Brown-McLaren Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 26, 1941

34 N.L.R.B. 984 (N.L.R.B. 1941)

In the Matter of BROWN-MCLAREN MANUFACTURING COMPANY AND
HAMEURG MANUFACTURING COMPANY and BROWN-MCLAREN BRANCH
OF LOCAL 174, INTERNATIONAL UNION, UNITED AUTOMOBILE -WORK-
ERS OF AMERICA, A C. I. 0. AFFILIATE
Case No. C-1571:-Decided August 26 , 1941
Jurisdiction : tool manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion
Required execution by employees individually of so-called "Conditions
of Employment" limiting employees' right to strike and otherwise restrict-
ing lawful concerted activities held violative of Section 8 (1) of the Act.
Discrimination- charges of, dismissed.
Collective Bargaining: majority established by membership in union-employer
although not found to have refused to bargain collectively by transferring
its operations to avoid loss after negotiations with the union had reached
an impasse , held to have refused to bargain collectively concerning the trans-
fer to and employment at the removed plant of employees who would be or
were laid off incident to the removal since a new situation was created which
changed the status of the controversy-refusal to negotiate concerning the
transfer of employees not justified on grounds : plant is owned by a separate
corporation which is the alter ego or instrumentality of the corporate em-
ployer ; or because of oral "understanding" with residents of town which
contemplated a donation by townsfolk of plant site and a preferment where
possible, in employment at the plant of persons residing in and about said
town.
Remedial Orders: respondent ordered to cease and desist from requiring or en-
forcing so-called individual "Conditions of Employment" contracts with its
employees and to stop requiring them to relinquish their right to strike under
the agreements; respondent also ordered to send individual notices to em-
ployees who signed such contracts ; employees whose work ceased as a conse-
quence of removal of operations ordered placed upon a preferential list for
employment.
Practice and Procedure : respondent held not prejudiced by Trial Examiner's
denial of its application for issuance of a subpoena duces tecum calling for
production by the union of minutes of union meetings and other union records
and documents ; amendment of complaint shortly before close of hearing held
not to have prejudiced respondent.
Ultimate findings regarding acts and statements of employer preceding
execution of collective labor contract withheld where subsequent unfair labor
practices do not constitute a resumption or continuance of the practices
preceding the execution of the contract.
34 N. L. R. B., No. 113.
984
BROWN-McLAREN MANUFACTURING COMPANY 985
Mr. William J. Avrutis, for the Board.
Amstrong, Weadock, Essery cfi Helm, by Mr. Harold H. Armstrong
and Mr. L. J. Verdier, of Detroit, Mich., for the respondent and
Hamburg Manufacturing Company.
Mr. Maurice Sugar, by Mr. Jack N. Tucker, of Detroit, Mich.,
for the Union.
Mr. Robert F. Koretz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Brown-McLaren Branch of
West Side Local 174, International Union, United Automobile Work-
ers of America, herein called the Union,' a labor organization affili-
ated through United Automobile Workers of America with Congress
of Industrial Organizations, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Seventh
Region (Detroit, Michigan), issued its complaint, dated October 3,
1939, against Brown-McLaren Manufacturing Company, Detroit and
Hamburg, Michigan, herein called the respondent,' and against Ham-
burg Manufacturing Company, Hamburg, Michigan.' A copy of the
complaint, accompanied by notice of hearing and copies of the
charges filed, was duly served upon the respondent, upon Hamburg
Manufacturing Company, upon the Union, and upon the West Side
Local .4 At the hearing the complaint was amended in certain
respects.
With respect to the unfair labor practices the complaint, as
amended, alleged in substance: (1) that since on or about March 1,
1937, the respondent informed its employees or their representatives
that it would move its plant if the Union continued to seek recogni-
tion or continued to seek improvements in working conditions; criti-
cized its employees because of their' union activity and membership,
and made other anti-union statements and engaged in other anti-
i The Union ip a branch or "plant organization " of West Side Local 174, International
Union, United Automobile Workers of America, herein called the West Side Local, a local
union of United Automobile Workers of America The West Side Local is referred to in
the record , and in various papers therein contained , as Local 174, International Union,
United Automobile Workers of America; Local # 174, as well as by other similar names.
2 For purposes of convenience reference is herein made only to Brown -McLaren Manu-
facturing Company as the respondent.
3 Although dissolved in February 1939, as set forth below , Hamburg Manufacturing
Company continued to be at the time the complaint was issued and the hearing had, a
body corporate for purposes of participation in proceedings such as these . Pub. Acts
of Mich., 1933, Ch. 195 , Sec. 75.
' See footnote 1, supra:
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activity; (2) that on or about October 1, 1937, Hamburg Manu-
facturing Company was organized under the laws of the State of
Michigan ostensibly as an independent enterprise but in fact for the
sole benefit of the respondent and for the purpose of enabling the re-
spondent to transfer certain of its manufacturing operations from
its Detroit plant to the plant of Hamburg Manufacturing Company
at Hamburg, Michigan; that Hamburg Manufacturing Company
thereafter operated as an agency for and the alter ego of the re-
spondent, and on or about January 3, 1939, was absorbed by the re-
spondent as a division thereof pursuant to previous agreement; that
during the period, from on or about said October 1, 1937, until on
or about said January 3, 1939, the respondent moved machinery,
equipment, and operations from its Detroit plant to the Hamburg
plant and in connection therewith purported to enter into certain
specified transactions with Hamburg Manufacturing Company; that
since January 3, 1939, the respondent has continued to remove ma-
chinery, equipment, and operations and to perform in the Hamburg
plant operations formerly performed at its Detroit plant; that dur-
ing the course of said transfer of operations from the Detroit to the
Hamburg plant the respondent discharged 248 named persons 5 em-
ployed by it in Detroit, called the "old employees," and hired or au-
thorized the hiring of persons other than said old employees for the
conduct of operations at the Hamburg plant and to perform work
formerly done or which normally would have been done by said old
employees at the Detroit plant, said transfer of operations, said dis-
charges and said hiring or authorization of the hiring of persons
other than the old employees being in furtherance of a design to
avoid collective bargaining with and to discourage, membership in
the Union; (3) that the respondent by said acts and course of con-
duct discriminated in regard to the hire and tenure of employment
of said old employees in order to discourage membership in the
Union; (4) that the respondent discharged and locked out said old
employees because they were members of the Union and refused and
refuses to reinstate them in its employ, thereby discriminating with
regard to their hire and tenure of employment in order to discourage
membership in the Union; (5) that on or about November 1, 1937,
and at specified and other times thereafter, the respondent refused to
bargain collectively or negotiate with the Union in respect to rates
of pay, wages, hours of employment and other conditions of em-
ployment, particularly concerning the said transfer of operations from
the Detroit to the Hamburg plant, the discharges of the
old employees and the hiring of new employees at the Hamburg plant,
8 The names of these employees are set forth in a certain appendix to the complaint,
as amended , designated "Appendix A."
BROWN-McLAREN MANUFACTURING COMPANY 987
and all issues involved or connected therewith, although on or about
March 1, 1937, and at all times thereafter, the Union was the ex-
clusive collective bargaining representative of the respondent's em-
ployees within an appropriate collective bargaining unit composed
of all production employees at the Detroit plant employed on an
hourly or piece-rate basis, excluding supervisory employees with the
power to hire and discharge, and clerical and engineering employees;
(6) that the respondent on or about December 15, 1937, discharged
Ralph Gower, an employee at its Detroit plant, because of his position
as chief shop steward for the Union, reinstated him on or about
December 22, 1937, however, upon the condition that he relinquish
said position, and without all rights and privileges, including senior-
ity formerly held by him, and laid off said Gower shortly after said
December 22, 1937, for lack of seniority, the respondent by said dis-
charge of Gower, by said refusal to reinstate him with all rights and
privileges and by said lay-off, discriminating in regard to the hire
and tenure of employment of said employee and discouraging mem-
bership in the Union; (7) and that the respondent on or about Janu-
ary 1, 1938, and thereafter, directly and through its agent and alter
ego, Hamburg Manufacturing Company, imposed and continues to
impose as a condition of employment at its Hamburg plant the re.-
quirement that its employees enter into individual undertakings and
contracts with the respondent and its said agent and alter ego by the
terms of which employees would and continue to waive rights guar-
anteed them in Section 7 of the Act; and (8) that by the foregoing
acts, and each of them, the respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
On October 13, 1939, the respondent and Hamburg Manufacturing
Company filed separate answers to the complaint, thereafter amend-
ed, in which they, respectively, reserved objections to the jurisdiction
of the Board and to the validity of the Act as applied to them, and, in
substance, denied having engaged in the ,unfair labor practices al-
leged in the complaint, as amended. The respondent in its answer,
as amended, averred that it discharged Gower for "insubordination,
disobedience and incitement to riot," that it reinstated him at the
request of the Union, and that the• Union had agreed to appoint
another shop steward in Gower's place.
Pursuant to notice a hearing was held at Detroit, Michigan, from
November 9 to 17, 1939, before Henry J. Kent, the Trial Examiner
duly designated by the Board. The Board, the respondent, Hamburg
Manufacturing Company, and the Union appeared, were represented
by counsel, and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence bearing on the, issues was afforded all parties. At the opening
of and during the hearing the respondent and, Hamburg Manufac-
turing Company each moved in writing that the complaint, as
amended, be dismissed as to it, respectively, on the ground ' that the
Board lacked jurisdiction over the subject matter and over such
party; that the Act as applied to such party contravened various pro-
visions of the Constitution of the United States; that the allegations
of the complaint, as amended, were insufficient in certain respects;
that laches occurred in connection with the issuance of the complaint,
as amended; and for other reasons. Hamburg Manufacturing Com-
pany also requested a dismissal of the complaint, as amended, as to
it on the further ground that the complaint, as amended, failed to
allege any violation 'of the Act by it, and that said Company was
dissolved on February 10, 1939. The Trial Examiner denied these
motions in his Intermediate Report, mentioned below, and his rulings
in this respect are hereby affirmed.
During the hearing, counsel for the respondent made application
of the Trial Examiner for issuance of a subpoena daces tecum calling
for production by the- Union of minutes of union meetings from
February 1937 to the date of the hearing, "to see what light they
throw upon the authority of the Union to represent employees of
Brown-McLaren," and "for all purposes"; and also for subpoenas
daces tecum to require production by the Union of other of its records
and documents 6 in order "to see what happened at the meetings
[of the Union] and what their [the Union's] membership records
show," also their "bearing upon the representation of these workers
by the Union." The Trial Examiner denied the applications. We
are of the opinion that the rulings of the Trial Examiner should be
sustained. In so far as the respondent was thereby precluded from
engaging in a general exploration into and investigation of union .
matters and affairs, the rulings were correct.7 As to the matter of
union membership and representation among employees of the re-
spondent, the membership, records of the Union, in the form of cards.
showing among other- things dues payments, were made available to
the respondent during the hearing, and a correct transcription of the
data appearing on these cards was introduced into the record with
'These records and documents are described in a certain written application for sub-
poenas lodged , but not pressed , by the respondent with the Trial Examiner at the
beginning of the hearing , as follows : "Correspondence between the Union and the Com-
pany [the respondent ] ; between the Union and any other Union or Union official, contracts
and agreements ; all relating to the labor relations between the Union and the Respondent
in any way . Also all contracts , letters, etc , relating to the unionization of Respondent's
Detroit plant . Also all records of the said Union, showing application for membership,
membership cards, records of payment of dues, etc "
4 National Labor Relations Board Rules and Regulations , Article II , Section 21 ; Na-
tional Labor Relations Board v. Dahlstrom Metallic Door Co, 112 F. (2d) 756 (C. C A. 2),
enf'g Matter of Dahlstrom Metallic Door Co. and United Electrical, Radio cf Machine
Workers of America, Local No. 307, 11 N . L. R. B. 408.
BROWN-McLAREN MANUFACTURING COMPANY 989
the assent of the respondent. In view of this and other matters ap-
pearing in the record," and in the absence of any claim by the re-
spondent that the minutes of union meetings or other matters sought
would controvert the facts reflected and established by the member-
ship records, as transcribed, we are unable to see that the Trial Ex-
aminer's refusal to permit the respondent to explore furtfier the ques-
tion of union membership and representation, was prejudicial to the
-respondent."
At the close of the Board's case the Trial Examiner granted, with
the consent of the Board, but over-the objection of the Union, a
motion by the respondent to dismiss the complaint, as amended, in
so far as it alleged that the respondent discharged Ralph Gower
because of his position as a chief shop steward for the Union, but
denied the respondent's motion to dismiss other allegations of the
complaint, as amended, regarding Gower. He reserved ruling on
various other motions of the respondent made during the hearing
to dismiss portions of the complaint, as amended, for want of proof.
These motions are hereby denied. The Trial Examiner granted
motions made by counsel for the Board at' the close of the Board's
case and at the close of hearing to conform the pleadings to the
proof with respect to immaterial variances in names, dates, and places.
On the last day of the hearing counsel for the Board requested
leave of the Trial Examiner to file on behalf of the Union a Supple-
ment to Third Amended Charge, and,moved that the complaint, as
amended, be amended further in certain respects. The respondent
entered its denial of the allegations of said amendments, in the event
of granting of that motion. In his Intermediate Report, the Trial
Examiner denied leave to file the Supplement to Third Amended
Charge, but granted the motion to amend. We hereby affirm this
ruling of the Trial Examiner.' During the course of the hearing
8 Earlier in the hearing , in the course of proof by the Board of union membership
and representation , counsel for the Board offered to make available to counsel for the
respondent , cards signed by the respondent's employees in applying for membership in
the Union . The above -mentioned membership cards were made up as to certain stems
from information appearing on these membership application cards At that time
counsel for the respondent did not accept the offer, and asserted that the respondent did
,"not feel it incumbent . . . to bring them [ the membership application cards] into court"
A See Section III B 2 , infra.
10 The respondent was not prejudiced by reason of the fact that the motion was made
shortly before the close of the hearing Prior to the making of the motion the respondent
conceded that the "contracts" at issue had been entered into with each employee at the
Hamburg plant Although counsel for the Board exhibited his willingness to stipulate
to a continuance of the hearing, counsel for the respondent stated, "We are not asking
for more time" There is no merit in the respondent's claim that allowance of the
amendment to the complaint was improper , as not being based upon any charge. As we
have said on another occasion , "It is true that the Board cannot initiate proceedings
itself, and it is the purpose of charges to institute proceedings . When, however , charges
are filed the Board proceeds , not in vindication of private rights, but as an administra-
tive agency charged by Congress with the function of enforcing the Act and bringing
about compliance with its provisions Accordingly , when in the course of an investigation
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner -made various other rulings on motions and on
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed. After the
hearing the respondent submitted to the Trial Examiner a brief in
support of its case.
On May 6, 1940, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all parties, in which he found
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section
8 (1), (3), and (5) and Section 2 (6) and (7), of the Act. He
recommended that the respondent cease and desist from its unfair
labor practices and take certain specified affirmative action to remedy
the situation brought about by the unfair labor practices which he
found. He further recommended that the allegations of the com-
plaint, as amended, relating to Ralph Gower, be dismissed.
On May 31, 1940, the respondent filed exceptions to the Inter-
mediate Report and the record, submitted a brief in support of its
exceptions and requested oral argument before the Board. On
June 3, 1940, eight self-styled "citizens and inhabitants" of Ham-
burg, acting for themselves and "in the collective behalf and interest
of the Citizens of the Community in which they reside," filed with
the Board a petition, together with certain annexed affidavits, where-
in they petitioned leave to intervene in these proceedings, because
of certain alleged financial and other interests, and requested "that
'full consideration be given in decisions hereon to their rights .. .
and that the decision of this body protect their rights in the prem-
ises." On June 6, 1940, the Board issued an order denying the peti-
tion. On June 20, 1940, one Hayner lodged with the Board an
affidavit in connection with said petition, which affidavit is hereby
directed to be filed instanter as part of the record herein.
Pursuant to notice a hearing for the purpose of presenting oral
argument on the exceptions to the Intermediate Report and the record
was held before the Board at Washington, D. C., on August 6, 1940.
The respondent and the Union were represented by counsel and par-
ticipated in the argument. .
begun upon 'charges duly filed evidence is disclosed that a respondent has engaged in
unfair labor practices not specified in the charges , public policy , as well as the policies
of the Act, require the Board to proceed with respect to such unfair labor practices, and
if, after a full hearing it is found that such respondent has engaged in such unfair labor
practices , to order it to cease and desist therefrom , and to take such affirmative action
as will remedy the effects thereof . The Board would be failing in its duty as a public
agency if it chose to do otherwise ." Matter of Killefer Manufacturing Co and Steel
Workers Organizing Committee, 22 N. L R B. 484. See also Amalgamated Utility
Workers v . Consolidated Edison, Inc ., at al., 309 U . S. 261; National Licorice Co. v.
N. L. R. B., 309 U . S. 350 '; Consumers Power Co. v . N. L. R. B., 113 F. ( 2d) 38 ( C. C. A. 6)
enf'g Matter of Consumers' Power Co., a corporation and Local No. 740, United Electrical,
Radio d Machine Workers of America , 9 N. L. R . B. 701.
BROWN-McLAREN MANUFACTURING COMPANY 991
The Board has considered the exceptions and the brief, and, except
where the exceptions are consistent with the findings, conclusions of
law, and order below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT AND OF HAMBURG MANUFACTURING
COMPANY
The respondent, Brown-McLaren Manufacturing Company, is a
Michigan corporation engaged in the manufacture, sale, and distri-
bution of screw-machine products, reamers, hand tools, and hand-tool
accessories. It owns two manufacturing plants, one at Detroit, Michi-
gan, herein called the Detroit plant, owned by the respondent since
1918, and another at Hamburg, Michigan, now known as the Hamburg
Division of Brown-McLaren Manufacturing Company and herein
called the Hamburg plant, which it acquired in January 1939. From
January until September 11, 1939, the respondent engaged in manu-
facturing operations at both plants. On September 11, 1939,'it closed
down the Detroit plant, under circumstances more particularly de-
scribed below, and since that time has carried on' exclusively at the
Hamburg plant all its manufacturing operations. Prior to January
1939 the Hamburg plant was owned and operated by Hamburg Manu-
facturing Company, a Michigan corporation no longer in existence,
which, as hereinafter found, was at all times during its existence an
alter ego of the respondent, directed and controlled by the respondent.
During the period from about December 1937 until on or about Sep-
tember 11, 1939,' work and manufacturing operations performed at
the Detroit plant were removed or transferred to the Hamburg plant.
In the course of and for use in its manufacturing operations at the
Detroit plant the respondent in 1937 purchased $384,512 worth of
raw materials, consisting principally of brass and steel, of which
approximately 60 per cent were purchased and shipped to the Detroit
plant from outside the State of Michigan. In the same year the
total sales of products manufactured at the Detroit plant amounted
to $1,170,155, of which approximately 27 per cent were sold and
shipped from the plant to customers outside the State of Michigan.
In 1938 the respondent purchased for manufacturing purposes $126,-
314 worth of raw materials, of which approximately 49 per cent were
purchased and shipped to- the Detroit plant from outside the State
of Michigan. In the same year the total sales of finished products
manufactured at the plant amounted to $348,284, of which approxi-
mately 28 'per cent were sold, and shipped from the plant, to cus-
tomers outside the State of Michigan. In the first 6 months of 1939
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent purchased $155,000 worth of raw materials for purposes
of manufacturing at both the Detroit and Hamburg plants, of which
approximately 35 per cent were purchased and shipped to the re-
spondent in Michigan from outside that State. In the first 9 months
of 1939 the total sales of the respondent's finished products amounted
to $396,320, of which 33 per cent were sold, and shipped from within
Michigan, to customers outside the State.
As set forth above, prior to January 1939 the Hamburg plant
was owned and operated by Hamburg Manufacturing Company.
This company was organized as a Michigan corporation on October 1,
1937, and thereafter until January 1939 engaged in the manufacture,
sale, and distribution of machinery and screw-machine parts. In
1938 it purchased $82,402 worth of raw materials for manufacturing
purposes, of which approximately 14 per cent were purchased and
shipped to the Hamburg plant from outside of Michigan. In the
same year the total sales of Hamburg Manufacturing Company's
finished products amounted to $186,103, some 80 per cent of which were
sold and shipped from the Hamburg plant to customers outside the
State of Michigan.
There is no precise showing of the extent of the respondent's business
operations and transactions constituting and affecting commerce, car-
ried on by it in connection with the Hamburg plant since the closing
of the Detroit plant in September 1939. At the time of the hearing
manufacturing operations which had been engaged in at the Hamburg
plant prior to September, were being continued there, and manu-
facturing operations which had been carried on at the Detroit plant
before its close were transferred or being transferred to the Hamburg
plant. In view of the continuance by the respondent at the Hamburg
plant of substantially the same manufacturing operations previously
engaged in by it at the two plants, and in the absence of any evidence
to the contrary, we presume, and we find, that the respondent's busi-
ness, both as to the proportion and amount of raw materials purchased
and shipped to the Hamburg plant from outside of the State of
Michigan, and as to the proportion and amount of finished products
sold and shipped from that plant to customers outside of that State,
has continued to be since September 1939 substantially as theretofore.
II. THE ORGANIZATION INVOLVED
Brown-McLaren Branch of West Side Local 174, International
Union, United Automobile Workers of America, the Union herein,
is a labor organization constituting a branch or "plant organization"
of West Side Local 174, International Union, United Automobile
Workers of America, an, amalgamated local union of United Auto-
mobile Workers of America, a labor organization affiliated with the
BROWN-McLAREN MANUFACTURING COMPANY 993
Congress of Industrial Organizations, a labor organization.11 The
Union admits to membership persons employed by the respondent.
IIL THE UNFAIR LABOR PRACTICES
A. Events d4ta ing March 1937
Prior to February 1937 no labor organization existed among em-
ployees of the respondent's Detroit plant. In that month the Union
enrolled as members a substantial number of the plant's production
workers. On March 1, 1937, the respondent closed the plant and
assembled the employees in a hall it rented for that purpose. Plant
Superintendent Kopsch and a foreman, one Tincher, addressed the
gathering. Other foremen and company officials were present. At
the hearing the respondent contended that it took this step because
it feared a "sit-down" strike at the plant. Kopsch in his talk ad-
verted to what he termed "unrest" in the plant and told the em-
ployees that the respondent had rented the hall in order to afford
them an opportunity to "get the thing settled one way or the other,
so that they could return to work and be in harmony," and that "if
they wanted to form a relief association . . . [he] would be glad
to sit down and help them form it." Tincher stated that the "re-
spondent would never recognize the U. A. W. A. [the Union],"
although it was willing to have the employees form "their own
union ," i. e., an unaffiliated company union, and averred that such
an organization would cost the employees less than membership in
the Union. When the talks were concluded one employee who was
active in the Union openly suggested to the other employees as-
sembled that those desiring to be represented by the Union for the
purpose of collective bargaining should signify such desire by stand-
ing up. The "vast majority" of employees arose. The meeting then
ended. Thereupon the Union decided to picket the respondent's
plant and began doing so the following day, March 2, 1937. The
plant meanwhile remained closed. The respondent called another
meeting of the employees on March 2, which some attended, at which
its secretary, one Heath, assured those present that if they "stuck
with the company . . . in return . . . [the respondent] would be
nice" to them, and held out a wage increase. Nevertheless, on March
2 the Union presented the respondent with its demands for increased
wages and improved working conditions. The following day the re-
spondent entered into a collective labor contract with the Union cov-
" The charter of Local 174, dated September 1, 1936 , recites that United Automobile
Workers of America was then affiliated with American Federation of Labor. However,
the International Union, prior to the filing of the third amended charge herein, terminated
its affiliation with American Federation of Labor and affiliated itself with Congress of
Industrial Organizations.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ering wages, hburs, and other conditions of employment, and ex-
tending to the Union recognition "as the sole collective bargaining
agency for the employees of" the respondent. On March 4 the plant
reopened.
While the foregoing acts and statements of officers and agents of
the respondent show that prior to March 3, 1937, the respondent
sought to oppose the organizational efforts of the Union, on that
date the respondent entered into a collective labor contract with
the Union. The respondent's subsequent unfair labor practices do
not constitute a resumption or continuance of the practices pre-
ceding the execution of the contract. Under all the circumstances
disclosed by the record we find that it will not effectuate the policies
of the,Act to make ultimate findings with respect to the acts and
statements of the respondent preceding the execution of the March
3 contract12
B. The refusals to bargain collectively
1. The appropriate unit
The complaint, as amended, alleges that all production employees
employed at the Detroit plant of the respondent on an hourly or
piece-rate basis, excluding supervisory employees with the power to
hire and discharge, and clerical and engineering employees, consti-
tuted at all times material herein a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the Act. The respondent avers in its answer that it has no
knowledge of the verity of this allegation.
Thee Union and the respondent have entered into three successive
collective labor contracts, the first, already mentioned, on March 3,
1937, the second on May 4, 1938, and a third on June 7, 1939. By
the terms of the second and third contracts the respondent granted
recognition to the Union as exclusive collective bargaining represen-
tative of, employees within the following unit : "production employees"
at the Detroit plant, excluding "superintendents, foremen and any
other employees who have authority to hire or discharge" and "gen-
eral office employees." It is apparent that the classes of employees
covered by all three contracts 13 is substantially the same as those
comprising the unit alleged to be appropriate. The respondent of-
fered-no evidence at the hearing which would show that the allegedly
appropriate unit was inappropriate, nor did it except to the Trial
12 Cf. Matter of Tulsa Boiler and Machinery Company and Steel Workers Organizing
Commtittee, 23 N. L. R. B 846.
'" As heretofore set forth , the first contract provided for recognition of the Union as "sole
collective bargaining agency for the employees " of the respondent . The record shows that
while this contract was in effect the Union represented substantially the same classes of
employees as those alleged to constitute an appropriate collective bargaining unit.
BROWN-McLAREN MANUFACTURING COMPANY 995
Examiner's finding that such unit was appropriate. It conforms
with plant units we have found to be appropriate in other cases.
We find that the production employees employed at the Detroit
plant of the respondent on a hourly or piece-rate basis, excluding
supervisory employees with the power to hire and discharge, and
clerical and engineering employees, constituted at all times material
herein a unit appropriate for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that said unit at all such times in-
sured to employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ated the policies of the Act.
2; Representation by the Union of a majority in the appropriate unit
There was introduced in evidence a list of the names of all employees
of the respondent, 375 in number, within the collective bargaining
unit above found to be appropriate who were on the Detroit plant
pay roll at any time during 1937, together with a statement as to
each such employee of the period or periods of his or her lay-off or
lay-offs in and after 1937 until the closing of the Detroit plant on
September 11, 1939. Since employment at the Detroit plant in 1938
and 1939 was less than in 1937, and since persons added to the plant
pay roll in 1938 and 1939 were laid-off employees recalled to work in
accordance with a seniority list established in March 1937, we find
that the aforesaid pay-roll list contains the names of all persons em-
ployed in the Detroit plant in 1938 and 1939. No objection was made
at the hearing by any of the parties to the accuracy of the informa-
tion set forth in the above-mentioned pay-roll list, or otherwise, and
we find that such information is true and correct. There also was
introduced in evidence a so-called "membership schedule," with cer-
tain supplements thereto, purporting to set forth with respect to
some 318 employees whose names appeared on the above-described
pay-roll list, the respective dates of their initiation as members of
the Union, and the fact whether they, respectively, paid their monthly
dues to the Union, or received from the Union in lieu thereof an
"out-of-work" receipt, for the monthly dues period covering each of
the following dates: November 1 and December 21, 1937; March 7
and June 8, 1938; March 23 and May 15, 1939; or, if they had neither
paid such dues nor received such receipt, had paid dues or received
an out-of-work receipt for a monthly dues period within 3 months
previous to each of such dates.14 The information contained in the
14 This last classification is indicated on the membership schedule , and supplements,
by three dashes ("- - -") or at times by two dashes ("- -"). At the hearing one
Scott, who had charge of the union membership records, and who had prepared therefrom
the membership schedule, and first supplement ( subject to inspection by counsel for the
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership schedule, and supplements, is an accurate transcription
of data appearing on certain membership cards regularly kept by
the Union as records of union membership. The data respecting
initiation dates appearing on these cards were obtained from union
membership application cards signed by the employees, or from initia-
tion dues receipts issued to them ; that respecting dues payments or
out-of-work receipts, from copies of receipts issued by the union shop
stewards. The out-of-work receipt operated as a waiver by the
Union of a member's monthly dues, because of his inability to obtain
more than 40 hours' work in the dues period. Although the 1937
and 1939 constitutions of ^ the United Automobile Workers of Amer-
ica, the International union with which the Union is affiliated, con-
tained provisions for suspension or expulsion from local unions in the
event of an arrearage of dues extending 3 months,15 none of the em-
ployees named on the membership schedule, and supplements, was
ever suspended for non-payment of dues.
The respondent in its brief to the Board challenges the propriety
of the membership schedule, and supplements, as well as the mem-
bership cards upon which they are based, as proof of membership
in the Union. We find no merit in this contention. There is no
claim that the schedule and supplements are inaccurate transcriptions.
The membership cards were made available to the respondent for
examination, and it did examine them. The cards are the records
maintained by the Union as permanent records of the transactions
set forth. The entries thereon were made in the regular course of
union business by persons charged with maintaining such record and
employed by the Union for slich purpose. We think it immaterial
that the application cards were not produced, or that the dues pay-
parties ), in one part of her testimony attributed to the dashes where used in the mem-
bership schedule (not supplements ) the signification of membership in good standing
according to her consideration , stating that in some cases she considered a person to be
a member in good standing if he or she had not paid dues or received an out -of-work
receipt within 3 previous months where subsequently an out-of -work receipt was issue"
to such person covering the period in question . In another part of her testimony, in
adverting to notations on the schedule which state that the dashes signify membership
in good standing and dues paid or an out-of-work receipt issued within 3 months previous
to the specified date, she testified that that notation stated the signification "as the
present record stands ." One supplement , Board 's Exhibit 6-D, contains an itemization
of all instances, as shown by the union membership cards, wherein a union member named
on the membership schedule failed to pay his dues or receive an out-of-work receipt for a
period of more than 3 months. A compaiison of the information on this supplement
with the membership schedule confirms the conclusion that the dashes indicate, as set
forth in the notations on the membership schedule , and supplements , payment of dues
or receipt of an out-of-work receipt , for a dues period within 3 months previous to the
date in question.
is The 1937 constitution provided : "Any member who shall fail to pay dues and assess-
ments required by this Constitution for a period of three months shall be suspended from
membership ." The 1939 constitution provides • "Any member becoming in arrears in
dues or assessments within the time required by a Local Union, which in no case shall
be more than three calendar months, unless officially exonerated from the payment of same
by the Local Union, shall forfeit his membership . .
BROWN-McLAREN MANUFACTURING COMPANY 997
ments were recorded ex parte. We find that the employees named
in the membership schedule, and supplements, were initiated as mem-
bers of the Union at the respective times therein set forth, that they
thereafter paid their dues or received an out-of-work receipt, for'
the dues periods covering November 1 and December 21, 1937; March
7 and June 8, 1938; March 23 and May 15, 1939; or paid their dues
or received an out-of-work receipt for a dues period within 3 months
previous to such dates, as therein set forth."'
A comparison of the above-mentioned,pay-roll list with the mem-
bership schedule, and supplements, discloses, and we find, that upon
the respective dates set forth in the following table, the number of
employees within the appropriate unit at work in the Detroit plant
was as set forth in the column entitled "No. in unit at work," the
number of such employees who paid dues to the Union for the monthly
dues periods covering said dates was as set forth in the column en-
titled "pd. dues," the number of such employees who received out-of-
work receipts for the monthly dues periods covering said dates was
as set forth in the column entitled* "o-w receipts," and the number
of such employees who had paid dues or received an out-of-work
receipt for monthly dues periods within 3 months prior to said dates
was as set forth in the column entitled "3-mo. dues or o-w receipts."
Date
No in
unit at
pd . dues o-w re-
3 mo. dues
or w re-
work op s
e
November 1, 1937-------------------------------------- 303 282 2 2
December 21, 1937 -- ----------------- -
------------ ------
146 138 3 1
March 7, 1938 ------------------------ - 79 61 15 1
June 8, 1938 -------------------------------------------- 73 60 10 1
March 23, 1939_________________________________________ 74 60 8 4
May 15. 1939___________________________________________ 75 51 3 17
It is apparent from the foregoing, and we find, that on each of the
above-mentioned dates, a majority of the employees in the appropriate
unit at work in the Detroit plant not only were members of the
Union, but also members in good standing.17 We are of the opinion
19 See, e. g ., Matter of Brown Shoe Company, Inc., at at. and National Leather Workers
Association Local #44, affiliated with the Committee for Industrial Organization, 22
N L R B 1080; Art Metal Construction Co v. N L R B, 110 F (2d) 148 (C C A 2l-
enf'g as mod . Matter of Art Metal Construction Company and International Association
of Machinists , Local 1559 , affiliated with District # 65, of the I. A. M. (A. F. of L ),
12 N L R B 1307.
17 It appears from the above-mentioned pay-roll list that at no time in 1937 did the
number of employees at work in the Detroit plant, together with the number of those
who worked there that year but were laid off, exceed 375. For reasons above stated, we
find that the same situation obtained in 1938 and 1939. Since the seniority list was
made up in March 1937, and in view of the foregoing; we are satisfied that the names
of persons upon the pay-roll list include all persons on the seniority list in 1937, 1938,
and 1939 . If there be included in the appropriate unit not only those employees at work
in the Detroit plant but those laid off and on the seniority list, and that number be not
more than 375, and we so find, then , as shown by a comparison of the above -mentioned
pay-roll list with the membership schedule , and supplements , upon the respective dates
451269-42-vol. 34-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that these facts adequately establish, and we find, that on November 1,
1937, and thereafter throughout the period that the Detroit plant
continued in operation, a majority of the employees at work in the
Detroit plant were members of the Union, and in good standing.
As stated above, the Union and the respondent have entered into
three successive labor contracts, the first on March 3, 1937, the second
on May 4, 1938, and a third on June 7, 1939, by the terms of which
the respondent recognized the Union as the statutory representative
of employees within the appropriate unit. - The respondent, in connec-
tion with its execution of the first and third contracts, did not chal-
lenge the fact that the Union had been designated by a majority of
the respondent's employees in the unit. Although the respondent
made such challenge prior to the execution of the second contract the
record shows that majority designation was then established to the
respondent's satisfaction.
Upon the foregoing facts, and the record, we find that on November
1, 1937, and thereafter throughout the period that the Detroit plant
continued in operation, including November 1937, January 24, March
22, and June 8, 1938, the Union was the duly designated representa-
tive of a majority of the employees within the appropriate unit and
that, pursuant to Section 9 (a) of the Act, it was at all such times
the exclusive representative of all, the employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusals to bargain collectively
The collective labor contract of March 3, 1937, materially increased
the respondent's production costs at the Detroit plant. In March
set forth in the following table, the number of such employees who paid dues to the
Union for the monthly dues period covering said dates was as set forth in the column
entitled "pd. dues," the number of such employees who received out-of-work receipts for
the monthly dues periods covering said dates was as set forth in the column entitled
"o-w receipts," and the number of such employees who had paid dues or received an
out-of-work receipt for monthly dues periods within 3 months prior to said dates was as
set forth in the column entitled "3-mo dues or o-w receipts"
Date pd. dues o-w receipts 3 me dues oro-w receipts
November 1,1937--------------------------------------- 292 3 13
December 21, 1937------------------------------------ 196 87 15
March 7.1938------------------------------------------- 68 211 9
June 8, 1938 -------------------------------------------- 68 181 34
March 23,1939 ------------------------------- 65 106 58
May 15,1939-------------------------------------------- 55 28 127
We find from the foregoing that on each of the above-mentioned dates a majority of
the 375 employees were members of the Union , further, that they were members in good
standing . We accordingly find that on November 1, 1937, and thereafter throughout
the period that the Detroit plant continued in operation , a majority of the 375 employees
were members of the Union , and in good standing.
BROWN-McLAREN MANUFACTURING COMPANY 999
and April 1937 the respondent sought and repeatedly requested of
the Union an agreement to modify the terms of the March 3 contract
by increasing from four to five the number of machines per operative
operated by employees producing goods for the respondent's principal
customer, Bower Roller Bearing Company,18 and by reducing the
wages of other employees who performed "second operation" work
on goods produced for another important customer, Sears, Roebuck &
Company. The respondent informed the Union that unless produc-
tion costs were reduced in this manner, the respondent probably
would receive-no further business from Bower Roller Bearing Com-
pany, because of the rise in prices necessitated by the increased pro-
duction costs, and would sustain a substantial loss on goods produced
for and delivered to Sears, Roebuck & Company under an outstanding
sales contract made with that, company prior to the March 3 contract.
The Union refused these requests. Although the respondent offered
a rise of 5 cents per hour in compensation paid to the aforementioned
machine operatives if they would operate an additional machine, these
employees after voting upon the matter directed the Union to reject
the offer of the respondent. In May 1937 Bower Roller Bearing
Company notified the respondent of the withdrawal of its business
because of the price increase.- In the period which followed, the
respondent dismissed a substantial number of employees at the Detroit
plant as a result of the loss of this business.
At various times from April through September 1937 the respondent
advised the Union that it was continuing to sustain a loss on goods
sold under the Sears, Roebuck & Company contract, and repeated its
request for an agreement to reduce the wages of employees engaged
in second operation work in order to eliminate the deficit. It cautioned
the Union that unless wages were decreased, it might be unable to sell
its products to that company. The record shows that in 1937 the
respondent delivered $130,414 worth of goods to Sears, Roebuck &
Company at a loss of $46,131,20 that in July, 1937 the respondent upon
an investigation of the matter ascertained that it had incurred as of
that time a loss under its contract in the amount of $20,912. The
18 These employees operated Browne & Sharpe automatic screw machines and the pin
and hopper wire machines used in connection with the manufacture of products for Bower
Roller Bearing Company.
11 In 1936 the amount of sales of the respondent 's products to Bower Roller Bearing
Company was approximately $600,000. Although it notified the respondent of the with-
drawal of its business in May 1937 , the company agreed to purchase from the respondent
goods manufactured from raw materials which the respondent had acquired in anticipation
of production of such goods . The amount of sales of the respondent 's products to Bower
Roller Bearing Company was approximately $400,000 in 1937 and approximately $ 35,001)
in 1938.
20 The respondent 's net income for 1937 was $34,316.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union adhered to its refusal to acquiesce in a decrease in the wages of
employees porforming the second operation work?1
In August 1937 an attempt by the respondent to reduce production
costs on goods sold Sears, Roebuck & Company by placing the second
operation work with other manufacturers was unsuccessful. Toward
the end of that month the respondent began to consider the desir-
ability of removing its manufacturing operations from-Detroit to
another locality where workers could be obtained at wages lower
than those paid its Detroit plant employees under the March 3 con-
tract. On September 21, 1937, the respondent reached an agreement
or understanding with its secretary, Heath, in pursuance of which
Heath undertook to erect at Hamburg, Michigan, some 40 or 50 miles
distant from Detroit, a manufacturing plant capable of performing
the afore-mentioned second operation work, the plant to be owned
by a separate corporation formed for that purpose, and the respon-
dent undertook to lend $15,000 to the new corporation and to trans-
fer the second operation work to it. The respondent also was given
an option to purchase in the future the new plant. On October 1,
1937, the new corporation was formed and known as Hamburg Manu-
facturing Company.22 On October 11, 1937, Hamburg Manufac-
turing Company acquired through Heath a plant site at Hamburg
and shortly thereafter began erection of a plant thereon. On or
about November 1, 1937, the respondent posted a notice in the Detroit
plant announcing to the Detroit plant employees that it was "forced
to sell the Sears work including all jigs and fixtures" and assigning
as the reason therefor its alleged inability "to meet competition."
On November 8, 1937, at a conference between the Union and the
respondent the Union requested the respondent to bargain collec-
tively regarding the matter of the respondent's announced subcon-
tracting to another manufacturer of the second operation work per-
formed in the Detroit plant on goods sold Sears, Roebuck & Com-
pany, and offered in that connection to negotiate a reduction in
wages provided the Union's auditors first could verify from the
respondent's books the loss on sales of these goods. The respondent
21 There is some testimony in the record to the effect that in August or September 1937
the Union manifested to the respondent a willingness to consider and negotiate the re-
quested reduction in wages, provided the respondent would permit the Union to verify
the loss on the Sears, Roebuck & Company contract by an audit of the respondent's books ;
and that the respondent refused to permit such an audit to be made . There also is
evidence in direct conflict with this testimony . We are satisfied that while in the latter
part of September the Union mentioned to the respondent that the 'respondent's books
would have td be audited before any credence could be given to the respondent 's state-
ments concerning the loss, at no time prior to the posting in November 1937 of the notice
set forth below did the Union evince to the respondent, with any real certainty, a
willingness to negotiate with respect to the requested wage reduction . Its attitude was
one of relying upon the contract
22 A party to these proceedings.
BROWN-McLAREN MANUFACTURING COMPANY 1001
replied that the matter was no longer open to negotiation, that the
work had already been subcontracted, and in response to interroga-
tion by the Union refused to name the • manufacturer who was to
perform the work in question. Upon the Union indicating that it
desired and in the future would desire to negotiate with the re-
spondent respecting the subcontracting of any other Detroit plant
work which the respondent might contemplate, the respondent as-
sured the Union that it did not intend to subcontract other work.
Thereafter in November, and subsequently, the respondent shut
down some of the machines in the Detroit plant which had been
used in the production of goods for Sears, Roebuck & Company.
On or about November 18, 1937, construction of the Hamburg plant
was completed.
In the latter part of November the Union became apprised of
the erection of the Hamburg plant and at a conference with the
respondent at that time charged the respondent with not having in
fact subcontracted to another manufacturer the second operation
work on goods sold Sears, Roebuck & Company, but with merely
proposing to transfer the work to a plant in Hamburg, which the
respondent itself would operate. The Union inquired as to the re-
spondent's intention with respect to transferring to and employing
in the Hamburg plant Detroit plant employees who otherwise would
be laid off in connection with the proposed removal of work to Ham-
burg, and requested in effect that the respondent assign such em-
ployees to work in the Hamburg plant. At that time no persons
had been employed to perform production work in the Hamburg
plant.23 The respondent replied that the matter of employment of
workers at Hamburg was beyond its power to negotiate with the
Union, because the Hamburg plant was owned by a separate corpo-
ration . The Union again indicated its desire and willingness to
negotiate regarding the subcontracting or transferring of work
other than work on goods produced for Sears, Roebuck & Company;
the respondent repeated its assurance that it would not subcontract
or transfer other work.
In the following December the respondent began removal to the
Hamburg plant of some of the machinery and equipment in its
Detroit plant.24 Substantially all the machinery and equipment then
and thereafter installed in the Hamburg plant came from the Detroit
plant. On December 21 the Union requested the respondent to
za At the Hamburg plant in the last week of November , three persons were employed as
truck driver , handy man , and millwright and construction man, respectively . In December
1937 nine persons were there employed ; however, these persons were hired to perform
other than production work prior to January 1938.
24 It was understood by the parties that Hamburg Manufacturing Company would pay
the respondent for the machinery a rental fee equal to the amount of current depreciation
of the machinery
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiate with. respect to the proposed removal by the respondent
of certain machinery and equipment in the Detroit plant which had
been used in manufacturing products other than those sold Sears,
Roebuck & Company. The respondent flatly refused to negotiate
concerning their removal.
In January 1938 manufacturing operations were begun in the
Hamburg plant, and to it,were then transferred the second operation
work on goods produced for Sears, Roebuck & Company which pre-
viously had been performed in the Detroit plant .2", Because of the
loss of work which would and did result therefrom at the Detroit
plant, the respondent in the period from on or about November 1,
1937, to on or about February 15, 1938, laid off a number of the
Detroit plant employees.26 These persons, with a few exceptions,
were not employed thereafter in the Hamburg plant, although sub-
stantially all had performed and were capable of performing- the
work and operations in question.
On January 17, 1938, about 2 weeks after the beginning of oper-
ations at Hamburg, the respondent, by notice posted in the Detroit
plant, informed the plant employees that it did thereby terminate
the March 3 contract with the Union, "due to the fact that it is
impossible ... to manufacture at a profit in this locality under our
present agreement with" the Union. The March 3 contract con-
tained no provision fixing its duration. From January 17 until
May 4, 1938, the Union and 'the respondent conferred from time to
time concerning the making and provisions of a successor collective
labor agreement. Pending these negotiations the Union and the
respondent on January 24, 1938, agreed to abide by the terms of
the March 3 contract. On May 4 such an agreement was executed.
In the course of these conferences the Union on several occasions,
particularly on January 24 and March.22, 1938, sought to negotiate
with the respondent for the assignment to and employment in the
Hamburg plant of employees laid off in connection with the sub-
25 Throughout 1938 this second operation work constituted about 85 per cent of all
manufacturing performed in the Hamburg plant. No written contract was made by the
respondent with Hamburg Manufacturing Company concerning the assignment or transfer
of the second operation work. The transaction rested on the agreement or understanding
of the respondent with Heath of September 21, 1937 , mentioned above. About April or
May 1938 a new contract with Sears , Roebuck & Company was made providing for the
continuing production and sale of goods to it ; however, this contract, at the request
of Sears, Roebuck & Company, was made with Hamburg Manufacturing Company, not the
respondent . The respondent nevertheless continued thereafter to perform the first opera-
tion and other work involved.
2e From November 1 to 15, 1937 , the respondent laid off 50 Detroit plant employees ;
from November 15 to December 1, 1937, 52 such employees ; from December 1 to 15, 1937,
48 such employees ; from December 15, 1937 to January 1, 1938, 48 such employees ;
from January 1 to 15, 1938 , 15 such employees ; from January 15 to February 1, 1938,
14 such employees ; and from February 1 to 15, 1938 , 6 such employees . Hereinafter
we find that all such employees were laid off prima facie because of the removal of
manufacturing operations . See footnote 48, infra.
BROWN-McLAREN MANUFACTURING COMPANY 1003
contracting or transfer of work and manufacturing operations from
Detroit to Hamburg.27 The respondent refused to negotiate regard-
ing this matter. It adhered to the position which it previously as-
sumed that it "had no power to decide what was and was not being
done" at the Hamburg plant with respect to employment. The
Union also sought during these conferences to negotiate directly with
regard to the subcontracting or transfer of work and manufacturing
operations from the Detroit to the Hamburg plant. At the Janu-
ary 24, 1938, conference it requested the respondent to reconsider
having the Sears, Roebuck & Company second operation work per-
formed at Hamburg, and not to transfer or subcontract any other
operations and work performed in the Detroit plant. At a con-
ference on March 3, 1938, the Union repeated its request that the
respondent desist from transferring or subcontracting other opera-
tions and work. At a meeting on March 22, 1938, it offered to ac-
cept a reduction in wages of the Detroit plant employees if the
respondent would withdraw operations performed for it in the Ham-
burg plant. The respondent refused to negotiate upon these re-
quests. As to the transfer to or withdrawal from the Hamburg
plant of second operation work on goods sold Sears, Roebuck &
Company, it stated that the subject was "too late" for negotiation;
as to the transfer or subcontracting of other operations and work,
it denied at first having transferred or subcontracted such work,
but upon being advised by the Union that such was the case, refused
to negotiate concerning that matter. The record shows that at that
time the respondent had transferred or subcontracted for perform-
ance at Hamburg the operations and work on goods produced for
at least two customers other than Sears, Roebuck & Company. The
collective labor agreement above mentioned, executed on May 4, con-
tained no provision for employment at the Hamburg plant of em-
ployees laid off at the Detroit plant, nor any concerned with the
subcontracting or transfer of Detroit plant work and operations.
Between May 4, and June 8, 1938, the respondent removed further
machinery and equipment, and transferred its plating operations
from the Detroit to the Hamburg plant. During this period 10
Detroit plant employees were laid off.28 On June 8 the Union met
with the respondent. It again requested the respondent to assign
to and employ in the Hamburg plant employees laid off as a result
of the subcontracting or transfer of work and manufacturing opera-
tions to the Hamburg plant.29 The respondent again refused to
-'In the 6 months following January 24 , 1938, about 40 employees were hired at the
Hamburg plant
28 On June 8, 1938, about 73 persons were employed in the Detioit plant and about 48 in
the Hamburg plant.
29 From June 8, 1938, until the acquisition by the respondent of the Hamburg plant
in January 1939, about 47 persons were hired at the Hamburg plant.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider or discuss the matter, on the ground that the Hamburg
plant was owned by a "separate corporation" and the respondent
"had no connection with it at all." The Union also sought to nego-
tiate with respect to the transfer to and performance at the Hamburg
plant of manufacturing operations on goods produced for customers
other than Sears, Roebuck & Company which could be performed
in the Detroit plant. The respondent refused to discuss this matter,
averring that it could close the Detroit plant if it wished.
Previously, on May 16, 1938, at a meeting of its directors the
respondent initiated steps looking ultimately toward acquisition by
the respondent of the Hamburg plant and the enlarging of facilities
of that plant. On July 12, 1938, stockholders of the respondent ap-
proved the proposed course of action. In January 1939 the respond-
ent acquired the Hamburg plant and all other assets of Hamburg
Manufacturing Company, and on February 10, 1939, Hamburg Man-
ufacturing Company was dissolved. The record shows that for the
year 1938 a loss of $49,000 was sustained by the respondent on the
operations of the Detroit plant. The respondent attributed this loss
to general unfavorable business -conditions, labor costs, high taxes in
Detroit, and the unsatisfactory physical lay-out of the Detroit plant,
and following July 12, 1938, favored selling or leasing the Detroit
plant whenever such sale or lease could be effected at a fair price,
and moving the remainder of its manufacturing operations to Ham-
burg or some other community similarly situated.
On March 8, 1939, the respondent notified the Union of a termina-
tion in 60 days of the May 4 collective labor contract, in accordance
with its terms, and at a meeting with the Union on March 23 it in
effect gave as the, reason therefor that operations in the Detroit
plant were unprofitable. The Union requested that a new col-
lective labor agreement be negotiated and offered to accept a cer-
tain wage adjustment if the respondent would submit to an audit
to substantiate the alleged loss. The respondent did not acquiesce
in this proposal. The Union also sought to negotiate concern-
ing the removal of further machinery and equipment to Ham-
burg, but the respondent refused to discuss that matter. Its
position on this subject during this and subsequent conferences with
the Union was the cause, in part, of a strike of the Detroit plant em-
ployees on May 17, 1939, which was concluded on June 7, 1939, under
a strike settlement providing for a renewal of the May 4, -1938, col-
lective labor agreement, with certain exceptions, for 3 months and
the cessation during that period of any further removal of opera-'
tions to Hamburg. On August 17, 1939, at a meeting between the
respondent and the Union called for the purposes, of discussing a
reduction in the wages of Detroit plant employees, the respondent
BROWN-McLAREN MANUFACTURING COMPANY 1005
informed the Union that it proposed to shut down the Detroit plant
and remove all manufacturing operations to Hamburg, for the rea-
son-that it was unable to operate at a profit in Detroit.30 The re-
spondent further stated that a wage reduction for the Detroit plant
employees could not meet the situation. When Hollway, the shop
chairman of the Union, asked Heath whether the respondent would
assign the remaining Detroit plant employees to work at the Ham-
burg plant when the Detroit plant was shut down, Heath replied,
"We haven't refused to." On September 11, 1939, the Detroit plant
was closed, and all remaining manufacturing operations were re-
moved to Hamburg. In connection therewith the respondent posted
a notice at the plant stating that because of high manufacturing
costs and taxes it was compelled "to seek a more economical location
to continue in business." It advised those employees who desired
"to continue" with the respondent at the Hamburg plant to make
application for such work. Of the 61 employees in the Detroit plant
at the time of the shut-down, 14 thereafter obtained employment at
the Hamburg plant. The record also shows that at the time of the
hearing some 19 other production employees formerly employed at
the Detroit plant were at work in the Hamburg plant.31 However,
substantially all those who obtained such employment were skilled
workers; there was then a dearth of available skilled workers in the
vicinity of Hamburg. The remainder of the production employees
at the Hamburg plant at the time of the hearing, numbering ap-
proximately 113, were residents' of Hamburg or nearby towns and
villages.
The complaint, as amended, alleges in substance that on or about
November 1, 1937, and at specified and other times thereafter, the
respondent refused to bargain collectively with the Union, par-
ticularly concerning the transfer of operations from the Detroit
to the Hamburg plant and the assignment to work and employment
in the Hamburg plant of the laid-off Detroit plant employees.
In so far as the above-mentioned conferences and negotiations
between the respondent and the Union related to the removal under
subcontract, or the transfer, of operations from the Detroit to the
Hamburg plant, we find no action or conduct on the respondent's
part constituting a refusal to bargain collectively, within the mean-
ing of Section 8 (5) of the Act. As above set forth, the increase
in wages of Detroit plant employees occasioned by the collective
labor contract of March 3, 1937, and the Union's unwillingness to
° The record shows that for the first 9 months of 1939 a loss of $43,000 was sustained
by the respondent on its operations.
8' The record shows that approximately 20 additional persons formerly employed at the
Detroit plant were then at work in the Hamburg plant. These persons , however, were
not within the bargaining unit above found appropriate.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acquiesce in a modification of the contract, contributed substantially
toward bringing about a situation in which the respondent no longer
was able to produce for one of its principal customers, Sears, Roe-
buck & Company, except at a continuing loss. We are satisfied that
the arrangements made by the respondent on September 21, 1937,
for the removal or transfer to another plant of the second operation
work on goods manufactured for Sears, Roebuck & Company, did
not result from any design or intention to avoid collective bargain-
ing with or discourage membership in the Union, but from a desire
to diminish or avoid loss by having the work in question performed
at a lower labor cost. While, as stated above, on and after November
8, 1937, the respondent took the position that the removal or trans-
fer of the second operation work on goods manufactured for Sears.
Roebuck & Company was not open to negotiation, it is shown, as
already stated, that from March to September 1937, a period of
6 months, the respondent for the purpose of diminishing or eliminat-
ing its loss on goods sold Sears, Roebuck & Company repeatedly
sought of the Union a modification in the provision of the March
3, 1937, contract relating to the wages of employees engaged in
second operation work on these goods; that the respondent apprised
the Union that it was sustaining and would continue to sustain
a loss in producing these goods unless the wages of these employees
were reduced, and cautioned that it might be unable otherwise to
sell goods in the future to that customer; that the Union refused
to grant any such modification; that to diminish or avoid such loss
the respondent on September 21, 1937, set about to provide for the
removal or transfer of the second operation work in question to a
plant at Hamburg where labor costs on such work could be lower;
and that by November 8, 1937, the respondent, along with -other
persons, had committed itself substantially to the removal or transfer
to the Hamburg plant of the second operation work.32 ' We think
it was within the reasonable contemplation of the parties at the time
the Union refused a modification in the wage provision that the
respondent might subcontract or transfer the second operation work
in question.33 Whatever duty the respondent had prior to September
21, 1937, to bargain with the Union for a wage reduction as a means
of avoiding the necessity for such subcontracting or transfer, was
discharged by the course of negotiations prior to September 21,
u As stated above, prior to November 8, 1937 , Hamburg Manufacturing Company was
organized , the site for the Hamburg plant was acquired, and erection of the Hamburg
plant was begun.
11 In addition to the facts already stated , it was shown that manufacturers ' of products
similar to those produced by the respondent , whose plants were located outside of Detroit
in communities near that city, were then paying substantially lower wages to their em-
ployees ; and that because of this fact a number of the respondent's competitors in
Detroit were moving their plants to locations adjacent to Detroit.
BROWN-McLAREN MANUFACTURING COMPANY 1007
1937. By November 8 the respondent had placed itself in a position
where a wage reduction no longer was a practicable alternative to
its removing or transferring such work, and there is no showing
that this situation was changed at the time of the Union's request
then or thereafter to negotiate the matter. As regards the sub-
sequent removal or transfer from the Detroit plant of work and
operations for customers other than Sears, Roebuck & Company, we
are of the opinion that such removal or transfer likewise resulted
from a desire to diminish or avoid loss by having the work per-
formed at a lower labor cost, and that the removal of such operations
was incidental to, and a direct result of the situation which-impelled
the removal or transfer of the second operation work on goods sold
Sears, Roebuck & Company.34 Under these circumstances the
respondent's refusal on and after November 8, 1937, to negotiate
concerning the transfer or removal of operations from the Detroit
to the Hamburg plant did not constitute a refusal to bargain
collectively.
The refusals of the respondent on various occasions, particularly
in November 1937, and on January 24, March 22, and June 8, 1938,
to consider or enter into' negotiations with the Union respecting
the assignment to work and employment in the Hamburg plant of
the laid-off Detroit plant employees, stand on another footing. We
find that these refusals, and each of them, constituted refusals to
bargain collectively, within the meaning of Section 8 (5). The
respondent was not justified in refusing, nor could it then justify its
refusals, to consider or negotiate ' with the Union the matter of em-
ploying at Hamburg employees who would be or were laid off inci-
dent to the removal of manufacturing operations, on the ground that
the Hamburg plant was owned by a separate corporation. The
evidence establishes that throughout the period of its existence from
October 1, 1937, until February 10, 1939, Hamburg Manufacturing
Company was but the alter ego or instrumentality of the respondent,
formed and operated through Heath, for the benefit of the respond-
ent and directed and controlled by it; that such matters as the em-
ployment of persons at the Hamburg plant and the labor relations
in general of Hamburg Manufacturing Company were under the
direction and control of the respondent.35 We entertain no doubt
a+ As noted above, the respondent sustained a loss of $49 ,000 on the operations of the
Detroit plant in 1938, and a loss of $43 ,000 on its operations for the first 9 months of 1939.
15 The record discloses the following among other pertinent facts : From the Incorpora-
tion of Hamburg Manufacturing Company on October 1, 1937, until its dissolution on
February 10, 1939, Heath , the respondent 's secretary and one of its directors and stock-
holders, was the president , a director, and sole stockholder of Hamburg Manufacturing
Company. The remaining officers and directors of Hamburg Manufacturing Company
prior to January 7, 1938, were Brown, the president and a director and stockholder of
the respondent , and MacArthur, an employee of the respondent ; after January 7, 1938,
they were two employees of the respondent , McLelland and Schmitt . The officers and
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it is well within the power and discretion of the respondent to
reach an agreement with the Union relating to the transfer to and
employment at the Hamburg plant of Detroit plant employees.
However, some contention seems to be made that the matter of trans-
ferring and employing Detroit plant employees was in any event
beyond the power of the respondent to negotiate because of an oral
"understanding" had in August 1937 by Heath with certain resi-
dents of Hamburg, which contemplated a donation by certain Ham-
burg townsfolk of the land site on which the Hamburg plant was
to be erected and a preferment, where possible, in employment at
that plant of persons residing in and about Hamburg. We do not
think that this understanding was of such character as to preclude
collective bargaining with the Union on the matter of employment
at the Hamburg plant. It imposed no legal obligation on Heath,
the respondent, or Hamburg Manufacturing Company to ' prefer
Hamburg workers; it constituted merely a non-contractual assump-
tion concerning employment policy at the Hamburg plant. More-
over, even were the understanding contractual, the respondent
nevertheless was obliged' under the Act to consider and discuss the
situation with the Union.
Although we have found that by virtue of its negotiations with the
Union prior to September 21, 1937, and its steps taken as a result
thereof, the respondent was relieved from negotiating with the Union
in regard to the removal or transfer of 'operations from the Detroit
, o the Hamburg plant, the respondent was not relieved from bar-
gaining collectively with the Union about the transfer to and em-
ployment at the Hamburg plant of those Detroit plant employees
directors of the respondent owned a majority of its stock . The assets of Hamburg
Manufacturing Company consisted of paid-in capital of $1,000 and $36,500 in loans fur-
nished by Heath; $25,000 in loans furnished by the respondent; machinery and equip-
ment leased by the respondent for a rental equal to current depreciation ; and a plant
site donated by Hamburg townsfolk . Upon acquisition in January 1939 by the respondent
of all the assets of Hamburg Manufacturing Company, Heath received only the par value
of his stock , $ 1,000; his loan of $36,500 was assumed by the respondent . As above stated,
the Hamburg venture originated in the desire of the respondent to reduce the cost on goods
sold Sears , Roebuck & Company . Prior to the formation of Hamburg Manufacturing
Company, the respondent was given an option to purchase its plant , and as early as May
16, 1938, its directors talked about actual acquisition of the Hamburg plant. On July
12, 1938, they began steps looking toward ' that end. The Hamburg plant operated func-
tionally as an adjunct of the respondent . Substantially all manufacturing operations
there performed were upon jobs for the respondent 's customers , and for the most part
were processes requiring other processes at the Detroit plant Heath divided his working
time between the respondent and Hamburg Manufacturing Company. He acted as sales
manager for both companies . His total salary for his services for both corporations
remained the same as that previously paid for services rendered the respondent alone, and
was paid by the respondent , although one-half thereof was charged to the account of
Hamburg Manufacturing Company. Prior to December 1937 Heath and Plant Superin-
tendent Kopsch were in charge of labor relations at the Detroit plant. About that
month Heath assumed charge of labor relations at the Hamburg plant and in July 1938
was joined in it by Kopsch . After July 1938 Kopsch hired and discharged employees at
the Hamburg plant.
BROWN-McLAREN MANUFACTURING COMPANY, 1009
who would be or were laid off incident to the removal or transfer of
such operations. The actual erection of the Hamburg plant, its con-
trol by the respondent and the availability of employment there, albeit
at wages affected by local conditions, created a new situation changing
the status of the controversy between the respondent and the Union
and requiring bargaining on the matter of transferring to the Hamburg
plant employees who otherwise would lose their jobs as a result of the
removal of such operations.36 Although the Union in November 1937,
before any production workers were hired at Hamburg, and at various
times thereafter, sought to bargain with the respondent for the trans-
fer to and employment in the Hamburg plant of Detroit plant em-
ployees who would otherwise be laid off as a result of the removal of
Work and manufacturing operations, the respondent repeatedly refused
to bargain collectively about the matter.37
We find that the respondent at various times in 1937, 1938, 1939,
especially in November 1937 and on January 24, March 22, and June
8, 1938, and at each such times refused to bargain collectively with
the Union as the statutory representative of the Detroit plant em-
ployees, within the meaning of Section 8 (5) of the Act; and that
by such refusals, and each of them, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
C. The alleged discrimination in regard to hire and tenure of
employment
The complaint, as amended, alleges in substance that the re-
spondent removed its manufacturing operations from, and laid off
employees at, the Detroit plant in furtherance of a design to avoid
36 Cf. Jeffery -DeWitt Insulator Co. v. N. L. R. B ., 91 F. (2d ) 134 (C. C. A. 4), enf'g
Matter of Jeffery-DeWitt Insulator Company and Local No. 455 , United Brick and Clay
Workers of America , 1 N. L. R . B. 618.
37 As stated above, in January 1939 the respondent acquired the Hamburg plant and
all other assets of Hamburg Manufacturing Company and on August 17, 1939, when
the respondent announced that it proposed to shut down the Detroit plant and remove
all manufacturing operations to Hamburg , Heath, in response to Hollway 's question
whether the respondent would assign the remaining Detroit plant employees to work at
the Hamburg plant, replied , "We haven 't refused to " We are satisfied that the respond-
ent's previous unequivocal refusals to bargain concerning the assignment of Detroit em-
ployees to work at Hamburg rendered unnecessary the making of a specific request by
the Union to bargain concerning the transfer of the Detroit employees then working
to work at Hamburg, and that Heath 's equivocal statement did not indicate any willingness
by the respondent to bargain collectively in good faith concerning this matter , in view of
the respondent 's previous unequivocal refusals and the respondent 's employment policy
of preferring workers residing in and about Hamburg, in accordance with the above-
mentioned understanding of Heath with the Hamburg townsfolk . Furthermore, it is
plain that any willingness to bargain concerning the assignment to work at Hamburg
of the small number of persons at the Detroit plant could not detract from or cure
the respondent 's unequivocal refusals to negotiate concerning the assignment to work
at Hamourg of employees laid off before August 1939 in consequence of the previous
removal or transfer of operations from Detroit to Hamburg.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining and discourage membership in the Union, and
that in connection therewith the respondent locked out and dis-
charged its Detroit plant employees because they were members of
the Union.
In view of the circumstances set forth above,38 including the exigen-
cies of the situation in which the respondent found itself following
an unsuccessful attempt. for 6 months to reduce losses on Sears, Roe-
buck & Company operations through negotiations with the Union,
the respondent's continuing business losses in 1938 and 1939, and its
entering into successive labor contracts with the Union, we are satis-
fied, and we find, as already specifically found above, that the removal
or transfer of all manufacturing operations and work from the Detroit
to the Hamburg plant, as well as the closing of the Detroit plant,
resulted from no design or intention to avoid collective bargaining
with or discourage membership in the Union, but from the desire of
the respondent to carry on its manufacturing operations in a locality
where lower labor costs and other expenses would enable it to de-
crease, if not eliminate, its continuing business losses.
Inasmuch as the removal and transfer of work and operations
from- the Detroit to the Hamburg plant, and the closing of the
Detroit plant, were for economic reasons and not in violation of the
Act, the attendant lay-offs of the Detroit plant employees who did
not obtain work at Hamburg cannot be held to constitute a lock-
out of such employees because of their membership or activities in
the Union, or otherwise a discrimination by the respondent in regard
to their hire and tenure of employment to discourage membership
and activities in the Union, unless the respondent's unwillingness
to transfer to and employ at Hamburg such employees, as manifested
by its refusals to bargain collectively and the employment policy
followed at Hamburg, constituted such discrimination. In this
connection it is shown that at no time, either before or after Sep-
tember 21, 1937, did the Union grant a reduction in wages paid the
Detroit plant employees engaged in second operation work; that the
respondent was able to and did hire residents of Hamburg and
vicinity for such work in the Hamburg plant at substantially lower
wages than those paid at Detroit; that in pursuance of Heath's
understanding with the Hamburg townsfolk the respondent followed
a policy at the Hamburg plant of preferring in employment, where
possible, persons residing in and about Hamburg; and that in hiring
skilled workers, of whom there was a dearth in the vicinity of Ham-
burg, the respondent employed a substantial number of former De-
troit plant employees, nearly all of whom were union members and
three of whom were shop stewards of the Union at the Detroit plant.
38 See Section III B , supra.
BROWN-McLAREN MANUFACTURING COMPANY 1011
Under these circumstances, and upon the entire record, we are satis-
fied that the refusal or failure to transfer and employ the laid-off
Detroit plant employees to or at Hamburg was for economic reasons
and not motivated by anti-union considerations.39
We find that the respondent did not discharge or lock out its
Detroit plant employees, or any of them, or hire or authorize the
hiring of persons other than them at the Hamburg plant in
furtherance of a design to avoid collective bargaining with or to
discourage membership in the Union; that the respondent did not
discharge or lock out its Detroit plant employees because they were
members of the Union ; and that the respondent, by its lay-offs of
the Detroit plant employees, or any of them, and by its refusals or
unwillingness to employ them, or any of them, at the Hamburg
plant, did not discriminate in regard to hire or tenure of employment
to discourage membership in the Union, or interfere with, restrain,
or coerce its employees in the exercise of rights guaranteed by Section
7 of the Act.
D. Interference, restraint, and coercion in connection with the
individual employment contracts at the Hamburg plant
All persons employed at the Hamburg plant prior to the dissolu-
tion of Hamburg Manufacturing Company were required by that
company, and after that time by the respondent, to execute indi-
vidually as a condition of their being and remaining employed at the
plant certain instruments entitled "Conditions of Employment," the,
provisions whereof are set forth below in the margin 40 Under Sec-
0 This does not mean that the respondent upon the basis of its experience could refuse
to bargain collectively with the Union about transferring to or employing at the Hamburg
plant the Detroit plant employees . See Section III B, supra.
CONDITIONS OF EMPLOYMENT
40 (1) I agree that I will not go on strike without giving the Company at least fifteen
(15) days' notice in writing, setting forth my grievances and demands and further that
I will not seize Company property or occupy Company property without authority of
the Company; and that I will perform my duties in an efficient manner and not indulge,
singly or jointly, with others in "slow-down" or "pace-making" and will not interfere
with any other employees of the Company in the performance of their IN ork , and that
if I do, the commission of any of these acts will be an agreed cause of discharge
(2) I will not molest in any manner, or use intimidation or coercion upon any em-
ployees of the Company in order to force them to join or refrain from joining or becoming
members of any union, association or organization.
( 3) I will neither advocate nor participate in any coercion or any threats of bodily
harm or damage to any employee, the property of any employee, or the Company, or in
any violence or unlawful act to enforce the settlement of any differences that may arise
between this Company and me, or my fellow workmen.
(4) I agree not to commit sabotage on the property of the Company , Its equipment,
tools and screw machine parts, and will report to the Company any act of sabotage or
any known threat of sabotage.
I agree In the event that I shall commit any of the acts enumerated in paragraphs (1),
(2), (3) and (4) that the commission of said acts will be good and sufficient cause for dis-
charge, and I further agree that in the event any of the said acts are committed by me,
to forfeit the sum of Fifteen Dollars ($15 00) which Is to be deducted from my wage
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 8 (1) of the Act employees enjoy the right to strike and
engage in other concerted activities defined in Section 7, without being
compelled individually by the employer to restrict or waive such
right as a condition of hire or tenure of employment, or otherwise.41
The respondent's fettering of its employees' right to strike by em-
ployer-prescribed limitations* of notice and employer-required sub-
mission of individual statements of grievances and demands by
individual employees -directly contravened this section. Moreover,
we view the instrument in its entirety and the respondent's require-
ment for employee execution and maintenance of such instrument as
essentially anti-union in character. An employer-created instrument
which announces causes for discharge in the field of union or organi-
zational activity, associates illegal acts with unions or union activity,
prohibits some legitimate union and organizational activity along
with activity possibly or in fact unlawful, and proscribes concerted
or individual action in language which leaves doubt as to whether
legitimate union efforts are covered thereby,42 is an instrument which,
when tendered for execution to an applicant for employment, can
have but one meaning to him, that the employer is opposed in general
to union organizational activity. This is especially true where,
as here, the employees are not hired for a term, and in consequence,
check at the termination of my employment and I hereby authorize the Company to make
such deduction from the wage check In the event of my discharge as the result of the
breach of any of the said conditions of employment It is understood that the $15.00
so forfeited by me will be placed in the employees ' welfare fund to be distributed under
the rules of said welfare fund for the benefit of the employees of the Hamburg Manufactur-
ing Company [Brown-McLaren Manufacturing Company].
It is further understood that the Company is not limited to the above reasons to
terminate my employment and that I agree to abide by the regulations set forth by the
Company, as it may be changed from time to time, and that willful infraction of any
of the Company 's rules is just cause for discharge or other disciplinary action as the
Company may deem fitting , but it is expressly understood that I agree to forfeit $15.00
only in the event I violate any of the conditions set forth in paragraphs ( 1), (2), (3)
and (4 ) above.
It is understood and agreed that if any of the terms of this agreement should be
held invalid under the laws and statutes of the State of Michigan or the United States
of America , the remaining terms hereof shall remain in full force and effect.
I hereby voluntarily accept these and all other conditions of employment and agree to
abide by them sincerely.
41 While limitation upon the right to strike may be unobjectionable when reached as a
result of collective bargaining with the representatives of the employees in an appropriate
unit, the imposition of such a limitation upon individual employees so interferes with
their right to engage in concerted activities as to render futile the exercise of the right
to organize and to bargain . See National Labor Relations Board v. National Licorice Co.,
309-U. S. 350 , aff'g as mod 104 F. ( 2d) 655 (C C A 2), enf'g as mod. Matter o f National
Licorice Company and Bakery and Confectionery Workers International Union of America,
Local Union 405, Greater New York and Vicinity , 7 N. L. Il B. 537.
42 Note the following language in the instrument in question :
[the employee ] . . will not Interfere with any other employees of the Company in the
perofrmance of their work . . . will not molest in any manner , or use intimidation or
coercion upon any employees of the Company in order to force them to join . . .
becoming members of any union , association or organization . . . will not . . . par-
ticipate in any coercion . . . to enforce the settlement of any differences that may arise
between this Company and .. . my fellow workmen.
BROWN-McLAREN MANUFACTURING COMPANY 1013
the employer may discharge them for any or no cause, provided only
that the discharge does not violate the Act.
We find that the respondent, by requiring personally and through
its alter ego the execution of the "Conditions of Employment" by
applicants for employment and employees; by maintaining such in-
struments in force or operating under them; by requiring its em-
ployees as a condition of employment to restrict, in the manner
therein provided, their right to strike and engage in other lawful
concerted activities for purposes of collective bargaining or other
,mutual aid or protection; and by each of such acts, interfered with,
restrained, and coerced its employees in the exercise of rights guaran-
teed by the Act.
E. The alleged discrimination in regard to Gower's employment
On December 21, 1937, the Union conferred with the respondent
regarding the reinstatement of Ralph Gower, an employee in the
Detroit plant, who had been discharged the preceding day, for reasons
not clearly disclosed by the record 43 The respondent was represented
at this meeting by its president, its treasurer, and Plant Superin-
tendent Kopsch. These representatives at first took the position that
Gower had been properly discharged and that the respondent under
no condition would reinstate him. When this deadlock was reached
Kopsch whispered the suggestion to the respondent's president that
Gower be reinstated if he resign as chief shop steward of the Union.
In accordance\ with Kopsch's suggestion the respondent's president
offered to reinstate Gower, provided he would give up his position
as chief shop steward. The Union replied that acceptance of such
a proposal was against union policy, that the Union could not per-
mit the respondent to affect the selection of union representatives.
However, the respondent's representatives adhered to their position,
and an agreement was then reached by the Union and the respondent
which provided that Gower would be suspended from all union
duties pending the next regular meeting of the Union at which time
and place a final decision by the Union on the respondent's proposal
would be made.
On December 21, 1937, following the above-mentioned conference;
Gower returned to work and refrained from acting as chief shop
steward. On December 27, 1937, the Union filed a charge with the
Board alleging in part that the respondent had engaged in unfair
labor practices by rehiring Gower "on condition that he give up his
19 One of the union representatives present at this meeting testified that the respondent's
president, who personally discharged Gower, attributed the discharge to alleged idling at
work by Gower and to the publication of certain allegedly derogatory remarks concern-
ing the management which appeared in a newspaper edited by Gower.
451269-42-vol 34-65
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duties in the union as chief shop steward." On or about January 8,
1938, at the next regular meeting of the Union, the matter of Gower's
resignation as chief shop steward was presented to the entire union
membership for consideration.' The membership at first refused to
approve acceptance of the respondent's proposal, but did so after
being informed that steps had been taken to protect Gower through
the filing of the charge with the Board. At the meeting Gower
resigned as chief shop steward, "for the benefit of the people in the
shop, to keep harmony there."
As the result of his resignation as chief shop steward Gower lost
the preferred seniority status which shop stewards were granted
under the collective contracts between the Union and the respondent.
This loss of seniority resulted in several lay-offs of Gower between
December 21, 1937, and June 2, 1939, when Gower applied for and
was granted a 2-month leave of absence from work by the respondent.
Gower never thereafter made application for work.
In his Intermediate Report the Trial Examiner found "that the
reinstatement [of Gower] was the result of a compromise" and rec-
ommended that the allegations of the complaint relating to Gower
be dismissed. No exceptions were filed to said finding and recom-
mendation. Accordingly, we accept the recommendation of the Trial
Examiner and shall dismiss the complaint as to Gower.
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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices , we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent on various occasions refused
to bargain collectively regarding the requests made by the statutory
representative of its employees to transfer to and employ the laid-off
Detroit employees in the Hamburg plant. In view of the cessation
of operations at the Detroit plant and our finding that the respondent
did not discriminate against the Detroit plant employees by dismiss-
ing them or refusing to employ them at the Hamburg plant, and in
BROWN-McLAREN MANUFACTURING COMPANY 1015
the absence of any claim or'showing that the Union has been desig-
nated by a majority of employees at the Hamburg plant, we shall
not order the respondent to bargain collectively with the Union.
However, we shall order the respondent to take certain affirmative
action to remedy the effects of its illegal refusals to bargain concern-
ing the matter of transferring to and employing at the Hamburg
plant, employees at the Detroit plant who would be and were laid
off as a result of the removal of operations to the Detroit plant.
The respondent's refusals to consider the requests of the Union con-
cerning this matter removed from the Detroit plant employees all
possibility which was theirs of obtaining through the procedures of
collective bargaining, work and employment at the Hamburg plant.
It is reasonable to suppose that had the procedures been utilized some
basis of agreement would have been found for the employment of
Detroit plant employees in the available positions at Hamburg.44
In any event, it does not lie with the respondent to urge here that
had it not violated its duty under the Act, the probabilities are that
no agreement for employment at Hamburg would have been made 45
We are unable, for reasons already stated, to direct negotiations by
the respondent with the Union as the statutory representative and
in that manner to restore to the Detroit employees their right to
collective bargaining by the respondent on the matter of employment
at the Hamburg plant. Further, the respondent by filling the avail-
able positions at Hamburg has removed the subject of Hamburg em-
ployment from the field of collective bargaining or at any rate has
substantially changed the basis upon which such negotiations could
proceed. Therefore, to remedy the illegal denial to the Detroit plant
employees of collective bargaining by the respondent and the conse-
quent loss of opportunity to obtain employment at the Hamburg plant
through such bargaining, we shall order the respondent to place upon
"In Jeffery-DeWitt Insulator Company, a corporation v N. L. R B, 91 F. (2d) 134
(C. C. A. 4), cert . denied 302 U. S. 731, enf'g Matter of Jeffery-DeWitt Insulator Company
and Local No. 455, United Brick and Clay lhorlers of America, 1 N. L. R. B. 618, the
United States Circuit Court of Appeals for the Fourth Circuit said
It is true that the Act does not regmie the parties to agree but merely to negotiate
with each other; but it is based upon the idea that negotiations honestly entered
into will generally result in the settlement of differences , and commands negotiation
for that reason Statistics show the reasonableness of the hope upon which it
proceeds. ..
41 In-N L R. B v Remington Rand, Inc., et al ., 94 F. (2d) 862 (C. C A. 2), enf'g
as mod Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of
the District Council Office Equipment Workers, 2 N. L R B. 626, the United States Circuit
Court of Appeals for the Second Circuit said:
It is of course possible that the parties might have split over wages, or over the
Elmira plant, even if the respondent had negotiated with the Joint Board [the union
involved]. But since the refusal was at least one cause of the strike, and was a
tort-a "subtraction"-it rested upon the tortfeasor to disentangle the consequences
for which it was chargeable from those from which it was immune.
See also N. L. R. B. v. Stackpole Carbon Co , 105 F. (2d) 167, (C. C. A. 6), enf'g as
mod., Matter of Stackpole Carbon Company and United Electrical and Radio Workers of
America, Local No. 502, 6 N. L. R . B. 171.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a preferential list all persons, and each of them, within the collective
bargaining unit heretofore found to be appropriate '411 who were em-
ployed by the respondent at its Detroit plant prior to September 11,_
1939, who did not 'thereafter obtain employment at the Hamburg
plant, and whose work at the Detroit plant ceased as a consequence
of the removal under subcontract or otherwise of work or of manu-
facturing operations from the Detroit to the Hamburg plant, and the
closing of the Detroit plant, and thereafter offer such persons em-
ployment in any position for which they are qualified as such work
becomes available, before any other persons are hired for such work,
and following such system of seniority or other lawful procedure
as has heretofore been applied at the Hamburg plant in placing em-
ployees at work.47 All persons named in Appendix A attached hereto
and made part hereof, are prima facie within the class' to be placed
upon a preferential list and offered employment as set forth above,
and may so be presumed to be in the class in connection with com-
pliance procedures .411 ,
In aid of our order we shall require the respondent to make such
persons whole for any loss of pay they, or any of them, will have
suffered by reason of a refusal by the respondent, within 5 days after
the date of our order, to place them, or any of them, upon a prefer-
ential list or offer them employment in the manner set forth above,
by payment to each such employee of a sum of money equal to that
which he normally would have earned as wages from the date of such
refusal to the date he is placed upon a preferential list or offered
98 See Section III B, supra.
47 Compare Matter of Jeffery-DeWitt Insulator Company and Local No. 1,55. United
Brick and Clay Workers of America, 1 N L. R. B. 618, enf'd The Jeffery-DeWitt Insulator
Company v . N L R. B, 91 F. (2d) 134, (C. C. A. 4), cert. denied 302 U S. 731.
48 At the hearing counsel for the Board, with the consent of counsel for the respondent,
introduced in evidence as Board Exhibit 39, a list of all employees of the Detroit plant
who were on the company pay roll at any time during 1937, and, in consequence , during
1938 and 1939 , together with a statement as to each employee of his or her subsequent
employment history with the respondent. (See Section III B, 2, supra .) Counsel for
the respondent identified Board Exhibit 39, as "a complete list of all the employees who
were on the pay roll at any time during 1937 in the Detroit plant , together with their
subsequent history ; that is, what time they were laid off , if any ; what happened when
they were finally laid off ; any other disposition , such as the death of the person that
we happened to hear about ; we have made notations . Also where the employee left of
his own accord , or, was discharged as we claim for cause , there is a notation ." It ap-
pears from this exhibit, and we find , that the Detroit plant employees whose names are
listed in Appendix A, attached hereto, were employees in the Detroit plant on November
1, 1937 , and were laid off after that date, that is, were merely laid off and not discharged
for cause ; nor are they persons who had quit or died. We presume that all those so
listed were laid off because of the decline in and final cessation of operations attendant
upon the removal or transfer of operations to the Hamburg plant and the closing of
the Detroit plant. We have taken November 1, 1937 , as the operative date because on
that day the respondent announced the making of arrangements for the first removal
of operations , that is, the removal in connection with production for Sears , Roebuck &
Company. Appendix A includes the names of five persons employed in the Detroit
plant at the time of the hearing , but who we have assumed have since been laid off in
connection with the leasing of the Detroit plant, mentioned in the respondent 's brief.
BROWN-McLAREN MANUFACTURING COMPANY 1017
employment in the manner set forth above, less his net earnings
during said period.49
We found that the respondent, personally and through its alter ego
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed by the Act, among other things by requiring all
persons employed at the Hamburg plant to execute individually and
as a condition of their being and remaining employed at the Ham-
burg plant, the so-called "Conditions of Employment"; by main-
taining such instruments in force or operating under them; and by
requiring its employees as a condition of employment to restrict, in
the manner therein provided their right to strike and engage in other
lawful concerted activities for purposes of collective bargaining or
other mutual aid or protection. It is plain that the execution, main-
tenance, and enforcement of such instruments, because of their spe-
cific provision and general character, constitute a continuing obstacle
to full enjoyment by the respondent's employees of their rights under
the Act. To remove such obstacle and means, and avoid the conse-
quence of such practices, we shall require the respondent to cease
and desist from requiring its employees to execute individually and
as a condition of their being and remaining employed the so-called
"Conditions of Employment"; from maintaining such instruments in
force or operating. under them; and from requiring its employees as
a condition of their being or remaining employed that they restrict, in
the manner therein provided, their right to strike and engage in other
lawful concerted activities for purposes of collective bargaining or
other mutual aid or protection. We also shall require the respondent
to inform personally in writing each of its employees who has signed
the "Conditions of Employment" that the respondent will no longer
require its employees to execute such instruments, or any similar in-
strument, or maintain such instruments in force or operate under
them. Nothing in the order, however, shall be taken to prejudice the
assertion by the employees of any legal rights they may have under
such instruments.
4 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the- respondent , which would not have been incurred but for- his un-
lawful discharge and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies
received for work performed upon Federal , State, county , or other work-relief projects
shall be considered as earnings . See Republic Steel Corporation v. National Labor Rela-
tions Board, 311 U. S. 7.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS of LAW
1. Brown-McLaren Branch of West Side Local 174, International
Union, United Automobile Workers of America, is a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
2. The production employees at the Detroit plant of the' respondent
on an hourly or piece-rate basis, excluding supervisory employees
with the power to hire and discharge, and clerical or engineering
employees, at all times material herein constituted a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. Brown-McLaren Branch of West Side Local 174, International
Union, United Automobile Workers of America, was at all times
material herein, and, specifically, in November 1937 and on January
24, March 22, and June 8, 1938, the exclusive representative of all
employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing at various times in 1937, 1938, 1939, and thereafter,
especially in November and on January 24, March 22, and June 8,
1938, and at each such times, to bargain collectively with Brown-
McLaren Branch of West Side Local 174, International Union, United
Automobile Workers of America, as the exclusive representative of
employees in such unit, the respondent engaged in unfair labor prac-
tices, within the meaning of Section 8 (5) of the Act.
5. 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.
6. The aforesaid unfair labor practices, and each of them, are unfair
labor practices affecting commerce, within the meaning of Section 2
(6) and (7) of the Act.
7. The respondent did not transfer operations from the Detroit to
the Hamburg plant, discharge or lock out Detroit plant employees,
or any of them, or hire or authorize the hiring of persons other than
them at the Hamburg plant, in furtherance of a design to avoid col-
lective bargaining with or to discourage membership in the Union;
thereby engaging in unfair labor practices within Section 8 (1),
(3), or (5) of the Act.
BROWN-McLAREN MANUFACTURING COMPANY 1019
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-
ent, Brown-McLaren Manufacturing Company, Detroit and Ham-
burg, Michigan, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Requiring its employees, individually, and as a condition of
their being or remaining employed, or otherwise, to execute the so-
called "Conditions of Employment," or any similar instrument, and
maintaining such instruments in force or operating under them;
(b) Requiring its employees, individually, as a condition of their
being or remaining employed, or otherwise, to relinquish or in any
manner restrict their right to strike ;
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the 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) Place upon a preferential list all persons, and each of them,
who prior to September 11, 1939, were employed at its plant in
Detroit, Michigan, on an hourly or piece-rate basis, excluding super-
visory employees with the power to hire and discharge, and ex-
cluding clerical or engineering employees, who did not thereafter
obtain employment at the plant at Hamburg, Michigan, now known
as the Hamburg Division of Brown-McLaren Manufacturing Com-
pany, and whose work at the Detroit plant ceased as a consequence of
the removal under subcontract or otherwise of work or of manufac-
turing operations from said Detroit plant to the said Hamburg plant
or of the closing of said Detroit plant on September 11, 1939, (a
prima facie list of the names of all such persons being set forth in
Appendix A, attached hereto and made part hereof) ,60 and there-
after offer such persons employment in any position for which they
are qualified as such work becomes available, before any other per-
sons are hired for such work, and following such system of seniority
or other lawful procedure as has heretofore been applied at the Ham-
burg plant in placing employees at work;
(b) Make whole the persons who, in accordance with paragraph
2 (a) of this Order, are to be placed upon a preferential list and
sa See the section entitled "The remedy."
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offered employment at the Hamburg plant in the manner set forth
above, for any loss of pay they, or any of them, will have suffered
by reason of a refusal by the respondent, within 5 days after the date
of our Order, to place them, or any of them, upon a preferential list
or offer them employment in the manner set forth above, by pay-
ment to each such employee a sum of money equal to that which he
normally would have earned as wages from the date of such refusal
to the date he is placed upon a preferential list or offered employ-
ment as required by the Order, less his net earnings 61 during said
period ;
(c) Inform personally in writing each of its employees who has
signed the "Conditions of Employment" that the respondent will no
longer require its employees to execute such instruments, or any simi-
lar instrument, or maintain such instruments in force or operate
under them; but that this is without prejudice to the assertion by
the employees of any legal rights they may have acquired under such
instruments ;
(d) Post immediately in conspicuous places at the respondent's
Hamburg plant, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), and
(c) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a), (b), and (c) of this Order;
and (3) that the respondent will no longer require its employees to
execute the "Conditions of Employment," or any similar instrument
or maintain such instruments in force or operate under them; but
that this is without prejudice to the assertion by the employees of
any legal rights they may have acquired under such instruments;
(e) Notify the Regional Director for the Seventh Region, in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, be,
and the same hereby is, dismissed in so far as-it alleges that the re-
spondent engaged in the following unfair labor practices : transferred
operations from the Detroit to the Hamburg plant, discharged-or
locked out its Detroit plant employees, or any of them, or hired
or authorized the hiring of persons other than them at the Hamburg
plant, in furtherance of a design to avoid collective bargaining with
or to discourage membership in Brown-MeLaren Branch of West
Side Local 174, International Union, United Automobile Workers of
America; discharged or locked out its Detroit plant employees be-
61 See footnote 49, supra.
BROWN-McLAREN MANUFACTURING COMPANY 1021
cause they were members of Brown-McLaren Branch of West Side
Local 174, International Union, United Automobile Workers of
America; and discriminated in regard to hire or tenure of employ-
ment to discourage membership in Brown-McLaren Branch of West
Side Local 174, International Union, United Automobile Workers of
America, or interfered with, restrained,-or coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act, by its lay-
off of the Detroit plant employees, or any of them, including Gower,
or by its refusals or unwillingness to employ them or any of them
at the Hamburg plant. -
MR. EDWIN S . SMITH , concurring in part and dissenting in part :
I agree that the respondent has interfered with, restrained, and
coerced its employees at the Detroit and Hamburg plants and that
the respondent refused to bargain collectively with the Union. I
would also find that the respondent transferred its operations from
the Detroit to the Hamburg plant in furtherance of a design to avoid
collective bargaining with and to discourage membership in the
Union, thereby engaging in unfair labor practices within the meaning
of Section 8 (1), (3), and (5) of the Act; and that it discriminated
against Gower, within the meaning of Section 8 (1) and (3) of the
Act.
Prior to March 3, 1937, the respondent, by the acts and statements
set forth in the majority opinion, plainly manifested in an intimi-
datory fashion its opposition to self-organization by its employees in
the Union. I would find that by these acts and statements the re-
spondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. Although
shortly thereafter the respondent entered into a collective contract
with the Union, I am satisfied from the respondent's explanation of
this act, that is, that customers threatened to withdraw their orders
because of the shut-down, and from its subsequent conduct, dis-
cussed below, that the execution of said contract did not alter a
continuing course of conduct which was intended to, and did, frustrate
the Union.
While the respondent suffered substantial financial loss, particularly
on its sales contract with Sears, Roebuck & Company, in the period
following the execution of this contract, and the Union refused to
accede to the respondent's request for a reduction in wages, I am of
the opinion that the respondent's entire course of conduct neverthe-
less shows that its removal of operations on goods manufactured for
Sears, Roebuck & Company, as well as its other operations, was
motivated by a desire to avoid any dealings with the Union, rather
than an attempt in good faith to reach an accord with the Union on
the issue of wage reductions. Thus, although in August or Septem-
0
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 1937 the Union mentioned to the respondent that the respondent's
books would have to be audited before any credence could be given
to the respondent's statements concerning its loss on the Sears, Roe-
buck & Company contract, the respondent at no time submitted its
books in substantiation of its statements. I agree with the Trial
Examiner that "In view of the fact that the contract fixing wages
had been so recently entered into, the Union would have failed in its
duty owing to its members had it acquiesced in a reduction without
some reasonable showing to support management's claim." Nor did
the respondent at any time disclose to the Union that it contemplated
a step so drastic as the removal of its operations to a new plant
erected for that purpose. I believe that an employer, as part of his
duty to bargain collectively under the Act, is required to disclose
fully to the statutory representative of his employees any steps which
the employer proposes to take which will affect existing employment
relations or conditions under an outstanding collective labor con-
tract.52 In my opinion, the respondent did not fulfill its duty in
this regard by cautioning the Union that unless wages were de-
creased, it might be unable to sell its products to Sears, Roebuck &
Company, nor does the asserted fact that "it was within the reason-
able contemplation. of the parties that the respondent might sub-
contract or transfer the second operation work in question", relied
upon in the majority opinion, satisfy the respondent's duty of dis-
closure. While by November 8, 1937, the respondent, along with
other persons, had committed itself substantially to the removal or
transfer to the Hamburg plant of the second operation work, in view
of its failure to disclose such steps it cannot urge this fact as a justi-
fication for refusing the Union's offer to negotiate a reduction in
wages on the second operation work on goods sold Sears, Roebuck &
Company provided the Union's auditors first could verify from the
respondent's books the loss on sales of those goods. Even after the
Union became aware, despite the respondent's concealment, that the
respondent intended to remove its operations to Hamburg and con-
fronted the respondent with this fact, the respondent consistently and
on numerous occasions refused to negotiate with the Union con-
cerning the removal of machinery and operations from the Detroit
plant and the assignment of Detroit employees laid off in connection
therewith to work at the Hamburg plant, and disclaimed its true re-
lationship with Hamburg Manufacturing Company. Further, the
"In Wilson & Co., Inc. v. N. L. R. B., the United States Circuit Court of Appeals for
i
the Eighth Circuit said:
When an employer has reached an agreement with his employees , he is under the
further duty of bargaining collectively before making changes in existing contracts.
(Citing N. L R B. v. Sands Manufacturing Co. 306 U S. 332, 342 )
See also Matter of Gerity Whitaker Company, et at and Metal Polishers, Buffers,
Platers and Helpers International Union, et at . 33 N L. R. B 393,
BROWN-McLAREN MANUFACTURING COMPANY 1023
required signing by employees at the Hamburg plant of the so-called
"Conditions of Employment," which the Board finds to be anti-union
in character and designed to forestall collective bargaining, would
seem clearly to indicate that the respondent's action was intended to
eliminate the Union as statutory representative of its employees.
Finally, assuming, as found in the majority opinion, that an impasse
had been reached between the respondent and the Union by Sep-
tember 21, 1937, with respect to a reduction in wages on the second
operation work, it does not follow that the respondent was free, as a
means of securing a wage reduction, to rid itself of the Union as
statutory representative of its employees. Under the circumstances
disclosed by this record, I am convinced that the respondent, by
transferring its operations to Hamburg and hiring new employees
at that plant, intended to,secure lower wages by the device of elim-
inating the Union as bargaining representative. My conclusion in
this respect is corroborated by the fact that the respondent, had it
only desired to obtain lower labor cost and not to eliminate the Union,
could, in view of the assumed impasse, have reduced' wages at the
Detroit plant, since the collective contract then in effect was ter-
minable at will and in fact was thereafter terminated by the respond-
ent upon this basis. -
Upon the entire record, I would find, as did the Trial Examiner,
that the respondent removed its operations from Detroit to Hamburg
in order to avoid collective bargaining with and to discourage mem-
bership in the Union in contravention of Section 8 (1), (3), and (5)
of the Act. '
I am also of the opinion that the respondent, by conditioning the
employment of Ralph Gower upon his resignation as chief shop
steward of the Union,53 discriminated against Gower, and discouraged
membership in the Union by vetoing in effect the employees' choice
of union representative. It is plain that the imposition of such a
condition violates Section 8 (1) and (3) of the Act. 54 It cannot be
said that Gower's resignation as chief shop steward and his return to
work constituted a compromise which should induce the Board to
dismiss the complaint in respect to Gower, since the Union did not ap-
s3 Under the collective labor contract of March 3, 1937 , the respondent recognized and
dealt with shop stewards designated by the Union to represent union members in the
settlement of labor disputes , and under union procedures Gower, who was chief shop
steward, acted with the steward of each plant department as a bargaining committee for
employees in such department and also was head of the committee of shop stewards
which had authority to make .the final decision as to the manner of settling employee
complaints and grievances which otherwise could not be adjusted.
^ Cf. Phelps Dodge Corporation v. N. L. R. B , 313 U S 177, aff'g as mod. 113 F (2d)
202 (C C A. 2 ), enf'g as mod. Matter of Phelps Dodge Corporation and International
Union of Mine, Mall, and Smelter Workers, Local No. 30, 19 N. L. R. B. 547. In N L R. B.
v. Waunibec Mills, Inc ., 114 F. (2d) 226 (C. C. A. 1) enf'g as mod . Matter of Waumbec
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prove such resignation and return until it learned that a charge had
been filed with the Board in order that the respondent's conduct in
imposing the afore-mentioned condition upon Gower's employment
might be reviewed by the Board. Moreover, if it were a compromise,
it nonetheless constituted an unfair labor practice by the respondent,
and to give effect to it undermines rather than effectuates the policies
of the Act.- Finally, the failure of the Union to file exceptions to
the Trial Examiner's recommendation that the allegations as to Gower
be dismissed does not warrant acceptance of such recommendation
where, as here, the evidence clearly proves a serious infringement of
the rights guaranteed employees in, and the public policy established
by, the Act.56
APPENDIX A
Emery Aben
Robert Aben
Herman Aben
Homer Adams
John Adams
Theo. Addison
Carey Akerly
Alta Allsbrooks
Dan Anady
Elizabeth Anady
Wm. Anderson
Angelo Artisimi
Giacinto Ayello
Mason Baggett
Steve Balla
George Ballard
Lawrence Ballard
Mary Barber
Edward Beaudette
Lee Beauvais
Mills, Inc. and United Textile Workers of America, 15 N. L . R B. 37, the United States
Circuit Court of Appeals for the First Circuit said :
An offer of employment only on condition that the applicant will not join a union
or will refrain from union activity , is without doubt a violation of Section 8 (3)
as a "discrimination in regard to ... any term or condition of employment "
In Matter of The Kelly -Springfield Tire Company and United Rubber Workers of America,
Local No 26 and James M. Read and Minnie Rank , 6 N. L. R. B. 325, 331, the Board said :
It is common knowledge that the availability of means for adjusting individual
grievances through group representatives , and the work carried on by such repre-
sentative , constitute an important inducement to union affiliation . . . the Union
had reached an understanding with the management for the presentation of employee
complaints through Union grievance committees . In furloughing [an employee]
. . . because of his activity as chairman of [the union grievance committee ] . . . the
respondent struck at a vital Union activity , and by such discrimination as to employ-
ment, discouraged membership in the Union within the meaning of Section 8 (3) of
the Act. The respondent's conduct likewise interfered with, restrained , and coerced
its employees in the exercise of rights guaranteed them by Section 7 of the Act
See also Matter of The Triples, Screw Company and Amalgamated Association of Iron,
Steel and Tin Workers of North America , Local No . 7583, 25 N . L. R. B. 1126
55 Cf. Matter of Corinth Hosiery Mill , Inc and American Federation of Hosiery Workers,
16 N. L . R. B. 414. Section 10 (a) of the Act provides that the jurisdiction of the Board
in respect to unfair labor practices , shall not he affected by any other means of adjust-
ment or prevention that has been or may be established by agreement'. . .
fie In Amalgamated Utility Workers, etc. v. Consolidated Edison Company of New York,
Inc., et al., 309 U. S. 261 , the Supreme Court of the United States said :
The Board as a public agency acting In the public interest , not any private person
or group, not any employee or group of employees , is chosen [by Congress] as the
instrument to assure protection from the described unfair conduct in order to remove
obstructions to interstate commerce.
See also Agwilines, Inc. v. N. L. R. B ., 87 F. (2d) 146 (C. C. A. 5).
BROWN-McLAREN MANUFACTURING COMPANY 1025
Elsie Bebo
Otto Becker
John A. Badoian
Charles Bengston
Edwin Benner -
Albin Benson
Sidney Bergstrom
Milton Blaisdell
Alex Bognar
Gilbert Bohning
Harry Bonner
Mary Boyd
Wilbur Braund
Stanley Brown
Arthur Burt -
Gordon Burt
James Burt
James Cairns
Emanuel Calcagno
John Campbell
Ruther Campbell
Fred Capechi
George Capechi
John Carlson
Bruno Capicchi
Hattie Carbaugh
Greta Cartwright
James Clerihew
Archie Coldiron
Thomas Coleman
Eleanor Conway
John Coppersmith
A. Cousins
Marvin Cross
Ralph Cross
Joseph Daniels
John Davis
Edmund Dawidowski
Jake DeHaan
Joe Dobransky
John Domby
Margaret Domby
Wm. Drozella
Stella Dzuiba
John Eddy
Floyd Emans
Austin Enoch
Delbert Esche
Bert Essler
Clarence Ewing
Katherine Farkas
Noville Farmer
Conrad Fauser
Fred Federspiel
Flori Ficsor
John G. Finigian
Martin Fisher
Mary Formento
Mabel Frazier
Chester French
Henry Gardner
Francis Gladyszewski
Thos. Graham
Mae Gray
Neva Gray
Alfred Green
Joe Griffiths
Virgil Griffin
George Guerty
Steve Gyenge
Alberta Harrison
Mathew Hayes
Max Hecker
John Hennessey
John Hennessey, Jr.
George Herman
Robert Hille
John Hintz
Geo. Holloway (Hollway)
Alta Hoppe
Douglas Horuczi
Merle Hauser
Harry Huber
Theo. Hug
Justine Hug
Alexander Ivan
Josephine Jakimiszyn
Herbert Jendron
Rex Jenne
Archie Jerore
0
1026 DECISIONS OF NATIONAL
Ivor Johns
Edna Johnson
George Kalagian
Lawrence Kalagian
Lucille Kalagian
Ulrich Kallenburg
Steve Kalo
Catherine Kapuscinski
Frank Kavesansky
Jeannette Kavesansky
Paul Kelley
Harry Kent
Louis Keso
Ben Kideckel
Clarence King
Alex Kish
Joe Kladiva
Wm. Klein
Edward Klein
Hj almar Kouruniemi
Charles Kozma
Wm. Kretchmer
Max Kreuger
Wm. Kubat
Stanley Kubick
Bertha Kush
Helen LaBelle
Edward LaCross
James LaDouceur,
Peter Larson
Agnes Layne
Graham Leader
Eric Liebenthal
W. M. Lindsay
Joe Lucido
Peter Mallack
Anthony Mangiarein
Joe Marczis -
George Marth
John Mason
Olive Matevie
Alex May
Mary Mentzert
Dan Miller
Manuel Miller
LABOR RELATIONS BOARD
Gordon Moore
Edwin W. Moser
John Muncie
Archie McEachran
John McIntosh
Clarence Nageleisen
Catherine Nash
Louis Nemeth
Clarence Newby
Archie Newland
Vincent Noonan
Daniel O'Brien
Henry O'Connor
Thomas O'Donnell
Myrtle Oglesbee
Adolph Ott
Donald Owen
Louis Pall
Elizabeth Pastelak
Helen Paszkowski
Steve Pata
Gabor Patay
Victor Pek
Alfred Perry
Elton Porath
Ernest Porter
Fred Porter
Joe Puchle
Joseph Puzak
Henry L. Randolph
John Ranusch
Harold Rasbach
Walter Raven
Francis Reynolds
William Rickner
Ronald Rivard
Wm. Rogers
Betty Ross
Josephine Rzeznkzek
Chas. Sabo
Otto Saffran
Walter Schroeder
Clarence Schroeder
August Schuetze
Howard Scott
BROWN-McLAREN MANUFACTURING COMPANY 1027
Russell Scott
Virgil Seale
Harold Sharpe
James Shirtz
Leon Sitrin
Gabriel Sitrin
Joseph Slisz
Walter Slowick
Mary Smith
Josephine Sroka
John Stetz
Jacob Stevens
Andy Strange
Walter Stroup
Elton Stubbs
Sarah Tanner
Opal Teague
Geo. Themistecles
Harley Thomas
Al. Tiffin
Jack Travis
Henry Travis
John Traylor
Catherine Traylor
Luella Van Dusen
Mary Vargo
Julius Vassi
Wm. Vasvari
Albert Venditti
Dominic Vermiglio
Katherine Warren
Geo. Webb
Maude Webb
Thos. Webb
Henry Weber
Anna Weiss
Edna Weiss
August Weiss
Stanley Weiss
Robert Wenzel
Lawrence Wheaton
Jessie Wheatley
Leslie Wheatley
Archie Wilson
Roy Wirick
Albert Witker
Otto Witzka
Lena Wolf
Alvin Wright
Conrad Young
Mattie Young
Jacob Young
Charles Zack
Elias Zeman, Jr.
Elias Zeman, Sr.
Carl Zoliweg