Union Die Casting Co. Ltd.

National Labor Relations Board - Board Decisions

Jun 11, 1938

7 N.L.R.B. 846 (N.L.R.B. 1938)

846 NATIONAL LABOR RELATIONS BOARD
III the Matter of UNION DIE CASTING COMPANY LTD.i A CORPORATION;
UDICO COLLECTIVE BARGAINING UNION and INTERNATIONAL UNION
UNITED AUTOMOBILE WORKERS OF AMERICA , LOCAL No. 188
Case No. C-360.Decided June 11, 1938
Die Casting Manufacturing Industry-Interference, Restraint, and Coercion:
engendering fear of loss of employment for union activity ; posting of antiunion
notice-Company-Dominated Union: domination of and interference with forma-
tion and administration ; support ; activities of supervisory employees ; disestab-
lished, as agency for collective bargaining-Discrimination?,: discharges, for
union membership and activityReinstatement Ordered: discharged employees
who desire reinstatement--Back Pay: awarded.
Mr. David Sokol, for the Board.
Mr. Richard A. Terrell, of Los Angeles, Calif., for the respondent.
Mr. William M. Burke, of Los Angeles, Calif., for the United.
Mr. William Charles Wade and Mr. H. A. Richart, of Los Angeles,
Calif., for Udico Collective Bargaining Union.
Mr. Sumner Marcus, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Union United Auto-
mobile Workers of America, Local No. 188, herein called the United,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia) issued its complaint dated October 13, 1937, against Union
Die Casting Company Ltd., a corporation, Los Angeles, California,
herein called the respondent. The complaint and notice of hearing
thereon were duly served upon the respondent and the United. The
complaint alleged that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
Thereafter, the respondent filed an answer denying substantially all
the allegations of the complaint and setting forth a number of affirm-
ative defenses.
DECISIONS AND ORDERS 847
On October 18, 1937, an amended notice deferring the hearing to
a later date was duly served upon the respondent and the United.
Pursuant to the amended notice of hearing, a hearing was held on
November 5 and 6, 1937, at Los Angeles, California, before George
W. Rochester, the Trial Examiner duly designated by the Board.
During the course of the hearing, a motion to intervene was made
on behalf of Udico Collective Bargaining Union, herein called Udico,
an organization claiming to represent the respondent's employees.
This motion was granted with the consent of all parties. At the
same time, pursuant to a stipulation made.by all the parties, the
complaint was amended to include allegations that the respondent
had engaged in and was engaging in -unfair labor practices affect-
ing commerce within the meaning of Section 8 (2) and Section 2 (6)
and (7) of the Act. The requirements of notice were waived by
all parties. Udico also waived any right it might have had to cross-.
examine the witnesses who had been examined prior to its interven-
tion in the proceeding.
The Board and the respondent were represented by counsel, and
the United and Udico were represented by officers of their respective
organizations. All parties participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
At the close of the Board's case, the respondent moved to dismiss
the complaint for lack of jurisdiction on the ground that the re-
spondent's interstate business was not large enough to burden or ob-
struct interstate commerce. The Trial Examiner denied this motion.
His ruling is hereby affirmed. During the course of the hearing the
Trial Examiner made several other rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On December 27, 1937, the Trial Examiner filed an Intermediate
Report, copies of which were served upon all parties, finding that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2) and (3) and Section 2 (6) and (7) of the Act. He recommended
in substance that the respondent cease and desist from its unfair
labor practices and, affirmatively, disestablish Udico as a represent-
ative of the respondent's employees for the purposes of collective
bargaining, offer full reinstatement with back pay to three of the
persons named in the complaint, and to give to the two remaining
persons named in the complaint back pay for a period from the
dates of their respective discharges to the dates on which they
respectively obtained employment elsewhere.
848 NATIONAL LABOR RELATIONS BOARD
On January 12, 1938, the United filed with the Regional Director
for the Twenty-first Region a supplemental charge alleging that the
respondent had posted in its plant a certain notice addressed to its
employees, thereby committing an unfair labor practice affecting
commerce within the meaning of Section 8 (1) and Section 2 (6)
and (7) of the Act. The notice attacked the Trial Examiner's
Intermediate Report as unfair and prejudiced and, in addition, con-
tained antiunion statements. Upon a motion made by counsel for
the Board to reopen the proceeding, the Regional Director for the
Twenty-first Region issued an order granting this motion. On Jan-
uary 13, 1938, copies of the motion and order were duly served upon
the • respondent, the United, and Udico.
On January 14, 1938, the Board, by the Regional Director for the
Twenty-first Region, issued and duly served upon the respondent,
the United, and Udico its supplemental complaint and notice of
hearing thereon. On January 19, 1938, the respondent filed an an-
swer admitting the posting of the notice, a copy of which was
annexed to the supplemental complaint, and denying the other alle-
gations of the supplemental complaint.
Pursuant to the notice of hearing, a hearing was held on January
21, 1938, before George W. Rochester, the Trial Examiner previ-
ously designated by the Board. The Board, the respondent, and the
United were represented at the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to produce evi-
dence bearing on the issues was afforded all parties.
At the commencement of the hearing, the respondent moved that
the hearing be held before another Trial Examiner on the ground
that the Trial Examiner was prejudiced and biased. The Trial
Examiner denied the motion. The Trial Examiner was correct in
not disqualifying himself in the absence of any proof substantiating
the respondent's contention of bias and prejudice. His ruling is
hereby affirmed. The respondent also objected to the introduction
of evidence on the ground that the Act did not provide for a supple-
mental complaint and on the additional ground that the supple-
mental complaint did not state facts sufficient to constitute an unfair
labor practice affecting commerce within the meaning of the Act,
as required by Article II, Section 4 (c), of National Labor Relations
Board Rules and Regulations-Series 1, as amended. The Trial
Examiner overruled this objection. The ruling is hereby affirmed.
Counsel for the Board moved to introduce into evidence various
formal papers. The respondent opposed this motion on two grounds,
namely, that good cause for reopening the proceeding had not been
shown and that the proceeding had not been reopened within a
reasonable time. The Trial Examiner overruled the respondent's ob-
DECISIONS AND ORDERS 849
jections and granted the motion of the attorney for the Board. The
ruling is hereby affirmed.
At the close of the Board's case, the respondent moved to dismiss
the proceeding on the supplemental complaint on the ground that the
evidence was insufficient to sustain the allegations of the supple-
mental complaint. The Trial Examiner reserved decision on this
motion. The motion is hereby denied.
During the course of the hearing on the supplemental complaint,
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence. The Board has reviewed these rulings
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On January 21, 1938, the respondent filed exceptions with the
Board to the Trial Examiner's Intermediate Report on the hearing
of the original complaint. The Board has considered these excep-
tions and finds them to be without merit. The respondent annexed
to its exceptions to the Intermediate Report a separate motion to dis-
miss the original complaint for lack of jurisdiction. This motion is
hereby denied.
On April 26, 1938, the Board issued an order directing the Trial
Examiner not to prepare an Intermediate Report on the hearing of
the supplemental complaint. Copies of this order were duly served
upon the respondent, the United, and Udico.
On May 4, 1938, the respondent, the United, and Udico were
notified that they had a right to apply within 10 days for oral argu-
ment or for permission to file briefs, but none of the parties so
applied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a corporation organized under the laws of Cali-
fornia in 1929, maintains its sole place of business at Los Angeles,
California. It describes itself in its letterhead as "The Largest Ex-
clusive Manufacturers of Die Castings in the West." It is engaged
chiefly in the manufacture of parts for manufacturers of plumbing
supplies, venetian blinds, stove hardware, gas appliances, and kindred
commodities. The principal raw material • used by the respondent
in its manufacturing is "Zemak," a zinc alloy which the respondent
purchases from two concerns in Los Angeles, California. The re-
spondent also purchases for use in its manufacture certain screw
machine products, washers, and small parts, which are shipped to it
from Chicago, Illinois. The respondent also uses boxes which are
850 NATIONAL LABOR RELATIONS BOARD
shipped to it from St. Louis, Missouri ,- and gloves for casters, which
are shipped to it from Dayton, Ohio.
During the period from January 1, 1936, to October 15, 1937, the
respondent's sales and shipments of its manufactured goods totaled
$432,148 . 95. Approximately 28.25 per cent of its shipments during
this period were made to companies in New York , Pennsylvania;
New Jersey, Ohio, Illinois, Washington, and Massachusetts. The
remainder of its shipments were made to concerns situated in Cali-
fornia. During the period from January 1, 1937, to June 30, 1937,
approximately 38.32 per cent of its shipments were made to pur-
chasers outside the State of California.
H. THE ORGANIZATIONS INVOLVED
International Union United Automobile Workers of America,
Local No. 188, is a labor organization affiliated with the Committee
for Industrial Organization, admitting to its membership the em-
ployees of the respondent.
Udico Collective Bargaining Union is a labor' organization unaf-
filiated with any other labor organization. Its membership is lim-
ited exclusively to the respondent 's employees.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and admin-
istration of Udico
From about June 9, 1937, until the time of the hearing on Novem-
ber 5 and 6, 1937, the respondent recognized an organization, known
as Udico Collective Bargaining Union, as the exclusive collective
bargaining agency of its employees. Udico's chairman is Eugene
Fancher, the chief assistant of Henry Bishop, the respondent's gen-
eral superintendent. Included within Udico's present membership
is Fred Bishop, a brother and an assistant of Henry Bishop. While
we are at the outset thus confronted with virtually conclusive evi-
dence of the respondent's domination of Udico at the time of the
hearing, an examination of the evidence relating to the formation
of Udico reveals that Udico has been a creature of the respondent
from its inception:
The first steps in the formation of Udico occurred late in April
and early in May 1937 with the circulation among the respondent's
employees of several petitions for the formation of an organization
with no outside affiliations. The petitions were circulated principally
by Fancher and William Wade. At this time Fancher had not yet
been promoted to his position as chief assistant to the respondent's
general superintendent. Wade is a youthful employee of the re-
DECISIONS AND ORDERS 851
spondent . His uncle is a major stockholder in the respondent; and
his father is also a stockholder and a former director of the respond-
ent. The preamble of the first petition was typewritten on company
stationery bearing the respondent 's letterhead . The stationery was
secured by Wade. The subsequent petitions did not bear the re-
spondent 's letterhead because, Wade testified , he realized that the
respondent 's letterhead might suggest assistance by the respondent
in the preparation of the petitions . It appears that the first and
subsequent petitions were circulated during as well as outside of
working hours.
The circulation of the first petition was approximately coinci-
dental with the United's first major organizational drive by which
the United secured the membership of 40 of the 63 eligible employees
in the respondent 's plant. Wade testified that thereafter the tempo
of Udico's organizational efforts was attuned to the activity of the
United, in that whenever the United became active , Wade and his
associates circulated a petition to counteract the United 's activity.
While there is some conflict in the testimony respecting the precise
dates on which the various petitions were presented to the respond-
ent by Udico , it is quite certain that they were presented to Bishop,
the general superintendent , shortly after their first circulation. The
effect of these petitions in apprising the respondent of the member-
ship of the United, by the absence of their names from the petitions,
is obvious.
Sometime in May a meeting of the employees who had affixed
their signatures to the several petitions was held. Faucher was
elected chairman and the organization was named Udico Collective
Bargaining Union. This meeting appears to have been the only
official action taken by Udico up to the time of the hearing. As
disclosed by the record, Udico has served no purpose other than to
furnish the respondent at various times with lists of its membership
and to serve as the "recognized" union in the respondent 's plant.
It has never adopted a constitution or bylaws or any rules for its
conduct. It has never imposed or collected dues. It has no records.
The officers of Udico testifying at the hearing knew very little or
nothing of Udico's affairs. According to the testimony of the offi-
cers of Udico and the assertion of J. M. Davis , the respondent 's pres-
ident, the only person who had any knowledge of the administra-
tion, or the lack of administration , of Udico is Fancher, who has
been the chief assistant of the respondent 's general superintendent
since June 1937. Faucher was on his vacation at the time of the
hearing and did not testify.
It is clear from the evidence that the respondent has dominated
and interfered with Udico from its inception. The extent of its
852
NATIONAL LABOR RELATIONS BOARD
domination at the time of the hearing is revealed by the fact that
Fancher, the chief assistant to the respondent's general superin-
tendent, is the chairman of Udico and virtually the sole' repository
of information concerning Udico's affairs.
We find that the respondent has dominated and interfered with
the formation and administration of Udico and has contributed sup-
port to it, and thereby has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
B. The discharges
1. Events preceding the discharges on May 15, 1937
The United began to organize the respondent's employees in the
middle of April 1937 and, by April 23, 1937, had secured a mem-
bership of 40 of the 63 eligible employees of the respondent. Early
in May 1937 the United submitted a proposed agreement to the
respondent. Davis, the respondent's president, informed the United
by letter that the respondent would not, by itself, enter into negotia-
tions with .the United, but expressed a willingness to participate in
negotiations attended by all companies in the same industry.
At about the sane time that the United submitted its proposed
contract to the respondent, the members of the United began wearing
union buttons while at work, for which they were censured by Bishop.
Bishop testified that he learned which employees were members of
the United by their union buttons. _
On May 10, 1937, shortly after the submission of the proposed
contract and the commencement of the wearing of union buttons, the
respondent notified its employees in the production department, as
distinguished from the die-casting department, that on May 17, 1937,
the night shift, except for certain casting operations, would be dis-
continued and that a 50-hour week would be instituted in accordance
with the desire of a majority of the employees for a workweek of
not less than 45 hours. The following day, May 11, a ballot was
held among the 33 employees in the day shift of the production
department to determine whether they preferred a 40-hour week in
order to provide employment for more employees. Thirty employees
voted for the 40-hour week. On the same day Burke, Ohling, Alten,
and Anderson, who had previously been designated by the members
of the United to represent them in negotiations with the respondent,
informed Davis that the vote indicated that the employees preferred
a 40-hour week to a 50-hour week. In reply Davis stated that he
did not believe that the vote represented the opinion of the whole
shop and told them to return after they had balloted the night
DECISIONS AND ORDERS 853
shift. Although he had been informed that the request for a 40-hour
week was based solely upon a desire to spread the work, Davis de-
clared that any able-bodied man should be able to work 10 hours a
day. Davis' attitude is reflected by the following statements which
Ohling testified Davis made during the course of the conference :
"You men will have to take my orders as to hours; when you get
your own business, then you can give orders;" and "if you don't like
it, you can quit."
2. The discharges of May 15, 1937
On May 15, 1937, the respondent received from the United a copy
of a proposed agreement and a letter proposing a conference of all
shops in the industry to be held on May 24 at Los Angeles. On the
same day, 14 employees on the day shift were discharged or laid off.
Of these Burke, Godfrey, McNelly, Elder, and Gregory are alleged
in the complaint to have been discriminatorily discharged. McNelly,
Elder, and Gregory were informed that they were being temporarily
laid off because of a decline in production. In view of the testimony
of Bishop, who had exclusive power to hire and discharge, that under
no circumstances would he have taken back the five employees named
in the complaint, it follows that all five were permanently discharged
on May 15, 1937. Moreover, the above testimony of Bishop shows
conclusively that decline in production was not the reason for the
permanent discharge of McNelly, Elder, and Gregory.
Before turning to the discussion of the discharge of each of the
five persons named in the complaint, it is important to note that all
but one of the 14 employees discharged or laid off on May 15, 1937,
were members of the United and that none of them had signed the
petition circulated in behalf of Udico. It is significant that Ohling,
who was known by the respondent to have been, with Burke, the most
active of the respondent's employees in the organization of the United,
was not laid off. He had signed one of Udico's petitions on the pre-
ceding day.
3. William M. Burke
Burke had been in the respondent's employ for over a year prior
to his discharge on May 15, 1937. The respondent's officials knew
of his union activity and of the important part he played in bringing
the United to the respondent's' plant. As related above, he was a
member of the committee which conferred with Davis on May 11 to
protest the 50-hour week. About May 8, he had been warned by
Bishop that, he would be discharged if he discussed the United on
company time. This occurred after Bishop overheard Burke, in the
washroom, talking about the United to a fellow employee. Burke
854 NATIONAL LABOR RELATIONS BOARD
testified that Bishop was very angry and not'his normal self when
he delivered this ultimatum.
The respondent maintained that the reason for Burke's discharge
was that he failed to comply with the requests of foremen. Burke
denied Bishop's testimony that he "grumbled", but admitted that he
may have voiced occasional objections to a fellow employee in regard
to certain jobs assigned to him. He testified that he always per-
formed the work assigned to him.
The only reasonable inference from the evidence adduced at the
hearing is that the respondent disregarded Burke's alleged "grum-
bling," which the respondent asserts became manifest after February
1937. On April 15, 1937, Burke received an increase in wages, at
which time, according to Burke's testimony, Bishop told him, that
his work was satisfactory. Under these circumstances we conclude
that the respondent utilized Burke's occasional grumbling as a pre-
text to conceal the real reason for his discharge, which was his union
membership and activity.
We find that the respondent in discharging Burke discriminated in
regard to his tenure of employment, thereby discouraging member-
ship in the United and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
4. James Francis Godfrey
Godfrey had been employed in various capacities by the respondent
for approximately 7 years prior to his discharge. He was one of
the employees who wore a United button in Bishop's presence.
When Godfrey was discharged he was told that his work was
not up to par. Davis testified at the hearing that Godfrey was dis-
charged "largely for moral reasons and the good of the shop." The
"moral reasons"' were that he drank and as a result failed to report
to work at least once each month. Bishop also contended that God-
frey was extremely incompetent and that he had been retained dur-
ing the major part of his 7 years' service solely because the respond-
ent did not desire to discharge him during the depression when he
would have been unable to secure employment elsewhere.
The evidence adduced at the hearing fails to sustain the reasons
asserted by the respondent for Godfrey's discharge. Godfrey ad-
mitted that he had been absent from work on a number of occasions
and that his absence on some of these occasions was due to drink-
ing. He testified, however, that during the 3 months preceding his
discharge he had been absent from work only once. Bishop testified
that no particular incident was the cause of Godfrey's discharge,
but that since the plant was growing it was bad for the morale of the
DECISIONS AND ORDERS 855
employees to retain a man who could not hold the respect of his
fellow employees . In spite of this contention and also the conten-
tion that Godfrey was not discharged earlier because the respond-
ent did not wish to terminate his employment during the depression,
Godfrey's initial wage rate had been increased from 35 cents an
hour to 55 cents an hour at the time of his discharge . Moreover,
his last wage increase of 5 cents an hour occurred only 2 weeks prior
to his discharge. The steady increase in Godfrey's wages is hardly
consistent with the respondent's contentions as to his discharge. Un-
der all the circumstances surrounding the discharge of Godfrey and
the other members of the United , we conclude that the reasons as-
serted by the respondent for the discharge of Godfrey were culled
ex post facto as a screen for its real reason, which was his union
membership.
We find that the respondent in discharging Godfrey discriminated
in regard to his tenure of employment, thereby discouraging mem-
bership in the United and interfering with, restraining, and coerc-
ing its employees in the exercise of the rights guaranteed in Section
7 of the Act.
5. Bert Leonard Elder, Emmett F. McNelly, and Lawrence Stephen
Gregory
The respondent maintained that Elder, McNelly, and Gregory
were discharged because they were incompetent and because they
were temporary employees hired only for the period of peak pro-
duction.
Incompetency . The evidence fails to sustain the respondent's con-
tention that these three employees were incompetent, but on the con-
trary shows that they were not regarded as incompetent by the re-
spondent at the time of their discharge. Davis and Bishop testified
that Elder had been hired as an all-around employee and that he did
not possess the requisite skill for the performance of his duties. This
testimony is not consistent with the uncontradicted testimony of
Elder that he was the recipient of several wage increases during the
6 months' in' which he was in the respondent's employ.
Bishop testified that McNelly, also, had been employed to do all-
around work . According to Bishop , McNelly's incompetency lay in
his inability to operate the drill-press and the kick-press with suffi-
cient rapidity. The respondent offered no explanation , however, for
its grant to McNelly on April 16, 1937, of a wage increase which he
had requested ; nor did Bishop explain his praise of McNelly 's ability
to operate the kick-press and the drill -press in a letter of recom-
mendation written by Bishop on June 2, 1937.
106791-38-vol vii--55
856 NATIONAL LABOR RELATIONS BOARD
Davis and Bishop did not agree as to the basis for their dissatis-
faction with Gregory's work. Davis testified that Gregory, who had
been employed to do rough work preparatory to the hand finishing
and assembling of the products, regarded himself as superior to cer-
tain tasks assigned to him and made objections. Bishop testified
that Gregory did not turn out sufficient production. Neither Davis
nor Bishop made their criticisms to Gregory. About a week after
his discharge Bishop told Gregory that he would be reemployed as
soon as business warranted it.
Temporary employment. There is some conflict in the evidence
as to whether or not these three men were hired only temporarily
for the peak period of production. The testimony of Davis and
Bishop is supported to some extent by the fact that all three, men
were hired during the period from November 1936 to January 1937,
a period just preceding the usual commencement of the respondent's
peak period of production. On the other hand, McNelly and Gregory
denied the respondent's contention that they were informed that
they were being hired only for temporary employment. It appears,
moreover, that these men received one or more wage increases during
their period of employment. When they were discharged, they were
informed that they would be recalled when business improved. All
these circumstances indicate that these men were not treated as tem-
porary employees by the respondent. It is unnecessary, however, for
us to determine whether or not these men were in fact temporary
employees, since we are satisfied that the circumstances surrounding
their discharge, including the facts next set forth, reveal that this
was not the real reason for their discharge.
Particular incidents. All but one of the 14 persons discharged or
laid off on May 15, 1937, were members of the United. Prior to that
date Bishop, by his own admission, had learned which of the em-
ployees were members of the United by the union buttons which they
displayed. Elder, McNelly, and Gregory all wore union buttons
while at work. 'The evidence, although conflicting to some extent, in-
dicates that Elder continued to wear his button after having been
told by Bishop to throw it out of the window and to "keep his damn
mouth shut" about the United and that Bishop told Gregory that
if he wanted to keep his job he had better "take that damn- button
off." McNelly's discharge was accurately foreshadowed early in May
when, upon refusing to sign one of Udico's petitions, the circulator
of the petition declared, "This is the union the company is in favor
of, and your job would be more secure if you signed it." We find
that the respondent discharged Elder, McNelly, and Gregory because
of their membership in the Union.
DECISIONS AND ORDERS 857
We find that the respondent in discharging Elder, McNelly, and
Gregory discriminated in regard to their tenure of employment,
thereby discouraging membership'in the United and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. The notice
On December 29, 1937, the Los Angeles Daily News, a Los Angeles
newspaper, published an account of the contents of the Intermediate
Report of the Trial Examiner on the case heard under the original
complaint. On December 30, 1937, Davis attached this account to
the following notice which he placed on the bulletin board in the re-.
spondent's plant :
ALL EMPLOYEES
To those who are concerned over the news clipping appended
let it be distinctly understood that the Examiner, Mr. Rochester
referred to, is not vested with power to order anything.
This party simply forwards his villanous, partial, one-sided
and otherwise unfair report of his desires to N. L. R. B. together
with transcript of the hearing to Washington and we file an
answer bringing out the decent, impartial, two-sided and other-
wise fair side of the matter as borne out by said transcript. If
there is a spark of common sense and justice in N. L. R. B. which,
together with the abomination of abominations-The Wagner
Act-is dehydrating and paralyzing business and industry-
they will make recommendations and give the orders which will
be far different from this erroneous Daily News item.
Regardless of all the controversy and unpleasantness so unfor-
tunately dumped upon us by certain contemptible persons, we
know that right will prevail. By right we mean just this: When
our employees are laid off for lack of full personnel requirement
or discharged for inefficiency and unwillingness to perform as
instructed they will not be paid for services not rendered nor will
they be re-engaged on orders from any outsider. Our employees
may be members of any Union they choose or no Union, but this
will be an open shop.
My employers, and yours, have had cash dividends during the
past seven years equal to exactly what a Federal or National
Bank savings account would have paid them. I am sure you will
readily agree this is a very small return on investment and that
we should not be spending hundreds of dollars to satisfy rotten
politicians and grafting parasites. The stockholders back me in
858 NATIONAL LABOR RELATIONS BOARD
these determinations, and very plainly speaking, I hope by now
you all realize what a hell of a mess certain labor racketeers have
made of things and what a big ass our government has become to
tolerate such acts and actions as have been hampering business
and industry to the present climax of increased lay-off s and shut-
downs.
I just want you all straight on this entire matter and if any-
one ever wants to talk with me about anything, get facts and
truths as to our business or policies please come in. Outside
opinions and gossip on any subject are invariably false.
Finally ; if we are to be successful during the New Year we
must work out our own salvation, peddle our own papers and
saw wood like hell. So, until then, Cheerio.
Very truly yours,
UNION DIE CASTING COMPANY, LTD.,
(Signed) J. M. DAVIS, General Manager.
The clear intent of the above notice was to arouse the emotions
-of the employees against labor organizations and to warn them
against such organizations at a time when their efforts to organize
were being summarily interfered with by their employer. We find
That the respondent by posting the above notice interfered with,
restrained, and coerced its employees in the rights _guaranteed in
Section 7 of the Act.
IV. TIIE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
Since the respondent has been found to have dominated and inter-
fered with the formation and administration of Udico, and to have
contributed support to it, and since it has recognized Udico as the
sole bargaining agent for the respondent's employees, the respondent
will be ordered to withdraw all recognition from it as a representa-
tive of the respondent's employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
wages, and hours of employment, and to disestablish it as such
representative.
DECISIONS AND ORDERS 859
Since the respondent has been found to have discriminated in
regard to the hire and tenure of employment of five of its employees,
thereby discouraging membership in the United, the respondent will
be ordered to reinstate McNelly, Burke, and Godfrey to their former
positions and to pay to each of them an amount of money equal to
that which he would normally have earned from May 15, 1937, to the
date of the offer of reinstatement less any amounts he may have
earned during that period. Since Elder and Gregory do not desire
to be reinstated, we will not order the respondent to reinstate them,
but we will order it to pay to each of them an amount of money
equal to that which he would normally have earned from May 15,
1937, to the date of the commencement of the employment in which
he was engaged at the time of the hearing, less any amounts he may
have earned during that period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union United Automobile Workers of America,
Local No. 188, and Udico Collective Bargaining Union are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Udico Collective Bargaining Union, and by contributing
support thereto, the respondent has engaged in and is engaging in_
unf air labor practices, within the meaning of Section 8 (2) of then
Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Lawrence Stephen Gregory, Bert Leonard Elder, William
M. Burke, Emmett F. McNelly, and James Francis Godfrey, the
respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
860 NATIONAL LABOR RELATIONS BOARD
ent, Union Die Casting Company Ltd., a corporation, Los Angeles,
California, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Udico Bargaining Union, or dominating or interfering
with the formation or administration of any other labor organization
of its employees, or from contributing financial or other support to
Udico Collective Bargaining Union or any other labor organization
of its employees;
(b) Discouraging membership in International Union United
Automobile Workers of America, Local No. 188, or any other labor
organization of its employees, by discharging its employees or in any
manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment because of their mem-
bership in or activity in connection with any such labor organization;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
'form, join, or , assist labor ;organization,, to bargain cplleotively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Udico Collective Bargaining
Union as a representative of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment,
and completely disestablish Udico Collective Bargaining Union as
such representative;
(b) Offer to William M. Burke, James Francis Godfrey, and
Emmett F. McNelly immediate and full reinstatement to their for-
mer positions without prejudice-to their seniority or other rights and
privileges ;
(c) Make whole William M. Burke, Emmett F. McNelly, and
James Francis Godfrey for any loss of pay they have suffered by
reason of their respective discharges, by payment to each of them of
a sum equal to the amount each would normally have earned as
wages during the period from May 15, 1937, the date of the discharge,
to'the date of such offer of reinstatement, less any amounts he may
have earned during this period ;
(d) Make whole Lawrence Stephen Gregory and Bert Leonard
Elder for any loss of pay they have suffered by reason of their respec-
tive discharges, by payment to each of them of a sum equal to the
DECISIONS AND ORDERS 861
amount each would normally have earned as wages during the period
from May 15, 1937, the date of the discharge, to the date he com-
menced the employment in which he was engaged at the time of the
hearing, less any amounts that he may have earned during this
period ;
(e) Post immediately, and maintain for a period of at least thirty
(30) consecutive days, notices to its employees in conspicuous places
throughout its plant, stating that it will cease and desist as provided
in paragraph 1 (a), (b), and (c), and that it withdraws all recogni-
tion from Udico Collective Bargaining Union as a representative of
its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work, and tl at Udico Collective
Bargaining Union is disestablished as such representative;
(f) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this order what steps
the respondent has taken to comply herewith.