Link-Belt Co.

National Labor Relations Board - Board Decisions

Aug 7, 1940

26 N.L.R.B. 227 (N.L.R.B. 1940)

In the Matter of LINK-BELT COMPANY (DODGE PLANT) and AMALGA-
MATED ASSOCIATION, IRON, STEEL & TIN WORKERS LOCAL UNION
No. 1150, AFFILIATED WITH THE C. I. 0.
In the Matter of LINK-BELT COMPANY (EWART PLANT) and AMALGA-
MATED ASSOCIATION, IRON, STEEL & TIN WORKERS LOCAL UNION
No. 2028, AFFILIATED WITH THE C. I. 0..
Cases Nos. C-1510 and C-1511.-Decided August 7, 1940
Jurisdiction : transmission belt manufacturing industry.
Unfair Labor Practices
Company-Dominated Union. initiation of, at final meeting of Employees Board,
an organization formed and dominated by the respondent-employer's participa-
tion through its agent in administration of-employer's contribution of support
to: furnishing meeting places; permitting employees to engage in union ac-
tivities on company time; compensating employees for time spent on union
activities-indicia of domination: recognition without proof of authority;
appearance of organization upon dissolution of predecessor organization after
validation of the Act; agreement concluded after cursory negotiations and
during pending negotiations with outside organization.
An employer cannot relieve itself of responsibility for acts of supervisory
employee in taking a leading part in the formation of a labor organization
where it had full knowledge of, acquiesced in, and indicated its approval of
his activities.
Discrimination: charges of discrimination, dismissed.
Temporary shut-down of department and lay-off of employees held not
violation of act where respondent was motivated by reasonable belief that
employees had prevented foreman from entering plant and were contem-
plating illegal action against respondent.
Temporary disciplinary lay-off of four employees not violation of Act
where respondent was motivated by reasonable belief that the said employees
were violating important rules of the respondent.
Remedial Orders : company-dominated union ordered disestablished.
Evidence : admissibility of (1) matters affecting the internal affairs of labor
organizations and (2) records concerning the instant case kept by the Board's
Regional Office.
Mr. Lester M. Levin and Mr. Colonel C. Sawyer, for the Board.
Davis; Pantzer, Baltzell & Sparks, by Mr. Paul Y. Davis, Mr.
Kurt F. Pantzer, Mr. Gustav H. Dongus, and Mr. Frederick D. Ander-
son, of Indianapolis, Ind., for the respondent.
Mr. Ben Law, of counsel to the Board.
26 N. L. R. B., No. 30.
227
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
On December 30, 1937, Amalgamated Association, Iron, Steel &
Tin Workers Local Union No. 1150, herein called Dodge Local 1150,
filed with the Regional Director for the Eleventh Region (Indianap-
olis, Indiana), herein called the Regional Director, a charge, and on
December 21, 1938, and on September 7, 1939, amended charges,
alleging that Link-Belt Company, Indianapolis, Indiana, herein
called the respondent, had engaged in and was- engaging in unfair
labor practices at its Dodge plant; within the meaning of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On February
3,1938, Steel'Workers Organizing Committee, herein called the S. W:
O. C., filed with the Regional Director a charge, and on January'17,
1939, an amended charge, alleging that the respondent bad, engaged
in and was engaging in unfair labor practices within the meaning of
the Act at its Ewart plant. On February 21, 1939; and on September
7, 1939, Amalgamated Association, Iron, Steel & Tin Workers Local
Union No. 2028, herein called Ewart Local 2028, filed with the Regional
Director amended charges alleging that the respondent had engaged
in and was engaging in unfair labor practices within the meaning of
the Act at its Ewart plant.
On June 24, 1939, the Board, acting pursuant to Article II, Section
37 (b), of National Labor Relations Board-Rules and Regulations-
Series I, as amended, ordered that the, case arising from the charge
that the respondent engaged in unfair labor practices at its Dodge
plant (C-1510); and the case arising from the charge that the respond-
ent had engaged in unfair'labor practices at its Ewart plant (C-1511),
be consolidated for purposes of hearing and for all other purposes and
that he 'record of the hearing should be made.'
Upon the above charges and amended charges, the Board, by the
Regional Director, issued its complaint 2 dated September 7, 1939,
I On June 28, 1939 , the Board ordered that the two cases raised by the charges , Cases Nos C-1510 and
C-1511, be consolidated for purposes of decision with Matt er of Link-Belt Company and Steel Workers brgani z-
ing Committee , Local No. 1150, Case No R-1255, a case concerning the representation of employees at the
Dodge plant of the respondent On July 7, 1939, the respondent filed its Motion to Vacate Order of Con-
solidation entered June 28, 1939, and on July 13, 1939 . the Board issued its Order denying the said motion
On July 18, 1939, the respondent filed its Motion to Reconsider Denial of Motion to Vacate Order of Con-
solidation entered ' June 28, 1939 , and on July 21, 1939 , the Board issued its Order denying the said motion.
On September 20, 1939, the Board issued its Amended Order of Consolidation consolidating Cases Nos.
C-1510 and C-1511 with the representation case, Case No R-1255, for all purposes On September 21, 1939,
the Board issued its Order severing the representation case , Case No R-1255, from Cases Nos. C-1510 and
C-1511.
2 On July 14, 1939, the respondent filed its Motion For Disclosure of Charges and Complaint in Cases Nos.
XT-C-323 and XI-C-338, now Cases Nos C-1510 and C-1511, and on July 17, 1939 , the Board issued its
Order denying the said motion
LINK-BELT COMPANY 229
against the respondent, alleging' that the, respondent had-'engaged iin
and'was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (u)', and (3) and Section 2 (6)' and'(7) of
the Act. *Copies'of the complaint accompanied by notices of 'hearing
were duly served' upon the respondent, Dodge Local 1150, E wart
Local 2028, Link-Belt Employees Association, Inc:, herein* called, the'
L. B: E. A., and Federal Labor Union No. 21366 (A. F. of,L.).
Concerning the unfair labor practices, the complaint, 'as subse-
quently.amended at the hear'ing,3 alleged, in substance:' (1) that during
December 1937 and January 1938, the respondent discharged from
its Ewart plant and thereafter refused to reinstate five named.em-
ployees because of their union activities; (2).that'since about March
1937 the respondent has continuously discriminated against its em-
ployees in the Ewait plant, who were members •of or affiliated' with
Ewart Local 2028, in the.terms or conditions of their employment
in respect to rates of pay, transfers ;to-less' desirable positions and in
various 'other ways; (3)' that on June 22, 1937, the'respondent dis-
charged 13, named employees from its Dodge plant because of their
union activity and that on different occasions thereafter it 'reinstated
'certain of 'the 13` named employees and' again terminated their,em-
ployment because of their union activity;' (4) that during November
1938 the respondent locked out from its Dodge plant and laid off for
a period of '8 hours 12 named employees because" of their,, union
activities; (5) that during November 1938' 'the respondent laid' off
from its Dodge plant for a period of '5 days four named employees
because of their-union activities; (6)'that in March 1937 and thereafter
the respondent discriminated in various 'other'ways against its 'em-
ployees in the Dodge plant' who were affiliated'. with ^ Dodge Local
1150 for the purpose of 'discouraging membership in Dodge Local
1150; (7) that in April 1933 the respondent initiated,' formed, spon-
sored, and dominated the Employees Board 'at,its Dodge plant and
contributed support thereto until April 1937;' (8) that in April 1937
the'Einployees Board changed its, name ' and form'and•becamc known
as the L. B. E.,A.; (9) that on or,about April'16, 1937, the respondent
initiated and assisted in' the formation of the L. B. E. A. at its Dodge
plant and has since dominated, interfered with the administration' of,
and contributed to the support -of 'the ^L. B. E. A.,' and; (10) that by
these and other acts the respondent interfered with, restrained; and
coerced 'its employees in the exercise of the rights guaranteed-in
Section 7 of the Act.
Pursuant to notice duly served upon the respondent; Dodge Local
1150, Ewalt Local 2028, the L. B. E. A., and Federal Labor Union
No. 21366 (A. F. of L.), a hearing was held at Indianapolis; Indiana,
7 On October 5, 1939 , at the close of the presentation of its case the Board moved to amend the complaint
in various minor respects . This motion was granted by the Trial Examiner
323429-42-vol 26-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from September 18 to October 24, 1939, before William P. Webb, the-
Trial Examiner duly designated by the Board.4 The Board and the
respondent were represented by counsel and participated in the hear-
ing. Dodge Local 1150, Ewart Local 2028, the L. B. E. A., and
Federal Labor Union No. 2136,6 (A. F. of L.) were not represented
by counsel nor did they participate in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to,produce
evidence bearing upon the issues was afforded all parties.
At the beginning of the hearing, on September 18, 1939, the re-
spondent filed its answer to the complaint, in which it admitted the
allegations in the complaint in respect to interstate commerce, but
denied that it had engaged in the unfair labor practices alleged therein,
and pleaded certain affirmative defenses.
During the course of the hearing the respondent made numerous
applications to the Trial Examiner for subpoenas and subpoenas daces
tecum requiring certain officials of Dodge Local 1150 and Ewart Local
2028 to produce the records of the said two unions at the hearing for
examination by the parties and for introduction in evidence. For the
same reasons the respondent applied for subpoenas and subpoenas daces
tecum directed to certain officials of the Board's Regional Office for
the Eleventh Region requiring them to produce at the hearing all
records kept by the Board concerning the cases raised on the charges.
Such applications were denied by the Trial Examiner. Also during the
course of the hearing the Trial Examiner made various rulings on
motions and,on objections to the admission of evidence. The Board
has reviewed these rulings and finds that no prejudicial errors were
committed. The rulings are hereby affirmed.
On July 14, 1939, the respondent filed a motion to dismiss the
proceedings in the complaint cases (Cases Nos. C-1510 and C-1511),
and to render a decision in the representation case (Case No. R-1255).
At the hearing the Trial Examiner reserved ruling on the first part of
this motion and denied the second part. During the hearing the
respondent twice moved to dismiss the complaint for lack of evidence
and also moved to quash the proceedings for the reason that the Board's
Rules and Regulations, Series 2, of July 15, 1939, are unconstitutional,
and for other reasons, and for a speedy determination of the case.
The Trial Examiner reserved ruling on these four motions until the
issuance of his Intermediate Report, discussed below, in which he
denied them. The Board has reviewed these rulings by the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
4 On July 14 , 1939 , the respondent filed its Motion for Disclosure of Name of Trial Examiner and on July
17, 1939, the Board issued its Order denying the said motion . On September 15. 1939 the respondent filed
a second Motion for Disclosure of Name of Trial Examiner . Also on September 15, 1929 , the Board issued
its Order designating William P. Webb as Trial Examiner
LINK-BELT COMPANY 231
On March 23, 1940, . the Trial Examiner filed an Intermediate
Report, copies of which were duly served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(2) and Section 2, (6) and (7) of the Act, and that the respondent had
not engaged andwas not engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (3) of the Act as alleged in
the complaint. He recommended that the respondent cease and
desist from engaging in unfair .labor practices, that it withdraw all
recognition and completely disestablish the L. B. E. A. as a represent-
ative of its employees for the purposes of collective bargaining, and
that the complaint be dismissed in so far as it alleges that the respond-
ent violated Section 8 (3) of the Act.
On April 26, 1940, S. W. O. C, on behalf of Dodge Local 1150,
filed exceptions to the Intermediate Report On May 6, 1940, the
respondent filed exceptions to the Intermediate Report and to the
record and proceedings and requested oral argument before the Board.
In its exceptions the respondent alleged that the refusal by the Trial
Examiner to issue subpoenas directing Dodge Local 1150 to produce
its records had deprived the respondent of the right to adduce evidence
upon material issues and that such refusal by the Trial Examiner
indicated that he would have refused to receive any evidence of the
kind which the respondent sought to elicit by its requests for subpoenas
of the kind mentioned above. On this basis the respondent applied
to the Board for leave to adduce the evidence alleged to have been so
excluded by the Trial Examiner and to adduce further evidence upon
all issues. The Board has considered this application by the respond-
ent and it is hereby denied.
On June 18, 1940, pursuant to notice served on the parties, oral
argument was had before the Board in Washington, D. C. Therespond-
ent was represented by counsel and participated in the argument.
The other parties did not appear. At-the oral argument the respond-
ent moved that the Board dismiss the exceptions filed on April 26,
1940, by S. W. O. C. on behalf of Dodge Local 1150, alleging as grounds
that they are not specific and accordingly, do not follow the Rules and
Regulations of the Board. The Board has considered the exceptions
in question, the respondent's motion and its argument in support of
the motion and finds'that its contention in this respect is without merit.
The motion is hereby denied.
The, Board- has considered the exceptions filed by S. W. O. C. on
behalf of Dodge Local 1150 and by the respondent and, except in so
far as said exceptions are consistent with the findings, conclusions,
and order set forth below, finds them to be without merit. -
Upon the entire record in the case, the Board makes the following:
232 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Illinois corporation having its principal office
and place of business in Chicago , Illinois. In addition to operating
engineering plants at Chicago , Illinois, Philadelphia , Pennsylvania,
Sam Francisco , California; Atlanta, Georgia , and Toronto , Canada,
the responddnt owns and operates two chain factories and' malleable
foundries ,' in Indianapolis , Indiana. ' - The two chain factories and
malleable foundries in Indianapolis are designated respectively as the
Dodge plant and the Ewart plant and are engaged in the production
and' sale of chains for power transmission , elevating and conveying
purposes . Only the Dodge and Ewart plants of the respondent are
directly involved in this proceeding.
During 1938 the estimated cost of raw materials used in manufac-
turing operations at the Dodge and Ewart plants was between
$2,000,000 and $3,000,000. Between 80 and 90 per cent ' of the raw
materials so used had a source outside Indiana. Also during 1938
the 'value of manufactured goods sold by the respondent from the
Dodge and Ewart ' plants was approximately $7,000,000, divided about
evenly between the' two plants .- Approximately 90 per cent of such
manufactured goods were shipped to destinations ' outside Indiana.
The number of employees at each of the two plants here involved
varids roughly between' 800 and 1200 depending upon general business
conditions and other factors.'
II. THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Association, Iron, Steel &, Tin Workers Local Union
No. 1150 is a labor organization affiliated ,with the Congress of In-
dustrial Organizations , admitting to membership production and
maintenance employees at , the Dodge plant of the respondent.
Amalgamated Association, Iron, Steel ' & ,Tin Workers Local Union
No. 2028 is a labor organization affiliated with the Congress of In-
dustrial Organizations , admitting to, membership production and
maintenance employees at the Ewart plant of the respondent.,
Link-Belt Employees Board of the Dodge plant , herein called Dodge
Employees Board, was an unaffiliated , labor organization , consisting
of elected representatives from the various departments of the Dodge
plant and a representative selected by the respondent , which purported
to represent employees , of the respondent at the Dodge plant.
Link-Belt Employees Association , Inc., is a labor organization,
affiliated with , the National Independent Unions of America, Inc.,
admitting to membership, all employees at the Dodge plant except
those with executive authority.
LINK-BEL'L' COMPANY 233
III . THE UNFAIR LABOR PRACTICES
A. Interference with , domination and support of the Employees Board
The complaint alleges, and the J•espor dent admits,' that in '] 933 the
respondent initiated , sponsored , and contributed to the support of 'the
Employees Board.e ' •
The evidence shows that the.Employees Board was formed pursuant
to a written plan'issued by James S. Watson , vice president of the re-
spondent and general manager of the Dodge and Ewart plants, on
July 10, 1933, and distributed among employees at."the Dodge and
Ewart plants. In so far as the Dodge plant is concerried, the plan
provided for creation of a permanent board of representatives , elected
by the employees from among themselves , to hold regular meetings
with a representative selected by the respondent for the consideration
of mutual problems. According to its preamble , the objectives of the
plan were to enable the respondent to know the wishes of the em
ployees on all mat'te 'rs' pertaining to'them, such as wages, hours of
work, working conditions , beneficial ' societies , and safety measures,
and, "To enable the Link -Belt Company , and its employees, to coop-
crate to the fullest extent in accordance with the spirit of the Na-
tional Industrial Recovery Act."
Basil IT . Booher, a tool grinder and tool repairer in the Dodge plant,
subsequently elected president of Dodge Local 1150 , testified that at
about the time the Employees Board was being organized , 'Barney
Fristo, a foreman in the punch-press department of the Dodge plant,
told him that the Dodge Employees Board was being organized to
keep outside organizations out of the plant. At the, time Booher was
a member of an American Federation of Labor union which was
active for a short time in 1933 at the Dodge plant. Frisco did not
testify at the hearing.
Pursuant'to instructions from the ' respondent , the employees at the
Dodge plant held elections for nominating candidates and soon there-
after, on or about July 17, 1933 , they held elections within groups
apportioned by the respondent for the selection of representatives to
serve on the Employees - Board. ' The elections were held in the plant
with the respondent furnishing the ballets :, ' Ballots were distributed
to the employees by the foremen. 1 ,
- On the afternoon of July 17 , 1933, after. the election , the repre-
sentatives elected by the employees met with Watson, and F: S. O'Neil,
the assistant general manager , of the respondent ' s, plant , at Indian-
' Although admitting in its answer that it initiated, sponsored, and contributed to the support of the
Employees Board, the respondent alleged in its answer and contended at the hearing that it did ndt form,
dominate, or interfere with the administration of the Employees Board.
9 Although none of the respondent's actions prior to July 5, 1935, the effective date of the Act, constitute
unfair labor practices, events occurring before that date must be considered in order to evaluate subsequent
events
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apolis. Watson and O'Neil explained the purpose, duties, and func-
tions of the Employees Board and the representatives selected their
chairman. The chairman appointed a committee to draw up rules
and regulations. At a meeting on July 24, 1933, the rules and regu-
lations prepared by the committee were adopted by the Employees
Board subject to approval by the respondent. Such approval, was
subsequently given by the respondent.
The first regular meeting of the Employees Board was held oa
August 8, 1933. Thereafter, regular monthly meetings and some
special meetings were held. Such meetings usually occurred in the
afternoon, starting at 1:00 or 1:30 p. in. The representatives elected
by the employees customarily met in private for half an hour or more
to consider the matters to be discussed with the management. One
or more representatives of the respondent would then enter the meet-
ing to hear and discuss grievances of various kinds, to make sugges-
tions, and otherwise to confer with the employees' representatives.
Watson, O'Neil, C. V. Loughery, manager of the Dodge plant, and
R. N. Phelps, manager of the personnel department for the Dodge and
Ewart plants, were the representatives of the respondent who usually
met with the Employees Board, although all four of them were not
always present.
All meetings were held in the plant and the members of theEmployees
Board were paid their regular wages by the respondent for the time
spent in attending the meetings. The rules and regulations adopted
by the Employees Board, upon the approval of the respondent, were
printed in book form by the respondent.
The official minutes of a meeting of the Employees Board held on
October 17, 1933, contain the following account of remarks made at
the meeting by O'Neil and Loughery, respectively:
Mr. O'Neil then addressed the Board and told them of the Com-
pany's preference for handling company and employee business
through the Board rather than through any outside organizations.
Mr. Loughery discussed the advantages of employee representa-
tion through the Board and told of substantial increases in cost as
a result of increases in salary already made.
At a special meeting of the Employees Board on November 13, 1933,
Watson informed those present that he would meet on the next day
with an outside union known as Link-Belt Local,' but that the respond-
ent would continue the Employees Board regardless of the outcome
of the meeting. On April 25, 1934, the Employees Board amended its
rules and regulations. The rules and regulations, as amended, were
published in book form by the respondent and distributed among em-
ployees at the Dodge plant. In part, the rules and regulations, as
7 The record does not disclose the nature of this organization.
LINK-BELT COMPANY 235
amended, provided: (1) that the minimum number of representatives
should not be less than 7 and the maximum number not more than 13;,
(2)-that the respondent should appoint one representative to keep the
respondent in touch with the Employees Board; (3) that any person
having the right to hire or discharge should not be eligible as a repre-
senitative or qualified to vote; (4) that representatives should be elected
annually; (5) that the respondent's representative on the Employees
Board should. attend all meetings of the board, but should not be
entitled to vote; (6) that regular meetings of the Employees Board
should be held monthly at a place provided by the respondent and that
the respondent should pay average wages to all members while attend-
ing meetings; .(7) that all expenses incurred by the Employees Board
should be paid by the respondent and that in no case should an employee
be put to any expense in connection with the Employees Board; (8) that
the bylaws and regulation's might be amended by a two-third vote of
the Employees Board; (9) that each employee representative should
be free to perform his functions as such in a completely independent
manner; and (10) that the Employees Board should not be terminated
until after 90 days of consideration by the Employees Board and the
respondent.
In the operation of the Employees Board there were no meetings
of the general body of employees at the Dodge plant. Action taken by
the Employees Board was not submitted to the employees for consider-
ation or ratification except in so far as representatives might informally
discuss such matters with their constituents.
At a regular meeting of the Employees Board on June 11, 1935, all
employee representatives were present, together with Watson, O'Neil,
Loughery, Phelps, and W. H. Maxwell, superintendent of the Dodge
plant. After dealing with routine matters, O'Neil suggested that all
present express themselves relative to the continuation of the Employ-
ees Board. Seven of the employee representatives declared that they
favored-its continuation. The five representatives of the respondent
who were present then made separate statements recommending that
the Employees Board continue to function.
An election of representatives to constitute the Employees Board
for the' year 1937 was held at the Dodge plant on January 14, 1937.
The following nine men were elected:
Name Group Job
Fred Kepner-------------------------------------- 1 Assembler Department 2800.
Art Hayes----------------------------------------- 2 Screw machine operator
William Dudziak-------------------------------- 3 Tool maker in tool room.
Bradley Stone------------------------------------- 4 Screw machine operator
Orlando Taylor----------------------------------- 5 Inspector beat treat department.
Joe Maish--------------------------------------- 6 Watchman.
Roy M Swartz- 7 Head of order department
Walter Harvey-------------------------------- 8 Machinist
Glen Cox ------------------------------------------ 9 Rolling machine operator
11 1
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Soon . after the election, the representatives selected William Dudziak
as chairman of the Employees Board and Roy M. Swartz as secretary.
Minutes of the meetings of the Employees Board in 1937 were taken
by Roy M. Swartz, head of the, order department at the Dodge plant,
who had been electedas representative of group No. 7, which consisted
of about 100 office employees., Swartz testified that after taking the
minutes in longhand he had them typed by one of the respondent's
stenographers. -He then submitted copies, to Dudziak, chairman,of
the Employees Board, and, to Loughery, manager of the Dodge plant,
for approval. If approved; Swartz, then had the minutes multigraphed
m .the respondent's stenographic, department and copies were given to
each <;employ, ee representative, for distribution in their respective
groups.
, . The minutes, prepared by Swartz as described above, of a meeting
of the Employees Board held on February 16,1937, contain the follow
ing paragraph: "The By-Laws Committee reported their suggestions
for revisions, in the ,By-Laws which were discussed generally, and the
change in Article V; . Section 2, ^ was .discussed rather; thoroughly, and
after the Management voiced their views with respect, to this change,
a motion was made by Mr. Kepner, and seconded by Mr. Taylor, that
the request for this ;change in the By-Laws be withdrawn, and the
motion carried."
Orlando Taylor testified that the above-mentioned proposed change
in, the„bylaws ;of the Employees Board .h ad, originally been made, in
the form of a motion bytFred Kepner, seconded by Taylor. The
change, so proposed,, had as its objective, according to Taylor, ". . .
that, representatives for the employees might have a littleimore power
when it, came, to laying a man off, discharging an employee or hiring an
employee." When Kepner's, motion, was brought up at the meeting
of the Employees Board on February 16,1937, F. S. O'Neil, the assist-
ant general manager of the Dodge and Ewart plants, was present.
Taylor testified that, O'Neil objected vigorously; told Dudziak, the
chairman of:the Employees Board, that he did not like the attitude the
latter was taking; criticized Kepner for making the motion and asked
Taylor why he had seconded it., O'Neil then stated that lie wanted it
understood that the respondent ,could still run its • own, business.,
Taylor testified that after hearing O'Neil's,remarks,, he and Kepner
felt they were endangering their jobs. Kepner accordingly moved to
withdraw the 'original motion and Taylor seconded the motion to
withdraw.
Concerning the above-discussed incident, O'Neil testified that he
did not remember whether or not lie told Dudziak that he did not like
his attitude and that he had- simply explained, without bitterness, the
respondent's position in the matter. He added that it was the purpose
of such meetings to permit both the employee representatives and
, 'LINK-BELT COMPANY 237
representatives of the-respondent to so state their positions on'mutual
problems., 'Other,persons present at the meeting did. not,.testify con-
cerning-events after Kepner made his original, motion.,, On the basis
of the above evidence' we find • that Taylor's account of the remarks
made by O'Neil is substantially correct.
Regular meetings of the Employees Board continued until April 16,
1937, the system of its operation remaining essentially as described in
yariou's paragraphs above for almost a year and 9 months after July 5,
1935, the effective date of 'the Act. It is undisputed that the respond-
ent initiated; sponsored, and contributed to , the support of, the Em-
ployees Board,. and we so find. On the basis of all the evidence we
find the respondent also dominated, contributed to the support of, and
interfered with the administration of the Employees Board until
April,16, 1937.
Dodge Local 1150 came into existence about December 1936. at
both the Dodge and Ewart plants of the respondent. Ewart Local
2028 was not organized as a separate local union of the Amalgamated
Association,, -Iron, Steel & Tin Workers until June,1937. In February
1937 Dodge Local 1150 selected its first regular officers, those being:
president, Basil Booker, an employee in the tool, room of the Dodge
plant; recording 'secretary, 'Frances Cox, an inspector in department
229 at the Dodge plant; treasurer, Carl Hyatt, a tool maker in theEwart
plant; and financial secretary, Norton Bray, an employee at the Ewart
plant. Soon after the selection of its officers, Dodge Local 1150 started
an organizing campaign among employees at the two plants,of the
respondent in Indianapolis. , , ; ,•,
Orlando Taylor, then an employee representative on the Employee
Board at the Dodge plant, testified ,that-in February,1937 he had a
short conversation concerning Dodge Local 1150, with his foreman',
Barney Fristo, in the plant during working hours. , According ,to
Taylor, Fristo stated, referring to Dodge Local '1150, "Well, it may
be- possible they will organize. I can't, help that, but they are never
going to be able to make me work a man unless I want him to,work.','
As previously stated,,Fristo did not.testify. , ' , ,
On -March 11,A937, the respondent posted the following, notice;
signed by C. V. Loughery, manager, of the Dodge plant, on its bulletin
boards at the Dodge plant:
'We are told 'there is solicitation going on in our plant 'for
members in an organization. 'Employees have raised quite' a
few questions about this activity,'which need to be answered:
'It is not necessary for any employee to join any thing to hold
his job, for the same law, that gives'; man the'right to'join also
gives any other man the right not to join.
Coercion, threatening, and intimidating by anyone, or the
solicitation of membership in any organization is strictly for-
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bidden on company property and any person disregarding this
rule is an undesirable employee for this company to retain.
As always, the company is ready to listen to and answer fairly
any questions which come up, affecting our relations.
Although it is clear that at about the time the respondent posted
the above notice Dodge Local 1150 was engaged in an organizing
campaign among employees at the Dodge and Ewart plants, the
evidence does not show that, at that time, persons acting on behalf
of Dodge Local 1150 were guilty of coercion, threatening, or intimida-
tion. The limited evidence available on the point does indicate,
however, that such persons did, on occasion, solicit for membership
in Dodge Local 1150 in the Dodge plant during working hours.
Apparently the notice posted by the respondent on March 11, 1937,
was directed at the organizational efforts of Dodge Local 1150. In
so far as the record discloses, aside from the Employees Board, there
was no other labor organization active in the plant at that time.
B. Domination of and interference with the L. B. E. A.
On April 16, 1937, 4 days after the United States Supreme Court
upheld the constitutionality of the Act,8 the Dodge Employees Board
held its last meeting. The minutes of this meeting., prepared by
Roy M. Swartz and' posted in the Dodge plant, state in substance:
(1) that the Employees Board held its regular monthly'meeting on
April 16, 1937, and all members were present, including F. S. O'Neil,
assistant general manager of the Dodge and Ewart plants, acting as
the respondent's representative; (2) that also present, on invitation
from the Employees Board, were C. V. Loughery, manager of the
Dodge plant, W. H. Maxwell, superintendent of the Dodge plant,
and R. N. Phelps, manager of the personnel department at the Dodge
and Ewart plants; (3) that the Employees Board, as then constituted,
would require some revision in its bylaws to avoid violation of the
Wagner Labor Law; and (4) that in the opinion of members of the
Employees Board, the benefits received by the employees through
the efforts of the Employees Board were greater than they realized.
The minutes were signed by Swartz as secretary of the Employees
Board.
The evidence concerning this meeting of the Employees Board on
April 16, 1937, will be fully discussed below. It is undisputed, how-
ever, that the L. B. E. A. was organized at this meeting by five
employee representatives of the Employees Board after the departure
of O'Neil, Loughery, Maxwell, and Phelps from the meeting. -
8 N L R. B. v Jones & Laughlin Steel Corp , 301 U S 1, 1everseng .Tones & Laughlin Steel Corp v N L
R B , 85 F (2d) 998 (C C A 5), and enforcing Matter of Jones & Laughlin Steel Corporation and Amalga.
mated Association of Iron, Steel & Tin Workers of North America, Beaver Valley Lodge No 200, 1 N. L it. B.
503.
LINK-BELT COMPANY 239
The part taken by Swartz, as described below, at the meeting of
April 16, 1937, and in the subsequent affairs of the L. B. E. A. was a
significant and often a determinative factor influencing the formation
and the course of action of the L. B. E. A. It is, therefore, necessary
at this point to examine Swartz's relationship with the respondent.
Swartz testified that he had been employed by the respondent in the
Dodge plant for 27 years. He started work as an office boy and there-
after had experience in various departments of the plant. In 1929
Swartz was promoted to the position of head of the order department.
He held this position during the entire period under consideration
here. As head of the order department, Swartz's salary was $200 a
month. He had, according to his testimony, about 15 clerks working
under him at an average salary of about $100 a month. Swartz
had authority to recommend hiring and discharging of employees in
his department. His immediate superior was Sidney L. Houck,
production manager.
Previous to serving as secretary of the Employees Board in 1937,9
Swartz had been active in a mutual benefit society among the re-
spondent's employees.10 In 1937 he became a district representative
of the National Independent Unions of America, Inc., an organization
which the L. B. E. A. joined shortly after its formation.
Orlando Taylor, Glen Cox, Swartz, O'Neil, Loughery, and Phelps
all testified concerning events at the meeting of the Employees Board
on April 16, 1937. Their respective accounts differ somewhat in
details. The meeting was held in the conference room of the plant.
It started at 1:30 p. in. with only the nine employee representatives
being present. Some ordinary business was discussed and then
Swartz announced that, due to a recent decision of the United States
Supreme Court validating the Wagner Act, the Employees Board
would have to either change its bylaws or disband. Enoch Ballard 11
suggested the formation of a new union and a general discussion en-
sued. Four of the members present were in favor of dissolving the
Employees Board and opposed the formation of a new union. They
were Orlando Taylor, William Dudziak, Joe Marsh, and Glen Cox.
Five others, Roy Swartz, Enoch Ballard, Fred Kepner, Walter
Harvey, and Bradley Stone, favored a new organization. Stone
suggested that he knew a man in Anderson, Indiana, who could help
them organize.
9 Swartz was elected from a group of office workers as their representative on the Employees Board by a
vote of 72 for Swartz to 21 for his opponent, Walter Harris, a draftsman
iU This was an organization composed of employees of the respondent which, in the event of sickness or
death among them, provided funds for their benefit
ii According to the available evidence , Enoch Ballard was not one of the employee representatives elected
to the Employees Board in January 1937. The minutes and accounts of the meeting of April 16, 1937,
indicate that he was by that time either a member or acting member of the Employees Board, although his
status is not specifically explained Art Hayes , one of the employee representatives elected in January
1937, is not mentioned as being present at the meeting of April 16, 1937
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this point, about 2:00 p. in., the officials of the respondent,
O'Neil, Loughery, Maxwell, and Phelps, entered the meeting, Lough-
ery stated that something would have to be done about the Employees
Board and Swartz, replied, "We have already discussed that." - One of
the employee representatives asked Loughery what he thought about
it new organization and Loughery•replied that he could say nothing on
the.subject. According to Cox, Swartz then said, "Well, we aregoing
to organize it anyhow," and Loughery replied, "It looks like you fellows
would, be able, to organize a pretty good union." Loughery did not
deny making such a statement. The matter of a name for the proposed
new organization was then discussed. Swartz suggested "Link-Belt
Union." Taylor and Cox testified that O'Neil then 'stated he would
rather have it called "Link Belt Association " O'Neil admitted that
he might have said he would prefer to have the organization called an
association rather than a union. Soon thereafter, O'Neil, Loughery,
Maxwell, and Phelps left the meeting.
The nine employee representatives remained in the conference room
and further discussed the merits of a new organization. Swartz
testified that Dudziak, Taylor, Cox,. and Marsh wanted everyone to
join Dodge Local 1150, but that the other men preferred a union of
their own because it would be cheaper and because they felt that they
could bargain more successfully with the respondent than could out-
siders. Thefive men favoring a new union then decided to organize
and selected as temporary officers, Enoch Ballard, president, Roy M.
Swartz, 'secretary, and Fred Kepner, treasurer., The -.meeting ad-
journed about 4:30'p. in. All of the employees present at this meeting
were paid by the respondent for their time spent in attendance.
The name Link-Belt Employees Association, substantially. that
suggested by O'Neil, was later adopted for the new organization.
Swartz was the only one of the nine employee representatives on
the Employees Board at the meeting of April 16, 1937, who was, a
supervisory employee. It is clear from the evidence that he took an
active and leading part in the formation of the L. B. E: A. The re-
spondent's officials who attended the meeting vigorously denied; how-
ever, that Swartz acted in this respect upon, instructions-from them.
Witnesses for the respondent testified that Swartz'enjoyed activities of
this nature and pointed to his' connections with the mutual benefit
society, previously mentioned, as typical of his interest in organiza-
tional affairs. Swartz also testified, in substance, that his work on
behalf of the Employees Board and the L. B: E. A. was entirely
voluntary. Even though such testimony be accepted as true, in'view
of the supervisory nature of his position, the respondent cannot dis-
associate itself of responsibility for Swartz's actions by merely showing
that it did not order him to take them. It is clear that the respondent's
executive officials knew at the meeting of the Employees Board on
LINK-BELT COMPANY 241
April 16, 1937,, that Swartz was taking a leading part in organizing the
L. B. E'. ,A. Their' attitude, as shown by their statements at the meet=
ing, was one of approval of his actions and was in striking contrast
to; their attitude toward the organizational attempts of Dodge Local
1150,,as expressed, in `the notice posted,on March 11, 1937, warning
the employees against solicitation of members in the plant and stating
emphatically that it, was "not" necessary to join any organization to
hold a job. Under the circumstances,, the respondent, acquiesced in,
indicated its approval of, and apparently ratified Swartz's activities
in helping to form the L. B. E. A.
Thus,,. all, of the evidence discloses that the idea of forming the
L. B. E. A. was conceived and executed by members of the Employees
Board, an organization formed and dominated by the, respondent.
The L. B. E. A. was formed, by such members, one of whom was ' a
supervisory employee, at a meeting on the respondent's time and
property, with,the knowledge, consent, and, approval of the respond-
ent's executives. , i
,,The Employees. Board, as such, apparently ceased to function
or exist after Swartz completed ,the act of preparing the minutes of
the meeting of April 16, 1937. The evidence indicates that no official
announcements of its demise were made by either the respondent or the
Employees Board to the employees at the Dodge plant. -
On April, 17, ' 1937, Orlando Taylor joined Dodge Local 11150,.
The following Monday he secured his union button and wore it to work.
On the following day Taylor's 'foreman, Barney Fristo, noticed the
button and warned Taylor'that he would have to be careful: ''Clarence
C. DeWitt, an employee in department 216 in the plant,'te'stified that
while he was at work in May or June 1937, he had a conversation with
his'foreman, Paul Hubbell, in which the latter asked him if there was
anything wrong with him (Hubbell) as a foreman. 'DeWitt replied
that there was not and Hubbell then said, according to DeWitt,
"Well, what is the matter with the"company? Ain't 'the company
treating you, right? I heard'you' joined the C. I. O. and that you are
active in organizing. I don't 'think that is the right thing to do."
The Trial Examiner found that'Hubbell's partial denial of DeWitt's
testimony was not convincing: We find that Hubbell spoke to DeWitt
substantially 's recited above.
On or about. April 20, 11937j, printed handbills were, passed out
on behalf of the L. B. E. A. to the employees,at the.plant,gates. , The
handbills advertised a mass meeting to be held at.8:00_ p: 1m., April 21,
1937, and stated in part:
Do you want to represent yourself or do'you want an outsider
to represent,you? Why not join an organization made up entirely
of' Link.Belt employees. , The Wagner Labor Law gives us the
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same power to represent you as any other labor organization in
collective bargaining with the Company. The Link-Belt Com-
pany has nothing to do with our organization, it is controlled and
operated by employees only. To insure your rights, attend this
meeting without fail. Everybody invited. Link-Belt Employ-
ees Association.
The mass meeting was held as advertised with Ballard presiding.
Two men from the Delco-Remy plant at Anderson, Indiana, and
Swartz were also on the speakers' platform. Swartz introduced the
two men from Anderson to the audience and they made talks and
answered questions about a union in the Delco-Remy plant. Basil
Booher, who attended the meeting, testified that during the previous
afternoon Swartz showed the two men from Anderson, Indiana, around
the respondent's plant. This testimony was not refuted.
During the meeting, Gene Whittaker, a representative of the
S. W. 0. C., not an employee of the respondent, asked to be recognized
by the chairman., His request was denied and he was forcibly pushed
to the rear of the crowd by Swartz, Kepner, and Ballard, all employee
representatives on the Employees Board which had, within the week,
ceased to function. Booher protested the silencing of Whittaker but
was refused recognition by the chairman.
About this time a petition was circulated ' throughout the Dodge
plant by Swartz and others. It bore the following heading:
Under the provisions of the Wagner Labor Act, ' we are per-
mitted to choose our own representatives or organization in deal-
ing with the Company for which we work. We the undersigned
desire to form our own organization within the ranks of the
employees. , We feel that such an organization would accomplish
more without any, interference from any outside source what-
soever. Unless 51 % or more of the Link-Belt Employees agree
to said organization, this proposition will be dropped.
(Sgd .) LINK-BELT EMPLOYEES ASSOCIATION,
ENOCH F. BALLARD, President,
ROY M. SWARTZ, Secretary,
FRED KEPNER, Treasurer,
Temporary Oficers.
' The minutes of various meetings of the L. B. E. A., kept by Swartz
and authenticated by him at the hearing, were introduced in evi-
dence. Such minutes for the mass meeting of April 21, 1937; 'state
in part:
Mr. Swartz amplified the fact that the present officers were only
temporary and they intended to relinquish their duties just as soon
as the organization was built up and able to reorganize and elect
LINK-BELT COMPANY 243
permanent officers. ' He also reminded you of the very con-
venient manner that-purchases can be made without the ready
cash through the company and how nice it is to have a bottle
of Coca Cola in -these coming summer months all of which will
be retained if our organization is in power. -
Minutes of another mass meeting on behalf of the L. B. E. A. held
on April 28, 1937, state in part:
Mr. Swartz gave a short talk indicating that our organization
could do more for the employees than any other organization
and best of all at a more economical cost. He also repeated
that if our opponents would be the collective bargaining agents
it is doubtful if many of the privileges we now have will be re-
tained by the company. Such as the Beneficial Society and
Credit Union, possibly would be discontinued.
Swartz testified that by his use of the word "opponents" above,
he referred to the C. I. 0. As noted, Swartz had been active in the
beneficial ^ society refered to.12 Swartz also testified that all his
statements that rights might be taken away from the employees
should Dodge Local 1150 obtain bargaining rights were purely as-
sumptions on his part. Apparently, the rights and privileges referred
to were not taken away by the respondent, although, as shown
below, Dodge Local 1150 subsequently obtained recognition by the
respondent as bargaining agent for employees at the Dodge plant.
The fact cannot be overlooked, however, that such statements were
made by a supervisory employee of the respondent whose previous
actions in connection with the L. B. E. A. had been acquiesced in
and tacitly approved by the respondent and who spoke with apparent
knowledge and authority upon the matters referred to.
In the latter part of April 1937, Swartz, Ballard, Kepner, and Stone
made a-trip to Anderson, Indiana,'arid conferred with officers of the
Delco-Remy Employees Association. These persons advised them
to incorporate the L. B. E. A. It took, the above-named employees
all-of 1 day to make the trip to Anderson and they quit work during
that day. No deduction was made from Swartz's salary on account
of his absence from work.
The L. B. E. A. was incorporated as a labor organization in the
State of Indiana on April 22, 1937. The incorporators were Roy M.
Swartz, Enoch Ballard, and Fred Kepner.
Basil Booher and Reid F. Bell testified that about May 1, 1937,
they were on a grievance committee for Dodge Local 1150 which
went in to see Loughery and Maxwell concerning four members who
had been temporarily laid off.13 Both men testified that just before
12 See footnote 10, supra.
13 These lay-offs were not the subject of any allegation in the complaint
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entering the plant office, about 1:00 'or 1:30 p. m., ,they saw Swartz
seated in a car parked near the curb in front of the office allegedly
collecting dues for the L. B. E. A. from employees who were leaving
the plant and walking over to him. When the grievance committee
was admitted into the office to see Maxwell and Louighery, Booker
told them what he had seen, as described above, and asked them to
look out the! window to see for themselves. It is undisputed that
Maxwell and Loughery refused to, look, although members of the
g'rievance' committee called their attentioh to the fact' that'collecting
and' paying union dues on the respondent's premises or during'working
hours 'was against its'rules. LOughery admitted'-that he made no
subsequent investigation' of Swartz's alleged violation of the' respon-
dent's rules.
On May 4, ' 1937, Dodge Local 1150 requested J. S. Watson, vice
president of the respondent and general manager of the Dodge and
Ewart. plants, to meet its negotiating committee for the purpose of
considering a contract. Pursuant to this request a meeting was held;
as :discussed below, between representatives of Dodge Local 1150 and
the respondent on May 12, 1937. 1
In the meantime;' on May 5, 1937, members of the L. B. E. A.
received information from an undisclosed source. that Dodge' Local
1150. had asked for, recognition as bargaining agent for the employees
at the Dodge plant. Upon directions from Swartz, Ballard, the, tem-
porary president of the L. B. E. A.,.immediately called an emergency
meeting of various leaders in the organization to consider a course of
action. 'This meeting was held in Swartz's home on the morning of
May •5, 1937, during working hours. Those present included Swartz,
Ballard, Kepner, and Stone, all formerly of the Employees Board, an
attorney named-Leland Morgan, who was employed, by the L. B..E, A.,
and five others. -The employees who attended the meeting had to
leave their work to do so. No deduction- was made from Swartz's
salary for the time .he lost. from work while attending the meeting..
Wages of the other employees 'attending were deducted. ..
11 During the course of the meeting, Swartz telephoned to, the secretary-
of; an employees association in the 'respondent's plant in.Chicago and
had him read over the telephone the wording of an agreement which
the said employees association had with the respondent concerning
employees of the respondent-m'Chicago. _ Swartz gave this•form'for
an agreement to Morgan, the attorney, and the latter drew up-.a
somewhat similar document worded+in the form of a petition. Some-
one'at the meeting telephoned C. V. Loughery, manager of the Dodge
plant, and arranged a meeting with him for the same afternoon.
Swartz testified' that, although' he could not remember -for sure,' he
might have been the one who made the telephone call to Loughery.
LINK-BELT COMPANY 245
Pursuant to the appointment so arranged , the same persons who
met at Swartz's home on the morning of May 5, 1937 , met with
Loughery at about 2 : 30 p. in. in the afternoon of the same day and
presented their petition for recognition by the respondent of the
L. B. E. A. as bargaining agent for employees at the Dodge plant.
Swartz testified that Loughery agreed to grant the request of the
L. B. E. A. for bargaining rights on the condition that it would pro-
duce evidence of majority representation . Loughery testified that he
refused to accord recognition to the L. B. E. A. at the meeting of May
5, 1937 , because he felt that its petition was not supported by evidence
of majority, representation. On the night of May 5, 1937 , at a meeting
of officers of the L. B. E. A., Swartz announced that he was confident
that the respondent would accept the L. B. E. A. as bargaining agent.
On May 7, 1937 , Swartz executed an affidavit to the effect that the
L. B. E. A. had, as members , a majority of the employees of the
Dodge plant and attached to this affidavit a list of 634 names of alleged
members of the L. B. E. A. who were employees at the Dodge plant.
There were at the time approximately 1,200 employees at the Dodge
plant. This affidavit and list of names was presented to the respondent
by the L. B. E. A. Loughery and other officials of the respondent tes-
tified that they had the list carefully checked against current pay rolls
and that they found 52 per cent of the employees at the Dodge plant
were represented on the list. They were , accordingly satisfied that
the L. B. E. A. had majority representation and was entitled to
recognition.
On May 10, 1937, the respondent and the L. B. E. A . executed
the following agreement:
This agreement , dated May 10, . 1937 , between Link-Belt Com-
pany and the Link-Belt Employees Association , Inc., a labor
association of workers employed by said Corporation:
The association has presented to the Corporation signatures 14
from well over fifty per cent (50%) of the employees working at
the Dodge plant, Indianapolis , Indiana, authorizing the formation
of said Association , and authorizing it to act as the collective
bargaining agent for the employees of said Plant. In accordance
with the provision of Section 9 (a) of the National Labor Rela-
tions Act, the Corporation recognizes said association as the ex-
clusive representative of all the employees in said Dodge Plant
of the Link-Belt Company and representatives of the Corporation
when so requested will meet with representatives of the Associa-
14 In so far as the record discloses , the L. B . E A did not submit the signatures of its members to the
respondent as stated in the agreement . The list of 634 names which it did submit was a typewritten list
sworn to by Swartz. R N . Phelps, manager of the personnel department at the Dodge and Ewart plants,
testified that it was this list which he had had checked, by subordinates , against the respondent 's pay roll
to determine the question of majority representation
323429-42-vol. 26-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion for the purpose of considering the conclusion of an agreement
with respect to wages, hours of employment and other conditions
of employment.l5
LINK-BELT COMPANY,
By C. V. LOUGHERY,
Mgr. Dodge Plant.
LINK-BELT EMPLOYEES ASSOCIATION, INC.,
By ENOCH L. BALLARD,
.Temporary President.
Witness: Louis GOODwIN.
On May 11, 1937, the respondent posted a notice in the Dodge
plant stating that, having satisfied itself 'that the L. B. E. A. repre-
sented a majority of the employees at the Dodge plant, it had signed
an agreement with the L., B. E. A. recognizing it as the sole bargaining
agency for such employees.
On May 12, 1937, pursuant to the request made on May 4 by Dodge
Local 1150, J. S. Watson, representing the'respondent, met with a
committee of representatives of Dodge Local 1150. James Robb,
Field Director for the S. W. O. C., acting as spokesman for Dodge
Local 1150, told Watson that it was the purpose of the committee to
negotiate a contract between the respondent and Dodge Local 1150
covering the production employees at both the Dodge and Ewart
plants. According to the undisputed account of the meeting given
by Basil Booher, who was present, Watson informed the committee
that the respondent had already negotiated a contract with one union.
An extensive discussion ensued after which Watson stated that Dodge
Local 1150 would have to produce evidence of its membership at the
plants. The committee then suggested that the membership cards
of Dodge Local 1150 be submitted, along with the respondent's pay
rolls, to the National Labor Relations Board for purposes of a compari-
son. Watson refused to follow this suggestion, but made a counter-
suggestion that the cards be turned over to C. V. Loughery, manager
of the Dodge plant, for a comparison by him. Dodge Local 1150
refused to follow this suggestion and the meeting ended.
On May 19, 1937, Dodge Local 1150 filed with the Regional Director
a petition for an investigation and certification of representatives at
both the Dodge and Ewart plants.
It should be stated at this point that, while the events described
above were occurring at the Dodge plant of the respondent, employer-
employee relations at the respondent's Ewart plant were, in some
respects, following a similar course. Thus, in 1933 the respondent
initiated and sponsored, at the Ewart plant an employees board set
15 Apparently no written agreement with respect to wages, hours of employment and other conditions of
employment was ever executed between the respondent and the L. B E. A. In the latter part of May 1937,
these two parties did, however , confer with respect to wage increases and on June 1, 1937 , the respondent
granted a general wage increase at both the Dodge and Ewart plants.
LINK-BELT COMPANY 247
tip in the same general manner as the Employees Board at the Dodge
plant. In the spring of 1937 the employees board at the Ewart
plant ceased to exist as such and soon thereafter an organization called
the Ewart Employees Association, Inc., was established and solicited
members at the Ewart plant.1e
F. S. O'Neil, who, in addition to being assistant general manager
of the Indianapolis plants of the respondent, acted as general manager
of the Ewart plant, testified that soon after it was organized the
Ewart Employees Association, Inc., submitted satisfactory proof to
the respondent of majority representation in the Ewart plant. On
May 18, 1937, the respondent posted a notice stating that it had signed
an agreement recognizing the Ewart Employees Association, Inc., as
the collective bargaining agent for employees at the Ewart plant.
On June 9, 1937, the respondent, Dodge Local 1150, the L. B. E. A.,
and the Ewart Employees Association, Inc., entered into an agree-
ment that a consent election should be held at the Dodge and Ewart
plants under the supervision of the Regional Director. Pursuant to
the agreement, elections were held on June 11, 1937. Contestants
at the Dodge plant were Dodge Local 1150 and the L. B. E. A.
Contestants at the Ewart plant were Dodge Local 1150 and the
Ewart Employees Association, Inc. At the Dodge plant, Dodge
Local 1150 was successful by a vote of 515 to 463. At the Ewart
plant the Ewart Employees Association, Inc., was successful by a
vote of 539 to 325.
A short time after the election on June 11, 1937, the membership
of Dodge Local 1150 was split up and those members who were em-
ployed in the Ewart plant organized Ewart Local 2028. The two
locals have since remained entirely separate.
Having been successful in the election at the Dodge plant, on
June 21, 1937, Dodge Local 1150 submitted to the respondent a pro-
posed contract and requested that a conference be held by the parties
to consider its terms. On June 25, 1937, the respondent posted a
notice announcing that, pursuant to the results of the election, it
recognized Dodge Local 1150 as the exclusive bargaining agency for
employees at the Dodge plant and that a conference had been arranged -
for consideration of a proposed contract submitted by Dodge Local
1150.
During the last part of June and in July and August 1937 repre-
sentatives of Dodge Local 1150 and the respondent met eight or nine
times for the purpose of considering a contract covering wages, hours,
and- working conditions. These negotiations ended September 1,
1937, when, in lieu of a contract, the respondent issued a "statement of
policy" in which it declared its recognition of Dodge Local 1150 as the
16 The complaint does not allege that the employees board at the Ewart plant or the Ewart Employees
Association , Inc., were dominated or interfered with by the respondent.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive bargaining agency for production employees at the Dodge
plant and set forth various other matters relative to the employer-
employee relationship. This "statement of policy" was accepted by
Dodge Local 1150.17
Thereafter, pursuant to the "statement of policy," grievance
committees for Dodge Local 1150 met with representatives of. the
respondent as the need arose. The respondent paid members of such
grievance committees for the time they were absent from their work
while conferring with the respondent.
On January 7, 1939, Dodge Local 1150 requested that the respond-
ent agree to a contract to replace the "statement of policy." The
respondent replied in substance that, due to the lapse of time since the
election of June 11, 1937, it would require satisfactory proof that
Dodge Local 1150 still represented a majority of the employees at the
Dodge plant before it would consider a contract. On January 14,
1939, Dodge Local 1150 filed a petition with the Regional Director
requesting an investigation and certification of representatives.18
Pursuant to the agreement of June 9, 1937, among all the parties
for the consent election held June 11, 1937, certain classifications of
employees at the Dodge plant were not entitled to vote. Employees
so excluded were all clerical employees in the shop, 'watchmen, cafe-
teria employees, and all salaried employees in the office. On June 30,
1937, the L. B. E. A., claiming to represent a majority of the above-
described employees," asked the respondent to recognize it as bar-
gaining agent for them. The respondent replied that upon satisfac-
tory proof of majority representation it would recognize the L. B.
E. A. as requested. Thereafter the L. B. E. A. submitted a list of its
members among such employees to the respondent. The list carried
an affidavit by Harold Phillips, then recording secretary of the L. B.
E. A., to the effect that the list was true and accurate.
On August 5, 1937, the respondent and the L. B. E. A. entered
into an agreement which stated in substance that, having received
proof of majority representation, the respondent recognized the
17 For the purpose , among others , of showing that its relationship with the Ewart Employees Association,
Inc , after that organization won the election at the Ewart plant, was substantially the same as its relation-
ship with Dodge Local 1150 after the latter won the election at the Dodge plant, the respondent introduced
undisputed evidence that , (1) on June 25 , 1937, the respondent posted a notice in the Ewart plant announcing
the selection of Ewart Employees Association , Inc , by a majority of the employees and announcing that a
conference had been arranged between that organization and the respondent for consideration of their future
relations ; (2) that soon thereafter the Ewart Employees Association , Inc , submitted a proposed contract
to the respondent, (3) that, although a series of conferences ensued, the parties could not agree on the terms
of a contract , and (4 ) that on August 31, 1939 , the respondent issued, and the Ewart Employees Association,
Inc , accepted, a "statement of policy" by which the respondent recognized the Ewart Employees Asso-
ciation, Inc , as bargaining agent for the employees at the Ewart plant and which contained terms similar
in many respects to the "statement of policy" which the respondent issued at the Dodge plant recognizing
Dodge Local 1150.
i6 It was this petition which gave rise to Matter of Link-Belt Company and Steel Workers Organizing Com-
mittee, Local No. 1150, Case No R-1255 See footnote 1, supra
iY Apparently Dodge Local 1150 has at no time claimed to represent employees at the Dodge plant within
the classifications set forth above -
LINK-BELT COMPANY 249
L. B. E. A. as the exclusive bargaining agent for office employees,
clerical help in the shop, watchmen, and cafeteria employees at the
Dodge -plant and that it would bargain with the L. B. E. A., upon
request, concerning the wages, hours, and working conditions of such
employees.
Between June 11, 1937, the date of the consent election, and
October 6, 1937, the L. B. E. A. continued to hold regular meetings
and to solicit members among all classes of employees at the Dodge
plant. On June 16, 1937, the L. B. E. A. elected permanent officers.
Ballard, Kepner, and Swartz were selected as trustees. Swartz
remained outstandingly active in the affairs of the organization at
least until October 6, 1937. He testified that he made various tele-
phone calls on behalf *of the L. B. E. A. These included calls to the
secretary of an employees association at the respondent's plant in
Chicago and others to Anderson, Indiana, ' the headquarters of the
National Independent Unions of America, Inc. It was largely
through Swartz's influence that the L. B. E. A. joined the above-
named organization. Swartz admitted that on occasion he advised
the L. B. E. A. in regard to information that came to him in the course
of his employment as head of the order department at the Dodge
plant.
The official minutes for the meeting of the L. B. E. A. on October
6, 1937, contain the following notation:
A motion was made and seconded to suspend dues paying and
discontinue meeting with all present members in good standing
until further notice.
Harold Phillips, who was elected recording secretary of the L. B.
E. A. on June 9, 1937, testified that after October 6, 1937, the L. B.
E. A. held no more meetings in 1937 and that it held none in 1938.
The organization did not, however, disband. According to Phillips,
the L. B. E. A. held a meeting in February 1939 before the hearing
on the representation case at the Dodge plant.20 The history of the
L. B. E. A. since that time does not appear in the record.
Summing up, the evidence shows that on or about July 1933 the
respondent initiated and sponsored the Employees Board, and that
until April 1937 it dominated, contributed to the support of, and
interfered with the administration of the Employees Board. At a
regular meeting of the Employees Board on April 16, 1937, a majority
of its members, including Roy M. Swartz, a supervisory employee of
the respondent, established the L. B. E. A. During part of this
meeting four important executives of the respondent were present and
participated in the discussion concerning formation of the L. B. E. A.
They not only indicated their approval of its organization, but, in
effect, ratified the action taken in establishing it by a majority of the
20 Matter of Link-Belt Company and Steel Workers Organizing Committee, Local No. 1150, Case No. R-1255.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Employees Board. There is no showing on the record
that the respondent at any time officially informed its employees at
the Dodge plant that the Employees Board was dissolved, that it had
withdrawn or was withdrawing its recognition of the Employees Board,
or that it had ceased or was ceasing to contribute to the support of and
to participating in the administration of the Employees Board."
Tile effect of the foregoing was to closely identify the L. B. E. A.
with the Employees Board. On May 5, 1937, Swartz learned that
Dodge Local 1150 had on the previous day requested a meeting with
the respondent for the purpose of negotiating an agreement. On
May 10, 1937, prior to any compliance with the request of Dodge
Local 1150 to meet and confer, the respondent concluded an agree-
ment with the L. B. E. A. granting it recognition as the exclusive
bargaining agent of the employees at the Dodge plant. This agree-
ment, based upon flimsy proof of majority representation by the
L. B. E. A.,22 was, under the circumstances, negotiated with excessive
ease and inordinate haste.23 Despite his position as head of the order
department at the Dodge plant, Swartz was a leading figure in the
administration of the Employees Board between January and April
1937, in the formation of the L. B. E. A. in April 1937 and hi its
administration thereafter, and in the negotiation of the recognition
agreement of May 10, 1937. The respondent at all times acquiesced
in, indicated its approval of, and, in effect, ratified the energetic action
of Swartz on behalf of the Employees, Board and the L. B. E. A.
All of the foregoing, as well as the statements hostile to Dodge Local
1150 made by various foremen and the refusal by Maxwell and
Loughery on May 1, 1937, to investigate reasonable charges that
persons acting on behalf of the L. B. E. A..were violating the respond-
ent's rules against union activities by any organization on its time or
premises, clearly reveal a marked disparity in the treatment accorded
the L. B. E. A. and Dodge Local 1150 by the respondent.
We find that after July 5, 1935, the respondent dominated, and
interfered with the administration of the Employees Board and con-
21 Westinghouse Electrical Manufacturing Company v . N L R. B, decided June 10, 1940, 112 F (2d) 657,
(C C A. 2) 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 See also Newport News
Shipbuilding & Dry Dock Co et at v N L R B, 308 U S 241 , reversing modification of Board's order in
Newport News Shipbuilding & Dry Dock Co , et al . v. N L R B , 101 F (2d) 841 (C C. A 4), enf'g, as
modified, Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine
and Shipbuilding Workers of America, 8 N L R B 866
ii See footnote 14, supra
23 Cf Hamilton-Brown Shoe Co v N L R B, 104 F (2d) 49 ( C. C. A. 8), enf'g as modified Matter of
Hamilton-Brown Shoe Co. and Local No 125 United Shoe Workers of America, C 1 0 , 9 N. L R B. 1073;
International Association of Machinists , Tool and Die Makers Lodge No. 35, affiliated with the I. A. M. v.
N L R B 110 F (2d) 29 (C A D C ) aff'g Matter of The Serrick Corporation and International Union,
United Automobile Workers of America, Local No 459, 8 N L R B 621, Bert granted, 311 U S 72, N. L
R B v National Motor Bearing Co , 105 F (2d) 652 (C C A 9), enf'g as modified , Matter of National Motor
Bearing Co and International Union United Automobile Workers of America, Local No 76, 5 N L R. B
409, N L R B v: Swift & Co., 106 F. (2d) 87 (C C A. 10), enf'g as modified, Matter of Swift & Co. and
Amalgamated Meat Cutters and Butcher Workmen of North America , Local No . 641, et al , 7 N . L R B. 269.
LINK-BELT COMPANY 251
tributed support thereto and thereby also interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
On the basis of all the evidence we find that the respondent domi-
nated and interfered with the formation and administration of the
L. B. E. A. and contributed support thereto and thereby also inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The alleged discriminatory discharges and refusals to reinstate at the
Ewart plant
The complaint, as amended, alleges that during December 1937
and January 1938 the respondent discharged the following five em-
ployees from its Ewart plant on the dates named, and thereafter
refused to reinstate them, because of their union activities: Andrew
Fink on January 6, 1938; James Mason on January 6, 1938; -Carl E.
Hyatt on December 3, 1937; Raymond Morris on January 7, 1938;
and O. N. Wiseman on January 5, 1938.
The respondent denied that it had discriminated against these five
employees and alleged (1) that Fink, Mason, and Hyatt were laid off
because of a reduction in the working force due to a shortage of work;
(2) that Morris was discharged because of his incompetency and
inefficiency as a workman; and (3) that Wiseman was discharged
because of an unwarranted and unprovoked assault which he made
upon a fellow employee.
According to the undisputed testimony of R. C. Becherer, shop
superintendent at the Ewart plant, in November 1937 there were 1182
employees in the Ewart plant. About 600 or 650 of these were em-
ployed in the foundry, and the remainder in what is termed the
manufacturing unit. Due to curtailed orders and generally slow
business conditions, in November and December of 1937 and- in
January 1938 the respondent discharged or laid off a total of 215 em-
ployees from the manufacturing unit of the Ewart plant. Of these,
five, hereinafter discussed, are named in the complaint.
Andrew Fink and James Mason. Fink was employed by the respond-
ent between 1917 and about November 1919 and again from 1920 to
the latter part of 1923 or the first part of 1924. The respondent hired
him again in December of 1928 after which he worked continuously
until he was laid, off on January 6, 1938. All of Fink's employment
with the respondent was in the Ewart plant and for the most part in
department 1200 of that plant as a chain assembler.
Fink joined Dodge Local 1150 in January 1937 when it admitted
to membership employees at both the Dodge and Ewart plants. On^
or about June 1937 when Ewart Local 2028 was established he became
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member and was thereafter elected a trustee, a position he held at
the time of his lay-off.
Mason was hired by the respondent in May 1929 as a chain assembler
in department 1200 of the Ewart plant and was so employed, for the
most part in the same department, until he was laid off on January 6,
1938. He became a charter member of Dodge Local 1150 at the time
of its formation on or about December -1936 and served as a -trustee
and member of its shop committee. In the latter capacity he was
present on several occasions when the committee met with respresen-
tatives of the respondent during the spring of 1937. Later, when
Ewart Local 2028 was formed, Mason became a member and served
on its grievance committee.
Both Fink and Mason on occasion worked in departments 1100 and
2000 although, as stated, the major part of their time was spent in
department 1200. The foreman of all three departments was Leo
Bullock.
Bullock testified that at the end of 1937 there were 58 men and 4
women employed in departments 1100, 1200, and 2000. The work
required of the departments slackened in the middle of December
1937 and Bullock conferred with Becherer concerning the need for
making some lay-offs. The two men decided to defer action until after
the Christmas and New Year holidays. They conferred again during
the first week in January 1938 and determined to lay off four or five
men from department 1200. In making their selections they con-
sidered the seniority, ability, and suitability of all persons in the
department. Bullock's testimony, as herein recounted, was confirmed
by that of Becherer.
On January 6, 1938, Bullock laid off Fink, Mason, Kenneth Kimball,
and David Hillman. On January 7, 1938, Bullock laid off Carl J.
Bates. Kimball, Hillman, and Bates were not named in the com-
plaint. Bates was then president of the Ewart Employees Associa-
tion, Inc. The five men named above were junior in seniorty in de-
partment 1200, the average length of service there being about 17
years. Up to the time of the hearing, none of the five had been rehired
nor had the respondent employed anyone in department 1200 having
less seniority than Fink and Mason at work which the two men were
qualified to perform.24
Soon after they were laid off both Fink and Mason protested to
Becherer. The latter told them that they had been laid off because
of lack of work and that seniority had been followed in selecting them.
24 One Dominic Moran, hired by the respondent on August 23, 1929, was listed as an employee assigned
to department 2000 at the time Fink and Mason were laid off and thereafter He worked in both depart-
ments 2000 and 1200 after January 8 , 1938 , as a tester determining the strength rating of chain. This was a
Job requiring special mathematical skill which neither Fink nor Mason had ever performed and for which
they were not qualified . Moran was the only man junior in seniority to Fink and Mason to be employed
at any type of work in department 1200 after the respondent laid off the latter two men.
LINK-BELT COMPANY 253
They also spoke with F. S. O'Neil, manager of the Ewart plant, and
urged that the seniority of men in departments 1100, 1200, and 2000
combined should be considered in making lay-offs from any one of
the departments. O'Neil told them that the work of the three de-
partments differed so greatly that this could not properly be done.
Both Fink and Mason testified that persons were retained in de-
partments 1100 and 2000 who had less seniority on a plant-wide basis
than did they and also that in 1931 when work had been slow at the
Ewart plant the respondent had shortened hours rather than making
lay-offs. The respondent introduced substantially undisputed evi-
dence that in general the work in departments 1100 and 2000 required
a much higher degree of skill than Fink and Mason were accustomed
to use in their work in department 1200 and that the only employ-
ment the two men had in departments 1100 and 2000 had been for
short periods on special jobs which were comparatively easy. The
respondent admitted that in 1931 it had attempted to avoid making
lay-offs by shortening hours. Witnesses for the respondent testified
that its experience in following that practice had been highly unsatis-
factory and that, in view of social security and unemployment com-
pensation laws subsequently enacted to carry employees over periods
of enforced idleness, it no longer felt that the policy of 1931 was
necessary or desirable.
Bullock testified that he knew that Mason and Fink had once been
members of a union connected with the C. I. O. but alleged that he
knew nothing of their union activities since the last of August 1937
when the Ewart Employees Association was recognized in the respond-
ent's "statement of policy" as the representative of employees at
the Ewart plant. Both Bullock and Becherer denied that they were
motivated by any consideration of the union activities of Fink and
Mason in laying them off or in having failed to reinstate them.
At the time of the hearing, there were 49 men and 4 women em-
ployed in departments 1100, 1200, and 2000. A number of the
employees in departments 1100 and 2000 who had less seniority on a
plant-wide basis than did Fink or Mason, but whose employment
continued after Fink and Mason were laid off, were themselves laid
off later in the spring of 1938. Some of them were rehired in 1939.
We find that the evidence does not sustain the allegation of the
complaint that the respondent discharged and refused to reinstate
Andrew Fink or James Mason because of their union activities.
Carl E. Hyatt was employed by the respondent for about 6 months
in 1935 at the Dodge plant, after which he quit. The respondent
rehired Hyatt at the Ewart plant on February 17, 1936, as, a tool
maker and die repairer.
During the organization of Dodge Local 1150, Hyatt was active in
soliciting members. He was elected treasurer and served in that
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capacity until June 1937. When Ewart Local 2028-was established
at'the Ewart plant, its members ' elected Hyatt president , a position
he held at the time he was laid off. At various times Hyatt served
upon committees which met and conferred with representatives of the
respondent.
The foreman of the tool room where Hyatt worked was Homer
Jeffras. Hyatt testified that shortly before the election on June 11,
1937 , at a time when he was very 'active in soliciting members for
Dodge Local 1150, Jeffras told him that he "had better watch his
step in signing those cards up"; that the Company was watching
him. Soon thereafter , according - to Hyatt, Jeffras again approached
him and told him to stay out of the foundry and other departments
than his own and to stop talking so much around the plant. Jeffras
testified that about June 1937 he had cautioned Hyatt several times
about leaving his work to go to various parts of the plant to converse
with other employees. Jeffras alleged that he did not know what
Hyatt spoke about with the other men but that his frequent conversa-
tions at that time in all parts of the plant during working hours inter-
fered with the work of all concerned . Hyatt admitted that in June
1937 he solicited for membership in Dodge Local 1150 in all parts of
the- plant, but alleged that he did so only during the noon hour and
after work . Since Hyatt was employed by the respondent for about
6 months after the above -discussed incidents we do not feel that
it is necessary to resolve the conflict between Hyatt 's and Jeffras'
testimony.
On December 1, 1937, there were 24 men employed in the tool room
at the Ewart plant. According to both Becherer and Jeffras, at
that time the amount of work to be done in the tool room was dimin-
ishing • and, after conferring on the matter , the two men decided to
lay off the six men junior in seniority in the department . In reaching
this decision they considered the qualifications and ability , as well as
the seniority, of all men concerned. At that time the six men junior
in seniority in the tool room, listed in an ascending order of seniority,
were McMillan, McClintoch, Schmidt, Wallace, Hyatt, and Klepfer.
On December 3, 1937, pursuant to the decision he and Becherer had
reached, Jeffras laid off each of the above six men. In so far as the
record shows , all of them were members of Ewart Local 2028, since
Hyatt testified that he had signed up all the men in the tool room.
Hyatt was the only one of the six ' who was named in the complaint,
as amended . Hyatt testified that, upon laying him off, Jeffras told
him that his work had been good and that he hoped to be able to
recall both Hyatt and McMillan soon . According to both Jeffras
and Becherer , an added factor in their selection of Hyatt to be laid
off was that he had been employed for the most part in repairing and
LINK-BELT COMPANY 255'
overhauling a- particular type of die used by the respondent. This
work was completed about December 1, 1937.
In view of the undisputed testimony that the respondent needed
to reduce its force at the time under consideration, and on the basis
of the foregoing, we find that the evidence is insufficient to show that
the respondent discharged or laid off Hyatt on December 3, 1937, be-
cause of his union activity.
Soon after December 3, 1937, Hyatt called upon Becherer and
told him that he was able to do any type of work in the tool room.
Hyatt testified that Becherer replied, "I know you can Hyatt, but we
ain't taking nobody on at present." , A short time after Januray 6,
1938, when. Andrew Fink and James Mason were laid off, Hyatt
accompanied the two men when they went to see F. S. O'Neil, manager
of the Ewart plant. Hyatt started to present their grievance to O'Neil
and the latter refused to listen to him. O'Neil testified that he told
Hyatt at the ,time that he saw no reason why he should speak to him,
that he had not been on the pay- roll for over, a month and had no
grievance of his own. O'Neil then spoke with Fink and Mason.
On February 14, 1938, the respondent rehired Wallace and McMillan
two of the men laid off on December 3, 1937. It also notified Schmidt,
a tool grinder, to come back to work. He failed to do so. As compared
with Hyatt's seniority which dated from February 17, 1936, Wallace
had seniority dating from May 5, 1936, and McMillan had seniority
dating from September 9, 1937. Upon hearing that Wallace and
McMillan had returned to work, Hyatt went to see Jeffras and asked
to be reemployed. Accounts given of this interview by both Jeffras and
Hyatt agree substantially that the former told the latter that McMillan
and Wallace had come back on jobs paying less than the work to which
Hyatt was accustomed and that there would probably be work for
him soon. Jeffras testified that Hyatt remarked, "I don't want their
jobs, I don't want anybody's job. I want my job." Hyatt did not
deny this testimony.
Jeffras explained that the respondent had called McMillan and
Wallace back because they were tool grinders and that it had at the
time a special need for that type of workman. McMillan was better
qualified as a tool grinder than was Hyatt and Wallace was an 'ap-
prentice who worked at a much lower rate of pay than Hyatt was
accustomed to receiving. Prior to his lay-off the respondent paid
Hyatt 96 cents an hour. McMillan was rehired at 86 cents an hour
and Wallace at 50 cents an hour. Jeffras testified that he did not
believe that Hyatt would have wanted to return to work at either the
jobs or the rates of pay given McMillan and Wallace and that, at the
time, he thought business would pick up enough to permit him to
recall Hyatt within a few weeks. This did not prove to be 'the case
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Hyatt was not recalled. At the time of the hearing there were 19
men employed in the tool room at the Ewart plant. The only ones
having less seniority than Hyatt who worked there at any time after
he was laid off were McMillan and Wallace, discussed above.
We find that the evidence is insufficient to show that the respondent
refused to reinstate Hyatt because of his union activities.
Raymond Morris was hired by the respondent on June 28, 1934, at
the Ewart plant for work in the stock room. In March 1935 he was
transferred to department 700 where he worked as a bench hand on a
piece-work basis until January 7, 1938, when he was "released." 25
Morris joined Dodge Local 1150 in May 1937 and wore his union
button while at work. His membership was transferred to Ewart
Local 2028 upon its formation and in September 1937 he was elected
financial secretary of that local. He solicited for membership in
Ewart Local 2028 among the other employees.
The foreman of department 700 was Cnester Dickerson. Dickerson
testified that at the first of January 1938 there were 43 employees in his
department. The amount of work required of the department was
diminishing so Dickerson conferred with Becherer and the two men
decided to reduce the force by three men. Those selected to go were
Morris, Frank Rairdon and Clarence Townsend. On January 7, 1938,
Dickerson discharged or released these three men. Rairdon and
Townsend are not named in the complaint.
Dickerson and Becherer testified that when Morris was first
employed by the respondent his work was satisfactory, but that in the
last months of 1937 his entire attitude had changed and that he had
become inefficient and insubordinate and that he habitually came to
work late and left early. The respondent introduced undisputed
evidence that during the period of 15 weeks from October 2, 1937 to
January 7, 1938, Morris' department worked 599 hours. -Although
Morris could have worked all this-time, he worked only 526 hours,
thereby losing 73 hours in 15 weeks at a time when he was neither ill
nor on vacation. Morris' average earnings during the same -period,
computed on a piece-work basis, were equivalent to 75 cents per hour
while the average of all those in his department computed on the same
basis, was 85 cents an hour. The above, and other, evidence concern-
ing Morris' alleged habitual tardiness and inefficiency is convincing.
It is the respondent's contention that Morris was selected for release
because of such tardiness and inefficiency.
After January 7, 1938, Morris applied to Becherer to see if he
could get his job back. Becherer refused. At the time of the hearing
there were 33 employees in department 700 of the Ewart plant.
2i Morris' "Employees Separation Report ," a card prepared at the time his employment with the respon-
dent ended, states that he was "released " because of a reduction in the force . Witnesses for the respondent
testified that a "release" had the same effect as a discharge and was simply a "more polite " form of severing
the employer -employee relationship
LINK-BELT COMPANY 257 ,
We find that the evidence is insufficient to show that the respondent
discharged and refused to reinstate Morris because of his union
activity.
0. N. Wiseman's only employment with the respondent was from
April 1936 to January 5, 1938, as a chain assembler in department 2000
of the Ewart plant. He. joined Dodge Local 1150 about January 1937
and in June 1937 he became a member of Ewart Local 2028. His
union activities were confined to attending meetings and wearing his
union button.
The evidence, which need not be set forth in detail, establishes
that on the morning of January 5, 1938, the day of his discharge;
Wiseman engaged in a fight with Sam Pleasant, a fellow employee, in
the course of which Wiseman struck Pleasant several times with a
hammer and Pleasant swung at, but missed, Wiseman with a shovel.
The fight was immediately investigated by Bullock, the foreman of
department 2000, and Becherer, the shop superintendent. They
determined, apparently with good reason, tnat Wiseman had provoked
the fight and Becherer discharged him soon after the cessation of,
hostilities. Although Wiseman subsequently asked Becherer for
"another chance," the latter refused.
We find that the evidence is insufficient to show that the respondent
discharged and refused to reinstate Wiseman because of his union
activities.
D. The alleged discriminatory discharges and refusals to reinstate in
department 229 of the Dodge plant
The complaint, as amended, alleges that on June 22, 1937, the
respondent discharged the following 13 named employees from its
Dodge plant, because of their union activities: Leora Buchanan, Mary
Camden, Frances Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison,
Ruth Wilson Lamaster, Leona Lewis, Margaret Linder, Bernice Lindsey,
Rosa Markley, Phyllis O'Neill, and Zetta Sylvester.
The complaint, as amended, further alleges that some of these
employees were subsequently reinstated and thereafter again discrim-
inatorily discharged by the respondent as follows:
Name DischargedReinstated
Leora Buchanan_________________________ October 20 , 1937_______________________ January 4, 1938 iBertha Dillon ___________________________ September 16, 1937 ____________________
October 24, 1938 _______________________
November 4, 1937.
Naomi Dillon --------------------------- September 16, 1937____________________ November 4, 1937.
October 27 , 1938_______________________ December 8, 1938
Ruth Wilson Lamaster __________________ October 27, 1938_______________________ December 8, 1933
Leona Lewis ---------------------------- October 20, 1937_______________________ November 4, 1987.
Margaret Linder________________________ October 27 , 1938_______________________ December 8, 1938.
Phyllis O'Neill-------------------------- October 27, 1938_______________________ December 8, 1938.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint, as amended, also alleges that the respondent has
refused, because of their union activity, to reinstate the above-
named individuals whose employment has been terminated.
The respondent denied that it had discriminated against the
above 13 employees and alleged that their employment had been
terminated on the various dates given because of a reduction in
working force made necessary by curtailed orders for the products
produced by the respondent.
Department 229 at the Dodge plant is engaged in various stages of
assembling and inspecting chain. During the week ending June 19,
1937, there were in the department 209 employees, of whom approxi-
mately 150 were women engaged in the same general classifications
of work as were the 13 women named in the complaint. Charles
Rothman has been foreman of department 229 since 1920.
The respondent introduced extensive and detailed evidence, which
was substantially undisputed, to show that in the spring of 1937
orders for the respondent's products were cancelled by several im-
portant customers and that, due to this 'and other business factors,
it became necessary in June to curtail employment in department
229. Rothman, W. H. Maxwell, superintendent of the plant, and
C. V. Loughery, manager of the plant, conferred at various times con-
cerning the conditions mentioned above. In June they decided that
approximately 50 women should be laid off. Pursuant to this decision,
on June 22, 1937, Rothman laid off 33 women, including the 13 named
in the complaint, and on June 23, 1937, he laid off an additional
10 women. According to Rothman, some were laid off a day later
than others in order to permit them to complete the jobs upon which
they were then at work. The selection of those to be laid off was
made by Rothman and it is undisputed that he personally told each
one of the 43 women selected that she was laid off due to lack of work.
All of the 13 women, alleged in the complaint to have been dis-
criminatorily discharged on June 22, 1937, testified at the hearing
that they joined Dodge Local 1150 in February, March, or April of
1937. Some of them testified that they wore their union buttons in
the plant and solicited for members outside of working hours. Ap-
parently the only one of the 13 who was outstandingly active on
behalf of Dodge Local 1150 was Frances Cox, who was its recording
secretary and a member of its negotiating committee. Various ones
of these 13 women testified that during the period shortly before the
election of June 11, 1937, discussed in a previous section, certain of
the men employees in department 229 and group leaders, who had
minor supervisory authority, made statements to them antagonistic
to Dodge Local 1150, or asked them to join the L. B. E. A. Naomi
Dillon testified that about June 1, 1937, she approached Rothman
to ask him if she might be shifted to a different department and that
LINK-BELT COMPANY 259
he answered her, "Well, if you don ' t drop the union you are going
to lose your job." Rothman d'enied having made this statement
or any like it. All 13 of the women testified that they had been laid
off, rather than discharged as alleged in the complaint.
. Apparently the 13 women named in the complaint were the-only
members of Dodge Local 1150 among the 43 women laid off on June
22 and 23, 1937 . It is undisputed that shortly after June 23, 1937,
Roy Swartz went to Rothman and complained that 27 members of
the L. B. E. A. had been selected for lay-off. Subsequently , grievance
committees from both the L. B. E. A. and Dodge Local 1150 went
to see Maxwell and complained to him that their members had-been
discriminatorily laid off.
Rothman, who made the selection of those to go, testified that
he did so on the basis of the following 22 factors : natural ability,
speed, accuracy and efficiency , business -like attitude , observance of
company rules , versatility , ability to get along with other employees;
health, physique , age, sex, domestic and marital status, mental
attitude, morals, . previous service ,' length of continuous service,
tendency to quit, necessity for supervision, conduct outside of the
plant, education , supervisory possibilities , and honesty . These 22
factors were developed and used only by Rothman and do not repre-
sent any established rule of the respondent . They had not been
reduced to writing prior to the hearing . In applying the factors
mentioned, Rothman relied upon his knowledge of the employees
gained through his daily contact with them and from information
obtained through conversations with his assistants . Rothman
testified in great detail concerning his reasons for selecting for lay-
off the 13 women named in the complaint. In addition , he compared
these 13 women in respect to suitability for employment with other
women, junior in seniority to them, whom the respondent employed
at various times after June 22, 1937 . The attorney for the Board
cross-examined -Rothman closely concerning his ratings of employees
as made at the bearing and as made by him on separation reports
which he filled out shortly after making the lay -offs. Although
there are various inconsistencies between Rothman's detailed testi-
mony at the hearing and his general and incomplete ratings and com-
ments on the separation reports, the Trial Examiner found that he
selected those to be laid off -on a non-discriminatory basis.
It appears that in point of seniority , which was only one of the
factors Rothman allegedly took into consideration , the 13 women
named in the complaint were well below the average of all the women
employed in department 229.
In summary, the available evidence concerning the lay-offs of June
22 and 23, 1937 , indicates that an extensive reduction in the number
of employees in department 229 was, from the standpoint of the
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, advisable for legitimate business reasons. The testimony
of the 13 women whose cases are under consideration makes little, if
any, showing that Rothman had a discriminatory intent toward them
because of their membership in and activities on behalf of Dodge
Local 1150. Apparently he laid off more members of the L. B. E. A.
than of Dodge Local 1150. Though not consistent in all details,
Rothmdn's testimony concerning the reasons for his selections is not
substantially contradicted and is generally credible. The respondent
subsequently rehired 8 of the 13 women alleged to have been discrim-
inated against. On the basis of the foregoing, we find that the evidence
does not sustain the allegation of the complaint that, on June 22, 1937,
the respondent discharged Leora Buchanan, Mary Camden, Frances
Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison, Ruth Wilson
Lailiaster, Leona Lewis, Margaret Linder, Bernice Lindsey, Rosa
Markley, Phyllis O'Neill, Zetta Sylvester, or any of them, because of
their union activities.
Between June 23, 1937, and the time of the hearing the respondent
hired no new female employees in department 229. Of the group of
43 laid off on June 22 and 23, 1937, 21 have at various times been
recalled to work. Of the 13 women named in the amended complaint,
8 have, on one or more occasions, been recalled by the respondent,
and 4 of the 8 were employed at the time of the hearing.21 There is
but little evidence concerning the lay-offs after June 22, 1937, of those
women who had originally been laid off on that date and subsequently
rehired and laid off again. None of the available evidence concerning
such lay-offs tends to show that they were made on a discriminatory
basis., Likewise, in view of our finding that their original lay-offs were
not discriminatory and the fact that the respondent had, up to the
76 The parties stipulated that the following employees had since June 22, 1937, been reinstated and laid off
as follows
Name Reinstated Laid off
Leora Buchanan__________________ October 20, 1937_______________________ January 1, 1938.
Bertha Dillon_____________________ September 16,1937____________________
October 24,1938______________________
November 4, 1937.
Naomi Dillon_____________________ September 16,1937____________________ November 4, 1937.
October 27,1938_______________________ December 8, 1938.
Ruth Wilson Lamaster____________ October 27, 1938_______________________ December 8, 1938.
Leona Lewis______________________ October 10,1937_______________________ November 4, 1937.
October 27,1938_______________________ December 8, 1938
Margaret Linder__________________ August 26, 1937________________________ November 3, 1937.
Phyllis O'Neill _-__________________ October 27, 1938_______________________ December 8, 1938
The respondent sent a notification to Zetta Sylvester to return to work on October 25, 1938, but due to
a change in her address she did not receive the message Zetta Sylvester, however, was reemployed by the
respondent immediately prior to the hearing, as were Phyllis O'Neill, Bertha Dillon, and Ruth Wilson
Lamaster
The respondent has not reemployed Mary Camden, Rosa Markley, Frances Cox , Bertha Harrison, or
Bernice Lindsey
LINK-BELT COMPANY 261
time of the hearing, hired no new female employees, there is no showing
that the respondent's failure to recall 5 of the 13 women named in the
complaint for work after June 22, 1937, was discriminatory.
We find that the evidence is insufficient to show that the respondent
refused at any time to reinstate Leora Buchanan, Mary Camden,
Frances Cox, Bertha Dillon, Naomi Dillon, Bertha Harrison, Ruth
Wilson Lamaster, Leona Lewis, Margaret Linder, Bernice Lindsey,
Rosa Markley, Phyllis O'Neill, and Zetta Sylvester, or any of them,
because of their union activities.
We further find that the evidence is insufficient to show that the
respondent terminated the employment of Leora Buchanan, Bertha
Dillon, Naomi Dillon, Ruth Wilson Lamaster, Leona Lewis, Margaret
Linder, and Phyllis O'Neill, or any of them, after June 22, 1937,
because of their union activities.
E. The alleged discriminatory lock-out in the heat-treat department of
the Dodge plant
The complaint, as amended, alleged that on or about November 18,
1938, the respondent locked out and laid off the following named
employees in the heat-treat department of the Dodge plant because
of their union activities: Louis Albrecht, James Gaughan, Donnell
Haymaker, Russell Hopper, William Lukins, Boris Palachoff, William
Proctor, Curtis Reynolds, Clyde Rodenberg, Conrad Schroeppel, Louis
Scott, and David Thomas.
The respondent alleges in its answer that the heat-treat department
was temporarily shut down at the time alleged because certain mem-
bers of Dodge Local 1150 had prevented the foreman on the third
shift from entering the plant and because the respondent anticipated
the use of violence and illegal acts on the part of the said employees
against the premises and property of the respondent.
The parties agreed at the hearing substantially as follows: (1) that
on the night of November 18, 1938, the 12 employees alleged to have
been locked out reported for work on the third shift of the heat-
treat department of the Dodge plant and started to work; (2) that
after they had worked 1 or 2 hours, the night foreman, Louis Rayman,
told them to go home; 27 (3) that they left the plant and were sub-
sequently paid by the respondent for the time they had worked on
the shift but were not paid for the remainder of the 8 hours; (4) that
with the exception of William Proctor, all of them had participated in
the strike which occurred at the Dodge plant on October 4 and 5,
1937; (5) that there was no regular work for this shift on Saturday or
Sunday, November 19 and 20, 1938, but at midnight on Monday,
27 Aside from Frank Feist and the 12 men named In the complaint, there were either three or four ad-
ditional regular employees on the third shift of the heat-treat department in November 1938. These were
laid off by the respondent at the same time and for the same period as were the 12 men named in the
complaint.
323429-42-vol. 26-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 21 , 1938, all 12 employees named reported for work and
worked their regular shift , which was from midnight to 8:00 a. m.,
and that the time lost to them due to the shut-down complained of
was approximately 634 hours; (6) that the heat-treat department was
open on Saturday, November 19, 1938, for any regular operations
necessary , and a small number of employees from each of the three
shifts worked during that day; and (7) that each one of the 12 em-
ployees named in the complaint was an employee of the respondent
and a member of Dodge Local 1150 at the time of the shut-down.
By way of explanation of its action in closing the heat -treat depart-
ment shortly after midnight during the morning of November 19,
1938, the respondent introduced considerable evidence concerning a
strike which occurred at the Dodge plant on October 4 and 5, 1937:
It is undisputed that on October 4 , 1937, about 10:00 a. in., the first
shift in the heat-treat department went on strike over an alleged
grievance which is not directly involved here. Instead of leaving
the department after going on strike the men in the heat-treat depart-
ment stayed inside. Upon the arrival of the second and third shifts
at 4:00 p. in. and midnight, respectively, they joined the strike and,
like the men on the first shift, stayed inside the plant. During the
day the plant was shut down because of the strike. The strikers
closed the doors and gates of the plant and stationed men at various
positions to prevent others from going to work . They permitted
Maxwell and other officials of the respondent to enter and leave the
plant freely. The strikers did no physical damage to the property of
the respondent nor did they commit acts of violence against other
persons. Apparently , however, some of them were armed with clubs
of various sorts. It appears that most of the strikers were members
of Dodge Local 1150. The strike was settled on October 5, 1937,
after the respondent had agreed to a settlement favorable to the strikers
of the grievance which was the immediate cause of the strike.
C. V. Loughery, manager of the Dodge plant, testified that on
November 2, 1938, at a metting with the grievance committee of
Dodge Local 1150, he refused a request of the committee to grant a
closed shop and a check-off system. According to Loughery, Jordan,
the chairman of the committee , then told him that Dodge Local 1150
would take steps to compel everyone in the plant to join.
The respondent contends , in substance , that its action in closing
the heat-treat department must be considered in the light of the
events described above and other similar events, as hereinafter
discussed.
The heat-treat department is engaged in hardening various metal
parts by treatment in furnaces . For reasons of efficiency it operates
on a 24-hour schedule with three shifts of employees. The first
shift works from 8:00 a . in. to 4:00 p. in ., the second shift, from 4:00
LINK-BELT COMPANY 263
p. in. -until midnight, and the third shift, from midnight until 8:00
a. in. James Duncan is foreman of the entire department. Under
Duncan are Gordon Shedd, supervisor of the first shift, Willard
Thomas, supervisor of the second shift, and Frank Feist, supervisor
of the third shift. Apparently there are between 15 and 25 employees
on each of the three shifts.
On Friday, November 18, 1938, William Trent; an employee on the
second shift of the heat-treat department, obtained permission from
his supervisor, Willard Thomas, to leave the department for a few
minutes between 6:00 p. m: and 7.00 p. in. to speak with Frank Feist,
supervisor of the third shift. Feist's home was only a few blocks
from the plant. Trent testified that at about 6:30 p. in. he saw Feist
at the latter's home and induced him to sign a membership application
card in Dodge Local 1150. Feist testified that he did not wish to sign
and that he agreed to do so only after Trent had told him that if he
did not the men would not permit him to enter the plant at midnight
when his shift started. Trent denied that he so threatened Feist.
Under the circumstances we do not consider it necessary to resolve
this conflict in the testimony.
After signing the card Feist, without telling anyone of what he had
done, went to a bowling alley where he stayed until about 11:00 p. in.
He testified that while there he decided that he had made a mistake
in signing the membership application card for Dodge Local 1150.
Shortly after 11:00 p. in. he went to the plant and found several men
congregated around the entrance he customarily used. He asked one
of them, Archie Renner, to go inside and ask Trent to come out.
Renner returned with Trent after a few minutes. Feist asked Trent
to walk a short distance from the plant and, this done, told him that
he had changed his mind and that he wished Trent to destroy the
membership application card he had signed. Trent agreed to do so.
According to Feist he then went to his home, changed to his work
clothes, and at about 11:45 p. in. returned to the plant where he
found a crowd of about 10 to 14 men gathered around the entrance.
Some one in the crowd asked Feist if he had signed a card. Feist
replied that he had not and testified that the unidentified person then
called out, "Well, you can't get in tonight." Although there is con-
siderable conflicting testimony concerning what various persons in
front of the plant gate said to Feist on this occasion it seems clear that
he did get the impression, whether justified or not, that the men
would not let him enter for the reason that he told them he had not
signed a card applying for membership in Dodge Local 1150.
The heat-treat department was the only department at the Dodge
plant operating three shifts and at midnight there were no important
supervisory officials of the respondent present.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Immediately after encountering the group of men at the plant gate,
Feist crossed the street to a tavern and telephoned to James Duncan,
general foreman of the heat-treat department, at the latter's home,
telling him only that the men would not let him in. Duncan told
Feist to wait until he could get to the plant. Duncan testified that
as soon as he heard from Feist he telephoned to W. H. Maxwell,
superintendent of the Dodge plant, and repeated what Feist had stated
to him. Maxwell told Duncan to go to the plant and, if he found
Feist's story to be true, to close the department down for the night. .
At about 12:15 Duncan arrived near the front of the plant where he
met Feist. The latter explained to Duncan that the men would not
let him (Feist) enter unless he joined Dodge Local 1150. Duncan
entered the plant where he found the third shift of the heat-treat
department at work under the supervision of Willard Thomas, super-
visor of the second shift. Both Thomas and Louis Rayman, the
general night foreman, told Duncan that the men had refused to let
Feist in. Duncan then gave orders to close the department down and
Rayman and Thomas so informed the men on the third shift. Since
it required some time to take out material which was then in the
furnaces, the department was not actually closed until about 1:30 a. m.
.Louis Rayman testified that about midnight he had noticed that
there were cars parked in such a way as to block the entrance to the
plant parking lot and that an unusually large crowd of men was
gathered near the plant entrance. He telephoned this information
to Maxwell. Maxwell confirmed the testimo-Tly of Duncan and
Rayman concerning the telephone calls they made to him. He testi-
fied that during November 1938, Dodge Local 1150 had been conduct-
ing an intensive organizing campaign and that there were many
rumors which reached him from the plant to the effect that a sit-down
strike was impending. It was due to his desire to avoid such a strike
that he directed Duncan to close the heat-treat department if he
should find that Feist had been kept out of the plant. Duncan
testified that he ordered that the department be closed pursuant to
Maxwell's instructions because of the absence of Feist, the supervisor
of the third shift, and also because of his fear that there might be
another strike similar to that of October 1937.
As previously stated, there were no regular shifts for work in the
heat-treat department during Saturdays after 8:00 a. m. or during
Sundays. The shift which was closed down at about 1:30 a. m. on
Saturday, November 19, 1938, was the last regular shift of the week.
On the following Monday, work was resumed as usual.
We find, on the basis of the foregoing, that the respondent closed
the heat-treat department on the morning of November 19, 1938, for
lawful reasons and in order to protect its legitimate interests.
We find that the respondent did not lock out and lay off Louis Al-
LINK-BELT COMPANY 265
brecht, James Gaughan, Donnell Haymaker, Russell Hopper, William
Lukins, Boris Palachoff, William Proctor, Curtis Reynolds, Clyde
Rodenberg, Conrad Schroeppel, Louis Scott, and David Thomas on
or about November 18, 1938, because of their union activities.
F. The alleged discriminatory lay-offs on November 22, 1938
The complaint, as amended, alleges that on November 22, 1938,
the respondent laid off for a period of 5 days the following four em-
ployees at its Dodge plant because of their union activity: Basil V.
Booher, Walter Craigle, William Trent, and Talmage Hooper.
The respondent denied that it had discriminated against these
four employees and alleged that they were laid off because of willful
violation of the respondent's rules and regulations.
Booher has been employed in the tool room of the Dodge plant
continuously since 1916. He helped to organize Dodge Local 1150
and became its president in February 1937. He was serving as such
during the period here under consideration. He was active in solicit-
ing members for Dodge Local 1150 and served on many of its com-
mittees in various meetings with representatives of the respondent.
Craigle has been employed by the respondent continuously since
March 1928, except for a period of 18 months during 1930 and 1931.
In November of 1938 he was working as a floor inspector in the lathe
department of the Dodge plant. Craigle joined Dodge Local 1150 in
February 1937. Thereafter, he wore his union button in the plant and
solicited for members. During 1938 he was vice president of Dodge
Local 1150 and was a member of various of its committees which met
with representatives of the respondent.
Trent was hired by the respondent in 1923 as a helper in the heat-
treat department of the Dodge plant. He held this job for about
10 years, after which he became, and has since remained, a furnace
operator in the heat-treat department. Trent joined Dodge Local
1150 in February 1937. He was active in soliciting for members and
about November 1938 he was elected shop steward in Dodge Local
1150, a position he held until about May 1939.
Hooper has been employed by the respondent between 16 and ,18
years. In November 1938 and thereafter he worked as a supervisor
in' department,229 under Charles Rothman. Hooper joined Dodge
Local 1150 in about September 1937. He subsequently relinquished
his membership and then joined again. He was a member during
November 1938. He apparently did not hold office or serve on com-
mittees for Dodge Local 1150.
It is undisputed that on November 22, 1938, Booher and Craigle
and other members of a grievance committee for Dodge Local 1150
conferred with Maxwell, superintendent of the Dodge plant, in the
latter's office concerning the shut-down of the heat-treat department
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the morning of November 19, 1938, and that, as the meeting ended
and other members of the committee were leaving, Maxwell called
Booher and Craigle back and told them that they were laid off for 1
week. According to the testimony of both Booher and Craigle
Maxwell refused to tell them why he was laying them off. Maxwell
denied that he refused them an explanation. This conflict in the
testimony will be considered below.
It is also undisputed that later during the same day, November
22, 1938, both Trent and Hooper were notified to go to Maxwell's office,
where Maxwell spoke with them separately and told each of them that
they were laid off for a week. Trent testified that when he asked
Maxwell the reason for this action the latter said it was for "intimida-
tion" and that he refused to give any other explanation. Hooper
testified that Maxwell told him that he was laid off because he "had
been soliciting members in working hours and trying to force them to
join the union."
Maxwell testified that when he laid the four men off, Booher and
Craigle together and Trent and Hooper separately, in each case he
read to them the following prepared statement:
The Company has been given conclusive evidence that you have
violated the statement of policy and the Company rules in union
activities in intimidating and coercing other employees. This
is a matter for dismissal. However, for this time as a warning, we
are suspending you from your job for one week. Please leave the
plant at once, and you can return to work next Tuesday. I regret
that this action has to be taken and sincerely hope we will have
no more difficulty.
The testimony of Trent and Hooper, as recounted above, indicates
that Maxwell made to them either the above statement or one similar
in content. That Maxwell did not refuse to tell Booher and Craigle
why they were being laid off, despite their testimony that he did so re-
fuse, is shown by the fact that immediately after they were laid off both
men filed grievance reports with Dodge Local 1150 stating that the
respondent informed them that they were laid off for "intimidating
other workers." On the basis of the foregoing, we find that Maxwell
read to each of the four men the statement quoted above.
Section 2 of Article 1 of the "statement of policy" issued by the
respondent at the Dodge plant on September 1, 1937, accepted at
that time by Dodge Local 1150 and in effect during November 1938,
states as follows:
There shall be no discrimination, interference, restraint or coercion
by the company or any of its agents against any of its employees
because of,membership or non-membership in any lawful organi-
zation. On the other hand, and as a condition to recognition
LINK-BELT COMPANY 267
already granted, there shall be no' coercion or intimidation of
employees directly or indirectly to compel them to join or for
their refusal to join any organization. The practice of such
intimidation or coercion by any employee shall be grounds for
dismissal. The union will not solicit membership on Company
time or on Company property.
Concerning its reasons for laying off Booher, Craigle, Trent, and
Hooper the respondent introduced the evidence discussed hereinafter.
C. V. Loughery and W. H. Maxwell, respectively manager and
superintendent of the Dodge plant, testified in substance that during
November of 1938, at a time when Dodge Local 1150 was conducting
an intensive organizing campaign, they received many reports from
foremen, aggrieved employees and others that persons soliciting for
membership in Dodge Local 1150 were telling employees at the plant
that they would have to join that organization to hold their jobs and
that they would not be permitted to'enter the plant unless they joined.
According to Maxwell and Loughery, they made thorough investiga-
tions of these reports and determined that some punitive action was
necessary. They alleged at the hearing that their investigations
showed that the ringleaders who were chiefly responsible for the situa-
tion described above were Booher, Craigle, Trent, and Hooper.
They thbrefore decided to lay these four men off for a period of
1 week.'
In support of its contention that Booher, Craigle, Trent, and
Hooper had violated the respondent's rules against threatening, intimi-
dating and coercing other employees and against soliciting for member-
ship in a union in the plant during working hours, the respondent
introduced the evidence discussed below.
Uncontradicted testimony by William W. Neal and Carter Tucker,
employees in the tool room of the Dodge plant, establishes the follow-
ing version of an encounter between Neal and Tucker and Booher and
others at one of the gates of the Dodge plant on the morning of Novem-
ber 21, 1938. Neal and Tucker arrived at the gate at about 7:00
a. m., their usual hour, preparatory to going to work. There theyw ere
confronted by a group of seven or eight men headed by Booher.
Someone in the group told them that they would have to join Dodge
Local 1150 before they could enter the plant. Booher then asked
both men to join and warned them not to attempt to go through the
gate without doing so as he would not be responsible for what might
happen. Tucker requested permission to speak with his foreman,
Brandt, before taking action. Booher agreed to go into the plant
himself to look for Brandt. He did so, but soon returned to the gate
saying that Brandt had not yet arrived. Tucker then asked Booher
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he and Neal might go into the office to wait until Brandt arrived.
Booher assented and the two men went into the employment office.
In a few minutes Maxwell arrived and asked Neal and Tucker why
they were there. Both men told him what had occurred. Maxwell
instructed them to go into the plant and start to work and they did so.
Loughery testified that later in the day, during the morning of
November 21, Maxwell reported the above incident; to him. He then
had Neal and Tucker called into his office and obtained from them a
full account of what had happened.18
Charles Edmondson, an employee in department 216 at the Dodge
plant, testified that early in November 1938 Craigle asked him when
he was going to join Dodge Local 1150. Edmondson replied that he
did not like the set-up of the C. I. 0. Craigle then stated, according
to Edmondson, that he would rather be loyal to his fellow workers
than to be a "longtailed rat." Edmondson replied that if Craigle
said that again he would hit him. Thereupon, Edmondson testified,
Craigle threatened to drop a 15-pound gear, which he was carrying,
on Edmondson's foot. This incident allegedly occurred during work-
ing hours in the plant. 'Craigle testified that he did not remember
having had any such conversation with Edmondson. It is undis-
puted, however, that Edmondson reported to Loughery that Craigle
had spoken to him as discussed above. Both Edmondson and
Loughery so testified.
Loughery also testified that on November 21, 1938, one Brown, an
employee at the Dodge plant, came into his office and reported that
Craigle told him on November 18 that if he failed to join Dodge Local
1150 before Monday he would not then be permitted to work. Accord-
ing to Loughery, Brown was greatly worried and had, on the previous
day, telephoned to Maxwell to ask for police protection to go to work.
Craigle admitted that he had a conversation with Brown concerning
Dodge Local 1150, but denied that he had threatened him in the
manner alleged.
Willard Thomas, supervisor on the second shift of the heat-treat
department, testified that on November 18, 1938, Trent told him in
the plant during working hours "that they were going to stop the
men who hadn't paid their dues in the C. J. 0. and didn't belong."
Thomas alleges that he understood that this remark was directed at
him. Trent denied having solicited Thomas to join Dodge Local 1150.
Both Thomas and Loughery testified that on November 20, 1938,
Thomas reported to the latter this entire incident. Loughery alleged
that at the time he made the report Thomas asked if he could be reclas-
98 There is additional credible evidence that Booher headed a group of members of Dodge Local 1150
which prevented two men from entering the plant to go to work on the night of November 18, 1938, until
they agreed to join Dodge Local 1150 Aside from the general testimony by Maxwell and Loughery that
they received various credible reports that Boober was a ringleader in incidents of this sort there is no show
ing on the record that the particular incident mentioned in this footnote was reported to them or that their
action in making the lay-offs was based upon it.
LINK-BELT COMPANY 269
sified as an office employee in order that he might not be required to
join Dodge Local 1150. -
Although Loughery and Maxwell received reports concerning the
events leading up to the shut-down of the heat-treat department on
November 19, 1938, it does not appear that they were notified by
Feist or anyone else that Trent told Feist, as alleged by the latter,
that he would have to join Dodge Local 1150 or he would not be per-
mitted to work.
Oren Fruits, a supervisor in department 229 of the Dodge plant,
testified that on November 18, 1938, Talmage Hooper came to him
while he was at work and told him that Dodge Local 1150 was soon
going to have a closed shop and that he would have to join sooner or
later. According to Fruits, Hooper told him that if he waited any
longer to join Dodge Local 1150 his initiation fee would be raised
from $1 to $25. Hooper admitted that he spoke with Fruits in the
plant during working hours about Dodge Local 1150 but denied that
he threatened him in any way.
It is undisputed that Fruits reported the incident, substantially
as described above, to his foreman,' Rothman, and that Rothman
took him in to see Maxwell and Loughery to whom he repeated his
story.
On the basis of the foregoing, we find that the respondent laid
off Booher,Craigle, Trent, and Hooper for a period of 1 week begin-
ning November 22, 1938, because it had good reason to believe that
each of them had wilfully violated the respondent's rules, and'that the
evidence does not support the allegation of the complaint, as amended,
that the respondent, laid them off because of their union activities.21
The complaint, as amended, also alleged in substance that hi.
March 1937 and thereafter, the respondent discriminated against its
employees at the Dodge plant who were members of, or affiliated with,.
Dodge Local 1150, and against its employees at the Ewart plant
who were members of, or affiliated with Ewart Local 2028, in the terms
and conditions of their employment in respect to rates of pay, transfers
to less desirable positions and in various other ways, for the purpose
of discouraging membership in Dodge Local 1150 and Ewart Local
2028; and also that during March 1937 and thereafter, the respondent
has kept under surveillance the meetings and meeting places of em-
-ployees who were members of Dodge Local 1150 and Ewart Local
2028. The respondent denied these allegations. The Trial Examiner
found that the evidence does not sustain the allegations of the com-
plaint set forth immediately above. We have examined the evidence
and hereby affirm the finding of the Trial Examiner.
29 While it is true that these men were engaged in "union activities" when they engaged in the conduct
which led the respondent reasonably to believe that they were wilfully violating the respondent's rules,
it does not follow that they were disciplined for engaging in "union activities ," as such. The basis for the'
discipline here was the circumstances under which such activities were carried on rather than the support
thereby afforded to Dodge Local 1150.
270 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we will order it to cease and desist therefrom and to
take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Employees Board and
the L. B. E. A., and has contributed to their support. Of these,
only the L. B. E. A. is now in existence.30 In order to effectuate the
policies of the Act and free the employees of the respondent from such
interference, and domination and the effects thereof, which constitute
a continuing obstacle to the exercise by the employees of the rights
guaranteed them by the Act, we will order the respondent to with-
draw all recognition from the L. B. E. A. as a representative of the
respondent's employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, and conditions of work, and to, disestablish them as
such representatives.
We have found that the respondent did not discharge, lay off, refuse
to reinstate, or otherwise discriminate in regard to the hire or tenure of
employment of the persons listed in Appendix A, hereto attached.
We shall, therefore, order that the complaint, as amended, in so far as
it alleges that the respondent discriminated in regard to the hire and
tenure of employment of the employees named in Appendix A, be
dismissed.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. Amalgamated Association, Iron, Steel & Tin Workers Local
Union No. 1150 and Amalgamated Association, Iron, Steel & Tin
Workers Local Union No. 2028 are labor organizations, within the
meaning of Section 2 (5) of the Act.
30 In so far as the record shows, the agreement of August 5, 1937, by which the respondent recognized the
L. B E. A. as the exclusive bargaining agency for office employees , clerical help in the shop , watchmen and
cafeteria employees at the Dodge plant, has never been abrogated The L. B. E A. intervened at the
hearing, held February 9, 10, 16, and 17, 1939, in Matter of Link-Belt Company and Steel Workers Oryanlz-
ing Committee, Local No. 1150, Case No. R-1255.
LINK-BELT COMPANY 271
2. By dominating and interfering with the administration of, and
by' contributing support to, Link-Belt Employees Board at its Dodge
plant after July, 5, 1935, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of the Act.
3. By dominating and interfering with the formation and adminis-
tration of, and by contributing support to, Link-Belt Employees
Association, Inc., the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the Act.
4. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the respondent
has engaged in and- is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act. '
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of the
Act.
6. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to the persons
listed in Appendix A.
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,
Link-Belt Company, Indianapolis, Indiana, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner dominating or interfering with the formation or
administration of Link-Belt Employees Association, Inc., or any other
labor organization of its employees, and from contributing any support
to said organization or to any other labor organization of its employees;
(b) Recognizing Link-Belt Employees Association, Inc., as the
representative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities-for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the National Labor Rela-
tions Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from Link-Belt Employees Associa-
tion, Inc., as the representative of any of its employees for the purpose
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work, and
completely disestablish Link-Belt Employees Association, Inc. as such
representative;
(b) Post immediately in conspicuous places in its Dodge plant, and
maintain 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 in paragraphs 1 (a), (b), and (c) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a)
of this Orde. ;
(c) Notify the Regional Director for the Eleventh Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and
the same hereby is, dismissed in so far as it alleges that the respondent
has discriminated in regard to the hire and tenure of employment or
terms or conditions of employment of the persons listed in Appendix A,
attached hereto and hereby made a part hereof.
APPENDIX A
Andrew Fink
James Mason
Carl E. Hyatt
Raymond Morris
O. N. Wiseman
Leona Lewis
Naomi Dillon
Phyllis O'Neill
Margaret Linder
Mary Camden
Leora Buchanan
Bertha Dillon
Rosa Markley
Zetta Sylvester
Frances Cox
Bertha Harrison
Ruth Wilson Lamaster
Bernice Lindsey
William Proctor
Louis Albrecht
Curtis Reynolds
Louis Scott
William Lukins
Donnell Haymaker
James Gaughan
Conrad Schroeppel
Boris Palachoff
David Thomas
Russell Hopper
Clyde Rodenberg
Basil V. Booher
Walter Craigle
William Trent
Talmage Hooper
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.