Metal Mouldings Corp.

National Labor Relations Board - Board Decisions

Feb 23, 1942

39 N.L.R.B. 107 (N.L.R.B. 1942)

In the Matter Of METAL MOULDINGS CORPORATION and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERIOA, AFFILIATED WITH
THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-1940.-Decided February 23, 1942
Jurisdiction : metal moulding products manufacturing industry.
Unfair Labor Practices
'Interference, Restraint, and Coercion: espionage activities.
Compang-Dominated Union: domination and interference in formation and ad-
ministration of-contribution of financial and other support by : furnishing
office services and facilities ; meeting place ; bulletin boards ; publicity matter
permitting solicitation of members and collection of dues during working
hours ; permitting operation of plant merchandising vending machines from
which union received the profits; donating moneys to union to defray cost
of annual employee picnic given by union ; rearranging working hours to
accommodate membership meetings; and compensating employee for time
spent in handling internal afflairs of union-impetus given by employer
president to rumor that employer required membership in unaffiliated union
as condition of employment ; presence of employer representatives on un-
affiliated union's bargaining committee; surrender of right to strike by
unaffiliated union in its initial contract without obtaining any concessions
with respect to terms or conditions of employment ; perpetuation of existence
of unaffiliated union by entering into contracts with it, which although
allegedly for members only, in effect granted exclusive recognition to un-
affiliated union by virtue of clause foreclosing recognition of any other labor
organization ; acceding' to demands of unaffiliated union' for discharge of
employees active in establishment of rival affiliated organization
Discrimination: discharge of two employees for activity on behalf of affiliated
labor organization : contention that employer feared strike action by un-
affiliated union requesting discharge found to be without merit ; discharged'
employee's activity in soliciting employees for -work elsewhere used as cover
in attempt to shield motive in imposition of discriminatory penalty.
Remedial Orders: dominated organization disestablished; contracts with domi-
nated organization abrogated ; reinstatement and back pay awarded.
Employee allegedly discharged because of employer's fear of strike action
by an organization, ordered reinstated and awarded back pay, where it
is plain in view of the employer's domination of the organization that it
could have had no fear of economic pressure by that organization.
Where there was no undue delay in the filing of charges, employer's
contention that back pay should not be ordered between the date of the
discharge to date of the third'amended charge since it had no knowledge
or notice of any charge prior thereto held without merit.
Evidence:
State statutes,with respect to admissibility of evidence are not controlling
in Board proceedings.
Although a witness may have been motivated in giving his testimony' by
a desire for revenge, held in view of corroborating circumstances, that the
possibility of such motivation does not destroy his credibility.
39 N L R B., No 23.
107
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Practice and Procedure : motion to strike all testimony given by a witness who
refused to answer proper question, denied.
Mr. Oscar Grossman , for the Board.
Berry c6 Stevens , by Mr. Ralph W. Barbier , of Detroit , Mich., for
the respondent. '
Mr. Joseph J. Geraci, of Detroit , Mich., for the M. T. U.
Mr. Maurice Sugar, by Mr. Jack N. Tucker, of Detroit , Mich., for
the U. A. W.-C. I. O.
Mr. Eugene R. Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon the third amended charge duly filed on March 8, 1941,1 by
International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the U. A. W.-C. I. O:, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Seventh Region
(Detroit, Michigan), issued its complaint dated March 8, 1941,
against Metal Mouldings Corporation, Detroit, Michigan, herein
called the respondent, alleging that the respondent had engaged in
and was engaging. in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2),.and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing
thereon were duly served upon the respondent, the U. A. W.-C. I. 0.,
and Metal Trades Union of Detroit, herein called the M. T. U.2 a labor
organization alleged in the complaint to be company-dominated.
With respect to the 'unfair labor practices the complaint alleged
in substance: (1) that about March 1937 the respondent initiated,
formed, sponsored, and encouraged the organization of the M. T. U.,
and thereafter dominated and interfered with its administration and
contributed financial and other support thereto; (2) that on October
10, 1939, the respondent discharged Edward Emke and on November
9, 1939, discharged George Carlos because they joined and assisted
the U. A. W.-C. I. O. and engaged in concerted activities with other
employees of the respondent for the purpose of collective bargaining
1 The original charge was filed on October 14, 1939 , an amended charge on February 7,
1940 , and the second amended charge on June 11, 1940
Incorrectly called Metal Trades Union in the complaint . By motion granted at the
hearing the designation was corrected to the full title stated above
METAL MOULDINGS CORPORATION 109
and other mutual aid and protection; and (3) that since July 5,
1935, and to the date of the complaint, by interrogating its employees
concerning their union activities, by advising them that the respond-
ent had knowledge thereof, by villifying and maligning the
U. A. W.-C. I. 0., its leaders and organizers, by threatening its
employees with dismissal and other reprisals if they joined 'the
U. A. W.-C. I. O. or refused to resign therefrom, by discharging and
otherwise penalizing its employees because they opposed or failed
to support the M. T. U., and by causing employees to engage in labor
espionage, and by other acts, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On March 18, 1941, the respondent filed its answer, admitting,
among other things, the allegations of the complaint with respect to
the nature of its business and denying the allegations concerning the
unfair labor practices.
Pursuant to notice, a hearing was held at Detroit, Michigan, from
March 24 through April 2, 1941, before'Charles E. Persons, the Trial'
Examiner duly designated by the Chief Trial Examiner. ' At the
outset of the hearing the Trial Examiner granted a motion to inter-
vene filed by the M. T. U., but limited its participation in the hear-
ing to its interest in the proceeding. The Trial Examiner granted
the M. T. U. permission to file an answer, and the M. T. U. filed an
answer denying the allegations of the complaint relating to the
M. T. U. The Board, the respondent, the U. A. W.-C. I. 0., and the
M. T. U. were represented by counsel and participated in the hearing.
Full opportunity, to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded
all parties. -
During the hearing the U. A. W.-C. I. O. moved that all testimony
given by John C. Scarberry, president of the M. T. U., be stricken
from the record because of his refusal to answer a question ruled
proper by the Trial Examiner." The Trial Examiner reserved ruling
thereon and denied the motion in his Intermediate Report. At the
conclusion of the hearing counsel for the Board moved to conform the
pleadings to the proof; the motion was granted without objection.
During the course of the hearing the Trial Examiner ruled on other
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Thereafter the Trial Examiner issued and duly served upon the
parties his Intermediate Report, dated July 23, 1941, finding that the
8 The information sought by. the question was elicited subsequently during the hearing
from other witnesses
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (2),
and (3) and Section 2 (6) and (7) of the Act, and recommending
that the respondent cease and desist from its unfair labor practices,
disestablish and withdraw all recognition from the M. T. U. as a
representative of its employees for the purposes of collective bargain-
ing, and offer reinstatement with back pay to Edward Emke and
George Carlos, Jr. Thereafter, on August 25, 1941, the respondent
and the M. T. U., respectively, filed exceptions to the Intermediate
Report and briefs in support of the exceptions. The U. A. W.-C.-I. 0.
did not file exceptions or a brief. Pursuant to notice duly served on
all parties, a hearing for the purpose of oral argument was held
before the Board in Washington, D. C., on November 25, 1941. The
respondent, the U. A. W.-C. I. 0., and the M. T. U. were represented
by counsel and participated in the argument.4
The Board has considered the exceptions to the Intermediate Re-
port and briefs submitted by the parties and, save as the exceptions
are consistent with the findings of fact, conclusions of law, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Michigan corporation having its principal
plant and place of business in Detroit, Michigan, is engaged in the
manufacture, sale, and distribution of metal mouldings and related
products for automobiles. During 1940, the respondent purchased
raw materials, principally cold-rolled and stainless steel, costing'
more than $1,000,000, of which 75 percent were shipped to the re-
spondent from mills located outside the State of Michigan.5 During
the same year, the respondent sold finished products valued in excess
of $2,000,000, of which 6 percent were sold to vendees outside the
4 At the oral argument before the Board , counsel for the respondent moved to introduce
in evidence copies of contracts between General Motors Corporation and various labor
organizations purporting to show a practice in industry for employers "to pay their,
employees , who are union officials , their regular rate of pay for the time spent by said
employees while settling grievances and meeting with the management ." The motion
is hereby granted and the documents are hereby made a part of the record as Respondent
Exhibits la, 1b , 1c, 1d, and le of November 25, 1941. Also , at the oral argument before
the Board , counsel for the M. T U. moved to reopen the record and to introduce in evidence
affidavits purporting to show the paid-up membership of the M. T U and the number of
employee contributors to a so-called defense fund in connection with the Board proceeding.
Since these matters are not relevant to the issues , the motion is hereby denied
b The respondent procni es the raw materials from out-of-State sources through the Ford
Motor Company and the Chrysler , Corporation , paying them for its purchases , but the
raw materials so procured are shipped directly from the out -of-State sources to the re-
spondent
METAL MOULDINGS CORPORATION 111
State of Michigan. The respondent sold the remaining 94 percent
of its finished products to large automobile manufacturing com-
panies, principally Chrysler Corporation, Ford Motor Company, and
General Motors Corporation, who incorporated the respondent's
products as parts in automobiles manufactured by them.6 The re-
spondent concedes that it is engaged in commerce, within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America, af-
filiated with the Congress of Industrial Organizations, herein called
the C. I. 0., is a labor organization admitting to membership pro-
duction and maintenance employees of the respondent.
Metal Trades Union of Detroit is an unaffiliated labor organization
admitting to membership the production and maintenance employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
George Snodgrass, a,former employee, testified that he was hired
in January 1936 by Captain Burkheiser,, then personnel manager and
chief watchman of the respondent, as a "confidential employee" to do
"personnel work" and to "work on production," and that he was
instructed by Burkheiser "to give him . . . weekly written reports
... on sabotage or . . . any union activities that would possibly go
ion in the shop, or anything that might be in disfavor of the com-
pany." Pursuant to Burkheiser's instructions, Snodgrass attended
meetings of the United Automobile Workers of America in the De-
troit area and made to Burkheiser, until the time of his death in
August 1938, weekly written reports, in addition to sporadic oral
reports, covering those meetings and such union activities in the
respondent's plant observed by Snodgrass during the course of his
production work as a hand bender and acetylene welder .7
'As to the interstate operations of the automobile manufacturing companies named
above, see N. L R. B. v. Ford Motor Company, 114 F (2d) 905 (C C A 6), enf'g as mod
14 N L R. B. 346, cert . denied 312 U S. 689; Matter of Chrysler Corporation and Inter-
national Union, United Automobile , Aircraft and Agricultural Implement Workers of America,
37 N. L R. B , No . 142, N L. R B v General Motors Corporation , 116 F (2d) 306 (C C , A.
7), enf'g, 14 N. L R. B. 113
7 The respondent contends that Snodgrass ' testimony, insofar as it relates to trans-
actions with Burkheiser , is inadmissible since Burkheiser was deceased at the time of
the hearing . In support of the contention counsel for the respondent cites Section 14219
of Michigan Compiled Laws of 1929, providing , in part , as follows : "And when any suit
or proceeding is prosecuted or defended by any corporation, the opposite party, if examined
as a witness in his own behalf, shall not be admitted to testify at all in relation to matters
448105-42-vol. 39-9
112 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
During the course of the formation of the M. T. U. about March
1937, Snograss reported to Burkheiser the activities of those of the
. respondent's employees who participated in the organizational meet-
ings of the M. T. U. Shortly after the organization of the M. T. U.,
however, Burkheiser ordered Snodgrass, according to Snodgrass' tes-
timony, "to lay hands off the M. T. U. . . .," told him not to "bother
it," and thereafter Snodgrass stopped keeping the M. T. U. under
surveillance while continuing his espionage work with respect to the
United Automobile Workers of America and such other labor or-
ganizations as might appear on the scene. In addition, according to
Snodgrass' testimony, Burkheiser secured Snodgrass' appointment as
a member of the first board of directors and executive committee of
the M. T. U., and Snodgrass served in that capacity for 1 year and
as a steward for a like period, thereafter.
Also, as hereinafter related, beginning about March 1937, Snod-
grass, as a representative of the M. T. U., attended meetings of the
Moulding Council, an organization composed of delegates of C. I. 0.
affiliated local unions 8 in the Detroit area, interested in the making
of a blanket trade agreement for the industry. According to Snod-
grass' testimony, at first he made several written reports of Mould-
ing Council deliberations to Burkheiser and subsequently, at Burk-
heiser's direction, Snodgrass made written reports covering Moulding
Council internal affairs to Guy V. Toner, the respondent's vice presi-'
dent and general manager. At the hearing Toner admitted that he
received reports from Snodgrass with respect to prospective "de-
mands" of the Moulding Council and "the reaction" to them ex-
pressed at its meetings.9 '
The respondent urges that the Board disbelieve Snodgrass' testi-
mony with respect to his spy activities because he had, an imagined
grievance against the respondent. It appears that Snodgrass took
a 30-,day leave of absence to work elsewhere in May 1940 and there-
which , if true , must have been equally within the knowledge of a deceased officer or agent
of the corporation, and not within the knowledge of any surviving officer or agent of the
corporation . We find no merit in the respondent 's contention . Clearly, Snodgrass.11
is not a party to the instant proceeding Furthermore , we find that the respondent's
higher officials were aware of Snodgrass ' activities as disclosed in the text infra. Moreover,
State statutes with respect to admissibility of evidence are not controlling in Board pro-
ceedings. Cf. Section 10 (b) of the Act.
e Except as to the M. T. U.
Toner sought to justify the receipt of Snodgrass ' reports on the ground that they Mere
made after representatives of the Moulding Council and of an Automotive Association, a
manufacturers ' organization to which the respondent belonged , had started bargaining
negotiations , intimating that Snodgrass had confined his reports to such negotiations. We
do not credit Toner' s testimony In any event , we are satisfied that Snodgrass ' reports
to Toner included observations of internal affairs of the Moulding Council The M T U
withdrew from the Moulding Council about November 1937 , ahd the respondent and the
M. T. U. were the only ones who did not sign the blanket agreement for the industry
subsequently entered into on behalf of the Moulding Council and the automobile-parts
manufacturers in the Detroit area.
METAL MOULDINGS CORPORATION 113
after sought an extension of the leave period. When the respondent
refused to grant an extension and the M. T. U. refused to intercede
in his behalf, Snodgrass quit his employment with the respondent.
Because of this incident the respondent argues that Snodgrass is a
prejudiced witness. While Snodgrass may have been motivated in
giving his testimony by a desire for revenge, in view of corroborating
circumstances hereinafter set forth, we do not believe that the pos-
sibility of such motivation destroys his credibility. The respondent
also claims that Snodgrass' testimony is not worthy of credit in view
of his admission at the hearing that his spy activity ceased at the
time of Burkheiser's death and because Snodgrass linked his espio-
nage with persons who were not available as witnesses to contradict
his testimony, and with no others. While, aside from Burkheiser's
death, there is no explanation in the record for the cessation of
Snodgrass' spy duties in August 1938, Snodgrass was not further
interrogated as to the reason for- the discontinuance. In addition to
testimony involving transactions with Burkheiser and testimony that
Harlan Sandy, who was not in the- respondent's employment at the
time of the hearing and who allegedly could not be located, also
acted as a labor spy under Burkheiser's supervision, Snodgrass testi-
fied that he received reimbursement for traveling expenses incurred
in connection with his espionage work from Guy Schrock, the re-
spondent's plant superintendent, and Schrock did not deny this testi-
mony; and, as set forth above, -Manager Toner in his testimony
admitted receiving reports of union activities from Snodgrass. More-
over, Snodgrass testified that Chamberlin, president of the respondent,
attended at least one conference at which Snodgrass reported Mould-
ing Council affairs, and Chamberlin did not testify in the proceeding.
The respondent also argues that Snodgrass' testimony is not entitled
to weight because of his admitted failure to attend, during the winter
of 1936-1937, any union meetings ' involving organization of the re-
spondent's employees, other than the first organization: meeting of
the M. T. U., and in view of his admitted unawareness of distribution
of C. I. 0. leaflets at the plant about March 1937. However, aside
from a meeting of 6 employees who showed interest in C. I. 0.
organization in the fall of 1936, another C. I. 0. meeting attended
by about 60 employees and the distribution of C. I. 0. literature about
March 1937,10 there were no organizational meetings or other public
activity of an outside labor organization in which the respondent's
employees participated prior to September 1939, a year after Snod-
grass had quit spying. Furthermore; John C. Scarberry, president
10 When Edward Emke , an employee , about March 1, 1937, visited the office of the U A. W -
C I O. to join it, he found there Snodgrass and other employees who had become members
of the U. A. W.-C I. O.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the M. T. U., testified that he was aware of Snodgrass' role as a
labor spy. Under all the circumstances, we find, as did the Trial
Examiner, Snodgrass' testimony to be true.
We find that the respondent by the espionage activities set forth
above interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. Interference with and domination and swapport of the M. T. U.
About the time of the widespread strikes in the automobile indus-
try in Detroit, the C. I. O. distributed literature outside the respond-
ent's plant urging employees to organize within its ranks. A few
of the respondent's employees interested themselves in the organiza-
tion of a union to be affiliated with the C. I. O. Shortly thereafter,
in March 1937, after making an unsuccessful effort to obtain from
the C. I. O. a hall and the services of a speaker for organizational
purposes, John C. Scarberry, then employed by the respondent as
a millwright, took steps to establish an unaffiliated labor organization
in the respondent's plant." On March 14, 1937, after having con-
sulted a Detroit lawyer, Alfred Stolinski, who advised the incor-
poration of such an organization, a meeting attended by about 85 to
110 of the respondent's employees, was held. According to the
testimony of Edward Emke, an employee, Scarberry, who presided
as chairman at the meeting, pointed to advantages of an unffiliated
labor organization absent in C. I. O. affiliation, and stated, among
other things, ". . . why not start our own independent . union? .. .
we will have our own union, and have our own men run it." While
Scarberry denied making such statement, Emke's testimony was'
corroborated by another employee, Edward Masztakowski, who
testified that Scarberry referred to those active in C. I. O. organiza-
tional work 12- as employees, who had thereby "taken the job 'in their
11 Scarberry 's employment background is of significance Prior to his employment with
the respondent , he had worked elsewhere at various occupations and in different localities
while working as a truck driver for a chain store, Scarberry became acquainted with the
store manager, Frank J Paterson , who subsequently became the respondent's employment
manager Questioned about his experience with labor organizations before his employment
with the respondent , Scarberry testified : "If I was a member of a labor organization the
membership was bogus for a bargaining purpose the same as a lot of other memberships
Scarberry secured employment with the respondent through Paterson lured as a punch-
press operator , although having little or no experience as such , Scaiberrv was trarsferred
after a few weeks-to the millwright department where he served as a millwright and oiler,
work which required his presence throughout the plant, under Burkheiser 's immediate super-
vision Snodgrass testified that he understood that Scarberry was one of several confidential
employees who, as in the case of Snodgrass , served as a labor spy for the respondent.
12 Scarberry had joined the C. I 0 about 1936-1937. Edward Masztakowski testified
that shortly prior to a C I 0 meeting of the respondent's employees about March 1, 1937,
he received a report from Joe Ketchie , then a fellow employee, to the effect that Chamberlin
and Manager Toner had "called upon the carpet" employees interested in the incipient
organizational movement , including Ketchie , and asked "what is the matter, aren't you
satisfied any more?" This was not denied . We find that President Chamberlin and
-METAL MOULDINGS CORPORATION 115
hands by proclaiming themselves for the U. A. W., and were left
stranded," and that he "figured that it was a splendid idea to ask
the people what they thought about organizing an independent or-
ganization, that he was in favor of it." We find that Scarberry in
substance made the statements attributed to him by Emke and
Masztakowski. '
Scarberry suggested that he be named chairman of the board of
directors of the proposed organization. The employees present at the
meeting voted in favor of the formation of an unaffiliated union, and
elected officers and a board of five directors, with Scarberry as chair-
man.13 Three, days later, on March 17, the board of directors, under
the guidance of Attorney Stelinski, made application for incorpora-
tion of the M. T. U. as a non-profit corporation under the laws of the
State of Michigan. M. T. U. promoters instituted an organizational
drive among the respondent's employees, soliciting membership and
collecting dues inside as well as outside the plant and, in some in-
stances, in the presence of foremen. A rumor spread through the
plant that employees risked their jobs unless they joined the M. T. U.
Thus, according to the testimony of Chris G. Carlos, then employed
as a general foreman by the respondent, he was told by one of his
subordinates, Charles Premier, that Premier had been threatened
with loss of his job if he did not join the M. T. U. and that he did
not wish to become a member of that organization unless the respond-
ent 'required such membership; that Carlos reported the threat to
Chamberlin, the respondent's. president; that Chamberlin instructed
Carlos "to tell the men to all of them join the union," referring to
the M. T. U.; and that, pursuant to Chamberlin's instructions, Carlos
told Premier while at work "to go ahead and join with the gang"
and carried Chamberlin's message to other employees, including
Stanley Jakubowski.14 Although Jakubowski testified that he was
assured by Carlos that employees would not lose their jobs because
of non-membership in the M. T. U., Jakubowski otherwise corrobo-
rated Carlos' testimony. Chamberlain and Premier did not appear
as witnesses. We credit, as did the Trial Examiner, Carlos' testimony.
Manager Toner thus interrogated the respondent ' s employees concerning their union activi-
ties and reproved them for their interest in C I. 0 organization . Also Snodgrass testified,
and his testimony was not denied, that he was told shortly after the formation of the
M. T U. by his foreman, Bud Lucas, "The CIO is corrupt" We find that Lucas made,
such statement
13 Prior to March 17, 1937, the board of directors appointed Snodgrass to the board to
fill a vacancy. Snodgrass testified that he was told by Burkheiser that Burkheiser had
made arrangements with Scarberry for Snodgrass ' appointment While Scarberry testified
that Snodgrass ' candidacy was not suggested by himself or by a superior , Scarberry stated
that he could not "remember " who made the suggestion and failed to deny specifically that
Burkheiser had participated in securing Snodgrass ' appointment . We do not credit
Scarberry 's testimony and find Snodgrass"testimony to be true.
'* When Carlos was first employed by the respondent in 1930 he was informed by
President Chamberlin that he wanted "an open shop" and "nothing to do with the union "
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 21, an M. T. U. meeting, attended by approximately 150
to 200 employees, was held. After voting in opposition to affiliation
with the C. I. O. and in favor of the proposed unaffiliated organiza-
tion, the employees adopted a constitution and bylaws and printed
membe"rship cards were distributed. On March 22, Scarberry sent
word to Plant Manager Toner through Employment Manager Pater-
son that the M. T. U. had "set up a committee" and that Scarberry
desired to meet with Toner. Pursuant to arrangement, Scarberry,
along with other members of the M. T. U's executive committee '15
met with Toner and requested recognition of the M. T. U. for mem-
bers only. Toner informed the committee that,a reply would be
made the following day. On March 24, Toner met with the M. T. U.
committee and notified it, among other things, that the respondent
would bargain collectively with the M. T. U. for its members. At
the same meeting the respondent granted other demands made by the
M. T. U. on March 22, including a demand for daily instead of
weekly adjustment of piece-work rates and a request fqr payment of
time and one-half for time spent in excess of 48 hours. Since March
24, 1937, the executive committee of the M. T. U. has met at regular
intervals with management for the purposes of collective bargaining.16
On May 6, 1937, the 'respondent entered into a written contract
with the M. T. U. to expire on May 6, 1938, recognizing the M. T.'U.
as "representative of those Employees of the Company who are
and/or may become members thereof" for the purposes of collective
bargaining, and undertaking not to "aid, promote or finance any labor
group or organization which purports to engage in collective bar-
gaining or make any agreement with any such group or organization
for the purpose of undermining the Union." The M. T. U. agreed
in the contract that it would "not cause, or permit, or take part
in any sit-down or stay-in strike or other stoppage in the plant of
the Company during the. term of this agreement." The contract
contained no provisions with respect to wages, hours, or other condi-
tions of employment. In 1938, 1939, and 1940 the respondent en-
tered into 1-year written contracts with the M. T. U. covering terms
and conditions'of employment, including grievance procedure, hours,
and seniority, in addition to provisions, among others, with respect
to recognition of the M. T. U. In the 1938, 1939, and 1940 contracts
ss The executive committee consisted of the board of directors and officers of the M. T. U.
" The mode employed for collective bargaining involves in general four monthly joint
meetings . At the first meeting of each month the M. T. U. presents its demands to
management . The following day, or soon thereafter, management announces its decisions.
This process is repeated about every 15 days. Minutes of the meetings are recorded and
transcribed by a stenographer employed by the respondent and the respondent furnishes
copies of the minutes to the M. T. U. While there is no evidence that the respondent
actually withheld from non -members benefits gained by the M. T. U. through collective
bargaining , the minutes in at least one instance recite that concessions granted shall be
applicable exclusively to M. T. U members.
k
METAL MOULDINGS CORPORATION - 117
the respondent recognized the M. T. U. "as the bargaining agency
for its members on matters of wages, hours, and conditions of work"
and the respondent agreed that during the term of the respective
agreements it would "not bargain' in relation to matters covered by
[such agreements] with any other organization or group of em-
ployees." 11 The record neither discloses that the respondent de-
manded proof with respect to the authority,of the M. T. U. to rep-
resent employees prior to the making of the 1938, 1939, and 1940
contracts, nor that the M. T. U. furnished indicia of such authority.
At the time of the hearing in this proceeding the M. T. U. repre-
sented more than 90 percent of the respondent's employees but the
record does not show when the M. T. U. first acquired majority
status.
According to uncontradicted testimony the respondent accorded
the M. T. U. financial and other support. Scarberry, president of
the M., T. U. at the time of the hearing, has acted as its business
manager since its inception. In addition to having an expense ac-
count with the M. T. U.,18 he is carried on the respondent's pay roll
as a millwright at a substantially higher rate of pay than that re-
ceived by other millwrights employed by the respondent. However,
Scarberry has not performed millwright work for several years.
Instead'he devotes his entire time, clocking in and out of the plant
at his whim, to the internal management of the M. T. U., to collec-
tive bargaining including the handling of M. T. U. grievances, and
to the affairs of an employees' credit union sponsored by the M. T. U.
in the respondent's plant 19
The respondent seeks to justify its payment to Scarberry of wages
for acting as representative of the M. T. U. on the ground that
such practice conforms to usage in the automobile industry and
urges that it pursues its policy with respect to Scarberry because of
the efficiency resulting in having only one employee handle union
grievances. To sustain its position the respondent offered in evidence
contracts of General Motors Corporation with U. A. W.-C. I. 0.,
U. A. W.-A. F. of L., and the Mechanics Educational Society of
America, respectively. We find no merit in the respondent's con-
17 Unlike the original contract , the 1938 and 1940 contracts contained provisions pro-
hibiting work stoppages prior to exhaustion of the established grievance -procedure ma-
chinery However , the 1939 contract , like the original contract , barred all work stoppages
during the term of the agreement.
1s Under a 2-year contract with the M . T. U., renewed for a like period on March 21,
1939, except with respect to "power or authority to do any labor bargaining ," Scarberry
was "empowered and authorized to manage all of the property , business and affairs" of the
M. T. U:, and for his services he was to receive "full pay for time lost in transacting Union
business , plus all his expenses such as transportation , hotel , meals and all other necessary
and incidental expense."
19 In July 1937 the respondent found it necessary to hire a replacement for Scarberry
since he spent so much time on M. T. U. business . Since then , on rare occasions , Scarberry
has been drafted to spend short periods on maintenance work.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tention. The General Motors contracts generally provide that in
plants of 1500 employees or less, union representatives may, without
loss of pay, handle grievances during working hours not to exceed
4 hours a day. The General Motors plants are larger than that of
the respondent at which between 400 and 600 persons are normally
employed. Furthermore, in addition to grievances, Scarberry as
president and business agent of the M. T. U. handles internal affairs
of the M. T. U. for which he is paid at a millwright's rate, including
time and a half for overtime and double time on Saturdays and
Sundays, for time spent in the plant. Moreover, the alleged efficiency
in plant operations was not achieved since other M. T. U. representa-
tives, aside from Scarberry, participate in the adjustment of griev-
ances during working hours without loss of pay. Finally, the re-
spondent pays Scarberry wages for time spent in handling M. T. U.
affairs in the absence of any contract provision therefor,", and the
respondent neither regulates Scarberry's working hours nor the dis-
position of his time.
The record also contains other uncontradicted testimony of com-
pany support. Soon after its formation the M. T. U. shared office
quarters with Burkheiser in the plant and subsequently, when its
affairs grew to sizeable proportions, the M. T. U. took possession of the
entire office formerly occupied by Burkheiser and has since occupied
it, receiving local telephone service and utilizing the office for M. T. U.
committee meetings and for the collection of dues, with the respond-
ent's acquiescence and without charge. At least two membership
meetings of the M. T. U. have been held on company premises, one in
the spring of 1938 in the presence of Manager Toner and with his
permission. The respondent also permits the M. T. U. to operate in
the plant merchandise vending machines from which the M. T. U.
receives the profits. In each of 3 years, the respondent donated the
sum of $75 to defray the,cost of annual employee picnics given by
the M. T. U., and the respondent has permitted the M. T. U. the
use of a company truck for transportation purposes on such occa-
sions.21 On at least one occasion, in September 1938, the respondent
20 The 1938, 1939, and 1940 contracts provide that the final steps in the adjustment
of grievances, including review by the highest management representative and arbitration,
shall take place outside working hours unless the respondent requests a meeting and, in that
case, "such meeting shall be paid for by the Company "
21
The respondent argues that it did not give unlawful financial support to the M. T. U.
inasmuch as the respondent also donated sums of money to outside labor organizations,
totaling approximately $400 We reject this contention. The outside recipients consisted
largely of locals of employees working for customers of the respondent and, although the
contributions include donations totaling $150 to the Detroit Federation of Labor, Fresh
Air Camp, the so-called contributions largely represent advertising in the form of subscrip-
tions to the Michigan edition of the CIO News and "international year book" amounting to
$75, and purchases of tickets of admission to social events, such as dances and picnics.
Furthermore, the respondent's expenditures to the outside organizations do not antedate
1939. By that time the M. T. U. had entrenched itself in the plant. Moreover, the
METAL MOULDINGS CORPORATION 119
posted in the ' plant over the signature of Superintendent Schrock a
notice of , rearrangement of working hours for the day and night
shifts to accommodate a meeting of the M. T. U. membership.22 In
December 1938, the respondent defrayed the cost of two printing bills
for the M. T. U., totaling $13. Space in the plant has been allocated
by the respondent to the M. T. U. for the erection of a bulletin board
and the M. T. U. has used a bulletin board in the plant for the posting
of its notices. In its 1939 report to the Michigan Corporation and
Securities Commission, the- M. T. U. disclosed that it was being
financed by $1 a month membership dues and by "Shop Concessions."
The respondent contends that, despite the facts related, the record
fails to establish domination or support of the M. T. U. on its
part and urges that the support received by the M. T. U. is explain-
able on the ground of militancy and bargaining strength of a gen-
uinely independent union. We are not persuaded by this contention.
Among other ways, the respondent showed hostility to outside labor
organizations by its use of labor spies. On the other hand, it
permitted solicitation of employees and collection of dues in the
plant, often during working hours, on behalf of the M. T. U. In-
deed, President Chamberlin gave his blessing to M. T. U. member-
ship and thereby gave potent support to the rumor prevalent in the
plant that the respondent required membership in the M. T. U. as
a condition of employment. Scarberry, the leading spirit in the
organization and administration of the M. T. U. has been in the
pay of the respondent for acting, ostensibly, in the capacity of an
M. T. U. representative. The respondent was represented, moreover,
on the first bargaining committee of the M. T. U. in the person of
Snodgrass, a labor spy. It is also to be noted that Chris Carlos,
formerly a general foreman in the respondent's plant, testified that
,in the course of an investigation in 1938 by Manager Toner of
charges to the effect that Carlos had sponsored a slow-down strike
in the plant, Charles Premier, an employee, asked Toner with ref-
erence to the M. T. U. "this is your union, isn't it?" and Toner, in
Carlos' presence, replied, "Yes, but they can swing over to the CIO
tomorrow, can't they ?" 23 Furthermore, we are' impressed with the
fact, as above set forth, that the M. T. U. in its initial contract with
the respondent surrendered for the term of the agreement the em-
ployees' right to strike, labor's most powerful economic weapon,
without obtaining under the contract any concessions with respect to
respondent gave no assistance to any outside local engaged in organizing the respondent's
employees . Indeed, the record does not disclose that such a local existed
23 The notice, dated September 6, 1938, read : "Due to union meeting being held on
Thursday-Septemher 15, 1938-the plant will quit work at 4: 00 P 11i Night shift
will start at 6: 30 P M "
11 Toner did not deny this and we find that he made the statement thus attributed to him.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, hours, or other terms or conditions of employment. Conduct
of such character, rare if not unheard of in negotiations involving
legitimate labor organizations, furnishes striking evidence of the sub-
serviency of the M. T. U. to the will of the respondent. Also, by
entering into contracts with the M. T. U. which, although allegedly
for members only, in effect granted exclusive recognition to the
M. T. U. by virtue of the clause foreclosing recognition 'of any other
organization, and by acceding to the demands of the M. T. U. for
the discharge of two employees, as found below, the respondent gave
further support to the M. T. U. and thereby effectively perpetuated
its existence.
. We do not consider it necessary to set forth any of the matters
discussed at meetings between the executive committee of the M. T. U.
and the management, or the manner in which such matters were
disposed of, in view of our findings on other grounds in connection
with the 8 (2) allegations of the complaint, that the respondent
interfered with the formation and administration of the M. T. U.
and contributed support thereto .24
Under all the circumstances and on the entire record, we find,
as did the Trial Examiner, that the respondent dominated and inter-
fered with the formation and administration of the M. T. U. and
contributed financial and other support to it, thereby interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act. We further find that the con-
tracts or agreements entered into between the respondent and the-
M. T. U. and the contractual relationship existing thereunder, have
been and are, a means of utilizing an employer-dominated organiza-
tion to frustrate the exercise by the respondent's employees of the
rights guaranteed in Section 7 of the Act.
C. Discrimination in regard to hire and tenure of employment
1. Emke
Edward Emke worked for the respondent from 1931 to October
10, 1939, when he was discharged. The respondent had no complaint
about his work. His foreman, Joseph F. Kovacs, admitted at the
hearing, that the quality of Emke's work and his deportment were
good.
4N. L. R. B. v. Newport News Shtpbuaiding S Dry Dock Co., 308 U. S. 241. See also
N. L. R. B. V. Pennsylvania Greyhound Lines, Inc ., 303 U. S. 261, where the Court, in
approving the Board's order of disestablishment as to a company -dominated union, said
that the employer , by unfair labor practices , had "succeeded in establishing a company
union so organized that it is incapable of functioning as a bargaining representative of
employees," and that the company -dominated union therefore could not "be used as a
means of collective bargaining contemplated by Section 7."
METAL MOULDINGS CORPORATION 121
Emke first joined the U. A. W.-C. I. O. about March 1, 1937,
when he associated himself with Scarberry and other employees in
an effort to organize the workers in the plant. Under Scarberry's
direction, however, as we have found above, this organizational ac-
tivity-was diverted from the U. A. W.-C. I. O. and the M. T. U.
was established for the respondent's employees. Shortly after the
formation of the M. T. U., Scarberry questioned Emke about his
C. I. O. membership and was informed that Emke had stopped
making dues payments to the C. I. O. since joining the M. T. U.
and that he had ceased his C. I. O. activity. Emke served the
M. T. U. as it first treasurer for about 3 months at the end of which
he resigned, at Scarberry's request, allegedly, according to Scarberry,
because of difficulties of an unstated nature encountered by Scarberry
in securing a surety bond to secure the performance of the treasurer's
duties. Thereafter Emke became displeased with the M. T. U. At
the hearing Toner denied having knowledge of Emke's C. I. O. ac-
tivities prior to his discharge or any conversation with Emke con-
cerning the circumstances leading to his discharge. He admitted,
however, that he ordered Emke's discharge because the M. T. U.
demanded such action, although the M. T. U. had refused to give him
any explanation for its demand. Toner further testified that he
feared strike action by the M. T. U.- if he refused to accede to its
demand. There is no testimony, however, that the M. T. U.
threatened work stoppage or any other reprisal to enforce its demand
for Emke's_ discharge. We credit, as did the Trial Examiner, Emke's
testimony. Scarberry testified that he asked Toner to dismiss Emke
because he "was endeavoring to enroll a group of people in a com-
petitive labor organization" and . . . "was attempting to bring [such]
organization into where we were . . . where we had a then existing
contract . . ." Oscar Busch, a member of the executive committee
of the M. T. U. testified that the executive committee did not discuss,
at its meeting on October 9, 1939, employees who had joined the
U. A. W.-C. I. O. other than Emke because "we supposed if we got
the head of it, we would probably have no more trouble."
On September 23, 1939, Emke's dissatisfaction with the M. T. U.
reached a point which led him, along with George Carlos, whose
discharge is hereinafter discussed, and a few other employees of the
respondent, to rejoin the U. A. W.-C. I. O. Thereafter Emke
solicited other employees to join the C. I. 0. Hearing of Emke's
disaffection and union activity on behalf of a rival labor organization,
the executive committee of the M. T. U. held a special meeting on the
night of October 9, 1939, at a Detroit hotel, to consider a course of
action to deal -with the growing opposition of employees to the
M. T. U. At the meeting, according to testimony of members of
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the executive committee, a salesman employed by a motor sales
agency in the Detroit area, brought information to the effect that
Emke had organized a majority of the polishers employed by the
respondent, that he had attempted to induce a labor organization
in a plant of one of the respondent's customers to boycott the re-
spondent's products, and that he planned to stop production in its
plant by "pulling the switches." 25 Without confronting Emke with
the charges or making a further investigation, the executive com-
mittee voted to "fire" Emke, authorized Scarberry to notify Employ-
ment Manager Paterson to terminate Emke's employment, and di-
rected Scarberry to prevent Emke from resuming work next
morning. When Emke appeared for work at the plant the next
morning, he was intercepted by Scarberry who informed Emke that
he was not to work and directed him to the plant office of the
M. T. U. There Emke asked for an explanation. According to
Emke's undenied testimony, which' we credit, Scarberry replied :
"... you are too filthy for this organization . . . we don't have to
explain that to you . . . go to the N. L. R. B. and see what good
they will do for you ... I know that you are going there, you are
just that dirty ..." Emke left the plant. ' After lunch, that day,
when he returned to the employees' entrance at the plant seeking
to go back to work, he was refused admittance by the company
watchman who stated that he was acting under orders of Superin-
tendent Schrock to bar Emke from the plant. Emke went to the
front office and, after an unsuccessful attempt to obtain an explana-
tion from Employment Manager Paterson, secured an interview
with Plant Manager Toner. Emke testified as follows with respect
to the interview, with Toner :
Q. After you went in the office, what happened?
A. I went in the office and Mr. Toner says, "Yes, what can
I do for you?" J said, "What happened? How come I am
not working?" He says, "You know damn well." He says
"You know what has been going on for the last three weeks."
I says, "No, I don't." I said, "I would like to know why I
was fired." He says, "Smokey, do you have to work?" I says,
"Yes." He says, "Well why don't you go and make up with
the union. Tell them you are sorry." I said "Sorry for what?
I don't know nothing." I said, "I would still like to know, why
I was fired." He said, "Well, for the last year and a half you
have been a good hard working man, but for the last three
weeks you was a nasty boy."
25 Except as set forth above , there is no testimony that Emke plotted any illegal activity.
we find it unnecessary to determine whether Emke intended to engage in sabotage, as the
M. T. U. claims , since the respondent admits that it had no knowledge thereof at the
time of his discharge and does not rely thereon as justification for the discharge.
METAL MOULDINGS CORPORATION 123
We find that the M. T. U. demanded Emke's discharge because of
his membership in and activity for the U. A. W.-C. I. 0., and that the
respondent understood at the time why the M. T. U. was making its
demand. By acquiescing in and granting the M. T. U.'s demand that
Emke be discharged, the respondent in effect discharged Emke on
October 10, 1939, because of his union membership and activity.26
We find, as did the Trial Examiner, that the respondent discriminated
in regard to Emke's hire and tenure, of employment, thereby dis-
couraging membership in the U. A. W.-C. I. 0., encouraging member-
ship in the M. T. U., and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. Carlos
George Carlos, the son of Chris G. Carlos,27 was first hired by the
respondent in July 1934 as a polisher and buffer and thereafter, ex-
cept for a 3-month lay-off, worked under the supervision of his father
until the fall of 1936. At that time George Carlos was made a night
foreman in which capacity he served until about early in 1938 when
he was laid off in a general lay-off occasioned by a decline in opera-
tions at the plant. After a 3-month lay-off, he was recalled and
worked as a polisher, the night shift having been discontinued, until
his discharge on November 14, 1939, approximately 1 month after the
termination of Edward Emke's employment. The respondent claims
that it discharged Carlos because he induced employees of the respond-
ent to leave their employment for work elsewhere. -
Carlos joined the M. T. U. about May 1938. At that time he was
approached in the plant by Al Borges, an M. T. U. shop steward,
who presented a membership-application card and stated : "Jack
[Scarberry] told you to sign this in or else." After a conference with
Employment Manager Paterson concerning George's supervisory
status, Chris Carlos advised his son to join the M. T. U.
In September 1939, George Carlos joined forces with other em-
ployees of the respondent, including Edward Emke and Marsh
Palmer, in an effort to organize the respondent's workers for the
U. A. W.-C. I. O. Carlos solicited employees at their homes and
secured at least two applications for membership from employees of the
respondent on forms furbished by the U. A. W.-C. I. O. To combat
the incipient organizational movement the M. T. U. called a meeting
of its members. At the meeting, on October 4, 1939, Scarberry
' Cf. Hudson Motor Car Company and International Union, United Automobile Workers
of America, A. F L, 34 N. L. It. B. 815 , and cases cited infra, footnote 33
'''r The elder Carlos was then the respondent 's general foreman ; he was discharged by
the respondent in May 1938.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
praised the achievements of the M. T. U. and, among other things,
stated that "a small group of people has attempted during the cur-
rent production season to create all the dissension possible." In, the
course of his address Scarberry cited the yearly earnings of two
"dissatisfied" employees and characterized them as "people [who]
are endeavoring to wreck an organization that has functioned satis-
factorily for three years . . ." At the hearing Scarberry admitted
that he had reference to George Carlos and Marsh Palmer as the two
"dissatisfied" employees. At the conclusion of the meeting on Octo-
ber 4, the M. T. U. received a vote of confidence from the employees
present.
The next morning, October 5, Foreman Joe Kovacs summoned
Carlos to the M. T. U. office where he found executive committeemen
and stewards of the M. T. U. Later Marsh Palmer came in. Accord-
ing to Carlos' testimony, the following occurred : Carlos and Palmer
were notified by Scarberry that they were "fired" because they had
"attempted to organize another union"; Bruce Dellow, a member of
the M. T. U., executive committee and a friend of Carlos, complained
against such disciplinary action; Carlos and Palmer were sent from
the room while the committeemen balloted as to a course of action;
and, later, Carlos and Palmer were recalled to the M. T. U. office and
were directed by Scarberry "to take the rest of the day off" but to re-
turn to the M. T. U. office after changing from, work to street clothes.
Carlos further testified that he and Palmer, without notifying their
foremen, accompanied Scarberry, pursuant to his instructions, to a
beer garden where he lectured them concerning the virtues of the
M. T. U. Among other things, Scarberry stated that the M. T. U.
was his "bread and butter," his "baby," and that he "was going to see
to it that nobody wrecked it or broke it-up." Except to deny that-he
had any knowledge on October 5 of Carlos' organizational activity
on behalf of the U. A. W.-C. I. 0., Scarberry did not testify with re-
spect to the occurrences on that day. However, Edward Maszta-
kowski, an M. T. U. steward and executive committeeman who was
present at the meeting in, the M. T. U. office, corroborated Carlos,.
testifying that the executive committee had notified Carlos and Pal-
mer that- "the reason for their being called in that morning was that
they were dismissed for making derogatory remarks against the
[M. T. U.], fomenting trouble and trying to get the C. I. O. in,there."
Masztakowski also testified that Scarberry accused Palmer of covet-
ing a labor organization affiliated with the C. I. O. for his "own bene-
fit.728 We find, as did the Trial Examiner, that Scarberry and the
28 Palmer, in and confined to a hospital at the time of the hearing , was not available
as a witness. ,
METAL MOULDINGS CORPORATION 125
other members of the M. T. U. executive committee made the state-
ments above attributed to them by Carlos and Masztakowski.
Carlos and Palmer returned to work on October 6, so far as ap-
pears, without interference from their supervisors, and were reim-
bursed by the M. T. U. for the time lost the preceding day. Carlos
and Palmer thereafter ceased their U. A. W.-C. I. O. activity. Thus
when Emke questioned Palmer the day he returned to work concern-
ing the events of October 5, Palmer stated : "I am not going to put
a rope around my neck . . . I am all washed up with the C. I. O.
.. I am all through . . . we can't organize ,the C. I. 0."
At the close of the day's work on November 14, 1939, Carlos found
his time card missing from the clock rack. When he sought out Em-
ployment Manager Paterson for the purpose of obtaining an explana-
tion for the missing card, Paterson requested Carlos' badge and noti-
fied him that his employment had been terminated. According to
Carlos' testimony, Paterson further stated that higher management
officials had disclosed that Carlos had "told certain fellows in the fac-
tory that they should quit working there and go work for my dad," 29
and that he, George Carlos, had "tried to organize the C. I. O. in there
with the intent of getting my dad back in." At the hearing Paterson
denied telling Carlos that he was discharged because he had engaged in
C. I. O. organizational work; Paterson asserted that he transmitted a
message to Carlos from Plant Manager Toner to the effect that Toner
"didn't want the man [Carlos] around there because his father was
with a competitive business of ours and he was recruiting help to
work for his father." In resolving this conflict in testimony, it is sig-
nificant to note that Toner testified that the respondent did not clear
the matter of the proposed discharge of Carlos with the M. T. U.,
although it theretofore had been the respondent's uniform practice" to
consult with the M. T. U. before terminating the employment of any
employee; and that, when subsequent to the notice of discharge, Carlos
appealed to Scarberry for relief, he -promptly disclaimed having par-
ticipated in the matter, informed Carlos that the discharge rested with
the respondent, and refused to consider intercession with the respond-
ent on Carlos' behalf. In view of all the circumstances, we find, as
did the Trial Examiner, Carlos' testimony with respect to his conver-
sation with Paterson to be substantially accurate.
Toner testified that he decided to discharge Carlos after interview-
ing three or four employees whom he observed "checking out" at the
employment office and learning from them that they were quitting to
take "a job with Chris Carlos . . . [who] had offered them a whole lot
more money and better working conditions." At the hearing Toner
i9 The elder Carlos was then employed by another employer as a foreman with authority
to hire.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
denied having knowledge of Carlos' C. I. O.-membership or activity
prior to his discharge and ascribed the underlying reason for Carlos'
,discharge to the expense and inconvenience caused by the necessity to
train new polishers resulting from the loss of polishers from the re-
spondent's pay roll. Carlos admitted telling three or four employees
in the plant that his father was interested in hiring polishers having
insubstantial seniority with the respondent and, consequently, slight
work opportunities there, but denied that he urged them to quit the
respondent's employment to accept jobs elsewhere. It was not un-
common for employees in the plant to discuss work opportunities
elsewhere.
On the basis of the facts hereinabove set forth we are of the opinion
that the respondent discharged Carlos because of his C. I. O. member-
ship and activity. While replacement of the polishers prejudiced the
respondent to the extent inherent in turnover of skilled or semi-skilled
labor, -so far as appears, the labor market for polishers in the Detroit
area had not been exhausted and the respondent did not introduce
evidence establishing that it might have experienced, or that it there-
after experienced, special difficulty, inconvenience, or expense in re-
placing the polishers. Furthermore, we are impressed with the fact
that the respondent inflicted the extreme penalty of discharge upon
Carlos without any prior notice or warning that the common practice
in which he had engaged was displeasing to the respondent. Coming
upon the heels of the'disciplinary action taken against Carlos in Octo-
ber by the M. T. U., which we have found to be company-dominated,
and in view of the respondent's claimed failure to follow its customary
practice of consulting with the M. T. U. prior to the discharge of an
employee, coupled with the M. T. U's precipitant refusal to consider
Carlos' discharge as a matter affecting the M. T. U., we are convinced
that the respondent utilized the opportunity afforded by the quitting
,of other employees to work for Carlos' father, to discharge Carlos,
who, like Emke, had opposed .the M. T. U. and had threatened to set
up a rival labor organization.
We find, as did the Trial Examiner, that the respondent dis-
criminated in regard to George Carlos' hire and tenure of employ-
ment, thereby discouraging membership in the U. A. W.-C. I. 0., en-
couraging membership in the M. T. U., and interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close,' intimate, and substantial
METAL MOULDINGS CORPORATION 127
relation to trade, traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in. unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the purposes of the
Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the M. T. U. and has con-
tributed support thereto. The effects and consequences of the re-
spondent's domination, interference with, and support of the M. T. U.,
as well as the continued recognition of the M. T. U. as the bargaining
representative for its employees, constitute a continuing obstacle to
the free exercise by its employees of their right to self- organization
and to bargain collectively through representatives of their own
choosing. Because of the respondent's illegal conduct with regard
to the M. T. U., it is incapable of serving the. respondent's employees
as a genuine collective bargaining agency. Moreover, the continued
recognition of the M. T. U. would be obstructive of the free exercise
by the employees of the rights guaranteed to them by the Act.
Accordingly, we shall order the respondent to withdraw all recog-
nition from the M. T. U. as the representative of any of its em-
ployees for the purposes of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment and completely disestablish the M. T. U.
as such representative.- We have also found that the agreements
entered into between the respondent and the M. T. U. have been a
means whereby the respondent has utilized an employer-dominated
labor organization to frustrate self-organization and defeat genuine
collective bargaining by its employees. Under these circumstances
any continuation, renewal, or modification of existing agreements
would perpetuate the conditions which have deprived employees of
the rights guaranteed to them by the Act and would render in-
effectual other portions of our remedial order. We shall therefore
order the respondent to cease giving effect to any agreement between
10 See N. L. R . B v. Link -Belt Co, 311 U S. 584 rev 'g 110 F ( 2d) 506 (C. C A. 7),
enf'g as mod . 12 N L. R B. 854; H. J. Heinz Co v. N. L. R B, 311 U. S. 514 , aff'g 110 F.
(2d) 843 (C. C. A. 6), enf'g 10 N L R B 963; N. L R B. v. Newport News Shipbuilding
& Dry Dock Co , 308 U. ,a 241 , rev'g 101 F ( 2d) 841 (C. C. A. 4), enf'g as mod 8 N L. R B
866; N. L R. B v. The Falk Corporation , 308 U S 453 , rev'g 106 F . ( 2d) 454, mod'g
102 F. ( 2d) 383 (C. C A 7), enf'g 6 N L R. B. 654; N. L. R . B v. Pennsylvania Grey-
hound Lines, Inc., 303 U. S 261, rev'g 91 F. (2d) 178 (C. C A. 3), enf'g as mod. 1
N L. R. B. 1.
448105-42-vol. 39-10
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it and the M. T. U., or to any modification or extension thereof.
Nothing in this decision or in our order shall be taken, however, to
require the respondent to vary those wage, hour, and other sub-
stantive features of its relations with the employees themselves, if
any, which the respondent established in performance of the agree-
ment as extended, renewed, modified, supplemented, or superseded.31
We have also found that the respondent discriminated in regard
to the hire and tenure of employment of Edward Emke and George
Carlos because of their membership in and activities on behalf of
the U. A. W.-C. I. 0. Where an employee is discharged because of
his union membership or activity, the policies of the Act are normally
best effectuated by directing the employer to give employment to
the employee and to reimburse him for any loss of pay suffered
because of the discrimination. The respondent, hiowever, argues
that, in discharging Emke, it acted in good faith and without collu-
sion with the M. T. U., and that it discharged Emke because it feared
strike action by the M. T. U. It therefore contends that Emke should
not be reinstated or awarded back pay. In support of its contention
the respondent relies upon our recent decision in Matter of The °
New York and Porto Rico Steamship Company and Commercial -
Telegraphers' Union, Marine Division, A. F. of L.92 That case does
not govern in the present proceeding. Since we have found that the
respondent dominated the M. T. U., it is plain that the respondent
.had no real fear of economic pressure by that organization. More-
over, even assuming arguendo that the M. T. U. was not the respond-
ent's creature, the record shows that the respondent was not faced
with a threat of strike action and that its fears, if any, rested solely
upon speculation unsupported by even a threatened exercise of eco-
nomic power.33 In accordance with our usual practice, and in order
to effectuate the purposes and the policies of the Act, therefore, we
shall order the respondent to offer Edward Emke and George Carlos
full and immediate reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges and to make, them whole for any loss of pay
they may have suffered by reason of their respective discriminatory
discharges by payment to each of them of a sum equal to the amount
31 See National Licorice Co. v. N. L. R. B. 309 U. S. 350 aff 'g as mod 104 F. (2d) 655
(C. C. A. 2), enf'g as mod . 7 N. L. R. B. 537 ; N. L. R. B. v. J. Greenebaum Tanning Co.,
110 F. ( 2d) 984 (C. C. A. 7), enf'g as mod . 11 N. L. R. B. 300 , cert. den. 311 U. S. 662.
32 34 N. L. R. B. 1028.
33 See N. L. R. B. v. Star Publashsng Co, 97 F . ( 2d) 465 (C. C. A. 9), enf'g 4 N. L. R. B.
498; Wilson t Co, Inc. v. N. L . it. B. decided November 10, 1941 , (C. C. A 8), enf'g 26
N. L. R. B . 273 and 26 N. L. R. B. 297; Mc Quay-Norrtis Mfg . Co. v. N. L. R. B.,
116 F. ( 2d) 748 (C. C. A. 7), enf'g 21 N. L . R. B. 709, cert den. 313 U. S . 565; Matter of
Greer Steel Company and Tuscora , Lodge No. 173, Amalgamated As8oclation of Iron, Steel
and-Tin Workers of North Amerada ( 0. I. 0.). 38 N. L. R B. 65.
METAL MOULDINGS CORPORATION 129
which, he normally would have earned as wages from the date of
his discharge to the date of the respondent's offer of reinstatement,
less his net earnings 34 during said period,. 35
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS of LAW
J. International Union, United Automobile Workers of America,
affiliated with the Congress of Industrial Organizations, and Metal
Trades Union of Detroit are labor organizations, within the meaning
of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and- ad-
ministration of, and contributing support to, Metal Trades Union
of Detroit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to hire and tenure of employment
and terms and conditions of employment of Edward Emke and
George Carlos, thereby discouraging membership in International
Union, United Automobile Workers of America and encouraging
membership in Metal Trades Union of Detroit, the respondent has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 71 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.
By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B 440. Monies received for
work performed upon Federal, State , county, municipal , or other work-relief projects
shall be considered as earnings See Republic Steel Corporation v. N. L. R. B 311 U. S. 7.
85 The respondent claims that back pay should not be ordered for the period intervening
between 'the dates of the discharges of Emke and Carlos, respectively , and March 8, 1941,
the date of the filing of the third amended charge herein since it had no knowledge or
notice of any charge prior thereto. We find no merit in the contention . The Board's
records disclose that charges with respect to Emke and Carlos respectively were filed as
early as October 14, 1939, and February 7, 1940. It is immaterial for the purposes of
determining the amount of back pay that an employer had no knowledge or notice of
charges filed without undue delay. Cf, for example, L. C. Smith & Corona Typewriters,
Inc. and International Metal Polishers, Buffers and Platers Union of North America,
11 N. L. R B. 1382.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Metal Mouldings Corporation, Detroit, Michigan, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of, or contributing support to, Metal Trades Union of Detroit,
or any other labor organization of its employees; ,
(b) Recognizing Metal Trades Union of Detroit as the representa-
tive 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 other conditions of employment;
(c). Giving effect to a contract dated June 1, 1940, between the
respondent and Metal Trades Union of Detroit, or any extension,
renewal, or modification thereof, or any other contract or agreement
between the respondent and the said labor organization which may
now be in force;
(d) Discouraging membership in International Union, United
Automobile Workers of America, or any other labor organization
of its employees, or encouraging membership in Metal Trades Union
of Detroit by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment;
(e) Maintaining surveillance of, or employing any manner of
espionage for the purpose of ascertaining or investigating, the activi-
ties of International Union, United Automobile Workers of America,
or of its employees in connection with that organization or any other
labor organization, or any other activity which is in exercise of the
rights guaranteed in Section 7 of the Act;
(f) If any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
te(a) Withdraw all recognition from, and completely disestablish,
Metal Trades Union of Detroit as the representative of any of its
employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
METAL MOULDINGS CORPORATION 131
(b) Offer to Edward Emke and George Carlos immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and
privileges;
(c) Make whole Edward Emke and George Carlos for any loss of
pay they have suffered by reason of the discrimination against them,
by payment to each of them of a sum of money equal to an amount
determined in the manner set forth in the section entitled "The
remedy" above;
(d) Post immediately in conspicuous places in its plant in Detroit,
Michigan, and rilaintain' for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and-desist in paragraph 1 (a), (b), (c),
(d), (e), and (f) of this Order; (2) that the respondent will take
the affirmative action set forth in paragraphs 2 (a), (b), and (c) of
this Order; and (3) that the respondent's employees are free to
become or remain members of International Union, United Auto-
mobile Workers of America, and that the respondent will not dis-
criminate against any employee because of membership in or activity
on behalf of that organization ;
(e) Notify the Regional Director for the Seventh Region, in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.