Manville Jenckes Corp.

National Labor Relations Board - Board Decisions

Mar 17, 1941

30 N.L.R.B. 382 (N.L.R.B. 1941)

In the Matter Of MANVILLE JENCKES CORPORATION and WOONSOCKET
RAYON COMPANY and INDEPENDENT TEXTILE UNION OF AMERICA
Case No. C-1659.-Decided March 17, 1941
Jurisdiction : rayon manufacturing industry.
Unfair Labor Practices
In General: employers held responsible for the abortive back-to-work movement
undertaken by certain, of its employees and for the activities of the local
Chamber of Commerce furthering said movement ; parent corporation held
responsible with its subsidiary for the unfair labor practices of the subsidiary.
An employer is responsible under the Act for anti-union action prosecuted
with its connivance or assistance by other persons or agencies in, the
community even though such persons or agencies have no pecuniary stake
in the employer's business.
Interference, Restraint, and Coercion: soliciting individual employees during
the pendency of a strike to return to work on its own terms, in disregard
of the decision of the union and authority of the union leadership; promising
rewards if they so returned; sponsoring and supporting back-to-work move-
ment ; causing and joining with the local Chamber of Commerce in the publi-
cation of anti-union newspaper advertisements aimed in part at causing
striking employees to repudiate their union and return to work; seeking
through said advertisements to induce public action against its employees'
union ; undercutting the authority of union ; threatening employees with loss
of employment if they remained on strike ; electioneering with respect to
and interfering with a proposed consent election to determine representatives
Discrimination: refusal to reinstate striking employees.
Strike economic in origin held converted into unfair labor practice strike
by employers' failure to bargain in good faith and became 'a remedy "paral-
lel with recourse to the Labor Board," making employer's right to select
employees at termination of the strike "vulnerable."
Collective Bargaining: designation of majority by membership in union ; desig-
nation not affected by renunciations caused by employer's unfair labor prac-
tices-failure to negotiate in good faith : entering into negotiations with no
sincere intention to end difference; failure to make concession or counterpro-
posals; failure to have representative available following president's depart-
ure for Europe ; failure to substantiate position with respect to financial
ability to grant wage increases ; effecting change in wages after refusal
to do so upon request of labor organization; insistance upon acceptance of
terms discrediting the labor organization; failure to negotiate during shut-
down. -
Assertion of doubt as to union majority as excuse for refusal to bargain
after meeting with union for five months on the assumption of existing
majority constitutes a refusal to bargain within the meaning of Section
8 (5).
30 N. L. R. B., No. 60.
382
MANVILLE JENCKES CORPORATION 383
Remedial Orders : employers ordered to bargain collectively; reinstatement and
back pay awarded striking employees discriminatorily refused reinstatement
and discharged ; employees who did not desire reinstatement and another em-
ployee who desired reinstatement only on a condition which he was not
entitled to impose, not ordered reinstated and back pay not awarded since
it did not appear when they no longer desired reinstatement ; employee who
refused to accept reinstatement to position different from that which he held
prior to the strike held not to preclude him from reinstatement to his former
position.
Definitions
Parent corporation acting "in the interest of an employer" viz : the sub-
sidiary corporation, when engaging in unfair labor practices, held an
employer within the meaning of Section 2 (3) of the Act.
Evidence
Held : Evidence of renunciation of union authorization in the presence
and at the instance of an employer, uncorroborated by other facts is of
doubtful verity and of little evidential value since the polling of witnesses
under such circumstances is likely to interfere with a free expression of
choice of representatives.
Unit Appropriate for Collective Bargaining : all employees excluding office,
clerical, and supervisory employees, laboratory workers, employees in the rayon
inspection department, analysts, employees in the spinnerette laboratory,
candle filter wrappers, truck drivers, janitors, and nurses.
Mr. Albert J. Hoban, for the Board.
Edwards cC Angell, by Mr. Kirk Smith, Mr. Elmer E. Tufts, Jr., and
Mr. Edward R. Richards, of Providence, R. I., Mr. John R. Higgins,
of Woonsocket, R. I.; and Mr. Joseph B. Keenan, of Washington,
D. C., for the respondents.
Grant & Ango ff, by Mr. Samuel E. Ango ff, of Boston, Mass., for the
Union.
Mr. Malcolm A. Hoffmann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Independent Tex-
tile Union of America,' herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the First Region (Boston, Massachusetts), issued its complaint,
dated March 29, 1940, against Woonsocket Rayon Company, Woon-
socket, Rhode Island, herein at times referred to as the Rayon Com=
pany, and against Manville Jenckes Corporation, Manville, Rhode
' Sometimes referred to in the record as the I T U
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Island, the two corporations being herein at times collectively called
the `respondents, alleging that the respondents had engaged in and
were engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. The complaint and notice of Bearing were duly served upon
the respondents and the Union. At the, hearing, mentioned below,
the complaint was amended in certain respects.
The complaint, as amended, alleged in substance (1) that the Rayon
Company is a subsidiary corporation of, and is owned, operated, and
controlled by Manville Jenckes Corporation; that on or about Feb-
ruary 23, 1939, and thereafter, the respondents refused to bargain col-
lectively with the Union, in that the respondents at various specified
times entered into negotiations with the Union in bad faith and without
the purpose and intention of bargaining collectively, and on and after
September 21, 1939, refused to meet further with the Union for pur-
poses of collective bargaining, although the Union on or about Feb-
ruary 20, 1939, and thereafter, was the statutory representative of all
employees of the Rayon Company employed at its Woonsocket-plant,
exclusive of office, clerical, and supervisory employees and laboratory
workers, and said employees constituted a unit appropriate for collec-
tive bargaining; (2) that from on or about March 1 to March 25,
and from on or about September 1 to September 25, 1939, and there-
after, the respondents approached employees individually concerning
working conditions instead of approaching them through the Union,
then acting as their duly designated representative, and solicited said
employees to return to work during the pendency of a strike being
conducted by the Union; (3) that on or about March 17, 1939, the
respondents initiated, supported, and conducted a "Back-to-Work"
movement, and caused a "Back-to-Work" petition to be circulated
among the employees atthe Woonsocket plant for the purpose of break-
ing said strike and avoiding bargaining collectively with the Union;
(4) that on or about February 20, March-17, April 20, and September
20, 1939, and between said dates and thereafter, the respondents made,
issued, and caused to be made and issued to employees at the Woon-
socket plant, oral and written statements and newspaper advertise-
ments discouraging said employees from becoming and continuing to
be members of the Union; (5) that on or about September 23, 1939,
the respondents advised and instructed these plant employees to vote
against the Union in any election conducted for the purpose of ascer-
taining whether the Union represented a majority of said employees,
warning them that if they voted for the Union the Woonsocket plant
would close; (6) that by their aforesaid acts and conduct, and by their
unfair labor practices, the respondents caused to be continued and
MANVILLE JENCKES CORPORATION '385
prolonged a strike of the employees at the Woonsocket plant; that on
or about October 19, 1939, the Union terminated the strike ; that on
or about October 23, 1939, and thereafter, 28 named employees,2 and on
or about November 2, 1939, and thereafter, 14 other named employees.3
applied for reinstatement to their positions at the Woonsocket plant;
that on or about October 23, 1939, the respondents discharged said 28
named employees, and on or about November 2, 1939, discharged said
14 other named employees, and have since refused to reinstate all said
employees to their former positions, because of their membership in
and activities in behalf of the Union, and because they engaged in con-
certed activities with other employees at the Woonsocket plant for the
purpose of collectively bargaining or other mutual aid or protection,
the respondents thereby discriminating in regard to their hire and
tenure of employment and discouraging membership in the Union; (7)
that by the foregoing acts, and each of them, and by other acts and
conduct, the respondents interfered with, restrained, and coerced their
employees in the exercise of rights guaranteed in Section 7 of the Act.'
On May 10, 1940, the respondents each filed an answer to the com-
plaint, as amended, denying that they had engaged in any of the unfair
labor practices alleged in' the complaint, as amended. Manville
Jenckes Corporation averred that it was without knowledge as to
whether the bargaining unit alleged in the complaint, as amended,
was appropriate, or whether the Union represented a majority of the
Woonsocket plant employees within an appropriate collective bargain-
ing unit. The Rayon Company in its ansrier admitted the appropri-
ateness of the unit alleged in the complaint, as amended; but at the'
hearing amended its answer by defining the laboratory workers whom
it would agree were excluded from the unit to be the trained chemists,
technicians, and executives of the plant laboratory. '
Pursuant to notice a hearing was held at Woonsocket, Rhode Island,
on May 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 and June 3, 4, 6, 7, 10, 11, 12,
13, 14, 18, 19, 20, and 21, 1940, before William B. Barton, the Trial
Examiner duly designated by the Board. The Board, the Union, and
2 The names of these employees with spelling conformed to the proof are • Stanley
Bokoski , Stephen Bokoski , E Boucher , John Chmiel , Joseph Curodeau , Michael Czarn,
Roland Desaulmers , Heive Desaulniers , Leo Garneau , H Greenhmd , Stephen Greenup,
Philippe Guertin. Anthime Guilbault, Paul Hetu, Rafael Lambe, David LaValle, Edward
LeClerc, Paul Mandeville, Jr, Henry Martell, George Morel, Walter Pasek, Leo Renaud,
Harvey Rabidoux , Roland Rocheford , Arthur Sheehan , Raymond Sheehan , John Solrna;
Stephen Wecal
3 The names of these emplo3 ees with spelling conformed to the proof are : Theodore
Beauchamps, Napoleon Durand, Noel Giguere, Carl Handrickson, John IIoothay, Carl'I,educ,
Florian Marquis, John Nordberg, Carl Peterson, Peter Pichie, Edmund Remillard, Magliore
Savoie. Alfred St Germain, David Wilson
4 The complaint , as amended , also alleged that the respondents discriminatorily dis-
charged and refused reinstatement to William St. Peter in violation of the Act. At the
hearing the allegations of the complaint , as amended , in this respect were stricken upon
motion of counsel for the Board
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondents were represented by counsel 5 and- 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. During the course of the hearing the Trial Examiner made
rulings on motions and on objections to the admission of evidence. He
denied a motion of the respondents made at the close of the Board's case
that the complaint, as amended, be dismissed in so far as it alleged that
Manville Jenckes Corporation had engaged in unfair labor practices.6
A similar motion made at the close of the hearing was denied in the
Trial Examiner's Intermediate Report, mentioned below. A motion
of the Board to amend the complaint in certain respects was granted
in the Intermediate Report. The Board has reviewed the foregoing
rulings of the Trial Examiner and finds that no prejudicial errors were
committed. These rulings are hereby affirmed. On August 7, 1940,
after the hearing, the Trial Examiner directed that certain corrections
be made hl the record in accordance with a stipulation previously filed
herein by the parties. The respondents and the Union submitted to
the Trial Examiner briefs in support of their respective positions!
Thereafter, the Trial Examiner filed his Intermediate Report, dated
August 15, 1940, finding that the respondents had engaged in and
were engaging in unfair labor practices, within the meaning of Section
8 (1), (3), and (5) of the Act, and recommending that the respondents
cease and desist from their unfair labor practices, that they bargain
collectively upon request with the Union as the statutory representa-
tive of employees at the Woonsocket plant, that they offer to 38 named
employees reinstatement to their former positions at that plant' and
make them whole for loss of pay suffered by reason of the respondents'
unfair labor practices,' and that they take certain other action to
remedy the situation brought about by the unfair labor practices which
he found.
On October 10, 1940, the Rayon Company filed exceptions to'the
Intermediate Report-and to the record,8 and on October 11, 1940, the
respondents submitted a brief in support thereof. On November 7,
1940, pufsuant to notice, a hearing was held before the Board at Wash-
ington, D. C., for the purpose of oral argument. The respondents and
the Union appeared, presented oral argument, and otherwise partici-
pated in the hearing. On November 19, 1940, the respondents sub-
mitted a Supplemental Memorandum, and on November 28, 1940, the
Union, a Reply to Supplemental Memorandum, in support of their
positions. The Board has considered the exceptions of the Rayon
The respondents were jointly represented by counsel
s See Section IV, infra
The names of these employees are set forth in Appendices B and C , attached hereto
and made a part hereof
3 No exceptions were filed by Manville Jenckes Corporation
I UANV'ILLE JENCKES CORPORATION 38;
Company to the Intermediate Report and to the record, the briefs and
arguments of the respondents in support thereof and of the Union in
opposition thereto, and, except in so far as they are consistent with the
findings, conclusions, and order set forth below, finds them to be with'-
cut merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TILE BUSINESS OF THE RESPONDENTS
Woonsocket Rayon Company is a Rhode Island corporation, engaged
in the manufacture, sale, and distribution of rayon yarns in cake form.
It maintains a manufacturing plant at Woonsocket, Rhode Island,
where the rayon yarns which it sells are produced. It is a wholly owned
subsidiary corporation of Manville Jenckes Corporation, a Delaware
corporation, which manufactures, sells, and distributes cotton and
rayon\woven fabrics. Officers of Manville Jenckes Corporation com-
prise all the officers and directors of the Rayon Company.° As set
forth hereinafter, Manville Jenckes Corporation directs and controls
the labor policies and relations of the Rayon Company 1e
During the year ending January 31, 1939, the Rayon Company
purchased for use in production at its Woonsocket plant the following
quantities of raw materials : more than 2,400,000 pounds of pulp-valued
in excess of $100,000, more than 1,000,000 pounds of carbon bisulphide
valued in excess of $42,000, more than 4,400,000 pounds of sulphuric
acid valued in excess of $35,000, and more than 2,800,000 pouunds of
caustic soda valued in excess of $61,000, approximately 59 per cent
by volume and 85 per cent by value of which were shipped to the plant
by common carrier from points outside the State of Rhode Island.
During this same period the Rayon Company sold more than 2,400,000
pounds of rayon yarn in cake form, valued in excess of $900,000, ap-
proximately 99 percent of which were sold and shipped from the
Woonsocket plant to Manville Jenckes Corporation at Manville, Rhode
Island. During the,yeor ending January 31, 1940, the Rayon Company
purchased for use in production more than 1,500,000 pounds of pulp
valued in excess of $57,000, more than 420,000 pounds of carbon bisul-
phide valued in excess of $16,000, more than 1,700,000 pounds of sul-
phuric acid valued in excessof $13,000, and more than,1,150,000 pounds
of caustic soda valued in excess of $23,000, approximately 65 percent
by volume and 88 per cent by value of which were shipped to the
One of these officers , Baker , died May 14 , 1940 , prior to the hearing. Before his death
the Rayon Company had four officers and four directors , all of whom were also officers
of Manville Jenckes Corporation
10 See Section IV, in fOa
440! . a---42 Vol .10---26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woonsocket plant from points outside the State of Rhode Island.
During this period the Rayon Company sold more than 1,000,000
pounds of rayon yarn in cake form valued in excess of $400,000,,
approximately 99 per cent of which likewise were -sold and shipped
to Manville Jenckes Corporation at Manville, Rhode Island. It thus
is shown and it is admitted that Manville Jenckes Corporation has
been for practical purposes the sole purchaser of the rayon yarns
produced by the Rayon Company.,
Manville Jenckes Corporation maintains ,t plant at Manville, Rhode
Island, where it manufactures its cotton and rayon woven fabrics.
The principal raw materials used by it in the course of manufacture
are raw cotton; cotton card strips, rayon yarn and rayon staple fibre.,'
During the year ending January 31, 1939, Manville Jenckes Corpora-
tion purchased more than 3, 800,000 pounds of cotton valued in excess
of $440,000, more than 1,600,000 pounds of cotton card strips valued in
excess of $130,000, more than 3,200,000 pounds of rayon yarn valued
in excess of $1,380,000, and more than 460,000 pounds of rayon staple
fibre valued in excess of $115,000, approximately 74 per cent by volume
and 52 per cent by value of which were shipped to the Manville plant'
from points outside the State of Rhode Island. During this period
it sold finished products valued at approximately $5,031,427, approxi-
mately 95 per cent of which were sold and shipped from the Manville
plant to customers at points outside the State of Rhode Island. Dur-
ing the year ending January 31, 1940, the Manville Jenckes Corpora-
tion purchased more than 7,300,000 pounds of cotton valued in excess
of $950,000, more than 1,800,000 pounds of cotton card strips valued
in excess of $159,000, more than 5,200,000 pounds of rayon yarn valued
in excess of $2,400,000, and more than 850,000 pounds of rayon staple
fibre valued in excess of $218,000, approximately 93 per cent by' vol-
ume and 89 per cent by value of which were shipped to the Manville
plant from points outside the State of Rhode Island. During this
period it sold finished products valued at about $6,800,000, approxi-
mately 95 per cent of which were sold and shipped from the Manville
plant outside the State of Rhode Island.
II. THE ORGANIZATION INVOLVED
Independent Textile Union of America is an unaffiliated labor or-
ganization, maintaining headquarters at Woonsocket, Rhode Island,
and comprising in membership all classes of workers, including those
employed by the Rayon Company. In February 1939 the Union
formed a local known as the .Woonsocket Rayon Local of the I. T. U.
admitting to membership persons employed by the Rayon Company
at its plant in Woonsocket.
11 It also uses some wool and flax.
MANVILLE JENCKES CORPORATION
III. THE UNFAIR LABOR PRACTICES OF THE RAYON COMPANY
389
A. The refusals to bargain with the Union; interference, restraint, and
coercion
1: The strike of the spinners on February 19, 1939,_ and affiliation of
the plant employees with the Union
On February 17, 1939, the spinners employed in the spinning de-
partment of the Woonsocket plant, acting through an employee
committee, requested the Rayon Company for an increase in wages
and a- decrease in the work load of their department.12 The Com-
mittee informed the president of the Rayon Company, one Lockhart,
that the employees were desirous of receiving the Company's reply
before the morning rotation of plant shifts 2 days later.13 Lockhart
asked that the Rayon Company be given more time, but this was
refused by the Committee, after consultation with the spinners."
Within an hour after receipt of the employees' request, Lockhart
communicated with Manville Jenckes Corporation and explained
the situation to the president of that corporation. The next day the
-Rayon Company, anticipating a possible strike of the spinners, cur-
tailed by 10-percent production preparations in the chemical depart-
ment of the plant. It made no effort, -however, to communicate either
with the spokesman of the spinners' committee,, one Greenup, who was
-at work in the plant or with the committee itself. The following,day,
at the change of shifts, the committee was informed by the overseer
of the spinning department that the Company had made no reply.
'Thereupon the employees in the spinning department ceased their
work and went on strike. Because of the functional interrelation
.and continuity of operations throughout the plant, the stoppage of
work in the spinning department resulted in an immediate cessation
,of all production work at the plant. We find that the strike of the
-employees in the spinning department on February 19 was economic
in origin, brought about by the desire of these employees to obtain
through concerted action an amelioration of their working conditions.
As more particularly set -forth hereinafter, production at the plant
remained in abeyance until on or about September 23, 1939.
On the -afternoon of February 19 substantially all the employees
,of the Rayon Company, including the spinners, met in a hall off the
premises of the plant, and, upon unanimous agreement of those pres-
'2 Prior thereto, in 1938, the Rai on Company had cut the wages of spinners, and by
-changing its manufacturing process had increased the pioduction load.
13 The record is not clear as to whether the employees sought a reply to their request
-or merely an undertaking by the Rayon Company to negotiate with the committee concern-
ing the request
'* One Greenup telephoned Lockhart's home the evening of February 14 and left woid
that the time fixed was unchanged Lockhart testified that that evening his maid received
an anonymous call to this effect and delivered the message to him.
I
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent, took steps toward organizing themselves into a local of the Union
to be known as the Woonsocket Rayon Local of the I. T. U. Between
February 19 and February 27, 1939, at least 158 employees of the
Rayon Company applied for membership in the Union, and thereby
designated that' labor organization as their collective bargaining
agency.
2. The appropriate unit
The complaint, as amended, alleges that all persons employed at
the Woonsocket plant, excluding office, clerical, and supervisory em-
ployees, and laboratory workers, constitute a unit appropriate for
collective bargaining. This unit conforms substantially to the unit
that we have found appropriate for collective bargaining in other
cases.15 We find that this unit was and is, in general outline, appro-
priate ,for collective bargaining.
The Rayon Company concedes the appropriatenes's in definition of
the alleged collective bargaining unit, but questions the propriety of
excluding certain employees from and including others within this
unit. It urges that 10 employees," of the control laboratory, 4 of
whom work in the rayon inspection department and the remaining 6
of whom are denominated as "analysts" come and have been within
the general unit and may'not properly be excluded therefrom. Those
in the rayon inspection department inspect samples of rayon yarn
gathered daily from regular production. One determines by ma-
chine the tensile strength of the yarn; another, the capacity of the yarn
to stretch; the two others visually inspect samples. The analysts
perform certain laboratory tests to analyze the viscose solution and
collect other chemical data. Al110 employees work in rooms separated
from production workers. All except one 11 are paid on a salary basis
instead of on the hourly rte paid the production and maintenance
workers, and the one who is not paid a salary is an employee trans-
ferred from another department to the inspection department and
her basis of pay has not yet changed. The Union does not claim to,
represent these workers. We are of the opinion that the employees
who work in the rayon inspection department or who work as analysts
do not properly come within the.unit which is essentially composed
15 Matter of Grayson Heat Control, Ltd and United Elcctiical , Radio t Machine Workers
of America , Local No. 1421, C 1 0 , 14 N . L R B 491 ; Matter of Southern Chemical
Cotton Company and Textile Worriers Ooganozinq Committee , 3 N L R B 869 , Cf Matter
of U S Testing Co., Inc and Federation of Architects , Engioieeis , Chemists ct Technicians,
C 1 0 , 5 N L R B 696. 699; Matter of Hoffman Beverage Company and Joint Local
Executive Board of International Union of United Breicery, Flour, Cereal, and Soft Drink
Workers of America, 3 N. L. R. B. 584; but See S Matter of the B F Goodrich Company
and United Rubber Worriers of America, Local No 43, 3 N L R B 420.
"These 10 are Claire Gobeille, Elizabeth Breault, Rachel Martel , Mary Corrievi, Anna,
Cove , George Lennox , John Gi ay, Vito I'ierannunzi , Ralph Whipple, and Elizabeth Conley._
17 The name of this employee is Mary Cori levi
MANVILLE JENCKES CORPORATION 391
of production workers. Their work, and consequently their interests
as employees, are those of laboratory workers, who, the parties agree,
are and were properly excluded from the general unit. Here, this
difference in employee interest between the inspection department
employees or analysts and the production employees is further shown
by the separation of work sites and the variation in method of com-
pensation.'s For similar considerations, the employees of the spin-
nerette laboratory are, and have been, without the general unit.19
These employees work in a room partitioned from the rest of the
plant, where they clean, dry,. and assemble spinnerettes. They are
paid on a salary basis. The Union has not sought to represent them.
The differences in their employee interests resulting from differences
in situs of work and method of compensation establish the impropriety
of their being considered within a unit of production workers, par-
ticularly where organization has excluded them.
The Union states that the following employees, Louise Gauvin, W.
Pelletier, John Cornell, J. Wheeler, and G. Lemieux, are not within
the unit. The respondents agree that Pelletier is not within the
unit, but urge that the others are.20 Gauvin's job is -to wrap cloth
around the core of the candle filter before the core is inserted into the
filter, and to cut cloth into sizes necessary for use in the filtering
process in the plant. She works in a room adjacent to the spinner-
ette laboratory, separate from the other employees, and is paid on a
salary basis. We find that Gauvin appropriately, is not and has not
been within the unit. John Cornell, a machinist, works nmder the
supervision of _ one of the Rayon Company's research technicians.
He is paid, however, on an hourly basis as are other machinists, and
works in the same machine shop using the same lathes and tools.
Wheeler and Lemieux are employed in the water plant, where they are
charged with the'task of sending water through automatic feeds.,
Wheeler, also, checks in employees at the gate on the midnight shift,
a routine duty occupying only a small part of his time and insufficient
to distinguish him from other employees. The work done by Wheeler
and Lemieux is an integral part of the production process and they are
paid on an hourly basis as are other production employees. Conse-
quently, Cornell, Wheeler, and Lemieux, because of the close approxi,
oration of their interest to those of the plant production employees,
properly come, and were, within the unit we have found in general
to be appropriate. .
The record contains some controversy as to whether John Chad-
wick, Anna Shea, Edward Demarais, Neal Blackwood, and Morris
i8Cf Matter of ,Southern Chemical Cotton Company 'and Textile Workers Organizing
'Committee, 3 N. L. R. B 869.
10 The record discloses the names of two such employees . Rena Remillard , Priscilla
Powers.
11 Pelletier is a truck driver, the only one at the plant , and clearly is not within the unit.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Norman come Within the general unit. John Chadwick is employed
as office janitor to clean the office at the plant, wash windows, and cut,
grass. He works alone at night and 'is paid on a salary basis. Anna
Shea is the plant nurse. The duties of Demarais and Blackwood,
hereinafter set forth'21 are of a supervisory and clerical nature. The
Union states that these employees, apart from Norman, are not within
the above unit, and the respondents in their brief agree that there is a
reasonable basis for not finding these employees within such unit.
We find these four employees to be and to have been outside the unit.
The record does not disclose Norman's. duties, but it does reveal that
Norman signed a notice to refrain from discussing union activities,
which was circulated by the Rayon Company among its supervisory
employees and others close to management. In the absence of other
evidence concerning Norman's duties, we find that Norman is a super-
visory employee and is excluded from the unit.
The Union also states that, eight employees 22 whose names appear
on the pay roll of February 18, 1939, are not in the unit because of
the temporary character of their employment, but contends that three
,other temporary employees whose mimes do not appear on the pay
roll of February 18 are within the unit.23 There appears to be no
substantial basis for differentiating between these two groups of
temporary employees. In accordance with the usual rule, we find
that all these temporary employees were not within the unit.24 We
also find that another employee, Leo Tremblay, was a temporary
employee, and that he, too, was not within the unit.
We find that all employees of the Rayon Company at the Wooli-
socket plant excluding office, clerical, and supervisory employees,
laboratory workers, employees in the rayon inspection department,
analysts, employees in the spinnerette laboratory, candle filter wrap-
pers,25 truck drivers, janitors, and nurses, constitute, and at all times
herein material constituted, a unit appropriate for the purposes of
collective bargaining, and that said unit insures to employees of the
Rayon Company the full benefit of their rights to self-organization
and 'to collective bargaining and otherwise effectuates the policies of
the Act.
21 See note 45, infra
These eight are A. Gourchesne , W. Etherington , J. Lowandoski , R. Brown, H Woolfall,
T. Weldon , C. Dixon, and J . Redman.
xs These three are J. Boucher, Fleur-Ange La Pierre , and R. Lamontagne
,u See e . q Matter of Southern Chemical Cotton Company and Textile Workers Organiz-
ing Committee, 3 N. L.,R B. 869 , 875: Matter of Superior Felt and Bedding Company and
Local No 173 International Upholsterers Union , affiliated with the American Federation
of Labor, 14 N L R B. 835, 837-8; Matter o f Wilson d Co , Inc and Local No. 37, United
Packinghouse Workers of America, of P W. 0. C. affiliated with C. I. 0., 15 N. L. R. B.
195, 199. -
25 The term "candle filter wrapper " designates the employee who wraps cloth around
the core of the candle filter and cuts cloth for use in the filtering process.
MANVILLE' JEIVCKES CORPORATION 393
3. Representation by the Union of a majority in the appropriate unit
The two hundred and two employees within the unit above found
to be appropriate were employed by the Rayon Company on February
18, 1939,26 the day preceding the strike of the spinners. Because of
the cessation of production at the Woonsocket plant from February
19' until September 23, 1939, no production work was performed at
the plant during this period by any of the 202 employees. Each of
the plant employees save possibly nine,2' retained after February
19 his or her status as an employee of the Rayon Company 28 As
stated below, on or after September 23 the plant employees returned
to work, with the exception Iof certailf employees in the spinning
department who were replaced by other employees under circum-
stances more particularly hereinafter set forth.21 For reasons there
stated the spinners who were replaced, were entitled to their positions,,
upon the application which they made 30 Hence, their replacement
did not affect their continuing status as employees.31
As already set forth, from February 19 to February 27, 1939, 158,.
that is, a substantial majority, of the 202 employees applied for mem-
bership in the Union '32 and thereby designated the Union as their
representative for, the purposes of collective bargaining.33 The
respondents contend that 9 of the 158 employees never desired to be
represented by the Union,34 and that 34 others 35 at various times after
designating the Union repudiated respectively such designation by
7" This figure includes J. Derosler whose name does not appear on the February 18 pay
roll, but who bad been given a leave of absence by the Rayon Company because of illness.
It does not include Albert Boissy who was discharged by the Company prior to the strike
zr A 'contention of the respondents that nine employees obtained other substantially
equivalent employment is treated hereinafter.
28 See Section 2 (3) of the Act . See also, N. L. R. B. v. Mackay Radio & Telegraph Co.,
804 U. S. 333.
26 See Section III B , infra.
"" See Section III B, infra
nThe M H. Rtitzwoller Company v . N. L. R B, 114 F. ( 2d) 432 (C. C. A 7) enf'g.
Matter of The M. H. Rttzwoller Company
America, Local No 28 , 15 N L R B. 15
and Coopers ' International Union of North
82 The parties agreed that 127 union membership application cards, signed by employees
within the above unit, bear authentic signatures The authenticity of signatures of em-
ployees in the unit on other cards was established by interrogation at the hearing, as,
well as by the corroborative evidence of union dues , attendance and strike benefit records.
The names of the 158 employees are set forth in Appendix A attached hereto and part
hereof -
13 N. L. R. B. v Somerset Shoe Company , 111 F. ( 2d) 681 ( C. C A. 1 ), enf'g as mod.
Matter of Somerset Shoe Company and United Shoe Workers of America, 5 N. L. R. B. 486.
84 These nine employees are Gaetane Czarn, Margaret Desbiens , C Dicandia, Aime
Fortier, Theresa Haggert, William Kirkby, Henry O'Rourke, Adelard Savoie, Sr., and Joseph
Turner
a; These 34 employees are Edmund Ballou , Theodore Beauchamps , William Belisle,
Romeo Bertrand , Theodore Blanchard , Albert Clark, Jr , Earl Cornell, Lester Cornwall,
Florida Czarn . Stanley Czarn , Ellis Desbiens , Alcide Giguere , Francis Ragan, Earl Kempton,
Joseph Lacourse , Henry Leblanc , Pasquale Lonbardi , Ernest Marien, Ronald McDonald,
David Poirier , A. Monk , Walter Pasek , Rene Paradis , Carl Peterson , Mary Rominyk, Brad-
ford Seagrave , -Edward Sherman, Aldy Tessier , , Frank Thibeault ;, Stacia Uruski, Rene
.Voyer , George Walker, Mary Wecal , and Frederick Woodworth.
I
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repudiating their membership in the Union. Since a majority of -the
202 employees designated the Union as their bargaining agency,
whether or not these 43 employees did so, the contention of the respond-
ents is without materiality. Moreover, we are satisfied, and we find,
that the defections of these employees from the Union, and their
repudiations and withdrawals of membership in or designation of the
Union, to the extent that they occurred, resulted from, and were attrib-
utable to the unfair labor practices of the respondents hereinafter
found, in refusing to bargain collectively with the Union, and in
interfering with, restraining and coercing the plant employees in the
exercise of rights guaranteed them under the Act 36 The true desires
of the 43 employees must be presumed to have continued to be, and
at all times material since their applications for union membership,
for representation through the Union, and we so find. Such defec-
tions, repudiations, and withdrawals could not affect the designation
by these employees of,the Union as bargaining representative.37
We find that a majority of the 202 employees continued their desig-
nation of the Union as bargaining representative during the pend-
ency of the strike and at all times herein material. On September
22 and 23, 1939, a majority of the employees in the appropriate unit
signed a statement, mentioned below, acknowledging the Union to
86 At the hearing the evidence of renunciation of union designation in substantially all
cases took the form of testimony given on the stand by the employees involved in response
to interrogation by the respondents' counsel in the presence of officials of the respondents
attending the hearing, and was uncorroborated by other facts. Many of these employees
had been questioned in the ofces of the Rayon Company by the respondents' counsel prior
to the hearing concerning their union affiliation In an analogous case we stated • "We
are inclined to question the probative value of testimony concerning piefeiences in union
affiliation adduced in the presence and at the instance of the employer." . . .: Matter
of May Knitting Company, Inc. and United Wholesale and Warehouse Employees of New
York. Local No 65, C. 1. 0•, 9 N. L. R B. 938, at 942 Cf : Matter of Moltrup Steel Prod-
vets Company and Steel Workers Oiganizing Committee Lodge No 1202, 19 N L R B.
471 And in another case recently decided we discredited testimony "designed to rebut
the effect of the applications of [the witnesses] for [union] membership," gi'ing weight to
"the fact that they were in the employ of the . . . respondent at the time when they
testified at its request " Matter of Texarbana Bus Company; Inc and Two-States Trans-
portation Company, Inc. and Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, affiliated with the American Federation of Labor,
26 N. L R B 582. Although employees are safeguarded against discrimination resulting
from testimony given under the Act by Section 8 (4) of the Act, evidence like this carries
doubt as to its own verity. We view such polling of witnesses on the stand under the
foregoing circumstances as an undesirable practice, likely to mterfeie with a flee expression
of choice of representatives, and of little evidential value
N. L R B v Bradford Dyeing Association (U S. A ), 310 U S 318, rev'g N L R B
V. Bradford Dyeing Association (U. S A.), 106 F. (2d) 119 (C. C A. 1), and enf'g Matter
of Bradford Dyeing Association (U. S A.) (a corporation) and Textile Workers' Organizing
Committee of the C 1 0 , 4 N T, R B 604 ; International A ssociation of Machinists,
Tool and Die Makes Lodge No 35, etc, v N. L R B, 311 U S 72, aff'g International
Association of Machinists, Tool and Die Maters Lodge No. 35, affiliated with the Inter-
national Association of Machinists and Production Lodge No 1200, affiliated with the
International Association of Machinists V. N. L' R. B , 110 F. (2d) 29 (App D. C ), enf'g
Matter of The Serrick Corporation and International Union, United Automobile Workers of
America, Local No 459, 8 N. L. R. B. 621. National Labor Relations Board v. Highland
Park Manufacturing Co, 110 F (2d) 632 (C. C. A 4), enf'g Matter of Highland Park
,Manufacturing Co. and Textile Workers Organizing Committee, 12 N. L. R. B. 1238.
MANVILLE JENCKES _CORPORATION 395
be their collective bargaining representative.33 The respondents con-
tend that nine employees should not be included among those who
continued their designation of the Union as bargaining agency, be-
cause by the time of the reopening of the plant on September 23,
,1939,, mentioned below, they had obtained substantially equivalent
employment elsewhere.3C Were this contention meritorious, the
Union nevertheless, would have continued to be the choice of a ma-
jority of the employees in the appropriate unit.
We find that on February 27, 1939, and at all times material, there-
after, the Union was designated and selected by a majority of the
employees of the Rayon Company at the Woonsocket plant in the
unit above found appropriate, and pursuant to Section 9 (a) of the
Act, was on that date, at all times material thereafter, and now is
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment. , ,
4. The refusals to bargain; interference, restraint, and coercion
On February 19, after the organizational meeting above mentioned,40
the Union wrote the Rayon Company informing it that the plant
employees had "stipulated said union as their sole collective bargain-
ing agent," submitting a list of the grievances which the employees
had with their employer, and stating that the Union was ready,to
discuss these grievances and "a possible basis for settlement of the
current dispute." On February 20 the Rayon Company sent each
plant employee a "notice" which Lockhart had prepared, stating :
"In. answer to, inquiries from our employees as to whether it is neces-
sary for an employee to belong to a union in order to hold his job
in our company, we desire to advise as follows : An employee has
the right to join any union he wants to join. On the other hand, he
is not required to join a union. Furthermore, he has the right to
resign from a union at anytime or cancel his application for member-
ship. Whether he joins a union or refuses to join, or joins and then
withdraws, makes no difference whatever to the company. It will
have no bearing on his job."
On February 23, 1939, while the strike was in progress, the Rayon
Company and the Union met. The Company was represented by
Lockhart and its attorney, one Smith ; the Union by its officials and
representatives. The Union stated that it represented for collective
bargaining purposes a substantial majority of the employees, and
88 See Section III A 4, infra.
ae These nine are Harold Bouvier , Napoleon Durand , J. Armand Fluette, Noel Giguere,
Stella . Jarowskl , -Oscar Landry, John Nordberg ,• Alfred St. Germain , and Wilfred St.
Germain.
11 See Section III A I, supra
396 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith stated that the Company would assume that the Union repre-
sented a majority of the plant employees. Although at the confer-
ence which followed, an agreement was tentatively reached upon
some matters including the Union's request for certain improvements
in health and safety conditions at the plant,41 the Union failed to
obtain an agreement upon matters regarded by its as most significant,
viz., an increase in the wages of the spinners, a decrease in their
work load, and initiation of a "closed shop" policy at the plant.42
A proposal of the Company that the strike end and the plant reopen'
upon the same conditions which existed in the plant at the beginning
of the strike was rejected by the Union.
Thereafter, in March, the Rayoli Company by personal solicitation
sought to induce the body of its employees, including those on strike,
to return to work, on the Company's terms. Foreman Bunker of
the spinning department approached various spinners and urged
them to return, telling them that physical improvements of the plant
had been made. The overseer,and two foremen of the chemical de-
partment made similar appeals to employees of that department. On
March 17 the Company mailed to each employee a letter addressed
by it to the plant employees generally, a copy of which was sent
the Union, wherein the Company stated that it "could not afford to
meet . . . [the] request for higher wages and changes in working
schedules;" that the "selling prices of rayon does not produce earn-
ing capacity to pay higher wages or otherwise increase production
costs," that it "regretted" the loss of wages by the employees, and was
"ready to start up the plant at once if the workers are willing to
work on the same terms with respect to wages and working schedules
which prevailed before the plant was closed," otherwise the Com-
pany "has no choice but to allow the plant to remain closed," that
"If the Company's position in this matter is not entirely clear, it
will be pleased to make fui-ther explanations to any employees or
their representatives." 43
41 Before the strike, the spinners complained of bad working conditions in their depart-
ment, which resulted in their suffering sore eyes , and gastric distuibances See, Alice
Hamilton , Occupational Poisoning in the Viscose Rayon Industry, U. S. Dept. of Labor,
Div of Labor Standards Bul. No. 34 , Washington, D C , 1940.
2 By "closed shop " the Union sought the agreement of the Rayon Company to make
membership in thp Union a condition of employment as provided by Section 8 (3) of the
Act. The parties also discussed requests of the Union for the placing of 47 large cans ins
the chemical room to replace smaller ones ; rotation of shifts in the finishing room ; the
discharke of the day help boss in the spinning room ; departmental seniority rights for
plant employees ; a guarantee by the Company against discrimination because of union
membership or acts ity ; and permission to 'collect dues during working hours and post
union notices in the plant.
4 On March 20 the Union by telegraphic communication advised the Rayon Company that
"all of your employees , with the exception of the spinners , have been and still are available
for employment should you call them .", As set forth above , the spinners had called the
strike.
MANVILLE JENCKES CORPORATION . I 397
On March 22, 1939, in pursuance to a request by the Union, the
Rayon Company again met with the Union. The Company agreed
to some demands of the Union which were minor in character, but
adhered to its position with respect to increasing the wages and
decreasing the work load of the spinners, and maintaing a closed
shop. In regard to increasing wages it repeated its statement that
it was unable financially to take such action. However, it refused to
demonstrate the verity of this assertion, saying that information
about its business was confidential. The Union asked that the Rayon
'Company make counterproposals to the Union's requests. The Com-
pany refused to do so.. Attorney Smith said that the Company had
indicated clearly its position.
On the following day two plant employees, one Scott of the
mechanical department and one Romaine of the cone department,
caused-to be advertised in thL local Woonsocket newspaper, The
Woonsocket Call, a "notice" announcing that an "Important meeting"
for plant employees "only" would be held on the night of March
24 in a hall known as The Chateau. The notice was signed by the
"Woonsocket Rayon Employees' Committee," the only members of
which were Scott and Romaine. It was the purpose of these indi-
viduals to initiate a movement at the proposed meeting which would
break the strike and result in all plant employees returning to work,
regardless of any grant being made by the Rayon Company of the
Union's requests. During the week preceding publication of this
notice at least three of the plant, supervisors engaged in activity
similar to that' of Foreman Bunker and Overseer Holstius, above
mentioned. On about March 23 Foreman Bokowski of the spinning
room called at the home of a spinner who worked under him, and
requested the employee to return to work. On March -23 one Hoar,
an overseer in the finishing room, urged two employees under his
supervision to return to work. About a week before, Master Mechanic
Gilmore suggested to another employee that that employee attempt
to "get back 15 or 20 spinners," that there were "better jobs in the
offing." Some 2 days before the announced date of the- meeting,
Overseer Hoar informed one employee of the meeting and thereafter
advised him to tell other employees about it. He told that employee
and two other employees that those who attended the meeting would
be "much nearer their jobs." At the hearing Hoar denied making
these statements, although he testified to having mentioned to the
three employees on the day 'preceding the, meeting the notice of
the meeting which had appeaed in The Woonsocket Call.. In view
of the' nature of the meeting called, the policy which the Rayon
Company through its supervisors and other agents then and there-
after, was pursuing, and other/facts herein set forth, we are unable
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to give credence to Hoar's denials . We find, as did the Trial Ex-
aminer, that Hoar made the foregoing statements. For similar rea-
sons we do not credit Gilmore's denial, at the hearing 'respecting
his statements above set forth _44 ' '
On March 24 a group of plant employees assembled at The Chateat%.
Scott, one of the two members of the self-constituted Woonsocket
Rayon Employees Committee, assumed charge. Before the meeting
began two supervisory or managerial employees of the plant; one
Demarais and one Blackwood 4,1 had stationed themselves at the
entrance to the hall for the purpose of preventing admittance by`per-
sons not in the employ of the Rayon Company, particularly the
president and general secretary of the Union. At the hearing Scott
testified that Demarais and Blackwood were invited to the meeting
because their knowledge possessed as a result of their work in the
company employment office would enable them to identify those to
be admitted. Soon after the meeting convened the members of the
Union entered the hall en masse. The employees then voted to replace
Scott as chairman with the president of the union local. Immediately
Scott, Romaine, and some of their adherents left the hall. The
meeting shortly adjourned without anything being done.
At about this time Scott and Romaine prepared and circulated
among the plant employees certain petitions setting forth that the
signatories thereof were willing to return to work.46 Not more than
u Gilmore admitted at the hearing that he had had a conversation at his home with the
employee in question , and on cross-examination commented , " I was much surprised to
hear [the employee] spill it here."
'' The respondents contend that Demarais and Blackwood are not supervisory or mana-
gerial employees These employees are stationed at the gateway through which the plant
employees , with certain exceptions , enter on their way to work. They occupy an office,
called the employment office , and check and keep a record of the time each employee enters
the plant . This record is transmitted to the main office. Demarais and Blackwood receive
written applications for employment from prospective employees , and each new employee
,s given an identification card signed by them. When a particular,departrnent is in need
if a new employee, Demarais or Blackwood recommends to the department overseer from
the applicants available the names of those in his judgment most likely to fill the need.
and from these names and recommendations the overseer selects the person to be hired.
At least two employees were hired directly by Demarais and Blackwood, and Demarais
directly hired three or more other employees subject to approval of the overseer. It
appears that the Rayon Company itself viewed these employees as identified with the
management in employment relations , since Demarais and Blackwood , along with 35 other
employees , were instructed by Lockhart on or about February 20 "to refrain from discussing
with any of our employees , any questions relating to unions or union activities." On
the basis of all the evidence , we find that Blackwood and Demarais were supervisory or
managerial employees, that when participating in the Chateau meeting they acted as
representatives of the Rayon Company , that the employees reasonably understood that
such was the case , and that the respondents are responsible for such participation
International Association of Machinists V N. L R B 311 U S. 72, aff'g 110 F. (2d) 29
(app D C ), enf'g Matter of The Serrick Corporation and International Union, United
Automobile Workers of America, Local No 459, 8 N L R B 621, reheating denied, 311
U S 729 1
as Scott testified that he threw his petition away, and Romaine that hers was burned
by her husband after she had discussed these proceedings with Board's counsel prior to
the hearing.
f
MANVILLE JENCKES CORPORATION 399
.36 employees signed these petitions. Toward the beginning of April
Gilmore, the master mechanic, told the president of the Rayon Com-
pany Local of the I. T. U., "You know, Steve, just between you and I,
you are on the wrong side of the fence clown there." He then' inti-
mated that the employee might be promoted were he not on "the
wrong side," saying, "You know, all the good jobs down there are not
gone yet." Gilmore testified that if he said anything about a "fence,"
lie did so "in a joking manner." The Trial Examiner who heard the
testimony and observed the witness was satisfied and found, as do we,
that Gilmore made the above-mentioned statements.
On April 11, at the suggestion of the Union, the Union met with
the Rayon Company. The Union submitted to the Company for con-
sideration a draft collective labor agreement between the Union and
the Rayon Company, covering wages, hours of service, and other
working conditions of the plant employees. At the request of the
Company, the meeting was adjourned in order to give it time in which
to study the agreement. Two days later the parties again met. The
Company returned the draft to the Union, stating that since the
parties still were in disagreement with respect to increasing wages