Brewer-Titchener Corp.

National Labor Relations Board - Board Decisions

Jan 8, 1940

19 N.L.R.B. 160 (N.L.R.B. 1940)

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