Cabot Carbon Co.

National Labor Relations Board - Board Decisions

May 17, 1957

117 N.L.R.B. 1633 (N.L.R.B. 1957)

CABOT CARBON COMPANY 1633
the Regional Director, give further consideration to the disposition
of the challenge to Foxx's ballot.
[The Board directed that, the Regional Director for the Eighteenth
Region shall, within ten (10) days from the date of this decision, open
and count the ballots of employees Elizabeth Carlson, William
Bowton, Clarysse Ness, and Esther Wyman, and serve upon the par-
ties a revised tally of ballots. If the ballot of Charles Foxx does not
affect the results of the election, the Regional Director shall issue a
certification of representatives if the Petitioner has received a majority
of the valid votes cast, or shall issue a certification of results of election
if the Petitioner has not received a majority of votes cast. If Foxx's
ballot does affect the results of the election, the Regional Director is
directed to advise the Board so that appropriate action may be
taken.] ,
[The Board ordered the above-entitled matter referred to the
Regional Director for the Eighteenth Region for disposition.]
Cabot Carbon Company and Cabot Shops, Inc. and Interested
Parties: Central Committee, Southwestern Division, Employee
Committee, Canal Plant, Employee Committee, Dixon Plant,
Employee Committee, Kermit Plant, Employee Committee,
Pampa Plant, Employee Committee, Schafer A Plant, Em.
ployee Committee, Schafer B Plant, Employee Committee, Ville
Platte Plant, Employee Committee, MIN R & D Plant, Em-
ployee Committee, Cabot Shops, Employee Committee, Ord-
nance Plant, Employee Committee, Estes Plant, Employee
Committee, Keystone Plant, Employee Committee, Pampa
Office, Employee Committee, Schafer Laboratory, Employee
Committee, Pampa Warehouse, Employee Committee, Walton
Plant and International Chemical Workers Union , AFL-CIO.
Case No. 15-CA-777. May 17,1957
DECISION AND ORDER
On December 4, 1956, Trial Examiner Lee J. Best, issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief, and the General Counsel filed a brief.
117 NLRB No. 211.
42378-4 5 7--vol 117 104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents Cabot Carbon Company,
and Cabot Shops, Inc., their officers, agents, successors, and assigns,
shall :
1. Cease and desist from:
(a) Assisting, dominating, contributing financial or other support
to, or interfering with the election and administration of the Em-
ployee Committees and Central Committee named as interested parties
herein, or any other labor organization.
(b) Otherwise interfering with the representation of their em-
ployees by or through any labor organization of their own choosing.
(c) Recognizing the Employee Committees and the Central
Committee, or any successors thereto, as the representative of any of
their employees for the purpose of dealing with Respondents con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or condition of work.
2. Take the following affirmative action designated to effectuate the
policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish the Employee Committees and Central Committees named
as interested parties herein, or any successors thereto, as the repre-
sentative of any of its employees for the purpose of dealing with
Respondents concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
(b) Post at all of their plants, installations, and offices in the
Southwestern Division of Godfrey L. Cabot, Inc., copies of the notices
attached hereto and marked "Appendix A" and "Appendix B," respec-
1 We adopt the Ti tal Examiner's recommended dismissal of the allegations of inde-
pendent violations of Section 8 (a) (1) of the complaint and also his recommended dis-
missal of the Section 8 (a) (3) allegations of the complaint as no exceptions were filed
thereto
CABOT CARBON COMPANY 1635
tively.2 Copies of said notices to be furnished by the Regional
Director for the Fifteenth Region, shall, after being duly signed by
its authorized representative, be posted by each of the Respondents
immediately upon receipt thereof, and be maintained by it for a
period of sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable measures shall be taken by the Respondents to insure that
such notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifteenth Region (New
Orleans, Louisiana) in writing, within ten (10) days from the date of
this Order, as to the steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents violated the Act
other than as found herein.
2 In the event that this Ordei is entot ced by a decree of a United States Court of
Appeals, there shall be substituted for the words " Pursuant to a Decision and Order," the
words "Pursuant to a Deci ee of the United States Court of Appeals, Enforcing an Order
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT assist, dominate, contribute financial or other
support to, or interfere with the election and administration of
the Employee Committees and the Central Committee or any
other labor organization of our employees.
WE WILL NOT in any like manner interfere with the represen-
tation of our employees by or through a labor organization of
their own choosing.
WE HEREBY disestablish the Employee Committees and Central
Committee as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions
of work, and WE WILL NOT recognize them or any successors
thereto for any of the foregoing purposes.
CABOT CARBON COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL NOT assist, dominate, contribute financial or other
support to, or interfere with the election and administration of
the Employee Committees and the Central Committee or any
other labor organization of our employees.
WE WILL NOT in any like manner interfere with the representa-
tion of our employees by or through a labor organization of their
own choosing.
WE HEREBY disestablish the Employee Committees and Central
Committee as the representative of any of our employees for the
purpose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work,
and WE WILL NOT recognize them or any successors thereto for
any of the foregoing purposes.
CABOT SHOPS, INC.,
Employer.
Dated---------------- By-----------------=-------------------
(Repiesentative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings brought under Section 10 (b) of the Labor Management
Relations Act, 1947, 61 Stat. 136 (herein called the Act), were heard before the
duly designated Trial Examiner at Franklin, Louisiana, on June 5, 6, 7, 8, 11, 12,
13, 14, and 15, 1956, and at Pampa, Texas, on July 10, 11, 12, 13, and 14, 1956,
pursuant to notice duly served upon all parties. On November 24, 1954, March
28, 1955, and May 13, 1955, respectively, the International Chemical Workers
Union, AFL-CIO 1 (herein called the Union) filed unfair labor practice charges
against Cabot Carbon Company, Canal Plant, Franklin, Louisiana. Thereafter,
on July 18, 1955, September 20, 1955, and April 6, 1956, respectively, the Union
filed third, fourth, and fifth amended charges to the same effect alleging that Cabot
Carbon Company, Southwestern Division, and Employers' plants listed in attached
Appendix "A," viz. Canal Plant, Dixon Plant, Kermit Plant, Pampa Plant, Schafer
A Plant, Schafer B Plant, Ville Platte Plant, Cabot Shops (Pampa Plant) [emphasis
supplied], Ordnance Plant, Estes Plant, Keystone Plant, Walton Plant, Pampa
Office, Mills R & D Plant, Schafer Laboratory, and Pampa Warehouse, engaged in
and are engaging in unfair labor practices , affecting commerce within the meaning
of Section 8 (a), subsections (1), (2), and (3) of the Act. Based upon the fore-
going charges, General Counsel of the National Labor Relations Board, separately
called herein the General Counsel and the Board, on April 20, 1956, issued a
complaint, which was amended on` May 28, 1956, against Cabot Carbon Company
,
Desi,nat on amended pursuant to merger of American Federation of Labor with
Congress of Indeatn it Oi ciuiizations effectii e Deceuibei .-i, 195S
CABOT CARBON COMPANY 1637
and Cabot Shops, Inc., alleging in substance that Respondent , Cabot Carbon
Company, engaged in and is engaging in unfair labor practices in violation of
Section 8 ( a), subsections ( 1), (2), and ( 3) of the Act by (1) interrogating em-
ployees concerning their union activities and by requiring them to perform extra
and more arduous work since advent of the Union ; ( 2) assisting , dominating, con-
tributing financial support to, and ' otherwise interfering with the formation and
administration of certain employee committees alleged to be labor organizations;
and (3 ) discriminating in regard to the hire and tenure of employment of Ed
Wilgus (employee ) by reducing his merit rating, assigning to him extra and
arduous duties beyond the scope of his employment , and discharging him because
he joined the Union and engaged in other protected concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
With respect to Respondent , Cabot Shops , Inc., the complaint alleged , by amend-
ment to paragraph 11 thereof , that "Shops , since on or about May 24, 1954, Sep-
tember 28 , 1954, and November 13, 1954, has continuously supported , assisted,
dominated , contributed support to , and interfered with the administration of the
Employee Committee of the Cabot Shops."
Without prejudice to subsequent rulings on motions to dismiss the complaint,
Cabot Carbon Company and Cabot Shops , Inc., filed separate answers admitting
all jurisdictional allegations in the complaint, pertaining to commerce , but denying
all allegations of unfair labor practices.
All parties were represented at the hearing by counsel , were afforded full op-
portunity to be heard , to examine and cross -examine witnesses , to introduce
relevant evidence , to argue orally upon the record , and to file written briefs and
proposed findings of fact and conclusions of law. Written briefs thereafter filed
by counsel for the General Counsel and the Respondents have been given due
consideration.
Rulings on Motions
On May 14 , 1956 , Respondent Cabot Shops, Inc., filed a motion to dismiss
the complaint for lack of jurisdiction on the alleged ground that it was not named
in any charge filed by the Union herein , although it is not denied that process
agents of said Respondent received copies of the charges actually filed. The
identical corporate name, "Cabot Shops, Inc." does not appear in any charge,
and first appears in the complaint as a corporate entity separate from other Re-
spondents. The third , fourth , and fifth amended charges herein were filed against
"Cabot Carbon Company , Southwestern Division , and Employer 's plants listed
in attached Appendix "A." Attached Appendix "A," inter alia , included a plant
designated as "Cabot Shops (Pampa Plant )," which in common parlance is well
known to be the operating plant of Cabot Shops, Inc., at or near Pampa, Texas.
The only other operating facility of this Respondent within the Southwestern
Division is located at Tulsa, Oklahoma , and familiarly kn: wn as the Franks
Plant. The name "Cabot Shops ( Pampa Plant )" was an apparent and purely
technical misnomer in the corporate name of Cabot Shops , Inc., and was un-
doubtedly sufficient designation to put that corporation on notice that charges had
been filed against it. Receipt by registered mail of the aforesaid charges by Reno
Stinson, director of industrial relations for Cabot Shops , Inc., and all other de-
partments of the Southwestern Division , under the circumstances here, constituted
notice and legal service upon the persons named therein . The motion of Cabot
Shops , Inc., to dismiss the complaint must, therefore , be denied .2
Motions filed by Respondent Cabot Carbon Company to dismiss the complaint
were denied prior to the hearing by Trial Examiner Arthur Leff , without prejudice
to the right of Respondent to renew said motions on the record made at the hearing
on grounds, as follows:
(1) The Charging Union in a representation case (No. 15-RC-1338) filed a
"Request to Proceed" with the Regional Director , notwithstanding the charges of
unfair labor practices filed in Case No. 15-CA-777, waiving any right or privilege
to urge as a basis for objections to any election , or to the results thereof, which
may hereafter be held in the said representation case, any interference or any
of the acts alleged as unfair labor practices in the said complaint case which may
have occurred prior to the issuance of a Decision and Direction of Election, or to
the execution of an agreement for consent election or a stipulation for certification
upon consent election , as the case may be, in the said representation case;
2 Columbus Marble Works, 233 F . 2d 406 (C. A. 5, 1. 956) ; Herald Publishing Company,
114 NLRB 71 (Intermediate Report footnote 1) : Peterson Construction Company, Inc.,
106 NLRB 850-851 ; Deluxe Motor Stages , 93 NLRB 1425, 1430.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) In the light of established Board policy not to process an election petition
during the pending of unfair labor practice charges which allege a violation of
Section 8 (a) (2), the action of the Regional Director in accepting a waiver was
tantamount to a dismissal of such charges.
Respondent Cabot Carbon Company contends that the Charging Union waived
its right to proceed with the pending charges because it filed petition for and
consented to an election held on December 1, 1955, and that the Board by holding
an election during the pendencyof charges alleging a violation of Section 8 (a)
(2) thereby determined in effect, that such charges were without merit. Such
contentions are a misconception of Board policy not to proceed with an election
of representatives under Section 9 (c) of the Act when charges of unfair labor
practices are pending, unless the petitioner shall waive its right to thereafter urge
such unfair labor practices as a basis of objections to the election or the results
thereof. Such waiver and Board policy with respect thereto are peculiar to repre-
sentation cases, and have no application to determination in the public interest of
unfair labor practices on the merits. It is also Board policy to suspend repre-
sentation proceedings pending determination of unresolved 8 (a) (2) charges
with respect to a labor organization seeking a place on the ballot, but such policy
has no application in the instant case where the Employee Committees made no
showing of interest, did not seek a place on the ballot, and, indeed, the Respondent
contends that these committees are not labor organizations for the purpose of
collective bargaining. Board policy is entirely discretionary, and there is no
sound reason for its application to 8 (a) (2) charges against alleged labor organi-
zations not seeking exclusive representation of employees for the purposes of
collective bargaining. The Board does not hear or determine the merits of unfair
labor practices in a representation case The waiver contained in the Charging
Union's "Request to Proceed" in Case No. 15-RC-1338 is clear on its face. That
case is now closed, and in my opinion the Board is free, under the circumstances
here, to hear and determine on the merits all unfair labor practices alleged in the
complaint issued on April 20, 1956, even though based upon charges filed both
before and after the representation election of December 1, 1955. The motions
of Respondent Cabot Carbon Company to dismiss the complaint are therefore
denied.3
Motion for sevr'-,ince was denied by Trial Examiner Arthur Leff prior to the
hearing, and upon renewal at the hearing was again denied by Trial Examiner
Best. For the convenience of parties and witnesses, however, the hearing was
conducted both at Franklin, Louisiana, and Pampa, Texas.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following'
FINDINGS OF FACT
I BUSINESS OF RESPONDENTS
Cabot Carbon Company and Cabot Shops, Inc., herein called Respondents, are
subsidiary corporations of Godfrey L. Cabot, Inc., a Massachusetts corporation
founded in 1887, having general headquarters, offices, and laboratories in the city
of Boston; where it engages in multistate and international business enterprises
related to the petroleum industry.
The Southwestern Division of Godfrey L. Cabot, Inc., consists of all Cabot op-
erations in the States of Kansas, Louisiana, New Mexico, Oklahoma, and Texas, with
headquarters, and general offices at Pampa, Texas, under the supervision of General
Manager Hugh Burdette. Departments of the Southwestern Division include the
(1) Pampa Office (purchasing, accounting, etc.); (2) industrial relations depart-
ment; 4 (3) carbon black department, and (4) Cabot Shops, Inc.
Respondent Cabot Carbon Company is a Massachusetts corporation and integrated
facility of the carbon black department, Southwestern Division, engaged primarily
in the manufacture and sale of carbon black. For the promotion of its business, it
also engages in'"research and development.' Facilities, installations, and plants op-
3 Columbia Pictures Corporation . 81 NLRB 1213, 1314-15 Locomotive Finished llfatcriat
Company, 52 NLRB 922 , 926 New Yorh Shipping 4ecoeiation , 107 NLRB. 364, 376.
Marine Optical Manufacturing Co . 92 NLRB 571, Michigan Bell Telephone Company.
63 NLRB 841 , 944, Standard Oil Co. of California , 63 NLRB 471, 475
4 Reno Stinson is director of industrial relations for the Southwestern Division in its
entirety
5 R. E. (Art ) Dobbin is director of research and development for the Southwestern
Division.
CABOT CARBON COMPANY 1639
erated by Respondent Cabot Carbon Company within the Southwestern Division
consist of the Pampa Office, Pampa Plant, Ordnance Plant, Pampa Warehouse, and
Mills R & D Plant, all in the vicinity of Pampa, Texas; Canal Plant at Franklin,
Louisiana; Dixon Plant at Big Springs, Texas; Kermit Plant, Estes Plant, and Walton
Plant at Kermit, Texas; Schafer A Plant, Schafer B Plant, and Schafer Laboratory
at Schafer, Texas; Keystone Plant at Wickett, Texas; and Ville Platte Plant at
Ville Platte, Louisiana.
Cabot Shops, Inc., is a Massachusetts corporation operating as a separate depart-
ment of the Southwestern Division, and is engaged in the manufacture, sale, service,
and repair of oil field pumping equipment, drilling rigs, steel fabrication, wholesale
steel, etc. Its operating facilities include shops in the vicinity of Pampa, Texas,
known as the Pampa Plant; and at Tulsa, Oklahoma, known as the Franks Plant.
During a representative period of 12 months immediately preceding the filing
of the complaint herein, the Respondents by and through facilities of the South-
western Division manufactured, sold, purchased, and caused to be transported be-
yond the boundaries of the States of origin, finished products, equipment, and other
merchandise valued in excess of $4,000,000. I find, therefore, and it is admitted
that Respondent Cabot Carbon Company and Respondent Cabot Shops, Inc , are
engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
II LABOR ORGANIZATIONS INVOLVED
International Chemical Workers Union, AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act. Since 1946 it has been recognized by
Respondent Cabot Carbon Company as the duly certified and exclusive representative
of its production employees in an appropriate unit at the Ville Platte Plant, Ville
Platte, Louisiana, and since December 1955 at its Canal Plant, Franklin, Louisiana.
Other labor organizations within the meaning of the Act, but not parties in this
case, have been certified by the Board, and are recognized by Respondent Cabot Car-
bon Company as the exclusive representatives for the purpose of collective bar-
gaining of production employees in appropriate units at its Pampa Plant, Schafer
A Plant, and Schafer B Plant. Another labor organization within the meaning of
the Act, not a party in this case, has been duly certified by the Board, and is rec-
ognized as exclusive bargaining representative of its employees by Respondent Cabot
Shops, Inc.
Whether Employee Committees named as interested parties herein are labor or-
ganizations within the meaning of Section 2 (5) of the Act is an important issue
to be determined, infra.
III. THE UNFAIR LABOR PRACTICES
Part I
A. The Southwestern Division
The Southwestern Division is a geographical administrative unit, without legal
entity, set up by the parent corporation, Godfrey L. Cabot, Inc , to conduct opera-
tions in the southwestern part of the United States Respondents Cabot Carbon
Company and Cabot Shops, Inc., are separate operating departments thereof. The
control and policy making group for the Southwestern Division consists of Hugh
Burdette (general manager), Reno Stinson (director of industrial relations), and
the several department managers. The parent corporation allots an annual budget
for overall operations within which this control group exercises final authority in
the determination of operating policies, wages, hours of work, working conditions,
overtime pay, vacations, pensions , fringe benefits, etc., for all employees Director
Reno Stinson is especially charged with the general supervision of employment prac-
tices and standards, personnel records, labor relations, and public relations. As
comptroller, he is responsible for wage and salary control. His duties include the
negotiation of union contracts, and conferences with both employees and supervisors
pertaining to the relationship between the employer and its employees, except for
safety. He is also responsible for the compilation, maintenance, revision, and dis-
tribution of a companywide policy manual familiarly called the "Cabot Guide,"
which is issued to all plant superintendents and higher officials. This publication is
made available to all supervisors and employees at each individual plant office for
the guidance of all concerned. In addition to the "Guide," each employee at time
of employment is presented with a handbook entitled "You And Your Job With
Cabot," which provides general information concerning company policies, benefit
plans, retirement and savings plans, group insurance , and other miscellaneous benefits,
etc. A pertinent section on page 8 of this handbook reads, as follows:
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEE COMMITTEE
At each plant, department, and in the Pampa Office, there is an Employee Com-
mittee. Employee Committees handle employee grievances at nonunion plants
and departments and make recommendations on suggestions from employees in
accordance with the Suggestion Plan. Committeemen are elected once a year,
by the employees, and they meet with plant management at regular monthly
meetings or any special meeting that might be called.
The duties of the Employee Committees and the rules under which they func-
tion were made by the committeemen and a representative of management.
Members of the committee are paid at straight-time rate for actual time of
meetings, but not in excess of four hours at one meeting.
B. The Employee Committees
1. Origin and formation
During World War II the War Production Board encouraged critical war industries,
including the Respondents, to set up joint "Labor Management Committees" for the
purpose of promoting the war effort to increase production Consequently, Cabot's
director of industrial relations (Reno Stinson) in 1943 notified all plant managers
in the Southwestern Division to send elected employee representatives to a con-
ference at Pampa, Texas. As moderator, Director Stinson drafted and submitted
to the employees in attendance a set of bylaws for the establishment, procedure and
control of employee committees in company plants, and installations. Under the
sponsorship of this conference, the bylaws were thereafter approved and adopted by
management and employees throughout the Southwestern Division. Director Stinson
thereafter included and published these bylaws in the Cabot Guide, where they reside
as company policy, with slight revisions, to the present day in section III of "The
Guide," as follows:
3-21-56
BYLAWS OF THE CABOT EMPLOYEE COMMITTEES
Purposes
1. To bring about a better understanding between employees in every branch
and service of our Company to the end that each will have a better insight of
the other's problems.
2. To provide a definite procedure for considering employees' ideas. As an
example, the following problems are of mutual interest to employees and
management:
a. Safety.
b. Increased efficiency in production.
c. Conservation of supplies, materials, and equipment.
d. Encouragement of ingenuity and initiative
e. Grievances (nonunion plants or departments).
Outline of Committees
Number of Employee Committee members to be elected from each plant
(there will also be an alternate elected for each member at the same time):
Cabot Shops (Pampa Plant) -------------------------------- r3
Canal ---------------------------------------------------- 3
Dixon --------------------------------------------------- 2
Estes ---------------------------------------------------- 2
Kermit--------------------------------------------------- 2
Mills R. & D.----------------------------------------------- 3
Pampa---------------------------------------------------- 2
Pampa Office---------------------------------------------- 2
Pampa Warehouse----------------------------------------- 1
Schafer A------------------------------------------------ 2
Schafer B------------------------------------------------- 2
Schafer Lab----------------------------------------------- 2
Ville Platte----------------------------------------------- 3
Walton--------------------------------------------------- 2
*One each from Machine Shop, Tin Shop, and Fabricating (That is, the employees
in Machine Shop, Tin Shop, and Fabricating will nominate their own representatives
However, all employees will vote on the nominees in all groups.)
CABOT CARBON COMPANY 1641
Employees in Special Crew and Gas Department will vote on Committeemen
at the plant or office nearest where they are working, and they will be repre-
sented by the Committee nearest their work. However, they will be allowed
to put in their Suggestions at any plant or office.
New Committees may be established or old ones changed upon agreement
between the department head and the employees affected.
Election Procedure
The,outgoing Committee members will conduct nominatidn and election of
succeeding Employee Committee members. The Committee members may
enlist the help of Plant Clerk and others in conducting the election.
In case no Employee Committee members or alternates are available, the
Plant Superintendent will appoint employees to conduct nominations and
elections.
The date of election of Employee Committee members is any time during the
first 15 days in January.
Elections should be by secret ballot unless the employees at the plant decide
otherwise
The Employee Committee members are to be elected for a term of one year.
Employees reserve the right, by a petition of one-third of plant employees
affected, to call a special election for the purpose of recalling any or all Employee
Committee members. However, a two-thirds majority vote is necessary to
recall. If any or all members are recalled, new members will be elected by
special election in the usual manner.
There will be no more nominees than twice the number of Committee mem-
bers to be elected. Nominees not elected will automatically become alternates
for Committee members. The nominee not elected receiving the highest vote
will become alternate No. 1; the nominee not elected receiving the next highest'
vote will become alternate No. 2; etc. Alternates will serve only in case of
absence or vacancy of regular Committee member or members.
Qualified voters and Committee members are as follows:
Carbon Black Plants. All employees below Working Foreman.
Gasoline Plants, All employees below Chief Engineer, and Working
Foreman
Shops: All employees below Foreman.
Pampa Office: All employees below Department Supervisor.
Exempt employees not in a supervisory capacity will be permitted to vote and
to serve as Committee members.
If a question arises as to who is or who is not qualified to vote or be elected
a Committee member, the Committee holding the election will interpret the
above rules.
Amendments
Change of or addition to these rules may be made by a majority vote of all
Employee Committee members, together with management's acceptance. Any
Employee Committee may institute change in rules by sending their proposed
change to the Industrial Relations Department, who in turn will send ballots
to all other Employee Committees, and, if a majority favor amendment, then
the Industrial Relations Department will secure either management's approval
or rejection.
Time Attending Meetings
Time attending meetings will be considered time worked, but no member
will be allowed more than four hours for any one meeting Special meetings
may be called by management or by the Committee at any time. Management
will have the right to call alternates when the Committeemen are not available.
Rights and Duties of Committees
It is understood that the Employee Committees do not in any way detract
from the authority and responsibility of the supervisory force but should serve
to assist plant management in general in solving problems of mutual interest.
It shall be the Committee's responsibility to
Meet with plant management at regular monthly meetings called by
management and to attend any special meetings called by management.
2. Work with management on those problems of mutual interest as set out
under "Purposes."
3. Make recommendations on the Suggestions from the employees in accord-
ance with the Suggestion Plan.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Call meetings of the employees if in their judgment this is necessary, and
the Committee may invite management to attend if they think advisable, but
all such meetings will be optional as far as management is concerned and will
be on the employees' time.
5. Handle grievances at nonunion plants and departments according to griev-
ance procedure set up for these plants and departments . It shall be the duty
of the Committee to call to the attention of management any trouble -makers
or acts of disturbance which would tend to lower morale , and it shall be the
duty of the Committee to insist that gripes, grumbling , trouble-making among
the employees either stop or be taken up under the regular grievance procedure
at the plant.
(2) Purposes and practices
Purposes announced in the aforesaid bylaws to bring about a better understanding
between employees and Respondents and provide a definite procedure for consider-
ing employees ' ideas are broad and general enough to encompass all problems of
mutual interest , and are not limited to the few examples named , such as safety, in-
creased efficiency , consideration of supplies and equipment , encouragement of inge-
nuity, and grievances at nonunion plants or departments . Although purportedly
established in cooperation with the War Production Board, the employee repre-
sentation system here at issue continued to exist and was expanded long after the
war effort was concluded by the cessation of hostilities in 1945. Since that time
an employee committee was established in 1952 at the Canal Plant, Franklin,
Louisiana , and possibly at other newly built plants.
The bylaws do not provide for any formal organization of employees as a con-
solidated group . There are no membership requirements , no dues, and no officers
other than members of the Employee Committee and alternates. Employee organi-
zation is limited to the election of committee members and alternates to serve on
Employee Committees at each of Respondent 's plants and installations . Exempt
employees not in a supervisory capacity are permitted to vote and to serve as com-
mittee members . Qualified voters and Committee members consist of (1) All
employees below working foreman at Carbon Black Plants; ( 2) all employees below
chief engineer and working foreman at Gasoline Plants; ( 3) all employees below
foreman at Shops; and (4) all employees below department supervisor at the
Pampa Office. The Committee holding an election is authorized to interpret the
rules as to who is qualified or not qualified to vote or to be elected a committee
member.
(3) Functions of the Committee
The bylaws provide that the Employee Committees do not in any way detract
from the authority of management but should assist plant management in general
to solve problems of mutual interest at regular monthly and special meetings called
by management by (1) working with management on. those problems of mutual
interest as set out under "Purposes"; ( 2) making recommendations on the suggestions
from employees in accordance with the suggestion plan 6 set forth in the Cabot
Guide; and (3 ) handling grievances at nonunion plants and departments according
to established grievance procedure , reporting troublemakers and acts of disturbance,
and insisting that gripes, grumbling, and troublemaking either stop or be taken
up under the regular grievance procedure.
Grievance procedure published by Respondent in "The Guide" provides, inter
alia, that the employee may handle his grievance personally or ask the Employee
Committee to handle it for him; and that it shall be the Committee 's duty to con-
sult with the foreman, the assistant plant superintendent and the plant superintendent,
and consider all the evidence , weigh the facts, and set out in writing their reason for
believing the employee or employees have not been given justice, before filing a
formal grievance with plant management.
Respondents ' "Seniority Policy for Regular Employees at Non -Union Plants and
Departments ," as currently published ( for employees who come under the Employee
Committee plan) in the Cabot Guide, provides that seniority lists compiled bi-
annually will be furnished to the Employee Committee. In any case where the
plant or department manager decides to deviate from seniority , they shall have a
meeting of the Employee Committee and discuss it with the Committee , giving the
reason for the deviation before the action is taken. Hiring new men in any classi-
fication other than the starting classifications will be a deviation from seniority and
°The Cabot suggestion plan included , inter alga, awards to employees for "Ideas for
eliminating a safety hazard or imps ozing worksng conditions " [ Emphasis added j
CABOT CARBON COMPANY 1643
will be hanaled accordingly. Transferring employees from another department or
plant, regardless of their seniority, will be considered a deviation from seniority
unless they are placed in one of the starting classifications. Management will discuss
such transfers with the Employee Committee, giving the reason, before the action
is taken. When the Employee Committee believes an employee has been disciplined
unduly or laid off not in good standing or discharged without just cause, a meeting
between the Committee and management shall be conducted promptly. At this
meeting management will explain to the Committee the reasons for their action.
If the Employee Committee is not satisfied with the explanation of the reason for
deviation from seniority or after such meeting still believes that any employee or
employees are being treated unfairly, unduly disciplined, laid off not in good stand-
ing, or discharged without just cause, they may file a grievance under the regular
grievance procedure.
From uncontradicted testimony and the recorded minutes of Employee Committee
meetings with management representatives of Respondent Cabot Carbon Company,
it appears that the following subjects pertaining to labor relations and working con-
ditions were discussed and otherwise dealt with, as follows-
Canal Plant:
Oct 11, 13, 1954____ Deviation from seniority in the appointment of a boiler
foreman.
Oct 11, 13, 1954____ Preference of Canal Employees for plant seniority.
Oct. 13, 1954_______ Job bidding.
Nov. 29, 1954______ Complaint about maintenance foreman.
Jan. 19, 1954_______ Air vents for warehouses.
Feb. 16, 1955_______ Request that gloves for employees be furnished at cost
through supply room.
Apr. 13, 1955______ Complaint about merit system.
June 1, 1955_______ Job bidding under plant seniority
July 27, 1955_______ Additional classifications of employees.
Sept 13, 1955______ Sick leave plans.
Oct. 13, 1955_______ Sick leave plans.
Oct. 13,
Dixon Plant:
1955_______ Transportation for overtime workers.
June 1956__________ Tow motor classification
Reel light above trouble spots.
Kermit Plant
1956_______________ Complaint of an employee concerning his merit rating.
Mills R & D Plant
Apr 8, 1955________ Longer notice for job bidding.
May 10, 1955_______ Abandonment of time cards. Working early on week-
ends.
Work on Labor Day.
May 12, 1955_______ Work on Memorial Day.
Aug. 5, 1955_______ Availability of overtime records.
Sept. 28, 1955______ Return of working foreman to rank and file.
Sept. 29, 1955______ Discussion of wage correction.
Dec 2, 1955________ Holiday work schedule.
Privilege of reporting early to work.
Jan. 6, 1956________ Job bidding for classification of apprentice engineer.
Mar. 2, 1956_______ Allocation of overtime to employees.
Apr. 6, 1956________ Curing time at rubber lab. on Saturdays.
May 10, 1956_______ Work on Memorial Day.
Estes Plant:
Mar. 15-16, 1956___ Christmas vacations. Distribution of company houses.
Makeup time. Job classifications
Septic tank improvements.
Schafer Laboratory
1955-1956 ---------- Overtime pay and job bidding.
Walton Plant:
Jan. 12, 1956_______ Days off for tour men.
Jan. 14, 1956_______ Interpretation of company policy pertaining to seniority,
promotions, transfers, etc.
Employee Committees established at Pampa Plant, Schafer A Plant, Schafer B
Plant, Ville Platte Plant, and Canal Plant of Respondent Cabot Carbon Company have
coexisted with duly certified outside unions, but their functions during such co-
existence have been limited to the handling of grievances for employees outside the
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit and matters divorced from collective bargaining. In the event of
conflict, the Employee Committees have customarily yielded to the exclusively cer-
tified bargaining representative. At the Ville Platte Plant on March 3, 1955, the
Employee Committee in a meeting with management representatives discussed the
improvement of urinals on the docks and the installation of water coolers in ware-
houses for the convenience of employees. By reason of conflict with the International
Chemical Workers Union, AFL-CIO, no members of the Employee Committees at
the Ville Platte Plant and Canal Plant were elected in 1956. At some of the unionized
plants members of the Employee Committees are also members of the bargaining
unit and the certified union At Schafer B Plant the certified bargaining union and
the elected Employee Committee hold joint meetings with the representatives of
management The aforesaid situation of coexistence also prevails at the plant of
Respondent Cabot Shops, Inc. During the month of March each year the Respond-
ents hold a management conference at the Pampa Office of the Southwestern Divi-
sion in Pampa, Texas. The chairman of all Employee Committees from the various
plants of Cabot Carbon Company and Cabot Shops, Inc., herein called the Central
Committee, attend the divisionwide conference at company expense. In the course
of deliberations, Director Reno Stinson holds a separate meeting with the Central
Committee to hear and discuss matters of mutual interest, employee suggestions,
recommendations, and complaints. At the meeting in March 1955, for example, the
Central Committee in conference with Director Stinson discussed proposals concern-
ing (1) increased vacation benefits; (2) furnishing working gloves to employees at
cost; (3) sick leave benefits; (4) allocation of company houses; and (4) job classifica-
tions at the Estes and Dixon Plants
It is apparent from all testimony, and the entire record in the case, that the afore-
said dealings of management with Employee Committees at the plant level and with
the Central Committee at top level avoid the usual concept of collective bargaining,
but provide a forum for discussion of mutual problems, exchange of information,
presentation and consideration of employee suggestions and recommendations, in-
cluding the adjustment of grievances and the improvement of working conditions.
C. Domination and assistance
Domination and assistance by the Employer are inherent in the current "Bylaws of
the Cabot Employee Committees " Their original adoption was subject to approval
by management in the beginning before becoming effective. In the absence of Em-
ployee Committee members or alternates, the plant superintendent is authorized to
appoint employees to conduct nominations and elections The acceptance of man-
agement is required to make any change, additions, or amendment to the bylaws.
Proposed changes must be submitted to the Employer's industrial relations depart-
ment, who in turn will send out the ballots, and, if a majority favor amendment,
will secure either management's approval or rejection. It is a primary requirement
and duty that the Employee Committee meet with plant management at regular
monthly meetings called by management and to attend any special meetings called
by management. All such meetings have been called on company time and premises.
New committees may be established or old ones changed upon agreement between
the department head and the employees affected. [Emphasis supplied.]
When the newly built Canal Plant at Franklin, Louisiana, went into production in
the early part of 1952, supervisors of Respondent Cabot Carbon Company un-
doubtedly promoted the establishment of a new Employee Committee at that plant.
The handbook (You And Your Job With Cabot) presented to all newly hired
employees announced the existence and purposes of Employee Committees at all
plants, departments, and the Pampa Office. It also announced that the duties of
the Employee Committees and the rules under which they function were made by the
committeemen and a representative of management; and that members of the com-
mittee are paid at straight-time rate for actual time of meetings, but not in excess
of 4 hours at 1 meeting. Various foremen explained to the employees under their
respective jurisdictions that an election would be held, and a written notice of such
an election appeared on the plant bulletin board. Ballots were mimeographed in
the plant office, and delivered to foremen for distribution to employees. An in-
dividual ballot was given to each employee with instructions to note thereon his
choice for members of the Employee Committee and drop it in a ballot box pro-
vided at the time clock within a prescribed time limit At the appointed time the
ballot box was carried to the plant office, and the votes were counted in the presence
of plant. supervisors. Results of the balloting were then posted on the bulletin
board, thereby creating a 'new Employee Committee. From the record as a whole,
it is apparent that the elections of Employee Committees at the Canal Plant and
other plants of Respondents in subsequent years, 1953, 1954, and 1955, followed
CABOT CARBON COMPANY 1645
the same general pattern of procedure with minor variations in particular situa-
tions, all in accordance with the rules and policies set forth in the bylaws contained
in the manual of basic company policy,(Cabot Guide) furnished to all plants and
departments in the Southwestern Division.
D. Contentions of Respondents
It is contended by Respondents that the Employee Committees involved herein are
not labor organizations within the meaning of Section 2 (5) of the Act. It is ad-
mitted that one of the purposes and functions of the committees is the handling of
grievances at nonunion plants under the prescribed grievance procedure; and that
the committee members and management representatives at times discussed matters
beyond the right or authority to "deal with" each other. It is pointed out that
Respondents have never recognized the committees as the bargaining agents of their
employees; and that Section 8 (a) (2) of the Act contains-a proviso -to the effect "that
subject to rules and regulations made and published by the Board pursuant to section
6, an employer shall not be prohibited from permitting employees to confer with
him during working hours without loss of time or pay;" [Emphasis supplied.] 7 Re-
spondents also cite a provision in Section 9 (a) of the Act to the effect that "That any
individual employee or a group of employees shall have the right at any time to
present grievances to their employer and to have such grievances adjusted without
the intervention of the bargaining representatve, as long as the adjustment is not
inconsistent with the terms of a collective-bargaining contract or agreement then
in effect." Counsel for Respondents, therefore, advanced the proposition, res nova,
that the Employee Committees in this case are not prohibited "labor organizations,"
whether or not the Employer may have established and encouraged them. It is con-
tended that clerical assistance rendered by plant clerks and other office personnel to
the various Employee Committees is de minimis; and that payment of wages to
committee members for "time lost" at meetings with management representatives on
plant premises is authorized by the proviso contained in Section 8 (a) (2) of the Act
With respect to the so-called Central Committee, it is contended that the chairman
of the various "plant committees" as invited guests without loss of wages and with
expenses paid, merely attend the annual convention of management at the South-
western Division Headquarters in Pampa, Texas, with no expressed purpose of repre-
senting anyone, except to bring information from the bottom up and give information
from the top down. They first attend a prepared program in which top management
reviews company accomplishments for the past year and forecasts future operations.
Thereafter, the employee guests in session with the director of industrial relations
are afforded an opportunity to discuss their own problems and obtain an interpreta-
tion of company policy with respect thereto with no intention of engaging in
collective bargaining.
Concluding Findings as to Violations of Section 8 (a) (2)
The Committees named as interested parties in the complaint constitute an
integrated employee representation system established as company policy through-
out the Southwestern Division of Godfrey L Cabot, Inc. The named Respondents,
Cabot Carbon Company and Cabot Shops, Inc., are departments of the parent
corporation in whose office, plants, and other installations such Committees pres-
ently exist or have recently become more or less dormant The complaint is an
attack upon this employee representation system as a whole rather than the
individual committees as such. Each Committee owes its existence to Bylaws of
the Cabot Employee Committees originally submitted in 1943 by Reno Stinson,
director of industrial relations for the Respondents, and thereafter approved and
accepted by both management and employees. Since the original adoption of 'this
so-called employee representation plan, there is no evidence that employees at
subsequently established plants and installations have been afforded an opportunity
to ratify or reject that plan of representation, although at some plants elections
have been held under Section 9 of the National Labor Relations Act which resulted
in the certification of other labor organizations as exclusive bargaining representa-
tive in the appropriate unit without any showing of interest by the existing Employee
Committee at the particular plant concerned For example, this occurred at the
Ville Platte Plant in 1946 and at the Canal Plant in 1955. At the Pampa Plant,
Schafer A Plant, and Schafer B Plant of Cabot Carbon Company, and at Cabot
a The Board has not made or published any specific rules or regulations thereon except
in published decisions in particular cases.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shops, Inc (Pampa Plant), Employee Committees coexist with the certified,
exclusive bargaining union without substantial conflict of interests.
Section 8 (a) of the Act provides that it shall be an unfair labor practice for an
Employer-
(2) to dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it: Provided, That
subject to rules and regulations made and published by the Board pursuant to
section 6, an employer shall not be prohibited from permitting employees to
confer with him during working hours without loss of time or pay;
The Act further provides.
SEC. 2. When used in this Act-(5) The term "labor organization" means any
organization of any kind, or any agency or employee representation committee
or plan, in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of work
The record in this case conclusively shows that the Employee Committees herein
were created, elected, and functioned by reason of formal bylaws jointly approved
and adopted by the Respondents and their employees for the purpose of meeting
regularly with each other on company premises to discuss and deal with problems
of mutual interest including but not limited to (1) safety; (2) increased efficiency
in production; (3) conservation of supplies, materials, and equipment; (4) encour-
agement of ingenuity and initiative; and (5) grievances. At meetings with man-
agement representatives within the statutory limitation period of 6 months immedi-
ately preceding the filing and service of charges herein, these Committees discussed,
complained about, made requests and recommendations, or otherwise dealt with
their respective employers with respect to seniority and transfers of employees, job
classifications, job bidding, improvement of working facilities, overtime records and
timecards, the merit system, layoff and makeup time, working schedules, vacation
and sick leave, holidays, allocation of company houses, and other matters affecting
the.r employment Similar matters were discussed with Reno Stinson, director of
industrial relations, by members of the Central Committee while attending the
annual management conference or convention in 1955 and 1956.
In view of the foregoing purposes and activities, and in accord with previous
Board and court decisions,° I am constrained to hold that all Employee Committees
created and existing by virtue of the bylaws of the Cabot Employee Committees
and the so-called Central Committee annually convened incident thereto are labor
organizations within the broad meaning of Section 2 (5) of the Act.
The Cabot Employee Committees are a practical facsimile of the Shop Com-
mittee recently proscribed by the Board in the case of Coppus Engineering Corpo-
ration, 115 NLRB 1387 (1956). According to Respondents these committees were
snonsored as a war measure in collaboration with the War Production Board in
1943 If that be the object of their establishment, there is no good or sufficient
reason for their continued existence beyond the accomplishment of the war effort.
In any event, findings of unfair labor practices here must be and will be based upon
the present status plus conduct and activities occurring within the period beginning
6 months immediately prior to the filing and service of charges against the
Respondents These Committees presently owe their existence solely to a set of
rules or bylaws firmly entrenched in the personnel program of the Respondents and
published as company rules and policies. Publication of the bylaws in the Cabot
Guide and the statement entitled "Employee Committee" on page 8 of the booklet,
"You And Your Job With Cabot," is tantamount to an announcement that the
Employee Committees are sponsored by the Respondents as an employee represen-
tation plan with limited recognition by the Employer. Such recognition has been
extended without requiring proof of the majority status customarily required of an
outside labor union, and in the absence of any provision for membership, the
employees have no way of choosing whether to continue their representation by
this type of organization. Their only choice is to vote for employee representatives
to serve on the Employee Committee, and the right by a petition of one-third of
plant employees affected to call a special election for the purpose of recalling any or
8N L R B v Standard Coil Pioducts Co, Inc. 224 F 2d 465 (C A 1, 1955)
N L R B. v Sharples Chemicals , Inc, 209 F 2d 045 (C A 6, 1954) , Indiana Metal
Products Corp v N. L R. B., 202 F 2d 613 (C A 7, 1953) ; N. L R B v. Saxe-
Glassman Shoe Corp , 201 F. 2d 238 (C. A. 1, 1953) ; N L. R B v General Shoe Crop..
192 F 2d 504 (C A 6, 1951)
CABOT CARBON COMPANY 1647
all Employee Committee members by a two-thirds majority vote. In the event any
or all members are recalled, it is required that new members be elected by special
election in the usual manner. The bylaws provide that new committees may be
established or old ones changed upon agreement between the department head and
the employees affected. It is provided that the outgoing committee will conduct the
nomination and election of succeeding Employee Committee members with the
help of the plant clerk and others, and when no Employee Committee members or
alternates are available, the plant superintendent will appoint employees to perform
that function. This provision undoubtedly gives management considerable control
of the election machinery, and Respondents also have the inherent power to unseat
any elected committee member by terminating his employment.
The dominant position of the Respondents over its Employee Committees and
the latter's subservient relationship is also revealed in meetings with management.
All meetings have been held on company time and premises with committee mem-
bers receiving their regular wages for the time while so engaged. This policy
applies also to the annual meetings of the Central Committee with Respondents' di-
rector of industrial relations in Pampa, Texas The Committees have never at-
tempted to negotiate a contract with Respondents, and all benefits, privileges, or con-
cessions to employees resulting from such conferences depend entirely upon company
policy or magnanimity Thereby all aspects of collective bargaining are either frus-
trated or entirely absent. General meetings of the employees to formulate their
demands in common or for other purposes depend upon the whim and willingness
of the committee members to call such meetings. Few have been held and were
at all times on company premises information is disseminated to the employees
as a group by posting notices and the minutes of meetings on bulletin boards of
the Respondents, agreement having been reached in advance between management
representatives and members of the Committees as to the propriety and correctness
thereof The Employee Committees have no source of funds and rely upon
clerical a,sistance and other facilities furnished by Respondents, when necessary for
their activities and functions. In the foregoing circumstances it can hardly be
said that the employee representation plan at issue has an existence independent of
the Respondents
From a preponderance of the evidence and the entire record in the case, I find
that within the statutory period defined in Section 10 (b), the Respondents Cabot
Carbon Company and Cabot Shops, Inc., have within the meaning of Section
8 (a) (2) assisted, supported, dominated, and interfered with the administration
of the Employee Committees, including the so-called Central Committee, named
in the complaint, thereby interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed in Section 8 (a) (1) of the Act9
Part II
E. Operations at Canal Plant
On or about February 1, 1952, the Respondent Cabot Carbon Company com-
menced operations at a newly constructed carbon black plant near Franklin, Louisi-
ana, known as the Canal Plant. This plant consists of a modern office building,
warehouses, boilerhouses, three outdoor units of steel construction designed for the
production of carbon black from the combustion of natural gas and oil, together
with other auxiliary facilities. We are primarily concerned herein with operations
at and around the gas unit. Supervisory personnel involved include District
Superintendent D. C. Paulsen, Plant Superintendent Henry S. Ayres, Assistant
Plant Superintendent Richard Bray, Plant Engineer A. E. (Tully) Marlow, Shift
Foreman Leroy Thompson, and Shift Foreman Charles G Allmon
Concurrently with production operations an Employee Committee was elected
in accordance with the employee representation plan established throughout the
Southwestern Division under the bylaws of the Cabot Employee Committees.
F. Employment activities of Edwin W. Wilgus
Many of the workers previously employed in the construction program at the Canal
Plant were thereafter hired by Respondent Cabot Carbon Company in its pro-
duction operations, including Edwin W. Wilgus. Wilgus worked for several months
as a dustless operator, and was then assigned to duty as gas unit operator. In
ON L R B v James H Matthews J Co, 13(; F 2d 706-708 (C -A 3) , Northeastern
Engineerinq, Inc, 112 NLRB 743, 749-750 Coppv8 Engineering Corporation, 11z
NLRB 1387
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition to qualifications for this latter job classification, the job description pub-
lished by Respondent on April 21 , 1954 , defines the functions and duties of a gas
unit operator , as follows • to
FUNCTION:
Works rotating shifts under the direct supervision of the Shift Foreman.
Performs all the duties connected with the operation of the gas units from
furnaces to the process building in a safe, acceptable , workmanlike manner.
DUTIES:
The duties of this job include but are not limited to the following:
1. Operates blowers, furnaces , coolers, precipitators , cyclones, bag filters, and
conveyors.
2. Observes and operates all equipment in the service building including
water pumps , strainers , instruments , rectifiers, etc.
3. Cleans and makes minor repairs and adjustments to the above equipment.
4. Checks extract of blacks periodically and regulates furnace conditions
to maintain desired black quality or furnace temperature.
5. Regulates cooling water to maintain proper temperature in cooler, pre-
cipitator , and bag filter.
6 Cleans burners and water sprays regularly.
7. Shuts down and starts up units when necessary.
8. Flushes oil seals, drains water from oil tanks, and controls inert gas
temperature in insulating compartments.
9. Reprocesses off-quality black.
10. Cleans up and maintains all the assigned equipment and areas [Emphasis
supplied.]
11. Takes up all questions , problems, grievances , etc., concerning his job,
the plant , or the Company with his immediate supervisor in accordance with
established Company policies and procedures.
12. 'Observes and practices plant rules and safety regulations , particularly
those applicable to the area in which the work is performed.
13. Assists or relieves any other operator or performs other necessary work.
[Emphasis supplied.]
In January 1953 Edwin W. Wilgus was elected as an alternate and repeatedly
thereafter in 1954 and 1955 was elected as chairman of the Employee Committee
In the latter capacity he actively participated in regular monthly and special meet-
ings with plant management representatives , and also attended annual meetings of
the Central Committee at headquarters of the Southwestern Division in Pampa, Texas
In October 1954 Wilgus interviewed a representative of the International Chemi-
cal Workers Union , and induced that organization to file a petition with the
National Labor Relations Board for exclusive representation of production em-
ployees at the Canal Plant . Thereupon , he actively solicited membership in the
Union , and obtained the signatures of 109 employees on cards designating the
Union as their representative . At an election held on November 4, 1954, in Case
No. 15-RC-1183 , Wilgus acted as observer for the Union , but the election was
lost by a margin of three ballots.ri Shortly thereafter he complained to Shift
Foreman Leroy Thompson that his merit rating had not been increased during
the past 2 years , thereby depriving him of advancement to a higher wage bracket.
Thereupon , Foreman Thompson told Wilgus that he might improve his merit
rating by doing a better job of cleaning up his instrument panel in the service
building. Wilgus thereupon accused Foreman Thompson of sleeping on his job-
asserted that he could produce witnesses that had seen him asleep on the job-
that if he would stay awake long enough , he could see him cleaning up the in-
strument panel At the behest of Wilgus , the Union on November 24, 1954,
filed the original charge herein against Cabot Carbon Company , Canal Plant, alleg-
ing unspecified conduct since October 1 , 1954 , constituting interference, restraint,
and coercion of its employees in the exercise of their rights to self -organization,
etc On or about March 1, 1955 , Wilgus complained also to Plant Engineer Marlow
that his merit rating points had not been increased during the past 18 months, and
demanded that something be done about it
10 To eliminate the fire hazard existing in an open area adjacent to the gas unit,
Respondent also periodic-illy required its employees , including gas unit operators, to cut
grass with a manually operated power mower
li At a subsequent election in Case No 15-RC-1338 on December 1, 1955, the Union
received a plurality of ballots east was thereafter ceititled by the Board, and in April
1956 negotiated and signed a collective -bargaining agreement with Respondent.
CABOT CARBON COMPANY 1649
At a regular monthly meeting of the Employee Committee with management
representatives on April 13, 1955, Chairman Wilgus raised a discussion of the
merit rating plan in effect at the Canal Plant. He expressed his opinion that it was
a good thing, but was being used as a whip in the hands of the foremen. He
reiterated his previous colloquy with Foreman Thompson, and renewed accusations
of his sleeping on the job. Minutes of this meeting were thereafter posted on bulletin
boards at the plant, as usual, and the remarks therein concerning Foreman Thompson
aroused considerable resentment against Wilgus by several other foremen in the
plant. Some passed him on the premises without speaking or other salutation.
At the end of the current monthly merit rating period about May 1, 1955, Wilgus
was called to the office of Plant Engineer Marlow, and notified in the presence of
Assistant Plant Superintendent Richard Bray and Foreman Thompson that his
merit rating had been reduced from 30 to 26 points, thereby placing him on pro-
bation for a period of 90 days within which to regain his former rating or suffer a
reduction in pay provided for in the next lower wage bracket. The new rating
sheet was signed by Foreman Thompson , and approved by Plant Engineer Marlow
with remarks thereon, as follows:
Ed Wilgus appears to resent orders and instructions from his supervisors,
and is often critical of changes in operating procedures, new methods, and
work other than regular operations. His foreman often hesitates to give
him orders and instructions because of his attitude. He is capable of doing
good work if his attitude can be improved. I recommend placing him under
the supervision of a different foreman to see if this can be accomplished.i3
On May 9, 1955, Chairman Wilgus called a special meeting of the Employee
Committee with management for further discussions about the merit rating plan
and other matters. At that meeting Wilgus contended that management was at-
tempting to restrict his freedom of speech, and retaliating against him because of
his activities on behalf of the Union and the Employee Committee. He asserted that
pending charges before the National Labor Relations Board would be amended
to include the discrimination against him.13 Wilgus also contended that employees
were being required to report for work 15 minutes before starting time for which
they should be paid overtime, and asserted that he had filed a complaint with the
Wage and Hour Division of the Department of Labor requesting an investigation
thereof. Plant Superintendent Ayres tried to explain the company viewpoint,
and suggested that Wilgus file a formal grievance under procedure outlined in the
employee handbook and the Cabot Guide. Committeeman F. I. Petitfils did not
agree with the position taken by Chairman Wilgus that employees should be paid
overtime for reporting a few minutes before starting time to confer with outgoing
operators prior to change in shift personnel. Petitfils requested that a second special
meeting be held on May 12, 1955, and in the meantime interviewed other employees
about the situation. At the second meeting he reported that approximately 15
employees interviewed by him expressed the opinion that they had been misrepre-
sented by Wilgus and would like for him to withdraw his complaint to the Wage
and Hour Division. Wilgus, however, maintained the position he had taken, and
insisted that he was representing other employees who were dissatisfied.
G. The probation period
On and after May 9-10, 1955, Edwin W. Wilgus continued to work as a gas
unit operator under the supervision of Shift Foreman Charles G. Allmon. The
new foreman explained to him that his past record indicated poor cooperation with
his supervisors, that the quality of his work had not been up to standard, but that he
would try to help him become a good employee. Thereupon, Wilgus denounced
his former foreman (Leroy Thompson), contended that he had performed his
work better than any other operator and insisted that management was out to get
him because of his activities on behalf of the Employee Committee and the Union.
Foreman Allmon assured Wilgus that management was not setting any trap to fire
him, that both he and management had some changes to make , and that manage-
ment would meet him more than half way. He told Wilgus that he did not want
a troublemaker on his shift, and cautioned him to be more tactful and go through
channels in his dealings with management, pointing out that complaints had been
made to the National Labor Relations Board without affording the Company an
12Pursuant to this recommendation, Assistant Plant Superintendent Richard Bray
instructed Wilgus to report foi duty to Shift Foreman Charles G. Allmon on May 9, 1955.
13 Thereafter the Union filed an amended charge to that effect on May 13, 1955.
423784-57-vol. 117-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to remedy the situation through the customary grievance procedure.
Finally the foreman told Wilgus that it had been reported that he had not been doing
his share of the cleanup duties and proposed that more work of that nature would
be assigned to him. Agreement was reached by Wilgus saying to the foreman:
"Charlie, I'll do anything you tell me to do, because I am too smart to get fired for
insubordination."
Thereafter, on one occasion, Wilgus was required to cut grass with the power
mower for an hour or two in the open area adjacent to the gas unit. At another
time he was required to clean off and wash down the upper landings on the gas unit
with a high pressure hose. On another occasion he was required to replace defective
light bulbs and polish all light reflectors on the gas unit. At other times he was
required to systematically check all sprays on the downcomer and precooler. In
the performance of such work it was necessary to climb a ladder to positions 60 to
65 feet above the ground. While so engaged, the foreman relieved him of his re-
sponsibilities on the ground floor and in the service building.
At the end of the first month of his assignment to the shift of Foreman Charles G.
Allmon, the foreman commended Wilgus for his work, but cautioned him to be more
courteous and polite when he came in contact with his former foreman, Leroy
Thompson, and other supervisors. Thereafter, according to Foreman Allmon, the
conduct of Wilgus demonstrated a noticeable improvement in his attitude, and on one
occasion Assistant Plant Superintendent Richard Bray remarked that "Ed's attitude
is sure improving." The result was that on August 1, 1955, Foreman Allmon in-
creased the merit rating of Edwin W. Wilgus to 31 points, which removed his pro-
bationary status, and restored him to his original bonus wage bracket with a rating I
point higher than any previously held by him. At that time Foreman Allmon made
the following notation on his merit rating sheet:
This man's attitude is apparently "Good" at this time; and, in my opinion, has
been good for the last 60 days. However, due to the fact that I was not satis-
fied with his attitude during the first 30 days, this weights the grading in this
category by 33' percent; which in turn, produces a composite rating for the
full 3-month period of "Satisfactory."
H. The alleged discriminatory discharge
In the absence of evidence to the contrary it is presumed that Wilgus remained
,on good terms with his foreman and satisfactorily performed the duties of his em-
ployment for a period of 1% months following the end of probation on August 1,
1955, to September 15, 1955. At daybreak on the latter date Foreman Allmon
again instructed Wilgus to cut grass around the furnaces of the gas unit and service
building. Wilgus at that time raised no objections. At approximately 5 a. m.' he
procured the power mower from Boiler Fireman George Dugas at the boilerhouse,
and made a statement to him to the effect that for 5 years he had not cut grass at
his own house, and that he was going to find out from Charlie whether this extra
duty was his idea or that of management. In the meantime Foreman Allmon was
himself cutting grass in a larger area nearby with a tractor-drawn mower. After
cutting for approximately 1 hour, Wilgus complained to Foreman Allmon that his
workload had been increased. Wilgus testified: "I told Charlie Allmon that I thought
my work load was being increased and I intended to find out whether it was his
idea or top management's idea." Foreman Allmon insisted that cutting grass was
a routine duty of the gas unit operator, and required Wilgus to continue the work
until the end of his shift at 7 a. m. Then he called Plant Superintendent Ayres at his
home and requested that he come to the plant. Immediately prior to 7 a. in. Allmon
instructed Wilgus to stop cutting grass and report to the plant office. At the office
both Foreman Allmon and Edwin W. Wilgus expressed to Plant Superintendent
Henry S. Ayres his version of the grass-cutting incident. Wilgus contended that the
grass cutting was extra work that he should not be required to perform. The Plant
Superintendent produced the job description, supra, pointing out that one of the
prescribed duties of a gas unit operator was to clean up and maintain all the assigned
-equipment and areas. The conference continued for 30 or 40 minutes without
reaching an agreement. Wilgus was then dismissed, and went home. Upon his
departure, Plant Superintendent Ayres called in District Superintendent D. C
Paulsen for further discussion of the situation. Foreman Allmon expressed his
unwillingness to continue working with Wilgus. Paulsen consulted the company
attorney and the director of industrial relations. Finally the decision was reached
to discharge Edwin W. Wilgus. At approximately 11:30 a. in. on September 15,
1955, Foreman Charles G. Allmon notified Wilgus by telephone at his home that he
was discharged for insubordination and failure to cooperate with his supervisors.
CABOT CARBON COMPANY 1651
Concluding Findings as to Violations of Section 8 (a) (3)
Notwithstanding my findings in part I, above, that Respondent Cabot Carbon
Company illegally assisted, supported, and dominated the Employee Committees,
the record does not support a finding that it otherwise sought to circumvent or sup-
press the organizational activities of its employees. At several plants it had rec-
ognized, bargained with, and entered into collective-bargaining agreements with out-
side unions coexisting with the Employee Committees. For many years prior to 1954,
Employee Committees coexisted with outside unions recognized as the exclusive bar-
gaining representative at the Pampa Plant, Schafer A Plant, Schafer B Plant, and
Ville Platte Plant. Following a consent election lost by the International Chemical
Workers Union at the Canal Plant in November 1954, the Respondent was charged
with unspecified acts of interference, restraint, and coercion. Thereupon, Edwin W.
Wilgus, chairman of the Employee Committee, and an ardent advocate of the
Union, protested his failure to receive promotion and made an unsubstantiated charge
against his foreman (Thompson) of neglecting his duties and sleeping on the job.
His controversy with this foreman resulted in a reduction of Wilgus' merit rating,
placing him on probation, and his transfer to the shift of Foreman Charles G. Allmon.
During this probation period Wilgus became reconciled to the disciplinary action
taken against him by the Employer. Whether or not disciplinary action taken by
Respondent was justified, the record is clear that on or about August 1, 1955, the
merit rating of Edwin W. Wilgus was without loss of pay fully restored, and he was
again in good standing with his Employer.
Approximately l1 months later on September 15, 1955, Foreman Allmon again
required Wilgus to cut grass in the recognized area of the gas unit. The published
job description of his classification clearly prescribed among other duties that a
gas unit operator "cleans up and maintains all the assigned equipment and areas."
Some employees of the same and similar classification had in the past been required
to cut grass either on a voluntary basis or otherwise. It is well settled also that
an employer may reasonably prescribe the duties required of an employee without
any presumption of discrimination. I am, therefore, constrained to find that under
the circumstances here, it was not discrimination in regard to the hire and tenure
of employment of Edwin W. Wilgus to discourage membership in a labor organiza-
tion for Respondent to assign to him the duty of cutting grass in areas immediately
adjacent to his unit. His challenge to the authority of the foreman to assign such
work, accompanied by a continued refusal in conference with the plant superintendent
to accept such assignments, constituted insubordination for which the Respondent
had the right to terminate his employment. I shall, therefore, recommend` with
respect to the alleged discrimination against Edwin W. Wilgus that the complaint be
dismissed.14
1. Separate allegations of interference, restraint, and coercion
It is alleged in the complaint that Respondents by and through their agents and
supervisors interrogated employees concerning their sympathies, activities, and
membership in the Union, threatened them with a reduction in earnings if the Union
be selected as bargaining representative, and required them to perform more arduous
work because of the advent of the Union. In support, of those allegations the General
Counsel introduced the following testimony.
Forrest Boudreaux (employee at the Canal Plant) credibly testified in substance
that shortly prior to the Board-conducted representation election on November 4,
1954, Shift Foreman Carroll Hughes came to him and said: "You know the union
election is coming on-I am a company man-and hope you will vote right."
W. B. Howe (plant operator on the oil unit at the Canal Plant) credibly testified
in substance that in October 1954 Chief Engineer Herman Davis talked to him con-
cerning the Union, and said: "I hear that you are one of the instigators of the Union";
and inquired in what way a union would help him.
Herman Zimmerman (warehouse employee) testified in substance that in October
1954 he inquired of Foreman Howard Bailey why he had not received a raise in
pay like others of equal seniority in the Plant. Bailey said he thought Zimmerman
was getting just as much as the other boys, and that if the Union comes in there will
be a lot of fellows taking a pay cut.15
"'Cf. Endicott-Johnson Corporation, 108 NLRB 88, 97-99; and cases cited therein.
'b Foreman Howard Bailey denied making any statement about the Union, but recalled
that when Zimmerman complained he made an investigation and found that the office
had inadvertently failed to record an increased merit rating which entitled him to an
increase in pay, and that the same error had occurred as to Paul Guillot Correction was
made and both men received retroactive wage increases.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edwin W. Wilgus (gas unit operator ) credibly testified in substance that prior to
the first representation election of November 4, 1954, Foreman Willard Smith (then
a plant operator and relief foreman ) came to him and inquired : "Ed, now that we
have plant seniority , do you think the employees need union representation ?" Smith
also inquired as to what he thought of setting up an independent union to bargain
for the men.
Bobby Joe Compton (oil unit operator) credibly testified in substance that Chief
Engineer Herman Davis talked to him concerning the Union shortly prior to the
second representation election of December 1 , 1955, and said: "I understand that
you're a big union man-well, how do you think it's going to help you." Then
Davis inquired whether I thought it would keep me from cleaning oil tips, water
sprays, etc . Having received a negative answer, Davis then inquired: "Well, then
why do you want to stick your neck out for the others?"
Compton testified also that Foreman Carroll Hughes required him to scrub the
concrete slab at the oil unit with BAB-O (a cleaning agent ), and to wash the pump
room floor with gasoline in close proximity to the open flame of an oil heater. On
another occasion Foreman Hughes refused to permit another employee to perform
this work at a time when he was sick and suffering from pleurisy.',,
Concluding Findings as to Independent Violations of 8 (a) (1)
With respect to the alleged independent violations of Section 8 (a) (1), I find no
expressions of threats of reprisal or force or promise of benefit . At most they were
isolated statements or interrogation by minor supervisors for which under the pro-
tection of free speech allowed by Section 8 (c) of the Act, the Respondent should
not be held accountable. The assignment of clean-up duties to Bobby Joe Compton
were not under the circumstances either dangerous or discriminatory, nor does it
appear vindictive to fail to relieve him from certain duties without request merely
upon the suggestion of another employee . I shall, therefore, recommend that all
allegations of independent violations of Section 8 (a) (1) of the complaint be
dismissed.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents Cabot Carbon Company and Cabot Shops, Inc.,
set forth in section III, part I , above, occurring in connection with the operations
described in section II, 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 Respondents Cabot Carbon Company and Cabot Shops, Inc.,
have assisted, supported , and dominated the Employee Committees named in the
complaint, including the so-called Central Committee, I shall recommend that said
Respondents cease and desist from such conduct, and as a corollary to the findinof
domination 17 that it withdraw recognition from and completely disestablish-the
Employee Committees, including the Central Committee , as the representatives of
any of its employees for the purpose of dealing with the Employer concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or conditions of
work; and that Respondents refrain fromrecognizing said Employee Committees and
the Central Committee, or any successors thereto, for any of the purposes defined
in Section 2 (5) of the Act. "Phis will not prevent the employees, after the unfair
labor practices have been remedied and the conditions for a free choice established,
from adopting representation from their own ranks or any other kind of representa-
tion, if such is their genuine desire, unfettered by employer domination, interference,
assistance, or support." 18
is As to the cleaning incidents, Foreman Hughes credibly explained that Compton was
required to use BAB-O because the Company had discontinued the use of a more expensive
solvent called Wedoc, which cost approximately $6 per gallon. As to the use of gasoline,
the foreman satisfactorily explained that the solution used was Vardol, which had the
appearance of white gasoline, but was not flammable. With respect to his failure to
velieve Compton when sick, he satisfactorily explained that Compton did not himself re-
quest relief, and when another employee (W. B. Howe) requested permission to relieve
Co,wpton he merely told Howe that if the man was too sick to do his work he should
ao home.
iiThe Carpenter Steel Co., 76 NLRB 670-673.
'&Ben Corson Manufacturing Co., 112 NLRB 323, 346.
SOUTHERN WASTE MATERIAL CO., INC. 1653
All findings of interference, restraint, and coercion, herein, are based entirely
upon and derive from the conduct of Respondents in dominating and interfering with
the election and administration of the Employee Committees, including the Central
Committee, and in contributing financial and other assistance and support to them.
Except for the unlawful conduct flowing from Respondents' relations to said Employee
Committees and the Central Committee, a preponderance of the evidence and the
record as a whole does not in my opinion support a finding that Respondents have
engaged in any other unfair labor practices. Nor am I persuaded from the record
in this case that any danger presently exists that the Respondents may in the future
engage in other unfair labor practices proscribed by the Act, which are not directly
related in kind to the unfair labor practices herein found to have been engaged
in by them. Under the circumstances, I shall not recommend the issuance of the
usual broad cease-and-desist order customarily issued where the future commission
or continuation of such other unfair labor practices are reasonably apprehended. I
shall, however, recommend that Respondents cease and desist from engaging in any
like or related conduct by otherwise interfering with the representation of its em-
ployees by or through a labor organization of their own choosing.
Upon the basis of the above findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The International Chemical Workers Union, AFL-CIO, and the Employee
Committees, including the Central Committee, named as interested parties in the
complaint, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By assisting, supporting, dominating, and interfering with the election and
administration of the Employee Committees and the Central Committee, named as
interested parties in the complaint, the Respondents Cabot Carbon Company and
Cabot Shops, Inc., have engaged in and are engaging in unfair labor practices in
violation of Section 8 (a) (2) of the Act.
3. By such conduct the said Respondents have interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of the
Act, thereby violating Section 8 (a) (1) of the Act,
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Southern Waste Material Co., Inc. and United Packinghouse
Workers of America, AFL-CIO, Petitioner. Case No. 16-RC--
7893. May 17,1957
SICIPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued herein on
July 20,1956,' an election by secret ballot was conducted on August 17,
1956, under the direction and supervision of the Regional Director
for the Sixteenth Region, among the employees in the unit found
appropriate by the Board. Following the election the parties were
furnished a tally of ballots. The tally showed that there were approx-
imately 52 eligible voters, and that 50 ballots were cast, of which 35
were for the Petitioner, 11 were for no union, and 4 were challenged.
The challenged ballots were not sufficient in number to affect the results
of the election.
The Employer, on August 21, 1956, filed timely objections to the
conduct of election. The Regional Director investigated the objec-
Not reported in printed volumes of Board Decisions and Orders.
117 NLRB No. 213.