Johnson Bronze Co.

National Labor Relations Board - Board Decisions

Aug 3, 1944

57 N.L.R.B. 814 (N.L.R.B. 1944)

In the Matter Of'JOHNSON . BRONZE ,C0MPANY and:UNITED AUTOMOBIbEr
AIRCRAFT AND AGRICULTURAL IMPLEMENT WORHERS OF AMERICA,
LOCAL 69, AFFILIATED WITH THE C. I. O.
Case No. C-2595 (6-C-720).-Decided August 3,\1944
DECISION
AND
ORDER'
Upon a complaint issued pursuant to charges filed by United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
Local 69, affiliated with the Congress of Industrial Organizations,
herein called, the Union, against Johnson Bronze Company,. New
Castle, Pennsylvania, herein called the respondent, a hearing was held
before a Trial Examiner at New Castle, Pennsylvania, from February
25 to March 6,1943, in which the Board, the respondent, the Union, and
Bronze Workers Independent Union, herein called the Independent,
participated by their representatives. The Board has reviewed the
Trial Examiner's rulings on motions and on-objections to the admis-
sion, of evidence and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
On April 21, 1943, the Trial Examiner issued his Intermediate
Report, a copy of which is attached hereto, in which he found that the
respondent had engaged in certain unfair labor practices. Thereafter,
the respondent filed exceptions to the Intermediate Report and a brief
in support of its exceptions. On July 19, 1943, the respondent filed a,
motion for have to file a supplemental exception to the Intermediate
Report. The motion is hereby granted, and the respondent's supple-
mental exception is made a part of the record' herein. Oral argument
was held before the Board at Washington, D. C., on July 20, 1943, and
was participated in by counsel for the respondent and the Union.
On November 10, 1943, the Board issued and served on the parties an
order to show cause why the proceeding should or should not be dis-
missed, either in whole or in part, without prejudice, in view of a
provision in the National Labor Relations Board Appropriation Act,
1944,-herein called the 1944 Appropriation Act, imposing certain
3'57 Stat. 515.
57 N. L. R. B., No. 136.
814 _
l
JOHNSON BRONZE COMPANY 815
restrictions on the use of the funds therein appropriated, in connec-
tion with complaint cases arising over agreements between management,
and labor which had been in existence for 3 months or longer without
complaint being filed.2 Thereafter, pursuant to the order to show
-cause,_th'e'resporident:'filed a-brief;,'and the-respondent,-and the Union,
requested oral argument: ` The requests for oral-argument were denied
by the Board.
The 1944 Appropriation Act expired on June 30, 1944, and'was,
followed by the National Labor Relations Board Appropriation Act,
1945,3 which is presently in force and effect. Under the latter Act,
limitations somewhat similar to those contained in the 1944 Appro-
priation, Act are imposed upon the use of funds during the current:
fiscal year, but the 1945 Act expressly provides that such limitation
shall not apply "to agreements with labor organizations formed in
violation of" Section 8 (2) of the Act.4 Since the contract involved
herein was entered into with a labor organization formed in violation,
of Section 8 (2) of the Act, as found below, we are not precluded
from proceeding herein under the legislation now in force. ,
The Board has considered the Intermediate Report, the exceptions-
and briefs of the 'respondent, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the-
Trial Examiner, with the additions and qualifications noted' ,below :
' , 1. The Trial Examiner has found, and we agree, that the respond-
ent engaged in interference,^vithin the meaning of Section 8 (1) of the
Act, by interrogating employees concerning their union affiliation and
by. seeking to ascertain the names of employees who had joined the
Union. These findings are based, in part, on the testimony of em-
ployee, Nick Panella as to the activities of Chief of Plant Police
Robert W. Letera. Panella also testified, and the Trial Examiner
has found, that Letera, in talking to Panella on March 28, 1942,.
castigated Harry Delin, the Union's representative, as a "big crook,"
2 This provision read as follows : "No part of the funds appropriated in this title shall
be used in any way in connection with a complaint case arising over an agreement between
management and labor which has been in existence for three months or longer without
complaint being filed Provided, That, hereafter, notice of such agreement shall have been,
posted in the plant affected for said period of three months, said notice containing informa-
tion as to the location at an accessible place of such agreement where said agreement
shall be open for inspection by any interested person
3 Public Law No 373, 78th Congress, 2d Session, Title IV.
4 The limitations in the 1945 Act read as follows . "No part of the funds appropriated in,
this title shall be used in any way in connection with a complaint case arising over an
agreement, or a renewal thereof, between management and labor which has been in existence
for three months or longer without complaint being filed by an employee or employees of
such plant : Provided, That, hereafter, notice of such agreement or renewal thereof, shall
have been posted in the plant affected for said period of three months, said notice contain-
ing -information as to the location at an accessible place of such agreement where said,
agreement shall be open for inspection by any interested person: Provided further, That
these limitations shall not apply to agreements with labor organizations formed in viola-
tion of section 158, paragraph 2, title 29, United States Code [Sec 8 (2) of the Nationale
Labor Relations Act]."
816 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selfishly interested in himself, and stated that if the Union organized
the respondent's employees it would lead tp "trouble"; remarked that
Panella ought to get a raise and asked if he would ,drop the Union
for a 5-cent an hour wage increase ; said he would do "a' whole lot"
for -Panella if he dropped the Union; asked him to "check" on Delin
to ascertain whether he, was not a'crook; and that on Monday, March
30, -while Paiiella was at work, Letera asked him what he thought'
of the "proposition" offered' him on the preceding Saturday.5 On
these facts, and on the record as a whole, which shows that the re-
spondent engaged in' a course of conduct designed to defeat its em-
ployees' rights to, self-organization, including anti-union statements
of supervisory employees, domination of and interference with the
Plan and the Independent, and the discriminatory refusal to rehire
an employee, we find that the respondent interfered with, restrained,`
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
-2. The Trial Examiner has found, and we agree, that the respond-
ent, following' the passage of the Act, dominated and interfered with
the administration of, and contributed support to, the Plan, which
it had previously conceived and fostered, and that it thereby, en-
gaged in unfair labor practices, within the meaning of Section 8 '(2)
of the Act. The Plan continued in existence until the respondent,
on July 13, 1942, withdrew recognition from it and ordered its dis-
establishment, as a result of which the Plan representatives, on July
13, 1942, adopted a motion that the Plan be discontinued. Prior to
its dissolution, however, the, Independent_ had come into existence.
As to the formation of the Independent, the record shows, as is set
forth in the Intermediate Report, that', shortly after the Union began
its organizational activities'in 1942, a group of the respondents em-
ployees, including Arthur Guinaugh, the chairman of the Plan, and
other Plan representatives, feeling that the Plan "was on its way out,"
decided to forma new organization ; that, during May 1942 , members
of this group met with an attorney on several 'occasions to make
preliminary plans for the organization and, at one of the meetings,
decided on the name "Bronze Workers Independent Union"; that on
June' 1, 1942, the first public membership meeting of the Independent
was held, presided over by Guinaugh, still the Plan chairman, at
which meeting temporary officers were elected, application cards were
distributed, and organizing plans were discussed; and that at the
next meeting, on June '28, 1942, permanent officers and shop stewards
were elected, several of whom either then were` or previously had
i,
5 Panella 's testimony was denied by the respondent ' s witnesses Letera and Archie Cumo.
We agree with , the Trial Examiner 's resolution of the conflict in the testimony as to
Letera's conduct. '
'JOHNSON BRONZE COMPANY 817"
been Plan representatives . During this period, and particularly on
June 11 and 12, as the Trial Examiner' has found, the respondent
actively assisted the Independent in its campaign to acquire meni-
_'bers. 'On June 30, 1942, the Independent requested recognitioii;as the
exclusive bargaining agent of the respondent's employees'aiid an op-
portunity to meet with the respondent to negotiate a contract. "Be-
fore granting recognition, the respondent demanded of the 'Indep iid
ent not only proof of its majority status, which' the Independent
furnished in the form of its membership cards, but also ' proof ;that"
it had no connection with the Plan. The Independent answered this
demand on, July 14, 1942, the day after the formal dissolution of the
Plan, by a letter stating, in part, that it had "no connection whatever
with the Employees Representative Plan, either directly or indirectly,
now or at any time in the past." Despite this disclaimer, the active
participation of Plan representatives in the formation of the'Iude-'
pendent and the fact that the Plan continued in existence until the
majority status of the Independent had been established, but was
dissolved almost immediately thereafter, clearly indicates ' that, the
'Independent was merely a continuation of the Plan, functioning un-
der-a different name and with certain structural change`s 'intended to
enable it to qualify as a bargaining representative. This conclusion
'-is 'strengthened by the fact that the respondent made no attempt to
disestablish the Plan or to notify its employees of their self-organiza-
tional rights until after the Independent had been formed but, on
the contrary, by actively assisting the Independent in its campaign
for members, after having discouraged membership in the Union, gave
the 'employees reason to believe that the Independent enjoyed the
favor which had previously been accorded to the Plane Under the
circumstances, we are of the opinion and find that the Independent
was in fact a continuation of and successor to the company-dominated
Plan, and that the respondent assisted the Independent. We accord-
ingly find, as did the Trial Examiner, that the respondent dominated
And interfered with the formation and administration of and con-
tributed support to the Independent, in violation of Section 8 (2) of
the Act.
3. The Trial Examiner has found, and we agree, that the respond-
ent refused to recall Bailey on and after October 21, 1942, not be-
cause of her' personnel record or inefficiency, but because it was op.
posed to her union interest, activity, and membership. With respect
to her union activity, Bailey admittedly distributed application cards
and solicited membership for the Union during her working hours.
Plainly, here "the sequence [ was] not broken by a substantial period, marked at the
outset by an outright repudiation of whatever [ went] before ' N.` L R. B. V. Standard
Oil Company, 138 F. (2d) 885 (C. C A 2).
601248-45-vol. 57-53
818 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
We do not, by our, decision, condone such conduct. ' As we' have pre-
viously stated, working hours are,for work, and an employer may
properly promulgate and enforce a rule prohibiting union solicita-
tion during working hours, provided its reason for so doing is not,
discriminatory.' In the present case, however, the record fails to
show either that the respondent had promulgated any such rule, or'
that it had objected to solicitation for the Independent on company
time. We therefore conclude that' in refusing 'to rehire Bailey be-
cause of her union activities, the respondent was motivated not by
the fact that her union activities had been carried on during working
hours, but that they had been conducted in the interest of the Union
rather than the_ Independent. Under the circumstances, we find, as
did the Trial Examiner, that the respondent's refusal to rehire
Bailey was discriminatory; within the meaning of Section 8 (3) of
the Act. %
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor. Relations
Board hereby orders that the respondent, Johnson Bronze Company,
New Castle, Pennsylvania, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Bronze
Workers Independent Union or with the formation or administration
of any, other labor organization of its employees, and from contribut-
ing support to Bronze Workers Independent Union or to any,other
labor organization of its employees;
(b) Recognizing or in any manner dealing with Bronze Workers
Independent Union as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other,
conditions of employment; -
(c) Giving effect ' to the contract ' of July. 21, 1942, with Bronze
Workers Independent Union, or to any modification, extension, sup-
plement, or renewal thereof, or to any other contract, agreement, or
understanding entered into between the respondent and said organ-
ization relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment; provided,
however, that nothing in this Order shall be deemed to, require the
respondent to vary those wage, hour, seniority, and other substantive
features of its relations with, the employees themselves, which the
' See Matter of Peyton Packing Company, Ine, 49 N. L. R B. 828.
JOHNSON BRONZE COMPANY 819
respondent may have established in performance of any contract,
agreement, or understanding;
(d) Discouraging membership in United Automobile, Aircraft and
Agricultural Implement Workers of America, Local 69, affiliated with
the Congress of Industrial Organizations, or in any other labor orgy p
ization of its employees, by- discharging or refusing to reinstate any
of its employees, or in any other manner discriminating in regard to
thei,r-hire or tenure, of employment, or any term or condition of their
employment; - -
(e) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to'
form labor organizations, to join or assist United Automobile, Air-
craft and Agricultural Implement Workers of America, Local 69,
affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board -finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from and completely disestablish
Bronze Workers Independent Union as the representative of any of
its employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment;
(b) Offer to Thelma E. Bailey immediate and full reinstatement
to her former or a substantially equivalent position, without prejudice
to her seniority and other rights and privileges;
(c) Make whole Thelma B. Bailey for any loss of pay she may
have. suffered by reason of the respondent's 'discriminiation against
her, by payment to her of a sum of money equal to the amount which
she normally would have earned as wages during the period from the
date on which', absent the discrimination against her, she would have
been reinstated had the respondent recalled her in accordance with
and following such system of seniority, or other procedure as has
heretofore been followed in the conduct of the respondent's business,
to'the date of the offer of reinstatement, less her net earnings during
such period; -
(d) Post immediately in conspicuous places throughout its plant
at New Castle, Pennsylvania, and maintain for a period of at least
sixty (60) consecutive clays from the date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
I (a), (b), (c), (d), and (e) of this Order; (2) that the respondent
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will-take the affirmative action set forth, in paragraphs 2 (a), (b),
and (c) of this Order; and, (3)'that the respondent's employees are
free to become or remain members of United 'Automobile, Aircraft
and Agricultural Implement Workers of America, Local 69, affiliated
with the Congress of Industrial„'Organizations, and-that the re-
sponderit' will not discriminate against any employee because of mem-
bership in or activities on behalf of that organization;
(e) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days' from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER 'ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent has kept under
-surveillance meetings and meeting places of the Union.,
INTERMEDIATE REPORT
Mr..1Ienry Shore andMr. S. Craig Carnes for the Board.
Mr. Austin F. Canfield of Washington, D. C. and Mr. E. M. Flaherty-of Ne*
Castle, Pa for the respondent. ' ' • ,
Mr. Sherman K. Levine of New Castle, Pa. and Mr. Richard E. Reisinger of
Cleveland, Ohio, for the Union.
Mr: J. Quint Salmon of Beaver, Pa. for the Independent.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on January 20, 1943, by United Auto-
mobile, Aircraft and Agricultural , Implement Workers of America , Local 69,
affiliated with the Congress of Industrial Organizations , herein called the Union,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Sixth Region ( Pittsburgh , Pennsylvania ), issued its complaint
dated January ' 27; 1943, against Johnson Bronze Company, New Castle, Penn-
sylvania, herein called the respondent , alleging that the respondent had engaged
in .and was engaging in unfair labor practices within the meaning of Section
8 (1), (2), and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act . Copies of the complaint and first amended
charge, together with the notice of hearing thereon, were duly served upon the
respondent , the Union , and the Bronze Workers Independent Union, herein
called the Independent.
With respect to the unfair labor practices , the complaint alleged in substance:
(1)• that the respondent since March 1, 1942, disparaged the Union , advised,
urged and warned its employees not to join the Union , and discouraged member-
ship therein ; questioned its employees concerning their membership in the Union ;
attempted to ascertain the names and number of its employees who belonged
to the Union ; and kept under surveillance meetings of the Union ; (2) that the
respondent has from 1933 and at all times thereafter down to July 9, 1942,
dominated and interfered with the formation and administration of the Em-
ployees Representative Plan herein called the Plan ' and throughout said period
contributed support thereto ; ( 3) that the respondent has from on or about May
1942, and thereafter , dominated and interfered with the formation and admin-
istration of the Independent and contributed support thereto , and did on or
I Incorrectly named in the complaint as Employees Representation Plan.
JOHNSON BRONZE COMPANY 821
about July 21, 1942, execute an exclusive collective bargaining agreement-with
the Independent;' (4) that the respondent did, on or about October 21, 1942,
lay off and/or'discharge employee Thelma Bailey and has since failed and refused
to reinstate her because she joined and assisted the Union and engaged in con=
certed activities, and that the respondent's 'action with respect to Bailey was
for the purpose of discouraging membership in the Union; and (5) thaf, the
respondent by the above acts interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in,Section 7 of the Act.
The 'respondent filed with the Board's Regional Director at Pittsburgh, Penn-
sylvania, two motions both dated' February 1,'1943; for a bill of particulars' and
for extension of time within which to answer. The former motion was referred
to the Trial Examiner for disposition at the hearing and the latter motion was
granted by the Regional Director and an appropriate order entered thereon.
The respondent filed an answer dated February 15, 1943, admitting the juris-
dictional allegations of the complaint and denying the commission of the unfair
labor practices alleged. The Independent filed an answer dated February 5,
1943, in which it denied that it had been the subject of the respondent' s domina-
tion and interference, the recipient of its support and averred that it was
formed, and since formation, continuously administered by the free and self-
determined action of its members.
Pursuant to notice, a hearing was held from February 25, 1943, to March 6,
1943, at New Castle, Pennsylvania, before Mortimer Riemer, the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner. The Board, the
respondent;---a nd, ,the. Independent were fepresented by counsel,, the Union by
counsel and its representative, and all participated in the hearing. Full oppor-
tunity, to be heard , to examine and cross -examine witnesses , and to introduce
evidence bearing upon the issues was afforded all parties . At the outset of the
hearing, the Independent moved to intervene as a party to the proceedings,
which motion was granted, the intervention being limited however, to those
matters affecting the Independent placed at issue by the pleadings . Thereafter,
the respondent renewed its notion for a bill of particulars and the Board like-
wise moved that the respondent make paragraph 8 of its answer , more definite
and certain .' The respondent's motion was granted in part and the Board was
directed to furnish the names of the respondent' s agents committing or acqui-
escing in the commission of the acts allegedly constituting a violation of Section
'8 (2) of the Act. The Board's motion was denied. The respondent's motion
for a rule to exclude all witnesses was granted over the Board's objection.
At the conclusion of the Board' s case the respondent moved to dismiss the
complaint. The Independent joined in the motion generally and moved spe-
cifically to dismiss.,the allegations.zof A he :complaint =affecting it. The'motions
were denied . At the conclusion of the hearing, ruling was reserved on the mo-
tions of the respondent and the independent to dismiss . These motions ' are
,hereinafter disposed of. The respondent and Independent joined in the Board's
motion to conform the'pleadings to the proof which motion was granted. At
the close of the hearing, all parties were advised that they might argue orally
before the Trial Examiner. All parties except the Board waived this privilege.
The parties were also given the opportunity and-a date was fixed -for filing of
briefs with the Trial Examiner. Thereafter none of the parties filed briefs with
the undersigned.
2 Therein the respondent denied that Bailey's lay-off and its failure to reinstate her were -
due to her union membership and were on the contrary for good and sufficient cause not
connected with union membership or activity. I
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire,record in the case- and from his obseivatioi of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT -
1. 1HE BUSINESS OF THE RESPONDENT
Johnson Bronze Company, the respondeiit',herein, is a Pennsylvania corpora-
tion having its office and principal place of business in New Castle, in the Com-
monwealth of Pennsylvania, where it is engaged in the manufacture and sale
of bronze bushings and bearings. For the 18 months ending December 31, 1942,
the value of materials purchased for use at its New Castle plant, consisting
principally' of bronze and copper ingots, tin, antimony and lead, was approxi-
mately $500,000, of which approximately 60 percent was purchased from sources
outside the Commonwealth of -Pennsylvania. For the same period the value
of the net sales of the respondent's products at its plant at New Castle, was
approximately $10,000,000 of which 85 percent was sold and shipped' to points
outside the Commonwealth of Pennsylvania As of December, 1942, the re-
spondent employed approximately 1700 employees and at the time of the hearing
was engaged exclusively in war production. For the purpose of the proceeding
only, the respondent admitted that it is engaged in-interstate, commerce within
the meaning of the Act and subject-td the jurisdiction of the Board. ,
H. THE ORGANIZATIONS INVOLVED
United Automobile, Aircraft and Agricultural Implement Workers of America,
Local 69, is a labor organization affiliated with the Congress of Industrial Organ-
izations, admitting to membership employees of the respondent.
Employees Representative Plan was, until its dissolution, an unaffiliated labor
organization, admitting to membership only, employees of the respondent.
Bronze Workers Independent Union is an unaffiliated labor organization
admitting to membership only employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference with, domninatton and support of the Plan
History of the Plan
Sometime in the year 1933, the respondent posted notices on its,bulletin boards
notifying its employees that an'el'ection would be held to select employee repre-
sentatives. Thereafter, ballot boxes were set up in the various departments,
ballots were distributed and the employees voted for their representatives. This
and all ensuing elections were held within the plant and some of them on
company time. In 1934, an American Federation of Labor affiliate attempted
to organize the respondent's employees following which Plan activities were
suspended. In the fall of 1934, the Plan was revived and representatives again
elected. The inception and early history of the Plan are obscure due to the'
absence of any documents or records pertaining to its structure and function.
It nowhere appears however, that the Plan was created by employees or instituted
at their request a
3 As to the propriety of considering conduct occurring prior to the passage of the Act on
July 5, 1935,- in determining the significance of an employer's relation to the operation of
a labor organization subsequent to that date, see N. L. R. B. v. Pennsylvania Greyhound
Lines, 303 U. S 261.
JOHNSON BRONZE COMPANY .-823
In later years and down to the time of its dissolution the Plan functioned in
the following fashion. Every year elections were held within the plant to
determine employee representatives. All employees in the respondent's service
60 days or longer were allowed to vote for the nominees. Arthur Guinaugh,
who served as Plan representative for six terms testified that he `,`imagined" bal-
lots were prepared by Harry Davies, the respondent's personnel- director, who
arranged "all those things " Plan representatives had to be American citizens'
Ni'ith at least 1 years service in the respondent's employ. There'`is no evidence
of the basis upon which departmental representation was had other than that
each department elected its own representative. The representatives choose
their own chairman and met once a month or oftener on the can of Davies' Their
meetings were held on and off company property. At meetings representatives
presented grievances of the employees to Davies who made notes of each meet-
ing The manner in which grievances were adjusted, is not clear but apparently
Davies took up the grievances with department heads and thereafter acquainted
the Plan chairman of the action taken. The representatives made no attempt
to negotiate a contract with the respondent. Matters of discussion wgre confined
for the most part to grievances affecting individuals and physical conditions in
the plant.
The Plan existed without form, lacking a constitution and bylaws, a treasury,
and officers other than for its chairman. No provision was made for employee
meetings and they were never held; dues were never collected. According to
Guinaugh, the Plan during the last 3 or 4 years of its existence, acted under
rules patterned after those of an employee representation plan of the United
States Steel Corporation. In the first half of 1942, committee was at work on
the revision of these rules because employees had criticized them as "a little too
close on the company, favoring the Company's side." This revision was never
completed.
There is no evidence that, following passage of the Act in July 1935, the de-
cision of the Supreme Court in the Jones & Laughlin ° case in April 1937 or at any
time thereafter, the respondent changed its relationship to or course of conduct
respecting the Plan. It continued to function as originally conceived. As late
as May 1942, elections for plan representatives were held on company time and
the June 1942 meeting was called pursuant to notice by Davies e
B, Juterference,with, domination, a'id support of the Independent; tiiterference,
restraint, and coercion
1. The Union starts to organize
The Union commenced organization of the respondent's employees in mid-
March of 1942, when, handbills were circulated. outside the plant gates. At or
about this time P. J. Flaherty,, the respondent's president, according to the testi-
mony of Joseph F. Diffley, the assistant works manager, cautioned Diffley and
others to maintain an attitude of impartiality in view of the current Union ac-
tivity and to avoid all discussion of union affairs with employees. Difiiey
passed these instructions on to superintendents under him. That the instructions
were without controlling effect is apparent from what is related hereinafter.
{ On the occasions when representatives met* in the absence of Davies, discussion was
confined to matters of social interest such as picnics, etc.
'S N. L. R. B. v Jones & Laughlin Steel Corp, 301 U. S. 1.
The above findings'are based in part upon the undenied testimony of Orient Di Cola, a
Ilan representative and Guinaugh. Davies, who was employed by the-respondent at the
time of the hearing, was not called to refute, explain or deny on the respondent's behalf
the testimony of Di Cola and Guinaugh.
824 DECISIONS OF, NATIONAL ,LABOR, RELATIONS BOARD
In March 1942, according to the testimony of Angelo Marshall , a union mem-
ber and former employee, whom the undersigned credits, Anthony, Marino, second,
shift superintendent in the brass shop, told Marshall that he understood Harry
Delin, the Union's 'representative, had visited Marshall's home. He wanted
-Marshall to prepare a list of employees who had joined the Union and asked
when Delin would be at Marshall's home again. Marshall told Marino that
I)elin would be at his home on March 26, dnd that Marino could come himself
for the information he sought. According to Marshall, Marino said "he would
send a man down." At about 6 p. m. on March 26, according to Marshall's fur-
ther testimony, Archie Cumo, at the time a tool crib attendant and one whose
activities in connection with the Independent will be discussed hereinafter, ar-
rived at Marshall's house.? Del; previously invited to be present, arrived
shortly thereafter and according to the testimony of both Marshall and Delin,
Cumo asked questions about the Union, its advantages and benefits, and requested
the names of members in order to help the Union. Delin mentioned the names
of Raymond Thompson and Nick Panella as union members.
Marino denied all'participation in the above affair. Cumo, however, admit-
ted that he was at Marshall's house on or about March 26, 1942. Cumo testified
that'he arrived there between 6'and 6:30 p. m.; that he had-been invited to'be
present by Marshall but that Marshall gave no reason for the invitation and
none was requested ; that upon his arrival he and Marshall talked but Marshall
still gave Cumo no reason for his'requested presence and that he could not recall
the topic of conversation between the two men. He testified further that after
his arrival Delin appeared; and that'Delin and Marshall talked about the Union;
the former inquiring why Marshall had' not obtained more members and Mar-
shall replying in turn'that he did not know who belonged to the Union and with
whom he' could work. Then according to Cumo, Marshall introduced him' to
Delin and Delin invited Cumo to join the Union but Cumo replied he was not in-
terested . Cumo denied asking for the names of any Union members or that his
presence was to obtain the names or a list of Union members. The undersigned
is of the opinion and finds that Cumo's'presence at Marshall's, home was part of
a plan devised by Marino with the ' aid ' and assistance of Cumo to obtain the
names of Union'members for which conduct the respondent is responsible.'
Raymond W. Thompson joined the Union on March 21, 1942. About March
27, 1942, Harry Davies telephoned Thompson and told him that his"name was
being turned in to P.J. Flaherty by Anthony Marino for belonging to the Union.
The day following the telephone call, Foreman 0. F. Russler grid one of the re-
spondent's directors__approached Thompson and remarked : "Why, you belong to
the Union." Thompson acknowledged that he did and -Russler walked away.
Following this, however, Thompson asked a shop representative to arrange a
meeting with P. J. Flaherty. At the meeting attended by Thompson, P. J.
Flaherty, Preston Flaherty,'his son, and Davies, Preston Flaherty told his father
that Thompson's name had been turned in as a union member. P. J. Flaherty
told Thompson that he had a "perfect right" to'belong to the Union; asked him
if he,had left his machine to solicit members and remarked : "Tony Marino is
butting in too much" and instructed Preston Flaherty to tell Marino "to keep his
° Marshall testified that on March 26, "Mrs. Marino, that is Anthony's wife, and Mr.
Cumo came to my house . Mrs. Marino said he was Archie Cumo. and she leftfimmediately."
Both Cumo and Marino denied that Mrs. Marino escorted Cumo to Marshall 's home. Mrs.
Marino did not testify . The undersigned credits Marshall 's testimony in this respect.
8 Marshall 's testimony is consistent 'with the events that followed the disclosure of
Thompson and Panella as union members and which is discussed below. '
JOHNSON BRONZE COMPANY f -825'
nose out of things." Thompson admitted that P J. Flaherty's attitude toward i
his'union membership was one of complete indifference."
As indicated above the other employees disclosed to be a union member to
Cuino on March 26, was Nick Panella who had joined the'Union on that day.
According to Panella's credible testimony which the undersigned credits, Robert
W. Letera, chief of the respondent's plant police, called at his home on Saturday
afternoon March 28, 1942, to urge Panella's participation in an Army Day parade
to be held March 30, 1942. Both Panella and Letera then walked out to Letera's
automobile, in which Cumo was seated. Panella got into the back seat of the
car and all men engaged in conversation about the, Army Day parade, Panella
again being urged to participate. Then Cumo stated that he had heard Panella
was a union organizer -and that he had solicited. members, which latter point
Panella admitted. Letera asked Panella if Delin had higned him up, which
Panella also acknowledged, and how many employees Panella had solicited.
Letera then castigated Delin as a "big crook," selfishly interested in himself
and statedlthat if the Union organized the respondent's employees it would lead
to trouble and "look bad because we are Italians." Letera then remarked that
P,anella ought to get a raise and asked if he would drop the Union for a 5 cent`
an hour wage increase. Panella replied it was worth at least that much to
-drop his union affiliation.- Letera stated he could do "a whole lot" for Panella-if
he dropped the Union and asked him to "check" on Delin to ascertain if he was
not a "crook" and to.let Letera know on Monday, march 30, the outcome of his
investigation . On Monday, while Panella was at-work, Letera asked him what
he, thought of the "proposition" offered Panella on Saturday and Panella an-
swered that he was "sticking to the CIO". The undersigned finds, despite
denials by •Letera and Cumo, that the above incident occured substantially as
testified to by Panella30
9 These findings are based on Thompson 's testimony which was not denied . Marino
'was not questioned concerning this incident and Preston Flaherty, Russler and Davies
did not testify.
'0 Both Letera and Cumo admitted that they had -stopped on Saturday 'afternoon,
March 28, 1942 , at Panella 's home. Letera testified that his conversation with"Panella
was confined solely to ther subject of the,parade and both Letera and Cumo testlfied^
that it' was Panellawho raised the question of the Union, asking Cumo whether. he
would ""go along with" Panella in the Union and Cumo replied that he was not inter-
ested. Both men 'denied ' completely Panella's testimony about anti-unl-n remarks,
references to Delin, and any offer to obtain a wage increase for Panella . Letera denied
speaking to Panella on Monday, March 30. , The testimony, of-Letera and Cumo was,not
as perenasive ' as that of Panella and is contrary to the pattern cf the detailed and
eonvinein4 testimony which the undersigned has credited, relating to the Thompson and_'
Marshall Incidents . "
In addition to the fact that both Letera and Cumo admitted their presence at Panella's
home on March 28, the stated circumstances of, their visit was not , the, undersigned is
convinced , as fortuitous as the-respondent suggests . iFor example , Letera testified that
after a visit to one of his ' plant police on the 'mooning of Marsh 28, lie stopped " of
Panella's house,'inquired whether he was at home and on learning that he was at work,
remarked to Mrs.' Panella that he wanted to talk about the Army Day parade` On
leaving the plant that noon he picked up Cumo,, stopped to perform an errand , _partook
of a "few beers" with Cumo and then started to drive Cumo to the latter's house. On
this route they chose the street on which Panella lived and because the day was warm and
sunny, with many children at play in the street, and with due regard for the safety
of the children at play, Letera drove slowly and , chanced to observe Mrs . Panella on'the
porch and that she called to Letera that her husband was now at home. Whereupon
Letera stopped his car. Then-Letera got, out, went into the house and returned to the
car with Panella and all three men talked about ' the parade and the participation of
the "Italian boys" in it. Letera admitted that he called at no other employee 's house
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At or about this same time or early in April, Robert Miller, a machine setter
in, the babbitt shop, was observed distributing union application cards on coun-
pany time." Miller was called to P. J. Flaherty's office where he was told by
Flaherty that is'was against the law to distribute "pamphlets" during working
hours in the, plant but "all right" outside the plant, and asked where he had
obtained the material distributed.. Miller acknowledged that Flaherty said also
that he did not -give a, "good damn" what union Miller belonged to and that in.
his own mind he was satisfied, that P J. Flaherty' was indifferent to his union
membership but -did object to distribution of application cards during working
hours. The undersigned is not convinced' that P J.. Flaherty's expression of
neutrality were shared, by the respondent's supervisors and there is nothing
but vague and, uncertain testimony concerning the respondent's efforts to in-
doctrinate others with this neutrality.
2. The Independent is formed
In April 1942, some of the older employees in point of service formed an organ-
Nation known as the-Veterans Association. Except for its initial meeting held^i
outside the plant' and a later social event at 'which P. J. Flaherty presented
gifts' to certain employees,' it engaged in no other activities and disbanded.
Shortly after, however, accordii g to Guinaugh's testimony=, a "bunch" of ein-
ployees got together to "organize the' Independent because they understood-
that the Plan "was on its way out " Guinaugh, who was at the time ,chairman-
of the Plan, communicated with Nicholas Unkovic, a Pittsburgh attorney, whose
name had appeared in print in connection with his legal representation of an
independent union at "the Weirton Steel Company. Early in May, Guinaugh
accompanied by 8 or 9 employees went to Pittsburgh to meet with Unkovic.
Among those who accompanied Guinaugh on'this or later trips were A. Jones,
Henry Bruno, Wilfred Diamond, and Russell Graham, Plan, representatives whose
terms were to expire that month, Orient DiCola, a newly, elected Plan repre-
sentative for the ensuing year, Archie Cunio, and John Leonardson. According
to Harry,J. Fire, later elected president of the Independent, Unkovic was visited
every, Tuesday throughout the month of May. At one of these meetings with
Unkovic the name Bronze Workers Independent Union was selected, an applica-
tion for membership card devised- and definite plans made to' further the Inde-
pendent. At, this time rumors of the Union's activity were current throughout
the plant.
While Plan representatives were thus engaged in their efforts to organize the
Independent, there occurred an event in May 1942 not without significance. in
appraising the respondent's attitude towards the Plan and the Independent.
Marino again approached Marshall and asked,him how many employees he had,
"signed up" and Marshall answered "nearly all of the men on my turn." Marino
then stated : "I think.you are making a mistake. What, good is a union going
to do you? You can still switch on our side if, you want to, it is not too late."
[Italics added.] -
to arouse interest in the parade and stated that lie would not have called upon Panella
but for the fact that he happened to be in' the neighborhood of his hone that morning
Why Panella should have been selected for this visit in view of the Italian percentage
of a large group of the respondent's employees is not satisfactorily explained unless
it be, as the undersigned believes, Panella's membership in the Union.
" The supervisory status of machine setters is discussed hereinafter.
32 Cumo presided at this meeting -
These findings are based upon Marshall's credible testimony which the undersigned
accepts Marino denied the incident.
JOHNSON BRONZE COMPANY 827:
Late in May the annual election of Plan representatives was held, in the various-
plant departments. The election was conducted no differently than elections
held in previous years. _Marshall and employee Anthony Mraz, were the regular
nominees for election as Plan representatives from the brass shop. Earl Mc-
Clelland, third shift supeiintendent of the brass shop, gave Robert Pascarella, a
machine setter, some white gummed stickers and asked Pascarella to tell the,
employees to write in the name of Rocco Viggiano, a nominee who had failed to,
place on the ballot."
Although Guinaugh indicated by his testimony that by April or May, Plan
representatives were of, the belief,that the Plan was "on its way out", neither
the respondent- nor the representatives took any steps to dissolve it at -this time.
On June 1, 1942, the independent held its first public membership meeting in King
Humbert Hall in New Castle. Guinaugh, still Plan chairman, presided at
the meeting. Temporary officers were elected, application cards distributed
to those present and organizing plans discussed.
On June 5. 1942, the Plan representatives held their first meeting following,
the May elections 16 At this meeting Guinaugh, the Plan Chairman, Graham
and Henry Venditto resigned as representatives, and Samuel G. Staats was
elected to succeed Guinaugh as Plan chairman.10 Davies was present at the
meeting. On June 9, Adam Kwiat, temporary president and John 'Leonardson,
temporary secretary of the Independent, elected at the nieeting on June, I,
accompanied by Guinaugh, DiCola, and others again visited Unkovic in Pitts-
burgh." On this trip Leonardson obtained the balance of an original order of
about 1,700 application cards that the-'Independent had ordered printed for
its use.
During the first 10 days of June'the Independent 'obtained 242 members out
of approximately 1,300 employees.38 Apparently neither the Independent nor
the respondent were satisfied with this showing for the events of the next few
days, particularly June 11 and 12, compel the conclusion, urged by the Board and
based upon the testimony of Robert Pascarella and others, that the respondent
actively and forcefully supported and assisted the Independent in its campaign
to acquire members.
14 This finding is based on Pascarella 's testimony denied by McClelland . In addition Jack
Llewellyn testified that Harvey Riley, one of his co-workers , gave him some Viggiano
stickers , with instructions from Diffley , the assistant works manager , to vote for Viggiano.
Riley, a credible witness and son-in-law of Harry Davies , the personnel director , testified
that he distributed the stickers but that they had been given to him by McClelland.
Difey , admitted , however, that in a conversation with Viggiano wherein the latter ex-,
pressed disappointment over his failure to secure nomination, Difley suggested a write-in
campaign to Viggiano and_,gave hima . soma:-stickers; suggesting that Viggiano have his
friends write -Viggiano ' s name on the stickers to be pasted on the Plan ballot.
26 The meeting was held pursuant to the , following notice distributed to' the representa-
tives : - '
There will be a meeting of the Employee Representatives on Friday June 5, 1942, at
3 P. M at the regular nieeting room.
HARRY H. DAVIES .
Personnel Department
19 Guinaugh when asked if he resigned as Plan chairman before the Independent was
organized answered : "Well, no-yes, before it was organized , but not when we started "
la Leonardson testified that lie made four or five trips to Pittsburgh in June accompanied
on one or more of the trips by Russell Graham, who resigned June 5 as Plan representa-
tive, Diamond , a Plan representative , Cumo, and others.
11 Independent witnesses testified that they were advised by Unkovic to avoid solicita-
tion on company time or property and to confine their solicitation to areas removed from
plant property ., However, the undersigned is satisfied that the Independent as well as
the Union solicited members on company time and property. Except . for the warning
issued to Miller by P. J. Flaherty in April there is no evidence that solicitation was other-
wise restricted.
0
828 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
The incident at the Black Whale -
On June 11, 1942, Robert Pascarella, reported for work at 11 p. m.19 McClelland
called Pascarella to his office',and told him, the respondent "was letting him
'{McClelland] have that night" to solicit the employees for the Independent.
McClelland thereupon gave Pascarella a stack of Independent application cards
and a list of third shift brass shop employees,°with instructions to deliver the
cards to machine setters to enroll the employees in the Independent, then to,
collect the signed cards, check them against the employees' list and return them
to McClelland. Keeping sufficient cards for his own burring department, Pas-
carella distributed the balance among machine setters William Brazil, Lloyd
Green and Tommasello R0 Between the hours of 11 p. in. on June 11 and 7 a. in.
on June 12, Pascarella succeeded in getting the 18 female employees in his
department to sign cards. Sometime before 7 a. m. on June 12, Robert Pas-
earella,, picked up a number of the signed cards and at the end of the shift left
the plant with his friends and co-workers, Jack Llewellyn and Harvey Riley.
The above facts are found on Pascarella's credible testimony, which the under-
signed accepts.
Friday, June 12, was pay day. The three friends remained nearby the plant,
as was their practice until about 8 a. m. when they returned for their pay checks..
About 9 o'clock all three went•uptowilAto cash.their-checks. ,After this" Pascarella
and Llewellyn repaired to the Black Whale, a barroom nearby the bank where the
checks had been cashed. Either at' the time Pascarella and Llewellyn entered
the Black Whale or shortly thereafter, in which respect there is a conflict in
testimony, McClelland also arrived. All men had a few drinks and then Pascarella
and McClelland sat,down in a booth and began to check the signed application
cards against the prepared list of employees. About this time Riley rejoined his
companions.
10 Much , testimony was adduced concerning the duties and responsibilities of a, group of
employees called machine setters, the Board urging they were supervisory employees for
whose actions and conduct ' the respondent was responsible and the respondent urging the
contrary . Machine setters were -eligible for membership in and did join the Union and the
Independent . - In the brass shop, ' third shift , with which we are here concerned, there
were about 11 machine setters working directly under the shop superintendent ,- McClelland.-
Machine setters adjusted and set up machines , instructed new operators in their tasks, kept
production of their own groups flowing and reported lack of discipline and infraction, of
rules to McClelland . , They lacked power to,hire or discharge employees but it is'clear.that•
their recommendations or complaints ' about employees under them were considered by
management . -Pascarella received an,hourly base•wagerof 80 cents, substantially'more than
that of an operator . Moreover , employees testified that they took orders from their ma-,
chine setters who they considered their immediate superiors . The evidence reveals that
the day-turn machine setters were organized as a group to, discuss with management
problems , of production . The Board identified at the hearing minutes of meetings of
machine setters held in July 1940 , wherein S . F. Ward, then works manager , stated the
use of the term "machine setter" was - incorrect and the men were "assistant foremen."
At another meeting, in August 1940 , Joseph Diffiey referred to machine setters as "depart-
mental foremen ." Bylaws of the machine setters group limited membership to "departmental
foremen." P . J. Flaherty, the'respondent 's president , in cautioning Machine Setter Miller
concerning the latter 's union activities on company time said that Miller "was like an execu-
tive of the company . .. " The undersigned concludes and finds that' the machine setters
were and are supervisory employees . See N. L. R. B. v. Link-Belt Co., 311 U. S 584.
20 The solicitation was thorough . Wilfred Allshouse was asked to sign a card by Green
who was not his machine setter. Green said `the Independent was less costly than the
Union. Allshouse refused ,to sign a card . The next night , however, I. e., on the shift
starting 11 p in. June 12, Pascarella asked Allshouse to sign a card and he again refused.
Later in the evening or early morning of June 13 , Brazil, Allshouse's' machine setter, asked
him to sign ,and he still refused. Finally , Norman Pascarella , another machine setter,
solicited his membership and Allshouse succumbed 'to the pressure and signed an Inde-
pendent card . These findings\are based on the credible and uncontradicted testimony of
Allshouse.
JOHNSON BRONZE COMPANY 829
The meeting with McClelland in the ' Black Whale was accidental and not pre-
arranged . McClelland commented during his check of the cards that he did, not
see the names of Llewellyn and Riley . Llewellyn retorted : "I don't think you
will ever see my name on that list, either ." The card check took about 15 minutes
following which Pascarella,and-Llewellyn left the bar . According to Pascarella's
testimony, which the- uiidersigned accepts that night, i. e., June 12, he reported,to
work and returned the cards-and- the list. to McClelland. McClelland had Pas-
carella call Brazil on observing that one of his employees had failed to sign a
card y:
The findings above respecting the Black Whale incident are based upon'the
testimony of Pascarella , corroborated in all essential details by Llewellyn anti
Riley," the latter an extremely 'credible witness . McClelland denied the testi-
mony of Pascarella , Llewellyn and Riley in full , denying generally and specifically
any part in the entire incident , including his advice to Pascarella on the evening
of June 11. No other witnesses were called , however, to support his denial,
as for example, machine setters Green and Brazil, who were,available at the time
of the hearing . The Board's testimony was impressive not alone for its quality
but in corroborating circumstances as disclosed in the pressure exerted upon
Allshouse to sign a card , the testimony of Anna Nutzi , one ^ of Pascarella's
employees, that she was asked to and did sign a card on the night of June 11, and
the even more significant disclosure that between June 10 and June 13, the
Independent acquired a total of 428 members ." While it is true as the respondent'
sought to show after vigorous cross-examination bf the Board's witnesses;-that
there were discrepancies as to details in the testimony of Pascarella, Llewellyn
and Riley , these discrepancies were as to matters on which witnesses would be
likely to differ .24 Desbite these discrepancies -and Pascarella 's uncertain testi-
mony over the exact number of cards he returned to McClelland , there is a, single
connecting thread in the testimony of Pascarella, Llewellyn and Riley,,not upset
by cross-examination and not denied other than for the testimony of McClelland
which the undersigned cannot accept . Hence the undersigned finds that thereby,
the respondent ; acting through McClelland , the superintendent of its brass shop,
gave to the Independent strategic support and assistance and interfered with its
formation at its very inception and at a crucial period in the Independent's
efforts to surmount and overcome the organizing competition of the Union. For
this the respondent is responsible.
It is significant that during this time the respondent did nothing to make known
its claimed- policy of neutrality. The presence of the Union in the plant was
it matter of public knowledge. , Yet other than for the warning issued to Miller
concerning his union activities and P. J. Flaherty's instructions to Diffley and
21 It Is Possible that the missing card was that of Allshouse referred to in the footnote,
supra.
22 Riley is the son-in -law of Davies , director of plant personnel . He testified under -
subpoena and Impressed the undersigned as a careful 'and accurate witness
23 June 10 , 64 members ; June 11, 138 members ; June 12, 166 members ; June 13, 60,
members.
24 For example . Board witnesses were unable to agree whether McClelland was present In,
the Black Whale when Pascarella and Llewellyn entered ; the distance that separated the
booth in which Pascarella and McClelland sat, from the bar ; whether Llewellyn and Rlle3r
stood at the bar with their backs to the booth or stood sideways partially facing thq
uooth ; and which of the three Board witnesses first mentioned the Black Whale incident
to Delin, the ' Union ' s organizer. There is also uncertainty as to the exact number of
cards that McClelland turned over to Pascarella'and returned by the latter to McClelland
on June 12 . Pascarella at first testified that- he was given about 30 cards '; later he
changed his testimony to account for between 60 and 70 cards: He admitted that lie did
,iot count them. Pascarella testified without contradiction that on June , 12 or shortly
thereafter he-turned in 52 cards . at_the Independent ' s office that he had! collected from,
Norman Pascarella.
f
i
830 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
-others, there is no evidence that the respondentlat any time warned supervisors
or employees to cease their Independent activity. Machine setters were eligible
-for membership, not only in the Independent, but in the Union as well. But
eligibility for membership in a labor organization, or membership therein, does
not permit employees for whose conduct an employer is otherwise chargeable to
interfere with,. restrain, or coerce non-supervisory employees in their union
^activities.22 So far as P. 'J Flaherty's'=instructions concerning neutrality are
concerned, it is to be noted that they were not given to machine setters and
were never made known to the employees at large at any time Under these
circumstances where instructions were violated, the asserted defense of neutral-
ity is no defense 26
Events leading toJhe Independent 's recognition
At the next meeting of the Independent held on June 28, 1942, permanent
officers were eleiaed. Of the officers and stewards elected at this meeting the
following were or had been Plan representatives : Henry , Venditto , vice-president
and shop steward ; Peter Faraone , assistant -secretary -treasurer ; Rocco Viggiano,
shop steward ; Henry Bruno , shop steward ; Russell Graham , shop steward ; and
Robert Chappell , shop steward . A comparative chart of Plan and Independent
leaders is set forth below' Following this meeting and on June 30, the Inde-
pendent wrote a letter to the respondent in which it asserted that it now repre-
sented a majority of the respondent 's employees ; demanded. recognition as the
exclusive bargaining - agent'and requested a meeting to start negotiations for a
contract covering wages and other conditions of employment . Under date 'of
July 1, P. J. Flaherty replied stating that he "would be very glad indeed" to
,meet on Friday, July 3, with the Independent ' s representatives . Events culminat-
ing in recognition followed thereafter in quick succession.
On July 3, 1942, P. J Flaherty met with Fire , the Independent 's president and
' Leonardson , its secretary -treasurer . Flaherty asked . for proof that the Inde-
pendent represented a majority of the respondent 's employees and stated that
until such proof was submitted he would not bargain with the Independent.
25 N. L. R B v. Paciffo'Gas & Electric Co., 118 F. (2d) 780 (C. C. A. 9) See also
N L. R. B. v. Christian Board of Publication, 113 F. (2d) 678 (C. C. -A 8) and Matter of
Westinghouse Electric & Manufacturing Company, etc, 48 N. L R. B. 72
2e Swift it Co. v N. L. R. B. 106 F. (2d) 87. (C C. A. 10).
29 See the following table :
Persons involved Role in Plan Role in Independent
Diamond ---_--_- Representative until dissolution-_----- Organizer-went to Pittsburgh
Bruno----------- Representative-May 1941-42--------- Organizer, went to Pittsburgh, babbitt
shop steward.
Jones ------_---- Representative until dissolution------_ Organizer, went to Pittsburgh
Chappell-------- Representative until dissolution ------- Tool room steward
Guinaugh------- Chairman May 1941-42, resigned June Chief organizer, chairman June 1, 1942,
5, 1942 meetmg-
Graham---.----- Representative-resigned June 5, 1942 Organizer, went to Pittsburgh, ledaloyal
steward
Venditto---_-_--- Representative resigned Jwie 5, 1942_ - Vice-president and steward
Viggiano-------- Representative------------------------ Brass shop steward
DiCola----_----- Representative until dissolution ------- Organizer, went to Pittsburgh
Fire------------ No office---------------------------1-- President
'Leonardson------ No office------------------------------ Sec Treasurer -
Staats-_---_-_--- Chairman--------------------- No office
Faraone--------- Representative until dissolution- ----- Ass't , Sec-Treasurer.
l
JOHNSON BRONZE COMPANY - -831
Either at this meeting or within the next day or two Flaherty told Fire,that he
would have an accountant check the Independent's membership list against the
company pay roll. _ The Independent thereupon collected its membership cards
and on July 6, 1942, turned them over to Francis E. Sowersby, certified public
'accountant of New Castle
Shortly prior to July 6, Uukovic had warned Fire that before the Independent
could "get in"'it would be necessary to dissolvevthe Plan. Fire thereafter told
Staats, the Plan's chairman: !'We are trying to come in here with the'Bronze
Workers Independent Union It you guys are not doing any good, why don't
Sou disband?" Staats refused to comply with Fire's request. On July 9, how•
ever, P J. Flaherty wrote the Independent-stating that Sowersby was making
his check of the Independent's cards and that before an answer was given to
the Independent's,deniand for exclusive recognition, the respondent wanted proof
"that your Union has no connection with any other Union heretofore in effect
operating as the Employees Representative Plan in the 'Johnson Bronze Com-
pany." On the same day and before Independent had an opportunity to present
such assurances toFlalierty, the respondent, without consultation with or notice
to the Plan representatives, posted the following notice of Plan dissolution:
This Company hereby withdraws recognition of the Employees Represen-
tative arrangement of our employees for purpose of dealing with the Coliipany
concerning grievances, wages, or other conditions of employment.,
We direct that the Employees Representative plan be disestablished.. It
is understood, however, that this Company recognizes the right of its em-
ployees to self-organization and to bargain collectively through' representa-
tives of their own choosing, and to all other rights as covered by the Wagner
Labor Relations Act.
JOHNSON BRONZE COMPANY
P. J. FLAHERTY
President.
On July 11, P. J Flaherty telelhoned Sowersby demanding the results of his
check Sowersby had in fact on that day completed his count and was about
to leave for Flaheity's office with his report The report, kniiwledge of which
was furnished the Independent, showed that the Independent had submitted 929
signed application cards of which 853 bore apparently genuine signatures of
employees.
Because of the respondent's dissolution of the Plan and for the further reason
that representatives could no longer adjust grievances, Staats called the final
meeting of the Plan, in the respondent's clock office on July 13, 1942 Davies
attended the meeting. There the representatives adopted DiCola's inotion that
the Plan be "discontinued," and nine remaining representatives including Peter
Faraone, their assistant-secretary-treasurer of the Independent, and Robert
Chappell an Independent steward, signed the Plan's notice of dissolution,
which was subsequently posted.2° i
The respondent' having dissolved its Plan, the representatives having ratified
that action, and both the Independent and the respondent having received notice
of the Independent's majority status, the Independent on July 14, therefore,
answered the respondent's query of July 9, and assured the latter that it had
21 Previous to this date, Soweisby had been engaged by Flaherty to check the, Inde-
pendent s cards against the pay roll He obtained the card., from Independent's officers in
Flaherty's office on July 6 and was on completion of his task and after rendering his report
thereon paid by the respondent
29 The notice was typed by one of the respondent's stenographers. The Plan had not met
between June 5 and July 13, 1942.
832 DECISIONS OF NATIONAL , LABOR ,,RELATIONS BOARD
"no connection whatever with the Employees Representative Plan, either directly
-or indirectly; now or at any time in the past." ' In the letter the Independent
renewed its demand that the respondent "proceed , as soon as possible , with the
necessary meetings looking forward toward the negotiation of a contract. . -."
P. J. Flaherty acknowledged this letter under date of July 18 and fixed Monday '
morning, July 20, for a meeting "for - the purpose of entering into negotiations
pertaining to a contract....' ' At a,meeting of the Independent officers and""-"-
stewards on July 18, there was discussion of the demands to be made 'of the
respondent, the principal one being a demand for a general wage increase of
20'cents per hour.
A contract is negotiated
On. Monday morning, July 20, 1942, the Independent represented by all of its
officers and stewards and its attorney, Unkovic, met with P. J. Flaherty, the
respondent's president and J. P. Flaherty, vice-president and secretary.' The
Independent 'presented a proposed agreement drafted by, Unkovic and modeled,
according to Fire and Leonardson, after an agreement between, the Weirton
Steel Company and an unaffiliated union of its employees. About noon of the
same day, negotiations over the terms and conditions of the contract had been
completed and there remained only the matter of securing the members' approval
and the task of putting the agreement in final form. At membership meeting&%
held on the night of July 20, the proposed agreement was approved and it was
signed in ' final form on the morning of July 21, 1942 Except for disagreement
over the Independent's demands'for a general 20 cents an hour wage increase,
it-is hardly' probable that negotiations between the parties presented any basic
differences. Leonardson, for example, testified that there were many points
of disagreement but the speed with which negotiations were concluded belies
the existence of any real or fundamental differences between the parties.
It is also noteworthy that on July 20, Delin mailed P. J. Flaherty a registered
special delivery letter- from the New Castle postoffice, asserting that the Union-
represented a majority of the'employees and requesting recognition as a sole
bargaining agent. From the-return receipt introduced in evidence and the
testimony of William R. Hanna, New Castle's postmaster; it, is abundantly
clear that Flaherty must have received this demand at or about the time or
shortly after negotiations between the, parties had concluded on July 20. There
can be'no dispute of its receipt prior to the signing of the agreement on July
21. On July 21, Flaherty acknowledged Delin's letter stating that the Inde-
pendent's demand for exclusive recognition had been granted.3°
The agreement between the Respondent and the Independent provided for
exclusive recognition of the latter; and among other things granted, effective as
of July 27, 1942, a general wage increase of 10 cents an hour on all existing
rates covered by the agreement; made provision for paid vacations; recognized
seniority in the increase, decrease, recall or promotion of personnel ; established
a grievance procedure for settlement of grievances through independent stew-
ards, and provided that the agreement would remain in force for a period of
1 year and from year to year thereafter with a 30 day's notice of expiration
clause.91
80 See N. L R B. v. John Englehorn & Sons, 134 F. (2d) 553 (C. C. A. 3), where the
court said that: ". . . -the quick execution of the closed shop agreement, at a time when
the employer knew of claims by another labor organization that it represented a majority
of the employees, is itself evidential of assistance to the contracting union," citing
International Ass'n of Machinists v. N. L. R. B. 311 U. S. 72, 78, 79.
31 Someticne,in August 1942, Unkovic suggested to Fire that if he spoke to-P. J. Flaherty,
the latter might be willing to pay the cost of printing the agreement . Flaherty agreed to
do so. At the same time Fire asked if it would be possible to have the Independent's con-
I
JOHNSON'BRONZE COMPANY 833,
Conclusions with respect, to the Plan and Independent
The early history of the Plan is not clearly delineated. What is clear is'that
the Plan was conceived and fostered in, 1933 by the respondent and imposed,
upon the employees absent any showing that at that time or thereafter the em-
ployees- desired that kind of xepxesentation..,, It is also 'plain, that elections ,of'
Plan 'r^reseiitatives were held in the plant, and' that meetings were held on
call of Davies as management's representative. In its later history no change,
is indicated in the manner by which the Plan continued to exist and to operate.
Noteworthy is the fact that neither following passage of the Act, nor after April.
'12, 1937, when the Supreme Court of the United States, in passing on the validity
of the Act for the first time, decided that it was constitutional,' did the respondent
do anything to alter or amend its relationship to the Plan. Towards the end of
the Plan's career, the employees realized the Plan's impotence as an employee
representative, for revision- of its `structure was contemplated to loosen the
respondent's control of its own creature. The lack of opportunity for member-
ship meetings, absence of a constitution and bylaws, officers and treasury, indi-
cate further, the loose construction and ineffectiveness of the Plan as a truly
representative labor organization. -
The respondent's domination and control over the Plan is best illustrated by
the fact that after it had out-lived its usefulness and Plan representatives had+
succeeded' in bringing the Independent 'into' existence,- P. J. Flaherty,---without
consultation with the elected employee representatives, summarily ordered its
disestablishm'ent: The undersigned concludes and finds that following the pas-
sage of the Act, the respondent continued' to dominate and interfere with the-
administration of the Plan and contribute support to it and that it thereby
violated Section 8 (2) of the Act. In view of the fact that the Plan was dissolved.,
on July 9, 1942, the undersigned will not hereafter make any separate recom-
mendation with respect-to disestablishment of the Plan.
The Independent
The undersigned has found that the respondent dominated and interfered with
the administration of and contributed support to the Plan, until July 9, 1942.
Although the respondent knew as early as May 1942, that Plan representatives
-and others intended to form a new labor organization to replace the Plan, it at
no time thereafter took any steps to dissipate the continuing effects on the
employees of its past activities with respect to the Plan. Nor did, it, until July 9,
1942, by which time the Independent'was firmly established, advise its employees
that they were free to exercise' their rights guaranteed, in Section 7 of the Act ^
Quite the contrary, the respondent's entire course of conduct, until after the
Independent was established, was to allow the employees to accept it as a sub- '
stitute for the Plan. Indeed, the evidence compels the conclusion that the,
Independent was forced upon the employees as a substitute for the Plan and a
barrier to the Union's membership drive. But quite aside from the Black
Whale incident which, indicates unmistakably the pressure that was exerted
stitution and bylaws printed. Thereafter Scanlon, employed in the respondent's advertis-
ing department, took copy for both jobs to the printer NNho was instructed to bill the
respondent for the cost of printing the agreement and the Independent for the constitution.
Copies of the printed agreement' were thereafter turned over to the Independent and'
distributed by it to all of the employees.
m N. L. R. B. v. Jones & Laughlin Corp , 301 U. S. 1, and related' cases.
' There is no showing that any of P. J. Flaherty's neutrality instructions were ever
conveyed to the employees
I
601248-45-vol. 57-54
834 DECISIONS' OF' NATIONAL LABOR, RELATIONS BOARD
to force employees into the Independent, there are other compelling factors
which point in the same direction.
Agents of the respondent's 'illegally domtnated'creature, the Plan, helped or-
ganize the Independent shortly after the Union started its drive to enroll the
iespondent's employees The organizers, officers, and leading members of the
Independent' lVad,' with few 'e' ceptioiis; lieeu leads representatives under the
Plan, and the Independent was organized and functioning almost 6 weeks be-i
fore the respondent posted the July 9 notice that the Plan would be discon-
tinued. Under those circumstances,, the employees could not, be expected to
consider the Independent anything other than a continuation of and substitute
for the Plan. It is a reasonable inference, therefore, that officers and stewards
of the Independent who had been representatives under the Plan, would be
considered by the employees to be the representatives of management.'°' Nor
is the inference unjustified that the maintenance of a company dominated'
union down to and beyond the time when another union was ' organized was,
not a mere coincidence. This circumstance together with the respondent's de-
clared hostility to the Union forcibly suggests that complete freedom, of choice
,on the part of the employees was effectively forestalled.33 Moreover, during the
formative stages of the 'Independent's history, the ' respondent did nothing to.
mark the separation of the two organizations This it was required to do if
the Independent was to escape the stigma which attached to the Plan. The
respondent had a paramount duty which it failed to perform, to make it plain
to its employees that -it had ceased to favor one type of organization over
another and that the Independent (lid not have the favor of the respondent's
support as did the Plan. In this context the language of the Westinghouse
case 36 is controlling that : "the Board may take it as datum, in the absence of
satisfactory evidence to the contrary, that the employees will suppose that the
company approves the new, as it did the old, and that their choice is for that
reason not as free as the statute demands."
'Meanwhile, during the period from March \ 'througli to June, by which time
the Independent was in full motion, the respondent had indicated its hostility
to the Union by the activity of Marino and Letera. Once the Independent re-
quested recognition and a contract, the respondent hastended the process of
negotiation by selecting and paying an accountant to check its cards,-and with
the least, pos'sible 'delay 'fixed a 'day to coihinenice negotiations, belatedly 'dis-
solving the Plan and assuring its employees that their rights under the Act
would be protected. 'Bargaining with the Independent was summarily disposed
of in one day of negotiation.
In summary, the undersigned finds that the Independent was formed among
employees accustomed over a long period of time to being represented by an
organization, dominated by the respondent and by employees' prominent in the
dominated organization ; that among Independent's officers and stewards were
Plan representatives ; that it was formed when the'threat of genuine organiza-
tion by the Union had become real; and that the respondent, although it must
have been aware that a new inside organization was to be organized to replace
the Plan, at no time took any steps to alter the natural. conclusion of the
employees that the representatives of the old organization reflected the re-
spondent's desires in organizing the Independent, and, as a result, the Indepen-
3+N L R B v ThompsonProducts,Inc,130F (2d) 363 (C C A 6)
35 N. L. R. B v. Link Belt Co., 311 U. S. 584; International Ass'n of Machinists v.
N L R. B., 311 U S 72
36westinghouse Electric d Mfg Co v. N. L. R B, 112 F (2d) 637, 660 (C_C A 2)
affil (per curiam) 312 U. S. 660.
'JOHNSON BRONZE ' COMPANY ,835
dent was able to enroll a substantial majority of the plant's. 1,300 employees
within a mouth after it first started to recruit members.
In reaching these conclusions , the undersigned has considered the respondent's
-assertions that its aforementioned activities did not constitute unfair labor
practices because employees testified that they were not intimidated, that they
joined or did not resign` from the 'Uifion, that they continued to, wear union
buttons m the plant while at work and otherwise disclosed a continuing interest
in the Union In further support of this contention, there is the testimony that
in Api1il 1942, Machine Setter Robert Miller solicited union memberships on
company time and, that Robert Pascarella, after joining the Union in September
1942„ solicited members therefor on 'company time Finally, there is the testi-
mony of numerous witnesses for the Independent that they joined it voluntarily
and that it was the organization of their own choice, free and independently
made, and that it was neither a substitute for nor an outgrowth of the Plan.37
,First, as respects the pro-union activities of Miller and Pascarella this can be
said. The Union as well as the Independent solicited on company time. A
careful review of the entire record reveals clearly, however, that the only _two
instances of solicitation by machine setters on behalf of the Union -occurred
in April and in September or October after Pascarella had joined the Union.
It is likewise plain that efforts of machine setters on behalf of the Union were
sporadic and less compelling than those of the Independent. On-the other hand
the record is replete with instances of assistance on Independent's behalf by'
machine setters and higher supervisory officials, such as McClelland and Marino,
at the very time when such assistance was crucial to the Independent's success.
There is nothing in this record to indicate that the Union's solicitation approached
in intensity or thoroughness the acts of solicitation by the Independent, par-
ticularly McClelland's activity."
The other contentions of the respondent and Independent are likewise rejected
as being without merit. The question for determination is whether the acts
of the respondent constituted interference with, restraint, or coercion of its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Evidence concerning the effect or lack of effect of the respondent's acts on par-
ticular individuals is clearly not decisive of this issue. The reasonable in-
ference is that, anti-union conduct ,of an employer does have an adverse effect
on self-organization and collective -bargaining" Upon, the entire record, the,
undersigned finds that nothwithstanding the employee assertions relied upon,
the respondent did unlawfully dominate and interfere with the Independent and
coerce its employees with respect to self-organization.
Upon the basis of the foregoing facts, the undersigned finds that the Independ-
ent stands in the same position as the Plan, which the undersigned has found
to have been dominated and supported by the respondent ; 40 that the respondent
dominated and interfered with the formation and administration of, and con-
The Independent's counsel offered to call 800 members to so testify . The undersigned
rejected the offer, suggesting and permitting the Independent to call a fair sample of its
members, who, without adducing cumulative testimony , so testified.
81 See N L R. B. v. Link-Belt Co , cited supra.,
99 See Matter of Grower-Shipper Vegetable Ass'n, etc, 13 N. L. R B. 322, enf'd as
mod'd N. L. R. B. d. Grower-Shipper Vegetable Ass'n, 122 F. ( 2d) 368 (C C. A 9) ;
Western Cartridge Co v. N. L. R B., 134 F. (2d) 240 (C. C. A. 7).
i° See N. L R: B. v. American Mfg. Co., 106 F. (2d) 61 (C. C. A. 2), aff'd as mod'd, 309
U S 629, where the Circuit Court said : "In view of the identity of the persons who were
most active in the formation of this union , and the similarity of the means employed
.. . to set up the new organization , we think it stands in the same position as . . .
the Company Union of 1936 , and that the Board could properly order it disestab-
lished
,836 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
tributed support to , the Independent and that the respondent has been and is
interfering with,, restraining , and coercing its employees at its New Castle, plant
in the exercise of the rights guaranteed in Section 7 of the Act.
It is further found that the contract dated July 21, 1942, between the.respond-
•ent and the Independent is an agreement made with-an organization not freely,
chosen by the respondent's employees as.their collective bargaining representative
and constitutes an illegal interference with the exercise of the rights guaranteed
employees In Section 7 of the Act. -
The undersigned finds that by dominating and' interfering with the Adminis-
tration of the Plan, subsequent,to July 5, 1935; by dominating and interfering
with, the formation 'and administration of the Independent ; by interrogating
employees concerning their affiliation with the Union ; by seeking to ascertain
the names of its employees who had joined the Union the respondent has inter-
fered with, restrained and coerced-its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The complaint alleged that the respondent-contributed financial support to
• the Independent. The evidence does not support that allegation, and the under-
signed makes no finding to that effect. -
3. The issue of surveillance
The complaint alleged-that the, respondent through its agents and representa-
•a. d-
tives violated the Act by "keeping under surveillance meetings and meeting
4
places
s.-
of the Union."
Three Board witnesses and union' officers, Nick Panella, Walter M_. Meister and
Joseph Daugherty, testified in substance, that at a regular meeting of the Union
held on Tuesday evening, August 2T,'1942, the attention of the officers was
directed to the presence of Superintendent Marino on the street corner directly
opposite the union hall and entrance. The Union meeting place is on the third
floor of a building at the Northwest corner of Washington and Mercer Streets,
a busy intersection in New Castle. All three testified that when observed Marino'
had a 'piece'of paper in hand and appeared to be writing(thereon and looking
directly opposite from where he stood on the Southwest corner, towards the union
hall and its entrance. Pane'lla testified that he saw Marino around 8:30 standing
under street lights. Meister testified that he first saw Marino about 8:30 p. in.
and that he was still there a half hour later. • `Daugherty, the most impressive
of the three witnesses, testified to the same effect.
Marino testified that-while at work on the second, shift, it was his habit to
leave the plant, go uptown and eat at the Hut directly opposite the Union hall
or at the Hudson Lunch diagonally across from the hall. He admitted that on
occasions lie met Cumo at the Hut, the latter testifying that every night that he
was uptown he went into the Hut for a sandwich Although Cumo, who is
Marino's' close friend, acknowledged that he may have stood with Marino on
occasions on the sidewalk in front of the Hut and directly opposite the hall,
Marino who likewise admitted that he had stood on the corner, denied ever,
standing there with Cumo. Both men denied even engaging in surveillance in
general and Marino particularly on the. night of August 27, 1942.
In appraising the above evidence and the conflicts therein the undersigned
has considered the fact that the names of union officers were public knowledge
and that many union members wore their buttons while at work. Hence, as to
those employees at least, there was no need to spy upon'union meetings to learn
their, identity. While all the circumstances concerning this issue combine to
present a suspicion that Marino engaged in spying upon the Union, the under-
signed is not convinced that at least upon the date contended by the Board
Marino did in fact engage in surveillance.
JOHNSON BRONZE COMPANY 837
C. The refusal to rehire Thelma E. Bailey
The complaint alleges that the respondent did, on or about October 21, 1942,
discriminatorily lay off and/or discharge Bailey and thereafter refuse to re- _
instate her. The respondent admits Bailey's lay-off on October 21, 1942, and
a refusal to rehire but denies that either the lay-off or failure to\recall were,
--because of her ..union - membership or concerted activities. ' _
In 1942, due to the shortage of man-power and the requirements of the
Selective Service Act the respondent undertook the hiring of a considerable -
number of female employees . At the time of the hearing 40 percent of the
employed personnel in the machine shops were women. This necessitated a
training and adjustment period to permit the newly hired workers time to adapt
themselves to their new environment and learn simple machine operations and
factory discipline. Normally women started to work in the polishing or burring
department where bushings were finished . After a short training period an
adaptable worker was put on a simple one-tool machine operation . 'In the
event the woman -worker did not adjust herself to machine operations and there
'was no more adaptable machine work which she could do, the employee was
returned or kept at work in the burring department.
Bailey, formerly employed as a waitress , was hired by the respondent on
June , 22,,1942 , on the - night shift , in the. brass shop . She- had never previously
had.any machine experience . After a short period in the burring department
under Robert Pascarella , Bailey was tried out on the LeBlonde lathes without
successful adaption , returning to the burring department.. On July 20, Bailey
went to work as a,catcher in the grinder department , where she remained for
almost 7 weeks until September 10 when she returned to work in the burring
department . On October 5 or 8 , Bailey was transferred to the babbitt shop.
On October 21, Bailey was laid off along with other girls due to a shortage of
work caused by technological' improvements in the respondent 's production
methods.' Following the lay-off, Bailey returned seeking work until told by
Earl Davies , superintendent of the babbitt shop , not to return until further
notice. Sometime thereafter Harry Davies told Bailey that she would be one of
the first to be recalled . Although all girls , laid off at or about the same time
as Bailey have with stated - explainable exceptions , been recalled , Bailey alone
has not been reinstated. Most of the girls laid off at this time and subsequently
recalled were union members.
Bailey. joined, the: Independent shortly after, her employment started. She
joined -the Union in September but previous thereto had worn a union button
and distributed application cards and solicited membership for the Union while
at work. She solicited the membership of the men as well as women workers.
According to Edna Wade, Bailey's co -worker , Bailey's union activity was openly.
discussed in the shop. Bailey's union membership and activity were known to
McClelland . After Bailey was transferred to the ' babbitt shop in • October she
wore her union button and , "Continued signing the girls up, giving them buttons,
collecting dues." The undersigned is satisfied and finds that so far as the
record reveals Bailey was the most active union member among the` female
employees and that the respondent had knowledge of such activity'2
,Michael J. Difley, in charge of the respondent 's hiring under Harry Davies,
testified that Bailey was not recalled because Harry Stenger , the respondent's
0
41 At, the hearing the Board conceded there was, no , discrimination In the lay-off of
Bailey. I ,
u The record discloses no evidence of the existence of any company rule prohibiting union
activities on company property or time. The only instance of a reprimand for such activity
was to-Machine_'SatterM ller_for.his pro -union solicitation. 7
838, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
factory manager, had instructed him not to do so in view of Bailey's per-
sonnel record and a long history of complaints concerning the nature of, her
work. The'undersigned turns, therefore; to a consideration of the testimony, of
the respondent's witnesses and its records introduced in evidence in support of
this defense, in the light of the principle that union activity "in itself is no bar
to the discharge of an employee for legitimate reasons [but] it may well dis-
close the real motive actuating an anti-union employer in discharging such an
employee when the reasons given for the action do not ring true."'3
The respondent's witnesses testified that while Bailey worked on the LeBlonde
lathe she turned in an excessive amount of scrap; that she broke two drills
while operating the roughing lathe; and,that because of complaints by machine
setters to McClelland of her carelessness, excessive talking, wandering in the
shop, and` uncooperative attitude, she was taken off the grinders and returned
to the burring department.
Michael Diffley testified that in anticipation of a recall to work of the
balance of the girls laid off from the brass and babbitt shop around October 21,
he took their personnel cards and, efficiency records to Stenger Diffley recow-
mended the recall of all except Bailey and pointed out to Stenger that Bailey's
personnel folder contained three or four notes of complaint, two of which were'
signed by Joseph Diffley. This was in November 1942. A few days later Stenger
returned all the personnel cards to Michael Diffley. Between November 15 and'
December 1, 1942, Stenger called Diffley and instructed him to recall all girls
except Bailey, because of the complaints against her and her low efficiency."
Joseph --Difiley testified that as a matter of policy he made a written, reoor4l
of complaints against an employee, and that he sent them to the personnel de-
partment for entry on the employee's record. Although space is provided on
the respondent's personnel cards fora record of warnings, the nature thereof,
i. e., whether because of defective work, conduct, attitude, etc , and for ap-
propriate comment by supervisors, it is noteworthy that, Bailey's card, a copy of
which was introduced in evidence, is completely blank 'in this respect. Difey;
testified further that in all he made four memoranda on Bailey's conduct based
on complaint, within 3 weeks of her employment of Machine Setter Rigby,;
,another in July based on complaint of Machine Setter Green ; and in the same
month of July, two based upon Pascarella's complaints." Apparently Diffley
did not consider consequential enough `to reduce to writing the complaint of
McClelland, that Machine Setter Nuzzo objected to, Bailey's work as a catches,
yet it was allegedly for that reason that Bailey was moved to the burring de-
partment. The absence of a written note of this matter is significant in con-
sidering Stenger 's testimony referred to below.
There was introduced in evidence a- typewritten list,, of-Tapproximately, 13
notations, compiled - according,to 'S'teiiger. by him from` the loose-, memoranda-
contained in Bailey 's, personnel folder . - ' Stenger's testimony concerning this
document is worthy of detailed consideration. He testified that when Michael
Diffley brought him Bailey's personnel folder containing a "half dozen or more"
93 North Carolina Finishing Co. v. N L .' R B , 133 F ( 2d) 714 (C C. A. 4), citing Burk
Bros. V. N. L. R . B , 117 F ( 2d) 686; 687 (C C. A 3)
94 On December 22, 1942 , Michael Diffley was asked by E. M. Flaherty to produce , Bailel;'s
personnel folder and in response to the request all he could find was , her personnel card,
absent the three or four notes of complaint , that he testified were previously, there and
shown to Stenger. Diffey could not account for their loss. i -
as Diffley testified that William Vaughn, a grinder machine operator , was one of the first
to complain to McClelland about Bailey . Vaughn denied that be ever complained to Mc-
Clelland or Difey about Bailey's "indifference to her work."
JOHNSON BRONZE COMPANY 839'
loose memoranda, the possibility of their loss occurred to him and he therefore
had one of his secretaries type the information contained in the memoranda.98
Thereafter he clipped the typed sheets to Bailey's personnel, card and returned
all the material to Michael Diffley. Diffley, however, never saw this document
and he testified that on December 22, 1942, all he could discover in Bailey's
folder was her personnel card devoid-of any notation, warnings, or the paper
allegedly prepared by Stenger. What had happened to the document, and its
whereabouts between the time of its compilation by Stenger and its production
at -the hearing is not explained by any witness." Although this document is
seemingly complete enough, Stenger testified further that in addition he re-
ceived numerous verbal complaints about.Bailey, "probably;" from "some of the
superintendents" in the babbitt or brass shop: Stenger asserted that failure
to record complaints on Bailey's personnel card was due to lack- of "room."
This might- explain the failure to record all the complaints, it cannot excuse
failure to enter some on a card expressly devised to contain that information.
In short,, the undersigned is of the opinion that the document is without
probative value, that its contents and method of compilation when considered
in relation to its unexplained absence from Bailey's folder and the inconsistent
and conflicting testimony of Stenger and Joseph and Michael Diffley fail to,,
support the respondent's defense that these complaints about Bailey were one
reason for her failure to be recalled Thai Bailey was not an exceptional
machine operator is clear from the record ; on the other hand it is equally
plain that her work was-notrbelow- average." "Pascaiella; for, example,, testified, _
that Bailey's work was "average" and "in comparison with,the other girls, it
was,about the same." Edna Wade testified that Bailey's work "compared the
same as the other girls." What is significant, however, about Bailey's work
is that complaints about it were never the cause of a lay=off or discharge prior
to refusal to reemploy her and the respondent made every effort to find machine
operations fitting to her skill and ability, keeping her on the grinders, for
example, for about 7 weeks 49 Moreover when work slacked off in the brass
shop, Bailey was transferred to the babbitt shop' where she remained until
October 21, 1942. -
4' Stenger testified that all the notes in the file were signed by Joseph Diffley and that
before preparing the list he discussed the notes with him. Both Dimeys testified that
at most only two to four notes were signed by 'Joseph Difflev and the latter at no time
testified that lie discussed the preparation of the list or the individual complaints against
Bailey with Stenger
41
The document states that Bailey was taken of the grinders because of complaints
made to McClelland by Nuzzo, the machine setter. McClelland testified that Joseph
Diffley reduced this incident to writing . Joseph Di ®ey testified to the contrary that the
only matter lieseEipced to riti,g-;were, those, of,ithe_complaints,,by Rlgby;;Green, and
Pascarella. The document , is. interestApg";for another . reason. If it is ah accurate
recordation of memoranda actually in Bailey's personnel folder, it shows that matters
other than those relating to complaints ' or warnings found their way into the file.
Notation was made of the fact that Bailey protested the disparity in, wages between
the babbitt and brass shop and that due to a swollen wrist Bailey was unable to perform
certain machine operations.
"'On one occasion when Bailey worked as a catcher on the large grinders, she caught
for two operators, Vaughn and Venditto, on the same shift. Both operators turned in
time for Bailey and she was credited with 16 hours of work for the purposes-of bonus
calculation . The undersigned is satisfied that Bailey knew this and hence her complaint
to McClelland when she was deprived of 8 hours bonus time was not justified. Joseph
Diffley testified that. "We have cases like that every now and then.'. . .
99 Joseph Difitey testified that had the responsibility been his he would have dis-
charged Bailey in July. The undersigned can conceive of no one else who was more
responsble for such action if cause actually did exist.
I
S40 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
The other reason given by-the respondent for failure to recall Bailey was her,,
low efficiency as) distinguished from her personnel record. The respondent
posts daily a record of the ;daily efficiency of those employees who are paid on
-the hourly wage plus bonus incentive basis.50 For those hours in which the
-employee is on non-bonus'work a "D" is used on the card to indicate employ-
ment at day work rates.
Stenger and Michael DifHey: testified that, when -Bailey's recall was being
-considered, Stenger had before him the daily efficiency record of Bailey during
the entire course of her employment" As the table produced in the margin
will reveal,62 Bailey's efficiency compared favorably with that of others who
were recalled. Clearly in the undersigned's opinion, the efficiency record of
Bailey cannot be cited to justify her rejection on that account"
50 Each job operation has a fixed standard number of pieces to be produced per hour.
'That number divided into the actual number of units produced equals the standard hour
worked. The standard hours divided by the actual number of hours worked gives the
-worker's efficiency for the operation. The respondent pays a bonus for all efficiencies
]of 70 percent or better. -
bl This card was likewise lost. A copy of it recalculated from original time records
and other data was introduced in evidence.
w Employee Month
Total
days
worked
Below
70% ef-
ficiency
Above
70% ef-
ficiency
Day Work
-
Bailey--------------------------------- June---- 7 5 2. 0.
July_____ 26 6 13 7.
Aug_____ 26 0 - 26 0.
Sept____ 21 2 19 0.
Oct_____ 15 4 1 10. '
'Caravella______________________________ Sept ---- 19 - 1' ' 14 4 reinstated -12/15/42. -
Oct____: 16 7- 8 1 ,
Henzel-------------------------------- Sept---- - 3 0 ,. -2 1
Oct_____ 15 8 5 2
Chamberlain__________________________ Sept____ 23 3 15 5 reinstated 1/8/43.
Oct_____ 13 6 6 1. -
Tommelleo____________________________ July ----- 13 7 0 6 offered reinstatement
not accepted.
Aug ----- 26 - 5 20 1.'
Sept---- 20 ' 3 16,
•
1.
Oct ----- 16 5 9 2.
Fabini_________________________________ July_'___ 14 -4 3 7 reinstated 12/15/42.
Aug____- 25- , 13 10 2. -
Sept ---- 24 5 19 0.
Oct_____ '19 3 15 1
LaRosa __________________!------------- Sept_' 20 '3 15 2 offered reinstatement
' refused-
Oct ----- 19 2 10 7.
Frank_________________________________ Aug ----- , 4 0 0' 4 reinstated 12/14/42.,
Sept____ 24 ' . 9 ' 9 6.
Oct ----- 18 ' 4 14 0.
Mundziak------ _______________________ Aug_____ 11 - ' 4 1 6 reinstated 12/22/42.
Sept,,,,. ' 25 , 9, 12 4.
Oct_____ -18 7 7 4.
Mirello___'____________________________ Sept__ _ 7 2 2 3 reinstated 1/1/43.
Oct_____ 18 10 5 3. '
La Marca_____________________________ Sept____ 23 10 10 3 reinstated 12/21/42.
Oct ----- 18 7 8 3.
Dates included: first day of employment to day of lay-off in Oct 1942. -
bJ Ben Taylor, in charge of the respondent's check-in-booths, where the efficiency ` records
of ,the workers are calculated, testified that he prepared, especially for the hearing a record
of Bailey's 'efficiency while on day work. He admitted, however , and it is clear that his
O
JOHNSON BRONZE, COMPANY . 841
Since the respondent' admits ' lack of work was not the cause of its failure
'to recall, Bailey; I since Bailey was told by Davies that she would 'be one of the
first to be recalled and because neither Bailey's work record nor her'efficiency,T
the only reasons cited, explain 'the respondent's refusal to recall Bailey, there
remains only to be considered the effect of the oral complaints. made to Stenger
And Joseph Diffley by McClelland and several machine setters. These complaints.'
were directed to Bailey's alleged excessive talking, her alleged failure to stay at
,her machine and. Bailey's complaint about wage scales in the' babbitt shop.
Stenger was aware of the complaints when he made his decision not to recall
Bailey. It is found above that Bailey while working in the babbitt shop in Octo-
ber, "Continued signing the girls up, giving them buttons,, collecting dues." It is
properly inferable that the oral complaints about Bailey had reference to such
activity on' ,her part in October and prior thereto, and the undersigned so finds.
Since the respondent's attempted justification of its refusal to recall Bailey, in the
light of the circumstances outlined above, finds no support in the evidence, the
undersigned concludes and finds that the real reason for the respondent's failure
to recall Bailey was her union membership and.concerted activity. The under-
signeditherefore finds that the respondent refused to recall Bailey on and after
October 21, 1942, not because of her personnel record or inefficiency but because
it was-opposed to her union interest, activity, and membership. By thus refus-
ing to rehire Bailey, the respondent discriminated in regard, to her hire and
tenure, of employment, and thereby discouraged membership in the Union and
interfered -with, restrained, ',and coerced its employees in the exercise of the
,rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM MERCE
The activities of the respondent set forth yin Section III above, occurring in.
connection with its operations 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.
V. THE REMEDY
.
Having found that the respondent has engaged-in and 'i's engaging-in unfair
labor practices, the udersigned will recommend that'it cease and desist there-
from and take certain affirmative action designed to effectuate the policies, of .
the-Act and to restore as nearly as possible the status quo existing prior to the
commission of the unfair labor practices.
The undersigned has found that subsequent to July 5, 1935, the respondent
dominated and interfered with the administration of, and cgntributed support
,to, ,the Plan. Because,of the respondent's dissolution of the Plan on July 9,
1942, no separate recommendation will be made hereafter respecting the Plan.
The effects and consequences of the respondent's domination, interference, with,
and support of the-Plan down to the latter date, as well as its domination and,
figures in this regard,' where not available to Stenger and Michael Diffley when they con-
sidered Bailey's recall. Their validity, if any, would be to justify In retrospect the failure-
to recall Bailey on the grounds of her inefficiency. Taylor's calculations were not used by
Stenger as a ground for rejecting Bailey, hence they have slight probative value, In'seeking
to determine the real reason why Stenger decided Bailey wass inefficient.
'4 In fact when questioned whether she had ever complained about her efficiency rating,
Bailey testified without contradiction that she asked McClelland about it and he replied -'
"Don't worry about that . Everybody knows there isn't enough work , and you are from
one job to another . You-can bring it up." '
S42 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
interference with the formation and administration and support of the Independ-
ent, as found above, as well as the continued recognition of the Independent
as a -bargaining representative of its employees, constitutes a continuing ob'
staele to the free exercise by its employees of their right to self-organization
.and to bargain collectively through representatives of their: own 'choosing. Be-
cause of the respondent's illegal conduct the Independent is incapable of serving
.the:>respondent's employees as a genuine collective bargaining agency Accord'
°ingly,'the undersigned will recommend that the respondent disestablish and
'withdraw all recognition from the Independient as representative of any of
its employees for the purpose of dealing, with it concerning grievances, labor
'disputes, wages, rates of pay, hours of work, or other conditions of employ-
-ment.56 The contract of July 21, 1942, between the respondent and the Inde=
pendent which by its terms is still in effect, was and is part of the respondent's
plan to frustrate self-organization,-and to defeat collective bargaining by its
employees.
The undersigned will therefore recommend that the respondent cease and
desist from giving effect to this or any other contract with the Independent
respecting grievances, labor disputes, wages, rates of pay, hours of work, or-
other conditions of employment. Nothing in the recommendation that follows,
however, shall be deemed to'.vequire the respondent to_ vary or abandon the
wage rates' or' conditions of employment which the respondent may have es-
tablished in conformity with the contract as extended, renewed, modified,
supplemented, or superseded.`
The undesigned has found'that the respondent discriminated in regard to the
hire and tenure of employment of Thelma E. Bailey because of her union mem-
'bership and activity. To effectuate the policies of the Act, the undersigned will
.recommend that the respondent offer Bailey immediate and full reinstatement
to 'her former or substantially equivalent position, without prejudice to her
seniority and other rights and privileges. It is impossible from the record and
from an examination of the respondent's records to determine exactly when
Bailey, absent unlawful discrimination against her, would have been reinstated.
Accordingly, the undersigned's 'recommendation with respect to back pay will
make due allowance for this circumstance. The undersigned will recommend
that the respondent make payment to Bailey of an amount equal to that which
she would have earned as wages during, the :.period from- the 'date on which,
absent discrimination 'against her, she would have been reinstated had the
respondent recalled her in accordance with and following such system of
seniority or other procedure as has heretofore been followed in the conduct
of the respondent's business, to the date of the offer of reinstatement,. less her
net earnings', during said period.
} Upon the basis of 'the foregoing findings of fact and upon' the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW -
1. United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 69, affiliated with the Congress of Industrial Organizations, and
15 N. L. R. B. v. Link-Belt Co, 311 U. S. 584; H. J. Heinz v. N. L. R. B., 311 U. S 514.
5e National Licorice Co. v. N. L. it. B., 309 U. S. 350; N. L. it. B. v. Stackpole Carbon Co ,
105 F (2d) 167 (C C A. 3), cert denied 308 U S 605 .
•b-, By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which.would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, etc , 8 N L R B 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered as
earnings. See'Repiiblic Steel Corporation v N L R B , 311 U. S. 7.
n
JOHNSON BRONZE COMPANY 843
Bronze' Workers Independent Union, are labor organizations; and Employees
Representative Plan was a labor organization, within - the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the tadministration of Employee's Repre-
sentative Plan, and contributing support to it, the respondent has engaged in
unfair labor practices, within the meaning of Section 8 (2) of the Act.,
'3 By domi'nliMigland interfering with the formation and administration of
Bronze Workers Independent Union. and contributing support to it, the re-
spondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act.
4 By discriminating in regard to the hire and tenure of employment of
Thelma E Bailey and thereby discouraging membership in the United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, Local 69,
affiliated with the Congress of Industrial Organizations, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section S. (3) - of the Act. _
5. By interfering with, restraining, and coercing its employees in the exercise
of the fights, guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
6: -The aforesaid • unfair. labor,, practices- are-unfair labor, practices-affecting
commerce, 'within the meaning of Section 2 (6) and (7) of the Act.
7. The respondent has not violated Section 8 (1) of the Act by engaging in
surveillance.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, Johnson Bronze Company, New
Castle, Pennsylvania, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or contributing
support to, -Bronze Workers Independent Union, or with the formation and
administration of, or contributing support to, any other labor organization of
its employees ; -
(b) Recognizing the said Independent as a representative of any of its em-
•ployees and giving effect to or performing the contract of July 21, 1942, with the
Independent, or; any,'extension or `renewal thereof, or any other agreements,
understandings, or arrangements entered into with the Association, respecting
grievances, rates of pay, hours of work, or other conditions of employment ;
(c) Discouraging membership in United Automobile, Aircraft and Agricultural
-Implement Workers of America, Local 69, affiliated with the Congress of In-
dustrial Organizations, or in any other labor organization of its employees,
,or in any other manner discriminating in regard to their hire and tenure of
employment, or any term or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing its em-,
ployees 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 undersigned finds will
effectuate the policies of the Act :
(a) Completely disestablish Bronze Workers Independent Union, as the repre-
sentative of any of its employees for the purpose' of dealing with the respondent
844,, DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
concerning grievances , labor disputes , wages, rates , of pay, hours of work,, and
other conditions of employment;,
(b) Withdraw all recognition from the said Independent as the representative
of any of its employees for the purpose of dealing with-'the respondent con-
cerning grievances, labor. disputes, wages, rates of pay, hours of work, and
other conditions of - employment ;
(c) Offer to Thelma E. Bailey immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her seniority
or other rights and privileges ;
(d) Make whole Thelma E. Bailey for any loss of pay she may have suffered
by reason of the respondent's discrimination against her in regard, to her -hire
and tenure of employment, in the manner set forth in the Section entitled "The
remedy", less her net earnings 58 during said period ;
• (e) Post immediately in conspicuous places throughout its plant at New
Castle, Pennsylvania, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating: (1) that
the respondent will not engage in the conduct from which it is,recommended
that it cease and desist in paragraph 1, (a), (b), (c), and (d) of these recom-
mendations; (2), that the respondent will take the affirmative action set forth
in paragraph 2 (a), (b), (c), and (d) of these recommendations; and (3) that,
the" respondent's employees are free to , become or remain members of the
United Automobile, Aircraft and Agricultural Implement Workers of,Amerlea,
.Local 69, affiliated with the Congress of Industrial Organizations, and, that the
respondent will not -discrimihate against 'any employee-because of membership
In that or any other labor organization; -
(f) Notify the Regional Director for the Sixth Region in writing within ten
(10) days from the date of this Intermediate Report what•steps the respondent
has taken to comply herewith.
,It is further recommended •that unless on or before ten-(10)' days from the
receipt of this Intermediate Report the respondent notifies said - Regional
Director in writing that it will comply, with the, foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
It is also recommended that the allegation of the complaint that the respond-
ent engaged in surveillance be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
.National Labor Relations Board, Series'•2-as amended, effective October 28,
1942-any party may-within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham. Building, Wash-
ington, D. C., an -original.-and fourwcopies.of -a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceedings (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of : a brief in support
thereof. ' As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board, request therefor must be- made in
writing-to the Board within ten (10) days from the date of the order transferring
the case to the Board. - • `
Dated April 21,' 1943.
&ER RIEMER,•
Trial Examiner.
"8 See footnote No. 57, supra.