Sterling Faucet Co.

National Labor Relations Board - Board Decisions

May 5, 1954

108 N.L.R.B. 776 (N.L.R.B. 1954)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STERLING FAUCET COMPANY and UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMB-
ING & PIPE FITTING INDUSTRY OF THE U.S. AND
CANADA, LOCAL NO. 152, AFL
STERLING FAUCET COMPANY and UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMB-
ING & PIPE FITTING INDUSTRY OF THE U. S. AND
CANADA, LOCAL NO. 152, AFL and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA, Party to the Contract
SA-MOR QUALITY BRASS, INC. and UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING
& PIPE FITTING INDUSTRY OF THE U.S. AND CANADA,
LOCAL NO. 152, AFL and DISTRICT 50, UNITED MINE
WORKERS OF AMERICA, Party to the Contract
STERLING FAUCET COMPANY AND SA-MOR QUALITY
BRASS, INC. and UNITED STEELWORKERS OF AMERICA,
CIO and DISTRICT 50, UNITED MINE WORKERS OF AMERI-
CA, Party to the Contract
STERLING FAUCET COMPANY and JAMES CARR
SA-MOR QUALITY BRASS, INC. and UNITED ASSOCIATION
OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING
& PIPE FITTING INDUSTRY OF THE U. S. AND CANADA,
LOCAL NO. 152, AFL, Petitioner
STERLING FAUCET COMPANY and UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING
& PIPE FITTING INDUSTRY OF THE U. S. AND CANADA,
LOCAL NO. 152, AFL, Petitioner. Cases Nos. 6-CA-428,
6-CA-444, 6-CA-445, 6-CA-455, 6-CA-459, 6-RC-694, and
6-RC-695. May 5, 1954
ORDER
On March 5, 1954 , the Board issued its Proposed Findings
of Fact , Proposed Conclusions of Law , and Proposed Order 1
in the above - entitled proceeding , finding that the Respondents
had not engaged in certain unfair labor practices . No state-
ment of exceptions has been filed with the Board and the time
for such filing has expired.
Pursuant to Section 10 (c) of the National Labor Relations
Act, as amended , the Board hereby adopts as its final Order
herein the said Proposed Findings of Fact , Proposed Con-
! Board Member Murdock dissenting in part.
108 NLRB No. 238.
STERLING FAUCET COMPANY 777
clusions of Law, and Proposed Order and hereby orders that
the complaint against Sterling Faucet Company and Sa-Mor
Quality Brass, Inc., Morgantown, West Virginia, be, and it
hereby is, dismissed; and it is further ordered that the elec-
tion held on April 27, 1951, in Cases Nos. 6-RC-694 and
6-RC-695 be, and it hereby is, set aside, that the Direction
of Election issued on April 5, 1951, be, and it hereby is,
vacated, and that the petitions in such cases be, and they here-
by are, dismissed.
By direction of the Board:
Frank M. Kleiler,
Executive Secretary.
PROPOSED FINDINGS OF FACT, PROPOSED CONCLUSIONS
OF LAW, AND PROPOSED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by United As-
sociation of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
Local Union No. 152, AFL, herein called AFL, by United
Steelworkers of America, CIO, herein called CIO, and by
James Carr, an individual, herein called Carr, the General
Counsel of the National Labor Relations Board, herein called
respectively the General Counsel' and the Board, through the
Regional Director for the Sixth Region (Pittsburgh, Pennsyl-
vania), issued his consolidated complaint dated December 6,
1951, against Sterling Faucet Company, herein called Sterling,
and Sa-Mor Quality Brass, Inc., herein called Sa-Mor, and
collectively herein called Respondents, alleging that Respond-
ents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1),
(2), and (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act, as amended (61 Stat. 136), herein called the Act.
Copies of the charges and complaint, together with the notice
of hearing, were duly served upon the above-named parties
and upon District 50, United Mine Workers of America, herein
called District 50.
The complaint alleged in substance that: (1) Respondents
had discriminatorily suspended Clark Davis on or about
October 6, 1950, and on various dates beginning about October
18, 1950, had discriminatorily discharged Clark Davis, Regina
Stemple, James E. Carr, and Everett Martin; (2) since about
September 16, 1950, Respondents had dominated, interfered
with the administration of, and contributed financial and other
support and assistance to District 50; (3) since about September
1 This term specifically includes counsel for the General Counsel appearing at the hearing.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16, 1950, Respondents had maintained and enforced unlawful
union-security agreements with District 50; and (4) by means
of threats, interrogation, and other statements and conduct,
Respondents had interfered with, restrained, and coerced their
employees in the exercise of rights guaranteed by the Act.
On December 15, 1951, Respondents filed their answer to the
complaint, admitting the jurisdictional allegations thereof but
denying that they had committed the alleged unfair labor prac-
tices, and further interposing certain affirmative defenses.
On December 27, 1951, District 50 filed an answer to the com-
plaint, denying that it had been interfered with, or dominated or
supported by Respondents, denying that its contracts with
Respondents contained unlawfulunion- security agreements, and
further interposing certain affirmative defenses. A motion by
District 50 to dismiss the complaint and to strike certain
allegations therefrom was denied. Motions by Respondents and
District 50 for bills of particulars were granted in part and
denied in part, and said particulars were furnished by the
General Counsel.
Pursuant to orders of the Board dated November 8 and 15,
1951, the hearing in these cases was consolidated with a
hearing on certain objections filed by AFL to an election
directed by the Board which was held on April 27, 1951. There-
after, pursuant to notice, a hearing was held in these consoli-
dated cases in Morgantown, West Virginia, on various dates
from January 9, 1952, to May 26, 1952, both inclusive, before
Peter F. Ward, a Trial Examiner duly designated by the Chief
Trial Examiner. All parties except Carr and AFL were re-
presented by counsel; AFL was representedby a representative.
All parties were afforded full opportunity to be heard, to
examine and` cross-examine witnesses, to introduce relevant
evidence, to argue orally, and to file briefs. Briefs have been
received from the General Counsel, Respondents, and District
50.
During the course of the hearing, the Trial Examiner ruled
on objections to the admission of evidence and on various
other motions, and reserved ruling on other motions. The
Trial Examiner also granted a petition bythe-General Counsel,
and in part a petition by AFL, to revoke certain subpenas.
Respondents' request for special permission to file an interim
appeal from the Trial Examiner's rulings with respect to
said subpenas was denied by the Board, but without prejudice
to Respondents' right to present the issue following the issuance
of an Intermediate Report. At the close of the hearing the Trial
Examiner denied motions to dismiss the complaint, and re-
served ruling on various other motions.
Subsequent to the conclusion of the hearing, Trial Examiner
Ward became unavailable to the Board for the purpose of
preparing an Intermediate Report. Thereafter, the Board,
acting pursuant to Section 102.63 of National Labor Relations
Board Rules and Regulations, Series 6, as amended, issued
STERLING FAUCET COMPANY 779
an order that these cases be transferred and continued before
the Board; that no Trial Examiner's Intermediate Report
be issued therein; and that Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order be issued.
Pursuant to said Rules and Regulations any party may, within
20 days from the date of these Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, file ex-
ceptions, with a supporting brief, thereto. Should any party
desire to argue orally before the Board, request therefor
must be made in writing to the Boa"d simultaneously with the
statement of any exceptions filed.
The Board has reviewed the rulings of the Trial Examiner
at the hearing and finds that no prejudicial error was com-
mitted.' The rulings are hereby affirmed. The motions with
respect to which the Trial Examiner reserved ruling are dis-
posed of in accordance with our findings hereinafter.
Upon the entire record in these cases, the Board makes the
following:
PROPOSED FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Sterling is a West Virginia corporation engaged in the
production of cast brass products used in the plumbing in-
dustry; its only plant is located at Morgantown, West Virginia.
During 1951 Sterling purchased for use at its plant materials
valued at more than $150,000; materials valued at approximately
75 percent of this amount were shipped to its plant from outside
the State of West Virginia. During the same period Sterling
sold and shipped products valued at more than $200,000;
products representing approximately 75 percent of this amount
were sold or shipped from its plant to points outside the State
of West Virginia.
Sa-Mor is a West Virginia corporation engaged in the pro-
duction of tubular brass products used in the plumbing indus-
try; its only plant is located at Morgantown, West Virginia.
During 1951, Sa-Mor purchased for use at its plant materials
valued at more than $75,000; materials representing approxi-
mately 75 percent of this amount were shipped to its plant
from outside the State of West Virginia. During this same
period Sa-Mor sold and shipped products valued at more than
$100,000; products representing approximately 75 percent of
this amount were sold or shipped from its plant to points
outside the State of West Virginia.
Respondents admit, and we find, that they are engaged in
commerce within the meaning of the Act.
2 In view of our findings and conclusions, as hereinafter set forth, certain rulings of the
Trial Examiner to which objections have been made, including rulings pertaining to the
applicability 'of the 6-month proviso to Section 10 (b) of the Act, even if erroneous, were not
prejudicial; accordingly, we do not pass on the crrectness of such rulings.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
United Association of Journeymen and Apprentices of the
Plumbing & Pipe Fitting Industry of the United States and
Canada, Local Union No. 152, AFL; United Steelworkers of
America, CIO; and District 50, United Mine Workers of
America, are each labor organizations admitting to mem-
bership employees of Respondents.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES a
A. The union-security agreements alleged to violate
Section 8 (a) (1), (2), and (3)
District 50 has represented the employees of Sterling since
it was first recognized following a consent election conducted
by the Board in December 1944. Successive 1-year contracts
were executed on February 6, 1945, and March 1, 1946, and
successive 2-year contracts were executed on March 15,
1947, and March 15, 1949. The most recent contract, dated
September 16, 1950, was executed for a 5-year term following
negotiations pursuant to a reopening clause in the 1949 contract.
District 50 was also recognized as the representative of
the employees of Sa-Mor, following a card check conducted
on June 10, 1950. On June 16, 1950, Sa-Mor and District 50
entered into a 5-year contract, substantially similar to the
1949 contract between Sterling and District 50.
The contract of September 16, 1950, between Sterling and
District 50, provides:
The Company further agrees that as a condition of em-
ployment all its Employees at Sabraton, West Virginia,
shall become members of District 50, United Mine
Workers of America and its Local Union No. 12939. This
Section shall not be effective if it is now prohibited by
law, but in such case shall become effective if and when
such an Agreement shall later become lawful.
The contract of March 15, 1949, between Sterling and District
50, and the contract of June 16, 1950, between Sa-Mor and Dis-
trict 50, contained substantially identical clauses. The General
Counsel contends that the foregoing union- security agreements
are unlawful, and that by maintaining and enforcing such agree-
ments, Respondents have violated Section 8 (a) (1), (2), and
3 Except as otherwise indicated, the factual summary set forth hereinafter is based on
uncontradicted testimony or unimpeached documentary evidence, or both. Of the individuals
mentioned hereinafter, President John W. Ruby, Vice-President W. J. Deublin, Secretary
John R. Hardesty, Personnel Manager Fred R. Glisan, General Superintendent Robert S
Cagey, and Plant Superintendent Freemont Neldon are officials of both Sterling and Sa-Mor;
unless otherwise specifically indicated, the others are supervisors or employees of Sterling
only.
STERLING FAUCET COMPANY 781
(3) of the Act. Respondents and District 50 contend, however
that such agreements are not unlawful, because they have been
effectively deferred unitl such time as District 50 could law-
fully enter into this type of agreement. They also assert that
no union-security agreement has been enforced by Respondents
at any time relevant to this proceeding. Construed most
favorably to the General Counsel's position, the deferral clauses
in the above contracts are, in our opinion, at best ambiguous.
Accordingly, it is appropriate for us to look to the extrinsic
evidence to determine the intent of the parties.4
Unlike our dissenting colleague, we can perceive no material
difference between looking to extrinsic evidence to determine
whether an ambiguous union-security clause violates the Act
because it is too broad, and to determine whether it violates
the Act because it is presently operative. In either case, the
purpose of the Board's inquiry is to determine the meaning,
intent, and effectiveness of the clause in question, and in either
case the burden rests upon the General Counsel to establish
by a preponderance of all the evidence that the clause violates
the Act.
Nor do we believe, as our dissenting colleague apparently
believes, that the sentences of a paragraph mlay or should
be separately viewed for the purpose of determining the appli-
cable rules of evidence. It is the whole clause which is material.
The Act prohibits only a presently effective union-security
clause which exceeds the limits prescribed therein. It does
not prohibit a presently effective clause if it does not exceed
such limits as to coverage or authorization; nor does it pro-
hibit a clause which exceeds such limits if it is not presently
effective. In these circumstances it is immaterial, in our
opinion, which aspect of the clause may be ambiguous; when
any ambiguity exists, the extrinsic evidence becomes material.
We shall, accordingly, examine such evidence for the purpose
of determining whether the clauses here in issue violated the
Act in any of the aspects alleged in the complaint.
The contract of March 15, 1947, between Sterling and Dis-
trict 50, contained a union-security clause substantially identi-
cal with the first sentence of the above-quoted agreement. This
1947 agreement was enforced by the parties. The record es-
tablishes that in the negotiations which preceded the execution
of the 1949 contract, both parties agreed that they could not
lawfully execute a presently effective union- security agreement.
The second sentence of the clause hereinabove quoted was
ultimately agreed upon, as reflecting the intention of the parties
to defer the application of the union-security agreement until
it should be lawful. This language was carried over into the
two 1950 contracts, apparently without further negotiation;
however, all provisions of the 1949 Sterling contract were
4 Krambo Food Stores , Incorporated, 106 NLRB 870; Newton Investigation Bureau, 93
NLRB 1574.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed in the negotiations which led to the execution of the
1950 Sa-Mor contract.
The record also establishes that the intent and effect of
the union-security agreement in the 1949 contract, and the rea-
son for its adoption, was discussed with and explained to the
employees at a union meeting at the time that contract was
ratified. There is uncontradicted testimony in the record that
Respondents' employees were aware that the union-security
clauses in the 1949 and subsequent contracts were not presently
effective. And new employees who inquired were told that mem-
bership in District 50 was not a condition of employment.'
Moreover, the record contains no substantial evidence, either
that Respondents attempted to enforce such union-security
agreements at any time relevant to this proceeding, or that
District 50 used the existence of such agreements as a lever
for the purpose of securing memberships.
In the representation proceeding 6 the Board found, solely on
the basis of the language of the contracts, that the effective
operation of the union-security clauses had not been clearly
deferred. On the basis of the additional evidence in this pro-
ceeding' it is clear, and we find, that not only did Respondents
and District 50 intend to defer the application of the union-
security provisions in their contracts until it should be lawful
for the parties to enforce such an agreement, but Respondents'
employees were also aware of such intention. Under these cir-
cumstances, we find that the union-security clauses in the con-
tracts between Respondents and District 50 were not unlawful,6
and that Respondents did not maintain or enforce unlawful union-
security agreements . The findings of the Board in the repre-
sentation proceeding, that such clauses were unlawful, is hereby
reversed.
In the representation proceeding, supra, the Board directed
the election only because it found that the aforementioned union-
security clauses were unlawful, and the contracts in effect
between Respondents and District 50 were therefore not a bar.
As we have now found that such union-security clauses were
effectively deferred and inoperative, we further find that the
election was improvidently directed. We shall therefore, without
considering the merits of the objections filed by AFL, set aside
5 We do not credit Birurakis' testimony, denied by Glisan, that when he was hired in August
1950, Personnel Manager Glisan told him he would have to join District 50 and had him exe-
cute a District 50 checkoff and membership card, and his further testimony that District
50 dues were deducted from his pay, for the reason that Birurakis was employed in a position
specifically excluded from the unit represented by District 50, he was unable to recall
having previously seen anything similar to a District 50 membership application and checkoff
authorization card, when it was exhibited to him at the hearing, and Respondents' records
fail to reflect that any Union dues were deducted from his pay.
6Sa-Mor Quality Brass, Inc., 93 NLRB 1225.
7Cf. Krambo Food Stores, Incorporated, supra.
8 Krambo Food Stores, incorporated, supra; Jandel Furs, 100 NLRB 1309; Port Chester
Electrical Construction Corporation, 97 NLRB 354; Monolith Portland Cement Company,
94 NLRB 1358, 1363.
STERLING FAUCET COMPANY 783
the election held on April 27, 1951, vacate the Direction of
Election, and dismiss the petitions in Cases Nos. 6-RC-694
and 6-RC-695.'
B. Other alleged interference, restraint , and coercion, and
unlawful assistance and support for District 50
On September 16, 1950, as set forth above, Sterling and
District 50 entered into a 5-year contract. On September 19,
the employees of Sterling went on strike, apparently as the
result of dissatisfaction with the terms of the contract, as they
understood them; they returned to work on September 20, but
again walked out on September 21. Beginning September 22
both the Sterling and Sa-Mor plants were picketed, and with a
few exceptions none of Respondents ' employees worked until the
strike ended on September 27. At times there were as many as
100 or more of Respondents' employees on the picket line.
There is no evidence that the strike was called or supported
by any of the labor organizations involved in this proceeding.
During the strike, however, AFL, which had begun covert
organizational activity among Respondents ' employees in May
or June 1950, continued and increased the tempo of such activ-
ity, secured a substantial number of authorization cards and,
coming into the open , requested recognition of Respondents by
a letter dated September 21. Respondents subsequently declined
this request.
At the end of the strike, all Respondents' employees went
back to work. Although Respondents had claimed that the strike
violated no-strike clauses in its contracts with District 50, there
is no evidence that any of Respondents' employees were disci-
plined upon the conclusion of the strike because of their partici-
pation therein. After the strike the AFL adherents continued
their activity on behalf of that organization and, on October 4,
1950, AFL filed representation petitions in Cases Nos. 6-RC-
694 and 695; Respondents were notified of the filing of these
petitions by letters dated October 5. Following the filing of
these petitions CIO, which had begun covert organizational ac-
tivity among Respondents' employees about June 1950, increased
the tempo of its activity and secured authorization cards.
The General Counsel contends that, beginning about the time
AFL filed its representation petitions, and continuing until after
the election of April 27, 1951, Respondents violated Section 8
(a) (1) and (2) 1° of the Act byinterrogating and making coercive
statements to their employees and by engaging in other alleged
conduct, as set forth hereinafter . Respondents assert that: (1)
The General Counsel has failed to establishbya preponderance
of the credible evidence that the alleged conduct in fact occurred;
(2) such conduct as occurred amounted to no more than pro-
9See Krambo Food Stores, incorporated. supra.
to The General Counsel contends that all the alleged interference, restraint, and coercion
was directed toward the end of retaining District 50 as the bargaining representative.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tected expressions of opinion; and (3) in any event any estab-
lished unlawful conduct amounted to no more than isolated inci-
dents, insufficient to warrant the issuance of a remedial order.
1. We have carefully considered the testimony relied upon
by the General Counsel for the purpose of establishing the
alleged interrogation and coercive statements, which testimony
is for the most part denied or explained by the officials and
supervisors allegedly involved. Upon the entire record we are
of the opinion that in most of such alleged instances such testi-
mony, if believed, would establish only that such officials and
supervisors had expressed noncoercive opinions favorable to
District 50, which expressions of opinion are protected by
Section 8 (c) of the Act. Such other alleged interference as
might be found on the basis of such testimony, if believed, is
in our opinion too isolated to warrant the issuance of a reme-
dial order, in the absence of any other unfair labor practices;
accordingly, we find it unnecessary to make specific findings
with respect thereto.
2. During the period between the issuance of the Board's
Decision and Direction of Election, on April 5, 1951, and the
election of April 27, each of the three competing labor organi-
zat,ions (AFL, CIO, and District 50) sought employee support
by means of literature, slogans, buttons, and word of mouth.
The General Counsel contends that Respondents gave unlawful
assistance to District 50 by permitting its adherents to cam-
paign without restriction, while denying such a privilege to the
adherents of AFL and CIO. Respondents admit a preference for
District 50, but deny giving it unlawful assistance.
The record establishes that literature was distributed at the
plant gates by all three organizations and taken into the plant
by the employees; buttons were worn by adherents of CIO and
District 50 and some were altered to indicate support for AFL,
it appearing from the record that AFL did not supply-its sup-
porters with buttons; posters, most of which favored District
50, were put up in some of the departments in the plant; stickers
urging employees to vote "neither" were glued to equipment
and machinery in various parts of the plant, the record estab-
lishing that they were placed there by Ward, a District 50 local
officer; some of these stickers were altered to urge support for
AFL or CIO: slogans urging support for CIO were chalked on
shipping cartons, and on boards and buggies used to transport
supplies and material throughout the plant; adherents of all
three Unions violated the contractual prohibition against
engaging in union activities on company time. 11 As there is no
substantial evidence in the record that during this period
Respondents interfered with any of the foregoing activities or
gave assistance to the activities of any of the competing organi-
zations, we find under all the circumstances that Respondents did
not violate the Act with respect to such preelection activities.
"Some, but not all, of the supervisors attempted to enforce this prohibition during the pre-
election period by warnings to employees; however, such attempts at enforcement did not go
beyond warnings, and there is no evidence of discrimination with respect to such warnings.
STERLING FAUCET COMPANY 785
3. Among the recreational activities existing at Respondents'
plants are various athletic leagues; participation in such leagues
is open to all employees and to supervisors. In the spring of
each year, beginning in 1949, a banquet and dance had been held
at Respondents' plant for the purpose inter alia of awarding
prizes to the winners in league competition; the 1951 banquet
was held on the evening of Saturday, April 14, approximately 2
weeks before the election was to be held. Present at-this ban-
quet, as at previous banquets, were various company officials,
including President Ruby.
The previous banquets had been held on March 26, 1949, and
May 13, 1950. The dates for the banquets were set by the offi-
cers of the bowling league , among whomwere employees not in
the units covered by the District 50 contracts; however, Ruby
was consulted concerning the banquet dates, to insure his attend-
ance for the purpose of awarding the prizes. The cost of the
banquets was paid by Respondents; however, attendance was
voluntary, and no employees were paid for time spent at the
banquets.
Concidentally, a District 50 meeting had been scheduled for
the same night as the 1951 banquet. "Before the banquet several
employees approached Ruby, told him they wanted to leave the
banquet to attend this meeting, and asked him if he would delay
awarding the prizes until they returned. Ruby told them to go
ahead, that it would take 45 minutes to an hour to clean off the
tables after dinner, and if necessary he would further delay
awarding the prizes until after their return; one of them asked
Ruby if he could borrow his car, and Ruby agreed to loan it to
him.
After dinner, Ruby announced that a District 50 meeting was
being held, that those who wished could leave to attend that
meeting, and that he would delay awarding prizes until their
return. There is testimony by some of those present at the
banquet, but denied by Ruby and others present, that in his
announcement Ruby also said the meeting was important, that
he wanted the employees to attend it, as it would probably
benefit both the Company and the employees, and that he did
not want the banquet to interfere with the meeting. Even if this
testimony be accepted, Ruby's statements, in our opinion, con-
stituted no more than an expression of his opinion concerning
the District 50 meeting, devoid of threats or promises, and
hence protected by Section 8 (c) of the Act. We also find, con-
trary to the contention of the General Counsel, that the granting
of permission to employees to leave a voluntary gathering of
this kind.,to attend a District 50 meeting, and a-promise to delay
the proceedings until their return, did not under all the circum-
stances constitute unlawful assistance and support for District
50, particularly in the absence of evidence that AFL and CIO
would not have been accorded similar treatment.
4. Two nights before the election, on April 25, a District 50
meeting was scheduled to begin at 7:30 p. m., and to be held
339676 0 - 55 - 51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during hours when the second shift at Respondents' plants nor-
mally worked; the announcement of the meeting, a copy of which
was posted on the bulletin board provided in the contract for
notices of District 50 meetings, urged all of Respondents'
employees to attend, and listed as speakers various international
and district representatives. At about 6:30 that evening, most
of the employees in the Sterling foundry and a majority of the
employees in the Sterling core room punched their timecards
and walked off the job. Most of them attended the District 50
meeting; a few, however, attended a CIO meeting which had
been scheduled to coincide with the District 50 meeting. The
Sterling plant was shut down for the remainder of the second
shift, but the third shift worked on schedule. There is no evi-
dence that any of the employees who walked out on this evening
were paid for any time other than time actually worked.
H. McDowell, an employee in the foundry and a District 50
shop steward, first testified that before the beginning of the
second shift he discussed the meeting with some of the em-
ployees and learned that they wanted to attend; later in the
,?told Foreman Sinclair a majorityafternoon he and steward Coy,
of the foundry employees wanted to attend the meeting and
asked Sinclair if he had any objections; according to McDowell,
Sinclair told them any one who wanted to could go. McDowell
subsequently changed his testimony concerning his conversation
with Sinclair, and testified that he and Cox told Sinclair the
employees were going to the District 50 meeting, with or with-
out his permission. Cox supported McDowell's second version,
and testified that the employees walked out and shut down the
foundry over Sinclair's objections.
In view of the contradictory testimony given by McDowell,
we cannot credit his initial version that Foreman Sinclair gave
the employees permission to leave work for the purpose of
attending the District 50 meeting. We find, therefore, that the
record fails to support the General Counsel's contention that
Respondents assisted District 50 by granting employees per-
mission to leave work for the purpose of attending District 50
meetings.
5. A few days before the election of April Z7, 1951, Respond-
ents distributed to all employees at the plants, and also mailed
to the employees' homes, copies of letters 12 setting forth
Respondents' position with respect to the election. In these
letters, Respondents recited the benefits which had accrued to
them and the employees as a result of their past bargaining
relationships with District 50; expressed the hope that the
employees would retain District 50; predicted possible strikes
if the employees rejected District 50 and selected either AFL
or CIO; advised the employees that if they wished to retain
District 50, it would be necessary for them to vote for
12 The lerer to the Sterling employees differed only insubstantially from the letter to the
Sa-Mor employees.
STERLING FAUCET COMPANY 787
"Neither" in the election ; 13 and promised that if a majority
selected "Neither," they would continue to bargain with District
50. The letters also reminded the employees that they would
vote by secret ballot and that they had the right to vote for the
union of their choice, whether AFL, CIO, or District 50.
We have carefully considered the language of these letters,
and the General Counsel's contentions with respect thereto.
We find, in agreement with Respondents , that such letters con-
tain nothing which is not protected by Section 8 (c) of the Act.
C. The alleged discriminations in violation of
Section 8 (a) (3)
1. Clark Davis
Davis was employed as a turret lathe operator on January 17,
1950, and remained in that position until his discharge ; during
this period he was also a member of District 50. Like most of
Respondents ' employees , he participated inthe September 1950,
strike, and served on the picket line . Davis signed an AFL
authorization card about September 18, and during and after the
strike he secured AFL authorization cards from numerous other
employees . Respondents were aware of Davis' interest in AFL
during the strike.
Davis returned to work at the end of the strike on September
28, with the rest of Respondents ' employees ; on October 6 he
received a 2-day suspension and, on October 18, he was dis-
charged . The General Counsel contends , and Respondents deny,
that the suspension and discharge were discriminatory.
a. The suspension
On October 6, 1950, Davis was called into the office of Vice
President Deublin and while there was given a 2-day suspension
allegedly for engaging in union activities , i.e., soliciting for
AFL, on company time in violation of Respondents ' contracts
with District 50, which prohibited union activity on company
time and provided for a reprimand or a 2-day suspension for
the first offense . Although Davis denied at the hearing in this
proceeding that he had solicited AFL memberships on company
time, there is no evidence in the record that he denied the
charge at the time it was made. The record establishes, more-
over, that prior to Davis ' suspension , Respondents had received
reports that Davis had engaged in the conduct with which he was
charged. In view of Davis ' failure to deny the charge at the time
it was made, we are satisfied on this record that Respondents'
action in suspending Davis was motivated by a belief that he
had engaged in union activity on company time.
13 As District 50 had not complied with the filing requirements of the Act , it was not accorded
a place on the ballot in the election.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel asserts that Respondents permitted
District 50 adherents to engage in union activity on company
time without penalty; consequently, he contends, even if Davis
had in fact engaged in such activity on behalf of AFL, the sus-
pension for that reason was discriminatory . We cannot agree
with this contention under the circumstances of this case. As
we have found, supra, during the period immediately preceding
the election of April 27, 1951, Respondents failed with substan-
tial uniformity to enforce the prohibition against union activity
on company time, not only with respect to the adherents of
District 50, but also with respect to the adherents of AFL and
CIO. We are, moreover, satisfied on this record that at -all
other times Respondents uniformly enforced that prohibition.
On the facts in this case, we do not believe that the nondiscrim-
inatory waiver of the prohibition by Respondents under the cir-
cumstances existing prior to the election required them to
waive that prohibition at a different time and under different
circumstances. We find, accordingly, that the suspension of
Davis was not discriminatory.
b. The discharge
Beginning in late July or early August 1950, after they had
received information which indicated that certain operators in
the turret lathe department, who were paid on a piece-work
basis, were cheating on their production count, and continuing
into October 1950, Respondents conducted an investigation and
audit of that department for the purpose of determining the
validity of such information. After the investigation was com-
pleted, 11 of the 60 to 70 turret lathe operators, including Davis,
were called into President Ruby's office, where they were
questioned by Ruby, Personnel Manager Glisan, and in some
cases by Secretary Hardesty, concerning discrepancies which
the investigation indicated existed in their production counts;
some were also questioned concerning other operators . Follow-
ing such interviews 4 operators , including Davis, were dis-
charged for the asserted reason that they had falsified their
piece-work counts so that they were being paid for more work
than they actually performed.
Insofar as appears from the record all the interviews except
that with Davis occurred without incident. The operators were
told that an investigation had been made and how it had been
made. They were also told that the, investigation had revealed
discrepancies in their counts and were given an opportunity to
explain such discrepancies. All except the 4 who were dis-
charged gave explanations which satisfied Respondents, and 3
of those who were discharged, but not Davis, admitted they had
been cheating.
Although the testimony of those present at Davis' interview
differs in minor details, they agree in substance that when Davis
was told the investigation had revealed discrepancies in his
STERLING FAUCET COMPANY 789
count, he denied that he was responsible; General Superintendent
Cagey, who had assertedly seen Davis manipulatingthe counter
on- his machine so that it would register more production than
Davis had performed, was then called in; when Cagey started
to tell what he had assertedly seen, Davis called him a liar.
Ruby then remarked in effect that Davis was acting like a
horse's-, and Davis replied that they had different opinions
as to which one occupied that end of the horse. After this
exchange , Davis asked why he hadn't been discharged on the
spot if Cagey had caught him cheating, and was told that wasn't
the place. 14 When Davis asked where the place was to get fired,
he was told he was there, and was discharged.
We find it unnecessary to determine on this record whether
Davis was in fact guilty of cheating, as charged by Respondents.
The evidence adduced by Respondents establishes the existence
of at least an accounting shortage which warranted an effort to
secure an explanation. Davis, however, not only made no effort
to explain the asserted discrepancy in his count, but did not even
attempt to find out the basis for Respondents' accusation. Under
these circumstances we believe that an employer acting without
discriminatory motivation would have been warranted in con-
cluding, despite the employee's denials, that the evidence in its
possession was sufficient to establish the fact of cheating.
Nor can we find in this record sufficient evidence to support
the General Counsel's contention that the asserted reason for
Davis' discharge , his alleged cheating , was merely a pretext
to cover the real reason, his known interest in and activity on
behalf of AFL. In reaching this conclusion, we have considered
Respondents ' expressed preference for District 50 and opposi-
tion to AFL, and certain inconsistencies and weaknesses in the
evidence adduced to justify Davis' discharge. We have also con-
sidered the absence of any unlawful conduct by Respondents in
support of their expressed position, ss and the uncontroverted
testimony that one of those discharged at about the same time
as Davis for cheating was an active District 50 adherent whom
Respondents subsequently refused to reemploy, although
requested to do so by a District 50 representative. Although we
believe the question is not wholly free from doubt we find, under
all the circumstances, that the General Counsel has failed to
14Respondents attempted to keep the fact of the investigation secret until they were ready
for the interviews with the operators.
>s We do not credit Birurakis' testimony, denied by Glisan, that at about the time of Davis'
suspension, Personnel Manager Glisan questioned him concerning his activity on behalf of
AFL and Davis' activity during the strike, and threatened a plant shutdown in reprisal, in
view of the inconsistencies in Birurakis' testimony concerning his own activity and his
knowledge of Davis' activity, and the fact that we have found (see footnote 5, supra that
Birurakis' testimony on other matters was not entitled to credence in the face of Glisans
denial. We are also unable to accord any substantial weight to Ira Stemple's testimony that
at about the time of Davis' discharge. President Ruby in effect threatened to close the plant
in reprisal for the employees' AFL activity, in the face of explanations by Ruby, Glisan,
and Secretary Hardesty that Stemple's testimony was based on a nusunderstanding of what
Ruby said he would do if the plant were again closed down by a strike.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish by a preponderance of the credible evidence that
Respondents ' discharge of Davis was discriminatorily mo-
tivated.
2. Regina Stemple
Regina Stemple was employed by Sterling in June or July
1946, and was discharged on November 4, 1950, allegedly
because she refused to comply with Personnel Manager
Glisan ' s instructions to report to President Ruby's office for
an interview concerning her production . At that time she was
employed in the assembly department , where she worked with
Fox on the first operation in the assembling of certain valves.
Although she remained a District 50 member until her dis-
charge, she became an active AFL supporter during the
September 1950 strike , in which she participated , and secured
the signatures of a number of employees to AFL authorization
cards both during and after the strike ; she returned to work
with the rest of Respondents ' employees on September 28.
Respondents were aware , before her discharge , that Regina
Stemple was interested in AFL.
A few days before Regina Stemple ' s discharge , President
Ruby received information that certain valves which were
needed to complete a shipment were not available . During the
course of his investigation , he was told by the employees'
supervisor that excessive talking by Regina Stemple and Fox
was delaying the production of such valves. He subsequently
spoke to Fox about her production and, according to Ruby, Fox
admitted she had been talking too much. The next day, November
4, Ruby received production reports which confirmed that pro-
duction of such valves on November 1 and 2 was substantially
less than on previous days; he then decided to talk to Regina
Stemple, who had not been at her worktable when he had talked
to Fox, and sent Personnel Manager Glisan to bring her to his
office . She refused , however , to accompany Glisanto the office,
unless she was permitted to bring witnesses with her. Glisan
refused to permit anyone to accompany her. After some dis-
cussion between Ruby, Glisan, and Secretary Hardesty, and an
effort to determine the reason for her conduct from her hus-
band, Ira Stemple , she was discharged.
The testimony of Regina Stemple and Glisan is conflicting on
the question of whether Glisan told her why Ruby wanted to
speak to her ; the testimony as to the details of the interview
with Ira Stemple is also conflicting , as is the evidence as to
whether Regina Stemple had engaged in certain conduct which
assertedly did not cause her discharge but which Respondents
assert may have been responsible for the drop in production
which led to the incident resulting in her discharge . We find it
unnecessary under the circumstances of this case to resolve
such conflicts . It is clear that, although Regina Stemple was
assertedly afraid to accompany Glisan to Ruby's office without
STERLING FAUCET COMPANY 791
witnesses because she believed all those called into Ruby's
office got into trouble , and because she also believed she might
get into trouble because of her AFL activity, she at no time
communicated such fears or beliefs to Glisan . It is also uncon-
troverted that Ruby had longmadeapracticeof discussing pro-
duction and similar problems with employees, both inhis office
and in the plant; that a substantial proportion of the employees
were aware of this practice ; and that Respondents ' policies and
techniques were formulated in part on the basis of information
thus obtained from the employees . Under these circumstances,
Respondents could reasonably have believed, as theyassertedly
did believe , that if Regina Stemple's refusal were condoned, it
would set a precedent which could disrupt their avenues of
communication with the employees.
In the absence of other substantial and credible evidence of
unlawful conduct or motivation ," the circumstances sur-
rounding the discharge do not, in our opinion, of themselves
support the General Counsel ' s assertion that Respondents'
asserted reason for discharging Regina Stemple was apretext.
We find, accordingly , that such discharge was not discrimi-
natorily motivated.
3. James E. Carr
Carr was employed on October 27, 1949, and was discharged
on March 26 , 1951 . He served as a District 50 shop steward
from February 1950 until about a month before his discharge.
During the September 1950 strike, he became interested in AFL
and signed an AFL authorization card . Although there is evi-
dence that Carr engaged in activity on behalf of AFL following
the end of the strike , on September 28, there is no substantial
evidence that such activity continued beyond the end of October
1950; nor is there substantial credible evidence that either
Respondents or Carr's fellow employees were aware, until
after his discharge , that Carr was interested in or active for
any union other than District 50.
Except for the month of October 1950, Carr worked in one
section of the assembly department , under the supervision of
Forelady Riley, from the beginning of his employment until
February 13, 1951. Until about December 10, 1950, when
Supervisor Bolyard was placed in charge of that department,
there was no intermediate supervision between the two fore-
ladies in the department and top company management;
Bolyard ' s advent resulted , inter alia, in substantially stricter
enforcement of discipline in the department than had prevailed
theretofore.
"Ira Stemple ' s controverted testimony that Ruby had previously warned him concerning
Regina Stemple ' s alleged solicitation on behalf of AFL in the assembly department would
not in our opinion constitute such evidence, as we construe such a warning , if made, to relate
to her alleged activity on company time.-
7 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is substantial evidence, much of it uncontroverted,
that while he was under the supervision of Forelady Riley,
Carr engaged in conduct which presented a continuing dis-
ruptive influence in the department and caused complaints by
employees to Forelady Riley, and by Riley to President Ruby,
Personnel Manager Glisan, and Bolyard. Although Carr was
reprimanded because of his conduct during this period, he was
not disciplined. As a result of Riley's complaints, however,
Carr was transferred by Bolyard, on February 13, 1951, to
another section of the department where he would be under
Bolyard's more direct supervision. He continued, nevertheless,
to engage in similar disruptive conduct, despite at least one
reprimand from Bolyard, and a warning by Bolyard in sub-
stance that he would have to reform. Finally, on March 26,
1951, Bolyard, observing Carr turn around to talk to another
employee, took Carr to Glisan's office where he was dis-
charged, assertedly because of his past conduct andhis failure
to reform.
We cannot agree with the General Counsel that Respondents'
asserted reason for discharging Carr was not their real reason.
In support of his contention that Respondents' asserted reason
was a pretext, the General Counsel relies onthe circumstances
that: Others who engaged in conduct similar to Carr's were
not disciplined; (2) the incident which precipitated Carr's dis-
charge was too trivial to warrant such action; and (3) Carr's
conduct was tolerated so long as he remained a District 50
steward, but not thereafter.
As to (1), the record establishes that although disruptive
conduct by others may have been tolerated in the assembly
department before Bolyard assumed supervision over that
department, it was not tolerated thereafter, and employees
who thereafter engaged in similar conduct were similarly
disciplined. As to (2), although that incident may appear
trivial, if viewed in isolation, it assumes a different character
when viewed in its context as the latest of a series of incidents
involving an employee who had failed to respond to prior
reprimands and warnings concerning his unsatisfactory conduct.
Under these circumstances, and in the absence of substantial
evidence of either other unfair labor practices; or that Respond-
ents were then aware of Carr's interest in any union other than
District 50, we believe that the fact that Carr was not discharged
until after he was no longer a District 50 steward is no more
than coincidental with Bolyard's establishment of stricter
discipline in the assembly department. We find, accordingly,
on the basis of the entire record, that Carr's discharge was
not discriminatorily motivated.
4. Everett Martin
Martin was employed in the buffing and polishing department,
under the supervision of Superintendent M. Miller, from
STERLING FAUCET COMPANY 793
September 11, 1948, until June 5, 1951 . Respondents contend
that Martin quit ; the General Counsel, that he was construc-
tively discharged . The General Counsel also asserts, and
Respondents deny, that Respondents discriminatorily refused
to rehire Martin about 2 weeks after June 5.
Martin signed a CIO authorization card on March 14, 1951;
openly wore a CIO badge ; and attended some CIO meetings.
There is no evidence , however, that he engaged in any union
activity following the election of April 27, 1951.
Martin, D. Miller , Sloan, and Donaldson , were absent from
work on Monday , June 4; Martin and Sloan had also been absent
on June 2. When these 4 employees arrived at the plant on
June 5, they discovered their timecards were not in the rack;
they thereupon asked Superintendent M. Miller why their
timecards were not in the rack , and were told he had received
a letter from Works Manager Reeves concerning absenteeism
and its effect on production . Superintendent Miller showed
them the letter and talked to them about the problem ; he then
offered them their cards and told them to go back to work.
Donaldson , who was also an active CIO aherent, took his card
and returned to work, but the other 3 refused , saying that as
they had not taken their cards out, they were not going to put
them back . After attempting unsuccessfully to induce them to
take their timecards and return to work , Superintendent
Miller took Martin, D. Miller , and Sloan to Personnel Manager
Glisan who , together with Reeves , also attempted without
success to induce them to return to work. They were finally
terminated , assertedly because of their refusal to take their
timecards and return to work. D . Miller and Sloan were sub-
sequently reemployed for a short period but Martin was not.
Martin testified that among the reasons for his refusal to
accept his timecard when it was offered tohim , was his belief,
based upon information received from other employees who
assertedly had previous similar experiences , that taking his
card would signify employment as a new employee with loss
of accumulated seniority . There is no evidence , however,
that the question of possible loss of seniority was mentioned
by Martin or any of the other participants in this incident; the
only reason expressed by Martin or the others for refusing to
take their timecards was that as they had not taken their
cards out of the rack, they did not intend to put them back.
Whether, on these facts , Martin ' s termination be deemed a
"quit " or a discharge is, in our opinion , immaterial. It is
clear that all of those whose timecards were removed from
the rack were offered an opportunity to return to work; that
nothing was said at any time to indicate any possible change in
their employment status ; and that there was in fact no change
in the employment status of Donaldson who, unlike Martin,
accepted the proffered opportunity . Under all these circum-
stances, we find that Martin ' s termination was notdiscrimina-
tory. We further find no substantial evidence that Respondents
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter failed to reemploy Martin for discriminatory rea-
sons.
IV. CONCLUDING FINDINGS
As we have found that Respondents have not engaged in the
unfair labor practices alleged in the complaint , we shall dis-
miss the complaint in its entirety.
Upon the basis of the foregoing findings of fact and upon the
entire record in these cases , the Board makes the following:
PROPOSED CONCLUSION OF LAW
1. Respondents have not engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1),
(2), and (3) and Section 2 (6) and (7) of the Act.
PROPOSED ORDER
Upon the basis of the above findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby orders that the complaint in these cases against
Sterling. Faucet Company and Sa-Mor Quality Brass, Inc.,
Morgantown , West Virginia , be, and it hereby is, dismissed;
and
The National Labor Relations Board hereby further orders
that the election held on April 27, 1951, be, and it hereby is,
set aside , that,the Direction of Election issued on April 5, 1951,
in Cases Nos. 6-RC-694 and 6-RC-695, be, and it hereby is,
vacated, and that the petitions in such cases be, and they
hereby are , dismissed.
Member Murdock , dissenting in part:
I cannot agree with the proposed decision of my colleagues
concerning the union - security contracts involved in this case.
In my opinion the contracts are illegal because their union-
security - provision conflicts with the proviso to Section 8 (a)
(3) of the Act. I would therefore find that by maintaining these
contracts the Respondents violated Section 8 ( a) (1) and 8 (a)
(2) of the Act. I would further find that the representation
election was properly directed and would consider the merits
of the objections filed to that election.
The majority , reversing the Board ' s decision in the repre-
sentation case, has found that the Respondents effectively de-
ferred application of the union-security provision of the
contracts . In so doing they have , in my opinion , departed from
salutary precedent and reached a result incompatible with
the purposes of the Act.
Without question, the provision of the contracts that all
employees as a condition of employment should become mem-
STERLING FAUCET COMPANY 795
bers of District 50 is contrary to Section 8 (a) (3) of the Act.
It obviously does not give any employees the 30-day grace
period necessary to a lawful union-security agreement. And
District 50, party to the contracts, has never complied with
the filing requirements of the Act and therefore was not auth-
orized to enter into or maintain a union-security agreement
at any time relevant to this proceeding. The majority apparently
recognizes that this union -security provision was not per-
missible under the Act.--Indeed the contracting parties them-
selves were aware of its unlawful character.--The majority
relies, however, upon an "ambiguous" deferral clause to
purge the provision of its illegality. The essential issue of
the case, then, is the interpretation of the deferral clause and
determination of whether it is sufficient to prevent operation
of the otherwise invalid union-security provision.
The deferral clause, which the majority finds adequate to
postpone the effectiveness of the union-security provision,
merely states that the union-security section of the contracts
"shall not be effective if it is now prohibited by law, but in
such case shall become effective if and when such an Agree-
ment shall later become lawful." I am unable to see how this
clause makes clear to employees that the union-security pro-
vision was not operative and corrects the obvious requirement
of the union-security provision that employees immediately
join District 50 as a condition of continued employment. The
clause rather places upon employees the burden of determining,
at the risk of losinig their employment, whether the union-
security provision was prohibited by law because of internal
defects or the incapacity of the union to enter into it. In the
representation proceeding the Board found that the language
of the clause did not effectively defer the operation of the union-
security provision and that the contracts therefore did not bar
a determination of representatives. In my opinion this decision
was a sound one and in keeping with a long-standing policy
of the Board not to recognize contracts containing defective
union-security provisions as bars to representation determi-
nations unless operation of the union-security provisions is
plainly conditioned upon their being legalized." The same
defect which rendered the contracts ineffective as bars to the
representation election renders them unlawful in this complaint
proceeding and dictates a finding contrary to that of the
majority. The principles controlling deferment clauses are
clearly stated in the Intermediate Report adopted by the Board
in Printz Leather Company, Inc., 94 NLRB 1312, 1321, as
follows:
17 See C. Hager & Sons Hinge Mfg. Co., 80 NLRB 163; Unique Art Mfg. Co., 83 NLRB
1250; Wycoff Steel Co., 86 NLRB 1318, Barium Steel & Forge Inc., 88 NLRB 564; P. H.
Mallory & Co., Inc., 89 NLRB 595; Maiden Form Brassiere Co., Inc., 96 NLRB 678; National
Malleable & Steel Castings Co., 99 NLRB 737; Reo Mfg. Corp., 102 NLRB 1493.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The law is well settled that where union-security provi-
sions are incorporated in a collective-bargaining agree-
ment which are not permissible under the Act at the time
they are agreed to by the parties, it is necessary that
the deferment of their application be clearly and unam-
biguously specified in the contract, if, even though they
are not enforced, they are to avoid violating the Act.
(Emphasis supplied.)
Where, as here, the language of the contracts does not clearly
and expressly defer the applicability of their unlawful provision
it is thus contrary to established principles to look to extrinsic
evidence for the intent of the parties with respect to deferment.
To examine extrinsic evidence as the Board did in the Krambo
and Newton cases, cited by the majority, for the purpose of
determining whether admittedly effective union- security provi-
sions exceed the security permitted under Section 8 (a) (3) is
quite different, in my judgment, from examining the extrinsic
evidence here to evaluate a clause which does not clearly
defer applicability of a patently unlawful union-security provi-
sion . The union-security requirement of the contract before
us is clear. Its necessary effect was to coerce employees to
become or remain members of the contracting union and to
restrain employees from exercising their right to refrainfrom
such membership.' Any deferral clause which would serve to
counteract such coercion and restraint must, in my opinion,
be equally as clear.
Even if it were proper to look to the extrinsic evidence,
moreover, I am not persuaded that it supports a finding of no
restraint or coercionbythe contracts in this case. The majority
interprets the evidence as showing that the contracting parties
intended to defer application of the union- security provision until
they might lawfully enforce it and that the Respondents' em-
ployees were aware of that intention. Perhaps the evidence does
show a lawful intent by the parties. It does not convince me
however that such an intent was sufficiently manifested to the
Respondents' employees to remove the coercion and restraint
placed upon them by the existence in the bargaining contracts
of an unlawful union-security provision which had been enforced
under previous contracts and which was not clearly deferred by
the language of the existing contracts. Accordingtothe majority
the intent of the union-security provision of the 1949 (but not
the 1950) contract was explained at a union meeting, and those
new employees "who inquired" were told that membership in
District 50 was not a condition of employment. I question
how effective was the 1949 explanation made to only part of the
Respondents' employees. What explanation was madte to those
employees who were not members of the union or who did not
attend the union meeting? To the Sa-Mor employees who were
18See Julius Resnick, Inc., 86 NLRB 38.
BARBT'S FROSTED FOODS, INC. 797
not covered by bargaining contract until 1950 ? To new em-
ployees who did not ask whether membership in District 50
was required ? The record is devoid of evidence of any notice
to these groups of employees that the clause would not be
enforced . How were these employees to know that the Respond-
ents and District 50 did not intend to carry out the union-
security provision of their contracts ? It is not enough to show
that some of the employees received notice to free them from
the otherwise coercive effect of the contracts . Moreover, I
question the weight accorded bythe majoritytothe testimony of
the Respondents ' secretary that it had come to his attention in
grievance proceedings and otherwise that it was common
knowledge among employees that the Respondents did not
operate under a union shop . I doubt that this testimony--"un-
contradicted " as it may be--warrants a finding that all the
Respondents ' employees were aware that the union - security
provision of the contracts was not in effect. Viewing all the
evidence pointed to by the majority , I must conclude that it
does not cure the "ambiguity " of the deferral clause , assuming,
arguendo , that anything less than a clearly expressed deferral
can be effective.
Finding nothing in the language of the deferral clause or
the extrinsic evidence effectively deferring application of the
union-security provision of the contracts which exceeded the
security permitted by Section 8(a) (3) and were made with
a union not authorized to contract for such security , I conclude
that the Respondents by maintaining such provision interfered
with the rights guaranteed their employees by Section 7 of
the Act and unlawfully assisted District 50. I, would therefore
enter the customary order to remedy such violations.
Member Beeson took no part in the consideration of the
above Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order.
BARBY'S FROSTED FOODS, INC. and LOCAL 2, INTERNA-
TIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL,
SOFT DRINK & DISTILLERY WORKERS OF AMERICA,
CIO. Case No. 4-CA-809. May 7, 1954
DECISION AND ORDER
On December 17, 1953, Trial Examiner Max M. Goldman
issued his Intermediate Report in the above - entitled pro-
ceeding, 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 affirm-
ative action , as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner also found that
108 NLRB No. 111.