Hazel-Atlas Glass Co.

National Labor Relations Board - Board Decisions

Aug 18, 1941

34 N.L.R.B. 346 (N.L.R.B. 1941)

In the Matter of HAZEL-ATLAS GLASS COMPANY and G. E. ROGERS, ON
BEHALF OF HIMSELF AND OTHERS, AMERICAN FLINT GLASS WORKERS
UNION OF NORTH AMERICA, AND LOCALS AND BRANCHES THEREOF,
PARTY TO THE CONTRACT
Case No. C-1735.-Decided August 18,1941
Jurisdiction : glass manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threatening employees with loss of em-
ployment if union activity continued ; threats to close plant if union organiza-
tional drive successful ; surveillance of union meetings by Company officials.
Discrimination: discharge of one employee for union activity ; asserted violation
of employer rule requiring employee laid off to report for work found pretext
to cloak discharge; even if true discriminatory refusal to rehire-refusal to
reinstate certain employees to different available work for which employees
qualified after non-discriminatory lay-off for production curtailment-certain
employees discriminatorily laid off during general lay-off and discriminatorily
denied reinstatement-foreman, ineligible to membership in union, who refused
to replace striking operator, held discriminatorily denied reinstatement at
expiration of strike-one employee whose testimony improbable found not
discriminated against.
Remedial Orders: reinstatement with back pay for employees discriminated
against ; deductions from back pay from date of Intermediate Report to date
of Board's Order for employees ordered reinstated by Board but found by Trial
Examiner not to have been discriminated against; reinstatement order not
affected by valid existing closed-shop contract where stipulation in partial
settlement of case provides that employees ordered to be reinstated shall be
given opportunity to become members of closed-shop union.
Definitions :
Foreman in his relation to his employer is an employee within the meaning
of Section 2 (3) of the Act.
Evidence : events leading up to illegal closed-shop contract made with an assisted
labor organization which were settled in stipulation of partial settlement
considered as back-ground material to ascertain the nature of employer's labor
policy and to determine credibility of witnesses in order to resolve unsettled
portions of complaint.
Mr. Robert H. Kleeb, Mr. W. G. Stuart Sherman, and Mr. Harry
Brownstein, for the Board. '
Steptoe & Johnson, by Mr. James M. Guiher. and Mr. Oscar L.
Andre, of Clarksburg, W. Va., for the respondent. .
Holmes cf Lewis, by Mr. W. T. Lewis, of Columbus, Ohio, for the
Flats.
34 N. L. R. B , No. 60.
346
HAZEL-ATLAS GLASS COMPANY 347
Mulholland, Robie c6 McEwen, by Mr. Willard H. McEwen, of To-
ledo, Ohio, for the Flints.
Mr. Lewis R. Linet, Mr. James Maloney, and Mr. William Campbell,
of Philadelphia, Pa., for the G. B. B. A.
Mr. Malcolm A. Hoffmann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed 1 by G. E. Rogers,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Sixth Region (Pittsburgh, Pennsylvania),
issued its complaint and notice of hearing , dated February 17, 1940,2
against the Hazel -Atlas Glass Company, Clarksburg , West Virginia,
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) and ( 3) and Section 2 ( 6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act.
The complaint and accompanying notice of hearing were duly
served upon the respondent , G. E. Rogers , the American Flint Glass
Workers Union of North America , and Branches 565, 566, 567, 568,
569, 570 , and 580 thereof, and Locals 5, 54 , and 88 thereof , herein
collectively called the Flints. The respondent filed its answer on
March 7, 1940. During the hearing, an amendment to the charge
was filed and an amendment to the complaint was likewise made.
The respondent entered its answer thereto on the record at the
hearing. -
Regarding the unfair labor practices, the complaint , as amended,
alleged in substance that : ( 1) from February 1 through April 26,
1937, the respondent engaged in a preconceived plan of interference
with the self-organization of . its employees ; (2) during said time
the respondent requested the Glass Bottle Blowers Association of
the United States and Canada, herein called the G. B. B. A., and
'The charge was filed on April 26, 1938; an amended charge was filed on May 18, 1938,
and a second amended charge on February 27, 1939.
2 After the charge and the amended charge were filed with the Board and brought to the
attention of the respondent , the respondent and the American Flint Glass workers. Union
requested the Board to refrain from proceeding in the matter until certain terminations
involved therein could be considered as grievances and adjustment attempted , pursuant to
an agreement between the respondent and said union . The Board did so refrain and the
terminations were so considered by the parties both locally and at the October 15, 1938,
Joint Conference of the National Association of Manufacturers of Pressed & Blown Glass-
ware and said union . After this procedure failed to adjust the protests, the Board pro-
ceeded on the charges previously filed.
348 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
the Flints' to organize its workers at Clarksburg, West Virginia,
quickly in order to frustrate any organizing efforts of the Federation
of Flat Glass Workers and Local No. 48 thereof, herein called the
Flats,' and the respondent thereafter aided the G. B. B. A. and the
Flints in said activity; (3) the respondent induced its employees
to join the G. B. B. A. and the Flints and induced them 'to transfer
their membership thereto from the Flats; (4) on April 26, 1937,
the G. B. B. A. turned over jurisdiction in the Clarksburg plant to
the Flints; (5) thereafter the respondent encouraged membership in
the Flints and discouraged membership in the Flats; (6) on April
28, 1937, the respondent granted exclusive bargaining rights and a
closed-shop and check-off agreement to the Flints; (7) the Flints
were established and assisted by the respondent and were not the
representatives of a majority of its employees; (8) the respondent
discharged Atkinson and Allman because they refused to join the
Flints; (9) the respondent terminated the employment of G. E.
Rogers and Guy Radcliff because of their militant activities on
behalf of the Flints; (10) the respondent terminated the employment
of nine other employees because of their activities on behalf of the
Flats; (11) the respondent terminated the employment of Carder
because of his refusal to perform work done by employees then on
strike.
The respondent's answer, as amended, admitted certain allegations
regarding the character of its organization and business but denied
the commission of any unfair labor practices. The answer admitted
that it granted to the Flints exclusive bargaining rights, a closed-
shop and check-off agreement, and that it had discharged Atkinson
and Allman pursuant thereto. It further alleged that employee
Berry left the respondent without giving any reason therefor ; that
Carder was given the option of doing certain work or leaving, and
he thereupon left; that the other employees were laid off because
of lack of work without any reference to their membership or
activity in any labor organization.
Pursuant to notice, a hearing was held in Clarksburg, West Vir-
ginia, from April 15 through May 31, 1940, before Tilford E. Dudley,
the Trial Examiner duly designated by the Chief Trial Examiner.
At the commencement of the hearing, the Federation of Flat Glass
Workers of America filed its motion for leave to intervene in the
proceeding. This motion was granted. The Board, the respondent,
and the intervenor were represented by counsel and participated in
the entire hearing. The G. B. B. A. and the Flints were likewise
represented by counsel and participated in the hearing through April
17 and 18, respectively. Full opportunity to be heard, to examine
3 Now known as Federation of Glass , Ceramic and Silica Sand Workers of America
f1AZEfL-ATLAS GLASSS' COMPANY 349
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties.
On April 17, 1940, all the parties to the proceeding entered into
it stipulation thereafter approved by the Board settling some of the
issues formed by the pleadings herein. By said stipulation, the re-
spondent agreed to reinstate Atkinson and Allman with back pay
totaling $2,250. The parties further agreed that the contract between
the respondent and the Flints should be completely suspended; that
the Board's Regional Director should conduct an election on June 11,
1940, to determine whether a majority of the respondent's employees
at Clarksburg wanted the Flints, the Flats, or no union to represent
them in collective bargaining; that the respondent would recognize
the union, if any, so selected by a majority of its employees. It was
further agreed "that this stipulation is a complete and final settlement
of all charges of violation of the National Labor Relations Act
alleged to have been committed by either the'Company or the Flints
with respect to the contract between them, and also of any and all
complaints and claims in this proceeding by and on behalf of said
Evan L. Atkinson and William V. Allman." The stipulation also
provides that it is not to be used "as a basis for any objection by any
party to any proffered testimony otherwise competent and material
to the issues remaining in the case" and that "neither the Labor
Board nor the Company shall in any way be prejudiced by this
settlement stipulation . . . in the hearing and determination of
the remaining issues in the' case."
During the course of the hearing the Trial Examiner made a
number of rulings on motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. At the close of the hearing, the Trial
Examiner gave the parties opportunity to present oral argument and
to submit briefs. In support of its position the respondent sub-
mitted a brief to the Trial Examiner which has been considered by
the Board.
Thereafter, the Trial Examiner filed his Intermediate Report,
dated November 12, 1940, copies of which were duly served upon all
the parties, finding that the respondent had engaged in and was en-
gaging in unfair labor practices, within the meaning of Section S
(1) and (3) of the Act, and recommending that the respondent
cease and desist from its unfair labor practices, offer full reinstat-
ment to eight named employees 4 and make them whole for loss of
pay resulting from their discriminatory terminations of employment
4 These employees are Carl McClung, Lloyd Phares, Guy Radcliff, James Casto, G. E.
Rogers, William Radcliff , Carl Reed, Jr, and Hairy Carder.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the respondent, and recommending that the complaint be dis-
missed in so far as it alleged discrimination with respect to the ter-
minations of employment of four other named employees.5
On December 23, 1940, the respondent moved the Board to make
part of the record herein the results of a consent election conducted
on June 11, 1940, pursuant to the stipulation above mentioned." The
motion is hereby granted and the results of the election of June 11,
1940, as set forth 'in the margin 7 are, instanter, made part of the
record herein.
On December 23, 1940, the respondent, and on December 26, 1940,
the Flats, filed exceptions to the Intermediate Report and to the
record. On January 8, 1941, the respondent, and on January 11, 1941,
the Flats, submitted briefs in support of their respective positions.
On April 17, 1941, pursuant to notice, a hearing was held before the
Board at Washington, D. C., for the purpose of oral argument. The
respondent and the Flats appeared, presented oral arguments, and
otherwise participated in the hearing. The Board has considered
the exceptions of the respondent and the Flats to the Intermediate
Report and to the record, the briefs and the arguments of the parties
in support of their respective positions, and, except in so far as the
exceptions are consistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT S
The respondent is a West Virginia corporation, with authorized
capital stock of $15,000,000. It owns, either directly or through
subsidiary corporations, glass and mining properties at Mill-Creek,
Oklahoma, and Pittsburgh, California, a metal plant at Wheeling,
West Virginia, and glass manufacturing plants at Washingtol,
Pennsylvania, Grafton and Clarksburg, West Virginia, Ada and
Blackwell, Oklahoma, Lancaster, New York, Oakland, California, and
5 These employees are Thomas Berry, Howard Gaines, Flemie Whytsell , and Francis
Flynn.
s Pursuant also to a "Supplemental" and "Second Supplemental Agreement to Stipulation
of Partial Settlement" amending said stipulation in certain ministerial respects.
4 The election results n ere as follonn s
Total eligible-------------------------------------------------- 1,410
Total valid ballots cast----------------------------------------- 1, 352
Votes for the Flats-------------------------------------------- 480
Votes for the Flints ------------------------------------------- 830
Votes for neither---------------------------------------------- 42
s These findings are based upon a stipulation entered into by the attorneys for the re-
spondent and the Board.
HAZEL-ATLAS GLASS COMPANY 351
Zanesville, Ohio. Its entire sales organization is managed from its
general offices in Wheeling, West Virginia.
The respondent's plant at Clarksburg, West Virginia, is engaged
in the manufacture and decoration of various types of glass con-
tainers, such as glass jars, bottles, jugs, tumblers, tableware, colored
and decorated glassware, food containers, and specialty items. The
principal raw materials used at Clarksburg are sand, soda-ash, and
limestone.
The total amount of raw materials used by the respondent at
Clarksburg in the year 1939 exceeded 61,000 tons in weight and
$500,000 in cost. Approximately 95 per cent of these raw materials
were procured from outside the State of West Virginia and were
shipped from other States into the State of West Virginia.
The total amount of finished products manufactured by the re-
spondent at the Clarksburg plant in the year 1939 exceeded $5,000,000
in value. Over 95 per cent of these finished products were shipped
from Clarksburg to points in States other than West Virginia;
small amounts were shipped to foreign countries.
H. THE LABOR ORGANIZATIONS INVOLVED
The Federation of Flat Glass Workers 9 is a labor organization
affiliated with the Congress of Industrial Organizations. It admits
to membership employees of the respondent.
The American Flint Glass Workers Union of North America is a
labor organization affiliated with the American Federation of Labor.
In April 1937 it obtained a substantial membership among the re-
spondent's employees at Clarksburg. For the skilled workers it
formed Locals 5, 54, and 88; for the unskilled or miscellaneous work-
ers, it formed Branches 565, 566, 567, 568, 569, 570, and 580.
The Glass Bottle Blowers Association of the United States and
Canada is a labor organization affiliated with the American Federa-
tion of Labor. For a brief period in March and April 1937, it had
an extensive membership among the respondent's employees in
Clarksburg, West Virginia.
III. THE UNFAIR LABOR PRACTICES
A. Background
As stated above, the issues regarding the respondent's alleged
assistance on behalf of the G. B. B. A. and the Flints were settled
by a stipulation between the parties. Although no findings will be
made that the respondent thereby violated the Act, a consideration of
° See footnote 3, supra.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these events is helpful in resolving the issues remaining in the case
and findings as to the allegations of illegality of the contract be-
tween the respondent and the Flints will be made in so far as such
findings are material to the unsettled issues remaining in the case 10
1. Early activities of the G. B. B. A.: 1915-1936
The G. B. B. A.'s president and vice president testified that the
G. B. B. A. had attempted to organize the respondent's employees
since 1915. In addition to various visits to the respondent's plants
(but apparently not to the Clarksburg plant) the G. B. B. A.'s
president, Maloney, wrote the respondent's president in 1933 and
several times in 1935 and 1936 in an effort to convince him that
the respondent should withdraw its opposition to the organization
of its employees. Maloney testified : "I never received any reply
to any of my letters, yet I kept hammering away because I know
that men change their minds." However, the G. B. B. A. at no
time directly approached the respondent's employees in Clarksburg
or solocited their membership.
2. Early activities of the Flints : 1925-1935
The Flints began to organize the respondent's mould makers at
its Clarksburg plant in 1925. They met considerable opposition from
the respondent and in 1927 called a strike. They spent about $100,-
000 for the strike, including strike relief and general expenses of
the organizational campaign. During the strike, Elbert, a G. B.
B. A. representative, approached Dawson, then superintendent of
the respondent's Clarksburg plant, about a settlement. Dawson re-
plied : "There will be no settlement in this plant . . . We have laid
aside $168,000 with interest for a good many years for the purpose
of stopping any labor organization that tries to enter our plant .. .
We'll add more to it if necessary . . . We'll spend every cent of
it before we'll let any organization enter this plant." 11
During a further attempt by the Flints in 1934 to organize the
employees, the Flint' s organizer , Harvey Harshman, asked Karl
Weaver, the respondent's superintendent of the Clarksburg plant,
if he objected to his employees belonging to the Flints. Weaver
replied : "Mr. Harshman, the Hazel-Atlas Glass Company has a
policy and that policy is that no labor organization will ever be
10 See Matter of Dain Manufacturing Company and Deere & Company and Farm Equip-
ment Workers Organizing Committee, United Farm Equipment Workers of America, Local
117, C. I. 0, 25 N. L. R B. 821 ; Singer Manufacturing Company Y. National Labor Relations
Board, 119 F. (2d) 131 (C. C. A 7), cert. den, 313 U. S 595, enf'g Matter of Sanger Mango-
facturing Company and United Electmcat, Radio C Machine Workers of America, Local No
917, 24 N. L. R. B. 444.
n This was not controverted, except by a showing that Dawson has since died.
HAZEiL-A'T'LAS GLASS COMPANY 353
recognized." Harshman continued his ' organizing efforts; during
the campaign two employees were discharged. The Flints took their
cases before the National' Labor Relations Board, constituted under
the National Industrial Recovery Act,- which ordered both of them
reinstated. The respondent complied as to one. The other case was
taken into the courts, but the National Industrial Recovery Act was
later declared unconstitutional and the second employee was never
reinstated. Harshman testified these events made his campaign very
difficult, and that he obtained only 75 or 8:; members out of the 1800
or 2000 employees.
3. The Flats continence organizational activities : February 1937
In February 1937 Isaac Lewark was president of Flats Local 6
at the Rolland flat glass plant in Clarksburg. At that time he began
talking to employees of the respondent about joining the Flats.
Around the middle of February 1937, Lewark spoke to the Flats'
national president about organizing the respondent's plant. The
latter soon thereafter sent Lewark some membership application
cards and he proceeded to get a few of them signed. Some of the
respondent's employees took several cards and got other employees
to sign.
In March 1937 the Flats employed several -men in Clarksburg to
assist in organizing the respondent's employees. Carl McWilliams
began such work during the first week in Marchl' James Reed,
Isaac Lewark, and William Ward were also paid for organizational
work during this period of time. Ward commenced his work at
Clarksburg on March 29, 1937.
4. The respondent invites the G. B. B. A. to organize:
March-April 1931
Sometime in March 1937,14 Samuel B. Bowman, the respondent's
general factories manager,15 telephoned James Maloney, president
of the G. B. B. A., and suggested that Maloney come to Zanesville,
Ohio, for an interview. Maloney readily agreed to do so. Bowman
had the authority at, that time to determine the respondent's labor
policy, due to the office which he then held.
"Created under Public Resolution No. 44 ( 73rd Cong., 2nd Sess ) to administer
the provisions of Section 7 (a) of the National Industrial Recovery Act, protecting the
rights of self-organization and collective bargaining . See 48 Stat 1183 , 48 Stat. 195
is Although McWilliams did not testify , this date seems reliably determined by ward's
testimony that he approved an expense voucher for McWilliams for this period.
'* The direct testimony on this date is vague. It is, however , clarified by the well -estab-
lished dates of subsequent events.
15 Bowman has since died and Carnahan has become general factories manager.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This meeting was held on about Friday, March 19, 1937, in Bow-
man's office. Those present for the G. B. B. A. were Maloney and
W. W. Campbell, vice president. Those present for the respondent
were Bowman, John W. Carnahan, general production manager;
Ralph Gorsuch, superintendent of the Zanesville plant No. 1; Karl
Weaver, superintendent of the Clarksburg plant. The conference
convened "around the middle of the morning and broke up in early
afternoon." Bowman wanted to know about unions. He inquired
as to "how they conducted their business and just how they felt
about responsibilities." He also "asked a lot of questions regarding
the G. B. B. A. organization, how they operated, whom they had
contracts with, and the whole time was taken up with various ques-
tions of that character, trying to find out all he could regarding
the personnel of that organization and how it operated." 16
Within the following week a second conference was held in Bow-
man's office . The same people were present, plus some superin-
tendents of various eastern plants of the respondent. Bowman asked
more questions regarding the G. B. B. A. and its jurisdiction. Camp-
bell testified, "They wanted us to explain the procedure of the
closed shop. We did. They wanted information regarding seniority
rights. We explained them. They wanted information as to the
check-off. We explained them."
At this conference admittedly an understanding was reached be-
tween- the respondent and the G. B. B. A. that the former would
withdraw its opposition to union organization and that the G. B. B. A.
would "go out and organize their people" as soon as it could. Bowman
told Maloney that "the management of none of the plants would
thwart the efforts of organization . . . [and] that he would so
inform those plant managers who were not present at that
conference." 17
Within the next few days, i. e. March 27 or 28, 1937, Campbell and
several other executive officers and "lay workers" of the G. B. B. A.
came to Clarksburg to organize the respondent's employees. Campbell
called upon Weaver and "said he was here following out what he
16 Maloney testified he assumed Bowman "sort of looked Mr. Campbell and myself over "
17 Weaver's testimony suggests that the respondent called these meetings and reversed its
labor policy because of the "particularly sore situation which was then flaming on the West
Coast." He testified that the time of the March 19 meeting, "there were rumors at some
of the plants that they had . . . national organizers in amongst the men" and at the Oak-
land, California , plant, "they were threatening a picket line and shutting down the plant.
if the employees there did not Join the G. B. B A." He said that at the time of the second
meeting, "the West Coast representatives of the G. B B. A. were precipitating a situation
there that was quite confusing to the plant there, by the insistence of this picket line."
However, the G. B. B. A. had long been quiescent . Even in 1937 , its activities were con-
fined to the Oakland, California, plant. It did not have a single member at Clarksburg
and had never tried to organize that plant. We, therefore , do not believe it was fear of
the G. B. B. A. that caused the respondent to capitulate.
HAZEL-ATLAS GLASS COMPANY 355
heard Mr. Bowman say in Zanesville" and that the G. B. B. A. was
starting its organization drive at that time. Campbell testified, "the
employees knew that the company was opposed to organization ...
and ... we realized we had to break that down; we realized, too,
that if the company or the plant managers where we were organizing
would make a statement to their employees . . . that it would be a
great help to us and it would leave their employees more at ease."
He, therefore, asked Weaver if he would help in this regard. Weaver
replied, "Sure, and in any way that I can do it legitimately." Camp-
bell also asked Weaver to address some organization meetings he was
going to hold in a day or so for the employees. Weaver consented.
Campbell also inquired as to whether the G. B. B. A. could rent a
nearby hall, known as Fetty's Pool Room, which adjoined Fetty's
Restaurant. This structure was about 100 feet from the entrance to
the respondent's plant. , The respondent had leased it ever since early
in 1936 and-had equipped and used it for employee meetings. The
personnel department had displayed there for the employees a sound
film on venereal diseases. Other employees had used it to rehearse
some amateur theatricals which they later gave at employee parties.
The key to the building was kept at the watchbox in front of the
respondent's plant and arrangements for use of the hall were normally
made through the respondent's personnel office. Weaver granted
Campbell's request. Campbell paid either $5 or $10 as rental for about
a week's time.
On Monday, March 29, 1937, the respondent's general production
manager, Carnahan, came to Clarksburg ; he remained for about 2
days. On March 29, Weaver prepared a notice to the employees in
Clarksburg. He testified it was a result of the Zanesville arrangement
between the respondent and the G. B. B. A. and issued for the purpose
of conveying to the employees' "the gist of what had occurred at the
two conferences." Weaver discussed the notice with Carnahan who
said he "thought it was all right." The notice was issued by Weaver's
office for posting throughout the plant in the same manner as other
official notices. Brady Sims, who was in charge of the personnel
department, received the notice in the course of his duties and began
to post copies at about 12: 15 p. in. that day. He placed them on all
of the respondent's 17 regular bulletin boards, located "in every
department of the plant, usually in a conspicuous place." This notice
read as follows:
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HAZEL-ATLAS GLASS COMPANY
GLAss WARE
KARL WEAVER,
Superintendent.
CLARKSBURG, W. VA., March 29,'1937.
TO OUR EMPLOYEES :
Your Company has always endeavored to recommend to you
the best course to pursue in the light of conditions that existed.
Today we are again asking your 100% cooperation in a step
which we now believe will afford the greatest protection to your
job and to the Company as a whole.
The management for several days has been arranging the
necessary details with the officers and representatives of the
Glass Bottle Blowers Association and the American Flint Glass
Workers' Union.
The representatives of the Glass Bottle Blowers Association
are here and will sign you up for the American Flint Glass
Workers' Union. These two unions and your Company are fully
in accord in this arrangement.
Both of these organizations are affiliated with the American
Federation of Labor and for a number of years have had juris-
diction in most of the glass plants making ware similar to
our own.
The American Flint Glass Workers Union will have jurisdic-
tion in the Mould Shop, including mould cleaners; the Glass
Bottle Blowers Association in all other departments of the Plant.
We know from experience that you employees have had faith
in the decisions of your Company and we are asking you now
to continue that faith by promptly signing up in these organiza-
tions today. Representatives are stationed in the old pool hall
just beyond Fetty's Restaurant. Your foreman will arrange to
send you over to sigii up.
If there are any questions, see your department head or the
writer of this notice. -
This action by the Company is for your best interest in view
of existing conditions.
Please continue your fine cooperation by signing up on your
present shift.
Thank you !
KARL WEAVER,
kw rem Plant Superintendent.
Factories: Washington, Penn.; Wheeling, W. Va.; Clarksburg,
W.Va.; Grafton, W. Va.; Zanesville, Ohio; Blackwell, Okla.;
'HAZEL-ATLAS GLASS COMPANY 357
Ada, Okla. ; Oakland, Calif. ; Lancaster, N. Y. General Offices,
Wheeling, West Virginia.
Weaver also informed V. L. Nelson and J. David Blackwell, man-
agers of the production department of the plant,18 that the G. B. B. A.
was going to organize the plant and that they should see that the
men were afforded relief so they could go to Fetty's Pool Room to
sign up. Pursuant to these instructions and to Weaver's posted
notice, Nelson and Blackwell admittedly did so inform and instruct
the various foremen under them. Extra personnel was accordingly
retained at the plant to give relief (i. e. to act as substitutes) for the
employees when they went outside to Fetty's Pool Room to join the
G. B. B. A. The foremen, in turn, passed the information on to the
employees , both directly and through the relief men.
The testimony is in dispute as to what the various officials told the
employees about the necessity of their joining the G. B. B. A.
Nelson, Blackwell, and the various foremen all testified that the
instructions they received and passed on to those under them were
that the men were being relieved to sign up for the G. B.
B. A., if they so desired. However, the employees' testimony indi-
cates the instructions were not conditioned upon their desires. In
some cases they were merely told they were being relieved to go to the
poolroom to sign up for the union; in other cases they were told by
foremen they were "supposed" to sign, or they "had better sign up,"
or "they want all you fellows . . . to sign up . . . That's orders."
Most of the employees who testified on this point said they were told
by foremen or other officials that they had to sign up; that it was
compulsory if they wanted to continue working at the plant; that
everyone would have to join. About 1800 employees d;d join in the
next few days.
It is unnecessary to determine what specific words were used in
each of the conversations here involved; their import is clear from
the record. The respondent's previous conference at Zanesville, its
notice of March 29, 1937, and the evidence of subsequent events,
hereinafter described, support the employees' testimony in general
and indicate that the respondent told the employees it wanted and
expected them to join the G. B. B. A.; if any of them questioned
this, they were told they had to join. Whether the respondent would
go so far. as to discharge a man who refused to join was never deter-
mined, because of a subsequent change in labor organizations.
"At that time Blackwell was in charge of the production from tanks Nos 1 and 2 ; Nel-
son was in charge of tanks Nos 3 , 4, and 5 However, in July 1937, Nelson was placed in
charge of all the tanks and all production ; he has held this position ever since.
451269-42-vol 34-24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the next few days, around March 30, 31, or April 1, 1940,
Weaver fulfilled his promise to Campbell to address some G. B. B. A.
organizational meetings. He testified this "was again rather follow-
ing up the statement that Mr. Bowman made in the second meeting
at Zanesville." He appeared at two or three meetings, at different
shift times, and spoke for a few minutes at each meeting. In his
speeches he mentioned the Wagner Act and other Federal legislation
which he said gave employees the right to join labor organizations; he
said the respondent had been studying the different organizations
and had come to the conclusion that the G. B. B. A. and the Flints
were the suitable or logical organizations for the employees; that they
had represented employees in the glass container industry for ap-
proximately 50 years; that the respondent had always been interested
in the welfare of the employees; that it believed joining these organi-
zations was in their best interest and it hoped the employees would
cooperate 100 per cent. Weaver then either introduced Campbell
as an official of the G. B. B. A., or turned the meeting over to him and
departed.
5. The respondent assists the Flints to organize : April 1937, et seq.
At about the same time, i. e., on Monday, March 29, 1937, M. J.
Gillooly and William G. Muhleman, president and national repre-
sentative, respectively, of the Flints, conferred in Zanesville, Ohio,
wih Bowman, Carnahan, Greer, and Shipman, who represented the
respondent. Gillooly and Muhleman explained the operation of their
union; they sought recognition for the Flints and establishment of
rules and agreements for mould makers in the respondent's various
shops. The respondent said, "Whenever you have a sufficient number
of men organized, we will talk business." The Flints then claimed
membership at Zanesville, Clarksburg, and Washington, Pennsylva-
nia. Actually they had no more than a nominal number of members
at Clarksburg, and perhaps none.
On Thursday, April 1, 1937, Muhleman and Ross Leidy came to
Clarksburg to organize the mould makers and machinists for the
Flints. Muhleman arranged with the G. B. B. A. representatives
for the use of Fetty's Pool Room on the next evening, April 2. He
also asked Weaver to speak at this meeting and to "explain . . . the
company's policy that they were not going to interfere with organiza-
tion rights in harmony with the Wagner Law." Weaver consented.
Muhleman also telephoned "some of our men here who we knew were
favorable and told them to get the word around that we were going
to set up a local union in Clarksburg" and have a meeting that
Friday night.
HAZEfL-ATLAS GLASS 'COMPANY 359
On April 2, 1937, Harry H. Cook, then the Flints' first vice presi-
dent,19 also arrived in Clarksburg. The general organizational meet-
ing of the mould makers and machinists was held that night. At the
hearing Cook estimated that 80 or 90 workers were present that eve-
ning. Here, as with the G. B. B. A., he told of the Federal legisla-
tion and the employees' rights to join labor organizations; he related
the respondent's interest and investigation and said that the respond-
ent believed the G. B. B. A. and the Flints were the logical organiza-
tions. He said that the Flints represented the mould makers at all
of the plants and would have jurisdiction in Clarksburg over the
mould shop, including mould cleaners. Weaver then turned the
meeting over to Cook and departed. Cook delivered an organiza-
tional address and the men were "given the obligation" that night.20
During this stop-over at Clarksburg, Cook learned that the plant's
principal product was, glass tableware and not glass bottles. He
thereupon formed the opinion that the G. B. B. A. had no jurisdiction
at all in the plant and that the Flints were entitled to the entire plant,
rather than to only the mould shop. He so informed Gillooly, the
Fints' president.21 Gillooly then telephoned G. B. B. A. President
Maloney and claimed jurisdiction of the entire plant. On April
5, Maloney wrote Gillooly; on April 15, Gillooly replied. On
April 19, Gillooly wrote again, suggesting a joint meeting with the
respondent on Saturday, April 24, 1937. This meeting was subse-
quently held in the respondent's office at Zanesville.
In the meantime the organizers for the Flats increased their solici-
tations for members. They distributed application cards in front
of the factory gates to employees leaving and entering at different
shifts. They also sought applicants in the poolrooms, recreation halls,
and other gathering places in Clarksburg. Some employees took
cards into the plant and there sought to secure signed applications
from their fellow workers. Berry testified he thus handed out appli-
cations and the men signed them and returned the cards to him. He
got several cards signed up even before the first meeting.
The Flats arranged for a meeting to be held at the Masonic Temple
in the evening of Wednesday, April 21, 1937. Around the middle of
April, they commenced passing out handbills at the factory gate,
announcing this meeting as a C. I. O. mass meeting, with the president
of the Flats as the principal speaker. These flyers were distributed
openly, while Weaver, Nelson, and other company officials passed in
1e Due to the death of former President Gillooly , Cook has been acting president of the
Flints since April 2, 1940.
20 Muhleman testified he thought there were two meetings that day and, "I would say in
the two meetings there must have been approximately 135'. . . pretty close to 95%" of
all the mould makers and machinists there
21 There is some evidence that Gillooly had received similar information and opinion from
Elbert, another organizer , on March 30, 1937.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and out of the plant. Employee William Radcliff took two or three
of the leaflets inside the factory ; two of them he gave to other em-
ployees; the third he carried back through the packing room and the
mould shop, showing it to the other employees. "I just held it up
in front of them and let them read it," he testified.
Employee McClung joined the Flats about April 16, 1937, and then
helped distribute notices of the Masonic Temple meeting. He gave
one to Foreman Otto Wolfe, who said "that was a good way to lose
your job because the news was going around that they were going to
shut down the plant if they went C. I. 0.1122
Nevertheless, the meeting was held as scheduled. Lewark presided.
Glenn McCabe, president of the Flats, was the principal speaker. He
attacked the G. B. B. A. as a company-dominated union and argued
that the Flats were more progressive and thus more desirable. When
he finished, Arthur Elbert, a representative of the Flints, interrupted
the meeting and asked to speak. After some dispute, permission was
given him and he spoke in favor of the Flints, saying only that they
had jurisdiction of the plant. Application cards for the Flats were
circulated throughout the crowd and about 50 of the respondent's
employees joined that night. Elbert estimated that about 900 people
attended the meeting; an, official of the Masonic Temple estimated
about 125 to 150; other estimates ranged between 150 and 500. The
auditorium's seating capacity was about 450.
Also present at the Masonic Temple meeting were several of the
respondent's supervisory employees, namely : William T. Myers, who
was then an assistant to Nelson and is now assistant production super-
visor; Harry Tate, the foreman over the warehouse; James Anderson,
a foreman over the bottle-making machines in the production depart- .
ment; John Messenger, an assistant foreman in the warehouse depart-
ment; and Clyde Reed, another assistant foreman. None of these
officials took any part in the meeting, except to observe it. Myers
testified curiosity was his only motive for attending the meeting.23
At about this time 24 Grover Earl Rogers, an employee who, as
Weaver put it, "seemed to have this matter of organization very much
on his mind," telephoned Weaver and obtained permission to confer
with him at the latter's residence. The two men discussed labor
unions in general and those organizing the steel and automobile indus-
22 Otto Wolfe denied making such a statement and denied any knowledge of McClung's
distributing any C. I. O. notices or literature at the plant . However, we find, as did the
Trial Examiner who observed the demeanor of the two witnesses , that McClung 's testimony
is true
23 Anderson , Messenger , and Reed did not testify Tate did testify but was not ques-
tioned concerning his attendance at this meeting The presence of these five officials at
the meeting was not controverted by the respondent.
24 Rogers testified it was on or near April 21, 1937, during the time the G. B. B. A. was
at the plant and before the Flints took jurisdiction . Weaver was not certain of the date.
There are some indications that this event took place later. .
HAZEL-ATLAS GLASJ^3 COMPANY 361
tries in particular . They talked about the activities of the C. I. O.
and the sit-down strikes that occurred in the automobile plants.
Weaver expressed strong opposition to sit-down strikes and to "any
group of workers who resorted to means of that character ." He said
the respondent did not want to contend with that in the Clarksburg
plant, and, "We don 't feel that we can work with the C. I. O. For
that reason , we chose this organization to represent the workers of
our plant." They discussed the possibility of the C. I. O. entering the
Clarksburg plant. Weaver said the Company could not work with
the C . I. 0.; that they always acted' first and talked afterwards; and
that he hoped Rogers and the committees would be able to establish
the G . B. B. A. and the Flints at the plant.
A few days later' 2 5 Rogers conferred with Weaver in his office.
Weaver told him, in effect : "If you men will take the organization
of our choice , We will go more than half way with you . In fact, you
will be surprised at the things we will do for you. I don 't hesitate
to tell you , Rogers, that at this time we are putting $211,000 in #2 tank.
If the C. I. O. gets a hold in this plant, work will stop immediately on
that tank and the gates will close and they Will rust off of the hinges
before they open. " Soon thereafter , Rogers and employees John
Leonard and Cecil Johnson conferred with Weaver in his office.
Weaver made approximately the same statement to them a] S0.26
On the following Saturday , April 24, 1937 , the meeting at Zanes-
ville as held between representatives of the respondent , the G . B. B. A.,
and the Flints to settle the jurisdictional dispute. Those present
were Carnahan and Weaver for the respondent ;27 Maloney and Camp-
bell for the G. B. B. A.; and Gillooly for the Flints . Maloney testi-
fied, "I approached the matter as diplomatically as I possibly could
to the representatives of the firm and informed them that the Ameri-
can Flint Glass Workers Union , under the laws and regulations of
the American Federation of Labor, . . . that it was up to them to
organize the employees at Clarksburg." The respondent 's officials
accepted this announcement as final. As Campbell testified , "An un-
derstanding was reached that the Clarksburg plant in all essentials was
a Flint factory and everyone who worked here should belong to the
Flint organization and that they had jurisdiction over it." Gillooly
announced he would come promptly to Clarksburg with organizers
for the Flints.
^ The same uncertainty as to time applies also to this incident
"In his testimony about these (onveisations, Weaver denied saying that the respondent
could not work with the C . I. O. and that if the C. I . 0 got a hold in the plant it would
close the gates He admitted the rest of the con(ersations, however , and said he mentioned
closing the gates only in connection with denionstiations by any union Weaver ' s testi-
mony , consideied in the light of his notice to emploi ecs posted on March 29, 1937, convinces
us, as it did the Trial Examiner , that he expressed preference foe the ( 7 B B A and Flints
and opposition toward the Flats I
"Bowman was then in the hospital and died shortly thereatter
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At, noon' that day, Weaver telephoned to Nelson in Clarksburg.
They discussed some production matters and Weaver "told him then
of what Mr. Gillooly had told Mr. Carnahan and myself that morn-
ing." Thereupon Nelson went to Rogers in the factory and told him
that on the following Monday Gillooly would be in Clarksburg to
organize the employees of the plant; "that the boys didn't seem to
like the G. B. B. A. any" and "it didn't sound so good to him ;" that
he thought the Flints "would be more satisfactory." He said, "I
want you to tell all the men that Mr. Gillooly will be here and will
take over the plant, and that we will have a good union." 28 Rogers
replied that he could not leave his work; Nelson said he would see
about that.
Later in the day Foreman William D. Blackwell instructed his
relief boy, Alva Hamilton, to relive Rogers.29 As Hamilton walked
toward Rogers, he was preceded by Nelson, who also went to Rogers,
put 'his hand on the latter's shoulder, and said, "Earl, the C. I. 0.
is about to come in here. You go around and talk American Flint to
the boys and tell them if the C. I. 0. comes in here, we will shut her
down ; and don't miss a man." 3 ° Rogers thereupon contacted every
man working on that shift in the production department and delivered
to them Nelson's message. He then reported to Nelson that he had
carried out Nelson's instructions. Rogers was away from his work
most of that shift but no deduction was made from his pay. In fact,
no notation was ever made on his time card to show his absence from
duty.
^ Nelson testified , "I made no such statement to Mr. Rogers . I did make this state-
ment to him . . . shortly after I talked to Mr. Weaver on April 24th, and that was to the
effect just what Mr. Weaver told me, that the G B. B. A. had ceded jurisdictional rights
to the American Flint Glass Workers Union for the Clarksburg plant. I told Rogers to
notify the committee to that effect . . . He was a member of the committe that had been
formulated I do not know whether it was 566 at that time or not but I do know that he was
a member of the committee of the boys and I 'told him to notify his committee ." Giving
weight to the demeanor of the w itnesses , the Trial Examiner credited Rogers' version of the
conversation , as do we.
29 Blackwell denied this . The Trial Examiner did not credit his denial "in view of all the
circumstances" ; nor do we.
30 Nelson denied this, saying that after he told Rogers to notify the committee about the
Flints, he left the plant for the afternoon . However , Rogers ' testimony was corroborated
by Hamilton. The latter had since left the respondent's employ and moved to another
town where he was working for an unrelated concern , and where he had lived for,about one
and a half years before the hearing . Although he was named in the charge , he testified
under subpena. At the time of this incident he belonged to no union . Later he joined
both the Flints and the Flats but his testimony indicates he did not attend meetings of the
Flats and never learned much about either of the labor organizations. He thus appears to
be a disinterested witness, and the above finding, which accords with that of the Trial
Examiner , is based primarily on his testimony Rogers testified to the same effect, that
Nelson told him: "I want you to go out in this plant and tell every man that the American
Flint Glass Workers Union is coining in here next week to take this plant over and we
'expect every man to join up with that organization , and if the C. I. O. gets in here, the
gates of this plant will close and they will rust off the hinges before they will open "
HAZEL-ATLAS GLASS COMPANY 363
The next day, Sunday, April 25, the Flats held a mass meeting for
the respondent's employees in the Carmichael Auditorium. The meet-
ing was advertised by radio announcements. However, it was a very
rainy night and the attendance was small, consisting of only slightly
over 100 people. McCabe, president of the Flats, gave the principal
address, and about 50 employees signed up for membership in the
Flats.
Also in attendance at this meeting were Nelson, Brady Sims, who
was in charge of the respondent's personnel department, and Gordon
Brown, a watchman for the respondent.31 They had met each other
under an awning on a street corner, half a block from the auditorium,
and walked together to the hall. They stood at the entrance, which
was at the back of the auditorium and from which they could observe
the men in attendance. They testified there were about 15 people
present when they were there. Soon after they arrived, employee
Berry saw them and reported their presence to McWilliams, a Flats
organizer, who requested them to leave. They did so.
Brown testified he was on his way uptown that night and hap-
pened to meet Nelson and Sims under the awning; that "there was a
good many others passing by who had stopped there and were going
around towards Carmichael and somebody had mentioned . . . that
there was a meeting of the Hazel-Atlas employees"; that he men-
tioned it to Nelson and Sims and so they walked down to see what
it was. Sims' testified he was going to the drug store to get some
medicine for his mother when he met Brown on the corner; Nelson
then joined them; someone mentioned the meeting and so they went
down the street to the hall. Nelson testified he was on the way to a
movie when he met Brown and Sims; that someone then mentioned
the meeting and suggested they attend; that he then went "out of
curiosity more than anything else." However, these explanations do
not seem plausible. That a manager of production, a director of
personnel, and a company watchman -all merely chanced to meet on
a rainy Sunday night at the same street corner and underneath the
same awning seems unreasonable. Testimony that their attention was
drawn by "a good many others passing by" to the Carmichael meet-
ing seems inconsistent with their testimony that there were only about
15 people at the meeting. That they departed from their individual
projects for the evening and followed these employees through the
rain to the auditorium, merely because of their curiosity and because
they too were Hazel-Atlas employees did not seem credible to the
' Employee Flynn testified that, in addition to Sims and Nelson, Foremen Harry Huff
and Harry Melvin and watchman Van Scoy were present at the meeting . However, this
was denied by Huff, Melvin , Van Scoy, Nelson , and Sims. From his observation of the
witnesses and study of the testimony , the Trial Examiner accepted , as do we, the denials
as being true.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner, nor does it to us. We I elieve and hereby find that
Nelson, Sims, and Brown met by prearrangement for the purpose of
attending the meeting of the Flats and observing those present and
the activity there undertaken and that they followed this plant until
asked to depart from the auditorium by the Flats organizer.
On Monday, April 26, Rogers worked during the morning shift
from 6: 00 a. in. until 12: 00 noon. During this shift, Nelson told
him that Gillooly had arrived in Clarksburg and could be seen that
afternoon at the Stonewall Jackson Hotel.32 Accordingly, Rogers
conferred with Gillooly that afternoon. They arranged to have a
mass meeting that night. Rogers thereupon rented Fraternal Hall
and secured chairs for the occasion.13 Other workers notified the
employees thereof.
Fraternal Hall was packed that night with the respondent's em-
ployees. On the platform were Campbell, Gillooly, Harvey Harsh-
man, and perhaps employee Stark. Campbell spoke first, saying that
the G. B. B. A. had organized all the respondent's plants but that
they now realized the Flints properly had jurisdiction of the Clarks-
burg plant and that the G. B. B. A. was therefore ceding jurisdiction
to the Flints and hoped the employees would give Gillooly "the same,
cooperation and same courteous treatment that you have given us."
Campbell closed by saying : "Mr. Gillooly, I hereby hand you a big
baby . . . You will have to nurse it." When he finished, employee
Atkinson asked what right he had to take over these employees.
Gillooly replied : "Because there is no protest being made." Atkinson
then protested ; others noisily joined him. A preacher tried to restore
order by praying. As he concluded, employee William Radcliff
shouted out : "Give us our freedom. We want the C. I. 0." There
was then more turmoil and the meeting finally dissolved. The Flats
circulated membership cards among the crowd and got about 10 more
signed applications that night. This brought the total of Flat mem-
berships to approximately 110. - The Flints secured their first signed
applications that day and reached a total of 10 memberships by the
end of the day.
After the meeting the leaders of the Flints retired to the Waldo
Hotel in Clarksburg and discussed the progress of their organiza-
tional campaign. They were discouraged. Gillooly said : "We might
just as well go back to Toledo in the morning and let it go because
"Nelson denied this conversation However, In view of the conversations the preceding
Saturday afternoon , his attendance at the Flats meeting , and the subsequent events, herein.
after set forth , the Trial Examiner did not credit his denial , nor do NNe
34 On cross-examination Rogers became confused as to the dates of this activity He also
testified incorrectly as to the date of the Masonic Temple meeting and the date of his
Saturday afternoon conferences with Nelson. Iiowwever , confusion as to dates does not in
itself destroy the value of his testimony on other points
HAZEL-ATLAS GLASS COMPANY 365
it's plain to be seen that the men want the CIO." 34 However, the
group finally decided to post notices at the plant and try to hold
another meeting of employees on the following night. Harshman
and Rogers then went to Harshman's hotel room, Where Harshman
typed "a lot of notices" for the meeting. These two men then went
from Harshman's room to the respondent's plant. They arrived
shortly before midnight.
Howard W. Van Scoy was the, watchman on duty at the factory
gate at that time. Rogers told Van Scoy he wanted to go inside the
plant to post the notices of the Flint meeting. Van Scoy replied
that it was "perfectly all right, go ahead; I have been instructed
to let you into the plant during this organization campaign at any
time." 3b Harshman and Rogers then went inside the plant and
Rogers posted the notices on the various company bulletin boards.
The next day, Tuesday,,April 27, Rogers and others spread among
the employees the notice of the meeting for that night.36 During the
day, Nelson came to Rogers and told him : "You don't have to worry
about your meeting being broken up tonight. There will be some-
body there to see that it isn't," "to prevent the C. I. O. from
interfering." 3T
Also during the day employee Wlckenhoffer told employee Kidd
that Nelson had said he wanted Wickenhoffer and Kidd to come to
the meeting that night. These two met early that evening in a pool-
room, had some beer and then went to the Central Junior High School,
where the Flint meeting was scheduled to be held 38 There they met
14 This finding is based on Rogeis ' testimony , which was not denied , although Flint offi-
cials present at the conference were mailable as witnesses at the bearing
35
Van Scoy denied making this statement. He said he did not remember whether or not
Rogers went into the plant that night, because "the ordinary employees I could not remem-
ber back that far " He also, testified that he did not remember Harshman coming to the
plant, but that he believed he would have remembered him if he had come : "A stranger
I usually would remember ." Harshman himself testified he did go out to the plant that
night and that he remembered going " into the plant" and waiting "on the inside of the fac-
tory" for Rogers to return fiom posting the notices Harshman 's testimony on this entire
incident was given very reluctantly and was against his own interest ; Van Scoy's testimony
was in accord with his interest . We therefore credit Harshman , as did the Trial Examiner.
The finding that Van Scoy said he had been instructed to let Rogers into the plant is based
on his own testimony that be would not have let Harshman go through the gates "without
permission from someone
35 Rogers testified that on this day he and others circulated through the plant getting ap-
plications for membership in the Flints and that they got about 700 applications However,
the Flints ' records show that only 42 applications were obtained that dav; that 780 appli-
cations were obtained the following day It is therefore believed that Rogers got his dates
wrong again and that he did not engage in soliciting applications on Tuesday, April 27.
"Although Nelson denied this, his denial was not credited by the Trial Examiner because
of the other events of that day and evening We do not credit it.
38 This finding rests upon testimony by Ernest F Kidd ; some of the subsequent findings
will be based similarly upon his testimony , either in whole or in part His testimony was
inaccurate in some respects , such as the contents and size of the Flints ' application blank.
However, he was also a disinterested witness . He testified • "I didn 't care anything about
.. . the organization , the union , or anything else; all I was after was a good job and I
got it, until after the organization got in there good." The Trial Examiner commented
that Kidd ' s manner on the stand was one of utter unconcern ; his testimony was given
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Production Managers Nelson and Dave Blackwell and company watch-
men Brown and Virgie. These men, together with Personnel Director
Sims and a few others, lingered outside the meeting hall. Only Virgie
and Brown attended the meeting.
The Central Junior High School auditorium was filled that night
with employees of the respondent. Gillooly gave the principal ad-
dress, but other Flint officials and employees Stark and Haddock also
spoke. Application cards were circulated among the crowd and 42
men signed up. That brought the Flint applications up to a total of
52. There was no disorder in the meeting. In fact, Stark announced
"that if anyone staged any demonstrations or said or done anything
with -reference to any other organization, that they would go out and
stay out; they would be throwed out." A group of employees, includ-
ing watchman Virgie and production employee Guy Radcliff, was
apparently kept in readiness for this purpose.
Recognized C. I. O. men were at first kept out of the hall by the
watchmen, but they appealed to the sheriff and were finally permitted
to enter. Outside the building, however, men with C. I. O. cards in
their hands were kept away. When a C. I. O. man would approach the
doorway, company watchman Charles Windsor would say to Kidd,
Wickenhoffer, et al : "We do not want no trouble in here, and don't let
him fool around here ... He is a nuisance here." These employees
would then ask the C. I. O. man to leave and he usually did so. Ike
Lewark, however, "was in and out all evening." Finally Nelson said
he would like to have Lewark "taken care of." Kidd and Wicken-
hoffer thereupon put on a wrestling match. Kidd testified : "We were
wrestling up and down, acting the fool, and trying to draw attention."
Lewark was then slugged by an unidentified assailant.
Nelson testified he went down to the Central Junior High School
that night and talked to the sheriff for 20 or 25 minutes just as "another
curiosity trip." Sims testified that he was not at the meeting but merely
across the :,treet "talking to a gentleman from North View"; that
he had been uptown and heard about the meeting; "that there was
quite a number of folks going up Pike Street and I just fell in and
went over." Brown testified, "Everybody else seemed to be going so
I went too." David Blackwell testified his son had told him about
the meeting; that he walked downtown and "stood there a little while
and just decided to go up (to the meeting) through curiosity." 39
without any apparent regard for its effect upon himself or any of the parties He resigned
from the respondent's employ on March 29, 1938, and at the time of the hearing was sell-
ing automobiles in some distant city. His testimony will therefore be credited, insofar as
it is consistent with the balance of the credible evidence The direct examination of Kidd
contained numerous leading questions, which detract from its value Reliance is therefore
placed primarily upon the testimony elicited by the respondent's cross-examination.
3P Kidd testified he saw weaver outside the High School that night. However, weaver
denied it. No other witness saw weaver that night. His denial is credited in this
instance.
HAZEL-ATLAS GLASFa COMPANY 367
However, the explanations by these officials of their presence on
this Tuesday night outside the Flints' meeting seem as implausible
as the explanations they offered for attending the Flats' meeting the
preceding Sunday night. We do not believe it was mere chance or
mere curiosity that led these men to linger outside the High School
building Tuesday night. Instead we find that they were there with the
intention of "protecting" the Flints from the Flats and doing what
they could to see that the Flints had a successful meeting.
The next day, Wednesday, April 28, 1937, was the Flints' big organ-
ization day. They -secured 780 applications for membership, raising
their total from 52 to 832. This was accomplished through solicitation
by foremen and by various employees who were free to circulate
through the plant contacting the employees at will. The respondent's
support of the Flints and its opposition to the C. 1. 0. was made clear to
the employees, who thus signed up by the hundreds in that one day.40
Shortly before noon on that same day, Gillooly telephoned Weaver
and asked if he and a committee could call on Weaver that afternoon.
Weaver consented. At about 2: 00 p. in. Rogers drove Gillooly and
Harshman to the plant. There they assembled about 25 employees
who had been called "by telephone, by direct message, and by going
out into the plant and getting them from the machines where they
worked." These men "were the business officers of the various branches
and locals" that had been set up in the plant by the G. B. B. A. and
inherited by the Flints. Once assembled, they met with Weaver in
his office.
Weaver testified : "They told me that they had been working on
this matter of signing the employees up for the American Flint Glass
Workers Union, and that they had more than a majority of-the em-
ployees. I think that probably Mr. Gillooly said something about 1,800
signed applications .. 41 Upon Mr. Gillooly's request that some sort
of notice be posted so that the employees at large would know of this
agreement, I ... dictated this letter or notice." The letter was then
signed by Weaver, Gillooly, and the other men present .41 Typewritten
copies of the letter were posted that afternoon on the company bulletin
boards throughout the plant.
40 The respondent's supervisory officials generally testified in denial of this finding. The
Trial Examiner did not credit such denials . The admitted fact that 780 applications were
signed in that one day belies the denials. Furthermore , Foreman Carder testified he was
instructed by, Nelson to circulate Flint applications and that he did so and procured
signatures from all but two of his employees . His testimony later given regarding employee
Berry indicates that Carder was testifying honestly even though his own discharge was
within the scope of the hearing. The finding is further supported by the detailed testimony
of Rogers , whose evidence has been generally found to be correct except for dates, and by
the disinterested testimony of Kidd
41 Gillooly 's statement was false . He had a total of only 52 signed applications the night
before and obtained 780 more during that day. Even if all those were in ( which is doubt-
ful), he could not have had more than 832, or less than a majority of the more than 1,800
employees.
42 Elbert signed later at his hotel.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The letter so prepared , signed, and posted , read as follows :
HAZEL-ATLAS GLASS COMPANY
GLAss WARE
Clarksburg, W. Va.
APRIL 28, 1937.
KARL WEAVER,
Superintendent.
MR. M. J. GILLOOLY,
President, American Flint Glass Workers Union,
Clarksburg, West Virginia
DEAR MR. GILLOOLY : Confirming conversation of today with you
and elected 'employee representatives-the American Flint Glass
Workers Union is recognized as the sole Bargaining Agency
for all employees of the Clarksburg Plant of the Hazel-Atlas
Glass Company.
It is further understood that on May 10-the Company will
enter into negotiations with you and the Committees of the
various departments concerning agreements formulated for the
various departments of this Plant.
KARL WEAVER,
kw rem Plant S&.cperintendent.
Cook, the Flints' acting president, testified : "it is generally under-
stood that when the American Flint Glass Workers Union is accepted
as the bargaining representative for the workers, that it does carry
with it the closed shop. We have no open shops." The Flint offi-
cials considered the recognition of April 28, 1940, as including agree-
ments for the closed shop and for a check-off of union dues. Although
the closed-shop and check-off agreements were not put into effect
immediately, their inevitability was used as a means of obtaining
more members from among the employees.
Thus, after employee Casto had refused to sign a Flint card for
a fellow employee, he was told by his foreman, Joseph H. McIntyre,
that he had to sign it if he wanted to work there. Casto then signed.`,
Likewise employee Rogers told McClung, in front of Production
Managers Nelson and Blackwell, that he had to sign a Flint card; that
"it was orders from Mr. Weaver that we had to sign those cards."
43 McIntyre denied this but in view of the circumstances we do not accept, nor did the
Trial Examiner, Mcintyre's denial.
HAZEL-ATLAS GLASS COMPANY 369
The Flints' records show that they procured several hundred signed
applications on each of the next 3 days, after which the results of
the campaign began to decrease. For this entire period, the number
of applications so obtained, on-each of the various days, is as follows :
April 26------------------- 10 May 4--------------------- 10
April 27------------------- 42 May 5--------------------- 12
April 28------------------- 780 May 6--------------------- 5
April 29------------------- 260
1 7
Undated cards------------- 487
April 30------------------- 4
May 1--------------------- 116 Total number of cards
May 2--------------------- 2 obtained--------- 1,887
May 3--------------------- 16
On May 20, 1937, representatives of the respondent and the Flints
met in the Stonewall Jackson Hotel at Clarksburg for the purpose
of making an agreement affecting the Clarksburg plant. Present for
the respondent were Carnahan, Weaver, Nelson, and department
heads and, supervisory officials of the various departments in the
plant. Present for the Flints were Gillooly, Harshman, and approxi-
mately 100 Flint, members from the different departments in the
plant. Gillooly presided over the meeting.
Gillooly announced that the respondent had already told him it
would not grant any blanket increase in wages at that time and
called upon Weaver to explain his position. Weaver mentioned the
size, of the respondent's business and the large number of its em-
ployees whose wages would be changed by any blanket raise. He
said that on the preceding March 14, the respondent had put a 5-
cent raise into effect; that its wages then exceeded those paid by
plants of a similar kind ; that its competitors were using the Flints'
miscellaneous national agreement as a basis of their operations and
the respondent would do the same. Weaver, however, then offered
to accept the rules for the miscellaneous workers previously agreed
to between the Flints and The National Association of Manufac-
turers of Pressed and Blown Glassware, as modified by a clarifying
appendix and by an amendment adding provisions regarding over-
time. These two supplements had been drafted by Weaver and copies
thereof had been prepared in advance by his office for submission to
the conference.
There was considerable discussion of the rules, of the Star Island
Agreement which is a part thereof, and of seniority which is dis-
cussed hereinafter. Then the respondent's officials withdrew tem-
porarily from the,meeting and the Flints discussed the proposal
among themselves. All favored acceptance of Weaver's offer except
one employee who finally admitted he favored a C. I. O. agreement
instead of a Flint agreement. A motion to accept the offer was
passed. - The respondent's officials were called back into the meeting
and told that the Flints-had and did thereby accept Weaver's pro-
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posal for the adoption of the national rules plus the supplements
thereto.
At the beginning of the work-shifts for the following week, com-
mencing on May 23, 1937, the respondent put into effect its agreement
for the • check-off of dues to the Flints' organization. These dues
were deducted from the pay rolls of June 5, 1937, and from the
subsequent pay rolls. .
In the meantime solicitation of applications for the Flints con-
tinued on the basis of the approaching closed shop and with the
assistance of the respondent's foremen. Thus, during the latter part
of April and early part of May, in the shipping department, em-
ployee Stark told employee Collins the Flints had a closed shop and
"all that didn't sign up was going to be put out." The Flints' ap-
plications were collected by Foreman Harry Tate, employee Stark,
and others, and were kept in a table or desk used by the foremen in
the office ; there the applications were checked over by the foremen
and Flint officials 44 In the production department, Foreman Otto
Wolfe told employee Reed that he "had better join the Flints" and
also joined employees Rogers, Queen, and Cain in telling Reed that if
his Flint application was not in by the following midnight, his
card would be pulled.45 Reed thereupon signed up.
On about May 29, employee Charles Lowther, Sr., asked employee
Lloyd Phares to join the Flints, saying: "We have got a closed shop,
Lloyd, and if you want to work here you better sign up." Phares
argued with Lowther but finally signed up. Lowther advanced the
same argument to employee Whytsell at about the same time and got
the same result. Lowther and Van Scoy got an application from
Gaines on the same basis, i. e., "It is either sign one or get out."
Van Scoy and Leesburg were similarly successful in getting au-
thority to turn in William Radcliff's application.
6. The respondent forecloses the Flats : June 1937
On June 14, 1937,46 William Ward telephoned Weaver at the
plant and said that he was the international representative of the
" Tate denied ever keeping any Flint cards or ever handling any Flint applications.
However, his denial at the time did not appear genuine to the Trial Examiner . It is also
inconsistent with the surrounding circumstances of Flint growth and company assistance,
and we reject it.
,s Wolfe denied making such statements . Since the closed shop was in existence and
since Wolfe 's statement was accurate regarding its enforcement , although not the date
thereof, we believe and find in accord with the Trial Examiner that he did speak to Reed
substantially as reported.
46 Ward testified this conversation took place the latter part of April or the first of May.
However, Weaver made some notations at the time of their talk which indicate the above
date. Although there is a difference in the handwriting on the memoranda , nevertheless
they and Weaver's testimony are believed to be more accurate in this respect than Ward's
memory.
HAZEL-ATLAS GLA'SIS COMPANY 371
Flats; that he had in his possession 928 Flats membership applica-
tions signed by the respondent's employees; that he wanted a con-
ference in which to discuss the Flats' claim that it represented a
majority of the respondent's workers at 'Clarksburg. Weaver re-
plied that the Flints "had flashed some 1,800 or 1,900 application
cards on him"; that he had signed a closed-shop agreement with
them; that he believed the Flints' president, Gillooly, was the proper
person for Ward to interview, if he had any questions. After this
conversation, the Flats did not present any claim of representation
to the respondent until April 6, 1940.
On the night of July 21, 1937, the operators' local of the Flints
served notice on Nelson that the Flints operators would not work un-
less the closed shop was enforced and all operators were compelled
to join the Flints or leave their jobs. Nelson telephoned to Weaver,
who was then in New York City. Weaver told Nelson to concede
to the Flints and he did so. Because of this closed-shop agreement,
the respondent discharged Evan L. Atkinson and Lanham Hickman
on July 22 and William V. Allman on August 9, 1937. The closed-
shop agreement and the check-off of the Flints' dues were thereafter
enforced until suspended by the partial stipulation entered into at
the hearing between the parties in this proceeding. We find that this
agreement, made, as appears above, with the company-assisted Flints
whose membership was to a substantial extent enlisted with the aid
of the respondent,47 does not fall within the proviso to Section 8 (3)
of the Act.48 It is apparent that acts performed by the authority of
a contract executed under the circumstances disclosed cannot be as-
serted to the prejudice of rights guaranteed under the Act. Thus
we do not deem material to our consideration of the respondent's
alleged acts of discrimination 49 the indecisive effort made by the
respondent and the Flints to settle certain of the alleged discrimina-
tory terminations at a conference held pursuant to the provisions of
the contract."
7. Conclusions with respect to background
From the incidents related above it seems clear that, because of the
Flats' organizational drive in the glass industry, the respondent in-
47 Cf. Matter of National Electric Products Corporation and United Electrical and Radio
Workers of America, Local No. 609, 3 N. L . R. B. 475; Matter of Cudahy Packing Company
and Local Union No. 60 , United Packinghouse Workers of America, Packinghouse Workers
Organization Committee, affiliated with C. I. O. and Omaha Cudahy Plant Workers' Organ-
izing Union, party to the contract, 29 N. L R. B 837
48 Nor in the proceedings had herein was the closed -shop contract asserted by the respond-
ent in defense to the alleged discriminatory terminations of employment , and the Flints did
not assert that membership in or activity on behalf of the Flats was inconsistent with
membership in good standing in the Flints.
49 See Section III, C, infra.
50 See footnote 2, supra.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vited the G. B. B. A. into its plants and then enlisted its employees at
Clarksburg in that organization in order to keep them out of the
Flats,. without any regard whatever for the wishes the employees
themselves may have had: When the G. B. B. A. transferred juris-
diction over the Clarksburg plant to the Flints, the respondent like-
wise transferred its assistance and saw to it that its employees
transferred their affiliations accordingly. The respondent cemented
the Flints' position in the plant by assisting in its meetings, by having
its supervisors participate in and assist in the solicitation of Flints'
memberships on company time, by granting exclusive recognition to
the Flints when even company pressure had produced membership
applications from less than a majority of its employees,51 by granting
a check-off of Flints' dues, and by threatening and finally enforcing
a closed-shop agreement, which was never formally made or reduced
to writing.
We believe that the respondent selected the long dormant G. B. B. A.
on the theory that its presence would be a sufficient concession to pre-
vent active unionization of its employees. It 'then accepted and
assisted the Flints, believing even that organization would be pref-
erable to the more militant Flats. Such action indicates that the
respondent has not abandoned its anti-union policy, but has instead
continued it in the altered form of encouraging such unions as it hopes
to control or keep ineffective. Conversely, such action indicates the
respondent's hostility not only to the Flats, and to those employees
who became active on behalf of the Flats, but also to employees who
promoted militant activity by the Flints. Such policy will be borne
in mind in the subsequent consideration of the issues in this proceeding.
The record regarding the chronicled events has another important
bearing on the issues at hand, in that it reflects on the credibility of
the witnesses. The respondent's officials and supervisors testified in
general against the findings noted above.5' They denied giving any
preference or assistance to the G. B. B. A. or the Flints (except such
assistance as was given by the exclusive recognition of the Flints).
They also denied, in general, any knowledge of the Flats" activity
at the plant. Yet such assistance and knowledge are clearly established
by overwhelming evidence-both oral and documentary. The record
plainly reveals that the respondent engaged in ,the above-described
anti-union campaign in 1937. It therefore appears that the testimony
given by several of the witnesses for the respondent was false. We
shall consider, as did the Trial Examiner, such deficiencies in, the
evaluation of conflicting testimony bearing upon the issues hereinafter
discussed.
51 See footnote 41, supra.
52 The more specific denials have been noted in the preceding footnotes.
HAZEL-ATLAS GLASS COMPANY 373
B. Interference, restraint, and coercion
It has been found above that at some, time just before April 21,
1937, Foreman Otto Wolfe told McClung that to distribute C. I. O.
literature was a good way to lose his job "because the news was going
around that they were going to shut down the plant if they went
CIO." It has also been found that on April 21, Myers, Tate, Anderson,
Messenger, and Reed-all supervisory officials-attended a Flats meet-
ing in the Masonic Temple, without invitation. It has also been found
that at about this time Weaver told Rogers that the respondent could
not work with the C. I. 0.; that a few days later he told Rogers and a
committee : "If the CIO gets a hold in this plant, work will stop imme-
diately on that tank and the gates will close and they will rust off
of the hinges before they open." It has been found that Nelson, on
April 24, said to Rogers : "You go around and talk American Flint
to the boys and tell them if the CIO comes in here, we will shut her
down; and don't miss a man." It has also been found that on April
25, 1937, Nelson and Sims, both company officials, attended without
invitation another meeting of the Flats, held in the Carmichael
Auditorium.
Also in April 1937, employees Collins and Posey were talking in
the warehouse about the C. I. O. Foreman Harmer C. Day said to
them : "You fellows better cut that stuff out . . . It only causes
trouble." A few days later these same men were again talking about
the C. I. O. in the warehouse when Foreman Day again approached
them. This time he said: "If you fellows don't quit talking
union, . . . I have orders to discharge you." 53
Russell Rymer joined the Flats when they first organized in the
spring of 1937. He maintained his membership therein and resisted
the pressure for joining the Flints until the respondent made the
closed-shop agreement effective. He and Robert Means were the
direct cause of the Flints' strike called on July 21 and were discharged
at that time for their refusal to join the Flints. During the first part
of that month, on about July 2 or 3, Guy Radcliff and Harshman were
conferring with Nelson on behalf of the Flints when Nelson said to
them : "You better tell Russell Rymer to cease his CIO activities, or,
by God, I am going to fire him. I am not going to stand for it." 54
53 Day denied making these statements However, his denials are not credited because
of two reasons: (1) his testimony lacked candor, as is shown by a comparison of his re-
marks about the use of seniority with those of his superior, Huff; (2) his demeanor on the
witness stand, particularly his uneasiness, caused the Trial Examiner to believe him an
unreliable witness.
64 Nelson denied making this statement, and volunteered that he would not have made
such a remark and then interceded for Rymer when the strike was called However, the
record indicates Nelson's efforts were directed more to keeping the plant open than to keep-
451269-42-vol. 34-25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October or November 1937, Weaver met employee Collins near
the canteen in the factory. Weaver called to Collins and began a con-
versation about conditions in the plant. Toward the end of the dis-
cussion Weaver told Collins that there seemed to be a minority at the
plant who did not like either him (Weaver) or the respondent, and
that he could not understand why Collins and this minority, (the
Flats) who were so thoroughly disgusted with their employer over an
extended period of time, did not seek another employer who would
provide conditions more to their liking.
On December 12, 1939, the Flints commenced a strike at the re-
spondent's plant; it was settled the night of December 15. After
the settlement, Collins drove to the picket line and there addressed
the assembled workers, saying that they had been mistreated by the
Flints and should join the Flats. Present in the crowd was I. H.
Strider, a member of the respondent's engineering staff who per-
formed special assignments under Weaver's direction. In about
October 1937, Strider was one of two officials who represented the
respondent in a conference with the Flints. He was clearly part of
the respondent's managerial staff and we so find. When Collins fin-
ished speaking, he circulated through the crowd. Some of the em-
ployees asked him whether the plant would shut down if they con-
tinued their strike. Collins replied : "No, they won't shut it down."
Strider then spoke up and said that Weirton had shut down, referring
to a Clarksburg plant of the Weirton Steel Company which had been
closed and abandoned. Collins retorted that Weirton had not shut
down because of union activities and that he thought Strider should
clarify his statement. Strider, however, refused to do so, saying
merely that the fact remained that the Weirton plant had shut down
and still was shut down.55
By the above acts, the respondent, acting through its various
supervisory officials, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act.
lug Rymer at work. Rymer testified he signed a card for the Flats and took the oath, "but
that was all." This would seem to indicate little C. 1 0 activity by him. However, as
late as December 1939, when Rymer was president of Flints Local 88, the Flints ' interna-
tional president considered him a C. I. O. man and referred to the trouble the Flints had
had with him in July 1937 From this it appears that Rymer openly and notoriously op-
posed the Flints and favored the C. I. O. in July 1937 and was thus , as found by the Trial
Examiner, the logical object of Nelson 's remarks
66 Strider testified : "I told him my statement had nothing whatsoever to do with union
activity, and that the fact remained that the plant had shut down and still was shut
down ." However, since there would be no point in making and reiterating the statement
unless it had something to do with union activity, we, like the Trial Examiner, do not
believe Strider denied that cpnnectipn,
HAZEL-ATLAS GLASS COMPANY 375
C. Discrimination in regard to tenure of employment
1. The respondent's seniority policy
Minutes of the meeting held on May 20, 1937, in the Stonewall
Jackson Hotel were kept for the Flints by Harshman. These min-
utes recite, inter alia : "He (Weaver) stated that he agreed to Senior-
ity rules for all departments." Rogers also testified that Weaver
stated he "accepted the seniority in all departments." Guy Radcliff
testified that Weaver said, in response to questions from Gillooly :
"I recognize seniority in the Hazel-Atlas plant, in all departments."
However, Weaver denied he made that statement and was corrobo-
rated in this respect by Carnahan, Nelson, and Sims. It further
appeared that Gillooly had said he did not remember any agreement
on seniority being made at this meeting.56
However, it is clear that seniority was discussed. All the wit-
nesses admitted this. Gillooly and others asked Weaver his position
on seniority. Weaver testified : "I told the people that I had not
. . . been able to arrive at any definition of that term where I
thought that it was applicable in a measure to be satisfactory to all
concerned. I even read seniority clauses from other contracts, and
I told them that as a matter of straight seniority I was unalterably
opposed to it, and the basis on which this plant would operate would
be length of service, plus the competency of the individuals
concerned."
We believe, as did the Trial Examiner, and find, that Weaver also
said, in effect, he "recognized seniority in all departments." Em-
ployee Leonard then asked how long one's seniority in a department
would last if he were transferred from that department into another
part of the plant. Weaver replied : "I think about 6 months would
be a reasonable time." Thereupon employee Daisy Lunter said she
had been out of work for some time because of illness and had been
assigned to a different job on her return. She asked if she could
not regain her former position. Weaver said he would look into the
matter. Nevertheless, we also believe that Weaver and the Flints
did not agree, and Weaver did not promise, to use seniority as the
only basis for selecting employees for promotions, lay-offs, or other
purposes. When Weaver said he "recognized" seniority, we find
Weaver meant that he recognized it as an element to be considered
along with other factors.
The record indicates clearly and without contradiction that the
respondent has so considered seniority in making its selections of
56 Gillooly died before the hearing . Cook, Muhleman , Harshman , Weaver, and Carnahan
testified to hearing such statements from him.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Weaver testified on direct examination that in connection
with lay-offs, "the principle on which the foreman and the depart-
ment head had been instructed to proceed, and which was plant policy,
was that length of service, plus competency and a job record of the
man's ability . . . (as) demonstrated over a period of time would be
the decisive factors." Also Harry Huff, superintendent of the "cold-
end," and responsible directly to Weaver, testified that "length of
service and equal ability getting the work done" were recognized in
his department; that seniority was used as the basis for allotting
vacations; that it was the basis for selecting a man to be called in for
extra work "providing he is qualified to do the work which is avail-
able" and that length of service and ability constitute the basis for
making promotions. "If we have a case which comes up with regard
to length of service of a person and we have five or six people going
to do something, the person with the longest amount of service, pro-
viding they have the qualifications to do what is wanted to be done,
will get the preference,' Huff testified. He said that applied to
lay-offs.
The greater part of this case is concerned with men laid off in
January 1938, from work in the "hot-end" or production department.
Concerning this lay-off, Nelson wrote in a memorandum to Weaver
dated September 22, 1938: "The ones retained were those (who)
through point of service and ability would prove most valuable to
the company." b' Although Nelson's memorandum concerned a
group of extra operators, it is clear that the same policy was sup-
posed to apply to all employees. To facilitate the work of the fore-
men selecting men for this lay-off, Nelson had the personnel office
prepare lists of all the employees involved, with the employment or
seniority dates and the marital status indicated for each man.
2. The lay-off, discharge of and the refusal to reinstate Thomas Berry
Berry started working for the respondent in 1921. His last period
of continuous service, and therefore his seniority, dates from 1926.
Since that time Berry has worked as a boy '58 floor machinist, extra
operator, and operator. During April of 1937 Berry worked under
Foreman Harry C. Carder as a relief operator and as a boy. The
record makes apparent and we find that Berry, during the last few
days before his lay-off on April 12, 1937, was working as a boy.
Berry joined the Flats on March 29, 1937-even before he signed up
with the G. B. B. A. He became a very active member of the Flats,
57 Italics in the original.
53 The term "boy" does not refer to a juvenile but rather to an adult engaged in rather
unskilled work in contrast to operators and machinists . Boys were usually engaged In
removing and setting up partially finished glass.
HAZEL-ATLAS GLASS COMPANY 377
distributing application cards and soliciting membership openly on
the streets and in recreation rooms, around Fetty's poolroom near
the plant, and inside the plant itself. Berry signed up "several"
members even before the Flats held their first meeting on April 21,
1937. He circulated notices for this meeting and for the second
Flats meeting. He passed out these notices to employees in front
of the factory gates, where he had access to employees entering or
leaving the plant. Berry made no secret of his activity but as ap-
pears below openly brought his activity on behalf of the Flats to
the attention of the respondent. He was widely known as a prime
mover in the Flats.
On about April 10, 1937, David Blackwell, manager of production,
stopped Berry in the plant while Berry held a batch of Flats appli-
cation cards in his hand. Blackwell warned : "Tom, you C. I. O.
fellows are going to mess around and get this factory shut down." 59
At about the same time Foreman William Blackwell stopped Berry,
who was again holding signed Flats application cards in his hand,
and said : "I see you have got a lot of them, haven't you? How many
have you got today Tom?" Berry replied that the Flats had over
51 per cent of the respondent's employees signed up. Blackwell and
Berry then argued about unions and political matters.60 At about
this time Berry found himself shadowed by one Virgie, a former
watchman of the respondent.81 When Berry remonstrated with
Virgie for following him around, Virgie said : "Tom, I don't do it
because I want to, it is part of my job."
On April 12, 1937, as found above, Berry was working as a floor
boy and he had been working in this capacity for several days prior
thereto. The machine however, on which Berry had been previously
working as an operator, was shut down, and it appears that there
was not at that time further operating work available for Berry.
One Leonard, then chairman of the Boys Branch of the G. B. B. A.,
protested to Carder, Berry's foreman, against Berry (whose work
appears to have been primarily that of an operator) working as a
boy. Carder accordingly told Berry to go home, denying him fur-
ther work as a boy and said in effect, "We will have to wait and see
what turns up and I will see you up at the Elks Club."
It was customary in the respondent's plant for an employee laid
off because no work was available to report back on the following
day, or the day thereafter, to see if any work had become available.
w Blackwell denied making this statement . The Trial Examiner, who had the oppor-
tunity to observe the demeanor of the witnesses , credited Berry's testimony and disbelieved
Blackwell , as do we.
61 Blackwell denied that all or any of this conversation took place . Upon the entire
record we discredit Blackwell and find that Blackwell made the foregoing remark substan-
tially as attributed to him by Berry.
61 Now deceased.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His card was normally kept in the clock rack. He was expected to
punch the card in at the time clock and to report to his foreman
to see if work was available; if there was none he would then punch
out his card at the clock, leave the plant, and return again to make
similar inquiry. If the employee were unheard from for a month,
or two pay-roll periods, his card would be pulled from the rack, and
the employment relationship terminated. Although Carder said he
would see Berry at the Elks Club, Carder testified that his statement
would not release Berry from the company rule requiring him so
to report and Carder testified that he never saw Berry thereafter. It
appears, however, that this rule was not inexorably followed and that
on at least one occasion an employee had failed to report back without
effect to his employment status. Berry, moreover, testified that he
did report back on several occasions shortly after April 12. Upon
the entire record we find that Berry, within the month following his
lay-off, reported back to ascertain whether there was work available
for him.62
Berry testified, and there is testimony from Rogers and Ward cor-
roborative of his view, that his card was pulled on May 1, 1937.
However, a notation by the respondent dates the time of the removal
of his card from the time-clock racks as May 24, 1937, and we find,
as did the Trial Examiner, that this was the date of this occurrence.
It appears, nonetheless, that Berry complied with the company rule,
and his discharge accomplished by the pulling of his time card was
not, as urged by the respondent, occasioned by a failure to report to
work. Subsequent declarations by the respondent's representatives
show that an asserted violation of the respondent's rule was seized upon
by the respondent as a welcome pretext to cloak its discharge of
Berry because of his solicitation and militant activity on behalf of the
Flats.
After Berry's card was pulled, Berry spoke with watchman Jess
Chilters and asked him why this had happened. Chilters said : "I
understand you've got a job helping organize under the C. I. 0.
and . . . I have orders to keep you out of here."63 Immediately
thereafter Berry telephoned to Weaver and then to Nelson asking
them why his card had been removed from the rack. He reported to
Weaver that Chilters had said that his card was pulled because he
had a job organizing for the C. I. 0. and Weaver replied: "That is
what I hear, too, and that is the reason why your card was pulled .1164
e' We do not deem Berry 's testimony in conflict with Carder 's since it is possible that
Berry may have reported back to work and ascertained that there was no work available
for him without having seen his foreman.
68 Although Chilters died before the hearing , these remarks were corroborated by G E.
Rogers, who was present at the watch clock at the time Berry talked to Chilters and heard
their conversation.
04 Berry had not served as a paid organizer for the C. I. O.
HAZ1;L-ATLAS GLASS COMPANVT 379
Nelson spoke to Berry to the same effect. Weaver and Nelson by the
foregoing remarks admitted to Berry in effect and we find that his
card was pulled, and Berry discharged, because of his solicitation and
activity on behalf of the Flats. Moreover at the time when the above
conversations took place, Berry by his inquiry disabused the respond-
ent of its asserted belief that he was working for the C. I. O. and in
effect asked for reinstatement to the respondent's employ. There is
no showing that at this time work was unavailable for Berry either
as an operator or as a boy and we find that such work was available.65
At about this time one Flynn, an active Flats member, was cautioned
by his foreman, "You see what happened to Tom Berry and it will
happen to you; you can't afford that." Although Flynn was not a
particularly credible witness, as we elsewhere find, we believe him in
this instance since Flynn's testimony is corroborated by Carl C. Mc-
Clung, a credible witness, who testified that his foreman, Otto Wolfe,66
threatened him with respect to his Flats activities, "You will keep on
until you get the same thing that Tom Berry got for this stuff.67 That
is what he got it for.768 Giving weight to the abundant evidence of
the respondent's hostility to the Flats, we find that the respondent
discharged and denied reinstatement to Berry, a prime mover in the
Flats, as part of its campaign to foreclose the Flats and to insure
acceptance of the Flints among its employees. We note that the re-
spondent singled out Berry at a time when the organizational conflict
between the Flints and Flats was at its height, and Berry was widely
known as one of the leading protagonists of the Flats and had been
the subject of threats and warnings. In reaching this conclusion we
'S It was not until the fall of 1937 that the respondent began curtailment of its force.
es McClung 's testimony under cross -examination indicates that Otto's brother, Creed
Wolfe, another of the respondent 's foremen , may have made the following remarks. We
deem it more probable that the remarks were made by Otto Wolfe, and we so find, noting
that had Creed Wolfe made the remarks , they would nontheless have been attributable
to the respondent
87 Wolfe denied this and other remarks attributed to him by McClung , although admitting
that he was "a good , personal friend" of McClung's . Wolfe's testimony with respect to
McClung contains inconsistencies and impresses us as untrustworthy . Upon the entire
record in the case we disbelieve Wolfe and find that he made the remark here attributed
to him by McClung.
es McClung also testified that watchman Chilters told him : "Carl , you want to watch
yourself . You are doing the same thing that Tom got released here for." We find that
Chilters ' employment at the time racks supervising time records , and the admission and
egress to and from the plant placed him in the position of a representative of management
with respect to other employees.
Chilter's authority is instanced by the fact that at a later date he denied Berry's
entrance into the plant for the purpose of obtaining his tools We further find that
employees of the respondent considered Chilters a representative of management . Inter-
national Association of Machinists v. National Labor Relations Board, 311 U. S. 72,
aff'g 110 F . ( 2d) 29 (App. D. C.), enf'g Matter of The Serrick Corporation and Interna-
tional Union, United Automobile Workers of America, Local No. 459, 8 N. 'L. R. B. 621;
rehearing denied 311 U. S. 729. Nevertheless , we give little probative weight to the
remark attributed to Chilters in this note, and consider it only as it tends to show that
remarks of similar character set forth above and made by the respondent 's supervisors.
were declarative of the respondent 's policy toward Berry.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give weight also to the respondent's own explanation of why Berry's
employment relationship had been severed, that it "understood Berry
had a job organizing for the C. I. 0.," as indicative of the respondent's
discriminatory purpose. We give weight as well to the fact that the
respondent's officials used what happened to Berry as a warning to
other employees to cease activity on behalf of the Flats.
Under all the circumstances we find that the respondent by discharg-
ing Thomas Berry on May 24, 1937, and by refusing to reinstate
Thomas Berry in June 1937 and thereafter, discriminated in regard to
his hire 69 and tenure of employment, thereby discouraging member-
ship in the Flats, and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them by Section 7
of the Act.
3. The extra operators
In 1934 or 1935 the respondent began the introduction of some
new machines into its Clarksburg plant. It found, however, that
the men experienced difficulty in adapting themselves to their new
tasks. To meet this problem, Weaver and Nelson decided to assign
helpers to the foremen "in order to give each individual foreman
more time to devote to the actual operation of those machines." Nel-
son testified : "My idea was that they were on there to assist this
foreman ... in doing whatever he had to do."
These helpers or assistants were selected from among the boys 70
"on the basis of being unusually good workers, who would report for
work steadily, and showed an interest in their work [i. e. boys who]
would not stand back when there was something to be done." Nelson
told each foreman to "pick out a man that would give him the most
help and assistance, and be a good workman." a man who was ener-
getic and ambitious.
Like foremen, these assistants were taken out of the "incentive
bonus" system and given a flat wage; their base rate was raised from
60 cents to 85 cents per hour, so that they received approximately
the same amount of money as boys in production. Nelson testified :
"These boys more or less naturally became acquainted with the duties
that the foremen were performing and did, in some measure, do quite
"Even assuming, contrary to our finding, that Berry's card was pulled and Berry dis-
charged because of violation of the respondent 's rule requiring him to report back to work,
we find, in view of the respondent 's expressions of discriminatory purpose set forth above,
that the respondent in June 1937 discriminatorily refused to rehire Berry within the
meaning of Section 8 (3) of the Act. See Phelps Dodge Corporation v. National Labor
Relations Board, 313 U. S. 177, decided April 28, 1941, mod and remand., 113 F.
(2d) 202 (C. C. A. 2) which enf. as mod., Matter of Phelps Dodge Corporation, a corpora-
tion and International Union of Mine, Mill and Smelter Workers, Local No. 80, 19
N. L. R. B. 547.
70 See footnote 58, supra.
HAZEL-ATLAS GLASS COMPANY 381
a number of things that the foremen were supposed to have been
doing theretofore." Since their job was to help the foremen and
the men under the foremen as much as possible, these assistants be-
came quite versatile, increasingly able, and more capable of assuming
responsibility as they gained experience.
The respondent did not give any title to these assistants, but they
came to be known both by the management and the employees in
general as "extra operators." This was undoubtedly because their
duties were more with the foremen and operators than with the boys.
As the respondent indicates in its brief, the nature of the work per-
formed by them was different from that of the boys. Foreman Amos
Trent described it thus: "An extra operator used to help make the job
changes, help set the glaziers. In other words, he was more or less
responsible for a glazier, if the foreman was busy on some other
tank, that is, to check it, and in case it was not right to let the fore-
man know. And he also had gauges or rings or cuppers or lippers,
or whatever it might be, ready for the job going on." Foreman
Riley testified similarly : "The extra operator was placed on there
{'o help the tank foreman in his duties ... He was to help the tank
men to set the fire ... and help out the operators in as much ways
as he could."
The installation of machines was completed in 1937. However,
the respondent "enjoyed a pretty fair volume of business" in that
year and so kept the extra operators on longer than originally in-
tended. In the meantime the foremen had become accustomed to
letting the extra operators perform part of their regular duties.
The extra operators classified themselves as skilled workers. This
classification was accepted by the Flints and they became members
of Local 88, which was the local for operators and other skilled
workers.
However, during the latter part of 1937 and the early part of
1938 the respondent's production decreased substantially. In Jan-
uary 1938, the respondent laid off approximately half of its em-
ployees. Included in those laid off were 13 out of the 20 extra
operators. In March 1938, the respondent discontinued the extra
operators' classification completely. That part of their work which
was done to assist the foreman was thereafter done by the foreman
himself. The rest of it was absorbed by the operators and the boys.
Some of the boys who took over substantial amounts of this work
were known as ware boys or spare boys. They received 65 cents
per hour and no bonus.
It therefore appears that extra operators were employees who, by
reason of their selection and consequent experience, had more skill
and/or versatility and/or industry than the unskilled employees known
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as boys, and that they ranked just below the operators and skilled
machinists in so for as value to the company was concerned.
The complaint in this case alleges that three of the extra operators
laid off on January 22, 1938, (McClung, Guy Radcliffe, and Phares)
were so laid off because of their membership and activity in either
the Flints or the Flats. However, all of the 13 men laid off, except
John Barr, had substantially less seniority than the 7 retained.
McClung, who outranked the dismissed men, except for Barr, in sen-
iority, had nearly 3 years' less seniority than Kovelan, who had the
least service of the group retained. It therefore appears that the selec-
tion among the extra operators was made on the basis of seniority
i ather than on union membership and activity. It further appears
that the dismissed extra operators were not eligible at that time for
employment as boys because they were members of Local 88 instead
of Branch 566 and were barred from boys' work by the rules and
understanding of the Flints.71 However, on March 14, 1938, the
Flints changed their rules by transferring the extra operators to
Branch 566 so as to make them eligible for work in the plant as boys.
Consequently, on the next day, March 15, the respondent reinstated
8 of the 13 extra operators as boys. McClung, Guy Radcliff, and
Phares were never reinstated. The question remaining is, therefore,
whether the respondent failed to reinstate 42 McClung, Radcliff, and
Phares as boys because of their union membership and activities.
Carl C. McClung started work for the respondent in 1930. For
about 6 years he worked as a boy, largely as a take-out boy. Then he
was promoted to a position as extra operator and served in that capac-
ity for the last 2 years preceding his lay-off.
McClung joined the Flats about April 16, 1937. As found above, he
distributed notices for the Flats' first meeting, held on April 21;
he gave one notice to Foreman Otto Wolfe, who thereupon told him
that was a good way to lose his job. McClung attended the Flats'
meetings and solicited applications for membership in the Flats. At
another time, Foreman Wolfe took some Flats applications out of
McClung's shirt pocket, looked at them, and then said he had better
slow down because "they had orders that they was going to get rid
of us guys; that the Union that the company had there was plenty
good enough and we would be discharged if we did not quit our
activities in the CIO." 73
41 We do not deem the fact that the Flints was a company -assisted organization material
to the issue here of the respondent 's motive in not reinstating the three extra operators
73 Employees reinstated by the respondent were called back to work by the respondent
without regard to applications for reinstatement. Names of employees to be reinstated
were sent to the respondent 's employment office, which notified the employee concerned.
73 Although the above is denied by Wolfe , upon the entire record we believe McClung.
See footnote 67, supra.
HAZEL-ATLAS GLASS COMPANY 383
Also Foreman Creed Wolfe gave McClung similar warnings. He
said that the respondent forbade the C. I. O. organization; that if the
employees signed up for the C. I. 0., the company would shut the
plant down; and that "they would discharge us if we were caught
signing up for this organization." 74 McClung was a personal friend
of McWilliams, the Flats' organizer, and one day was seen with him
outside the factory. Both Creed and Otto Wolfe asked McClung
with whom he was talking. On being informed it was McWilliams,
they told McClung it was "bad business." We have already noted that
Foreman Otto Wolfe warned McClung when he was organizing on
behalf of the C. 1. 0., "you will keep on until you get the same thing that
Toni Berry got for this stuff."
In the autumn of 1937 McClung, Otto Wolfe, and their wives
attended several football games together. After the games they some-
times stopped at Wolfe's house to visit. On one such occasion Wolfe
told McClung he ought to protect his job more than to fool with
C. 1. 0. organization, because "they would put us out sometime or other,
the way it was." 75
The respondent alleged at the hearing and in its briefs that McClung
was not reinstated because he talked too much, "because he was all the
time complaining about his work," because he was always dissatisfied,
because he "visited around the plant a good bit when he was on relief,"
and talked to the girls unnecessarily. Some of the respondent's
officials testified McClung was "a fair worker" and not as good as
other workers who were retained. However, these allegations were
in general denied by Foreman Carder, who had supervised McClung
during a substantial part of McClung's work as an extra operator.
Carder said it was common for the men to visit during their relief
periods and that McClung did so, but that there were never any com-
plaints about his not reporting for work when his time was up; that
McClung did not visit more than the other workers. Carder said
he did not have any trouble keeping McClung on his job; that if he
had he would have spoken to McClung and then reported it to his
superiors, and that this did not occur. Carder also said McClung
was not lazy and did not complain about his work. In fact Carder's
testimony indicates McClung to have been an unusually conscientious
and well-qualified worker. He said that at times McClung "prac-
tically ran" the machine in order to help his operator, an aged man
who needed some assistance; that McClung would change the plungers
at times, and start up the -machine, and in other ways do "a lot of
74 This testimony stands undenied . Creed Wolfe died prior to the hearing in these
proceedings.
16 We accept McClung's testimony over Wolfe's denial.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good" to help his operator. Carder said McClung was a "good extra
operator" and an excellent take-out boy.76
We believe that McClung did visit about the plant the same as
other employees, and that the supervisors knew this. The record
shows that in 1937 McClung's conversations were largely on behalf
of the Flats, and that the supervisors knew this also. In fact, they
warned him, not against his talking, but rather against his talking
for the Flats. McClung did not violate any rules against visiting;
he did, however, violate the respondent's policy against unions when
he urged support for the Flats. We believe and find that this was
what the foreman meant when they testified at the hearing about his
talking and especially about his complaining.
McClung's experience as an extra operator and Carder's testimony
indicate that McClung was not only an unusually good extra oper-
ator, but that he was outstanding as a boy.77 We find that the re-
spondent laid him off as an extra operator because of its change in
organization but would have rehired him as a boy on March 15, 1938,
if it had not been for his support of the Flats. It is therefore found
that the respondent failed to reinstate McClung on March 15, 1938,
and at all times since, because of his membership and activity on
behalf of the Flats and because of his failure to accept the respond-
ent's warnings that he desist therefrom, and that by so failing to re-
instate Carl McClung, the respondent discriminated in respect to
his hire and tenure of employment, thereby discouraging membership
in the Flats, and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Section 7
of the Act.
Lloyd L. Phares first began to work for the respondent in 1918, but
his last period of employment dated from May 1933. He worked as
an extra boy, a stick-up boy, and a take-out boy. Then he was
promoted to operating and operated a "T type" machine. After that
he worked as a relief operator (relieving different operators on their
days off work), as a floor machinist (doing skilled work in the repair
and/or adjustment of machines), and probably as a boy. He thus
46 Carder 's position at the hearing was an anomalous one His long record of employ-
ment with the respondent and his position in the plant as foreman for 17 years tend
to indicate that his loyalty and interest lay with the respondent rather than with labor
organizations . On the other hand , his cooperation with the Flint's strike ( hereinafter
described ), and his position in this proceeding as the subject of a Section 8 (3) allega-
tion in the complaint, tend to indicate that his sympathy and interest lay with the
employees rather than with the respondent Because of these conflicts in interest, it
appears that Carder was actually a disinterested witness In addition , the Trial Ex-
aminer noted the willingness and frankness with which Carder testified on the stand. The
Trial Examiner believed , as do' we, Carder to be a highly credible witness and accepted
his testimony as true
as Carder ' s testimony is corroborated by the admission of Foreman Wolfe that he "never
had anything against [McClung 's] work, while he worked."
HAZEL-ATLAS GLASS COMPANY 385
became versatile and was made an extra operator, in which capacity
he continued until the January 1938 lay-off.
Phares joined the Flats at the April 21 meeting in the Masonic
Temple. After this meeting, he went with McCabe, president of the
Flats, and a group of the most interested listeners to McCabe's room
in the hotel for an additional conference. The next evening, in the
Strand Poolroom, he accused one of the men who had participated
in the conference of deserting the movement, saying : "John, you
have turned yellow." This led to a fight which was broken up by a
city policeman threatening to arrest Phares. Although he was not
arrested, his union interest was thus made known to the 150 people
present and to the public.
Phares continued to be active in soliciting memberships for the
Flats. He talked up the Flats and got signatures on application
cards in the poolrooms, on the city streets, and in the plant. His
duties occasionally took him into the packing-room department. He
took advantage of this opportunity to solicit the girls in that depart-
ment for membership in the Flats. Likewise he solicited around the
company refreshment stand during his rest periods. He attended
the Flats' meetings, helped circulate their notices of mass meetings
and did everything he could to promote the Flats' cause. He testi-
fied that he signed up "between 75 and 100" cards for the Flats.
The respondent's supervisors testified that Phares was inclined
to be lazy and that he showed no spirit of cooperation. The respond-
ent also capitalized on Phares' own admissions that he talked to the
girls in the packing room. However, these criticisms seem to be di-
rected more to his solicitation for the Flats than to his work. There
was also testimony, however, that Phares once was not on hand help-
ing an operator when he should have been present; that once he
failed to set a glazier; that he was slow on job changes; that a com-
plaint had been made about a loss of ware during his work period;
and that he was not as good an extra operator as some of the other
men. The absences from his machine were caused by the nature of
Phares job as an extra operator, which required going into other
departments for moulds, tools and check-ups on the ware. The opin-
ions as to Phares' ability in comparison with the other extra operators
were expressed by formen in defense of their employer. Even if
correct, they do not determine Phares' ability as a boy.
However, the foremen were not unanimous in finding fault with
Phares' work. Thus Carder testified Phares did not visit with the
girls any more than the other workers; that he cooperated; that he
was available for work; that his "job changes" were satisfactory, and
that he was not lazy or slow. "I couldn't say that he ever let up any
on his work, what time he worked for me," Carder said. Carder's
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience with Phares was apparently limited, but it does cast doubt
on the testimony of other foremen. Furthermore, Carder's testimony
was corroborated by Plummer Goff, who served as foreman at various
times in 1937, and supervised Phares' work. According to Phares,
Grover Junkins, Phares' foreman immediately prior to his lay-off,
said after the lay-off, "Lloyd, your work has always been satisfactory
and I do not know what is wrong, but I will see Nelson and see what
is wrong." Junkins' denial of these words first took the form, "I just
didn't tell him that way. I told him I might see Nelson later." We
find that Junkins made in substance the remarks attributed to him.
Moreover, Phares' assertion that in the absence of Foreman Riley,
be performed Riley's work as foreman, was not conclusively denied
by Riley. We find that Phares did so, and infer that his selection for
this task resulted from meritorious ability.
We believe and find that Phares' outstanding ability was established
by his selection and experience as an extra operator. Not only extra
operators but also boys with less seniority than Phares were reinstated
by the respondent on March 15, 1938. Weighing all circumstances
and Phares' seniority, ability, and prominent activity on behalf, of
the Flats, we believe that the latter was the sole reason for the respond-
ent's failure to reinstate him on March 15, 1938, and at all times
thereafter.
We further find that the respondent by failure to reinstate Lloyd
Phares on March 15, 1938, and thereafter, discriminated in regard to
his hire and tenure of employment, thereby discouraging membership
in the Flats and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them by Section 7
of the Act.
Guy J. Radcliff originally started work with the respondent in
1915; his last period of continuous employment dates from May 1933.
During this latter period he worked as a boy until about 1935; then
he became an extra operator and continued as such until the January
1938 lay-off. As extra operator he assisted the foremen in different
jobs, even to the extent of being in charge of production during their
occasional temporary absences from the plant.
Radcliff was not one of the group active in promoting the Flats;
instead, he became active in the Flints. On April 28, 1937, he joined
Local 88, which consisted of the skilled workers. On May 7, he
was elected a committeeman in Local 88; soon thereafter he was
appointed to give special representation to the extra and spare opera-
tors. In this capacity he was present and participated in the May 20
meeting at the Stonewall Jackson Hotel, where he argued in favor of
local working agreements instead of the Flints' proposed plant-wide
agreement. In this he was overruled. A short time after that meet-
HAZEL-ATLAS GLASS COMPANY
0
387
ing, he was the leader of a group of extra operators who conferred
with Weaver, Nelson, and Dave Blackwell about a local agreement
for their group. They had submitted a copy of 10 to 13 propositions
to the company in advance. These formed the agenda for the meeting.
During this meeting, Radcliff looked over Blackwell's shoulder, saw
his memorandum, and noted that he had a big "no" at the end of
each proposition. Radcliff thereupon interrupted the meeting and
announced to Harshman and his fellow conferees : "What is the use
of sitting down and arguing this thing, because it has already been
decided?" Despite this accusation, however, the conference continued.
As each point came up, the respondent said : "We will take it under
consideration." None of the propositions was granted.
On July 21, 1937, Flints Local 88 elected Radcliff chairman. That
same evening the local decided to call a strike of the operators, effective
that night, to enforce the Flints' closed-shop agreement with the re-
spondent. Shortly before midnight, representatives of the local in-
formed Myers, assistant to the superintendent of production, that they
would not work on the midnight to 6: 00 a. m. shift, nor on the subse-
quent shifts, if the respondent allowed operators not members of the
Flints to work. Myers telephoned the demand to Nelson at his home;
Nelson hurried to the plant, arriving shortly after midnight. He
testified : "The plant was shut down, the entire hot end. No flow
spouts were plugged up but the men . . . were refusing to work."
Nelson inquired about the difficulty and was told the men would
not work because there were two operators on the midnight shift who
had not joined up with the Union. "I got pretty mad about it," Nelson
testified, "because they would take advantage of me at an hour such as
that, to enforce that. I asked them why they had not discussed this
thing with me prior to that time, or at least given me a list of names
of those fellows who were not in good standing, and they said, well,
they had nothing to do with it ; that was the instruction from Harvey
Harshman; that they had had a meeting that night and those were
the instructions which he had given them." So Nelson had Harshman
come over to the plant, and then had another meeting with the
committee.
Nelson testified : "I, at first, told the committee to go ahead and go on
home, and said : `If that is the way you do business, go ahead."' The
committee left, but Nelson then recovered somewhat from his anger
and called them back. - He telephoned Weaver, who was in New York
City. Weaver told Nelson to concede to the Flints. He did so. Op-
erators Means and Rymer were not allowed to work that night, nor
were other operators who did not join the Flints.
Guy Radcliff did not participate personally that night in the ne-
gotiations with the respondent. Nelson testified that he never knew
0
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Radcliff had anything to do with the incident until the hearing; that
he did not even know who was president of the operators' local at
that time because "that local had presidents galore. They were in and
out and resigning, and it was pretty difficult for me to keep in touch
with them."
Weaver returned to the plant several weeks after the strike was
settled. Radcliff testified that he and Harshman conferred soon-
thereafter with Weaver and that the strike was mentioned; that
Weaver said : "I don't like it. You shut my plant down ... You
did not give me enough time." During Weaver's testimony, he was
interrogated by counsel for the respondent as follows : "I believe Guy
Radcliff has testified here that when this event was over that you
squawked to him, I believe was his expression, about this incident.
Do you recall anything about that?" Weaver replied: "If squawking
is the term that he applied, I at least did that." It thus seems clear and
we find that the respondent's officials knew Radcliff was president of
the local at that time; that they believed him responsible, at least in
part, for the calling of the strike, and that they were angered at its
being called without any notice, because of the inconvenience and the
interruption in production.
A short time thereafter, another dispute arose between Radcliff
and Nelson. The latter had instructed his foremen not to carry any
more help than was absolutely necessary. On this particular evening,
Nelson told Foreman Russell Phares that he would not have over two
machines running that night and that it would not be necessary for him
to carry an upkeep man (sometimes referred to as a floor mechanic).
Accordingly, Phares told Luther Deems that he was not needed
and that he should go home. Radcliff then went to Phares and said
there was an agreement that the company would maintain an extra
operator and a floor machinist whenever there were two or more
machines in operation, and that Deems should work. " Phares said
he got authority from Blackwell and Nelson to let Deems go. Rad-
cliff replied : "They are all wet. This man is supposed to work."
Foreman Phares then put Deems back to work.
When Nelson returned in about an hour and a half, Phares reported
the incident to him. Nelson thereupon told Phares he did not want
him going against the instructions given him and that his "instruc-
tions emphatically were not to work an upkeep man on that tank and
for him to send him home." Phares did so. Thereupon Local 88
had a meeting that night and discussed "ways and means of getting
V. L. Nelson out of the plant . . . because he was . . . subjecting
the employees to what we termed unfair labor practices and ... we
wanted to get rid of him."
HAZEL-ATLAS GLASS COMPANY 389
The next day Nelson called Radcliff to the office and said : "Where do
you get the idea of telling us who can work and who can not work?"
Radcliff said that was the agreement with the Flints. Nelson replied
that the Star Island Agreement was the only agreement the company
signed and, "By God, I am in charge of production and I am not
going to let you or any union run it; the supervision is running this
plant." Nelson also said he had reports the committee was trying
to relieve him of his job but that it did not concern him very much
because he had not gotten his job from them and he did not consider
it within the committee's power to relieve him of it.
At sometime in August or September 1937, Nelson met with Rad-
cliff and a committee from the Flints about a list of so-called inefficient
operators. Nelson said the men so listed were inefficient and that as
long as he was superintendent none of them would' ever operate
another machine. Radcliff said that for a man in Nelson's position,
"that was a very narrow minded statement to make ... and that if
it got back to any employee, they would not have any tendency to
become better workers in the future." Radcliff further said that
the men were not inefficient and that he wanted access to the com-
pany records to prove their efficiency. This was refused. Radcliff
thereupon told Nelson he thought "it was an unfair advantage which
was taken over the men; that they were not given a square deal."
In about October 1937, Radcliff, Leidy, Muhleman, and Shay con-
ferred on behalf of the Flints with Nelson and Strider, who acted
for the respondent. This conference was in regard to a proposed
strike on the automatic machine devices. The extra operators and
floor mechanics were asking for more men per job. Radcliff took
the position that there was too much work being placed on the mem-
bers of his union and said it was "absolutely impossible for one man
to perform the work." The respondent disagreed. However, when
the employees voted a strike in October, Radcliff opposed it because
orders were slack. He said the Union should "wait to catch them
with their pants down and then put it to them."
Throughout the autumn of 1937 there were disputes with the re-
spondent and within the Flints as to whether Local 88 and Branch
566 should be consolidated. Nelson and Weaver thought they should
be, apparently because the division between skilled and unskilled
workers was hard to maintain. Some of the men agreed. But Rad-
cliff opposed it "tooth and toenail," and had some hot words with
Nelson about it. However, in October or November 1937, the two
divisions did consolidate. Radcliff continued to oppose consolidation.
He circulated a petition against consolidation, and he wrote a letter
to the Flints' national officers for assistance . He was eventually suc-
cessful. Sometime in November the operators and boys split up again
451269-42-vol. 34-26
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and went back to their respective locals. In December 1937, Radcliff's
term of office expired; however, he was then elected vice chairman of
his local and continued as such thereafter.
There were other conferences, disagreements, and threatened strikes.
Radcliff participated in these as chairman of Local 88. Weaver testi-
fied : "I will admit that he expressed himself on different matters, but
I don't recall that he monopolized the time at all."
The respondent's briefs summarize various critical testimony of
the supervisory officials to the effect that Radcliff was always com-
plaining, playing along on the job, arguing with his superiors, and
that he was slow and far inferior to the other extra operators. How-
ever, two supervisors testified to the contrary. Thus Carder, who
served as relief foreman over Radcliff in 1937, testified that Radcliff
never refused to do any work required of him, that he was attentive
to his duties, that he was not slow, but instead was "very efficient,"
and that in melting ware, "he is one of the best men I have ever
worked with," and that he was "an A No. 1 worker ... a very good
extra operator, take-out boy, stick-up boy and a fair new operator."
Plummer Goff also served as relief foreman at various times, and in
1937 supervised Radcliff to some extent. He testified that Radcliff
never complained about his duties, or about overwork, that he was
not slow, that he set the glaziers properly, did not spoil any ware,
and was a very good extra operator. Goff said : "I have saw him
work until he looked black in the face, and never said a word, but
went right along with it." There thus seems to be considerable doubt
as to the validity of the criticisms about Radcliff. They could be
attributed partly to the nature of his job, which would normally
involve the making of some mistakes and some departures from his
machine. Upon consideration of all the facts we find, as did the Trial
Examiner, that Radcliff was among the better qualified of the
respondent's workers.
The respondent's brief also notes : "Radcliff's mental attitude toward
respondent and his work for his employer does not reflect much credit
upon him. He admits that he proceeded to tell a foreman at the plant
what he could or could not do with respect to keeping one Luther
Deem on a particular job. And he admitted that he advocated a strike
when respondent's production .got higher, so that it would have its
`pants down."' This statement refers to two above-described inci-
dents in Radcliff's union career. There were other similar incidents,
all of which were known to the respondent. Thus, as has been found
above, Radcliff interrupted a conference by accusing the respondent's
representatives of having made their decision before coming to the
conference; he was at least partially responsible for striking the re-
spondent's plant at midnight, without notice, in order to enforce the
HAZEL-ATLAS GLASS COMPANY 391
closed-shop agreement; he discussed with his local members ways and
means of removing Nelson from his job; he accused Nelson of being
narrow-minded and demanded access to the respondent's records in
order to prove Nelson's statements false; he also opposed the respond-
ent's desire for amalgamation of the locals and was eventually suc-
cessful. In pursuing these activities, he came to be considered a
troublemaker, a disloyal employee, or-as the respondent's brief
phrased it-one whose mental attitude toward the respondent did not
reflect much credit. We believe and find it was because of this mental
attitude and militant activity on behalf of the Flints that the respond-
ent came to consider Radcliff an undesirable employee and therefore
failed to reinstate him.
As appears above, the respondent, at about the same time that the
Flats began to organize its employees, encouraged the G. B. B. A. to
come in and organize, aided it in many ways, and coerced its employees
into joining it. We are convinced that the respondent did so because
it felt from the highly unsuccessful efforts of the G. B. B. A. over a
great many years to organize the respondent's employees, and from
its conferences with G. B. B. A. officials, that this organization would
be far less active and more amenable to the respondent's suggestions
than the Flats. When the G. B. B. A. ceded jurisdiction to the Flints,
the respondent had no alternative but to adopt toward the latter the
same attitude as it had toward the'G. B. B. A. Furthermore,' we be-
lieve that the respondent felt from past experience that the Flints also
would be more easily controlled than the Flats, and therefore prefer-
able as the lesser of two evils. Consequently, when some of the re-
spondent's employees who were active in the Flints became aggressively
militant on behalf of that organization, they went beyond the respond-
ent's plans, and indeed counter to them. We find it was for this reason
that the respondent failed to reinstate Guy Radcliff on March 15, 1938,
and at all times since, and that the respondent thereby, violated Sec-
tion 8 (3) of the Act, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by Section 7
of the Act.78
4. The lay-off of and failure to reinstate James C. Casto
Casto started working for the respondent in 1902, but his last period
of continuous employment, and hence his seniority, date from April 1,
1935. In 1911 Casto was a carry-in boy, working on the lehrs. Then
he became a take-out boy, and later a stick-up boy. After this he
""A discriminatory discharge may just as well be directed toward domination of a
labor organization as toward a dissolution or driving out of a labor organization,"
National Labor Relations Board v. American Potash & Chemical Corporation, 98 F.
(2d) 488, 495 (C. C. A. 9).
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went through a period of learning to be an operator, during which
time he relieved both boys and operators during their rest periods.
Finally he was promoted to the position of regular journeyman oper-
ator, and served as such from 1913 until 1918. When he returned to
work on April 1, 1935, he was made a floor machinist, and served
continuously in that position until he was laid off in January 1938.
A floor machinist or upkeep man has the job of adjusting the ma-
chines or presses so as to produce the different kinds of ware that are
desired at different times. They thus help make job changes, make
adjustments in the presses from time to time, and set up the machines
for the different operations. Casto testified this was more difficult
than the work of the operators because "the floor machinist has to
completely set up the machine for the operator." This may not be
quite accurate, however, since the remuneration is slightly less. Oper-
ators get a guaranteed base pay of 90 cents per hour plus a bonus
depending upon the output of their respective shops. During 1939
their total income averaged $1.38 per hour. Floor machinists get a
guaranteed base pay of 89 cents per hour plus a bonus which can raise
their total pay up to, but not higher than, 75 per cent of the operators'
total pay.
Floor machinists, however, are definitely considered highly skilled
employees. They were members of the Flints' Local 88 along with
the operators and extra operators. They attained their positions only
through experience and through promotions from the relatively easy
and unskilled work of the boys, in the manner illustrated by Casto's
job history. In contrast to their relatively high pay was that of the
boys'. Boys working in production received a guaranteed base pay
of only 60 cents per hour plus bonuses ranging from 53 per cent to 63
per cent of the operators' total wages. The bonus percentages de-
pended on the tasks performed by the boys. During one period, the
total pay of all the boys averaged slightly over 84 cents per hour.
Extra operators received a straight wage of 85 cents per hour. Un-
classified boys, or those not engaged directly in production, received a
flat wage of 65 cents per hour. It thus appears that the floor machin-
ists' remuneration was just under the highest amount paid by the
respondent to any of its non-supervisory employees in the production
department.
Casto joined the Flats right after their Masonic Temple meeting on
April 21, 1937; this was at the factory. Soon thereafter, Atkinson
gave him some blank application cards for the Flats and Casto began
to solicit the employees for membership. He approached his fellow
workers in the factory, in the poolrooms, on the public streets, and in
their homes. He secured about 20 memberships. He also regularly
attended the Flats meetings except when working on the night shift.
HAZEL-ATLAS GLASS COMPANY 393
During this period Casto's foreman , Joseph McIntyre, asked him tQ
join the Flints, and also to get three of his friends on the tank to join
the Flints.79 Casto took the three Flints cards, talked to his friends,
and returned the cards unsigned to McIntyre. He told him that he
belonged to the Flats and did not feel like signing a Flints card. Mc.
Intyre then said, "You had better get that out of your system .. .
Before the company would ever recognize the C. I. 0. . . . they will
nail up the gates."
McIntyre also said that Nelson had given him orders that if any
man was caught with C. I. 0. cards in the plant, he should be fired on
the spot; whereupon Casto pulled out some C. I. 0. cards and said,
"Here is some." McIntyre grabbed the cards out of Casto's hand, tore
them in two, threw them into the waste can and said, "If Nelson sees
you with those cards, he will fire you so darn quick your head will
swim. He has orders from Weaver to do so."
During the first part of April 1937, McIntyre told Casto that the
company knew every man who had signed a C. I. 0. card and that
"every man having that radicalism in them would be eventually laid
off." In the latter part of that year, McIntyre told Casto he was being
watched and if he did not get that C. 1. 0. out of his system, he "would
eventually get laid off for it."
Casto was notified on January 21, 1938, that he was being laid off on
the 22nd. He and McIntyre were "the very best of friends." There-
fore, he asked McIntyre the next day the reason for his lay-off. Mc-
Intyre said, "I can't tell you now." Casto asked if it was anything
against his work. McIntyre said no, that his work was very satisfac-
tory; that he would tell him later.
In March 1938, at a time when a large number of employees was rein-
stated, Casto met McIntyre by chance on the streets and asked if Mc-
Intyre thought he would be called back to work. McIntyre said, "No,
Jim, I had warned you several times that the C. I. 0. would catch up
with you . . . confidentially, Jim, Mr. Nelson gave me orders when the
19 This and following findings about McIntyre are based largely on Casto's testimony
Each of these incidents was, as the Trial Examiner found, politely but curtly denied
by McIntyre. However, McIntyre also denied other incidents , testified to by Casto, on
which the record leaves little doubt. Thus Casto testified McIntyre spoke to him about
the G. B. B. A, saying : "We have got a union out here for you to sign up a card for,"
and telling him that he would have to sign up if he worked there. McIntyre denied this,
as did the other foremen . But weaver's notice of March 29 clearly stated that the
company wanted the employees to sign up and expected Its foremen to execute that
policy. We find, as did the Trial Examiner , that McIntyre's denial thereof is not credible.
McIntyre also denied telling Casto he had to sign a Flints application blank in order to
continue working for the respondent or that he ever asked him to get his three friends
to sign Flints cards. However , the sudden growth of the Flints , the respondent's
premature granting to them of exclusive recognition , check-off, and closed shop and the
testimony of Rogers , Carder, and Kidd indicate such assistance by foremen was common
and was expected by the company. We agree with the Trial Examiner that McIntyre's
denial is again not credible . Upon the entire record in the case, we accept Castro's
statements as true and discredit the denials thereof.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lay-off came, to pick you first, for he said you had too much Communist,
red blood in your system."
From the above incidents it would appear that Casto was laid off
by the respondent on January 22, 1938, because of his activity in the
Flats. However, there were also other factors, the most important of
which was his lack of seniority. In January the respondent had 23
floor machinists, of whom 9 were laid off, including Casto. He was
next to the youngest in point of service. Not only Casto, but also the
man who ranked under him and the man just above him in seniority
were laid off. Every man who was retained had at least 11/3 years'
seniority above that of Casto. As has been found above, the respondent
considered seniority one of the important factors in selecting the men
to be laid off. We therefore believe that Casto would have been laid
off because of his lack of seniority as a floor machinist even though he
had not been a member of the Flats during the preceding year. Thus
we do not find that Casto's activities or membership in the Flats
affected the disposition made of him by the respondent in January
1938.
In February and March 1938 the respondent rehired or reinstated
a large number of employees previously laid off in January. Most
of these were taken back as boys. On March 14 the Flints trans-
ferred the extra operators and floor mechanics from Local 88 to
Branch 566, so they could be rehired as boys. As has been found
above, the respondent thereupon transferred or reinstated all but 5
out of its 20 extra operators as boys. Similarly the respondent
rehired or reinstated as a boy one of the floor machinists (Walter
Kerrigan) who had been laid off in January. However, Casto was
not so reinstated. The question thus arises as to whether the
respondent's failure to reinstate Casto was caused by his union
activities.
Casto understood that Nelson agreed that if the extra operators
and floor machinists were "kicked back into Branch No. 566," Nelson
would recall them to work as boys. Consequently, Casto, who had
reluctantly joined the Flints, and other Flints members went to
Flints' national headquarters in Toledo, Ohio, and made arrange-
ments for the transfer, which culminated in the Flints' letter dated
March 14, 1938, notifying the respondent that the floor machinists
had been transferred to Branch 566. On his return from Toledo.
Casto telephoned Nelson at his home and said he understood that
after they were placed in Branch 566, they would be called back
to work. Nelson replied, "The hell you say." Casto said, "That
is my understanding." Nelson then retorted, "Go see Mr. McCabe
HAZEL-ATLAS GLASS COMPANY 395
and some of your C. I. O. boys and get a job ." 8e Within the next
day or so, on March 15, 1938, the respondent reinstated a substantial
number of employees as boys. Eleven of those so reinstated on that
day had less seniority than Casto.81
Regarding Casto's ability as a floor machinist , Foreman McIntyre
testified , "Mr. Casto was a good , willing worker , and lacked experience,
and would become nervous , and at times almost flighty , I would
say. Take, for instance , if we had a couple of breakdowns at one
time, he would get confused and probably run from one to the other."
Other foremen also criticized Casto's work as a floor machinist.
However, Carder , who supervised Casto's work about one day a week
during 1937, testified that Casto was a dependable worker and that
he was not nervous or excited when working around him. Carder
said that , although he did not like to have a man leave one repair
job for another , nevertheless floor machinists did sometimes get away
to make a minor repair on another machine . Furthermore , Atkinson,
who was a machine operator from 1934 until July 1937 , testified
that Casto worked for or with him , repairing machines , for about
3 weeks in July 1937. Atkinson said he would have to rank Casto
"at the top " of all the machinists that had worked with him.
Casto did not seem to the Trial Examiner to be nervous or flighty
at the hearing ; instead the Trial Examiner characterized him as a
calm, methodical type of workman . His long record at the plant,
and especially his experience of nearly 3 years as a floor machinist,
at the correspondingly high salary of a skilled worker, indicate him
to be exceptionally well qualified as an employee in a lower capacity.
such as a boy . In view of his long and varied service record and
ability, and also in view of his union activities and the repeated
warnings given him, we find that the respondent failed to reinstate
Casto on and after March 15, 1938, because of his activities in the
Flats.
We find that the respondent by failing to reinstate James Casto
on March 15 , 1938, and thereafter , discriminated in regard to his
hire and tenure of employment , thereby discouraging membership
in the Flats and interfering with, restraining , and coercing its
employees in the exercise of the rights guaranteed them by Section
7 of the Act.
5. The lay-off and failure to reinstate the "boys"
During the period ending January 15, 1938, the respondent had
about 565 employees in the production department . Of these, 90 to
11 McCabe was then international President of the Flats
' Westfall , Swiger, Clark , Kelley, 0. A. McIntyre , McGowan, Duty , Boggs, Roy Blackwell,
Herrod, and Squires.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
100 were machine operators, 20 were extra operators, 23 were upkeep
men or floor machinists , others were mould changers , some were take-
out attendants, and about 390 were boys. During the last 2 weeks
of January, however, the respondent laid off 225 employees in that
department. No operators were laid off, but 13 extra operators, 9
floor machinists, and about 200 boys were in the group. As pointed
out above, these so-called boys were not juveniles but were, instead,
adults performing comparatively unskilled, manual work. They were
usually engaged in taking partly finished glassware out of a press
machine, or placing it in some other machine such as a cupper or
lipper, or transferring it to the lehr machine. Each piece of ware
must be picked up and set down by hand in these processes. The
glass is very hot and very soft so that it must be handled with con-
siderable skill and care. The boys also ran the cupper and Lipper
machines which were hand operated and were used to change the
shape of the ware slightly, for example, by putting the lips on jugs.
In addition, boys performed various miscellaneous tasks required to
guide the glassware through the machines and prepare it for packing.
Shortly after New Year's Day in January 1938, Nelson called a
meeting of the foremen in the production department and told them
they would have to cut the force of boys down to 45 men for each of the
4 shifts. He gave each foreman a list of the men on their respective
shifts, on the basis of which they were to select the men to be laid
off and those to be retained. He said that efficiency and length of
service were to be considered in making the selections : if employees
apparently had the same efficiency, then their length of service was
to govern, and if they had the same length of service, then their
efficiency was to be the determining factor. Nelson retained copies
of the lists used by the foremen on each of the four shifts, except
that on his lists there had been noted by the personel director, at
Nelson's request, the hiring date and marital status of each
employee.
Some of the more obvious decisions regarding employees to be
laid off or retained were made at this meeting , but the selections
could not be completed. Nelson testified : "It was very difficult and
it is hard to lay men off. Each foreman was very reluctant." So
a second and then a third meeting were held in order that the fore-
men might make their determinations on the borderline cases. All
foremen testified that it was a hard job to get down to the final
45 men. Foreman William Blackwell said : "We came to the place
where it was pretty hard to cut down the list, and we were getting
all about the same kind of boys, that is, of the same equal ." Presum-
ably it was in these cases of approximately equal ability that the
respondent allowed seniority to determine the selection of employees
to be retained and laid off.
HAZEL-ATLAS GLASS COMPANY 397
Among the boys laid off in this process were Rogers, William
Radcliff, Reed, Gaines, and WhytseJl. All five were laid off on
January 19, 1938; none of them has been offered reinstatement since,
although other employees laid off have been reinstated. The ques-
tion thus arises as to whether the respondent laid off or failed to
reinstate any of these five boys because of their activities in the
Flints or in the Flats, as the complaint alleged.
G. E. Rogers started work for the respondent in 1908, but his
last period of continuous employment and hence his seniority, dates
from February 11, 1935. He started in 1908 as a carry-in boy;
then he became a take-out boy; he helped repair machines. He also
swept the floor, carried water, and did general and relief work.
After the World War, he was an operator, operating two R-press
machines at once. In 1923 he worked as a take-out boy until his
tank went down. In 1933 he worked on the floor, i. e., swept the
floor, carried water, worked as a boy, and did about anything "just
the same as the other men in the plant were doing . . . There
were no other types of work in the hot end to do, only to be operator
or a foreman." Immediately prior to his lay-off in January 1938,
Rogers worked part of the time as a relief man. Sometimes he
worked regularly on a "shop," either as a take-out or a stick-up
boy. Rogers testified : "A relief man was an all around man, and
could handle all the jobs made in the plant. He had to be .. .
They were selected from the more efficient men, whenever possible
to do so."
When the G. B. B. A. came into the plant on about March 29,
1937, Rogers became a business committeeman for Branch 566, the
boys' branch. As Weaver testified, he "seemed to have this matter
of organization very much on his mind." As has been found above,
the respondent then proceeded to use Rogers as its instrument for
establishing the Flints at the plant. Thus on the afternoon of
Saturday, April 24, Nelson instructed Rogers to tell every man in
the production department the Flints were coming in to organize
the plant and that the men should join the Flints instead of the
C. I. O. or the plant would close down. Rogers did so. On Mon-
day, April 26, Nelson told Rogers how to contact Gillooly, the
Flints' International President; that afternoon Rogers helped Gil-
looly arrange the mass meeting held that night. Rogers officiated
in a minor capacity at the meeting; after it was over, he had notices
typed for the next meeting and, with special permission from the
watchman, who said he was• acting on instructions from the re-
spondent, entered the factory at midnight and posted the notices.
On Tuesday, April 27, Rogers helped spread the word about the
second Flints meeting to beheld that evening. At the meeting that
night he distributed Flints applications. The next day, Wednesday,
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 28, Rogers roamed through the plant at will, soliciting Flints
applications for membership, collecting them from employees and
supervisors. There is no doubt that he did this not only with the
knowledge but also with the support of the respondent and its offi-
cials. On that same day, he assisted in arranging the meeting with
Weaver and getting exclusive recognition from the implied check-off
and closed shop for the Flints. Rogers thereafter continued his
campaign for Flints membership, telling McClung, as an instance,
in front of Nelson and Blackwell, that he had to sign up; that "it
was orders from Mr. Weaver." He participated prominently in the
May 20 meeting at the Stonewall Jackson Hotel, insisting, for ex-
ample, that Harshman read the Star Island Agreement four times
before voting on it. After the respondent's offer had. been discussed
at this meeting, Rogers made the motion to accept the proposition.
His motion was carried with near unanimity.
However, the next month, June 1937, Rogers began to depart from
the respondent's plan. He telephoned Weaver and arranged to meet
him at the curb in front of his house for a conference. Rogers then
told Weaver that "the CIO was still making a drive to take the
plant and that he (Weaver) had not complied with the promises
that he had made me for those men and neither had the Flints
complied with the promises that they had made to me for the men
and that I was through fighting for the Flints and that I was not
going to fight the Flats no more." 82 Weaver replied "I hope that
the men don't take the CIO." 83
The promises which Rogers thought violated were made when the
Flints were recognized and were promises for negotiations between
the respondent and the Flints' locals and branches. These negotia-
tions were expected by Rogers to conclude in "local working agree-
ments" which would deal with local working conditions and "general
relief of the situations that were not as they really should be in the
plant." Rogers' insistence in the boys' branch on these local agree-
ments was paralleled by Guy Radcliff's insistence in the operators'
local.
Rogers' position as business committeeman, or business officer, of
G. B. B. A. Branch 566 carried over from the G. B. B. A. into the
Flints, as did the positions of the other officers. He thus continued
to hold office throughout the spring of 1937. However, at about the
time he told Weaver he was dissatisfied with the Flints, he also sub-
mitted his resignation as an officer of Branch 566. He told the
branch at the June meeting that "up to that time, every effort to
88 This statement was not denied by Weaver.
"Weaver testified : "I would deny that statement as alleged to me " But he did not
state what he did reply, nor did he offer any explanation There is thus no account of
the incident to rely upon except that related by Rogers. Since it appears reasonable, we
accept it, as did the Trial Examiner.
HAZEL-ATLAS GLASS COMPANY 399
accomplish the things that the American Flint Glass Workers Union
and the Hazel-Atlas Glass factory had promised on behalf of the
men for the acceptance of that organization into the plant, had been
a total failure." However, the branch refused to accept the resigna-
tion, so he continued in office.
In July 1937 Rogers, Leidy, Shay, and Sigwart met with Nelson
on a grievance arising in the factory. During this conference Rogers
told Nelson that "Mr. Weaver had promised us a local working agree-
ment and that we were determined that we should have a local
working agreement." Leidy, however, volunteered that the Flints
did not believe in a local working agreement. Nelson then turned
to Rogers and asked why he wanted it. Rogers told him that it
had been promised to them and that he wanted it posted in the
department so that when the foreman or the men violated it, they
could see where they violated it and get it straightened out.84 Nelson
thereupon told Rogers that he was too conscientious.85
At about this time Weaver told the Flints' international repre-
sentative, Harshman, that Rogers was talking too much and was
indulging in too many union activities for his own good. Weaver
suggested that Harshman should tell Rogers to cease.86 Harshman
testified that at that time, Rogers "was just engaged in assisting me
in organizing" and that he was then a "very active" member of the
Flints. Thereupon Harshman did speak to Rogers about it, merely
telling him, however, that Weaver had requested him to tell Rogers
that if he did not slow down on his union activities, Weaver was
going to discharge him; that he was too active in the union. Harsh-
man made no recommendation himself.
Rogers continued to press for the local working agreements despite
the warning. He likewise continued to be active on the boys' com-
mittee that met with the management on grievances and items of
dispute. Rogers testified he thought they met at least twice a month ;
sometimes he presented the grievances or requests; sometimes one of
the other committee members did so. He further testified : "I don't
think . . . that we ever had a meeting . . . that we did not stress
the need of a local working agreement."
In September 1937 the committee met with Nelson and David
Blackwell, who wanted some operators demoted from Local 88 to
84 This part of the conversation was not controverted at the hearing
Si Nelson testified : "I never made any statement like that ." However, he did not
give his version of the conversation . His bare denial was rejected by the Trial Examiner
and is not credited by us.
81 Weaver testified that Rogers and Braddock were not remaining at their posts as
much as they should; that they were apparently "roaming the plant"; that he sug-
gested to Harshman " that he just give them a friendly caution." The finding, however,
is based on the testimony of Harshman who has been previously described as a reluctant
witness, and also on the Flints' minutes about Harshman 's comments made at the meeting
held on October 15, 1938, between the Flints and the National Association of Manufacturers
of Pressed and Blown Glassware.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Branch 566. The committee agreed to that. During that same
month there was another meeting to discuss the respondent's lay-off
or discharge of certain employees., The foremen claimed the men
were inefficient. However, Rogers argued that they should be re-
tained, pointing out that some of them had been in the company's
service for as long as 29 years. He said "it was unfair, and there
was nothing fair about it, that these men should be turned out as
they were . . . because of their long years of service to the company."
It is uncontested that the management, however, said it was not run-
ning an orphanage and that if a man could not take care of his work,
then he could not work.
In the fall of 1937 the committee also met with Weaver and Nelson
who had prepared a list of allegedly inefficient men. These the
management wanted to put on an "extra list" and call to work only
when the efficient men had worked their regular quota of time.
Rogers protested that these men had to live the same as the other
employees and that working time should be divided with them. Nei-
ther he nor the Flints' committee approved of the respondent's plan.
However, they were overruled by the respondent and it was tried for
about 3 weeks. On about October 1, the committee requested that the
list be abandoned; the respondent acceded.
In October 1937 the movement to consolidate Local 88 and Branch
566 took on strength. As has been found above, Guy Radcliff and
the Flints' national officers strongly opposed consolidation, while the
respondent favored it. On this issue Rogers sided with the respond-
ent in that he fervently argued for the amalgamation. He was tem-
porarily successful and consolidation was effected. Then Muhleman
came from the Flints' national office and argued against it. Rogers
debated with him, saying that the only thing the Flints had ever
done since they came into Clarksburg was to try to destroy any con-
structive move that the men might make. He said the Flints were
"a company outfit and that they had sold us out for a dollar a head,
before they ever came here to attempt to organize us." Nevertheless
the consolidation movement was broken up.
On October 25, 1937, Rogers was nominated by Flints Branch 566
to succeed himself as business officer of that unit.. However, he rose
in the meeting and declined the nomination. He said they had been
trying to carry out the promises made to them but were never able
to accomplish anything; that the respondent was giving them the run-
around in every way possible; that every constructive move they
might try to make was broken down by the Flints' national officers
in one way or another and that the Flints were not giving the em-
ployees representation at all. Rogers then again announced to the
Flints that he was through with them.
HAZEL-ATLAS GLASS COMPANY 401
However, Rogers continued his membership in the Flints and he
continued to talk to the workers, urging them to "fight for their
rights." He attended every meeting that the Flints held. In addi-
tion to this, and at some subsequent time not revealed by the record,
Rogers also became an active member of the Flats. Whether this was
before or after his lay-off in January 1938 is not clear.81
The respondent's brief notes that "if strict seniority had been
applied" in the January 1938 lay-off, and if Rogers' seniority date
of February 11, 1935, had been used, Rogers would have been laid
off for lack of seniority. This is true, but it does not apply to the
issue at hand. The respondent's personnel record used at that time
stated Rogers was hired on March 1, 1933. Also the list of employees
which Nelson and the foremen used during their conferences gave
Rogers' seniority date as March 1, 1933. Thus, if the foremen had
followed seniority principles on the basis of the information they had,
they would have retained Rogers. Instead they let him go and re-
tained 167 boys who had been employed since March 1, 1933; of these,
154 were still working at the plant in January 1940. It therefore
appears that Rogers was laid off in violation of the seniority practice
which the respondent generally followed.
Some of the respondent's foremen who supervised Rogers' work
at various times testified in criticism of it. Thus Otto Wolfe, under
whom Rogers worked for the last 6 months, said Rogers was not as
good a man as some others; that he could not handle the ware nor
serve as relief boy on fast jobs. Other foremen who had supervised
Rogers at earlier periods said he was slow and "visited around the
factory a good bit and bothered the other boys when they was `a
working."' This testimony, however, was general in character and
was unsupported by any documentary evidence. It was disputed by
testimony of equal value given by Foreman Carder who said: "Mr.
Rogers is one of the best take-out boys that the Hazel-Atlas ever had
in the plant for the past several years. He would stand a lot of
heat during the summer months in the hottest shops in the factory,
and he was a steady worker, and I believe a very honorable man."
Carder testified Rogers was a fast worker; that he was experienced
on a variety of different types of jobs; and that he could take-out on
either the right- or left-hand side, which was difficult. Employee
William Radcliffe also testified that Rogers could work on a "back-
handed machine." He said that occasionally he had been asked to
relieve Rogers because "the job was running so fast that the boy who
was working relief could not take them out." In view of this evi-
dence, and more particularly in view of Rogers' long record of em-
8' On April 6, 1940, he signed a letter to the respondent as the recording secretary of
Flats Local 48.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment and the different character of operations performed by
him,88 we find he was unusually well qualified as a boy.
Ernest Kidd was another employee whom the respondent used as
its instrument in getting the Flints established at the plant. As
found above, he served as an unofficial "protector" at the Flints'
meeting in the high school and he also freely solicited Flints appli-
cations in the plant during working hours. He testified he did this
because: "I was expecting a good job out there after they (the Flints)
came in there, and I got the good job." He was made a floor ma-
chinist. However, before he was able to accept these comparatively
skilled duties, he was assigned "to work under [Delbert Owens] to
try to learn something about them." After he thus "learned some-
thing," he went to work on a floater crew and as a relief man. When
the lay-off came the following January, it did not interest Kidd "one
bit"; his job was secure and he was not laid off, although his own
testimony indicated he was a poor workman. However, after the
lay-off was completed, Kidd resigned from the respondent's employ of
his own volition on March 29, 1938.
We believe that if Rogers had heeded Weaver's warning in July
1937 and, like Kidd, had remained a docile member of the Flints,
pursuant to the respondent's plan, he would not have been laid off
in January 1938. Instead, he became an exceedingly militant mem-
ber of the Flints, even to the extent of finally censuring them for
their alleged bad faith and ineffectiveness. His union activity was
so very prominent, his warning was so direct, and his seniority was
so much greater than that of boys retained or reinstated, that his
militant activity seems the inescapable explanation for his lay-off.
We find that the respondent by laying off G. E. Rogers in January
1938, and by thereafter failing to reinstate him, discriminated in
regard to his hire and tenure of employment, in violation of Section
8 (3) of the Act, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by Section 7
of the Act.
William J. Radcliff first started working for the respondent in
1928, but his last period of consecutive service dates from May 24,
1933. He worked steadily as a boy, doing mostly stick-up and take-
out work. He also ran a lipper, •a cupper, shoved-in, and carried-in.
He did transferring and worked as a relief boy, that is, relieving
other boys during their 10-minute rest periods. He was a fast worker
and could handle jobs other men could not maintain. Thus at one
time he ran the cupper on job #376, a heavy water glass, at the
88
Foreman Riley testified : "Versatility of the boys is the most important thing in
production."
HAZEL-ATLAS GLASS COMPANY 403
rate of 42 per minute and turned out 13,200 good pieces of ware
in one shift.
As stated above, Foreman William Blackwell testified that in
selecting those to be laid off, the decisions became difficult because
"we were getting all about the same kind of boys, that is, of the
same equal." Regarding Radcliff, Blackwell testified : "The way it
was, at that time we come down to the place where all these fellows
was on the same equal, and we had to get some of them off and
later to get the list down to 45, and on account of him being single,
and retaining his brother on, he was the one to be laid off." Rad-
cliff's own foreman, Otto Wolfe, testified : "Well, he was about the
last, along the last boy decided on, and when we got down to where
we had to lay some boys off we had to do it. By him being single,
and his brother working, I decided to lay him off."
However, if the foreman decided Radcliff's case on the basis of
his marital status or his having a brother working in the plant, they
violated Nelson's instructions, for he had told them that "where
they apparently had the same efficiency, then their length of service
was to govern that. The one with the greatest length of service was
the one to be retained." Radcliff's seniority was admittedly sufficient
to entitle him to his job. In fact, he had greater seniority than 154
of the boys who were retained, of whom 142 were still working at
the plant in January 1940.
Although Nelson's lists noted the marital status of each worker,
nevertheless neither his instructions nor the record indicate this was
an important factor. Nelson himself testified that only in respect
to Radcliff was marital status "even mentioned." Otto Wolfe could
came only one other employee on his shift whose marital status had
been considered. That was B. A. Thrash, who was single and who
was not retained. However, his hiring date was April 2, 1934; he
was thus not entitled to retention because of insufficient seniority.
Despite this deficiency and his unmarried status, Thrash was rein-
stated within 2 months after his lay-off. Moreover, the respondent's
records show that of the 45 men retained on the Otto Wolfe-William
Blackwell shift, 8 were single.89 The fact that the respondent re-
tained single men belies its claim of a policy against retaining such
men. It thus appears that Radcliff's unmarried status could not
have been the reason he was laid off.
The question of brothers working in the plant had about the same
effect on the selections as did their marital status. In two cases
where brothers were working, one of the brothers was laid off. How-
ever, in a substantial number of other cases, two or more brothers
were retained at the plant, either by not being laid off in January
"Houston , Gould, Douglas , Watson, Leasburg, Riley, Barnes, and Mayfield.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1938 or by being reinstated in the next few months. Examination
of the record reveals that 32 sets of 2 or more people with the same
family names were either retained or rehired by the respondent after
the lay-off. Of these 32 sets of men so employed, at least 12 were
brothers. Whether there were more than 32 duplications of name
and whether there were more than 12 sets of brothers is not shown.
However, from these minimum figures, it appears that being a brother
to a man working in the plant did not militate seriously-if at all-
against one's being retained or reinstated. We therefore do not be-
lieve that Henry Radcliff's employment was the reason for the lay-off
of William Radcliff.
On the other hand, Radcliff had long been active in the Flats
and then the Flints. As early as February 1937, he spoke to E. R.
Cutwright, of the Flats' local at the Rolland plant, about the Flats
organizing the respondent's plant. When the Flats later announced
their Masonic Temple meeting by distributing notices at the factory
gates, Radcliff took two or three notices inside the plant; one of
them he carried back through the packing room and mould shop,
holding it up so the employees could read it. He himself joined
the Flats in the middle of April. At the Masonic Temple meeting,
Radcliff got into an argument with Myers, Nelson's assistant, as to
whether the C. I. O. would be able to slow down the company's
production. Radcliff said the C. I. O. could if anybody could.
The next day, April 22, 1937, he joined Cutwright in soliciting
Flats memberships outside the company gates. They set up a card.
table near the roadway for their literature and talked to the em
ployees as they went by. While they were doing so, Weaver drove
past in his car; he noticed Radcliff and Cutwright. Radcliff also
attended the Flats' Carmichael meeting on April 25 and was there
when the respondent's officials, Nelson, Sims, and Brown were stand-
ing in the back of the hall observing those present. Radcliff solicited
members at this meeting also. He attended the Flints' meeting held
in Fraternal Hall on April 26. When Preacher Williams attempted
to bring order to that meeting by giving a prayer, Radcliff climaxed
the prayer by shouting : "Give us our freedom. We 'want the CIO."
The next night he went to the Flints' meeting in the high school.
At first he was not allowed in the auditorium ; the watchman said
he was a C. I. O. and a Flat. Later, he and other Flats members
were let in by the sheriff.
Radcliff did not join the Flints until he was told he had to in
order to hold his job. Even then he refused to sign a card, but
did permit a card to be turned in for him. However, he continued
to attend the Flats' meetings held every Wednesday night in Fra-
ternal Hall. After the closed-shop contract was enforced on July
HAZEL-ATLAS GLASS COMPANY 405
22, the attendance at these meetings decreased; in August 1937 they
were abandoned. Radcliff was on the committee of less than a dozen
men who carried on thereafter for the Flats. He also attended the
Flints' meetings and participated therein. In October 1937 he joined
in the protest about the respondent's installation of automatic ma-
chines and was partly responsible for the Flints sending a committee
to Washington, D. C., to see if anything could be done about that.
The record indicates that the respondent knew of Radcliff's Flats
activities. Myers, Weaver, Nelson, Sims, and Brown saw him so
engaged. Also his foreman, Creed Wolfe, knew he was soliciting
Flats memberships in 1937. On several occasions a fellow employee
named Ash came to Radcliff and got Flats application blanks for
someone else to sign, but never returned them. Finally Radcliff
creased one of the cards which he gave Ash. A few minutes later
Foreman Wolfe handed the card back to Radcliff, saying : "Here,
Bill, is your card."-
In view of Radcliff's seniority and admitted ability which ordi-
narily would have entitled him to retention, in view of his prominent
and extended union activities, and in view of the unpersuasive nature
of the respondent's reasons advanced at the hearing for laying him
off, we find that the respondent laid Radcliff off in January 1938
because of his union activities.
We find that the respondent by laying off William L. Radcliff in
January 1938, and thereafter failing to reinstate him, discriminated
in regard to his hire and tenure of employment in violation of Section
8 (3) of the Act, and interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by Section 7
of the Act.
Carl K. Reed, Jr., started with the respondent in 1916 and worked
for 4 years as a carry-in boy and take-out boy. From about 1932
to 1935 he worked as a take-out, stick-up, carry-in, and transfer boy.
On March 5, 1934, he again started work with the respondent and
worked continuously thereafter until the January 1938 lay-off.
During this period he ran a cupper, a lipper, worked in the mainte-
nance crew, and also served as take-out, stick-up, transfer, and
floor boy.
Reed joined the Flats at the Masonic Temple meeting on April 21,
1937. He, too, helped organize the employees for the Flats. He dis-
tributed cards and solicited memberships in the poolrooms and on the
streets in Clarksburg. He also helped in the distribution of cards near
the Company's gate. When he got applications signed, he gave them
to William Radcliff. He attended the Flats' meetings regularly. Sev-
eo This was not controverted except by a showing that Creed Wolfe had died before the
bearing commenced.
451269-42-vol. 34-27
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral times when he went out to lunch someone wrote "CIO" in chalk
on a tin shield which he used in front of the glazier to protect him-
self from the heat; once someone wrote "CIO" on the back of his
shirt, likewise in chalk. Reed testified he did not know who did this.
Foreman Otto Wolfe told Reed that if the C. I. O. took possession
of the plant, the respondent would close up and "the hinges would
rust off." Around May 1, 1937, Otto Wolfe told Reed : "Eventually,
you CIO boys are all going to lose your jobs." At about the middle
of May a salesman gave Wolfe some samples of tobacco. Wolfe did
not want them and gave them to Reed ; Reed thereupon gave Wolfe
a Flats application card in whimsical exchange. Wolfe returned the
card and remarked : "Sooner or later all you boys are going to be
ousted." 91
Just before the lay-off Reed and his foreman, Creed Wolfe, had an
argument about the amount of work Reed was getting; as a result of
this, Reed complained to David Blackwell and Nelson. He was then
transferred to Grover Junkins, who was his foreman when the lay-off
came. Junkins testified Reed was laid off because : "I kind of con-
sidered that he was not as good a boy as we was keeping ahead of
him ... I thought I had better boys." Dissipating the effect of this
language, however, is Junkins' testimony on cross-examination, in the
following colloquy :
Q. And the work he was called upon to perform by you, I
take it that that was satisfactorily done?
A. Thoroughly.
The respondent's brief points out that if strict seniority had been
applied during the lay-off, Reed would not have been retained.
This is true. The respondent, however, did not apply strict seniority,
although it was an important factor that was considered. Lack of
seniority certainly did not occasion Reed's lay-off since the respondent
retained 99 boys who had less seniority than Reed, 91 of whom are
still working for the respondent.
Reed was closely associated with the Flats' organizers during the
drive of that union, and was active in its campaign although he did
become an officer. The respondent's foremen seemed to identify him
as part of this group. There was no particular complaint evidenced
against his work. In fact Foreman Carder testified he was "very
efficient . . . and none of the boys knew more about that line than
he did." We believe and find that the respondent did not lay Reed
off in January 1938 because of his seniority or his work, but because
of his activity on behalf of the Flats.
We do not credit Wolfe 's denials to the foregoing remarks attributed to him. Cf.
footnote 67 supra.
HAZEL-ATLAS GLASS COMPANY 407
We find that the respondent by laying off Carl K. Reed, Jr., in
January 1938, and thereafter failing to reinstate him, discriminated
in regard to his hire and tenure of employment,'thereby discouraging
membership in the Flats, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
Howard Gaines started work for the respondent in 1921, and had
since been continuously employed by the respondent from June 1,
1922, until the time of his lay-off on January 19, 1938. Gains worked
3 years as a carry-in boy; then became a stick-up boy. In about
1930, he worked 6 months as an extra operator. Then he worked
for over a year as an operator. He has also done work as a floor
machinist. Most of the time Gaines, however, worked as a boy. He
was considered a fast boy inasmuch as he removed castor cups, which
was considered a fast job.
Gaines testified that he asked between 200 to 300 of his fellow
employees to join the Flats, and that he secured about 35 signed
application cards. He solicited membership in the plant itself, out-
side the plant, "in the pool rooms, wherever I saw a man, if I didn't
know his name and I recognized his face and I knew that he worked
there, I asked him." Gaines openly associated with Ike Lewark,
prominent Flats organizer'92 on at least one occasion while Lewark
was signing up memberships. Moreover, Gaines argued the cause
of the Flats at the plant in the presence of his foreman, Grover
Junkins. We are satisfied and find that Gaines was an active Flats
member whose activities on behalf of that union were brought home
to the respondent. It is true that Gaines' testimony as to his union
activities, particularly as to attendance at Flats meetings, was, as
found by the Trial Examiner, "vague." We believe, however, that
this deficiency in Gaines' testimony is explained by the circum-
stance that Gaines lived at the town of Wilsonburg, at some distance
from the Flats meeting place in Clarksburg, with the result that
he could not regularly attend Flats meetings. In any event, the
intensity of Gaines' union activity is only material as it tends to
prove the respondent's motive in severing Gaines' employment. On
this issue, we find that the respondent was well aware of Gaines'
open espousal of, and solicitation on behalf of, the Flats.
In determining the respondent's reason for laying off Gaines in
1938, we note that Gaines' unusually-long seniority (almost 16 years)
would normally have entitled him to remain at work at the plant and
survive the wide-scale lay-off of boys. Two hundred forty-six of the
boys retained in January 1938 had less seniority than Gaines; of
these 231 were, at the time of the hearing, still employed by 'the re-
e0 And president of Flats Local #6 at the Rolland Glass Company in Clarksburg.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent. The respondent contended that, and introduced some testi-
mony tending to show, Gaines was lazy and a slow worker. Gaines,
nevertheless, was complimented on his work by his foreman, Grover
Junkins, who admitted at the hearing telling Gaines after his lay-off
that "when things started up he would get back on." Carder, who
had opportunity to observe Gaines' work, testified that Gaines was not
lazy and "could do the different jobs." We find that Gaines was a
competent workman and not laid off for insufficiency of merit. We
deem persuasive on this issue Gaines' long service record of work for
the respondent at a variety of occupations. The respondent made
some effort to show that partial causation for Gaines' lay-off was that
Gaines had once reported to work intoxicated in May or June of 1937,
more than 6 months before the lay-off. Assuming without deciding
that Gaines had once reported so intoxicated'93 the record makes ap-
parent that this contention is specious. Foreman Riley, the respond-
ent's' witness, admitted at the hearing that Gaines "was not laid off
because he came out to work drunk one time," that this incident was
"not marked down against him as a black mark." Riley_ also stated
at the hearing, "I did not hold it against Howard Gaines." We find
that the above-described incident had no bearing on Gaines' lay-off
in January of 1938.
In view of all the circumstances, giving weight to the unsatisfactory
character of the respondent's explanations for the lay-off of Gaines,
Gaines' unusually long seniority in working for the respondent,
Gaines' open espousal of the cause of the Flats which was known to
the respondent, and the respondent's pattern of discrimination against
other employees who assumed the cause of the Flats, we find that
Gaines was laid off for his Flats membership and activity.
We find that the respondent by laying off Howard Gaines on Jan-
uary 19, 1938, and thereafter failing to reinstate him, discriminated in
respect to his hire and tenure of employment, thereby discouraging
membership in the Flats and interfering with, restraining, and co-
ercing its employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
Flemie D. Whytsell started work for the respondent on April 9,
1928, and worked continuously thereafter for the respondent until the
1938 lay-off. At first Whytsell helped repair a tank; then he worked
in the packing room and the box shop. Soon thereafter he was trans-
ferred to the production department where he worked until the lay-
e3 Foreman Riley testified that Gaines was the only employee he knew who had reported
to work intoxicated and that he remembered "that [Gaines ] had been drinking," but
Riley in the next interrogation by counsel inconsistently testified , "I make it a rule I
don't tolerate drinking on my time ; I send them home If they come out drinking on
my time I send them home." Gaines admitted that at the time he was sent home he
had some beer but stated he told Foreman Riley "he could do that work all right,"
pot protesting, however, when Riley asked him to leave.
HAZEL-ATLAS GLASS COMPANY 409
off. He, was a carry-in and stick-up boy, and he ran cupper and Lipper
machines and relieved other boys during rest periods. Whytsell re- -
ceived a number of compliments about his work from his foreman.
Carder testified that Whytsell could handle fast jobs and that he re-
garded him as "an A-1 stick-up boy." We find that Whytsell was a
well qualified boy, and not an inefficient worker as contended by the
respondent '
Whytsell joined the Flats on or about April 15, 1937, thereafter
taking an active part in its affairs. Whytsell passed out cards, signed
up members, "talked up C. I. O. inside the pool halls, on the sidewalk
and in my friends' homes and also in my home." He also distributed
flyers announcing C. I. O. meetings outside the respondent's grounds
at the time of rotation of shifts and solicited membership during the
rest periods at the plant, where Foreman Ezra Riley saw him so en-
gaged. Whytsell testified that when he received notice that he would
be laid off he asked his foreman, Riley, why this was taking place.
Riley replied, "The Union is not running this Company, but the Com-
pany officials are running it, and fellows we keep on are the fellows
we can get along with and will do as the Company says." Although
Riley denied making this remark, for the reasons above stated in
commenting on the testimony of Riley and other foremen, we credit
the testimony of Whytsell, who seems to us to have been a credible
witness, and find that Riley made the remark attributed to him. Such
finding is consonant with testimony of Lloyd Phares to the effect that
Foreman Riley said of Whytsell, "he is too much for the C. I. O. and
is always going to the- Company with the C. I. O.... we can-
not tolerate anything like that." We find further that Riley made
the remark attributed to him by Phares 95 While there is some un-
certainty in Whytsell's testimony as to various Flats meetings, Whyt-
sell, like Gaines, lived out of town and did not attend such meetings
as regularly as other employees, although attending, as the Trial Ex-
aminer found, "whenever he could, or whenever he was in town." For
the reasons stated above in discussion of the case of Howard Gaines,
we do not deem Whytsell's irregular attendance at Flats meetings
material to our disposition of this case. We find that the respondent
was well aware of Whytsell's activity on behalf of the Flats.
Whytsell would normally have-been retained because of his seniority
which far exceeded that of the average employee. Two hundred eight
of the boys retained had less seniority than he. Of these, 194 were
still working for the respondent at the time of the hearing in this
proceeding. We have found above that Whytsell was a well quali-
94 At the hearing there was testimony from the respondent's foremen tending to show
that Whytsell was slow and not a versatile worker. Upon the entire record, and for
reasons elsewhere stated, we disbelieve the foremen testifying to this effect.
95 Upon the entire record we do not credit Riley's denial of the foregoing.
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled employee, and we do not credit the respondent's explanation that
Whytsell was laid off because of inefficiency, giving consideration also
in reaching this result to Whytsell's long service for the respondent in
a variety of functions. We believe under all the circumstances and
we find that the respondent laid off Flemie D. Whytsell on January
19, 1938, and thereafter failed to reinstate him because of his activity
on behalf of the Flats.
We find that the respondent by laying off Flemie D. Whytsell on
January 19, 1938, and thereafter failing to reinstate him, discrim-
inated in regard to his hire and tenure of employment, thereby dis-
couraging membership in the Flats and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
6. The lay-off of and failure to reinstate Francis W. Flynn.
Flynn first started working for, the respondent in 1910, and worked
from then until 1923; from July 7, 1933, he worked continuously
until the lay-off in January 1938. Flynn was a machine operator;
he operated the "0. A." machine, which the respondent gradually
abandoned and replaced with the more modern "M. P. L." machines.
In February 1935 Flynn's right hand was injured while he was
running a machine and he lost the thumb of that hand. However,
he continued to operate thereafter.
The replacement of the "0. A." machines by the "M. P. L."
machines was completed by the spring of 1937. Flynn operated
the new machines for a time but did not have much success with
them. When Nelson became production manager in July 1937, he
discussed Flynn with David Blackwell and decided to transfer Flynn
to the maintenance crew under Lynch. -
On Lynch's crew there were C. E. Purnell, Guy Klein, Pickens,
and Flynn. Purnell and Klein had been with Lynch for the longest
time and "had begun to get the idea and understand the machines."
Flynn was not so experienced in repair work. Lynch testified Flynn
"was capable of doing minor things, such as writing an order,
going to the store room and bringing up things, filling lubricators
and wiping grease and dirt off. We had one large lubricator that
had glass sight feeds on it and we kept this glass clean, and minor
things of that kind." Flynn did considerable oiling and lubricating
of machinery and cleaning machines when they were not in operation.
In January 1938, Pickens and Flynn were laid off from Lynch's
crew; Purnell and Klein were retained. Flynn's work of filling
lubricators has since been replaced by a system of siphons that run
to the lubricators from tanks that have to be filled only every 8
HAZEL-ATLAS GLASS COMPANY 411
or 10 hours; these are now taken care of by a boy in the production
department . Flynn's job has been absorbed by others and is not
done now by any one employee.
Flynn joined the Flats on Friday , April 23, 1937 . He did not
attend the Masonic Temple meeting, but he was present at the Flats'
Carmichael meeting. He testified that, he then solicited members
for the Flats in the poolrooms , on the streets , at the factory, and
in the homes . "I didn't care what anybody saw. I was out in the
open with it," he said . This was undoubtedly true. Nevertheless
it is difficult to tell the extent of Flynn 's union activities because
of the character of his testimony . He was a voluble witness, ready
to volunteer , and rested largely on generalities . Some of his
testimony was improbable.
Flynn testified that "every foreman in the plant" observed him
soliciting Flats members . Even when cautioned by counsel that
"that is a lot of foremen ," he insisted that 50 foremen had so observed
him. Flynn also testified that Foreman Nicholson told him every
day : "They are going to fire every darn one of you. . . . That was
brought up every day." Yet Nicholson was a relief foreman and
thus did not work with Flynn every day. When asked to estimate
in round figures the number of times foremen had spoken to him
about his Flats activities , Flynn replied : "500 times, and then I
would miss it . . . I am underestimating ." Flynn also testified he
saw about 100 feet from the watchbox in the plant a large company
notice, as big as a door , with letters the size of a man's hand, and
containing about one paragraph of the above -described notice which
Weaver issued on March 29, 1937 . Yet no one else saw such a notice.
Flynn also testified that 90 percent of the people at the Flints'
Fraternal Hall meeting were women and that the Flats' president,
McCabe, spoke there. • But these statements are in opposition to all
the rest of the testimony. Because of these exaggerations and in-
accuracies , we find it impossible to determine the extent of Flynn's
union activities or prominence in union affairs.
Because of Flynn 's injury to his band, his demotion from the
position of operator , and his relative inexperience and his minor
duties in the maintenance crew, and because of the uncertainty of
his union activities, we find that the respondent laid him off in
January 1938 because of a curtailment in production and not because
of his union activities.
7. The discharge and refusal to rehire Harry E. Carder
Carder first began to work for the respondent in 1904 at the age
of 11 years. He worked during school recesses until about 1919, at
which time he left the respondent to work in other glass factories.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this time he joined the G. B. B. A. and met Campbell, now
G. B. B. A. vice president. He was also a Flints member at one
time, while working in Louisiana. He returned to the respondent's
Clarksburg plant in May 1929 and worked there continuously until
December 1939. At the time of his discharge he was a foreman
in the hot-end department and had been for over 10 years.
In December 1939, the operators' local had a disagreement with
the respondent regarding the cleaning of their machines. When no
adjustment was reached, the operators' local called a strike com-
mencing on Tuesday, December 12, 1939. The operators reporting
on the 6 a. in. shift that day stopped their machines, refused to
work, and walked out.
Nelson then went to Dwight Radcliff, chairman of the Boys'
Branch of the Flints, and asked what the attitude of the Boys'
Branch was concerning the strike. Radcliff replied: "Well, I won't
operate," and walked away. Weaver then called John Leonard,
also in the Boys' Branch, and asked him if he would have the boys
meet with him (Weaver) in the packing room. Weaver and Nelson
then walked back to the packing room. However, none of the boys
followed. So Weaver again asked Leonard to tell the boys that he
wanted to talk to them and that he would be in the packing room
to talk to anyone who wanted to listen. This time some of the boys
came. Weaver spoke about the causes of the strike and said that if
any of them wanted to work, there were jobs available. Thereupon
some of the boys went back to work, not as operators, however, but
as boys.
Nelson then called Foremen Trent, Junkins, and Carder into his
office.96 He mentioned an important and urgent order the respondent
had in the plant and asked if any of the foremen had any objections
to operating the machines. Trent and Junkins consented; Carder
made no reply. All the foremen then went out into the plant and -
made some changes in the machines so that this special order could
be run even though the rest of the production stopped. Carder
assisted in making these preparations.
Carder then went to Nelson and said: "Nels, you are having
labor trouble and under the conditions, I can't work up there, and
I have not operated in 22 years. I hope there are no hard feelings."
Nelson according to his own testimony then replied : "Well, Harry,
there is no hard feelings on my part, but I would suggest that you
get your hat and coat and leave the plant."
Nelson then called to Weaver and told him Carder did not want
to work. Weaver approached the tanks and met Carder, who said
98 Another foreman, Joe McIntyre, was also working in the plant that morning, but
Nelson overlooked him in the confusion.
HAZEL-ATLAS GLASS COMPANY 413
to him : "I wasn't hired to operate., When I came back to this
plant, I - had certain definite understandings with John Kirkpat-
rick"97 that I would not have to operate a machine. Weaver testi-
fied that he thereupon assumed that Nelson had told Carder to
operate a machine and that Carder was refusing to do so. Weaver
was very anxious to get production started again in order to preserve
business. He therefore told Carder, in the words of his own testi-
mony, "that I presumed that if he did not care to perform the only
work which was available for that turn, and the work that the other
shift foremen was performing, that he was quitting, and that if that
was the situation, I would recommend to him that he leave the plant
promptly, because we were in a state of emergency, and I certainly
did not have time to go into any differences of opinion or to discuss
what he and John Kirkpatrick years ago might have had in the
way of an understanding." Carder replied that he was not quitting;
that he was not an operator and that the plant was having labor
trouble and that he had not operated for many years. He thereupon
left the plant and went home.
On Thursday night, December 14, 1939, a conference started be-
tween the respondent and the Flints' officials which ended in a
settlement of the strike during the early hours of Friday morning,
December 15. The conference was devoted entirely to the problem
of getting the men back to work. It was finally agreed that "every-
thing was returned to normal operation" and that the operators were
to return to work.
As the conference was ending, Muhleman, the Flints' representa-
tive, said : "Mr. Weaver, I wish you would think about Mr. Carder,
and see what you could do for him. I would like to see him back
at work." Weaver testified : "I told Mr. Muhleman that Mr. Carder
had not been a member of his union, and I didn't see that he was
the proper person to represent Mr. Carder, and I told him that if
Mr. Carder wanted to talk to me, he could see me through the regular
channels, coming to my office and meeting me at a time it was
mutually convenient."
That Friday evening, Muhleman met Carder on the street and
said: "Harry, go over to the plant. Mr. Weaver wishes to see you
and make arrangements and talk it over with you about going to
work."
On Saturday morning, December 16, 1939, Carder went to Weaver's
office and said to him : "Mr. Weaver, I understand that you sent for
me, and wish to see me with regard to going back to work, and
talking it over." Weaver replied : "Harry, you are mistaken. I
Aid not send for you. I presume you have either talked to Mr.
97 Former plant superintendent.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Muhleman or some member of the committee who was present when
your name was discussed, and the arrangement was if you wanted to
see me, you could come to the plant and see me just like anyone
else might come to see me." Weaver testified : "I further told him
that if his presence there was on the basis that I had sent for him, he
was mistaken, and I considered the conversation at an end." There
was then some miscellaneous talk which Carder concluded by saying :
"I guess, Mr. Weaver, there is nothing more to discuss, and I might
as well go home." Weaver replied:-"That is right, Harry."
Carder thereupon departed. He has not since been employed by
the respondent. On May 24, 1940, he wrote a letter to the respondent
saying : "I wish to renew my demand that I be reinstated to my
former job as foreman."
The record thus indicates that Carder refused to do the work
of an operator when the operators went on strike; that he was then
sent home ; that when the strike was settled and the operators re-
turned to work, the Flints requested Carder's reinstatement also;
that the respondent refused to discuss the matter with the Flints
and the next day refused to discuss it with Carder; that it thereby
refused to reinstate Carder. The record further shows that if the
Flints' request had been granted, he would have returned to work
on Friday, December 15, 1939, upon the reopening of the plant.
It is clear and we find that the respondent's refusal to reinstate
Carder was made because of Carder's sympathy for 98 and assistance
rendered the strikers 99 through his own refusal to work.
Regarding Carder, the respondent states in one of its briefs:
We deny the right of a foreman, who was neither a member of
the Union, nor eligible for membership therein, to leave his
employer in the lurch in such an emergency situation, without
suffering the consequences.
This contention, however, in so far as it is based on lack of member-
ship in the Union, is clearly without merit. The Board has fre-
quently held that discrimination to discourage union membership
is no less a violation of Section 8 (3) of the Act when it is directed
against a non-union employee.- Likewise, ineligibility for member-
98 Matter of Rapid Roller Co., a corporation and Local 120, United Rubber Workers of
America, of giated with the C I. 0 , 33 N. L. R B, 557.
w The respondent moved at the close of the hearing that a finding be made that the
strike was illegal because it was allegedly in violation of the Star Island Agreement.
The Trial Examiner denied this motion in his Intermediate Report on the ground that
the matter is irrelevant . We affirm the ruling of the Trial Examiner.
100Matter of North Shore Dye House, Inc et al . and Cleaners and Dyers Local 183 of the
Am. Cl. Wkrs. of Am., 24 N. L. It. B 507; Matter of Mexia Textile Mills anc Textile!
Workers Organizing Committee, 11 N. L. R. B. 1167, enf'd, Mexia Textile Mills v. National
Labor Relations Board, 110 F (2d) 565 (C. C. A. 5) ; Matter of La Paree Tlndewgarment
Company, Inc. and International Ladies' Garment Workers' Union, Local No. 166, C. I. 0.,
17 N. L. It. B. 166; Matter of Berkshire Knitting Mills and American , Federation of
HAZEL-ATLAS GLASS COMPANY 415
ship is irrelevant. It is well recognized, for example, that members
of one union or even non-union employees, may join sympathetically
in the activities of another union in which they are not eligible for
membership, or may even assist the employees of another employer,
without relinquishing the protection afforded by the Act 102
The respondent's statement also suggests that because Carder was
a foreman , he had no right to join in concerted activities with the
striking employees. It is true that we have frequently held foremen
to be supervisory employees, whose interests lie with the management
and for whose acts the employers are responsible. However, it is
also true that foremen frequently do join labor organizations and
that in many respects their interests lie with the employees as well
as with their employers. The Act does not exclude foremen from
its protection, but instead applies, by virtue of its own wording, to
employees generally, i. e., to "any employee." Both the Board and
the courts have held that foremen come within this category 103 Thus
in the case of Skinner and Kennedy, the Circuit Court of Appeals
for the Eighth Circuit said :
It is first argued that Eckert is not an employee within the mean-
ing of the Act. The contention is that being a foreman he is an
employer and not an employee. Section 2 (2) of the Act is
relied upon wherein an "employer" is defined to include "any
person acting in the interest of an employer." Section 2 (3), of
Hosiery Workers, Branch #10, 17 N L R B 239; see also Matter of Air Associates,
Incorporated and International Union United Automobile Workers of America, Local
No. 365, affiliated with the C 1. O , 20 N L R B 356; enf'd as mod., National Labor Rela-
tions Board v. Air Associates, Pncorporated , 121 F ( 2d) 586 , decided July 9, 1941,
(C C A 2).
102 Matter of Club Troika , Inc., and Hotel and Restaurant Employees Alliance , Local
et at, 2 N. L . R B. 90, 94; National Labor Relations Board v. Bites - Coleman Lumber Co ,
98 F (2d) 18 C C. A 9 enf 'g Matter of Riles - Coleman Lumber Company and Puget Sound Dis-
trict Council of Lumber and Sawmill Workers , 4 N. L R B 679. In the latter case, the
United States Circuit Court of Appeals for the Ninth Circuit noted : "Particular objection
is made to the order requiring reinstatement of two of respondent 's foremen who walked off
with the others , but who, by reason of their supervisory positions or location in the woods,
could not have belonged to the Union even had they so desired The order was proper "
Cf: Matter of The Niles Fire Brick Company and United Brick Workers L. I U No. 198,
affiliated with the Congress of Industrial Organizations , 30 N L R B 426
10 Matter of Skinner and Kennedy Stationery Company and St Louis Printing Pressmen's
Union No. 6, Inc. et al 13 N . L. R B. 1186, 1193, enf'd National Labor Relations Board
v. Skinner it Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8) ; Matter of
Atlantic Greyhound Corporation and Brotherhood of Railroad Trainmen, 7 N. L R B 1189,
1196; Matter of Eagle-Picker Mining it Smelting Company, etc . and International Union
of Mine, Mill it Smelter Workers, etc., 16 N. L. R . B 727, enf'd as mod , Eagle Picker
Mining it Smelting Co v National Labor Relations Board, 119 F. (2d) 903 (C. C. A. 8),
rehearing den , June 9 , 1941 ; Matter of North Shore Dye House , Inc, et al. and Cleaners
and Dyers Local 183 of the Amalgamated Clothing Workers of America , 24 N L R B. 507,
Matter of Theurer Wagon Works, Inc. and International Union, United Automobile Work-
ers of America, Locals 259 and 374 , 18 N. L. R. B 837 . Matter of Crossett Lumber Company
and United Brotherhood of Carpenters and Joiners of America, etc, 8 N L R B. 440E
472; Matter of The Warfteld Company, etc and International Union of Operating Engineers,
Local No. 399, et al, 6 N L. R. B. 58; Matter of Chambers Corporation and Allied Stove
Mounters at al., 21 N L . R B. 808 ; National Labor Relations Board v. Biles -Coleman Lumber
Co., see footnote 101, supra.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act is ignored. It provides that "The term `employee' shall
include any employee." There is no inconsistency in these pro-
visions when facts are taken into consideration. A foreman, in
his relation to his employer, is an employee, while in his relation
to the laborers under him he is the representative of the employer
and within the definition of Section 2 (2) of the Act. Nothing in
the Act excepts foremen from its benefits nor from protection
against discrimination nor unfair labor practices of the master.
As a striking employee Carder was entitled to reinstatement at the
end of the strike, unless his place was already filled.104 We find the
respondent's refusal to reinstate him because he joined in the strike
constituted a discrimination as to his tenure of employment by which
the respondent discouraged membership in labor organizations, and
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
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 de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act and to
restore as nearly as possible the conditions which existed prior to the
commission of the unfair labor practices.
We have found that the respondent discharged Thomas Berry on
May 24, 1937, and that the respondent failed to reinstate said Berry
in June 1937 and on March 15, 1938, failed to reinstate Carl C.
McClung, Lloyd L. Phares, Guy J. Radcliff, and James C. Casto because
of their membership in and activity on behalf of either the Flats or
the Flints. We have further found that the respondent refused to
reinstate Harry E. Carder on December 15, 1939, because of his ac-
tivity on behalf of the Flints. We shall therefore order that the
respondent offer each of these men immediate and full reinstatement
104 National Labor Relations Board v . Mackay Radio & Telegraph Company, 304 U. S 333,
iev'g 92 F. (2d) 761, which aft'd 87 F. (2d) 611 ( C. C. A. 9 ) which set aside Matter of
Mackay Radio & Telegraph Company, a corporation and American Radio Telegraphists'
Association, San Francisco Local No. 3, 1 N. L R. B. 201.
HAZEL-ATLAS GLASS COMPANY 417
to the positions which they would have otherwise received, without
prejudice to their seniority and other rights and privileges.105 We
shall order the respondent to make whole Carl C. McClung, Lloyd L.
Phares, Guy J. Radcliff, James C. Casto, and Harry E. Carder for
any loss of pay they may have suffered by reason of the failure to
reinstate them, by payment to each of them of a sum of money equal
to the amount he normally would have earned as wages from the date
of the the discriminatory failure to reinstate him to the date of the
offer of reinstatement, less his net earnings 106 during said period.
Since the Trial Examiner found that the respondent had not dis-
criminated against Thomas Berry, we shall in the exercise of our dis-
cretion order the respondent to make Thomas Berry whole for any
loss of pay he has suffered by reason of his discharge and the respond-
ent's failure to reinstate him by payment to Thomas Berry of a sum
of money equal to the amount he would normally have earned as wages
from May 24, 1937, the date of his discharge, until November 12, 1940,
the date of the Intermediate Report, and from the date of our order
to the date of the offer of reinstatement, 107 less his net earnings 108 during
said period.
-We have also found that the respondent laid off -and* failed to
reinstate G. E. Rogers, William J. Radcliff, Carl K. Reed, Jr.,
Howard Gaines, and Flemie D. Whytsell on January 19, 1938, be-
cause of their membership in or activity on behalf of either the
Flats or the Flints. It will therefore be ordered that the respondent
offer each of these men immediate and full reinstatement to the posi-
tions from which they were laid off, or equivalent positions, without
prejudice to their seniority and other rights and privileges. We shall
106 Any existing valid closed -shop contract between the Flints and the respondent offers
no obstacle to our order of reinstatement since the stipulation of partial settlement of
the case referred to above, entered into by the respondent , the Flints , the Flats, G. E.
Rogers, on behalf of himself and other complainants , and the Board , expressly provides
in part:
In the event that the American Flint Glass Workers Union is chosen as the
collective bargaining representative by the employees in the election heretofore
referred to, it is agreed that . . . the other complainants named in the complaint
[those excepting Carder whose cases of alleged discrimination are discussed above]
should it ultimately be determined in this proceeding that the termination of their
employment was in violation of the National Labor Relations Act, shall also be
given the opportunity to become members of the American Flint Glass Workers
Union within 30 days after such determination
1°e By "net earnings" is meant earnings less expenses , such as for transportation
room, and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440.
Monies received for work performed upon Federal , State, county , municipal , or other
work-relief projects shall be considered as earnings See Republic Steel Corporation v.
National Labor Relations Board, 311 U. S. 7.
IDT Matter of E. R. Haffelfinger Company, Inc and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R . B. 760.
lox See footnote 106, supra.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order the respondent to make whole G. E. Rogers, William J. Rad-
cliff, and Carl K. Reed, Jr. for any loss of pay they may have suffered
by reason of their lay-off, by payment to each of them of a sum
of money equal to the amount he normally would have earned as
wages from the date of his lay-off to the date of the offer of rein-
statement, less his net earnings 109 during said period. Since the Trial
Examiner found that the respondent had not discriminated against
Howard Gaines and Flemie D. ,Whytsell, we shall, in the exercise
of our discretion, order the respondent to make Howard Gaines and
Flemie D. Whytsell whole for any loss of pay they have suffered by
reason of their lay-offs, by payment to each of them of a sum of
money equal to the amount he normally would have earned as wages
from the date of his lay-off until November 12, 1940, the date of the
Intermediate Report, and from the date of our order to the date
of the offer of reinstatement, less his net earnings 110 during such
period.
We have found that the respondent did not lay off, terminate the
employment of, or refuse to reinstate Francis W. Flynn because of
his membership in or activity- on behalf of either of the labor or-
ganizations here involved. We shall therefore order that the com-
plaint be dismissed in so far as it alleges that the respondent has vio-
lated Section 8 (3) of the Act with respect to Francis W. Flynn.
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 Glass Bottle Blowers Association of the United States and
Canada, the American Flint Glass Workers Union of North America
and Locals 5, 54, and 88 thereof and Branches 565, 566, 567, 568,
569, 570, and 580 thereof, and the Federation of Flat Glass Workers
and Hazel-Atlas Local 48 thereof,"' are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of em-
ployment of Thomas Berry, Carl C. McClung, Lloyd L. Phares, Guy
J. Radcliff, James C. Casto, G. E. Rogers, William J. Radcliff, Carl
K. Reed, Jr., Howard Gaines, Flemie D. Whytsell, and Harry E.
Carder, thereby discouraging membership in the American Flint
Glass Workers Union of North America and in the Federation of
Flat Glass Workers,112 the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8
(3) of the Act.
109 See footnote 108, supra.
uo See footnote 106, supra.
m See footnote 3, supra.
See footnote 3, supra.
HAZEL-ATLAS GLASS COMPANY 419
3. 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.
4. The aforesaid unfair labor practiced are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent, by terminating, laying off, and refusing to
reinstate Francis W. Flynn, has not engaged in unfair labor practices
within the meaning of Section 8 (3) 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 re-
spondent, Hazel-Atlas Glass Company, Clarksburg, West Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the American Flint Glass
Workers Union of North America and Locals 5, 54, and 88 thereof
and Branches 565, 566, 567, 568, 569, 570, and 580 thereof, and the Fed-
eration of Flat Glass Workers and Hazel-Atlas Local 48 thereof '113 or
any other labor organization of its employees, by laying off, dis-
charging, or refusing to reinstate any of its employees because of
membership in, or activity in connection with any such labor or-
ganization, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of'their
employment;
(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 labor organizations, 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 :
(a) Offer to Thomas Berry, Carl C. McClung, Lloyd L. Phares,
Guy J. Radcliff, James C. Casto, and Harry E. Carder immediate
and full reinstatement to the positions to which they normally would
have been reinstated, without prejudice to their seniority and other
sights and privileges previously enjoyed by them;
°3 See footnote 3, supra
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to G. E. Rogers, William J. Radcliff, Carl K. Reed, Jr.,
Howard Gaines, and Flemie D. Whytsell immediate and full rein-
statement to the positions from which they were laid off, or their
,equivalent, without prejudice to their seniority and other rights and
privileges previously enjoyed by them;
(c) Make whole said Carl C. McClung, Lloyd L. Phares, Guy J.
Radcliff, James C. Casto, Harry E. Carder, G. E. Rogers, William
J. Radcliff, and Carl K. Reed, Jr., for any loss of pay they may have
suffered by reason of the respondent's discrimination against them,
by payment to each of them, respectively, of a sum of money equal
to that which he normally would have earned as wages from the date
of the discrimination against him to the date of the offer of rein-
statement, less his net earnings during said period;
(d) Make whole said Thomas Berry, Howard Gaines, and Flemie
D. Whytsell, for any loss of pay they may have suffered by reason
of the respondent's discrimination against them, by payment to each
of them, respectively, of a sum of money equal to that which he
normally would have earned as wages from the date of the discrimi-
nation against him to the date of the Intermediate Report, and from
the date of this Order to the date of the respondent's offer of rein-
statement less his net earnings during said periods;
(e) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of at least sixty (60)
consecutive days, stating that the respondent will not engage in the
conduct from which it has been ordered to cease and desist in para-
graphs 1 (a) and (b) of this Order, and that it-will take the affirma-
tive action set forth in paragraphs 2 (a), (b), (c), and (d) of this
Order, and that the respondent's employees are free to become or
remain members of the American Flint Glass Workers, or any other
labor organization, and that the respondent will not discriminate
against any employee because of membership in or activity on behalf of
such organization;
(f) Notify the Regional Director for the Sixth 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 FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the Act
with respect to Francis W. Flynn.
MR. WM. M. - LEIsEasoN , dissenting :
All issues with respect to the contract between the respondent
and the Flints having been settled by stipulation, and the Board hav-
ing conducted an election pursuant to the stipulation, I see no good
HAZEL-ATLAS GLASS COMPANY 421
purpose served by rehashing the whole controversy and issuing this
Decision and Order.
The Flints won the election conducted by the Board. What good
purpose is served by ordering the respondent to cease and desist
from discouraging membership in this organization, which now has
a valid closed-shop contract? On the other hand, the Flats lost the
election and the closed-shop contract excludes their members from
employment. What purpose is served by ordering the respondent
to cease discriminating against the Flats when a valid closed-shop
contract requires just such discrimination? It seems to me futile
also to pretend to reinstate members of the Flats in the face of the
valid contract which prohibits their employment.
451269-42-vol. 34-28