National Carbon Co., Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1946

65 N.L.R.B. 830 (N.L.R.B. 1946)

In the Matter of NATIONAL CARBON COMPANY, INC. and UNITED GAS,
COKE AND CHEMICAL WORKERS OF AMERICA, C. I. 0.
Case No. 6-R-1155
SUPPLEMENTAL DECISION
AND
ORDER
February 6, 194,6
Upon objections filed by United Gas, Coke and Chemical Workers
of America, C. I. 0., herein called the"Union, to conduct affecting the
results of the election held on May 25, 1945, pursuant to a stipulation
for certification upon consent election agreement entered into between
National Carbon Company, Inc., herein called the Company, and the
Union, a hearing was held before Henry J. Kent, Trial Examiner, at
Clarksburg, West Virginia, on September 6, 1945. The Board, the
Union, and the Company participated in the hearing by their
representatives.
On October 15, 1945, the Trial Examiner issued his Report and
Recommendations, a copy of which is attached hereto, in which he
found that the Union's first objection,' standing alone, provided ample
ground for setting aside the election, and he so recommended.2 There-
after, the Company filed a Bill of Exceptions to the Report and Recom-
mendations and Request for Oral Argument, and a Brief in Support
of the Exceptions.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Company's request for oral argument
is hereby denied.
The Board has considered the Report and Recommendations, the
Exceptions, and the entire record in the case, and, except as herein
1 The Union 's objections are in substance that : (1) the Company , by certain of its
supervisors , made coercive statements to employees during the e1 etion campaign , (2)
an announcement made by the Company cocicerning a savings plan for the employees was
timed to influence them to vote against the Union , and (3) statements in a letter sent
by the Company a few days before the election to the employees eligible to vote were
coercive
2 Accordingly, the Trial Examiner made no findings wit' respect to the second and
third objections of the Union
65 N L R. B, No 14G.
830
NATIONAL CARBON COMPANY, INC. 831
modified, adopts the findings, conclusions, and recommendations of
the Trial Examiner.
In substance, the Trial Examiner found that by the statements of
Foreman William Golden to employee Ralph Meister a month before
the election of May 25, 1945, the Company made anti-union threats
and utterances which interfered with a free choice of representatives
by its employees at that election. While we agree with this finding of
the Trial Examiner, we are also of the opinion, for the reasons set
forth below, that the conduct of the Company upon which the Union
bases its second objection also prevented an expression in the election
of the employees' free choice. We have examined the third objection
but find it unnecessary to pass upon its validity, in view of our findings
on the first two objections.
With respect to the Union's second objection, the record establishes
the following:
Several years ago, there was put into effect at the plants of the
Union Carbide and Carbon Corporation and all its subsidiaries in
the United States, including the Company, a savings plan. The plan
was made available to any employee who had met certain requirements
as to tenure of service. Briefly stated, it provided that any eligible
eulployee could have up to 71/2 percent of his wages deducted each pay
day by the Company and placed in a savings fund, with the Company
committed to pay into the fund, depending upon the circumstances, a
sum equal to 10, 20, or 30 percent of the employees deduction. Upon
termination of the plan, or upon the employee's discharge, disability,
or death, the sum of both contributions plus 2 percent per annum com-
pounded interest was to be paid to the employee.
In the late forenoon of May 25, 1945, the day of the election, H. T.
Reid, the division works manager of the Company, telephoned C. E.
Margeson, the Company's plant superintendent, and informed him that
the savings plan which was then in effect, but which was due to expire
on June 30, 1945, was going to be renewed. In the early part of the
afternoon of the same day, Margeson posted on the bulletin board of
the plant a notice under his signature, announcing that effective July
1, 1945, a savings plan would be put in effect with the same provisions
as the one expiring on that date. Because the voting hours in the elec-
tion were from 5: 30 a. in. to 8 a. in. and from 1: 30 p. m. to 5: 00 p. in.,
only about one-half of the eligible employees had cast their ballots
before the notice was posted.
It is clear from the foregoing that the renewal of the savings plan
represented an extension by the Company of an employee benefit of
considerable monetary value. That the employees had a substantial
interest in the renewal of such a plan cannot be gainsaid , as borne
out by the fact that for some time prior to the announcement of the
renewal many inquiries had been directed by employees to Margeson
679100-46-vol 65-54
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and other company supervisors as to whether the savings plan was
going to be renewed.3 In view of this substantial interest on the part
of the employees, it follows that the promulgation during the very
course of the election of a decision by the Company favorable to that
interest would tend to place the Union in a less favorable position in
the minds of the employees. Accordingly, although it is difficult to
determine the full effect of the announcement, we are of the opinion,
in the light of the employees' concern as to the future of the plan and
the timing of the Company's action, that the announcement influenced
the voting of the employees who cast their ballots after it was posted.
While the Company's action may, as asserted by it, have been taken in
good faith,4 the issue here involved is not its bona fides, but solely
the effect of its conduct. Moreover, the record discloses no reason
why, in view of the fact that the existing savings plan was not due to
expire for over a month, and in view of the pending election, the
Company could not have postponed the announcement until after the
election.
Accordingly, we find that both by the above-described statements
of Foreman William Golden and by the announcement of the renewal
of the savings plan. the Company engaged in action preceding and
during the election which prevented an expression in the election
of the employees' free and unfettered choice of a bargaining repre-
sentative. We shall, therefore, set the election aside. We shall direct
a new election at such time as the Regional Director advises us that
circumstances permitting a free choice among the employees have been
restored.
ORDER
IT is HEREBY ORDERED that the election of May 25, 1945, among the
employees of National Carbon Company, Inc., Clarksburg, West
Virginia, be, and it hereby is, set aside.
MR.-GERARD D. REILLY took no part in the consideration of the above
Supplemental Decision and Order.
REPORT AND RECOMMENDATIONS
Mfr W. G. Stuart Sherman, for the Board.
Mr. Clarence L. Sager, of New York, N Y., for the Company
iJessi q. William Ross and Edward Cadle, of Charleston, West Va , for the Union.
STATEMENT OF THE CASE
On May 25, 1945, pursuant to a stipulation for certification upon consent elec-
tion agreement entered into between National Carbon Company, Inc., herein
a Margeson himself testified that such inquiries were made.
4 The Company alleges that the announcement was posted in the ordinary course of
business , and was in no way related to the election.
NATIONAL CARBON COMPANY, INC. 833
called the Company, and United Gas, Coke, and Chemical Worke'rs of America,
C. I. 0, herein called the Union, on April 21, 1945, and approved by the Regional
Director for the Sixth Region (Pittsburg, Pennsylvania), on April 23, 1945, an
election by secret ballot was conducted under the direction and supervision of
the Regional Director for the said Sixth Region. Upon the conclusion of the
election, a Tally of Ballots was furnished the parties in accordance with the
Rules and Regulations of the Board.
As to the balloting and its results, the tally showed as follows-
Approximate number of eligible voters ------------------------------ 574
Valid ballots counted plus challenged ballots ------------------------ 526
Votes cast for United Gas, Coke , and Chemical Workers of America,
C. I. 0---------------------------------------------------------- 252
Votes cast against the above-named participating Union--- ---------- 269
Challenged ballots------------------------------------------------- 5
On June 1, 1945, the Union filed objections to the election. On July 21, 1945,
following an investigation, the Regional Director issued a Report on the ob-
jections to the election, in which he found that the Union's objections raise
substantial and material issues with respect to the election and recommended
that the Board direct a hearing on the objections Thereafter, on July 25, 1945,
the Company filed exceptions to his report. On August 6, 1945, the Board di-
rected the Regional Director to issue an appropriate notice of hearing Pursuant
to the said order of the Board an appropriate hearing was held after due notice
before Henry J. Kent, the undersigned Trial Examiner, who had been duly
designated by the Chief Trial Examiner. Said hearing was held at Clarksburg,
West Virginia, on September 6, 1945. The Company and the Union appeared
and participated The pasties were afforded full apportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing on the
issues. At the opening of the hearing the Company moved to dismiss the pro-
ceeding on the ground that the Union's Objections to the Election had not been
timely filed. The motion was denied by the undersigned 1 The parties were
afforded an opportunity to file briefs with the Board. A brief has been filed
by the Company and considered by the undersigned On October 3, 1945, the
hoard ordered the undersigned Trial Examiner to prepare and file a Report
and (Recommendations
Upon the entire record in the case, including the objections filed by the Union,
the Report on Objections, the Exceptions of the Company thereto, the record
previously made, and from his observation of the witnesses, the undersigned
makes the following:
FINDINGS OF FACT
The Union's Objections to the Election are in substance: (1) that the Coin-
pany, by certain of its supervisors, made coercive statements to employees during
the election campaign ; ( 2) that announcements made by the Company con-
cerning a Savings Plan for the employees was timed to influence employees to
vote against the Union; and (3) that statements in a letter sent by the Company
a few days before the election, to the employees eligible to vote, were coercive s
1 A similar motion had been previously made by the Company , in its exceptions to the
Report on Objections , and, in effect , overruled by the Board by its Order directing a hear-
ing on the objections.
In the objections filed the Union also asserted that a different list of names of eligible
voters was used at the poles than the list of names previously agreed upon by the parties
lluung the hearing, the undersigned granted the Union 's notion to dismiss this allegation
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, the stipulation for certification upon consent election agree-
ment was signed by the Union and the Company on April 21, 1945.3 After leaving
the plant on the night of April 25, 1945, Employee Ralph Keister called for a
consignment of union leaflets left for him at a bus station in Clarksburg. On
his way home he visited a beer garden nearby and observed that a number of
the Company's e,!iployees were present there. He started to distribute the
leaflets to them and while he was engaged in this activity Employee Wilson
Brent called him over to the bar. Brent was sitting there beside William
Golden, the foreman in the graphite machine shop at the plant.
According to Keister's testimony which was substantially corroborated by
the testimony of Brent and also by that of Clifford Henderson, the following
conversation occurred between Golden and Keister 4
Q Did you speak to Mr Golden in the beer garden?
A. Yes, sir. Wilson Brent and Mr. Golden was sitting together, which,
after I give the leaflets to some of the boys, I walked over-Well, Wilson he
called me over where he was sitting with Mr. Golden.
Q. He was sitting with Mr. Golden?
A. Yes, sir.
Q Did you speak to Golden first, or did Golden ask you any questions?
Did he ask you what you were doing?
A. Well, he says, "What is the Union paying you for this?"
Q. "What is the Union paying you for this?" What did you say?
A. I replied, "Nothing."
He says, "What is the Union paying Paul Rush?"
Q. What did you say?
A. I replied, "Nothing." I said, "Paul Rush is in there fighting for the
Union because he believes in the organization."
Q. Yes. Then, what did he say? What did Golden answer to it?
A. He said, "I can't understand Paul Rush when he is making $160 an
hour." I mean, "I can't understand Paul Rush wanting a Union when his
average was $1.60 an hour, and the Union come out and printed a leaflet that
the machinist's wages would only be $1.45 an hour."
Q Did Mr. Golden also say that there was a probability if the Union got
into the shop that the plant would move to Morganton?
A. And,, then, Mr. Golden replied, he says, "You know something," he said,
"if the Union gets in this plant they will Shut it down and move it to Morgan-
ton, North Carolina."
Q. After Mr. Golden told you that the plant would probably move to Mor-
ganton, North Carolina, what else was said in connection-
A. I said, "Mr. Golden," I said, "they can't shut this plant down and move
it because they are making money at this plant, and they are not going to shut
any plant down that is making money for them."
3 It appears from facts set forth in the said agreement * that the Company is engaged
in commerce within the meaning of the Act; the Company also admitted that it was en-
gaged in commerce within the meaning of the Act ; and, in effect , the unit stipulated to
be appropriate was a unit of hourly paid production and maintenance employees, exclud-
ing supervisory, watchmen, guards, bricklayers, and clerical employees.
4 Henderson was not an employee of the Company. Brent, then an employee, was later
discharged in May 1945.
0 Rush was chairman of the organizing committee for the Union in the plant; he was
employed as a machinist by the Company and worked in Golden 's department.
NATIONAL CARBON COMPANY , INC . 835
And he say, "Well, by God, they did it to the tin mill, and they will do it
to the National Carbon plant." 6
And then, he asked me , he said, "How many men do you have signed in
my department?"
And I said , "Twelve men."
And he says, "Well," he says, "I am going to show the Union what seniority
is. They have been putting leaflets out that the Company hadn't been
applying seniority." He said, "I am going to take Paul Rush from his ma-
chine, and I have a couple of older men than he, than Paul Rush, with senior-
ity, and I am going to take him from the machine and bump him from the
machine."'
He says, "How many men do you have signed in my department?"
I says, "Twelve."
And he says, "I'll take six of them away from the Union."
I said, "How will you do it, Mr. Golden?"
He said, "That's easy. I will give them better jobs."
And he pulled $80 out of his pocket and wanted to bet $80 that he would
take six of these men away from the Union.
I said, "Mr. Golden, if I had $80 I would take that bet."
So, he got pretty hot and he said, "As far as Paul Rush is concerned," he
said, "by God ," he wasn't afraid of him, and he thought he was a better man
than him, and he could take him out and whip him anytime.
Golden was called by the Company to give testimony in respect to the above
conversation with Keister. He admitted that a conversation between them
had been held at about the time and place fixed by Keister, Brent, and Henderson,
but despite the fact that the incident happened within about 5 months previous
to his testifying, Golden's testimony respecting the details was vague and incon-
clusive : Although Golden admitted that he had talked to Keister or Brent about
the union activities of Rush, he said he thought any such conversations were
held after April 25, and that Rush's name was not mentioned during the conver-
sation in the beer garden. He also admitted that there had been some talk con-
cerning betting by Keister on the night of April 25, but he claimed that it was
Keister who offered to bet him that the Union would win the election and denied
that he offered to bet Keister that he, Golden, could induce six union adherents
in his department to withdraw from membership in the Union.
Basing his opinion upon his observation of the witnesses, the undersigned
concludes that Keister's version of the conversation with Golden on the night
of April 25, which was substantially corroborated by the testimony of Brent and
Henderson, is the more credible. Accordingly, he finds that Golden made the
anti-union threats and utterances attributed to him on that occasion by Keister.
There can be no doubt that the respondent is responsible for anti-union conduct
or utterances by Golden. Admittedly, according to the testimony of C. E. Marge-
son, the general superintendent of the plant, Golden was foreman of the graphite
machining department at the plant and as such had authority to make effective
recommendations in respect to the hiring, discharging or disciplining of em-
ployees in that department.
According to later testimony given by Henderson , Golden, in his conversation with
Keister , identified the tin mill as a plant which had previously been operated in Clarksburg
by the Weirton Steel Company.
' The record fails to show any change in Rush's work assignment.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company, however, contends that all supervisory employees of the plant
were instructed by management to maintain a neutral attitude in respect to union
activities among its employees and it urges that even if it should be found that
Golden's activities were in violation of the Act, they constituted but an isolated
incident and the Company should not be held responsible for his conduct.8
This contention of the Company lacks merit On the facts above, it is virtually
impossible to ascertain the full effects upon the employees' free exercise of the
right to select a collective bargaining representative of Golden's anti-union
threats and utterances made during the election campaign in the plant. In a
proceeding such as this, it is indeed unnecessary to find that the conduct com-
plained of its sufficient to warrant a finding that the Company thereby engaged
in an unfair labor practice.
On all the above the undersigned concludes and finds that the Union's first
objection to the election, especially in view of the closeness of the election, stand-
ing alone, provides ample ground for setting aside the election. Under the cir-
cumstances, he deems it unnecessary to pass upon the second and third objec-
tions of the Union set forth above.
RECOMMENDATIONS
Upon the basis of the above findings of fact, and upon the entire record in the
case, the undersigned recommends that the National Labor Relations Board va-
cate and set aside the election held in this proceeding on May 25, 1945, and the
results thereof.
Any party may, within 15 days from the date of this Report and Recommenda-
tions, file with the Board, Rochambeau Building, Washington, D. C., an original
and four copies of a statement in writing setting forth such exceptions to the
Report and Recommendations or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof. Immediately
upon the filing of the statement of exceptions and brief, the party filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director.
HENRY S. KENT,
Trial Examiner.
Dated October 15, 1945.
8 The record indicates that such instructions were given to its supervisors, including
Golden.