Bryan Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 20, 1951

94 N.L.R.B. 1331 (N.L.R.B. 1951)

BRYAN MANUFACTURING COMPANY 1331
quarter shall have no effect upon the back-pay liability for any other quarter.
It will also be recommended that the Company be ordered to make available to
the Board, upon request, payroll and other records to facilitate the computation
of the amount of back pay due 36
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAw
1. Respondent Union, Local 30, International Fur and Leather Workers Union
of the United States and Canada (Leather Division), is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent Company has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
3. By contributing support to Local 30, International Fur and Leather Workers
Union of the United States and Canada (Leather Division), Respondent Com-
pany has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (2) of the Act.
4. By discriminating with respect to the hire and tenure of employment of
Edmund Fabiszewski thereby encouraging membership in Respondent Union,
Local 30, International Fur arid Leather Workers Union of the United States and
Canada (Leather Division), Respondent Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
5. By causing Respondent Company to discriminate in regard to hire and tenure
of employment in violation of Section 8 (a) (3) of the Act, the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (b)
(2) of the Act.
6. By restraining and coercing employees in the exercise of rights guaranteed
in Section 7 of the Act, Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the
Act. -
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
k
[Recommended Order omitted from publication .in this volume.]
35 F. W. Woolworth Company, 90 NLRB 289.
BRYAN MANUFACTURING COMPANY, A CORPORATION and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F . L. and EM-
PLOYEES' BARGAINING COMMITTEE, PARTY TO THE CONTRACT. Cases
Nos. 13-CA-373 and 13-RC-782. June 20, 1951
Decision and Order
On February 21, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceedings, finding that
94 NLRB No. 187.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
further recommended that the Board sustain the objections to the elec-
tion which was held in Case No. 13-RC-782 on September 26, 1949,
and set aside the election.
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief. The Respondent's request for oral
argument is hereby denied because, in our opinion, the record, the ex-
ceptions, and the brief adequately present the issues alid the positions
of the parties.
The Board 1 has reviewed. the rulings made by the Trial Examiner
at the hearing 2 and finds that no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions and modifications.
1. We find, as did the Trial Examiner, that the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7, thereby violating Section 8 (a) (1) of
the Act, by the following conduct, fully set forth in the Intermediate
Report : (1) Threatening employees with loss of jobs if they supported
an outside union; (2) threatening to move the plant if an outside union
was selected ; (3) granting a wage increase shortly before the repre-
sentation election; and (4) interrogating employees as to their views
concerning union organization 4 However, in finding that the Re-
spondent committed independent violations of Section 8 (a) (1), we
^ Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in respect to this case. to -a three-member panel {Menmbers Houston, Reynolds, and
Styles].
2 The Respondent ' s objection to the order consolidating the hearings in the complaint
and "objections to Election" was properly overruled. The record reveals that the
Respondent received notice of the consolidation and the practice of consolidation in cases
of this type is in accord with the Board's Rules and Regulations and has been sanctioned
by the courts. N. L. R. B. v. Dixie Shirt Co., Inc., 176 F. 2d 969 (C. A. 4) ; N. L. R. R. v.
Minnesota Mining and Manufacturing Co., 179 F . 2d 323 (C. A. 8) ; Local 1031, IBEW
v. Herzog , 98 F. Supp . 613 (D . C. D. C.).
3In its brief the Respondent asserts that the conduct of the Trial Examiner at the
hearing demonstrated bias and prejudice. We have carefully examined the various
incidents to which the Respondent refers, and the entire record , and find no basis in
any conduct by the Trial Examiner at the hearing or in any of his rulings for a' conclusion
that lie was biased or prejudiced.
'The Trial , Examiner dismissed certain 8 ( a) (1) allegations of the complaint as not
having been proved or as involving statements which, in the Trial Examiner's view, were
not violative of the Act. As the General Counsel has filed no exceptions to these findings
we adopt them without necessarily adopting the reasoning of the Trial Examiner.
BRYAN MANUFACTURING COMPANY 1333
do not rely, as did the Trial Examiner, on the Respondent's publica-
tion and distribution of a booklet entitled "Employee-Management
Policies," on July 16, 1949, shortly after the Union had requested rec-
ognition: For the most part this statement of "Policies" seems to be
It codification of employment conditions and management policies
which were in existence, or were otherwise announced, prior to the
Union's demand' for recognition. The extent to which this booklet
announced employee benefits decided upon and announced subsequent
to the Union's request for recognition cannot be ascertained from the
present record with sufficient certainty to warrant a conclusion that
in promulgating the booklet the Respondent illegally announced new
benefits.5
2. We find, as did the Trial Examiner, that the Respondent inter-
fered with the formation and administration of the Employee Man-,
agement Policy Committee,6 and dominated that labor organization
in violation of Section 8 (a) (2) of the Act.
It is clear that the Committee was originally formed at the instiga-
tion of the Respondent, who, through its supervisors, threatened that
the plant would be closed or moved if an inside organization was not
formed. The Respondent thereafter designated the seniority method
by which employees were selected for the Committee, and, at least
in one instance, when certain employees failed to select a, representa-
tive from their department, the Respondent threatened to designate
one itself. Meetings of the Committees were held on 'company time-
and company property; the first few meetings were chaired by the
Respondent's plant manager and attended by other .representatives
of the Respondent. We note, moreover, that several of the threats
made by representatives of the Respondent, which we have found
above to have constituted violatiolis of Section 8 (a) (1) express
a determined opposition to any "outside" union. In addition, in dis-
charging employees Mow and Rinker for reasons which the Trial
Examiner found, as do we, were discriminatory, the Respondent rid
itself of two employees who had openly expressed opposition to the
organization of the Committees, and had favored an outside union.
Taken together, these factors leave no doubt as to the correctness
5 It is clear, however, that whether or not the "Employee-Management Policies" actually
announced any new terms or conditions of employment, it is a document in the nature
of a collective bargaining agreement, and was arrived at after at least "discussion" with
the Committee hereinafter found to have been dominated by the Respondent. As such,
although we do not find that issuing the booklet constituted an independent violation of
Section 8 (a) (1), we shall, in agreement with the Trial Examiner, order the "Policies"
set aside in remedying the violation of Section 8 (a) (2).
6 The designation hereinafter of this organization as the Committee refers to the three
separate committees whose organization and existence are discussed . in the Intermediate
Report . It is apparent that each successive Committee was no more than its predecessor
with a different name.
1334 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
of the Trial Examiner's conclusion that the Committees were domi-
nated by the Respondent in violation of Section 8 (a). (2) .7
3. We find, for the reasons fully set forth by the Trial Examiner,
that Richard N. Mow and Harold D. Rinker 8 were discriminatorily
discharged on May 27, 1949, in violation of Section 8 (a) (3) of the
Act.9 However, we do not agree with the Trial Examiner's finding
that the Respondent violated Section 8 (a) (3) and. 8 (a) (1) of the
Act by discharging Estelle P. Hurlburt and Maggie Van Meter.
Estelle P. Hurlburt was discharged on January 9, 1950. About 4
months earlier, just prior to the representation election, she had
spoken in favor of the Union in a conversation with her foreman, and
had been interrogated concerning her views with respect to the Union.
In the 4 months which elapsed between this incident and her discharge
there was no union activity to speak of in the plant. The Respondent's
defense is that Hurlburt was discharged for violation of a company
rule requiring that employees report their absence from work on the
first day that such absence occurs. The record discloses that such a
company rule did exist, and Hurlburt admitted that she did not report
on the first day of her absence in January 1950. And while the record
indicates that the rule had not always been strictly enforced in the
past, it also shows that during this same period several other em-
ployees were discharged for violation of this rule. Under all the
circumstances, including the time sequence, we are unable to find
that Hurlburt was not in fact discharged for violation of, this rule
or that the rule was discriminatorily enforced for the purpose of
providing a pretext for the discharge of a union adherent. We find
that the complaint as to Hurlburt is not supported by a preponder-
ance of the evidence, and we shall dismiss it.
Maggie Van Meter was discharged on January 10, 1950. Although
the record reveals that Van Meter had been one of the most active
union proponents-a fact known to the Respondent-she, like Hurl-
burt, continued to work for the Respondent for 4 months after the
election and the last antiunion conduct by the Respondent.
In reaching this conclusion , however , we, unlike the T rial Examiner , do not rely on
the incident involving employee white, discussed in the Intermediate Report . Granting
that white circulated throughout the plant speaking in favor of the organization of the
Committee , the record does not sufficiently establish either that the Respondent had
instructed him to do so, or that it was aware of what he was doing.
"The Intermediate Report does not adequately discuss the Respondent ' s knowledge of
Rinker's union activity . However , the record reveals that prior to his discharge , Rinker
had discussed his belief in the need for an outside union with Kuberly , his foreman, and had
actively solicited union membership in the plant . Furthermore the record also shows that
Mow, a known union adherent , was d close friend of Rinker , and that their common
sympathies and activities were known to Respondent.
9 For the reasons set forth in the Intermediate Report , we find that Mow and Rinker
were permanently discharged on May 27 , 1949 . Accordingly it is unnecessary to pass
upon , or make any findings with respect to the effect of the "alleged thirty day or year
layoff" seniority rule on any finding that these employees had only been temporarily laid
off on May 27.
BRYAN MANUFACTURING COMPANY 1335
The inunediate occasion for her discharge does not suggest an anti-
union motive. Van Meter had been unable to continue working be-
cause of comments made by employee Dolick. Van Meter's daughter,
Turner, had injected herself into the dispute and engaged Dolick in
.a heated argument serious enough to require the intervention of super-
visors. On that same day all three were discharged simultaneously,
and the parties stipulated that Turner and Dolick were discharged
for cause. On this record the only tenable conclusion is that Van
Meter was discharged for the same cause. We find that the complaint
as to Van Meter is not supported by a preponderance of the evidence,
and we shall dismiss it.
. 4. In view of the Respondent's threats, interrogation, and discrim-
inatory discharges which preceded the election of September 26, 1949,
we agree that the results of that election did not express the employees'
free choice and we shall set it aside. However, in so ruling, we do
not rely o11 the Trial Examiner's finding with respect to the alleged
padded voting eligibility list submitted by the Respondent. Without
deciding whether the individuals in question were supervisors within
the meaning of the Act, we conclude that the record does not support
a finding that the Respondent knowingly placed these individuals
on the voting list for the purpose of obtaining votes against the Union
and thereby influencing the election.10
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bryan Manu-
facturing Company, Monticello, Indiana, its officers, agents, succes-
sors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of, or contributing support to, Employees' Bargaining Commit-
tee (also known as Employee-Management Policy Committee) or any
other labor organization, and from otherwise interfering with the
representation of its employees through a labor organization of their
-Own choosing.
(b) Recognizing or in any other manner dealing with the Employ-
ees' Bargaining Committee (also known as Employee-Management
Policy Committee) or any successor thereto, as the collective bargain-
ing representative of any of its employees for the purposes of dealing
with the Respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or any other conditions of employ-
ment.
1 0 Cf. Vail Manufacturing Company , 61 NLRB 181.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Performing or giving effect to the Employee-Management
Policies Il or to any other contract, or to any modification, extension.
supplement, or renewal thereof, entered into with the Committee or
any successor thereto.
(d) Discouraging membership in International Brotherhood of
Electrical Workers, A. F. L., or in any other labor organization of
its employees by discharging any of its employees or discriminating
in any other manner in respect to their hire and tenure of employment,
or any term or condition of employment.
(e) In any other manner interfering with, restraining, or coercing
its employees in the execise -of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Electrical Workers, A. F. L., or any other labor organization, to
bargain collectively through representatives of their own choosing,,
and to engage in other concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from Employees' Bargaining Coin-
mittee (also known as Employee-Management Policy Committee) as
the representative of any of its employees for the purpose of dealing
with the Respondent concerning grievances, labor disputes , wages,
rates of pay, hours of employment, or any other condition of employ-
ment, and completely disestablish said organization as such represen-
tative.
(b) Offer to Richard N. Mow and Harold D..Rinker immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the Intermediate Report,
.attached hereto, in the section entitled "The Remedy."
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of back pay and the right of
reinstatement under the terms recommended in this Order.
(d) Post at its plant in Monticello, Indiana, copies of the notice
" However, nothing herein shall be construed to require that the Respondent vary or
abandon the terms or conditions of employment set forth in this document , or to prejudice
the assertion by the employees of any rights they may have thereunder. `
BRYAN MANUFACTURING COMPANY 1337
attached hereto and marked "Appendix A." 12 Copies of said notice,
to be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Thirteenth Region, in writ-
ing, within ten (10) days from the date of this order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent discharged Estelle
P. Hurlburt and Maggie Van Meter in violation of Section 8 (a) (3)
and 8 (a) (1) of the Act or that the Respondent violated Section 8
(a) (1) of the Act other than by the conduct described herein.
IT IS FURTHER ORDERED that the election held on September 26, 1949,
among the employees of the Bryan Manufacturing Company, Monti-
cello, Indiana, in Case No. 13-RC-782, be, and it hereby is, set aside.13
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT dominate or interfere with the formation or ad-
ministration of, or contribute support to, EMPLOYEES' BARGAINING
COMMITTEE (also known as EMPLOYEE-MANAGEMENT POLICY COM-
MITTEE) or any other labor organization of our employees.
WE WILL NOT recognize or in any other manner deal with EM-
PLOYEES' BARGAINING COMMITTEE ( also known as EMPLOYEE-
MANAGEMENT POLICY COMMITTEE ) or any successor thereto, as
the representative of any of our employees for the purpose of col
lective bargaining.
WE WILL NOT perform or give effect, to the Employee-Manage-
ment Policies or to any other contract, or to any modification,
extension, supplement, or renewal thereof, entered into with EM-
'Z In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words, "A Decision and - Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
ra When the Regional Director advises the Board that the circumstances permit a free
choice of representatives , we shall direct that a new election be held among the
Respondent's employees.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PLOYEES' BARGAINING ConnLITT'EF (also known as EMPLOYEE-
MANAGEMENT POLICY COMMITTEE) or any successor thereto.
WE WILL NOT discourage membership in INTERNATIONAL.
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., or in ally other
labor organization of our employees by discharging any of our
employees or discriminating in any other manner in respect to
their hire or tenure of employment, or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor`organizations, to join or assist INTERNATIONAL.
BROTHERHOOD OF ELECTRICAL `YORKERS, A. F . L., or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Richard N. Mow, and Harold D. Rinker, im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
suffered as a result of the interference, restraint, coercion, and
discrimination against them.
WE HEREBY DISESTABLISPI EMPLOYEES' BARGAINING COMMITTEE
(also known as EMPLOYEE-MANAGEMENTMENT POLICY COMMITTEE) as
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or any other conditions of
employment.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F . L., or any other labor
organization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the Act.
BRYAN MANUFACTURING COMPANY,
Employer.
By --------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for'60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
BRYAN MANUFACTURING COMPANY 1339
Intermediate Report and Recommended Order
Mr. Richard C. Swander, for the General Counsel.
Mr. Albert M. Stern, of Detroit, Mich., for the Respondent.
Mr. Kenneth Lee, of Indianapolis, Ind., for the Charging Party.
STATEMENT OF THE CASE
. Upon charges and an amended charge duly filed by International Brotherhood
of Electrical Workers, A. F. L., herein called the Union, the General Counsel of
the National Labor Relations Board,' by the Regional Director for the Thirteenth
Region (Chicago, Illinois), issued a complaint dated November 3, 1950, against
Bryan Manufacturing Company, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (2), and (3) and Section 2
(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act.
With respect to unfair labor practices the complaint as amended at the hearing,
alleged in substance that the Respondent violated Section 8 (a) (2)' of the Act by
sponsoring, promoting, supporting, interfering with, and, dominating the Em-
ployees' Bargaining Committee,2 herein called the Committee; Section 8 (a) (3)
by laying off, discharging, and failing and refusing to reemploy Richard N. M ow,
Harold D. Rinker, Estelle P. Hurlburt, and Maggie Van Meter because of their
concerted activities and membership in the Union and to discourage such member-
ship; and Section 8 (a) (1) by said alleged acts and by threats in connection
with union activity and opposition to the Committee, and by interference with a
Board-conducted collective bargaining election.
Upon the recommendation of the afore-mentioned Regional Director, in his
report on objections, that Case No. 13-RC-782 be consolidated with an unfair
labor practice proceeding for healing on the objections filed therein to the conduct
of the election, the Board, by order dated November 14, 1950, directed such con-
solidation. Copies of charges, complaint, order consolidating cases and notice of
consolidated hearing, and objections to conduct of election were duly served by
General Counsel on all other parties.
In its answer, the Respondent denied the allegations of the complaint with
respect to unfair labor practices. It was agreed at the hearing that such answer
be considered as the answer in the consolidated case.
Pursuant to notice, a hearing was held at Monticello, Indiana, from November
28 to December 7, 1950, inclusive, before the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. General Counsel and the Respondent
were represented by counsel, and the Union by its representative, and they par-
ticipated in the hearing; the Committee was not represented. All parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues.
At the conclusion of General Counsel's case-in-chief, the Respondent moved
to dismiss the complaint for failure of proof and on the further ground that the
Board had ordered consolidation without notice to the Respondent; these motions
were denied. They were renewed at the close of the hearing, when the latter
motion was denied for the stated reason that the undersigned would not under-
take to pass upon the Board's act in ordering consolidation. Decision was at
I The General Counsel and his representative at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board.
' It was stated at the hearing that the Committee as identified has no official name ; it
has been referred to by various names, among them Employees' Bargaining Committee,
and more recently Employee-Management Policy Committee.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time reserved on the other motion to dismiss, and said motion is now dis-
posed of in accordance with the conclusions and recommendations below. General
Counsel's motion, at the conclusion of the hearing, to conform the pleadings to
the proof in all formal matters was granted except, on the Respondent's objection,
with respect to amendment of the objections to the election; as to the latter,
decision was reserved. To the extent that the motion sought amendment of the
objections to the election, it is denied as set forth below.
Full opportunity was given to argue orally, and counsel made statements
on the record ; no briefs were filed although leave was granted to do so.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its principal office and plant in
Monticello, Indiana, operates plants in the States of Ohio and Indiana, where
it manufactures electrical wiring assemblies for use in connecting various elec-
trically operated units for the automotive industry and special wiring assem-
blies for radio and similar industries. The Respondent, in the operation of its
business, purchases large quantities of insulated copper, copper strips, solder,
and other materials for its Monticello plant from and through States of the
United States other than the State of Indiana. During the calendar year 1949,
the value of materials so purchased and transported was in excess of $100,000,
of which more than 50 percent was shipped to the Respondent's Monticello plant
from points outside of the State of Indiana. The Respondent, in the operation
of its business, sells large quantities of its finished products from its Monticello
plant into and through States of the United States other than the State of
Indiana. During the calendar year 1949, the value of finished products so sold
and transported was in excess of $200,000, of which more than 50 percent was
chipped by the Respondent from its Monticello plant to points. outside the State
of Indiana.
It was admitted and it is found that the Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was agreed and it is found that International Brotherhood of Electrical
Workers, A. F. L., is a labor organization and admits to membership employees
of the Respondent.
There was no such agreement concerning Employees' Bargaining Committee
(also known as Employee-Management Policy Committee) or its predecessors,
but on the basis of the evidence, which is detailed in the subsection entitled "The
alleged violation of Seotion 8 (a) (2)," it is found that the Committee is, and
its predecessors were, labor organizations admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have. been re-
solved ; findings are made herein on the basis of reliable, probative , and sub-
stantial. evidence on the record considered as a whole and the preponderance
of the evidence taken.
BRYAN MANUFACTURING COMPANY 1341
A. The alleged violation of Section 8 (a) (2)
Three committees ,' distinguishable as the first , second, and third committees,
were successively organized on company time and property in May and Tune
1949; and thereafter continued as the Employee -Management Policy Committee.
With respect to the various committees,' it was testified by witnesses for the
General Counsel and for the Respondent that their purpose and function were
to give the employees representation to weigh management 's problems ; to dis-
cuss wages , seniority , and conditions of employment ; to consider loss of business
and layoff of employees ; to present and discuss grievances ; to modify the work-
ing rules ; to reduce wages ; and generally to consider wages, layoffs , and terms
and conditions of employment. Personnel Director Taylor testified that the
Respondent discussed working conditions and grievances with the Committee,
but referred to such discussions as committee meetings rather than collective
bargaining . He testified further that the Respondent discussed with the Com-
mittee a Christmas party and other social items after July 1949. Whatever
social functions the Committee had, its status as a labor organization is further
indicated by reference to "direct bargaining " between the Committee and the
Respondent in an article in the September 1949 issue of "The Harness Race,"
a publication sponsored by the Respondent. The continuance of the Committee
and its broad functions belie Plant Manager Wagner's testimony that he sought
only to meet with representatives of the employees to work out a solution of
the critical financial problem which the Respondent faced in the spring of 1949.
Whether he furthered a company union is to be determined by what he and his
representatives did, not by what he said. Where there is great variance between
act and word, credibility does not attach to the latter. Further, where such
act and the word of others are in harmony, the latter will be credited.
Early in May 1949, Wagner arranged a meeting of all employees and at that
time and later to smaller groups urged ` the necessity of electing representatives
to a committee. He also, as did Collins, one of the foremen, threatened that
the plant would be closed or moved if the Committee were not formed and a
wage cut taken . Here were unlawful interference and support ; a upas tree
was being nurtured, to the roots of which an axe should at once have been laid.
But after the Committee was selected, Wagner chaired the first three of four
meetings ; other representatives of management also attended.
Selections to the Committee were based on seniority , the 'Respondent sub-
mitting lists prepared on that basis . While Taylor denied that he had "selected"
the designees, maintaining that he merely listed the names as they appeared
in order of seniority , the idea of preparing such lists and of basing selection on
seniority was clearly the Respondent's. So far from exculpating, himself, Wag-
ner's statement of intent and activity to avoid designation of representatives who
might be laid off because they "were laying off so close to the top" is an admission
of unlawful interference.0 Selection by the employees was purely ministerial,
the only departure from seniority occurring in the case of employees who were
unwilling to serve-and even, in such cases, according to Taylor, he told the vot-
' There was testimony that the committees and each of them were referred to as the
committee, the bargaining committee, the grievance committee, and the labor-management
committee . Their functions rather than their names are material to the issue.
' Except where it may be necessary to distinguish between them , all three of the
committees and any one of them will hereinafter be referred to as the Committee.
5 Some of his remarks and of other supervisory personnel, and their- credibility, are
considered in connection with Section 8 (a) (1) of the Act, infra.
6 In its policy statements subsequently issued and hereinafter referred to, the Respondent
has continued to provide that employee representatives are to be selected on the basis
of seniority.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing employees to select the nest in order of seniority. Further, on Mow's decla-
ration that he knew that two named representatives had. not been elected,
Wagner promised to "look into it"; an election was thereafter held, and the two
were not chosen. Mow himself was named a representative at the suggestion
.of a supervisor in Mow's presence, the employees "agreeing" without a vote. In
still another case, Wagner threatened to select a representative if the employees
in the department did not; they thereupon did. While he denied saying that
he would set up a committee if the employees did not, Wagner continued to urge
and encourage its formation, and deputized Taylor to proceed in that connection.
Interference is no less such when it is based on seniority. To the extent that
it relied on seniority, the Respondent was offering a reason or explanation for
its method of designation. The choice permitted the employees was limited
indeed. Employees may or may not look to seniority ratings ; an employer may
not point to such ratings to justify what would otherwise constitute a violation
of the Act. Interference, support, and domination are not permitted regardless
of the application of a seniority list : an employer may not designate or propose
employees' collective bargaining representatives.
All of the committees were sponsored by the Respondent, and the changes
from the first to the second committee, and from the second to the third were
prompted by the Respondent's belief that representation on the committees
should be improved and widened. The relationship between the Committee and
the employees is typified by Hurlburt's statement that she knew very little of
what the Committee was doing. (Her keenness and interest were marked.)
Further evidence of the Respondent's close connection with the Committee
is found in the fact that on the Monday following Wagner's afore-mentioned
speech to the assembled employees, maintenance man Harry White apparently
did very little work but spent the entire day speaking to people throughout the
plant and urging formation of a committee. This was in the face of the rule that
employees were not to go through the rooms to talk to people without permission
of Wagner or the respective supervisors, and the statement by the supervisor
of presses in the basement that he did not know where White got such permis-
sion. (As other employees did from time to time, White, on the intervening
Saturday, had worked on Wagner's house. General Counsel's claim of causal
connection in this latter respect was not established, however.) White admitted
that lie had violated the rules in going around as he did without permission,
but later maintained that he spoke to only 18 to 23 people that day about an
organization. It may be noted that there is no evidence of White's interest
or activity at any other time to explain or throw light on the leading part which
he, one of the low-ranking employees, played on that Monday, with the apparent
permission, spelled out by the absence of objection, of the Respondent. Various
departments selected representatives that day ; on the following day, Wagner
persuaded several, which had not acted, to do so.
That there has been no definition between the Respondent's role in the Com-
mittee and the work of the Committee itself and that such situation has con-
tinued are further manifest from consideration of the so-called policy statement,
published in July 1949, and its renewal with modifications a year later. Taylor
testified that they were published by the Respondent, their introductory remarks
so indicate, and Wagner declared that he told the employees that, while suggest-
ing that they select representatives, he did not want to form a company union
.and there would be no contracts ; 7 all of this despite Taylor's testimony that the
The
statements set forth the method of selection of employee representatives and
their substitutes . This conflicting evidence reflects on the credibility of both Taylor and
Wagner.
BRYAN MANUFACTURING COMPANY 1343
statements represented the result of committee discussions, they were issued by
both the Respondent and its employees, and they reflected changes which the
Committee wanted, and the argument that the policies were printed after con-
sultation with employees individually and in groups.
Wagner believed that, with the Committee as organized, if the employees paid
dues, they "would have a semblance of some kind of a corrupt union or company
union." Payment of dues is not determinate; absence thereof does not validate
unlawful support and domination. _
It has been found that, in connection with the Committee, the Respondent
provided meeting facilities, urged and sponsored the designation of representa-
tives, presided at meetings, and threatened removal and closing of the plant. By
such activities, the Respondent dominated and continued to dominate the Com-
mittee, and thereby violated Section 8 (a) (2) of the Act.
B. The alleged violation 8 of Section 8 (a) (1)
1. Threats and interrogation a
As more fully described infra in connection with their discharge, Mow and
Rinker commenced activities on behalf of the Union about the middle of May
1949. Shortly thereafter Joe Palnik, coming on Mow and Bunnell while they
were discussing the need for outside representation, threatened them with dis-
missal and later warned that it didn't pay to go against Wagner "because he
always wins in the end." 10
Bunnell testified that a week or two after Mow left, Wagner said to him as
they were going into the machine shop that if Mrs. Mow didn't stop talking to
the women, trying to organize them, he would have to let her go. Wagner
denied that he made any such statement, but, as indicated. herein, his testimony
is not reliable ; Bunnell's statement is accepted.
Uncontradicted testimony was received concerning a threat by Foreman Rus-
sell (George) Christensen, who on the clay before the Board-conducted election
told a group of. employees "that if the union was put in there that the plant was
going to move away, and he said [they] would be better to go ahead and work
as [they] were and have work than to elect a union and have no job at all."
Mrs. Mow testified that Foreman Collins, on the morning of the election,
asked several employees how they felt about the Union and how they thought
the election would turn out. In this she was corroborated by Hurlburt, who
testified further that Collins said that the plant would move out if the Union
got in, and argued with her concerning possible benefit. This latter, in the con-
text of his other remarks, constitutes, as do those others, unlawful interfer-
ence. Collins denied that he ever "opened" a conversation on the subject of
unions and declared that in expressing an opinion he stated that it was his
personal opinion. Apart from the fact that he did not deny either interrogation
or threats, it may be noted that such interference by a representative of man-
agement is no less so because it is described as. "personal."
It is found that, by threats and interrogation, the Respondent interfered with,
restrained. and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
8 "Independent," so-called, as distinguished from."derivative" 8 (a) (1).
0 Several instances were alleged as violations of Section 8 (a) (2) of the Act, and have
been considered above.
10 Palnik's explanation is hereinafter analyzed..
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Other interference prior to the election
On or about July 7, 1949, the Union by letter requested that the Respondent
meet with it as representative of the production and maintenance employees,
and filed with the Board a petition for certification.
It appears clearly enough and it has been indicated in connection with the
question of the Respondent's support and domination of the Committee that
issuance of the statement of "Employee-Management Policies" on July 16. 1.949,
followed consultation between the Respondent and its employees. For present
purposes it is immaterial whether the statement be considered the product
of joint effort or the Respondent's work alone : announcement thereof approxi-
mately a week after the Union's request for recognition constituted interference
with rights of employees to self-organization."
The Respondent committed further interference of a similar nature When it
granted a wage increase at about this time. Layoffs had previously been made
and there had been a limited wage cut early in June. Taylor admitted knowledge
of organizational activities on receipt of a union handbill on June 17. An in-
crease in the night shift pay was made effective on July 11. No explanation
was offered for the timing of the increase so soon after the commencement of
organizational activity and the demand for recognition, and in the face of the
layoffs and wage cut. It is reasonable to conclude that the increase was
prompted by such activity and the Respondent's desire to lessen incentive there-
for. It is found that the increase, granted and made effective 3 days after
receipt of the Union's demand for recognition, constituted interference within
the meaning of Section 8 (a) (1) of the Act."
3. Interference at the election : the "loaded" eligibility list"
Representatives of the Respondent, the Union, and the Board met on August
9, 1949, for a preliminary discussion looking to a consent election. At that
meeting, the Respondent submitted a list of employees on the factory payroll
for use in the election. Another meeting was held on September 14, at which
time a stipulation was entered into for a consent election, the appropriate unit
to be
All production and maintenance employees, including janitors and including
all such employees in temporary lay-off status, EXCLUDING all office and
clerical employees, professional employees, guards and supervisors as
defined by the Act.
In the official voting list submitted by the Respondent at the election, September
26, were included for the first time 11 employees who, it is charged, were
supervisors." (General Counsel pointed to 17 supervisors on the voting list.)
To meet the evidence that, by "loading" the eligibility list with supervisors,
w!ho were ineligible, it interfered with its employees' right to choose collective
bargaining representatives, the Respondent urged that these were "working
supervisors" ; they carried material" and assisted employees under them. They
may even have spent more time on production than on supervisory work, as
Minnesota Mining & Manufacturing Company, 81 NLRB 557.
12 I bid.
13 The other violation alleged to have occurred at the time of the election (omission of
Mow and Rinker from the eligibility list and their treatment as discharged employees) is
.covered by the finding, infra, that they were discriminatorily discharged.
14They will be referred to as supervisors without prejudice to the determination of the
issue concerning their status.
15 Taylor testified that foremen, who are admittedly supervisory personnel , also carry
material.
BRYAN MANUFACTURING COMPANY 1345
Taylor testified. But the statutory definition does not exclude nonsupervisory
or production duties. The issue is whether and to what extent the given em-
ployees performed supervisory duties.
It appears that they transfer employees from one job to another as the
work requires and from one department to another , although Robinson testified
that supervisors transfer employees from job to job within a room only, their
authority being limited to a single room ; they recommended employees for recall
after layoffs , the foremen or personnel department making the actual recall;
they effectively recommend promotions ; they authorize visits by their employees
to the first -aid room ; they warn employees who have committed minor offenses;
they tell or "direct" employees what to do next, avoiding gaps between jobs. It is
.also reasonable to conclude that since most 16 had between 17 and 35 employees
under them , their duty ".responsibility to direct" occupied a significant portion
of their time.
Robinson , while admitting that "sometimes the supervisor tells [employees]
and sometimes the foreman " tells them what the job is and how and when
it is to be (lone , injected another classification of "supervisor on a temporary
basis ," such being a working supervisor in the process of promotion to foreman.
He admitted that employees do not know of such an interim standing ; neither
apparently did Taylor, who maintained that supervisors are actually working
supervisors , and did not suggest the additional category which Robinson stated.
Further basis for a finding of supervisory authority in the supervisors is to
be found in the very number of employees and supervisors . Taylor testified
that there are some 327 rank -and-file employees and 5 foremen ; supervisors, of
whom there are some 12 or 15, are intermediate.17
Also significant is the very fact that 11 of such supervisors who, as noted
above, were included in the Respondent 's eligibility list were not named in the
payroll list submitted a month before for the purpose of comparison with union
cards to arrange a consent election . Taylor, who supervised the preparation
of the lists , and declared that he was unable to explain the addition of these
names, (lid not explain their omission from the earlier one.
The Respondent made an attempt to shift on the Union the onus for the
addition as Taylor testified that he asked Lacey, the union representative,
whether salaried supervisors were eligible and was told that they were not. The
attempt thus to justify the inclusion of nonsalaried supervisors must fail since
Taylor himself testified that he did not recall any., discussion concerning them,
Lacey denied that there had been any discussion concerning supervisors, and
the formal " Stipulation for Certification upon Consent Eelection" excluded all
supervisors without any suggestion of a private definition or the existence
of supervisors so-called who were not supervisors . True, Wagner , introducing
the element of hourly rate, testified that Lacey agreed that working supervisors
would be permitted to vote ; but in the face of the oral and written evidence to
the contrary, this serves but to help appraise Wagner's credibility.
Finally, that the working supervisors "are not integrated with the girls on,
the particular line that they work with," as Taylor testified, suggests that they
had a different status. Such status might still be nonsupervisory , and when
further information was sought on the point , Taylor declared that supervisors,
omitted from the various department or group lists used in the June elections
of representatives , were not , included in any other seniority lists prepared at
that time ; in fact, they did not vote "because the problems of their employment
16 Lohrman, who did not have such a staff , called on employees in other departments.
There were a few other exceptions.
17 Cf. Donnelly Garment Company, 50 NLRB 241.
953841-52-vol. 94-S6
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are taken up directly with the foremen and the plant superintendent." In the
light of that exclusion and the explanation therefor, the undersigned does not
credit the defense that the supervisors were thereafter in good faith included
in the eligibility list for the September collective bargaining election. The
picture is quite clear : Where there was no question of free choice of repre-
sentatives, where the employees were asked to "sponsor" a wage cut without
supervisory assumption of that responsibility, and where the rank-and-file em-
ployees would readily recognize the presence of outsiders in the person of
supervisors, such supervisors were not eligible to vote ; where, on the other
hand, votes were to be totaled to determine a freely chosen representative,
such supervisors were listed as eligible. The Respondent, although privileged to
express its preference for or against the Union, had no right to sponsor ineligibles.
It is found that while lower than foremen in the scale of authority, those
employees who were variously referred to as supervisors, assistant supervisors,
working supervisors, and group leaders, and more specifically the 11 whose
names had not previously been submitted on the payroll list but appeared on
the voting list for the representation election( of September 26, 1949, were
supervisors' within the meaning of the Act. Their inclusion by the Respondent
and its submission of the list immediately before the election in the face of the
stipulation and direction excluding supervisors, constituted interference within
the meaning of Section S (a) (1) of the Act.
4. Allegations not proved
Paragraph 6 (c) (3) of the complaint alleges that during the week preceding
the Board election Foreman Palnik threatened plant closing and resultant loss
of homes and personal property if the Union got into the plant. The only
evidence which appears to be related to this allegation is Bunnell's statement
that in a discussion concerning the election Palnik, who had just built his home,
"was pretty down-hearted about it" and said that, if the Union came in, he
(Pa.lnik) "would possibly have to sell everything he had and go somewhere
else." This testimony may be considered evidence of and a basis for Palnik's
antiunion attitude ; but it is not a threat.
With respect to the allegation in paragraph 6 (c) (6) of the complaint that
the Respondent attempted to prevent watchmen-janitors from voting, while
there was indication of some delay, there was no evidence of substantial inter-
ference.
5. Statements which were not violations
Mow testified that at the last committee meeting which he attended Wagner
said that if the Committee didn't work,,an outside labor organization would try
to get in, it would cause trouble and expense, and the Company couldn't stand it.
If it be claimed that this is a veiled threat, and constituted further violation of
Section 8 (a) (2) of the Act under paragraph 5 (a) of the complaint;' the veil
is impenetrable. Wagner appears rather to have been expressing an opinion
without threat, the matter being clarified by Mow's subsequent reference,'' near
the close of General Counsel's case, to the same meeting and the fact that Wagner
there stated that if an outside organization came in, it would be more than the
18 Robinson admitted that Lawrie, one of the 11 added as noted, became a. foreman
about June or July 1949.
19 It is not alleged as a violation of Section 8 (a) (1) of the Act. It does, of course,
constitute support of the Committee, as found, supra.
20 He was correct in his impression that he had previously testified concerning this matter.
BRYAN MANUFACTURING COMPANY 1347
Company could afford and the union dues would be an added burden on the
employees.
Van Meter testified " that at a meeting in May Wagner declared that he didn't
think he'd want to bring in in outside organization or help: they should
straighten it out themselves. This is no more than a privileged expression of
opinion ; nor was it alleged in the complaint as a violation.
No more violative and likewise not alleged is the statement attributed by Van
Meter to Foreman Christensen that the Committee would straighten out any
difficulties which arose and that they didn't need a union.
6. Violations not alleged
Brief mention will be made of references to other violations, which will not
be found since they were neither alleged nor "fully litigated." n
Mow testified that on May 23 or 24 Wagner spoke to him about a union and
said that he had heard that Mow was starting one. This was not a mere
declaratory reference to a fact which all employer may properly make. Consid-
ering Wagner's expressed opposition to an outside union , reference to Mow's
activities personalized that opposition and thus tended to interfere and con-
stituted interference within the meaning of Section 8 (a) (1) of the Act. This
violation was not alleged, however, and will therefore not be found although
the facts are considered infra in connection with the Respondent's knowledge of
Mow's union activities as related to its discrimination against him.
Further, Van Meter testified without contradiction that Babb, the assistant
superintendent, told her that she was not his friend since she had been seen
associating with union representatives; if she were his friend, she "wouldn't do
things like that." Babb also told her if the Union took over, they'd have no
jobs. Such statements of a supervisor's displeasure,and of job jeopardy con-
stitute interference, restraint, and coercion within the meaning of the Act, but no
finding is based thereon.
C. The alleged violation of Section 8 (a) (3)
1.. Richard N. Mow and Harold D. Rinker
Mow was employed by the Respondent as a tool a'nd die maker from May 28,
1946, until May 27, 1949, except for a period of 3 months in 1947 when he quit
voluntarily and then sought and obtained reemployment. By general and merit
increases, his wage rate was increased from $1 to $1.51, per hour. Graham, a
first-class tool and die man, was his immediate superior until January 1949.
Thereafter he was directly responsible to his foreman, Joe Palnik.
Rinker was a maintenance man. He started at 70 cents per hour in April
1945 and was receiving $1.22 when he was laid off on May 27, 1949. He received
one merit and several general increases, and it'was conceded that he was a
satisfactory employee. He impressed the undersigned as stolid, perhaps slow-
thinking, but reliable. Rinker was responsible to "Old Jim" Kubly, now de-
ceased , who was in turn responsible to Joe Palnik.
At one of the committee meetings , when Wagner asked what the employees'
reaction was to the proposed wage cuts, Mow spoke up and said that they
wanted to know whose wages were to be cut. It is uncontradicted that Mow
n Mrs . Mow's recollection in this respect was hazy and innocuous.
22 Fulton Bap and Cotton Mills , 75 NLRB 883 ; Starrett Brothers and Eken, Incorporated,
'92 NLRB 1757.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussed the need for an outside union with Warren Palnik, Joe's son, and
told him that the employees needed more support than they could get from a
group within the plant. Mow spoke similarly to White, and these 'discussions
at his bench, carried on frequently in the month of May 1949 as well as others
with Rinker, who also favored an outside union, must have been known to
Palnik, whose desk was approximately 25 feet from Mow's bench.23 In fact,
Mow told several employees that he didn't think the Committee was a "good
faith" committee, and he actively solicited membership in the Union.
It appears that at a ball game about 2 weeks prior to their layoff, Mow and
Rinker, who "went around together quite a lot," were introduced to a representa-
tive of the Union, who gave Mow several authorization cards. The introduction
was effected by Barnes, another employee of the Respondent.
Mow testified further, as observed in connection with the Respondent's threats
and interrogation, that about May 23 or 24 Wagner told him that he had heard
Mow was starting a union; the latter was noncommittal. Joe Palnik said
that he had heard it also, when Mow related Wagner's. remark. Wagner denied
speaking to Mow or any other employee about a union; but Wagner was not
a reliable witness.24
Further, Mow testified that he not only spoke with Joe Palnik about the Union,
but that Palnik several times interrupted similar talks between Bunnell and
Mow. This latter was corroborated by Bunnell. Once, when Mow went down-
stairs to see Bunnell in connection with his work, Palnik followed and called him
up, saying that he had a job for him; the job was of a fill-in nature. About an
hour later, Mow met Bunnell in the rest room, and while they were discussing
the committee meeting of the night before and the need for an outside union,
Palnik came out from behind a partition and threatened that such talk would
lead to trouble.
Palnik, who claimed that he knew nothing-even about the activity in con-
nection with setting up of the various committees, testified that he had come
in to wash his hands and didn't hear any of the conversation between Mow and
Bunnell. He declared that his reference to "trouble" was in connection with
the work : Mow and Bunnell would discuss difficulties which arose, and he "was
referring to the die work, as the two work together." Elsewhere, in an attempt
to disparage Mow's work, Palnik testified that Bunnell and Mow were not in
contact with one another concerning die repairs or other work. The under-
signed credits their testimony that they discussed with each other daily their
work to be done, and that during such conversations they also spoke of organiza-
tional activities. Palnik knew of these - discussions and threatened trouble.
In. the light of the Respondent's interest in the Committee and Palnik's position,
the undersigned rejects as incredible the latter's further denial of knowledge
that Bunnell and Mow were members of the Committee or that the machinists
had selected Mow as their representative.
In addition to his talks with Mow, Rinker urged on White the need for an
outside organization, told him about the meeting with the union representative
at the ball game, and offered to get him a union application card. He also
discussed these matters with Kubly and with about 30 of the women.
Mow and Rinker were laid off on May 27. It is found that the Respondent
had knowledge of their organizational activities.
The testimony offered on behalf of the Respondent to justify Mow's discharge
is marked by contradiction and confusion. Taylor declared first that Mow
23 Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149.
11 References to Wagner's credibility appear elsewhere herein.
BRYAN MANUFACTURING COMPANY 1349
was laid off because of lack of work and because he could not do first-class
tool and die work. But Mow was neither regarded nor employed as a first-
class tool and die man. The quality of his work 26 and the esteem in which he
was held as a mechanic can best be judged by the fact that he received four
merit increases and was highly praised by Wagner himself. The witness Bunnell,
while generally confused, testified credibly concerning the parts which he
needed for his work : Mow made such parts, and did good work ; after Mow
left,-Bunnell himself and Barton did it,, and Warren Palnik was "worked in"
to try to make parts. There was evidently no lack of the type of work which
Mow had been doing,22 and this was further indicated by Foreman Joe Palnik,
who showed that his son Warren, who was junior to Mow in length of service,
undertook to do such work. (The latter was thereafter promoted to third-
class tool and die man, the classification which Mow had held.)
Taylor testified further that the Respondent offered Mow an opportunity to
do machine repair work at a lower rate of pay, but that Mow then refused and
was thereupon permanently laid off. Joe Palnik claimed that he offered Mow the
other job, but that there was no talk of a pay reduction. Robinson, the plant
superintendent, who testified that he or his assistant interviews all employees
before they leave, might have shed light on the question of an offer of another
job to Mow, but did not contradict the latter's denial of such an offer ; that
denial is credited.
The ostensible reason for Rinker's layoff was simple enough : He was told
that there was insufficient work, but that the layoff wouldn't be "too long" and
he needn't turn his tools in. But curiously, a few days later, another man,
Crisswell by name, was hired in Rinker's place. While it was testified. that
Crisswell had greater skill than Rinker, especially as a carpenter, it is clear from
the record that he did the same kind of maintenance work on which Rinker had
previously been engaged; despite the reason given Rinker, there is no evidence
that there actually was not sufficient work for him to do or that Crisswell was
employed and continued on the job because he performed functions which
Rinker could not do.
Joe Palnik referred to Mow as a "helper," and consistently minimized his
ability despite the recognition implicit in his rating and record of increases.
Palnik further suggested that his son, Warren, had greater skill despite his
lower rating and wage rate.. The reference to complaints concerning Mow's
work several years before is in marked contrast to Mow's apparent standing;
its remoteness heightens the impression that Joe Palnik was straining even in
disregard of the truth to justify an unwarranted discharge. The same tactic
was employed with respect to Rinker : He merely "helped," and despite the
variety of tasks which he performed without suggestion of shortcoming or
criticism, and although he was kept on while so many others were laid off,
there was allegedly no causal connection between the organizational activities in
which he started to engage and his layoff as employment started to rise sharply ; 27
thereafter there was no longer need for his services, and the man then hired to
maintenance work did not replace him!
zs He made two fixtures which did not work . But it was not claimed that he was
discharged therefor.
26 First -class tool and die work , which Graham had done until he quit in January 1949,
was apparently not continued or resumed until January 1950 , when Dutrach, another
first-class man, was hired.
27 Wagner testified to a drop in employment between January 1 and May 25, 1949, and
then added that employment picked up the latter part of August . Further questioning
disclosed that the pickup commenced on May 26 : a 50 percent increase occurred in June.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Further evidence that Joe Palnik's testimony is not to be relied upon is found
in his statement that his on was a third- or fourth-class die man when he joined
the Respondent whereas the employment record shows that he was a machinist
and was raised to fourth-class die maker 16 months later and 7 months after Mow
was laid off.)
(Another "uncertain sound" which may be mentioned is that found in Joe
Palnik's testimony concerning a sheet of paper which he may have seen, then
"did actually see," and which included the 30-day rule hereinafter referred to,
together with other rules although, lie testified later, the rule "could have been by
itself." 2N)
The record of satisfactory service rendered by Mow and Rinker and the con-
tinued need for their services despite the reasons offered for their termination
belie any reasonable likelihood that the decision to lay off the two employees 21 of
whose union activities the Respondent was then aware was not motivated by an
intent to discriminate against them for union activities.
Although the action taken on May 27 was apparently not temporary in either
case, but because the complaint alleges temporary layoffs followed by permanent
discharges, and because a great deal of testimony was directed to the validity of
that alleged sequence, the question will be briefly considered3° Despite the
contrary testimony of the Respondent's witnesses, the evidence appears to support
Mow's statement that he was told his layoff was temporary. While l:'alnik dellied
Mow's testimony in this connection, the latter (lid not receive his final, pay check
or turn in his tool checks at that time although Taylor testified that the Respond-
ent normally collects tool checks and gives an employee his final pay check at the
time when he is permanently laid off. Mow testified that Flory, then personnel
manager, told him that he might be back in a few days. Joe Palnik's explanation
that he did not know that Mow had tool checks is not credited; no more acceptable
is an indicated failure by the personnel office to see that a tool and die man's
checks are collected when his employment is permanently terminated.
With respect to Rinker, the Respondent's position is that had there been-work
for him, he would have been recalled. There is no contention by the Respondent
that he refused another job. As far. as he knew, he was laid off temporarily and
was subject to recall as he testified and as Taylor explained.
Although it has been found that Mow and Rinker were told that their layoffs
were temporary, their belief and the statements made to them in that connection
are not determinative. The issue is what the Respondent on May 27 intended
and effected. Were it found that the layoffs, or either of them, were temporary,
they would as such be violations of Section 8 (a) (3) of the Act since they were
discriminatory, as noted. The next overt act by the Respondent reflecting on
such layoffs occurred on August 9, when its list of employees omitted Mow and
28 That Palnik "never gave a thought" to Mow's union membership in another plant,
where all employees were union members, is not of present importance. His earlier attitude
of going along with management might as readily be considered as suggesting opposition
to union activities in the Respondent's plant. Attention must rather be directed to his
attitude and actions in 1949.
The undersigned in this Report refers in detail to the evidence and the basis for
credibility findings because such findings are uniformly in derogation of the Respondent's
witnesses.
29 Mow testified that another employee, Barnes, was also active in getting an outside
union. But beyond the fact that he introduced a union representative to Mow at a ball
game, the nature and extent of Barnes' activities were not described, nor was it shown
that the Respondent knew of such activities. Mow stated that Barnes' work did not bring
him near Mow's bench, where there was discussion of the need, for an outside organization.
° Analysis of the testimony in' this connection will throw further light on the credibility
of various witnesses.
BRYAN MANUFACTURING COMPANY I . 1351
Rinker. In the absence of evidence pointing to an intervening date, this would
under such circumstances be the date fixed as the time of further and permanent
.discriminatory discharge, unless credence be given to the existence of a 30-day
rule.
The policy statement issued in July 1949 made but general reference to employ-
ees remaining on the payroll after layoff 31 although Taylor testified that the
change from 30 days to 1 year was made shortly after July 16, 1949, the date of
that statement. Whenever the 1-year rule was adopted, had there been a 30-day
rule previously, one of these rules would have been included in the statement even
as the 1-year rule was included in the policy statement of July 1950.'
The Respondent suggested that the phrase "employees in temporary layoff
status" in the stipulation for certification meant employees who had been laid off
not more than 30 days prior to September 9, 1949. There is no more reason for
declaring that "temporary" indicates 30 days, than for insisting on 10 or 90 days.
Actually, to distinguish from those "permanently" laid off (this is the Respond-
ent's phrase), "temporary" suggests their availability for employment; and the
Respondent itself maintained that before September it had adopted the 1-year
rule. To support the 30-day limitation, which was revived in the eligibility list
submitted on September 26, Taylor testified that, in a conversation with the union
representative at the conference preliminary to the election, he referred to and
obtained consent to use of the "payroll list," a term which is confusing in view of
the Respondent's use of a "payroll," a "lay-off list," and an "availability list";
each of these terms has a special meaning which was disclosed at the hearing only
after lengthy and detailed questioning by the Respondent's counsel. The terms
of.the stipulation are common and understandable ; they refer to no "list." Their
meaning will not be altered by an alleged prior discussion which certainly was
not graced by the truth and the whole truth.
Bunnell's uncertain testimony concerning a committee meeting, the date of
which he did not recall, when the rule was changed from 30 days,to 1 year is not
very persuasive. Nor is light cast by Van Meter's testimony that she was told by
Mrs. Cowger, in the office, after a layoff or leave of absence of 7 weeks in 1946 that
another application was necessary, and by Franz, at that time plant superin-
tendent, that it was not; she (lid file another application but, as in other cases
hereinafter referred to, it does not appear that there was an; break in her
seniority.
True, Mow testified that when he sought reemployment and called on Joe
Palnik at his home in 1947, he knew that after a break of 30 days he vas
no longer on the payroll. But he later explained that he had misunderstood the
question and intended to say that he knew at that earlier time that he would
have to fill out another application since he had quit and regardless of the length
of time he had been out. But if Mow was confused in this connection or even
mistaken there need be no surprise. Despite his position of responsibility as a
department head, Palnik himself had no very clear idea of a 30-day rule. He
testified that the 30-day rule applied to Mow when the latter had earlier sought
reemployment of him although on that occasion Mow had quit ; that the rule
applied to both layoffs and quits. Later Palnik testified that it (lid not apply
to quits and therefore did not apply to Mow on that earlier occasion. This
confusion becarrle worse confounded when Mrs. Suiter, who is in charge of the
31 There was only a recall provision without time limit : ". . . The reverse order of the
layoffs will be followed when employees are called back to work."
12 In addition to the general provision as in the earlier statement, it declared that
"Employees ( sic) names will be removed from the payroll and seniority lists after one (1)
year's layoff.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records, testified that she was instructed concerning the 30-day rule
when she started. to work in personnel about a year ago, and that she had not
heard of it before, when she worked in the payroll section. Taylor testified
similarly that while he had been with the Respondent since 1945, he was not
"familiar With" the rule prior to the time he went into personnel work in 1949;
this despite the claim that the rule was in effect for several years prior to
July 1949.
Again, the Respondent's "Termination Record" for Rinker reads as follows :
"8-9-49-Permanent Layoff 5-31-49." Whoever made the entry did not know
or forgot that Rinker's "30 days" expired on June 26. Coincidentally, the date
noted, August 9, is the date when the Respondent first submitted a list of em-
ployees in connection with the Board election. Taylor attempted to explain
that a layoff, temporary when made, became permanent 30 days thereafter.
Predating a permanent layoff,, without notation of its earlier temporary nature,
is unusual, to say the least; but the time'lag of 21/2 months is itself inconsistent
with Taylor's explanation of a 30-day action.
Whatever doubt might yet persist concerning the existence of any 30-day
rule was removed when several employees testified that they retained their
seniority despite layoffs of more than 30 days, and that such seniority was
shown on the lists submitted by Taylor and used in the committee election of
June 1949. Those lists were available and at the hearing, but the Respondent
did not undertake to show that these employees were in error. It is found
that there was no 30-day rule at or shortly after the discharges of i\lay 27, 1949,
but that, as indicated in the policy statement issued shortly thereafter, laid-off
employees had a continuing right to return without loss of seniority.33
We are not here'limited to General Counsel's conclusion that Mow and Rinker
were temporarily laid off on May 27-this evidently based on the statements made
to them at the time; and that such layoffs became permanent prior to the election,
(in fact, by August 9) since their names were not included in the eligibility list.
The question of dates and nature of the action taken was fully litigated, and the
findings and conclusions in that connection are within the issues as tried and are
based on the evidence.
It is found that Mow was permanently laid off on May 27 despite the sugges-
tions to him that the action was temporary ; it is further found that Rinker was
permanently laid off on May 27, and that such acts were discriminatory dis-
charges within the meaning of Section 8 (a) (3) of the Act.'
33 Suiter 's statement that employees are kept on the payroll list for 30 days , and Taylor's
mention of their remaining on the payroll appeared to be contradictory . The element of
contradiction was removed ( leaving, incidentally , doubtful probative value) when under
further questioning Taylor stated that his reference was to "people that [they] think
are available . It does not necessarily indicate how long they have been off."
In a related matter, the Respondent 's counsel failed to reconcile the difference between
the total of 50 employees indicated by Respondent 's Exhibit 11 to have been laid off
between January 4 and June 6, 1949 , and the marked decrease in employment testified
to by Wagner . The matter was clarified only after additional questioning on the last day
of the hearing , when Taylor explained that the exhibit listed not all who had been laid off,
but only those who "never did come back."
In additioir to the references made elsewhere herein to the credibility of various
witnesses , it can be stated generally that in several instances where the testimony was
in conflict , the Respondent was in a position to submit records which might cast light
on the facts . But it was less than frank, as in the case of the question of maintenance
of seniority after layoffs of more than 30 days. In some cases , as already indicated,
further questioning of witnesses elicited pertinent information which has been of value
in finding the facts.
34 The findings that Mow and Rinker were told that their layoffs were temporary,
therefore serve only to resolve issues which were contested vigorously and at length, and
BRYAN MANUFACTURING COMPANY
2. Estelle P. Huriburt
1353
Estelle P. Hurlburt was a wire braider and was employed by the Respondent
since May or June 1944 except for periods totalling approximately 6 months. On
the morning of the representation election, in response to interrogation and a
threat (hereinabove detailed). by her foreman, Marion Collins, she made it clear
that she favored the Union and thought that it was needed. They were "plain
outspoken," and the discussion was "far from friendly."
From January 3 through January 6, 1950, Hurlburt was ill and absent from
work. On January 4 and again on the 5th or 6th, she asked her sister-in-law,
Mrs. Banes, who was also employed by the Respondent, to report her absence ;
.the latter testified that she made such reports to Collins, who said it would be all
right, and her testimony concerning the first report was corroborated by Mrs.
Garling, another employee, although Collins denied receiving any such word from
Banes. The latter explained further that at Collins' suggestion she reported to
Suiter in the personnel office on January 6, and was told to inform Hurlburt to
report to Suiter on her return.
There is no explanation other than that found in Banes' and Hurlburt's testi-
mony for Hurlburt's calling to see Suiter on January 9; Collins' testimony in this
connection was limited to the denial noted above that any report was made to him.
This denial as is not credited, nor is Suiter's statement that not until Hurlburt'
came in, on January 9, did she learn that Hurlburt had said, though not to her.
that she had reported in.
With respect to reporting in, Hurlburt testified that she "knew" and that it was
her understanding that it was not necessary to report unless the absence was for
more than 1 day. Without detailing the testimony of various witnesses in this
regard, it is.clear from the record that it was not customary to report absences
of a single day and sometimes of several days : Hurlburt had every right to rely on
the apparently loose practice which was customary. and which she had herself
previously followed without objection. • She testified further that on her return
she was told that the rule had been changed ; and various employees testified to
posting of a notice in that connection on the bulletin board for the first time
during Hurlburt's last absence. On behalf of the Respondent, however, it was
maintained that the rule enforced had been in existence for a long time and wa
included with the written rules submitted to employees when they were hired.
Mrs. Mow, the first employee questioned concerning them, denied knowledge of
such written rules. That, she made such denial and then identified her signa-
ture on a list containing the rules is not surprising. She had apparently signed
the list when she applied for employment 3 years before. As in the cases of
Van Meter and Hurlburt, who signed similar lists with their employment appli-
cations in 1945 and 1946, and of Turner, who signed-when she was first employed,
Mrs. Mow was not given a copy to keep. It appears further that these employees.
did not see the rules on the bulletin board prior to Hurlburt's absence. Plant
Superintendent Robinson, who could be expected to take an interest in the bulle-
tin boards and who testified that he knows what they contain' about 75 percent
of the time, admitted that he never saw posted that portion of the rules which
further to indicate credibility . These aspects apply also to the finding . that 'there was no
30-day rule, with the addition that the latter. finding reflects the permanency of the
discharges on May 27.
a When he testified that he thought it was on January 4 that Robinson asked him
whether; he had receivedta report on Hurlburt , Collins also-differed-from Robinson,- who
placed the time as subsequent to the discharge on January 9.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more than any other was the subject of controversy as the Respondent's warrant
for discharging Hurlburt.
It is not within the scope of this Report to consider the equity or practical
wisdom of basing a discharge on a policy which is unknown to an employee.
But it remains to be found that the policy did in fact exist. The rule cited,
applicable to all employees and violation of which was cause for discharge, reads
as follows :
(j) Failure to report for duty without bona fide reasons on the first day of
absence , and a report to factory office every third day thereafter.
Illness is, and Robinson so testified , a bona fide reason ; and Hurlburt 's absence
was due to her illness . Nevertheless Robinson declared it to be his interpreta-
tion of the rule that an employee must report on the first day of absence regard-
less of the reason. While a distinction is recognized between a wonderfully
fanciful interpretation of plain language and unlawful intent, the extent of
the aberration claimed ( for it must be claimed on the Respondent ' s behalf that
this is an aberration : its interpretation at the hearing cannot be sensibly main-
tained from the language which the Respondent adopted in. stating the rule)
may certainly throw light on the actual intent.
Maintaining that absence unreported the first day is sufficient reason for dis-
missal even if the absent employee thereafter reports and regardless of the
reason for the absence , whether it be illness of the employee or death in his
family ," Robinson declared that his investigation , limited to the question whether
Hurlburt reported on the first day of her absence, which was January 3, was not
made until she reported for work on January 9 . He corroborated. her testimony
that he told her that the Committee had discussed absenteeism ; but he denied
that such discussion prompted the discharge . Reference to the Committee's
discussion is far more probable as the putative reason for a new and severe policy,
as Hurlburt testified, than as a nondeterminative and unnecessary excuse in the
face of a long -standing policy which allowed for no excuses , as Robinson testi-
fied.3 7 Then, although he differed with Taylor in declaring that the foreman is
the first person notified when an employee reports absent , he checked with Collins,
Hurlburt 's foreman , only after she had been discharged ; and this despite his
denial that Hurlburt told him that her sister -in-law had reported to Collins.
He admitted that he could not now say why he made that check 38 This last
36 Robinson said that he did not investigate the reason for Hurlburt 's absence. The
severity of such a rule may be contrasted with the leniency described by Taylor in connec-
tion with the rule relating to substandard work, where warning is given , and that
forbidding "soliciting on Company time or premises without permission ," which was
flagrantly violated by white with impunity.
37 It appeared from examination of Robinson by counsel that failure to report on the
first day of absence leads to dismissal , later reporting being immaterial, and, despite the
express provisions of the rule which he cited as the basis for such action, regardless of
the reason for the absence . Under further questioning to clarify his testimony and to
determine his credibility , Robinson did not even attempt to justify or suggest any other
explanation ; he relied on a patent distortion of the rule . The alleged necessity to report
on the first day of absence was underlined by Sutter , who testified that on January 3,
the first day of absence , she inquired of the telephone operator and the foreman concerning
a report . It appears , however , that bars . Hess, another employee , was absent the week
of January 3 and , like Hurlburt , returned on the 9th . Sutter "later" found that Hess
had reported ; Hess was not discharged . Under the rule, Hess should have reported on
the 3rd ; but there is no explanation of any inquiry by Sutter on that day in her case;
or of Sutter ' s failure to receive the report from the telephone operator , who "had the
note on it ," or of the operator ' s failure in any event to transmit the information in view
of its extreme importance. .
33 In this connection again (see footnote 37, supra) further opportunity was given
Robinson to explain what appeared on the record to be inexplicable and therefore to cast
BRYAN MANUFACTURING COMPANY 1355
inability to explain is the only credible aspect of the entire story offered in
justification of the discharge. That the Respondent had and carried out the
policy which Robinson and Taylor described is as incredible in the light of the
evidence adduced as their so-called interpretation of the rule.
Further in this respect, Suiter testified that she was present when three other
employees were laid off for failure to call in on the first day of absence; 30 that
since she entered the Respondent's employ she has known of the rule requiring
such reporting regardless of the reason for the absence; that one of said em-
ployees was terminated after January 9, 1950, but that the cards of the other
two, who were laid off 2 months earlier, were marked "Quit without good reason"
although these employees did not quit; and that thereafter, after Robinson wrote
"Would not rehire" on these cards, and at his suggestion, she added the explana-
tion that they had failed to report absence on the first day. (In one case, she
inserted this explanation above her original notation.) The undersigned finds
that the card notations and Suiter's testimony concerning the reporting require-
ments were tailored for the occasion; they are not credited.
Since it appears that Hurlburt did not violate any rule, the collateral issue
whether warnings were customarily given to employees thus dwindles in im-
portance. The testimony on this point is conflicting,40 and findings, if necessary,
could be made only on the basis of the credibility findings hereinabove and later
noted. Hurlburt was discharged because of her sympathy for the Union and her
statement thereof, in violation of Section S (a) (3) of the Act, and it is so found.
3. Maggie Van Meter
Except for short layoffs and leaves of absence , Maggie Van Meter was em-'
ployed by the Respondent for approximately 5 years. Her work appears to
have been satisfactory , as were her relations with her , fellow employees, with
whom she "never had any trouble." She discussed the Union as -early as May,
took part in the organization campaign , solicited membership of 35 to 40 other
employees, and obtained authorization cards from several. She discussed the
Union while at work and in the presence of her foreman '41 who told her that an
outside union wasn 't needed and threatened removal of the plant . After the
September election , the assistant plant manager told her that she'd been seen
associating with union representatives . It is clear that the Respondent knew of
Van Meter 's union activities.
For several years she had been under a doctor 's care , and her last leave of
absence was for a week in mid-December 1949 . On January 10, 1950, another
employee , Mrs. Dolick , was put to work next to Van Meter after someone else
complained about Dolick and asked the supervisor to take her away. Dolick was
characterized as a busybody and a troublemaker , and she proceeded for about
doubt on his credibility . Had he been able to explain , he would have been removed from
an unenviable position ; his failure , on the other hand, supports the conclusion that his
statement of the reason for the discharge is not trustworthy.
' Whether there was a bona fide reason in these cases does not appear . Taylor referred
to some of them but did not recall the circumstances . The basis for his testimony was
the same as that offered by Suiter ; for the reasons indicated in the analysis of the latter's
testimony in this connection , Taylor's is likewise not credited . A further example of
Taylor's unreliability as a witness may here be cited : He testified that he would know
of any instance of error, when an employee was charged with failure to report on the
first day of absence when in fact he had reported , and that he did not recall any such
instance . That was prior to the testimony concerning Hess hereinabove noted.
•- 10 The Respondent's counsel brought out that it was common knowledge, attributable to.
the Respondent , that warnings were given after infraction of the rules and before discharge.
^1 She also protested to him that seniority was not being observed in layoffs.
1356 DECISIONS OF NATIONAL, LABOR -RELATIONS BOARD
an hour and a half to justify that reputation with the result that Van Meter,
who for the most part tried to ignore her, began to "shake and cry." The latter
was sent to the first-aid room, where she was given a sedative and sent to a
doctor, who in turn told her to stay home for a few days.
After this incident, Van Meter's daughter, Mrs. Turner, admittedly engaged
in an argument with Dolick during the lunch hour, and that afternoon Van
Meter, Dolick, and Turner "' were discharged, the latter being given her mother's
check.
The evidence indicates clearly that Dolick not only acted without authority
or warrant in interfering with Van Meter, but that she was wrong in her criti-
cism and that the supervisor had sustained Van Meter. Without consideration
of the Respondent's otherwise indicated motives, the circumstances of the trouble
on January 10, Dolick's reputation, and Van Meter's record indicate that the
Respondent could not and did not actually equate their actions. It is found
that Van Meter was discharged because of her known union activities," in viola-
tion of Section 8 (a) (3) of the Act.
It is found that-the evidence does not support the allegation of the complaint
that the Respondent refused to reemploy flow, Rinker, Hurlburt, and Van Meter ;
none of them sought reemployment. This is not to suggest that they were under
obligation to do so. Rather, it was the Respondent's duty to offer reinstatement
after it had wrongfully discharged them.
IV. THE CONDUCT OF THE ELEC'T'ION
The Union's objections to the conduct of the election 4 were neither as com-
prehensive nor as detailed as the complaint. In letter form, they did not men-
tion the threats by Palnik and Wagner, but otherwise included the independent
violations of Section 8 (a) (1) hereinabove found. As noted, General Counsel
included in his motion to conform the pleadings to the proof variances or omis-
sions in the objections to the conduct of the election ; the Respondent's counsel
opposed the motion, and decision thereon was reserved.
The objections sufficiently refer to instances of interference found herein. In
any' event, however, a post-election investigation is not limited to the issues
raised by the parties.45 The Respondent's objection is therefore sustained and
the motion is denied pro ta?I to on the sole ground that it is unnecessary ; all of the
interference hereinabove found is to be, and is; considered in connection with the
election.
The effect of such antiorganizational synergy is marked ; it here created an
environment which militated against and interfered with the free choice of a
collective bargaining representative.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic,'and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
42 It was stipulated that Mrs. Turner and Mrs. Dolick were discharged for cause.
43 The reason for discharge given to the unemployment compensation authorities by
several of the efnployees % was, as explained , the reason given them by the Respondent.
Van Meter testified that she showed the discharge paper which the Respondent had sent her.
44 With 327 eligible voters , 132 votes were cast for the Union , 149 against , 7 ballots were
challenged , and'2 were void.
11 See Hobart Manufacturing Company, 92 NLRB 203.
BRYAN MANUFACTURING COMPANY
VI. THE REMEDY
1357
Since it has been found that the Respondent has engaged in and is engaging
in certain.unfair labor practices affecting commerce, it will be recommended that
it cease and desist therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
It has been found that the Respondent's activities in connection with the Com-
mittee constituted domination of that labor organization in violation of Section
S (a) (2) of the Act. It will therefore be recommended that the Respondent
withhold all recognition from and disestablish " the Committee as the representa-
tive of any of its employees for the purpose of dealing with it concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment: and cease giving effect to the Employee-Management
Policies," or to any modifications, extension, supplement, or renewal thereof.
It has been further found that the Respondent, by discharging Mow, Rinker,
Hurlburt, and Van Meter, discriminated against them in regard to their hire and
tenure of employment in violation of Section S (a) (3) of the Act. It will there-
fore be recommended that, the Respondent offer to Mow, Rinker, Hurlburt, and
Van Meter immediate reinstatement to their former or substantially equivalent
positions."' without prejudice to their seniority or other rights and privileges,
and make there whole for any loss of pay they may have suffered by reason, of
the discriminatory action afore-mentioned by payment to each of them of a sum
of money which shall be computed 49 on the basis of each separate calendar quar-
ter or portion thereof during the period from the discriminatory discharge to the
date of a proper offer of reinstatement. The quarterly periods, hereinafter called
quarters, shall begin with the first day of January, April, July,_ and October.
Loss of pay shall be determined by deducting from a sum equal to that which each
would normally have earned for each quarter or portion thereof, his net earn-
ings," if any, in other employment during that period. Earnings in one partic-
ular quarter shall have no effect upon the back-pay liability for any other quarter.
It is also recommended that the Board order the Respondent to make available
to the Board upon request payroll and other records to facilitate the checking
of the amount of back pay due."
The Respondent has followed a pattern of domination interwoven with inter-
ference and embellished with discriminatory discharges. Such action indicates
a purpose to limit the organizational efforts of the Respondent's employees.
Such purpose is related to other unfair labor practices, and it is found that the
46 The Carpenter Steel Company, 76 NLRB 670.
r This is not intended to require that the Respondent vary or abandon the substantive
features of its relations with its employees, established in the performance of the Employee-
Management Policies, or to prejudice the assertion by the employees of any rights they
may have thereunder . ( Salant d Salant, 88 NLRB 816.)
98 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent positions " is intended to mean "former positions
wherever possible , and if such positions are no longer in existence , then to substantially
equivalent positions ." See The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827.
19 F. W. Woolworth Company, 90 NLRB 289.
so 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 , which would not have been incurred but for these unlawful practices, and
the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . .Monies received for work performed upon Federal , State, county, municipal.
or other work-relief projects shall be considered earnings. Republic Steel Corporation v.
N. L. R. B.. 311 U. S. 7.
11 F. W. Woolworth Company, supra.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
danger of their commission is reasonably to be apprehended. A broad" cease
and desist order will therefore be recommended, prohibitiug infringemuent in any
manner upon the rights guaranteed in Section 7 of the Act.
It has been further found that the unfair labor practices interfered with the
free choice of a collective bargaining representative in the election of September
26, 1949. It will therefore be recommended that said election be vacated a nd set
aside.
Upon the basis of the above findings of fact and neon the entire record in the
case, the undersigned makes the following:
CoNCLPSioNS of, LAW
1. International Brotherhood of Electrical Workers, A. F. L., and Employees'
Bargaining Committee (also known as Employee-Ala magemcnt Policy Committee)
are labor organizations within the nreiming of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
the Committee, and by contributing support thereto, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Richard
N. Mow, Harold D. Rinker, Estelle I'. Hurlbnrt, and Nlaggic Van Meter, thereby
encouraging membership in the Committee a nd discouraging nienaberslaip it the
Union, the Respondent has engaged ill and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of' the Act.
4. By such domination, interference, support, and discrimination, and by
threatening them with reprisal for union activity, iliterrogatih g them concerning
union sympathy, announcing a policy statenieut and granting wage increases and
other benefits shortly after and despite the l?uiou's demand to]' recognition, and
by including supervisors in an election eligibility list, thereby interfering with,
restraining, and coercing its eauployecs in the exercise of rights gulls aiitoed in
Section 7 of the Act, the Respondent loos engaged in mid is engaging in unfair
labor practices within the meaning of Section S (a) (I) o1' the Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted frunu publtcatiou in this voluu)e.]
ee C. Ray Randall i(annfactttring Company, 89 NLRII 140.
MONOLPr1l POR'I'I,.AND (i i1'N'r C0117':ANY anal 15OCAl, 550 , IN'l'P:HNA-
TIONAL UNION of MINE, 1\111,1, um) WollEEns, CIO
UNITED CEMENT , LIME AND G -vi,suM WORKI-AtS, Ll)CAI, 291, AFL and
LOCAL 550, INTERNATIONAL UNION O P` MINE, MILL AND SMEL'T'ER
WORKERS, CIO . Cases Not. I1-('.'L-35 arlyd 21-CB-189. Jove 20,
1951
Decision and Order
On July 27, 1950, 'Trial Exainirier Jtuue s R. Ileniiugway issued his
Intermediate Report in the above -entitled proceeding , fielding that the
94 NLRB No. 211.