The Barrett Co.

National Labor Relations Board - Board Decisions

Jun 26, 1942

41 N.L.R.B. 1327 (N.L.R.B. 1942)

In the Matter of THE BARRETT COMPANY and INTERNATIONAL BROTH-
ERHOOD OF FIREMEN AND OILERS, LOCAL #8
Case No. C-2053.-Decided June 26, 1942
Jurisdiction : coal tar products industry.
Unfair Labor Practices ,
Interference, Restraint, and Coercion: interrogation of employees concerning
union membership and activities ; statements to employees discrediting union ;
threat to discontinue plant operations if employees engaged in strike action.
Discrimination: dicharges for refusal to abandon strike.
Collective Bargaining: majority established by membership in union-refusal
to bargain in good faith by, rejecting union proposals; unilaterally granting
a wage increase, which was the subject of negotiations then pending with
the union, and refusing to give the union credit therefor ; refusing to enter
into signed contract-strike caused by employer's unfair labor practices and
refusal to sign contract with union.
Remedial Orders : order to bargain collectively; employees discriminated against
ordered reinstated with back pay from date of discrimination.
Definitions : employees who engaged in strike caused by employer's unfair labor
practices held to have retained their status as employees.
Mr. I. S. Dorfman, for the Board.
Mr. Clarence W. Heyl, of Peoria, Ill., for the respondent.
Dlr. Eugene R. Thorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on October 2, 1941,1 by
International Brotherhood of Firemen and Oilers, Local #8, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Thirteenth Region (Chi-
cago, Illinois), issued its complaint dated October 2, 1941, against
The Barrett Company, Peoria, Illinois, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
'The original charge was filed on March 21, 1939; an amended charge was filed
on May 6, 1939.
41 N. L. R. B, No. 241.
1327
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices affecting commerce , within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly
served upon the respondent.and the Union.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that from July 1, 1937, to the date of the complaint,
the respondent interrogated its employees with respect to their union
membership and activities, suggested, advised, urged, and threatened
its employees to refrain from joining or retaining membership in the
Union, and discouraged its employees from paying union dues; (2)
that during August and September 1937, April through December
1938, and January, March , May, and June 1939, and thereafter, the
respondent refused to bargain collectively with the Union , the ex-
clusive , representative of its employees in an appropriate unit; (3)
that on December 3, 1938, because of the respondent 's unfair labor
practices set forth above which occurred prior to December 3, 1938,
the respondent 's employees went on strike , and that the strike was
prolonged by the respondent 's other unfair labor practices alleged 'in
the complaint ; ( 4) that on. or about January. 24, 1939, the respond-
ent discharged 11 named employees,2 and thereafter, on stated dates,
refused to reinstate them because they joined and assisted the Union,
participated in the strike , refused. to resign from the Union and
abandon the strike, and engaged in other concerted activities with
employees of the respondent for the purposes of collective bargaining
and other mutual air or protection ; and (5 ) that by the foregoing
acts , the respondent interfered with, restrained , and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
On October 11, 1941, the respondent filed its answer admitting the
allegations of the complaint with respect to the nature of its business
and denying the allegations concerning the unfair labor practices.
-Pursuant to notice , a hearing was held in Peoria, Illinois, from
October'' 27• through November 5, 1941, before Josef L. Hektoen, the
Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. The Union did not appear. Full opportunity
to be heard , to examine and cross -examine witnesses , and to introduce
evidence bearing on the issues was afforded all parties.
At'the close of the Board's case, counsel for the Board moved to
amend the complaint by alleging the occupational classifications of
the employees in the appropriate unit with more particularity, by
correcting the name of one of the employees alleged to have been
discriminated against, and by inserting an additional date on which
4 They are named in Appendix A
THE BARRETT COMPANY 1329
the strikers applied for , and were refused , reinstatement . The Trial
Examiner granted the motion without objection .3 At the respond-
ent's request, its answer, theretofore filed, was permitted to stand as
its answer to the complaint as amended . At the close of the Board's
case and at the close of the hearing , counsel for the Board moved to
conform the complaint to the proof with respect to spelling of names,
dates, and other minor inaccuracies . The Trial Examiner granted
the motion . At the close of the Board 's case, counsel for the respond-
ent moved to dismiss the complaint, and each of its allegations for
failure of proof. The Trial Examiner denied the motion. At the
close of the hearing, counsel for the respondent moved to dismiss the
allegations of the complaint antedating December 1, 1938, on the
ground that the Board was estopped from considering such matters
in view of a letter, dated March 23, 1939 , to the respondent from a
Field Examiner of the Board , stating that the Union had filed a
charge that the respondent had engaged in unfair labor practices
"on or about December 1 , 1938 ," and thereafter . The Trial Examiner
denied the motion. Counsel for the respondent also moved to dis-
miss the allegations of the complaint antedating June 30, 1938 , on the.
ground that the proof with respect to the nature of the respondent's
business prior to that date failed to support Board jurisdiction. The
Trial Examiner denied the motion. Counsel for the respondent also
moved to dismiss the complaint on the ground that both the Union
and the Board were guilty of lathes ,' and again moved to dismiss the
complaint for failure of proof to sustain its allegations . The Trial
Examiner reserved ruling on the motions and denied them-in his
Intermediate Report. During the course of the hearing , the Trial
Examiner ruled on other motions and on objections to the admission
9 At a later stage in the hearing, counsel for the respondent objected to the amendment
insofar as it ielated to the composition of the appropriate unit. The Trial Examiner
of ern uled the objection
i As stated aboNe, the Union filed its original charge on March 21, 1939 At that time
negotiations foi the settlement of the dispute between the respondent and the Union were
in piogress The Board promptly began an investigation of the charge However, that
aspect of its investigation to determine whether the operations of the respondent affected
commerce within the meaning of the Act was impeded by the respondent's refusal to
pioduce, in disregard of Board subpenas, company records relating to the natuie of its
business, until July 12, 1941, when the Seventh Circuit Court of Appeals issued its man-
(late after affirming an order of the United States District Couit for the Southern District
of Illinois which directed the respondent to honor the Board's subpenas calling for the
pioduction of such records National Labor Relations Board v Barrett Co, 120 F (2d)
583 (C C A 7), aff'g 35 F Stipp 588 (D C Ill). Since the Union filed its original
change promptly after the commission of the major unfair labor practices alleged in the
complaint and since the delay in the issuance of the complaint was caused by the respond-
ent's resistance to the Board subpenas, theie is no merit to the claim of Inches Cf
Bet'hleheni Shipbuilding Corp v National Labor Relations Board, 114 F. (2d) 930, 935
(C C A 1) enfg 11 N L R B 105, 'Phelps Dodge Cop v National Labor Relations
Board, 113 F (2d) 202, 306, enf'g as mod 19 N L R B 547, modified and remanded on
other gi ounds, 313 U S 177
463892-42-vol 41 84
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of evidence. The Board has reviewed the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. The respondent submitted a brief to the Trial
Examiner after the close of the hearing.
Thereafter the Trial Examiner issued and duly served upon the
parties his Intermediate Report, dated January 12, 1942, finding that
the respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and. (7) of the Act, and recommending
that the respondent reinstate the employees named in Appendix A
with back pay and that it bargain with the Union. On February
12, 1942, the respondent filed exceptions to ,the Intermediate Report
and a brief in support thereof. Pursuant to notice served on all
parties, a hearing for the -purpose of oral argument was held before
the Board in Washington, D. C., on March 19, 1942. The respondent
was represented by counsel and participated in the argument. The
Union did not appear.
The Board has considered the exceptions to the Intermediate Report
and the briefs submitted by the respondent and, save as the excep-
tion"- are consistent with the findings of fact, conclusions of law, 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, a New Jersey corporation with its principal place
of business in New York City, is engaged in the manufacture, dis-
tribution, and sale of coal tar products, including roofing and road
materials, naphthalene, benzol, creosote, phenol, and kindred products.
It maintains branch offices or plants in the States of New York,
Pennsylvania, New Jersey, Massachusetts, Ohio, Alabama, Indiana,
Illinois, Michigan, Wisconsin, Minnesota, Missouri, and California.
This proceeding is concerned only with the, respondent's plant at
Peoria, Illinois, where it is engaged in the manufacture, sale, and
distribution of felt. During the year ending June 30, '1939, the re-
spondent purchased for use at its Peoria plant raw materials, con-
sisting principally of rags and waste paper, having a total value in
excess of $450,000, more than 30 percent of which were shipped to
the Peoria plant from points outside the State of Illinois. During
the same period the respondent manufactured products at the Peoria
plant having a value in excess of $800,000, approximately 25 percent
5 The findings in this section are based upon the allegations of the complaint which
are admitted in the respondent's answer.
-e
THE BARRETT COMPANY 1331
of which, without further processing, and approximately 40 percent,
after further processing at other plants of the respondent within
the State of Illinois, were shipped outside the State of Illinois. These
figures remained substantially unchanged for the period from June
30, 1939, to the date of the complaint.
In its answer the respondent admits the allegations of the complaint
that the respondent "causes and has continuously caused large quanti-
ties of materials . . . to be purchased and transported in interstate
commerce" in the conduct of the business and operation of its Peoria
plant and "causes and has continuously caused large quantities of the
products manufactured" at its Peoria plant "to be sold and trans-
ported in interstate commerce ..."
H. THE ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers, Local #8, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the respondent at its Peoria,
Illinois, plant.
III. THE UNFAIR LA130R PRACTICES
A. Interference, restraint, and coercion
The Union began to organize boiler-room employees- at the re-
spondent's Peoria plant in June 1937. Shortly thereafter, according
to the testimony of several boiler-room employees, the respondent's
then chief engineer, E. J. Shoffner,6 interrogated them about their
union membership and activities and sought to induce them to refrain
from concerted action.
Earl Schlobohm, a stationary fireman, testified that in the course
of a conversation with Shoffner in his office in the latter part of
July or the early part of August 1937, in which, after Schlobohm had
been advised by Shoffner that he intended to post in the plant a
chart showing the efficiency ratings of the boiler-room employees and
Schlobohm had suggested that such action might cause unrest among
those workers, Shoffner stated : "I hear you belong to the Union."
Schlobohm further testified that he admitted belonging to the Union
and that when he disclosed in reply to a further inquiry of Shoffner
that the Union was affiliated with the American Federation of Labor,
Shoffner stated "it wouldn't make any- difference anyway,' . . . he
would not join any organization himself . . . the Barrett -Company-
was a mighty fine place to work . . . don't you think if you went
I Shoffner ceased his employment with the respondent in December 11)37 -
' Shoffner's inquiry was whether the Union was affiliated with the Ameiican Federation
of Labor or \%ith the Congress of Industrial Organizations
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Mr. Morton 8 personally and talked to him that he could pay
better wages." In his testimony Shoffner admitted that he inter-
rogated Schlobohm with respect to the Union's affiliation but denied-
asking Schlobohm whether he belonged to the Union. Shoffner flu•-
ther testified that he had suggested that Schlobohm speak to Super-
intendent Morton about an increase in wages only after Schlobohm
had initiated discussion concerning the subject, and denied telling
Schlobohm that lie (Shoffner) would not join a labor organization.
According to the testimony of Robert W. McCann, a part-time
fireman and fireman's helper, sometime during September 1937, while
in the boiler room, Shoffner asked McCann whether he had attended
union meetings and to disclose what was discussed at the meetings.
Shoffner denied McCann's testimony.
Fred Kneer, a plant oiler, testified that while at work one morning
approximately in the month of September or October 1937, he was
told by Shoffner that he wanted to see Kneer before he went home
that day and, later that day, about 1 p. in., he was approached by
Shoffner who questioned Kneer concerning his union affiliation; and
that, after learning from Kneer that he belonged to the Union`.
Shoffner stated: "How come you belong to this Union? You ain't
working in the boiler room." Kneer further testified that Shoffner
stated : "Well, you fellows are overpaid, anyway. You ought to work
for Keystone or some of them places where the oilers don't get as
much as youse Ido ... You know the Barret Company has an Old
Age Pension." Shoffner denied that he ever talked to Kneer about
his union membership but admitted that he talked to Kneer in Sep-
tember 1937 with respect to a wage increase which the respondent
had granted that month. Shoffner also admitted that he may have
discussed the respondent's old age pension plan with Kneer.
There is also testimony that the respondent sought to discourage
union activity during 1938. August Hoeppner, a fireman and relief
engineer, testified that sometime during the last Week of June 1938,
Jack ,Williams, a "tour boss" or foreman who had charge of the
night shift, talked to Hoeppner in the machine room in the plant
and asked him whether the "firemen" intended to strike;' and that
Williams disclosed that he had his "grip" packed in readiness for a
strike since the respondent "was figuring on discontinuing the
[Peoria] plant" and planned to send Williams to another of its
plants in the event of a strike. Williams denied Hoeppner's tes-
timony.
8 The i espondent ' s superintendent at the Peoria plant.
° As hereinafter set forth , collective bargaining negotiations between the respondent
and the Union were in progress during the latter part of June 1938 At the time of
the alleged conversation between Hoeppner and Williams a rumor existed at the plant
that the Union contemplated strike action
THE BARRETT COMPANY 1333
The respondent urges the Board to disbelieve the testimony of
;Schlobohm, McCann, Kneer, and Hoeppner set forth above, in view
of the fact that the Union made public no complaint that the re-
,spondent had engaged in the unfair labor practices attributed to it
.by the afore-mentioned witnesses until October 2, 1941, the date of
the issuance of the complaint, although the Union had filed with
the Board two prior charges and had met with the respondent for
the purposes of collective bargaining during the period extending
from August 1937 to June 1939. The Union's silence with respect
to these matters prior to the issuance of the complaint lends support
to the respondent's position. In view of the positive testimony of
the four Board witnesses named above, however, the partial admis-
sions of Shoffner, and the respondent's attitude as reflec! ed by its
refusal to bargain which we hereinafter find in Section III, B, we
find, as did the Trial Examiner, that Shoffner and Williams made the
.statements attributed to them by Schlobolim, McCann, Kneer, and
Hoeppner.
We find that the respondent sought to discourage its employees
from joining the Union or from remaining members thereof by the
statements of Shoffner and Williams set forth above, and thereby in-
terfered with, restrained, and coerced its employees in the exercise
-of the rights guaranteed in Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The complaint, as amended, alleges that the employees of the re-
spondent at its Peoria, Illinois, plant engaged- as -firemen, relief
firemen, coal and ash handlers, boiler washers, boiler-washer helpers,
and plant oilers, constitute a unit appropriate for the purposes of
.collective bargaining. The respondent denies that such unit is appro-
priate and contends that a plant-wide unit is appropriate. It nego-
tiated with the Union substantially on the basis of the smaller unit,
however, over a period of almost 2 years as hereinafter more fully set
forth, without making any objection thereto, and objected to such unit
for the first time in its answer filed in this proceeding.
We find, as did the Trial Examiner, that the employees of the
respondent at its Peoria, Illinois, plant engaged as firemen, relief
firemen, coal and ash handlers, boiler washers, boiler-washer helpers,
and plant oilers, at all times material herein constituted, and now
constitutes, a unit appropriate for the purposes of collective bar-
gaining with respect to rates of pay, wages; hours of employment,
and other conditions of employment, and that said unit insures to em-
ployees of the respondent the full benefit of their right to self=
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
As shown by the respondent's pay roll, there were 14 employees
in the appropriate bargaining unit in July 1937, and 13 as of De-
cember 3, 1938. As of August 6, 1937, at least 9 of these employees
belonged to the Union, and as of December 3, 1938, 10 employees
in the appropriate unit were members of the'Union and 1 had applied
for membership. - The respondent at no time during the extended
negotiations, which are considered infra,'questioned the Union's status
as majority representative.
We find, as did the Trial Examiner, that on August 6, 1937,1° and
at all times thereafter, the Union was and is the duly designated
bargaining representative of a majority of the employees in the
appropriate unit, and that by virtue of Section 9 (a) of the Act, the
Union was at all such times and now is the exclusive representative
of all-the employees in such unit for the purposes of collective bar-
gaining.
3. The refusals to bargain and the strike
'a. Chronology of events
On August 24, 1937,11 William H. Blake, business agent of the
Union, called on Superintendent Robert W. Morton, at the respond-
ent's plant. Blake informed Morton that the Union represented a
majority of, the employees in the appropriate unit and left with him
for the purposes of collective bargaining a proposed contract for the
respondent's consideration.
On September 8, Blake, accompanied by two other union repre-
sentatives, Edward Hughes and Frank Anderson, employees of the
respondent, met with Morton and Shoffner 12 They discussed, with
few exceptions, each of the provisions of the proposed contract. Sev-
eral provisions, including those relating to hours of employment,
overtime pay, and vacations, represented the respondent's current
terms or conditions of employment and little or no time was devoted
to discussion of them. Morton, as spokesman for the respondent, ob-
jected to the proposals, among others, concerning a wage scale, a
'° This date appears as August 9, 1937, in the Intermediate Report.
n The record contains conflicting testimony with respect to the date of this and sub-
sequent meetings between the Union and the respondent Since union records were
incomplete and the respondent's witnesses testified with the aid of company records, our
findings as to such dates are based upon their testimony
12 A Mr Bishop, a supervisory employee of the respondent, also participated in this and
subsequent collective bargaining meetings. Neither Bishop nor Frank Anderson appeared
as witnesses. ,
THE BARRETT COMPANY 1335
closed-shop clause, and a provision for arbitration. At the conclu-
tion of the discussion with regard to the component parts of the
proposed contract, according to the testimony of Blake and Hughes,
the union representatives asked Morton whether he "would sign the
agreement with the organization" and that Morton replied : "It is the
Company's policy not to sign any agreement." Hughes further testi-
fied that Morton stated : ". . . the Company had no agreements with
any of its men and he could see' no reason why the Union should
want an agreement . . ." Morton testified that he offered a 5-cent
per hour increase in wage rates and that Blake rejected the offer
and insisted upon the union scale.
Two days later, on September 10, union and management repre-
, sentatives met again. Morton advised the union representatives that
the respondent could not grant the Union's wage rate demands be-
cause of competitive conditions. Morton testified, however, that
he offered an 8-cent per hour increase in wage rates and that Blake
disclaimed authority to accept that figure. Blake and Hughes denied
that the respondent offered any wage increase at either the Septem-
ber 8 or September 10 meetings. According to Blake and Hughes,
Blake again asked Morton whether he would sign an agreement with
Local 8, to which Morton replied : "it was 'against company policy
to sign an agreement." Blake further testified that Morton stated :
"... they had no agreements with their customers, and he didn't
see why the men needed an agreement with the Company . . ."
On September 23, 1937, another meeting was held. At the meeting
Morton announced that the respondent had decided to put into im-
mediate effect' a plant-wide increase in wage rates, ranging from 3
to 8 cents per hour.13 Morton further stated that the Union's efforts
in collective bargaining negotiations had not influenced the respond-
ent's decision to grant the wage increase. Blake asked Morton
whether he would sign a contract embodying such wage increase.
According to Blake and Hughes, Morton reiterated that "it was
company policy not to sign an agreement." On the other hand,
Morton, testified that he refused to sign the proposed contract because
it included provisions for a closed shop and for arbitration and that
he asserted that reason in replying to the union representatives'
request for a signed contract.
In his testimony Morton asserted that he had expressed to union
representatives company opposition to a closed shop and denied that
he ever told the union representatives that he would not enter into,a
contract with the Union or that ""the Company had no agreements
13 The wage increase thus announced by Morton was made effective for the week ending
September 25 and notice to that effect was posted in the plant shortly after the Septem-
ber 23 meeting
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with any of its men." Morton further denied telling union repre=
sentatives that he "couldn't see the reason why the boiler room em-
ployees should want an agreement," or saying that the respondent
had a policy which precluded the signing of a contract with a labor
organization.
In resolving the conflict-in the evidence set forth above, we regard
Shoffner's testimony as significant. The respondent twice called him
to the witness stand. On the first occasion, Shoffner testified that
Morton made no wage increase offer at either the September 8 or
September 10 meetings 14 Later, when Shoffner was recalled as a
witness, he testified to the contrary. Furthermore, while Shoffner
testified that he did not "hear" Morton tell the union representatives
that the respondent was opposed to signing a written contract with a
labor organization, Morton admitted telling the union representatives
that the respondent "dealt with [competitors] 'without a written
agreement and the men could take the Company's word without
[such] an agreement." Under these circumstances, we find, as did
the Trial Examiner, that Morton did not offer any wage increase at
the September 8 or September 10 meetings and that he advised the
union representatives, as set forth above, that the respondent's policy
precluded the signing of a contract with the Union.
No further collective bargaining meetings were held until the
spring of 1938 when a series of them, which extended from approx-
imately-the middle of March to June 21, 1938, began. Substantially
the same union and management representatives participated, except
that A. D. Wade, who became chief engineer at the respondent's
Peoria plant on April 18, 1938, replaced Shoffner as a management
representative, and Joseph A. Wilder, international representative
-of the Union, appeared at two meetings in Jnne'1938. At the-first
meeting in the middle of March 1938, according to the testimony
of Blake and Hughes, they requested a wage increase for firemen
corresponding with the engineers' scale of pay; Morton refused,
asserting among other things, that the engineers received a rate of
pay more nearly approaching the union scale than the firemen for •the
reason that the engineers' duties had been increased' to include work
formerly performed by oilers; and that, when the union representa-
tives reminded Morton that the firemen, like the engineers, no longer
enjoyed the assistance of the oilers, Morton told the union representa-
tives that he was "still running his department and that it was none
of [their] 'business." Again, according to Blake, the'union represent-
14 Shoffner gave the following testimony on direct examination .
Q Was there anyoffer made by Morton in either of these meetings with "reference
to a wage increase'
A No, not to my knowledge.
THE BARRETT COMPANY 1337
atives asked Morton whether he would sign the proposed contract
and again, Morton stated that "it was a company policy not to
sign an agreement." According to Morton's version of the occur-
rences at the meeting, a discussion took place with respect to the
Union's demand for "more money"; Morton advised the union repre-
sentatives that such demand was inopportune because of "business_
conditions"; and another meeting was arranged.
- The next collective bargaining meeting was held about April 19.
Blake requested Morton to grant a 5-cent rate increase and to sign
a contract. According to Blake and Hughes, Morton replied that
the respondent's competitors did. not pay "that much" and that "it
was against company policy to sign an agreement." Hughes testified
that Morton told Blake: ". . . they, sometimes had orders for
felt well on the road before they got a written confirmation from .
the company buying the felt . . . that if they could deal with
other companies like that without any written agreement . . .
the men in the plant should be willing to take their word without
any written agreement." While Morton testified that he did not
remember "discussing the contract" at this meeting, Wade testified
that such discussion took place and that Morton stated that he would
take the Union's requests under consideration for disposal at a later
meeting. Morton admitted, however, that "at possibly several of
these meetings," he made the statement "there wasn't much sense
in discussing the contract until we agreed upon the terms and condi-
tions and we hadn't agreed on wages so . . . we . . . couldn't
agree on the contract."
On April 26 the negotiators met again. At this meeting Morton
refused Blake's request for a 10-cent rate increase and Blake informed
Morton that the Union might call a strike, in view of the delay in
bargaining progress, unless the respondent met union demands.
After .a meeting in the first week of June at which the history
of the bargaining negotiations were reviewed for the benefit of Inter-
national Representative Joseph A. Wilder, who participated then
for the first time, another meeting was held on June 21, 1938. Wilder
and Morton acted as chief spokesmen for their principals. The Union
presented to the respondent a form of contract similar to that first
proposed, except that the new form did not contain an arbitration
clause and had blank spaces for the insertion of wage rates. Again,
union and management representatives discussed, with few exceptions,
each of the provisions of the proposed contract. Again Morton
objected, among other things, to the closed-shop clause. At the
conclusion,of the discussion with regard to the component parts of
the proposed contract, Wilder asked Morton if he would "sign an
agreement" with the Union in the event that it waived its demands
for wage increases and for a closed shop. According'to Wilder and
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blake, Morton replied that "it was against the company's policy
to sign an agreement," and Wilder further testified that -Morton
stated that he "didn't have authority to sign an agreement, that it
was up to the New York office." On the other hand, Morton and
Wade denied in their testimony that Morton had refused to sign
k contract and' asserted that Morton took the Union's requests under
advisement and informed the Union's representatives that the requests -
would be considered. Morton further testified that Blake stated,
as the union representatives left the conference, that "probably if
they came back' next December we would be glad to sign up."
In considering the conflict in the testimony with respect to the
occurrences in the bargaining meetings between the middle of March
and June 21, 1938, we are impressed with the fact, as hereinafter set
forth, that the Union did not resume bargaining negotiations with
the respondent until December 1, 1938. We agree with the Trial
Examiner that it is not likely that the Union would have refrained
for several months from pursuing further attempts at collective bar-
gaining if, as Morton and Wade would have us believe, the respondent's
representatives had held out hope for the consummation of :tin agree- -
ment along the lines indicated by Wilder. We find that Morton
made the statements attributed to him by Wilder, Blake, and Hughes
in the conferences dating from the middle of March to June 21, 1938,
including the statement, as the Trial Examiner found, that the
respondent would not enter into a signed contract with the Union.
As indicated above, the Union made no further attempt to bargain
collectively with the respondent until December 1, 1938,15 when Earl
Schlobohm, who had replaced Hughes as a member of the Union's
negotiating committee, and Blake met Morton and Wade at the re-
spondent's plant. There is conflict in the testimony as to what od-
curred at the meeting. According to Blake, he advised Morton that
"the employees had authorized [Blake] to serve [Morton] with a
strike permit" but that he [Blake] offered ". . . an alternative, to
either negotiate an agreement embodying [a] counterproposal within
48 hours or we would shut the plant down"; and that Morton, among
other things, stated that "this was still the property of the Barrett
Company, and that he would not tolerate any outside interference."
On the other hand, Morton and Wade testified in substance that Blake
issued an ultimatum to the effect that the Union would call a strike-
within 48 hours unless the respondent granted either "an increase of
10 cents an hour and a signed contract" or "the union scale of $1.021/2
and no contract."
15 Hughes presented a grievance to the respondent in October 1938. There is also testi-
mony that a collective bargaining meeting occurred in November 1938 We find, as did
the Trial Examiner , that the latter meeting did not take place. About November 1938,
the respondent began to furnish steam to a neighboring plant, thereby , increasing the
work load of the respondent 's firemen.
THE BARRETT COMPANY 1339
There is also conflict in the testimony as to what occurred on De-
cember 3, when the union representatives returned to obtain the re-
spondent's answer to the strike ultimatum. Blake testified that he
asked Morton "if he had a counterproposal to offer" and that Morton
replied "the bosses said nothing doing." However, Morton testified
that he expressed regret that the respondent "could not meet their
terms" when Blake asked for the res'pondent's decision, and Wade in
substance corroborated Morton's testimony.
In resolving this conflict in testimony, Schlobohm's testimony is
significant. In his testimony Schlobohm made no express reference
to a counterproposal. He testified in substance that Blake asked
Morton on December 1 "if he would come to an agreement and
[grant] a 10-cent increase"; that Morton said "the wage question
was out of line and an agreement was impossible because it was
against company policy to have written agreements . . ."; that Blake
informed Morton that "the boys had decided to strike, but were going
to give you a chance to come to some agreement with the Union,"
and that Morton replied : "The Barrett Company doesn't -need any
chances, Mr. Blake. I want you to understand this is still Barrett
Company property and I will not stand, not tolerate any outside
interference." With respect to the December 3 meeting, Schlobohm
testified that Blake asked Morton whether "he was ready to come to
an agreement" and that Morton said "he was sorry but the big shots
said `nothing doing."' Thus it appears that Schlobohm's testimony
varies in important respects from Blake's while Morton's and Wade's
versions of the December 1 and 3 meetings are strikingly similar.
Moreover, while Blake testified on cross-examination that he did not
"remember" whether he made the demands at the December 1 meeting
testified to by Morton and Wade, a record of the collective bargaining
meetings kept in the Union's minute book contains the following
notation : "12-2-38 Scale or 100 contract." 16 Under all the circum-
le Furthermore , Blake 's testimony on cross-examination indicates that he thereby ad-
mitted threatening the respondent with strike action unless it granted the Union's
demand for a wage increase - -
Q On that day [ December 11 it is true , is it not , that you told Morton and the
other representatives of the Barrett Company that, "We want a signed contract and
an increase of 10 cents per hour or the union scale and no contract "; isn't that
what you said at that time'
A I don ' t remember that, no
Q You may have said that, may you not? I
A I wouldn 't say I did
Q And you at that time told Mr Morton that you would insist upon a reply by
the Company within 48 hours, didn't you?
A I gave him a 48-hour notice
Q. Yes sir. Isn 't it a fact that at that meeting you said that if Morton failed
to meet the above terms that.i ou v ould pull the men out in 48 horns ?
A That was the 48 -hour notice, yes.
Q Didn 't you say that? '
A. Yes
J
1340 DECISIONS OP .NATIONAL LABOR. RELATIONS BOARD
stances, except as noted below,17 we do not credit the testimony of
Blake and Schlobohm as to what occurred at the December 1 and 3
meetings and find that the version of Morton and Wade set forth
above is in accord with the discussions at those meetings.
At the conclusion of the December 3 lneeting, the Union called a
strike and established a picket line outside the respondent's plant.
The respondent immediately shut down the plant.18 At a meeting
of union and management representatives held shortly before Christ-
mas 1938, among other things, Blake informed Morton that the "diffi-
culty could be compromised by 10 cents [per hour] increase" and
that the Union would accept the "10 cents an hour wage increase','
and "no contract." Morton told Blake that "business conditions"
did not warrant an increase in wage rates at that time."'
On January 14, 1939, Morton called to his office the union repre-
sentatives and informed them that the respondent planned to resume.
plant operations and that the strikers could return to work under the
terms and conditions prevailing at the time of the strike call. After
polling the strikers on the picket line, the union representatives noti-
fied the respondent that the strikers had rejected the offer. Blake,
told Morton that the strikers felt that "they could not come back with-
out a raise . . . [since] the men had been out so long now." 20
On January 19, Morton reassembled the union representatives in
his office. He again informed them that the respondent planned to
resume operations and that the strikers were free to return to their
jobs under the "old rates and conditions." Blake again rejected tlie'
respondent's invitation to return the strikers to work and insisted
upon a 10-cent rate increase. Morton rejected Blake's demand for
the rate increase.21
"Neither Morton nor Wade specifically denied that lloi ton made the statement at the
Decerhber I meeting with respect to tolerance of "outside interference" attributed to
him by Schlobohni We find that -Morton made such statement We further find that
by such statement the respondent interfered with, restrained , and coerced its employees
in the exeicise of the rights gnaianteed by Section 7 of the Act
18 As hereinafter appears the plant was shut down until January 23, 1939 ; the picketing
continued, however, until May 1939
"According to Schlobohm's version of this meeting, among other things Blake asked
Morton "if he was ready to some to an agreement," and Morton replied "That is up to
you We didn t ask these men to join the Union and bring this trouble on its If they
didn't like the conditions in the plant, they could have quit any time they wanted to "
Blake did not testify with respect to this meeting The version given above in the text
is, in substance, that of Morton and Wade, and is in accord with the findings of the
Trial Examiner
20 According to the testimony of Blake and Schlobohm with respect to the January 14
meeting, Blake again asked Morton "if he would give us a written agreement" and that
Morton refused, saying that "there was nothing in the law that required it " The version
given above in the text is, in substance , that of Morton and Wade and is, except as to
the last sentence, in accoid with the findings of the Trial Examiner
21 With respect to the January 19 meeting, Blake and Schlobohm testified that Blake'
again asked Morton at the January 19 meeting "if he would negotiate an agreement" and,
as on January 14, Morton stated that "they were not required by law to sign an agree-
THE BARRETT COMPANY 1341
On January 23, the respondent resumed plant operations with a
iiew, complement of boiler-room employees. The next day Blake and
Morton met at the office of the sheriff of Peoria County.22 At the
meeting in the sheriff's office, according to Blake, he asked Morton
whether "he Would sign an agreement with the organization with a
10 per cent increase"; Morton refused and stated that'"they had
offered on two different occasions for the men to go back to work
but they had refused, and they no longer considered the strikers as
employees of the Company." However, Morton testified that he
stated at the meeting in the sheriff's office that the respondent could
not accede to the Union's demand for a wage increase because of pre-
vailmg business conditions, but that he would give further considera-
tion to the demand. He denied that any discussion took place in the
sheriff 's office with respect to "signing the contract." Although we
find hereinafter that Morton told the union representatives at a
later date that the respondent no longer regarded the strikers as
its employees, in view of the absence of any reference to the alleged
di^chal•ge of the strikers in a lengthy telegram, dated January 30,
1939, which Blake sent to the respondent's New York office as a
protest against Morton's treatment of the Union,23 we find that Mor-
ton did not make any statement with respect to the strikers' status
as employees or with respect to-"signing a contract" at the January
ment with us " The version given above in the text is in substance that of Moiton and
Wade and is, except as to the last sentence , in accord with the findings of the Trial
Examiner.
12A brick had been thrown through a window at the home of an operating engineer
employed by the respondent , and Morton had telephoned the sheriff about the incident ;
the meeting referred to in the text resulted when the sheriff invited union and manage-
ment representatives to his office Neither the sheriff nor his first deputy, who had
paiticipated in the meeting, testified at the hearing
23 The telegram read as follows :
BARRETT MFG CO, ATTN MR PRESIDENT
GENTLEMEN I AM WIRING YOU IN REFERENCE TO THE STRIKE IN
YOUR PEORIA PLANT TILE PLANT HAS BEEN ON STRIKE EIGHT WEEKS,
DURING WHICH TIME WE HAVE OFFERED TWO COMPROMISES AT THE
LAST MEETING, JANUARY 26TH, IN THE PRESENCE OF THE STATE
COUNCILOR. MR MORTON PRACTICALLY AGREED TO TILE WAGE INCREASE
AND ALSO REQUEST INFORMATION CONCERNING WRITTEN AGREEMENT TO
PROTECT THE PLANT FROM FUTURE LABOR TROUBLE WE ASSURED IIIM
AN AGREEMENT WOULD HAVE AN ARBITRATION CLAUSE THE DECISION
OF WHICH WOULD BE BINDING TO BOTH PARTIES ON JANUARY 27 HE
RESCINDED HIS STATEMENTS BY INFORMING US HE WOULD NOT MEET
OUT COMPROMISE NOR WOULD HE ENTER INTO AN AGREEMENT WITH US
WE WOULD LIKE TO KNOW WHETHER TIIE COMPANY SANCTIONS TIIE UN-
FAIR TREATMENT WE ARE, RECEIVING WITH MR MORTON IT HAS BEEN
GENERALLY ACCEPTED BY ALL PEORIA LABOR ORGANIZATIONS AS WELL
AS SEVERAL STATE' AND COUNTY GOVERNMENT OFFICIALS THAT WE
HAVE BEEN MORE THAN FAIR IN OUR REQUESTS AND NEGOTIATIONS. WE
ARE AWAITING A REPLY FROM YOU BEFORE TAKING ANY ACTION WHICH
WOULD PLACE THE,BARRETT''COMPANY AS'UNFAIR TO ORGANIZED LABOR
THROUGHOUT,TIIE UNITED-STATE S AND CANADA WE WOULD APPRECIATE
AN IMMEDIATE REPLY
W H BLAKE, 502 ARCHER AVE BUSINESS REPRESENTATIVE, IN-
TERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
%4 meeting,24 and that the statements made at that meeting were those
testified to by Morton. '
The following day, January 25, Blake and Morton met with
Joseph Vincent, a conciliator for the Illinois State Department of
Labor. Blake testified as a witness for the Board on two occasions
with respect to this meeting. According-to Blake's testimony on the
first occasion, Vincent requested Morton to offer a counterproposal
and Morton refused; and Morton promised to take under advisement
until the following day a proposal suggested by Vincent involving
union withdrawal of its wage demand. Morton testified, however,
that the history of prior negotiations was reviewed for Vincent at the
meeting, that Blake demanded an increase of 10 cents an hour, and
that an arrangement was made to meet the next day.25 Subsequently,
Blake resumed the witness stand and changed his testimony. On the
second occasion, Blake testified that the wage demand was not with-
drawn at the January 25 meeting, but that "the wage and contract
demands were withdrawn" at a meeting on March 10, 1939. Under
all the circumstances, we credit Morton's testimony with respect to the
January 25 meeting.
On January 26, the negotiators met again with Vincent but nothing
was accomplished. The next day Morton telephoned Blake at his
home and informed him that the respondent had given further con-
sideration to the Union's wage demands but that the respondent was
unable to grant an increase in wages.
No meetings were held thereafter until March 10, when Vincent
again met with- union and management representatives. On that,
day, among other things, Vincent stated that he had been authorized,
by the strikers "to waive all wage and contract demands" and -re-
quested Morton to reinstate the strikers. Morton replied that he
would consider the request, and another meeting was arranged for
March 13. On March. 13, when the conferees reassembled, Morton
announced that the respondent no longer considered the strikers as
employees since they had twice refused invitations to return to work;
and the meeting ended.
After the Union had filed charges with the Board, Oscar S. Smith,
a Field Examiner for the Board, on May 2, 1939, met with union rep-
resentatives, including Howard A. Plank, an international repre-
sentative, and with management representatives, including Clarence
W. Heyl, counsel for the respondent in this proceeding, at the latter's
office: A discussion took place with respect to' an employer's obli-
2+The first notation In the Union's minutes with respect to the respondent's an-
nouncement concerning the strikers ' loss of employee status appears under date of
March 17, 1939
, , ,21 Vincent did not testify -
THE BARRETT COMPANY 1343
gation to enter into a signed contract. According to Plank, Heyl
asserted that the Act did not require the respondent to enter into
a written agreement with the Union under the then state of court
decisions. At one point in his testimony, Morton stated that he
"would not say that statement was not made by Mr. Heyl," but later,
at another point, Morton changed his testimony and claimed that
Heyl made a statement to the effect that "the Company was under
no obligation to submit a counterproposal in writing." Neither Smith
nor Heyl testified. Under all the circumstances, we find, as did the
Trial Examiner, that Heyl made the statements attributed to him
.by Plank. At the meeting Smith proposed that the dispute be
settled by withdrawal of the charges, reinstatement of the strikers,
and resumption of bargaining negotiations looking toward the sign-
ing of a written agreement. Heyl, however, vetoed the suggestion,
adding that the strikers were no longer employees of the respondent.-
Smith then suggested that the strikers be placed on a preferential
list for employment, and Heyl promised to consider the suggestion.
On May 31, 1939, Morton addressed a letter to Smith, as a result
of a conference held that day, offering to place the strikers upon a
preferential list for employment as vacancies occur. On June 5, 1939,
Smith again met with Heyl and Morton. As a result of the discus-
sion that day, the respondent agreed to include a provision with
respect to vacation benefits during 1940 for those affected by the
proposed settlement. The record discloses no further bargaining or
settlement negotiations.
B. Conclusions with respect to the refusals to bargain and the strike
On the basis of the evidence hereinabove reviewed, it is clear that
the respondent, in addition to the interference, restraint, and coercion
found in Section III, A, above, engaged in unfair labor practices
prior to the strike by refusing to bargain with the Union. The re-
spondent was bound to negotiate with the Union as the exclusive
representative of its employees herein involved with an open mind
and sincere desire to find a basis of agreement.2e The evidence dis-
closes, however, that the respondent entered the negotiations with a
preconceived determination to avoid the making of an agreement with
the Union and so designed its bargaining technique to preclude the
attainment of any basis therefor. Shortly after the respondent's
employees joined the Union, supervisors questioned them about their
membership in the Union, its affiliation, and its activities, and sought
- Matter of Montgomery Ward cC Company and Waiehousenven's Union, Local No 206,
chartered by the International Brotherhood of Teamsters , Chauffeurs , stablemen and Help-
ers of America, et at, 37 N . L R B 100
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to induce the employees by veiled threats to refrain from concerted
activity. While the respondent met thereafter with the Union when.
requested, listened to its demands, and explained its position with
respect to them, it stopped short of fulfilling its obligation to bargain
collectively. After rejecting the Union's demands, the respondent
awaited the Union's initiative. It failed to make any counterpro-
,posals,27 taking the position at times that "so long as wages were not
agreed upon," there was no use in further discussion of other pro-
visions of a proposed contract. At other times the respondent sought
to maintain its position by asserting objections to the closed-shop
clause and to the arbitration provision in the Union's first proposed
contract. However, the respondent's attitude, and not the Union's
demands with respect to wages, the closed shop, and arbitration,
presented the real obstacle to the consummation of an agreement.
Throughout the bargaining negotiations in September 1937, Super-
intendent Morton expressed the respondent's opposition to signing
any agreement with the Union. On September 23, in the midst of
bargaining negotiations with the Union's representatives, the re-
spondent unilaterally increased wage rates ; Morton announced that
the Union could not claim credit for the increase; 28 and the Union's
proposal to embody in a contract the increase thus granted was re-
jected by the respondent on the ground that its policy was opposed
to the signing of a contract with a labor organization.2 Again, on
June 21, 1938, the respondent plainly indicated that it would not
enter into a signed contract with the Union even if the Union with-
drew its demands with respect to wages, the closed shop, and arbitra-
tion. Thus, by failing to make any proposal and declining to reduce-
to writing in a signed contract such proposals agreed to, and by
unilaterally granting a wage increase under the circumstances disclosed
above, the respondent refused to bargain in good. faith.
We find that the respondent at various times in 1937, especially
on September 23, 1937, and at various times in 1938, especially on
June 21, 1938, and at each such times refused to bargain collectively
with the Union as the exclusive representative of employees in an
appropriate unit; and that by such refusals, and each of them, the
24 Cf Globe Cotton Mills v National Labor Relations Board, 103 F (2d) 91 (C C A
5), enf'g as mid, 6 N L R B 461, National Lagoa Relations Board v Geo P Pilling