Brewer-Titchener Corp.

In the Matter of BREWER-TITCHENER CORPORATION and INTERNATIONAL ASSN. OF MACHINISTS AND INTERNATIONAL BROTHERHOOD OF BLACK- SMITHS, DROP-FORGERS AND HELPERS, A. F. OF L. Case No. C-996.Decided January 8, 1940 Automobile and Electrical Forgings Manufacturi ng Industry-Interference, Restraint, and Coercion : charges of, not sustained-Company-Dominated Union: charges of, not sustained-Discrimination: charges of, not sustained-Collective Bargaining : charges of refusal to bargain collectively , not sustained-Complaint: dismissed. Mr. Peter J. Crotty, for the Board. Lusk, Buck, Ames & Pohner, by Mr. Morse E. Agnes, of Cortland, N. Y., for the respondent. Mr. John J. Walsh, of Utica, N. Y., Mr. Paul R. Hutchings, of Washington, D. C., and Mr. George Edgerton, of Cleveland, Ohio, for the I. A. M. Mr. John M. Tobin, of Philadelphia, Pa., Mr. Paul R. Hatchings, of Washington, D. C., and Mr. George Edgerton, of Cleveland, Ohio, for the Blacksmiths. Mr. H. K. Angell, of Cortland, N. Y., for the Alliance. Mr. Langdon West, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon changes duly filed jointly by International Association of Machinists,' herein called the I . A. M., and International Brotherhood of Blacksmiths, Drop-Forgers and Helpers , herein called the Black- smiths, which are affiliated with the American Federation of Labor and are together referred to herein as the A. F. of L. Unions, the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint dated July 21, 1938, against ]3rewer-Titchener Corpo- ration, Cortland , New York, herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor 1 Referred to in the complaint as International Assn. of Machinists. 19 N. L. R. B., No. 22. 160 BREWER-TITCHENER CORPORATION 161 practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and ( 5) and Section 2 (6) and (7 ) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act . A copy of the complaint accompanied by notice of hearing to be held August 4, 1938, was duly served upon the respondent and upon the A. F. of L. Unions. On August 3, 1938, the Regional Director postponed the hearing until August 8, 1938, and on August 6, 1938 , further postponed the hearing until August 10, 1938. Notices of said postponements were duly served upon the respondent and upon the A. F. of L. Unions. Pur- suant to stipulation of the parties the hearing was further postponed until August 15, 1938. Concerning the unfair labor practices, the complaint alleged in sub stance that the respondent on or about April 13, 1938 , and at all times thereafter, refused to bargain collectively with the A. F. of L. Unions, although they were designated as the collective bargaining repre- sentative by the majority of the respondent 's employees in an appro- priate unit consisting of the employees in the respondent's plants located at Cortland, New York, one of which is known as the Forging Division and the other as the Carriage Goods Division; that the re- spondent, on or about March 5, 1938, and thereafter , fostered, en- couraged, dominated, and interfered with the formation and adminis- tration of a labor organization of its employees known as Employees' Association of the Forging Division of Brewer-Titchener Corpora- tion , herein called the Association , and contributed support to it; that the respondent on or about March 23, 1938, terminated the em- ployment of Albert Widger and Richard C. Repe, on or about April 5, 1938, terminated the employment of Harland Benedict , and at all times since has failed and refused to reemploy and reinstate the said employees , and from on or about May 11, 1938 , to on or about May 18, 1938, gave less work to James Dinin than to other employees , because of the membership of the afore-mentioned employees in, and their affiliation with, the A. F. of L. Unions, and because they and each of them engaged in other concerted activities with employees of the respondent for the purposes of collective bargaining and other mutual aid and protection; and that the respondent, since on or about January 1, 1938, by the aforesaid acts and refusals to act and by other acts,. interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. On or about July 26, 1938 , the respondent filed an answer to the complaint admitting the allegations concerning the nature of its business but denying all other averments of the complaint. On or about July 29, 1938, the Association filed a petition for leave to intervene in the proceedings, which was denied by the Regional Director on Jaly 30, 1938. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the notices of hearing and of postponement thereof, and the stipulation for postponement , a hearing was held at Cortland, New York, from August 15 to 19, 1938, before Charles E. Persons, the Trial Examiner duly designated by the Board. At the commencement of the hearing the Association appeared and renewed its application for leave to intervene. The Trial Examiner denied the application. In view of our findings, conclusions, and order herein with respect to the allegations of the complaint that the respondent engaged in unfair labor practices within the meaning of Section 8 (2) and (5) of the Act, this ruling of the Trial Examiner and the prior ruling of the Regional Director denying the Association leave to intervene, did not deny to the Association any substantial right or interest. Accordingly we will affirm the rulings. The Board, the respondent, and the I. A. M., represented by counsel, and the Blacksmiths by a representative , participated in the hearing and were afforded full opportunity to be heard , to examine and to gross-examine witnesses , and to introduce evidence bearing on the issues. During the hearing, the Trial Examiner reserved ruling on a motion of counsel for the respondent to strike the testimony of James .Dunn . Thereafter, in his Intermediate Report, the Trial Ex- aminer denied the motion . During the course of the hearing the Trial Examiner ruled on other motions and on objections to the admission of evidence . The Board has reviewed these rulings of the Trial Examiner and finds that no prejudicial errors were committed. They are hereby affirmed. On September 27, 1938, the I. A. M. filed a brief with the Trial Examiner. On October 27, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served upon the respondent and the A. F. of L. Unions, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and accordingly recommended that the respondent cease and desist from its unfair labor practices , bargain collectively with the A. F. of L. Unions upon request, and take certain other affirmative action to remedy the situation brought about by its unfair labor practices . The Trial Examiner further recommended that the complaint be dismissed for insufficient proof in so far as it alleged that the respondent had engaged in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act. On November 5, 1938, pursuant to an extension of time, granted by the Board, the respondent filed exceptions to the Intermediate Report, BREWER-TITCHENER CORPORATION - 163 and requested oral argument before the Board. Pursuant to notice, oral argument was had before the Board at Washington, D. C., on September 7, 1939. The respondent and the A. F. of L. Unions were represented and participated in the argument. The Brewer-Titchener Corporation Workers Alliance, herein referred to as the Alliance, which' alleges that it is the same organization as the Association,2 appeared by counsel at the oral argument, and was. permitted to participate therein. Thereafter the Alliance filed a petition alleging that it had been designated as the representative for collective bargaining by -a ma- jority of the respondent's employees in an appropriate unit and pray= ing that the record be reopened in the instant case in order that it might introduce evidence of such designation. On October 19, 1939, the I. A. M. filed a motion in opposition to the afore-mentioned peti- tion, praying that the same be denied, and alternatively, that if the same should be granted, that the record in the instant case be re- opened for other purposes in said motion set forth. Assuming that the Alliance is the same,organization as the Association,3 or that the petition of the Alliance is timely made, it is nevertheless clear that the petition should be denied in view of the findings, conclusions, and order herein with respect to the allegations of the complaint that the respondent engaged in unfair labor practices, within the meaning of Section 8 (2) and (5) of the Act.4 Accordingly the petition and, in so far as it prays that the record in the instant case be reopened, the motion of the I. A. M. are hereby denied.5 The Board has reviewed the exceptions of the respondent to the Intermediate Report. For the reasons set forth below we sustain the exceptions to the finding of the Trial Examiner that the respondent engaged in unfair labor practices, within the meaning of Section 8 (1) and (5) of the Act, but find all of the other exceptions to be without merit except in so far as they are consistent with the findings, con- chisions, and order set forth below. 2 We make no determination herein with respect to this claim. 8 See footnote 2, supra. • In so far as the petition of the Alliance may be deemed a request for an investigation and certification of the representatives pursuant to Section 9 (c) of the Act, the denial thereof in the present proceedings is without prejudice to the filing of a new petition with the Regional Director in accordance with the Rules and Regulations of the Board. 11 In its motion the I. A. M. further prayed for dismissal of a petition filed with the Board by the respondent on September 7, 1939. By its terms, the petition would seem to be an application for an investigation and certification of representatives pursuant to Section 9 (c) of the Act, and as such would not be before the Board in the present pro- ceedings . However, at the oral argument before the Board, counsel for the respondent indicated that the petition was intended as a request that the record in the present proceedings be reopened . We shall , therefore, for the reasons stated in the text with respect to the petition of the Alliance , deny the petition of the respondent, without prejudice to the filing of a new petition with the Regional Director in accordance with the Rules and Regulations of the Board. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDING OF. FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a New York corporation, with its principal office in Cortland, New York, owns and operates three plants, two of which are located at Cortland, New York, and the third at Binghamton, New York, which is about 40 or 50 miles from Cortland. This case in- volves only the two plants at Cortland, one of which is known as the Forging Division, the other as the Carriage Goods Division, and both of which are sometimes herein referred to as the Cortland plants. In its Forging Division the respondent manufactures forgings for the automobile industry, insulators for use on electrical transmission lines, and, other products described in the record as "hooks." In its Car- riage Goods Division the respondent manufactures other types of auto- mobile forgings, metal folding chairs, ironing boards, banquet tables, and insulators for use on electrical distribution lines. In its third plant, called the Crandall Stone Division, the respondent makes stamp- ings out of sheet metal, of which about 50 per cent are produced for the automobile industry. During the year ending July 1, 1938, the respondent. used in its three plants steel, coal, oil, brick, and wood, having a total value of $400,000, of which 75 per cent represented purchases made outside the State of New York. During the same period the respondent manu- factured at its Cortland plants products having a total value of $850,000, of which 75 per cent were shipped to points outside the State of New York. The respondent stipulated that it is engaged in inter- state commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Blacksmiths, Drop-Forgers and Helpers is a labor organization, affiliated with the American Federa- tion of Labor, admitting to membership the respondent's hammermen, blacksmiths, their helpers, and press- and die-machine operators, including assistant foremen having no authority to hire or discharge. International Association of Machinists, also affiliated with the American Federation of Labor, is a labor organization admitting to ineinbership all of the respondent's production and maintenance em- ployees other than those admitted by the Blacksmiths, including assist- ant foremen having no authority to hire or discharge. Employees' Association of the Forging Division of Brewer- Titchener Corporation is an unaffiliated labor organization confining BREWER-TITCHENER CORPORATION 165 its membership to production and maintenance employees in the re- spondent's plant known as the Forging Division, who are paid on an hourly or piece-rate basis, exclusive of supervisors having power to, hire or discharge. III. TILE ALLEGED UNFAIR LABOR PRACTICES A. Alleged domination of and interference with, the formation and administration of the Association and support thereto; alleged dis- crimination in regard to hire and tenure of employment As we have stated above, the Trial Examiner, in his Intermediate Report, found that the evidence adduced was insufficient to sustain the allegations of the complaint that the respondent had engaged in unfair labor practices, within the meaning of Section 8 (2) and (3) of the Act. We have reviewed the record and we conclude that the findings of the Trial Examiner are correct. Since the A. F. of L. Unions filed no exceptions to the Intermediate Report and did not question the findings at the oral argument before the Board, we shall not review the evidence in detail. B. Alleged interference, restraint, and coercion In February 1938 the Committee for Industrial Organization 6 ap- pears to have attempted to organize employees at the Cortland plants,, but its efforts apparently ceased shortly thereafter. During February 1938, the A. F. of L. Unions also began their organizational campaign,, sending two organizers , Stephen Estey and John Tobin, who solicited employees at the Cortland plants to designate the A. F. of L. Unions jointly as their bargaining agents. A considerable number of the em ployees signed authorization cards and many attended the five meet- ings held by the A. F. of L. Unions in Cortland during February and March 1938. In the latter month the Association was organized and solicited members among the employees at the respondent's Forging Division. On March 9, 1938, Otis Chapman, one of the foremen in the Forging Division asked Walter Widger in the washroom "who" had attended the meeting of the A. F. of L. Unions the previous evening. Chapman testified, without contradiction that since the latter part of February "everyone" had been talking in the washroom about unions; that employees had "kidded" him about getting a raise for him through the A. F. of L. Unions ; and that any remarks he made about unions were 9 Now the Congress of Industrial Organizations. 'A notice of a meeting for the purpose of organizing the respondent 's employees to be held by the Committee for Industrial Organization on February 20, 10 - 8, was introduced as an exhibit at the hearing. 2830-0-41-vol. 19--12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the course of general discussions on these occasions. Chapman also testified that he continued to participate in these discussions until instructed at a foremen's meeting on May 3, 1938, not to do so. The foremen's meeting followed a complaint by Estey and Tobin, organizers of the A. F. of L. Unions.' Greene stated at the conference with the representatives of the A. F. of L. Unions that he would abide by the Act and that he would instruct the foremen to do likewise.. On May 3 Edward A. Brewer, president of the respondent and in charge of all questions of policy, including labor relations, met with the fore- men in the Forging Division. Brewer instructed them to maintain a neutral attitude toward the rival unions, to show no favoritism to- ward or prejudice against any employee because of his union activity, and to refrain from taking part in discussions concerning labor unions. Similar instructions were given on May 14 to the foremen in the Carriage Goods Division. We have no doubt that Chapman's question as to the persons attend- ing the meeting of the A. F. of L. Unions, if asked in an attempt to ascertain which employees were members of or active in the A. F. of L. Unions, would constitute proscribed interference with the rights of employees guaranteed in Section 7 of the Act.9 The record, however, negatives any such purpose on the part of the respondent, and indi- cates that Chapman was doing nothing more than participating in what was, and everyone regarded as, a free and open discussion.19 During this period leaflets of the A. F. of L. Unions were distributed in the Forging Division at the lunch hour, and were even placed on the workbench of A. L. Ferguson, another foreman. Employees were permitted to discuss labor unions during working hours.- Indeed, James Dunn, all employee in the trim die room of the Forging Division and temporary chairman of the employees organized by the A. F. of L. Unions, testified that there was so much talk among the employees during working hours that it was "like the 1936 presidential campaign." In the light of these circumstances, and particularly in view of the statement made by Green to Estey and Tobin and the instructions given to the foremen following the complaint by the A. F. of L. Unions, we 8 Apparently the complaint by Estey and Tobin was made on the ground that the re- spondent had promoted the Association and had discriminated against certain employees because of their membership in and activity on behalf of the A. F. of L. Unions. These charges, however, as we have pointed out in Section III A above, were not substantiated at the hearing. 9 See Matter of Foote Brothers Gear and Machine Corporation and United Office and Professional Workers of America, No . 24, 14 N. L. R. B. 1045, and cases cited in footnote 24 therein. 10 The only evidence with respect to the incident is the testimony of Richard C. Repe that he overheard the question. 11 Greene also testified , without contradiction , that the respondent had not objected to employees "visiting a little" in connection with these discussions, as long as their work was done. BREWER-TITCHENER CORPORATION 167 are of the opinion that Chapman's remark fails to establish any inter- ference by the respondent with the rights of employees guaranteed by Section 7 of the Act. C. The alleged refusal to bargain On April 13, 1938, Estey and Tobin met with Brewer and the man- agers of the Forging.and Carriage Goods Divisions, stated that the A. F. of L. Unions represented a majority of employees in the Cort- land plants, asked that they be recognized as the exclusive representa- tive of the employees in those plants, and presented a proposed contract covering hours and working conditions at both plants. Brewer stated that the respondent should have proof that the A. F. of L. Unions represented a majority of the respondent's employees in the Cortland plaiits before granting them such recognition. There is a conflict in the testimony as to whether or not Brewer then asked Estey and Tobin to show their authority to represent the employees; in any event, the A. F. of L. Unions did not offer to exhibit any proof of their alleged majority. The conference ended after Brewer requested that he be given a few days in which to consider the claims and proposals of the A. F. of L. Unions. On April 18, 1938, representatives of the Association requested Brewer to recognize the Association as the exclusive bargaining agent of the employees in the Forging Division; presented a proposed agree- ment for his consideration;-and offered to show their membership cards as proof that the Association represented a majority of such employees. Brewer declined to see their membership cards; told them of the claims of the A. F. of L. Unions; and ended the conference with the statement that he would take their proposal under consideration. On April 27, 1938, at a further conference with Brewer, Estey and Tobin renewed their request for recognition of the A. F. of L. Unions as the-bargaining agent of the employees in the Cortland plants, and offered to prove that the A. F. of L. Unions represented a majority of the employees in those plants. Brewer told them of the claims of the Association and stated that under the circumstances he believed that the respondent could not, consistently with its neutral position, resolve the conflicting claims of the A. F. of L. Unions and the Association. Brewer further stated that the controversy as to the representation of the respondent's employees appeared to him to be one which should be resolved by the National Labor Relations Board, and that until the Board had made a determination, the respondent was compelled to refrain from recognizing either the A. F. of L. Unions. or the Asso- ciation. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about April 29, 1939, Brewer again met with the Association's representatives, and gave their the same answer he had previously given to Estey and Tobin. On May 17, 1938, a conference, attended by Brewer, Estey, and two Field Examiners of the Board, was held to discuss the possibility of settling the question of representation either by a consent election or by a comparison of signed authorization cards of the two rival labor or- ganizations. Estey, however, asserted that the respondent had domi- nated the Association, and stated that the A. F. of L. Unions were, therefore, unwilling to abide by the results of a consent election or comparison of authorization cards, unless the results were favorable to the A. F. of L. Unions. Brewer denied that the respondent had domi- nated the Association, and stated that he did not think that the re- spondent or the Association would agree to an election or a count of cards under the terms demanded by Estey. Brewer further stated that, in any case, he did not want to agree to any procedure for the settlement of the controversy without the Association's becoming a party to the agreement. The next day the Association's representatives joined the other parties in a further conference concerning procedure to settle the issue. Estey again insisted upon the position he had maintained the day be- fore and, consequently, no agreement was reached. At the hearing the A. F. of L. Unions offered evidence of their designation by a majority of the employees at the Cortland plants on April 13, 1938, and thereafter. We find it unnecessary,, however, to make any finding with respect to the majority alleged. As appears from the facts set forth above the record does not, in any event, establish any refusal to bargain on the part of the respondent. For in conditioning recognition on April 13, 1938, upon proof of the ma- jority status of the A. F. of L. Unions, and thereafter, when confronted with conflicting claims of rival labor organizations, in insisting upon resolution of the issue of representation by the Board or by agreement of all parties, the respondent does not appear to have acted other than in good faith. Indeed, it would appear from the record that the charge against the respondent of refusal to bargain was founded upon the proposition, not sustained at the hearing, that the Association was a company-dominated labor organization, and that the respondent was, therefore, in no*position to contend that it had been under the duty to consider the claims made by the Association. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: BREWER-TITCHENER CORPORATION CONCLUSIONS OF LAW 169 1. The operations of the respondent, Brewer-Titchener Corporation, Cortland, New York, occur in commerce, within the meaning of Sec- tion 2 (6) of the Act. 2. International Association of Machinists, International Brother- hood of Blacksmiths, Drop-Forgers and Helpers, and Employees' Association of the Forging Division of Brewer-Titchener Corporation, are labor organizations, within the meaning of Section 2 (5) of the Act. 3. The respondent has not engaged in and is not engaging in any unfair labor practices within the meaning of Section 8 (1), (2), (3), and (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint issued against Brewer-Titchener Corporation, Cortland, New York, be. and it hereby is, dismissed.