Jeffery-De Witt Insulator Co.

National Labor Relations Board - Board Decisions

Apr 24, 1936

1 N.L.R.B. 618 (N.L.R.B. 1936)

In the Matter Of JEFFERY-DE WITT INSULATOR COMPANY and LOCAL
No. 455, UNITED BRICK AND CLAY WORKERS OF AMERICA
Case No. C-21.-Decided April 24,1936
Electric Equipment Industry-Unit Appropriate for Collective Bargaining:
eligibility for membership in only organization making bona fide effort at col-
lective bargaining ; production employees ; employees on hourly wage basis-
Representatives : proof of choice : membership in union-Collective Bargaimng:
refusal to meet representatives ; employer 's duty as affected by strike-
Employee Status : during strike-Reinstatement Ordered , Strikers : discrimina-
tion in reinstatement ; displacement of employees hired during strike.
Mr. Melvin C. Smith for the Board.
Mr. F. M. Livezey, of Huntington, W. Va., for respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 4, 1935, Local No. 455, United Brick and Clay Workers
of America, hereinafter referred to as Local No. 455, filed a charge
with the Regional Director for the Ninth Region charging the
Jeffery-De Witt Insulator Company, Kenova, West Virginia, herein-
after referred to as the respondent, with having committed unfair
labor practices prohibited by the National Labor Relations Act,
approved July 5, 1935, hereinafter referred to as the Act. A com-
plaint charging the respondent with violations of Section 8, sub-
divisions (1), (3) and (5) of the Act, and accompanying notice of
hearing, were issued on November 25, 1935, by the Regional Director
for the Ninth Region, copies of which were duly served on the re-
spondent and Local No. 455. On November 29, 1935, the respondent
filed an answer and a motion to dismiss the complaint on the grounds
that the Act as applied to the respondent's business is unconstitu-
tional in that it violates the Fifth and Tenth Amendments to the
Constitution of the United States, and in that it constitutes an un-
lawful delegation of legislative power in violation of Article I, Sec-
tion 1, of the Constitution of the, United States; that the complaint
as issued varies from the charges filed and is otherwise insufficient;
and that the acts alleged in the complaint occurred prior to the effec-
tive date of the Act. At the conclusion of the hearing, counsel for
the respondent renewed the motion to dismiss on the same grounds
618
DECISIONS AND ORDERS 619
and for the further reasons that the evidence adduced at the hearing
did not show that the manufacture of insulators is a matter of inter-
state commerce nor that the respondent has been guilty of unfair
labor practices as defined by the Act. The Trial Examiner made no
rulings on these motions. The Board now denies the motions to
dismiss.
Pursuant to a notice of postponement issued on December 5, 1935, a
hearing was held at Huntington, West Virginia, on December 18 and
19, 1935, before Daniel M. Lyons, duly designated to act as Trial
Examiner, at which hearing full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence bearing or
the issues was afforded both parties. Much testimony and several
exhibits were received in evidence over the objections of counsel for
the respondent. The rulings of the Trial Examiner in respect to the
admission of this evidence are hereby affirmed.
By order of December 27, 1935, and pursuant to Article II, Section
35, of National Labor Relations Board Rules and Regulations-
Series 1, the proceeding was transferred to and continued before the
Board.
Upon the evidence adduced at the hearing and from the "entire
record now before it, including the transcript of the hearing, exhibits
introduced and pleadings filed, the Board makes the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS
1. The respondent, a corporation organized under and existing by
virtue of the laws of the State of West Virginia, is engaged in the
manufacture and sale of insulators at a plant in Kenova, Wayne
County, West Virginia. The respondent in the year 1935 employed
at various times between 82 and 166 persons, depending upon the
extent of production. On November 26, 1935, 84 persons were
employed in the respondent's plant.
2. Raw materials used by the respondent in the manufacture of
insulators include clay, flint, kaolin, bitstone, feldspar, plaster, oxides,
stains, mixed dust and hardware. Clay is secured from England.
and from Kentucky, New York, Michigan and Tennessee; flint from
West Virginia; kaolin from Florida; bitstone from West Virginia;
feldspar from Tennessee; plaster from Ohio; hardware from Ohio.
Indiana, New York and Pennsylvania. The record does not show
where oxides, stains and mixed dust are obtained. For the eleven
months period ending November 30, 1935, raw materials costing
$61,236.75 were purchased by the respondent. The cost of the mate-
rials which were purchased within the State of West Virginia was
$9,259.92, being approximately 15 per cent of the total purchased ;
620 NATIONAL LABOR RELATIONS BOARD
the balance of the materials, at a 'cost of $51,977.73, or 85 per cent,
was purchased in other states of the United States and from foreign
countries. During the same period, the respondent also purchased
crating, for use in the shipment of finished products, at a cost of
$7,390.27 in the State of West Virginia, and at a cost of $197.93 in
other states.
3. Insulators sold by the respondent from January 1 to November
30, 1935, at a gross sale price of $230,854.75, were distributed in 45,
states of the United States, the Panama Canal Zone, Brazil, Canada;
India, Mexico, Newfoundland, New Zealand, Peru, and Venezuela.
Sales within the State of West Virginia were at a gross price of
$2,555.26, representing approximately 1 per cent of the total sales.
4. The respondent maintains sales offices in Kenova, West Virginia,
New York City, New York, and Chicago, Illinois. It also makes sales
through approximately twenty regularly employed sales agents
located throughout the United States who are paid on a commission
basis. It also employs a foreign sales agent in New York City, who in
turn appoints foreign subagents.
5. All of the aforesaid constitutes a continuous flow of trade, traffic
and commerce between the States and with foreign countries.
H. THE APPROPRIATE UNIT AND MAJORITY
6. The complaint alleges that the production employees of the
respondent constitute a unit appropriate for the purposes of collec-
tive bargaining. The record contains no denial of this allegation,
nor does the respondent assert that any other unit is the proper one.
The membership of Local No. 455, the only labor organization in the
respondent's plant, is limited to production workers employed by the
respondent. Furthermore, the respondent has recognized production
workers as a logical classification in that the respondent, in sub-
mitting for the record statistics on payrolls and employment in its
plant, grouped its payroll into the headings "Factory" and "Others",
and its employment record into "Wage Earners", "Salary Plant" and
"Salary Other". We find that the production employees of the re-
spondent constitute a unit appropriate for the purposes of collective
bargaining.
7. Local No. 455 is a labor organization which was organized
among the production employees of the respondent in September,
1933. It is a local of United Brick & Clay Workers of America,
affiliated with the American Federation of Labor. The Secretary
of Local No. 455 testified that approximately 75 members of Local
No. 455 were working in the respondent's plant on June 15, 1935, at
the time a strike, discussed hereafter, was called. The employment
record of the respondent shows that on June 14, 89 persons were
DECISIONS AND ORDERS 621
employed by the respondent, 63 classified as wage earners, 13 as salary
employees at the plant and 13 as salary employees elsewhere. As
previously stated the number of employees actually working for the
respondent at different periods during 1935 varied from 82 to 166;
those not actually at work were still considered as employees. At
the hearing a list of 129 persons was submitted on behalf of Local
No. 455, as members of Local No. 455 in good standing on December
17, 1935. There is no evidence in the record to show that the mem-
bership of Local No. 455 varied between June 15 and December 17,
1935. Whether we use the maximum number of 166 employees and
the total membership of Local No. 455 as 129, or the number of pro-
duction workers employed by the respondent on June 14 as 63, and
the number of members of Local No. 455 working on June 15 as
approximately 75, it is apparent that at all times since June 15, and
more particularly on July 16, 17, 18, and about August 1, the dates on
which the evidence shows the respondent refused to bargain collec-
tively, a majority of the employees of the respondent engaged in
production were and have been members of Local No. 455.
III. THE UNFAIR LABOR PRACTICES
8. At the time of the organization of Local No., 455 in 'September
1933, a committee was elected to deal with the respondent in collec-
tive bargaining. Upon the refusal of the respondent to meet the
committee and bargain collectively, a strike was called on October
13, 1933. The strike lasted three days and was settled with the aid
of a Conciliator from the United States Department of Labor. The
testimony of a member of Local No. 455 is to the effect that the
strike was settled by the respondent's agreement to recognize Local
No. 455 and to reemploy two union members to each non-union mem I
ber in starting up the plant after the strike. It is not apparent from
the record just what form this agreement took. The evidence does
show that at all times subsequent to this, Local No. 455 had a com-
mittee which met with the management for the purposes of collective
bargaining. The testimony on behalf of Local No. 455 was that the
respondent did not, however, live up to its agreement in the rehiring
of men.
In March, 1934, Local No. 455 again solicited the aid of a Con-
ciliator from the Department of Labor, for the purpose of attempting
to secure an agreement with the respondent concerning seniority,
wages, closed shop and the staggering of work. The respondent
agreed to cease staggering work, and to grant a wage increase, a
portion of which was to become effective immediately, the balance at
a later designated time. The immediate increase was received but
the balance was never given. Again the record does not show what
form this agreement took.
622 NATIONAL LABOR RELATIONS BOARD
The sincerity of the respondent in any later negotiations with Local
No. 455 is subject to question in the light of the fact that Local No.
455 had to secure the aid of Conciliators before any concessions were
made by the respondent, and that in neither case did the respondent
live up to the agreements in their entirety.
9. From the time of the strike in October, 1933, until June, 1935,
the respondent had been meeting at least once a month with repre-
sentatives of Local No. 455. As early as March, 1934, Local No. 455
sought to secure an agreement respecting seniority. In response to
the demands of Local No. 455, a schedule of seniority by which the
respondent's workers were divided into ten departments was prepared
on April 3, 1935.
The respondent contends that no agreement was ever made that
seniority according to this schedule should be effective, and that it
merely stated it would try to operate under this seniority schedule
as an experiment. Whether the respondent did or did not agree to
put seniority into effect need not be decided for the purposes of this
decision. The important fact is, that for many months the question
of seniority was a major issue between the parties.
10. J. C. Cassels, auditor, and W. L. Stinson, vice-president sand
general manager, who on behalf of the respondent met Local No. 455
for the purposes of collective bargaining, testified that on April 23,
1935, Local No. 455 submitted a proposed agreement to the respond-
ent. This proposed agreement contained as its two principal features
a provision for seniority in the same manner as provided by the sched-
ule of April 3, and a provision for a union shop. (The term "union
shop" was defined as a plant where a non-union person might secure
employment, but would have to become a union member within a
stated period of time, to continue his employment.) On behalf of
the Board there was no testimony as to whether or not such a proposed
agreement had been submitted on April 23, but there was testimony
that another proposed agreement offered in evidence had been sub-
mitted to the respondent by' Local No. 455 on or about May 15, 1935.
The respondent denies that this proposal was submitted to it on May
15 or at any time. However, the proposal, which Local No. 455
claims to have submitted on May 15, is substantially the same as the
proposal which the respondent claims was submitted April -23. In
both, seniority and union shop are the principal features. It is
apparent that at least from May 15, 1935, the issue of union shop
had also become, as seniority had for some time been, an issue between
the parties.
11. On or about June 1, 1935, the respondent submitted a counter-
proposal to Local No. 455. This counter-proposal contained practi-
cally verbatim some of the less important features of the earlier pro-
DECISIONS AND ORDERS 623
posal of Local No. 455, As to the two main issues, the respondent's
counter-proposal ignored the issue of union shop ; as to seniority, it
provided : "It shall be the policy of the Company to give employment
to the employees having the longest service record, other qualifications
being equal for the particular work to be performed." The evidence
submitted by the respondent was to the effect that it would not accept
the seniority rule proposed by Local No. 455 and which, by the admis-
sion-of both parties, had been adhered to for some time after the
preparation of the schedule of April 3, 1935, because it could not
successfully be used in the respondent's plant in that too many types
of work, each requiring specialized skill, are done in each department.
Some evidence was introduced on behalf of the respondent to show
that because of the operation of the seniority rule materials had been
destroyed by putting men on operations with which they were not
familiar.
12. Local No. 455 refused to accept the counter-proposal of the
respondent and on June 12 or 13, 1935, submitted a second proposal.
With respect to seniority and union shop, this proposal was practi-
cally identical with the earlier proposal of Local No. 455. However,
it added a provision for check-off by the respondent of initiation fees
and dues of Local No. 455, a provision which had not previously been
submitted to the respondent.
13. On June 13, 1935, a special meeting between the respondent
and the Committee of Local No. 455 was held to discuss this second
proposal. The proposal was considered paragraph by paragraph.
An impasse was reached, neither side being willing to retreat from
its position in regard to seniority, union shop and check-off.
In accordance with a strike vote taken on June 14, 1935, practically
all workers in the respondent's plant ceased work at noon of June 15.
Again on June 16, the respondent met with the Committee. This
meeting lasted about five hours, the discussion centering around the
issues of seniority, union shop and check-off. No agreement was
reached, but W. L. Stinson, vice-president and general manager of
the respondent, promised to contact the directors of the respondent
to try to secure their consent to the union demands. On June 20
Stinson reported that the directors would not consent to entering into
an agreement with Local No. 455 embodying seniority, union shop
and check-off in the manner desired by Local No. 455.
On the same day, Stinson addressed employees who had returned
to the plant for their checks and asked -them to return to work,
stating that he wanted them to return as "J-D employees".
14. During the period from June 20 to July 15, 1935, the plant of
the respondent operated far below normal or seasonal capacity.
There evidently were no meetings during that time between Local No.
624 NATIONAL LABOR RELATIONS BOARD
455 and the respondent. It was not until July 15 that a Conciliator
from the Department of Labor again came into the breach. Mr.
Edward McDonald from the United States Department of Labor and
Mr. J. F. Woods, an inspector from the West Virginia Department
of Labor, met with Mr. Stinson and his counsel on July 16, 17, 18,
and about August 1.
According to the testimony of J. F. Woods, the Conciliators at all
of these meetings requested that the respondent meet with the Com-
mittee of Local No. 455, which request the respondent consistently
refused. Other requests were also made by the Conciliators at these
conferences. At the meeting of July 16, they suggested that the re-
spondent submit a counter-proposal to the last proposal submitted
by Local 455. Stinson, in reply to this suggestion, stated he would
like to have time to consider it. At the meeting of July 17, Stinson
stated the respondent had no counter-proposal to offer. At this meet-
ing the Conciliators also requested the respondent to accept a pro-
posal prepared by the Conciliators by which the strikers would be
returned to work immediately and the matters in issue be submitted
to arbitration. Stinson stated that he would not accept this proposal
because there were several men among the strikers the respondent
could not afford to reemploy because they were troublemakers. At
the meetings of July 18 and about August 1, the Conciliators again
sought to secure the consent of the respondent to meet with the
Committee but were again unsuccessful.
15. The question for determination is whether or not the respond-
ent was under a duty to meet with the Committee when requested to
do so by the Conciliators on July 16, 17, 18 and about August 1.
It seems apparent from the record that the respondent did engage
in collective bargaining with Local No. 455 on and prior to June 20,
1935, even though no agreement had been reached by the parties.
Despite the fact mentioned previously that the respondent's good
faith in some of its earlier dealings with Local No. 455 is question-
able, the fact that the respondent offered to enter into an agreement
with Local No. 455 on June 1, accepting some of its demands, and- met
frequently with Local No. 455 in the period from June 1 to 20, 1935,
to discuss the proposals and counter-proposals, leads us to believe that
the bargaining by the respondent at that time was done in good faith.
It is undoubtedly true that an impasse had been reached by the parties
on June 20, 1935, on the three substantive issues of seniority, union
shop and check-off, Local No. 455 being unyielding in its demands
concerning these issues, the respondent equally firm in its refusal to
recede from its position. As long as this impasse continued the re-
spondent might have been justified in refusing to meet with the
Committee on the basis that no agreement was possible.
DECISIONS AND ORDERS 625
However, the situation existing on July 16, 17, 18 and about August
1, had changed materially. A strike had been in progress for more
than a month. Because of this situation, disinterested third persons,
representatives of Federal and State agencies, had offered their serv-
ices to secure, if possible, some break in the deadlock. They offered
employer and employees alike an opportunity to reexplore the situa-
tion and to to determine the possibility of an agreement which would
be acceptable to both parties in the light of the then existing circum-
stances. If the respondent had been sincerely interested in using the
procedure of collective bargaining as a means of promoting indus-
trial peace it would have seized this as a most auspicious time to have
met with Local No. 455. -
Stinson told the Conciliators that he would not meet the Committee
because so many meetings had been held that further meetings would
be useless. This reason is not convincing. A strike had been in
progress for more than a month. The presence of the Conciliators
-was indicative of the desire of the strikers to compose their differences
-with their employers.
The record convinces us that after the strike began, the respondent
.did not desire to reach an agreement with its striking employees. In
.addition to telling the Conciliators that he would not meet the Com-
mittee because further meetings would be useless, Stinson told them
that he would not meet the Committee because the situation was
working itself out nicely, and because the respondent had no further
,duty to meet the strikers inasmuch as, by striking, they had ceased to
be employees of the respondent. The record shows clearly that a
current labor dispute existed on July T6, 17, 18 and about August 1;
thus, at all such times, the strikers were still employees within the
meaning of the Act.' These statements of Stinson's clearly show
that the respondent no longer regarded itself as an employer whose
relations with its employees were governed by the orderly procedure
required by the Act.
At the hearing, Stinson admitted that his statement to the strikers
on June 20, that he wished to deal with them as "J-D employees",
meant that he did not wish to deal with them through a union. This
merely reinforces our conviction that, regardless of what the result of
a meeting with the Committee might have been, the respondent no
longer desired, or considered itself required, to use the procedure of
collective bargaining as a means of reaching an agreement; and that
the respondent had finally determined to seize the strike as a means of
eliminating Local No. 455 as the bargaining agent of its employees.
1 Section 2, subdivision (3) of the Act defines an employee as : ' . . . any indi-
vidual whose work has ceased as a consequence of, or in connection with any current
labor dispute. . .
626 0NATIONAL LABOR RELATIONS BOARD
Consequently, the respondent's refusal to negotiate with the strikers
through the Conciliators was merely the final expression 9f its deter-
mination not to bargain collectively.
We find that the respondent refused to bargain collectively with
Local No. 455 in respect to conditions of employment on July 16, 17,
18 and about August 1, 1935.
16. The statement of Stinson to the Conciliators that there were
several strikers the respondent would not take back because they were
troublemakers is alleged in the complaint to constitute a violation of
Section 8, subdivision (3), of the Act, in that it constituted discrimi-
nation in regard to hire and tenure of employment, and thereby dis-
couraged membership in a labor organization. The evidence shows
that Stinson did not state who the persons were that the respondent
would not reemploy. There is testimony that McReynolds, a fore-
man, named several persons to a striking employee whom he alleged
the respondent would not reemploy. The record does not show that
the intent was to discriminate because of union activities and affilia-
tions or that the persons named, or any other striker, sought reem-
ployment and were discriminated against for this reason. We con-
clude that the evidence is insufficient to justify a finding that the
respondent has been guilty of discrimination in regard to hire and
tenure of employment.
17. The respondent by refusing to bargain collectively with Local
No. 455 in respect to conditions of employment has interfered with,
restrained and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the National Labor Relations Act.
18. The effect of the strike was to burden and obstruct commerce.
The respondent by its refusal to bargain collectively with Local No.
455 placed obstacles in the way of settling the strike and as a conse-
quence was responsible for the continuance of the burden and obstruc-
tion to the free flow of commerce. We find, therefore, that these acts
of the respondent have led and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
THE REMEDY
The record shows that on November 26, 1935, the respondent was
employing 58 wage earners, only 23 of whom had been employed
prior to June 15, 1935. The record does not show how many of the
new employees were hired on and after July 16, 1935, when the
respondent refused to bargain collectively.
Under these circumstances no effective relief would be granted by
merely ordering the respondent to bargain collectively. Since the
respondent in refusing to bargain collectively on July 16, 1935, and
thereafter, precluded the possibility of the strikers returning to work
DECISIONS AND ORDERS 627
under an agreement which might have been reached at that time, we
will also order the respondent to offer employment to its employees
who were on strike on July 16 and who have not received substan-
tially equivalent employment elsewhere, replacing, if necessary, the
persons who were hired by the respondent for the first time on and
subsequent to July 16, 1935.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceedings the Board finds and concludes as
matters of law :
1. Local No. 455 is a labor organization, within the meaning of
Section 2, subdivision (5) of the Act.
2. The employees of the respondent engaged in production consti-
tute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the Act.
3. By virtue of Section 9 (a) of the Act, Local No. 455, having
been designated as their representative by a majority of the em-
ployees in an appropriate unit, was on July 5, 1935, and at all times
thereafter has been, the exclusive representative of all employees in
such unit for the purposes of collective bargaining.
4. The respondent, by refusing to bargain collectively with Local
No. 455 in respect to conditions of employment on July 16, 17, 18 and
about August 1, has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8, subdivision (5) of the Act.
5. The respondent, by interfering with, restraining and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8, subdivision (1) of the Act.
6. The unfair labor practices in which the respondent has engaged
and is engaging constitute unfair labor practices affecting commerce,
within the meaning of Section 2, subdivisions (6) and (7) of the Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision ( c) of the National Labor Rela-
tions Act , the National Labor Relations Board hereby orders that the
respondent , Jeffery-De Witt Insulator Company, and its officers and
agents, shall:
1. Cease and desist from refusing to bargain collectively with Local
No. 455 as the exclusive representative of its employees engaged in
production in respect to rates of pay, wages , hours of employment
and other conditions of employment.
628 NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local No. 455 as the
exclusive representative of its employees engaged in production in
respect to rates of pay, wages, hours of employment and other condi-
tions of employment.
(b) Offer employment to its employees who were on strike on
July 16, 1935, and who have not received substantially equivalent
employment elsewhere, where the positions held by such persons on
June 15, 1935, are now filled by persons who were first employed
by the respondent on and after July 16, 1935, and. place all other
employees who were on strike on July 16, 1935, and have not since
received substantially equivalent employment elsewhere on a prefer-
ential list to be offered employment as and when additional labor is
needed.