the plant on April 5 the respondent began hiring per-
^ The clearance cards, captioned "Authorization For Representation ," declared that the
employee designated the A . F. of L . Unions as his representative for collective bargaining
for 1 year , and were witnessed by the official issuing it.
ELECTRIC VACUUM CLEANER COMPANY, INC. 623
sons it had never previously employed, although no additional
employees were needed for normal operations. Furthermore, if the
respondent had not expected the A. F. of L. Affiliates to refuse cards
to some employees, Wilson would hardly have "left word at the out-
side office that I was in no position to discuss matters with any
individual and [such individuals] should go through the routine
channels. Moreover, it was established by uncontradicted testimony
that Julius Tuteur'40 the respondent's president, in the presence of
Paulus and Wilson, as well as Frank Ledasil, representative of the
Federal Union, was advised by Mitchell France, an old employee, and
a member of that union, that he had been refused admittance to the
plant on April 9 on the ground that he had no card; and that Tuteur
himself had stated that France would have to obtain a card. Sim-
ilarly it was shown that William H. Fogarty and Frederick Frank,
old employees, told Paulus of their unsuccessful efforts to obtain a
card, only to be advised that a card was essential.
The A. F. of L. Affiliates which had again conferred with the
respondent during the week of March 21, circulated to their members
on March 31, the following notice :
To employees of Electric Vacuum Company :
Representatives of A. F. of L. organizations having a work-
ing agreement with the Electric Vacuum Company have endeav-
ored to clear up the situation that resulted in the closing of the
plant. Conferences have been held with representatives of the
Company and it is now our opinion that the real solution to the
problem is proper enforcement of the present agreement, and
that no one be allowed to resume work unless affiliated with these
organizations.
We are interested in having the plant reopen Monday, April
5th, and in order to get a definite expression from the member-
ship a Special meeting will be held,
Friday April 2nd at 2 P. M.
1000 Walnut Ave.,
* *
We urge all members to attend this meeting so operations may
be resumed Monday morning.
The meeting was held on April 2, and the employees present voted
to return to work on April 5. Gordon testified that
we called a general meeting for the membership and again the
matter was broached that if they had stuck to strictly closed
40 Although France referred to "John" Tuteur, he indicated that he was not certain of
the surname , and clearly showed that he referred to respondent ' s president by describing
the Tuteur to whom he had spoken as "The older Tuteur."
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop, we wouldn't have had any trouble at all because fourteen
or fifteen people out there started this rumpus and the group
was disgusted for their interference and losing them, and we
were definitely instructed to tell the management that the group
was going to work only under strictly closed shop conditions,
and most of the conferences were on that subject.
Gordon further testified that at a conference with the respondent on
the following day,
we asked the management that the group wanted a strictly closed
shop, and after them discussing the matter a while, it was agreed
to let the matter lay for a while until after we got under opera-
tions and then we could go to work and get the closed. shop
through as to the wishes of the body.
Gordon was not a credible witness. We have referred above to his
account of the conferences with the machine-shop employees in the
respondent's offices on.March 16, 17, and 18. His version of the meet-
ing of April 2 and the conference of April 3 is equally implausibl•
If the A. F. of L. Affiliates had consulted "the wishes of the body"
on April 2, there would have been no occasion for deferring the
demand for a closed shop until the sentiment of the members was
ascertained. Moreover, Toth, Gordon's associate, admitted that the
notice published by the respondent on April 3, had been prepared
and agreed upon prior to the conference held that morning. Fur-
thermore, the notice of the meeting issued by the A. F. of L. Affiliates
on March 31, and the notice of reopening of the plant published by
the respondent on April 3 contain exactly the same misrepresentation
as to the agreement between the respondent and the A. F. of L.
Affiliates. Both misrepresented that the contract entered into in
1936 provided for a closed shop. Nor may the misrepresentations
be regarded as "inadvertent." 41 Admittedly the respondent's notice
was not published until finally approved at the conference on April
3 at the office of counsel for the respondent; and it was on its face
a carefully worded statement. We have no doubt, and we find, that
both notices were part and parcel of a single plan devised and exe-
cuted by the respondent and the A. F. of L. Affiliates to liquidate the
United activities among the respondent's employees, and to do so
without risking the reaction that might follow upon an announce-
ment that the respondent and the A. F. of L. Affiliates had decided
to do so by entering into and enforcing a closed-shop agreement.
The notice published by the respondent unquestionably misrepre-
sented to the employees the terms of the oral agreement of 1936;
41 At the oral argument before the Board counsel for the A. P. of L. Affiliates admitted
that the notice published by the respondent on April 3 misrepresented that the agreement
entered into in 1936 was a closed-shop contract , but sought to excuse the misrepresenta-
tion as "inadvertent."
ELECTRIC VACiJTJIVI CLEANER COMPANY, INC. 625
and the misrepresentation was obviously a deliberate attempt to give
the semblance of legality to the respondent's conduct immediately
prior to the shut-down, to justify the shut-down itself, and to conceal
the fact that the closed-shop agreement set forth in the notice was
of recent and consequently tainted origin. There hardly could have
been devised a stratagem more calculated to aid the A. F. of L.
Affiliates to retain and regain their members, and to cut the ground
from under the employees who had sought to organize a United
group. Not only did the notice present an ultimatum, the respond-
ent thereby also concealed from its employees that what was involved
was their legally protected right to make a choice of representatives
without thereby risking discharge.
In substance, though not in form, the arrangement effected between
the respondent and the A. F. of L. Affiliates on or about April 3, 1937,
was an abandonment of the oral agreement as insufficient to meet the
exigencies of the situation and its replacement by a closed-shop
agreement. This, the A. F. of L. Affiliates conceded at the oral
argument before the Board, was the case. They contended, how-
ever, that such an agreement was entirely valid. The contention,
however, was rested upon a number of claims which we have found
without merit. Thus it is the position of the A. F. of L. Affiliates
that prior to April 3, the respondent had engaged in no unfair labor
practices, except the allegedly accidental discharge of Ramsey ; that
the respondent had been subjected to a sit-down strike called as an
organizational tactic by the United and conducted by it with violence
and destruction of property; that while the United was legally en-
titled to solicit members of the A. F. of L. Affiliates it had indicated
a plan to cause defections by violent and unlawful means. Upon
this view of the facts the A. F. of L. Affiliates contend further that
they were authorized to enter into the closed-shop agreement since
they had been designated as collective bargaining representatives by
a majority of employees in July 1936 by membership cards which
stated that such designation was for a period of 1 year, "and there-
after subject to thirty (30) days notice of desire to withdraw," and
it is urged such designation must be presumed to have continued in
effect until April 1937 in the absence of proof of notice of with-
drawal. As we have pointed out above the afore-mentioned con-
tentions with respect to the actions of the respondent and the United
are entirely at variance with the facts. There is, consequently, not.
here presented the question whether during the term of a contract
between a labor organization and an employer and within the period
for which the labor organization had been designated as collective
bargaining representative by a majority of employees, a supple-
mentary closed-shop agreement may validly be made to prevent de-
626' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fections from such labor organization . The situation here presented
is one where during the time preceding the making of such a supple-
mentary agreement the respondent at the instance of the A. F. of L.
Affiliates , had flagrantly interfered with, coerced, and restrained its
employees in their right to join and assist the United , and had
coerced them to affiliate with the A. F. of L. Affiliates . By reason of
such unfair labor practices by the respondent immediately antecedent
to the supplementary closed-shop agreement , the new agreement was
unquestionably illegal and void, and its publication and application
constituted interference with the rights of its employees under the
Act.
In fact , the arrangement of April 3, 1937 , was merely another act
of the same character as the previous interference , restraint, and
coercion , and differed only in the irrelevant element of formality.
The Act does not, however , permit illegality to become transmuted
into legality by the embodiment of unfair labor practices in an agree-
ment. That device affords neither an estoppel nor a franchise.
Section 8 ( 3) of the Act carefully negatives such a possibility- by
excluding from permissible agreements imposing union membership
as a condition of employment , an agreement entered into between
employers and labor organizations which have been established,
maintained , or assisted by unfair labor practices . And here there
had been such assistance , persistent and solicited, if not demanded,
by the A. F. of L. Affiliates.
The contention that the A . F. of L . Affiliates must be presumed to
have represented a majority of the respondent 's employees on April
3, is obviously beside the point. Section 8 (3) of the Act precludes
the execution of a closed -shop with a labor organization established,
maintained or assisted by unfair labor practices , irrespective of
whether it has or has not been designated as collective bargaining
agent by a majority of the employees . Accordingly it is unnecessary
to determine whether, in the absence of the respondent 's unfair labor
practices , the A. F. of L . Affiliates would be presumed to have con-
tinued to be, on April 3, the bargaining agent designated by a
majority of the respondent 's employees . Moreover , having solicited
the unfair labor practices which effectively impaired, if they did
not completely destroy, the possibility of free choice of their bar-
gaining agent by the respondent 's employees , the A . F. of L . Affiliates,
like the respondent , are in no position to invoke a rule of presump-
tion which has for its purpose the determination of whether at a
particular time of labor organization remains the freely designated
representative of employees.
By May 20, 1937 , the respondent had filled all the jobs that existed
on March 22 and had increased its working force to approximately
ELEC'TRIC VACUUM CLEANER COMPANY, INC. 627
1100 employees. According to the pay rolls, approximately 583 of
that number were employees who had been with the respondent
prior to June 1935, when the first oral agreement was made. As we
have stated, employees who resumed their jobs after April 5, 1937,
had been required to obtain clearance cards. Gordon testified that
on May 20, 1937, there were no old employees who were not mem-
bers of the A. F. of L. Affiliates and that substantially all other
employees had joined.
On May 20, 1937, a new agreement was entered into between
A. F. of L. Affiliates providing for recognition of the A. F. of L.
Affiliates as the bargaining agents for all of the respondent's em-
ployees, and for a completely closed shop. This agreement, which
by its terms ran for 1 year, and thereafter from year to year unless
notice of termination was given 30 days before the end of the annual
period, was individually approved by the large majority of the em-
ployees at a meeting of the A. F. of L. Affiliates held for that special
purpose before the contract was' executed. But what we have said
with respect to the agreement of April 3, 1937, is entirely applicable
to the contract of May 20, 1937. In the intervening period the re-
spondent had merely continued its unfair labor practices under the
guise of performance of a closed-shop agreement which had no
validity. Manifestly under such circumstances the majority of the
A. F. of L. Affiliates and the purported referendum are irrelevant.
We find that by the various activities set forth above, the respond-
ent, during the period beginning in March 1937 and continuing
through May 20, 1937, aided in the organizational activities of the
A. F. of L. Affiliates and hindered and impeded the organizational
activities of United, and has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
B. The discriminations as to tenure of employment
The complaint alleges that the respondent, on or about April 5,
1937, and at all times thereafter, failed and refused to recall 28
employees. No evidence was offered with respect to four of those
named, Frank Erzen, Austin Ballard, Frank Hunek and William
Krall. As to them the complaint will therefore be dismissed with-
out prejudice.42 As to each of the remaining 24 the allegations of
the complaint are sustained.
42 Ramsey , who was discharged on March 18 and reinstated on March 19, was excluded
from the plant when it reopened on April 5 because he had no clearance card . When he
sought one the same day he was told his place was filled . He was successful in obtaining
a card on April 21 and was given back his job the following day. The complaint sought
no recovery for the employment lost by him between April 5 and ADriI 22.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nineteen of the twenty-four employees as to. whom we hold dis-
crimination proven were old employees. In their case it is, of course,
unnecessary to review the evidence as to the various occasions when
they were refused employment because they had not obtained clear-
ance cards, or when they were refused clearance cards, or when, after
they had obtained clearance cards, they were refused employment
allegedly because their jobs meanwhile had been filled by persons
hired for the first time on or after April 5, 1937. We have pointed
out in Section III A (2) above that these employees Were never
affected by the oral agreements,43 and that the agreement of April 3,
1937, furnished no justification for requiring them to be members in
good standing of the A. F. of L. Affiliates as a condition of returning
to work.44 We have also pointed out in Section III A (2) above that
pursuant to. the latter agreement employment was given only to those
who complied with that condition and that the places of those who
did not were filled by persons hired to replace them.
The old employees were not required to go through the meaning-
less gesture of asking to be taken back. without a clearance card;
and they were within their rights in not applying for a clearance
card. The refusal of employment to them was a fact immediate
upon the reopening of the plant, and because the respondent never
withdrew the conditions improperly imposed, the refusal was a
continuing one.
Obviously there is no merit in the contention made by the respond-
ent in its brief that in such a casei an employer may plead as a de-
fense that an employee tardily applied for reemployment under the
illegal condition and was rejected becausq his place had been mean-
while filled by one never employed before. From and after April 5,
1937, these employees were in the same position as any employee avow-
edly discharged because of his union activities45 That thereafter such
an employee obtains reemployment by accepting conditions which the
employer had no right to impose merely ends the direct consequence
of loss of wages and requires only that that circumstance be taken into
account in determining the remedy for. the unfair labor practice.
We accordingly find that respondent has at all times failed and
refused to recall to employment the following persons employed
" Indeed, three of the old employees , John Kern, Nicholas Kozma , and Edward Kern,
were never members of the A. F. of L . Affiliates.
44 It is unnecessary. to decide whether application for and acceptance of a clearance
card constituted becoming a member of the A. F . of L. Affiliates in the technical sense.
We will assume such was its effect , or that in any case the condition was one that could
be imposed , pursuant to the proviso clause of Section 8 ( 3), by agreement between an em-
ployer and a labor organization which then represented a majority of the employees and
had not been established , maintained or assisted by unfair labor practices.
ae As we have recently stated, "To condition 'employment unlawfully upon membership
in a particular union . . . Is equivalent to an outright discharge of those employees who
refuse to accept the condition ." Matter of Mason Manufacturing Company and United
Furniture Workers of Atrerica, Local No. 576, 15 N . L. R. B. 295.
ELECTRIC VACUUM CLEANER COOMPANY, INC. 629
by respondent when the plant was shut down on March 22, 1937:
William Behrse, Steve Dragosa, William H. Fogarty, Mitchell France,
Frederick Frank, John Kern, Edward Koutnik, Nicholas Kozma,
Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters,
Alfred Meissner, George Onda, Edward Rericha,46 Mike Smith,
Arthur Troyan, and Theodore Vitosky. We also find that respond-
ent failed and refused to recall to employment, except for the period
from April 26, 1937, until May 10, 1937, Harold Keehl, employed by
respondent when. the plant was shut down on March 22, 1937.
Keehl's reemployment during this brief period seems quite acci-
dental. He obtained a clearance card on April 9, 1937, returned to
work on April 14, was notified by his foreman that he would have
to secure the approval of Ledasil of the Federal Union; he did not
do so, but returned to the plant on April 26 and worked until May
10 when his foreman told him that there was a notice for him to see
Ledasil and pay up his dues in order to hold his job. When he was
unable to do so at once, Ledasil refused to accept any postponement
in payment and'said he would be notified when he might present his
case to the Union, but he never received such notice. We are satis-
fied that Keehl's brief period of reemployment was merely a tempo-
rary oversight on the part of the respondent and presents nothing
essentially different from the other cases.
As stated above, we find that the charge of discrimination also
sustained with respect to five new employees. What has been said
by us as to the status of old employees on and after April 5, 1937,
is no less applicable to them. True, prior to April 3, 1937, they
might, after notice of the oral agreement, have been refused employ-
ment unless they became or remained members in good standing in
the A. F. of L. Affiliates. True also, where a valid agreement is
replaced by an invalid one, the earlier agreement may retain its
vitality for its original term. But we have found that on April 3,
1937, not only was a new agreement made but the earlier oral agree-
ment was mutually abandoned by the respondent and the A. F. of L.
Affiliates as useless for their purposes, because of the rise of the
United, and the fact that the majority of the respondent's employees
were subject thereunder to no restraint against their becoming mem-
bers of United and terminating their membership in the A. F. of L.
Affiliates.
Moreover, we find that the oral agreement is irrelevant to the
issue of discrimination since its existence was never brought to the
notice of the new employees. The only notice they were given was
of the agreement of April 3, 1937, an agreement which they were
entitled to disregard. Certainly it cannot be said that they were
46 Rericha , we have noted, was not allowed to work after March 11, but had been di-
rected to return to his job on March 22.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somehow to divine from such a notice the existence of an antecedent
valid oral agreement relating to new employees only. We have
pointed out in Section III A (2) above that an employer may not
even, pursuant to a valid agreement, threaten an employee with
discharge for failure to join a labor organization unless the em-
ployee is advised of the existence of the agreement.47 We see no
reason to distinguish the case where the employer shuts down its
plant and on reopening, without giving notice of the existence of
an agreement, requires membership in a labor organization as a
condition for returning to work.
Accordingly we find that the new employees were within their
rights in not applying for a clearance card, that by virtue of the
notices published on April 3 and 4, 1937 they were refused employ-
ment on 'the reopening of the plant and that the refusal was a
continuing one. We accordingly find that the respondent has at all
times failed and refused to recall to employment Leo Pierret, Jewell
Smith, .and Joseph Washko, employed by the respondent when the
plant was shut down on March 22, 1937; and has failed and refused
to recall to employment until May 19 and 24, 1937, respectively,
James Mitchell and Rudolph Rummell, employed by the respondent
when the plant was shut down on March 22, 1937, and who have
since May 19 and 24, 1937, respectively, been given employment by
the respondent at their former jobs.
On the basis of the foregoing, we find that the respondent, in
refusing and failing to recall the aforesaid persons to employment
except upon condition that they secure approval of the A. F. of L.
Affiliates, has discriminated against said employees with respect to
hire and tenure of employment in order to discourage membership
in the United and encourage membership in the A. F. of L. Affiliates,
and has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act.
The respondent contends that it is, or should be, absolved of the
charge of discrimination by reason of an agreement made on April
7, 1937, between the United and the A. F. of L. Affiliates whereby
the latter agreed to issue clearance cards to all employees who be-
came members. Though disclaiming any part in this agreement,
the respondent claims the benefit thereof but urges that it is not
chargeable with the immediate breach thereof by the A. F. of L.
Affiliates, of which we find it had knowledge. Even if the agree-
ment had been one to which the respondent were a party, or had
been one which it had thereafter in some manner adopted, it is clear
that the agreement would not affect the power of the United to
file, and of the Board to accept, the charges in the present proceed-
47 See discussion, supra.
ELECTRIC VACUUM CLEANER COMPANY, INC. 631
ings , or lead the Board, as a matter of discretion, to withhold action
on the respondent's unfair labor practices. The Board was not a
party to the agreement. Hence it is clear that, since Section 10 (a)
of the Act makes exclusive the power of the Board to prevent per-
sons from engaging in unfair labor practices affecting commerce,
even an agreement binding a labor organization not to file charges
of unfair labor practices with the Board, would not be binding upon
the Board or in any manner affect the validity of charges filed with
the Board 48 The agreement in the instant case, moreover, did not
purport to be, and was in no sense an agreement by the United not
to file charges with the Board; on the contrary, it was no more than
an attempt to secure employment for those of its adherents who
were willing to comply with a condition which we have found was
unlawfully imposed by the ,respondent. Indeed, the respondent,
having misrepresented the facts with respect to the closed-shop agree-
ment and thereby concealed its illegality, is hardly in a position to
urge any argument of estoppel. Furthermore, the agreement of April
7 having been breached by refusals of the A. F. of L. Affiliates to
issue clearance cards, the agreement affords no reason why the
Board should not act upon the charges filed by the United.4° Finally,
in the instant case, to give to the agreement of April 7 the effect now
urged by the respondent, would be to sanction the continuance of
the respondent's unfair labor practices, since, as we have pointed out
above, the closed-shop agreements of April 3, and May 20, 1937,
were merely the embodiment and formalization thereof. It is clear,
therefore, that an order should issue that such unfair labor practices
shall cease.50
We have pointed out in Section III A (2) above, that at the time
of the shut-down on March 22, 1937, the respondent's employees were
working on a 40-hour week, and were entitled to seniority, and that
these conditions were continued by the contract of May 20, 1937.
We have also pointed out that 2 of the 24 employees as to whom
the charges of discrimination were sustained were reemployed by
the respondent. Of these two, Mitchell was earning 57 cents an
hour and Rummell 54 cents an hour at the time of the shut-down
on March 22, 1937. Neither of them earned anything from April
5, 1937, to the date of his reemployment.
The following employees were unemployed at the time of the
hearing and had had no employment since the plant was shut down
on March 22, 1937, at which time their hourly pay was at the rate
8 Matter of General Motors Corporation and Delco -Remy Corporation and International
Union United Automobile Workers of America, Local No. 146, 14 N. L. R. B. 113.
49 Cf. Matter of Harry A. Half, doing business as The Half Manufacturing Company
and International Ladies Garment Workers Union, 16 N. L. R. B. 667 , and cases cited
in footnote 9 therein.
60 See Section V, infra.
283029-41-vol. 18-41
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated after their names: France, 58 cents; Koutnik, 73 cents;
Kozma, 62 cents; Jewell Smith, 43 cents; Mike Smith, 60 cents; and
Vitosky, 62 cents.
Keehl and Pierret had been earning 58 and 56 cents an hour, re-
spectively, at the time of the shut-down. Since then, except for
Keehl's temporary recall by the respondent from April 26 until May
10, 1937, they had worked only at odd jobs, from which Pierret had
earned $8 and Keehl an unstated amount, which together with relief
he had received, totaled approximately $90.
Fogarty who had received 58 cents an hour prior to the' shut-down
had been unemployed until May 31, 1937, when he obtained a part-
time job at which he had earned approximately $20.90 at the time
of the hearing.
At the time of the hearing Dragosa and Macho had temporary
jobs from which they had earned approximately $230 and $154.85,
respectively, since the closing of the plant, at which time their hourly
rate had been $105. Washko also had a temporary job at the time
of the hearing and had had odd jobs. The amount of his earnings
does not appear. Prior to the shuting of the plant his hourly rate
had been 57 cents.
At the time of the hearing Frank, Kern, Kruse, Masters, Meissner,
and Troyan were employed. All but Kern, however, testified that they
did not know whether their new jobs were permanent, and Kern
stated that he believed his was temporary. Both Frank and Kern
had been employed by respondent for 5 years, and were receiving
58 cents an hour before the shut-down. Frank did not obtain em-
ployment until May 25, 1937; his new job worked a 9-hour day; in
it he had earned $67.20. Kern obtained other employment for the
first time on April 28, 1937; and had earned on an average of $i25
a week in his new job. Kruse, Masters, Meissner, and Troyan were
receiving $1.05 an hour when the plant was shut down. Kruse has
been employed by respondent for 7 years; Masters for 14 years;
Meissner for 8 years; and Troyan for 3 years. Kruse was unem-
ployed until June 5, 1937, and had earned $30 since, at the daily rate
of $5. Masters had obtained employment at least twice prior to the
hearing. Altogether he had earned approximately $145, of which
approximately $45 had been earned at a job obtained on June 9, 1937,
at.which he averaged about $7.50 a day. Meissner first secured work
May 18, 1937, and had earned $85 at the new job, which paid less than
he had received when employed by respondent. Troyan, like Mas-
ters had obtained employment at least twice since the shut-down;
none of the jobs paid as high a rate as he had received at respondent's,
and his earnings for 8 pay periods prior to the hearing totaled only
$204.03.
ELECTRIC VACUUM CLEANER COMPANY, INC. 633
Rericha had been employed by respondent for 11 years and had re-
ceived an hourly rate of $1.05. He had obtained a job for the first
time on June 11, 1937. His earnings do not appear.
C. The alleged refusal to bargain
No evidence of refusal to bargain was offered except the dispatch
by United of the letter dated April 2 which we have summarized in
connection with Section III A (2) above. In that connection we
have also pointed out that the letter was not shown to have been
received prior to the reopening of the plant on April 5, 1937, and
that no answer was ever sent. The respondent's continued insistence
upon membership in the A. F. of L. Affiliates as a condition of return
to work was, however, at least equivalent to a categorical rejection
of the demand set forth in the letter.
There was put in evidence a list of 543 names prepared by March
26, 1937, purportedly, from signed application cards of United. The
list was prepared in connection with the meeting, referred to in
Section III A (2) above, called by United to secure a declaration
by those who had been members of the A. F. of L. Affiliates that they
wished to sever such affiliation. Not more than 300 of those attend-
ing the meeting indicated such a wish. The evidence does not show
how many others were present but did not speak up though they were
members of the A. F. of L. Affiliates, or how many of those present
had never become members of A. F. of L. Affiliates before joining
the United.
Comparison of the list of March 26, 1937, with the 923 names on
respondent's pay roll for the week preceding the shut-down of the
plant indicates at least that approximately 500 of the 543 names
correspond with those on the pay roll. However, the purpose for
which the meeting of March 26, 1937, was held, indicates the United
representatives felt employees had not understood that by signing
application cards in United they thereby disavowed the right of the
A. F. of L. Affiliates to represent them. In any event it is unneces-
sary to decide whether that inference should be drawn from the
fact of the meeting, or whether it is overcome by any other evidence,51
since the evidence as to the preparation of the list itself is not sufficient
to authenticate it as having been prepared from the application cards.
Lowrance, financial secretary and treasurer of the United local
organized among respondent's employees, testified that he had
received 623 signed application cards of United. He testified that
50 of the cards had disappeared from United's office and submitted
51 The United application card stated that the applicant authorized and requested
United "to represent me for the purposes of collective bargaining in regard to wages, hours
and working conditions for a period of one year."
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the remaining 573 cards for confidential inspection of the Trial
Examiner . Apparently the 623 cards represented an increment of
80 cards at some time since March 26, 1937. Lowrance, however,
indicated no personal knowledge as to whether all the cards bore
the names of the respondent's employees, and, in view of what we
have found with respect to the list of March 26, 1937, we cannot
say such was the case. Since United was unwilling to permit inspec-
tion of the cards by the respondent or the A. F. of L. Affiliates, they
were refused admission in evidence.
The list put in evidence does not establish that the United on or
about April 5, 1937, represented a majority of the respondent's em-
ployees in a unit consisting of all employees in the production and
maintenance departments, exclusive of clerical and supervisory em-
ployees, which unit is alleged in the complaint, and admitted in the
respondent's answer, to constitute an appropriate unit. Nor does the
record include evidence which would enable us to determine whether
the United on April 5, 1937, represented a majority of the respondent's
employees in any of the five units which the A. F. of L. Affiliates
urge that the record shows exist and each of which they claim con-
stitutes an appropriate unit .52 We will, therefore, dismiss the allega-
tions of the amended complaint that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Sections
III A (2) and III B above, occurring in connection with the opera-
tions 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 have led and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from the un-
fair labor practices in which we have found it to have engaged, and
in aid of such order and as a means for removing and avoiding the
consequences of such practices, that the respondent be directed to
take certain affirmative action, more particularly described below.
We have found that on April 3, 1937, the respondent entered into
an agreement, supplementary to a written agreement made on July
6, 1936, which provided for hours and general working conditions.
12 The A. F. of L. Affiliates contend that the production and maintenance employees
Within their respective jurisdictions constitute five separate units.
ELECTRIC VACUUM CLEANER COMPANY, INC. 635
We have found that said supplementary agreement provided that
membership in the A. F. of L. Affiliates would be a condition of con-
tinued employment by the respondent of persons then in its employ
and a condition of employment of persons thereafter employed by
the respondent. We have found that by reason of assistance there-
tofore rendered to said A. F. of L. Affiliates by various unfair labor
practices set forth above, said supplementary agreement was not
within the proviso clause of Section 8 (3) of the Act. We accord-
ingly found that said supplementary agreement, the respondent's
publication thereof and actions in accordance therewith, constituted
interference, restraint, and coercion of the respondent's employees in
the exercise of the rights guaranteed under the Act. We have ac-
cordingly found that the respondent by making said supplementary
agreement, publishing the same, and acting in accordance with its
terms at all times until May 20, 1937, further assisted said A. F. of L.
Affiliates by unfair labor practices. We have further found that on May
20, 1937, the respondent entered into a superseding agreement with
the A. F. of L. Affiliates which incorporated the terms of said supple-
mentary agreement. We have found that by reason of the assistance
theretofore rendered to said A. F. of L. Affiliates by the respondent
by the various unfair labor practices set forth above, including the
supplementary agreement of April 3, 1937, the respondent's publica-
tion thereof and actions in accordance therewith, the provisions of
said agreement of May 20, 1937, providing that employment by the
respondent should be conditioned upon membership in said A. F. of L.
Affiliates was not an agreement which was within said proviso clause
of Section 8 (3) of the Act. We accordingly found that said agree-
ment constituted interference, restraint, and coercion of the respond-
ent's employees in the exercise of their said rights. It is plain that
under these circumstances to render our cease and desist order effec-
tive it is necessary that the respondent be specifically directed to
cease giving effect to so much of said agreement of May 20, 1937, as
imposes said condition of employment, and to any agreement which
may now be in effect, in so far as such agreement requires as a con-
dition of employment membership in said A. F. of L. Affiliates.
We have pointed out that by reason of the respondent's inter-
ference, restraint, and coercion its employees have not been free at
any time since April 3, 1937, to exercise freely their right to designate
or select representatives for collective bargaining. Yet, by its terms,
the agreement of May 20, 1937, has renewed itself for a second, and
now for a third year. To permit the renewal provision of a contract
entered into under such circumstances to have force and effect even
if another labor organization were hereafter designated by the em-
ployees as their representative would itself serve only to interfere
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrain, and coerce employees from designating such other
labor organization. While under the special circumstances of the
present case, we shall not require the respondent to disavow alto-
gether the agreement of May 20, 1937, in order to permit an un-
fettered choice by employees of their representatives, we do find it
unquestionably necessary, so as to remove the effect of the respond-
ent's interference, coercion, and restraint, since March 1937, to re-
quire that the respondent, if, as, and when another labor organization
shall have been certified by the Board as the exclusive representative
of its employees for the purposes of collective bargaining, shall cease
and desist from giving any effect to said agreement and to any ex-
tension, renewal, modification, or supplement thereof, or to any super-
seding contract which may now be in effect.
We have also found that respondent discriminated, within the
meaning of the Act, in regard to hire and tenure of employment of
William Behrse, Steve Dragosa, William H. Fogarty, Mitchell
France, Frederick Frank, Harold Keehl, John Kern, Edward Kout-
nik, Nicholas Kozma, Arthur Kruse, Howard Lowrance, Joseph
Macho, John Masters, Alfred Meissner, James Mitchell, George Onda,
Lee Pierret, Edward Rericha, Rudolph Rummell, Jewell Smith, Mike
Smith, Arthur Troyan, Theodore Vitosky, and George Washko, by
failing and refusing to recall said persons to employment on April
5, 1937, or at any time thereafter, except that Mitchell was recalled
to employment on May 19, 1937, and Rummell on May 24, 1937,
and Keehl was temporarily called to reemployment from April 26
until May 10, 1937. Accordingly we shall order the respondent to
make these employees whole for any loss of pay they have suffered
by reason of said failure and refusal to recall them to employment,53
by payment to each of them of a sum of money equal to the amount
he would normally have earned as wages from April 5, 1937, to the
date of reinstatement or placement on a preferential list as herein-
after provided, less , his net earnings 54 during said period.55 How-
ever, since we, on our own motion, gave notice on March 16, 1939,
Is The circumstances that Rummell was ill for a period of 2 or 3 weeks between April 5
and May 24 , 1937 will, of course , be taken into account in determining his loss of pay
during said period.
54 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 than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R . B. 440. Monies
received for work performed upon Federal , State, county , municipal , or other work-relief
projects are not considered as earnings , but, as provided below in the Order , shall be de-
ducted from the sum due the employee and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal , State, county , municipal , or other government
or governments which supplied, the funds for said work -relief projects.
m This is the same affirmative action as was ordered by the Board on July 7, 1938, with
respect to said employees.
ELECTRIC VACUUM CLEANER COMPANY, INC. 637
of intention to vacate, and on April 11, 1939, vacated the decision and
order issued by the Board on July 7, 1938, the respondent will be
relieved from paying said employees back pay with respect to the
period from March 16, 1939, to the date of our present order.
The employees whom we shall order made whole other than
Mitchell and Rummell shall be reinstated by the respondent in the
manner set forth below. We are of the opinion that the usual remedy
in such cases is here necessary to effectuate the purposes and policies
of the Act. Accordingly, we shall order the respondent to offer
these employees reinstatement to their former 56 or substantially
equivalent positions. All, or such number as may be necessary, of
the employees hired by the respondent after March 19, 1937, and
not in the employ of the respondent on March 19, 1937, shall be
dismissed to provide employment for those to be offered, reinstate-
ment. If thereupon, despite such reduction in force, there is not
sufficient employment immediately available for the employees pres-
ently employed by the respondent, excluding those so dismissed, and
the employees to be offered reinstatement, all available positions shall
be distributed among the employees presently employed, except those
so dismissed, and the employees to be offered reinstatement, in accord-
ance with the respondent's usual method of reducing its force, with-
out , discrimination against any employee because of his union
affiliation and activities, following such a system of seniority or other
procedure to such extent as has heretofore been applied in the con-
duct of the respondent's business. In making such distribution the
employees to be offered reinstatement shall be considered as entitled
to the seniority and other rights and privileges which would have
been theirs had the respondent not failed and refused to recall them
to employment on April 5, 1937.
Those employees remaining after such distribution, for whom no
employment is immediately available, shall be placed upon a prefer-
ential list with priority determined among them by such system of
seniority or other procedure as has been heretofore followed by the
respondent, and' shall thereafter, in accordance with such list, be
offered employment in their former or in substantially equivalent
positions, as such employment becomes available and before other
persons are hired for such work. .
THE REPRESENTATION CASE
As we have pointed out in Section III C above, the United contends
that all of the production and maintenance employees at the re-
spondent's plant, excluding supervisory and clerical employees con-
ea By former position is meant the respective positions held on March 19, 1937.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stitute an appropriate unit, whereas the A. F. of L. Affiliates urge
that the production and maintenance employees within their respective
jurisdiction constitute five separate units. The A. F. of L. Affiliates
have asked that the record be reopened so as to permit them to ad-
duce additional evidence upon the question of the appropriate unit.
In view, however, of the length of time that has elapsed since the
filing of the petition and the holding of the hearing thereon, we shall
deny the application, but will dismiss the representation proceedings
without prejudice to the filing of a new petition by either the United
or the A. F. of L. Affiliates.
Upon the basis of the foregoing findings of fact and the entire
record in the proceeding, the Board makes the following :
CONCLusIONs OF LAW
1. International Molders Union of North America, Local No. 430;
Pattern Makers Association of Cleveland and Vicinity; Metal Pol-
ishers International Union, Local No . 3; International Association of
Machinists , District No. 54; Federal Labor Union No. 18907; and
United Electrical & Radio Workers of America are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. The respondent , by discriminating in regard to the hire and
tenure of employment of William Behrse, Steve Dragosa, William
H. Fogarty , Mitchell France, Frederick Frank , Harold Keehl, John
Kern , Edward Koutnik, Nicholas Kozma, Arthur Kruse, Howard
Lowrance, Joseph Macho , John Masters, Alfred Meissner, James
Mitchell , George Onda, Leo Pierret , Edward Rericha , Rudolph Rum-
mell, Jewell Smith , Mike Smith , Arthur Troyan, Theodore Vitosky,
and George Washko, thereby encouraging membership in the first
five labor organizations mentioned in paragraph 1 above, and dis-
couraging membership in United Electrical & Radio Workers of
America, has engaged in and is engaging' in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
3. The respondent , by interfering with, restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged and is engaging in unfair labor practices within
the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
ELECTRIC VACUUM CLEANER COMPANY, INC . 639
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 re-
spondent, Electric Vacuum Cleaner Company, Inc., and its officers,
successors, and assigns, shall :
1. Cease and desist :
(a) From discouraging membership in United Electrical & Radio
Workers of America or any other labor organization by refusing to
reinstate, or otherwise discriminating against its employees in regard
to hire and tenure of employment, or any term or condition of
employment;
. (b) From encouraging membership in International Molders
Union of North America, Local No. 430; Pattern Makers Association
of Cleveland and Vicinity; Metal Polishers International Union,
Local No. 3; International Association of Machinists, District No.
54; Federal Labor Union No. 18907; or any other labor organization
by discharging, refusing to reinstate, or otherwise discriminating
against its employees in regard to hire or tenure of employment,
or any term or condition of employment;
(c) From giving any effect to the provisions of paragraph (c)
of Article III of the agreement dated May 20, 1937, with the labor
organizations designated by name in paragraph 1 (b) of this Order,
that : "The Employer 67 agrees to employ only members of the
Unions 88 in good standing in their respective Unions, and should
the employer require more employees than those now employed, the
Employer will secure such employees through the Unions. If, how-
ever, the Unions are unable to furnish such employees, the employer
may secure them elsewhere, it being understood, however, that such
employees so secured shall become members of the Union," or to
any agreement which may now be in effect, in so far as such agree-
ment requires as a condition of employment membership in the
labor organization, or any of them, designated by name in para-
graph 1 (b) of this Order;
(d) From giving any effect to said agreement dated May 20, 1937,
or to any extension, renewal, modification, or supplement thereof, or
to any superseding agreement which may now be in effect, if, as
and when any labor organization other than the labor organizations
designated by name in paragraph 1 (b) of this Order shall here-
after be certified by the National Labor Relations Board as the
exclusive representative of its employees for the purposes of collective
bargaining;
87 I. e., respondent, Electric Vacuum Cleaner Company, Inc.
08 I. e., the labor organizations designated by name in paragraph 1 (b) of this Order.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively 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
National Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to William Behrse, Steve Dragosa, William H. Fogarty,
Mitchell France, Frederick Frank, Harold Keehl, John Kern,
Edward Koutnik, Nicholas Kozma, Arthur Kruse, Howard Low-
rance, Joseph Macho, John Masters, Alfred Meissner, George Onda,
Leo Pierret, Edward Rericha, Jewell Smith, Mike Smith, Arthur
Troyan, Theodore Vitosky, and George Washko, reinstatement to
their former or substantially equivalent positions with the respond-
ent, without prejudice to their seniority and other rights and privi-
leges, dismissing, if necessary, all of the employees presently working
for the respondent who were hired since March 19, 1937, and not in
its employ on March 19, 1937, in the manner set forth in the section
entitled, "The remedy," above; and place those employees for whom
employment is not immediately available upon a preferential list and
offer them employment as it becomes available, in the manner set
forth in said section;
(b) Make whole the following named employees for any loss of
pay they have suffered by reason of failure or refusal to recall them
to employment on April 5, 1937, and thereafter, by payment to each
of them of a sum of money equal to the amount which he normally
would have earned as wages from April 5, 1937, to March 16, 1939,
and from the date of this Order to the date of his reinstatement or
placement on a preferential list pursuant to paragraph 2 (a) of this
Order, less his net earnings during said period; deducting, however,
from the amount otherwise due to each such employee, monies re-
ceived by him during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects: Wil-
liam Behrse, Steve Dragosa, William H. Fogarty, Mitchell France,
Frederick Frank, John Kern, Edward Kotnik, Nicholas Kozma,
Arthur Kruse, Howard Lowrance, Joseph Macho, John Masters,
Alfred Meissner, George Onda, Leo Pierret, Edward Rericha, Jewell
Smith, Mike Smith, Arthur Troyan, Theodore Vitosky, and George
Washko ;
ELECTRIC VACUUM CLEANER COMPANY, INC. 641
(c) Make whole Harold Keehl for any loss of pay he may have
suffered by reason of failure or refusal to recall him to employment
on April 5, 1937, and thereafter, except temporarily from April 26
until May 10, 1937, by paying him a sum of money equal to the
amount which he normally would have earned as wages from April
5 to April 26, 1937, and from May 10, 1937, to March 16, 1939, and
from the date of this Order to his reinstatement or placement on a
preferential list pursuant to paragraph 2 (a) of this Order, less his
net earnings during said periods; deducting, however, from the
amount otherwise due him, monies received by him during said
periods for work performed upon Federal, State, county, municipal,
or other work-relief projects, and pay over the amount, so deducted,
to the appropriate fiscal agency of the Federal, State, county, munici-
pal, or other government or governments which supplied the funds
for said work-relief projects;
(d) Make whole James Mitchell and Rudolph Rummell for any
loss of pay they may have suffered by reason of refusal or failure
to recall them to employment on April 5, 1937, and thereafter until
May 19 and 24, 1937, respectively, by payment to each of them a sum
of money equal to the amount which he normally would have earned
as wages from April 5 to May 19, 1937, in the case of James
Mitchell and from April 5 to May 24, 1937, in the case of Rudolph
Rummell, less his net earnings during said period; deducting, how-
ever, from the amount otherwise due each of them monies received
by him during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for such work-relief projects;
(e) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of sixty (60) consecu-
tive days, from the date of such posting stating that the respondent
will cease and desist in the manner set forth in 1 (a), (b), (c), (d),
and (e) and that it will take the affirmative action set forth in 2
(a), (b), (c), and (d) of this Order;
(f) Notify the Regional Director for the Eighth Region, Cleve-
land, Ohio, in writing within ten (10) days from the date of this Order
what steps the respondent has taken to comply herewith.
IT Is FURTHER o1mmwD that the complaint, in so far as it alleges
that the respondent discriminated in regard to the hire and tenure
of employment of Frank Erzen, Austin Ballard, Frank Hunek, and
William Krall, within the meaning of Section 8 (3) of the Act, be,
and it hereby is, dismissed without prejudice.
. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AND IT IS HEREBY FURTHER ORDERED that the complaint, in so far as
it alleges that the respondent has engaged in unfair labor practices
within the meaning of Section 8 (5) of the Act, be, and it hereby
is, dismissed.
AND IT IS HEREBY FURTHER ORDERED that the petition for investiga-
tion and certification of representatives filed herein, be, and it hereby
is, dismissed without prejudice.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.