Malone Bronze Powder Works, Inc.

In the Matter Of MALONE BRONZE POWDER WORKS, INC., AND MALOND- ALUMINUM CORPORATION 1_ and ALUMINUM & BRONZE POWDER WORKERS UNION No. 21211, AFFILIATED WITH THE A. F. OF L. . Case No. C-1072.-Decided September 12,1939 Aluminum and Bronze Powder Manufacturing Industries-,Settlement : stipu- lation providing for compliance with the Act-Order : entered on stipulation. Mr..Peter J. Crotty, and Mr. John H. Dorsey; for the Board. Buckley & Buckley, by Mr. David A. Buckley, Jr., of New York City, and Moore d Herron, by George J. Moore, of Malone, N. Y.,. for the respondents. Mr. John J. Walsh, of Utica,N. Y., for the Union. Mr. F. Hamilton Seeley, of counsel to the Board. DECISION. AND ORDER STATEMENT OF THE CASE Upon charges, amended charges, and supplement to- amended. charges. duly filed by Aluminum & Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L., herein called the Union, the, National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint, dated September 10, 1938, against Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, Malone,. NewwYork, herein called the respondents, alleging that the respond- ents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), •(2), (3.), and (5) and Section 2 (6) and (7) of the National Labor Relations Act,. 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondents and the Union. . I Incorrectly designated in the amended charge and the complaint as Malone Bronze- Powder Works, Inc., and its wholly controlled subsidiary Malone Aluminum Corporation.. This was corrected by motion at the hearing. 15 N. L. R. B., No. 26. 203 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the unfair labor practices, the complaint, as amended at the hearing alleged, in substance, that the respondents (1) fostered, encouraged, sponsored, dominated, and interfered with the forma- tion, enlistment of members, and administration of a labor organiza- tion of employees known as "the committee of four" at their Malone, New York, plants and contributed financial and other support thereto ; '(2) although a majority of the'respondents' employees in an appro- priate unit had designated the Union as their representative for the purposes of collective bargaining, refused to bargain collectively with the Union as the exclusive representative of all the employees in said unit; (3) discriminated in regard to the hire and tenure of employ- ment. of two employees, Charles Boyer 2 and Myers Mallett,. because of their membership in and affiliation with the Union, and one em- ployee, Alfred B. Blair,' because of his sympathies with the aims and ideals of labor organization, and because they engaged in con- certed activities with other employees of the respondents for the pur- poses of collective bargaining and other mutual aid and.protection and thereby discouraged membership in the Union; (4) locked out their employees in order to discourage the membership of their em- ployees in and their affiliation with the Union; 'and by the above- mentioned activities and by threatening to close their Malone, New York, plants, threatening to move their Malone, New York, plants elsewhere, and other acts, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 .of the Act. On September 20, 1938, the respondents filed their.answer to the complaint in which they admitted the allegations concerning the. nature and scope of their businesses but denied the allegations con- cerning the unfair labor practices. Pursuant to notice duly served upon all parties, a hearing was held on October 3, 4, 5,4 10, 11, 12, 13, and 14, 1938, at Malone, New York, before Wright Clark, the Trial Examiner duly designated by the Board. The respondents and the Board were represented by counsel; the Union was represented by its business agent. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and, cross-examine witnesses, and to introduce evi- dence bearing upon the issues. At the opening of the hearing, coun- sel for the Board amended the complaint so as to include the discharge .of Alfred B. Blair as one of the alleged unfair labor practices. The respondents' counsel objected to this amendment upon the ground of ' Incorrectly spelled Boyea in the amended charge and complaint. 8 Incorrectly spelled Bellair in the supplement to the amended charge and the amend- ,ment to the complaint. At the request of the respondents' counsel, the hearing was adjourned for 5 days. MALONE BRONZE POWDER WORKS, INC. 205 surprise and upon the further ground that he was entitled to 5 days- in which to file an answer thereto. This objection was overruled by the Trial Examiner. Since the respondents were granted an ad- journment of the hearing for-5 days at the conclusion of the Board's case in order to permit them to obtain witnesses and prepare their- defense, we find that the respondents were not prejudiced by the- Trial Examiner's ruling. During the hearing, Malone Independent Union, a labor organization claiming to represent employees directly- affected by the proceeding, filed a petition for leave to intervene. This petition was denied by the Trial Examiner. During the course of the hearing, the Trial Examiner made other rulings upon motions. and upon objections to the admission of evidence. The Board has. reviewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. On November .26, -.1938, the Trial Examiner filed his Intermediate- Report in which he found that the respondents had committed unfair- labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) of the Act. He recommended that the respond- ents cease and desist from their unfair labor practices, reinstate to his- former position Alfred B. Blair with back pay ; upon request, bargain collectively with the Union as the exclusive representative of its- employees within an appropriate unit; and post appropriate notices. He -further recommended that the complaint be dismissed in regard to Charles Boyer and Myers Mallett; the alleged violation of Sec- tion 8 (2)' of the Act; and the alleged lock-out. On December 9, 1938, the respondents filed-their exceptions to the- Intermediate Report and, pursuant to leave granted by the Board,. filed a brief on January 26, 1939. . Thereafter, 'counsel for the Board and the respondents entered into a stipulation in settlement of the case, the Union having approved the terms thereof in advance. The stipulation provides as follows : STIPULATION It is hereby stipulated by and between counsel for Malone- Bronze Powder Works, Inc., and Malone Aluminum Corpora- tion, hereinafter' referred to as respondents; and counsel for the- National Labor Relations Board that : 1. Upon the basis of the pleadings, transcript, and Intermediate- Report, the National Labor Relations Board may enter its order- in the above-entitled matter in the following form : ORDER On the basis of this stipulation, and pursuant to Section 10 (c)-, of the National Labor Relations Act, the National Labor Rela-- 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Board hereby orders that respondents, Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, and their officers, agents, successors, and assigns shall : 1. Take the following affirmative action which the Board finds will ,effectuate the policies of the Act : (a) Offer to Alfred B. Blair immediate and full reinstate- ment to his former position without prejudice' to his seniority and other rights and privileges; (b) Make whole Alfred B. Blair for any loss of pay he has suffered by reason of his discharge or by the refusal of respond- ents to reinstate him, by paying to said Alfred B. Blair the sum 'of $200. (c) Post immediately in conspicuous places throughout their Malone, New York, plants, and maintain for a period of at least :sixty (60) consecutive days the following notice : NOTICE The Malone Bronze Powder Works, Inc., and Malone Alumi- num Corporation, and their officers, agents, successors, and assigns will not : (a) In any manner interfere with, restrain, or coerce their employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or -other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. (b) Discourage membership in any labor organization of their 'employees by in any manner discriminating in regard to their 'hire and tenure of employment, or any term or condition of their employment, because of membership- in any labor organization. (d) Notify the Regional Director for the. Third Region. (Buffalo, New York) in writing within ten (10) days from the -date of this order what steps respondents have taken to comply 'herewith. 2. Respondents consent to the entry by the United States Cir- •-cuit Court of Appeals for the Second Circuit of a decree enforc- ing an order of the Board in the form above, and expressly waive -their right to receive notice of the filing of an application for -the entry' of such a decree. 3. This stipulation is subject to the approval of the National Labor Relations Board. It is understood and agreed that in the ,event this stipulation is not approved by the Board, the provi- sions hereof shall be null and void and shall be without prejudice l1ALONE BRONZE POWDER WORDS, INC. 207 to the respective claims of the parties hereto, and the parties shall be relegated to the position they were in immediately prior to the execution of this stipulation, and this stipulation will not be used as evidence in this or any other case. 4. The approval of the consent order set forth in paragraph 1 .above by the Board and the execution of this stipulation shall conclude all matters arising in this case and the rights of all parties, but shall not preclude the taking of any steps necessary to procure the entry of a consent decree enforcing the Board's order in the United States Circuit Court of Appeals for the Second Circuit in the event that Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation do not comply with the terms, of this stipulation. IT IS FURTHER UNDERSTOOD AND AGREED that this stipulation embodies the entire, agreement between the parties and that there is no verbal agreement of any kind which varies, alters, or adds to this stipulation. On August 15, 1939, the Board issued its order approving the above stipulation and making it a part of the record herein. Upon the basis of the above stipulation and the entire record in the case, the Board makes the following : . FINDINGS OF FACT I. THE BUSINESS OF THE'RESPONDENTS Malone Bronze Powder Works, Inc., is a New York corporation with its principal office and place of business located.in the County of New York, New York. At Malone, New York, it operates a plant, which is the part of its business here involved, where it engages in the production and sale of bronze powder. The raw materials used by this respondent are copper and zinc. During the period from September 1, 1937, to August 31, 1938, this respondent purchased over $100,000 worth of such raw materials, of which 98 per cent were shipped to the respondent from outside the State of New York. The approximate-value of the finished products of this respondent during the same period was over $150,000. Forty per cent of such products were shipped to points outside the State of New York. Malone Aluminum Corporation is a New York corporation with its principal office and place of business located in the County of Frank- lin, New York. . At Malone, New York, it operates a plant which is ,the part - of. its business here involved, where it engages in the pro- duction and sale of aluminum powder. The raw material used by it is aluminum scrap. During the period from September 1, .1937, to 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 31, 1938, this respondent purchased approximately $80,000 worth of such raw material, of which approximately 75 per cent was shipped to the respondent from outside the State of New York. The :,approximate value of,the'finished products of this respondent during the same period was approximately $100,000, all of which were shipped. to points outside the State of New York. We find that the above-described operations of the respondents con- stitute a continuous flow of trade, traffic, and commerce among the several States. ORDER Upon the basis of the above findings of fact, stipulation, and the- entire record in the case, and pursuant to Section 10 (c) of the Na- tional Labor Relations Act, the National Labor Relations Board hereby orders that Malone. Bronze Powder Works, Inc., and Malone Aluminum Corporation, and their officers, agents, successors, and assigns, shall : 1. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Alfred B. Blair immediate and full reinstatement to his former position without prejudice to his seniority and other rights and privileges ; (b) Make whole Alfred B. Blair for any loss of pay he has suffered by reason of his discharge or by the refusal of respondents to rein- state him, by paying to said Alfred B. Blair the sum of $200. (c) Post immediately in conspicuous places throughout their Malone, New York, plants,, and maintain for a period of at least sixty (60) consecutive days the following notice: NOTICE The Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, and their officers, agents, successors, and assigns will not (a) In any manner interfere with, restrain or coerce their em- ployees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. (b), Discourage membership in any labor organization of their employees by in any manner discriminating in regard to their hire and tenure of employment, or any term or condition of their employment, because of membership in any labor organization. MALONE BRONZE POWDER WORKS, INC. 209 (d) Notify the Regional Director for the Third Region (Buffalo, New York) in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply herewith. AND IT Is FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed with respect to the allegations (1) that the respondents have engaged in unfair labor practices within the mean- ing of Section 8 (2) of the Act; (2) concerning Charles Boyer and Myers Mallett; (3) the lock-out of the respondents' employees; and ;(4) that the respondents have engaged in unfair labor practices within the meaning of Section 8 (5) of the Act.