The Hancock Brick & Tile Co.

National Labor Relations Board - Board Decisions

Oct 8, 1942

44 N.L.R.B. 920 (N.L.R.B. 1942)

In the Matter of THE HANCOCK BRICK & TILE COMPANY and UNITED
CONSTRUCTION WORKERS ORGANIZING COMMITTEE, LOCAL 359 (C. I. 0.)
Case No. C=2206.Decided October 8, 1942
Jurisdiction :, drain tile manufacturing industry.
Unfair Labor Practices.
Interference, Restraint, and Coercion: resurrection of company union upon advent
of nationally affiliated union ; supervisory anti-union statements ; surveillance
of union meetings ; refusal to accord same privileges to charging union as
to company union.
Company-dominated Union: domination and interference in formation and ad-'
ministration of, and contribution of support to, successive unions; failure to
create "line of fracture" between these successive unions with identical lead-
ership ; /direct 'suggestion to employees that successor unions be formed ; grant
of financial support through permission to use candy vending machines in plant,
Discrimination: demotion and discharge of employee for membership' in, and
activity on behalf of, affiliated union ; rejection of defense, on the facts, that
employee was demoted and discharged at request of fellow employees.
Collective Bargaining: majority established by membership cards-refusal to
bargain by : delay in conferring with representatives of union; failure to set
date for further conferences, as agreed, after interruption for convenience of
respondent; objection to certain personnel of bargaining committee of union;
persistent rejection of union's proposals without offer of counterproposals;
unilateral grant of wage increase sought by union's bargaining committee with-
out notice and after rejection of union's demand.
Remedial Orders: dominated organizations disestablished; reinstatement and
back pay ordered; respondent ordered to bargain collectively upon request.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding clerical and supervisory employees with right to hire and
discharge.
Mr. Ramey Donovan and Mr. Max W. Johnstone, for the Board.
A. G. and R. E. Fuller, by Mr. A. G. Fuller, of Findlay, Ohio, for
the respondent.
Mr. Carl C. Schmidt, of Toledo, Ohio,-and Mr. Frank C. Corwin, of
Findlay, Ohio, for the Union.
Mr. William F. Scharnikow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Construction Work-
ers Organizing Committee, Local 359 (C. I. 0.), herein called the -
44 N. L. R. B., No. 178.
920
THE HANCOCK BRICK & TILE COMPANY .921
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Eighth Region ( Cleveland , Ohio),
issued its complaint ,. dated March 30, 1942, against The Hancock
Brick & Tile Company , Findlay, Ohio, 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), (2), (3), and' (5) and Section 2 (6) and (7) of the,
National Labor Relations Act, 49 Stat. 449, herein called the Act. The
complaint and accompanying notice of hearing were duly served upon
the respondent, the Union, The Company Union, and Clay Workers,
Inc., the last two being labor organizations alleged in the complaint
to be company -dominated.
With,respect to the unfair labor practices , the complaint alleged,
in substance , that the respondent ( 1) since the spring of 1934, engaged
in a continuous plan and course of'conduct for the purpose of inter-
fering with the self-organization of its employees by (a) keeping
under surveillance the union meetings of its employees ; ( b) advising
its employees to form their own union without the aid of outsiders;
and (c) instigating and causing the formation of The Company Union
and of Clay Workers, Inc., and dominating and interfering with the
administration of said organizations and contributing to their sup-
port in various ways ; (2) on September 30, 1941, and at all times
thereafter, refused to bargain collectively with the Union as the ex-
clusive representative of the employees in an appropriate ' unit, al-
though the Union had been designated as their representative by a
majority of such employees ; and (3) in December 1941, discharged
Roy Golsby ,l and since that date has refused to reinstate him to his
former position , because of his membership in and activity on behalf,
of the Union.
On or about April 9, 1942, the respondent filed an answer admitting
certain allegations of the complaint as to the nature of its business,
denying the alleged unfair labor practices, and averring that, "upon
charges preferred by his co-workers, and upon their petition to re-
sponctent , the employment of Leroy Golsby was terminated for cause."
In its answer the respondent moved that the allegations of the com-
plaint referring to acts alleged to have been committed prior to July
1, 1940, should be stricken.
Pursuant to notice , a hearing was held on April 27, 28, and 29, 1942,
at Findlay, Ohio, before Howard Myers, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the re-
spondent were represented by counsel and participated in the hearing.
Full opportunity to be heard , to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
' The evidence indicates that the correct name is Leroy Golsby.
922 DECISION'SI OF), NATIONAL LABOR ZELATIONS -BOARD
.parties. - At the conclusion- of the Board's case , counsel for the re-
spondent moved to dismiss the complaint and to strike from the record
-all-evidence relating to acts alleged to have been committed by, the
,respondent prior to the effective date of the Act, and also all evidence
relating to acts alleged to have been committed by the respondent
prior to the date of its incorporation on or about July 1, 1940. The
motions were denied. At the conclusion of the hearing , counsel for
the respondent again moved to dismiss the complaint . The motion
was subsequently denied by the Trial Examiner, in his Inter-
mediate , Report. Counsel for the Board their moved to conform the
complaint to the proof , and counsel for the respondent moved to con-
form the answer to the proof. The motions were granted without
,objection . , During the course of the hearing , the Trial Examiner
made rulings on numerous other motions and on objections to the ad-
-mission of evidence . - The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed . At the conclusion of the hearing , counsel
,for the Board and counsel for the respondent presented oral argument
to the Trial Examiner . On May 8, 1942, the respondent submitted
a brief to the Trial Examiner.
- On May 26, 1942, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties , in which he
found that the respondent had engaged in and was engaging in unfair
-labor practices affecting commerce, within the meaning of Section
8 (1), (2), (3 ), and (5 ), and Section 2 (6) and ( 7) of the Act. He
recommended that the respondentk cease and desist therefrom, and that
it take certain affirmative action in order to effectuate the policies- of
,'the Act, including the reinstatement with back pay of Leroy Golsby.
On June 15, 1942, the respondent filed with the Board its exceptions
to the Intermediate Report, and on July 2,1942 , its brief in support of
the exceptions . Thereafter , pursuant to notice duly served on the par-
ties, -a hearing was 'held before the Board in Washington , D. C., on
-July 21, 1942 , for the purpose of oral argument . The respondent and
'the Union were represented and participated in the hearing.
- The Board has considered the exceptions and briefs submitted by the
respondent and hereby finds the exceptions to be without merit, inso.
far as they are inconsistent with the findings Of fact, conclusions of
.law, and'order set forth below.
Upon the entire record in the case, the Board makes the following :
^' -O =THE'FIAIVCOCK BRICK '& TIME-- COMPANY 'i='',
'-FINDINGS-OF FACT
-923
1. THE BUSINESS OF THE RESPONDENT - - %'i
The Hancock Brick & Tile Company is an Ohio corporation, having
its, principal place of business and office at Findlay, Ohio, where it
,manufactures, sells, and distributes drain tile. During 1941,-the re-
spondent purchased coal and clay amounting in value to approxi-
mately $50,000, of which more than $10,000 represented purchases made
-outside the State of Ohio. During the• salve year, the respondent
manufactured finished products of an approximate value of $200,000,
about 30 percent of which was sold and shipped to points outside the
State of Ohio. The respondent admits that it is engaged in commerce
within the meaning of the Act.
Prior to July 1940, an Ohio corporation, also known as The Hancock
Brick & Tile Company and herein called the original company, op-
erated the plant and conducted the business now operated and con-
ducted by the respondent. All the stock of the original company was
held by the Ohio Drain and Tile Company, an ,Ohio-corporation,
which acted solely as a holding company. On or about July 1, 1940,
the present respondent was incorporated under the laws of Ohio as a
consolidation of the original company and the Ohio Drain and Tile
Company. The officers of the original company became the officers of
the respondent, and the stockholders of the Ohio Drain and Tile Com-
pany now own the stock of the respondent. The business, officers, man-
agement, and employee personnel of the original company were con-
tinued without-change by the respondent. We find, as did the Trial
Examiner, that the respondent is, for all purposes material in these
proceedings, merely a continuation of the original company, and is
thus responsible for the acts of its predecessor.2 We shall conse-
quently refer to both entities as the respondent. '
II. THE ORGANIZATIONS INVOLVED
United Construction Workers Organizing Committee, Local 359,
is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the respondent.
- The Company Union and Clay Workers, Inc., are unaffiliated labor
organizations, admitting to membership employees of the respondent.
2 Matter o f --Norwich-:Dairy Company , Inc and -Vermont, Dairy Company, Inc . and In-
ternational Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America,
Local No 671, affiliated with the American Federation of Labor, 25 N. L. R. B . 1166, 1180-
1181; Matter of Carpenter Baling Company et at. and Auto Truck Drivers Joint Council
No. 50 (A F. L.), 29 N L. R. B. 60; and see also N. L R. B v. Hopwood Retinning
Company, 98 F. (2d) 97, 101 (C. C. A. 2) ; N. L R. B v Colten , 105 F. ( 2d) 179
,(C. C. A. 6) ; N. L. R. B. v. Killoren, Trustee in Bankruptcy, 122 F. ( 2d) 609 (C. C. A. 8).
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and adminis-
tratio9i of, and contribution •o f support to, The'Com pany Uffiomand•
Clay Workers, Inc.; interference , restraint , and coercion
1. The events prior to July 5, 1935 -
As the result of an organizational drive in the spring of 1934, the
employees of the respondent formed a local of the American Fed-
eration of Labor, herein called the A. F. of L. Memberships were
openly solicited, and within' a few 'months about 50 of the 90 em-
ployees had joined. According to the uncontradicted and credible
testimony of Pearl Gardner,-one of the' employees, Earl Childs, the
respondent's president, told him shortly after-the formation--of the
A. F. of L. local that before the employees "joined anything" they
should consult him, because "we could handle our own business with-
out any outsiders coming in to tell us what to do." John Walter,
another employee, testified without contradiction, and we believe his.
.testimony as did the Trial Examiner, that about the same time Super-
intendent Wilson told him that he knew what occurred at the union
meetings because he had "his man" attend them.
' One evening in July or August 1934, pursuant to information cir-
culated in the plant that day by Lester4Leeper, an electrician, and,by
others, substantially all the employees attended a meeting in the re-
spondent's garage. Earl Childs, Leo Childs, the respondent's secre-
tary and treasurer, Superintendent Wilson, and other supervisory
officials- were also present. Leeper told the men that they had gath-
ered to form a union.. After some discussion, the employees organized
as "The Company Union" and elected officers. The officers thereupon
explained the benefits which The Company Union would confer upon
its members. Thereafter the respondent defrayed all expenses of
The Company Union by paying its bills from the proceeds of candy
sales made in the plant under the supervision of the mill foreman.
Throughout 1934 and most of 1935 The Company Union used the
respondent's property, rent free, for monthly meetings. Superintend-
ent Wilson attended all the meetings and on one occasion he recorded
the names of those present. Alternate meetings were devoted to social
gatherings for all the employees. Earl or Leo Childs attended these
social gatherings, and the respondent furnished dinners, drinks, and
entertainment without charge.
The respondent did not enter into any contract with, or recognize,
The Company Union as bargaining agent. Nor is"there evidence that
The Company Union ever presented any grievances on behalf of the
employees. With the advent of The Company Union, membership
THE HANCOCK -BRICK & TILE COMPANY 925
in the A. F. of L. local decreased. sharply until, by the end of 1934, it
had only three members and had ceased to function.
Since these events occurred prior to the effective date of the Act,
they do not constitute unfair labor practices. They are, however,
material and relevant background in the consideration of,the charges
as to the respondent's later conduct.'
A
2. The events subsequent to July 5, 1935
Until May or June 1937, The Company Union continued to hold its
membership meetings on company property and to benefit from the
sale of candy •in the plant. The respondent maintained its practice
of supplying without charge dinners, drinks, and entertainment on
alternate meeting nights. On one occasion, in the summer of 1935,
The Company Union held one of its social gatherings at the home of
Earl Childs, the respondent's president.
Early in June 1937, after the Supreme Court had declared the Act
to be constitutional, Leo Childs called six or seven employees to his
office. Among them were Leeper and Clarence Smith, assistant secre-
tary of The Company Union. According to Childs, he announced
that the respondent had decided to discontinue an connection with
The Company Union, in view of pertinent portions of the Act, which
he read, and because the Board "was frowning on company unions."
In answer to a question from the men as to whether it was necessary .
to belong to a union, Childs testified that he told them that they could
join the A. F. of L., or the C. I. 0., form an independent union, or join
no union. Upon further inquiry by the men as to how an independent
union might be formed, Childs stated at the hearing that he told them
to retain an attorney, who should, however, have no connection with
the respondent. William Huff, an employee present at this meeting,
testified that Childs specifically stated that he intended to discontinue
the "get-togethers" and that, instead of joining an outside organiza-
tion, he preferred to have them form an organization of their own,
because he would rather "deal with a bunch of fellows" like them than
with "fellows 'from Chicago or New York, or any place like that."
Ancil Sterling, another employee who attended the meeting, testi-
fied that, in suggesting resort to legal services, Childs advised them
against a certain named attorney, whom he disparaged. According to
Sterling, the men finally decided, in Childs' presence, to retain Donald
A. Dietsch, a Findlay attorney, as to whom Childs made no comment.
The Trial Examiner was impressed with the testimony and demeanor
of Huff and Sterling, whom he believed. We credit their testimony
S N L R B v Pennsylvania Greyhound Lines, Inc , et at, 303 U . S. 261 ; N. L. if. B.
V Pacific Greyhound Lines, Inc, 303 U. S 272; N. L. R B. v. Newport News Shipbuilding
& Drat Dock Co., 308 U S . 241. Cf. N. L . if. B. V. National Seat Corp., 127 N ( 2d) 776
(C C A. 2)
926' DECISIONS" OF,,NATIONALL,L• ABOR- RELATIOTVS ,BOARD '
and find that Leo, Childs sponsored and encouraged the formation of
an unaffiliated organization: - , -
A day or so later, the- employees met ip the respondent's garage.
There, at the request of Leeper and others; they voted by secret ballot
on the, question of whether or not to form an "inside union." Despite
the fact that a majority of those voting expressed their disapproval
of an "inside union," the group which met with Childs and a few addi-
tional employees, most of *hom had been leaders in The Company
Union; retained the services of Dietsch, and on June 16, 1937, incor-
porated Clay Workers, Inc., uiider the laws of the State of Ohio.
Within a few weeks after the formation of Clay Workers, Inc.,
during which time practically all the employees had become members,
the respondent -entered into an oral agreement with it concerning
wages, hours, and conditions of employment. - Leo Childs testified that,
by this agreement, the respondent, granted most of the employees'
demands, including a 'general wage, increase.
Although dues were, fixed by Clay Workers, The., at 25 cents per
month, very * few members paid more than 1 month's dues. Like The
Company Union, Clay Workers; Inc., from the time of its' inception
up to and including 'the date of the hearing, received almost all its
revenue from the sale of candy at the respondent's plant. The respond-,
ent,' moreover, permitted Clay Workers, In., to erect near the time
clock, and to use, a bulletin board bear'i'ng the inscription "Clay Work
e'rs Inc." After S°ptember 7; 1938,:when attendance at its meetings
diminished considerably, Clay-'Workers, Inc., became inactive for a
period of 3 years. - • '
In . July 'or, August 1941, the Union commenced to organize the'
respondent's employees. Pursuant to general announcements' made
throughout the plant, an organizational meeting attended by a large
number of employees was held at a public hall in Findlay on August
28.' •• At the conclusion of the meeting; Earl and Leo Childs were been
by several of the employees • in the vicinity of the meeting hall. " At
the same time,-Superintendent Wilson was seen by some employees to
drive up in an automobile, park the car opposite the entrance to the
hall, cross the street, and walk past the hall. In about 5 minutes,
Wilson returned and again walked past the hall. Although Leo'Childs
and Wilson .were 'called' as .witnesse for the respondent, they neither
denied, nor made any attempt to explain' their presence in the vicinity
of the hall at the time the Union was holding its meeting. Earl Childs
did not testify. Under the circumstances, and especially in view of
the- failure of the respondent's witnesses to deny' or to' explain the
conduct attributed to them and the uncontradicted testimony that
Wilson had "his -man" in attendance at the A. F. of L. meetings in
1934, we find, as did the Trial Examiner, that the respondent engaged'
in surveillance of union meetings of its employees and thereby inter-,
THE. HANCOCK. BRICK -TILE _-COMPANY. 9273
fered with,. restrained, and coerced its employees in their exercise of
te rights guaranteed in Section 7 of the Act._ h
With the appearance of the Union, Leeper, who had been active in
The Company Union and in the formation of Clay Workers, Inc., and
who had, in June or July 1941, been made an ,assistant superintendent,
went through the plant during working hours and asked the em-
ployees, including members of the Union, to attend a special meeting
of Clay Workers, Inc. At this special meeting, held on September
17, 1941, new officers were elected and Leeper addressed the group,
commenting that the C. I. 0. would levy assessments upon•its members.
at any time.
After a majority of the respondent's employees had joined the Union
and in the course of contract negotiations between the respondent
and the Union, which are considered in, detail below, the Union re-'
quested permission to furnish and use a bulletin, board to, post its
notices, a privilege granted to and enjoyed by Clay Workers, Inc.,
Although the respondent, through Leo Childs, had already recognized
the Union as bargaining agent and was ostensibly negotiating as to
the terms of a contract, Childs testified that he informed the Union
that it might use, a bulletin board only on condition that "they would
let us draft a paragraph that would head all notices, that in no way
were we admitting the C. I. 0. [the Union] at present as the bargain-
ing agent for the employees of The Hancock Brick & Tile Company."
No such condition 'was imposed upon Clay Workers, Inc., in the use
of its bulletin board.
3. Conclusions
We agree with the Trial Examiner that the. respondent, dominated
and interfered with the formation and administration of, and con-
tributed support to, The Company Union and Clay Workers, Inc.
It is- clear that The Company Union was instigated, .formed, and
maintained by the respondent solely for the purpose of excluding the
A. F. of L. from the plant. Indeed, at .the meeting held with it group
of employees in June 1937, Leo Childs admitted the illegality of
The Company Union.
The respondent thus fostered and supported The Company Union
beyond the effective date of the Act until, in June 1937, it admitted
to a select group of employees that, the • organization as it then stood
was clearly vulnerable under the Act. • Instead of .releasing its em-
ployees from the restraints which had theretofore been imposed upon
them by announcing publicly that The Company Union was aban-'
doned for illegality and that the employees were free to join a new
organization of their choice, the respondent continued to interfere
with their freedom of organization by instigating 'the formation of
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clay Workers, Inc. Leo Childs, the respondent's secretary and treas-
urer, suggested to the select group of employees the formation of a
new inside union to replace the obviously outlawed company organi-
zation. As a result of Childs' suggestion, and despite the clear oppo-
sition of the employees to the formation of an inside union, Clay
Workers, Inc., was almost immediately organized under the same
leadership as The Company Union. Very shortly thereafter, the
respondent recognized the new organization as the representative of
its employees and, in an oral agreement, acceded to almost all of its
demands. Moreover, like its predecessor, most of its revenue was
derived from the respondent. The respondent did not at the outset
even attempt to indicate to its employees that any new inside union,
when formed, would lack the support of the respondent, be free from
its influence, or differ in any substantial respect from The Company
Union, nor did it at any time thereafter make any such 'disclaimer.
We find that Clay Workers, Inc., is the, direct successor to The Com-
pany Union and that it was -sponsored and maintained by the re-
spondent for the same illegal purpose which brought about The Com-
pany Union. , That the employees thus regarded Clay Workers, Inc.,
is apparent from the respondent's failure publicly to abandon The
Company Union and to renounce any connection with the new or-,
ganization, from the identity of leadership of both organizations,
and from the continued' support accorded the successor by the re-
spondent. Moreover, the alacrity with which the employees joined
the new organization, despite their demonstrated opposition to it,
and the fact that it lapsed into dormancy for a period of 3 years,
unequivocally indicate that they did not look upon it as a genuine
collective bargaining agency, but rather as an organization imposed
upon them by their employer.
The respondent's purpose in fostering Clay Workers, Inc., as an
obstacle to free organization is plainly evident from the attempt of
Assistant Superintendent Leeper' hastily to revive Clay Workers, Inc.,
upon the advent of the Union and from his statement to, the em-
ployees, at a meeting to which he had invited union members, that
the C. I. 0. could levy assessments upon its members at any time.
Finally, the respondent emphatically demonstrated its hostility to the
Union and its preference for Clay Workers, Inc., by engaging in sur-
veillance of the Union's meetings and denying to it privileges accorded
Clay Workers, Inc.
We find, as did the Trial Examiner, that the respondent, after July
5, 1935, dominated and interfered with the administration of The
Company Union' and that it dominated and interfered with the forma-
fion and administration of Clay Workers, Inc., and has contributed
support to them ' that it thereby, and by other acts set forth above,
THE HANCOCK BRICK & TILE COMPANY 929
has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed . in Section 7 of the Act.
B. The refusal to bargain collectively
1. The appropriate unit
The complaint alleged, and the respondent has at no time denied,
that, all the production and maintenance employees of the respondent,
exclusive of clerical and supervisory employees , constitute a unit
appropriate for collective bargaining.
We find, as did the Trial Examiner, that the,respondent's produc=
tion and maintenance employees , exclusive of clerical and supervisory
employees with authority to hire and discharge , at all times material
herein constituted , and that they now constitute , a unit appropriate
for the purposes of collective bargaining , within the meaning of sec-
tion 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
On September 29, 1941, according to its answer and the testimony at
the hearing , the respondent employed approximately 90 persons within
the unit herein found to be appropriate. According to the uncon-
tradicted testimony of Schmidt , the Union 's organizer , 55 or 56 of
these employees had by that time signed membership cards designating
the Union as their collective bargaining representative . During the'
course of the hearing , the respondent did not dispute the Union 's claim
to a majority. _
We find, therefore , as did the Trial Examiner , that on September 29,
1941 , and at all 'material times thereafter , the Union was the duly
designated representative of a majority of the employees in the afore-
said 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
The evidence concerning the Union 's attempts to bargain collectively
with the respondent. is, except as hereinafter indicated, undisputed, and
we like the trial examiner , accept it as true : on September 29, 1941,
Schmidt, whose headquarters were in Toledo, wrote the respondent a
letter, in which he enclosed a copy of a proposed contract and asked
487498-'42- '61 44-59
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent to set-a date, not later than October 6, for the purpose
of discussing the proposed contract. About 10 days later, Leo Childs
telephoned Schmidt in Toledo, saying that he was leaving town for
about a week and asking that Schmidt get in touch with him there-
after. On October 20, 1941, Schmidt telephoned Leo Childs and made
an appointment for the following day. Pursuant to the appoint-
ment, Schmidt and Frank Corwin, an 'employee who was president
of the Union, met with Childs on October 21, 1941. Childs requested
that Schmidt and Corwin show him the signed membership applica-
tions. Schmidt refused, but suggested that the Union's majority
claim might be substantiated by a consent election to be conducted by
the Board or by a check of the membership cards against the respond-
ent's pay roll to be made by one Ruffing, Director of the Industrial
Peace Board of the City of Toledo. According to the testimony of
Corwin, which we credit, as did the Trial Examiner, Childs repeated
his request that he be permitted to examine the Union's cards, ex-
plaining that a Board election would take too much time. The meet-
ing ended when Childs refused to discuss anything but the question of
the Union's majority and asked for a few days to investigate Ruffing.
On October 29, 1941, Childs met with Schmidt, Corwin, Hosman,
an employee, and Dumbrowsky, another union organizer. Childs
explained that he had been too busy with other matters to investigate
Ruffing, but agreed to recognize the Union as the bargaining.repre-
sentative of the respondent's employees. The parties then proceeded
to discuss the contract. Although each clause was considered sepa-
rately, Childs agreed only to that according the Union exclusive recog-
nition. He refused to discuss changes in the existing hours of employ-
ment. He dismissed the union-shop clause with the statement .that
he believed the closed shop to be un-American, and would not negotiate
concerning, wage increases on the ground that they were rendered
impossible by the seriousness of competition in the industry. As for the
seniority clause,_childs asserted that- seniority rules were not, feasible
in the tile industry, as ability was' the,only valid criterion governing
lay-offs or discharges. During the course of the conference Corwin
enumerated the names of the persons, including Golsby, who composed
the bargaining committee. Childs admitted having said that he
thought the Union could have selected a person who would "compre-
hend the problems that we get into in - negotiation much better than
Mr. Golsby." The meeting concluded with Childs' promise to notify
Schmidt or Corwin when he could meet with them again.
When, by November 13, 1941, Schmidt had not heard from Childs,
,he telegraphed the latter that, "to insure continued;work at the Findlay
plant;" an agreement would have to'be reached'by midnight of Novem.
ber 19. Although Childs received the telegram, he did'not "reply. . On
THE HANCOCK BRICK & TILE COMPANY 931
November 19, Schmidt sent another telegram to Childs, reminding
him that continuance of work in the plant depended upon completion
of their negotiations. Later that day Childs telegraphed Schmidt that
he was then in Findlay, where he could be reached by telephone, and
that Schmidt would have to make a definite appointment to see, him.
Upon receipt of the telegram, Schmidt telephoned Childs and arranged
a meeting at the latter's office for November 20, 1941.
On November 20, 1941, Schmidt went to Childs' office with Corwin,
Dumbrowsky, Hosman, and Faringer, an employee of another company
and secretary of a union local in Findlay, whose presence at the con-
ference was desired by the Union. Childs,,however, declined to pro-
ceed in the presence of Faringer. Corwin testified, and we find, as
did the Trial Examiner, that Childs stated that he "didn't care to go
through ^ with the contract at all, or through the contract at,all, or
discuss any matters with Mr. Faringer there." Childs in his testimony
admitted objecting to Faringer's presence. Despite Childs' unjustifi-
able interference with the composition of the bargaining committee,
the Union and Childs agreed to meet again on November 27, without
Faringer.
On November 27, Childs met with Schmidt, Dumbrowsky, and the
entire bargaining committee. Each clause of the proposed contract
was again discussed. Although the meeting lasted 4 or 5 hours, the
recognition clause was the only one to which Childs would agree. He
was adamant in the position which he had expressed at the meeting
of October 29 and offered no counterproposals to the provisions he had
rejected. The meeting concluded when the union representatives
asked Childs to fix another date for a further' conference. Childs
replied that he would notify Corwin.
On November 29, 1941, Childs called Corwin to his office and stated
that he was uncertain as to when he could meet again with the-union
representatives, as he was leaving town for an indefinite period.
During this conversation, according to the uncontradicted and credible
testimony of Corwin, Childs reiterated his opposition to a seniority
policy, again explained his inability to fix a date for a further confer-
ence with the Union, then added that "he had a place for a 'man iii'a
responsible position," and questioned Corwin about his personal habits.
On November 30 and December 22 and 31, 1941, the Union wrote
to Childs requesting an appointment for another conference. The
letters were ignored, except that on December 26, 1941, Oscar Loyer,
the respondent's vice president, notified Schmidt by letter that Childs,
who was out;of town, would not return until after the first of the year
and that it would be necessary to make an appointment to see him at
that time.. Although Childs called Corwin , to his office on several
occasions during February 1942 to discuss Corwin's probable promotion
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the position of foreman, Childs never informed Corwin that he was
ready to confer with the Union. Nor did Childs notify Schmidt or
any other member of the bargaining committee of his availability for
further negotiations. Moreover, in spite of Childs' protestations at
conferences with the Union of the respondent's inability to grant a
wage increase, the respondent, without prior notice to, or consultation
with, the Union, effected a general wage increase for all the production
employees in February 1942. After the wage ' increase had been
granted, Childs called Corwin to his office and asked him whether
the men were pleased with the increase. In about March 1942, Corwin
was promoted to the position of foreman. No further attempts were
made by the Union to bargain with the respondent.
4. Conclusions with respect to the refusal to bargain
The respondent's conduct, viewed in its entirety, clearly indicates
a fixed determination not to bargain collectively with the Union. Only
after considerable delay and, on one occasion a threat of a strike, did
the respondent accede to the Union's requests for the four conferences
which were held on October 21 and 29, and November 20 and 27, 1941.
The fruitless meeting of November 27 was adjourned with the under-
standing, for Childs' convenience, that he would notify Corwin, the
Union local's president, when he could resume the ehcussions. There-
after the Union's organizer was unsuccessful in securing any further
conferences, and,Childs, avoiding the subject in his conversations with
Corwin, spoke to Corwin only about his promotion, in an apparent
attempt to divert Corwin's interest from the Union's objective and
thereby to undermine its bargaining strength. Moreover, on two
occasions the respondent attempted to interfere with the composition
of the Union's bargaining committee and with the employees' choice
of bargaining representatives by criticizing unfavorably the designa-
tion of Golsby as a member of the bargaining committee and by suc-
cessfully insisting on the exclusion of Faringer from the bargaining
conferences.4 The four conferences actually held with the Union
yielded no more than an assertion by the respondent that it recognized
the Union as exclusive bargaining representative. Otherwise, how-
ever, the respondent obstructed the bargaining process and rendered
impossible any composition of differences by persistent rejection of the
Union's proposed terms without offer of any counterproposals. That
the respondent's recognition of the Union as bargaining agent was
* It is well settled that an employer may not dictate the personnel 'of the group that
his, employees select to represent them ; that is the necessary and exclusive right of the
employees Matter of New Era Die Company and Inte,national Association of Machin-
ists, Local 213 (AFL), 19 N. L R. B 227, 240, enf'd as mod , N L R. B : V •New Era Die
Co, 118 F. ( 2d) 500 (C -C A 3). Cf Fort Wayne Corrugated Paper Co. v . N. L R B,
111 F ( 2d) 869, 872 (C. C A 7).
THE HAYCOCK BRICK & TILE COMPANY 933,
no more than an empty gesture devoid of any intention seriously to
bargain with such representative is further apparent from its ready
acquiescence in virtually all the demands of Clay Workers, Inc., in 1937
and from the unilateral grant of a wage increase in 1942 without prior
notice to, and after rejection of, a similar demand by the Union. We
are convinced that the respondent failed in its duty under Section
8 (5) of the Act.
We find, as did the Trial Examiner, that the respondent, on October
21, 1941, and at all times thereafter, refused to bargain collectively
with the Union as the exclusive representative of its employees in the
appropriate unit, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
C. The discriminatory demotion and subsequent discharge of Leroy
Golsby
Golsby was first employed by the respondent in 1926 or 1927. After
working for about 3 months in the yard gang, he was transferred to the
emptying gang, where lie remained until October 1941.
In May or June 1941, Golsby invited his foreman, Charles Zehender,
and two other members of the emptying gang to his home, where he
discussed with them the advisability of unionization of the plant.
Golsby then communicated with the G. I. O. regional headquarters
in Toledo. As a result, in July or August 1941, Schmidt took charge
of the organization of the employees and, as found above, by the exld
of September about 55' or 56 employees had joined the Union. Golsby
openly solicited members and discussed unionization on several occa-
sions with his foreman who, on September 5, 1941, became a member
of the Union. As a member of the bargaining committee, Golsby met
with the management 'on one occasion during the period of the Union's
fruitless efforts to negotiate concerning terns and conditions of em-
ployment. As already noted, Childs criticized the choice of Golsby
as a member of this committee.
On or about October 8, 1941, Golsby, was injured on the job and
remained away from the plant until October 23. On October 22, 1941,
the day before Golsby returned to work, Superintendent Wilson ad-
mittedly drew up and asked the members of the emptying gang to
sign the following petition :
As foreman and employees constituting what is known as the
Emptying Gang for The Hancock Brick & Tile Company, we
request our Superintendent, Charles Wilson, to' replace LeRoy
Golsby with Clarence Williams.
This request is made in order to promote both harmony and effi-
ciency in our gang.
934 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
Upon Golsby's return, Superintendent Wilson placed him in the yard
gang, saying that, since the work there was less strenuous , he was to
remain in the yard gang for a few days until he regained his strength.
At'that'titne , members of the emptying gang averaged about 80 cents
her hour, while the yard gang received a straight hourly wage of 47
cents. Golsby testified that his work in the yard gang consisted of
digging ditches, drilling tile, loading trucks, and general work in the
yard.
Golsby testified as follows concerning his attempts to return to his
former work and the final cessation of his employment : After several
days in the yard gang, he asked AVilson to return him to the emptying
gang, stating that the work on the yard gang was more difficult and
paid about one-half the wages. Wilson refused. On November 7,
1941, Golsby was again injured while at work, and was away from
the plant under the doctor's are until December 1. Upon his return,
Wilson again assigned him to the yard gang. On December 4, 1941,
Golsby,'asked Wilson to put him, on the emptying gang. Wilson still
refused, saying that the men on the emptying gang had requested the
respondent not to assign Golsby to their gang. Golsby then asked
Wilson if he could have a few weeks' leave to look for another job
and inquired whether, if his quest was fruitless , he could return to
the plant. Wilson replied in the affirmative. After unsuccessfully
seeking another job, Golsby told Wilson that he was unable to secure
a job elsewhere and that he would like to return to work for the
respondent. Wilson replied that he had no work for him.
In its answer the respondent averred that Golsby had been' dis-
charged for cause. At the hearing, the respondent contended that it
did not discharge him, but that he voluntarily quit his employment.
To support this contention the respondent called as witnesses Super-
intendent Wilson and the members of the emptying gang.
Wilson -testified as follows concerning the-. circumstances leading
to Golsby's transfer and the events subseqent thereto : Prior to
Golsby's first injury, Wilson had been informed by Zehender that
Golsby was not doing his share of the work and that the men resented
that fact. Wilson thereupon decided to put Golsby on the yard gang
when he returned to work and , wanting "something in writing to file
away," he prepared and had the men in the emptying gang sign the
petition requesting the removal of Golsby from their gang. When
Golsby first protested about being put on the yard gang, Wilson told
him that he, would gladly reinstate him, to the emptying gang if the
gang members agreed . Thereafter, he gave Golsby a few weeks' leave
to look for • another job because Golsby was dissatisfied with the wages
he was receiving on the yard gang. When Golsby returned to the
plant on December 20, 1941, Wilson offered him a job on the yard
THE HAATCOCK BRICK & TILE COMPANY 935
gang, despite the yard-gang foreman's previous complaint concern-
ing Golsbyy's lack of cooperation with the other workers. ,Golsby re-
fused the job and walked out of the plant, saying that Wilson declined,
to put him back on the emptying gang because he was a colored man.
Zehender testified that about 2 weeks before,Golsby received his
first injury, Tucker and Wyatt, two of the men in the emptying gang,
had reported to the witness that Golsby was not doing his share of
the work, and that he, in turn, reported that fact to Wilson. On
February 10, 1942, Zehender signed an affidavit prepared by a Field
Examiner of the Board, and admitted in evidence, in which he stated
that to his knowledge "none of the men in the gang had discussed the
requesting of Golsby's removal and no one had suggested the circula-
tion of such a petition," and that he had signed the petition at Wilson's
request, "taking the request more as an order than as a request."
Furthermore, Golsby testified without contradiction, and we find, as
did the Trial Examiner, that several times during 1941, and prior
thereto, Zehender had praised his work.
Tucker,, another member of the emptying gang, testified that just
prior to Golsby's first injury, he complained to Zehender about
Golsby's refusal to cooperate with the other "men. Although Tucker
was not questioned as to whether he requested Golsby's removal from
the emptying gang, he testified that he did not request his "discharge,"
and, in a pre-trial affidavit prepared by an attorney for the Board, and
admitted in evidence, Tucker stated that he had never complained
about Golsby or his work to anyone and tliat he had never "asked
that he be discharged or that a petition be gotten up for his discharge."
Wyatt, another member of the emptying gang, testified that he had
complained to Zehender - about Golsby and that occasionally Golsby
"would get .a pouting spell and would hold up the gang." Thomas,
the remaining member of the emptying gang, testified that he made no
complaint about Golsby and that he told Wilson after signing the
petition that "he would just as soon carry Golsby as anybody else in
the yard."
• It is apparent from the testimony of fellow employees and the fore-
man, Zehender, that any complaints which may have been made about
Golsby's work were not in themselves sufficiently serious to warrant
Wilson's action, on his own motion, in removing Golsby -from the
emptying gang. We are not convinced, therefore, that the respondent
transferred Golsby from the empting gang because of any serious
complaint against him by his fellow workers or because of a desire on
theinpart for his removal, but find, on the contrary, that Wilson alone
was responsible for the transfer of Golsby and that he drafted the
petition requesting Golsby's removal merely as a pretext in justifica-
tion of the demotion.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- In view of the facts that none of the emptying gang requested
Golsby's removal, that there is no credible testimony of serious com-
plaints by them, that the petition for Golsby's transfer was solely
Wilson's idea and not theirs, and that Golsby, an employee of long
standing, was the instigator of the Union in the plant; we find, as did
the Trial Examiner, that the respondent's demotion of Golsby from
the emptying to the yard gang was occasioned solely by his union
,activity and -that the petition was a device for concealing the re-
spondent's discriminatory motive.
. Furthermore, in view of the respondent's general attitude toward
the Union, its criticism of Golsby's membership on the Union's' bar-
gaining committee, Golsby's known part in the organization of the
respondent's employees, and the respondent's previous cautious dis-
criminatory demotion of Golsby, we credit Golsby's testimony that he
was discharged on December 20, 1941, and reject Wilson's testimony
that Golsby quit of his o-,vii accord. We further find that the dis-
charge, like the demotion, was a penalty meted out by the respondent
for Golsby's prominent union activity. Even were it the fact, as
Wilson testified, that Golsby was offered a job on the yard gang after
his unsuccessful quest for other employment elsewhere, Golsby's rejec-
tion of such an offer would nevertheless have been justified as a refusal
to acquiesce in his discriminatory demotion from the emptying gang.'
We find, therefore, as did the Trial Examiner, that on October 23,
1941, the respondent demoted Golsby from the emptying gang to the
yard gang, and on December 20, 1941, discharged him and thereafter
refused to reinstate him because of his union membership and activi-
ties, thereby discouraging membership in the Union- and interfering
with, restraining, and coercing its employees in the-exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent described in Section III above,
occurring in connection with the operations of the respondent described`
in Section I above, have a close, intimate, and substantial relation to-
trade, traffic, and commerce among the several States; and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since we have found that the respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
'Hatter of Newberry Lumber h Chemical Company and Timber and Sawmill Workers
Union, Local No. 15, etc, 17 N. L R. B 795, enf'd N L. R B v Newberry Lumber Co,
123 F (2d) 831 (C. C. A 6 ) ; Matter of A Sartorlus it Co, Inc: and United Mine Workers
of Amerca, District # 50, Local #12090 , 40 N. L. R. B. 107.
THE HANCOCK BRICK & TILE COMPANY 937
We have found that the respondent dominated and interfered with
the administration ofThe Company Union and with the formation and
administration of Clay Workers, Inc., and contributed support to them.
We shall therefore order that the respondent withdraw all recognition
from The Company Union and Clay Workers, Inc., as representatives
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 conditions of work, and completely disestablish them
as such representatives. Nothing herein, however, shall be deemed to
require the respondent to vary those wages, hours, seniority, and other
substantive features of ifs relations with the employees themselves,
if any, which the respondent may have established in performance of
any contract with The Company Union or Clay Workers, Inc., as
,extended, renewed, modified, supplemented, or superseded.
We have found that the respondent discriminatorily transferred
Leroy Golsby from the emptying gang to the yard gang, and there-
after discharged and refused to reinstate him, for the reason that he
joined and assisted a labor organization and engaged in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection. We shall therefore order that the respondent offer
him immediate and full reinstatement to his former position in the
emptying gang or to a substantially equivalent position. We shall
further order that the respondent make him whole for any loss of pay
he has suffered by reason of his discriminatory transfer and dis-
charge, by payment to him of a sum equal to the amount which he
would normally have earned as wages from the date of his transfer
to the date of '.the respondent's offer of -reinstatement,. less his net
earnings', during said period.
We have found that the respondent has refused to bargain collec-
tively with the-Union as the representative of its employees in an
appropriate unit. We shall therefore order that the respondent, upon
request, bargain with the Union.
Upon the foregoing findings of fact and upon the entire record in the
case, the Board makes the following : .
CONCLUSIONS OF LAw
1. United Construction Workers Organizing Committee, Local 359,
affiliated with the Congress of Industrial Organizations, The Company
° By "net earnings" is meant earnings less expenses , such as for transportaton, room,
and hoard , incurred by an employee in connection with obtaining work and working
elsewhere - than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590,8 N. L 11 B 440.
Monies received for, w ork perfoi med upon Federal , State , county, municipal , or other work-
ielief projects shall be considered as earnings . See Republic Steel Corporation v. N. L.
R B, 311 U. S.7
938 - DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Union, unaffiliated, and Clay Workers, Inc., unaffiliated, are labor
organizations, within the meaning of Section 2 (5) of the Act.
2. The production and maintenance employees of the respondent,
exclusive of clerical and supervisory employees with the right, to
hire and discharge, constitute, and at all times material herein con-
stituted, a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. United Construction Workers Organizing Committee, Local 359,
affiliated with the Congress of Industrial Organizations, was on
September 29, 1941, and at all times thereafter has been, the exclusive
representative for the purposes of collective bargaining of the em-
ployees in the appropriate unit, within the meaning of Section 9 (c)
of the Act.
4. By refusing to bargain collectively with United Construction
Workers Organizing Committee, Local 359, affiliated with the Con-
gress of Industrial Organizations, as the exclusive representative of
its employees in an appropriate unit, the respondent has engaged in and
is engaging in unfair labor practices, within=the meaning of Section,
8 (5) of the Act.
5. By dominating and interfering with the administration of The
Company Union and with the formation and administration of Clay
Workers, Inc., and contributing financial and other support to them,
the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
6. By discriminating with regard to the hire and tenure of em-
ployment of Leroy Golsby, thereby discouraging membership, in United
Construction Workers Organizing Committee, Local 359„ the'respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the 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. , I
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions -of law,
and pursuant to Section 10 (c) of the National" Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The Hancock Brick & Tile Company, Findlay, Ohio, and its officers;
agents, successors , and assigns , shall :
1. Cease and desist from :
THE HANCOCK BRICK & TILE COMPANY 939-
(a) Dominating' or interfering with the administration of The
Company Union or -Clay Workers, Inc., or with the formation or
administration of any other labor organization of its employees, or
from contributing financial or other support to The Company Union
or Clay Workers, Inc., or to any other labor 'organization of its
employees ;
(b) Recognizing The Company Union or Clay Workers, Inc., as
the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor- disputes, wages,
rates pf pay, hours of employment, or other conditions of employment;
(c) Refusing to bargain collectively with United Construction
Workers Organizing Committee, Local 359, affiliated with the Con-
gress of Industrial Organizations, as the exclusive representative of all
its employees in the unit heretofore found to be appropriate;
(d) Discouraging membership in United Construction Workers Or-
ganizing Committee, Local 359, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization of its employees
by discriminating in regard to the hire and tenure of employment of
its employees or any term or condition of their employment;
(e) 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) Withdraw and withhold all recognition from The Company
Union.and Clay Workers, Inc., as the exclusive representative of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
and other•conditions of employment, and completely disestablish them,
and each of them;
(b) Upon request, bargain collectively with United Construction
Workers Organizing Committee, Local 359, affiliated with the Con-,
gress of Industrial Organizations, as the exclusive representative of
the production and maintenance employees of the respondent, exclu-
sive of clerical employees and supervisory employees with the right to
hire and discharge, with respect to rates of -pay, .wages, hours of erp-
ployment, and other conditions of employment;
(c) Offer to Leroy Golsby immediate and full reinstatement to his
former position in the emptying gang, or to a substantially equiva-
lent position, without prejudice to his seniority and other rights and
privileges;
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Make whole Leroy Golsby for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to the
terms and conditions of his employment and his hire and tenure of
employment, by payment to him of a suni of money equal to that
which he normally would have earned as wages during the period
from, the date of the respondent's discrimination to the date of its
offer of reinstatement, less-his net earnings during such period;
(e) Post immediately in conspicuous places throughout its plant
in Findlay, Ohio, and maintain for a period of 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 has
been ordered to cease and desist in paragraphs 1 (a), (b), (c), (d),
and (e) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2, (a), (b), (c), and (d) of this
Order; and (3) that its employees are free to become or remain mem-
bers of United Construction Workers Organizing Committee, Local
359, affiliated with the Congress of Industrial Organizations, and that
the respondent will not discriminate against any employee because of
membership or activity in that organization;
(f) 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.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision'and Order. '