Owens-illinois Glass Company And Federation Of Flat Glass Workers Of America, 92 (1940)

In the Matter of OwENS-ILLINOIS GLASS COMPANY and FEDERATION OF FLAT GLASS WORKERS OF AMERICA Case No. C-S30.-Decided July 5, 1940 Jurisdiction: glass manufacturing industry.

Unfair Labor Practices In General Respondent held responsible for anti-union remarks of supervisory employee where said supervisory employee prefaced an anti-union address to employees under his direction with the statement that he was speaking on his own responsibility and not for the respondent.

Interference, Restraint, and Coercion: espionage and surveillance; attempts to bribe employee to act as informer; anti-union statements; interrogation concerning union activities; threats of discrimination as to tenure of employment; advance announcement of refusal to grant recognition to union;

threatened cessation and removal of operations.

Discrimination: discharges, lay-offs, and transfers to temporary work, because of union membership and activities; charges of discrimination concerning certain employees dismissed.

Remedial Orders: reinstatement and back pay awarded.

Mr. Robert H. Kleeb, for the Board.

Williams, Eversman & Morgan, by Henry A. Middleton, of Toledo, Ohio, for the respondent.

Mr. W. T. Lewis and Mr. Harry B. Holmes, of Columbus, Ohio, for the Union.

Mr. Ivar Peterson, of counsel to the Board.

DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge filed May 22, 1939, by Federation of Flat Glass Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by Charles T. Douds, Regional Director for the Sixth Region (Pittsburgh,

Pennsylvania), issued its amended complaint dated May 27, 1939, against Owens-Illinois Glass Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of the amended complaint, accompanied by notice'of hearing, were duly served on the respondent and the Union.

With respect to the unfair labor practices, the amended complaint, as amended at the hearing,2 alleged in substance that the respondent, at its Fairmont, West Virginia, plant: (1) laid off and refused to reemploy 26 named employees, including Anthony Laratta, on or about certain specified dates in July, September, and October, 1937, because of union membership and activity; recalled Anthony Laratta on or about September 20, 1937, to work in another department, and laid him off on or about November 20, 1937, because of his membership and activity in the Union and because he refused to report to supervisory officials of the respondent concerning the activities of fellow employees in behalf of the Union; discharged, and thereafter refused to reemploy, James Shaffer on July 14, 1937,

Harry E. Stuttler on August 4, 1937, and P. L. Taylor on September 21, 1937. because of their membership and activity in the Union;

demoted Francis M. Daugherty on or about October 25, 1937, and thereafter refused to reinstate him to his former position, laid off the said Daugherty on or about June 6, 1938, for a period of about 7 days, and laid him off on or about September 15, 1938, and thereafter refused to reemploy him, because of his union membership and activity; and (2) by the foregoing acts; by permitting, authorizing, instigating, and acquiescing in, at its Fairmont plant and elsewhere, the following acts: (a) demonstration to employees by 'various and sundry methods' of its hostility to the Committee for Industrial Organization 3 and/or the Union, (b) demonstration to employees by 'various and sundry methods' of its hostility to their concerted activity in the Committee for Industrial Organization and/or the Union, (c) statements tending to discourage union activity and membership, (d) coercing and intimidating persons soliciting union memberships to cease such activity, and threatening to close the Fairmont plant if a substantial number of employees at that 'On February 7, 1939, the Board ordered that the record theretofore made in this cause, with the exception of the charge and amended charge, the pleadings and the motions directed to the pleadings, be set aside and that a new hearing be held. The original complaint had been issued February 5, 1938, and the former hearing was held between February 17 and March 5, 1938. Owens-Illinois Glass Company and Federation of Flat Glass Workers of 2 The amended complaint was amended at the opening of the hearing to allege that Local No. 55 of the Union and that Congress of Industrial' Organizations, herein called the C. I. O., are labor organizations; to allege that the date of discharge of James Shaffer was July 14, 1937, rather than July 12, 1937; and to allege that Roger Anselene was laid off on July 14, 1937, rather than July 13, 1937.

SNow Congress of Industrial Organizations.

plant became affiliated with the Union, and (e) spying on union meetings and employees' union activity; and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.

On June 5, 1939, the respondent filed its answer, admitting the allegations concerning the nature and interstate character of its business, denying all material allegations that it had or was engaged in unfair labor practices, and praying that the amended complaint be dismissed.

In its answer, and in a separate motion filed therewith, the respondent requested and moved that the amended complaint be made definite with respect to subparagraphs (a) and (b) of paragraph 4 by stating specifically the facts relied upon as 'various and sundry methods' or, in the alternative, that said subparagraphs be stricken.

Pursuant to the notice, a hearing was held at Fairmont, West Virginia, from June 12 to August 4, 1939, before William R. Ringer, the Trial Examiner duly designated by the Board. The respondent and the Board were represented by counsel. All parties participated in the hearing and were afforded full opportunity to examine and crossexamine witnesses, and to introduce evidence bearing on the issues.

At the opening of the hearing the respondent renewed its motion that the amended complaint be made definite, which motion had not been ruled upon by the Regional Director. The Trial Examiner deferred ruling thereon, suggesting that counsel for the Board furnish counsel for the respondent with a memorandum of particulars clarifying the phrase 'various and sundry methods' appearing in subparagraphs (a) and (b) of paragraph 4 of the amended complaint. On June 15, the fourth day of the hearing, counsel for the Board submitted a memorandum designed to particularize the facts described as 'various and sundry.' Thereupon the Trial Examiner overruled the motion. The respondent contends that the particulars furnished by counsel for the Board in fact are similar to other allegations of the amended complaint, and that therefore subparagraphs (a) and (b) of paragraph 4 should have been stricken as redundant. The respondent further claims prejudice in that the Trial Examiner, in overruling the motion, relied upon the statement by counsel for the Board that the incidents would be the same as in the former hearing, whereas in fact new matter was gone into contrary to such representation. We do not believe that the respondent was prejudiced by these circumstances.

Assuming that subparagraphs (a) and (b) of paragraph 4 of the amended complaint, as amplified by the memorandum of particulars, are repetitious and redundant, then they add nothing and constitute mere surplusage. With respect to the second point, the Trial Examiner stated that, if new matter were brought in, a reasonable time would be allowed the respondent to prepare and present its defense to such new matter. No request for such extension of time was made by the respondent. The ruling of the Trial Examiner is hereby affirmed.

The respondent filed, at the opening of the hearing, an application for subpoena duces tecumn calling for the production by the Union of all membership application cards signed by complainants and by other employees between May 1 and October 27, 1937, all records of union action upon said applications, and all records containing any reference to or action upon the complaints filed with the Board by any of the complainants. The Trial Examiner took the application under consideration. At the opening of the hearing on June 16 the Trial Examiner denied the application on the ground that the material requested was immaterial at that stage of the proceedings, but stated that the application could be renewed at any time. On June 19 the application was renewed. Counsel for the Board then agreed to make available to the respondent the membership application cards of complainants and of those employees named by complainants as having been induced by them to sign membership applications. Thereafter the respondent's counsel was permitted to examine all application cards bearing a date prior to January 1, 1938, and the 1937 application cards were introduced in evidence by counsel for the Board. At the close of the Board's case, cross-examination of the secretary of Local No. 55 developed that the union records did not contain the other information sought by the application for subpoena.

The respondent contends that, since all the information requested in the application for subpoena was ultimately ruled competent, the application should have been granted and the information furnished at the opening of the hearing, and that the respondent was thereby prejudiced in its cross-examination of many of the complainants and in the preparation of its defense. We are of the opinion that the respondent's contention is without merit. The application cards of complainants were supplied on June 19, the beginning of the second week of the hearing, and the cards of...