National Electric Products Corp.

National Labor Relations Board - Board Decisions

Dec 1, 1948

80 N.L.R.B. 995 (N.L.R.B. 1948)

In the Matter of NATIONAL ELECTRIC PRODUCTS CORPORATION and
UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA,
C..I.O.
Case No. 6-C-1147.-Decided December 1, 1948
DECISION
AND
ORDER
On September 4, 1947, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto., Thereafter, the Respondent and
the IBEW filed exceptions to the Intermediate Report and supporting
briefs 2 The requests of the Respondent and the IBEW for oral
argument are hereby denied inasmuch as the record and briefs, in our
opinion, adequately present the issues and positions of the parties.
The hearing in this case was held on July 14 and 15, 1947, before
Trial Examiner R. N. Denham. Shortly thereafter, and before he
had prepared his Intermediate Report in the case, Mr. Denham re-
signed from his position as a Trial Examiner in order to accept a
presidential appointment as General Counsel of the Board. On
August 1, 1947, the Chief Trial Examiner designated Mr. Myers to
prepare the Intermediate Report in this case. The Respondent and
the IBEW have excepted to the preparation of the Intermediate Re-
port by Mr. Myers instead of by Mr. Denham. The Administrative
Procedure Act,3 which, at the time this substitution of Trial Examiners
was made, was controlling with regard to procedure in situations
such as this, provides that an officer who engages in the performance
of prosecuting functions in a case shall not participate or advise in
I The provisions of Section 8 (1) and ( 3) of the National Labor Relations Act, which
the Trial Examiner herein found were violated , are continued In Section 8 (a) (1) and
(a) (3) of the Act, as amended , by the Labor Management Relations Act, 1947.
2 After the Issuance of the Intermediate Report, the Respondent flied a Motion to Reopen
the Record, contending that the UE had not complied with Section 9 (f), (g), and (h) of
the Act, as amended . This motion is hereby denied . We are not precluded by failure of a
charging union to comply with Section 9 (f), (g), and ( h) from adjudicating complaint
cases which arose prior to the amended Act ]latter of Marshall and Biuce Co, 75
N. L R B. 90.
5 USC See. 1001, et seq (1946).
80 N. L. R. B., No. 151.
817319-49-vol 80-64 995
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decision or recommended decision of that case.4 Upon his ap-
pointment as General Counsel, Mr. Denham became responsible for
the further prosecution of this case, and was therefore precluded from
preparing the Intermediate Report. The APA provides that the
same officer who presides at the reception of evidence shall make the
recommended decision, except where such officer becomes unavailable
to the agency.5 [Emphasis supplied.] It is true that, subsequent to
the designation of Mr. Myers to prepare the Intermediate Report,
Section 10 (c) of the Act, as amended by the Labor Management Re-
lations Act, 1947, became effective. Section 10 (c), as amended, pro-
vides that the examiner before whom evidence is presented shall pre-
pare the Report. However, the APA provides that "no subsequent
legislation shall be held to supersede or modify the provisions of this
Chapter except to the extent that such legislation shall do so ex-
pressly." s As the amendment of Section 10 (c) does not expressly
supersede or modify the APA in this respect, we find that Mr. Denham
became "unavailable" to the Board, and that the designation of Mr.
Myers to prepare the Intermediate Report was therefore proper.
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 briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of Mr. Myers, with the exceptions and modifications set forth
below :
1. The discriminatory termination of Marfia's employment
The Trial Examiner found that the Respondent violated Section 8
(3) of the Act by suspending Frank Marfia from employment. We
agree with the Trial Examiner's finding that Marfia was discrimi-
nated against under the principles enunciated in the Rutland Court
case.'
Marfia, an employee of the Respondent since 1929, had been presi-
dent of the IBEW in 1945. While in that capacity, he had helped
to organize the UE campaign. He resigned his position as president
of the IBEW after it was certified by the Board on January 21, 1946.
About March 1, 1947, he renewed his organizational activity in be-
half of the UE. By a letter dated March 7, 1947, signed by Walter
Mugford, a field representative for the UE, the Respondent was in-
4Ibid. Sec. 1004 (c).
E Id.
Ibid, Sec. 1011.
' Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587 ; 46 N. L . R. B. 1040.
NATIONAL ELECTRIC PRODUCTS CORPORATION 997
formed that the UE was engaged in an organizing campaign and
that the IBEW was contemplating punitive action against employees
suspected of joining the UE; and the Respondent was cautioned
against discharging employees at the demand of the IBEW. A vig-
orous pamphleteer's battle ensued between the UE and IBEW,
which came to the attention of the Respondent.
On May 8, 1947, at approximately 1: 30 p. m., the IBEW notified
Woods, Respondent's employment manager, that Marfia was no longer
in good standing with the IBEW, and requested that his employment
be suspended. Woods relayed this request to Biggs, Respondent's
works manager, who asked the IBEW's representative the reason for
the suspension, and was told that it was Marfia's failure to appear
at an IBEW hearing.
At approximately 3 o'clock, the end of the morning shift, Marfia
was called into Woods' office and notified by Woods of his suspension
from the IBEW and his resulting suspension from employment.
Marfia asked Woods for notice in writing of his suspension from em-
ployment and for permission to bring in a witness. A few minutes
later, Marfia returned with Mugford, whom he introduced to Woods
as a representative of the UE. Woods repeated his statement that
Marfia had been suspended by the IBEW and that the Respondent
was suspending him from employment. Mugford told Woods that
the IBEW had suspended Marfia for dual union activity, and re-
quested that Marfia be allowed to report to work the following
morning.8
We find, as did the Trial Examiner, that this activity of Marfia on
behalf of a rival organization, which occurred at an appropriate
time toward the close of the contract period, was the reason for the
IBEW's suspending Marfia from membership 9 and obtaining his
suspension from employment. The Respondent contends that at the
time Marfia's employment was terminated, it did not have sufficient
knowledge of the reason for his suspension by the IBEW to bring it
within the requirement as to knowledge laid down in the Spicer 10 and
8 Woods stated at the hearing that he had no definite knowledge of Marfla's dual union
activity prior to his suspension, but, with regard to rumors which had circulated, he
said , "Well , of course , I wouldn 't know just exactly the first day I heard any rumors,
but off and on he was connected with it belonging to the two uni :ns "
O The Respondent and the IBEW contend that the charge against Marfia-"working
in the interest of any organization or cause which is detrimental to or opposed to the
IBEW"-is sufficiently inclusive to cover a variety of charges unrelated to dual unionism;
and also that Marfia was actually suspended not for his dual union activity but for failure
to appear at the IBEW hearing. We agree with the Trial Examiner that the IBEW's
demand for the suspension of Marfia from employment was induced by the dual union
activity of Marfia and would not have occurred but for that activity . See Matter of
Durasteel Company, 73 N. L. It. B. 941.
10 Matter of Spicer Manufacturing Corporation , 70 N. L . R. B. 41.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond-T 11 cases. We conclude that the advice to the Respondent
that the IBEW contemplated punitive action against UE advocates,
the vigorous organizational campaign which was carried on by both
Unions, and the timing of the IBEW's request for his suspension
from employment, put the Respondent on notice that Marfia was sus-
pended by the IBEW for his activities in behalf of the UE 12 Fur-
thermore, we find that Mugford's statements to the Respondent's
employment manager, made immediately following his order of
suspension, were an integral part of the entire single transaction, and
constituted timely notice to the Respondent that its action was dis-
criminatory and violative of Section 8 (3) of the Act 13
The Trial Examiner concluded that the contract between the
Respondent and the IBEW did not justify the termination of Marfia's
employment, because it contained no provision requiring an employee
to remain a member of the IBEW as a condition of employment.14
The Respondent asserted in its brief that the IBEW was responsible
tract by which the Respondent "agrees to employ only members" of the
IBEW, when read in conjunction with the further provision that
union dues shall be deducted from the wages of all employees, con-
stitutes a union-shop agreement; and that any ambiguity which may
appear on the face of the contract should be resolved by reference to
the actions of the parties throughout a period of several years during
which the contract was consistently interpreted and enforced as re-
quiring continued membership in the IBEW. We conclude that the
contract in question contains sufficiently clear language to constitute
a valid union-shop contract, and not merely a preferential hiring
contract, as the Trial Examiner found.
The Respondent asserted in its brief that the IBEW was responsible
for Marfia's suspension, and that it would be inconsistent with the
policy of the amended Act for the Board to hold the Respondent
responsible for the acts of the IBEW. As we have previously stated.'
Section 10 (c) of the Act, as amended, which authorizes the Board to
require back pay of a labor organization responsible for discrimination
suffered by an employee, cannot be given retroactive effect so as to
govern the results in the present case. The events occurred, the com-
plaint issued, and the hearing was held before the effective date of the
1947 amendments to the Act.
11 Matter of Diamond-T Motor Car Company, 64 N. L. R. B. 1225.
1' See Matter of Lewis Meier & Company, 73 N. L R B. 520.
13 Member Gray dissents from the finding that Marfia was discriminatorily discharged
for reasons expressed in his separate opinion . Chairman Herzog and Member Houston
join Member Reynolds and Member Murdock in finding a violation of Section 8 (3) with
respect to Marfia.
74 The provisions of the contract are set forth on pages 3 and 4 of the Intermediate
Report.
11 Matter of E. L. Bruce Company , 75 N. L. R. B. 522.
NATIONAL ELECTRIC PRODUCTS CORPORATION 999
2. The alleged discrimination against the picketers
On the evening of May 8, 1947, after Marfia's discharge, a small
group of men met at Marfia's house. In addition to Marfia, who
presided at the meeting, and his wife, several employees of the Re-
spondent and 1 or 2 UE national representatives were present. They
agreed to hold a protest meeting the following morning, and made up
placards announcing this meeting and carrying such messages as
"Marfia Fired, Who will be next?" None of the signs identified the
UE. Shortly before 7 a. in. on May 9, 1947, Marfia and 5 other
employees, 4 of whom had been present at the meeting the night before,
picketed the front entrance of the plant. The picketing was peaceful,
but it induced some 300 employees, out of the 1,200 on the day shift,
to remain away from work. Two or 3 of the 5 picketers were pick-
eting on their own time and worked their regular shift that afternoon;
the others remained away from work in order to picket. The following
week, each of the picketers was suspended by the Respondent for a
few days as a penalty for the picketing. At the time of the hearing
all 5 had been reinstated. The Trial Examiner concluded that the
formation of the picket line by these 5 employees constituted pro-
tected activity, that it was not in violation of the contract between
the Respondent and the IBEW, and that the Respondent's disci-
plining of them constituted discrimination against them in violation
.of Section 8 (1) and (3) of the Act.
We are unable to agree with the Trial Examiner that the complain-
ants were engaged in protected concerted activity. Although not
mentioned in the Intermediate Report, the record shows that the col-
lective bargaining contract then in effect contained a clause providing
that "should any dispute arise between the Company and the Union
-or any employee and the Company . . . there shall be no interrup-
tion or impeding of the work, work stoppages, strikes or lockouts on
account of such differences, but an earnest effort shall be made to
settle such differences in accordance with [the established grievance]
procedure, . . ." We are convinced that the concerted activity of the
5 complainants, who engaged in or induced the strike in protest
against Marfia's discharge, was violative of the agreement and, that,
in accordance with established precedent, the Respondent was privi-
leged to discipline them for their wrongful action.s
It is true, as the dissent of Member Houston points out, that the
wrongful action of the complainants was caused by the Respondent's
unfair labor practice in discharging employee Marfia. However, the
'ON. L. it. B. v. Sands Mfg. Co., 306 U. S. 332; Matter of Fafnir Bearing Company,
73 N. L. R. B. 1008; Matter of Joseph Dyson & Sons, Inc., 72 N. L. R B. 445; and Matter
of Scullin Steel Company, 65 N. L . R. B. 1294; ef . Matter of Dorsey Trailers , Inc., 80
N. L. R. B. 478.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's conduct, although regrettable, does not, in our opinion,
excuse the complainants' breach of their agreement. The Act was
designed to encourage collective bargaining as a substitute for strike
action. The right to strike, although protected by the Act, may be
waived by the employees in an agreement concluded through the
collective bargaining process. Thus, in our opinion, there is no
basis for the conclusion of our dissenting colleague that we have de-
prived the employees "of a basic right" to strike, since the employees
themselves waived their right to strike during the life of the agree-
ment. As we have heretofore emphasized, "no-strike" clauses, like
the one herein, are designed to forestall the use of even permissive
economic weapons and to substitute settlement by collective bargain-
ing, and tend to realize the purposes of the Act by encouraging the
practice and procedure of collective bargaining rather than resort to
industrial warfare.17 No convincing argument has been made as to
how it would effectuate the expressed purposes of the Act to regard
this employer's unfair labor practice as sufficient justification for over-
riding the salutary objective of a "no-strike" clause. While it may
be true that in the instant case it would have been futile for the em-
ployees involved to have invoked the grievance machinery of the con-
tract with respect to the discriminatory discharge of Marfia, their
rights were nonetheless protected by the Act, obviating any necessity
for breaching their agreement.
Our order herein against the Respondent remedying the discrimin-
atory discharge of Marfia is adequate assurance to employees that
within the framework of the Act they may adhere to their agreements
and at the same time be fully protected against their employer' s unfair
labor practices. In our opinion, under the circumstances here present,
the purposes of the Act can best be effectuated by requiring employees
to honor their "no-strike" commitments and rely on the remedial
processes of the Board.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, National Electric
Products Corporation, Ambridge, Pennsylvania, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its em-
ployees, by discriminatorily discharging employees, or by discrimi-
nating in any other manner in regard to their hire or tenure of em-
ployment or any term or condition of their employment;
17 Matter of Singer Manufacturing Company, 24 N. L . R. B. 444, 467.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1001
(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 any 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, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act : 18
(a) Offer Frank Marfia immediate and full reinstatement to his
former or a substantially equivalent position 19 without prejudice to
his seniority or other rights and privileges;
(b) Make whole Frank Marfia for any loss of pay he may have suf-
fered by reason of the Respondent's discrimination against him, by
payment to him of a sum of money equal to the amount he normally
would have earned as wages during the period from May 8, 1947, the
date of the Respondent's discrimination against him, to the date of the
Respondent's offer of reinstatement, less his net earnings during said
period;
(c) Post at its plant at Ambridge, Pennsylvania, copies of the no-
tice attached hereto and marked "Appendix A." 20 Copies of said
notice, to be furnished by the Regional Director for the Sixth Region,
shall, after being duly signed by the Respondent's representative, be
posted by it immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the allegations of the complaint
that the Respondent, by disciplining the picketers, violated Section 8
(1) and (3) of the Act, be, and they hereby are, dismissed.
CHAIRMAN HERZOG, concurring :
I join in the result reached by the majority in this case, because
I believe that it provides a common-sense resolution of a controversy
18 Member Gray dissents from Section 2 (a) and ( b) of this Order, but Chairman
Herzog and Member Houston join in it.
11 See Matter of The Chase National Bank of The City of New York, San Juan , Puerto
Rico, Branch , 65 N L. R. B. 837.
20 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words : "DECISION AND ORDER" the words :
"DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that reflects credit on neither of the parties. The discharge of Marfia
was discriminatory under Rutland Court precedents,21 and it was the
cause of the strike and picketing which violated the contract. This
resulted, in turn, in the brief suspension of the men whose conduct
gave offense to the Company. On this set of facts, I too would deny
back pay to the employees for the period of that suspension. Em-
ployees who hastily invoke economic self-help in breach of contract
in Rutland Court situations, which present particularly difficult
problems for employers, should not be encouraged to expect this
Board to insure them against all the possible consequences of their
use of that self-help. Least of all should we read the law so as to
encourage their doing so in a case in which the discipline imposed by
their employer was reasonable and mild.
I am unwilling, however, to join in all of the majority opinion as
written, because it seems to me both unnecessarily and unwisely broad
in its implications. If the opinion is intended to constitute a general
extension of the salutary Scullin and Dyson doctrine" to all strikes
caused by employer unfair labor practices which also happen to be
in violation of no-strike clauses, I am not prepared to join in such
a formulation of the law. For it seems to me likely to encourage the
commission of unfair labor practices of such provocative magnitude
that, human nature and the Board's delays being what they are, em-
ployees can reasonably be expected-or intended-by their employer
to turn to what would prove to be suicidal self-help.
I bow to no one in endorsing the execution and observance of no-
strike clauses in collective bargaining agreements. But such clauses
ordinarily contemplate a pledge by one party not to strike or lock-out
during the term of a contract because of any conduct by the other
party relating to its provisions or to their other normal relations.
In the absence of an express provision to that effect, I do not see how
such a clause can also be taken to disclose an intention by either
party to include a pledge never to use self-help in the event of a seri-
ous violation of law by the other. If a contract does not preclude
self-help in such circumstances, its use cannot constitute a breach of
that contract. And if there is no breach, this Board may not apply
the Scullin-Dyson rule.
MEMBER HOUSTON, dissenting in part :
I am in full agreement with the majority that the discharge of
Marfia was discriminatory. I must, however, dissent from the con-
clusion of my colleagues that the suspension of the picketers was not
n Matter of Rutland Court Owners, 44 N. L. R. B. 587; 46 N. L. R. B. 1040.
u 65 N. L. R. B. 1294; 72 N. L. R. B. 445. These cases both involved purely "economic"
strikes in breach of contract.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1003
a violation of the Act because I consider that they were engaged in
concerted activity protected not only by the Wagner Act but also
under the recent amendatory legislation.
Although this is a case of first impression, the Board has established
a number of guide posts in past decisions which, in my judgment,
clearly draw a line beyond which disciplinary action by an employer
would not be permitted despite the fact that his employees had en-
gaged in concerted activity in violation of contract. Most pertinent
in this connection is the Scullin Steel case in which the Board found
that an employer properly discharged employees who engaged in a
strike in violation of a contractual provision binding them not to
strike during the term of their agreement. We were careful to note,
however, in that decision that that employer, quite unlike the employer
here, had not engaged in any unfair labor practices. The direct
implication of such language was that had such unfair labor practices
been shown, a different result would have followed. I should have
thought that here where the record is very clear that the discharge
of Marfia-an unfair labor practice of the most fundamental char-
acter-was the direct cause for the picketing we would be bound by
the implication in the Scullin Steel case. But the majority has de-
termined that no protection ought to be given because the employees
should have relied upon the "remedial processes of the Board." What
this amounts to is that employees may be deprived of a basic right
because an administrative remedy for their complaint exists. My
colleagues must be aware, however, that the amendments of 194T
which placed restrictions in a number of instances on the right to
strike disclose in their legislative history a total rejection of the
idea that the right to strike should be restricted further in the manner
now utilized by the majority. Omitted from the Labor Management
Relations Act of 1947 was a provision passed by the House outlawing
"any strike . . . to remedy practices for which an administrative
remedy is available under this Act." Moreover, Section 13 of the
present Act reenacts the guarantee of the Wagner Act of the right to
strike except as specifically limited by the present Act. I have been
directed to nothing in the present legislation from which it can be
even inferred that 'Congress intended a limitation of the nature
imposed by the Board here.
Of course, it is true, as my colleagues state, that no-strike clauses
are substitutes for economic warfare, and, consequently, are very
salutary supports to industrial peace. However, such commitments
are found in agreements which must have some inhibitory effect not
only on the employees but also on employers. It is something less
than just to say that an employer who has secured from his employees
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a relinquishment of their basic right to strike may remain, neverthe-
less, quite unhampered in whatever arrangements he has made to
impose heavy penalties on his employees solely because they protested,
in a traditional way, his disposition to violate the law 23 And it is
something less than equitable to hold that he may do so with impunity
merely by insisting that he has a contract forbidding his employees to
protest. Yet a decision of this character permits exactly such a result.
MEMBER GRAY, dissenting in part :
I cannot agree with the findings of my colleagues that Marfia was
-suspended from employment by the Respondent with knowledge
of his expulsion from the IBEW for dual unionism.
As found by the majority, when the IBEW informed Woods, the
Respondent's employment manager, that Marfia was no longer in
good standing and requested his employment suspension, the Re-
spondent did not act upon this request without further inquiry.
Thus, Woods relayed the request to Biggs, the Respondent's works
manager, who then inquired of the IBEW's representative as to the
reason for Marfia's suspension which was the basis for the requested
employment suspension. Biggs was told that the reason for Marfia's
suspension was his failure to appear at an IBEW hearing. It was
only after the Respondent had received this verification that Marfia's
suspension was not connected with dual unionism, that Woods sus-
pended Marfia from employment at 3 o'clock of the same day. Marfia
himself then made no contrary contention. It is clear to me that up
to that time the record affords no basis for a finding that the Re-
spondent knew the true reason to be dual unionism. The mere fact
that such knowledge may have been acquired shortly after Marfia
was suspended from employment does not render the Respondent's
action and its failure to reinstate Marfia violative of the Act, as
this Board has previously held.24 Moreover, I am unwilling to hold
that the subsequent statement of Mugford, a field representative of
the UE, as to the true reason for the suspension, in the absence of
any such contention by Marfia himself, who was in a much better
position to know the actual facts, and in view of the different reason
advanced by the IBEW, was sufficient by itself to constitute the
timely notice essential to a finding of discrimination. Inasmuch as,
in my opinion, the preponderance of the evidence does not support
the majority's finding that the Respondent had timely knowledge of
Marfia's suspension from the IBEW for dual unionism, I must con-
23 Note that the right to strike was being exercised in furtherance of another basic
right guaranteed by Section 7 of the Act-the right of employees to select a bargaining
representative without interference by their employer.
24 Matter of Diamond-T Motor Car Company, supra.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1005
elude that the Respondent's action in suspending Marfia from em-
ployment was protected, and indeed required, by its closed-shop con-
tract with the IBEW and hence not violative of the Act.
I agree with the majority that the strike was caused by the dis-
charge of Marfia; that the concerted activity of the complainants was
in breach of the contract then in effect; and that therefore the Re-
spondent's action in disciplining them was not violative of the Act.
I reach this conclusion regardless of whether the strike be regarded
as an economic one, as I view it, or as an unfair labor practice strike,
as the majority views it.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees
that:
WE WILL NOT discourage membership in any labor organization
or encourage membership in any labor organization of our em-
ployees, by discharging, or refusing to reinstate any of our
employees, or in any other manner discriminating with respect to
their tenure of employment or any term or condition of employ-
ment for engaging in activities directed to the designation of a
new bargaining representative to succeed an existing bargaining
representative at the end of the latter's contract term.
WE WILL NOT by any other acts in any manner interfere with
the efforts of our employees to designate a new bargaining rep-
resentative to succeed an existing bargaining representative at
the termination of the latter's contract term.
WE WILL OFFER Frank Marfia reinstatement to his former or
a substantially equivalent position without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimina-
tion against him.
NATIONAL ELECTRIC PRODUCTS CORPORATION,
Employer.
Dated -------------------- By ------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Henry Shore, for the Board.
Mr. James M. Houston, of Pittsburgh, Pa., for the respondent.
Mr. Walter H. Ifugford, of Pittsburgh, Pa., for the Union.
Messrs. Bernard Kaplan and A. R. Johnson, of Pittsburgh, Pa., for the IBEW.
STATEMENT OF THE CASE
Upon a second amended charge filed June 30, 194', by United Electrical,
Radio & Machine Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by Its Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania), issued its complaint dated June 30, 1947, against
National Electric Products Corporation, Ambridge, Pennsylvania, herein called
the respondent, alleging that the respondent had engaged in and is 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 second amended
charge, accompanied by notice of hearing thereon, were duly served upon the
respondent and the Union, and upon International Brotherhood of Electrical
Workers, affiliated with the American Federation of Labor, herein called the
IBEW, as a party to the contract, the provisions of which are involved in this.
proceeding.
With respect to the unfair labor practices, the complaint alleges, in sub-
stance, that the respondent: (1) on or about May 8, 1947, suspended from
employment and/or discharged Frank Marfia and since that time has refused
to reinstate him because of his membership and activities in the Union and
because he engaged in concerted activities with his co-workers for the purpose
of collective bargaining and other mutual aid and protection, and in order to
discourage membership in the Union; and (2) on or about May 10, 1947, laid
off for a period of 1 week, five named employees because of their membership
and activities in the Union and because they, and each of them, had engaged
in concerted activities with their co-workers for the purpose of collective bar-
gaining and other mutual aid and protection, and in order to discourage mem-
bership in the Union.
The answer of the respondent duly filed on July 10, 1947, admits the allegations
of the complaint concerning the corporate existence of the respondent and the
character and volume of the business conducted by it; pleads lack of knowl-
edge of the nature of the organization of the Union ; denies that the discharges
and suspensions complained of arose in any manner from the union membership
of the employees involved ; and affirmatively avers : (a) that Marfia was sus-
pended from employment on May 8, 1947, upon receipt of a notification by the
duly certified collective bargaining representative of the respondent's employees,
(Local Union D-1073 of the IBEW, with which organization the respondent
was then operating under a union shop agreement) which stated that Marfia
had been suspended from union membership for failure to appear before the
Executive Board of the Union to answer to charges duly filed against him ;
(b) that the five named employees who were laid off on or about May 10, 1947,
for a period of 1 week, were so laid off because on that date they "took posi-
tions immediately in front of the gate to the company's plant in Ambridge, and
by violence, intimidation and otherwise did prevent a large number of respond-
NATIONAL ELECTRIC PRODUCTS CORPORATION 1007
•ent's employees who were due to report for work at said time from entering
the plant."
Pursuant to notice, a hearing was held at Pittsburgh, Pennsylvania, on July
14 and 15, 1947, before R. N. Denham, Esq., the Trial Examiner duly desig-
nated by the Chief Trial Examiner. At the opening of the hearing, the motion
by the IBEW for leave to intervene on the grounds that it has an interest
in the proceeding because of its certification as the collective bargaining repre-
sentative of the employees of the respondent, the existence of the union-shop
contract with the respondent, and that the allegation of an unfair labor prac-
tice against the respondent in connection with the suspension of Frank Marfia
is an attack on the autonomy of the IBEW and an invasion of its right to dis-
cipline its members in accordance with the process set forth in its interna-
tional constitution and in the bylaws of its local union was granted. There-
after the Board, the respondent, the Union, and the IBEW, all being repre-
sented by counsel or by representatives, participated in the hearing with full
opportunity to be beard, to examine and cross-examine witnesses, and to in-
troduce evidence pertinent to the issues. At the conclusion of the taking of
the evidence, Board's counsel moved to conform the pleadings to the proof
as to formal matters such as names and dates and other matters not going
to the issues. The motion was granted without objection Although afforded
an opportunity to do so, none of the parties argued orally on the record nor
did any of them file briefs and/or findings of facts and conclusions of law.
Since the close of the hearing on July 15, 1947, Trial Examiner Denham has
resigned to become the Board's General Counsel. Because no Intermediate
Report with respect to this proceeding has been prepared by the said Denham
prior to his resignation, by special order of the Chief Trial Examiner, dated
August 1, 1947, the undersigned has been designated to act in the place and
stead of the said Denham tor the purpose of preparing and issuing an Inter-
mediate Report in this proceeding. The undersigned has carefully read the
entire record in this proceeding including all the exhibits offered and received
in evidence.
Upon the entire record in the case the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
National Electric Products Corporation, a Delaware corporation, has its
principal office and place of business at Ambridge, Pennsylvania, where it is
engaged in the manufacture, sale, and distribution of steel conduits, wire, cables,
and other electrical equipment. During the past year, the respondent pur-
chased raw materials for use at its Ambridge, Pennsylvania, plant, valued in
excess of $12,000,000, approximately 95 percent of which was shipped from
points located outside the Commonwealth of Pennsylvania. During the same
period, the respondent manufactured at its Ambridge plant finished products
valued in excess of $19,000,000, approximately 88 percent of which was shipped
to customers located outside the Commonwealth of Pennsylvania.
The respondent concedes that it is engaged in commerce, within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical , Radio & Machine Workers of America, affiliated with Con-
gress of Industrial Organizations, and International Brotherhood of Electrical
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers, affiliated with the American Federation -of Labor , are labor organi-
zations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the discriminatory discharge and
suspensions
International Brotherhood of Electrical Workers, affiliated with the American
Federation of Labor, is, and since 1937 has been, by virtue of various elections
and certifications issued by the Board, the duly certified collective bargaining
representative of all production and maintenance employees of the respondent
at its plant at Ambridge, Pennsylvania, exclusive of supervisors, and, on May
8, 1947, was a party to a contract with the respondent dated March 11, 1946,
retroactive from June 1, 1945. The following clauses of the said contract are
the only recitals bearing upon the subject of union security:
The Company recognizes the Employee's right to join a labor union for
the purpose of collective bargaining, and hereby recognizes Local Union No.
D-1073 of the International Brotherhood of Electrical Workers as the
sole bargaining agent in all matters pertaining to wages, hours, and other
conditions of employment for all employees of the National Electric Products
Corporation at the Ambridge Plant, with the exception of supervisory em-
ployees with authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees, and further agrees to employ only
members of the Union or those who have made proper arrangements for
becoming a member within twenty-one days after being employed. The
services of any employee who fails to make application for membership in
the Union within twenty-one days after employment shall be automatically
terminated.
By virtue of having entered into the agreement as members of the Union
and receiving certain advantages therefrom, all employees within the collec-
tive bargaining unit stipulate and the Company agrees, that payroll deduc-
tion shall be made from the wages of each of the employees sufficient to
pay the respective dues of each to the Union. The Company agrees to make
this deduction for the first pay period of each month, (second pay received
each month) to be applied to the following month's account and to send a
check for the total amount-together with a list of the individual's names
for whom the deductions were made-to the Financial Secretary as desig-
nated by the Union on or before the fifth day of the following month. The
amount of dues to be deducted shall be set forth in a letter to the Company
signed by the Financial Secretary and approved by the Executive Committee
of the Union.
On March 1, 1947, Frank Marfia, an employee of the respondent since prior
to 1937, and continuously a member of IBEW since 1937, had made contact with
the Pittsburgh representatives of the United Electrical & Machine Workers of
America and had obtained the collaboration of several of the employees for the
setting up of an organizational campaign within the plant to procure representa-
tion of the employees for that organization. Marfia's home, located in Ambridge,
is a two-story building the second story of which is occupied for living quarters,
and the first floor of which was on March 1, a vacant store. On that date,
Marfia rented the use of a part of the store building to the Union for head-
quarters during the organizational campaign , and from that time on it was used
NATIONAL ELECTRIC PRODUCTS CORPORATION 1009'
for that purpose, although no signs were placed on the outside of the building
to indicate the presence of the Union's headquarters.
On March 7, 1947, the Union wrote to the respondent informing it that an
organizational campaign was being inaugurated, calling attention to the fact
that the current contract which it had with IBEW would expire on June 1,
next, and warning the respondent that under the Act employees who were mem-
bers of the IBEW, pursuant to the provisions of the current contract, were
protected from discrimination in their efforts to effect a choice of a different
collective bargaining representative. The respondent did not reply to this letter.
Shortly following the mailing of the aforesaid letter the Union distributed a
leaflet at the plant to the employees in general , which contained among other
things, the full text of the Union's letter of March 7. Copies of this leaflet came
to the attention of the respondent's executives shortly after its distribution.
The respondent employs about 2230 persons, of whom approximately 1200 are-
employed on the day shift, about 750 on the second shift, and about 250 on the
night shift. By April 10, signed application cards had been received by the
Union from approximately 500 of the employees. On April 28, the Union wrote
the respondent stating that the Union represented a majority of the employees
and claimed recognition as the collective bargaining representative of all the
employees by virtue of such representation. The respondent did not reply to
this letter.
Throughout these organizational activities, Marfia worked in close coopera-
tion with Walter Mugford, field organizer of the Union, and with Charles Newell,_
its international representative, was the recognized leader of the Union's move-
ment in the plant, and was elected chairman of the organizational group. Nu-
merous leaflets were passed out by both the Union and the IBEW between March
1 and May 8, 1947.
On May 7, 1947, the Union filed with the Regional Office of the Board in Pitts-
burgh, a petition for investigation and certification of representatives.
On the morning of May 8, 1947, the Executive Committee of the IBEW, of which.
Nick Kalabokes, an employee with some 22 years' service, was chairman, met at
the IBEW headquarters in Ambridge and drafted a letter of charges against Mar-
fia charging him with conduct detrimental to the IBEW by reason of engaging in,
dual unionism, which letter reads as follows :
To-Frank Marfia, member of Local B-1073, IBEW.
You are hereby summoned to appear before a special meeting of the Iix-
ecutive Board of Local B-1073, IBEW, to answer charges of violation cf
Paragraph nine (9), Section (2), Article (27) of the International Consti-
tution of the International Brotherhood of Electrical Workers.
This meeting to hear your defense of these charges will be held at the
Local Union B-1073 offices on Thursday morning May 8, 1947, at 9: 30 a. m.
Article (27), Section (2), paragraph (9) of the International Constitu-
tion is stated as follows :
Working in the interest of any organization or cause which is detrimental
to or opposed to the IBEW.
At a few minutes before 9 o'clock on the morning of May 8, Kalabokes came
to Marfia while the latter was working at his machine, and after reading the
aforesaid letter aloud to Marfia handed him the letter.
In his excitement , Marfia did not note that the time set for the hearing in the-
letter was 9: 30 a. m., but proceeded on the theory that, as usual with reference
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meetings of the Executive Board, the hearing would be held in the evening at
9: 30 at the Union headquarters. He showed the letter to his foreman, Joseph
Yebak, and asked him for permission to quit work in order to arrange to get the
necessary witnesses and an attorney to represent him at the hearing that evening.
Yebak refused to release Marfia, telling him that he would have plenty of time
to make his arrangements after the quitting hour of 3 o'clock that afternoon.
Marfia then telephoned his wife, told her about the charges, asked her to get in
touch with Mugford or Newell, and also to arrange to have their personal attor-
ney available. A short time later Yebak came to Marfia, advised him to read
his letter of charges again, and told him that he had received orders to release
Marfia immediately, so that he could attend the hearing slated for 9:30 a. in.
Marfia then showed the letter to Leo Smith, one of the superintendents of his de-
partment, and inquired what arrangements would be made about giving him credit
for the time he would be losing at the hearing. Smith, after reading the letter,
advised Marfia to punch out his time card and that the matter of time lost would
be arranged later. Marfia then went to his home, where he telephoned the
IBEW office and talked to a field representative, one Babish, telling Babish that
he had just been released from work, that it was necessary for him to have some
time to gather his necessary witnesses and attorney, and that he would be at the
office for the hearing just as promptly as he could do so, and assured Babish that
in no event would he default on coming to the office for the hearing. In the
meantime, Mrs. Marfia had telephoned Newell in Pittsburgh, which is some 15 or
16 miles distance from Ambridge, and Newell promised to come to Ambridge as
quickly as he could get there. Newell arrived at Marfia's home shortly before
11 o'clock. The attorney who had been expected to represent Marfia was not
available, but his stenographer was called in to take notes of whatever hearing
might take place, and about 11 o'clock, Marfia with his wife, Newell, and the
stenographer, left Marfia's home to go to the IBEW hall, some several blocks
distant. On arrival at the IBEW ball they found Babish as the only occupant
and were advised by Babish that the Executive Board had waited there until
11 o'clock at which time, having decided that Marfia did not intend to appear,
they had taken action to suspend him, and that he would get the appropriate
notice at the plant.
Following the visit of Marfia at the IBEW office, Babish communicated with
Kalabokes, and told the latter that Marfia had arrived at the office just a few
moments after the members of the board had left, demanding a hearing: Not-
x Regarding this, Kalabokes testified as follows :
. . . we [the members of the Executive Board ] appeared at our office at a quarter
of nine in the morning to await Frank 's arrival . We waited until the designated
time and he hadn ' t arrived . Well , we just stuck around and waited until about
ten minutes of ten, when Mr. Babish , the International Representative , interrupted
our conversation in our board room and told us he had a telephone call from Frank
Marfia stating he would be at least a half-hour late, in order to round up his wit-
nesses and his attorney . I turned to the board and remarked that he could have
more time if lie wants it. He says all he wants is a half -hour. I said it is granted.
We waited until 11 o 'clock and when he hadn ' t made an appearance then , we felt
sure he wasn ' t going to make an appearance , so we proceeded to make up our letters.
Then we went and had some dinner and went to the Plant . In the meantime, when
we had our dinner, I was walking on the opposite side of the street from the office
when the Union Representative , Mr. Babish , hollered out the window and asked
if I had seen Frank, and I said no. He said, "He was just in here a minute or
two after you left." I told him that was impossible , because we would have run
into him. He said he was in there . Well , upon those words, we felt we were
justified in taking whatever action we could.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1011
withstanding the foregoing information , Kalabokes and the other members of
the Executive Board, some six or seven in number , called upon David M . Woods,
the respondent's employment manager, at 1: 25 p. m., and presented him a letter
signed by the entire membership of the Executive Board reading as follows :
This is to notify you that Frank Marfia, check number 1385, has been
suspended by the Executive Board of Local Union B-1073, I. B. E. W.
At the time the letter was given to Woods there was some conversation con-
cerning Marfia, and an explanation by Kalabokes that Marfia had been sum-
moned to appear before the Executive Board and had ignored the summons,
and as a result of so doing the Board had suspended him, and that they desired
to have his employment suspended until such time as the matter could be
"cleared up." Woods made no further inquiry but telephoned Works Manager
Robert W. Biggs, who was then in Pittsburgh, and advised him of the receipt
of the letter. Biggs instructed Woods to take no action until he could make some
investigation after which he would telephone Woods. Biggs thereupon tele-
phoned the plant and had Kalabokes brought to the telephone . He inquired
of Kalabokes the reason for the suspension and was given the same explanation
as had been given Woods.
Like Woods, Biggs made no inquiry as to the reason for Marfia having been
summoned before the Executive Board for a hearing. He testified that there
had been one similar occasion not long preceding the Marfia incident, which
was handled in the same way, and that previous to that there had been a num-
ber of other incidents, generally involving financial delinquencies, which were
also similarly handled, and which were "cleared up" in the matter of a few days,
and that against this background of experience he did not feel it necessary to
make further inquiry. After having talked to Kalabokes, Biggs telephoned
Woods and instructed him to have Marfia sent in to his office shortly before the
3 o'clock quitting time and then to suspend him from employment.
On May 8, the Union again distributed a leaflet beginning with the distribu-
tion to the day shift slightly before 7 o'clock. During the afternoon of that day,
Mugford was present in front of the plant. Shortly before the 3 o'clock quitting
time, Marfia was instructed to report to Woods' office. On the way to Woods'
office he went to the employee's entrance and told Mugford that he had been
summoned to the employment office and anticipated that he was about to be
discharged. He requested Mugford to stand by and be prepared to come in to
Woods' office if he should be called. Marfia then went in to Woods' office where
he was told by Woods that the Union had notified him of Marfia's suspension
from the Union, and had requested his employment be suspended. Marfia re-
quested permission to bring Mugford in as a witness, and also requested to have
the suspension given to him in writing. He then called Mugford into Woods'
Footnote 1--Continued
A few days after Martin ' s suspension by the respondent , the IBEW distributed a hand-
bill reading in part as follows :
Thursday, May 8, 1947 , at 8: 35 a. in., the Executive Board gave to Frank Marfia,
oral and written notice to appear before the Board at the Union Office at 9: 30 a. in
The Executive Board was in the office at 8: 45 a. in At 9: 50 a . in. (then being late
by twenty minutes ) Marfia called and asked a delay on one-half hour to enable him
to bring witnesses in his behalf He was told it would be alright. At 11 : 00 a in ,
Marfia had still not appeared so the Board proceeded with the hearing . Finding
Marfia guilty as charged, placed him suspended as of 11 : 30 a. in. at the ending of
the hearing . Two minutes after the Board members left the office, Frank Marfia and
parts of his family appeared at the office.
817319-49-vol 80-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. Mugford introduced himself as a field organizer for the Union and asked
for an explanation of Marfia's discharge. He told Woods that Marfia was one
of the leading backers in the Union's operations at the plant, and that he was
convinced that the action taken by the Executive Board was due solely to Marfia's
activities on behalf of the Union. He demanded that Marfia be reinstated,
and advised Woods that unless Marfia should be allowed to return to work
the next morning, that charges of unfair labor practices would be filed with
the Board because of Martin's discharge. Woods replied that he would be help-
less to do anything about it, that he had no authority to countermand the orders
which he had been given; and that the discharge was made on the request of the
IBEW arising from the provisions of the contract. Since that time Marfia had
been refused employment by the respondent and has been an active field man
for the Union having gone on their pay roll on May 12, 1947.
Upon leaving the plant, Marfia went to Newell and told him about what oc-
curred during his interview with Woods. Newell thereupon telephoned Alec
Robinson, the respondent's vice president, and informed him, to quote Newell's
undenied and credited testimony,
... of the discharge of Frank Marfia and proceeded to tell him that it
was an illegal discharge, that the UE had taken every precaution under the
rules established by the Board for the protection of members of a union
under a closed shop who participate or were working on behalf of another
union against discharge for dual unionism, and suggested to him that the
Company protect itself against any illegal action which the Board might
hold against it by refusing to discharge Frank Marfia.
On the night of May 8, following the end of the second shift at 11 o'clock, a
number of the Union members employed on the second shift assembled at the
Union headquarters in the store under Marfia's residence to discuss Marfia's
discharge and plan for protesting it. At this meeting it was agreed that they
would arrange to hold a protest meeting at 7: 30 the next morning at the Moose
Hall, and that a number of the men present would set up a picket line in front
of the entrance gate to the plant the next morning in protest of Martia's discharge,
and to urge the employees to attend the Moose Hall meeting. Placards were pre-
pared at this meeting and delivered to those who assembled to serve as pickets
at the front gate of the plant the next morning. These placards bore substan-
tially the same legends to the following effect : "MARFIA FIRED attend pro-
test meeting Moose Hall 7: 30 a. m." None of the placards bore the name of
the Union or otherwise identified the affiliation of the protestants.
The entrance gate to the plant is flush with the sidewalk which at that point is
about 10 feet wide. The gate normally used is one of three folding doors which
habitually stands open at a width of about 3 feet. The time clocks are stationed
inside this gate and all the employees use the gate in going to and leaving the
plant. The picket line, consisting of Marfia and six other men, formed in front
of the gate shortly before 7: 00 o'clock on the morning of May 9. They marched
with a circular motion in an oval stationed immediately in front of the gate and
extending from 6 or 7 feet in length and about 3 feet wide. In this formation the
men were approximately 3 feet apart, some carrying signs and others not doing
so. The inside line of the oval maintained by the picketers was consistently from
21/2 to 31/2 or 4 feet from the gate. Aside from one incident when Marfia and
Kalabokes engaged in a short scuffle which was promptly broken up by the by-
standers, and another incident of a provocative remark made by one of the pick-
eters directed to the president of the IBEW, which went unnoticed by the latter,
there was no violence on the picket line or any threats of violence, nor is there
NATIONAL ELECTRIC PRODUCTS CORPORATION 1 013
any showing that there was disorder or threatened disorder of any character.
While the picket line, as placed, made it necessary for those who desired to enter
the plant to go around and in back of the picket line in order to get to the gate
or to go through the picket line, which, according to the testimony, was done by
many of the employees without molestation, there is no evidence in the record of
unlawful conduct on the part of picketers nor of any conduct which barred any
person from entering the plant who desired to do so, or threatened anyone with
physical or other violence if they should enter the plant. There were some pc,-
licemeri standing by but no evidence that at any time were they called upon to
do more than to stand by. A very large number of employees estimated at from
300 to 500 gathered in front of the plant when they saw the picket line. FTta.
protest meeting at Moose Hall appears to have been well attended to the extent
of taxing the capacity of the hall but regardless of this approximately 900 out of
the 1200 dayshift employees did report for work either at 7: 00 o'clock or later m
the day, while some 300 failed entirely to report.
Marfia left the picket line a little before 7: 30 and went to the Moose Hall.
The remaining six picketers stayed on the picket line until about 9: 30 when they
too departed. Those of the picketers who worked on the second shift reported
to work on the afternoon of May 9 and worked their regular shift that day. The
following day when they reported they were sent into Woods' office and were told
that because of their interruption to production the previous day they were being
disciplined by being laid off for 1 week. Those who were on other shifts were sim-
ilarly laid off when they reported to work, on either May 10 or subsequently.' As
a result of this lay-off which was made under instructions from Biggs, Philip T.
Swarlis, Emil Urban, Paul Russian, John H. Kowalyk, Kasimir J. Barkovich
were held on the suspended list for the week beginning May 12, 1947. On May
19, 1947, all returned to work and have continued their employment un-
interruptedly.`
B. The concluding findings
The record contains no evidence or suggestion of opposition by the respondent
to collective bargaining with its employees through the medium of a chosen
representative. The issues therefore confine themselves to the question of
whether the doctrine enunciated in the Rutland Court 6 and Wallace Corporation'
cases and the subsequent cases based thereon applies to the discharge of Marfia,
and whether the conduct of the picket line in front of the plant on May 9, was
legitimate concerted activity that is protected, within the meaning of the Act.
There is no question but that when Marfia showed the letter of charges which
had been served on him on the morning of May 8 to his foreman, Joseph Yeba)a,
and to his superintendent, Leo Smith, those persons well knew that Marfia was
being summoned to appear before the Executive Board of the IBEW for engag-
ing in dual unionism.' This notice to Yebak and Smith was notice to the
respondent. Moreover, at the time Woods was informing Marfia of his dis-
charge, Mugford advised Woods that Marfia was the leader of the Union s
organizational drive and that Manila was suspended by the IBEW solely for
that reason and later that day Vice-President Robinson was informed by Newell
B Paul Russian did not report for work, following the picket incident, until Wednesda,,
May 14, at which time he was suspended for the rest of the week and until the beginnsnt•
of work on Monday, May 19.
8 Matter of Rutland Court Owners, Inc., 44 N . L. R. B. 487, 46 N. L . it. B. 1040.
4 Wallace Corporation v. N. L. R. B., 323 U. S. 248.
G The letter stated that Marfia was charged with "Working in the Interest of al y
organization or cause which is detrimental to or opposed to the IBEW."
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the real reason for Marfia's suspension from membership by IBEW. Nonethe-
less, although requested, Robinson and Woods refused to reinstate Marfia nor,
for aught this record shows, made any investigation as to the truth of Mugford's
or Newell's statement.
The express purpose of the Act is to insure employees the right of self-organiza-
tion and free choice of representatives. The positions taken by the respondent
and the IBEW seem to indicate that the proviso to Section 8 (3) of the Act, which
deals with closed shop contracts 6 provides a blanket justification for discharges
of employees who, to the knowledge of the employer, are expelled from the union
and discharged from their employment for no other reason than that they exer-
cised their statutory right to select another representative for a period following
the term of the union-shop contract. To give such a strict and literal interpreta-
tion to the proviso is to overlook the basic and fundamental policy of the Act,
which is to guarantee to employees at an appropriate time the right of free choice
of their representatives.
In the Rutland Court case, the Board laid down the rule, which it has con-
sistently followed, that "the employees' right to select representatives to be
meaningful must necessarily include the right at some appropriate time to change
representatives." Thus, by so holding, the Board gives full force and effect to the
contract for its entire term and in all its provisions except only as the contract
is used to defeat the employees' right of free choice to select a new representative
for the following periods as the life of the contract draws to its close.?
In* the Wallace Corporation case 8 the Supreme Court referred as follows to
that company's reliance on the blanket defense interpretation of the closed-shop
provision :
... But the proviso in § 8 (3) permits union shop agreements. It fol-
lows therefore, the company argues, that, inasmuch as such agreements
contemplate discharge of those who are not members of the contracting
union, and inasmuch as the company has no control over admission to union
membership, the contract is valid and the company must discharge non-
union members, regardless of the union's discriminatory purpose, and the
company's knowledge of such purpose.
. . . No employee can be deprived of his employment because of his prior
affiliation with any particular union. The Labor Relations Act was de-
signed to wipe out such discrimination in industrial relations Numerous
decisions of this Court dealing with the Act have established beyond doubt
'fi Section 8 ( 3) of the Act provides that it shall be an unfair labor practice for an
employer :
By discrimination in regard to hire or tenure of employment or any term or con-
dition of employment to encourage or discourage membership in any labor organiza-
tion : PROVIDED , That nothing in this Act, or in the National Industrial Recovery
Act (U. S. C., Supp. VII, title 15, secs. 701-712), as amended from time to time, or
in any code or agreement approved or prescribed thereunder , or in any other statute
of the United States , shall preclude an employer from making an agreement with a
tabor organization ( not established , maintained, or assisted by any action defined
in this Act as an unfair labor practice) to require , as a condition of employment, mem-
bership therein , if such labor organization is the representative of the employees as
provided in section 9 (a), in the appropriate collective bargaining unit covered by
such agreement when made.
Cf. Republic Aviation Corp. v. N. L. R B., 324 U. S. 793. See also N. L R. B. v. Illinois
Tool Works, 153 F. (2d) 811 (C. C. A. 7).
8 Wallace Corporation v N L. R. B., supra.
NATIONAL ELECTRIC PRODUCTS CORPORATION 10] 5
that workers shall not be discriminatorily discharged because of their at
filiation with a union. We do not construe the provision authorizing a closed
shop contract as indicating an intention on the part of Congress to authorize,
a majority of workers and a company, as in the instant case, to penalize
minority groups of workers by depriving them of that full freedom of as-
sociation and self-organization which it was the prime purpose of the Act
to protect for all workers.. .
In a recent decision involving facts to some extent similar to those involved in
the instant proceeding, the Ninth Circuit Court of Appeals in Local No. 2880,
Lumber & Sawmill Workers Union v. N. L. R. B.,° (158 F. (2d) 365) said
The Board's construction of the proviso of Subsection 8 (3) with relation
to Section 7 conferring on Wilmarth and all employees the right "to bargain
collectively through representatives of their own choosing," as not war-
ranting a discharge for activities at an election for such choice is so obvi-
ously rational that we well could be required to accept it under the rule
that upon "questions of law the experienced judgment of the Board is
entitled to great weight." Medo Corporation v. National Labor Relations
Board, 321 U.S. 678, 681.
However, we are of the opinion that it is the only interpretation to be
given the proviso of Subsection 8 (3) for closed-shop contracts. Such
contracts are generally drawn, as here, in the anticipation that dilring
their currency there will be elections at which the employees will be given
their opportunty to choose the bargaining agent through whom, as provided
in Section 7, they will "bargain collectively" with their employees. If they
are to exercise this right under Section 7 in terrorem of discharge, because,
its exercise may displease the union successful At the election, that "labot
organization" would be "assisted by ... action defined in . . . [Subsection
8 (1)] as an unfair labor practice" in violation of the express language
of the proviso.
We construe the discharge provision of the instant closed shop contract
as not intended to include an obligation on the employer to dischargefan
employee for the exercise of the latter's right to seek at an election for his
bargaining agent a labor organization other than the one having an ex-
istent closed shop contract. If the union is so organized that exercising
such right at the election prevents an employee, otherwise complying with
the union's membership requirements, from remAining in the membership-
that is if the union is organized so to compel the closed shop employer to
commit an unfair labor practice-Such a union is ineligible to become a
party to a closed shop contract under the provisions of Subsection 8 (3).
It is clear that Marfia's activities were carried on in a proper manner,,at a
time when the respondent's contract with the IBEW was, by its terms, coining
to a close and when a large percentage of the employees were campaigning to
change their collective bargaining representative. If be could not advocate
a change in unions at this time, he could ' never do so., the respondent was in
possession of information stemming from the contracting union which, standing
by itself, demonstrated beyond question that Marfia was suspended by the IBEW
9See also Matter of American White Cross Laboratories, inc., 66 N . L. R B 1866;
Matter of Southwestern Portland Cement Co., 65 N. L. It. B: 1 ; Matter of Diamond T
Motor Car Co., 64 N. L. R. B. 1225; Matter of Monsieur Henri Wines Ltd., 44 N L It. B.
1310.
t016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of his organizational activities in behalf of the Union . Having such
notice, it was the respondent 's duty to refuse to comply with the request of the
IBEW for Marfia 's suspension or discharge and to give as its ground the infor-
mation it had received . The undersigned therefore finds that by separating
9ilarfia from his employment on May 8, 1947, and thereafter refusing to reinstate
him, the respondent in fact discharged Marfia on that date. By so doing the
respondent, the undersigned further finds , discriminated in regard to Marfia's
hire and tenure of employment thereby discouraging membership in the Union
and encouraging membership in the IBEW in violation of Section 8 (3) of the
Act. The undersigned also finds that the respondent 's conduct interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Assuming , arguen.do, that the respondent did not have knowledge of the reason
for Marfia 's suspension by the IBEW, the respondent 's defense that it was
obliged to discharge Marfia under the terms of the contract , at the request
of the IBEW , would still fail . The alleged union-shop provision of the contract
provides that the respondent :
agrees to employ only members of the [IBEW ] or those who have made
proper arrangements for becoming a member within twenty-one days after
being employed . The services of any employee who fails to make application
for membership in theIBEW] within twenty -one days after employ-
ment shall be automatically terminated . ( Emphasis supplied.)
The contract contains no provision that requires an employee who had joined
the IBEW to remain a member thereof, as a condition of employment. The
sole responsibility that the contract imposes upon the respondent is to either
hire members of the Union "or those who had made proper arrangements for
becoming a member within twenty-one days after being employed ." The con-
tract is likewise silent as to the obligations of those who , after being employed
for 21 days, make "proper arrangements for becoming a member," except that
after the specified time they must apply for membership in the IBEW. It
imposes no other obligation with respect to the employees ' tenure of employment.
At best , the contract is no more than a preferential hiring contract.
In discussing a clause in a contract in some respects similar to the one herein
involved, the Board in Matter of The Iron Fireman Manufacturing Company,
t69 N. L. R. B. 19 ) stated :
It is clear that the clause requires an employee found satisfactory at the
expiration of his 30-day trial period to make application to join the Union ;
but there is nothing that states he must become a member of the Union,
either at that time or at any other time. Under ordinary rules of construc-
tion , the act of making application to join the Union at the end of his 30-day
trial period fulfills an employee's obligation under the clause , and it is
immaterial whether or not his application is favorably acted upon and
he is accepted into membership in the Union . Moreover , the clause lays
down no requirement that an employee must remain a member of the
Union during the life of the contract , or for any length of time. Accord-
ingly, there is a fatal omission from the clause of the two essential require-
ments for a closed shop : ( 1) that an employee must become a member of
the contracting union ; and (2 ) must retain such membership during the
life of the contract , as conditions of employment . In view of the stringent
requirements of a closed -shop provisions , it is not too much to require that
NATIONAL ELECTRIC PRODUCTS CORPORATION 1017
the parties thereto express the essentials of such provisions in unmistakable
language 30
Marfia was discharged at the instance of the IBEW because he engaged in
dual unionism, in that he joined the Union and spearheaded the organizational
campaign of that organization. That was his right under the circumstances
of this case. Under the contract he was not obliged to continue to remain a
member of the IBEW, as a condition of continuous employment with the
respondent. He had a right, under the contract, to abandon the IBEW. It
is therefore found that no contractual relationship required the respondent to
discharge Marfia. The discharge was brought about through the IBEW and
was discriminatory and designed to support and encourage membership in the
IBEW and to discourage membership in any rival labor organization, and
therefore interfered with, restrained, and coerced the respondent's employees in
the exercise of the rights guaranteed in Section 7 of the Act and the undersigned
so finds.
With respect to Philip T. Swarlis, Emil Urban, Paul Russian, John A. I(o-
walyk, and Kasimir J. Barkovich, the respondent conceded that it disciplined
these employees because of their activities in the formation of the picket line
at the employees' entrance of the plant on May 9, 1947, thereby preventing or
inducing some 300 employees to remain away from work that day. The re-
spondent argues that those employees who remained away from the plant that
day because of the existence of the picket line struck, and therefore it was
justified in disciplining the aforesaid 5 employees, the leaders of the strike,
because their conduct was not protected by Section 7 of the Act since their
action was not authorized by the IBEW, the contracting union , but, in fact,
was in direct contravention of the desires of the officers of the IBEW.
Section 2 (2) of the Act defines a labor dispute as including, inter alia,
"any controversy concerning terms, tenure or conditions of employment." It is
manifest that the strike, if it be called that, which occurred at the respondent's
plant on May 9, constituted a controversy within the meaning of the Act. It
is no longer open to dispute that an employer who discriminates against his
employees because of their participation in a legal strike violates the Act. The
strike was in protest of the respondent's discriminatory action with respect to
Marfia and for no other reason and was lawful concerted activity. The strik-
ing employees, including the aforesaid 5 employees who were among the pick-
eters, did not engage in any illegal conduct nor did they resort to force or other-
wise do any illegal act to prevent non-striking employees from working. They
sought to achieve their ends solely by the withholding of their labor, as in
any strike. Moreover, the strike, although not authorized or sanctioned by
the IBEW, was not in violation or in contravention of any contract which
the respondent had with the IBEW. In the instant proceeding, the strikers
did not attempt to usurp the collective bargaining prerogatives of their duly
designated collective bargaining representative thereby disrupting the funda-
mental bargaining process which the Act seeks to protect, but the strikers
sought, on the other hand, to induce the respondent to rectify an illegal wrong
which it had committed by discharging Marfia.
10 See also Matter of G. W. Hume Co., 71 N. L. it. B . 533; Matter of Capolino Packing
Corporation , 71 N. L. it. B. 1003; Matter of Pittsburgh Plate Glass Company, 67
N. L. it. B. 97 ; N. L. R. B . v. Electric Vacuum Cleaner Company , Inc., 315 U. S.
685; N. L. R. B. v. Isthmian Steamship Company, 126 F. ( 2d) 598 ( C. C. A. 2 ) ; N. L. R. B.
v. Mason Manufacturing Company, 126 F. ( 2d) 810 (C. C. A. 9).
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the circumstances of this case, the undersigned finds that the forma-
tion of the picket line by the aforesaid five employees constituted such a con-
certed activity as is protected by the Act from employer interference, restraint,
and coercion." It follows that to single out Swarlis, Urban, Russian, Kowalyk,
and Barkovich and to discipline each of them by laying them off for a period of
time because the respondent considered them the leaders and instigators of this
legitimate concerted activity, constituted discrimination against each of them
in violation of the Act and the undersigned so finds.'1 The undersigned further
finds by thus discriminating against Swarlis, Urban, Russian, Kowalyk, and
Barkovich the respondent has discouraged membership in the Union and inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I,
above, have a clcse, intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead and have led to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take the
following affirmative action which it is found will effectuate the policies of the
Act.
Since it has been found that the respondent discriminated in regard to the
hire and tenure of employment of Frank Marfia, by discharging him and there-
after refusing to reinstate him, the undersigned will recommend that the
respondent offer him immediate and full reinstatement to his former or sub-
stantially equivalent position," without prejudice to his seniority and other rights
and privileges. The undersigned will further recommend that the respondent
make whole Frank Marfia for any loss of pay he may have suffered by respond-
ent's discrimination against him, by payment to him of a sum of money equal
to the amount which he would normally have earned as wages from May 8,
1947, to the date of the offer of reinstatement, less his net earnings " during
such period.
Since it has been found that the respondent discriminated in regard to the
hire and tenure of employment of Philip T. Swarlis, Emil Urban, Paul Russian,
John A. Kowalyk, and Kasimir J. Barkovich, by suspending them for a period
11 See N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333; Carter Carburetor
Corp. v. N. L. R. B., 140 F. (2d) 714 (C. C. A. 8) ; F1rth Carpet Co. v. N. L. R. B., 129
F. (2d) 633 (C C. A 2).
1"N. L. R. B v. Kalamazoo Stationery Company, 160 F. ( 2d) 465 (C C A. 6) ;
N. L. R B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F. (2d) 503 (C. C. A. 2).
13 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N L. R. B. 827.
14 Matter of Crossett Lumber Co., 8 N. L. R. B. 440 , 497-498.
NATIONAL ELECTRIC PRODUCTS CORPORATION 1019
of time, the undersigned will recommend that the respondent make them whole
for any loss of pay they may have suffered by reason of the respondent's dis-
crimination against them, and each of them, by payment to each of them
of a sum of money equal to the amount he normally would have earned as
wages during the period of discrimination as hereinbefore found, less his net
earnings during such period.
Because of the circumstances leading to the discharge and suspensions, as indi-
cated in the facts found, and because of the absence of any evidence that danger
of other unfair labor practices is to be anticipated from the respondent's con-
duct in the past, the undersigned will not recommend that the respondent cease
and desist from the commission of any other unfair labor practices. Neverthe-
less, in order to effectuate the policies of the Act, the undersigned will recom-
mend that the respondent cease and desist from the unfair labor practices
found "
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and International Brotherhood of Elec-
trical Workers, affiliated with the American Federation of Labor, are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Frank
Marfia, Philip T. Swarlis, Emil Urban, Paul Russian, John A. Kowalyk, and
Kasimir J. Barkovich, thereby discouraging membership in a labor organiza-
tion and encouraging membership in a rival organization, the respondent has
engaged in and is 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, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8
(1) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, National Electric Products Corpo-
ration, Ambridge, Pennsylvania, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership In United Electrical, Radio & Machine Workers
of America, affiliated with the Congress of Industrial Organizations, or en-
couraging membership in International Brotherhood of Electrical Workers,
affiliated with the American Federation of Labor, or any other labor or-
ganization of its employees, by discharging, laying off, or refusing to reinstate
any of its employees, or in any other manner discriminating in regard to their
tenure of employment or any term or condition of employment for engaging
11 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426 ; Matter of American
Car and Foundry Company, 66 N. L. R. B. 1031.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in activities directed to the designation of a new bargaining representative to
succeed an existing bargaining representative at the end of the latter 's contract
term ;
(b) Any other acts in any manner interfering with the efforts of its em-
ployees to designate a new bargaining representative to succeed an existing
bargaining representative upon the termination of the latter's contract.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Frank Marfia immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and
other rights and privileges;
(b) Make whole Frank Marfia, Philip T. Swarlis, Emil Urban, Paul Russian,
John A. Kowalyk and Kasimir J. Barkovich, for any loss of pay they may have
suffered by reason of the respondent 's discrimination against them in the manner
set forth in "The remedy" ;
(c) Post immediately at its plant in Ambridge, Pennsylvania, copies of the
notice attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Sixth Region, shall, after being duly
signed by the respondent's representative, be posted by the respondent im-
mediately upon the receipt thereof and maintained by it for sixty (60) con-
secutive days in conspicuous places, including all places where notices to
employees customarily are posted. Reasonable steps shall be taken by the
respondent to see that the notices are not altered, defaced, or covered by other
material ;
(d) Notify the Regional Director for the Sixth Region in writing within ten
(10) days from the date of receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that unless on or before ten ( 10) days from the
receipt of this Intermediate Report, the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board , Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen ( 15) days from the date of service
of the order transferring the case to the Board , pursuant to Section 203.38 of
said Rules and Regulations , file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four 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 four copies of a brief in support
thereof ; and any party or counsel for the Board may, Within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs,
the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
Proof of service on other parties of all papers filed with the Board shall be
promptly made as required by Section 203.65. As further provided in said
Section 203 39, should any party desire permission to argue orally before the
NATIONAL ELECTRIC PRODUCTS CORPORATION 1021
Board, request therefor must be made in writing to the Board within ten (1Cl)
days from the date of service of the order transferring the case to the Boaru.
HOWARD MYERS,
Trial Examiner.
Dated August 21, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in UNITED ELECTRICAL, RADIO & MA-
CHINE WORKERS OF AMERICA, affiliated with the CONGRESS OF INDUSTRIAL
ORGANIZATIONS, or encourage membership in International Brotherhood of
Electrical Workers, affiliated with the American Federation of Labor, or
any other labor organization of our employees, by discharging, laying off, or
refusing to reinstate any of our employees, or in any other manner dis-
criminating in regard to their tenure of employment or any term or condi-
tion of employment for engaging in activities directed to the designation of
a new bargaining representative to succeed an existing bargaining represent-
ative at the end of the latter's contract term.
WE WILL NOT by any other acts in any manner interfere with the efforts
of our employees to designate a new bargaining representative to succeed an
existing bargaining representative at the termination of the latter's contract
term.
WE WILL OFFER Frank Marfia reinstatement to his former or substantially
equivalent position without prejudice to any seniority or other rights and
privileges previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination.
WE WILL MAKE Philip T. Swarlis, Emil Urban, Paul Russian, John A.
Kowalyk and Kasimir J. Barkovich whole for any loss of pay suffered by
each of them as a result of the discrimination.
All our employees are free to become or remain members of the above-named
unions or any other labor organization.
NATIONAL ELECTRIC PRODUCTS CORPORATION,
Employer.
Dated-------------------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.