Carrollton Metal Products Co.

National Labor Relations Board - Board Decisions

Apr 14, 1938

6 N.L.R.B. 569 (N.L.R.B. 1938)

In the Matter of CARROLLTON METAL PRODUCTS COMPANY' and AMAL-
GAMATED ASSOCIATION OF IRON, STEEL, & TIN WORKERS OF NORTH
AMERICA, LOCAL No. 1571
Cases Nos. C-307 and R-307.-Decided April 14,-1938
Cooking Utensil Manufacturing Industry-Interference, Restraint, or Coer-
czon-Di-scrimvnation : discharges and •lay-offs because of union membership
and activity ; charges of , as to certain employees , dismissed-Reinstatement
Ordered: of employees discriminatorily discharged-Back Pay : awarded, to
employees discriminatorily discharged and laid off--Investigation of Repre-
sentatives : controversy concerning representation of employees: refusal to
recognize petitioning union for fear of antagonizing rival organization-Unit
Appropriate for Collective Bargaining : production and maintenance employees,
except clerical and supervisory employees , office employees , foremen , and assis-
tant foremen-Prior Election Voided: election previously ordered without find-
ings of fact, and held in an atmosphere surcharged with threats and intimida-
tion by supervisory employees , declared void-Election Ordered: time to be set
by Board, after compliance with accompanying order and after disposition of
new charges.
Mr. Harry L. Lodish and Mr. Peter Di Leone, for the Board.
Mr. James M. Aumgst and Mr. John P. Walsh, of Canton, Ohio,
and Mr. David Kaplan, of Washington, D. C., for the Machinists.
Mr. Marion F. Lemen, of Carrollton, Ohio, and Mr. Aaron A.
Cohen, of Canton, Ohio, for the Amalgamated.
Lynch, Day, Pontius c Lynch, by Mr. H. C. Pontius, and Mr.
John G. Ketterer, of Canton, Ohio, for the respondent.
Mr. Harry Cooper, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
On May 17, 1937, International Association of Machinists, Local
No. 1280, herein called the Machinists, filed a petition with the
Regional Director for the Eighth Region (Cleveland, Ohio) alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Carrollton Metal Products Company, Car-
rollton, Ohio, herein called the respondent, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the-National Labor Relations Act, 49 Stat. 449, herein called the
Act. On June 7, 1937, Amalgamated Association of Iron, Steel, &
Tin Workers of North America, Local No. 1571, herein called the
• 569
570 NATIONAL LABOR RELATIONS BOARD
Amalgamated, filed a similar petition with the Regional Director.
On August 6, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act, and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice, and further ordered that the
cases be consolidated for purposes of such hearing.
On August 5, 1937, Marion F. Lemen filed a charge against the
respondent, and on August 13, 1937, the case thus sought to be insti-
ruted was consolidated for the purpose of hearing with the cases
arising on the petitions. On August 24, 1937, the Board, by the'
Regional Director issued and duly served its complaint and notice
of hearing on the respondent, the Machinists and the Amalgamated.
Pursuant to notice a hearing was held at Carrollton, Ohio, on
September 2, 1937, before William P. Webb, the Trial Examiner
duly designated by the Board. The case arising on the, complaint
was postponed. • The Board and the Machinists were represented by
counsel. The Amalgamated was represented by Marion F. Lemen,
its president. The respondent did not appear. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded to all parties.
The Board has reviewed the rulings of the Trial Examiner on
objections to the introduction of evidence during the course, of the
hearing and finds no prejudicial errors were committed. The rulings
are hereby affirmed.
At the beginning of the hearing counsel for the Machinists moved
for permission to withdraw the petition filed by the Machinists.
The Trial Examiner granted the motion, no objection being made.
The Trial Examiner was without power to grant this motion. How-
ever, in its order dated January 7,1938, the Board granted the request
of the Machinists to withdraw its petition. Counsel for the
Machinists also moved that the petition filed by the Amalgamated be
dismissed on the ground that no question affecting commerce had
arisen in the case. At the end of the Amalgamated's case, he renewed
his motion on the same ground and also on the ground that the
evidence did not warrant the holding of an election. Decision on
both motions was reserved by the Trial Examiner. For reasons
indicated below we hereby deny these motions.
Amended charges having been duly filed by the Amalgamated,
the Board, on September 21, 1937, by said Regional Director, issued
and duly served its amended complaint and notice of hearing upon
the respondent, the Machinists, and the Amalgamated. In substance
the complaint as amended alleged that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
DECISIONS AZND ORDERS 571
within the meaning of Section 8 (1) and (3) and Section 2 (6) and
(7) of the Act. The complaint -as amended specifically alleged the
discharge for membership and activity in the Amalgamated of Marion
F. Lemen, Frank Morrell, Jack Keane, Mervin Guess, Harold
Vasbinder, Joseph Blazer, Eugene Davis, Roy Henry, and Henry
Smallwood. On August 31, 1937, and September 27, 1937, the
respoiiderit filed its answer and amended answer to the complaint
and amended complaint, respectively. In its amended answer the
respondent admitted that it caused a large part of its raw materials
to be purchased in interstate commerce and a large part of its
products to be sold and transported in interstate commerce, but
denied the jurisdiction of the Board on other grounds. The amended
answer denied that Marion F. Lemen, Frank Morrell, and Harold
Vasbinder were discharged. It also denied that the other named
employees were discharged for membership in the Amalgamated
and alleged that they were discharged for cause.
Notice of postponement of the hearing was duly served on the
respondent, the Amalgamated, and the Machinists. Pursuant to
notice a hearing was held on October 11 and October 12, 1937, at
Carrollton, Ohio, -before William P. Webb, the Trial Examiner duly
designated by the Board. The Board and the respondent were
represented by counsel. Neither the Amalgamated nor the Machinists
appeared. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded to all parties. At the end of the Board's case, counsel
for the respondent moved to dismiss the complaint on the ground
that the evidence did not establish that it had engaged in any of the
unfair labor practices complained of, and also on jurisdictional
grounds. This motion was renewed at the end of the case, and the
Trial Examiner twice reserved ruling on the motion. In the Inter-
mediate Report which he subsequently filed, the Trial Examiner
denied the motion. For reasons indicated below we affirm this ruling.
During the hearing other rulings on motions and on objections to
the admission of testimony were made. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
After examining the record in the case, the Board concluded that a
question affecting commerce had arisen concerning the representation
of employees of the respondent at its Carrollton, Ohio, plant, and on
the basis of such conclusion, and acting pursuant to Article III, Sec-
tion 8, of its Rules and Regulations, issued a Direction of Election 1
on November 18, 1937, in which it found that all of the production
employees of the respondent at its Carrollton, Ohio, plant, except
14 N L R B. 142
572 NATIONAL LABOR RELATIONS BOARD
clerical and- supervisory employees, office employees, -foremen and
assistant foremen, constituted a unit appropriate for.the purposes of
collective bargaining. For the ' purpose of expediting the election
and thereby insuring to the employees of the respondent at its Carroll-
ton, Ohio, plant the full benefit of their right to collective bargaining
as soon as possible, the Board directed the election without at the same
time issuing a decision embodying complete findings of fact and con-
clusions of law. The Board further directed that in the conduct of
the election the following employees named in the case arising on the
complaint, to wit: Mervin Guess, Harry Smallwood, Marion F. Lemen,
Frank Morrell, Jack Keane, Harold Vasbinder, and Joseph Blazer,
alleged to have been discharged pursuant to an unfair labor practice
within the meaning of Section 8 (3) of the Act, be permitted to vote,
and that the ballot of each of the above-named employees be segregated
pending decision of the complaint case.
On November 29, 1937, the Trial Examiner filed his Intermediate
Report, finding that Eugene Davis, Roy Henry, Harry Smallwood.
Marion F. Lemen, Harold Vasbinder, and Joseph Blazer were dis=
charged because of membership in and activity for the Amalgamated',
recommending that the respondent make whole each of the employees
named for any loss of pay each suffered by reason of his discharge, and
that the respondent reinstate Lemen, Vasbinder, and Blazer to their
former positions. He also found that the evidence did not sustain
the allegations of the complaint with respect to Frank Morrell, Jack
Keane, and Mervin Guess. On December 4, 1937, the respondent, filed
exceptions to the Intermediate Report, which we have considered acid
find to be without merit except with respect to the case of Vasbinder.
Pursuant to the Board's Direction of Election, an election by secret
ballot was conducted on November 29, 1937, by the Regional Director
for the Eighth Region among the employees of the respondent con-
stituting the bargaining unit found appropriate by the Board. On
December 2, 1937, the Regional Director issued his Intermediate
Report upon the secret ballot, which was duly served upon the parties
to the proceeding.
As to the balloting and its results, the Regional Director reported
the following :
Total number of employees eligible ___________________________ 102
Total number of ballots counted _____________________________ 87
Total number of votes for International Association of Ma-
chinists, Local No. 1280 ------------------------------------ 53
Total number of votes for Amalgamated Association of Iron,
Steel , & Tin Workers of North America, Local No. 1571_______ 30
Total number of votes for neither organization________________ 4
Total number of blank ballots_______________________________ 0
Total number of void ballots_________________________________ 0
Total number of challenged votes____________________________ 13
DECISIONS AND ORDERS 573
- Since the challenged votes, which included the votes ordered segre-
gated by the Board in its Direction of Election , could not affect the
results of the election , we need not consider those votes.
On December 6, 1937, the Amalgamated filed objections to the ballot
and a petition for a , new election . The objections in substance alleged
that prior to the election the respondent through its supervisory em-
ployees and by other means waged a campaign of coercion and intimi-
dation against the Amalgamated and its members, and thereby inter-
fered with the freedom of the election. On January 4, 1938, it appear-
ing to the Regional Director for the Eighth Region that the objections
raised a substantial and material issue with respect to the conduct of
the ballot , he issued and caused to be served upon the respondent, the
Amalgamated , and the Machinists , a notice of hearing on the objec-
tions. Notices of two postponements of hearing were duly served upon
the parties . Pursuant to notice a hearing was held on January 26 and
27, 1938, at Carrollton, Ohio, before Waldo C. Holden, the Trial
Examiner duly designated by the Board. The Board , the respondent,
the Machinists , and the Amalgamated were represented by counsel and
all participated in the hearing . Full opportunity - to be heard, to
examine and to cross-examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties . During the course of
the hearing the Trial Examiner made several rulings on motions and
on objections to the admission of evidence . The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed . The rulings are hereby affirmed.
The Machinists , on January 29, 1937, and the Amalgamated, on
February 2, 1937 , requested an opportunity for oral argument before
the board on the record and exceptions taken at the hearing on the
objections to the ballot . Pursuant to notice , a hearing was held be-
fore the Board on February 9, 1938, in Washington , D. C., for the
purpose of such oral argument. Neither the Amalgamated nor the
respondent appeared at the hearing. The Machinists participated.
Upon the entire record in both cases, the Board makes the fol-
lowing :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Carrollton Metal Products Company is an Ohio corporation with
its principal office and plant in Carrollton , Ohio. The respondent
maintains a sales office in Chicago . The business of the respondent
is the manufacture of stainless steel cooking utensils and tin ware.
Approximately 50 per cent of the raw materials utilized by the re-
spondent in manufacture are purchased outside of the State of Ohio.
At least 80 per cent of the finished product of the respondent is
574 NATIONAL LABOR RELATIONS BOARD
shipped outside of the State of Ohio. The total amount of pur-
chases and sales by the respondent in the course of a year is more
than $50,000.
In its answer to the complaint the respondent admitted that it
purchased a large part of the raw materials which it used in manu-
facture, in interstate commerce, and that it sold a large part of its
manufactured product in interstate commerce. At the hearing the
respondent admitted that it was engaged in interstate commerce.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel, & Tin Workers of North
America, Local No. 1571, is a labor organization affiliated with` an
international union, Amalgamated Association of Iron, Steel, & Tin
Workers of North America, which is in turn affiliated with the Com-
mittee for Industrial Organization. The Amalgamated admits to
membership production and maintenance employees of the respond-
ent, except foremen, assistant foremen, and office employees.
International Association of Machinists, Local No. 1280, is a labor
organization affiliated with an international union, International As-
sociation of Machinists, which is in turn affiliated with the American
Federation of Labor. The Machinists admits to membership clerical,
supervisory, and office employees, in addition to production and
maintenance employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination in hire or tenure of employment
1. Background
About the middle of March 1937, the Amalgamated began to or-
ganize the employees of the respondent. Soon after the commence-
ment of organization by the Amalgamated, employees of the respond-
ent formed the Carroll Metal Workers' and Decorators' Association,
herein called the Association.
On April 28, 1937, the Amalgamated notified Pfefferkorn, presi-
dent of the respondent, that it desired to meet with him for purposes
of collective bargaining and to discuss the reinstatement of several
discharged employees. The request was granted and Pfefferkorn met
with a committee representing the Amalgamated. He demanded a
list of members of the Amalgamated. The request was refused,
whereupon he refused to negotiate further with the committee. Be-
cause of the refusal to negotiate, the Amalgamated called a strike on
April 29, 1937. The strike lasted for 4 weeks. Several attempts were
made by the Amalgamated during that time to contact Pfefferkorn
DECISIONS AND ORDERS ig, 575
and Stevens, superintendent of the respondent. These attempts
were vain.
On or about May 12, 1937, while the strike was in progress, the
Association was dissolved and at the meeting at which the dissolution
took place, an organizer for the International Association of Ma-
chinists received from employees of the respondent there present,
applications for membership in his organization. The organizer
testified that he had been called to Carrollton by four employees of
the respondent, two of whom he knew to be machinists. At the
same time a charter was apparently applied for, though the record
is not clear on this point, and a new organization, the Machinists,
was formed.
A meeting between Pfefferkorn and Stevens and representatives of
the Amalgamated and the Machinists took place during the last week
in May 1937, when an agreement was reached whereby the respond-
ent agreed to take back all striking employees without discrimina-
tion because of union activity, pending a settlement of the strike.
Following the agreement, on or about June 1 the plant resumed
operations and employees returned to work. Within a few hours
after the renewal of operations, because of alleged violations of
the agreement, employees began a sit-down strike in the plant.
On July 3, 1937, following the granting of an injunction against
the strikers by the Common Pleas Court of Carroll County, Ohio,
the sit-down strike was terminated.
On July 6, through the efforts of the Regional Director for the
Eighth Region, an agreement was reached between the management
of the respondent and representatives of the unions involved whereby
the respondent agreed "to return all the usual workers to their regu-
lar jobs under regular conditions, as quickly as the completion of
inventory is made." Most of the employees returned to work pursu-
ant to this agreement.
The discharges discussed below must be considered in the light
of the record as a whole. From the whole record, the antagonism
of Pfefferkorn and supervisory employees of the respondent toward
the Amalgamated and its members is clear. This antagonism was
most clearly revealed at the hearing on the objections to the election
of November 29, 1937, hereafter discussed. Several of the.super-
visory employees directly concerned with the discharges set forth
below are members of the Machinists and active in its behalf, whereas
those employees alleged to have been discriminatorily discharged are
members of a rival organization. Moreover, the record indicates
that previous to the formation of the Machinists, members of the
Association, the purpose of which appears to have been to "keep the
outside union out of the plant", were permitted to solicit for the
576!,) NATIONAL LABOR RELATIONS BOARD
Association during working hours. Foremen in the plant also solic-
ited for the Association. The financial secretary of the Machinists,
and a member of the executive' committee testified that they had
previously been active in the Association. All of the above considera-
tions throw light on the motivating factors behind the lay-offs and
discharges as set forth below.
2. The lay-offs and discharges
Eugene Davis. The amended complaint alleges that Eugene Davis
was discharged on November 27, 1936, because of his membership in
and activity for the Amalgamated. The answer alleges that he was
temporarily laid off for disciplinary reasons.
Davis' testimony reveals that he was employed by the respondent
on July 31, 1935. At the time he was laid off, no union was in exist-
ence at the plant of the respondent, but Davis testified that he had
been talking to employees about organizing one. Lemen, president
of the Amalgamated, corroborated this testimony. Lemen testified
that he and Davis had conferred on the matter of union organiza-
tion at that time. According to Davis' testimony he had been "called"
twice by the respondent for talking about unions before his lay-off.
Immediately before his lay-off Davis' name had headed a petition
for higher wages which was circulated in his department. On No-
vember 25, 1936, he was laid off by Stratton, his foreman, who gave
as a reason that "your name headed that petition that was circulated
there for higher wages." Although the Amalgamated was not yet in
existence it is evident that Davis' organizational activity at that time
was a step in the direction of the formation of the Amalgamated.
Davis was reinstated on January 4, 1937. He testified that after
he was reinstated, Stratton, his foreman, told him that his name had
been brought up at the office in connection with the Amalgamated,
and that "he would bet his last dollar that I wouldn't give him any
trouble . . . and he said the coal miners had a wonderful organiza-
tion, but he said we didn't need one in the shop." Davis joined the
Amalgamated when it was first formed about March 20, 1937.
Stratton, foreman of the polishing department, testified that 2
or 3 weeks before Davis was laid off he had been lax in polishing
and had polished too roughly. Complaints had been received by those
who handled the work after him. No such complainants, however,
testified at the hearing. He also testified that Davis had been re-
hired in spite of his bad work because Davis was a friend of his, and
had promised to do good work. It seems that, after being rehired,
Davis' work was satisfactory, until a few weeks before the hearing,
when, according to Stratton's testimony, it began to get bad again.
Although Stratton would not admit that Davis was his best inside
polisher, he did admit that he would, sometimes take Davis, along
DECISIONS AND ORDERS 577
with other inside polishers, to set the piece-rate price. Stratton could
not remember saying anything to Davis with respect to the circulation
of the petition. Stratton did not deny the conversation with Davis
after the latter's reinstatement concerning the fact that his name had
been brought up at the office in connection with organization by the
Amalgamated. Nor is Davis' testimony that he \i-,is "called" twice
to the office for talking about unions, before his lay-off, controverted.
McLaughlin, assistant foreman of the polishing department, also
testified that Davis did poor work before his lay-off. On cross-
examination McLaughlin could not remember when Davis started
to make mistakes. McLaughlin admitted that a petition for higher
wages was circulated in his department and that some of his men
signed it, but as to whether or not Davis' name headed the list, he
"couldn't say to that." McLaughlin testified that he had seen Davis
on the picket line and knows "it was C. I. 0." Both Stratton and
McLaughlin are members of the Machinists and previously belonged
to the Association.
Stratton's admission that he would sometimes take Davis to set
the piece-rate price is inconsistent with hiss other testimony and that.
of McLaughlin concerning Davis' poor work. In view of that fact
and in view of the circumstances of Davis' lay-off, as set forth above,
we are of the opinion that Davis' allegedly bad work was not the real
motive behind his lay-off. We find that the respondent laid off
Eugene Davis on November 25, 1936, because of his activity on behalf
of organization in the plant looking toward the formation of the
Amalgamated, and thereby discriminated against him with respect
to hire and tenure of employment, for the purpose of discouraging
membership in the Amalgamated.
Roy Henv y. The amended complaint alleges that Roy Henry was
discharged by the respondent on March 22, 1937, because of mem-
bership in and' activity for the Amalgamated. The answer alleges
that Henry was laid off temporarily for disciplinary reasons.
Henry testified that lie was employed by the respondent in October
1934, that he joined the Amalgamated in March 1937, being the fifth
one to join, that he was active in recruiting for that organization,
and that he was known by the respondent to be a member of it.
Henry was laid off on March 26, 1937. According to his testimony,
his foreman, Algeo, told him he was asked to lay him off, that "There
was union talk going around the shop . . . that `they' 2 had arrived
at the conclusion" that it was Henry. Algeo also told him that some-
one had made a trip to Canton to see an organizer, and that "they"
had come to the conclusion that it was Henry. Henry told him he
had not made the trip and asked him if his work was all right, and
2 Quotation masks supplied.
578 NATIONAL LABOR RELATIONS BOARD
Algeo said it was. Henry testified that his brother had made the
trip to Canton.
Algeo testified that the reason for Henry's lay-off was that he
bothered other men on the presses by talking to them during working
hours, and that that was strictly prohibited. When asked what he
said to Henry when he laid him off, Algeo testified as follows : "I told
him a few times before he was doing too much talking around to the
men on the presses and I was just going to lay him off. That was
all that there was to it." In spite of the "strict prohibition" against
talking in the plant, Algeo admitted that others in the department
talked, though not as often as Henry did, and he "saw Henry do it
more than other fellows." At the time of the lay-off Algeo had
Henry's check all ready for him, and admitted telling Henry that he
had been "told" to give him his check.
Stevens, superintendent of the plant, reinstated Henry on April
27, 1937, and told him that he had not been laid off for union activity.
Stevens had been absent from the plant when Henry was laid off.
Henry testified that between the time of his lay-off and the time of his
reinstatement, he had "filed charges" with the Board.
Algeo did not deny that Henry's work was satisfactory. In view
of that fact, the length of Henry's tenure of employment, the minor
nature of his offense in the light of Algeo's testimony, and the other
circumstances of his discharge as set forth above, we are led to believe
that the reason advanced by Algeo for his discharge was not the real
motive behind such discharge. That Henry was active for the Amal-
gamated is uncontroverted. It should be noted that Algeo at the
time of Henry's discharge was a member of the Association and that
at the time of the hearing of October 11, 1937, Algeo was a member
of the Machinists.
For the reasons indicated above, we find that the respondent laid
off Roy Henry on March 26, 1937, and thereby discriminated against
him with respect to hire and tenure of employment, in order to
discourage membership in the Amalgamated.
Mervin Guess. The amended complaint alleges that the respond-
ent discriminatorily demoted Mervin Guess on July 6, 1937, dis-
charged him on July 16, 1937, and has since refused to reinstate him.
The answer alleged that Guess was hired on March 29, 1937, and
laid off on April 5, 1937, due to lack of work ; that shortly thereafter
he was employed by a concern which was installing a sprinkler sys-
tem in the plant, that he worked for that concern until the strike of
April 29, 1937, that he returned to work for the concern July 6, 1937,
and that his employment with the concern terminated upon the com-
pletion of the installation of the sprinkler system.
The testimony of Guess reveals that he was employed by the re-
spondent from March 28, 1937, to April 4, 1937, and that he had
DECISIONS AND ORDERS 579
never before been employed by it. On April 5, 1937, he was laid
off and told there was no work. Within a few days, liis foreman sent
word to him that a sprinkler system was being set up in the plant
and that he had been recommended for a job with the concern en-
gaged in setting it up. He reported to his foreman who in turn
recommended him to the foreman of the sprinkler job.
Before the strike of April '29, 1937, the superintendent of the re-
spondent had asked him about taking a job spraying in the paint
shop. Guess worked on the sprinkler job until the strike. As soon
as the strike was over he went to the superintendent to ask him about
the paint shop job. He was told to finish the sprinkler job, and
that he would then be put to work in the paint shop. About 10 days
after the strike and a day after the completion of the sprinkler job,
Stevens told him there was no place for him at present, but that he
would be the next man hired in the paint shop. Guess testified that
he had never heard from Stevens since that time. He also testified
that another man had been hired for the paint shop job.
It does not appear that Guess was active for or even a member of
the Amalgamated. From the facts set forth above, we are unable to^
find that the respondent, by laying off Guess, discriminated against
him in regard to hire and tenure of employment, to discourage mem-
bership in the Amalgamated.
Harry Smallwood. The amended complaint alleges that Harry
Smallwood was discriminatorily discharged on April 16, 1937. The,
answer alleges that he was laid off temporarily for disciplinary rea-
sons. Smallwood testified that he was employed by the respondent
on March 26, 1934, as a trimmer and header on a lathe, that he ranked
first in seniority in the tin plate department, and that he was laid
off indefinitely on April 16, 1937. He joined the Amalgamated in
the middle of March 1937. He testified that he was recruiting mem-
bers for the Amalgamated 2 days before being laid off, and that lie
at that time had approached "two members of the A. F. L." who had
been in the plant for years and asked them to join the Amalgamated.
At the time he was laid off, Algeo told him, according to Smallwood's
testimony, that the reason for it was that he left his department
before the whistle blew. Smallwood testified that everyone in the de-
partment had been leaving before the whistle blew for a period of
6 months, ever since the building in which they were working had been
built. Smallwood admitted that he had been going outside for a
smoke, but testified that other employees also did it, and that Algeo
had not cited that offense as the reason for his discharge.
After the end of the strike, on July 6, 1937, Smallwood returned.
to work, and he was employed by the respondent at the time of the
hearing.
580 NATIONAL LABOR RELATIONS BOARD
Algeo, his foreman, was a member of the Association at the time
Smallwood was laid off, and at the time of the hearing was a member
of the Machinists. Algeo testified that Smallwood would stop his
work "and go and smoke" and that he had informed him "different
times" about that, but "that, of course, wasn't exactly -%vhat I laid him
off for." He testified that the reason for his lay-off was his habit
of leaving the building before the whistle blew, and that he had told
him about that at various times. Algeo did not deny that other
employees were in the habit of leaving the department before the
whistle blew as frequently as Smallwood did. Nor did he deny that
other employees went out for a smoke, as well as Smallwood. Nor
is it controverted that Smallwood was active for the Amalgamated,
although Alego denied that he knew of Smallwood's activity.
In view of Smallwood's length of tenure of employment, his senior-
ity in his department, the fact that other employees were in the habit
of leaving the department before the whistle blew, and other cir-
cumstances of his lay-off as set forth above, we are of the opinion that
the real motive behind his lay-off was not the one advanced by Algeo.
We find that the respondent laid off Harry Smallwood on April 16,
1937, and thereby discriminated against him with respect to hire and
tenure of employment to discourage membership in the Amalgamated.
Marion F. Lemen. The amended complaint alleges that Marion
F. Lemen was discharged by the respondent on or about July 6, 1937,
because of membership in and activity for the Amalgamated, and
has at all times since that date been refused reinstatement. The
answer denies that Lemen was discharged and alleges that he quit.
From Lemen's testimony it appears that he was employed by the
respondent on January 21, 1937, and that prior to the strike of April
29, 1937, he was engaged in working as a punch press operator and
shears man at 40 cents per hour. Lemen was instrumental in or-
ganizing the Amalgamated in the middle of March 1937 and about
that time was elected president. He has since been extremely active
in organizational activity on behalf of the Amalgamated. He was
the spokesman for the collective bargaining committee which at-
tempted to negotiate with,the respondent on behalf of the Amalga-
mated, and to discuss with it alleged discriminatory discharges of
its members prior to the strike of April 29, 1937.
Prior to the dissolution of the Association, Lemen had been solicited
by supervisory employees of the respondent to join the Association
and to sign a petition in favor of it. He had refused. Carmen, his
foreman, admitted having invited Lemen to go to a meeting of the
Association about April 1, 1937. Best, his assistant foreman, asked
him to go to an Association meeting at that time, and he did. Lemen
t estified that discussion at that meeting concerned the proposition
DECISIONS AND ORDERS 581
that an organization was necessary to "keep the outside union out of
the plant."
In view of his position with and activity for the Amalgamated and
his meetings with the respondent on its behalf, there is no doubt that
Lemen was 'well-known to the respondent and its supervisory em-
ployees as organizer and president of the Amalgamated. He testi-
fied that on April 1, 1937, Carmen told him to "use his head and get
out" of the Amalgamated. At that time, upon indicating his refusal
to leave the Amalgamated and to join the Association, he was laid
off for a day.
According to the agreement of July 6, 1937, among the respondent,
the Amalgamated, and the Machinists which ended the sit-down
strike previously referred to above, the respondent agreed to 'return
all the usual workers to their regular jobs under regular conditions as
quickly as the completion of inventory is made." The respondent
further agreed that there would be "no discrimination of any kind
made against those who have been participating in the recent labor
disturbances." Lemen went back to his old job on the punch press
on July 7, 1937. There were two punch press operators in his de-
partment at that time. Lemen testified that prior to the strike of
April 29, 1937, he had spent most of his time on punch presses or on
shears. He had also spent about 8 hours per month oiling and
wiping steel. It is undisputed that he had never operated an anneal-
ing furnace prior to July 7, 1937.
Lemen worked one-half day on the punch press. On the after-
noon of July 7, 1937, Carmen requested him to work on the anneal-
ing furnace. The furnace was not in the same department where
Lemen worked, although it was in the same room and under Car-
men's jurisdiction at that time. Carmen told him that he was
short-handed and that he was going to put him on the furnace.
Albright, the former furnace man, had not returned after the strike.
Lemen testified that Carmen said to him at that time "he wasn't
doing this to ^ me to try to be dirty, but he had to have a man on
there, and I had to be it." It is undisputed that Zurcher, another
employee in the department, had formerly regularly substituted for
Albright in the latter's absence. Lemen asked Carmen why he did
not put Zurcher on the job, and Carmen answered that Zurcher was
engaged at the time in doing an important job. It is undisputed
that Zurcher at the time was oiling and wiping steel. Lemen testi-
fied that oiling and wiping steel was the most common job in the
plant, and that he had often performed that job. According to
Lemen's testimony "the job (annealing furnace) paid forty cents an
hour. At better times during the past six months men had been
asked to take that job and it was refused." Lemen objected to being
582 NATIONAL LABOR RELATIONS BOARD
put on the furnace because "it was too hard; too much work for
one man, a new man at that." He agreed, however, to work the
furnace that afternoon. Carmen told him "he would give me help
on it, and he told me he knew it was tob much work for one man, and
he said he would help me, and . . . he helped me move one crate of
ware and suddenly found there was a lot of things to do." Lemen
worked for 41/2 hours on the furnace that afternoon.
The next morning he %vent to work on shears. About an hour
after he had started shearing, Carmen told him to go back to the
furnace. Lemen told him he did not want the job, that he could
not stand it. Carmen again said "he was putting me on it-not
because he wanted to be dirty, but because he had to. Lemen told
him that "under the terms of my agreement, my old job was there
waiting for me, nobody on it, and I wanted it." Carmen told him if
he did not want the furnace job he could go home. Thereupon
Lemen did so, on July 8, 1937.
Curtis Smith, employee of the respondent, testified that when his
foreman, Pauli, came to notify him after the strike to return to
work, Pauli said in a conversation with Smith and his wife, that
Lemen would be returned to employment with the respondent but
that "he would have to work."
Charles Davis, another employee of the respondent, testified that
at a picnic in July 1937 Stevens' (the superintendent's) son stated
to him "that they had got rid of Lemen and that when Vasbinder
got back from his trip ... and as soon as they got rid of Kemp-
thorne, they would be rid of the threw men causing trouble in the
union there."
On July 20, 1937, Lemen went to see Stevens, superintendent in
the plant, and was told that he had no work for him. On July 25,
Lemen went to the plant to obtain 2 days' pay owing to him, and he
was told by the janitor to get outside the building. At the time of
the hearing Lemen was employed by the Allied Products Corpora-
tion, Cleveland, Ohio. His employment there had begun 3 weeks
before the hearing. It does not appear how much he earned at
that employment.
Carmen, foreman of Lemen's department, testified that Lemen re-
fused to run the furnace and that he gave as a reason for this
refusal that the job did not pay enough, that "he wouldn't take it
at that price." Campbell, an employee in that department, testified
that Lemen told him the first afternoon during which he ran the
furnace, that he would not run it for 70 cents an hour and that
he would "quit his job first." Both Carmen and Campbell were
previously active in the Association, and Campbell is a member of
the Machinists. Carmen denied that a man had to have considerable
experience in running a furnace in order to avoid ruining material
DECISIONS AND ORDERS 583
put in it. However, he admitted that he took the trouble of teach-
ing Lemen how to run it because he "didn't want him to upset a load
in that furnace." He admitted that Lemen had never run the fur-
nace before . Lemen's testimony with respect to the strenuousness of
the work of operating the furnace and the fact that that work was
less desirable than the operation of a punch press does not seem to
be controverted . Moreover , Lemen 's testimony that "during the
last six months men had been asked to take that job and it was re-
fused" is not disputed. It is significant that Campbell, who took
Lemen's place when the latter left, worked on the furnace for one-
half day only. The respondent had, by the end of that time, hired
a new inexperienced man to run it.
Carmen and Campbell testified that oiling and wiping steel were
important operations in the plant, and that Zurcher, being engaged in
those operations, could therefore not be placed on the furnace. Car-
men and Campbell admitted, however, that Zurcher had formerly
substituted for Albright on the furnace in the latter's absence. More-
over, it appears that Lemen had formerly oiled and wiped steel, ac-
cording to his testimony, and Campbell admitted he had oiled and
wiped ware. Carmen, however, denied that Lemen had formerly oiled
and wiped "those plates" before (referring to plates Zurcher was
engaged in wiping). Whatever the importance of oiling and wiping
steel may be in the plant, and its importance is in dispute on this
record, it may be doubted that the operation of oiling and wiping
steel is as important as the operation of an annealing furnace; nor
is such a contention made by the respondent.
Carmen admitted soliciting Lemen to go to the Association meeting;
he, however, denied the conversation of April 1, 1937, in which, ac-
cording to Lemen, he had told Lemen to "get out of the Amalgamated."
He admitted knowing Lemen was president of the Amalgamated.
The fact that Lemen was active on behalf of the Amalgamated is
uncontroverted. The fact that his activities were known to the
respondent is clear. The statement of Pauli as testified to by Curtis
Smith is uncontroverted. The statement of the superintendent's son
as testified to by Charles Davis is uncontroverted.
From all the facts and circumstances set forth above and from the
record as a whole, we are led to believe that Lemen was intentionally
transferred to the operation of an annealing furnace, a job which was
clearly one of the most strenuous and one of the least desirable jobs
in the plant, for the sole purpose of bringing about a severance of his
employment with the respondent because of his union activity. Sev-
eral considerations point to that conclusion . The respondent's an-
tagonism to the organizational activities of members of the
Amalgamated is clear. Lemen was at the forefront of those activities.
With respect to the circumstances surrounding the choice of him as
80618-38-von vi-38
5S4 NATIONAL LABOR RELATIONS BOARD
the one to operate the furnace, especially with respect to the avail-
ability of Zurcher, an experienced operator, for that job, the testi-
mony of Lemen has the tone and detail about it which compels credit.
Moreover, the testimony of Curtis Smith and Charles Davis concern-
ing statements which indicate the respondent's motives is uncontro-
verted and worthy of belief when considered in the light of the record
as a whole. From all the circumstances we conclude that the selection
by the respondent of Lemen for the operation of the furnace con-
stituted discrimination against him with respect to the terms and
conditions of his employment. The respondent thereby having caused
him to leave his employment with it, in effect discriminated against
him with respect to hire and tenure of employment in order to discour-
age membership in the Amalgamated, and we so find.
Harold VCabinder. The amended complaint alleges that Harold
Vasbinder was discharged on July 25, 1937, because of membership in
and activity for the Amalgamated. The answer denies that he was
discharged and alleges that lie left on a vacation on July 27, 1937,
when told not to on pain of losing his job.
Vasbinder testified that he was employed by the respondent in
March 1931 in the shipping department. He joined the Amalgamated
in April 1937. He was first in seniority in his department. He was
notified by the foreman of his department to return to work after the
strike which ended July 6, 1937. He worked to July 29 and on that
date left on a vacation.
He first told his foreman that he was going on a vacation in June
1937. A week before going, his foreman asked him whether he had
not better reconsider it, and said that being out on strike was enough
vacation for anyone. Two days before he left, his foreman told
him "he would be sorry" if he took the contemplated vacation. Vas-
binder admitted that he knew what the foreman meant but testified
that he did not think he would lose his job, because of his seniority in
his department. It does not appear from the record that he was
entitled to a vacation as a matter of right, or that the respondent
had any schedule of vacations. It appears rather that Vasbinder
originally planned a vacation by voluntary arrangement with his
foreman. When he returned from his vacation on August 9, 1937,
he was told by his foreman that he was discharged.
We are unable to find from the above facts that the respondent
discriminated against Vasbinder with respect to hire and tenure of
employment in order to discourage membership in the Amalgamated.
Joseph Blazer. The amended complaint alleges that Joseph Blazer
was discharged by the respondent on September 2, 1937, because of
membership in and activity for the Amalgamated, and that the re-
spondent has at all times since refused to reinstate him. The answer
alleges that Blazer was discharged for cause.
DECISIONS AND ORDERS 585
Blazer testified that he was employed by the respondent in October
1936 in its shipping department, and that at the time of the alleged
discharge, there were ten employees in the department, and Blazer
ranked fifth in seniority. Blazer joined the Amalgamated in April
1937 and thereafter was elected financial secretary. He was a mem-
ber of the grievance committee of the Amalgamated and as a member
of that committee had met with the management of the respondent.
His foreman, Pauli, was present at one of these meetings, and also
admitted having seen him on the picket line.
Blazer was discharged on September 2, 1937. He vas told by Pauli
that he had made mistakes in taking inventory, and that "they were
letting those go who made mistakes in inventory." Blazer testified
that he began to work for the respondent at 35 cents per hour, that
within 2 months his wage was raised to 38 cents, that after the strike
ending July, 6, 1937, his rate of pay was raised to 46 cents and that
1 month before his discharge lie received 50 cents. His pay increases
were given to him without his asking for them.
Blazer testified that taking inventory was part of his job, that the
last time was the third time he had taken inventory, that the first two
times he had taken inventory together with another employee, but
that the last time he had been ordered to take inventory alone. He
admitted making four mistakes in taking inventory the last time. He
testified, however, that he had also made mistakes before, but nothing
had been said to him with respect to them. Davis, another employee
in the same department, testified that he had taken inventory in the
same department the same day that Blazer did, and had made half a
dozen mistakes, and that at the time of the hearing he was still em-
ployed by the respondent. Davis also testified that all employees
made mistakes in taking inventory. It does not appear that other
employees were discharged for making mistakes. Blazer also ad-
mitted that he had been reprimanded once before soon after he
started to work because "a few of the orders got mixed up." He testi-
fied, however, that at the time of his discharge, Pauli told him that
his work other than that of taking inventory was all right.
Pauli testified that Blazer made some mistakes in shipping and
that the last time inventory was taken, Blazer made six mistakes.
With respect to previous inventories, Pauli testified that it was
"pretty hard to check up on who. made the mistakes. I have caught
mistakes on the inventory. Some of them are Joe's (Blazer's). I
didn't keep any special record of them." Pauli thus admitted that
mistakes were previously made by others. He testified that it was
usually difficult to check on the person who made the mistakes be-
cause two men were usually assigned to the job of taking inventory
together. At the last inventory, however, Blazer, Davis, and another
586 NATIONAL LABOR RELATIONS BOARD
employee were assigned individually to take inventory of different
parts of the same department. Pauli did not deny that Davis had
also made a half dozen mistakes in inventory in the same depart-
ment the same day that Blazer did.
Pauli's testimony reveals that he was well aware of Blazer's ac-
tivity for the Amalgamated. In view of Blazer's seniority and the
increases in pay which he had received and which were not denied by
Pauli, it is difficult to believe that the motivating cause for his dis-
charge was the making of mistakes in taking inventory. It appears
reasonable to conclude from the testimony discussed above that such
mistakes are not unusual nor serious. Similar mistakes were not con-
sidered sufficient to cause discharge of other employees.
We find that the respondent discharged Blazer because of his
membership in and activity for the Amalgamated, and that the re-
spondent thereby discriminated against him with respect to hire and
tenure of employment to discourage membership in the Amalga-
mated.
Since his discharge Blazer has not found other regular employ-
ment. He has earned about $10.
Frank Morrell. The amended complaint alleges that Frank Mor-
rell was discharged by the respondent on July 6, 1937 because of
membership in and activity for the Amalgamated, and that at all
times since that date the respondent has refused to reinstate him.
The answer alleges that Morrell took other employment after the
strike which ended July 6, 1937, and continued to work there, with-
out applying for his former position until a period of several weeks
had elapsed and another had been hired in his place.
Morrell testified that he had been employed by the respondent 3
years as It sprayer, that he was first in seniority in a department
of five employees, and that he had never been told that his work
was unsatisfactory. He joined the Amalgamated about the middle
of March. He testified that Stevens, superintendent, had once asked
him whether "he was C. I. 0.", and he had said "yes."
Morrell admitted that before the strike of April 29, 1937, he told
Stevens he was thinking of quitting and going to work at a brick-
yard in which he owned stock. About 2 weeks after the strike began
he did go to work for the brick company. On July 6, and within
a few days thereafter, most employees of the respondent went back
to work upon the reopening of the plant. Morrell testified that "the
way we understand, the agreement was made, we all supposed to be
called back, notified." Although it appears from the record that
several employees were called back to work by foremen of the re-
spondent, it does not appear that only those so notified were taken
back, nor does the agreement itself indicate that the respondent took
DECISIONS AND ORDERS 587,
the initiative of calling back its employees.3 Morrell was not called
to work. He did not apply for his former position until a period
of 2 months had elapsed after the strike. Upon application he was,
told that the plant was "filled up," but that he should file a new
application.
From the facts set forth above, we are of the opinion that Mor-
rell's failure to secure reinstatement to his former position was due
to his own neglect to apply for such reinstatement. We, therefore,
find that the respondent has not discriminated against Morrell with
respect to hire and tenure of employment in order to discourage
membership in the Amalgamated.
Jacle Keane. The amended complaint alleges that Jack Keane
was discharged by the respondent on July 6, 1937 because of member-
ship in and activity for the Amalgamated. Keane was not available
to testify at the hearing, and no evidence was introduced in support
of the allegation of the complaint with respect to him. We, there-
fore, do not find that the respondent discriminated against Jack
Keane with respect to hire and tenure of employment in order to
discourage membership in the Amalgamated.
It is significant in the light of its antagonism to the Amalgamated
that by the discharges found to be discriminatory as set forth above,
the respondent severed from employment with it the president and
the 'financial secretary of the Amalgamated. It also temporarily
severed the employment of three active members of the Amalgamated.
It does not appear in the record that any employees were discharged
or laid off by the respondent during the period covered by the dis-
charges set forth above, other than those employees named in the
complaint. We find that the respondent discharged Marion F.
Lemen and Joseph Blazer and laid off Roy Henry, Eugene Davis, and
Harry Smallwood, because of their membership in and activity for
the Amalgamated, and thereby has interfered with its employees in
the exercise of their rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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 obstructing
commerce and the free flow of commerce.
S The relevant portion of the agreement reads as follows : "In order to effect the terms
of this mutual agreement the Company agrees to return all the usual workers to their
regular jobs under regular conditions as quickly as the completion of inventory is made.
The Company further agrees there will be no discrimination of any kind . . . On behalf
of the workers . . . the labor representatives assure the Company that the workers who
are returning to their jobs will faithfully perform their usual duties, etc."
588 NATIONAL LABOR RELATIONS BOARD
V. THE QUESTION CONCERNING REPRESENTATION
The Amalgamated filed its petition under Section 9 (c) of the
Act, on June 7, 1937, during the sit-down strike referred to above,
claiming to represent 80 employees in the plant, and stating that the
respondent refused to negotiate with it, on the alleged ground that
the respondent was afraid to antagonize the Machinists in so doing.
In the agreement of July 6 discussed above, the respondent stated
that it would present an answer on July 20, as to whether or not it
would submit to a consent election. At the time of the hearing on
the petition of the Amalgamated, the respondent had not yet con-
sented to an election. Lemen, president of the Amalgamated, stated
at the hearing that his organization desired that an election be held.
No evidence other than oral testimony was introduced at the hear-
ing of September 2, 1937, with respect to membership in either labor
organization.
We find that a question has arisen concerning the representation of
employees of the respondent.
All. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VII. THE APPROPRIATE UNIT
The Amalgamated contends that all employees of the respondent
except office employees, foremen, and assistant foremen, constitute an
appropriate unit for the purposes of collective bargaining. The finan-
cial secretary of the Machinists testified that his organization
admitted to membership and included among its membership clerical
employees, foremen, and assistant foremen. However, no objection
is made to the appropriateness of the unit contended for by thq
Amalgamated. No other evidence with respect to the appropriate
unit appears in the record. Under these circumstances, in accord-
ance with our usual procedure, we will exclude clerical and super-
visory employees, office employees, foremen, and assistant foremen
from the unit.
We find that the production and maintenance employees of the
respondent at its Carrollton, Ohio, plant, except clerical and super-
visory employees, office employees, foremen, and assistant foremen,
DECISIONS AND ORDERS 589
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit insures to employees of the respondent the
full benefit of their right to self-organization and to collective bar-
gaining and otherwise effectuates the policies of the Act.
VIII. TILE DETERMINATION OF REPRESENTATIVES
Upon the basis of the, facts set forth : above, the Board issued
its Direction of Election on November 18, 1937. Since the employees
of the respondent were out on strike from April 29 to July 6, 1937,
the Board directed that employees of the respondent on its pay roll
as of April 28 be entitled to vote.
In view of the intimidation at the plant during the week pre-
ceding the election as set forth below, it is clear that the question
of representation which has arisen, has not yet been resolved. A
new election is therefore necessary. On December 28, 1937, the
Amalgamated filed new charges against the respondent, alleging
that since July 1, 1937,, the respondent has been engaged in a delib-
erate campaign of discrimination and intimidation against members
of the Amalgamated and has been removing, laying off, and dis-
charging such members.
We shall not at this time set the date for holding an election but
shall direct that the election be delayed until such time as the Board
is satisfied that there has been sufficient compliance with its order
and until such time as disposition is made of the new charges.
IX. INTIMIDATION AND COERCION PRIOR TO THE ELECTION OF NOVEMBER
29, 1937
Pursuant to direction of the Board as stated above, an election
was conducted on November 29, 1937. Evidence adduced at the
hearing on the objections to the ballot reveals an atmosphere in the
plant during the week prior to the election which was surcharged
with intimidation and threats by supervisory employees of the
respondent against members of the Amalgamated. The events re-
cited below took place during that week.
About November 22, 1937, the purchasing agent of the respondent
brought into the shipping department of the plant about 10 copies
of the issue of the Cleveland Plain Dealer for November 22, 1937.
This issue carried on its front page a news article which recited the
impending liquidation of the Federal Knitting Mills Company,
Cleveland, Ohio. The article stated that a contributing cause for
the liquidation was a jurisdictional dispute between the Committee
for Industrial Organization and'the American Federation of Labor,
resulting in an election conducted by the Board which was won by
the former organization.
590 NATIONAL LABOR RELATIONS BOARD
Copies of the paper appeared in several departments of the plant.
Bernard Pauli, foreman of the shipping department, had the article
cut out of the paper, and showed it to Curtis Smith, an employee in
that department and member of the Aip l^amated. Pauli asked
Smith to read the article and to pass it around the department, which
Smith did. Karns, a foreman in the plant, showed the article to
Vern Miller, employee and member of the Amalgamated, asked him
to read it, and told him that the respondent would liquidate "if it
goes C. I. 0." in the coming election. Robert Illingsworth, member
of the Machinists and foreman of the spraying room, brought a
copy of the paper into his department and asked three employees
there, all members of the Amalgamated, to read the article. Carmen,
foreman of the press room, asked Zurcher, employee in that de-
partment and member of the Amalgamated, to take a copy of the,
paper home with him, and told him that everyone else in the depart-
ment had read the article. Zurcher was told that "if it went C. I. 0.,
they would liquidate, they would do just like in that paper here."
Copies of tho paper also appeared in the tin plate department, the
polishing room, and other departments.
Thus the threat of a shut-down if the Amalgamated won came
first from supervisory employees of the respondent. It was taken up
and spread by others in their efforts to restrain the Amalgamated.
On November 24 and 25,_ 1937, there appeared on the front page
of the Free Press Standard and the Carroll Journal, respectively,
newspapers of Carrollton, Ohio, a letter signed by the Machinists
and attacking the Amalgamated. The letter was headlined "Can Car-
rollton Afford To Lose Metal Products." Among other things, the
letter said, "If the C. I. O. dominates the election it means the plant
will probably close its doors in Carrollton and retire from business and
liquidate." C. A. Kerr, member of the Machinists, factory steward,
and head of the Shop Committee, was seen showing the above issue
of the Free Press Standard to employees in the plant during work-
ing hours a few days before the election.
Kerr testified that he wrote the letter and that it was printed by
the local newspapers without charge. He testified that shortly before
the letter was printed, he mentioned to Pfefferkorn, president of the
respondent, that he intended to have a letter published in the local
papers for the purpose of arousing sentiment in favor of the Ma-
chinists. Pfefferkorn at that time, according to his testimony, asked
Kerr not to make representations in the letter that any of the state-
ments therein were statements of the respondent. Pfefferkorn denied
that he had ever made any statements which «,ould justify the head-
line which appeared over the letter. Pfefferkorn, however, testified
as follows: "I would say the headline was only assumed. The Com-
DECISIONS AND ORDERS 591
piny made no such statement, that they were going to liquidate or
go out of business but that could be assumed that if we were going
to be controlled by a radical element that possibly we couldn't sur-
vive." His other testimony clearly indicates that by "radical ele-
ment" he was referring-to the Amalgamated.
While the respondent may not have directly participated in this
particular publication and its distribution, they were the normal
result of the previous activity of the respondent's supervisory em-
ployees and of its attitude toward the Amalgamated, expressed by
Pfefferkorn at the hearing, which, according to his own testimony,
was presumably common knowledge.
The record discloses several other instances of threats by the re-
spondent during the week prior to the election that the plant would
shut down if the Amalgamated won. Algeo, foreman in the plant
and member of the Machinists, came to Vern Miller's home on the
Saturday before the election and told Mrs. Miller that "if it went
C. I. 0., they would liquidate the shop." Zurcher was similarly
threatened several times before he was told to read the article above
referred to. Still other instances of intimidation appear in the record.
Charles May, employee of the respondent, during the week preced-
ing the election was told by his foreman, Karns, on November 26,
1937, "to use his head" before voting in the election. May let him
know that he would vote for the Amalgamated. Karns thereupon
told him that if he "voted C. I. 0., they would liquidate the plant
and shut her down." When May reported for work on the morning
of November 29, 1937, the day of the election he was discharged by
Karns and told that he "talked too much." Also on the morning of
the day of the election, Karns came to Vern Miller and said, "I want
you to vote for the A. F. L. If the C. I. 0. wins ... there will be no
work tomorrow." Miller asked him if that applied to everyone and
the answer was "yes." Miller told him that he could not vote for the
Machinists. Miller testified that that was "the last day I worked."
It is significant that most of the facts set forth above were not
controverted at the hearing on the objections to the election. It is
clear from such facts that the atmosphere in the plant during the
week prior to the election was full of threats and acts of intimida-
tion of supervisory employees of the respondent. An election con-
ducted under these circumstances could not reflect the free and inde-
pendent choice of the respondent's employees. We conclude that
such employees were not afforded an opportunity to choose represent-
atives, free from intimidation and coercion on the part of the respond-
ent, and that, therefore, the election of November 29, 1937, is null,
void, and of no effect.
592 NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in both cases, the Board makes the following :
CONCLUSIONS OF LAW
. 1. Amalgamated Association of Iron, Steel, & Tin Workers of
North America, Local No. 1571, and International 'Association of
Machinists, Local No. 1280, are labor organizations within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Marion F. Lemen, Joseph Blazer; Roy Henry, Eugene Davis,
and Harry Smallwood, and thereby discouraging membership in
Amalgamated Association of Iron, Steel, & Tin Workers of North
America, Local No. 1571, the respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (3) of
the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
- 4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
. 5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the` Act, with respect to Harold
Vasbinder, Frank Morrell, and Mervin Guess.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of Carrollton Metal Products Company, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
7. The production and maintenance employees of Carrollton Metal
Products Company at its Carrollton, Ohio, plant, except clerical and
supervisory employees, office employees, foremen, and assistant fore-
men, constitute a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9 (b) of the Act.
8. The election of November 29, 1937, is null, void, and of no
effect.
ORDER
- Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
Carrollton Metal Products Company, and its officers, agents, succes-
sors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of
Iron. Steel, & Tin Workers of North America, or any other labor
DECISIONS AND ORDERS 593
organization of its employees, or encouraging membership in Inter-
national Association of Machinists, Local No. 1280, or any other labor
organization of its employees, by discriminating against them in
regard to hire or tenure of employment or any term or condition of
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
`(a) Offer to Marion F. Lemen and Joseph Blazer immediate and
full reinstatement to their former positions without prejudice to their
seniority and other rights and privileges;
(b) Make whole Marion F. Lemen and Joseph Blazer for any loss
of pay they have suffered by reason of the respondent's discrimination
in regard to their hire and tenure of employment, by payment to each
of them, respectively, of a sum of money equal to that which he would
normally have earned as wages during the period from the date of
such discrimination to the date of the offer of reinstatement pursuant
to this order, less any amount earned by him, during such period;
(c) Make, whole Eugene Davis, Roy Henry, and Harry Smallwood
for any loss of pay they have suffered by reason of the respondent's
discrimination in regard to their hire and tenure of employment,
by payment to each of them, respectively, of a sum of money equal
to that which he would normally have earned as wages during the
period from the date of such discrimination to the date of his rein-
statement, less any amount earned by him during such period;
(d) Post immediately notices to its employees in conspicuous
places throughout its plant, and maintain such notices for a period
of at least thirty (30) consecutive days from the date of the posting,
stating that the respondent will, cease and desist as provided in
paragraph 1 (a) and (b) of this order;
(e) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.
And it is further ordered that the -allegations of the complaint
that the respondent has engaged in unfair labor practices within
the meaning of Section 8 (1) and (3) of the Act by discharging
Harold Vasbinder, Frank Morrell, Mervin Guess, and Jack Keane.
be, and they hereby are, dismissed.
594 NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
1, as amended, it is hereby
DIRECTED that, as part of the investigation directed by the Board
to ascertain representatives for the purposes of collective bargaining
with Carrollton Metal Products Company, Carrollton, Ohio, an elec-
tion by secret ballot shall be conducted at such time as the Board
shall hereafter direct as stated in Section VIII of the above decision,
under the direction and supervision of the Regional Director for the
Eighth Region, acting in this matter as the agent of the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among the production and maintenance em-
ployees of Carrollton Metal Products Company at its Carrollton,
Ohio, plant, excluding clerical and supervisory employees, office
employees, foremen, and assistant foremen, and excluding those em-
ployees who have since quit or been discharged for cause, to deter-
mine whether they desire to be represented for the purposes of collec-
tive bargaining by Amalgamated Association of Iron, Steel, & Tin
Workers of North America, Local No. 1571, or by International
Association of Machinists, Local No. 1280,.or by neither.