The E. Biglow Co.

National Labor Relations Board - Board Decisions

Sep 29, 1943

52 N.L.R.B. 999 (N.L.R.B. 1943)

In the Matter of THE E. BIGIAw COMPANY and THE UNITED BRICK
AND CLAY WORKERS OF AMERICA (AFL)
Case No. C401.-Decided September 29, 1943
DECISION
AND
ORDER
Upon complaint issued pursuant to charges filed by The United Brick
and Clay Workers of America (AFL), herein called the Union, against
The E. Biglow Company, herein called the respondent, a hearing was
held before a Trial Examiner at New London, Ohio, on June 29 and
30, 1943, in which the Board, the respondent, and the Union partici-
pated 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 prejudicial error was committed. The
rulings are hereby affirmed.
On July 31,1943, the Trial Examiner issued his Intermediate Report,
a copy of which is annexed hereto, finding that the respondent had en-
gaged in and was engaging in certain unfair labdr practices affecting
commerce, and recommending that it cease and desist therefrom and
take certain affirmative action. Neither exceptions nor briefs were
thereafter filed by any party, nor was any oral argument requested
before the Board. Upon consideration of the entire record, we affirm
and adopt the findings, conclusions, and recommendations of the Trial
Examiner, except insofar as they are inconsistent with our findings
hereinafter set forth.
In June or July 1941, at the request of some of the respondent's em-
ployees, the Union began to organize the respondent's New London,
Ohio, plant. In August 1941, the Union advised the respondent that it
represented a majority of the production and maintenance employees
and requested a collective bargaining conference. In reply, the re-
spondent asked for proof of the claimed majority. In October 1941
the parties entered into a consent-election agreement, pursuant to
which an election was conducted under the auspices of the Board's
Eighth Regional Office. The Union received a clear majority of the
valid ballots cast and was certified by the Regional Director as the
employees' exclusive representative.
59 N. L R. B., No. 175.
999
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, D. Earl Child, the respondent's president, made certain
anti-union statements, as the Trial Examiner found. Moreover,
shortly before the election, the respondent posted an anti-union notice
which stated, in part, that the employees would never have to join any
union in order to retain their jobs and that-they, could not be "forced"
to join a union. The record is barren of any testimony that force was
being exerted on any employee, to join a union.
Shortly after the consent election and certification, the Union asked,
the respondent for a collective bargaining conference after working
hours, so that no working time or pay would be lost.' J. Leo Child, the
respondent's secretary and treasurer, who represented the respondent
throughout the subsequent negotiations, replied that he objected to.
meeting outside of working hours, and scheduled the first meeting for
I p. m. on October 30. At this meeting the Union presented a proposed
contract incorporating both its own demands and other provisions
favorable to the respondent. Child objected to the Union's principal
proposals, namely, those relating to the closed shop and check- off, waga
increases , and time and a half for work on Sundays and holidays and
in excess of 8 hours a day. Moreover, he offered no counterproposals
of any sort, and closed the meeting with a promise to notify the Union
as to when he could hold a further conference. After waiting for
"probably a week" without hearing from Child, the Union communi-
cated with him and asked for another meeting after working-hours;
again , the requested conference was set for 1 p. m., on November 13.
At this conference, dnd also at a third one scheduled for and held in
the afternoon 12 days later after a similar refusal by the respondent
to accede to the Union's request for a meeting outside of working
hours, Child maintained the negative position he had taken at the
first meeting, and also interposed' further objections. For example, he
objected to having to negotiate with the Union at any time during
the term of the proposed contract, both with respect to the lay-off of
employees in accordance with their "seniority and capability," 2 and
with respect to a wage increase after the respondent had audited its
books for the year.3 As to the wage demands, Child further stated
that he could do nothing at that time; upon being pressed, he promised
to take up the wage question with the respondent's Board of Directors
1 Some of the employees on the negotiating committee worked on "gangs," which were
paid at piece-work rates.
2 The Union was willing to agree toy such a clause , provided that the question of an
employee's "capability" was submitted to the bargaining process so that it could not
be used as a subterfuge for a discriminatory discharge ; but Child insisted on being
permitted to determine the matter unilaterally and with absolute finality
s To counter the Union 's original wage demands , Child replied that the respondent had
only recently worked into "the black," and hoped to be in a position to raise wages in a
few months , after auditing its books . The Union then offered to freeze the current wage
scale until that time, provided that the subject would thereafter be submitted to bargain-
ing ; but Child blocked this compromise by declaring that he did not want any further
"bargaining" during the term of the proposed contract.
THE E . BIGLOW COMPANY 1001
and let the Union know the results. Child never kept this promise..
At each of these meetings the Union asked Child for counterproposals
on the disputed items. None was forthcoming. Child further stated
that he wanted the contract to contain certain new requirements, such
as (1) that grievances, theretofore presented orally, should be sub-
mitted to the management in writing, and (2) that absences which
the respondent considered unreasonable and for which previously no
penalties had been prescribed, should carry established penalties.
Convinced that Child was not negotiating in good faith, the employees-
on the Union's committee said that they saw no point in staying away
from work any longer; whereupon the meeting ended, and the Union
filed the original charge in this proceeding, alleging that the re-
spondent refused to bargain, within the meaning of Section 8 (5) of
the Act.
A further meeting was nevertheless held on March 2.4 The Union,
receded from its closed-shop and check-off demands by excluding all
current employees who were not members of the Union and by giving
up the claim for a check-off. According to Child's testimony, his
ensuing discussion of the philosophy of the closed shop "just about
closed the meeting," since it again convinced the employees on the
committee that no genuine discussion or negotiation was to take place
which would warrant their remaining away from work. A further
meeting was then tentatively scheduled for a later date. Before ,such,
meeting, however, the respondent put a 10-percent general wage in-
crease into effect, retroactive to March 1, without consulting the-
Union, and in fact without even notifying that organization.5 On
March 21, Child held his fifth and last meeting with the Union, but
merely repeated his previous negative positions.
The respondent's bad faith in the negotiations is apparent. It
blocked the Union's efforts to hold bargaining conferences promptly
and without loss of pay. It rejected most of the Union's important
* In response to a request by the Union, the respondent ' s office had advised the Union on
February 27 that Child had been in in bed ever since Friday, February 20, and that no.
meeting could be scheduled . However, Leggett , whom we , like the Trial Examiner, credit,
testified that he telephoned the plant and talked with Child on Saturday , February 21.
5 As previously noted , before the wage increase , Child had held four meetings with the
Union's committee . This committee consisted of an international representative as
spokesman (usually Hill, sometimes accompanied by Leggett ) and about five employees,
who acted principally as observers . Child announced the wage increase as an accom-
pushed fact , not to such a committee but to various groups of employees , some of whom
were committee members. However , neither Hill nor Leggett was ever advised by the
respondent or anyone else of the wage increase Moreover , the announcement did not
refer to the Union's previous wage demands or purport to be in reply thereto We, like the
Trial Examiner , do not credit Child 's testimony that he announced the increase to the
Union's committee, particularly in view of Child's further testimony that he made the
announcement to an employee representing each department of the plant for the purpose
of having all the employees advised of the increase . We find , as did the Trial Examiner,
that- no announcement was made to the Union . Moreover , even if the respondent 's action
constituted an announcement to the Union, it is still clear , and we find , that the wage
increase was effected unilaterally without agreement by or negotiations with the Union.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demands with finality, offered no counterproposals, and made no effort
-to convince the Union of the possible good faith of its reasons for such
action. It stated that it would not "bargain" further during the term
of the proposed contract on two subjects which were bound to arise
during that period. It insisted on "penalty" provisions called forth
only by the Union's demand for a contracts And finally, after ignor-
ing the Union's wage demands and its own promise to discuss them
after a Board of Director's meeting, it effected a general wage increase
unilaterally, during contract negotiations with the Union but without
any agreement by or negotiation with the Union on that particular
subject. In fact, it announced the increase directly to its employees
without even referring to the Union's pending wage demand.7 Such
conduct in and of itself clearly constitutes a refusal to bargain with
the employees' exclusive representative on one of the most important
subjects of collective bargaining s
We find, upon the entire record, and particularly in view of the
unilateral wage increase and the respondent's significant failure to file
exceptions to the Intermediate Report, that on October 30, 1941, and at
-all times thereafter, the respondent refused to bargain collectively with
the Union as the exclusive representative of its production and main-
tenance employees at the New London, Ohio, plant, including watch-
men and working foremen, but excluding foremen, supervisors, office
,employees, and truck drivers. We find further that the respoladent
thereby, and by the statements of D. Earl Child and the pre-election
notice,9 interfered with, restrained, and coerced its employees in the
-exercise of the rights guaranteed in Section 7 of the Act.'°
6 The Trial Examiner found that the respondent ' s proposal to eliminate oral grievances
-was not indicative of bad faith . In the light of the entire record , and particularly since
there is no showing that grievances had to be submitted in writing after the negotiations
ended without a contract , this finding is erroneous and is hereby reversed . It is also to be
noted that there is no evidence that the respondent established penalties for unexcused
absences at any time.
7 It is significant to observe that the respondent, in its pre-election notice to its employees,
,stated merely that it would "recognize" a majority union, indicating that -the respondent
conceived its legal duty fulfilled by mere recognition.
8 See Great Southern Trucking Company v N. L R B , 127 F . ( 2d) 180 ( C. C. A. 4),
cert. denied , 317 U. S. 652 , enforcing 34 N. L. R. B. 1068; Singer Manufacturing Company
-v. N. L. R. B., 119 P. (2d) 131 (C C. A. 7 ), cert denied , 313 U. S 595 , 314 U S 705,
modifying and enforcing 24 N. L. R . B. 444; N. L R . B v. The Barrett Company, 139
F.' (2d) 959 (C. C. A 7 ), enforcing 41 N. L R. B 1327; N L. R. B. v Schmidt Making
Company, 122 F. (2d) 162 (C. C. A 4), enforcing 27 N. L. It. B. 864 ; Inland Lime & Stone
-Company v N L. R. B, 119 F (2d) 20 (C. C A. 7), enforcing 24 N L R B 758
9 The Trial Examiner ' s findings that this notice did not violate the Act is hereby reversed,
particularly in view of its crucial timing. See Matter of Rodgers Hydraulic, Inc, 51
N. L. R. B. 417.
io The Trial Examiner found that the respondent bargained individually with employees
Cooms and Davidson with respect to wages during negotiations with the Union It is
true that unilateral wage increases were granted during this period to virtually all of the
respondent ' s employees, including Cooms and Davidson ; but there is no evidence that the
wage increases given to Cooms and Davidson resulted from individual bargaining The
Trial Examiner 's finding is hereby reversed.
C
THE E. BIGLOW COMPANY 1003
ORDER
Upon the basis of the foregoing findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby,orders that the
respondent, The E. Biglow Company, New London, Ohio, and its,
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with The United Brick and
Clay Workers of America (AFL) as the exclusive representative of
all its production and maintenance employees at the New London, Ohio,
plant, including watchmen and working foremen, but excluding fore-
men, supervisors, office employees, and truck drivers, in respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with The United Brick and
Clay Workers of America (AFL) as the exclusive representative of all
its production and maintenance employees at the New London, Ohio,
plant, including watchmen and working foremen, but excluding fore-
men, supervisors, office employees, and truck drivers, in respect to
rates' of pay, wages, hours of employment, and other conditions of
employment;
(b) Post immediately in conspicuous places throughout its New
London, Ohio, 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 respondent 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 paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent violated the Act with respect to John H. Norris,
be, and it hereby is, dismissed.
MR. GERARD D. REILlY took no part in the consideration of the above
Decision and Order.
0 '
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
John A. Hull, Jr., Esq., for the Board.
A. G. d R. E. Fuller, by A. G. Fuller, Esq., of Findlay, Ohio, and Chester
Nikodym, Esq., of Cleveland, Ohio, for the respondent.
William J. Leggett, of Midvale, Ohio, and Howard R. Hill, of New Philadelphia,
-Ohio, for the Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on June 1, 1943, by The United Brick
and Clay Workers of America (AFL), herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Eighth Region (Cleveland, Ohio), issued its complaint dated June 7, 1943,
-against The E. Biglow Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affecting
,commerce within the meaning of Section 8 (1), (3) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint and notices of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that: (1) the respondent, on specified dates and by named officials, (a) warned
-a negro employee that if the Union secured a contract with the respondent, the
members of the negro race would lose their employment ; (b) questioned one of
its employees as to his union affiliation and activities; and (c) attempted to
discredit the Union by bargaining individually and directly with its employees;
+(2) the respondent on or about November 15, 1941, demoted John H Norris be-
cause of his union activities and with intent to discourage union membership ;
-and (3) the respondent on October 30, 1941, and at specified later dates, refused
to bargain collectively with the Union in respect to rates of pay, wages, hours of
employment or other conditions of employment, although the Union has been,
since October 16, 1941, the duly designated representative of a majority of ,the
-respondent 's employees In an appropriate unit.
The respondent filed, its answer, on or about June 22, 1943, admitting certain
facts as to its corporate organization and the character of its business and con-
,ceding that it is engaged in interstate commerce within the meaning the Act. The
respondent, however, denied that it had been guilty of any unfair labor practices.
Pursuant to notice, a hearing was held in New London, Ohio, on June 29 and
.30, 1943, before the undersigned, Charles E Persons, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
,represented by counsel, and the Union by two of its officials. All parties par-
ticipated in the hearing. Full opportunity to be beard, to examine and cross-
N•examine witnesses, and to introduce evidence was afforded all parties. At the
close of the Board's presentation in chief, and again after the receipt of all
testimony, the Board moved to conform the complaint to the proof insofar as
formal matters-were concerned. This motion was granted without objection.
During the hearing, the Board moved to amend the complaint, adding certain
exclusions to the definition of the appropriate unit. The respondent consented
to this amendment, and the Board's motion was granted. At the conclusion of
the hearing oral argument, participated in by the Board and the respondent, was
held before the Trial Examiner. The parties were duly notified that they had
the privilege of presenting briefs to the Trial Examiner. The respondent sub-
mitted such a brief, which was duly considered by the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following: ,
THE E. BIGLOW' COMPANY 1005
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The plant with which this proceeding is concerned was established prior to
1911 by E. Biglow who operated it as an individual . In 1928 D. Earl Child and his
brother, J. Leo Child, purchased the plant and incorporated it as the E. Biglow
Company under the laws of the State of Ohio. The principal office and plant
are located at New London, Ohio. The respondent is engaged in the manufacture
of drain tile and other clay products. The principal raw materials used are clay,
coal, and water. During the year 1942 the respondent purchased $37,000 worth
of coal and $150 worth of clay. All the coal was purchased outside the State of
Ohio. During the same year the respondent manufactured finished products
in excess of 27,000 tons. Of this amount, over 33 percent was shipped from its
factory at New London, Ohio, to points outside that State. The respondent
concedes that it is engaged in interstate commerce within the meaning of the
Act.'
II. THE ORGANIZATION INVOLVED
The United Brick and Clay Workers of America (AFL) is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
The record reflects no union activity in the respondent's plant before the
summer of 1941. At that time a group of employees, of whom Louis Marsh was
leader, applied to P. A. Trant, a general organizer for the AFL, for aid in
organizing. Trant referred this request to the Union, as the AFL affiliate having
jurisdiction in the clay industries. William J. Leggett, a vice president of the
Union, accompanied by an AFL organizer, came to New London, Ohio, on July
7, 1941. A week later, Howard R. Hill, Industiial Relations Representative for
the Union, came to New London. Three meetings of the employees were held
at the home of John H. Norris, an employee of the respondent with over 20
years' service in the plant. Membership cards were signed at a meeting on
July 14. Temporary local officers, later made permanent, were selected. At a
later meeting a negotiation committee was appointed. On August 22, 1941, Hill
and the union committee met with J. Leo Child, secretary and treasurer for the
respondent. The union representatives at this meeting claimed to represent a
majority of the employees. Child demanded proof of this claim. Hill declined
to submit his membership cards to Child for examination, since they had been
secured under,a promise to the employees that the names of signers would be
considered confidential.'
The parties thereafter consulted with the Board's agents in the Eighth
Regional Office and worked out an agreement for a consent election, which was
signed on October 13, 1941. An election was held under the Board's control on
October 17. On October.20, the Regional Director certified that the Union had
been designated by a majority of the employees as their exclusive representative
for the purpose of collective bargaining.
1 These findings are based on a stipulation of the parties which was incorporated in the
record and on allegations in the complaint admitted by the respondent in its answer.
2 These findings are based on uncontroverted testimony of Hill and Marsh which the
undersigned credits.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint and coercion
The incidents discussed in this section all relate to acts of D. Earl Child,
president of the respondent. The findings made are based on uncontroverted
testimony of Board witnesses, as indicated, which is credited by the undersigned.
Ray Cooms, an employee at the plant for over 15 years, had attended union
meetings at Norris' home. Shortly before the consent election, Child summoned
him to the office and asked what he thought about the union. Cooms replied that
he "never thought nbthihg about the union." Child further asked Cooms whether
he had attended union meetings. Cooms admitted that he had attended one.
Norris testified that "a month or so" before the consent election, Child
asked him "something about union activities." Norris replied, "Yes we had some
meetings up to my house." Child then said, "Well, I haven't got anything to do
with it, I ain't allowed to say anything for it or against it, and you boys have the
perfect right to organize if you want to. That is your business. I haven't got
anything against the union or for it. Neither way. I have to be neutral, I
have been told, through reliable sources, that if the union goes into effect, that
will be all of it for the niggers." It should be noted in connection with this
statement of Child that Norris is colored and that about half of the approxi-
mately 60 employees in the respondent's plant are negroes.
Marsh testified that during "the summertime in 1941," 2 or 3 weeks before
the consent election, Child talked with him concerning union activities. This
testimony reads as follows :
Why, just he had spoke about, I imagine, that they had heard we was
organizing a union, and he just asked me what we were doing about it.
And, just like I would talk to you. And they was nothing further said about
it, just about the union business there, what they was doing. He said he
didn't h aye a right to say yes or no, we should do just like we wanted,
but he thought we could get along as well without it as with it."
The undersigned finds that the respondent, through these'acts of its president,
D. Earl Child, and in conjunction with its refusal to bargain hereinafter dis-
cussed, interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.4
0. The alleged discrinvinatory demotion of John Henry Norris
Norris was first employed in the plant in 1911 and 1912, for about a year. He
returned for another year's employment in 1916 and 1917. He was again hired in
1923 and remained until he quit voluntarily on or about May 4, 1942.
When the union campaign began, Norris offered his home as a place for meet-
ings. Three meetings were held there. Norris served as union observer in the
consent election. It does not appear that he was an active solicitor of union
members. He was not a union official nor a member of the negotiating committee.
The complaint alleges that Norris was demoted, on or about November 15, 1941,
from his regular work as repair man to work in the yard of a less desirable nature.
Norris described his original duties as follow's : "Well, it consisted of a little of
everything in the repair line. Had worked on the motors, and on the wheelbar-
rows, and on the floors and oh the roofs, and on the harness, or anything-in other
words, I would term a general utility man, because I done all kinds of repair work."
8 Elsewhere Marsh stated this conversation :
He wasn't in favor of unions. He thought that we could get together and settle
these matters just as well without a union as we could with them.
4 Testimony relative to the Board's further allegation that the respondent *,attempted to
discredit the Union by bargaining individually and directly with its employees" is discussed
in III D 3 of this Intermediate Report.
THE E . BIGLOW COMPANY 1007
It appears in the record, and the undersigned finds, that the change in the
character of Norris' duties antedated the beginning of union activity in the plant.
In November 1939 the plant shifted over' fiom the production of clay tile' to
shale tile. The change involved the installat'ion' of heavier equipment; much of
it electrical: At this time also electri'cal' welding equipment, was' installed. This
change reduced the amount of repair work necessary. Norris could not operate
the electric welding equipment nor was he found efficient in overhauling the
electrical machines. He bad been occupied; in part, in repairing harness and
belting. This work had been displaced when trucks and electrically driven
machines were installed. Superintendent Deer testified, and the undersigned finds
his statement credible, as follows :
I never bad much experience with Norris' work before this new set up. But,
as I understand, he was in the repair line when I took over,. so I tried' him
out in that capacity. And on this, new equipment, I found his, work very
inefficient, and after a short time, I wasn't able to leave him to do no job by
himself where I had to depend on operating it for the next day.' And, it
finally drifted where, being an old: employee there, I just let him, tinker on
odd jobs, fixing hand buggies, maybe fixing a. kiln' band, where' maybe his
work, if it wasn't right, would, not affect my operations?
Yard Foreman Everett Poole- testified' that' at' the time of his leaving, Norris
spent about half of his time in the shop'as'repairs were needed and half helping in
the yard. Poole testified that' Norris had previously spent practically all his time'
in the shop: He mad'e one exception, liowe6er, testifying; "A't any' time you make'
big tile on the production' gdng, you practically have to have him, because he'd
take care of the big file in the trimming' and' so forth." This statement is in
accord with Norris' own testimony 6 and' is found to be true by the undersigned.
Several instances were established, by uncontroverted testimony, in which
Norris was responsible for faulty work on repair jobs. The undersigned finds
this testimony to be true and does not find it necessary to detail the testimony.
Norris was retained in the respondent's employ because the Childs had promised
E. Biglow immediately after their purchase of the plant was consummated that
they would keep Norris and others on their pay roll, even though because of age
their earning power became very much reduced. Norris is now in this sixty-first
year. His memory is impaired and his efficiency lowered. Despite this fact
and the change in the character of Norris' work assignments, his pay was not
reduced. Instead Norris testified that Earl Child had promised him a raise in
pay that would give him a 21/2 cent per hour differential over the yard men.
Norris dated this promise as sometime before the consent election . He understood
that he had received the promised increase.
On the day Norris quit, he had been directed to assist in handling the largest
tile produced in the plant. These were 12-inch tile 2 feet long. This was one
of his regular assignments . He complained to the mill foreman that he was
"not physically strong or well enough to lift those big tile." Norris then took
up the matter with Yard Foreman Everett Poole, who was in charge because
of the temporary absence of Superintendent Earl Deer. Poole proposed to give
Norris work in the yard until Deer returned but Norris insisted on quitting at
once. Accordingly he was paid in full and signed a termination slip on which
he noted that he had "quit for another job."
° An answer of Norris during his cross -examination corroborates Deer : "Well, we were
all working on the new building and when the new building was completed, why we all
continued to do repairs for a while " ( Italics added.)
6 Norris testified : "I taken care of the big tile when they made big tile .. . I worked on
the big tile regular."
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds no evidence in the record to support the Board's con-
tention 'that Norris was demoted because he was a member of and active in
behalf of the Union and because respondent wished to discourage membership
in the Union and activity on behalf of the Union. Accordingly, he recommends,
that so much of the complaint as refers to this allegation be dismissed.
D. The refusal to bargain collectively
1. The appropriate unit
The complaint, as amended alleges, and the respondent agrees, that all of the
production and maintenance employees and watchmen of the respondent at its
New London, Ohio, plant, excluding foremen, supervisors, office employees, and
truck drivers constitute a unit appropriate for the purposes of collective bar-
gaining.
At the hearing the Union contended that working foremen in the kiln filling,
booster, and emptying gangs were not covered by the term "foremen" and
should be included in the unit. The respondent objects to this inclusion? Each
of'these gangs is composed of six men. The duties of the filling and emptying
gangs are indicated by their names. The booster gang is employed only when
the plant is in full operation. Its members work on alternate days at filling
and emptying in order to speed production. After the Union had been organized
in the plant and shortly before the consent election, the respondent designated
the lead man on each of these three gangs as foreman. At this time the gangs.
were paid 42 cents per ton handled which was divided equally among the six men.
The new title of foreman carried with it additional pay of 50 cents per day.
Marsh, president of the Union's local, had been lead man on the filler gang and,
became its working foreman. J. Leo Child 8 stated the purpose of the new-
arrangement as follows :
As foremen they would be subject to holding the quality more constant,
quality and inspection .,. . if they had some an in their gang that didn't
perform, it wasn't their duty to discharge them, but it was, their duty to-
tell the superintendent of the plant that they didn't want them, and then
it was up-to the superintendent to discharge them, or put them on some other-
job.
It is agreed that these working foremen are occupied full time on production.
Marsh testified as to his duties : "I would kind of look after the material, to set
it up properly, and handle it carefully, and not to have any more breakage than
necessary." He had no authority to hire or to discharge employees but "could
go to the foreman 'and tell him that this man wasn't just exactly what I thought
he should be in the kiln and that was his business to fire him, or hire him or he
could still keep him or shift him or put him' on some other job, whatever he
wanted." Asked whether as a rule the foreman would be inclined to follow
his recommendation, Marsh testified that he' did not think so because, "I have
did that already and did not make any difference."
In making up the eligibility list for the consent election, the Board's Regional
Director removed all employees from the list who were designated as foremen.
In addition to the three working foremen discussed above, the plant force
included a yard foreman and a mill or machine foreman. The yard 'foreman,
Everett Poole, did not vote in the election. The votes of the other four were
0
7 Child testified : "And of course, the contention is there, the same as all other plants, that
a foreman should not be identified in the union affairs."
8 D. Earl Child did not testify during the hearing.
THE E. BIGLOW COMPANY 10091
challenged by the respondent. The result of the vote was such that the four
challenged votes could not affect the result and in accordance with the Board's
policies the Regional Director did not find it necessary to determine the validity
of the challenged ballots.
Poole as yard foreman and Foreman Myers in the mill each have about 10 em-
ployees under their supervision. They spend the major part of their working
time in supervising the men. While they have no authority to hire or discharge,
they may recommend such action. Superintendent Deer classified them as fore-
men. He was asked if he sometimes followed their recommendations regarding
hiring and discharging men and replied : "Well, I think so, if I think it advis-
able, yes." After consideration of the record the undersigned finds that the
three working foremen do not "have authority to hire, promote, discharge, disci-
pline or otherwise affect changes in the status of employees or effectively recom-
mend such action." 0 He accordingly finds that these working foremen are
properly included in the appropriate unit.
The undersigned finds that all of the production and maintenance employees,
watchmen, and working foremen of the respondent at its New London, Ohio,
plant, excluding foremen, supervisors, office employees and truck drivers, at
all times material herein, constituted and that they now constitute, a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section.
9 (b) of the Act, and that said unit insures to employees the full benefit of their
right to collective bargaining and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
After canvassing the result of the consent election, the Board's Regional Direc-
tor reported, on October 20, 1941, that there was a total of 60 on the eligibility
list. Adding three of the four challenged voters as found above would raise
this number to 63. Thirty-three ballots were cast for the Union, 4 were chal-
lenged, 1 was void, and 25 votes were cast against the Union. Accordingly, the
Regional Director certified that the Union had "been designated by a majority
of the employees in the agreed appropriate unit as their exclusive representative
for the purposes of collective bargaining." The respondent accepted the result
and confirmed this acceptance at the hearing.10
The undersigned finds that on October 20, 1941, and at all material times
thereafter, the Union was the duly designated representative of a majority of
the employees in the aforesaid appropriate unit, and that by virtue of Section,
9 (a) of the Act, the Union was and has been, at all times material herein, the
exclusive representative of all the employees in such unit for the purposes of
collective bargaining.
3. The refusal-to bargain
Soon after receiving notice of the Union's certification as a result of the con-
sent election, Hill arranged with J. Leo Child for a conference which.was held
on October 30, 1941. Later meetings were arranged, on the Union's initiative, on
November 13 and 25, 1941, and on March 2 and 21, 1942. In all of these con-
ferences J. Leo Child represented the respondent. Hill and a committee, headed
by Marsh, as president of the local, usually represented the Union. At the
second meeting Hill was accompanied by Leggett. Neither Hill nor Leggett.
e Matter of Boston Edison Company , R-4988-9; decision rendered July 8, 1943. 51
N. L.R.B 118.
10 Respondent 's counsel there stated : "There is no question but what you [Union] had:
the right to be the bargaining unit, we aren 't disputing that at all."
1010 DECISIONS OF NATIONAL LABOR RELATIONS ' BOARD
.could be present on March 2 , 1942, and Prank Kiger, an International Vice Presi-
dent of the Union, acted as their substitute . The conferences were held in the
afternoon and usually were in session from 1 to 5 o 'clock.
In the 1941 meetings the Union 's "Uniform Agreement for the State of Ohio"
furnished the basis for discussion . It contained 17 Articles. The following
treatment does not discuss the Articles about which there was no disagreement.
Article II provided for a closed shop, or union shop, as the union representatives
prefer to have it designated . It proposed that union initiation fees, monthly
.dues, fines , and assessments should be collected througth a check-off arrange-
ment. Only members of the Union , or those willing to become members within
15 days were to be employed . Child promptly and vigorously dissented , saying
that the closed shop was "definitely out, that there would be no union shop in
his plant." He proposed that the Union accept an open shop ." At either the
second or the third meeting, Hill presented a union maintenance clause as a
possible basis for compromise . Hill's proposal was that union members be-re-
quired to maintain good standing with the Union ; that newly hired employees
join within 30 days; and that non-union employees were not to be compelled
to join in order to retain their employment . Child's testimony shows that he
did not fully understand the significance of their proposal. He testified that he
told the union representative "all the difference between that and the one you
have got is just the inclusion of the 30 days " At the two meetings in 1942,
the conferees had before them a new version of the "Uniform Agreement for the
,State of Ohio," recently adopted by the Union. 12 Article II dropped the pro-
ision for checking off union dues . Ho-, ever it retained the closed or union shop
clause. Child rejected this proposal . Throughout the five conferences he con-
tended for an open shop.13 -
As appears in the testimony of Child, the March 2, 1942 , conference in
which Kiger represented the Union , was largely given over to discussion of
this issue . Child testified that Kiger ' s handling of the closed shop issue was
very direct and that Kiger suggested that if Child would accept this union
proposal , "everything else in this agreement can be agreed ' to very quickly."
Following a suggestion made by Kiger, Child sought advice from men with
whom he had acquaintance because of business relations . Their advice ran
.counter to the closed shop. Kiger did not appear to testify . Both Hill and
Leggett testified that he reported to them that nothing had been accomplished.
-Marsh ' s testimony fully corroborates their statements.
11 Shortly before the consent election the respondent posted a notice in its plant the
final paragraph of which reads as follows :
At this time the company also wishes to make clear to all employees that their right
to work here will not be dependent upon membership or non-membership in any type
of organization, and that every employee has the right to join any organization with-
out dictation or force of any kind.
The Board contends that this notice, in effect, gives advance notice to the employees that
the closed , or union shop , could never be a subject for negotiation in collective bargaining
conferences . After consideration of the record , and in view of the circumstances under
-which the notice was posted, the undersigned finds this contention of the Board to be
without merit.
12 The 1942 Agreement had been sent to Child by Leggett with a covering letter dated
February 16, 1942.
13 Child testified : "In every meeting , when we came back , the first thing we got into was
Article II , that had a discussion each time we met, from the first meeting to the last meeting.
And, after the first position was taken , why, in short, it was playing the same record over
again. I had the same reasons for opposing the closed shop, and Mr. Hill gave practically
- the same reasons , and was repeating over and over why he wanted a closed shop.
THE E. BIGLOW COMPANY 1011
Article III , covering hours of work and overtime pay for hours beyond 40
per week, 8 per day, and for work on Sundays and on a specified list of holi-
days, was acceptable to Child as to the premium pay for hours beyond 40 per
week. After discussion he accepted the holiday provisions . He qualified his
acceptance of the holiday on Clay Workers Annual Picnic Day by reserving
the right to hire substitutes for essential workers at time and a half. Child
called attention to the fact that his plant operated in a seasonal industry and
that, in firing kilns, operations were continuous . In consequence he consist-
ently refused to agree to premium pay for hours beyond 8 per day or for
Sunday work . He contended that in his small plant with a restricted work
force, it was often necessary to extend the daily hours. He would agree
to no restriction on hours beyond the 40 per week. On this Article the
parties defined their positions in the first conference and neither later modi-
fied the stand taken.
Article IV provided for a "committee of representative workers, whose
duties it shall be to assist in carrying out this agreement ." This group
handled grievances for the employees . There was also a collective bargaining
committee of three members . It was further provided that the respondent
should "recognize the National Officers of the [Union ]." Child agreed with
this Article in principle , however, he desired that the two committees should
be composed of the same individuals ,' and that the Union should designate one
National Officer to handle matters at his plant. In extenuation of this inter-
ference with the Union 's free choice of its representatives, Child, in his testi-
mony, proffered the following explanation : "I was quite insistent , as I remem-
ber it was not contested by the organizer and the committee, that we use
the same men . . . because whenever you bring in new men , then there
is a certain background of education that you have to go through , that causes
delay." The Union tentatively accepted Child 's proposals here.
Article V provided that employees desiring to take time off "must secure
the consent" of their supervisors . With this Child was in accord. He in-
sisted further , in the later conferences , that penalties should be provided for
absenteeism . Child's testimony at this point reads as follows : "And that
was just explained to Mr. Hill in much detail , those of you who have had
experience with colored labor realize that the absenteeism is very much
worse than it is with white labor . And, Mr . Hill remembers , and that was
not very controversial at all , that I said , and quoted a good many times
that that paragraph had to have teeth in it. We had to set some kind of
a penalty , and some kind of a force to make those people come to work.
Because, they would get to drinking gin at night and wouldn 't show up for
two days . And, a lot of them was good employees when they was on the job,
but it took about ten extra men to make sure you would have a full gang."
This article also set up machinery for the handling of grievances . Child felt
that all grievances should be presented to the plant superintendent in writing.
His testimony contains the following explanation of this contention : "Now,
the matter of the complaint made in writing was for the purpose of eliminating
the bickering around during working hours , and also eliminating a man getting
his steward or committee , without getting a chance to cool off, which, if he
could cool off, why about half the complaints , if a man cools off, would never
get into the arbitration committee " The Board contends, as appears in its
oral argument , that respondent 's proposed requirement that grievances be sub-
mitted in writing manifests bad faith in bargaining . Half the employees were
colored and some of them could not write . The respondent , however, did not
require, nor intend, that grievances must be written out by the employee con-
549875-44-vol 52-65
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned. The undersigned credits the testimony quoted above and finds no merit
in this contention of the Board. The union representatives tentatively accepted
Child's proposals here. -
Article VI, among other matters, provided for seniority rights applicable when
the plant -force was reduced. Child "had no objection to the general theory
that the oldest men should be the last laid off" and he agreed. to the applicability
of seniority to "work that anybody could do." 'However, he demanded the
insertion of a provision that "capability" to perform the work be added. He
argued that management should be allowed to select the men most capable of
assisting in making repairs, or in other specialized work, carried on during
the lay-off period. After discussion, the union representatives agreed to this
addition to the article, provided "capability" was determined by joint action of
the Union and the respondent. To this counter proposal Child would not agree.
No progress toward an acceptable compromise was made in the subsequent
conferences.
Article VII provided that trucks should not be loaded after the regular quitting
time. Child, in accord with his attitude toward the 8-hour day limitation,
refused to agree. He argued further that such a provision would hamper the
use of his trucks and require a larger investment in such equipment. This article,
together with No. NVI, proposing limitations on the number of kilns fired by
an employee, was not seriously pressed by the union representatives during-the
first three conferences. They were not included in the 1942 Uniform Agree-
ment. ' Consequently these differences between the parties, while unresolved,
are not material here.
The 1941 proposals set the termination date for the contract on March 31,
1942. The 1942 Agreement made this date June 1, 1943 Throughout the dis-
cussions Child held to a termination date at the year's close. This difference
between the parties proved irreconcilable. The Union advanced various com-
promises. They proposed to accept the December 31 termination, together with
the wage scale currently in force, if the wage scale were opened for new nego-
tiations on July 1. Child refused to agree. Again the Union proposed to set
the termination date at January 31 with provision for reopening the wage
provisions on 30 clays notice. Child would not accept this compromise. The
raisons d'etre for the respective contentions of the conferees are not obscure
and were frankly stated during the conference. The Union was well aware
that mid-winter was a disadvantageous time for the application of their strongest
weapon-economic pressure through a strike. Child argued that seeking orders
required certainty as to labor costs Hence his desire that the contract wage
provisions be fixed by the first of the year. On this point he admitted that he
made no concessions, testifying in response to a question : "I don't remember
that I made any compromise on that."
The Union's 1941 proposed contract had been accompanied by wage proposals.
These listed "Present conditions and payment" followed by requests for in- -
creases. The desired increases averaged approximately 25 percent. While
there was recurrent discussion of wage increases during the conferences,
Child at no time made wage proposals. In the first conference he stated
that, "he couldn't see any increases in sight." At a later conference he ex-
plained that the plant "had been in the red" for the first 5 months of 1941. While
it "was in the black" when conferences were opened, there had been a falling
off in business and the outlook was doubtful. He professed willingness to in-
crease wages "after the year was closed up" provided a price increase could be
made. In that connection he suggested that "as a matter of fairness" the Union
organize his nearest competitor before pressing their demands on him.
THE E. BIGLOW COMPANY 1013
As supporting his statement that he was willing to increase wages, Child made
a showing of his labor turnover. He testified that he said to the union represent-
atives: "We can't stay in business that way. But, if we can't get our prices ad-
justed, and we are more anxious to raise our wages than if you tell us that we
should raise them, because we have got to get our wages up in order to get the
quality of men necessary to run this plant as it should be ; because the men are
leaving us very rapidly and going to other places." In the conference on Novem-
ber 25, when the union representatives were insistent that some concessions be
made on wages, Child proposed to present the question to his Board of Directors
and report their decision to the Union by letter. Although Child wrote Hill, un-
der date of December 5, 1941, he did not fulfill this promise. This letter refers
to the conference as follows : "We have had a very frank talk relative to wages,
hours, working conditions, together with present and future business conditions.
It does not behoove me to advise the men about a contract as this is their prob-
lem." No report of action taken by the respondent's Board of Directors was ever
given to the Union.14 Nor did Child make any proposal whatever for wage ad-
justment during the five conferences which he held with union representatives.
Although Child did not bargain effectively with the union representatives
regarding wage increases, wage increases were granted during the conference
period which were, presumably, approved by his Board of Directors." Child's
testimony was that about March 5 or 6, 1942, he called Marsh„as president of
the Union, had him call his committee and "we also called in two or three other'
fellows who were representative men around the plant." When these men as-
sembled, as Child testified : "I reminded them of my promise, and told them that
I had this proposal, which was the new, proposed wage scale, that carried an
approximate increase of ten and one-half percent, some place between ten and
eleven percent, it varied somewhat in the departments."
The tonnage rate for the filler gang of six men on which Marsh worked, was
raised from 42 to 47 cents. Marsh said: "Well, I had hoped you would make it
even money." Child asked: "What do you mean by even money?" Marsh replied
that 48 cents would give each man 8 cents per ton which would make "easier
figuring." Child then said, "Well, Louis, that is as far as we feel the traffic would
bear at this time." Marsh agreed, in his testimony, that the conversation rela-
tive to the tonnage rate occurred exactly as stated by Child. He stoutly main-
tained, however, that the raise was given in 1941 and that no raises had been
received since the union activities began. As to the date he was clearly wrong
as was shown when the respondent's records were presented in_ the hearing
room. It was stipulated by the parties that a general increase averaging 10
percent became effective March 1, 1942, and that Marsh's gang at that time re-
ceived a tonnage rate increase from 42 to 47 cents.
Marsh further contended that he was notified individually by Child of the
increase and later passed the information along to the employees in the filler,
booster, and emptying gangs. The undersigned finds support, in the testimony
of Cooms, for Marsh's version of events at the time the increases in wages were
114 Marsh's testimony covered this issue : "Well he couldn't do anything. He couldn't make
any changes in the prevailing basis that had been, and about all he could do then was to take
it up to the Board . . . of Directors, and as soon as he could get it straightened out at
the Board of Directors, then he would et us know what he was going to do. And, as far as I
am concerned, I have never heard what the Board done for him."
15 Child's explanation of the background of this general pay raise was • "After we got
our books closed, and we got in several visits with some of our: competitors, we had found
a possibility of getting better marketing conditions, and better tiade conditions, and we
figured that we could raise our prices."
1014 DECISIONS OF NATIONAL LABOR E LATIONS BOARD
granted. Cooms dated the incident at "something about two months or better,"
after the consent election . He had been called into the office by J. Leo Child
with "the bunch that was on the belt, the machine bunch ." Child told the group
that an increase in wages would be granted . Cooms was late in arriving and
after he had "waited a little bit . . . asked the boss [Childs ] how about me
getting a raise." Child replied that he would get a raise and that Superintendent
Deer would take care of the matter . Cooms named four men who were present
when the wage increase was announced to the mill gang. Only two of them were
on the Union 's negotiating committee . Marsh testified that he and the Union
committee had never met with Child in the absence of Hill, or some other repre-
sentative of the Union . After considering these facts and the further fact that
Marsh had not reported to Hill concerning his meeting with Child the under-
signed concludes and finds that Child did not announce the wage increase through
the, Union committee . This conclusion is supported by Child's testimony that
he had also called "representative men."
The record contains further evidence , credited by the undersigned , showing
that Charles Davidson , a repair man and shovel operator , in the respondent's
plant receivdd a wage increase "individually and directly ." Davidson was on
the eligible list and voted in the consent election . His uncontradicted testimony
shows that he was hired in November 1940 at 50 cents an hour. Thereafter he
received three wage increases each of 5 cents an hour. The second of these was
granted during the period in which negotiating conferences were meeting.
The undersigned finds that by such bargaining individually and directly with
Cooms and Davidson , members of the appropriate unit, after the Union had been
duly designated as the exclusive representative of the employees for collective
bargaining purposes the respondent discredited the Union and served notice on
the employees of its intention to bargain as to wages on an individual rather
than on a collective basis.
N
Conclusions with respect to the refusal to bargain
The record , which is nearly free from conflicts in testimony , shows that
throughout the five conferences , the respondent manifested an unyielding attitude.
Once its position had been defined on any issue it regarded that matter as closed'
No counter proposals , or 'attempts to arrange a compromise , were advanced by
Child. This was true of all the important matters at issue: the closed shop;
premium pay for daily hours beyond 8; seniority as qualified by "capability";
the contract 's expiration date ; and wage increases . The undersigned finds that,
as Hill testified , Child's "stand was still the same on each of these" in the final
conference on March 21, 1942. The Union made concessions and proposed com-
promises on most of these issues. The respondent contends in its brief that
"the other matters of difference, with little doubt could have been sufficiently
compromised if the Union had dropped its contention for closed shop and check
off." The record does not sustain this contention . The, check off was omitted
from the proposals which were under discussion in the March 1942 conferences.
Earlier the Union had definitely proposed to substitute a union maintenance
clause for the closed shop. Hill testified , and his statement is credited by the
undersigned , "If we could have gotten together on a necessary number of things,
we could have dropped the closed shop , we cold have dropped one or two other
things, but we couldn ' t get together on any of them ." The unyielding attitude
of the respondent and its failure to bargain with intent to 'reach an acceptable
conclusion , is demonstrated by the method used in putting into effect a general
wage increase . This became effective March 1, 1942 It was announced on
March 5 or 6. This was 3 or 4 days after a conference between the parties.
THE E. BIGLOW COMPANY 1015
It was done at a time when further conferences were to be held. Instead of
joining in discussions on this matter, of prime importance to both parties, the
respondent made a unilateral decision and announced it to the employees as a
definitive program. No item in it was made subject to negotiation. The re-
spondent's action on wages clearly indicates a fixed determination not to bargain
collectively with the Union. In the action taken Hill, the Union's recognized bar-
gaining agent, was ignored. Demands for wage increases advanced by him had
been rejected and he was not granted the courtesy of notification after the deci-
sion to increase wages had been made.
The undersigned finds that on October 30, 1941, and at all times thereafter the
respondent refused to bargain collectively with the Union as the exclusive repre-
sentative. of its employees in the appropriate unit and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
1V. THE EFFECTS 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
The undersigned having found that the respondent has engaged in certain
unfair labor practices will recommend that it cease and desist therefrom, and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent refused to bargain collectively
with the Union. Accordingly, the undersigned will recommend that the respond-
ent cease and desist from such unfair labor practice and, to effectuate the policies
of the Act, bargain collectively, upon request, with the Union as the exclusive
bargaining representative of its employees within the appropriate unit set forth
above.
The undersigned having found that the respondent interfered with, restrained
and coerced its employees in the exercise of the rights guaranteed them by the
Act, will recommend that the respondent cease and desist from interfering with,
restraining and coercing its employees in the exercise of such rights.
Upon the basis of the above findings of facts and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The United Brick and Clay Workers of America (AFL) is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
2 At all times material herein all production and maintenance employees,
including working foremen and watchmen, working in the plant of the respondent
at New London, Ohio, but excluding foremen, supervisors, office employees and
truck drivers, constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the Act.
3 The United Brick and Clay Workers of America (AFL) was on October 20,
1941, and at all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining within the mean-
ing of Section 9 (a) of the Act.
4. By refusing on October 30, 1941, and thereafter, to bargain collectively with
The United Brick and Clay Workers of America (AFL) as the exclusive repre-
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
sentative of its employees in the above described unit, the respondent has en-
gaged in and is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (0) and (7) of the Act.
7. The respondent has not engaged in unfair labor practices in changing the
duties of John H. Norris.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, its officers, agents, successors, and
assigns shall :
1. Cease and desist from :
(a) Refusing1o bargain collectively with The United Brick and Clay Workers
of America (AFL) as the exclusive representative of its employees in the unit
described above in respect to rates of pay, wages, hours of employment or other
conditions of employment ;
(b) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing and to engage in concerted activities for the 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 undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with The United Brick and Clay
Workers of America (AFL) as the exclusive representative of all its employees
within the appropriate unit set forth above, with respect to rates of pay, wages,
hours of employment and other conditions of employment ;
(b) Post immediately in conspicuous places at its plant in New London, 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) and (b) of the aforesaid recommendations; (2) that the re
spondent will take the affirmative action set forth in paragraph 2 (a) of the,
recommendations; and (3) that the respondent's employees are free to becom
or remain members of The United Brick and Clay Workers of America (AFL)
and that the respondent will not discriminate against any employee because of
membership in or activity on behalf of this organization ;
(c) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith.
It is recommended that the allegation of the complaint relative to the demo-
tion of John H. Norris, be dismissed.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply ' with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
THE E. BIGLOW COMPANY 1017
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry
of the order transferring the case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, file with the Board, Rochambeau Building,
Washington, 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 per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of the order transfer-
ring the case to the Board.
CHARLES E. PERSONS
Trial Examiner.
Dated July 31, 1943.