Wooster Brass Co.

National Labor Relations Board - Board Decisions

Dec 31, 1948

80 N.L.R.B. 1633 (N.L.R.B. 1948)

In the Matter Of WOOSTER BRASS COMPANY and UNITED AUTOMOBILE
WORKERS OF AMERICA, LOCAL UNION No. 813 (A. F. L.)
Case No. 8-C-1880.-Decided December 31, 1948
DECISION
AND
ORDER
On October 24,1946, Trial Examiner Frederic B. Parkes, 2nd, issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto.' The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged, and recommended that the complaint be dis-
missed in respect to said practices. Thereafter, the Respondent filed
exceptions and a supporting brief. Oral argument was requested by
the Respondent and by the Union. This request was denied by the
Board, but with leave to the parties to file supplemental briefs in lieu
of oral argument . No such briefs were filed.
The Board 2 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, but only
insofar as they are consistent with this Decision and Order.
1. We note the negotiation and the execution on or about July 2,
1945, of an informal agreement arrived at by the Respondent and the
Union, under the auspices of a field examiner of the Board, in settle-
ment of certain earlier charges filed by the Union which were revived
' Section 8 (1) (3) and (5) of the National Labor Relations Act, which the Trial
Examiner found were violated, are continued in Section 8 (a) (1), 8 (a) (3) and 8 (a)
(5) of the Act, as amended by the Labor Management Relations Act, 1947.
2 Pursuant to Section 3 (b) of the Act as amended , the National Labor Relations Board
has delegated its powers in connection with this proceeding to a three-man panel con-
sisting of the undersigned Board Members [ Chairman Herzog and Members Houston and
Reynolds].
80 N. L. R. B., No. 245.
1633
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and repeated in part in the charges in the instant case. The charges
settled by the settlement agreement alleged a violation of Section 8
(3) of the Act by the discriminatory discharge of employees Herbert
King, John R. McClain ,3 Carl Braden, and one Proeger, and a violation
of Section 8 (1) of the Act by these and other unspecified acts. In ac-
cordance with the settlement agreement, the Respondent offered rein-
statement with all seniority rights to Herbert King, who refused the
offer, and to John R. McClain, who accepted the offer and returned to
work. The Union withdrew its charges in accordance with the agree-
ment. Thereafter, the Union filed charges in the instant case which
included matters complained of in the settled charges as well as other
alleged subsequent unfair labor practices.
The Respondent, at the hearing and in its brief before the Trial
Examiner, protested the revival of these early charges and their con-
sideration by the Board on the ground that their initial withdrawal
had formed part of the settlement agreement. The Trial Examiner, in
his Intermediate Report, pointed out that the Board may not be
estopped from the subsequent consideration of an alleged unfair labor
practice merely by the withdrawal of the Union's initial charges. He
noted, also, that the Respondent had not granted King and McClain
back pay for the period between their discharges and the Respondent's
offer of reinstatement. He therefore disregarded the settlement agree-
ment and considered all the charges on their merits.
We agree with the Trial Examiner that we are not estopped by the
settlement agreement from the consideration of any of the charges in
the instant case 4 However, it has long been our policy to honor
settlement agreements when they have been reached with the concur-
rence or the approval of an agent of the Board, unless the agreement
has been breached or unless the alleged unfair labor practices have
been continued in such a way that it seems necessary to the Board to
go behind the agreement in order to effectuate the policies of the Act.5
Upon consideration of the entire record, and for the reasons set forth
below, we are of the opinion that the settlement agreement herein
should be upheld.
The alleged unfair labor practices which occurred before the set-
tlement agreement were committed, with a few minor exceptions, by
the official action of the Respondent or by the Respondent's president,
J. C. Schellin. Thus, in 1943, the Respondent published two books
8 Sometimes referred to in the record as John R . McLain.
4 N. L. R . B. v. Prettyman , 117 F. ( 2d) 786, 792 ( C. A. 6).
8 Matter o f Shenandoah -Dives Mining Company, 11 N. L . R. B. 885 ; Matter of Godchaux
Suqars, Inc., 12 N. L. R. B. 568: Matter of Stromberg Carlson Telephone Mfq. Co., 18
N. L. R. B . 526; Matter of Tulsa Boiler and Machine Company, 23 N. L. R. B. 846 ; Matter
of The Ohio Calcium Company, 34 N. L. R. B. 917; Matter of American Bakeries Co., 51
N. L. R. B . 937; see also , Matter of Chrysler Corporation , 54 N. L . R. B. 510.
WOOSTER BRASS COMPANY 1635
of rules and regulations which contained broad rules against solici-
tation of any kind on company property. In November 1943, and in
February 1944, when the Union served strike notices upon the Respond-
ent, President Schellin assembled the employees and made certain state-
ments to them which the Trial Examiner found were violations of
Section 8 (1) of the Act. During the contract negotiations, and
early in the contract term, President Schellin made several state-
ments to the Union contract negotiators which allegedly indicated
hostility to the Union, and administered a sharp reprimand to two
union leaders who joined a strike in the plant in violation of the
union contract. The Respondent's activities before the agreement
also included the discharges of King, McClain and Braden. How-
ever, after the execution of the agreement, no further remarks of an
allegedly illegal character are charged in respect to Schellin; nor was
any further discrimination practiced against King, McClain, Braden,
or, as found by the Trial Examiner, any other employee.e Indeed
the only activities attributable to the Respondent which occurred after
the agreement and which, as we have found below, constituted unfair
labor practices, were the anti-union comments and remarks made
to individual employees by two supervisory employees and the ques-
tioning of a prospective employee as to his union affiliation. In view
of the rather isolated nature of these activities, which for the most
part differ in kind from the alleged unlawful activity practiced prior
to the settlement agreement, and the fact, discussed below, that a
period of 10 months elapsed between the last of the unfair labor
practices allegedly committed prior to the agreement and the execu-
tion of the agreement, during which period the parties were in
amicable contractual relationship, we do not believe it necessary, in
order to effectuate the policies of the Act, to go behind the settlement
agreement.
We shall, therefore, without inquiring into the merits of the Re-
spondent's alleged activities, dismiss the complaint insofar as it alleges
the commission of unfair labor practices before the execution of the
settlement agreement on July 2, 1945.
2. We agree with the Trial Examiner and find that certain activi-
ties of the Respondent, in which it engaged through its supervisory
employees after the execution of the settlement agreement, interfered
with, restrained, and coerced its employees in the exercise of the
O The complaint as amended at the hearing alleged the discriminatory discharges of
Wilson Corbin in September 1945, of E. A. Myers in August 1945, and the discriminatory
transfer of Ira Morr in August 1945. The Trial Examiner , for the reasons set forth
in the Intermediate Report, found that neither these discharges nor the transfer of
Morr was violative of the Act. We agree with the Trial Examiner in this respect and shall
dismiss the complaint insofar as it alleges a violation of the Act in respect to Corbin,
Myers, and Morr.
817319-49-vol. 8-104
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed them in Section 7 of the Act. However, we limit
the grounds for our finding to the following activities :
a. The inquiry of Personnel Manager Masson of Donald Derfer,
upon Derfer's application for employment in March 1946, as to whether
he was a union member.
We have long held that an inquiry by an employer of a prospective
employee concerning his union affiliation constitutes a violation of
Section 8 (1) of the Act'
b. The remark of Personnel Manager Masson to employee Sowers,
upon refusing Sowers a bonus in February 1946,8 that that "is what
your union does for you."
The record shows that Sowers was not, in fact, eligible to receive
the bonus referred to and there is no indication that the Union was
in any way responsible for this fact. In these circumstances, Masson's
statement was wholly designed to mislead Sowers into believing that
the Union was acting, in the matter of bonus payments, in a manner
detrimental to the best interests of the employees.
c. The statement of Foreman Braun to employee Ira Morr in No-
vember 1945 that Morr might be restored to a former and higher rate
of pay if he would "stay away from Scottie ... and Goodman [Union
leaders] and let some of this union stuff alone ..."
Such a statement constituted a threat to refuse to grant Morr a
promotion so long as he continued his union activities.
3. We do not agree with the Trial Examiner in his conclusion that
the refusal of the Respondent to bargain with the Union constituted
a violation of Section 8 (5) of the Act.
The Respondent's admitted refusal to bargain with the Union was
motivated by a belief, based upon an estimate of union strength gained
from the number of union membership dues checked off during the
month of July 1945, that the Union did not, at that time, represent a
majority of its employees within the bargaining unit. The record
shows and the Trial Examiner found that the Respondent was cor-
rect in its belief. The Trial Examiner found, however, that the
Union's loss of majority status was due to the unfair labor practices
of the Respondent and that the Respondent was not, therefore, justi-
fied in refusing to bargain. In reaching this conclusion, the Trial
Examiner relied on all the unfair practices alleged to have occurred
both before and after the settlement agreement. For reasons appear-
'Matter of P. H. Glatfelter Co, 51 N. L. R. B . 780, 789-790, 791, enf'd P. H. Glatfelter
Co. v. N. L. R. B., 141 F. (2d) 631, 632-633 (C. A. 3 ) ; Matter of Gamble-Robinson Co.,
33 N. L. R. B. 351 , 355, enf'd Gamble-Robinson Co. v. N. L R. B., 129 F. (2d) 588, 591
(C. A. 8) ; Matter of Clarksburg Publishing Co., 25 N. L. R. B . 456, 461, enf'd N. L. R. B. v.
Clarksburg Publishing Co., 120 F. (2d) 976, 979 (C. A. 4) with modification not here
pertinent ; See Phelps Dodge Corp . v. N. L. R. B., 313 U. S. 177.
8 The Trial Examiner , in his finding, inadvertently referred to this date as February 1945.
WOOSTER BRASS COMPANY 1637
ing below, we are unable to agree with the Trial Examiner that the
Union's loss of majority status was the result of the Respondent's
alleged unfair labor practices.
The Union won a consent election, conducted by the Board in May
1944, by the large majority of nearly four to one. We cannot believe
that unfair practices committed before the election, which obviously
did not prevent the Union from winning the election and thus estab-
lishing its majority status, could have caused the loss of that status
over a year later. The unfair practices which were alleged to have
occurred between the election and the expiration of the contract on
July 15, 1945, by which time the Union had lost its majority status,
were confined to the period between May and September 1944 and
consisted of anti-union remarks made by President Schellin, together
with a reprimand to two union leaders who joined a wild-cat strike in
the plant. During the remaining 10 months of the contract, between
September 1944 and July 1945, no unfair practices were alleged or
were shown to have occurred. The period was characterized by in-
dustrial peace.- We find no basis for concluding that the activities
of the early period, even if found to be unfair practices as alleged,
were of such a character as to cause defections from the Union after
10 months of intervening peace?
We shall, therefore, dismiss the complaint insofar as it alleges that
the Respondent refused to bargain with the Union within the mean-
ing of Section 8 (5) of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Wooster Brass
Company, Wooster, Ohio, and its officers, agents, successors, and as-
signs shall :
1. Cease and desist from interrogating its employees concerning
their union affiliations, activities, or sympathies, or in any other man-
ner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist United Automobile Workers of America, Local Union
No. 813 (A. F. L.) or any other labor organization, to bargain collec-
Our conclusion that there was no relationship between Respondent's alleged activities
before and during the contract period and the Union 's later loss of its majority status does
not rest upon the character of the alleged activities , but upon the results of the election
of May 1944 , and the long period of industrial peace during the contract term. It is
thus not necessary for us to go behind the settlement agreement to determine whether
these antecedent activities did or did not constitute unfair labor practices.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all of such activ-
ities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act, as guar-
anteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Wooster, Ohio, copies of the notice attached
hereto and marked "Appendix A." 10 Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for thirty (30) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Eighth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges (1) that the Respondent discriminated in
regard to the hire and tenure of employment of Carl Braden, John R.
McClain, Herbert King, E. A. Myers, Wilson Corbin, and Ira Morr,
and (2) that the Respondent refused to bargain with United Automo-
bile Workers of America, Local Union No. 813 (A. F. L.), within the
meaning of the National Labor Relations Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, or in any other manner
interfere with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form labor organizations, to
join or assist UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL
10 In the event that this order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "Decision and Order " the words, "A Decree of
the United States Court of Appeals Enforcing."
WOOSTER BRASS COMPANY 1639
UNION 813 (A. F. L.) or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all of such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act, as guaranteed by Section 7 thereof.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to the hire
or tenure of employment or any term or condition of employment
against any employee because of membership in or activity on behalf
of any such labor organization.
WOOSTER BRASS COMPANY,
Employer.
By -------------------------------
(Representative ) (Title)
Dated ------------------------
NOTE.-This notice must remain posted for 60 days from the date
hereof and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Louis S. Belkin, for the Board.
Messrs. Dwight A. Blackmore and Karl E. Hoover, of Wooster, Ohio, for the
respondent.
Mr. Lloyd N. Loveland, of Wooster, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Automobile Workers of America,
Local Union No. 813 (AFL), herein called the Union, the National Labor Re-
lations Board, herein called the Board, by the Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint dated July 23, 1946 , against
Wooster Brass Company, herein called the respondent, alleging that the respond-
ent had engaged in and was engaging in unfair labor practices affecting com-
merce 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, accompanied by notice of hearing, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint as amended ' alleged,
in substance, that (1) all production and maintenance employees of the respond-
ent, excluding office and clerical employees and all supervisors with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit appropriate
I At the outset of the hearing, the complaint was amended , on motion of counsel for the
Board and without objection by the respondent , to allege that on specified dates the
respondent discriminatorily discharged or laid off Carl Braden , E. A. Myers, and Wilson
Corbin.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act ; 2 (2) at all times since May 16, 1944, the Union has been the exclusive
representative of the employees in the foregoing unit for the purposes of collective
bargaining ; ( 3) the respondent unilaterally and without prior consultation with
the Union ( a) about June 1, 1944, issued to its employees a handbook which,
inter alia , set forth a list of plant rules and provided penalties for the breach
thereof, and at the same time withdrew its previously established rule permit-
ting employees 5 minutes' "leeway " in reporting to work, ( b) since on or about
June 1, 1944, has announced and effectuated wage increases for a portion of its
employees within the unit above described , ( c) since on or about June 1, 1944,
has refused to bargain collectively with the Union through certain representatives
selected by the Union and has insisted on negotiating only with those union
representatives who were also its employees , and (d ) since about September 1,
1944, has assigned overtime work to certain of its employees ; ( 4) since about
October 15, 1945, the respondent has refused to recognize the Union as the statu-
tory representative of its employees ; and (5 ) on or about February 15, 1946, the
respondent promoted and established a committee of employees with whom it
discussed and negotiated changes in working conditions and wages without con-
suIting the Union. In addition , the complaint averred that since about June 1,
1944, the respondent has interfered with, restrained , and coerced its employees
in the exercise of their rights guaranteed them in Section 7 of the Act by (1)
making disparaging remarks to its employees concerning the advantages of
union organization , ( b) threatening to shut down its plant and deprive its em-
ployees of employment if they selected the Union as their representative, (c)
stating to employees at the time of their hiring that there was no need for them
to join the Union , ( d) urging and persuading employees to give up their affilia-
tion with the Union , ( e) offering employees better jobs and higher wages if
they would abandon their affiliation with the Union , ( f) stating to employees
that union membership had caused the loss of their bonus , and (g ) forbidding
employees to speak with union committeemen and union representatives during
working hours . The complaint further alleged that the respondent on or about
February 10, 1044, discharged Carl Braden ; on or about March 13, 1944, dis-
charged or laid off J. It. McClain and Herbert King; about August 29, 1945,
discharged E. A. Myers and Wilson Corbin ; and during August and September
1945, reduced the pay of Ira Morr and transferred him to a less desirable job,
because they engaged in concerted activities with other employees and joined
and assisted the Union for the purposes of collective bargaining and other mutual
aid and protection . The complaint alleged that by the foregoing conduct the
respondent engaged in violations of Section 8 (1), (3), and ( 5) of the Act.
Pursuant to notice, a hearing was held at Wooster , Ohio, on August 5, 6, 8, 9,
and 10, 1946, before Frederic B. Parkes, 2nd , the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner . The Board and the respondent
were represented by counsel and the Union by an official representative. Full
opportunity to be heard , to examine and cross -examine witnesses , and to intro-
duce evidence bearing on the issues was afforded all parties.
2 The complaint 's allegation that "all production and maintenance employees of the
respondent excluding office, clerical , and supervisory employees and all supervisors with
authority to hire, promote , discharge , discipline , or otherwise effect changes in the status
of employees , or effectively recommend such action , constitute a unit appropriate for
collective bargaining within the meaning of Section 9 ( b) of the Act" is interpreted by
the undersigned to mean that the unit set forth in the text is appropriate for collective
bargaining purposes
WOOSTER BRASS COMPANY 1641
At the close of the hearing, the undersigned granted, without objection, a
motion by counsel for the Board to conform the pleadings to the proof as to dates
and minor variances. At the same time, counsel for the respondent moved that
the complaint be dismissed on the ground that the evidence adduced by the
Board failed to sustain the allegations of the complaint. The undersigned
reserved ruling on the motion. It is hereby denied to the extent consistent
with the findings set forth in Section III, below. Upon the conclusion of the
hearing, the undersigned advised the parties that they might argue orally
before, and file briefs with, the Trial Examiner. The Board and the respondent
participated in oral argument and the respondent later filed a brief with the
undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Wooster Brass Company, an Ohio corporation, is engaged in the manu-
facture of fire department supplies at its plant in Wooster, Ohio. During the
fiscal year ending September 30, 1945, it purchased approximately $55,000 worth
of raw material, of which virtually all was shipped to it from points outside
the State of Ohio. During the same period, the respondent's sales totalled more
than $500,000 in amount, and virtually all products sold were shipped to points in
States other than the State of Ohio. The respondent concedes that it is subject
to the Board's jurisdiction.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America, Local Union No. 813, is a labor
organization affiliated with the American Federatiton of Labor, admitting to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events 3
The Union commenced its organizational campaign among the respondent's
employees in April 1943. Soon thereafter the International Molders and Foundry
Workers Union of North America, A. F. L., and the International Association
of Machinists, which was then affiliated with the American Federation of Labor,
also sought to enlist the membership of the respondent's employees eligible to
membership in the respective craft organizations. A jurisdictional dispute
ensued from the rivalry of these unions in organizing the employees, though the
respondent at all times was willing to consent to an election in a unit of all
production and maintenance employees. In July 1943, a portion of the respond-
ent's employees engaged in a work stoppage because of the dismissal of a union
member. In 2 days' time, the strike was settled by the reinstatement of the
employee in question. Again in August 1943, there occurred another work
stoppage of approximately 3 days' duration, caused in part by various grievances
which were ultimately settled.
About this time, the Union filed with the Board a petition for investigation
and certification of representatives. On September 29, 1943, the Board dis-
s Unless otherwise indicated, the findings in this section are based upon uncontroverted
and credible testimony.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missed the petition for the reason that the bargaining unit urged by the Union
was not appropriate.4 Not long thereafter, the International Association of
Machinists, A. F. L., filed a similar 9 (c) petition, which was withdrawn upon
the intervention of the Union.
On August 25, 1943, the respondent for the first time published its plant rules
in a booklet entitled "Factory Rules and Regulations" and gave a copy of the
booklet to each employee in September 1943. Among the conduct prohibited by
the rules is the following:
Soliciting of memberships, pledges, or subscriptions-the collecting of
money-the circulation of petitions-the conducting of any outside business
on company property, unless authorized by management.
In October or November 1943, employee Scott Corbin was told by Foreman
Braun that, pursuant to orders from President J. C. Schellin, Corbin was to be
transferred from an assembly machine to another type of machine. Corbin
was annoyed by the change in duties, refused to make the transfer, and went
home. However, a few hours later he returned to the plant and, according to
his testimony, which the undersigned credits, "jumped Mr. Schellin why he
had me taken off of this machine. He accused me of being an agitator. He said
if I would tend to my own business there wouldn't be any Union around there
... He said . . . `It's nothing but Communist . . . You act like you are over
in Russia.' " 5 Schellin, however, revoked the transfer and Corbin remained on
his customary machine.
About November 10, 1943, the respondent received the following notice, dated
November 8, 1943, and filed by the Union with the Board pursuant to the War
Labor Disputes Act :
In accordance with the War Disputes Act this thirty day notice of inten-
tion to strike is hereby given by the employees of The Wooster Brass
Company, located in Wooster, Ohio, who are members of Local Union 813 of
the International Union, United Automobile Workers of America, affiliated
with the American Federation of Labor.
The reason for this action is that after many trying months the employees
in the above named plant have failed to establish a bargaining agent, due
to the intervention of the International Association of Machinists and the
International Molders and Foundry Workers Union of America, who can
offer no evident proof that they represent anything like even a minority
within the Wooster Brass Company plant.
Upon receipt of the strike notice on November 10, J. C. Schellin, president of
the respondent, assembled the employees during working hours and addressed
them. Schellin's version of his speech to the employees is as follows :
I explained to the men before I talked to them that I had never been asked
to do a job such as confronted me in my entire life as did confront me because
of the receipt of this strike notice.
I attempted to read the strike notice, but I was so nervous that I could
scarcely hold the paper in front of me sufficiently quiet where I could even
read the printed matter on it, let alone the typed matter.
4 Matter of the Wooster Brass Company, 52 N L. R. B 951.
5 The findings in this paragraph are based upon the uncontroverted testimony of Corbin.
Although Schellin and Braun were called as witnesses, they were not interrogated in
regard to this incident.
WOOSTER BRASS COMPANY 1643
I did ask if someone else would please read it. And as I recall it, someone
did read a part of it, but at any rate either I or someone else read the notice
to our entire employee group.
I then stated that there was not a thing that I as president and general
manager of the Company could do about it excepting to leave the matter
entirely up to our employee group. I reminded them of the various meet-
ings we had had indicating the serious conditions with which our armed
forces were confronted, and I asked them, or anyone in the group, to sug-
gest ways and means of averting the strike.
I don't believe that there were over 15 men within the reach of my voice
wwb did not attempt to make some form of suggestion. Some of the state-
ments that were volunteered were very threatening. Some of the men pro-
posed that I authorize them to forcefully eject from our plant those who
were responsible for the strike notice. I made the statement then that there
would be no violence, that this was a serious matter and required men to
think twice before they spoke.
About that time some of the more level headed men thoroughly agreed, and
I suggested that ways and means be found amongst our own employee group
of settling this strike matter without blowing up.
My recollection is that I asked the men to indicate by a raising of their
hands what their attitude was towards the strike by indicating whether
or not they favored going out on the strike. I am not sure whether or not
they favored going out on the strike. I am not sure whether or not
all of the men had understood me, because there was a conglomeration of
hands which made it impossible for me to ascertain whether it was an indi-
cation that they were going on a strike or whether they were not going
on a strike. And at that time someone proposed that it wouldn't mean any-
thing anyway, regardless of how they voted by the show of hands.
I then asked just how, then, could I ascertain the attitude of our em-
ployee group to comply with the request of the Navy and Army to inform
them as to the attitude taken by our employee group. Then, someone pro-
posed the taking of a ballot. And I believe that I then indicated that that
might be in violation of some government regulation, because the Company
was not authorized to take any votes.
It was suggested that these little slips would merely indicate by a yes or
no on the strike question. Again at that time there was considerable argu-
ment and by personal reference, Scott Corbin objected to the voting, and, I
think, several others, and I again pleaded for some means of giving the
Company an indication as to what the majority of the employees were going
to do about the strike vote.
I would say that in a matter of five or ten minutes, whether by rise of
hands or by slips of paper,' it was indicated to me that the majority of our
employees would continue to work, and I went back into my office and con-
sidered the matter closed.
Q. During that speech that you just referred to, testimony has been ad-
duced in this hearing that you stated the plant would close down?
A. Yes, I did make that statement, but in this manner : I informed them
of the statements made to me by the government officials to the effect that
there was no alternative for them in the event of a strike but to cancel
6 Other testimony establishes that paper for balloting was distributed by employee
M. Reed.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their orders with us and to acquire or confiscate through legal channels the
patterns , tools and jigs that were in our plant made and designed for our
critical war production items. And I stated that were we once removed
from this procurement approval that there would only be one alternative and
that would be for the Company to cease operations.
I also reminded them of the fact that it had been a most difficult problem
to obtain sufficient help to operate our plant, and that even though we were
again to obtain approval that I questioned whether or not we could obtain
sufficient help to again set up mass production programs.
In addition, according to the credible testimony of several witnesses for the
Board, Schellin stated that he would not "have outside dictation coping in
telling him how to run his shop."'
The same evening, Schellin assembled the employees on the night shift and
talked to them concerning the strike notice. According to the undenied and
credible testimony of employee John R. McClain, Schellin stated in regard to
the strike notice, "Anybody that did this to me . . . are nothing but racketeers
and Communists and they shouldn't be around. They are not American," in-
quired if the employees desired to "leave an outsider come in and dictate to him,
how to run his affairs," and stated, "If you do that we'll have to close the place
up . . . I have my property and all my money involved in this place and I will
just have to close it up." The meeting concluded by Schellin's requesting the
employees "to compromise in that predicament and sign a slip of paper and vote
the strike out." Employee Joe DiScipio distributed slips of paper among the
employees to sign and thereby indicate that they would "not .. . go out on
strike."
On November 30, 1943, the respondent published a second handbook of rules
and regulations winch were distributed to the employees the following month.
In these rules, "Soliciting on company property without permission" is forbidden e
The first strike notice was withdrawn and a second strike notice, dated Febru-
ary 8, 1944, signed by employee Herbert King, was filed with the Board by the
Union. The notice stated that it had been filed because the International Asso-
ciation of Machinists had failed to comply with the agreement made by the three
unions engaged in the jurisdictional dispute over the employees of the respondent,
whereby the first strike notice was withdrawn on the understanding that William
Green, president of the American Federation of Labor, would resolve the dispute
T On cross -examination by counsel for the Board , Schellin denied that he had ever said
that he would not be dictated to by outsiders, but admitted that he might have referred
to outsiders In view of Schellin 's admission that he referred to outsiders as well as his
admitted statements made to the employees , the undersigned does not credit Schellin's
denial but finds that he made the statement attributed to him by the Board witnesses,
referred to above.
8 The findings as to the date of publication and distribution of this booklet, as well as
the earlier book of rules issued in September 1943, are based upon code numbers on each
booklet showing the date of publication and upon the testimony of Personnel Director
Joseph 0. Masson , Superintendent Earl J Housekeeper , and Foreman Carl Braun . Certain
employee witnesses for the Board, including Howard Goodman, who was member of the
Union's bargaining committee, denied that they had ever seen a copy of either rule book.
The undersigned cannot credit their testimony in this regard The evidence to the contrary
is more plausible and convincing In addition Lloyd Loveland, regional representative
of the Union, admitted that although the second rule book was issued prior to the consent
election, hereinafter discussed, the Union's bargaining committee discussed the rules and
regulations contained therein and it was agreed that the rules and regulations should not
be embodied in the contract subsequently negotiated between the Union and the respondent.
Goodman was a member of the bargaining committee ; he therefore must have had occasion
to peruse the booklet at least once.
WOOSTER BRASS COMPANY 1645
and that in the event that the jurisdictional award was made in favor of the
International Association of Machinists and the International Molders and Foun-
dry Workers of North America, these organizations would file with the Board a
petition for investigation and certification of representatives. The jurisdictional
claims of these two organizations were recognized, but no petition was filed and
the Union filed the second strike notice "in order to determine as to whether or
not we the employees of the Wooster Brass Company, as per the Wagner National
Labor Relations Act, are entitled to be members and be represented by a bonafide
labor union."
A similar mass meeting of the employees was addressed by Schellin about
February 10, 1944, upon receipt of this notice. In regard to the meeting, em-
ployee Scott Corbin testified credibly and without contradiction as follows :
[Schellin] come out with a paper in his hand and he called all the people
together that worked there in the shop Well, he was awful nervous, and he
held up a peice of paper and he said, "This is a strike notice the Union give
me . . . If they are going to give me these strike notices I will just have to
close down the shop and go out of business." . . . Then, it ended up with a
fellow by the name of Mort Reed, he said to Mr. Schellin . . . "Let's have an
election and see whether we want a Union or whether we don't want a
Union." And Mr. Schellin told him, "All right." So, Mr. Reed, he goes in the
office, and when lie come back out lie had some papers and lie went and
handed it out to some of the employees, and some of them went like there
was a mark on it. I don't know who won the election.
Earl J. Housekeeper, the respondent's vice president in charge of production and
plant superintendent, also testified that a meeting of the employees was held
after the receipt of the second strike notice and addressed by Schellin and that
the respondent's position was the same as that taken in the meeting of November
10, 1943.
On the same day, February 10, 1944, employee Carl Braden was discriminatorily
discharged! On March 11, 1944, the respondent discriminatorily terminated the
employment of employees Herbert King and John It. McClain.1°
On May 16, 1944, the Board conducted an election among the respondent's em-
ployees, pursuant to a consent election agreement theretofore entered into by
the respondent, the Union, and representatives of the Board. The result of the
election was as follows :
Approximate number of eligible voters----------------------- 73
Valid votes counted----------------------------------------- 64
Votes cast for Wooster Brass Workers Union, unaffiliated------ 0
Votes cast for the Union------------------------------------ 47
Votes cast against participating unions----------------------- 17
Challenged ballots------------------------------------------ 1
Void ballots------------------------------------------------ 3
On May 22, 1944, the Regional Director for the Eighth Region issued a Consent
Determination of Representatives, finding and determining that the Union was
the statutory representative of the respondent's employees.
According to the undenied and credible testimony of employee Clair Funk,
Schellin stated in a speech to the employees shortly after the election that "if the
" The discriminatory. discharge of Braden is hereinafter discussed.
10 The cases of King and McClain are discussed below.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop was run-run by or through Union activities, or with Union help, that some
of the families of the employees might suffer, especially the larger ones."
Shortly after May 22, 1944, a series of bargaining conferences between repre-
sentatives of the respondent and the Union was held at various offices, other than
the respondent's plant, in Wooster. The respondent refused to meet on the
respondent's property to discuss contract negotiations or grievances with Inter-
national Representatives of the Union who resided elsewhere than Wooster,
though it met with them in various law offices and other places in downtown
Wooster and although it appears that at no time did the respondent refuse to
meet with Lloyd Loveland, regional representative and business agent of the
Union, residing in Wooster 31
At one of the early conferences, Schellin said to Carl Smigel, a regional director
of the Union, "You fellows come from out of town and come in here with blood
on your hands and come into this town to take these people's money and we can't
see why we have to deal with people of that sort." " At a meeting in the plant
office about the middle of 1944, Schellin stated in the presence of Loveland and
three employee committeemen that "the outsiders were nothing but a bunch of
gangsters and . . . had blood on [their] hands.""
On July 15, 1944, the respondent and the Union entered into a collective bar-
gaining contract for the term of 1 year with a provision for its automatic renewal
unless either party gave notice to the other of intention to terminate the agreement
30 days before its renewal date. The contract contained the following provisions
governing union security and dues check-off :
All employees who are now or who become members of the Union must
continue to be members of Union during the life of this contract. The
Union, its officers and members, shall not intimidate or coerce employees into
joining the Union... .
The Company agrees to take from each Union employee's first monthly pay
all dues and assessments due the Union, upon presentation of a sworn certi-
fied list of Union employees by the Union Secretary and authorization for
said deductions to be signed by employee, and shall pay such dues and assess-
ments of the Financial Secretary of Local Union No. 813 on or before the
fifteenth (15th) day of the month following said deduction.
Shortly after the execution of the contract, copies thereof were printed and
distributed by the respondent, at the Union's request, to the employees. As an
addendum to the contract, the following appeared as the final page of the pam-
phlet containing the contract :
To the Wooster Brass Company:
I hereby signify I am a member of International Union, United Automobile
Workers of America, affiliated with the American Federation of Labor,
n The reason given by Schellin for taking this action was that during the period of the
jurisdictional dispute between the three competing unions an unpleasant altercation
occurred at a conference of International Representatives of the unions in the respondent's
offices at the plant. To avoid further disturbances, the respondent insisted that meetings
with the International Representatives be held at offices in Wooster away from the plant.
12 This finding is based upon the testimony of Smigel. In regard to this colloquy
Schellin testified, in respect to the phrase "blood on your hands," that "That phrase is
not one that I think I had ever used, but I am willing to concede that as a result of the
atmosphere that prevailed at this meeting which I have just described that I may have
used the expression, but I still feel that I used the phrase of 'dirty , hands.' "
11 This finding rests upon the uncontroverted testimony of Loveland. Schellin was not
questioned with regard to this meeting.
WOOSTER BRASS COMPANY 1647
represented by Amalgamated Local Union No. 813, and authorize you to
deduct from my wages all dues and assessments due the Union, upon presen-
tation by the Union Secretary the amount due the Union and remit said
sum to the treasurer of Local No. 813 U. A. W. A.-A. F. of L. This authori-
zation is to remain in force until withdrawn in writing by me.
Signed-------------------------- Date -------------------------------
Witness------------------------- Clock No.--------------------------
The Union protested the inclusion of the authorization form for dues deduction
in the contract booklet and the matter was discussed but the Union did not press
the matter.
In late August 1944, at a meeting of employees held during working hours,
Schellin stated, according to the undenied and credible testimony of Luther
Pigman, at that time employed by the respondent, that, in reference to the shop,
Schellin "had a nice little home there at one time, and the Union come along and
had it broke up, broke their little home up."
On September 13, 1944, somewhat less than 50 percent of the respondent's em-
ployees engaged in a work stoppage for 10 days. During the course of the strike,
Foreman Carl Braun urged employee Clair Funk, who was on vacation at the
time the strike started, to return to work and stated, according to the uncon-
troverted and credible testimony of Funk, that "after the Union was in in some
cases they didn't make as much as they did before they came in."
Upon the termination of the work stoppage, all strikers were reemployed.
However, when employees Howard Goodman and Scott Corbin, leaders of the
union movement, entered the plant, they found that their time cards had been
removed from the rack and were instructed to proceed to the offices of President
Schellin. The resulting individual interview of the two employees by Schellin
and Joseph Masson , who was the respondent's assistant treasurer and personnel
manager, is best revealed by the following testimony of Schellin :
I had a copy of our Union contract in my hand and I handed it to them
and I asked them whether they had read that contract. I was informed
they certainly had. . . . My answer was, if they had read the contract
was their conscience clean in having been responsible for calling out men on
a strike during such a critical war period? I made the statement that such
actions sounded Communistic to me, and I informed both of them that if
they wanted their time that in spite of the critical need for help, and es-
pecially their experienced help, that we would give them a release. Both
of them informed me that they wanted no release. And I said, "That is fine.
But we cannot hope to win this war if we have these continual bickerings
and dickerings amongst ourselves," and that if they did go back to their
machines that I was going to insist that they remain at their machine posts
and work diligently at the work for which they were being paid with Uncle
Sam's money.
In addition, Schellin testified that the following occurred in his interview with
Goodman :
I made this statement to him, after having invited him to leave our em-
ployment to avoid these difficulties, that it was the intention of the Company
and that purchase had been made of a machine which had embodied in its
construction the so-called Fox attachments, and that we would in the near
future, and that I believed possibly they had already done so, divert the
work that had been done on his machine to this new machine. And I then
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked with someone who had told me that the machine was vacant, the
work had been transferred to the other machine. . . . After I told
Mr. Goodman that, then he went out into the shop and he came in and told
me that there was a man working on his machine. I immediately called in
Mr. Braun, because I had based my statements largely on his statements to
me, and I asked Braun whether someone else was working on the machine,
and he said, yes, that . . . some job had come up on which he had
used this machine. I most profusely apologized to Mr. Goodman for having
made a misstatement.
Corbin returned to work following the interview, but Goodman did not resume
his duties until the next day.
In the latter part of 1944, the Union and the respondent entered into negotia-
tions for job classifications of all employees. During the course of these dis-
cussions, the Union brought up the question of merit increases which had
theretofore been granted by the respondent since the execution of the contract,
pursuant to General Order 31 of the National War Labor Board. Question arose
as to the respondent's interpretation of the amount and manner of granting
such increases. Representatives of the Union and the respondent called upon
the Cleveland office of the National War Labor Board for advice. The re-
spondent's contention as to its administration of General Order 31 raises was
upheld. At the Union's request, the respondent furnished a list giving the name
of each employee, his job classification, his wage rate, and the minimum and maxi-
mum wage rate range for his job classification. The respondent further enumer-
ated those employees who had received merit increases and the amount of such
increases, and gave information as to those employees who had not received
increases or had not received the full amount to which they were eligible. After
a reconsideration of all merit increases previously given and negotiation with
the Union on the subject , an understanding was reached on January 4, 1945,
as to those employees who were eligible for merit increases but who had not
been granted them previously and the increases given as a result of this agree-
ment were made retroactive in effect to October 1944. After having reached
agreement on the general policy for governing merit increases, the respondent,
according to Masson, granted other individual increases to employees without
negotiation with the Union during the contract term, and the Union voiced no
objection thereto 14
It appears that toward the end of the contract term the Union requested the
respondent to furnish it a copy of the merit increase budget for the respondent's
fiscal year, i. e. from July 1, 1944, to the date of the request. The respondent sub-
mitted a copy of such budget, summarized according to accounting procedures,
for each 2-week period between January 21, 1945 and May 13, 1945, and showing
that the amount available for such increases had been practically exhausted on
May 13, 1945.16
14 The findings in this section are based upon the mutually corroborative testimony of
Loveland and Masson , who were in agreement as to all pertinent facts. Masson , however,
placed the dates of the negotiation somewhat earlier than did Loveland . Since documentary
evidence in relation to the negotiations concerning merit increases substantiates the dates
given oy Loveland , the undersigned has relied upon his testimony to the effect that the
discussions concerning job classifications and merit increases occurred during the latter
part of 1944 and early in 1945.
15 The record does not indicate when the Union requested this information . However,
in view of the form of the table presented , as well as the explanation of the method of
its preparation , it is clear that the budget submitted could not have been tabulated until
after May 13 , 1945. The undersigned infers and finds that the request for the informa-
tion was made subsequent to that date.
WOOSTER BRASS COMPANY 1649
About July 11, 1945, the Union submitted to the respondent for its considera-
tion a proposed collective bargaining agreement for the ensuing year. The
Union insisted in the negotiations which followed that the proposal was not a
new contract but was to be considered as merely making "changes" in the original
agreement executed on July 15, 1944. The respondent, however, deemed the
proposal to be an entirely new agreement A comparison of the proposal with
the original contract clearly justifies the position assumed by the respondent.
The proposal varied greatly in every respect from the old contract ; the language
of scarcely a single provision of the original contract was carried over in the
proposal. The provisions of the proposal were much more extensive and de-
tailed than the original and covered numerous matters not mentioned in the
original. However, the major changes wrought by the variance between the
original and the proposed contracts were that the new contract provided for a
closed shop, in contrast to the modified maintenance-of-membership provision of
the original contract, and the bargaining unit in the proposal was changed so as
to include clerical and plant-protection employees, who were excluded from the
original bargaining unit. The undersigned accordingly finds that the proposal
submitted by the Union was for a new contract and not merely for amendments
or changes in the original contract.
Numerous collective bargaining conferences were held between July 15 and
October 1945. Throughout these negotiations the respondent expressed doubt as
to the Union's majority status, inasmuch as the monthly check-off of dues re-
vealed that a majority of the employees within the unit were union members only
in the months of December 1944 and May 1945. The respondent therefore de-
manded proof of the Union's claim to be the majority representative and urged
that an election be held. The Union on the other hand asserted that many
members paid their dues directly and that the monthly check-off list did not
reveal the complete extent of the Union's membership. However, at no time
did the Union meet the respondent's request for proof of its majority status
or agree to a consent election. The respondent was willing to recognize the
Union as the collective bargaining representative of its members and urged the
Union to submit such a contract. The Unioh continued, however, to demand
exclusive recognition.
A second proposal in the form of a letter dated August 14, 1945, was submitted
by the Union. This proposal was drafted in the form of "changes" in the 1944
contract. However, the "changes" were extensive, leaving only five sections of
the original contract unaltered.
Negotiations for a contract terminated upon receipt by the Union of the re-
spondent's letter, dated October 29, 1945, and reading as follows :
In answer to your notice refusing to submit a proposal as agreed to at our
last meeting, to the Wooster Brass Company of a membership only contract
and your spoken desire to negotiate on your previous proposal incorporating
the "closed shop" provision, we wish to inform you that, because of our
stated and continued belief (supported by evidence) that your organization
does not represent a majority of our employees in the appropriate bargaining
unit, we will not bargain with your organization as the exclusive represen-
tative of the employees in said appropriate bargaining unit.
Upon your showing that you do represent a majority of the employees
in the appropriate bargaining unit, we shall negotiate with you as exclusive
bargaining agent as provided by law.
The Company will cooperate with any reasonable proposal to determine
the desire of the employees.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 30, 1945, the respondent distributed for the last time to all
employees an annual bonus, amounting in each instance to 5 percent of an
employee's annual earnings . These payments had customarily been made
each year since the respondent commenced operations. On September 30, 1945,
the respondent announced the creation of a profit-sharing plan to supplant the
annual bonus payments. Neither the distribution of bonus payments nor the
institution of the profit-sharing plan was discussed with the Union.
Employee Lee Sowers voluntarily terminated his employment with the respond-
ent on October 26, 1945, but later changed his mind and upon application was
rehired November 5, 1945. When he applied to Foreman Braun for reinstate-
ment, a conversation ensued during which Braun said, according to Sowers, "if
they had a Company Union there they thought the rest of the boys would
belong." 30
On November 9, 1945, the Board declined to take action upon the respondent's
Petition for Revocation of Certification of the Union theretofore filed, for the
reason that the facts of the case did not meet the requirements of the Board's
Rules and Regulations.
Sowers testified that toward the end of 1945, he asked Joseph Masson, the
respondent's personnel manager and assistant treasurer, if Sowers would get
his "bonus" and that Masson replied, "No. That's what your Union does for
you." Sowers' testimony was corroborated by employee Wilson Corbin who
testified that he overheard the conversation between Masson and Sowers.
According to Corbin, the conversation occurred in February 1946. Masson denied
that he had ever had such a conversation with Sowers in regard to a bonus.
He admitted, however, that prior to the distribution of the first payment under
the profit-sharing plan on February 15, 1946, Sowers asked him if Sowers would
receive a payment and that Masson replied, "Lee, you have elected to quit our
employ. You done that of your own free will. You severed yourself from our
payroll, and under the provisions of the profit sharing plan as set up you are not
eligible to participate in the profit sharing." Masson denied that the Union
was mentioned in the conversation. In weighing the testimony on this issue,
the undersigned has considered the fact that Sowers testified in respect to a
"bonus," that he had received a bonus payment in September, that the dates
given by Sowers and Corbin for the conversation are not the same, and that
Masson was a most intelligent and accurate witness, on whose testimony the
undersigned has heavily relied on other issues. However, in view of other
anti-union statements and conduct on the part of the respondent previously
found, and of the statements made by Masson to applicants for employment,
hereinafter discussed, the undersigned credits the testimony of Corbin, finding
that the incident occurred in February 1945, that Sowers, in his testimony, was
referring to the profit-sharing plan payment, and that Masson made the remark
attributed to him by those witnesses.
For two relatively short periods of time late in 1944 and again late in 1945,
it became necessary in order to overcome a production problem to operate one
lathe of a particular type, the only one of its kind in the plant, on a 24-hour day.
The two employees who customarily operated the lathe in question on the day
and night shifts respectively were each assigned a 12-hour shift. Both were
16 Braun testified that he never had a conversation with Sowers about the Union and
did not recall ever discussing any union with Sowers . In view of the other anti-union
statements found to have been made by Braun, as well as the undersigned 's observation
of the witnesses , the denial of Braun is not credited . The undersigned credits Sowers
and finds that Braun made the statement attributed to him by Sowers.
WOOSTER BRASS COMPANY 1651
union members. In making this assignment, the respondent did not consult with
the Union." Employee Howard Goodman, a member of the Union's shop com-
mittee, late in 1944 or early in 1945 asked Superintendent Housekeeper, "Why
that nobody else got any of that 12 hours a day." Housekeeper replied, accord-
ing to Goodman's undenied and credible testimony that "it was none of
[Goodman's] business."
Employee Goodman testified that early in 1946 he had an occasion to talk with
employee Corbin during working hours about a defective casting and that when
Goodman returned to his machine, Foreman Braun "jumped on me and informed
me that we weren't allowed to talk to committeemen. And he also informed me
that if I got tough about it he had orders to take mti in the office and get me my
time." According to Goodman, there was no general rule forbidding employees to
talk on company property or to consult committeemen. In the same vein is
employee Funk's testimony regarding a similar incident in April or May 1946, as
follows : "I had gone to Mr. Goodman's machine to find out about some work, and
I think Mr. Braun said something about I wasn't supposed to talk to any commit-
teemen in the shop during working hours." Braun admitted having terminated
conversations between Goodman and Funk and between Goodman and Corbin,
because "it was against the Company rules and regulations for any man to stand
around and talk and carry on a conversation away from his machine , holding up
production." As to the Goodman-Funk colloquy, Braun testified, "I told them both
that that was no place to carry on any union activities of any kind, for Goodman to
go back to his machine, and if Funk had any more complaints to put in, to put
them in after working hours or during noon hours." As to the Goodman-Corbin
conversation, Braun admitted having told Goodman that, "if he didn't like it I
would take him in and get his money any time he felt like it." While the re-
spondent's rules and regulations governing employee conduct in the plant prohibit
solicitation for the Union, neither the rules and regulations nor the contract
between the Union and the respondent specifically prohibited employees from
otherwise talking about union affairs during working hours.
Employee Donald Derfer testified that when he was interviewed for employment
in March 1946 by Personnel Manager Masson , the latter asked him if he were
"a union man" and said, "You don't have to join the Union. There is no Union
in the shop here. There might be some of the boys ask you to join it, but you don't
have to." Although Masson denied that he had made the statements attributed
to him by Derfer, he admitted that he made the following statement to Derfer, as
well as to all applicants for employment :
We have Union employees in our plant. We also have non-Union employees
in our plant. It has been brought to our attention that you no doubt will be
told once you start to work for us that you must join the Union to work for
us. . . . In so far as we are concerned you can join if you wish. You do
not have to join if you do not want to. There is nothing compulsory about
it. This is not a closed shop.
In view of Masson ' s admissions and the entire circumstances , the undersigned
credits Derfer and finds that Masson made the statements as testified to by Derfer.
u Foreman Braun testified that Housekeeper and Masson discussed the matter of overtime
on the machine with the Union . Housekeeper and Masson were not questioned as to this
alleged discussion . Goodman denied that the matter was negotiated with the Union. In
view of the entire record , as well as his observation of the witnesses , the undersigned does
not credit Braun.
817319-49-vol. 8-105
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 8, 1946, Schellin assembled the employees and told them that since the
cost of living was steadily rising, the employees merited an increase in wages. He
requested that the employees select a committee to discuss the matter with him.
He retired from the meeting at this point and the employees of each department
selected a representative to form the committee suggested by Schellin. A commit-
tee of 16 employees, including Foreman C Green, was thus selected and met with
the respondent to discuss the wage increase, as well as other collective bargaining
matters such as working conditions and the profit-sharing plan. Of two alterna-
tive wage increase plans the committee made its choice and it was agreed that a
general wage increase would be made effective on April 15",1946. The increase was
announced to all employees by letter from the respondent on April 16, 1946.
On May 20, 1946, the respondent sent to each employee a mimeographed let-
ter signed by President Sehellin, reading in part as follows:
Recently the company was notified by the National Labor Relations
Board that charges had been filed against it, alleging
1. That the company had coerced. intimidated and restrained its em-
ployees in their rights to form, join or assist a-labor organization for the
purposes of collective bargaining with the company
2 That the company had refused to bargain with the repiesentatnes
selected by a majority of the emplo^ces in the appropriate bargaining
unit
I, and I'm speaking for the ofpiceis, diiectors, and supervisors of our
company, want to state again that this company ?rill not discriminate
against, coerce, intimidate or restrain any employee because of his nmein-
bership in a labor organization and that this company will follow the spirit
and letter of the law in regards to bargaining with the proven representa-
tives of the majority of the employees in the appropriate bargaining unit.
That has been, is, and always will be our attitude and we have so in-
formed the National Labor Relations Board.
All of us that work for this company from the front office to the back
door are Americans and, I believe we all individually can make our own
decisions. Everyone has the right to his own convictions and belief and
I and those of my associates in the management and of this company have
not, will not now or in the future discriminate against anyone for exercis-
ing this individual American right.
On July 29, 1946, the employees of the buffing room engaged in a work stop-
page in which employees from other departments joined. In all, 28 employees
engaged in the strike.. During the course of the strike, Loveland, regional iep-
resentative of the Union, telephoned Personnel Manager Masson and asked
if the respondent would meet with the Union in an effort to settle the strike.
Masson replied that the respondent would not consult with the Union but would
meet with the strikers themselves. On July 30, 1946, Sehellin, Masson, and
Housekeeper went to the strikers on the picket line to ascertain the cause of
the strike. A complaint on a seniority question was discussed. Then, accord-
ing to Schellin, the following occurred :
I made the proposition that in the interest of getting back all
of our employees that I would permit any employee to return back to his
job provided lie got there by noon time. And I asked Mr. Goodman
whether he would have any way of getting word to all of our employees.
He said yes, he would, he was going right down to a meeting at which that
information would be disseminated. After returning to the office, checking
WOOSTER BRASS COMPANY 1653
our list of employees, we discovered that there were quite a number of men
living quite some distances from the plant, so we extended the time so
as to gi% e an equal opportunity for all of the employees to come into the
plant and report for work within the limitation that had been set. And
my next knowledge on the matter was that the boys were back to work,
and we are now working peacefully.
Following the above conference, Foreman Braun on July 30, 1946, called the
homes of employees Russell Barnes and Ralph Hider and left messages for
them to the effect that Goodman had informed the respondent that the strikers
would return to work by noon and Braun desired to know if these emplo} ees
would return to work at that time. The strike apparently ended on July 30
or 31, 1946.
B. The discriminatory discharges
1. Carl E. Braden
Braden was employed by the respondent late in 1941 as a turret lathe operator.
He joined the Union early in its organizational campaign and, pending election
of permanent officers, served as temporary recording secretary from May 1943
until his discharge on February 10, 1944. The incident which served as a pre-
text for his discharge occurred on Sunday, February 6, 1944. On Saturday, Feb-
ruary 5, Braden and Paul Evans, classified as a job-setter or set-up man but
hereinafter found to be a supervisor, had spent the evening together and it was
agreed that Braden, who drove his automobile to work, would call for Evans at
his home the next morning and give him a lift to work. Braden testified that he
stopped at Evans' home about 6: 20 a.m. on February 6 but was informed by
Evans' wife that he "should ring Mr. Evans' card ; that he would be right over,"
as "it was just a short distance from his house to the shop." When Braden ar-
rived at the plant, he punched in both his and Evans' card, but Evans did not
appear for work until around 10 o'clock. On the other hand, Evans testified that
when Braden stopped on Sunday morning, Evans "wasn't able to go to work.
So, my wife went down and told him to go on and that I would be in later."
Evans denied that he instructed his wife to ask Braden to ring in Evans' time
card. According to Evans, his late arrival was noticed by Foreman Braun, who
changed the time card to show the correct time Evans arrived. Of the tw.i wit-
nesses, Braden impressed the undersigned as being the more forthright and
credible. Moreover, his version of the incident is the more plausible, for it
seems unlikely that he would have punched in Evans' card unless so instructed.
In addition, according to the undenied testimony of Braden, it was a common
practice for supervisors to request employees to ring supervisor's time cards at
the end of the day. The undersigned therefore credits Braden's testimony as to
this incident and finds that Evans directed him to punch Evans' card.
Four days later, on Thursday, February 10, 1944, Evans and Braden were
summoned to the office of President Schellin and were questioned with regard to
the card-punching incident. Braden admitted having punched in Evans' card on
February 6, pursuant to the directions relayed by Mrs. Evans. Evans denied
that Braden had been so instructed. The respondent summarily discharged
Braden.
The respondent contends that the discharge of Braden was justified since be
had infringed a plant regulation regarding the ringing in of time-cards. The
rules and regulations published and distributed by the respondent in August-
September 1943 provided that "ringing another employee's time card or having
another ring your card" merited "discharge on first offense." The second book
1
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of rules and regulations distributed in November-December 1943, likewise cau-
tioned in one section, "Do not tamper with or punch a fellow employee's card."
Another section stated that "Willfully punching in or out the time card of another
worker" is cause for "dismissal or suspension."
Standing alone, the respondent's action in regard to Braden might not be cen-
sorable, but after a careful consideration of all the circumstances, the under-
signed is of the opinion that Braden's discharge was discriminatory. It is to be
noted that no action was taken by the respondent until February 10, 1944, 4 days
after the incident in question, and until the day that the respondent received the
Union's second strike notice. On that day, Schellin assembled the employees,
conducted a ballot to determine whether they desired the Union, and made re-
marks which, as hereinafter found, constituted interference and coercion with
their rights guaranteed them by Section 7 of the Act. Furthermore, Braden was
subordinate to Evans and the rules above quoted appear to apply only to inci-
dents arising between employees in a non-supervisory status, in view of the
reference to "a fellow employee's card" and "the time card of another worker."
In punching in Evans' card, Braden was complying with the order of his super-
visor-a not unusual order in view of the fact that Braden had frequently ob-
served employees punch the time card of supervisors upon their request at the
end of the work day.18 In view of the fact that Braden had for 9 months been the
acting secretary of the Union, it is inferred that his union activities had come to
the respondent's attention. In addition, Braden's discharge was part of the
course of conduct pursued by the respondent to undermine the Union and fits into
the pattern of discouragement of activities on the part of the Union's officers later
engaged in by the respondent, as elsewhere discussed in this report.18 The under-
signed concludes that at most the rule respecting the punching in of time cards
was seized upon by the respondent as a pretext for the discharge of Braden and
that the real motive for his discharge was the respondent's anti-union animus
and its desire to nullify the organizational efforts of the Union. In view of these
circumstances, the undersigned finds that Braden was discriminatorily discharged
in violation of Section 8 (3) of the Act, because of his membership in the Union
and that by thus discriminating against Braden, the respondent has discouraged
membership in the Union and interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.20
18 The same conclusion is reached even if Evans were considered not to be a supervisor
within the Board's customary definition of the term. It is clear that Braden was Evans'
subordinate and was accustomed to take orders from Evans, whom Braden described as
his "assistant foreman." Evans received a higher wage than Braden, adjusted Braden's
machine for operation, directed his work, and, as hereinafter set forth, in the absence of
Foreman Braun, assumed Braun's duties as supervisor of the machine shop.
39 Specifically, the interview of Goodman and Corbin by Schellin and Masson after the
September 1944 strike, previously discussed, and the discriminatory lay-off of employees
King and McClain discussed hereinafter.
20 Not long after the discharge of Braden, the Union filed charges alleging violations
of Section 8 (3) of the Act as to Braden, McClain, King, and another employee, but
apparently later withdrew the charges without prejudice. In effect, the respondent con-
tends that the Board is estopped from proceeding upon the present charges in relation to
Braden, as well as McClain and King. The respondent's contention in this regard iq
clearly without merit. See N. L. R. B. V. T. W. Phillips Gas & Oil Company, 141 F. (2d)
304 (C. C A. 3), enf'g 51 N. L. It. B. 376, wherein a similar contention was made by the
employer and the Court answered, "The National Labor Relations Board possesses judicial
as well as administrative functions. Congress has imposed the duties to prevent unfair
labor practices which tend to affect interstate commerce . . . This function is a most
important one to be performed by the Board not only administratively but also in its
capacity as a quasi-judicial tribunal of the United States. The doctrine of estoppel may
not be invoked against the Board so long as it is acting in its administrative or judicial
WOOSTER BRASS COMPANY 1655
2. Herbert King
King was employed by the respondent from April 1942, until he was discharged
on March 11, 1944, as a turret lathe operator on the first shift n He was one of
the first employees to join the Union, later became chairman of the shop com-
mittee, and in such official capacity signed the Union's strike notice, which the
respondent received on February 10, 1944.
Soon after King had joined the Union in 1942, Supervisor Evans told King that
he "had better let the Union alone or that [he] was going to be left out of the
shop" and that "the Union would never come in the shop, and we had better let
that go, forget about it.,, 22 After King signed the strike notice, Evans on two
occasions criticized King's work performance, terming it unsatisfactory, although
he had never previously found fault with King. The undersigned finds that by
these statements of Evans, the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
On March 11, 1944, the respondent discontinued its night shift and laid off
approximately 20 employees, including King. However, some employees of the
night shift were transferred to the day shift. According to the uncontradicted
and credible testimony of King, Housekeeper informed him that the termination
was necessitated by "lack of work" and that Housekeeper regretted "to see [King]
leave because [his] work had always been satisfactory." King testified without
contradiction and the undersigned finds that on the day King was laid off, he
encountered Schellin in the shop and inquired the reason for the lay-off. Schellin
replied that it was "on account of lack of work." King then said that he knew
that the reason was his union activities, to which Schellin replied, "maybe
so."
Aside from the testimony of Foreman Braun to the general effect that employees
were selected for lay-off upon the basis of seniority and ability, as well as adapt-
ability to various duties, the respondent produced no evidence to justify its
selection of King for discharge. Moreover, it is significant that he worked on
the first shift, the hours of which are nearly always preferred to those of other
shifts, and was laid off to make way for an employee being retained from the
second shift. Under the circumstances, the undersigned is convinced that
the discontinuance of the night shift was only a pretext for King's discharge and
that the real motive for his discharge was the respondent 's opposition to the
Union and its desire to forestall its organizational activities.
King's activities were known to the respondent and as shop chairman he had
signed the second strike notice, which gave rise to the assemblage of the employees
and Schellin's anti-union remarks in regard thereto. Moreover, Evans had
warned King that his union activities would lead to his discharge, and had criti-
cized King's work performance after receipt of the strike notice signed by King.
On the day of King's discharge, in reply to a statement by King that his efforts
capacity. This is a fundamental conception of our law . . . It is clear that in the case
at bar the Board was at all times acting in its administrative or judicial capacity in its
relation to the respondent. There can be no rule which would restrict the Board from
an appropriate inquiry into a pending complaint."
n The record does not definitely establish the date of King's discharge . King testified
that he thought he was discharged on March 13, 1944. However, since it resulted from
the lay-off of the night shift on March 11, the undersigned infers and finds that it occurred
on March 11.
" On direct examination , Evans denied ever mentioning the Union to anyone, but on
cross-examination he stated that he had talked with Goodman about the Union and was
unable to recall whether he had discussed the Union with King . From his observation
of the witnesses , the undersigned does not credit Evans' denials.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in behalf of the Union were the reason for the termination of his employment,
Schellin admitted, "Maybe so." In addition, the discharge of King was part of
the pattern of conduct engaged in by the respondent in opposition to the Union,
following closely the discriminatory discharge of Braden and preceding the
incident involving Goodman and Corbin in September 1944. The undersigned
concludes and finds that King was discriminatorily discharged on March 11,
1944, in violation of Section 8 (3) of the Act, because of his membership in the
Union and that by thus discriminating against King, the respondent has dis-
couraged membership in the Union and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
3 John R. McClain
McClain was employed by the respondent on the s'cond shift as a turret lathe
operator from September 23, 1941, until he was laid off on March 11, 1944 He
joined the Union early in its campaign and served as a member of the organiza-
tional committee, soliciting memberships and talking to employees in behalf of
the Union. During the period of the jurisdictional conflict with the other
A. F. L. organizations, McClain, as a member of the Union's committee, partici-
pated in conferences with the respondent in Cleveland.
When the night shift was discontinued on March 11, 1944, McClain was among
those laid off. In regard to the lay-off, McClain testified credibly and without
contradiction that "Housekeeper came up to me in the evening and told me that he
was discontinuing the night shift, and he said although I was one of the oldest
men here, but he intended to keep all the older men on, that is, married men,
and laid off all the single men." At that time McClain was unmarried. How-
ever, according to his uncontroverted and credible testimony, other single
men with less seniority than he were retained by the respondent. In addition,
several employees from the night shift were retained on the day shift. The
record discloses no reason for complaint as to McClain's efficiency in his work.
Indeed, he had been among the 20 employees with particular ability chosen to
take a special training course sponsored by the United States Government during
the war.
As in the case of King, the respondent offered no evidence, aside from the
general statement that the March 1944 lay-offs were made on the basis of senior-
ity, efficiency, and adaptability, to justify the termination of McClain's em-
ployment. The undersigned is of the opinion that the lay-off of the night shift
served only as a pretext for the discharge of McClain. That the respondent was
in fact motivated by its opposition to McClain's activities in behalf of the Union
is evidenced not only by the inadequacy of the reasons given by the respondent
for the discharge but by the following circumstances : (a) the respondent's oppo-
sition to the Union, as shown by its other unfair labor practices and by its gen-
eral course of conduct in respect to the Union and its leaders; (b) the fact that
McClain was on the Union's committee and active in its behalf; (c) the fact
that on the same day of the termination of McClain's employment, King was also
discriminatorily discharged; and (d) the fact that only a month before, Braden,
another leader of the Union, was discriminatorily discharged. In view of these
circumstances, the undersigned concludes and finds that McClain was discrimi-
natorily discharged on March 11, 1944, in violation of Section 8 (3) of the Act,
because of his membership in the Union, and that by thus discriminating against
McClain, the respondent has discouraged membership in the Union and interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
WOOSTER BRASS COMPANY 1657
C. Conciusioris With, 2 espect to interference, restraint, and coercion
The above-described course of conduct by the respondent discloses a well de-
vised plan to frustrate self-organization among its employees and to offset the
Union's efforts to serve as their bargaining representative. When the organiza-
tional activities of the Union reached their peak in the fall of 1943, the respondent
in no uncertain terms expressed its disapproval of the Union and its leaders and
sought to undermine its organizational efforts. Thus, President Schellin ac-
cused employee Corbin of being "an agitator," complained that if Corbin had
tended his "own business there wouldn't be any Union around there," and termed
the Union as being "nothing but Communist . . . You act like you are over in
Russia." Upon receipt of the strike notice in November 1943, Sclellin assembled
the employees and addressed to them remarks which clearly transcend the con-
stitutional guaranty of free speech. Even accepting Schellin's version of his
address, the threat of economic reprisal to be visited upon the employees in the
event they participated in a strike is inherent therein-namely, that the plant
would be closed. That the employees realized the import of his remarks is clear
from the testimony of those who were called as witnesses ; nearly all testified that
Schellin stated that the plant would be closed in the event the employees engaged
in a strike. Furthermore, Schellin by taking a vote of the employees, both by
show of hands and by ballot, assumed a function which is by law within the ex-
clusive province of the Board. In the meeting with the night shift employees, in
regard to the same strike notice, Schellin characterized those responsible for the
notice as "racketeers and Communists" and "not American." Again he repeated
his threat to close the plant and conducted a ballot to determine whether a major-
ity favored the strike. And in both meetings, Schellin objected to "outside dicta-
tion coming in telling him how to run his shop." A similar meeting of employees
was called by Schellin on receipt of the second strike notice in February 1943.
At that time he again threatened to close the plant if the employees engaged in
concerted strike action. And on this occasion a ballot was taken with his acqui-
escence in which the question to be determined was whether the employees desired
a union On the same day, the respondent discriminatorily discharged Carl
Braden, secretary of the Union.
It is also significant that following the success of the Union's initial organiza-
tional efforts, the respondent published rules and regulations forbidding solicita-
tion on company property. Although Superintendent Housekeeper testified that
the rule was never enforced so as to interfere with employees' union efforts during
their free time, the rule itself is so broad as to infringe upon employees' legitimate
union activities during their non-working hours on the respondent's property.
On March 11, 1944, the respondent discriminatorily terminated the employment
of two more union leaders , King and McClain.
The respondent's interference in the organizational activities of its employees
continued even after more than a majority had indicated in the Board-conducted
election that they desired the Union to be their statutory representative.
Shortly after the election Schellin again voiced a threat of economic reprisal by
telling employee Funk that "if the shop was run . . . with Union help
. . . some of the families of the employees might suffer, especially the larger
ones." On two occasions in bargaining conferences in the presence of employee
committeemen Schellin objected to dealing with the Union's international repre-
sentatives and in reference to them stated they "were nothing but a bunch of
gangsters and . . . had blood on [their] hands."
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent's antipathy to the Union and coercion of its employees con-
tinued during the term of its contract with the Union. In August 1944, Schellin
complained at a meeting of all employees that he "had a nice little home there
at one time, and the Union came along and had it broke up, broke their little
home up." Further interference with the union activities of the employees was
afforded by Foreman Braun's attempt to persuade employee Funk to return to
work during the course of the September 1944 strike and by Braun's statement
"after the Union was in in some cases they didn't make as much as they did
before they came in." The respondent's treatment of Goodman and Corbin, the
leading exponents of the Union in the plant, following the September 1944 strike
patently violated the rights guaranteed the employees by Section 7 of the Act.
He held them responsible for the strike, termed their actions "communistic," asked
them to leave the respondent's employ, and in the case of Goodman, indicated
that his services might not be needed in the future because of improvements in
machinery.
Upon the termination of the contract, the respondent increased its efforts to
turn the employees from the Union. As hereinafter found, the respondent re-
fused to bargain with the Union and substituted a profit-sharing plan for the
annual bonuses. In addition, Foreman Braun suggested to employee Sowers in
November 1945 that if a "Company Union" were organized "the rest of the boys
would belong," and in February 1946, Masson, in giving the reason for Sowers'
failure to participate in the first payment under the profit-sharing plan said,
"That's what your Union does for you." Although employees had theretofore
been free to consult union committeemen at any time, the respondent, at this
time, formulated a rule prohibiting employees from talking to union committee-
men during working hours and took steps to terminate conversations which looked
suspicious.'3 The interrogation of prospective employees as to their union affilia-
tion was openly violative of the Act and Masson's statement to applicants clearly
discouraged them from joining the Union. In April 1946, the respondent again
demonstrated its disregard for the Union and failed to meet its statutory duty,
by bargaining directly with the employees through an employee committee with
respect to a wage increase and other collective bargaining matters, as hereinafter
found. Again in July 1946, the respondent ignored the Union's efforts to reach a
settlement of the strike but instead negotiated directly with the strikers. And
once more Foreman Braun urged employees to abandon their concerted activity
and return to work.
Upon the entire record, the undersigned is convinced and finds that the re-
spondent, by the foregoing conduct, statements, and activities, interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. It is also clear, and the undersigned finds, that these
statements and acts of the respondent, as well as its discriminatory treatment
of Braden, King, and McClain, were integral parts of a course of conduct designed
to discourage employees from joining or remaining members of the Union and to
defeat the Union's efforts at collective bargaining, and that this course of con-
duct, which included economic reprisals for union membership and activities,
was plainly coercive and therefore violative of Section 8 (1) of the Act."
"While such a rule is not per ae violative of the Act, the undersigned finds that in view
of the timing of Its promulgation and the respondent ' s entire course of conduct , the for-
mulation of the rule constituted interference in the exercise of the rights guaranteed
employees in Section 7 of the Act.
" It is clear that the neutrality statement contained in the letter sent to all employees
on May 20, 1946, cannot exempt the respondent from the consequences of its anti-union
statements and conduct . Whatever effect the neutrality statement may have had was
WOOSTER BRASS COMPANY 1659
D. Conclusions with respect to the refusal to bargain
1. The appropriate unit
It was stipulated by the parties that all production and maintenance em-
ployees of the respondent, excluding office and clerical employees and all super-
visors with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining. Counsel for
the Board urged the exclusion of Paul Evans and Charles Fry from the unit
on the ground that they were supervisory employees. The respondent contended
that they should be included in the unit.
In support of his contention, counsel for the Board relied upon the following
document posted under Schellin's signature.
FACTORY NOTICE
For Machine Shop Bulletin Board Posting
In order to clarify the matter of responsibilities in the machine, tool and
assembly divisions, the management wishes to have it known by all employees
in these divisions that Mr. Carl Braun is considered to be general foreman
and responsible for all production scheduling and processing.
In order to give Mr. Braun proper assistance in handling our production,
Mr. Wm. Brubaker will handle all supply production and assembly operations
and Mr. Paul Evans is expected to assist Mr. Braun on all machine pro-
duction and machine set up programs. Mr. Charles Fry has the responsi-
bilities of directing tool room activities and during his absence Mr. Ted
Vitaro is expected to direct such activities.
It is hoped that every employee will cooperate fully.
In the consent election Evans cast a challenged ballot, but no ruling was made
on the challenge by the Regional Director since the one ballot would not affect
the outcome of the election.
Evans was in the respondent's employ from the fall of 1940 to September 1,
1945, as a set-up man 20 He adjusted the machines for various types of operations
but did not himself operate machines along with other employees of the shop. As
of November 25, 1944, he received 15 cents an hour more than the highest
paid machinist. When an employee completed an assigned job, Evans, pursuant
to orders from Foreman Braun, re-set the machine to another operation or
ordered the employee to work on another machine. Evans testified that in
Foreman Braun's absence, Evans "looked after things in the machine shop."
Evans' answers to hypothetical questions posed by counsel for the Board indi-
cate that in Braun's absence Evans would have authority to give orders to
machine shop employees, would have reported inefficiency on the part of
machine operators to Superintendent Housekeeper, and would have recom-
mended transfers of employees to Housekeeper. Foreman Braun " described
Evans' duties as those performed by "a man that would take the castings and
get the tools for that job, set the machine up and get it in operation for whoever
effaced by the subsequent conduct of the respondent. See Matter of Laister-Kauffmann
Aircraft Corp., 52 N. L R B 261, enf'd 144 F. (2d) 9 (C. C. A. 8) ; Matter of Atlas Press
Co , 32 N. L R B. 863, enf'd 11 L. R. R 519 (C C. A. 6).
u Some of the respondent's records classify Evans as a job-setter.
26 Braun supervised the assembly room, buffing department, machine shop, and shipping
department.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is going to run that machine," and testified that Evans directed the employees'
work only to the extent that Braun "told him that we needed to run, and so
forth. He made the set-ups. I checked the jobs and placed the work myself."
Braun further testified that on occasions of his absence from the plant, he did
not know whether Evans "was actually in charge or not. We had a Mr. Brubaker
there that was supposed to carry on in my absence, and Mr. Evans was still to
work under Mr. Brubaker. He was never, to my knowledge, ever any foreman
of any kind. He would more or less continue his set-ups and all that kind of
stuff." Employees Braden and King referred in their testimony to Evans
as an "assistant foreman" who set the machines for employees unable to set
their own, made routine checks of their work, and in the absence of Braun
assumed his responsibilities. The undersigned finds that Evans assumed Braun's
duties in the latter's absence and does not credit Braun's testimony to the con-
trary. It is found that Evans possessed supervisory authority and accordingly
was not included in the bargaining unit n
Charles Fry was classified as a tool maker. Fry's duties were best described
by the following testimony of Personnel Manager Masson :
[Fry] was sort of a supervisor in the tool room. He looked after the
work in the tool room . . . He had no rights to hire or fire or recommend
hiring or firing . . . Mr. Housekeeper supervises the tool room. There
is no work done in that tool room without Mr. Housekeeper's knowledge
or assigning the work. He will go to Fry if there is certain work to be
done. And if there is certain work to be done in the tool room, Fry might
distribute the work to the men in the tool room, but it is all done under Mr.
Housekeeper's supervision.
Including Fry, there were four employees in the tool room. Fry received
10 cents an hour more than the other three employees of the tool room. In
addition, Masson testified that Housekeeper on occasion outlined the work to
be done in the tool room to employee J W. Maurer.
In determining the supervisory status of Fry, a consideration of the duties of
Al Davis is pertinent. Foreman Braun testified that Davis was "more or less
classed as foreman" of the buffing room and that Davis "sort of overlooks things.
I have charge of him." According to Housekeeper, Davis was "the man in charge
of the buffing room," but "it was a case of just being the oldest man. He was
never personally told by anybody that he was foreman of that department. He
was just looked upon and went to and told to do this and told to do that. There
was never an agreement with him as to whether he was a foreman or not."
Masson compared the duties of Fry and Davis as follows :
Mr. Davis' duties as compared with Mr. Fry's-they were in two different
departments. Mr. Fry's duties are to build tools, to make tools, and things
of that kind. That is what he does. He actually builds them. He actually
makes them. If some particular part of a tool he is working on needs
attention, he can give it to one of the other fellows in there and go ahead
while he works on another part of it. Mr. Davis' duties were primarily
27 Apparently, when Evans terminated his employment with the respondent about Sep-
tember 1, 1945, his position of job-setter was not filled. This inference is based upon
the testimony of Braun to the effect that Evans was the only set-up man or job setter
in the respondent's employ and upon the fact that counsel for the Board did not urge the
exclusion of any employee performing comparable duties from the unit based upon the
pay roll of July 21, 1946.
WOOSTER BRASS COMPANY 1661
the same. Mr. Davis was supposed to work on a wheel in the buffing room.
He was supposed to put out actual production.
Davis was a leading advocate of the Union and a member of its bargaining
committee. The Board did not urge his exclusion from the bargaining unit.
In view of the foregoing, the undersigned is of the opinion that the record
does not indicate that the duties of Fry were of such a nature as to necessitate
his exclusion from the production and maintenance unit as a supervisory em-
ployee. The undersigned accordingly finds that Fry should be included in
the unit.
The undersigned finds that the above-described unit at all times material herein
constituted and now constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
As hereinabove set forth, following the consent election held on May 16, 1944,
the Regional Director on May 22, 1944, issued his Consent Determination of
Representatives, in which he found and determined that the Union had been
designated and selected by a majority of the employees in the agreed unit
as the exclusive bargaining representative of the employees within the unit.
Thereafter, on July 15, 1944, the respondent and the Union entered into a
collective bargaining contract, which provided that all employees who were then
members or who thereafter became members of the Union should maintain
their membership during the 1-year term of the contract. The agreement also
provided for a deduction of union dues upon signed authorization of employees.
The respondent contends that upon the termination of the contract on July 15,
1945, the Union had lost its representative status by reason of changes in the
respondent's pay roll and resignations from the Union which dissipated its
majority.
A list of names of employees for whom dues were deducted by the respondent
for the months of June and July 1945, was introduced into evidence. Of these
names, 39 were on the pay roll for the period ending July 8, 1945, within the
unit. However, the respondent introduced into evidence statements signed
by employees Leslie Carwile, Clifford Barnes, and Leonard Brenneman on July
5. 6. and 15, 1945, respectively, to the effect that they had each notified the Union
that they had resigned therefrom and requested the respondent to cease the
pay-roll deduction of their union dues and assessments. The names of these
employees were on the list submitted in evidence by the Board as having had
dues deducted in June and July 1945. The undersigned finds, however, that as
of July 15, 1945, the date of the termination of the Union's contract, they are
not to be counted as members of the Union, in view of their resignation from
the Union. In addition, a number of "official membership receipts" for the
payment of dues were introduced into evidence and establish that 5 other
employees had individually paid dues for June and/or July 1945. Since it has
been found that Braden and McClain were discriminatorily discharged, they will
be included in the bargaining unit and will be counted as union members. In
28 Some of these receipts were for payments made subsequent to July 1945 for dues
several months in arrears.
21 McClain was reinstated by the respondent in July 1945. Since it is found in Section
V, infra, that King refused an offer of reinstatement at a time not definitely established
by the record but probably on or before July 15, 1945, the undersigned will not include
King in the computation of the appropriate unit or the Union's majority status.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion, as of July 15, 1945, the Union had 33 members out of the 69 employees
within the unit.80
In addition counsel for the Board introduced in evidence a copy of a list of
34 names for whom the Union requested the respondent to deduct dues for the
month of August 1946. Although the list was submitted to the respondent on
August 2, 1946, the record does not show for which of these employees August
dues were deducted or how many of these employees had signed dues deduction
authorizations. Of these names, 30 appeared on the respondent's pay roll for
the period ending July 21, 1946. The respondent introduced into evidence a
list of names for whom the Union had requested dues deductions for the month
of July 1946, showing that dues had been deducted from the pay of 20 employees.
A comparison of the August 1946 list with the July 19-16 list reveals that 18
employees who were on both the August list and the pay-roll for July 21, 1946,
had had dues deducted in July 1946. In addition, counsel for the Board intro-
duced into evidence applications for membership in the Union signed by 11 other
employees on July 29 and 30, 1946. The names of these 11 employees appear on
the pay roll for the period ending July 21, 1946, and also on the check-off list
submitted to the respondent for the month of August 1946. In conclusion, the
evidence establishes that as of August 2, 1946, 18 employees were dues-paying
members of the Union and 11 others had designated the Union as their collective
bargaining representative and that the names of these 29 employees were on the
pay roll of July 21, 1946. With the inclusion of Braden as a union member, the
Union accordingly represented 30 employees of the respondent as of August 2,
1946. There were 62 employees within the appropriate unit, according to the
pay roll of July 21, 1946 '0
If the respondent had not engaged in any unfair labor practices, these circum-
stances would raise a question as to the majority status of the Union at the time
of the respondent's refusal to bargain, found below. It is well settled, however,
that a union's representative status is not affected by a loss of majority caused
by an employer's unfair labor practices." The record establishes, as heretofore
found, that the respondent discriminated in respect to the employment of sev-
eral leaders of the Union and engaged in a course of conduct designed to dis-
courage membership in the Union throughout the organizational campaign, the
term of the Union's contract, and the period following its expiration. The
undersigned finds that the Union's loss of majority was the result of the respon-
dent's unfair labor practices and that the membership withdrawals do not
reflect the untrammelled expression of the employees' will. Under the circum-
stances, such defection does not impair the Union's previously established ma-
jority status. The undersigned accordingly finds that on May 22, 1944, and at
all times thereafter material to this proceeding, the Union was the duly desig-
nated representative of a majority of the employees in the appropriate unit
defined above and that, pursuant to Section 9 (a) of the Act, the Union was on
that date and at all times thereafter, and is now, the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining
w This figure is based upon the pay roll for the period ending July 8, 1945.
n The respondent was afforded an ample opportunity to examine all evidence submitted
by the Board in regard to the majority status of the Union.
82 Matter of Consumers Lumber cf Veneer Company, at at., 63 N. L. R. B. 17; Matter of
Palm Beach Broadcast Corporation , 63 N. L . R. B. 597 ; Matter of A. J. Showalter Company,
64 N. L. R. B. 573; Matter of Consolidated Machine Tool Corporation, 67 N. L. R. B. 737;
N. L. R. B. v. Bradford Dyeing Association , 310 U. S. 318 ; Franks Bros . Co. v. N. L R. B.,
321 U. S. 702.
WOOSTER BRASS COMPANY 1663
with respect to rates of pay, wages, hours of employment, and other conditions
of employment.
3. The refusals
At numerous collective bargaining conferences held between July 15 and
October 1945, the respondent contended that the Union cud not represent a ma-
jority of the employees and limited its offer of recognition of the Union as the
bargaining representative of its members only. On October 29, 1945, all attempts
at negotiation ceased. The undersigned has heretofore found the respondent's
contention as to the Union's majority status to be without merit. The under-
signed further finds that the respondent was not motivated by a genuine doubt
as to whether the Union was the majority representative of its employees, for
as the Board has frequently held, "an employer cannot be heard to say that he
entertains an honest doubt as to a union's majority status where he conducts
a campaign to destroy that majority.""
The undersigned is also of the opinion and finds that the respondent 's substi-
tution, in September 1945, of the profit sharing plan for the annual bonus system
without consultation with the Union, that the respondent's individual bargaining
through an employee committee with the employees in regard to a wage increase
and other matters in April 1946, and that the respondent's direct negotiation
with the strikers in July 1946 in disregard of the Union, constituted further vio-
lations of its duty to bargain with the Union."
as See Matter of Consolidated Machine Tool Corporation, 67 N. L. R. B 737, and cases
cited therein.
"The complaint also alleged that tue respondent had violated Section 8 (5) of the
Act by the following conduct :
(a) By is,,uing about June 1, 1944, without prior consultation with the Union a
handbook setting forth plant rules and regulations and withdrawing thereby a pre-
viously established rule permitting employees 5 minutes' leeway in reporting to
work However, the evidence establishes that these rule books were published and
distributed in August-September and November-December 1943, several months prior
to the time the Union became the statutory representative of the employees. Love-
land testified that the 5-minute leeway in reporting to work was not abandoned until
after the election. The undersigned does not credit this testimony in view of the
clearly enunciated rules in the booklets theretofore published exhorting employees
to be on time for work and providing penalties for tardiness.
(b) By refusing to bargain collectively with the Union through certain repre-
sentatives selected by the Union and insisting on negotiating only with those union
representatives who were also its employees The record does not support this alle-
gation. It is true that the respondent refused to hold meetings in its plant offices with
certain international representatives of the Union, but it was ever willing to confer
with them at other offices in Wooster and it never refused to negotiate with Loveland,
the resident regional representative of the Union , at its offices . A reasonable basis for
this position , taken by the respondent was afforded by untoward incidents occurring
in conferences at the plant during the period of jurisdictional strife. In this regard,
it is also significant that Wooster is a small town and no serious inconvenience could
result by meeting at places other than the respondent 's plant. One meeting in
October 1945 , was confined to employees representatives of the Union and officers of
the respondent excluding the Union 's International Representatives and the respon-
dent's counsel . However, this meeting was arranged by a conciliator of the U. S.
Department of Labor.
(c) By assigning since about September 1, 1944 , overtime work to employees
without consultation with the Union . Late in 1944 and again in the latter part of
1945, it was necessary to operate one lathe, the only type of its kind in the plant, on
a 24-hour basis and the two employees who normally operated it on the two shifts on
which the respondent ran its plant were each assigned a 12 hour shift. As hereto.
fore mentioned , Goodman spoke to Superintendent Housekeeper about these assign-
ments and Housekeeper told him that it was none of his business . The contract
between the respondent and the Union provided that "In the event that it becomes
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The alleged discriminatory discharges
1. Wilson Corbin
Wilson Corbin commenced his employment with the respondent on September
22, 1942, and worked as a turret lathe operator. Early in 1943, he joined the
Union and participated in its organizational campaign by soliciting memberships.
He was among those union members who had their dues deducted from their
pay by the respondent. His father, Scott Corbin, was one of the leaders of
the Union and a member of the Union's shop committee.
Upon the termination of hostilities in the war on August 14, 1945, the respond-
ent's business slackened due to cancellations of war contracts. A reduction in
personnel accordingly became necessary. Superintendent Housekeeper, Foreman
Braun, and Personnel Manager Masson conferred and decided upon 18 employees,
including Wilson Corbin, to be laid off. According to Masson, the considerations
governing the choice of employees for termination were seniority, ability on
work performed in the past, and capability for performing work on orders to
be completed.
The reason advanced by the respondent for the inclusion of Wilson Corbin
in the lay-off was that he had informed the respondent that he intended to
terminate his employment the next month and move to Kentucky. In this regard,
Foreman Braun testified that about August 22 or 24, 1945, a week before the
lay-off on August 31, Wilson Corbin asked if he would be included in the lay-off
which had been rumored about the plant to be imminent According to Braun,
he replied that he did not know; whereupon Wilson Corbin stated, "Well, as far
as I am concerned, I don't care anyway. I am figuring on quitting next month
and I am going back to Kentucky." Braun further testified that after this con-
versation lie asked Scott Corbin about his son's plans and Scott Corbin replied,
"That is news to me. I have got to talk to the boy."
On August 29, 1945, the respondent discussed the pending lay-off with the
Union's shop committee and gave them a list of the employees whom the re-
necessary to work overtime an equitable distribution of said overtime work is to be
in effect in the plant. The Company reserves the right to determine when such
overtime, if any, is necessary " Other departments worked overtime in addition.
The undersigned is of the opinion and finds that the respondent did not violate the
Act in regard to this one incident regarding overtime work. The nature of the Union's
complaint, if it may be termed that, should have been handled through the established
grievance procedure Goodman's casual discussion of the matter with Housekeeper
can hardly be considered a demand for negotiation on the part of the Union.
(d) By since about June 1, 1944, announcing and effectuating wage increases for
a portion of its employees within the unit without prior consultation with the Union.
This allegation refers to the effectuation of merit increases during the term of the
Union's contract. As heretofore detailed, however, the respondent conferred with
the Union, upon the latter's demand, in respect to this matter and agreement was
reached in January 1945, as to increases to be given to employees who had not
previously received an increase and such increases were made retroactive in effect
to October 1944. It appears that thereafter the respondent made other merit increases
without consultation with the Union but pursuant to the general understanding
reached as a result of the conferences in January 1945. In any event, no complaint
as to the subsequent merit increases was voiced by the Union. In response to the
Union's request, the respondent furnished a copy of the budget for the period from
January 21, 1945 to May 13, 1945. Since detailed information on this matter for
the period of July 1944 to January 1945 was in the possession of the Union as a result
of the January negotiations on merit increases , the undersigned finds that the respond-
ent complied with its duty to furnish the Union information on this matter. See
Matter of J. H. Allison et Company, 70 N. L. R. B. 377.
The undersigned is of the opinion that the record does not support these allegations
of the complaint and will recommend that they be dismissed.
WOOSTER BRASS COMPANY 1665
spondent proposed to lay off on August 31 ' The only questions raised by the
Union related to Wilson Corbin and Ira Morr. Scott Corbin referred to the
proposed lay-off of his son, Wilson. According to the credible testimony of
Masson, it was explained to him that his son had stated that he was leaving the
respondent's employ the following month to go to Kentucky and accordingly
"from a Company standpoint it would be better to lay Wilson Corbin off at that
time and retain another operator rather than to lay that particular operator
off and then when we needed him again have him have a job some place else."
Masson testified that Corbin expressed surprise when informed of his son's
plans but did not deny that such were his son's intentions and raised no further
objections. The Union pressed no other objections to the proposed lay-off.
Wilson Corbin denied that he ever told any foreman or supervisor that he
was planning to go to Kentucky. He admitted, however, that he went to
Kentucky about September 1, 1945, because his "mother-in-law was looking to
die," and returned about September 15, 1945. In view of Wilson Corbin's ad-
mission that he did in fact go to Kentucky, in addition to the fact that the
Union pressed no strenuous objection to his lay-off, the undersigned is unable
to credit Wilson Corbin's denials but rather credits the testimony of the respond-
ent's witnesses, above set forth, to the effect that Corbin had indicated that he
was leaving the respondent's employ to go to Kentucky.' This conclusion is
buttressed by the fact that upon the subsequent filing of a grievance by the
Union, Wilson Corbin was reinstated to his former position on October 15, 1945.
In addition, Masson testified that but for the expression of intention to go to
Kentucky, Wilson Corbin would not have been laid off in the first instance. The
undersigned concludes and finds that the respondent had not discriminated
in regard to the hire and tenure of employment of Wilson Corbin.
2. E. A. Myers
Myers commenced his employment with the respondent in April 1941, working
as a general laborer at 30 cents an hour. Later he operated a ring machine,
then was transferred to assembly, and ended in running a drill press, at 70 cents
an hour. Shortly after the consent election held in May 1944, Myers joined
the Union, but he was not particularly active in its behalf. However, his mem-
bership was known to the respondent inasmuch as he was elected to the Union's
"grievance committee," though he was later withdrawn from the committee since
the machine shop had more than its quota of representatives thereon.
Myers was one of the employees selected for lay-off on August 31, 1945. In the
discussion between the respondent and the Union's shop committee concerning
the proposed lay-off, the Union voiced no exception to the termination of Myers'
employment. The respondent contends that although Myers was eighth or tenth
86 This finding is based upon the credible testimony of Masson . Employee Howard Good-
man, a member of the shop committee , testified that although the committee requested
a copy of the lay-off list, it was not furnished by the respondent. The undersigned does
not credit Goodman's testimony on this issue . In other collective bargaining matters the
respondent furnished upon the request of the Union information pertaining to job classi-
fications and merit increases . It is more plausible to infer that they acceded to this request
of the Union ; Masson is therefore credited on this point.
ae Wilson Corbin further denied that he was informed on August 31 that he was laid off
and did not learn from the respondent of the termination of his employment until the
following Monday when he reported for work. Superintendent Housekeeper testified that
he personally informed each employee on the lay-off list that his employment was terminated
on August 31. The undersigned credits Housekeeper on this issue , since such action is the
more plausible under all the circumstances. Wilson Coi bin also placed the date of his
termination of employment on August 29, 1945, he was clearly in error as to this date.
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in line of seniority among all employees, he was not so skilled or adaptable to
varied work tasks as other employees who were retained. The record supports
the respondent's contention. Myers at the time of the hearing was 76 years old.
Until 1931, he had been engaged in an automobile business. The factory ex-
perience he acquired thereafter, in addition to the time he worked for the
respondent, consisted of a period during which he worked for a competitor of the
respondent, 1 year as a night watchman and about 4 years in an assembly
department. In view of these considerations, the undersigned concludes and
finds that the respondent has not discriminated in regard to the hire and tenure
of employment of E. A. Myers within the meaning of the Act.
3. Ira 11Iorr
Ira Morr was employed by the respondent late in 1941 or early in 142 as an
operator of a "rounding out machine and slotter," at 55 cents an hour.` His
wage rate increased through numerous raises until he was earning 82 cents an
hour in 1944. He joined the Union when the organizational movement started
and subscribed to the dues deduction plan. He described his rarticipation in the
Union's activities as follows : "I talked to some of the boys and tried to help
organize."
Morr's name was on the list for lay-off on August 31, 1945. At the conference
between the Union and the respondent in regard to the lay-off, the Union
interceded in his behalf and, because of his large family, urged the respondent
to find work for him in some other department. It is undisputed that the need
for his machine operation slacked greatly with the cancellation of Navy orders
and there was not sufficient rounding out and slotting work on the respondent's
orders to keep him busy all the time. Because of a somewhat severe nervous
disorder akin to palsy, Morr was unable to perform any task requiring too great
precision or skill. The respondent offered him a position in the buffing room.
Morr accepted the transfer and his rate was reduced to 78 cents an hour in
conformance to the wage rates of that department. It appears that the respond-
ent held back rounding out and slotting work and that he performed his old
duties part time but at the buffing room rate. On October 8, 1945, he filed a
grievance through the Union respecting his reduction in rates. The shop com-
mittee was advised that Morr's work was unsatisfactory in the buffing room since
he had spoiled several castings because of his nervousness and that it would be
necessary to transfer him to a laborer classification in order to give him work.
Morr accepted the transfer and another reduction in pay to 75 cents an hour
and the Union signed the grievance as settled. The respondent continued to
hold rounding out and slotting machine work for him and it appears that most
of this work he performed at night in addition to his regular duties 38
Morr testified that about November 15, 1945, he and his son encountered
Foreman Biaun in a restaurant and Morr inquired, "I wonder if there is any
chance of ever getting the rates back." According to Morr, Braun replied,
`,There might be one way . . . Stay away from Scottie [Scott Corbin] and
Goodman and let some of this Union stuff alone and you might get it back."
Wilbur Morr corroborated his father's testimony. Braun admitted that he had
had a conversation with Morr and his son in November 1945 but denied that
3Y Moir had previously been employed as a painter.
39Btorr testified that he worked at nights part time for 5 or 6 months before he left
the respondent's employ.
WOOSTER BRASS COMPANY 1667
the Union was mentioned therein. Braun testified that Morr "wanted to know
how long it would be before he could get back on his old rate of pay. I told
him I didn't know, but I hoped things would pick up in the immediate future
and, that he could go back on his old rate of pay, that I hoped things would
break in that way for him." Although the course of action pursued by the
respondent tends to support Braun's version of the colloquy, the undersigned was
especially impressed by the Morr's as forthright and honest witnesses. It has
been previously found that Braun expressed an antipathy to the Union to other
employees. The undersigned accordingly finds that Braun made the statements
attributed to him by Ira and Wilbur Morr and that the respondent thereby
interfered with the rights guaranteed employees in Section 7 of the Act.
Morr continued to work for the respondent in the laborer's classification until
about the first of April 1946, at which time he voluntarily quit to take another
position. However, in order to maintain his seniority in the respondent's plant,
he worked part time in the evening for a period of 2 or 3 weeks on rounding out
and slotting work, which the respondent held back for him. Finally, he
abandoned the part-time work altogether.
Counsel for the Board contended that the transfer of Morr to the buffing
room and thence to the laborer's classification was discriminatory. The under-
signed does not agree. The facts in respect to Morr differ considerably from
the pattern followed by the respondent in the discriminations against union
leaders found above, namely, Braden, King, and McClain, as well as the Good-
man-Corbin incident. Morr was not one of the leading advocates of the Union
and never served in any official capacity. And his physical condition obviously
prevented him from performing exacting work. Moreover, it cannot be argued
that the respondent seized upon his physical limitations as a pretext for dis-
criminatory action, for had this been the respondent's purpose, it would have
terminated his employment on August 31 forthwith, rather than provide him
an opportunity to work in other departments of the plant. The sequence of
events in Morr's employment history indicates that the respondent did all it
reasonably could to afford Morr suitable employment commensurate with his
abilities." In view of all the circumstances regarding Morr, the undersigned
deems Braun's statement to Morr, set forth above, as indicative of the general
anti-union feeling on the part of the respondent rather than an indication of
discriminatory motive in respect to Morr's transfers. The undersigned con-
cludes and finds that the respondent has not discriminated in regard to the hire
and tenure of employment of Ira Morr within the meaning of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
89 The undersigned in reaching this conclusion has not disregarded the fact that for the
periods of part-time work on rounding out and slotting machines, Morr was not paid his
former rate after his transfers but rather the straight rate of the buffing room or laborer
classification. The undersigned accepts the respondent's explanation that the reason for
the non-payment was that under the respondent 's system of classification , once an employee
was reclassified, he was paid according to the rate of his classification , regardless of the
work performed.
817319-49-vol. 8-106
1668 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
Having found that the respondent has independently violated Sections 8 (1),
(3), and (5) of the Act, the undersigned will recommend that the respondent,
pursuant to the mandate of Section 10 (c), cease and desist therefrom. The
respondent's whole course of conduct discloses a purpose to frustrate self-or-
ganization among its employees and to offset the Union's efforts to serve as their
bargaining representative. For example, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed under
the Act by expressing disapproval of the Union and its leaders, by threatening
economic reprisals which would be inflicted upon employees engaging in con-
certed activities , by balloting employees to determine , in one instance , whether
they desired to engage in a work stoppage and, later, whether they wanted a
union, by attempting to induce employees individually to abandon strike ac-
tivities and return to work, and by other anti-union statements and conduct
heretofore discussed. Moreover, the respondent actually penalized employees
Braden, King, and McClain for their concerted activities by discriminatorily
discharging them. Such discrimination "goes to the very heart of the Act. 11 40
Finally, the respondent culminated its unfair labor practices by refusing to bar-
gain with the Union on July 15, 1945, and thereafter. Because of the respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced that
the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed and that danger of their commission in the future is
to be anticipated from the respondent's conduct in the past.41 The preventive
purposes of the Act will be thwarted unless the recommendations are coextensive
with the threat. In order, therefore, to make effective the interdependent guaran-
tee of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
The undersigned has found that the respondent has discriminated in regard
to the hire and tenure of employment of Carl Braden . The undersigned will
therefore recommend that the respondent offer Braden immediate and full re-
instatement to his former or substantially equivalent position ,' without prej-
udice to his seniority and other rights and privileges . The undersigned will
further recommend that the respondent make Braden whole for any loss of pay
he may have suffered by reason of the respondent 's discrimination against him,
by the payment to him of a sum of money equal to the amount which he would
normally have earned as wages from the date of the discrimination against him
40 N. L. R. B. v. Entwistle Mfg. Co., 120 F (2d) 532 (C. C. A. 4). See also N. L. R. B. v.
Automotive Maintenance Machinery Co., 116 F. ( 2d) 350, 353 (C. C. A. 7), where the
Court observed : "No more effective form of intimidation nor one more violative of the
N. L. R. Act can be conceived than discharge of an employee because he joined a
union. . .
41 N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
42 In accordance with the Board's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch, 65 N L R B. 827.
WOOSTER BRASS COMPANY 1669
to the date of the offer of reinstatement, less his net earnings, 41 during such
period.
It has been found that the respondent has discriminated in regard to the
hire and tenure of employment of John R. McClain and Herbert King. How-
ever, in July 1945, McClain was reinstated to a position substantially equivalent
to that he occupied at the time of the discrimination against him.." King de-
nied that he had ever been offered reinstatement by the respondent. In respect
to this issue, Regional Representative Loveland testified, "I was informed by
the National Labor Relations Board that the Company had offered to take Mr.
King back as a foundry laborer in the foundry . . . which would mean a cut
in pay, and it was not reinstatement to his former job." According to Loveland,
he communicated the offer to King, who declined it. Witnesses for the re-
spondent insisted that in April 1945, an agreement was reached through the
assistance of the Board's Regional Director to reinstate King and McClain
to their former positions, and that the Regional Director or his agents com-
municated the offers to King and McClain but later orally informed the respondent
that King had declined the offer of reinstatement and that the Union was with-
drawing its charges without prejudice. No documentary evidence in respect to
King's proposed reinstatement was introduced in evidence. In view of the
conflict in the testimony of the Board's two witnesses and the fact that counsel
for the Board failed to produce any documentary evidence from the Board's
regional files on the charges relating to King or to call as a witness any of the
Board's agents who were concerned in processing the charges respecting King,
the undersigned does not credit the testimony of Loveland and King on this
issue but relies instead upon the testimony of the respondent's witnesses. In
reaching this conclusion, the undersigned has also considered the fact that in
two other instances where employees were reinstated, namely McClain and Wilson
Corbin, they returned to the same or equivalent positions they occupied at the
time of the termination of their employment. The undersigned finds that the
respondent offered King reinstatement but that he declined the offer.
Since the respondent's offers of reinstatement to King and McClain made no
provision for reimbursement for any loss of pay they might have suffered by
reason of the respondent 's discrimination against them during the period that
they were not in the respondent 's employ, the undersigned will therefore recom-
mend that the respondent make whole these employees for any loss of pay they
may have suffered by reason of the respondent's discrimination against them,
by the payment to each of them of a sum of money equal to the amount which
he would normally have earned as wages from the date of the discrimination
48 By "net earnings" Is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where 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, 8 N. L. R. B. 440. Monies received for work performed upon
Federal, State , county, municipal, or other work -relief projects shall be considered as
earnings. See Republic Steel Corporation v N. L R. B., 311 U. S. 7.
44 The record does not reveal with exactness the date on which McClain was offered
reinstatement . Upon his reemployment in July 1945, he suffered a 5 cent an hour reduc-
tion in pay from the rate received by him prior to his discharge . The reduction was due
to the fact that night shift employees received 5 cents an hour more than those on the
day shift. McClain had worked on the night shift prior to his discharge but upon his
reinstatement , the night shift had been discontinued . Therefore , the undersigned finds
that he was reinstated to a position substantially equivalent to that he occupied at the
time of his discharge.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him to the date of the offer of reinstatement, less his net earnings during
such period.
Having found that the respondent has refused to bargain collectively with the
Union as the exclusive representative of its employees in an appropriate unit, the
undersigned will recommend that the respondent, upon request, bargain col-
lectively with the Union.
The undersigned has found that after the commencement of the Union's organi-
zational campaign, the respondent promulgated a no-solicitation rule which was
drafted so as to forbid employees from engaging in solicitation of union member-
ships during their non-working hours on the respondent's premises, a practice
which is well settled to be a legitimate union activity. Although Superintendent
Housekeeper testified that the rule was never enforced so as to infringe upon
employees' union activities during their free time on the respondent's premises,
the undersigned is not completely convinced that such has been the respondent's
policy, in view of other anti-union conduct by the respondent ; he will accordingly
recommend that the respondent rescind its no-solicitation rule so that there may
be.no possible infringement of the employees' right to engage in legitimate union
activity on the respondent's premises.
Since it has been found that the evidence fails to sustain the allegations of the
complaint as to E. A Myers. Wilson Corbin, and Ira Morr, it will be recom-
mended that the complaint be dismissed as to them. As previously mentioned,
the undersigned will recommend dismissal for failure of proof of the complaint's
allegations that the respondent violated Section 8 (5) of the Act by (1) issuing
about June 1, 1944, without prior consultation with the Union, a handbook setting
forth plant rules and regulations and withdrawing thereby a previously estab-
lished rule permitting eniplo} ees 5 minutes' leeway in reporting to work, (2)
refusing to bargain collectively with the Union through certain representatives
selected by the Union and insisting on negotiating only with those union repre-
sentatives who were also its employees, (3) assigning overtime work to employees
without consultation with the Union, and (4) by announcing and effectuating
merit wage increases for a portion of its employees within the unit without prior
consultation with the Union.
On the basis of the foregoing findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OE LAw
1. United Automobile Workers of America, Local Union No. 813, affiliated with
the American Federation of Labor, is a labor organization, within the meaning
of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Carl
Braden, John R. McClain, and Herbert King, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. All production and maintenance employees of the respondent, excluding
office and clerical employees and all supervisors with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constituted, and now constitute, a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
4. United Automobile Workers of America, Local Union No. 813, affiliated with
the American Federation of Labor, was on May 22, 1944, and at all times there-
WOOSTER BRASS COMPANY 1671
after has been, the exclusive representative of all employees in such unit for the
purposes of collective bargaining, within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the United Automobile Workers of
America, Local Union No. 813, affiliated with the American Federation of Labor,
as the exclusive representative of the employees in the above-described unit, the
respondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (5) of the Act.
6 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.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
S. The respondent has not violated Section 8 (3) of the Act in respect to
E. A. Myers, Wilson Corbin, and Ira Morr.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that Wooster Brass Company, Wooster, Ohio, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers of America,
Local Union No. 813, affiliated with the American Federation of Labor, or in
any other labor organization of its employees, by discharging and refusing to
reinstate any of its employees or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of employment ;
(b) Refusing to bargain collectively with United Automobile Workers of
America, Local Union No. 813, affiliated with the American Federation of Labor,
as the exclusive representative of all its production and maintt n_ince employees,
excluding office and clerical employees and all supervisors with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, with respect to rates of
pay, wages, hours of employment, and other conditions of employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist United Automobile Workers of America, Local Union
No. 813, affiliated with the American Federation of Labor, or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection 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) Offer to Carl Braden immediate and full reinstatement to his former or
substantially equivalent position ; 6 without prejudice to his seniority or other
rights and privileges ;
(b) Make whole Carl Braden, John R. McClain, and Herbert King for any
loss of pay that they may have suffered by reason of the respondent' s discrimina-
tion against them, by payment to each of them of a sum of money equal to the
amount which he would normally have earned as wages from the date of the
w See footnote 42, supra.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against him to the date of the respondent's offer of reinstate-
ment, less his net earnings during such period ;
(c) Upon request, bargain collectively with United Automobile Workers of
America, Local Union No. 813, affiliated with the American Federation of Labor,
as the exclusive representative of all its production and maintenance employees,
excluding office and clerical employees and all supervisors with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action with respect to rates of pay,
wages, hours of employment, and other conditions of employment ;
(d) Rescind its rule on solicitation insofar as it would prohibit union solicita-
tion on company premises during non-working hours ;
(e) Post at its plant at Wooster, Ohio, copies of the notice attached hereto
and marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Eighth Region, after being signed by the respondent's represent-
ative shall be posted immediately by the respondent upon the receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(f) 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 further recommended that the complaint be dismissed insofar as it
alleges that the respondent has discriminated against E. A. Myers, Wilson Corbin,
and Ira Morr in regard to the hire and tenure of their employment or any term
or condition of their employment, within the meaning of Section 8 (3) of the
Act, and that the respondent has refused to bargain with the Union, within the
meaning of Section 8 (5) of the Act, by (1) issuing about J'une 1, 1944, without
prior consultation with the Union, a handbook setting forth plant rules and regu-
lations and withdrawing thereby a previously established rule permitting
employees 5 minutes' leeway in reporting to work, (2) refusing to bargain collec-
tively with the Union through certain representatives selected by the Union and
insisting on negotiating only with those union representatives who were also its
employees, ( 3) assigning overtime work to employees without consultation with
the Union, and (4 ) announcing and effectuating merit wage increases for a
portion of its employees within the unit without prior consultation with the
Union.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton 25, 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 .
WOOSTER BRASS COMPANY 1673
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report. Imme-
diately upon the filing of such statement of exceptions and/or briefs, the party
or counsel for the Board filing the same shall serve a copy thereof upon each of
the other parties and shall file a copy with the Regional Director. Proof of
service on other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203 39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
FREDERIC B. PARKES, 2nd,
Trial Examiner.
Dated October 24, 1946.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations board, and in order to effectuate the policies of the National Labor
Relation,, Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to forin labor
organizations, to join or assist UNITED AUTOMOBILE WORKERS of AMERICA,
LOCAL UNION No. 813, A. F. L., or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
WE WILL OFFER to Carl Braden immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any sen-
iority or other rights and privileges previously enjoyed.
WE WILL MAKE whole the following named employees for any loss of pay
they may have suffered by the discrimination against then:
Carl Braden
John R. McClain
Herbert King
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All production and maintenance employees, excluding office and clerical
employees and all supervisors with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action.
WE HEREBY RESCIND our rule forbidding "soliciting on company property
without permission," insofar as it prohibits solicitation for the Union on
company property during non-working hours.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
WOOSTER BRASS COMPANY,
Employer.
Dated------------------------------ By ------------------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the (late hereof, and must
not be altered, defaced, or covered by any other material.