The Logan Clay Products Co.

National Labor Relations Board - Board Decisions

Dec 11, 1944

59 N.L.R.B. 819 (N.L.R.B. 1944)

In the Matter of THE LOGAN CLAY PRODUCTS COMPANY and UNITED
BRICK AND CLAY WORKERS OF AMERICA, LOGAN LOCAL No. 899,
A. F. L.
Case No. 9-C-1905.-Decided December 11, 1944
DECISION
AND
ORDER
On August 15, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a memorandum to support the exceptions.'
No other exceptions were filed. No request for oral argument before
the Board was made by any of the parties, and none was held. The
Board has considered the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and memorandum, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the modifications and exceptions hereinafter
noted.'
, The record does not disclose , as the Trial Examiner stated in the second paragraph of
Section III, B, of the Intermediate Report, that Robert Jacobs represented the office force
on the Committee. His name is hereby omitted from the list of those mentioned by the
Trial Examiner as Committee representatives.
In the first paragraph of Section III, B, 2, of the Intermediate Report the sentence read-
ing, "shortly thereafter and by letter dated November 17, 1943, the Regional Office wrote
the Committee and the Union that they had filed a petition for investigation and certifica-
tion of representatives pursuant to Section 9 (c) of the Act, wherein it was stated that
the Committee claimed to represent the employees in the plant and asked that the Com-
mittee advise the Regional Office as to its status" is hereby omitted and the following
sentence is substituted in its place and stead : "Shortly thereafter and by letter dated
November 17, 1943, the Regional Office wrote the Committee that the Union had filed a
petition for investigation and certification of representatives pursuant to Section 9 (c) of
the Act, wherein its was stated that the Committee claimed to represent the employees in
the plant and asked that the Committee advise the Regional Office as to its status."
In the third paragraph of Section III, B, 2, of the Intermediate Report the name of
Charles Mohler is hereby omitted and the name of William Smith substituted therefor.
In the last sentence of footnote 31 the word " respondent " is hereby omitted and the word
"Independent" substituted therefor.
59 N. L. B. B., No. 165.
819
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner has found that, among other means, by threats
and statements in opposition to self-organization made in 1941 and
1942 by President Sheffield, the respondent interfered with, restrained,
and coerced 'its employees in the exercise of the rights guaranteed in
Section 7 of the Act. At the hearing the respondent objected, among,
other things, to the introduction of evidence with respect to, and has
excepted to the Trial Examiner's findings based on, such threats and
statements of President Sheffield on the ground that, pursuant to a
stipulation approved by the Board on May 17, 1943, the United States
Circuit Court of Appeals for the Sixth Circuit, on June 4, 1943, had
entered a decree in a prior proceeding involving the respondent, among
other things, restraining the commission of any unfair 1<_bor practice
within the meaning of Section 8 (1) of the Act. In view of the decree,
contrary to the Trial Examiner, we make no finding that the respond-
ent engaged in any unfair labor practice within the meaning of Section
8 (1) of the Act by President Sheffield's statements or otherwise prior
to May 17, 1943. However, we have considered such statements and
other statements and acts antedating May 17, 1943, as background
material against which to evaluate the respondent's subsequent con-
duct. We find, as did the Trial Examiner, that the respondent en-
gaged in unfair labor practices violative of Section 8 (1) of the Act
subsequent to May 17, 1943, and shall, therefore, order the respondent
to cease and desist from such subsequent unfair labor practices, as well
as those violative of Section 8 (2) of the Act as hereinafter indicated.
We have adopted the Trial Examiner's finding that the respond-
ent dominated and interfered with the formation and administration
of the Committee and of its successor, the Independent. Since the
Committee has ceased to function, we shall not order its disestablish-
ment; but since the Committee has been succeeded by the Independ-
ent, with which the respondent is currently dealing, and the re-
spondent has not disestablished the Committee, we shall order the
respondent to cease and desist from recognizing the Committee and
to disestablish it in the event that the Committee should resume
functioning?
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Logan Clay Products
Company, Logan, Ohio, its officers, agents, successors, and assigns
shall :
2 Matter of Elizabeth Orden, Inc., 45 N. L. R B. 936, enf'd 139 F. (2d) 488 (C. C. A. 2) ;
Matter of Landis Tool Co., 51 N. L. R. B . 718, 145 F. ( 2d) 152 (C. C. A. 3).
THE LOGAN CLAY PRODUCTS COMPANY 821
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or
contributing support to, the Committee, and dominating or inter-
fering with the formation or administration of, or contributing sup-
port to, the Independent Union of 'Employees of The Logan Clay
Products Company, or any other labor organization of its employees;
(b) Recognizing the Committee, in the. event that it resumes func-
tioning, or the Independent Union of the Employees of The Logan
Clay Products Company, as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
,or other conditions of employment ;
(c) In any other manner interfering with,' restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Brick & Clay Work-
ers of America, Logan Local No. 899, A. F. L., or any other labor
.organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
,of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7, of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish
the Committee, in ' the event that it resumes functioning, and the
Independent Union of the Employees of The Logan Clay Products
Company, as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment;
(b) Post immediately in conspicuous places throughout its plant
at Logan, Ohio, and maintain for a period of at least sixty (60)
-consecutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a),
(b), and (c) of this Order; and (2) that the respondent will take
the affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify'the Regional Director for the Ninth Region in writ-
ing, 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 insofar as it alleges that the respondent discriminated
against Lawrence Oblinger within the meaning of Section 8 (3) of
the Act.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. James A. Shaw, for the Board.
Mr. Forest E. Weinrich, of Logan, Ohio, for the respondent.
Mr. William J. Leggett , of Midvale , Ohio, for the Union.
Mr. C. Wood Bowmen , of Logan, Ohio, for the Independent.
STATEMENT OF THE CASE
Upon an amended charge duly filed May 6 , 1944, by United Brick & Clay
Workers of America, Logan Local No. 899, A. F. L., herein called the Union,
the National Labor Relations Board, herein called the Board , by its Ninth
Regional Office ( Cincinnati , Ohio ), issued its complaint dated May 8, 1944,
against The Logan Clay Products Company, Logan, Ohio , herein called the
respondent , alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1),
(2), and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations Act,
49 Stat. 449 , herein called the Act. Copies of the complaint and notices of
hearing thereon were duly served upon the respondent , the Union , the Com-
mittee, and The Independent Union of the Employees of the Logan Clay Products
Company, of Logan, Ohio , herein called the Independent.
With respect to the unfair labor practices , the complaint alleged in sub-
stance that the respondent : ( 1) since about June 1, 1941 , engaged in a plan
and course of conduct constituting interference , restraint and coercion ; (2) about
December 13, discriminatorily discharged Lawrence Oblinger and has since
refused to reinstate him; (3 ) since about June 1, 1941, initiated , formed, spon-
sored, promoted , and dominated the Committee ; ( 4) about November 22, 1943,
sponsored , dominated and supported the Independent , a continuation of and
successor to the Committee ; and (5 ) since about May 13, 1943, has interfered
with its employees by (a) questioning applicants for work concerning union
activity , and asking them to forsake the Union ; ( b) questioning employees
concerning their union affiliations and activities for the Union ; ( c) urging,
persuading and warning its employees to refrain from becoming or remaining
members of the Union ; ( d) making disparaging remarks about the Union;
(e) threatening that officials of the respondent would resign if the Union suc-
cessfully organized the plant ; ( 4) promising pay raises after union activities
began; and ( 6) by the above has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
On May 18, 1944, the respondent filed its answer admitting the allegations
with respect to the nature of its business, but denying the commission of any
unfair labor practices . The answer further alleged that' upon petition of the
National Labor Relations Board , a decree was entered on June 4, 1943, by
the United States Circuit Court of Appeals for the Sixth Circuit, which decree,
among other things, ordered the respondent not to :
(b) In any other manner interfere with, restrain or coerce 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 , or to engage in concerted activities for the purposes
of collective bargaining , or other mutual aid or protection as guaranteed'
in Section 7 of the Act.
That by virtue of said decree all allegations of unfair labor practices in
the complaint , with the exception of the allegations as to the discriminatory
discharge and refusal to reinstate Oblinger , are "exclusively within the juris-
THE LOGAN CLAY PRODUCTS COMPANY 823
diction of said court by virtue of the provisions of Section 10 (e)" of the Act.
On May 19, 1944, the Independent filed its answer denying that 'it had been
initiated and sponsored or was dominated by the respondent'
Pursuant to notice a hearing was held a Logan, Ohio, from May 22 to May
25, 1944, before J. J. Fritzpatrick, the undersigned Trial Examiner duly'
designated by'the Chief Trial Examiner. At the opening of the hearing the
Independent moved for leave to intervene. The motion was granted insofar
as its interests were affected. The Board, the respondent, and the Independent
were represented by counsel, the Union by an official. Full opportunity to be
heard, to examine and, cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. Before the receipt of any
evidence the respondent moved that certain paragraphs of the complaint
be stricken on the ground that they alleged conclusions. The motion was
-denied. At that time the respondent objected to the receipt of evidence in
support of any of the unfair labor practice allegations in the complaint, etx-
-cepting only the allegations of discrimination as to the hire and tenure of
,employment of Oblinger, on the ground that the Board lacked jurisdiction
because of the Circuit Court of Appeals decree heretofore referred to. The
objection was overruled 2 At the conclusion of the Board's main case the
respondent renewed its objection to the jurisdiction of the Board and moved
that all evidence of unfair labor practices be stricken, except the evidence of
discrimination, and that the complaint be dismissed as to all the other unfair
labor practice allegations. The objection was overruled and the motion denied.
At the conclusion of all the evidence the respondent renewed its motion to
strike and to dismiss. The motion was denied. Board's counsel at that time,
without objection moved to conform the pleadings to the proof in formal mat-
ters. The motion was granted. At the conclusion of the hearing counsel for
the Board, the respondent and the Independent argued orally on the record,
but all parties waived the right to file briefs with the Trial Examiner.3 On
June 3, 1944, after the close of the hearing, upon his own motion the under-
signed ordered corrections made in the transcript of record.
Upon the record thus made, and from his observation of the 5 witnesses, the
undersigned makes the following:
FINDINGS OF FACT 4
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation with its principal office and place of
business at Logan, Ohio. It is engaged in the manufacture, sale and distribu-
tion of sewer and drain pipes. Practically all of its raw material is obtained
locally as is most of its machinery and equipment. In the year 1943, the re-
spondent manufactured and sold products in excess of $300,000 in value, more
than 75 percent of this going to points outside Ohio. The respondent admits
that it is engaged in interstate commerce within the meaning of the Act.
1 At the hearing, as will hereinafter appear, the Independent's motion to intervene was
granted.
z Cf. N. L. If. B. v. Thompson Products, 133 F (2d) 637 (C C A 6).
a By letter to the undersigned dated May 27, 1944, copies of. which were sent to counsel
for the Board and for the Independent, the respondent's counsel commented very briefly on
one fact in the record that he had overlooked in his oral argument.
4 Unless otherwise indicated all findings of fact are based upon admitted facts or undis-
puted evidence.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Committee was an unaffiliated labor organization and the United Brick &'
Clay Workers of America, Logan Local No. 899, AFL, and The Independent
Union of the Employees of The Logan Clay Products Company, unaffiliated,
are labor organizations admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The respondent 's plant is situated on three contiguous squares in the city
of Logan. It consists of the factory , the "yard", the boiler or powerhouse, and
the general office building some distance away from the factory building.
Although in business for many years , in 1938 the respondent was in financial
difficulties and had not operated continuously for some time . In December of
1938, E. K. Sheffield joined its staff of officials , first as assistant general man-
ager, and after May, 1939 , as president and general manager . About the time
Sheffield assumed the general managership Barton A. Holl came to the company
as vice president and sales manager 6 Thereafter , on occasions when Sheffield:
was away from the City, Holl took charge also of production if he was available.
Under the general manager was a general foreman, John Norris. Below Norris
were five department foremen, Herbert Blackburn , Earl Columber, Walter Klein-
schmidt, Harry Bartholomew ,e and Carl Jergensmeier , who were responsible
for the hiring and firing in their respective departments.
B. Domination of and interference with the formation and administration of
labor organizations
1. The Committee
In the summer of 1941 the trnion attempted to organize the respondent's
employees. John L. Columber and Lawrence Oblinger, the only two branchers r
employed applied for membership. During the course of the Union drive Shef-
field told Columber that Collins was disturbed by the efforts to organize the
employees and was threatening to withdraw his financial support. Sheffield
also told Columber that if the Union succeeded in organizing the employees he
would leave the respondent and take his sales force with him.' At that time
there was still some back pay due the employees, and Columber, who had been
with the respondent for many, years, asked and obtained permission from Shef-
field to speak to the employees as a group. Columber then returned to the
factory, the machinery was stopped and after the employees assembled, Columber
repeated to them what Sheffield had said to him s Columber then went for
" When Sheffield took over the respondent had only a few dollars in the bank and owed'
$234,000, including about $20,000 in hack wages 'From 1938 until at least 1941, John Col-
lins, a local business man and a member of the respondent's Board of Directors, advanced
sums necessary to run the business, and orders from the customers were hypothecated to.
protect Collins
In May 1943, Bartholomew succeeded William Bierley who became ill.
Branchers make ells and "branches" for pipes. It is a skilled and fairly well paid trade-
Columber and Oblinger worked together in the moulding department under Foreman
Blackburn.
8 This talk was in Sheffield's office The record is not clear whether Columber went to the
office voluntarily or was sent for by the general manager.
9 Practically all the employees who worked in the factory building attended this meeting..
THE LOGAN CLAY PRODUCTS COMPANY 825
Sheffield who came to the factory and verified Columber's statements. Sheffield
told the employees that if they organized, Collins would withdraw his support and
,that he [Sheffield] would leave the respondent and take his sales force with him 10
After Sheffield had completed his statement, employee Sanford McWilliams
asked, "If we can't have a union, how about a committee?" Sheffield replied that
he would consent to a Committee composed of representatives of the various
groups of employees.
Following this meeting representatives were selected by the various groups
to act on such committee, including Oblinger, 3 Charles Howdyshell, Sanford
McWilliams, Floyd Donaldson, George or Robert Stuyvesant, Robert Jacobs,"
Homer Marshall, and others not disclosed by the record. The Committee, as
finally organized, consisted of about 14 members, including Columber, who was
asked by Sheffield to serve," and Walter Kleinschmidt, at that time foreman
of the construction and repair department 14
From the time of its inception in the summer of 1941 until the fall of '1943,
the Committee met in the evening at Sheffield's office, first weekly but later not
quite so often, The meetings lasted from one to two and one-half hours. All
Committee representatives, with the exception of Foreman Kleinschmidt and
Clerk Robb, were paid for their time by the respondent. Most of the meetings
were called by Sheffield, who actively participated in the discussions which
included wages, hours and working conditions.16
(A) The 1942 CIO drive for members
In the late spring or early summer of 1942 the Congress of Industrial Organi-
zations started a drive for members among the respondent's employees. Sheffield
heard of the drive and called the employees together on company time and
told them that they did not need a union in the plant 38 About the same time
to Sheffield testified that previous to this talk Collins had told him that he had heard ru-
mors of the organizing efforts and stated that if the Union was successful he was afraid of
a strike and wanted his money without delay ; he testified further that if the respondent
had been compelled to pay Collins the $34,000 due him it could not have continued to
operate.
11 The committee later elected Oblinger chairman.
12 Jacobs, a clerk, represented the office employees.
16 Sheffield denied that he assisted in designating any members of the Committee. As
heretofore found, both Oblinger and Columber were in the moulding department, and
Oblinger was the elected representative of that department. Furthermore, the Union's
efforts to organize had been effectually blocked. ' It is therefore found, as testified to by
Columber, that he joined the Committee at the request of the general manager.
14 Kleinschmidt testified that he did not know how he got on the Committee, but assumed
that he was selected by the men in his department.
16 Other matters discussed by the Committee and Sheffield at these meetings was a
hospitalization plan for employees which in January 1943, developed into a voluntary
Health and Accident Association among the employees. The business affairs of the Asso-
ciation were handled by a designated group of employees, some of whom were members
of the Committee, including Marshall and Robb. But the group also included two super-
visory employees, and the Association was run as a distinct entity. Various funds were
also established , financed in part by the respondent, including a flower fund for sick
employees, a pension fund which later was changed to a clubroom fund, and a soldier's
fund for former employees in the armed services. The details relative to the distribution
of these funds was handled through the Committee secretary, Jacob Robb, or subcommittees
selected by the Committee. The Committee as such, however, had no control over any
funds.
ie Oblinger and Columber so testified in substance. Sheffield did not deny their testi-
mony or that he had made the speech. Dewey Ringhiser testified that Sheffield told the
employees that if they organized be would leave the plant and take his sales force with
him. In view of the fact that no other witness corroborated Ringhiser in this respect
the undersigned believes that Ringhiser confused Sheffield's speech in 1942 with the
I
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of a petition to the effect that the employees were satisfied with manage-
ment and did not want a union were circulated throughout the plant on company
time with the respondent's consent by Homer Marshall who was, as is hereafter
found, active in the formation of the Independent. In addition, pressure was
brought on employees by management to secure their signatures to this petition.
Thus word was sent to employee Oliver Blake that his foreman William Bierley
wanted him to sign the petition. When Blake still did not sign, Sheffield came to
him and asked his reason for not signing. Blake told Sheffield that he had not
signed for the CIO and was not taking part on "either side." 1? Employee
Daniel Alven Sands was given a copy of the petition by his foreman. Curtis Cole,
and sent on company time and with his expenses paid about 7 or 8 miles to the
home of employee Walter McGee, who at the time was not working, to secure
his signature.'s Oblinger had also refused to sign the petition. About the 26th
of June 1942, Sheffield came to him and said, "You are stickin'; your r.eck'out
again, ain't you," and accused Cblinger of saying that the petitiva was "illegal."
Oblinger asked Sheffield if it was not a fact that it was illegal, whereupon Shef-
field replied, "Well, it served its purpose, we tore it up and destroyed it." 1' So
far as the record discloses the CIO efforts to organize the employees ceased
thereafter.
(B) 1942 efforts to organize the boilerhouse employees,in the Firemen (AFL)
In the spring of 1942 Bert Lowery was employed as a fireman on the boiler-
house night crew which consisted of four employees. Lowery had previously
been a member of the international Brotherhood of Firemen and Oilers, AFL,
herein called the Firemen, but his membership had lapsed. On coming to the
respondent Lowery reinstated with the Firemen and apparently solicited some
of his fellow employees to join that Union. Within a few nights thereafter
Sheffield came to Lowery at work and asked him if the boilerhouse employees
were organizing. Lowery admitted such to be the fact and Sheffield said, "What
did you want to do that for? I didn't know there was anything wrong here."
Lowery replied, "I am afraid that you got about what you asked for," whereupon
Sheffield said, "What do you want to do, shut the plant down l" 2°
Just before Chri'stmas in 1942, Lowery, Blake, and one or two others employed
in the boilerhouse conferred with Sheffield relative to their receiving double pay
for Sunday work. During the discussion, although nothing had been said about
previous speech in 1941 at the time the Union first attempted to organize as heretofore
found. Ringhiser's testimony in the above respect is therefore disregarded.
17 Bierley was ill and was not employed by the respondent at the time of the bearing.
Sheffield did not deny the above testimony of Blake. He did deny that at this time,
as testified to by Blake, he said that his "boys" would "beat the hell out of" any employees
who attempted to organize . Blake was a rambling , garrulous type of witness and not
too impressive . In view of this fact and the specific denial by Sheffield , Blake's testimony
as to the threat is disregarded.
'e Cole did not testify. He has not been in the respondent's employ since the fall of 1943,
and there was no showing of his unavailability.
1s Shef`ield did not deny Oblinger's testimony as to the above talk He testified however
that in June he was having a conference with a Regional office representative relative to
a charge of unfair labor practice that had been filed by the CIO , that during the con-
ference, Homer Mar;,ball came into his office with the petition signed by 129 to 132
employees which way, shown to the Board representative He testified that he ' did not
know what became of the petitions. Marshall also testified that he brought the petitions
to Sheffield's office at the time the Board representative was present.
20 Sheffield did not deny this testimony of Lowery. Later the boilerhouse employees
were organized in the Firemen and, as will hereafter appear, Lowery assisted in securing
members for the charging Union.
THE LOGAN CLAY PRODUCTS COMPANY 827
unions up to that time, Sheffield said, "Now, there is no use to talk about labor
organizations around this place-Our boys take care of such people'." 7
Late in December 1942, Blake joined the Firemen 22 A few nights later Sheffield
accompanied by Foreman Bierley, came to Blake's home and inquired of him if
the boilerhouse employees had organized. On Blake's admission that'such was
the case Sheffield asked him what was the good of organizing if the plant was
going to shut down as he [Blake] had been telling around town 28
(C) Oblinger's resignation from the Committee
In March, 1943, Oblinger as chairman, called a meeting of the Committee in
Sheffield's office. When the Committee had assembled Sheffield asked Oblinger to
state the purpose of the meeting and Oblinger announced that it was to secure
a general increase in wages. No increase was granted at that time although
Sheffield questioned each member of the Committee as to why he felt that an in-
crease should be granted. The next morning Oblinger, accompanied by Columber,
who had resigned from the Committee the day before, went to Sheffield's office
and secured more piece work and less hourly work for the two of them as
branchers, which materially increased their earnings. During' the discussion
Sheffield told Oblinger that there were too many of the employees running to him
with complaints and suggested that he resign from the Committee. 24 Following
this conference Oblinger resigned from the Committee and Dewey Ringhiser was
selected by the molders to succeed him.25
(D) Renewal of Union Activity
In the late spring of 1943 activities on behalf of the Union were renewed.
Oblinger and Columber joined in June 26 and Dewey Ringhiser and one or two
others made application. Lowery, although a member of another AFL affiliate
as heretofore found, was active in securing members for the Union. That
summer Ringhiser, who as heretofore found had succeeded Oblinger on the
Committee, was accused by Sheffield of having "turned traitor on him" by
joining the Union. Later in the summer Sheffield gave Ringhiser a ride home
31 This finding is based upon the testimony of Lowery corroborated by Blake. Sheffield
did not specifically deny this testimony, but, as heretofore found, denied the testimony
by Blake relative to a somewhat similar statement by him earlier in the year . Assuming
that Sheffield 's denial was also intended to cover the testimony of Blake at the later
date , the denial is not credited in view of the testimony of Lowery , a very ' Credible
witness.
22 Blake was involved in an unfair labor practice complaint brought against the
respondent as a result of a charge filed by the Firemen. This was the case that was
settled and in which the Sixth Circuit issued a decree , as set forth in the respondent's
answer herein.
22 Sheffield did not deny the visit to Blake's home and testified that the conversation
took place substantially as found above. Blake testified that Sheffield asked him why
they had organized and if they were trying to shut the plant down. However, on cross
examination , Blake admitted that Sheffield had accused him of spreading rumors around
Logan that the respondent 's plant was going to close.
24 This finding is based upon the testimony of Oblinger , Columber and Sheffield.
Sheffield testified that Oblinger said something about the molders and I just can't remember
exactly how it was said, but anyhow the molders appeared to be dissatisfied with his
representation , and I said, "Why in the hell don't you get off if that's the way you feel.
You got too many people running seeing you, anyhow , wasting too much time."
26 In this connection it is noted , although Columber had also resigned from the Committee,
no one was selected to succeed him so far as the record discloses.
88 As heretofore found , Columber and.Oblinger made application to join the Union in
1941, but when the Committee was formed apparently lost interest in the Union.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from work and said that he did not blame Ringhiser for joining the Union ; that
he was "easy" and "let the boys" talk him into it , and that in many places the
men were required to join Unions 27 In July, Sheffield ordered Lowery to stay
away from the firemen 's "shanty" where he had been in the habit of visiting
for a minute or two in the evening to exchange newspapers with the other
employees , and accused him of assisting the Union . He told Lowery that if
the employees organized he would leave the respondent and take his sales force
with him, adding, "They can make this stuff , but they can 't eat it.""
2. The Independent
In the fall of 1943, a'representative of the Regional Office while investigating
charges' of unfair labor practice previously filed against the respondent by
the Union 2e advised the Committee that it was an illegal organization. Shortly
thereafter and by letter dated November 17, 1943, the Regional Office wrote
the Committee and the Union that they had filed a petition for investigation
and certification of representatives pursuant to Section 9 (c) of the Act, wherein
it was stated that the Committee claimed to represent the employees in the
plant and asked that the Committee advise the Regional Office as to its status.
This letter was received by Jacob Robb, secretary of the Committee, who showed
it to Homer Marshall, a member of the Committee. Robb then telephoned to
Forest E. Weinrich, attorney for the respondent, who told Robb he would have
to get another attorney as he was not in a position to advise him in the matter.
Robb and Marshall then took the letter to the office of Attorney C. Wood Bowen,
and it was decided to form another organization, using as a nucleus Robb, Mar-
shall, Dewey, Ringhiser, Dewey Howdyshell, Aaron Norris, and Floyd Donald-
son, at that time on the Committee, and some of the older employees. Bowen
prepared six copies of a document headed as follows :
We, the undersigned employees of the Logan Clay Products Company, of
Logan, Ohio, do hereby create an independent union among all, production
and maintenance employees of said Company, exclusive of clerical and
supervisory employees and those who have power to recommend the hiring
and firing of employees, and such employees as are represented by the
Firemen and Oilers Union, and designate, Homer Marshall, Jacob Robb,
Charles Howdyshell, Dewey Howdyshell, Aaron Borris, Floyd Donaldson,
Charles Poling, Charles Mohler, Dewey Ringhiser, Herbert Marshall and
Harold Daubenmeier, as our representatives for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment and other
conditions of employment. Said-above named representatives are further
empowered to formulate rules and regulations for the governing of said
independent union and to serve in said representative capacity until March
4st, 1944, or until their successors are chosen under said rules and regulations
duly formulated.80
27 Relative to this conversation Sheffield testified that Ringhiser began the conversation
about "what was happening" and that to cut Ringhiser off he said , "Dewey, don 't kid me.
I know you are a member of the A F of L It's all right if you want to . It's a free
country, and it's exactly what you can do any time , and stick ." In view of Sheffield's
open animosity toward union organization in the plant as expressed to other employees
at about the same time as well as previous to the above statements , the undersigned
finds that Sheffield did not approve Ringhiser ' s action in joining the Union.
2s Sheffield did not deny this testimony of Lowery.
29 The Union filed charges June 29 and July 12, both alleging among other things
that the Committee was a company-dominated labor organization.
ao At the time the petition was drawn Bowen suggested that after the organization
had been formally started the members could decide whether they desired also to include
clerical workers in the unit.
THE LOGAN CLAY PRODUCTS COMPANY 829
On the evening of the day on which the foregoing copies were obtained from
Bowen, a meeting was held at the Marshall home attended by practically all those
named in the caption of the petition and a few other employees . Marshall passed
the petition around and all present signed it. During the course of the evening
refreshments were served at Marshall 's expense. During the next few days the
petition was circulated rather freely throughout the plant on company time by
Homer Marshall , Harry Poling, Charles Poling, Wiley Rhodes n and over 90 em-
ployees signed it.
- During this period , on November 23, Robb, who was not only secretary to the
Committee but also held the same position in the Health and Accident Associa-
tion, wrote to the Regional Oflice in reply to the inquiry about the Committee,
above referred to, as follows :
In regard to your letter of November 17th, 1943, we are at a loss to know
how to present this to the Committee of The Health and Accident Associa-
tion of the Employees of The Logan Clay Products Co., as your representa-
tive Mr. Shaw said that we should have no more meetings , so what shall
we do about presenting the letter.
Yours respectfully,
JACOB F. Ross,
Secretary Health & Accident Ass'n of the
Employees of The Logan Clay Prod. Co.12
About the latter part of November the group designated in the caption of the
petition above referred to held an organizational meeting in the Company offices 98
On December 15, a general organizational meeting was held in the American
Legion Hall as attended by 26 employees. Marshall called the meeting to order
and introduced attorney Bowen stating that Bowen had been asked to atteziu
the meeting to direct them in naming a bargaining committee to represent the
employees. All employees named in the caption of the petition, with the excep-
tion of the two Howdyshells and Ringhiser were selected by various groups to
represent them. Charles Mohler and Wylie Rhodes also were selected. The rep-
resentatives of several groups were left open for future selection. Bowen an-
nounced that the committee as selected would be called together in the near future
by Homer Marshall to prepare appropriate bylaws. During the course of the
meeting Robb requested the group to name a person to handle the flower fund 38
Si Sheffield denied that the respondent peimitted circulation of the petition . In this
respect he testified , "The employees took on themselves , probably, to circulate the petitions
sometime during working hours " In view of Sheffield 's later assistance to the respondent,
as will hereafter appear, this denial is not credited
a= Subsequently , in December , 1943, a representative of the Regional office met with
Robb and Sheffield and requested that he be furnished with a list of members of the
Independent and a copy of the respondent 's pay roll Pursuant to this request Robb
as acting secretary of the Independent sent a letter to the Regional office inclosing the
petition signed by employees heretofore referred to, and a copy of the pay roll This
letter was typed on company stationery by the office stenographer from notes furnished
her by Robb.
as This meeting as well as a later meeting of the group to formulate bylaws, also in the
company offices , was without the knowledge or consent of management Robb, a member
of the office clerical torte , had a key to the office and it was customary , because of the
shortage of help, for the clerical employees to work overtime ; so there was nothing
unusual about the offices being occupied in the evening.
-31 The notice, announcing the meeting was posted on the respondent ' s bulletin board
in the plant
as Marie Sines , stenographer in the company offices attended this meeting at the request
of Robb. During the course of the meeting it was voted to include the office clerical
employees in the organization
as The flower fund was for the purpose of purchasing flowers in case of death , accident
or sickness among the employees . Originally the money for this fund was secured by
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounting to about $125.00 which had previously been in the hands of Roscoe-
Mowrey but who was leaving for military service. It was voted to, authorize-
Jacob Robb and Fred Jergensmeier " to name a new treasurer of the flower fund.
It was also voted to invite the office clerical force to join the organization 38 The-
committee, all of whom had presumably been selected by their various groups,
attended a meeting in the respondent's office the evening of January 31, 1944,
where, under the direction of Bowen, bylaws were agreed upon and a meeting
of the organization as a whole arranged for Monday evening, February 7, to vote
on the bylaws and to elect officers.
On February 7, 1944, the full organization met in the Legion Hall and adopted
the bylaws and elected officers as follows: President, Wilbur Stout; 88,Treasurer,
Jacob F. Robb ; and Secretary, Marie Sines.90 The bylaws provided for monthly
meetings and limited membership to the production, maintenance, and clerical'
employees of the respondent The sole revenue provided consisted of annual dues
of $1.00 per member payable in advance. Thereafter printed membership cards
were distributed to all who paid the $1.00 yearly dues. Marie Sines, as'secre-
tary of the Independent, kept a supply of these cards in her desk in the re-
spondent's offices. While there is no evidence of any specific instance of the
collection of She $100 yearly dues or of the distribution of these membership
cards on company time, there is evidence herein credited that the President
of the respondent aided the Independent by encouraging the employees to join
and to solicit members for it. Thus William F. Smith, one of he moulders
who had signed the petition which had resulted, in the formation of the Inde-
pendent, was requested by Sheffield on several occasions to solicit others in his
department to sign Independent cards." In February, Sheffield asked Earl
Poling to take a card urging, "Don't let me down, it only costs a dollar." 42 At the
employee donations, but later and at the time of the hearing the funds were derived from,
the proceeds of a candy vending machine located in the plant
97 Fred Jergensmeier was treasurer of the respondent He was not at the meeting.
No member of management attended this meeting, nor the January committee meeting
hereinafter discussed, or the later general meetings of the Independent.
89 Subsequently a petition was prepared which was signed by the five clerical employees
in the office.
$9 Stout defeated Homer Marshall for the office of president.
40 Sines as acting secretary previously to February 7 had kept the minutes of the Decem-
ber 15 meeting, and also the January 31 meeting of the committee which she attended The
bylaws provided only for a Secretary-Treasurer, but apparently in practice the duties of
secretary and those of treasurer were separated.
4i Sheffield did not deny this testimony of Smith and Poling. Sheffield testified that in,
the spring of 1944 Smith appeared to have a grievance about his work and that, jokingly,
he told Smith that he ought to pay his $1 00 dues to the Independent.
42 Ben Vorhees, employed by another local concern which had a closed-shop contract with
a different Local of the Union, who on the frequent occasions when his employer was closed
-down sought temporary work elsewhere, testified that in December, 1943, he went to Shef-
field's office and asked for a job ; that Sheffield asked if he would "forget" the Union if he-
gave him a job, and added that he would shut down the plant before he would permit the
respondent's employees to organize Sheffield denied that he made the above statements,
or that he ever talked to Vorhees in his office The previous summer Vorhees worked a
month for the respondent on Sheffield's recommendation. In March, 1944, with Sheffield's
knowledge, Blackburn gave Vorhees a job starting the following Monday. Monday Vorhees
did not work because his wife was sick. He did not report thereafter although Blackburn
kept the job open several weeks for hint. (Vorhees explained that he failed later to report
because Homer Marshall told him he would have to pav a dollar to work for the respondent.
He did not, however, report Marshall's statement to management.) Two or three weeks
before the hearing Sheffield offered Vorhees a job at a plant of his near Logan. Vorhees
was not an impressive witness. Because of this and `the fact that he had worked for the
respondent prior to December, 1943, and had been offered employment by it thereafter,
Sheffield's denial is credited.
THE LOGAN CLAY PRODUCTS COMPANY , 831
April 3, 1944, meeting, printed notice of which was posted on the company bulletin
board, the members authorized President Stout to request the respondent to
bargain with the Independent. On April 4, Stout went to the respondent's office
and dictated to Marie Sines the following letter :
Mr. E. K. SHEFFIELD, President,
The Logan Clay Products Company, Logan, Ohio.
DEAR MR. SHEFFIELu : At the regular meeting of the Independent Union,
of the Logan Clay Products Company Employees, held last evening, Mon-
day, April 3rd, 1944, at the D. of A. Hall, Logan, Ohio, through motion duly
made, seconded and carried, I was elected as a committee of one to contact
you as to whether or not The Logan Clay Products Company would recognize.
our organization as bargaining agent.
Your prompt reply will be appreciated.
Respectfully,
WILBUR M. STOUT, President,
The Independent Union of the Logan
WMS: MS. Clay Products Company Employees.
The same day Robb handed to Stout in front of the offices the following reply
from Sheffield :
WILBUR STOUT, President,
Independent Union of the
Employees of the Logan Clay Products Company,
Logan, Ohio.
DEAR MR. STOUT: In response to your letter of today, in which you stated
that you were a committee of one to contact the Company as to The Logan
Clay Products Company recognizing your organization as a bargaining
agency for all the employees of The Logan Clay Products Company.
I have taken this matter up with our Attorney, Mr. Forest E. Weinrich,
and,he has advised me that when you have fifty-one per cent of the employees
that I am compelled by Federal Law to recognize your organization as the
bargaining agency for the employees of The Logan Clay Products Company.
I do understand that there are ninety, or more, employees signed up with
your organization. If I am not correct kindly advise me.
Yours very truly,
E. K. SHEFFIELD , President,
The Logan Clay Products Company."
EKS : MS
On April 5, Stout dictated to Sines in the respondent's offices the following
letter :
Logan, Ohio
April 5, 1944
Mr. E. K. SHEFF iE D, President,
The Logan Clay Products Company, Logan, Ohio.
DEAR MR. SHEFFIELD: Please be informed that, as of today, April 5th, 1944,
the records of The Independent Union of the Employees of The Logan Clay
Products Company show a membership of one-hundred and six members,
which represents 75 17% of the total one-hundred and forty-one employees
93 Copies of the petition , signed by employees other than clerical workers , had been in-
troduced in evidence at the representation hearing December 29, 1944 , held pursuant to the
Union ' s petition heretofore referred to.
618683-45-vol. 59-54
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of The Logan Clay Products Company eligible to belong to our organiza-
tion.
, Respectfully,
WMS : MS
WILBUR M. STOUT, President,
The Independent Union of the
Employees of the Logan Clay Products Company'
#?ursuant to this correspondence at least one conference was held by repre-
sentatives of the Independent relative to a collective bargaining contract.
Conclusions
The,Committee was organized'in 1941 as a direct result of the respondent's oppo-
sition to the Union. At that time President Sheffield told the employees that
,if the organizing efforts were successful he and his sales force would resign.
The employees knew that, unlike his predecessors, Sheffield's management of the
plant was successful. " Orders were coming in for the' products and work was
steady. The company's indebtedness, including back wages, was being reduced.
Hence, Sheffield's statement constituted a real threat of loss of work and back
pay. Although at the time Sheffield acquiesced in the suggestion that the
employees select representatives from their members to deal with um ag-
went, the Committee that developed as a result included a forema_i iid one
.employee, Columber, selected by Sheffield. It had no bylaws nor means of
revenue. It was entirely dependent upon management for support It met on
company time and property almost exclusively at Sheffield's call and he actively
participated in most of its discussions concerning wages, hours, and working
,conditions. In 1942, while the Company was functioning as above found
and the CIO attempted to organize the employees, Sheffield again told the em-
ployees that they did not need a union. At that time the respondent permitted ,
Romer Marshall, a member of the Committee, to freely circulate a petition
among the employees to the effect that they did not need a union. The respondent
-paid one employee to drive a considerable distance in an effort to secure an
absent employee's signature to the petition. Sheffield asked employee Blake to
sign and criticized Oblinger for refusing to sign. The same year when the few
boilerhouse employees became interested in joining the Firemen, Sheffield ques-
tioned employees Blake and -Lowery relative to these activities and said to
Lowery, "What do you want to do, shut the plant down"? Later in the year
he told the boilerhouse employees that "his boys" took care of any employees who
talked labor organization. In the early part of 1943 when Oblinger became active
.on behalf of employees' grievances Sheffield asked him to resign from the Com-
mittee. When the Union renewed its organizing drive in 1943 Sheffield told
Ringhiser after he joined that he had "turned traitor", that he was "easy" and
let "the boys" talk him into it He accused Lowery of assisting the Union and
reiterated that if the employees organized he would leave the respondent and
take his sales force with him.
The respondent contends that in 1941 Sheffield was confronted with the threat
by Director Collins to withdraw his financial support in the event of union
.organization of the plant, in which event the plant would necessarily have closed
and all the employees, including Sheffield, would have been out of work ; and
that in the speech Sheffield merely passed on the facts to the employees. There
is no adequate proof that the plant did face a shut down if the, organizing was
44 Stout secured the information in the letter relative to the total number of employees
.eligible for membership in the Independent from Miss Sines.
THE LOGAN CLAY PRODUCTS COMPANY 833
successful. Collins was not called as a witness. Although Sheffield testified
that Collins had previously told him he feared a strike if the employees organized,
.Sheffield admitted that at the time there was no talk of threat of a strike.
.Furthermore, this contention does not explain Sheffield's suggestion during the
organizational efforts in 1942 that the plant might be closed, when, so far as the
.record discloses, Collins was not in the picture. More important, the Act gives
no immunity for an employer to interfere with his employees' right to organize
tbecause in the employer's judgment such organizing would injure his business.
It was in this atmosphere of criticism by the respondent of the need of any
outside union and support and domination of the Committee, that activities for
the Union were renewed in 1943. Dewey Ringhiser, who had succeeded Oblinger
as a member of the Committee, signed a Union application card and was accused
by Sheffield of having "turned traitor on him" and was told that he was "easy"
and "let the boys" talk him into joining the Union. In July on learning that
Lowery was assisting the Union, Sheffield restricted his normal movements at
work and told Lowery that if the plant was organized he would leave the respond-
ent and take his sales force with him. That fall, as a result of criticism by a
Regional Office investigator that the Committee was company dominated, the
respondent discontinued paying members of the Committee for time spent at
meetings, and a movement for a new organization was started by most of the
members of the Committee and a few older employees. Petitions for the new
organization were freely circulated on company time and property and notices
of later meetings were posted on the respondent's bulletin board. The respondent
also assisted the Independent by (a) Sheffield's urging of employee Smith to
solicit for the Independent in his department and Sheffield's personal solicita-
tion of Earl Poling to join that organization, and (b) promptly recognizing the
Independent when requested without a card check as to its majority status. This
hasty recognition of the Independent in April, 1944, was in contrast with the
respondent's response to the Union's request for recognition the previous Novem-
ber, when the respondent denied that the Union had a majority.
Although the Independent formally organized, adopted bylaws and elected offi-
cers, its bargaining set-up was essentially the same as the more informal Com-
mittee it succeeded and consisted of a representative from each group of the
employees, some of whom were former Committee members. The bylaws of the
Independent as adopted provided for only a nominal revenue of $10'0 per year
from each member. Officers elected included as treasurer Jacob Robb, former
secretary of the Committee and as Secretary Marie Sines who as stenographer
in the respondent's office occasionally wrote confidential letters for Sheffield
involving labor relations. On April 4 and 5 both sides using Sines as an amanuen-
sis "correspondended" relative to bargaining, the respondent, through Sheffield,
writing that it understood the Independent had "ninety or more" of the employees
"signed up" and was compelled by law to recognize the Independent if it repre-
sented 51 percent or more of the employees. The next day the Independent
advised the respondent by letter that it had as members 106 of the respondent's
141 employees. The respondent then began negotiating with the Independent on
the terms of a contract.
The Committee, as such, has not functioned since the respondent was advised
of its illegality in the fall of 1943 and the organizing for the Independent began.
46 As a result of the representation hearing the previous December, the respondent had
knowledge that a majority of its employees had signed the petition out of which the Inde-
pendent developed but it made no request to see the membership cards after the Indepen-
dent was organized.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aside from refusing thereafter to, pay the Committee members for their time-
-or permitting them to use the company's facilities, the respondent took no,
action of any kind to disestablish the Committee that might have served the
purpose of "wiping the slate clean and affording the employees an opportunity to'
start afresh in organizing for the adjustment of their relations with the em-
ployer." 46 On the contrary, it actively assisted the successor organization in_
becoming established and thereafter rendered it substantial support. There was
no break between the two organizations and the Independent took over where-
the Committee left off. It was merely a formalized revision of the Com-
mittee and the support rendered it must have convinced the most naive employee-
that the respondent favored the Independent.
It is therefore found that the respondent has dominated and interfered with
the formation and administration of the Committee and of its successor the
Independent and has contributed support to them ; and that by such interference,
support and domination, and by the aforesaid acts and by the threats and state-
ments of President Sheffield in opposition to self-organization the respondent
has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act"
C. The release of Oblinger
The complaint alleges and the answer denies that Oblinger was discriminatorily-
discharged on or about December 13, 1943, and since that time has been refused
reinstatement.
As heretofore found Oblinger and John Columber were the only two branchers=
employed by the respondent, and both worked as partners in that capacity in the
-moulding department for several years. Both were active in union affairs in
the plant, in 1941, for the Union and then on the Committee. When the CIO
attempted to organize in 1942 Oblinger was criticized by Sheffield for not signing
the anti-union petition then being circulated and in early 1943 he resigned from
the Committee at Sheffield's request because of his activity thereon. Columber's
employment with the respondent dates back to 1922. Oblinger also started that
year with the respondent, but left its employment voluntarily in 1929. After a
number of years working for other concerns, during which period he may also
have worked at intervals for the respondent when it was operating, he returned
to the respondent's plant in 1939 and remained until the time of his release
in December 1943. When the Union drive was renewed both Oblinger and Colum-
ber renewed their membership therein about. June 1943, and were elected presi-
dent and secretary, respectively, of the Local. As the Local held no meetings and
transacted its business through the Council which met once a month, management
was not aware that they held these official positions. Of the two, Oblinger was
the more active in soliciting union memberships, of which fact management had
knowledge."
About the 1st of November, 1943, Oblinger began to help out evenings at the
neighborhood grocery store of his friend, George McVey, but continued to work'
his regular 12 hour day shift at the plant. McVey was not in very good health
and about the middle of the month Oblinger began to negotiate for the purchase
46N. L R. B v. Newport News Shipbuilding and Dry Dock Co., 308 U S 241, 250.
47 In the Matter of Sperry Gyroscope Co., etc, 36 N L. R. B. 1349. In the Matter of
Standard Oil Co, etc, 43 N L. It. B. 12: enforced 138 F. (2d) 885 (C. C. A. 2).
48 In response to a question as to whether he knew Oblinger was active in the 1943 drive
for members Sheffield answered, "The only way I could judge that was his talking to var-
ious men around the plant during working hours" and that both he and Blackburn thought
Oblinger was talking for the Union.
i
THE LOGAN CLAY PRODUCTS COMPANY 835
of the store. With this possible purchase in mind he asked his foreman, Black-
'burn, if there was any chance of his getting a 30-day leave. Blackburn replied
that in view of the need for production he could not decide a request for such an
-extended leave but would have to take it up with his superiors. Apparently
nothing further was done by Blackburn about the request, and Oblinger did not
again broach the subject to his foreman. Tuesday night, December 7, Oblinger
suddenly arranged to purchase the store when it developed that the regular
clerk had become ill and McVey was unable to run the store without his help.
As a result of the purchase, Oblinger, without notifying the respondent, did not
report at the plant for work on Wednesday, December 8, or thereafter but
worked in his store.
On December 9, Foreman Blackburn, having heard that Oblinger had pur-
chased and was running the store, discussed with Columber the possibility that
Oblinger might work in the plant 2 or 3 days a week and run the store the
rest of the week 4° Columber stated that if such was the plan he would not
work with Oblinger as it would not be fair either to Columber or the man 60
who substituted for Oblinger during the latter's absence.01 Blackburn waited
until Monday morning , December 13 for Oblinger to report . When he did not
do so, Blackburn , after telling Sheffield that he thought Oblinger had quit his
job and gone into the grocery business, instructed the pay-roll clerk to send
Oblinger his check and separation notice.
In the meanwhile, early Saturday afternoon after the plant had closed for
the week, Vice-president and Sales Manager Holl, a former customer of McVey's,
came to Oblinger's store to make some purchases. While Holl was in the store,
Oblinger told about his purchase of the business and requested Holl to try
to get him a 30-day leave of absence from the plant. Holl agreed to do what he
could for Oblinger 62 Monday, Holl was busy with his mail and did not do
anything about Oblinger's request until late in the morning. He then ascertained
-that Oblinger's separation notice and check were being prepared under instruc-
tions from Foreman Blackburn. Later in the day he talked to Blackburn who
told him that Oblinger had left his job without permission; that a few days
-before,Oblinger had requested a 30-day leave and Blackburn had told Oblinger
that he had no authority to grant the request ; and that Oblinger's partner,
,Columber, had complained about Oblinger's action in purchasing the store
.and leaving the respondent.
On the following Tuesday Oblinger received his check in full; a separation
slip, his accumulated bonus and a letter from the respondent 's pay-roll clerk
dated December 13 which stated:
'Enclosed you will find your wages in full, balance due you on your Bond
Account, statement of wages earned and tax 'withheld during current year
and Statement of Availability, pursuant to Mr. Blackburn's instructions.
We wish you good fortune in your new enterprise since we naturally
always want employees when leaving us to advance themselves. -
's Sometime before this, Blackburn had permitted ' a man by the name of Burchen who
worked , in the set gang to leave for 2 or 3 days on occasion when the set gang was not too
busy, so that Burchen could work on his farm. Burchen , however, abused the privilege
and overextended his leaves . Blackburn told Burchen he would have to report when in-
structed to do so or leave.
'° Sheline , -who had been training as a brancher under Columber for a number of months.
The previous summer Sheffield had asked Columber, who was head brancher , to suggest
someone who could be trained as a brancher and Columber had recommended Sheline.
m This finding is based upon a reconciliation of the testimony of Blackburn and Columber.
62 The finding as to the Saturday conversation is based on a reconciliation of the testi-
mony in that respect of Oblinger and Holl.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On receipt of this letter Oblinger made no effort, to get- in touch with Blackburn,
or the officials of the respondent, but the following Thursday when Holl was
in the store Oblinger mentioned the receipt of the release papers, and commented
that the respondent's attitude toward him appeared peculiar in view of the
fact that others who had laid off were not released. Holl replied that he could
not help Oblinger ; that he had inquired as to the situation and found out that
Columber was opposed to Oblinger working part time in the plant."
At the time of the hearing Oblinger was still running the store. He testified
that the transfer of the store took longer than he had anticipated and that was
why on Saturday, December 10, he requested Holl to see if a 30-day leave could
not be secured, as he expected to continue to work for the respondent and also
run the store. He further testified that if he had known that the leave would
not be granted he could have reported for wQrk at the plant within a day as
the store did not take all his time. He did not, however, testify that he could
have continued to work steadily in the plant and, conduct the store. McVey,
although ill towards the last'found it necessary to employ a full-time clerk and
also for a month had the evening help of Oblinger. It is a reasonable assumption
herein found, especially in view of the comments in this respect by Columber
and Blackburn heretofore found, that Oblinger could not have worked steadily
for the respondent and also run the store.
Testimony was adduced by the respondent to prove that Oblinger and to some
extent Columber were not diligent when doing hourly work but spent considerable
of their time talking to other employees about the Union. No criticism, however,
was ever made to either of them relative to their work. In view of this lack
of criticism, the fact that Columber is still working for the respondent, and
the further fact that the respondent contends that Oblinger was not discharged
for poor work or for any other reason, but quit his job, no finding as to Oblinger's
previous work record is necessary. However, the testimony of Sheffield, Black-
burn, and Holl that Oblinger spent too much of his time talking, considered with
the undenied testimony of Earl Poling, herein credited, that in the fall of 1943
Sheffield told him that when the opportunity came he would weed certain men
out, including Oblinger, indicates that the respondent was looking for an oppor-
tunity to get rid of Oblinger.
Conclusions
While the above circumstances, considered with the anti-union attitude of the
respondent, heretofore found, raise some doubt as to the good faith of the re-
spondent in dealing with Oblinger in view of his prominence in union activities,
the undersigned is convinced that in December 1943, Oblinger by his-acts justi-
fied the respondent in assuming that he would not be available for steady
employment. In anticipation of entering business for himself he asked for a
30-day leave but gave no reason for such request. Blackburn's reply, that because
of production demands he would have to take the request up with higher officials,
gave Oblinger no warrant to assume that the request would be granted. Al-
though he had at least two weeks' time thereafter, he did not press for a final
decision. When he took over the store on December 7 and thereafter did not
report for work, or explain why, the only information the respondent had was
that he had gone into business for himself and at best would only be able to
work part time. This was not satisfactory to his partner, Columber, or to the
respondent. Certainly in these days of production need and manpower shortage
13 The finding as to the Thursday conversation is a reconciliation of the testimony thereto.
of Oblinger and Holl.
THE LOGAN CLAY PRODUCTS COMPANY 837
an employer has a right to assume that an employee will be on hand when-
needed. An employee who picks and chooses his own time to work, or puts him-
self in a position where he is unable to work more than half the time, is, in'
effect, notifying his employer that he considers his job unimportant. This was
particularly true in Oblinger's case where the two branchers were doing import-
ant work in the clay pipe production process. Evidence was adduced to prove
that other employees had stayed away from work but in these instances where
the employee is still with the respondent he was away from work because of
sickness of which the respondent had knowledge, or there was no proof that he
had not been temporarily excused. Burchen, heretofore referred to, and N. J.
Cox, who remained away from work without permission, are no longer with the
respondent.64
Oblinger's belated request to Sales Manager Holl, when the latter appeared
in the store on Saturday afternoon, to see if a 30-day leave could be obtained
could only have the effect of confirming the respondent's previous information;
that Oblinger had gone into business for himself and would therefore continue,
to be unavailable for steady employment.
It is therefore found that the respondent has not discriminated as to the hire,
and tenure of employment of Oblinger.
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 described 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.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, it
will be recommended that it cease and desist therefrom, and take certain affirma-
tive action necessary to effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation and administration of the Committee and with the formation andi
administration of its successor, the Independent. Since the Committee no longer
exists as such and there appears no likelihood of its reestablishment, no recom-
mendation will be made herein with respect to it. Since the respondent has in
effect recognized the Independent as the representative of its employees for the
purposes of collective bargaining, and such recognition constitutes a continuing,
obstacle to the free exercise by the employees of their right to self-organization,
and to bargain collectively through representatives of their ovyn choosing, it
will be recommended that the respondent cease and desist from recognizing the
Independent, or any reorganization thereof, as the representative of its em-
ployees for the purpose of dealing with it concerning grievances, labor disputes,-
wages, rates of pay, hours of employment, or other conditions of employment,
and disestablish the Independent as such representative.
Upon the basis of the foregoing findings of fact and upon the entire record in,
the case, the undersigned makes the following :
64 Sheffield testified that, if an employee did not show up for work for five days without
permission , the respondent assumed that he had quit his job. No rule was posted and no
foreman or employee knew about it. Blackburn testified that, after the Burcben incident,
management "figured that five days was enough for a man to stay off of a job, and not know
where we were at."
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONOLusIONs OF LAW
1. The Committee was a labor organization , and the United Brick & Clay
Workers of America, Logan Local No. 899, AFL , and The Independent Union of
the Employees of The Logan Clay Products Company, are labor organizations,
within the meaning of Section 2 ( 5) of the Act. J
2. By dominating and interfering with the formation and administration of
and by contributing support to the Committee and the Independent the respond-
ent has engaged in and is engaging in unfair labor practices , within the mean-
ing of Section 8 (2) of the Act.
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 practices are unfair labor practices affecting
-commerce, within the meaning of Section 2 (6) and ( 7) of the Act.
5. The respondent has not discriminated with regard to the hire and tenure
,of employment of Lawrence Oblinger within the meaning of Section 8 (3) of
the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent , The Logan Clay Products Company,
Logan, Ohio, its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration and contributing
financial or other support to The Independent Union of the Employees of the
Logan Clay Products Company, o r any other labor organization of its employees ;
(b) Recognizing The Independent Union of the Employees of the Logan Clay
Products Company as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances , labor disputes , wages,
rates of pay , hours of employment , or conditions of work ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization , to form labor organi-
zations, to join or assist United Brick & Clay Workers of America, Logan Local
No. 899, A. F. L ., or any other labor organization , 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 guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act :
(a) Withdraw and withhold recognition from The Independent Union of the
Employees of the Logan Clay Products Company as a representative of any of
its employees for the purpose of dealing with the respondent concerning griev-
ances, labor disputes , wages, rates of pay, hours of employment , or other condi-
tions of 'employment , and completely disestablish The Independent Union of the
Employees of the Logan Clay Products Company as such representative ;
(b) Post immediately in conspicuous places throughout its plant at Logan,
Ohio, and maintain for a period of at least sixty ( 60) consecutive days from the
date of posting , notices to its employees stating: (1) that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraphs 1 (a), (b), and ( c) hereof; and ( 2) that the respondent will take
the affirmative action set forth in paragraph 2 (a) of these recommendations;
THE LOGAN CLAY PRODUCTS COMPANY 839
(c) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respond-
ent has taken to comply herewith.
It is also recommended that, unless on or before ten (10 ) days from the receipt
of this Intermediate Report the respondent notifies said Regional Director in
writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the complaint be dismissed insofar 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 Lawrence Oblinger.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 20,
1943, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board, Ro-
chambeau Building, Washington , D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or ob-
jections ) as he relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and/or brief , the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the Re-
gional Director. As further provided in said Section 33, should any party desire
permission to argue orally before the Board, request therefor must be made in
writing within ten (10 ) days from the date of the order transferring the case
to the Board.
J. J. FITZPATRICK,
Trial Examiner.
Dated August 15, 1944.