Owens-Illinois Glass Co.

National Labor Relations Board - Board Decisions

Mar 2, 1945

60 N.L.R.B. 1015 (N.L.R.B. 1945)

In the Matter of OWENS-ILLINOIS GLASS COMPANY and OWENS-ILLINOIS
GLASS WORKERS UNION, AFFILIATED WITH DISTRICT 50, UNITED MINE
WORKERS OF AMERICA
In the'Matter of OWENS-ILLINOIS GLASS COMPANY and GLASS BOTTLE'
BLOWERS ASSOCIATION OF U. S. AND CANADA, A. F. OF L.
In the Matter of OWENS-ILLINOIS GLASS COMPANY and OWENS-ILLINOIS
GLASS WORKERS UNION, AFFILIATED WITH DISTRICT 50, UNITED MINE
WORKERS OF AMERICA
Cases Nos. 14R-783,11 R-,806, and 14-C-876, respectively.Decided
March 2, 1945
DECISION
AND
ORDER
Pursuant to a Decision and Direction of Election of the, National
Labor Relations Board,' herein called the Board, an election was held
on December 23, 1943, among employees of Owens-Illinois Glass Com-
pany, Alton, Illinois, herein called the respondent, at its plant at Alton,
Illinois, to determine whether the employees desired to be represented
by Owens-Illinois Glass Workers Union, affiliated with District 50,
United Mine Workers of America, herein called the UMWA, or by
Glass Bottle Blowers Association of the United States and Canada,
affiliated with the American Federation of Labor, herein called the
GBBA,.for the purposes of collective bargaining, or by neither.2 At
the election, the GBBA received a majority of the votes counted.3 On
December 28, 1943, the UMWA filed objections, protesting the results
' 53 N. L R. B. 1114
s On September 17, 1943 , the day on which the UMWA had filed its petition for investiga-
tion and certification of representatives in Case No. 14-R-783, the UMWA had also filed
a charge in Case No 14-C-876, alleging that the respondent had violated Section 8 (1)
of the Act , together with a so-called waiver of its right "to protest any election which
may be held" in Case No 14-R-783 "on any ground set forth in Case No. 14-C-876 " On
October 21 , 1943 , the GBBA had filed its petition for certification in Case No . 14-R-806
and, on October 25, 1943 , the Board had ordered that Cases Nos 14-R-783 and 14-R-806
be consolidated On November 2, 1943 , a hearing was held in the consolidated cases. On
December 4, 1943, the Board had issued its Decision and Direction of Election , referred
to above.
3 Of 1,539 "valid " votes counted , 1,033 were for the GBBA , 463 for the UMWA, and 43
for neither . There were, in addition , 23 challenged ballots and 8 void ballots.
60 N. L R. B., No. 173.
1015
1016 DECISIONS OF, NATIONAL, LABOR RELATIONS BOARD
of the election because of alleged interference and coercion on the part
of the respondent .4 On February 8,1944, the Regional Director issued
his Report on Objections, reporting that the objections raised substan-
tial and material issues with respect to the election. On February 11,
1944, the GBBA filed exceptions to the Regional Director's report and
recommendations. On March 7, 1944, the Board issued an order di-
recting that a hearing be held on the objections to the election, and
consolidating Cases Nos. 14-R-783, 14-R-806, and 14-C-876.
On May 6,1944, the UMWA filed a first amended charge, upon which
a complaint was issued by the Board, alleging that the respondent
had engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1) of the Act, as more fully set forth in the Inter-
mediate Report. A hearing was held before a Trial Examiner in Al-
ton, Illinois, from May 29 to June 3, 1944, in which the Board, the
respondent, the UMWA, and the GBBA participated by their repre-
sentatives. During the course of the hearing, the Trial Examiner re-
served ruling for the Board on the respondent's objection to the
Board's order consolidating the representation and the complaint
proceedings and on various motions made by the respondent and the
GBBA to dismiss the objections to the election, in whole or in part.
The respondent's objection to consolidation is hereby overruled, and
the motions to dismiss the objections to the election are hereby denied.
At the close of the hearing, the UMWA moved to conform its objec-
tions to the election to the evidence with respect to formal matters ;
the GBBA similarly moved to conform its exceptions to the Report
on Objections to the evidence. These motions, which were referred
by the Trial Examiner to the Board, are hereby granted. The Board
has reviewed the rulings of the Trial Examiner made on other motions
and on objections to the admission of evidence and finds that no prej-
udicial error was committed. The rulings are hereby affirmed,
On September 14, 1944, the Trial Examiner issued his Intermediate
Report a copy of which is attached hereto, finding that the respondent
had engaged in and was engaging in violations of Section 8 (1) of the
4 In substance, in its objections the UMWA alleged that the respondent. (1) interfered,
with the conduct of the election by activities of its supervisory force in electioneering
and soliciting application cards for the GBBA and in instructing employees how to vote;
(2) distributed to each employee throughout the plant on the eve of the election a notice
which advised all employees to vote and which stated that the respondent would have
knowledge whether the employees voted, and that, if the employees voted for the unionn
other than the one with which it then had contractual relations, the plant would not
operate peacefully and efficiently ; (3) permitted, during working hours on the eve of the
election, adherents of the GBBA to stage demonstrations and to display placards inimical
to the U'AlWA ; (4) told its employees that they would be discriminated against if the
U11I1VA "lost" the election ; and (5) permitted the GBBA, prior to the election and during
working hours, to distribute oiienly GBBA membership hooks. The UDMWA further alleged
that the GBBA and the respondent issued nearly simultaneously on the eve of the election,
a leaflet and a booklet, respectively, announcing that vacation pay was increased, such
announcement being deliberately misleading and designed to influence the emplo yees in
their choice of a collective bargaining representative.
OWENS-ILLINOIS GLASS COMPANY 1017
Act. Exceptions to the Intermediate Report and briefs to support
the exceptions were thereafter filed by the Respondent and the GBBA.
Oral argument was held before the Board at Washington, D. C., on
January 18, 1945. The respondent the UMWA, and the GBBA were
represented and participated in the oral argument. Pursuant to the
Board's request, supplemental briefs were thereafter filed by the
respondent, the UMWA, and the GBBA. Upon consideration of the
entire record, we hereby adopt the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted below.
1. The respondent and the GBBA contend in substance that the
Board should limit its consideration of the evidence to events occur-
ring after December 11, 1943, the date on which the UMWA last ex-
pressed a desire to proceed with an election notwithstanding the pen-
dency of its unfair labor practice charges. The Trial Examiner found,
and we agree, that, by its conduct with respect to the announcement
,of its new vacation plan on or about December 22, 1943, more fully
set forth in the Intermediate Report, the respondent engaged in un-
fair labor practices within the meaning of Section 8 (1) of the Act
subsequent to December 11, 1943, and thereby interfered with the con-
duct of the election which was held on December 23, 1943. In view
thereof, we find it unnecessary to determine whether, by the expres-
sion of its desire to.proceed with an election, the UMWA thereby ex-
tended its written waiver of September 17 to December 11, 1943.
For the same reason, we express no opinion upon the effect, if any
of any such waiver upon the Board's power to prevent unfair labor
practices, or upon the exercise thereof.5
2. On December 21, 1943, 2 days before the election, the GBBA dis-
tributed a leaflet indicating that, through its negotiations with the
respondent, the GBBA had secured for all employees at the respond-
'ent's Alton plant a better vacation plan which the National War
Labor Board, herein called the W. L. B., had approved.6 The leaflet
stated that a local newspaper would verify the announcement. Upon
the request of the Alton Evening Telegraph, an Alton newspaper,
Plant Manager Flexon submitted all information available on the new
5 Wallace Corp . v. N. L R B , 323 U. S 248
6 For several years , the GBBA has represented the machine operators of the respond-
ent's various plants and has had closed -shop contracts covering such employees. The
record indicates that, at a bargaining conference in August 1943, the GBBA requested
a vacation plan with increased benefits , that the respondent submitted the new plan ;
and that the GBBA agreed thereto. On October 25 , 1943, the respondent , the GBBA,
and the American Flint Glass Workers Union , a labor organization representing other
employees of the respondent, jointly applied to the W L. B. for approval of the new
vacation plan. Such approval w as communicated to the respondent 's various plant
managers at a meeting in Toledo on December 15, 1943 Although the respondent (lid
not confine the benefits of the new plan to the machine operators but extended the plan
co all employees , including those eligible to vote in the election, it is clear that the
GBBA was not justified in claiming credit for the negotiation of the plan for all
employees.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation plan,' and on December 21, a news article stating that the
respondent had made an announcement, similar to that of the GBBA
in respect to the vacation plan, was published in the newspaper. On
December 22, the day before the election, a pamphlet setting forth the
details of the new vacation plan was enclosed by the respondent in each
employee's pay envelope. The respondent and the GBBA argue that
the benefits of the vacation plan were not of sufficient importance to
influence the employees in choosing their bargaining representative.8
We do not agree. The plan extended to the employees' vacation bene-
fits, over and above that provided in like plans of previous years, of real
and tangible value. Although it is virtually impossible to determine
fully the effect of such an announcement, made immediately prior to
an election, on the employees' free exercise of the right to select a
bargaining representative, we are of the opinion that the benefits of
the vacation plan were of such a nature that the employees were in-
fluenced in their choice of a bargaining representative by the an-'
nouncement by the GBBA of the W. L. B.'s approval of the plan,
which the GBBA unwarrantedly claimed to have negotiated for all
employees, and by the respondent's verification of such announcement,
coupled with distribution of copies of the new plan, all shortly before
the election.
The fact that previously the details of each year's vacation plan
were announced in the Alton plant in December, shortly before Christ-
mas, does not, in any respect, alleviate the effect of the announce-
ment of the 1944 plan immediately prior to the election. Announce-
ment of the 1944 plan was made in other plants of the respondent after
Christmas, in one instance as late as January 1, 1944. The record dis-
closes no reason why, in view of the pending election, the respondent,
could not have postponed announcement and distribution of copies of
the plan until after the election.
We do not agree with the argument advanced by the respondent
and the GBBA that the substantial margin of votes received by the
GBBA in the election indicates that the employees were not unduly
influenced by the announcement of the vacation plan. The contrary
7In submitting , among other things, copies of the GBBA announcement handbill, the
respondent ' s printed vacation plan , and minutes of GBBA-respondent bargaining con-
ferences , referred to above, Flexon told the newspaper representative that an election
was going to he held and that lie would not give the newspaper a story.
e The 1943 vacation plan provided that employees with less than 2 years of service
would receive a 3-clay vacation with 24 hours' pay ; those having served between 2 and 5
years would receive a 6-day vacation with 48 hours' pay ; and those with 5 years or
more of service would receive a 7-day vacation with 56 hours ' pay_ Under both the 1943
and 1944 vacation plans , only employees who had worked 1 , 200 hours in the respective
previous years were granted vacations with pay. The 1944 vacation plan provided that
employees with less than 2 years of service with the respondent would receive a 6-day
vacation with 48 hours' pay , those having served between 2 and 5 years would receive
a 9-clay vacation with 72 hours ' pay ; and those with 5 years or more of service would
receive a 12-day vacation with 96 hours' pay.
OWENS-ILLINOIS GLASS COMPANY 1019
inference is equally well demonstrated by the substantial margin of
GBBA votes. We are of the opinion that the respondent's conduct,
with respect to the announcement of the vacation plan, weighted-the
scales in favor of the GBBA in the election contest.
Likewise, the fact that the UMWA failed to take immediate action
in protest of the prejudicial announcement of the vacation plan is
immaterial. Faced with a fait accompli, little could be done in the
short time remaining before the date scheduled for the election. In
any event, we are primarily concerned here not with the UMWA's
dereliction, if any, in failing to counteract or otherwise, meet the
announcement, but rather with elements which make impossible an
impartial test of the employees' unfettered choice of representatives.
We find such an element in the circumstances relating to the announce-
ment of the vacation plan, as more fully set forth in the Intermediate
Report.
3. Since the respondent continued to engage in unfair labor prac-
tices subsequent to the date of the UMWA's waiver, as more fully set
forth in the Intermediate Report, the Board is clearly justified in
examining the entire course of the respondent's conduct. It is clear,
and we find, as did the Trial Examiner, that the activities of the re-
spondent's supervisory employees in soliciting on behalf of the GBBA,
in making statements in derogation of the UMWA, and in urging, per-
suading, warning, and threatening employees from becoming or re-
maining members of UMWA; the respondent's interrogation of em-
ployees concerning union activities ; its discriminatory treatment of
known advocates and stewards of UMWA; the respondent's public
announcement in the newspaper article of December 21, 2' days prior
to the election, verifying the GBBA's claim of responsibility for hav-
ing secured increased vacation benefits for all employees; and the dis-
tribution by the respondent of copies of the vacation plan to employees
on December 22, were integral parts of a course of conduct by the
respondent which was designed to defeat the organizational efforts
of the UMWA and to assist the GBBA in its organizing campaign.9
We further find that such conduct, which included threats of, as well
as actual, economic reprisals for membership in, and activity on behalf
of, the UMWA, was coercive and violative of Section 8 (1) of the Act.
O In reaching this conclusion , however, we attach no significance to the incident occur-
ring on September 22, 1943 , in which Plant Manager Flexon stated, in reply to employee
Harris' complaint about being watched by his foreman , "Maybe you had it coming "
We further accord no significance to the activities and statements of crew leaders and
tank foremen prior to December 4, 1943, the date of the issuance of our Decision and
Direction, in which we found crew leaders to be supervisory employees, and in which
tank foremen were excluded from the appropriate unit pursuant to the agreement of all
parties. Furthermore, we are of the opinion that the evidence does not support the Trial
Examiner 's finding that Plant Manager Flexon called upon the representatives of the
GBBA to conduct a countercampaign for the purpose of organizing the employees in
opposition to the UMWA.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Since the conduct of the respondent and of the GBBA precluded
an impartial determination of the employees' representative for the
purposes of collective bargaining, as required by the Act, we hereby
sustain the UMWA's objections to the election, overrule the GBBA's
exceptions to the Report on Objections, and set aside the election of
December 23, 1943.10 When the Regional Director shall advise us
that the time is appropriate, we shall direct that a new election be
held among the respondent's employees.
-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 the respondent, Owens-Illinois Glass Com-
pany, Alton, Illinois, and its officers, agents, successors and assigns
shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization by urging employees to join,
or to solicit members for, Glass Bottle Blowers Association of the
United States and Canada, affiliated with the American Federation of
Labor, or in any other manner rendering aid and, assistance to that
or any other labor organization; by urging, persuading, warning, and
threatening its employees to refrain from becoming or remaining mem-
bers of Owens-Illinois Glass Workers Union, affiliated with District
50, United Mine Workers of America ; by questioning its employees
concerning union activities; by threatening to discharge or transfer,
or by discharging and transferring employees, or in any other manner,
discriminating against them with respect to their hire, tenure, or con-
ditions of employment, because of their membership in or activities on
behalf of Owens-Illinois Glass Workers Union, affiliated with District
50, United Mine Workers of America; and, by interfering with the
free choice by its employees of a collective bargaining representative;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Owens-Illinois Glass Workers Union, affiliated with Dis-
trict 50, United Mine Workers of America, or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
10 Cf Matter of Seneca Knitting Mxlls, Inc ., 59 N L R B. 754; Mater of Continental
Oil Co , 58 N . L. R. B. 169. -
OWENS-ILLINOIS GLASS COMPANY 1021
(a) Post at its plant at Alton, Illinois, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director of the Fourteenth Region, shall, after being
duly signed by the respondent's representative, be posted by the re-
spondent immediately upon receipt thereof, and maintained by its for
sixty (60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS HEREBY FURTHER ORDERED that the election held on Decem-
ber 23, 1943, among the employees of Owens-Illinois Glass Company ,
at its plant at Alton, Illinois, be, and it hereby is, set aside.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist OWENS-ILLINOIS
GLASS WORKERS UNION, AFFILIATED WITH DIS-
TRICT 50, UNITED MINE WORKERS OF AMERICA or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection. All our employees are free to become or remain
members of this union, or any other labor organization.
OWENS-ILLINOIS GLASS COMPANY------ ------------------------------------------------------------
( 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.
MR. GERARD D. REILLY, concurring:
I concur in the result.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Melton Boyd and Miss Helen F. Humphrey, for the Board.
Mr. James M. Guiher, of Clarksburg, W. Va, Mr. A. J. Martin, of Toledo,
Ohio, and Mr. Floyd Flenon, of Alton, Ill., for the respondent.
- Mr. -nthony TV. Daly and Mr Newton Black, both of Alton, Ill., Mr. Gish A.
Johnson, of East St. Louis, 111, and Mr. Dale Clutter, of Washington, Pa, for
GBBA.
Mr. Jack Battuello, of Alton, 111, for UMWA
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 6, 1944, by Owens-Illinois Glass
Workers Union, affiliated with District 50, United Mine Workers of America,
herein called UMWA, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Fourteenth Region ( St. Louis, Missouri),
issued its complaint dated May 6, 1944, against Owens-Illinois Glass Company,
herein called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices , within the meaning of Section 8 (1) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat, 449, herein
called the Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent, Glass Bottle Blowers Association of the United
States and Canada, affiliated with the American Federation of Labor, herein
called GBBA, and UMWA 1
i On September 17, 1943 , UMWA filed with the Board's Regional Director a petition for
certification in Case No . 14-R-783 , and on the same date also filed a charge in the instant
case ( 14-C-S76 ), alleging in substance that the respondent had violated Section S (1)
of the Act by urging , warning, and threatening its employees from joining , remaining
members of, or assisting UMWA since September 1, 1943, by thereafter making derogatory
statements against UMWA , and by on or about that date calling a meeting of maintenance
department employees in which it informed them that an independent union would be
preferable to an affiliated union and would best serve the interests of the employees and
the respondent On September 17, 1943 , UMWA also filed with the Board ' s Regional
Director a waiver of its right to protest any election held in Case No.'14 -R-783 on any
ground set forth in Case No 14-C-876. On October 4 and on October 14, UMWA filed
an amended and a second amended petition , respectively , in Case No 14-R-7S3. On
October 21 , 1943, GBBA filed a petition for certification in Case No 14-R-806 On October
25, 1943, the Board, pursuant to Article III, Section 12 (c) (2 ) of National Labor Relations
Board Rules and Regulations-Series 2 , as amended , ordered that Case No. 14-R-783 and
Case No . 14-R-806 be consolidated . On November 2, 1943 , a hearing was held in the consol-
idated cases On December 4, 1943, the Board issued its Decision and Direction of Election.
On December 23, 1943, an election by secret ballot was conducted among the respondent's
employees found by the Board to constitute an appropriate unit GBBA received a
majority of the votes cast at this election . On December 28. 1943, UMWA filed with
the Regional Director objections to the election , alleging in substance that the respondent :
ii) interfered with the conduct of the election by the activities of its supervisory force in
electioneering and soliciting application cards for GBBA and instructing employees how
to vote , ( 2) distributing to each member throughout the plant on the eve of the election
a notice advising all the employees to vote, stating that the respondent would have knowl-
edge whether or not the employees voted, and further stating that if the employees voted
for the union other than the one with which they presently had contractual ielations the
plant would not operate peacefully and efficiently ; (3) permitted during working hours
and on the eve of the election adherents of GBBA to stage demonstrations and display
placards inimical to UMWA ; ( 4) told its employees that they would be discriminated
against if UMWA lost the election ; ( 5) permitted GBBA prior to the election to openly
distribute GBBA membership books during working hours ; and (6) the respondent and
GBBA issued nearly simultaneously on the eve of the election a booklet and leaflet in
which it announced that vacation pay was increased and that this announcement was
deliberately misleading and designed to influence the employees in their choice of an
organization . On February 8, 1944 , the Regional Director issued his report on the
objections of UMWA to the election , recommending that the Board find that the objections
OWENS-ILLINOIS GLASS COMPANY 1023
With respect to the unfair labor practices, the complaint alleges in substance
that the respondent, from about May 1, 1943, to the date of the issuance of the
complaint, interferred with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act by: (1) interrogating its
employees concerning their membership and activities in UMWA and other labor
organizations, discouraging them from being active therein, threatening to order
and-ordering the transfer, demotion, and discharge of certain of its employees
and the discontinuance of the work of other employees to discourage member-
ship and activities therein, ridiculing and discrediting the benefits to be derived
by its employees therefrom, and disparaging such labor organizations; and
(2) manifesting to its employees its preference that they become members of
and assist GBBA, recognizing and accrediting GBBA as the collective bargaining
representative in a unit of employees in its Plant No 7 for which GBBA pre-
viously had not bargained and was not chosen by an uncoerced majority of
such employees, and persuading such employees to vote for GBBA at an election
conducted by the Board on December 23, 1943.
The respondent filed an answer, dated May 11, 1944, in which it admitted
the jurisdictional allegations of the complaint, but denied that it had engaged in
the unfair labor practices alleged, and set forth certain affirmative averments
by way of defense.'
Pursuant to notice, a hearing was held at Alton, Illinois, from May 29 to June
3, 1944, before David Karasick, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The Board, the respondent, and GBBA were each
repietented by counsel, and UMWA by its representative ; all participated in
the hearing. Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded all parties.
At the beginning of the hearing, motion by counsel for the respondent to dismiss
the complaint, on substantially the same grounds as those set forth in the respond-
ent's answer, was denied. Motion of GBBA to dismiss the complaint because of
the waiver filed by UMWA' was also denied. GBBA then moved, on the same
ground, to dismiss so much of the proceedings as related to the objections to the
election. Ruling on this motion was reserved for the Board.
During the course of the hearing, counsel for the Board offered in evidence the
deposition of Byron 0 Harris, taken at St. Louis, Missouri, on May 10, 1944,
pursuant to a stipulation signed by all the parties and an order of the Regional
Director permitting the taking of such deposition, in accordance with the provi-
sions of Article II, Section 20 (f) of National Labor Relations Board Rules and
Regulations-Series 3. The respondent objected to the deposition on the ground
that it related to matters which had occurred long prior to the election and there-
fore were not properly to be considered in this proceeding, and further moved
raised substantial and material issues with respect to the election e GBBA filed objections
to the report and recommendations, dated February 11, 1944. On March 7, 1944, the
Board issued its order directing that a hearing be held on the objections to the election,
and, pursuant to Article II, Section 36 (b) and Article III, Section 13 (c) (2) of National
Labor Relations Board Rules and Regulations-Series 3, further ordered that Cases
Nos 14-R-783, 14-11-806, and 14-C-876 be consolidated On May 6. 1944, UMWA filed
with the ' Regional Director a first amended charge in Case No. 14-C-876, and on the same
date the Regional Director issued a notice of consolidated hearing in the three cases
'The respondent has pleaded by way of affirmative defense in substance that (1)
the respondent believes that the results of the election show the exercise of a free choice
by its employees and that the election should be approved and confirmed by the Board ;
and (2) that by participating in the election, UMWA waived its charges alleging the
commission of unfair labor practices , which had been previously filed, and is now
estopped from relying thereon in an attempt to vacate and set aside the election The
answer concluded with a prayer that the complaint be dismissed
See footnote 1, supra.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to exclude so much of the deposition as referred to activities of the respondent's
plant manager relating to efforts to create a company-union on the ground that
no allegation of a violation of Section 8 (2) of the Act appears in the complaint.
The objection was overruled, the motion to exclude denied, and the deposition
was received in evidence. Ruling on the objection of the respondent, made during
the course of the deposition proceedings, to the Board's order consolidating the
cases on the ground that the proceedings are entirely different and have different
objectives and aims, was reserved for the Board Rulings on various other
motions and objections of the parties as set forth in the deposition were made
by the undersigned during the hearing.
During the course of the hearing, the respondent moved to strike the testimony
of Mable Tindle and Harry Duvall, witnesses for the Board, on the ground that
the testimony of Tindle related to events which had occurred prior to the election
and the filing of the original charge by UMWA, and that the testimony of Duvall,
which related , among other matters, to his discharge by the respondent, was
barred by reason of a settlement agreement entered into between the respondent
and the Board whereby Duvall had been reinstated with back pay. These motions
were denied.
At the conclusion of the hearing, motions of the Board and of the respondent
to conform the complaint and the answer, respectively, to the evidence insofar
as formal matters are concerned were granted. Ruling was reserved by the
undersigned on various motions presented by the respondent and GBBA at the
close of the hearing. 4 The motions are hereby denied. In addition , ruling was
reserved for the Board on other motions presented by the respondent, GBBA,
and UMWA
None of the parties presented oral argument at the close of the hearing. Fol-
lowing the hearing, the Board, the respondent, and GBBA each filed a brief.
On August 25, 1944, a stipulation between the parties, providing that certain
corrections be made in the transcript of the testimony , was filed with the under-
signed . On August 29, 1944, the undersigned issued an order directing that cor-
rections be made in accordance with said stipulation.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Owens-Illinois Glass Company , an Ohio corporation , with its principal place
of business in Toledo , Ohio, is engaged in the manufacture , sale, and distribution
4 The respondent and GBBA moved : ( 1) to dismiss the complaint ; ( 2) to strike all
evidence in the record' except that relating to the objections to the election and that
such latter evidence , if admitted at all , be limited , alternatively , to the following periods
of time : ( a) between December 11, 1943, the date of the conference at the Regional
Office of the Board at which the date of the election was decided upon , and the comple-
tion of the election and the announcement of the vote on December 23, 1943 , ( b) be-
tween December 4, 1943 , the date of the Board's Decision and Direction of Election, and
December 23, 1943 ; ( c) between November 2, 1943 , the date of the hearing in the repre-
sentation proceedings , and December 23, 1943 , or (d) between September 17, 1943, the
date upon which UMWA filed a waiver of its right to object to the election on any of
the grounds set forth in the original charge , and December 23, 1943 ; and ( 3) to exclude
all evidence concerning a parade held in the respondent 's plant on December 23, 1943,
after the results of the election had been announced.
5 Ruling was reserved for the Board on motions of the respondent and GBBA to dismiss
the objections to the election, and motions of UMWA and GBBA to conform the objections
and the exceptions theieto, respectively , to the evidence insofar as formal matters are
concerned.
OWENS-ILLINOIS GLASS COMPANY 1025
of glass containers and related products . Plant No. 7 , located at Alton , Illinois,
herein called the plant, is the only plant of the respondent involved in these pro-
ceedings. During the year 1943, the respondent purchased for use at Plant No.
7 raw materials exceeding $100,000 in value, of which more than 50 percent was
obtained from points outside the State of Illinois. During the same period the
respondent manufactured at Plant No. 7 finished products exceeding $100,000 in
value, of which more than 50 percent was shipped to points outside the State
of Illinois. The respondent concedes for the purpose of these proceedings that
it is engaged in commerce within the meaning of the Act.'
1I. THE OliGANTZATIONS INVOLVED
Owens-Illinois Glass Workers Union, affiliated with District 50, United Mine
Workers of America, is a labor organization which admits to membership,
employees of the respondent.
Glass Bottle Blowers Association of the United States and Canada, affiliated
with the American Federation of Labor, is a labor organization which admits
to membership employees of the respondent.
Ill. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the fall of 1942, Harry Duvall, then a welder's helper in the respondent's,
plant,' secured membership application cards of the American Federation of
Labor, and, with the aid of Grant Hockett, a welder, distributed them among
the employees in the maintenance department. In about April 1943, the Inter-
national Association of Machinists, a labor organization affiliated with the
American Federation of Labor, herein called the IAM, attempted to organize the
employees in the maintenance department, and Hockett and Duvall were active
on its behalf.
On May 19, a representative of the IAM sent a letter to Floyd Flexon, the,
respondent's plant manager, stating that a majority of the employees in the,
maintenance department has designated the IAM as their bargaining agent
and requesting that Flexon meet with him. A short time thereafter, Duvall and
Harley Lievers, a welder, were taken to Flexon's office by Tom Acker, superin-
tendent of the maintenance department, who asked Duvall and Lievers what
they thought about joining GBBA 8 When they arrived at Flexon's office, they-
were asked by Flexon why they wanted a union and were told by him that the
respondent could build up enough evidence to discharge them whenever it saw
fit and that Duvall would be the "goat." 9
The foregoing findings are based upon a stipulation entered Into between counsel for
the Board and for the respondent.
I Duvall later became a welder.
8 Although Acker, «ho was called as a witness by the respondent , was asked whether
he had exercised or attempted to exercise any influence on any of the employees either,
for or against the two unions involved herein, and answered that he had not, he did not
specifically deny that he had interrogated Duvall and Lievers about GBBA, and the under-
signed finds that he did do so as above set forth
U The foregoing findings with respect to the statements made by Flexon are based upon
the mutually corroborative testimony of Duvall and Lievers Flexon testified that a day or
two before the meeting in question , he heard Duvall and Lievers arguing about a union
and joined the discussion , that later he heard that they uuere talking in the plant and
called them to his office , that he could not recall any particular statement which he had
made atmthat time , but denied that he had threatened to discharge either of the employees
because of their union activity . In this respect , employee Harris testified that Flexon
628563-45-vol 60 66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before May 23, Claude Gentry, foreman of the steelworkers and
welders in the maintenance department approached each employee under his
supervision and asked him whether he wanted a union and whether he had
signed a union application card. Gentry compiled a written list of the answers
given by each of the employees and thereafter made a report to Plant Manager
Flexon.10
In the latter part of May, according to the undenied testimony of employee
Hockett, Adam Manns, foreman of the labor and construction gang in the
maintenance department, asked Hockett if he was distributing IAM application
cards, and when Hockett admitted that he was, Manns suggested that they all
get together and have an inside union of their own in the plant.
On June 3, the respondent discharged Duvall, as noted hereafter. On the same
day, after Duvall had been discharged, Plant Manager Flexon approached em-
ployee Hockett, told the latter that Duvall had been discharged but that he had
no intention of getting rid of Hockett, asked Hockett what he thought he could
gain by the union, and stated that he thought Hbekett was a little upset and
should come to earth and get his feet on the ground and relax and everything
would be all right "
On June 9 or 10, approximately a week after Duvall had been discharged,
according to the testimony of Hockett, Foreman Gentry asked Hockett if he would
still join the union if he had then known what he now knew. Gentry admitted
that he had made such a statement to Hockett and explained that he did so
because, Hockett had been called to Flexon's office a number of times, that he
appeared to be nervous and.run clown and not in good health, and that what he
had in mind was whether Hockett would have repeated what he had done if he
had known that he would be subjected to such meetings.
About a half hour after this conversation, Hockett was sent to Flexon's office
by Gentry. Flexon again asked Hockett what he thought he would gain by the
Union, and stated that union officers were rotten and corrupt, that they were
like politicians, and that all they did was collect dues. Flexon admitted that he
had made substantially these statements to Hockett
On June 15, Hockett and Byron Harris, the latter a pipefltter in the maintenance
department, attended a conference at the Regional Office of the Board concerning
the IAM's petition for certification and a charge which it had filed alleging the
discriminatory termination of employment of Duvall. On the following day,
Hockett and Harris were called to Plant Manager Flexon's office where the latter
told them that since they had attended the conference on the prior day he pre-
sumed that they represented the employees in the maintenance department, and
that he wanted their permission to hold a meeting of the employees in the
department for the purpose of talking to them and seeing how they felt about
having a union of their own. Hockett and Harris replied that Flexon was the
had stated on a number of occasions that he would discharge employees because of their
union activities but that he later stated that he could do so but would not In view of
the numerous other anti-union statements made by Flexon, as otherwise shown herein,
and in view of his admission that lie called the employees to his office and his failure to
recall what he said at that time, the undersigned does not credit his denial and finds
that he made the statements attributed to him by Duvall and Lievers, as set forth
above.
10 Gentry admitted that he had questioned the employees under his supervision in the
manner indicated.
ii The foregoing finding is based on the testimony of Hockett which was in substance
.corroborated by Flexon, who did not, however, make any reference in his testimony either
by way of affirmance or denial that he had asked Hockett what he thought he could gain
by the union. 0
OWENS-ILLINOIS GLASS COMPANY 1027
boss, that they could not tell him what to do, and that it was up to him to
-decide whether he wished to hold such a meeting.
On or about June 17, the IAM called a strike of the respondent's employees,
at Plant No. 97,12 and UMWA distributed leaflets urging the employees in Plant
No. 7 to remain away from work and support the strike called by the IAM
On the afternoon of June 17, Flexon conducted a meeting of all the employees
in the maintenance department at which he told them that he did not see how
they could get along if they got an outside union, that he would like to keep
it one happy family, just as they always had, that the respondent had con-
tracted out the maintenance work in other plants and could do the same thing
at Plant No. 7 and cut the force down if the employees got an outside union,
that he did not see why they could not have an organization in the maintenance
department similar to that of the Bell Telephone Company or the Standard Oil
Company, that if they formed an inside union he would go the limit for them and
get them a contract and if he could not get it for them in six months he would
bring in the organizers of all the other unions and let the employees choose the
one they wanted, that he would like to see the maintenance department make
history by starting such an organization which could then spread through the
rest of the plant, and that he would give the IAM representative a job"
During the morning of June 19, another meeting of the employees of the main-
tenance department was held. This meeting was opened by Plant Manager
Flexon who was accompanied by Tom Acker, superintendent of the maintenance
department. A committee composed of Lawrence Foster, Allen Augenbaugh,
Jim Montague, all crew leaders,14 and Chris Anton, an employee in the Mainte-
nance department, sat at the front of the room "
Flexon`told the assembled employees that they could elect officers and form a
union for the maintenance department, which would be called the Oulzed Main-
tenance Organization. He held copies of two documents in his hand, one of which
he said the employees could sign and would thereby be released from the IAM
and the other of which when signed would constitute membership in the OnIzed
Maintenance Organization.16 Flexon together with some of the supervisory per-
12 Plant No 7 is engaged in the manufacture of glass containers, while Plant No 97 is
engaged in the manufacture of mold and machine parts Both plants are located in
Alton, Illinois. As noted hereafter, in the latter part of July, the IAM withdrew in its
efforts to organize the employees in Plant No. 7.
11 The foregoing findings are based upon the mutually corroborative testimony of em-
ployees Harris, Baird, and Hockett, which was not denied by Flexon who explained that
such statements as he had made to the effect that the work would be contracted out
referred to the fact that Plant No. 7 is the only one of the respondent's plants which
maintains its own maintenance crew and that if there were any interference with the
work, such as by reason of a jurisdictional dispute, it would be necessary to have the
work performed by an outside contractor, as was done in the other plants
11 In its Decision and Direction of Election in the representation proceedings (Cases
Nos. 14-R-783 and 806), 53 N. L. R B. 1114, the Board found that crew leaders were
supervisory employees and excluded them from the unit therein found appropriate The
respondent and GBBA contend that crew leaders are not supervisory employees and that
the Board erred in so holding The record in the present proceeding amply support the
Board's determination, and the undersigned finds that .crew leaders are supervisory
employees
15 Augenbaugh, who testified on behalf of GBBA, admitted that he had been asked to serve
on the committee by Flexon
° These documents were inscribed as follows :
ALTON, ILLINOIS,
June 19, 1943.
Due to the fact that when I accepted the International Association of Machinists
as a bargaining agent they were affiliated with the American Federation of Labor
and have since withdrawn, and for other personal reasons, I would like to withdraw
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonuel present, then left the room, stating as he did so that he would turn the
meeting over to the committee. Crew Leaders Montague and Foster spoke and
various officers and committees were elected. This meeting lasted approximately
33/4 hours, and since it was held on Saturday the employees who attended were
paid overtime wages.'
The following evening, according to the uncontradicted testimony of Hockett,
Crew Leader Mont gue called upon Hockett at the latter's home and sought to
induce Hockett to accept an inside union at the plant.
On the succeeding day, Crew Leader Augenbaugh told employee Harris that
the employees should all get together and try to make a good thing out of the
new organization. Augenbaugh did-not deny this testimony of Harris which
appears in the deposition of the latter.
On July 28, the Regional Office of the Board received a document stating that
the Onlzed Maintenance Organization had been disestablished on July 16, 1943
This document, which was signed by officers and committeemen of the organiza-
tion, contained the signatures, inter alia, of Crew Leaders James Montague,
Lawrence Foster, Allen Augenbaugh, and Howard Nash.
- On June 23, Harris and Hockett were told by their foreman to go to Plant
Manager Flexon's office. Glenn Parker, a carpenter in the maintenance depart-
ment, was also present. Flexon asked the employees how they could benefit by
an outside union and stated that if the employees became affiliated with an
outside union that he would contract the work out and cut the force down.7s
Flexon then asked the employees if they would accept GBBA as their bargaining
agent, and said that it could give them anything that any other union could, that
GBBA was a good organization, that the respondent had no trouble with them
about grievances, that the committee of GBBA hardly ever came in and that
when it did its members would sit down and talk for half an hour about ball
games and fishing and then leave." Hockett stated that the employees had
first signed up with the IAM and thereafter with UMWA, and asked Flexon
if he now expected them to become members of GBBA. As the meeting concluded,
Flexon declared that Hockett was confused and nervous and had a difficult time
sleeping at night, that he thought he got all the "hot" jobs in the plant,10 that
Hockett and Harris must have stumbled over something in the union hall, and
that Parker wanted an electric hammer to drive his nails 20
my acceptance of the International Association of Machinists as it bargaining
agency.
Signed----------------------------------
Employee of Owens-Illinois Glass Company
ALTON, ILLINOIS,
June 18, 19.3.
I accept the Onlzed Maintenance Organization as a collective bargaining agency
with full permission to bargain for me for the period from June 19, 1943 to January
1st, 1944.
Signed----------------------------------
17 The foregoing findings as to the meeting of June 19 are based upon the undenled
testimony of Hockett and Harris.
18 See footnote 13, supra.
181 As noted hereafter, for approximately the past 10 years GBBA has represented the
machine operators in Plant No 7.
ID The "hot" jobs so referred to by Flexon are jobs done by the welders in or near the
furnaces.
20 The foregoing findings are based on the mutually corroborative testimony of Harris
and Hockett. Flexon did not deny any of the foregoing testimony of Harris and Hockett
and admitted that on the occasion in question he asked the employees what their opinion
was of GBBA and said that the respondent had never had any trouble with that organi-
zation.
OWENS-ILLINOIS GLASS COMPANY 1029
In the latter part of July, some of the employees who had been active on behalf
of the IAM, were informed by the representative of that organization that it
would have to relinquish jurisdiction over the respondent's employees because i
claim of jurisdictional-rights had been asserted by GBBA. Shortly thereafter,
Hockett secured application cards from UMWA, some of which he gave to Harris,
and the two employees then became active in soliciting memberships and distribut-
ing organizational leaflets in the maintenance department on behalf of that
organization 21
On September 3, UMWA mailed a letter to each of the employees of the
respondent, which contained the names of the employees who composed its
organizing committee . A leaflet containing similar information was distributed
by UMWA on September 14. These were the first announcements by UMWA of
the employees who were assisting it in its organizational efforts. Hockett was
named as a member of the UMWA organizing committee in the letter of September
3 and the leaflet of September 14. As noted hereafter, on September 14 or 15,
Hockett was transferred to the salvage department.
The day after Hockett was transferred to the salvage department, employees
Byron Harris, Merle Rector, and Ernest Sons met with Plant Manager Flexon
for the purpose of protesting the transfer. At that time, Flexon stated to these
employees that they ought to keep away from the man across the street,22 that
Flexon would contract out the maintenance work and cut the force down as was
already being done in other plants of the respondent, that the only way to break
up the union was to get in thugs and have a few bloody noses, that Flexon had
communicated with Campbell and Johnson, GBBA representatives, and that
GBBA was going to establish an office in Alton but that its representatives felt
that it would be no use to attempt to organize for 60 or 90 days because the
employees were in an "uproar." 23
On September 16, Plant Manager Flexon called a meeting of all the employees
in the maintenance department for the purpose of telling them that the respondent
was planning to institute a program to equalize wage rates . Thereafter , separate
meetings of each of the craft groups of employees comprising the maintenance
department were held for the same purpose. At the meeting on September 16,
Flexon told the employees that money would do anything, and that the respondent
21 UMWA had begun to organize the employees at Plant No 7 as early as January 1943,
but its , organizational drive did not reach its peak until September.
22 At this time , UMWA was the only union with headquarters located on the street
opposite the respondent 's plant, which was actively engaged in an attempt to organize the
employees. '
23 The foregoing findings are based upon the . testimony of Harris and Hockett. Flexon
admitted that he had referred to contracting out the maintenance work , had made a
statement concerning thugs , and had said that GBBA intended to establish an office in
Alton. Flexon explained that each of these statements , except the last one, was used
in connection with illustrations he had given the employees relative to the inherent dangers
of jurisdictional disputes between unions , and that his statement with reference to GBBA
headquarters was brought about by the fact that Johnson had told him about the time of
the JAM strike that GBBA planned to set up an office in Alton and that Flexon merely
repeated what he had heard. He denied that he had threatened to reduce the mainte•
ranee force or that he had stated that he would import thugs to the plant . Flexon's
ready recollection when questioned by counsel for the respondent or for GBBA , his absence
of recollection when questioned by counsel for the Board , and the vagueness and generality
which characterized much of his testimony have not served to impress the undersigned
that Flexon was a credible witness . In view of these facts and the further fact that other
undenied evidence exists in the record and is otherwise shown herein as to Flexon's
antagonism to UMWA, the undersigned does not credit the foregoing denials made by
him, and finds that lie made the statements attributed to him by Harris and Hockett, as
above set forth.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had agreed with the representative of the IAM to give that union a contract
covering the employees in Plant No. 97,24 if the IAM would leave Plant No. 7-
alone.26
On the evening of September 16, the respondent's employees who were members-
of UMWA elected temporary officers and stewards, among them being Duvall who
was elected to the position of recording secretary.
On September 17, the representative of UMWA called Flexon, told him that
UMWA claimed to represent a majority of the employees in Plant No. 7, and
requested a conference. Flexon declined to discuss the matter until the Board_
had established a bargaining agency zs
On September 20, according to the uncontradicted testimony of Duvall, Plant
Manager Flexon stated to Duvall, "I thought you told me that you were through
with the Union?" and asked Duvall whether he had been to the meeting of
UMWA."
Lawrence Mugge, who worked in the utility gang in the maintenance depart-
ment, testified that on the same day Flexon asked him what the idea was of the-
UMWA button which Mugge was wearing and told him that things would be
straightened out at the wage equalization meetings which were being held for
each of the crafts in the department. Flexon testified that he did not recall
what he had said to Mugge on this occasion.
On September 20, Plant Manager Flexon conducted a meeting of the employees
of the package supply department at which he asked if any of the employees had
joined one of the unions, and stated that he had the jobs and UMWA did not, that
he could do as much for them as UMWA could do, and that he was the one to
play ball with and not the man across the street.28 Flexon also stated that he
had heard that Julius Klopfer, one .of the employees present, had been elected
president of the UMWA local 29 and that he was probably into it pretty deeply
or they would not have elected him He then asked what the employees expected
to get from a union in the plant, and stated that UMWA had tried to organize
the employees at two companies nearby, but that it was not wanted at those plants
and asked why the employees at the respondent's plant should want that union.
Flexon also said that UMWA had obtained a contract at another company nearby
where all the employees were negroes and that the respondent's employees would
24 See footnote 12, supra.
26 The foregoing findings are based on the testimony of Duval and Hockett, which was
not contradicted by Flexon who testified that he dui not recall whether he had made the
statement with reference to an JAM contract or that money would buy anything.
26 On the same day, UMWA filed with the Regional Office of the Board a petition for
certification in Case No . 14-R-783 , for a unit comprising the maintenance, batch and
furnace, and package supply departments in Plant No. 7. On October 4, UMWA filed an
amended petition , seeking certification in a unit comprising only the maintenance depart-
ment , and on October 13, filed a second amended petition , alleging that all the employees
at Plant No. 7 constituted an appropriate unit. On October 21, GBBA filed its petition
in Case No. 14-R-806 requesting certification in a unit covering all hourly paid employees
in Plant No 7
21 As noted hereafter, Duvall had been discharged by the respondent on June 3 and
reinstated on July 28. He testified that Flexon's statement with respect to being
"through" with the union referred to the time he was reinstated when lie told Flexon
that lie was going back to work and forget about it, although at that time he did not tell
Flexon what it was he was going to forget about.
28 See footnote 22, supra
2e Klopfer had been elected president on September 16. The UMWA leaflet announcing
the names of the officers and ste w ards who had been elected on September 16 was not
distributed until September 21.
OWENS-ILLINOIS GLASS COMPANY 1031
therefore not want to work there During the course of his remarks , Flexon
stated that if conditions did not change, he would retire to his farm and forget
the whole thing. At the conclusion of the meeting, Flexon told the employees
he hoped that they would all go back to their jobs and forget about the union,
apologized if he had made any statements which might not have "sounded right,"
and stated that he hoped that they were all good friends "0
On September 21, UMWA distributed among the employees of the respondent a
leaflet which, among other things, listed the names of the employees who had
been elected temporary officers and stewards of that organization on September
16. The name of Thomas Sorbie as a steward in the shipping department was
listed in this UMWA leaflet. Sorbie had previously requested the respondent to
transfer him to the job of machine operator At the time of the hearing, and for
approximately 10 years prior thereto, GBBA had represented the machine opera-
tors in the respondent's plants and had entered into annual contracts with the
respondent, covering the wages, hours, and working conditions of such employees."
Fearful that the appearance of his name as a UMWA steward on the leaflet of
September 21 would prejudice his opportunity of becoming a machine operator
and that the committee of GBBA operators in the plant would refuse to let
him work, Sorbie told Ed Gehrke, superintendent of the packing department,
about the matter, stated that he was not a member of UMWA, and asked Gehrke
for his advice Gehrke took Sorbie to the office of Frank Leese, superintendent
in the forming department, and after some discussion between the three men,
Gehrke told Sorbie that the only way he could clear himself would be to put
an announcement in the Alton newspaper, stating that he was not a member
of UMWA After discussing the matter with several other persons, Sorbie
decided not to follow Gehrke's suggestion. He became a machine- operator, on
January 15, 1944.92
On September 30, representatives of the respondent, GBBA, UMWA, and the
Board met at the Regional Office of the Board for the purpose of discussing the
petition for certification which had been filed by UMWA on September 17. There-
a°The foregoing findings are based on the testimony of employees Wilbert Brown and
Sandy Sivia Flexon testified that he did not recall having said that the employees should
play ball with him and not with the man across the street, and did not believe that he had
mentioned UMWA. He admitted, however, that he had said, "Klopfer, you are in this up
to your neck, if anything is wrong, you tell us what is wrong", and further admitted that
he might have made the statement that lie certainly tried to do as much for the employees
as any union would do In view of these admissions and the numerous other anti-union
'statements made by Flexon , as otherwise shown herein , the undersigned finds that Flexon
made the statements above set forth, in accordance with the testimony of Brown and Sivia.
31 The current agreement contains the following clauses :
ARTICLE 1-UNION RECOGNITION
The Owens -Illinois Glass Company hereby agrees to employ members of the Glass
Bottle Blowers Association to operate the bottle -making, tumbler and burn-off
machines , -
ARTICLE 2-HIRING
When mien are needed to operate the bottle-making, tumbler and burn-off machines,
members of the Glass Bottle Blowers Association shall be employed, providing they
are qualified and competent. If satisfactory union operators are not available, the
employer shall be permitted to draw labor from any source. Labor selected in this
manner shall join the Union when competent to operate a machine
32 The foregoing findings are based upon the mutually corroborative admissions of Sorbie,
who was called as a witness by GBBA , and Gehrke , who testified on behalf of the respondent.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after, GBBA engaged in an intensive campaign to organize the employees"
in Plant No. 7 34
On or about September 30, Plant Manager Flexon came up to employee Law-
rence Mugge while the latter was at work, looked at the UMWA button which
Mugge was wearing, and said : "Who keeps that shined up for you? Do the
boys at the hall do that ?" As noted hereafter , on November 23, Flexon again
spoke to Mugge and at that time indicated that it was doubtful if UMWA would
win the election since, according to Flexon, GBBA had by , far a greater number
of designations than did UMWA.
According to the undenied testimony of employee Mable Tindle , Clyde Goss,
her crew leader , told her, about the time GBBA became active in the plant, that
the respondent had asked him to organize for GBBA The undenied testimony
in the record shows that , in addition to Goss, Gordon Walker, Frank Sutton,
Otis Hamby, Allen Augenbaugh , and Paul Carver , each of whom was a crew
leader,35 and Jack Ribble , Glenn Schaeffer , and Victor Davis, each of whom
was a tank foreman 3e engaged in solicitation on behalf of GBBA.
$3 As previously noted, for approximately 10 years GBBA has had contractual relations
with the respondent and has represented the machine operators in Plant No 7. Attempts
by GBBA to organize the rest of the employees in the plant were made in 1933 and again
in 1937. The record makes no showing of any attempt on the part of GBBA to organize
employees in the plant other than machine operators after 1937.
34 Although GBBA sought to show that its organizational campaign began prior to
September 30, and there is some evidence that sporadic efforts to organize respondent's
employees were made before that date, the record clearly shows that GBBA began an
intensified drive among the respondent 's employees only after the -(late in question. In
addition to the testimony of six employees that GBBA was not active in the plant prior
to September 30, Clyde Goss , a crew leader who testified on- behalf of GBBA , admitted
on cross-examination by counsel for the Board that as far as he knew he was among the
first of the employees to join GBBA and that the first meeting of that union was held on
October 12 . Further, Newton Black, a representative of GBBA , admitted , and the record
in the representation proceeding shows, that of the 502 cards signed by the respondent's
employees , which were submitted to the Regional Office in support of GBBA ' s claim of
representation, 14 cards bore no dates , 1 card was dated in February , 1 in March, 17 in
September , and 469 in October 1943.
33 See footnote 14, supra.
36 The respondent and GBBA contend that tank foremen are not supervisory employees.
Tank foremen were excluded from the unit in the representation proceedings upon agree-
ment of the parties. Plant Manager Flexon testified that a tank foreman is the leader
of a group of men who work on the glass tank , that there are from 2 to 8 machines to
each tank and from 1 to 4 men at each machine , that the duties of the tank foreman are
to see that the work is correlated and that the people are working , to help out wherever
needed and to work with the machine operators if the latter have any trouble , that the
word of the tank foreman is final with respect to the quality of the glass being produced,
that tank foremen are paid $ 1 20 per hour , the machine operators $ 1 10, while the sweepers
and take-out boys who sometimes work at the tanks, receive 750" and 700 , respectively,
and the crew leaders at the glass lehrs are paid 851/22 to 900 per hour , and that in addition
to their hourly wages machine operators and and tank foremen each receive a bonus
which in the case of the former is based on the production of his machine and in the case
of the latter on the aggregate number of machines he has, and that tank foremen have no
power to hire , discharge , or discipline employees Even shift foremen, however, who are
admittedly supervisory employees , have only a limited power of discipline which exists
only in exceptional circumstances , and otherwise are required to send the employee in-
solved to the department head. Moreover , Flexon testified that tank foremen are con-
sidered to be the same as crew leaders who, as noted above , act in a supervisory capacity
Throughout his testimony , Flexon denied that crew leaders are supervisory employees,
and at tunes attempted to classify as crew leaders employees whose activities night be
imputable to the respondent by reason of their supervisory authority . Thus, in one
instance , when the activities of William Elsner came into question, Flexon testified that
Elsner was a crew leader ; yet a document introduced in evidence by the Board and based
on information furnished by the respondent, which lists the principal supervisory em-
ployees in the plant , shows Elsner as foreman . William Fessler , a furnace tender and
pot man, on cross -examination by the respondent , testified that tank foremen are super-
OWENS-ILLINOIS GLASS COMPANY 1033,
On or about October 21, according to the testimony of Jim De Mundrum, an
employee who served as the first UMWA steward'in the wood box department,
William Reed, De Mundrum's foreman, referred to the UMWA button which
De Mundrum was wearing as a "dog tag," stated that he tagged his dog too,
but that his dog tag had a number on it, further stated that De Mundrum would
not make anything out of the union, and asked De Mundrum why he belonged
to a miner's union when he was a carpenter 37 As noted below, approximately
2 days after this conversation occurred, De Mundrum was transferred from his
job as assistant saw filer to a job on the planer.
Three or four days later, Foreman William Lively approached employee
Robert Karrick while the latter was at work and said, "Bob, why don't you
give me that button and get on the right side?" The only button Karrick
was wearing bore the insignia of UMWA. Lively further stated, "You know
we have put you young fellows on the saw line and older fellows should be on
there," and then asked, "What are you doing trying to break down what it
took us older men 10 to 20 years to build up?" '
On November 2, a hearing was held in the representation proceedings, and
on December 4 the Board issued its Decision," directing that an election be
held to determine whether the employees desired UMWA, GBBA, or neither
organization as their bargaining agent. As noted hereafter, John Hamburg
and Bill Pohlman were transferred on November 19 and Mary Faith on December
14 from the day shift to shift work in the mold repair department a day or two
after each of those employees first wore UMWA steward's buttons in the plant.
On or about November 23, Plant Manager Flexon approached employee Law-
rence Mugge while the latter was at work and asked him what some of the
boys in the plant were going to do. When Mugge inquired as to what Flexon
meant, Flexon replied, "What are you boys going to do if District 50 [UMWA]
does not get in?" Flexon further stated, "You know you people cannot have
more than 400 votes , for the GBBA has over a thousand signers already.s 90
visory employees and stated • "To my knowledge , if I go there [ the tanks ] to work, they
[tank foremen ] tell me what they want clone . They superintend the work on that tank "
On the basis of the foregoing testimony and in consideration of the entire record, the
undersigned finds that the duties and responsibilities of tank foremen are supervisory in
character. The respondent and GBBA contend that crew leaders and tank foremen are
accepted into membership and have been bargained for by GBBA and that therefore they
cannot be regarded as supervisory employees. The fact that a labor organization accepts
as members and bargains for a particular classification of employee neither proves nor dis-
proves the existence of supervisory authority. The parties in this case agreed at the
hearing during the representation proceeding that tank foremen were to be excluded from
the unit comprising the production and maintenance employees , and the Board in its
Decision based upon that proceeding found that the respondent has for several years
entered into contiacts with the American Flint Glass Workers Union of North America,
which have covered tank foremen and mold makers. The contention advanced by GBBA
in its brief to the effect that even if tank foremen were to be considered as supervisory
employees "the custom and tradition in the glass industry would except them from the
general Board rule excluding them from participation" is not supported by the record.
34 Reed admitted that he had referred to the UMWA button worn by De 1llundruin as
a "dog tag," and testified that lie pinned a milk bottle cap on his clothing in simulation
of a union button and that lie regarded both these incidents as jokes. He did not deny
the other statements attributed to hint by De Mundrum, as found above
38 Lively denied that he had made the foregoing statements to Karrick. In view of the
fact that De l\lundrum testified that at the time he was transterred to another job on
October 23, as noted hereafter, lie was warned by Lively that lie would be discharged if
he weie caught talking about the union, and in view of the fact that both Karrick and
De Mundrum impressed the undersigned as credible witnesses, the undersigned does not
credit the foregoing denial of Lively.
39 53 N. L. R. B 1114.
411 leXon testified that lie had been told by another employee that he was doing all
Mugge 's work because the latter was spending his time in signing up employees for UMWA
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 6 or 7, Allen Augenbaugh, a crew leader in the maintenance
department, told employee Gust Franklin who had picked up a GBBA handbill
in-the plant that Franklin had better vote for GBBA if he knew what was
best for him. On or about December D, Augenbaugh told employee Russell Baird
that he had better take off the UMWA button he was wearing or he would
not have a job in the plant. On or about the following day, Augenbaugh made
a similar statement to Franklin. Augenbaugh admitted that he had made sub-
stantially such a statement to Baird and did not deny the statements attributed
to him by Franklin.
-On December 21,41 two days before the election, GBBA distributed handbills
announcing that the respondent and GBBA had agreed upon a vacation plan
which increased the vacation time with pay for all the employees and that
this plan had received the approval of the National War Labor Board.92 A news
article stating that the respondent had made a similar announcement, appeared
all over the plant and that Flexon spoke to him for that reason in an effort "to tip him off
that if he didn't look out he would get himself in bad with everybody, by just taking off all
kinds of time, by going all over the plant and getting into trouble " Flexon did not
specifically deny that lie had made the statements attributed to him by Mugge. The
undersigned finds that such statements were made in accordance with Mugge's testimony
41 On the preceding day, letters were distributed by the shift foremen to the employees
In the packing department and the wood box and corrugated department, signed in each
instance by the superintendent of the department. urging the employees to vote. Some
of the language employed in these letters is subject to conflicting interpretations when
viewed in the light of what may he regarded as permissible statements made by an em-
ployer to his employees immediately preceding an election In view of the numerous
unfair labor practices engaged in by the respondent in this case, as otherwise shown herein,
the undersigned regards it as unnecessary to resolve this conflict and accordingly makes no
finding in this respect. For similar reasons the undersigned considers it unnecessary to
determine and accordingly makes no finding with respect to the contention advanced by
counsel for the Board that the meetings held by the respondent for the purpose of
equalizing wage rates in the maintenance department on September 16 and thereafter were
a device utilized to forestall the efforts of the employees to organize and therefore consti-
tuted a violation of the Act.
42 The GBBA handbill was worded as follows
IMPORTANT THAT You READ
That the Glass Bottle Blowers Association (A. F of L.) has secured a 96 hour
vacation with pay through their negotiations with the Owens- Illinois Glass Co.
for YOU.
THE WAR LABOR BOARD Has Approved This Increased Vacation
Watch your local newspaper for verification
The Glass Bottle Blowers Union is able to secure increases in wages and vacations
without sacrificing their lunch and rest periods and also without having to work an
hour more on the day.
We have already secured for you through the Operators negotiations, Local No. 95,
what District 50 promises you.
The Glass Bottle Blowers Association does not make wild statements or false
promises.
Meetings Monday, Tuesday, Wednesday nites 7. 30 P. Al. at our headquarters,
1726 East Broadway (Old Shell Station).
(Signed ) NEWTON BLACK,
Spec. Rep. U B B. A.
Pres. Local No. 95.
GISH JOHNSON,
Executive Board Member G. B. B. A.
Z. C. WRIGHT,
Executive Board Member G. B. B. A.
OWENS-ILLINOIS GLASS COMPANY 1035
in the local newspaper on the same day 93 On the following day, printed copies
of the new vacation plan were distributed in the pay envelopes of each of the
.employees.
, The record shows that the respondent has each year for the past 7 or 8 years
notified its employees at each of its 10 plants'" that they would be entitled
to vacations with pay upon meeting certain requirements as to length of service,
and that from year to year the respondent has attempted to increase the benefits
so granted . On October 25, 1943, the respondent filed an application with the
National War Labor Board for approval of a vacation plan for the year 1944
which contained certain increased benefits over those granted in the plan for
1943. GBBA and the American Flint Glass Workers Union of North America,
herein called AFGW, joined in this application.' On December 8, 1943, the Na-
tional War Labor Board approved the application, and on December 15, at a meet-
ing of plant managers of the respondent held at Toledo, Ohio, arrangements were
made as to the date and manner of announcing the vacation plan at each of the
plants. Printed copies of the 1944 vacation plan, dated December 22, 1944, were
received at the Alton plant from the Toledo office a few days before that date and
were distributed on that date in the pay envelopes of each of the employees in
Plant No. 7. -
48 The following comprises the text of the newspaper article :.
NEW VACATION PLAN AT OWENS
PROGRAM AT GLASS PLANT FOR 1944
Announcement of a vacation plan for 1944 was made today by Owens -Illinois Glass
Co A booklet , describing the. broadened program, will be enclosed with pay checks
to be distributed Wednesday
All employees who have worked 1200 hours or more this year will be eligible for
vacations with pay. Those with two years ' service or less will receive six days of
vacation with 48 hours ' pay at regular hour rates . Those with the company more
than two but less than five years will receive nine Jays' vacation with 72 hours'
pay ; those with five years or more of service will receive 12 days' vacation with 96
hours' pay
If an employee was unable to work during part of 1943 because of an accident
which occurred at work, or because of sickness as recognized in the group -insurance
plan, such time will be marked as "hours worked" at the rate of six or eight hours
a day, whatever the usual shift of the employe calls for.
The vacation period will be from Jan 1 to Dec 31 , 1944, and vacation money may
be secured before the vacation begins , it was announced.
The increased vacation schedule was approved by the War Labor Board , to which
it was referred after it had been requested by the Glass Bottle Blowers Association,
and was the subject of annual wage and special 'conference of company and union
representatives , at Columbus , Ohio, this fall.
44 An eleventh plant of the respondent was placed in operation some time after December
23, 1943.
46 The application contained the following statement which was signed by the president
of each union:
UNION ENDORSEMENT
The Glass Bottle Blowers Association of the United States and Canada and the
American Flint Glass Workers Union of North America , who represent practically
100% of the applicant 's union employees , respectfully join in the foregoing applica-
tion to the National War Labor Board submitted by the Owens -Illinois Glass Company
and its subsidiary , Libbey Glass Company, and respectfully urge the granting of the
request contained in said application.
The statement that GBBA and AFGW "represent practically 100% of the applicant's union
employees" is ambiguous since those unions represented only the machine operators and
mold makers , respectively , who together constitued only a small portion of the entire
number of employees in the plant.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not support the contention, jointly advanced by the respondent
and GBBA, that the 1944 vacation plan was arrived at as the result of collective
bargaining negotiations between them, which occurred on August 10 and Septem-
ber 28, 1943. These negotiations were conducted on behalf of the machine opera-
tors in each of the respondent's plants whom GBBA has represented and for
whom it has annually executed collective bargaining agreements with the respond-
ant for approximately 10 years. The vacation plan is not included as one of the
terms of the 1944 contract between the respondent and GBBA; 96 and although
the plan covers all employees of the respondent, the contract covers only the
machine operators, who constitute only a small portion of the total personnel.
Nor was any evidence adduced by the respondent or GBBA to show that pro-
visions for similar vacation plans had been included in any prior contracts between
the parties during the 7 or 8 years the respondent has offered such plans to its
employees Moreover, although AFGW also joined in the application for approval
of the 1944 vacation plan,'Abner Martin, personnel director for the Glass Container
Division of the respondent, 'testified that the annual conference with that union,
which occurred in August 1943 for the purpose of negotiating a new agreement
to cover certain skilled employees in the mold repair department of the respond-
ent's plants, was fruitless and that the parties had not yet arrived at an agree-
ment at the time of the hearing in the present proceedings." , Martin also testified
that the 1943 vacation plan had been discussed at the annual bargaining confer-
ence between the respondent and GBBA in 1942, that the respondent applied to
the National War Labor Board for approval of that plan because certain increases
in vacation allotments were made,, and that GBBA did not join in the request for
approval at that time because the Wage Stabilization Act did not go into effect
until October 15, 1942,48 and there was no time to secure GBBA's endorsement
since the respondent wanted to announce the plan before Christmas. As previ-
ously noted, the application for approval of the 1944 plan, which contained the
endorsement of GBBA, was-dated October 25, 1943.
Plant Manager Flexon testified that he received the printed copies of the
vacation plan which were included with the employees' pay checks on about
December 20; that on December 21, he received a telephone call from the local
newspaper which had heard about the plan and was asking for an explanation ;
that Flexon told the representative of the newspaper that an election was going
to be held and that he would not give the newspaper a story but that he would
send them the information and that they could do whatever they wished with it;
and that he then sent the newspaper a copy of the GBBA handbill, a copy of the
printed vacation plan, a special leaflet containing information about the plan, and
a copy of the minutes printed by GBBA of the bargaining conferences of August
10 and September 28.
46 The 1944 contract, which is printed in the form of a pamphlet, contains on the back
cover a printed sticker worded as follows
VACATION BENEFITS APPROVED BY WAR LABOR BOARD
Service requirements, 1200 hours
( a) Less than two full years' service, 6 days ( 48 hours).
(b) More than two full years' service , but less than five full years ' service, 9 days
(72 hours).
(c) More than five full years' service , 12 clays (96 hours).
47 Although Martin further testified that AFGW and the respondent continued to operate
under their 1943 contract , that document contains no provision for a vacation plan. -
48 The undersigned takes official notice of the fact that the enactment so referred to
constituted an amendment to the Emergency Price Control Act of 1942, that this amend-
ment was passed by Congress on October 2, 1942 ( 56 Stat 764 ), and that an Executive
Order supplementing the amendment and requiring approval of proposed wage increases
was issued by the President on October 3, 1942 ( Executive Order No. 9250).
k
OWENS-ILLINOIS GLASS COMPANY ' 1037
The respondent contends that announcement of the vacation plan each year
has customarily been made before Christmas, that pay days at Plant No. 7 are
on the 7th and the 22nd days of each month, arid that since approval of the plan
was secured after the 7th that the only time the announcement could be made
was on the 22nd. Although Flexon testified that December 7 and 22 have been
the standard pay days every year at Plant No. 7, and that announcement of the
vacation plans in prior years had been made just before Christmas, "as near as
we could to coincide with the payday," Walter Wood, personnel director at Plant
No. 7, testified that the 1942 vacation plan was announced to the employees on
December 5, 1941, the 1941 plan on December 19, 1940, and the 1940 plan on
December 21, 1939. Moreover, Martin testified that while some of the respondent's
plants have pay days on the 5th and 20th of each month, the employees in the
great majority of the plants are paid on the 7th and the 22nd, and further testified
that although the various plant managers were instructed to announce the 1944
vacation plan on or about December 22, the plan was actually announced at
the respondent's plants on December 21, 22, 23, and 30, and January 1, and that
in some cases copies of the plan were not distributed until some time thereafter,
in one instance the date being as late as January 7, 1944.
The discharge of Harry Duvall and the transfer of other adherents of UMWA
Harry Duvall was first employed at Plant No. 7 on April 1, 1931, and first
began to work in the maintenance department on March 1, 1935. Duvall was
employed as a welder's helper.49
As noted above, in the Fall of 1942, Duvall secured membership application
cards from the American Federation of Labor which he, together with Hockett,
distributed among the other employees in the maintenance department. Duvall
and Hockett continued their efforts on behalf of the IAM when that organization
began to organize the employees in the maintenance department in about April
1943.
A short time after the IAM sent its letter of May 19 to Plant Manager Flexon,
notifying him that it represented a majority of the employees in the maintenance
department, Duvall and Harley Lievers, a welder, were taken to Flexon's office
by Tom Acker, superintendent of the maintenance department, and Acker asked
Duvall and Lievers what they thought about joining GBBA. It will be recalled
that when they arrived at Flexon's office the employees were asked by him why
they wanted a union and were told that the respondent could build up enough
evidence to discharge them whenever it saw fit and that Duvall would be the
"goat."
Shortly before May 23, Claude Gentry, foreman of the steelworkers and welders
in the maintenance department, approached each employee under his supervision
and asked him whether he wanted a union and whether he had signed a union
application card. Gentry admitted that he had learned as a result of the poll
so taken that Duvall was the oldest employee in the department who was a mem-
ber of the IAM. Gentry prepared a written list of the answers given by each of
the employees and thereafter made a report to Plant Manager Flexon.
On May 23, flood waters of the Mississippi River entered the respondent's plant,
and a large quantity of fruit jars which had been stored in the plant were con-
taminated. The respondent announced that it would sell these jars to the em-
ployees at a nominal price.
On May 31, the Regional Office of the Board sent a letter to the respondent,
which the latter received in the due course of mail thereafter, informing the
49 At the time of the hearing, Duvall was employed as a welder.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent that the JAM had filed a petition for certification for a unit comprising
the maintenance department.
On June 1, Duvall and employee Paul Harold received permission from their-
crew leader, Lawrence Foster, to leave their work for the purpose of, taking a
number of fruit jars, which they wished to purchase, to the plant gate so that
they could take them home at the end of the days' work. The watchman, at
the gate, however, permitted other employees to take the jars, and on the fol-
lowing morning Duvall ordered a truck which came into the plant and secured
a load of jars, part of which Duvall wanted for himself and the rest of which
he had promised to get for other employees. The jars were loaded into the truck
by the truck driver and paid for by him with money furnished by Duvall.
Meanwhile, some of the employees complained to Plant Manager Flexon that
they had seen a truck loaded with jars while they were unable to obtain any
for themselves, and Flexon instructed Walter Wood, personnel director at the
plant, to investigate the matter. Shortly thereafter, Duvall was instructed by
Foreman Gentry to see Flexon and Wood, and when he did so, Duvall was told
by Flexon, "Between the flood and the damn Union it is about to drive me crazy.
I ought to fire all of the boys who started it." 50 Flexon told Wood to establish
a limit of 6 dozen jars for any employee and to straighten out the matter with
Duvall, and then left. Duvall suggested that if the matter was going to cause
trouble, he would unload the jars from the truck and let them be sold at the
gate, but Wood replied that it would be all right, that the jars were paid for,
and that Duvall should tell the truck driver to go on. -
On the following day, Duvall was sent by Foreman. Gentry to the office of
Tom Acker, superintendent of the maintenance department, where according to
the undenied testimony of Duvall, Acker stated that the respondent would give-
Duvall two weeks' wages and let him quit, that he was being let go because of
the fruit jars and also because he had been talking too much and too often
and was not working as he should have been 61 When Duvall refused to quit,
lie was discharged.
Flexon testified that he ordered the discharge of Duvall because he had lied
about the number of jars which were on the truck, about the number of jars one
employee had asked him to obtain for Win, about the fact that another employee.
had asked Duvall to secure jars for him, and about receiving permission from his
supervisor to leave his work and obtain the jars. According to Flexon, Duvall
had stated that he had 75 dozen jars on the truck whereas an investigation
showed that there were 96 or 98 dozen, that employees Foster and Senniger
had each asked him to get 20 dozen but that when Flexon checked with these,
employees, Foster told Flexon that he had only asked for 6- dozen and Sen-
niger told him that he did not remember asking Duvall for any jars,52 and that
while Duvall had stated that he had secured permission to leave his work in
order to get the jars, Foreman Gentry told Flexon that Duvall had not asked
o° Flexon denied that he had ever threatened to discharge any employee and also,
denied that he had threatened to discharge Duvall or Lievers because of any union
activity on their part He did not, however, specifically deny having made the above
statement attributed to him by Duvall The undersigned finds that Flexon made such
statement in accordance with Duvall's testimony
61 Although Acker was called as a witness by the respondent and testified as to Duvall's
seniority record, he did not deny that he had made the foregoing statements concerning
which Duvall had previously testified
22 Wood, who was called as a witness by the respondent and testified in other respects
about the incident in question, did not deny the testimony of Duvall that Wood asked
Senniger in Duvall's presence on June 2, whether he wanted any jars and that Senniger
told Wood that he would like to have 8 dozen for himself and a like number for his son,
and that Duvall told Wood that he would deliver the jars to Senniger the next morning.
OWENS-ILLINOIS GLASS COMPANY 1039
him for permission to leave his job. As to the number of jars purchased by Duvall,
Flexon admitted that no limitation, on the number of jars which any one em-
ployee could buy existed prior to this time, that Duvall had paid for all the
jars he received, and that he was permitted to take the full truckload out of the
plant; ' that he relied upon the statements of Foster and Senniger rather than
that 'of Duvall with respect to the number of jars Foster had requested and the
fact that Senniger had asked for any at all ; and that he fully inquired into the
matter of whether Duvall had secured permission to leave his work after Duvall
was discharged.
On June 10, the Regional Office of the Board sent a letter to the respondent,
which was received in the due course of mail thereafter, informing the respond-
ent that the IAM had filed a charge on behalf of Duvall, alleging that his em-
ployment had been discriminatorily terminated. On July 28, pursuant to a
settlement agreement entered into between the Board and the respondent, Duvall
was reinstated and paid for the time he had lost by reason of his discharge.'
On the morning of July 28, Duvall was sent to Plant Manager Flexon's office
where he met Flexor, Superintendent of Maintenance Acker, and Personnel
Director Wood. Flexon asked Duvall why he wanted to return to work for the
respondent and whether he wanted to "go back out there and crow about it?"
Flexon also told Duvall that he would give him a week's wages and get him a
good job at the Shell Oil Company or the Standard Oil Company. Duvall, how-
ever, stated that he wished to return to work for the respondent and was then
permitted to return to his job."
In view of the fact that Duvall's membership in and activities on behalf of the
IAM were well known to the respondent, that the respondent was manifestly
antagonistic to the 1AM, that 4 days before Duvall was discharged a communica-
tion from the Board had been sent to the respondent informing it that the IAM
had filed a petition for certification, that the facts assigned by the respondent
as its reason for discharging Duvall because of the fruit jar incident were either
investigated in a haphazard manner or came to its attention after Duvall had
already been dismissed, that Duvall was offered a week's wages if he would
quit and was discharged when he refused, and that the respondent, even after
it had offered to reinstate him, sought to induce him to secure a job elsewhere,
lead the undersigned to the conclusion that Duvall was not discharged for the
reasons assigned by the respondent but rather because he was a member of
and active on behalf of the IAM and the respondent wished to rid itself of him for
that reason
The undersigned accordingly finds that the respondent discharged Harry-
Duvall on June 3, 1943, because of the latter's membership in and activities on
behalf of the IAM, thereby discouraging membership in the IAM, and that by thus
discharging Duvall the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (1) of the Act.
Grant Hockett was first employed by the respondent in September 1928 as a
welder in the maintenance department. As related previously, Hockett and
51 Flexon admitted that Wood had settled the matter of the truckload of jars with
Duvall, and Wood did not deny Duvall's testimony to the effect that the latter had offered
to have the truck unloaded at the gate and leave the bars there to be sold but that Wood
had told him that would not be necessary
54 The undersigned denied a motion by the respondent to exclude all the testimony
of Duvall on the ground that such testimony was barred by reason of the settlement
agreement concerning Duvall's discharge . See Wallace Corporation, 47 N. L. R. B. 1169.
is Flexon admitted that the conversation occurred substantially in the manner related
by Duvall , as set forth above, and explained that his statements on that occasion were
made for the purpose of determining Duvall's attitude.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD_
Duvall were the first employees to solicit membership on behalf of the American
Federation of Labor and the IAM. As previously noted, Hockett's union activities
were well known to the respondent, and anti-union statements were made to
him and he was subjected to interrogation regarding his union activities by
Foreman Mantis and Gentry and Plant Manager Flexon After the IAM relin-
quished jurisdiction with respect to the employees in the respondent's plant,
Hockett and Duvall joined UMWA and became active on its behalf. On Septem-
ber 3, UMWA sent a letter to the respondent's employees, telling them of its
organizational activities and listing Hockett's name, among others, as a member
of the organizing committee of UMWA.
On September 13 and 14, Hockett was accompanied by Foreman Gentry to
Superintendent Acker's office. Acker stated that he had received a complaint
about Hockett who was talking too much to men in other departments. Hockett
asked to be confronted with the employee who had made such a complaint, but
Acker declined to do so.
On September 14, UMWA distributed the first of its handbills listing Hockett's
name as one of the members of its organizing committee. On that day or the
day following, Hockett was instructed to go to the office of the maintenance de-
partment where he found Flexon, Davis,' Acker and Gentry. Flexon told
Hockett that he had received a complaint against him, that he was being trans-
ferred to the salvage department, that the transfer was compulsory, that he was
to move his clothing from the maintenance department to the salvage department,
that he was to be restricted-to that area and if he left he would be subject to
dismissal, and that he was to punch in his time card in the personnel building
rather than at the time clock in the maintenance department. When Hockett
asked if he was restricted during the noon hour also, Flexon answered that he
was not, and stated, "I will tell you, you go clown there and get your feet on the
ground, and get in all the activity you can get in, and get on our side and
everything will be all right." The foreman of the salvage department informed
Hockett after he had reported to that department that his badge and clock
number would be changed. After he had been transferred, Hockett punched
his time card at the personnel building. At the same time that Hockett was
transferred, a notice was placed on the bulletin board in the maintenance de-
partment informing the employees in the latter department that they were no
longer to go to the salvage department if they needed any material but instead
were to bring a requikiitnon to the storeroom which would have the material
brought to them.
On the day after Hockett was transferred, employee Byron Harris, Merle
Rector, and Ernest Sons protested to Flexon concerning Hockett's transfer and
the order prohibiting employees from the maintenance department to go to
.the salvage department. It was at this meeting that Flexon told the committee of
employees that they ought to keep away from the representative of UMWA, to
whom Flexon referred as the man across the street, and further stated that he
would contract out the maintenance work and cut the force down, that the only
way to break up the union was to get in thugs and have a few bloody noses, that
he had communicated with the representatives of GBBA, and that GBBA was
going to establish an office in Alton and would begin to organize the employees
in 60 or 90 days. When Hockett, who had been called in, told Flexon that Elsner,
foreman of the salvage department, had stated that Hockett's clock and badge
number would be changed, Flexon answered that that was not correct. Flexon
then called Elsner and, after speaking to him, asked Hockett what he thought
he should have. Hockett stated that all restrictions should be removed, that
The record does not identify Davis.
OWENS-ILLINOIS GLASS COMPANY 1041
his clothing should be returned to the washroom with the rest of the maintenance
department employees, that he should be informed who his foreman was in
the salvage department, and that his helper should be returned. Flexon granted
each of these requests. Hockett's time card was returned to the maintenance
department, and the order prohibiting employees in the maintenance department
from going to the salvage department was rescinded. Hockett agreed, upon
Flexon's request, to complete his job of welding in the salvage department and
remained there until November when he returned to the maintenance department.
Flexon did not deny the- testimony of Harris and Hockett, on which the fore-
going findings with respect to the incident in question are based, except that
he testified that Hockett had not actually been transferred but had only been
assigned to a temporary job. Flexon's version of this incident was that a
great deal of loafing had been going on throughout the plant because of election-
eering among the employees and one of the worst centers of this loafing was in
the salvage department; that about this time the respondent decided to send
a welder to that department to reclaim some of the steel stored there and
Hockett was chosen for the job, and at the same time instructions were issued
prohibiting the employees from going to the salvage department for material;
that this was about the third time that a system of keeping employees out of
the department had been attempted, but that the system does not work because of
the difficulty of keeping a record of the miscellaneous' materials in the depart-
ment. Flexon also testified that when employees Harris, Rector, and Sons
protested this order:
I more or less apologized for making a decision 'and making an issue
of posting a bulletin which I admitted might be wrong, and it was taken
down ...
Flexon further testified as follows concerning the manner in which he settled the
protest on behalf of Hockett :
"I asked him [Hockett] if he wanted to continue on the job, I asked him
what helper he wanted and I gave him everything that you could give
him, in other words, it might have been an admission on my part the thing
I had done, I thought it over and it looked a little wrong, and I corrected it
immediately."
The undenied testimony of Hockett that he was told by Flexon that he bad
received a complaint against Hockett, that Hockett was to be transferred to
the salvage department, that the transfer was compulsory, that he was to be
restricted to that department and would be discharged if he left it, that he was
to keep his clothing there instead of the place he had formerly kept it, together
with the clothing of the other employees in'the maintenance department, that
he punch in his time card at the personnel building instead of his regular place
.in the maintenance department, that Hockett actually did punch his time card
thereafter at the personnel building, that he was informed by the foreman of the
salvage department that his badge and clock number would be changed, and
that the employees in the maintenance department were prohibited from going
to the salvage department for irlaterials lead the undersigned to the conclusion
that Flexon did transfer Hockett to the salvage department but revoked his order
when protest was made by employees Harris, Rector, and Sons. The undersigned
further finds that the foregoing restrictions were issued and that Hockett was
isolated from the rest of the employees in the maintenance department because of
his admittedly known activity on behalf of UMWA, and that by transferring
Hockett and by issuing such orders, the respondent discouraged membership in
628563-45-vol. 60-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UMWA, and interfered with, restrained and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1)
of the Act.
Byron Harris was employed by the respondent approximately 12 years until
he entered the United States Navy in March 1944. From December 7, 1943,
until he left the respondent's employment, he worked as a pipefitter in the main-
tenance department, and for about 8 years prior to that time had worked on and
off at that job.
Harris was listed as one of the members of the organizing committee of UMWA
in the letter which that organization sent to the respondent's employees on Sep-
tember 3 and also in the leaflet which was distributed on September 14. On
Sepember 16, Harris was one of the committee of three employees who protested
to Flexon concerning the transfer of Hockett to the salvage department.
On September 17, Harris was told by his crew leader, Allen Augenbaugh to
report to the maintenance department office where he saw Superintendent Acker
and Lewis Mohler, Harris' foreman, who told Harris that work was slack and
that he was to be made a helper for a while, that Harris was the youngest man
in seniority, that the employees had asked for seniority and that it was going
to result in his being reduced to helper. Harris was made a helper and his rate
of pay was reduced from $105 to 90¢ per hour.67 He worked as a helper until
December 7, when he was returned to his job as pipefitter. At this time, Foreman
Mohler told Harris that he did not want Harris running over the plant and talking
to everyone as he had done before.
At the time he was made a helper, Harris protested that he had more seniority
than Charlie Williamson, another employee in the department, but was told
that Williamson had been made a pipecoverer and therefore Harris had the least
seniority of the pipefitters. Williamson had been employed in the department
approximately 21/2 years and was made a pipecoverer in August or September.
Prior to that time he had acted as a helper for the plumber or the pipefitters.
The power system and pipefitting department in which these employees worked
was composed of 6 pipefitters, 6 pipefitter helpers, 1 pipecoverer and 1 helper.
On September 22, Harris complained to Flexon about being watched by his
foreman, Mohler, and Flexon replied that, "Maybe you had it coming." Flexon
admitted, that he spoke to Mohler about the matter, that Mohler told him that
Harris was spending most of his time electioneering for UMWA and that he was
possibly watching him more than anyone else, and that Flexon told Mohler:
"From now on use him like everybody else."
Flexon testified that the change with respect to Harris was necessitated by
a temporary reduction in force which in turn was caused by a lack of,adequate
helpers and a lack of materials.
Although Harris was demoted the day after he, together with two other em-
ployees, had protested the transfer of Hockett and within a few days after the
respondent had an opportunity to become fully aware of his activities on behalf
of UMWA, and although he was being more closely watched by his foreman than
other employees in the department because of those activities, the record shows
that he was the youngest pipefitter in point of,service. Although Harris testified
that all the employees in the department had done some pipe covering, nevertheless
Williamson was the only one regularly doing that work at the time. It does not
seem unreasonable that if a reduction of force were to be made that one of the
six, pipefitters should be selected rather than the only pipe coverer in the depart-
57 Shortly after this event, Harris protested and was given the expert helper's rate of
950 per hour.
OWENS-ILLINOIS GLASS COMPANY 1043
ment. Moreover, Harris admitted that he had previously been reduced from pipe-
fitter to helper on several occasions.
Although the matter is not free of doubt, the undersigned finds that Harris
was not demoted because of his union membership or activities.
Diable Tindle and Dorothy Sivia have been employed by the respondent as
selectors, or packers ' in the packing department for approximately 15 years and
5 years, respectively. Tindle was listed as a member of the organizing commit-
tee in the letter sent to the respondent's employees by UMWA on September 3
and in the handbill distributed on September 14. The handbill distributed by
UMWA on September 21 announced that Tindle and Sivia were two of the four
employees who were elected as stewards in the packing department on September
16. Sivia wore her steward's button for the first time while at work on
September 21.
On September 21 and 23, Tindle and Sivia, respectively, were transferred from
packing small containers to jobs which required that they pack gallon ware. Prior
to this time, each of these employees had worked on gallons but had requested and
had been transferred to smaller ware. The machine to which Tindle was trans-
ferred ran gallons for 3 or 4 weeks and thereafter ran smaller ware and Sivia
was working on smaller ware at the time of the hearing.
The record shows that employees in the department were frequently transferred
to and from machines packing various sized ware. Although both Tindle and
Sivia testified that older employees generally packed smaller ware, the record
fails to show which employees were retained to pack such ware when Tindle and
Sivia were transferred.
The undersigned finds that the evidence fails to show that Tindle and Sivia
were transferred from packing small containers to packing gallon ware because
of their membership in or activities on behalf of UMWA.
Jim De Mundrum was employed by the respondent some time prior to 1943,"
and during that year worked in the wood box division. De Mundrum was the
first UMWA steward in the wood box division and the first employee in that
division to wear a UMWA button. On October 21, William Reed, lumber fore-
,man in the wood box division referred to the UMWA button which De Mundrum
was wearing as a "dog tag," said that he tagged his dog too, but that his dog
tag had a number on it, declared that De Mundrum would not make anything out
i,f the union, and asked De Mundrum why he belonged to a miner's union when he
was a carpenter. At this time De Mundrum was working as an assistant saw
filer.
On October 23, William Lively,-foreman of the saw-line in the wood box divi-
sion, told De Mundrum that he was transferred to the planer as a take-off boy, and
when De Mundrum later in the morning asked Lively why he had been transferred,
Lively stated that those were his orders, that there was nothing he could do about
it, and that he did not want to catch De Mundrum talking about the union to any
one because he had orders to discharge him if he did 80
The job to which De Mundrum was transferred was heavier than the one he
had previously performed and required lifting lumber off the planer and placing
it in piles. The lumber which he was required to lift was from 6 to 18 feet long,
from 1 to 2 inches thick and from 7 to 24 inches wide. At this time, De Mundrum
was not well and consulted a doctor who, sometime later, advised him to undergo
Q® Selectors or packers are employees who pack the finished ware in containers.
59 The record does not show when De Mundrum first began to work for the respondent.
00 Lively denied that he had made the foregoing statements to De Mundrum. The
undersigned does not credit his denial. _
1044 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
an operation for the removal of his appendix De Mundrum told Foreman Lively
that the work on the planer was too heavy for him to perform and about 3 weeks
after he had been transferred he was given a job sorting nails. This job paid 10¢
per hour less than the wage De Mundrum had previously received and sometime
thereafter his wages were reduced by that amount.
Foreman Lively at first testified that De Mundrum was transferred because of a
shortage of help and an insufficient amount of work for the saw filers. Thereafter
he testified that an older employee on the planer requested and was transferred to
the saw line since he had done that work before, that De Mundrum was trans-
ferred to the planer, that both this employee and De Mundrum had had approxi-
mately the same length of experience on the saw line, and that there were
employees working on the saw line at the time of the transfer who had less
seniority than De Mundrum. He admitted that De Mundrum had requested that
he be transferred to the saw line where he had previously worked 81
In view of the fact that Lively failed to explain how a shortage of help was
alleviated by the transfer of one employee from the planer to the saw line and
,by another from the saw line to the planer, and in view of the further fact that
the transfer of De Mundrum was purportedly induced by the request of an older
employee to be transferred to the saw line while other employees with less
seniority than De Mundrum were retained on the saw line, even after he had asked
.to be placed on that job because work on the planer was too difficult for him, the
rundersigned is not convinced by Lively's explanation and finds that De Mundrum
was transferred, not for the reasons advanced by the respondent, but because the
respondent knew of his membership in and activities on behalf of UMWA, as
-shown by Foreman Reed's anti-union remarks to De Mundrum on October 21
and Foreman Lively's warning on October 23 that he would be discharged if he
were caught talking about the union
The undersigned finds that Jim De Mundruni was transferred by the r"spondent
from the job of saw filer to take-off boy on the planer on October 23. 1114" be ause
.of De Mundrum's membership in and activities on behalf of UMWA, and that by
so transferring De Mundrum the respondent discouraged membership in UMWA
.and interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of the Act.
John Hamberg, John Pohlnnan and Mary Faith were employed in and prior to
November 1943, as polishers on the day shift in the mold repair department.
Bamberg, Pohlman, and Faith were selected as UMWA stewards for that depart-
ment. Faith gave Hamberg and Pohlman UMWA steward's buttons which they
wore in the plant for the first time on November 17. On the same day, according
to the testimony of Faith, Clarence Chew, superintendent of the mold repair
,department, asked Faith if she had a union button and stated "The boys are
-wearing one ; ' Faith answered that she had a 'button but that it was in her
pocket ; Chew then said, "Those boys don't know what they are getting into," and
-when Faith asked what he meant, Chew replied, "That Union." Employee Pauline
Wyatt was present during this conversation 83 Hamberg testified that on Novem-
ber 17 he was told by Wyatt that she had heard Chew tell Faith that Hamberg
61 Lively's explanation that he did not put De Mundrum back on the saw line at the
latter's request because he would have to use his right side which would- aggravate his
appendicitis condition is not entitled to credence in view of Lively's admission that he did
.not know if De Mundrnm ' s ailment was then or later found to be appendicitis.
02 At this time, Hamberg, and Pohlman were the only ones in the mold repair department
-who wore UMWA buttons. Faith did not wear her button until December 13.
63 Wyatt was no longer employed by the respondent at the time of the hearing, and the
Tecord shows that she had established residence outside the State
OWENS-ILLINOIS GLASS COMPANY 1045•
and Pohlman did not know what they were getting themselves into by wearing
the steward's buttons and that they were going to be transferred.64
On November 19, Hamberg and Pohlman were transferred from the day shift to
shift work. Employees on the day shift worked from 7: 30 in the morning to
4: 30 in the afternoon The working hours of employees on shift work, however,
were rotated each week on the basis of the following schedule : 6 a in to 2 p. in.,
2 p. in. to 10 p. in, and 10 p in. to 6 a. in. In addition, employees on the day shift
worked a half day on Saturdays for which they received overtime pay, but this
was not true of employees on shift work. Hamberg left the respondent's employ
on December 27, 1943, and Pohlman entered the United States Navy in January
or February 1944.
On Saturday, December 11, a conference was held at the Regional Office of
the Board at which time arrangements were made for the election to be held
on December 23 Representatives of the respondent, GBBA, and UMWA attended,
and Faith was present as one of the representatives of UMWA. On Monday,
December 13, Faith wore her UMWA steward's button in the plant for the first
time. That evening, Arnold Leitner, foreman of the mold repair department,
told Faith that she was being transferred to shift work and instructed her to
report for work the following night at 10 o'clock When Faith asked if the trans-
fer was to be permanent, Leitner replied that he did not know and that things
were in such a mess that they would have to be straightened up.85 During the
first or second week of January 1944, Faith left the respondent's employ and se-
cured other employment because she did not like shift work. Hamberg, Pohlman,
and Faith were the only employees in the mold repair department who were
transferred from the day shift to shift work at this time.
The respondent contends that Hamberg, Pohlman, and Faith were transferred
in the normal course of departmental operations, and that Faith was transferred
for the additional reason that she was spending too much of her time in talking
to another employee in the department. Superintendent Chew testified that
" Chew testified that Faith had been in the habit of spending a good deal of her time
speaking to an employee in the department who was a married man, and stated as his
version of the conversation that what lie-had said to•Faith was , "You kids don ' t know-what
you are getting into ," and explained that he was referring to Faith and the employee to
whom she was in the habit of talking . Chew admitted that be had probably told Pauline
Wyatt that Hamberg and Pohlman were going to be transferred'but denied that he had
seen the UMWA buttons which Hamberg and Pohlman were wearing , and denied that he
had referred at any time during this conversation to UMWA or to the steward's buttons.
In view of Chew's admission that he probably did tell Wyatt that Hamberg and Pohlman
were going to be transferred , and that the testimony of Faith and Hamberg , both of
whom the undersigned regards as credible witnesses , was mutually corroborative with
respect to the fact that Chew did mention the steward ' s buttons , the undersigned does
not credit Chew 's denial or his explanation.of the conversation in question, and finds
that he made the statements as related by Faith and Hamberg
85 Leitner admitted that he had made the foregoing statement to Faith. He testified
that approximately 2 weeks before he had warned her about spending her time talking
to another employee in the department who was a married man and that it was this
circumstance which he referred to as "a mess to be cleaned up." He denied that he
had known that Faith was wearing a UMWA steward ' s button The statement admittedly
made by Leitner is thus susceptible of either of two conflicting interpretations, viz.,
that by a "mess to be cleaned up " he was referring to the activities of UMWA is the
department , peisonified by Faith, who was wearing a UMWA steward 's button, or that,
instead , he was referring to conversations between Faith and a married man in the
department . In view of the manifest antagonism of the respondent toward UMWA,
as otherwise shown herein , the fact that this was the first day on which Faith wore
her UMWA steward 's button in the plant and the election was imminent , and that the
language employed does not seem convincingly related to the incident to which Leitner
alleged that it referred , the undersigned finds that the statement in question was directed
to UMIWA activities in the department.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfers of employees in the, mold repair department from day work to shift
work are frequent, that Bamberg and Pohlman as well as all other employees
hired in the department were told that they would have to take their turn on
shift work, that experienced people are preferred on shift work, and that the
employees in question were transferred accordingly. Chew further testified
that Faith was transferred for the additional reason that she was in the habit
of going to the end of the shop about 100 feet from where she worked and talking
to an employee there, that the latter's foreman as well as Chew and Leitner spoke
to Faith about it, without result, and that Chew therefore decided to transfer
her.
Hamberg and Faith each testified that new employees were generally given
shift work. Faith further testified that the usual practice in the -department
was to place new employees on shift work and to transfer older employees from
shift work to the day shift because the latter was the preferred shift. In addition
to the fact that Faith impressed the undersigned as an intelligent and honest
witness, her testimony do this point would in itself seem to be reasonable since
the day shift would offer the advantage not only of regular and more convenient
working hours but also that of overtime pay earned as the result of working half-
days on Saturday. Moreover the record shows that polishing was not a skilled
operation 66 and that an employee could be trained to do that work in about 2
weeks. The record further shows, according to Chew's own testimony, that
Pohlman had been transferred from the restaurant to the mold repair department
just before November 19. It is difficult to see how Pohlman, under such circum-
stances, could be considered an experienced polisher. The undersigned is of
the opinion and finds that the experience of an employee was not a prerequisite to
the performance of shift work.
With respect to the person to whom Faith is alleged to have spoken, the records
shows that he worked about 35 feet from the toolroom where Faith was required
to go in order to obtain certain materials for her work. Although Chew testified
on direct-examination that he had spoken to Faith about this matter prior to her
transfer, he testified on further examination that he had spoken to her only once
and that was at the time she was transferred, and also testified that the matter
of Faith's talking first came to his attention about the beginning or middle of
September, and that Chew himself saw her talking to the same person on 12
or 15 occasions thereafter and each time instructed her foreman to speak to
her about it. Leitner, Faith's foreman, testified that he last spoke to her'about
this matter approximately 2 weeks before she was transferred Chew admitted
that Faith's behavior did not interfere with the work in the department.
It does not seem reasonable to the undersigned that If Chew had known of
Faith's talking from the middle of September and on 12 or 15 occasions there-
after saw her violate instructions, he would have done nothing about the matter
until the time she was transferred.
The undersigned is of the opinion that Chew's testimony is lacking in that
degree of convincingness which entitles it to credence. His contradictions with
respect to the number of times he spoke to Faith, the unreasonableness of his
assertion that he had known that Faith was talking to the same individual since
at least the middle of September and had himself seen her continue to do so
in violation of instructions on 12 or 15 occasions thereafter and did nothing
more on each occasion than to tell her foreman again to speak to her about it,
and the fact that Foreman Leitner testified that he last spoke to Faith about
66 Hamberg testified that more skill is required on shift work than day work, but his testi-
mony in this regard referred to the fact that at times more speed is required on shift
work if there are a great number of pieces to polish.
OWENS-ILLINOIS GLASS COMPANY 1047
the matter approximately 2 weeks before she was transferred, lead the under-
signed to the conclusion, and he so finds, that the respondent did not transfer
Faith because she was in the habit of talking to another employee in the
department.
The record shows that Hamberg, Pohlman, and Faith were the only employees
In the mold repair department to wear UMWA buttons, that each was trans-
ferred a day or two after first wearing such buttons, that they were the only
employees in the department to be transferred at this time, that Superintendent
Chew remarked to Faith on the first day Hamberg and Pohlman wore their
buttons that they did not know what they were getting into with the union and
further told Wyatt that Hamberg and Pohlman were going to be transferred, and
that the transfers in each instance not only involved less desirable working hours
but also a reduction in the total amount of weekly pay received by each of the
employees. The record does not support Superintendent Chew's assertion that
these employees were transferred because they were more experienced, and his
testimony with respect to talking by Faith with another employee in the depart-
ment is contradictory and unconvincing.
Upon the foregoing facts and upon the basis of the entire record, the under-
signed finds that the respondent transferred Hamberg and Pohlman on November
19, and Faith on December 14, 1943, from day work to shift work in the mold
repair department because of their membership and activities in UMWA, thereby
discouraging membership in UMWA, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, in violation of Section 8 (1) of the Act.
Concluding Findings
The facts related above show that respondent was opposed to the efforts of
its employees to organize and that it engaged in an energetic and persistent
campaign to forestall such efforts.0' The interrogation of employees concerning
their union activities and the anti-union statements of Plant Manager Flexon,
Superintendent Acker, and Foremen Manns and Gentry, the union poll con-
ducted by Foreman Gentry, the activities of Plant Manager Flexon in forming
a company-union, and the discharge of Duvall, a leading adherent of the IAM,
within a few days after notification had been sent to the respondent that the
IAM had filed a petition for certification, were the means employed by the
respondent to discourage and prevent its employees from becoming members of
the IAM.
67 The respondent and GBBA contend that the waiver filed by UMWA on September
17, 1943, constitutes a bar to this pioceeding and that the complaint should therefore
be dismissed . The waiver concerned the right of UMWA to protest the results of the
election by reason of any of the alleged unfair lallr practices set forth in the original
charge The waiver did not, however, either actually or purportedly affect the power
of the Board to determine whether or not unfair labor practices had been committed
at a time before or after the date of the waiver. See and compare N. L. R. B. v. McKes-
son & Robbins , Inc, et al, 121 F. (2d) 84 (App. D C ) , Wallace Corporation, et al v.
N. L R R., 141 F. (2d) 87 (C. C. A 4). Nor did any statements made by the representa-
tive of UMWA that lie was willing to go to an election despite his knowledge of unfair
labor practices committed by the respondent in any way affect the power of the Board to
proceed in the instant case Moreover, it does not appear that either the representatives of
UMWA or the Regional Office of the Board were aware of the full nature and extent of the
unfair labor practices committed by the respondent after the date of the waiver and up to
the time the election was held See The Locomotive Finished Material Company, 52 N. L.
R B 922 , enf'd ; Locomotive Finished Material Company, et at v. N. L R. B , 142 F.
(2d) 802 (C. C. A. 10).
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the IAM withdrew in its effort to organize the employees in the latter part
of July, however, and was succeeded by UMWA, the respondent then adopted a
variety of counter-measures designed to defeat that organization. Hockett was
transferred to the salvage department under conditions which amounted to his
virtual isolation from the rest of the employees shortly after UMWA in a letter
to the employees announced that Hockett was one of the members of its organizing
committee and on the same day or the day after UMWA had distributed leaflets-
containing a similar announcement. Plant Manager Flexon continued to make
anti-union statements and threats to the employees, both singly and in groups,
and the "advice" offered by Superintendent Gehrke to employee Sorbie when the
latter told him that his name had appeared on a UMWA handbill as a steward
and that he was not a member of that organization, was to publicly renounce
UMWA by placing an article in the local newspaper 09
When UMWA continued to succeed in its efforts to organize the employees,
despite these tactics on the part of the respondent,, Plant Manager Flexon then
resorted to the technique of calling upon GBBA to conduct a counter-campaign
and ,to organize the employees in opposition to UMWA, a device which be informed
employees Harris, Rector, and Sons that he had employed. Although it had been
the original intention of GBBA, according to Flexon's statement to these
employees, to delay its organizational campaign for two or three months when the
employees in the plant would no longer be so disturbed, the petition for certifi-
cation filed by UMWA on September 17 and the conference preparatory to a hear-
ing thereon held at the Regional Office of the Board on September 30, made it
necessary for GBBA to become active immediately.
Beginning immediately after September 30, and continuing until the date of
the election, GBBA engaged in an intensive drive to enlist members among the
employees with the active aid and assistance of the respondent, rendered by
means of such affirmative acts as solicitation on its behalf by various crew
leaders and tank foremen, and statements in its favor made by Plant Manager
Flexon. Nor may these activities aloft , be regarded as the sole measure of
support and assistance rendered by the respondent to GBBA, for the respondent
engaged in other conduct, negative in character and designed to discourage, the
employees from affiliation with and adherence to UMWA. Thus, within a day
or two after they first wore UMWA steward's buttons in the plant, employees
De Mundrum, Hamberg, Pohlman, and Faith were transferred to other jobs, with
68 Gehrke's suggestion is not relieved of its anti -union effect merely by reason of the
fact that Sorbie went to him for advice This is not a case where an employer , upon the
request of an employee , renders information as to whom the employee may communicate
with or what normal and legitimate means are at his disposal for withdrawing from a
union In the present case, Gehrke might have told Sorbie to communicate with the
representative of UMWA if there had been an error as to his membership in that
organization or if he wished to withdraw from it, or he might have told Sorbie that the
problem was one for him alone to decide . Instead , he chose to suggest to Sorbie a method
of renouncing UMWA which was clearly designed to discredit that organization and by
its public nature to discourage other employees from joining . Cf W. E . Lipshutz, doing
business as The Monarch Company, 56 N L R. B 1749
99 The respondent and GBBA contend in their respective briefs that the assistance
rendered GBBA by the crew leaders and tank foremen in question was in effect nullified
because they constituted only a small number of the total group of crew leaders and
tank foremen in the plant The undersigned is of the opinion that this contention is
without merit The effectiveness of acts of interference with the rights of employees to
organize cannot be measured by fractional references to the number of supervisory em-
ployees who engage in such acts of interference , particularly where , as here , their con-
duct constituted but part of a total pattern of anti -union conduct engaged- in by the
respondent -
OWENS-ILLINOIS GLASS COMPANY 1049
a consequent reduction in the wages earned by each of these employees ; and
concurrently with these activities, Foreman Reed referred in derogatory terms
to a UMWA button worn by one of the employees as a "dog tag" and pinned a milk
bottle cap on his clothing and wore it in the plant, an action on his part which he
testified he regarded as a "joke," but which signified in unmistakable terms his
derision of UMWA buttons worn by the employees in the plant. At about the
same time, Foreman Lively advised one of the employees to give Lively the
UMWA button which the employee was wearing and "get on the right side." And
shortly thereafter, and approximately two weeks before the election, Crew Leader
Augenbaugh warned two employees that they had better remove the UMWA
buttons which they were wearing if they wished to retain their jobs, and further
told one of these employees that he had better vote for GBBA if he knew what
was best for him.
As a final act of assistance rendered GBBA, the respondent, two days before
the election, authorized publication of the newspaper article of December 21
with knowledge of the fact that it was thereby providing verification of the
claim of GBBA that it had been responsible for securing increased benefits under
the vacation plan for the employees. The statements in the newspaper article
were finally and fully confirmed on the following day when the respondent dis-
tributed copies of the plan in the pay envelopes of the employees.
The record does not sustain the contention, jointly advanced by the respond-
ent and GBBA in their respective briefs, that the vacation plan in question was
agreed upon between those two parties as the result of collective bargaining
negotiations. The contract consummated between the parties contains no such
provision, nor was any showing made that any of the prior contracts between
the parties made provision for the plan during the 7 or 8 years it had been in
existence Moreover, although the approval of the National War Labor Board
was required and was secured for the vacation plan in effect during the pre-
ceding year, the respondent did not secure the endorsement of GBBA at the time
it then filed its application for such approval. Personnel Director Martin's
explanation that GBBA's endorsement was not secured at that time because the
requirement of securing approval of the National War Labor Board arose at
too late a date to enable the respondent to notify the employees of the plan
before Christmas is not credible in view of the fact that the requirement referred
to, which was embodied in Executive Order No. 9250, was issued October 3, 1942,
while the application filed by the respondent the following year, which con-
tained the endorsement of GBBA, is dated October 25, 1943. No reason appears
why the respondent should have considered that it did not have sufficient time
after October 3, 1942, to secure GBBA's endorsement that year when it did
secure such endorsement and filed its application more than 3 weeks after that
date on the following year. In addition, GBBA represented only the machine
operators who constituted but a small portiom,Qf the total number of employees
in the plant, yet the newspaper article which was prepared from information
furnished by Flexon and the GBBA handbill stated that the plan, which covered
all employees, had been secured through efforts of GBBA. Although AFGW
had also endorsed the application in question when it was filed with the National
War Labor Board, neither the newspaper article nor the GBBA handbill men-
tioned that fact.
Although Flexon denied that he had given the story concerning the vacation
plan to the newspaper, he admitted that he furnished the information from
which the story was written, upon the newspaper's request, and authorized it
to print it if it wished. The GBBA handbill containing the statement to the
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect that the employees should watch the local newspaper for verification of
GBBA's announcement that the vacation plan had been approved was one of the
items which Flexon sent to the newspaper. It is thus apparent that 1Flexon
knew that by so doing he was providing the verification promised by GBBA
of its assertion that it had secured for the employees the benefits to be derived
under the plan.
The contention advanced by the respondent in its brief to the effect that copies
of the vacation plan were distributed to the employees in their pay envelopes
on December 22 in accordance with a practice which the respondent had followed
in the past is not supported by the record. For although December 7 and 22 had
been standard pay days at the plant, the record shows that the announcement
of similar plans for each of the preceding 4 years had been made on Decem-
ber 8, 1942, December 5, 1941, December 16, 1940, and December 21, 1939. Nor
was announcement of the plan in 1943 made at the same time in each of the
other plants of the respondent. Announcements were made at the various
plants on December 21, 22, 23, 30, and January 1, and in some plants actual
copies of the plan were not distributed until after the announcement had been
made, in one instance the date being as late as January 7. Irrespective of the
respondent's contention in this regard, however, no showing was made as to why
the respondent could not have postponed for a few days announcement and dis-
tribution of copies of the plan at the Alton plant in view of the impending
election.
The record- in this case shows that the respondent's actions have been such
as to go even beyond becoming "a participant in a contest to which it is not a
party." 70 Through the solicitation of its supervisory employees on behalf of
GBBA and derogation of UMWA, the statements of its supervisory employees
urging, persuading, warning, and threatening its employees from becoming or
remaining members of UMWA, the interrogation of its employees concerning union
activities, its discriminatory treatment of known advocates and stewards of
UMWA, and its public announcement in the newspaper article of December 21,
verifying the claim of GBBA that it had been responsible for securing increased
vacation benefits for all the employees, and its distribution of copies of the plan
to the employees on December 22, the respondent was rendering-its. assistance
to and asserting its influence on behalf of GBBA and against UMWA at a crucial
period preceding the election when the employees were to be left free to exercise
an unhampered choice between those two organizations
The record as a whole amply demonstrates and the undersigned finds that
by the foregoing acts the respondent engaged in a continuous and persistent
course of conduct designed to defeat the efforts of its employees to achieve self-
organization, that the anti-union activities of the respondent were first directed
against the IAM and thereafter against UMWA, as the IAM's successor in the
plant, and that in a final effort to defeat UMWA the respondent called upon
GBBA to organize the employees and rendered its aid and assistance to GBBA
during its organizational campaign, and that by such course of conduct the
respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1) of
the Act."
I
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in section I, above,
70 See Reliance Manufacturing Company, et al. v. N. L. R. B., 143 F. (2d) 761 (C. C. A. 7).
71 See footnote 41, supra
OWENS-ILLINOIS GLASS COMPANY 1051
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.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.72
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1 Owens-Illinois Glass Workers Union, affiliated with -District 50, United Mine
Workers of America, and Glass Bottle Blowers Association of the United States
and Canada, affiliated with the American Federation of Labor, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of'Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Owens-Illinois Glass Company, To-
ledo, Ohio, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the exercise
of the right to self-organization by urging employees to join, or soliciting members
for Glass Bottle Blowers Association of the United States and Canada, affiliated
with the American Federation of Labor, or by in any other manner rendering
its aid and assistance to that labor organization, by urging, persuading, warning,
and threatening its employees to refrain from becoming or remaining members
of Owens-Illinois Glass Workers Union, affiliated with District 50, United Mine
Workers of America, by questioning its employees concerning union activities,
by threatening to discharge or transfer or by discharging and transferring em-
ployees, or in any other manner discriminating against them with respect to
their hire, tenure, terms, or conditions of employment, because of their member-
ship in or activities on behalf of Owens-Illinois Glass Workers Union, affiliated
With District 50, United Mine Workers of America, and by interfering with the
free choice by its employees of -a collective bargaining representative ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
Owen,s-Illinois Glass Workers Union, affiliated with District 50, United Mine
Workers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activi-
72 During the course of the hearing , counsel for the Board stated that the Board was
not seeking either reinstatement or back pay for any of the individuals alleged to have
been discriminated against. The undersigned will therefore make no recommendation in
this regard.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties for the purpose of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the Act.
2. Take the -following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its Plant No. 7 at Alton, Illinois,
and maintain for a period of at least sixty (60) consecutive days from the
date of posting, notices stating: (1) that the respondent will not engage in the
conduct from which it is recommeided that it cease and desist in paragraphs
1 (a) and (b) of these recommendations; and (2) that the respondent's em-
ployees are free to become or remain members of Owens-Illinois Glass Work-
ers Union, affiliated with District 50, United Mine Workers of America ;
(b) File with the Regional Director for the Fourteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notify said Regional Direc-
tor in writing that it has complied with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take
'the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as ameilded, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II, of said Rules and Regulations, file with the Board.,
Rochambeau Building, Washington, D. C., an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of
a brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file'a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring -
the case to the Board.
DAVID KARA-sICK,
Trial Examiner.
Dated September 14, 1944.