Sparks-Withington Co.

National Labor Relations Board - Board Decisions

Mar 1, 1940

21 N.L.R.B. 1 (N.L.R.B. 1940)

DECISIONS AND ORDERS OF THE NATIONAL LABOR
RELATIONS BOARD
In the Matter of SPARKS-IVVITHINGTON COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 62
Case No. C-1050.-Decided March 1, 1940
Automobile Warning Horn, Refrigerator, and Radio JIanufacturing Industry-
Interference , Restraint , and Coercion : critical and disparaging statements con-
cerning union and union activity ; threat to discharge union member for union
activity; espionage-Company-Dominated Union: domination of and interfer-
ence with formation and administration; support; falsely attributing bargain-
ing success to ; concessions to encourage membership in; supervisory employees,
membership in and solicitation of membership by, deceptive tactics in soliciting
membership , responsibility of employer for acts of ; encouragement of inside
union by discouraging rival ; disestablished as agency for collective bargaining;
contract with, abrogated-Discrimination: discharge ; charge of , not sustained.
Mr. George J. Bott, for the Board.
Mr. Leland A. Bisbee and Mr. David W. Kendall, of Jackson,
Mich., for the respondent.
Blackman and Blackman, by Mr. Frank L. Blackman, of Jackson,
Mich., for the Society.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union, United Automobile Workers of America, Local No. 62, herein
called the United, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Seventh Region (De-
troit, Michigan), issued its complaint dated September 9, 1938,
against Sparks-Withington Company, Jackson, Michigan, herein
called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing there-
on were duly served upon the respondent and upon the United.
21 N. L. R. B., No.1. -- --1- --
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In respect to the unfair labor practices, the complaint alleged in
substance : (1) that the respondent had encouraged, sponsored, dom-
inated, interfered with the formation and administration of, and
lent financial and other support to, The United Cooperative Society
of Jackson, Inc.,1 herein called the Society; (2) that the respondent
discriminated in regard to hire and tenure of employment by dis-
charging Leslie Vinton in order to discourage membership in the
United; and (3) that by the foregoing acts, the respondent interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. The respondent duly filed
an answer to the complaint, admitting the allegations concerning in-
terstate commerce, but denying that it had engaged in or was engag-
ing in the alleged unfair labor practices. The respondent also filed
a motion to dismiss the complaint on numerous procedural grounds.
Pursuant to notice, a hearing was held at Jackson, Michigan, on
September 22, 23, 27, and 28, 1938, before Henry J. Kent, the Trial
Examiner duly designated by the Board. At the beginning of the
hearing the Trial Examiner granted the Society's motion to inter-
vene, but limited its participation to matters pertaining to the charge
that the respondent had dominated and interfered with its adminis-
tration. The Board, the respondent, and the Society were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties. At
the commencement of the hearing, the respondent renewed its motion
to dismiss the complaint on procedural grounds. The Trial Ex-
aminer denied the motion. Other motions and objections to the ad-
mission of evidence were made and ruled upon at the hearing. At
the conclusion of the hearing counsel for the respondent moved that
the complaint be dismissed. The motion was denied by the Trial
Examiner in his Intermediate Report. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner filed his Intermediate Report, dated
November 19, 1938, copies of which were duly served upon all parties.
The Trial Examiner found that the respondent had engaged in unfair
labor practices within the meaning of Section 8 (1), (2), and (3) and
Section 2 (6) and (7) of the Act and recommeaided-that the respond-
ent cease and desist therefrom, that it withdraw all recognition from
and disestablish the Society as a collective bargaining agent, that it
offer reinstatement with back pay to Leslie Vinton, and that it take
certain other affirmative action remedial of the unfair labor practices.
On December 1, 1938, the respondent and the Society filed their
separate exceptions to the Intermediate Report. On January 3, 1939,
1 Incorrectly designated as The United Cooperative Society, Inc in the complaint
SPARKS-WITHINGTON COMPANY 3
the respondent and the Society filed their respective briefs, which have
been considered by the Board. On September 12, 1939, pursuant to
notice, a hearing for the purpose of oral argument was had before
the Board at Washington, D. C. The respondent and the Society
appeared and participated in the oral argument. On September 16,
1939, pursuant to leave granted at the oral argument, the respondent
filed a supplemental brief.
The Board has considered the exceptions of the respondent and the
Society to the Intermediate Report and, in so far as they are incon-
sistent with the findings, conclusions, and order set forth below, finds
them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Sparks-Withington Company is an Ohio corporation having its
principal place of business in Jackson, Michigan. It is engaged in the
manufacture and sale of automobile horns, radio receiving sets, and
electric refrigerators at its four plants in and adjacent to Jackson,
Michigan. In 1937 raw materials valued at approximately $1,650,000
and constituting 61 per cent of the total raw materials used by the
respondent were shipped to it from points outside the State of Mich-
igan. During the same year finished products valued at $3,350,000,
and, constituting 61 per cent of the total finished products manufac-
tured by the respondent, were shipped to points outside the State
of Michigan.
II. THE ORG 1NIZATIONS INVOLVED
International Union, United Automobile Workers of America,
Local No. 62, is a labor organization which at the time of the hearing
was affiliated with the Committee for Industrial Organization= It
admits to membership employees of the respondent as well as em-
ployees of other employers in Jackson.
The United Cooperative Society of Jackson, Inc., is an unaffiliated
labor organization admitting to membership employees of the re-
spondent, exclusive of executives, superintendents, foremen, and sub-
foremen.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Early in 1937 the United was organized and started to solicit
members among the respondent's employees. During the succeeding
2 Now the Congress of Industrial Organizations
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
months, the respondent, through its supervisory employees, sought
to discourage its employees from becoming or remaining members of
that labor organization.
In April 1937 one Darling, at that time one of the respondent's
employment managers, asked Elgin Holt, a member of the United,
to appear at his office. Upon Holt's arrival, Darling reminded him
that they were friends and asked Holt what he knew about union
activity in the shop. When Holt replied that he knew little, Darling
offered to pay his dues if he would join the United and report to
him the names and total number of the employees who had joined.
Holt did not tell Darling that he was a member of the United. He
refused to inform on the members of the United, but agreed to and
did report on their number.
At about the same time Arthur Porter, one of the respondent's
foremen and Vinton's superior, warned Leslie Vinton, at that time a
tool and die maker employed by the respondent : "I understand you
are a second John Lewis . . . I'm telling you now, you want to
watch your step, because if they get anything on you, they are
going to let you go." Porter did not deny having made the state-
ment, but sought to explain it as a move to induce Vinton to work
harder. The statement, however, regardless of Porter's motive in
making it, plainly amounted to a threat calculated to discourage
Vinton's union activity.
In April or May 1937, shortly after he started to wear his United
button, Edgar Lawton, an employee in the horn division, asked Orest
Allread, superintendent of production in the horn plant, for some
materials and tools to use at home. Lawton testified that twice
within the ensuing month Allread, reminding him that he had done
a favor for him asked, "Why do you keep working against me?" and
that at first Allread refused to explain what he meant thereby, but
at Lawton's insistence, Allread replied, "I guess you know well
enough." According to Allread, Lawton was dissatisfied and com-
plaining and accordingly he said to him : "Didn't we help you out
a little bit? ... Don't you think you ought to quit talking about
these things? We are doing the best we can; we can not do any
more now than what we are doing." Lawton- had been employed
by the respondent for ten years, and the conversation occurred but
a few weeks after he started to wear a union button. We are con-
vinced on the basis of Lawton's testimony that Allread had refer-
ence to Lawton's union activities and was seeking to discourage him
from continuing his membership in the United.
In late 1937 or early 1938, Nelson Harland, a member of the United
and an employee in the refrigerator division, was returned to work
after a protracted lay-off. Harland testified that at the time of-his
SPARKS-WITHINGTON COMPANY a
reinstatement Darling produced a slip of paper and said, "You are
the second oldest man on the list and next to the last to. be called in.
That is what the union has done for you." According to Sparks,
the respondent's vice president and general manager, Darling had
reported the statement to him as, "That is what the union and
seniority have done for you," saying that he meant thereby that if it
were not for the union, Harland would not have been called back.3
In view of Darling's hostility to the United, we reject Darling's
explanation as testified to by Sparks and find that the statement was
designed to disparage the value of the United to Harland.
We find that the respondent by inducing Holt to engage in espio-
nage upon the United and by the anti-union statements of Darling,
Porter, and Allread described above, has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.4
B. The formation of the Society
Although the time of its inception is not clear, there existed at
the respondent's plants in 1937 a factory council, composed of repre-
sentatives elected by the employees and a group of management
representatives selected by the respondent. At the time of its dis-
solution in May 1937, discussed below, the council was headed by its
chairman, one Kayko, the superintendent of the radio plant. About
the time the United started organizing in the respondent's plants, the
Society was conceived and organized.
Early in February 1937, Lloyd Johnson, Claude Blanchard, Charles
Wyant, and Irvin Luxton, all old employees of more than 15 years'
service, decided to organize an inside union. They were not immedi-
ately concerned with procuring wage increases but their purpose,
as admitted in the testimony of Blanchard and Wyant, was to form
a labor organization to prevent strikes and outside organization of
the horn division of the plant and to provide a method of cooperative
purchasing for its members. About the middle of February, with
this purpose in mind, the four employees called upon Sparks. They
told him that they foresaw "labor trouble" and wished to avoid it,
and to that end were considering forming an inside union to bargain
with the respondent; and that although they knew that they had a
legal right to organize, they wanted to know "if it was all right with
the management." Blanchard, the Society's president, testified that
Sparks demanded as a condition precedent to recognition that the
8 Although Darling was not in the employ of the respondent at the time of the hearing,
no showing was made of his unavailability as a witness , nor did the respondent request
a subpoena for his appearance.
4 The respondent's defense that it is not responsible for the statements and activities
of the above-mentioned employees is considered in section C, tinfi a.
283032-41-vol 21-2
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed labor organization be responsible and incorporate. Sparks
admitted demanding that the labor organization be responsible., but
denied that he had referred to incorporation. In view of Sparks'
admission we accept the testimony of Blanchard and we find that
Sparks made the demand that the proposed union be incorporated.
On February 24, 1937, a meeting was held between Sparks and
Corbett, vice president of the respondent, and the four above-named
employees, who at this time were the only members that the incipient
labor organization had among the respondent's 1,500 employees.
Without suggestion from the four organizers, Sparks proposed a
wage increase which they accepted and which later became effective
on March 1, 1937. There were no further conferences with the re-
spondent until April 21, 1937, after the proposed labor organization
had evolved into the Society.
Following the meeting of February 24, the employees conferred
with Maxwell F. Badgley, an attorney. Shortly thereafter they were
joined by six other employees including Fred Vinton, an employee
described as a "contact man" between the superintendent and the
foremen, who together with the original four became the incorpora-
tors of the Society. Thereupon the Society elected temporary officers
for incorporation purposes, and in competition with the United
started a campaign for members. The bylaws were approved on
April 12, 1937, and the Society was incorporated on April 16, 1937.
On April 28, 1937, the respondent posted a bulletin announcing that
as of May 1, 1937, the factory council would be disestablished in view
of the proscriptions of the Act.
The campaign of the Society for members was carried on by indi-
vidual solicitation in the shop and at general public meetings, which
were held at frequent intervals after March 24. On one occasion a
paper announcing a public meeting of the organization was placed
on the production belt used in the horn division. On April 20, 1937,
a meeting was held in conjunction with that of the company credit
union, an organization supported by the respondent. After the meet-
ing of the credit union adjourned, a meeting of the Society which
was open to the members of the credit union was held. At this
meeting the Society's bylaws were read and an attorney explained
and was questioned about the Act and its effect on the Society. No
satisfactory explanation for the joint meeting appears in the record.5
The Society's bylaws, as passed on April 12, provided for a plan
for cooperative buying and a committee to deal with the respondent
on matters concerning employer-employee relations. They also pro-
vided that membership should be limited to the respondent's em-
" Wyant, treasurer of the Society , first testified that the regular meeting night of the
Society conflicted with the date of the credit union meeting, but subsequently admitted that
the meetings of both organizations were special meetings
SPARKS-WITHINGTON COMPANY 7
ployees of at least 6 months' service and that membership should
automatically terminate upon the termination of the employment
relation. Foremen and other supervisory officials were eligible for
membership and joined.' Thus, Superintendent Allread, Employ-
ment Manager Darling, Foreman Dean Chambers,? Arthur Porter,
and Charles Dean, together with Assistant Foreman Kirby Baker,
Edward Masters, an employee in charge of maintenance in the re-
frigerator division, and Fred Vinton, all joined the Society. Super-
visory employees attended meetings and their names were read out
at the meetings along with other employees on the membership rolls.
In addition, various of the supervisory employees aided in the
membership campaign of the Society. Thus when Edgar Lawton
asked Arthu Poole, the, respondent's paymaster, for an advance on
his wages, Poole, noticing his United button, admittedly inquired
what the United could do for him that the Society could not do.
According to Lawton's testimony Poole further pointed out the
difference in dues between the two and inquired why he (Lawton)
did not use the money he put into the United instead of asking for
advances. Lawton further ascribed to Poole the statement that while
the Society was not a company union, the respondent "backs it up."
In view of Poole's admission, we find that he made the other state-
ments attributed to him by Lawton. Masters, who served also on
the negotiating, nominating, and general committees of the Society,
requested Nelson Harland to attend a Society meeting. Fred Vinton
and Foremen Dean and Porter kept membership application cards
on their desks. Fred Vinton and Baker solicited employees on be-
half of the Society as a cooperative purchasing plan without men-
tioning its collective bargaining aspect. On one occasion Baker
solicited all the employees in one of the respondent's departments and
succeeded in'enlisting alinost'all of them as members. Many of the
employees thus solicited withdrew when Baker subsequently revealed
that the Society was a labor organization. As a result of this method
of solicitation as carried on by Baker, Vinton, and other members of
the Society, ninny employees joined in ignorance of the fact that the
Society was a labor organization.8 Other supervisory employees also
BAlthough tlieie is some testimony that from the outset foremen could not participate
in the collective bargaining functions of the Society, the original bylaws contain no-such
provision ' The. only iestuction placed on the activity of such employees is a provision
that they cannot serve on the relations committee , a committee composed of all members
except supervisory employees The action of such committee, however , was subject to the
approval of the entice membership , including supervisory employees
7 According to McQuillin , Chambers was one of the early membei s of the Society
Sparks admitted he had been a foreman , but contended he had been demoted in the late
winter or early spring of 1937 There is nothing in the record to indicate that his
demotion antedated his membership in the Society.
, Vinton denied that he engaged in this -practice. We accept, howeer, the testimony
of Avery Shull , an employee who was so solicited by Vinton and resigned when he learned
that the Society was a labor omganization Shull is not a member of the United
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expounded upon the advantages of the Society as a cooperative. For
example, Foreman Stoveall told Nelson Harland that he believed
cooperative buying was a good thing. Since the Society was the
only cooperative in the plant, it is plain that Stoveall *as urging
membership in the Society. Likewise Allread told at least one em-
ployee that if he could purchase gasoline cheaper as a member, it
would be worth while to join the Society.
On June 2, 1937, the Society, in an effort to comply with the Act,
amended its bylaws to exclude from membership executives, superin-
tendents, foremen, and subforemen.9 By this date, however, the
Society had secured over 90 per cent of the members that it 'had en-
rolled at the time of the hearing.19
We have already observed that the respondent had gratuitously
offered a general wage increase to the founders of the Society at the
meeting of February 24. The parties did not meet again until April
21, 5 days after the Society was incorporated. After that meeting,
the respondent posted the following announcement :
Prior to March 1st a group of our employees came to us
advising that they would like to discuss some Sparks-Withington
employees' problems with the management. As part of the
results of those discussions there was put into effect hours and
wage changes, as of March-1st 1937.
Since that time this group of employees have advised the
management they have formed an organization and have asked
for a couple of informal meetings, followed by a Formal Collec-
tive Bargaining Conference on Wednesday, April 21 and-as the
result of these discussions with the United Co-Operative Society
of Jackson, Incorporated, it has been mutually agreed as follows :
The concessions granted to the Society, as a result of the April 21st
meeting included: a 5-minute afternoon rest period; a provision that
employees called back to work when work was not available should
receive 2 hours pay; a 40-hour working week and an 8-hour working
day effective July 1, 1937, with overtime paid at the rate of time and
a half based on the day's earnings plus one half the guaranteed rate;
and a provision guaranteeing existing wage rates against reduction
until January 1, 1938. The bulletin further announced that other
matters had been left in abeyance and would be taken up during the
following week. Although the bulletin states that there were other
meetings preceding that of April 21st, the evidence established that
no such meetings were held.
9 Thereafter the supervisory employees were permitted to enjoy the cooperative buying
privileges of the Society, although they could no longer become members.
10 According to the Society's minute book, it had issued 239 membership cards between
its inception and June 2, and 283 before October 6 The minutes do not disclose the
issuance of any additional membership cards prior to the hearing.
SPARKS-WITHINGTON COMPANY 9
The Society again met with the management on April 28, and on
that day the respondent posted another bulletin announcing as a
result of this meeting the clarification of the seniority rule, the
abolition of the factory council "because of the `Wagner Labor Act,"'
and an increase in the base pay rate of the women "productive
workers." It further provided that the exception of the maintenance,
engineering, and development departments from the operation of
the 40-hour week and overtime provisions of the statement of April
21 was repealed and that the matter be left open for further negotia-
tion between the respondent and the Society."
Thereafter on July 7, 1937, and again in June 1938 the respondent
entered into substantially identical contracts with the United and the
Society. The contracts recognized the respective labor organizations
as the representatives of their members and contain provisions as
to representation, seniority, wages and hours, and other miscellaneous
matters. Foremen, assistant foremen, supervisors, and confidential
employees were expressly excluded from the operation of these
contracts.
C. Conclusions with respect to the Society
As we have found, the organizers of the Society believed that the
approval of the respondent was a desirable if not a necessary condi-
tion precedent to the formation of that labor organization. Follow-
ing the wishes of the respondent that the labor organization be re-
sponsible the founders promptly incorporated the Society. Both in
its membership campaign and in bargaining, the Society leaned
heavily upon the support of the respondent and the assistance of the
supervisory employees. At the meeting of February 24, without
any request from the Society's organizers , Sparks gratuitously
brought up the question of the wage increase which was put into
effect on March 1st. In its bulletin of April 21st the respondent
falsely attributed the increase to the effort of the Society's founders.
At the time of the conference of February 24, the incipient labor
organization represented only 4 of the respondent's 1500 employees.
Although when confronted with the bulletin of April 21st Sparks
testified that, having determined to change the pay rates, he dis-
cussed the matter with the Society and some changes were made in
favor of the employees and some in favor of the respondent, he had
previously testified as follows : "We mentioned some things we were
planning on doing early in March." The latter explanation, being
in accord with Blanchard's, we accept it and reject the former. Thus
in no fair sense can the wage and hour changes of March 1st be
n On April 21 and 28, the Society had issued 1 41 and 187 membership cards
respectively.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attributed to the efforts of the Society. The respondent's act of attrib-
uting them to the Society at a time,when it was waging a^membership
campaign in competition with the United constituted valuable support
to the Society. At the meetings of April 21 and 28 further, important
concessions were made. In its bulletins the respondent made certain
that such concessions were attributed to the Society. In view of the
respondent's effort to attribute the wage increase of March 1 to the
efforts of the Society, and the number of concessions granted at the
conferences of April 21 and 28, the first two conferences the Society
had with the respondent, we are satisfied that the concessions granted
by the respondent constituted support to the organization of the
Society.12 Immediately after the Society was incorporated the
admittedly illegal factory council was disestablished.
We have observed the. activities of. the supervisory employees in
joining, soliciting members for, and otherwise aiding the Society.
In June, only after the Society had obtained its full stature, were
they excluded from membership. It is clear therefore, that the sup-
port of the supervisory employees was not withdrawn until after the
Society was firmly established and accordingly came too late to free
the Society of the onus of employer support. The respondent claims
that only its employment managers have authority to hire, and no
one except the three plant managers have power to discharge. The
power to hire and discharge, however, is not the sole criterion in de-
termining whether an employee enjoys such a status that his acts can
be imputed to the employer.13 The respondent recognized the super-
visory character of the" duties,ofsome of thbse,not -having the power .
to hire and discharge when it denied foremen, assistant foremen,
supervisory, and confidential employees the privilege of employee
representation under its factory rules and excepted them from the
operation of its contracts with the United and the Society. The
Society likewise recognized this fact and amended its bylaws to pro-
vide that executives, superintendents, foremen, and subforemen be
excluded from membership.
Allread, Darling, and Schnell admittedly were production super-
intendent, employment manager, and master mechanic, respectively,
and Dean, Porter, and Stoveall were foremen at `the time of the
events related above. Masters was in charge of maintenance in the
refrigerator plant. It is clear from the testimony of Hanson and
Schnell that foremen and their superiors have the power to recom-
12 National Labor Relations Board v. American Potash & Chemical Corp, 98 F. (2d)
488, 494 (C. C. A. 9), cert. den. 306 U. S. 643, enforcing Matter o f American Potash &
Chemical Corporgtion and Borax & Potash Workers Union No. 80181 , 3 N. L It. B 140.
International Association of Machinists , et at. v. National Labor Relations Board,
311 U S. 72, rehearing denied in 311 U. S. 729 , and cases therein cited, enforcing Matter
of The Serrick Company and International Union, United Automobile Workers of America,
Local No. 4.59, 8 N. L. R. B. 621.
SPARKS-WITHINGTON COMPANY 11
mend hiring and discharging. The respondent contends, however,
that Baker, Vinton, and Poole - were not, supervisory employees.
Kirby Baker was a set-up man and assistant foreman who assigned
work in the absence of the foreman. Sparks asserted that Baker was
only a set-up man. After the Society amended its bylaws to extend
only cooperative buying privileges to executives, superintendents,
foremen, and subforemen, Baker was placed in that category by the
Society. While there was testimony of fellow employees that Fred
Vinton was a foreman in 1937, Vinton, who was one of the original
incorporators of the Society, testified that he was contact man between
the superintendent and the foremen. In this capacity, it was his
duty to locate trouble when operations went wrong, advise the fore-
men of his findings, and inform the superintendent if conditions were
' He 1testified that, in, practice, -the' foremen followed his
instructions. Poole is paymaster of the horn division, and, as such,
directly supervises four or five employees. We find that Allread,
Darling, Schnell, Dean, Porter, Stoveall, Baker, Vinton, and Poole
are supervisory employees for whose acts the respondent ' is re-
sponsible.'4
The respondent relies on the fact that Sparks warned the re-
spondent's supervisory employees not to concern themselves with the
employees' union activities. In Swift and Company v. National
Labor Relations Board,15 the Circuit Court of Appeals said of a simi-
lar defense:
While the'evidence showed. that. Middaugh,, the, plant manager,
and Young, the plant superintendent, repeatedly warned against
violations of the National Labor Relations Act and solicitation
of union membership on petitioner's premises during working
hours, they took no effective means to stop repeated violations of
the Act. Furthermore, with respect to the acts of the supervisory
foremen, the doctrine of respondeat superior applies and peti-
tioner is responsible for the actions of its supervisory foremen,
even though it had no actual participation therein.
Applying the rule to the present case, it is apparent that the mere
fact that Sparks had instructed the supervisory employees not to
interfere with the organization of the employees, does not free the
respondent of any liability for their actions.
In its solicitation of employees, we have observed that the organizers
of the Society frequently refrained from mentioning the fact that
14 International Association of Machinists, et at v National Labor Relations Board,
311 U S. 72, rehearing denied in 311 U S 729, and cases therein cited, enforcing Matter
of The derrick Corporation and International Union, United Automobile Worlers of Ainer-
ica, Local No. 459, 8 N L. R. B. 621.
15 Swift it Company v. National Labor Relations Board, 106 F, (2d) 87 (C C A 10,
1939), modifying Matter of Swift it Company, a corporation and Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No 641, et at, 7 N L R B 269
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Society was a labor organization. Consequently many employees
joined in the belief that they were only becoming members of a
cooperative.16 On several occasions, supervisory employees followed
this policy and mentioned only the cooperative buying aspect .of the
organization. The respondent maintains that the activities of fore-
men in urging membership in the Society ' for cooperative buying pur-
poses was not in violation of the Act. While this position would have
some validity if there were two separate organizations, one engaging
in collective bargaining and the other in cooperative buying, that is
not the situation here involved. The Society is engaged in both
collective bargaining and cooperative buying. As such, it is a labor
organization, and any request or suggestion made by the respondent
or its supervisory officials that employees join for any purpose what-
soever, is a violation of the Act.17 In Matter of McKaig Hatch,
Inc.18 we said :
We observe that while ordinarily we are not concerned with
the various arguments or appeals made by labor organizations
in securing members, nevertheless where, as here, it is charged
that a labor organization has been fostered by an employer,
through acts of agents, it is an important circumstance in deter-
mining that issue that membership was secured upon a statement,
in effect, that the purpose of the organization was not to represent
employees in collective bargaining.
The fact that supervisory employees did not mention the Society's
collective bargaining aspect, accordingly, aggravates and does not
excuse the offense.
In connection with its other acts of support of the Society, the
respondent's acts of hostility to the United described in Section
III A, supra, are noteworthy. By disparaging the United and dis-
couraging membership therein, the respondent thereby directed
the organization of its employees into channels which it preferred.
Support is not limited to acts of favor to the labor organization in
question but may equally well take the form of acts which discourage
membership in rivals.19
16 Significant in this connection is the statement of pui poses found in the Society's
articles and bylaws which at no place uses the term "collective bargaining " Likewise, the
name, the United Cooperative Society of Jackson, Inc , does not reveal the fact that the
Society is a labor organization.
17 Matter of J. Freezer and Son, Inc . and Amalgamated Clothing Workers of America
et al, 3 N. L R . B 120, enforced sub non National Labor Relations Board v J Freezer
& Son, Inc., 95 F (2d) 840 (C C A. 4, 1938)
18Matter of McKaig Hatch, Inc and Amalgamated Association of Iron, Steel and Tin
Workers of North America, Local No. 1139, 10 N. L R B 33, 45
11 Titan Metal Manufacturing Company v National Labor Relations Board , 106 F (2d)
254 (C C. A. 3, 1939), cert den. 308 U S 615, enforcing Matter of Titan Metal Manu-
facturing Company and Federal Labor Union No 19981, 5 N L. R B 577; Matter of Gulf
Public Service Company and International Brotherhood of Electrical Workers, Local 790,
SPARKS-WITH1NGTON COMPANY 13
We find that the respondent dominated and interfered with the
formation and administration of the Society, and contributed support
to it; and that the respondent has thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
D. The discharge of Leslie Vinton
Leslie Vinton was -originally hired by the respondent as an ap-
prentice tool and die maker in 1928. After his apprenticeship was
completed, he was laid off and worked successively for two other
employers for periods of 2 and 5 months. He returned to the re-
spondent's employ in 1934, only to be laid off again in the winter of
1935. He then worked successively for four other employers before
returning to the respondent's employ in September 1936. He was
rehired on this occasion subject to the express condition that he
work on the night shift and refrain from asking for a wage increase
until he convinced Schnell, the master mechanic, by the quality of
his work that he was entitled to a raise. On May 18, 1937, Vinton
was discharged. He was employed by another employer from July
5, 1937, to February 5, 1938. He was then laid off, but reemployed
by the same employer on July 5, 1938. Vinton testified at the hearing
that he had obtained more work since he left the respondent's em-
ploy than he would have had, had he remained in the respondent's
employ.
In 1934 Vinton had joined an outside labor organization affiliated
with the American Federation of Labor, and several arguments with
Schnell had ensued. On one occasion the latter inquired if Vin-
ton thought that he was doing justice to the respondent in joining the
union and on another occasion he criticized Vinton for seeking a
wage increase through the union. In March 1937 Vinton joined the
United. He was not an officer of the United nor does the record
disclose the extent of his activity on its behalf. He was the only
employee in the respondent's toolroom who wore a union button
although one other employee was a union member. About 3 weeks
before he was discharged he accepted a C. I. O. handbill that
was being distributed in front of the shop. When he entered the
shop, Schnell inquired what it was and sought to take it from him.
Vinton refused to surrender it and Schnell sought to jerk it from
his hand. Vinton resisted further but finally surrendered the hand-
bill on Schnell's promise to return it. A few days later Vinton asked
to be assigned to the day shift and pointed out that younger men
were on that shift. Schnell refused to transfer him.
18 N L. R B 562, Matter of Gutmann & Company and National Leather Workers
Association , 18 N. L. R B. 64; Matter of Texas Mining it Smelting Company and
International Union of Mine , Mill, it Smelter Workers, Local No 1,12, 13 N L R B 1163.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 weeks before he was discharged, Porter approached Vin-
ton and said : "I understand you are a second John Lewis . . . I am
telling you now, you want to watch your step, because if they get
anything on you, they are going, to let you go." Porter did not deny
this, but sought to explain it as a move to induce Vinton to work
harder.
The respondent contends that Vinton was discharged because he
was inefficient. Schnell and Foremen Dean and Porter testified that
Vinton's work was unsatisfactory; that he talked and loafed ex-
cessively and scrapped considerable work. They also testified that
Vinton had received numerous warnings concerning the quality of
his work. Fred Vinton, his uncle and a supervisory employee of the
respondent who had originally recommended him to Schnell, testified
that during the course of Leslie Vinton's employment with the re-
spondent, Schnell frequently complained to him of Leslie Vinton's
shortcomings, that he intereceded in his nephew's behalf on many
occasions, but that he finally lost interest in his welfare as an em-
ployee. Vinton admitted receiving a warning about loafing and
talking a few weeks before his discharge. He also admitted scrap-
ping several jobs and receiving complaints about the speed of his
work.
On May 18, 1937, when Vinton arrived for work he was summoned
to Schnell's office and informed that he was discharged for spoiling
a punch he had worked on the night before. Vinton explained that
he had left the job unfinished and claimed that the day man had
spoiled the punch. The day man was summoned and he pointed out
the part of the punch he had worked on. Schnell testified that after
listening to the stories of all concerned he was convinced that Vinton
was responsible for the spoilage. He stated that in view of the time
the punch was turned over to him, the day man could not, have done
much work on it.
Although the case is not free from doubt, we find, in view of Vin-
ton's record of inefficiency and the warnings that he had received
from the respondent in connection with his work, that he was not
discharged because of his membership in the United.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III A, B, and C above, occurring in connection with the operations
of the respondent set forth 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.
SPARKS-WITEDNGTON COMPANY
V. THE REMEDY
15
Having found that the respondent has dominated and interfered
with the formation and administration of the Society,'and has con-
tributed support to it, we shall order the respondent to withdraw all
recognition from the Society and to disestablish it as the collective
bargaining agency for any of its employees. Since the agreement
between the respondent and the Society embodies the recognition of
the Society as such agent, we shall order the respondent specifically
to cease and desist from giving effect to this or any other contract
it may have entered into with the Society in respect to rates of pay,
wages, hours of employment, or other conditions of employment.
We shall further order the respondent to cease and desist from its
unfair labor practices and to take certain other action which we
deem necessary to effectuate the purposes and policies of the Act.
Upon the basis of the .above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLusIONs OF LAW
1. International Union, United Automobile Workers of America,
Local No. 62, and the United Cooperative Society of Jackson, Inc.,
are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. By dominating and interfering with the formation and adminis-
tration of The United Cooperative Society of Jackson, Inc., and by
contributing support thereto, the respondent has engaged in and is
engaging in unfair labor-practices, within the meaning of Section 8
(2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise, of the rights. guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, Sparks-Withington Company of Jackson, Michigan, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of The
United Cooperative Society of Jackson, Inc., or the formation and
administration of any other labor organization of its employees, and
from contributing financial or other support to said Society or to
any other labor organization of its employees;
(b) Giving effect to its contract of June 2, 1938, or any other con-
tract it may have entered into, with The United Cooperative Society
of Jackson, Inc., in respect to rates of pay, wages, hours of employ-
ment, or other conditions of work;
(c) In any other manner interfering with, restraining, -or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid or protection.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from - The United Cooperative
Society of Jackson, Inc., as a representative of any of its employees
for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, rates of pay, wages, hours of employment, or
other conditions of employment, and completely disestablish The
United Cooperative Society of Jackson, Inc., as such representative;
(b) Post notices in conspicuous places in its plants in or adjacent
to the City of Jackson, Mich., and maintain such notices for a period
of at least sixty (60) consecutive days stating that the respondent
will cease and desist in the manner set forth in 1 (a), (b), and (c)
and that it will take the affirmative action set forth in 2 (a) of this
Order ;
(c) Notify the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges
that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act; be, and it hereby is, dismissed.