Horn Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1949

83 N.L.R.B. 1177 (N.L.R.B. 1949)

In the Matter of HORN MANUFACTURING COMPANY, INC., EMPLOYER,
and UNITED FARM EQUIPMENT & METAL WORKERS OF AMERICA,
C. I. 0., PETITIONER
Case No. 18-C-1379.-Decided June 7, 1949
DECISION
AND
ORDER
On February 12, 1948, Trial Examiner Irving Rogosin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions. In addition, the Respondent and the AFL Carpenters
requested oral argument. These requests are hereby denied inasmuch
as the record and brief, in our opinion, adequately present the issues
and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the 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 exceptions, modifications, and
additions set forth below.2
1. The Trial Examiner found, and we agree, that the Respondent
discharged and thereafter refused to reinstate Peter Fritz, Elwood
Nelson, Glenn Larson,9 Cecil Mohler, and the employees named in
"Appendix A," 4 attached hereto, because of their affiliation with or
1 The provisions of Section 8 (1) and 8 (3) of the National Labor Relations Act, which
the Trial Examiner found were violated , are continued in Section 8 (a) (1) and 8 (a) (3)
of the Act , as amended by the Labor Management Relations Act, 1947.
2 The Respondent , in its exceptions , contends that the Trial Examiner erroneously sum-
marized the testimony of the witnesses in an attempt to support his findings , and in particu-
lar has failed to set forth the substance of the testimony of the Respondent 's foremen,
Ewald Grunwald and Morris Coats. We find no merit in these contentions. The failure
of the Trial Examiner to detail completely all conflicts in the evidence does not mean, as
the Respondent infers, that conflicting evidence was not considered . Moreover , we have
Independently considered all the evidence and, while we do not agree entirely with the
Trial Examiner 's resolution of all the issues , we are satisfied that his findings were made
on the basis of all the relevant evidence.
' The reinstatement rights of this employee are separately discussed , infra, paragraph 2.
4 The reinstatement rights of one of these , Darwin Rottman , are separately discussed
infra, paragraph 2.
The Respondent contends , in its brief, that the record in this case should be reopened
83 N. L. R. B., No. 168. 1177
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities on behalf of the FE-CIO, and that the Respondent thereby
violated Section 8. (3) and 8 (1of the Act.
. With respect to the discharge of Fritz, Nelson, and the employees
named in "Appendix A," the Respondent urges as its principal. de-
fense that these employees were discharged pursuant to its union-
security agreement with the AFL Carpenters, and at the request of
the latter union. Although it is true that, for the most part, these dis-
charges followed the expulsion of the employees from the AFL Car-
penters, we, like the Trial Examiner, find that the Rutland Court 5
doctrine is applicable, and that the Respondent's defense is, therefore,
without merit.
The Respondent contends, however, that the dual unionism upon
which the AFL Carpenters relied in requesting the discharges, and
upon which the Respondent relied in acceding to these demands,
occurred near the beginning of a 2-year contract and was therefore not
protected." This contention is based on the theory that the April 23,
1946, amendment of the then existing 3-year contract with the AFL
Carpenters resulted in a new 2-year contract. Like the Trial Exam-
iner, and for the reasons stated in the Intermediate Report, we reject
this theory. We view the April 23, 1946, amendment as having had
no effect upon the duration clause of the original 3-year contract.7 So
to show that the Iowa Employment Compensation Commission had denied the claim of
these employees for unemployment compensation on the grounds that they had left their
employment without good cause. The decisions of the Iowa Employment Compensation
Commission are not binding upon the Board , 'which has paramount initial jurisdiction over
the subject matter herein . See Matter of Williams Davies Co , Inc, 37 N L. R B 631,
643; Myers at at. v. Bethlehem Shipbuilding Corp. Ltd., 303 U. S. 41. Moreover, the
Respondent has failed to demonstrate that the evidence it seeks to elicit was not available
at the time of the hearing or to otherwise indicate a justification for not introducing
it at that time.
5 Matter of Rutland Court Owners, 44 N. L. It. B . 587 ; 46 N. L R . B. 1040
See Matter of Southwestern Portland Cement Company , 65 N. L . R. B. 1.
7 In their concurring opinion Members Reynolds and Gray contend that this conclusion
ignores the fact that the 1946 amendments went beyond the terms of the modification
clause in the original contract , and under our contract bar doctrines the contract was
"opened" and would not bar a representation petition filed at that time. We have not
ignored this consideration . Even if we were to concede , contrary to the Trial Examiner's
finding, that the 1946 amendments did in fact exceed the limits of the modification clause,
we would not find ourselves compelled to hold that these amendments created a new con-
tract. The Board ' s policy of considering contracts "opened, " and no bar to a representa-
tion petition when they are modified beyond the terms of their modification clause, is
based on the theory that in the light of the broad modification of the original contract
beyond that contemplated in the original agreement , industrial stability in the plant has
been reduced to the point where it can no longer be regarded as a factor warranting
withholding from the employees the right to change their bargaining representative if they
so desire. This is far different from saying that the legal effect of the modifications is the
creation of a new contract . Nor can we agree with the assertion of our colleagues that
the Board rejected this rationale in Matter of S & W Fine Foods, Inc ., 74 N L. It. B.
1316. What we rejected there was the contention that the mere existence of a broad
reopening clause in a collective bargaining agreement precludes stability in all bargaining
relationships . We protected a contract which had been reopened within the terms of the
broad reopening clause As the Trial Examiner found , the record contains no substantial
evidence that the parties intended to create a new contract , and the terms of the
amendments militate strongly against such a conclusion.
HORN MANUFACTURING COMPANY,.INC. 1179
viewed, the dual unionism occurred near the end of the second year of
a 3-year contract. Thus, even though, under our policy enunciated in
the Reed, Roller Bit 8 and Puritan Ice 9 decisions, a 3-year contract
may bar a determination of representatives during the first 2 years of
the contract, the dual unionism involved herein was protected "
Nor is there merit to the Respondent's contention that the Board's
dismissal of the FE-CIO's petition in Case No. 18-R-1823 on Novem-
ber 18, 1947, constituted an adjudication that the rival union activities
of the discharged employees occurred at an inappropriate time. The
employees here involved, with the exception of Peter Fritz, were dis-
charged while the petition in question was pending before the Board
and before the Respondent could have known what the Board's deci-
sion would be. Moreover, the FE-CIO petition was not dismissed
on the basis of a contract bar, but because the FE-CIO was not at that
time in compliance with Section 9 (f), (g), and (h) of the Act, as
amended.
Having found that the discharges were not protected by the union-
.security agreement'because of the Rutland Court doctrine, we do not
pass upon the contention, urged by counsel for the Board and adopted
by the Trial Examiner, that because the contract merely required
membership "in good standing," which was narrowly defined, the
contract would not constitute a defense to the discharges in any
event.
2. Although the Trial Examiner found that Glenn Larson, and
Darwin Hottman were discriminatorily discharged at the request of
the AFL Carpenters for wearing CIO buttons and participating in
the picketing, he, denied reinstatement to these employees on the
ground that they had engaged in violence on the picket line. We do
not agree.
In the case of Larson, the record establishes that although during the
course of the picketing he threw a hammer through the window of a
nonstriking employee's automobile, this incident played no part in
the Respondent's decision to discharge him. If, therefore, Larson
is to be denied reinstatement, it must be on the ground that his mis-
conduct was so flagrant as to render him unfit for further service.-
We find that Larson's conduct, although objectionable, was not so
extreme as to render him unfit for further service, and justify his
exclusion from the reinstatement order. Accordingly, we shall in-
'elude him in the reinstatement order.
Matter of Reed Roller Bit Company , 72 N. L R B. 927.
9 Matter o f Puritan Ice Company, 74 N. L. R. B 1311.
10 Inasmuch as we have found that the April 23, 1946, amendment did not result in a
new contract, it becomes unnecessary for us to pass upon the Trial Examiner 's alternative
theory that even if a new 2-year contract resulted, the policy of the Board enunciated in
the Reed Roller Bit and Puritan Ice decisions should not be given retroactive effect in the
circumstances of this case.
" Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. A. 3), aff' d 311 U. S. 7.
See also N. L. R. B. V. Mt. Clemens Pottery Company , 147 F. (2d) 262.
1180 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
In the course of the picketing on March 28, 1947, Hottman damaged
the autombile of a nonstriking employee. However, this incident
occurred 9 days after Hottman had been discharged. Obviously, there-
fore, the incident was no part of the cause for his discharge. As in the
case of Larson, we do not regard the incident as having rendered Hott-
man unfit for reinstatement and we shall include him in the order.
3. The Trial Examiner found that the charges of alleged miscon-
duct by Board agents Shields and McEachern were wholly without
merit. No exceptions have been filed to this finding. Accordingly,
and on the basis of the record as a whole, we adopt the Trial Exam-
iner's finding in this respect.
ORDER
Upon the basis of 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,
Horn Manufacturing Company, Inc., Ft. Dodge, Iowa, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in or activity on behalf of United
Farm Equipment & Metal Workers of America, C. I. 0., or any other
labor organization of its employees, or encouraging membership in
United Brotherhood of Carpenters & Joiners of America, Millmen's
Local Union #1931, A. F. L., or any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire or tenure
of employment, or any term or condition of employment, of its em-
ployees, except insofar as said conduct is protected by the proviso to
section 8 (a) (3) of the Act, as amended.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Farm Equipment & Metal
Workers of America, C. I. 0., or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Peter Fritz, Elwood Nelson, Glenn Larson, Cecil
Mohler, and all of the employees named in "Appendix A," annexed
hereto, immediate and full reinstatement to their former or substan-
HORN MANUFACTURING COMPANY, INC. 1181
tially equivalent positions 12 without prejudice to their seniority or
other rights and privileges :
(b) Make whole the said Peter Fritz, Elwood Nelson, Glenn Larson,
Cecil Mohler, and the employees named in "Appendix A," annexed
hereto,- for any loss of pay they may have suffered by reason of Re-
spondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages during the period from the date of his discharge to
the date of the Respondent's offer of reinstatement, less his net earn-
ings 13 during said period ;
(c) Post in conspicuous places at its plants, copies of the notice
attached hereto, marked "Appendix B." 14 Copies of said notice, to
be furnished by the Regional Director for the Eighteenth Region,
shall , after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material;
(d) Notify the. Regional Director for the Eighteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBERS REYNOLDS and GRAY concurring :
We concur with the results reached by our colleagues in this deci-
sion. Our reasons for reaching this conclusion are, however, at some
variance with theirs. We are of the opinion that the 2-year contract
executed in April 1946 between the Respondent and the AFL Car-
penters was, in effect, a new contract. Our colleagues consider it to
be merely an amendment of the original 3-year contract since there
was no change in the termination date and many substantive provi-
sions remained unchanged. This conclusion ignores the fact that the
changes made in the contract by the parties in 1946 went beyond the
limits provided in the modification clause and that had a representa-
tion petition been filed during the period of these negotiations we
12 The term "former or substantially equivalent positions " Is intended to mean "former
positions wherever possible , but if such positions are no longer in existence, then to sub-
stantially equivalent positions " See Matter of The Chase National Bank of The City
of New York, San Juan, Puerto Rico Branch, 65 N L. R. B. 827.
11 By "net earnings " is meant earnings less expenses , such as for transportation, room,
board , incurred by an employee in connection with obtaining work and working elsewhere
than for the Respondent , which would not have been incurred but for the unlawful dis-
crimination and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R. B . 440. Monies received for work performed upon
Federal, State , county, municipal , or other work -relief projects shall be considered as
earnings . See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7.
14 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order" the words, "Decree of the
United States Court of Appeals Enforcing."
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have considered the contract open and entertained such a
petition.15
We are in agreement that under the principle established in the Reed
Roller Bit case we should not extend the period for which the original
contract will bar a new determination of representatives beyond the
2-year period. We would, however, go one step further and consider
the original contract to be one of 2 years' duration in all respects with
reference to the Board's normal contract bar principles. Conse-
quently, we would regard the 1946 agreement, executed in midterm,
as tantamount to a premature extension of the original 2-year period.
Under well-established principles of the Board, such an extension
clearly could not operate as a bar.16
For the afore-mentioned reasons, we agree with our colleagues that
the employees named in the notice affixed hereto engaged in activi-
ties on behalf of a rival union in a protected period and are therefore
entitled to the remedy we have provided.17
APPENDIX A
Employees discharged March 19,
1947:
Dearl Butrick
Joe C. Beminio
Clair D. Cochran
Fred Campidilli
Richard Dolan
Employees discharged March 19,
1947-Continued
Leslie DeWell
Charles Eastwood
Peter G. Frank
Lloyd Garrod
Hugh Harris
15 See Matter of Olin Industries , Inc , (Western Cartridge Company , Division, East Alton,
Illinozs ) 67 N L R B 1043 ; Matter of United States Vanadium Corporation, 68
N. L R B 389.
We find no support in prior Board cases for the generalized rationale of our colleagues
when they state: "The Board's policy of considering contracts 'opened,' and no bar to a
representation petition when they are modified beyond the terms of their modification
clause , is based on the theory that in the light of the broad modification of the original
contract beyond that contemplated in the original agreement , industrial stability in the
plant has been reduced to the point where it can no longer be regarded as a factor war-
ranting withholding from the employees the right to change their bargaining representatives
if they so desire." In fact, this reasoning has been specifically rejected in the Matter of
S & TV Fine Foods, Inc, 74 N. L R B 1316, where we protected a contract which could be,
and was , opened under a clause which provided for reopening on matters pertaining to
"wages, hours, and working conditions ." Collective bargaining agreements seldom, if
ever, have a broader coverage It is our opinion , not contradicted by any ratumale set
forth in prior Board decisions , that the Board's rules on reopening are more logically
consistent with the theory that modifications which exceed the limits set by the contracting
parties indicate an intent to abandon the origin al contract and make a new one, thus
negating the stability engendered by the original agreement and removing it as an obstacle
to the employees' exercise of their right to select it new bargaining representative
is See Matter of Don Juan, Inc, 71 N L R B 734 ; Matter of Blair Limestone Co,
70 N I.. R B. 689 Although the Board, in the application of its premature renewal doc-
trine, has not permitted a contract preinaturel7 extended to operate as a bar to a deter-
mination at any time after its execution , we are of the opinion that such contract should,
nevertheless , operate as a bar for the term of the original agreement In the instant case,
if the premature extension had been executed after the expiration of the fir't 2 years of the
original 3-year contract and prior to the 'raising of the question concerning representation
herein, we would deem the extended agreement to constitute a bar
17 Cf . N. L. R B v. Geraldine Novelty Company , Inc , 173 F . ( 2d) 14 ( C. A 2, decided
March 15, 1949 , Docket No 20937).
HORN MANUFACTtJitING COMPANY, INC. 1183
Employees discharged March 19, Employees discharged March 19,
1947-Continued 1947-Continued
Paul Harris Richard J. Sheker
Virgil Hearn James J. Tibke
Darwin IIottman Lester L. Christian
Floyd Hoover Orville Schonert
Herman Hipshur Leo Schwinghamer
Lawrence Hiveley Employees discharged March 25,
Arnold P. Johnson 1947:
Robert Lochray Gordon Porter
Robert Laughlin Leonard Baker
Duane E. McCollough Homer Wicks
Donald Murphy Harold Miller
Dexter R. Mongan Virgil Julius
Thomas E. Morgan James Spitler
Richard McDermott Henry W. Miller
Dan O'Connor Dennis Wasko
Paul Peterson Donald Cook
Earnest Rodenberg Carl "Buffington
J. L. Rosicka Manley Klinger
Howard J. Sheker Charles Brown
Ronald Scott Roy L. Miller
Richard Sanden Wayne Hiatt
Floyd Smith John Ondrejka, Jr.
APPENDIX B
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, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations , to join or assist UNITEn FARM EQUIP-
MENT & METAL WORKERS OF AMERICA, C. I. 0., or any other labor
organization, to bargain collectively through representatives of
their own choosing; and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment as authorized in Section 8 (a) (3) of the amended
Act.
WE WILL NOT discourage membership in Ulf ITED FARM EQUIP-
MENT & METAL WORKERS OF AMERICA, C. I. 0., or any other labor
organization of our employees, or encourage membership in
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA,
MILLMEN'S LocAL UNION #1931, A. F. L., or any other labor
organization of our employees by discharging or refusing to rein-
state any of our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment, or any
term or condition of employment, because of their failure to main-
tain membership in good standing in a labor organization, except
insofar as said conduct is protected by the proviso to Section 8
(a) (3) of the Act, as amended.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination : Peter Fritz, Elwood
Nelson, Glenn Larson, Cecil Mohler
and
Dearl Butrick Duane E. McCollough
Joe C. Beminio Donald Murphy
Clair D. Cochran Dexter R. Mongan
Fred Campidilli Thomas E. Morgan
Richard Dolan Richard Sanden
Leslie DeWell Floyd Smith
Charles Eastwood Richard J. Sheker
Peter G. Frank James J. Tibke
Lloyd Garrod Lester L. Christian
Hugh Harris Orville Schonert
Paul Harris Leo Schwinghamer
Richard McDermott Gordon Porter
Dan O'Connor Leonard Baker
Paul Peterson Homer Wicks
Ernest Rodenberg Harold Miller
J. L. Rosicka Virgil Julius
Howard J. Sheker James Spitler
Ronald Scott Henry W. Miller
Virgil Hearn Dennis Wasko
Darwin Hottman Donald Cook
Floyd Hoover Carl Buffington
Herman Hipshur Manley Klinger
Lawrence Hiveley Charles Brown
Arnold P. Johnson Roy L. Miller
Robert Lochray Wayne Hiatt
Robert Laughlin John Ondrejka, Jr.
All our employees are free.to become, remain, or refrain from
becoming members of the above-named unions or any other labor
organization except to the extent that this right is affected by an
HORN MANUFACTURING COMPANY, INC. 1185
agreement in conformity with Section 8 (a) (3) of the amended
Act.
HORN MANUFACTURING COMPANY, INC.,
Employer.
Dated ----------- By -----------------------------------------
(Representative ) (Title)
NOTE : Any of the above -named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for sixty ( 60) days from the date
hereof, and must not be altered , defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Stephen M. Reynolds, for the Board.
Mr. John H. Mitchell, of Fort Dodge, Iowa, for Respondent.
Mr. Harold Fischer, of Fort Dodge, Iowa, for the FE-CIO.
Mr. Francis J. Mullen, of Fort Dodge, Iowa, for the AFL Carpenters.
STATEMENT OF THE CASE
Upon a third amended charge duly filed on April 25, 1947, by United Farm
Equipment & Metal Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the FE-CIO, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eighteenth
Region (Minneapolis, Minnesota), issued its complaint dated April 25, 1947,
against Horn Manufacturing Company, Inc., Fort Dodge, Iowa, herein called
Respondent, alleging that 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' Copies of the complaint and third amended charge,
accompanied by notice of hearing thereon, were duly served upon Respondent,
the FE-CIO, and United Brotherhood of Carpenters & Joiners of America, Mill-
men's Local Union #1931, herein called the AFL Carpenters.2
With respect to unfair labor practices, the complaint alleged, in substance,
that Respondent: (1) on or about February 28, 1947, discharged Peter Fritz;
on or about March 11, 1947, Elwood Nelson ; on or about March 19, 1947, a group
of 37 employees; on or about March 25, 1947, another group of 15 employees;'
on March 31, 1947, and April 3, 1947, respectively, discharged Glenn E. Larson
and Cecil Mohler ; and, since said respective dates, has failed and refused to
reinstate each and all of said employees because of their membership in, and
assistance to the FE-CIO, and because they had engaged in concerted activities
for the purpose of collective bargaining and other mutual aid and protection,
thereby discriminating in regard to their hire and tenure of employment, and
discouraging membership in a labor organization ; (2) since on or about March 1,
i The provisions of Section 8 (1) and (3) of the Act are incorporated in Section 8 (a) (1)
and (3 ) of the Act, as amended by the Labor Management Relations Act, 1947.
2 All references to the AFL, the AFL Carpenters, AFL Carpenters Local, or the Inter-
venor are, unless otherwise indicated, or unless the context otherwise requires , to United
Brotherhood of Carpenters & Joiners of-America, Millmen's Local Union #1931.
3 The names of the employees in each of these two groups are listed in "Appendix A,"
annexed to this Intermediate Report. - ,
1186 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
1947, warned employees against, and discouraged them from, membership and
activities in the FE-CIO ; threatened to reduce hours of work, to close its plant
in the event the FE-CIO were selected as bargaining agent of the employees,
and to discharge those who wore union buttons signifying adherence to the
FE=CIO; and (3) by all the foregoing conduct, interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (1) and (3) thereof.
Pursuant to notice, a hearing was held at Fort Dodge, Iowa, on various dates
between May 12 and June 21, 1947,' before Irving Rogosin, the undersigned
Trial Examiner duly designated by the Chief Trial Examiner. At the commence-
ment of the hearing, motion by counsel for Respondent for leave to file an answer
late was granted over objection of Board counsel. The answer admitted the
jurisdictional allegations, but generally denied the commission of any unfair
labor practices. Upon objection by Board counsel that the answer failed to con-
forin to the Board's Rules and Regulations, requiring "a short and simple state-
ment of the facts which constitute the grounds of defense",5 counsel for Re-
spondent was required to state orally upon the record the grounds of its defense.
Counsel thereupon complied, asserting, in substance, that the employees alleged
to have been discriminated against had been discharged pursuant to the pro-
visions of a valid, existing union-security contract, as amended, between Re-
spondent and the AFL Carpenters. Denial of the remaining allegations was
reiterated. Motion of the AFL Carpenters to intervene was granted without ob-
jection. Over objection of Board counsel, on the ground of absence of provision
therefor in the Board's Rules and Regulations, counsel for the AFL Carpenters
was also permitted to file an answer, asserting substantially the same grounds as
those advanced by Respondent, and otherwise denying generally the allegations
of the complaint.
Thereafter, the Board, Respondent, the FE-CIO, and the AFL Carpenters,
represented by counsel or a lay representative, participated in the hearing, and
were afforded full opportunity to be heard, to examine and cross-examine wit-
nesses , and to introduce evidence bearing upon the issues. During the course
of the hearing, and after the close of the Board's case, a further motion by
Respondent's counsel to amend its answer to allege affirmatively that Glenn Lar-
son and Cecil Mohler were, at the time of their discharge, temporary employees,
and, further, that they were discharged and subsequently denied reinstatement for
good cause, was granted over objection of counsel for the Board, with the assur-
ance that in the event he claimed surprise, he would be afforded an opportunity
to meet the issues thus raised. No such opportunity was thereafter requested.
At the conclusion of its case, counsel for Respondent, for the asserted purpose
of "clarifying its defense and * * * conforming its pleadings" to the evi-
dence adduced, over Board counsel's objection, in effect, renewed the motions to
amend the answer, consolidating and elaborating his earlier motions, and to
allege, with respect to Peter Fritz, that his employment was terminated upon
the ground, in addition to that previously relied on, namely, loss of good standing
under the union-security contract, that his services had been unsatisfactory.
With respect to the remaining employees, Respondent reiterated its original
ground of defense. Ruling on the said motion having been reserved, the same is
hereby granted. Respondent thereupon orally moved to dismiss the complaint in
its entirety, as well as in respect to specific allegations, substantially upon the
ground of failure of proof. Ruling on said motion was also reserved, and is
disposed of by the findings and conclusions hereinafter made.
Prior to the close of the hearing, the undersigned granted, without objection,
I The hearing closed after midnight, June 20, 1947.
b Rules and Regulations, Series 4, effective September 11, 1946, Sec. 203 16; Series 5,
effective August 22 , 1947, Sec. 203.20.
. • HORN MANUFACTURING COMPANY, INC . 1187
the motion of counsel for the Board to conform the pleadings to the proof with
respect to formal matters not affecting the substantive issues. Respondent re-
newed its motion to dismiss, and counsel for the AFL Carpenters moved to
dismiss upon grounds set forth in its answer, and, with respect to certain dis-
charges identified by reference,6 upon the further grounds that the evidence
failed to establish that they were or had been members of the FE-CIO, that the
said union had been authorized to file charges in their behalf, or that they had
acquiesced in, or ratified, the filing of the charges. Respondent, adopting the
grounds urged by the AFL, joined in the motion. Ruling was reserved. Insofar
as the motions are based upon the two latter grounds, they are denied for lack
of materiality to the issues. Ruling on the motion upon the remaining grounds
is disposed of by the findings and conclusions hereinafter made. All parties
declined the opportunity afforded them to argue orally upon the record at the
close of the evidence. They were thereupon apprised of their right to file briefs,
proposed findings of fact and conclusions of law. After the close of the hearing,
upon application of the parties, the time for filing briefs was extended to August
1, 1947, by which date briefs were received from counsel for the Board and for
Respondent. Despite several additional extensions granted, upon application,
to counsel for the AFL, the latest expiring on August 22, 1947, no brief has been
received on behalf of that union. None of the parties has filed proposed findings
of facts and conclusions of law. On September 22, 1947, Respondent filed a motion
to dismiss the complaint on the ground, in substance, that the FE-CIO had failed
to comply with the provisions of Section 9 (h) of the Labor Management Rela-
tions Act, 1947,7 amending the National Labor Relations Act. Ruling on the
said motion having been reserved, the same is hereby denied!
Upon the entire record in the case and upon his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Horn Manufacturing Company, Inc., an Iowa corporation, having its principal
office and place of business in Fort Dodge, Iowa, is engaged in the manufacture,
sale, and distribution of farm machinery and equipment. During the calendar
year 1946, Respondent purchased raw materials, consisting of steel, lumber, and
other materials aggregating in excess of $200,000, of which approximately 80 per-
cent constituted purchases and shipments in interstate commerce from and
through States of the United States other than the State of Iowa to its plant.
During the corresponding period, Respondent manufactured and sold finished
products aggregating in excess of $200,000, of which 74 percent constituted sales
and shipments in interstate commerce from its plant to, through, and into States
of the United States other than the State of Iowa. The volume of raw materials
purchased, finished products sold, and the percentage of each shipped and trans-
ported in interstate commerce to and from the plant through States of the United
States other than the State of Iowa, were in relatively the same proportions for
6 All except those who had testified at the hearing.
7 Cited by Respondent as Title 29, Chapter 7, U. S. Code Annotated, Section 159 (h),
requiring the filing of the so-called non-Communist affidavit.
The power of the Board to proceed to the issuance of a decision and order upon a com-
plaint such as that here involved, where the charging union has not complied with the
provisions of Section 9 (f), (g), and (h) of the Act, as amended by the Labor Management
Relations Act, 1947, was decided by the Board in Matter of Marshall and Bruce Company,
75 N. L. R. B. 90.
1188 DECISIONS ,-OF NATIONAL LABOR RELATIONS BOARD
that part of the year 1947 Involved in these proceedings. All parties concede that
Respondent is engaged in commence within the meaning of the Act.'
II. THE ORGANIZATIONS INVOLVED
United Farm Equipment & Metal Workers of America, affiliated with the Con-
gress of Industrial Organizations , and United Brotherhood of Carpenters &
Joiners of America, Millmen's Local Union" j#1931, affiliated with the American
Federation of Labor, are labor organizations admitting to membership employees
of . Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The business of Respondent was originally established in 1909 by Paul E. -Horn,
father of Herbert J . Horn, now president and general manager of the corpora-
tion ; Walter J. Horn, vice president in charge of research, fabrication, and plant
improvement ; Robert P. Horn, in charge of plant facilities ; and Frederic G.
.Horn, secretary, in charge of sales organization. From the date of its inception
until about 1922, the business consisted of the manufacture, sale, and installation
of store and bank fixtures ; from 1922 to 1945, the manufacture, sale, installation,
and erection of folding partitions , bleachers , hangar doors- and automatic devices
used thereon for the U. S. Army and Navy. Some of these products were based
on inventions developed by Paul E. Horn, in collaboration with his son, Walter
J. Horn, and originally protected by letters patent. Prior to World War II, the
folding partitions were manufactured for and sold to public schools throughout
various parts of the country.' Respondent's activities, until 1945, covered the 48
States, Canada , and South America. Respondent's plant and business offices, at
that time, were located at a site on Central Avenue, Fort Dodge, generally referred
to as the "old" or "downtown plant," where some activities, including research
and engineering , are still maintained.
Since 1945, Respondent has been engaged in the manufacture of farm equip-
ment, " such as steel wagon boxes , hydraulic loaders, tractor seat snubbers, and
the like, some of which are manufactured for Sears, Roebuck and Co., under the
trade name "David Bradley," and others, under Respondent 's trade name "Horn-
draulic." Early in 1946, construction was started on a new plant on the outskirts
of Fort Dodge. The building was completed for partial occupancy in October or
November 1946, when the offices were moved to the new plant. Manufacturing
operations were transferred soon afterward, and, at all times material since,
principal manufacturing operations have been conducted at the new plant 1°
Labor relations and personnel policies have been conducted principally by Presi-
dent Herbert J. Horn and Vice-President Robert P. Horn, with the assistance,
since his employment in September 1945, of Personnel Manager Alfred W.
Parsons.
The record , as disclosed by President Horn's testimony , reveals that prior
to May 25, 1945, the date of the original contract here involved , Respondent's
predecessor partnership, operated under a closed-shop agreement with the AFL
Carpenters with respect to' woodworkers. According to Horn's testimony,
although that labor organization was always able to furnish qualified wood-
workers, it was not , during seasonal peaks, after the execution of the May 25,
1245, contract, always able to furnish qualified metal workers. In addition, all
° These findings are based upon the admissions in Respondent's answer to the jurisdic-
tional allegations of the complaint , and the stipulation of the parties at the hearing
10 In connection with its operations , Respondent conducts experimental stations In
Nebraska , and, for the testing of farm equipment in the field, in Iowa.
HORN MANUFACTURING COMPANY, INC. 1189
-erection or installation of work outside the plant, within the jurisdiction of the
-AFL Carpenters, has, by agreement, been performed by members affiliated with
that union, having jurisdiction over the work performed.
On April 13, 1945, the date of the consent election hereinafter mentioned, there
were employed, at Respondent's plant 79 persons eligible to vote. By February
1947, when the events hereinafter related commenced, there were approximately
250 production and maintenance employees at the plant 11
B. Chronology of events
As a result of the determination by the Regional Director on April 19, 1945,
followed a consent election on April 13, 1945, upon a representation petition filed
by the FE-CIO," the AFL Carpenters achieved exclusive collective bargaining
status as representative of Respondent's production and maintenance employees.
Negotiations followed, culminating in a contract dated May 25, 1945,1° for a term
of 3 years, expiring May 31, 1948, and providing for a combination of closed shop
and preferential hiring, and compulsory check-off. On April 23, 1946, pursuant
to a provision permitting reopening of the contract for renegotiation of wages
and overtime, the plirties executed an amendment covering wages and vacations,
and modifying the union-security provisions.
. In the summer of 1946, Harold Fischer, international representative of the
FE-CIO, arrived at Fort Dodge on a campaign to organize employees at several
plants in the area, including that of Respondent. Early in December, Fischer
communicated with Frank Maben, an employee of Respondent, president since
June 1945, of the AFL Carpenters Local at the plant, and, until its defeat in the
consent election in April 1945, an active member of the FE-CIO. Soon afterward,
Maben, accompanied by Peter Fritz, an AFL Carpenter shop steward and mem-
ber of the grievance committee, met with Fischer and discussed the prospect of a
change in bargaining representative. Recounting the bargaining history at the
plant, Maben acknowledged that some dissatisfaction with the existing contract,
and lack of assistance from the parent AFL organization, existed among em-
ployees at the plant. Asked by Maben his opinion regarding the likelihood of a
"change over to the CIO," Fritz, though admitting the possibility, counselled more
effective representation by the incumbent union instead. Fischer, however, urged
the advantages of representation by the FE-CIO, as an organization which, in
contrast to the AFL Carpenters, specialized in the problems of farm equipment
workers. According to Maben, Fischer told him that if he would "sit tight" and
abstain from taking "an active part" in any contest between the CIO and AFL,
the FE-CIO could succeed in displacing the AFL with little difficulty. Maben
informed Fischer that since he was chairman of the AFL Local, he could do
nothing to assist the FE-CIO : that he regarded such activity as inopportune in
11 The findings in this section are based on the combined , undisputed and credited testi-
mony of Herbert J Horn, Walter J. Horn, Robert P. Horn, Frederic G. Horn, Alfred W.
Parsons , and FE-CIO Representative Harold Fischer.
12 Matter of Horn Manufacturing Company, Case No 18-R-1234
13 The business was then conducted as a partnership , comprised of Herbert J Horn,
Frederick G Horn, Walter J. Horn, Robert P. Horn, and their respective wives, doing
business under the firm name of Horn Manufacturing Company. The agreement was ex-
ecuted on behalf of the company by Herbert J. Horn . In the summer of 1946, the business
was conveyed to a corporation , Respondent herein, which assumed all the assets and liabili-
ties of the partnership , including specifically the outstanding contract with the AFL
Carpenters . The men became the officers , and with their respective wives , directors of the
corporation . The business was continued without interruption or substantial change in
the nature of its operation, excepting that resulting from expansion . No material change
in the personnel or labor policies resulted from the change in legal ownership , and no issue
is raised herein as to the obligation of Respondent to perform the conditions of the contract
with the AFL Carpenters in the place and stead of the former partnership.
844340-50-vol. 83-76
1190 DECISIONS OF NATIONAL LABOR'; RELATIONS BOARD
view of the contemplated reopening of negotiations ; that any action at that time
would "tie up all negotiations and [that] nobody [would] benefit by it." Never-
theless, in response to Fischer's request, at a subsequent meeting at local CIO
headquarters, Maben produced for Fischer's inspection a copy of the existing
collective bargaining agreement, portions of which Fischer copied with Maben's
permission.14
Later that month, Fischer enlisted the aid of members of the United Packing-
house Workers of America, affiliated with the CIO, employed at the Tobin Pack-
ing Company in Fort Dodge, in organizing Respondent's employees. Among
those assisting in this campaign were George Fritz, brother of Peter Fritz,
Robert Oleson, and Art Bieggers. Soon after the first of the year, 1947, a small
group of Respondent's employees met at a local hotel, and organizational plans
were formulated. Further organizational meetings were held in January and
February at the union hall of the United Packinghouse Workers, referred to
herein as the CIO Hall, and membership was solicited among employees.
Early in February, on an occasion when Robert Laughlin, on a company
errand, was riding in a truck with Foreman Ewald Grunwald, the latter warned
that "all men that signed in the C. I. O. would be discharged."
In about mid-February, Foreman Maurice Coats, overhearing a discussion be-
tween Employees Peter G. Frank and Leslie DeWell regarding the CIO, remarked,
"If the C. I. O. get in [to the plant] the whole damn lot of us will get fired." "
On February 28, following a trial by the AFL Carpenters, upon charges of dual
unionism, Peter Fritz was discharged."
On March 3, 1947, the FE-CIO notified Respondent by letter of its claim of
majority, requesting it to refrain from dealing with any other labor organization
until the question concerning representation had been determined by the Board.
This was followed, next day, by the filing of a formal petition for investigation and
certification of representatives with the Regional Office.37 On March 10, the FE-.
CIO again wrote Respondent, requesting a bargaining conference on March 18.
The use of company property for AFL Carpenters meetings, allegedly with Re-
spondent's permission , was also protested in the same communication, and re-
quest made that a similar privilege be accorded the FE-CIO. Through its counsel,
Respondent by letter, dated March 14, notified the FE-CIO that Respondent was
'under contract with Local 1931 of the AFL Carpenters, expiring May 31, 1948,
and declined to negotiate until the question concerning representation had been
determined.
Meanwhile, on March 11, Respondent, acceding to the demand of the AFL
Carpenters, discharged Elwood Nelson, under circumstances hereinafter related."
On the afternoon of March 18, 1947, a conference was held at Respondent's
plant, at the instance of Regional Director James M. Shields, in an effort to
resolve the dispute between the contending labor organizations by a consent
election. Management officials, Respondent's counsel, representatives of the
14 The findings regarding the meeting of Maben and Fritz with Fischer, and Maben's
subsequent meeting with Fischer are based upon a synthesis of the testimony of Fritz,
Fischer, and Maben.
11 The findings respecting the remarks of Foremen Grunwald and Coats are based on
the credited, though denied, testimony of Laughlin, and Frank and DeWell, respectively.
The responsibility of Respondent for these remarks is discussed hereinafter. See
footnote 64
11 See Section C. 1. Discrimination in regard to hire and tenure of employment.
17 Hearing on this petition, docketed Case No. 18-R-1823, was subsequently held, upon
the filing of the customary waiver by the FE-CIO, on April 22 and 23, 1947 No decision,
-however, has issued , the petitioner having been administratively dismissed on November 18,
1947, for noncompliance with Section 9 (f), (g), and (h) of the Labor Management
Relations Act, 1947
21 Section C. 2 Discrimination in regard to hire and tenure of employment.
HORN MANUFACTURING COMPANY,. INC. 1191
AFL Carpenters and their -counsel attended. FE-CIO Representative Fischer
and a committee of employees, although invited, and present in the reception
room awaiting a summons to attend the conference, were not permitted to be
present because of the intransigence of the AFL Carpenters representatives in
meeting with FE-CIO representatives. At the conference, counsel for the AFL
Carpenters vigorously maintained that the existing contract was, in effect, a
new contract for a 2-year term from April 23, 1946, and, therefore, 'constituted
a bar to any election, contrary to the position of the Regional Director that the
'contract, as amended, remained, a 3-year contract, commencing May 25, 1945,
hence, of unreasonable duration, and no bar to an election after the end of the
first year. The conference ended without success, and Shields reported to
Fischer that the parties were in irreconcilable conflict. Later that evening, at
,CIO headquarters, Shields received from Fischer an unfair labor practice charge,
alleging the discriminatory discharges of Peter Fritz and Elwood Nelson, as well
as the commission of other unfair labor practices.
That night, at an FE-CIO meeting, held while Shields was interviewing Fritz
and Nelson in an adjoining room, a decision was reached by those present to
"come out in the open" and don CIO campaign emblems at the plant next
morning.
That morning, Shields notified Respondent's counsel of the filing of the charge,
as well as its contents, informed him that since confirming his own position with
an attorney from the Regional Office who happened to be in town, Shields was
convinced that his theory of the case was correct, and advised that any
further discharges by Respondent would be at its peril.
On the morning of March 19, 37 FE-CIO adherents, employees of Respondent,
conspicuously displayed CIO campaign badges at the plant. At a special meet-
ing of the AFL Carpenters held at the plant during working hours later that day,
all 37 employees were summarily suspended from membership in that union, and,
on demand of the AFL Carpenters, discharged by Respondent, at the close of their
shift.
On March 24, Field Examiner Aubrey McEachern arrived at Fort Dodge
to investigate the pending representation petition and unfair labor practice
charges. A conference at Respondent's plant with company officials and rep-
resentatives of the AFL Carpenters to attempt settlement of disputed issues
failed. At a meeting of the FE-CIO that night, it was decided that an addi-
tional group of FE-CIO members or adherents would wear CIO campaign
buttons at the plant the next day. Consequently, a number of employees
appeared at the plant displaying the badges. As they punched in, representa-
tive of the AFL Carpenters took their names and badge numbers, and as in the
instance of the earlier group discharged on March 19, the latter group was
suspended by the union, and discharged later during the day.
Thereafter, on the morning of Friday, March 28, pursuant to a previous de-
cision, the discharged employees, as well as FE-CIO sympathizers, began to
picket the plant. Picketing continued that day, and until about noon the
following day, when an injunction was obtained by Respondent.
Glenn Larson, who had been active on the picket line, returned to work on
March 31, reporting at the usual time. He was discharged during the early
forenoon. On April 3, Cecil Mohler was also discharged.19 Both were tempo-
rary employees, who had previously worn CIO campaign badges at the plant.
Hearing on the representation petition of the FE-CIO was held at Fort
19 These discharges, as well as those of the two groups of employees discharged on March
19 and March 25, respectively , are discussed hereinafter under Section C, 3, 4, 5 and 6.
Discrimination in regard to hire and tenure of employment.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dodge on April 22 and 23, 1947. The AFL Carpenters intervened and par-
ticipated.RO
C. Daacrimina 'tion in regard to hire and tenure of employment
1. The discharge of Peter Fritz
Peter Fritz had been employed by Respondent for approximately a year
when he was discharged on February 28, 1947 . He started as a welder on
the night shift, continuing in that job until about the first of October, 1946,
when he was transferred , at Personnel Manager Parsons' request, to a job as
electrician on the day shift . He remained at that job until early in February,
1947 , at which time he was assigned the job of welder on the day shift. He
was informed when hired that Respondent was under contract with the AFL
Carpenters, and that he would be required to join that union at the end of
30 days. When the time arrived , he paid his initiation fee and first month's
dues to the shop steward on the night shift , on which he was then employed,
and was initiated as a member of the union.
In April 1946 , Fritz himself became a shop steward on the night shift,
responsible for the collection of dues from employees on that shift until some
time in the late summer or early fall of 1946 , when the check -off was first
enforced.
In December , as already related, Fritz, in the company of Maben , conferred
with FE-CIO Representative Fischer regarding the prospect of a change in
bargaining representative . Dissatisfaction with their bargaining representa-
tive , according to Fritz, continued to mount among employees , and many of
them, aware of his former affiliation with the FE-CIO, consulted him with
regard to a change in representation . During January and February, he at-
tended organizational meetings, and in mid -February , signed a membership
application in the FE-CIO, and enrolled several other employees . During this
period, however , Fritz continued to serve as a member of the AFL Carpenters
Local grievance committee , and, with Shop Steward Charles Eastwood,' suc-
cessfully prosecuted a grievance on behalf of one of its members 21
On February 10, 1947, Fritz was defeated as a candidate for recording secre-
tary of the AFL Carpenters in a special election to fill a vacancy . The following
week, February 17, at a special meeting attended by R. E . Roberts, executive
board member of the fifth district of the AFL Carpenters , charges of creating a
dissension within the local union were preferred against Fritz . Trial upon
these charges was scheduled for the next regular meeting on February 24.
Again , Roberts attended . At this meeting, two of the five members, whose
names were subscribed to the charges , disclaimed that they had preferred
charges against Fritz, and denied that he had solicited them to join the
FE-CIO . This, according to Fritz , was the first knowledge communicated to
him that his activities on behalf of a'rival organization had formed the basis
of the charges.
On February 27, Frank Maben and George C. Plager , Jr., familiarly known-
as "Whitey,'-' president and financial secretary , respectively , of the AFL Car-
penters Local, notified Fritz that his trial was to be held at 5 p. in. the fol-
lowing day. That morning , Friday, February 28, Fritz protested to Maben_
and Plager that he had not received notice of his trial by registered mail as
R0 Sep footnote 17.
21 In connection with this grievance, Maben had remarked to Fritz that "he didn't give a
damn whether the union went to bat for [that member]" because he believed that he was
'a CIO man. Pritz-took issue -with - Maben, remonstrating that until a member's adherence-
to the CIO was proven, his good standing should remain unimpaired, and insisted om
prosecuting the grievance.
HORN MANUFACTURING COMPANY, INC. 1193
required in the AFL Carpenters' constitution. Such notice, accompanied by
a copy of the charges, was delivered at Fritz' home later in the afternoon.
Meanwhile, Fritz, having reported to his foreman that he was ill, received
permission to leave the plant, returning at 5 o'clock to attend his trial.
The trial, held in the stock room situated on the balcony of the plant, lasted
from shortly after 5 o'clock to about 11:30 that night. Express permission
for the use of plant premises had been obtained earlier from Personnel Manager
Parsons, after consultation between Parsons and President Herbert Horn.
Although Parsons disclaimed any knowledge of the purpose of the union meeting
at the time permission was granted, he admitted that he had overheard from
employees during the afternoon, before the meeting began, that it was in connec-
tion with the trial of Fritz. When the day shift ended at 5 o'clock, a substan-
tial number of employees on that shift congregated on the balcony to await the
trial. Except for an interval between about 5: 30 and 7: 30, when Herbert Horn
and Parsons were away from the plant, Respondent's officials Herbert Horn,
Walter Horn, Robert Horn, and Parsons were at the plant during the entire
period the union meeting was in progress. It is found, as contended by Re-
spondent, that their presence at the plant, by prior arrangement, for the purpose
of conferring on production problems, was not unusual. Respondent's interest
in the outcome of the trial, however, is evident from the exchange between
President Horn and Fritz' brother which occurred later that night. While the
record sufficiently establishes that at no time during that night were any of
Respondent's officials in or near the stockroom where the trial was being held,
it is apparent that these officials were aware that the union meeting involved the
trial of Fritz upon charges affecting his good standing in the AFL Carpenters.
Fritz arrived at the plant at about 5 o'clock, accompanied by his brother,
George, Robert Oleson, and Art Bieggers, members of the Packinghouse Workers,
employed at the Tobin Packing Company. On instructions from Maben, they
entered the plant during the change of shifts, but soon afterward were ordered
to leave by Personnel Manager Parsons, acting on instructions from President
Horn. George Fritz thereupon asked to meet the company officials and, after a
perfunctory introduction, he and his colleagues were asked to leave by President
Horn. Despite George Fritz' statement that they were entitled to be there as
witnesses on behalf of the accused, pursuant to the AFL Carpenters' constitu-
tion, Horn reiterated his request that the men leave. George Fritz countered
with a threat of charges of collusion between Respondent and the AFL Carpen-
ters, if denied admittance, and Horn rejoined with a deprecatory remark about
Fritz' intelligence. Finally, after Maben was summoned and substantiated
Fritz' position by reference to the union's constitution, the men were permitted
to remain, and subsequently testified at the trial.
When the trial concluded at about 11: 30 with the meeting apparently in
recess, George Fritz left. On his way downstairs, he encountered Jack Duane
Kallansrud, chairman of the trial committee, returning from the general direc-
tion of the company offices, where the rest room was also located. Fritz attempted
to intercept him to ascertain whether the trial committee intended to reach a
verdict, but Kallansrud ignored him. Immediately afterward, Fritz observed the
Horn brothers approaching from the same direction " As Fritz was about to leave
28 On the basis of this evidence the undersigned was, in effect , asked to infer that Kallans-
rud had reported to management officials what had transpired at the trial and the probable
outcome. While the circumstances are suspicious, the evidence is insufficient to justify such
a finding, particularly in view of Kallansrud's testimony that he had left the meeting to
visit the rest room and was returning when he met Fritz ; that he had not seen or talked
to any of the Horns during that interval, a fact corroborated by Herbert Horn, at least,
as to him ; and that no verdict was reached by the trial committee until about half an hour
after he returned to the meeting.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant, President Horn questioned him concerning the progress of the trial and
his opinion as to the outcome.` Characterizing the AFL Carpenters as "a bunch of
good [company] stooges," Fritz replied, "You know how it is going to come out.
As far as a verdict, they haven't taken a vote among themselves. Usually a trial
committee takes a vote among itself to decide whether a man is guilty or not.
Evidently in this case the man was guilty before the trial started."
Peter Pritz had, in the meantime, joined his brother and Oleson, and then
left for his brother's car. He returned, however, when he observed his brother
and Oleson still talking to President Horn, in time to hear George boast that
the CIO would succeed in getting into the plant. When Peter urged the men to
leave and discontinue the argument, Horn retorted that he never argued, and,
addressing himself to Peter Fritz, told him that he was discharged, and to "get
his time." Asked by both George and Peter Fritz the reason for this action,
Horn stated that a "law [had been] passed in Washington" that morning affect-
ing jurisdictional disputes, and that Fritz was fired. Peter Fritz observed that
he was unaware of any such "law," and added that if that was not the fact,
Horn would hear from him. Questioned by George as to which "law" Horn
meant, the latter referred him to an item. which had appeared that morning
in the Des Moines Register, a newspaper. in circulation in Fort Dodge.' George
thereupon asked Horn to furnish them with that statement in writing, but Horn
remarked that was unnecessary, adding, "the rest of you boys can be the wit-
nesses." Continuing Horn stated that he had given Peter Fritz "every possible
break around here, but he wouldn't get into line." Peter retorted, "If being
a company stooge or being a company boy is being in line, you will never get
me in line," adding, "as far as giving me a break is concerned, all you ever gave
me was a job and I figured I had earned every dollar they bad paid me." Horn
disputed this, contending that production had decreased since Fritz had come to
work at the plant as, he maintained, the records would establish. He declined,
however, to explain in what way Fritz had been responsible for the decrease
in production, or to discuss the matter further, reiterating that Fritz was fired.
Soon afterward, Horn, at Peter Fritz' suggestion, notified Personnel Manager
Parsons that he had just fired Fritz "for disrupting production." Further re-
criminations ensued regarding the conduct of the trial, and when George Fritz
charged Respondent with collusion with the trial committee, Horn ordered the
men from the plant, and they left. Next morning, Parsons removed Fritz'
time card and had his pay check prepared.
On Monday, March 3, Fritz prepared a written grievance, asserting that he had
been discharged in consequence of "the law [which had been] passed" regarding
"jurisdictional disputes." Fritz, accompanied by Shop Steward Marico Campi-
23 The importance which Respondent attached to the outcome of Fritz' trial is evident
from the credited, though contradicted, testimony of Gordon E. Porter, that on the night
of the trial, soon after he observed Foreman Grebel talking to the Horns, Grebel told Porter
that "one of the Horn brothers" had stated that if the "Carpenters union . . . lost this
case they would close down as of midnight.
24 Reference was apparently to a newspaper account appearing in the Des Moines Register,
under date of Friday, February 28, 1947, containing a purported summary of the Board's
Decision in Matter of Reed Roller Bit Company (72 N. L R. B 927), under the headline,
"NLRB Okays Long-Term Labor Pacts," and the sub-headline, "AGAIN REVERSES OLD
DECISIONS." When he reached home, George Fritz, after searching in the newspapers
for an article with a Washington dateline "pertaining to labor law," concluded that the
article just mentioned was the one to which Horn had reference. The copy received in
evidence, without objection as to authenticity, had been clipped by Fritz from the edition of
the newspaper in which he had read it.
Upon the basis of the credible testimony of George Fritz, the undersigned finds, despite
Horn's denial, at first, and uncertainty, later, that the copy received in evidence was the
article to which he had referred, that it was in fact the article in which Horn intended In
the conversation under discussion.
HORN MANUFACTURING COMPANY, INC. 1195`
dilli, presented the grievance to Parsons, but was informed that the grievance
would have to be submitted to a six-man committee. Several days later, at a
meeting held for that purpose, Herbert Horn, Robert Horn, and Parsons repre-
sented mangement, and Robert Herbert, Clifford Whitten, and Lloyd Garrod.
appeared on behalf of the union 25 Fritz himself was not present. President Horn
complained of Fritz' frequent visits to the rest room, when he was followed by
other welders, and charged that he had been attempting to induce a slow-down.,
Despite that the union grievance committee, ostensibly acting in Fritz' interest,.
had admittedly made no investigation of the merits of the company's charges
against Fritz, beyond discussion within the committee, and had not even dis-
cussed the grievance with Fritz, they hastened to sanction management' s decision.
Whitten, a maintenance employee, and chairman of the grievance committee,
testified, however, that he had observed Fritz in the washroom several times, and
talking to employees on half a dozen other occasions, while Fritz had been a
member of the grievance committee, but admitted that he was unaware of the
subjects of their discussion. Whitten also admitted that he had never heard that
Fritz had been warned about his alleged derelictions. Personnel Manager Par-
sons testified that Whitten and Herbert conceded that Fritz had engaged in the
conduct complained of,.and that Garrod had remarked that if that were true, the
discharge was justified, adding that Fritz was more concerned with obtaining
unemployment compensation than reinstatement to his job. Inasmuch as the
trial committee of the AFL Carpenters had already found Fritz guilty of dual
unionism only several days earlier, it is not surprising that his grievance received
only perfunctory presentation by the union's grienvance committee.
On the evening of March 10, the trial committee of the AFL Carpenters formally
reported to the membership the verdict of guilty against Fritz. Oral notice of
his expulsion, as well as that of Elwood Nelson, was given Respondent the fol-
lowing morning, and, on March 19, this was confirmed in writing by the union.
Respondent's contentions regarding Fritz' discharge
As has already been, stated, Respondent's answer, filed at the outset of the
hearing, pleaded only general denial. In his oral statement on the record of the
grounds of defense, comprising some seven pages in the official report of the
proceedings, Respondent's counsel asserted, in substance, that, except for five
named persons," claimed to have been temporary employees, and, consequently,
not subject to the contract, the remaining employees had been discharged, on
demand of the AFL Carpenters, pursuant to a valid union-security contract,
as amended 24
25 Fritz, who had himself been a member of the grievance committee , had resigned after
the meeting of February 17, at which charges against him had been read. According to
his testimony, the grievance committee then consisted of Milton Wilcox, Clifford Whitten,
and Lloyd Garrod. Robert Herbert testified that Wilcox appointed him to serve in his
stead because Wilcox had acted as prosecutor at Fritz' trial . Garrod, a welder , who had
acted as Fritz ' counsel at the trial , was among those later discharged on March 19.
26 Glenn Larson, Leo Hart, Cecil Mohler, Ronald Enfield, and Lloyd Lakin, referred to
hereinafter
21 To ensure that counsel had not inadvertently included , among the group , employees
not intended , the following colloquy occurred :
Trial Examiner RocosiN . . .
I note , however , that the complaint also alleges the discharge of one employee on
February 28, another on March 11, still another on March 31, and the last on April 3.
Is their situation different from the situation regarding the employees in the groups
on March 19 and March 259
Mr. MITCHELL . Where do those names appear in the complaint?
Trial Examiner RocosiN. On page 3 of the copy of the complaint which I have.
Peter Fritz , February 28 ; Elwood Nelson, March 11 ; Glenn E . Larson, March 31, and
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent thereafter made no contention that Fritz had been discharged
for any reason other than his alleged loss of good standing in the AFL Carpenters
until after Board counsel had rested, when, during the course of its case, Re-
spondent 's counsel sought to adduce evidence tending to show that Fritz' pro-
duction has been unsatisfactory , that he had disrupted production , had wasted
time by frequenting the rest room excessively , and engaging employees in dis-
cussions there.' Respondent 's answer was thereupon treated as having been
amended in this respect , and the evidence received , over Board counsel' s objec-
tion, with the assurance that he would be afforded a reasonable opportunity to
meet the issues thus raised in the event he deemed it necessary 29
• Analysis of the evidence concerning Fritz' allegedly unsatisfactory services
discloses no complaints against him prior to October 1946, when he was trans-
ferred from his job as welder to the job of electrician in the cafeteria then under
construction . He continued on that job until early in February 1947, when, inci-
dentally , his activity on behalf of the F3-CIO,became intensified . According to
Horn , however, notwithstanding that his work as electrician had been unsatis-
factory, he did not discharge or even discipline him, allegedly because work on
that project was nearing completion . While Horn did not particularize in what
respect his work had been unsatisfactory during this period, he testified that he
had observed Fritz going to the locker room on two or three occasions , followed
by other employees . After he returned to his job as welder , Horn testified, he
observed that Fritz was "slow ," and concluded that production was being
Cecil Mohler, April 3 It may be that their situation Is different from that of the
other employees, but I wondered whether you were prepared to make some statement
with respect to them.
Mr. MITCHELL . We take the position at this time that their situation is no different
thdn those referred to.
Trial Examiner ROO0SIN. That they were discharged, in effect, for failure to main-
tain membership in good standing in the Carpenters and Joiners Local 1931, is that
substantially your position?
Mr MITCHELL. Yes, sir. [Italics supplied.]
28 Further support for the conclusion that Respondent place no substantial reliance upon
dissatisfaction with his services as a ground for Fritz' discharge, is indicated by Re-
spondent's position in a reply dated April 10, 1947, to an inquiry from the Regional Office
as to the reasons for the discharges of all 56 employees , Including Fritz. In this com-
munication , Respondent , In effect, relied solely on loss of good standing of the employees
involved under the union-shop provisions of the contract. Although Respondent attempted
to repudiate the letter on the ground that George K. McCollough, Respondent's auditor,
and writer of the letter, had undertaken to answer the inquiry from the Regional Office
without authority, the record discloses that McCollough was auditor, in charge of the
accounting department, and the company's pay roll and finances, with direct supervision
over more than 18 office employees ; that data regarding employment history were main-
tained in his department; check-off of dues handled by him personally; and notices of loss
of good standing in the contracting union channeled through his department . Moreover,
McCollough's testimony discloses that he had learned of the FE-CIO activities, soon after
their inception, through discussions with employees ; that he had discussed union activities
with management officials ; had attended management conferences involving labor policy ;
had attended negotiations culminating in the execution of the contract with the AFL
Carpenters; and had himself, at the direction of President Horn, dictated and prepared
the amendment to the original articles of agreement, mentioned elsewhere The record
amply establishes, and the undersigned finds, that McCollough possessed real, as well as
ostensible, authority to act on behalf of Respondent, and to bind it by his admissions
29 Respondent's counsel contended that this aspect of its defense with respect to Fritz
had been covered in an amendment regarding other employees. In any event, he maintained
that he was entitled to offer this evidence under the general denial. The amendment in
question, however, was made by Respondent's counsel during cross-examination of Glenn
Larson, and was for the purpose, stated by counsel at the time, of alleging affirmatively
that in addition to the fact that they had been only temporary employees, the employment
of Larson and Cecil Mohler was terminated for good cause, and that reinstatement was
later denied them because they bad allegedly engaged in violence on the picket line, as
discussed hereinafter.
HORN MANUFACTURING COMPANY, INC. 1197
"pegged" on that job. Here, again, Horn testified, he, observed that Fritz fre-
quented the washrooms, followed by other employees. He testified, however, that
he knew nothing of the nature of their discussions, had had no knowledge, and
heard no rumors of Fritz' union activities, and that the knowledge acquired by
Foreman Grebel'0 and Personnel Manager Parsons had not been communicated to
him He concluded, however, that "disruption" of production in the frame welding
department since Fritz' return was attributable to him. So far as the record
discloses, no investigation was undertaken to determine whether Fritz alone was
in fact responsible for any decrease or disruption in production, and Horn's
conclusion, apparently, was reached on the basis of his observations of Fritz'
visits to the rest rooms.
Although Marico Campidilli, a member of the AFL Carpenters' grievance com-
finally resolved satisfactorily by Fritz' capitulation. Campidilli further testified,
that he experienced difficulty with Fritz almost immediately, because of his insist-
ence upon selecting his assignments, Campidilli admitted that this difficulty was
finally resolved satisfactorily by Fritz' capitulation. Campidilli further testified,
however, that, following complaints by Foremen Maurice Coates and Orville
Sigler, early in February, and "on and off" during the month, that Fritz had been
wasting too much time on the job, he reported the complaints to Fritz on several
occasions. Despite Campidilli's testimony that his own observations supported
the foremen's complaints, he admittedly made no mention to Fritz that he
regarded the complaints as justified a'
With respect to Fritz's production while he was welding "Ford frames,"
Campidilli testified that, after the foremen had complained that Fritz had been
wasting time, Campadilli and a fellow-employee ascertained from Fritz, though
the latter denied it, that Fritz and his fellow-employee, "working hard," had each
been producing only one to one and one-half frames a day, as compared with
the production by Campidilli and his fellow-employee of four frames each, dur-
ing the same period, without as much effort. Thus, according to Campidilli,
Fritz had been producing less than half as many frames as Campidilli or his
fellow-employee.
Carl Ricketts, however, a welder employed by Respondent for about 18 months
at the time of the hearing, and, like Campidilli, offered as a witness by Inter-
venor, testified that he and 5 other welders had been producing 5 to 8 "Fordraulic
loader frames" per day, working only 40 minutes each hour and "loafing the re-
maining 20 minutes," "covering up" their loafing so as to escape the notice of
their foremen °'
°D Who admitted that he had heard rumors of Fritz' activity in the CIO since the
beginning of his employment with Respondent.
u The following incident , which occurred about this time, is significant . According to
Campidilli, Fritz invited him into the washroom to "talk CIO," and told him that he had
"signed [Campidilli 's] brother up [in the FE-CIO]." Campidilli rejoined, "that is all
right , he is 21 , he knows what he wants." It was not shown whether this incident
occurred during working hours, or whether it was ever reported to management. Nor was
it contended by Respondent that It had relied, as a ground for his discharge, upon reports
that Fritz had been proselytizing for the FE-CIO during working time.
87 Late in February , or early March , Ricketts, while still a member of the AFL Carpen-
ters , signed a membership application in the FE-CIO. Several weeks later, he changed
his mind, allegedly because of resentment at attempts of fellow-employees, among whom
he named Richard Sandon , Herman Hale , Peter Frank , and Carl Buffington , to induce him
to slow down . It will be noted, incidentally , that Ricketts did not implicate Fritz in
these attempts. As to the others, none of whom, except Frank, testified. Respondent
made no contention that they were discharged, or later denied reinstatement, because
of any alleged attempted slow-down. Shortly before March 17, Ricketts confessed to
Maben and Plager that he had signed a membership application in the FE-CIO which he
had regretted. No disciplinary action was taken against him by the AFL Carpenters.
On March 17, he attended an FE-CIO meeting, and at Maben 's request , observed "what
went on," publicly acknowledging at this meeting his role as an AFL Carpenters' "stooge."
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Thus, Campidilli, who testified that the production of welders, hourly paid
employees, varied ; that there was no average for production ; and that there was
no means of ascertaining the amount produced by each welder, himself showed
a substantially lower production than Ricketts and his five fellow-employees.
Although Fritz' production while welding frames may have been lower than that
of some welders in his department, there was no showing that his production
compared unfavorably with that of the average. Significantly, at least one other
;welder, Fritz' fellow-employee, had, according to Campidilli, welded the same
number of frames as Fritz, yet there was no showing that complaint had been
made regarding his production, or that he, or any other employee, had been dis-
charged or disciplined for poor production.
Again, after Fritz was transferred from the frame-welding department to
the small parts department, from which he was finally discharged, Foreman Sigler,
according to Campidilli, complained that Fritz wasted too much time. Here,
too, no quota was set for the number of parts, small brackets for loaders, employ-
ees were expected to produce. Nor was there any showing as to how Fritz' pro-
duction compared with that of other employees in that department.
Campidilli's conclusion that production generally throughout the plant in April
and May 1947, following Fritz' discharge, increased substantially over that in
February and March with the same number of employees, was based principally
upon what he had been told by the foremen. Campidilli admitted that he had
made no count of the number of finished products, but maintained that he could
"tell pretty close how much they do in a day." n Admittedly, he had not had ac-
cess to production records, and his conclusion was based upon the grounds stated.
Apart from the fact that Campidilli's testimony was unsupported by company
records, his testimony must be evaluated in the light of his evident hostility toward
Fritz because of his dual unionism, of which the AFL Carpenters had found
him guilty and subsequently expelled him .4
33 The suggestion that the increase in production might have been accounted for by an
incentive plan introduced sometime in May, was countered by Campidilli's testimony that
the plan was introduced only in the wagonbox department, and had not been introduced
in the departments in which Fritz had worked as a welder, up to the time of the hearing.
Despite Ricketts' testimony that after March 25 welders in his department, working
steadily, "without exertion," produced 11 to 15 frames per man per day, in view of the
numerous contributing factors involved, which were unaccounted for, the record affords
no adequate basis for concluding that there was any casual relationship between Fritz'
discharge and the subsequent increase in production.
31 Further evidence was adduced by Respondent through John W Brown that about an
hour after he commenced his employment with Respondent on January 17, 1947, while
Brown was welding loader buckets, Peter Frank (erroneously named Peter Schrank at this
point in the record), attempted to induce Brown to slow down. A similar attempt, accord-
ing to Brown, was made later the same day by another employee whom he was unable to
identify, and who threatened that if Brown did not comply, he would be transferred out
of the department. Several days later, Brown was transferred to the old or downtown
plant. There was no showing that he had ever reported the incidents to management and no
explanation for his transfer was offered at the hearing. The evidence, received over Board
counsel's objection, and subject to motion to strike, was offered generally as a basis for dis-
missal of the complaint on the ground that the activities of the "complaining union" had
caused "disorder and disruption" at the plant. Asked whether the evidence was being
offered to establish the reason for the discharge and later refusal to reinstate Peter Frank
or any of the other employees involved, Respondent's counsel stated that he was asserting
that position "insofar as at least three and perhaps four of the men in the complaint are
concerned." These men were not then, or thereafter further identified. At the conclusion
of this evidence, Board counsel, apparently under the mistaken impression that the evidence
offered had related to Peter Fritz, rather than, as the witness testified, Peter Frank, moved
to strike, in its entirety, all the testimony "relating to the alleged conversation between
Peter Fritz and other [un]identified employees on the ground that such testimony is
irrelevant to any issue in this case." The motion was denied. It is clear, however, that
Brown did not specifically implicate Peter Fritz in any attempted slow-down. With
HORN MANUFACTURING COMPANY, INC . 1199
. Significant, in ascertaining Respondent's motivation in discharging Fritz, is
the admission by President Horn that, at a hearing before a representative of
the Iowa Unemployment Security Commission, involving unemployment com-
pensation for the employees alleged to have been discriminatorily discharged,
Horn had testified that, although he had observed Fritz engaging in conversa-
tions with the welders, had observed welders "loafing" in the locker room, and
had. mentioned it to Personnel Manager Parsons, he had not instructed Parsons
,or any other officials or supervisors to reprimand or discipline the offenders;
that he -had not done so himself ; that he had made no complaint to Fritz that
he regarded him responsible for any slow-down or loss of production, and that
he had never warned him that he risked discharge therefor.
• Horn, according to his testimony, had made the decision to discharge Fritz on
the afternoon of the day he was later tried by the AFL Carpenters on charges
of dual unionism. The decision, so far as the record discloses, was made without
prior consultation with any of Fritz' foremen or management officials. Nor was
there any showing of, any incident in Fritz' work performance or behavior which
precipiated Horn's decision. Although he learned later in the afternoon of the
trial scheduled at the plant that night, for which, incidentally, he had given per-
mission, and knew that Fritz had been excused earlier in the day by his foreman,
he made no effort to reach Fritz to notify him of his decision to discharge him.
Nor, when Fritz appeared at the plant at 5 o'clock to attend the trial, did Horn
take that occasion to inform him of the decision previously reached. Instead,
Horn withheld action until after the conclusion of the trial, more than 6 hours
later.
In view of all the circumstances, Horn's insistence that he was unaware of
Fritz' activities on behalf of the FL-CIO, prior to his discharge, is utterly in-
credible. Admittedly, Horn had been aware of the FE-CIO organizational cam-
paign almost from its inception, testifying that he had learned from Superin-
tendent Bill Slughter, sometime prior to Fritz' discharge, that employees had
signed FE-CIO application cards, but that he did not discuss the matter with
his superintendent or foremen, and that he took no other action. Even if, as
seems altogether unlikely in view of the widespread knowledge among the em-
ployees, members, under the union-security provisions of the contract of the
AFL Carpenters," that Horn was not aware of Fritz' FE-CIO activities prior
to that time, it is evident that he learned, at least, as early as the afternoon of
the trial, that Fritz was facing charges by the AFL Carpenters. That Respond-
ent was also aware of the nature of these charges, is apparent from the events
leading up to and culminating in his discharge. It will be recalled that, follow-
ing the conclusion of the trial, and before any verdict had been reached, Horn
questioned Fritz' brother about his opinion of the outcome of the trial. Almost
immediately afterward, Horn discharged Fritz, assigning as the reason the "law"
which had been passed affecting "jurisdictional disputes." It is evident, in the
context and under the circumstances in which the reference was made, that
Horn regarded, the "law" (decision of the Board) as dispositive of Fritz' right to
have sought a change in bargaining representative at the time he had engaged in
that effort.
respect to the other employees alleged herein to have been discriminatorily discharged, the
record as a whole fails to establish by the preponderance of the reliable, probative, and
substantial evidence, that those employees engaged in any concerted slow-down, or, except
to the extent indicated above, that Respondent ever advanced the same as a ground for
discharge or denial of reinstatement. Except as noted elsewhere, with respect to Fritz,
Larson, and Mohler, Respondent relied at all times upon loss of good standing in the
AFL Carpenters as the sole ground of discharge.
15 It will be recalled that Fritz was first confronted by the AFL Carpenters with charges
of dual unionism at a meeting held on February 17, 1947.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it is undisputed that Horn did, somewhat belatedly, mention "disruption
of production" as a ground for discharge, it is evident that this was added as an
afterthought to fortify the real ground previously advanced. Horn 's conclusion
that Fritz had been responsible for disruption of production appears to have
been based entirely on his alleged observations of Fritz' frequent visits to the
rest room. Despite Horn's disclaimer of any knowledge of the nature of Fritz'
rest room encounters with employees, the record as a whole justifies the in-
ference that Horn suspected Fritz of utilizing the meetings as a means of
proselytizing for the FE-CIO, and that it was to this, rather than any alleged
"disruption of production," that Respondent objected.
Upon the basis of the foregoing and the entire record, the absence of objective
criteria, such as production records, which would afford a reliable means of
comparison between Fritz' production and the average or normal production
in his department; the absence of any probative evidence that Fritz had engaged
in a deliberate slow-down, that he had wasted more time than other employees
similarly engaged, that the meetings in the rest room had occurred during work-
ing time, or that Fritz had attempted to induce employees to engage in a delib-
erate, concerted slow-down, the undersigned is unable to conclude that Respond-
ent was motivated by those considerations in discharging Fritz. On the con-
trary, the preponderance of the reliable, substantial, and probative evidence
in the record as a whole, particularly the evidence of Fritz' prominence in the
FE-CIO activities, Respondent's knowledge of those activities, and his participa-
tion therein ; Respondent's opposition to the FE-CIO, theretofore indicated and
later manifested by supervisors and management officials ; Horn's remarks re-
garding the change in Board policy with respect to contract bar; the coinci-'
dence of timing of Fritz' discharge with his trial by the AFL Carpenters on
charges of dual unionism ; Respondent's expressed preference for perpetuating
the incumbent bargaining representative, at all costs, however expedient, con-
vince the undersigned that Respondent in discharging Fritz, was motivated not
by dissatisfaction with his services, but by his activities on behalf of the rival
FE-CIO, of which Respondent was fully aware. That Respondent did not await
the AFL Carpenters' demand for Fritz' discharge, but, in effect, anticipated
the union's notice of Fritz' loss of good standing, which was in fact subsequently
forthcoming, does not affect the findings herein. In view of the subsequent claim
of his loss of good standing, the issue of Fritz' right to have engaged in activity
on behalf of a rival union when he did, will be discussed hereinafter.
2. The discharge of Elwood Nelson
Elwood Nelson began his employment with Respondent about the middle of
May 1946, leaving the latter part of July 1946. On September 28, 1946, he re-
turned and worked until March 11, 1947, when he was discharged. Hired by
Personnel Manager Parsons, Nelson testified that he could recall no mention of
any union-security requirement at the time, but that he was nevertheless en-
rolled in the AFL Carpenters by Peter Fritz at the end of 30 days. He saw a
copy of the union's contract for the first time after his discharge, when it was
shown him by "Chuck" Eastwood, a former shop steward, among those employees
subsequently discharged. His dues were paid to "Whitey" Plager, the AFL Car-
penters' financial secretary, until the check-off was later invoked.
In mid-January 1947, Nelson obtained a membership application card at the
CIO Hall, and joined that union, later enlisting the membership of several other
employees. Thereafter, he was elected member of the AFL Carpenters grievance
committee, and, with Peter Fritz, successfully prosecuted the grievance of Duane
McCullough. He attended a total of four or five meetings of the FE-CIO before
HORN MANUFACTURING COMPANY, INC. 1201
he was discharged. In February, he was warned by Maben and Campidilli that
unless he discontinued his CIO activities, they would "pull [his] card." Asked
how this would be accomplished, they informed him that a majority of "the
board," consisting of five members, could "pull [his] card," if they so "ruled."
At the meeting of the AFL Carpenters which Nelson attended on March 10,
1947, the trial committee reported the verdict of guilty aga'nst Peter Fritz.
Nelson expressed disapproval. Following general debate regarding the com-
parative merits of the AFL and CIO, and the issue of communism in the CIO,
"Whitey" Plager read to the membership excerpts from an article, which had
appeared in the Saturday Evening Post stigmatizing the FE-CIO and other CIO
unions as Communist-led or influenced. Nelson demurred, and, according to
Plager's testimony, expressed the opinion that he would join a union irrespective
of whether it was "Communistic" in preference to a union which accomplished
nothing for him. President Maben thereupon asked Nelson whether he would
knowingly join a Communist union . Nelson replied that he would if it would
benefit him. During the discussion , in response to Nelson's request , Plager
read the definition of communism from a dictionary. Although Nelson was not
asked at the meeting whether he was a Communist, he testified that after hear-
ing the definition read lie concluded that he was not. He denied at the hearing
that he was in fact a Communist, testifying further that at no time since his
membership in the FE-CIO had he observed any evidence that that union was a
Communist organization.
Next morning, Shop Steward Campidilli reported to Nelson that he had been
approached by a number of employees, whose identity he refused to reveal,
to ascertain whether Nelson could be expelled from the AFL Carpenters, and dis-
charged from Respondent's employ, because of what had transpired.8° Asked
whether that could be done , Campidilli replied that, as shop steward, he could see
that that was accomplished. Finally, Campidilli remarked, according to Nelson,
"Well, I will see how the boys feel about it. I may fire you yet."
Later that day, a group of AFL Carpenters officials, including Maben, Plager,
Campidilli, and Dearl Butrick, called on Personnel Manager Parsons and, after
reporting Nelson's remarks at the union meeting the night before, notified Parsons
that they had decided to suspend Nelson from membership, and demanded that
Parsons "give him his time." Parsons declined, stating that "it was up to them"
"to tell him." About 4: 30 in the afternoon, Campidilli notified Nelson that he
was wanted in Parsons' office, and accompanied him there. When they arrived,
Maben informed Nelson that the employees had stated that they would refuse
to work with him, and that a majority of "the board," of which five were present,
had "ruled" that he was a Communist, and that he should therefore be expelled.
Nelson, protesting that there was no provision for this action in the constitution
of the AFL Carpenters, demanded to know how this could be done, and was
informed by Maben that International Representative Roberts had advised that
a majority of "the board" could determine that he was a Communist and expel
him, notwithstanding the absence of any provision therefor in the constitution.
Parsons thereupon told Nelson that, since membership in good standing in the
AFL Carpenters was required as a condition of employment, he would be obliged
to "give [him] his check." Campidilli then procured Nelson's time card and
delivered it to Parsons with instructions that he give Nelson his check. Parsons
declined to comply at the time but later had Nelson's pay check prepared, and,
at the close of the shift, delivered it to Nelson. Later, on March 19, Respondent
"According to Plager , he, as well as other officers and shop stewards of the AFL Car.
pentere had received numerous complaints from union members concerning Nelson's
remarks at the union meeting the night before.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the first time, received from the AFL Carpenters written notice of Nelson's
suspension.
According to Nelson , after some persistence , he learned from Campidilli that
Carl Balent had been the person most insistent on his expulsion . Nelson testi-
fied, without contradiction, that he called on Balent and learned that Balent had
merely asked Maben what Nelson had meant by his remarks at the union meeting,
but that Balent had denied that he had demanded Nelson's expulsion . Discussing
the matter with Dearl Butrick, a member of the grievance committee, Nelson
was told that Maben had informed Butrick that the union planned to compile
a list of all emplot,ees who had refused to work with Nelson, comprising at least
a majority , for submission to Respondent . Such refusal, Maben had con-
tended, would constitute evidence justifying the Union in "pull[ing Nelson's
union] card." Butrick added that that was the last he heard of that proposal.
When Nelson asked him to process his grievance, Butrick stated that "it wouldn't
do much good," and advised him to "let it go and maybe they could work out
something later." No action, however, was taken with respect to his grievance.
Admittedly no charges were ever served on Nelson by the union, no trial was
held, and no formal notice of his suspension or expulsion served on him.
Although it was, in effect, conceded by the AFL Carpenters that Nelson had
not violated any of the provisions of its constitution, it was contended, as both
Maben and Plager testified, that Nelson had violated the tenets of the union,
and the obligations imposed upon members by the initiation ritual , requiring
the candidate , in taking his oath of allegiance to the union, to swear that he
would not give aid, comfort or support to a Communist union, under the pain
of automatic forfeiture of membership in the AFL Carpenters union. Accord-
ing to Maben and Plager, they had been advised by International Representa=
tive Roberts, who had been present at the union meeting in question , that for-
feiture of membership became automatic ; that no trial was necessary ; and
that the determination by the officers was all that was required to justify his
expulsion . The only recourse available to a member claiming to be aggrieved
was an appeal to the District Council , where one existed , otherwise to the General
Executive Board, and thence to the president of the United Brotherhood of
Carpenters & Joiners. There was, in the district in which Local 1931 was
located, no District Council. No appeal was taken by Nelson from his sus-
pension or expulsion, Nelson testifying that he did not regard it worth while.
Counsel for the AFL Carpenters generally maintained throughout the hear-
ing that the Board was entirely without authority to pass upon the propriety of
disciplinary action by the AFL in suspending or expelling its members, or
upon the regularity of its proceedings .' Respondent , for its part, contended
that it had neither the duty nor the right to inquire into the grounds of disci-
plinary action taken against AFL Carpenters members, 'and, since membership
in good standing in that union was a prerequisite to continued employment, Re-
spondent, upon loss of an employee's good standing, had no alternative but to
discharge the employee, upon demand of the contracting union. Whatever may-
be said for this view, prior to the enactment of the Labor Management Relations
Act of 1947, at least, it disregards the authority of the Board to determine
whether the discharge of an employee pursuant to an alleged union-security
provision is protected under the proviso to Section 8 (3) of the Act. And, in
determining whether an employer may justifiably accede to the demands of a
contracting union for the discharge of such an employee, the propriety and
regularity of the disciplinary action by the union, particularly where the circum-
stances are known or brought to the attention of the employer , cannot be,
ignored in determining the validity of the discharge. a
The issue, then, is two-fold. First, whether the discharged employee was in
HORN MANUFACTURING COMPANY, INC. 1203
fact suspended or expelled from the Union for the reasons assigned here,
allegedly for expressing views tantamount to giving air, comfort, or support
to a Communist union, or, as contended by the Board and the FE-CIO, for en-
gaging in dual unionism. Second, if for the latter reason, whether, in acceding
to the union's demand for discharge, the employer was aware that the incumbent
union had expelled the employee, and thereafter demanded his discharge, be-
cause of his activities on behalf of a rival union. The ultimate question, if
it should be determined that the expulsion, and consequent discharge, were in
fact for dual unionism, whether the activities on behalf of the rival union oc-
curred at a time appropriate for employees to seek a redetermination of
bargaining representative, is discussed hereinafter.
The evidence clearly establishes that the AFL Carpenters was aware as
early as February of Nelson's CIO activities. Maben, in his testimony, admitted
that he knew then and apparently prior to the date of Fritz' trial, that Nelson
was active in promoting the FE-CIO, and soliciting employees for membership.
Moreover, during this period, Maben and Campidilli had warned him to dis-
continue his CIO activities under penalty of having his card "pulled." The AFL
v. CIO debate at the AFL Carpenters meeting on the evening of March 10, was
no mere academic discussion. It transpired against a background of intensive
FE-CIO organizational activity, and was obviously designed to combat that
campaign. The announcement of the verdict against Fritz was reasonably
calculated to serve as a warning to other dissident members who might have
been tempted to desert the AFL Carpenters. The ensuing discussion concerning
alleged Communism in the CIO, followed by the reading from the Saturday
Evening Post article, was manifestly for the purpose of dissuading members
from a change of allegiance. In short, the issue of Communism raised at the
meeting was only incidental to the principal concern of the AFL Carpenters
at the inroads being made by the FE-CIO, which the Carpenters regarded as
Communistic.
It will be noted that Nelson's remarks to the effect that, confronted by a.
choice between a union which accomplished nothing for him and a union which
was "communistic," he would prefer the latter, if he believed it would benefit
him, fall far short of an espousal of Communism, or of giving aid, comfort or
support to a Communist organization. Reasonably construed, the statement
constituted an expression by a member of a labor organization of the right to
exercise his choice of representative, irrespective of its political philosophy, and,
while the labor organization may be entitled to insist upon a member's un-
qualified allegiance, and to discipline recalcitrant members, insofar as such
action impinges on the right of employees to exercise freedom of choice of
bargaining representative at an appropriate time, it is unavailing.
In view of what has been stated regarding the AFL Carpenters' knowledge
of Nelson's FE-CIO activities ; the threat to "pull his card" ; the union's efforts
to combat the FE-CIO organizational campaign ; Nelson's summary expulsion,
and all the surrounding circumstances, it is clear, and the undersigned con-
cludes and finds, that, in expelling Nelson, the AFL Carpenters was motivated
not by his alleged espousal of Communism, but rather by his activities on behalf
of a rival labor organization. That the AFL Carpenters regarded that organi-
zation as Communist-influenced or dominated, does not affect the basic con-
clusion.' The ultimate issue is whether the FEC-CIO was Communist-
influenced, a matter not wthin the litigable issues, but whether Respondent was
justified in acceding to the AFL Carpenters' demand for Nelson's discharge
because of his alleged loss of good standing.
The record amply indicates that Respondent was aware of the FE-CIO organi-
zational campaign as early as January 1947. As has already been found, it had
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged Fritz on February 28 under circumstances which clearly established
that it was motivated by his activities on, behalf of that organization. It had been
served with a demand for recognition on March 3, followed next day by the filing
of a representation petition by the FE-CIO. Within a week it was confronted
by a demand for the discharge of Nelson, as a consequence of his loss of good
standing, allegedly for espousal of Communism. In the light of Respondent's
attitude, already indicated and, as will hereinafter appear, including its allusians
to the FE-CIO as Communistic, and to its representatives, as Communists, it is
apparent that Respondent regarded that term as descriptive of the FE-CIO. As
has already been indicated, and will hereinafter appear, Respondent had, through
various supervises, forecast the consequences of affiliation with the FE-CIO, and
had threatened reprisals. When, therefore, Personnel Manager Parsons acceded to
the demand of the AFL Carpenters for Nelson's discharge because of his alleged
loss of good standing, resulting from his purported espousal of Communism, Re-
spondent reasonably knew that the demand for Nelson's expulsion was based on
his dual unionism, and not on the ground asserted by the AFL Carpenters.
Whether Respondent was justified in acceding to the demand because of Nelson's
dual unionism , is resolved hereinafter in the discussion of whether the activity
on behalf of the rival union occurred at an appropriate time.
3. The discharges of March 19
The morning of March 19, employees arrived at work at 7 o'clock as usual,
At 9 o'clock, pursuant to the decision reached the night before, 37 employees,
alleged in the complaint to have been discriminatorily discharged later that day;
donned CIO campaign buttons. Several of Respondent's supervisors, including
Superintendent Bill Slughter and Maurice Coats, foreman of the bucket and
frame welding department observed the CIO buttons, but made no comment.
Coats, however, according to Employee Robert Laughlin's credible testimony,
"smirked and went on." Despite the fact that Maben was employed in the
machine shop in another building, he was not long in learning what had trans-
pired. After conferring with other officers of his local, they consulted Attorney
Francis J. Mullen, who examined the union's constitution, and advised them
what procedure to follow.
That morning, Shop Steward Campidilli, Milton Wilcox, member of the'
grievance committee, and other members of the AFL Carpenters, ascertained
and noted the names and clock numbers of the wearers of the CIO badges "
During the morning, and early afternoon, Maben, Plager, Strait and various AFL
Carpenters members openly circulated among the employees at the plant, during
working time, a "petition" to oust the members who had worn CIO badges.
97 Late in January 1947 , according to the credited testimony of Employee Richard Sheker,
Maben, In the presence of AFL Vice=President William Strait , questioned him during
working hours as to whether he had joined the CIO. When Sheker disclaimed any
knowledge of the organizational campaign , beyond mere rumor, Maben warned him that
if he learned that he had signed a card, he would "pull [ his] time card ." Although
Sheker later testified that Maben had referred merely to his "card," without specifying
whether he meant his "time card " or "membership card," it Is apparent that Sheker
understood that Maben had intended his "time card " Since the deprival of either card
would have resulted in loss of employment under the union security provisions of the
existing contract, the undersigned regards this apparent discrepancy in Sheker's testimony
immaterial . On March 19, after observing that Sheker was wearing a CIO button,
Campidilli and Wilcox took his name, Wilcox remarking that Sheker was "making a big
mistake; [ that he ] would be awful sorry" The same morning , Maben questioned
employee Orville Schpnert as to whether he had joined the FE-CIO. When the latter
admitted that he had , Maben shook his head and walked away.
HORN MANUFACTURING COMPANY, INC. 1205
Shortly before 2 o'clock in, the" afternoon, during working hours, employees
were notified, some by Foreman Coats, to attend a meeting in the wagon-box
department at 2 o'clock. No permission had been obtained in advance from
Respondent for the holding of the meeting, Maben testifying that the union was
prepared to "answer to [Respondent] later." The machines'were shut down,
and the employees assembled in that department. Three foremen, Vern Olson,
in charge of welders and machine operators in the wagon-box department, Art
Alpers, and Bud Seibert, in charge of the "steel gang," attended and remained
throughout the meeting which lasted until about 2: 30.88
Maben presided and, after announcing the purposes of ,the meeting,' directed
Plager to read a motion to suspend, pending trial, the 37 employees who had
worn 010 buttons, and whose names were read, for creating dissension among
the members of the AFL. The 37 employees were segregated from the'remainder
of the group, numbering approximately 100. Discussion on the motion was
called for, and when none was had, the motion was put to a vote by a show of
hands. Except for the 37 CIO badge-wearers, and a small number of other
employees, who abstained from voting, apparently all others present voted in
favor of the motion. While it was intimated by Board witnesses that the group
of badge-wearers was denied the privilege of voting, apart from the fact that
they were segregated from the other members, there was no showing that they
were actually prevented from voting. It is more probable that they abstained out
of a sense of futility. Maben, without announcing the number of affirmative
votes, declared the motion carried and, after "quot[ing] from memory" the pro-
vision of the constitution authorizing suspension of members upon a three-
fourths vote, declared the 37 members suspended" The meeting thereupon
adjourned.
Maben, Plager, and Strait thereupon called on Personnel Manager Parsons,
notified him of the union's action, and demanded the discharge of all the em-
ployees who had worn CIO badges, under threat of a strike if the demand were
denied. When Parsons refused, unless furnished with a written demand, Maben
bud Plager left for the office of the union's attorney, where formal notices were
8' Although foremen were admitted to membership in the AFL Local, they were not
permitted to attend union meetings. The finding in the text, regarding the presence of
foremen at this meeting, is based upon the positive and convincing testimony of employee
Dexter R. Mongan, whose testimony remained unshaken under vigorous and exhaustive
cross-examination by counsel ;or the AFL concerning minute details, including the posi-
tion in the department of the foremen while the meeting was in progress. Maben, Plager,
and Campidilli, who acted as warden during the meeting, denied that any foremen were
present during the meeting, testifying that they had been excluded from the department
before the meeting commenced. According to Campidilli, although Superintendent
Slughter, Fbremen Grunwald, Alpers, and Seibert were in the wagon-box department
immediately before the meeting, they were brusquely ordered out, and the doors closed
behind them before the meeting commenced. The undersigned found their testimony
unconvincing. Inasmuch, however, as Grunwald, the only one of this group of super-
visors to testify, denied that he was present at the meeting, and since Mongan did not
testify to his presence the undersigned finds that he was not present.
88 Reference was apparently to the "Constitution and Laws of the United Brotherhood
of Carpenters and Joiners of America and Rules for Subordinate Bodies under its juris-
diction, "CHARGES AND TRIALS A, Section 56, which provides in part,
.. . Any Local Union may, suspend a member by a three-fourths vote until charges
can be preferred against him and he is regularly tried . . .
Assuming, although the provision is not specified on this point, that it requires only a
three-fourths vote of the members present, it is not certain that a sufficient number of
affirmative votes was cast, inasmuch as the record discloses that, in addition to the 37
employees involved who did not vote, of the approximately 100 additional members
present, a number of others abstained.
844340-50-vol. 83-77
1206 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD
prepared, and signed by them:40 Parsons informed the group which had con-
gregated at his office in the meantime that "as far as the company was con-
cerned," they had not been "laid off," and that he was not preparing their pay
checks.
. Soon afterward, FE-CIO Representative Fischer, notified of the action taken
by the AFL Carpenters, arrived at the plant with Les Bingham, a Packinghouse
member. They were joined by George Fritz and Robert Oleson, also Packing-
house members, who had gone to the plant to distribute leaflets. Fischer, under
the impression that the men had been discharged , identified himself to Parsons
and, after stating that the FE-CIO represented employees ,at the plant, and had
filed a petition for certification , demanded the reason`for "the ' discharges.' Par=
sons referred to the union-security contract, but denied that Respondent had
discharged the employees, stating that they had been merely suspended by the
AFL Carpenters. Finally Fischer asked for a conference with the Horns. When
Secretary Fred Horn appeared, Fischer attempted to discuss the matter, but-was
informed that Respondent intended to abide by its contract, and that there was
no need for a conference . Fischer observed that the contract did not require
Respondent to discharge employees for joining the CIO, and warned that if it did
so, Respondent would be violating the Act. Heated argument ensued in which
Horn expressed resentment at allegedly scurrilous statements about Respondent
which had appeared in FE-CIO pamphlets. Finally, Horn abruptly terminated
the discussion, and, after reviling, the FE-CIO and its representatives as Com-
munists, ordered Fischer and his colleagues from the plant. Fischer then in-
formed the suspended employees that they had not been discharged and, after
instructing them to return to work, left the plant.
Later, after a conference between Treasurer Robert Horn, Parsons, and
Auditor McCollough, McCollough telephoned Respondent's counsel, who advised,
according to Parsons, that "under the circumstances all he could do [was] pay
the men off."
About 3: 30 of 4 o'clock that afternoon, the AFL Carpenters Officials
returned to the plant and delivered to Parsons the notices prepared earlier.
Parsons thereupon removed the time cards of the suspended employees from the
rack, instructed his clerk to prepare their pay checks through March 19, and
to attach to the time cards notices to report to Parsons' office at the close of the
shift. While Parsons was replacing the cards in the rack, he was approached by
a group of welders wearing CIO badges, and exhibited the union's letter to them.
At 5 o'clock the ment reported to Parson's office. Parsons informed "Chuck"
Eastman , spokesman for the group, that since they had been suspended from
membership in the contracting union, Respondent had no alternative but to
dismiss them. Some 15 accepted their checks, the remainder receiving theirs
the following day.
At a meeting of the AFL Carpenters held on April 14, the members suspended
on March 19, were tried on charges. Only some appeared for the trial. All,
however, were expelled.
4. The discharges of March 25
The afternoon of March 24 , a meeting was held at 010 headquarters for
employees on the night shift. When this group reported for work wearing
CIO badges , Maben noted their names. That evening , meetings of both the
110 Two notices , each dated March 19, addressed to Parsons , were prepared. One advised
of the suspension of the 37 badge -wearers, effective at•2:30 p m that day , and their con-
sequent loss of good standing , advising Respondent to "govern [ itself ] accordingly"; the
other confirmed oral notice given March 11 of the expulsion , -and consequent loss of good
standing , of Peter Fritz and Elwood Nelson , without further comment.
HORN MANUFACTURING COMPANY, INC . 1207
AFL Carpenters and the FE-CIO were scheduled. Night shift employees were
excused by their foreman to attend their AFL Carpenters' meeting, and, while
it is not clear whether the foreman was aware that an FE-CIO meeting was
scheduled for the same evening, and, if so, whether similar permission was
accorded employees, it is apparent that FE-CIO adherents utilized the oppor-
tunity to attend the meeting of their organization. There was no showing
that any of the employees sustained any loss of pay for the time spent at either
meeting. At the AFL Carpenters' meeting, it was unanimously voted to suspend
all members who had worn CIO badges on March 24, and to suspend "auto-
matically" any member who might wear such badge thereafter.
The following morning, March 25, a group of employees on the day shift
arrived at the plant displaying CIO badges. Again, Maben noted their names,
and left for the office of the AFL Carpenters' counsel. At about noon, Mabelr'
and Plager delivered to Personnel Manager Parsons a letter prepared earlier
at the office of union counsel, signed by them in their official capacities, notifying
Respondent that, effective 9 p. in., March 24, 1947, 21 named employees
had ceased to be in good standing "within the provisions of our contract with your
company," and advising that the named employees had been suspended by
unanimous vote of the members of the union, in accordance with its constitu-
tion and laws. As before, Respondent was instructed to govern itself accord-
ingly," Following the procedure in connection with the group discharged on
March 19, Parsons removed the employees' time cards, arranged for the prepara-
tion of their pay checks, and replaced the cards in the rack, with a notice to
report to his office at 5 o'clock. When the men reported as instructed Par
sons delivered their pay checks to them, and they left. A total of 15 employees
was thus discharged on March 25.
On -April 28, the group of employees discharged on March 25, after wearing
CIO badges on March 24 and 25, were tried by the AFL Carpenters, following
the filing of charges, and, on being found guilty, expelled.
5. The discharge of Glenn Larson
Glenn Larson's employment with Respondent commenced on March 10, 1947,
and was terminated within 30 days on March 27, 1947. Although no mention
was made to him on any union-security contract at the time he was hired, he
was solicited soon afterward to join the AFL Carpenters by several employees,
including Shop Steward "Chuck" Eastwood, and signed a membership applica-
41 Included in the list of suspended employees furnished by the union were five, who had
been employed less than 30 days The time cards of these employees were not removed,
nor were notices attached to their cards . After discussion between Parsons and company_
officials, Secretary Robert P. Horn notified the AFL Local that the list furnished Respond-
ent included the names of five temporary employees , employed less than 30 days, who
were not "under the jurisdiction of the [AFL] union for that time," under the terms of
the existing contract. These were :
Glenn Larson hired March 10, 1947
Leo Hart hired March 3, 1947 -
Cecil Mohler hired March 4, 1947
Ronald Enfield hired March 3, 1947
Lloyd Lakin hired March 6, 1947
The letter further advised that Merle Enfield, whose name was among those submitted by
the AFL to Respondent, had, according to its records, resigned on March 22. The name
of Julian Bowers, stricken before the list had been submitted to Parsons, had been included
through inadvertence. None of the five temporary employees was discharged at- the time,
and two, Hart and Lakin were still employed by Respondent at the time df the hearing.
Larson and Mohler, however, were subsequently discharged on March 31, and April 3; 1947,
respectively, and their discharges , alleged in the complaint to have been discriminatory, are
discussed hereinafter.
e
1208 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Lion" Several days after signing the AFL application, he joined the FE-CIO.
• On about March 25, with other employees already referred to, he donned a
CIO campaign badge, which he continued to wear at the plant until his discharge.
Although his name had been included among the list of employees whose
discharge had been demanded by the AFL Carpenters on March 25, Respondent
triad declined to discharge Larson for the reason that, since he had been em-
ployed less than 30 days, he was not under the jurisdiction of that union.
!,Larson was on the picket line on March 28 and 29 until the issuance of the
temporary injunction. On Monday, March 31, he reported for work at about
7:30 a. in., and punched his time card which was still in the rack. Several
minutes later, he was approached by a group of some 30 employees, among
whom he identified Maben, Plager, and Foreman Grunwald. Grunwald, who,
according to Larson, had, been his foreman for about 3 days, informed Larson
that he no longer worked there, and that he was fired. When Larson chal-
lenged Grunwald's authority to discharge him, Grunwald instructed him to
await Parsons' arrival. Within a few minutes, Grunwald removed Larson's
time card from the rack, and escorted Larson to Parsons' office. The group
of AFL Carpenters' adherents followed Larson shouting invectives.
When they reached his office, • Parsons reminded Larson that he was a tem-
porary employee, and notified him that he was discharged. According to
Larson, whose testimony is credited, he asked Parsons for a reason for the
discharge so that he could furnish it to the unemployment security office.
Parsons at first refused, but then, ignoring Larson, remarked to Grunwald,
"we will say he took 20 minutes to wash," Grunwald adding that they would
say that Larson "wasted the time of the men loading box cars." Larson re-
quested his pay check, and was told to return at 9 o'clock. When Larson re-
turned at 9 o'clock, he reecived his pay check, although Parsons declined
to pay him for the time he had punched in that morning, remarking that Larson
was "lucky [he] was alive after coming to work this morning." "
Larson had paid no AFL union dues after signing his application, and it is
evident that he neither considered himself, nor that the Union regarded him as
a member of the AFL Carpenters. He at no time received any notice of
suspension or expulsion from the AFL Carpenters, despite the fact that his
discharge had been demanded, together with those of the employees who had
worn badges on March 24 and 25.
Larson testified, moreover, that Maben had notified him, and other temporary
employees, that it would be necessary for them to be initiated in order to become
members of that organization, stating that the union would consider letting them
join if they would remove their CIO buttons.
Significantly, Parsons admitted in his testimony that, when employees, in-,
eluding temporary employees, displayed CIO badges on March 24, he had told
them,. after deploring that no work had been done in the plant since "these
[CIO] badges went on today," and that "it [was] practically a holiday for every-
body," that he did not "want a new man wearing the CIO campaign badges or'
'u According to Larson , one of this group , whom he was unable to identify , inquired
whether Larson had ever belonged to any other union , and, upon being informed that he
bad been a member of the CIO while employed at Tobin Packing Company, stated that
Larson was fortunate in being able to work for Respondent in view of his former employ-
ment and, inferentially , his membership in the CIO, adding that he would be permitted
to remain in Respondent's employ for only 30 days. In view of the absence of identification
of the person to whom these remarks were attributed , no finding is based on this testimony.
'= The undersigned does not consider that this remark was intended as or had the reason-
able effect of threatening or coercing Larson , but that it referred to the evident hostility
of AFL Carpenters' members, and the activity on the picket line, discussed hereinafter.
HORN MANUFACTURING COMPANY, INC. 1209
-AFL compaign badges, either one." It just causes too much trouble in the
plant ... I didn't tell them, they had to take them off, . . . I asked them not
to wear them then or any other badge out of proportion, it caused disruption in
the work."
Until about March 25, 1947, Larson had been employed under the supervision
of Foreman Vern Oleson, "scraping sides and bottoms" in the wagon-box depart-
ment. After the discharges on March 25, Larson was transferred to the shipping
department under Foreman Grunwald, because, as Grunwald testified, work in the
,wagon-bog department had slowed down. Although, according to Grunwald,
Larson had worked in his department "a couple of weeks," it is obvious that he
was mistaken, in view of the total period of Larson's employment and the date
of his transfer to Grunwald's department. Larson's testimony, that he was
under Grunwald's supervision for only 3 or 4 days is, as will presently be seen,
more plausible and is, therefore, credited.
Despite this, Grunwald testified that he became dissatisfied with Larson's
work "a couple of days" after he started working for him ; that he "had to keep
after him all the time" ; that Larson refused to perform work necessary in load-
ing,-"you had to bring everything to him" ; that he performed his work only
while Grunwald was present to direct him ; and that loaders had complained that
Larson was not doing his work. Grunwald admitted that Larson performed his
work as long as Grunwald was present, but contended that Larson failed to do
so when Grunwald was not in sight. This ocourred, according to Grunwald,
"off and on for the full two weeks he was working for [him]." After about
5 or 6 days, Grunwald complained to Shop Steward Strait. There was no im-
provement in his work, and Grunwald spoke to Larson again several days later,
without result. Grunwald testified that he then assigned him to sweeping the
aisles, but Larson "swept everything" into the aisles, and left it there when he
quit work for the day. In addition, Grunwald complained that Larson was in
the habit of quitting work about 15 minutes early to wash up, that he had com-
plained to his steward, and warned Larson on three occasions that "if he didn't
straighten up we would have to get rid of him." The day Larson was discharged,
Grunwald claimed, he had warned Larson twice, and, when no improvement
resulted , determined to discharge him.
Grunwald admitted that Larson had asked the reason for his discharge, and
testified that he informed him that his work had been unsatisfactory. He did
not, however, categorically deny the statements attributed by Larson to him
and Parsons at the time, testifying that he did not remain to listen to any con-
versation, although he heard Parsons instruct Larson to return for his check.
For his part, Larson denied that he had ever received any unfavorable criticism
of his work from any foreman or supervisor during the entire period of his
employment with Respondent, and, on rebuttal, categorically denied that he had
engaged in any of the conduct complained of by Grunwald, or that he had ever
been warned about it by Grunwald or the shop steward. Although called as a
witness on behalf of the AFL Carpenters, Shop Steward Strait was not asked
whether, nor did he testify that, Grunwald had ever complained to him about
Larson's work, or that he had himself made any complaints to Larson. Nor
were any of Larson's fellow-employees, who had allegedly complained about him,
called to corroborate Grunwald's testimony.
In view of the brief duration of Larson's employment under Grunwald, the
complete absence of evidence of unsatisfactory work or complaints while he was
under the supervision of Foreman Oleson, coupled with Larson's denials that he
had ever been unfavorably criticized, warned or reprimanded, the undersigned
" There was no showing that any AFL badges were being worn in the plant at that time.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not persuaded that Larson was discharged for the reasons advanced by Re-
spondent. There was no showing, for example, when he returned on March 31,
that work was not available for him in the wagon-box department in which he
had originally been employed, and in which his performance had presumably been
acceptable, nor that he had been offered a transfer to that department. Never-
theless, inasmuch as he was still a probationary employee, Respondent could
have discharged him with impunity, provided it was not motivated by considera-
tions involving his union activity on behalf of the FE-CIO. The record discloses,
however, that Larson had worn CIO campaign badges, two or three at a time,
as a matter of fact, in disregard of Parsons' admonition. That Respondent had
refused to accede to the AFL Carpenters' demand for his discharge on March 25,
and that two temporary employees, who had also worn CIO badges at the plant,
were still in Respondent's employ at the time of the hearing, does not establish
absence of discriminatory motive in Larson's discharge, especially in view of
his conspicuous activity on the picket line. When he returned to work on
March 31, his time card was still in the rack. He punched his card, and pro-
ceeded to work. Thereafter, when the group of AFL employees and union offi-
cials advanced on Larson, Respondent, apparently acceding to the pressure of
that union, discharged him, assigning therefor reasons which were ostensible
rather than real.
As has already been noted elsewhere Respondent originally based its defense
to Larson's discharge, as well, as that of the other employees involved, solely
upon his alleged loss of good standing in the AFL Carpenters. During cross-
examination of Larson, Respondent's counsel attempted to shift the ground of
defense with respect to his case. Asked whether the evidence sought to be
adduced was being offered as a ground for denying reinstatement, counsel replied,
"It is the position of the company that this man was discharged for cause
within the 30 day limits provided for in our contract." Regarding the purpose
for which the evidence was being offered, counsel asserted "that after [Larson]
joined the picket line and stayed on it for 2 days, that then he came back through
the picket line on Monday morning to try and work at the Horn Manufacturing
Company." Again asked whether the evidence was being offered as a ground
for refusal to reinstate the employee, counsel replied, "Not this particular evi-
dence." Somewhat later, he added, "Of course, it is being offered by way of
defense." He then reiterated that Larson had been a temporary employee within
the meaning of the contract with the AFL Carpenters; that Respondent had
refused to accede to the AFL's demand to discharge him when lie had been in-
cluded among the group suspended on March 25; that Larson had absented him-
self from the plant on March 28 and 29; concluding, "when he returned on the 31st
that he was-that his employment was terminated for reasons which we will show
on behalf of the company." Over Board counsel's objection, counsel was per-
mitted to amend his answer, to allege, with respect to both Larson and Cecil
Mohler, another temporary employee, whose case is discussed hereinafter, that
they were discharged, or their employment terminated, and that they were
afterwards denied reinstatement, "for good cause."
The conclusion that the grounds ultimately relied on as justification for
Larson's discharge were not the motivating consideration, is supported by the
fact that they were belatedly raised.
Upon the basis of the foregoing, and the preponderance of the reliable, proba-
tive, and substantial evidence in the record as a whole, the undersigned finds
and concludes that Respondent would not have discharged Larson, notwith-
standing his probationary status, in the absence of his advocacy on behalf of
the FE-CIO, as manifested by his wearing of campaign buttons and his activity
on the picket line for the 2 days prior to his discharge.
HORN MANUFACTURING COMPANY, INC. 1211
Evidence of Larson's conduct and activity on the picket line, and, the effect
thereof upon his right of reinstatement, is considered hereinafter.
6. The-discharge of Cecil Mohler
Cecil Mohler was employed on March 4, 1947, and was discharged on April 4,
1947." He commenced work on the night shift under the supervision of General
Foreman Earl Grebel and, following an absence of a week under doctor's orders,
had been employed on the day shift under Foreman Sigler for only one morning
when he was discharged. Mohler, who began as a laborer, testified credibly,
and without contradiction, that after he had been working only 4 hours as a
laborer, Grebel offered him an opportunity to "run a bead," a welding operation.
After displaying the "bead" to several employees, and praising Mohler's per-
formance, Grebel assigned him to a regular job of welding.
According to Grebel, however, Mohler had represented that he had had almost
a year's experience as a welder prior to his employment with Respondent, which
Grebel disputed ; that he was a "very, very poor welder" ; and that he was not
dependable, in that "he might take off at 10 o'clock at night ; then he might
not show up again for two or three days," conduct which, Grebel testified, he
could not tolerate on the job, and that, inasmuch as Mohler's probationary period
"was close to elapsing," and lie unable to "make the grade in any other way,"
Grebel recommended his discharge, which recommendation Parsons followed.
With respect to his previous experience, Mohler testified that, although he
had told Grebel that he had had 4 months' previous experience, Grebel had
advised him, in the event he were asked, to state that he had had a year's ex-
perience. In view of the shortage of welders at Respondent's plant at the
time, Mohler's undisputed testimony that he had begun at Respondent's plant
as a laborer ; his further testimony regarding his test by Grebel in "running a
bead," and the uncontradicted testimony regarding the compliment paid him
by Grebel upon the completion of the "bead," the undersigned finds Mohler's
testimony the more credible version.
With regard to the complaint that Mohler "might take off at 10 o'clock at
night" and then absent himself for several days, Mohler testified that he left
the plant on only one occasion at 10 o'clock, together with other employees,
to attend a CIO meeting with the foreman's permission, returning at 12: 30
or 1 o'clock. Except for this occasion, and Mohler's testimony regarding his
absence from the plant for a week on his doctor's orders, there was no evidence,
apart from Grebel's unsupported testimony, that Mohler absented himself from
the plant without permission, and no specific contention was made that his
absence during the week in question was relied on as ground for his discharge.
Grebel, however, asserted, though Mohler denied, that he had complained to
Mohler at least four to six times, presumably without results.
In all, in addition to the week he was absent on doctor's orders, Mohler testi-
fied that he had been absent 3 nights because of illness, and that on each occasion
he telephoned Parsons or left a message for him at the plant. Following this,
he had been back only 1 day when he was discharged.
Notwithstanding that, as Mohler testified, he knew he was not required to join
the AFL Carpenters during the first 30 days of his employment, at the beginning
of the second or third week of his employment, he was approached to join the
AFL Carpenters, signed an authorization card, and, with about 12 or 15 other
temporary employees, was initiated by Maben and Plager during working time,
" It was stipulated that Mohler was a probationary employee at the time of his discharge.
1212 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
in a locker-room meeting lasting an hour. Mohler was informed that his initia-
tion fee would be $10; dues , $1.50; and a [dues] book, $0.25, making a total of
$11.75. No part of that amount, however, was paid at the time. Authoriza-
tion cards, presumably for check-off, were taken'from those employees, includ-
ing Mohler, who were unable to pay their initiation fees and dues at the time.
About a week and a half before his discharge, Mohler joined the FE-CIO,
attended union meetings, and wore his button in the plant on the night of March
24 and thereafter, until his absence from the plant on doctor's orders.
Mohler denied that Foreman Grebel had notified him of his discharge on the
day in question, but testified, instead, that Maben and Campidilli, accompanied
by several other men, notified him that since he was not in good standing, he
could not continue in his employment. Maben thereupon instructed Mohler to
report to Parsons and have him prepare his pay check. Mohler refused. Later
in the day, however, Mohler reported to Parsons, and was told that Parsons
had received notice that Mohler was to receive his check that night. At 5
o'clock he was paid off.
On cross-examination by AFL Carpenters counsel, Mohler testified that Maben
had told him that if he wanted to join the AFL Carpenters, they would accept
him, but that when Mohler told the union officials that he would be unable to
pay his dues or initiation fee for at least 3 weeks because of domestic difficulties,
Maben stated that if Mohler had not worn his CIO button, or had removed it
when he had been told, they would have been willing to "give [him] the benefit
of the doubt, but as it was, they couldn't."
Foreman Grebel admittedly had observed Mohler wearing his button prior to
his discharge, and had known that all the employees who had worn CIO buttons
at the plant had previously been discharged.
As in the case of Larson, and the others, Respondent had originally relied
solely upon loss of good standing as a ground for the discharge. Later, during
the hearing, Respondent amended its answer to allege that Mohler, as well as
Larson, had been discharged within the period of their probationary employ-
ment, for good cause.
Foreman Grebel's testimony regarding Mohler's derelictions was wholly un-
convincing, particularly in the light of the position taken by the Respondent
at the commencement of the hearing, and manifested an attempt to fortify Re-
spondent's tenuous ground for the discharge. The uncontradicted testimony of ,
Mohler, on the other hand, particularly with respect to the manner in which he
acquitted himself on his test as a welder, after having been originally hired as
a laborer, was characterized by qualities of conviction and verisimilitude.
Upon the basis of the preponderance of the reliable, probative, and substantial
evidence, the undersigned is convinced and finds that Respondent did not dis-
charge Mohler because of his unsatisfactory workmanship, nor, in view of the
evident shortage of welders, because he had not fulfilled a satisfactory proba-
tionary period. The real reason for his discharge is to be found in his advocacy
of the FE-CIO cause, as manifested by his open and notorious wearing of a CIO
campaign button in the plant, as is convincingly shown by Mohler's uncontro-
verted testimony regarding the following incident :
On the night of March 24, when a group of employees wore CIO buttons at the
plant, Grebel approached Mohler at his job and told him that, as far as Respondent
was able to determine, there were only some 50, out of 226 employees "in the
C. I. 0., and that small a majority couldn't win" ; that foremen were no longer
required to remain neutral, but were permitted "to say what they wanted to say
HORN MANUFACTURING COMPANY, INC. 1213
about it"; and that if Mohler wanted a job he had "better not wear [his] button
or join the C. I. 0.1146
Considered in the light of the knowledge of Grebel and other management of l-
-cials as to what had occurred with respect to the badge-wearers; the position
of the AFF Carpenters respecting the requirement that Mohler retain member-
ship in good standing as a condition of his continued employment; its prema-
ture demand on Respondent for the discharge of Mohler on March 25, to which
Respondent declined to accede ; and the palpably groundless claims of unsatis-
factory work which Respondent assigned, the undersigned concludes and finds
that Respondent would not have discharged Mohler, notwithstanding his proba-
tionary status, in the absence of his known advocacy of the FE-CIO, and the de-
mand of the AFL Carpenters for his discharge, although Mohler was not then
required to become or remain a member of that organization ; that Respondent
did not in fact discharge him for the reasons assigned, but because of the pres-
sure of the AFL Carpenters for his discharge ; that Respondent thereby discrimi-
nated with regard to the hire and tenure of Mohler's employment, thereby discour-
aging membership in a labor organization, in violation of Section 8 (3) of the
Act.
, D. 'Issues; contentions; conclusions
The Board's theories may be stated as follows: (1) The amendment to the
original contract converted the closed-shop provision into an open-shop pro-
vision; (2) The provision relating to "good standing" under the contract requires
merely that employees shall be current in their payment of dues, and is not to be
determined by the constitution or other obligations imposed by the incumbent
union; (3) Failure to post the original contract or to circulate it among the em-
ployees deprives Respondent from asserting the union-shop provisions as a
'defense to the discharges; and, finally, (4) the union-security provisions of a
contract, even when executed in compliance with the proviso to Section 8 (3) of
the Act, may not be utilized to discharge an employee, suspended or expelled
from the incumbent union because of dual unionism engaged in at a time when a
question concerning representation could have been raised, where the employer
knows or "can be presumed to know" that the ground for the action by the in-
cumbent union is the employee's dual unionism during the "protected period"-
the so-called Rutland Court doctrine.4'
Counsel for Respondent and for the Intervenor, on the other hand, relying upon
the union-security provisions of the contract, as amended, defend the discharges
of the two principal groups of employees, and, in part, as to the temporary em-
ployees, on the ground that these employees were expelled from the incumbent
union by reason of their loss of good standing, and subsequently discharged
under the provisions of a legally existing contract requiring membership in good
standing in that union as a condition to their employment.
(1) The effect of the "Amendment to Articles of Agreement," dated April 23,
1946, upon the "Articles of Agreement," dated May 25, 1945, and the union-security
provisions thereof
The collective bargaining agreement between Respondent and the AFL Car-
penters, executed on May 25, 1945, for a term of 3 years, expiring on May 31,
4' Mohler did not testify in the Board's case in chief, but was called as a rebuttal wit-
ness. Since this evidence was received , by stipulation of all parties, for the sole purpose
of rebutting Grebel's testimony that he conducted himself with complete neutrality, no
finding of interference , restraint , or coercion is based on these remarks. Nevertheless
this testimony, which impressed the undersigned as wholly credible and trustworthy, is
indicative of Respondent 's motivation in discharging Mohler.
0 Matter of Rutland Court Owners , Inc., 44 N . L. R. B. 587 ; 46 N. L . R. B. 1040.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1948, provided for reopening at the-instance of either party on at least 60 days'
notice prior to any anniversary date, solely for the purpose of negotiating with
regard to "wages or payment of overtime." In addition to the usual provisions,
covering hours of employment, wages, holidays, seniority, vacations, and the like,
the agreement provided for a combination of closed-shop and preferential hiring,
and compulsory check-off of dues. The pertinent-provisions follow :
ARTICLE-I
WHO MAY BE EMPLOYED
(a) The Manufacturer [Respondent] agrees to employ on the work coming
under the jurisdiction of the Union [AFL], only members of the Union who
are in good standing and hold the currect (sic) quarterly working card of
the Union, and/or those who have signed application for membership in the
Union and have paid the required initiation fee.
(b) All men and women coming under the heading Maintenance and Pro-
duction and all the various divisions of manufacturing and miscellaneous
labor, other than clerical, executive and inspection, shall be required to
be in good standing with the Union. To be in good standing, it shall be re-
quired that employees show evidence to the Shop Steward that their dues
are paid for the current month.
(c) When the Union cannot furnish a sufficient number of qualified mem-
bers as stated above, after having received forty-eight hours' notice of the
need of additional workmen, then the Manufacturer may employ whomever
he sees fit until such time as the Union can furnish qualified qualified (sic)
members, providing, however, that any workmen so employed who are not
members of the Union, shall make application for membership in the Union
before the next meeting of the Union. New employees without previous
experience shall serve a probation period of two weeks before making appli-
cation for membership.
ARTICLE XII
VACATIONS
* * * * *
(b) The Union will submit to the company by the fifteenth (15th) day
of each month, a statement of the amount due the Union by each member.
The Company will deduct the amount due from each member's pay check
the last pay day of the month and transmit the total deductions to the
authorized representative of the Union.
* * * * * * *
ARTICLE XIII
EFFECTIVE PERIOD OF AGREEMENT
This agreement shall be in full force and effect until May 31, 1948,
except that in the event that either party hereto should desire any change
as to wages or pertaining to wages or payment of overtime, the Party
desiring such change shall so notify the other party at least sixty (60)
days prior to any anniversary date of the contract of the desire for such
change. Only such changes-as herein mentioned may be taken up prior to
the final expiration date. It is agreed by the parties hereto that nego-
HORN MANUFACTURING COMPANY, INC. 1215
tiations for any desired change shall be started within fifteen (15) days
after the notice of such desired change has been received.
In actual practice, the closed-shop provision was enforced subject to the
qualification in Article I (c), permitting Respondent to employ nonunion men
in the event the AFL after appropriate notice, was unable to furnish qualified-
members in sufficient numbers. The provision for compulsory check-off was
not enforced until the late summer or early fall of 1946, some 16 months after
execution of the contract, when earlier objections by AFL members were finally
overcome, and Respondent was so notified by the Union. Respondent thereupon
commenced to check-off dues, and continued to do so until March 1947, when the
events already related transpired.
By letter dated March 29, 1946, the AFL notified Respondent of its desire
"to renegotiate the articles of agreement as well as wages and overtime as
prescribed in article XIII" of the contract, in view of the changes and increased
employment in the plant. Consequently, after a number of conferences, a
memorandum entitled "AMENDMENT TO ARTICLES OF AGREEMENT," dated
April 23, 1946, was executed, by the terms of which new wage rates were estab-
lished covering the job classifications, and certain increases granted employees,
effective April 29, 1946, to all those within the classifications employed for more
than 30 days prior to that date. In addition, certain changes in vacations
were made.
The memorandum further provided :
ARTICLE III
(f) All men employed on and after April 29, 1946, and all men now
working who have not been in the employ of the company for thirty days,
shall be considered as temporary employees for the first thirty days of
their employment, during which time they may be discharged. if it is
found that their work is not satisfactory. After such thirty day probation
period has passed, they shall be eligible to Union Membership and to the
benefits provided in this agreement.
Finally, the memorandum concluded :
Except for such changes as are noted in this Amendment, the original
Articles of Agreement made as of June 1, 1945, by and between the parties
hereto, shall remain in full force and effect.
Agreement as to certain minor matters, involving smoking privileges, and
eating lunches during working time, was apparently reached, but not included
in the written memorandum. Only those matters mentioned above were covered
in the agreement. The terminal date of the collective bargaining agreement
remained unchanged. It should be noted that the agreement provided for
reopening only for the purpose of renegotiating changes "as to wages or per-
taining to wages or payment of overtime . . . prior to the final expiration
date."
Counsel for Respondent, as well as for Intervenor, contend that the effect
o° Article III (f) of the amendment converted the union-security provisions of
the contract from a closed shop to a union shop. Board counsel, on the other
hand, relying upon the similarity of the provision here involved to that in the
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Fireman case ," which the Board held failed to meet the requirements of the
closed shop, and, hence , deprived the employer of the right to rely thereon for
justification of the discharge , maintains that "if sub-paragraph ( f) has any
effect upon the union security provisions of the contract , that effect is to convert
the contract to an open shop contract as it relates to the employees described."
While it is true that the language of the amendment under consideration,
standing alone, appears to fall within the stricture of the Board 's decision in
the Iron Fireman case, the case is distinguishable . First, and this involves a
determination of whether , as contended by Respondent and the Intervenor, the
"Amendment to Articles of Agreement " superseded the original contract and,
in effect, constituted a novation , that is to say, a new contract for a term of 2
years, the period from April 23, 1946, to May 31, 1948, the original terminal date,
or, as contended by Board counsel , the contract in effect during the crucial
period was the original 3-year contract , as modified by the amendment of April
23, 1946. It may be noted parenthetically that with respect to this issue both
counsel , as well as his opponents , appear to have adopted positions inconsistent
with their own theories . Thus, if, as Board counsel contends , the union -security
provision in the amendment is to be construed standing alone, without reference
to the original contract, his position , that the original 3-year contract , as amended,
is determinative of the rights of the persons affected, seems untenable. On the
other hand , if, as contended by his adversaries , the union -security provisions ap-
plicable to the issues of the case are to be determined in the light of the closed-
shop provisions of the original contract , as amended , it is difficult to see how
the position can be maintained that the amendment resulted in a new 2-year
contract, particularly since the amendment is silent as to the requirement of
membership in the union by employees on the pay roll prior to April 29, 1946,
the effective date as to new employees or those employed for less than 30 days.
Board counsel , in his brief, adverts to testimony by President Horn in which he
expressed conflicting views as to the effect of the amendment upon the union-
security provisions , testifying , first, that he regarded the amendment as con-
verting the contract from a closed shop to a union shop , and later , that the
paragraph in question converted the contract to an open-shop contract, an in-
consistency which was never reconciled . It is clear , however, from the record
as a whole that in actual practice the contract was applied by both Respondent
and the Intervenor as a union -shop contract , and that all employees on the pay
roll prior to April 29 , 1946 , were required to remain members of the union, and
that employees hired after that date , as well as those employed less than 80
days at the time, were, if still employed at the expiration of the probationary
period , required to "be eligible to Union membership and to the benefits provided
in this [Amendment to Articles of Agreement ] agreement ." To construe this
latter phrase in isolation, and hold that this provision merely required new em-
ployees to "be eligible" for membership in the union, without requiring member-
ship as a condition of employment , after the expiration of the probationary period,
would ignore the significance of the concluding paragraph of the amendment :
48Matter of Iron Fireman Vanufacturing Company, 69 N. L. R. B. 19, where, in constru-
ing the following provision, "All new employees who are employed by the Employer shall be
given a trial period of thirty days or less. If found satisfactory at the expiration of thirty
days, they shall make application to join the Union ," the Board held that the language
failed to meet the requirements of a closed-shop, observing, "In view of the stringent require-
ments of closed-shop provisions, it is not too much to require that the parties thereto
express the essentials of such provisions in unmistakable language " See also, Matter of
Pittsburgh Plate Glass Co., 66 N. L. R. B. 1083; Matter of G W. Hume Co., 71 N. L. R B.
533 ; Matter of Scientific Nutrition Corporation d/b/a Capoline Packing Corporation,
71 N. L. R. B. 1003.
HORN MANUFACTURING COMPANY, INC. 1217
Except for such changes as are noted in this Amendment, the original
Articles of Agreement made as of June 1, 1945 ' by and between the parties
hereto, shall remain in full force and effect.
Thus, it is apparent that all the provisions of the original contract, except as
modified by the amendment, were expressly reaffirmed. It follows, therefore,
that ARTICLE I (a), (b), (c), the union-security provisions of the original con-
tract, must be deemed to have been reaffirmed, subject to the modification as
to new employees, and the extension of the probationary period from 2 weeks to
'30 days. The amendment respecting the union-security provisions, that on and
after April 29, 1946, after a 30-day probationary period, employees "shall be
eligible" for membership in the union, must be read in the light of the original
union,-security provisions, above referred to, and cited earlier, in which Re-
spondent agreed to employ "only members of the Union who are in good standing,"
holding the current quarterly working card, "and/or those who have signed ap-
plication for membership in the Union and have paid the required initiation fee."
The undersigned, therefore, concludes that the principle enunciated in the
Iron Fireman case is inapplicable to the facts of the instant case. The under-
signd further concludes that the effect of the amendment was, not, as contended
by Board counsel, to convert the closed-shop provision into an open-shop pro-
vision, but to convert the closed-shop provision to a union shop, with respect
to persons employed on and after April 29, 1946, those then employed less than
30 days, and those employed less than 30 days thereafter b0
(2) Good standing within the meaning of the contract should be construed as
requiring merely evidence of the payment of curren dues, and not good stand-
ing within the meaning of the Union's constitution, bylaws or other obligations
to the Union
Counsel for the Board contends that the good standing of the employees must
be determined by the plain and unambiguous definition contained within the
contract, and not by extrinsic evidence as to the meaning of good standing,
especially inasmuch as the definition contains no reference to the union's con-
stitution, bylaws, or other obligations. The definition in the contract contained
in ARTICLE I (b) provides:
All men and women coming under the heading Maintenance and Pro-
duction and all the various divisions of manufacturing and miscellaneous
labor, other than clerical, executives and inspection, shall be required to be
in good standing with the Union. To be in good standing, it shall be required
that employees show evidence to the Shop Steward that their dues are
paid for the current month. [Emphasis supplied.]
In view of the plain and unambiguous language of this provision, counsel
contends, any parol evidence of a contrary intent or interpretation by the parties
would violate the parol evidence rule. Moreover be argues, no clear and con-
vincing evidence was offered that the parties intended that good standing should
be determined by the provisions of the union's constitution or bylaws, or that
the matter was even discussed prior to the execution of the original contract.
On the contrary, the evidence established that the contract, prepared and drafted
by a representative of the AFL Carpenters, was accepted and executed by Re-
spondent without question.
Drawing an analogy from the principle of strict interpretation, regarding union-
security provisions, ennunciated by the Board in the Iron Fireman case, counsel
The actual date of the agreement is May 25, 1945. The error probably resulted from
the fact that the terminal date of the original contract is May 31, 1948.
60 Of the 37 employees discharged on March 19, 13 had been hired prior to April 29, 1946,
and 1, on April 29; of the 15 discharged' on March 25, 6 had been hired prior to April 29,
and 1 , on that date.
1218 DECISIONS OF "NATIONAL; t LABOR, iRELATIQNS BOARD
urges that if the, parties-had intended that"criteria other 'than payment of dues
should determine good standing,'the parties should -have so provided by express
language in the contract, and that, -in view of the,'clear and unambiguous lan-
guage of the provision, particularly since it was. drawn by, the union, the failure
,to, incorporate references to requirement. of good standing within the con-
-templation of the union's constitution and bylaws, should be resolved against
the parties. Since, therefore, it is undisputed that all the employees involved
An the discharges, excepting Larson and Mohler, temporary employees, who were
mot required to be members of the union as a condition of employment, were
in good standing with respect to their payment of dues, their dues having been
checked off, counsel continues, Respondent could not lawfully accede to the
union's demand for discharge, irrespective of any other grounds the union might
have had for suspending or expelling those members. The undersigned finds
this contention to have merit, and adopts the same. In view of other factors
involved, however, the undersigned does not posit his ultimate findings on this
ground alone.
,(3) Failure to post or circulate the original contract among the employees
deprives Respondent from asserting the union security provisions as a defense
to the discharges
In asserting this contention, Board counsel relies upon the Board's decision
in Electric Vacuum Cleaner," holding, in part, that the failure by an employer
:to notify employees of the existence of a closed-shop provision precluded the
employer from relying upon such a provision in justification of the.discharge
because of nonmembership in the contracting labor organization.
While the testimony of Personnel Manager Parsons disclosed that a copy of
the original contract was posted at the old plant, where a comparatively small
number of employees were engaged, he was unable to state that the same had
been posted at the new plant where by far the greater number of employees,
many of whom had been hired long after the contract was executed, were
employed. The preponderance of the reliable, credible and substantial evidence,
however, including the testimony of many Board witnesses, although with some
exceptions, discloses that they were advised by Parsons at the time of their
,employment, or soon afterward, of the union-security provisions prevailing at
the time they were hired. Under these circumstances, and upon the facts
revealed by this record, the undersigned concludes and finds that adequate
notice of the existence of the union-security provisions was communicated to
the employees at or soon after commencement of their employment. This con-
tention is, therefore, rejected.
(4) The application of the Rutland Court doctrine
The final contention of Board counsel, and the one upon which he apparently
places greatest reliance, is the proposition which has come to be referred to as
the Rutland Court doctrine. The Board and the Courts have had occasion to
pass upon and reexamine the principle enunciated by the Board in that case.
The Board there was confronted, as it has been on numerous occasions since,
with the task of accommodating the basic and fundamental principle of the
employee's free choice of bargaining representative guaranteed under the Act,
to the necessity and desirability of affording union security and stability of the
bargaining relationship. In reaching a solution to this problem, and recon-
ciling these conflicting interests, the Board concluded that, while the proviso
a Matter of Electric Vacuum Cleaner Oompany, Inc ., 18 N. L. R. B. 591, reversed, 120
F. (2d) 611 (C. C. A. 6), reversed by the Supreme Court, 315 U. S. 685, enfd. Board
Decision and Order without modification.
HORN MANIIFACTIIRING COMPANY, INC. 1219
to Section 8 (3), permits the execution of a closed-shop cbntract'with a' duly'
designated majority representative of the employees, it does-'nbt- require' or
justify an employer, in complying with the closed-shop provision; to `disch'arge
the employee,' when the employer has knowledge that the discharge is"sought
by the ' contracting union in reprisal against the empl'byee for :engaging in
activities on behalf of, a rival union, and where such activities are conducted
during a period when it is appropriate for the employee' td `seek' a` redeter-
mination of bargaining representatives. The problem has cdn`fronted`th'e Board
and the Courts in an almost infinitive variety of factual situations, but the under-
lying principle as stated is applicable to the instant case, upon' this phase.52
It will be seen, therefore, that before this doctrine can be applied here, it
must be determined (1) whether Respondent, in acceding to the AFL Carpenters"
demand for the discharge of the employees involved, had knowledge that the'
discharges were sought by the union in reprisal against the employees for'
having engaged in activities on behalf of a rival union, and (2) whether the
activities engaged in by the employees on behalf of the rival union were
conducted during a period when it was appropriate for them to seek a re-
determination of representatives. 13
(1) Respondent's knowledge that the AFL Carpenters' demand for the dis-
charges was based upon the dual unionism of the employees involved
The record convincingly establishes that Respondent was not only fully
aware of the FE-CIO organizational campaign prior to February 28, 1947, when
Peter Fritz, the first of the employees involved herein was discharged, but
that it was fully cognizant of his dual unionism, as shown by President Horn's
reference to the Board decision in the Reed Roller Bit case, and its effect on
"Jurisdictional disputes." That Respondent anticipated the AFL Carpenters
demand, does not" alter the fact that Respondent, while assigning other grounds,
in part, was actually motivated in discharging Fritz by his known activities
on behalf of the rival FE-CIO. Moreover, it will be observed, the AFL Car-
penters was not long in notifying Respondent, orally on March 11, and in writ-
ing on March 19, when similar notice regarding employees suspended by the
union that day was delivered, of Fritz' alleged loss of good standing, following
his trial on charges of dual unionism. It is evident, therefore, not only from
this, but from the position asserted by Respondent at the threshold of the
hearing that Respondent regarded Fritz' alleged loss of good standing as
determinative of his rights.
The issue, with respect to Elwood Nelson, expelled from the AFL Carpenters
for alleged espousal of communism, of whether Respondent, in acceding to the
union's demand for his discharge, knew or could be "presumed to know" that
the real reason for the demand was Nelson's dual unionism, is somewhat more
difficult to resolve. Employer knowledge of an incumbent union's purpose in
demanding the discharge of an employee pursuant to a union-security provision
may be inferred from evidence of information within the possession of the
employer in the same manner in which notice is customarily proved in other
situations 64 And while the Board has not squarely held that there is a duty
63 Wallace Corporation v. N. L. R. B., 323 U. S. 248; Local No. 2880 v. N. L. R. B., 158
F. (2d) 365 (C. C. A. 9), cert. granted 67 S. Ct. 1305; N. L. R. B. V. American White Cross
Laboratories, 160 F (2d) 75 (C. C. A. 2) ; Matter of Rutland Court Owners, Inc., 44
N. L. R. B. 587, 46 N. L. R. B. 1040; Matter of E. L. Bruce Company, 75 N. L. R. B. 90.
5a Matter of Southwestern Portland Cement Co., 65 N L. R. B . 1; Matter of Durasteel
Co., 73 N. L. R. B. 941.
"Matter of Diamond T. Motor Car Co., 64 N . L. R. B. 1225 ; Matter of Spicer Manufac-
turing Corp., 70 N. L. R. B. 41 ; Matter of Colgate-Palmolive-Peet Co., 70 N. L. R. B. 1202 ;
Matter of E. L . Bruce Co., 73 N. L. R. B . 992; Matter of Duraateel Co., 73 N. L. R. B. 941.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the part of an employer to inquire into the circumstances under which a
union has expelled a member, an employer may not close his eyes to evidence
tending to , establish that dual membership was the basis for the expulsion.,
Particularly is this true, where, as here, the existing union- shop contract ex-
plicitly required no more than evidence of payment of dues to establish good
standing, and, inasmuch as the contract provided for check-off of dues, the
determination of good standing within the meaning of the contract was readily,
ascertainable by Respondent.
The record, moreover, discloses that Respondent, in addition to the knowledge of
the activities of the FE-CIO prior to Nelson's discharge, and the filing of the_
representation petition, had discharged Fritz, advancing as a ground the Board's
decision in the Reed Roller Bit case ; that Respondent was aware of Fritz' trial
on charges of dual unionism ; had been orally advised of his expulsion the same
day Nelson's discharge had been demanded ; was aware of the provision in the
contract defining good standing, was, in short, as the Board said in the Durasteel
case, "in possession of all the objective facts which counsel for the Board proved,
at the hearing and on the basis of which [the Board] concluded that dual union,
activity was the reason for the expulsions." b6 The alacrity with which Re-
spondent, after momentary reluctance, acceded to the union's demand for dis-
charge, in view of all the existing circumstances and background, justifies the
conclusion that-Respondent was aware that the demand for the discharge was
based upon Nelson's dual unionism, rather than his alleged espousal of com-
munism, the reason advanced by the Union. The undersigned has so found.
With respect to the two principal groups of employees discharged on March 19
and March 25, respectively, the record clearly establishes that these employees
bad been suspended, and later expelled by the AFL Carpenters, because they had
worn CIO campaign badges at the plant. Inasmuch as these badges were worn
openly and notoriously, were observed by Superintendent Slughter, Foremen
Coats, Grebel, Grunwald, and others, and, before the actual discharges, by Per-
sonnel Manager Parsons ; and in view of the fact that only the badge-wearers
were singled out for discipline by the AFL Carpenters, it is undeniable that Re-
spondent was not only aware of their adherence to the FE-CIO, but that their
discharge was demanded because of what the union regarded as flagrant evidence
of their dual unionism 68
The record establishes that on the morning of March 19, the first occasion when
badges were worn at the plant, AFL Carpenters officials noted the names and
clock numbers of the employees involved, and openly circulated a "petition" dur-
ing working,time, for the ouster of the badge-wearing employees. Later in the
afternoon, during working time, Foreman Coats notified employees of the meet-
ing to be held in the wagon-box department, soon afterward, employees congre-
gated in that department, machinery was shut-down, and, in a meeting lasting
at least a half-hour, attended, accprding to the credible testimony, by Foremen
Olson, Alpers, and Seibert, notwithstanding that their attendance at union meet-
ings was proscribed by the union, the badge-wearing members of that organiza-
tion were summarily suspended.
as "Certainly," the Board observed, "[the respondent] made no effort to determine from
[the union] the extent. if any, to which dual unionism was considered in determining the
penalty." Matter of Durasteel Company, supra
56 During the hearing, counsel for the Intervener made considerable point of evidence
that, although a number of AFL Carpenters members had signed membership applications
in the FE-CIO, it had been decided not to penalize such members, particularly those who
subsequently revoked their earlier action, unless and until they actually wore badges at
the plant The undersigned regards this as wholly immaterial, inasmuch as the issue is'
whether the employees were entitled to engage in union activity, without limiting them
to mere application for membership, in a lawful attempt to change their bargaining repre-
sentative at'the particular time in question. ' I '
. I
- '
HORN MANUFACTURING COMPANY, INC. 1221
In addition to the antecedent events which have already been adverted to, in-
cluding the demand for recognition on March 3, and the filing of the representa-
tion petition next day, on March 18, the day before, the, first 'group of -mass dis-
charges, Regional Director James M. Shields, in a conference with Respondent's
officials and AFL Carpenters' representatives, had discussed at length the issue
of the effect of the contract upon the pending representation petition, and had
advised that, in his opinion, it constituted no bar to an election . Nevertheless,
with knowledge of the possible consequences of acceding to a demand for the dis-
charge of employees for rival union activities, during a period when a question
concerning representation was in issue, Respondent yielded next day to the de-
mands of the incumbent union. Whether in so doing Respondent capitulated
to threats of a strike or damage suits 'for breach, of contract. by the incumbent
union is immaterial to the issues herein. It is certainly well-settled that this
affords no ground for defense.
Again, when FE--CIO Representative Fischer appeared at the plant soon after
the suspension from membership on March 19, and under the impression that
the badge-wearers had already been discharged, warned Personnel Manager Par-
sons of the consequences of their discharge, in view of the pending question
concerning representation, Parsons, though stating that the employees had not
been discharged, but had merely been suspended, nevertheless, later acceded to
AFL Carpenters' demand. This action, moreover, was taken, notwithstanding
the fact that on the morning of March 19, Regional Director Shields had noti-
fied Respondent's counsel that he had received an unfair labor practice charge
from the FE-CIO representative, and had warned that if Shields' interpretation
of the contract as a 3-year contract was correct, any further discharges would
be made at Respondent's peril. The overwhelming evidence clearly establishes,
therefore, that Respondent was fully aware at the time it discharged the group
of badge-wearing employees on March 19, that their discharges were demanded
because of their dual unionism. This knowledge, however, did not deter it from
discharging these employees, nor from subsequently discharging the second group
on March 25, for precisely the same conduct, and under substantially the same
circumstances.
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes and finds that Respondent discharged the two groups of employees on
March 19 and March 25, with actual knowledge that these employees had been
suspended from the AFL Carpenters because of their advocacy of the FE-CIO and
their dual unionism.
It remains to be determined
(2) Whether the activities engaged in by the employees on behalf of the rival
union were conducted during a "protected" period-a period when it was ap-
propriate for them to seek a redetermination of their bargaining representative
Resolution of this issue necessarily depends upon a determination of whether
the term of the original 3-year contract was affected by the amendment executed
on April 23, 1946. Counsel for the Board argues that it was not ; counsel for
the Intervenor and for the Respondent contend that the amendment resulted in
a new contract from April 23, 1946 to May 31, 1948.
To support the latter position, counsel for the Intervenor sought, by means of
leading and suggestive questions, to elicit evidence through management and
AFL Carpenters officials that when the parties executed the amendment, they
intended to enter into a new contract for a term of 2 years. Plager, the AFL
Carpenters' financial secretary, went so far in his testimony as to state that
when the amendment was submitted to the union membership for approval, he
844340-50-vol. 83-78
1222 DECISIONS, Oh",NATIONAL.'LABOR -RELATIONS -BOARD
.objected on the ground: thatthe contract did not expressly state,that-it was a
new 2-year contract. Assuming his testimony to be true, the record discloses
that this objection was never communicated .to Respondent, and that the amend-
ment was executed without complaint. Moreover, despite similarly leading and
suggestive questions, Auditor McCollough, who testified that he, prepared and
drafted the amendment in accordance' with his understanding of the intention
of the parties, failed to support the position that the parties intended that nego-
tiations, culminating in the amendment, should result in a new 2-year contract.
While evidence of the intention of the parties during the negotiations was,
received, in the interest of "affording all parties full opportunity to litigate issues
deemed relevant and material, examination of the pertinent provisions in the
documents involved discloses no ambiguity in the meaning of those provisions.
The original contract, dated May 25, 1945, provides :
This agreement, shall be in full force and effect until May 31, 1948, except
that in the event that either party hereto should desire any change as to
wages or pertaining to wages or payment of overtime, the Party desiring
such change shall so notify the other party at least sixty (60) days prior
to any anniversary date of the contract of the desire for such change. Only
such changes as herein mentioned may be taken up prior to the final expira-
tion date." (Emphasis supplied.)
It is clear, therefore, that the original contract was for a term of 3 years, subject
to reopening for the sole purpose of negotiating wages and overtime. The docu-
ment executed on April 23,67 expressly entitled, "AMENDMENT TO ARTICLES
OF,AGREEMENT," sub9tituted for Article.III (d), dealing with wages, a para-
graph establishing new wage rates ; added a new subsection, (e), granting wage
increases effective April 29, 1946, to all employees,, within specified classifica
tions, who had been employed more than 30 days prior to that date; and (f),
extended the probationary period from 2 weeks.to 30 days, as to all persons
covered by the contract employed on and after April 29, 1946, and those employed
less than 30 days on that date, and further provided that, after such 30-day
probationary period, such employees should be "eligible to Union Membership
and to the benefits provided in this agreement." The remaining provision pro-
vided for the substitution for ARTICLE XII VACATIONS, in the original agree-
ment, of a new vacation schedule. The closing paragraph of this agreement is
significant :
Except for such changes as are noted in this Amendment, the original
Articles of Agreement made as of June 1, 1945 (sic), by and between the
parties hereto, shall remain in full force and effect.
It will be noted that the terminal date of the original contract remained
undisturbed.
Thus, it is clear, that, except as indicated, the amendment reaffirmed and rati-
fied the original contract in all other respects. Although the original contract
made no provision for reopening, with respect to vacations, or change in the
probationary period, in view of modern industrial conditions, and the advanced
stage of collective bargaining, the, undersigned concludes that both these modi-
fications are sufficiently encompassed within the subjects for which the contract
could be reopened. In any event, the nature of the modifications was not of such
a nature as to justify the conclusion that the parties by their conduct intended
m It is noted that the amendment was executed less than 60 days of the annivbrsary
date. Since , however, the record indicates that negotiations were commenced some time
prior to April 23, and since no issue has been raised with respect to the timeliness of the
reopening , and undersigned has assumed for the purpose of this case that appropriate
notice of the desire to reopen the contract was given.
HORN MANUFACTURING, COMPANY, INC. ' 1223
to,negotiate a new contract, or that that was the legal effect thereof. The under-
signed concludes, therefore, that the contract in effect at all times material
herein, was the original 3-year contract, as amended, which continued in effect
for the unexpired term of 2 years.
Inasmuch as there was a complete absence of proof in the record that 3-year
contracts were customary in the industry here involved, it follows that the
original contract was for a period of unreasonable duration and, hence, con-
stituted no bar to a representation proceeding initiated at the end of, or subse-
quent to, the first year 68 Since, therefore, the activities engaged in on behalf
of the rival union here commenced, at the earliest, in January 1947, some 8 months
after the first anniversary of the original contract, and since it appears, more-
over, from the timing of this activity, and the FE-CIO's assertion in the repre-
sentation petition that the contract expired May 25, 1947, that the activities were
designed to effect a change of bargaining representative at the expiration of the
date asserted therein, it further follows that the activity occurred during a
protected period.
Nor does the Board's modification, on February 28, 1947, in the Reed Roller Bit
case," of its previously existing policy, affect the conclusions herein. There, in
the interest of promoting greater stability in industrial relations, the Board
held, as a matter of policy, that contracts for terms of 2 years, regardless of
whether customary in the industry were not of unreasonable duration, and con-
stituted a bar to an election, until shortly before their terminal date. More
recently, on August 25, 1947, since the close of the hearing in the instant case,
the Board implemented this policy by holding, "The same reasons of industrial
stability contemplated by the Reed Roller Bit case impel the conclusion that
contracts of unreasonable duration shall during their initial 2-year period be a
bar to a representation proceeding." 80
These decisions represent no departure from the basic principles applicable
to the underlying issue in this case, namely, the right of employees covered by
a contract containing union-security provisions to seek a redetermination of
bargaining representatives at an appropriate time. The Board's approach to
the problem of accommodation between the objective of stability in industrial
relations and that of freedom of employee choice of bargaining representative
at reasonable intervals, has, from the beginning, been empirical. Prior to
the Reed Roller Bit decision, it had determined, on the basis of its experience
up to that time, that in the absence of unusual circumstances, such as indus-
trial custom, contracts for more than 1 year would not operate as a bar to a
determination of representatives at the expiration of that period. "This policy
accorded to long-term contracts and contracts of indefinite duration the maximum
effect as a bar compatible with the right of employees to change their bargaining
representatives ; the policy was a result of the Board's decisions which held that
contracts for terms exceeding 1 year were of unreasonable duration." 61 Sub-
sequent experience has since persuaded the Board that stability in industrial
relations would better be promoted by extending the period for which a contract
69 Matter of Boulevard Transit Lines, Inc., 71 N. L. R. B. 719, in which the Board
further held , "An agreement of 3 years ' duration will not bar an election unless the party
urging the contract as a bar proves that a 3-year contract term is reasonable ; and the
burden is thus on the Employer and the Intervenor in this case to prove that the abnormally
long term of the 1944 contract is customary in the industry in which the Employer 1s
engaged."
69 Matter of Reed Roller Bit Company, 72 N. L . R. B. 927.
80 Matter of Puritan Ice Company , 74 N. L. R. B. 1311 ; see also Matter of S. & W. Fine
Foods, Inc., 74 N . L. R. B. 1316 ; Matter of Filtrol Corporation, 74 N. L . R. B. 1307, in
which the Board applied the same policy to a contract for an indefinite term.
Si Matter of Puritan Ice Company , supra, and cases cited therein.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be a bar to 2 years, and its policy was modified accordingly. The basic
principle, however, remained unchanged.
Even if this latest policy, first enunciated by the Board on the very -day of
Fritz' discharge, and nearly 2 months after the earliest manifestation of activity
on behalf of the rival union, were to be applied here, it is clear that the activity
occurred toward the close of the second year of a 3-year contract, and was de-
signed to effect a change of representative at the end of the second year. In-
asmuch as the Board has not yet determined the precise period of time, prior
to the expiration, or automatic renewal date of a contract, during which a
question concerning representation might be raised-the sol-called "protected
period," the undersigned concludes, in view of the "expiration date" stated by
the FE-CIO in its petition, that the activity was ,intended to effect' a change of
representative after May 25, 1947, and occurred during the protected period.
Assuming, however, but contrary to the undersigned's finding, that, as con-
tended by Intervenor and Respondent, the negotiations in April 1946 resulted in a.
novation-a new contract for the balance of the 2-year term from April 23,
1946, to May 31, 1948,-it is submitted that the Board policy existing prior
to February 28, 1947, which accorded protection to a contracting union for
only 1 year, should be applicable, and that the activity designed to effect a
change of representative after May 25, 1947 more than a year after the initial
date of that "contract," April 23, 1946, would similarly be protected.
To apply retrospectively a policy which in no way changed the "substantive
law," but merely modified the period during which the contract would be im-
mune from challenge by a rival union, would not only unjustly penalize em-
ployees, who, in reliance on previously established Board policy, engage in
activities designed to effect a change in bargaining representative at a time,
which the Board, had theretofore held was appropriate, but would result in
denying employees the right to seek a change in bargaining representative at a
time previously held to have been appropriate; for fear that the Board might
subsequently further modify its policy, and hold that contracts of longer dura-
tion than 2 years might constitute a bar, and thereby adversely affect the rights
of employees who engage in activity during a period then protected under
existing Board policy.
In view of all the foregoing circumstances, and upon the entire record, the
undersigned concludes and finds that the activity of the employees herein in-
volved, occurring at a time when they were entitled to seek a change in bargaining
representative, and -reasonably calculated to bring about an election at an appro-
priate time, was protected under the Act.82
It is further found that, by acceding to the demands of the AFL Carpenters
for the discharge of employees involved herein, with knowledge that their dis-
charges had been demanded because of their dual unionism during a period
when their right to engage in activities designed to effect a change of bargaining
representative was protected, Respondent has discriminated in regard to the hire,
tenure, and terms or conditions of employment of said employees, thereby
discouraging membership in the FE-CIO, unlawfully encouraging membership in
the AFL Carpenters, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7, in violation of Section 8 (1)
and (3) of the Act.
That Respondent, in discharging the various employees herein involved was
motivated, not only by a misconception of its obligations under its union-security
62 See Matter of Durasteel Company, supra; cf. Matter of Southwestern Portland Cement
Co., 65 N. L. R. B. 1. t
HORN MANUFACTURING COMPANY, INC. 1225
contract with the AFL Carpenters, but, in addition, by an attitude of opposition
.and hostility to the FE-CIO, is demonstrated by the statments of supervisors,
already mentioned, as well as the remarks of management officials, and the fol-
lowing episodes, occurring during the organizational campaign.of that organiza-
tion. Thus,
On the night of Peter Fritz' trial on February 28, Foreman Grebel, after talking
to the Horn Brothers, informed Employee Gordon E. Porter that "if the Car-
penters Union lost his case they would close down as of midnight."
Early in March, Foreman Ewald Grunwald observed, during a lunch hour
discussion among employees, that the CIO would never get into the plant.
In a conversation with Foreman Grebel on March 14, when Gordon E. Porter
commented that no welders had been hired recently, Grebel observed that Re-
spondent "could get welders but they figured they would be more or less C. I. O."
The Friday after the discharge of the first 37 employees on March 19th, in
response to an inquiry by Virgil G. Julius as to Grebel's opinion of the CIO,
Grebel stated that Personnel Manager Parsons had informed him that the
plant was "an A. F. of L. plant and would always remain that way."
On March 21, while working on the night shift, in a conversation with Homer
L. Wicks, Foreman Grebel, after deploring the "trouble" at the plant, remarked,
"I can tell you one thing, that the fellows that are out, they will never get back
in." He continued, "The CIO will never get into this plant even if * * *
they have to shut down for 5 years or more. In fact, they [Respondent] would
go so far as to take and sublet all the work that they have been doing, let it
out to different companies." 63
Following the discharge of the group of 37 employees on March 19, and prior
to the subsequent discharges of March 25, Foreman Grebel, in the presence of
Merle Enfield, remarked to James Spitler that he had just come from the Horn
brothers and had been authorized to tell the employees that the "boys out at
the gate could stand out there until next year * * * and holler and this
would still be an A. F. of L. plant."
About 2 weeks after his discharge on March 19, Orville Schonert returned to
the plant for his vacation pay. In a discussion with Personnel Manager Par-
sons, the latter remarked that he had always approved of his work, and asked
him if he did not consider that he had erred in joining the C. I. 0., suggesting
that if he believed that he had, he might apply to the AFL to lift the charges
so that he might be reinstated. Parsons volunteered that the CIO would never
get into the plant, that the discharged men "would never get back in and that he
would hate to be in [FE-CIO Representative] Fischer's shoes if we didn't, if we
found we never would come back." Parsons observed that he presumed that
Schonert would report to Fischer what Parsons had said. In a subsequent en-
counter with Grebel, after Spitler's discharge, several weeks before the hearing,
68 This finding is based upon the credible and persuasive testimony of Wicks. Although
Grebel testified at first that he did not recall making the remarks attributed to him, and
later denied making them to Wicks or anyone else, he testified that he recalled a conver-
sation with Wicks at the time, in which Wicks spoke of the CIO, observing that he was
actually the CIO organizer at 'the plant and "hated to see Pete Fritz getting all the credit
for it " According to Grebel, he abstained from any comment. In view of the fact that it
was common knowledge in the plant that 37 employees who had worn CIO buttons in the
plant on March 19, several days earlier, had been discharged , it is unlikely that Wicks
would have readily acknowledged such extensive participation in the organizational cam-
paign to his supervisor. The undersigned rejects Grebel's version of this encounter, and
finds that Grebel made the statements substantially as testified by Wicks.
1226 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
Grebel further remarked that "the best thing we could do was to run Pete Fritz
and Harold Fischer out of town." B6
Upon the basis of the foregoing, and upon the preponderance of the reliable,
probative, and substantial evidence in the record, as a whole, the undersigned
concludes and finds, that by discharging and thereafter refusing to reinstate
Peter Fritz, Elwood Nelson, Glenn Larson, Cecil Mohler, and the two groups
of employees discharged on March 19 and March 25, respectively, named in
"Appendix A," annexed hereto, because of their affiliation with or activities on
behalf of the FE-CIO, thereby discouraging membership in one labor organiza-
tion, and encouraging membership in another ; and by the statements of Per-
sonnel Manager Parsons, and various management officials and supervisors, here-
inbefore related, Respondent has interfered with, restrained, and coerced its
employees in the exercise of their right to self-organization guaranteed under
the Act, in violation of Section 8 (1) and (3) thereof."
E. Alleged misconduct on the picket line
In consequence of a decision reached at an FE-CIO meeting on the night of
March 24, and pursuant to earlier authorization on March 17, a picket line was
established at the plant Friday morning, March 28. The picket line was main-
tained until about noon, Saturday, March 29, when Respondent obtained a pre-
liminary injunction limiting the number of pickets. The sheriff, his deputy,
and a State Highway patrol officer, were present outside the plant Friday and,
on the following day, an additional State Highway patrol officer was present.
Picketing on Friday was peaceful and, except for one episode, without un-
toward incident. Some 150 or 160 employees, many of them in an automobile
cavalcade led by Robert Horn, entered the plant without interference or hin-
drance. According to the corroborated, though vigorously denied, testimony of
Ernest Thompson, however, as he attempted to drive his car into the plant, Dar-
win Hottman, one of the employees discharged on March 19, broke the radio
antenna and rear vision mirror on the outside of Thompson's car, and dented
the left fender with a club. Although Thompson did not actually see Hottman
strike the fender, the circumstantial evidence, including evidence of Hottman's
position with relation to the car, and the presence of a club in his hand, reasonably
establishes that Hottman actually inflicted the damage.
"Although the statements attributed to the above foremen, whose supervisory status
is not disputed , were generally denied or purportedly explained , the undersigned found
their denials or explanations unconvincing, in contrast to the credible and persuasive testi-
mony of the persons who testified to them . The undersigned has taken cognizance of the
fact that these foremen were admitted to membership in the AFL Carpenters, and that
their wage rates were covered by the collective bargaining agreement, and the amendment
thereto. Although, as members of the bargaining unit, they were entitled to the same
freedom of speech and expression of opinion as other employees , it is clear from the entire
record that Respondent, by the statements and conduct of responsible management officials,
encouraged, authorized, or ratified the foremen's activities, and acted in such a manner
as to lead the employees reasonably to believe that the foremen were acting for and on
behalf of management. See R. R. Donnelley & Sons Co. v. N. L. R B , 156 F. (2d) 416
(C. C. A. 7), enf'g 60 N. L R. B. 635, cert. denied, 329 U. S. 810; see also, Matter of The
Hartford Courant Company, 64 N. L. R. B. 213. It is significant that, although Respondent
was aware of the membership of its foremen in the AFL Carpenters, and knew of the rival
organizational campaign, it took no steps to notify its employees of the company's neu-
trality or to attempt to neutralize the effects of any anti-FE-CIO statements by such
supervisors. Cf. Matter of Houston Shipbuilding Corporation, 56 N. L. R. B. 1684;
Matter of Arkansas -Missouri Power Corporation, 68 N. L. R. B. 805; see also, Matter of
Humble Oil & Refining Company, 48 N. L. R. B. 118, gnf'd 140 F. (2d) 777 (C C. A. 5).
86 Section 8 (a) (1) and ( 3) of the Act, as amended by the Labor Management Rela-
tions Act, 1947.
HORN MANUFACTURING COMPANY , INC. 1227
On Friday night, Robert Horn announced to the employees that police protec-
tion would be provided the following day. Next morning, pickets appeared with
6 or 8 railroad ties attached to chains , and with clubs, sticks , and similar
weapons. The railroad ties were flung across the driveway from time to time
to impede ingress of automobiles into the plant. Some ties were flung across
automobile hoods. Automobiles were damaged, windows broken , and attempts
made to upset cars . One picket was injured , whether deliberately or acci-
dentally is not clear , by an automobile driving into the plant , and another
picket was either injured by an automobile , or was, as Strait, the operator,
himself testified , assaulted about the head by Strait with his fists, after the vic-
tim and others, according to Strait , had attempted to upset his car, had seized
the ignition keys, and dragged him out from under the steering wheel.
While the sequence of these episodes is hazy in the record , it was undisputed,
that Maben , Plager , and about 25 or 30 other employees who had succeeded in
entering the plant , returned to the gate , carrying 3-foot lengths of connecting
hose, to which were attached metal ends . Others in this group were armed
-with various weapons . By the time they reached the gate, FE-CIO Representa-
tive Fischer had armed himself with a lug wrench , and other pickets, with
clubs and rocks. No actual encounter , however ensued . Apart from this inci-
dent, acts of violence attributed to the pickets were generally denied by those
who testified . As to this particular incident , the vigorously disputed and con-
flicting evidence , affords no adequate basis for determining which group was
the aggressor . Despite the presence of peace officers , no attempt was made to
intervene, and no charges of breach of the peace were filed , or arrests made.
Admittedly , according to Plager , Fischer , during this episode, pleaded with the
AFL Carpenters representatives for a peaceful settlement.
Witnesses for both Respondent and Intervenor testified to the presence on
the picket line of various employees , previously discharged , in some instances
attributing particular acts of violence to specific individuals . It is doubtful,
however, in view of the milling pickets and the melee which occurred that testi-
mony regarding such incidents was generally reliable .' Among the dischargees,
named in the complaint , whom these witnesses identified as pickets , and whom
they implicated in specific acts of violence , were, in addition to FE-CIO Repre-
sentative Fischer , Peter Fritz, Peter Frank , Charles Eastwood , Homer Wicks,
Harold Miller , Glenn Larson, Virgil Hearn , Darwin Hottman , Ronald Scott,
Orville Schonert , Elwood Nelson , Dennis Wasko , Robert Lochray, Richard Sheker,
and John Andrejka.
The evidence, received over strenuous objection of Board counsel, on the
ground that it was not within the issues as framed , and vigorously denied
by alleged participants who testified , was specifically limited, in its offer, by
both Respondent and Intervenor , to purposes of impeachment of credibility
of persons involved , and was, by specific concession, not relied on as a ground
for denial of reinstatement , except as to Larson and Mohler . As to Larson,
there was credible and corroborated testimony , though denied by him, that
while Larson was engaged in picketing on Friday , he hurled a hammer through
the rear window of the car of Richard Wilcox. The undersigned found Larson's
denials unconvincing , and does not credit them . This misconduct is regarded
as of sufficient gravity to justify denial of reinstatement . Since Respondent
specifically advanced this misconduct as a ground for refusing him reinstatement,
and since the record sufficiently supports this ground , the undersigned will
not recommend that Respondent be required to offer him reinstatement. As
to Mohler , the record is barren of any evidence that he engaged in misconduct
on the picket line, and it will , therefore , be recommended that he be offered
1228 DECISIONS OF NATIONAL. LABOR RELATIONS-BOARD
reinstatement, and that he be made whole for any loss of pay he may have
sustained.
Violence on a-picket.line of the type-suggested by this record is to be rigor-
ously condemned, and would, if sufficiently established, abundantly Justify
the denial of reinstatement to discharged employees found to have engaged
in such misconduct. The undersigned, mindful of the fundamental purpose
of the Act to encourage settlement of industrial disputes by resort to the
orderly machinery provided therein, has given serious consideration to the
question of whether reinstatement of the remaining employees found to have
been the victims of discrimination, would effectuate the purposes of the Act,
in view of the evidence respecting misconduct on the picket line. He has con-
cluded, however, that the state of the record does not afford an adequate basis
for withholding the usual remedy. First, because it is evident, even on the
state of this record, that members of the AFL Carpenters must share to a very
substantial extent culpability for engaging in acts of violence, which Respond-
ent took no effective steps to halt. Nor, so far as this record discloses,
did Respondent discipline any of the employees, members of the AFL Car-
penters, who engaged in such misconduct. Second, because Respondent, as
well as the Intervenor, in offering evidence of alleged misconduct on the
picket line, imposed an express limitation upon the purpose for which the
evidence was offered, namely, for the sole purpose of impeachment. Inasmuch
as the record establishes, as Board counsel urges in his brief to the under-
signed, that he relied upon this limitation, it cannot be said that the issue
of the effect of the alleged misconduct upon the right of employees to reinstate-
ment, was sufficiently litigated to afford a basis for a determination whether
particular employees involved herein engaged in unlawful conduct sufficient to
warrant withholding reinstatement 88 It will, therefore, not be recommended
that the employees, as a whole, except as already indicated, be denied reinstate-
ment. Nevertheless, in view of the clear and convincing evidence of flagrant
misconduct by Darwin Hottman in inflicting damage to a car of another em-
ployee, which Hottman was specifically ,afforded an opportunity to deny, and
which was substantially litigated, the undersigned regards that the purposes
of the Act would not be effectuated by requiring that he be offered reinstate-
ment, and will, therefore, not recommend that he be made such offer.
The undersigned has, 'however, carefully weighed and considered the
evidence of alleged misconduct on the picket line in evaluating the credibility
of the witnesses involved, and has concluded that their credibility has not been
adversely affected thereby.
F. Allegations of misconduct by Board agents
It was charged at the hearing by counsel for Respondent and Intervenor, that
agents of the Board at the Regional Office, particularly Regional Director Shields
and Field Examiner McEachern, had engaged in improper conduct demonstrating
favoritism toward the FE-CIO, and opposition and hostility to the AFL Car-
penters, in the investigation and prosecution of the proceedings here involved.
The evidence offered in support of these charges may be classified generally
under the following categories: (1) evidence of alleged statements by Shields
of favoritism to the CIO and opposition to the AFL; (2) evidence of alleged
impropriety by Shields and McEachern during the conduct of the investigation,
(3) evidence of attempts to induce a settlement by consent election and rein-
statement of discharged employees, and (4) evidence of alleged misdirection by
"The undersigned regards it unnecessary , therefore , to consider the issue of the respon-
sibility of employees on the picket line for any unlawful acts of their fellow -pickets.
HORN MANUFACTURING COMPANY, INC. 1229
the Regional Office to the CIO office of formal notice, in connection with the
proceedings, intended for the AFL Carpenters.
(1) In support of this charge, AFL Carpenters Attorney Mullen, called as a
witness on behalf of Respondent, testified that, during a conference with Shields
at Mullen's office on the night of March 18, 1941, regarding a representation
proceeding involving a union represented by Mullen, Shields made the following
statement, which Mullen purported to quote verbatim :
"... the Wagner Act was not passed for the benefit of the government or
the people or of capital or management; it was not even passed for the
benefit of organized labor generally. It was passed for the benefit of the
CIO and I intend to administer it in exactly that fashion.
Although Mullen testified that he was able to fix the date of this alleged state-
ment by reference to office records relating to matters about which he and Shields
had been conferring, he admitted that he had made no memorandum of the
statement ascribed to Shields, testifying,
"I did not need to have my recollection refreshed because it is a statement
which I have repeated literally hundreds of times in the meantime and one
which I will never forget and I will be able to give you verbatim ten years
from today."
Shields, recalling the conference alluded to, vigorously denied that he had ever
made any statement even remotely resembling the one testified to by Mullen,
pointing out, in passing, that inasmuch as the CIO was not even in existence at
the time of the enactment of the Wagner Act, he could hardly have made such a
remark. Shields; a sincere, forthright, highly intelligent, and convincing wit-
ness, a responsible Board agent for many years, impressed the undersigned with
his integrity, and his denial carried conviction. It is utterly inconceivable that
a representative of the Board in a position of responsibility and trust, would
have delivered himself of such a remark. Moreover, even if he harbored such
views as those ascribed to him, which finds no scintilla of support in the record
apart from that implied in the vehemently disputed statement, it is completely
incredible that a person of Shields' obvious intelligence would have been so
foolhardy as to make such an ill-advised remark to a representative of a rival
union . In view of Mullen's positive testimony, and his insistence on the infalli-
bility of his recollection, the undersigned is impelled to conclude that Mullen
was carried away by his excessive zeal on behalf of his client, frequently mani-
fested by the rancor with which he conducted his client' s case, into the realm of
wishful thinking. Significantly, although Mullen obviously regarded Shields'
statement as a shocking breach of public duty, by his own admission, he at no
time after the alleged occurrence reported the incident to, or lodged any protest
with the Board. The undersigned finds and concludes upon the basis of the
foregoing, and the entire record, that Shields did not make the statement, actually
or in substance, attributed to him by Mullen.
(2) and (3) On the afternoon or evening of March 18, following the futile
attempt to settle the controversy at Respondent's plant, Regional Director Shields
called at CIO headquarters, in response to a telephone call from Fischer, to
receive the unfair labor practice charge. An FE-CIO meeting was in progress
in the hall at the rear of the premises, when Shields was taken into an office where
the charge was prepared, and where Fritz and Nelson were interviewed, and
statements procured. Except while passing through the meeting hall to reach the
lavatory, Shields was at no time present at the meeting. He did not address,the
meeting, and, although he learned from Fischer on the night in question that a
decision had been reached to wear 010 emblems at the plant, contrary to insinua-
tions by Respondent and Intervenor , he was not consulted about, nor did he
1230 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
advise concerning the wearing of emblems, participate in any decisions of the
FE-CIO, or render advice beyond expressing an opinion as to the duration of the
outstanding contract, and the existence of a question concerning representation.
Later, on May 7, 1947, after the hearing on the representation petition had been
held, and the hearing in the instant case had been noticed, Walter M. Allen, AFL
Carpenters International Representative, accompanied by General Representative
Howard Bennett, conferred with Regional Director Shields and Regional Attorney
Reynolds at the Regional Office to protest what they regarded as "raiding" by the
FE-CIO in a dual unionism situation, and in which, according to the AFL
Carpenters Representatives, the Regional Office was taking sides. Although ref-
erence was made by these men, during the course of the conference, to the remarks
attributed by Attorney Mullen to Shields in March 1941, it is evident that the
mention was only incidental, and that they did not attribute much significance
to the alleged remarks. They, too, apparently did not consider either Shields'
alleged remarks or the general attitude of favoritism toward the FE-CIO,
ascribed by them to the Regional Office, of sufficient importance or consequence
to warrant a protest to the Board in Washington.
On March 25,1947, Field Examiner McEachern arrived in Fort Dodge to further
investigate the representation petition and the'unfair labor practice charges. It
is contended that during his stay the next several days, McEachern improperly
counselled and advised the FE-CIO, and engaged in other improprieties. This
conclusion may have resulted from an announcement appearing in FE-CIO leaflets
that a government man would arrive in Fort Dodge for the purpose of addressing
a FE-CIO meeting. The record, however, does not support the contention that
McEachern engaged in any improper conduct: Indeed, although McEachern was
present at the CIO hall on the evening of March 25, while a meeting was in
progress, according to the testimony of Ray PeCoy, a witness on behalf of the
Intervenor, McEachern was merely introduced to those present as a government
man who would ask and answer questions. As persons made statements,
McEachern noted their names, took notes, and later interviewed them individually
at a desk at the far end of the room, where he reduced the statements to writing.
It is obvious that the meeting was utilized to facilitate and expedite the investi-
gation by the Field Examiner of the facts of the case.
Further complaints regarding McEachern's conduct during the course of his
investigation, relate to an interview with Frank Maben, president of the AFL
Carpenters Local. On Wednesday, March 26, McEachern called on Attorney
Mullen, and discussed with him the pending representation petition, and possi-
bility of an election, and the pending unfair labor practice charges. McEachern,
according to Mullen's testimony, informed him that he had completed his investi-
gation of the cases of Fritz and Nelson, as well as the discharges of the
badge-wearers on March 19 and 25. Mullen furnished McEachern with a copy of
the union's constitution, but informed him that he had no copy of the bylaws,
which he agreed to procure. Arrangements were made at McEachern's request,
for an interview with AFL Carpenters' representatives later that afternoon, at
which McEachern questioned Maben and Plager regarding the union meeting
at the plant on March 19, the "petition" which had been circulated for the ouster
of the badge-wearers, and other relevant details. Mention was made of the
bylaws, and it was agreed that a copy would be forwarded to the Regional Office.
Mullen testified that he then inquired whether there was any likelihood of further
developments before the following Monday, inasmuch as Mullen had business
in: Des Moines requiring his presence there. According to Mullen, McEachern
informed him that his investigation had been completed and that he was leaving
Fort Dodge that evening. McEachern's denial that he had,so advised Mullen
HORN MANUFACTURING 'COMPANY, INC. 1231
is credited, especially in view of the undisputed testimony that he had arranged
earlier for a meeting to be held at the plant the following afternoon.
That afternoon , March 27, before the conference, McEachern requested an
opportunity to meet with Maben privately. A meeting was thereupon arranged
by Auditor McCollough in a private office, and, before the interview, at
McEachern 's request, a radio, believed by McEachern to have been an inter-office
communication device, was disconnected. It was contended that during this
interview McEachern, after inquiring whether the device in the office was a
"dicta hone," and insisting on its removal, threatened that unless Maben
consented to an election, McEachern would expose Maben for having met with
FE-CIO Representative Fischer before the initiation of the organizational
campaign . According to Maben, McEachern remarked that although he,
McEachern, did not remember Maben, he knew that Maben had at one time
campaigned for the CIO, a fact Maben admitted to McEachern. McEachern
further reminded him, Maben testified, of the occasion when he had "scabbed"
at the U. S. Gypsum Co., and stated that the FE-CIO intended to publicize the
incident in one of its forthcoming leaflets, but would abstain from doing so if
Maben would agree to an election and reinstatement of, the discharged em-
ployees." Maben further testified that McEachern insisted that the existing
contract was no bar to an election, and that the AFL Carpenters would be
unable to prevent an election, adding that the Board would never sustain the
discharges of the employees. Finally, Maben testified, he informed McEachern
that he would not agree to an election without his attorney, and that further
discussion would be futile.
Soon afterward, Maben continued, he reported to Plager, the AFL Carpenters
financial secretary, the conversation with McEachern, and later repeated to
management officials and their attorney in McEachern's presence what had
transpired , including the remarks allegedly made by McEachern to Maben
privately.
McEachern in his testimony vigorously denied the statements attributed to
him by Maben regarding the latter's having "scabbed" at the U. S. Gypsum
plant, maintaining that he first learned of it from Maben himself. McEachern
further denied mention of the forthcoming FE-CIO leaflet in which this incident
was to be publicized , and generally denied the remaining remarks, except for
discussing the question of contract bar, and insisted that his interview was
directed to an attempted settlement of the complaint case, a proposed form of
which he later produced at the conference with management and AFL Carpenters
representatives. In view of Maben's admission that FE-CIO Representative
Fischer, in a telephone conversation soon after the AFL Carpenters had filed
charges of dual unionism against Peter Fritz, had threatened to denounce Maben
to his fellow-members for "scabbing" at the U. S. Gypsum plant, to which
Maben had retorted that he "didn't give a damn", in view of McEachern's
credible denials, and the credible and undisputed testimony that the particular
leaflet had been prepared sometime after McEachern had left the CIO hall,
the undersigned finds that the reference to Maben's having "scabbed," alleged
by Maben to have been made by McEachern, was in fact made by Fischer on
an earlier occasion, and deliberately or mistakenly attributed by Maben to
McEachern . The undersigned further finds that McEachern did not threaten,
intimidate, or coerce Maben in any way during the interview in question, but
07 Evidence concerning a discussion between FE-CIO Representative Fischer and Maben
in the latter part of December, 194d, concerning this "scabbing" Incident, was stricken
upon motion of Intervenor 's counsel. Later in the hearing, however, he himself reopened
the subject.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempted merely to persuade Maben , as well as management and AFL Car-
penters representatives, to settle the controversy by proper and legitimate means
consistent with McEachern's duties and responsibilities as an agent of the
Board.
(4) Finally, considerable point was made of the fact that a formal com-
munication from the Regional Office, dated March 4, 1947, addressed to the
AFL Carpenters, reached CIO headquarters, before being delivered to the
addressee. Although the undersigned considers the incident trivial and insignifi-
cant, in view of the charges of misconduct made against the Regional Office
generally, it is perhaps deserving of some mention. When first informed of
this, during the course of their investigation, both Shields and McEachern were
unable to offer any explanation, but assured AFL Carpenters representatives
that an investigation would be made. Investigation revealed, as the evidence
at the hearing disclosed, that Walter "Shag" Wagner, recording secretary of
the Packinghouse Workers had received a telephone call, early in March 1947,
from a carpenter whose name he was unable to recognize due to a faulty tele-
phone connection, advising that he had received a letter for the "Mill Local
Union," and that he did not know what to do with it. Wagner suggested that
it be turned over to the CIO. When it was received there, upon discovering that
it was intended for the AFL Carpenters, Fischer instructed his secretary to
enclose it in an envelope addressed to Maben, who received it in due course.
. On the basis of this evidence, it was contended that the Regional Office de-
liberately misdirected mail intended for the AFL Carpenters to the CIO. Apart
from the fact that the evidence utterly fails to support any such contention, the
incident is significant only perhaps as indicating the lengths to which the AFL
Carpenters was prepared to go in an attempt to fortify a belief, approaching
almost an obsession, that the Regional Office had, in effect, conspired with the
FE-CIO in an effort to oust the AFL Carpenters from its position as collective
bargaining representative. The record utterly fails to afford any basis for such
conclusion.
Upon the basis of the foregoing, and upon the entire record, the undersigned
is convinced and finds that the agents of the Board engaged in no conduct in-
consistent with their official duties and obligations, but, on the contrary, exerted
every conscientious effort to resolve the existing controversy by appropriate and
legitimate means, in a sincere and earnest effort to effectuate the policies of
the Act. The charges of alleged misconduct by Board agents are found to be
wholly without merit.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, it
will be recommended that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that Respondent discriminatorily discharged , and thereafter
refused to reinstate, Peter Fritz, Elwood Nelson , Glenn E. Larson, Cecil Mohler,
and 52 employees , named in Appendix A annexed hereto, because of their activi-
ties on behalf of the FE-CIO, and, particularly as to the two principal groups of
employees discharged on March 19 and March 25, respectively, upon the demand
HORN MANUFACTURING COMPANY, INC. 1233
of the AFL Carpenters, allegedly pursuant to a contract requiring membership in
good standing in the AFL Carpenters as a condition of employment, at a time
when, notwithstanding such provision, the employees were entitled to exercise
their right to change or attempt to change their bargaining representative with
complete immunity from discharge under the union-security provisions of the
contract. It will therefore be recommended that Respondent offer each of said
employees, excepting Glenn E. Larson and Darwin Hottman,°8 immediate and full
reinstatement to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges," and make each of them, ex-
cepting Glenn E. Larson and Darwin Rottman, whole for any loss of pay they may
have suffered by reason of Respondent's discrimination against them, by payment
to each of them of a sum of money equal to the amount which he normally would
have earned as wages during the period from the date of his discharge to the date
of Respondent's offer of reinstatement," less his net earnings during such period."
It has been further found that Respondent, through management officials and
supervisors, by various statements hereinbefore related, interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
the Act. In view of this, and since the record discloses that, in discharging the
employees herein involved, Respondent was motivated, not only by, a misconcep-
tion of its obligations under the union-security contract with the AFL Carpenters,
but, in addition, by opposition and hostility to the FE-CIO, and, since, in view of
this evidence, danger of the commission of other unfair labor practices is to be
anticipated from Respondent's conduct in the past, it will be recommended that,
in addition, Respondent be required to cease and desist from in any other manner
interfering with, restraining, and coercing its employees in the exercise of any of
the rights guaranteed employees under the Act.
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. United Farm Equipment & Metal Workers of America, affiliated with the
Congress of Industrial Organizations, and United Brotherhood of Carpenters &
Joiners of America, Millmen's Local Union #1931, affiliated with the American
Federation of Labor, are labor organizations within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of Peter
Fritz, Elwood Nelson, Glenn E. Larson, Cecil Mohler, and the employees named
in "Appendix A," annexed hereto, thereby discouraging membership in United
Farm Equipment & Metal Workers of America, affiliated with the Congress of
Industrial Organizations, and encouraging membership in United Brotherhood
of Carpenters & Joiners of America, Millmen's Local Union #1931, affiliated
with the American Federation of Labor, Respondent has engaged in and is
"As to whom it is recommended that reinstatement be denied for reasons stated in
Section III, E.
00 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible, but if such position is no longer in existence, then to a substantially equiv-
alent 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.
70 The undersigned has considered Section 10 (c) of the Act, as amended, authorizing
the requirement of back pay from the labor organization responsible for the discrimination
suffered by an employee. In view, however, of the provision of -Section 102, of the Act,
as amended, no such recommendation will be made. See Matter of E. L Bruce Company,
75 N. L. R. B. 90.
71 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in unfair labor practices within the meaning of section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise,
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4.. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
'Upon the basis of the foregoing, findings of fact and conclusions of law, the
undersigned recommends that Respondent,, Horn Manufacturing Company, Inc.,
of Fort Dodge, Iowa, its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Farm Equipment & Metal Workers
of America, affiliated with the Congress of Industrial Organizations, or any
other labor organization of its employees, and encouraging membership in United
Brotherhood of Carpenters & Joiners of America, Millmen's Local Union #1931,
affiliated with the American Federation of Labor, or any other labor organiza-
tion, by discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire or tenure of employ-
ment, or any other term or condition of employment, because of their failure
to maintain membership in good standing in a labor organization, except insofar
as said conduct is protected by the proviso to Section 8 (a) (3) of the Act, as
amended, and any other relevant provisions of said Act, as amended, or for
any other reason.
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist United Farm Equipment & Metal Workers of America,
affiliated with the Congress of Industrial Organizations, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
(c) Using, utilizing, or administering the union-security provisions of the
contract, as amended, between Respondent and the United Brotherhood of Car-
penters & Joiners of America,'Millmen's Local Union #1931, affiliated with the
American Federation of Labor, in such manner as to discourage membership
in United Farm Equipment & Metal Workers of America, affiliated with the
Congress of Industrial Organizations, or any other organization of its em-
ployees, by discharging any of them for exercising their right to change their
collective bargaining representative at an appropriate time.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Peter Fritz, Elwood Nelson, Cecil Mohler, and each of the em-
ployees named in "Appendix A," annexed hereto, excepting Darwin Hottman,
immediate and full reinstatement to their former or substantially equivalent'
positions without prejudice to their seniority or other rights and privileges ;
(b) Make whole the said Peter Fritz, Elwood Nelson, Cecil Mohler, and each
of the employees named in "Appendix A," annexed hereto, excepting Darwin Hott-
man, for any loss of pay they may have suffered by reason of Respondent's dis-
crimination against them, by payment to each of them of a sum of money equal
to the amount determined in the manner set forth in the section above entitled,
"The remedy" ;
HORN MANUFACTURING COMPANY, INC. 1235
(c) Post at its plants copies of the notice attached hereto marked "Appendix
B." Copies of said notice, to be furnished by the Regional Director for the
Eighteenth Region, after being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material ;
(d) Notify the Regional Director for the Eighteenth Region in writing,
within ten (10) days from the receipt of this Intermediate, Report, what steps
Respondent has:takem^to comply„tlerewith.
It is further recommended that unless on or before ten (10) days from the
receipt of.this Intermediate Report Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring 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, ally party may,
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 Regulations,
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 Inter-
mediate Report. Immediately upon the filing of such statement 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 permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
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.
IRVING ROQOSIN,
Trial Examiner.
Dated February 12,1948.
APPENDIX A
Employees discharged March 19, 1947
Dearl Butrick Peter G. Frank Herman Hipsbur
Joe C. Beminio Lloyd Garrod Lawrence Hiveley
Clair D. Cochran Hugh Harris Arnold P. Johnson
Fred Campidilli Paul Harris Robert Lochray
Richard Dolan Virgil Hearn Robert Laughlin
Leslie DeWell Darwin Hottman* Duane E. McCollougb
Charles Eastwood Floyd Hoover Donald Murphy
*Reinstatement not recommended.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees discharged March 19, 1947-continued
Dexter R. Mongan J. L. Rosicka Richard J. Sheker
Thomas E. Morgan Howard J. Sheker James J. Tibke
Richard McDermott Ronald Scott Lester L. Christian
Dan O'Connor Richard Sanden Orville Schonert
Paul Peterson Floyd Smith Leo Schwinghamer
Ernest Rodenberg
Employees discharged March 25, 1947
Gordon Porter James Spitler Manley Klinger
Leonard Baker Henry W. Miller Charles Brown
Homer Wicks Dennis Wasko Roy L. Miller
Harold Miller Donald Cook Wayne Hiatt
Virgil Julius Carl Buffington John Ondrejka, Jr.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labot
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist UNITED FARM EQUIPMENT & METAL WORKERS
OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection. All our employees are free to become or remain members of
this union, or any other labor organization.
WE WILL NOT use, utilize, or administer the union security provisions of
the contract, as amended, between us and UNITED BROTHERHOOD OF CAR-
PENTERS & JOINERS OF AMERICA, MILLMEN'S LOCAL UNION #1931, A. F. OF L.,
in such manner as to discourage membership in UNITED FARM EQUIPMENT
& METAL WORKERS OF AMERICA, C. I. 0., or to encourage membership in
UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, MILLMEN'S LOCAL
UNION #1931, A. F. OF L., or any other labor organization of our employees,
by discharging or refusing to reinstate any of our employees or by discrim-
inating in any other manner in regard to their hire or tenure of employment
or any term or condition of their employment, by engaging in activities
directed toward the designation of a new collective bargaining representative
at any appropriate time.
WE WILL NOT discourage membership in UNITED FARM EQUIPMENT & METAL
WORKERS OF AMERICA, C. I. 0., or any other labor organization of our em-
ployees, or encourage membership in UNITED BROTHERHOOD OF CARPENTERS
& JOINERS, MILLMEN's LOCAL UNION #1931, A. F. OF L., or any other labor
organization, by discharging or refusing to reinstate any of our employees,
or by discriminating in any other manner in regard to their hire or tenure
of employment, or any other term or condition of employment, because of
their failure to maintain membership in good standing in a labor organiza-
tion, except insofar as said conduct is protected by the proviso to Section
8 (a) (3) of the Act, as amended, and any other relevant provisions of
said Act, as amended, or for any other reason.
WE WILL OIFER to the employees named below immediate and full rein-
4
HORN MANUFACTURING COMPANY, INC . 1237
statement to their former or substantially equivalent positions, without
prejudice to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered as a result of
the discrimination : Peter Fritz, Elwood Nelson, Cecil Mohler
-Dearl Butrick
Joe C . Beminio
Clair D . Cochran
Fred Campidilli
Richard Dolan
Leslie DeWell
Charles Eastwood
Peter G. Frank
Lloyd Garrod
Hugh Harris
Paul Harris
Virgil Hearn
Floyd Hoover
Herman Hipshur
Lawrence Hiveley
Arnold P . Johnson
Robert Lochray
Robert Laughlin
Duane E . McCollough
Donald Murphy
Dexter R. Mongan
Thomas E. Morgan
Richard McDermott
Dan O 'Connor
Paul Peterson
Ernest Rodenberg
and
J. L. Rosicka
Howard J . Sheker
Ronald Scott
Gordon Porter
Leonard Baker
Homer Wicks
Harold Miller
Virgil Julius
James Spitler
Henry W . Miller
Dennis Wasko
Richard Sanden
Floyd Smith
Richard J . Sheker
James J. Tibke
Lester L . Christian
Orville Schonert
Leo Schwinghamer
Donald Cook
Carl Buffington
Manley Klinger
Charles Brown
Roy L . Miller
Wayne Hiatt
John Ondrejka, Jr.
HORN MANUFACTURING COMPANY, INC.,
Employer.
Dated ------------------- By -------------------------------------------
(Representative ) (Title)
' NOTE : Any of the above -named employees 'presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service • Act after discharge from the armed
forces. _
This notice must remain posted for sixty (60) days from the date hereof,
and must not be altered, defaced , or covered by any other material.
844340--50-vol. 83-79