North American Refractories Co.

National Labor Relations Board - Board Decisions

Sep 29, 1943

52 N.L.R.B. 1049 (N.L.R.B. 1943)

In the Matter of NORTH AMERICAx REFRAcroRn s COMPANY and UNITED
BRICK AND CLAY WORKERS OF AMERICA (A. F. L.)
Case No. C-2712.-Decided September 09, 1943
DECISION
AND
ORDER
On August 28, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist from the unfair labor prac-
tices found and take certain affirmative action, as set out in the copy
of the 'Intermediate Report attached hereto, and that the complaint
be dismissed as to the remaining allegations. Thereafter the Union
filed exceptions to the Intermediate Report. No request for oral argu-
ment before the Board at Washington, D. C., was made, by any of
the parties. The Board has considered the rulings of the Trial Ex-
aminer at the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby, affirmed. The Board has considered
the Intermediate Report and the entire record in the case, and hereby
affirms and adopts the findings, conclusions, and recommendations of
the Trial Examiner.
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, North American Refrac-
tories Company, Lock Haven, Pennsylvania, and its officers, agents,
successors and assigns, shall : _
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise 9f 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 bargain-
ing or other mutual aid or protection, as guaranteed 'in Section 7 of
the Act.
52 N. L . R. B., No. 182.
1049
1050 DECIS'ION'S OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places throughout its plant
at Queens Run in Lock Haven, Pennsylvania, and maintain for a period
of at least sixty (60) consecutive days from the date of posting, notices
to its employees stating that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraph 1
of this Order;
(b) Notify the Regional Director for the Sixth Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
AND IT 18 FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated the Act with respect to Albert Griffin,
be, and it hereby is, dismissed.
INTERMEDIATE REPORT
F. Craig Carne , Esq., of Pittsburgh , Pa., for the Board.
Monroe A. Loeser, Esq., of Cleveland , Ohio, for the respondent.
STATEMENT OF THE CASE
Upon a charge duly filed September 8, 1942, by United Brick and Clay Workers
of America, (A. F. L.), 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 July 22, 1943, against
North America Refractories Company, herein called the respondent, alleging that
the respondent has engaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and charge accompanied by notice of hearing were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleges, in substance,
that the respondent, since December 1941, and up to the present time, at its Queens
Run plant, at Lock Haven, Pennsylvania, has authorized, instigated, and acqui-
esced in statements and expressions disparaging the Union, advising and urging
its employees to refrain from joining the Union and discouraging membership
in the Union, primarily through the activity in that regard of R. R Straub ; that
on or about August 28, 1942, the respondent discharged Albert T. Griffin, one of
its employees at its Queens Run plant, and at all times since that time has refused
and failed to reinstate the said Griffin because of his membership in and activities
on behalf of the Union and because he engaged in concerted activities with the
other employees of the respondent for the purpose of collective bargaining and
other mutual aid and protection, and in order to discourage membership in the
Union.
In answer to the complaint the respondent admits those allegations pertain-
ing to its corporate structure and business and to the description of the Union
as a labor organization but denies all the other allegations of the complaint.
Pursuant to notice, a hearing was held on August 9, 1943, at Lock Haven,
Pennsylvania, before R. N. Denham, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent were repre-
sented by Counsel and participated in the hearing where full opportunity was
NORTH AMERICAN REFRACTORIES COMPANY 1051
afforded them to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. No appearance was made on behalf of the
Union. At the close of the hearing counsel for the Board moved to amend the
complaint to conform with the proof. Without opposition, the motion was granted
to apply to all pleadings herein, for the purpose of correcting names, 'dates, and
other minor recitals not affecting the issues in the case. Oral argument at the
close of the hearing was waived by all parties as was the privilege of filing briefs
with the Trial Examiner.
On the basis of the foregoing, after having heard and observed all the wit-
nesses, and upon the entire record herein made, the undersigned makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is and since 1929 has been a Delaware corporation engaged in
the manufacture and sale of fire clay brick, fire clay mortar, and other fire clay
refractory products. It owns and operates plants in the States of Ohio, Missouri,
Kentucky, Maryland, and the Commonwealth of Pennsylvania. The only plant
involved in this proceeding is the one known as the Queens Run plant at Lock
Haven, Pennsylvania. The purchases of materials by the respondent for use
at its Queens Run plant during the past 12 months amounted to approximately
$,100,000, of which approximately 15 percent came from outside the Common-
wealth of Pennsylvania. For the same period the value of the finished products
of the respondent's Queens Run plant was $400,000, approximately 50 percent
of which were shipped outside the Commonwealth of Pennsylvania. The re-
spondent presently employs approximately 2,500 persons of whom 185 are
employed at the Queens Run plant. For the purpose of this proceeding only, the
respondent admits that it is engaged in interstate commerce within the meaning
of the Act and is subject to the jurisdiction of the Board.'
II. THE ORGANIZATION INVOLVED
United Brick and Clay Workers of America, (A. F. L.) is a labor organization
admitting to membership the employees of the respondent at its Queens Run
plant.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In accordance with the custom of the industry, production employees of
the respondent are paid either on a quota basis or on a straight time basis,
depending upon the character of the work they may be doing from time to time.
A quota or "turn" consists of making 2500 9-inch bricks or the equivalent. The
bricks are shaped into molds by a molder after which they are taken from the
molding table to the floor by off-bearers, preparatory to being moved to the
ovens for firing. This'work is ordinarily done by a crew consisting of a molder
and two off-bearers who work under him. The molder and his crew, when
working on the quota or turn, are said to be working on "contract" work.
The molding of 2500 bricks or their equivalent in larger pieces constitutes what
is recognized as a full 8-hour day of work so that when the molder and his crew
have completed the quota of 2500 bricks or the equivalent thereof in other pieces,
i The foregoing findings are taken from a written stipulation filed herein.
0
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are permitted to stop work regardless of the length of time it has taken
them to do this. Customarily the molder and his crew complete their quota
within the first 5 or 6 hours of work . If they have been unable to complete
their quota within 7 hours of work they are permitted to stop work at the end
of 7 hours and receive pay for 8 hours, but are not expected to leave before they
have spent 7 hours at work unless the quota or contract has been completed.
The other class of pay is on a straight hourly basis, frequently referred to by
the employees as "company time." When working on company time or "day
work ," as it is also called, the employees are required to put in 7 hours per day
for which they are paid as if they had worked 8 hours, but are subject to no
fixed production quota.
The Union began its organizational activities at the Queens Run plant in
January 1942. The initial group of members organized to the extent of desig-
nating Albert T. Griffin , a molder at the plant , as secretary and treasurer. In
this capacity he collected some $65 in dues and initiation fees.
On February 19, 1942, an election was held at the plant under the direction
of the Board , at which time the employees balloted on the question of whether
they desired to be represented for collective bargaining purposes by the Union.
The outcome of the election was adverse to the Union.
When the Union activities started in January 1942, Ralph Hess, vice president
of the respondent in charge of operations , with offices in Cleveland , Ohio, wrote
to Division Manager George H. Diack, who was in charge of the Queens Run
plant, directing him to instruct the superintendent and foremen to ignore the
organizational activities , to maintain a completely neutral attitude toward them
and to refrain from advising any of the employees with reference to union
membership . Diack delivered a copy of this letter of instruction to Ray Straub,
the plant superintendent and cautioned him to observe the instructions as
issued by Hess. ,
Up to the time of the election on February 19, the subject of the Union was
a matter of general discussion throughout the plant . At the same time, a sub-
stantial number of the employees, and particularly the molders and their,off-
bearers, had begun to develop a habit of leaving the plant before they had
completed their quota of work and particularly , when engaged in the hourly
work, before 3 o 'clock which marks the end of the 7-hour day . Most of the
molders adopted the practice of leaving at 2:30 or sooner . The guilty ones
were warned by Straub . Following such warnings they would stay at their
work until 3 o'clock for a few days , and then gradually fall back into the habit
of leaving early until they again were quitting at sometime between 2 and 2: 30.
Straub was attempting to break up this practice . Two other fire brick plants
in the general neighborhood of the Queens Run plant had abandoned the custom
of paying the employees for 8 hours when they had completed 7 hours of work
and were then on a straight 8-hour schedule . In his conversation with the men
during the period preceding the election and while he was endeavoring to stop
the practice of quitting early, Straub made the remark to several of the men,
in substance , that if the Union came into the plant , he could make them work
8 hours instead of 7. Several of the employees testified to such remarks by
Straub and Straub admitted on the stand that he had in substance said the
same thing in connection with his efforts to accelerate the production activities
of the workers . In each instance when this remark was made, it was in con-
nection with other comments of Straub on the practice of leaving work before
quitting time.
The Queens Run plant is an old institution which was in operation many
years before the respondent ' s incorporation . Many of its present employees
NORTH AMERICAN REFRACTORIES COMPANY 1053
date their first employment back beyond the time when the respondent came
into existence as a corporation. Discipline, so far as the observation of hours
is concerned does not appear to have been strict although each of the employees
was expected to perform his quota of work either in terms of the quota produc-
tion or the required 7 hours . There have been numerous instances in the past
when molders and their respective crews had been disciplined by lay-offs or In
other manner because of quitting the plant before they had completed their
quota and before 7 hours had expired. Many of them have been repri-
manded by Straub for this and other similar conduct and threats of discharge
have been made to men who were consistent offenders. When carrying out
this part of his supervisory duties, Straub, who obviously was not pleased with
th" prospect of the introduction of the Union in the plant, sometimes accompanied
his remarks about the discipline that was being meted out with a reference to
the Union. Thus, in the case of one Tom Packer, a molder, Straub had occasion
to transfer him to some other work and put a comparatively new man into his
place. When one of Packer's off-bearers asked Straub to transfer him to an-
other crew .after this change, Straub, in the ensuing cnoversation, remarked
that Packer was interested in the Union and that he had "a big mouth." Both
before and after the election, Straub and one Gillispie, a supervisory employee
in charge of shipping, occasionally talked with Griffin about the Union, mostly
in a joking manner. After the election Griffin still had the $65 he had collected
and commented to Gillispie and Straub that he did not know what to do
with it. Gillispie jokingly suggested that he use it to make a payment on his
automobile while Straub suggested that he buy himself a suit of clothes.
During the course of these conversations Straub suggested to Griffin that nothing
would come of the Union and that he was foolish to have anything to do with it.
On another occasion, in January 1942, according to Benjamin L. Dauberman
whose testimony was taken by deposition,2 Straub told Dauberman as he was
leaving to take other employment as a shipyard worker, that he would not be
again employed at the respondent's plant as long as Straub was superintendent
because "you ran around here, snuck around here and thought I didn't know it.
You tried to get a union in this place." Straub was not questioned as to this
incident and the testimony of Dauberman concerning it is not controverted nor
explained. It Is accordingly found that the statement was made by Straub
in his official capacity as above set out.
Although there is no showing that any of the employees were influenced by
the statements made by Straub and it was well known to the employees that a
number of the other plants of the respondent had been organized and that satis-
factory relations existed between the Union in such plants and the management,
and, although it is found that it was not the policy of the management either
at the general offices in Cleveland or the local office in Lock Haven as repre-
sented by Diack, to interfere in any manner with the organizational efforts of
the respondent's employees, it is found that the remarks attributed to Straub as
above set out and as they pertained to the hours of work and rates of pay that
could be put into effect if the plant were organized, were such as normally
would have a coercive effect on employees in the freedom with which they ex-
ercised the rights guaranteed to them in Section 7 of the Act.- These remarks
may not and, it is found, did not in fact reflect the attitude of the general manage-
2 Dauberman's deposition was taken in Philadelphia on August 4, 1943, after due notice
to all the parties but at the time the deposition was taken the respondent was not repre-
sented. No objection was offered to the deposition when it was offered and received in
evidence.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment of the respondent toward the Union. But management failed to notify the
employees of its neutrality. It posted no notices nor in any other manner ad-
vised them. Merely giving instructions (to its supervisors was not enough, for
the employees had no way of knowing that Straub was not reflecting the attitude
of management. For this reason the respondent must accept the full responsi-
bility for what Straub did, notwithstanding his instructions. It is found that
through the acts of Straub aforesaid, the respondent has interfered with, re-
strained, and coerced its employees at its Queens Run plant in the exercise
of the rights guaranteed in Section 7 of the Act.
B. The discharge of Albert T. Griffin
Albert T. Griffin was first employed at the Queens Run plant in 1912. In 1923,
when Straub was first made superintendent of the plant, Griffin was discharged
by Straub for insubordination. There appears to be no question but that this
discharge was entirely justified. In 1932, he again applied to Straub for em-
ployment and was put to work as a molder handling the larger pieces of tile.
During his employment from 1932 until his discharge on August 28, 1942, Griffin
did most of his work on the contract basis up until shortly before his dis-
charge when he was moved to a different part of the plant and was assigned a
different type of work which consisted of the molding of somewhat smaller
pieces. This does not appear to have been regarded by anyone as a demotion
although the new work was performed on an hourly basis. For several years
after Griffin's employment in 1932, he performed satisfactorily. There is no
question as to his skill as a molder although his production was usually below
that of others doing, comparable work. Griffin's inability to maintain a con-
sistent volume of production in keeping with the quotas, resulted in frequent
reprimands from Straub after which Griffin's work and production would im-
prove for a few days and then again drop off. Although, the hours of work at
the plant normally were from 7 a. in until 12 noon and from 1 until 3, Griffin
consistently left the shop at about 11: 45 in order to get to a restaurant for his
lunch. The 5-hour period from 7 a. in. until noon was usually sufficient to allow
the molders to complete their quota of 2500 bricks or the equivalent, although
it was not uncommon for them to return at 1 o'clock and perform an additional
one-half to three-quarters of an hour of work to complete the required number.
Rather early in his last period of employment Griffin adopted the practice of not
molding any shapes after the noon period. This resulted in frequent shortages in
his quota for which, he was severely criticized by Straub. In his testimony, Straub
called attention to one instance where the quota was 1000 pieces and an actual
count of the shapes produced by Griffin on that day disclosed only 820. Not-
withstanding, Griffin did not, on that day, return and complete his quota in
the afternoon. On several occasions Straub found it necessary to penalize
Griffin and his crew for failing to produce the required quota and for leaving
the shop before 3 o'clock without having done so. These clashes between Straub
and Griffin were so frequent that Griffin's attitude toward Straub became one of
more or less consistently complaining that Straub was "picking" on him. When
reprimanded by Straub, Griffin frequently called attention to the fact that he had
been so reprimanded and then would frequently remark that Straub "had it in"
for him. This condition was one that existed for several years prior to the
advent of the Union.
The matter of the molders and their crew leaving the plant early and without
completing their full quotas became progressively worse after about the first
of 1942 which coincides with the beginning, of the Union activity. Griffin was
not the only one who indulged in this practice but was the most serious offender.
NORT1 AMERICAN REFRACTORIES COMPANY 1055
Although Griffin denied that he had been reprimanded by Straub or warned
that unless he mended his ways he would be subject to discharge , it is found from
the testimony of Straub that Griffin was so warned during 1942.
In April 1942, the Union sought another election at the plant and filed a petition
for investigation and certification with the Regional Director of the Board at
Pittsburgh . Following the filing of this petition in which the appropriate unit
was described as one that was different from the unit in which the February
election was held , negotiations were carried on between the respondent , the Union
and the Board , in which the respondent indicated a willingness to agree to a
consent election if the unit were the same as in the previous election . No agree-,
went was reached in this regard and no action was taken by the Board on the
petition. In September, several weeks following Griffin's discharge, the petition
was withdrawn by the Union and the charge on which the complaint herein is
based, was filed.
In the latter part of July, Griffin was transferred from his molding of the larger
pieces and placed in a different part of the plant working on smaller bricks and
tile. In this work the molder ordinarily does not have an off-bearer and performs
all the jobs incident to the molding and the finishing of the tile for final firing,
by himself . After about a week at this type of work , in which Griffin did not
make the progress Straub expected of him , he was given an off-bearer to help him.
A week or so of operations with his helper produced no improvement , with the
result that Griffin was taken off the particular type of small tile on which he had
been working and was put on another type of tile or brick at which he performed
satisfactorily for about a week. Another molder who was somewhat more ex-
perienced in the handling of the small tile was placed on the work Griffin had
been doing and carried on the . job alone . After a week, a comparison of cost
of the small tile made by Griffin and by the man who took his place was given
Griffin by Straub , who advised Griffin that his work had been unsatisfactory and
pointed out that it had cost about 21/2 cents more per piece to make the small tile
when Griffin was working on them that it had cost when the other molder had
been doing the job . This also was reflected in the fact that a normal day's
production of this particular tile was approximately 140 pieces, whereas Griffin
was able to produce only about 110 . When Griffin was shown these figures he
became incensed and offered to refund the difference . Straub refused such an
offer and advised Griffin that they could no longer use his services. This discharge
occurred on August 28, 1942.
There is no substantial evidence of any indication of antipathy'to Griffin because
of his union membership or activity and there is no substantial evidence of any
comments or statements by Straub or any other representative of the respondent
which might be construed as opposition to the Union, made subsequent to the
February election.
From the foregoing it is found that while Griffin was a capable employee, he
was and for a long time had been an unsatisfactory one and that on August 28,
1942, he was discharged for cause as a result of an accumulation of unsatisfactory
performances and that his membership in or activity on behalf of the Union had
no relation to or in any manner affected his discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities, of the respondent set forth in Section III above , occurring in
connection with the operations of the respondent 'described , in Section I above,
have a close , intimate and substantial relation to trade, traffic , and commerce
among the several States and with foreign countries and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and that it post
appropriate notices to its employees that it will not engage in the conduct from
which it will be recommended that it cease and desist.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
Conclusions
1. United Brick and Clay Workers of America (A. F. L.) is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
4. By discharging Albert Griffin on August 28, 1942, the respondent has engaged
in no unfair labor practice within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, North American Refractories Company,
and its officers, agents, representatives, and assigns shall:
1. Cease and desist from interfering, with, restraining, or coercing its em-
ployees in the exercise of the rights 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 bar-
gaining or any other mutual aid or protection, as guaranteed in Section 7 of the
Act, in any manner that is of the same general character or similar to the acts
herein found to have been unfair labor practices.
2. Post immediately in conspicuous places throughout its plant at Queens Run
in Lock Haven, Pennsylvania, and maintain for a period of sixty (60) consecutive
days from the date of posting, notices to its employees stating that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 of these recommendations;
3., Notify the Regional Director for the Sixth Region in writing within ten (10)
days from the date of the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that so much of the complaint as pertains to the
discharge of Albert Griffin be dismissed.
It is also further recommended that unless on or before ten (10) days from
the date of the receipt of this intermediate Report the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
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, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
6
NORTII AMERICAN REFRACTORIES COMPANY 1057
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
R. N. DENHAM,
Trial Examiner.
Dated August 28, 1943.