Brillo Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1940

20 N.L.R.B. 806 (N.L.R.B. 1940)

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