Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1948

80 N.L.R.B. 945 (N.L.R.B. 1948)

In the Matter Of WESTINGHOUSE ELECTRIC CORPORATION and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL) Case No. 8-C4174.-Decided November 30, 1948 DECISION AND ORDER On April 14, 1948, Trial Examiner Isadore Greenberg 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 In- termediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications : 1. We agree with the finding of the Trial Examiner that the IBEW activities of Minch and Cunningham were confined to the period of the strike, viz between January 15, 1946, and May 13, 1946. We also agree with his finding that there is no question but that the period from March 31 to May 9 or 13, 1946, constituted an appropriate time for rival-union activities on the part of the Re- spondent's employees, because there was no contract in effect between the UE and the Respondent during that period. We should like to emphasize, however, that this latter period was one during which the Respondent's employees were free to engage in such activity wholly apart from any right to do so under the "Rutland Court doctrine." 2 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consist, Ing of the undersigned Board Members [ Houston, Reynolds, and Murdock]. Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587; 46 N . L. R. B 1040. 80 N. L. R. B., No. 143. 94ra 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The absence of any contract during this period requiring any type of union membership as a condition of employment rendered the pro- viso to Section 8 (3) of the Act, or any limitation thereon, wholly inoperative. Hence, the Respondent's employees had, during this period, the unlimited protection of Section 8 (3), with respect to any union activity that they engaged in.3 By way of distinction, how- ever, any rival-union activity of Minch and Cunningham from Janu- ary 15, 1946, to March 31, 1946, when the old contract between the UE and the Respondent, containing a maintenance-of -membership clause, was still in effect, was protected under the "Rutland Court doctrine," as it occurred towards the end of the contract period.4 2. Like the Trial Examiner, we find no merit to the Respondent's argument that the Board lacks jurisdiction to proceed in cases such as this, where the contracting union has not been made a party respondent to the proceeding. We should like to point out, however, that the specific basis therefor is the fact that the contracting union could not be charged with the commission of an unfair labor practice with respect to the events in this case, even assuming that its acts might constitute unfair labor practices under the amended Act, because at the time of such events the original Act did not recognize unfair labor practices by Ul l i of l S.5 3. Nor, like the Trial Examiner, and for the reasons stated by him, do we find efficacy in the Respondent's argument that we should refrain from ordering the Respondent to make Minch and Cunningham whole for any loss of pay they may have suffered by reason of their unlawful discharge because of the Respondent's alleged good faith in effecting the discharges. Inasmuch, however, as the record indicates that the discriminatory discharges effected by the Respondent resulted in only incidental interference with the rights guaranteed under Section 7 of the Act, and that there is no settled purpose on the part of the Respondent to defeat those rights generally ,6 we shall, as recommended by the Trial Examiner, omit the usual order that the Respondent cease and desist from the commission of any and all unfair labor practices proscribed by the Act, and confine our order to the cessation of the ,unfair labor practices found and any like or related conduct.' a Cf Matter of Colonic Fibre Company, Inc, 69 N. L. R. B. 589. 4 Matter of Rutland Court Owners, Inc ., supra. 5 Matter of General Electric X-Ray Corporation , 76 N. L . It. B 64. "As is evidenced particularly by the Respondent's resistance for a year to the UE's request for the discharges. 7 Matter of Geraldine Novelty Company , Inc., 74 N . L. R. B. 1503. WESTINGHOUSE ELECTRIC CORPORATION ORDER 947 Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Westinghouse Electric Corporation, Cleveland, Ohio, and its officers, agents, succes- sors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers (AFL), or any other labor organization of its employees, and encouraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., or any other labor organization of its employees, by discharging or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of its employees, unless obligated to do so by the terms of a valid contract then existing between the Respondent and a labor organization of its employees. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, and of the Act as amended : (a) Offer to Elmer Minch and George Cunningham immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole Elmer Minch and George Cunningham for any loss of pay they may have suffered by reason of the Respondent's dis- crimination against them by payment to each of them of a sum of money equal to the amount he would have earned as wages during the period from the date of his discharge from the Respondent's employ to the date of the Respondent's offer of reinstatement, less his net earnings during said period ; (c) Post immediately at its plant in Cleveland, Ohio, copies of the notice attached hereto, marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, after being signed by the Respondent's representative, shall be posted imme- diately by the Respondent upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; IIn the event that this order is enforced by a decree of a Court of Appeals there shall be inserted before the words "A Decision and Oider ," the words, "Decree of the United States Court of Appeals Enforcing." 817319-49-vol. 80-61 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. MEMBER REYNOLDS , concurring : Considering myself bound by the doctrine established in the Rutland Court 9 and subsequent cases, I reluctantly join my colleagues in this decision. However, my personal views in the matter, as expressed in dissenting opinions in two earlier cases,1° remain unchanged. It is the flagrant example which this case affords of the unconscionable dilemma of an employer in a Rutland Court situation that prompts me to a reiteration of such views. Here, the respondent for more than a year resisted the demands of the UE that Minch and Cunningham be discharged, prophetically envisioning a violation of the Act if it ac- quiesced. When faced with the subtle threats that negotiations with the UE for a new collective bargaining contract would "bog down," thereby imperilling by strike its own production and the jobs of some 65,000 employees, only then did the respondent acquiesce with meas- ured reluctance in the UE demands. It was this type of situation, here so pointedly demonstrated, that impelled the Congress to enact Section 10 (c) of the Act, as amended. I only regret that the occur- rence before August 22, 1947, of the events herein preclude the present application of this Section. 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 Relations Act, and of the Labor-Management Relations Act, 1947, we hereby notify our employees that : WE WILL NOT discourage membership in INTERNATIONAL BROTH- ERHOOD OF ELECTRICAL WORKERS, A. F. OF L., or any other labor organization of our employees, or encourage membership in UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. 0., or any other labor organization of our employees, by dis- charging or in any manner discriminating in regard to the hire or tenure of employment of any of our employees, unless we are obligated to do so by the terms of a valid contract then existing between ourselves and a labor organization of our employees. ° Matter of Rutland Court Owners, Inc., supra. 10 Matter of Lewis Meier & Company, 73 N. L. R. B . 520, 524; and Matter of E. L. Bruce, 75 N. L . R. B. 522, 529. WESTINGHOUSE ELECTRIC CORPORATION 949 WE WILL OFFER to Elmer Minch and George Cunningham full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights or privileges previously enjoyed, and make Elmer Minch and George Cunningham whole for any loss of pay suffered as a result of the discrimination. WESTINGHOUSE ELECTRIC CORPORATION, Dated---------- By ---------------------------------------- (Representative ) ( Title) 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 Ramey Donovan, Esq., for the General Counsel. Robert D. Blasier, Esq., and Job Taylor, II, Esq., both of Pittsburgh, Pa., for- the respondent. STATEMENT OF THE CASE Upon a charge and amended charge duly filed June 12, 1947, and December 30, 1947, respectively, by International Brotherhood of Electrical Workers (AFL), herein called the IBEW, the General Counsel of the National Labor Relations Board, herein called respectively the General Counsel' and the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued a complaint dated January 13, 1948, against Westinghouse Electric Corporation, 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) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and Section 8 (a) (1) and (3), and Section 2 (6) and (7) of the Labor Management Relations Act, 1947 (Public Law 101, 80th Congress, Chapter 120-First Session), herein called the Act as amended. With respect to the unfair labor practices, the complaint alleged in substance that the respondent, on or about June 5, 1947, discharged employees Elmer Minch- and George Cunningham, and has since refused to reinstate them, because of their membership in, and activity on behalf of the IBEW, and because they had been expelled from membership in United Electrical, Radio & Machine Workers of. America (CIO), herein called the UE, the respondent knowing or having reason to know that their expulsion from the UE was because of their membership in and activity on behalf of the IBEW, and that by such acts the respondent encouraged. membership in the UE and discouraged membership in the IBEW, all in violation of Section 8 (1) and (3) of the Act, and Section 8 (a) (1) and (3) of the Act as amended. Copies of the complaint and the notice of hearing thereon were duly served. upon the respondent, the IBEW, and the UE. In its answer, duly filed, the respondent denied that it had engaged in any unfair labor practices. As affirmative defenses the respondent pleaded: (1)i 'The General Counsel , and the attorney appearing as his representative at the hearing, will be referred to herein as the General Counsel. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The existence of a maintenance-of-membership contract between itself and the UE, and alleged that it had discharged Minch and Cunningham pursuant to the demand of that organization and representations made to the respondent by the UE that the two employees in question had been expelled from the UE in accordance with the provisions of that union's constitution; (2) that although the respondent at first refused to discharge Minch and Cunningham because it "had reason to believe" that such discharges "might be held to constitute an unfair labor practice," it finally acceded to the UE's demand for their discharge, after conducting an investigation into the facts of the case, and upon being con- vinced that it was obligated to comply with the request of the UE, and that such discharges would not be in violation of the Act; (3) that "no order may be made by the [Board] in this case which will effectuate the intent of Congress as expressed in the [Act or in the Act as amended], in the absence of a joinder herein, as [party] respondent of the [UE]"; and (4) that the complaint should be dismissed insofar as it alleges violations of Section 8 (1) and (3) of the Act, on the ground that said allegations are not supported by the amended charge, which refers solely to alleged unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act as amended. Pursuant to notice a hearing was held on February 2, 3, and 4, 1948, at Cleve- land, Ohio, before the undersigned Trial Examiner, duly appointed by the Chief Trial Examiner. The General Counsel and the respondent were presented by counsel. Neither the IBEW nor the UE appeared. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, was afforded all parties. At the opening of the hearing, counsel for the respondent presented a written motion, supported by a memorandum of law, to dismiss the complaint on the ground that since the UE was not joined in the instant proceeding as a party respondent, "no order may be made by the [Board] which will effectuate the intent of Congress as expressed in" the Act and the Act as amended. Upon denial of this motion by the undersigned, counsel for the respondent applied to the Board for permission to appeal directly to the Board from the said ruling. The Board denied permission for such a direct appeal. A motion of counsel for the respondent to amend Paragraph 4 of the respondent' s answer was granted by the undersigned without objection. At the close of the case for the General Counsel, counsel for the respondent made a number of motions to dismiss the com- plaint in whole and in part, which the undersigned denied. Upon renewal of these motions at the conclusion of the respondent's case, the undersigned reserved decision thereon. These motions are disposed of by the findings, conclusions, and recommendations hereinafter made. At the conclusion of the hearing the under- signed granted a motion of the General Counsel to conform the complaint to the proof with respect to such formal matters as dates and the spelling of names. Oral argument on the record was presented by the General Counsel and coun- sel for the respondent. The parties were advised that they might file briefs, as well as proposed findings of fact and conclusions of law with the undersigned. Briefs were submitted on behalf of the General Counsel and the respondent. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Pennsylvania corporation which owns, maintains, and operates plants in various States of the United States, including a plant at Cleve- WESTINGHOUSE ELECTRIC CORPORATION 951 land, Ohio. This proceeding concerns the activities of respondent at its afore- said Cleveland plant, in which it manufactures various types of electrical light- ing equipment. At the times herein material about 1200 employees were employed by the respondent in its Cleveland plant. In the conduct of its business the respondent causes, and has at all times herein material continuously caused, a large quantity of the raw materials used at its Cleveland plant to be purchased and transported in interstate commerce from and through states of the United States other than the State of Ohio, to its plant at Cleveland, Ohio. The respon- dent likewise ships and has continuously shipped a large quantity of its finished products from its Cleveland plant, in interstate commerce outside the State of Ohio. The respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, and United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, are labor organizations admitting to membership employees of the respondent at its plant in Cleveland, Ohio. III. THE UNFAIR LABOR PRACTICES A. The factual setting 1. The question of representation It is undisputed that on and prior to January 15, 1946, there was in effect be- tween the respondent and the UE, a collective bargaining agreement dated as of April 1, 1944, covering among other bargaining units, one composed of the pro- duction and maintenance employees of the respondent's Cleveland plant, for which the UE had been duly certified by the Board as exclusive bargaining repre- sentative.' On January 15, 1946, the respondent's employees represented by the UE, in- cluding those in the Cleveland plant, commenced a strike. On that date the respondent, pursuant to a renewal and termination clause in the contract between itself and the UE,3 gave the UE written notice of termination of the contract, effective as of midnight, March 31, 1946. On May 9, 1946, the respondent and the UE entered into a strike settlement agreement and a new collective bargaining contract, pursuant to which the strike actually ended on May 13, 1946, upon ratification, by the UE locals involved, of the aforesaid agreements on the latter date. Thus, during the period from midnight, March 31, 1946, when the 1944 contract was terminated, until either May 9 or May 13, 1946, there was no contract in effect between the UE and the respondent.' 3 The UE was certified as above described on January 3. 1944, in Case No. 8-R-1263. 3 This clause provided in substance that the agreement was to continue in effect for one year , and thereafter would renew itself automatically from year to year, provided that either party could terminate it at the end of any contract year by giving the other party written notice of such termination at least 30 days before the termination date. * It was stipulated that "contemporaneously with the signing of the 1946 National Agreement and the Strike Settlement Agreement by the respondent and the UE-CIO on May 9 , 1946, such parties signed a letter agreement confirming the understanding of such parties that neither of such agreements would be binding upon either party unless they were ratified by the National Westinghouse Conference Board of the UE-CIO and by 1952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both the contract which was terminated as of April 1, 1946, and that becom- ing effective after the strike on May 9 or 13, 1946, contained substantially identical maintenance-of-membership clauses reading as follows : All employees who are members of the Union in good standing in accord- ance with its Constitution and By-Laws, and all employees who become members shall, as a condition of employment, remain members of the Union in good standing during the life of this Agreement, and the Union will notify the Company promptly of failure of a member to remain in good standing.° Both contracts also contained provisions for "escape periods," from March 24 to March 31, inclusive, each year during the life of the respective agreements, during which members of the UE were permitted to withdraw from that Union by giving written notice to the Union and the respondent' On May 7, 1946, two days before the respondent and the UE entered into their 1946 collective bargaining contract, the respondent received a telegram from the IBEW reading : Action by employees of Westinghouse Electric and Manufacturing Com- pany demanding the International Brotherhood of Electrical Workers repre- sent them as bargaining agent force us to demand that you do not recognize any other organization as bargaining agent' On the same day the respondent replied by telephone to the above telegram, advising the IBEW that since the UE had been certified by the Board 8 as collec- tive bargaining representative of the employees in question, the respondent "could not recognize the IBEW as bargaining agent until such time as the N. L. R. B. so certified them." This telephone conversation was confirmed in a letter dated May 9, sent by the respondent to the IBEW, which in substance reiterated the aforesaid position of the respondent with respect to the demand of the IBEW . On May 7, also, the IBEW filed with the Board 's regional office the Locals of the UE-CIO involved ." The General Counsel contends that the "new con- tract ... was not an effective contract until May 13th, the date of ratification, and the parties so understood ." Counsel for the respondent argues that "there was a valid existing bargaining agreement in effect on and after May 9, 1946. .. It is not clear from the record whether the parties to the agreement intended the ratification thereof by the UE locals to operate as a condition subsequent , the fulfillment of which would validate it as of the date of its execution ( May 9 ), or as a condition precedent to its becoming effective and binding , in which case its effective date would be May 13, on which date the ratification occurred . In his view of the case the undersigned does not deem it material whether the contract in question became effective on May 9 or May 13. 5 The only difference between the maintenance -of-membership clauses in the two con- tracts was that the later one required the union to notify the Company promptly in writing of failure of a member to remain in good standing . The clause in the preceding contract did not contain the words, "in writing." 6 The earlier contract provided that an employee withdrawing from the UE during an escape period would lose his accrued seniority ; the later one provided that a with- drawing employee could take advantage of an escape period "without loss of employment status." The findings of fact heretofore made are based on allegations in the respondent's answer ( Pars. 4-7, 9-14 ), stipulated by the parties to be true . All findings of fact here- inafter set forth are similarly undisputed unless otherwise indicated. 7 Reference in the above-quoted telegram and in other documents in the record to the "Westinghouse Electric & Manufacturing Company" is to the respondent , as is made clear by a statement on the record of the respondent 's counsel , concurred in by the Gen- eral Counsel , that "earlier documents in evidence which may refer to the Westinghouse Electric and Manufacturing Company . . . [refer] to the respondent in this case, the Westinghouse Electric Corporation." 8 As has been set forth above, the UE was so certified on January 3, 1944. WESTINGHOUSE ELECTRIC CORPORATION 953 a Petition for Certification of Representatives 0 of the production and mainte- nance employees of the respondent's Cleveland plant 10 A day or two after May 13, 1946, the respondent received from the Board a notice dated May 13," of a conference to be held on May 17, concerning the IBEW's Petition. Sometime between his receipt of the aforesaid notice and May 17, Donald D. Jenkins, supervisor of industrial relations of the respondent's Cleveland plant, telephoned the representative of the IBEW who had filed the Petition, requesting him to consent to a postponement of the scheduled conference. According to Jenkins' undenied testimony, which the undersigned credits, the IBEW representative informed Jenkins that he had no objection to a postponement, "and that as a matter of fact, he would welcome it because he didn't feel that he had quite the representation that he thought he ought to have to go before the Board." The scheduled conference was subsequently postponed from May 17 to May 20, on which date Jenkins was informed by the Board, by telephone, that the con- ference would not be held, since the petition had been withdrawn "without prejudice."' Within a few days the respondent received written notice from the Board, dated May 22, 1946, of the withdrawal of the IBEW's Petition. 2. Rival-union activities Elmer Minch and George Cunningham were in the employ of the respondent, at its Cleveland plant, from about November 25, 1940, and January 1937 or 1938, respectively, to June 5, 1947, the date on which both were discharged. Edwin Murray was employed in the Cleveland plant from December 13, 1945, to April 10, 1947, when he voluntarily left the respondent's employ. Minch, Cunningham, and Murray were all members of the UE prior to and at the time of the strike which began on January 15, 1946, and they engaged in the said strike for its duration together with the other employees. Towards the end of the strike, however, as a result of dissatisfaction with the UE, these three employees, among others, began to attend meetings of the IBEW, which was seeking to enlist the respondent's employees. On May 8, 1946, Minch, Cunningham and Murray attended an IBEW organi- zational meeting, at which, among other striking employees, Minch and Cun- ningham signed application cards for membership in the IBEW, and at the same time, "withdrawal slips," in triplicate, tendering their resignation from membership in the UE. According to the undenied and credited testimony of Minch and Cunningham, which was corroborated by that of Murray, they placed the signed withdrawal slips on a desk in the meeting hall, from which the slips were gathered by Murray, who took them into his possession. Murray testified that on May 8 he mailed to both the respondent and the UE, duplicate sets of the withdrawal slips which he had gathered, and at that time he kept in his o Case No. 8-R-2213. 10 On May 9 or May 10 , 1946, the respondent received formal notice from the Board, dated May 8, of the filing of the IBEW's aforesaid Petition . To this notice was attached a copy of a letter from the IBEW to the Board, dated May 7 , which set forth the IBEW's claim to represent a majority of the employees , the IBEW ' s demand for recognition by the respondent , and the position taken by the respondent with respect thereto. 11 The undersigned infers and finds that the above-mentioned notice was received by the respondent in the regular course of the mail , a day or two after May 13. 13 The above finding is based on Jenkins ' credited , undenled testimony . This testimony is corroborated by the fact that on May 20, 1946, the IBEW signed a Board form requesting withdrawal of the Petition , which request was approved by the Regional Director of the Board the next day. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possession the third set of the triplicate withdrawal slips which had been signed by the employees. Supervisor of Industrial Relations Jenkins, of the respondent's Cleveland plant, testified that he received a set of nine withdrawal slips on May 8." According to Jenkins, however, this set of slips did not include one signed by Minch, though it did include one dated "5/2/26," signed by Murray, another dated "5/8/46," signed by Cunningham, and seven others signed by various other employees, one dated "5/6/46," one "5/7/46," and the remaining five "5/8/46." The undersigned has heretofore credited Minch's testimony that at the meeting on May 8 he signed withdrawal slips in triplicate and placed them together with the others which were picked up by Murray to be mailed to the UE and the respondent. This is not necessarily in conflict with Jenkins' testimony, which the undersigned likewise credits, that no withdrawal slip signed by Minch was ever received by him from the period from March 31, 1946, to the end of May. It is probable that Murray inadvertently made an error in sorting the triplicate sets of slips, with the result that the set mailed to the respondent did not include one signed by Minch'} Whatever the explana- tion may be, the undersigned, as hereinbefore indicated, is convinced and finds that though Minch did sign withdrawal slips in triplicate, and left them to be picked up by Murray and mailed to the UE and the respondent, no such with- drawal slip signed by Minch was ever received by the respondent. It is further found, on the basis of Jenkins' testimony, that the respondent did receive by mail , withdrawal slips signed by Murray and Cunningham, dated, "5/2/46" and "5/8/46," respectively, on May 8, 1946, or within a day or two thereafter. As has been above set forth, Murray testified that on May 8, 1946, he mailed to the UE a set of withdrawal slips, duplicating that mailed to the respondent, and that he retained a third set in his possession. Murray further testified that he sent the aforesaid sets of withdrawals to the UE and the respondent by ordinary (unregistered) mail; that later the same evening it was suggested to him that as a precaution he mail to the UE by registered mail, the set of with- drawals which he had kept, since the UE might refuse to accept those sent by ordinary mail ; " that be thereupon attempted to deliver the third set of with- drawals personally to a local officer of the UE, who refused to accept them ; and that on the next morning, May 9, he sent the aforesaid set of withdrawal slips to the UE by registered mail. Upon being asked whether he could produce a postal receipt evidencing the sending or receipt of the withdrawals, Murray answered, "No, I think-I doubt whether I have them today. I kept most of that stuff at the house afterwards, after I left the plant. And God knows what became of them I never bothered any more about it." Murray impressed the undersigned as, on the whole, a credible witness, though he was understandably vague with respect to some details regarding events which had occurred nearly 2 years before the hearing. His undenied testi- mony that he had mailed a set of withdrawals to the UE by unregistered mail, at the same time (May 8) as he did to the respondent, is therefore credited, "If, as Murray testified, he mailed the slips to the respondent during the evening of May 8, it seems unlikely that they would have been received by the respondent on the same day Either Jenkins was in error when he recalled receiving them on the 8th, or Murray was wrong when he testified that he mailed them during the evening of that day. At any rate, the undersignd finds that the withdrawal slips were received by the respondent on May 8, 1946, or within a day or two thereafter. 14 Murray admitted the possibility of such an error. 15 Murray testified that some time after May 8, the "letter" In which he had first mailed a set of withdrawal slips to the UE "came back" to him, the UE having apparently re- fused to accept it. WESTINGHOUSE ELECTRIC CORPORATION 955 and the undersigned finds that he did so. The undersigned is persuaded, how- ever, that the record contains insufficient evidence to afford a basis for a finding as to the identity of the signers of the withdrawal slips thus mailed to the UE on May 8. Murray testified that lie could not remember how many withdrawal slips he sent to the UE on either May 8 or May 9. With respect to the identity of the signers of such slips, be testified only that he "had mailed all the with- drawal slips in." There is no evidence, moreover, that when the set of with- drawals mailed to the UE on May 8 was returned to Murray, after apparently being refused by the addressee, the envelope was opened and the contents thereof checked. As has been found above, the set of withdrawal slips mailed to the respondent at the same time as the set mailed to the UE (on May 8), did not include one signed by -Minch, ithich indicates that some mistake was made in the sorting of the triplicate sets of slips. Under all these circumstances, the undersigned is of the opinion, and finds, that there has been a failure of proof with respect to the contents of the envelope mailed by Murray to the UE on May 8, other than that the envelope contained an indefinite number of withdrawal slips. The record is similarly inconclusive as to the second mailing of withdrawals to the UE-that which Murray claims to have sent on May 9 by registered mail. Here again Murray's testimony fails to establish the identity of the signers, or the number, of withdrawals mailed to the UE. And since the withdrawals mailed on May 9 consisted of the remainder of the same triplicate sets of slips with respect to the sorting of which there had been some error on Murray's part, the same uncertainty exists as has been pointed out above regarding those mailed on May 8. It is true that the UE, in a letter to the respondent dated December 10, 194G, states that it received withdrawal slips signed by Murray, Cunningham, and Minch. The said letter, however, alleges that these slips were enclosed in an envelope, sent by registered mail by Murray, which was postmarked May 21,1946. Murray identified his name and return address, appearing on the back of a photostat of the aforesaid envelope (which was enclosed in the letter from the UE to the respondent), as being in his writing. Asked at the hearing whether the photostat was a reproduction of the envelope in which he had mailed the withdrawal slips, as he claimed, on May 9, Murray answered, "Well, I couldn't tell you whether that was the one I sent or not on May 9th . . . I couldn't definitely say whether I sent that on May 9th or not. I also had another paper I sent back to them." No evidence was produced with respect to any other registered mail sent by Murray to the UE after May 916 It is seen, therefore, that the record contains only Murray's unsupported testimony that he mailed some withdrawals to the UE by registered mail on May 9, and the UE's letter to the respondent, stating that it had received withdrawal slips signed by Murray, Minch and Cunningham, in a registered envelope postmarked May 21. The latter letter is viewed by the undersigned as being hearsay, and consequently affords no basis for a finding as to the truth or falsity of the factual statements therein contained. In view of the vagueness of Murray's testimony in regard to the alleged May 9 mailing, and any subsequent mail sent by him to the UE, the undersigned does not feel that he can base findings of fact on that testimony. 10 Murray had testified previously that the mail sent by him to the UE on May 8 and 9 was "the only mail I ever addressed to them" after the strike ; that he "believed" that he "sent some more [withdrawal ] slips in to the UE later on [i . e., after May 9]" ; that he "believed" that "all of them we sent after went registered mail to the UE" ; and that so far as he could remember he had not mailed any additional withdrawals to either the UE or the respondent after May 10 or 11. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore found that there has been a failure of proof with respect to the claimed mailing of withdrawal slips by Murray to the UE on May 9, 1946. B. The discriminatory discharges On June 12, 1946, the local president of the UE personally delivered a letter to Jenkins, at the respondent's Cleveland plant, reading as follows : This is to notify you that employees Edwin Murray, George Cunningham, and Elmer Minch are no longer members in good standing of Local 777, United Electrical, Radio and Machine Workers of America, under its Con- stitution and By-laws, and the Union therefore, under Section VII of the National Contract dated April 1, 1946, requests that the said employees be discharged. On June 14, Jenkins replied in writing to the above letter as follows : Mr. Kowar, President of Local 777, handed me a letter which you wrote to us on June 12th requesting that Edwin Murray, George Cunningham, and Elmer Minch be discharged in view of your notification that they were no longer members in good standing of your Local. The seriousness of discharge, not only to the employees, but also through the jeopardy in which the company might unwittingly place itself, is such that before any final action is taken, we would appreciate additional informa- tion from you as to why these three employees are not members in good standing. Shortly after June 14, and before June 20, Jenkins conferred with a local committee of the UE, and again sought to elicit from the UE an explanation "as to why [Murray, Cunningham, and Minch] were not members in good standing." The UE representatives replied, in sum, "that the proper procedures of the Union's constitution and by-laws had been carefully followed, and that the action had been approved by the members. Further than that, they felt that it was im- proper for the Company to question the Union's action." ' On June 20, Jenkins again wrote a letter to the UE local, in which, after sum- marizing his aforesaid discussion with the UE representatives, he stated: The Company has reason to believe that the three individuals, who are alleged to be no longer members in good standing, have been so adjudged because of their activities in support of a rival union, which activities began toward the end of the strike ending May 9, 1946. The Company considers that the discharge of three individuals by the Company under such circumstances might be held to constitute a violation of the National Labor Relations Act. Paragraph I of the Strike Settlement Agreement, dated as of May 9, 1946, provides that the Union security provisions of any other agreement between the parties will not be used for the purpose of circumventing the prohibi- tion against discrimination and retaliation by the Union against any occur- rence pertaining to the recent strike. The Company considers that the present request to discharge the three employees in question is contrary to this provision of the Strike Settlement Agreement. 17 The quotations above are from a letter written by Jenkins to the UE on June 20, 1946, in which, as Jenkins testified , he correctly set forth the substance of his discussion with the UE representatives. WESTINGHOUSE ELECTRIC CORPORATION 957 In addition the Company received on May 8th properly executed resig- nations from the Union for Mr. Edwin Murray and Mr. George Cunning- ham. The Company further believes that discharge of these two men would again be contrary to the provisions of the Strike Settlement Agreement, "No Discrimination," Paragraph I which reads in part: "Notwithstanding any other agreement between the parties, (a) employees who have withdrawn from the Union between March 24, 1946 and the date of this Strike Settlement Agreement, shall not be penalized by loss of senior- ity or employment because of such withdrawal, ..... " The Company, therefore, refuses to discharge Messrs. Murray, Minch, and Cunningham. Between June 20, 1946, and July 26, 1946, there ensued an exchange of corre- spondence between the UE local involved, and W. F. White, manager of the respondent's Cleveland plant, in which the UE reiterated its demand that Minch, Murray, and Cunningham be discharged, and in which White reaffirmed the position taken by Jenkins in his letter of June 20. On August 2, 1946, the UE local informed Jenkins that it was taking an ap- peal, under the grievance procedure in effect between the UE and the respondent, "to the national level." Jenkins thereupon sent to I. B. Stiefel, assistant to the respondent's vice-president in charge of plant labor relations, all of the cor- respondence which had theretofore passed between the UE and the respondent on the subject's On September 18, 1946, an international representative of the UE addressed a letter to Stiefel stating : In accordance with our National Agreement, Section VII, "Maintenance of Membership," Local 777, Cleveland, Ohio, has requested local plant man- agement to release Edwin Murray, George Cunningham and Elmer Minch. The local union has followed the procedure set forth in our constitution and by-laws in this case and requests that local management fulfill its part of the agreement by releasing these people from the Company. We feel that this case should be settled without further delay. So far as the record reveals, the next step in the negotiations between the UE and the respondent, concerning the requested discharges, took place about October 25, 1946, when Stiefel, the respondent's counsel, and the respond- ent's vice-president in charge of plant labor relations conferred with counsel and an international representative of the UE. The respondent's representatives at this conference indicated that they still were troubled by three questions raised by the UE's demand: 1. Whether the discharges would be in violation of the Strike Settlement Agreement ; 2. Whether, if the respondent discharged the three employees in question, it would be in violation of the Act; and 3, What the "status of these men [was] with respect to their membership" in the UE. The UE representatives promised "to clear up those points." 19 Stiefel subsequently received a letter from the UE's international representative, dated December 10, 1946, which has been hereinbefore adverted to, in which the UE contended: 1. That Murray, Cunningham, and Minch were not members in good standing in the UE. 2. That the "acts committed by the individuals took place after May 9, 1946, and that they withdrew from the [UE] after this date." 18 All of the respondent 's replies to the UE had been supervised by counsel in the respondent 's legal department. 19 The above quotations are from the testimony of Stiefel. 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 That "these people had a fair trial on June 8, 1946, at which it was decided that they were guilty of the charges filed against them and should be released by the Company. Following this, a regular membership meet- ing upheld the decision of the trial committee." The letter ended, "We expect that there will be no further delay in local man- agement's carrying out of the membership's decision " Enclosed therein were photostats of the following documents, alleged to constitute proof of the UE's contention number 2, as above set forth: Notices of withdrawal from the UE, signed by Cunningham and Murray, dated 5/8/46 and 5/2/46; an envelope sent by Murray to the UE by registered mail, postmarked May 21, 1946; 20 post-office receipts showing receipt by Murray and Cunningham, on June 6, 1946, of notices to appear before a trial committee of the UE ; and an envelope and postal receipt showing the mailing to, and refusal to accept such a notice, by Minch. On January 9, 1947, Stiefel replied to the UE's letter. Emphasizing that "a major consideration in each of these cases [i. e., those of Murray, Minch, and Cunningham] is the estabii^hnient of the true reason for the discharge request, Stiefel's reply went on to point out the jeopardy in which the respondent might be placed if it acceded to the demand for the discharges, under Board and court decisions. The letter concluded : While the post office receipts for letters sent to employes indicate that a letter was received by two of the employes involved on June 6, 1946, and rejected by the third employe on June 5, 1946, you have not provided either the charge on which the employes were tried nor the evidence on which they were declared not in good standing. It was our understanding that the Union accepted the necessity of a complete disclosure of the facts in their possession and that such information would be made available before further consideration could be given to the proper action by Management. This letter evoked a reply from the UE, dated January 30, 1947, which, after reiterating the UE's contentions as to the regularity of the procedure, according to the UE constitution, by which Cunningham, Murray, and Minch "were expelled from the Union on June 11, 1947," 21 went on to say : Paragraph 1 of the Strike Settlement Agreement is inapplicable to the pres- ent case, in that the expelled employees attempted to withdraw from the Union after May 9, 1946, and further, in that they were not expelled for any occurrence pertaining to the strike. The National Agreement does not obligate the Union to supply the Company with the evidence on the basis of which the employees were expelled by the Local membership. This was not the intention of the parties, nor do we believe the Company desires to sit in judgment upon such matters. Section VII of the National Agreement required the Union to "notify the Company promptly in writing of failure of a member to remain in good standing." We have so done on June 12, June 19, September 18, and I)ecember 10 of 1946. Upon such notification, the Company is required by the Agreement to discharge such employees in that they are not "members of the Union in good standing, in accordance with its Constitution and By-Laws," which is a condition of their employment by the Company. 20 The letter also stated parenthetically , "Elmer Minch's withdrawal was also sent in this envelope." 21 The above date is as it is stated in the letter. Since the record shows and the parties agree that the three employees were actually expelled from the UE on June 11, 1946, the year 1947 as stated above is obviously a typographical error. WESTINGHOUSE ELECTRIC CORPORATION 9594 I trust, therefore, that you will immediately discharge George Cunning- ham, Edwin Murray and Elmer Minch, thus fulfilling Section VII of the National Agreement. Stiefel replied to the foregoing letter on February 7, 1947. His letter read : We have reviewed your letter of January 30, 1947, and previous corre- spondence relating to the request that the Company discharge three em- ployees (George Cunningham, Edwin Murray and Elmer Minch) at Cleveland. At the time this matter was first discussed with you and Mr. Scribner in Pittsburgh on October 25, 1946, we fully explained the reasons why, in this particular case, we felt it was necessary for the Company to insist upon evidence to satisfy us that the three employees involved were not expelled because of their activities in support of a rival union or any other activities pertaining to the strike. It was our impression that you and Mr. Scribner were sympathetic to our point of view and that you would furnish us with that evidence. However, no such evidence has been supplied, and your letter of Januar} 30, 1947, indicates that you are now taking the position that the Union has no obligation to supply it. Based upon the facts we do have in our possession, including a copy of the charges agan+at one of the thice employees," we must adhere to the position, in the absence of any convincing evidence to the contrary, that (1) the Union's request that we discharge these three employees constitutes (and our compliance with such request would also constitute) a violation of Paragraph I of the Strike Settlement Agreement and (2) our compliance with such request would constitute a violation of the National Labor Re- lations Act as such act has been interpreted by NLRB. We cannot, therefore, comply with your request at this time. We suggest that you carefully review this matter in the light of our position as outlined above." Stiefel's above-quoted letter was answered by the General Counsel of the UE in a letter dated March 6, 1947, addressed to the respondent's counsel, which reads as follows : I have read the letter of Mr. Stiefel to Mr. Matthews dated February 7, 1947 with respect to the above matter. Apparently there was some mis- understanding as to the nature of the charges filed against the individuals who were expelled by the Union and the nature of the activities for which they were expelled. I submit the following information to you in order to clear this matter up thoroughly so that there is no question but that the maintenance of mem- bership provision applies to this situation, and that the employees who were expelled by the Union after notice of charges and an opportunity to be heard, should be discharged at the request of the Union. sz The reference in the above-quoted letter to "a copy of the charges against one of the three employees" is apparently to copies of a letter, dated May 10, 1946, sent to Murray by the UE, and charges therein enclosed, in which Murray is charged by Cleveland officials of the UE with having violated certain sections of the UE constitution. The charges specify that . These sections were violated in that Edwin Murray attempted to get members of Local 777 UERMWA-CIO to join the IBEW during the course of the strike, thereby jeopardizing the welfare of members of Local 777 and playing into the hands of the Westinghouse Corp. According to Jenkins' testimony, copies of this letter and of the charges therein enclosed were handed by Murray to Jenkins in September of 1946. "All emphasis in the above-quoted letter is supplied. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The charges against each of the three persons, namely, Elmer Minch, George A. Cunningham and Edwin J. Murray, were identical and were all dated June 3, 1946 and read as follows : "I hereby charge Elmer Minch with violation of Article 8, Section I of the Local Constitution, the District Con- stitution, and Article 24, Section A of the National Constitution and By-Laws." These charges were preferred under the Local Constitution at a general membership meeting on June 3rd, 1946. A trial committee was elected at that membership meeting. On June 5, 1946, pursuant to the Local Constitution, a copy of the charges were sent to each of the individuals named and a trial date set for June 8, 1946. The persons charged were also advised that they were entitled to have a representative to aid in their defense, if they so desired. The trial committee met on June 8, 1946, pursuant to the notice. The persons charged failed to appear, despite notification to them, and the trial proceeded in their absence. All the evidence adduced before the trial com- mittee related to events subsequent to May 9, 1946 and had no relation what- soever to any occurrences prior to May 9, 1946. After full consideration of the evidence, the trial committee thereupon found the three persons guilty and recommended that they be expelled from the Union. At a membership meeting on June 11, 1946 the recommendation of the trial committee was presented to the membership for action. After full dis- cussion the membership unanimously upheld the recommendation of the trial committee and also unanimously passed a motion that the Local Union request the dismissal of the three persons so found guilty under the main- tenance of membership clause, Section 7 of the National Agreement dated April 1, 1946. On June 12, 1946 the Local Union in writing formally requested Mr. Jenkins, Supervisor of Industrial Relations in Cleveland, that the three named persons be discharged under the maintenance of membership provision. There was some exchange of correspondence after that between the Local Union and the Local plant management, and between Mr. Matthews and Mr. Stiefel , with which you are undoubtedly familiar. I trust that this clears the matter up completely. On or about January 28, 1947, the respondent was presented with a written formulation of the UE's demands in connection with forthcoming negotiations for a revision of the national collective bargaining contract in effect between them." These demands included one for a union-shop clause to replace the maintenance-of-membership provision in the then existing agreement. During the negotiations, which began about February 10, 1947, and continued inter- mittently until April 17, 1947, the respondent proposed that the maintenance-of- membership clause in the 1946 contract, amended so as to provide for two escape periods , be continued in the new contract. The UE objected to this proposal on the ground that "this maintenance-of-membership" clause did not "mean any- thing"-that the respondent "won't even discharge people when we present them with the facts in the case." In this connection the UE representative referred to the case of the employees herein involved, and "remarked that his '* At the time above referred to, the UE represented approximately 65,000 of the respondent 's employees in collective bargaining. WESTINGHOUSE ELECTRIC CORPORATION 961 conference group, made up of the representatives of the different [UE] locals who were in town, had been raising the question with him regarding the lack of action on the request of the Union with respect to having these men discharged." The UE further contended that the respondent was violating the maintenance-of- membership clause by its refusal to discharge Murray, Minch, and Cunningham and that it was, in view of this circumstance, "bargaining in bad faith" with respect to the union security clause. One of the UE representatives "made the remark that his conference group was very much disturbed with this Cleveland situation, and that . . . it would prolong and maybe cause the negotiations to bog down." After this subject was raised in the negotiations by the UE,25 Stiefel and Vice-President Lippman discussed it, and thinking that " it was of sufficient importance, due to its bearing on our negotiations," asked Manager White and Supervisor of Industrial Relations Jenkins, of the Cleveland plant, to come to the respondent' s main offices in Pittsburgh to discuss it further. At the said meeting, the date of which was not fixed by the evidence, the whole subject and the "importance that [the respondent] felt there existed to come to a decision on the question," were reviewed. At the conclusion of the meeting "it was the consensus of opinion of the group that the request of the Union was proper, and we should act favorably upon the [UE's] request." Following this conference, the respondent notified the UE representatives at the negotiations that it had decided to accede to the UE's demands for the discharge of the employees in question. It called the attention of the UE, however, to a letter from the IBEW to the respondent, in which the IBEW threatened to file unfair labor practice charges with the Board in the event the said employees were dis- charged "for an assumed violation of the UE-CIO agreement," 26 and requested the UE, "in view of that situation to reconsider the matter ... [but if the UE] later notified [the respondent] that [it] wanted [the respondent] to discharge the men, that [the respondent] would do so." The UE representative promised to "consider the matter further and [to let the respondent] know." 27 In a letter dated May 12, 1947, the UE reiterated its demand that Minch and Cunningham be discharged.28 On June 5, 1947, Minch and Cunningham were discharged'21 pur- suant to instructions forwarded to Jenkins, at the Cleveland plant, by Stiefel, on June 3rd. The contentions of the parties, and concluding findings with respect thereto Section 8 (3) of the Act defines as an unfair labor practice discrimination by an employer "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : Provided, that nothing in this Act . . . shall preclude an employer from • 25 According to Stiefel's testimony, the subject of the requested discharges was brought into the negotiations, as above described, subsequent to March 17, 1947, and in early April of that year. 2e The letter from the IBEW was received by the respondent a day or two after March 18, 1947. 27 The above findings are based on the testimony of Stiefel . All quotations included therein are from his aforesaid testimony. 25 Murray had in the meantime ( on April 10 , 1947 ) voluntarily left the respondent's employ. 29 Minch testified without contradiction, and the undersigned finds, that he was notified of his discharge on June 5, 1947 , by Maintenance Superintendent Scott, who told him on this occasion "You seem to have some trouble with the Union around here. However, I think you are well set . You can go down to the AFL and they will have a job for you down there." 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making an agreement with a labor organization . . . to require, as a condition of employment, membership therein, if such labia organization is the repre- sentative of the employees as provided in Section 9 (a), in the appropriate collec- tive bargaining unit covered by such agreement when made." The respondent contends that the discharges of Minch and Cunningham were made pursuant to, and were required by, a valid maintenance-of-membership pro- vision in the collective bargaining contract between itself and the UE, and that, therefore, "the respondent has a complete defense by reason of the agreement and the [above-quoted] proviso to Section H (3)" of the Act The General Counsel contends that the discharges are violative of the Act under the "Rutland Coui t doctrine" 30 of the Board, since at the time the respondent dis- charged Minch and Cunningham, it "knew or believed and had reasonable grounds to know and believe and had been put on notice that the UE was demanding the discharge of Minch and Cunningham because the said employees had engaged in IBEW activity during a period when it was appropriate for the employees to engage in such activity." The foregoing contentions 31 raised the following issues (1) Whether, preceding the discharges of Minch and Cnnnuigham, there was it pei hod during which it was "appropriate" for them, notwithstanding their TIE membership, and the utalnte- nance-of-membership clause in the contract, to engage in rival-union activities, and if so, the extent of that period; (2) Whether the aforesaid employees did engage in rival-union activities during such an appropriate period: (3) Whether such activity on their part during such a period, was actually the basis for their loss of good standing in the UE, and for the demands made by the UE for their discharge, and (4) Whether the respondent knew, or reasonably believed at the time of the discharges, that the UE's denaaml for their discharge was motivated by their rival-union activities during an appropriate period These issues are discussed below. 1. The appropriate period It is undisputed, :inc] has been found above, that there was no contract rii effect between the UE and the respondent between midnight, .March 31, 194(i, and May 9 or 13, 1940.32 The respondent admits that it could not leally discharge any of its employees because they had lost their membership in the UE on account of their activities on behalf of a rival union, or because they had "agitate[d] for the ouster of their bargaining representative' during that period " There is, then, no ques- tion but that the period from midnight, March 31 to May 9 or 13, 1940, constituted an "appropriate" tiiue for rival-anion activities on the part of the respondent's employees. 30 See' Hatter of Rutland Court Onners, The, 44 N L R 13 X47, 46 N L R B 1040 31 In view of the findings hereinbefore made that the recoid fails to establish an effective withdrawal by Minch and Cunningham from the UE, the undeisigned will forego any further discussion of that issue, and will concern himself in these concluding findings only with the issues involved in the "Rutland Court" aspects of the case. Insofar as the attempts of the employees in question to withdraw from the UE shed light on those issues. such attempts to withdraw will be adverted to 32 This was the period between the effective termination of the collective bargaining contract between the parties which was in effect prior to the strike , and the effective date of the new agreement entered into on May 9, and ratified by the UE locals on May 13, 1946. 3° The above quotation is from the respondent ' s brief, in which it is admitted that "the employees had been free to pursue such a cause at least from March 31 to May 9, 1946 " WESTINGHOUSE ELECTRIC CORPORATION 963' It has also been found above, on the basis of undisputed evidence, that on May 7, 1946, the IBEW demanded of the respondent, and was refused, recognition as collective bargaining representative of the employees in the respondent's Cleve- land plant,33 and that on the same day the IBEW filed with the Board a Petition for Certification of Representatives, which was not withdrawn until May 20, 1946. The General Counsel contends that the aforesaid demand for recognition by the IBEW, its refusal by the respondent, and the filing of the Petition by the IBEW, all occurring at a time when there was no contract between the UE and the respondent, raised a question of representation which remained pending until May 23, 1946, the date when "the Regional Director of the Board gave the parties official notification that the petition had been disposed of ...' The General Counsel argues further that "by reason of the pendency of [the said] petition for certification by the IBEW between May 7 and May 23, 1946, that was a protected per foil for dual unionisins " a With respect to this, the respondent admits that it "d,sregarded" the Petition for Certification filed by the IBEW, and contends that the said filing raised no genuine question of representation such as would, during its pendency, make that period an appropriate one for dual-union activi- ties. In support of this position the respondent points to the following circum- stances • (a) The IBEW's demands for recognition and the filing of the petition took place "at almost the last possible moment before the end of the strike"; (b) the IBEW representative who signed the petition admitted to the respondent be- tween May 14 and May 17, 1946, that "the IBEW's claim to represent a majority could not be substantiated"; 36 (c) no conference on the petition was ever held by the Board, and no pay-roll data was furnished by the respondent, "without which an investigation by the Board of the representation claim of IBEW was impossible": (d) "although it developed at the hearing that the respondent's in- formation was erroneous, it had proceeded up to that time under the mistaken impression that no formal petition for certification was ever filed, having been so informed by the same [IBEW representative] who . . ., it developed at the hear- ing had actually verified the petition"; " and (e) "when an election was finally 34 The telegram in which the IBEW made the demand on the respondent merely alleged that "employees of [the respondent ]" had "demanded" that the IBEW "represent them as bargaining agent," and asked the respondent to refrain from recognizing "any other organization as bargaining agent" However, the respondent apparently considered this telegram as a demand for recognition on the part of the IBEW, since in its reply thereto the respondent stated that it "could not recognize the IBEW as bargaining agent until such time as the N L R B. so certified them " 3 The IBEW actually signed the request for withdrawal of its Petition on May 20, and the respondent was informed of this fact by telephone , by a Board representative, on the same day On May 21, the Regional Director approved the request for withdrawal, and on the next day formal notice thereof was mailed to the respondent. For purposes of this proceeding, the undersigned treats the withdrawal of the Petition as having been effected on May 20. 1946, contrary to the contention of the General Counsel that the- petition was "pending" until the formal notice of withdrawal was received by the respondent 3' As has been found above, some time after being notified that a conference on the IBEW's petition was scheduled for June 17, 1946, Jenkins requested the IBEW repre- sentative to consent to a postponement of the conference. The latter did so. saying that "he would welcome it because he didn't feel that he had quite the representation that he thought lie ought to have to go before the Board." V Jenkins testified at the hearing that he had been requested by the Pittsburgh head- quarters of the respondent to ascertain whether a petition had actually been filed by the 1BPUW, that he thereupon telephoned the IBEW representative and asked him whether or not he had done so ; and that the latter told him that he had net filed a petition but had merely "written a letter to the Board ." In view of the facts that a petition actually was filed , that the respondent admittedly received oflieial notice of this from 517319-49-vol 80 62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held a year later, and the employees were given a choice between IBEW and UE, they voted for UE by a majority of more than 13 to 1." ae So far as the undersigned has been able to discover in studying the applicable Board decisions, it is true, as the respondent contends in its brief, that the Board has not, to date, ever made an explicit ruling that the filing of a representation petition in itself "extends the period within which employees are to be afforded the protection of [the Rutland Court] doctrine." It seems clear to the under- signed, however, that in cases involving application of the Rutland Court doc- trine, the Board has consistently assumed or implied that employees are free to carry on activities designed to bring about a change in their collective bargaining representative during any period when a question of representation may properly be raised-e. g., at a time such as we are herein concerned with, when no contract bar exists to the filing and investigation of a petition for certification. Thus, even in the Diamond T case" cited by the respondent in support of its position, the Board sustained the holding of the Trial Examiner that the dis- charges therein involved were not violative of the Act, solely on the ground that "the respondent . . . did not know, at the time it discharged these two employees pursuant to a valid union-shop agreement with the [contracting union] that [such union] had expelled them and demanded their discharge be- cause of their activities on behalf of the [rival] Union at a time when a question concerning representation was pending." [Italics supplied.] The Board's de- cision goes on to state, "we agree with the Trial Examiner that on the facts in this case knowledge is essential to a finding of a violation of the Act on the part of the respondent." It is to be noted that in the Diamond T case the Board considered that "a question concerning representation was pending" at the time when the rival-union activities took place, on the basis of the fact that, as is the case herein, the rival union had demanded recognition of the respondent, and had filed a petition for certification, prior to the time that the union-shop contract pursuant to which the employees were discharged, was entered into. It is a reasonable inference from the Diamond T opinion, in view of the basis on which the Board rested its decision therein, that had it been proved that the respondent knew that the contracting union was demanding the discharge of the employees because of their rival-union activities during the period when the question of representation was pending, the discharges would have been found to be violative of the Act 40 Such an inference is strongly supported by the language and reason- the Board ; that conferences on the petition were thereafter scheduled by the Board; and that, finally, official notice of withdrawal of the petition was admittedly received by the respondent, the respondent's asserted mistaken impression that no formal petition had been filed, even assuming that the IBEW representative made such a statement to Jenkins, seems to the undersigned to be so lacking in foundation that it has no significance herein. 88 A petition filed by the IBEW on March 27, 1947, covering the employees at the respondent's Cleveland plant, led to a consent election on May 1, 1947, in which the IBEW received 68 votes and the UE 895, of 982 valid votes counted. The UE was certified by the Board as collective bargaining representative of the said employees on May 27, 1947. On or about April 17, 1947, the respondent entered into a new contract with the UE, containing a maintenance-of-membership clause. 39 Matter of Diamond T Motor Car Co., 64 N. L. R. B. 1225. 10 The respondent in its brief points out that in the Diamond T case, "there was a pending certification proceeding which actually proceeded to an election, and which was pending at the time the union security provisions of the contract involved were renewed, but the Board unequivocally rejected the argument that this fact created a fatal infirmity in the union security provision." This argument by the respondent overlooks the fact that in the case at bar the validity of the union-security contract between the UE and WESTINGHOUSE ELECTRIC CORPORATION 965 ing in more recent Board decisions . For example , in Matter of Lewis Meier & Co., 73 N. L. R. B. 520, the Board held that, "under the principle enunciated in the Rutland Court case, the closed-shop contract between the respondent and the [contracting union] did not protect the discharge of [named] employees, and that therefore their discharge by the respondent, upon the request of the [contracting union], was violative of the Act. It is clear, and we find, that the complainants joined, and campaigned for, the [rival union] at a time when it was appropriate for the employees to change their bargaining representative, and that the [con- tracting union] suspended these employees and requested their discharge under the closed-shop contract because of such rival union activity. We are convinced by the circumstances . . . that the respondent was on notice that the rival-union activity of the complainants motivated the [contracting union] in requesting their discharge." [Italics supplied.] In the Meier case, the finding that the rival- union activities had occurred during a period "when it was appropriate for the employees to change their bargaining representative" was based on the following facts: During "an indefinitely extended term of a closed-shop contract with the [contracting union], and within 1 week after a claim of majority representation was asserted by the" rival union, the discharged employees had engaged in the rival-union activity which was the basis for their discharge.4' The Trial Ex- aminer, whose findings were adopted in toto by the Board, with some additions, found as follows : The issue herein presented is whether or not self-organizational activities of employees are protected during an appropriate period of a valid closed- shop contract. [The appropriate period is at least one where the existing closed-shop contract] would not be a bar to a representation petition filed by another union. Under the facts here disclosed, the activities of the dis- charged employees, as found above, occurred during such a protected period. It is immaterial whether the union for which the employees engaged in such activities was successful in obtaining the allegiance of either a majority of the employees or of a sufficient number to have the Board process the petition. It is also immaterial whether the competing union for some rea- son or other fails to file its representation petition timely so that the Board, in its sound discretion, refuses to then consider the determination of repre- sentatives. The test is whether the organizational activities of the employees occurred during a protected period, whether successful or not 4R It is clear from the foregoing that the reasons advanced by the respondent here- In for being entitled to "disregard" the pendency of the IBEW petition for cer- tification as marking a period during which its employees were free to engage in the respondent has not been put in issue. We are here concerned only with the question whether the period during which the IBEW's representation petition was pending was an appropriate one for the respondent 's employees to seek to change their collective bargaining representative. 41 The rival union had "asserted its claim of majority representation" by demanding recognition of the employer , which demand was not thereafter followed by the filing of a petition for certification. 42 Italics in the above quotation supplied by the undersigned . That portion of the quotation enclosed in brackets was omitted from the printed text of the decision as published in the official reports of Board decisions (73 N. L. R. B. 520 , at 534 ), obviously as the result of a proof-reading error . The undersigned refers his readers to the mimeographed text of the Intermediate Report ( Case No. 11-C-1258, duplicating number IR-1301). 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dual-union activities, are without merit. In the Me+cr case, the Board found that the period was an appropriate one for the employees to seek to change their bargaining representative because it occurred at a time when the union-security contract had been indefinitely extended, and because such a contract, of indefi- nite term, would not be a bar to the filing of a representation petition by another union. A fortior t, where, as in the present case, there was no contract in exist- ence between the respondent and the UE at the time the IBEW actually filed a representation petition, there was no bar to its filing, and consequently, the filing of such petition raised a question of representation during the pendency of which the employees were free to seek to change their bargaining representath e. It is immaterial, moreover, in the light of the Meier decision, that subsequent events reveal that the IBEW was unsuccessful "in obtaining the allegiance of either a majority of the employees or of a sufficient number to have the Board process the petition." "The test is whether the organizational activities of the employees occurred during a protected period, whether successful or not." The issue here confronting us involves two equally important countervailing considerations. One is the duty to help maintain stable bargaining relationships ; the other is the obligation to protect employees in their right freely to choose their collective bargaining representatives. The philosophy underlying the Rutland Court doctrine is that "the stability intended by the Act is not that involved in perennial suppression of the employee's will." ' In the present case, the em- ployees involved began to assert their will to designate a new bargaining repre- sentative at a time when no contract was in effect between the respondent and. the UE, which was unquestionably appropriate for that purpose. Pursuant thereto, the IBEW filed its petition for certification during the same period. The undersigned is persuaded that the respondent's employees were thereafter free to engage in rival-union activities until the question of representation raised by the filing of the petition was duly disposed of. That question was not, and could not be, determined by the act of the respondent and the UE, admittedly in com- plete disregard of the filing of the IBEW petition two days before, in entering into a contract on May 9, 1946. The question of representation remained open until the petition was withdrawn on May 20th, when for the first time, so far as is shown by the record, the respondent's employees had a basis for knowledge that the IBEW had been unsuccessful in enlisting sufficient support to go forward with the representation proceeding. "To hold otherwise would mean that an employer and a labor union, acting in concert, could maintain one labor organ- ization in perpetuity as a bargaining representative of its employees by the simple device" " of entering into a union-security contract upon the filing of a representation petition by another labor union, and expelling any employees who, during the pendency of the petition, engaged in activity on behalf of the rival organization. Such a result is not encompassed within the policy which the Act seeks to effectuate. 2. The timing of Minch and Cunningham's IBEW activities, and knowledge thereof by the respondent According to Murray's undenied testnnon>, which the undersigned credits, Murray undertook to "organize the IBEW inside the [respondeti 's Cleveland], plant" during the strike. His leading role in such IBEW activity is indicated by 13 Rutland Court case, 46 N. L. it. B. 1040, at 1042. "Meier case, supra, at p. 534. WESTINGHOUSE ELECTRIC CORPORATION 967 the fact that he was in charge of collecting, and mailing to the UE and the re- spondent, the withdrawals from the UE signed by other employees 45 Unlike Murray, Minch and Cunningham are not shown by the record to have taken a very active role in IBEW organizational activities, though, as will here- after appear, the attention of the respondent and the UE seems to have been drawn to them as IBEW adherents because they were among the first of the respondent's employees to have been enlisted in the IBEW by Murray. Thus, Murray testified, and the undersigned finds, that during the strike lie informed Jenkins that he (Murray) was seeking to recruit the respondent's employees into the IBEW ; that Jenkins thereupon asked him how many employees he had suc- ceeded in attracting to the IBEW, and who they were; and that Murray told him "the names of quite a few that went down there," including Minch and Cunning- ham. A "few days after" the strike, Murray further testified and the undersigned finds, he had another conversation with Jenkins, during which Jenkins asked him "how many [he] had organized [in the IBEW] already . . . and why the reason was that [Jenkins] hadn't received Elmer Minch's withdrawal." 46 Mur- ray answered that he "couldn't see the reason why [Jenkins] hadn't received it, because [he] had mailed all the withdrawal slips in." 41 Jenkins testified, and the undersigned finds, that during a discussion with Murray which took place in September 1946, Murray handed him a letter received by Murray from the UE, dated May 10, 1946, and "charges" therein enclosed, in which the UE charged Murray with having violated the UE constitution "in that Edwin Murray at- tempted to get members of [the UE] to join the IBEW during the strike, thereby jeopardizing the welfare of members of Local 777 and playing into the hands of the Westinghouse Corp." Jenkins further testified, and the undersigned finds, that at the time Murray gave Jenkins these documents, he informed him that Cunningham had received identical charges from the UE. It is clear from the testimony of Minch and Cunningham that their IBEW activities, such as they were, were confined to the period of the strike, and that they so informed the respondent prior to their discharge. They both testified that prior to May 8, 1946, and towards the end of the strike, they attended several IBEW organizational meetings, and that at a meeting held on May 8, they joined the IBEW, and signed withdrawal slips from the UE, which they placed on a table to be mailed to the UE and the respondent. As to IBEW activity after the strike, Cunningham testified only that after returning to work. he no longer considered himself a UE member, and therefore wore an IBEW button on his work apron in the planti8 Describing a conversation with Jen- 46 Murray's IBEW activities , and the respondent's knowledge concerning them are material to the issues herein, since during all the negotiations between the UE and the respondent with respect to the UE's demands for the discharge of Murray, Minch, and Cunningham, the subject was treated as involving one case, affecting all three of these employees alike-until Murray quit the respondent's employ in April 1947. 46 From the context of the testimony, it is clear that the reference to "Minch's with- drawal" is to his withdrawal from the UE, such as those signed by Murray and Cunningham which Jenkins admittedly received in the mail on or about May 8. 47 The undersigned credits Murray's above-quoted testimony, and finds that conversations between him and Jenkins took place substantially as he testified Jenkins did not specifi- cally deny having had such conversations with Murray, though he did testify that he had had no "discussion with either Minch or Cunningham or Murray prior to" September 1946. It would not materially affect the crucial issues herein it such conversations as Murray described took place in September 1946, instead of at the time fixed by Murray in his testimony. 48 It is to be kept in mind that on May 8, there was no contract in effect between the UE and the respondent , and consequently , no obligation on the part of the employees to maintain their membership in the UE. It will also be remembered that unlike Minch's 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kins which preceded his discharge, Cunningham testified that Jenkins told him that the UE was demanding his discharge because of activity he was alleged to have carried on after the strike, and that in answer to this he told Jenkins that he considered himself "completely through with the UE," and further, that he "had no more activities and no desire for any more." Minch testified that although at one of the IBEW meetings which he attended during the strike, he was handed some IBEW application cards "for organizing," he did not actu- ally recruit any members for that union, and that he confined his activity on behalf of the IBEW to "speaking his piece" as to "which was the better union." He further testified that his activity was limited to the period of the strike, and that he "stayed clear" of such activity after the strike ended, except that "after [he] was expelled from the [UE, he] did make different remarks." Jenkins' account of his conversations with Cunningham does not substantially conflict with the testimony of the latter, except that he placed the time of such conversations at a later period than that recalled by Cunningham. There is, however, some conflict between the testimony of Minch and Jenkins with respect to conversations between them. Minch testified that about a week or two after the strike he was informed by Jenkins that "the UE is starting proceedings to get [Minch] fired for [his] IBEW activities during the strike." To this Minch replied, according to his testimony, that he had done no organizing in the way of signing up members for the IBEW, but that he had himself signed an IBEW card, and had, during the strike, "spoken his piece" on behalf of the IBEW, and that after the strike, until his expulsion from the UE, he had engaged in "no activities whatsoever," and had "kept his mouth shut." Minch further testified that about a month later he again had a discussion with Jenkins, at which Murray was present, during which Jenkins informed him that the UE was demanding their discharge for activities after the strike-that "the UE had made a mistake in their first statement" (referring to the charges against Murray dated May 10, 1946), and that "there was another letter sent after that," referring to activities after the strike.' Minch insisted that he "didn't do any- thing to jeopardize [his] status after the strike." Again in August, according to Minch, he and Cunningham were called to meet with Jenkins, and were told that "the UE pressure" for their discharge had become "pretty heavy," and that they had been expelled from the UE. On this occasion, Minch testified, Jenkins asked him how many members he had "signed up in the IBEW," and Minch answered that he "hadn't signed any members" but that "the only thing [he] ever did, [was to speak] in a democratic way during the strike, what [he] thought was right, which was the better union, and the likes of that." withdrawal, that signed by Cunningham at the May 8 meeting was admittedly received In the mail by the respondent on or about the same day. Jenkins testified that therefore the respondent ceased "checking off" Cunningham's UE dues after the strike, though it did continue to deduct UE dues from Minch's pay through July 1946. Cunningham, in view of this, had every reason to suppose that his withdrawal from the UE on May 8, had been perfected. 49 It is undisputed that on June 5, 1946, the UE sent to Murray, Minch and Cunningham notices, by registered mail, to appear for trial before a UE trial committee, on unspecified charges which had been filed against them ; that Murray and Cunningham received such notices ; that such a notice was tendered to, and refused by, someone at Minch's address, and was returned to the sender ; that none of the three appeared at the trial ; that the UE, by letter dated December 10, 1946, informed the respondent of the foregoing facts, which were admitted to Jenkins by the three employees ; and that the UE alleged to the respondent in the December 10 letter that the employees in question had been found guilty of the unspecified charges on June 8, 1946, on the basis of unspecified acts they allegedly com- mitted after May 9, 1946. WESTINGHOUSE ELECTRIC CORPORATION 969 On June 5, 1947, Minch was notified by Maintenance Superintendent Scott that he was being discharged. When Minch asked, "What's the difficulty?" Scott said, "You seem to have some trouble with the Union around here. How- ever, I think you are well set. You can go down to the AFL, and they will have a job for you down there." Minch insisted that he was not "satisfied with an answer like that," and protested to Jenkins against his discharge. The latter told him, "Well, I have no reason other than it is the request of the UE-CIO." Minch then asked Jenkins to "find out what the reason was," and Jenkins replied, "They don't have to supply a reason." During this discussion, accord- ing to Minch, he told Jenkins, "this was all for activities during the strike, and no other time." As has been above set forth, Jenkins testified that his discussions with Murray, Cunningham and Minch did not begin until sometime in September 1946, after he received a letter from Stiefel dated September 23, 1946, asking him to pre- pare a history of the case for use by the respondent's executives in discussing the issue with UE international representatives. It seems more likely to the undersigned that Jenkins began to ask the three employees for information at least soon after receiving the UE's original demand for their discharge on June 12, 1946, for on June 20, Jenkins, in his letter to the UE, stated that "the Company has reason to believe that the three individuals who are alleged to be no longer members in good standing, have been so adjudged because of their activities in support of a rival union, which activities began toward the end of the strike ending May 9, 1946." Minch's recollection as to the time of his discussions with Jenkins may similarly be erroneous since he testified that the first such discussion occurred in May, which was prior to the date of the UE's initial demand for his discharge. In any event, since it is undisputed that such discussions took place before the respondent decided to discharge Minch and Cunningham, it is not essential for a resolution of the issues herein to make a finding as to the precise time when the discussions occurred. It is necessary, however, to resolve the conflicts between the testimony of Jenkins and Minch as to certain portions of the conversations between them. Thus, Minch testified that during one of these conversations Jenkins told him that he had never received a withdrawal from the UE signed by Minch, but that Jenkins had been told by the UE that it had received Minch's withdrawal but that "it had been too late." Jenkins denied having made such a statement to Minch. However, the letter from the UE to the respondent dated December 10, 1946, which Jenkins admittedly saw at "some time" during December 1946, does assert the UE's contention that Minch's withdrawal slip had been received by the UE, but too late to be effective. In view of this, Minch's testimony that Jenkins had told him that the UE was putting forward such a contention seems more credible than Jenkins' denial 60 Jenkins also testified that during one of their discussions, Minch told him that he had not withdrawn from the UE. It will be remembered that Minch testified that during his first conversation with Jenkins he had told the latter that he had signed an IBEW card. Since Minch actually joined the IBEW on May 8, and signed withdrawals from the UE, which he intended to have mailed to the respondent as well as to the UE, it is ex- tremely unlikely that he would have denied to Jenkins that he had joined the IBEW or withdrawn from the UE. Minch testified that throughout his dis- cussions with Jenkins he had consistently maintained that his IBEW activities had ceased by the time the strike ended, and that he had participated in no such 60 Though it is probable that Jenkins told Minch this during a discussion which took place, contrary to Minch's recollection , after December 10, 1946. '970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities after the strike. In contradiction to this, Jenkins testified that during one of their conversations, Minch made the statement that "he had not con- ducted himself in any manner different during [the strike] than he had pre- viously or subsequently." Minch, during cross-examination, flatly denied ever making "a statement like that." His denial is credited . The undersigned credits Minch's testimony with respect to the contents of his conversations with Jenkins, and finds that his testimony, as above summarized, correctly sets forth the substance of those conversations. The facts above set forth concerning the activity of Murray, Minch and Cun- ningham on behalf of the IBEW during the strike; the charges sent to Murray by the UE on May 10, 1946, explicitly stating that lie was accused of having violated the UE constitution "in that [he] attempted to get members of the [UE] to join the IBEW during the strike" ; and the fact that the entire course of corre- spondence between the respondent and the UE, respecting the UE's demand for the discharge of these three employees, reveals that the three were treated as being involved in one case, on the same basis 61 clearly establish that the IBEW activity of Murray, Minch and Cunningham, during an appropriate period, motivated the UE in expelling them and seeking their discharge. In the absence of any evidence to the contrary, the undersigned so finds. In making this finding, the undersigned is not unmindful of the fact that on June 3, 1946, the UE mailed new charges to all three of these employees, and that in the letter of March 6, 1947, written by its general counsel, the UE alleged to the respondent that these new charges, on the basis of which Murray, Minch and Cunningham were expelled, related to unspecified conduct on their part which occurred after May 9, 1946.52 But these circumstances can hardly be said to refute the evidence that it was their IBEW activity during an appropriate period which led to the expulsion of the three employees, and to the UE's demands for their discharge. The allegation by the UE that the new charges related solely to undefined conduct which occurred after a specified date, constitutes no denial that the conduct complained of consisted of activity on behalf of the IIIEW. Indeed, in view of the respondent's repeated prior requests that the UE come forward with evidence to rebut its belief that the conduct for which the three employees were expelled consisted of IBEW activity, the UE's continued failure even to deny this, amounted virtually to an admission that the respondent's belief was justified. Moreover, even with respect to the toning of the conduct charged to the expelled employees, the UE's March 6 letter remained evasive and meaningless. The assertion that the said conduct occurred "after May 9, 1946," informs us of nothing-for, as we have seen, the strike did not end until May 13, 1946; 1 and 51 For example , the letter from the UE general counsel to the respondent , dated March 6, 1947, which is set forth in full above, states that the charges on which Murray , Minch and Cunningham were expelled from the UE , were identical with respect to each of them. cz The letter states that the charges against each of these three employees read as follows : I hereby charge [ the named employee ] with violation of Article 8, Section 1 of the Local Constitution , the District Constitution , and Article 24, Section A of the National Constitution and By-Laws. There is nothing in the record to explain what the above -enumerated sections of the UR constitution and by -laws refer to, nor any indication that the respondent was ever informed as to the substance of such sections . On the contrary, Jenkins, who testified at the hearing that he felt that the aforesaid letter gave "an adequate reason for discharging the employees ," admitted that he did not know what the said sections of the UE constitution and by-laws provided , and that when he "tried to find out, [he ] got the very courteous answer that it was none of [his ] business." 53 It is undisputed that the respondent 's employees did not begin returning to work after the strike until May 13, 1946. WESTINGHOUSE ELECTRIC CORPORATION 971 the period during which rival-union activity was appropriate extended even beyond this date, namely, until May 20, 1946. The record similarly establishes that the respondent knew, or at least had a reasonable basis for belief," that the UE was demanding the discharge of the three employees for the reason that they had engaged in activity on behalf of the IBEW during an appropriate period, and the undersigned so finds. All of the evidence relied on by the undersigned as a basis for finding that the IBEW activity of Minch and Cunningham during an appropriate period motivated the UE's demands for their discharge, was in possession of the respondent prior to the time it effectuated their discharge, and as the correspondence between the UE and the respondent reveals, the respondent was led to the belief by this evidence that the demands for discharge were so motivated. It was on the basis of that knowledge and belief that the respondent for nearly a year resisted the demands for the discharge of the employees involved. After this long period of insistence that for it to yield to the UE's demands for the discharge of the employees would constitute a violation of the Act, the respondent, having been presented with no evidence reasonably calculated to dispel its well-grounded belief as to the reason for the UE's demands," capitu- lated, and on June 5, 1947, discharged Minch and Cunningham. The record contains evidence from which a reasonable inference can be drawn, explaining this about-face. As has been set forth above, on or about February 10, 1947, the UE and the respondent began negotiations leading to renewal of the national agreement between them, involving about 65,000 of the respondent's employees. Previous to that date, the UE had presented the respondent with a demand for a "union-shop" clause to replace the "maintenance of membership" provision in the contract then in force. And during the negotiations the respondent was admittedly very much concerned over the threats made by a UE representative that unless the employees herein involved were discharged, the negotiations for a new contract might be caused to "bog down." It was after this had occurred, as the respondent admits, that the respondent's executives summoned the Cleveland management representatives to national headquarters, and this 64 See Matter of Colgate-Pal9noldve-Peet Co., 70 N . L. R. B 1202, at 1208, and Matter of Lewis Meier & Co., 73 N. L R. B . 520, at 521, with respect to the respondent 's duty to make a bona fide effort to evaluate the evidence before it once it had been put on notice that the rival -union activity of the employees motivated the UE in demanding their discharge. " The respondent attributes its change of attitude to the "new information " presented to it in the March 6 letter from the UE ' s general counsel , which has been hereinbefore referred to. It contends that on the basis of that information , it was convinced that the expulsion from the UE of the employees herein involved , was not because of their IBEW activity during an appropriate period, and that therefore it decided to accede to the UE's demands for their discharge . The preceding discussion has pointed out how this contention lacks substance . But not only is the record barren of evidence that the respondent ever received any information which would reasonably have refuted its previous knowledge as to the basis for the UE 's demands, the only information shown to have been received by the respondent with respect to the contents of the charges on which Minch, Murray and Cunningham were expelled , is that the said charges did relate to their activity on behalf of the IBEW . Thus, Jenkins testified that after the respondent received the letter dated March 6 , 1947, from the general counsel of the UE, he discussed the contents thereof with the three employees involved . During this discussion , Jenkins testified , and the under- signed finds , Jenkins asked Minch whether anyone who had attended the UE meeting at which the three had been expelled , had ever told him "why he had been expelled " Minch answered "that he had been informed by one who was at the meeting that the only evidence which was presented against him had to do with the fact that be had an IBEW card and was a member of that union . And that information was given , according to Mr . Minch, by Mr . Ernest Fields." 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject, and the "importance that [it was felt] there existed to come to a decision on the question," were reviewed. Only after this did the respondent come to its final decision that the request of the UE "was proper, and [the respondent] should act favorably upon the [UE's] request" to discharge Minch and Cunningham. Thereafter, the respondent, still reluctant to effectuate the discharges, requested the UE to reconsider the matter, but assured it that if it pressed the demand for the discharges, they would be put into effect. The obvious inference is, and the undersigned finds, that it was the economic pressure exerted by the UE's threats to make the discharges a condition of successfully reaching an agreement, that finally induced the respondent to accede to the demand that Minch and Cunningham be discharged. Sympathetic as one may be to the respondent's unenviable position, such circumstances afford the re- spondent no defense if, as the undersigned finds below, the discharges were in themselves violative of the Act 68 3. Further defenses advanced by the respondent The respondent places some emphasis on the admitted fact that Murray, Minch and Cunningham did not attend the UE trial, notices of which were sent to them, at which it was decided to expel them from that organization. The Board has held, however, that in a situation such as this, it will "not condition rights under the Act upon the exhaustion by the employees of their intra-union remedies." (Matter of Durasteel Co., 73 N. L. R. B. 941, at 945.) The respondent argues, in addition, that the Rutland Court doctrine should not be applied to the facts herein because such doctrine "has been repudiated ... by the Seventh Circuit Court of Appeals (Aluminum Co. v. N. L. R. B., 159 F. (2d) 523; and Lewis Meier & Co. v. N. L. R. B., 21 LRRM 2093) " ; be- cause the enactment of the Labor-Management Relations Act, 1947, adopted the philosophy of the dissenting opinion to the Board's decision in the Dieier case ; sT and because Section 10 (c) of the Labor-Management Relations Act, 1947, prohibits the Board from entering an order for the reinstatement of, or payment of back pay to, an employee who has been discharged "for cause." The enactment of the Labor-Management Relations Act, 1947, after the date when the discharges herein involved were effectuated, did not, contrary to the respondent's contentions, affect the Board's power to enter a decision and order herein in accordance with the Rutland Court doctrine, nor has such enactment, or the decisions of the Seventh Circuit Court of Appeals cited by the respondent, changed the Board's policy with respect to its application of the aforesaid doctrine to appropriate cases such as this arising under the National Labor Relations Act prior to its amendment. Matter of Gamble-Slcogmo, Inc., 75 N. L. R. B. 1068; Matter of E. L. Bruce Co., 75 N. L. R. B. 522, Cf. Matter of Eaton Mfg. Co., 76 N. L. R. B. 261. The respondent also points to the fact that it resisted the demands of the UE for the discharge of Minch and Cunningham for almost a year, and argues that during that period, its refusal to accede to the UE's demands had the effect of encouraging membership in the IBEW, and discouraging membership in the UE. "Obviously," contends the respondent, "this conclusion is directly 66 See : Matter of Eureka Vacuum Cleaner Co., 69 N. L. It. B. 878, and cases cited In footnote 3 of that decision ; Matter of General Electric X-Ray Corp ., 76 N. L. R. B. 64; Matter of Eaton Mfg . Co., 76 N. L. It. B. 261. sa The respondent takes the position that the Board lacks jurisdiction to proceed in cases such as this , where the contracting union has not been made a party respondent to the proceeding. WESTINGHOUSE ELECTRIC CORPORATION 973 contrary to the Board's theory of the case and the allegations of the com- plaint, and requires its dismissal." The short answer to this contention is that while the effect of the respondent's refusal to discharge Minch and Cun- ningham may have been what the respondent argues, while it persisted in its refusal, such effect was dissipated, and reversed, when the respondent finally yielded to the UE's pressure, and wrongfully discharged the two employees. The undersigned therefore finds no merit in the respondent's aforesaid posi- tion. Finally, the respondent urges dismissal of the complaint, which alleges that the discharges herein involved constituted violations of Sections 8 (1) and (3) of the Act, and Sections 8 (a) (1) and (a) (3) of the Act as amended. In- sofar as Sections 8 (a) (1) and (a) (3) of the amended Act are concerned, the respondent argues that since the discharges occurred on June 5, 1947, prior to the enactment of the Act as amended, there is no basis for a finding of violation of the amended Act. Secondly, the respondent urges, the amended charge herein charges only that the discharges were in violation of Section 8 (a) (1) and (3) of the amended Act, thus furnishing no basis for the allegation in the complaint that Sections 8 (1) and (3) of the original Act were violated. As to the respondent's asserted ground for dismissing the complaint insofar as it alleges violation of Sections 8 (a) (1) and (3) of the Act as amended, the undersigned agrees with the position taken by the General Counsel herein, which is that the continued, unremedied violation of Sections 8 (1) and (3) of the Act, persisting after the enactment of the Act as amended, constituted, after the date of such enactment, violations of Sections 8 (a) (1) and (3) of the Act as amended, which are simply re-statements, in the identical language, of Sections 8 (1) and (3) of the original Act. °8 With respect to the ground urged for dismissing the complaint insofar as it alleges violation of Sections 8 (1) and (3) of the old Act, the undersigned finds no merit therein. Although the amended charge charges only violation of the appropriate sections of the Act as amended, sufficient basis for the issuance of the complaint in its present form exists, in the opinion of the undersigned, because the original charge herein, charges violation of Section 8 (1) and (3) of the old Act. In any event, the amended charge, since it sets forth the facts showing a violation of the relevant sections of both the old Act and the Act as amended, would in itself afford a basis for the issuance of the complaint as it presently reads. The technical factor that it concludes only that those facts constitute a violation of Section 8 (a) (1) and (3) of the Act as amended, would not deprive the General Counsel of the power to frame his complaint as he did, and to litigate the issues herein, as was done, in reference to violations of both the old Act and the Act as amended. The motion to dismiss the com- plaint is hereby denied. On the basis of the foregoing, and the entire record, the undersigned con- cludes and finds that the respondent, by its discharge of Elmer Minch and George Cunningham on June 5, 1947, and by its continued failure to offer them reinstatement, discriminated in regard to their hire and tenure of em- ployment, thereby discouraging membership in the IBEW, and encouraging membership in the UE, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and Section 7 of the Act, as amended. 68 The changes made in the Act as amended , to the proviso to Section 8 (3) of the old Act, are not here material. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, and the Act as amended. It has been found above that the respondent's discharge of Elmer Minch and George Cunningham on June 5, 1947, and its continued failure to offer them re- instatement, constitute unfair labor practices under the Act, and under the Act as amended. It will therefore be recommended that the respondent reinstate them to their former or substantially equivalent positions,69 without prejudice to their seniority and other rights and privileges. It will also be recommended that the respondent make them whole for any loss of pay 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 he would have earned as wages from the date of his discharge from the respondent's employ, to the date of the respondent's offer of reinstatement, less his net earnings 80 during said period. It will also be recommended that the respondent post appropriate notices to its employees in connection with the foregoing. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, A. F. of L., and United Electrical, Radio & Machine Workers of America, C. I. 0., are both labor organizations within the meaning of Section 2 (5) of the Act, and of the Act as amended. 2. By discriminating in regard to the hire and tenure of employment of Elmer Minch and George Cunningham, thereby discouraging membership in Interna- tional Brotherhood of Electrical Workers, A. F. of L., and encouraging member- ship in United Electrical, Radio & Machine Workers of America, C. I. 0., the "In accordance with the Board 's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position ." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 N. L. R. B. 827. 80 See Matter of Crossett Lumber Co ., 8 N. L. R . B. 440, 497-498. The undersigned is not persuaded by the respondent 's arguments in its brief that he should refrain from recommending that the respondent make Minch and Cunningham whole for any loss of pay they may have suffered by reason of their unlawful discharge The Act does not impose penalties ; the orders which are contemplated under it are designed rather to remedy any unfair labor practices found to have been committed. Therefore, the fact that the respondent may, as it contends , have acted in good faith in deciding to discharge these employees , without any wilful intent to violate the Act, is immaterial in framing the remedy. Such attitude on the part of the respondent will be taken into consideration by the undersigned in formulating the cease and desist provisions of the order herein recommended. WESTINGHOUSE ELECTRIC CORPORATION 975 respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act, and Section 8 (a) (3) of the Act as amended. 3. By said acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and of the Act as amended, and has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act, and of Section 8 (a) (1) of the Act as amended. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act, and of the Act as amended. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that the respondent, Westinghouse Electric Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers, A. F. of L., or any other labor organization of its employees, and en- couraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., or any other labor organization of its employees, by discharging or in any other manner discriminating in regard to the hire or tenure of em- ployment or any term or condition of employment of any of its employees, unless obligated to do so by the terms of a valid contract then existing between the respondent and a labor organization of its employees. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act, and of the Act as amended : (a) Offer to Elmer Minch and George Cunningham immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole Elmer- Minch and George Cunningham for any loss of pay 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 de- termined in the manner set forth in the section entitled, "The remedy," above; (c) Post immediately at its plant in Cleveland, Ohio, copies of the notice at- tached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighth Region, after being signed by the respondent's representative, shall be poked immediately by the respondent upon receipt thereof and maintained by it for at least sixty ( 60) consecutive days thereafter, in con- spicuous 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; (d) Notify the Regional Director for the Eighth Region in writing within (10) days from the date of receipt of this Intermediate Report what steps the re- spondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) (lays from the date of the receipt of this Intermediate Report, the recipient notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party m,ay, 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regu- lations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such state- ment of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire per- mission to argue orally before the Board, request therefor must be made in writ- ing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. ISADORE GREENBERG, Date April 14, 1948 . Trial Examiner. APPENDIX A NOTICE TO ALL 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, and of the Labor-Management Relations Act, 1947, we hereby no- tify our employees that: WE WILL NOT discourage membership in INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. of L., or any other labor organization of our em- ployees, or encourage membership in UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. 0., or any other labor organization of our em- ployees, by discharging or in any manner discriminating in regard to the hire or tenure of employment of any of our employees, unless we are obligated to do so by the terms of a valid contract then existing between ourselves and a labor organization of our employees. WE WILL OFFER to Elmer Minch and George Cunningham full and immedi- ate reinstatement to their former or substantially equivalent positions, with- out prejudice to any seniority or other rights or privileges previously en- joyed, and make Elmer Minch and George Cunningham whole for any loss of pay suffered as a result of the discrimination. WESTINGHOUSE ELECTRIC CORPORATION, Dated-------------------- By---------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material.