Brillo Manufacturing Co., Inc.

In the Matter of BRILLO MANUFACTURING COMPANY, INC. and DISTRICT #5O, UNITED MINE WORKERS OF AMERICA Case No.. C-1442.Decided February 24, 1940 Metal Wools Manufacturing Industry-Interference, Restraint and Coercion: charges of, not sustained-Company-Dominated Union: charges of, not sus- tained-Discrimination : charges of, not sustained-Complaint : dismissed. Mr. Martin Rose, for the Board. Mr. Henry Woog, of New York City, for the respondent. Mr. Herman Edelsberg, of New York City, for the U. M. W. Mr. Burton A. Zorn, of New York City, for the Association. Mr. Theodore W. Kheel, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by District #50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, herein called the U. M. W., the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its com- plaint dated June 28, 1939, against the Brillo Manufacturing Com- pany, Inc., New York City, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint alleged in substance that the respondent dominated, supported, and interfered with the formation and administration of a labor organi- zation known as Employees' Mutual Benefit Association of Brillo Manufacturing Company, Inc., herein called the Association; dis- charged Julio. Gonzales because he refused to join the Association; transferred Francisco Castaneda and Arturo Velez to the night shift because they joined and assisted the U. M. W.; and by the foregoing acts, and by urging, persuading, and warning its employees to refrain from joining or remaining members of the U. M. W. and to join and 20 N. L. R. B., No. 76. 806 BR'LLLO - MANUFACT'URING COMPANY, INC. 807 remain members of the Association and by maintaining surveillance of meetings of its employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Copies of the complaint, notice of hearing, amended notice of hear- ing, notice of postponement, and notice of continuance were duly served upon the respondent, the U. M. W., and the Association. On September 13, 1939, the Association filed a written answer to the complaint denying that it was dominated and supported by the re- spondent and alleging affirmatively that it was a bona fide labor organization rightfully and properly representing a majority of the respondent's employees. On November 6, 1939, the respondent filed a written answer to the complaint admitting certain allegations per- taining to its business but denying that its operations affect com- merce among the several States or that it engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in New York City from November 6 through November 17, 1939, before Gustaf B. Erickson, the Trial Examiner duly designated by the Board. The Board, the respondent, the U. M. W., and the Association were represented by counsel and participated in the hearing. At the commencement of the hearing, the Association moved to intervene and the Association and the respondent each separately moved for a bill of particulars of the allegations contained in the complaint. The Trial Examiner granted the motion to intervene but denied the motions for bills of particulars. The Association also moved to consolidate this proceed- ing with a proceeding on a petition for an investigation and certifi- cation of representatives which it had filed with the Board on Octo- ber 28, 1938. The Trial Examiner did not rule on this motion. It is hereby denied. At the conclusion of the hearing, the respondent moved to dismiss the complaint. The Trial Examiner granted this motion in his Intermediate Report. During the course of the hear- ing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. His rulings are hereby affirmed. On December 6, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondent had not engaged in unfair labor practices within the meaning of Section. 8 (1), (2), and (3) of the Act and recommended that the complaint be dismissed. The U. M. W. subsequently filed exceptions to the Intermediate Report. On January 18, 1940, pursuant to notice duly served upon' all the parties, a hearing for the purpose of oral argument was held before 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board at Washington, D. C. The respondent and the U. M. W.. appeared by counsel and- participated in the hearing. The U. M. W.,. the respondent, and the Association filed briefs which the Board has considered. The Board has reviewed the exceptions to the Inter- -mediate Report and, in so far as they are inconsistent with the -findings, conclusions, and order set forth below, finds no merit in -them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT . Brillo Manufacturing Company, Inc., a New York corporation, is -engaged in the manufacture, sale, and distribution of steel and other metal wools and products made therefrom. Its principal offices and plant are located in New York City. During the year 1938, the respondent sold finished products amounting in value to over $1,500,000, of which more than 60 per cent were shipped to places located outside the State of New York. During the same period, the respondent purchased raw materials, consisting mainly of metal wire, soap, vegetable oils, and caustics, amounting in value to approx- imately $695,500. Of these raw materials, approximately 40 per cent were transported to the respondent's plant from outside the State of New York. II. THE ORGANIZATIONS INVOLVED District #50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, is a. labor organization admit- ting to membership employees of the respondent. Employees' Mutual Benefit Association of Brillo Manufacturing Company, Inc., is a labor organization admitting to membership employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Domination of the Association; interference, restraint, and coercion The Association and the U. Al. W. began to organize the respond- ent's employees in August 1937. At first the Association restricte& its membership to the employees in the machine shop. Following a_ meeting of the U. M. W. on August 28, 1937, however, the Associa- tion extended its jurisdiction to all non-supervisory employees.. Both the Association and the U. M. W. solicited members in the plant. The Association held its first meeting on September 4,'1937. BRTLLO MANUFACTURING COMPANY, INC. '' 809 Otto Stone, a watchman, attended this meeting on company time while his place was taken by Charles W. Stengel, superintendent in charge - of production, and. mailitenance. Stengel and. Kroessler, a foreman, made their automobiles available to employees to drive to: this meeting. On September 7, 1937, representatives of the U. M. W.-called upon Crosby Field, vice president in charge of production, alleged that the U. M. W. represented a majority of the respondent's employees in an appropriate unit, and demanded that the respondent recognize the U. M. W. and bargain with it as the exclusive representative of all such employees. Field contended that the U. M. W. should obtain certification from the Board. However, at the suggestion of the U. M. W., he consented to an immediate election in the plant to de- termine whether the employees desired representation by the U. M. W. or the Association. Field sought and obtained John Alt, who later became president of the Association, to act as a "watcher" for the Association at the polls. The U. M. W. received a majority of the votes cast in this election and was immediately recognized as exclusive representative of the respondent's employees. When representatives of the Association subsequently called upon . Field and demanded bargaining rights, they were informed that the respondent was obligated to and would deal exclusively with the U. M. W. Witnesses called by the Board testified to statements allegedly made by supervisory officials of the respondent prior to the election, tending to encourage membership in the Association and discourage membership in the U. M. W. All of these statements were denied. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, resolved these conflicts in favor of witnesses called by the respondent. Upon an examination of the record, we are not con- vinced that these supervisory officials made any of the statements ascribed to them. Following the election, the respondent and the U. M. W. bargained collectively and, after several weeks, negotiated a contract which took effect on October 1, 1937, to run until December 31, 1938. This con- tract granted the U. M. W. recognition "as the sole bargaining agency for its [the respondent's] production department employees." As David Elliott, a field representative for the U. M. W., admitted, the U. M. W. "won most of our demands. The main thing we lost out on was the union shop." Nevertheless, the U. M. W. began almost immediately after the execution of the contract to lose members to the Association. The drift was most pronounced during the latter part of 1937. On October 28, 1938, the Association filed a petition for an investigation and certification of representatives. There- after, it advised the respondent by letter that it represented a ma- 810 DECISIONS OF NATIONAL- LABOR RELATIONS- BOARD jority of its employees and "that any attempt to extend, modify or renew the contract" with the-U. M. W. "will be deemed of no effect."- Upon receipt of this letter, the respondent advised the U. M. W. that. in the light of the petition, "our said contract will be renewed only with such duly accredited organization, if any, as may be properly- selected as the.bargaining representative of our said employees." The` U. M. W. asserts that the respondent was responsible for its loss of members to the Association. It maintains that the respondent so interpreted the contract as to cause employees to become dis- satisfied with the U. M. W. and transfer their allegiance to the • As- sociation. In particular, it avers that the respondent (1) discon- tinued paying time and one-half for overtime to employees whose, relief men failed to appear on time and (2) engaged new - em ployees after the contract was executed while decreasing the work- week of regular employees. The respondent relies upon the contract in answer to both com- plaints. With respect to the first, the contract provides: It is recognized by the union [U. M. W.] that several of the machine operations are continuous, and that the absence of an employee or tardiness in reporting for work would stop opera tions. Because of that condition, the union agrees that when- ever an employee does not report promptly to work, then the employee who is to be relieved shall remain at said machine until proper replacement can be made. Since, as explained in the contract, certain operations are contin- uous and, by the failure of employees to appear on time, such opera-- tions are interrupted, the respondent considered that it was necessary to insist upon the enforcement of this provision. The U. M. W. also claims that the respondent decreased the amount of work it gave certain employees while hiring new employees in other departments. It points out that this was contrary to the practice which the respondent observed before the contract was executed. The contract provides in this respect as follows : The necessity of lay-offs shall be in the sole jurisdiction of the Firm [of the respondent], but the principle- of equal division of work in slow time shall be adhered to up to the point of pro- viding each worker, employed at the time of the signing of this contract, three days work per week, at his or, her regular work, whenever that is available; however, whenever there is less work than that, seniority in the Department or Departments where the lay-off occurs shall be recognized in the process of lay-offs. The U. M. W. does not maintain that the respondent breached this provision of the contract but rather that the respondent insisted BRILLO MANUFACTIURING COMPANY, INC. 811 upon a strict enforcement of this provision in order to weaken the prestige of the U. M. W.1 The respondent claimed, and its claim was not refuted, that production decreased following the execution of the contract. It also explained that it was introducing several new products at this time and, while in former years it divided work during slack.; periods, during the time in question it desired to train employees to operate its' new departments so that it might have qualified employees when production increased. To support its contention that the respondent arbitrarily enforced the terms of the contract in order to assist the Association, the U. M. W. points to a letter which Field addressed to the respondent's attorney in November 1937. Field had previously received a com- munication from several employees stating that they had resigned from the U. M. W. In writing to the respondent's attorney, Field remarked "that it is very much to our [the respondent's] advantage to encourage this movement [resignations from the U. M. W.] as far as it is within our means to do so." In answer, the respondent's at- torney advised Field that it was unlawful for him to interfere with the right of employees to join or not to join labor organizations and that he should avoid any conduct which might be construed as interference. In March 1938 the Association sponsored a dance which was at-, tended by approximately 400 persons. According to the chairman of the dance committee, the gross receipts from the dance totaled $495 while the profit earned by the Association amounted to $298. Tickets for the dance were 50 cents for the ladies and either 75 cents- or one dollar for men.2 .Ori the basis of the figures introduced into the record, the profit which the Association allegedly made appears excessive, particularly when it is compared with the profit of $54 which the Association earned' from a dance it ran in March 1939.3 The U. M. W. would infer from the fact that the Association could not satisfactorily account for its profit, that the respondent contrib- uted to the Association. There is, however, no affirmative proof in the record to establish or sufficient evidence from which the infer-' ence may reasonably be drawn, that the respondent contributed any, money to the Association in connection with this dance. 1 Had it considered that the respondent was not abiding by the terms of the contract, the U. M. W . could have insisted upon arbitration as provided for in the contract. z According to the minutes of the meeting of the Association of March 23 , 1938, tickets for the dance were to be 50 and 75 cents for the ladies and men, respectively. Louis Alverez, chairman of the dance committee , and Joseph Fernandez , who assisted him, maintained that the men were charged one dollar. s Although Alverez testified that the Association sold approximately 400 tickets, which obviously could not give it gross receipts amounting to $495, it was claimed that many persons paid the price of admission at the door. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,The dance of March 1938 was well attended -by supervisory, officials of the respondent. Stengel purchased 10 tickets and spent- approximately $20 or $25 in entertaining, employees with • drinks. , John Kittan, a foreman, purchased four tickets. John ' Pavelka; another foreman, bought five tickets although he did not attend the', dance. Frank Woods, also a foreman, purchased 10 tickets, two of which he gave to an employee. At other social functions of the-. Association, Stengel spent substantial sums in treating employees to drinks and their children to ice cream and milk. On the other hand, Stengel bought two barrels of beer for a U. M. W. picnic and the respondent subscribed to $12 worth of advertising in a journal • published by the U. M. W. Charles Carlo, a member of the U. M. W. who attended the dance, testified that Horace W. Fincke, the respondent's paymaster, spoke to him during the dance and advised him to join the Association. Fincke denied that the conversation took place as Carlo alleged. Bartolo Noble, an employee, averred that during a picnic of the Association, he heard Stengel tell several employees,, "Don't you know that if the C. I. O. stays in here I am going to lose my job." Stengel denied this statement, which was not corroborated by any employee allegedly present. During the hearing, other statements in support of the Association and in derogation of the U. M. W. were 'ascribed to supervisory officials. All were denied. In resolving these conflicts of evidence in favor of witnesses called by the re- spondent, the Trial Examiner found that the statements were "con- vincingly denied." Under all the circumstances, we do not find that the respondent's supervisory employees made any of these alleged statements. On or about March 6, 1938, Field posted on the respondent's bul- letin board a newspaper clipping from the New York Times with the caption "Goodrich Demands Union Accept Cuts," and subtitled, "Warns the C. I. O. Group That Further Decentralization Would Follow Refusal." Field explained that he posted the clipping to point out to employees that other factories were making wage reductions while the respondent was increasing wages. B. Conclusions with respect to the Association; interference, re-- straint, and coercion We are not satisfied that the record sustains either the charge that the respondent dominated, interfered with, or supported the Associ- ation or otherwise interfered with, restrained, or coerced its emn- ployees in the exercise of the rights guaranteed in Section 7 of the Act. Although there is some evidence that the respondent contrib- BR'ILLO MANUFACTURING COMPANY, INC. 813 uted slight support to the Association prior to the election, never- theless, in recognizing and bargaining exclusively with the U. M. W., the respondent rendered innocuous the effects of such assistance as it bestowed on the Association. The respondent not only recognized and bargained exclusively with the U. M. W., but executed a contract granting the U. M. W., as it admitted, "most of our demands." That the U. M. W. thereafter lost members to the Association was due, it appears, to the unfavor- able operation of certain provisions of the contract. On the record as made, we cannot say that the respondent was unreasonable in insisting upon strict observance of the contract, particularly since the contract was the product of several weeks of negotiation during which both the respondent and the U. M. W. made and accepted modifications of their original demands. It is true that Field revealed, in a letter to the respondent's attorney, that he would view resignations from the U. M. W. with favor. Such an expression of inward desire is, of course, of value in appraising an ambiguous course of conduct.' It'appears, however, that the loss of membership in the U. M. W. was attributable to circumstances arising from the operation of a contract lawfully negotiated and executed and not from any ambiguous conduct on the part of the respondent. As we have noted above, although the Association did not satisfac- torily explain the source of its profits from the dance it sponsored. in March 1938, the record does not support a finding that the respondent contributed to the Association. While Stengel and other supervisory officials were lavish in their support of this and other social functions of the Association, we do not consider that the respondent thereby contravened the Act, particularly since it also contributed to func- tions of the U. M. W. We are of the opinion that the newspaper clipping, under the circumstances here present, did not interfere with the rights of employees under the Act. We find that the respondent has not dominated or interfered with the formation or administration of the Association or contributed support thereto. We further find that the respondent has not inter- fered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Alleged discriminatory discharge of Julio Gonzales Julio Gonzales worked for the respondent for several years prior to 1935. He applied for reemployment on February 2, 1938, plead- ing that he was in financial distress. According to Gonzales, when 4 In the light of our ultimate finding , we need not pass upon the respondent 's contention that the letter from Field to the respondent 's attorney was a privileged communication. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stengel hired him he said that his job would be steady, "same as you was before." Gonzales was discharged on March 7, 1938, allegedly for failing to join the Association. He was not a member of the U.M.W. The respondent maintains that Gonzales was hired as a temporary employee to replace Nick Rodriguez who was ill. It is'not disputed that Gonzales was discharged on the day Rodriguez returned to work. Gonzales' personnel card, read into the record, contains the following markings : Date employed : 2/3/38. Temp. [temporary] Date left, 3/7/38. Reason : laid off. Gonzales admitted that Stengel told him, when he was hired, that "Nick was sick." He denied, however, that he was employed to take Rodriguez's place. Gonzales testified that during the month he worked for the respond- ent in 1938, Frank Woods, his foreman, advised him to join the Asso- ciation ; that on the day he was discharged, Woods said to him, "You never listen to me-you dumb fool." Woods emphatically denied that he had thus spoken to Gonzales. The Trial Examiner concluded, and we find, that "the evidence bears out" Woods' testimony. Gonzales also testified that Otto Stone, the watchman, informed him that he had overheard a discussion in the office indicating that if Gonzales did not join the Association, he would be discharged. Stone denied this con- versation, and we credit his denial. In the light of all the facts contained in the record, we find that the respondent,did not discharge Gonzales because he failed to join the Association. D. Alleged discriminatory transfers Arturo Velez was transferred from the day to the night shift on January 10, 1938. Although Velez was a member of the U. M. W., he was not particularly active in its behalf. He testified that the transfer resulted in a reduction of his wages; this claim was not sub- stantiated by the evidence introduced into the record. Velez testified that two weeks after his transfer, he complained to Field, who said "since what happened last October I am not doing any more favors for anybody." The Trial Examiner concluded and we find that Field did not thus speak to Velez. The respondent explained that the transfer was made to strengthen the night shift. John Kittan, foreman of the night shift, expected to go to Europe. In order to prepare for his absence, the respondent con- sidered that it was necessary to transfer Velez, one of its better men, to the night shift. When Kittan left for Europe in the spring of 1938, Velez was made acting assistant foreman at an increase in salary. He held this position for several months. Under all the circumstances, - BRILLO M ANU1FACTU'RING COMPANY, INC. 815 we find that the respondent has not discriminated against Arturo Velez because of his membership in the U. M. W. Francisco Castaneda was transferred to the night shift on March 17, 1938. He was financial secretary of the U. M. W. and active in its behalf. Shortly before his transfer, Mancinelli, an assistant foreman, allegedly told him that if he did-not stop his activity on behalf of the U. M. W., he would be transferred to the night shift. Mancinelli de- nied having made this statement. Castaneda also testified that Stengel asked him, after his transfer, if he was going to behave himself. Stengel denied that the conversation occurred as Castaneda testified. The Trial Examiner resolved these conflicts in favor of the respondent's witnesses. Upon an examination of the record, we find, in the light of the Trial Examiner's ruling, that these statements were not made. The respondent explained that in March 1938, when Castaneda was transferred, it was starting an additional shift in one of its two plants and that Castaneda's transfer was required for the purpose of efficiency. The record shows that since the employees in production work as a team, to obtain the greatest efficiency the respondent transfers men back and forth from its various shifts. This is particularly necessary when it starts a new shift. The respondent also asserted that Castaneda was transferred because Santiago. Gonzales, an employee on the night shift, asked to work on the day shift because of his health. Gonzales, when called as a witness, denied that he had made this request. Although this case is not free from doubt, we are not satisfied, in the light of all the circumstances, that the respondent transferred Cas- taneda to the night shift because he was a member of the U. M. W. Upon the basis of the foregoing-findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, Brillo Manufacturing Com- pany, Inc., New' York City, occur in commerce within the meaning of Section 2 (6) of the Act. 2. District x$50, United Mine Workers of America, and Employees' Mutual Benefit Association of Brillo Manufacturing Company, Inc., are labor organizations within the meaning of Section 2 (5) of the Act. 3. The respondent has not dominated or interfered with the forma- tion or administration of the Association or contributed support thereto within the meaning of Section 8 (2). 4. The respondent has not discriminated in regard to hire or tenure of employment or conditions of employment of Julio Gonzales, Arturo Velez, and Francisco Castaneda. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act within the meaning of Section 8 (1) of the Act. . ORDER Upon the basis of the foregoing 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 com- plaint against the respondent, Brillo Manufacturing Company, Inc., New York City, be, and the same hereby is, dismissed.