Western Cartridge Co.

National Labor Relations Board - Board Decisions

Sep 16, 1942

44 N.L.R.B. 1 (N.L.R.B. 1942)

In the Matter Of WESTERN CARTRIDGE Col%IPANY , A CORPORATION and
AMERICAN FEDERATION or LABOR AND ITS AFFILIATED ORGANIZATIONS
Case No. C-2123-Decided September 16, 1942
Jurisdiction : arms and ammunition manufacturing industry.
Unfair Labor Practices
Interteience, Retraent, and Coercion: urging and persuading employees to sign
individual contracts of employment containing restrictions on. their right
to engage in concerted activity ; anti-union remarks ; statements urging
supervisory employees to withdraw from charging union not permissive in
view of employer's lack of neutrality.
Company-Dominated Union: background: hostility toward affiliated unions;
history of dealing with employees directly through individual employment
contracts-indicia: formed shortly after appearance of an affiliated union
and with knowledge of employer; accepted limited recognition under "basic
agreement" which endorsed individual contracts and made them paramount
to collective bargaining ; failure to obtain written working agreement for,
almost 4 years and not until after charging union came into the plant-
support: statements indicating employer's approval of "inside" union and
hostility toward charging union ; urging "inside" union's representative to
become active ; permitting "inside" union to take credit for wage increases
unilaterally given employees by employer ; attempt to persuade "inside"
union to intervene in a representation proceeding for purpose of opposing
charging union's unit claim ; employer's continued recognition of, and bar-
gaining with, "inside" union as exclusive representative for all employees,
notwithstanding Board's certification of charging union as representative of
some employees in the plant.
Discrimination: charges of, sustained as to one employee, and dismissed as to
seven others.
Remedial Orders: disestablishment of company-dominated union; abrogation
of contracts; reinstatement and back pay.
Mr. Jack G. Evans, for the Board.
Bryan, Williams, Cave and McPheeters, by Mr. R. H. McRoberts,
of St. Louis, Mo., for the respondent. i
Mr. Fred Olds, of East Alton, Ill., and Mr. R. A. Wilson, of Wash-
ington,'D. C., for the A. F. of L.
Mr. Wayne Ely, of St. Louis, Mo., for the Independent.
Mr. Gilbert V. Rosenberg, of counsel to the Board..
44 N. L. R. B., No. 1. _
487408-42-r of 44`--1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge filed on November 19, 1941,1 by
American Federation of Labor and affiliated organizations,2 herein
called the A. F. of L., the National Labor Relations Board, herein
called the Board, by the Regional Director for the Fourteenth Region
(St. Louis, Missouri), issued its complaint dated November 19, 1941,
against Western Cartridge Company, East Alton, Illinois, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and of notice of hearing thereon
were duly served upon the respondent and the A. F. of L., and upon
Western Cartridge Employees Independent Union, herein called the
Independent, a labor organization alleged in the complaint to be
dominated by the respondent.
With respect to the unfair labor practices, the complaint alleged in
substance: (1) that the respondent, on or about June 4, 1937, insti-
gated the formation of the Independent, and that it thereafter' domi-
nated and interfered with the administration of the Independent,
contributed financial and other support to it, and recognized the
Independent as the exclusive bargaining representative of the
respondent's employees in written contracts dated August 12, 1937,
and June 4, 1941; (2) that the respondent discouraged membership
in the A. F. of L. and encouraged membership in the Independent
by discharging Richard Alain, James Oglesby, Francis Bunzy, Bur-
dette Williams, Raymond Clark, and William Elliott, by trans-
ferring Arthur Williamson, and by thereafter refusing to reinstate
any of them except Runzy; and (3) that, by the foregoing acts, by
attempting to instigate the formation of Western Cartridge -Em-
ployees Association, herein called the Association, by attempting to
i The original charge was filed on April 29 , 1941, and an amended charge was filed on '
June 21, 1941
2 As hereinafter appears , Chemical Workers Local Union No 22 574, and International
Molders and Foundry Woikeis Union of North America, Local 333, are the two affiliates
of the American Federation of Labor having membership among the respondent's employees.
Whcie these organizations are hereinafter mentioned separately , they are referred to,
respectively, as Local 22574 and Local 333
WESTERN CARTRIDGE COMPANY 3
dissuade' its employees from becoming or remaining members of the,
A. F. of L., by, questioning its employees concerning their union
affiliation, by soliciting and obtaining from its employees since July,
5, 1935, individual employment contracts including, among other
things, limitations upon their right to strike and to, engage in other
concerted activities, and by other acts, the respondent interfered
wih, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The respondent filed an answer on December 8, 1941, in which it
admitted certain allegations with respect to its business, but denied
that it had engaged in the unfair labor practices, alleged in the
complaint. On the same day, the Independent filed an answer ad-
mitting that it had entered into certain contracts with the respondent„
but denying that it was dominated by the respondent.
Pursuant to notice, a hearing was held at East Alton, Illinois,
from December 8, 1941, to January 9, 1942, before Horace A. Ruckel,.,
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the respondent, the Independent, and the A. F. of L.
were represented at and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the opening of the hearing, the Trial Examiner denied a motion
by the respondent to make the complaint more definite by specifying
the names of the organizations .affiliated with the A. F. of L., mem-
bership in which the respondent was alleged to have discouraged.
During the course of the hearing, the Trial Examiner granted a
motion by counsel for the Board to amend the complaint to include
the name of Jack Otten as an employee alleged to have been dis-
crinminatorily transferred, and a motion by the respondent to amend
its' answer to include a denial of this additional allegation. At the
conclusion of the Board's case, the respondent moved to dismiss the
allegations of the complaint, separately and in their entirety. The
Trial Examiner denied the motion. The Trial Examiner granted,
without objection, motions by counsel, for the board 'to amend the
complaint by making certain formal corrections therein and, at the
close of the hearing, to conform the complaint to the proof as to
formal natters. Counsel for the Board also moved to strike certain
testimony adduced by the respondent with respect to the production
record of Burdette Williams, on the ground that the respondent had
failed to give counsel for the Board an opportunity to examine the
respondent's written records bearing,on the matter. The Trial Ex-
aminer reserved decision on this motion, which he later denied in
the Intermediate Report. During the course of the. hearing, the
Trial Examiner made a number of rulings on . other motions and on
4- DECISIONS OF NATIONAL LABOR'. RELATIONS,., BOARD
the admissibility of evidence. The Board has reviewed all the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. -
On February 25, 1942, after submission of briefs by the A. F. of L.,
the Independent, and the respondent, the Trial Examiner filed his
Intermediate Report, copies of which were served upon all the parties.
He found 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 Act.
He recommended that the respondent cease and desist from its unfair
labor practices, that it disestablish and withdraw all recognition from
the Independent, and that it reinstate Elliott and Williams with back
pay. With respect to the allegations of discrimination against the
six other- named employees, the Trial Examiner recommended that
the complaint be dismissed.
On April 7, 1942, the respondent and the Independent filed ex-
ceptions to the Intermediate Report, and briefs in support of their
exceptions. On the same day, the respondent and the Independent
also filed .with the Board a joint motion to reopen the record for the
purpose of receiving certain additional evidence of benefits allegedly
gained by employees of the respondent as the "result of negotiations"
between the Independent and the respondent. 'No valid reason was
given for the failure to adduce such evidence at the hearing. More-
over, this proffered evidence, if adduced, would not affect our findings
and conclusions hereinafter set forth. The motion to reopen the
record is hereby denied.
'Pursuant to notice and at the request of the respondent and the
Independent, a hearing was held before the Board at Washington,
D. C., on June 11, 1942, for the purpose of oral argument. The
respondent, the Independent, and the A. F. of L. were represented
by counsel and• participated in the argument.
The Board has considered the respondent's and the Independent's
exceptions to the Intermediate Report and the briefs in support
thereof and, insofar as the exceptions are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
-without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Western Cartridge Company, a Delaware corporation, operates,
a plant at East Alton, Illinois, where it is engaged in the manu-
facture, sale, and distribution of small arms ammunition, explosives,
-traps, targets, and brass articles of various kinds. ` The raw materials
WESTERN CARTRIDGE COMPANY
5
used by the respondent include copper, led, zinc, steel, paper, tin, lime-
stone, lumber, coal, and chemicals. During 1940, the respondent
purchased for use at its East Alton plant raw -materials valued at
approximately $9,000,000, of which approximately-50 percent. were
received from sources outside the State of Illinois. During the same
period, the respondent.sold products manufactured at its East Alton
plant valued at approximately $20,000,000, of which approximately
50 percent were shipped to destinations outside the State of Illinois.
On or about July 8, 1941, the respondent formed the East Alton
Manufacturing Company, a Maryland corporation, all the capital
stock of which is owned by the respondent. The officers and directors
of the respondent direct the labor relations policies of this corporation
and also serve as its officers and directors. The respondent leased to
this corporation certain real estate, buildings, improvements, and
equipment formerly used by the respondent in the manufacture of
smokeless powder, explosives, and other products.-' The respondent
and the East Alton Manufacturing Company entered into an agree-
ment under which the latter agreed to carry out the obligations of the
respondent with respect to certain construction work and the manu-
facture of smokeless powder and other products.
11. THE ORGANIZATIONS INVOLVED
Chemical Workers Local Union No. 22574 is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees in the smokeless powder division.
International Molders and Foundry Workers Union of North Amer-
ica, Local 333, is a labor organization affiliated with the American
Federation of Labor, admitting to membership certain employees of
the respondent on the western side.
Western Cartridge Employees Independent Union is an unaffiliated
labor organization, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; domination and support of,
and interference with, the Independent
1. BACKGROUND, THE INDIVIDUAL CONTRACTS
During the summer of 1933, a group of the respondent's employees,
who had previously been employed as coal miners in southern [llinois,
s That part of the plant leased to this corporation is herein referred to as the smokeless
powder division and is geographically separated from the other departments In the plant,
herein referred to as the western side, by a river.
6 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
began to discuss the question of union organization at the plant. J. M.
Olin, the respondent's vice, president, testified in: effect that, because
of the "agitation" and the "uproar" created in,the plant by this group
of employees, he addressed a mass meeting of the respondent's em-
ployees on the subject of unions and suggested that an employees' repre-
sentation plan be formed, similar to the Works Council Plan in effect
at the respondent's plant at New Haven, Connecticut,' but that the
suggestion was not adopted by the employees.
At about the same time in 1933 that the question of union organi-
zation was being discussed in the plant by the employees and the
management, the respondent revived its former practice, which had
been in effect from 1915 to about 1921, of having its employees sign
individual contracts of employmcnt.s According to George Dawson,
the respondent's former personnel manager and industrial counselor,
the rivival of the individual 'contracts in 1933 was due, in part, to
the "industrial unrest' throughout the country" resulting from
"unionization." Olin testified that the individual contracts were re-
introduced in 1933 because of the respondent's desire "to get a little
closer to [its] employees" and thereby stabilize employment, to en-
courage savings by its employees, and to counteract "propaganda"
directed to the employees with respect to the National Industrial
Recovery Act.6 'Olin stated at 'the hearing that he "had never been
an enthusiast on N. R. A. or anything of its ilk."
* In Matter of Western Cartridge Company, Winchester Repeating Arms Company Divi-
sion and United Electrical, Radio & Machine Workers of America, C 1 0, 43 N . L. R. B'
179, the respondent consented to the disestablishment of the Plan at the New Haven
plant.
5 In each contract the respondent agrees to employ the employee for a period of 6
months ( or, in renewal contracts , 1 year) "at such time and for such periods as in the
discretion of the company its business may require," and to pay the "prevailing" wage
with time and a half for overtime. The respondent reseiies "the right at any time during
the period of the contract to reduce the number of employees by lay-offs and that if
Employee is so laid , off,he shall not be entitled, to any wages _• duruig the period of any such
lay off " The employee agrees to "devote his entire time and best energies to the interests
bf ' the company," with the understanding that , should lie fail to do so, or " should his
efficiency become impaired or should lie refuse to perform his duties as provided herein,"
the contract is to become null and void , and the employee is to be subject to immediate
suspension or dismissal "at the option of the company " The contract sets up a bonus
system, "subject to the express understanding that such bonus should be paid only in
the event Employee faithfully fulfills all his obligations " . The contract recites that the
employee recognizes that "a minimum labor turnover " is desirable , and provides that
"in consideration of the compliance by the Employee with the covenants upon his part
above set out, the Company agrees to pay the Employee, in addition to the total earnings
paid to him" as wages, a certain percentage thereot as a bonus, but that if the employee
violates any of the provisions of the contract the bonus shall be forfeited. A further
clause provides that , in the event of disruption or material curtailment of operations of
the respondent ' by reason of "fire, flood , strike, business , depression , changing economic
condition, acts of Cod or 'other causes beyond the control of the Company," the contract
may be terminated by the respondent , in which case the employee 's bonus is to be paid
to him only if the termination is "for any reason not due to the fault of the Employee."
jltalies supplied I
e Section 7 (a) of that Act in , effect guaranteed employees the right to form and join
labor organizations without interference by employers . . , , i.•
WESTERN CARTRIDGE COMPANY -7
Since 1933, individual contracts have continuously been employed
by the respondent in dealing with its employees, and at the time of
the hearing herein substantially all of its employees, had signed indi-
vidual- contracts.' The record shows that, after each employee had
served for a probationary period of 3 months, he was informed by
his foreman or by a notice on his time card to go to the respondent's
contract office for a personal interview concerning an individual em-
ployment contract.8 Employees thus reporting, either singly or in
groups, were told of the benefits to be had under the individual con-
tracts and were urged to execute such contracts, although they were
also informed that it was optional with them to do so.9 When an
employee's contract 'was about to expire, hey was notified by the re-
spondent to report at the contract office to sign a renewal contract.
An employee who failed to go to the office for either his original or
renewal contract was repeatedly notified until be did so.
It is clear that the form of individual employment contract thus
urged by the respondent on its employees was and is, by its terms, an
interference with the employees' right to engage in concerted activity
as guaranteed in the Act. In effect, the contract purported to give
the respondent the right to terminate the employment of any em-
ployee who participated in a strike or any other concerted activity
regarded as interfering with his "faithfully" fulfilling "all his obli-
gations," and to deprive any such employee of his bonus. A premium
was thus placed by the respondent on an employee's refusing to engage
in concerted activities with his fellow employees, and the full weight
of the respondent's approval was used in persuadin employees indi-
vidually to accept this restriction of their rights under the Act.
Although acceptance of the contracts was theoretically optional with
the employees, the record shows, as the Trial Examiner has found,
that all employees were expected'to sign contracts and that in fact all
but three or four did so. We are convinced that the respondent's
reintroduction of the individual contracts in 1933 and its persistent
efforts thereafter to have employees sign them were due to a realiza-
tion on its part of the restrictive effect of the contracts on the organi-
zational activities of the employees and to a desire to accomplish pre-
cisely that restrictive effect. The contracts were reintroduced by the
respondent in 1933 when the question of union organization was being
actively discussed by employees in the plant' following the passage of
7 S It. Irish , assistant to the plant manager, testified that the respondent bad individual
contracts with all but four employees . However, as set forth below , the individual con-
tracts, between the respondent and employees in its smokeless powder division were, by
agreeent with Local 22574 , abandoned in 1941.
8 As a matter of convenience , casting department employees were interviewed in the
casting shop office
8 An employees ' handbook published and distributed by the respondent also explains the
benefits of the individual contracts and invites employees to obtain them.,
8- DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
the National Industrial Recovery Act with its guarantee of employee
freedom in union activities. This was preceded by or coupled with
a suggestion by Vice-President Olin to the employees that they form
an employee representation plan similar to the plan in effect at the re-
spondent's New Haven plant. We believe that it was the purpose of
both; and that the effect of the contracts since their reintroduction
has been, to forestall union activity among the, respondent's employees
and to create a permanent barrier to union organization among them 1°
We find, as did the Trial Examiner, that the respondent, by urg-
ing and persuading its employees to -sign the individual contracts
of employment, has since July 5, 1935, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Formation and recognition of the Independent
From 1933 to 1937 the relations between the respondent and its
employees were governed by the above-mentioned individual con-
tracts of employment and there was no union -organization among
the respondent's employees. In the spring of 1937, the Congress of
.Industrial Organizations herein called the C. I. O., began an organiz-
ing campaign, at the respondent's plant. Handbills were distributed
and employees were solicited for membership. After several C. I. O.
organizing meetings, had been held and some of the employees' had
signed membership applications, steps were taken at the plant to
oppose the C. I. O. by forming among the employees a labor organ-
ization of "their own," which later became known as the Independent.
Charles Taylor, a machinist; was the principal organizer and pro-
ponent of the Independent. He discussed plans for this new organ-
ization with employees Mitchell and 'Ferguson, and they decided that,
before other employees were solicited to join, the respondent's
"attitude" should be ascertained. Taylor called on General Manager
Bassett, told him` of the plan to form an organization whose member-
ship would be restricted to the respondent's employees, and asked
10 Cf. National Labor Relations Board v National Licorice Co, 309 U. S 350 , aff'g as
mod, 104 F. ( 2d) 655 (C. C A. 2), enf'g as mod , Matter of National Licorice Company
and Bakery and Confectionery Workers International Union of America , Local Union 405,
Greater New York and Vicinity, 7 N L R B 537 ; Matter of Superior Tanning Company
and National Leather Workers Association. Local 4.3, 14 N L R B 942 , enf d as mod.,
National Labor Relations Board v Superior Tanning Co , 117 F. ( 2d) 881 ( C. C. A. 7),
cert. denied , 313 U S . 559; Matte of Norman H Stone, etc and International Printing
Pressmen and Assistants ' Union, etc, 33 N L. R B. 1014 , enf'd as mod , National Labor
Relations ,Board v Stone; 125 F (2d) 752 (C. C A 7) , Matter of Brown -McLaren Manu-
facturing Company and Hamburg Manufacturing Company and Brown-McLaren Branch of
Local 174 , International Union, United Automobile Workers of America , a C. 1. O . affiliate,
34 N L R B 984 ; Matter of Killefer Manufacturing Corporation and Steel Workers
Organizing Committee. 22 N L R B 484; Matter of Trojan Powder Company and-United
Mine Workers of America, etc, 41 N L R . B. 1308
WESTERN CARTRIDGE COMPANY
,9
him if there was any objection by the respondent to the idea. Bassett
replied that the respondent had no objection to such an organization
as long as its members "stayed within their rights" and did not solicit
on the respondent's time and property. Taylor immediately began
to solicit members. On the day following Taylors talk with Bassett,
Meyers, superintendent of the machine shop and Taylor's supervisor,
told the latter that if he was "fooling around with a union" he could
consider himself discharged. That evening Taylor told General Man-
ager Bassett of this incident, and was in turn told by Bassett that
Meyers' statement was "unfortunate" and that Taylor should con-
tinue on his job "as though nothing happened."
On June 4, 1937, Taylor and some 8 other employees of the respond-
ent met at the office of an attorney, selected temporary officers for the
Independent, and discussed plans for perfecting its organization. At
about the same time, a membership drive was begun in the plant and
employees were regularly solicited during working hours. On. June
25, Otis Sullivan, the temporary secretary-treasurer of the Inde-
pendent," personally delivered to Vice-President Olin a letter in
which the Independent claimed to represent a majority of the re-
spondent's employees and stated that, upon the selection of permanent
officers, it would make "demands" on the respondent. , The Inde-
pendent's majority claim was discussed with Olin at that time and,
according to Olin, Sullivan stated that it had membership applica-
tions from 2,200 employees. Olin asked "if there was anything in
the union [the Independent] which . . . would nullify or modify
or change'the status" of the individual contracts of employment, and
Sullivan replied that he did not know. Olin made it clear to Sullivan
that, before recognizing the Independent as a 'bargaining representa-
tive, the respondent would have to be assured that the Independent's
constitution and bylaws would not affect the "individual contractual
relationship" existing between the respondent and the "bulk" of its
employees. On the following day, June 26, Olin wrote to the
respondent's attorney, George H. Will informed him of the
Independent's letter of June 25 and of the discussion with Sullivan,
and sought his advice with respect to a possible conflict between the'
existing "individual contractual relationship" and collective bargain-
ing with the Independent. Olin further stated in the letter that:
[The respondent's] position must necessarily be that it is our
desire to protect and to continue the constitutional rights of
the employee as an individual, and the Company as a corporate
identity to enter into a contract such as new exists, and that
"After organization of the Independent had been perfected, Sullivan was made its per-
manent secretary-treasurer and the respondent granted him a year's leave of absence
without pay , to enable him to devote all his time to the Independent 's affairs.
io DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we must ask that this contract be recognized and that all acts
take due recognition of the existence of that contract, and that
if any action is taken which tends to modify, alter, or amend
the individual relationship or nature of the contract then that
change should be reflected in the individual contracts. The deter-
mination must be made eventually as to -how far we can go in
collective bargaining and other relationship with [the Independ-
ent] and at the same preserve the legal rights and position' under
the individual contract . . .
On July 23, 1937, following the adoption of a constitution 12 and
-the election of permanent officers and committeemen, the Independent
wrote the respondent, listing the names of its officers and representa-
tives and expressing its desire to conclude a written working agree-
ment. On July 26 the Independent submitted to the respondent a
proposed working agreement covering wages, hours, and other con-
ditions of employment, and requested a conference to discuss this
agreement. On August 10, 1937, the respondent met with represen-
tati^,es of the Independent, but, instead of discussing the terns of
the working agreement previously submitted by the Independent, the
respondent's attorney, Williams, presented a so-called basic agree-
ivient,, which he had prepared in cooperation with the Independent's
attorney. This agreement provided for recognition of the Independ-
ent as representative of the respondent's employees with respect to all
matters not covered by the individual contracts and for continuation
of the individual contract system.13 The Independent's executive
'3
The constitution as adopted provided among other things, as follows
All employees were eligible to membership excepting those employed in a supervisory or
administrative capacity;' meetings of the Independent were to be held upon call of the
executive board ; an executive board consisting of one member from each of six divisions
of the respondent's plant was to be the governing body of the organization Repiesenta-
tives on the executive board were required to have been in the respondent's'employ for
2 years immediately prior to election Officeis of the Independent were to be elected by
the executive board, and the board, assisted by an advisory committee, was to be respon-
sible for conducting all negotiations with the respondent All agreements of general
importance pertaining to wages or hours of employment negotiated by the executive board
were requned to be refereed to the general membership for ratification by secret ballot.
The six divisions of tI•e plant were broken down into various departments, from each
of which a representative was to be selected for the advisory committee Members of
the executive board were to be elected for a term of 2 years The board was to meet
once a month or upon call of its chairman or of any three members thereof It was pro-
vided that a majority vote of the membership was necessaiy for the adoption of the
constitution and a two-thirds vote for the adoption of amendments thereto
13 This agreement reads as'follows
THE BASIC AGREEMENT
The following is an agreement and compact made at East Alton, Illinois, on,the 12th
day of August 1087, between Westein Cartridge Company (referred to herein as the
Company) and Western Cartridge Employees Independent Union (rcfeiied to beiein as
the Union)
1 It appearing that the majority of the Company's employees are members of the
Union, the Union is iecognized, as the sole bargaining agent under the 'National Labor
WESTERN CARTRIDGE COMPANY 11
board at first rejected this basic agreement but, upon'being told by
the Independent's attorney, who had conferred with the respondent's
attorney, that the respondent would not agree to any of the Inde-
pendent's demands until the basic agreement was accepted, the board
changed its decision. Thereupon, at a meeting with the respondent
on August 12. 1937, the Independent's representatives signed the
basic agreement. The agreement was never thereafter submitted to
the membership of the Independent for ratification.
From 1937 to 1941, the relationship between the respondent and
the Independent was governed essentially by the basic agreement
and the individual contracts, and the respondent rejected several
requests by the Independent for a written working agreement.
During this period, the respondent and the Independent held a
number of conferences to consider demands by the Independent
relating to wages, hours, and other terms of employment, and reached
agreement on many of them, but not until after the A. F. of L.
appeared at The plant, as described below, were any of these agree-
ments embodied in a written contract.
3. Encouragement of the Independent and discouragement of the
A. F. of L.
The record shows that at all times since its inception in 1937, the
Independent, without objection by the respondent, has engaged in
organizational - activities on company time and property. During
}vorking hours and sometimes in the presence of foremen, employees
were solicited, dues of 25 cents a month were collected, and petitions for
departmental representatives were circulated in the plant. The re-
spondent supplied and honored wage assignments used by the Inde-
pendent in having dues of members checked off by the respondent.
Relations Act, %Nith respect to all matters not covered by the contracts of employment
between the Company and those of its employees who have made them Both the Com-
pany and its employees have valuable rights under said contracts of employment which
they desire to preserve, and said contracts are recognized as valid and binding upon
both parties thereto It is contemplated that , from time to time, demands and grievances
will be made under this agreement with respect to matters not covered by-the said con-
tracts of employment Such demands and grievances may be initiated either by the Com-
pany or the Union. Negotiations with respect to such matters will be conducted by the
accredited representatives of the Company and the Union.
2 Neither the Company nor the Union admit or assert any right to change said con-
tracts of employment without the consent of both parties thereto. However, the Com-
pany may, from time to time, discuss with the Union matters which may involve changes
in or modifications of said contracts of employment If, from time to time, as a result
of any such discussions , both the Company and the Union shall agree that any change
or modification of the said contracts of employment shall be recommended to the employees
holding such contracts , then the Company agrees to join with all employees who shall
accept such recommendations in making such changes or modifications.
3. This agreement shall be in force for one, year from this date and thereafter until
terminated bi• written notice given thirty ,days in-advanca, by-either party to the other.
12 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
The respondent also furnished the Independent each month with the
names of employees laid off, transferred, or rehired. ,
Francis Bunzy, a former member of the Independent who later
joined Local 22574 and became its president, testified that, during the
Independent's organizing campaign in 1937, he told his foreman,
William, Robertson, that the employees needed an "outside" union,
and that Robertson replied, "Well, you would get farther with the
Company with an independent union." At the hearing Robertson
did not specifically deny having made this remark, but testified gen-
erally that he never discussed unions with employees and that he did
not recall making the remark in question. The statement attributed,
to Robertson by Bunzy is_consistent with the general pattern of events
disclosed by the record. Moreover, with respect to other disputed
testimony discussed below, we find Bunzy to be a credible witness, as
did the Trial,Examiner. We credit his testimony in this instance,
and find that Robertson made the statement in question.
Despite the Independent's continuous membership campaign at the
plant, its membership began to decline in the latter part of 1940. The
executive committee of the Independent discussed ways and means
of maintaining its membership and, failing to find a solution to the
problem, decided "to see if there was some way that [the respondent]
could help us out, to bring our membership up." Accordingly, in No-
vember of that year the executive committee met with General Man-
ager Bassett and George Dawson, then the respondent's industrial
counselor, presented its declining membership problem, and asked for
the respondent's assistance. Bassett made no definite commitment,
but said that he would keep the matter in mind.'4
During the latter part of December 1940, Fred Olds, an organizer
for the A. F. of L., arrived in East Alton and made his first contact
with employees of the respondent. At about the same time, Augen-
baugh and Chapman, chairman of the Independent, were requested
by Bassett to meet with him, Dawson, and Personnel Manager Had-
dleton. Bassett presided at the meeting and reopened discussion of
the Independent's prior request for assistance. According to Augen-
baugh's testimony, Bassett announced that the granting of a 2 per-
cent wage bonus under the individual contracts of employment had
been decided upon by the respondent's board of directors, and stated
tllat,.if a notice was posted in the plant giving the Independent credit
for this increase, it would "bring the [Independent] membership up,
showing that the union was trying to do something for members in
the union. .." Bassett's suggestion was accepted and, according
to Augenbaugh, on the following day Chapman and Dawson jointly
14 These findings are based on the undenied testimony of Orville Augenbaugb, who was
then the Independent's secretary-treasurer.
WESTERN CARTRIDGE COMPANY, 13
drafted such a notice and posted it on the respondent's bulletin board.
Bassett did not testify concerning, this incident. Dawson testified
that he did not recall any statement by the respondent's representatives
that the bonus increase be attributed to-the Independent, but admitted
that he verfied the contents of a notice concerning this bonus increase
which Chapman had prepared. He also testified generally that, on
occasions when the Independent had previously requested assistance,
the respondent had always denied these requests. The fact that this
bonus increase was given shortly after the Independent's request for
assistance and at about the same time that the A. F. of L. appeared
on the scene lends credence to Augenbaugh's testimony. We accept
his testimony, as did the Trial Examiner, and we find that the re-
spondent assisted and encouraged the Independent by arranging for
it to take credit for obtaining this bonus increase.
In the middle of January 1941, the A. F. 'of L. began to intensify
its membership campaign among the respondent's employees. A
mass meeting of employees was held on January 31 and a substantial
number signed membership applications. On February 5, the Amer-
ican Federation of Labor issued a charter creating Local 22574 and,
giving it jurisdiction over employees in the smokeless powder divi-
sion of the respondent. -Following the election of permanent officers,
Local 22574 met with the respondent on March 13, 1941, requested
recognition as the exclusive bargaining representative for all chem-
ical workers in the smokeless powder division, and offered to submit
application cards to support its claim of majority representation.
The respondent took this request under advisement, but later denied
it. The respondent took the position that the smokeless powder
division was not an appropriate unit and that Local 22574 would
have to be certified by the Board as the representative for the em-
ployees in question. Accordingly, on March 25, 1941, Local 22574
filed a petition for investigation and certification of representati ves
with the Board's Regional Office in St. Louis, alleging that all em-
ployees in the respondent's smokeless powder division, with certain
exceptions, constituted an appropriate unit.
Shortly after Local 22574 had demanded bargaining rights for
employees in the smokeless powder division, and when it appeared
likely that the A. F. of L. would extend its campaign to the western
side, which it subsequently did, as pointed out below, the respondent
took further steps to strengthen and support the Independent. On
March 18, 1941, the respondent granted the, Independent its first
written working agreements. One was made for the casting shop
and another for the brass mill. 'T'hese agreements were in part in-
tended to remove the widespread dissatisfaction which admittedly
.existed among the employees in those departments, and therefore
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided for improvements in rates of pay and other working con-
ditions. At about the same time, the respondent began to bring
pressure to bear on William Elliott, then casting shop representa-
tive for the Independent, to support the Independent. Elliott testi-
fied that on a number of occasions McCauley, a personnel supervisor,
urged him to "get behind" the Independent, to which McCauley
referred as a "company union," and "try to make something out of it."
McCauley was not called as a witness, and we credit Elliott's testi-
mony, as did the Trial Examiner. Elliott also testified that he had
a number of conversations with P. W. Day, superintendent of the
brass mill, concerning the Independent, one of which was as follows :
... Day talked to me about the Independent Union and he asked
me-he told-he said that he didn't see any reason why the Inde-
pendent Union couldn't be made to work. He says, "Now, Bill,
you are the only man back there can put the union inside or out."
Now he said, It is up to you, and I am planning on you to
help me."
I said, "I would not ask a man to join any union;"-I said
"They don't especially like that union for different reasons. They
have been told it is a company union."
Well, he said, you can do it. You are the only nian out there
that can do it."
"Well," I said, "Maybe I am but I can't do it. I won't do it." I
said, . . . "When it comes to the question of putting the Union
over," I says, "you can count me out." - '
Day testified at the hearing but did not deny this testimony, which
we credit, as did the Trial Examiner.
Later, when it appeared to Day that Elliott, the Independent's de-
partment representative, was not energetic enough in presenting
grievances for employees, Day warned Elliott to become more active
as an' Independent representative,, or to resign and let someone- else
take his place. Elliott then withdrew from the Independent and
joined Local 333; shortly thereafter he was discharged. Day ad-
mitted at the hearing that Elliott's failure to handle grievances as
a representative of the Independent was a factor in his discharge,
because it "tended to indicate his attitude toward the company." 15
The respondent's encouragement of the Independent on the west-
ern side was accompanied by its discouragement of Local 22574 in
the smokeless powder division, for which the Independent was the
recognized bargaining representative. The record shows that, during
the first 6 months of 1941, and especially after Local 22574 had de-
11 We hereinafter find that Elliott was discriminatorily discharged because of his with-
drawal flour the Independent and his activities on behalf of Local 333.
WESTERN CARTRIDGE COMPANY 15
,manded bargaining rights, the respondent repeatedly manifested its
'hostility to the A. F. of L. According to the testimony of, Bunzy,
president of Local 22574, in April or May of 1941 he was called to
the office,of Thomas Wortz, then superintendent of the smokeless
powder division, and had a conversation with him about unions.
Wortz, who had not previously known Bunzy, opened the conversa-
tion by saying, "I expected a rough sort of a fellow, being mixed up
with a union like you are," and then said that Bunzy could "go
places" with the respondent if he would "make [himself] right with
them" offering. to send Bunzy to 'a training school. Wortz further
stated that the employees should come to the respondent as a "com-
mittee" and have a "union of [their] own," instead of "going over
to East St. Louis and getting a pot-bellied racketeer" to represent
them. He finally claimed that Local 22574 was "no good" and was
composed of "a bunch of guys" who were "bosses and wouldn't work"
and who lived off the employees' wages paid out in union dues. At the
hearing Wortz did not recall making the statements attributed to him
by Bunzy, but admitted having a conversation with Bunzy in which he
asked Bunzy, as president of°Local 22574, to put a stop to the union
agitation in the plant, and then discussed the respondent's library
facilities and its policy of sending employees to a foreman's school.
Wortz's testimony thus corroborates in certain respects the testimony
of Bunzy. We find, as did the Trial Examiner, that Wortz made
the statements attributed to him by Bunzy.
William Gent, an assistant foreman who belonged to Local 22574,
testified that on one occasion, when he was wearing a union button,
Wortz remarked that it was not a "good idea" for a foreman to wear
a union button. Gent also testified that on another occasion Wortz
asked him to sign a statennent withdrawing from Local 22574, and
stated that Local 22574 "was not going to get in" the smokeless
powder division and that the respondent could do more for Gent
than the officers of Local 22574. Wortz denied at the hearing having
made these statements to Gent, but admitted finding under his of-
fice door Gent's written resignation from Local 22574. Here, again,
Wortz's testimony tends to corroborate in part the testimony denied
by him, and the conduct he denies is consistent with the pattern of
everits.disclosed by the record. We find, as did the Trial Examiner,
that Wortz made the statements in question to Gent.
Ellis McPherson, an hourly paid foreman who was at one time
a member of the Independent but later joined Local 22574, testified
that on one occasion Wortz pointed to McPherson's A. F. of L. but-
ton and said, "I can't tell you not to belong-and I can't tell you how
to vote," 16 but that, if McPherson "went along" with the respond-
"This referred to the Board election at the plant on May 26, 1941.
16 DECISIONS OF NATIONAL LABOR RELATION 'S BOARD
ent, he would be given a wage increase. Wortz denied making this
statement. McPherson's testimony is consistent with other testimony
as to anti-union statements made by Wortz, as found above. We
do not credit Wortz's denial, but find, as did the Trial Examiner,
that Wortz made the statement attributed to him by 1v1cPherson.
Wortz's opposition to the A. F. of L. and Local 22574 was re-
flected in the attitude of some of his assistants in the smokeless
powder division. Charles Womack, a member of Local 22574, testi-
fied that Pivoda, a truck foreman, told him to "lay low on union
talk" because the respondent had spotters in the plant. According to
employee Robert Carroll, Pivoda told him that Wortz had instructed
'Pivoda to "break up" the strong union feeling of two new truck
drivers. Pivoda testified that he did not recall making the state-
ment attributed to him by Carroll and that he had not received'any
such instructions' from Wortz, but lie admitted telling Womack to
"keep his nose clean" because he did not want to lose Womack. We
'credit the' testimony of Womack and Carroll, as did the Trial
E xaminer.
McPherson, further testfied that in April 1941 Foreman Arnold
urged him to withdraw from Local 22574 and stated that the re-
spondent did not want foremen to belong to that union. He also
testified to a conversation with Foreman Monical in which the latter
asked McPherson whether the respondent or the A. F. of L. "could
do the most" for him. Monical and Arnold denied the "statements
attributed to them by McPherson, but Arnold admitted having had
several conversations with McPherson about the A. F. of L., the sub-
stance of which he was unable to recall at the hearing. We have found
McPherson to be a credible witness, as did the Trial Examiner, and
we credit his testimony in this instances' '
According to employee Wildt, Foreman Canhan told him that
Canhan had a brother-in-law who had gone on strike for 6 months,
and asked Wildt if he "wanted to be like that." Canhan then added
1'MIc1'heison, like (,ent, is apparently a minor supervisory eniplo ) ce We have held
that an employer may properly iequue supervisory employees such as foremen to withdraw
from a union which admits to membership both supervisory and ordinary employees, or
to choose between losing then supai visoi y positions and withdrawing from the union.
.hatter of The She,leni-Williams Company and Cliernical lVoideis Union No 22215,
dmeruan Federation of Labor, 37 N L R B 260, enf ' d, National Labor Relations Board
v Sherwin -lvillianrs Company, decided August 3 1942, ( C C A 3 ) , Mattel of General
Motor Sales Corporation, etc and International Uition, United Automobile Woihers of
d niei ica , Local 216 , C 1 0 , 34 N I. R B 1052 In those cases , however, the employers'
action was taken as pact of an attempt to maintain strict neutiality and to avoid' any
imputation of interference with the organizational activities of non -superirsory employees
In the percent proceeding , there is no showing that the respondent 's interference with
the union activities of )JcPherson and Gent was put of any attempt on they.respondent's
,pant to maintain neutrality On the contrary , w e are convinced by the evidence that
the respondent was concerned with their union activities only because of its opposition
to Local 22574 Cf Matter of Golden Tintey Mining Company and International Union
of Mine, Mill, and Smelter lVoileis , Local No 410, 34 N. L R B 760
WESTERN CARTRIDGE COMPANY 17
that it meant more to Wildt to have an individual contract than to
belong to a union ,and lose the contract. Canhan did not testify,
and we credit the testimony of Wildt, as did the Trial Examiner.
Elden Weishaupt testified that Foreman Schindel told him, in sub-
stance, that he would "get ahead around here" if he would vote down
the A. F. of L., and that the A. F. of L. had caused trouble in many
places. Schindel then referred to the case of a knitting mill which
had moved from a nearby town to another part of the country to avoid
a union, adding: "You know something like that could happen here."
Schindel admitted,'and we find, that Weishaupt's testimony is sub-
4tantially correct.
From April 21 to 24, 1941, the Board conducted a'hearing on the
petition filed by Local 22574 on March 25, 1941. At some time prior
to the hearing, the Independent wrote the Board's Regional Office
waiving any claim to represent employees in the smokeless powder
area. Nevertheless, the respondent urged the Independent's executive
board to repudiate this letter and to intervene in the representation
proceeding. Lowell Jones, an Independent representative, was told
by Dawson, the respondent's industrial counselor, that the latter
"realized that we have not accomplished everything that we think
we should have," but that there were "great possibilities there to make
a go" of the Independent. Dawson also urged upon Jones that the
Independent send a representative to the hearing on the following
day. Hamilton, a personnel supervisor, also told Jones that repre-
sentatives of the Independent were "supposed" to be at the hearing.
Jones testified that the Independent decided not to intervene in the
iepresentation case because it had few members in the smokeless pow-
der division. °
On May 15, 1941, the Board issued a Decision and Direction of
Election in the representation case, finding the respondent 's smokeless
powder division to be an appropriate unit.'° On May 26 an election
was conducted by the Board at the respondent's plant, and Local 22574
polled a majority vote among the elployees in the smokeless powder
division. Notwithstanding the result of the election, the respondent
continued to.deduct Independent membership dues, froin the wages
of employees in the smokeless powder division, and on June 4 the
respondent and the, Independent signed a working agreement covering
all the respondent's employees, including those in the-smokeless powder
division. This agreement was to remain in effect until November 15,
'l942, and thereafter from year to year, in the absence of notice to
modify given by either party 60 days prior to the expiration of any
"Matter of Western Cartridge Company and Chemical TPor7, ers Local Union No 22574,
A. F L, 31 N L R B 888.
487498-4 2-vol 44-2
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
annual period. It confirmed the binding effect of the basic agreement
and included provisions relating to wages, hours, and other working
conditions. By the terms of the contract, vacations with pay were
limited to those employees "who have a written Employment Contract
with the Employer." At no time during the negotiations leading up
to this agreement did the respondent request, or did the Independent
furnish, any evidence as to the Independent's majority status.
On June 10, 1941, Local 22574 wrote to the respondent requesting
a meeting to discuss the terms of an agreement. On June 13, the same
day on which the Board certified Local 22574 as the exclusive bargain-
ing representative for employees in the smokeless powder division, the
respondent replied that it would not accord recognition to Local 22574
because it believed the Board's decision of May 15 erroneous in finding
that the employees in the smokeless powder division constituted an
appropriate unit. The respondent also stated that it had a collective
bargaining contract and a working agreement with the Independent,
which the respondent considered binding, and expiessed its intention
of seeking judicial review of the Board's decision. Shortly thereafter,
at the request of the A. F. of L., the United States Department of Labor
attempted, without success, to settle the dispute between the respondent
and Local 22574. The dispute was then certified to the National De-
fense Mediation Board. Largely as a result of the efforts of that
Board, the respondent, on or about July 8, 19,41, incorporated the East
Alton Manufacturing Company, which took over the smokeless powder
division.19 On August 2, 1941, a contract was entered into between that
corporation and Local 22574 for a period of 1 year, automatically re-
newing for yearly periods thereafter unless notice of termination or
modification is given by either party 30 days prior to the expiration
of any annual period. Under the contract, Local 22574 was recognized
as the exclusive representative of all employees in the smokeless pow-
der division, with certain exceptions, and a grievance procedure and
limited seniority rules were established. The contract also contained
a maintenance-of-membership clause, and provided that the•individual
contracts of employment then existing between the respondent and
approximately 423 employees in the smokeless powder division should
not be transferred to or assumed by the East Alton Manufacturing
Company, nor should the latter corporation offer to any employee an
individual contract or enforce any existing one. On September 29,
1941, this contract was supplemented ' by an agreement relating ,to
wages and hours of employment.
19 The facts relating to the management and operations of this corporation are set forth
in Section II, above, of this decision.
WESTERN t :CARTRIDGE; "COMPANY - 19
. In the meantime, beginning in April or May 1941, the A. F. of L.
had extended its organizational activities to the western side of the
respondent's'plant. On August 5, 1941, a charter was granted to Local
333, which admits to membership employees in the casting shop, the
brass mill, and other departments on the western side. At about the
same time, the Independent revived its campaign on the western side
and openly solicited membership applications and wage assignments
'on company property and time. In August the Independent paid $50
to one of its departmental representatives as a bonus for obtaining 200
new members, a number of whom were solicited during working hours:
' 4. Conclusions
In 1933, prior to the effective date of the Act, the respondent suc-
cessfully smothered the first efforts of its employees to seek self-
organization.20 As a substitute, the respondent suggested the forma-
tion of an employees representation plan and revived its former prac-
tice of having employees sign individual contracts of employment.
While the suggestion to form an "inside" union was not adopted by
the employees, the respondent has at all times since 1933, including
the period following the effective date of the Act, made it clear to
its employees that all of them were expected to sign the individual,
employment contracts. We have found that these contracts are vio-
lative„of the Act because they in effect,restrict and limit, the right of
the employees to engage in concerted activity. We have also found
that the respondent used the contracts to impede and discourage self-
organization among its employees.
For approximately 4 years the contracts produced the desired re-
sult; no substantial effort at self-organization among the respondent's
employees took place until the spring of.1937, when the,C. I. -O. began
its-activity. Immediately thereafter, organization of the Independent
was begun to counteract this activity of the C. I. O. The proposed
organization was first discussed with General Manager Bassett, and
it is clear that his approval of the idea spurred the formation of the
Independent. Similarly, Foreman Robertson's statement to Bunzy
that he would get further with the Independent than with an outside
union and Bassett's assurance to Taylor that the latter could- safely
continue his activities on'behalf of the Independent made it clear that
the respondent was in ,favor-of the Independent and welcomed its
formation. That the respondent favored the Independent because it
'would serve as a means of combating organization by an outside union
20 Although this took place prior to the effective date of the Act and therefore does not
constitute an unfair labor practice within the meaning of the Act. it is relevant and
material to our consideration of the respondent's subsequent activities. N. L R B v.
Pennsylvania Greyhound Lines, 303 U. S 261 ; N. L. R. B. v. The Falk Corp., 308 U . S. 453.
I
20 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
and perpetuating the individual contract system is made apparent
by subsequent events.
Shortly after its formation , the Independent , claiming to represent
a majority of the employees at the plant , requested recognition and
a'written working agreement . The respondent was entirely willing
to, and did , grant recognition of a kind to the Independent , but'sum-
marily rejected the proposal for a working agreement and substituted
its own ideas on bargaining in the form of "the so -called basic agree-
ment. This agreement recognized the Independent , but only "with
respect to all matters not covered by the contracts of employment be-
tween the company and those of its employees who have them ." Thus,
bargaining , with the Independent was made subject to the terms of the
individual contracts , which we have found to be illegal , and was re-
stricted to matters not covered by these contracts . This was not col-
lective bargaining within the meaning of the Act. A bargaining rep-
resentative selected by a majority of the employees in an appropriate
unit is , under Section 9 (a) of the Act, the exclusive representative of
all the employees in the unit with respect to all matters falling within
the scope of collective bargaining, and the Act does not permit an
employer to extend recognition limited to anything less than that.
As we have recently had occasion to point out:
When once a majority of the employees have exercised their
right to choose a representative for concerted bargaining in an
appropriate unit, the employer 's statutory obligation to deal ex-
clusively with such representative as io all terms and conditions
of employment is immediate and unconditional and its perform-
ance may not be deferred or qualified by reason 'of any individual
bargain which he may have made with his employees."
The respondent and 'the Independent contend that , in the negotia-
tions leading up to the'basic agreement, it was their mutual clesire
that "nothing be done which might in any way impair the force
and effect of the individual contractsbut it is clear from the record
that the respondent made acceptance of the individual contracts
a condition precedent to bargaining with the Independent . The con-
dition was merely accepted by the Independent , and its acquiescence
demonstrated its complete subservience to the respondent and its
inability to act as a true bargaining representative for the employees.
Without obtaining any agreement as to wages , hours or other working
conditions of advantage to the employees , the Independent in effect
relinquished the right to strike , endorsed the individual contracts,
and acknowledged that the contracts were paramount 'to'the guar-
21 Matter of J. I. Case Company and International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, C 1 0 , 42 N L It B 85
WESTERN CARTRIDGE COMPANY 21
antee of collective bargaining contained in the Act. We do not be-
lieve that a bona fide labor organization, not dominated by the re-
spondent, would thus have joined with the respondent in attempting
to deprive its employees of their rights under the Act. We are sup-
ported in this 'conclusion by the fact that Local 22574, in the first
contract it obtained after being recognized, provided that the indi-
vidual contracts with employees in the smokeless powder division be
eliminated. The Independent, on the other hand, in its contract of
June 4, 1941, with the respondent, confirmed and continued the so-
called basic agreement and made certain benefits available only to
employees holding individual employment contracts.
Further indicating the respondent's domination of the Independent
is the fact that the respondent failed for almost 4 years to conclude
a formal working agreement with the Independent covering wages,
hours, and conditions of employment. It was only after the A. F.
of L. began its organizing activities in 1941 that the respondent
decided to enter into such an agreement.
Having accorded recognition to the Independent, an organization
acceptable to it, the respondent gave the Independent the support
it believed necessary to protect the Independent's position. In the
latter part of December 1940,.when the Independent's membership was
declining and the A. F. of L. was making plans to organize the plant,
the respondent arranged for the Independent's receiving credit for
obtaining a bonus increase which the respondent had unilaterally de-
cided to give employees having individual contracts.22 In the early
part,of 1941, after the A. F. of L.'s campaign had made substantial
progress in the smokeless powder division, the respondent sought to
prevent the spread of its influence to the western side by giving the
Independent working agreements covering the brass mill and the
casting shop. At about the same time,- Elliott, the Independent's
departmental representative in the casting shop, was urged by Per-
sonnel Supervisor McCauley and-Superintendent Day to strengthen
the Independent and either to become more active as the Independent's
representative or to resign and let someone else take his place. As
hereinafter found, Elliott was subsequently discharged because he
withdrew from the Independent and joined Local 333.
While the respondent was assisting the Independent, it discouraged
employees in the smokeless powder division who were desirous of being
represented by Local,22574, by displaying its hostility toward that
union, by disparaging its leadership, by urging the withdrawal of its
adherents, and by advising employees to vote against Local 22574
21 Cf. Matter of, The Western Union Telegraph Company and American Communieattons
Association , 17 N. L. R. B 34 , enf'd as mod , Western Union Telegraph Co. V. N. L. R B,
113 F. ( 2d) 992 (C. C. A. 2).
22 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
in the' Board' election ' of May ' 26, 1941. When Local 22574 first
requested recognition in March 1941, the respondent demanded that it
first be certified by the Board. In the subsequent representation
proceeding, the respondent urged the Independent to intervene, not-
withstanding the fact that the Independent had previously disclaimed
any' interest therein. After the Board had certified Local 22574 as
the bargaining' representative of the employees in the smokeless
powder division, the respondent refused to honor the Board's certi-
fication and to accord Local 22574 the recognition to which it was
entitled under the Act, until induced to do so by the National Defense
Mediation Board. In addition, even though the employees in the
smokeless powder division had selected Local 22574, as their repre-
sentative in the Board election of May 26, the respondent continued
to recognize the Independent as the representative of those employees,
and on June 4, 1941, without requesting or receiving any evidence as
to the Independent's representative status, concluded a working agree-
ment with the Independent covering all employees, including those`
in the smokeless powder division. We are convinced, and we find,
that by its entire course of conduct, as described above, the respondent
encouraged, supported, and maintained the Independent in order to
impede and, if possible, prevent genuine self-organization of the
respondent's employees. Such an organization is incapable of func-
tioning as a true collective bargaining representative.
We find, as did the Trial Examiner, that the respondent, by the
foregoing acts, dominated and interfered with the formation and
administration of the 'Independent, and contributed support to it, a'nd
thereby interfered with, restrained, and coerced its employees. in the
exercise of the rights guaranteed in Section 7 of the Act.23
B. The discriminatory discharge of William Elliott
William Elliott first came to work for the respondent in 1925. His
last regular period of employment was from November 1930 to July
25, 1941, when he was discharged. During the last several months
of his employment he worked as a metal caster in the casting shop.
Elliott joined the C. I. 0. in 1937 when it began to organize at
the respondent's plant, but shortly thereafter, upon formation of
the Independent, he joined the Independent, and in 1941 he became
the Independent's representative for the casting shop. As we have
23 The complaint also alleges that the respondent attempted to instigate the formation
of western Cartridge Employees Association The record shows that in May 1941 some a
of the respondent ' s nonsupervisory employees attempted, without success, to form the
Association. . The Trial Examiner has found that the respondent , did not instigate its
formation , and no exception has been taken to this finding. we have considered the
record, and we agree and find that the evidence does not support this allegation of the
complaint.
WESTERN CARTRIDGE COMPANY 23
found-above; ill-the spring,of.1941, while Elliott was the'Independent's
departmental representative for the casting shop, Personnel Super-
visor McCauley and Superintendent Day urged him to make the
Independent a success and to become more active as a representative.
In the early part of July 1941, Elliott resigned from the Independent
and canceled his wage assignment authorizing the respondent'to check
off dues for the Independent. Shortly thereafter he joined Local 333
and, at a meeting of that organization on the evening of July 23, 1941,
he was made its temporary financial secretary. On the following
morning, Elliott told Foremen Andrus and Grossman, who already
knew the names of some of the officers of Local 333 elected on the
preceding evening, that he also had been elected to office in that
organization.
During the latter part of July 1941, the respondent announced a
proposed change in shift schedules for the casting shop and had the
foremen poll the employees on whether they favored the change.
When Elliott was asked his opinion of the proposal, he informed
Foreman Terry that he opposed the change. Shortly thereafter, on
the evening of July 22, Night Supervisor Carlton asked Elliott why
he opposed the change, and Elliott replied by saying that it would
cause the employees to lose money and by criticizing the manner of
taking the vote, stating that it should have been by secret ballot.
On the following rrlorning, July 23, Carlton reported to Superinten-
dent Day the statements made by Elliott concerning the proposed
change in shifts, as set forth above '21 and, stated, "I don't see how
you can run a cast shop with a man talking that way all the tune."
Day then decided to take some disciplinary action against Elliott, and
sent for him. Elliott reported to Day's office on July 25 and was
discharged. According to Day, he told Elliott that he was being dis-
charged because of his continued complaints about working condi-
tions and because of his criticism of the management. Elliott testi-
fied that, when he asked why he was being discharged, Day brought
up the subject of the Independent, and said, "You stuck me in the
back, and let me down," which Elliott understood had reference
to his refusal to support the Independent, as Day had previously
urged him to do. Day denied at the hearing the statement attributed
to him by Elliott, but admitted telling Elliott at the time of his
discharge that Elliott "was interfering [by] his conversations with
the people [employees] that the agreement with the Independent
Union was not bona fide . . ." Moreover, Day also admitted
at the hearing that Elliott's failure, as the Independent's representa-
I In addition , Day testified that , according to Carlton 's report to him, Elliott bad also'
said that the respondent was continuing its policy of trying to "rob" the employees ,
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive, to present grievances of employees, was a factor contributing
to his discharge because it tended to indicate his attitude toward
the company. We find, as did the Trial Examiner, that Day made
the statements attributed to him by Elliott.
Immediately after his discharge by Day, Elliott spoke to Frank
Shotters, the respondent's general superintendent, and accused the
respondent of discharging him because of his membership in Local
333. Shotters then denied knowing that Elliott was a member of
Local 333 or that his membership was the reason for his discharge,
but said that Elliott was discharged for making "insinuating" re-
marks about the respondent. This led to a discussion of Elliott's
claim that the respondent owed him money and was not dealing fairly
with its employees. Finally. Shotters told Elliott that there was
nothing the respondent could do for him, and the conversation ended.
On the same day, Elliott's wife, who was employed in the brass
mill office, was also disc'ba, `bed. Frank Kratschmer, office manager,
i estified that he discharged Mrs. Elliott because he did not think she
was "doing her work." The record shows, however, that the decision
to discharge Mrs. Elliott, was made by Day, not Kratschmer. Day
testified that she was discharged because he suspected her of supplying
her husband with figures on casting shop production which he was
using to support demands for wage increases. Mrs. Elliott was re-
instated with back pay about a week later in another department of
the plant, at substantially equivalent work. The reinstatement was
made on orders from Shotters and after an interview with the Regional
Director for the Board.
Concerning the reason for Elliott's discharge, the respondent con-
tended at the hearing, although it did not allege in its answer, that
Elliott's criticism of the respondent's policies created dissatisfaction
among the employees in the casting shop and impaired their efficiency.
Day testified that, in June 1941 production in the casting shop was
lower per man than it had ever been, that the quality of the met.'d pro-
duced was poor, and that, in his opinion and in the opinion of the
foremen, this condition was due to the general indifference of the em-
ployees and to their failure to carry out instructions. All of this
they attributed to the dissatisfaction created in the shop by the critical
statements of Elliott and Burdette Williams, who worked the same
shift as Elliott and whose alleged discriminatory discharge is discussed
below. We are not convinced, nor was the Trial Examiner, by Day's
testimony or by the testimony of other witnesses for the respondent
who also described conditions in the casting shop, that Elliott was,
responsible for slowing up production or for the poor quality of the
work' in the casting shop. Elliott's own work is admitted by the re-
spondent to have been satisfactory. No showing is made in the record
that Elliott's attitude toward and remarks about the respondent and
WESTERN CARTRIDGE COMPANY 25
working conditions were in fact the cause of the other !employees'.
bad work, or that there was any reasonable basis for the respondent's
believing so. It is as reasonable, for example, to attribute the alleged
decrease in production to the widespread dissatisfaction with working
conditions which Day admitted existed, as to Elliott's attitude and
remarks.
The respondent also contended at the hearing, although it had
not alleged in its answer, that the immediate reason for Elliott's
discharge was his criticism of the respondent as to the change in
shift schedules, in his discussion with Carlton on July 22. As pointed
out above, the respondent expressly invited the opinions of its em-
ployees on the proposed change, and Elliott gave his in an outspoken
manner. Moreover,'the views expressed by Elliott on this occasion
were no different from those which he had previously made known to
the respondent. In February 1941, when Day first became superin-
tendent, he heard of Elliott's reputation as a critic of the manage-
ment and, because of it, asked Elliott why there was such dissatis-
faction among employees in the casting shop. Elliott replied that it
was due'to the attitude of the former superintendent, to the respond-
ent's failure to promote employees in accordance with seniority, and
to the fact that the employees had allegedly been cheated out of
money both under the bonus system and because of its abandonment.i
The record shows that for several years Elliott had entertained a
strong conviction that the respondent owed him, and other employees,
money as a result of the operation of the bonus system, and that on a
number of occasions he discussed his claim with and stated his posi-
tion to the former superintendent of the shop and Day. Apparently
the respondent did not attach any particular significance to his
position, at least while he was a member of the Independent.
Thus, it appears that the respondent knew and accepted Elliott
as an outspoken and critical employee and expressed no disapproval
of his critical attitude until he abandoned the Independent and be-
came active, in Local 333. This change of affiliation on his part was,
in our opinion, the reason for the respondent's belated decision that
Elliott's critical attitude warranted his discharge, despite his long
employment with the respondent and his satisfactory production
record.
Upon the entire record, and especially in view of the respondent's
unconvincing explanation of the discharge, Elliott's failure to heed
the respondent's requests to support the Independent, his subsequent
joining and becoming an officer of Local 333, Day's admission at the
hearing, that Elliott's ,failure, to act ; as. the Independent's representa-
11
zs Under the bonus system , employees received extra compensation based on the amount
of their production In the early part of 1939 the bonus was discontinued and employees
were put on a straight hourly basis.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
live was a factor motivating his discharge, and Day's remarks to
Elliott at the time of his discharge, we find that Elliott's critical
attitude was used by the respondent as a pretext to justify his dis-
charge. We furthe`r' find, as did the Trial Examiner, that Elliott was
discharged on July 25, 1941, because of his withdrawal from the
Independent and because of his membership in and activity on behalf
of Local 333. By thus discharging Elliott, the' respondent discrim-
inated with regard to his hire and tenure of employment, and thereby
discouraged membership in Local 333, and interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
C. The other discharges and transfers
Burdette Williams was employed by the respondent for approxi-
mately 7 years prior to'his discharge on July 24, 1941. On that day,
Superintendent Gerding of the casting shop told Williams that he
was being dismissed because of his low production and because of
his failure to obey instructions. Williams joined Local 333 in June
1941 and wore his, union button to woik. He was elected a trustee'
of Local 333 at the meeting of July 23,J1941, at which Elliott and
others were also elected to office.
Superintendent Day testified at the hearing that the decision to
discharge Williams was based on a number of complaints by his
superiors as to his work and his attitude. As a result of these com-
plaints, Day called a meetmg in his office on June 26, 1941, attended
by Superintendent Gerdir g, Foreman Andrus and Jones, and Per-
sonnel Managers Irish and Krinard. There is uncontradicted testi-
mony that at this meeting complaints were made that Williams re-
fused to take orders and was generally. defiant, that he did not operate
his furnace properly, that he refused to puddle or to skim his metal,
that he would not sign rejection slips for 'faulty metal, and that his
production was low. Andrus, Gerding, and Jones recommended at
this meeting that Williams be discharged immediately, but at 'the
suggestion of Irish it was decided to give Williams a chance to im-
prove his work. Jones then` told Williams that he would have to
obey instructions and increase his production, or he would be dis-
charged.
Day testified that, after Williams had been give this warning, he
checked Williams' production for July and found that it continued
to be low. According to Day, the respondent's records showed that
during the months of May, June, and July 1941, Williams' produc-
tion was the lowest of 'the four casters on his shift and that there was
a 12 percent disparity between his output and that of the highest
.producer.. The record indicates that this differential was abnormally
WESTERN CARTRIDGE COMPANY 27
-high. Day further testified that, after the meeting of June 26,
Gerding and Jones reported to him that there had been no improve-
ment in Williams' work. Gerding and Jones also testified at the
,hearing to Williams' failure to improve. -
Williams claimed at the hearing that a number of the complaints
against him were not well founded, but admitted that he hadtrefused,
for certain reasons, to sign rejection slips, and that on occasion he
had possibly failed to do some of his work. Williams also contended
that his low production record was due to the fact that he was
given an inexperienced helper. -
Under the circumstances, we are not convinced that the complaints
against Williams were unjustified or that they were not the reason
for his discharge. We find that the record does not sustain the
allegation in the complaint that Williams was discharged because of
his union membership and activity. We therefore sustain the
respondent's exceptions-to the TrialrExaminer's Intermediate-Report
insofar as he has found that Williams' discharge was discriminatory,
and we shall dismiss the complaint as to•Williams.
The complaint, as amended, also alleges that the respondent dis-
criminatorily discharged Richard Main, James Oglesby, Francis
Bunzy, and Raymond Clark, and that it discriminatorily transferred
Arthur Williamson and Jack Otten. In his Intermediate Report the
Trial Examiner, after discussing in detail the cases of the above-
named employees, found that the record did not establish that they
had been discriminated against because of their union activities and
.recommended that the complaint be dismissed as to them. The A. F.
of L. has filed no exceptions to the Trial Examiner's findings and
recommendation. We have considered the entire record and we agree
with the conclusions of the Trial Examiner in this respect. We
shall therefore dismiss the complaint, as to Richard, Main,, James
Oglesby, Francis Bunzy, Raymond Clark, Arthur Williamson, and
Jack Otten.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, A and B,
above, occurring in connection with the operations of the respondent
described in Section I above, have a'close, intimate, and substantial
'relation to trade, traffic, and commerce among the several States and
,tend to lead to labor disputes burdening and obstructing commerce
:and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take affirmative 'action designed -to, effectuate the policies of the -
Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Independent and contributed
support to it. In order to effectuate the policies of the Act and free
the employees of the respondent from such domination and inter-
ference,,and the effects thereof, which constitute. a continuing obstacle
to the exercise by the employees of the rights guaranteed them by the
Act, we shall order the respondent to withdraw all recognition from
the Independent as the representative of any of the respondent's
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and conditions of employment, and completely to disestablish it as
such representative. The agreements between the respondent and the
Independent are an integral part of the respondent's unfair labor
practices and prevent full enjoyment by the respondent's employees
of their rights under the Act. We shall, therefore, further order the
respondent to cease and desist from giving effect to any and all
outstanding agreements with the Independent, as well as to any-
c-xtension,, renewal, modification or supplement thereof. Nothing in
this Decision or in our Order shall be taken, however, to require the
respondent to vary those wage, hour, and 'other substantive features
of its relations with the employees, themselves, which the respondent
has established in the performance of such agreements.
We have also found that the individual contracts of employment
signed -by''the respondent's`'' employees , interfered with, restrained,
and coerced them in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. To free the respondent's employees from this
restraint and interference, we shall order the respondent to cease
giving effect to these contracts and to give written notice to each
employee who signed such a contract that the respondent will not
in any manner enforce or attempt to enforce the contract, that the
,employee is not required or expected to deal individually with the
respondent or to relinquish in any manner' his right to engage in
concerted activity because of the contract, and that discontinuance
of the contract is without prejudice to the assertion of any legal
rights the employee may have acquired under it. This part of our
Order will extend to any modification, continuation, extension, or
renewal of the individual contracts.
We have further found that'the respondent discriminatorily dis-
charged William Elliott on July 25, 1941. We shall, therefore,
order the respondent to offer Elliott immediate and full reinstate-
ment, to_ hi's former, or a substantially equivalent, position, 'without
WESTERN ' CARTRIDGE COMPANY 29
prejudice to his seniority and other rights and privileges, and to
make him whole for any loss of pay lie 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 discriminatory discharge,
July 25, 1941, to the date of the respondent's offer of reinstatement,
less his net earnings during such period.26
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Chemical Workers Local Union No. 22574, and International
Molders and Foundry Workers Union of North America, Local
No. 333, both affiliated with the American Federation of Labor, and
Western Cartridge Employees Independent Union, unaffiliated, are
labor organizations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Western Cartridge Employees Independent Union and
contributing' support to it, the respondent has engaged in and is
engaging in unfair' labor practices, within the meaning of Section
8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of William Elliott and -thereby- discouraging membership in
International Molders _and Foundry Workers Union of North Amer-
ica, Local No. 333, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section _7 of the Act, the
respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section '2 (6) and (7)
of the Act.
6. By discharging Burdette Williams, Richard Main, James
Oglesby, Francis Bunzy, and Raymond Clark, and by transferring
"By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which mould not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America , Lumber and Sawmill Workers Union , Local 2590 , 8 N L. R. B 440.
Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
N. L. R. B ., 311 U. S. 7.
30 DECISIONS OF'NATIONAL LABOR-RELATION' S BOARD
Arthur Williamson and Jack Otten, the . respondent did not engage
in unfair labor practices , within the meaning of the Act.
• ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Western Cartridge Company, East Alton, Illinois, and
its officers, agents, successors, and assigns, shall :
1. Cease and-desist from : -
(a) Giving effect to its individual contracts of employment with
employees or to any modification, continuation, extension, or renewal
thereof, and from requesting its employees to enter into any simi-,
lar contracts of employment;
(b) Dominating or interfering with the administration of West-
ern Cartridge Employees Independent Union or with the formation
or administration of any other labor organization of its employees,
and from contributing support to Western Cartridge Employees
Independent Union or to any other labor organization of its
employees ;
(c) - Recognizing Western Cartridge Employees Independent Unioi
as the representative of any of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
rates of pay, 'wages, hours of employment, or other conditions of
employment;
y (d) Giving effect to its agreements of August 12, 1937, March 18,
1941, and June 4, 1941, or to any other contracts or agreements
it may have entered into with Western Cartridge Employees Inde-
pendent Union in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment;
(e) Discouraging membership in International Molders and
Fdufidry Workers Union of-'North, America, Local, No. 333, affiliated
with the American Federation of Labor, or in any other labor organ-
ization of its employees, by discriminating in regard to the hire or
tenure of employment or any term or condition of employment of
any of its employees;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to,
form, join, or assist labor organizations, to bargain _ collectively
through representatives • of their -own choosing, and to engage in.'
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in &ction'7 of the Act.',
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
WESTERN CARTRIDGE COMPANY 31
(a) Withdraw all recognition from Western Cartridge Employees
Independent Union 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 of employment, or other
conditions of employment, wind' completely disestablish Western Cart-
ridge Employees Independent Union as such representative;
(b) Offer William Elliott 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 William Elliott for any loss of pay 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 he would
normally have earned as wages from July 25, 1941, the date of his
discharge, to the date of the respondent's offer of reinstatement, less
his net earnings during such period;
(d) Give separate written notice to each of its employees who has
signed an individual contract of employment, or any modification,
Continuation, extension, or renewal thereof, that the respondent will
not in any manner enforce or attempt to enforce the contract, that
the employee is not required or expected because of the contract to
deal individually with the respondent or to relinquish in any-manner
his right to engage in concerted activity, and that discontinuance of
the contract is without prejudice to the assertion of any legal rights
the employee may have acquired under it;
(e) Post 'immediately in conspicuous places throughout its plant
at East Alton, Illinois, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating : (1) that the respondent will not engage in the con-
duct from which it is ordered to cease and desist in paragraphs 1 (a)
to (f) of this Order; (2) that the respondent will take the affirmative
action set-forth in paragraphs 2 (a) to (d) of this Order; and (3)
that the respondent's employees are free to become or remain members
of Chemical Workers Local Union No. 22574, or International Mold-
ers and Foundry Workers Union of North America, Local No. 333,
both affiliated with the American Federation of Labor, and That the
respondent will not discriminate against any employee because of
membership in, or activity on behalf of, said organizations;
(f) Notify, the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith;
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent discriminated
against Burdette Williams, Richard Main, James Oglesby, Francis
Bunzy, Raymond Clark, Jack Otten, and Arthur Williamson.