Bryan Manufacturing Co.

National Labor Relations Board - Board Decisions

May 24, 1946

68 N.L.R.B. 197 (N.L.R.B. 1946)

In the Matter of BRYAN MANUFACTURING COMPANY and UNITED AUTO-
MOBILE WORKERS OF AMERICA , A. F. OF L.
Case No 11-C-1171 -Decided May 24, 1946
DECISION
AND
ORDER
On October 18, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices , and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the respondent filed exceptions to the Intermediate
Report and a supporting brief. On April 25, 1946, the Board heard oral
argument at Washington, D. C., in which the respondent participated
The Union did not appear for the oral argument.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermediate
Report, the respondent's exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the exceptions and additions noted
below.
1. The Trial Examiner found that the respondent utilized the admitted
refusal by James Paris to wash certain windows as an excuse to dis-
charge him because of his union activities, and that, absent such activi-
ties it would have found other employment for him. We do not agree.
The record shows that the window washing job in question was assigned
to Paris in the normal routine of his work as an unskilled laborer and
that on previous occasions he had performed the same job without ques-
tion . His refusal, on claim of inability, to do the job on the instant
occasion presented the respondent with the alternatives of finding other
work for him or of temporarily or permanently dismissing him. The
respondent contends that it had no other work for which he was suited.
The record shows that the respondent was in need of new employees at
the time of Paris' discharge . It is clear , however , that most , if not all,
68 N. L R. B., No. 28.
197
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the work to be performed by such new employees required skills or
aptitudes not possessed by Paris. On the basis of the entire record, we
find no substantial evidence that Paris' discharge was discriminatory,
and we shall, accordingly, dismiss the complaint as to him.
2. The Trial Examiner found that the respondent discharged James
Spoor because of his union membership and activity. He based this
finding, in part, on Spoor's testimony that he attended an evening meeting
of the Union; that immediately after the meeting he was accosted on
the street by Supervisor Pritchard, who asked him "if he did not know
better than to mess around" with the organizer for the Union and
warned that if he did not stop his union activities he would get into
trouble with the respondent ; and that on the following morning he was
discharged. The respondent, however, contends that Spoor was dis-
charged on the day before the meeting of the Union. At the hearing,
Spoor testified that he was discharged on September 29; whereupon
counsel for the respondent asked Spoor whether the employment records
were mistaken if they showed that the discharge occurred on September
27. The employment records were not introduced into evidence and
no showing was made as to their contents. Spoor and Layman, an
organizer for the Union, both testified that the meeting of the Union was
held on September 28. While Spoor and Layman may have been mistaken
in their testimony as to exact dates, Spoor clearly testified without
contradiction that his discharge occurred on the morning after the meeting
of the Union and explained at the hearing that he placed the date of the
union meeting by his recollection of his discharge being on September
29.1 In these circumstances, we, like the Trial Examiner, credit Spoor's
testimony as to the sequence of events, regardless of the actual date of
the discharge. We also concur in the Trial Examiner's finding, for the
reasons set forth in the Intermediate Report, that the respondent dis-
charged Spoor, not because he was an unsatisfactory employee, but be-
cause of his union membership and activity.
3. The Trial Examiner found that the respondent discriminatorily
discharged Ruth Brunner, Lois Platt, and Marie Martin. In support of
the respondent's contention that these employees were discharged for
cause, the respondent adduced testimony by supervisory employees
Massey, Nickels, Palnik, and Ross to the effect that Brunner, Piatt, and
Martin failed to do their work properly and talked excessively on the
job; that these alleged shortcomings were observed by the respondent's
supervisors and reported up the chain of authority ; that the three em-
ployees were warned about their work and excessive talking ; that the
' During oral argument before the Trial Examiner , counsel for the Board conceded that
Spoor was discharged on some day other than September 29, 1944, and that the respondent's
records show the correct date. The records , as stated above, were not introduced in evidence.
BRYAN MANUFACTURING COMPANY 199
warnings were ineffective .2 and that the respondent then decided to
discharge them.
Like the Trial Examiner, we consider it quite possible that the work-
manship and deportment of these employees left something to be desired
and that supervisors had suggested improvement therein. In view, how-
ever, of the sequence of events as set forth in the Intermediate Report,
and particularly the showing that the three employees joined the Union,
despite the warnings against such action by Supervisor Lawrie, and
were discharged on the following day, after they had worn union buttons
in the plant for the first time and had been subjected to the harsh con-
demnation of Lawrie for so doing, we find, as did the Trial Examiner,
that the respondent discharged Brunner, Piatt, and Martin because of
their union membership and activity.
4. We do not agree with the Trial Examiner's finding of discrimination
in the respondent's discharge of Elsie Perrigo. The respondent claims
that its principal and immediate reason for discharging Perrigo was
that she overstayed a leave of absence. Undisputed evidence shows, and
we find, that prior to Perrigo's discharge the respondent had published
a plant rule limiting leaves of absence to 2 weeks, except upon authorized
renewal; that it was the respondent's custom to terminate automatically
the employment of persons overstaying their leave by more than 3 days ;
and that Perrigo was granted a leave of absence on January 2, 1945, and,
thereafter, without obtaining a renewal, she stayed away from the plant
and out of touch with the respondent until on or about January 27,
1945, when she telephoned to the general manager and was told by him
that her place had been filled because she had overstayed her leave and
her work had not been satisfactory. It does not appear that the re-
spondent intended the leave of absence granted Perrigo to be outside the
general 2 weeks' rule.3 At the hearing, Perrigo claimed ignorance of
the 2 weeks' rule. Her ignorance, of course, cannot serve to exonerate
her from its consequences where, as here, the respondent had taken
reasonable measures to inform its employees of the rule.4 Moreover,
2 In the Intermediate Report, the Trial Examiner refers to the statement , "You have been
warned," made to Brunner, Martin, and Piatt by Foreman Nickels at the time he sent
them to the office for discharge, without mentioning Nickels' explanation that he was thereby
referring to alleged prior warnings about their work and conduct.
3 It is true, as the Trial Examiner found , that Plant Superintendent Franz, who told
Perrigo she could take a leave , did not set a time limit in his conversation with her. In the
absence of a showing to the contrary though it must be assumed that when Franz authorized
a leave he intended one subject to the plant regulations which had been published . The leave
slip prepared by the respondent to cover Perrigo 's request for leave, and never picked up
by her, is in evidence and shows leave starting on January 1, 1945, and expiring on January
it, 1945.
4 The rule had been the subject of a plant bulletin board announcement Perrigo testified
that she avoided reading matter on the bulletin board because material referring to the war,
which was often posted there, distressed her. There is no showing that the respondent knew
that Perrigo was ignorant of the 2 weeks' rule or that she would not stop at the plant to pick
up her leave slip . Rosemary Curbox , the respondent's timekeeper , testified that in cases
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no showing was made that the rule was discriminatorily invoked against
Perrigo. Under the circumstances, we find that the respondent, in ac-
cordance with its established practice, discharged Perrigo for over-
staying her leave, and we shall accordingly dismiss the complaint as
to her.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Bryan Manufacturing Company,
Monticello, Indiana, and its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Discouraging membership in United Automobile Workers of
America, A. F. of L., or any other labor organization of its employees,
by discharging or refusing to reinstate any of its employees, or by dis-
criminating in any other manner in regard to their hire and tenure of
employment, or any term or condition thereof ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to join
or assist United Automobile Workers of America, A. F. of L., or any
other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities, for the
purpose of collective bargaining or other mutual aid or protection, 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) Offer to James Spoor and Lois Piatt immediate and full reinstate-
ment to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges ;
(b) Make whole James Spoor, Marie Martin, Lois Piatt, and Ruth
Brunner, for any loss of pay they may have suffered by reason of the
respondent's discrimination against them, by payment to James Spoor and
Lois Piatt, respectively, of a sum of money equal to the amount which
each normally would have earned as wages from the date of his dis-
charge to the date of the respondent's offer of reinstatement, less his
net earnings during such period ; and by payment to Marie Martin and
Ruth Brunner, respectively, of a sum of money equal to the amount
which she normally would have earned as wages from the date of her
discharge to the date on which she received new employment, and no
longer desired reinstatement by the respondent, less her net earnings
during such period.
where she knew an employee would not be at the plant to pick up a leave slip, she would
mail the slip to the employee and that she had done this on three or four occasions. In all
other cases the employee was expected to pick up his leave at the plant.
BRYAN MANUFACTURING COMPANY 201
(c) Post at its plant at Monticello, Indiana, copies of the notice
attached to the Intermediate Report herein, marked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by the respondent's rep-
i esentative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for at least sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respon-
dent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Eleventh Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply therewith.
It is further ordered that the complaint be, and it hereby is, dismissed,
insofar as it alleges that the respondent discharged James Paris and
Elsie Perrigo in violation of the Act.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Messrs William O. Murdock and Clifford L Hardy, for the Board.
Mr. Albert M. Stern, of Detroit, Mich, for the respondent.
Mr. Jesse W. Layman, of Logansport, Ind, for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Automobile Workers of America,
A. F. of L., herein called the Union , the National Labor Relations Board, herein
called the Board , by the Regional Director of the Eleventh Region (Indianapolis,
Iudiana ),1 issued its complaint dated July 21, 1945, against Bryan Manufacturing
Company, Monticello , Indiana, herein called the respondent , alleging that the
respondent had engaged in and was engaging in unfair labor practices, within the
meaning of Section 8 (1) and (3) and Section 2 ( 6) and ( 7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing thereon were duly served upon the respondent
and the Union.
With respect to the unfair labor practices , the complaint alleged in substance
that the respondent- (1) on and after April 4, 1944, interrogated its employees and
prospective employees regarding their union membership and activities ; advised,
urged, threatened, and warned its employees to refrain from becoming or remaining
° Said notice, however, shall be and it hereby is, amended by striking from the first paragraph
thereof the words "Recommendations of a Trial Examiner," and substituting in lieu thereof
the words "A Decision and Order," and by striking from the notice the names "James
Paris" and "Elsie Perrigo."
' The original charge was filed with the Regional Director for the Thirteenth Region, the
case being docketed as Case No. 13-C-2437. On December 5, 1944, the Board ordered that
that case be continued in the Eleventh Region as Case No. 11 -C-1171.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of the Union ; made disparaging remarks respecting the Union and other
labor organizations ; and maligned , villified, and assaulted representatives of the
Union in the presence of its employees and otherwise made clear to the latter
its opposition to their self -organization ; ( 2) during the period September through
December 1944, discharged and refused to reinstate six named employees because
of their membership in and activities on behalf of the Union ; and (3 ) thereby
interfered with, restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The respondent thereafter filed an answer dated July 31, 1945, denying the com-
mission of any unfair labor practices.
Pursuant to notice, a hearing was held at Monticello , Indiana, from August 1
through 8, 1945, before the undersigned , Josef I, Hektoen, the Trial Exam-
iner duly designated by the Chief Trial Examiner The Board and the respondent
were represented by counsel and the Union by its representative ; all participated
in the hearing Full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing on the issue was afforded to all parties At the
close of the hearing, the motion of counsel for the Board to conform the com-
plaint to the proof in formal matters was allowed without objection and counsel
for the Board and for the respondent argued orally before the undersigned; they
waived the filing of briefs
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Bryan Manufacturing Company, is an Ohio corporation oper-
ating plants in Ohio and Indiana. At its Monticello, Indiana, plant, the sole plant
involved in this proceeding, the respondent is engaged in the manufacture of wire
and cable assemblies For that purpose it buys insulated copper, copper strips,
solder and other material having a value in excess of $50,000 annually, more than
50 percent thereof from points outside the State of Indiana. It annually sells
finished products having a value in excess of $50,000, more than 50 percent thereof
being shipped to points outside the State of Indiana.2 The respondent admits that it
is engaged in commerce, within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America, A. F. of L., is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The respondent began operations at its Monticello plant about April 1, 1944. Its
chief supervisory employees were Plant Manager Lawrence Ross, Superintendent
2 The respondent and the Board entered into a stipulation on the record respecting the
business of the former. Although the stipulation does not specifically state that the stated
volumes are computed on an annual basis, the undersigned finds such to have been the intention
of the parties to the stipulation, and to be the fact.
BRYAN MANUFACTURING COMPANY 203
Ernest Franz, and Assistant Superintendent Joe Palnik. The plant employed about
300 persons as of December 1944, and about 270 at the time of the hearing. The
respondent's Peru, Indiana, plant handles the bookkeeping records and prepares
the pay-roll checks for the Monticello plant.
The Union began its organizational drive at the plant during June 1944, when
union representative Jesse Layman began passing out leaflets at the plant gates
before work in the morning. On June 28, Layman wrote the respondent by regis-
tered mail naming the recently selected members of a union bargaining committee,
including employee Elsie Perrigo, whose discharge is hereinafter discussed. He also
stated that supervisors of the respondent had interfered with the Union's efforts
and voiced the hope that it would not be necessary to file charges of unfair labor
practices against the respondent The respondent did not answer the letter
On July 21, the Union filed charges alleging violation of section 8 (1) of the Act
by the respondent.
On August 30, the Union filed a petition for investigation and certification of
representatives.
On September 26 and about 29, respectively, the respondent discharged union
employees James Paris and James Spoor.
On October 19, the Board conducted a hearing in the representation case and on
November 22, issues its Decision and Direction of Election.
On November 30, the respondent discharged union employees Marie Martin,
Lois Piatt, and Ruth Brunner. On December 9, the Union filed an amended charge
alleging the five discharges to constitute violations of Section 8 (3) of the Act.
On December 18, the Board conducted an election of the respondent's employees.
The Union lost, 130 votes to 74.
On January 25, 1945, the respondent discharged employee Perrigo, then the
Union's president. The Union thereafter included her case in amended charges.
On March 22, 1945, the Board issued its Supplemental Decision and Order dis-
missing the Union's petition.
B. Interference with the Union's organizational efforts
On July 10, 1944, while representatives Layman and Leonard Cranfil were
distributing union leaflets at the plant entrance, Supervisor Harry Pritchard twice
spat tobacco juice upon them from a window above the entrance. On July 13,
Layman distributed a leaflet respecting this occurrence Pritchard received and
read a copy thereof that morning. He thereafter advanced on Layman, and, among
other epithets, called him a "son of a bitch, a jailbird, a no-good union represen-
tative." Layman did not reply and Pritchard then took up a position at the plant
entrance where he repeated his characterization of Layman in a loud voice,
adding that he had investigated Layman's record, found that he had spent half
his life in jail and had never held a job except with the Union, and threatened to
"wipe up the sidewalk" with him if Layman did not leave the premises. Pritchard
thereupon again advanced on Layman and continued to abuse him in a loud voice.
Layman protested that Pritchard's strictures were untrue and the latter, at a few
minutes before 7 a. in., finally entered the plant. Employee James Paris, whose
discharge is considered infra, was present during part of the incident and protested
that Pritchard's statements constituted a penitentiary offense. Pritchard replied that
Paris was himself a "penitentiary offense." The fracas lasted about half an hour
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was witnessed by some 100 employees who arrived for work during its
progress.3
It is found that by the acts and statements of Pritchard, the respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.4
C. The discriminatory discharges
1 James Paris
Paris was employed by the respondent on May 17, 1944. He was interviewed by
Cowger, who, according to Paris, asked him if he was favorably inclined toward
unions, and when he answered that he was provided they had proper leadership,
stated that the respondent did not believe in them Cowger denied speaking to Paris
in this fashion . Paris had previously worked in an ordnance plant where he had
been a union member, pursuant to the terms of a closed -shop contract . Under all
of the circumstances revealed in the record , the respondent is found to have had
knowledge of such union membership . Cowger 's statements to Layman , related
above, as well as her repeated anti -union statements , hereinafter found, Paris'
convincing testimony , and the entire record convince the undersigned that Cowger
spoke to him substantially as he testified . It is so found
First hired as a machinist , Paris proved unable to perform his duties satis-
factorily . He was laid off for 10 days and thereafter employed as a laborer under
Foreman Dennis Chamber, in charge of maintenance , cleaning up about the plant
and in the basement . Paris joined the Union in June 1944 , thereafter took part in
distributing its literature , and was active in soliciting fellow employees for
membership.
During July, according to the undenied testimony of Paris, which the undersigned
accepts, Foreman Ray Lawrie , whom Paris solicited to join the Union, told him
that the Union was "no good," warned him that if the employees did not cease
3 These findings are based upon the undenied and credible testimony of Layman and Paris.
Pritchard ceased work for the respondent in November 1944, and was in Florida at the time
of the hearing The respondent stated that it was unable to produce Pritchard at the hearing
in Monticello The undersigned therefore stated upon the record that the hearing would be k^pt
open for a period of 10 days in order that the respondent , should it desire to do so, might produce
Pritchard for examination in Washington, the place agreed upon by all parties, at a resumed
session of the hearing within that time This period was thereafter, upon request, extended by
the undersigned to include August 24 Pritchard was not produced and on August 25, the
undersigned issued an order closing the hearing.
4 Layman testified without denial, and it is found, that during July 1944, he telephoned
Gertrude Cowger, the respond,-nt's personal interviewer, and informed her that he had
reports to the effect that she had told employees and persons applying for work that they
should neither join nor have anything to do with the Union Cowger replied that the respondent
did not need a union and viquued why Layman was not in the armed forces Cowger had
lived in Monticello for 30 years and was well acquainted locally. Her duties included assisting
applicants to fill out forms , investigating their references, and making recommendations as
to their hire to Manager Ross or Superintendent Franz She sometimes recommended action
on the basis of her personal knowledge of the applicant Although witnesses for the respondent
testified that she did not have supervisory authority, a realistic anpraisal of the effect of hei
position and activities upon the minds of applicants for work and employees of the respondent
must lead to the conclusion that in their eyes she spoke for its management Being thus
strategically placed to convey to them the respondent'- wishes it 's found that the respondent
was responsible for Cowger 's statements. While no specific finding of unfair labor practices
by the respondent is based upon her conversation with Layman, their talk is related because
of its bearing on the controverted evidence , hereinafter considered , of other anti - union state-
ments by Cowger.
BRYAN MANUFACTURING COMPANY 205
their interest in it the plant would close and move from Monticello, and stated that
the Union merely got money from the employees.5
Also during July, Foreman Chambers, according to Paris, told him that the
Union was "no good" and that the respondent would discharge the union employees.
Chambers testified that he had never spoken to any employee for or against the
Union and could recall no such conversation with Paris. The undersigned was
not impressed by Chambers' testimony and credits that of Paris.
On September 26, Paris, although he had previously washed plant windows that
did not require his standing on a ladder, informed Chambers that he would be
unable to carry out orders to wash certain other windows because doing so necessi-
tated his using a ladder. He explained that a foot injury precluded his standing
on the rungs without great pain in his leg muscles. Chambers thereupon took him
to Assistant Superintendent Palnik, who, upon Chambers' statement that he had
no other work for Paris, discharged him.
Paris received two increases in pay while working for the respondent, satis-
factorily carried out the task of preparing Palnik's house for occupancy on the
occasion of the latter's moving to Monticello, and his work as laborer was not
criticized by the respondent. At the time of Paris' discharge, the respondent had
a standing order for workers at the office of the United States Employment
Service,6 and as Manager Ross testified, was then in the habit of condoning em-
ployee behaviour which, but for the acute manpower shortage confronting it, it
might not otherwise have permitted. The respondent employed about 14 or 15
maintenance men, of whom 4 or 5 were window-washers.
The respondent had clear knowledge of Paris' strong union attachment. In the
opinion of the undersigned, it would be unrealistic to conclude that in a plant
employing some 300 persons, and in desperate need of manpower, the respondent,
absent its anti-union bias, would not have found a task in which to employ Paris.
It is therefore found, contrary to Chambers' assertion, that other work was avail-
able for Paris and that the respondent did not dismiss him because of his inability
or refusal to wash certain windows, or lack of work which he could perform, but
merely utilized the incident as an excuse to rid itself of him, its real reason for
doing so, as shown by Chambers' prior threat that the respondent would discharge
its union employees, being his union membership and activity. It is further found
that the respondent thereby, and by the statements of Cowger, Lawrie, and
Chambers, has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
2. James Spoor
Spoor was employed in May 1944, and worked for the respondent until his
discharge on September 27. He joined the Union in June and wore a union button
at work two or three weeks before his discharge His work was complimented by
Supervisors Palnik, Galen Paul, and Joe Spinard.
During August, according to Spoor's credible testimony, he asked Cowger at her
home for a raise and she replied that she would do what she could for him and
suggested that he had not theretofore received one because of his "messing around
with the union." Cowger denied the conversation but testified that Spoor often spoke
to her and that he "was one of the pests" and was an annoyance The undersigned
accepts Spoor's testimony.
° Lawrie was not in the respondent's employ at the time of the hearing and did not testify.
° It was maintained until about January 1, 1946.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The night before his discharge, Spoor attended a union meeting at a hall in
Monticello. After its close, as he was talking to representative Layman on the
street, Supervisor Pritchard appeared and asked Spoor if he did not know better
than "to mess around with this jail-bird" (Layman) and warned him that if he
did not cease his union activities, he would get into trouble with the respondent.
Thereafter Layman and Spoor proceeded to a bowling alley where they were
joined by employees, Helen Stinson and Zelda Wiese. While they were there,
Supervisor Mickey Larimer appeared and in Spoor's hearing asked Stinson if she
were a union member and upon being told she was, told her she should be ashamed
for joining the Union, would be sorry for having done so, that the Union would do
her no good, and that he had been a union member and received no benefit from it.7
When he arrived for work at the plant on the following day, Spoor's time-card
was missing from the rack He inquired of Cowger as to the reason and was
referred to Palnik. The latter handed Spoor his discharge papers and told him
that the respondent was dispensing with his services because he had been absent
from work too frequently and because it feared that Spoor's heart condition might
lead to an accident in the plant.
The evidence reveals that Spoor had a bad heart, had been examined by a local
physician and informed that he might safely perform tasks which did not result
in over-exertion, that the respondent was so informed when it hired Spoor, and
that in consequence of the condition, Spoor had missed some work but had never
previously been spoken to about it by any official of the respondent. No explanation
appears in the record as to why the respondent discharged him on the particular
day in question.
The respondent's continuing great need of manpower, the fact that it hired and
retained Spoor over a period of ,4 or 5 months with full knowledge of his heart
condition and had not spoken to him respecting his apparently necessitous occasional
absences from the plant caused thereby, Pritchard's finding Spoor in the company
of representative Layman the night before and his prophetic announcement that
Spoor would get into trouble by reason of his association, as well as the entire
record in the case, lead the undersigned to the conclusion that the respondent dis-
charged Spoor not because he was an unsatisfactory employee but because of his
union membership and activity. It is so found It is further found that the
respondent thereby, and by the acts and statements of Cowger, Pritchard, and
Larimer, has interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
3. Ruth Brunner , Lois Piatt, and Marie Martin
These three employees were hired by the respondent on November 6, 1944, and
discharged on November 30. They were interviewed for employment by Cowger,
who, according to the testimony of Brunner and Piatt, which the undersigned
accepts, asked them if they had previously been union members. Brunner and Piatt
answered in the affirmative.8 Brunner testified, and the undersigned finds, that
r These findings aie based upon the credible and undenied testimony of Layman and Spoor.
Larimer was not in the respondent's employ at the time of the hearing and did not testify.
, Maitin had previously worked at the Peru plant of the respondent and was not, so far as
is revealed by the record, asked this question
BRYAN MANUFACTURING COMPANY 207
Cowger told her that she did not need to belong to a union at the respondent's
plant and she should at no time talk of the Unions
According to the undenied testimony of Piatt, Supervisor Lawrie on several
occasions remarked to the three employees that they would be foolish to join the
Union, would thereby interfere with the war effort, and that the Union would
never get into the plant. They nevertheless joined the Union on November 29, and
on November 30 wore union buttons at work. On that morning, Lawrie, in the
presence of Piatt and Brunner, asked Martin if her husband was overseas. She
answered that he was and Lawrie thereupon asked her if she did not realize that
by joining the Union she was "just the same as killing him and he will never come
back." Late in the afternoon of the same day, Foreman Ermal Nickels told the
three employees to go to the office, stated that "Rosemary has your papers and
money ready" and added, "You have been warned."10 They went to the office, were
given their discharge papers, and paid off in cash by employee Rosemary Curbox.
Brunner and Piatt testified that the papers and cash" were prepared and ready
when they arrived. Curbox denied that they were. The evidence reveals that it
normally required some 15 minutes to prepare a set of discharge papers since the
matter had to be "cleared" by telephone with the respondent's Peru office and the
amount due the dischargee there determined. Piatt testified that Curbox did not tele-
phone while they were in the office. It is found that their discharge papers and pay
were already prepared when they arrived at the office.
Witnesses for the respondent testified that the three employees did not perform
their task of taping cables properly, held their work in their laps, sat less than
the required 54 inches apart, put cables into boxes improperly thus twice causing
supervisory employees to work overtime in order to correctly pack them, held up
production on one occasion without good cause, talked too loudly, and that they
had been spoken to respecting both their poor work and loud talking. The three
employees testified that their work had not been the subject of criticism by the
respondent and that they had received no "warnings" respecting their conduct
The undersigned believes it entirely possible that the three employees, being new
and inexperiencd with only about 3 weeks' tenure, left something to be desired
in the matter of workmanship and deportment and that the management suggested
improvement therein, but under the circumstances of their discharges, considers
the resolution of any conflict in testimony respecting such matters, unnecessary.
Supervisor Raymond Massey testified that the real reason for their discharges
was "talking loud" to each other in the plant. There was no plant rule against
talking.
The chronology of events (the Board's Decision and Direction of Election was
issued on November 22 and directed that an election be held "not later than thirty
(30) days" from that date), Lawrie's singularly vicious inquiry directed to Martin
when he found them for the first time wearing union buttons on the day of their
discharge, as well as the respondent's abiding anti-union animus, above and here-
inafter found, its clear knowledge of their union membership, and all of the
circumstances revealed in the record, combine to convince the undersigned that
Edith Gerholt, an instructress until June 1945, according to Brunner told her to refrain
from speaking of the Union at any time. Gerholt was solicited for union membership and was
included in the appropriate unit found by the Board on the basis of her having done work
on the assembly line with skilled employees over whom she had no authority, despite the
respondent's contention to the contrary. The undersigned follows this finding and therefore
deems it to be unnecessary to resolve conflicting testimony respecting Gerholt's alleged
anti -union activities affecting Brunner and employee Elsie Perrigo.
11 Undented and credible testimony of Brunner, Piatt, and Martin
"Employees were otherwise paid by check.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brunner, Piatt, and Martin were not discharged for poor work or loud talking
but because they had flouted their union membership and sympathy by wearing
their buttons and the respondent promptly rid itself of them on that account. He
so finds and further finds that the respondent thereby, and by the statements of
Cowger and Lawrie, has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
4. Elsie Perrigo
Perrigo was employed by the respondent shortly after it began its Monticello
operations in April 1944. For the first 5 or 6 months of her employment she
operated a kick-press under Supervisor Pritchard and Foreman Ray Smith, and
at the time of her discharge in January 1945, had performed every task in her
department of about 55 employees.
Perrigo joined the Union at a meeting held at her house on June 20, 1944, and
attended by representative Layman and other employees who also joined . Further
meetings were held there and, as related above, on June 28, Layman wrote the
respondent to the effect that she had been named to the union bargaining com-
mittee She was extremely active in the Union and distributed leaflets, procured
the applications for membership in the Union of some 75 employees, and wore a
union button indicating that she was a committeeman.
Between June 20 and 27, according to her testimony, Assistant Superintendent
Palnik told Perrigo that there was union organizational activity going on at the
plant and asked her if she knew anything of it and what she thought of the matter.
Perrigo was non-committal and Palnik then told her that he was opposed to unions
during war-time and voiced disapproval of certain strikes then current in Detroit.
Palnik recalled a conversation with her respecting strikes and did not specifically
deny the statements attributed to him The undersigned finds that Palnik spoke
to Perrigo substantially as she testified.
During July, Supervisor Pritchard told Perrigo that he was surprised and
disappointed in her for joining the Union, that she was foolish to do so, that the
plant had come to Monticello in order to get away from unions, that it would
move away if necessary, that all employees who had anything to do with the
Union would be discharged, and when Perrigo protested that the respondent could
not discharge its employees for union activity, told her that "we can find some
.other reason to fire you"
On August 3 or 4, according to Perrigo, Palnik told her in the plant that she
was too much of a lady to be "mixed up in this union business," that she was
being hoodwinked, and that the employees did not need a union in the plant. The
incident apparently grew out of a discussion between Pritchard and Perrigo,
hereafter referred to, and was denied by Palnik. Palnik was a witness obviously
anxious to do anything in his power to be of assistance to the respondent His
denial did not impress the undersigned and it is found that he made the statements
attributed to him by Perrigo.
During October, Perrigo, who was elected president of the Union during the
month of November, telephoned Manager Ross and complained to him that
Pritchard was being impolite to her on account of their differences respecting the
Union In the course of the conversation Ross told her that the Union could get
the employees nothing that he could not himself give them.'2
During November or December, Perrigo and Layman called on Cowger and asked
her to stop her strictures respecting the Union According to their testimony,
12 Perrigo's undenied testimony
BRYAN MANUFACTURING COMPANY 209
Cowger replied that the plant did not need a union and that if the Union succeeded
in organizing the respondent's employees, the plant would move from Monticello.
Cowger testified that she told them she did not care to discuss the matter, that
they had been misinformed respecting her activities, and "this is a free country,
everybody has the right to their own opinions." The undersigned accepts the
testimony of Layman and Perrigo.
On December 18, during the election conducted by the Board, Perrigo complained
to the Field Examiner in charge that supervisory employees of the respondent
were standing about in the vicinity of the polling places and that their presence
there was improper. Accompanied by Perrigo, the Field Examiner went to the
respondent's office and there secured the management's agreement to keep all
officials in their offices during the balance of the time the polls remained open.
On December 27, Perrigo's son George, who had been overseas in the Navy,
telegraphed her that he was coming to Monticello on furlough. The plant was
taking inventory at the time, work was slack, and pursuant to an understanding
with the respondent, Perrigo ceased work on that day. Her son arrived on
December 31, and on January 2, 1945, the first working day thereafter, Perrigo
telephoned Superintendent Franz, told him of the situation, and requested a leave
of absence in order that she might be with George during the time of his furlough
Franz granted her request without limitation as to the length of her leave, stating
that the respondent automatically allowed such applications He also gave Perrigo
permission to take George through the plant and testified that he asked her to
pick up her leave slip in the office at "Rosemary's (Curbox) desk" when she did
so Perrigo, on the other hand, testified that Franz told her it would not be
necessary that she pick up the leave slip. The record does not disclose that she
and her son ever visited the plant as proposed; in any event, she testified, and the
undersigned finds, that she did not obtain a leave slip. Under these circumstances
it is found unnecessary to resolve the conflict in the testimony on this point.
.Perrigo remained in Monticello with George until January 24, when she accom-
panied hirr, to Chicago. When she left she delegated her daughter to get in touch
with the plait and ask if it would be satisfactory that Perrigo return to work on
January 29.1,1 About January 27, her daughter telephoned Perrigo and told her
that the management had informed her that Perrigo's position at the plant had
been filled. Perrigo immediately telephoned Manager Ross, expressed surprise and
indignation at the turn of events, and suggested that her union activities had been
the cause of her being ousted from her job while accompanying her son on his
furlough Ross replied that she overstayed her leave, that her work had not been
satisfactory, and denied that her connection with the Union had anything to do
with the situation.
Perrigo thereafter returned to Monticello and on January 29, again telephoned
Ross. He reiterated his refusal to permit her to return to work.
The respondent seeks to justify its discharge of Perrigo upon the grounds that:
(1) her work was not entirely satisfactory; (2) she had "insubordinated" a super-
visor ; (3) she was replaced after overstaying leave "which should have been
in writing but which was not obtained" ; and (4) she created discord in the plant
"in not being able to do various jobs at various times."
As to (1), Perrigo testified without denial, and the undersigned finds, that her
work was never criticized by any managerial employee of the respondent. Indeed,
it is undisputed that her work received praise on many occasions from both Foreman
Smith and Supervisor Clyde Culp.14
3' George left to return to duty on January 27.
11 Culp succeeded Pritchard when the latter left the plant in November.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (2), it appears that in August she had engaged in a discussion with
Pritchard in the course of which she said "damn" to him. Palnik overhead her
"damn him" but admitted that on the following day, she had told him she was
sorry about the incident and that he said, "Well, okay. That's all right."
With respect to (3), the question of overstaying her leave: witnesses for the
respondent testified that a plant rule limited leaves of absence to two weeks at
the end of which time they might be renewed if that were found to be expedient.
Working rules in mimeographed form were handed new employees; the only rule
with possible bearing on leaves was one stating that among other causes for dis-
missal were "Neglect of duty, excessive absences and repeated tardiness." The
evidence indicates that the two-week leave rule had been the subject of bulletin
board announcement but Manager Ross was unable to state when or in what words.
Perrigo testified, and it is found, that she did not know of it and had read no
bulletin respecting it The plant custom was to remove an employee's time card
from the rack when he overstayed his leave by 3 days and to discharge him of
record as of such date No witness for the respondent was able to definitely state
whether Perrigo's card had been removed from the rack on January 18,15 and
Perrigo's personnel folder states that she was discharged on January 25, 1945.
No witness for the respondent was able to explain why this date appeared thereon.16
The evidence with respect to Perrigo's leave slip is also fragmentary and unsatis-
factory The record discloses that leave slips were normally prepared by the
respondent's office and given to the employee involved before his leave began. It
also discloses that in the event an employee was not available to pick up his slip,
it was mailed to him by Curbox. Curbox had no specific recollection of mailing
any slip. Perrigo testified, and the undersigned finds, that she did not receive her
slip. The original of the Perrigo leave slip (employees were given or mailed a
duplicate) is in evidence It states that she was given leave for the period January 1
to 15, 1945, is signed by Culp and Superintendent Franz, and is dated January 6
Although Culp testified that he himself prepared the slip, no witness for the
respondent could explain why this date appeared thereon. Curbox, in whose
custody the slip was kept, could only surmise that it came to her in due course
and that she had placed it with the other papers in Perrigo's personnel file.
As to (4), the charge that Perrigo created discord in the plant by not being
able to perform various tasks : not only was her work never criticized , but the extent
of the respondent's evidence respecting it is limited to the testimony of Culp that
she had once asked him to be transferred to other work, had had discussions with
other employees in the plant, and spent much time in the rest-room. Perrigo was
never spoken to respecting such alleged failings There is no evidence that she
was unable to "perform various tasks" On the contrary, the evidence, as related
above, reveals that she had performed every task in her large department.
Upon the entire record, and particularly in view of Periggo's ignorance of the
two-week rule respecting leaves, the fact that she was in Monticello until
January 24 and did not hear from the respondent despite the fact that the decision
to let her go was apparently reached well before she went to Chicago for 3 or 4
days, the obscure and suspicious circumstances surrounding her personnel records
and leave slip, the patent failure of the evidence to support the respondent's charges
against her, the proof of her capable workmanship and her obvious value to the
15 Curbox testified that after January 1 , 1945, she had never waited more than 3 days after
the expiration of an employee' s leave before removing his card, but was unable to say what
she had done in Periigo's case.
16 The date on the folder had obviously been changed in ink Curbox testified that she
had made a mistake in writing it but could shed no light on the date in question.
BRYAN MANUFACTURING COMPANY 211
respondent during a time of continuing manpower shortage, together with her
well-advertised and outstanding union activities, including her successful intervention
in the election of December 18, the undersigned is convinced and finds that the
respondent discharged her not because of the various reasons advanced by it in
retrospective justification therefor, but because it was determined to wipe out the
focal point of the union virus remaining in the plant, and did so by ridding itself
of Perrigo. It is further found that the respondent has thereby, and by the acts
and statements of Palnik, Pritchard, Cowger, and Ross, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR FRAcrICEs UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent set forth in Section 1, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging in
certain unfair labor practices, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the respondent has discriminated in regard to the hire and
tenure of employment of James Paris, James Spoor, Marie Martin, Lois Piatt,
Ruth Brunner, and Elsie Perrigo because of their union membership and activities.
It will therefore be recommended that the respondent offer Paris, Spoor, Piatt,
and Perrigo17 immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges. It will be further recommended that the respondent make Paris, Spoor,
Brunner, Martin, Piatt, and Perrigo whole for any loss of pay they may have
suffered by reason of the respondent's discrimination against them by the payment
to Paris, Spoor, Piatt, and Perrigo of a sum of money equal'to that which each
would normally have earned as wages from the date of such discrimination to the
date of the respondent's offer of reinstatement, and to Brunner and Martin for the
period from the date of the discrimination against them to the dates upon which they
obtained employment elsewhere and no longer desired reinstatement by the re-
spondent, less the net earnings18 of each during said periods.19
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
I United Automobile Workers of America, A. F. of L., is a labor organization,
within the meaning of Section 2 (5) of the Act.
19 Brunner and Martin testified that they did not desire reinstatement
18 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 unlawful discharge and the
consequent necessity of his seeking employment elsewhere. See Matter of Grossett Lumber
Company, 8 N. L. R B. 440. Monies received for work-relief projects shall be considered
as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
19 Perrigo's back pay is to be computed from January 29, 1945, the date upon which she was
in Monticello and ready to work after returning from her leave of absence.
696966-46-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of James
Paris, James Spoor, Marie Martin , Lois Piatt, Ruth Brunner , and Elsie Perrigo,
thereby discouraging membership in the Union, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act
4. The aforesaid unfair labor practices are unfair labor practices , within the
meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Bryan Manufacturing Company,
Monticello, Indiana, its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in United Automobile Workers of America,
A. F. of L., or any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees or in any other manner discriminating
in regard to their hire and tenure of employment , or any term or condition thereof ;
(b) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self -organization , to join or assist United Automobile
Workers of America, A. F. of L., or any other labor organization, to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid or
protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to James Paris, James Spoor, Lois Piatt, and Elsie Perrigo immediate
and full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges;
(b) Make whole James Paris, James Spoor, Marie Martin, Lois Piatt, Ruth
Brunner, and Elsie Perrigo for any loss of pay they may have suffered by reason
of the respondent 's discrimination against them , in the manner set forth in the
Section entitled "The remedy," above ;
(c) Post at its Monticello , Indiana, plant , copies of the notice attached hereto
and marked "Appendix A." Copies of said notice , to be furnished by the Regional
Director for the Eleventh Region , shall, after being duly signed by the respondent's
representative , be posted by the respondent immediately upon receipt thereof, and
maintained by it for at least sixty (60) consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered , defaced, or covered by other material;
(d) Notify the Regional Director for the Eleventh Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of the Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
BRYAN MANUFACTURING COMPANY 213
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any
party or counsel for the Board may, within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rochambeau Build-
ing, Washington, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the party
or counsel for the Board filing the same shall serve a copy thereof upon each of
the parties and shall file a copy with the Regional Director As further provided
in said Section 33, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10) days
from the date of the order transferring the case to the Board.
JOSEF L. HEKTOEN,
Dated October 18, 1945. Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Automobile Workers of America, A. F. of L, or any
other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination
James Paris Lois F. Piatt
James Spoor Elsie Perrigo
We will make whole the employees names below for any loss of pay suffered
as a result of the discrimination.
Ruth Brunner Marie Martin
All our employees are free to become or remain members of the above-named
union or any other labor organization.' We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
BRYAN MANUFACTURING COMPANY,
Employer
By ..............................................
Dated ................. ...... Representative Title
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.