Owens-Illinois Glass Co.

National Labor Relations Board - Board Decisions

Nov 30, 1948

80 N.L.R.B. 892 (N.L.R.B. 1948)

In the Matter of OWENs-ILLINOIS GLASS COMPANY and GRANT
HOCK rr, PAUL A. HANOLD, OTTo SCURLOCK, MERLE C. RECTOR,
CHARLES JONES, ELVIS RAMEY COLSON, RALPH VAN METER, ADAM
CHESSICS , AND THOMAS ANTON, INDIVIDUALS
Case No. 14-C-1092.-Decided November 30, 1948
DECISION
AND
ORDER
On April 30, 1947, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto." Thereafter, the Respondent and the GBBA2 filed
exceptions to the Intermediate Report and supporting briefs.
The Respondent's request for oral argument is hereby denied, as the
record, in our opinion, adequately presents the issues and the positions
of the parties.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this proceeding to a three-man
panel consisting of the undersigned Board Members.*
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the additions and reservations
noted below.
3 Section 8 ( 1) and ( 3) of the Act , considered by the Trial Examiner, has been continued
in the Act by the Labor Management Relations Act, 1947 , as Section 8 (a) (1) and
8 (a) (3), except that the proviso to former Section 8 ( 3) has been modified in the Act,
as amended . However, this modification, which substantially restricts the scope and
protection of the original proviso, is not applicable to this case.
2 Glass Bottle Blowers Association of the United States and Canada, AFL.
*Chairman Herzog and Members Houston and Reynolds.
80 N. L. R. B., No. 141.
892
OWENS-ILLINOIS GLASS COMPANY 893
As is indicated in the Intermediate Report, the allegation that
the Respondent violated Section 8 (3) and (1) of the Act by discharg-
ing the nine complainants for failing to acquire membership in Local
No. 222 of the GBBA, were defended by the Respondent on the ground
that the discharges were legally privileged under the union-security
provisions of a collective contract executed by the Respondent and
the GBBA on September 12, 1945. The primary issue so posed was
litigated at the hearing on several theories.
As appears from the Intermediate Report, the Trial Examiner based
his conclusion that the discharge of the complainants was in violation
of Section 8 (3) and (1) of the Act wholly upon the theory that the
union-security provisions of the contract, properly construed, did not
in fact obligate the Respondent to discharge by the complainants for
their failure to acquire membership in the GBBA, but merely provided
for preferential hiring of new employees. In their exceptions to
the Intermediate Report, the Respondent and the GBBA challenge
the construction of the contract adopted by the Trial Examiner for
the asserted reason, among others, that he erroneously failed to con-
sider and to give controlling effect to certain evidence adduced by
the parties.8 This evidence was adduced to establish that the parties
intended the union-security provisions of the contract to impose upon
new as well as old employees, the obligation of acquiring and retain-
ing membership in the GBBA as a condition of employment, and that
they had actually applied these provisions in accordance with their
mutual understanding.
We do not find it necessary to pass on this issue because we are of
the opinion that, even though the agreement be given the construction
urged upon us by the Respondent and the GBBA, it cannot serve as
a defense to the discharges under the principles enunciated in the
Wallace, Rutland Court 4 and related cases.5 This line of cases holds :
8 The evidence in question generally falls into the following three categories : (1) oral
statements made by the parties as to the meaning and effect of the terms of their con-
tract, such statement being embraced in their mutual report of the negotiations preceding
the execution of the contract , and in the notices posted by each immediately after the
execution of the contract; ( 2) the manner in which similar or substantially similar lan-
guage as that here utilized has been applied in the administration of other contracts
between the GBBA and other employers ; and (3 ) the history of collective bargaining as
practiced in the glass container industry, which discloses that a compulsory union-mem-
bership provision has long been a normal and usual feature of collective contracts in that
industry.
4 Wallace Corp . v. N. L. R. B., 323 U. S. 248 ; Matter of Rutland Court Owners, Inc.,
44 N. L R . B. 587.
5 Having sustained the complaint on other grounds , the Trial Examiner failed to pass
on the applicability of these principles . While no exception was noted to his failure to
sustain the complaint on more than one of the grounds, we do not agree with the Re-
spondent that we are therefore barred from passing on the merits of the issue with which
we are now confronted . The record shows that the Respondent was on notice that the
complaint involved these issues , as well as others, and that it had ample opportunity to,
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) that the execution of a "closed-shop" contract by an employer
with notice that the contracting union intends to use said contract to
deny employment to employees because of their activity on behalf of
a rival union , removes the contract from the protection of the proviso
to Section 8 (3) of the Act, thereby making unlawful the discharge of
any employee pursuant to such a "closed-shop" contract; 6 and (2)
that, notwithstanding the existence of an otherwise valid "closed-
shop" agreement, an employer violates the Act by discharging em-
ployees when he knows or has reason to believe that the contracting
union has requested such discharge because said employees were mem-
bers of, or had been active on behalf of, a rival union at a time
appropriate for the designation of a bargaining representative.'
In our opinion, the record shows, and we find, that the Respondent's
grant of union-security provisions to the GBBA in the collective con-
tract was made with knowledge that the GBBA intended to penalize
former adherents of rival unions by denying them membership in
the GBBA. Such knowledge is established by the record of contract
negotiations 8 on September 12, 1945, especially when interpreted in
the light of the background circumstances disclosing that the achieve-
ment by the GBBA of representative status on September 1, 1945,
was accomplished only after a bitterly waged organizational cam-
paign of several years' duration, in which it competed (on some occa-
sions with the active assistance of the Respondent) for the employees'
adherence with District 50, United Mine Workers of America."
and did , present evidence with respect to these. Indeed, the Respondent 's brief to the
Trial Examiner , which we have considered , treated with the evidence bearing on these
points.
In these circumstances , and as the Respondent has asserted its contract as a legal defense
to the discharges , the parties are not prejudiced by our adjudication of this phase of the
case.
6 Wallace Corp. v. N. L. R. B., 323 U. S. 248 , enforcing 50 N. L. R. B. 138.
7 See Matter of Fajardo Development Co., 76 N. L. R. B. 956; Colonic Fibre Co. v. N. L.
R. B, 113 F. ( 2d) 65 (C. C. A. 2) ; Matter of Rutland Court Owners , Inc., 44 N. L. R. B.
587 ; Matter of Portland Lumber Mills , 64 N. L R B. 159, enforced (C. C. A. 9) 158 F. (2d)
365; N. L. R. B Y. American White Cross Laboratories , 160 F. ( 2d) 75 (C. C. A. 2)
Matter of Iron Fireman Mfg. Co , 69 N L R. B 19 at pp 19 and 27-28
8 The record of the contract negotiations is described by the Respondent and the GBBA
as being "official" and mutually binding upon both to the extent that it embraces agree-
ments not specifically written into the formally executed collective contract. This record
is not a verbatim report of all the exchanges of conversation between the parties, but is
a "highlight " report made by one of the participants in the negotiations-a man repre-
senting the Respondent at the negotiating conferences-whom the parties mutually desig-
nated to take the minutes and to furnish a report upon them.
8 Hereinafter called the UMWA.
The competing campaign of the UMWA was begun after the International Association
of Machinists and certain other labor organzations had abandoned efforts they had
theretofore made to compete with the GBBA. The character of the campaign is indicated
by the fact inter alia that an election won by the GBBA in December 1943 was set aside
by the Board after investigation and bearing upon objections filed to that election by the
UMWA. The Board found , in the course of that investigation , that the Respondent had
actively assisted the GBBA in opposition to the UMWA by various acts described in its
OWENS-ILLINOIS GLASS COMPANY 895
The portion of the record relating to the contract negotiations
which we consider especially revealing is the following colloquy on
September 12, 1945, between Martin, the Respondent's personnel re-
lations expert, and Black and Clutter, representatives of the GBBA :
"Mr. MARTIN. With respect to the 30-day clause, we have been talk-
ing Union Shop Contract. This means members of rival unions will
have to join your union. Can you take these people in, in the 30-day
period provided?
"Mr. BLACK. Under our by-laws the local union can reject the appli-
cation of any member. It's not our policy to discriminate. However,
when a local union feels they have been discriminated against by an
individual they will exercise their right under their constitution and
by-laws to refuse membership.
"Mr. MARTIN. We can understand this in the few cases but what
about the many.
"Mr. BLACK. We feel people have had two years to decide on what
union to join and to promote their union and that any further delay
would be superfluous.
"Mr. BLACK. Reads letter posted by A. C. Budd, Columbus Plant
Manager, written to people of Columbus Plant concerning Union.
I believe a similar letter written by Mr. Flexon and posted will be most
helpful.
"Mr. MARTIN. Wasn't there a different condition at Columbus;
didn't you have some 90% of people sign cards?
"Mr. CLUTTER. Believe yes.
"Mr. MARTIN. We are only trying to avoid that about the first
of October you wouldn't report to us there were several hundred
people who were not in your organization.
"Mr. CLUTTER. I believe there will only be a very few cases. We
believe posting of a notice will aid but we will not let the interest
of a few interfere with the desires of the vast majority as expressed
in the first election. We will make a sincere effort to complete our
solicitations of memberships by October 1.
"Mr. MARTIN. Do you think you can complete this in 30 days?
"Mr. BLACK. You bet we can !" [Italics throughout quoted portion
supplied.]
decision ( see 60 N. L. R. B. 1015 ). The Board permitted the holding of the second
election on July 10 , 1945, only after its agents were satisfied , upon investigation , that the
Respondent had ceased its acts of assistance to the GBBA ( see 62 N. L. R . B. 649). it
certified the GBBA, as a result of that election, on September 1, 1945, after investigating
and dismissing further charges by the UMWA that the Respondent had again interfered
with the employees ' freedom of choice.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We accordingly find, under the holding of the Wallace case, that
the Respondent unlawfully discharged Hockett, Hanold, Rector, Scur-
lock, Chessick, Van Meter, Jones, Colson, and Anton, within the
meaning of Section 8 (3) and (1) of the Act.
Moreover, assuming that the union-security contract was lawfully
executed, we nevertheless believe that it was unlawfully applied against
eight of the complainants," within the meaning of the Rutland Court
principle.
These eight complainants had been members of the UMWA for a
substantial period of time preceding the execution of the contract;
six of the eight had engaged in open and extensive activities on its
behalf." All eight were employees in the maintenance department
of the Respondent, where the UMWA had had its greatest strength.
There is no question in our minds that the GBBA's denial of mem-
bership to them was for the purpose of effecting the intent generally
stated by one representative of the GBBA during the negotiations of
penalizing employees who had "discriminated against" the GBBA
by activities on behalf of rival unions. This is clearly established by
the contents of two letters, one an appeal letter drafted by GBBA
Representative Newton Black 12 for the complainants for submission to
a GBBA International office and the other the reply of the Interna-
tional officer to that appeal.
The "letter of appeal" was framed by Black when some of the com-
plainants sought him out, after receiving the Respondent's advance
notice of termination, in order to seek advice as to the course they
30 Hockett , Hanold, Rector , Colson, Chessick , Scurlock , Van Meter, and Jones.
n Hockett and Rector had figured prominently in the complaint case which resulted in
the setting aside of the first election . As found by the Board in that case ( 60 N. L. R. B.
1015), Hockett had been singled out for discriminatory treatment by the Respondent be-
cause of outstanding organizational activities on behalf of the UMWA and other prede-
cessor rivals to the GBBA. Rector had been one of a committee which protested the dis-
criminatory treatment of Hockett to the Respondent and had filed an affidavit in support
of the charges of discrimination filed with the Board in that case . Hanold, employed as
Hockett's helper in the plant, had participated actively in organizing activities on behalf
of various rivals to the GBBA, including the UMWA, and had testified on behalf of the
Board in the above-described case. He acted together with Hockett as a UMWA observer
in the election resulting in GBBA's certification. Both continued to propagandize in
favor of the UMWA up until the time the Board dismissed the objections to the election
filed by the UMWA.
Rector, Colson, Van Meter and Scurlock had openly solicited memberships for the
UMWA in the plant throughout the period preceding the second election and had actively
"electioneered" on the UMWA's behalf. The activity of Jones and Chessick, both UMWA
members, was of a relatively minor nature.
12 Black was the organizer assigned by the GBBA International to take charge of the
campaign at the Respondent's plant. His assignment preceded the holding of the first
election and continued throughout the entire period of time material here. He was
present at the GBBA Local meeting at which voting on the applications of the com-
plainants and other employees took place.
OWENS-ILLINOIS GLASS COMPANY 897
might pursue to stave off discharge 13 The "letter of appeal," as
drafted by Black for signature by the complainants, stated:
"I have been refused membership by Local 222 of the Association.
The charges against me are working against the best interests of the
Association. I am appealing to you under Article 7, Section 15, of
the Constitution." 14
(Signed) -----------------------------
It was submitted to the International President of the GBBA sub-
stantially in the form above quoted by the eight complainants named
in footnote 10, supra.15
The reply of the International official to each of the eight who
appealed, dated October 17, 1945, explains the basis of the Local's
action against these individuals in precise terms. The reply, addressed
separately to each of the eight, reads as follows in each case:
DEAR SIR : I have your letter dated October 15 advising you have
been refused membership in the Glass Bottle Blowers Association's
Local Union No. 222 at Alton, Illinois.
You state the charges against you are that your were working
against the interests of the Glass Bottle Blowers Association and
for the opposition during the organization campaign at the Owens-
Illinois Glass Company's plant.
I have checked this with Local Union No. 222 and find you were
very actively engaged in securing membership applications for
District 50 which is a branch of the United Mine Workers. You
are not a miner; you are a glass worker. There is only one or-
ganization in the glass container industry; that is the Glass Bottle
Blowers Association. For the life of me I cannot understand
why you should have wanted to join a miner's organization.
Please be advised this International Union had nothing to do
with your suspension. The Local union knowing of your past
attitude refused to give you the obligation or allow you to become
a member. However, you are in order in making application for
membership in our Union and your case will be presented to the
Executive Board of the Glass Bottle Blowers Association when
it next meets.
11 The complainants who sought Black out had first gone to their foreman , Joseph Gentry,
for advice. Gentry told them in effect that the Respondent was powerless in the matter,
and that they should contact the union officers.
14 Article 7, Section 15, of the GBBA Constitution states that where GBBA members
have been expelled by the Local on charges that they have been "working against the best
interests of the Association ," such members may appeal to the International President
who will then investigate the facts . He may "reinstate" the members so appealing.
11 Chessick submitted his appeal letter individually. The other seven of the eight com-
plainants under discussion here affixed their signatures to one copy of the appeal letter.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the prerogative of the President of the Glass Bottle
Blowers Association to reinstate suspended members without the
case going to the Executive Board, however, as I have already
stated, you were not suspended by the President of this Inter-
national Union. Therefore, it becomes a case for Executive
Board action.
Very truly yours,
W. W. CAMPBELL,
Acting President,
Glass Bottle Blowers
Association of the United States and Canada.-
We find, upon the foregoing evidence, that the GBBA refused
membership to Hanold, Hockett, Scurlock, Chessick, Jones, Rector,
Van Meter, and Colson because of their membership in and activities
on behalf of the UMWA during a protected organizational period.
The question whether the Respondent had knowledge of the specific
discriminatory motives of the GBBA in relation to the complainants
presents a more difficult evidentiary problem for determination.
It is true, as pointed out by the Respondent in the briefs filed before
the Trial Examiner, that the record is barren of any direct evidence
that the Respondent's agents were expressly notified, in so many words,
that the reason for the GBBA's refusal to accept these eight com-
plainants into membership was what we have found it to be. Direct
proof of knowledge, however, is seldom present in any case such as this,
and is not usually to be expected. Therefore, absent evidence of
express notification, the issue of knowledge must be resolved by
attributing to the particular employer charged with unfair labor
practices the knowledge a reasonable man would have acquired from
all the circumstances under which a contracting union had taken the
action leading to an invocation of the discharge clauses of a closed-
shop contract 17
As is noted in the Intermediate Report, the GBBA requested the
Respondent on October 5 to enforce the discharge clause of the con-
tract in the case of the complainants, stating "refusal of membership"
by Local 222 to be the basis of the request. It appears from the record
1° As stated above, the record indicates that, In fact , the activity of six of these eight
complainants in the campaign of opposition to the GBBA was of an extensive nature ;
but that the activity of the two others was , in fact, relatively minor. The GBBA was
therefore apparently mistaken as to the nature of the pro -UMWA activity of these two.
Its erroneous concept of their roles in the opposition campaign does not, of course, lessen
the discrimination practiced against them . Compare the circumstances surrounding the
contracting union's discriminatory action against Kirchem in the Iron Fireman Mfg. Co.
case, 69 N. L R. B. 19, at p. 28.
17 Compare the factual basis of the findings in Matter of Iron Fireman Mfg. Co., 69,
N. L. R. B. 19, at pp. 28-29 ; Matter of Rheem Mfg . Co., 70 N. L. It. B. 57, at p. 66.
OWENS-ILLINOIS GLASS COMPANY 899
that at about the same time other locals of the GBBA likewise invoked
the contract in the case of numerous other employees, stating the reason
to be that the employees were "not in good standing" with the local.18
Upon receipt of the requests, Floyd Flexon, the Respondent's plant
manager , communicated with GBBA Representative Newton Black,
pointing out the discrepancy in the wording of the requests in the case
of the complainants and inquiring as to the procedure the Respondent
should follow. Black was very curt in speech on this occasion. How-
ever, he informed Flexon that, in the case of the complainants, the
GBBA members "had exercised their right" of rejection, that the re-
jection had been pursuant to a secret ballot, and that the contract
called for discharge. According to the testimony of both Black and
Flexon, Black 's manner of speaking precluded any further inquiry.
Flexon thereafter reported this conversation by written memo-
randum to Martin , the Respondent 's home office personnel relations
expert, stating therein that he "supposed" the same termination pro-
cedure should be followed as in the cases where discharge requests
attributed to employees' failure to be "in good standing." Flexon re-
ceived no contrary instructions. Accordingly, on October 11, he noti-
fied the nine complainants that their services would be terminated on
October 19, absent notification by the union that they had been
"reinstated."
Shortly thereafter, some of the complainants informed their fore-
man, Joseph Gentry,19 that GBBA Representative Black had told
18 Request for discharge of all but the nine complainants was subsequently withdrawn
by the GBBA . It appeared from an investigation of the pay roll by the Respondent that
in some cases the individuals whose discharge was requested were either no longer on
the pay roll , absent on leave, or in returning -veteran status.
11 Gentry was the supervising foreman of the department in which the complainants were
employed . He had full authority to hire and discharge the employees under his super-
vision , and the particular discharges here considered were accomplished , at the direction
of higher officials, so as to make it appear to the employees that this termination represented
an exercise by Gentry of his power of discharge . Thus the termination notices, drafted
by Plant Manager Flexon, were transmitted by Flexon to the division head with directions
that Gentry sign and deliver them to the complainants. Gentry carried out these instruc-
tions. There can be no question , therefore , that, for the purpose of determining the
specific issues here discussed , Gentry is an agent of the Respondent , and we so find.
We note, however, that Plant Manager Flexon testified at the hearing that he had no
knowledge before the discharges of the discriminatory reason for the rejection of the
complainants ' applications by the GBBA. Even if we were to credit this testimony, it
would have no effect on the findings of knowledge herein made . For, as indicated hereto-
fore, the Respondent is chargeable with the knowledge acquired by Gentry and by any
other officials clothed with authority to deal with the problems of the employees involved.
Cf. Matter of Spicer Mfg. Co., 70 N. L. R. B. 41, 54.
But despite Flexon 's denial, we believe that Gentry did, in fact, communicate to Flexon
the information he gained from the complainants as to the nature of the GBBA's action
against them . The record shows that these eight employees, all admittedly competent,
had served the Respondent for long periods of time ranging from 4 to 20 years , and that
Gentry told many of them they would be difficult to replace. According to Flexon 's admis-
sion at the hearing, Flexon visited in the department which Gentry supervised almost
every day and was in frequent contact with all his foremen about plant problems gener-
817319-49-vol. 80-58
goo DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that their applications had been rejected because they had been
"working against the best interests" of the GBBA 20
It also appears from the record that the Respondent received this
information in a background of knowledge that: (1) GBBA repre-
sentatives at the negotiating conferences had anticipated, and had re-
served, the use by the GBBA membership of the power flowing out
of closed-shop provisions as a means of penalizing employees who had
theretofore supported rival unions (see supra p. 895) ; (2) most of the
employees here involved had very prominently identified themselves
with the UMWA's campaign of opposition to the GBBA, and all had
been members of the UMWA; 21 (3) the GBBA's power of rejecting
applicants was used only in the maintenance department where the
UMWA had had its greatest strength; and (4) only about 3 weeks
had elapsed between the date of contract execution and the date the
GBBA invoked the discharge clauses of the contract.
In our opinion, a reasonable man, hearing under these circumstances
a statement that a dominant union's rejection of certain employees
was the result of charges that such employees were "working against
the best interests" of that union, would conclude that this statement,
with its connotation familiar to any one dealing with labor relations,
meant that the rejection was based upon the rival union activity of the
complainants during the organizational campaign.-
ally. Flexon was seen by one of the complainants conversing with Gentry in the depart-
ment on the very day that one complainant , as is hereafter described , exhibited the "letter
of appeal" to Gentry , and at a time following the exhibition of the letter. It is a fair
inference , therefore , that Gentry , who was acting upon Flexon ' s instructions as to these
terminations , must have told Flexon of all new developments surrounding the termina-
tions , at the very least for the purpose of seeking advice.
20 As noted heretofore , this statement of the GBBA 's charges appears in the letter of
appeal drafted by GBBA Representative Black for submission by the complainants to the
GBBA International President . Some of the complainants told Gentry , before the dis-
charges were effected, that Black had drafted this appeal for the complainants and one
exhibited to him a copy of the letter containing the appeal . Several of the complainants
also told Gentry which of the complainants had submitted this letter of appeal to higher
officials.
The testimony of the complainants as to the information they transmitted to Gentry
stands contradicted in the record . Gentry did not testify at the hearing.
23 The activities engaged in by many of the complainants on behalf of the UMWA were
such as to call the attention of the Respondent ' s agents to their identification with the
UMWA and their opposition to the GBBA. Flexon admitted being aware of the activities
of Hockett and Hanold ; and Gentry , who did not testify here , had, in the past, engaged
in extensive questioning of the employees as to their union membership and activity and
must have known, therefore , which of the employees were proponents and members of
the UMWA.
22 None of these circumstances are relevant in Anton's case. Anton did not receive
employment until after the UMWA organizational campaign had ceased . He was, more-
over, known by the Respondent to be a member of a GBBA local union representing the
employees of his former employer at all times here material , and he was not one of the
employees mentioned in the "letter of appeal" by Black. Our findings as to Anton there-
fore rest solely on the ground that the Respondent 's execution of the union -security
provisions of the contract with knowledge that the GBBA intended to discriminate in the
grant of membership rights renders the union -security provisions of the contract per 86
invalid as a defense to any discharge effected under color of such provisions.
OWENS-ILLINOIS GLASS COMPANY 901
We find that the Respondent had knowledge on and before October
19, 1945, the effective date of the discharge, that the GBBA had speci-
fically requested and was requesting the discharge of Hockett, Hanold,
Rector, Colson, Chessick, Scurlock, Van Meter, and Jones, because of
their membership in and activities on behalf of the UMWA at a time
when the UMWA was competing with the GBBA for representative
status, and that the discharge of these complainants was therefore
violative of the Act.
THE REMEDY
Having found that the Respondent, by acts of discrimination, un-
lawfully discouraged its employees from engaging in activity on
behalf of a labor organization, such activity being directed to the
designation of a bargaining representative at an appropriate time,
we shall order the Respondent to cease and desist from engaging in
such unfair labor practices or in any like or related practices. Noth-
ing in our order, hereinafter set forth, shall, however, be taken to
proscribe conduct of the Respondent protected by the proviso to Sec-
tion 8 (3) of the Act.
Upon the basis of the entire record in the case, and pursuant to
reinstatement and back pay, except as to the back pay for Anton.
There was an unexplained delay of approximately 14 months from the
date of Anton's discharge to the date (January 17, 1947) he was first
named as one of the complainants in this proceeding. Therefore, in
accordance with our practice in such cases,23 we shall order back pay
in his case only from January 17, 1947, to the date of Respondent's
offer of reinstatement.
ORDER
Upon the basis of the entire record in the case, and pursuant to
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent
Owens-Illinois Glass Company, Alton, Illinois, and its officers, agents,
successors and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in or activity on behalf of any labor
organization of its employees, directed towards designation of a bar-
gaining representative at an appropriate time, by in any manner
discriminating in regard to the hire and tenure of employment, or
the terms or conditions of employment, of its employees;
za See Matter of Barton Brass Co., 78 N. L. R. B . 431, and cases there cited. We find
no merit to the Respondent ' s suggestion that back pay be tolled as to the other com-
plainants during the 14-month period between the date the charges were filed and the
date the complaint was issued . See N. L. R. B. v. Electric Vacuum Cleaner Co., 315 U. a
685, 697-698.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer Thomas Anton, Adam Chessick, Elvis Ramey Colson,
Paul Hanold, Grant Hockett, Charles Jones, Merle Rector, Otto Scur-
lock, and Ralph Van Meter, immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges;
(b) Make whole the employees named below for any loss of pay
they may have suffered by reason of the Respondent's discrimination
against them by payment to each of them of the following sums of
money :
(1) To Adam Chessick, Paul Hanold, Grant Hockett, Charles
Jones, Merle Rector, Elvis Ramey Colson, Otto Scurlock, and Ralph
Van Meter, a sum of money equal to the amount which he normally
would have earned as wages during the period from the date of his
discharge to the date of the Respondent's offer of reinstatement, less
his net earnings during said period;
(2) To Thomas Anton, a sum of money equal to the amount which
he normally would have earned as wages during the period from
January 17, 1947, the date the charge was filed on his behalf, to the
date of the Respondent's offer of reinstatement, less his net earnings
during said period;
(c) Post in conspicuous places in the plant of the Respondent at
Alton, Illinois, copies of the notice attached hereto, marked "Appen-
dix A." 24 Copies of said notice, to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed
by the Respondent's representative, be posted by the Respondent
immediately upon receipt thereof and be maintained by it for at least
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted and
including particularly the bulletin boards in the maintenance depart-
ment. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(d) Notify the Regional Director for the Fourteenth Region in
writing, within (10) days from the date of this order, what steps the
Respondent has taken to comply herewith.
24 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "A DECISION AND ORDER," the words "DECREE
OF THE UNITED STATES COURT OF APPEALS ENFORCING."
OWENS-ILLINOIS GLASS COMPANY 903
MEMBER REYNOLDS, dissenting :
I dissent from the findings of my colleagues attributing to the Re-
spondent knowledge at the time the closed-shop contract was executed,
that the GBBA intended to deny membership to former members or
proponents of rival organizations, and knowledge at the time the
discharges took place that the GBBA had denied membership to
eight of the complainants because of their rival union membership
or activity. In my opinion, the Board did not sustain its burden of
establishing the Respondent's knowledge of the GBBA's discrimina-
tory motivation in either case. Accordingly, no adequate factual
basis exists for application of the principles enunciated in the Wallace
and Rutland Court cases.25
I would dismiss the complaint.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in or activity on behalf
of any labor organization of our employees, directed towards
designation of a bargaining representative at an appropriate time,
by in any manner discriminating in regard to their hire and
tenure of employment, or terms or conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed to them by the National Labor Relations Act.
WE WILL OFFER to the employees named below immediate and
full reinstatement to their former or substantially equivalent po-
sitions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination.
Thomas Anton Charles Jones
Adam Chessick Merle Rector
Elvin Colson Otto Scurlock
Paul Hanold Ralph Van Meter
Grant Hockett
OWENS-ILLINOIS GLASS COMPANY,
Employer.
Dated ------------------------ By ----------------------------
(Representative ) ( Title)
21 Wallace Corp. v. N. L. R. B., 323 U. S. 248; Matter o f Rutland Court Owners, Inc.,
44 N. L R. B. 587.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NoTE : Any of the above-named employees presently serving in the
Armed Forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the Armed Forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Charles K. Hackler, for the Board.
Mr. James M. Guiher, of Clarksburg, W. Va; Mr. Guy Farmer, of Steptoe &
Johnson, Washington, D. C. ; Mr. George A. McNulty, of St. Louis, Mo., Mr. A. J.
Martin, of Toledo, Ohio ; and Mr. Floyd Flexon, of Alton, Ill., for the respondent.
Mr. Albert K. Plone, of Camden, N. J., and Mr. Newton TV. Black, of Phila-
delphia, Pa., for GBBA.
STATEMENT OF THE CASE
Upon a charge filed October 22, 1945, by Grant Hockett, an individual, the
National Labor Relations Board, herein called the Board, by its Regional Di-
rector for the Fourteenth Region (St. Louis, Missouri), issued a complaint dated
December 3, 1946, against Owens-Illinois Glass Company, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1)
and (3 ) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act.
With respect to the asserted unfair labor practices the complaint alleged, in
substance, that the respondent on or about October 19, 1945, discharged Adam
Chessick, Elvis Colson, Paul Hanold, Grant Hockett, Charles Jones, Merle
Rector, Otto Scurlock, and Ralph Van Meter, and thereafter failed and refused
to reinstate any of them, because of their activities on behalf of District 50,
United Mine Workers of America, herein called UMWA, and because of the
failure to accept them into membership in Glass Bottle Blowers Association of
the United States and Canada, herein called GBBA, thereby discriminating with
regard to their hire and tenure of employment, and thereby interfering with,
restraining, and coercing the respondent's employees in the exercise of the rights
guaranteed them in Section 7 of the Act. On January 17, 1947, the complaint
was amended to include the name of Thomas Anton as an employee alleged to
have been discriminatorily dischargd.
The respondent filed an answer dated December 16, 1946, in which, although
admitting certain of the allegations of the complaint with respect to the nature
of its business, it denied that it had engaged in any unfair labor practices. As
an affirmative defense in its behalf the respondent's answer asserted that it
discharged the above-named employees pursuant to the terms of a contract
with GBBA. On December 12, GBBA filed a motion to intervene in the pro-
ceedings.
Pursuant to notice, a hearing was held from February 3 to 7, 1947, at Alton,
Illinois, before Horace A. Ruckel, the undersigned Trial Examiner, duly ap-
pointed by the Chief Trial Examiner. The Board, the respondent, and GBBA
were represented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses , and to introduce evidence
bearing upon the issues , was afforded all parties.
OWENS-ILLINOIS GLASS COMPANY 905
At the beginning of the hearing the Trial Examiner granted a motion by
counsel for the respondent that its answer, previously filed, be permitted to stand
to the complaint as amended. He also granted GBBA's motion to intervene.
At the conclusion of the hearing the Trial Examiner granted a motion by counsel
for the Board to amend the complaint to conform to the proof in formal matters,
and reserved ruling upon a motion by counsel for the respondent, in which he was
joined by counsel for GBBA, to dismiss the complaint. This motion is disposed
of by the recommendations hereinafter made. The parties were advised that
they might argue orally before the Trial Examiner, and might file briefs and/or
proposed findings of fact and conclusions of law with him by February 28, 1947.
Subsequently, this time was extended by the Chief Trial Examiner to March
29. No oral argument was had. On March 29 the Board, the respondent, and
GBBA filed briefs.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 1
The respondent is an Ohio corporation having its principal office and place of
business at Toledo, Ohio. Plant No. 7, located at Alton, Illinois, is the only
plant involved in these proceedings. In the operations of its Alton plant the
respondent causes and has continuously caused large quantities of raw ma-
terials to be purchased and shipped in interstate commerce from and through
States of the United States other than the State of Illinois to its plant, and causes
and has continuously caused large quantities of finished products from its Alton
plant to be shipped and transported in interstate commerce to and through States
of the United States other than the State of Illinois. The respondent admits that
it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, and Glass Bottle Blowers As-
sociation of the United States and Canada, are labor organizations admitting to
membership employees of the respondent. Both organizations are affiliated with
the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. The discharges
As the result of a second election 2 held on July 10, 1945, the Board, on August
31, 1945, issued a Second Supplemental Decision and Certification of Represen-
tatives 8 certifying GBBA as the bargaining representative of the respondent's
1 The findings as to the nature of the respondent 's business are based upon the allega-
tions of the complaint which the respondent 's answer admits.
A former election , held on December 23, 1943, was set aside as the result of objections
filed by UMWA.
I Cases Nos. 14-R-783 and 14-R-806, 53 N. L. R. B. 1104.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in an appropriat unit` UMWA was the unsuccessful party to the
election.
On September 12, 1945, at a conference between representatives of the re-
spondent and GBBA, the two parties entered into a contract, effective as of
September 1. The contract contains alleged closed or union shop provisions
which the respondent and GBBA rely upon to justify the discharge of the em-
ployees named in the complaint. These provisions are as follows :
Article II
Recognition
Section 2. It is understood that when a new employee is hired for the
departments represented by this agreement, preference shall be given to
members of the Glass Bottle Blowers Association, provided they are com-
petent and satisfactory.
Section S. If such members of the Union are not available, labor can be
drawn from any source with the understanding that if, at the end of thirty
(30) days, they are found competent by the management, they must be
taken into the Union and pay dues. Application for membership in the
Glass Bottle Blowers Association must be made upon receiving employment.
Article XVI
Union Dues and Reinstatements
Section I. The Local Union when notifying the plant management that an
employee is not in good standing shall do so in writing, stating that the
name or names appearing in the notice are not in good standing. The
notice to be dated and signed by the proper, Local Union officials. The
management shall be given two (2) weeks from date of receipt of notice
before action is taken on the employees by the Union. Unless reinstated
within this time, the employee shall be laid off.
On September 13, the respondent posted in the plant a notice advising its
employees of the execution of the contract, which it described it as a "union
shop" contract. The notice was as follows :
NOTICE
The Glass Bottle Blowers' Association having been duly certified by the
National Labor Relations Board as the bargaining agency for the hourly
employees of the Alton Plant, the Owens-Illinois Glass Company on Wednes-
day, September 12th, 1945, signed a union shop contract covering all hourly
employees in the Alton Plant with the exception of office workers and those
workers already covered by contracts with other unions. Said contract
is effective immediately.
4 The unit found by the Board is constituted as follows : All hourly paid employees at
the No. 7 plant of Owens-Illinois Glass Company at Alton, Illinois, including factory clerks
but excluding all of ee clerks, automatic operators, apprentices, and learners presently or
formerly under contract, mould makers and tank foremen for whom American Flint Glass
Workers Union is bargaining, the plant superintendent, department heads, shift foremen,
assistant shift foremen, crew leaders (including inspectors in the packing department
and planning foremen in the warehouse and shipping department), and all other super-
visory employees with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such action.
OWENS-ILLINOIS GLASS COMPANY 907
On the same day GBBA posted notices notifying the employees that appli-
cations for membership in Local 222 6 had to be made by September 30. No copy
of the contract itself was posted, and none was available to employees other
than one at the GBBA office where it could be examined only by those who had
already become members of the organization. Hence the employees were
dependent upon the statement in the notice that a "union shop" had been agreed
upon, without any further description of its applicability to themselves.
It is not in dispute that all the employees named in the complaint filled out
membership application cards before September 30,6 and were in the employ of
the respondent prior to September 1.
During the first few days of October, GBBA posted a further notice on the
bulletin boards stating that applicants for membership in Local 222 should pay
their dues at the GBBA hall on October 9 or 10. Accordingly, the employees
whose names appear in the complaint appeared at GBBA hall on one or the
other of the appointed days with the intention of paying their initiation fee.
Each one, as he stood in line with other employees, was called aside by Newton
Black, a member of the executive board of GBBA who had assumed charge of
the GBBA organizational drive just prior to the July election, or by Tickner,
president of Local 222, and told that he need not wait, that there was no mem-
bership card for him, and that the respondent would notify him later of his
status.? This notification was forthcoming on October 11 when the respondent
sent all nine employees named in the complaint identical letters stating that it
had been informed by GBBA on October 5 that the employees in question were
not in good standing with that organization, and that under the respondent's
contract with GBBA it was obligated to lay them off unless they established
themselves in good standing by October 19 8
GBBA's notice to the respondent on October 5, upon which the respondent
based the discharges, was issued pursuant to action taken at a meeting of Local
222 on October 4. At this meeting all those employees who had signed appli-
cation cards since September 1, 1945, the effective date of the contract, were
voted upon by those who had become members of the local before that date.
6 The plant employees were divided into 9 locals by GBBA. Local 222 had jurisdiction
over the maintenance department where all the employees named in the complaint worked.
6 Thomas Anton, however , belonged to GBBA at the respondent 's Bridgeton , New Jersey,
plant He was transferred to the Alton plant shortly after the second election , and subse-
quently received a transfer card from the Bridgeton local. He furnished Hockett with a
copy of the GBBA contract at the Bridgeton plant , and told various employees that the
Bridgeton local was a company union This came to the attention of GBBA officials, and
Newton Black , on behalf of Local 222, refused to honor Anton 's transfer card The latter
thereupon made out an application for membership in Local 222 . He was refused it along
with the others , as hereinafter related
7 Black's refusal of a membership card to Grant Hockett was testified to without con-
tradiction as follows , and is fairly typical of the testimony of other witnesses
Q. And they approached you after you were standing in line?
A. They did.
Q. What was the substance of the conversation?
A. Mr. Black told me there was no use for me to wait , he had no card for me. He
said . . . I said "Newt , what are the charges?" He said "We are not going to charge
you with anything , but will not let you in, even ." I said "I believe you have me
wrong. What is the charge against me ." He said "The company will notify you
later".
It will be observed that this date, although 14 days from the date of the receipt of
notice from GBBA that the employees in question were not in good standing , was only
8 days after the notice to the employees themselves , and was less than the 30 days period
provided for in the contract for acceptance of membership in the GBBA.
`908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There were 60 of the latter category present at the meeting. The vote was by
secret ballot. As a result of the balloting, 40 of those who had signed appli-
cation cards were voted into full membership in GBBA, 9 were voted in but
placed on a year's probation, and the 9 named in the complaint were excluded
from membership.'
On October 19 the nine employees were told by Gentry, foreman in the mainte-
nance department, that they were laid off. The termination slip of each bears
the notation : "advised by Union he was not in good standing."
Conclusions
It is obvious that the discharge of the nine employees named in the complaint
was in violation of the Act unless such action was protected under the terms of
the proviso of Section 8 (3), since the respondent admittedly terminated them
because of their alleged failure to become members in good standing of GBBA.
The Board contends : (1) that these employees were under no contractual obli-
gation to become or remain members of GBBA as a condition of continued
employment, and, (2) assuming that such a contractual obligation existed,
nevertheless the respondent, under the decisions in the Rutland Court 10 and
Wallace Corporation 11 cases acted illegally in discharging them because it
knew, or should have known, that GBBA's request for their discharge was made
because of their activities on behalf of a rival labor organization, within a
protected period.
The respondent and GBBA contend, on the contrary, that the respondent was
obliged to discharge the employees under a fair interpretation of the contract.
and that, even assuming that the GBBA was motivated by illegal and improper
considerations, the respondent had no knowledge of them and acted in good
faith in effecting the discharges.
As has been found above, Article II, Section 2, of the contract provides : "When
a new employee is hired for the departments represented by this agreement,
preference shall be given to members of the Glass Bottle Blowers Association,
provided they are competent and satisfactory." Section 3 of the same Article
provides : "If such members of the Union are not available, labor can be drawn
from any source with the understanding that if, at the end of 30 days, they
are found competent by the management, they must be taken into the Union and
pay dues. Application for membership in the Glass Bottle Blowers Association
must be made upon receiving employment." (Emphasis supplied.)
Article 16 of the agreement provides the procedure for the enforcement of the
preferential hiring provisions set forth in Article II.
The undersigned perceives no ambiguity in the language of these sections.
The underscored portions clearly indicate that they are applicable only to new
employees, and create a preferential hiring system in favor of members of
GBBA. In effect, the respondent agrees that it will endeavor to fill new jobs
with members of GBBA, but that if none are available it is free to hire persons
of its own selection. The respondent requires a 30-day period to learn whether
such new employees are acceptable for permanent employment, but it is obligated
to require said individuals to make application for membership in GBBA when
they are first hired. If they refuse to do so they are not hired. But once they
9 The tally of votes is in evidence, as are the minutes of the meeting.
10 Matter of Rutland Court Owners , Inc., 44 N. L. R. B. 587 , 46 N. L . R. B. 1040.
' 11 Wallace Corporation v. N. L. R . B., 323 U. S. 248.
OWENS-ILLINOIS GLASS COMPANY 909
have applied for membership, and have shown themselves to be competent em-
ployees during the 30 days period, then it has become GBBA's duty to accept
them into that organization, and the duty of such employees to pay dues. This
would seem to be the only reasonable interpretation of these sections.
The undersigned finds no merit in the contention of the respondent and GBBA
that the language of the contract should be expanded and interpreted so as to
require those persons already employed on September 1 to make application for
membership in GBBA. The fact that the representatives of the respondent and
GBBA who negotiated the contract assumed or intended that those presently
employed were obligated to join the union, is immaterial under the decision of
the Board in the Iron Fireman 12 case. In that case the alleged closed, or union,
shop provision provided that "all new employees who are employed by the Em-
ployer shall be given a trial period of 30 days or less. If found satisfactory at
the expiration of 30 days, they shall make application to join the Union." The
Board construed this language to mean that the employee must make applica-
tion to join the Union, but that the making of such application fulfilled his obli-
gation and it was immaterial whether or not his application was favorably acted
upon or whether the applicant was accepted into membership of the Union.
For this reason, and for the further reason that the clause did not require that
the employee must remain a member of the Union during the life of the con-
tract or for any length of time, the Board found that the agreement failed to
meet the requirements of a closed shop contract. The Board, in arriving at its
decision, stated : "In view of the stringent requirements of closed shop provi-
sions it is not too much to require that the parties thereto express the essentials
of such provisions in unmistakable language."
The reason for the strict construction of the closed shop provision of a contract
is not difficult of comprehension. The provision is an exception to, and in dero-
gation of, the right otherwise guaranteed by the Act to join or not to join a
labor organization, as an employee sees fit. In dealing with management in the
negotiation of a contract a union speaks for all those for whom it bargains, but
the union does not have authority to waive the personal rights of employees in any
manner it sees fit. Such a waiver, the Board has in effect held, should be
specific in its terms rather than dependent upon expressions of intent outside
the knowledge of the employees affected. If rights otherwise protected by the
Act are to be bargained away, the provision of the instrument which does so
should accurately and adequately describe just what, as well as whose, rights
have been bargained away, and to what extent.
The specific language of the agreement between the GBBA and the respondent
was not publicized. True enough the employees as a whole were advised by
posted notice that a "union shop" had been agreed upon and they were obligated
to join GBBA. But no copy of the contract was posted. It was only after the
employees had joined the union that it became possible to inspect the contract
to determine for themselves whether such joining was in fact required. Such
an inspection would have revealed what has been observed above, that the con-
tract by its terms, and apart from any interpretation put on it by its signers
not apparent on its face, did not require any person in the employ of the respond-
ent prior to September 1, 1945, including the nine employees named in the
complaint, to join GBBA in order to continue as employees.
12 Matter of Iron Firgman Manufacturinq Company, 69 N. L. R. B . 19. See also : Matter
of Pittsburgh Plate Glass Company, 67 N. L . R. B. 97 ; Matter of G. W. Hume Co., 71
N. L. R. B . 518 ; Matter of Capolino Packing Corporation, 71 N. L. R. B. 1003.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming, however, that the contentions of the respondent and GBBA are
correct, and that the union security provisions of the contract should he con-
strued so as to require those employed prior to September 1, 1945, to join GBBA,
the contract would still fail as a defense to the discharge of the employees named
in the complaint. For these employees applied for membership only to be
refused it, in spite of the explicit requirement of Article II, Section 3, that
employees affected by the contract "must be taken into the Union and pay dues."
It is not contended that this provision of the contract is ambiguous, or that it
fails to express the understanding of the parties. Nor is it contended that the
nine employees in question were not competent. The reasons for the require-
ment that GBBA admit to membership all those who have been found competent
employees and have applied for membership, would seem fairly obvious In
the first place, such a requirement, quite common in closed or union shop con-
tracts, minimizes the chances of an employer's running afoul of the Act. More-
over, as Board's counsel points out in his brief," if a union could refuse to accept
new employees which the employer had hired, and thereby cause the termination
of their employment under closed or union shop provisions of a contract, a union
could effectively prevent plant expansion and employee replacement.
It follows that if the respondent and GBBA were at liberty to regard all the
old employees as new ones, and apply the union security provisions of the con-
tract to them, the union was, by the same token, required to accept into mem-
bership all those who had been found competent by the respondent, including
the dischargees here.
The undersigned concludes and finds that the respondent was not obligated
by reason of its contract with GBBA to discharge the employees named in the
complaint, and that in so doing it interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
The above conclusion is premised upon the finding that the alleged closed, or
union, shop provisions of the contract of September 1, 1945, were not applicable to
the employees named in the complaint, and hence cannot constitute a defense
to their discriminatory discharge. In view of this finding the undersigned does
not deem it necessary to discuss the application of the Rutland Court or Wallace
case doctrines to the situation here, nor to consider a further contention of
Board's counsel that the discharges are not protected under the proviso of the
Act because the contract with GBBA did not cover employees in an appropriate
unit 14
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 tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
13 Neither the brief of the respondent nor of GBBA discusses the provision of the con-
tract that GBBA must admit competent employees to membership upon application.
14 The contract included crew leaders within the unit bargained or, in spite of the fact
that the unit as found by the Board excluded them. The Board cites Graham Ship Repair
Co., 63 N. L. R. B 842, on this point.
OWENS-ILLINOIS GLASS COMPANY 911
take certain affirmative action which the undersigned advises will effectuate the
policies of the Act.
The undersigned has found that the respondent has discriminated against
Thomas Anton, Adam Chessick, Elvin Colson, Paul Hanold, Grant Hockett,
Charles Jones, Merle Rector, Otto Scurlock, and Ralph Van Meter, by discharg-
ing them. He will therefore recommend that the respondent offer the above-
named employees immediate and full reinstatement to their former or substan-
tially equivalent positions," without prejudice to their seniority and other rights
and privileges and to make them whole for any loss of pay they may have suf-
fered by reason of the respondent's discrimination against them by payment to
each of them of a sum of money equal to that which he normally would have
earned as wages from the date of his discharge to the date of the respondent's
offer of reinstatement less his net earnings during such period."
Because of the basis of the violation herein found, and in the absence of any
evidence that danger of other unfair labor practices is to be anticipated from
the respondent's conduct in the past, the undersigned will not recommend that
the respondent cease and desist from in any manner interfering with, restraining,
or coercing its employees.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. District 50, United Mine Workers of America, and Glass Bottle Blowers
Association of the United States and Canada, both affiliated with American
Federation of Labor, are labor organizations within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Thomas
Anton, Adam Chessick, Elvin Colson, Paul Hanold, Grant Hockett, Charles Jones,
Merle Rector, Otto Scurlock, and Ralph Van Meter, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3. By said acts, respondent has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Owens-Illinois Glass Company, Alton, Illinois, its
officers, agents, successors, and assign shall:
1. Cease and desist from :
(a) Discouraging membership in District 50, United Mine Workers of America,
American Federation of Labor, or any other labor organization of its employees,
15 The term "former or substantially equivalent positions" is intended to mead "former
positions wherever possible, but if such positions are no longer in existence, then to sub-
stantially equivalent positions." See Matter of The Chase National Bank of the City of
New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827.
11 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-498.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by in any manner discriminating in regard to their hire and tenure of employment
or terms or conditions of employment ;
(b) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Thomas Anton, Adam Chessick, Elvin Colson, Paul Hanold,
Grant Hockett, Charles Jones, Merle Rector, Otto Scurlock, and Ralph Van
Meter, immediate and full reinstatement to the positions which they respectively
occupied on October 19, 1945, prior to the respondent's discrimination against
them, or to substantially equivalent positions without prejudice to their seniority
or other rights and privileges ; and
(b) Make whole Thomas Anton, Adam Chessick, Elvin Colson, Paul Hanold,
Grant Hockett, Charles Jones, Merle Rector, Otto Scurlock, and Ralph Van
Meter, for any loss of pay they may have suffered by reason of the respondent's
discrimination against them by payment to each of them a sum of money equal to
the amount he normally would have earned as wages during the period from the
date of his discharge to the date of offer of reinstatement, less his net earnings
during the said period ;
(c) Post in conspicuous places in the plant of the respondent at Alton, Illinois,
copies of the notice attached hereto and marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof and be maintained by it for at least
sixty (60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted and including par-
ticularly the bulletin boards in the maintenance department. Reasonable steps
shall be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(d) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from date of the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is recommended that unless on or before ten (10) days from the receipt of
the Intermediate Report the respondent notifies the 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.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel
for the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203 38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C.,
an original and four copies of a statement in writing setting forth such excep-
tions 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; and any party
or counsel for the Board may, within the same period, file an original and four
copies of a brief in support of the Intermediate Report. Immediately upon the
filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other
OWENS-ILLINOIS GLASS COMPANY 913
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as re-
quired by Section 203.65. As further provided in said Section 203.39, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
HORACE A. RUCKEL,
Trial Examiner.
Dated April 30, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in DISTRICT 50, UNITED MINE WORK-
ERS OF AMERICA, or any other labor organization of our employees, by in
any manner discriminating in regard to their hire and tenure of employment,
or terms or conditions of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed to them by
the National Labor Relations Act.
WE WILL OFFER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
a4d make them whole for any loss of pay suffered as a result of the dis-
crimination.
Thomas Anton Charles Jones
Adam Chessick Merle Rector
Elvin Colson Otto Scurlock
Paul Hanold Ralph Van Meter
Grant Hockett
OwENS-ILLINOIS GLASS COMPANY,
Employer.
Dated-------------------------- By---------------------------------------
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.