Insular Chemical Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1960

128 N.L.R.B. 93 (N.L.R.B. 1960)

INSULAR CHEMICAL CORPORATION, ETC. 93
Insular Chemical Corporation and Rubber Corporation of
America ( Insular Division ) and Local 14-149, Oil, Chemical,
and Atomic Workers International Union . Cases Nos. 92-CA-
6,050 and 2-CA-6717. July 19, 1960
DECISION AND ORDER
On February 17, 1960, Trial Examiner Louis Libbin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief, and the Respondent
and the Charging Party also filed briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the excep-
tions and the briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
[The Board dismissed the complaint.]
1 We reject the General Counsel's argument in his brief that the Trial Examiner's re-
liance on Desilu Productions, Inc., 106 NLRB 1'79, and The Metal Products Corpora-
tion, 119 NLRB 659, is misplaced in the light of such later cases as Georgia Kraft
Company, 120 NLRB 806, and Union Manufacturing Company, 123 NLRB 1633 Although
the Board no longer permits allegations of a supervisor's solicitation of interest to be
litigated in a representation proceeding, this policy in no way precludes the Board from
properly considering in an unfair labor practice proceeding the validity of cards obtained
by a supervisor's solicitation for the purpose of determining a union's majority status.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Local 14-149, Oil, Chemical and Atomic Workers Inter-
national Union , herein called the Union, the General Counsel of the National Labor
Relations Board , by the Regional Director for the Second Region (New York, New
York), issued two complaints in the above cases, which were subsequently consoli-
dated for the purposes of hearing ,' against Insular Chemical Corporation, New York,
New York, herein referred to as Insular or Respondent Insular, and against Rubber
Corporation of America ( Insular Division), New York, New York , herein referred to
as Rubber Corporation or Respondent Rubber Corporation, and collectively referred
to as Respondents . With respect to the unfair labor practices , the complaints allege,
1 In Case No . 2-CA-6250, a complaint was issued on March 31 , 1959, and an amended
complaint was issued on July 13, 1959 . In Case No . 2-CA-6717, the complaint was
issued on August 20 , 1959 The order consolidating the cases for purpose of hearing
,was issued on August 25, 1959.
128 NLRB No. 20.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in substance, that: (1) Respondents at all times on and after July 29, 1958, refused to
recognize and bargain with the Union which represented a majority of the employees
of Insular in a specified appropriate unit; (2) Respondents engaged in specified acts
of interference, restraint, and coercion through designated agents; (3) from August
7, 1958, until February 24, 1959, the employees of Insular ceased work concertedly
and engaged in a strike which was caused and prolonged by Respondents' unlawful
conduct in refusing to bargain with the Union and in engaging in acts of interference,
restraint, and coercion; (4) since February 24, 1959, Respondents have failed and
refused to reinstate the strikers upon their unconditional request; and (5) by the
foregoing conduct Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act.
In its duly filed answers, Respondents deny the unfair labor practice allegations,
and affirmatively allege, in substance, that (1) the refusal to recognize and deal
with the Union was not unlawful because Respondents had a good faith doubt as
to the Union's majority status and the appropriateness of the unit and because the
Union did not in fact represent a majority of the employees in an appropriate unit;
(2) the strike was caused and prolonged solely by Respondents' unlawful refusal
to bargain and hence was not an unfair labor practice strike; (3) the strikers
engaged in unlawful and unprotected activities during the strike; and (4) that prior
to the strikers' request for reinstatement, they had been lawfully replaced and the
jobs of five strikers had been eliminated for economic reasons.
Pursuant to due notice, a hearing was held on November 9 to 18, 1959, inclusive,
at New York, New York. All parties were represented at the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to present oral 'argument at the close of the hearing,
and thereafter to file briefs as well as proposed findings of fact and conclusions of
law. After the close of the hearing, the Respondents filed a brief which I have fully
considered. Respondents' motion to dismiss the complaint, made at the conclusion
of the hearing and upon which I reserved ruling, is hereby granted in 'accordance
with the findings and conclusions made below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Prior to January 1, 1959, Respondents have been separate corporations duly
organized and existing by virtue of the laws of the State of New York. In February
1958, Respondent Rubber Corporation ,- which at that time owned 50 percent of
the stock of Respondent . Insular, acquired the balance of the Insular stock. About
January 1, 1959, Respondents were merged and consolidated into Respondent Insular,
which then became known as Respondent Rubber Corporation of America.
At all times material herein , Respondents have maintained offices, plants, and
places of business at New South Road, Hicksville , New York, and have been con-
tinuously engaged at said places in the manufacture, sale, and distribution of poly-
vinyl chloride , plastic film and sheeting , latex compounds , plasticizers , and related
products. During the year ending December 31, 1958, each of the Respondents
purchased and received at its plants materials , valued in excess of $50 ,000, from
points located outside the State of New York; during the same period , each of the
Respondents manufactured , sold, and shipped from its plants materials , valued in
excess of $50,000, to locations outside the State of New York.
Upon the above undisputed facts, I find, as Respondents admit, that Respondents
are engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the record shows, and I find, that Local 14-149, Oil,
Chemical and Atomic Workers International Union, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the Act.
'1I. THE ALLEGED UNFAIR LABOR PRACTICES
By July 1958, the Union had in its possession authorization cards signed by a
majority of the employees of Respondent Insular, and at the end of July the Union
requested recognition and a meeting. At a meeting held on August 6, 1958, Re-
spondent Insular refused to recognize the Union unless it first demonstrated its
majority in a Board-conducted election, to which Respondent was willing to consent.
The next day the employees struck and remained on strike until February 24, 1959,
INSULAR CHEMICAL CORPORATION, ETC. 95
when an unconditional request for reinstatement was made on their behalf by the
Union's attorney. The Respondent refused to reinstate any of the strikers on the
ground that their jobs had been filled or eliminated and that, in any event, the
alleged strikers had engaged in violence and other misconduct during the strike.
The principal issues raised by the pleadings and litigated at the hearing are (1)
whether Respondent Insular's conduct constituted an unlawful refusal to bargain
violative of Section 8 (a)(5) of the Act; (2) whether the strike was caused and/or
prolonged by any unfair labor practices; and (3) whether the refusal to reinstate
the strikers was an unfair labor practice violative of Section 8(a)(3) of the Act.
A determination of these issues depends on a resolution of a number of subsidiary
issues which will be discussed under appropriate headings.
A. The alleged refusal to bargain
Respondents contend that Insular's refusal to recognize the Union unless it first
demonstrated its majority in a Board-conducted election was not unlawful because
(1) Insular in good faith doubted the Union's majority status and the appropriate-
ness of the unit and (2) the Union did not in fact represent a majority of Insular's
employees in an appropriate unit. The General Counsel disputes these contentions
and asserts that Insular's conduct was motivated solely by a desire to gain time within
which to undermine the Union's majority and hence is not a valid defense. I will
first treat with the Union's majority status because my disposition of this issue
makes it unnecessary to resolve the remaining issues.
1. The Union's majority status
The complaint alleges a refusal to bargain on and after July 29, 1958. The
parties stipulated that during the period from July 29 to August 7, 1958, the date
of the strike, 25 men were employed in the alleged appropriate unit. The super-
visory status of four men in this group is in issue.2 To prove the Union's majority
status, the General Counsel introduced into evidence authorization cards signed by
22 men, including Tierney and Urlaub whose supervisory status is in issue, who were
admittedly employed during the above-stated period. The Respondents contend
that the Union did not represent a free and uncoerced majority of Insular employees
in any appropriate unit because of the organizational role played by Jerome Tierney
and George Urlaub, who, Respondents assert, are supervisors within the meaning
of the Act. The General Counsel contends that these two men are not super-
visors and that, in any event, their activities did not taint the Union's majoriy.
a. The supervisory status of Tierney and Urlaub 2
Respondent Insular operated with three shifts. McEachern worked on the first or
day shift from 8 a.m. to 4:30 p.m.; Tierney on the second shift from 4 p.m. to
12:30 a.m.; and Urlaub on the third shift from 12 midnight to 8:30 a.m. The
shifts thus overlapped by a half hour. Each had the title of shift supervisor on his
respective shift. Their immediate superior was Process Engineer Wagshul, an
admitted supervisor, who normally was present at the plant only from 8 a.m. to
5 p.m. Immediately above Wagshul was Plant Manager O'Donnel, who also was
present only from 8 a.m. to 5 p.m. In addition to the shift supervisor, each shift
had a crew of four men consisting of a reactor operator, a reactor assistant or
utility man, a drier operator, and a tank farm operator .4 These four men worked
in widely separated areas in the plant where they had a specific job to perform.
These men, for the most part, rotated on shifts so that over a period of time a shift
supervisor would have had practically every man work on his shift.
Tierney and Urlaub admitted that they had the same authority and performed
substantially the same duties. As previously noted, Wagshul normally left the plant
about 5 p in. and no other representative of management was present during these
two shifts. Before leaving, Wagshul would write instructions in the logbook for
specific things which he wanted done on the remaining two shifts. As Tierney's
shift began at 4 p.m., Wagshul would also consult personally with Tierney in connec-
tion with the work and the men on his shift.
When the supervisor on the second and third shifts reported for work, he first
consulted the logbook for instructions and then ascertained if enough men were
2 Jerome Tierney, George Urlaub, Myles McEachern, and Eugene Huddy.
3 The factual findings in this section are based on evidence which is admitted or
undenied
4 On the day shift, there was also a crew of twa shipping employees.
'96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available to carry out the assignments. If in his judgement more men were needed
to complete a specific assignment or if some of the crew was absent, he had the
authority without prior clearance to hold men over from the previous shift or to
call men from the following shift to come in early or to do both at the same time.
Entries in the logbook show that Tierney and Urlaub exercised this authority in all
three respects.5
The supervisor was then responsible for seeing that Wagshul's instructions in the
logbook, or received orally, were carried out by the men on his shift.6 Thus Tierney
testified that it was his duty to see that the orders in the logbook were carried out and
that the men in his crew followed the instructions which he gave them. The super-
visor had the authority to reprimand employees for poor work and to commend them
for good work. Tierney testified that he would tell employees when they were doing
"sloppy" work and would show them the correct way to do it. He admitted that it
was his duty to report "sloppy" work to Wagshul. Urlaub admitted that he had
complimented the men on his shift for good work performance and had referred to
them as "my men." The supervisor was the only one on the shift who had to know
every job in the plant thoroughly.
The supervisor was responsible for the production on his shift and also for the
safety of the equipment and the men. Urlaub testified that he would continuously
instruct the men on the proper method of operation and safety procedures.
The plant consists of two levels in the Insular building with two different areas
within the building as well as the outside tank farm area. The members of the
crew work in widely located areas. It is the Supervisor's duty to inspect the entire
plant. It takes about 1 hour to make a tour of duty of the entire plant. Tierney
testified that he makes four or five such tours during his shift, and that he con-
tinuously walked around the plant, checking on the performance and production of
the men, making sure that the men were doing what he told them to do, and relieving
the men for breaks or lunch periods. Urlaub also testified to the same effect.
The supervisor was consulted by Wagshul as to the efficiency and quality of the
work of the men, and would make recommendations with respect to their retention
and advancement. Thus when Tierney was consulted about Ben Barron on one
such occasion, he stated that he did not think much about Barron's work and did
not want him on his shift. The next week, Barron was transferred to another shift.
In fact Tierney testified that each day at the beginning of his shift, Wagshul would
ask him how everybody was doing and how the men were working out, and that he
would report any work deficiencies at that time. On one occasion, Urlaub recom-
mended one of his men, Lombardi, for a raise, at the latter's request. About a week
later, Lombardi received a raise although it was less than Urlaub had reported he
was successful .in getting.
Each employee had a 6-week training period, and the supervisor was in charge
of training the workers on his shift. At the end of the training period, the supervisor
was consulted by either Wagshul or Plant Manager O'Donnel as to the worker's
efficiency. Those whom the supervisor reported to be good workers were retained.
Employees reported grievances to their supervisor, who was authorized to dispose
of petty grievances but to report others to Wagshul or O'Donnel. The men would
ask their supervisor to intercede on their behalf with respect to requests for raises
or improved working conditions. The supervisor would take these matters up with
Wagshul or O'Donnel and would plead the employee's cause. He would generally
be told that it would be looked into. Urlaub and Tierney both testified to the
occurrence of such instances.
The supervisor also made general decisions with respect to the operations of the
plant, such as into which blend tank the batches should be dumped, how the column
should operate, when the column should be cleaned, and who should unload a tank
car. Thus, Urlaub testified that he was left in charge of the crew to operate the
plant, and that he would remind the crew to inform him if anything was not normal
because "I was the one operating the plant." Although each member of the crew
worked on fixed assignments, in case of emergency the supervisor had the authority,
as Urlaub admitted, to shift any man to any job which the supervisor thought the
man was capable of performing. Only the supervisor was authorized to, and did,
make entries in the logbook in connection with the operations of the plant and the
"The individual supervisor made out the overtime slip and at the end of the week, after
the overtime work had already been performed, submitted it for Wagshul's signature
O Although some employees testified that they also read the logbook, they had no
authority to do so. A logbook entry dated July 31, 1957, states that logbook records are
to be read by supervisors only and that no other, operator, unless so authorized, is to read
comments in the log.
INSULAR CHEMICAL CORPORATION, ETC. 97
work of the men. Urlaub admitted noting in the logbook numerous operational
suggestions for improving working conditions, some of which were adopted.
Upon consideration of all the foregoing and the entire record as a whole, I am
convined and find that Tierney and Urlaub possessed, and in fact have exercised, the
authority which constitutes them supervisors within the meaning of Section 2(11)
of the Act.7
b. Organizational activities of Tierney and Urlaub 8
On November 13, 1957, a Board-directed consent election was held among Re-
spondent Insular's employees, in the same unit alleged to be appropriate in the
instant proceeding, to determine whether they wished to be represented by the United
Brotherhood of Carpenters & Joiners of America, AFL-CIO, herein called the
Carpenters. Prior to the election, Tierney and Urlaub admittedly made no secret
of the fact that they were opposed to the Carpenters, openly campaigned against
the Carpenters 'throughout the plant, and urged the employees to vote against the
Carpenters. The views of Tierney and Urlaub were admittedly made known to
Respondent, particularly to Process Engineer Wagshul, and to the employees in no
uncertain terms. The Carpenters was defeated in the election by a vote of 17 to 7.9
In December 1957, Tierney, Urlaub, and employee Joseph Reiner visited McManus,
chief steward of the Union, inquired about the Union, and discussed the possibilities
of organizing the employees. They received some union literature which Tierney
subsequently distributed to the employees at the plant Thereafter, Tierney ad-
mittedly discussed the merits of the Union with employees both on his own and other
shifts and made it clear to them that he was in favor of the Union. Tierney admitted
that the employees knew he was in favor of the Union to the same extent that they
had known he was opposed to the Carpenters Thus, employee Joseph Yoniack
testified that Tierney discussed the Union with him and other workers in the plant,
"told us what kind of union it was, what their policy was, what benefits they had"
and so forth. When Yoniack was asked if Tierney recommended joining the Union,
Yoniack testified, "Yes, he did." Employee Erwin Sholes testified that he first heard
about the Union in the early part of 1958 from Tierney who stated that it was a
good union and that they handled chemical outfits.
Nothing further was done toward organizing the employees until the Carpenters
began picketing the Rubber Corporation plant in May 1958. Tierney testified that
because of the Carpenters' picket line "we decided it was time to get in touch with
the Oil, Chemical and Atomic Workers Union again and start our campaign for
recognition." 10 Tierney thereupon telephoned to Mazzocchi, president of the Union,
told him that "the employees of the Insular Company were ready for organization,"
and asked what the first step should be. Mazzocchi discussed the feasibility of
setting up a meeting for the men where the whole situation could be discussed. As
the next step, Tierney and Urlaub visited Mazzocchi at the Union's headquarters in
early June 1958. At that time Tierney received the union membership application
cards for the men to sign
Tierney admittedly distributed the membership application cards to the men on
his shift and on the other shifts. Tierney's shift overlapped a half hour with the
day and midnight shifts. The distribution and signing of the application cards took
place, for the most part, during change of shifts, at lunch periods, or in the locker
room. The men were informed that Tierney was passing out the application cards
'See, e g , California Spray-Chemical Corp, 86 NLRB 453, 454-455; Southern In-
dustries Company, et at, 92 NLRB 998, 1001; Engine Rebsulding Corporation, et at.,
115 NLRB 1776, 1778; Reeves Brothers, Incorporated, et at., 116 NLRB 422, 428;
Associated Cooperatives, Inc, 112 NLRB 1012, 1013; Jordan-Rogers Company, 107
NLRB 1136; United States Gypsum Company, 109 NLRB 1402. 1405-1406; Apex Tire
and Rubber Company, 117 NLRB 559, 560; General Electric Appliance Company, etc,
119 NLRB 573, 575; Kest Virginia Pulp and Paper Co., 120 NLRB 1281, 1283, and 122
NLRB 738.
s Unless otherwise indicated, the findings in this section are based on the testimony of
the General Counsel's own witnesses, exhibits introduced by the General Counsel, and a
stipulation of the parties.
° Tierney and Urlaub voted in the election, without challenge
1° Tierney and Urlaub testified that both in December 1957 and on this occasion they
contacted the Union at the request of all the employees However, not a single employee
corroborated them in this respect Indeed, only one employee testified that lie had ever
heard of this Union : other employees who testified in this connection indicated that they
first heard of the Union from Tierney. Under all the circumstances, I do not credit
Tierney and Urlaub in this respect.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-and some, who had not received a card, came to him to get one. Tierney gave some
cards to employee Sholes with instructions to pass them out to the maintenance
,employees and see if they would sign them. Sholes thereupon passed cards out to
the four maintenance men, all of whom signed and returned their cards to Sholes
who, in turn, returned them to Tierney. Some of the employees had previously
been told by Tierney that he was getting the cards for the men to sign. All signed
cards were eventually returned to Tierney.
Between June 9 and 14, inclusive, when the first general employee meeting was
held, 20 employees, exclusive of Tierney and Urlaub, had signed membership appli-
cation cards. Of this number, 11 admittedly had signed in Tierney's presence. One
other employee admittedly signed his card in Tierney's presence on June 30. Tierney
testified that "I had all the men that was working on my shift sign the cards in my
presence." He admitted that because of the rotation system, about half of Re-
spondent's employees had worked on his shift in June alone, and that over a
period of time almost everyone worked on his shift. Some of the day-shift em-
ployees admittedly also signed their cards in Tierney's presence. Employee Soha
testified that Tierney asked him if he would join the Union if Tierney showed
him a card. Soha replied that he would "if it's any good." Tierney thereupon
showed the card to Soha, who read and signed it and then returned it to Tierney.
Employee O'Reilly testified that Tierney gave him a card and asked if he would
like the Union. O'Reilly read the card, signed it, and returned it to Tierney.
Employee D'Amato testified that Tierney asked if he was interested in being a union
member. Upon receiving an affirmative reply, Tierney gave a card to D'Amato
who signed and returned it to Tierney.
The first general employee organizational meeting was held on June 14 at the
Union's office. About 16 were in attendance although 20 employees, exclusive of
Tierney and Urlaub, had already signed cards. The next meeting was held on
June 28 and was attended by about 20 men. The employees were notified of both
meetings by Tierney and Urlaub. At the second meeting, Tierney and Urlaub were
elected to a four-man negotiating committee, with Tierney as chairman. The com-
mittee was authorized to call a strike if the Respondent refused to recognize the
Union. Tierney and Urlaub were the only members of the negotiating committee
who were present at the meeting with Respondent Insular on August 6, when they
decided to call the strike.
c. Conclusions with respect to majority status
The Board has accepted signed authorization cards as establishing a duly desig-
nated majority representative, in the absence of any evidence which might impair
the validity of the cards as the free and voluntary expression of the signers. Where,
however, a supervisor has engaged in any activity in connection with the obtaining
of authorization cards, such cards uniformly have been preemptorily discarded.
Thus, the Board has dismissed petitions for an election where the petitioner's
showing of interest was impaired because of a supervisor's activities or solicitation ti
If the Board has taken such a strict approach for the purpose of merely determining
whether a secret-ballot election should be held, then a fortiori must there be a
searching examination to determine whether the activities of any supervisor tainted
the cards for the purpose of establishing the Union's majority representative status.
Here, the Union's organizational drive was undertaken and executed primarily by
Tierney. Before obtaining the membership application cards, he talked to the
employees about the merits of the Union and recommended that they should join.
The evidence shows that the employees knew nothing about this Union until Tierney
advised them about it. Tierney and Urlaub had openly opposed the Carpenters
Union in 1957. When the Carpenters began picketing again in May 1958, they
decided that the time was appropriate for starting the campaign to get the Union
recognized. In view of the role played by Tierney both before and at the time
of the signing of the application cards, I find that Tierney in effect solicited the
employees to sign these cards. It is significant that in 1957 when Tierney and
Urlaub openly opposed the Carpenters, the employees overwhelmingly rejected that
U See, e g, Desilu Productions , Inc, 106 NLRB 179, 182 ( where the Board found that
two employees "were , in effect, solicited " by a supervisor to loin the petitioner and that
the "showing of interest, on which this petition was based , is necessarily impaired by
his activities in the organization of the Petitioner ") ; TVolt Metal Products Corporation,
119 NLRB 659 , 660-666 ( where a supervisor spoke in favor of petitioner at an employee
organizational meeting and to employees at the plant and also solicited the signatures of
three employees . The Board held that such solicitation by a supervisor "does, in fact,
impair a petitioner ' s showing " and dismissed the petition).
INSULAR CHEMICAL CORPORATION, ETC. 99
union; whereas in 1958, when Tierney sponsored and solicited for the Charging
Union, 20 employees signed authorization cards within a period of 6 days and
before the first employee organizational meeting was held. Practically all the
employees had worked on Tierney's shift and would continue to work on his shift
at one time or another. A total of 12 employees had signed the cards in Tierney's
presence. Tierney was the only management representative on his shift, with
authority to direct the employees in their work, to reprimand employees for poor
work, to report work deficiencies to higher management personnel, to determine who
should work overtime, to dispose of petty employee grievances, and to present others
to higher management with a plea on the employees' behalf. It is impossible to
determine to what extent these factors influenced the employees in signing the
application cards under the circumstances and in the manner hereinabove described.
Particularly is this so with respect to the 12 employees who signed in Tierney's
presence.12
In view of the active role played by Tierney, as described above, I am not con-
vinced that the cards, under all the circumstances, establish that the Union was the
duly designated majority representative. 13 At the very least, the 12 cards which
were signed in Tierney's presence cannot be counted. Of the 25 men employed
during the relevant period, Tierney and Urlaub have been found to be supervisors.
Assuming that McEachern and Huddy are also supervisors, a position most favorable
to the General Counsel because they did not sign cards, that would leave 21 employees
in the alleged appropriate unit. Deducting the 12 cards signed in Tierney's'
presence, the remaining cards do not constitute a majority.14
2. The refusal to bargain
The Respondent refused to recognize the Union as the exclusive majority repre-
sentative of the employees in the alleged appropriate unit unless the Union first
demonstrated its majority in a Board-conducted election. As the Union did not
represent a majority of the employees in the alleged appropriate unit at the time
of Respondent's refusal, Respondent's conduct in this respect did not constitute a
refusal to bargain within the meaning of Section 8(a) (5) of the Act.15
B. The cause and prolongation of the strike
The employees of Respondent Insular went on strike on August 7, 1958. The
complaint alleges, and the General Counsel contends, that the strike was caused
and prolonged by the Respondent's unfair labor practices in refusing to bargain
and in engaging in acts of interference, restraint, and coercion.
The Union's negotiating committee, of which Tierney and Urlaub were members,
admittedly was authorized and empowered at the July 28 employee meeting to
call a strike if the Respondent refused to recognize the Union. Erwin Sholes, a
member of the negotiating committee, testified that the committee was not to call
12 The Supreme Court has cautioned that often subtle factors may "restrain" the "com-
plete and unhampered freedom of choice which the Act contemplates." International
Association of Machinists, etc, Lodge No. 35 (Serrick Corp ) v. N L.R B , 311 U S 72, 80.
13Flint River Mills, Inc, 107 NLRB 472, 476-477 As Tierney played an equally
active role in connection with the strike, the fact that the employees went out on strike
stands on no better footing
"I find no merit in the General Counsel's contention that the validity of the applica-
tion caids cannot be impaired by the conduct of Tierney and Urlaub, even if found to be
supervisors, because they voted in the Carpenters' consent election without challenge,
relying on Mississippi Valley Structural Steel Company. Maplewood Plant, 64 NLRB 78,
and Indianapolis Newspapers, Inc., 103 NLRB 1750. Unlike the situation in the cited
cases where the issue was whether the employer violated the Act because of the super-
visors' conduct, the issue in the instant case is whether the employees exercised a free
and untrammeled choice in signing the application cards. A finding that such was not
the case is not necessarily inconsistent with a finding that the employer was not liable
for the supervisors' conduct. In the Desilu case, supra, the fact that the supervisor was
known to have been a member of one union did not deter the Board from finding that
his activities in connection with the organization of petitioner impaired its showing of
interest. Moreover, the record shows that respondent was fully aware of the vuper-
visors' opposition to the Carpenters before the election, and also that there has been
some turnover of employees since that election.
15I therefore find it unnecessary to determine (1) whether Respondent in good faith
doubted the Union's majority status and/or the appropriateness of the unit and (2) what
unit was appropriate.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a strike if the Respondent agreed to the holding of an election other than by the
Board.
By telegram dated July 31, addressed to Plant Manager O'Donnel, the Union
claimed to represent a majority of the employees in an appropriate unit, agreed to
prove its majority through any acceptable way other than a Board election, and
concluded that "unless said procedure is acceptable to you we have no other recourse
but to strike and to allege unfair labor practices against you for refusal to bargain."
At the August 6 meeting with Respondent's representatives and the State Mediator,
Respondent insisted on a Board-conducted election, which was unacceptable to
the Union because such an election could not be held before November 13. Union
President Mazzocchi testified that "we told him [Respondent's president] that we
were prepared to strike the plant to earn recognition as the legitimate collective
bargaining agent for the employees." Tierney testified that they told the Company
they would have to go on strike if they refused to recognize the Union, that after
the negotiations broke down "we told Mr. Merton and Mr. Aberman [Respondent's
president and attorney] that we would have to go on strike since the Company
refused to recognize the Union, and we gave them a strike deadline till 12 noon
the next day." Urlaub testified that "we told the mediator that Tierney and myself
were sent there with specific instruction from the men that either the Union has to
be recognized at this time or we would be forced to stop working."
After the meeting broke up, Tierney returned to the plant about 6 p.m. and,
in response to Wagshul's question, admittedly stated that the only thing that went
on at the meeting was that the Company refused to recognize the Union and that
"the Union would have to go on strike for recognition." The strike began the fol-
lowing day. Employee Paollela testified that he went out on strike "because the
Company refused to recognize the Union as bargaining agent."
The evidence is overwhelming, and I find, that the strike was caused solely because
of the Respondent's refusal to recognize the Union unless it first won a Board-
conducted election, conduct which does not constitute an unfair labor practice, as
previously found. Nor does the record support any other finding than that the
strike was prolonged by the same conduct. Accordingly, I find that the strike was
neither caused nor prolonged by unfair labor practices and hence at no time consti-
tuted an unfair labor practice strike.
C. Alleged interference, restraint, and coercion
1. By Process Engineer Melvin Wagshul
The General Counsel adduced testimony to the effect that in May or June 1958,
while employee Paollela was complaining to Wagshul about the shift-rotation
scheduling, Wagshul stated that Paollela was griping too much, that he would be
fired if he did not keep quiet, and that he was thinking of firing three-fourths of the
men anyway. I find that even if such a statement was made, it is an isolated instance
not warranting the finding of a violation of the Act or the issuance of a Board order.
The General Counsel also adduced testimony to the effect that (1) during the
week before August 5, Wagshul asked Paollela if he knew who the union committee-
men were, stating that the Union was trying to petition for a vote, and (2) sometime
in August told employees Paollela and Lombardo that they could earn up to $4 an
hour without a union, explained the benefits they were getting from the Company
without a union, and asked what they had to gain by going out on strike. Assuming
that the statements were made, I find that they do not constitute unlawful interro-
gation or promises of benefit but were expressions protected by Section 8(c) of
the Act.
John Lombardi testified that (1) in June 1958, when the Carpenters was picketing
Rubber Corporation, Wagshul asked him if he knew who the seven men were who
voted for the Carpenters, and then stated that he intended to fire three-fourths of
the men anyway; and (2) on August 5, Wagshul bought him some coffee and offered
him a 25 cents per hour raise if he would stay with the Company. Wagshul denied
having made the above statements. I do not credit the testimony of Lombardo
hereinabove set forth.
John Lombardi testified that on August 6, Wagshul told him he was due for a
raise soon and then asked, "By the way, did you join the Union?" Lombardi stated
that Wagshul would have to ask the Union's representative. Wagshul then stated.
"Well, I guess that's it." Wagshul gave a different version of this conversation. It
is not disputed that Lombardi had not yet completed his 3 months' probationary
period, at the end of which he would automatically receive a raise. Under all the
INSULAR CHEMICAL CORPORATION, ETC. 101
circumstances, I find nothing unlawful in Wagshul's statements and conduct even
accepting Lombardi's version of the incident.16
2. By Plant Manager O'Donnel
Paollela testified that on July 30, while he was standing at the panel board working
overtime, O'Donnel came up waving a telegram and asked if Paollela could tell him
who the committeemen were, whom he could get in touch with to notify on this
telegram, that he had "received a message that a strike would be pulled if recognition
wasn't established." Assuming this incident occurred as testified by Paollela, I find
nothing unlawful in O'Donnel's statements or conduct.
3. By Maintenance Engineer Philip Gately
Employee Jakacki testified that while he was at work on the morning of August
7, Gately asked him if the Union was forcing him to go out on strike, and that he
replied he was doing it of his own choosing. As Gately did not testify, I credit
Jakacki in this respect. However, I find nothing coercive or unlawful in Gately's
inquiry.
4. By Vice President Wilson
The General Counsel adduced testimony to the effect that (1) in August during
the strike Woodrow Wilson told some pickets that they had no business being
on strike, asked what their gripes were and why they had not come to him with their
complaints; and (2) in November he told some pickets that they were not needed
any longer, that the Company was going to buy resin from Japan and they no
longer had their jobs. The record shows that the strikers were replaced during the
strike, conduct which was not unlawful as they were not unfair labor practice
strikers. Assuming that Wilson made the statements heremabove set forth, I find
that, under the circumstances, they were not unlawful.
5. By bargaining directly with individual employees
The General Counsel sought to adduce testimony to the effect that Respondent
had dealt with some unit employees individually with respect to wage, hours, and
working conditions, after the Union had claimed majority representation and
requested recognition. However, since I have found that the Union at no time
represented a majority of the employees in the alleged appropriate unit, it was not
unlawful for Respondent to deal with the employees individually even assuming
that such was the case.
6. By depriving employees of the use of premises and evicting them from
said premises
During the strike in August the strikers erected a tent, with strike signs, on land
across from the entrance road to Respondents' plants. The tent was used by the
strikers as a shelter and for the dispensing of coffee. On January 1, 1959, Respond-
ents leased the land and other parcels of land adjacent to the plant entrance and
on January 7 served the Union with a notice to vacate the premises because they
were trespassers. The Union complied with the notice and vacated the premises.
The foregoing facts are not in dispute. The General Counsel contends, as the
complaint alleges, that the land was purchased and the Union deprived of the prem-
ises for the purpose of preventing the Union and its adherents from engaging in self-
organization and mutual aid and protection. The Respondents contend that there
is no evidence that such was their purpose, that there was no proof that the eviction
interfered with the strikers' concerted activities, and that the strikers could, and
did, picket on public portions of the road effectively. Assuming the correctness of
the General Counsel's position, I find this to be such an isolated incident as not
to warrant a finding of a violation of the Act or the issuance of a Board order.
D. Alleged discrimination in hire and tenure of employment
By letter dated February 24, 1959, the Union informed Respondents' attorneys
that the strikers were offering to return to work unconditionally. In its reply letter
10 Other testimony adduced with respect to Wagshul involved incidents which occurred
before the 10(b) period. Under the circumstances disclosed by this record and in view of
my other findings, I find that no useful purpose will be served by making, and hence it
is unnecessary to make, findings with respect to them.
5776S4-6l-vol 12S 8
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of March 13, 1959, Respondents' attorney advised that the jobs of all strikers had
either been filled or eliminated prior to February 24, and that, in any event, the
Respondent would not reemploy some of the strikers because of alleged misconduct
during the strike.
The undisputed evidence shows that prior to the request for reinstatement (1)
some of the strikers' jobs had been eliminated as a result of the merger of Respondent
Rubber with Respondent Insular, and (2) the remaining jobs of the strikers had been
filled during the strike. As the strike was not an unfair labor practice strike, it was
not discrimination in violation of the Act for Respondents to refuse to reinstate
or reemploy the strikers under the circumstances. 17
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The record does not preponderantly establish that Respondents have violated
Section 8(a) (1), (3), and (5) of the Act.
[Recommendations omitted from publication.]
17I therefore find it unnecessary to determine whether the strikers engaged in un-
protected activity during the strike.
Ozalid Division of General Aniline & Film Corp. and Printing
Specialties & Paper Products Joint Council No. 2, Inter-
national Printing Pressmen & Assistants' Union of North
America, AFL-CIO. Case No. 01-CA-3701. July 19, 1960
DECISION AND ORDER
On March 28, 1960, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief, and the Respondent
filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Order.
128 NLRB No. 26.