E. C. Brown Co.

National Labor Relations Board - Board Decisions

Jan 14, 1949

81 N.L.R.B. 140 (N.L.R.B. 1949)

In the Matter of E. C. BROWN COMPANY AND PRODUCTION LINE MAN-
UFACTURERS, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. 3-CA-17.Decided January 14,1949
DECISION
AND
ORDER
On July 12, 1948, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged, and were engaging, in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
The Board' has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following addition and
modification :
1. We agree with the Trial Examiner's finding that Respondents
E. C. Brown Company and Production Line Manufacturers, Inc., are
"in all material respects under the Act, a single entity." The record
clearly establishes that the latter is the alter ego of the former, and,
like the Trial Examiner, we are of the opinion that both Respondents
are responsible for the unfair labor practices in this case.2
2. We agree with the Trial Examiner's recommendation that the
Respondents should be ordered to reinstate the production and main-
i Pursuant to the provisions of Sect,on 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -man panel , consist-
ing of the undersigned Board Members [Chairman Herzog and Members Houston and
Gray].
R Matter of National Garment Company , 69 N. L R B 1208 , enf'd 166 F . ( 2d) 233
(C. C A 8), certiorari denied, 334 U S 845 Cf Matter of The Alexander Mxlbuin Com-
pany, 78 N. L. R. B. 747.
81 N. L. R. B., No. 22.
140
E. C. BROWN COMPANY 141
tenance employees who were discriminatorily locked out or dis-
charged, and who were not subsequently rehired. However, the Trial
Examiner also recommended that the locked-out employees be made
whole "by payment to them of a sum of money equivalent to that they
normally would have earned as wages from the date of the refusal
or failure to reinstate to the date of offer of reinstatement, less any
net earnings during said period." The General Counsel takes excep-
tion to this recommendation, contending that the employees who were
discriminatorily locked out or discharged are entitled to be made
whole for loss of wages from the date of the lock-out or discharge to
the date of offer of reinstatement. We agree with the General Counsel
and shall, accordingly, modify the recommended order of the Trial
Examiner.3
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 Respondents, E. C. Brown
Company and Production Line Manufacturers, Inc., both of Rochester,
New York, and their officers, agents, successors, and assigns, shall,
jointly and severally :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists as the exclusive representative of all production
and maintenance employees at the Respondents' plant at Rochester,
New York, excluding clerical employees, guards, professional em-
ployees, and supervisors as defined in the amended Act;
(b) Discouraging membership in International Association of
Machinists, or in any other labor organization of their employees, by
discharging, refusing to reinstate, or refusing to promote any of their
employees, or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of their
employment;
(c) Interrogating their employees concerning their union affilia-
tions, activities, or sympathies, or in any other manner interfering
with, restraining, or coercing their employees in the exercise of the
right to self-organization, to form labor organizations, to join or
assist International Association of Machinists or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to refrain
from any and all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
3 Matter of Rome Products Company, 77 N. L. R. B 1217.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed by Section 7 thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associa-
tion of Machinists as the exclusive representative of their employees in
the appropriate unit described above, with respect to grievances, labor
disputes, rates of pay, wages, hours of employment, or other conditions
of employment and, if an understanding is reached, embody such
understanding in a signed agreement;
(b) Offer Salvatore Guadaguino and all other production and main-
tenance employees on the pay roll of November 19, 1947, who have not
already been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and, upon reinstatement of
Michael Rittaco, offer him immediate promotion to the position of fore-
man discriminatorily denied him on November 19, 1947, or to a sub-
stantially equivalent position, dismissing, if necessary, any persons
hired after November 19,1947, and not in the Respondents' employ on
that date;
(c) Make whole Salvatore Guadaguino, Michael Rittaco, and all
other production and maintenance employees locked out on November
19, 1947, for any loss of pay they may have suffered by reason of the
Respondents' discrimination against them, by payment to each of
them of a sum of money equal to the amount each would have normally
earned as wages during the period from the date of the lock-out to
the date of the Respondents' offer of reinstatement, less his net earn-
ings during said period;
(d) Post at their Rochester, New York, plant copies of the notice
attached hereto as an appendix." Copies of such notice, to be fur-
nished by the Regional Director for the Third Region, shall, after
being duly signed by representatives of the Respondents, be posted
by the Respondents immediately upon receipt thereof, and maintained
by them for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material;
(e) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
4 In the event this order is enforced by 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."
E. C. BROWN COMPANY
APPENDIX
NOTICE TO ALL EMPLOYEES
143
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, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies; or in any manner interfere
with, restrain, or coerce our employees in the exercise of their right
to self-organization, to form labor organizations, to join or assist
INTERNATIONAL ASSOCIATION OF MACHINISTS, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all of such activities except to the
extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
AVE WILL OFFER to Salvatore Guadaguino and to all production
and maintenance employees on the pay roll of November 19, 1947,
who have not since that date been reinstated, immediate and full
reinstatement to their former or substantially equivalent positions,
and to Michael Rittaco immediate promotion to foreman, without
prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL BARGAIN collectively upon request with the above-
namned Union as the exclusive representative of all employees in
the bargaining unit described herein, with respect to grievances,
labor disputes, rates of pay, wages, hours of employment, or other
terms or conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees at our Rochester,
New York, plant, exclusive of clerical employees, guards, profes-
sional employees and supervisors as defined by the Act.
All our employees are free to become or remain members of the
above-named Union or any other labor organization.
WE WILL NOT discriminate in regard to the hire or tenure of
employment or any term or condition of employment against any
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee because of membership in or activity on behalf of any
such labor organization.
E. C. BROWN COMPANY,
By ---------------------------------------
(Representative ) ( Title)
PRODUCTION LINE MANUFACTURERS, INC.,
By ---------------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered , defaced, or covered by any other
material.
INTERMEDIATE REPORT
Messrs. John C. McRce and David F. Doyle, for the General Counsel.
Mr. Robert H. Tew, of Rochester, N Y., for E. C. Brown Company.
Mr. Frederick Thompson, of Rochester, N. Y., for Production Line Manufac-
turers, Inc.
Mr. D. J. Omer, of Buffalo, N. Y., for International Association of Machinists.
STATEMENT OF THE CASE
Upon a second amended charge filed on April 7, 1945, by International Associa-
tion of Machinists, herein called the Union, the General Counsel of the National
Labor Relations Board,' by the Regional Director for the Third Region (Buffalo,
New York), issued a complaint dated April 8, 1948, against E C Brown Company
and Production Line Manufacturers, Inc., both of Rochester, New York, herein
called the Respondents or Brown and Production Line, respectively, alleging that
the Respondents had engaged in and were engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended June
23, 1947, herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance :
(1) that on November 17, 1947, the Respondents discriminatorily discharged
Salvatore Guadaguino because he joined the Union; (2) that on November 19,
1947, the Respondents discriminatorily refused to promote Michael Rittaco to
the position of foreman because he joined the Union, (3) that at all times
since November 14, 1947, the Respondents have refused to bargain collectively
with the Union, although the Union has been and now is the exclusive represent-
ative of all employees in an appropriate unit; (4) that on November 19, 1947, the
Respondents locked out, discharged, and thereafter refused to reinstate all
employees in the appropriate unit because they joined the Union; (5) that the
Respondents have interrogated their employees as to their union affiliation and
have threatened and warned them to refrain from becoming or remaining mem-
bers of the Union; and (6) that by these acts the Respondents have restrained
and coerced their employees in the exercise of rights guaranteed in Section 7 of
the Act.
The representative of the General Counsel is herein referred to as General Counsel, and
the National Labor Relations Board as the Board.
E. C. BROWN COMPANY 145
Copies of the charges lind the complaint, accompanied by a notice of hearing,
were duly served on the Respondents and the Union.
Thereafter the Respondents filed separate answers, that of Brown being dated
April 24 and that of Production Line dated April 23, 1948. Each of the Respond-
ents denies having committed any unfair labor practice alleged in the complaint.
Certain affirmative allegations set forth in the answers will be discussed fully
below.
Pursuant to notice, a hearing was held at Rochester, New York, from May 17
to May 28, 1948, before the undersigned Trial Examiner, designated by the Chief
Trial Examiner. The General Counsel and the Respordents were represented
by counsel, and the Union by a Grand Lodge Representative All participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues At
the close of the hearing a motion was granted, without objection, to conform
the pleadings to the proof in minor matters such as spelling, dates, etc. Also
at the close of the hearing the Respondents moved that the complaint be dismissed
against each of them. Ruling was reserved. Disposition of these motions is
made by the findings, conclusions of law, and recommendations appearing below.
After the receipt of evidence, all counsel argued orally before the Trial Exam-
iner, said argument appearing in the official transcript of the proceedings. Leave
was granted to the parties to file proposed findings of fact and conclusions of
law and briefs with the Trial Examiner. Briefs have been received from each
of the Respondents. A stipulation by all parties has been received proposing
certain corrections in the transcript of the testimony. The proposed corrections
are hereby approved ; and it is ordered that the said stipulation be made a part of
the record.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
E C. Brown Company and Production Line Manufacturers, Inc., are New York
corporations, both having their principal place of business at the same address
in Rochester, New York. Brown was incorporated in 1904; Production Line in
December 1947.
From 1904 until the formation of Production Line, Brown was engaged in the
manufacture, sale, and distribution of agricultural sprayers and related products.
During the fiscal year ending in August 1947, Brown purchased raw materials
consisting principally of steel, brass, zinc, leather, and paint valued at more than
$500,000, of which approximately 95 percent was purchased and shipped to its
Rochester plant from points outside the State of New York. During the same
period Brown's sale of finished products totalled about $1,500,000 in value; sales
to customers outside the State of New York approximately $1,300,000.
Under circumstances described more fully in a later section, Production Line
was organized late in 1947; it ]eased Brown's production machinery and equip-
ment, and began manufacturing the same products for distribution and sale by
Brown. During the 31,6 months' period ending March 31, 1948, Production Line
produced sprayers valued at about $300,000, about 98 percent of which were for
Brown's distribution. From 90 to 95 percc nt of the products thus made for Brown
are shipped by Brown to points outside the State of New York. During the same
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period an inventory of raw materials, valued at about.$240,000, and originating
from points outside New York in the proportion described above, was transferred
from Brown to Production Line. During the same period, also, Brown purchased
for Production Line about $90,000 worth of materials and supplies, approximately
90 percent of such material coming from points outside the State of New York.
It is concluded and found that both Brown and Production Line are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists is a labor organization admitting to
membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background and events at issue
There is no evidence of any labor organization among Brown's employees from
the concern's incorporation in 1904 until the fall of 1947. During October and
November 1947, Union officials began organizing the production and maintenance
workers, visiting at their homes, distributing handbills at the company gates, and
holding meetings of employees. Before and at a meeting on November 10, about
30 employees signed cards authorizing the Union to represent them for the pur-
poses of collective bargaining. A shop committee was elected to obtain addi-
tional cards at the plant. By the evening of November 11 a total of 78 such
authorizations were obtained and by the local organizers forwarded to D. J. Omer,
Grand Lodge Representative of the Union, in Buffalo, with a letter asking that
a petition for certification be filed at once with the Board. At the same time
the local business representative wrote to Edward Brown, plant manager of the
company, claiming that the Union represented a majority of its production and
maintenance employees, and asking for a meeting as soon as convenient to ne-
gotiate a labor agreement. Brown received the letter on November 14. Also
on November 14, Omer filed with the Board's Regional Office in Buffalo a petition,
(which was docketed as Case No. 3-RC-12) and the 78 authorization cards.
On November 17 a Field Examiner notified both the Union and Brown that a
joint conference concerning the petition would be held on November 21. This
notice was received by Brown on November 18.
Also on November 17 one of the employees active in soliciting authorization
cards at the plant was discharged. The discharge is an issue in this case. On
the morning of November 19 Union representatives distributed another handbill
at the company gates, calling a meeting of the employees for the evening of
November 20. Also during the morning of November 19 management officials
called into the office, one after another, three production employees, offered
each in turn promotion to fill a foremanship vacancy, but withdrew each offer
after receiving an affirmative answer to the inquiry as to whether or not the
employee had joined the Union or signed a Union card. The company' s conduct
on this occasion is an issue.
Shortly after that incident, and the same day , a notice was posted in the plant,
announcing that:
... This Plant shall close its doors and suspend operations at 4:00 p. in.
tonight for an indefinite Period.
Pursuant to this notice, all production and maintenance employees were laid
off that afternoon. All supervisors and clerical workers , however, continued
at their work.
E. C. BROWN COMPANY 147
At the joint conference with the Board 's Field Examiner on November 21,
Brown's officials claimed that the company no longer had any employees, and
that the plant had been closed for economic reasons.
In December four of Brown 's management officials formed Production Line.
In January 1948, production was resumed , on the same machinery , in the same
plant, under the same general manager , and with the same supervisory and
clerical forces. Many of Brown 's employees sought reinstatement at the plant.
Each was asked by the personnel manager if they had signed a Union card.
There is no evidence that any employee who answered in the affirmative was
reinstated.
On December 1 the Union filed a charge of unfair labor practices against
Brown . On January 19 it was amended to include Production Line.
On January 12 the Union representative wrote to both Production Line and
Brown requesting ( 1) that all employees on the pay roll of November 19 be
reinstated before new employees were hired, and ( 2) a meeting for discussion of
such reinstatement and the negotiation of a labor agreement . On January 14
Brown replied that the plant was not being reopened and that therefore no
positions were available , and on January 21 Production Line replied , claiming,
in substance , that it was a new and different enterprise , and would be "guided
by its own judgment" as to the hiring of Brown's "former employees." In the
same letter , however, Production Line stated that it was "ready at all times" to
discuss matters of mutual interest "with its employees or their duly desig-
nated representatives "
The Union asked for a meeting , and Production Line set the date of February 9,
The conference with Production Line was held at the same premises , and with
a single exception the same management representatives attending , as at the
previous meeting with Brown on November 21. Production Line denied that it
was Brown 's successor , stated that it had a full complement of employees, and
would recognize the Union only if the Board certified it as the representative of
the employees then on Production Line's pay roll.
The Union made no claim to represent the majority of new employees hired
by Production Line as of February 9. It appears that no further conference
has been held since that date.
B. Specific issues
1. The lock -out of November 19 and the new corporation
The Trial Examiner considers that other issues must be appraised in the
setting of the shut-down of November 19, the effective discharge of all of Brown's
production and maintenance employees on that date , and the later forming of
a new corporation with new employees . That these events occurred is not in
dispute. Only the reasons for the action are in issue . Determination of the
actual reasons will be the first object of this section.
It is General Counsel 's position , in substance , that Brown closed its plant and
later reopened it under a new name to avoid its legal obligations to deal with
the Union . Counsel for Brown claims that the plant was closed because of
"dwindling finances," defective merchandise produced , and the economic re-
quirement to revise its manufacturing process.
Beyond doubt Brown had a serious business problem in the early spring and
summer of 1947. In that period hundreds of defective sprayers were returned
to the factory by its distributor-customers . In October Sears , Roebuck and Co.,
one of Brown 's major customers , threatened to stop dealing with it because of
the defective sprayers.
829595-50-vol. 81-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Responsibility for finding the cause of this unusual situation was assumed by
Giles E. Bullock, Brown 's secretary-treasurer and at that time holder of about
49 percent of the firm 's stock It appears that in the summer of 1947 Bullock,
an industrial engineer by profession , was the only corporate officer active in top
management of the business . For some months before August he had been
devoting most of his time in setting up a subsidiary plant of Brown in a nearby
city On August 1 he returned to Rochester to survey Brown 's critical manu-
facturing problem.
At the hearing Bullock was on the witness stand for almost 2 days , an ordeal
for any memory , however retentive and accurate . Yet with due regard for human
fallibility under trying circumstances , the Trial Examiner finds it not easy to
reconstruct , from Bullock 's inconsistent testimony, a reasonable account of the
causes which , at the hearing and previously to Board agents and newspaper
reporters , he claimed as having led to his decision suddenly to close the plant
on November 19, later to resume exactly the same manufacturing operations
with two corporations instead of one, and one producing for the other on a cost-
plus-ten percent basis.
From the credible portions of his testimony it is reasonably plain that Bullock's
investigation revealed "90 to 95 percent" of the trouble with defective sprayers
to have been caused by corrosion of the can and of the pump assembly within
the can
As to the cans, late in August Bullock sent samples to a local laboratory, to
ascertain the cause and cure of corrosion.
On August 28 the laboratory submitted a written report, recommending that
Brown "change to a more soluble flux," in the galvanizing process , "such as a
mixture of glycerin and amonium chloride, and then give these tanks a thorough
rinsing on the inside by means of a spray of water."
"Flux," according to Bullock , " is a chemical that is put on top of the molten
zinc in a vat ," into which the cans are immersed for galvanizing . Although
there is much confused testimony in the record on this specific matter, at one
point Bullock admitted, "that was a simple matter and you simply changed the
flux from zinc amonium chloride to amonium chloride ." Bullock further ad-
mitted that this "simple matter" was corrected immediately.
Since, as a fault, it had been remedied long before November 19, it cannot be
held to have been a factor reasonably leading, or even contributing, to Brown's
decision to lock out its entire production force on that date. Nor does the
Respondent claim that any production or maintenance employee was responsible,
at any time , for the use of improper flux.
The other cause of corrosion , according to the credible portions of Bullock's tes-
timony, was condensation of moisture in cans after they were brought suddenly
out of the molten zinc bath. At one point in his testimony Bullock said he had
determined , by August 1, that some sort of drying procedure must he installed
to prevent this corrosion . At another he said that on August 1 he determined
that a drying oven would be necessary . At another he said it took about 60 days
to perfect the required procedure . If these portions of his testimony are to be
believed , it follows that the procedure must have been perfected on about October
1, 1947.
Bullock also testified, however , that as late as November 19, more than a month
and a half later, he was analyzing the procedure "with as meager knowledge as
was available to me" and that on that date he concluded what procedure and
added equipment would be necessary . On that date , he said, he decided that
E. C. BROWN COMPANY 149
an electric oven and a blower system were needed, and that 60 days would
be required to obtain the equipment and complete the process.
Although Bullock testified that the needed oven was ordered in the middle
of November, when General Counsel demanded production of the purchase order
it was established that the order was not placed until November 28. Further-
more the oven was received at the plant 1 week later, on December 5, about
2 weeks after the shut-down. Bullock also admitted that the blower was received
on about December 5.
Whatever the actual continuity of events and decisions during Bullock's in-
vestigation, he admitted that on November 19 the only remedial facility still
needed was the oven, which was received about a week after ordered. There
is no reasonable explanation in the record for his claim that on November 19
a 60-day period would be essential for the receipt of the equipment.
That the absence of the oven was not a factor in deciding upon the shut-down
is further established by Bullock's sworn statement for a Board agent, signed
by him on March 2, 1948. Nowhere in its 31 pages did Bullock make reference
to the oven, or the need for it. When confronted with this fact, Bullock said
he had not mentioned it because "it hadn't been perfected yet." This claim is
refuted by documentary evidence The oven was received at the plant on
December 5, nearly 3 months before he signed the statement.
The Trial Examiner concludes and finds that there is no merit in the Re-
spondent's contention that the plant was closed because of defective merchandise
and the economic requirement to revise its manufacturing process.
As to the factor of dwindling finances, stressed at length by Bullock, it is plain
that the concern's resources, whatever they may have been, were diminished
to a degree during the summer of 1947 by the cost of repairing the hundreds
of returned sprayers. They were reduced during the same period, also, to the
extent of the cost of installing a new conveyor system. This system, however,
had been completed and was in operation on November 17, 2 days before the
shut-down. Bullock admitted that installation of the conveyor "was started
in October and was completed in early November," and estimated its cost as
about $11,000. It was put in, he explained, for two reasons : (1) to enable pro-
duction of parts for immediate assembly and to build up the finished goods inven-
tory ; and (2) to permit periodic inspection and testing of parts ap they, moved
along the line. Beginning the latter part of October, Brown began hiring new
employees to man this line. It advertised during this period in local newspapers
for employees. By November 19, according to Bullock, about 23 new employees
had been hired-at which time the company had a full complement for operating
the new machinery. During this same period the wages of many of the operators
were increased. Clearly the expenditure of capital for the revision of a manu-
facturing process and the expansion of its pay roll by hiring new employees and
increasing wages are not the usual indicia of a company concerned by fear of
being on the brink of financial disaster.
Also in apparent support of the claim of depreciated resources, Bullock testi-
fied that he anticipated a loss of $224,000 in a 60-day period following November
19 if the company continued to produce defective sprayers. He explained that
this estimate was based upon the existence of unfilled orders for 57,000 sprayers
and upon the premise that, if produced, each one would be defective . There is no
explanation in the record, however, for Bullock's indulging in such idle specula-
tion on November 19, since many weeks before that he had evolved and installed
facilities aid a system to prevent defective manufacture. The cause had been
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discovered , the cure prescribed, and the means all but provided before November
19, fqr complete elimination of the troubles which began early in 1947.
Indeed, as noted before, Bullock finally claimed that the whole reason for shut-
ting down was the lack of the "oven agitator." The Trial Examiner concludes
and finds that Bullock's testimony fails to support the Respondent's contention
that "dwindling finances" and the need for altering manufacturing processes was
a cause of the shut-down.
As to the corporate changes occurring after November 19, the testimony of
Bullock and other management witnesses is inconsistent, contradictory, and un-
convincing. In substance the actual occurrences, as to which there is docu-
mentary or undisputed credible testimony-, are as follows:
(a) On December 12, 1947, three individuals subscribed to a Certificate of In-
corporation of Production Line Manufacturers, Inc. Those three individuals
were Robert H. Tew, counsel for Brown in these proceedings; his stenographer;
and Frederick Thompson, who was and is an attorney for Brown, but who ap-
peared as counsel of record in these proceedings for Production Line. Attorney
Tew admitted at the hearing that he and his stenographer both served as dummy
incorporators , and that each "endorsed back" his or her single share of stock 2
days later . Thompson, who then and now occupies an office at Brown's premises,
drew up the incorporation papers.
(b) Following the certification of this corporation, a total stock subscription
of $100 was issued , at par value of $1 per share. Twenty-four shares were as-
signed to William R. Mahrt, who then was and continued until January 26, 1948,
to be on Brown 's pay roll as sales manager, but who on that date was transferred
to Production Line's pay roll as president ; an equal number of shares went to
Edward C. Brown, then Brown's factory manager and later holding the same
position with Production Line, also becoming its vice president ; the same number
of shares were also taken by Bernard F. Clinton and Phillip Hunt, both being
industrial engineers for Brown and later for Production Line, but who now hold,
respectively, the fiscal offices of treasurer and secretary of the latter corporation.
The remaining four shares went to Attorney Thompson.
(c) Despite this capital investment of only $100 on the part of these individ-
uals, on December 31, 1947, Brown agreed to lease to them, for 1 year, and with
the exception of a small portion of office space and a couple of automobiles,
Brown's entire manufacturing plant, equipment, machinery and other facilities.
And on the same date , Brown and Production Line entered into a manufacturing
agreement, whereby all Brown's inventory of raw material, process stock, finished
goods and supplies, valued at nearly a quarter of a million dollars, were trans-
ferred over to Production Line, and whereby Production Line agreed to produce
sprayers for Brown on a cost-plus-ten-percent basis. Production Line was re-
stricted in the agreement from producing any article in competition with Brown.
(d} In addition to transferring its entire manufacturing inventory to Pro-
duction Line, with no actual remuneration so far as the record shows, Brown also
advanced a cash loan of $2,500 to Production Line, and within the next 3 months
pledged its own credit for, or paid for outright, about 90 percent of Production
Line's purchases , totalling more than $100,000.
(e) Brown 's personnel manager, supervisory force, and office staff were simply
transferred from one pay roll to another.
(f) With the exception of about 25 individuals, Production Line hired an
entirely new production and maintenance crew.
Although ^at first implying that the move originated among his "employees,"
Bullock later admitted that he "suggested" the plan by which the new corporation
E. C. BROWN COMPANY 151
was formed. The Trial Examiner finds that Bullock was responsible for the
rearrangement in corporate set-up.
As to the reasons, Bullock testified that on December 8 he decided that it "would
be wise" to have formed another organization, because the name of E. C. Brown
had been "blackened . . . it was gone; it was a dead dm!k." If in' fdct
Bullock considered Brown's business reputation to be in this predicament,
there is in the record no reasonable explanation for the following uncontroverted
facts: (1) sprayers continued to be manufactured, labelled, billed, advertised
and collected for as Brown's products; and (2) within a few weeks Bullock
himself purchased all but three of the outstanding shares of Brown stock and
is now, in effect, the sole owner of both the name and the business. The Trial
Examiner concludes and finds the reason advanced by Bullock for the setting up
of Production Line to be wholly incredible.
In summary, the Trial Examiner finds that the foregoing reasons advanced
by the Respondents for the closing of the plant on November 19, and for the
formation of Production Line, are without merit, and were not the real motives
for such action.
Other circumstances, including certain admissions by Bullock, Mahrt, and
Edward Brown, reveal the actual causes of the Respondents ' conduct.
On November 10 handbills announcing a Union meeting were first distributed
at the plant gates. Clinton admitted seeing one of the flyers. It is reasonable
to infer that other members of Brown's management also became aware of Union
activity on that occasion In any event, a return postal receipt in evidence
establishes that Manager Brown was formally served with the Union' s claim of
majority representation on November 14. Brown did not reply to the claim
and request for a conference. Bullock testified that the letter did not come
to his attention until November 17. Later that same day Salvatore Guadaguino,
an employee actively soliciting signatures to Union cards at the plant, was dis-
charged under circumstances in which Bullock was directly involved and which
are described more fully below.
It is undisputed that on November 18, electrician George Hasbrouck was sum-
moned to the personnel manager's office and, in the presence of his foreman, asked
if he had been a "union man" in his previous employment and if he was a "union
man" then The personnel manager told him he was "checking up." Thus ques-
tioning an employee as to his union affiliations has repeatedly been found by the
Board and the Courts to constitute interference, restraint, and coercion of
employees in the exercise of rights guaranteed by the Act.
On the morning of November 19 Union handbills were again distributed at the
plant. Later that morning, Bullock and other management officials called three
production workers into the office, and offered each, in turn, promotion to fore-
manship. Each, in turn, was denied promotion by Bullock after he elicited from
them the information that they had signed a Union card. At a management
conference following these interviews it was decided, according to Clinton, who
attended, that "if we didn't have men that we had confidence in there was no use
in going on and trying to fight this with a broken hose." Soon after this con-
ference a notice was posted stating that Brown would, at 4 o'clock the same day,
"suspend operations" for an indefinite period. In fact, however, the plant did
not close entirely, that day, or at any time. All supervisors and the clerical force
remained. Only the production and maintenance employees, whom the Union
claimed to represent , were deprived of work and, in effect , locked out.
A few days later, according to his own testimony, Bullock told Rochester
newspapermen that he had "evidence of some willful sabotage in the plant" and
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "it finally reached the stage where we couldn't separate good employees
from bad. Before any of our factory employees return to work, if at all, they
will be pretty- carefully screened." No evidence of "willful sabotage" was of-
fered by Bullock or anyone else at the hearing. If such evidence existed, it is
reasonable to believe that it would have been produced. In its absence, and in
the lack of any credible explanation for its absence,' since Bullock was directly
confronted with his statements to reporters, the Trial Examiner is convinced,
and finds, that Bullock was aware of their lack of foundation when uttered.
The real reason for the shut-down is also revealed in the fact that Brown's
employees, when seeking reemployment upon reopening of the plant in December
and January, were asked by the same personnel manager, Stanley Stasaitis, if
they had joined the Union or signed a Union card. Those who admitted having
signed were denied employment. It is clear, and the Trial Examiner finds, that
Bullock meant by "screening," to make inquiry as to union affiliation.
The Trial Examiner concludes and finds that Brown locked out its produc-
tion and maintenance employees on November 19, 1947, to evade its legal obliga-
tions under the Act and to discourage membership in the Union. It is also
found that by thus discriminating against all its production and maintenance
employees Brown interfered with, restrained, and coerced them in the exercise
of rights guaranteed to employees by Saction 7 of the Act.
As to the formation of Production Line, Bullock admitted that one of the
factors upon which lie based his decision not to resume under Brown's name
was his knowledge that a charge of unfair labor practices had been filed against
that company. Mahrt, head of Production Line, admitted that incorporation was
made upon assurance and advice from Thompson that the unfair labor practice
charges would not be valid against the new corporation. Edward Brown said
that Thompson told him that "any labor charges allegedly based against the
E. C. Brown Company had no contingent basis on Production Line Manufac-
turers."
The Trial Examiner finds that the actual reason for setting up Production
Line was to evade dealing with the Union and to evade responsibility under the
Act for Brown's unfair labor practices.
2. The discharge of Salvatore Guadaguino
Guadaguino began work for Brown in 1942. He left in June 1943 for the
hospital and later for service in the Armed Forces. He returned to the com-
pany pay roll in February 1946, and worked until November, when he withdrew
to attend school. He was reemployed in February 1947, and worked until his
discharge on November 17. From May 1947 until his discharge he worked in the
galvanizing department under Foreman William Howard. Until about 3 weeks
before his discharge, his job was to remove the sprayer tanks from the molten
zinc. During his final 3 weeks he was engaged in a revised process of "pickling"
2 When pressed by General Counsel for explanation of his charge of "willful sabotage,"
Bullock claimed that he meant the presence of water in cans returned as defective In
other portions of his testimony Bullock more credibly explained the presence of water as
natural condensation, and it was established that the company went toy considerable ex-
pense to install a drying process to take care of this manufacturing fault Had the com-
pany believed that any employee or employees willfully had placed water in the cans before
shipment, it clearly would not have gone to the expense of changing a manufacturing
process . Furthermore , upon additional questioning by General Counsel , Bullock admitted
that the foreman in charge of packing, who had been responsible for the final inspection
before shipment, was actually promoted on November 19 to he chief inspector of the entire
new production line.
E. C. BROWN COMPANY 153
the containers, immersing them in a bath of acid. A few days before his dis-
charge, together with other employees in the department, his wages were
increased.
Guadaguino attended the first Union meeting on November 10 and, after the
meeting, at the plant solicited many signatures of other employees to Union
cards. On November 11 Howard asked the employee how many had attended
the meeting the night before, and declared that they were a "bunch of suckers,"
giving their money to the Union.' The Trial Examiner finds that Howard knew,
on November 11, of the employee's activity on behalf of the Union.
Just before the closing hour on November 17, Howard told him he was fired.
When he asked why, Howard told him that Bullock did not like the way he
was working around there. Bullock, walking by at the time, added, "And
another thing I don't like the way you are pickling the cans." Guadaguino had
never before been criticized for his work.
The foregoing finding that the employee had never before his discharge been
criticized for his work, which is based upon his own credible testimony, is sup-
ported by Bullock's admission that not until November 17 was anything defective
in the pickling process discovered. Bullock's testimony also refutes Howard's
incredible claim that he had criticized the employee "two or three times a day"
over a period of a month and a half and on "quite a few occasions" told him
he would be fired if he did not improve.' Nothing defective in the pickling cycle
having been discovered until November 17, it reasonably follows that there
would have been no reason to criticize the employee's work until that date.
According to Bullock, in the afternoon of November 17, when the first test run
of this conveyor system was being made, he found that the pickling period varied,
some cans remaining in the acid too long, and others too short, a time. He
spoke to Howard about this, advising him to "control a better cycle."
Also according to Bullock's testimony, whatever variation there may have
been in the pickling time, it was remedied that same afternoon, before the em-
ployee's discharge. He admitted that he explained the matter to Howard, saw
Howard explain to Guadaguino, and "after the explanation he pickled the
cans properly," and that all cans thereafter were "all right."
Furthermore, whatever deviation in proper timing may have occurred before
that time, management apparently recognized that the fault was not the em-
ployee's. After his discharge two employees were assigned to do Guadaguino's
work, and a clock was installed in the department, where none had been before.
Howard admitted that now "I have got a better system there."
The Trial Examiner concludes and finds that the evidence does not support
the Respondent's contention that Guadaguino was discharged for cause but that,
on the contrary, the preponderance of evidence leads to the conclusion that he was
discharged because of his Union activity and to discourage Union membership.'
' Howard denied discussing the Union with the employee, until confronted with a prior
contradictory statement on the subject, made to a Board agent. The denial is unreliable.
4 Howard also testified at first that Guadaguino was on the pickling operation for "two to
three months anyway." He later changed this estimate to 1% months ; and finally
admitted that the new pickling process, to which the employee was assigned , was not
installed until between 2 weeks and a month before November 17.
6 In its answer , Brown claims that Guadaguino was discharged because of "frequent
absence from work," as well as for inefficiency. No credible proof was offered to support
this claim His employment record card for 1947 was placed in evidence . It indicates
only four absences in 1947, two of them, according to the code thereon, were for sickness.
Neither Howard nor Bullock contended that absenteeism was a cause of the discharge.
Howard did testify, however, that Guadaguino left his work frequently for long periods,
and wandered around the plant . Other testimony of the foreman deprives this claim of
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to promote Michael Rittaco
In November 1947, employee Rittaco had worked for Brown about 13 years.
He signed a Union card at the meeting of November 10. In midmorning of
November 19 he was summoned to Bullock's office. He was interviewed by Bul-
lock in the presence of the factory manager, personnel manager, his foreman,
and two industrial engineers.
Bullock told him that Kasper, his foreman, was being promoted to chief in-
spector, and offered him the job as foreman. "There is a catch to it," Bullock
added, and then asked Rittaco if he had signed a Union card. The employee ad-
mitted the fact. Bullock then declared, "what I have done for you and you
turned me down," and told Rittaco that as soon as he could locate another job
to turn in his resignation. Bullock then left the office, Brown said, "Mike, you
ought to know what you were signing in there," whereupon the employee declared
that "everybody else signed the card," and he believed he had the same privilege.'
Bullock admitted that he refused to promote Rittaco because he had signed the
Union card, and that this was the only reason he was not promoted. The answer
admits the allegation in the complaint.
The Trial Examiner concludes and finds that Brown discriminatorily refused
to promote Rittaco on November 19 because he had signed a Union card, and for
the purpose of discouraging membership in the Union.
4. The refusal to reinstate employees upon reopening of the plant
As noted briefly above, many of Brown's employees returned to the plant after
learning of its reopening and sought reinstatement.
At least 15 such employees were witnesses at the hearing. In substance their
testimony was the same. All were denied reinstatement. In most cases Stasaitis,
the personnel manager, asked them outright if they had signed a Union card.
Upon receiving an affirmative answer, Stasaitis said he must first consult Bullock,
and the employees were told to come back later. When returning later, they
were told there was no work.
Stasaitis admitted having talked about the Union with some applicants, but at
one point said he couldn't remember if he asked about signing cards. He also
said that "some" of them volunteered the information. Finally, on cross-ex-
amination, Stasaitis testified : . . . "That is one of my employment procedures
I asked all of these applicants-not all but some, if they belonged to
a union."
Robert Smith, who had been one of the three offered the foreman's job on the
day Brown closed down, was told by Stasaitis when applying for his job, that
"they wouldn't operate with the union in there," and "they were going to
check over all the employees before they finally let them know."
Another employee, Joseph Dziubaty, was asked by the personnel manager, by
mail, to come to the plant upon its reopening. The employee reported, was
credibility. He also testified that the employee would put an entire batch of cans into
the tank and then "walk all around the shop." When he removed the cans, however,
also according to Howard, some of the cans had 15 minutes in the pickle, and one only
a minute and a half. According to Howard's own testimony, if believed, he could have
been away from the tank at any time no more than the minute and a half.
6 Bullock denied that he asked for the employee's resignation. Clinton testified that
he did not recall this statement by Bullock. Brown and gasper said they did "not
hear" the statement. The Trial Examiner can place no reliance upon either the direct or
indirect denials. Bullock and other management officials present were all involved in
subsequent unfair labor practices, as described above.
E. C. BROWN COMPANY 155
offered a job and an increase, accepted the terms-and then was asked if he had
signed a Union card. He was then told he would hear from the personnel man-
ager by mail later. Apparently not bearing, he went back to the plant on two
later occasions, but on each was told there was no work for him.
Edward Brown admitted that he instructed the personnel manager to "inquire
as to whether they belonged to a union."
On the basis of the credible testimony of the employee witnesses, and the ad-
missions of Stasaitis and Brown, the Trial Examiner finds that all employees
formerly on Brown's pay roll, who sought reemployment upon opening of the
plant and thereafter, were questioned as to whether or not they had signed a
union card or belonged to a union. Upon the undisputed testimony of all such
employee witnesses that they were not reemployed after having admitted signing a
union card, the Trial Examiner further finds that they were denied reinstatement
because they had thus designated the Union as their bargaining representative.
Evidence was introduced establishing that by February 14, 1948, about 25
employees formerly on Brown's pay roll had been reemployed. After introduction
into evidence of the Union cards signed in November 1947, the Respondents
pointed to the fact that 7 of the employees reinstated had previously signed cards.
The Respondents contend that this fact shows that no discrimination was exer-
cised in rehiring. The position is untenable. None of the 7 was called to testify.
There is no proof that upon applying for work they admitted having signed a
Union card and were thereafter hired. The testimony of Stasaitis makes clear
that as to these 7 employees, he did not know that they had signed Union cards
until the hearing, and upon his examination of the Union cards.
The discrimination in rehiring was of a pattern with that of the shut-down ; its
purpose was to discourage Union membership and to deprive employees of rights
guaranteed by the Act.
The Trial Examiner further finds that the employees discriminatorily laid off
on November 19 were under no obligation to seek reinstatement. It was the duty
of the Employer, whether using the name of Brown or Production Line, to remedy
its own unfair labor practice by offering reinstatement to all production and
maintenance employees on the pay roll of November 19, before hiring any new
employees. It will be recommended that the Employers comply with this obliga-
tion under the Act.
5. The refusal to bargain
a. The appropriate unit
The complaint alleges and the answers do not deny that all production and
maintenance employees of the Respondents employed at the Rochester, New York,
plant, exclusive of clerical employees, guards, professional employees and super-
visors as defined by the Act constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9, subsection (b) of the Act.
Having previously found that the Respondents are in effect and in all material
respects under the Act, a single entity, the Trial Examiner further finds that the
unit alleged in the complaint, and described above, at all times material herein
constituted and now constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of the Act.
b. Majority representation
Brown's November 19, 1947, pay-roll list of production and maintenance em-
ployees, within the unit described above, totals 124. At the hearing General
Counsel submitted in evidence a total of 78 authorization cards, signed on or
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before November 11, 1947, by employees on this pay roll and within a few days
turned over to the Board's Regional Office. At the hearing all but 4 of this
total were further identified either by the individuals signing or by witnesses to
the signatures. Even if these 4 cards are disregarded, it is clear and the Trial
Examiner finds, that on November 11, 1947, and at all times material thereafter,
the Union was and now is the duly designated representative of a majority of
the employees in the above-described appropriate unit for the purposes of col-
lective bargaining with respect to rates of pay, wages, hours of employment and
other conditions of employment, within the meaning of Section 9 (a) of the Act.
c. The refusal to bargain
In addition to the conduct of the Respondents set out above, the personnel
manager testified and the.Trial Examiner finds, that, employees hired on Pro-
duction Line pay roll were required to sign individual "bonus" contracts, whereby
the employee bound himself to be "a good, efficient employee," in order to merit
a bonus. Moreover, without consulting with the Union, the Respondents uni-
laterally increased the wage rates for employees, according to the personnel
manager raising the lowest hourly rate from $.68 to $100.
The Trial Examiner concludes and finds that: (1) by failing to reply to the
Union's request of November 12 for negotiations ; (2) by locking out all employees
in the appropriate unit on November 19 to avoid dealing with the Union ; (3) by
bargaining individually with employees and increasing wage rates unilaterally ;
(4) by failing and refusing to offer reinstatement to all employees locked out,
upon reopening of the plant, and (5) by at all times since November 14, 1947,
refusing to recognize the Union as the exclusive bargaining agent of all em-
ployees in the appropriate unit, the Respondents have refused and are now
refusing to bargain collectively within the meaning of the Act, and that by such
refusal the Respondents are interfering with, restraining and coercing the em-
ployees in their exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The actitives of the Respondents set forth in Section III, above, occurring in
connection with the operations of the Respondents 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 and have led to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, the Trial Examiner will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondents, on November 14, 1947, and at all times
thereafter, have refused to bargain with the Union as the exclusive representative
of their employees in an appropriate unit, it will be recommended that the Re-
spondents, upon request, bargain collectively with the Union.
The Trial Examiner has found that Salvatore Guadaguino was discriminatorily
discharged on November 17, and that all other production and maintenance em-
ployees were likewise discharged on November 19 and refused reinstatement, with
certain exceptions, upon reopening of the plant. It will be recommended that
the Respondents offer Guadaguino and all other production and maintenance em-
ployees on the pay roll of November 19, 1947, excepting those already rehired,
immediate and full reinstatement to their former or substantially equivalent
E. C. BROWN COMPANY 157
positions' without prejudice to their seniority or other rights and privileges,
discharging if necessary all employees hired since November 19, 1947, and that the
Respondents make whole each of the employees discriminated against for any loss
of pay he or she may have suffered by reason of the discrimination by payment
to them of a sum of money equivalent to that they normally would have earned
as wages from the date of the refusal or failure to reinstate to the date of offer
of reinstatement, less any net earnings during said period.
It has also been found that the Respondents on November 19, 1947, and there-
after have discriminatorily refused to promote and employ Michael Rittaco to the
position of foreman. It will be recommended that the Respondents offer him
immediate and full reinstatement to the position of foreman, or a substantially
equivalent position, and make him whole for any loss of pay he may have suffered
by reason of the discrimination by payment to him of a sum of money equal to
that which he would normally have earned as foreman's wages, from the date
of the refusal to promote to the date of offer of reinstatement and promotion to
the position of foreman, less his net earnings during said period.
Upon the basis of the above findings of fact and upon the entire record, the
Trial Examiner makes the tollowmg:
CONCLUSIONS OF LAW
1. The operations of E. C. Brown Company and Production Line Manufacturers,
Inc., and of each of them, constitute trade, traffic, and commerce among the
several States, within the meaning of Section 2 (6) and (7) of the Act.
2. International Association of Machinists is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All production and maintenance employees of the Respondents engaged at
the Rochester, New York, plant, exclusive of clerical employees, guards, pro-
fessional employees and supervisors as defined by the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. International Association of Machinists was on November 14, 1947, and at
all times thereafter has been the exclusive representative of all the employees
in the aforesaid unit for the purposes of collective bargaining within the meaning
of Section 9 (a) of the Act.
5. By refusing on November 14, 1947, and at all times thereafter, to bargain
with International Association of Machinists, as the exclusive representative of
all employees in the appropriate unit, the Respondents have engaged in and, are
engaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act,
6. By discriminating in regard to the hire and tenure of employment of all
production and maintenance employees on the pay roll of November 19, 1947,
including Salvatore Guadaguino and Michael Rittaco, thereby discouraging
membership in International Association of Machinists, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
7. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N. L. R. B. 827.
1 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are etigaging ` in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act. '
8. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the above findings of fact and conclusions of law, upon the entire record
in the case, and pursuant to Section 10 (c) of the amended Act, the Trial
Examiner recommends that the Respondents E. C. Brown Company and Produc-
tion Line Manufacturers, Inc., Rochester, New York, their officers, agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association of Ma-
chinists as the exclusive representative of all the production and maintenance
employees of the Respondent at their Rochester, New York, plant, excluding
clerical employees, guards, professional employees and supervisors as defined in
the amended Act, with respect to grievances, labor disputes, rates of pay, wages,
hours of employment, or other terms or conditions of employment;
(b) Discouraging membership in International Association of Machinists, or
in any other labor organization of their employees, by discriminatorily discharg-
ing, refusing to reinstate or refusing to promote any of their employees, or by
discriminating in any regard to their hire or tenure of employment or any term
or condition of their employment ;
(c) Interrogating their employees concerning their union affiliations, activities,
or sympathies, or in any other manner interfering with, restraining, or coercing
their employees in the exercise of the rights to self-organization, to form labor
organizations, to join or assist International Association of Machinists, or any
other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities, for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Association of
Machinists as the exclusive representative of all its employees in the aforesaid
appropriate unit, with respect to grievances, labor disputes, rates of pay, wages,
hours of employment, or other terms or conditions of employment ;
(b) Offer to Salvatore Guadaguino and all other production and maintenance
employees on the pay roll of November 19, who have not already been reinstated,
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
in offering reinstatement to Michael Rittaco, offer him immediate promotion to
the position of foreman discriminatorily denied him on November 19, 1947, or to a
substantially equivalent position, dismissing, if necessary, any persons hired after
November 19, 1947, and not in the Respondents' employ on that date. Make whole
Salvatore Guadaguino, Michael Rittaco, and all other production and maintenance
employees locked out on November 19, 1947, in the manner set forth in the section
entitled "The remedy" above ;
(c) Post at their plant at Rochester, New York, copies of the notice attached
hereto and marked `Appendix." Copies of said notice, to be furnished by they
Regional ]Director for the Third Region, after being signed by representatives
of the Respondents, shall be posted by the Respondents immediately upon re-
E. C. BROWN COMPANY
ceipt thereof, and maintained by them for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents, to insure
that said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Third Region in writing, within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the Respondents have taken to comply herewith.
As provided in Section 203.46 of National Labor Relations Board Rules and
Regulations, Series 5, effective August 22, 1947, any party may, within twenty
(20) days from the date of service of the order transferring the case to the
Board, pursuant to Section 203.45 of said Rules and Regulations, file with the
Board, Rochambeau Building, Washington 25, D. C., an original and six copies
of a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and six
copies of a brief in support thereof ; and any party may, within the same period,
file an original and six copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Proof of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203.85. As further provided in said
Section 203.46, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the Order transferring the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated July 12, 1948.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union affilia-
tions, activities, or sympathies ; or in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF
MACHINISTS, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
WE WILL OFFER to Salvatore Guadaguino and to all production and
maintenance employees on the pay roll of November 19, 1947, who have not
since that date been reinstated, immediate and full reinstatement to their
former or substantially equivalent positions, and to Michael Rittaco im-
mediate promotion to foreman, without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them.
WE WILL BARGAIN collectively upon request with the above-named Union
Union as the exclusive representative of all employees in the bargaining unit
described herein, with respect to grievances, labor disputes, rates of pay,
wages, hours of employment, or other terms or conditions of employment,
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, if an understanding is reached , embody such understanding in a signed
agreement . The bargaining unit is:
All production and maintenance employees at our Rochester, New York,
plant, exclusive of clerical employees, guards, professional employees
and supervisors as defined by the Act.
All our employees are free to become or remain members of the above-named
Union or any other labor organization.
WE WILL NOT discriminate in regard to the hire or tenure of employment
or any term of condition of employment against any employee because of
membership in or activity on behalf of any such labor organization.
E. C. BROWN COMPANY,
By -------------------------------------
(Representative) (Title)
PRODUCTION LINE MANUFACTURERS, INC.,
By -------------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date hereof, and
must not be altered, defaced, or covered by any other material.