Corning Glass Works

National Labor Relations Board - Board Decisions

Aug 5, 1952

100 N.L.R.B. 444 (N.L.R.B. 1952)

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that "it has been necessary for me to fill your job with a perma-
nent replacement," and that they should call at the plant to pick up
their personal belongings. All but two of the strikers responded by
removing their tools from the plant.
As of May 31, 1952, the Employer's payroll showed that the jobs
in question were filled by a complement of 12 employees. Testimony
presented by the Employer, which was uncontroverted, indicated that
(a) employees hired in the jobs of the strikers were intended as perma-
nent replacements, and were so informed, (b) there were no vacancies
in any of these jobs, and (c) the currently reduced payroll of only
12 employees merely reflected the extent of the Employer' s business.
The Union filed unfair labor practice charges with the Board on
June 25, 1951, which were dismissed by the Regional Director; and it
again filed charges on May 1, 1952, which were dismissed by the
Regional Director and are now pending before the General Counsel
on appeal by the Union .2 As no complaint has been issued by the
General Counsel, we must find that employees participating in the
strike are economic strikers.3 They are therefore ineligible to vote as
it appears on the basis of the present record that they have been perma-
nently replaced and that vacancies in their jobs do not exist 4
[Text of Direction of Election omitted from publication in this
volume]
s The Union's motion to dismiss pending disposition of the appeal is denied.
a Tames Square Stores Corporation, 79 NLRB 361; Big Run Coal & Clay Company, 93
NLRB 1351.
4 See, e. g., E. J. Kelley Company, 98 NLRB 486 ; Hamilton Foundry d Machine
Company, 94 NLRB 51.
CORNING GLASS WORKS and FEDERATION OF GLASS, CERAMIC & SILICA
SAND WORKERS OF AMERICA , CIO AND AMERICAN FLINT GLASS
WORKERS ' UNION OF NORTH AMERICA, AFL, AND ITS LOCAL No. 1007,
PARTIES TO THE CONTRACT . Case No. 1-CA-977. August 5, 1952
Decision and Order
On December 29, 1951, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent-had not engaged in the unfair labor practice alleged
in the complaint, and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the CIO filed ex-
ceptions; the General Counsel also filed a supporting brief. The Re-
spondent and the AFL filed briefs in support of the Intermediate
Report.
100 NLRB No. 73.
CORNING GLASS WORKS 445
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby rejects the findings, conclusions, and recommenda-
tions of the Trial Examiner except to the extent that they are con-
sistent with our Decision and Order herein.
1. _The record reveals, as the Trial Examiner has found, that the
Respondent was well aware of the CIO's organizing campaign when
the intensive AFL drive began in the plant on Saturday, June 16,
1951. The Trial Examiner has also properly found that group leader
Wilbrod Richard played an active role in the AFL's organizing effort 2
However, the Trial Examiner concluded that Richard was not a
supervisor within the meaning of the Act, nor did his position so
identify him with management that employees looked to him for
guidance regarding the Respondent's policies. Accordingly, the Trial
Examiner found that Richard's conduct could not be attributed to the
Respondent. We cannot agree.
Section 2 (11) of the Act provides :
The term "supervisor" means any individual having authority,
in the interest of the employer, to . . . transfer . . . assign,
reward, or discipline other employees, or responsibly to direct
them . . . if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Witnesses Morrissey and Mollis testified, without contradiction,
that Richard transferred employees from one machine to another;
Mollis further testified, also without contradiction, that on occasion
when Richard .discovered that employees were not working fast enough
picking bulbs off a continuous belt, Richard reported this fact to
Foreman John Tait, and Tait and Richard cut the employees' relief
period from 10 to 5 minutes. According to the witness, on one occa-
sion when the backlog was clearing, Richard told the employees pick-
ing up bulbs, "We'll give you ten minutes." The record contains fur-
ther undenied testimony that Richard replaces Tait when the latter
is ill, or out of the plant for several days.
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel . [ Chairman Herzog and
Members Houston and Murdock.]
2 Henry Joseph Morrissey testified , without contradiction , that at about 5 p. in on
Saturday , June 16, 1951 , he saw Richard bring another employee over to replace Robert
Simoneau , an inspector in the A. B. inspection department . Thereafter , Richard gave
Simoneau a supply of blank AFL membership cards, and Simoneau spent the remainder
of his working time, until 11 p . in., signing up employees in the AFL. Witness Morrissey
durther testified , also without contradiction , that on the night of June 16, he overheard
a conversation between Richard and Osowski , an ardent AFL solicitor . Richard asked
Osowski how many employees she had signed up and when she told him, he remarked
"we're in."
446 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
James L. Knapp, the Respondent's plant manager, testified that
Richard does not possess supervisory authority, and that all super-
visors are paid a salary, while group leaders are paid on an hourly
basis like rank-and-file employees. Knapp conceded, however, that
Richard normally does physical work only when he is filling in for a
production worker, and that most of his time is spent passing on to the
production employees the directives and orders from Foreman Tait.
Knapp's testimony further reveals, corroborating the testimony of
Morrissey and Mollis, that Richard, under the general direction of
Tait, can effect job transfers. Thus, it appears that if Tait tells
Richard to transfer 10 employees from one job to another, Richard
normally makes the individual selections and accomplishes the trans-
fers. As the Respondent's wage rates are based upon the particular
job an employee is performing, the job transfers which Richard makes
can alter the wages of the employees affected.
In view of the foregoing we find, contrary to the Trial Examiner,
that Richard was a supervisor within the meaning of the Act in June
1951, and that his active support of the AFL in its organizing cam-
paign is attributable to the Respondent. It follows, therefore, that
the Respondent has furnished unlawful assistance to the AFL in vio-
lation of Section 8 (a) (2) of the Act.
Our finding that Richard's conduct is attributable to the Respond-
ent would be the same even if we were not convinced of his super-
visory status. For the record clearly demonstrates, contrary to the
Trial Examiner's finding, that Richard occupied a position which
identified him with management in such a way as to cause employees
to look to him for guidance regarding the Respondent's policies. In
cases similar to this one, the Board has uniformly held employers
responsible for the conduct of group leaders who actively participate
in organizational activity .3
8 Harrison Sheet Steel Co., 94 NLRB 81, enfd . 194 F. 2d 407 ( C. A. 7) ; Union Twist
Drill Co., 88 NLRB 1361; The Ann Arbor Press, 85 NLRB 946; Siouv City Brewing Com-
pany, 82 NLRB 1061 . See also International Association of Machinists , Tool and Die
Makers Lodge No. 35 et at. v . N. L. R. B ., 311 U . S. 72 in which the Court said :
The Employer , however, may be held to _ have assisted the formation of a Union,
even though the acts of the so-called agents were not expressly authorized or might
not be attributable to him on strict application of the rules of respondeat superior.
We are dealing here not with private rights ( Amalgamated Utility Workers v. Con-
solidated Edison Co ., 309 U S. 261 ) nor with technical concepts pertinent to an
employer 's legal responsibility to third persons for acts of his servants, but with a
clear legislative policy to free the collective bargaining process from all taint of an
employer 's compulsion , domination , or influence . The existence of that interference
must be determined by careful scrutiny of all the factors , often subtle , which restrain
the employees' choice ant for which the employer may fairly be said to be responsible.
Thus, where employees would have just cause to believe that solicitors professedly
for a labor organization were acting for and on behalf of the management , the Board
would be justified in concluding that they did not have the complete and unhampered
freedom of choice which the Act contemplates.5
6 See Consumers Power. Co. v. N. L. R. B., 113 F. 2d 38, 444 Cf. Swift d Co. v. N. L.
R. B., 106 F. 2d 87, 93.
CORNING GLASS WORKS 447
2. We further disagree with the Trial Examiner's finding that there
is no proof in this case of disparate treatment by the Respondent of
the two competing labor organizations. The Trial Examiner has ap-
parently concluded that an employer, without violating Section 8 (a)
(2) of the Act, may actively champion the cause of one of two com-
peting unions so long as he makes no overt promise of benefit to em-
ployees who join the favored union, or no overt threat against em-
ployees who join the union the employer opposes. We cannot accept
this conclusion.
The Board has consistently held that an employer must maintain
strict neutrality when his employees are simultaneously being organ-
ized by two or more labor organizations.4 In such cases conduct show-
ing favoritism for one of the competing unions defeats the congres-
sional purpose of affording employees complete freedom in the selec-
tion of their bargaining representative.
The record before us is replete with testimony that admitted super-
visors did not remain neutral. Thus, it appears from undenied testi-
mony that Foremen Hultzman and Tait questioned a number of em-
ployees in the plant during working hours concerning their union
sympathies; 5 Hultzman and Tait pointed out to employees the ad-
vantages of the AFL and the disadvantages of the CIO; and when
individual employees, after such conversations, indicated that they
favored the AFL, they were congratulated by the foremen, and it was
suggested that they "pass it along" to their friends. Further, em-
ployee Mollis testified, without contradiction, that during the AFL's
intensive drive in the plant, he was approached by Richard and Tait,
and Tait said, "There's girls going around with AFL cards, and it
would be advisable if you signed one." When Mollis asked why he
should sign an AFL card, either Tait or Richard replied : "Well, there's
some CIO workers in there, and they're trying to get the CIO in, and
we don't want that. We're trying to get around that."
Under some circumstances expression of preference by supervisors
may be privileged under Section 8 (c) of the Act as may be simple
expressions of preference by an employer. In the context of the
whole case, including the Employer's hasty recognition of the AFL
on a card showing with rival organizing going on, however, the activ-
ities of these supervisors obviously reflect employer intent and action
to aid one of two competing labor organizations, which is not pro-
tected by Section 8 (c). We find that the statements of Hultzman,
4 See Sunbeam Corporation, 99 NLRB 546, and the cases cited therein.
5 Interrogation by an employer concerning the union sympathies of his employees is
uniformly held to constitute a violation of Section 8 (a) (1) of the Act. Standard-Cooaa-
Thatcher Company, 85 NLRB 1358; N. L. R. B. v. Chautauqua Hardware Corporation,
192 F. 2d 492 (C . A. 2). However , as the complaint herein does not allege that the inter-
rogation by Holtzman and Tait constituted an independent violation of Section 8 (a) (1),
we make no finding on this score.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tait, and Richard constituted more than mere expressions of opinion.
Instead, we find that they amounted to verbal pressure upon the em-
ployees to join the AFL; as such, the statements of the supervisors
can no more be disregarded than pressure exerted in other ways.6
3. To all intents and purposes the AFL's organizational efforts did
not begin in the plant until about 3 p. m. on Saturday, June 16, 1951,
the day after the Respondent agreed to meet with, the AFL and recog-
vaize it upon proof of majority representation. Between 3 p. m. on
Saturday, June 16, and about 2: 30 p. m. Monday, June 18, at least
13 employees openly devoted a great deal, if not most of their working
time, to soliciting signatures' for the AFL. At 2: 30 p. m. on Mon-
.day, or only 48 hours after the intensive AFL campaign began, the
Respondent's representatives sat down with the AFL representatives
and started to negotiate a contract while AFL cards were checked
against the payroll. By 6:15 p. m. the same afternoon the com-
mittee' checking the cards reported that the AFL had established a
majority, and a 55-page contract between the AFL and the Respond-
ent was executed covering approximately 860 employees.
Absent any evidence of assistance to the AFL, the Respondent's
hasty acceptance of the AFL's majority showing, and the drafting
of a complete 55-page contract in less than 3 hours, alone, in the face
of knowledge of the rival CIO activity and the possibility of duplica-
tion of cards, was improper.? When these factors are viewed to-
gether with the concrete evidence of widespread assistance to the
AFL by the Respondent's supervisors, we are compelled to conclude
that the Respondent did not preserve the required neutral position,
but instead rendered active support to the AFL in violation of Sec-
tion 8 (a) (1) (2) of the Act.
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in con-
nection with the operations of the Respondent described in section I
of the Intermediate Report, 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.
The Remedy
Having found that the Respondent has engaged in unfair labor
practices, we shall order that it cease and desist therefrom and take
certain affirmative action desgined to effectuate the policies of the Act.
6 N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7).
7 Sunbeam Corporation, supra.
CORNING GLASS WORKS 449
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. By assisting American Flint Glass Workers' Union of North
America, AFL, and its Local No. 1007, and by according continuing
effect to its contract with said labor organizations, the Respondent
has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (2) of the Act.
2. In the foregoing manner by interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section
7 of the Act, the Respondent has engaged in and is engaging in un-
fair, labor practices within the meaning of Section 8 (a) (1) of the
Act.
3. The foregoing unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Corning Glass Works, Central
Falls, Rhode Island, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing American Flint Glass Workers' Union of North
America, AFL, and its Local.No. 1007, as the bargaining representa-
tive of any of its employees employed at its Central Falls, Rhode
Island, plant, for the purpose of collective bargaining with it in respect
to grievances, labor disputes, wages, rates of pay, hours of employment,
and other conditions of employment, unless and until said labor organ-
izations shall have been certified by the National Labor Relations
Board.
(b) Performing and giving effect to its agreement of June 18,
1951, with American Flint Glass Workers' Union of North America,
AFL, and its Local No. 1007, or to any modification, extension, supple-
ment, or renewal thereof, or to any superseding agreement with said
labor organizations, unless and until said organizations shall have been
certified by the National Labor Relations Board.8
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-organiza-
8 However, nothing herein shall be construed to require that the Respondent vary or
abandon the terms or conditions of employment established in said agreement of June 18,
1951, or any modification, extension, supplement, or renewal thereof, or any superseding
agreement, or to prejudice the asses tion by the employees of any rights they may have
thereunder.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining, or other mutual
aid or protection, or to refrain from any and all such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from American Flint
Glass Workers' Union of North America, AFL, and its Local No. 1007,
as the representative of any of its employees employed at its Central
Falls, Rhode Island, plant, for the purposes of collective bargaining
with it in respect to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless and
until said organizations have been certified by the National Labor
Relations Board.
(b) Post at its plant at Central Falls, Rhode Island, copies of
notice attached hereto and marked "Appendix A." 9 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by Respondent's representative, be posted
by Respondent immediately upon 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.
(c) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
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 recognize AMERICAN FLINT GLASS WORKERS'
UNION OF NORTH AMERICA, AFL, AND ITS LOCAL No. 1007, as the
representative of any of our employees employed in the Central
Falls, Rhode Island, plant, for the purpose of collective bargain-
ing with us in respect to grievances, labor disputes, wages, rata of
In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CORNING GLASS WORKS 451
pay, hours of employment, or other conditions of employment,
unless and until said labor organizations shall have been certified
by the National Labor Relations Board.
WE WILL NOT perform or give effect to our agreement dated
June 18, 1951, with AMERICAN FLINT GLASS WORKERS' UNION OF
NORTH AMERICA, AFL, AND ITS LOCAL No. 1007, or to any modifi-
cation, extension, supplement, or renewal thereof, or to any super-
seding agreement with said labor organization involving the em-
ployees employed at the Central Falls, Rhode Island, plant, unless
and until said labor organization shall have been certified by the
National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that such rights
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.
WE WILL withdraw and withhold all recognition from AasERI-
CAN FLINT GLASS WORKERS' UNION OF NORTH AMERICA, AFL, AND
ITS LOCAL No. 1007, as representative of any of our employees
employed at the Central Falls, Rhode Island, plant, for the pur-
poses of collective bargaining with us in respect to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said- organizations
shall have been certified by the National Labor Relations Board.
CORNING GLASS WORKS,
Employer.
Dated------------------------ By------------------------------
(Representative ) (Title)
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 and Recommended Order
STATEMENT OF THE CASE
The complaint herein alleges that the Company has violated Section 8 (a) (1)
and (2) and Section 2 (6) and (7) of the National Labor Relations Act, as-.-
amended , 61 Stat. 136, by dominating and interfering with the formation and"
administration of, and contributing support to, the AFL and its local union,
jointly referred to herein as the AFL. The answers of the Company and the
AFL admit execution of the agreement referred to in the complaint , but deny
the commission of any unfair labor practices.
227260-53-vol . 100--34
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held before me at Providence, Rhode Island, on November 19
and 20, 1951. Pursuant to leave granted to all parties, briefs were thereafter
filed by General Counsel, the Company, and the AFL. The Company has sub-
mitted proposed findings of fact and conclusions of law ; these are accepted to
the extent that they are consistent with the findings and conclusions herein.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and stipulated and I find that the Company, a New York cor-
poration with its principal office at Corning, New York, does business in various
States of the United States, including New York, West Virginia, Pennsylvania,
Oklahoma, Michigan, and Rhode Island; that at its Central Falls, Rhode Island,
plant, it manufactures glass products valued at more than $1,000,000 annually,
more than 50 percent of which is shipped out of Rhode Island, and its annual
purchases exceed $1,000,000, more than half of which amount represents pur-
chases made outside of Rhode Island ; and that the Company is engaged in com-
merce within the meaning of the Act.
It was admitted and I find that Federation of Glass, Ceramic & Silica Sand
Workers of America, CIO, American Flint Glass Workers' Union of North Amer-
ica, AFL, and its Local No. 1007, severally, are labor organizations and admit
to membership employees of the Company.
II. THE UNFAIR LABOR PRACTICES
General Counsel declared at the opening of the hearing that he had no evidence
of domination or interference with the formation of the AFL. Attention is
therefore to be directed to the question of unlawful assistance to and support of
that Union by the Company.
References hereinafter made to the evidence, not ascribed to named witnesses,
represent uncontradicted testimony, or findings where conflicts have been re-
solved; findings are made herein on the basis of reliable, probative, and substan-
tial evidence on the record considered as a whole and the preponderance of the
evidence taken.
The CIO started to organize the plant about the middle of May 1951. It met
with employees in a local CIO office, and otherwise appears to have proceeded
covertly and slowly with its preliminary organizing efforts. (The evidence sug-
gests that there was more CIO activity after June 18 than before.)
In the meantime, by letter dated June 11, 1951, the AFL made a claim of
majority representation and requested a meeting with the Company to negotiate
a collective bargaining contract. Under date of June 16,' the Company agreed
to meet and to recognize the AFL after proof of majority representation' On
June 17, the AFL by telegram confirmed the appointment to meet at the plant on
the afternoon of June 18.
AFL cards were brought into the plant on the afternoon of June 16. From that
time until the meeting 2 days later, some half dozen employees devoted a great
deal if not most of their time to soliciting signatures for the AFL. Much of this
was on working time, but the employees so engaged were paid for that time.
' Because considerable testimony was taken on this point, I note the finding that this
letter was actually sent on June 15. (The addressee had it on Sunday, June 17.)
2 Testimony that a supervisor spoke of an election to be held suggests that at this time
the Company did not know whether the AFL represented a majority and anticipated a
contest between the two unions.
CORNING GLASS WORKS 453
When the Company met with the AFL on June 18, a committee was appointed
to check the AFL's cards against the company payroll while the terms of an
agreement were discussed and copies prepared contingent on proof of majority.
Provisions of contracts entered into at other plants of the Company were consid-
ered. On the committee's report that the AFL represented a majority of the
employees, the agreement was executed.
The agreement was entered into between the Company and American Flint
Glass Workers of North America, AFL, "including Local Union No. 1007, Central
Falls, Rhode Island." A charter was issued to Local 1007 at about that time,
whether before or after the agreement was executed is not clear; local officers
were elected on June 29. As noted above, General Counsel does not now claim
that the Company improperly assisted in the organization of Local 1007.
Wakefield, the CIO international representative, testified that he was "just
about ready" to file a representation petition with the Board when the agreement
was entered into between the Company and the AFL. The CIO thereafter pre-
pared and issued pamphlets in connection with its organizational drive. Those
pamphlets were dated June 29, 1951. The original charge herein was dated
June 26 and filed with the Board on June 28.
According to Wakefield, when the pamphlet was issued, his group wanted an
election only. Whatever the CIO's present desire, and the charge may be con-
sidered in that connection, the Board is not limited by a party's request for relief.
The issues are in the first place framed by the pleadings.
Although it does not in fact appear that the CIO campaign was a matter of
'.common knowledge" prior to execution of the agreement with the AFL, the un-
denied discussions between supervisors and various employees indicate that the
Company was aware of that campaign. Nevertheless, the CIO made no claim,
and there is no evidence that the Company had reason to believe, that it had suf-
ficient interest to warrant an election. Accepting the testimony that the AFL
campaign was started later, the additional circumstance that recognition was
accorded it on the third day of its intensive membership campaign 3 does not
warrant a finding of unfair labor practice whatever suspicion may be suggested by
the speedy recognition. The AFL submitted proof of majority representation
prior to execution of the agreement. There remains to be considered only whether
such apparent majority was unlawfully obtained with the support of the Company.
Richard, a group leader, played an active role in the AFL organizing effort.
Whether his activities are chargeable to the Company depends on his status. On
the one hand, it is urged that he assists John Tait, a shift foreman, and is him-
self a supervisor ; on the other, that he is a production and maintenance rank-
and-file employee.
It was testified on behalf of General Counsel that Richard gave people orders
to do jobs and replaced them on machines. The Company maintains that he
transmits the foreman's directions to other hourly paid employees, and can trans-
fer employees on jobs under the general direction of the foreman. While the
foreman directs that employees be transferred from a given group to another
job, Richard sometimes selects the individual employees who are to be taken from
the group. To this limited extent, if the employees concerned are on a dual rate
basis and if the old and new jobs carry different rates, Richard can determine
employees' earnings. Knapp, the plant manager, testified that this would not
"normally" occur since the foreman would effect the transfer where a change in
8 As noted supra, the AFL claimed majority representation before this membership drive
got under way. Whether that claim was valid is not the issue, nor whether the AFL was
reckless in undertaking to substantiate the claim.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rate is involved. Knapp testified further that, unlike supervisors, Richard is
paid at an hourly rate and time and one-half after 40 hours.
On behalf of the General Counsel, it was recalled that on an occasion when
certain employees' work was unsatisfactory, Richard told Tait, and the relief
period was cut until those employees caught up with their work. This does not
prove Richard's authority. Again, during the first half of 1951, when Tait was
absent, Richard performed his duties ; but this occurred not more than 4 days
during that period. Such sporadic relief does- not indicate that Richard was a
supervisor.' When Tait went on vacation, his place was taken by another
foreman.
The number of rank-and-file employees indicated on the organization chart
received in evidence does not suggest that Richard, the group leader listed under
John D. Tait, was a supervisor. While a finding of lesser but supervisory status
might be found where some 60 employees serve under a recognized supervisor,
the group leader in this case does not substantially lessen the number of em-
ployees under a single direction : Richard's authority, such as it is, extends to
more than 50 of the 60, and does not afford closer supervision than that which
the foreman exercises. Nor does Richard's position "identify (him) with man-
agement in such a way as to cause the employees to look to (him) for guidance
regarding the (Company's) policies."' I find that Richard is not a supervisor
within the meaning of the Act.
It is clear that in a concentrated and active May campaign, AFL supporters
among rank-and-file employees solicited membership on working time' both in
the presence of supervisors and for periods of such duration that the Company's
knowledge of their activity may be presumed. ' Unlike the host of cases, however,
in which an unfair labor practice is found because one of several rival unions
is thus favored, there is no proof here of disparate treatment. When the CIO
undertook to get signatures, its representatives were not molested even when
they solicited openly on company time and although supervisors were apparently
aware of their activity. In fact, the Company undertook to show that "all
unions," including some not involved in this proceeding, have been permitted to
solicit. Nor is there any evidence that the Company sponsored the AFL's
activity.
General Counsel urges that, however impartial, support of all points of view,
in this case by permitting discussion and solicitation during working tinsel, is
nevertheless "support" and violates the Act. With this argument I must
disagree.
Various related propositions are clearly established : With recognized excep-
tions, distribution of union literature on company premises may be prohibited;
likewise, solicitation of membership during working time ; such prohibitions are
unlawful if applied discriminatorily. But what of the antithetical reaction :
Come one, come all, conduct organizing activities, or not! Is this a year-round
Christmas spirit of goodwill acceptance, even furtherance, of employees' rights,
which the Company exhibits? Or does it constitute unlawful support and inter-
ference with those rights?
Keeping in mind that Section 8 of the Act is concerned with the protection
of employees' rights and that the Board has held that violation of Section 8 (a)
(2) constitutes interference with such rights, it is not interference and there-
fore no unlawful "support" to open the door wide to all activity: Any'support
4 E. W. Scripps Company, 95 NLRB 227.
5 Harrison Steel Sheet Co., 96 NLRB 192 . Cf. also Sioux City Brewing Company, 82
NLRB 1061.
6 Evidence that there was no drop in output does not meet this issue.
CORNING GLASS WORKS 455
derived from such permission cannot interfere with the rights of employees to
organize or to refrain from organizing , and is thus not violative of the Act'
The permission given to employees soliciting for the AFL was suspiciously
broad. Knapp testified that employees are permitted to solicit on behalf of any
union as long as they do not interfere with production, and that an employee
might leave his machine for long periods without interfering with its production.
While the AFL e took advantage of this attitude, the CIO made no attempt to
test it fully. We need not speculate concerning what action the Company might
take were other groups (and there might be many) as forward in their efforts
as the AFL was here ; nor what the effect would be on production. As stated,
there is no evidence of discrimination, and the Company offered to prove that
it treats all unions alike.
(No suspicion attaches to the fact that Tait knew that Botelho, an employee
who solicited for the AFL, had union cards. As reasonable as any other is the
conclusion that after that Union made its representation claim, it notified the
Company of its proposed campaign.)
In the absence of threat or promise of benefit, the advice or directions given
that employees who favored the AFL "spread the word" are no more violative
of the Act than are an employer' s statements of its own preference a Nor is
reference to trouble with a union at another plant," or a warning that strikes
called by a union would result in loss to the employees,11 a threat of reprisal by
the Company. In the latter connection, a distinction must be recognized between
a threat and a prediction conditioned upon later events.
We need not consider acts such as interrogation of employees concerning their
preference and how they would vote since, beyond the question of assistance
to the AFL, such acts are not within the issues in this proceeding.' In short,
there is no proof of such hostility toward the CIO as might make interrogation
by a supervisor support of the AFL and a violation of Section 8 (a) (2) of the
Act; the interrogation might be interference under Section 8 (a) (1), but that
is not here alleged. As for a supervisor 's expressions of preference, they are
privileged under Section 8 (c) .1E
I find that the Company has not interfered with, restrained, or coerced em-
ployees by dominating or interfering with the formation or administration of the
AFL or by contributing financial or other support to it.
Upon the basis of the above findings of fact and upon the entire record in
the case: 1 make the following:
I See The Electric Auto-Lite Company, 89 NLRB 1407; N. L R. B v. Brown Company,
160 F. 2d 449 (C. A. 1). Cf. also Horton Hubbard Mfg. Co , 94 NLRB 920.
B The AFL's apparent majority and the evidence of subsequent increase do not disprove
illegal support ; had there been such support, the majority might be a reflection of it.
B Tennessee Coach Company, 84 NLRB 703.
10 Salant & Salant, Inc. 88 NLRB 816.
11 Cf. Din ion Coil Company, Inc., 96 NLRB 1435 One employee, Mollis, testified that
Tait said that he would "have a better chance of working conditions" If he signed an AFL
card. Not only is this no clear promise of benefit, the statement including reference to
"less strikes," but it was made at a point when the witness appeared to be otherwise
confused
12 Starrett Brothers and Eken, Incorporated, 92 NLRB 1757.
18 While support of the AFL might be found in Supervisor Truchon's alleged threat,
made sometime between July and September, that the alternative would be "no union at
all," I do not credit the testimony concerning this gratuitous remark . The witness
impressed me as "trying to make a case."
As I stated at the hearing, Bessette's affidavit was received on the authority of Quest-
Shon Mark Brassiere Company, Inc, 185 F. 2d 285 (C A. 2), not as establishing fact, but
for the limited purpose of impeaching him.
456 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
CONCLIISIONS or LAW
1. The Company is engaged in commerce within the meaning of Section 2
(6) and ( 7) of the Act.
2. Federation of Glass, Ceramic & Silica Sand Workers of America, CIO,
American Flint Glass Workers ' Union of North America , AFL, and its Local
No. 1007, severally, are labor organizations and admit to membership employees
of the Company.
3. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (2) of the Act.
[Recommendations omitted from publication in this volume.]
JAMES THOMPSON & Co., INC. and TEXTILE WORKERS UNION OF
AMERICA, CIO. Case No. 9-CA-1762. August 5, 1952
Decision and Order
On December 12,1951, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor practice alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel and the charging Union filed
exceptions to the Intermediate Report and supporting briefs. The
Respondent filed exceptions to certain findings made in the Inter-
mediate Report and to certain rulings made by the Trial Examiner at
the hearing, together with a brief in support of the Trial Examiner's
ultimate conclusions.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed?
The ruling are hereby affirmed. The Board has considered Me Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions of the General Counsel and
the Union, and no merit in the Respondent's exceptions. ' Because of
3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Styles and Peterson].
2 The Respondent contends that the Trial Examiner erred in admitting evidence as to
employer solicitation of individual strikers to abandon the strike involved in this case on
the ground that such conduct was not pleaded in the complaint or in the General Counsel's
bill of particulars . There is no merit in this contention as the issue was fully litigated
at the bearing and the Respondent does not show that it was prejudiced in any respect
by the absence of such pleadings.
$ The Respondent also pled a motion to strike the Union 's exceptions and brief "on
the ground that it is a scurrilous document , which without any basis in the record or
elsewhere , impugns the motives of the Trial Examiner , and accuses him of deliberate
dishonesty ." We hereby deny this motion . The Union's exceptions and brief do not
exceed the bounds of proper argument.
100 NLRB No. 68.