The Fairfield Engineering Co.

National Labor Relations Board - Board Decisions

Jul 31, 1947

74 N.L.R.B. 827 (N.L.R.B. 1947)

iii the Matter of THE FAIRFIELD ENGINEERING COMPANY and UNITED
STEELWORKERS OF AMERICA (CIO) and FAIRFIELD EMPLOYEES Asso-'
CIATION (PARTY TO THE CONTRACT )
Case No. 8-C 1801.-Decided July 31, 19!'7
Mr. John A. Hull, Jr., for the Board.
Mr. John H. Clark, of Marion, Ohio, for the respondent.
Messrs. Jacob Clayman, of Columbus, Ohio, William F. Bell, of
Mansfield, Ohio, and Ellis Oiler, of Marion, Ohio, for the CIO.
Messrs. Frank Wiedemann, Lowell L. Cook, Louis Louderback, and
Theodore Lynn, all of Marion, Ohio, for the Association.
Mr. Julius Topol, of counsel to the Board. °
DECISION
AND
ORDER
On September 19, 1946, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
On May 12, 1946, the Board, at Washington, D. C., heard oral argu-
ment in which the respondent and the CIO participated.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
respondent's exceptions and briefs, the contentions advanced at the
oral argument, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the exceptions, additions and modifications noted below.
1. The Trial Examiner found that employee Jeffries was dis-
charged on December 11, 1945, because of his activities on behalf of
the CIO. With this finding the Board unanimously agrees.
74 N. L R. B., No. 133.
827
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner found that, in the period between the date
of the Association's first organization, in 1939, and February 9, 1945,
the date on which the respondent and the Association executed an
amendment to their existing contract, providing for a union shop, the
respondent assisted the Association in violation of Section 8 (1) of the
Act; that, consequently, the afore-mentioned union-shop agreement
was invalid; and that, therefore, the discharge of employee Ford for
refusing to join the Association in compliance with that union-shop
agreement was in violation of Section 8 (3) of the Act. We disagree
with the first of these findings, on which the other two are wholly
,dependent.
In considering the respondent's conduct during this period, it should
be noted that the Trial Examiner found that the respondent did not
dominate the Association in violation of Section 8 (2) of the Act, and
that no exception was filed to this finding. The sole issue presented,
therefore, is whether the conduct of the respondent constituted un-
lawful assistance to the Association, proscribed by Section 8 (1) of
the Act, which invalidated the agreement of February 9, 1945. We
are unable to perceive that it did.
The Association was formed in 1939 by a group of-rank-and-file em-
ployees seeking representation by an unaffiliated labor organization.
As a result of their efforts, a majority of the employees freely desig-
nated the Association as their bargaining representative. The Asso-
ciation then requested and received recognition from the respondent
as the exclusive bargaining agent of the employees, and, following
a period of negotiation, entered into a comprehensive contract with
the respondent. It is clear that the respondent did not sponsor the
formation of the Association, nor did it, so far as the record shows,
improperly influence any employees to choose the Association as their
bargaining agent. We find that the recognition of the Association
in 1939 and the ensuing contract established a lawful collective bar-
gaining relationship between the respondent and the Association.
The legality of this relationship was, in our opinion, unaffected
by the infrequent use of company property for Association meetings
or clerical work, by the occasional donation of stationery to the Asso-
ciation, or by the fact that Superintendent Houser, on two occasions,
more than 5 years apart, suggested to an employee that he join the
Association? In our view, these isolated incidents cannot be con-
sidered as other than trivial in any realistic appraisal of the course
of the respondent's dealings with the Association during this period.
We note, in this connection, that at no time prior to 1945 was there any
1 we find, however, as did the Trial Examinei, that Housei's ingiuu v as to the union.
affiliation of Edler, a new employ ec, was violative of Section 8 (1) of the Act.
THE FAIRFIELD ENGINEERING COMPANY 829
effort on the part of a rival organization to solicit members among the
respondent's employees. In the circumstances, we are not persuaded
that the respondent's generosity to the Association was designed, or
tended to foist the Association upon the employees as a bargaining
'agent.
The Trial Examiner stresses the fact that the respondent permitted
the Association to retain the profits obtained from the operation of
vending machines on company property. As more fully described in
the Intermediate Report, the installation of the vending machines in
1943 was the result of the Association's efforts to bring about the instal-
lation of water coolers for the benefit of the employees. The respond-
ent, upon investigation, found that water coolers were not obtainable
at that time and that the only feasible method of satisfying the needs
of its employees was the installation of vending machines which dis-
pensed soft drinks. The respondent insisted at the outset that the
Association operate the machines, in order that the respondent might
free itself of all responsibility for their continued operation. It is
clear, therefore, and the Trial Examiner so finds, that neither the re-
spondent nor the Association had any other purpose in agreeing to
this arrangement than to effect a practical solution of the problem with
which they were then faced as the result of the request of the employees
for water coolers. In the circumstances and in the light of the facts
concerning the respondent's long-standing bargaining relations with
the Association, as previously described, we are not persuaded that
this concession constituted such assistance as to amount to interference,
restraint, or coercion within the meaning of Section 8 (1) of the Act.'
In view of these conclusions, we further find that the union-shop
agreement of February 9, 1945, was entered into in conformity with
the terms of the proviso of Section 8 (3) of the Act and was, therefore,
lawfully executed. Accordingly, the discharge of Ford on May 22,
1945, for failure to join the Association pursuant to that union-shop
agreement was also lawful under the Act. The Trial Examiner's find-
ing that the discharge of Ford was in violation of Section 8 (3) of
the Act is, accordingly, reversed.
3. As to the respondent's conduct at the time the CIO undertook,
in 1945, to organize the respondent's employees, Chairman Herzog
and Member Houston are of the opinion, contrary to Member Rey-
nolds' view, that at that time the respondent engaged in interference
with the Association's administration and rendered asistance to it
2 Cf. Matter of asifillan Bros., Inc. (53 N L R B 574 , enf'd in 148 F (2d) 990 (C C A.
9)), where, unlike the present case , the practice of donating to a union the proceeds of
vending machines located in the plant, found by the Board to be unlawful, was initiated
at a time when a rival labor organization was actively engaged in an organizational cam-
paign Prioi to that time, the proceeds were divided between the respondent and the owner
of the machines.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,which constituted interference, restraint, and coercion, within the
meaning of Section 8 (1) of the Act. When the respondent learned
ofoits employees' interest in representation by an affiliated union, and
of Brady's efforts to enlist support for the CIO, it was under a duty
to observe a policy of strict neutrality in its conduct.3 Instead, as the
Trial Examiner pointed out, the respondent, m addition to disparaging
the CIO, directly interfered in the intra-union dispute which was
precipitated by Brady's advocacy of CIO affiliation, and materially
aided the anti-CIO faction in getting Brady ousted from the presi-
dency of the Association. In particular, Houser's advice to Brady
to resign his office, the respondent's conduct in permitting the petition
for Brady's ouster to be circulated during working hours and allowing
the special Association election to be held on its premises, and Walker's
action in forbidding removal of the notices of that election, all op-
erated to defeat Brady's attempt to win support for his proposal that
the Association affiliate with ,the CIO. By this conduct the respond-
ent infringed upon its employees' right, guaranteed in Section 7 of the
Act, to govern their own organizational affairs without employer inter-
ference. Finally, like the Trial Examiner, we find that Walker's
conduct in interrogating employee Benner as to how he intended to
vote in the consent election conducted by the Regional Director con-
stituted interference with that election, violative of Section 8 (1) of
the Act. In the circumstances, like the Trial Examiner, we find
that the consent election conducted on May 14, 1945, did not reflect
the free choice of the respondent's employees as to their bargaining
representative. Consequently, we find, in agreement with the Trial
Examiner, that the union-shop contract entered into by the respondent
and the Association on June 2, 1945, was invalid.4
THE REMEDY
The Trial Examiner has recommended that, in order to make the
Board's order coextensive with the threat of future unfair labor prac-
tices and thus effectuate the policies of the Act, the respondent be
ordered to cease and desist from in any manner infringing upon the
rights of employees guaranteed in Section 7 of the Act. This recom-
3 Elastic Stop Nut Corporation v. N. L R. B , 142 F. (2d) 371 (C C A. 8), enf'g 51
N L R B. 694; Reliance Manufacturing Company, et at v. N L R B, 143 F. (2d) 761
(C. C. A. 7), enf'g 28 N. L. R B 105t; N L. R. B v. Laister-Kaufmann Aircraft Corpora-
tion, 144 F (2d) 9 (C C A. 8), enf'g 52 N L R. B 261.
4 We cannot agree with the respondent's argument that the CIO's petition for an election,
and its failure to file any objection to the election, preclude the foregoing finding There
is no basis in this case for treating the consent election agreement as equivalent to a set-
tlement agreement, which the Board should feel bound to honor , for there is no indication
that the Board or its agents were in any way advised as to the eicfstence of the unremedied
unfaii labor practices at the time the election was conducted.
THE FAIRFIELD ENGINEERING COMPANY 831
mendation is partially based on the Trial Examiner's finding that the
respondent's conduct prior to 1945 constituted interference, restraint,
and coercion, and on his further finding that the discharge of em-
ployee Ford on May 22, 1945, was in violation of Section 8 (3) of the
Act. Although we have found that neither the respondent's conduct
prior to 1945 nor the discharge of Ford was in violation of the Act,
we are nonetheless of the opinion that the unlawful assistance granted
to the Association in 1945, the interference with the Board election,
and the discriminatory discharge of employee Jeffries, which, in con-
junction with the threats of Foreman Minton, was designed to dis-
courage membership in the CIO, amply disclose an attitude of oppo-
sition to the purposes of the Act. We believe, therefore, that in order
to satisfy the remedial purposes of the Act, the respondent should be
ordered to cease and desist from in any manner infringing upon the
rights guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Fairfield Engineering
Company, Marion, Ohio, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of America,
CIO, or any other labor organization, or encouraging membership in
Fairfield Employees Association, or any other labor organization, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) Recognizing Fairfield Employees Association, or any successor
thereto, as the exclusive representative of its employees for the pur-
pose of collective bargaining with respect to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until said organization shall have been certified
by the Board as such representative;
(c) Giving effect to its contract of June 2, 1945, with Fairfield
Employees Association, or to any extension, renewal, or modification
thereof, or to any other contract or agreement between the respondent
and said labor organization, unless and until said organization has
been certified by the Board as the representative of such employees;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
7 5 542 0-48-vol 74-54
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist United Steelworkers of America,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Fairfield Em-
ployees Association, or any successor thereto, as the representative of
its employees for the purpose of collective bargaining with respect to
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have been certified by the Board as such representative;
(b) Offer Glenn Jeffries immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges;
(c) Make whole Glenn Jeffries for any loss of pay which he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he normally would have earned as wages from the date of his dis-
charge to the date of the respondent's offer of reinstatement, less his
net earnings during said period;
(d) Post at its plant in Marion, Ohio, copies of the notice attached
hereto marked "Appendix A." 5 Copies of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by the respondent's representative, be posted by the re-,
spondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent has discriminated in regard to the hire and tenure of
employment of employees Michael Ford and John A. Edler, and that
it has engaged in unfair labor practices within the meaning of Section
8 (2) of the Act, be, and it hereby is, dismissed.
5 In the event this order is enforced by decree of a Circuit Court of Appeals , there shall
he inserted before the words "A DECISION AND ORDER" on this notice , the words
"DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING."
THE FAIRFIELD ENGINEERING COMPANY 833
MR. JAMES J. REYNOLDS , JR., concurring in part and dissenting in
part:
As to the discharge of employee Jeffries and the relationship between
the respondent and the Association between 1939 and February 9, 1945,
I subscribe to the majority opinion. But I do not concur in the views
expressed in the main opinion with regard to the events in 1945, fol-
lowing the execution of the February 9 agreement and the CIO's ap-
pearance on the scene . It seems to me that at this point the respondent
did no more than to exercise its undoubted right to express its opinion
that Brady was a troublemaker and that it preferred the unaffiliated
Association to the CIO . In view of the long -established , harmonious,
and legitimate bargaining relationship between the respondent and the
Association , I attach no significance to the fact that the respondent
allowed members of the Association to agitate for Brady's ouster
during working hours and to post notices concerning the special elec-
tion which was conducted , for the most part, during the noon recess.
These transactions are on a par with the Association 's occasional use
of the respondent 's facilities during the 1939 to 1945 period and they
are, in my opinion , no less trivial. I am unable to perceive how the
CIO's advent can have served to convert minor courtesies extended to
a legitimately recognized union, into acts of interference , restraint, and
coercion . I, therefore, disagree with the majority 's conclusion that
the election of May 14, 1945, did not reflect the free choice of the re-
spondent 's employees and, accordingly , dissent from that portion of
the Order requiring the respondent to withdraw recognition from the
Association , and setting aside the contract of June 2, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that :
AVE HEREBY WITHDRAW RECOGNITION from Fairfield Employees
Association as the representative of any of our employees for the
purposes of collective bargaining with respect to grievances, labor
disputes , wages, rates of pay , hours of employment, or other con-
ditions of employment, and we will withhold recognition from it
or any successor thereto for any of the above purposes, unless and
until it shall be certified by the Board as the representative of our
employees.
WE WILL OFFER to the employee named below immediate and full
reinstatement to his former or substantially equivalent position
without prejudice to any seniority or other rights or privileges
I
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously enjoyed; and make him whole for any loss of pay suf-
fered as a result of the discrimination against him.
Glenn Jeffries
WE WILL NOT GIVE EFFECT to our contract of June 2, 1945, with
Fairfield Employees Association, or to any extension, renewal, or
modification thereof, or to any other contract or agreement with
said labor organization, unless and until said organization shall
be certified by the Board as the representative of our employees.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Steelworkers
of America, CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities forvthe purposes of collective
bargaining or other mutual aid or protection. All our employee.-,
are free to become or remain members of the United Steelworkers
of America, CIO, or any other labor organization. We will not
discriminate in regard to hue or tenure of employment or any
term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organiza-
tion.
THE FAIRFIELD ENGINEERING CO.,
Employer.
Dated--------------- By -------------------------------------
(Representative ) ( Title)
NOTE.-If the above-named 'employee is presently serving in the
armed forces of the United States he will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr John A. Neill. Ji , for the Board
Mr John H Clark. of Marion, Ohio. for the respondent
Messrs. Jacob Clayman, of Columbus, Ohio. William F. Bell, of Mansfield. Ohio,
and Ellis Oiler, of Marion, Ohio, for the CIO
llMessis Plank Wiedemann, Lowell L Cook. Louis Loadetbach, and Theodore
Lynn, all of Marion, Ohio. for the Association
ST.ArI TENT OF THE CASE
Upon charges and amended charges filed by United Steelworkers of America,
CIO, herein called the CIO, the National Labor Relations Board, herein c,iPed
THE FAIRFIELD ENGINEERING COMPANY 835
the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio),
issued its complaint dated June 10, 1946, against The Fairfield Engineering Com-
pany, Marion, Ohio, 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. Qopies of the
complaint accompanied by notice of hearing thereon were duly served upon the
respondent, the CIO, and also upon Fairfield Employees Association, herein called
the Association, a labor organization alleged in the complaint to be dominated and
supported by the respondent.' With respect to the unfair labor practices, the
complaint alleged, in substance, that the respondent. (1) by various described
acts and statements of its officials or representatives, interfered with its em-
ployees in the exercise of their rights to self-organization; (2) sponsored, pro-
moted and assisted the Association, dominated and interfered with its admin-
istration, and contributed support thereto; and (3) - about January 15, 1945,
discharged John A Edlei, and about December 20, 1045, discharged Glenn Jeffries,
because of their membership in, and activities on behalf of, the CIO; and also
about May 15, 1945, discharged Michael Ford for the same reason and because he
had refused to join the Association.
Thereafter the respondent filed its answer, dated June 17, 1946, in which it
admitted certain allegations of the complaint, but denied the allegations of unfair
labor practices.
Upon due notice, a hearing was held at Marion, Ohio, from June 24 to June 27,
1946, inclusive, before Charles W. Schneider, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respondent, the
CIO, and the Association appeared and were represented by counsel. All parties
participated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. Counsel for the Association filed an oral answer in which certain allega-
tions of the complaint were admitted, but in which the allegations respecting the
Association and the alleged discriminatory discharges were denied.
At the opening of the hearing the respondent moved to dismiss the amended
charge on the ground that the CIO had shown no interest, and on the further
ground that the Association had been designated as the collective bargaining
representative of the respondent's employees in an election conducted under the
auspices of the Board. At the same time the Association moved to dismiss on the
grounds that the proceedings constituted a collateral attack upon the said election.
These motions were denied. At the close of the Board's case the motions were
renewed and again denied. Motions to dismiss on the merits were denied without
prejudice to their renewal at the conclusion of the evidence. All these motions
were renewed at the close of the hearing, and ruling reserved. They are dis-
posed of by the following findings and recommendations. All parties were
afforded opportunity to argue the issues orally before, and to submit briefs to,
the undersigned. Briefs have been received from the respondent and the
Association.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
1 The complaint described the Association as "Fairfield Engineering Association " The
Association 's collect name is as is given above . No issue is raised as to the intoriect
designation in the complaint, or as to the validity of service of process
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Fairfield Engineering Company is an Ohio corporation with its principal
place of business in Marion, Ohio, where it is engaged in the manufacture of
various types of conveying machinery. The principal raw materials used are
castings and steel. During the calendar year 1945 the respondent purchased
and used raw materials of a value in excess of $400,000, of which amount more
than 25 percent was received from points outside the State of Ohio. During the
same period thearespondent shipped finished products of a value in excess of
$1,500,000, of which amount over 75 percent was shipped to points outside the
State of Ohio. The respondent admits that it is engaged in commerce within
the meaning of the Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, and Fairfield Employees Association, unaffiliated, are labor
organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES 2
A. The Association
1. Formation; events prior to 1945
During the early part of 1939, the American Federation of Labor and the
Congress of Industrial Organizations were engaged in organizing the employees
of various industrial establishments in the city of Marion. Apparently, however,
neither organization made any effort at that time to organize the employees of
the respondent, whose personnel then consisted of about 35 non-supervisory em-
ployees. It has since increased to about 145.
In January or February, 1939, concurrently with this activity by the CIO and
the AF of L, Frank Markley, a non-supervisory employee of the respondent. who
had ,been a member of the AF of L and of an unaffiliated union of Pennsylvania
Railroad employees, conceived the idea of forming an unaffiliated labor organiza-
tion for the purpose of bargaining collectively with the respondent Pursuant
to his idea, Markley approached a number of fellow employees and suggested the
formation of the Association. Among others whom Markley approached was
Lowell Cook, also a non-supervisory employee. Cook, who thereafter actively
participated in the organization, had been a member of the United Mine Workers.
Discussion of Markley's proposal, and solicitation and promotion on behalf of it,
partially on company time and property, ensued among the respondent's em-
ployees. When this activity came to the attention of Gerald Hewetson, the re-
spondent's works manager, Hewetson instructed the respondent's supervisory
employees to maintain an attitude of neutrality and not to interfere with any
organizational activity among the rank and file employees. While these instruc-
tions were not communicated to the employees, there is no evidence that they
were violated during the period of the organization of the Association.
2 Except as may be otherwise indicated hereinafter, all the findings made by the under-
signed herein are based upon credible and substantially uncontradicted testimony. or other
undisputed and credible evidence. Where there is substantial conflict over the facts, the
report so indicates.
THE FAIRFIELD ENGINEERING COMPANY 837
After sufficient interest in the Association had been evinced, Markley arranged
a meeting of employees after working hours at a hall in the city of Marion. A
majority of the respondent's rank and file employees attended, and Markley
explained his purpose. The employees present unanimously approved his pro-
posal and a committee was elected to draft a set of by-laws.' Markley paid for
the rental of the hall, but a collection was later taken up among the employees,
and he was reimbursed.
About a week or 10 days later, another meeting was held at which a committee
was selected to draft a contract for submission to the respondent. This meeting
was held after working hours but, unlike the previous one which was off company
property, it was held in the blacksmith shop at the respondent's plant. A third
meeting, at which officers were elected, was held sometime afterward, in April
or early May, at a hall in Marion. Virtually all the respondent's non-supervisory
employees were present at this latter meeting No supervisors or officials of the
.respondent attended any of the organizational or later meetings, although they
have attended social gatherings following business meetings. Supervisors were
excluded from membership in the Association' Dues were set at $ 25 per month
In the interim between the second and third meetings of the Association, the
committee which had been appointed to draw a contract completed a draft of its
work for submission to the respondent. The committee then approached Erle
Houser, the respondent's superintendent of production, and requested recognition
and the execution of a contract. Houser referred the committee to Hewetson, the
works manager, who arranged a conference. Hewetson was informed that the
Association represented a majority of the employees. No proof as to majority
was proffered or requested, however.`
Therafter, about May 17, 1939, the negotiating committee of the Association
met with officials of the respondent and presented their proposed contract, along
with a copy of the Association's by-laws. After a discussion of the Association's
proposals, the respondent presented counter-proposals. These counter-proposals
were then submitted to a meeting of the Association. The members voted to
accept On the following day a document was passed around in the shop for
7 There is some confusion in the testimony as to whether this committee was selected
at the first or the second meeting After consideration, the undersigned has concluded
that it more probably occurred at the first
The Board contended that employee Paul Louderback, an active member of the Asso-
ciation, prominent in its formation , and for a time its president, is a supervisor whose
activities are imputable to the respondent. Louderback, a brother of Louis Louderback,
the Association's vice-president, is a blacksmith who, since 1944, has substituted for the
shop foreman , Shoupe , when the latter is absent. He iS hourly paid and does manual
work. Superintendent Houser testified that lie would give some weight to Louderback's
recommendations in the absence of Shoupe , to the extent that he might transfer an un-
satisfactory employee until Shoupe returned. However, except for annual vacations,
Shoupe is not frequently absent The undersigned is not persuaded that Louderback's
supervisory status is sufficiently substantial to warrant imputing his activities to the
respondent.
'The finding that Hewetson was informed that the Association represented a majority
is based upon Hewetson 's testimony. Markley, who was on the committee, testified that
he did not tell Hewetson that the Association represented a majority, and that Heiietson
did not ask Hewetson, however, did not testify that Markley made the statement he
attributed it to "the committee " Nor did Hewetson testify that he asked whether the
Association represented a majority The undersigned finds no necessary conflict in their
testimony . One of the other committee members may have made the statement to
Hewetson.
There is no evidence that proof of majority was requested As to this, Hewetson
testified that the men were all employees of long standing , and that lie accepted their
word that they represented a majority.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to sign if they wished acceptance of the agreement. A majority signed.
The contract was then executed by the parties and became effective on June
2, 1939.8
The agreement provided for exclusive recognition of the Association as the
collective bargaining representative of the rank and file employees, set up
various terms and conditions of employment, including a provision for seniority
rights, and established a grievance procedure. Although the contract 'contained
a clause stating that the Association had presented to the respondent evidence
that it represented a majority of the employees, there is no indication in the
record that the Association presented such evidence.
From June 2, 1939, to the present time the respondent has continued to
recognize the Association as the bargaining representative Up to 1945 the
Association's representative status was undisputed On June 1, 1940, and again
on March 11, 1942, supplemental agreements to the 1939 contract were executed
relating to the length of the work week, holidays, vacations, wage rates, and
bonus, but the 1939 agreement was otherwise continued in effect.
In 1943 the respondent granted permission to the Association to install and
operate facilities in the plant, including vending machines, for the distribution
of soft drinks, milk, and candy to the employees. This matter is more fully
discussed hereinafter.
During the above period of time the Association, which had no stationery of
its own, made apparently free use of company supplies in the conduct of its
business , and some of its clerical work was performed on company time and
property by Carolyn Myers, a clerical employee in the shop office, and secretary
of the Association's Board of Trustees.
In hiring new employees Superintendent Houser told them of the Association,
referred to it as a good organization, spoke of its benefits and low dues, informed
them that relations between the respondent and the Association were harmonious,
and suggested that they join the Association. Houser also sometimes asked new
employees during hiring interviews whether they were members of a labor
organization!
2. Events in 1945
Fioni June 1939 to the beginning of 1945, relations between the respondent and
the Association remained amicable and undisturbed. There is no evidence that
any dissatisfaction was voiced during that pei iod of time by any of the employees,
and no other labor organization contested the Association's representative status.
Employees Ernest Bower and Lowell Cook, both members of the negotiating com-
mittee, testified that the final contract n as a compromise of the original proposals and
the counter-proposals Flowevei, the terms of the counter-proposals which are in evi-
dence are identical iiith those of the final contract Markley's testimony also indicates
that the counter-proposals were accepted It is therefore found that Bower and Cook
were mistaken in their recollection
i The finding as to Houser ' s suggestions and inquiries are based on the undisputed
testimony of John Edler, Robeit Gamble, and Glenn Jeffries, former employees. Superin-
tendent Houser did not recall having recommended to Gamble that he join the Association,
but testified that, because they were personal friends, he may have "insinuated something
that was getting at that." As to whether he inquired into the union membershiu of new
employees, Houser's testimony was as follows
Not for the information alone I may when I employed an individual , in explaining
that we had an independent organization there , have asked him , " Do you belong to
a labor oiganization "
[Butt I didn ' t make it a practice of doing that. I can't say who I asked and who I
didn't.
THE FAIRFIELD ENGINEERING COMPANY 839
In January 1945, however, some of the employees in the plant evinced an
interest in an affiliated organization, and there were discussions as to whether
to retain the Association, or to affiliate with the CIO or the AF of L Thereafter,
relations between the respondent and the Association became somewhat un-
settled. This disturbance coincided with the election, in February 1945, of a
new president of the Association, Willard Brady
Prior to the election of Brady, however, and during the month of January
there had been an upsurge of activity on the part of the Association. Thus,
at the January 30, 1945 meeting, demands were formulated for a closed shop,
a $025 per hour wage increase, more liberal vacations, and miscellaneous im-
provements in working conditions. These were transmitted to the respondent.
Early in February the respondent agreed to the Association's request for union
security, and on February 9, 1945, executed a supplement to the 1939 contract
requiring membership in the Association, after 30 days of employment, of all
employees in the bargaining unit.
On February 6 the respondent rejected the Association's request for the $0.25
per hour increase on the ground that it was unreasonable. In rejecting it, the
respondent distributed a bulletin among the employees in which it stated its
position, but announced its willingness to negotiate a "reasonable" increase.
Thereafter, a $010 per hour increase retroactive to January S was granted.
Whether this increase was unilateral, or was pursuant to further negotiation
does not appear. An additional $010 per hour was granted in June, when
additional demands were pressed
With respect to the Association's demand for more liberal vacations, the re-
spondent submitted a counter-proposal which the Association rejected The
respondent then consulted the National War Labor Board, which indicated that
it would approve a vacation plan about midway between what the Association
demanded and what the respondent offered. In a bulletin to the employees,
the respondent, in April, informed them that it would grant the plan which the
NWLB had indicated it would approve. At the request of the Association officials,
a meeting of the employees was then called in the plant during a recess, and the
employees asked to vote on acceptance of the plan They voted to accept
The election of Brady
On February 17, 1945, Willard Brady was elected president of the Association.
Brady, who testified as a witness for the Board, impressed the undersigned as an
articulate and aggressive personality. Within a short time after his election,
and apparently as a result of his militant manner in pressing Association de-
mands, relations between Brady and some of the respondent's officials became
strained Brady accused the respondent of not living up to its agreements and
of not processing grievances ; the respondent in turn accused Brady of upsetting
the harmonious relations which had existed theretofore.
During the month of March 1945 relations apparently became progressively
worse According to Brady's testimony, although he was riot at that time a
member of the CIO, he finally came to the conclusion that the employees could
be more effectively represented if the Association affiliated with the CIO. At a
meeting of the Association held on March 31, 1945, Brady explained the merits of
the CIO affiliation and urged such a course upon the members
Sometime during this period, at a conference with John Bray, the respondent's
president, Brady told Bray that the Association was not getting cooperation
from the respondent, and that if Gray would not cooperate with the Association,
the employees would get a union, the CIO, with which he would have to co-
operate. Brady likewise stated that more favorable conditions for the ,in-
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees could be secured through the CIO than through the Association. Bray,
in turn, accused Brady of destroying the amicable relations theretofore existing
between the respondent and the Association; declared that he could not trust
Brady; asked why, if the CIO could secure more for the employees, working con-
ditions in other plants in Marion represented by the CIO, did not reflect it ;
and further said that if "outsiders " came into the plant and made unreasonable
demands it would be necessary for the respondent to resist them. Bray con-
cluded with the statement that the CIO was operated as a "racket" for the
benefit of its leaders and not for the benefit of its members e
Brady's actions as president of the Association also evoked comment from
Superintendent Houser. Sometime in April, according to Brady's uncontradicted
testimony, Houser suggested to Brady that if he was dissatisfied with the Asso-
ciation he should resign as its president.
The ouster of Brady
Brady nevertheless continued to advocate a shift to the CIO and solicited
support among the employees These activities aroused strong resentment among
certain members and officers of the Association. Some demanded his resigna-
tion. Brady offered to resign if the employees would sign a petition asking him
to do so. At an Association meeting held on April 24, 1945, charges were hurled
from the floor that Brady was "selling out" the Association to the CIO, and
demands reiterated for his resignation and for a new election; which motions
Brady refused to entertain. In the resulting exchange of recriminations an
open fist fight was narrowly averted, and the meeting broke up in acrimonious
disorder.
A petition calling for Brady's resignation was then circulated in the plant
during working hours for the signatures of employees. Brady, however, refused
to resign. A majority of the other Association officers then held a meeting of
the officers in the plant, but during a recess, with Brady absent, and determined
to hold a new election for the office of president, with two candidates on the
ballot, Brady and Lowell Cook. This election was held on April 27, in the plant,
mainly during the lunch.recess, tilthough some ballots were cast during working
hours . Brady was defeated.
On the morning of the election, notices as to its time and'place were posted on
the plant bulletin boards. Brady tore down several of them Julian Walker,
the respondent's factory manager and vice-president in charge of manufacturing,
reprimanded Brady for this action, telling him that the bulletin boards were
company property and that Brady should let them alone .0
8 The above findings as to this conversation are based on the testimony of Brady and
Bray , as to which there is slight , but not substantial , conflict There is variance as to
whether the statements occurred during a single conversation , as Bray testified , or whether
they were made partially in one conversation and partially in another , as Brady testified.
The undersigned deems it more probable that they occurred in the same conversation.
Brady and Francis Bonner, a former employee , testified that after Brady tore down the
notices, guards were posted to protect the bulletins , among them Lowell Mitton (now a
foreman , but at that time a non -supervisory employee), and Louis Louderback , the Asso-
ciation's vice-president Louderback denied that any guards were placed Mitten did not
testify Brady ' s and Benner ' s testimony is inherently plausible . They may , however,
have misinterpreted 1litton's and Louderback ' s accidental presence near the bulletin boards
In any event , there is no apparent basis for imputing Mitton's and Louderback ' s actions
to the respondent.
THE FAIRFIELD ENGINEERING COMPANY
The Board election
841
Shortly after Brady's ouster, and upon the insistence of the Association, a con-
sent collective bargaining election was arranged under the direction and super-
vision of the Board's Regional Director. This election, in which both the Asso-
ciation and the CIO were on the ballot, was held on May 14, 1945.
Shortly prior to the election, Factory Manager Walker paid a visit to the
home of Employee Francis Benner and asked Benner whether he knew how
to vote Benner answered "Yes, we don't want the CIO." Around the same time,
Percival, superintendent of erectors and a supervisory employee, told Brady
that he would rather see the A. F of L "get in" the plant than the CIO, for
the reason that affiliation with the latter organization would "hurt" the respond-
ent in the field, where it had to deal with A. F. of L. construction unions.1°
Prior to the election there was some campaigning in the plant during working
hours by officials of the Association.
The Association received a majority of the votes cast in the May 14 election"
On May 19, 1945, no objections having been filed to the conduct of the election
or to its results, the Regional Director issued a Consent Determination of Repre-
sentatives ccitifying that the Association was the exclusive representative of
the respondent's production and maintenance employees, excluding, inter alia,
supervisory and clerical employees.
On June 2, 1945, the respondent and the Association executed a new collective
bargaining contract for the period of 1 year, providing, inter alia, for member-
ship in the Association as a condition of employment of all employees upon
completion of their 30-day probationary period of employment.
Conclusions with respect to alleged domination of the Association
So far as the record establishes , the idea for the Association originated wholly
with the employees from a desire to establish a bona fide collective bargaining
agency There is no evidence that any supervisor or official of the respondent
suggested or participated in its formation . Markley, its originator , did testify
that one of the reasons he proposed an independent organization was that he
did not wish an affiliated union Such a motive, however , does not make an
independent organization illegitimate . The undersigned is not persuaded that
the Association was dominated by the respondent.
There is evidence , however, that the respondent favored the Association, as-
sisted it, interfered in its administration , and encouraged membership in it.
The Association made use of the respondent 's facilities and property in its
organization and in its subsequent administration . Thus, promotion and solicita-
tion on its behalf was carried on in the plant during working hours during the
period of its formation , to the knowledge of Works Manager Hewetson. One
10 The finding as to Walkei's statement to Benner is based on the latter's undenied testi-
mony • that as to Percival's on Brady's testimony, similarly undisputed. Equipment
manufactured by the respondent is erected by it in the field A force of erectors, of whom
Peicival was the superintendent, was employed by the respondent for this purpose. Brady,
an erector, was under the supervision of Percival.
over production and maintenance employees.
Percival, however, had no authority
11 The election results were as follows .
Approximate number of eligible voters----------------------------------- 125
Votes cast for the Association------------------------------------------ 56
Votes cast for the CIO------------------------------------------------ 48
Votes cast against both organizations------------------------------------ 3
Challenged ballots----------------------------------------------------- 2
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the organizational meetings was held on company property. Indeed, according
to the testimony of Louis Louderback, the Association's vice president, other
Association meetings have also been held on company premises. Having no
stationery of its own, the Association made apparently free use of company
supplies in the conduct of its business. The petition calling for Brady's resigna-
tion was cii culated during working hours and the election to oust him was held
in the plant Some of the Association clerical work was done on company time
and property.
Some of this activity, of course, may not have come to the attention of the
respondent. Of most of it, however, the respondent was aware.
The events between January and April, 1945, when there was sentiment
among the employees to affiliate with the CIO, show most clearly the respondent's
preference for the Association, its interference in its administration, and oppo-
sition to the CIO. Thus, Bray, the respondent's president, in his conversation
(referred to heretofore) with Brady, the Association's president, defended the
Association, referred to the CIO as a "racket," and intimated that if the re-
spondent had to deal with the CIO it would be less favorably inclined to grant
the employees concessions. Factory Manager Walker inquired of Employee
Benner as to how he was going to vote, a form of inquiry violating the secrecy of
the ballot, and an interference in affairs which are none of an employer's concern.
Superintendent of Erectors Percival declared to Brady his preference for another
union than the CIO. Houser suggested to Brady that he resign from the Associa-
tion These incidents are illustrative of interference by the respondent in
Association business when it felt that its concept of what were desirable relations
was being disturbed. The respondent's interjection of itself -into the situation
at a time when the Association's future course was being debated by the employees
could not have failed to influence the result in some measure.'
In addition to the above, Houser on several occasions prior to the execution
of the closed or union shop contract of February 9, 1945, spoke appiovingly to
new employees of the Association and suggested that they join it. This action
constituted further assistance to the Association, encouragement of membership
in it, and interference with the employees' right to make their own selection As
has been indicated, Houser also, on occasion, asked prospective employees whether
they were members of any labor organization While he may not have intended
any interference, the Board has consistently held that inquiry by an employer
into the union membership of prospective employees is inherently coercive, dis-
courages membership in labor organizations, and constitutes an unfair labor
practice. It is so found.
The incidents related above demonstrate a lack of understanding on the pact
of the respondent of the requirement for complete neutrality in the matter of
employee organization. An employer can probably not avoid at times the per-
sonal conviction that a particular union is good or bad for his employees or for
his business. When that conviction is manifested to the employees, hove,, er,
sensitive as they usually are to the reactions of their employer, it may operate
to produce a conclusion wholly ('ontrary to the fact ; namely, that advancement
and job security are dependent upon concurrence in the employer's judgment.
When that occurs, the freedom of selection envisioned by the Act vanishes. The
zz No finding is made that Percival's statement to Brady was coercive Nevertheless, the
statement, part of the surrounding pattern of events, is further indicative of the respond-
ent's preference for the Association and opposition to the CIO Standing alone, Bray's
statements to Brady may have been privileged. When viewed in the context of the respond-
ent's other conduct, however, there is an intimation of reprisals if the employees should
designate the CIO.
THE FAIRFIELD ENGINEERING COMPANY 843
respondent 's partiality here is most clearly shown by its toleration of the holding,
on company property , of the election to oust Brady. It is not denied , nor could
it be, that the respondent knowingly permitted and sanctioned the election. In
this instance , the respondent 's dislike for Brady ( a dislike rooted in the re-
spondent 's disapproval of Brady ' s positive concepts as to the function of the
Association ) impelled it not only to permit the election to, be held, thus display-
ing to the employees its- own partisanship , but, having done so, to reprimand
Brady for displaying his own when he tore down some of the election bulletins.
The respondent 's action in permitting a labor organization to hold an election
on its premises in a factional intra -union dispute in which the real issue was
whether the organization should remain unaffiliated or affiliate with the CIO, and
in which the respondent had demonstrated a deep personal interest , is a type of
conduct which cannot be condoned
The respondent ' s action in permitting the Association to maintain the vend-
ing concession in the plant also constituted unlawful assistance to the organi-
zation. The record discloses that the Association 's net profit from this opera-
tion is around $20 to $30 a month For the month of March 1945 , an apparently
typical month , the net profits were about $22. In comparison , dues collected for
that month were approximately $76. The machines were installed , according to
the credited testimony of Works Manager Hewetson , in the spring of 1943, under
the following circumstances : The employees had requested the installation of
a water cooler . Being unable , because of war scarcities , to secure such a device,
the respondent offered to provide a soft drink machine, on condition that the
Association be responsible for its operation . The Association at first refused,
but later accepted . Additional facilities for the sale of milk and candy were
thereafter installed . Supplies for the concession are received from local mer-
chants, and billed to and paid for by the respondent , for the reason that the Asso-
ciation had no credit rating. Association reimburses the respondent. The
machines are cared for by a committee of the Association during rest and lunch
periods and after work hours . Occasionally these duties may run into working
time for a few minutes.
On the basis of the figures previously cited , the Association 's net receipts from
the concession equal about 30 peicent of its receipts from dues, and about 20
percent of its entire income. While the operations of the concession is not a
direct contribution of financial support, it constitutes employment of the re-
spondent ' s property in such a way as to assist substantially in the financial main-
tenance of the Association . This is true even though , as the undersigned finds,
there is no substantial basis for inferring that the iespondent permitted the prac-
tice with the specific intent of assisting the Association financially. It is the
effect of the respondent s conduct , and not its intent, which must determine its
alidity. The effect is to assist a labor organization by permitting it to use the
employer 's property for financial gain. It ditters from the collection of union
dues on the premises , but on the employees ' own time , in that the latter is merely
an incident of normal union activity. Since the income here becomes part of the
general. funds of the Association , the situation is also unlike that where the em-
ployer makes contributions to a union ' s welfare fund The Board has held in
previous cases that the grajit of concessions of this kind constitutes assistance
to a labor organization.13
In defense of the use by the Association of company property , the respondent
and the Association point to the fact that employees were and are permitted to
13 See for example , Gillillan Rios , Inc . 53 N L II B 574 , enf'd as mod 148 F (2d)
990 (C C A 9) ; Ciutiss - lVriglit Corporation , 39 N L It B 992
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use company premises and equipment after working hours for the repair of
cars, for athletic meetings, and for the formation of a credit union. Such use,
however, does not excuse the dedication of the property to the formation, ad-
ministration or financial maintenance of a labor organization. The former ac-
tion, so far as the undersigned is aware, is not proscribed by law. The latter,
however, is. Use of an employer's premises to form a labor organization, or to,
carry on its activities, constitutes assistance and leads to the conclusion by the
employees that the organization has the approval and favor of the employer, and
that they would therefore be wise to join it. Such assistance is in violation of
the Act.
In the context of unremedied unlawful assistance to the Association and inter-
ference described above, the holding of a collective bargaining election with the
Association on the ballot could not have afforded the employees a free choice of
representatives. The fact that the election of May 14, 1945, was conducted by the
Board's Regional Director and that no objections were filed to its results are
factors which should be, and have been, considered in determining whether the
events prior to the election constituted interference and prevented a free choice.
Interference did occur, however. The election did not dissipate it. The results
were therefore not indicative of a voluntary selection Nor is the fact that the
election was held res adjudicata on the merits of the unfair labor practices,
which were not in issue and not litigated in that proceeding.
It is found that by the above-described course of conduct the respondent unlaw-
fully assisted the Association, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act" It is
further found that by reason of this illegal assistance the contracts of February 9,
1945, and June 2, 1945, between the Association and the respondent are invalid
B. The discharges
1. Michael Ford
Michael Ford was hired by the respondent in August 1944 and was discharged
on May 22, 1945. As has been indicated heretofore, on February 9, 1945, the re-
spondent entered into a supplemental agreement with the Association in which
membership in the Association was made a condition of employment
Ford did not join the Association. On May 22, 1945, several days after the
election conducted by the Board, which the Association won, Lowell Cook, the
Association's president, and Fred Spurlock, a member, approached Ford in the
plant on working time and asked him it he wished to join the Association Ford
inquired whether he would get a raise if he joined. Cook and Spurlock replied
in the negative Ford responded that he would not join Superintendent Houser
was notified of Ford's refusal Later in the clay he approached Ford, told him
that the respondent had an agreement for a closed shop and that he would have
to join the Association Ford refused. Houser then said that he would have to
let him go Ford was thereupon discharged.
Since at the time of the execution of the February 9, 1945, contract the Asso-
ciitition had been unlawfully assisted by the respondent, the contract cannot be
is Although the operation of the vending concession is found to constitute an element
of assistance to the Association, and hence an unfair labor practice, the undersigned does
not find it to establish, per se, a violation of Section 8 (2) The Board has found such
conduct to be an element in it general pattein of domination and support Cf Cilflitaii
Bios, Inc, Curtiss-Wright Corpoiation, supra. The undersigned finds that the eiidence
here does not add up to such a pattern
THE FAIRFIELD ENGINEERING COMPANY 845
given any effect. The respondent was therefore not privileged to require mem-
bership in the organization as a condition of employment. Consequently, the dis-
charge of Ford was not within the protection of the proviso to Section 8 (3) of the
Act. It is therefore found that Ford was discharged for his refusal to join the
Association at a time when the respondent was not free to impose membership
in the organization as a condition of his employment; and that the respondent
thereby discriminated in the hire and tenure of Ford's employment, encouraged
membership in the Association, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Glenn Jeffries
Jeffries was hired by Superintendent Houser on November 12, 1945 His im-
mediate supervisor was Foreman Lowell Mitton, a supervisory employee having
authority to recommend discharge When he was hired, Jeffries was informed
by Houser that, in accordance with the respondent's custom, he was on a pro-
bationary status for 30 days.
Jeffries engaged in solicitation for the CIO in the plant, and, according to his
testimony, solicited all the employees in his department, signing up several.
Jeffries' job was assembling work which was later welded. He was discharged
by Superintendent Houser, upon the recommendation of Foreman Mitton, on
December 11, 1945, the 29th day of his employment, for the stated reason that his
work was unsatisfactory.
Lowell Mitton became a foreman on June 4, 1945, 2 days after the execution
of the respondent's current contract with the Association. Prior to that time
Mitton had been an officer in the Association and an active member since its
formation. During the dispute in the spring of 1945 over whether the employees
should affiliate with the CIO, Mitton had been prominent among those opposing
the shift. At that time he proposed from the floor at an Association meeting that
Brady be removed from office because of his efforts to take the Association into
the CIO When he became a foreman, however, Milton resigned from the
Association Two or three days prior to the election of May 14, 1945, Mitton
told John Shirea, then an employee, that he (Mitton) was "working out of th,^
front office," and that Shirea should not join the CIO"
About a week before Jeffries' discharge, according to the uncontradicted and
credible testimony of Richard Clark, a former employee, Mitton, in the presence
of several employees, said of Jeffries : "Here comes another of the fellows that
probably signed up with the CIO," and further said, "if the fellow who is
organizing it [doesn't] watch out, he [won't] be here long." John Shirea
testified credibly and without contradiction that, shortly before Jeffries' dis-
charge, Mitton asked Shirea whether Jeffries was an organizer for the CIO:
and that when Shirea answered that he did not know, Mitton said that if he
"knew for sure" he would "get rid of" Jeffries.
The respondent asserts, and Superintendent Houser testified, that Jeffriei
was discharged because lie was unable to meet the production requirement on his
shift. According to Houser, the volume of production fell off on the welding
unit for which Jeffries did the assembling, and Houser inquired of Foreman
Mitton as to the cause. Houser testified that Mitton informed him that Jeffries
was unable to assemble the work as fast as he should have, and recommended
'' The finding as to Mitton's statement to Shirea is based on the latter's undenied testi-
mony Suice Mitton was not a foreman at that time, no inference is drawn that Mitton
was in fact "working out of the front office " The statement indicates, however, the extent
of Mitton's interest in the Association, and his opposition to the CIO
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jeffries' discharge, which Houser then approved. Houser, however, had no
personal knowledge of the facts, and relied on Mitton's appraisal.
Mitton did not testify, and no explanation is advanced for his failure to
do so. There is therefore no direct evidence from any of Jeffries' supervisors
as to whether his work was unsatisfactory. Shirea testified that Jeffries was
slightly slower than the other and more experienced assemblers . Shirea
ascribed this to difficulty encountered by all new employees in learning to read
the blueprints, and characterized Jeffries' work as unusually accurate. There
was no criticism of Jeffries' work during his period of employment. Jeffries
was given no warning of any kind.16
From the foregoing facts it seems clear that the discharge was actually
made at the instigation of Mitton. Although Houser approved if, he had no
personal knowledge of the calibre of Jeffries' work, or as to what employee,
If any, was responsible for the falling off of production a In sum , so far as
Houser was personally aware, Jeffries' work may have been entirely satis-
factory, and Jeffries may have been wholly innocent of responsibility for the
condition which supposedly provoked his discharge. Whether Jeffries was
discriminatorily discharged must therefore be determined from evaluation of
the motives of Mitton, the only supervisor having personal knowledge of the
character of Jeffries' work, and the person directly responsible for his dis-
charge. As has been seen , however, Mitton did not testify.
Mitton's statements to John Shirea and Richard Clark, which have been re-
lated heretofore, indicate that Mitton suspected Jeffries of being the person
"organizing" for the CIO, and was prepared to discharge him for that reason.
Mitten's interest in the Association, as evidenced by his prior activity in it,
supports this conclusion.
Jeffries' discharge occurred shortly after the above statements. There is no
apparent substantial ground in the record for the assertion that his work was
unsatisfactory He was not criticized or warned Under these circumstances,
the failure of Mitton to testify as to the ground for the discharge, or in iefnta-
tion of the statements attributed to him by Shirea and Clark, compel the conclu-
sion that in recommending the discharge, Milton was seeking to remove the per-
son responsible for the CIO activity in the plant.
It is therefore found that Jeffries was discharged because of his activities
on behalf of the CIO, and that the respondent thereby discriminated in the hire
and tenure of his employment and discouraged meinbeiship in the CIO; and that
by that action, and additionally by Mitton's statements to Shirea and Clark,
the respondent interfered with, restrained and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
3 John Edler
Edler, a referral from the United States Employment Service, was hired by
Superintendent Houser on January 14, 1945, worked 1 y_> days and was then dis-
charged for the asserted reason that it was discovered that his hiring had in-
creased the respondent's pay roll in excess of War Manpower Commission
"Jeffries testified that about a week before his discharge Mitton made the statement to
him that the work should be gotten out faster The comment appears, however, to have
referred to all the assemblers, and not to Jetfues alone In any event, even if interpreted
as cuticism and directed at Jeffries the statement does not indicate any substantial
dissatisfaction
17 The undersigned credits Houser's testimony as to the fact that production fell off ;
although it is to be noted that available records assertedly supporting that contention
were not produced.
THE FAIRFIELD ENGINEERING COMPANY 847
ceilings . In his hiring inteiview, Edler was asked by Houser whether he be-
longed to a labor organization Eller said that he was a member of the CIO.
Houser then referred to the good relations existing between the respondent and
the Association and suggested that Edller join the Association.
During the lunch hour on this first day of employment, Eller had a conversa-
tion with employee Hosier Hubbard and two other employees During this con-
versation Hubbard told Edler that these was a confusion in the plant over
whether the employees should join the Association or the CIO. Eller stated
that he"would take" the CIO.
On the following morning, Superintendent Houser and Foreman Wood in-
spected Edler's work and told him that he was "doing O. K " however, later
that morning, about 11 a in Houser came to Edler and told him that he had
bad news; that Edler's work was satisfactory, but that the respondent had ex-
ceeded its manpower ceiling by his huing, and that it was thetefoie necessary
to let hint go Edler then went to the office of the United States Employment
Service. Several days later Sherff, director of that office, telephoned Julian
Walker, the respondent's factory manager, and informed him that it was not
necessary to discharge Edler since he had already been hired, and stated that
the respondent could retain him on its pay roll. Walker replied that the news-
papers were "full of stories" to the effect that a drive would be instituted to
secure enforcement of manpower ceilings, and that the respondent proposed to
ask for a raise in its ceiling.
About a week alter his discharge, according to Edler's testimony, USES re-
Jerre,l him l.c^ck to the plant, where he was told that lie could not be given a job.
Edler asked if it was because of his work He was told that he could not be
given a reason.
The respondent asserts that Eller was discharged solely because his employ-
ment exceeded the manpower ceiling According to the testimony of Walker, the
respondent's employment ceiling was 125, and Edler's hiring placed the respondent's
employment at 126 Walker further testified that this fact was not discovered
until after Eller was hired and that he thereupon informed Houser that Eller
would have to be terminated Superintendent Houser testified to the same effect.
Walker further testified that following his conversation with Sherff, USES direc-
tor, the respondent applied for an increase in its ceiling which was granted several
weeks later Edict's woil: was admittedly satisfactory According to Walker's
testimony this was the only instance in which the respondent exceeded the man-
power ceiling Although its ceiling was subsequently raised, the respondent did
not iecall Eller.
It is not disputed that Edler's hiring was in excess of the respondent's employ-
ment ceilings The respondent's explanation as to his discharge is plausible.
Somewhat less understandable, however, is the respondent's insistence upon adher-
ing to the letter of the law at a time when, as its request for a raise in the ceil-
ing indicated, the respondent was in need of additional help, and when it had
assurances fioin Sheiff that it could retain Eller on its pay roll On the other
hand, the respondent's asserted determination to comply with the law can hardly
be characterized as a pretext on the available evidence. Houser would scarcely
have hired Edler if membership in the CIO militated against employment. Even
if Houser felt that he had to hire Edler after the disclosure of Edler's affiliation,
and await a pretext for discharging him, he would hardly have praised his work
on the following morning Finally, even if it be assumed that Edler's statement
to Hubbard to, the eltect that he "would take" the CIO constituted ground for
inferring that the respondent would discharge him for that reason, there is no
755420-48-vol 74-55
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence from which it can be concluded that the statement came to the attention
of Walker or Houser.
There is therefore no substantial basis for discrediting the testimony of Walker
and Houser. It is found that the evidence does not support the allegation that
Edler was discharged because of his activities on behalf of the CIO, and it will
therefore be recommended that the complaint be dismissed in that respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in con-
nection with the operations of the respondent described in Section I, above,
insofar as they constitute unfair labor practices, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices it will be recommended that the respondent cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Association was unlawfully assisted by the respond-
ent. In order to restore the status quo and to free the employees front this re-
straint upon their freedom in self-organization, it will be recommended that the
respondent withdraw and withhold all recognition from the Association as the
representative of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until it is certified by the Board
as such representative. Since it has been found that the respondent's contract
with the Association is invalid, and since the existence of the contract perpetrates
the effects of the respondent's unlawful assistance, it will be further recommend-
ed that the respondent cease and desist from giving effect to its conti act of June
2, 1945, with the Association, or to any other contract it may have made with the
Association. Nothing in this recommendation, however, shall be deemed to re-
quire the respondent to vary or abandon those wage, hour, and other substantive
teatures of its relations with the employees themselves which the respondent may
have established in performance of the contract as extended, renewed, modified,
supplemented, or superseded 18
It has also been found that the respondent discriminated in regard to the hire
and tenure of employment of Michael Ford and Glenn Jeffries, thereby encourag-
ing membership in the Association and discouraging membership in the CIO. It
will therefore be recommended that the iespondent offer Ford and Jeffries im-
mediate and full reinstatement to their tormer or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges. It will
also be recommended that the respondent make whole Ford and Jeffries for any
loss of pay they may have suffered by reason of the discrimination against them
by payment to each of them of a sum of money equal to the amount which he
would normally have earned as wages during the period from the date of the
discharge to the date of the respondent's offer of reinstatement, less his net earn-
ings during that period 1B
18 Matter of Scullin Steel Company, 65 N. L R B 1294.
19 As to the definition of the term "net earnings", see Crossett Lumber Co , 8 N. L R. B.
440, and Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
THE FAIRFIELD ENGINEERING COMPANY 849
Because of the respondent's unlawful conduct, and the underlying attitude
of opposition to the purposes of the Act revealed thereby, the undersigned is con-
vinced that the unfair labor practices found are closely related to the other un-
fair labor practices proscribed by the Act, and that a danger of their commission
in the future is to be anticipated from the respondent's conduct in the past The
preventive purpose of the Act may be frustrated unless the remedial order is co-
extensive with the threat. In order therefore to make effective the interdepend-
ent guarantees of Section 7, to prevent a recurrence of unfair labor practices and
thereby minimize industrial strife which burdens and obstructs commerce, and
thus to effectuate the policies of the Act, the undersigned will also recommend
that the respondent cease and desist from interfering with, restraining, or coerc-
ing its employees in any other manner, in the exercise of the rights guaranteed
by the Act. .
Upon the basis of the foregoing findings of fact, and the entire record in the
case, the undersigned makes the following :
CoxcLusioxs OF LAW
1 United Steelworkers of America , CIO. and Fairfield Employees Association
are labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Mi-
chael Fold and Glenn Jeffries , thereby encouraging membership in the Associa-
tion and discouraging membership in the CIO , the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section S (3) 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 discriminated in regard to the hire and tenure of
employment of John Edler
6. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (2) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Fairfield Engineering Com-
pany, Marion, Ohio, its officers, agents, successors, and assigns shall:
1 Cease and desist from :
(a) Discouiaging membership in United Steel `Yorkers of America, CIO, or
any other labor organization, or encouraging membership in Fairfield Employees
Association, or any other labor organization, by discharging or refusing to re-
instate any of its employees, or in any other manner discriminating in regard
to then hire or tenure of employment, or any term or condition of their em-
ployment ;
(b) Recognizing Fairfield Employees Association, or any successor thereto,
as the representative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of pay, hours
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment, or other conditions of employment, unless and until said or-
ganization shall have been certified by the Board as such representative ;
(c) Giving effect to its contract of June 2, 1945, with Fairfield Employees
Association, or to any extension, renewal, or modification thereof, or to any other
contract or agreement between the respondent and said labor organization, un
leas and until said organization shall have been certified by the Board as the
representative of its employees ;
(d) In any other manner interferring with, restraining, oi• coercing its em-
ployees in the exercise of the right to self-organization, to form labor otganiza-
tions, to join or assist United Steelworkers of America, CIO, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
.ar other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Fairfield Employees Asso-
ciation, or any successor thereto, as the representative of its employees for the
purpose of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment,
unless and until said organization shall have been certified by the Board as such
representative;
(b) Offer to Michael Ford and Glenn Jeffries immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges ;
(c) Make whole Michael Ford and Glenn Jeffries for any loss of pay which
they may have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the amount which
lie normally would have earned as wages from the date of the respondent's dis-
crunination against him to the date of the respondent's offer of reinstatement,
less his net earnings during said period :
(d) Post at its plant in Marion, Ohio, copies of the notice attached hereto
marked "Appendix A" Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (GO) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced or covered by any other material ;
(e) Notify the Regional Director for the Eighth Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that the complaint, insofar as it alleges that the
respondent has discriminated in regard to the hire and tenure of employment
of John Edler, and that it has engaged in unfair labor practices within the
meaning of Section 8 (2) of the Act, be dismissed.
As provided in Section 203 39 of the Rules and Regulations of the National Labor
Relations Board, Series 4, effective September 11, 1946, any party or counsel for
the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 20338 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, 1). C., an
original and four copies of a statement in writing setting forth such exceptions
THE FAIRFIELD ENGINEERING COMPANY 851
to the Intermediate Report or to any other part of the record or proceeding (in-
eluding rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof, and any party or coun-
sel for the Board may, within the same period, file an original and four copies
of a brief in support of the Intermediate Report. Immediately upon the filing
of such statement of exceptions and/or briefs, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203 65.
As further provided in said Section 203 39, should any party desire permission
to argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of service of the order transferring the
case to the Board.
CHARLES W. SCHNEIDER,
'T'rial Examiner.
Dated September 19, 1946
APPENDIX A
NOTICE TO AIL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE HEREBY WITHDRAW RECOGNITION from Fairfield Employees associa-
tion as the representative of any of our employees for the purpose
of dealing with us concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment, and we will
withhold recognition from it or any successor thereto for any of the above
purposes, unless and until it shall have been certified by the Board as the
representative of our employees
WE WILL OFFER to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights or privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the dis-
crimination against them.
Michael Ford
Glenn Jeffries
WE WILL NOT GIVE EFFECT to our contract of June 2, 1945, with
Fairfied Employees Association, or to any extension, renewal, or modification
thereof, or to any other contract or agreement with said labor organization,
unless and until said organization shall have been certified by the Board as
the representative of our employees
'WE WILL NOT in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist United Steelworkers of America, CIO, or any
other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or proteclion. All'our eni-
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees are free to become or remain members of the United Steelworkers
of America , CIO, or any other labor organization . We will not discriminate
in regard to hire or tenure of employment or any term or condition of
employment against any employee , because of membership in or activity
on behalf of any such labor organization.
THE FAIRFIELD ENGINEERING COMPANY,
Employer.
Dated ---------------------- By ------------------------------------------
(Representative ) ( Title)
NoTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 00 days from the date hereof , and must not
be altered , defaced, or covered by any other material.