Johns-Manville Products Corp.

National Labor Relations Board - Board Decisions

Nov 17, 1939

17 N.L.R.B. 895 (N.L.R.B. 1939)

In the Matter Of JOHNS-MANVILLE PRODUCTS CORPORATION and LoM-
POC CELITE WORKERS, LOCAL No. 439 OF THE INTERNATIONAL UNION
OF MINE, MILL-AND SMELTER WORKERS, AFFILIATED WITH THE C. I. O.
In the Matter Of JOHNS-MANVILLE PRODUCTS CORPORATION and INTER-
NATIONAL UNION OF MINE, MILL & SMELTER WORKERS
In the Matter of JOHNS-MANVILLE PRODUCTS CORPORATION and CELITE
MANUFACTURING EMPLOYEES (A. F. OF L.)
Cases Nos . C-1251, R-727, and R-728, respectively .Decided
November 17',1939
Insulating and Building Materials Manufacturing Industry-Interference,
Restraint , and Coercion : charges of, not sustained-Discrimination : charges of,
not sustained-Prior Election not Voided : objections alleging intimidation,
coercion , and discriminatory lay-offs affecting result of election not sustained-
Certifcation of Representatives : upon results of ballot in prior election.
Mr. Charles M. Brooks, for the Board.
Pillsbury, Madison & Sutro, by Mr. N. Korte, of San Francisco,
Calif., for the respondent.
Mr. A. H. Petersen and Mr. K. A. Ellars, of Los Angeles, Calif.,
for the C. M. E.
Mr. R. O. Lamson, of Los Angeles, Calif., for the International.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
ORDER
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On January 3, 1938, International Union of Mine, Mill & Smelter
Workers, herein called the International, filed with the Regional
Director for the Twenty-first Region (Los Angeles, California) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Johns-Manville Products
Corporation, Lompoc, California, herein called the respondent, and
requesting an investigation and certification of representatives pur-
17 N. L. R. B., No. 76.
895
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On February 24, 1938 , Celite Manufac-
turing Employees (A. F. of L.), herein called the C . M. E., filed a
similar petition . On March 14, 1938, the National Labor Relations
Board, herein called the Board, acting pursuant to Section -9 (c) of
the Act and Article III, Sections 3 and 10 (c) (2), of National Labor
Relations Board Rules and Regulations-Series 1,- as amended; or-
dered a consolidation of the two cases for the purpose of hearing,
and also ordered an investigation and authorized the Regional Di
rector. to conduct it and to provide for an appropriate hearing upon
due notice.
On March 30 , 1938, the Regional Director issued a notice of hearing,
copies of which were duly served upon the respondent , upon the
International , and upon the C. M. E. Pursuant to the notice , a hear-
ing was held on April 12, 1938, at Los Angeles , California , and con-
tinued on April 13, 1938, at Lompoc, California, before Jesse E.
Jacobson , the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel, the Interna-
tional by Ed Sugar , and the C. M. E. by A. H. Petersen , and all
participated in the hearing . Full opportunity to be heard, to ex-
amine and cross-examine witnesses , and to introduce evidence bear-
ing on the issues was afforded all parties.
On June 22 , 1938, the Board issued a Decision and Direction of
Election , directing that "an election ' by secret ballot shall be con-
ducted within twenty (20) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Twenty-first Region, acting in this matter as agent for the National
Labor Relations Board and subject to Article III, Section 9, of said
Rules and Regulations , among the production and maintenance em-
ployees of Johns-Manville Products Corporation , at its Lompoc,
California , plant who were employed by it during the pay-roll period
ending February 27, 1938, excluding supervisory employees , labora-
tory workers , engineers , and office and clerical workers, and those
who have since quit or been discharged for cause , to determine
whether they desire to be represented by International Union of
Mine, Mill and Smelter Workers, affiliated with the Committee for
Industrial Organization , or by Celite Manufacturing Employees,
affiliated with the . American Federation of Labor, for the purposes
of collective bargaining, or by neither." 1
An election by secret ballot was conducted under the direction and
supervision of the Regional Director on July 8, 1938 . On July 11,
_1938, the Regional Director issued his Intermediate Report Upon
17 N. L. B. B. 1055.
JOHNS-MANVILLE PRODUCTS CORPORATION 897
Secret Ballot, which was duly served upon the parties to the pro-
ceeding.2
As to the balloting and its results, the Regional Director reported
the following :
Total number of employees eligible __________________________ 183
Total number of ballots counted _____________________________ 152
Total number of votes for Celite Manufacturing Employees
(A. F. of L.) --------------------------------------------- 94
Total number of votes for International Union of Mine, Mill &
Smelter Workers------------------------------------------ 56
Total number of votes for neither organization --------------- 2
Total number of blank ballots ________________________________ 0
Total number of void.ballots _------------------------------- 1
Total number of challenged votes____ _______________________ 3
Since the challenged votes could not affect the results of the elec-
tion, it is unnecessary to make any determination with respect thereto.
Oil July 7, 1938, Lompoc Celite Workers, Local No. 439, herein
also called the International, filed with the Regional Director a second
amended charge 3 alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the Act. On the same day, the International sent a letter to the
Regional Director protesting the forthcoming election.
On July 15, 1938, the International protested the election and
adopted as grounds for its objection the matters set forth in its second
amended charge and in its letter to the Regional Director of July 7,
1938. The letter of July 7 alleged in substance the matters contained
in the second amended charge, and protested the holding of the elec-
tion scheduled for July 8, 1938, on the ground that it would not reflect
the free choice of the employees due to the alleged unfair labor
practices by the respondent prior thereto.
On July 21, 1938, the Board, by the Regional Director, issued its
complaint alleging that the respondent h'ad engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act.
The complaint and accompanying notice of hearing were duly served
upon the respondent, the International, and the C. M. E. The com-
plaint alleged, in substance, that the respondent (1) discharged or
2 It was stipulated at the hearing on August 9, 1938 , between counsel for the Board and
counsel for the respondent that the Decision , Direction of Election , and Intermediate Report
of the Regional Director in Cases Nos . R-727 and R-728 be made part of the record in
Case No . C-1251.
. 3 The original charge was filed by International Union of Mine, Mill & Smelter workers
on April 1 , 1938 . The first amended charge was filed by Lompoc Celite Workers, Local
No. 439 ( of the International Union of Mine, Mill and Smelter Workers, affiliated with the
C. I. 0.) on April 5, 1938.
898 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
laid off and refused to reemploy certain named employees 4 because
of their activity in and affiliation with the International and because
they had engaged in concerted activities for the purpose of collective
bargaining and other mutual aid or protection; and (2) by these
and other enumerated acts and conduct at various other times inter-
fered with, restrained, and coerced its employees in the exercise of
their right to self-organization and to engage in concerted activities
for their mutual aid and protection as guaranteed in Section 7 of
the Act. On July 27, 1938, the Regional Director issued and served
upon the parties an amendment to the complaint striking therefrom
the names of seven employees .5
On July 29, 1938, the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Sections 8 and 10 (b), of National Labor
Relations Board Rules and Regulations-Series 1, as amended, or-
dered a further investigation in the representation case and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice upon the International's objec-
tions to the election, and further ordered that the representation case
and the case initiated by the filing of the above charges be consoli-
dated for the purpose of hearing. On July 29, 1938, the Regional
Director issued notice of hearing in the consolidated cases, copies of
which were duly served upon all the parties.
On August 2, 1938, the respondent filed an answer in which it
denied the unfair labor practices alleged in the complaint and set
forth as an -affirmative defense that the employees named therein had
either voluntarily quit their employment, been discharged for cause,
or laid off due to the necessary curtailment of the respondent's pro-
duction operations. The answer further alleged as a partial affirma-
tive defense that, the complaint could not be maintained as to those
alleged violations of the Act which had formed the basis of a charge
filed by the International on January 3, 1938,6 and subsequently
4 William L. Pratt, Bruce Pope, Edward John Higgins (erroneously designated as Jack
Higgins), John Thomas Bishop, E. C. Barnett, Jr., E. P. Thompson, Kermit R. Basham,
Ben Acquistapace, Robert Hardin, Reginald Tognetti, Glen Page, Theodore Jones, Louis
Archuleta (erroneously designated as Lewis C. Archuleta), Hubert Donley (erroneously
designated as Hugh Donley), Rayburn Donley, R. A. Roberts, William McCormack, Dalos
Graf, Edward Walkingstick, J. T. Rogers, Harold Elwin Lovelace, Raymond C. Hall (erro-
neously designated as Ray Hall), Harold Van Meter, Claude Van Meter, Frank Farren,
Aldon C. Burrill, and Elmer 'Denny, Omer Chambers, Roy McNeill, Charles Bower, William
Jenks, Alfred Soto, Manton Doggett, R. L. Fuller, O. B. Luckie, David Mueir, C. A. Cooper,
R. O. Seeley, A. B. Jackson, Earl Chambers, Hack O'Hair, S. E. Hockett, John Overman,
Bob Vandeventer, Orville Vandeventer, John McCarthy, A. F. Stone, Pratt Tomlinson.
W. J. Adamson, and Webb Jay.
Omer Chambers, Roy McNeill, Charles Bower, William Jenks, Alfred Soto, Manton
Doggett, and R. L. Fuller.
e The charge alleged that the respondent had interfered with, intimidated, and coerced
its employees, dominated the formation of a labor organization, and discharged George
Hopkins, Johnny Bishop, Ed Thompson, and Theodore Storey solely because of their union
activities.
JOHNS-MANVILLE PRODUCTS CORPORATION 899
withdrawn by the International with the consent of the Regional
Director in accordance with a compromise and settlement agreement
between the respondent and the International.
Pursuant to notice and notice of postponement, a hearing in the
consolidated cases was held at Lompoc, California, from August 4 to
August 24, 1938, inclusive, before David F. Smith, the Trial Exam-
iner duly designated by the Board. The Board and the respondent
were represented by counsel, the International by R. 0. Lamson, and
the C. M. E. by A. H. Petersen and K. A. Ellars, and all participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the inception of the hearing, the re-
spondent moved to dismiss that part of the complaint to which the
respondent's partial affirmative defense related. The Trial Examiner
denied the motion. At the same time, both the respondent and the
C. M. E. moved that the order for further hearing in the representa-
tion case be set aside as not made in accordance with the Board's
Rules and Regulations, stating as ground in support thereof that the
objections to the Regional Director's Intermediate Report on the
ballot were not filed within the required period,' and further that
they had never received copies of the protest letters embodying such
objections, and had not been informed of their contents. The Trial
Examiner denied the motions. The ruling was not prejudicial under
the circumstances. In response to the objections of the C. M. E., the
Trial Examiner offered to adjourn the hearing until such time as
counsel for the Board advised in writing as to the specific grounds
upon which the International filed its protest. Counsel for the
C. M. E., however agreed that the hearing proceed upon assurance that
he would be so advised. The Trial Examiner directed that the re-
spondent also be furnished with copies of the International's letters
of protest, and on August 11, 1938, counsel for the Board presented
copies thereof to both the respondent and the C. M. E. Prior to
the hearing, the respondent and the C. M. E. had been served with
copies of the complaint and the second amended charge which consti-
tuted the basis of the objections to the election filed by the Interna-
tional . The C. M. E. and the respondent were thus advised before
and during the course of the hearing in due time to meet the issues
presented by the objections, and were not prejudiced by the delay
in receiving copies of the letters of protest.
At the conclusion of the Board's case, the Trial Examiner granted
motions by counsel for the Board to amend the pleadings to conform
' The Intermediate Report on the Ballot was issued on July 11 , 1938. The letter protest-
ing the election on the grounds contained in the second amended charge was filed by the
International on July 15 , 1938. The rule providing for the filing of objections within
5 days was complied with.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the proof, and to dismiss the complaint without prejudice as to
16 employees named therein.8 At the same time, the respondent re-
newed a previous motion to dismiss the representation cases on the
ground that they were concluded at the time the Regional Director
filed his Intermediate Report Upon Secret Ballot, and moved that the
complaint be dismissed for want of substantial evidence to sustain
the allegations thereof. The Trial Examiner denied these motions.
At the close of the hearing, the respondent renewed its motion to
dismiss. The Trial Examiner reserved rulings thereon for his Inter-
mediate Report. At the same time, the C. M. E. moved that the
Board certify it as the duly elected representative of the respondent's
employees pursuant to the election by secret ballot held on July 8,
1938, and in accordance with the Intermediate Report of the Regional
Director on said ballot. The Trial Examiner did not rule upon this
motion, according it the status of an open motion in the record
addressed to the Board. The motion is hereby granted, for reasons
appearing below in Section IV. The Trial Examiner notified the
parties to the proceeding that they were entitled within 10 days from
the receipt of the Intermediate Report to request oral argument be-
fore the Board, and were further advised of their right to file briefs
with the Trial Examiner. None of the parties availed themselves of
the opportunity to file briefs with the Trial Examiner, and the
respondent and the International waived oral argument before the
Board.
On April 3, 1939, the Trial Examiner issued his Intermediate
Report, a copy of which was duly served upon all parties, finding
that the respondent had not engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (3) and Sec-
tion 2 (6) and (7) of the Act, and granting the aforesaid motions for
dismissal of the complaint made by the respondent. The Trial Ex-
aminer did not make any ruling on the motion for dismissal of the
representation cases, stating that he was without authority to dispose
of such motion. The motion is hereby denied. Thereafter the Inter-
national and W. L. ;McCormack, an employee alleged in the com-
plaint to have been discriminatively discharged, filed exceptions to
the Intermediate Report. The respondent and the International
also filed briefs which the Board has considered.
During the course of the hearing, the Trial Examiner made other
rulings on motions and objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. In its exceptions the International alleged bias and preju-
80. B. Leckie. David Mueir, C. A. Cooper, R. 0. Seeley, A. B. Jackson. Earl Chambers.
Hack O'Hair, S. E. Hockett, John Overman, Bob Vandeventer, Orville Vandeventer, John
McCarthy, A. F. Stone, Pratt Tomlinson, W. J. Adamson, and Webb Jay.
JOHNS-MANVILLE PRODUCTS CORPORATION, 901
dice on the part of the Trial Examiner against the Board and the
International.' Although the record discloses some instances of
abruptness and impatience by the Trial Examinei during the hear-
ing, the record is devoid of any indication that the Trial Examiner
was biased or conducted himself in a manner prejudicial to the
Board's case or to the interest of the International in the proceedings.
The Board has considered all the exceptions to the Intermediate
Report and the briefs, and in so far as the exceptions are inconsistent
with the findings of fact, conclusions of law, and order set forth be-
low, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent,. a subsidiary of Johns-Manville Corporation, is
organized under the laws of the State of Delaware and maintains its
principal office in New York City. On the Pacific Coast, the re-
spondent owns and operates plants at Los Angeles, Redwood City,
Pittsburg, Watson, and Lompoc, California. The Lompoc plant, the .
only one with which these proceedings are concerned, occupies 5,000
acres of land on which the respondent is engaged in the quarrying
and processing of diatomaceous earth from which it manufactures
various filtration materials, filter admixtures, and insulating mate-
rials consisting of natural and pressed brick. The filtration products
are distributed directly by its own sales force and the insulation
materials are distributed generally through private dealers and dis-
tributors. An average of 260 persons are employed by the respondent
at the Lompoc plant, of which 198 are engaged in production and
maintenance.
In 1937 the respondent shipped from its Lompoc plant approxi-
mately 73,000 tons of manufactured products, 89 per cent of which
were consigned to points outside the State. of California. The gross
value of these products was in excess of $1,000,000. During the
same year, it purchased supplies consisting mainly of sacks and other
containers for its products, which amounted to approximately $400,-
000, one-fourth of which calve from outside the State of California.
II. THE ORGANIZATIONS INVOLVED
Lompoc Celite Workers, Local'No. 439, is a labor organization affili-
ated with the International Union of Mine, Mill and Smelter Work-
ers, which in turn is affiliated with the Committee for Industrial
Organization,9 herein called the C. I. O. It admits to membership
9 Now the Congress of Industrial Organizations.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the production and maintenance employees of the respondent at
its Lompoc plant.
Celite Manufacturing Employees is a labor organization affiliated
with the American Federation of Labor, admitting to membership
all production and maintenance employees of the respondent at its
Lompoc plant.
III. THE- ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of events
On July 30, 1937, the respondent posted in its plant a notice to its
employees. This notice set forth the respondent's approval of the
principles of collective bargaining, stated its intention to abide by
the Act, and requested the cooperation of the employees in "employ-
ing the mechanisms which it [the Act] established for the peaceful
settlement of differences." A month or so later, the employees of
the respondent formed an organization known as the Independent
Celite Workers Association, herein called the Independent, which on
or about November 12, 1937, was accorded recognition by the respond-
ent as the collective bargaining agent of its employees.ao
In November 1937 the respondent deemed it necessary to curtail
operations due to the then current business recession. Forty-nine
employees were laid off during that month. This lay-off and the
problem of curtailment of production generally were the subject of
discussion at a meeting between the respondent and the Independent
on December 3, 1937, at which time the respondent announced that
it found it necessary to reduce employment to a 4-day-week basis,
starting December 511
On December 14, 1937, C. J. Powers, a representative of the Inter-
national, addressed a meeting of members of the Independent at the
request of its president, E. P. Thompson, an employee of the respond-
ent. At this meeting, 75 of the 96 members present voted to affiliate
with the International. This meeting marks the beginning of the
International's efforts to organize the employees at the respondent's
plant.
On December 16, 1937, the respondent again posted a notice of
policy similar to that posted on July 30, 1937. On December 21, 1937,
the respondent called a meeting of its employees, at which Christmas
10 On November 1, 1937 , the Independent filed a charge with the Regional Director alleg-
ing a refusal by the respondent to recognize and meet with the representatives of the Inde-
pendent for the purposes of collective bargaining . Thereafter, the respondent explained to
a representative of the Board that its reply to the Independent's letter requesting recogni-
tion was inadvertently delayed due to a change in plant managership and that it had since
met the representatives of the Independent . So far as the record shows the above charge
was withdrawn.
11 Prior to this time , employment had been on the basis of a 5-day week.
JOHNS-MANVILLE PRODUCTS CORPORATION 903
bonus checks were distributed and an address was delivered by
Alexander Cromwell, vice president of the respondent in charge of
Pacific Coast operations. Cromwell gave a brief history of. the
respondent's operations at Lompoc and elsewhere, pointed out the
effect the business recession was having on the Lompoc operations,
and discussed the Act and the respondent's agreement with its- policy.
The same evening, the employees of the respondent held a meeting for
the purpose of discussing the division of opinion which existed
among them as to what labor organization they desired to represent
them. Some employees favored a continuance of the Independent;
many preferred affiliation with the International ; others were desir-
ous of an organization affiliated with the American Federation of
Labor. The meeting was conducted as an open forum and representa-
tives of both the International and the American Federation of
Labor were afforded an opportunity to express their views. At this
meeting Thompson resigned as president of the Independent. With
this meeting organizational activities by the C. M. E. commenced.
For several months thereafter both organizations were engaged in
rival organizing activities. In the latter part of January 1938 the
respondent felt that the efficiency of its operations was being ad-
versely affected by the afore-mentioned activities, and on January
29, 1938, posted a notice to its employees setting forth rules prohibit-
ing the distribution of printed material or the solicitation of mem-
bership to any "welfare, religious, fraternal, or labor organization"
during working hours or in operating areas. The record does not
show any discriminatory application by the respondent of these rules
in favor of or against either of the rival organizations.
On December 29, 1937, the respondent made a further lay-off of 13
employees, including Thompson, former president of the Independ-
ent, which increased to 25 the total lay-offs for the month of Decem-
ber. On January 3, 1938, the International filed charges with the
Regional Director alleging in part the discriminatory discharge of
-Thompson, George Hopkins, John Thomas Bishop, and Theodore
Storey.12 On January 5, 1938, at the request of the Regional Direc-
tor, the respondent held a conference with a grievance committee of
the International composed of Powers, Thompson, and Ben Acquista-
pace, another employee laid off on December 29, 1937. The respond-
ent was represented by Cromwell, O. B. Westmont, factory manager,
and R. B. McClellan, manager of the respondent's industrial rela-.
tions'department, and offered in detail the reasons for the termination
of employment of not only Thompson and Acquistapace, but of eight
22 See footnote 6, supra.
247384-40-vol. 1.7--58
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees who were members of the International.13 As a
result of the conference, it was agreed that the International would
withdraw its charges upon the offer of reemployment to Thompson.
Acquistapace, and Webster.14 On January 10, 1938, Thompson and
Acquistapace were reemployed, but Webster declined to accept the
respondent's offer. On February 25, 1938, the Regional Director noti-
fied the respondent that the charges had been withdrawn.
During the months from January through May 1938 the respondent
mailed to each of its employees six printed pamphlets outlining its
policies relative to collective bargaining, wages, the closed shop, work-
ing conditions, and hours of work. The pamphlets were general in
nature and under the circumstances could not be considered as inter-
fering with the self-organization of its employees.
In June 1938 prior to the election directed by the Board on July
8, 1938, a continued decrease in the respondent's sales and a corre-
sponding increase in its inventories led the respondent further to
curtail its operations and 58 employees were laid off during that
month.
B. The alleged interference, restraint, and coercion
While there is testimony in the record that the respondent had
expressed hostility toward the International, largely through the anti-
union statements of its supervisory employees, such testimony is in
direct conflict with that adduced by the respondent. In his Inter-
mediate Report, the Trial Examiner set forth in great detail all the
pertinent testimony, resolving virtually all conflicts therein in favor
of the respondent, and stressing his observation of witnesses called
to testify by the Board and his inability to give credence to their
testimony. It would serve no purpose here to repeat all the testimony
so fully set forth by the Trial Examiner, inasmuch as we see no-
reason, on the basis of the record, for disregarding his findings as
to the credibility of the witnesses. Accordingly, we find that the
respondent has not interfered with, restrained, or coerced its em-
ployees in the exercise of their rights guaranteed in Section 7 of the
Act.
C. The discharges and lay-offs
The record establishes that during the period in which the alleged
discriminatory discharges and lay-offs occurred the volume of the
respondent's business decreased and its inventories increased, and
18 Morton W. Webster, William L. Pratt, Bruce Pope, Edward John Higgins, John Thomas
Bishop, O. B. Luckie, E. C. Barnett, Jr., and Kermit R. Basbam.
14 Without admitting any violation of the Act, the respondent agreed to offer reemploy-
ment to Thompson as a warehouseman , and to Acquistapace and Webster as quarrymen.
At no time was there a request by these employees for reinstatement to their former posi-
tions , which at the time of the hearing remained unfilled.
JOHNS-MANVILLE PRODUCTS CORPORATION 905
that the working force was reduced as a result thereof. Since the
-record does not show that the respondent curtailed its operations to
interfere with the self -organization of its employees , any unlawful
discrimination against members of the International would have to
be found in the manner in which the respondent selected employees
for discharge or lay-off.
Two other matters of general importance bear upon most of the
'individual lay-offs and discharges alleged in the complaint . Firstly,
it is the established practice of the respondent in determining lay-
-offs and discharges to consider not only seniority , but also ability,
including adaptability to transfer from one department to another as
the character of the respondent 's operations occasionally required,
marital status, number of dependents , and residence within or with-
out the State, preference being accorded those residing within the
'State. Secondly , the Trial Examiner found that the testimony relat-
ing to an expressed hostility by the respondent toward the Inter-
national was offered by witnesses to whom he accorded no credibility.
Since the record contains no evidence warranting the disregarding
of the findings of the Trial Examiner as to the credibility of wit-
nesses, we find that the respondent had manifested no antagonism
toward the International other than might be found in the manner
of, and the circumstances surrounding , the discharge and lay-off of
its members.
1. The December discharges and lay-offs
E. P. Thompson, William L. Pratt, Edward John Higgins, John
Thomas Bishop, E. C . Barnett, Jr., Ben Acquistapace , Bruce Pope,
and Kermit R. Bashamn, were among the 25 employees laid off in
December 1937 . All were laid off on December 29, with the excep-
tion of Bishop who was discharged on December 23, 1937. Their
cases were fully discussed at the conference between the respondent
and the International on January 5, 1938, at which time the Inter-
national accepted as satisfactory the reasons advanced by the re-
.spondent for their dismissal , and upon the reemployment of Thomp-
son and Acquistapace was later permitted to withdraw the charges
it had filed with the Regional Director ?" With the exception of
Thompson , so far as the record shows , the only union activity at-
tributed to these employees was the fact that they had joined the
International . There were 18 employees laid off in December 1937
after the advent of the International on December 14, and 56 prior
thereto during the months of November and December . None of
these 18 employees laid off in December were members of the Inter-
national , a fact insufficient to support an inference that the respond-
11 See footnote 6, supra.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent availed .itself of the opportunity afforded by the curtailment of
operations to rid itself of International members since there was,
no showing in the record that such lay-offs were disproportionate
to the number of members in the International as compared with
the total number of employees. Furthermore, the record does not
show that the criteria for determining lay-offs were discrimina-
torily applied by the respondent against members of the Interna-
tional. Thompson was single with no dependents and the last man
hired in the machine shop. Although he was responsible for the
advent of the International. and was an officer thereof, a finding that
Thompson's release was occasioned by his union activity is not war-
ranted, in the absence of credible evidence showing hostility to the
International by the respondent or its disapproval of his union
activity. Barnett had been employed by the respondent for only
8 months. In addition, Barnett was considered by the respondent
to be an exceptionally good worker, and for this reason was one of
three former employees rehired in April 1938. Acquistapace had
no seniority in the garage and work was unavailable in the quarries
where he had formerly been employed driving truck. He was re-
employed ,is a result of the agreement concluded between the re-
spondent and the International on January 5, 1938, at common
labor, employment which the respondent had not offered to him at.
the time of his lay-off because its experience had shown that assign-
ing skilled employees to common labor jobs was unsatisfactory.
Acquistapace voluntarily quit on June 11, 1938. Pope and Basham
were the last men hired in the excavation department, having been
employed by the respondent for the first time in April 1937. The
work of both men was considered satisfactory. Basham was rehired
on January 29, 1938, and the respondent stated its willingness to
.rehire.Pope when business conditions. permitted.
Bishop, Pratt, and Higgins, were selected for lay-off for additional
reasons entirely unrelated to their membership in the International.
Bishop was a fifth-class machinist senior on machine work only to
Roberts, a first-class machinist. For some time prior to the advent
of the International, Bishop had been dissatisfied with the rate of
his advancement in the machine shop. This dissatisfaction became
so great that it was reflected in the quality of Bishop's work. He
would wander around the shop during working hours disturbing
others with his criticism of the respondent, of his foreman, Tony
Avila, and of the work of those having a higher rating than him-
self. Bishop admittedly was warned a number of times about
neglecting his work, and on one occasion was called into the office
of Harry Betaque, plant engineer, where he apologized for making
remarks concerning the granting of leave privileges to Avila by the
JOHNS-MANVILLE PRODUCTS CORPORATION 907
respondent. When work became slack in the machine shop due to
the general curtailment in operations, Bishop was selected for lay-
,off because of his dissatisfaction and conduct set forth above.
Pratt and Higgins were operating a power shovel at the time of
their transfer to truck driving in the latter part of November 1937.
Both were aware that their transfer was forthcoming, and expressed
their intention of securing jobs as shovel operators elsewhere. On
November 24 and 26, 1937, H. U. Gaggs,`'superintendeiit"•of excava-
tion, wrote letters to friends associated with another company in
an effort to assist them in obtaining other shovel operating em-
ployment. Despite the knowledge that their transfer was due to
the curtailment in excavation operations, Pratt and Higgins ex-
pressed their dissatisfaction with the change. Pratt demanded a
bulldozing job for which he was unqualified, and Higgins protested
that he was a better operator than another employee retained on
shovel operations. Pratt also threatened to enter Gaggs' office to
examine the service records, and disrupted the trucking crew by
persuading them to report for work later than had been their cus-
tom Is On December 16, 1937, Pratt and Higgins received. an over-
payment in their pay checks which they failed to bring to the at-
tention of the respondent. On December 20, 1937, both Pratt and
Higgins went to Bishop, California, to take the California State
Civil Service Examination for power-shovel operators. At their
request, Gaggs gave both men service letters in which he stretched
their experience to aid them in meeting the civil service require-
ments. It was because of the foregoing considerations that the re-
spondent was unwilling to release others in preference to Pratt and
Higgins in the lay-off which followed.
2. The April discharges-
Aldon C. Burrill. and Elmer Denny joined the International in
January 1938, but engaged in no other union activity. On April 21,
1938, Burrill was transferred from the garage to the sack room.
Although his new duties were no more arduous than those he had
been performing in the garage, Burrill objected to his new assign-
ment because of a back injury. received in 1933 and requested sev-
'eral days leave to see his attorney and to "get straightened out."
He was granted leave for half a day, but failed to report for work
until 4 days later, on April 26, 1938, at which time he was informed
,of his removal from the pay roll. Denny was discharged on April
23, 1938, for insubordination. The relationship between Denny and
16 It was the practice of truck drivers to report to the garage at 7 : 30 a. m. In order to
have their trucks under the power shovels at 8: 00 a. m., their regular time for commencing
work.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his foreman, Carl' Dennis, had become strained due to previous dis-
agreements, and Dennis finally requested his release following a
heated . argument over the quality of his work. Although there
might be some doubt as to whether Burrill and Denny merited dis-
missal, there was nothing in the circumstances surrounding their
discharge which related to their membership in the International.
3. The June discharges and lay-offs
E. C. Barnett, Jr., E. P. Thompson, Kermit R. Basham, Robert
Hardin, Reginald Tognetti, Glen Page, Theodore Jones, Louis
Archuleta, Hubert Donley, Rayburn Donley, R. A. Roberts, William
McCormack, Dalos Graf, Edward Walkingstick, J. T. Rogers,.
Harold Elwin Lovelace, Raymond C. Hall, Harold Van Meter,
Claude Van Meter, and Frank Farren, were among the 58 employees
laid off from June 4 to July 1, 1938. A majority of these employees
were engaged in the brick operations which, due to the unusually
high inventories and decreased shipments in this particular depart-
ment, were completely shut down as a part of the general curtail-
ment in production. Again with the exception- of Thompson, so
far as the evidence shows, the union activity of the above persons
was confined to membership in the International. The president,
vice president, and financial secretary, and many other members of
the International were retained by the respondent. Also, 23 of the
58 employees released were members of the C. M. E. Under these
circumstances a finding that the respondent was taking advantage
of the lay-off to select for dismissal members of the International in
preference to 'those belonging to the C. U. E. is not warranted.
There is also no other evidence in the record to warrant a finding
that the Company assisted the C. M. E. in its organizational activities.
The selection of Thompson and, Barnett for this second lay-off was
determined by the same factors which led to their lay-off in Decem-
ber 1937. The selection of the other employees laid off in June was
also made in accordance with the normal considerations and pro-
cedure used by the respondent in releasing employees. Walkingstick,
Rogers, Harold Van Meter, Hubert Donley, Rayburn Donley, McCor-
mack, Claude Van Meter, Jones, and Archuleta were all hired in 1937,
which comparatively short period of service was a determining factor
in their lay-off. In addition to their short period of service, all the
foregoing employees with the exception of Walkingstick, Rogers, and
McCormack were from outside the State. Hall was single. Hall,
Walkingstick, Rogers, Claude and Harold Van Meter, and Hubert
and Rayburn Donley were employed in brick operations and had no
mill experience justifying a transfer to that department. The work
JOHNS-MIANVILLE PRODUCTS CORPORATION 909
of - McCormack and Harold Van Meter was below the average of
others retained.
Although Tognetti, Page, Graf, Hardin, Roberts, and Farren had,
longer periods of service, their release, so far as the record shows,
was determined on the basis of other non-discriminatory factors.
Tognetti, Farren, and Graf, were single with no dependents. Hardin
also was single and was from outside the State, which facts had
occasioned his lay-off in November 1937. He had been rehired in
February 1938. Roberts was an older man who had been transferred
from the machine shop in April and assigned to janitor work in the
mill. Although he was aware that the lack of work in the machine
shop was the cause of his transfer, Roberts, being a skilled employee,
was dissatisfied with his demotion to common labor. He was known
to be contemplating moving to Los Angeles, and this fact coupled
with his physical incapacity for work in the mill other than as a
janitor was responsible for his dismissal. Page had the greater part
of his experience in brick 'operations and in ability rated below others
retained by the respondent. Lovelace refused to go with his crew
when it was assigned to mill work following the curtailment in exca-
vation operations, and told his foreman that he "would as soon be
fired as go to the mill." Accordingly, he was laid off. Basham did
not testify, and so far as the record shows, voluntarily quit his em-
ployment to accept a position elsewhere.
We find that the respondent has not discriminated in regard to
the hire and tenure of employment of the employees listed in Appen-
dix A,11 and has not discouraged membership in a labor organization.
IV. THE ELECTION OF JULY 8, 1938
The International based its protest of the election held on July 8,.
1938, solely upon the unfair labor practices of the respondent alleged
in the complaint. Since we have found that the respondent did not
engage in the unfair labor practices alleged in the complaint, it fol-
lows that the results of the election reflected the free choice of the.
employees. Furthermore, nearly all of the employees separated from
the respondent's pay roll in June 1938, had been employed on Feb-
ruary 27, 1938, the date fixed by the Board for the determination
of eligibility of employees to vote. Seven of the 23 members of the
C. M. E. laid off in June and 11 of the 17 eligible members of the
International named in the complaint, who were laid off in June,
voted in the election. The fact that the remaining eligible employees
who were laid off did not avail themselves of the opportunity to vote
cannot be attributed to any unfair labor practices on the part of the
17 All the employees discussed above are listed in Appendix A.
- 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent. Therefore, in accordance with the election results, we
shall certify the C. M. E. as the representative of the respondent's
employees for the purposes of collective bargaining.
. Upon the basis of the above findings of fact, and upon the entire
record in the cases, the Board makes the following :
CONCLUSIONS OF LAW
1. The operations of the respondent occur in commerce, within, the
meaning of Section 2 (6) of the Act.
2. Lompoc Celite Workers, Local.No. 439 of the International
Union of Mine, Mill, and Smelter Workers, affiliated with the C. I. O.
and Celite Manufacturing Employees (A. F. of L.), are labor organi-
zations, within the meaning of Section 2 (5) of the Act.
3. The respondent has not discriminated in regard to the hire and
tenure of employment of the employees named in Appendix A, and
has not discouraged membership in a labor organization, within the
meaning of Section 8 (3) of the Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint against the respondent, Johns-Manville Products Cor-
poration , Lompoc, California , be, and it hereby is , dismissed.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act and pursuant to Article III, Sections 8 and 9, of
National Labor Relations Board Rules and Regulations-Series 2,
IT IS HEREBY CERTIFIED that Celite Manufacturing Employees, affili-
ated with the American Federation of Labor, has been designated
and selected by a majority of the production and maintenance em-
ployees of Johns-Manville Products Corporation, at its. Lompoc,
California, plant, excluding supervisory employees, laboratory work-
ers, engineers, and office and clerical workers, as their representative
for the purposes of collective bargaining and that, pursuant to Sec-
tion 9 (a) of the National Labor Relations Act, Celite Manufactur-
ing Employees, affiliated with the American Federation of Labor, is
JOHNS-MANVILLE PRODUCTS CORPORATION 911
the exclusive representative of all such employees for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
APPENDIX A
Ben. Acquistapace Theodore Jones
Louis Archuleta Harold Elwin Lovelace
E. C. Barnett, Jr. William McCormack
Kermit R. Basham Glen Page
John Thomas Bishop Bruce Pope
Aldon C. Burrill William L. Pratt
Elmer Denny R. A. Roberts
Hubert Donley J. T. Rogers
Rayburn Donley E. P. Thompson
Frank Farren Reginald Tognetti
Dalos Graf Claude Van Meter
Raymond C. Hall Harold Van Meter
Robert Hardin Edward Walkingstick
Edward John Higgins.
MR. WILLIAIII M. LEISERSON took no part in the consideration of
the above Decision, Order, and Certification of Representatives.