General Chemical Co.

National Labor Relations Board - Board Decisions

Dec 21, 1943

53 N.L.R.B. 1457 (N.L.R.B. 1943)

In the Matter of GENERAL CHEMICAL COMPANY and UNITED GAS,
COKE & CHEMICAL WORKERS OF AMERICA, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS
In the Matter of GENERAL CHEMICAL COMPANY and UNITED GAS,
COKE & CHEMICAL WORKERS' OF AMERICA, AFFILIATED WITH THE
CONGRESS OF INDUSTRIAL ORGANIZATIONS
Cases Nos. 2-C-5176 and 8-5025 respectively. Decided December
21,1943
DECISION
AND
ORDER
Pursuantn to a Decision and Direction of Election of the Board,'
an election was held on April 12, 1943, among the employees of Gen-
eral Chemical Company, Edgewater, New Jersey, herein called the
respondent, at its plant at Edgewater, New Jersey, to determine
whether or not United Gas, Coke & Chemical Workers of America,
affiliated with the Congress of Industrial Organizations, herein called
the Union, was the representative of the majority of the employees
for the purposes of collective bargaining. The Union lost the elec-
tion. Thereafter, the Union filed objections to the election, alleging,
in part, that the respondent had engaged in unfair labor practices
which had affected the results of the election. On June 17, 1943, the
Regional Director, after investigating such objections, found that they
raised substantial and material issues with respect to the conduct of
the ballot, and recommended that a hearing be held on such objections.
On May 19 and July 22, 1943, the Union filed an original and amended
charge, respectively, alleging that the, respondent had engaged in
unfair labor practices, upon which charges a complaint was subse-
quently issued by the Board. On July 8, 1943, the Board issued an
order consolidating the above proceedings and directing that a hearing
be held on the objections to the election and on the alleged unfair
labor practices. A hearing was held before a Trial Examiner in
Jersey City, New JerEey, from August 16 to 25, 1943, in which the
Board, the respondent, and the Union participated by their repre-
148 N . L. R. B. 923.
53 N. L . R. B., No. 263.
1457
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives. During the course of the hearing, the respondent made
various motions to dismiss the representation proceeding, in whole or
in part, and the Union moved to sever the representation proceeding
from the complaint proceeding. These motions, which were referred
by the Trial Examiner to the Board, are hereby denied. The Board
has reviewed the Trial Examiner's rulings on motions and on ob-
jections to the admission of evidence and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
On September 18, 1943, the Trial Examiner issued his Intermediate
Report, a copy of which is attached hereto, in which he found that the
respondent had engaged in certain unfair labor practices. There-
after, the respondent filed exceptions to the Intermediate Report and
a brief in support of its exceptions. In its exceptions, the respondent
moved to dismiss the complaint as well as the Union's objections to the
election. On November 5, 1943, the Union filed a motion .that the
representation proceeding be severed from the complaint proceeding
and that a further hearing be held in the representation proceeding.
These motions of the respondent and the Union are hereby denied.
Oral argument was held before the Board in Washington, D. C., on
November 23, 1943.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, except
insofar as they are inconsistent with our findings and order herein-
after set forth.
1. We agree with the Trial Examiner's conclusion that the respond-
ent engaged in unfair labor practices, within the meaning of Sec-
tion 8(1) of the Act. However, we rely solely upon the following
events in support of that conclusion: 2 (a) Foreman Haring's remarks
to Chieco in the early part of February 1943, that the respondent was
opposed to the unionization of its employees; 3 (b) Superintendent
Elwood's attempt, around the latter part of February 1943, as em-
ployees were coming out of the plant, to prevent Mullica, an organizer
for the Union, from distributing union leaflets on a sidewalk adjoining
a roadway outside the entrance to the plant; 4 (c) Elwood's inquiry
2 In finding that the respondent violated Section 8 (1) of the Act, we do not rely on
the alleged anti-union remarks of Harry Evans or William Heydash, and we accordingly
find it unnecessary to pass on the respondent's accountability for their conduct. Nor do
we find it necessary to determine the status in this regard of the "chiefs," other than
Heydash, who work in Foreman Wallace's department.
a We credit, as did the Trial Examiner, Chieco's testimony that such remarks were made,
against Haring's denial, Chieco having impressed us as the more trustworthy witness.
4 Upon all the evidence, we find that Elwood first objected to Mullica's distribution of
the leaflets on the ground that he had no permit to do so, and that, when Elwood was
advised that no permit was required, he objected to the distribution on the ground that the
sidewalk where Mullica was stationed was the respondent's property. We further find
that Elwood's action was designed to interfere with and discourage union activity, and
not to protect the respondent's property or for any other legitimate purpose.
GQNE1 AL CHEMICAL COMPANY 1459
of Ernst, in March 1943, as to why Ernst was "carrying the ball" in
the Union for the other employees, and what he expected in return,
and Haring's remark to Ernst, on the same occasion, that the respond-
ent was opposed to the "CIO" because it was composed of "Jews and
communists"; 5, (d) Haring's statement, in the early part of March
1943, to Joseph Antol, whose brother was preparing for a better posi-
tion in the plant than he then occupied, that if Joseph Antol did not
"stop" his brother from "talking about the union, in favor of it, to the
different fellow workers," Elwood would hear "about [his] brother's
favoritism toward the union" and his brother would not obtain that
position; 6, (e) the remarks make by Haring to Mullica, on April 2,
1943, that it was Haring's duty to keep the Union out of the plant
and that he would do all he could to accomplish this; 7 (f) Haring's
statement to Joseph Antol, on April 2, 1943, that the Union could not
benefit the employees; s (g) Foreman Wallace's statement to Zelenka,
on or. about April 9, 1943, that if the Union "come in we only work
five days," 9 which was followed a day later by a remark by Elwood
to a union committee that, if the Union lost the election, he wanted
"all this union activity stopped" and that he had ways of stopping it,
"such as Saturday." 10
It is clear, and we find, that the foregoing statements and acts of
the respondent's superintendent and foremen, as well as the demotion
of employee Priehl because he was a union member and protagonist,
as found below, were integral parts of a course of conduct by the re-
spondent designed to defeat the Union's organizational campaign and
to affect the results of the election held on April 12, 1943. We further
find that such conduct, which included threats of, as well as actual,
economic reprisals for union membership and activity was plainly
coercive and violative of Section 8 (1) of the Act.
E Elwood and Haring contradicted Ernst's testimony that such a conversation took place.
We believe Ernst to be the more trustworthy witness, and we credit his testimony in this
regard.
- G , This is based on Joseph Antol 's version of the conversation , which was different from
Haring 's. We find Antol to be the more trustworthy witness, and we credit , as did the
Trial Examiner , his version of the conversation.
7 We credit, as did the Trial Examiner , the testimony that Haring made such remarks,
against Haring's and Elwood's testimony that Haring did not make them . As already
noted , Haring and Elwood did not, on the whole, impress us as credible witnesses.
8 Haring in effect denied that he made this statement , which was attributed to him by
Antol. As already indicated , we find Antol to be the more credible witness.
9 At that time , the respondent was operating on a 6-day week , with time and a half
for work on Saturday. Zelenka impressed us, as he did the Trial Examiner, as a trust-
worthy witness, and we credit his testimony that the foregoing statement was made, against
Wallace's denial i
-1O We credit , as did the Trial Examiner , the testimony that Elwood made that remark,
against Elwood's denial. We further find, upon the entire record , that, by such remark,
Elwood meant that, if union activity did not cease upon the Union's losing the election,
he would reduce the work week from 6 to 5 days , and that the union committee so inter-
preted his remark.
1460 DECISIONS or NATIONAL LABOR RELATIONS BOARD
2. We agree with the Trial Examiner's conclusion that the demotion
of Priehl on February 18, 1943, from his position as cooper to a posi-
tion as paraffiner, was discriminatory.
The respondent contends that it transferred Priehl to a position as
paraiiner and retained Galla in coopering work, on February'18, 1943,
because it then regarded the two men as being approximately equal in
ability as coopers and believed that Galla should be preferred over
Priehl because of Galla's plant and departmental seniority. We do
not credit this contention. It is hardly likely that the respondent re-
garded Galla, who had had experience as a cooper for only 4 weeks
(January 20 to February 18, 1943),11 and who, during that period, was
rated as a second-class cooper,12 as being approximately equal in ability
to Priehl, who we find had for years worked satisfactorily as a first-
class cooper when such work was available: Moreover, we are con-
vinced that seniority considerations did not motivate the respondent's
transfer of Priehl and retention of Galls 13 Thus, while a. fixed sen-
iority policy may have been followed by the respondent in lay-offs, the
evidence, in our opinion, does not establish that it was customarily
followed in* transfers. 14 Also, upon all the evidence, we find that
Foreman Haring, who made the decision to transfer Priehl and retain
Galla on the occasion in question, did not at that time know the nature
of the respondent's seniority policy. Nor has any cogent reason been
advanced as to why the respondent waited until February 18, 2 days
after Priehl had openly declared himself as a union advocate, to give
expression to Galla's departmental and plant seniority over Priehl.
That Galla's seniority over Priehl was not responsible for Galla's re-
Upon the entire record , we do not credit Haring's testimony that Galls , for several
months prior to January 1943, was being "broken in" as a cooper.'
12 For the reasons hereinafter set forth, we agree with the Trial Examiner that the
respondent 's contention that Galla was in fact put on as a first-class cooper on January
20, 1943, and that he was paid 10 cents an hour less than were Priehl and the other coopers
only because he did not have his own cooper's tools , should not be credited . Elwood and
Haring testified that the respondent had a policy of paying a cooper who did not have his
own tools 10 cents an hour less than those who did; yet neither of them was able to cite
one instance , other than Galla's, in which such a policy was followed. Also, Galla's
employment record lists him as a second -class cooper on January 20, 1943. Further, the
fact that Galla had had no experience as a cooper strongly suggests itself as the true reason
for paying him 10 cents less than was paid the other coopers , who had had years of
coopering experience.
la We, however, do not agree with the Trial Examiner's reason for discrediting the respond-
ent's contention that its transfer of Priehl and retention of Galls were motivated by
seniority considerations,-namely, that while Galla had plant and departmental seniority
over Priehl , the two men were not in the same grade , and that under such circumstances
seniority is not a controlling factor.
14 Thus, while there is some testimony indicating that on certain occasions an employee's
seniority was considered in transfers from one position to another , Foreman Wallace ad-
mitted that the respondent had no fixed seniority policy applicable to transfers . Wallace
testified as follows :
Q. Do you have any fixed rule on seniority in the plant?
A. During a lay-off, yes . . . All over the plant.
Q. In transf=ers from one place to another , does seniority control[
A. No, sir.
GENERAL CHEMICAL COMPANY 1461
tention is further evidenced by the fact that, according to Priehl,
whose testimony we credit, Haring, in giving Priehl the reason for
transferring him and retaining Galla, made no mention of Galla's
seniority over Priehl, but merely stated that he wanted to "break in"
Galla.
In support of its contention that Galla's seniority motivated its
conduct on February 18, 1943, the respondent points to the fact that
during the years prior thereto, when coopering work diminished,
Priehl would be transferred out of the cooper shop to perform mis-
cellaneous work, while Galla would be retained in the cooper shop
as a cooper's helper at a rate higher than that received by Priehl for
such miscellaneous work. However, this practice may have been due,
not to any seniority considerations, but rather to the inadvisability
of effecting two transfers whenever coopering work for Priehl, who
was one of a few coopers, was not available,-namely, transferring
Priehl to Galla's position as helper, and transferring Galla to other
miscellaneous work outside the cooper shop. Further, as already
indicated, we are not satisfied that the respondent followed any fixed
seniority policy in transfers from one position to another, and Haring,
the foreman of the cooper shop, did not know the nature of the respond-
ent's seniority policy. Also, the record discloses at least one instance
when Priehl worked as a first-class cooper while Galla worked as a
laborer outside the cooper shop at a rate substantially lower than
Priehl's rate as a cooper. Moreover, it is clear that up to February
18, 1943, whenever Priehl and Galla worked in the cooper shop, Priehl
always enjoyed a higher classification and rate than Galla.
That the respondent's transfer of Priehl and retention of Galla on
the occasion in question were discriminatory is evidenced not only by
the inadequacy of the reason assigned by the respondent- for its action,
as found above, but also by the following: (a) the respondent's, and
particularly Foreman Haring's, clear hostility towards the Union;
(b) the fact that Priehl, 2 days prior to his transfer, openly expressed
himself at the plant as a union protagonist; 11 (c) the fact that Haring
believed that Priehl was the only employee in the cooper shop who
was a union member and made it a point to advise the leader in the
cooper shop of that fact; and (d) the fact that Galla was not a union
member.
15 This took the form of a remark by Priehl that the Union was "good ," which was made
in reply to a statement to the coopers by Nayman, who was the leader in the cooper shop,
that if the Union organized the plant, the work week would be reduced to 5 days. That
the respondent had knowledge of Priehl 's remark is evidenced by the following circum-
stances as well as the record as a whole : ( 1) Nayman, while not a supervisory employee,
was the leader in the cooper shop, and, judging from Haring 's remark to Nayman that
"you say to me nobody sign in cooper shop union ; Rudy [Priehl] signed already," Nayman
kept Haring advised of the union membership and activities of the cooper shop employees ;
(2) the cooper shop was apparently composed of a small and compact group of employees,
and Haring was in close touch with them.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. We do not agree with the Trial Examiner's conclusion that the
decrease in Mojher's rate of pay when he performed laborer's work,
commencing on or about February 22, 1943, was discriminatory.
The record discloses that the supply of raw material necessary .for
the manufacture of aluminum sulphate in the Iron Free Aluminum
Sulphate Department, herein called' the Alum Department, which is
work in which Mojher was principally engaged, as an operator,the'
was exhausted on or about February 22, 1943, that the respondent did
not know when a new supply would be available, and that 'it there-
fore transferred Mojher from 'his position as operator in the 'Alum
Department to another department in which principally laborer's
work was performed at a rate of 92 cents an hour. Further, there is
evidence which supports the respondent's contention that it followed.
a practice of paying an employee transferred permanently or for an
indefinite period from his regular position to other work, at the rate'
called for by the other work; whether that rate was lower or higher
than the rate of the pos^tion from which he was transferred. 16 • Also,
according to Mojher's own testimony, which we credit, when, • in the
early part of May 1943, the respondent received a new supply of raw
material for the manufacture , of aluminum sulphate and, transferred'
Mojher back to the Alum Department as an operator,'Mojher, received
the operator's rate of $1.06 an hour even though he at times' performed
laborer's work, thus resuming the practice which obtained prior) to
February 22, 1943, when Mojher was engaged principally as' an
operator in the Alum Department.
The Trial Examiner, in finding that, the decrease in: Mojher's rate'
of pay on or about February 22, 1943, was discriminatory, relied in
part on the fact that different, treatment was accorded employee's
Cervenka, Vach, and McCarney, who,- both before and after February
22) 1943, received the rate called for'by their regular positions whether
they ' performed work in their regular positions or laborer's ^ work.
However, the record discloses that their situations were not com-
parable to Mojher's.' Thus, unlike Mojher, they performed as 'much
or more work in-their regular positions after February 22, 1943, as
before.' There was therefore no reason for decreasing their rates
of pay when they performed laborer's work after February 22. More-
over, the record discloses instances, both, prior and subsequent to
February 22, 1943, when, because of a cessation of operations in the
departments to which they were regularly attached, they,,like Mojher
on February 22, 1943, were transferred to other work calling, for a
lower rate and received the lower rate.
"We note that Mojher himself, in'June 1941, was transferred from his position as,
operator in the Alum Department at a 99 -cent rate to a position as "Scaleman "" in the,
same department at an 83-cent rate.
GENERAL CHEMICAL COMPANY 1463
While, in view of the evidence as a whole, the Trial Examiner's
conclusion that the decrease in Mojher's rate of pay on February
22, 1943, was discriminatory, is not entirely without foundation, we
are not convinced, in the light of the matters set forth above, that the
record warrants a finding that such decrease was motivated by Moj-
her's union membership or activities. We shall, accordingly, dismiss
the complaint, as amended, insofar as it alleges that the respondent
discriminated against Mojher.
4. We find that, since the respondent engaged in unfair labor
practices prior to the election held on April 12, 1943, the election was
not an expression of the will of an uncoerced majority of the em-
ployees and should therefore be set aside, and we shall so order."
When we are advised by the Regional Director that the time is ap-
propriate, we shall direct that. a new election be held among the
employees at the respondent's Edgewater, New Jersey, plant.
ORDER
Upon the above additional findings of fact and the entire record
in the case, and pursuant to Section 10 (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, General Chemical Company, Edgewater, New
Jersey, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership,in United Gas, Coke & Chemical
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, or in any other labor organization of its employees, by
demoting or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their on choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Rudolph Priehl immediate and full reinstatement
to the position he would have occupied but for the discrimination
against him, or to a position substantially equivalent thereto, without
prejudice to his seniority and other rights and privileges; a-
" The Union 's objections to the election are sustained only insofar as they allege the
commission by the respondent , prior to the election , of the unfair labor practices found
herein.
1464 DECISIONS OF NATPONAU LABOR RELATIONIS BOAIRI
(b) Make whole Rudolph Priehl for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages, had the discrimination against him not
occurred, from the date of the respondent's discrimination against
him to the date of the respondent's offer of reinstatement, less his
actual earnings during such period as an employee of the respondent;
(c) Post immediately in conspicuous places at its plant in Edge-
water, New Jersey, and maintain for a period of not less than sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating : (1) that the respondent will not engage in the conduct
from which it is•ordered to cease and desist in paragraphs 1 (a) and
(b) of this Order; (2) that the respondent will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that the respondent's employees are free to become and remain mem-
bers of United Gas, Coke & Chemical Workers of America, affiliated
with the Congress of Industrial Organizations, and that the respond-
ent will not discriminate against any employee because of mem-
bership or activity in that organization;
(d) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the election held on April 12,
1943, among the employees of General Chemical Company, at its
Edgewater, New Jersey, plant, be, and it hereby is, set aside.
AND IT IS FURTHER ORDERED that the complaint, as amended, be, and
it hereby is, dismissed insofar as it alleges that the respondent dis-
criminated in regard to the hire, tenure, or terms or conditions of
employment of Joseph Mojher and Arthur Ernst.
INTERMEDIATE REPORT
Daniel Baker, Esq., of New York City, for the Board.
Wall, Haight, Carey & Ilartpence. by Frederick W. Schumann, Esq., of Jersey
City, New Jersey, for the respondent.
Samuel L. Rothbard, Esq., by Clarence Talisman, Esq., of Newark, New Jersey,
for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed July 22, 1943, by United Gas, Coke, and Chemi-
cal Workers of America, affiliated with the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Second Region (New York City, New
York), issued its complaint dated July 24, 1943, against General Chemical Com-
pany, herein called the respondent, alleging that the respondent, at its plant
in Edgewater, New Jersey, has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
GENERAL CHEMICAL COMPANY 1465
the Act. Copies of the complaint and amended charge, accompanied by notice of
hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint as originally issued
and served, alleged in substance that the respondent: (1) on or about April 16,
1943, discharged Frank Scozzafaca, an employee at its Edgewater plant; (2)
on or about March 5, 1943, decreased the rate of pay of Joseph Mohjer, an
employee at its Edgewater plant; (3) on or about April 5, 1943, assigned to more
arduous and less agreeable work, Arthur Ernst, an employee at its Edgewater
plant and, since the dates of the discharge, the decrease in pay and the assign-
ment to more arduous and less agreeable work described above, has failed,
refused and continues to fail and refuse to reinstate the employees above named
to their former or substantially equivalent positions or employment because
they had joined and assisted the Union and have engaged in other concerted
activities for the purposes of collective bargaining or other mutual aid or
protection; (4) from on or about January 1, 1943, to the date of the issuance
of the complaint, has vilified, disparaged and expressed disapproval of the
Union ; has interrogated its employees concerning their union affiliation ; has
urged, persuaded and warned its employees to refrain from assisting, becoming
members of or remaining members of the Union, and threatened its employees
with discharge or reprisals if they joined or assisted the Union; has urged,
persuaded and warned its employees to vote against the Union in an election
conducted by the National Labor Relations Board on April 12, 1943, and has
threatened its employees with reprisals if the Union won the said election,
and by,such acts has interfered with, restrained, and coerced its employees and
is interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act; (5) by the actions aforesaid{
the respondent has engaged in unfair labor practices within the meaning of
Section 8 (1) and (3) of the Act. On August 17, 1943, during the course of the
hearing on the complaint above referred to, counsel for the Board moved to
dismiss without prejudice, that portion of the complaint referring to the dis-
charge of Frank Scozzafaca. The motion was granted without objection. Fol-
lowing the above motion to dismiss, counsel for the Board moved to amend the
complaint to include an allegation that, in February 1943, the respondent de-
moted Rudolph Priehl and decreased his rate of pay for the reason that he
had joined and assisted the Union and engaged in other concerted activities
for the purpose of collective bargaining and other mutual aid and protection.
The motion to amend was granted and the right to a continuance for the
purpose of answering the allegations of the: amendment was waived by the
respondent. At the commencement of the hearing, a motion of the respondent
for a bill of particulars *as granted in substance. The information requested
by respondent in its motion for a bill of particulars was informally furnished
by counsel for the Board and read into the record and was pronounced by counsel
for the respondent to be sufficient for its purposes.
On April 12, 1943, pursuant to an Order and Direction of Election issued in
Case No. R-5025, an election was held, under the supervision of the Board,
among the production and maintenance employees of -the respondent's plant
at Edgewater, New Jersey, to determine whether they desired to be repre-
sented for the purposes of collective bargaining by the Union. The result of the
election was adverse to the Union by a vote of 94 to 93. Following the election,
objections thereto were filed by the Union in which it was alleged that the
respondent had interfered with the conduct of the election. Following the
issuance of the election report by the Regional Director for the Second
Region, the Union filed further objections and amended objections to the elec-
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion report. On July 8, 1943, the Board entered an order directing that a hear-
ing be held on said objections and that Case No. R-5025, be consolidated with
Case No. 2-C-5176, that being the case in which the amended charge of July
22, 1943, was filed as hereinabove set forth.
The answer of the respondent, as amended to conform to the amendment to
the complaint above referred to, admits all the allegations of the complaint
with reference to the corporate structure of the respondent and the nature
and extent of business done by it, but denies all the allegations of the complaint
which in any manner refer to the engagement by respondent in unfair labor
practices.
Pursuant to notice, a hearing was held between August 16, and 25, 1943,
at Jersey City, New Jersey, before R. N. Denham, the undersigned Trial Ex-
aminer, duly, designated by the Chief Trial Examiner. The Board, the Union,
and the respondent were represented by counsel. All parties participated in
the hearing where full opportunity was afforded them to be heard, to examine
and cross-examine witnesses and to introduce evidence bearing upon the issues.
At the close of the introduction of evidence by the Board the respondent moved
for dismissal of that portion of the complaint referring to the objections to the
election of April 12, 1943. The motion was denied. The respondent then moved
for the dismissal of the complaint in its entirety, which motion was denied.
At the close of, all the testimony the above motions to dismiss were renewed.
The motion to dismiss with reference to the objections to the election and the
election 'reports was denied. The motion to dismiss the complaint in its
entirety was taken under advisement and it is now denied. After the con-
clusion of all the testimony, counsel for the Board moved to amend the com-
plaint to conform to the proof. The motion was- granted to apply to all plead-
ings herein for the purpose of correcting names, dates and other minor recitals
not affecting the issues of the case. Oral argument at the close of the hearing
was waived by all parties, as was the privilege of filing briefs with the Trial
Examiner.
Upon the basis of the foregoing and after having heard and observed all
the witnesses and considered the exhibits admitted into evidence, and upon
the entire record herein made, the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent General Chemical Company concedes that it is engaged in
commerce within the meaning of the Act and for the purposes of this case, is
within the jurisdiction of the Board. It is a New York corporation with its
principal office at 40 Rector Street in the City of New York, State of New York.
It owns and' operates a plant at River Road, Edgewater, New Jersey, which is
hereinafter referred to as the Edgewater plant and is now and at all pertinent
times herein has been continuously engaged at that plant in the manufacture,
sale, and distribution of heavy chemicals and related products. During the
year ending March 31, 1943, the respondent caused to be purchased, transferred
and delivered to its Edgewater plant, sulphur and other materials in excess of
40,000 toss of which approximately 50 percent was transported to such plant
in interstate commerce from states of the United States other than New Jersey.
During the same period respondent caused to be manufactured at its Edgewater
plant, products in excess of 100,000 tons of which approximately 40 percent was
transported in interstate commerce to States of the United States other than
the State of New Jersey. Approximately 75 percent of the respondent' s opera-
tions at the Edgewater plant are devoted to the prosecution of the war effort.
GENERAL CHEMICAL COMPANY 1467
II. THE ORGANIZATION INVOLVED
United Gas, Coke & Chemical Workers of America, affiliated with the Congress
of Industrial Organizations is a labor organization admitting to membership the
employees of the respondent at its Edgewater plant.
III. THE UNFAIR LABOR PRACTICER
A. Interference, restraint and coercion
Almost' without exception, the testimony of the material 'witnesses on the
opposing sides of 'this controversy'is in such complete conflict both in material
and minor matters that the findings made herein are, and must be, in the main
based upon the Trial Examiner's determination of the credibility of the various
witnesses'as"reflected by the reasonableness of their testimony, their attitude and
demeanor while on the witness stand and whatever corroborating elements may
be found in other parts of the record.'
The respondent's plant at Edgewater covers a space about 900 feet square and
consists of a fully equipped chemical plant for the manufacture of heavy chemi-
cals, about 10 of which constitute the major production of the respondent at this
plant.' The total maintenance and production employment is slightly over 200
persons. Walter L. Elwood, Jr., is the superintendent in general charge and the
senior executive officer stationed there. Ernest E. Weldon, Jr., general foreman,
is second in charge after Elwood. The plant is divided into 25 separate depart-
ments which are supervised by 9 foremen, some of whom have charge of a single
department while others have jurisdiction over several. For the purposes of this
report, it is necessary to identify only Walter J. Wallace, master mechanic and
general foreman over carpenters, pipe fitters, lead burners, riggers, painters,
welders 'and miscellaneous helpers, a total of about 60, and James H. Haring,
foreman of those departments which include packaging, coopering, shipping and
loading, unloading, all dock operations, waste disposal and miscellaneous com-
mon labor not included in Wallace's department. Haring has from 50 to 70
men under him, depending on the plant operations.
In Wallace's department, each subdivision has a key man or pusher who car-
ries the'title of "chief." Thus, Hartstein is chief pipe fitter; 'William Heydash is
chief carpenter ; Fasciano is chief rigger ; Walther is chief machinist and Tucker
is chief lead burner. With the exception of Tucker, all the chiefs work on an
hourly basis and at a rate somewhat higher than the others in their respective
groups. At the beginning' of each day, Wallace instructs them as to the jobs to
be done and in most instances designates specific men to be assigned to the
particular jobs laid out for that day. The chiefs then return to their respective
gangs, make the assignments as instructed by Wallace and work along with the
men, at the same time doing a certain amount of supervising but with no power
to hire or discharge and no specific authority to recommend action with reference
to the pay or employment of any of the men in their gang. In the absence of
Wallace, or in an emergency, they make their own assignments. Tucker, on
the other hand, is a salaried employee in charge of the lead burning division
of Wallace's department. He lays out the work, personally supervises all the
I In determining which testimony to accept and which to reject, it is to be noted that
in no instance has any witness been wholly discredited to the extent that no part of his
testimony has been considered . Part of the testimony of several witnesses who are other-
wise regarded as generally credible, have been disregarded where they are wholly inconsistent
with the general over-all history of . the controversy and where they are in conflict with
other testimony that is in keeping with the over-all history. Thus, parts of Mullica's testi-
mony have not been credited, while other parts have been accepted in the face of contra-
dictions . The same is true of the testimony of Elwood and others.
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lead burners and helpers in his division, keeps their time and is conceded by the
respondent to be a supervisory employee. When men are transferred from one
type of operation to another, they are told to report to the chief whose crew they
are to join. The chiefs transmit Wallace's orders and see that they are carried
out. Patently they are in immediate charge of their respective classes of work
under the general supervision of Wallace and are recognized by the employees
accordingly. In at least one instance, Wallace assembled the carpenter group
and announced that they were to take orders from Heydash. Harry Evans is the
safety inspector of the entire plant. He reports only to and takes orders only
from the superintendent. He has no authority to discipline employees who dis-
obey safety rules but reports such violations to the superintendent who in turn
passes the report on to the foreman in whose department the violation may have
occurred, for appropriate action. He does not attend the daily meetings of the
foremen but does attend the semi-monthly safety meetings of foremen, at which
he rotates with the others as presiding officer, and also attends the monthly de-,
partmental safety meetings of all employees. At these meetings he, together with
the foreman and Elwood customarily address the employees on safety matters.
They are the only ones who do so. The respondent denies that the various
chiefs' and Evans are supervisory employees or employees for whose conduct it
is in any manner responsible. In partial support of this, it pointed out that at
the election of April 12, 1943, the Union agreed to their inclusion in the list of
eligible voters and that they did in fact vote without challenge. Agreements of
this character concerning inclusions in or exclusions from an appropriate unit for
election purposes may have a tendency to throw light on the way in which certain
employees were regarded by the others, but are not concli save. Many factors
may have influenced the Union's agreement to such inclusion. In fact, there is
some evidence that the Union reluctantly accepted the inclusion of these employ-
ees among the eligible voters. However, for the purposes of this controversy, the
status of the various chiefs and Evans must be and is here determined by the
nature of the duties performed by them, regardless of the limitations on their
authority to hire or discharge employees or effectively to make recommendations
concerning their hire or any other condition of employment. These duties and
functions were such that they were regarded by the employees as being represent-
atives of management in a similar manner to those referred to by the Supreme
Court in the International Association of Machinists Case:
To be sure, they were not high in the factory hierarchy and apparently
did'not have the power to hire and fire but they did exercise general author-
ity to translate to their subordinates the policies and desires of the
management.
'It is found, therefore, that Safety Inspector Evans and the respective chiefs
above referred to, including Heydash, were in fact representatives of the respon-
dent in their relations with the employees of the respondent. '
In the latter part of 1942, the respondent had authorized a substantial con-
struction program at the Edgewater plant, consisting of the demolition of
certain obsolete equipment and replacing it with more modern facilities. At
the same time, consideration was being given by Elwood to the matter of em-
ploying women in all jobs they reasonably could fill and releasing the men then
on such jobs for other and more arduous duties for which women were not con-
sidered to be adapted. In connection with this he caused Weldon to make a
survey of the various departments and report to him the number of jobs in
s Exclusive of Tucker.
'International Association of Machinists etc. v. National Labor Relations Board, 311
U. S. 72.
GENERAL CHEMICAL COMPANY 1469
each department which could be filled by women. This survey was made while
Elwood was on some special duty at the Delaware plant of the respondent during
November and December 1942, and part of January 1943. Elwood completed
his duties at the Delaware plant in the latter part of January and on Saturday
January 23, 1943, returned to his home in New York City. On that date he
held a telephone conversation with Weldon concerning the affairs generally at
the Edgewater plant and at that time was advised by Weldon that organizational
activities by the Union had just been started at the Edgewater plant.
For several years past, the respondent has been under contract with the Team-
sters Union of A. F. of L. as to its truck drivers and chauffeurs, but aside from
that, the employees have not been organized. There is some evidence that on
one occasion in 1941 and on another in 1942, a representative of the Union dis-
tributed literature at the gate of the respondent's plant in Edgewater, but efforts
by the Union to organize the employees in the plant were not started until the
latter part of January 1943, under the direction of Gerard Mullica, an inter-
national representative and organizer for the Union. One of Mullica's first moves
was to set up an organization committee of some 8 or 10 employees among whom
were Arthur Ernst, Joseph Mohjer, John Baum, and Joseph Kubica all of whom
were employed in various capacities at the plant. This committee appears to,
have functioned for all Union purposes during the period here considered.
On Monday, January 25, Elwood returned to the Edgewater plant and resumed
his duties as superintendent. On that morning he attended the customary
Monday morning meeting of the foremen,' at which the operations of the plant
in general were discussed, as was the proposed construction program and the.
possibility of substituting women for men in some of the jobs in the plant-
At this meeting Elwood also called the attention of the foremen to the fact
that the union activities had started and cautioned them to assume a neutral
attitude and not to discuss union membership with any of the men but rather
to advise any who might want to talk about it, that this was a subject which
the men would have to decide for themselves and then walk away from the
man. In this connection it is to be noted that Evans and the various chiefs
did not attend this meeting nor do they ever attend the daily meetings of the
foremen.
When the Union activities started in January, the plant was operating on
a 5-day---40-hour week. Shortly thereafter, it began operating on a 6-day-48-hour
week basis with time and a half paid the employees for Saturday's operation.
Almost as soon as the organizational activity got under way, Evans began
a campaign against it. In addition to his duties as safety inspector, Evans is
also treasurer of a beneficial association which exists in the plant. As safety
inspector, his duties carry him to all parts of the plant and as treasurer ' of
the Association he customarily utilizes company time for the collection of dues.
Evans freely admitted on the stand that when the Union began to get under
way in January, he spoke to Joseph Mohjer about it during his rounds of the
plant; that he asked Mobjer what he knew about the Union; that Mohjer
replied that he knew nothing about it, and that he, Evans, entered into a dis-
course in which he told Mohjer that he thought the Union would be a bad
thing for the plant and for all the employees in it, that it would make trouble
and that nothing good could come of it. Mohjer testified that during this con-
versation, Evans told him not to sign a union card ; that he had heard the plant
was going to go on a 6-day week and that if the Union were to come into
the plant, they would not get that extra work. Evans knew of the proposed
4It was customary to hold a foreman ' s meeting each afternoon except Saturday. The
Monday morning meeting was in lieu of the Saturday meeting.
559015-44-vol. 53-94
1470 , DECISION'S OF NATIONAL LABOR RELATIONS BOARD
extension of the work week at the time, but could not recall whether he had
mentioned it in his conversation with Mohjer. It is found, however, that the
conversation included not only Evans' admitted remarks concerning the Union
but also those with reference to the 6-day week which were attributed to him
by Mohjer.
On January 29, Mullica and Elliott, the Regional Director for the Union .in
New Jersey called on Elwood to advise him that the Union had instituted
organizational activities in the plant ; that they did not claim to have a ma-
jority at that time but that they were being interfered with by the anti-union
activities of Foremen Wallace and Haring, Chief Carpenter Heydash and Safety
Inspector Evans, and requested Elwood to instruct these men to stop their
interference.' Elwood agreed to do so. Elwood testified that he did in fact
caution the foremen and particularly that he cautioned Evans " against
interfering. I
At this meeting they also requested Elwood to bargain with the Union for its
members only and to post a notice which they prepared, reading as follows:'
Representatives of the United Gas, Coke and Chemical Workers' of America,
CIO, met with the undersigned on the morning of January 29, 1943, at which
time they alleged certain anti-union activities on the part of some of our
supervisory staff. The undersigned wishes to state that this company has
every intention'of living up to the Wagner Act and recognizes the rights
of workers to join any union of their choice, as the law provides.
Elwood refused to post the notice or to take any action until he had conferred
with counsel. Elliott and Mullica agreed to this.
On or about February 4, 1943, Mullica and Elliott again called on Elwood and
this time announced that the Union represented a majority of the employees.
They requested Elwood to have a cross-check made of the cards against the pay
roll or to hold a consent election. Elwood refused both requests, whereupon
Mullica and Elliott announced that if he would not consent to either of these
things, he would leave them with nothing to do except to "come in fighting."
They again asked Elwood to post the notice they had suggested on January 29.
He refused, stating that it contained an admission' of having violated the Act.
On or about February 5, Mullica and another representative of the Union again
called at Elwood's office and repeated the requests made at the previous meeting.
These requests were refused, whereupon the petition out of which the election
of April 12, 1943, arose was filed at the office of the Board in New York City on
the following day. At about that time, Mullica had occasion to pass out union
circulars at the, plant as the shifts were changing. The plant is partially
surrounded by a fence. A roadway and sidewalk, usually used by the employees,
extends along an unfenced portion of the 'plant property. Although this road-
way and sidewalk is a part of respondent's property, there is nothing to
indicate it as such. On the occasion mentioned, Mullica was standing on the
sidewalk close to the point where the employees leave the plant proper, prepared
to pass out his circulars. Elwood saw him and asked him whether he had a
permit to distribute circulars. Mullica stated that he did not have and did
not need a permit for that purpose, and referred to^a recent decision of the
United States Supreme Court. Elwood then ordered him off the sidewalk,
Elwood and his general foreman Weldon testified that at the meeting when Mullica
complained about the misconduct of the supervisory employees, he was unable to name
any of the foremen whom he was charging with such conduct. On the other hand Mullica
testified that at that time he named Wallace, Haring, Heydash, and Evans. Although
the testimony does not reflect in what respect Mullica accused these men of interfering
with the Union's activity, his statement that he did name them is credited.
GENERAL CHEMICAL COMPANY 1471
directing him to go up the street in view of the fact that the sidewalk was on
company property. There was an altercation in which a nearby policeman also
joined, the outcome of which is both uncertain and immaterial. When asked
to explain why he had ordered Mullica off the sidewalk, Elwood testified that
he did so merely because he did not want him there.
In early February 1943, James Chieco, an employee in Haring's dock depart-
ment gang, who, at various times, has had about 21/z or 3 years of employment
with the respondent out of the last 4 years, applied to Haring for further
employment and was told to come back in about a week. Chieco returned as
instructed and saw Haring who indicated there was a job available for him.
Before hiring Chieco, however, Haring told him that they were "having a little
trouble about union," that he, Chieco, knew the company had been "keeping this
plant, pretty good," and that they did not want a union, to all of which Chieco
replied "0. K." "Don't worry," "I won't be bothered." Chieco was then sent to
the doctor for his medical examination and on returning to the office met Elwood
who asked him, "Did Jimmy (Haring) explain to you?" When Chieco replied
"Yes," Elwood had no further comment to make.6
On February 18, Rudolph Priehl, a first class cooper rated at $1.10 per hour
was demoted to a No. 3 cooper job paying 96 cents an hour. This demotion
resulted in a committee from the Union consisting of Ernst, Mohjer, Kubica,
Baum, and others calling on Elwood in protest, without result. A few days later
Mullica, upon being advised that the union members were becoming restive and
threatening to strike because of the Priehl incident, as well as because of the
respondent's consistent refusal to agree to a consent election, communicated
with the United States Department of Labor Conciliation Service. Almost im-
mediately Commissioner Cann of that agency made his appearance in Jersey
City and arranged for a conference with Elwood and Mullica at the office of
Elwood's attorney. This conference produced no results with reference to any
of the matters in controversy. By this time the subject of union affiliation had
become the primary topic of conversation in the plant and gave rise to many
heated and vituperative arguments bet« een the union and anti-union employees.
The active union men were well known to all the supervisory staff, not only by
reason of the fact that they openly wore their union buttons and talked in favor
of the Union, but because of their active participation in committee conferences
with Elwood and other representing management.
In March, Florian Zelenka, a brick layer's helper who has been an employee
of the respondent for about 15 years, was engaged in conversation in the riggers'
shanty with Heydash, the chief carpenter, concerning the Union. The gist of
this conversation, so far as Heydash's comments were concerned, was that when
the Union came into the plant, they would go back to the 5-day work week and
no longer have the benefit of 6 days of work with 1 day on time and a half
basis. Two or three days before the election, one of the men in Wallace's depart-
ment told Zelenka that he should be quiet and not talk so much. When Zelenka
asked who had sent that message to him, he was advised that it had come
from Wallace. A little later in the day, Wallace came by where Zelenka was
working and Zelenka asked him about sending the message above mentioned.
Wallace denied he had done so but did engage in some conversation about the
Union in which he not only told Zelenka that if the Union came into the plant
they would go back on the 5-day basis, but also told him, concerning a raise
which Zelenka had recently received, that if he heard any more talk about
G These statements were denied by both Haring and Elwood. Under all the circum-
stances, however, such denials are not credited and it is found that the statements were
made substantially as above quoted. -
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union having been responsible for the raise, he might have to take it back.?
The statements concerning the 5-day week were denied by both Heydash and
Wallace. The testimony reflects, however that the threat to go back to the
5-day week appeared in so many of the conversations with representatives of
management that it takes the form of definite propaganda designed to defeat
the Union. In view of this, credence is given to the testimony of Zelenka, who,
despite his broken English, displayed frankness and intelligence and an apparent
desire to tell the facts as he recalled them. The denials of Heydash and Wallace
are not credited and it is found that the conversations referred to took place
substantially as above set forth.
The employees of the respondent maintain a bowling team which plays in
competition with other teams at what is known as Taylor's Bowling Alley in
or near Edgewater. Elwood, Haring, Ernst, Kubica and others who are involved
in this controversy, are members of the team and as such, congregate at the
bowling alley each Friday night. On one such occasion in March, Elwood and
Ernst entered into a conversation concerning the Union, during the course of which
Elwood asked Ernst why he was "carrying the ball" for the other men and what
he expected to get out of it. Ernst's reply was that he thought the men needed
a union for their protection, that he had seen some superintendents at the plant
who were far from considerate of the men and that while he was not criticizing
Elwood, he felt the men should have protection against the possible changes
which might take place in management. Elwood stated he didn't want to make
Ernst change his mind but that he did not think the company would approve
the CIO coming into the plant ; that if it were any other union, the company
might not oppose it but that they would not approve the CIO, which he described
as an organization made up of Jews and Communists. Elwood denied having
had this conversation with Ernst, but in view of all the circumstances, both
tangible and intangible, which surrounded the Union's activities of January,
February, March and April and the attitude of the representatives of manage-
ment toward it, it is found that the conversation did take place substantially as
related by Ernst.
Joseph Antol, an operator in the platinum recovery department testified that
in the early part of March 1943, his brother who was employed as a hypo operator
in the plant, had been taking a course in draftsmanship to qualify himself for the
job of draftsman in the office. At about that time, Haring approached Joseph
Antol and called his attention to the fact that Antol's brother was talking around
the plant in support of the Union. He cautioned Antol that unless he stopped
his brother from doing this, Elwood would hear of it and his brother would
not get the job he was preparing for. While it was not an issue in the case
and is not here considered in arriving at any of the findings, there is some
testimony to indicate that subsequently, Antol's brother was moved to other
work in the plant and shortly thereafter quit the respondent's employ. Haring
denied this conversation but as between Antol and Haring it is found that Antol's
testimony is creditable and it is accordingly found that such conversation did
in fact take place.
The Union's Petition for Investigation and Certification in what is now cas(
No. R-5025, was filed with the Regional Director at New York City on February
6, 1943. On February 24, an amended petition was filed and on March 17, a
4 Wallace denied having made the statements about the 5-day week, but admitted having
the conversation about the raise. His version of this was that, having given Zelenka a
raise, a number of the other men began clamoring for raises and told him that Zelenka
had attributed his raise to the fact that he belonged to the Union ; that he told Zelenka
that if he heard anything more about the Union having been responsible for the raise, he
might have to take it back.
i
GENERAL CHEMICAL COMPANY 1473
hearing was held. On April 1, 1943, the Board handed down its Decision and
Direction of Election to be held among the members of an appropriate unit con-
sisting of all production and maintenance employees of the respondent at its
Edgewater, New Jersey plant, with certain designated exceptions.
On April 2, Mullica received a copy of this document. He immediately tele-
phoned the Field Examiner for the Board at the New York office who had con-
ducted the preliminary investigation, to inquire when they could expect to have
the election held and was advised that it would be within 10 days. That night,
being Friday, Mullica went to the bowling alley to advise the members of the
union committee, many of whom were on the bowling team, of the Board's
action. This precipitated conversations between Elwood, Haring, Ernst, and Mul-
lica as well as other members of the committee, concerning the best date for
holding the election. Elwood wanted it held on Wednesday, April 14, since that
would be pay day when such men as might be away from the plant would be
bound to come in to get their pay and therefore would have an opportunity to vote.
Mullica and the union committee held out for an earlier date. After the bowling
had ended, some of the men, including Elwood and Haring, repaired to the bar
where they engaged in general conversation on the subject of the Union and the
forthcoming election. As Mullica approached this group, he heard Antol telling
Haring that the latter had made a mistake in talking about the Union to him
and taking it for granted that he, Antol, was opposed to the Union when he
asked him to get his father and his brother to stop talking in favor of it, because,
in fact, he, Antol, was and always had been a good union member. Shortly after
this, Mullica engaged Haring in a conversation about the prospects of the Union
being successful in the election and showed him a bundle of cards, asked him
to count them to satisfy himself of the Union's majority and told him he would
find 137 signed cards, of which 110 represented paid up memberships. Haring
did not inspect the cards or attempt to count them. According to Mullica, a
little later Haring called him to one side together with Ernst and Kubica and
explained that he was working for the company, that it was his job to keep the
Union out, and that he was going to do all in his power to keep the Union out
but if it once came in he would work with the Union men. Also during the
course of the general conversation, when Mullica was talking with Elwood
about the Union in the plant, Elwood voiced the objection to the Union in sub-
stantially these words "if the Union comes in the plant and takes all authority
away\from the superintendent, he is nobody in the plant once the Union comes
in." 8
At a meeting held in the office of the Board in New York City on April 7,
the respondent produced a pay-roll list representing the employees in the appro-
priate unit who, according to the contention of the respondent, would be entitled
to vote in the election. Because the respondent was under contract with the
American Federation of Labor Teamsters Union representing its truck drivers
and chauffeurs, the employees who were in that general classification were
stricken from the list. Certain office employees and the various pushers or chiefs
above described, with the exception of Tucker, the chief of the lead burning
8 Concerning these conversations , Haring admitted that he had a short conversation with
Mullica. He stated , however, that he talked with Mullica alone and not in the hearing
of any other men that he prefaced the conversation by warning Mullica that he was a
100 percent company man and that during the course of this conversation , Mullica showed
him some cards and told him there were 137 signed cards in the lot. He denied , however,
any of the other matters attributed to him by Mullica, as did Elwood . The foregoing
incidents and conversations , as outlined in the text, are corroborated by the testimony of
several of the Union men who were bystanders . The denials of Elwood and Haring are
not credited.
1474 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
department, were originally included, as were a number of the chemists. This
list was studied at length by Elwood, Weldon and the respondent's attorney,
on behalf of the respondent, and by Mullica and several of the members of the
union committee, on behalf of the Union. A number of objections to the list were
voiced by the Union, but after eliminating the truck drivers, chemists, and some
of the clerical workers, the respondent refused to make any further concessions
on the matter of eligibility. After further discussion, the Union agreed to the
list as amended by the above exclusions, but stated, as to one Nicholas Mascio
that they would reserve the right to challenge his vote as not being properly
within the unit. The Union raised no objection to the inclusion of,the chiefs
and Evans, the safety inspector, on the eligibility list after the eliminations
above referred to were agreed to by the respondent. During the 5 or 6 days
preceding the election, interest in the outcome became more pronounced in all
quarters. Notwithstanding the instructions he had previously received from
Elwood, Evans continued his activities against the Union and admitted in his
testimony that on the day before the election he held a conversation with Tom
Borecki, an employee of some 15 years standing, which in substance was about
the same as the one he had held in January with Mohjer. Borecki testified that
this time, the 6-clay week having in the meantime been instituted, Evans stated
that if the Union were to win the election the company would go back to the 5-day
week and the men would lose the benefit of the time and a half for the work done
on Saturdays. In this instance, as in his testimony concerning his conversation
with Mohjer, Evans was unable to remember whether he had made such a state-
ment. It is found however, that the statement was made to Borecki as above,
set forth on the eve of the election of April 12, 1943.
In these days, the respondent evidenced much more than a passive interest
in the election. It assumed the position that the election was a contest between
the Union and the company and, conducted itself accordingly. Evans freely ad-
mitted his participation in the pre-election activities. On the date of the elec-
tion Chieco was in the hospital suffering from an injury he had received at the
plant in February. On that day Elwood had occasion to be at the hospital for
a personal examination and while there took occasion to call on Chieco in com-
pany with the company's doctor. While at Chieco's bedside, Elwood noticed
an envelope laying on the table which he recognized as one containing a ballot
for use in the election. He told Chieco that it should have been marked and
sent in. Chieco expressed a desire to vote and asked Elwood if he would take
the ballot in and deliver it at the polls. Elwood agreed to do this but told Chieco
that he and the doctor would have to go outside or move to another part of the
room where they could not see him as he'marked his ballot. This was done and
Chieco accordingly marked his ballot without being observed by Elwood and
without any further comment from Elwood as to his voting. The ballot was then
sealed by Chieco and handed to Elwood who in turn handed it to the woman
who was driving his car, with instructions to deliver it at the polling place. The
ballot was duly,delivered and counted."
9 While the foregoing incident reflects no impropriety on the part of Elwood , it has a
material bearing on the over-all picture when considered, in the light of tlwood 's previous
statements on the same subject. The foregoing reflects Chieco's testimony. , Elwood's tes-
timony is in substantial conformity to Chieco 's. However , shortly after the incident'
occurred , Elwood made a comprehensive statement on this and other subjects related to
this controversy, to the Board's Field Examiner. This statement was reduced to writing
and submitted to Elwood for signatuie At that time , Elwood's recital of the Chieco inci-
dent was wholly different from the foregoing On receipt of the statement from the Field
Examiner , Elwood found it did , not contain what he conceived to be a correct statement of
GENERAL CHEMICAL COMPANY 1475
Among the employees whose names were on the list of eligibles, was one
Canfield who had been employed by the respondent to drive its small bus or
station wagon on errands and other company business. It will be recalled that
all parties had agreed that the members of the American Federation of Labor who
were represented by the Teamsters Union would not be eligible to vote. A day
or two prior to the election, Mullica inquired of Canfield whether he carried a
card in the Teamsters Union and was told that he did carry such card and
that it was kept paid up. When Canfield appeared to vote, his vote was
challenged on the ground that he was a member of the Teamsters Union with
whom the company had a contract and therefore was not eligible to vote 10
Shortly after Caufield's vote was challenged, he advised Elwood of this fact.
Elwood immediately went to, the polling place, called out the company's observer
and verified the report that Caufield's vote had been challenged, whereupon he
instructed his observer to challenge the vote of another person then, employed
in the lead burning shop, on the ground that he, too, carried a card in a union
affiliated with the American Federation of Labor. It developed, however, that
the party referred to had previously voted so that Elwood's instructions could
not be carried out 11
Just prior to the election, the Union committee of which Ernst was a member,
called on Elwood to discuss the eligibility of one of the employees. After the
matter had been disposed of, Elwood said in substance, "if the Union loses the
election, I want all this Union business stopped, and I have ways of stopping
it, such as your Saturday overtime." 1' '
It is found from the foregoing conduct Hof the representatives of management
at the Edgewater plant, that the respondent has interfered with, coerced and
restrained its employees in the exercise of the rights guaranteed to them in
Section 7 of the Act.
In connection with the allegation of interference with the employees in general
and especially as to their voting in the election, counsel for the Board laid much
stress on a visit which Elwood paid to the "farm" 2 or 3 days prior to the election.
The farm is the name given to a plot of ground some 10 miles from the plant
which is used for dumping certain waste products. The number of men working
on the farm varies from one to three depending upon the quantity of waste
products being produced. In April 1943, there were three men so engaged,
one who was generally in charge and the other two serving as common laborers.
The two laborers referred to were respectively, Mike Strubbe and Frank Pana
both of whom are Italians and almost wholly unable to speak the English lan-
el
the facts. He accordingly rewrote the document, signed it and sent it to the Field Exam-
iner. Pertaining to this matter, Elwood's statement recites :
I believe Chieco's ballot was brought to the plant by Miss Holmes. A man named
Loftenfleld was hurt on April 12, 1943, and was driven to North Hudson Hospital in
the station wagon driven by Miss Holmes, the new driver I accompanied them to
have a personal examination made. On that occasion, in company with Loftenfleld,
Miss Holmes and Dr Evans, I visited Chieco briefly. Loftenfleld and Miss Holmes
remained with Chieco for a few minutes after the Doctor and I left the bedside. She
later told me that she had Chieco's ballot but it was not delivered in my presence.
Elwood's only explanation of this variation was that, when he wrote the statement, he
did not have the facts clearly in mind and that his recollection had been refreshed after
hearing Chieco's testimony.
10 When Mascio who has heretofore been referred to, appeared to vote, be was permitted
to vote without challenge.
n This incident was admitted by Buckhotz, the observer, and by Elwood, to have occurred
as above set out.
u Elwood denied this statement. It is found, however, that, in substance, it was made
as quoted.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
guage understandably. Mullica and Edwald Sandner, present Regional Director
for C. I. O. in New Jersey, testified that both Strubbe and Pana attended a,
meeting which was held by the Union on the Sunday preceding the election and
that at such meeting, Strubbe announced that Elwood had visited the farm 2 or 3
days previous, had held an extended conversation with him principally bearing
upon the character of treatment the company had accorded him and his length
of service with the company, finally concluding with an instruction to vote
against the Union at the forthcoming election, for which purpose, he, Elwood, was
said to have used a sample ballot and pointed to the "No" square in which
Strubbe was to make his mark. These same witnesses stated that Pana was
present and either nodded or otherwise confirmed Strubbe's statements. Al.
least two other witnesses produced by the Board confirmed this testimony in sub-
stance, with the exception that their testimony was that they heard Strubbe make
these remarks in conversations either with them or, with other persons which
they overheard. When Strubbe and Pana were called as witnesses, they were
wholly unable to testify or make an understandable statement without the usF
of an interpreter. On being questioned through the interpreter, Strubbe testified
that Elwood had visited the farm 2 or 3 days prior to the election ; that he had
no conversation with Elwood at the time, and that the only thing Elwood did,
so far as he was concerned, was to wave to him from a distance, shout "hello"
and then go on. He further testified that at the time Pana was not at `work
on the farm but was on vacation. Concerning the Union meeting on the day
preceeding the election, Strubbe testified that he attended the meeting but that
he made no speech and that he told no one that Elwood had had any of the con-
versations with him which were testified to by the other witnesses. Pana, likewise
through an interpreter, testified that he was at the farm at the time Elwood
visited it, that Elwood had merely shouted a greeting to him, that he had ro
conversation with Elwood and that he did not attend the Union meeting on the
day preceding the election. Elwood testified that he visited the farm on wholly
legitimate business in connection with the water supply which was obtained
from a neighboring farmer, that be did not speak to either Strubbe or Pana,
although both were there, other than to shout a greeting to them and then go
about his business. Elwood stated that he never talked with either of these two
men, for the reason that he could not undertsand them nor could they understand
him. With this conflict in the evidence coming from witnesses who otherwise
appeared to be credible in a large degree, the Trial Examiner called four em-
ployees who had attended the meeting and knew Strubbe, as his own witnesses.
They were placed upon the witness stand without any knowledge as to the
facts concerning which they were to be called upon to testify. One stated be
had attended the, meeting but left early and did not see Strubbe. Another
testified that he does not recall having seen Strubbe ; a third testified that
Strubbe had been drinking and that he was feeling "pretty good" ; that he talked
in a loud voice and walked around the meeting hall a good deal but that he did
not hear him make any statement concerning Elwood. The fourth testified
that he not only saw Strubbe but sat along side him during the meeting and
talked with him at length on various subjects ; that during the meeting the
forthcoming election was the only topic under consideration and that sample
ballots were passed out to everyone present, but that during his entire conver-
sation with Strubbe, no mention was made of Elwood.1' This incident is dwelt
upon at length because counsel for the Board indicated in the early part of the
hearing, that some of the Board witnesses had been tampered with, and their
13 This witness is of Czechoslovakian birth and stated that while he and Strubbe do not
speak the same language, they can understand each other.
GENERAL CHEMICAL COMPANY 1477
testimony affected thereby. That is a serious charge and obviously referred to
Strubbe and Pana, but it is not in issue here except as it might affect the findings
on the objections to the election and in some degree, on the matter of interference,
restraint and coercion. For the purpose of this report, however, it is neither
feasible nor necessary, in the light of the record, to make a specific finding on
that score. The language difficulty experienced by both Strubble and Pana
may have resulted in their being misunderstood by the witnesses. However,
it is highly improbable that either of these men could have made a declaration
at the meeting preceding the election, as extensive as the one attributed to
them by the Board's witnesses, which would have been understandable to those
present "
B. The alleged discriminations
The amended complaint alleges that the respondent discriminatorily demoted
Rudolph Priehl, that it assigned Arthur Ernst to less desirable work and that
it reduced the rate of pay of Joseph Mohjer and assigned him to more arduous
and less agreeable work, all because of the activities of the respective named
employees on behalf of the Union.
The work in practically all the departments of the respondent's plant is
fluctuating in nature with the result that employees frequently are, moved
from one type of work to another and from one department to another in order
to accommodate the requirements of the various operations and departments.
Elwood stated that it is the general rule when a man is temporarily transferred
from his regular employment to a lower rated job within the same department
he is carried on the pay roll at his original or higher rate of pay but that
if a man is transferred within his department to a higher rated job, he is
carried at the rate of pay indicated by the higher paid job which he is per-
forming. The rule was further stated that if a man is to be transferred out
of his department and to a job carrying a lower rate of pay, he is given 2
days notice of the forthcoming transfer and when transferred after such a
notice, is immediately placed on the pay roll in the new department at the
rate of pay called for by the job he is performing. He further stated that
where a man is transferred without notice, he is carried in the,new department
at his original rate of pay for 2 days and then is reduced to the lower rate
called for by the job he is performing. Such records as were made available
during the course of the hearing indicate that while this rule may exist, it
does not appear to have been closely followed. The work records of some of
the employees which are in evidence indicate that they fluctuated from one
rate to another within the same department on numerous occasions during
their employment, while on the other hand, others moved from department to
department so far as their actual occupation is concerned, and, regardless of
the type of work they did, were maintained on the pay roll at a constant
wage figure. The rule appears to have been one of convenience that was applied
as to some and ignored as to others.
Rudolph Priehl is primarily a cooper. He was first employed by the re-
spondent in December 1936. After 2 weeks he was placed in the cooper shop
14 There is nothing in the record nor was there anything in the demeanor of any of the
witnesses to indicate that any of those who testified concerning what they heard Strubbe
say could either speak or understand the Italian language. It is therefore presumed that
their testimony referred to remarks alleged to have been made by Strubbe in English.
Under all the circumstances, the Board has failed to prove by substantial evidence that
Elwood did in fact talk with Strubbe and Pana at the time alleged a few days prior to
the election. Because of this failure of proof and the notable conflict In the testimony
and all the circumstances surrounding the incident, no finding is made In this regard, since
it would not , in the last analysis change or affect the ultimate conclusions herein made.
1478 DECISIONS OF NATIONAL LABOR R ;E'LAfP 'IONS BOARD
and remained there until July 30 , 1937 .when he was temporarily assigned to a
laboring job at a reduction in pay of about 19 cents per hour. In October
1937 , he again went to the cooper shop at what appears to be first class coopers'
pay, stayed about 5 weeks and was again put on a laboring job at 19 cents
reduction . It is conceded that Priehl worked as a cooper when there was such
work to be done and that when not so employed , he took miscellaneous other
jobs at varying pay rates which ranged from dock labor at 63 cents to cooper
at 92 cents . In May 1941, the cooper first class rate was raised to 97 cents
and Priehl was given the benefit of it. In October 1941 , it was raised to $1.04
and again Priehl benefited . In February 1942, it was raised to $1.10 which' is
the present wage of a first class cooper . In February 1942, Priehl was taken
off coopering and performed miscellaneous laboring and manufacturing opera-
tions at from 88 to 92 cents per hour. In December 1942, he returned to the
cooperage shop but did the work of a helper or number 3 cooper , paraffining
barrels at 96 cents. On January 20, 1943, the respondent having received an
order which required the services of all available coopers to prepare barrels in
which to make shipment , Priehl was again put to work as a first class cooper
and on February 18, 1943, at the completion of the order , was returned to
paraffining at 96 cents . Although the cooper shop has consistently used an
additional cooper since February 18, 1943, Priehl 's employment has remained
the same except for about 3, weeks in July 1943, when he did some labor work
at 88 cents.
In the almost 7 years that Priehl has been an employee of the -respondent
his regular work has been in the cooper shop, doing the work of a first class
cooper at the pay of a first class cooper which , since 1937 has been raised by
gradual increases from 82 cents per hour to the present rate of $1 .10 per hour.
There are three classes of coopers in respondent 's shop. The first class man
builds and repairs barrels. The second class man or No. 2 cooper works on
repair of barrels but does not quite equal the first class cooper: The third class
man or No. 3 cooper paints and paraffines the barrels and otherwise does only
a handling job. The helper makes himself generally useful in the shop where
special skill is not required . When work is slack , men are taken from the
cooper shop and placed on miscellaneous jobs in the plant. Priehl's work
record shows that each year he has spent a total of several months at such
miscellaneous jobs in lower pay brackets and at the lower pay rate. In Septem-
ber 1942, after about 7 months at miscellaneous low pay jobs, Priehl was re-
turned to the cooper shop and put to work paraffining . There is no evidence
that there was a place then open for him as a cooper . As previously stated,
on January 20, 1943 , he went to the bench as a No. 1 cooper at $1.10 per hour.
A. Galla, a cooper helper who had been employed as such in the cooper shop
almost continuously since March 1936 , was put to work as a No. 2 cooper at
$1.00 per hour . On February 18, 1943, when the rush order was completed,
Priehl was demoted to No. 3 cooper at 96 cents per hour and directed by Nayman,
the leaderman in the coopershop to resume his paraffining job. Galla was re-
tained and on May 31 , 1943, was promoted to No. 1 cooper at which he was
still working at the time of the hearing.
Priehl is a member of the Union and was such while he was working as a
No. 1 cooper in February of 1943. During that period, Nayman addressed some
general remarks to all the other coopers who were present concerning the
Union and expressed the opinion that if the Union came into the shop they
would go back to the 5-day week. At this point , Priehl told the other men not
to listen to Nayman , and that the Union was a good thing. Two days later he
was taken off the coopers bench and put back to his former job of paraffining.
He complained to Nayman about this demotion and, in the course of the con-
GENERAL CHEMICAL COMPANY 1470
versation , was told that Haring, who is foreman of the cooper shop, had criti-
cized Nayman for having reported to him that none of the coopers belonged to
the Union whereas Haring had learned that Priehl was a member. The day
that Priehl resumed paraffining , he asked Haring why he had been taken off the
cooperage work and told Haring he believed it was because he belonged to the
Union. Haring protested that that had nothing to do with it and that he had
taken Priehl off and left Galla at the work because he wanted to break him in.
Galla had about 3 years plant seniority over Priehl and both had started work
in the cooper shop in 1936 Galla started in March 1936 at 48 cents . Priehl
started in December 1936 at 64 cents. Up to January 20 , 1943, although Galla
had received 96 cents as a helper, he had never had even a No. 3 rating. On
that date , however, he was employed at $1 per hour and rated on his employ-'
ment record as No. 2 cooper . Haring and Elwood testified that Galin actually
was employed , as a No. 1 cooper and normally would have received a wage rate
of $1.10 per hour beginning January 20 , except for the fact that he did not have
his own tools , and was compelled to use the company 's tools, and that it is cus-
tomary to cut the wages of a cooper by 10 cents an hour when he does not
furnish his own tools . There is no history to support this . Elwood eventually
testified that he knew of no such custom and that the case of Galla was the
only one he had ever heard of. In the face of such facts and Galla 's rating
as a No. 2 cooper on the respondent 's records , these statements are not credited.
It is found that up to May 31 , 1943, Galla never was rated or regarded as more
than a No. 2 cooper but that on January 20, 1943, and for a long time prior
thereto, Priehl was rated and regarded as a No. 1 cooper . The explanation
given by both Haring and Elwood of the demotion of Priehl and the retention
of Galla was that they were both of about equal ability on February 18, 1943,
when it became necessary to take some , of the men off the work, that Galla
had more seniority than Priehl, and that the selection was made on the basis
of seniority alone. This explanation , however, does not coincide with the facts.
Galla did have seniority in both the plant and department , but the two men
were not in the same grade .. Under such circumstances seniority is hardly a
controlling factor. Priehl 's work had always been satisfactory. He was a
member of the Union and openly advocated it. Galla was not a Union man.
Although Nayman was called the foreman of the cooper shop by some of the
employees he received only No. 1 cooper's pay of $1.10 per hour and was no
more than a leading man working closely under Haring's supervision. It 'was
Haring's testimony that he" ( Haring ) and he only , gave orders in the cooper
shop. From his conversation with Priehl on the day of his demotion, it is
obvious that the change was made on his orders . Not only did Haring know
before Priehl was demoted that he was the only Union man in the cooperage
shop but he took occasion to criticize Nayman for not telling him about it.
The explanation offered concerning Priehl 's demotion on the basis of seniority
alone, is not convincing. In the light of all the circumstances , it is found that
Priehl was selected for demotion from No. 1 cooper to No. 3 cooper , at a reduction
in pay from $1.10 per hour to 96 cents per hour instead of Galla who was re-
tained as No. 2 cooper and later promoted to No. 1 cooper, because of Priehi's
membership in and support of the Union, and to discourage membership in the
Union.
Arthur Ernst was first employed by the respondent in 1925 and from then until
September 1929 served as a rigger , pipefitter helper, store house helper, and
machinists ' helper until April 1930 when he was laid off. He was rehired in
September 1937 and worked at various jobs, principally on construction work
in the mechanical department , until October 1941 when he was placed in the
lead burning department as a helper . He remained in that department until
1480 DECISIONS OF NATIONAL LABOR RELATIONG, BOARD
the latter part of March 1943 when he was transferred to the rigging depart-
ment for work on the demolition and new construction heretofore referred to.
In the lead shop Ernst's pay was raised to 94 cents per hour. On January 25,
1943, when Elwood returned from his temporary duty in Delaware, it was
determined that Ernst's job in the lead shop as well as a number of other
jobs throughout the plant, could adequately be performed by women, thus releas-
ing the men for more arduous work for which they were qualified. It was
then decided to transfer Ernst from helper in the lead shop to the rigging
department in which he was to have and has the classification of mechanical
helper, at the rate of $1 an hour. Because of lack of necessary equipment, a
transfer could not immediately be made but nevertheless Ernst was advised.by
both Elwood and Wallace, who had general supervision of the lead shop, that
his rate had been raised to $1 an hour. He was not advised, however, of the
pending transfer. In the latter part of March or about April 1, 1943, when the
necessary equipment to carry out the new construction program was received
and set up, Ernst was transferred to the rigging crew and two women were
employed for the work in the lead shop. While -it was well known that Ernst
was an active leader in Union affairs, there is nothing to indicate that his trans-
fer from the lead shop to the rigging crew was discriminatory. By experience
he could qualify to work in the rigging crew. It is well known that throughout
industry women have been hired to do certain jobs normally performed by men
in order to relieve the men for more arduous tasks. That is what took place
in this instance. It is found that no discrimination was practiced with reference
to Ernst in the change of his job which has been complained of here.
On June 24, 1943, Ernst filed a formal written grievance requesting his return
to the lead shop on the basis of seniority over the women who were then being
taught lead burning. A meeting was held with Elwood and others representing
management. There is no serious controversy as to what transpired. He had
been raised from 94 cents to $1 per hour when it was definitely decided to put
him in the rigging crew. Although he was not advised of the pending transfer
when he received his raise, the records of the respondent reflect that his transfer
to mechanical helper was the basis of the raise. At the grievance meeting, Ernst
was told that there was then no place for him in the lead shop but when a
vacancy occurred, they would return him to the lead shop at his helpers' rate of
94 cents per hour. They also cautioned him that if he left his job as mechanical
helper in the rigging crew at $1 per hour and was replaced by some man with
more seniority, he could not expect to go back to his mechanical helper job if
things should not turn out right in the lead shop. This was a normal action
for the respondent to take under the circumstances and does not infringe on any
rights guaranteed in Section 7 of the Act.
In none of the foregoing acts with reference to Ernst, has respondent dis-
criminated against him because of his membersbil, in or activity on behalf of
the Union.
Joseph Mohjer was first employed by the respondent in October 1936 as a
laborer. He was laid off from time to time because of lack of work but never-
theless advanced in the plant until in 1942 he had become an operator, manu-
facturing iron free aluminum sulphate, commonly known as alum. In Novem-
ber 1942, at the request of Elwood, Mohjer, who was then employed elsewhere,
called at, the office to see Elwood about returning to work. They discussed
rates of pay and Mohjer returned to work with the understanding that he would
not be paid less than $1 per hour and $40 per week. At this time the 40-hour
week was still in effect and apparently nothing was said about a possible in-
crease of the workweek by adding Saturday. The manufacture of alum is
not a constant operation , but, from the beginning of his employment in Novem-
GENERAL CHEMICAL COMPANY _ 1481
her 1942 up to about February 20, 1943, he was paid $1 .06 per hour regardless of
what he did, although his employment during this period covered packaging
chemicals which is a laborer 's job, manufacturing alum, packing alum , grinding
nitre cake , unloading nitre cake and other miscellaneous jobs. It was not until
the week ending February 20, 1943, that the respondent made any differential in
the pay rate received by Mohjer. In that week they assigned him to unloading
nitre cake and packaging glaubers salt , and reduced his pay from $1.06 to 92 cents
per hour . From that time up to the present his pay rate has fluctuated almost
daily as the character of his work performed each day changed . In this man-
ner, they would pay him $1 .06 for manufacturing alum, but only 92 cents when
he was engaged at the work which falls into the laborer classification , for which
he previously had been paid his regular going rate of $1 .06. At the time this
change in pay policy with reference to Mohjer occurred , the Union activities
were at their height in the plant , and Mohjer was well known as a Union man and
an active participant on the union committees then coming in contact with
management . When Mohjer was first subjected to this pay decrease , he immedi-
ately complained to Elwood , stated that other men working with him on the
same work were still receiving their original higher pay rate and pointed to
the cases of one McCarney , normally an employee of the cooper shop, Martin
Vach, a sort of handyman operator and J . Cervenka , a grinder who normally
worked with Mohjer in the alum plant . Elwood called attention to the fact
that he had promised Mohjer not less than $40 per week and pointed out that he
was still getting that much, but he failed to account for the fact that he only
got it because of the added working time on Saturdays . He also explained
that McCarney and Vach were old time employees who were handy men all over
the plant and were kept on at a regular rate because of this, but he did say
that if Cervenka 's pay had not been adjusted downward , it would be. There
is no record of this having ever been done. Such exhibits as are in evidence
disclose a continuing rate to Cervenka of $1.06 per hour up to May. They show
nothing beyond that date. McCarney 's work record discloses that throughout
the period from November 1942 to the latter part of May 1943, he has worked
in numerous departments including the unloading of nitre cake, the packaging
of glaubers salt, the piling of nitre cake , and -various other jobs in no way re-
lated to coopering , although it was the testimony of Elwood that primarily
McCarney 's job in the various packaging operations is to act as a cooper by
putting the heads in the barrels after they are filled . While this may be true
with reference to some of the packaging , it cannot be reconciled with the job of
grinding nitre cake or unloading nitre cake or other purely handling jobs. Not-
withstanding, during the entire period , McCarney maintained his constant
rate of $1 per hour regardless of what he was doing . In the case of, Vach,
his work history reflects that he enjoyed a constant pay rate of $1.06 regardless
of what he did and that he spent extended periods engaged in the various depart-
ments performing ordinary laborer work such as the packaging of glaubers salt
and other similar jobs. For these, his pay of $1.06 per hour was continued
while Mohjer was reduced to 92 cents when he performed the same duty. The
same was true in the case of Cervenka , who also devoted a very substantial por-
tion of his time to ordinary laborer operations in the various other departments,
similar to the work done by Mobjer . Regardless of this, neither McCarney,
Vach or Cervenka , whose current work histories parallel that of Mohjer, were
subjected , to any reduction in pay, while Mohjer , beginning in the middle of
February 1943 , was so reduced . Elwood attempted to justify this, by stating
that the three other men were old employees and that while they physically
went to work in other ddllartments , actually they were retained for technical
1482 DECISIONS OF NATIONAL LABOR R&LATIOtNIS BOARD
reasons in their original departments . - This statement is not reflected in the
respondent 's records . It is a clear case of discrimination as between these
men for which no plausible reason has been given . There appears to have
been no criticism of Mohjer 's work and , with the change in policy toward Mohjer
coming as it did in the middle of the Union activities with - which he was promi-
nently identified and in the light of the other incidents which have been pre-
viously reported herein, it is found that the respondent 's discriminatory treatment
of Mohjer was brought about by reason of his membership in and support of the
Union and to discourage membership in the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring in
connection with the operations of the respondent described in Section I above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it- cease and desist therefrom and that it
take certain affirmative action designed to effectuate the policies of the Act. It
has been found that Rudolph Priehl and Joseph Mohjer have been discriminated
against by the respondent as to certain conditions pertaining to their pay and
other conditions of employment . It will be recommended as to Rudolph Priehl,
that he be offered reinstatement to his employment as first class cooper on such
occasion as there is employment for a first class cooper in the cooper shop of
the respondent , in advance of any person or persons not rated and carried as
a first class cooper on the rolls of the respondent prior to January 20, 1943. As
to Joseph Mohjer , it will be recommended that cognizance be taken of his normal
rating as an operator , at the going operator 's pay which in February 1943, was
$1.06 per hour, and that in the future , when he is transferred to work other
than that of an operator , he be accorded the same treatment as to rates of pay,
as is accorded to men standing in the general position of McCarney , Vach, and
Cervenka when they are transferred from their normal employment as operators,
coopers or grinders , to perform other jobs normally classed at a lower rate of
pay. It will also be recommended that the respondent make the said Rudolph
Priehl and Joseph Mohjer whole for any loss of pay they respectively may have
suffered by reason of the respondent 's discrimination in,their respective rates
of pay and other conditions of employment, by the payment to them, respectively,
of sums of money equal to the amount each normally would have earned as
wages had the discrimination against them not occurred , less the amount actually
earned by them from the time of the first discrimination in each instance, to
the time when they shall be reinstated to their original status without loss of
seniority or other privileges.
It will further be recommended that the complaint be dismissed insofar as
it pertains to the alleged discrimination against Arthur Ernst.
On the basis of the above findings of fact and upon the entire record in the
case the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Gas , Coke, and Chemical Workers of America, affiliated with the
Congress of Industrial Organizations is a labor organization within the mean-
ing of Section 2 (5) of the Act.
GENERAL CHEMICAL COMPANY 1483
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section,8 (1)
of the Act.
3. By discriminating in regard to the hire and tenure of employment and
the conditions of pay and employment of Rudolph Priehl and Joseph Mohjer,
thereby discouraging membership in United Gas, Coke, End Chemical Workers
of America , affiliated with the Congress of Industrial Organizations , the respond-
ent has engaged in and is engaging in unfair labor practices within the meaning
,of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and ( 7) of the Act.
5. By changing the type of employment of Arthur Ernst as alleged in the
complaint and as is found above, the respondent has engaged in no unfair, labor
practice within the meaning of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent , General Chemical Company, and its
officers, agents , representatives and assigns , shall :
1. Cease and desist from:
(a) Discouraging membership in United Gas, Coke, and Chemical Workers of
America, affiliated with the Congress of Industrial Organizations or any other
labor organization of its employees by discriminating against such employees in
any manner in regard to their hire, pay, tenure of employment, or any term or
condition of employment.
(b) In any other manner interfering with, restraining , or coercing its em-
ployees in the exercise of the rights to self organization , to form, join , or assist
labor organizations, to bargain collectively through representatives of their
own choosing , and to engage in concerted activities for the purpose of collective
bargaining or any other mutual aid or protection , as guaranteed in Section 7 of
.he Act.
2. Take the following affirmative action which will effectuate the policies of
he Act :
(a) Offer to Rudolph Priehl , without prejudice to his seniority and other
rights and privileges , full and immediate reinstatement to his position as first
class cooper , for employment as such on those occasions where there is employ-
ment for a first class cooper at its Edgewater plant in addition to those who were
regularly so employed prior to January 20 , 1943 , in advance of employment of any
person or persons not rated and carried by the respondent as a first class cooper
on its pay rolls prior to January 20, 1943, dismissing or displacing , if necessary,
any person presently employed as a first class cooper who was not so employed
by the respondent prior to January 20, 1943.
(b) Offer to Joseph Mobjer full and immediate reinstatement to his normal
rating as operator at the going pay of an operator , and, in the future, when the
said Mohjer may be transferred or assigned to work other than that of an oper-
ator, accord him the same treatment as to rates of pay for such other work as
may then be accorded to employees standing in the same general positions that
are and have been occupied for the past year by McCarney , Vach and Cervenka
when they have been or may be transferred or assigned from their normal em-
ployment as operators , coopers, grinders , etc. to perform other jobs normally
classed at lower rates of pay.
1484 DEC'ISION'S OF NATIONAL LABOR RELATIONS BOARD
(c) Make the said Rudolph Priehl and Joseph Mohjer whole for any loss, they
respectively may have suffered as a result of the respondent's discrimination in
regard to their respective rates of pay and other conditions of employment, by
the, payment to them respectively of a sum of money equal to the amount each
normally would have earned as wages had the discrimination against them not
occurred, less the amount actually earned by them in the employ of the respond-
ent, from the time of the first discrimination in each instance to the time when
they shall be reinstated to their original status, but without taking credit for any
amount earned by either of them in excess of their normal rates of pay by reason
of the performance by them or either of them of jobs carrying a rate of pay in
excess of such normal rates ordinarily earned by the said Priehl and Mohjer ;
(d) Post immediately in conspicuous places throughout the respondent's plant
at Edgewater, New Jersey and maintain for a period of sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1) that the re-
spondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that
the respondent will take the affirmative action set forth in paragraph 2 (a), (b),
and (c) of these recommendations; and (3), that the respondent's employees are
free' to become and remain members of the United Gas, Coke, and Chemical
Workers of America, affiliated with the Congress of Industrial Organizations or
any other labor organization and that the respondent will not discriminate
against any of its employees because of membership in or activity on behalf of
this organization or any other labor organization;
(e) Notify the Regional Director for the Second Region in writing within
ten (10) clays from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the re-
ceipt of this Intermediate Report the respondent notifies the Regional Director in
writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is also recommended that the complaint herein be dismissed insofar as it
contains any allegation that the respondent has engaged in unfair labor prac-
tices in respect to Arthur Ernst.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof. As
further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of the order transferring the case to the
Board.
R. N. DENHAM,
Trial Ea'aminer.
Dated September 18, 1943. l
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