Carbola Chemical Company, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1939

13 N.L.R.B. 939 (N.L.R.B. 1939)

In the Matter of CARBOLA CHEMICAL COMPANY, INC. and TALC
WORKERS UNION #20821, A. F. OF L.
Case No. C-948-Decided July 24, 1939
Limestone Mining and Limestone Products Manufacturing and Chemical
Industry-Coliechve Bargaining : charges of refusal to bargain collectively not
sustained-Complaint: dismissed.
Mr. Edward D. Flaherty, for the Board.
Mr. Edward J. Welch, of New York City, for the respondent
Mr. John J. Walsh, of Utica, N. Y., for the Union.
Mr. John K. Odisho, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Talc Workers Union No. 20821, affiliated
with the American Federation of Labor, herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Third Region (Buffalo, New York), issued
its complaint dated June 9, 1938, against Carbola Chemical Com-
pany, Inc., Natural Bridge, New York, 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 (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint and accompanying notice of hearing were duly
served upon the respondent and the Union. With respect to the
unfair labor practices, the complaint alleges in substance that the
employees of the respondent engaged in its mining, milling, and
print shop constitute a unit appropriate for the purposes of collective
bargaining; that on and after July 13, 1937, although a majority of
the employees in such unit had designated the Union as their repre-
sentative for purposes of collective bargaining with the respondent,
the respondent refused to bargain collectively with the Union as the
exclusive representative of such employees. The respondent duly
filed an answer admitting the allegations of the complaint that the
business of the respondent constitutes a "continuous flow of commerce
13 N. L. R. B, No. 97.
939
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the several states," but denying the alleged unfair labor
practices.
Pursuant to the notice, a hearing was held in Carthage, New York,
on July 7, 1938, before Peter F. Ward, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
The Board has reviewed the rulings of Trial Examiner upon motions
and objections to the admission of evidence made at the hearing and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On September 3, 1938, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served upon all parties, finding
that the respondent had not engaged in unfair labor practices affect-
ing commerce, within- the meaning of Section 8 (1) and (5) of the
Act and recommending dismissal of the complaint. Thereafter, the
Union filed exceptions to the Intermediate Report and a brief in sup-
port thereof.
Pursuant to notice duly served upon all parties, a hearing was
held before the Board in Washington, D. C., on June 23, 1939, for the
purpose of oral argument. The respondent and the Union were
represented by counsel and participated in the hearing. The Board
has considered the exceptions of the Union and, except to the extent
that they are consistent with the findings, conclusions, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDING OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a New York corporation, with its principal place
of business in New York City and a, plant and mine at Natural
Bridge, New York, is engaged in mining and grinding limestone and
talc, and in manufacturing kalsomines, disinfectants, white ashes,
and insecticides. About one-third of the raw materials used by the
respondent are received from points outside the State of New York
and about one-half of its products are shipped to points outside the
State of New York.
The respondent employs approximately 45 persons.
II. THE LABOR ORGANIZATION INVOLVED
Talc Workers Union No. 20821, is a labor organization affiliated
with the American Federation of Labor, admitting to membership
employees of the respondent.
CARBOLA CHEMICAL COMPANY, INCORPORATED 941
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The appropriate unit
The complaint alleges that the employees in the respondent's min-
ing, milling, and print shop constitute a unit appropriate for the
purposes of collective bargaining. At the hearing , Michael Walsh,
the Union's organizer, testified that only the production and main-
tenance employees of the respondent constitute an appropriate unit.
The respondent raised no objection to such a unit. We see no reason
for deviating from the unit suggested by the Union at the hearing.
We find that the respondent's production and maintenance em-
ployees, excluding clerical and supervisory employees, constitute a
unit appropriate for the purposes of collective bargaining and that
said unit insures to the respondent 's employees the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuates the policies of the Act.
B. Representation by the Union of a majority in the appropriate
unit
The complaint alleges that on and after July 13, 1937, a majority
of the respondent's employees in the above unit designated the Union
as their representative for the purposes of collective bargaining..
At the hearing, the respondent's attorney was afforded the oppor-
tunity to inspect the Union's membership cards signed by a majority
of the employees in the unit we have found to be appropriate. No
objection was raised to the authenticity of the signatures appearing
on the cards.
We find that on July 13, 1937, and at all times thereafter, the Union
was and has been the duly designated representative of a majority
of the respondent's employees in the appropriate unit, and, pur-
suant to Section 9 (a) of the Act, was and is the exclusive representa-
tive of all the employees in such unit for the purpose of collective
bargaining in respect to rates of pay, wages, hours of employment,
or other conditions of employment.
C. The alleged refusal to bargain
In a prior case 1 involving the same parties, the Board, on October
30, 1937, issued its Decision and Order, based upon a stipulation en-
tered into by the parties during the hearing of the case, requiring the
respondent to "enter into negotiations in good faith with the Talc
Workers Union, Local No. 20821, by its duly authorized representa-
tive, as the exclusive representative of its production and main-
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942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance employees, excluding the clerical and supervisory employees,
looking toward the making of an agreement covering the wages,
hours, and working conditions of its production and maintenance
employees, excluding supervisory and clerical employees, within ten
days from the date of the entry by the Board of this order."
On October 23, 1937, 9 days after the hearing in the former case,
the parties met at the office of John J. Walsh, attorney for the Union,
at Utica, New York. The respondent was represented by its presi-
dent, C. J. Zimmerman, and its attorney, Edward J. Welch, the
Union was represented by its president, Lebdell, and its attorney, J.
Walsh, and the American Federation of Labor, herein called the
A. F. of L., was represented by Michael Walsh, an organizer.
The Union had previously presented a proposed collective bargain-
ing agreement to the respondent for consideration. At this meeting,
the respondent presented a counterproposal which was discussed
clause by clause. M. Walsh testified that "there was nothing in this
proposed contract that the workers could accept because of the way
it was drawn." The respondent advised the Union that because of
the difficulties attending the renewal of its surplus electric power
contract there was a possibility that plant operations would have to
be discontinued indefinitely.
On November 20, 1937, the parties held a second conference at
which the respondent stated that, owing to the unsettled power
question then pending before the New York State Public Service
Commission, it appeared likely that the plant would close down on
December 1, 1937. There was little, if any, discussion of the pro-
posed contracts at this time.
On December 4, 1937, the parties held their third conference at
which both proposed contracts were discussed . The meeting ad-
journed without agreement. The respondent's president testified that
the plant was ready to close and that there were only five employees
retained during the week ending December 1, 1937. He further testi-
fied that he had been assured by one of the New York State Public
Service Commissioners that the power would not be cut off on De-
cember 1, as had been planned, until the matter was settled. As a
result of the illness of the respondent's president , the next meeting,
scheduled for December 21, 1937, did not take place.
On January 22, 1938, the parties held their final conference. Harry
J. Winters, Regional Director for the Third Region , attended this
meeting. At this time, the respondent presented a modified form 2 of
its original contract. This contract was discussed in detail with the
2 Welch , the respondent ' s attorney , testified that be changed some of the provisions of
the respondent 's original contract with the view to meeting some of the objections raised
to it by M. Walsh at the December 4 meeting
CARBOLA CHEMICAL CO_IIPANY, INCORPORATED 943
result that several clauses were either amended or stricken. Section 1
-of said contract, as presented, provided for recognition of the Union
as the collective bargaining agency for union members only. In the
course of the meeting, this provision was amended to include all the
employees in the appropriate unit. In substance, the Union objected
to a number of the provisions of the respondent's proposed contract on
the ground that the rights of the employees and the Union were not
adequately protected. The Union also objected to the entire contract
because of its phraseology and complexity.
The parties separated without having reached an agreement. The
respondent's attorney testified that at the conclusion of the conference
M. Walsh stated that the only contract the Union would sign was a
contract proposed by the Union. M. Walsh denied having made such
a statement. We find it unnecessary to resolve this conflict in the
testimony. The respondent's president testified that, had a satisfac-
tory agreement been reached, the respondent would have entered into
a signed written contract with the Union irrespective of the pending
power question. The respondent's attorney testified that the re-
spondent is still willing to negotiate with the Union.
In summation, the respondent met with the union representatives
on four different occasions. Beyond discussing the terms of both
proposed contracts, very little progress toward reaching an agreement
appears to have been made during the first three conferences. At the
fourth and final conference, the parties discussed in detail the re-
spondent's modified proposed contract with the result that several
clauses of said contract were either amended or stricken. The Union,
objecting generally to the contract as a whole, and specifically to sev-
eral clauses, insisted that the respondent was not bargaining in good
faith. The respondent, on the other hand, contended that it had
made a sincere effort to meet the demands advanced by the Union in
.the. form of its modified counterproposal.
The Union states in its'exceptions and argues in its brief that the
respondent evidenced bad faith in refusing to recognize it as the ex-
clusive bargaining representative of all the production and main-
tenance employees, in threatening to close its plant, and in submitting
a complicated counterproposal.
It is true that the respondent, in its counterproposal presented at
the January 22, 1939, conference, offered to extend recognition to the
Union as the representative of union members only. However, the
fact remains that the respondent amended this provision to meet the
objection of the Union at the same conference.
That the respondent, during the entire negotiations with the Union,
was experiencing difficulties in obtaining a satisfactory renewal of its
power contract, is not disputed. Notwithstanding this difficulty, the
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent met with the Union and discussed the terms of both pro-
posed contracts. We credit the testimony of the respondent's presi-
dent that, had a satisfactory agreement been reached, the respondent
would have entered into a signed written contract with the Union
irrespective of the pending power question.
Upon consideration of the provisions of the respondent's modified
proposed contract, we do not find that it constitutes evidence of bad
faith on the part of the respondent. We find that the respondent has
not refused to bargain collectively with the representatives of its
employees.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations and business of the respondent constitute a con-
tinuous flow of trade, traffic, and commerce among the several States,
within the meaning of Section 2 (6) of the Act.
2. Talc Workers Union No. 20821, affiliated with the American Fed-
eration of Labor, is a labor organization, within the meaning of Sec-
tion 2 (5) of the Act.
3. The respondent has not refused to bargain collectively with the
representatives of its employees, thereby engaging in an unfair labor
practice, within the meaning of Section 8 (5) of the Act.
4. The respondent has not, by refusing to bargain collectively, inter-
fered with, restrained, or coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby engaging in an
unfair labor practice, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board orders that the complaint herein
be, and it hereby is, dismissed.