Paterson Fire Brick Co.

National Labor Relations Board - Board Decisions

Jun 30, 1950

90 N.L.R.B. 660 (N.L.R.B. 1950)

In the Matter of PATERSON FIRE BRICK COMPANY and UNITED BRICK
AND CLAY WORKERS OF AMERICA, A. F. L.
Case No. 6-CA-155.-Decided June 30,19-50
DECISION AND ORDER
On March 27, 1950, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1) of the Act, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Styles].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions filed by the Respondent, and the entire
record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modification.
We agree with the Trial Examiner's findings that by giving the
employees to understand that they could enjoy the benefits of griev-
ance or other employee committees if they renounced the Union, the
Respondent infringed upon the employees' rights as guaranteed in
Section 7 of the Act, and thereby violated Section 8 (a) (1) thereof.
In effect the Respondent offered the grievance committee arrangement
as a reward for abandoning the Union. In its exceptions the Res-
pondent takes issue with the Trial Examiner's recommendation that
in this respect the Respondent be ordered to cease and desist from en-
couraging collective bargaining through employee committees rather
than through the Union. In order to conform our remedy to the
unfair labor practice found, we shall order the Respondent to cease
90 NLRB No. 105.
660
PATERSON FIRE' BRICK COMPANY 661
and desist from offering to bargain through grievance or other em-
ployee committees as a reward for abandoning activities on behalf
of the Union or any other labor organization.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Paterson Fire
Brick Company, Clearfield, Pennsylvania, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Polling its employees to determine whether they desire to be'
represented by United Brick and Clay Workers of America, A. F. L.,
or any other labor organization;
(b) Offering to bargain through grievance or other employee com-
mittees as a reward for abandoning activities on behalf of United
Brick and Clay Workers of America, A. F. L., or any other labor
organization;
(c) Inducing its employees, by wage adjustments or pay increases,
to forego or cease activities on behalf of United Brick and Clay Work-
ers of America, A. F. L., or any other labor organization;
(d) Interrogating its employees concerning their membership in or
activities on behalf of United Brick and Clay Workers of America,
A. F. L., or any other labor organization;
(e) Threatening its employees with reprisals because of their mem-
bership in or activities on behalf of United Brick and Clay Workers of
America, A. F. L., or any other labor organization;
(f) Making promises of reward to its employees in return for their
relinquishment of membership in or abandonment of activities on
behalf of United Brick and Clay Workers of America, A. F. L., or
any other labor organization;
(g) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Brick and Clay Workers
of America, A. F. L., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected' by an
agreement requiring membership in a labor organization as a condi-
tion, of employment, as authorized in Section 8 (a) (3) of.the Act, as
guaranteed in Section 7 thereof.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its plant and at its soft and hard clay mines in Clear-
field County, Pennsylvania, copies of the notice attached hereto,
marked Appendix A.1 Copies of said notice, to be furnished by the
Regional Director for the Sixth Region, shall, after being duly signed
by the Respondent, be posted by it immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or cov-
ered by any other material;
(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 IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent volunteered to assist and assisted employees to
withdraw from United Brick and Clay Workers of America, A. F. L.,
be, and it hereby is, dismissed.
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 poll our employees to determine whether they de-
sire to be represented by UNITED BRICK AND CLAY WORKERS OF
AMERICA, A. F. L., or by any other labor organization.
WE WILL NOT offer to bargain through grievance or other em-
ployee committees as a reward for abandoning activities on be-
half Of UNITED BRICK AND CLAY WORKERS OF AMERICA, A. F. L.,
or any other labor organization.
WE WILL NOT interrogate our employees concerning their union
affiliation and activities; threaten our employees with economic
reprisals because of their union membership and activities;
promise or grant raises in pay and better working conditions or
other rewards in return for relinquishment of union membership
or activity.
1 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, "A Decree of
the United States Court of Appeals enforcing."
PATERSON FIRE, BRICK COMPANY 663
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist UNITED BRICK
AND CLAY WORKERS OF AMERICA, A. F. L., or any other labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the National Labor
Relations Act.
All our employees are free to become or remain members of the
above-named union, or any other labor organization.
PATERSON FIRE BRICK COMPANY,
Employer.
By ------------------------------------
(Representative) (Title)
Dated --------------------
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 AND RECOMMENDED ORDER
Mr. Erwin Lerten, for the General Counsel.
Messrs. Smith, Maine and Z Vhitsett, by Mr. Frank A. Whitsett, for the Re-
spondent.
Messrs. Alfred G. Wagner and Janes C. Gatehouse, for the Union.
STATEMENT OF THE CASE
Upon a third amended charge duly filed by the United Brick and Clay Workers
of America, A. F. L., herein called the Union, the General Counsel of the Na-
tional Labor Relations Board,' by the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania), issued a complaint dated January 25, 1950, against
Paterson Fire Brick Company, herein called the Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 3 (a) (1) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act.
With respect to the unfair labor practices, the complaint alleged in substance,
that the Respondent, during the months of February and March 1949, and there-
after, interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act by: (a) Statements and expressions
tending to discourage concerted activity on the part of Respondent's employees
I The General Counsel and his representative at the hearing are herein called the Gen-
eral Counsel , and the National Labor Relations Board is called the Board.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining and other mutual aid and protection,
and tending to discourage membership and activities among Respondent's em-
ployees in the Union; (b) volunteering to assist employees to withdraw from the
Union; (c) making inquiries of employees for the purpose of ascertaining their
affiliation with labor organizations in general and with the Union in particular ;
(d) threatening to discharge employees if the said employees did not withdraw
from the Union; (e) threatening to shut down the plant if the Union came into
the plant; (f) promising employees that certain of the relatives of the said
employees would be given employment in the plant of Respondent if the said
employees would withdraw from the Union; (g) granting substantial pay in-
creases to employees during the period of the Union's organizational drive among
the employees of Respondent; and (h) suggesting the formation of a grievance
committee among the employees.
Respondent's answer, duly filed, admitted the jurisdictional facts of the com-
plaint and denied the alleged unfair labor practices.
Pursuant to notice, a hearing was held on February 21, 1950, at Clearfield,
Pennsylvania, before the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel and the Union by its representatives. All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the issues. At
the close of the hearing Respondent's motion to dismiss the complaint was
denied and a motion by the General Counsel to conform the pleadings to the
proof with respect to formal matters was allowed. The parties were afforded,
but did not avail themselves of, an opportunity for oral argument at the close
of the hearing. The parties were advised of their right to file proposed findings
of fact, conclusions of law, and briefs. No such documents have been received.
Upon the entire record in the case, and from his observation of witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
The Respondent, Paterson Fire Brick Company, a Pennsylvania corporation,
with its only office and place of business in Lawrence Township, Clearfield
County, Pennsylvania, is engaged in the production, manufacture, sale, and dis-
tribution of fire brick and other clay products. During the 12-month period
ending February 21, 1950, Respondent purchased, for use at its place of business,
raw and other materials having a value of approximately $22,000. Approxi-
mately 6 percent of these materials was shipped to the Respondent's place of
business from points and places outside the Commonwealth of Pennsylvania,
During the 12-month period ending February 21, 1950, Respondent sold and
shipped fire brick and other clay products having an approximate value - of
$253,000. Approximately 50 percent of these products were sold and shipped
from Respondent's place of business to points and places outside the Common-
wealth of Pennsylvania.
Respondent employs an approximate total of 75 employees.`
The undersigned finds that the Respondent, in the course of the conduct of its
business, is engaged in commerce within the meaning of the Act. - ..
2 The facts concerning Respondent ' s business were stipulated.
PATERSON FIRE , BRICK COMPANY
II. THE LABOR ORGANIZATION INVOLVED
665
United Brick and Clay Workers of America, A. F. L., is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Union organizational efforts
On February 2, 1949, Messrs. Alfred G. Wagner and James C. Gatehouse, inter-
national representative and international vice president, respectively, of the
Union, called upon employee Charles F. Lunsford, Jr., at the latter's home, and
sought his assistance in organizing the employees of Respondent. Beginning
the next day, el;orts were made to oigan.ze these wor;:ers. Beginning February
11, 1949, and for 6 months thereafter, union representatives held meetings every
2 weeks for employees of Respondent. The meetings were advertised in hand-
bills and in the community newspaper, and were held in Plymptonville Com-
munity Hall, Lawrence Township, Clearfield County.
B. Facts
As noted above , on February 2, 1949, union representatives Wagner and
Gatehouse called upon Charles Lunsford , Jr., and sought his assistance in
organizing employees of Respondent . The next morning ( February 3, 1949),
Lunsford told William Paterson , vice president of Respondent , that he had
been talking. with the union representatives and that they wanted him to see
the employees and get applications for membership in the Union signed by
them and asked Paterson, "What he thought to see the employees about having
an organization ." Paterson suggested meeting with the employees at noon that
day "to see what they thought of it." Paterson and Lunsford discussed the
matter and agreed to conduct an election that day at the plant with the further
understanding that if the results were unfavorable to the Union , Lunsford
would cease union activity.'
At noon on February 3, 1949 , Respondent assembled the employees in the
plant and fo '. lo'ving short talks by Lansford and Paterson the employees voted
"Yes or No whether they was in favor of the Union or not." Lunsford told
the employees that the union organizers had called upon him and given him
cards to be signed and that he had the cards present , that if the men were inter-
ested, all right, if they weren 't it was all right with him also. Lunsford testi-
fied credibly that Paterson told the employees "that his father had run the
Company for a number of years, that he had tried to be fair to the men and he
also wanted to be fair to the men. And, he stated that the brick yard was not
a fire brick but a building brick plant and that he could not pay fire brick wages.
He'also stated that he thought we could get along better without a union. And,
he Said that during the depression he kept the men working and he believed that
he could keep the men working without a union there ." Peterson 's' version
of his remarks does not differ substantially and he testified further "I said
something to the effect that due to the fact that the Company was in a pre-
carious financial condition I questioned whether the Company could support a
set-up such as it was plus the Union ." At the conclusion of Paterson 's remarks
Lurisford gathered up some paper and passed it around to the employees. The
' Paterson testified that there was such an understanding. Lunsford was not questioned
with respect to this matter. In the light of the entire record the undersigned believes and
finds that there was such an understanding.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees wrote "Yes or No" on the pieces of paper or corners torn off of paper
sacks or anything that would serve as a ballot. Lunsford then collected the
slips and turned them over to a committee .4 The ballots were then counted
and the results announced-25 against the Union and 18 for it-and the
employees returned to their work.
That afternoon Lunsford and Paterson agreed to obtain ballots from employees
not present at the meeting at noon on February 3.
On February 4, 1949, Paterson gave Lunsford some yellow slips of paper on
which were typewritten "I am in favor of the Union-" and Paterson and
Lunsford in Paterson's car drove to employee Roy Ogden's home. There Luns-
ford and Paterson repeated their statements of the previous day and afforded
Ogden an opportunity to write "Yes or No" on one of the yellow slips. After
Ogden marked his ballot and folded it he gave it to Lunsford who "stuck it in
my pocket." Paterson and Lunsford then drove to the Respondent's soft clay
mines.
At the soft clay mines the mine foreman, Harvey Heitsenrether; called the
men from their work and assembled them in the "mine shanty." Again Luns-
ford and Paterson repeated their statements of February 3 and Paterson added
that "if the Union didn't get in we would have a grievance committee" to take
up all grievance matters of the employees.' Following Paterson's remarks the
yellow slips were marked by the men, folded, and returned to Lunsford who put
them in his pocket. At the conclusion of the voting at the soft clay mines
Lunsford, Paterson, and Heitsenrether drove to Respondent's hard clay mines
where the occurrence of the soft clay mines was repeated. After the voting
at the hard clay mines, Heitsenrether returned to the soft clay mines and
Lunsford and Paterson proceeded to the home of employee Kevis Reed. Again
Lunsford and Paterson repeated their statements, following which Reed marked
on the yellow slip of paper and returned it to Lunsford who put it in his pocket.
The following testimony of Lunsford is illustrative of what occurred at
the homes of the employees visited.
Q. And, what happened at the home of Kevis Reed?
A. He invited us in, we sat down. I stated our reason for being there,
Mr. Paterson and myself. I showed him an application card, told him
that the organizer wanted to organize the plant and after I got through
talking to him Mr. Paterson talked to him, told him practically the same
thing he told the hard clay miners and the soft clay miners.
Q. Did Mr. Paterson say anything to Kevis Reed about a grievance
committee?
A. I'm not sure whether he did or not.
Q. What happened after Mr. Paterson spoke to Kevis Reed?
TRIAL EXAMINER WHEATLEY. Let's get what Mr. Paterson said to him,
I think that is material.
Q. (By Mr. LERTEN.) Will you give us in as great detail as you can
remember what Mr. William Paterson said to Kevis Reed?
A. Well he told him that the plant had operated for a number of years,
that it was not a fire brick plant but a building brick plant ; said that his
father had tried to be fair to the men and he also wanted to be fair ; he
4 The donation committee-a committee that exists for the purpose of collecting dona-
tions for sick employees-was used as a tallying committee.
5 Paterson could not remember saying "that if the Union did not get in we will form a
grievance committee." However, the undersigned credits the affirmative testimony of Luns-
ford and Palovzsik that such a statement was made by Paterson.
PATERSON FIRE: BRICK COMPANY 667
figured that we would get along better without a Union; he believed that
he couldn't pay the Union wages.
Q. Now, what happened after William Paterson spoke to Kevis Reed?
A. I gave him one of these yellow slips of paper to vote on.
Q. You gave it to Kevis Reed?
A. Yes.
Q. What did he do with it?
A. He took it into another room and voted.
Q. Then what happened?
A. He gave me the paper and I put it in my pocket.
Q. What happened after that?
A. Then we visited another employee.
Lunsford and Paterson next visited the home of employee John Jancus where
they repeated their statements and afforded Jancus an opportunity to vote but
Jancus did not vote. "He said he would go along with the majority of the men."
After leaving Jancus' home Lunsford and Paterson returned to the plant and
Lunsford talked to the night crew (of four or five employees) and they voted om
the yellow slips. Paterson was not present when Lunsford talked to the night
crew.
Lunsford "turned in those yellow slips of paper to the tally committee, the
donation committee." At about 3: 30 on the afternoon of February 4, 1949,
the committee counted the ballots and announced the total results-25 for and
43 against-to those present including William Paterson and Harvey Heitsen-
rether. Thereafter the Company posted notices stating the results of the poll
and suggested a grievance committee of one man from each department be
formed! Shortly thereafter and prior to February 15, 1949, a grievance com-
mittee consisting of a representative from each department was formed. The
committee representatives were selected by the employees in the respective de-
ments and the selection or election of such representative occurred during lunch
hours. The committee conferred with management concerning grievances.
Lunsford testified credibly that on February 14, 1949, Paterson said to him
that he (Paterson) had talked to some of the employees and they weren't in
favor of a union, that Paterson asked Lunsford to call a meeting of the employees
and tell them to call off the Union and wanted to know what Lunsford was going
to do about it. Paterson testified that in view of the agreement of February 3
(that if the results of the election were unfavorable to the Union Lunsford would
cease union activity) and since the ballot turned out unfavorable to the Union
he wanted to know why Lunsford did not follow through his original agreement
(agreement of February 3). Paterson testified "The other part there about
the men and everything else like that, it wasn't on my mind. I do not recall
saying anything about them." The undersigned credits Lunsford's version of this
incident.
O The notice was not available as an exhibit and the testimony is conflicting as to the
exact language of the suggestion that a grievance committee be formed. Lunsford testified
the notice stated "Out of this [out of the balloting] comes the suggestion that we form
a grievance committee." Lunsford's testimony is corroborated by the testimony of em-
ployee Howard Withey. Paterson testified the notices stated that "A suggestion had been
heard from outside [employees outside the main plant] that a grievance committee would
be desired, that this was acceptable to the Company and if it was agreeable to the men
the men should form a committee. one man from each department." The undersigned cred-
its Lunsford's testimony on this issue and believes in any event that it is clear that the
notice itself in fact suggested the formation of a grievance committee.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lunsford testified that on February 15, 1949, Paterson told him "He had met
the officials of the County National Bank and they told him that I was supposed
to be a foreman and if I was a foreman promoting a union they'd better get rid
of me." A discussion then ensued as to whether Lunsford was in fact a foreman.
Paterson testified with respect to this incident "The only thing that I can recall
of that was stating to him that as we had him carried in a supervisory capacity,
it was very embarrassing to us to have him as such and at the same time con-
ducting a union drive."
In April of 1946, Lunsford informed Respondent's president, Bruce Paterson-
now deceased, that he had a better job and was going to quit unless he got more
hours of work. At that time Lunsford's classification was changed to foreman
or supervisor of the welding department and he was given more hours of work.
The reason for the change in classification was so that Lunsford "could work
more hours without being paid time and a half for overtime." Lunsford kept
this classification until March 1.949 when his hours of work were reduced "as a
result of a finding of the inspector of the Wage and Hour Division, wherein the
inspector found that Mr. Lunsford was not a supervisor, within the meaning of
the Wage and Hour Act, and therefore, Mr. Lunsford would have to be paid time
and a half for all work in excess of 40 hours a week." There was no change in
rate of pay or in duties as a result of Lunsford's change in classification to fore-
man or supervisor. Lunsford is the only welder employed by Respondent and
has been the only one so employed during the last 5 years. Paterson testified
concerning Lunsford's duties :
When there was welding to be done, the welding jobs were assigned to him;
when there was maintenance to be done, he worked on maintenance or just
any mechanical job that came up during the working days in the plant.
From time to time as occasion required Lunsford was given a helper or assistant
for as long as he needed such assistance or the completion of the job. The helper
would "give a lift or something or hold something while I [Lunsford] weld."
No regular helper was assigned to Lunsford. When he needed help whoever was
free-laborers, machine operators, "contract workers and so forth"-rendered the
required assistance. Lunsford did not and does not have anything to do with
hiring, discharging, promotions, pay increases or decreases, or anything of that
nature.
Respondent's counsel would not make a statement as to whether Respondent
was "contending that Mr. Lunsford is or was a supervisor."
The undersigned finds that during the period of time involved in this proceeding
Charles E. Lunsford, Jr., was not a supervisor within the meaning of the Act and
that Lunsford's classification as a supervisor was capitalized upon and utilized
by Paterson on February 15 as another means of inducing Lunsford to cease his
union activities.
Lunsford testified credibly that in March 1949, Paterson "wanted me to call this
here union business off, we'd get along better there." Paterson (lid not testify
with respect to this incident.
William A. Livergood and five other employees worked on a flow or production
line.? In April or May of 194S, three of these workers (the three hackers) were
changed from an hourly rate of pay to a piecework or contract basis of pay.
Beginning in June of 1948, and approximately monthly thereafter, Livergood
sought to'have his own basis of pay changed from an hourly to a piece or contract
' Maines, Shank, and Lezer, hackers ; William Miller, a machine man, John Owens, a pan
man, and Livergood , a pugger.
PATERSON FIRE BRICK COMPANY 669
basis. On each occasion he was told by his foreman, Emory Shifter, that he
would think about it. In December of 1948, Livergood appealed to Paterson for
a change in basis of pay and was told that Paterson would take it up with Shifter.
In January 1949, Shifter told Livergood he didn't know how it could be done
and Livergood volunteered that it was, done at Riverview (the Clearfield Clay
Products Company at Riverview). Around 5 weeks later on or about February
1.5, 1949, Paterson and Shifter called on Lynn Boal,° secretary of the Clearfield
Clay Products Company, and conferred with him "as to how they were working
their production line," and on or about February 19, 1949, Livergood was informed'
by Shifter that the change was being made and dated back to February 16, 1949.
William Miller, the machine man, also received a wage adjustment at this time.
It was stipulated at the hearing that the following employees ° received pay
increases on the dates indicated and in the amounts noted :
William Livergood, pay increase effective February 15, 1949, from $1.14 an.
hour to 3S cents per thousand brick; amounting to approximately $3 per day
William Miller, pay increase effective February 15, 1949, from $1.111/2'
per hour to 38 cents per thousand brick ; amounting to approximately $3 per
day
William Coulter, pay increase effective February 15, 1949, from $1.14 an
hour to $1.14 (sic) per thousand brick; amounting to $3 per day;
John Owens, pay increase effective February 15, 1949, from $1.111/.2 per
hour to $1.14 per hour;
Faye Derick, pay increase effective March 1, 1949, from $1.111/2 per hour
to $1.18 per hour ;
Irvin McLaughlin, pay increase effective February 15, 1949, from $1.111/2
per hour to $1.14 per hour.
The Respondent operates two flow or production lines. Livergood, Miller,
Coulter, Owens, and McLaughlin worked on one or the other of the lines. Liver-
good and Coulter are puggers. William Miller is a machine man and John
Owens and Irvin McLaughlin are pan men. As noted above, some of the men
on these flow lines worked on an hourly basis whereas some worked on a piece-
rate or contract basis.
According to Paterson in November or December, Foreman Shifter conferred
with him concerning the different basis of paying the men and the wage adjust-
ments were made because of Livergood's expressed dissatisfaction and to equalize
all the men in the flow lines.
Paterson stated that in January 1949, he and Shifter conferred with officials
of the Clearfield Clay Products Company at Riverview as to how they were
working their production flow line 10 and that thereafter until the date the in-.
creases were put into effect the matter was "shelved" so that he and Shifter
could "think it over," that there were some problems that came up in doing that,
which we worked on for a while. And, in due course of time it became evident
to us how we could do it. Which, we did go ahead and do."
On the premise that the visit to the Clearfield Clay Products Company was
made in January 1949, Paterson, concerning the delay in making the wage ad-
8 Paterson fixed the date of this visit as being in January 1949. Shifter was not called
as a witness in this proceeding. The undersigned credits the testimony of Livergood and
Boal and finds that the visit was made on or about February 15, 1949.
° Only Livergood appeared as a witness in this proceeding.
° At noted above the undersigned finds that the visit to the Clearfield Clay Products
Company at Riverview was made on or about February 15, 1949, and that the wage adjust-
ments were made immediately thereafter.
X7O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.justments effective, testified "We do not do anything very fast over there. That
procedure there is typical of any changes we have made, they have always been
slow and a lot of speculation as to what the result would be. If we make quick
changes and everything like that, you get quick dissension, so you have to be
very sure of what you are going to do before you do it, to cause the least dissatis-
faction, understand." The speed of Respondent in taking action to combat
unionization of its plant after it was "shocked" to hear, on February 3, 1949,
that the Union was coming into the plant is noteworthy in the light of the
above statement.
Paterson testified that no union activity came to his attention between the
date on which the results of the poll were announced and the date the wage
increase was made effective and that "at the time we went into them, [the
wage adjustments] we as a company, had dismissed the whole idea of a union
onslaught." As noted above the first meeting of the Union for employees of
Respondent was held February 11, 1949, and was advertised in the handbills
mnd in a local newspaper. Paterson denied seeing the advertisements or knowing
.of the meeting. Wagner, whose testimony the undersigned credits, testified
that on February 9, 1949, he met with Paterson and requested that the notice
regarding the election results be removed from the bulletin board and told
:Paterson of the union meeting scheduled for February 11, 1949, and requested
that notices of this meeting be posted. Paterson testified that the meeting with
Wagner "covered a lot of ground but I can't remember anything about that"
'[whether he was notified that there was a union meeting for Respondent's
,employees called for February 11, 1949, and requested to post a notice to that
affect]. As noted above and hereinafter, Paterson and Heitsenrether engaged
Ein conduct and made statements indicating knowledge that the Union was active
.at or about the time of the wage increases.
Concerning Faye Derick and the wage adjustment to him, Paterson testified :
.He had been a foreman in charge of getting clay from the stripping and
;then when that job played out, being an old man, we gave him work in the
Plant which on Saturdays had been firing a boiler. When all this election
and everything came up we decided to put him back to 5 days, at which
time we changed his hourly rate of pay.
The undersigned believes and finds that the wage adjustments were put into
effect at the time in question because of the Union's current activity and for the
purpose of inducing the employees to forego or cease union activities.
Paul Palovzsik, a miner at the soft clay mines, testified that on or about
February 4, 1949, about 9: 30 in the morning (prior to the time that Lunsford
.and Paterson arrived and the conducting of the election at the soft clay mines)
Harvey Heitsenrether, foreman of the mines, asked him (Palovzsik) what he
,thought of the Union, that he told Heitsenrether he "didn't think the Union would
hurt us in any way" and that Heitsenrether said "Well, I want you to vote
`No.' If the Union gets in we'll all be going down the road with our dinner
buckets" and told Palovzsik to "make slips with the word `no' and give them to
Mr. Lansford when he came up for this election."
Palovzsik testified that about a week later Heitsenrether "stopped me right at
the end of the timbers and told me that I had double-crossed him. I asked him
what he meant. He said that he had heard that I was in with these union men,
that I had voted the wrong way."
PATERSON FIRE BRICK COMPANY 671
Palovzsik testified that around February 17, 1949, Heitsenrether came to the
place where Palovzsik was working and "asked me how I stood with the
Company. I told him the Company did a lot for me since I came there; that
I had nothing against the Company. He said, `How come it is that you are
always sticking with the Union ? What can the Union do for you?' I told him,
for one thing the Union could give me a vacation with pay, where I couldn't get
it from the Company ; another thing, I could get a raise ; another thing , it could
better my working conditions . He says, `The only thing the Union can do for
you is to put you out of work.' He says, 'If the Union don't win you can be sure
that you are going to be looking for another job.' '
Heitsenrether testified as follows :
Q. Did you have a conversation with Paul Palovzsik on or about nine
thirty a. in . the morning of February 4, 1949 before Mr. Lunsford and Mr.
Paterson got there?
A. No.
Q. Mr. Palovzsik testified that you did have such a meeting with him at
nine thirty a. in. on the morning of February 4, 1949, and that you asked him
what he thought of the Union ; did you do that?
A. No.
Q. He further testified that at that meeting you asked him to vote against
the Union to give Lunsford a "No" slip; did you do that?
A. No.
Q. Was there any discussion of the Union at the mine or among the
employees at the soft clay mine?
A. Well, yes , they done a little talking about it.
Q. Did you overhear that conversation?
A. They was all talking about it.
Q. Did you talk about it, too?
A. Sure.
Q. Did you at any time solicit any votes against the Union?
A. Me?
Q. Yes.
A. No.
Q. Did you make any threat to discharge any employee there at the soft
clay mine or any other employee of the Company if they did not vote against
the Union?
A. No.
Q. Did you threaten to discharge any employee of the Company if they
refused to withdraw from the Union?
A. No.
Q. Did you ever ask an employee to withdraw from the Union?
A. No.
Q. Did you ever ask an employee whether or not he belonged to the Union.?
A. That, I don't know ; I don't think I ever did.
Q. What is that?
A. I don't think I ever did.
Heitsenrether admitted knowing that Lunsford and Paterson were coming to
the mine.
Concerning Palovzsik ' s testimony that Heitsenrether accused Palovzsik of
having double -crossed him , Heitsenrether testified :
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Mr. Palovzsik testified that at a later date, about a week after February
4th, 1949 you accused him of having double-crossed you in voting for the
Union, did you do that?
A. No.
Heitsenrether denied making the statement to Palovzsik that he would be out
of a job if the Union got in and stated that "I made a statement , that if they
made the same demands they said they were going to make we might be all of
us out of a job." Heitsenrether testified that he thought his remark was ad-
dressed to the whole crew and that he had reference to the demands which the
men working under him had told him the Union was going to make . Heitsenrether
did not fix the date or other details concerning this remark.
Heitsenrether also admitted saying to the men working for him at the mines
"that if the Union came in all of you might lose your jobs ." Heitsenrether fixed
the time of this remark as "sometime last winter" and could not supply other
details.
Heitsenrether admitted that on the day of the election he talked to the men at
the mines before the election took place but couldn ' t recall stating anything more
than " they were going to have an election."
From his observation of the witnesses and from his analysis of the whole
record, the undersigned credits the testimony of Palovzsik set forth above.
Palovzsik testified that on February 4, 1949, immediately after the election, he
asked Paterson whether there was any chance of his ( Palovzsik 's) brother getting
employment with Respondent , that Paterson said things were slack at that time
but "if they should pick up that he would consider a job for him ." According to
Palovzsik around the end of February or the beginning of March 1949 , he again
asked Paterson "if there was any chance of my brother getting a job" and Pater-
son "told me (Palovzsik ) if I would turn in my union card he would consider it."
Paterson testified that 2 or 3 months before February 1949 , Palovzsik asked
about employment for his brother and that he (Paterson ) told him that "if
conditions in the spring warranted it and we were able to, that if the Com-
pany could go ahead and he was still in favor of taking a job that we would
consider him favorably and left it go at that . Paterson denied telling Palovzsik
that if he would give his union card back he would consider giving his brother a
job.
The undersigned credits the testimony of Palovzsik and finds that Paterson
did make the statements testified to by Palovzsik.
C. Conclusions and findings
Upon the foregoing facts, the undersigned concludes and finds :
1. That Respondent unlawfully infringed upon the statutory rights of its
employees by polling its employees on February 3 and 4, 1949;1 (see Stainless
Ware Company of America, 87 NLRB 138 and Stocker Manufacturing Company,
86 NLRB 666 and cases cited therein).
2. That the conduct of Respondent in connection with the afore-mentioned
election, under the attendant circumstances, intimated to the employees Re-
spondent's antipathy to union membership and that they stood to gain by re-
nouncing the Union and relying on Respondent alone.
11 Although the complaint did not specifically allege polling employees as a violation of
the Act the issue was fully litigated at the hearing. (See J. H. Rutter-Rea Manufacturing
Co., 86 NLRB 470 and Olin Industries, Inc., 86 NLRB 203.)
PATERSON FIRE! BRICK COMPANY 673
3. That Respondent by oral statements and written notices suggested the for-
mation of, and indicated its willingness to deal with, a grievance committee of
its employees and, under the circumstances herein, intimated to the employees
that they stood to gain by renouncing the Union and relying on Respondent alone"
4. That Respondent by its statements and expressions to Lunsford and Pa-
lovzsik and by its poll of its employees interrogated employees concerning their
union affiliation, attempted to discourage activities on behalf of the Union, at-
tempted to induce withdrawals from such activities, made promises of reward
in return for relinquishment of union membership and activity, and threatened
possible economic reprisals because of union membership and activity.
5. That the retroactive and unannounced "wage adjustments" were put into
effect at the time in question because of the Union's activity which Respondent
desired to forestall and for the purpose of inducing the employees to forego or
cease union activities. (See Lancaster Garment Company, 78 NLRB 935.)
The undersigned further concludes and finds that by the afore-mentioned expres-
sions and conduct Respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
The General Counsel contended at the hearing that the facts concerning the
conversation between Paterson and Lunsford on or about February 14, 1949,
support the allegation of the complaint that Respondent volunteered to assist
and assisted employees to withdraw from the Union (paragraph 4 (b) of the
complaint). The undersigned believes and finds that this allegation of the
complaint is not supported by this incident or by any other evidence in the
record herein.
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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act, the undersigned will
recommend that it cease and desist therefrom and take affirmative action in order
to effect the policies of the Act.
Upon the entire record, the undersigned infers and finds that the Respondent's
illegal action, mentioned above, discloses an intent to defeat self-organization
and its objects, and an attitude of opposition to the purpose of the Act. Because
of the Respondent's unlawful conduct and the underlying purposes manifested
thereby, the undersigned is convinced that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed by the Act,
and that danger of commission in the future of any or all of the unfair labor
practices defined in the Act is to be anticipated from the Respondent's conduct
"The second amended charge herein alleged that the grievance committee was formed
and exists in violation of Section 8 (a) (2) of the Act. However, such an allegation does
not appear in the complaint or the third amended charge upon which the complaint is based.
As noted above the complaint with respect to the grievance committee merely alleges its
suggested formation as a violation of Section 8 (a) (1).
003847-51-vol. 90-44
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the past. The preventive purposes of the Act will be thwarted unless the
recommendations are coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, to prevent recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that the Respondent cease and desist, not only from the unfair
labor practices herein found, but also from in any other manner interfering with,
restraining, or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Since it has been found that the record does not support paragraph 4 (b) of
the complaint, the undersigned will recommend that this allegation of the
complaint be dismissed.
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. United Brick and Clay Workers of America, A. F. L., is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of 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 (a)
(1) of the Act.
3. 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 above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned hereby recommends that the
Respondent, Paterson Fire Brick Company, its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Polling its employees to determine whether they desire to be represented
by the United Brick and Clay Workers of America, A. F. L., or any other labor
organization ;
(b) Encouraging collective bargaining through grievance or other employee
committees rather than the United Brick and Clay Workers of America, A. F. L.,
or by any other labor organization ;
(c) Inducing its employees, by wage adjustments or pay increases, to forego
or cease activities on behalf of the United Brick and Clay Workers of America,
A. F. L., or any other labor organization;
(d) Interrogating its employees concerning their membership in or activities
on behalf of the United Brick and Clay Workers of America, A. F. L., or any
other labor organization;
(e) Threatening its employees with reprisals because of their membership in
or activities on behalf of the United Brick and Clay Workers of America, A. F. L.,
or any other labor organization ;
(f) Making promises of reward to its employees in return for their relinquish-
ment of membership in or activities on behalf of the United Brick and Clay
Workers of America, A. F. L., or any other labor organization ;
(g) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
PATERSON FIRE ' BRICK COMPANY 675
Lions, to join or assist United Brick and Clay Workers of America, A. F. L., or
.any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to refrain from any or
-all of such activities except to the extent that such right may be affected by
agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Sec-
tion 7 thereof.
2. Take the following affirmative action which the undersigned finds will
•effectuate the policies of the Act :
(a) Post at its plant and its soft and hard clay mines in Clearfield County,
Pennsylvania, copies of the notice attached hereto, marked Appendix A. Copies
,of said notice, to be furnished by the Regional Director of the Sixth Region, shall,
after being duly signed by the Respondent, be posted by it immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure
-that said notices are not altered, defaced, or covered by any other material ; and
(b) Notify the Regional Director for the Sixth Region in writing within
twenty (20) days from the date of receipt of this Intermediate Report and
Recommended Order what steps the Respondent has taken to comply with the
foregoing recommendations.
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondent volunteered to assist and assisted employees to withdraw
from the United Brick and Clay Workers of America, A. F. L.
It is further recommended that, unless the Respondent shall, within twenty
(20) days from the date of the receipt of this Intermediate Report and Recom-
mended Order, notify 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 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support
thereof ; and any party may, within the same period, file an original and six
copies of a brief in support of the Intermediate Report and Recommended Order.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party filing the same shall serve a copy thereof upon each of the other parties.
Statements of exceptions and briefs shall designate by precise citation the por-
tions of the record relied upon and shall be legibly printed or mimeographed,
and if mimeographed shall be double spaced. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required
by Section 203.85. As further provided in said Section 203.46 should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ommended order herein contained shall , as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings , conclu-
sions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington , D. C., this 27th day of March 1950.
ALBERT P. WHEATLEY,
Trial Ex"viner.
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 poll our employees to determine whether they desire to be
represented by the UNITED BRICK AND CLAY WORKERS OF AMERICA, A. F. L.,
or any other labor organization.
WE WILL NOT encourage collective bargaining through grievance or other
employee committees rather than the UNITED BRICK AND CLAY WORKERS OF
AMERICA, A. F. L., or any other labor organization.
WE WILL NOT interrogate our employees concerning their union affilia-
tion and activities ; threaten our employees with economic reprisals because
of their union membership and activities ; or promise or grant raises in
pay and better working conditions or other rewards in return for relinquish-
ment of union membership or activity.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the UNITED BRICK AND CLAY WORKERS OF
AMERICA, A. F. L., or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in concerted)
activities for the purposes of collective bargaining or other mutual aid
or protection , or to refrain from any and all of such activities except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as author-
ized in Section 8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain members of the above -named.
union, or any other labor organization.
PATERSON FIRE BRICK COMPANY,
Employer.
Dated -------------------- By .------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.