The Brown-Brockmeyer Co.

National Labor Relations Board - Board Decisions

May 29, 1943

49 N.L.R.B. 1299 (N.L.R.B. 1943)

I
In the Matter of THE BROwN-BROCKMEYER Co. and UNITED ELEC-
TRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. C-0453.-Decided May 29,.•191E3
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by United
Electrical, Radio & Machine Workers of America, C. I. O., ' herein
called the Union, against The Brown-Brockmeyer Co., herein called
the respondent, a hearing was held before a Trial Examiner in
Dayton, Ohio, from October 19 to 30; 1942, in which the Board, the
Union, the respondent, and B-Line Employees Association, herein
called the B-Line, participated by their representatives. The Board
has reviewed the rulings of the Trial Examiner made on motions and
on objections to 'the admission of evidence and finds that no prej-
udicial errors were committed. The rulings are hereby affirmed.
On December 11, 1942, the Trial Examiner issued his Intermediate
Report finding that the respondent had engaged in violations of the
Act. Exceptions to the Intermediate Report and briefs were there-
after filed, by the respondent and the B-line. Oral argument was
held before the Board on May 6, 1943, in which the Union and the
B-Line participated. Upon our consideration of the entire record,
we affirm and adopt the findings of the Trial Examiner, except in-'
sofar as they are inconsistent with our findings and conclusions as
hereinafter set forth.
The record is clear and we are convinced that the respondent en-
gaged in the unfair labor, practices hereinafter found: In October
1940 the Union began to organize the respondent's employees and by
November 4, informed the respondent of its claim to a majority rep-
resentation. Shortly thereafter, a number of employees took steps to
form the B-Line. The respondent rendered assistance and support
to the B-Line in its origanizational efforts and clearly indicated to
the employees that it would be to their advantage to join the B-Iine.
Thus, about November 28, the B-Line scheduled an organizational
meeting to be held on Coventry Road as 4: 30 p. in. of the same day.
The respondent learned of this meeting from the B-Line notices
49 N L R B, No. 159.
N 1299
531647-43-vol. 49-83
1300 DEOTSrONS OF INiArrr0\!AL LABOR RELAT'ION'S BOARD
which had been posted on the plant bulletin board and near the super-
intendent's desk and from one which was left on Foreman Baldasare's
desk. With full knowledge of the majority representation claim of
the Union, the respondent closed down its plant one-half hour
earlier than usual in order to facilitate attendance at the meeting
by those employees who regularly worked until 5 p. m. Foreman
Baldasare told employee Leroy Christ, at the Trial Examiner
found, that the plant was going to close at 4:,30 p. m. for the
meeting at, Coventry Road. Foreman Fred Sheeley told employee
William Midlam, as found by the Trial Examiner, that Brown, Jr.,
the respondent's then superintendent, thought that Midlam "ought
to go out [to the B-Line meeting] to see what it is all about anyway."
So far as the record shows, no employee was reprimanded or dis-
ciplined for the posting of the notices of the B-Line meeting. More-
over, shortly after the B-Line began its membership drive, Brown,
Jr., told employee Elias Stout, also as found by the Trial Examiner,
"You signed a C. I. - 0. card ..,. Why not sign the B-Line
cards? _ ... Maybe it would do you some good."
Pursuant to an agreement between the Union, the B-Line, and the
respondent, a consent election was held on March 4, 1941, as a result
of which the Union was designated as the bargaining representative
by a majority of the employees Thereafter, on June 5, 1941, the
respondent executed a collective bargaining agreement with the
Union; while the B-Line lapsed into an inactive state. The contract,
among other things, called for a basic 8-hour day and 40-hour week
with time and. one-half for overtime and double time' for specified
holidays. Except for a 5-cent per hour wage increase, the terms
and conditions of the contract were similiar to, the respondent's past
practices.
Soon after the execution of the contract, the respondent reduced
the working hours of the employees, thereby eliminating overtime pay.
About Christmas time 1941, employee Robert Luckey, who had fre-
quently worked overtime prior to the execution of the union contract,
spoke to Brown, Jr., about the possibility of securing overtime work.
As found by the Trial Examiner, Brown, Jr., replied that "as long
as we have this labor dispute we can't do much about if." In view of
the fact that there was no labor dispute pending at this time,' we find
that Brown, Jr.'s reply was intended to place upon the Union the onus
for the respondent's failure to work overtime, an accusation which was
wholly unwarranted.2 That this statement had its' desired effect is
readily apparent from Luckey's testimony that thereafter he "would
'It was not until February 1942. that the Union filed a grievance with the respondent
about its failuie to comply with the State law limiting the working hours of women. -
2 The Union had never objected to overtime work : the provisions in its contract merely
embodies the requirements of the Federal statute on wages and hours.
THE' BROWN-BR'0',C'KMEY'E'R CO. 1301
just as well see the C. I. O. out" and from his subsequent conduct in
inducing a large number of employees to join the B-Line upon its
revival:
Upon request of the Army and Navy in December 1941 that employ-
ers engaged on war orders should operate on New Year's Day, the
respondent first interviewed the employees individually on their atti-
tude in this respect and then, on December 30, requested the Union
to work on New Year's Day on condition that it waive the contract
provision for double pay for that day, at the same time informing
the Union that all the employees individually polled had indicated
their desire to work that day.3 The Union refused to waive the con-
tract provisions and the plant did not operate on New Year's Day.
During the same month, the respondent applied to the Department of
Industrial Relations of the State of Ohio for permission to employ
women more than the statutory maximum of 45 hours per week. The
State Department granted this request on January 3, 1942, for a lim-
ited period. On February 20, 1942, the respondent renewed its re-
quest, stating in its letter that, upon the Union's objection to having
female employees work in excess of the statutory hours, the respondent
made an independent survey of the majority of the female employees
and that all but one expressed a willingness',to work overtime. By
letter dated March 4, 1942, the department denied the request.4
The respondent's conduct in bypassing the Union and taking indi-
vidual polls of the employees in December 1941 and in February 1942
on matters which were proper subjects for collective bargaining, tended
to discredit the Union as a bargaining representative, and lowered its
prestige in the eyes of its constituents. The respondent brought this
thought home to the employees more graphically at the first oppor-
i tunity. Thus, on February 25, 1942, during the course of a discussion
with employees Albert Schuetz and James Ray concerning their work,
Brown, Sr., president and treasurer of the respondent stated, as found
by the Trial Examiner, "Well, that is the goddam union for you.
You wanted it and you got it. Now you got what you wanted . . .
Before the,union came in there we made money and the employees
made money . . . But now neither of us are making money."
In April 1942, shortly before the expiration of the Union's contract,
the B-Line, which had been inactive since the consent election, ap-
parently found in the issue concerning overtime a basis for resurgence.
The B-Line thereupon resumed its organizational activities, centering
? The record does not indicate whether the individual employees were also asked their
position on waiving the contract requirement for double pay.
* The letter stated that the purpose of relaxing the statutory requirements was "to aid
management in its responsibility of arranging their personnel in a manner to relieve un-
favorable situations and, where it is necessary, to employ additional help"; it denied the
respondent ' s request because of its belief that "the pei iod granted has amply served its
purpose."
1302 DE,C'ISJOA"S,OF NATP0XAL LABOR RELATIONS BOARD ,
them on the question of overtime. Petitions for overtime, which were
distributed by B-Line members, were signed by a substantial number
of the respondent's employees. The respondent took advantage of the
situation further to support the B-Line and to demonstrate its hostility
to the Union. When in May 1942 employee Midlam, a member of
the Union, inquired of Brown, Jr., about overtime, the latter replied,
as the Trial Examiner found, that the B-Line was pretty strong, that
they were out for a 48-hour week, and that he thought the shop should
be working 48 hours a week. As further found by the Trial Examiner,
during the same month, Brown, Jr., told employee Steele, union stew-
ard, in the,course of a dispute over his work, "I suppose you cwant me to
fire you . . . That's what you want, so you can run down to the
goddam C. I.-0. and have them put you back to work."
On August 3, 1942, the respondent, the Union, and the B-Line again
agreed upon a consent election to be held August 20. Thereafter, as
the Trial Examiner found, the respondent further assisted the B-Line
by its letter of September 15, in which it stated that the order of the
State Department of Industrial Relations, permitting the respond-
ent's female employees to work more than 45 hours per week, was
rescinded because of opposition by the Union, a statement which the
,respondent knew,was ndt in accord with the facts: The value of such
a written statement in obtaining votes for the B-Line in the scheduled
election; needs no elaboration. The consent election was postponed by
the Board's Regional Director because of unfair labor practice charges
filed by the Union. As -a result of this action, the B-Line employees
struck in protest for about a half-hour before closing time on August
'•20; whereupon the respondent closed the plant for the remainder of
the day shift. '
While we do not agree with the Trial Examiner's conclusion that
the overtime issue, upon which the B-Line was revived, was inspired
by the respondent, we are of the opinion and find that the respondent
engaged in a course of subtle opportunism and took advantage of every
new situation to discredit the Union and support the B-Line's revival.5
While we also do not agree with the Trial Examiner's finding that the
activities of employees Lawson and Ehrstine in the B-Line are at-
tributable to the respondent,s we' are convinced and find, as did the
-;Trial Examiner, that the respondent, by its conduct from the time
5 See, e' g., N L It. B. v. Precision Castings Co, Inc, 130 F (2d) 639, 643 (C. C. A. 6).
6 The Trial Examiner found that Lawson and Ehrstine were supervisory employees for
whose conduct the respondent was responsible we are not convinced from the' entire record -
that the duties and positions of these employees were such as to bind the respondent for their
conduct or that the employees generally had just cause to believe that they were acting for
and in behalf of the respondent.
THE BROWN-BROCKMEYER Co: - 1303' ,
that the B-Line first began to organize in November 1940, dominated
and interfered with the formation and administration of the B-Line
and contributed support to it in violation of Section 8 (2) of the Act.
We also find that the afore-mentioned statements of, Foremen
Baldasare and Sheeley, Superintendent Brown, Jr., and President
Brown, Sr., the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act. ,
The Trial Examiner. also found that on August 20, 1942, the re-
spondent locked out those employees who were unfavorable to the B-
Line in order to discourage membership in the Union and to give sup-
port to the B-Line. We do not agree. About 4:00 p. in. on August
20, 1942, approximately one-half hour before the end of the day shift,
the B-Line struck in protest against the postponement by the Regional
Director of the consent election previously scheduled for that day.
Various estimates of the number of employees who left the plant
ranged from 30 to 275. The walk-out resulted in considerable con-
fusion. Because of the resultant commotion a number of the non-
striking employees found it difficult to continue operations. At least
one of the conveyors was apparently stopped by an unidentified per-
son. In addition to the inspectors and testers,.whose duties were par-
ticularly important for efficient operation, many 'other employees
holding strategic positions along the conveyor line of the plant, walked
out. The record indicates that only a few of the plant's operations
could be performed independently of the well-integrated conveyor
system. Only one-half hour remained to the end of the day's shift.
The respondent's officials, upon witnessing the walk-out, ordered the
remaining employees to go home. All parties agree that following
the walk-out of the B-Line members, the respondent could continue
operations only at an increased cost of production and with reduced
efficiency. Under all the circumstances and upon the entire record,
we, find that in shutting down its plant on August 20, 1942, the re-
spondent did not violate the Act.
The Trial Examiner found that the respondent did not discrimina-
torily discharge Edith Rowland. We agree and so find.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
4 We agree with the Trial Examiner that all the facts prior and subsequent to the consent
election agreements should be considered because, as we find in the text , the respondent's
unfair labor practices continued after each agreement Moreover, prior to the second agree-
ment, the Union filed with the Board unfair labor practice charges with respect to the B-Line.
These charges were withdrawn by the Union only upon the suggestion of the Board's Re-
gional Director and upon the assumption that an election would be held pursuant to the
agreement. The election was then indefinitely postponed by the Regional Director
1304 DECTSION'S OF NAATTONAL LABOR RELATIONS BOARD
to take certain affirmative action designed to effectuate the policies
of the Act.
We have'found that the respondent dominated and interfered with
the formation and administration of the B-Line and contributed sup-
port to it. In order to effectuate the policies of the Act and free the
employees of the respondent from such interference and domination
and effects thereof, which constitute a continuing obstacle to the ex-
ercise by its employees of the rights guaranteed by the Act, we shall
order that the respondent refrain from recogpizing the B-Line as a
representative of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment,,or other conditions of work, and completely
disestablish it as such representative.
We have found that the respondent did not shut down its plant on
August 20, 1942, in order to discourage membership in the Union and
to assist the B-Line; and did not discriminatorily discharge Edith
Rowland. We shall therefore order that the allegations of the com-
plaint in these respects be dismissed.
Upon the basis of the above findings of fact and -upon the entire
record in the case , the Board makes the following :
CONCLUSIONS OF LAW'
1. United Electrical, Radio & Machine Workers of America (C.
I. 0.), affiliated with the Congress of Industrial Organizations, and
B-Line Employees Association, unaffiliated, are labor organizations
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 re-
spondent has engaged in and is engaging in unfair - labor practices
within the meaning of Section 8 (1) of the Act.
3. By'dominating and interfering with the formation and admin-
istration of B-Line Employees Association and contributing support
to it, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) 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.
5. By shutting down its plant on August 20, 1942, the respondent
has not discriminated in regard to hire and tenure of employment,
within the meaning of Section 8. (3) of the Act.
6. By discharging Edith Rowland, the respondent has not dis-
criminated in regard to her hire and tenure of employment , within
the meaning of Section 8 (3) of the Act.
THE BROWN-BROCKMEYER CO . 1305
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Brown-Brockmeyer Co.,
its officers, agents, successors, and assigns shall:
1. Cease and 'desist from :
(a) Dominating or interfering with the administration of the
B-Line Employees Association, or with the formation or adminis-
tration of any other labor organization of its employees, and from
contributing support to said B-Line Employees Association or to any ' ,
other labor organization of its employees;'
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies 'of the Act :
(a) Withhold all recognition from the B-Line Employees Asso-
ciation as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, and completely disestablish the B-Line Employees Asso-
ciation as such representative;
(b) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days from
the date of 'posting, notices to its employees stating (1) that the re-
spondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) and (b) of this Order, and (2)
that the respondent will take the affirmative action set forth in para-
graph 2 (a) of this Order;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of the receipt of this Order, what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, insofar
as it alleges that the respondent engaged in unfair labor practices,
within the meaning of Section 8,(3) of the Act, be, and it hereby is,
,dismissed. `
INTERMEDIATE REPORT
Mr. Thomas E. Shroyer, for the Board.
Mr. Carroll Sprigg, of Dayton, Ohio, for the respondent.
Mr. K. M Kirkendall, of Dayton, Ohio, for the C..I O.
Mr. Irvin Carl Delscamp, of Dayton, Ohio, for B-Line.
_1306 DECISION 'S OF N'ATIONIAL' LABOR RELATFO 'N!S BOARD
STATFJMENI Or THE CASE
Upon a second amended charge duly filed on August 21, 1942, by United Elec-
trical, Radio & Machine Workers of America , C. I 0., affiliated with the Congress
of Industrial Organizations , herein called the C. I. 0, the National Labor Rela-
:tions Board , herein called the Board , by the Regional Director for the Ninth
Region ( Cincinnati , Ohio), issued its complaint dated September 23, 1942, against
The Brown-Brookmeyer Co., herein called the respondent , alleging that the re-
spondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 ( 1), (2), and (3) and Section 2 (6) and
( 7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act.
Copies of the complaint , accompanied by notices of hearing , were duly served upon
the respondent , the C. I 0, and B-Line Employees Association , herein called
B-Line On September 29, B-Line made application to intervene in this proceeding
which application was granted by the Regional Director on October 2, 1942.
With respect to the unfair labor practices , the complaint alleged in substance
that: ( 1) on or about August 7, 1942 , the respondent discharged Edith Rowland
because of her membership in and activities on behalf of the C . I. 0 ; (2) in about
November 1940 the respondent . initiated , sponsored , formed, and promoted, and
from said date respondent has assisted , dominated , and contributed to the sup-
port of and interfered with the administration of B-Line; ( 3) on August 20, 1942,
the respondent locked out its employees in violation of Section 8 (3) of the Act;
and (4 ) since October 1940 the respondent has interfered with, restrained, and,
coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act by various enumerated acts.
On September 29 the respondent filed its answer admitting certain allegations
of the complaint and denying the commission of any unfair labor practices. .
About September 29, 1942, B-Line answered said complaint denying that respond-
ent had dominated , interfered with, or supported it.
Pursuant to notice , a hearing was held from October 19 to October 30, 1942,
at Dayton , Ohio, before the undersigned , the Trial Examiner duly designated
by the Acting Chief Trial Examiner . The Board , the respondent , the C. I. 0.,
and B -Line were represented by counsel and actively 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 . During the
hearing B -Line renewed a motion made previously to the Regional Director that
the instant proceedings be consolidated for the purposes of the hearing with
Case No. IX-R-742, in which a petition for investigation and certification was
filed by B -Line on about May 2, 1942 This motion was denied by the under-
signed. After all parties had rested, counsel for respondent moved to dismiss
those allegations of the , complaint averring that the respondent had violated
Sections 8 (1), (2), and ( 3) of the Act. The undersigned reserved ruling
thereon. At the same time counsel for B-Line moved to dismiss the complaint
insofar as it alleged a violation of Section 8 (2) of the Act. Ruling was reserved.
These motions are now denied in all respects except as otherwise indicated here-
inafter. At the conclusion of the hearing the parties were afforded an oppor-
tunity to present oral argument but no such argument was made Briefs have
been received by the undersigned from the respondent and the Board.
On the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
e
THE 'BROWN-BROCKMEYER co. 1307
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation with its principal office and place of
business at Dayton, Ohio. It is engaged in the manufacture and sale of elec-
trical motors, grinders, and buffers. The respondent has caused over 50 percent
of its principal raw materials consisting of cast iron, steel, and copper used in
the manufacture of its products, to be delivered and transported in interstate
commerce to its place of business at Dayton, Ohio, from and through States of the
United States other than the State of Ohio; and has caused approximately 75
percent of its finished products to be sold and ultimately transported in inter-
state commerce to States of the United States other than the State of Ohio' f "Om
its plant at Dayton, Ohio. During the past year the value of the respondent's raw
materials exceeded $750,000 and its annual sales exceeded $1,750,000 in value.
II. THE ORGANIZATIONS INVOLVED
United Electrical. Radio & Machine Workers of America, C. I. 0., is a labor
organization affiliated with the Congress of Industrial Organizations admitting
to membership employees of the respondent.
B-Line Employees Association is an unaffiliated labor organization admitting to
membership only employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and administration of
B-Line, and assistance thereto; interference, restraint, and coercion
1 Formation of,B-Line
In 1934 a union affiliated with the American Federation of Labor attempted
to organize.the employees of the respondent's plant in Dayton, Ohio, but did
not succeed in securing a bargaining contract.
In September or October 1940 the C. I. O. began a drive to organize the em-
ployees of the respondent. The respondent was soon aware of the campaign
because of bulletins which were distributed by the C. I. O. outside the gate of
the plant and by rumors in the plant. On November 4 the C. I. O. wrote to
the respondent claiming to represent a majority of the employees.
On November 12 the C. I. O. again wrote to the respondent complaining that
the respondent had discriminatorily discharged Buie Steele and five other of
its members. On November 15 the respondent answered, denying the dis-
criminatory character of the discharges and stating in regard to Steele that he
bad been laid off temporarily because of complaints received from other oper-
ators that he wasted too much time but that he would be reinstated. On
December 9, 1940, Steele was reinstated. Buie Steele was one of the leaders
of the C I. O. and its steward in the punch press department.
Following the letter of November 12, 1940, from the C. I. O. to the respond-
ent, some of the employees began talking about forming an independent union.
Employees Harry Gebhart and Dewey Wombold discussed such a union while
riding to and from the factory. Prior to November 28 the first step toward the
formation of such a union was taken by 10 or-15 persons who gathered at the
home of William Lawson. 'The latter, a group leader of the polishing room,
had supervision over the work of five employees.
•
1308 DEOISION'S OF NATIONAL LABOR RLLATIO'1NTIS BOARD
On or about November 28, 1940,' William Lawson placed a bulletin on a post
in the -plant close to the desk of Steffen S. Brown? The bulletin announced
that the B-Line would hold a meeting at 4: 30 p. m. at the Community House on
Coventry Road to elect a shop committee and to adopt a charter and bylaws for
the organization. A similar notice was posted on the respondent's bulletin
board. Foreman Thomas Baldasare found another one upon his desk in the
plant. Lawson acknowledged at the hearing that he wrote out one notice
and also passed out similar notices in the plant to the employees.' Lawson
was unable to recall when and where these notices were prepared but knew
that a number of them had been written and passed out to employees in the
plant.
On the afternoon on which the B-Line was to hold its meeting at Coventry
Road some of the employees in departments which regularly worked until 5
p. m. stopped work at 4: 30 p. m. and left the plant with those employees whose
work had ended at 4: 30. It is admitted that soon after 4: 30 the respondent
through its foremen and its superintendent sent the remainder of the em-
ployees home and that work ceased for the day.
Leroy Christ, a C. I. O. member who is no longer employed by the respondent,
testified that about 4 p. m. Baldasare, his foreman, told him that the plant was
going to close down that day at 4: 30 p. in. for the meeting at Coventry Road.
Baldasare, who was no longer working for the respondent, testified that-lie
saw the notice of the B-Line meeting on his desk ; that he told no one' about
the meeting ; and that, after a large number of employees in his department
had left work at 4: 30,, he told the remaining employees that they would have
to go home because the other employees had "gone home." Baldasare was
unable to explain why he informed the remaining employees that the others had
"gone home': after having seen the notice of the B-Line meeting. He ac-
knowledged that if Christ had work to complete as Christ testified, -Christ
could have continued to work even .in the absence of the other employees but
contended that this work would not have done the respondent "any good." The ,
undersigned credits the whole of Christ's testimony.
William Midlam testified 'that, he went to the B-Line meeting after Fred
Sheeley, his foreman, informed him that Brown, Jr., thought that Midlam
"ought to go out to see what it-is all about any way." Sheeley 'testified that
Midlam's testimony was "in part true" but that he did not tell Midlam to go to
the B-Line meeting because he did not know of the meeting until after the 4: 30
whistle blew. Midlam testified further that he and two others returned to
work after the meeting but this part of Midlam's testimony is inconsistent with
his time card which disclosed that on November 28, 1940, Midlam did not
return to the plant after he originally left at 4: 50 p. m. However, the exact,
date of this meeting is not established by the record. The undersigned credits
the testimony of Midlam.
On the afternoon when the notices were posted the employees held a meet-
ing in the Community House on Coventry Road which is located about 2 miles
from the plant. The hall rental of $2 was paid by Dewey Wombold. Among
'At the bearing none of the witnesses were able to testify definitely as to this date nor
was the date definitely, established by any written document
2 Steffen S Brown, son of the respondent's president and treasurer, Steffen A Brown, was
plant superintendent during all of the period under discussion here until March 1942 when
he became respondent ' s vice president and W R Appleman assumed the duties of plant
superintendent. Hereafter, Steffen S. Brown is referred to as Brown, Jr, and Steffen A
Brown as Brown, Sr.
3 Under the circumstances Lawson 's testimony that he did not post any notices is not
credited.
THE BROWN-BROCKMEYER Co. 1309
others present at this meeting were William Lawson, Sadie Ehrstine , Mary
Ryan, and Arnold Collins. The testimony regarding the meeting was vague.
The attendance at the meeting was estimated by various witnesses as anywhere
from 19 to 200 persons . The witnesses were equally vague as to the events of
,the meeting . They did agree that nothing was definitely decided except that
the next meeting would be held at the home of Dewey Wombold.'
The next meeting of B-Line was held either one or two nights later . Part of
the 10 or 15 employees who attended arrived at Wombold 's home. At the re-
quest of Sadie Ehrstine these persons later went to the Pythian Castle in down
town Dayton where Sadie Ehrstine had arranged for two officials of the inde-
pendent union at the National Cash Register Co., a firm in Dayton, Ohio, to
talk to the group about the formation of a union such as they proposed.
Ehrstine suggested the employment of Attorney Irvin C. Delscamp who had
assisted in the formation of the union at the National Cash Register Co. After
some talk about bylaws and the constitution the meeting ' adjourned . Arnold
Collins was among those present. I
,
On or ,about December 2, 1940, a meeting was held at Gebhart's home. At-
torney Delscamp appeared . Collins, Ehrstine , and Ryan were also present.'
Delseamp produced a constitution and bylaws for the B-Line which were
adopted by the eight persons present. Officials were elected . Delscamp was
authorized to have authorization cards, , membership cards, and cards re-
nouncing membership in the C. I. 0. printed.
Thereafter Delscamp had the various cards printed and distributed to the
B-Line members who then began soliciting other employees to join the B-Line.
Lawson actively participated in this solicitation . Although a great deal of
this was accomplished while the employees were riding to and from the plant,
some of it was done on company time and property . However , the - C. I.-0.
was doing the same thing.
Elias Stout testified that about Christmas time of 1940 , Brown, Jr., said to
him : "You signed a C . I. 0. card . . . Why not sign the B-Line card? . . .
Maybe it would do you some good ." Brown, Jr., denied making this statement
and based his denial on the contention that he did not know that Stout was a
member of the C. I. 0. Stout testified without contradiction that he had worn
a' C. I. 0. button before the time of this incident . In the light of, the entire
situation the undersigned credits Stout's testimony.
On December 14, 1940, about 6 weeks after the C. I. 0. had claimed that it
represented a majority of the respondent 's employees , Delscamp by, letter to
the respondent requested recognition of the B -Line and offered to allow the
respondent to check its signed cards against pay roll records in order to prove
the claim of majority . On January 14, 1941 , following a number of letters
sent to the Regional Office of the Board asking advice, the respondent did
check the B-Line cards against the respondent ' s pay roll. Recognition was not
granted to the B-Line . Pursuant to an agreement entered into by the C. I. 0.,
B-Line and the respondent , a consent election under the auspices of the Board
was held on March 4, 1941. This election resulted in 111 votes for the C. I. 0.,
78 for the B-Line and 16 for neither union. -
As a result of this election, the respondent recognized the C. I. 0. as the
.exclusive representative of its employees, bargained with the C . I. 0, and on
June 5 , 1941, executed a working agreement with the C. I. 0. As a further
result of the election , the B-Line discontinued holding meetings , collecting dues,
or in any other way functioning as a labor organization For a period of over
a year from the date of the election the activities of the B -Line were negligible.
1310 DEC'ISJO!N'S OF NATIONAL LABOR RELATIONS BOARD
The alleged supervisory status of William Lawson, Sadie Ehrstine, Arnold
Collins, and Mary Ryan is in dispute. The respondent and B-Line denied that
they were supervisors and relied strongly upon the fact that the C L. 0., agreed
that all of them were eligible to vote in the consent elections of March 4, 1941,
and the one scheduled for August 20, 1942.
In the machine shop, where some 80 men were employed, Lawson was the group
leader of the 5 men in the polishing room thereof. Lawson performed manual
labor. 'Lawson was responsible for seeing that the work of the employees in the
polishing room was clone as the' respondent desired, for laying out the work
for the other employees, for instructing new employees and for correcting the
men' when they *made mistakes. Lawson had authority to recommend to his
foremen the employment or discharge of employees. Actually he had recom-
mended only one roan for employment.
In'the winding room where a foreman supervised the work of 75 to 100 women
employees , there were 2 group leaders of whom Elirstine was the group leader
of the stator line. These group leaders assisted the foremen in maintaining the
production schedule , in breaking up production "bottle necks" and in instructing
the new employees. Sadie Ehrstine was paid on an hourly wage while the other
production employees on that line were paid piece work rates. Ehrstine testified
at the hearing that she resigned from the B -Line about one month after its
formation 4 because she felt that the C. I 0. girls in the line would feel that they
would be discriminated against if she remained a member of the B-Line`
Collins had the duty to "set up" the-12 Potter and Johnson machines in the
plant and to see that the work turned out by his 6 helpers on these machines
was correctly done. His foreman acknowledged that Collins was "in a sense"
the group leader of these 6 employees.
Mary Ryan was the "boss coil winder" to-whom Foreman Hanley occasionally
gave certain extra responsibilities to straighten out production troubles on the
line, but otherwise she had no supervisory duties Admittedly none of these
-four employees had authority to hire or discharge.
Although Lawson, Ehrstine , Collins, and Ryan voted in the March 4, 1941, con-
sent election, the agreement for that election provided that only supervisors
having the authority to hire and fire were ineligible to vote therein . In view of
all of the evidence, therefore, the undersigned finds that, at all times material
herein, Lawson ° and Ehrstine' were invested by the respondent with super-
visory authority and thereby represented the management in their respective
departments. The undersigned further finds that although Mary Ryan occa-
sionally had extra responsibilities and Arnold Collins had the duties aforede-
scribed, they were not supervisory employees. -
2. The revival of the B-Line
I As heretofore found, the B,Line remained dormant from the time of the
consent election until late in the month of April 1942.
For the year following the execution of the contract dated June 5, 1941,
with the C. I. 0. the respondent operated in conformity with that agreement.
Ehrstine first testified that she became a group leader about a year before the hearing but
she later testified that "about the time" she resigned from B -Line, she had become a group
leader Foreman Hanley, who supervised the department in which Ehrstine worked, made
no distinctions as to time when he testified i egarding Ehi store's duties
5 However , B-Line records showed that Ehrstine resumed hen dues payments about May
1942.
9 This finding is made despite the fact that Lawson received the same pay as those em-
ployees except one whose work he supervised
Y In May 1942 , after Foreman Flanley left respondent's employ and before Foreman Stull
assumed the foremanship , Ehrstine ran the department.
THE BROWN -BROCKMETER CO. 1311
The contract provided for a wage increase of 5 cents per hour for all em-
ployees. By its terms the contract was to remain in existence for one year with
an automatic renewal clause in the event that neither party gave notice of a
request to change said contract 30 days prior to its termination date. Among
other provisions the contract provided that a "basic eight (8) hour day and
basic forty (40) hour week from Monday through Friday !Delusive" -should be
estalilished ; that work on Saturday in excess of 40 hours per week and work
in excess of 8 hours per day should be paid for at the rate of time and one-half,
and that work on certain named holidays, including New Year's Day, should
be paid for at the rate of double time. The only difference in terms and con-
ditions of employment between the above referred to contract provisions and the
past practices of the respondent was the 5 cent per hour wage increase At the
hearing the B-Line stressed the fact that the only benefit secured by the C. I. 0.
contract was the wage increase.
During the year 1940 the respondent's employees worked a considerable amount
of overtime within the limits set by the Ohio State Law which the parties agreed
made it illegal for women employees to work in excess of 8 hours in any one
day or 45 hours in any one week. The uncontradicted testimony of Collins and
others showed that, soon after the execution of the agreement with C. I. 0, the
respondent reduced the working hours of the men from 50 to 40 hours per week
and those of the women from 45 to 40 hours per week, thereby eliminating over-
time pay. Brown, Jr, acknowledged that the respondent worked less overtime
in 1941 than in 1940 - The employees in general were dissatisfied over this
reduction.
On December 24, 1941, the respondent wrote to the Department of Industrial
Relations of the State of Ohio, hereinafter referred to as the Department, mak-
ing application for permission to work its women employees more than the
statutory maximum of 45 hours per week.
Sometime thereafter, the respondent received form letters dated December 24,
1941, from the Army and Navy requesting all employers who were engaged on
war orders to work on New Year's Day. After conducting a survey- through
having "personally talked with a number of the employees," Brown, Jr., on De-
cember 30 requested the C I. 0 to work New Year's Day on condition that it
waive the contract provision for double time for such work and added as an
inducement for such waiver, that the'plant would also work Saturday, January
3 at- the rate of time and one-half. The C. I 0. refused. The plant did not
operate on New Year's Day. According to the testimony of Brown, Jr., this
caused dissatisfaction with-the C I. 0. among the employees.
About Christmas time 1941, employee Robert Luckey asked Brown, Jr, about
the possibility of his securing some overtime work. Brown, Jr, answered this
request by saying "as long as we have this labor dispute we can't do much
a bout it" Luckey testified that prior to the execution of the C. I. 0 contract
he had often worked 11 or 12 hours per day, but that soon after the execution
thereof he was restricted to 40 hours of work per week which was,not enough
to live on
On January 3, 1942, the Department granted the respondent "a non-applica-
tion" of'the provisions of the statute limiting the hours of work for women
employees for a period up to February 28, 1942. Thereafter, for a time the
respondent availed itself of this permission to work the employees overtime.
In February the C. I. 0 filed a grievance with the respondent about its failure
to comply with the terms of the statute.
A
t
1312 DECISIONS OF NATIONAL LABOR RELATIO'N1SI BOARD
,On February 20, 1942, prior to the expiration of the "non-application" of the
statute, the respondent wrote the Department requesting an extension thereof.
This letter was in part as follows : -
At the time of making our request, on December 24, 1941, we had intended
working our women 9 hours a day and not to exceed 6 days per week, but
a great deal of objection was raised by a shop committee representing the
United Electrical, Radio & Machine Workers of America Union, who have
bargaining rights in our Shop. When this objection was voiced, we dis-
continued the overtime and we made a careful (sic) survey of the majority
of our female workers and of all the employees contacted, there was just
one employee who objected to overtime. We understand that this employee
appeared at a hearing which you recently held at Columbus and voiced
protest to working female help overtime. ,
From the survey which we made of our female help, they have all indi-
Gated, with this one exception, a desire to help in the war effort by working
some overtime and to support this statement, we shall be glad to have you
send an.inspector if you deem it advisable, to check this statement.
The employee referred to in this letter as the one who objected to the over-
time work and whom the respondent understood to have appeared at a "recently"
held hearing in Columbus was Pearl James, then chief steward at the respond-
ent's plant. She- bad appeared as a C. I. O. representative at a conference in
Columbus in which a general discussion of the problem of overtime work for
women was had. The uncontradicted testimony shows that this conference
had nothing to, do with the respondent's, application for permission to work
overtime and that at that'time James had no'knowledge that such request had
been, made by the respondent. The date of this conference was not definitely
established in the record. , James testified that it was held prior to December
7, 1941. The respondent produced no evidence to the contrary.
On February 25, 1942, according to the testimony of employee Albert Schuetz,
Brown, Sr., told Schuetz and enyployee James Ray, both of whom had come to
speak, with him concerning difficulties in connection with the work they were per-
forming : "Well, that is the,goddam union.for you. You wanted it and you got
it. Now you got what you wanted . . . Before the union came in there we
made money and the employees made money . .-. But now neither of us are
making any." Brown, Sr, testified that "The conversation was not like that.
.It would be ridiculous for me,to talk to there that way and,i,didn't talk to them
that way." Since as"hereinafter found the respondent publicized the fact that
the C. I: O. was responsible for the lack of overtime work in the plant *it is
probable that Brown, Sr.,, made the statements substantially as attributed to
him by Schuetz, and the undersigned so finds.
The Department answered the respondent's. request, of February 20 by a let-
ter dated March 4, 1942, stating that, the purpose of such nouapplication grants
was "to aid management in its responsibility of arranging their personnel in
a manner to relieve unfavorable situations and, where it is necessary, to ein-
ploy additional help," and it denied the-request for an,-extension because of
its belief that "the period granted has amply served its purpose." Thereafter
the respondent returned to either a 40 or 45-hour week.
On.April 20, 1942, Tom Aveyard and Maiy Ryan called a meeting of 15 per-
sons at Ryan's home. As the office of the president of the B-Line had become
vacant because the person elected to that office had left the respondent's emI-
ploy, the group elected, Collins its president. B-Line thereupon became active
again in soliciting members and in distributing, bulletins to the employees. Col-
lens paid for the printing of these bulletins with his own money as no dues had
I
I THE BROWN-BROCKMETER co. 1313
been collected after the election of March 4, 1941. Some time thereafter, 8
B-Line members, including Collins and Ryan, met at the home of William Law-
son where they "elected" departmental representatives for the, B-Line. On
April 28, Collins, as president of the B-Line wrote to the respondent claim-
ing to represent 190 out of the respondent's 360 employees and requesting rec:_
ognition. The respondent answered on May 2, suggesting that the B-Line file
a. petition for investigation and certification with the Board. On about May
2, the B-Line filed such a petition. ,
About a month before the expiration date of the contract on June 55 1942, the
C. I. O. gave notice to the respondent that it desired to negotiate changes in said
contract. Thereafter several meetings were held between the respondent and
the C. I. O. for this purpose. The respondent contended that it intended to execute
any contract agreed upon with the C. I O. and acknowledged that it failed to
notify the C. I. 0 of the B-Line claim of majority representation.
Collins testified that at this time it was "easy" to secure members for the
B-Line because of the dissatisfaction of the employees over the reduction of hours
following the execution of the C.'I O. contract. Luckey, who was also dissatisfied
over the lack of overtime work, induced 60 or 70 employees to sign applications
for membership in the B-Line. He testified that he signed a few of these persons
on company time and property when the foreman could not see him. Although
Luckey denied that his conversation with Brown, Jr., as described above, induced
his activity on behalf of the B-Line, he acknowledged that he became active for
the B-Line in order to get the C. I. O. "out" as he had "the understanding" that
the C.'I. O. was against overtime
. In May 1942 William Midlam, a former B-Line member who joined the C. I. O.
after the election, inquired of Brown, Jr., about overtime. Brown, Jr., answered
that he understood that the B-Line was pretty strong; that they were out for a
48-hour week and that be thought the shop should be working 48 hours a week.
Although Brown, Jr., denied having this conversation with Midlam, it is clear
from the letter of the respondent to B-Line elated September 15, 1942, referred
to hereinafter, that this statement of Brown, Jr, was in'fact the position of the
respondent. The undersigned viewed the testimony of Brown, Jr., with'suspicion
because as a witness he denied talking to any employee except Luckey about over-
time despite the statement in the letter of December 30 to the C. I O. over his
signature that he had "personally talked with a number of them." The under-
signed therefore credits the testimony of Midlam in this instance.
In May 1942 Brown, Jr., accused C I 0 Steward Buie Steele of "chiseling"
on the respondent because of the number of hours at day work rates which he
had charged to the company. At this time Steele was being paid by the piece.
After Steele denied this charge, Brown, Jr., according to Steele's testimony,
said: "If you want to quit, why don't you get a job some other place . . . I
suppose you want me to fire you . . . That's what you want, so you can run
down to the goddam C. I. O. and have them put you back to work." Steele
further testified that after a few more words, Steelereturned to work on Brown,
Jr.'s instructions. Steele impressed the undersigned as an honest and forth-
right witness. Under all the circumstances, the, undersigned credits Steele's
testimony.'
In July 1942 Collins prepared a petition so worded as to be executed by
those who "were in sympathy with the B-Line Employees Association for work-
I
s About a week before this case was originally scheduled for hearing in October 1942 the
respondent offered Steele the foremanship of his department if he would secure the written
approval of the C I. 0. to the promotion . The C. I 0. refused and Steele was not
promoted.
1314 'DE CISIO'N 'S OF N'ATI'ONAL LABOR RELAT'IO\'S BOARD
ing women 'over forty hours a week" He gave these petitions to B-Line em-
ployees in order that they might secure signatures thereon. He himself had
employees sign this petition "in the factory" during the noon hour "mostly."
He also visited at least one of the employees at her home in order to secure her
signature. -
On July 2 the C. I 0. and the'respondent met for the last time in their-
efforts to arrive at a contract. On this same day the respondent received a
letter from Attorney Delscamp, who had been reemployed by the B-Line, object-
ing to the respondent's negotiations with the C. I. 0 and suggesting, that the
parties agree to another consent election in order to determine which organiza-
tion represented the majority of the employees Without informing C I 0.
of the receipt of this letter, the respondent arranged another meeting with the
C. I. 0. for July 7. For some reason not made clear in the record the C. I. 0.
cancelled this meeting
As'will be more fully discussed hereinafter, the respondent, the C I 00, and
the B-Line on August 3, 1942, agreed upon a consent election- to be held on
August 20, 1942. On August 7 the respondent discharged Edith Rowland, a
member of the C I 0, and the C I. 0 filed charges that the discharge was
caused by her union activities. The consent election was indefinitely postponed
by order of the Regional Director of the Board dated August 18 There was a
stoppage of work on August 20,lasting less than a half hour to protest this action.
On September 8 the B-Line sent its petition protesting the 45-hour law to the
Department This petition contained about 200 signatures according to Collins.
On September 12 the B-Line, through Collins, wrote the respondent advising it
that the B-Line had forwarded this petition to the Department and asking the
respondent's cooperation On September 15, 1942, the respondent answered by
letter in part as follows :
This will acknowledge receipt of your letter of the 12th in which you advise
that you have contacted the Department of Industrial Relations at Colum-
bus, Ohio, and in which you also make the request that our female em-,
ployees be permitted to work in excess of forty-five hours, as covered by law.
On a previous occasion we were granted this permit but owing to opposi-
tion by the C. I 0. group, this order was rescinded and at the present time
we are only allowed to work women forty-five hours per week.
However, we are contacting the Department of Industrial Relations once
more to see if they will again permit us to work our female help in excess
of forty-five hours per week.
On September 29 the Department wrote the respondent in part as follows:
Supplementing our former advice to you and upon further consideration of
conditions existing in your plant with reference to your requestfor a reliixa-
tion of the Ohio Labor Law, please be advised that it is not within the
province of this department to further labor relations between labor organi-
zations and management and therefore impossible for this department to
act until such time as reasonable relationship is established; nor is it within
the province of this department to waive the law in favor of individual
conveniences or because of restrictive specifications for personnel that might
hamper additional placements. We suggest that you use the facilities of the
United States Employment Service to the fullest extent.
Although the B-Line to all intents and purposes ceased to exist after its
defeat in the election of March 4, 1941, and while the respondent bargained
with the C I 0. thereafter, the record makes it clear that the, respondent did
not end its campaign against the C I. 0 Following the execution of the C I. 0.
THE BROWN-BROC'KMEYER CO. 1315
contract , the respondent eliminated overtime work. The employees did not
miss the -significance of the timing of this change . The refusal of Brown, Jr.,
'-to give Luckey any overtime work on the grounds of a non -existent "labor dis- -
pute" was intended • to, and did , even more clearly place the onus for this
change on the C I O. At the hearing the respondent stressed the dissatisfac-
tion ' of the employees over the refusal of the C. I. O . to work on New Year's
Day. It is significant that prior to consulting the C. I. O. on the question of
working that' day, Brown , Jr., canvassed individual employees as to their at- '
titude on the question and then conditioned his request that the C I O. work
on New Year ' s- upon a waiver of the contract provisions by the C. I. O. This
condition meant that , the C. I. O. had either to abrogate its contract or else
accept the blame for the failure to work that day. It was upon this respondent-
%insplred issue of overtime that B-Line was revived and its membership drive
made `easy " ' The statements of Brown, Jr ., to the effect that he thought the
plant ought to be working the 48 hours a week the B-Line favored and the
July petition for those " in sympathy with the B -Line Employees Association
for working women over forty hours a week " brought respondent 's campaign to_
its culmination just before the anticipated election of August 20 In its letter
of September 15, 1942 , the respondent put its position , that the C. I O. was
responsible for the loss of overtime, in writing for the benefit of B-Line.
3. The lock-out of August 20, 1942
, As heretofore found, B-Line on April 28, 1942, again demanded exclusive
recognition from the respondent. By May 5; 1942, the C._ I. O. had notified the
respondent that it desired to negotiate some revisions in the contract expiring
on June 5, 1942 The respondent and the C. I. O. held several meetings for
this purpose On or about May 2, the B-Line petitioned the Board for in-
vestigation and certification. Soon thereafter the C. I. O. filed charges with
the, Board that the B-Line was company dominated. On June 19, B-Line by
-letter to the respondent threatened to ask the assistance of the War Labor
Board to secure the recognition it demanded. On July 2, at a meeting with
the C. I. O , the respondent objected to the maintenance of membership clause
which the C. I O. had proposed, claiming that this clause in reality amounted
to a closed shop provision. On July 2, Delscamp wrote the,respondent on be-
half of the B-Line objecting to the negotiations with the C. I. O. and suggesting
that another consent election be held to determine the.bargaining agent. A
further meeting between the C. I. O. and the respondent scheduled for July 7 was
called off by the C. I. O. No further bargaining meetings have been held be-
tween the parties. -
At the suggestion of a Board's field examiner the C. I. O. -withdrew its 8
(2) charges against the B-Line and on August 3 entered into an agreement
for a consent election with the respondent and the B-Line. This election was
to be held on August 20.
On August 6, employee Edith Rowland, who was a C. I O. member, attended
a meeting of the B-Line at the suggestion of the C. I. O. On August 7, Rowland
was discharged or laid off. About August 9, the C. I. O. filed charges that
this' discharge was discriminatory. As, found hereafter, due to , a lack of
evidence showing that the respondent knew, that Rowland was a C. I. O. mem-
ber, this charge must be dismissed. When the Board's field examiner first
suggested the reinstatement of Rowland, the respondent. indicated that it would
be'difficult to do so because of a report based upon an investigation made after
August 7 purporting to reflect upon her character. At this time the field
examiner also learned that the respondent had divulged the contents, of this
531647-43--vdl. 49-84
1316 DEoISION'S 'OF NATI'ONIAL LABOR REtLAT'ION'S BOARD
report 'to Arnold Collins. On August 13, the respondent, agreed to reinstate
Rowland 'if she would accept work on- the night shift. 'Rowland originally
accepted the offer but later rejected it because of the night work.
Following an unsuccessful attempt to speak to -Brown Sr. by, phone on
August 15, the Regional Director of the Board talked to him on August -17.
On direct examination Brown, Sr. described'the conversation of the Regional
,Director as follows : "`He [Regional Director] was very emphatic in his.state- '
anent ; either get her [Rowland], on or there wouldn't be any election. There
were no bones about that." ° The Regional Director informed him that Board
rules prevented him from holding an election when charges of unfair labor
practices were outstanding and insisted, that the respondent meet with him
in an effort to settle this matter. The respondent refused to confer with the
Regional Director without its attorney who was then on a vacation and was
notexpected to return until several days after August 20.
By order received by the respondent and B-Line through the mail, on August
19 the Regional Director called off the election. On- the evening of August
18, the C. I O. circulated a bulletin saying that the consent election had been
called off.
Delscamp at 1: 36 p. in. August 19, telegraphed the Regional' Director as
follows :
B-LINE EMPLOYEES ASSOCIATION WALK OUT AUGUST 20, 1942
AT 4:30 P. M. 'AS RESULT OF INDEFINITE POSTPONEMENT OF
ELECTION BY YOUR ORDER
At 3: 37 p. m. the same day Delscamp sent a similar wire to the respondent{
with the addition of a threat that the B-Line would "remain out until the
election is held."
'At, 6 : 47 p. in. that day respondent wired the Regional Director the C. I. O:
and B-Line in part as follows: '
COMPANY,FEELS ELECTION MUST BE HELD AS PER CONSENT.
AGREEMENT TO PREVENT WALK OUT STOP RESPECTFULLY RE-
QUEST RECONSIDERATION POSTPONEMENT TO PREVENT INTER-
-RUPTION OF PRODUCTION ON URGENT AIR CORPS NAVY AND
ARMY CONTRACTS STOP AS INDICATED IN JUDGE SPRIGGS TELE-
GRAM OF 17TH WILL BE GLAD TO ATTEND ANY HEARINGS WITH
COUNSEL DIRECTLY HE RETURNS NEXT MONDAY
s , S
Further telegrams of,similar, content were exchanged by the parties on
August 20. In two of the telegrams to the respondent the Regional Director
added a personal message to the B-Line exhorting, them, for patriotic reasons
not to strike and authorizing the respondent to post said telegrams. Neither
telegram was posted. , , • „
On the evening of August 19, Collins conferred with Delscamp. They deter-
mined to strike and partially prepared a B-Line bulletin to that effect. Later
that evening Collins met with five, other employees of the respondent who agreed
upon the strike and, assisted in completing the aforementioned bulletin. The -
time for the strike,was set for 4:00 p in. Collins testified that this time was
selected because the employees did not want to lose too much money.
° On cross-examination by the Board after a question had arisen as to when the respondent
received notice that the election would be called off, Brown, 'Sr modified his testimony' by
saying that he did not remember that the Regional. Director "specifically" said that the'
election would be called off. The undersigned finds,that Brown's original version of this
conversation was the correct one.
. i
THE BROWN-BRIOFCKMEYER C'O. 1317
At 12:30 p. m. August 20, the respondent's' chief guard received permission
from Brown, Jr. to call an extra guard to the plant at once in preparation
for the anticipated strike that afternoon. The Browns and Brookmeyer con-
ferred with Collins for two or three hours in the respondent's office that
afternoon. According to the testimony, Collins stated he would find it difficult
to call off the strike because there were some radicals among the members
of B-Line who were determined to strike Prior to the conclusion of this
conference the respondent handed Collins a letter signed by Brown, Sr urging
that the B-Line remain at work until respondent could meet with the Regional
Director on Tuesday, August 25, together with a copy of a telegram received
from the Regional Director. Except for this conference with Collins and a
telephone call to Delscamp the respondent made no other effort to prevent the
strike.
About 3:45 p. in. the plant whistle blew. Plant Superintendent Appleman
was standing within ten or twelve feet of the whistle when it blew. The testi-
mony indicated that the whistle blew for a period of about two minutes.
Appleman testified that the whistle was operated by an arm, that this arm
had been fastened down by a wire thus causing it to blow steadily, and that
it was stopped by an electrician who cut the wire at Appleman's request. The
respondent made no investigation attempting to discover who was responsible
for wiring the whistle 10
When the whistle blew adherents of the B-Line stopped work and left the plant.
Stella Mae Williams, treasurer 'of the B-Line, patted Appleman on the shoulder as
she passed him on-her way out of the plant with the remark "Goodbye now".
At about this time the respondent employed approximately 400 employees
including the night shift of 64 employees. About 70 employees stopped work in
the machine shop leaving only 4 or 5 employees at work. Appleman estimated
that about 50 percent of the women employed in the winding room also left their
work a Only a few employees left the assembly and sub-assembly, while no
employees left'tlie shipping room, the core and shaft or punch press departments.
About 4. 00 p m. the foremen of the various departments and Brown, Jr. told
those employees who had remained except those in the shipping department that
they should go home. Brown instiucted one foreman to close his department
because it could not work with a half shift. Although some of the employees
protested to the foreman or to Brown, Jr. that they could continue to work, they
left the plant. Appleman answered an inquiry as to how long the strike would
last by saying that he thought that the B-Line would return to work the following
morning
At 4:10 p. in that day the respondent-telegraphed the Regional Director as
follows :
REGRET TO ADVISE APPROXIMATELY NINETY PERCENT EMPLOYES
NOW OUT ON STRIKE STOP OPERATIONS STOPPED
After leaving the building the B-Line employees walked a few hundred feet from
the.plant to the edge of the respondent's property where they gathered under a
tree. Collins read them a telegram from the Regional Director. The group then
"agreed" to return to work as usual the following morning. The meeting then
terminated. Brown, Sr testified that approximately 275 employees gathered
lOFeebach who reputedly was responsible for the blowing of the whistle was later made a
foreman.
U B-Line contended that two-thirds of the employees in the winding room walked out
while the C. I. 0. contended that only one-thud of those employees quit work at the time
of the walkout.
1318 DECISIONS OF NATIONAL' LABOUR RELATION'S BOARD
under the tree. This was the highest estimate made by any witness at the hear-
ing. According to other estimates the number was as few as 30 persons In
view of the number of employees who remained in the plant until ordered out by
the respondent the undersigned,finds that Brown, Sr.'s estimate was exaggerated.
When the employees on the evening shift attempted to enter the factory through
the employees' gate, they found the gate closed and were told by the guard that he
had orders not to open the gstte for them. Although the guard testified that he
always opened the gate at 4:15 for the afternoon shift, he acknowledged that on
this occasion he prevented the employees from entering until Foreman Emerick
had inquired through the closed gate of the employees who were waiting outside if
they wanted to go to work and after receiving an affirmative answer told the
guard to let them in. The gate, was opened at 4 :26 p. in It was stipulated that
only thirty-seven of the sixty-four employees on the night shift reported for work.
The plant operated with this reduced shift on the evening of August 20.
The record shows that a certain number of employees went on strike on August
20 at 3: 45 p. m. as a protest against the Regional Director's action in postponing
the election. The highest estimate of the number of employees who went on strike
at 3: 45 p in was a "majority It is also a fact that within 15 minutes of the
walk-out Brown, Jr. and the foremen of the various departments ordered all the
employees except those in the shipping room who had not gone on strike to quit
work and to leave the plant. The Board contends that this action of the respond-
ent constituted a lock-out had that the respondent thereby discriminated against
the C. I. 0 in order to assist the B-Line On the other hand the respondent
contends that it was forced to close,the plant because of the absence of the B-Lune
strikers.
The witnesses for all parties agreed that, although the plant could have oper-
ated in the absence of the B-Line strikers,, such operation would have been lads
efficient and more'costly. Brown, Jr. originally maintained that it was impossible
to operate the plant in the absence of the stickers but later acknowledged that the
plant could have continued operations but at a much greater cost. It is signifi-
cant in connection with Brown .lr.'s testimony that he ordered' employee Renmuller
to quit work even before he had been advised as to the full extent of the walk-out
in Reimuller's department. The witnesses idso agreed that the non-striking
employees could have continued working for the remaining 15 minutes of the shift
on,maternals which had accumulated on their benches" It is further significant -
that the punch press department which because of the variety of its operations
necessarily had-to maintain a stock of completed work on hand and which was
still at full strength after the walk out, was shut down by the respondent along
with the rest of the plant at 4: 00 p. T. Tl e respondent promptly acknowledged
that the B-Line strike was a success.
The whole attitude of the respondent towards the strike of August 20'is signifi-
cant. Even lifter B-Line had threatened to stay,out on strike until the election
was held, the respondent made no preparations for continued operations in the
event the walk-out became an actuality although the plant at this time was doing
100 percent war work. Despite the fact that the Regional Director included
personal messages to the B-Line in telegrams which he sent to the respondent and
authorized the posting of such telegrams, the respondent failed to post them or to
make any effort to persuade the employees to remain at work except to talk to
Collins and to give him one of the Regional Director's telegi airs which Collins
read to the B-Line after its strike became an actuality The attitude of the
respondent was further indicated by its misleading telegram sent to the Regional
12 As materials arrived on the conveyei belt in bunches, it wa, customirv for the euiployees
to have a quantity of mateiial on their benches waiting to be worked upon.
THE- ,BROWN-BEOCKMETER CCO. _ .1
' 1319 , \
Director 10 minutes after the respondent itself had closed the plant implying that
production had been stopped by the strike of 90-percent of the employees and by,
the respondent's refusal to allow the evening shift to enter the plant at the usual
time. The fact that the respondent made no further effort to discover who was
resp6nsible.tor the improper use made of the respondent's whistle leads to the
conclusion that this act was not done wholly without the respondent's approval.
The only possible explanation for the covert aid given to the B-Line in this strike
by the respondent was that it was given in order to create a false impression
among its employees as to the strength of the B-Line. In view of all of the
evidence the undersigned believes and therefore finds that at 4: 00 p in. on August
20, 1942 the respondent locked-out its employees who were unfavorable to the
B-Line in order to discourage membership in the C. I 0 by discriminating in
regard to the tenure of employment of those favorable to it and to give support to
the B-Line.
4. Conclusions
In its answer the B-Line contends that, due to the two consent election agree-
ments entered into V band between the C. I. 0, the B-Line and the respondent,
the C. I O. "is now- estopped from claiming that [B-Line] is a Company domi-
nated organization, or that it was ever dominated from its inception."
The position of the Board is succinctly stated in Matter of Wzckwh e
Brothers: 13
If'the respondent had engaged in further unfair labor practices after the
consent election,.we would disregard the consent election agreement. Any
such agreement obviously contemplates that the employer will not engage, in
any further unfair labor practices. If the respondent's conduct after the
consent election showed a continuity with its conduct prior thereto, we
would consider the whole of the respondent's conduct in determining whether
the respondent had engaged in unfair labor practices with regard to the
Association.
The facts in the instant case indicate that the respondent continued to commit
unfair labor practices following each of the consent election agreements so that
no estoppel' could arise. Therefore, the undersigned will consider all the facts
prior and subsequent to the agreements in making his determination.
The record in the instant case indicates that the respondent demonstrated
,its opposition to the C. I. O. through the acts and statements of the Browns and
of its foremen The formation and the organization of B-Line was due in large
measure to the efforts of William Lawson and Sadie Ehrstine, two supervisory,
employees. Lawson was active in the B-Line formation allowing the-organizing
group\to hold its first meeting at his home and notifyingithe employees of the
first meeting of the B-Line held on or about November 28, 1940 By suggesting
the employment of Attorney Delscamp, Ehrstine was in part responsible for the
form assumed by the B-Line. -
After the consent election of march 4, 1941, the B-Line became dormant.
Following the execution of the contract with the C. I. O. the respondent elim-
inated overtime work in the plant and thus offset -tile five cent increase in wages
secured by the C. I. 0 under its contract with the respondent. The respondent
never explained the reason for its unilateral determination to abandon overtime
work. However, after a C. I. O. steward had stated her opposition to allowing
women to work beyond the Ohio statutory limit,' the respondent made use of her
opposition in order to create the impression that the loss of overtime in its plant
1316 N. L. R. B. 316 and cases there cited.
ti
1320 DECISIONS, OF' NATrONIAL' LABOR, RELATION'S BOARD_
was due to the C.,I. 0. The action-of Brown, Jr. in refusing overtime work to,-
'Employee Luckey because of an alleged "labor dispute", and the respondent's
action in so conditioning its request of the C I. 0. that the employees work on
New Year's Day 1942 as to force the C. I. 0. into refusing to work show a studied
effort to create dissatisfaction with the C. I. 0. among its employees. This
respondent inspired dissatisfaction caused the revival of the B-Line., The en-
dorsement in May 1942 by Brown Jr. of the B-Line demand for a 48-hour week
was clearly intended to assist the B-Line It is noteworthy that promptly
upon the revival of the B-Line both Lawson and Ehrstine again became active
on behalf of the B-Line. Respondent's hostility toward the C. I. 0. was further
emphasized through remarks made by the Browns.
Following the revival of the B-Line the parties again entered into a consent
election agreement on August 3, 1942. When this election was cancelled upon
orders of the Regional Director, the B-Line went on strike to protest the decision.
Again the respondent continued its unfair labor practices by promptly assisting
and endorsing the B-Line protest by locking out those of its employees who had
'failed voluntarily Ito join the B-Line strike. The respondent thus assisted the
B-Line by stopping production despite the' present emergency. On September
-15, 1942, the respondent further assisted' the B-Line by giving it a written state-
ment containing the flat assertion that the C. I. 0. was responsible for the
employees' loss of overtime.' - '
By the activities of its officers, foremen and supervisory employees found
above in Section III A, the respondent dominated and interfered with the for-
mation and administration of -the B-Line and rendered assistance to it thereby
interfering with, restraining, and^coercing.its employees in the exercise of the
rights guaranteed in Section 7 of the Act. By locking out its employees on
August 20, 1942, the respondent discriminated in regard to the tenure of the
employment of its employees in order to discourage membership in the C. I. 0.
and to encourage membership in the B-Line thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act. -
B The discharge of Edith Rowland
On May 27, 1942, the respondent employed Edith Rowland on the evening
shift. On June 29 she was transferred to the day shift to stencil motors and
to aid in 'the assembly of brush rings. At the time this transfer was arranged
Foreman McKinley Terman told Pearl James that he had secured a good work-'
man for this job.
As heretofore found, on August 3, 1942, the B-Line, the C. I. 0., and the
respondent agreed to hold a consent election to determine the representative
of the employees. On August 6, the B-Line held a-meeting. Prior thereto, C I. 0.
Steward James asked Rowland, a member of the C. -1. 0., to attend the B-Line
meeting and report back to her. When Rowland arrived at the meeting Collins
told her that it was a meeting for members only but allowed her to attend after
she told Collins that she "wanted to know what the B-Line had to offer.'."
During the morning of August 7, James saw Arnold Collins go into the
office. Collins denied that'he had gone there to speak to either of the Browns
about Rowland. Although Rowland became a member of the C. I. 0. in the
latter part of July or the first part of August 1942, She did not wear her C. I. 0.
button, but instead had it fastened on the inside of her purse. Sometime in
the morning of August 7, Foreman Patterson received a list of employees who'
were about to complete their three months probationary period with the re
spondent. It is the -respondent's contention that in order to have acquired
THE BROWN-BROCXMETER. CO. 1321
seniority privileges an employee was first required to complete a three months
period of probation." Rowland's name appeared upon the list of employees
who had not as yet completed their probationary period. Shortly after Collins
had gone into the office and about 11 a. m of that day, according to James,
Patterson asked her to confirm Rowland's identity. Patterson denied having
questioned James concerning the identity of Rowland. The evidence discloses
that at the time Rowland was transterred to the day shift Patterson was ill,
and that he returned to work and supervised Rowland's work for a period of
about three weeks. 1ll6reover, James impressed the undersigned as a credible
witness, and, under- all the circumstances the undersigned is convinced and
finds that Patterson questioned James concerning Rowland's identity. While
some of the B-Line* employees suspected that Rowland was a 0. I. 0. member
and Collins was intimate with several of them, there is no evidence in the
record that the respondent had knowledge of Rowland's membership in the
C. I. 0. at the time of her discharge.
About 4 p. in. on August 7, Patterson told Rowland that he had bad news
for her as he was going to have to let her, go. Rowland testified that Patterson
told her that he had too many girls in the department, and that he would have
to let her go because she was the "newest" girl. Patterson testified that Row-
land was not suited for her job, that he had had occasion to reprimand her for poor
workmanship many times, and that at the time of her discharge he told
Roivland she was being laid off because of inefficiency.15 The testimony is
undisputed that after Rowland was informed of the termination of her,em-
ployment, she inquired of Patterson if there were not other work for her to do.
Patterson then suggested that she see Brown, Jr In view of the entire situ-
ation, the undersigned credits the testimony of Rowland with respect to the
reason which Patterson assigned for her discharge.
It is uncontradicted that Rowland had been employed in her department
for a longer period of time than one other girl who was retained.
After Patterson suggested that she see Brown, Jr, Rowland on the day of
her discharge was referred by Brown, Jr., to Foreman Stull. Stull informed
her that there was nothing open, but that he would keep her in mind for any
opening he might have.
On the following day an employee then working for the respondent was
assigned to Rowland's job, and several days thereafter a new employee was
hired to fill the vacancy caused by Rowland's discharge.
About August 10, Lionel, J. Silverman, one of the Board's field) examiners,
in the course of investigating the C. I. 0. charge that the Rowland discharge was
discriminatory, suggested to Brown, Sr. that the respondent reinstate Rowland.
Brown, Sr. indicated that it would be difficult to do so because of information
which lie had received after Rowland's discharge concerning her character.
Brown Sr., stated to Silverman that he feared that this information was
14 The contract entered into between the C I 0 and the respondent on June 5, 1941,
contained such a provision . However, the piovisions of the contract were not in effect at
the time of Rowland 's discharge
15 Rowland testified that she had never been criticized for her work and James , who was in
a position to obseive Rowland's work, testified that she was a good worker. There was no
evidence that Rowland ' s work from the time of het transfer on June 29 to July 13 at which
time Patteison became foreman of the department was unsatisfactory If Rowland's work
had been, as poor as Patterson's testimony indicated, it is unlikely that Patterson would
have retained her until he received on August 7 the list of employees who were about to
complete their probationary period. The undersigned therefore credits the testimony of
Rowland and James in this regard.
1322 DECISIONS OF -N`ATI'ONiAL LABOR RELATION'S BOARD
known to the employees of the factory because the report in which the infor-
mation was contained had been shown to Arnold Collins.-_
On August 11, Stull dictated a letter to Rowland requesting her to report
as he had work for her, and on that day the transcribed letter was handed
.to Rowland who appeared at the respondent's plant.
On August 13 Rowland and Silverman went to the respondent's office for a,
conference in regard to the discharge. During this conference the respondent
offered' Rowland a job on the night shift beginning August 17 agreeing to
transfer her to the day shift as soon as an opening presented itself. Although
she knew that her husband objected to her working at night, Rowland agreed
to take the job. However, about an hour later, after having driven down to
X. I. 0. headquarters," Rowland telephoned to Brown, Sr: and told him that
she would not take the proffered job. On August 13 Brown, Sr dictated a letter
addressed to Rowland confirming the agreement made at the conference to the
effect that she was to report for work on August 17 Although this letter was
transcribed on August 14, it contained no mention of Rowland's telephone call
of the previous day. '
As heretofore found, it was upon the basis of this discharge, charges filed in
regard thereto, and the attendant circumstances that the Regional Director
decided to postpone the election. Although the Regional Director's decision
at that tune was a reasonable one, there is no evidence that the respondent
knew of Rowland's affiliation with the C. I. 0. at the time of her discharge,
notwithstanding the suspicious circumstances surrounding the termination of
Rowland's employment. Accordingly, it will be recommended that the complaint
be dismissed insofar as it alleges that Rowland was discharged because of her
activity or membership in the C. I. 0.'
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
I
i
Having found that the respondent has engaged ,in unfair labor practices,
the undersigned will recommend that it cease and desist therefrom, and that
it take certain affirmative action which the undersigned finds will effectuate
the policies of the Act.
The undersigned has found that the respondent dominated and interfered with
the formation and administration of and, contributed support to the B-line.
In order to effectuate the policies of the Act and free the employees of the
respondent from such interference and domination and the effects thereof,
which constitute a continuing obstacle to the exercise by its employees of the
rights guaranteed them by the Act, the undersigned will recommend that,'the
respondent disestablish the B-line and refuse to recognize it as the repre-
sentative of the employees for the purpose of dealing with the respondent con-
concerning grievances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment.
'e Alhough Rowland denied that she had gone to C I 0 headquarters at this time, Silver-
in an testified that she did, and the undersigned so finds.
THE BROWN-BRiOCKMETER' -CO. 1323
Although the respondent violated Section 8 (3) of the Act by locking out its
employees on August 20, the undersigned will not recommend the payment of
lost wages to the employees so discriminated against because of the small amount
of back pay due to each of the locked out employees and because of the impos-
sibility of determining which employees were locked out and which voluntarily
went out on strike
Upon the,basis,of the foregoing findings of fact and upon the entire record,
in the case the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Electrical , Radio & Machine Workers of America (C I. 0.) affiliated
with the Congress of Industrial Organizations , and the B-Line Employees
Association , unaft]liated, are labor organizations within the meaning of Section
2 (5) of the Act.
2 By dominating and interfering with the formation and administration
of the 13-Line.Ernployees Association , and by contributing support to it,, the
respondent has engaged in and is engaging in unfair labor practices , within
the meaning of Section 8 (2) of the Act.
3 By interfering'with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act. -
4. By locking out its employees on August 20, 1942, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
5. The aforesaid unfair labor practices are unfair labor - practices affecting
commerce, within the meaning of Section 2 ( 6) and ( 7) of the Act.
6. By discharging Edith Rowland on August 7, 1942, the respondent has not
engaged in unfair labor practices within the meaning of Section 8 ( 3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, The Brown-Brockmeyer Co., its officers,
agents, successors and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the B-Line Employees
Association, or with the formation or administration of any other labor organiza-
tion of its employees, and from contributing support to said B-Line Employees
Association or to any other labor organization of its employees ;
(b) Discouraging membership in United Electrical, Radio & Machine Workers
of America, C. I. O. or any other labor organization of its employees by locking
out or in any other manner discriminating in regard to the hire, tenure of employ-
ment, or terms or conditions of employment because of membership in or activity
in connection with any labor organization ;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form. join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing or to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the B-Line Employees Association as the
representative of any of its employees for the purpose of dealing with the
a
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and completely disestablish the
B-Line Employees Association as such representative ;
(b) Post immediately in conspicuous places throughout its plant at Dayton,
Ohio, and maintain for a period of at least'sixty (60) consecutive days from the
date of posting, notices to its employees stating (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 (a), (b) and (c) of these recommendations; (2) that the respond-
ent will take the affirmative action set forth in paragraph 2 (a) of these recom-
mendations; and (3) that its employees are free to become or remain members of
United Electrical, Radio & Machine Workers of America, C. I. O. and that it
will not discriminate against any employee because of membership or activity
in said labor organization ;
(c) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director,
in writing that it will,comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the complaint so far as it alleges that the
respondent discharged Edith Rowland because of her union membership and
activities be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as' amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or-proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request. therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
THOMAS S. WILSON,
Trial Examaimer.
Dated December 11, 1942.