Porcelain Steels, Inc.

National Labor Relations Board - Board Decisions

Jan 20, 1943

46 N.L.R.B. 1235 (N.L.R.B. 1943)

In the Matter Of PORCELAIN STEELS, INC. and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, DISTRICT 54 (A. F. OF L.)
Case No. C-2303.-Decided January 20, 1943
Jurisdiction : porcelain enameled tank manufacturing industry.
Unfair Labor Practices:
Interference, Restraint, and Coercion: questioning applicants for employment
concerning their union affiliation ; participating in organizational activity ;
disparaging affiliated union and advocating company union.
Company-Dominated Union: unaffiliated union organized with supervisory par-
ticipation upon receipt of bargaining request from affiliated union; approval
of election of officers on company time and property ; prompt recognition of
and grant of contract to unaffiliated union.
Discrimination: discrimination against and demotion of union employee; dis-
charge of two union employees for an offense for which other employees
engaging in like conduct were not discharged.
Collective Bargaining: majority established by application cards-refusal to
bargain by: organization of company union upon receipt of collective bargaining
demand of affiliated union, and refusal thereafter to bargain with affiliated
union until election should be held to prove majority-alleged loss of majority
subsequent to refusal to bargain, held immaterial.
Remedial Orders: cease and desist unfair labor practices; upon request, to
bargain collectively, dominated organization, disestablished, and contract
therewith, abrogated ; reinstatement and back pay awarded. r
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees. 'excluive of clerical and supervisory employees.
DECISION
AND
ORDER
On August 22, f942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report annexed hereto. Thereafter, the respondent duly
filed exceptions to the Intermediate Report and a supporting brief.,
I At the respondent's request, a hearing for the purpose of oral argument was scheduled
to be held before the Board at Washington, D. C., on October 22, 1942, and the parties
were notified thereof. Prior to such date, however, the hearing was canceled at the
respondent's iequest and on consent of the parties.
46 N L R B. No. 151.
1235
1236 ' DECISIONS OF NATION1AL' LABOR RELATIONS BOARD
The Board has considered the' rulings made by the Regional Director
prior to the hearing and by the Trial Examiner at and subsequent to,
the hearing , and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief , and the entire record in the case, and hereby
adopts the findings, conclusions , and recommendations made by the
Trial Examiner, with the following addition :
The Trial Examiner has found that on November 7, 1941, Foreman
Crawford joined Joe Maffeo , an employee , in urging other employees
of the respondent to form "a company union," and that this was in
part the cause of the ' subsequent formation of the Association. In
'addition , employee McKernan testified without contradiction that
Crawford , after thus advocating a "company union ," drove him and
several other employees to Bedford and gave a similar talk to half a
dozen more employees of the respondent , all of whom were prominent
in the Union . This testimony was corroborated by two other employees
at the hearing and we credit it. We find that Crawford engaged in
the activities thus attributed to him, and that thereby and by the other
conduct found by the Trial Examiner , whose findings we have affirmed
and adopted , the respondents engaged in unfair labor practices , within
the meaning of Section 8 (1) and ( 2) of the Act.
'ORDER
Upon the basis of the foregoing findings of fact and the entire, record
in the case , and pursuant to Section 16 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, Porcelain Steels, Inc., Cleveland, Ohio, and its
officers , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Porcelain
Employees' Association or with the formation OF administration of
any other labor organization of its employees , and from contributing
financial or'other support to Porcelain Employees ' Association or to
any other labor organization of its employees;
(b) Recognizing Porcelain Employees' Association as the represent-
ative of any of its employees for the purpose _ of dealing with the
respondent concerning grievances , labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment;
(c) Giving effect to the contract of December 1,1941, with Porcelain
Employees ' Association , or to any modification, extension , supplement
or renewal thereof, or to any superseding contract;
(d)-. Discouraging membership in International Association of Ma-
chinists , District 54 (A. F. of L.), or in any other labor organization, .
PORCELAIN STEELS,. INC. 1237
by discharging any, of its employees or in any' other manner discrimi-
nating in'regard-to their hire or tenure of employment or any) term or
condition of their employment;
(e) Refusing to bargain collectively with International Association
of Machinists, District 54 (A. F. of L.), as the exclusive representative
of all its production and maintenance employees, exclusive of clerical
and supervisory employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment,
(f) 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 labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, 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 :
(a) Withdraw all recognition from and completely disestablish
Porcelain Employees' Association as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment;
(b) Offer to Terrence McKernan and Anthony Ferretti immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges;
(c) Make whole Terrence McKernan and Anthony Ferretti for any
loss of pay they. may have suffered by reason of the 'respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount which he normally would have earned
as wages during the period from the date of his discharge to the date
of the respondent's offer of reinstatement, less his net earnings during
such period;
(d) Upon request, bargain collectively with International Asso-
ciation of Machinists, District 54 (A.F. of L.), as the exclusive repre=
sentative of all the respondent's production and maintenance em-
ployees, exclusive of clerical and supervisory employees, in respect to
rates of pay, wages, hours of employment, and other conditions of
employment ;
(e) Post immediately in conspicuous places in its plant at,Cleve-
land, Ohio,, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stat-
ing: (1) that the respondent will,not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b),, (c),
(d), (e)', and (f) of this Order; '(2) that the respondent will take
1238 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
the affirmative action set forth in paragraphs 2 (a), (b), (c ), and (d)
of this Order; and (3) that the respondent's employees are free to
become or remain members of International Association of Machin-
ists, District 54 (A. F. of L.), and that the respondent will not dis-
criminate against any employee because of membership or activity
in said organization;
(f) Notify the Regional Director for the Eighth Region, in writ-
ing, within ten (10) days from the date of this - Order what steps
the respondent'has taken to comply herewith.
CHAIRMAN MILL Is took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
llr. Ramey Donovan, for the Board.
Squires , Sanders and Dempsey by Messrs. R. C. Green, Paul J. Bickel, and
T. H. Westlake, of Cleveland, Ohio, for the respondent
Mr. Milton Alfred Roemisch , of Cleveland, Ohio, for the Porcelain Employees'
Association.
STATEMENT OF THE CASE
Upon an amended charge duly filed on July 7, 1942, by the International
Association of Machinists, District 54 (A. F. of L ), hereinafter called the Union,
the National Labor Relations Board, herein called the Board, by the Regional
Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated
July 7, 1942, against Porcelain Steels, Inc, herein called the respondent, alleg-
ing that the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section S (1), (2), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act Copies of the complaint accompanied by notice of hearing
were duly served upon the respondent, the Union, and upon Porcelain Employees.
Association, herein called the Association.
With respect to the unfair labor practices, the complaint alleged in- substance
that the respondent had (1) since August 1941 interfered with, restrained, and
coerced its employees by questioning applicants for employment about their
union affiliations ; by directing employees to* conduct a union meeting in the
plant ; by threatening to shut down its plant if it were organized by the Union ;
by promising employees a wage increase if they urged the holding of a Board
election ; and by the isolation of Terrence McKernan, an active union member ;
(2) refused on November 4, 1941, to bargain collectively with the Union although
at that time it represented a majority of the respondent's production and main-
tenance employees, alleged to be an appropriate unit; (3) in October 1941 in-
stigated and interfered with the formation of the Association and had dominated
its administration; (4) in January 1942 discharged and iefnsed to reinstate
Terrence McKernan and Anthony Ferretti because of their union membership
and activity.
On July'20, 1942, respondent filed its answer denying that it had engaged in
any unfair labor practices. ,
Pursuant to notice , a, hearing was held at Cleveland , Ohio, on July 20 and 21,
1942, before Robert M. Gates, the undersigned Trial Examiner, duly designated
a
PORCELAIN STEELS, INC. ' 1239
by the Chief Trial Examiner. The Porcelain Employees' Association filed an
application for leave, to intervene, which was-granted. ' It thereupon filed an
answer denying that .the respondent had committed any unfair labor practices.
The Board, the respondent, and the intervenor were represented by counsel.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issue was afforded all parties. Respondent
filed a motion for postponement of the hearing and extension of time in which
to file an answer. This motion was denied by the Regional Director prior to
the hearing During'the course of the hearing the intervenor applied for sub-
penas directed to•all the employees of respondent: This application was denied.
At the close of the hearing, the attorney for the Board moved to conform the
pleadings to the proof adduced at the hearing, which motion was granted. Op-
portunity was afforded to all parties for oral argument but none was had, the
intervenor expressly waiving that right. All parties were given, in addition,
permission to file briefs, but none was filed
Upon the entire record of the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF'FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation, engaged in the manufacture of porcelain
enameled tanks in the city of Cleveland, Ohio. The principal raw material used
in the production of the tanks is steel. During a yearly period, including part of
1941 and part of 1942, it used steel worth about $100,000, of which over 50 per- p
cent was shipped to the respondent fi oin outside the State of Ohio During the
same period the respondent sold about $300,000 of its finished products, of which
over 50 percent was sold and shipped outside the State of Ohio Respondent ad-
mitted that it was engaged in commerce within the meaning of the Act. At the
time of the hearing the respondent employed 81 employees.
II THE ORGANIZATIONS INVOT VED
International Association of Machinists, District 54 (A. F. of L ), and Por-
celain Employees' Association are labor organizations within the meaning of
Section 2 (5) of the Act. Each admits to membership employees of the respond-
ent, but the Association limits its members to such employees.
I
III. THE UNFAIR LABOR PIIACTICES 1
A The questioning of applicants for employment about their union affiliations
In August 1941 Howard Johnson applied for work at the respondent's plant and
was interviewed by Walter S. Gaines, its plant superintendent. In the'course of
the interview, Gaines asked Johnson whether the latter was a union member.
Johnson replied that he was not and began work the next day 2
Shortly thereafter, Anthony Ferretti likewise applied for work. On the regular
printed application card which listed questions about his previous employment
was a question entitled "Union Affiliation." Steven Breznen,' the assistant
' The respondent called no witnesses to contradict the testimony offered by the Board's
witnesses except on the issue of the Union's majority and the crap game hereinafter
described. ^
a Gaines was not working for the respondent at the time of the hearing, but was em-
ployed in Ohio . No application was made by the respondent for a subpena for him and he
did not testify . Johnson's account of the conversation , was not contradicted
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treasurer of the respondent, testified that he-himself filled out the application
cards after questioning applicants but "never insisted" that the blank on union
affiliation be filled in. The respondent in its verified answer, however, stated:
Respondent admits that applicants for employment were asked whether they
belonged to any labor organization and further as to what labor organization,
if any, they did belong. Respondent avers that this inquiry was not for the
purpose of restraining or coercing any such applicant but for the sole purpose
of affording this Respondent some information as to how many, if any, of
its employees were members of a labor organization and as to which labor
organization, if any, was the proper one for Respondent to recognize in its
future dealings with its employees.
The undersigned rejects this explanation (as to which no proof was offered) as
incredible and in any event as not justifying such inquiries. Questioning appli-
cants for employment about their union membership would not enable it to
determine which, if any, union represented its employees and was certainly
improper before a request was even made. The undersigned finds that such
inquiries are coercive, and satisfy no legitimate needs of the respondent.3
B. The Union's organizing efforts
In September or October, 1941, Johnson after discussing the need for a trade
union with 25 or 30 of his fellow employees, visited. the headquarters of the
Union and requested it to'organize the respondent's plant. I. the last week of
October 1941 about ten employees of the respondent held a meeting after working
,hours on the premises of a neighboring concern immediately adjacent to the
respondent's premises and in the same building. Gaines, who happened to be
passing by, inquired what they were doing. Upon being told that they were dis-
cussing the Union, he stated that as long as they were going to have a meeting
the group might as well meet in the respondent's office where he could sit in on
it. The group then adjourned to the respondent's office.'
That same month, Mark Crawford, foreman in. charge of the night shift,°
engaged in conversation Anthony Ferretti, an employee subject to his supervision.
Crawford asked Ferretti whether he had joined the Union and upon being told
that the latter had, replied that he did not think the Union would do him any good.
Ferretti testified and the undersigned so finds that Crawford then remarked:
"I think the company union would be better, and Mr. Gaines wouldn't get mad
at you, and it would do more good for you." Crawford also stated that the
plant would probably move, to another city if the A. F. of L. came in.
About this time Gaines called' Johnson to his office on several occasions and
discussed unionism. Gaines, at one of these talks, told Johnson that he favored
a "shop'union" because a shop union could do more for employees than any other
union Gaines also stated that if they were to join a national union, the em-
ployees should choose the C. I. O. which D. D. Smith, the president of the respond-
ent, favored.
On November,3, 1941, Matthew DeMore, president of the Union, wrote Smith
the following letter :
This will, serve to inform you that the International Association of Ma-
chinists, District #54, ,has ,succeeded ,in organizing your employees. ,
8 Texarkana Bus Co. V. N. L. R. B., 119 F. (2d) 480 (C. C. A. 8).
The record does not disclose what happened in the office , but the respondents answer
admits that Gaines was present at,the meeting
Crawford was not called as a witness ,by the respondent , nor was there any showing
that he was no longer employed by the respondent.
PORCELAIN ST1WILS, INC. 1241
2
We are prepared to prove our majority and we, are requesting.a meeting
for the purpose of getting together on the question of wages„hours, working
conditions and grievances.
It would appreciate an early reply to this communication for the purpose
of discussing these problems.
Very, truly, yours,
MATTHEW DEMORE, '
President, District #54.
That same morning, Terrence McKernan, an employee on the day shift, dis-
tributed about 40 to 45 union buttons among his fellow employees. About 35 or
40 employees of the 46 persons then employed- wore such buttons on that day.
The next day, McKernan, a member of the Union's shop committee, and two other
employees were laid off.
The next day the Union filed charges with the Board accusing the respondent
of the illegal lay-off of six employees, including McKernan. A conference was
arranged-at the Board's Regional Offices and' Gaines agreed to reinstate the moll
laid off on Thursday, November 6.
That day, however, the entire plant shut down, allegedly because of a lack
of raw materials.
C. The organization of the Association
On Friday, November 7, while the plant was closed down, Joe' Maffeo, an:
employee, and Crawford, the night foreman, called at McKernan's hone and
assembled some employees there. Maffeo stated that he hid, seen Gaines about
forming a company union and that Gaines had promised,a general increase of
10 cents per hour and an additional 5-cent increase one month later, if such a
union were formed. Crawford in turn spoke of'the benefits of a company union,
stressing that it would be iinnecessary to pay dues to union officials. That after-
noon the Union's shop committee, consisting-of McKernan and three others. ac-
companied by Maffeo, visited Gaines in his office. There, Maffeo, in Gaines'
presence, repeated Gaines' remarks about the two successive increases and Gaines
nodded his head in assent.
On Monday, November 14, the plant reopened and the employees, including
McKernan, returned to -bork. That`morning Gaines called the Union shop com-
mittee from their work to his office and, instructing them to keep quiet while he
did the talking, invited them to attend a conference with DeMore in the plant
DeMore renewed his demand for recognition of the Union, but Gaines insisted
upon an election to determine, whether the 'Union represented the employees.
DeMore then suggested the conducting of a pay-roll check, i e, a comparison'
of the Union's application cards against the respondent's pay roll The'confer-
ence finally broke' up after DeMore requested a meeting separately with the
Union shop committee on Thursday, November 13
A day or two after the conference with DeMore, Gaines called McKernan into
his office, offered him a cigar, and asked whether he had seen DeMbre lately.
Vincent Williams, another union committeeman„was likewise called in by, Gaines.
McKernan testified and the undersigned finds that Gaines then, said to the
comitteemen :
Well, now the sooner you get this election pushed through, we can, get the
AFL out, and we can be able to negotiate with you fellows.
Gaines then took McKernan to Smith's office, dialed D'eMore's telephone num-
ber and told McKernan to urge DeMore to agree to an election. DeMore, how-
1242 D'ECISIONS OF NATPONIAL' LABOR RELATIONS BOARD
ever, insisted on meeting the" shop committee on November 13, as originally
planned. After the conversation, as McKeruan and Williams were leaving the
office, Gaines patted Williams on the back McKernan testified, and, the under-
signed finds ,'that Gaines then said: "I will treat you fellows white for this."
On Thursday, November 13, at the end of the day shift, McKernan and the
remaining committeemen called on DeMore Maffeo; who was not on the com-
mittee, was sent by Gaines to accompany the committee. Maffeo, who was on
the night shift at that time, punched in on the time clock and then without
punching out left the plant.
When the group met with DeMore, McKernan, speaking to DeMore privately,
told him about the organization of the independent union and that Gaines wished
to push the election. Maffeo was emphatic at this conference in advising DeMore
that the Union would win an election, if scheduled.
That week' a meeting was held in the'respondent's plant at 3: 30 p. m., at the
end of the day shift. The meeting lasted one hour. Officers were elected by
balloting. While the employees were looking for paper, Gaines sent McKernan
to his office to get a yellow, pad on his desk! Employees of the second shift,
including