Hicks Body Co.

National Labor Relations Board - Board Decisions

Jul 30, 1941

33 N.L.R.B. 858 (N.L.R.B. 1941)

In the Matter of HICKS BODY COMPANY and FEDERAL LABOR UNION
No. 22207 , AFFILIATED WITH THE A. F. L.
In the Matter of HICKS BODY COMPANY and HICKS EMPLOYEES UNION
Cases Nos. C-1847 and R-1773.-Decided July 30, 1941
Jurisdiction : bus manufacturing industry.
Unfair Labor Practices
Company-Dominated Union: held: organization has arisen out of and is a
successor to an admitted dominated organization where it has been initiated,
formed, and promoted by the attorney, efficers, and some of the members of
the predecessor, where the predecessor permitted it to conduct its activities
at the predecessor's headquarters, transferred its treasury to it, and then
ceased all activity, and where the employer at no time disestablished the
predecessor or did anything "to mark the separation between the two organ-
izations to publicly deprive the successor of the advantage of its apparently
continued favor"-support: hasty recognition and granting of closed-shop
contract after a check of its cards by a private individual without deter-
mination of authenticity of signatures on the cards ; disregarding results of
election pending representation proceeding.
Discrimination: discharge caused by employee's union activities ; discharges pur-
suant to invalid closed-shop contract with company-dominated union.
Remedial Orders : employer ordered to disestablish successor dominated organi-
zation and cease giving effect to contracts with it; recognition ordered with-
held from predecessor organization no longer in existence ; reinstatement
and back pay awarded.
Practice and Procedure : election is set aside since the winning organization was
company-dominated and has ceased to exist; charging union's participation
with company-dominated organization in election did not clear such organiza-
tion of its company-dominated character ; petition dismissed without prejudice
in view of the time which has elapsed and the events which have occurred
since the filing of the petition.
Mr. Arthur R. Donovan and Mr. Robert D. Malarney, for the
Board.
Parr, Parr and Parr, by Mr. Willett H. Parr, Jr., and Mr. A. A.
Parr, of Lebanon, Ind., for the respondent. -
Gullion & Thompson, by Mr. E. C. Gullion, of Lebanon, Ind.,
for the H. E. U.
Mr. Frank S. Pryor, Mr. Hollis G. Davison, and Mr. Hugh Gorm-
ley, of Indianapolis, Ind., and Mr. Herbert Thatcher, of Washington,
D. C., for the Federal.
Mr. Richard H. Oberreich and Mr. Fred S. Galloway, of Indian-
apolis, Ind., for the B. B. B.
Mr. George Turitz, of counsel to the Board.
33 N. L. R. B., No. 162.
858
HICKS BODY COMPANY
DECISION
AND
ORDER
STATEMENT OF THE CASE
859
Upon charges and amended charges duly filed by Federal Labor
Union No. 22207, affiliated with the American Federation of Labor,
herein called the Federal, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Eleventh Region
(Indianapolis, Indiana), issued its complaint dated December 26,
1940, against Hicks Body Company, Lebanon, Indiana, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7),
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notice of hearing and
copies of the third amended charge, were duly served upon the re-
spondent, the Federal, Hicks Employees Union, herein called the
H. E. U., and Bus Body Builders' Independent Union Local
Number 29, herein called the B. B. B., labor organizations alleged
in the complaint to be company dominated. At the hearing the com-
plaint was amended in certain respects.
With respect to the unfair labor practices, the complaint, as
amended, alleged in substance that the respondent (1) on or about
June 1, 1937, and thereafter, sponsored, fostered, and encouraged
membership in the H. E. U., and thereafter dominated and inter-
fered with the administration of the H. E. U. and contributed support
thereto; (2) on or about July 2, 1940, dissolved or caused to be dis-
solved the H. E. U., and thereafter sponsored the formation of the
B. B. B., dominated and interfered with the administration of the
B. B. B. and contributed support thereto, and discouraged member-
ship in the Federal by indicating to employees that it favored the
B. B. B. as against the Federal, and that it favored the existence,
maintenance, growth, and perpetuation of the B. B. B.; (3) on or
about July 27, 1940, entered into a closed-shop contract with the
B. B. B., at which time the B. B. B. had not been selected or desig-
nated as representative for collective bargaining by an uncoerced
majority of the respondent's employees; (4) on November 10, 1939,
discharged Joseph Harold Bishop, and thereafter refused to reinstate
him, because he was an outstanding and aggressive member of the
Federal and engaged in concerted activities for the purposes of col-,
lective bargaining and other mutual aid and protection; (5) on
August 31, 1941, discharged 12 named employees upon demand for
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their discharge by the B. B. B., and thereafter refused to reinstate
these employees, because they refused to join the B. B. B. and were
outstanding and aggressive members in support of the Federal and
engaged in concerted activities for the purposes of collective bar-
gaining and other mutual aid and protection; 1 and (6) by the acts
alleged above and by other acts and conduct interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On or about December 30, 1940, the respondent filed with the
Regional Director a motion to dismiss the complaint as to the H. E. U.,
on the ground, among others, that in a proceeding participated in by
the Board, the Federal, and the H. E. U., the Board conducted an
election in which the names of the Federal and the H. E. U. appeared
on the ballot; that neither union objected to the participation of the
other in said election because of any unfair labor practices of the
respondent; that until the votes had all been cast and counted and all
objections had been made at the said election, neither union made
any charge that the respondent had violated the Act; and that un-
reasonable delay elapsed between the filing of the charges and the
service of the complaint. The Regional Director did not rule upon
the motion, which was renewed at the hearing and denied by the
Trial Examiner. For reasons discussed below this ruling is hereby
affirmed.2 On January 4, 1941, the respondent filed its answer which,
as amended at the hearing, admitted that the respondent entered into
the closed-shop contract with the B. B. B. referred to in the complaint,
and admitted that the respondent discharged Bishop and the 12 other
employees named, but otherwise denied the allegations of the com-
plaint, as amended, with respect to the unfair labor practices. The
answer affirmatively alleged, inter alia, that the respondent bar-
gained with the B. B. B. and made and subsequently enforced the
closed-shop contract because it was satisfied, after investigation, that
the B. B. B. represented a majority of the respondent's employees,
and because of strike threats made by the B. B. B. The answer alleged
also that prior to its recognition of the B. B. B. the respondent had
requested advice of the Regional Director and that although the
Regional Director advised that it withhold recognition from the
B. B. B., he was unable to advise the respondent further. The answer
further alleged that Bishop was discharged for cause and that the
respondent was not aware at or before the discharge that Bishop was
a member of the Federal, or that he had engaged in activities on its
1 The complaint , as served upon the parties , listed the following 11 names : Earl Smith,
Robert Marsh , 0 W. Eastridge , Oscar Lane , John Scott , Don Baldwin , Fred Flinn, J. E.
Day. Lorenzo Dougherty , Norval Frich , and Paul Martin At the opening of the bearing
the name of Forest Dougherty , Jr , was added by amendment without objection.
2 See Section III, C, 2 , infra.
HICKS BODY COMPANY 861
behalf. On January 11, 1941, the B. B. B. filed with the Regional
Director a motion to intervene, which was granted by the Regional
Director that day.
On October 21, 1940, the Board had issued its order consolidating
the complaint case with the above-entitled representation proceeding,
which had been instituted by petition filed by the H. E. U. on January
15, 1940.3
Pursuant to notice, a hearing was held at Lebanon, Indiana, from
January 16 to 25,1941, before Henry J. Kent, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
the Federal, and the B. B. B. were represented by counsel and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the close of the hearing the re=
spondent moved to dismiss the allegations of the complaint with
respect to the alleged domination of the B. B. B. and the alleged dis-
criminatory discharges; and the Federal moved that the Board certify
the Federal as exclusive bargaining representative of the employees.
The Trial Examiner reserved ruling on the respondent's motion, and
referred the Federal's motion to the Board. For reasons hereinafter
set forth, the motion to certify the Federal is hereby denied.4 At the
close of the hearing the respondent was granted leave to take the tes-
timony of two witnesses by deposition. Subsequently, on stipulation
of all parties, sworn statements were submitted in lieu of formal depo-
sitions, and on February 17, 1941, pursuant to order of the Trial
Examiner, the said statements were entered as exhibits and incorpo-
rated as part of the record and the record was closed. During the
course of the hearing the Trial Examiner made a number of rulings
on other motions and on objections to the admission of evidence, and
at the close of the hearing granted a motion by counsel for the Board to
amend the complaint to conform to the proof. The Board has re-
viewed such rulings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The respondent and counsel for the
8 On April 30 , 1940, the Board issued its Decision and Direction of Election in the repre-
sentation proceeding ( 23 N L. R B. 462, pursuant to which , on May 16 , 1940, the
Regional Director conducted an election by secret ballot among employes of the respondent
to determine whether they desired to be represented by the H. E. U . or the Federal for the
purposes of collective bargaining, or by neither. In his Election Report, dated May 18,
1940, the Regional Director reported , among other things, that of 176 ballots cast, 85 were
for the H. E . U, 78 for the Federal , and 13 were challenged He recommended that 5 of
the challenges be sustained and 8 overruled . On May 23, 1940 , the Federal filed Objections
to the Election , wherein, inter alia, it alleged that the H . E. U. was company dominated, and
on or about May 28, 1940 , the H . E. U. filed an affidavit in reply to the Federal 's Objec-
tions. On June 1, 1940 , the Regional Director issued his Report on the Objections , wherein
he made no ruling on the objection that the H . E. U. was company dominated , but over-
ruled the remaining objections . Before further action was taken in the representation pro-
ceeding the charges herein were filed , and final disposition of the representation proceeding
has been held in abeyance pending the outcome of the present complaint proceeding.
4 See Section VI, infra.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board filed briefs with the Trial Examiner, and the respondent also
filed a reply brief.
On or about April 1, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties, in which
he denied the respondent's motions to dismiss the complaint and found
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1),
(2), and (3), and Section 2 (6) and (7), of the Act. He recommended
that the respondent cease and desist from such practices ; that it re-
instate, with back pay, Bishop and the other 12 employees named in
the complaint, as amended; and,that it withdraw all recognition from
the B. B. B. as the bargaining representative of any of its employees.
On April 24, 1941, the respondent requested oral argument and filed
a petition that a certain resolution of the B. B. B. be made part of the
record, or in the alternative that the record be opened for the admis-
sion of the resolution in evidence. For reasons set forth below, the
motion is hereby denied. On May 9 and 15, 1941, the respondent and
the B. B. B. filed their respective exceptions to the Intermediate Re-
port. On May 19, 1941, the B. B. B. filed a brief with the Board,
and the respondent filed a supplemental brief. On June 10, 1941, pur-
suant to notice, a hearing was held before the Board at Washington,
D. C., for the purpose of oral argument. The respondent and the
Federal were represented by counsel and the B. B. B. by its repre-
sentative, and all participated in, the hearing: The, Board has con-
sidered the briefs and the exceptions to the Intermediate Report and,
except as they are consistent with the findings, conclusions, and order
below, finds the exceptions without merit.
Upon the entire record in the' case, the Board makes the following:
FINDINGS OF FAOT
I. THE BUSINESS OF THE RESPONDENT
Hicks Body Company is an Indiana corporation with its place of
business at Lebanon, Indiana. It is engaged in the manufacture of
busses, principally school busses. The principal raw materials used
by the respondent are steel, rubber, leather, composition, insulating
material, and glass. During the 1939 fiscal year the total value of raw
materials used by the respondent amounted to approximately $210,000,
of which 85 per cent represented raw materials obtained from sources
outside the State of Indiana. During the same period sales of finished
products of the respondent amounted to approximately $460,000 in
value, of which approximately 60 per cent represented finished prod-
ucts sold and shipped to purchasers in States other than Indiana. The
respondent concedes that it is engaged in commerce within the mean-
ing of the Act.
HICKS BODY COMPANY
II. THE LABOR ORGANIZATIONS INVOLVED
863
Hicks Employees Union was an unaffiliated labor organization ad-
mitting to membership employees of the respondent.
Federal Labor Union No. 22207 is a labor organization affiliated
with the American Federation of Labor, admitting to membership
employees of the respondent.
Bus Body Builders' Independent Union Local Number 29 is a labor
organization affiliated with the National Federated Independent
Union, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The-discharge of Joseph Harold Bishop
In 1934 Bishop was in the respondent's employ for about 1 week,
and then either quit or was discharged. He reentered the respondent's
employ on July 1, 1936, and, except for two seasonal lay-offs of about
4 months each, was regularly employed by the respondent until his,
discharge on November 10, 1939. At various times during his em-
ployment he held positions as frame assembler, spot welder, punch-
press operator, shear operator, press-brake operator, drill-press oper-
ator, and power-brake operator, and he operated every machine in the
plant except one. His starting wage was 30 cents an hour, and at the
time of his discharge he was receiving 521/2 cents an hour. He had
received five pay increases during his employment, the last two being
the.result of increases granted to the employees generally.
On about October 15, Bishop and several other employees called
on Hugh Gormley, director of organization for the State of Indiana
for the American Federation of Labor, and requested the latter's as-
sistance in organizing the respondent's employees into a union. For
several years previously the respondent had had contractual relations
with the H. E. U.,' of which Bishop was an active member. Gormley
instructed Bishop to have interested employees attend a meeting in
Lebanon, where the respondent's plant was located. Such a meeting,,
arranged by Bishop, was held in the latter part of October 1939 and was
addressed by Gormley. Bishop induced employees to come to the
meeting, distributed handbills in Lebanon, conversed with employees,
at their homes and outside the factory, and solicited memberships. No^
formal organization was attempted at the first meeting, but a date
was chosen for a second meeting. The second meeting, which Bishop
also arranged, was held on the evening of November 9, 1939, and was
attended by approximately 60 employees. At that meeting a charter
application was executed and Bishop was elected temporary president
s As we find below, this organization was company dominated
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the proposed local. His discharge took place the following
morning.
All the respondent's officials who testified denied knowing of
Bishop's union activities. Bishop and John Greene,- a former em-
ployee, testified that during negotiations between Earl Hicks, presi-
dent of the respondent, and the bargaining committee of the H. E. U.,
of which Bishop and Greene were members, Bishop informed Hicks
of his membership in the American Federation of Labor and warned
him that the employees would join that organization if he did not
respond differently to the H. E. U.'s demands. Hicks and several
members of the bargaining committee denied this testimony. The
Trial Examiner, who saw and heard the witnesses, accepted Bishop's
and Greene's testimony. We find that Bishop made the statements
above set forth. In any event, it is uncontradicted that William
Hicks, vice president of the respondent and father of Earl Hicks,
remarked to Bishop and another employee 2 days before Bishop's
discharge :
I suppose you fellows feel pretty big, since you got into this
American Federation of Labor.
Paul Martin, one of the respondent's oldest employees and acting fore-
man in the absence of Taylor, Bishop's regular foreman,6 testified that
approximately 1 week before Bishop's discharge, while he and Taylor
were riding home from work, they had a conversation about Bishop's
union activities. Taylor and he were intimate friends of many
years' standing. Martin testified that Taylor stated, with respect, to
Bishop's union activities,
.' . . that Bishop was on the carpet, that he had orders to watch
him, and he was going to be discharged.
Martin was not cross-examined. Taylor denied making the above
statement. The Trial Examiner, on the basis of his observation of
the witnesses, accepted Martin's testimony as credible and true.
Counsel for the respondent admitted at the oral argument that Taylor
said that Bishop was "on the carpet" but contended that the state-
ment referred to Bishop's work, not to his union activities. We find
that the statement was made, and that it had reference to Bishop's
activities on behalf of the Federal.
Bishop testified that during the several days preceding his.dis-
charge Taylor and Perry, the plant superintendent, observed him
closely while at work, and Perry testified that he "did make it a point
to observe Mr. Bishop's actions" about October 15 or 20, when he
received a complaint about Bishop from Merchant, foreman of the
6 Martin was one of the employees discharged pursuant to the closed-shop contract with
the B. B. B. See Subsection D, infra.
HICKS BODY COMPANY 865
body-assembly department. On the afternoon of November 9, 1939,
about 15 minutes before quitting time, Bishop's helper, Charlie Sheets,
complained to Taylor, their foreman, that Bishop was absent from
their machine. Taylor looked for Bishop and when, a few minutes
later, he found him working at the machine, he engaged Bishop in an
argument. He warned Bishop that he would have to stay on the job
and produce more, to which Bishop replied that he was producing as
much as any other man in the shop. - Taylor answered that, irrespec-
tive of what the other men produced, Bishop had to produce more
t ban he was producing. On the morning of November 10, before com-
mencing work, Bishop went to the toilet in the boiler shop. Finding
it occupied, he went to the one in the assembly department and was
away 8 or 10 minutes. Meanwhile, Superintendent Perry, seeing
Bishop's machine idle, inquired of Taylor where Bishop was. Taylor
testified that he replied that he supposed Bishop had quit, and that he
told Perry of the argument of the previous afternoon. Bishop re-
turned and started his machine, but was told to go and see Perry in
his office. Perry informed Bishop that Taylor reported that Bishop
had been loafing and had been arguing with him. Bishop denied it
and claimed that Taylor had attempted to force him into an argu-
ment. Perry advised Bishop to resign. Bishop testified that Perry
was friendly and that he told him that he knew of his union activities
and "didn't want anything to do with it." Bishop further testified
that he thereupon went to see Earl Hicks, who informed him that
Perry had discharged him; that when he said he had not been dis-
carged, Hicks left the room, stating that he would call Perry; that
shortly thereafter Hicks returned and asserted that Perry said he had
discharged Bishop for loafing on the job; that Bishop protested that
he had received no previous complaints for loafing, and requested
Hicks to reinstate him, but that Hicks refused. At the hearing Hicks
denied having had any conversation with Bishop that day, and Perry,
on cross-examination, testified that he had discharged Bishop him-
self. However, on his direct examination Perry corroborated
Bishop's testimony that he had merely suggested that Bishop resign.
The Trial Examiner, who saw and heard the witnesses, found that
Bishop's account of the conversations was true, and we agree with this
finding. Bishop immediately communicated with Gormley, who
came to the plant that afternoon to protest the discharge.
Bishop was one of the older employees in the plant in point of serv-
ice. The respondent's president and supervisory employees testified
that his work, including special experimental work, was of satis-
fatory quality, and we so find. Moreover, 2 or 3 weeks before his
discharge Bishop was told by Superintendant Perry that he deserved
and "was in line for a raise." Perry did not deny having made such
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11
a statement. In the spring of 1939 a job was available on the power-
brake machine, on which numerous parts used on busses were stamped
out, and which performed an important operation. When the job
was assigned to another man, Bishop protested that he was entitled
to it by virtue of his seniority. He was informed that the other
man was a better producer, but as a result of his protest he replaced
the former operator.
Considerable testimony was adduced by the respondent at the
hearing concerning its contention that Bishop loafed on the job.
Taylor, Bishop's foreman, testified that in the summer of 1939 Bishop
was away from his machine too frequently and was not producing
enough, but that his work improved when the matter was called
to his attention ; that Bishop would frequently go to the toilet im-
mediately after the starting whistle in the morning, and again at
8: 30, implying that he considered this a neglect of duty; that Bishop
unnecessarily visited employees about the shop and that on a few
occasions he saw Bishop unnecessarily going into other departments,
especially the assembly department; that, while he was not certain,
he thought that on one occasion Merchant, foreman of the assembly
department, complained to him that Bishop was interfering with
Merchant's men, and that he thought he spoke to Bishop about this
"alleged violation of the rules"; that a few days before Bishop's dis-
charge, and again on the afternoon preceding the discharge, Sheets,
Bishop's helper, complained that Bishop was absent from his machine
to an excessive extent, and asked that the situation be remedied; that
he did nothing with respect to Sheets' first complaint, because he
"figured maybe it would work out and he would go ahead and pro-
duce"; that on November 9, when Sheets again complained, he spoke
to Bishop, who replied, as stated above, that he felt that he was
producing as much as anyone else in the shop, but that after some
discussion Taylor decided "to let it go and maybe things would
straighten themselves out." Sheets, Bishop's helper, testified that on
the afternoon prior to Bishop's discharge Bishop was absent from
his post "more than the average" ; and that possibly a week or two
before the discharge he warned Bishop that the latter "was going to
fool around until him and me both got fired." The testimony of other
witnesses called by the respondent, most of them supervisory em-
ployees, was to the effect that Bishop was frequently absent from
his machine, which, consequently, was idle; that he would leave the
machine to obtain tobacco or a drink of water "a little more than
most of the fellows in the shop"; that he was seen in other depart-
ments, speaking to employees there, thus keeping them from their
work; that he insisted upon conversing on extraneous matters .with
one supervisory employee who brought him work to do; that Taylor,
HICKS BODY COMPANY 867
his foreman, complained to Superintendent Perry that Bishop spent
too much time away from his job; that Merchant, foreman of the
body-assembly department, stated that his department would have
been better supplied with material if Bishop's machine were kept
working more ; that between October 15 and 20, 1939, Merchant
complained to Taylor and Perry that Bishop's talking kept Mer-
chant's men from their work; and that on one occasion Perry instruc-
ted Taylor to reprimand Bishop. Some of the supervisory employees
admitted that Bishop's duties frequently required his presence in
other departments; that no strict rule prevailed requiring an em-
ployee's constant presence at his machine; that employees might leave
their departments without special permission; that employees pass-
ing from one department to another frequently stopped and con-
versed with 'others; and that when Bishop spoke to employees in
other departments, the foremen did not ask him to desist or instruct
the employees not to speak with him. Hendren, Saulmon, and Ste-
phenson, the only employees named by any of the supervisory em-
ployees as having been spoken to by Bishop, testified that they had
conversations with him about material which he made for them. No
showing was made that records were kept of the output of Bishop's
machine or that investigation was ever made as to whether he was
away from his machine unnecessarily.' Smith, the respondent's per-
sonnel director, admitted that he received no complaints concerning
Bishop's alleged delinquencies until after his discharge. The sole
reason advanced by Superintendent Perry at the hearing, when asked
why Bishop was discharged, was that Bishop did not "get along"
with Foreman Taylor. The testimony as to Bishop's alleged quarrels
with his foreman was less extensive. Perry, questioned as to how
many times Taylor reported that he and Bishop could not get along
satisfactorily, replied, "Oh, I would sty a couple of times that hap-
pened." Taylor testified to only three incidents between him and
Bishop. The first was in the summer of 1939 when he spoke to Bishop
about the fact that Bishop was allegedly not producing sufficiently,
whereupon, according to Taylor, Bishop's work improved. The sec-
ond was the occasion, already referred to, when Bishop complained
of not being transferred to the job on the power-brake machine in
accordance with his seniority rights. The third incident, and the
only one that was in fact a quarrel, was the one which occurred the
evening before Bishop's discharge.
Bishop's alleged failings, as testified to by Perry, Taylor, and the
other foremen and employees, were not, we believe, the reason for his
° Superintendent Perry testified that when seeing a machine idle , whether Bishop's or
another employee ' s, he would ask the foremen the reason , and that the answer would some-
times be satisfactory but at other times unsatisfactory.
450122-42-vol 33--50
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. In this connection we find it noteworthy that he' was not
discharged by the plant superintendent but by Hicks, a fact which
those two individuals attempted to conceal. The good quality of
Bishop's work is undisputed. Moreover, his duties admittedly re-
quired his frequent presence in other departments, and we are con-
vinced, and find, that some of the complaints testified to were
directed to the respondent's method of operation rather than to
Bishop's performance. If Bishop's remissness had been of the pro-
portions alleged by the respondent, the reasons for his absence from
the machine would have been thoroughly investigated and adequate
measures would have been taken to have him and the employees he
was alleged to have disturbed attend to their duties. Taylor's atti-
tude, in doing nothing about Sheets' first complaint, and, with respect
to Sheets' second complaint, in dropping the matter after some dis-
cussion with Bishop, because he "figured maybe it would work out
and he would go ahead and produce," unmistakably indicates that
he did not consider Bishop's alleged neglect either serious or impor-
tant. It was apparently customary for employees to go from one
department to another. If the respondent had not been motivated
by considerations extraneous to efficiency, Bishop, on the basis of
his 3 years' service, would in all probability have received some
warning that failure to improve would result in his discharged8
Prior to the incident of his discharge, however, he never received
such warning or, indeed, except for one or two occasions, so much
as a mild reprimand. It will be noted, too, that the respondent
recognized Bishop's claim to the job on the power-brake machine on
the basis of his seniority, a claim clearly untenable under the then
subsisting contract if the respondent's present contention with respect
to Bishop's conduct had substantial foundation.9 Moreover, shortly
prior to his discharge Perry told Bishop that he "was in line for a
raise."
It is plain from Taylor's statement to the effect that Bishop was
being watched and would be discharged, that the respondent intended
to discharge him because of his union activities, but was seeking an
apparently legitimate pretext. Bill Hicks' remark, quoted above,
and Perry's statement to Bishop that he knew of the latter' s union
activities also showed clearly the respondent's antagonism towards
8 See Montgomery Ward & Co., Inc v N. L R B, 107 F. (2d) 555 (C. C. A. 7), enforcing,
as modified, Matter of Montgomery Ward & Company and Reuben Litzenberger, et at.,
9 N L R B 538, where the Court said at page 501: ". . although long service' does not
necessarily indicate efficiency, it does indicate that the employee's work is not considered
so unsatisfactory as to merit discharge "
8 The contract in effect at that time between the respondent and the H It. U. provided as
follows : "In order to hold any seniority rights a man must conduct himself in a cooperat-
ing manner, at all times, complying with all rules and regulations of the factory, and
cooperating to the fullest extent with supervisors of departments"
HICKS BODY COMPANY 869
employees who assisted the Federal. Having in mind these state-
ments, the fact that Bishop had rendered satisfactory services for
over 3 years, and the insubstantial character of the respondent's
asserted reasons for his discharge, we are of the opinion, and find,
as did the Trial Examiner, that his discharge soon after he com-
menced activities on behalf of the Federal, and the very morning
following his election as its temporary president, was caused by his
union activities.
We find that the respondent has discouraged membership in the Fed-
eral by discrimination in regard to the hire and tenure of employment
of Joseph Harold Bishop, and that the respondent has thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
B. The H. E. U.
On or about June 1, 1937, the H. E. U. was organized in the respond-
ent's plant. The H. E. U. entered into three contracts with the re-
spondent, on July 1:5, 1937, January 20, 1938, and January 26, 1939,
respectively. The two latter contracts provided for a closed shop.10
At the hearing, it was stipulated as follows :
The Respondent, the Labor Board, the Intervener, Bus Body
Builders, Local No. 29, and the A. F. of L. Union, represented by
Mr. Pryor, and myself," stipulate to the following :
That the Board has witnesses, 'the testimony of which would
tend to prove that persons. representing the Hicks Body Com-
pany aided in the organization of the Hicks Employees Union, and
for the purposes of this case Respondent admits that said Union
was company dominated at the time of its organization.
It is further stipulated.that E. C. Gullion, Attorney of Lebanon,
Indiana, was counsel for the Hicks Employees Union at the time
of its organization, and continued to act as such counsel during
the existence of the Hicks Employees Union, and as such 'attorney
participated in the early organization of the Hicks Employees
Union, such as participating in meetings and drafting the articles
.of association, constitution and by-laws.
The Board's attorney stipulates that he has no evidence which
would show any assistance given B. B. B. by any officer or super-
visory employee of Hicks Body Company, except on the theory
of the successorship of Bus Body Builders Union to Hicks Em-
ployees Union.
"'The first contract provided : "Section 6: The Company agrees to grant the Union's
request regarding `closed shop ' and `closed shop' is to be defined as being ninety percent of
the employees now working except executives."
11 Counsel for the Board.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the parties to this hearing agree that the issue before the
Board is whether or not Bus Body Builders Union Local No. 29 is
a company dominated Union in violation of the National Labor
Relations Act, and the issue is as follows :
One, the Board and the A. F. of L. contend that the Bus Body
Builders Independent Union No. 29, is the successor of Hicks Em-
ployees Union and thus a company dominated Union ;
Two, Respondent and the Bus Body Builders Independent
Union, Local No. 29, claim no successorship, and that Bus Body
Builders Independent Union, Local 29, is not a company domi-
nated Union in violation of the Act so that it should be disestab-
lished.
* * *
MR. PARR [counsel for the respondent ] : The Respondent
makes this stipulation to the effect of settlement of the issues as to
company domination of Hicks Employees Union. Respondent
has denied and does now expressly deny said charges and states
that it has evidence presenting a meritorious defense, but that it
chooses this manner of settling this issue on the express agree-
ment of the parties to the stipulation that no inference shall be
drawn from the stipulation beyond its terms.
Respondent does hereby consent, insofar as it is involved, to
any proper order or, decree disestablishing Hicks Employees
Union.
Upon the basis of the facts set forth in this stipulation , we find that
the respondent dominated and interfered with the formation and ad-
ministration of the H. E. U. and contributed to its support. We
further find that the respondent thereby interfered with, restrained,
and coerced is employees in the exercise of the rights guaranteed
in Section 7 of the Act.
It was stipulated at the hearing that the H. E. U. was no longer
in existence.
C. The B. B. B.
1. Chronology of events
On December 28, 1939, the Federal, in a letter to the respondent,
claimed to represent a majority of the respondent's employees and re-
quested a conference for collective bargaining. The respondent re-
plied on January 4, 1940, informing the Federal that the H. E. U. had
made a similar claim and request, and stating:
It is our desire to enter into negotiations with the proper
representatives, but as you know, if we attempt to decide who
the proper representatives may be it is at the risk of later
learning that we have made a mistake.
HICKS BODY COMPANY 871
In this situation we believe the fairest method to determine
this preliminary question would be to submit this matter in-
formally to the National Labor Relations Board for the pur-
pose of having that board determine for all parties what organ-
ization represents the majority of our employees at this time.
On January 15, 1940, the H. E. U. filed the petition in the represen-
tation- proceeding already referred to. The respondent's final con-
tract with the H. E. U. expired on January 20, 1940, and thereafter
it made no further contract with that organization. On May 16,
1940, the Board held the election above referred to,12 which the
H. E. U. won, but on which no subsequent action was taken because
of the objection and charges filed by the Federal?'
In about February 1940 Frederick Striker Galloway, president of
the National Federated Independent Union, herein called the
N. F. I. U., being anxious to secure the-H. E. U.'s affiliation with the
N. F. I. U., visited Gullion, the H. E. U.'s attorney, to discuss with
him the N. F. I. U. Gullion replied that he did not want the
H. E. U. to become affiliated with any organization at that time.
On July 2, 1940, Galloway again visited Gullion. He persuaded
Gullion that the H. E. U. "couldn't stand up with its present set
up," and Gullion agreed to Galloway's request to be allowed to talk
to the leaders of the organization. Galloway returned to Gullion's
office on July 6 and was there introduced by Gullion to seven officers
of the H. E. U. Gullion advised the seven officers that "it would be
wise for them" to affiliate with the N. F. I. U. after the pending elec-
tion proceeding was disposed of and suggested that they hale Gallo-
way assist them. Galloway then addressed the seven men briefly.
The gathering made arrangements for a second meeting, which was
held on July 10 and was attended by about 15 employees. Gullion
again introduced Galloway, who told the officers of the H. E. U.
"how they could become affiliated with the N. F. I. U." A third
meeting, held July 12, apparently pursuant to arrangements made
at the second meeting, was attended by about 30 or 35 employees
and was also addressed by Gullion, who announced that he wished to
withdraw from further activity, that he felt that Galloway knew
more about "this particular question" than he, and that he would
like "the folks" to follow Galloway and become affiliated with the
N. F. I. U. Gullion testified that he contemplated that the H. E. U.
would not be dissolved, but that the same entity, possibly under a
new name, would be affiliated with the N. F. I. U. Applications for
membership in the N. F. I. U. were signed by employees at the third
meeting. Also at that meeting, or possibly the next, the officers of
12 See footnote 3, supra
18 The original charge, which alleged domination of the IT. E U, was filed by the Federal
on June 10, 1940
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the H. E. U. signed an application for a charter from the N. F. I. U.,
which was issued on July 19, 1940, in the name of the B. B. B.
Galloway had previously suggested that the name Hicks Employees
Union be so changed because the presence of the name Hicks "might
show it was more of a company-dominated union." Except for the
meeting of July 2 in Gullion's office, all the meetings were held in
the hall occupied by the H. E. U. The H. E. U. paid the rent of the
hall at least up to the end of July 1940, after which the rent was
paid by the B. B. B., and the H. E. U.'s name remained painted on
the windows until late in August. Gullion, whose offices were across
the corridor from the hall, frequently walked in and out of the
B. B. B. meetings. At least one employee who -testified did not have
clearly in mind whether the meetings he was attending were of the
H. E. U. or the B. B. B.
In July 1940 a committee elected by the B. B. B. commenced
work on drafting its bylaws, which were subsequently adopted. In
July or the first part of August 1940 officers were elected. With the
exception of Caplinger, who was treasurer of both the H. E. U. and
the B. B. B., none of the officers or committee members had ever
held office in the H. E. U.
Galloway insisted that the H. E. U. pay Gullion any sum owing him
before attempting to affiliate with the N. F. I. U. He testified that
he thought it possible that Gullion might sue the new organization
for a debt incurred by the H. E. U. Thereafter, Gullion presented a
bill to the H. E. U. for $50, which it paid on or about August 10, 1940.
On August 16, 1940, Caplinger, who at the time was treasurer of both
organizations, transferred the entire treasury of the H. E. U., amount-
ing to $237.13, to the B. B. B. This was pursuant to a vote taken at
an informal meeting of a number of employees who still had voting
rights in the H. E. U. The H. E. U. continued in existence for sev-
eral weeks after the B. B. B. was organized, but eventually, without
formal dissolution, it ceased all activity. All its officers joined the
B. B. B.
On July 15, 1940, Galloway and a committee of employees called
upon the respondent and stated that,"they were forming a union."
The respondent thereupon "promised" that the foremen would be in-
structed "not to have anything to do with it," and at a meeting the
next day the foremen were instructed to prevent organizational activ-
ity on company time and to remain aloof from such activity. On
July 19, 1940, the day the B. B. B. charter was issued, Galloway wrote
to the respondent stating that a majority of the respondent's em-
ployees-had affiliated with the N. F. I. U. and requesting a bargaining
conference. On July 24 Galloway and a committee of the B. B. B. met
with Hicks and other officials of the respondent. Upon demand by
the respondent for proof of majority, the parties agreed, at the sug-
HICKS BODY COMPANY 873
gestion of a committee member, that Heflin, an accountant, check
the organization's application cards against the respondent's most
recent pay roll. That same day, after comparing the names on the
application cards with those on the pay roll, Heflin notified the re-
spondent orally that the B. B. B. had been designated by a majority
of the production and maintenance employees. No check was made
of the authenticity of the signatures.14
On the same day the respondent informed the Regional Director of
the claims and demands made by the B. B. B. and stated ". . . that
respondent's necessity for securing some settlement of labor difficulties
and for getting into production and filling its orders was so great
that if some action were not taken to determine the situation in one
way or another, the Company would suffer a ruinous loss." The
Regional Director replied "that there was nothing he could advise or
any assistance he could render to the respondent" but that the respond-
ent should not bargain with the B. B. B. "except on the exercise of
great care as to determining majority." The Regional Director sug-
gested that if the respondent did bargain with the organization, the
Federal and the H. E. U. should be notified. - The respondent forth-
with notified the H. E. U. by letter of its intention to negotiate with
and if possible execute a contract with the B. B. B. and stated that
any objections on the part of the H. E. U. should be made at once.
On July 25 the respondent notified Gormley, of the Federal, by tele-
gram that it proposed to negotiate and execute a contract with the
B. B. B. On July 25 Heflin filed a formal statement under oath cer-
tifying that 137 of the respondent's 233 non-supervisory production
and maintenance employees had signed application cards for mem-
bership in the B. B. B. The cost of Heflin's services was borne equally
by the B. B. B. and the respondent. On July 26 Gullioli, on behalf
of the H. E. U., wrote to the respondent objecting to its proposed
action.
Negotiations between the respondent and the B. B. B. for .a col-
lective labor agreement had already commenced on July 24 and they
continued daily until their completion on July 27. On Sunday, July
28, 1940, the respondent and the B. B. B. executed a contract recog-
nizing the B. B. B. as the exclusive bargaining representative of all
production and maintenance employees excluding office and, super-
visory employees, and providing, among other things, for a closed
shop. The effective date of the contract was July 31, 1940, and it
provided that it would remain in effect until January 1, 1941. The
respondent asked the B. B. B. to postpone the application of the
closed-shop provisions and, upon request by the Regional Director, a
u The parties and counsel for the Board stipulated :
. . . that the signatures of the employees were not compared with any signature regis-
ter of the Company for the reason that the Company had no signature register."
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
postponement until August 31, 1940, was granted.15 Further post-
ponement, requested by the respondent and' the Regional Director,
was refused by the B. B. B. The contract was put into effect and, as
stated below, 12 employees who refused to join the B. B. B. were dis-
charged pursuant thereto. On January 7, 1941, the respondent and
the B. B. B. entered into a second contract, effective until December
31, 1941, and, in the absence of 30 days' notice by one of the parties,
each year thereafter, also providing for exclusive recognition and
for a closed shop. This contract provided in addition for increases
in pay for many employees.
2. Conclusions regarding the B. B. B.
We have found that the respondent dominated and interfered with
the formation and administration of the H. E. U. and contributed
to its support, and that the IT. E. U., in turn, through its attorney
and officers, and some of its members, initiated, formed, and pro-
moted the B. B. B. In their discussions which led finally to the
formation of the B. B. B., both Galloway and Gullion indicated that
they were seeking to bring about the affiliation of the H. E. U.
with the N. F. I. U., thereby preserving the former' s existence.
Galloway insisted that the H. E. U.'s debt to Gullion be cleared
prior to its affiliation with the N. F. I. U., lest suit therefor be
brought against the B. B. B., and members of the B. B. B. desired
to use the name of their old organization until dissuaded by Gal-
loway for reasons of policy. The H. E. U. permitted the B. B. B.
to conduct its activities, including those both prior and subsequent
to its chartering, in the H. E. U.'s headquarters, at the same, time
keeping its own name on the window. After the B. B. B. was
formed, the H. E. U. transferred its entire treasury to the new
organization, and then it ceased all activity without, however, for-
mally or definitely dissolving. The respondent at no time dises-
tablished the H. E. U., and it did nothing "to mark the separation
between the two [organizations], and publicly to deprive the suc-
cessor of the advantage of its apparently continued favor." 16 On
15 The respondent posted the following notice : "Notice to all employees . Acting upon
the request of Robert H. Cowdrill , Regional Director of the National Labor Relations Board,
you are hereby notified that by agreement of the parties the time within which the em-
ployes of this Company shall join the Bus Body Builders Local # 29 of the National Feder-
ated Independent Union has been extended to 6 . 00 F. M, Saturday , August 31, 1940
This agreement modifies the provisions of Article 3 of the contract signed under date of
July 27, 1940 Hicks Body Co , Inc " The Regional Director informed all parties that
the action taken by him in connection with extension of the closed -shop provision of the
contract was not to be regarded as an approval or disapproval of the B B B with respect
to the question of whether or not it Ivas company dominated
10Westtinghouse Electric & Manufacturing Co v. N L. R . B, 112 F. ( 2d) 657 ( C C. A. 2),
affirmed 312 U. S 660 , March 10 , 1941 , 8 L. R. R 76 , enforcing as modified Matter of
Westinghouse Electric & Manufacturing Company and United Electrical , Radio & Machine
IVorkers of America , Local #410 , 18 N. L R. B. 300. -
HICKS BODY COMPANY 875
the contrary, it permitted the employees to continue under the im-
pression, produced by its' earlier conduct, that it disapproved the
Federal, and that it approved the H. E. U. and, consequently, its
successor, the B. B. B. It allowed the H. E. U. to maintain its
existence while the B. B. B.'s organization was being completed,
thus effectively forestalling progress among the employees by bona
fide labor organizations. Under these circumstances -we find that
the B. B. B.' arose out 'of and was the successor of the H. E. U.,
and that the respondent caused the initatioii and formation of the
B. B. B. The H. E. U., having been organized with the respond-
ent's aid and having been company dominated at, the), time of its
organization, as stated in the stipulation of the parties, must be
deemed, in the absence of evidence to the contrary, to have con-
tinued to be company dominated throughout its life. The respond-
ent and the B. B. B. contend that this finding may not be made
in view of the parties' agreement that no inference should' be drawn
from the stipulation beyond its terms. The finding, however, is
,within the terms of the stipulation, since an organization formed
with an employer's aid and company dominated at the time of its
formation must necessarily continue to be company dominated until
adequate measures are taken to free it from that characteristic.
Moreover, the record shows that the parties so understood the stipu-
lation. At, the hearing counsel for the respondent and for the
Association objected to evidence of enforcement of the H. E. U.'s
closed-shop contracts "during the period of 1937 to 1939," on the
ground that the course of conduct sought to be shown was covered
by the stipulation, and that it would prolong the hearing unduly to
"bring in all of the circumstances that are expressly covered by the
stipulation." The Trial Examiner sustained the objection, stating,
"It is stipulated that that was a dominated union." Furthermore,
the respondent's consent to "any proper order or decree disestab-
lishing" the H. E. U. is a clear indication that the parties under-
stood that the organization was to be deemed to be company
dominated throughout its existence. Inasmuch as the respondent's
domination of the H. E. U. still prevailed when it was succeeded
by the B. B. B., the employees' acceptance of the B. B. B. was not
free and voluntary but was the result of the respondent's domination
and interference with the formation and administration of the
H. E. U. and the other circumstances set forth above.
The respondent rendered the B. B. B. further assistance. In
response to the Federal's demand for recognition, it had in January
1940 declined to attempt to determine the employees' proper repre-
sentatives because of the risk of learning subsequently that it had
erred, and had suggested that the determination be made by the
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board. The B. B. B., on the other hand, received immediate recogni-
tion on the basis of a check of membership application cards by a
private individual suggested by one of the B. B. B.'s representatives,
and without investigation of the authenticity of the signatures.
Moreover, within 4 days the respondent granted the new organiza-
tion an advantageous contract, including a provision for a closed
shop. Such action, unusual under any circumstances, was especially
significant, since taken in the face of election results showing that of 189
eligible employees at least 85 favored the H. E. U. and at least 78 fa-
vored the Federal. The respondent alleges that it complied with the
demands of the B. B. B. because of strike threats. The evidence as to
the alleged threats is extremely vague and unconvincing. Moreover,
the allegedly harsh attitude of the B. B. B. bargaining committee
would have been sharply at variance with the principles of the
N. F. I. U., which emphasize the organization's desire for peaceful
settlement of disputes and for the use of strikes only as a last resort."
The respondent made no serious effort to have the B. B. B. withhold
its alleged threatened strike until the question of representation could
be satisfactorily settled. We are convinced, and we find, as did the
Trial Examiner, that any strike threat which was made was not of a
serious nature. We find that the respondent's immediate recognition
of the B. B. B. and its hasty granting of a closed-shop contract con-
stituted support of the B. B. B.
Apart from the question of the haste with which the contract was
entered into, its execution in itself constituted unlawful assistance
and support of the B. B. B. Since the membership of that organiza-
tion resulted from the assistance and coercive acts of the respondent,
the B. B. B. was at no time designated by an uncoerced majority of
the respondent's employees as their representative for collective bar-
gaining. The grant to the B. B. B. in the contract of July 28, 1940,
as well as in that of January 7, 1941, of the right exclusively to repre-
sent all the employees and of the provisions for a closed shop thus
gave it unearned prestige among the employees and placed in its hands
an effective means of compelling the employees to become members.18
At the hearing the Trial Examiner rejected an offer by the B. B. B.
to prove that every member of the B. B. B., constituting a majority
of the respondent's employees, if called to the stand, would testify that
"The constitution of the N. F I. U states :
We believe that all grievances arising in industry should be adjusted in a peaceful
and orderly manner
We believe in the right to strike , but shall exercise this right only as a last resort
The official maeazine of the N. F. I. U. laid considerable stress upon the undesirability and
futility of strikes.
1' Matter of Illinois Electric Porcelain Company and Illinois Electric Porcelain Workers
of Macomb , Federal Labor Union No 31787 , etc, 31 N. L R B 101, page 27 ; Matter
of Jensen Radio Manufacturing Company and United Electrical , Radio if Machine Work-
.e; s of America, etc., 27 N . L R B 813
HICKS BODY COMPANY 877
he joined and remained a member of the B. B. B. of, his own free will,
that each employee of the respondent preferred to belong to the
B. B. B. rather than any other labor organization, and that the B. B. B.
was his free choice of a bargaining agency. This evidence was im-
material and was properly excluded.19 Subsequent to the hearing
the respondent filed the petition, referred to above,20 that a certain
resolution of the B. B. B. be made part of the record or that the
record be opened for its admission in evidence. The resolution, which
allegedly was adopted by the membership of the B. B. B. on or
about April 14, 1941, and was served on the respondent on April 15,
1941, was to the effect that the B. B. B. demand that the labor agree-
ment "now in effect" remain in effect until its expiration; that the
B. B. B. not permit the reinstatement of any employee dismissed as
a result of the closed'shop contract, or of "any employee involved in
this controversy," until such employees have affiliated themselves with
the N. F. I. U.; and that the respondent be notified that the B. B. B.
would enforce the agreement in effect. This evidence is likewise im-
material and we have, therefore, denied the respondent's motion.
The respondent contends that its motion to dismiss the complaint
with respect to the H. E. U. should have been granted on the ground
that the Federal participated in an election with that organization
and filed no charge until after the Election Report had been issued.
The respondent further contends that the allegations of the complaint
with respect to the B. B. B. must likewise fall, stating :
Participation in the election without a charge of company-dom-
ination purged H. E. U. of any taint of company-domination
and if the Board is to argue that B. B. B. is the heir of H. E. U.
it must accept the established fact that it inherited the status of
a union cleared of any charge of company-domination by reason
of its acceptance by a rival union as an adversary in an open
election.
These contentions are without merit, and we have affirmed the Trial
Examiner's ruling denying the said motion.21 The representation
proceeding did not involve the question of unfair labor practices.
Accordingly, since the present issues have not previously been de-
termined by the Board, the H. E. U. has at no time been cleared of
the charge of being company dominated. On the contrary, as stated
11 See N. L. R . B. v. Newport News Shipbuilding & Dry Dock Co , 308 U S 241 , reversing
modification of Board's order in 101 F. (2d) 841 (C. C. A. 4), enforcing , as modified, Mat-
ter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine
and Shipbuilding Workers of America, 8 N. L. R. B. 866; Bethlehem Steel Company, et at
v. N. L. R. B., decided May 12, 1941 (App. D. C.), enforcing Matter of Bethlehem Steel
Corporation , etc. and Steel Workers Organizing Committee, 14 N. L R B. 539.
See Statement of the Case , supra.
z1 See Statement of the Case, supra.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, the respondent, by consenting to the disestablishment of the
H. E. U., at least for the purposes of this case, recognized its
company-dominated character. Moreover, nothing in the Act bars
the entertaining of such charges when filed subsequent to an elec-
tion.22
We find that the respondent has dominated and interfered with
the formation and administration of the B. B. B. and has contributed
to its support, and that the respondent has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.23
We further find that, since the contracts of July 28, 1940, and of
January 7, 1941, were made with a labor organization established,
maintained, and assisted by unfair labor practices, the provisions for
a closed shop contained therein do not fall within the proviso of
Section 8 (3) of the Act and are illegal and void. We further find
that by entering into the said contracts the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section, 7 of the Act.
D. The discharges pwrsuant to the closed-shop contract
The parties stipulated at the hearing that 12 of the employees
named in the complaint as amended, namely, Earl Smith, Robert
22 See N L R B v McKesson & Robbins, Inc, etc, decided May 5 , 1941 ( App. D. C.),
8 L R R . 383, enforcing as modified Matter of McKesson & Robbins, Inc ., etc. and Inter-
national Longshoremen & Warehousemen 's Union, Local No 9, District 1, a Uiated with .-
the C. 1 0 , 19 N. L R. B 778 , Matter of Interlake Iron Corporation , a corporation and
Local Union No. 1657, Steel Workers Organizing Committee , decided July 21, 1941, 33
N. L R. B. 613. In the former case the Court said : ". . . the result of an election is not
always conclusive on the Board as to certification. It may disregard the results of an
election ; at any rate prior to certification if not also afterward , as it may those of any
other method of ascertaining the majority, when it appears in proper proceedings that it
has been affected by unfair practices "
21 See Westinghouse Electric & Manufacturing Co v N. L R B , 112 F. (2d) 657
(C. C. A 2), affirmed , 312 U S 660 , March 10, 1941, 8 L R R 76 , enforcing as modified
Matter of Westinghouse Electric & Manufacturing Company and United Electrical , Radio &
Machine Workers of America , Local .#410, 18 N. L. R . B 300, where the Court, in comment-
ing upon the decision in National Labor Relations Board v . Newport News Shipbuilding &
Dry Dock Company, 308 U. S 241 , stated, 112 F. (2d) 660: " . . although the new union
would be lawful , if freely formed, it had in fact arisen out of the earlier organization, and
the company had done nothing to mark the separation between the two, and publicly to
deprive the successor of the advantage of its apparently continued favor . It is true that
in that case there was somewhat less separation between the old and the new than in the
case at bar ; the union was in form merely a 'revision ' of the earlier ' Plan,' and its consti-
tution had been prepared in part at any rate , by executives of the company . But that was
not the eircunistance which counted, as we understand it; it was rather that the employees
at large had not been advised that the company was wholly indifferent whether they joined
the new union , and that , as it might , and probably did, appear to be a successor of the old;
the separation should have been made plain , and with it the discontinuance of any con-
tinued countenance from the employer . The theory is that in cases such as this, where an
unaffiliated union seems to the employees at large to have evolved out of an earlier joint
organization of employer and employees , the Board may take it as datum, in the absence
of satisfactory evidence to the contrary , that the employees will suppose that the company
approves the new, as it did the old , and that their choice is for that reason not as free as
the statute demands."
HICKS BODY COMPANY 879
Marsh, O. W. Eastridge, Oscar Lane, John Scott, Don Baldwin,
Fred Flinn, J. E. Day, Lorenzo Dougherty, Norval Frich, Paul Ma:-
tin, and Forest Dougherty, Jr., were discharged on August 31, 1940,
solely because of the closed-shop provision in the contract of July
28, 1940, between the respondent and the B. B. B., of which they
were not members., Since, as we have found above, the contract does
not fall within the proviso clause of Section 8 (3) of the Act, that
clause does not excuse the discharges, which were, therefore, clearly
discriminatory.
We find that the respondent has discouraged membership in the
Federal by discrimination in regard to the hire and tenure of em-
ployment of Earl Smith, Robert Marsh, O. W. Eastridge, Oscar
Lane, John Scott, Don Baldwin, Fred Flinn, J. E. Day, Lorenzo
Dougherty, Norval Frich, Paul Martin, and Forest Dougherty, Jr.,
and that the respondent has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close,` intimate, and
substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom, and
to take certain affirmative action which we find will effectuate the
policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the H. E. U. and the B. B. B. and
contributed to their support. The effects and consequences of said
domination, interference, and support render the H. E. U. and the
B. B. B. incapable of serving the respondent's employees as genuine
collective bargaining agencies. We find that the recognition of the
H. E. U. or the B. B. B. as the bargaining representative for any of the
respondent's employees constitutes a continuing obstacle to the free
exercise by the employees of their right to self-organization and to
bargain collectively through representatives of their own choosing.
Inasmuch as the H. E. U. is no longer in existence, it is not necessary
to order its disestablishment. Since, however, it may be revived, we
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall order the respondent to withhold recognition from the H. E. U.
as the representative of any of its employees for the purposes of dealing
with its concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment. We shall
also order that the respondent disestablish and withdraw all
recognition from the B. B. B. as the representative of any of its em-
ployees for the purposes of dealing with it concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment.22.,
The contracts entered into between the respondent and the B. B. B.
were invalid, since they were a means whereby the respondent utilized
an employer-dominated labor organization to frustrate self-organiza-
tion and to defeat collective bargaining by its employees. Moreover,
they provided for exclusive recognition of the B. B. B. and made mem-
bership therein a condition of employment in the respondent's plant,
although at the time the contracts were made that organization had
not been designated by an uncoerced majority of the employees covered
by the contracts as their representative for the purposes of collective
bargaining. Under these circumstances, the enforcement of said con-
tracts or of any extension, renewal, or modification thereof, and the
enforcement of any other contract with the company-dominated
B. B. B., would perpetuate the conditions which have deprived em-
ployees of the rights guaranteed to them in the Act, and would render
other portions of our Order ineffectual to remedy the respondent's un-
fair labor practices. We therefore find it necessary, in order to effec-
tuate the policies of the Act, that the respondent cease giving effect to
the contracts of July 28, 1940, and January 7, 1941, between it and the
B. B. B., to any modification, renewal, or extension thereof, and to any
other agreements, arrangements, or understandings with the B. B. B.,
and we shall so order. Nothing in our Order, however, shall be deemed
to require the respondent to vary or abandon the wage rates or other
substantive features of its relations with its employees established in
2+N. L. R. B. v Newport News Shipbuilding & Dry Dock Co., 308 U. S. 214, reversing
modification of Board's order in 101 F (2d) 841 (C. C. A. 4), enforcing , as modified, Mat-
ter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine
and Shipbuilding Workers of America, 8 N L. R B 866; N. L. R. B. v. Palk Corp., 308
U. S 453, reversing modification of Board's order in 106 F (2d) 454, modifying 102 F
(2d) 383 (C. C. A 7), enforcing Matter of The Falk Corporation and Amalgamated Asso- .
elation of Iron, Steel and Tin Workers of North Armerica, Lodge 1528, 6 N. L. R. B. 654 ;
N L. R. B. v. Pennsylvania Greyhound Lines, Inc., et at, 303 U S. 261, reversing modifica-
tion of Board 's order in 91 F (2d) 178 (C. C A. 3), enforcing as modified Matter of
Pennsylvania Greyhound Lines, Inc, et at and Local Division No. 1063 of the Amalgam-
ated Association of Street, Electric Railway and Motor Coach Employees of America,
1 N. L. It. B. 1; Westinghouse Electric & Manufacturing Company v. N L. R B, 112 F
(2d) 657 (C. C A. 2), enforcing as modified Matter of Westinghouse Plectric & Manufac-
turing Company and United Electrical, Radio & Machine Workers of America, Local No.
418, 18 N. L. R B 300 , affirmed ( per curiam ) 312 U S 660
HICKS, BODY COMPANY 881
performance of such contracts, arrangements, or understandings, or
any modification, renewal, or extension thereof.25
We have found that the respondent discriminated against Joseph
Harold Bishop, Earl Smith, Robert March, O. W. Eastridge, Oscar
Lane, John Scott, Don Baldwin, Fred Flinn, J. E. Day, Lorenzo
Dougherty, Norval Frich, Paul Martin, and Forest Dougherty, Jr.,
by discharging them. We shall order the respondent to offer to each
of these employees immediate and full' reinstatement to his former
position, or to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges. We shall further order
the respondent to make these employees whole for any loss they have
suffered by reason of the discrimination against them, by payment to
each of them of a sum of money equal to the amount which, he would
normally have earned as wages from the date of the discrimination
against him to the date of the offer of reinstatement, less his net earn-
ings 26 during such period.
VI. THE REPRESENTATION PROCEEDING
Since the H. E. U., which won the election, was company dominated
and has ceased to exist, it has no interest in the representation pro
ceeding and cannot be certified. The Federal obviously cannot be
certified on the basis of the election, since it was not chosen by a ma-
jority of the employees participating, and for this reason we have
denied its motion for certification.27 We shall therefore order that
the election be set aside. In view of the time which has elapsed and
the events which have occurred since the filing of the petition, more-
over, we shall dismiss the petition, such. dismissal to be without preju-
dice to the Federal's right to file its own petition if it so desires.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board hereby makes the following::
CONCLUSIONS OF LAW
1. Hicks Employees Union was a labor organization, and Federal
Labor Union No. 22207, affiliated with the American Federation of
25 Matter of Wm. Tehel Bottling Company, etc and International Brotherhood of Team-
sters , Chauffeurs, Stablemen and Helpers, Local 338, etc, 30 N L. R B 440, page 14;
Matter of International Harvester Company, a corporation and Farm Equipment Workers
Organirung. Committee and ano , 29 N L. R B 456, page 57.
25 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 Amer-
ica, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. It. B. 440. Monies received
for work performed upon Federal , State, county, municipal , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U S. 7
21 See Statement of the Case, supra
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor, and Bus Body Builders' Independent Union Local Number 29
are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. By dominating and interfering with the formation and admin-
istration of the H. E. U. and of the B. B. B., and by contributing to
their support, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Joseph Harold Bishop, Earl Smith, Robert Marsh, O. W.
Eastridge, Oscar Lane, John Scott, Don Baldwin, Fred Flinn,
J. E. Day, Lorenzo Dougherty, Norval Frich, Paul Martin, and
Forest Dougherty, Jr., and thereby discouraging membership in a
labor organization, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of their rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Hicks Body Company, Lebanon, Indiana, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Hicks
Employees Union or of Bus Body Builders' Independent Union Local
Number 29, or with the formation or administration of any other
labor organization of its employees, and from contributing financial
or other support to Bus Body Builders' Independent Union Local
Number 29 or any other labor organization of its employees;
(b) Recognizing or in any manner dealing with Hicks. Employees
Union or with Bus Body Builders' Independent Union Local Num-
ber 29 as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor dis-
putes, rates of pay, hours of employment, or other conditions of
employment ;
(c) Giving effect to the contract of July 28, 1940, or to the contract
'of January 7, 1941, with said B. B. B., or to any extension or renewal
HICKS BODY COMPANY 883
thereof, or to any other agreements, understandings, or arrange-
ments entered into with said B. B. B.;
(d) Discouraging membership in Federal Labor Union No. 22207,.
affiliated with the American Federation of Labor, or any other labor
organization of its employees, by discriminating in regard to hire or
tenure of employment, or any term or condition of employment--
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the' purposes of collective bargaining, or other mutual aid
and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withhold all recognition from Hicks Employees Union as the
representative of any of its employees for the purposes of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
wages, hours of employment, or other conditions of employment;
(b) Withdraw all recognition from Bus Body Builders' Independent
Union Local Number 29 as the representative of any of its employees
for the purposes of dealing with the respondent concerning grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and completely disestablish Bus Body
Builders' Independent Union Local Number 29 as such representative;
(c) Offer to Joseph Harold Bishop, Earl Smith, Robert Marsh, O. W.
Eastridge, Oscar Lane, John Scott, Don Baldwin, Fred Flinn, J. E.
Day, Lorenzo Dougherty, Norval Frich, Paul Martin, and Forest
Dougherty, Jr., and to each of them, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges ;
(d) Make whole Joseph Harold Bishop, Earl Smith, Robert Marsh,
O. W. Eastridge, Oscar Lane, John Scott, Don Baldwin, Fred Flinn,
J. E. Day, Lorenzo Dougherty, Norval Frich, Paul Martin, and Forest
Dougherty, Jr., and each of them, for,any loss of pay they have suf-
fered by reason of their discharge, by payment to each of them of a
sum of money equal to that which lie normally would have earned as
wages from the date of his discharge to the offer of reinstatement, less
his net earnings 28 during said period;
(e) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the date
of posting, notices to its employees stating (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist
28 See footnote 26, supra.
450122-42-vol 33--57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in paragraphs 1 (a) to (e), inclusive, of this Order; (2) that the re-
spondent will take all affirmative action set forth in paragraphs 2 (a)
to (d), inclusive, of this Order; (3) that the respondent's employees are
not required to become or remain members of Bus Body Builders'
Independent Union Local Number 29; and (4) that the respondent's
employees are free to become and remain members of Federal Labor
Union No. 22207, affiliated with the American Federation of Labor,
and the respondent will not discriminate against any employee because
of membership in or activity on behalf of that organization;
(f) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the election held on May 16, 1940, be,
and it hereby is, vacated and set aside.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives of employees of Hicks Body Company,
Lebanon, Indiana, filed by Hicks Employees Union, on January 15,1940,
be, and it hereby is, dismissed.