Peerless Industries, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1950

91 N.L.R.B. 1328 (N.L.R.B. 1950)

In the Mattel' Of PEERLESS INDUSTRIES , INC. and FRANK FRIZELL,
AN INDIVIDUAL
In the Matter of PEERLESS INDUSTRIES, INC. and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA UAW-CIO) and INDEPENDENT PEER-
LESS EMPLOYEES UNION FORMERLY KNOWN AS PEERLESS MUTUAL
BENEFIT ASSOCIATION, PARTY TO THE CONTRACT
Cases Nos. 7-CA-103 and 7-CA-112
SUPPLEMENTAL DECISION AND ORDER
October 27, 1950
On April 12, 1950, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
consolidated proceedings, adopting a Settlement Stipulation entered
into among the parties on March 27, 1950, disposing of all the allega-
tions of the complaint except those portions relating to the discharge
by the Respondent of Frank Frizell.
Thereafter, on April 27, 1950, Trial Examiner James A. Shaw
issued his Intermediate Report in the above-entitled proceedings, and
subsequently, on May 4, 1950, an erratum thereto, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copies of the Inter-
mediate Report and erratum attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report. The Respond-
ent also requested that the cases be remanded for further hearing or,
in the alternative, that oral argument be held. These requests are
hereby denied because, in our opinion, the issues were fully litigated
at the hearing, and the record and exceptions adequately present the
issues and positions of the parties.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with' this case to a three -member panel
[ Members Houston , Murdock, and Styles].
91 NLRB No. 193.
1328
PEERLESS INDUSTRIES, INC. 1329
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, as amended, the exceptions, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent indicated below and
with the following additions and modifications :
We agree with the Trial Examiner's conclusion that the Respond-
ent, by discharging Frank Frizell on July 13, 1948, violated Section
8 (a) (3) and 8 (a) (1) of the Act. Unlike the Trial Examiner,
however, we deem it unnecessary to make any findings with respect to
the remaining allegations of the complaint herein, as these matters
were disposed' of by the above-mentioned Settlement Stipulation and
tbt Board's Decision and Order issued pursuant thereto. Accord-
ingly, we do not pass upon the validity of the Trial Examiner's find-
ings in these other respects.
In reaching our ultimate conclusions with respect to Frizell's dis-
charge, we rely on the following critical facts. On July 2, 1948,
the Respondent and Peerless Mutual Benefit Association,2 herein
called PMBA, entered into a contract covering all employees of the
Respondent, which provided, in relevant part, that all individuals
presently employed would have to join PMBA within 10 days from
the date of execution of the contract. No union-security authoriza-
tion election has ever been held pursuant to the provisions of Section
9 (e) of the Act. On July 7, Plant Superintendent Merchant ad-
mittedly warned employee Frizell that, in accordance with the pro-
visions of this contract, Frizell would have to join PMBA within 10
days after July 2. Frizell refused to join and, on July 13, upon the
expiration of the 10-day period, Merchant! discharged Frizell, telling
him that he was being discharged because he had left a Du-More
grinder on his workbench on Friday evening, July 9.
The Respondent contended, at the hearing and in its exceptions,
that Frizell was discharged, not because of his failure to join PMBA,
but because of his inability to take orders and to keep his department
clean, and that the grinder incident was the immediate cause of his
discharge. We find no merit in this contention. Although Mer-
chant was apprised of the grinder incident on Saturday, he made no
mention of it to Frizell on the following Monday, but waited until
Tuesday, July 13, as soon as the 10-day period provided for in the
contract had expired, to discharge Frizell. Moreover, as stated by
the Trial Examiner, the testimony of the Respondent's witnesses with
respect to this incident was so inconsistent as to be completely un-
2 The name of this organization 'was later changed to Independent Peerless Employees
Union.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worthy of belief. On the basis of all the facts, and particularly in
view of Merchant's previous warning to Frizell that he would have to
join PMBA, and in view of the timing of the discharge, we find
that the Respondent's alleged reason for discharging Frizell was a
mere pretext and that Frizell was discharged because of his refusal
to become a member of PMBA.
It is clear that the Respondent's discharge of Frizell was discrimina-
tory within the meaning of Section 8 (a) (3) of the Act unless the
Respondent was protected by a valid union-security agreement. As
found by the Trial Examiner, however, the contract was without legal
effect as it did not conform to the requirements of Section 8 (a) (3)
of the Act and PMBA had never been authorized by the Board to
enter into a union-security agreement. We therefore find that, by
discharging Frizell on July 13 because he was not a member of PMBA,
the Respondent violated Section 8 (a) (3) and 8 (a) (1) of the Act.
The Remedy
We have found, as did the Trial Examiner, that the Respondent
illegally discharged Frank Frizell. Therefore, in accordance with the
recommendation of the Trial Examiner, we shall direct the Respond-
ent to reinstate Frizell to his former or substantially equivalent posi-
tion without prejudice to his seniority or other rights and privileges.
We shall also order the Respondent to make Frizell whole for any
loss of pay he may have suffered as a result of the Respondent's
discrimination against him. In accordance with the formula pro-
mulgated in F. W. Woolworth, Company,3 and for the reasons stated
therein, we shall order that the loss of pay suffered by Frizell be
computed on the basis of each separate calendar quarter or portion
thereof during the period from the date of the Respondent's discrim-
ination against him to the date of a proper offer of reinstatement. The
quarterly periods, hereinafter called quarters, shall begin with the
first day of January, April, July, and October. Loss of pay shall
be determined by deducting from a sum equal to that which Frizell
would normally have earned as wages during each such quarter or
portion thereof, his net earnings, if any, during the same period.
Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter.
We shall further order, in accordance with the Woolworth deci-
sion,4 that the Respondent, upon request, make available to the Board
and its agents all records pertinent to an analysis of the amount of
back pay due and the right of reinstatement.
390 NLRB 289.
4 Footnote 3, supra.
PEERLESS INDUSTRIES, INC.
SUPPLEMENTAL ORDER
1331
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National . Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent , Peerless Industries, Inc.,
County of Washtenaw , Michigan , its officers , agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Encouraging membership in Peerless Mutual Benefit Associa-
tion , unincorporated , or Independent Peerless Employees Union, in-
corporated, formerly known as Peerless Mutual Benefit Association,
or in any other labor organization of its employees ,. by discharging
any of its employees or discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of
their employment;
(b) In any like or related 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, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all of such activities , except
to the extent that such right may be affected by an agreement re-
quiring membership in•a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Frank Frizell immediate and full reinstatement to his
former or a substantially equivalent position , without prejudice to
his seniority or other rights and privileges ;
(b) Make whole Frank Frizell , in the manner set forth in the sec-
tion entitled "The Remedy ," for, any loss of pay he may have suffered
as a result of the Respondent 's discrimination against him;
(c) Upon request , make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll records,
social security payment records ; time cards , personnel records and
reports, and all other records necessary to an analysis of the amount
of. back pay due and the right of reinstatement under the terms of this
Supplemental Order ;
(d) Post at its plant on Territorial Road, County of Washtenaw,
Michigan, copies of the notice attached hereto and marked Appen-
dix A.5 Copies of said notice , to be furnished by the Regional Direc-
I In the event that this Supplemental Order is enforced by a decree of a United States
Court of Appeals , there shall be inserted before the words , "A Supplemental Decision
and Order ," the words, "A Decree of the United States Court of Appeals Enforcing."
917572-51-vol. 91-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor for the Seventh Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Supplemental Order,
what steps the Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Order of the National
Labor Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify our
employees that :
WE WILL NOT encourage membership in PEERLESS MUTUAL BEN-
EFIT ASSOCIATION or INDEPENDENT PEERLESS EMPLOYEES UNION,
formerly known as PEERLESS MUTUAL BENEFIT ASSOCIATION, or
in any other labor organization of our employees, by discrimina-
torily discharging any of our employees or discriminating in
any other manner in regard to their hire or tenure of employment
or any terms or conditions of their employment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer to Frank Frizell immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre
PEERLESS INDUSTRIES, INC. 1333
viously enjoyed , and make him whole for any loss of pay suffered
as a result of our discrimination against him.
PEERLESS INDUSTRIES, INC.,
Employer.
By --------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Sidney Danielson, Esq., for the General Counsel.
Harry N. Grossman, Esq., and Thomas J. Donbas, Esq., of Detroit, Mich.,
for the Respondent.
James Doddie of Detroit, Mich., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Frank Frizell, an individual,' herein referred to
as Frizell, and International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America (UAW-CIO), herein referred to as
the Union, the General Counsel for the National Labor 'Relations Board 2 by
the Regional Director for the Seventh Region (Detroit, Michigan), issued a
complaint against Peerless Industries, Inc., Plymouth, Michigan, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in certain unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1), (2), and (3) of the National Labor Relations Act as amended
(61 Stat. 136), herein called the Act. Copies of the complaint, charge, and a
notice of hearing were duly served on the Respondent, the Union, Frizell, and
the Independent Peerless Employees Union, formerly known as the Peerless
Mutual Benefit Association, herein referred to as the Independent and the
PMBA.
The complaint in substance alleged that on or about November 7, 1946,' Russell
Hoffman and Jack Rosenthal engaged in business as a partnership under the
firm name and style of, Peerless Industries, hereinafter referred to as the
Partnership. The said Partnership maintained its principal offices and manu-
facturing plants in the city of Detroit and on Territorial Road in the county
of Washtenaw in the State of Michigan. Thereafter on or about May 13, 1948,.
Peerless Industries, Inc., heretofore and hereinafter referred to as Respondent,
was organized by or on behalf of the said partners as a corporation under the
laws of the State of Michigan with its principal place of business within said.
State. Thereafter, Respondent acquired all of the assets and the business of
said Partnership and assumed all its obligations and continued to operate said
business without any substantial change and on behalf of and in the interest
I Frizell though present at the hearing did not enter a formal appearance.
2 The General Counsel and his representative are herein referred to as the General Counsel
and the National Labor Relations Board as the Board.
3 The proof shows that the Partnership was actually formed prior to this date . The record'
does not show the actual date . November 6, 1946, was the date it was actually certified
as a legal entity by the State of Michigan.
1334 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said partners . Since on or about May 13, 1948, said Respondent has owned,
operated , and maintained its plant and principal place of business on Territorial
Road in the county of Washtenaw , in the State of Michigan.
With respect to the unfair labor practices the complaint in substance alleged
as follows : ( 1) That during the period beginin'g in or about September 1947,
and continuing thereafter , the Partnership , in the course and conduct of its
business , encouraged , assisted , dominated , and interfered with the formation
and administration of Peerless Mutual Benefit Association , an unincorporated
association ,4 and the Independent , and contributed financial and other support
to them. Respondent after acquiring the business of the Partnership with full
knowledge of the Partnership activities set forth above as regards PMBA, con-
tinued to encourage , assist, dominate , and interfere with the formation and
administration of the PMBA and its successor the Independent. Particular acts
in furtherance of its course of action towards the PMBA, and its successor the
Independent , are as., follows :
(a) Making available to the Independent various facilities and properties
of_thes Respondent for the purpose of furthering and facilitating the organization
and administration of the Independent.
(b) Preparing articles of incorporation for the Independent.'
(c) Permitting leaders of the Independent full freedom of movement to solicit-
members in and about Respondent 's place of business while restricting similar
conduct by employees engaged in activity on behalf of the CIO.
(d) Conducting or remitting the conduct of elections in the Independent on
Respondent 's premises.
(e) Making payment to members of the Independent for time spent in
attendance at meetings of the Independent.
(f) Calling , presiding at, dominating , and attending meetings of the Inde-
pendent.
(g) Recognizing and entering into bargaining relationships with the Inde-
pendent when it well knew that the Independent had not complied with Section
9 of the Act , as will be more fully set forth hereinafter.
( h) Contributing funds to the Independent.
(i) Checking off dues from the wages of its employees and paying over same
to the Independent.
(j) Requesting and requiring its employees to become members of the Inde-
pendent.
(k) Announcing a raise in pay at a meeting of its employees in which the
organization of the Independent was explained and the alleged benefits accruing
from membership were stated.
(2) Respondent has, since on or about May 13, 1948 , and continuing to the
date hereof , engaged in a continuous course of interference , restraint , and co-
ercion of its employees by :
( a) Threatening employees with discharge if they became members of the CIO.
(b)„ RRequiring - employees to become members, of the Independent by, entering
into a union, shop contract with the Independent , without first complying with
Section 9- (e) of- the-Act.
(c) Depriving employees of vacations and seniority status because they refused
to become members of the Independent , and informing employees that they would
' The evidence adduced at the hearing clearly shows that PMBA was incorporated in May
1948. ,
5 The evidence adduced at the hearing clearly shows that the Respondent's attorney pre-
pared the articles of incorporation for the PMBA , but not for its successor the Independent.
PEERLESS INDUSTRIES, INC . 1335
be deprived of their vacations and seniority status unless they became members
of the Independent.
(d) Informing employees that their tenure of employment would be more
secure if they joined the Independent.
(e) Requiring all employees to attend a meeting of employees during working
hours at which said employees required to express their desires as to representa-
tion by a labor organization.
(f) Directing employees to engage in surveillance of other employees engaged
in concerted activities.
(g) Engaging in surveillance of meetings of its employees for the purpose of
mutual aid protection.
(h) Questioning employees concerning their affiliation with and activity on
behalf of the CIO.
(3) Respondent on or about July 8, 1948, entered into a collective-bargaining
agreement with the Independent which agreement governed wages, hours, and
other terms and conditions of employment, and including a requirement that
its employees become and remain members of the Independent as a condition of
employment, notwithstanding the fact it was not then nor is it now the repre-
sentative of its employees as provided in Section 9 (a) of the Act, and moreover
entered into said agreement notwithstanding the fact that said Independent
was not first certified by the Board as authorized to enter into such agreement,
as provided in Section 9 (e) of the Act; (4) Respondent renewed said agreement
in and around August 1949, notwithstanding the fact that said Independent was
not then and is not now the representative of the Respondent's employees as
provided in Section 9 of the Act; (5) Respondent discharged the persons named
below on the respective dates set opposite their names and refused and continues
to refuse to reinstate them, except as will be set forth hereafter, because they
became members of or engaged in concerted activities on behalf of the_ CIO, or
because they refused to become members of the Independent :
Elizabeth Schromberger, June 16, 1948
Ruth Gloss, June 16, 1948
Genevieve Wilson, June 24, 1948
Mary Jane Struble, July 2, 1948
Frank Frizell, July 13, 1948
Frieda Conner, July 14, 1948
Hester Banks also known as Hester Stevens, July 14, 1948
Leona Yanney, July 19, 1948
Muriel Bock, July 14, 1948
(6) Respondent, in or about September 1948, and after the charge herein
was filed, rehired the aforesaid Frieda Conner, Muriel Bock, and Hester Stevens
but failed to assign them to their former or substantially equivalent jobs; (7)
Respondent thereafter, in or about October 1948, after the aforesaid Hester
Stevens was granted a leave of absence, failed and refused, and continues to re-
fuse, to reinstate her to her former position upon her application therefor, al-
though work was then and now is available to her.
On November 17, 1948, the Regional Director for the Seventh Region (Detroit,
Michigan) issued his order consolidating Cases Nos. 7-CA-103 and 7-CA-112.
On December 1, 1949, the Respondent filed its answer, which in substance
alleged as follows: (1) Respondent admitted its corporate structure, and cer-
tain jurisdictional facts, but in general denied the commission of any unfair labor
practices; (2) admitted that it had entered into agreements with the Independent,
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but denied the illegality of said agreements, and averred that the Independent
did represent a majority of its employees; (3) admitted that it discharged
Frieda Conner, Muriel Bock, and Hester Stevens, but averred that they were re-
quired to do so under the terms of their agreement with the Independent; (4)
denied that it had discharged Hester Stevens because of her activities on behalf
of the CIO, but averred that she had quit her position with the Respondent.
Pursuant to notice a hearing was held on December 6, 7, 8, 9, 20, and 21 at
Detroit, Michigan, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and the Respondent were
represented by counsel and the Union by an official representative. The inde-
pendent, though duly served with a copy of the charge, complaint, and notice
of hearing thereon, by its secretary appeared at the place of hearing but chose
not to enter a formal appearance though given ample opportunity to do so by the
undersigned. Frizell, the charging party in Case No. 7-CA-103, appeared at the
hearing herein and he likewise chose not to enter a formal appearance. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was given all parties. At the outset of the hear-
ing the Respondent in effect moved to sever Cases Nos. 7-CA-103 and 7-CA-112.
The motion was denied by the undersigned. During the course of the hearing
the General Counsel moved to dismiss the complaint as to Mary Jane Struble
and Leona Yanney. The motion was granted by the undersigned.
At the close of the hearing the General Counsel moved that the pleadings be
conformed to the proof in respect to minor matters such as names, dates, and the
like. The motion was granted by the undersigned. At the same time counsel
for the Respondent moved that the complaint be dismissed for failure of proof.
Ruling thereon was reserved by the undersigned. It is hereby denied for rea-
sons which will be shown below.
Upon conclusion of the hearing the General Counsel and counsel for the Re-
spondent argued orally before the undersigned. All parties were given an op-
portunity to file briefs none chose to do so.
Prior to the issuance of this Intermediate Report the Respondent, the Union,
and the General Counsel entered into a stipulation for a consent decree and
order in the Sixth Circuit Court of Appeals which disposed of all matters alleged
in Case No. 7-CA-103 and 7-CA-112, except insofar as they pertained to Frank
Frizell, an alleged discriminatorily clischargee, in both cases.
On April 12, 1950, the Board approved the settlement agreement referred to
above and issued its Decision and Order based thereon, and disposed of all issues
involved in Cases Nos. 7-CA-103 and 7-CA-112, except as regards the alleged
discriminatory discharge of Frank Frizell. Following pertinent excerpts from
the Decision and Order are set forth herein below.
On March 27, 1950, Peerless Industries, Inc., International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), Frank Frizell, An Individual, Independent Peerless Em-
ployees Union, formerly known as Peerless Mutual Benefit Association, and
Sidney Danielson, Attorney for the General Counsel on behalf of the
National Labor Relations Board, herein called the Respondent, the Union,
the Charging Party, the Intervenor, and the Board respectively, entered
into a Settlement Stipulation, subject to approval of the Board, providing
for the entry of a consent order by the Board, and a consent decree by the
appropriate United States Court of Appeals. The parties waived all fur-
PEERLESS INDUSTRIES, INC. 1337
ther and other procedure before the Board to which the Respondent may be
entitled under the Act, and the Rules and Regulations of the Board with
relation to each and every allegation of the Complaint previously issued
herein by the Regional Director for the Seventh Region on November 17,
1949, except that part of paragraphs 19 and 23 of the Complaint or any other
part of the Complaint which alleges a violation of Section 8 (a) (1) and (3)
of the Act with relation to the discharge of Frank Frizell by the Respondent,
and the Respondent waived its right to contest the entry of a consent decree
or to receive further notice of the application therefor.
The said Settlement Stipulation was simultaneously filed with the Trial
Examiner and submitted to the Board. It was agreed that the Trial Ex-
aminer, the Board and any appropriate Court of Appeals may consider, pur-
suant to normal Board and Court procedures, those portions of the Com-
plaint and the record in this matter which allege and relate to the discharge
of Frank Frizell by the Respondent.
The aforesaid Settlement Stipulation is hereby approved and made a
part of the record herein, and to the extent that the matter is covered by
the Settlement Stipulation it is hereby transferred to and continued before
the Board for the entry of a Decision and Order pursuant to the provi-
sions of the aforesaid Settlement Stipulation. The remaining portions
of the case not transferred continue pending before the Trial Examiner
for disposition pursuant to the Board's Rules and Regulations and this
Settlement Stipulation. In approving the Settlement Stipulation and enter-
ing the order provided herein the Board anticipates that it may at some
future date issue a Supplemental Decision and Order relating to the alle-
gations of the complaint not settled by stipulation.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Peerless Industries, Inc., is a Michigan corporation, maintaining a plant and
office at 8050 North Territorial Road, County of Washtenaw, Michigan, where
it is now engaged in the manufacture and sale of automobile heater parts and
plumbers' supplies and related products.
Since on or about November 7, 1946, the Partnership described above and its
successor the Respondent each annually purchased quantities of supplies and
raw materials for use in their respective businesses valued at $120,000, approxi-
mately 40 percent of which came to each of them directly from sources outside
the State of Michigan. During the same period, the Partnership and the
Respondent each annually manufactured and sold, and the Respondent cor-
poration presently anually manufactures and sells, products exceeding in
value the sum of $240,000 of which in excess of 90 percent. was caused and is
caused to be transported from Michigan to points located outside the State of
Michigan. The Respondent concedes it is engaged in commerce within the
meaning of the Act.
The undersigned finds that the Respondent and said Partnership were, and
Respondent now is , engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IL THE LABOR ORGANIZATIONS INVOLVED
Peerless Mutual Benefit Association, Inc., and its successor the Independent
Peerless Employees Union, and International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America (UAW-CIO) are and at all
times hereinafter mentioned were labor organizations as defined in Section 2
(5) of the Act, admitting employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
Background
As indicated above, the partnership was organized on November 7, 1946.6
Its first plant was located in Detroit, Michigan. In the summer of 1947, the
Partnership was forced to move its plant to Territorial Road in Washtenaw
County, near the town of Plymouth, Michigan, which is about 30 miles from
Detroit. On May 13, 1948, the Partnership was dissolved and the Respondent
was organized by the partners.
While the Partnership operated its plant in Detroit its employees selected
the Union as their collective bargaining representative. On March 15, 1946, the
Partnership and the Union entered into a written agreement which contained
the following article as regards the termination of the contract.
Article XI-Termnination.
Section 1. At least thirty (30) days prior to any expiration date either
party may notify the other of its desire to amend the Agreement, in which
event the notice shall set forth the nature of the amendments desired.
Section 2. This Agreement shall go into effect March 15, 1946, and continue
in effect, unless amended by mutual agreement, until March 15, 1947, and
shall continue from year to year thereafter unless notice is given by either
party at least thirty (30) days prior to the expiration of any year.
Thus, at the time the 'Partnership moved its plant to Plymouth the contract
with the Union was in full force and effect: The record is clear that the Union
made no effort to police the contract from the time the Partnership moved its
plant until sometime around June 15, 1948. Shortly prior thereto the Union had
started an organizational drive among the employees in the Plymouth plant, and
it was at this time that the Union discovered that the Partnership and its suc-
cessor, the Respondent, were in effect the same. In fact, the record indicates
that union officials in Detroit were not aware that the Partnership had moved
to Plymouth. • This is understandable when the circumstances surrounding the
removal of the plant are taken into consideration. Sometime in 1947 the
Partnership property in Detroit was condemned by the State to make way for
the construction of a superhighway. It was at this time that the Partnership
purchased the Plymouth property. In order not to completely disrupt their
business the machinery was moved from Detroit to Plymouth by stages, that is, a
few machines at a time. In the meantime, the Detroit plant continued to
operate: When the Plymouth plant was opened only four employees were sent
from.Detroit. After the plant at Plymouth got in operation the Partnership
adopted the policy of hiring local help for the obvious reason that Plymouth is
about 30 miles from Detroit. The partnership and the Respondent have at all
6 See footnote 3, supra.
PEERLESS INDUSTRIES, INC. 1339
times since continued to follow this policy. The removal to Plymouth was
completed in the fall of 1947.
On or about the week of June 15, 1948, Doddie, an organizer for the Union,
called on the Respondent at Plymouth and met with Jack Rosenthal, its secretary
and treasurer . The purpose of Doddie 's call on the Respondent was to advise
it that the Union represented a majority of the Respondent's employees in the
Plymouth plant, and to request the Respondent to recognize the Union as the
collective bargaining representative of its employees . During the course of the
conversation that ensued , Doddie called Rosenthal 's attention to the fact that
the Union had a contract with the Partnership. The record is clear that the
Union made no effort to enforce the 1946-47 contract after the Partnership
moved to Plymouth . The record is likewise clear that neither the Union nor the
Partnership nor the Respondent ever exercised their respective rights under the
termination clause of the agreement . In fact, Doddie 's request for recognition
at the time of his conversation with Rosenthal was predicated on the propositions
that the Union at that time , June 1948, did in fact represent a majority of the
Respondent 's employees then employed in the Plymouth plant.'
The Respondent ' s Managerial Hierarchy
The events with which we are concerned herein all occurred at the Plymouth
plant, and while it was operated by both the Partnership and the Respondent.
The officers of the Respondent at all times material herein were Russell Hoff-
man, president , and Jack Rosenthal , secretary-treasurer . Both were active in
the operation of the plant . Hoffman handled the sales end of the business and
spent a great part of his time away from the plant . Rosenthal managed the
office, and was for the most part in charge of the operation of the plant. The
plant itself was managed by Plant Superintendent Elroy H. Merchant. Under
his supervision were the following : Louis Jacobs , in charge of the automatic
screw machines ; Dorothy Shoebridge, in charge of the girls ; Elba Trowbridge,
in charge of the male employees , and at one time in charge of a night shift that
operated for about 3 months in 1948. In addition , Herbert . Rosenthal, son of
Jack Rosenthal , also acted in a supervisory capacity . The record is not clear
as to just what his duties consisted of.
At the hearing both Shoebridge and Trowbridge testified vaguely as to their
duties, and in the considered opinion of the undersigned , were reluctant and
evasive witnesses . On the other hand, however , Merchant, the plant superin-
tendent, testified that Jacobs, Shoebridge, and Trowbridge each had the
following authority in their respective positions.
According to the credible testimony of Merchant, Jacobs had authority to
transfer employees from job to job; to see that the employees were kept busy ;
he was responsible for their production; reported to Merchant derelictions of
employees in the conduct of their work; and had the authority to effectively
recommend employees for hire. As to Jacobs' authority to effectively recom-
mend an employee for discharge, Merchant testified that he could not recall
whether Jacobs had ever done so, but did not deny that he had such authority.
Jacobs, on the other hand, testified credibly in this regard as follows :
Q. Do you know what the . purposes of the Peerless Mutual Benefit
Association were?
A. Well, I think I can explain it roughly.
Q. Please do.
7 This will be discussed in detail hereinafter.
1340 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The purpose was to have a mutual agreement between Management
and the employees in the shop, to take care of any grievances and just sort
of make a happy family out of the whole thing. That's about the best way
I could explain.
Q. Did any of the purposes include negotiations with respect to conditions
of employment?
A. At that particular time, no.
Q. Did you ever negotiate any conditions of employment on behalf of the
Association?
A. Yes, I did.
Q. When was that?
A. After we had drawn up a contract in either June or July.
Trial Examiner SHAW. Of what year, please?
The WITNESS. 1948.
Q. (By Mr. DANIELSON) Did you have a contract in December, 1947?
A. No, we did not.
Q. I'll show you this, see whether this refreshes your recollection?
A. Yes, it does.
Q. Did you have any agreement in December, 1947?
A. Yes, we had an agreement but it was more of a mutual agreement.
In view of the foregoing, the undersigned is convinced and finds that Jacobs
at all times material herein was a supervisory employee within the meaning of
Section 2 (11) of the Act. It is clear from the record that he not only had the
authority to, but actually exercised practically all the attributes of a super-
visory employee as described in the above section of the Act.
As regards Dorothy Shoebridge, according to Merchant's credible testimony,
she was a "supervisor and led the girl employees." She was responsible for
the production of the girls she directed ; to see that they performed their work
in a proper manner ; she transmitted Merchant's instructions directly to the
employees under her; she had authority to hire and discharge employees or
effectively recommend such action ; transferred employees from one job to
another; enforced safety rules when possible to do so; and reported directly
to Merchant derelictions in the work of employees directly under her super-
vision.
In view of the foregoing, the undersigned is convinced that Shoebridge likewise
was a supervisory employee within the meaning of Section 2 (11) of the Act.
As to Trowbridge, his status as a supervisory employee is not as clear as that
of Jacobs and Shoebridge. The record does show, however, that at the time the
permanent organization of PMBA was effectuated in June of 1948, he was the
supervisor. in charge of the night shift. According to the credible testimony of
Merchant and Trowbridge, the Respondent operated a night shift during the
summer months of 1948 and at least during part of September 1948. Merchant
testified that during this period Trowbridge was in charge of the night shift,.
and that he had three or four people working under his supervision.. His duties
were as 'follows : assign work to the employees ; transfer them from machine
to machine ; assume the responsibility for the production of the employees ; and
keep a record of and report to Merchant the production of the employees under
his supervision.
. In view of the above, and upon the record as a whole, the undersigned is con-
vinced, and he so finds, that at all times material herein, Elba Trowbridge was.
a supervisory employee within the meaning of Section 2 (11) of the Act.
PEERLESS INDUSTRIES, INC. 1341
Merchant further testified that on occasion Herbert Rosenthal, son of Jack
Rosenthal, acted in a supervisory capacity with the title of "leader-foreman." In
view of Merchant's testimony in this regard the undersigned finds that Herbert
Rosenthal was a supervisory employee within the meaning of Section 2 (11) of
the Act. His finding in this regard is buttressed by the fact that Merchant's
testimony in this regard stands undenied in the record. Moreover, the Respond-
ent did not choose to call Herbert ,kosenthal as a witness and no showing was
made at the hearing that he was unavailable as such.
A. Domination and interference with the formation of the Peerless Mutual Benefit
Association 8
While it is true that the consent decree referred to above disposed of all
matters pertaining to the allegation in the complaint, that the Respondent
sponsored, dominated, and interfered with the organization of PMBA, and
contributed support thereto, nevertheless, the undersigned is convinced and
finds that no proper understanding of the alleged discriminatory discharge of
Frank Frizell is possible without setting forth herein a complete history of the
organization of PMBA, and the events that flowed therefrom. Of course, by so
doing the undersigned is well aware of the fact that he cannot make any recom-
mendation as regards this particular allegation in the complaint in view of the
terms set forth in said consent decree.
Sometime in the latter part of September 1947, Plant Superintendent Merchant
in a conversation with George Dubrico, an employee of the Respondent, suggested
that since the Respondent's contract with the CIO had terminated it might be
a good idea to form an independent union. Dubrico agreed with Merchant and
stated that he also thought it was a good idea. Shortly thereafter Dubrico
discussed the proposition with Shoebridge and Trowbridge, and they agreed that
such an organization should be formed. Following their conversation they
discussed the formation of a "company" union with Merchant. He advised them
that they should go ahead and form such an organization and that it had the
approval of management. A few days, later ° Merchant called a meeting of all
the employees and told those assembled that the purpose of the meeting was
to organize a benefit association providing among other things insurance bene-
fits, and to secure a contract with the Respondent as regards wages, hours, and
other conditions of employment. In the course of the meeting, at which Mer-
chant presided, a tentative organization was formed and the following officers
were elected by voice vote : George Dubrico, president ; Elba Trowbridge, vice
president; Dorothy Shoebridge, secretary-treasurer. In addition to the selection
of officers, Dubrico, who had had some experience with labor organizations, was
instructed to draft a "set of by-laws,"" for the organization which was to be
known as the Peerless Mutual Benefit Association.
Dubrico, following his election to the presidency of the PMBA, lost interest in
the organization and took no active part in furthering its organization or accom-
8 Except where such matters as conflicts in the evidence and credibility of witnesses
are discussed herein below, the findings in this section of the Intermediate Report are made
upon evidence which is either undisputed or which is at variance only as to immaterial
details, or are made upon the preponderance of the reliable, probative, and substantial
evidence in the record considered as a whole.
0 The record is not clear as to the exact date of the meeting, but does indicate that it was
held sometime either in the latter part of October or the first part of November 1947.
10 The record is not clear as to whether he was Instructed to draft bylaws or an agree-
ment to be submitted to the Respondent . The documentary evidence indicates that it was
an agreement , and the undersigned so finds.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plishing its purposes as outlined to the employees by Merchant at the above
meeting. As a result of his inactivity in this regard Merchant requested his
resignation. The circumstances surrounding this incident were as follows.
About 5 or 6 weeks after the election, Dubrico had occasion to go to the Re-
spondent's offices and while there met Merchant who asked him if it would be
satisfactory to him (Dubrico) if Louis Jacobs succeeded him as president, be-
cause of his inactivity on behalf of PMBA. Before Dubrico could reply to
Merchant's query and while they were leaving the office they met Jacobs and
Shoebridge. Merchant at this time told Jacobs that Dubrico had consented to
withdraw as president of PMBA. Thereafter Dubrico was inactive on behalf
of PMBA. Prior to his resigning the presidency he had prepared a proposed
set of "by-laws" which he turned over to Jacobs.
Following Dubrico's resignation Merchant called a meeting of the employees
in the plant during working hours, and told them that Dubrico had resigned as
president of PMBA, and that it was necessary to elect a new president. He also
advised them that Louis Jacobs had agreed to serve as such. He then pro-
ceeded to conduct the election and Jacobs was elected president by a voice vote.
On December 16, 1947, the officers of PMBA met with the partners and a
written agreement was signed. For convenience it is attached hereto and
marked Appendix A. An examination of the agreement clearly shows that in
addition to insurance benefits it contained provisions concerning wages, hours,
and other conditions of employment. The agreement was not presented to the
employees for approval before' it was signed by the parties. The Respondent
by its action in this regard thus recognized the PMBA as the exclusive bargaining
representative of its employees. Moreover, it is clear from the record that the
officers of PMBA were neither requested nor required to submit to the Respond-
ent a showing of majority representation of the employees concerned.
Following the signing of the agreement there was little activity by PMBA,
except that it held meetings in January and February 1948. During these
months the Respondent deducted $1 per month from the wages of those em-
ployees who had signed authorization cards for such a deduction. Sometime in
either the latter part of February or the early part of March 1948, one of the
female employees became ill and was forced to absent herself from work. When
she recovered from her illness and returned to work she requested the sick bene-
fit of $15 per week as provided for in the agreement. PMBA was financially
unable to meet her demands. Following this incident the employees became dis-
gusted and as a result PMBA became inactive. At. about this time the
Respondent ceased deducting dues from employees' wages.
A short time before the above incident occurred PMBA held a meeting on
February 11, 1948. An examination of the minutes of this meeting shows that
only the officers of PMBA and Merchant were present. At this meeting Mer-
chant, according to the credible testimony of Jacobs, brought up the question
of the "legality" of PMBA. After a discussion in this regard was had it was
moved and seconded that "the Secretary be authorized to have, Articles of
Incorporation prepared for signature of the officers who will serve as the
Incorporators and first Board of Directors."
As indicated above PMBA was inactive during March and April 1948. Some-
time in either March or April 1948, the officers of PMBA met with Harry Gross-
man, attorney for the Respondent, and also one of its directors. According to
the testimony of Jacobs, Shoebridge, and Trowbridge, the meeting took place in
the Respondent's office. Present at the meeting in addition to the officers of
PMBA and Grossman were the following : Jack Rosenthal, Hoffman, and Mer-
PEERLESS INDUSTRIES, INC. 1343
chant. According to the testimony of Jacobs, Shoebridge, and Trowbridge, they
had never met Grossman prior to the meeting and were unaware of the fact that
he was the Respondent's attorney. They also testified that neither of them
requested Grossman's services nor were they aware of the fact that he was at
the plant on that particular day. According to Grossman he just happened
to be at the plant on that day on one of his periodic visits, and Jacobs, Shoe-
bridge, and Trowbridge of their own accord came in to see him, and told him
of their troubles and doubts as regards the legality of PMBA ; he then suggested
that they incorporate so that PMBA could handle funds and become a legal
entity under the laws of the State of Michigan. It is significant that Grossman
throughout his testimony does not mention the fact that Merchant, Jack Rosen-
thal, and Hoffman were present at the meeting. In such a state of the record
and upon the, record as a whole the undersigned rejects Grossman's account
of what transpired, and accepts the testimony of Jacobs, Shoebridge, and Trow-
bridge as to what actually occurred at the meeting, and the circumstances sur-
rounding it. Jacobs also testified that' it was Merchant who brought up the
legality of PMBA at the meeting. After Grossman had explained the procedure
required by the laws of Michigan in order to perfect a corporation, and had
outlined the benefits of such an entity, Jacobs as president of PMBA authorized
him to take the necessary steps to incorporate.
According to Jacobs' credible testimony PMBA neither paid Grossman a fee
for his services nor did he ever render a bill to PMBA for such services.
Grossman admitted that he did not charge PMBA for his services, and ex-
plained that the reason he did not do so was because it was his custom to
give free legal advice to the employees of all his clients when requested
to do so.
Grossman filed the necessary papers with the proper State officials and a charter
was granted PMBA on May 5, 1948. Shorty thereafter a certificate of incor-
poration was received by Jacobs from the State of Michigan. Following its
receipt it was posted on the Respondent's bulletin board for inspection by the
employees. The purposes of the corporation and other pertinent information as
regards its structure are set forth herein below:
Michigan Annual Report for Non-Profit Corporations, filed Jan. 10, 1949,
in Detroit by Peerless Mutual Benefit Association, signed by Louis Jacobs,
president, and by Dorothy M. Shoebridge, Treasurer. This report shows
"Business address where the books and records are located" was 8050 N.
Territorial Rd., Plymouth, Michigan. The corporation was incorporated
May 5, 1948, and its period of incorporation expires May 5, 1958. It was
incorporated under the authority of Act 327, Public Acts of 1931. The
value of all real and personal property is $130.00. Section 4 shows that
the purposes of the corporation are to "relieve distress caused by sickness
of members ; meet with employer regarding matters of betterment of em-
ployees; encourage closer personal acquaintance and friendly spirit of
cooperation ; assist in other matters pertaining to welfare of members and for
attainment of highest order of American citizenship." Officers and Directors
are : Louis Jacobs, president and director, 9610 Gold Arbor, Plymouth ; Elba
Trowbridge, Vice-President and director, 8503 Joy Road, Plymouth ; Dorothy
M. Shoebridge, secretary-treasurer, 519 Fairbrook, Northville.
Shortly after the certificate of incorporation was received the Union started
its organizational drive among the Respondent's employees. The drive was,
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the supervision of James Doddie, International Representative. The
principal and most active protagonist for the Union among the employees in
the plant was Genevieve Wilson, of whom more anon hereinafter. By the
middle of June 1948 , the Union had received application for membership cards
from a majority of the employees in the plant . It was at this time that Doddie
called on the Respondent and advised Jack Rosenthal that the Union repre-
sented a majority of the employees in the plant and requested that it recognize
the Union as the exclusive representative of its employees for the purposes of
collective bargaining . At the time Doddie offered to give Rosenthal proof of
the Union 's majority status . Rosenthal refused Doddie's offer and advised
him that the Respondent could not recognize the Union because it had a con-
tract with PMBA. The activities of the protagonists for the Union were well
known to the Respondent , particularly because of the smallness of the plant
and the conversations between various employees and Supervisors Jacobs, Shoe-
bridge, and Trowbridge , and Superintendent Merchant . In view of the tension
among the employees Merchant instructed Jacobs on June 16, 1948 , to call a
meeting of PMBA. Jacobs complied with Merchant 's request and a meeting
was held during lunch hour , at which Jacobs presided . The minutes of this meet-
ing are attached hereto and marked Appendix B. It will be noted that among
the announcements made by President Jacobs at this meeting was one to the'
effect that the Respondent had offered to advance funds to PMBA in order that
it could begin payment of sick benefits . Trowbridge at the hearing herein testi-
fied reluctantly that the Respondent did advance $200 to PMBA sometime
around July 1 or 2 , 1948. It is also to be noted that Jacobs also announced
that PMBA was the "Sole Bargaining Agent in connection with Company Em-
ployee Relations ." Yet the -minutes reveal that the various benefits referred
to definitely show that they were for members only. Again , and of particular
importance , was Jacob ' s announcement that grievances would be processed by
the grievance committee for members of PMBA only.
Following the meeting of the membership of PMBA all of the employees were
assembled and Jacobs advised them in substance that since there was some
difference of opinion among the employees that an election by secret ballot would
be held to determine whether the Union or PMBA was to be the collective bar-
gaining representative . Merchant also spoke at the meeting. An examination
of the record relative to the remarks made by Merchant at the meeting are
well expressed in the credible testimony of Muriel Bock , which was as follows :
Q. What did you put on the ballots , yes or no, or CIO or PMBA or what?
A. You could put what you wanted.
Q. Weren't there instructions to put the name of the union on it?
A. No.
Q. What were the instructions?
A. That is all they said , was if we didn 't vote for the PMBA if we talked
C10, we ' d be fired . That PMBA was going to be a group insurance , benefit
to the workers. We could not have two organizations . One of the women
said, "Why?" Mr. Merchant said he would not negotiate with the CIO,
that they would lock the doors first.
Q. You are sure of that?
A. Positive.
Following Merchant ' s remarks Jacob caused slips of paper to vote on to be
passed among the employees present. Just before the vote was taken Jacobs
announced that since an employee , Walter Rose , a truck driver , was not present
PEERLESS INDUSTRIES, INC. 1345
that he would vote for him. The result of the vote was 10 for PMBA and 9
for the Union. Several of the employees objected to the manner in which the
vote was taken, particularly as to Jacobs' action in casting Rose's vote. Among
those employees objecting were Frieda Conner, Muriel Bock, Hester Stevens,
and Frank Frizell. The record clearly indicates that the vote was taken on
company time and property. The Respondent admittedly paid the employees
for time spent in the conducting of the meeting of PMBA and the election that
followed. Jacobs, Trowbridge, and Shoebridge also voted in the election and
their participation therein was likewise objected to. As a result of the ob-
jections to the election and its conduct by Jacobs, Merchant ordered another
election to be held after working hours on the same day, Rose was present and
cast his vote personally. The result of this vote was as follows, 10 for the
Union and 9 for PMBA.
Merchant was dissatisfied with the results of the second election and the
next morning, June 17, he ordered another election held to determine whether
the employees desired PMBA to represent them or the Union. Merchant pre-
sided at the meeting. He told the employees that the election would be con-
ducted by a showing of hands. Participating in this election in addition to
Supervisors Jacobs, Shoebridge, and Trowbridge, were the girls from the office.
Those who were in favor of PMBA were to raise their hands, and those in favor
of the Union were to do likewise. The result of the election was 11 for PMBA
and 9 for the Union. This was the last election held in the plant. - .
On June 30, 1948, PMBA held a meeting at which Superintendent Merchant
was present. He announced to the membership that the Respondent was grant-
ing a 5 cents per hour wage increase to be effective July 1, 1948. He also an-
nounced that the Respondent was working out a bonus plan to be paid to the
employees in December 1948. Other business transacted at the meeting in-
cluded the adoption of bylaws and the appointment of a committee to draft
an agreement to be presented to the Respondent. In addition to- the officers
of PMBA, three members at large were designated by Jacobs to serve on this
committee.
It is significant that at the time Merchant announced to the membership of
PMBA the Respondent's proposed bonus plan, and the 5 cent per hour general
increase that the Respondent was well aware of the Union's claim that it had
been designated as the exclusive collective bargaining representative by a
majority of the Respondent's employees.
According to Shoebridge," whom the undersigned has found above to have
been a supervisory employee at the time the events herein occurred, Harry Gross-
man, the Respondent's attorney, prepared the bylaws referred to in the minutes
of the. meeting of June 30, 1948. They are attached hereto and marked Ap-
pendix C. Grossman in his testimony did not specifically deny drafting the
bylaws, but he did testify that the only work lie had done for PMBA was
preparing the papers for its incorporation. In view of Trowbridge's testimony
and that of other witnesses called by both the Respondent and the General
Counsel as regards Grossman's activities the undersigned rejects his testimony
in this regard and credits that of Trowbridge. In view of the importance that
the undersigned attaches to Trowbridge's affidavit, the following excerpts from
it are set forth herein below :
" This finding is predicated upon statements made by her in an affidavit , and upon
her testimony on cross -examination by the General Counsel.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Dubrico drew up the first contract with the company, and it was
signed Dec. 16, 1947, and the company staited taking $1.00 per month from
all employees who had been there over 30 days, and the company matched
this with company money, paid to the PMBA treasury. This continued until
March 1948, when Harry Grossman, a lawyer, advised us that we should
have a state charter in order to handle funds. So he drew up an applica-
tion for a charter and sent it to Lansing. This charter was dated May 5,
1948, and received by us shortly afterward.
On June 30, 1948, the Company allowed PMBA to hold a meeting of
all employees on company time, in the middle of the shop, right after the
lunch period. Mr. Merchant spoke first and announced that effective im-
mediately all employees were being given 5¢ per hour raise in pay, and
that in addition the company was giving consideration to some sort of
bonus system, the details of which have not been worked out as yet. Then
Merchant left the meeting, and Mr. Jacobs presided and read to the em-
ployees some by-laws for the union, prepared by Harry Grossman. The
employees had a hand vote and accepted the by-laws without change.
Then Mr. Jacobs selected a committee consisting of Olive Forcyth, Agnes
Duba, and Walter Rose. This committee was to work with the three PMBA
officers in drawing up a contract to present to the company. Jacobs sug-
gested that this be done, within a week. Later some of the committee and
officers got together and worked out a contract, using as a guide other union
contracts as well as our own ideas of what we wanted in a contract. About
15 minutes before quitting time, all of us, except Walter Rose. who was
absent on a truck run, met and read the results of our work and approved
the contract as we had drawn it up. Rose had said he would accept what-
ever the rest of us decided on. Lou Jacobs took the "rough" contract home
and typed it up that night. It was presented to the company on July 2, 1948,
and after a few minor changes, was signed and went into effect that day.
This meeting of June 30 was attended by all the shop employees, includ-
ing the four who had not joined the PMBA (Frank Frizell, Hester Bank,
Muriel Bock, and Frieda Conner) and by one office girl. The other office
girl, Miss Moore did not attend. She is not now a member of PMBA. She
is Hoffman's secretary, and is in a confidential category, hardly eligible
for membership. At this meeting Mr. Merchant stated that he did not want
any discussion of the CIO nor any other union during working hours nor
paid rest periods. He stated that the company would allow regular PMBA
meetings during company time.
I asked a number of the girls to join the PMBA because of the clause
in the contract requiring that they join in order to retain their jobs. I
favored the PMBA and did not like the CIO and this was no secret, but
it was my own personal opinion, not the opinion of the company.
Following the meeting of June 30, 1948, the committee appointed by Jacobs
to draft a proposed agreement with the Respondent met and working from
copies of various union contracts with other companies drafted an agreement
for submission to the Respondent.
On July 2, 1948, the committee met with representatives of the Respondent.
Present for the Respondent were the following : Jack Rosenthal, Hoffman,
Attorney Grossman, and Merchant. The proposed agreement was discussed-
by the parties and after a few minor changes was signed by their respective
representatives. The proposed agreement drafted by the committee was neither
PEERLESS INDUSTRIES, INC. ' 1347
submitted to the members of PMBA nor to the employees as a whole for their
approval before it was signed by the parties . Among the various articles set
forth in the agreement was one providing for a union shop . This provision is
set forth in Article I, which reads as follows :
ARTICLE I
Recognition
SECTION 1 . The Company agrees to recognize Peerless Mutual Benefit Asso-
ciation as the sole collective bargaining Agency for its employees , and agrees
not to negotiate or enter into any agreement with any other organization
during the life of this contract.
SECTION 2 . It is further agreed that each employee must be a member of
the Peerless Mutual Benefit Association in good standing as, a requisite of
employment.
SECTION 3 . It is also agreed that new employees must join the Peerless
Mutual Benefit Association within thirty (30) days after hire. Old employ-
ees must join the PMBA within ten days from above date.
SECTION 4. The Company agrees to deduct dues once each month from the
salary or wages coming under the jurisdiction of the Association. All sums
deducted should be remitted to the Treasury of the Association and matched
with a like sum from the Peerless Industries Inc., not later than the 20th
day of the calendar month in which such deductions are made. The Com-
pany will furnish the secretary of the Association monthly, a record of
those for whom deductions have been made together with the amounts of
such deductions.
As indicated above the Agreement required old employees to join PMBA
within 10 days from the date of signing, July 2, 1948, as a condition precedent
to their continued employment. Conner, Bock, Stevens, and Frizell were warned
by Merchant that if they did not join PMBA within 10 days they would be dis-
charged by the Respondent under the terms of its contract with PMBA. All
refused to do so, and as a result were summarily discharged , as will be described
more fully hereinafter. -
On August 3, 1948, the Union filed a charge with the Board on behalf of a
number of employees alleging that the Respondent had violated Section 8 (a)
(1), (2), and (3) of the Act. Thus the Respondent was on notice that it was
charged with dominating and interfering with the formation or administration
of PDIBA, in violation of Section 8 (a) (1)) and (2) of the Act. It was further
put on notice in this regard when it was notified and warned to cease and desist
from discharging employees under the terms of Article I of its agreement with
PMBA, by a field examiner of the Board. In spite of this knowledge the Respond-
ent continued to recognize PMBA.
On October 29, 1948, the Union filed a petition for certification of representa-
tives under the provisions of Section 9 (c) of the Act, alleging therein that
a question concerning representation had arisen and requested that the Board
proceed to determine the question under its proper authority . It further alleged
that "the appropriate unit involved included all employees of the company but
excluding office and clerical employees , foreman, watchmen , and supervisory
employees as defined in the Act." Hence the Respondent was again put on
notice that a rival labor organization claimed to represent its employees.
917572-51-vol. 91-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 20, 1949, PMBA at a duly called and held meeting resolved by a
vote of a majority of the members present to amend Articles I, II, III, and IV
of its Articles of Incorporation, but the resolution was not filed with proper
State officials until June 3, 1949. Following excerpt from the official Certi-
fication of Amendment is set forth herein below.
ARTICLE I
The name of this corporation is INDEPENDENT PEERLESS
EMPLOYEES UNION. That Article II, be and the same is amended to
read as follows, viz :
ARTICLE II
The sole purpose being to establish itself as a collective bargaining agency
for all of the employees of Peerless Industries, Inc., of Plymouth, Michigan,
in accordance with the provisions of the Labor Management Relations Act
and such other legislation, National and/or State, as may be enacted, in
order that the hourly work employees of said company, its successors or
assigns, may have .a responsible unit for such bargaining and for dealing
with the employer concerning grievances, labor disputes, rates of pay, hours
of employment, conditions of work and the prevention of unnecessary inter-
ruption of interstate commerce in which the common employer is or may
be engaged by doing away with lock-outs, strikes and other disorders with
consequent loss of wages to the employees. That Article IV thereof be
and the same is amended to read as follows, viz :
ARTICLE IV
Said corporation is to be financed under the following general plan:
Dues of $1.00 per month per member ; and Initiation Fees of, $2.00 per
member. Said corporation is organized upon a non-stock basis. The
amount of assets which said corporation possesses is:
Real Property-none.
Personal Property-none.
That Article III thereof be and the same is amended to read as follows,
viz :
ARTICLE III
Location of the registered office is: 19880 Maxwell Road, Northville,
Michigan.
Post Office Address of registered office is: 19880 Maxwell Road, Northville,
Michigan.
On August 2, 1949, the Respondent and the successor corporation, the In-
dependent Peerless Union entered into a collective bargaining agreement. The
only pertinent difference between this agreement and the 1948 agreement with
PMBA insofar as this section of the report is concerned is found in Article I,
which reads as follows :
ARTICLE I
Recognition
SECTION 1. The Company agrees to recognize the Independent Peerless
Workers Union as the sole collective bargaining Agency for its Union, and
PEERLESS INDUSTRIES, INC. 1349
agrees not to negotiate or enter into any agreement with any other
organization during the life of this contract.
SECTION 2. The Company agrees to deduct dues once each month from
the salary or wages coming under the jurisdiction of the Union. All sums
deducted should be remitted to the Treasury of the Union not later than the
20th day of the calendar month in which such deductions are made. The
Company will furnish the secretary of the Union, monthly, a record of
those for whom deduction have been made together with the amounts of
such deduction.
Conclusion
The sole issue involved in this section of the Intermediate Report is whether
there is reliable, probative, and substantial evidence in the record to support
the allegations in the complaint that the Partnership and its successor the
Respondent dominated and interfered with the formation and administration of,
and contributed support to PMBA and its successor the Independent in violation
of Section 8 (a) (2) and (1) of the Act.
The record clearly shows that the Respondent by its Plant Superintendent
Merchant initiated and sponsored the unincorporated PMBA. Merchant in turn
solicited the aid of his entire supervisory staff-Jacobs, Shoebridge, Trow-
bridge, and Herbert Rosenthal, the son of Jack Rosenthal, one of the partners.
Their activities in this regard are so clearly violative of the Act that in the
considered opinion of the undersigned no extensive rationale is either necessary
or desirable in his Intermediate Report. Suffice it to say, however, that the
Board and the courts in a long line of cases have consistently held that the
Act imposes a duty or obligation upon the part of an employer not to intrude
upon the rights of its employees as regards self-organizational efforts.
It is obvious from the facts found hereinabove that the Respondent not only
initiated and sponsored PMBA and its successor the Independent," but engaged
in numerous other acts which clearly show not only assistance to PMBA and
the Independent but complete domination of their internal affairs from the date
of their inception. The complete domination of both PMBA and the Independ-
ent is clearly set forth above. Witness the activities of Merchant and the en-
tire supervisory hierarchy. The record clearly shows that the Respondent made
available to the Independent its office and plant facilities, such as free station-
ery, stenographic services, and the use of the plant premises for meeting pur-
poses." Additional indicia of domination is the undisputed fact that Merchant
not only presided at meetings of the Independent but dictated its policies as well.
Meetings of the Independent were called by Jacobs whenever Merchant deemed
it desirable to do so. Probably the most flagrant violation of the Act was the
action of Merchant in calling the three elections to "select" an exclusive bar-
gaining representative for the purposes of collective bargaining on company time
and property, and the payment to the employees of their wages for the time lost
from work." The record is clear that the Respondent was well aware of the
Union's organizational drive, and that a substantial number of its employees,
in fact a majority of them, desired the Union to represent them and not the In-
"Where the undersigned feels it necessary to refer to P-MBA and the Independent as
separate entities he will do so , otherwise he will for the sake of brevity refer to both as
the Independent.
13 Superior Engraving Company, 83 NLRB 215.
14lhyman-Gordon Co. v. N. L. R. B., 319 U. S. 533, 540 (C. A. 7) ; N. L. R. B. v. Burry
Bi,se i.t Corp., 123 P. 2d 540, 542-543 (C. A. 7) ; Remington Arms Co., Inc., 62 NLRB 611.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dependent at the time it conducted the elections 16 This is evidenced by the
following facts : ( 1) In the first election except for Jacobs' "proxy" vote for Rose
the union adherents would have had a clear majority , and the further fact that
four supervisors voted who under the Act would have been excluded from the
unit and hence ineligible to vote; 'e ( 2) in the second election the union ad -
herents had a majority in spite of the fact that four supervisory employees
voted and ( 3) in the third election the Respondent , in order to make sure that
the PMBA won , permitted the clericals to vote, which but for their votes and the
votes of the four supervisory employees would have shown that a majority of
the employees desired the Union to represent them for the purposes of collec-
tive bargaining . Such conduct on the part of the Respondent is not only indicia.
of support rendered to the Independent but is positive evidence thereof.
Furiiher evidence of the Respondent ' s domination and support of PIMA.
was its suggestion that it incorporate in order to give it the color of legality„
and without the knowledge of either the membership or its officers retained the-
services of its own attorney , who was also one of its directors , to handle the
matter."
Further substantial evidence of the Respondent 's support of the Independent:
was its hasty execution of a contract with it without any prior history of genuine
collective bargaining and with full knowledge of the Union's conflicting mem-
bership claim.18 The contract itself clearly evidences support of the rankest:
degree in that it provided for dues checkoff and a union shop in the face of the
fact that the Respondent well knew that such provision had not even been dis-
cussed with the rank-and-file members of the Independent . Moreover, clues
from members of the Independent were collected without first securing from:
them signed authorization cards ." This was a clear violation of Section 302.
of the Act . Again the Respondent and the Independent agreeing to a union
shop without first complying with Section 9 (e) (1) of the Act was likewise-
such a flagrant violation of the Act that in the considered opinion of the under--,
signed it requires no further comment.
The record is clear that -the Respondent contributed financial support to the.
Independent especially when it donated $200 to its treasury after the con--
tract was signed. The testimony of Trowbridge , one of Respondent 's own wit--
nesses, in this regard stands undenied in the record . Clearly such conduct.
is violative of the Act and the Board and the courts have so held in a long line
of eases20
The activities of Merchant and Shoebridge in urging and persuading employees
to join the Independent , and threatening them with loss of benefits such as vaca-
tions and leaves of absence -if they failed to do so were also violative of the Act,
and further evidence of support of the Independent . Their threats of reprisal'.
to employees if they joined the Union were likewise violative of the Act and
constitute further evidence of support of the Independent . In addition their-
16 Iowa Electric Company, 50 NLRB 981 ; Lane Lifeboat and Davit Corporation, 60 NLRB-
473; The Louisville Railway Company , 69 NLRB 691 ; C. Ray Randall Mfg . Co., 88 NLRB
140.
16 Section 2 (3) of the Act.
17 Superior Engraving Co., supra
18 Douglass Canning Co., 85 NLRB 1004 ; United Steel Fabricators , Inc., 50 NLRB 752.
19 There is some evidence that when PMBA was first organized , authorization cards were-
required , but there is no evidence that this was the case after PMBA was incorporated-
and the contract of July 2 , 1.948, was signed by . the parties.
20 Wyman-Gordon Company;:.82 NLRB 561 ; Tiebin-Picker and Company , 50 NLRB 928
Kropp Forge Co., et al ., 68 NLRB 617.
PEERLESS INDUSTRIES, INC. 1351
remarks were coercive , on their face , and were unquestionably uttered solely
for the purpose of forcing reluctant employees to join the Union.
As found above, the July 2, 1948, contract with PMBA contained a provision
that required employees to become and remain members of PMBA as a condition
of employment. Four employees, Conner, Bock, Stevens, and Frizell refused to
join PMBA and as a result were discharged by Merchant n There is not a scin-
tilla of evidence in the record showing that the above employees were discharged
at the request of PMBA. Thus we have a situation that is most unusual in that
-here we find the superintendent of the plant delegating to himself the power to
.police the contract of a labor organization. If any additional evidence were
necessary to make a finding as regards the Respondent's support of PMBA, cer-
,tainly Merchant's action in discharging the above employees under the circum-
stances found above is amply sufficient to support such a finding.
As found above, the Union filed a petition for certification of representatives
under Section 9 (c) of the Act, October 29, 1948, with the Regional Director of
the Fifth Region . With the filing of the petition , the Respondent was once again
placed on notice that the Union claimed an interest among the Respondent's
employees, but in the face of such notice, the Respondent once again flouted the
law and ignored axiomatic principles that have been laid down by the Board
and the courts in numerous cases over the years, and entered into a contract
with the Independent on August 8, 1949. Moreover , here again the Respondent
made no attempt to ascertain the majority status of the Union. Such conduct
on the part of the Respondent clearly persuasively indicates support of the In-
.dependent and is violative of Section 8 (a) (2) and ( 1) of the Act.
The record clearly shows that members and officers of PMBA were permitted
to solicit membership at will on company time and property, while on the other
hand, adherents of the Union were prohibited from doing so under threat of dis-
charge by Merchant. Clearly such conduct is persuasive indication of a violation
,of the Act ZZ
Upon the record as a whole the undersigned is convinced and finds that both
the Partnership and the Respondent have urged, persuaded, and warned their
employees by threats of economic reprisal to assist , become and remain members
of the Independent, and have assisted, contributed to the support of and inte-
fered with, restrained, and coerced their employees in the exercise of the rights
:guaranteed in Section 7 of the Act. The undersigned further finds that Respond-
ent, by making antiunion statements as set forth above by urging and persuading
their employees to refrain from joining the Union; by their campaign against
the Union ; by their requirement that employees as a condition of employment,
become and remain members of PMBA inc. ; by each of the foregoing, and by
-other acts set forth above, have interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
by such conduct have specifically violated Section 8 (a) (2) and (1) of said Act.
As indicated above, the undersigned will make no recommendation in this
Intermediate Report as regards the allegation in the complaint that by the
n The Respondent concedes that it discharged Conner, Bock , and Stevens , but contends
that Frizell was discharged for cause . The discriminatory discharges of Conner, Bock,
and Stevens were disposed of in the settlement agreement described above. As will be
shown hereinafter , the undersigned finds that Frizell was likewise discriminatorily dis-
charged because of his activities on behalf of the Union, and because he refused to join
PMBA.
12N. L. R. B. v. Link-Belt Co., 311 U. S. 584; N. L. R. B. v. Falk Corporation, 308 U. S.
453.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct described above, the Respondent violated Section 8 (a) (2) and (1) of
the Act, since all matters concerning this allegation were disposed of by the terms
of the settlement agreement, and the Board's Decision and Order based thereon
which as indicated above was issued on April 12, 1950.
The Discriminatory Discharge of Frank Frizell
Frank Frizell was hired by the Partnership as a tool maker on January 6, 1947.
He worked directly under Merchant who was also his son-in-law. His duties
required him to make tools and the like for use in the shop.
Frizell testified without contradiction that sometime in May 1948, he and
Merchant had an argument about the construction of a chuck for a lathe. Frizell
contended that it was constructed one way and Merchant was of the opposite
opinion. The upshot of the argument was that Frizell took it apart and proved
his point. As a result of the argument Frizell,turned in his resignation to
Rosenthal. At the time Merchant was in Detroit on business. Rosenthal got in
touch with Merchant and requested that he return to Plymouth at once for the
purpose of discussing Frizell's resignation. Merchant did so, and as a result,
Frizell was persuaded to withdraw his resignation and to continue his employ-
ment with the Respondent.
Frizell participated in the elections of June 16 and 17, 1948, and was one of
those who publicly protested the conduct of the elections. He joined the
Union in May 1948. As indicated above, Frizell was one of the four employees
who refused to join PMBA. On July 7, Merchant told Frizell that under the
terms of the Respondent's agreement with PMBA he would have to join the
latter within 10 days. Frizell refused to do so and was discharged by Merchant
on July 13, 1948. At the time Merchant discharged Frizell, he told him it was
because he left a Du-More grinder on his work bench.
According to Merchant this and past derelictions were the real reasons for
Frizell's discharge. This defense was likewise advanced by Jack Rosenthal and
Hoffman.
Jack Rosenthal testified that he had on several occasions, before Frizell's
discharge, called Merchant's attention to the condition of the toolroom where
Frizell worked, particularly as regards its housekeeping. According to Rosen-
thal, Frizell did not put away his tools, and failed to keep the lathes and other
machines assigned to him clean; and Merchant was unable to get Frizell to,
correct his habits in this regard. On the Saturday morning before Frizell's dis-
charge, Rosenthal, as was his custom, went to the plant for his weekly inspec-
tion of the machinery, etc. In his tour of the plant he found a Du-More grinder
on the floor in the toolroom. He immediately went to Merchant who was also in
the plant at the time and called his attention to the grinder. He told Merchant
in substance that this was the "last straw" and that he would have to discharge
Frizell.
Rosenthal further testified that he and Merchant were the only persons in
the plant at the time.
Russell Hoffman, president of the Respondent, testified that he, like Rosenthal,
made it his practice to go through the plant on Saturday mornings and check up
on conditions therein, and that he also had called Merchant's attention to Frizell's
derelictions on numerous occasions. He further testified that he was in the
plant on the Saturday before Frizell's discharge and it was he and not Rosen-
thal who found the grinder on the floor and that he personally picked it up and
put it on the work bench. He then went to Rosenthal and Merchant and told them
of the incident. At the same time he informed Merchant in substance that he
PEERLESS INDUSTRIES, INC. 1353
would have to discharge Frizell, or the Respondent was going to make a
change in supervision. -
It is interesting to note that there is a glaring inconsistency in the testimony
of Hoffman and Rosenthal as regards the grinder incident. For example Rosen-
thal testified he found the grinder on the floor and called Merchant's attention
to it, and that he and Merchant were alone in the plant at the time. He did not
mention Hoffman once in his testimony regarding the grinder incident. Hoff-
man's version was that it was he who found the grinder on the floor and picked
it up and laid it on the work bench, after which he informed Rosenthal and
Merchant in this regard.
Merchant on the other hand testified that it was Hoffman, not Rosenthal, who
found the grinder on the floor the preceding Friday night, and informed him of the
incident on Saturday morning, and at that time Hoffman instructed him to dis-
charge Frizell. He further testified that the grinder was on the bench when he
saw it and that it was Frizell who put it there.
Merchant also testified that -he "couldn't recall" whether Rosenthal was in
the plant or not on the morning the grinder incident occurred.
Frizell admitted that he left the grinder on the bench, but testified that he
had done so before and had not been reprimanded for doing so by any member
of management. He also admitted that Merchant had cautioned him about
keeping the toolroom clean on at least two occasions. It is significant, however,
that Merchant's reprimands occurred on June 15 and 10, 1948, at the time the
Union was most active in the plant, and on the date that the first two of the
"elections" were conducted by Merchant.
Another important inconsistency in the testimony of Hoffman and Rosenthal
is the fact that: (1) both testified that one of the reasons Merchant failed to dis-
cipline Frizell was because of their family relationship; and (2) both testified
that there was "bad" feeling between the two men, and for that reason Frizell
refused to follow Merchant's orders.
In view of the above-described inconsistencies in the testimony of Hoffman,
Jack Rosenthal, and Merchant and upon the. record as a whole, particularly
Frizell's testimony as regards his resignation a short time before his discharge,
the undersigned is convinced and finds that there is no merit whatsoever in the-
contention of the Respondent that Frizell was discharged for cause, and that
the reasons advanced by it in this regard are mere pretext, and that the true
reason for his discharge was that Frizell refused to join PMBA and his activities
on behalf of the Union.
The record clearly shows and the undersigned has found above that PMBA
and its successor were sponsored, supported, and dominated by the Partnership
and the Respondent in violation of Section 8 (a) (2) and (1) of the Act.
The undersigned has also found above that the original agreement between
the Respondent and PMBA was entered into on July 2, 1948. This was almost
a year after the effective date of the amended Act August 22, 1947. Hence
since neither the Respondent nor PMBA complied with Section 9 (e) of the
Act, it follows that the Respondent is not entitled to the protection of Section
102 and 103 of the Act, or of the proviso in Section 8 (a) (3) of the Act as a
defense to its illegal discharge of Frizell.`'
The Respondent admits that it discharged Conner, Bock, and Stevens because-
they refused to become and remain members of PMBA, but defends its action
in this regard on the ground that it was compelled to do so by virtue of the
28 See Clara-Val Packing Company and Nora E. Stiers , an individual, 87 NLRB 703;-.
H. Milton Newman, an individual d/b/a H. M. Newman, 85 NLRB.725.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security provision in its agreement with PMBA. Under certain circum-
stances, the Respondent's defense would be valid, but certainly not under the
facts herein. The Act permits the execution of such an agreement between
employers and labor organizations but only when the parties to such an agree-
ment have complied with certain statutory requirements as set forth in the
Act. Such is not the case herein. Section 9 (e) of the Act legalizes union-
security agreements between employers and labor organizations. It is set forth
herein below :
(e) (1) Upon the filing with the Board by a labor organization, which is the
representative of employees as provided in section 9 (a), of a petition al-
leging that 30 per centum or more of the employees within a unit claimed to
be appropriate for such purposes desire to authorize such labor organization
to make an agreement with the employer of such employees requiring
membership in such labor organization as a condition of employment in such
unit, upon an appropriate showing thereof the Board shall, if no question
of representation.. exists,. take a secret ballot of such _, employees, and shall
certify the results thereof to such labor organization and to the employer.
The record is clear that the Respondent and its creature PMBA completely
ignored each and every requirement set forth in Section 9 (e) of the Act. In
the first place PMBA was not the designated or selected representative of a ma-
jority of the Respondent's employees in an appropriate unit within the meaning
of Section 9 (a) of the Act. It was merely, as the undersigned has found above,
a creation of the Respondent to thwart its employees in their attempt to exer-
cise the rights guaranteed them by Section 7 of the Act. Hence any agreement
-which the Respondent entered into with PMBA was invalid ab initio. It is
axiomatic that a person cannot enter into a contract with his alter ego. Again,
assuming that PMBA did represent a majority of the employees it would have
been legally impossible for it to have entered into a union-security agreement
with the Respondent for the reason that any majority it might have clearly
was not an uncoerced majority which is a fundamental and statutory require-
ment that a labor organization must meet before it can invoke the processes of
the Board. As the Board recently said in Salant and Salant, 88 NLRB 816,
where an analogous issue was involved, "Indeed, we have generally held that
such an agreement constitutes a violation of the-Act only in those situations
where it was made with an organization that was company dominated or which
for some other reason did not represent an uncoerced majority of the em-
ployees." n Such is the situation herein. In such a state of the record it is
clear that by discharging its employees because they refused to comply with the
union-security provision in the argument of July 2, 194S, between the Respondent
.and PMBA was per se violative of the rights guaranteed employees in Section 7 of
the Act. Which in clear and concise language provides inter alia that employees
.may join or refrain from joining labor organizations. Moreover, such conduct
on the part of an employer is likewise per se violative of Section 8 (a) 3 of the
Act. For the reasons set forth above, the undersigned rejects the Respondent's
defense as regards the discharge of Conner, Bock, and Stevens as being without
even the color of merit. In view of the findings set forth above, the undersigned
is convinced and finds that the conclusion reached as regards the discharge of
Conner, Bock, and Stevens is equally applicable to the discharge of Frank Frizell,
.since each of said employees were told by Merchant that it was necessary for
24 See cases cited in Salant and Salant, 88 NLRB 816 ; see also 25 LRRM at page 1392,
issue of March 6, 1950.
PEERLESS INDUSTRIES, INC . 1355
them to join PMBA within 10 days from the date of the Respondent's agree-
ment with PMBA, July 2, 1948, as a condition of employment, and that if they
failed and refused to do so they would be discharged.
Upon the record as a whole, the undersigned concludes and finds that the
Respondent discharged Frank Frizell on July 13, 1948, for the reason that he
joined the Union and engaged in other concerted activities with other employees
of the Respondent for. the purpose of collective bargaining or other mutual aid
or protection, and for the further reason that he refused to become and remain
a member of PMBA as a condition of employment and that by such conduct
the Respondent thereby discriminated against him in regard to. his hire and
tenure of employment, discouraged membership in the Union, and interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, 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 the Respondent has engaged in the unfair labor practices set
forth above,- the undersigned shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to effectuate the policies of
the Act.
The undersigned has found above that Respondent's conduct has exceeded
the bounds of interference and support and definitely shows complete domina-
tion of the Independent since its inception as regards its internal affairs..
Moreover, the Respondent, by its complete domination of the Independent and
Its predecessor, PMBA, caused the latter to enter into an agreement requiring
its employees to become and remain members of PMBA as a condition of em-
ployment in total disregard of Section 9 (e) of the Act, and as a result thereof
caused the illegal discharge of four employees.
It has also been found that the Respondent discriminated against Frank Frizell
in regard to his hire and tenure of employment, thereby discouraging member-
ship in the Union, by discharging him on July 13, 1948. The undersigned shall
recommend that the Respondent offer to Frank Frizell immediate and full
reinstatement to his former or substantially equivalent position 25 without
prejudice to his seniority and other rights and privileges ; and that the Respond-
ent make him whole for any loss of pay, if any, which he suffered as a result
of the discrimination against him, by payment to him of a sum of money equal
to the amount which he 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 29 during that period.
The conduct engaged in by the Respondent discloses a propensity and a
determination on the part of the Respondent to engage in persistent efforts,.
but not necessarily by the same method, to defeat self-organization by its
employees. Because of the Respondent's unlawful conduct and its underlying
21 See Chase National Bank, etc., 65 NLRB-827.
'8 Crossett Lumber Company , 8 NLRB 440.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose, the undersigned is convinced that the unfair labor practices committed
by the Respondent are related to other unfair labor practices proscribed,
and that danger of their commission in the future is to be anticipated from
the Respondent's conduct in the past. The preventive purpose of the Act
will be thwarted unless the recommended order is coextensive with the
threat. In order, therefore, to make effective the interdependent guarantee of
:Section 7, to prevent recurrence of unfair labor practices, and thereby mini-
mize the industrial strife which burdens and obstructs commerce, and thus effec-
tuate the policies of the Act, it will be recommended that the Respondent cease
and desist from in any manner infringing upon the rights guaranteed in Section
7 of the Act.
CONCLUSIONS OF LAw
1, International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (UAW-CIO), and Independent Peerless Employees
Union, formerly known as Peerless Mutual Benefit Association, are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees in the exer-
cise 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 (a)
(1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Frank
Frizell, thereby discouraging membership in a labor organization, the Respondent
.has engaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices' are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended-Order omitted from publication in this volume.]
APPENDIX A
PEERLESS MUTUAL BENEFIT ASSOCIATION
PEERLESS MUTUAL BENEFIT ASSOCIATION hereby petitions PEERLESS INDUSTRIES
for cooperation and permission to organize employees of Peerless Industries
-exclusively, under rules and regulations believe to be fair to both the Company
and employees, as listed below:
ITEM 1: MEMBERSHIP OPTIONAL.
ITEM 2: DUES $1.00 PER MONTH, FROM BOTH TIIE EMPLOYEE AND THE COMPANY
FOr, EACH EMPLOYEE. To BE DEDUCTED AFTER WRITTEN AUTHORIZATION FROM
THE FIRST PAY EACH MONTH. No DEDUCTIONS UNTIL AFTER PROBATIONARY
PERIOD.
ITEM 3: BENEFIT :
(a) $15.00 per week after one week's illness, for three weeks after presenta-
tion of proof from doctor; to be paid by PMBA.
(b) Treasury to be held equal to $15.00 per active member at all times.
ITEM 4: NEW EMPLOYEES :
(a) Thirty (30) days probationary period.
(h) After probationary period 5¢ per hour increase.
ITEM 5: VACATION :
(a) Five (5) days vacation for one (1) year's continuous employment.
(b) This will be paid during the months of June, July and August only.
PEERLESS INDUSTRIES, INC. 1357
ITEM 6: ALL OFFICE SUPPLIES NECESSARY FOR THE FUNCTIONING OF THIS Asso-
-CIATION TO BE FURNISHED BY THE COMPANY.
ITEM 7: DISMISSAL OF AN EMPLOYEE OR ANY VOLUNTARY TERMINATION FOR-
FEITS ANY MEMBERSHIP RIGHTS TO BENEFITS OR CLAIMS ON PMBA TREASURY.
ITEM 8: SUPPLEMENTS TO THIS AGREEMENT CAN BE MADE AT ANY TIME IF MU-
TUALLY AGREED UPON BY OFFICERS OF THIS ASSOCIATION AND MANAGEMENT.
Present officers :
Chairman, LOUIS JACOBS.
Secretary-treasurer, DOROTHY SHOEBRIDGE.
Advisory committee, ELBA TROWBRIDGE.
ITEM 9: THE COMPANY EXPECTS ALL MEMBERS TO LIVE UP TO RULES AND REGU-
LATIONS SET FORTH IN THIS AGREEMENT AT TIME OF EMPLOYMENT.,
ITEM 10: HouRS : The Company agrees to pay each employee time and one-
half after forty (40) hours work in any one week.
ITEM 11: TERM OF OFFICERS TO BE ONE (1) YEAR.
ITEM 12: MEETINGS TO BE HELD SECOND WEDNESDAY OF EACH MONTH. TIME
-TO BE SPECIFIED BY SUPERINTENDENT.
ITEM 13: FINANCIAL REPORT TO BE GIVEN AT EVERY REGULAR MEETING.
IT IS TO BE UNDERSTOOD BY ALL PERSONS CONCERNED, INCLUDING COURTS OF
LAW, MEMBERS OF THE P. M. B. A. AND THE COMPANY, THAT THE FOREGOING
BY-LAWS, RULES AND REGULATIONS WERE CONCEIVED BY AND S UBMITTED TO THE
'CO-1MPANY BY THE CHARTER MEMBERS AND OFFICERS OF THE NEWLY ORGANIZED
P. Al. B. A., THE COMPANY HAVING HAD No VOICE OR PART IN ITS ORGANIZATION
.OR BY-LAWS.
THE ABOVE ARTICLES ARE BEING OFFERED THE COMPANY FOR .APPROVAL OR
-REJECTION.
Peerless Industries : Officers of P. M. B. A.:
(Signed) J. Rosenthal. (Signed) Louis Jacobs, Chairman
(Signed) R. P. Hoffman. (Signed) Dorothy Shoebridge,
Secy-Treas.
(Signed) Elba Trowbridge, Ad-
visory Com.
;Sworn and subscribed to before me this 16th day of December 1947.
(Signed) L. S. MoORE,
Notary Public.
S-2-48.
[Copy]
APPENDIX B
MINUTES-REGULAR MEETING OF THE MEMBERS OF PEERLESS MUTUAL BENEFIT
ASSOCIATION HELD JUNE 16, 1948
1. The minutes of the previous Monthly Meeting were read and approved.
2. There being no Standing Committees, there were no reports.
3, No Special Committees existed.
4. The Chairman then called for Unfinished Business. None being voiced.
5, The Chairman called for New Business, and made the following announce-
ments :
a) THE CHARTER OF INCORPORATION Of PEERLESS MUTUAL BENEFIT ASSOCIATION
has been received from the Michigan Securities Commission.
b) For the benefit of the new members, it was announced that Peerless Mutual
Benefit Association has an agreement with Peerless Industries, Inc. whereby
1358 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
P. M. B. A. is the SOLE BARGAINING AGENT in connection with COMPANY-EMPLOYEE
RELATIONS.
c) The Company is endeavoring to work out a GROUP HOSPITALIZATION PLAN
to submit to the MEMBERS of P. M. B. A.
d) Regarding VACATIONS: In accordance with the agreement with the Man-
agement and the P. M. B. A. By-Laws, vacations will be given to the MEMBERS
only, during the month of June, July, and August, this year. Members of
P. Al. B. A. only, are entitled to, Vacations with Pay, the length of Vacation time
being dependent on length of Employment. Should a Member elect to work
during the time established for his or her vacation period, the Member may
do so and will receive his Vacation Pay in addition to the regular work time
pay, A SENIORITY LIST will be posted on the Shop Bulletin Board today, show-
ing the dates of Employment and the order in which Vacations will be es-
tablished.
e) The Management has offered to advance funds at once to the P. M. B. A.
Treasury so that it will be possible to make immediate sick benefit payments
should they be required, instead of it being necessary to wait until sufficient
Treasury Funds have accumulated from Pay-Roll Deductions and the amounts
paid to P. M. B. A. by the Company to match the pay-roll deductions.
f). A Bank Account is being established in the Plymouth United Savings Bank,
and this bank has been designated by the COMMITTEE as the Depository of all
P. 1f. B. A. Funds.
g) ALL GRIEVANCES of Members are to be taken up with the COMMITTEE who,
will discuss them with the MANAGEMENT. The COMMITTEE is composed of Louis
JACOBS, the CHAIRMAN : DOROTHY M. SHOEBRIDGE, SECRETARY ; and ELBA TRow-
BRIDGE, ADVISORY. A MEMBER may report and discuss his or her GRIEVANCE with
either Member of the COMMITTEE.
h) The matter of a P. M. B. A. MEMBER PICNIC will be discussed and planned
at the REGULAR MEETING IN JULY.
i) The COMMITTEE will, meet with the COMPANY MANAGEMENT on Friday,
June 18th, 1948, to discuss various phases of COMPANY-EMPLOYEE RELATIONS,
AMONG them being Classification of Girls based on ability and Work Perform-
ance, as to pay.
THERE BEING No FURTHER BUSINESS, Member Herb Rosenthal moved to adjourn.
Seconded by Harry L. Snyder.
THE MEETING WAS ADJOURNED.
APPENDIX C
SPECIAL MEETING-MEMBERS OF PEERLESS MUTUAL BENEFIT ASSOCIATION HELD
JUNE 30, 1948
Meeting was called to order, a Quorum being present.
The Superintendent, Mr. Merchant, was invited to sit in the meeting to ex-
plain the plan being worked out by the Management and the Committee where-
by a bonus will be paid to very employee in December 1948. Definite details
will be announced in the near future.
The Chairman announced that Management has granted a general five cent
raise per hour for all hourly rated employees effective July 1, 1948.
The Chairman read the Proposed By-Laws to the Meeting, whereupon a
motion to accept the By-Laws as read was made by Dorothy Shoebridge and
seconded by Sarah Sayed, and the Meeting voted acceptance.
PEERLESS INDUSTRIES, INC . 1359
The Chairman appointed the following to act as a Committee to draw up a
Contract between Peerless Mutual Benefit Association and Peerless Industries,
Inc. :
W. Rose - G. Dubrico E. Trowbridge
D. Forsyth D. Shoebridge L. Jacobs
There being no further business to come before the Meeting , motion was made
by George Dubrico to adjourn which was seconded by Sarah Sayed. Motion
carried.
Meeting adjourned.